COVID-19: Workplace Safety

By | Employment Law

As Queensland’s COVID-19 curve reduces and restrictions ease, plans for returning to work are a hot topic among many businesses.

But before rushing back to business as usual, the Government is urging workplaces to implement a plan outlining how they will keep returning workers safe in accordance with their key workplace health and safety (‘WHS’) duties.

Importantly, employers owe their employees a duty to provide and maintain a working environment that is safe and without risk.

Under this duty falls the responsibility to protect employees from exposure to COVID-19.

Numerous health and safety recommendations have been released regarding what action employers should be taking to prevent exposing their employees to COVID-19 and other related risks upon returning to work.

For more consumable reading, we have condensed some of the important suggestions into one easy-to-read factsheet.

With workplaces adapting to reflect community changes such as caring responsibilities and commuting needs, employers are tasked with creating an environment which is enjoyable and safe for their workers. 

Certainly, not all employees will feel the same about returning to work, because no two workers or workplaces are the same. You will need to understand what is right for each individual to format a return to work plan.

Importantly, Australian HR Institute suggests that support & communication is paramount – urging employers to prioritise their workers’ emotional safety.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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Mumbrella: ‘Right out of the racist’s playbook’ Aboriginal Elders condemn Samantha Armytage and Prue MacSween

By | Media Coverage

Read the Mumbrella article discussing our client, a Group Complainant comprised of Aboriginal Elders, Award-Winners & Young Leaders, take their racial discrimination case against Channel 7 Sunrise to the Federal Court:

‘Right out of the racist’s playbook’ Aboriginal Elders condemn Samantha Armytage and Prue MacSween by Brittney Rigby, posted Wednesday 24 June 2020.

Black Lives Matter/Black Liberation Movement in Australia – Channel 7 Sunrise Racial Discrimination Complainants Respond to Samantha Armytage and Prue MacSween Tweets

By | Media Release

Following, the groups media release on 11 June 2020 and subsequent media reports, Samantha Armytage and Prue McSween have made public comments on Twitter over the past week, responding to the pending Federal Court group complaint/class action. On 12 June 2020, Samantha Armytage tweeted the following:

In response, lead complainant and Aboriginal Elder, Auntie Debbie Swan stated this morning:

“Australian’s are so complacent in their racism, that by making poor excuses for why they don’t think something is racist, they show their ongoing ignorance. You always hear “I’m not racist but…” That is the trouble with people like Samantha, they don’t know racism when they see it because they’ve been doing it for so long and getting away with it. We know racism and racial vilification because we deal with it every single day of our lives. How Samantha manages to turn herself into the victim is a miracle right out of the racist’s playbook! We would be fighting every minute of every single day if we had to address every single act of racism, we face each day. The reason we decided to take a stand in this case is because it is just not acceptable for prominent, influential people like Samantha Armytage and Prue MacSween to get away with such inflammatory, uneducated comments in 21st century modern Australia on national television or anywhere else.”

On 17 June 2020, Prue MacSween tweeted:

In response to both Armytage’s and MacSween’s recent statements, Elder, Aunty Rhonda Dixon-Grovenor, stated this morning:

 “What Sam Armytage is saying is simply not true. She expressly agreed with Prue’s call for a second Stolen Generation – it is clear in the segment transcript for all to see. And what about all the white, non-indigenous paedophiles – when did Sam ever get charged up about those very serious issues regarding white children being abused which happens every single day in every suburb in Australia – I haven’t seen her comment on that! As for Prue’s ongoing uneducated, ignorant and offensive comments – from the standpoint of a traditional Gadigal Elder and all the mob at the #Black Lives Matter/ Black Deaths in Custody rallies, I think it is entirely appropriate that the statues, brands and symbols that glorify Australia’s colonial history of genocide are challenged and reconsidered. As an Aboriginal Australian, these big glorified statues make me feel that I am just not valued, that I’m nothing, that I don’t matter; that the suffering of my people, my family and my community doesn’t matter. When they put all these statutes up reminding Aboriginal people that this nation is honouring people who have stolen your land, killed your families, stolen your culture, and stolen your children and reinforcing that everyone else is benefiting from living on your tribal land. We Gadigal people were one of the first colonised groups. We still feel the brutality of invasion and genocide reverberate from generation to generation via intergenerational trauma and the lack of respect, acknowledgement, and denial of our dignity by every Australian government or colonial authority for over 200 years. To see these prominent people like Sam and Prue continue saying these intentionally offensive things for all the world and media to hear, these racist things, well, good on them because they are exposing themselves and Australia’s black history is finally showing its face, its true colours. Until we can get rid of this virus of racism, we are not going to be able to move forward as the wonderful country that we can be. As the traditional Gadigal people of Sydney, we are leading the #Black Lives Matter/ Black Deaths in Custody rallies to all join together as nation on this continent and we are hoping that all our other non-Aboriginal brothers and sisters will join with us.”

Gwenda Stanley, a Gomeroi Woman from Moree, NSW, who is also party to the Group Complaint stated:

“We are living in historic times with this global movement against racism and yet, in 2018 or 2020 in Australia, Aboriginal people are the most aware of our collective history, that history of dispossession and genocide that has never left us, that we are still reminded of day in and day out in Australia by the denial of our history by the Australian nation, the denial of our birth rights for generations and generations and the glorification of colonisation via statues and other inappropriate symbols of conquest erected upon our sacred traditional lands. Let us not forget that the removal of children in Australia led to a culture of child slavery under the lie of “civilising” Aboriginal people. Just like the lie of “Terra Nullius”, it is time for all of these lies of racism to stop. When the Australian national anthem says, “In history’s page let every stage Advance Australia fair”, that means we need to reintegrate the forgotten pages of our history and seek justice and accountability. It reminds me of a powerful quote attributed to Pemulwuy in Eric Wilmot’s historic novel Pemulwuy – the Rainbow Warrior in his interaction with the colonisers:

“[Lieutenant Marshall] got to his feet. “You call the British savages,” he said loudly. “Yet we offer you protection, civilisation and Christianity! We try to show you how to use this land properly!”

