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How to choose a legal decision-maker as you get older – 3 things to consider

<div class="theconversation-article-body"><a href="https://theconversation.com/profiles/joseph-ibrahim-252671">Joseph Ibrahim</a>, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> and <a href="https://theconversation.com/profiles/amelia-grossi-1280226">Amelia Grossi</a>, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> “It’s my life and I’ll do what I want,” <a href="https://www.youtube.com/watch?v=HNzmrEgz_GI">sang</a> Eric Burdon of The Animals to the baby boomer generation. Unfortunately, that’s not always the case. As we get older, sometimes we are no longer capable of making our own decisions. Diseases that affect the brain such as dementia, stroke and head injury can impair cognition and thinking. Some people may choose to appoint a <a href="https://www.legislation.vic.gov.au/in-force/acts/medical-treatment-planning-and-decisions-act-2016/008">medical treatment decision-maker</a> or an <a href="https://www.legislation.vic.gov.au/in-force/acts/powers-attorney-act-2014/007">enduring power of attorney</a> to make certain decisions on their behalf. Alternatively, a legal tribunal or court may appoint <a href="https://www.legislation.vic.gov.au/in-force/acts/guardianship-and-administration-act-2019/005">a guardian or trustee</a> to help guide decisions about health care, finances, accommodation and lifestyle. Who is the right person to take on this important role? Is it the family member or partner who knows you best? Or someone with time and energy? Perhaps someone who understands the services you need – like a nurse, accountant or real estate agent? The role of a decision-making representative has <a href="https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/3-national-decision-making-principles-2/will-preferences-and-rights-2/#:%7E:text=The%20'best%20interests'%20principle%20is,an%20equal%20basis%20with%20others">changed significantly</a> in recent years, shifting from a paternalistic approach to a more person-centred focus. Our <a href="https://pubmed.ncbi.nlm.nih.gov/35157838/">research</a> looks at the differences between these approaches and how subconscious bias can influence decision-making. <h2>Taking care</h2> These days, guardianship has <a href="https://www.legislation.vic.gov.au/in-force/acts/guardianship-and-administration-act-2019/005">moved</a> from deciding what’s deemed to be in the individual’s “best interests” to what best reflects their “will and preferences”. While <a href="https://www.legislation.vic.gov.au/repealed-revoked/acts/guardianship-and-administration-act-1986/089">previously</a>, decisions were made for the person by their guardian or representative, new laws require representatives to enact the person’s “will and preferences”. That is, to make decisions with them. This is an important difference. The newer model gives the represented person more autonomy over personal, financial and other decisions. It recognises that even though a person may struggle with aspects of decision-making, they should not be excluded from decisions about how they live their life. This fundamental shift was <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6313688/">earlier adopted</a> by the United Nations in the <a href="https://www.ohchr.org/en/hrbodies/crpd/pages/conventionrightspersonswithdisabilities.aspx">Convention on the Rights of Persons with Disability</a>, to which Australia is a signatory. <h2>Challenging in real world situations</h2> The will and preferences <a href="https://supporteddecisionmaking.com.au/wp-content/uploads/sites/4/2021/08/Realising-will-preferences-and-rights-reconciling-differences-on-best-practice-support-for-decision-making.pdf">framework</a> may sound simple, but it can be <a href="https://www.tandfonline.com/doi/full/10.1080/09687599.2021.1941781">challenging in practice</a>, when concepts of empowerment are tricky to define and the will of someone with cognitive difficulties is hard to discern. Representatives <a href="https://supporteddecisionmaking.com.au/wp-content/uploads/sites/4/2021/08/Realising-will-preferences-and-rights-reconciling-differences-on-best-practice-support-for-decision-making.pdf">bring their own biases, perceptions and lived experience</a> to the role of supporting another person to make decisions. This subjectivity is a natural and an inherent part of decision-making. The representative faces the challenge of setting aside their own opinion and, instead, stepping into the shoes of the represented person to give effect to what they want. A mismatch between the age, gender, ethnicity, religion or socioeconomic status of the representative and the represented person can exacerbate this challenge. An older able-bodied female, who is deeply religious and from a middle-to-high income background might find it difficult to represent a young man with a disability who is an atheist and from a working-class background. Now, imagine a scenario where the young man expresses a desire to go bungee-jumping or parachuting, despite previously showing a fear of heights. What’s his representative to do? Older people and women generally <a href="https://www.tandfonline.com/doi/abs/10.1080/1366987032000105315?journalCode=rjrr20">have a lower appetite for risk</a>, as do those who have a faith and with a high socioeconomic status. A heightened perception of danger or a feeling the activity as frivolous, may lead to the representative reframing the situation with their subconscious bias. They may fail to respect the younger person’s will and preferences. Understanding what might shape a representative’s approach to decision-making is essential. Especially when decisions involve <a href="https://theconversation.com/do-you-want-to-be-resuscitated-this-is-what-you-should-think-about-before-deciding-105506">health</a> or <a href="https://theconversation.com/theres-no-need-to-lock-older-people-into-nursing-homes-for-their-own-safety-73954">living arrangements</a>. <h2>3 things to look for when selecting a legal decision-making representative</h2> 1. Deep understanding An intimate understanding of your situation is crucial. An ideal representative is someone who actively listens and has a holistic view of your circumstances. This may come from discussions with you and your loved ones. The representative must be careful your views are not outweighed by those of family or friends who are often more vocal. They should have a deep sense of who you are as an individual. 2. Self-awareness The person you choose should be able to describe their personal views and values and understand how their perspective may influence their decisions. This is vital to mitigate the effects of pre-existing bias. They should be able to reflect on their own lived experiences, to understand how their history shapes their approach to decision-making. They should be able to assess whether what you would do is the same as what they think you should do, and why. 3. Effective documentation A record of conversations between the representative and represented person often helps to illuminate a person’s will and preferences. Writing or recording compels us to commit to an idea and explain what we mean. It helps to clarify what is intended far better than a one-time conversation that may be remembered differently by participants. Further research is needed to better match representatives with represented persons. Improved tools are needed to identify the role of bias in decision-making and evaluate whether the represented person’s wills and preferences are being respected.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/177631/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/joseph-ibrahim-252671">Joseph Ibrahim</a>, Professor, Health Law and Ageing Research Unit, Department of Forensic Medicine, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> and <a href="https://theconversation.com/profiles/amelia-grossi-1280226">Amelia Grossi</a>, , <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> Image credits: Shutterstock This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/how-to-choose-a-legal-decision-maker-as-you-get-older-3-things-to-consider-177631">original article</a>. </div>

Legal

ACCC launches legal action against Coles and Woolworths

The Australian Competition and Consumer Commission (ACCC) has launched legal action against supermarket giants Woolworths and Coles. The ACCC alleges that they breached consumer law by misleading customers through fake discount pricing on hundreds of products. They also alleged that both companies had sold items at regular prices for up to six months, then increased the prices of those items by at least 15 per cent before placing them in the promotion. The ACCC alleges up to 266 products were involved in the fake discount pricing at Woolworths at different times over an estimated 20 month period, and 245 products for Coles over a 15 month period. “Following many years of marketing campaigns by Woolworths and Coles, Australian consumers have come to understand that the ‘Prices Dropped’ and ‘Down Down’ promotions relate to a sustained reduction in the regular prices of supermarket products,” ACCC chair Gina Cass-Gottlieb said. “However, in the case of these products we allege the new ‘Prices Dropped’ and ‘Down Down’ promotional prices were actually higher than, or the same as, the previous regular price.” Some of the Woolworths products reportedly included Tim Tams, Dolmio sauces, Doritos Salsa, Energizer batteries, Kellogg's cereals and more. For Coles, products reportedly included Arnott’s Shapes biscuits, Band-Aids and Cadbury chocolates amongst others. In a statement, Woolworths CEO Amanda Bardwell said they would carefully review the claims and engage with the ACCC on the matter. "Cost-of-living pressures remain a key issue for millions of Australians who shop with us every week,” she said. "Our customers are telling us they want us to work even harder to deliver meaningful value to them and it's important they can trust the value they see when shopping our stores. "Our Prices Dropped program was introduced to provide our customers with great everyday value on their favourite products. "We remain committed to offering many ways for customers to save at the checkout, including thousands of weekly specials, everyday low prices on household essentials, a great value own brand range and through our Everyday Rewards program." Coles said the allegations related to a period of significant cost inflation for the retailer. “Coles’ own costs were rising, which led to an increase in the retail price of many products,” it said. “Coles sought to strike an appropriate balance between managing the impact of cost price increases on retail prices and offering value to customers though the recommencement of promotional activity as soon as possible after the establishment of the new non-promotional prices.” CHOICE Director of Campaigns Rosie Thomas welcomed the ACCC's announcement and call for greater transparency in supermarket pricing. "We know … promotional labels at the major supermarkets often confuse shoppers and the frequent changes in prices make it difficult to tell whether there is a genuine discount or not," she said. The ACCC said it identified the conduct through consumer contacts and social media monitoring. "We're seeking a significant penalty," the ACCC chair said. "This is serious conduct that is of great concern to us, that affected many consumers with millions of products sold, subject to this practice." Image: ABC News

