In wake of the World Health Organisation declaring COVID-19 (Novel Coronavirus) a pandemic, many workplaces have responded to help stop the spread of the virus by changing their working arrangements, with many industries making the move to work from home.

However, not all workplaces have been able to work online. Service industries such as retail and hospitality have been among the hardest hit after government restrictions closed restaurants, bars and retail outlets. Employers and employees alike are feeling the serious socio-economic effects of COVID-19 as millions of jobs are either becoming redundant or at risk of becoming redundant, amid the increasing severity of temporary government restrictions.

This week, the Federal government introduced a $130b economic stimulus package to assist small businesses to retain employees. Businesses will receive a fortnightly wage subsidy up to $1,500 per employee in an effort to prevent millions of workers from losing their jobs.

So, what are your employee rights and obligations in the light of this rapidly changing crisis? It largely depends on your individual circumstances.

Sources of law

Australia’s workplace laws emanate from various sources, but the main protections are contained in the Fair Work Act 2009 (Cth) (“FWA”), the relevant awards, the Workplace Health and Safety Act 2011 (Cth), Workplace Health and Safety Regulations 2011 and Model Codes of Practice. WHS legislation is crucial as it requires employers to identify risks in the workplace, and do what is reasonably practicable to eliminate them, or where this is not reasonably practicable, to minimise those risks.

Employees should also note the published advice by the Department of Health.

Self-quarantine and self-isolation

All states and territories have engaged similar emergency powers under respective public health legislation. Your requirement to self-isolate for 14 days applies in the following situations:

• If you have tested positive for coronavirus
• If you have come in close contact with a confirmed case of coronavirus
• You arrived in Australia after midnight on 15 March 2020.

If you find yourself in any of the above situations, you should contact the Department of Health, and your employer immediately.

All travellers returning to Australia after 15 March 2020 must self-isolate for 14 days. If you refuse to comply, severe penalties apply in each State or Territory.

If you are required to self-isolate, then you must not attend work. Your options may include:

• Working from home – You should discuss this with your employer and review any agreements, employment contracts, enterprise agreement or workplace policies
• Taking sick leave, if you are unwell
• Taking annual leave or other leave such as long service leave
• Taking leave without pay

If you cannot work because you are subject to self-quarantine, you are not entitled to be paid unless you use your leave entitlements. Employees subject to a government enforcement order are not ordinarily entitled to be paid. There is a distinction to be made with an employer’s direction.

You may wish to discuss with your employer if you can undertake alternate work.

What if I want to stay home as a precautionary measure?

You should discuss your options and any alternative working arrangements with your employer.

Do I have any obligations as an employee?

Under WHS laws, your employer must ensure the health and safety of all employees. As an employee, you also have obligations. Under the Work Health and Safety Act 2011 (Cth) you have four obligations while you are at work:

1. To take reasonable care for your own health and safety
2. Take reasonable care that your acts or omissions (failure to do something) do not adversely affect the health and safety of other persons
3. Comply, so far as you are reasonably able, with any reasonable instruction that is given by your employer under the Act
4. Co‑operate with any reasonable policy or procedure of your employer relating to health or safety at the workplace that has been notified to you.

Casual employees

Casual employees do not have paid leave entitlements under the National Employment Standards, as they receive a higher rate of pay in place of leave entitlements. However, under the Fair Work Act 2009 (Cth), casual employees are entitled to 2 days of unpaid carer’s leave per occasion.

If you have lost your job, you may be eligible for the Jobseeker Allowance through Centrelink.

If you have been dismissed, and believe that it has been done in a ‘harsh, unjust or unreasonable manner’ then you can apply to the Fair Work Commission.

Stimulus package for casual workers and sole traders

The government’s second coronavirus stimulus package is designed to provide relief for retirees and to assist workers who cannot find work as a result of COVID-19 restrictions.

If you have been affected, you may be able to access a “coronavirus supplement” of $550 a fortnight for the next six months.

The package also includes doubling the Jobseeker Allowance through the introduction of the coronavirus supplement – providing an extra $550 fortnightly. This will be available to workers who meet the income test.

From mid-April 2020, you can apply for early release of your super if you satisfy one or more of the following:

• You are unemployed
• You are eligible to receive a job seeker payment, youth allowance for jobseekers, parenting payment (including the single and partnered payments), special benefit or farm household allowance

• On or after 1 January 2020:
  • You were made redundant
  • Your income or hours have been reduced by 20 percent or more.

This will be capped at $10,000 this financial year, and $10,000 in the next financial year. The withdrawal of your super will be tax-free.

Income Protection Insurance

Many employees have an automatic Income Protection Insurance Policy. You may be able to access your Income Protection Insurance through your super fund if your balance is above $6,000. Contact your super fund to discuss your options and eligibility.

Further Information

For further information on employee entitlements during the COVID-19 crisis:

• Department of Treasury
• Fair Work Ombudsman
• Fair Work Australia

If you suspect that you, or someone you know, has COVID-19, call:

• Coronavirus Hotline on 1800 675 398
• Department of Health

      To register for the coronavirus supplement, login to:

• Mygov

Imagine happening upon a $200 gift card from Christmas only to discover that you missed the expiration date by one day!

You enter the store and are faced with a smug sales assistant who refuses to redeem your card. The store retains your $200 credit without providing any goods or services in return. Unfortunately, it’s a scenario that plays out every day at thousands of retailers around the country. Australians spend approximately $2.5 billion on gift cards and lose $200 million on unredeemed gift cards each year.

So what are your rights under Australian consumer law?

Expiry periods

Gift card expiration periods range from between 3 months to 24 months.

