In the March issue of BucketOrange Magazine, we chat with Nicola Martin and Chiara Rawlins from McCabe Curwood Lawyers in Sydney to answer some of the internet’s most frequently asked questions for small business owners and employers in the midst of the COVID-19 crisis.

What general obligations do business owners have to staff during the crisis? 

“At all times, employers owe an overarching obligation to ensure, so far as is reasonably practicable, the health and safety of all its workers, including volunteers, and a duty to ensure the health and safety of other persons is not put at risk from work carried out.  This requirement arises from section 19 of the Work Health and Safety Act 2011 (WHS Act), and includes an obligation for employers to identify risks at the workplace, and take whatever reasonably practicable steps to eliminate those risks.  In circumstances where it is not practicable to eliminate a risk, employers must take steps to minimise the risk.

Despite the unprecedented circumstances arising from the current coronavirus pandemic, it is important to remember that an employer continues to owe these general work health and safety obligations to its workers.”

Does an employer have a specific obligation to protect staff from coronavirus?

“As set out above, section 19 of the WHS Act imposes a general obligation upon employers to ensure the health and safety of its workers, so far as reasonably practicable.

To meet these obligations during the coronavirus pandemic, it is necessary for employers to adopt strategies to minimise the risk of employees being infected by coronavirus in the course of their work. 

What control measures are implemented will largely depend upon the specific circumstances of your workplace, and what work is being carried out.  However, it is generally recommended that steps such as the following should be taken across all workplaces:

• Actively monitoring news and government sources for updated recommendations and restrictions
• Ensuring employees are aware of the symptoms of coronavirus, as well as how and when to take leave
• Require employees to practice good hygiene, including frequent hand washing and limiting contact with others
• Updating control measures as and when necessary – the situation globally is moving quickly, and employers need to ensure they remain agile in developing and updating control measures

Employers should also ensure that any decisions made in response to the pandemic are not considered discriminatory for a prohibitive reason, with health and safety laws providing offences for engaging in such conduct.”

What are employer obligations to provide a safe workplace for all staff, particularly those who are immunocompromised? Is there a greater obligation owed to vulnerable members of staff?

“If an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or has a chronic medical condition, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee. 

For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

Is an employer liable if an employee contracts coronavirus while at work? 

“If the exposure to COVID-19 occurred in the work environment the work exposure was a significant contributing factor to the COVID-19 diagnosis then an employee may be entitled to workers compensation (which is leave, which is paid under a workers compensation insurance policy). 

Given exposure to coronavirus can occur anywhere, and particularly as Australia sees an increase in the number of cases, it may be difficult to, in fact, establish that the exposure occurred in the work environment and that employment was a significant contributing factor. Note that workers compensation laws vary from State to State and Territory to Territory. An employer could potentially be liable under WHS laws if an employee contracted coronavirus in the work environment because the employer did not take reasonably practicable steps to eliminate or reduce the risks over which the employer had control or influence.”

Can an employer force staff to take leave?

“Generally, an employer cannot force an employee to take leave, however, there are some exceptions. Under the Fair Work Act 2009, an employer can direct an employee to take annual leave if it is reasonable in all the circumstances.

Examples of this are when a workplace is having a shutdown (usually over the festive period but it does not have to be just at this time) or when an employee has ‘excessive leave’. Employees who are covered by Modern Award and Enterprise Agreements may have specific provisions relating to these issues. For example, in some Modern Awards there is the requirement for employers to provide employees with a minimum of 4 weeks of notice for any shutdown.  

For long service leave, the ability of an employer to direct employees to take long service leave depends on the relevant State or Territory long service leave jurisdiction. In NSW an employer can direct an employee to take long service leave once the employee has over 10 years of service on the provision of 1 month’s notice.

An employer may also ask employees to take annual or long service leave in an effort to reduce costs as a measure to avoid job losses. In this type of situation it is up to the employee whether they agree to take the leave or not.”

What leave entitlements are employers obligated to pay staff in these circumstances?

“If an employee has contracted the virus, or is caring for a family member who has contracted the virus, the employee will be able to access their paid personal/carer’s leave. If the employee has exhausted all paid personal/carer’s leave, an employer could agree with the employee that they could utilise any other kind of paid accrued leave.

There remains the question of whether employees would be able to access their personal leave if they have exhausted their accrued annual leave and long service leave and are unable to attend work. Typically employees are not entitled to use personal/carer’s leave if they are not unwell or caring for a family member, however, some employers are allowing employees in this situation to access their personal given the unprecedented circumstances.

As noted above, if an employee is in self-isolation because of a government directive, but is not actually unwell, they would be able to access their annual leave during their period of absence from work.

However, if an employee is directed to stay at home by their employer as a precautionary measure, yet they are ready, willing and able to work, the employee should be paid their ordinary wages for their ordinary hours of work.

That being said, employers should explore whether the employee would be able to work from home in the first instance.”

Can employer prevent staff from travelling?

“Employers should be following Government guidelines when determining whether their staff should be permitted to travel. Most employers should be directing their employees to not undertake business-related travel to mitigate the risk of their employees contracting the coronavirus. 

With respect to preventing staff from taking personal travel, this could be considered a lawful, reasonable direction if the employer has concerns about their WHS obligations. In any case, the employee should be notifying the employer of any travel plans (even domestic ones) before taking any leave. 

We are seeing States closing their borders and international travel extremely restricted. On this basis employers issuing a direction that is in-keeping with the guidelines regarding social distancing and non-essential travel would be acting reasonably.”

Can an employer direct staff to work from home?

“Yes, in the circumstances this would likely be considered a lawful reasonable direction and it may well be unreasonable to require employees to attend a workplace if they could otherwise perform their role effectively from home.

However, employers should note that their WHS obligations still apply even when employees are working remotely. Employers should consider sending out working-from-home guidelines to employees (which, in effect, act as a shortened risk-assessment of the home work environment) so employees are aware of their own responsibilities to set up safe work practices at home.”

Can an employer direct staff to come to work? What if that person is immunocompromised, or lives with someone who is vulnerable?

“Potentially, but there is no one-size fits all answer. It very much depends on the circumstances. The situation is changing daily.

Unless there is a Government direction for us to remain away from work, not travel (unless essential) or to isolate or quarantine, it may be a lawful and reasonable direction to attend work.  

It will depend on a range of factors but the overarching duty for the employer is to take all steps reasonably practicable to eliminate, or if the risk cannot be eliminated, to reduce any risk.

Relevant considerations will be:

• Can the employee work from home?
• Why does the employer require the employee to attend the office?
• Does the employee work in essential services?

If the employee is immunocompromised, or lives with someone who is vulnerable, then an employer will likely need to adjust any general directions made to its workforce for these individuals.

As noted above, if an employer is aware of a medical condition that may place an employee at greater risk of contracting coronavirus or otherwise at risk of severe complications from coronavirus, such as if the employee is immunocompromised or lives with someone who is vulnerable, the employer will have a general obligation to provide a safe workplace to that staff member. 

Once an employer is on notice of any underlying condition, this underlying condition must be taken into consideration when giving directions or instructions to that particular employee.  For example, if an employee notifies their employer that they are immunocompromised, it may be best practice to allow them to work from home where possible in order to minimise any risk associated with performing work in the office during the pandemic.

