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Opinion
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‘My husband committed suicide due to a work-related injury; his employer should pay out the death benefit.’ Which case won?
30th Jun 2022‘A worker’s death by suicide does not necessarily prevent recovery of death benefits under the Workers Compensation Act,’ writes Di Branch. ‘Ultimately it depends on the facts of each case.’ In this particular case, the employer’s insurer denied liability and the widow lodged a dispute with the NSW Personal Injury Commission. So, which case won?
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Welcome to Immigrant, Inc.
23rd Jun 2022Immigration lawyer, activist, author and speaker Richard T Herman has been working to change the conversation on immigration, arguing that immigrants and foreign nationals, with their ingenuity and drive, are creating and maintaining jobs in ‘an era that will be defined by innovation, smart technology, and multicultural lifestyles.’
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Settling sexual harassment claims: Confidential or not?
16th Jun 2022‘Some Non-Disclosure Agreements go well beyond protecting the sanctity of the conciliation process or the confidentiality of the amount paid, and operate as a ‘gag’ order on the complainant about almost everything relating to the circumstances of their complaint. NDAs drafted in this manner involve a huge degree of overreach, which serves the interests of the perpetrator and/or their employer and their reputations, rather than the interests of the complainant.’ So writes Rachel Doyle SC – proposing an alternative approach that favours transparency and the broader public interest, particularly in cases where the perpetrator is a high profile individual.
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Can you put conditions in a will? Laws around conditional gifts and bequests in NSW
8th Jun 2022How capricious can a testator be? What if the conditions in their will are uncertain, difficult to achieve or in conflict with public policy? And when can a beneficiary take the money and run? Joshua Crowther answers some curly questions around conditional gifts and bequests, with reference to precedent decisions by judges on cases concerning religious freedom and racial discrimination.
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Representation matters: Why you should care about Reconciliation Week
2nd Jun 2022First Nations people are overrepresented in all the areas of the law that no one wants to be, and underrepresented in the areas where they should be thriving. Melia Benn reminds us to have the courage to put words into action, and stand up to the casual and blatant racism that First Nations people face both in their daily lives and when navigating the legal system.
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Uninsurable nation: Australia’s most climate-vulnerable places
26th May 2022‘While climate change affects all Australians, the risks are not shared equally,’ writes The Climate Council, who have just released a report, Uninsurable Nation: Australia’s Most Climate Vulnerable Places, along with a detailed Climate Risk Map of Australia. This article summarises their key findings.
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Four unique financial strategies for TPD claimants
19th May 2022‘Successful TPD claimants are in a unique position: they have full access to their super and can implement certain retirement strategies that most Australians can’t until they’re 60 or 65,’ explains Andy Reynolds – a member of the ALA Superannuation and Insurance Special Interest Group – outlining four strategies to save, preserve and maximise funds while maintaining flexibility.
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Shifts in the balance of power
12th May 2022'Housing should be available and accessible for everyone'. After 15 years as a Tenant Advocate at the Northern Rivers Tenants Advice and Advocacy Service, Amanda El Gazzar calls for a cultural shift and legislative change.
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Migration law and the best interests of the child
5th May 2022Abdullah and Fatima fled Afghanistan with their children after a Taliban attack killed their daughter and destroyed their home. While Abdullah has permanent refugee status in Australia, Fatima and their four children have been waiting for their family visa to be processed for more than four years. The family has now launched legal action against the Morrison government, claiming an unreasonable delay. John Bui examines the case through the lens of family law.
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‘No grounds’ evictions are unfair
21st Apr 2022‘The real power of the no grounds notice is its usefulness in keeping tenants from raising issues at all’, writes Leo Patterson Ross – CEO of the Tenants’ Union of NSW – diving into the problem of 'no grounds' evictions in fixed term tenancies to examine why and how reform attempts have, so far, fallen short.
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Can your boss use electronic surveillance to monitor you when you’re working from home?
14th Apr 2022The Workplace Surveillance Act 2005 (NSW) rules out undue intrusions and covert surveillance, but surveillance technologies are evolving faster than privacy laws – and booming. As many of us continue to work from home in the wake of the pandemic, Anneka Frayne ponders the issues.
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Failure to meet duty of care costs employer $120,000 for employee’s rolled ankle
7th Apr 2022If an employer has been alerted to a possible safety concern in the workplace, they must take it seriously, writes Emily Wittig, in light of Michel v Broadlex Services Pty Ltd [2020] ACTMC 2. According to the magistrate, the employer ‘knew or ought to have known that the circumstances giving rise to the risk of injury to the plaintiff were recurring’.
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TPD: Strengthening a claim and handling a mental health crisis
31st Mar 2022Nari Ali of Revolution Law discusses ‘common yet arguable declines’ from insurers and efficient ways to address them, and recommends pertinent mental health resources for lawyers supporting clients in Queensland and around Australia.
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The Morrison Government is proposing astounding discrimination against vulnerable aged care residents
24th Mar 2022'When our Parliament is presented with a Bill which removes fundamental rights and liberties from a discrete cohort of Australians only, a cacophony of objections may be expected' writes Rodney Lewis. 'In this case, however, the victims have no voice.'
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South Australia – No longer the rogue class action state
17th Mar 2022‘An intended purpose of representative proceedings is to give access to justice to people who cannot afford it,’ writes JE Rowe. But until recently, ‘access to justice was denied to vulnerable people in South Australia unless they could get funding or other access to funds to provide security for costs.’
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Tough new laws against image-based abuse
10th Mar 2022Online abuse, including so-called ‘revenge porn’, is mostly conducted against women – and it’s on the rise. Anneka Frayne discusses the new penalties for perpetrators, as well as bullies, trolls and social media giants who publish defamatory material.
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Pattern of mental health discrimination in insurance industry
24th Feb 2022Concerns raised by the Human Rights Commission have been consolidated in a report by the Public Interest Advocacy Centre investigating how life insurers treat people with past or current mental health conditions. Nick Burton discusses the issues and the implications.
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Concerns over police reliance on phone data extraction technology
17th Feb 2022Defences could be mounted based on possible security faults in the technology used by police to extract data from mobile phones, challenging convictions that rely on this data as evidence, writes John Gooley – a lawyer with many years' experience in federal law enforcement and intelligence.
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The law around disclosure
10th Feb 2022In celebration of our Queensland conference, speaker Ashleigh Harrison shares a slice of Saturday’s presentation, discussing the complexities around disclosure under the Personal Injuries Proceedings Act 2002 (Qld), impacting on cases like Haug v Jupiters Limited trading as Conrad Treasury Brisbane, in which a guitarist from Powerfinger, in his quest to prove ‘excessive force’ was used to eject him from a Brisbane casino, lost the battle to obtain security information.
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Traumatic birth experience leads to avoidable injury
3rd Feb 2022It is important for women to know that birth-related injuries are common, they are sometimes preventable, and legal advice should be sought before the time to bring a claim passes, writes Jyoti Haikerwal, a lawyer at Brave Legal and volunteer with the Australasian Birth Trauma Association.
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Who has to pay for repairs? The landlord or the tenant?
27th Jan 2022Storm damage, gas leaks, mould, wall cracks, water stains – repairs are required from time to time at all properties, but when the property is a rental, working out who is responsible can be ambiguous. David Crossan, David Thompson and Neville Hesford clarify.
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Is the Hague Convention on child abduction harming women?
20th Jan 2022Women trying to leave abusive relationships and return home with their children are being blocked by the threat of Hague proceedings. When it was signed in 1980, this international treaty was intended to protect mothers and children, but now it's being used as 'legal weapon' against them, writes Anneka Frayne, calling for change.
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Landmark judgment over right to keep pets in apartments
13th Jan 2022No residential building in NSW will be able to enforce a blanket ban on pets in apartments, says Merrill Phillips, thanks to the precedent set by Angus, a deaf and partially blind miniature schnauzer, his owner, Jo Cooper, and the NSW Court of Appeal.
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If a person with a secret second family dies, who inherits their estate?
2nd Dec 2021When a marriage celebrant leaves his first wife in New Zealand and marries a second in Australia, and then a third, he receives a 6-month suspended sentence for bigamy — illegal in Australia, but more common than most of us realise. Joshua Crowther discusses this legal quandary.
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Does a smack on the bottom constitute common assault?
23rd Nov 2021When a female bar manager takes a male customer to court for common assault, the customer pleads guilty but is eventually granted a s10 dismissal and no conviction is recorded against him. Kelly Brown outlines the details of this incident and explains what constitutes common assault.
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Australians charged with modern day slavery and jailed
12th Nov 2021After several incidents of Australians being found guilty of modern slavery for keeping women as domestic slaves and in forced labour, Emily Wittig from Stacks Collins Thompson discusses the legislation prohibiting slavery, the definition of modern day slavery and the corresponding issue of human trafficking in the sex industry.
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Handling asbestos-related claims in England
11th Nov 2021Jurisdictional issues arise when workers were originally exposed to asbestos in England however developed their asbestos-related illness later in Australia due to lengthy latency periods. Daniel and Kevin provide an overview of the legal factors regarding asbestos-related claims in England. Relevant considerations for advising clients include level of damages, expediency, preferential legal costs, procedural convenience and potential to fund life-saving treatment.
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Can a dying declaration be admitted into evidence?
28th Oct 2021Peter Schmidt looks at several authority cases and discusses the circumstances in which dying declarations may be admitted into evidence. He provides a summary of the criteria for admission including issues with proving that the declarant was a competent witness. Peter concludes that the following principles would be more appropriate: immediacy, spontaneity, holism and lack of opportunity for contrivance.
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Work safety poster leads to $200,000 damages award
21st Oct 2021Emily Wittig from Stacks Collins Thompson examines a recent case where a female employee was awarded $200,000 in damages by the NSW Civil and Administrative Tribunal. The Court agreed that a work safety poster featuring the words ‘Feel Great – Lubricate!’ over a photo of the employee resulted in the employee feeling ‘exposed, humiliated and ashamed’ and led to her resignation.
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Domestic coercive control could soon be criminal in Australia
14th Oct 2021Domestic abuse in the form of coercive control could soon be a criminal act under changes to domestic violence laws being considered by state and territory governments in NSW, Queensland, Victoria, SA and the NT. Anneka Frayne discusses what coercive control is and how the legislation would work, including the difficulties of criminalising it.
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Navigating exclusive jurisdiction clauses in overseas holiday contracts
7th Oct 2021Exclusive jurisdiction clauses are commonplace in holiday contracts and stipulate which jurisdiction’s courts a consumer should sue in if a dispute arises. Victoria Roy discusses the Federal Court case of Karpik v Carnival, involving the Ruby Princess COVID-19 disaster, where the exclusive jurisdiction clause in question was found not to have been validly incorporated. However, Karpik also demonstrates it is unlikely that s24 of the ACL would render such a clause unfair and void.
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Renewed calls to raise minimum age of children in prison
30th Sep 2021With children in prison as young as 10 years old in Australia, there is a growing push for federal, state and territory politicians to finally raise the age of criminal responsibility to 14. Anneka Frayne provides an overview of the statistics around children in prison, findings on cognitive capability and the doli incapax principle and the ongoing negative impacts of detention on young children.
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Human rights violations now enshrined in legislation
23rd Sep 2021The recently passed Surveillance Legislation Amendment (Identify and Disrupt) Bill allows security agencies to access and manipulate citizens’ data – adding to the already wide suite of powers security agencies have to surveil and track. Greg Barns SC explains how this law operates (including the introduction of a ‘data disruption warrant’) and argues that it shows little to no regard for the right to privacy and the rule of law.
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Former Uber Eats courier paid $400,000 in out-of-court settlement
16th Sep 2021Is a gig economy worker an employee or independent contractor? The line that separates the two employment classifications is becoming increasingly blurred. Emily Wittig from Stacks Collins Thompson discusses the case of Amita Gupta, an Uber Eats courier, who brought an unfair dismissal case before the Fair Work Commission which was eventually settled by Uber Eats. Had the case proceeded and succeeded, it could have set a legal precedent that couriers are employees rather than contractors.