“Civilisation!” Pemulwuy shot back fiercely. “You are people who build your world on the suffering and misery of other people. Your means of exchange is the rum.” He paused, his face dark with anger. “Your religion has no strength,” he snarled. “It does not punish evil people. You are a disease that arrived on our shores.” Pemulwuy pointed a long, sinewy arm at Marshall. “You came simply to steal our land!”

Simone Davison, a Ngarigo Woman from Bairnsdale Victoria, who is an actor who lives in Sydney and part of the Group Complaint stated:

“First Nations people have been dealing with this type of rhetoric from Australia’s for far too long. So, it’s no surprise that Samantha Armytage has lack of understanding and or responsibility for her words and actions. Just like the reports of her ancestor George Armytage. She too with little to no thought of the hurt and devastation caused to First Nations people two and half century’s on down the generations. By openly agreeing with Prue MacSween’s comment about suggesting another Stolen Generation. On national television! Was and still is hugely devastating. Even two years later after the comments were made, she’s still in denial with no remorse or understanding of enormity of what’s was said on national television is the reason why we will continue on with proceeding.”

Background to Sunrise RDA Group Complaint:

The Group Complaint focusses on a controversial ‘abhorrent’, ‘vile’ and ‘racist’ Hot Topics segment recommending another Stolen Generation as a way to solve child welfare issues which was broadcast nationally on Channel 7 Sunrise on the morning of 13 March 2018. The segment featured controversial commentator Prue McSween as well as radio host Ben Davis and Sunrise Host Samantha Armytage. During the segment, Armytage, MacSween and Davis discussed child removal in ‘Indigenous families’ and ‘white families’ and asserted factually inaccurate statements about Aboriginal child removal which were alleged to be deeply hurtful and harmful to Aboriginal Australians and their families. The panel failed to include any Indigenous speakers or anyone with any expertise in the important and sensitive issues being discussed. MacSween even went so far as to state that “just like the first Stolen Generation where a lot of children were taken because it was for their well-being, we need to do it again”.

The segment was subsequently found by the Australian Communications and Media Authority (‘ACMA’) in August 2018 to have breached the Commercial Television Industry Code of Practice for inaccuracies and for provoking serious contempt on the basis of race in breach of the Code as the segment contained strong negative generalisations about Indigenous people as a group. On 4 April 2019, Channel Seven withdrew an application to have the Federal Court review the ACMA’s finding and agreed to provide to the ACMA a court enforceable undertaking, in relation to sensitive and complex matters of this kind, to:

  • commission an independent audit of the production processes for the current affairs content of Sunrise; and,
  • ensure editorial staff are provided with training in relation to identify and deal with such matters.

The segment was also the subject of a defamation case brought by members of the Yirrkala Aboriginal Community who were featured in unrelated file footage during the segment and who also sued for breach of privacy, breach of confidence, race discrimination and breach of Australian consumer law. That case settled in December 2019 in a settlement approved by the Federal Court for an undisclosed amount of compensation, and Channel Seven was ordered to pay their legal costs. Channel Seven also agreed to give a public apology. With the global uprising of the Black Lives Matter movement following the murder of George Floyd, and the significant peaceful protests that took place throughout Australia last weekend calling for justice for 400+ Aboriginal Deaths in Custody since the 1991 Royal Commission, the complainants said that it is gratifying to see some progress at last in race relations in Australia. 

The Group Complaint is being led by both Aboriginal Elders and young Aboriginal leaders from around Australia including those from the groups Grandmothers Against Removal NSW and FISTT (Fighting in Solidarity Towards Treaties) responsible for organising the rolling protests outside Channel 7 HQ in Martin Place in the days immediately following the broadcast which were sensationally censored by Channel 7 and during the Sunrise broadcast from the Gold Coast during the Commonwealth Games.

The group is represented by leading anti-discrimination and human rights Queensland law firm, Susan Moriarty & Associates. The Complainant Group is comprised of the following members:

  1. Aunty Rhonda Dixon-Grovenor (Gadigal & Yuin Woman, Sydney, and South Coast NSW).
  2. Aunty Debra Swan (Yinaar (Woman) from the Goonoo Goonoo tribe of the Gomeroi Nation from Moree/Terry Hie Hie area and Wailwan tribe of the Wiradjuri Nation NSW, lives in Newcastle).
  3. Cameron Manning (Gomeroi Man, Mungindi, Toomelah and Boomi, lives in Newcastle).
  4. Lynda-June Coe (Wiradjuri Woman of the Lachlan River, Erambie, NSW lives in Newcastle).
  5. Gwenda Stanley (Gomeroi Woman from Moree, NSW, lives in Brisbane).
  6. Ruby Wharton (Gamilaraay Kooma Yinnar (Woman) Cunnamulla, QLD, lives on the Gold Coast).
  7. Simone Davison (Ngarigo Woman from Bairnsdale Victoria, lives in Sydney).
  8. Trisha Morton-Thomas (Anmatter Women, Tanami Desert NT, lives in Alice Springs).

SCHEDULE

Extracts of AHRC RDA Complaints

In the Group Racial Discrimination Complaint filed in the Australian Human Rights Commission (AHRC) in September 2018, Aunty Rhonda Dixon-Grovenor, stated: “I am a traditional descendent of the Gadigal and Yuin people of Sydney and the South Coast Of NSW. I found the Sunrise panel’s comments to be very racist and hurtful as my grandfather and his two brothers were stolen from their parents and put into the Kinchella Boys Home where they were treated very cruelly. This broadcast has bought great sorrow hurt for our people and contributed to the intergenerational trauma which today affects my family mentally, physically and spiritually”.