Most expire within 12 months, with the exception of gift vouchers from retailers such as Apple and Bunnings which have no expiry date.

NSW gift card reforms

In NSW alone, it is estimated that $60 million a year is lost on unredeemed gift cards.

Over a period of 5 years, NSW Fair Trading received over 1300 complaints, sparking calls for gift card reform. In October 2017, NSW Parliament passed amendments to the Fair Trading Act 1987 (NSW), introducing a mandatory minimum expiration period of 3 years.

This means that from 31 March 2018:

Most gift cards and gift vouchers bought in NSW will have a mandatory minimum expiry period of 3 years.

In NSW there is also now a ban on charging any post-purchase fees when redeeming a gift card which would reduce its value, including account-keeping fees and activation fees.

Tom Godfrey, Head of Media at consumer advocacy group, CHOICE, welcomed the reforms:

These reforms have been a long time coming and are a big win for NSW consumers … we hope it signals the beginning of the end of retailers cashing in at our expense”

NSW is currently the only state in Australia to introduce such reforms, which align with countries such as the United States, Canada and the United Kingdom.

Where does gift voucher cash go after the expiration date elapses?

Unfortunately, your cash reverts back to the store.

The retailer profits without providing any goods or services for which the voucher was purchased.

Can you challenge a store to honour your gift voucher?

Generally, businesses are not required to honour gift cards after the expiration date elapses.

You do, however, have a few options:

Option 1

Ask to speak to the Store Manager.

Calmly and courteously discuss an arrangement that involves redeeming the gift card by a specific date. This might be on the date that you are at the store or at a later date. Managers are often flexible and may try to accommodate honouring your gift card not only as a sign of good faith but also to retain your business in the future.

Option 2

If Option 1 is unsuccessful, you may wish to make a complaint to the Head Office of that specific retailer.

You can do this by phone or in writing.

Retain a copy of your correspondence or, if you are making a complaint by phone, request a reference number for your call. You can use this information as evidence if you choose to take things further.

Option 3

Make a complaint to your State or Territory Consumer Protection Agency such as Consumer Affairs or Fair Trading.

Option 4

Contact the Australian Competition and Consumer Commission (ACCC). The ACCC is the competition and consumer regulator and deals with a range of consumer complaints.

Option 5

Depending on the nature of your complaint, if it remains unresolved, you may be entitled to take your complaint to your State or Territory Small Claims Tribunal.

Option 6

If you have explored all the above options, you may wish to consider seeking independent legal advice about what options are available to suit your circumstances.

Time for nation-wide reform

While the recent legislative changes to gift voucher expiration periods are a welcome protection for NSW based consumers, it is about time that other Australian jurisdictions make comparable reforms.

Unfair gift voucher expiration periods and hidden fees generate millions of dollars of passive revenue for large corporations at the cost and prejudice to Australian consumers.

These cards are a gift horse for retailers who can take advantage of inflation, changes in value and low redemption rates. The least these companies can do is offer a product that’s fair, including a minimum expiry with no sneaky fees, says Tom Godfrey.

What do you think? Would you like to see gift voucher reforms in your State or Territory? Let us know in the comments! 

More on BucketOrange Magazine

• When Can You Seek A Store Refund?
• When Can You Legally Be Charged A Cancellation Fee?

According to Professor Vyvyan Evans, an expert in language and communication, we are now living in the ‘age of emoji’ where the ‘stratospheric rise of emoji’ largely fulfils the function of non-verbal cues in spoken communication.

The nature of modern communication in hyper-shortened digital snippets has made it more challenging than ever before to convey our true non-verbal meaning. Hardcore writers will tell you that “if you can’t describe what you want to say in words without using images or emojis, you’re not writing it well enough.”

But with character limits placed on text messages, Tweets and other social platforms, emojis have largely stepped in to bridge the gap in digital communication and to help to convey well-rounded messages.

When we send a sarcastic message to a friend, for example, we invariably include a winky face, smiley face, and maybe a tongue face emoji, just to drive the message home that we are not being openly rude, facetious or engaging in undue mockery. When you stop to think about it, emojis have become a critical supplement to modern communication.

While emojis may appear to be harmless icons, they are increasingly being recognised in legal contexts to infer the mental state or intention of the sender, particularly in scenarios involving threats of violence. 

Emoji and the law

Traditionally, courts have relied on hard evidence such as documents, words, audio and video recordings as evidence to establish criminal intent. But the strong influence of pop culture and widespread use of emoji as an enhancement to language means that it has been necessary for the courts to cast the evidential net much wider.

Emoji can constitute a punishable threat of violence

While the meaning of emojis can be ambiguous, and subject to many different interpretations, the courts have increasingly been drawing inferences about the intention of the sender based on the overall textual context.

In one recent example, an astonished face emoji paired with a gun emoji was considered by a court to be evidence of a death threat.

In 2016, a Frenchman was sentenced to six months in jail for sending his ex-girlfriend a text message that included a gun emoji. The judge ruled that the message could be interpreted as a “death threat in the form of an image.”

In June 2015, police in South Carolina arrested two men for sending threatening emojis considered to constitute stalking after the men had been accused of assaulting the victim.

Police inferred the above sequence of emojis to mean that the text recipient would be assaulted and end up in hospital.

In New Zealand, Judge Phillips considered that a man who sent a threatening message to his ex-girlfriend through social media that she was “going to f***ing get it ” along with an aeroplane emoji was sufficient to suggest that he was “coming to get her”. The man was jailed for eight months for breaching a protection order taken out by his ex-girlfriend.

What about Australia?

Cases involving emojis admitted as evidence are comparatively sparse in Australia.