Legal

Legal battle could separate Molly the Magpie and carers again

Molly the Magpie and her friends Peggy and Ruby the Staffies captured hearts around the world with their unlikely friendship. In March, the trio were separated from each other, following <a href="https://www.oversixty.com.au/lifestyle/family-pets/tears-started-rolling-first-glimpse-of-molly-the-magpie-shared-by-carers" target="_blank" rel="noopener">complaints </a>that his owners, Juliette Wells and Reece Mortensen, didn't hold a wildlife permit. After 45 days apart, Queensland’s Department of Environment, Science and Innovation (DESI) granted them a licence with <a href="https://www.oversixty.com.au/lifestyle/family-pets/first-pics-of-molly-the-magpie-reunion" target="_blank" rel="noopener">special conditions</a> so Molly could return home to her adoptive family. But now their licence to keep Molly has been called into question, threatening to separate them again, according to A Current Affair. "Four years ago yesterday, when we came across a little magpie, who would have thought we'd be standing in front of the Supreme Court here in Brisbane," Wells said. Mortensen and Wells don't even know who is challenging the Queensland government's decision to reunite the magpie with the family, as the wildlife support volunteer and magpie specialist chose to remain anonymous. "Molly's 100 per cent, and always has been, our focus, his well being... and we just want to just move on and just get over, get on with it," Mortensen said. The applicant will stay anonymous as they contest the government's decision to grant them the licence to care for Molly. "Every time we're in the public sight and things like that, it raises awareness for people to get out there and try and do something to help wildlife and become involved," Mortensen added. "That's what we want to try and do is get get as many people involved as we possibly can in helping wildlife." Image: A Current Affair/ Instagram

Legal

"I am a woman": Boxer launches legal action after gold medal win

Imane Khelif has filed an official complaint over online bullying and harassment she has been subject to throughout the course of the Paris Olympics. The Algerian boxer, who took home the gold medal in the women's competition, has been at the centre of a wave of abuse over her gender, with misinformation circulating over her gender. According to Khelif's lawyer Nabil Boudi, the gold medallist has filed a legal complaint in France for online harassment. “The boxer Imane Khelif has decided to begin a new fight, a fight for justice, dignity and honour,” Boudi said in a statement, saying Khelif had filed the complaint for “aggravated online harassment … to Paris prosecutors”. He added, “The investigation will determine who was behind this misogynist, racist and sexist campaign, but will also have to concern itself with those who fed the online lynching.” The “iniquitous harassment” the boxing champion had been subjected to would remain “the biggest stain on these Olympic Games”, said Boudi. On Saturday, Khelif emerged victorious in the women’s 66kg final against China’s Yang Liu in a unanimous points decision, having been the focus of intense scrutiny in the French capital for the duration of the Games. After her victory, Khelif said the gold medal she had won was the best response to her critics. Asked by reporters about the row over her eligibility, she said, “I am fully qualified to take part, I am a woman like any other. I was born a woman, lived a woman and competed as a woman.” Image credits: Ulrik Pedersen/CSM/Shutterstock Editorial

Legal

Sacked Seven reporter launches legal action

Veteran journalist Robert Ovadia has launched legal action against Channel Seven and its news boss Anthony De Ceglie after claiming he was unlawfully <a href="https://oversixty.com.au/finance/legal/veteran-seven-reporter-sacked-over-misconduct-allegations" target="_blank" rel="noopener">sacked</a>. The well-known news reporter was let go from the network on June 21st, following allegations of "inappropriate behaviour", with the alleged conduct reportedly including the exchange of messages with a female colleague four years ago. Seven management only became aware of the allegedly inappropriate exchange when it was reportedly brought to their attention by the ABC’s Four Corners program, which was working on an investigation into allegations of a toxic culture at Seven. Now, reports from The Australian claim the journalist lodged paperwork with the Fair Work Commission last month just days after being axed. Ovadia's lawyer John Laxon has confirmed to <a href="https://www.news.com.au/finance/business/media/veteran-journalist-robert-ovadia-takes-legal-action-against-seven/news-story/4ef1a259b51f72e35381eb1571c56d09" target="_blank" rel="noopener">news.com.au</a> that a general protections application has been lodged seeking orders of compensation for his dismissal, reinstatement to his job and pecuniary penalties. The reporter, who worked at Seven for 23 years, has previously said any suggestion of inappropriate behaviour was “false, malicious and will be defended”. A Seven spokesperson told The Australian it took “very seriously any allegations in relation to sexual harassment, bullying and other behaviours deemed to be inappropriate within the workplace”. “We take complaints seriously, manage them confidentially and deal with any breaches decisively.” Image credits: Seven

Legal

Lisa Wilkinson's hefty legal fees revealed

The eye-watering costs of Lisa Wilkinson's legal battle against Bruce Lehrmann after he unsuccessfully sued her for defamation has been revealed. Lehrmann took Wilkinson and her former employer Network Ten to court following the airing of allegations by Brittany Higgins that she was raped in Parliament House in 2019. The defamation suit was lost by Lehrmann in April after Justice Michael Lee found that Lehrmann had, on the balance of probabilities, assaulted Ms Higgins, therefore cannot be defamed for the allegations. Ms Wilkinson has now returned to court in an attempt to recuperate approximately $1.8 million in legal fees from Network 10 after she decided to be represented separately to her former employer. Documents released by the Federal Court on Thursday reveal the eye-watering cost behind Ms Wilkinson’s defence by high-profile defamation lawyer Sue Chrysanthou SC. The documents detail numerous invoices issued to Ms Wilkinson throughout the years-long legal battle; the most recent being an invoice dated May 9th for $405,328. The fee is listed as being for Ms Sue Chrysanthou‘s counsel; similar fees dating back to mid-2023 ranged in size from $10,340 to $97,988 before GST was added. The largest single invoice issued to Ms Wilkinson was dated February 29th 2024 and amounted to a whopping $576,224.72 after GST, which included news subscriptions and lunches. Early costs agreements sent to Gillis Delaney Lawyers, who Ms Wilkinson had retained to represent her, and Ms Chrysanthou quoted fees of $8,000 per day. A range of other expenditures are included in the documents, including thousands of dollars for printing and folders, USB drives, and subscriptions to The Australian. A referee is expected to be appointed for certain items that the Network claims did not come under legal costs, with Justice Lee foreshadowing a similar process for costs being asked of Mr Lehrmann. In earlier written submissions, Network 10 said it did not have to pick up the bill for Ms Wilkinson’s legal costs which were “unnecessarily duplicative or wasteful”. The referee, called for by Network 10, will be tasked with combing through the legal bills incurred by the former The Project host to decide whether the costs were reasonable, and whether she would be compensated. Image credits: Steven Markham/Speed Media - MICK TSIKAS/EPA-EFE/Shutterstock Editorial