Elder, Aunty Debra Swan, who represents the group Grandmothers Against Removal NSW she co-founded nearly five years ago stated: “I am a co-founder of Grandmothers Against Removal NSW and have been working voluntary with this group for six years, to stop removal of Aboriginal children from their families and to restore children, (in the Out of Home Care system) back to their families. When I first watched the Sunrise program, I was outraged and thought: ‘How can these three people, Ms Armytage, Ms MacSween and Mr Davis talk about this issue without any experience or qualification?’ They obviously did not know what they were talking about and were quite racist in their comments. My outrage quickly turned to insult given the knowledge I have in relation to this very topic. I was offended as well, not just for myself but for the Stolen Generation, the continuation of the stolen generation, the children who are in care at present and all families who have been subjected to this system of Child Protection, and Aboriginal people generally as we have all been affected.”

Award-winning writer, producer and actress Trisha Morton-Thomas, Anmaterr woman from the Tanami Desert who lives in Alice Springs (known for the films: Occupation Native (2017), 8MMM Aboriginal Radio (2015), The Song Keepers (2017) and Radiance (1998)) has joined the Group Complaint and stated: “I have joined this complaint because across this continent, Aboriginal cultures practice responsibility and obligations to our much-loved children and our families, this is the core of our cultures. Our children have to be safe and protected as that is our lore. We come together across our nations here as the First Peoples of this continent celebrating 65,000 – 80,000 years of the oldest continuous culture on our planet. We ask to be treated with dignity and humanity as together we try to heal the hurts of the past 248 years.”

Gwenda Stanley Gomeroi Woman from Moree, NSW, who lives in Brisbane stated: “…I am writing to express my utter disgust at the Sunrise segment on the 13 March 2018 in relation to the divisive and deeply insulting comments made by presenter Samantha Armytage, Prue MacSween and Brisbane Radio host Ben Davis about forced adoption of Aboriginal kids and the need for a new Stolen Generation. I am deeply offended and hurt by comments made in that segment and interviews after this incident, defamation insults towards us as activist, calling us dole bludgers lazy and have nothing better to do and to say that we don’t care is extremely insensitive. As an advocate for my people I am drained emotionally and spiritually by these direct assaults in us Aboriginal Activists who are highly respected in our communities and in our work environments. The views of us Aboriginal people expressed by Armytage, MacSween and Davis are typical colonial traits of ideologies that seem to be family orientated and hereditary of their strong negative generalisation of us Aboriginal people of Australia.”

Simone Davison a Ngarigo Woman from Bairnsdale Victoria, who is an actor who lives in Sydney stated: “On the morning of the 13 March 2018, I watched the Sunrise panel consisting of Samantha Armytage, Prue MacSween, Ben Davis speak in support of the forced adoption of Aboriginal children and a new Stolen Generation. This panel did not include an aboriginal representative. My immediate thought was dismayed that a national news reporter and commentators could make such misleading statements on television without true facts. It has been far too long that we have had to endure derogatory comments by non-indigenous peoples. This only carries on the written statement made by an earlier English Explorer who referred to us indigenous as wretched blacks. As mother and a black woman, I’m completely offended and appalled and distressed about the inflammatory comments made by the Sunrise panel and what this bring to our children and our children’s children.”

Young Aboriginal Leader and representative of FISTT, Cameron Manning, a Gomeroi man from Mungindi, Toomelah and Boomi stated: “The shameful history of the forced removal of Aboriginal and Torres Strait Islander children across this continent is an issue that must be known and understood by everyone. This is a history of colonial violence, intergenerational trauma and genocide that have created a deep hurt for us as Aboriginal people and families that continues to this day. The statements made by the non-Indigenous Sunrise panellists and the emotive sensationalist language used by the presenter had no basis in reality, and perpetuated racist stereotypes without any historical or political context given to the issues being presented. I was affected deeply by this event, which is why I joined hundreds of people in protest at the ‘sunrise’ studios at Martin Place to stand up against this abhorrent behaviour and negative portrayal of my people in the racist Australian media.”

Lynda-June Coe, a Wiradjuri Woman of the Lachlan River, from Erambie Cowra NSW, a high school teacher and PhD candidate at the University of Newcastle stated: On the morning of the panel I became aware of the comments made by the all-white panel from friends who notified me through social media. Immediately I watched the episode and my response was in complete and utter shock at the total disregard and lack of informed dialogue allowed to go to air surrounding such highly sensitive and historically damaging issues pertaining to the lives of my people and community. Following this, I immediately set about organising a call to action and protest at Martin Place, Channel 7 studios to send a direct message that this hate speech is not on! We can no longer condone or allow the media to perpetuate divisive material and to race bait Aboriginal people any longer. Enough is enough!”

Ruby Wharton, university law and justice student and Young Aboriginal Leader from the Gold Coast stated: “I am fortunate enough to have had only one grandparent who was a part of the Stolen Generation, however, what my grandmother endured is something that I could never be appreciative of. She was born at Cherbourg and had been raised as a domestic slave in dormitories in Cherbourg, Palm Island and Woorabinda. My grandmother was forced to leave the missions to do domestic work on properties for white families, she was placed with one family who had beaten her so badly that she could no longer smell or hear, unfortunately she was also whipped and raped at this same property. My grandmother is the reason why I am heavily involved with Aboriginal affairs and politics. My grandmother’s experiences were the furthest from being beneficial for herself and if anything had given her reason to fight all forms of racial discrimination even more so. I viewed the Sunrise broadcast on the 13 March 2018 while I was traveling to university via public transport and the segment had been shared in my Facebook newsfeed a number of times. I was shocked that such ill-informed opinions can be posed as truth in prime-time morning television, it was incredibly insulting to myself, my family and my community to observe this vile propaganda. This topic of discussion should not ever be taken lightly, this is a dialog that has the power to dictate the lives and well-being of individuals, this is a discussion that needs to be well informed and involve the appropriate people.”