In one case, DPP v Gee, evidence containing emojis, including a winking face, was admitted to establish the intent of the defendant in court.

In the UK, while case law demonstrating the use of emoji in evidence is not widespread, the family law case of RC v AB paved the way for future cases. In this case, the defendant photoshopped a devil emoji over his wife’s face in an old group photo and posted the adjusted image to Instagram. The defendant claimed the photo was meant to be “cheeky” and “humorous”, however, Justice Cobb expressed disdain for the defendant’s actions, describing them as “harassing” and going to the defendant’s behaviour and state of mind.

Emoji in Wills

In Queensland this year, an unsent text message from a deceased man that left his house and superannuation to his brother and nephew and ended with “My will ” was not considered by the courts to be a valid expression of the deceased man’s intentions given its informal nature.

The diversity of outcomes in the above cases is an indication of the difficulty involved with inferring intent from an emoji. The task of interpreting an emoji is subjective. It can be difficult for most of us to distinguish between joking, ironic or deliberate messages, let alone apply an objective standard to them. For this reason, it’s likely that this will be an area of the law that continues to develop in the coming years.

Future of law

As language and digital communication styles evolve, so must the law. Emojis demonstrate mood, emotion, mindset, tone and intention. It seems reasonable to assume that Australian courts will increasingly consider and draw inferences from emojis in evidence, especially given their ability to convey intent behind civil action and criminal charges. How far this goes is yet to be seen.

In the meantime, the above cases signal that the courts, and the legal profession, need to recognise the impact of technology on court procedures and processes including how this additional body of evidence can have the potential to shape the outcome of proceedings.

Importantly, the admission of emojis into evidence should serve as a timely reminder that what you might consider harmless emoji banter between friends, partners or colleagues could end up in court.

In May this year, the Turnbull Government announced the first ever comprehensive review of Australia’s family law system and an $80 million injection of funding to frontline family law and family violence services.

Last week, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake the first comprehensive review of the family law system since its the Family Law Act commencement in 1976 which he considers to be “necessary and long overdue.”

The review will be led by Professor Helen Rhoades from Melbourne Law School in response to the evolving needs of Australian families since the 1970s. It will focus on crucial areas of importance to Australian families and ensure that the family law system prioritises the best interests of children, addresses family violence and child abuse, supports families (including those with complex needs) to resolve disputes quickly and safely, while also minimising the financial burden.

Terms of reference

The ALRC received the terms of reference from Attorney-General George Brandis on 27 September 2017:

• there has not been a comprehensive review of the Family Law Act 1975 (Cth) since its commencement in 1976
• the diversity of family structures in contemporary Australia
• the importance of ensuring the Act meets the contemporary needs of families and individuals who need to use the family law system
• the importance of affording dignity and privacy to separating families
• the importance of public understanding and confidence in the family law system
• the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner
• the paramount importance of protecting the needs of the children of separating families
• the pressures, particularly financial pressures, on courts exercising family law jurisdiction
• the jurisdictional overlap of the federal family law system and the state and territory child protection systems and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation are dealt with in the same proceedings
• the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes
• the benefits of engaging appropriately skilled professionals in the family law system.

Scope of the reference:

The ALRC should have regard to:

• the family law system, including on surrogacy, family violence, access to justice, child protection and child support
• interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114.

The ALRC will consider what, if any, legislative amendments should be made to the family law system, the Family Law Act 1975 and other related legislation.

It is expected that the ALRC will conduct consultations with the community, practitioners and experts in family law and family dispute resolution, family relationship and social support services, legal services and health sectors, as well as interested members of the community.

Among the terms of reference, the ALRC has been asked to address whether the family law system is too adversarial in nature, given the high conflict nature of marriage breakups and custody disputes. The alternative, perhaps, is a greater emphasis on mediation.

In an interview with ABC Breakfast, Attorney-General George Brandis said:

It’s always better that disputes be resolved by mediation rather than by litigation, particularly though when they concern intimate relationships, people at a fraught and despairing time of their lives, and of course particularly where the interests of children are concerned.”

President of the Law Council of Australia, Fiona McLeod SC, strongly welcomes the review but cautioned that meaningful and lasting reform will require significant court and legal assistance funding:

The Law Council has long been warning that our family law system is in crisis, primarily due to a lack of funding and resourcing,” Ms McLeod said.

For that reason we welcome this review and especially the selection of the ALRC to oversee it. It is also very pleasing to see the ‘pressures (including, in particular, financial pressures)’ on the courts included in the terms of reference.

While the number and complexity of family law cases has increased sharply in recent years, resourcing has not adequately increased to compensate.

Those on the frontline of our family law system have been sounding the alarms for years. So ‘the appropriate, early and cost-effective resolution of all family law disputes’ is a very appropriate focus of recommendations in this review.

The current lack of resources has meant that families facing the most serious family law issues are waiting for up to three years or more before a final trial.

The Law Council looks forward to contributing to this review, however we note that any significant recommendations for reform will not be able to implemented without corresponding funding.

Of course, properly funding the court system also means properly funding legal assistance services, which are still chronically underfunded according to the Productivity Commission. For this reason we are pleased to see that this review’s scope also includes instructions to consider existing reports relevant to ‘access to justice’,” Ms McLeod said.

Women’s Legal Service Acting Chief, Helen Matthews, also welcomes the review:

We are heartened to see the terms of reference reflect serious issues we see in our work at the family courts – including safety concerns, family violence and protection of vulnerable witnesses. We hope that cost-cuttings do not dominate the review, but rather that access to justice and the safety of women and children in the family law system are prioritised.”

The review will report by 31 March 2019.

Further Information

Subscribe to ALRC inquiry e-news to receive updates from the Review of the Family Law System.