Legal

Michael Schumacher’s family's huge legal victory

Michael Schumacher's family are celebrating a big win against a German magazine, after they published what they claimed was an "exclusive interview" but was actually AI-generated. The family have received a compensation payment of 200,000 euros ($327,065 AUD) more than a year after the magazine printed the fake interview with the Formula One legend. In April 2023, Schumacher appeared on the front cover of German publication Die Aktuelle under the headline, “Michael Schumacher, the first interview”. The publishers left a very small hint on the page that the article wasn't real, although adding that the interview “sounded deceptively real”. The article seemed to be a real interview, featuring artificial "quotes" from Schumacher about his health and his family. However, Schumacher has famously not been seen publicly since his ill-fated skiing accident in the French alps in December 2013, and his health battle has been kept intensely private by his family. But the article appeared to say otherwise, with one of there fake quotes reading, "I can, with the help of my team, actually stand by myself and even slowly walk a few steps.” “My wife and my children were a blessing to me and without them I would not have managed it. Naturally they are also very sad, how it has all happened." “They support me and are standing firmly at my side.” A spokesperson for the Schumacher family confirmed to Reuters the $327,065 judgement had been made against Funke Mediengruppe, the owners of the magazine. Funke Mediengruppe apologised to the family in the aftermath of the article and the editor of Die Aktuelle was sacked two days after it was published. Image credits: Attila Kisbenedek/EPA & HANNIBAL HANSCHKE/EPA-EFE / Shutterstock Editorial

Legal

Iconic blonde bombshell Cindy Morgan dead at 69

Cindy Morgan has passed away aged 69. The actress, who gained fame in the 1980s for her iconic blonde bombshell role as Lacey Underall in the cult classic film Caddyshack, was found dead in her room with no foul play suspected according to TMZ. A representative for the Palm Beach County Sheriff’s Office confirmed on Saturday that the actress passed away due to natural causes. Morgan's roommate reportedly called police to their Lake Worth Beach home on December 30, 2023 when she returned from her holiday and got no response after knocking on the actress' door. TMZ reported that her roommate told police she smelled a strong odour coming from inside, before they found her dead. In addition to playing Lacey in the iconic 1980 comedy hit alongside Bill Murray and Rodney Dangerfield, she also starred in 80s sci-fi flick Tron as Dr. Lora Baines and computer program Yori. Morgan graduated from Northern Illinois University with a degree in communications, before her big break on the screen. She also appeared in a number of TV shows over the years, including The Love Boat, Bring ‘Em Back Alive, The Fall Guy, The Larry Sanders Shows and more. Images: Getty

Caring

"Is this legal?" Residents outraged over demanding aircon letter

Residents in a Sydney unit complex were left outraged after they were asked to turn off their air conditioners overnight. A letter placed inside the elevator of the 18-floor apartment building states that the utility can only be used “during the following times." “Weekdays 7am to 10pm, weekends and public holidays 8am to 10pm,” the letter said. “At other times than this, please turn off your air conditioners, especially after 10:00 PM every day.” The letter, which was posted on Facebook, received a lot of backlash from other residents and renters One resident who lived in the 1960s building for a decade said it was the first time she had heard of such a request. “Can anyone please let me know if this is legal? Can they actually force people to not run their own AC units?” the person asked. Many other renters expressed their annoyance, with one joking that they'd have to pry the aircon off their dead hands. “Anyone else feel like we are in a Nanny State?” one wrote. “To be honest with 30°c nights they can pry my aircon from my cold dead heads,” another quipped. One Facebook user also commented that building developers might be to blame. “I think the strata builders got a bit cheap and installed less expensive aircons and therefore they are too loud. Bet if they had decent ones, the tenants wouldn’t have to suffer hot nights because of the noise,” they said. A few others commented that it might not just be a request from strata, but local councils that are enforcing new noise pollution restrictions which affect aircons. City of Sydney, Inner West, and Penrith councils, are a few of the local governments which require the airconditioners to be turned off 10pm to 7am during the week and until 8am on the weekend, the same time requested on the laters. The local governments also recommend that residents and developers purchase high-quality airconditioners that won't cause noise pollution or disturb neighbours. “Even if you’ve been told that it complies with noise requirements, it doesn’t mean it’s going to suit every location all the time,” the Inner West Council website read. The letter comes as Sydney battles its second heatwave in the span of a week. Images: Facebook/ Getty

Legal

"I can't go for that": Hall & Oates in bitter legal battle

In a turn of events to rival any classic Hall & Oates song about heartbreak, betrayal and possibly a saxophone solo, the iconic musical duo has found themselves embroiled in a legal battle that might just be their most melodramatic performance yet. Daryl Hall, the soulful half of the duo, has accused longtime partner John Oates of committing the "ultimate partnership betrayal". Forget "Maneater", this is more like "Share Eater". In a court declaration that reads like the lyrics of a soulful ballad, Hall lamented the deterioration of his relationship with Oates, and trust us, it's not your typical "I can't go for that (no can do)" situation. The duo's joint venture, including trademarks, personal name and likeness rights, record royalty income and even the sacred social media assets, are now centre stage for a legal showdown. It's not quite the Hall & Oates Reunion Tour we were all hoping for. It appears Oates is planning to sell his share of Whole Oats Enterprises LLP without Hall's permission (cue dramatic music) – and Hall is not taking this lying down; he's filed a lawsuit to keep the transaction on pause, turning their dispute into a legal chart-topper. A judge has issued a temporary restraining order, effectively hitting the pause button on Oates' plan to part ways with Whole Oats Enterprises, with lawyers no doubt drafting lyrics for the inevitable courtroom musical as we speak. Oates, not one to let the accusations slide, fired back in his court filing, expressing disappointment in Hall's "inflammatory, outlandish, and inaccurate statements". He claims he's been trying to enhance their business partnership, but it seems like Hall might not be feeling the groove. The legal documents reveal that Hall is deeply troubled by the deterioration of their relationship, and who can blame him? It's not every day your musical partner decides to sell the band without even a courtesy call. Amid accusations of confidentiality breaches and timing that could rival the best plot twists, this court drama has all the elements of a hit '80s ballad. Will the duo find a way to harmonise once more, or is this the end of the road for Hall & Oates? We'll have to wait for the next verse in this legal serenade. In the meantime, keep those records spinning and maybe throw in some tissues for the emotional rollercoaster. It's a private affair gone public, and the fans are left wondering, "Did I miss the memo about this 'Global Divorce' album?" Image: Instagram

Legal

New royal book pulled from shelves over huge legal blunder

Copies of an explosive new book about the royal family are being pulled from shelves and destroyed after a translation error "accidentally named" the alleged "royal racist". Sales of the new book Endgame, written by Omid Scobie who also wrote Finding Freedom about Harry and Meghan's exit from the royal family, were "temporarily" put on hold just days after its release after what has been labelled an error. According to Xander, the publishers of the Dutch edition of Scobie's book, a translation error led to a member of the royal family being identified as the person who made comments about baby Archie's skin colour. “[We are] temporarily withdrawing the book by Omid Scobie from sale. An error occurred in the Dutch translation and is currently being rectified,” the company said in a statement on Tuesday. Meanwhile, <a href="https://www.thesun.co.uk/royals/24884315/royal-racist-accidentally-named-omid-scobie/" target="_blank" rel="noopener">The Sun</a> claims that thousands of copies of the book are now being destroyed as a result. The "racist royal" scandal dates back to when Prince Harry and Meghan Markle sat down with Oprah Winfrey for a tell-all interview in 2021, when Markle alleged that while she was pregnant with their first child, Prince Archie, there were “concerns and conversations” from a member of the royal family about how dark his skin might be. The Duchess of Sussex stopped short of naming the person involved, telling Winfrey, “I think that would be very damaging to them.” In the original edition of his book, Scobie also declines to identify the royal, claiming libel laws prevented him from doing so – although he has confirmed he knows who it is. “I do know who made the comments about Archie’s skin colour,” he told UK program Good Morning during his book press tour. “The names were mentioned in letters between Meghan and Charles that were exchanged sometime after the Oprah interview." “We know from sources that Charles was horrified that that’s how Meghan felt. Those conversations were, and that he wanted to, sort of as a representative for the family, have that conversation with her. “And it is why I personally think they have been able to move forward with some kind of line of communication afterwards. Though they may not see eye-to-eye on it.” It’s understood the royal family member accidentally named in the Dutch edition was not the person Meghan had been referring to. Image credits: Getty Images / Harper Collins