In order to ensure that the employer’s expectations and directions to the employee are appropriate in the circumstances, it would be reasonable for an employer to request an employee to provide medical evidence of any underlying condition or medication that may place the employee in the “at risk group”.

If a staff member is being tested for coronavirus, should that person stay home until they receive their result, even if they feel otherwise well?

“Yes, an employee who has been tested for COVID-19 must self-isolate until the test results are known. Only if the test is negative will an employee be able to return to work.”

If a staff member tests positive for coronavirus, what are the employer obligations?  

“The employee must self-isolate for 14 days and cannot attend work during that period even if they are only displaying mild or even no symptoms.

An employer continues to owe WHS obligations to the employee and should do what they can to support the employee. The employer should allow the employee (if they are a permanent employee) to access their personal (sick) leave, assuming the employee has accrued paid personal leave and has provided appropriate medical evidence substantiating the absence.

If no paid personal leave is available, the employer should offer the employee the ability to use any annual leave or long service leave available. An employer may even consider offering some other type of paid special or isolation leave although not legally obliged to.”

What is ‘force majeure’ and can how can it affect small businesses?

“The expression “force majeure” refers to an event that was not contemplated by the parties when they entered the contract. A force majeure clause in a contract generally excuses “innocent parties” from performing their contractual obligations because a contractually defined event prohibits or thwarts contractual performance. Force majeure events that are commonly included in contracts include “acts of God” (extreme natural occurrences such as floods, tsunamis and earthquakes), strikes, riots, and acts of war.

Whether COVID-19 constitutes a force majeure event, thus entitling a small business to be excused from performing its obligations under a contract, will depend upon the specific wording of the relevant clause. The small business would also need to establish a causal connection between the emergence of COVID-19 and its ability to perform under the contract.”

Can the government force a business to close? 

“Yes, these powers exist at both a state and national government level.

In New South Wales, the Health Minister has powers under the Public Wellbeing Act 2010 (NSW) to put in place an order that businesses either operate in a restricted manner, or close entirely. At the federal level, similar powers exist under the Biosecurity Act 2015 (Cth), allowing the government to restrict all operation of businesses within a defined area (called ‘human health response zones’).”

Can the government force a business to stay open?

“As a matter of general principle yes, however, the relevant government powers are less specific than for business closures.

Under the Biosecurity Act 2015 (Cth) the Federal Health Minister has an extremely broad power, during a human biosecurity emergency period, to determine any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of a human disease in Australian territory. This would include a requirement to keep businesses open or ensuring businesses continue to operate “as normal”.

More specifically, for pharmaceutical or medical products businesses, there are provisions in the Therapeutic Goods Act 1989 (Cth) which operate to ensure stock levels and supply of products related to current health emergencies such as COVID-19. These provisions could be used to force businesses to stay open to guarantee this supply.”

What are the penalties for failing to comply with a government direction under the Biosecurity Act 2015? 

“There are various penalties within the Biosecurity Act 2015 (Cth) which depend on what sort of government direction is violated.

If the direction relates to disclosures or restrictions on entering Australia – the fine is currently $6,300.

If the direction relates to a behaviour or practice – such as mandated decontamination – the fine is currently $25,200.

If the direction established a human health response zone and required a businesses to close – the fine is currently $6,300.”

About the authors

Nicola Martin is a Principal at McCabe Curwood lawyers. She is a highly experienced employment lawyer and is experienced in representing clients in the Fair Work Commission, State Industrial Relations Commission, Federal Circuit Court and Federal Court as well as conducting mediations and conciliations. She has a particular interest in anti-discrimination and harassment issues.

Chiara Rawlins is a Principal in McCabe Curwood’s litigation and dispute resolution group. Her expertise covers commercial and general litigation and dispute resolution across a broad range of industries. Chiara has acted for major manufacturers, property developers, financial institutions, engineering companies and medium to large Australian and international businesses across a variety of practice areas. Chiara prides herself on working with her clients to achieve solutions tailored to their business and commercial needs.

Lawyering: it’s a physical and psychological scrimmage.

Official advice focuses on workplace best practice guidelines. Pace yourself, take regular work breaks, get enough food, sleep, and exercise. But the reality is that law life is a combat zone – you do what you can in the time that you have and in the circumstances that you find yourself in.

Often this means sacrificing food, sleep, and personal needs, not to mention pulling all-nighters right before exams or that major work deadline. Hurl.

While toiling under extreme work or study conditions is not something we endorse, if you must do it then make sure you’re doing it right.

According to a study of children and teenagers following major surgery, music was capable of reducing physical pain. The effects were even more pronounced where children chose their own music.

Dr Lynn Webster from the American Academy of Pain Medicine says music:

Can generate not only a focus and reduction in anxiety, but it can induce a feeling of euphoria.”

In another study, two daily sessions of music relieved chronic pain symptoms related to conditions such fibromyalgia, inflammatory disease, or neurological conditions as well as anxiety and depression linked to chronic pain.

So if you find yourself in worlds of work or study hurt, here are our picks of the best tracks to ease your legally burdened mind.

Think we’ve missed any classic legally-themed songs? Let us know in the comments!

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The art of thinking like a lawyer.

It’s a form of swift reasoning, cool logic, effortless problem-solving skills and precision analysis that many non-lawyers wished they possessed in heated exchanges between partners, friends or colleagues. It’s the kind of calculated mental weaponry that shields you from unhelpful, inflammatory emotions while actively disarming your opponent with one slash of your sharp verbal blade.

Sounds enviable, right?

Here’s the good part: the ability to use legal reasoning in everyday life is not a skill confined to the legal profession. Like learning a new language, thinking like a lawyer is a technique that can be developed with time, patience, practice, and a willingness to sometimes sound pretentious.

Time to get brain training.

Step 1: Become a word merchant

Lawyers are inherently competitive. They enjoy peppering everyday conversations with big words and thinly veiled insults.

It’s a strategy used to spice things up with colleagues during casual office banter and to gain an unfair advantage in everyday communications with family members or friends.

How to think like a lawyer

If you want to persuade people with your silver-tongued trial lawyer rhetoric, then you need to brush up on your grammar and vocabulary.

Invest some time thumbing through the thesaurus or dictionary and craft a ready-to-go bank of insults you can draw on in a pinch.

Step 2: Forecast the future and scenario plan

Thinking like a lawyer means preparation, planning and predicting (insofar as possible) the future. This means doing risk assessments before making a big decision, considering all your options, and planning for all possible potentialities.

Like a game of chess, it’s a form of deliberate and methodical thinking that factors in the motivations, agendas and likely next move of your opponent. This habit of thinking before acting is part of the reason why lawyers are often considered to be wholly risk-averse.

The upshot of developing this style of thinking, however, is that you will rarely be surprised by unforeseen negative outcomes of your decisions in personal or professional contexts.

How to think like a lawyer

Before taking a course of action, spend some quiet time considering what could potentially go right and what could possibly wrong as well as what the negative or positive consequences might be.

Try to minimise the number of impulse decisions you make and always have a solid backup plan.

Step 3: Develop analytical and problem-solving skills

Analytical skills are central to the way lawyers solve problems and evaluate issues.

Analytical thinking allows you to visualise, articulate, conceptualise and solve simple and complex problems by making educated decisions and taking calculated risks given available information.

Think like a lawyer

Lawyers are able to pick out salient points from any given problem.

