The WORKING WITH CHILDREN’S CHECK (more commonly merely referred to as a ‘WWCC’) is a crucial safeguard in Victoria, designed to protect children from harm by ensuring that individuals who work or volunteer with children are thoroughly vetted. However, there are instances where an application for a WWCC may be unfairly refused, or an existing check may be cancelled without proper reasoning.
Understanding the grounds for refusal or cancellation, the process involved, and the options available for review or appeal is essential for anyone affected by such decisions.
A refusal or cancellation of a WWCC can have significant consequences, including employment restrictions, damage to reputation, and other legal obligations. It is crucial for those impacted to understand the rationale behind such determinations and be aware of the appropriate course of action to take thereafter.
The Department of Justice and Community Safety in Victoria is responsible for administering the WWCC. The decision to refuse or cancel a WWCC is not taken lightly and is based on a thorough assessment of the applicant’s or cardholder’s suitability to work with children and any risks they may pose. Common REASONS FOR REFUSAL OR CANCELLATION include:
CRIMINAL HISTORY
If an individual has a CRIMINAL HISTORY that includes serious offences such as sexual offences, violent crimes, or drug-related offences, their application may be refused, or their existing check may be cancelled. The nature and severity of the offence, the time elapsed since the offence, and the individual’s behaviour since the offence are all considered.
PROFESSIONAL MISCONDUCT
Instances of PROFESSIONAL MISCONDUCT, especially in roles involving children, can lead to refusal or cancellation. This includes disciplinary actions taken by professional bodies or regulatory authorities.
OTHER RELEVANT INFORMATION
Any other RELEVANT INFORMATION that raises concerns about the individual’s suitability to work with children, such as adverse findings in family law proceedings or intervention orders, can also be grounds for refusal or cancellation.
If an individual disagrees with the decision to refuse or cancel their WWCC, they have the option to escalate the matter through REVIEW AND APPEAL, which will follow the process outlined below in accordance with the specific circumstances of that individual’s matter.
STEP 1: Internal Review
The first step is to request an INTERNAL REVIEW by the Department of Justice and Community Safety. This involves submitting a written request outlining the reasons for the review and providing any additional information or evidence that may support the case. The internal review is conducted by a different officer who was not involved in the original decision.
STEP 2: External Review
If the internal review does not result in a favourable outcome, the individual can apply to the Victorian Civil and Administrative Tribunal (or ‘VCAT’) for an external review. VCAT is an independent tribunal that can review the decision and make a determination based on the evidence presented. The application to VCAT must be made within 28 days of receiving the internal review decision.
STEP 3: Judicial Review
In some cases, it may be possible to seek a JUDICIAL REVIEW of the decision in the Supreme Court of Victoria. This is a more complex and costly process, typically reserved for cases where there are significant legal or procedural issues. It is important to note that should you pursue judicial review, the court reviewing the matter will likely be unable to make a ‘fresh’ decision. Rather, if you are successful in the review, they will remit the matter back to the Department of Justice and Community Safety to reassess make a new decision properly..
When preparing for a review or appeal, it is essential to gather and present all relevant information and evidence that supports the case. This may include:
Contact our team at Sambi Legal today to redeem a free Initial Consult, and discuss how an experienced legal team can support you throughout this process.
The WORKING WITH CHILDREN’S CHECK (more commonly merely referred to as a ‘WWCC’) is a vital protective measure in New South Wales, aiming to shield children from harm by meticulously screening individuals involved in work or volunteering with them. Despite its importance, there are occasions when an applicant’s WWCC request may be denied, or an already issued WWCC may be revoked.
A refusal or cancellation of a WWCC can have significant consequences, including employment restrictions, damage to reputation, and other legal obligations. It is crucial for those impacted to understand the rationale behind such determinations and be aware of the appropriate course of action to take thereafter.
The Office of the Children’s Guardian (or the ‘OCG’) in New South Wales is responsible for administering the WWCC. The decision to refuse or cancel a WWCC is not taken lightly and is based on a thorough assessment of the applicant’s or cardholder’s suitability to work with children and any risks they may pose. Common REASONS FOR REFUSAL OR CANCELLATION include:
CRIMINAL RECORD
If an applicant has a CRIMINAL RECORD that includes serious offences, particularly those involving children, their application may be refused. This includes convictions for sexual offences, violence, or drug-related crimes.
DISCIPLINARY PROCEEDINGS
If an individual has been the subject of DISCIPLINARY PROCEEDINGS by a professional body, such as a teaching or medical board, this may impact their WWCC status.