Books

Channel 10 newsreader admits to driving while four times over the legal limit

Natasha Exelby, a well-known journalist and former Channel 10 newsreader, recently found herself in the spotlight for an entirely different reason than her on-air mishap in 2017. On a fateful day last June, she was involved in a drink driving incident in Toorak, Melbourne. This incident marked a low point in her life, but it also sheds light on the profound impact of mental health struggles and the road to recovery. Exelby, 34, appeared before the Melbourne Magistrates' Court and made a candid admission: she had driven while suspended and under the influence of alcohol, registering a blood alcohol concentration of .220, over four times the legal limit. She narrowly escaped conviction but didn't escape the consequences of her actions. In her statement to the <a href="https://www.heraldsun.com.au/truecrimeaustralia/police-courts-victoria/journalist-natasha-exelby-busted-drink-driving-after-crashing-into-parked-car-while-four-times-over-legal-limit/news-story/f710cdbc849622fb4e298b61c049c1f3" target="_blank" rel="noopener">Herald Sun</a>, Exelby took full responsibility for her actions, citing her ongoing battle with major depression and post-traumatic stress disorder. She courageously acknowledged her struggles and the role they played in her regrettable choices that day. "It's no secret that I've suffered from major depression and post-traumatic stress disorder for many years," she said. "At the time of the incident, I was going through a very dark period with multiple medication changes. Never in my life did I think I would be capable of what happened but regardless of my mental health, my actions were shocking beyond words and I take full responsibility." Her journey towards this dark moment was marked by openness about her mental health. In September 2022, she appeared on Studio 10, where she revealed the depths of her internal battles. She discussed experiencing episodes of inexplicable crying, a common symptom of depression. This revelation was crucial in the context of R U OK? Day, emphasizing the importance of checking on the well-being of those around us. Natasha's admission serves as a stark reminder that mental health issues are every bit as valid as physical ailments. She compared her experience with depression to "drowning" and disclosed that she had been on medication and in therapy for major depression for years. Her message is clear: it's okay to seek help when battling these internal demons, and recovery is possible, even if it's a long and winding road. Exelby's struggle with mental health is by no means a recent development. She revealed that she had been dealing with major depression since the age of 15, highlighting the enduring nature of the condition. Her story is an inspiration for others who are going through similar challenges, proving that there is light at the end of the tunnel, even when it feels like the journey will never end. Before her battle with depression and her recent legal troubles, Exelby made headlines in 2017 for an <a href="https://www.news.com.au/entertainment/tv/flashback/one-year-later-why-natasha-exelby-isnt-haunted-by-abc-blooper/news-story/24398919d522c0029e6d7963f165897d" target="_blank" rel="noopener">on-air gaffe</a> during an ABC news broadcast. Despite the initial shock, she took the incident in stride, even finding humour in it and acknowledging the role that social media and celebrities like Russell Crowe played in making the video go viral. It was a moment of resilience and self-awareness that foreshadowed her future ability to face her own mental health struggles. Exelby's open honesty, her admission of her mistakes and her ongoing battle with mental health challenges is a reminder that anyone can face difficulties, regardless of their public persona. By sharing her experiences, Exelby is contributing to the ongoing conversation about mental health, helping to break down the stigma that often surrounds it. Images: Instagram

Legal

No gavels, no hearsay and lots of drinking: a law expert ranks legal dramas by their accuracy