Is community safety too often outweighed by the presumption of innocence for serious repeat offenders in bail decisions? Do bail decision-makers lose sight of the proper balance that needs to be achieved and too readily grant bail, even for repeat serious offenders? Have governments paid sufficient attention to community concerns about repeat offenders committing serious offences while on bail or parole?

These are important questions that go to how safe we feel in our community and how safe we actually are.

You will recall earlier this year Mr Dimitrious Gargasoulas – a serious offender, who was on bail in Victoria – killed several pedestrians in Melbourne’s CBD with his car. Victorians have been assured that they can now feel more secure as the government has tightened the Bail Act 1977 (the Act) and bail processes and is to invest more resources to avoid another Bourke Street Tragedy.

Following a review of the bail system, the Victorian Parliament has amended the Act by passing the Bail Amendment (Stage One) Bill 2017, which was assented to on 27 June 2017.

Overhaul of Victorian bail system

Earlier this year, Victorian Premier Daniel Andrews said a number of proposed reforms would make it harder for people accused of serious crimes to be released on bail as part of a complete overhaul of the state’s current bail system. He also said community safety would be given a much higher priority.

But surely the question still needs to be asked: why did it take the shocking deaths of innocent people before the Victorian government acted to give community safety “a much higher priority” over the interests of serious offenders?

It might seem to most of us that what is being acknowledged here by the Victorian government is that it has allowed, to this point, the courts and bail justices to subjugate community interest in the balancing act of community safety versus a ‘presumption in favour of bail’ (or ‘entitlement’ to bail), which arises out of the presumption of innocence.

It is certainly not an ideal state of affairs when judicial officers and bail justices have to be ‘reminded’, by amendment to the Bail Act 1977, to place a higher priority on community safety when making bail decisions.

Surely, even under the previous legislation, community interest should always have had paramountcy?

However, even with the recent amendments to the Act, bail justices and courts will continue to be free to interpret provisions such as ‘compelling reason’ and ‘exceptional circumstances’ as they see fit.

The ‘reminder’ to bail decision-makers in Victoria’s new legislation to put community interest first is, to say the very least, weak.

These reforms flow from the government’s response to a Bail Review following the Bourke Street attack in January this year which was conducted by the former Director of Public Prosecutions and Supreme Court Justice, Mr Paul Coghlan QC. It considered seven questions, which focused on legislative and practical reforms to manage risk and maximise community safety. Mr Coghlan provided the Victorian government with two separate reports. The first report was released on 3 April 2017. The second report was later released on 1 May 2017, making 37 recommendations in total.

First report

In the first report, Mr Coghlan observed that the provisions of the Bail Act 1977 (‘Bail Act’) are ‘very strict’ and that no major overhaul of the system was required. He noted that a general presumption for bail should operate, subject to the reverse onus and unacceptable risk tests. Mr Coughlan stated that considering the Bourke Street Tragedy:

if bail had been refused then, these offences might not have occurred.”

Key recommendations from the first report include:

· a purposes section in the Bail Act 1977 and guiding principles. This would be to ensure that, in making decisions to grant or refuse bail, they are made in the context of policy considerations, which strike a balance between community safety and the presumption of innocence (Recommendation 1)

· section 4 be tightened, making it harder to grant bail for accused individuals (Recommendation 2)

· the unacceptable risk test be amended, so that bail must be refused in all cases, if the prosecution (police) satisfies the bail decision maker (magistrate) that the accused would endanger the safety or welfare of any person, commit an offence, interfere with witnesses, obstruct the course of justice or fail to appear in court to answer to bail (Recommendation 3)

· the ‘show cause’ test be renamed to ‘show good reason’ (Recommendation 4)

· section 4 of the Bail Act 1977, in applying unacceptable risk, exceptional circumstance, and show good reason tests, the bail decision maker must take into account all the relevant circumstances including but not limited to criminal history, compliance with previous grants of bail and the seriousness and nature of the alleged offence (Recommendation 5)

· any accused charged with a serious offence which is alleged to have been committed while on bail must be refused bail, unless they show good reason for bail to be granted (Recommendation 6)

· offences that place an accused in the exceptional circumstances category or show good reason test be listed in Schedules 1 and 2 of the Bail Act 1977 (Recommendation 8); and offences added to Schedule 1 for the exceptional circumstances test, including aggravated home invasion (Recommendation 9)

· offences added to Schedule 2 regarding the ‘show good reason test’ including manslaughter, child homicide, armed robbery, threats to kill and rape (Recommendation 10)

· bail decisions to be delayed for intoxicated offenders (Recommendation 11)

· only a magistrate or judge may grant bail to an accused in the exceptional circumstances category (Recommendation 14); and

· further review of the role of bail justices be conducted, and pending that review, the retention of the bail justice system (Recommendation 18).

Second report

The second report encompassed other complex matters such as the administrative side of reforms.

Key recommendations from the second report include:

· the Court Integrated Services Program (CISP) receive further resources to allow it to provide more services around the state (Recommendation 27). The CISP provides support to accused persons and access to services and support aimed at reducing reoffending

· The Honorary Justice Office consider specialised training for bail justices on children and youth issues, Aboriginality, family violence, mental illness and cognitive disability, homelessness and substance dependence (Recommendation 28)

· a new Bail & Remand Court be established at the Magistrates’ Court. This would replace the current Night Court and Weekend Court and would sit in two courts, in two shifts from 9am-10pm and would cover the entire state.