Try not to get bogged down in irrelevant details but focus on the most relevant and critical information. Lawyers analyse the issue and look for the material facts, and evidence that supports those facts. They then look for what conclusions they can draw from known facts, justified with sound reasons.

Step 4: Remain objective

Lawyers are masters at removing emotion from everyday interactions.

Submitting to your feelings leaves you vulnerable, clouds judgement and prevents you from making the best decision in the circumstances.

The ability to tease the emotion out of every situation, including inflamed personal conflicts, is one of the many reasons why lawyers are often described as robotic a-holes.

Think like a lawyer

In any escalating confrontation, stop and take a beat.

Taking your time to respond is a strategy lawyers use to drive their opponents crazy! Use this time to remove yourself emotionally from the immediate drama of the situation. Lawyers don’t allow themselves to be drawn in by cheap insults and other schoolyard tactics, although many will engage in it themselves.

Stay calm and put yourself in your opponent’s shoes. What is the meaning behind their words and actions? This requires a degree of emotional intelligence that, if used correctly, can diffuse any situation.

At the end of the day

Lawyers are just people who have been trained in problem-solving techniques and effective communication.

The ability to think like a lawyer simply means developing your lawyer lips, engaging in verbal sparring in appropriate circumstances, moderating emotion and other subjective influences from everyday scenarios, and always applying critical reasoning, logic and sound judgement.

What lawyerly strategies do you use day-to-day? Let us know in the comments!

More on BucketOrange Magazine

Laws Of Conversation: How To Argue Like A Lawyer

Laws Of Conversation: How To Argue Like A Lawyer (Vol. 2)

Bouncers and security guards are a common sight in every city in Australia, particularly if you are out on busy Friday and Saturday nights.

While bouncers and security guards are employed by pubs and clubs to ensure the safety of patrons, do they have powers to remove you from a venue and, if so, how far do these powers extend?

Police and security guards are two very different things

While you are out and about this long weekend, bear in mind that bouncers and security guards at nightclubs, pubs, festivals and supermarkets are not police and they do not have the same powers of arrest, search or detainment as the police do.

Security guards or bouncers working in private premises are employed by owners to protect customers, staff and property and to ensure that conditions of entry are met. The presence of bouncers is to promote an environment of safety for all persons enjoying the venue.

Bouncers and security guards cannot request your personal information, such as your name, phone number or address. They also may not search you without your permission. 

They can, however, request your ID to determine your age if, for example, a condition of entry is that you are over 18 years of age.

Can they kick me out of a venue?

Much like your own home, privately-owned venues have a legal right to remove you if you fail to follow conditions of entry. If you do not leave, you may be trespassing.

Security guards and bouncers may use reasonable force to eject you from a venue and to control a situation that is escalating. Their use of force, however, must be reasonable in the circumstances and must stop once you are removed from the premises. They may, for example, place their hands on your shoulders to guide you out a venue, but they may not assault, shove, or punch you.

A bouncer also cannot use reasonable force to remove you if they are not within, or immediately outside, the venue or if they are off duty.

Can they detain or arrest me?

Security guards have the same powers of arrest and detainment as an ordinary person.

If you have assaulted someone or caused damage to property, bouncers or security guards may make a ‘citizen’s arrest’ and detain you until police arrive.

The powers that bouncers have to detain you under a ‘citizen’s arrest’ are the same that every Australian has to detain someone they believe on reasonable grounds to be committing or to have just committed an offence.

In Victoria, a citizen’s arrest is defined under the Crimes Act 1958 and provides that a person can arrest someone to ensure they appear before court, to preserve public order, to prevent another offence or for the safety of others.

Reasonable force may be used so long as that force is not disproportionate to the crime. The offender must be taken straight to police or a court of law. Similar laws exist in other states and federally.

What if they just don’t like the “look” of me?

Bouncers have the right to refuse you entry according to the venue’s conditions of entry. If you appear too intoxicated, this is one situation in which you may rightly be refused entry.

Anti-discrimination legislation also applies to clubs, pubs, restaurants and other such premises in the provision of goods, services and facilities.

State and territory anti-discrimination laws, as well as national legislation, provide that you cannot be discriminated against or refused entry on the basis of your race, gender, age, sexual orientation or disability.

The Australian Human Rights Commission can hear and investigate complaints regarding discrimination, harassment and bullying.

What if I am assaulted or verbally abused by a bouncer?

If a security guard or bouncer has physically, verbally or sexually assaulted you, there are steps you can take to report it or to make a complaint.

• Record the bouncer’s name and ID number
• Record the names and contact details of any witnesses.
• Go to the hospital to get your injuries assessed, and to have the injuries recorded by a medical professional for evidence. If you are able, take photos of your injuries.
• Report the assault to police.
• If you were intimidated or experienced verbal abuse or threats, you can complain to the venue and to the relevant Licensing Authority.
• If you, or someone you know, has been sexually harassed or assaulted by a bouncer or security guard, record that bouncer’s name and ID number. You can use this information to make a complaint to their employer and to the relevant Licensing Authority.

You may also wish to seek legal advice from a Community Legal Centre or Legal Aid in your state or territory.

*this article is based on Victorian legislation. 

Picture this.

It’s 11 PM on a Monday night and you’re headed to McDonald’s for a late night study snack. Just when you are about to cross the road the pedestrian light turns red, and a single car passes through the traffic lights.

With no other vehicles on the road, you decide to cross on a red light. Little did you know that this single act could land you on the receiving end of a not insignificant fine.

In recent years, police crackdowns on “jaywalking” in high-risk areas have seen thousands of pedestrians in Sydney and Melbourne CBDs receive up to a $70 on-the-spot fine. The aim has been to reduce the incidence of pedestrian deaths and injuries.

So what does, and does not, constitute a pedestrian offence in Australia?

‘Jaywalking’ and the law

There is no specific “jaywalking” offence in Australia. It is more commonly used as a colloquial term to describe pedestrian offences for crossing the road illegally in each state and territory.

Pedestrian rules are aimed at reducing your risk of injury and the risk of injury to other road users.

Pedestrian laws vary depending on the state or territory and any related fines also vary by council area.

These rules are not strictly enforced, especially when compared with speeding fines and red light cameras. Generally, for a pedestrian to receive a traffic infraction you will have to be clearly disregarding road rules and recklessly placing yourself or drivers in danger.

What pedestrian behaviour may attract a fine?

Some of the most common “jaywalking” offences in Australia include:

• Pedestrians who cross the road by ignoring red pedestrian lights, particularly in cities such as the ACT and Melbourne where light rail vehicles pose an increased risk to pedestrian safety
• Crossing the road diagonally where you aren’t permitted to do so
• Crossing the road on a green light
• Not using a zebra crossing within 20 metres of your location
• Walking in the middle of a breakdown lane

If there are no pedestrian signs, signals, lights or crossings, you must take the shortest and safest route across the road.

Interestingly, it is not an offence to use a mobile phone, listen to music or text while crossing a road unless police can prove that you caused a traffic hazard or obstructed a pedestrian or driver.

Keep walking

Like other road rules, the purpose of pedestrian laws is to ensure public safety.

So the next time you decide to make a quick dash across the road while running late for work, think about the impact of your actions on your own safety, the safety of other road users … and your wallet!