RISK ASSESSMENT
The OCG conducts a RISK ASSESSMENT to determine whether an individual poses a risk to the safety of children. This assessment considers various factors, including the nature and circumstances of any offences, the time elapsed since the offences, and the individual’s behaviour since.
FALSE OR MISLEADING INFORMATION
Providing FALSE OR MISLEADING information in the WWCC application can lead to refusal or cancellation.
When the OCG decides to refuse or cancel a WWCC, the individual will receive a notification outlining the reasons for the decision. This notification will also inform the individual of their right to seek a review of the decision.
If an individual disagrees with the decision to refuse or cancel their WWCC, they have the option to escalate the matter through REVIEW, which will follow the process outlined below in accordance with the specific circumstances of that individual’s matter.
STEP 1: Internal Review
The first step in challenging a refusal or cancellation is to request an INTERNAL REVIEW by the OCG. The individual must submit a written request for an internal review within 28 days of receiving the notification. The request should include any additional information or evidence that may support the individual’s case.
During the internal review, the OCG will re-examine the decision, considering any new information provided. The outcome of the internal review will be communicated to the individual in writing.
STEP 2: NSW Administrative & Civil Tribunal Review
If the internal review upholds the original decision, the individual has the option to seek a further review by the NSW Civil and Administrative Tribunal (or ‘NCAT’). The application to NCAT must be made within 28 days of receiving the outcome of the internal review.
NCAT is an independent body that reviews administrative decisions made by NSW government agencies. During the NCAT review, the individual can present their case, including any new evidence or arguments.
When lodging an NCAT application, an applicant must articulate the grounds for the review and should include supporting evidence. The NCAT review process will likely culminate in a formal hearing in which both the applicant (or their representative) and the OCG present their case and make submissions. NCAT will consider the merits of the case and make a determination.
When preparing for a review or appeal, it is essential to gather and present all relevant information and evidence that supports the case. This may include:
Navigating the review process can be complex, and seeking legal assistance is advisable. We at Sambi Legal can help you understand your rights, prepare your case, and represent you during the review process. Contact our team at Sambi Legal today to redeem your free Initial Consult, and discuss how our experienced legal team can support you throughout this process.
Australian Consumer Law (ACL) provides individuals with various rights and businesses with corresponding responsibilities. Understanding the differences and requirements for consumer warranties is essential. This article explores the key aspects of consumer warranties under the ACL.
Consumer warranties are promises or guarantees that a business makes regarding the condition and performance of a product. The following elements are considered for this pathway:
To be eligible for consumer warranties, the following criteria must be met:
Consumer warranties cover various aspects of goods and services, ensuring they meet certain standards:
If a business breaches consumer warranties, consumers are entitled to remedies. The following elements are considered for remedies:
For minor failures to comply with consumer warranties, the business can choose to:
For major failures, consumers have the right to choose their remedy. A major failure occurs when:
For major failures, consumers can:
Understanding consumer warranties under Australian Consumer Law is essential for both consumers and businesses. Consumer warranties provide comprehensive protection, ensuring that goods and services meet specific standards. Compliance with the ACL ensures fair trading practices and protects consumer rights.
For more information or assistance with consumer law matters, please contact Sambi Legal.
Navigating the complexities of legal disputes involving MALICIOUS PROSECUTION, UNLAWFUL ARREST, and FALSE IMPRISONMENT requires expertise, experience, and a deep understanding of the law.
Our team is adept at navigating the intricacies of the administrative law aspects of the criminal justice system in Australia. We specialise in representing clients who have been wronged by law enforcement or other authorities. Our dedicated lawyers are committed to providing strategic and personalised legal advice to ensure that your rights are protected, and justice is served – the way it should be.
MALICIOUS PROSECUTION occurs when legal action is initiated against an individual without reasonable grounds and with a malicious intent, resulting in harm to the person’s reputation, livelihood, or freedom.
Malicious prosecution can sometimes involve charges related to actual bodily harm, which further complicates the legal process. In such cases, it is crucial to demonstrate that the defendant restrained the alleged victim against their will, which can involve physical restraint or threats.
This type of abuse of the legal process can have devastating consequences, not just in terms of financial loss but also emotional distress and damage to one’s reputation.
MALICIOUS PROSECUTION occurs when legal action is initiated against an individual without reasonable grounds and with a malicious intent, resulting in harm to the person’s reputation, livelihood, or freedom.
Malicious prosecution can sometimes involve charges related to actual bodily harm, which further complicates the legal process. In such cases, it is crucial to demonstrate that the defendant restrained the alleged victim against their will, which can involve physical restraint or threats.
This type of abuse of the legal process can have devastating consequences, not just in terms of financial loss but also emotional distress and damage to one’s reputation.