Media Contact: To arrange an interview please contact Susan Moriarty & Associates:

P: 07 3352 6782 E: admin@susanmoriarty.com.au

Mumbrella: Seven, Samantha Armytage and Prue MacSween to be sued over 2018 ‘Stolen Generations 2.0’ panel

By | Media Coverage

Read the Mumbrella article discussing our client, a Group Complainant comprised of Aboriginal Elders, Award-Winners & Young Leaders, take their racial discrimination case against Channel 7 Sunrise to the Federal Court:

‘Seven, Samantha Armytage and Prue MacSween to be sued over 2018 ‘Stolen Generations 2.0’ by Brittney Rigby, posted Friday 12 June 2020.

ABC NEWS: Sunrise host Samantha Armytage and commentator Prue MacSween to be sued over Indigenous adoption segment

By | Media Coverage

Read the ABC News article discussing our client, a Group Complainant comprised of Aboriginal Elders, Award-Winners & Young Leaders, take their racial discrimination case against Channel 7 Sunrise to the Federal Court:

Sunrise host Samantha Armytage and commentator Prue MacSween to be sued over Indigenous adoption segment by AAP, posted Thursday 11 June 2020.

Black Lives Matter in Australia – Channel 7, Samantha Armytage and Prue McSween to be Sued in Federal Court for Racial Vilification After Settlement Negotiations Collapse

By | Media Release

Settlement negotiations in a Group Racial Discrimination Complaint filed in the Australian Human Rights Commission by a group of Aboriginal Elders, Award-Winners & Young Leaders in September 2018 have collapsed forcing the eight Aboriginal Complainants to take their case to the Federal Court.

The Group Complaint focussed on a controversial ‘abhorrent’, ‘vile’ and ‘racist’ Hot Topics segment recommending another Stolen Generation as a way to solve child welfare issues which was broadcast nationally on Channel 7 Sunrise on the morning of 13 March 2018. The segment featured controversial commentator Prue McSween as well as radio host Ben Davis and Sunrise Host Samantha Armytage.

During the segment, Armytage, MacSween and Davis discussed child removal in ‘Indigenous families’ and ‘white families’ and asserted factually inaccurate statements about Aboriginal child removal which were alleged to be deeply hurtful and harmful to Aboriginal Australians and their families. The panel failed to include any Indigenous speakers or anyone with any expertise in the important and sensitive issues being discussed. MacSween even went so far as to state that “just like the first Stolen Generation where a lot of children were taken because it was for their well-being, we need to do it again”.

Aboriginal Elder, Aunty Rhonda Dixon-Grovenor, is leading the Group Complaint. Aunty Rhonda is the daughter of famous civil rights activist, Charles “Chicka” Dixon, a prominent Aboriginal activist of the 1960s/1970s and ringleader in the decade-long campaign for the 1967 referendum and the 1972 establishment of the Aboriginal tent embassy in Canberra which still stands today.

This morning Aunty Rhonda stated: “This is a very important time for our people, with tens of thousands of Australians standing up to call for recognition, justice and reconciliation. People are standing up around the world calling out systemic and entrenched racism and saying “Enough!” We have been fighting for so long for justice and to end racism in Australia – we just want accountability and equality. This nation-wide broadcast by Channel 7 in March 2018 was another symbol of national shame and another appalling example of the deeply entrenched virus of racism that still plagues white platforms of privilege in this country. We say that community standards have changed, and this racism must be called out, there must be zero tolerance, it is not acceptable anymore – especially by a national broadcaster who should know better.

“By contrast, the ABC Insiders program last Sunday featured 3 white people discussing Indigenous disadvantage but they had the humility to acknowledge and apologise for the fact that the panel did not have an Indigenous voice who could speak authentically of the terrible homicides of Indigenous people by white police and correctional officers. 

Aunty Rhonda continued: “Sunrise, on the other hand, platformed wealthy white women calling for a Stolen Generations 2.0 as a means of salvation for our young people. This shameful, profoundly hurtful and devastating display of racism was broadcast by a commercial television station into homes right across Australia; the dignity of all Aboriginal people and children was violated in our very own homes and loungerooms around Australia. Channel 7’s subsequent disingenuous downcast eyes and ‘we’re so sorry’ murmurs, after we protested and their racism was called out, mean nothing to us when they refuse all reasonable requests for proper reparation of the pulverizing hurt, humiliation and distress, we feel every single day of our lives. How Samantha Armytage continues on a program that hopes to speak to all Australians in light of her previous slip up in 2015 about racial preferencing speaks louder than all the fake empathy and ‘regret’.” 

The segment was subsequently found by the Australian Communications and Media Authority (‘ACMA’) in August 2018 to have breached the Commercial Television Industry Code of Practice for inaccuracies and for provoking serious contempt on the basis of race in breach of the Code as the segment contained strong negative generalisations about Indigenous people as a group. On 4 April 2019, Channel Seven withdrew an application to have the Federal Court review the ACMA’s finding and agreed to provide to the ACMA a court enforceable undertaking, in relation to sensitive and complex matters of this kind, to:

  • commission an independent audit of the production processes for the current affairs content of Sunrise; and,
  • ensure editorial staff are provided with training in relation to identifying and dealing with such matters.