On 1 December 2017, the Motor Accidents Injuries Bill 2017 (NSW) came into effect. This bill supersedes the compulsory third party motor accidents scheme under the Motor Accidents Compensation Act 1999 and changes the ways in which injured parties are compensated for motor accidents.

There are two major changes introduced by the new Bill.

Statutory benefits now available to any injured party

The first major change is that statutory benefits are now available to any injured party involved in an accident, regardless of who is at fault. Statutory benefits may cover wage loss, medical treatment and funeral expenses. Previously entitlements were mostly dependent on who was at fault and primarily covered the injured parties who weren’t at fault.

Exclusions do apply, however, for example, in cases where the at-fault driver’s vehicle is uninsured, or the injured person commits a serious driving offence, or workers’ compensation is payable instead, or if the injured person is residing outside Australia (in some circumstances).

What types of statutory benefits can you claim?

There are very particular rules around the types of statutory benefits you can claim, as well as the length of time you are entitled to receive them. For example, to claim for loss of earnings, you first need to meet specific employment criteria to qualify as an “earner”. Your entitlement is then calculated as a percentage of the difference between your weekly earnings prior to the accident, and your weekly earnings after the accident.

There are also different entitlement periods that impact on the amount you will receive, depending on factors such as your level of incapacity and ability to work, how serious your injuries are and whether you were at fault in causing the accident or were contributorily negligent.

Claiming damages as compensation for losses due to injuries

The second major change to the motor accident laws is a reduction in what you can claim damages for if another person was at fault, or if it was a blameless accident which may have occurred as a result of a driver suffering a medical emergency, or an unexplained mechanical failure, for example.

“Damages” is a sum of money claimed as compensation for losses arising from injuries sustained in an accident. You can claim for economic loss – the financial loss suffered because of injuries sustained in the accident – and for non-economic loss, which is an amount of money to represent the pain, disability, loss of enjoyment of life, disfigurement or associated circumstances suffered because of your injuries.

Importance of adhering to timeframes when making claims

Claims can be made for either statutory benefits or damages, or both, but they must be lodged separately. There are important timeframes that must be adhered to for both types of claims.

For statutory benefits, there are verification requirements – such as notifying the police of the accident within a specified timeframe – and lodging a “notice of claim” with the relevant insurer.

Ideally, the claim should be submitted to the relevant insurer within 28 days of the accident, although you can submit up to three months after the accident. If you lodged after three months, you have to meet certain criteria and have a good reason why the claim was lodged late.

Giving notice of the claim to the insurer when claiming damages

When claiming damages, you first need to give notice of the claim to the insurer, separately to your claim for statutory benefits. The timelines for damages are also very specific. You need to wait 20 months from the date of the accident before you are able to claim for damages, unless the claim is for the death of a person, or your whole person impairment is greater than 10%. The claim can also not be settled until two years after the accident unless one of the two exceptions noted previously is met.

Further, the damages claim must be made within three years of the date of the accident. Claiming outside of that period will mean having to provide a full and satisfactory explanation for the delay, and may mean losing the right to claim altogether.

After the claim has been made for damages and as soon as practicable, you should submit “relevant particulars”, which detail the accident, the nature of injuries and disabilities, and the details of all losses. This may include, for example, an accident report (referred to as an “Event Report” by police), an injury report, and record of economic and non-economic losses.

What happens if you disagree with the insurer’s offer?

If you disagree with the insurer’s offer, the first step is to try to resolve it with the insurer. In the case of statutory benefits, you may request an internal review, which the insurer must conduct within 14 days. If you are unable to resolve the dispute with the insurer, you can refer the matter to the Dispute Resolution Service for claims for both statutory benefits and damages.

In the case of damages, you may be exempt from this step if, for example, the insurer wholly disputes liability for your claim. Regardless of whether you are taking the matter to the Dispute Resolution Service, or going directly to court proceedings, it is imperative that you seek legal advice at this time.

Information to be gathered at the scene of an accident

If you are involved in a motor vehicle accident, no matter how minor, you should ensure you collect the contact details of the other driver(s) involved, including their insurer, as well as witness contact details.

It is important to record vehicle details, such as the make, model, colour and licence plate of the vehicle, and details of the accident itself, including the time and date and the exact location. If possible, take photos of the accident and vehicle damage. Ensuring these details are captured from the outset will make compiling claims at a later date significantly easier, and the chances of making a successful claim higher.

Further Information

More details about changes to the law can be found here: Changes to NSW motor accident laws – your definitive guide.

The world is still reeling from the shocking Harvey Weinstein revelations, together with the string of accusations levelled at prominent Hollywood celebrities, not to mention the vile allegations that have emerged about Don Burke and his pathological harassment of women. These horrific accounts have brought dialogue around sexual assault and harassment to the covers of newspapers, social media and workplaces around the world.

The overwhelming reaction from women and men who have responded with their own stories of assault and harassment with the hashtag #metoo on social media has brought the pervasive and far-reaching nature of this problem in our society, our workplaces and our homes, to the fore.

All of this comes mere months after the Australian Human Rights Commission handed down its report into sexual assault and harassment at Australian universities.

What did the report find?

The report found that 51% of students were sexually harassed in 2016, and 6.9% of students were sexually assaulted. Prior to the #metoo movement, this may have been surprising but now the statistics perhaps merely prove what many already knew.

This is the first report that has surveyed incidents of assault and harassment in a university setting. The survey of 30,000 individuals found that 21% students were sexually harassed and 94% did not report it. 1.6% of students were sexually assaulted and, perhaps most shocking, 87% of those victims did not make a report. The reasons for not reporting are disheartening to read. 40% did not believe that the assault was serious enough, while 62% did not know where to go for help.

The results may be shocking for some but, for others, it merely reinforces the problem of “rape culture” that exists on many university campuses across the country.

Sexual violence culture on campuses

Aired on the ABC earlier this year, the documentary, “The Hunting Ground,” deals with sexual assault at American universities. At the time, the documentary shocked audiences by shining a light on the widespread problem of sexual assault on campuses. However, given that Australian universities do not have fraternities it was easy for Australians to regard the problem as uniquely American. 

There has, however, been evidence of a similar culture of sexual violence, sexual assault and sexual harassment at Australian universities for some time. St Paul’s College, an all-male residential hall at the University of Sydney has been plagued by reports of “slut-shaming” and last year refused to participate in an university-wide cultural review led by the Elizabeth Broderick, former Sex Discrimination Commissioner.

The University of Melbourne has also been in the spotlight last year for a Facebook page that ranked “hot” students and encouraged the non-consensual sharing of images taken of students on campus.

Universities Australia, a group representing 39 universities, approached the Australian Human Rights Commission last year and asked them to conduct the survey. It is part of the “Respect Now Always” campaign that aims to raise awareness and gather statistics around sexual assault and harassment at universities.

What is ‘rape culture?’

What is often described as “rape culture” is the attitudes and behaviours of society that normalise sexual assault and harassment. In 2013, the National Community Attitudes Towards Violence Against Women Survey (NCAS), supported by the Australian government, surveyed young people aged 16-24 – the age bracket most likely to be attending university.

The survey found that 39% of participants believed that women who say they were raped led the man on and then had regrets, while 20% of survey participants believed that women often say ‘no’ when they mean ‘yes.’