RACIAL PROFILING is a form of discrimination that occurs when law enforcement officials (such as Police Officers) target individuals for suspicion of crime based on their race, ethnicity, or nationality.
If you have been racially profiled, or if you have experienced police misconduct in any other form, you may be entitled to compensation – or other remedies. It is important to discuss your circumstances with a legal professional who is well-versed in malicious prosecution, to ensure that you obtain the justice you deserve.
At Sambi Legal, we are committed to fighting against racial profiling and other forms of police misconduct. Our lawyers have extensive experience in handling cases involving wrongful prosecution, unlawful arrest, and police profiling. We understand the challenges faced by victims of racial profiling and are dedicated to holding those responsible accountable; while ensuring that you are well-positioned to move on, no longer burdened by the weight of your experience.
Put simply, COMPENSATION can be explained as the money you are entitled to when you have been wronged, usually from the person or party who has wronged you.
Victims of unlawful arrest, false imprisonment, and malicious prosecution may be entitled to compensation for the harm they have suffered.
Being wrongfully charged with a criminal offence can lead to significant personal and professional harm, making it essential to seek compensation for the damages suffered. This compensation can cover various damages, including loss of income, emotional distress, and damage to reputation.
Ideally, anybody seeking compensation for malicious prosecution, false imprisonment, and/or unlawful arrests should find a lawyer that they can trust will thoroughly evaluate the circumstances in full; to determine the extent of your damages and pursue the maximum compensation available, under the law.
At Sambi Legal, our approach is client-focused, ensuring that your case is handled with the utmost care and professionalism. We are here to provide the legal support you need to navigate the complexities of the justice system and secure the outcome you deserve.
Police Officers and law enforcement as a whole, have a duty to uphold the law – but sometimes, they overstep. When this overstepping of boundaries occurs, it can result in serious violations of YOUR RIGHTS.
In cases of police misconduct, it is crucial to establish that the defendant acted with intent and malice, which can significantly impact the outcome of the case.
If you believe you have been a victim of police misconduct, it is essential to seek legal advice as soon as possible. At Sambi Legal, you are entitled to a free Initial Consult with one of our experienced lawyers – so you know what to expect, before you pay. Contact us today to arrange a discussion, and move on from your suffering with support you can trust.
Our office is connected with a variety of Personal Injury and Criminal Law firms who we often work alongside in the interests of simplifying our client’s legal journeys; and ensuring they receive top-quality representation and advice no matter what. By working with Sambi Legal and one of our partnered firms, you can be confident that both of your legal teams have a comprehensive understanding of your matter; and you can avoid the exhaustion of repeating your stories endlessly, to various professionals.
When you’re faced with a situation involving police misconduct, or MALICIOUS PROSECUTION, it can sometimes feel as if you are pushing a boulder up a mountain. Being overwhelmed by your experience is normal, and not knowing where you stand can compound those feelings quickly and intensely.
Below, you will find a list of FREQUENTLY ASKED QUESTIONS that our team at Sambi Legal has prepared based on our experiences with clients seeking assistance in the area of Malicious Prosecution.
Contact us today to arrange a free Initial Consultation with one of our lawyers experienced in Malicious Prosecution – and see how we can help you move forward with your life.
Yes, you can sue for wrongful arrest in Australia.
If you have been arrested without lawful justification, you may be entitled to seek compensation for the harm you have suffered. This can include damages for false imprisonment, emotional distress, loss of income, and damage to your reputation. Decisions made by the local court can significantly impact the outcome of claims for wrongful arrest, particularly in cases where evidence is lacking
The best way to know if an arrest was carried out unlawfully, is to contact a legal professional for their opinion.
An arrest may be deemed unlawful if it is carried out without lawful authority, such as a warrant, or if the arresting officer does not have reasonable grounds to believe that the individual has committed an offence.
Additionally, if the arresting officer uses excessive force or violates the individual’s rights during the arrest, it may also be considered unlawful.
Australian Citizens have the right to be treated fairly and with respect by police officers.
This includes the right to be informed of the reason for an arrest, the right to remain silent, and the right to legal representation. If a police officer violates these rights, you may have grounds to file a complaint or take legal action against them.
Yes, you can sue the Police in Australia, if you believe they have acted unlawfully and/or violated your rights – but it can get complicated.
Police acting unlawfully and/or violating your rights may include cases of false imprisonment, unlawful arrest, racial profiling, or malicious prosecution.
If you do sue the Police, the Trial Judge will assess the evidence and legal arguments presented to determine whether the police acted unlawfully. Successful legal action against the police can result in compensation for the damages you have suffered.