· if the new Court is established, all headquarter police stations be equipped with audio visual links to enable swift bail hearings with an accused in custody by the Bail & Remand Court (Recommendation 29)

· once the Bail & Remand Court is fully operational, senior police members would be able to remand accused adults overnight, and bail justices be retained for matters such as out of hours bail applications for children and vulnerable adults (Recommendation 29)

· Bail Act 1977 be comprehensively overhauled and rewritten to enhance its structure, readability and consistency (Recommendation 37)

Victorian government’s response to the Coghlan review

The Victorian government indicated at the time that it would adopt each recommendation in the first report and it appears to have implemented many with the passage of the Bail Amendment (Stage One) Act 2017.

However, further consultation with relevant agencies and community groups on longer-term recommendations outlined in the second report are to be undertaken before any further changes are implemented. It is understood a second Bill will be introduced later this year into the Victorian Parliament, which will address the more complex matters and recommendations of the second Coghlan report. The Premier, Daniel Andrews, said that the recommendations in the second report affected the whole bail system and required careful consideration.

A band-aid solution

Police Association Secretary, Wayne Gatt, welcomed the move towards simpler new laws, while the Victims of Crime Commissioner Greg Davies has said that the proposed reforms were “certainly an improvement.”

However, Opposition Leader Matthew Guy has slammed the proposed changes, saying that they “appear simply cosmetic” and are “too small and too weak.” Mr Guy believes the system needs a cultural overhaul which would elicit fear within offenders.

In our view, while the implementation of Mr Coghlan’s recommendations is a positive step forward, the reforms to this point just seem to be a band-aid solution.

Retention of bail justices and limiting the scope of their role may continue to ease the burden on courts and police but it does also mean that mistakes will inevitably occur. If bail justices are to be retained they should be legally qualified and undertake far more rigorous training before being permitted to make a decision about whether to grant bail.

Serious offenders will no doubt continue to slip between the cracks and the legislative changes will not deter offenders from committing offences whilst on bail.

Conclusion

Not much has been achieved to allay community concerns that the bail system remains heavily skewed in favour of serious offenders. Law reform is never an easy task, but far greater effort and education are needed to strike a proper balance between the ‘entitlement’ to bail and maximising community safety.

Only time will tell if these reforms are anywhere near effective enough to keep Victorians safe.

Further Information

Bail Review reports and the Victorian government’s response are available here.

What do you think? Are the proposed recommended reforms to the bail system sufficient to protect Victorians from serious offenders? Let us know in the comments!

Imagine finding something that has no rightful place in your food while brunching this weekend. A piece of plastic or glass sitting incongruously atop your smashed avo? Or maybe a strand of dirty hair so grotesquely curled around your poached eggs that it triggers an uncontrollable upchuck reflex? Perhaps a worm or spider smugly unfolds itself from your pile of baby spinach mere moments before you bring it to your eager waiting lips.

It sounds like something from a Hamish & Andy skit, but food contamination from bacteria or foreign objects happens more often than you would imagine.

The Federal Department of Health estimates that 4.1 million Australians contract foodborne illnesses with approximately 120 people becoming so violently ill that they die. The cost to the economy has been estimated to be as much as $1.25 billion annually.

So what should you do if you spot a dangerous or foreign item in your restaurant food? Send your plate back to the kitchen? Make a formal complaint to the manager? Report it to your local Food Authority? Sue the restaurant?

Your options depend in large part on your circumstances. Whether you merely found a foreign or dangerous object on your plate or actually consumed it; whether you suffered harm or became physically sick at the time you ate at the restaurant or some time afterwards; as well as whether you can trace the harm or food poisoning to that specific restaurant.

How are food businesses regulated in Australia?

Restaurants, cafes and other food businesses are regulated by Federal and State and Territory legislation. Food safety standards place obligations on Australian food businesses to produce food that is safe and suitable to eat. At the Federal level, food businesses are regulated by Food Standards Australia New Zealand Act 1991, Food Standards Australia New Zealand Regulations 1994 and Imported Food Control Act 1992.

The Australian New Zealand Food Standards Code is enforced by State and Territory governments and the Department of Agriculture for imported food. State and Territory governments develop and administer food legislation which gives effect to the requirements of the Food Standards Code.

Local councils also play a role in food safety and are responsible for ensuring that food businesses comply with food standards.

All these bodies work cooperatively to ensure that food is fit for consumption in Australia and are responsible for investigating when things go foul (so to speak).

Discovering a foreign object in your food

Say a chip of glass, plastic, hair or worm arrives in your breakfast but you are lucky to notice and remove it. No harm was caused to you, so should you let it slide?

Generally, no.

Firstly, don’t eat the food. Let a member of staff know that you found a foreign object in your order. It may come from a bigger batch and could be a sign of a larger contamination which may affect other customers, or have the potential to become a public health issue.

In most circumstances, cafes and restaurants will bring you a fresh plate or issue a refund as a sign of good faith. They may also fill out an incident report.

Secondly, you may wish to report it. Complaints from customers make up a significant portion of how food authorities identify businesses who are in breach of food safety legislation.

Investigation of food complaints is undertaken by State and Territory authorities or your local council.

The Food Standards Code is enforced and implemented in each State and Territory by the relevant bodies.

Generally, your local council or Food Authority are responsible for investigating:

• Food poisoning
• Foreign objects in food
• Misleading or incomplete labelling
• Illegal sales or serving of food
• Incorrect or unhygienic food handling, storage, transport and preparation
• Spoilage of packaged or fresh food
• Unsuitable or unsafe ingredients

What if I accidentally ate a foreign object on my plate?

The more litigious among us might be wondering whether you can sue a restaurant if you find something potentially dangerous, like glass, in your order.

The answer is that simply because you find a foreign object in your food does not mean that you can automatically sue for it. You would need to establish that you suffered harm as a result of the restaurant negligently leaving that object in your food.