<a href="https://theconversation.com/profiles/dale-mitchell-1468293">Dale Mitchell</a>, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a> From Elle Woods in Legally Blonde to <a href="https://www.tandfonline.com/doi/abs/10.1080/10383441.2015.1087367">Jennifer Walters in She-Hulk</a>, Atticus Finch in To Kill a Mockingbird to Denny Crane in Boston Legal, our popular culture is often where we first see and witness legal practice. Sometimes this comes via the silver screen, other times television. But it would be wrong to think that all we see on legal television shows is accurate – even when it claims to capture reality. Most legal dramas are terrible at capturing the realities of law. <h2>Not accurate: Law(less) and (dis)Order</h2> Law and Order (1990-) innovated television drama by showcasing both the investigation of a crime by police, and then its prosecution in court. With its multiple spin-offs, including Law and Order: Special Victims Unit (1999-) and the shortlived Law and Order: Trial by Jury (2005-2006) (which had the <a href="https://www.youtube.com/watch?v=aolG65V1Dx8">best theme song of all the series</a>), the Law and Order franchise is a televisual legal juggernaut. <figure><iframe src="https://www.youtube.com/embed/aolG65V1Dx8?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> As with most serials, Law and Order presents the criminal justice system as moving quicker than you can say dun dun. This couldn’t be further from the truth. The mean duration of criminal law matters in Australian higher courts was <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">almost one year</a> (50 weeks) across 2021-22. While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s5.html">procedural rules in civil matters</a> require courts to facilitate the “just and efficient resolution of disputes at minimum expense”, in criminal law, speed and efficiency must not be prioritised over accuracy: a person’s liberty is at stake. Most criminal matters do not proceed to a full trial as an accused will often plead guilty to the charges. As a result, the matter proceeds to sentencing without prosecutors needing to prove the offence. The rates of this occurring are quite alarming. <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">Data across 2021-22</a> reveals over 75% of defendants in Australian courts entered a guilty plea, and almost four in five criminal convictions (79%) resulted from a guilty plea. <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/1705761/32_1_8.pdf">Research suggests</a> defendants plead guilty for a variety of reasons, including to avoid the cost of a trial and to receive a lesser sentence. <a href="https://theconversation.com/pandemic-pushed-defendants-to-plead-guilty-more-often-including-innocent-people-pleading-to-crimes-they-didnt-commit-165056">Data from the United States</a> suggests the pressures of the pandemic led to innocent people pleading guilty to crimes they didn’t commit. If Law and Order was a more accurate reflection of criminal law, matters would proceed immediately to sentencing due to guilty pleas. And should an accused be found guilty, a chunk of their sentence would be reduced by time served awaiting trial. <figure><iframe src="https://www.youtube.com/embed/60GV5lv8h3o?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: Suits</h2> Suits (2011-19) centres around law firm partner Harvey Specter (Gabriel Macht) and his mentorship of Mike Ross (Patrick Adams) – the “lawyer” who never graduated law school and provides legal advice thanks to his photographic memory. This is, obviously, a brutal ethical breach for all involved, and clearly fraud. In Australia, law students who present themselves to be lawyers are <a href="https://www.abc.net.au/news/2016-09-07/law-graduate-jacob-reichman-fined-posing-solicitor-gold-coast/7824324">subject to sanctions</a> by the Legal Services Commission. They can <a href="https://www.lawyersweekly.com.au/biglaw/35821-fake-lawyer-cops-suspended-jail-sentence">cause harm to clients</a> who have hired their services. And the Legal Admissions Board may <a href="https://www.qlsproctor.com.au/2020/11/chief-justice-wants-answers-before-considering-lawyer-impersonators-bid-to-become-legal-practitioner/">deny their entry</a> into the profession. (Spoilers) Ross is eventually sentenced to two years in prison for this fraud, a similar sentence to <a href="https://www.law.com/thelegalintelligencer/almID/1202786675709/">a recent case in the United States</a>, but he only serves three months before solving a crime and earning early release. More unrealistic than this early release is that Ross does fairly quickly thereafter gain admission to the profession, which seems unlikely to occur so soon after such an act of fraud. While Suits has left its mark(le) on the popular imagination of law, it fails to address one of the primary duties of civil litigation: the duty of disclosure. The MacGuffin-ing of law is common in TV serials. It’s the “smoking gun” found on the day of the trial, or for the lawyers in Suits, the random document which shows up during the trial to turn the case - dramatically presented by our protagonists as they flail into court armed with this data sans ethics. This is not quite accurate. In adversarial legal systems like Australia, New Zealand, the UK and the US, civil litigation rules <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s211.html">require parties</a> to disclose to one another all documents in their possession or control which are directly relevant to a matter in dispute. This is a continuing duty, so if you discover such a document at any time during the case, it must be disclosed. While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s212.html">exceptions</a> based on various privileges may apply, this essentially means civil litigation must be run in an “all cards on the table” manner. Randomly producing undisclosed material at trial requires the leave of the court and may result in orders of contempt and <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s225.html">cost penalties</a>. It’s not like the lawyers of Suits have ever really been concerned about ethics, though. <figure><iframe src="https://www.youtube.com/embed/wUh9jomHZp4?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: How to Get Away with Murder(ing rules of evidence)</h2> While most lawyers would support making it a criminal offence to critique Viola Davis, How to Get Away with Murder (2014-20) presents one of the most common offences within legal dramas: the haphazard approach to rules of evidence. Annalise Keating (Davis) and her ragtag team of morally illiterate law students (although I never see them studying?!?!) manipulate people to obtain evidence and then dramatically prompt witnesses on the stand to read this information into the record, or otherwise “sneak” it into the trial. This is not accurate. And it ignores the basic reality that so much of legal practice is about not just obtaining evidence, but ensuring that evidence is admissible in court. One of the most important rules of evidence deals with <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s59.html">hearsay evidence</a>. A court cannot allow evidence to be considered if its reliability is unable to be interrogated. Witnesses can only present evidence that they saw, heard or perceived themselves. Unless an exception to the hearsay rule applies, such evidence would be inadmissible. Like in Suits, these approaches to presenting evidence may have serious implications. This poor trial management results in <a href="https://www.aic.gov.au/sites/default/files/2020-05/rpp074.pdf">delays to criminal trials.</a>. <figure><iframe src="https://www.youtube.com/embed/rMB_Gw5-T-I?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Fisk</h2> Fisk (2021-) follows Helen Tudor-Fisk (Kitty Flanagan), an established contract lawyer whose personal dramas lead her to move to the boutique Melbourne probate law firm of Gruber and Gruber (played by Marty Sheargold and Julia Zamero). Fisk excels in showing the importance of lawyer-client relations and the word-of-mouth that sustains much of small legal practice. It’s the anti-Suits, and Fisk is more powerful for it. The discussions of wills and estates and most basic legal principles in Fisk are mostly sound – and the show doesn’t need to get into “legalese” as matters are resolved out-of-court. This is a distinct reality of law: litigation is a last resort. Forms of <a href="https://www.qls.com.au/Practising-law-in-Qld/ADR/Alternative-Dispute-Resolution/Types-of-Alternative-Dispute-Resolution-(ADR)">alternative dispute resolution</a>, including mediation, negotiation and conciliation, have become the primary way of resolving legal disputes. Fuelled by <a href="https://www.ag.gov.au/legal-system/alternative-dispute-resolution/civil-dispute-resolution-act-2011">legislative changes</a> which require the exhaustion of alternative dispute resolution measures before proceeding to litigation, and a pursuit of reduced costs, the drama of trial is not something anyone should yearn for. <figure><iframe src="https://www.youtube.com/embed/N1Qt0Wo1gGo?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Rake</h2> Cleaver Greene, a character said to be loosely based on the career of a Sydney barrister, shows us the absolute madness of work as a “<a href="https://nswbar.asn.au/the-bar-association/senior-counsel#:%7E:text=Senior%20counsel%20are%20barristers%20who,a%20QC%20or%20queen's%20counsel.">silk</a>”. Rake excels at showing the reality of law. The show raises interesting and accurate questions of law (yes, it is true there is no <a href="https://opus.lib.uts.edu.au/bitstream/10453/18992/1/2011006119.pdf">explicit offence</a> of cannibalism in New South Wales) and presents Australian court process accurately. Thankfully, there’s not a gavel in sight. <a href="https://www.survivelaw.com/post/941-working-hardly-random-facts-about-the-gavel">Australian courts do not use gavels</a>, and their presence in legal dramas in Australian and UK courts shows a lack of attention to detail. The presence of the gavel as a symbol of justice is <a href="http://www5.austlii.edu.au/au/journals/NSWBarAssocNews/1994/17.pdf">an entirely American invention</a>. <figure><iframe src="https://www.youtube.com/embed/qWWI2EdOssk?wmode=transparent&start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> Rake is accurate, in part, because the site of drama is rarely the courtroom, but rather Greene’s personal life. The accuracy of that element for law I will leave up to the jury. But with a <a href="https://www.tandfonline.com/doi/abs/10.1080/13218719.2013.822783">2014 study</a> finding 35% of lawyers engaged in hazardous or harmful drinking and another showing <a href="https://www.abc.net.au/news/2019-08-15/study-finds-high-rates-anxiety-depression-in-legal-profession/11412832">high rates of anxiety and depression</a> in the legal profession, the evidence is compelling.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/212880/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/dale-mitchell-1468293">Dale Mitchell</a>, Lecturer in Law, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a> Image credits: Getty Images This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/no-gavels-no-hearsay-and-lots-of-drinking-a-law-expert-ranks-legal-dramas-by-their-accuracy-212880">original article</a>.

Legal

No, the Voice proposal will not be ‘legally risky’. This misunderstands how constitutions work

<a href="https://theconversation.com/profiles/william-partlett-708330">William Partlett</a>, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> The “no” campaign’s primary argument in the current referendum debate focuses on the dangerous consequences of a constitutionally enshrined Voice to Parliament. This argument is relevant to the parliamentary debate about how a constitutional Voice to Parliament will be set up through legislation. But it has no bearing on the referendum debate. This debate involves a different, moral question: do you support the idea of recognising First Australians in the Constitution by giving them a voice on matters that affect them? <h2>What exactly is the ‘no’ campaign arguing?</h2> Although the “no” campaign opposes a constitutionally enshrined Voice, some of its key leaders are not against the general idea of a Voice institution itself. Instead, many “no” campaigners, including Opposition Leader Peter Dutton, <a href="https://www.skynews.com.au/australia-news/voice-to-parliament/dutton-says-his-priority-remains-establishing-a-local-and-regional-voice/video/45255e2fa30463000b1111d7188db1aa">support</a> legislated Voice institutions at the regional level. The “no” side also does not oppose constitutional recognition for First Australians. Dutton has recently promised that if the Voice referendum fails, the Coalition would <a href="https://www.theguardian.com/australia-news/2023/sep/03/peter-dutton-says-coalition-will-hold-indigenous-recognition-referendum-if-voice-to-parliament-vote-fails">hold another referendum</a> on First Nations constitutional recognition if it is returned to power. The “no” side’s main argument, therefore, is a very specific one. It focuses on what it claims are the dangerous consequences of recognising First Australians by placing a Voice institution in the Australian Constitution. In its official campaign <a href="https://aec.gov.au/referendums/files/pamphlet/referendum-booklet.pdf">pamphlet</a>, the “no” side claims that doing this will: <ul> <li> be “legally risky” and lead to litigation </li> <li> “risk delay and dysfunction” in government </li> <li> be a “costly and bureaucratic” institution with “no issue beyond its scope”. </li> </ul> Finally, the “no” side claims the Albanese government has not put forth any details on how this Voice body would function, and it would be a “permanent” change that will open the door for “activists”. <h2>The nature of constitutions</h2> These concerns, however, fundamentally misunderstand how constitutions work. Constitutions are not detailed documents that anticipate every possible circumstance. On the contrary, they are by nature short and incomplete documents. They inherently contain large gaps. In Australia, the evolution of constitutional institutions has been primarily shaped by parliament through legislation. Take the constitutional provision creating the High Court as an example. The Constitution contains very little detail on how the High Court operates. It does not even specify how many justices will be on the court. It merely says: <blockquote> The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. </blockquote> Indeed, it was left to parliament to establish the jurisdiction and powers of the High Court in the <a href="https://www.legislation.gov.au/Details/C2016C00836">Judiciary Act</a> in 1903. And since then, parliament has passed numerous amendments that continue to shape the operation of the court, ensuring it continues to develop in line with the needs of contemporary Australian society. For instance, the court has <a href="https://www.hcourt.gov.au/about/history-of-the-high-court">increased</a> in size from three to seven justices in order to handle its increasing case load, which many in the early 20th century thought would be very light. <h2>The Voice to Parliament proposal</h2> The proposed Voice body will operate in the same way. The <a href="https://voice.gov.au/referendum-2023/referendum-question-and-constitutional-amendment">proposal</a> is typical of other clauses already in the Constitution – it contains little detail other than there “shall be a body” called the “Aboriginal and Torres Straits Islanders Voice” that will make “representations” to parliament. Details on how the body is selected and how it will operate are explicitly left to parliament. The final section of the proposed Voice provision <a href="https://voice.gov.au/referendum-2023/referendum-question-and-constitutional-amendment">states</a>: <blockquote> the parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures. </blockquote> If the October referendum vote is successful, it will be up to the current parliament to pass the foundational legislation setting up the Voice body. But this law will always be subject to change by subsequent parliaments. If there are problems with the way it functions, future parliaments can fix those issues through amending legislation (just as the functioning of the High Court has changed over time). The proposed constitutional Voice will, therefore, operate in much the same way as a legislated Voice would. In the end, both would be controlled by parliament. The various concerns of the “no” side are best suited to this legislative debate. For instance, it will be important to ensure the legislation creating the Voice does not lead to dysfunctional government or become a costly or ineffective bureaucracy. But the “no” side’s concerns have no bearing on the constitutional question we all must answer in the referendum. <h2>A moral question</h2> Instead, we face a clearer, moral question on October 14: do we support the idea of recognising First Australians in the Constitution by giving them a voice in matters that affect them? In answering this question, it is worth considering the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/">findings</a> of the Royal Commission into Aboriginal Deaths in Custody from more than 30 years ago. The commission linked the shocking number of First Australians dying in state custody to the historical fact that Aboriginal people have faced “deliberate and systematic disempowerment” for more than a century. It said: <blockquote> Decisions were made about them and for them and imposed upon them. </blockquote> Only First Nations empowerment, the report concluded, would overcome this disadvantage. This empowerment process began with a series of First Nations regional dialogues that ultimately called for a constitutionally enshrined Voice to Parliament in 2017. This empowerment is not real, however, until we heed this call.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/212696/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/william-partlett-708330">William Partlett</a>, Associate Professor, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Image credits: Getty Images This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/no-the-voice-proposal-will-not-be-legally-risky-this-misunderstands-how-constitutions-work-212696">original article</a>.