Our lawyers at Sambi Legal are experienced in handling cases against law enforcement and can guide you through the process of seeking justice.
False imprisonment occurs when an individual is unlawfully detained or confined against their will without legal justification.
False imprisonment can occur in a variety of ways, such as being detained by the police without proper authority or being held by another individual or entity without consent. False imprisonment is a very serious offence, with significant legal consequences for those found guilty. It is a serious violation of personal freedom, and victims may be entitled to compensation – therefore it is very important to seek the advice of a legal
We understand the emotional and financial toll that these situations can take, and we are committed to standing by your side every step of the way. Our expertise in handling cases of police misconduct, wrongful arrest, and malicious prosecution has earned us a reputation for excellence in the legal community. We are dedicated to providing our clients with the highest level of legal representation and support, ensuring that your case is handled with care, precision, and a focus on achieving the best possible outcome.
If you or a loved one has been a victim of malicious prosecution, false imprisonment, or any other form of police misconduct, don’t hesitate to contact our team at Sambi Legal to discuss your matter and explore your legal options in a free Initial Consult.
Please note that contacting our office will not establish a lawyer-client relationship.
Any information you provide when you contact us will be treated as confidential, but it does not create an attorney-client relationship and should not be considered legal advice unless you choose to engage our ongoing services at the end of your Initial Consult..
If you are unhappy with a Decision you’ve received from the National Disability Insurance Scheme (‘NDIS’), you may be considering engaging in an NDIS APPEAL. It’s important to know that if you do decide to proceed with an NDIS Appeal, you may need to prepare for a difficult journey. With so much going on, it can be easy to get lost in your matter – especially, if you aren’t supported by the right legal team for you.
To ease some of these concerns, Sambi Legal’s experienced NDIS lawyers have prepared the following insights to highlight and clarify the KEY ELEMENTS OF NDIS APPEALS.
EVIDENCE plays a crucial role in NDIS appeals. It is important to gather comprehensive and relevant evidence to support your case. This may include medical reports, assessments, and other documentation that demonstrates your need for the requested supports or services.
A good legal team will help you identify and gather the necessary evidence, ensuring that your case is well-supported.
TIMELINESS is crucial in NDIS appeals. There are strict deadlines for requesting reviews and filing appeals, so it is important to act quickly.
Your lawyers should ensure that all deadlines are met, helping you navigate the process efficiently and effectively. If you don’t feel confident that your lawyers have done this, you should contact alternative legal representatives for their opinion and advice.
Preparing for the your HEARING at the Administrative Reviews Tribunal (the ‘ART’) is a critical step in the Appeals process.
Our lawyers agree that it is vital for your legal representation to work hand-in-hand with you to develop a strategy, prepare your testimony, and ensure that all necessary documentation is submitted. A strong legal team will also make sure you are confident and comfortable in your lawyer’s ability to represent you at the Hearing, presenting your case effectively and advocating for your rights so that you don’t have to.
Returning to normalcy AFTER THE HEARING can be an intense emotional experience, no matter the circumstances.
Our team at Sambi Legal have curated an approach to NDIS matters that focuses on our client’s ongoing best interests – meaning the support doesn’t end just because the Hearing does.
After the hearing, we will continue to support you, following up on the outcome and assisting with any necessary steps to implement the decision. Whether you receive a favourable outcome or need to pursue further action, our team is here to provide ongoing support and guidance personalised to your goals and desires.
Dealing with the NDIS (shorthand for the NATIONAL DISABILITY INSURANCE SCHEME) can get complicated, fast. When it comes to NDIS DECISIONS, fairness and justice are paramount.
At Sambi Legal, our dedicated team of NDIS lawyers is committed to providing comprehensive legal services to help individuals and families navigate the complex process of addressing NDIS refusals. We offer expert legal advice, strategic advice, and unwavering support to ensure your rights are protected and upheld.
Dealing with the NDIS (shorthand for the NATIONAL DISABILITY INSURANCE SCHEME) can get complicated, fast. When it comes to NDIS DECISIONS, fairness and justice are paramount.
At Sambi Legal, our dedicated team of NDIS lawyers is committed to providing comprehensive legal services to help individuals and families navigate the complex process of addressing NDIS refusals. We offer expert legal advice, strategic advice, and unwavering support to ensure your rights are protected and upheld.
Generally, the best thing to do is to contact a legal professional as soon as possible after you receive a Refusal. We at Sambi Legal understand the importance of having a strong advocate for your rights and well-being throughout each stage of the NDIS appeals process.
We have represented clients in NDIS reviews and appeals proceedings, working collaboratively with them to ensure their views are heard, their rights are upheld, and they receive the supports and services they deserve. Our team is well-versed in the review process, emphasising the accessibility, non-adversarial nature, and support services available during the review of NDIA decisions.