According to Dr Karl:

Long skinny splinters of glass would definitely cause problems as it got shoved along your gut – but you would certainly notice it as you chewed your meal. Chunks of jagged glass the size of matchheads would cause bleeding as they rubbed against the soft interior of your gut – but while it was in your mouth, you would have to notice the unexpectedly rough texture of your meal. You would still notice the glass if it were ground as finely as sand (ever had a picnic on a windy day at the beach?). If the glass were ground so finely that you didn’t notice its presence in your mouth, then neither would your gut.”

A customer that was served shards of glass in a McChicken burger at a Chicago McDonalds sued for $600,000. She claimed that biting into the glass caused her “severe and permanent oral injuries as well as great pain and anguish.” 

One of the most famous English cases on this subject is Donoghue v Stevenson (1932) – also known as the

‘snail in the bottle’ case. Mary Donoghue discovered the remains of a decomposed snail in a ginger beer bottle after drinking it and suffered mental shock and severe gastroenteritis. She sued David Stevenson, the manufacturer of the drink for 500 pounds, arguing that the manufacturer owed a duty of care to his consumers both to ensure that no snails entered his bottles and to inspect that the ginger beer bottles were free from contamination between pouring and sealing. The court found that Stevenson had failed in both these duties to his customers. The case paved the way for negligence claims in England and Australia.

Cafe and restaurant owners owe a duty of care to customers. Leaving a potentially dangerous foreign object in your food risks you consuming that object and being injured. By failing to provide safe food, a cafe may have breached its duty of care to you.

A court would likely consider:

• the probability of the risk of harm and how likely the cafe’s act of leaving the foreign object in your meal could injure you
• the seriousness of your injury
• the burden on the café to take precautions and the costs involved to take those precautions.

If you are successful in proving negligence, a court would likely award a sum of damages.

Incidents of food poisoning in Australia

Every year, an estimated 4.1 million Australians experience foodborne illnesses (food poisoning). Common cases of food poisoning are caused by bacteria such as Salmonella, Campylobacter, E.coli and Listeria; viruses such as Norovirus, Rotavirus and Hepatitis A; and intoxication caused by the toxins produced by some bugs such as Staphylococcus aureus, Bacillus cereus and Clostridium perfringens.

Symptoms can range from a slight headache and fever to dehydration, nausea, diarrhoea, vomiting and in some situations result in hospitalisation. In extreme cases, food poisoning can even lead to death.

While the overall rates of food poisoning in Australia are falling, over the last 10 years, incidents of salmonella poisoning have risen.

The number of reported cases has doubled from 6990 in 2003 to 12,836 in 2013. After a Melbourne Cup lunch in Brisbane last year, 220 people became sick and one elderly woman died after eating raw egg mayonnaise that was contaminated with salmonella.

What are your options if you contract food poisoning?

If you become seriously ill as a result of contracting food poisoning from a restaurant, it may be worthwhile seeking legal advice. This is especially important if you have been hospitalised and incur significant medical expenses. It may be the case that a particularly serious bout of food poisoning has caused the death of a family member. In this situation, you may be able to take legal action against the responsible restaurant for wrongful death.

In 2012, for example, the family of a 7-year-old Australian girl who suffered serious salmonella poisoning from a KFC chicken wrap (causing a coma and brain damage) were awarded $8.3 million.

However, the biggest challenge in food poisoning cases is to establish that the food you consumed at the restaurant was not only contaminated but also the same food that caused your illness. This is because many cases of food poisoning take several days to incubate before you start displaying symptoms.

If you wish to pursue action against the restaurant where you believe you contracted food poisoning, seek medical advice as soon as possible after becoming ill to confirm that you have a foodborne pathogen. It would need to be established that your illness has come about as a result of that restaurant’s food preparation or distribution. For example, while being prepared in the kitchen where it has been exposed to unsafe temperatures that have allowed bacteria to breed; unclean handling or has been contaminated by wait staff en route to your table.

If there are many victims of food poisoning, as in the case of Bottle of Milk cafe in Melbourne where over 123 people contracted salmonella from mayonnaise made with free-range eggs, it may be possible to file a class action lawsuit.

A class action against the owners of Copa Brazilian Churrasco restaurant in Canberra saw $1 million paid out to victims of a salmonella outbreak.  77 people became sick after eating potato salad that also contained contaminated mayonnaise, with 15 people hospitalised.

Packaged supermarket goods

Product recalls happen reasonably often in supermarkets.

You probably remember the ‘ready to eat’ salad mix salmonella outbreak and the spate of Hepatitis A cases from Chinese frozen berries. Who could forget last year’s infamous Huntsman spider in the Woolworths salad mix?

If you purchase a contaminated item; find a foreign object; or fall ill as a result of consuming packaged goods from a supermarket, report it to Department of Health and your local council.

When making your report, include:

• your name, address and a contact number
• the brand name, food product name and manufacturer
• the size of the product and package type
• package code and dates
• name, date and location of the store you purchased the product from.

Keep the original packaging and/or the foreign object that was found in the food.

Food Standards Australia recommends that any uneaten portions should be refrigerated, but not eaten. If it is not possible to do so, take a photo of the food as evidence and seek medical advice.

Further Information

• To make a complaint visit Food Standards Australia and New Zealand and its Food Complaints section.
• To keep an eye on the latest food recalls visit: Food Standards Australia New Zealand and Product Safety Australia.
• For more information on the symptoms of food poisoning visit: Food Safety Information Council.

Personal safety is a fundamental human right.