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Preventative measures to stop burnout in the legal profession
7th Sep 2021More than any other profession, the traditional legal culture sees lawyers working in high-pressure environments with excessive hours, resulting in burnout and mental health issues including depression and anxiety. Dr Frank Chow provides tips on how to prevent burnout in the legal profession, including aligning core values with your workplace and identifying life priorities.
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Proposed child abuse compensation laws in NSW give survivors some hope of justice
2nd Sep 2021A proposed amendment to the NSW Civil Liability Act will enable courts to set aside unfair settlements involving survivors of institutional child abuse. Con Ktenas discusses fairer compensation for victims, eliminating legal barriers to compensation, and the introduction of advance child abuse compensation payouts.
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As the Taliban seize control, here’s what Australia can do to help our people
23rd Aug 2021Now that the Taliban takeover of Afghanistan is complete, vulnerable Afghans, especially minority groups such as the Hazaras and women and children remain in a volatile and desperate situation. Arif Hussein and Zaki Haidari urge the Government to protect those who are most at risk under Taliban rule by increasing the humanitarian intake from Afghanistan, providing permanent protection to all Afghan refugees on temporary protection visas in Australia, and lifting the effective ban on family reunion and the ban on resettlement of refugees in Indonesia.
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NSW set to introduce mandatory data breach notification scheme to protect privacy
19th Aug 2021Michael McHugh discusses the NSW Privacy and Personal Information Protection Amendment Bill and how the amendments aim to protect the privacy of citizens by introducing mandatory data breach notifications. But will these proposed laws produce the intended result?
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Former employee of cosmetic clinic sued for defamation on Instagram story
12th Aug 2021Anneka Frayne discusses defamation on social media in the Brisbane case of BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111. She provides a summary of the defamatory claims and the court’s finding, and highlights that the courts are willing to take action, even if there are relatively few recipients of the defamatory posts.
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US White Island lawsuit: Royal Caribbean Cruises Ltd v Browitt
5th Aug 2021In the Federal Court decision of Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653, two Melbourne victims of the White Island volcano disaster defeated legal action brought by Royal Caribbean Cruises Ltd to stop the victims from proceeding with their claims in Florida. Victoria Roy provides a summary of the legal issues in dispute and analysis of this cruise ship accident case.
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Behind the closed doors of immigration detention
29th Jul 2021Australia’s harsh laws permitting the indefinite detention of people seeking asylum and refugees have recently been expanded to include persons who are owed protection obligations but have no visa pathways. Rachel Saravanamuthu discusses the increasing detainee numbers during COVID-19, excessive use of force by detention staff, the concerning use of detention records to support visa cancellations and refusals, and the situation for Medevac transferees.
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Government’s plan to deregister charities for trifling offences is an overreach
22nd Jul 2021New proposed laws governing the regulation of charities and not-for-profit (NFP) organisations may result in the deregistering of charities and NFPs, if a member or volunteer commits a minor offence during a demonstration. Maurie Stack argues that this is a clear attempt to silence activists, pointing to the broad scope of the proposed changes and existing laws that cover fraudulent activities committed by charities and NFPs.
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A guardianship for special circumstances
14th Jul 2021In proceedings where a party is found to be a ‘person under disability’, the court may appoint a litigation guardian to assist in the management of the party’s legal affairs. Priam Nandan provides an overview of litigation guardians, including the power to appoint, reasons for appointment, who can appoint a litigation guardian and considerations for a ‘person under disability’.
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Should voluntary assisted dying be legalised in NSW?
8th Jul 2021In NSW, the Voluntary Assisted Dying Bill failed to pass the upper house in 2017. Alongside reignited discussion around legislation on this controversial topic, Joshua Crowther provides an overview of the current position of voluntary assisted dying in NSW, documenting end of life care in a will, and advanced care directives.
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The level of detail required in pleadings against the Crown: Niass v State of NSW
1st Jul 2021Pleadings are required to identify the issues of the case, to articulate the nature and content of the claims, and to provide the defendant with a fair opportunity to meet the case. In her two-part series, Amanda Do discusses two Supreme Court of NSW judgments that clarify the level of detail required in pleadings, in particular with regard to claims of institutional abuse. The second judgment discussed is the case of Niass v State of NSW.
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The level of detail required in pleadings: PWJI v The State of NSW
24th Jun 2021Pleadings must identify the issues of the case, articulate the nature and content of the claims, and provide the defendant with a fair opportunity to meet the case. In her two-part series, Amanda Do discusses two Supreme Court of NSW judgments that clarify the level of detail required in pleadings, in particular with regard to claims of institutional abuse. The first judgment discussed is the case of PWJ1 v The State of NSW.
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Should Australians have the ‘right to be forgotten’ online?
17th Jun 2021Following the CJEU decision that EU citizens have the right to request that data in regard to them may be deleted from search engines within the EU, the German constitutional court held that a plaintiff who had served time for murder is entitled to the right to be forgotten. Michael McHugh discusses the legal complexities of this right and its potential impact on privacy and free speech.
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Assessing disability claims fairly
3rd Jun 2021Liam Hanlon and Dr Benjamin Koh discuss two major outcomes from the Banking Royal Commission for insurance claims assessors, including the requirement of an Australian Financial Services Licence and the statutory obligation of utmost good faith. These outcomes set a higher legal standard for claims assessors to operate fairly and provide valuable consumer protections to those claiming disability benefits.
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Internet trolls face huge penalties under proposed new laws
20th May 2021Hefty fines and takedown laws proposed in the Online Safety Bill aim to address online abuse. Anneka Frayne takes a look into the proposed power to block websites sharing terrorist or extremist activities, and definition of ‘cyber abuse’ to include intention to cause serious harm.
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Over 1,000 Australians with cognitive disability are detained indefinitely each year
13th May 2021The indefinite detention of people with cognitive impairments and/or mental illness in our criminal justice system has been criticised for being arbitrary in nature and subjecting detainees to abuse and serious human rights violations.
Eileen Baldry AO highlights the reforms needed to dismantle this shameful practice and provide more disability-focused support to those at risk.
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Horseplay in the workplace leads to damages
6th May 2021Emily Wittig from Stacks Collins Thompson discusses a case where a ‘bit of fun’ at work goes too far and leads to serious injury. She highlights the duty of care owed by employers to provide competent supervisors and a safe workplace, and the significant dangers of injury and death when this duty is breached.
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Compensation, risk and the NDIS
29th Apr 2021Pursuing compensation can be expensive and stressful. Might injured Australians decide it’s better to just receive full Centrelink and NDIS? Jane Campbell explains the issues at play, including repayments and reductions, and highlights the enduring importance of securing proper compensation.
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BYO bandages: The case for regional and rural health reform
22nd Apr 2021Catherine Henry discusses the impact that inequitable health resourcing and services has on those living in rural, regional and remote areas. In particular, she addresses key issues including shortages of specialist practitioners, lack of regional cancer centres, and the unacceptably wide gap in the health outcomes of First Nations communities.
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Spy apps: Privacy protection or illegal surveillance?
15th Apr 2021In the past few years, a growing number of free spy apps have appeared on the market. What is most alarming about this phenomenon is the blurred line of legality in these apps which have a wide range of uses, from offering anti-spyware that protects a user’s private information to enabling illegal surveillance. Nick Burton provides an overview of the most commonly used spy apps and discusses the legalities of using these apps.
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Fighting racism in the healthcare system
8th Apr 2021Despite the common belief that the Australian health system treats everyone equally, George Newhouse and Karina Hawtrey argue that the system operates in a way that disproportionately excludes and harms First Nations people. They discuss the ways in which legal advocates can recognise and assist in fighting racism, including by implementing firm-wide anti-racism policies and taking on cases of medical negligence faced by First Nations clients.
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Facilitated conclave conferences
1st Apr 2021Where there is a divergence in expert evidence, the experts involved are expected to participate in a conclave conference. Kirsten Van Der Wal and Kathryn McMillan QC discuss the role of an independent facilitator in this process, how to appoint a facilitator as well as practical considerations for legal practitioners.
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Mental Health (Forensic Provisions) Act provisions replaced by new legislation in NSW
25th Mar 2021The introduction of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides courts with better guidance when diverting a criminal defendant into mental healthcare and treatment. Mark Warren discusses the new Act’s provisions in regard to mental health definitions, the ‘fit for trial’ test, and the replacement of the ‘not guilty’ verdict with ‘not criminally responsible’.
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How the law could permit the standing down of Christian Porter
18th Mar 2021The standing down of a public service employee during an investigation into their conduct is provided for under Australian industrial relations law. Giri Sivaraman examines previous decisions featuring suspensions of highly skilled professionals in which the courts considered whether the suspension improved the integrity of the investigation and the potential risks to the employee’s health and career.
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Protecting everyone’s rights benefits us all
11th Mar 2021Australia’s human rights performance was closely scrutinised in the UN’s recent Universal Periodic Review. Hugh de Kretser discusses the review’s recommendations to improve our rights protection, and outlines its concerns on issues including Australia’s low age of criminal responsibility, economic hardship during COVID-19, the Government’s response to climate change, and the treatment of Aboriginal and Torres Strait Islander peoples and of refugees and people seeking asylum.
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Police found to have conducted unlawful stop and search
4th Mar 2021Mark Warren discusses a case involving an unlawful stop and search conducted by NSW police and highlights the important powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), in particular exploring what constitutes ‘reasonable grounds’ to stop and search under the Act.
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Posting defamatory conspiracy theories online can cost you
25th Feb 2021The Federal Court awarded damages of $875,000 in the case of Webster v Brewer (No. 3) [2020] FCA 1343, which involved defamation and online conspiracy theories. Geoff Baldwin discusses the Court’s reasoning and the likelihood that social media publishers will be held more accountable for material that is published on its platforms.
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Avoid autopilot when using expert evidence
18th Feb 2021Having a solid understanding of expert evidence law and the common law rules is a powerful weapon for a litigator. Anna Morgan provides an overview of the rules of expert evidence, discusses recent cases where expert opinion evidence was rejected, and offers tips on using expert evidence effectively.
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Government’s response to dying man’s plea ‘patronising, insulting’
11th Feb 2021There are thousands of people living in Tasmania who are opting to break an absurd and cruel law which criminalises the use of cannabis. In a passionate plea to Premier Peter Gutwein, Mr Fielding, a dying cancer patient, has highlighted the inhumane lack of availability of medicinal cannabis products in the state.
Greg Barns SC calls for the Tasmanian government to show compassion and recognise the increasing evidence supporting the use of medicinal cannabis.
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Juror misconduct leads to quashed conviction and retrial
4th Feb 2021When considering their verdict, jurors may think that it is helpful to conduct an internet search on the case, on the accused, or even on the finer points of jury service. Peter Schmidt discusses the ways in which improper juror behaviour can cause unnecessary cost and burden to the court and the victim.
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Dispute over fate of deceased’s body determined by consulting Facebook
28th Jan 2021Joshua Crowther discusses the importance of having an up-to-date will. He refers to the case of Dragarski v Dunn [2019] NSWSC 300 where, in the absence of a will, the judge looked to the deceased person’s social media accounts to decide on precedence among her relatives and the fate of her body.
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Enormous power of police must be kept in check
20th Jan 2021Police wield enormous power. It is absolutely critical that this power is checked and where it is abused, that the police officers are held to account. Jeremy King discusses the implications of the inquiry into the external oversight of police corruption and misconduct in Victoria, which acknowledged the significant failings of Victoria’s police complaints system and recommended the strengthening of the Independent Broad-based Anti-corruption Commission (IBAC).
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Continuing grim reality of work-related fatalities
14th Jan 2021A total of 3,751 workers were killed in work-related incidents between 2003 and 2018. The number of non-fatal work-related injuries in Australia is also extreme.
Justin Stack observes that changes in legislation have made it more difficult for injured workers to obtain adequate compensation and he discusses avenues through which NSW workers can challenge an insurer’s decision or dispute the amount of compensation they have been awarded.
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Firing an employee who criticises your client is not unfair dismissal
3rd Dec 2020The decision of Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409 involved a dismissal of the lawyer who led a government-commissioned review into sexual and physical abuse, and refused to stop publicly criticising the firm’s government client.