When it comes to better understanding what pathways you may follow if you proceed with an Appeal, there may be several options available to you, including:
Appealing the Decision by requesting an independent review from the Administrative Review Tribunal (‘ART’). Before accessing the NDIS Appeals Program, individuals need to have already applied to the NDIA for an internal review and received an outcome.
Seeking a judicial review through court proceedings.
Lodging a complaint with the NDIA.
Engaging in informal negotiation to resolve the dispute.
The second element of a binding contract is INTENTION. Essentially, intention refers to the requirement that the parties intended to be legally bound to the terms of the agreement; and that the nature of the agreement is not merely social.
In determining whether the parties had this intention, our office tends to start by considering the following factors comprehensively (although it’s important to remember that many other factors are often at play; and therefore may influence whether an agreement can be considered a Contract):
What the agreement is and whether it is of high value.
Whether the agreement was made socially or commercially.
The relationship between the parties.
The nature of the relationship, whether the parties are independent and have capacity.
Specifically, the conduct of the parties after the agreement has been made. This factor basically considers whether the parties, after forming an agreement, proceed to act in a way that suggests they considered that agreement to be legally binding after its formation.
The type of language used to form the contract.
If your friend offers to help you do some housework in exchange for lunch and you both agree, there is unlikely to be any intention for it to be legally binding – even though an offer has clearly been made and accepted, and therefore satisfies the definition of an agreement.
The process of appealing an NDIS decision can be daunting, but understanding each step can help you feel more confident and prepared. Our team at Sambi Legal has worked to break down the process into manageable steps and provide you with clear guidance at each stage.
Before escalating to an external appeal, you must request an internal review from the NDIA.
This step involves asking the NDIA to reconsider their initial decision. Our lawyers can help you prepare a compelling case for this internal review, increasing the chances of a favourable outcome.
If the internal review does not result in a satisfactory outcome, the next step is to file an appeal with the Administrative Review Tribunal (‘ART’). This appeal will result in a MERITS REVIEW.
The ART will conduct the Merits Review, which means they will re-evaluate the decision based on the evidence and arguments presented.
If you engage Sambi Legal, our lawyers will help you prepare and submit the necessary documentation, represent you at the hearing, and advocate for your rights throughout the entire Merits Review process.
In some cases, a JUDICIAL REVIEW may be necessary. This involves seeking a review of the Decision through Court proceedings.
Judicial Reviews are generally more complex than Merits Reviews, and require a thorough understanding of legal principles and procedures.
Our experienced lawyers are equipped to handle these cases and provide you with the legal support you need – and our Legal Practice Director specialises in Judicial Review, so you know you’re in the right hands.
Appealing through the review process outlined above can be daunting, and expensive… and often, unnecessary. There are alternative pathways to resolving your NDIS Decision, which experienced lawyers can also assist you with.
Lodging a complaint with the NDIA can be an effective way to address issues without formal appeals. Our team can assist you in drafting and submitting a complaint, ensuring that your concerns are clearly articulated and supported by evidence.
Engaging in informal negotiations to resolve disputes can often lead to quicker and less adversarial outcomes. Our lawyers can facilitate these negotiations, helping you reach a resolution that meets your needs without the need for a formal hearing.
Ultimately, your legal journey must be your legal journey. We recommend reflecting on your goals and motivations in appealing the Decision, to assist you in identifying the best approach for you.
Speak with a member of our team for free, and get a better understanding of your situation, by contacting us today.
A CONTRACT is a legally enforceable agreement, or promise, made between two or more ‘parties’. It does not matter whether a Contract is made in writing, or verbally.
While Contracts can take many forms, including Employment Contracts and Lease Agreements, all forms of a Contract require three elements in order to be legally binding on the parties:
Additionally, many assessments of Contracts include consideration of another, unofficial ‘Fourth Element’ of a Contract: Capacity & Formality.
The second element of a binding contract is INTENTION. Essentially, intention refers to the requirement that the parties intended to be legally bound to the terms of the agreement; and that the nature of the agreement is not merely social.
In determining whether the parties had this intention, our office tends to start by considering the following factors comprehensively (although it’s important to remember that many other factors are often at play; and therefore may influence whether an agreement can be considered a Contract):
What the agreement is and whether it is of high value.
Whether the agreement was made socially or commercially.
The relationship between the parties.
The nature of the relationship, whether the parties are independent and have capacity.
Specifically, the conduct of the parties after the agreement has been made. This factor basically considers whether the parties, after forming an agreement, proceed to act in a way that suggests they considered that agreement to be legally binding after its formation.