But how safe can we feel when potentially dangerous criminals are wrongly released on bail? The increasing frequency of terrorist-inspired attacks leaves many of us fearing that at any given moment a criminal who should, by most people’s standards, be in jail could be roaming the streets and ready to harm innocent people.

The recent attacks in Stockholm, Sweden and Westminster Bridge, London – where cars were used as weapons to mow down pedestrians – throws into sharp focus our ‘belief’ versus the ‘actuality’ that we all have the right not only to feel safe but also to be safe.

While Victoria’s bail system has been in need of a major shake-up for quite some time, it was the Bourke Street Tragedy in January this year that was the trigger for the Victorian Government to spring into action and announce immediate – if somewhat inadequate – reforms.

Bourke Street tragedy

On 20 January 2017, Dimitrious Gargasoulas had been pursued by police driving a stolen vehicle. Gargasoulas allegedly did burnouts at the Flinders Street intersection before speeding down the Bourke Street precinct where he began deliberately driving into pedestrians. It was not until he had driven towards the end of Bourke Street that he was shot by police. Six people were killed, including a three-month-old baby. Earlier that day, Gargasoulas had stabbed his own brother.

What makes this incident even more appalling is the fact that it was preventable.

Only six days prior to his rampage through the Bourke Street precinct, Gargasoulas had been released on bail. This was granted by an after-hours Bail Justice. Like Man Haron Monis – the person responsible for the Lindt Cafe siege in Sydney in 2014 – Gargasoulas had several prior convictions, including a rape conviction.

Despite police opposition to releasing Dimitrios on bail, the Bail Justice disagreed and released him.

His continued remand in custody would have saved six lives, numerous injuries and incalculable community trauma.

Bail Justices are not equipped to make decisions affecting community safety

Bail Justices have been proven to be grossly ill-equipped to make important decisions impacting community safety. The wrongful release of Dimitrious Gargasoulas is a perfect example.

Disturbingly, Bail Justices are volunteers who possess no legal qualifications. The only requirements are: to be over 18 years of age, to be an Australian citizen, to not insolvent, to complete a Justice of the Peace course and a Bail Justice Training program.

What most members of the public don’t realise is that almost anyone on the street can meet the requirements to become a Bail Justice. Under the Victorian bail system, volunteers with no prior legal experience and minimal training are making critical assessments that impact our day-to-day safety.

Unlike Magistrates who have legal qualifications and many years of legal training and experience in criminal matters, Bail Justices simply do not have the necessary skills and experience required to make critical evaluations about whether to release an accused person on bail.

Magistrates are experienced at making complex risk assessments and making difficult but sound determinations, weighing the full range of factors, that properly inform a correct bail determination. These might include prior convictions, AVO histories and mental health histories. Magistrates understand and appreciate the nuances of the law, that it requires individual analysis and assessment on a case-by-case basis, not only taking into consideration all possible immediate factors but also forecasting the future and possible serious consequences associated with granting bail.

Bail Justices, on the other hand, can be predisposed to operating on the presumption of granting bail in circumstances where they rely mostly on police submissions and what an accused tells them in court, without a full picture of the accused’s background and potential to be a risk to the community. Some commentators have observed that Bail Justices do not fully understand how the Bail Act 1977 operates.

The decision about whether to release someone on bail is an important one with serious implications – it is not an administrative tick and flick situation that can be left to someone with no legal experience.

Another important, but somewhat overlooked, factor influencing the grant of bail is that remand centres and prisons in Victoria are at near capacity, meaning that potentially violent criminals cannot be accommodated and are released back onto the streets.

Blame does not lie with Bail Justices themselves but with a justice system that has negligently placed unqualified volunteers at the centre of decisions that have the potential to seriously compromise community safety.

As we have seen, a system that risks permitting bail to even one accused person, where that person poses a significant risk to public safety (as with the Bourke Street tragedy), in the hands of an unqualified volunteer is a system that is broken.

Need for immediate reform

The Bourke Street Tragedy shone a spotlight on a gaping chasm of deficiencies in the Victorian bail system which dates back to the 1980s.

In response to the incident, Daniel Andrews, Premier of Victoria, immediately announced that a ‘Night Court’ would be established so that qualified Magistrates would hear bail applications for serious and violent offences after hours and over weekends. The Night Court commenced on 27 January.

The Government next announced that there would be a comprehensive review into Victoria’s bail system. The review is being conducted by the Hon Paul Coghlan QC. Mr Coghlan provided his initial advice on legislative reform to the Victorian Government on 3 April 2017.

Any other relevant matters will be reported by 1 May 2017.

The review considered seven specific questions, focussing on legislative and practical reforms “to manage risk and maximise community safety”.

The review’s terms of reference:

• how the necessary balance between protection of the community and the presumption of innocence should be best reflected in section 4 of the Bail Act 1977

• appropriateness of the current tests of exceptional circumstances, show cause and unacceptable risk, and an examination of the offences to which those tests apply

• whether additional offences should be added to the list of offences which place an accused person into the show cause or exceptional circumstances categories

• the way in which other relevant circumstances (for example, a history of prior offending or offences committed while on bail), are considered in assessing whether an accused person should be granted bail

• whether information available for consideration by decision-makers in the bail system is sufficient to properly consider and assess the risks that are posed by accused persons, including those with complex risks, needs and case histories

• the conduct of bail applications out of hours including the role of Bail Justices; and

• whether, in relation to out of hours applications, different rules are required for different types of offences.

Where to from here?

The Bourke Street Tragedy caused a considerable amount of grief, trauma and eroded public confidence in the justice system.