Geoff Baldwin discusses how the Federal Court did not consider the lawyer’s dismissal to be unfair as the lawyer had failed to follow management directions to not criticise a client of the firm.
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The high cost of classifying bus driver employees as contractors
26th Nov 2020Emily Wittig from Stacks Collins Thompson discusses the decision of Fair Work Ombudsman v Eagle Tours Pty Limited [2019] FCCA 2099, where the Federal Circuit Court fined a company for deliberately wrongly classifying employees as independent contractors and precluding them from employee benefits. This decision reflects that in a court matter, the judge will look at the totality of the workplace relationship to determine the status of a person’s employment.
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The legacy of the asylum seeker phone ban
19th Nov 2020The proposed Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, which would have banned refugees, asylum seekers and non-citizens who are held in immigration detention from having mobile phones, failed to pass the Senate by the narrowest of margins.
Dr Sangeetha Pillai analyses the scope and impact of the proposed law and argues that it will have broad and long-lasting ramifications on conversations around detention search powers, access to legal representation, and government accountability.
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Rethinking access to racial justice
12th Nov 2020Despite initial expectations, race discrimination laws have not made as strong a contribution as they might have to First Nations peoples, partly due to problems relating to access to justice and, in particular, the under-utilisation of anti-discrimination legal remedies.
Dr Fiona Allison and Jodie Luck discuss potential solutions which include reform of the mainstream legal system informed by First Nations peoples’ needs and perspectives, and support of community-led responses to racism, including those likely to increase awareness of legal rights.
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Australia’s Religious Discrimination Bill: Hard cases make bad law
5th Nov 2020The Religious Discrimination Bill has received a mixed reaction from the Australian public, and it is evident that not everyone will be satisfied with the final version of the legislation.
Emily Wittig from Stacks Collins Thompson and Geoff Baldwin from Stacks Champion discuss the Bill’s repercussions for workplaces, and the difficulty of defining ‘religion’ and identifying the line between vilification and merely offending someone.
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ADL definitions in TPD insurance: Is the default at fault? (part two)
28th Oct 2020In TPD policies, the ADL definition reports a much higher rate of decline compared to claims made under the any occupation definition.
In the second part of this two-part series, Matthew Lo argues that the fact that a definition has a higher rate of decline is not proof of its ‘unfairness’, and that the ADL definition cannot be ‘unfair’ as it enlivens rather than restricts a claimant’s ability to claim.
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ADL definitions in TPD insurance: Is the default at fault? (part one)
22nd Oct 2020The any occupation definition of total and permanent disablement (TPD) insurance is often referred to as the ‘standard form’ definition due to its ubiquity. However, a quick canvas of legislative instruments, such as the Life Insurance Act 1995 (Cth) or Insurance Contracts Act 1984 (Cth), reveals no required specifications for TPD insurance.
In the first part of this two-part series, Matthew Lo discusses the various definitions and inconsistencies associated with TPD insurance.
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The ‘constellation of circumstances’ that work against women applying for bail in Victoria
14th Oct 2020Advocates in the legal and community sectors have expressed concerns that Victoria’s tough bail system is having a particularly detrimental impact on women.
As part of a 12-month study investigating the drivers of women’s remand growth in Victoria, Dr Emma Russell from La Trobe University outlines the study’s key findings and recommendations. She discusses the ‘constellation of circumstances’ that contribute to women’s criminalisation, in particular, experiences of homelessness, poverty, family violence, and untreated mental and physical health problems.
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Employers held responsible for domestic violence when staff WFH
8th Oct 2020In Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, it was found that employers can be held responsible for domestic violence when employees work from home.
Emily Wittig from Stacks Collins Thompson discusses how this case demonstrates that employers must ensure that there are no safety risks involved with WFH, including the threat of domestic violence. This requires the implementation of informed and proactive policies that will protect workers, particularly relevant in current times with more employees WFH due to COVID-19.
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Elder abuse, conflict and change
1st Oct 2020It’s no secret that Australia has an ageing population and that many intelligent minds around the country are attempting to find ways to effectively combat the growing prevalence of elder abuse. One particular area of focus has been the laws regarding alternative decision-makers, particularly powers of attorney.
On the International Day of Older Persons, Michele Davis highlights issues relating to conflicts when it comes to attorneys, and provides an overview of the new legislative changes soon to commence in Queensland.
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Does the pandemic have us working longer hours?
24th Sep 2020The new normal of remote working during the COVID-19 pandemic has brought with it the luxury of plasticity in how and when work is done. However, there are also downsides to working from home.
Travis Schultz explores the difficulties that have accompanied the loss of demarcation between our work and personal lives, with employees working longer hours than ever before.
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Should employers go to gaol for underpayment of wages?
17th Sep 2020Many instances of systemic underpayment of wages originate from the reckless indifference of employers towards correct pay practices.
While supporters of tougher laws believe that criminal penalties would act as a better deterrent to employers than the issuing of fines, Geoff Baldwin reminds us that there is insufficient evidence of the correlation between harsh penalties and reduced offending. He suggests that putting additional resources into compliance auditing may be more successful in reducing wage underpayment.
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Happiness is an inside job
10th Sep 2020Clarissa Rayward reflects on the significance of R U OK?Day and explores the foundational ingredients of any happy and successful legal career.
She interviews ALA member Dean Spanner in her podcast Happy Lawyer Happy Life on prioritising the things that matter: health and relationships. They discuss mindset, perspective and spirituality, and how with hard work and clarity around what brings joy you can live a successful life in and outside of the law.
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ASIC’s loss to Westpac is terrible for everyone
3rd Sep 2020Despite its Federal Court loss in Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111, ASIC was right to appeal the dismissal of its responsible lending case, says Andy Schmulow. He discusses how this case has exposed the deficiencies of the purported remedy for reckless lending and advocates for urgent legislative reform.
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Developments in institutional liability for sexual assault: SMA v John XXIII College (No.2) [2020] ACTSC 211
27th Aug 2020Angela Sdrinis discusses the recent case of SMA v John XXIII College (No.2) [2020] ACTSC 211, which explored the liability of a university residential college for a sexual assault. The case shows that in some circumstances the common law is evolving to recognise that institutions should be held liable for the intentional torts of another person (even if they are not an employee) against vulnerable adults.
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COVID-19 shows the cracks in our aged care system
20th Aug 2020Catherine Henry questions why we are seeing so many COVID-19 deaths in aged care, and suggests that it's not just that older Australians are more vulnerable to the infectious disease. She believes that COVID-19 is, in many ways, just the next thing to expose the systemic problems in an aged care system that demands a major overhaul.
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Call for NSW workers’ compensation scheme to be scrapped
13th Aug 2020In light of concerns raised in the recent media investigation of the NSW workers' compensation scheme, Jeremy Roche compares NSW’s scheme with that of Queensland. He claims that NSW should copy the Queensland workers’ compensation scheme as it is more profitable, fair, efficient and sustainable and injured claimants, along with insurers and employers, are far better off.
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Sentencing, over-policing, STMP and crime reduction in NSW
6th Aug 2020Mark Warren analyses statistics to determine the effectiveness of NSW sentencing reforms on prison population, police and crime reduction, and STMP technology.
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Character test in s501 of the Migration Act 1958 (Cth) DOES apply to Temporary Protection Visas
30th Jul 2020George Newhouse provides an update on the overruling of BAL19, a decision that constrained the Minister for Home Affairs’ power to refuse a visa for refugees and asylum seekers under the s501 character test of the Migration Act 1958 (Cth).
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Do defamation laws need to be updated in the digital age? (part 2)
23rd Jul 2020In the second part of this two-part series, Richard Bradshaw and Caitlin Walkington cover the common distinct features of online publications and what changes should be made to defamation laws.
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Do defamation laws need to be updated in the digital age? (part 1)
16th Jul 2020Social media and the use of the internet have evolved in a manner that neither the legislators nor the courts could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways.
In the first part of this two-part series, Richard Bradshaw and Caitlin Walkington cover who is a 'publisher' in the digital age and the differences between primary and secondary publishers.
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New workplace manslaughter laws in Victoria
2nd Jul 2020Sam Vasaiwalla explains the new Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic), effective from 1 July 2020. This new law makes workplace manslaughter a criminal offence in Victoria, with penalties of up to $16.5 million and 20 years’ jail.
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How to avoid becoming #youtoo: Minimising sexual harassment at work
25th Jun 2020Employers are liable for the conduct of their employees if they sexually harass other workplace participants. However, liability can be absolved if an employer proves that they took all reasonable steps to prevent the inappropriate conduct from occurring.
Larissa Andelman explores what ‘taking all reasonable steps’ really entails under the law, and what measures law firms can put in place to provide a workplace free from sexual harassment.
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Did the employer’s negligence cause the sales assistant’s psychiatric injury? Which case won?
18th Jun 2020Phil Griffin explores the facts and outcomes of a recent psychiatric injury case decided in Queensland. This case highlights that the risks inherent in an employee’s role are an important consideration in determining the reasonable precautions that an employer must take to meet its duty of care to its employees.
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Don Dale ruling a strong message against use of force on children
11th Jun 2020Greg Barns discusses the High Court’s decision, on 3 June, that the use of tear gas on four youths at the NT’s Don Dale detention centre was unlawful. He explores the implications of this decision, suggesting that it illustrates the need for discussion about changing the culture of dealing with young people who intersect with the criminal justice system.
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How NSW Roads and Maritime Services (RMS) facilitates financial abuse
4th Jun 2020In this article, Anna Kerr and Andrea Verteouris explore how the NSW policy of denying the registration of a motor vehicle in joint names can be detrimental to the safety of women and children affected by domestic violence. They call on the NSW government to reinstate the option of registering motor vehicles in joint names or at least enable a second interest in a vehicle to be noted.
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Death sentence for poverty? Why the over-representation of First Nations women prisoners matters during the pandemic
27th May 2020ALA member and a leading advocate for the protection of criminalised women's human rights, Debbie Kilroy OAM, has had her own frightening encounter with the COVID-19 virus. Debbie is desperately worried about the threat to lives if there is an outbreak of the virus in an Australian women’s prison, particularly for over-represented First Nations women, many of whom have chronic health conditions. In this article, Debbie explains the key issues and provides a compelling list of immediate action priorities.
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Gender issues for lawyers during and after the pandemic
21st May 2020In this article, Emma Dawson explores the disproportionate impact on women's careers, remuneration and superannuation both during the COVID-19 shutdown, and in its economic aftermath. Although working remotely during the shutdown period has no doubt been somewhat of an ‘eye-opener’ for some of the domestic partners of female lawyers about the unpaid work so many do, it may be too early to hope for a permanent shift in the division of unpaid domestic work. Nevertheless, the building blocks have been laid. Post-COVID will offer many challenges, but also many opportuntities to do things differently.
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A spotlight on the Newmarch House tragedy: Where to next?
14th May 2020In this article, Catherine Henry argues that the rampant, nationwide failures in governance, accountability, policy and the regulatory framework of aged care have been laid bare in the tragedy that has unfolded at Newmarch House. Catherine attributes these failures to the flawed Aged Care Act 1997 (Cth), whose provisions prefer the interests of providers over those of residents and their families. She calls for a dedicated inquiry into the Newmarch House tragedy and for the enactment of a new Aged Care Act which addresses the shortcomings of the current aged care system.
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Swapping silks for trackies
7th May 2020While there may be some of you who won't agree, for many lawyers running their own practices, working from home may well be better than planning and taking a holiday. In this engaging article, it is clear that Tom Percy QC is relishing working from home during the COVID-19 shutdown and has enthusiastically embraced the new ways of engaging with courts and clients.
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Figuring out who the ‘relevant insurer’ is under the Motor Accident Injuries Act in NSW
30th Apr 2020With the introduction of the concept of a 'relevant insurer' in the Motor Accident Injuries Act 2017 (NSW), a claimant must lodge one claim form with one insurer only when claiming statutory benefits. In this article, Belinda Cassidy, Special Counsel at Stacks Goudkamp, explores the difficulties that arise in working out who the 'relevant insurer' is in multi-vehicle accidents and their effect on the flow of statutory benefits to injured persons, particularly self-represented claimants. Belinda urges SIRA to publish arrangements it has approved between insurers for the determination of which insurer will accept a claim for statutory benefits and be the relevant insurer in respect of the claim.
