Tag Archives: law

Revenge Porn –It has never been o.k and now there is a law against it!

While the term “revenge porn” is not the term used in the bill (Criminal Code (Non-Consensual Sharing of Intimate Images) Amendment Bill 2018), the message is clear. Harmful behaviour is no longer tolerated.  Queensland has taken a stand against the increase of non-consensual sharing of intimate images.

Queensland Attorney-General and Minister for Justice Yvette D’Ath has advised “The government recognises that the non-consensual sharing of intimate images covers a broad range of conduct, relationships, motivations and modes of distribution,”

The bill to change the law was introduced in or about 2018. On 13 February 2019, the changes to the Queensland Criminal Code were passed through parliament and made into law. 

A brief summary of such an important law includes that (circumstance dependent);

  • People who share sexual or intimate images or videos of another person without their consent could now spend up to three years’ in jail in Queensland; and
  • Please who threat to distribute intimate or prohibited images or recordings is also a misdemeanour with a maximum of 3 years prison;

The new law includes that;

  • consent means – consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
  • Intimate image, of a person, means – a moving or still image that depicts;
  • the person engaged in an intimate sexual activity that is not ordinarily done in public; or
  • the person’s genital or anal region, when it is bare or covered only by underwear; or
  • if the person is female or a transgender or intersex person who identifies as female—the person’s bare breasts; and
  • includes an image that has been altered (digitally) to appear to show any of the things mentioned above, even if the thing has been digitally obscured if the person is depicted in a sexual way.
  • prohibited visual recording, of a person, means;
  • a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
  • a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

Distribute the images and pay the price

It is now clear. Section 223 of the Queensland Criminal Code provides that it is an offence to distribute intimate images of a person without the person’s consent in a way that would reasonably cause the person distress.

It is irrelevant whether the person distributing the images intended to cause distress or actually caused distress.

Rectification order

If a court finds a person guilty of these offences, it can order that the images or recordings be removed, deleted or destroyed within a stated timeframe. If the offender fails to comply with the order, they can be found guilty of a further offence.  Such offence is punishable  by a term of imprisonment up to two (2) years.

This will be an increasing area of law so watch this space.  This law has been passed in Queensland, which means the jurisdiction of the law is in Queensland.  For matters outside Queensland, Commonwealth Law may apply.

If you have been subject to inappropriate images and video’s being sent via text, email, social media or the internet.  We highly recommend and also implore you to contact your local Police Station in addition to your State and the Federal Safety Commissioner. 

If you are concerned about actions against you, legal advice should be obtained about your specific circumstances, in addition to contacting the Government entities. You can also seek counselling and advice from Kids Helpline on 1800 55 1800 (if you are under 25), or Lifeline on 13 11 14.

The information in the Tropical Lawyer articles are provided as guidance only and legal advice should be sought specific to your circumstances and the application of the law to your circumstances.

Tips for dealing with Insurance following the flood

 

One of the main issues with policies will be are you covered for “flood water” and/or “stormwater”?  Secondly, what type of water impacted your property. Your policy may cover you even though at first glance it does not appear that way.

Keep records

  • While everything is fresh in your mind, make notes about the event. When water first came into the property, where the water was coming from and the times;
  • When calling your Insurer, note down the name of the representative you are speaking too and the reference number (if any);
  • Take a screenshot of your phone call details;
  • Confirm the advice/information received in an email;
  • Keep samples of the materials and fabrics to show assessors;
  • Do request instructions on how to deal with the damaged property;
  • Do not move anything or clean anything without taking photos and/or video’s and speaking with your insurer. You may even wish to have some neighbours come and view the damage as well for extra witnesses;

Quantifying the damage and dealing with Insurers

  • Do print out or review online a copy of the terms of your policy;
  • Do ask the Insurer to email you the information and documents they need. It is important that you take your time in filling in the forms/advising of the information.  Only give the information they ask for;
  • Ensure emergency work is authorised by the Insurer in writing, before commencement;
  • Do not answer questions you do not know the answer to, write down the information the Insurer is seeking, obtain the information then advise;
  • Do question your Insurer if/when they say no;
  • Question policy definitions and exclusions. On closer inspection, you may be entitled to be insured for the damage when an Insurer says no;
  • Do ask your Insurer for a copy of the Loss Adjustor Report, they commission from their loss adjustor;
  • Do question the Report and seek a second opinion;
  • Do check to ensure that any works to be performed are by licensed and insured professionals;
  • Do obtain your own independent report on the damage;
  • If you are in urgent financial need you can ask your insurer to fast track your claim and make an advance payment within five business days of you demonstrating your urgent financial need. Any advance payment may be deducted from the total value of your claim;
  • If your claim has been finalised within one month of the disaster, your insurer must give you six months from the finalisation date to ask for a review of your claim (for instance, if you think the insurer has not accurately assessed your loss), even if you have signed a release.