In 2016, research conducted by OurWatch, an organisation that advocates for ending violence against women found similar attitudes prevalent among young people. 25% of those aged between 12-20 years of age considered that a boy putting pressure on a girl to engage in sexual acts was ‘normal.’

Numerous other reports over the last 10 years have reached comparable conclusions. Similar attitudes were reported in the Change the Course survey. Among these attitudes are that sexual assault and harassment are ‘normal’ at university, that men are entitled to expect sex from women, and that women make false reports of sexual assault and harassment.

Such destructive and ill-informed ideas have arguably contributed to the prevalence of victims being demonised, blamed or held equally responsible for ‘asking for it’ or allowing themselves to be in a situation where sexual assault or sexual violence have occurred.

This perhaps goes some way towards explaining the statistics coming out of the Change the Course report; severe underreporting and a perception from victims that the assault or harassment was not ‘serious enough’ to report.

How can we fix this?

Following the results of Change the Course survey, Universities Australia released a 10 Point Action Plan as an initial response to initiatives already in place, and to address the recommendations into the future.

A number of solid recommendations for Australian universities came out of the Change the Course report including that:

• Vice-Chancellors take direct responsibility for the implementation of the recommendations
• Universities develop a plan for addressing the drivers of sexual assault and sexual harassment that provides students and staff with education programs and identifies existing resources and communications that can reinforce the message of education programs
• Universities ensure students and staff know about support services and reporting processes for sexual assault or sexual harassment
• Within a year of the report, universities engage an independent, expert-led review of existing university policies and response pathways
• Universities conduct an assessment to identify staff and student representatives that are most likely to receive disclosures of sexual assault and sexual harassment and ensure these people are trained in responding to disclosures, delivered by an organisation with specialist expertise in this area
• Universities ensure information about individual disclosures is collected and stored confidentially
• Within 6 months of the report, universities conduct an audit of counselling services
• Universities engage an independent body to conduct the survey every three years
• Residential colleges and university residences commission an independent, expert-led review of the factors that contribute to sexual assault and sexual harassment in their settings.

The majority of recommendations are, however, largely reactive and focused on strengthening counselling services and providing training to frontline staff about responding to disclosures of incidents appropriately.

The recommendations are echoed in the “On Safe Ground” good practice guide for Australian Universities released by the AHRC shortly after the Change the Course report.

The report recommends “universities develop a plan for addressing the drivers of sexual assault and harassment” by providing education to students and staff and identifying existing resources that can be strengthened. In developing educational programs and resources, universities should engage experts to develop programs that achieve attitudinal, behavioural and cultural change.

While these services are critical in addressing and improving the current woeful underreporting statistics, disappointingly, only one recommendation deals with the need for preventative measures to address the high rates of sexual assault at Australian universities.

Given the broader social context driving the attitudes of young people towards sexual assault and harassment, it is discouraging to see only one recommendation deals with the need to proactively address high rates of sexual assault and harassment on campuses by working towards changing the culture.

While reactive measures and services are essential in providing assistance to those who have experienced assault and harassment, toxic attitudes and behaviours that often lead to such incidents need to change if statistics are to decrease.

A continuation of current social attitudes towards sexual assault and harassment may mean that a victim remains quiet, or a person who witnesses an incident may not think to intervene. Of 25% of students who witnessed another student being sexually harassed, 37% chose to do nothing as the behaviour was not considered serious enough to warrant intervention.

An urgent need for primary intervention

Preventative measures go beyond telling students not to sexually assault and harass other students.

When BucketOrange Magazine spoke with Empowered Together, an organisation that provides workshops on consent and respectful relationships to high school students, Ryan Ward, Chief Operating Officer, expressed disappointment at the lack of focus on prevention coming out of the report:

What we do at Empower Together, is we focus on high school students and delivering workshops on consent and sexual assault in years 9 and 10, so to see only one fairly minor mention of primary prevention as a recommendation was a little bit disappointing as it came out as a recommendation under leadership and wasn’t mentioned too much in the other parts of the report,” Ryan said.

Empowered Together run workshops on sexual assault and respectful relationships as well as issues around technology and social media platforms such as Instagram.

We start off with a narrative structure, breaking down what consent is, what sexual assault is … the practicalities around asking and giving consent and the consequences in not giving or receiving consent and we finish with practical scenarios,” Ryan said.

The focus, here, is education on respectful relationships and consent. In the past, public information around sexual assault has emphasised a “don’t get raped” narrative, placing the onus on victims to ensure their safety rather than an environment where men and women respect each other’s personal rights.

This approach is evident in personal safety tips released by some major universities.

In February this year, the ABC reported that the University of Melbourne advised students to:

Offer to pay half the bill [on dates] so that you won’t feel under any obligation to return the favour.”

Although this tip has since been removed from the university’s Safer Community Program website.

Griffith University advises students that when socialising they should avoid drinking too much as:

Keeping a clear head makes it easier to make wise decisions when it comes to personal safety.”

The focus is on what proactive steps potential victims may take to minimise their risk of being attacked and resources for reporting an incident after it has already occurred which fails to proactively educate and prevent sexual assault and harassment at first instance.

The immense benefits of preventative education can be seen in Kenya where young people are receiving practical training and education on respectful relationships, consent and intervening to prevent an assault. Sessions focus on practical tools and keep lecture-style learning to a minimum. The “No Means No Campaign” adopts a dual gender approach to learning and establishes an environment of mutual respect rather than placing the onus on a victim to proactively prevent an assault.

The success of the program has been overwhelming with incidents of rape decreasing by 51%.  The program has also seen a marked increase in the number of boys intervening in incidents of harassment, rising from 26% to 74%.

What will universities do?

The initiatives outlined in the 10 point action plan are a good start but ultimately keep the onus of personal safety on victims to proactively protect themselves against would-be predators. 

Campus security enhancements such as:

• increased lighting and security patrols
• smartphone safety apps that allow students to have a friend ‘virtually’ watch over them as they walk between destinations

are some of the most common measures implemented by universities.

Online educational modules on consent have also been introduced at most major Australian universities. However, the course is only compulsory at Bond University (for all undergraduate students), The University of Newcastle (for all students living on campus) and La Trobe University (for residential students). For other universities, students are automatically enrolled in the unit but are under no obligation to view the content.

Empowered Together’s, Ryan Ward, attended Monash University’s optional online module on consent.

I don’t know the statistics around who completed the Moodle module, I can’t imagine it is high and I can’t imagine that those who completed it understand their rights in a sexual interaction,” Ward said.

If they [the universities] were more transparent in how the initiatives they are implementing were working then that would be terrific.”

Macquarie University provides a face-to-face education program which has reached “more than 300 students” since 2016. Ward believes this type of training has the potential to be most effective.

I think you really need more of a facilitated integration of training to really change these cultures, to change attitudes and cultures of not reporting … I don’t think the security things are the best approach” Ward said.

Charles Sturt University will introduce compulsory modules for students who hold leadership roles as well as those that volunteer at the university and this acknowledges the role clubs and societies can play in preventing assaults.

Given “university or residence social events” are the number one setting in which sexual assaults reportedly occurred, it is important that universities look to residences, clubs and societies for implementation and training. 

Of the universities that listed training first responders as an initiative, only five out the 39 universities (University of New South Wales Sydney, James Cook University, the University of New England, University of the Sunshine Coast, Charles Sturt University) will deliver training to student leaders.