The type of language used to form the contract.
If your friend offers to help you do some housework in exchange for lunch and you both agree, there is unlikely to be any intention for it to be legally binding – even though an offer has clearly been made and accepted, and therefore satisfies the definition of an agreement.
The final formally recognised element off Contract formation comes in the form of CONSIDERATION. Consideration, an often overlooked yet crucial element of binding Contract, is essentially the word used to describe the ‘something’ given in return for an offer.
Put simply, according to Contract Law, a person who seeks to get something must also give something in exchange.
For an Employment Contract, the Consideration is usually the work being completed by the employee; in exchange for payment/renumeration… Whereas in a Lease Agreement, the Consideration is the rent paid to the lessor by the lessee, in exchange for the lessee’s ongoing access to a property or part of a property.
The consideration must be in the form of what has been agreed upon between the parties and, whilst the benefit of the Consideration does not have to be directly received by the Promisor (person who made the offer), it must pass from the Promisee (person who accepted the offer).
In other words, a Promisee must provide Consideration either to the Promisor (or, if other arrangements have been agreed upon in advance, to a third party). Regardless of who receives the benefit of Consideration, it is crucial that the Promisee is the one to provide that Consideration or the Contract is at significant risk of not being legally binding.
It is also important to note that past actions which may have met the definition of Consideration cannot be relied upon in a legally binding Contract. Consideration cannot occur in the past.
While Consideration may be accepted as legitimate for an act that is being performed, or is to be performed in the future, it will not be valid if the Consideration occurred before the ‘act’ which it is providing Consideration towards.
An example of past consideration may arise if John buys a car from Lucy, but attempts to claim that partial payment for the car was already made when, months ago, John paid for Lucy’s holiday to Bali.
Additionally, Consideration must be of some value. This is not to say that the Consideration must be highly valuable – rather, outlines that Consideration must be in a form that can have a value of some kind prescribed to it.
Money, tangible assets and/or provision of a service can each have some value prescribed to them – therefore money, tangible assets, and the provision of a service are all valid forms of Consideration. Alternatively, something intangible such as ‘love’ or a promise ‘to stop being annoying’ cannot be afforded any value – therefore, cannot be relied upon as Consideration.
Whilst it is true that Consideration must have some value, it is important to remember that value does not need to be of equal weight to the broader picture of the overall agreement. This, referred to as ‘adequacy’, means that Consideration does not have to equal the value of any promise entailed within a Contract so long as all parties agree. Basically, there is no test of ‘fairness’ – however, there is a test of suitability: meaning that Consideration cannot involve the Promisee agreeing to do something that they previously agreed to do already; or already has some form of pre-existing obligation to do irrespective of the Contract.
When developing an understanding of Consideration, it is important to also recognise that the Promisee’s performance of an existing Contractual duty to a third party may be accepted as valid.
Occasionally considered the fourth element to the formation of a binding contract, Capacity assesses whether the parties entering into a Contract have the ability and cognisance to do so.
People who do not have full capacity to enter into a legally binding contract may include minors or those with mental impairments (including those who are intoxicated) – although the list is broad. Remember, Capacity is not universally recognised as a precondition to a Contract being legally binding – unlike the first three elements – and Contracts with minors and/or people experiencing mental impairment may still be formed (however, there are particular rules and requirements to protect these vulnerable parties; and ensure Capacity may still be reached where appropriate).
With regards to Formality, it has already been discussed that binding contracts can be formed verbally. However, there are certain types of Contracts that are will not be recognised as legally binding unless they have been made in writing – and these ‘certain types of Contracts’ vary throughout Australia, depending on where you live. Often, Contracts involving use of property have ‘Formality’ element(s) to satisfy in order to be legally binding – although you should always speak to a legal expert, before concluding whether your Contract is binding or not.
DEFAMATION LAW aims to protect the reputation of people and companies from falsehoods made by others.
Defamation Law is designed to protect you and offer some satisfaction in circumstances where your reputation has been damaged by tall tales or false allegations. You should consider your options for addressing defamation by contacting a legal professional regardless of the details of your circumstances – whether your reputation has suffered serious harm by way of someone making and/or sharing untrue statements about you (which is referred to in the legal profession as ‘Slander’); or a group of people have published false stories about you, perhaps online (which referred to as ‘Libel’); or something else entirely. In many cases, you may actually be able to take action against the person or people who are causing harm to your reputation and image, including potential for the Other Party to pay you money in the form of damages.