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Acknowledgment of Country: What should we be doing at the ALA?
23rd Apr 2020Under the ALA's inaugural Reconciliation Action Plan which was launched in October 2019, the ALA and its office holders have an obligation to demonstrate respect to Aboriginal and Torres Strait Islander peoples by observing cultural protocols. One of the most important cultural protocols is the Acknowledgment of Country. In this article, the ALA's Policy and Advocacy Manager, Dr Louis Schetzer explains why the Acknowledgment matters, and when and how we as members of the ALA should observe this important symbolic act of respect. Louis also offers some suggestions to keep in mind when you are preparing and delivering your Acknowledgment to Country to ensure it is genuine, significant and educative.
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How the new Queensland Human Rights Act can assist clients with disability
16th Apr 2020It is well recognised that people with disability are particularly vulnerable to violations of their human rights. In this article, Emma Phillips welcomes the new statutory human rights protections delivered by the Human Rights Act 2019 (Qld) (which commenced in January 2020) and identifies the rights and freedoms which have particular significance for people with disability. Emma explains how the new statutory right to health services, a new human right in Australia, has the potential to address the denial of appropriate treatment for people with disability and any failures to ensure access to health services for incarcerated people with disability.
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Why releasing some prisoners is essential to stop the spread of coronavirus (COVID-19)
9th Apr 2020To prevent prisons becoming COVID-19 hotspots, Prof Thalia Anthony argues that the only logical response is decarceration; an emergency measure that is necessary to protect both the health and wellbeing of prisoners and the wider community. Thalia highlights the particular vulnerability of Aboriginal and Torres Strait Islander prisoners, and eventually their families and communities. Indigenous people who are exposed to infection in prisons will return to communities that are ill-equipped to respond to a COVID-19 outbreak; especially communities in regional and remote areas where there is a glaring lack of health services and resources.
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Coronavirus and important insurance questions
2nd Apr 2020Kim Shaw explores some of the common questions lawyers might be asked about insurance coverage – travel, business, mortgage and disability insurance – as their clients feel the impact of the COVID-19 pandemic on their lives and livelihoods. Kim provides some helpful tips about how lawyers can respond to these.
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Significant risk of the default investment option for TPD claimants
26th Mar 2020If you are acting for a client with an approved TPD claim it would be a good idea for you to find out now how the superfund is dealing with TPD claim proceeds. According to Andrew Reynolds, currently roughly 50% of superfunds will direct proceeds into the member’s default investment option in their superannuation account. Over recent weeks, as the COVD-19 crisis has hit financial markets across the world, some claimants have lost tens of thousands of dollars before they even realise their claim has been approved. Andrew suggests that affected TPD claimants may have valid claims against their superfunds for these losses.
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What solicitors should tell their personal injury clients about surveillance
19th Mar 2020Tom Goudkamp OAM explains what legal advisors should tell their personal injury clients about insurer surveillance. If clients are truthful with doctors, medico-legal experts and their lawyers, surveillance will not harm them, and may even help their cases. Tom explains that the opportunity for insurers to ambush clients in court is now limited.
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The High Court and the ‘aliens’ power
12th Mar 2020Professor Megan Davis explains that on the key issues animating public attention – an Aboriginality test and sovereignty – a close reading of each judgment in Love; Thoms reveals that there are no majority pronouncements that change the status quo. The decision does not create a new category of person, nor does it create special rights. What it does do, however, is bolster the argument for constitutional reform.
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Queensland reforms affecting workers’ comp claims for psychological injuries
5th Mar 2020Jessica Hodge explains the changes affecting workers' compensation claims for psychological injury in Queensland which commenced late last year. She argues that while the removal of ‘major’ from the required standard for a psychological injury represents a positive step for employees, particularly those with pre-existing psychological conditions, it is unlikely to result in a significant increase in the claim acceptance rate.
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Veterans let down by claims scheme
27th Feb 2020Tim White, the President of the Law Society of SA, highlights the mental health crisis in our armed forces and the hurdles veterans face pursuing injury claims. He refers to reports of ADF personnel who have taken their lives while waiting for a final decision from the DVA or in the course of disputing a DVA decision. Tim is hopeful that the recent announcement of the appointment of a full-time Commissioner to investigate veteran suicides will be a positive step.
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How the term ‘coward punch’ won a $100,000 defamation payout
20th Feb 2020As Michael McHugh explains, language is a powerful tool – in society and in law. ‘Coward punch’ describes a characteristic of the perpetrator of such an act: that in hitting a defenceless person in an unprovoked manner, the actor is not only committing a violent act but also, distinctly, is contemptibly lacking the courage to act in a proper or fair way.
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Asbestos and other latent onset disease litigation: Tips and traps
13th Feb 2020As Martin Rogalski explains, given the complexities that lawyers invariably confront in cases involving asbestos disease and other latent onset diseases, some fundamental matters require consideration in every case.
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Law reform: Protecting the safety of Queensland mining workers
6th Feb 2020It is clear from a recent spate of deaths of mining workers that the resources industry has a long way to go to ensure its workers stay safe. The nature of the operations and sheer scale of the mining machinery used mean that when injuries occur in this sector, they are often very serious, and too often result in death where safe work practices have not been followed. Jason Monro supports moves by the Queensland government to extend the operation of industrial manslaughter laws introduced in 2017 to the resources sector.
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Why must women go unprotected from violent male neighbours?
30th Jan 2020Anna Kerr tells one women's story to illustrate just how our justice system is failing to fulfil its most fundamental purpose of protecting the vulnerable, and is also actively obstructing efforts to bring male perpetrators to account. She calls for greater societal recognition of male violence and better protections for women and children.
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Character test in s501 of the Migration Act 1958 (Cth) does not apply to Temporary Protection Visas
23rd Jan 2020As George Newhouse explains, a recent decision of the Federal Court has profound implications for anyone whose temporary protection visa application was refused or cancelled based on s501 of the Migration Act 1958 (Cth) and the Public Interest Criterion (PIC) in PIC 4001.
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Disputed statutory benefit matters – questions to ask your client
16th Jan 2020Although all disputed statutory benefit matters are different, as Margarita Fudim (Yerusalimsky) explains, there are some questions you should be asking your client in every case.
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Governments face a reckoning in the courts over climate change failure
9th Jan 2020In the midst of the bushfire catastrophe in Australia and in the shadow of the failure of successive governments to act on warnings by scientists, Greg Barns SC argues that it will only be a matter of time before the courts are forced to step in as they have done with Big Tobacco and Big Pharma.
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Three tips for kickstarting 2020 a happier lawyer!
12th Dec 2019As 2019 draws to a close, it is a good time to reflect on how we have managed the inevitable stresses that have arisen in our busy work lives and develop strategies for the year ahead. In this article, Clarissa Rayward, the recipient of the inaugural 2019 Minds Count Award for Individual Leadership in Legal Mental Wellbeing, shares some great tips.
Exciting news too, Clarissa will also be presenting at our 2020 Queensland Conference!
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The aged care Royal Commission’s three areas of immediate action are worthy, but won’t fix a broken system
5th Dec 2019There are no simple or quick fixes for the problems identified in the aged care Royal Commission's interim report, released in November 2019. Joseph Ibrahim calls on government to collaborate across ministerial portfolios to address the huge waiting list for home care packages, the use of chemical restraints in aged care facilities and the plights of younger people with a disability living in these facilities.
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The High Court proposes new rules about Aboriginal societies
28th Nov 2019Next week the High Court will hear argument on whether the common law’s recognition of customary native title logically entails the recognition of an Aboriginal society’s laws and customs, and in particular that society’s authority to determine its own membership, and whether there is a unique obligation owed to members of Aboriginal society. But have stakeholders been given enough time for meaningful intervention?
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Justice for survivors of institutional child abuse: how the NSW vicarious liability amendments shape up
21st Nov 2019Andrew Morrison RFD SC examines whether the reforms enacted by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) will deliver the promised pathways for justice to survivors of child abuse in institutional settings.
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The other side of the Royal Commission into Institutional Responses to Child Sexual Abuse
14th Nov 2019Tom Percy QC shares his concerns about the perceived shift in community attitudes towards a presumption of guilt for individuals charged with historical sexual abuse offences, particularly where an alleged offence took place in an institutional setting. He contends that an accused person should have an unconditional right to elect a trial by judge alone.
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Cannabis bans are ignored — so ditch the law and save money
14th Nov 2019Greg Barns welcomes the ACT government decriminalising cannabis possession, and calls for cannabis law reform across Australia.
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Computer-generated letters and the law – uncertainty following ATO decision
7th Nov 2019Tony Mitchell considers a recent case that raises serious questions about the legal accountability of a government department, corporation or individual for computer-generated correspondence sent in their name.
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Acting for clients who have suffered a traumatic brain injury
31st Oct 2019Tom Goudkamp provides invaluable guidance for lawyers who are acting for clients with brain injury to ensure they recover the compensation they are entitled to.
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National industrial manslaughter legislation would save lives
17th Oct 2019Jasmina Mackovic repeats calls for a national approach to industrial manslaughter laws following the recent tragic death of a worker in Sydney’s Port Botany, pointing to the lack of consistency across jurisdictions and the NSW government's unwillingness to introduce its industrial manslaughter laws in NSW.
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NSW prison population and the new sentencing laws – an update
10th Oct 2019Mark Warren looks at the impact of the new sentencing regime in NSW, introduced in 2018, on the types of sentences being imposed in NSW. While all the data is not yet in, there appears to be a trend towards community-based sentencing, such as Intensive Correction Orders, and away from short-term prison sentences.
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Are there dual entitlements to annual leave and weekly workers compensation payments?
3rd Oct 2019Ashleigh Kemp reminds practitioners about the need to carefully review the annual leave entitlements of clients on weekly workers' compensation payments following the Full Federal Court decision in Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81. She also provides some practical tips about calculating these, and considers other ways in which the dual entitlement can affect clients.
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Driverless dangers are here – and we need to be ready
26th Sep 2019Katie Minogue calls for national reform of existing motor accident injury insurance schemes to ensure that road users are adequately covered if they are injured by vehicles utilising ‘autonomous features’ such as adaptive cruise control, automatic emergency braking, lane-keeping assist and road-departure mitigation.
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Superannuation and TPD insurance: Ensure your clients don’t lose thousands of dollars in tax
19th Sep 2019Andrew Reynolds provides practical tips for personal injury lawyers practising in the areas of superannuation and TPD on how they can prevent their clients from making potentially costly decisions and help them to maximise their benefit.
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Legal and welfare checks should be extended to save Aboriginal lives in custody
12th Sep 2019Professor Thalia Anthony argues that to prevent deaths in custody, a custody notification service must be properly funded and available to all Aboriginal and Torres Strait Islander people in custody, including those who are detained in protective custody or following a paperless arrest.
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How social media affects compensation claims
5th Sep 2019Stephen Firth provides some valuable insights into the 'dos and don'ts' of social media use by clients in compensation cases.
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Costs order and the impecunious unsuccessful party
29th Aug 2019Dipal Prasad and Romaine Abraham discuss a recent High Court case which considered whether the impecuniosity of the unsuccessful party justifies the successful party bearing its own costs.
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Fines for South Australian driving offences jump by up to 500%
22nd Aug 2019Danielle Harris discusses the drastic increases in fines for driving offences in South Australia and questions whether the impetus for these changes is to raise revenue to address the budgetary dilemma currently facing the South Australian Government.
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Investigation reports and litigation privilege in motor vehicle accidents: Douglas v Morgan [2019] SASCFC 76
15th Aug 2019Natasha Budimski outlines the recent Supreme Court of SA decision Douglas v Morgan & Ors. This case directly challenged the ability of CTP insurers to assert legal professional privilege over investigation reports obtained early on in a motor vehicle accident claim, and ultimately make determinations on liability based on those reports.
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The next asbestos? Could Monsanto’s weedkiller Roundup cause cancer?