Recommendation five of the report suggests universities conduct an assessment of staff and students to identify those most likely to receive disclosures of sexual assault and harassment. Clubs and societies run weekend camps, pub crawls, trivia nights and annual Balls. Most of these events occur off campus.

The initiatives are a good start but:

I’d like to see what is in the pipeline rather than them [the universities] pointing to the small things they have done,” says Ward.

What now?

Changing university culture does not happen overnight. Perhaps it’s time that universities began approaching education initiatives from the bottom-up. This means providing education on consent and respectful relationships to student leaders in a format that will resonate and actually reach the students it needs to.

The survey has provided statistics in a way that has never existed before. It’s time for universities to deal with these statistics head-on by focusing on getting policies right and taking proactive measures in preventing future incidents. 

Further Information

If you, or someone you know, has been the victim of sexual assault contact:

Local police assistance line: 131 444

• New South Wales
• Queensland
• Western Australia
• Australian Capital Territory
• Victoria
• Tasmania
• South Australia
• Northern Territory

Get in touch with a counselling service:

• National Counselling Helpline: 1800 737 732 (1800 RESPECT) (National)
• National Sexual Assault & Domestic Family Violence Counselling Service
• Sexual Assault Services Throughout Australia
• Reach Out
• Centre Against Sexual Assault

In a historic and jubilant moment for Australian politics the bill to legalise same-sex marriage has passed the Senate today, without amendment, with 43 senators voting yes and 12 voting no.

Many senators have described today as the proudest in their parliamentary careers.

The bill will face its final hurdle in the House of Representatives next week when MPs resume the debate.

Senator The Hon. George Brandis said:

Australia may have been slow to reach this day – we are the last of the English-speaking democracies, and one of the last countries in what was once called Western Christendom – to embrace marriage equality. But when that day did come, it came triumphantly, it came joyously, and it came, most importantly, from the Australian people themselves. Like all of the best and most enduring social change, it was not imposed from above. The will for it germinated in the hearts and minds of the people themselves.

Now that the Australian people have spoken, it is for us, their elected representatives, to respond. And so, let us now complete the task which they have set us, and for which so many of us have worked for so long.”

This means that marriage equality is well and truly on track to become a reality by Christmas.

More on BucketOrange Magazine

Explainer: Marriage Amendment Bill Finally Hits Parliament, What’s Next?

What’s likely to happen in Parliament over the next few months?

To become Australian law, the proposed Bill will need to pass through the Senate and the House of Representatives with only nine Parliamentary sitting days remaining this year. It’s likely that there will be several amendments to the Bill before it is passed which, Attorney General George Brandis, believes will happen by December 7, if not earlier.

The vote deciding whether the Bill passes will be a “free vote” or a “conscience vote.”

This means that there will be no direction by the leader of each parliamentary party to Members or Senators to vote in any way on the Bill. It will be a matter entirely for each Member or Senator to decide the way that they wish to vote and to deal with the politics of the way they voted. As there will be no formal sanction, Members and Senators from the same political party may be voting differently from some of their colleagues.

Once the bill has passed Parliament, it will go to the Governor-General, Peter Cosgrove, for the Royal Assent. The commencement date of the Bill remains unclear, however, the legislation must commence within 28 days of Royal Assent.

President of The Law Society of NSW, Pauline Wright, says that the Law Society will scrutinise any proposed legislation and forward its recommendations to the Law Council of Australia to be included in a submission from the national body of the legal profession. Ms Wright said the Law Society has consistently supported the introduction of laws to enable same-sex marriage since 2012 to address discrimination against same-sex couples.

All Australians are entitled to be free from discrimination, to be subject to the same laws and to be treated equally before the law,” Ms Wright said.

Reform is appropriate where there are laws which discriminate against people on the basis of inherent characteristics, such as their sexual orientation or gender identity.

At the same time, it is appropriate that any proposed legislation be scrutinised to ensure that it does not erode other traditional rights and liberties that we presently enjoy.”

Quick recap of the proposed amendments

The proposed Bill has been drafted to:

• redefine marriage as ‘a union of two people’
• introduce non-gendered language so that the requirements of the Act apply equally to all marriages
• enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia
• amend the definition of ‘authorised celebrant’ to include new categories of religious marriage celebrants and certain Australian Defence Force officers
• enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and
• make amendments contingent on the commencement of the proposed Civil Law and Justice Legislation Amendment Act 2017; and Sex Discrimination Act 1984 to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.

Where to from here?

It’s going to be an interesting few months in Parliament. Malcolm Turnbull and many others in government are eager for same-sex marriage to be legalised prior to Christmas, which means that the first weddings could be taking place as soon as mid-January 2018.

More on BucketOrange Magazine

In the light of escalating tensions between the “yes” and “no” campaigns, both the Prime Minister, Malcolm Turnbull, and leader of the opposition, Bill Shorten, have reiterated that the marriage equality debate should be civil, respectful and, importantly, lawful.

Last week, emergency laws under the Marriage Law Survey (Additional Safeguards) Bill 2017 to ban vilification, intimidation, and threats in the same-sex marriage campaign were rushed through parliament. The new laws provide for offences for bribery and threats and civil penalties in relation to vilification, interference, discrimination and misleading or deceptive publications.

Civil penalties include fines of up to $12,600, however, any legal action for an alleged breach of the new law will need to be approved by Attorney-General George Brandis.

According to a government spokesperson who spoke to the Sydney Morning Herald:

It will be unlawful to vilify, intimidate or threaten to harm a person either because of views they hold on the survey or in relation to their religious conviction, sexual orientation, gender identity or intersex status.”

That will be a sunset provision, it will only last for the period of the postal plebiscite.”

The laws are similar to state and territory anti-discrimination laws that do not currently exist at a Commonwealth level.

NSW Anti-Discrimination laws, for example, provide for respectful discussion and debate of matters in the public interest, however, these matters must be done reasonably and in good faith, or risk breaching laws designed to protect the people of NSW from vilification on the grounds of their homosexuality.

Chief justice Susan Kiefel has announced that the High Court will hand down its decision on the voluntary same-sex marriage postal survey tomorrow at 2.15pm.

Full reasons will be published later.

Knowing how to effectively challenge a fine presents a stumbling block for most of us.

In an Australian-first for the legal assistance sector, Moonee Valley Legal Service recently launched FineFixer – a new website that provides personalised legal information to help Victorians understand their legal rights and how to tackle fines.

More than 5 million fines are issued each year in Victoria alone. This, coupled with a lack of understanding of the tools and services available to help manage payments, has led to Victoria Legal Aid and community legal centres being inundated with requests for assistance.

FineFixer has been developed to help Victorians understand their rights and to pay fines using a quick and easy process. The platform not only enables early action that avoids the accumulation of costs and penalties but also frees up valuable time for community legal centres and Legal Aid.

FineFixer was designed by students at RMIT’s Fastrack Innovation Program, which tackles society-level problems using a design-driven approach to innovation. The program brings together outstanding students from diverse programs and backgrounds, with subject matter experts from industry to conceive, test and develop innovative solutions to real-world challenges.

Winning the program’s ‘Most Viable Solution Award’ in 2015, FineFixer gained strong support from the legal sector, with Moonee Valley Legal Service receiving a grant from Victoria Law Foundation to help bring the concept to fruition. PaperGiant – a research-led design and development studio – were responsible for website’s design and development.