Although Defamation Law and matters involving Defamation often end up in the Courtroom, there is a mandatory first step which must occur before any person can bring about Court Proceedings for Defamation. This first step is the issuance of something called a Concerns Notice; and failing to adhere to is generally not an option for any person or party who wishes to bring Defamation Proceedings to Court. Accordingly, it’s important to ensure that you understand what a Concerns Notice is; and how you can protect your Defamation Proceedings from procedural interruptions or interference.
All states and territories of Australia have their own legislation regarding Defamation – in Queensland, for example, there is the Defamation Act 2005 (Qld). However, the principles used to define Defamation are universal throughout the country.
These principles provide the following elements comprising Defamation, which should be relied upon when establishing whether something is (or is not) defamatory:
Essentially, if you are able to demonstrate that an item is actually defamatory towards a specifically referenced party and has been published (or otherwise made available) to people other than the originator of the item and the specifically referenced party, then you may be able to rely upon Defamation Law in obtaining justice.
There is no specific guideline as to what is and is not considered defamatory matter; however, there is a universally accepted understanding that it does not matter if the item was not intended to be defamatory; as long as it is.
The current test applied in Australian Courts is whether a reasonable person would objectively believe the item was defamatory, by considering whether the item has:
Secondly, the defamatory matter needs to refer to the person claiming defamation (the aggrieved party). This does not mean that the statement or publication needs to specifically identify the aggrieved party (referred to as ‘express identification’), rather, it just needs to be demonstrated that the publication is about them (‘indirect identification’).
If a reasonable third party, who knows the relevant circumstances of the matter, understands the statement or publication to be making reference to the aggrieved party, then this element would be satisfied.
Publication is the third and final element of defamation as it needs to be demonstrated that the defamatory material was actually expressed or communicated to others.
A publication can mean many things such as an email, poster, website, news article, television broadcast, online material, etc. Verbally expressing defamatory statements to others also constitutes a publication.
Publications do not need to be made to many people in order to satisfy this element of Defamation – in fact, an item being shared with a single person is sufficient.
An important thing to note about publication is that every republication of the defamatory material counts as a new publication.
If the same person or someone else reposted a defamatory statement about you on social media, that repost could constitute an act of publication of defamatory material.
A CONCERNS NOTICE is essentially a letter, sent to a party who has defamed another party in order to demand the immediate cessation of that defamation. Concerns Notices often include other demands and/or requests as well, depending on the circumstances of the party sending the Concerns Notice, such as:
It is crucial to remember that Concerns Notices, and the way they operate, vary between states and territories in Australia. While the remainder of this article will consider Concerns Notices in Queensland, our office is experienced in the realm of Defamation Law across the entire nation – and you should contact our team at Sambi Legal, or another legal professional, for further state-specific advice and insight..
In Queensland, Concerns Notices are governed by Part 3, Division 1 of the Defamation Act 2005 (Qld).
There are a number of requirements relating to how to prepare a Concerns Notice including but not limited to that it must be made in writing, specify the details of the defamation and specify the details the harm caused as a result of the defamation.
A Concerns Notice must be sent before you can go to court.
After a Concerns Notice has been sent, the recipient has 28 days provide an offer to make amends or otherwise respond. If the recipient does not respond within this time, the aggrieved party may commence court proceedings.
If you receive or want to issue a Concerns Notice, it is important to pay close attention to where the defamation took place and what state or territory you are in, because the specific rules and requirements regarding how a Concerns Notice should be prepared or responded to (including your important time limits) may differ to the above.
In determining whether to issue a Concerns Notice or in deciding how to respond to one, it is important to always consider the possible defences to defamation.
Though this article will only discuss the possible defences of Truth and Honest Opinion respectively, the list of available defences is substantial and subject to rapid change; so it is important to seek legal counsel when trying to understand what defences may apply in your circumstances – to either party.
The primary and arguably most relevant defence to defamation is whether the defamatory material is in fact true. This is called THE TRUTH DEFENCE to defamation.
To succeed in this defence, it must be proven that not only is the literal meaning of the defamatory statement factually true, but any conclusion a reasonable person may make from the statement almost must be true.
While bearing similarities to the Truth Defence, THE HONEST OPINION DEFENCE actually varies substantively from the earlier-described Truth Defence. Differentiating these defences is key to establishing a strong cause of action for yourself, particularly if proceedings continue.
Essentially, the Honest Opinion defence provides a shield to defamation proceedings for a party who claims the defamation made was in fact a fair comment or an honest opinion.
For this defence to succeed, the defamatory imputation must be a comment and not represented as fact, relate to a matter of public interest, be based on true facts, and be made fairly. Where an opinion is made alongside statements of facts, those factual statements must be proven.