8th Aug 2019Tim Downie explores the growing litigation surrounding the effects of the weedkiller Roundup.
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Does ‘Never to be Released’ mean ‘life’?
1st Aug 2019Tom Percy QC explores six questions arising from the sentencing of Anthony Harvey, the first person in WA ordered by a judge never to be eligible for parole.
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Appearing before the Independent Commission Against Corruption (ICAC) – What you may need to know
25th Jul 2019Information and issues to consider when preparing to face an Independent Commission Against Corruption (ICAC) investigation in SA.
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Drivers lose out in insurance shake-up
18th Jul 2019The SA State Government’s recent rejection of a number of recommendations made by a parliamentary review into SA’s compulsory third party (CTP) scheme is bad news for injured motorists.
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Aboriginal group launches defamation case against Channel 7
11th Jul 2019Peter O’Brien represents a group of clients from the NT community of Yirrkala, who are suing Channel 7 in the Federal Court following a segment that was broadcast on Sunrise Breakfast. In June, Channel 7 attempted that argue that the community members’ Statement of Claim should be struck out.
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The high cost of preventable farm accidents
4th Jul 2019Justin Stack details some recent cases involving preventable farm accidents and emphasises the importance of farm owners and workers understanding their workplace safety rights and obligations.
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How to help your client without financial capacity
27th Jun 2019Jane Campbell discusses the recent ACT Supreme Court case of Williams v Hoang [2019] ACTSC 144 and provides top tips for plaintiff lawyers who are seeking to recover the cost of funds management.
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A free press and freedom of speech are fragile rights
13th Jun 2019Greg Barns reflects on last week's police raids of the homes and workplaces of journalists and what this could mean for freedom of speech and freedom of the media.
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Justice reinvestment: Key to reducing Indigenous incarceration
6th Jun 2019Professor Tom Calma AO makes the case for justice reinvestment: a community-led, data-driven and place-based alternative to incarceration.
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NSW notional estate provisions – helpful for some victims of financial elder abuse
30th May 2019Danielle Little advocates for Queensland and other Australian states to follow New South Wales in allowing family provision applications in wills and estate matters.
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Barristers Beware! Who is liable for your fee?
23rd May 2019Decisions of the Supreme Court of Victoria in the past few months highlight the need for barristers to be aware of the small steps that can enable the litigating client, as opposed to their instructing solicitor, to be liable for their fees.
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Regional justice under threat
16th May 2019With the South Australian justice system facing further funding cuts in the upcoming June budget, Amy Nikolovski explains why regional court services must be protected.
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Photography and the law – when is it illegal to take a photo?
9th May 2019Geoff Baldwin explores the rapidly changing nature and capabilities of modern photography and the laws surrounding it.
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Perspectives on a taxation of costs in the Federal Court of Australia in 2019
2nd May 2019Romaine Abraham explores the Federal Court's current interpretation of the Federal Court Scale of Costs.
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A public register of child sex offenders will do more harm than good
18th Apr 2019Greg Barns argues against Peter Dutton's proposal to establish a National Public Register of Child Sex Offenders.
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AHPRA, OHO and no further action – Do I have a claim?
11th Apr 2019What happens when the Australian Health Practitioner Regulation Agency (AHPRA) and Office of the Health Ombudsman (OHO) confirm that they are not taking a matter further, that there is no case to answer or that they believe the treatment by the health organisation or health practitioner was appropriate? Does this mean that the legal case should be abandoned? If the regulatory body is not critical of the health organisation or practitioner’s conduct, what is the claimant’s chance of succeeding in a medical law claim?
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The poker machine case: Guy v Crown Melbourne Limited (No. 2) [2018] FCA 36
4th Apr 2019Ngaire Watson discusses the case of Guy v Crown in which Ms Guy brought actions for misleading and deceptive conduct and unconscionable conduct under the Australian Consumer Law.
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The re-opening of Christmas Island: Two steps back
28th Mar 2019Following the Senate's passing of the Medevac Bill – which will provide clinical pathways for detainees requiring medical care and ensure that authorities are compelled to determine whether a patient may be transferred to Australia for treatment within 72 hours – the Australian government has announced its intention to re-open the detention centre on Christmas Island.
Kathryn Schmidt discusses the human rights implications of these political actions.
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Intentional torts and certificates of assessment under the Wrongs Act
21st Mar 2019Angela Sdrinis explores the effects of the Wrongs Act 1958 (Vic) on victims of sexual assault seeking to claim pain and suffering damages, with a particular focus on the recent case of Thompson v State of Victoria [2019] VCC 166.
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Legal professional privilege is a crucial element in maintaining the rule of law
14th Mar 2019Amy Nikolovski discusses the roundly condemned actions of Melbourne's 'Lawyer X', Nicola Gobbo, and the importance of legal professional privilege.
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Victoria must now act on Pell's Melbourne Response compensation scheme
7th Mar 2019Dimi Ioannou calls for reform of the Victorian sexual abuse compensation scheme, particularly in light of George Pell's recent conviction.
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Royal Commission into Aged Care Quality and Safety
28th Feb 2019An overview of the structure, composition and intended objectives of the Royal Commission.
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Gender dysphoria in Australia: The judicial response in Re Kelvin
21st Feb 2019Greg McAllister discusses the case of Re Kelvin and its implications for Australian minors with gender dysphoria who wish to commence hormone therapy.
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Are men still determining women's human rights? (part 2)
7th Feb 2019Anna Kerr discusses the outcomes of Australia's 2018 report to the UN’s Committee on the Elimination of Discrimination against Women (CEDAW) and how the government’s failures have undermined the human rights of Australian women.
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Are men still determining women's human rights? (part 1)
31st Jan 2019Anna Kerr explores whether women's rights are adequately represented and protected by international human rights law. She details the history and shortcomings of various international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women.
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Gig economy decision – Fair Work Commission finds delivery riders are employees
24th Jan 2019Sam Vasaiwalla explores the implications of the Fair Work Commission's decision in Joshua Klooger v Foodora Australia Pty Ltd [2018] FWC 6836.
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Can fintechs lessen financial stress for low-income employees?
16th Jan 2019An exploration of ‘employer-based’ fintechs and how the impact of their services may be a win-win for both financially stressed employees and cost-conscious employers.
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Immigration lawyers acting for asylum seekers are ‘unAustralian’
20th Dec 2018A reflective essay that responds to this assertion.
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New sentencing laws in NSW
6th Dec 2018Practical information for criminal lawyers and their clients.
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What is testamentary capacity? A basic guide.
29th Nov 2018Some of the details and circumstances that must be considered to determine if a will-maker has/had the capacity to make his/her will.
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Benzene: The colourless killer
22nd Nov 2018Luke Perilli details the dangers and effects of exposure to benzene, described by the World Health Organisation as ‘a major public health concern’.
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Algorithms, artificial intelligence, automated systems and the law
15th Nov 2018The extent to which the rights of individuals are threatened by autonomated systems and the ability of the law to safeguard those rights.
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TAC amendments allowing professional administration fees may fail
8th Nov 2018A discussion of legislative amendments that will impact TAC claimants in Victoria.
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Damages for pain and suffering
1st Nov 2018Harry Gill discusses two Victorian decisions that explore the assessment of pain and suffering damages in personal injury cases.
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Current legal struggles for people seeking asylum in Australia
25th Oct 2018Dr Carolyn Graydon, Principal Solicitor and Manager of the Human Rights Law Program, Asylum Seeker Resource Centre presented this paper at the ALA National Conference on 19 October.
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Expert evidence: Traffic accident reconstruction reports and physical observations
16th Oct 2018David Cormack discusses the decision and reasoning in the recent case of Brown v Daniels & Anor [2018] QSC 209.
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Superannuation and TPD Insurance: Four things you should tell every TPD client
11th Oct 2018Giving TPD insurance claimants specific information early on can stop them taking action that is potentially financially damaging and encourage them to think about how best to maximise their claim should it be successful.
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Personal injury claims assisted by disruptive technology
4th Oct 2018An exploration of an innovative new software – now available to personal injury lawyers in Australia – that converts 2D MRI scans to accurate 3D models.
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Why your non-dental cavities may be of interest to the authorities
27th Sep 2018In the event that new legislation permitting searches for internally concealed drugs is passed in NSW, criminal lawyers and their clients will have to adjust to a changing legal landscape very quickly.
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Building an inclusive and responsible credit system in Australia: Three lessons from the UK
20th Sep 2018Dana Beiglari shares three successful initiatives which are used, in conjunction with law reform, to improve access to credit for UK consumers.
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Work deaths in Australia top 92 for 2018
13th Sep 2018An exploration of the worker fatality and serious workplace injury rates for 2018 so far.
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Beware of failing to establish the inferential reasoning required for causation
6th Sep 2018David Cormack discusses the decision and reasoning in Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182.
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Financial capacity meets the real world
30th Aug 2018Using real client scenarios as examples, Jane Campbell discusses a lawyer's role in determining their client's financial capacity and helping a client to assess their financial management options.
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Language barriers, informed consent and interpreters in medical care
16th Aug 2018The pitfalls that occur when patients and healthcare providers are unable to understand each other due to language barriers, and what can and should be done in such situations to facilitate communication.
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Modern slavery – what can be done?
9th Aug 2018Geoff Baldwin outlines and examines the Australian legal framework through which modern slavery - present in the production chains of goods sold in Australia - can be addressed.
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The return of Silicosis
2nd Aug 2018Luke Perilli discusses Silicosis, the incurable lung disease increasing in prominence among Australian stonemasons, and the duty of employers to minimise the risk of their workers contracting the disease.
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How are compensation claims calculated in Queensland?
26th Jul 2018An exploration of the factors that are considered when calculating the total sum of a compensation claim.
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Implementation of the Paramedicine Board of Australia
19th Jul 2018From September 2018, all paramedics across the country will be required to be registered with the Australian Health Practitioner Regulation Agency (AHPRA) and complaints referred to the newly created Paramedicine Board, aiming to ensure the safety of the public from fake paramedics. Up until now there was no national standard for registration.
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Workers’ compensation system improves with access to free legal help
12th Jul 2018Justin Stack explores the proposed changes to the NSW workers' compensation scheme, changes that will improve access to legal representation for injured workers.
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Maternal rights must be recognised for the sake of children
5th Jul 2018Anna Kerr and Darelle Duncan discuss the move in NSW towards an increase in permanent adoption from foster care placements, and the negative implications this will have for children's welfare and maternal rights.
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Risk of death is more than a ‘blemish’
28th Jun 2018Queensland's workers’ compensation legislation supports workers who have been injured at work to get back on their feet, regardless of the cause of their injury. The exception to this is in relation to psychiatric injuries, in which case support can be denied in the event that an injury is caused by ‘reasonable management action’. Michelle Wright explores a recent case in which Industrial Commissioner Black has acted to limit the 'reasonable management action' exception.
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Emojis in litigation: Adding unpredictability and ambiguity to electronic communications
14th Jun 2018An exploration of the prevalence of emojis in modern electronic communications, and the increased legal analysis of what these emojis are intended to mean and/or imply.
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Filming an accident instead of helping – the law in NSW
7th Jun 2018A discussion of the NSW laws surrounding filming, and whether we owe strangers involved in an accident a duty of care.
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Can confidential medical records be subpoenaed in sexual assault claims?
31st May 2018Angela Sdrinis discusses a recent Victorian case that will be of particular interest to abuse lawyers, exploring the question of whether medical records which contain confidential communications can be subpoenaed in matters of sexual assault.
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Defamation actions: the high cost of social media posts, comments and ‘likes’
24th May 2018Seeking restitution for defamation in a world of social media.
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Can lease agreements be discriminatory?
17th May 2018An exploration of a recent case in which a non-compete clause in a shopping centre lease led to a discrimination complaint against a barber shop.
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Why private sector whistleblowers need better protection
10th May 2018Geoff Baldwin discusses the need for a comprehensive, Australia-wide scheme of private sector whistleblower protections as the public/private sector boundary continues to shift.