Complaints

Insurance companies will have a number of claims they are processing.  It is likely that there may be some delays.  Your Insurer will have a complaints procedure on their website that should be followed in the event that you wish to lodge a complaint.

Following this, the Australian Financial Complaints Authority (“AFCA”), is a free and independent dispute resolution body for Insurance complaints.  AFCA request that you first make contact with the Insurer for your complaint and if not resolved to follow their complaints process on their website.  https://www.afca.org.au/

Further Assistance

The Insurance Council of Australia have advised that they will hold two insurance forums in Townsville to provide claims guidance.  

The information provided in this article is general in nature and is intended to provide a summary or general overview.  It is not intended to be comprehensive and does not constitute legal advice.  You should obtain legal advice specific to your circumstances.

 

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Casual workers can have unfair dismissal rights too!

All too often I see and hear people comment that casual workers don’t have rights in regard to unfair dismissal.  “You’re a casual, they can sack you at any time.”

This is a false statement and casual workers who rely upon this information are potentially losing out on entitlements.  Casual workers do have rights, which include, in some circumstances, actions for unfair dismissal.

Casual workers are excluded from bringing unfair dismissal claims unless they:

  • worked on a regular and systematic basis,
  • had a reasonable expectation of ongoing employment, and
  • worked in excess of 6 months (if their employer is not a small business employer) or 12 months (if their employer is a small business employer (under 15 staff).

Regular and Systematic basis

The Fair Work Commission considers the following factors when determining whether a casual’s employment was regular and systematic:

  • the worker is offered work regularly and generally accepts work when offered
  • a pattern or system is clearly established that the casual worker is offered work regularly and the worker would accept that work.
  • the casual worker generally works as part of a regular crew and has a reasonable expectation of work on particular days of the week. The casual does not need to be told each and every day to be required to work in these circumstances. This illustrates evidence of a regular and systematic basis for the employment.
  • there is a clear pattern of work being offered with reasonable frequency and of the work being generally accepted.
  • the employer has a reasonable expectation that the casual worker would work when work is offered. The pattern of employment cannot be described as irregular, informal or occasional.
  • it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.
  • whether during the period of employment there was a reasonable expectation of ongoing employment.
  • the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.

The recurring factors are that a casual worker is regularly offered work when it was available and came to expect that.

Reasonable expectation of ongoing work

The Fair Work Act also provides that a “long term casual worker “ is a national system worker of a national system employer at a particular time if, at that time:

(a)  the worker is a casual worker; and

(b)  the worker has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

The next step a casual need to consider is if they meet the requirements to bring an unfair dismissal on the basis that the dismissal was harsh, unjust or unreasonable. Strict 21-day time limits apply, so legal advice should be obtained urgently.

Employers and workers should also remember that just because a worker is called a casual does not necessarily mean that they are one! Many times, casuals have been found to be permanent employees.

This article is written to provide information only.  You should consult with a qualified lawyer with questions about your employment entitlements, specific to your circumstances.  State and Territory workers will need to review the State and Territory Laws, where they are not a national worker.  Other avenues also exist for general protection matters (involving termination) which has not been covered in this information sheet.

School aged young workers and employment – what do you know about it?

Young worker

A few months ago, our eldest daughter (who is 15) started her first paid job.  It was a bittersweet moment.  My bank account was grateful and thankful to the employer for providing her with a job.  But, my head and heart felt concerned and anxious about how our eldest baby will experience her first job.

Our eldest daughter has been tasked with 7 years of emptying the dishwasher as her one chore.  Now, this is paid work within the home so I expect (as any employer would) for the job to be done.  However, sure enough, I have had to remind her to unload said dishwasher nearly each and every one of those days …for 7 years.  Hence my concern regarding her entering the workforce.  As the relationship dynamics are different, would she perform well? What if she doesn’t? How will her employer deal with her? And my “inner protective lioness”  moment of how is she going to deal with rude customers?