The segment was also the subject of a defamation case brought by members of the Yirrkala Aboriginal Community who were featured in unrelated file footage during the segment and who also sued for breach of privacy, breach of confidence, race discrimination and breach of Australian consumer law. That case settled in December 2019 in a settlement approved by the Federal Court for an undisclosed amount of compensation, and Channel Seven was ordered to pay their legal costs. Channel Seven also agreed to give a public apology.

With the global uprising of the Black Lives Matter movement following the murder of George Floyd, and the significant peaceful protests that took place throughout Australia last weekend calling for justice for 400+ Aboriginal Deaths in Custody since the 1991 Royal Commission, the complainants said that it is gratifying to see some progress at last in race relations in Australia. 

However, they expressed significant disappointment that settlement negotiations with Channel 7 have broken down during such an important moment of reckoning for Australia and the world on issues of racism and race relations.

The Group Complaint is being led by both Aboriginal Elders and young Aboriginal leaders from around Australia including those from the group FISTT (Fighting in Solidarity Towards Treaties) responsible for organising the rolling protests outside Channel 7 HQ in Martin Place in the days immediately following the broadcast which were sensationally censored by Channel 7 and during the Sunrise broadcast from the Gold Coast during the Commonwealth Games.

The group is represented by leading anti-discrimination and human rights Queensland law firm, Susan Moriarty & Associates.

The Complainant Group is comprised of the following members:

  1. Aunty Rhonda Dixon-Grovenor (Gadigal & Yuin Woman, Sydney and South Coast NSW).
  2. Aunty Debra Swan (Gomeroi Nation Yinaar (Woman) from the Goonoo Gonnoo tribe Moree/Terry Hie Hie area NSW, lives in Sydney).
  3. Cameron Manning (Gomeroi Man, Mungindi, Toomelah and Boomi, lives in Newcastle).
  4. Lynda-June Coe (Wiradjuri Woman of the Lachlan River, Erambie, NSW lives in Newcastle).
  5. Gwenda Stanley (Gomeroi Woman from Moree, NSW, lives in Brisbane).
  6. Ruby Wharton (Gamilaraay Kooma Yinnar (Woman) Cunnamulla, QLD, lives on the Gold Coast).
  7. Simone Davison (Ngarigo Woman from Bairnsdale Victoria, lives in Sydney).
  8. Trisha Morton-Thomas (Anmatter Women, Tanami Desert NT, lives in Alice Springs).

SCHEDULE: Extracts of Complaints

In her Complaint to the AHRC Aunty Rhonda stated: “I am a traditional descendent of the Gadigal and Yuin people of Sydney and the South Coast Of NSW. I found the Sunrise panel’s comments to be very racist and hurtful as my grandfather and his two brothers were stolen from their parents and put into the Kinchella Boys Home where they were treated very cruelly. This broadcast has bought great sorrow hurt for our people and contributed to the intergenerational trauma which today affects my family mentally, physically and spiritually”.

Elder Aunty Debra Swan, represents the group Grandmothers Against Removal she co-founded nearly five years ago stated: “I am a co-founder of Grandmothers Against Removal NSW and have been working voluntary with this group for four and a half years, to stop removal of Aboriginal children from their families and to restore children, (in the Out of Home Care system) back to their families. When I first watched the Sunrise program, I was outraged and thought: ‘How can these three people, Ms Armytage, Ms MacSween and Mr Davis talk about this issue without any experience or qualification?’ They obviously did not know what they were talking about and were quite racist in their comments. My outrage quickly turned to insult given the knowledge I have in relation to this very topic. I was offended as well, not just for myself but for the Stolen Generation, the continuation of the stolen generation, the children who are in care at present and all families who have been subjected to this system of Child Protection, and Aboriginal people generally as we have all been affected.”

Award-winning writer, producer and actress Trisha Morton-Thomas, Anmaterr woman from the Tanami Desert who lives in Alice Springs (known for the films: Occupation Native (2017), 8MMM Aboriginal Radio (2015), The Song Keepers (2017) and Radiance (1998)) has joined the Group Complaint and stated: “I have joined this complaint because across this continent, Aboriginal cultures practice responsibility and obligations to our much-loved children and our families, this is the core of our cultures. Our children have to be safe and protected as that is our lore. We come together across our nations here as the First Peoples of this continent celebrating 65,000 – 80,000 years of the oldest continuous culture on our planet. We ask to be treated with dignity and humanity as together we try to heal the hurts of the past 248 years.”

Young Aboriginal Leader and representative of FISTT, Cameron Manning, a Gomeroi man from Mungindi, Toomelah and Boomi stated: “The shameful history of the forced removal of Aboriginal and Torres Strait Islander children across this continent is an issue that must be known and understood by everyone. This is a history of colonial violence, intergenerational trauma and genocide that have created a deep hurt for us as Aboriginal people and families that continues to this day. The statements made by the non-Indigenous Sunrise panellists and the emotive sensationalist language used by the presenter had no basis in reality, and perpetuated racist stereotypes without any historical or political context given to the issues being presented. I was affected deeply by this event, which is why I joined hundreds of people in protest at the ‘sunrise’ studios at Martin Place to stand up against this abhorrent behaviour and negative portrayal of my people in the racist Australian media.”

Lynda-June Coe, a Wiradjuri Woman of the Lachlan River, from Erambie Cowra NSW, a high school teacher and PhD candidate at the University of Newcastle stated: On the morning of the panel I became aware of the comments made by the all white panel from friends who notified me through social media. Immediately I watched the episode and my response was in complete and utter shock at the total disregard and lack of informed dialogue allowed to go to air surrounding such highly sensitive and historically damaging issues pertaining to the lives of my people and community. Following this, I immediately set about organising a call to action and protest at Martin Place, Channel 7 studios to send a direct message that this hate speech is not on! We can no longer condone or allow the media to perpetuate divisive material and to race bait Aboriginal people any longer. Enough is enough!”