Legal

Brad Pitt and Angelina Jolie call it quits in epic legal battle

Angelina Jolie and Brad Pitt have reportedly chosen to settle their acrimonious legal dispute over their jointly owned French winery, Château Miraval, through mediation rather than pursuing further court battles. According to recent court filings obtained from TMZ, Jolie, 48, and Pitt, 59, have mutually agreed to attempt mediation as a means to resolve their disagreements concerning the future of Château Miraval. This development comes in the wake of allegations from Jolie's former investment company, Nouvel, accusing Pitt and other "co-conspirators" of trying to maintain control over Château Miraval by allegedly misusing and depleting its assets. The court documents claimed that Pitt had mismanaged the company's funds by directing substantial amounts towards personal endeavours, such as extravagant swimming pool renovations, repeated reconstruction of a staircase, and investing millions in restoring a recording studio. The legal dispute initially arose when Pitt filed a lawsuit against his former wife, claiming that she had sold her share of the winery to a Russian oligarch in 2021. According to a court filing, Pitt appeared upset over Jolie's decision to sell Nouvel to Stoli instead of him, and he allegedly failed to treat Nouvel as an equal partner in their business dealings. Furthermore, there were allegations that Pitt attempted to leverage the winery business to silence Jolie regarding the circumstances surrounding their divorce, which included allegations of abuse and disputes over child custody. Jolie had previously accused Pitt of physical abuse towards her and two of their children during a flight in 2016, leading to their separation later that same year. According to documents reported by the New York Times in 2022, Jolie's team claimed that Pitt engaged in a prolonged outburst during a flight from France to California in September 2016. The allegations included claims that Pitt had choked one of the children and struck another in the face, and had grabbed Jolie by the head and shaken her. In response to these accusations, Pitt's lawyer asserted that Pitt took responsibility for his actions but would not accept false claims against him. The actor has faced numerous personal attacks and misrepresentations throughout the legal proceedings. The former celebrity couple purchased Château Miraval, a picturesque country estate and winery located in the south of France, in 2008. Since then, it has become a focal point of their high-profile divorce. As they embark on the mediation process, both Angelina Jolie and Brad Pitt hope to find common ground and reach an amicable resolution to put an end to their protracted legal battle over Château Miraval. Images: CNN / Getty

Legal

"Is it even legal?": Outrage over pub's "sneaky" surcharge

A Sydney hotel has come under fire online after one customer exposed the popular venue for an unexpected - and apparently undeclared - “late night surcharge”. And after taking to Reddit, that same customer found a wave of support from users who agreed the additional fee was ridiculous, with some even questioning the legalities of it. And while they hadn’t initially revealed the name of the sneaky establishment, after a number of requests from fellow Redditors for a “name and shame”, they eventually disclosed that it had been Sydney’s iconic Oxford Hotel. They began their tale by sharing that they’d just been out with a friend, and had been buying “jugs of beer as rounds”. The first was “purchased at 9:18pm for $24.36”, and wasn’t an issue for the two friends. However, trouble arose at 10:37pm when the poster’s next round came about, and the total came in at $33.50. “I paid for it not looking at the price but Apple Pay has notifications when you pay for things,” they explained, “and I noticed the price difference in the notifications. “When I asked the same staff member who served me he said there was a ‘late night surcharge after 10pm’.” They went on to note that they’d never even heard of a late night surcharge before, and were dismayed by the “30% increase! Not exactly a small increase.” “There’s no signage to notify anyone of the fee after 10pm. I’ve never even heard of this practice in Australia,” they said, before asking whether anyone else had had a similar experience before, and “is it even legal?” When someone noted that “surcharges and semi-forced gratuities are becoming commonplace now unfortunately”, they suggested checking out menus beforehand to determine whether or not a particular establishment would be issuing additional fees. But as one user pointed out, the hotel in question didn’t list the late night charges anywhere on their website. Someone else said that while “late charge surcharging is nothing new”, what the customer had paid “seems somewhat excessive”. “Every time I go out in Sydney these days the whole experience just leaves a bad feeling because I feel like I've just been had by someone,” another said. “Ahh, the reverse happy hour. A sad hour, if you will,” one offered. “So sick of this. It needs to stop. Australian Culture is being killed before our eyes by these greedy establishments not willing to pay their staff living wages,” someone else lamented. And as one bartender added, “so many bars will bump their booze prices up at 10pm and midnight to ‘help pay for staff loading’, but won't actually pay their staff penalty rates. just a little bit of extra money for the big wigs”. Images: Facebook