Fast forward to now.  She commenced her employment with an employer who has an impressive training technique.  She felt comfortable enough with the trainer and manager to ask a lot of questions during her training.  She likes her job.  Her employer likes her work performance and I like and appreciate her employer’s style.  She has dealt with rude customers in a way in which I am super proud! On this occasion, it all worked out.

In contrast, I have heard about the other end of the spectrum with inadequate training, questionable verbal interactions and bullying of young workers. Employers must take reasonable steps to ensure that a child (a young worker) is not subject to deliberate or unnecessary social isolation or any behaviour likely to intimidate, threaten, frighten or humiliate them.  Apart from rupturing young workers confidence, this is a serious health and safety risk.

Employing young workers is beneficial to businesses as it significantly reduces wages.  However, this also means that an employer must understand and adapt to the special characteristics involved.  The special characteristics of young workers include, but are not limited to;

  • The size of the person and physical maturity;
  • Their general behaviours and maturity;
  • Their work experience and training;
  • Their confidence to raise problems with their supervisors;
  • Their ability to make mature judgements about their own safety and the safety of others;
  • Their ability to cope with unexpected and stressful situations; and
  • Special characteristics that mean young workers are more likely to be affected that adults in the same situation.

Each State and Territory have legislation dealing with child employment which supplements the Fair Work Act 2009. This article is dealing specifically with the Queensland Child Employment Act 2006, the Child Employment Regulation 2016 (commenced 1 September 2016) and school-aged workers.

The common misconception is that children must be 14 years and 9 months in which to seek and obtain employment.   Queensland legislation generally prohibits (unless approved) the employment of young workers younger than 13 years of age.  Prior to age 13 approved circumstances include: for entertainment employers, family business and some forms of supervised employment such as deliveries and charitable collections.

Hours of work

For those young workers who are still at school there are restrictions on hours that can be worked on a school day and non-school day:

  • During a school week, a school-aged child can work a maximum of 12 hours per week;
  • Work on a school day is a maximum of 4 hours only; and
  • On days that children are not required to attend a school they can work a maximum of 8 hours, but again this is capped for a 12 hour week during school weeks.

During a non-school week, a school-aged child can work a maximum of 38 hours.

Times of work

Restrictions are in place regarding the times for work:

  • School-aged and young children cannot work between 10pm and 6.00am.
  • Those children between the age of 11 and 13 years (that carry out delivery work) cannot work between 6pm and 6am.

Children working in a family business are not subject to these restrictions, however family businesses should be mindful of the power the Director-General of the Department of Justice and Attorney- General’s office has to issue a work limitation notice (where it is reasonably believed that the work may interfere with a child’s schooling or be harmful to their safety, health, physical, mental or social development).

Business Owners

Business owners who should already be familiar with our Federal workplace laws should also review the Child Employment Act 2006, Child Employment Regulation 2016, the Child Employment Guide and Children and Young Workers Code of Practice 2006.

There is a number of published materials available online to assist employers, however, these should be tailored specifically to the workplace and the young workers employed.

The Fair Work Ombudsman has published the “Best Practice Guide – An employer’s guide to employing young workers.” Located here.

Queensland Work Health and Safety has published guidance material.  Located here.  In addition to a “Young Worker Safety Toolkit” located here.

Practical tips for working with young workers include: invite interactions, set short terms goals, tailor training to cultural, literacy and learning needs, provide a thorough induction and continued supervision, check for understanding and provide positive affirmations on their work progress.  If you are particularly keen, try reverse mentoring! Many young workers are highly skilled in tech and social media skills which may be beneficial to your business.

Parents/Guardian

Your school-aged or young child worker will need you to complete a parents/guardian consent form.   A parent/guardian must ensure:

  • they are present if it is their baby that is employed;
  • they provide a parent’s consent form to the employer before employment can occur;
  • they inform the employer if their child’s school hours change by submitting a parent’s consent form within 14 days of the hours changing.

Parents and guardians should familiarise themselves with the law surrounding young workers employment to ensure that both their child’s rights and obligations are being met.

The Queensland Department of Justice and Attorney General has published a “Child Employment Guide” located here.  By law, this guide is required to be displayed conspicuously in a child’s (young workers) workplace where it can be easily accessed by the child to read (by the employer).

The Fair Work Ombudsman has published a “Best Practice Guide – A Guide for young workers” located here.

The Regulations also provide for circumstances when your child is ill, parent/child communication during working hours and employers requirement to provide notice.