Brendan Lacota, Principal Lawyer at Moonee Valley Legal Service, sees much potential for emerging technologies in supporting legal services:

Smart tools like FineFixer are essential for meeting the growing need for legal services. FineFixer offers a free and fast way for people with fines to identify and understand their options, and gives them the tools they need to take action without getting further into debt.”

The Victorian Council of Social Services (VCOSS) has also recognised the importance of FineFixer. Speaking at FineFixer’s launch last week, VCOSS CEO Emma King highlighted its value:

By helping people at the start of the process to know their rights and navigate the bureaucracy, FineFixer will help thousands of Victorians keep their lives – and their finances – on track.”

Further Information

For more information visit FineFixer.

FineFixer received a grant from Victoria Law Foundation. Do you have an idea for a project that will help Victorians to better understand the law like FineFixer has? Applications for Victoria Law Foundation’s 2017-18 General Grants are now open and close on 28 August 2017. Visit Victoria Law Foundation for more information.

While preparing a lecture on fashion law, trademarks and intellectual property, a strange thought occurred to me: “Is my skin an illegal artwork?” Don’t get me wrong, I’m no masterpiece. I do, however, have tattoos. One illustration by Audrey Kawasaki, one of my favourite Japanese-American artists, is sizeable and took nine hours to complete.

The tattoo was completed long before I turned my mind to the intricacies of intellectual property law, which is developing at rapid speed around the world. We’re talking attempts made by companies to trademark colours, shapes of lego and chocolate, hashtags and cheerleading costumes. Elsewhere, famous individuals have sought to protect personal branding and potential financial loss by really stretching the definition of what is trademarkable (think Taylor Swift trademarking the phrase “this sick beat” and Gene Simmons seeking to trademark the infamous ‘devil horns’ hand gesture). There has also been widespread and expensive litigation surrounding copyright infringement of popular songs and photographs.

What is, and importantly, what is not capable of being protected by intellectual property law has significant flow on implications for individual creative rights and, increasingly, for big business.

Personally, I have occasionally regretted my failure to contact Kawasaki and request permission to use her design for my tattoo, although at the time my mind was more preoccupied with “arghhhh needles!”

So the question remains: could I be breaching Australian copyright law? Could my tattoo artist? The answer is a resounding … probably.

While there is little law in this rather niche area, especially in Australia, it has been judicially considered in the United States.

Are tattoos subject to copyright protection?

Short answer – yes.

Long answer – it may depend on where you live.

The UK, for example, has been reticent to explore litigation in this area, citing irreconcilable tensions between human rights law, including the right to privacy and freedom of expression, and copyright protection.

In the United States, like Australia, it is not necessary to register copyright for the protection to exist. However, to sue for copyright infringement of a creative work in the US, it is necessary to have registered the design. Copyright infringement of tattoos is a developing area in the US and one that has seen a number of high profile cases in recent years.

In Australia, copyright law automatically protects original ‘artistic works’ such as paintings, drawings, cartoons, sculptures, craft work, architectural plans, buildings, photographs, maps and plans. However, there is still some uncertainty around whether a tattoo would qualify as an artistic work in Australia and there has been no litigation in this area to clarify the issue.

Some commentators have suggested that to put the matter beyond doubt tattoo artists could sketch or draw original designs on a sheet of paper prior to beginning a tattoo on skin.

Do celebrities and sports stars own their tattoos? 

Sometimes it’s a movie

For anyone who has endured the 2011 film The Hangover: Part II, you may have observed a copyright violation. In the film, ‘Stu the dentist’ ends up with boxer Mike Tyson’s signature tattoo inked on his face.

As it turns out, Tyson’s distinctive tattoo was designed by the award-winning tattoo artist, Victor Witmill, who has described Tyson’s design as “one of the most distinctive tattoos in the nation.” At the time the tattoo was completed, Witmill had the foresight to have Tyson sign a document confirming that ownership rights to the original design vested in him as the artist.

Fast forward to Warner Bros. anticipated release of The Hangover: Part II and – bang – Witmill sought an injunction to prevent the studio from releasing the film on the basis of copyright infringement given that he was not contacted by either the studio or Tyson to seek his permission to use the image in the film or to credit his creation.

The Honorable Catherine D. Perry referred to the contract/release between Tyson and Witnill as:

totally consistent and appropriate under copyright law.”

and was also satisfied that Warner Bros. use of the design was unauthorised. It was noted that on the balance of equities (given the “very large” harm to the studio and loss of millions of dollars) as well as public interest considerations (given that the public wanted to see the movie and theatre owners stood to lose a lot of money) that Witmill’s injunction should be denied and the film allowed to open.

However, despite the ruling, Judge Perry said that Whitmill would “probably win” his case if he sued Warner Bros. Witmill went ahead and sued the studio for copyright infringement and the case was settled out of court for an undisclosed sum.

Playing video games

As we have seen with The Hangover: Part II, any replication of a tattoo design without permission from the creator can constitute a breach of copyright.

When it comes to video games, to enhance the user experience and simulate reality, sports stars are created as realistically as possible even down to replicating tattoos.

In recent years, several lawsuits have been filed over the use of copyrighted tattoos on players without permission from the artist.

EA Sports has come under scrutiny several times. The company was sued over a 2004 game, NFL Street, which prominently depicted footballer Ricky Williams’ tattoo created by artist, Stephen Allen, on the cover of the video game. Allen sued both Williams and the publisher for replicating the tattoo without seeking his permission.

In 2012, UFC fighter Carlos Condit’s tattoo artist filed a lawsuit against video game developer THQ for featuring his artwork in a new UFC game without permission. The tattoo artist sought $US 4 million and was awarded $US 22,500 but later challenged this sum as inadequate. The case settled for an undisclosed figure.

It should come as no surprise, then, that for the 2014 game release, EA Sports, who now owns the UFC licence, removed or altered tattoo artwork on its digital fighters, including Carlos Condit’s famous ink, to avoid any risk of litigation from owners of the original designs.

One savvy game developer who has taken note of the growing litigation trend surrounding the replication of original tattoos in video game development is Madden. Its NFL game depicts all players, apart from Colin Kaepernick, as cleanskins.

The NFL players association has raised similar concerns with its members and advised players to obtain a written release from tattoo artists even before the needles are unpacked. For existing tattoos, players are advised to contact the creator of the original tattoo and obtain a release. Managers for Colin Kaepernick of the San Francisco 49ers even wisely asked tattoo artist Nes Andrion of Endless Ink to sign a waiver ensuring Kaepernick’s tattoos were his and his alone.

As we have seen, not seeking permission from a tattoo artist or failing to obtain a written release, particularly in the case of sporting stars, can result in dire and very expensive consequences.

A 2016 copyright infringement case, for example, saw the NBA 2K16 game company, Take Two, sued by Solid Oak Sketches for over $US 1.1 million for the license to use their designs in video game representations of some of the biggest stars of the NBA including Kenyon Martin, LeBron James and Kobe Bryant.

The skin you’re in 

In an age where social media influencers have millions of followers viewing personal images daily, it doesn’t seem like such a reach to consider the possibility that our bodies are becoming billboards that advertise our commercial interests, sponsors, passions, personality and perhaps our identity to the world. But how absolute is our ownership of the skin we live in?