Travel Trouble

Understanding legal jargon for your future

Confused by some of the legal jargon you continually come across in getting your affairs in order? If so, here’s some of the most common ones explained. Do you know the difference between a power of attorney and an enduring power of attorney? What about the meaning of an enduring guardianship? Or what an executor does? As you start to get your affairs in order and plan for your future, you’re bound to come across a handful of terms again and again, so it’s best to understand what you’re reading or hearing from your lawyer. Here’s a guide to some of the most common terms you’re likely to come across when planning ahead. Note there are quite a few differences between the States and Territories. Something that is called one thing in Victoria for example, may not be called the same thing in Tasmania. Advance health directive/Advance Care directive: Also called a living will and in the Northern Territory an Advance Personal Plan, this is a legal document that enables you to make decisions now about your medical treatment if you became sick or injured and you aren’t able to communicate your wishes or consent to treatment. If this happens, this bit of paper would effectively become your voice. Keep in mind, that an advance health directive would only come into effect if it applied to the treatment you required and only if you were unable to make reasoned decisions about a treatment when it was needed. The document could be a general statement of your wishes or it may give specific directions for various medical conditions and types of treatment that you do and don’t want. Medical staff can refer to this document if you were or became incapable of making the decisions yourself. Be aware however that advance directives are only legally binding on doctors in Queensland, South Australia and the Northern Territory. Beneficiary: A person or institution, such as a charity, who can receive part or all of something from a will or trust. You’ll see this word used quite a bit, particularly when your attorney drafts your will. Enduring guardianship or enduring power of guardianship: Where an enduring power of attorney allows your attorney to make decisions on your behalf when it comes to your assets, if you lose the capacity to make those decisions yourself, an enduring power of guardianship allows your guardian to make decisions on personal health and lifestyle options. It is another legal document that authorises a person of your choosing to make decisions on your behalf. Your appointed guardian cannot make decisions about your assets and finances. This person can however make decisions about where you live, the support services you have access to and the treatment you receive if you unable to do so yourself. In the ACT the functions of a guardian can be met by an attorney under a Power of Attorney. In South Australia, the functions of a guardian can be met by an Advance Care Directive. In Victoria and Western Australia, a guardian has some limitations on the decisions that he/she can make and can be overruled in relation to medical treatment decisions if you have appointed an enduring power of attorney (medical treatment) (in Victoria) or if you have made an Advance Health Directive (in Western Australia). In the ACT and Queensland, you cannot appoint a guardian, but you can appoint an attorney under a power of attorney who can make the same decisions as a guardian. Estate plan: Many of you may already know what an estate plan is or have one in place but for those who don’t, it’s basically a plan of where your assets are distributed at your passing. Generally, the key documents that will form your estate plan include: will (which could include one or more testamentary trusts), superannuation death benefit nominations, power of attorney, enduring power of guardianship and advance directive. If you have made a binding death benefit nomination for your superannuation or insurance policies, your nominated beneficiaries will override anyone outlined in your will. There are specific rules however in relation to fee you can nominate to receive your super. An effective estate plan can also pass control of other assets that you may not hold personally, such as assets held by family trusts and family companies. Executor: A person appointed by your will to administer your estate when you pass away. Basically, this person will make sure all of your debts are paid and that any assets and possessions you outlined in the will go to where you stipulated. The executor is nominated by you and becomes your legal personal representative. More than one executor can be nominated although if you do this, then you need to specify whether those executors must make joint decisions (they all agreed), or can make decisions on their own, or you include some other basis for how decisions will be made (for example by majority vote). An executor’s role generally involves notifying the beneficiaries, paying any outstanding taxes and debts, and distributing your assets as instructed in your will. Intestacy: This is the word used to describe when a person passes away without leaving a will. The person is said to have passed intestate. That person’s estate would then pass to specified next of kin according to a set statutory order. If no eligible recipients can be found for your estate to be passed on to, then according to the law, the state is entitled to keep everything. Basically, the biggest drawback to not making a will is that you have no say as to who inherits your assets. It’s also more expensive to administer an estate without a will, with the extra cost deducted from your assets. Power of attorney: If you’re planning on going overseas for a holiday or going to hospital for a month-long stay, it could be a good idea to make a power of attorney. By making a power of attorney you’re basically giving another person the authority to make legal decisions about your assets and finances on your behalf. You can limit the scope of a power of attorney, for example so that it only applies to specific assets or for a certain period of time. If you’re looking longer term when planning for your future, it may be better to make an enduring power of attorney. The difference between a power of attorney (also known as a general power of attorney) and an enduring power of attorney is that a general power of attorney will stop if you lose the capacity to make your own decisions. An enduring power of attorney (as the name suggests) will remain in place even if you lose the capacity to make your own decisions. In the ACT and Queensland, your attorney can also make the same decisions as a guardian in relation to personal health, medical and lifestyle decisions. In Victoria, you can appoint an enduring power of attorney (medical treatment), which will overrule any guardian that you may have appointed, in relation to medical treatment. In the Northern Territory, legislation was introduced starting from 1 July 2014, which means that you can no longer appoint an enduring power of attorney. Testamentary trust: This is a trust set up inside a will that only takes effect when the person who creates the will, passes away. The main benefit of a testamentary trust is to provide greater control over the distribution of assets which are held by the testamentary trust, to beneficiaries set out in the will. There are also tax and asset protection advantages to testamentary trusts, making them an effective estate planning tool for some people. It differs from a family trust which is created by deed and commences during your lifetime. The testamentary trust will be administered by a trustee who is usually appointed in the will and who must look after the assets for the benefit of the beneficiaries until the trust expires. This article is for general information only and cannot be relied on as legal advice. You should seek formal legal advice on your specific circumstances. Image credit: Shutterstock

Legal

ABC threatened with legal action over coronation coverage

The Australian Monarchist League have threatened to take legal action against the ABC over their coronation coverage, specifically the comments made on their hour-long special The Coronation: A discussion about the Monarchy in 2023. The programme, focussed on the monarchy’s relevance to Australia, featured The Drum’s Julia Baird and Jeremy Fernandez as hosts, with a panel that included the likes of Q&A host Stan Grant and Australian Republic Movement co-chair Craig Foster. Julian Leeser - a Liberal MP and monarchist - and Teela Reid - a Wiradjuri and Wailwan woman - were also involved. The coverage, which broadcast in Australia three hours before King Charles III’s coronation, faced a wave of criticism from the Australian Monarchist League, as well as 3AW radio host Neil Mitchell, ABC audiences, and Liberal MPs. And now, the AML have announced their intention to take their complaints further, with a statement from AML national chair Philip Benwell declaring that their “legal advisers are preparing a formal complaint to the board of the ABC in regard to the production and airing of Saturday's extremely biased pre-Coronation programme specifically designed to attack the Constitution and the Crown. Our Executive and others are meeting this week to formalise our approach. “So vitriolic are their attacks on the King, the monarchy, the British settlement and everything that came thereafter that they forget that they are the very people who want our vote for their Voice to the Parliament.” Brenwell noted that they were inviting “pertinent comments” regarding the broadcast to help compile their formal complaint, specifying that these should “include specific comments made during the programme by interviewers and panellists”. Neil Mitchell, radio host for 3AW, had a lot to say about the coverage too, noting his opinion that it had “misread the mood”, as well as his desire for the ABC to see the broadcaster held accountable. “Somebody in the ABC needs to be accountable for this,” he declared, “as the national broadcaster it should have been the place you go to see the coverage of the coronation, instead you see all this bitterness about our Indigenous history.” He also took the opportunity to point out that the panel had featured four individuals, with “three of them republicans”. The fourth - and only monarchist - Julian Leeser agreed that the broadcast had gotten “the balance wrong” when it came to their panel compilation. As Mitchell added, “to have only one of four panellists as supporters of our existing constitutional arrangements meant there was little opportunity for a panel discussion that reflected the warmth and respect Australians have for King Charles.” Images: Q&A

The legal matters you need to consider as you get older

Barbara Binland is the pen name of a senior, Julie Grenness, in Melbourne, Victoria, Australia. She is a poet, writer, and part-time English and Maths tutor, with over 40 years of experience. Her many books are available on Amazon and Kindle. As we are ageing, it is essential at some stage to be realistic and sort our legal affairs. This incorporates writing your last will and testament. It is an individual’s choice whether to use a will kit, or to engage a solicitor. We must decide on an executor of the will, to ensure any assets are disposed of, in accordance with our intentions. Secondly, it is an excellent idea to appoint a medical power of attorney to a trusted person, to factor in a case scenario if you are on life support. Someone needs a medical power of attorney to make tough decisions on your behalf. Thirdly, when writing your will, you need to list your beneficiaries. Moreover, you need to compile a file of your assets and investments. Furthermore, it is also a good intention to prepare any wishes for your funeral, burial or cremation. Do you wish to be an organ donor? Ultimately, if any doubts occur, it is always possible and feasible to seek advice from any legal professionals. Right, having done all that, it’s easy to think, “all sorted!” But remember, any golden oldie’s status can be affected by any change in circumstance, such as either health conditions, or by marriage, or divorce, or the death of a spouse. Then we may need to revise our will and testament. But, in the interim, put morbid thoughts to one side, that is all ‘worst case scenario’. Now we can plan for our happy and leisurely retirement, enjoying being ‘golden oldies’, anyway we choose! Here are the stats: 10/10 people are going to die, so appreciate being alive! Rise and smile! Image credit: Shutterstock

Legal

‘This case has made legal history’: young Australians just won a human rights case against an enormous coal mine