Young entertainment workers rights and obligations are not covered in this article.  This article provides very brief general information and does not cover all aspects of young workers in employment.  This article was written in 2016 qnd the law may have changed since then. Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the law specific to your circumstances.

The law is just so old and outdated! – Or is it?

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I have seen a number of posts on social media about how old and archaic some laws are, citing the title of the legislation with the year it was enacted as the example of how old it is.  Now this article is not a debate about if the law is right or wrong or even if it’s relevant to our current times.   Let’s be honest, everyone’s opinion is naturally different.  You would need a year off work, cartons of wine, lots of patience and buckets of coffee to really delve deep to consider the legal, moral and ethical considerations of our laws.  This article briefly addresses the myth regarding legislation and its title. Not everyone has had exposure to the law so it can be confusing if you don’t understand how law is enacted and later amended.

I follow a few bloggers online through social media.  Family Law is a discussion that comes up a lot on social media blogging and group pages. I often see comments about separation and discussion generally turns to the Family Law Act 1975 (Cth) (“FLA”) stating, “how can a law made in 1975 be applicable to our current times,” and “the law needs to change it was made in 1975,” just to name a few.

Myth v Fact. At the time of writing this article, the FLA has, since 1975, been amended no less than 79 times.  Now, not all of these are major amendments however, this law has been amended 79 times in 41 years.  Following these 79 amendments the title of the FLA has stayed the same with the year that the law was enacted, 1975.

As another example the Criminal Code 1899 (Qld) (“Code”).  The Code again delivers this same assumption “it’s super old.”  Hello!, The title says 1899!  However, again this law has been amended a number of time since its enactment.  One of the most recent at the time of writing this article is the insertion of a new section of the Code, s 315A regarding updated domestic violence laws made by the Criminal Law (Domestic Violence) Amendment Act 2016.

How is the legislation changed? By a range of people who have been voted into Parliament.  In brief, (as there really is a lot to changing Legislation);

  • The Queensland Parliament is made up of members of political parties (voted in).
  • A Bill is made (by a Minister) with a proposal for a new law or amendment and the Minister then seeks approval from cabinet.
  • If the cabinet approve, the Parliamentary Counsel prepares the Bill and its presented to the cabinet and members.
  • If approved, it is read into Parliament by the Minister (all members are provided with a copy).
  • The Bill is then read a second time (the minister talks about what the Bill intends to achieve). Discussion and debate takes place, sometimes changes are made.
  • The third reading then takes place, Parliament then votes.
  • If the Bill is voted in, it is sent to the Governor for royal assent. When assent is given the Bill becomes the law and it is then titled an Act of Parliament rather than a Bill.

So, using the Code above as an example the Criminal Law (Domestic Violence) Amendment Act 2016 was first a Bill before assent was given.  Following assent (at which time it becomes an “Act” and the law) the Code was then amended to include the new section 315A.  The date of the Code does not change; it remains at its original enactment date in 1899.

Hopefully this provides some insight into the title of our legislation and the myth that the law never changes.

For more information on this, the Queensland Government have released a handbook “The Queensland Legislation handbook” which provides some insight into this complex area of how Legislation is made in Queensland, located here.

Keep left unless overtaking at all times. Apparently not!

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I grew up in Victoria and from a very young age I was taught as a pedestrian to keep left when going up and down stairs/escalators and generally when walking on the footpath (unless overtaking).   For many years as a child I just assumed this was a law, in any event it was just how things were done where I grew up in Victoria.   It seemed logical, pedestrian traffic flowed, it just worked!

Naturally when I got my driver’s license in the 1990’s this was one of the main things that stuck with me.  Keep left unless overtaking.  Simple, I could easily transfer my pedestrian life rules to my driving career.   It is now so highly ingrained into me, that until now when I have actively thought about it, I have realised how wrong it feels to just drive along in the right lane and how I always keep to the left.  I have also realised that still to this day I naturally keep to the left in stairs, escalators, supermarket aisles and footpath’s and that a lot of people around me don’t.

I have lived as far north as Palm Cove and as far south as Gordonvale.  One thing I have noticed when driving in and out of town is the failure of people to keep left unless overtaking.  However, the highway north of Cairns involves a lot of roundabouts and turn off’s which understandably can pose difficulty for keeping left.  South side in my experience flows a lot smoother and there is more room to move.  However, as much as south side flows, this is highly dependent upon your time of travel, if you are travelling in peak hour that flow can quickly become a mess. It’s at this point, when the traffic is a mess where I start talking to myself about the lack of motor skills my fellow drivers have.  While I know it is not always possible to keep left, despite your best intentions,  I nevertheless take this time to have an internal dialogue with myself trying to work out why someone is travelling 60km an hour in the right hand lane of an 80km an hour roadway.  My mind boggles,  Are they doing this on purpose?, why would they do that? and how did they even get their licence in the first place?