Ruby Wharton, university law and justice student and Young Aboriginal Leader from the Gold Coast stated: “I am fortunate enough to have had only one grandparent who was a part of the Stolen Generation, however, what my grandmother endured is something that I could never be appreciative of. She was born at Cherbourg and had been raised as a domestic slave in dormitories in Cherbourg, Palm Island and Woorabinda. My grandmother was forced to leave the missions to do domestic work on properties for white families, she was placed with one family who had beaten her so badly that she could no longer smell or hear, unfortunately she was also whipped and raped at this same property. My grandmother is the reason why I am heavily involved with Aboriginal affairs and politics. My grandmother’s experiences were the furthest from being beneficial for herself and if anything had given her reason to fight all forms of racial discrimination even more so. I viewed the Sunrise broadcast on the 13 March 2018 while I was traveling to university via public transport and the segment had been shared in my Facebook newsfeed a number of times. I was shocked that such ill-informed opinions can be posed as truth in prime-time morning television, it was incredibly insulting to myself, my family and my community to observe this vile propaganda. This topic of discussion should not ever be taken lightly, this is a dialog that has the power to dictate the lives and well-being of individuals, this is a discussion that needs to be well informed and involve the appropriate people.”

Media Contact: To arrange an interview please contact Susan Moriarty & Associates

M: 07 3352 6782 E: admin@susanmoriarty.com.au

ABC News: Woman waits an ‘agonising’ six years for sexual harassment case ruling after court ‘clerical error’

By | Media Coverage

A victim of workplace sexual harassment has still not been told why she had to wait over six years for the Federal Circuit Court to hand down a judgment.

Our client has been told an “administrative oversight” was to blame for the delay.

Principal, Susan Moriarty, has launched a Freedom of Information request to uncover documents related to the “oversight” – to find out what went wrong.

Ms Moriarty said the situation was intolerable in the 21st Century, saying “justice delayed is justice denied”.

“We had a person, a vulnerable young woman, waiting six years and one month for a decision that’s had to be remedied on appeal before the Full Court,” she said.

“There’s an explanation owed to her. She is owed some accountability by the justice system.”

Read about the case, as reported by Kate McKenna in the ABC News article, Woman waits an ‘agonising’ six years for sexual harassment case ruling after court ‘clerical error’, posted Friday the 22nd May 2020.

Healthcare professionals, have you been “regulated”?

By | Employment Law | No Comments

Our guest contributor, Dr Anchita Karmaker, brings a wealth of skill and knowledge bridging the great divide between legal and medical professions. Having worked for 11 years as a medical practitoner in Australia, she is currently completing her legal qualifications, with the hope to specialise in regulatory and administrative/constitutional legal issues at Susan Moriarty & Associates. 

5 reasons not to fear the regulators

Once you finish all those years of grueling study with sleepless nights, finally you get to call yourself a healthcare professional. Whether you are a Doctor, a Dentist, a Physiotherapist, or a Nurse, there is no doubt that you have sacrificed some portion of your life and brain cells to hold the privilege of becoming a gatekeeper of life and death. Going through university, you are never really taught about how the so-called registration process occurs and what happens to you once you graduate. Do you just automatically become part of this secret noble club where maybe you hold a membership ID card that you can flash, declaring your stature? What you get in your dreams and what you get in reality is painfully different, and as always, ignorance and the unknown is what breeds fear, and poor decision making. In this short editorial piece, I would like to share with you all some thoughts and facts about what it means to be regulated as a healthcare professional in Australia and where there may be some gaps that need some serious reconstruction and reform.

There are currently (approx) 700,000 healthcare professionals registered in Australia holding various titles. They are all ‘registered’ under AHPRA, short for the Australian Health Practitioner Regulation Agency. This organization is not a government organization. It is not a delegated, statutory power of the Health Minister as such. It is not a company. It is not a teaching or accreditation body and or a college. It is simply an agency that, as one of its functions, helps the various Health Practitioner Boards investigate potential risk to the public. In other words, 700,000 healthcare professionals pay a fee to this agency to make sure complaints by the public are looked into, in order to keep patients safe.

The Registration process also allows practitioners to hold a prescriber number and a provider number.  Without registration as a medical practitioner (or in some other health profession that would permit it) a person is not permitted to prescribe medications or claim from Medicare for medical services.

It is all about accountability and protection for the public against “bad” practitioners.

When did all this happen and who oversees what AHPRA does?

In 2008, the Council of Australian Government (COAG) decided to establish a single National Registration and Accreditation Scheme (National Scheme) for registered health practitioners. The COAG Health Council has ultimate oversight of the National Scheme. AHPRA is simply an agency that supports the National Boards (i.e. Medical Board of Australia, Dental Board of Australia, Pharmacy Board of Australia) to implement the National Scheme.

Why so serious?

That all makes sense, right? So why do so many practitioners fear and stress over the dreaded AHPRA complaint? Being accountable when holding such a title as a “Doctor” or a “Nurse” surely comes with a multitude of responsibilities and therefore, as healthcare professionals we are bred to be accountable and transparent with our work. Then why the fear? Investigation of complaints should be welcomed!

The truth is far from this. Regardless of the nature of the mistake, omission, or even criminal conduct, in a democratic society, one would think that the interrogation process is prevalent and necessary on the proviso that is it conducted fairly following the principle of due process/natural justice. However, case after case have come to light illustrating that this is not so for many who are subjected to this onerous process. It is often characterized as a never-ending investigation, onerous, with potential for long-standing conditions on your registration or slow, painful further tribunal/legal proceedings.