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Online alternative dispute resolution
3rd May 2018Michael Legg gives an introduction to Online Alternative Dispute Resolution (OADR), and discusses OADR's potential to extend access to justice and change the way in which disputes are resolved.
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How technological change is expanding open justice
26th Apr 2018Today, open justice is mediated not only by mass media, but by social media too. Courtrooms are more accessible than ever before. For the most part, this should be celebrated. But the expansion of open justice also poses real challenges for courts.
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Police accountability in Australia: Complaint mechanisms
12th Apr 2018What are the current police complaint mechanisms around Australia? And is Australia complying with its international obligation to ensure that perpetrators of human rights violations, and specifically those perpetrated by police authorities, are adequately held to account through an independent, effective and impartial investigation into their conduct?
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Sexual harassment in the legal profession
5th Apr 2018Adrienne Morton explores the prevalence of sexual harassment in the legal profession, and the ways in which it could and should be addressed going forward.
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A plaintiff need not be perfect
22nd Mar 2018The workers’ compensation system is a minefield for plaintiffs. Having to state and re-state your injuries, being interrogated about your pain, and having to convince people about and justify your restrictions, leaves the ground fertile for credibility issues.
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The NDIS and compensation
15th Mar 2018Tom Ballantyne gives an overview of the compensation claims process under the National Disability Insurance Scheme (NDIS).
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Hague Convention on the Civil Aspects of International Child Abduction
8th Mar 2018Is the Convention failing women and children escaping violence?
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Arresting assumptions of being 'in custody': R v Osborne-Horton (2017)
1st Mar 2018Paul Blake discusses what it means to be 'in custody'.
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How are costs assessed in your state?
22nd Feb 2018A practical guide to assessing costs in NSW, Queensland and Victoria.
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Security for costs: part 2
15th Feb 2018Read more about whether evidence of a policy from an ‘ATE’ insurer can suffice?
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Security for costs: part 1
8th Feb 2018Can evidence of a policy from an ‘ATE’ insurer suffice?
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How does the costs process work in your state?
1st Feb 2018The costs jurisdiction in every state works differently.
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Mental health and the reasonable person test
11th Jan 2018Historically, the law has had difficulty understanding and responding appropriately to psychiatric injuries.
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Personal Injuries Proceedings Act 2002 (Qld) health claims, s9 or s9A?
30th Nov 2017Confusion can arise as to the application of s9 and s9A of the Personal Injuries Proceedings Act 2002 (Qld).
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How are costs calculated in your state?
23rd Nov 2017Dipal Prasad and Romaine Abraham evaluate the pros and cons of the ways costs are calculated in various states.
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Costs disclosure before settlement: a nightmare with a dream solution
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The Queensland state election and personal injury entitlements
9th Nov 2017Michelle Wright investigates the impact the Queensland election may have on the rights of injured people to seek compensation.
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Calculating weekly payments of compensation
2nd Nov 2017Janet Tucci discusses the challenges of calculating compensation figures by analysing Stebbing v State of Victoria (Department of Education and Training).
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Bullied nurse wins $1.4m
18th Oct 2017Faran Gouldson discusses the case of Robinson v State of Queensland [2017] QSC 165 in which the plaintiff was awarded $1.4 million in damages.
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The use of secret evidence in criminal and civil proceedings
5th Oct 2017Court procedures aim to ensure fairness between parties. In criminal matters, the intention is to ensure that the party with the most to lose, the defendant, is assured a fair trial, to avoid punishing innocent people for crimes they have not committed. This requires setting out the case against an accused clearly enough that they can refute it. In civil matters, these procedures seek to ensure fairness between the parties, including ensuring that both sides have access to relevant evidence.
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Life as a regional plaintiff lawyer
21st Sep 2017The benefits and challenges of life as a regional plaintiff lawyer.
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Implications of the NDIS on personal injury compensation
14th Sep 2017The purpose of this article is to alert lawyers practising in the personal injury field to the implications of the introduction of the NDIS on clients entitled to receive compensation for their injuries.
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The Urogynaecological Mesh scandal
7th Sep 2017Approximately 50% of women who have had children will suffer some degree of pelvic organ prolapse. For thousands of those women, urogynaecological surgical mesh has been presented as a viable option. It is only recently that public has been made aware of the associated physical and psychological complications.
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Orthopaedic eponyms
31st Aug 2017This glossary explains some of the more commonly used eponyms to help those outside the medical profession better understand medical reports.
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Superannuation disability insurance: tips and traps
17th Aug 2017This article offers ten tips for successful total and permanent disablement (TPD) claims under insurance held through superannuation.
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Psychometric testing of malingering
10th Aug 2017Professor Ian R Coyle discusses the accuracy of Symptom Validity Assessment Tests (SVTs) in assessing the psychological status of litigants and identifying malingering
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Some traditions need to change: students and sexual abuse
3rd Aug 2017AHRC released a report on sexual assault and harassment of university students. The report details disturbing instances of sexual assault and harassment.
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The path of destruction runs deep
27th Jul 2017Queensland residents have certainly experienced their fair share of natural disasters. It is important that we give consideration to how the law can provide clarity and security to those affected.
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The language of the law
20th Jul 2017Lawyers are very analytical and very specific in their use of terminology. They choose their terms carefully and interpret them precisely. While such precision may seem to be a curious and even humorous idiosyncrasy to the lay-person, it can have a devastating effect on those seeking access to justice.
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Thaiday, RE [2017]: A review of the Mental Health Court system
13th Jul 2017Queensland Mental Health Court decides the case of Mrs Thaiday, charged with eight counts of murder.
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Linton Sayer v Melsteel in the Supreme Court of Victoria, June 2017
6th Jul 2017The plaintiff had been in continuous employment since the age of 16. He commenced employment with the defendant, as a boilermaker, in 2006. As and from 2008, Mr Savage became his supervisor and problems started to occur.
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Medical Treatment Planning And Decisions Act 2016 (Vic)
29th Jun 2017New legislation will come into effect on 12 March 2018 that will repeal the Medical Treatment Act 1988, and amend the Mental Health Act 2014.
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TAC's new client app: MyTAC
22nd Jun 2017The Victorian Transport Accident Commission has produced an app specifically designed for people injured in transport accidents.
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Connellan v Murphy [2017] VSCA 116
15th Jun 2017This recent Supreme Court of Victoria Court of Appeal decision permanently stayed proceedings relating to the alleged sexual assault of a minor in 1968.
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How to protect your client's TPD money
8th Jun 2017There are simple strategies that can be implemented to make the most of any TPD claim, particularly minimising tax payments and maximising other benefit entitlements.
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TAC’s new rapid payment scheme
11th May 2017A most welcome and far-sighted scheme is about to be rolled-out by Victoria’s Transport Accident Commission (TAC).
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‘Special Financial Assistance’ for Victorian victims halved
4th May 2017The VOCAT can only offer victims of the worst crimes, with the worst outcomes, up to $10,000 for any grief, distress, trauma or injury.
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Melbourne wall collapse: compensation under the Sentencing Act
20th Apr 2017Recent compensation settlements involving the families of pedestrians killed by a wall collapse highlight a rarely used avenue of compensation: claims under the Sentencing Act 1991 (Vic).
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Workers compensation and human rights
13th Apr 2017Since the enactment of the Charter of Human Rights and Responsibilities (Charter) in 2006, it has been necessary for Victorian legislation to be compatible with the 20 basic human rights set out in the Charter.
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The slippery grape strikes again
6th Apr 2017The recent New South Wales District Court decision in Guru v Coles Supermarkets Australia Pty Ltd (2016) NSWDC 349 further illustrates the duty owed by supermarkets to lawful entrants to their stores.
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Why practitioners should review their TAC files
30th Mar 2017A recent Victorian decision which provides that up to $20,000 extra for lost earnings is available to victims of transport accidents where the conduct involved a crime.
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Racism is bad for business
23rd Mar 2017Proposals in the parliamentary committee report on s18C of the Racial Discrimination Act 1975 (Cth) to limit access to the Australian Human Rights Commission (AHRC) should be resisted.
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Withdrawing and substituting issued bills of costs: can it be done?
16th Mar 2017This article focuses on the rights of solicitors. In particular, whether or not solicitors have the right to withdraw an invoice issued to their client and substitute it with an itemised bill of costs claiming higher fees than the original invoice.
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Pain and psychological conditions
9th Mar 2017Pain and psychological conditions: ‘which comes first, the chicken or the egg’?
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Complex regional pain syndrome: a diagnostic challenge for clinicians
2nd Mar 2017Complex Regional Pain Syndrome (CRPS) is a condition that is frequently disputed in personal injury compensation claims. Even for clinicians who regularly see cases of CRPS it can represent diagnostic difficulties. For other clinicians who see cases of CRPS less frequently, it maybe wrongly referred to as Chronic Regional Pain Syndrome or Chronic Pain Syndrome.
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Pain medicine physicians and pain management programmes
23rd Feb 2017Pain medicine is a relatively new medical speciality that can be used to assess personal injury cases where pain is a major contributing component to impairment and disability. This article outlines the specialist training, examination and expertise that distinguishes pain medicine physicians from other medical specialists and the difference between a pain medicine physician and pain management programmes (PMPs).
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Nervous shock & psychiatric claims after the loss of a child
16th Feb 2017The law in Australia as it currently stands has the capacity to compound a parent’s grief in such circumstances and generate more than justified contempt towards the legal system. Particularly given the widely accepted view across the community would be that entitlement to compensation in such horrific circumstances would be considered both reasonable and appropriate.
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Interim ban on ethanol burners after a spate of accidents & injuries
9th Feb 2017In late 2016 there were a number of announcements about the interim, 60-day, banning of ethanol burners in Queensland, and across other states and territories. The bans followed 38 incidents in Queensland and 117 in total across Australia since 2010.
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Teen burn victim claims against party host
25th Jan 2017In 2013, a 16-year-old girl suffered third degree burns to 42% of her body at a house party when a teenage boy poured an accelerant on to an open fire at a house party. In July 2016, the Brisbane Times reported that the young woman is attempting to claim almost $12m in compensation for her ordeal.
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The first interview with injured clients
19th Jan 2017I’ve interviewed thousands of injured clients, some with minor injuries, and others with the worst injuries imaginable. Every interview is different.
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How is the PI compensation process affecting your client’s recovery?
12th Jan 2017The experience of a long, complex and at times adversarial legal process pursuing personal injury (PI) compensation with the need for multiple health assessments and delays in receiving funds has been shown to increase stress and recovery time for injured people.
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Liability to entrants to the family castle
7th Dec 2016The Supreme Court of Queensland’s decision in Chandler v Silwood [2016] QSC 90, delivered by Holmes CJ and recently upheld on appeal, further highlights the duty of care owed by owner/occupiers of family homes towards those lawfully entering the property.
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GP chaperones – is a review warranted?
30th Nov 2016The need for chaperones for medical practitioners in private practice has received a lot of media attention in the past few weeks. With attention-grabbing titles such as “Chaperone ordered for Canberra GP accused of “grooming” female patient’, and ‘Darwin doctor banned from examining women without supervision’, one would be forgiven for believing there was an epidemic.
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Continuing Detention Orders: When courts try to predict the future, we
21st Nov 2016Anna Talbot and Greg Barns discuss continuing detention orders and the legal twilight zone that occurs when courts try to predict the future.
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‘Nervous shock’ and the Hillsborough disaster: injustices remain
15th Nov 2016David Schwartz discusses the psychiatric injury 'nervous shock' and the tragedy of the Hillsborough disaster in Liverpool.
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Expert reports in comp claims: tips to avoid evidentiary traps P2
9th Nov 2016Benjamin Whitten writes part two of his expert report in compensation claims - giving tips to avoid evidentiary traps.
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Expert reports in comp claims: tips to avoid evidentiary traps P1
2nd Nov 2016Ben Whitten writes an expert report in compensation claims and gives tips to avoid evidentiary traps.
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Evidence shows crimes committed by our government on Nauru and Manus
26th Oct 2016Evidence of crimes committed by the Turnbull Government on Manus and Nauru is compelling, say Greg Barns and Anna Talbot from the Australian Lawyers Alliance.
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Cosmetic Surgery: the end of an unregulated medical specialty?