I wanted to write this article about the road rules and how the law states that you need to keep left unless overtaking in order to get the word out and help the north and south bound traffic flow better (I know, #biggoals).  My vision was this article would go viral, all motorist would start keeping to the left unless overtaking, traffic as a result would just flow and all would be well in the world.  However, as a result of reviewing the Queensland Legislation, I am now deeply embarrassed about my internal judgy conversations with myself as it appears that my driving style (which I thought was a road rule for the last 18 years) of “keep left unless overtaking” is only applicable in certain circumstances.

In brief, the Transport Operations (Road Use Management—Road Rules) Regulation 2009  (Qld) states that when you drive on a multi-lane road where the speed limit is more than 80km/h (90km+), you must not travel in the far right lane (fines apply) unless you are:

  • overtaking
  • turning right
  • making a U-turn
  • avoiding an obstacle
  • entitled to drive in that lane because of an official traffic sign
  • driving in congested traffic.

In any event, if there is a sign saying “keep left unless overtaking” you must comply with the sign.

This means that, for years I have been incorrectly judging drivers in the 80km and below range for their driving skills as they were within their legal rights to be in that right lane or that far right lane despite the fact they were not overtaking (sorry!).  However, I take comfort in the fact that the few people I have told about this article were also of the same opinion as me, that the road rules are to keep left unless overtaking at all times.

Lesson to be learned.  Road rules should be reviewed periodically to keep up to date.  The current QLD road rules can be located here.

On a side note, I would be interested to hear if anyone could shed any light on their understanding of footpath and supermarket isle etiquette in FNQ? lefty/righty? Or centre?

 

What if Taylor Swift and Kanye West lived in Queensland. Could they legally record their conversation?

Telephone conversations and recording devices

These days I often hear and see on social media discussions regarding the recording of conversations.  More recently the alleged telephone conversation between Kanye West and Taylor Swift went viral. The first thing I thought of when I heard about this was, really? that’s the news? this was quickly followed by, “you can’t do that in Queensland.”

The federal legislation provides that it is illegal to record a telephone call with a device physically attached to the phone (mobile or landline) except where authorised  in specific circumstances (generally these are related to warrants etc).  (Telecommunications (interception) Act 1979 (Cth)).

Queensland law is not as strict as some of the other states and territories when it comes to the recording of other conversations.  In brief, Queensland law states;

  • You can legally record a telephone conversation with an external device provided you are a person who is a party to the conversation;
  • You can legally record a face to face conversation if you are a party to the conversation;
  • It is illegal to record a conversation (whether by telephone or face to face) if you are not a party to that conversation.  (Invasion of Privacy Act 1971 (Qld))

However, if you are recording conversations, with a view to use them as evidence, then you should obtain legal advice as the law differs on the admissibility of recordings in the different types of legal actions.  If you do lawfully record a conversation then you should also be aware that the publication or communication of that private conversation is prohibited in all jurisdictions.

So, if this alleged incident involving Kanye and Taylor occurred in Queensland;

  • The device recording the alleged conversation could not be attached to a phone being used by Kanye or Taylor;
  • The device recording the alleged conversation must have been recorded by either Kanye or Taylor not a third person (this si because only Kanye and Taylor are a “party” to the conversation) ; and
  • Both Kanye and Taylor would be prohibited from publication or communication of the recording (i.e they cannot release the recording  to the media (or anyone else)).

However, before you run off and start recording conversations you are a part of, you should consider the purpose of a recording and if you legally can record the conversation.  If it is for evidence, then you should seek legal advice about your circumstances for seeking the recording, the manner of the recording, the admissibility of the recording and the impact (good or bad) the recording could have on your case, as despite contrary belief, not all recordings are looked upon favourably by a Court.

For further general information relating to current laws about recording telephone conversations, see the Australian Information Commission https://www.oaic.gov.au/about-us/ and the Queensland Information Commissioner  https://www.oic.qld.gov.au/

Please also remember that these articles are providing brief general information and should not be construed as legal advice.  Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the current law specific to your circumstances.