In a <a href="https://www.sclqld.org.au/caselaw/QLC/2022/21" target="_blank" rel="noopener">historic ruling</a>, a Queensland court has said the massive Clive Palmer-owned Galilee Basin coal project should not go ahead because of its contribution to climate change, its environmental impacts, and because it would erode human rights. <a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732" target="_blank" rel="noopener">The case</a> was mounted in 2020 by a First Nations-led group of young people aged 13 to 30 called Youth Verdict. It was the first time human rights arguments were used in a climate change case in Australia. The link between human rights and climate change is being increasingly recognised overseas. In September this year, for example, a United Nations <a href="https://theconversation.com/australia-violated-the-rights-of-torres-strait-islanders-by-failing-to-act-on-climate-change-the-un-says-heres-what-that-means-191329" target="_blank" rel="noopener">committee decided</a> that by failing to adequately address the climate crisis, Australia’s Coalition government violated the human rights of Torres Strait Islanders. Youth Verdict’s success today builds on this momentum. It heralds a new era for climate change cases in Australia by youth activists, who have been frustrated with the absence of meaningful federal government policy. <h2>1.58 billion tonnes of emissions</h2> The Waratah Coal mine operation <a href="https://www.sbs.com.au/nitv/article/the-first-nations-group-fighting-clive-palmers-mining-project/6xbg2e81w" target="_blank" rel="noopener">proposes to</a> extract up to 40 million tonnes of coal from the Galilee Basin each year, over the next 25 years. This would <a href="https://www.theguardian.com/australia-news/2022/nov/25/court-finds-clive-palmers-queensland-coalmine-will-harm-future-generations-in-landmark-climate-ruling?CMP=share_btn_tw" target="_blank" rel="noopener">produce</a> 1.58 billion tonnes of carbon emissions, and is <a href="https://www.abc.net.au/news/2019-12-05/galilee-basin-farmers-object-to-palmer-mine/11764540" target="_blank" rel="noopener">four times more</a> coal extraction than Adani’s operation. While the project has already received approval at the federal government level, it also needs a state government mining lease and environmental authority to go ahead. Today, Queensland land court President Fleur Kingham has recommended to the state government that both entitlements be refused. In making this recommendation, Kingham reflected on how the global landscape has changed since the Paris Agreement in 2015, <a href="https://theconversation.com/carmichael-mine-jumps-another-legal-hurdle-but-litigants-are-making-headway-69423" target="_blank" rel="noopener">and since the last major challenge</a> to a mine in Queensland in 2016: Adani’s Carmichael mine. She drew a clear link between the mining of this coal, its ultimate burning by a third party overseas, and the project’s material contribution to global emissions. She concluded that the project poses “unacceptable” climate change risks to people and property in Queensland. The Queensland <a href="https://www.legislation.qld.gov.au/view/html/asmade/act-2019-005" target="_blank" rel="noopener">Human Rights Act</a> requires a decision-maker to weigh up whether there is any justifiable reason for limiting a human right, which could incorporate a consideration of new jobs. Kingham decided the importance of preserving the human rights outweighed the potential A$2.5 billion of economic benefits of the proposed mine. From a legal perspective, I believe there are four reasons in particular this case is so significant. <h2>1. Rejecting an entrenched assumption</h2> A major barrier to climate change litigation in Queensland has been the “<a href="https://theconversation.com/landmark-rocky-hill-ruling-could-pave-the-way-for-more-courts-to-choose-climate-over-coal-111533" target="_blank" rel="noopener">market substitution assumption</a>”, also known as the “perfect substitution argument”. This is the assertion that a particular mine’s contribution to climate change is net zero, because if that mine doesn’t supply coal, then another will. Kingham rejected this argument. She noted that the economic benefits of the proposed project are uncertain with long-term <a href="https://www.iea.org/news/world-energy-outlook-2022-shows-the-global-energy-crisis-can-be-a-historic-turning-point-towards-a-cleaner-and-more-secure-future" target="_blank" rel="noopener">global demand</a> for thermal coal set to decline. She observed that there’s a real prospect the mine might not be viable for its projected life, rebutting the market substitution assumption. This is an enormous victory for environmental litigants as this was a previously entrenched argument in Australia’s legal system and policy debate. <h2>2. Evidence from First Nations people</h2> <a href="https://www.sbs.com.au/nitv/article/on-country-evidence-in-landmark-case-against-clive-palmers-coal-project/6eiueghuy" target="_blank" rel="noopener">It was also the first time</a> the court took on-Country evidence from First Nations people in accordance with their traditional protocols. Kingham and legal counsel travelled to Gimuy (around Cairns) and Traditional Owners showed how climate change has directly harmed their Country. As Youth Verdict co-director and First Nations lead Murrawah Johnson <a href="https://www.edo.org.au/2022/04/20/landmark-hearing-into-clive-palmers-galilee-coal-project-legal-challenge-begins/" target="_blank" rel="noopener">put it</a>: We are taking this case against Clive Palmer’s Waratah Coal mine because climate change threatens all of our futures. For First Nations peoples, climate change is taking away our connection to Country and robbing us of our cultures which are grounded in our relationship to our homelands. Climate change will prevent us from educating our young people in their responsibilities to protect Country and deny them their birth rights to their cultures, law, lands and waters. This decision reflects the court’s deep engagement with First Nations’ arguments, in considering the impacts of climate change on First Nations people. <h2>3. The human rights implications</h2> In yet another Australian first, the court heard submissions on the human rights implications of the mine. The Land Court of Queensland has a unique jurisdiction in these matters, because it makes a recommendation, rather than a final judgment. This recommendation must be taken into account by the final decision-makers – in this case, the Queensland resources minister, and the state Department of Environment and Science. <a href="https://archive.sclqld.org.au/qjudgment/2020/QLC20-033.pdf" target="_blank" rel="noopener">In an earlier proceeding</a>, Kingham found the land court itself is subject to obligations under Queensland’s Human Rights Act. This means she must properly consider whether a decision to approve the mine would limit human rights and if so, whether limits to those human rights can be demonstrably justified. Kingham found approving the mine would contribute to climate change impacts, which would limit: <ul> <li>the right to life</li> <li>the cultural rights of First Nations peoples</li> <li>the rights of children</li> <li>the right to property and to privacy and home</li> <li>the right to enjoy human rights equally.</li> </ul> Internationally, there are <a href="https://theconversation.com/mass-starvation-extinctions-disasters-the-new-ipcc-reports-grim-predictions-and-why-adaptation-efforts-are-falling-behind-176693" target="_blank" rel="noopener">clear links</a> made between climate change and human rights. For example, climate change is worsening heatwaves, risking a greater number of <a href="https://theconversation.com/how-hot-is-too-hot-for-the-human-body-our-lab-found-heat-humidity-gets-dangerous-faster-than-many-people-realize-185593" target="_blank" rel="noopener">deaths</a>, thereby affecting the right to life. <h2>4. A victory for a nature refuge</h2> Kingham also considered the environmental impacts of the proposed mine on the <a href="https://bimblebox.org/about/" target="_blank" rel="noopener">Bimblebox Nature Refuge</a> – 8,000 hectares semi-arid woodland, home to a recorded 176 bird species, in the Galilee Basin. She deemed these impacts unacceptable, as “the ecological values of Bimblebox [could be] seriously and possibly irreversibly damaged”. She also observed that the costs of climate change to people in Queensland have not been fully accounted for, nor have the costs of mining on the Bimblebox Nature Refuge. Further, she found the mine would violate Bimblebox Alliance’s right to family and home. <h2>Making history</h2> This case has made legal history. It is the first time a Queensland court has recommended refusal of a coal mine on climate change grounds, and the first case linking human rights and climate change in Australia. As Kingham concluded: <blockquote> Approving the application would risk disproportionate burdens for future generations, which does not give effect to the goal of intergenerational equity. </blockquote> The future of the project remains unclear. But in a year marked by climate-related disasters, the land court’s decision offers a ray of hope that Queensland may start to leave coal in the ground. This article originally appeared on <a href="https://theconversation.com/this-case-has-made-legal-history-young-australians-just-won-a-human-rights-case-against-an-enormous-coal-mine-195350" target="_blank" rel="noopener">The Conversation</a>. Image: The Conversation

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