A classic example of a potential breach in natural justice is the fact that when a medical practitioner is referred to AHPRA, they have a panel of medical practitioners who are employed and paid by the agency to review and provide advice to other AHPRA staff who, in turn, make recommendations to the relevant board. The practitioner under scrutiny may never know that this has occurred, who the medical practitioner who reviewed their case was, what the person’s qualifications were, or whether there’s some reason why that person may not have brought a fair and impartial mind to the case. The Board may not even know this. This is one example of a flawed system that needs urgent attention from the finest minds of both the healthcare industry and the legal industry.

Knowing all this, and hearing all the nasty stories of how AHPRA or other regulatory bodies have allegedly destroyed practitioner’s lives, is fear and quasi-legal arguments and or fierce unorganized revolt the answer?  Here are 5 reasons I think it should not be a fear and hate-driven process:

  1. AHPRA – they are all normal people employed to do their jobs according to what training and standards they have been given to work with. They are not ogres or gods. They are simply doing their jobs. They are not Goliath. In general, they think they’re doing the right thing.
  1. Being reported to AHPRA should not be the trigger to get a mental health condition. Nor should a potential referral to AHPRA be the reason not to seek mental health treatment and support. If you have mental health issues, seek help, and get it under control. Although limited, there is case law emerging which supports this proposition. Better to be honest and upfront about your impairment rather than causing harm and then being interrogated.
  1. Let’s make a small change. If you are not happy with decisions made against you for whatever reason it may be, use the avenues of appeals and judicial review. If you do not put your hand up and protest, nothing will change, and nothing can be argued to better the system.
  1. We are part of the system. To make a change, yelling and shouting in an unorganized manner only cements the suspicion of our interrogators that we are slightly crazy. As practitioners we get people out of life and death scenarios, keeping our cool and collected face, concentrating on our craft. Why not apply these skills? We can put our minds together, identify issues such as lack of procedural fairness or lack of peer-reviewed, and agreed clinical standards, work on these issues and present a proposal as a collective to the COAG? Not as part of some politically or financially driven union or body, but as independent healthcare professionals with the sole agenda of providing a better and sustainable healthcare system for us all.
  1. Understand that there are no shortcuts. Just like we cannot be ‘half’ pregnant, you cannot complain and wish for change just by reiterating sad and emotional anecdotes. One must take action. If we want to change as a profession, we must gain the knowledge base and expertise plus the willingness to take risks with all our hearts. A Doctor cannot pretend to be a lawyer and visa versa. Perhaps, the study of law and understanding regulatory issues may have to be a compulsory part of all healthcare-related degrees so that fatal errors and holes in the system can be identified and rectified.

What’s the catch?

Although this is a NATIONAL scheme, applicable to all practitioners regardless of which state they are in, the actual NATIONAL LAW itself is a state and territory-based legislation and it is not a Commonwealth law.

Therefore, arguments regarding section 51 of the Constitution will not succeed – AHPRA/Boards are not created under Commonwealth law!

Others have thought of challenges based on section 75(iv) but recent case law and analysis of this may have made this difficult too (see below for example case law).

What to do now?

Things are changing and things will continue to change. If you are interested, read cases such as:

Craig v The Medical Board of South Australia [2001]SASC 169 this is not a recent case but it is regularly cited and gives details around what the Board should/shouldn’t do when regulating a profession.

DYB v Medical Board of Australia [2019]

HCA Burns v Corbett

If you are committed to change and would like to see this happen, there are two things you can do as a healthcare professional. One, study law and become a Lawyer. Two, support those who have already done this through fundraising and peer support groups.

Once we know what the problems are we will be able to find a solution. Surely it can’t be harder then restarting a heart that has stopped beating. Together we can create change for a fair and better tomorrow. 

We are collecting data regarding need for reform. Please answer a short survey if you are a healthcare professional: Survey Monkey

Disclaimer: this article is written as an editorial /opinion and it is not a legal advice. I am not a lawyer.

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JobKeeper and COVID-19: Workplace rights in a changing world

By | Employment Law

The COVID-19 pandemic that has swept across the globe has caused suffering to employers, employees and the global economy. The Australian Government responded to the economic crisis with the JobKeeper payment to keep as many people in their jobs as possible. The JobKeeper payment is a $130 billion package that an eligible employer can access to keep the jobs of their eligible employees.

The JobKeeper payment was intimated in early March and was officially announced on 31 March 2020. The measures passed through parliament via the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) which will make Part 6-4C of the Fair Work Act 2009 (Cth) (‘Act’). Since then, employers have had the ability to apply for the JobKeeper Payment that commenced on 1 May 2020, subject to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (‘JobKeeper Rules’). Employers can continue to apply for the JobKeeper payment until it ends in September 2020.

At Susan Moriarty & Associates we have seen cases where employers have made workers redundant and/or dismissed them due to the economic consequences of COVID-19 without consideration/with ignorance to the JobKeeper allowance.

This article will answer the following questions:

  1. Can I ask my employer about the JobKeeper payment and if they have applied for it?

  1. If my Employer has applied for it, do they have to tell me?

  1. If my Employer is looking at COVID-19 related redundancies, can I raise the issue of the JobKeeper allowance?

  1. If I am on the JobKeeper allowances, what rights do I have?

  1. What can I do if my employer has made me redundant/dismissed me due to COVID-19 and they do not do anything about JobKeeper?

Note: These answers are crafted in a way to give you short responses that does not delve into the detail regarding the elements that must be satisfied such as the wage condition or how the Commonwealth government calculates whether an employer is eligible for the JobKeeper allowance. Should you wish to obtain that information regarding your particular circumstances, we would be happy to help you.

1. Can I ask whether my employer has applied for JobKeeper?

You can ask your employer whether they have applied for the JobKeeper allowance. If you are an eligible employee, you can inform the employer pursuant to the Part 6-4C of the Act that you intend to participate in the scheme and want to know whether they are applying for the JobKeeper subsidy.