Depending on how the law develops in this area, we may not own the artwork on it.

It’s easy to accept that making a copy of an artwork to hang in our home is a breach of the original artist’s copyright. But how is replicating another artist’s original work in the form of a tattoo on our skin any different? Will the courts accept such similarities or will tattoos be considered too impermanent to be copyright protected in Australia? It bears mention that a tattoo design walks around all day with you and is much more visible to the public than it would be hanging in your home.

While the answer to how far Australian copyright protection of tattoo art extends does remain somewhat unclear, it’s safe to move forward using a few key principles:

1. before being inked, wherever possible, consider a copyright agreement that clearly stipulates who owns the tattoo
2. seek permission in writing in situations where, like my Kawasaki tattoo, your prospective ink replicates the original work of another artist
3. as professional athletes and other public figures are most at risk of coming under scrutiny for tattoo copyright violations, try to avoid becoming a celebrity (insta-famous or otherwise) and, if you do, cover up your body art.

Do you have any tattoos that could be violating copyright law? Let us know in the comments! 

We’ve all been there – slowly reclining in an uncomfortable blue plastic dentist chair, willing the experience to be over as quickly and painlessly as possible. A basic check-up is what you signed up for, but you leave the office with a fresh set of x-rays, a numb mouth, three fillings and a follow-up appointment booked a few weeks later.

We place a pretty unique amount of trust in the ethics of our dentists given how little we ourselves often know about dentistry. Apart from the large costs associated with most dental procedures, unanticipated and unnecessary dental work can call into question how genuine our consent to a procedure was.

The common practice of fear-mongering in the profession can make us feel pressured to agree to procedures that, in different circumstances, and with more time to process the information, we may not have agreed to. You’re probably all-too-familiar with the anxious feeling of being upside down, giddy from half your blood rushing to your head, at least partially anesthetised, mouth wide open with a dental dam obstructing your breathing and speaking. It’s usually at this point that your dentist makes an ominous or disapproving grunt while saying:

Ooh, yes. Hmmm. Okay, I see you have quite a bit of decay on a few other teeth. While I’ve got you here, let’s get these other teeth sorted. I’ll drill a little and we can see how deep the decay goes. If we don’t do anything today, you could risk losing the tooth completely or we may have to do a root canal at a later stage. What do you think?”

Bewildered, sore and vulnerable you probably respond with something almost unrecognisable as English:

Errrhmm …. Uh huhh …. Oray, ret’s yust do eet now.”

Situations like this – that leave your wallet lighter and your jaw heavier with mercury – have probably left you wondering just what constitutes informed consent when it comes to dental procedures.

Rest assured, dentists must comply with the Dental Board of Australia Code of Conduct for registered health practitioners. The Code of Conduct covers everything from effective communication to non-discrimination in service provision.

What constitutes informed consent?

Doctors are not the only health professionals at risk of being sued for medical negligence. Dentists have a legal obligation to ensure that patients understand the risks and costs (both physical and financial) associated with undergoing a given treatment and are fully informed of any alternatives, including the likely outcome if nothing is done.

The Code of Conduct also includes guidance on informed consent. Good practice in relation to informed consent involves:

1. providing you with information in a way you can understand before asking for your consent
2. obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving you in teaching or research, including providing information on material risks
3. when referring you for investigation or treatment, advising you that there may be additional costs, which you may wish to clarify before proceeding
4. if your capacity to consent is impaired or limited, obtaining the consent of someone with legal authority to act on your behalf and attempting to obtain your consent as far as practically possible
5. being mindful of additional informed consent requirements when supplying or prescribing products not approved or made in Australia, and
6. documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.

The Australian Dental Association provides even more extensive guidance on informed consent, which you can find here, including the need for your consent to a procedure to be obtained without duress. According to ADA guidelines:

Consent may be given in writing, orally or by conduct. In most routine dental examinations and treatments the patient’s consent is obtained verbally. However, where the proposed treatment involves complex or invasive procedures, anaesthesia or sedation, significant expense and/or is of an elective or cosmetic nature, good professional practice warrants the use of a signed written consent form to document the process of consent and confirming the patient’s agreement to the proposed treatment. A signed consent form does not, by itself, provide conclusive proof of a legally valid consent. Evidence of the dentist’s usual practice, supported by appropriate practice records may be required.”

Informed consent is a voluntary decision made based on knowledge and an understanding of the benefits and risks associated with a given procedure, not simply asking your permission before taking a set of dental pliers to your mouth.

As established by the case Dean v Phung [2012] NSW CA 223, dentists can be sued for medical negligence if they ‘over-service’ a patient. In this case, Mr Dean’s front teeth were injured during the course of employment, and his employer arranged for him to see a dental surgeon, Mr Phung. Over a period of 12 months and 53 consultations, Mr Dean had treatment amounting to over $70,000. Mr Dean subsequently alleged that the treatment was unnecessary and ineffective and that Mr Phung must have known this.

It was found that the treatment Mr Dean received constituted a trespass to the person, because it was not capable of constituting a therapeutic response to Mr Dean’s condition, and was thus unnecessary. This understanding of consent requires that the treatment is “reasonably necessary”, as represented by the dentist in question.

If your dentist makes a false representation that a procedure or treatment is reasonably necessary (or similar), and you agree to that procedure or treatment on the basis of this representation, they may have committed medical negligence.

What is notifiable conduct?

“Notifiable conduct” is a further protection afforded to the public in healthcare provisions. This is a mandatory requirement of health practitioners where they must inform the Australian Health Practitioner Regulation Agency (AHPRA) if they reasonably believe that another practitioner has:

1. practised their profession while intoxicated by alcohol or drugs; or
2. engaged in sexual misconduct in connection with their profession; or
3. placed the public at risk of substantial harm in the practice of their profession because the practitioner has an impairment; or
4. placed the public at risk of harm because they have practised their profession in a way that constitutes a significant departure from accepted professional standards.

Making a complaint or report to AHPRA

Patients are not subject to the mandatory notification requirement but you can voluntarily notify the AHPRA about a registered health practitioner on the grounds that:

1. a dentist’s professional conduct is or may be of a lesser standard than that which might reasonably be expected by the public or by the dentist’s professional peers
2. the knowledge, skill or judgment possessed or care exercised by the dentist in the practice of their profession is or may be below the standard reasonably expected
3. the dentist is not or may not be a suitable person to hold registration in the health profession, including, for example, that the dentist is not a fit and proper person to be registered in the profession
4. the dentist has or may have an impairment
5. the dentist has or may have contravened National law
6. the dentist has or may have, contravened a condition of their registration or an undertaking given by the dentist to a National Board;
7. the dentist’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.

Once a notification is made, AHPRA is required to refer the notification to the National Board that registered the dentist and to conduct a preliminary assessment of the complaint. Immediate action may be taken if the National Board reasonably believes that because of the dentist’s conduct, performance or health, they pose a serious risk to persons; and it is necessary to take immediate action to protect public health or safety.

Bringing it home

Doctors and dentists may seem incredibly different, but they are held to the same standards of care.

It’s just as important that the risks of undergoing a root canal are explained to you clearly, and that you understand them, as it is that you understand the risks associated with a surgical procedure or taking a new medication.

Further Information

To make a complaint or report a concern about a dental practitioner, visit the Dental Board of Australia.

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.