19th Oct 2016In recent years, there has been a dramatic increase in the amount of cosmetic surgery being performed in Australia. Cosmetic surgery is no longer only for the rich and famous; it is becoming more popular and accepted within the community at large. The increase in the availability of cosmetic surgery has led to stiff competition between providers, driving down prices.
With this increase in use, there have been a number of recently reported incidents where patients have suffered adverse reactions during cosmetic surgery procedures or from patients unhappy with the results of their surgery, which highlights the lack of regulation of the industry.
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Australia - A refugee policy to condemn not replicate
12th Oct 2016At the UN Refugee Summit in NY Australia’s Prime Minister, Malcolm Turnbull, stood in front of world leaders and claimed his government’s refugee policy was the best in the world. But many people in Australia will tell you that Mr Turnbull’s boasting was misplaced.
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Traumatising Incident (Workplace) – Employer’s Response Inadequate
5th Oct 2016Sarah Dreger discusses the case of Greenway v The Corporation of the Synod of the Diocese of Brisbane [2016] QDC 195. In this case the District Court has awarded more than $450,000.00 to a young woman who developed post-traumatic stress disorder during the course of her employment as a residential carer for wayward youths. This was due to her employer's inadequate response to a traumatising incident that occurred.
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UN Refugee Summit NY: Turnbull breaks commitments
29th Sep 2016Anna Talbot and Greg Barns report on the UN Refugee Summit in New York and why the Turnbull Government's current approach breaks our commitment to the UN Refugee Convention.
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Changing Total and Permanent Disablement (TPD) Definitions
20th Sep 2016Historically, TPD definitions have usually been consistent with the definition of permanent incapacity under r1.03C of the Superannuation Industry (Supervision) Regulations 1994 which requires that the member’s ill-health render them unlikely to ever engage in gainful employment for which they are reasonably qualified by education, training or experience. However, insurers are increasingly amending their TPD definitions, because some stakeholders argue that too many claims are being paid out due to ‘generous’ TPD definitions.
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Abortion Decriminalisation (QLD) and International Human Rights P2
15th Sep 2016Denying women the right to access pregnancy termination services violates their rights in many different ways. Decriminalising abortion is not about morally or ethically condoning it. It's about recognising the dangerous consequences of its criminalisation – for women, girls and medical practitioners.
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Abortion Decriminalisation (QLD) and International Human Rights P1
8th Sep 2016On 10 May 2016, former ALP and now independent Cairns MP, Rob Pyne, introduced a private member’s bill into Queensland parliament to decriminalise abortion. Abortion and its facilitation, assistance and procurement have been criminal acts under Queensland law since 1899. Haven’t social and community standards changed in all that time? Well, “yes” and “no" - Benedict Coyne discusses.
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Drone safety is paramount and requires forward thinking Australian law
2nd Sep 2016Liability for drone injuries applies to operators or controllers pursuant to the Damage by Aircraft Act 1999 (Cth) which sets up a domestic strict liability regime for compensation for those injured on the ground by aircraft, mirroring international provisions which accomplish the same purpose. However, the technical and regulatory landscape in Australia is such that the owner of a drone or its operator are notoriously difficult to identify, and thus pursue, after an incident. There is no federal requirement on the owner or operator to be insured for liability for damages. No legislation presently requires registration of non-commercial operators and their equipment. This is problematic because the drones themselves are fairly unreliable.
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Imprisoning children – what is going wrong?
25th Aug 2016'You never really understand a person until you consider things from his point of view' - Atticus Finch from To Kill a Mockingbird may have very simply summarised how we should treat children who act out. In light of this, Zoe Le Quesne discusses what is going wrong in the youth justice system, and why it needs to change.
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ALA demands Comcare prosecute over Nauru
18th Aug 2016With the lid lifted on what the BBC refers to as "Australia's Guantanamo Bay", past abuses and workplace safety incidents on Nauru need to be prosecuted by Comcare, writes Anna Talbot and Greg Barns on behalf of the Australian Lawyers Alliance.
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Does Australia need Ryan’s Rule?
11th Aug 2016As a parent, it is natural to worry when your child becomes sick. With time being of the essence, parents and family members may feel their concerns are not being listened to. After all they are the ones who know when their children and loved ones are unwell. Unfortunately, a situation arose in 2007 which changed the way in which Queensland Health listened to these concerns.
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Martin's resignation and the NT Royal Commission
5th Aug 2016Martin's resignation signals a chance for the NT youth detention Royal Commission to maintain integrity and effect real change, writes Anna Talbot and Greg Barns on behalf of the Australian Lawyers Alliance.
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Beware Sunsuper Superannuation Insurance & TPD Changes
28th Jul 2016Sunsuper announced that from 1 July 2016, their superannuation insurance will be changing. These changes mark a radical shift in Total Permanent Disability (TPD) insurance. Greg Spinda briefly comments on the need for the changes and provides a summary of the pertinent changes to the TPD insurance cover.
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Nice attacks: Accuracy is important to understand this crime
28th Jul 2016WHAT HAPPENED in Nice on Bastille Day last week was awful in the true sense of that word. But do the actions of Mohamed Lahouaiej-Bouhlel who drove a truck through crowds celebrating the national day, killing 84 and injuring many more, constitute a terrorist attack, as the media and political class widely assumes? The sad reality is that no one knows yet why this tragedy happened. We may never know — he was shot dead to stop him from causing more mayhem. Islamic State have claimed responsibility, but there is no evidence that the attacker had any connections with the terrorist organisation.
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The Philanthropic Lawyer
21st Jul 2016A personal account of Chrissy Leontios' quest to provide humanitarian services to the community, in alignment with her vision and values of all Australians receiving access to legal advice and legal services, particularly women experiencing domestic and family violence and those who rely on the legal system to achieve their safety. Her hope is to inspire other law firms and lawyers to provide pro bono and fee reduced work within their own law firms, and to practise with compassion, empathy, and kindness.
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How the chemotherapy under dosing highlights a lack of compassion
14th Jul 2016The recent chemotherapy under dosing bungle in two South Australian hospitals has highlighted significant flaws in the way that victims of medical negligence are often treated. This is particularly concerning as the hospitals involved are publicly funded and have a mandated policy of open disclosure specifically for situations like this.
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Willis v State of Queensland: the MAT and the the Newman Amendments
8th Jul 2016Willis v State of Queensland: Is the decision of the Medical Assessment Tribunal the end of the road for those parties falling subject to the Newman Amendments?
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Equality in the Jury Room: A case study
1st Jul 2016The denial of a deaf person’s right to exercise their citizenship by participating in juries in Australian courts is longstanding. The stereotyped perceptions against deaf jurors being able to perform these duties without undermining the administration of justice are deeply entrenched in Australian society and court systems. Despite the New South Wales Law Reform Commission’s inquiring into this issue in 2006 and the recent report from Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, which called for law reform and support to enable deaf persons to participate as jurors, the reality remains that Australian law does not support the participation of deaf jurors.
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New NSWTAG fee impacting vulnerable plaintiffs
24th Jun 2016Recent fee changes at the NSW Trustee & Guardian (NSWTAG) will leave most privately managed clients worse off.
The new fee means that plaintiffs with private managers will have been undercompensated for the cost of funds management.
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Refugee week - we are all just people wanting a happy life
16th Jun 2016Imagine you are incredibly wealthy. You have a house that provides for more room than you need, and you have a support network that reaches far and wide. You have medical benefits, superannuation, savings and knowledge of how life works. Imagine life is good for you. Now, imagine you knew someone who was not so lucky. Imagine you knew of someone who was living in fear of their life. Imagine this person was trying to run from a place of violence and abuse. Someone without any benefits and no understanding of how to get these benefits. The question I pose to you is this, would you help them?
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Untold Damage - workplace health and safety in immigration
10th Jun 2016Abuse, mental illness and neglect of basic hygiene cause unnecessary and lasting health problems for detainees in immigration detention. They have even caused death. As Commonwealth workplaces, all people affected by immigration detention facilities are supposed to enjoy the protections found in the Work Health and Safety Act 2011 (Cth) (the WHS Act), including detainees. However, an investigation by the Australian Lawyers Alliance (ALA) reveals that this law is being regularly flouted, with the Department of Immigration and Border Protection (the Department) regularly failing to meet its obligations.
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To disclose or not to disclose, that is the question!
3rd Jun 2016While there is no obligation on a lawyer to make a file note of a conversation with a medical expert, is it ethical for a lawyer not to make a recording of a conversion in circumstances where the instructions to the specialist are for a verbal opinion only? Joanne Baker discusses.
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NDIS at Risk of Privatisation: 2016 Budget
27th May 2016With all the hype about superannuation measures, tax changes and lack of initiatives on housing, a small bit of critical information has been left out of the public eye. The 2016 Budget papers reveal a demonstrably sly and inconsistent move by the federal government that could well destroy the National Disability Insurance Scheme (NDIS).
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The World Humanitarian Summit - a global fight for human rights
20th May 2016Currently, our world is witnessing the highest level of human suffering since WWII, and the biggest humanitarian crisis in our lifetime. There are, at present, around 60 million forcibly displaced people worldwide, 409 ongoing conflicts, and over 100 million people affected by crises and natural disasters every day. What’s worse is that last year proved to be the lowest funding year globally for humanitarian issues, despite being the year with the largest humanitarian needs. This is why, for the first time in the history of the United Nations (UN), the UN Secretary-General Ban Ki-moon has called for a two-day World Humanitarian Summit to take place in Istanbul commencing on 23 May 2016.
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7-Eleven workers and their rights in Australia
13th May 2016The recent 7-Eleven scandal has highlighted some of the most significant breaches of trust by employers in Australian history. Our firm has been involved pro bono in many of the claims made by 7-Eleven workers in relation to the underpayments of their wages by their employer. We have now claimed over $2 million in underpayments for these victimised staff. The scale of the underpayments has been breathtaking, with one employee owed over $300,000 and another paid as little as 47 cents an hour.
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Using peace to resolve family law conflict
5th May 2016The irony of litigating family matters is that parties are effectively using litigation to counter and respond to family conflict. But rather than working as a conflict resolution tool, litigation actually extends the conflict, and perpetuates further conflict. Yet somehow this negative plus negative response is meant to achieve a positive result.
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Growing Young PI Lawyers
22nd Apr 2016To this day, it is still my very strong view that this form of entry into the profession (via an extended period of practical on the job training) is by far the best for the student. Such an option offers the best of both worlds: practical experience in personal injury practices, and expert academic tuition at one of our law faculties.
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MH370 families should get more time to claim
15th Apr 2016How much is a life worth? This is a difficult question, especially in the aftermath of the loss of a loved one but the law demands that it be answered.
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Farnham v Pruden & Anor [2016] QCA 18
8th Apr 2016Shane Lawlor provides a case note that looks at the Civil Liability Act 2003 (Qld) (CLA) and the Workers’ Compensation and Rehabilitation Act 2003 [(Qld) (WCRA)].
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Black Lung Disease in Queensland
1st Apr 2016A recent 7.30 report program on the ABC suggests that as many as 1,000 Queensland Coalminers could have coalminer's pneumoconiosis or, as it is more commonly known; black lung. This dangerous and often deadly lung disease is of serious concern for workers and their families in this state.
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Child Sex Abuse – An International Problem
24th Mar 2016Over the last decade, the issue of child sex abuse, and the barriers to justice for survivors or child abuse, are finally being dealt with by governments and institutions throughout the Western world. Here are the recent developments...
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Moving beyond legalistic responses in family law
18th Mar 2016Domestic and family violence (D&FV) is a heinous, and omnipresent epidemic in Australia. D&FV is more than physical violence. It is actual and threatened behaviour, and behaviour which is used to incite fear. It is coercive and controlling in nature, and includes emotional, psychological, economic, sexual, social, property, and family abuse. It is insidious and has no boundaries. No social group is immune from attack.
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Grata Fund: opening the doors to public interest litigation
10th Mar 2016Sometimes when it rains, it really buckets down. In just one week in June 2015, courts in two continents delivered landmark public interest victories on two of the defining issues of our time.