An ‘eligible employee’ is one that:

  • Is a full time, part time or long-term casual (ie. over 12 months);
  • Is not a short-term casual (ie. less than 12 months);
  • Is at least 16 years old as at 1 March 2020;
  • Was employed by the employer as at 1 March 2020;
  • An Australian resident or a New Zealand citizen but registered with the ATO;
  • Was an employee during the relevant fortnight that the JobKeeper payment applies to;
  • Notice is given to the employer in the ‘approved form’; and
  • The Employer is not excluded from the JobKeeper subsidy.

Section 789GB of the Act makes it clear that the purpose of the JobKeeper allowance is to keep employees employed during the COVID-19 crisis. Therefore, your employer should tell you about it particularly if they are applying for the subsidy as it is a requirement they must meet. If they are not applying for JobKeeper, then they should tell you, especially if you work multiple jobs because you would need to establish which employer to get it from (as it is illegal to double-dip).

An important note is that an employer who has not applied for the JobKeeper subsidy does not have the protections given in the JobKeeper Rules and in the Act, such as being able to stand down employees with less legal risk and being able to change an employee’s responsibilities or their place of work. It is therefore beneficial for businesses to apply for the JobKeeper subsidy, and one would wonder why a business that may be suffering in the COVID-19 economic crisis would not be seeking the JobKeeper help if they are eligible.

2. If your Employer has applied for JobKeeper, do they have to tell you?

Yes. According to rule 6(4) of the JobKeeper Rules, the employer must notify an individual within seven (7) days of giving the Commissioner the employee’s details when they apply for the JobKeeper subsidy.

3. If my Employer is looking at COVID-19 related redundancies, can I raise the issue of the JobKeeper allowance?

If you are being made redundant, your employer must follow the law including discussing the redundancy with you. Section 389 of the Act states that a genuine redundancy is when:

  • The employer no longer required the person’s job to be performed by anyone because of the operational requirements of the business; and
  • The employer has complied with the relevant award/agreement regarding the requirement to consult about the redundancy.

During the consultation with your employer, you will be able to raise the JobKeeper allowance because it has been created to assist employees to keep their job. The employer will let you know if they are eligible for the payment or not, and consequently whether they will apply for it or have applied for it. If the employer has applied for the JobKeeper subsidy, they have to apply for all their employees and cannot choose who gets it and who does not.

It must be noted that there is no obligation on the employer to apply for the JobKeeper payment if they do not want to. Not applying for JobKeeper simply means the business can weather the COVID-19 economic crisis without government intervention.

If your employer is not applying for JobKeeper, section 389(2) of the Act makes it clear that the employer must consider whether it is reasonable to redeploy you to another role in the business or an associated business. If the employer fails to do so, they will be breaching the law. It would be worth in consultation to discuss this option because the availability of the JobKeeper subsidy would be taken into consideration if the employee is dismissed and the Fair Work Commission looks at whether the dismissal was harsh, unjust or unreasonable in section 389 of the Act. Make clear what you want and explore all the options, and make sure to document these discussions in writing.

4. If I am on the JobKeeper allowance, what rights do I have?

The JobKeeper payments do not change the protections you have against unfair dismissal as well as any adverse action claim about your workplace rights. The proposed section 789GY of the Act also gives further workplace rights that are protected, including:

  • the benefit that an employee should be paid in accordance with the JobKeeper rules;
  • agreeing, or not agreeing, to perform duties on different days or at different times;
  • agreeing, or not agreeing, to take paid annual leave after a request by the employer;
  • agreeing, or not agreeing, to take paid annual leave on request by the employer; and
  • making a request if stood down for secondary employment, training or professional development.

The employer can request an employee to make an agreement regarding:

  • Requesting the employee to take annual leave;
  • Taking annual leave at half pay; and
  • Varying the hours and days of work.

It is important to note that your contractual hours remain in effect until there is an agreement to alter it. The employer cannot take unilateral steps at changing your hours or days of work without an agreement with you. This has been a common tactic we have witnessed during this pandemic.

Whilst there are many protections and any substantive changes must be made by agreement between you and your employer, the employer does have the following powers if they are under the JobKeeper scheme:

  • To take the stand down power pursuant to the requirements of section 789GDC of the Act;
  • Directions to change duties in section 789GE of the Act; and
  • Direction to change the place of work in section 789GF of the Act.

In essence these powers give the employer the ability to give you a stand down order where necessary, however you still must be paid appropriately. The power to change duties allows the employer to provide alternative duties to the employee regardless of the contract, in an attempt to prevent standing you down. The third power allows the employer to change your place of work.

Overall if you are on the JobKeeper allowance, your workplace rights are enshrined in the JobKeeper Rules and the Act, which should prevent any unconscionable conduct by the employer. If you are being forced to accept new hours or your hours are being reduced without consent, we suggest that you talk to us about it.

5. What can I do if my employer has made me redundant/dismissed me due to COVID-19 and they do not do anything about JobKeeper?

If you have been made redundant or dismissed due to COVID-19 and JobKeeper did not make part of the consultations with you about the redundancy, then you may be able to make an unfair dismissal application or an adverse action claim against the employer. Whether you have a potential case must be analysed on a case by case basis, and that is why getting legal advice is important.

Please note that there is a 21 day timeframe in which you must make an application in the Fair Work Commission. There are some exceptions to this timeframe, however if possible, seek advice within that timeframe.

We can help you

During the current COVID-19 economic crisis, keeping your job is more important than ever and we are happy to help you and the community get through this. We are experts in employment law and have a firm grasp of the JobKeeper legislation and the current economic and legal landscape, and will be able to give you an understanding of where you can go, what you can do, and whether you have a potential case.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer should your require advice.

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