Law reform is never an easy task. It should be conducted in a way that addresses community expectations with speed, diligence and skill to achieve justice and, most importantly, to ensure public safety. People expect that governments will protect them. Since the Bourke Street tragedy, many Australians have questioned “how could something as shocking as this happen in broad daylight in Melbourne’s CBD?” It is, therefore, critical that community protection and victim protection align with community expectations.

The introduction of a Night Court is nowhere near a complete solution to reforming the Victorian bail system, but it is a step forward. Any changes should require bail decisions to always take account of and reflect the paramountcy of community safety.

If this means that serious offenders’ or recidivist offenders’ rights are subjugated to those of innocent members of the community, few Australians would protest this outcome.

In the light of national security issues, it is also important that the presumption towards bail is reversed, especially where the judicial system has proven itself to be deficient in its ability to remove serious threats to public safety in the streets.

Currently, no apparent scrutiny or accountability exists for the outcomes of decisions made by magistrates or Bail Justices, even where those decisions cause a serious threat to the community, allow an accused person to re-offend, harm others or cause death.

Urgent implementation of Justice Coghlan’s recommendations for legislative change is required before another serious offender is released on bail and is given the freedom and opportunity to commit another serious crime.

Further Information

For a BucketOrange breakdown of how the current Victorian bail system operates, click here.

What do you think? Should Bail Justices be in a position to make important decisions that influence community safety? Let us know in the comments!

Gen Y. We are the generation that doesn’t settle, who love to travel and are all about finding and pursuing our passion.

Switching careers, starting a business, studying, and travelling the globe are what we value most and prioritise. We choose to spend our money living in the moment and accumulating experiences, rather than planning for the future. As a result, maintaining our financial security or having solid investments like a house, a car, shares or savings can often pale in comparison to our immediate ambitions.

But dedicating a few thoughts to your financial situation is not as scary as it seems. There are multiple ways to become more financially grounded, without spending all of your spare time drowning in spreadsheets or sacrificing nights out with friends.

Superannuation

Most of us would rather hit ourselves in the face with a giant red ball than think about superannuation.

The letters come in the mail on an infuriatingly regular basis informing you of changes to your account balance. If you have changed jobs more than once, it’s also likely that you have multiple accounts with different funds and with differing balances.

If you are with more than one super fund, now is the time to merge all that money into one fund. By consolidating, or rolling over your super, you are avoiding unnecessary fees from multiple funds, and are in a better position to track how your super is growing.

To consolidate your accounts, use the ATO’s handy SuperSeeker tool to search for any lost or unclaimed super. AusFund is another way to track down unclaimed super. If you are on a break from the workforce and not receiving contributions, or planning to be overseas for an extended period, AusFund is also a great place to park your superannuation.

If you are unsure about which fund to choose, CanStar compare and rate the best super funds including options, services, and performance based on your age bracket and super balance. Industry Super and ASIC Money Smart are also good places to start.

While your employer contributes an amount from your salary towards your super, making additional contributions (for example, an extra $20 per week) can quickly accumulate and really pay off in the long run.

The government also makes co-contributions from time to time to help save for your retirement. This scheme applies to low and middle-income earners who make personal contributions to superannuation. In this situation, the government contributes up to $500 per year. The amount the government contributes to your super fund depends on how much you contribute and your annual income.

Budgeting And Saving

Budgeting and saving are a lot like the administrative component of your study life or job – painful but necessary.

Saving is a trial for everyone. The voice in your head relentlessly pesters you “I need to save for a house…no wait…a car…. no…a holiday.” This creates conflicting priorities and means that the easiest option is usually just to continue with your original spending habits.

Setting a budget and savings goal is essential to acquiring important assets, having the freedom to do what you want with your life, and is also crucial for emergency situations. The best way to get started is to set a weekly, monthly or yearly goal. You may want to save 75% of your pay packet after expenses like rent, utilities, petrol and social activities. Or you may commit $100 per week to your savings account. Another highly effective method of saving is to dig out your good old piggy bank. Even if you’re just collecting some loose change, it all adds up!

Save a lot, quickly

One of the best ways to save a lot quickly is to commit to paying off your monthly expenses and splitting the remaining amount in half (one-half for everyday expenses like sales, petrol, transport, lunches and drinks; the second-half for your savings account). It does mean paring back your monthly ‘unconscious’ spending on ‘want’ rather than ‘need’ items but in the long run can get you on the next adventure holiday months sooner and without needing to go into serious credit.

Say you have approximately $500 left over each pay day after expenses. If you set up an automatic transfer of $250 to a high-interest savings account, you will be making regular and consistent savings of $500 per month (assuming you are paid on a fortnightly basis) which adds up to $6,000 per year.

Save a moderate amount, consistently

If you are not in a position to save a large lump sum every month, make sure that you set a realistic saving goal and stick with it. No matter what your salary, you can aim to save 10% of that fortnightly income. Once it is in your savings account, make a rule not to touch it unless it is for emergencies.

Investments

You may feel like you have no idea what you are doing with your money, but it really is never too early to start investing, whether in the property market or some low-risk shares.

https://www.youtube.com/watch?v=ugB8uvh1heI

Consider making an appointment with a financial adviser to explore options based on your income and circumstances and for guidance on how to start saving for a deposit on a house or apartment.

If the prospect of investing in stocks and shares makes you jumpy, consider an alternative and lower risk option and set up a managed fund.

With time and patience, any goal is achievable.

Conclusion

Achieving financial stability in your 20s and 30s takes time, patience and dedication. If you regularly evaluate the above areas, it eventually becomes easier to manage and you will start to see real rewards for your efforts.

Further Information

Feeling overwhelmed?

The Australian Securities and Investments Commission (ASIC) has a handy ‘Money Health Check’ Quiz to help track your overall financial health.