In the Netherlands on 24 June, 900 co-plaintiffs successfully obtained a court order forcing the Dutch government to adopt more stringent policies against climate change. This historic verdict was the first time a judge had required a State to take action against climate change, and has inspired climate change litigation around the globe.
Two days later, the US Supreme Court overturned a patchwork of discriminatory state laws and decades of political equivocation to rule that marrying the person you love, regardless of their gender, was a fundamental Constitutional right.
These cases demonstrate public interest litigation at its finest. Supported by groundswells of community support, these cases broke entrenched political impasses and overturned laws that lagged behind community values.
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Self-Represented Prisoners left behind in the justice system?
4th Mar 2016Prisoners are arguably one of the most disadvantaged groups in Australia (and the world). Little to no research has been conducted about the impact on prisoners who are also self-represented litigants (hereinafter referred to as ‘self-represented prisoners’) such as, the extent to which prisoners encounter difficulties in accessing justice while in prison, the impact on prisoners and the resolution of their legal problem, and what efforts, if any, are being made by different Corrective Services departments to facilitate better access to justice.
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Gender dysphoria – a child’s right to self determination
12th Feb 2016The shortcomings inherent in a democracy in my view are largely centred around the failure to recognise our fellow human beings as equal, irrespective of their persuasion, sexual or political, religion, race or occupation. Joshua Dale discusses links the acceptance of gender change, with human rights in Australia as a whole.
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Charting New Waters for a Queensland Bill of Rights - Part B
5th Feb 2016The political appetite for an inquiry for a Queensland Bill of Rights was not quite ready in early 2015. There was an already jam-packed agenda for an unexpected Labor government in its first term... In the second part of his article, Benedict Coyne discusses a Bill of Rights in QLD.
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Charting New Waters for a Queensland Bill of Rights - Part A
29th Jan 2016“Land ahoy!” In the distance, the parliamentary promise of a more just, accountable, compassionate, tolerant and democratic society looms large on the political agenda for Queensland in 2016. Benedict Coyne discusses the idea of a Bill of Rights in Australia in his two-part Opinion article commencing this week.
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Conclaves: A Step by Step Guide in Queensland
18th Dec 2015Although introduced in Queensland in 2005, conclaves have been relatively rare and unfamiliar territory to most legal practitioners and medical experts alike. Disputes will undoubtedly arise between legal practitioners and medical experts. Jasmin Sears provides a step by step guide to conclaves in Queensland.
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Suicide Prevention and Self Care
10th Dec 2015Lawyers regularly deal with clients who are facing trauma and may be at risk of suicide or self-harm. Lawyers are also vulnerable to vicarious trauma. We need to talk about suicide prevention and self care – not just for clients, but also for legal practitioners, writes Bill Sayers, National Manager of Hope for Life at The Salvation Army.
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The challenge of transboundary environmental disasters
9th Dec 2015Following the devastation surrounding the Samarco mine disaster, the Brazilian government has filed legal proceedings against the companies involved. Emily Mitchell, Senior Policy Officer at the Australian Lawyers Alliance asks: had transboundary damage occurred, would there have been such swift action?
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Communicating Rights to Non-Native Speakers of English
2nd Dec 2015Diana Eades discusses the importance of making sure non-native speakers of English understand their legal rights, and provides recommendations for better communicating these rights.
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Vic ombudsman to investigate workers comp claims
26th Nov 2015Bring on the Victorian Ombudsman’s investigation into workers compensation claims, writes Liberty Sanger, Principal at Maurice Blackburn.
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Systemic failures to blame for infant deaths at Bacchus Marsh Hospital
20th Nov 2015Paula Shelton investigates the factors that lead to substandard medical care, injury and death.
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Cosmetic vs plastic surgery
13th Nov 2015The difference between seeking cosmetic or plastic surgeon can be significant, writes barrister Ngaire Watson.
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Human rights in OPCs: No Business in Abuse
30th Oct 2015No Business in Abuse board member, Jacob Varghese, argues Transfield has breached its human rights obligations in its provision of services to the Australian Commonwealth on Manus Island and Nauru.
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Third wave asbestos exposure: when bystanders are endangered
9th Oct 2015Martin Rogalski looks at the story of Tonya Fenton —a mesothelioma sufferer in the third wave of asbestos exposure —to remind us of the ongoing risk to innocent bystanders and the evidentiary hurdles in third wave claims.
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Australia’s opaque offshore asylum policy on Nauru
2nd Oct 2015Joshua Dale reflects on the Senate committee inquiry into the Nauru regional processing centre and the lack of transparency.
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Timeframe for applying for Workers' Comp: A Change in Interpretation
25th Sep 2015Kaine Shanahan examines the timeframe for applying for statutory workers' compensation in light of recent case law in Qld.
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Medical negligence law over the past year
10th Sep 2015Olamide Kowalik analyses the developments in the area of medical negligence by reference to pivotal decisions in Australia over the last 12 months.
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Nips and tucks abroad
4th Sep 2015Victoria Gallanders investigates the jurisdictional issues in the fast-growing industry of cosmetic surgery tourism.
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Money and injury – big changes afoot
27th Aug 2015Changes are being made to the way that injured people can access financial support. Are the changes being made to government support, compensation and disability insurance a step in the right direction for injured Australians? Jane Campbell assesses the issues.
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Change to DSP Medical Assessment
14th Aug 2015The change to the disability support pension (DSP) medical assessment process may impact the accuracy of decision-making and reduce the number of successful applications. This raises the question: is there an alternative option to secure financial support for these clients?
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Changes to prisoner related compensation a cause for concern
30th Jul 2015While the Wrongs Amendment (Prisoner Related Compensation) Act 2015 (VIC) has received some populist approval, criminal law specialist Nicole Spicer explains why it is concerning for a number of reasons.
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Courageous detention centre staff challenge the government
1st Jul 2015Courageous staff from immigration detention centres have today challenged the federal government to prosecute them, as the Border Force Act 2015 commences as law. The ethical and legal dilemma posed to these professionals is considerable with the full consequences yet to come, writes lawyer Ebony Birchall.
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First NDIS case in the Federal Court
19th Jun 2015The first NDIS case has reached the Federal Court, on appeal from the AAT.
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Nauru and the Moss Review
19th May 2015A Senate inquiry is currently examining the Commonwealth's duty of care in Nauru following the release of the Moss Review, which detailed abhorrent allegations of sexual abuse and harassment in the centre. We submitted to the inquiry, asserting that the Commonwealth has a duty of care both at common law and under work, health and safety laws.
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A Letter to Joko Widodo
17th Apr 2015An appeal to the Indonesian President to spare the lives of Myuran Sukumaran and Andrew Chan.
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Levelling up the WA CTP road map
16th Apr 2015With the WA government soon to make decisions on CTP, it is important that people do not lose important rights.
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Queensland Election - A Win for Workers
1st Apr 2015The rights of injured Queensland workers are set to be reinstated following the Australian Lawyers Alliance and Workers Protection Coalition’s campaign against unfair legislative amendments to Queensland’s WorkCover laws.
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Diplomacy with teeth
9th Feb 2015Is Australia doing enough to save two young Australians on death row in Indonesia?
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Rechampioning a charter's chances: a human rights act for Australia
10th Dec 2014Human rights protections in Australia are still far from adequate. The 64th International Human Rights Day (10 December 2014) provides us with an opportunity to assess where we are at and the direction in which we intend to progress.
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Sexual harassment in the workplace - when enough is enough
25th Sep 2014Two recent cases have seen women being awarded with significant damages following sexual harassment in the workplace.
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Five years of waiting for investigation into Montara oil spill
21st Aug 2014Five years ago today, the Montara oil spill began in Australian waters of the Timor Sea. For five years, Indonesian communities have claimed to have suffered detrimental impacts to their health, environment and economy. To date, there has still not been an independent investigation, writes Australian Lawyers Alliance's Emily Mitchell.
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Examining calls for an institutional abuse redress scheme
15th Aug 2014This week, the Truth, Justice and Healing Council recommended that a national redress scheme be established to compensate survivors of institutional abuse. The devil is always in the detail, writes the Australian Lawyers Alliance’s Emily Mitchell.
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A voice against threats to mining objection rights in QLD
31st Jul 2014Recently, legislation was proposed in Queensland that clearly favours mining companies and proposes to significantly reduce the legal rights of landholders and the general community. Communities' rights to be notified, consulted and to object should remain protected, writes Amy Park.
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Senate should reject proposed changes to Comcare scheme
24th Jul 2014The Senate’s Education and Employment Standing Committee recently released its report dealing with proposed legislative changes to the Comcare workers compensation scheme. The Senate should reject the proposed changes, writes Geoff Wilson.
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The bitter taste of WorkCover SA
17th Jul 2014Renowned nationally for its battered financial status, inadequate benefits to workers and long delays, it’s time to consider a new scheme for injured workers in South Australia, writes Patrick Boylen, SA President of the Australian Lawyers Alliance.
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UN condemns inadequate response to police violence
3rd Jul 2014A powerful condemnation of the inadequacy of Victoria’s laws to compensate victims of police violence has been delivered by the United Nations Human Rights Committee.
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Hovarth v Australia marks a new opportunity for the Australian and Victorian governments to ensure our laws conform with international human rights obligations, writes Sophie Ellis, solicitor at Flemington and Kensington Legal Centre. -
Protecting Australia's innocent
19th Jun 2014Few avenues for redress exist for individuals in Australia who have been wrongfully convicted. It's time to discuss establishing an independent Criminal Case Review Commission, writes Lauren Fitzpatrick, Media and Policy Assistant at the Australian Lawyers Alliance.
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Injured workers still burnt by compo changes in NSW
12th Jun 2014The stark reality is that the 2012 amendments to the NSW Workers' Compensation Scheme have slashed injured workers' entitlements and their ability to make an early, safe and durable return to work, writes Anthony Scarcella, NSW Director of the Australian Lawyers Alliance.
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Norrie: paving the way for meaningful recognition of sex and gender
5th Jun 2014The recent High Court decision in Norrie was significant in its recognition of identity, and that not all human beings can be classified by sex. Giri Sivaraman and Alessandra Peldova-McClelland examine the case's impact on LGBTI rights in Australia.
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Budget overview: Cuts to justice and human rights
15th May 2014With the Federal Budget announced on Tuesday night, commentary has spread far and wide. Here, we provide a snapshot overview of some of the suggested changes that impact on human rights review, legal assistance, Indigenous rights, asylum seeker rights and human rights education.
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Budget overview: How are the injured placed?
15th May 2014With the Federal budget cuts targeting $80 billion from health and education over the next decade, the young, unemployed and injured are likely to carry the weight of the burden. Here, we provide for our readers a short overview of some of the cuts that may affect injured people and people living with a disability.
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A Q&A on QLD workers compensation changes
8th May 2014ALA QLD President Michelle James answers questions about Queensland's workers compensation scheme, which removed workers' rights following amendments passed into law this year.
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Racial discrimination changes to axe vicarious liability & exemptions
1st May 2014Proposed changes to the Racial Discrimination Act 1975 (Cth) are being hotly debated in the media, however, the focus on s18C could be missing crucial issues, writes Emily Mitchell, Legal and Policy Officer at the Australian Lawyers Alliance.
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Future patients in the dark
14th Apr 2014Future patients are currently in the dark when it comes to knowing if health practitioners have had complaints lodged about them or conditions placed upon their practice, writes Ngaire Watson.
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Red tape and the injured worker
7th Apr 2014One person’s red tape may be another’s safety regulation when it comes to the Comcare scheme, writes Bill Redpath.
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The money or the drip: lump sum vs no-fault benefits?
21st Mar 2014No-fault compensation is all the rage, but at what cost to people’s rights? President-Elect Andrew Stone writes of its shortcomings.
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Napthine Government erodes separation of powers
3rd Mar 2014Individuals injured in a road accident in Victoria may be worse off following legislative changes which will impede access to appeals, writes Geraldine Collins, National President of the Australian Lawyers Alliance.
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Dangerous changes to espionage law
NeverThe National Security Legislation Amendment (Espionage And Foreign Interference) Bill 2017.
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