If a defamation matter proceeds to court and is successful, the aggrieved party may be entitled to seek an injunction and/or damages.
If necessary, an INJUNCTION is utilised to prevent a person from publishing further defamatory material. It is important to note that a court cannot force someone to retract their statements and apologise.
In addition to an injunction, an aggrieved party may also seek DAMAGES. Damages may be awarded on the basis of non-economic loss and economic loss suffered by a defamed party, as a result from the defamation.
Simply put, a claim for damages concerning non-economic loss may seek to address any harm caused to the aggrieved party’s reputation, the fear experienced, the injured feelings, and/or the psychological effects of the defamation. Alternatively, a claim for economic loss is generally a specific dollar figure that the defamed party is able to demonstrate was lost as a result of the defamation that they suffered.
Sambi Legal has multitudes of experience dealing with defamatory matters throughout Australia. If you are interested in seeking legal advice, or learning more about how the contents of this article relate to your circumstances, we encourage you to contact us for a free Initial Consult with one of our experienced solicitors.
A PROTECTION VISA is a classification of Australian visa that allows people to stay in Australia when they are seeking asylum and are owed the Australian protection obligations. In Australia, there are two different types of Protection Visas available for those in need:
Every person’s circumstances are different, and there are innumerable factors for consideration when determining your best Visa pathway. Ultimately, it will always be the decision of the Visa Applicant to determine what Visa they wish to apply for – however, advice from specialised and experienced Migration Lawyers (such as those at Sambi Legal)) can help you ensure that you are making an educated, informed, and cost-effective decision that offers you the best prospects of a positive outcome.
Understanding the differences to the Protection Visas is crucial when figuring out which Visa to apply for. As the names suggest, the Temporary Protection Visa enables you to stay in Australia temporarily (for a period up to three years), whereas the Permanent Protection Visa allows you to permanently stay in Australia as a Permanent Resident.
The primary difference in the eligibility requirements for these visas are that the Temporary Protection Visa is for immigrants who arrive in Australia without a visa and are seeking asylum, unlike the Permanent Protection Visa – which is for immigrants who arrived in Australia on a different, valid Visa; but now wish to seek asylum.
Whilst the protection obligations owed by Australia and the eligibility requirements for these visas are very similar, this article will focus on the Permanent Protection Visa (Subclass 866).
In order to engage Australia’s PROTECTION OBLIGATIONS, the applicant needs to be a refugee according to the Migration Act 1958 (Cth) (‘the Act’).
In short, a refugee is someone who is outside their home country and because of a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or seek protection from that country. In addition to the existence of a ‘well-founded fear of persecution’, there needs to be a real chance of present persecution and as such, past persecution may be used to establish the existence of a well-founded fear, but alone is not enough to make someone a refugee.
The Act specifies five particular reasons someone may have a well-founded fear of persecution, namely they must fear serious harm because of their: race; religion; nationality; membership of a particular social group; or political opinion. As examples, our office have assisted people obtain Protection Visas because they were political dissidents of their home country, were homosexual and feared persecution because of the home country’s societal expectations, etc. It is important to note that the ‘real chance of persecution’ must relate to everywhere in the country and not only a specific area.
A further criterion of having a ‘well-founded fear of persecution’ is that the persecution feared must involve both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. The definition of ‘serious harm’ includes many things such as a threat to liberty, physical harm, significant economic hardship, denial of basic needs, etc. Additionally, for the persecution to be systematic and discriminatory, it needs to be specifically targeted against the person (or a member of their family) and affects the person (or their family member) in such a way that singles that person out from the broader community.
Through our extensive experience in assisting in both applications and appeals for clients seeking to obtain and/or keep their Protection Visa, our office has repeatedly seen and can confirm that difficulties of whether someone engages Australia’s protection obligations tend to arise when they have not taken all possible steps to help avoid or remedy the threats to their protection.
If you have a right to enter and reside in a different country where you would not face persecution or significant harm, and you have not tried to exercise that right, you may not be taken to be a refugee.
There are a long list of other requirements relating to the grant of a Permanent Protection Visa, such as those that relate to health and character.
This article will not identify every requirement, however, provides the following list of hurdles often faced by our clients before they come to us for assistance; and which may jeopardise your Protection Visa application:
It is important to note that the Department Of Home Affairs (being the relevant Department of the Australian Government) will consider all of your circumstances, even if you appear to fall short of any requirements discussed here. In fact, even if you do not meet the health and Character Requirements, your Permanent Protection Visa may still be granted – so it is paramount to always seek advice from experienced professionals, who know the ins-and-outs of Immigration Law in Australia, and can help you obtain the best possible outcome for you and your loved ones.
