Sunday, January 24, 2021

Man who strained his back picking up company car keys will receive workers compensation

How on earth is the employer responsible for this? Is the employer responsible for damage that he does to himself while he performs an everyday task? If he was acting on the instructions of his employer it would make sense. But he clearly was not. He was making a private decision about a private matter

It's all an instance of the courts assisting people to target those who have deep pockets. If some one suffers in some way, lawyers look around for someone who is even tangentially involved and puts the reponsibility on him if he has significant resources. And judges allow that.

Liability is not dermined by guilt or responsibility but by ability to pay

A tribunal found the link between his work and his journey to work meant his injury was compensable
The South Australian Employment Tribunal has ruled that Robert Thelan, a works coordinator for SA Power Networks, must be compensated for the injury.

Mr Thelan was on call at home, on September 9, 2019, when he received a text message asking him to attend a job to fix a power line.

He got dressed for work and went out to the company Ford Ranger in his driveway, and sat down in the drivers' seat.

Mr Thelan accidentally dropped the keys to the four-wheel-drive ute onto the driveway, according to the judgment of Deputy President Judge Miles Crawley.

Staying in the seat, 90 centimetres above the ground, he leaned out the driver's side door to pick them up, straining his back in the process.

He drove to the Port Pirie SA Power Networks depot and reported the injury, and was taken to hospital soon after.

He was subsequently unable to work and incurred medical expenses, but SA Power Networks rejected his compensation claim.

The company, which builds and maintains the state's electricity infrastructure, argued that the injury "did not arise from employment and employment was not a significant contributing cause of the injury".

SA Power Networks said Mr Thelan was "merely undertaking activity preparatory to undertaking duties of employment".

But he submitted that his injury did occur when he was carrying out his duties of employment, and that he therefore deserved compensation.

Under his employment agreement, he started getting paid when he began his journey to a job, and he was required to use a company vehicle to get there.

In 2019, another judge had found that there needed to be a "real and substantial connection between the employment and the accident" as well as "a real and substantial connection between the employment and the journey" for an injury to be compensable.

But in this week's case, Judge Crawley said Judge Brian Gilchrist was wrong in his decision.

"I find that it is not a prerequisite to compensability that there be a real and substantial connection between the accident and the employment," the judgement reads.

SA Power Networks declined to comment.

New nuclear treaty will be 'ineffective': DFAT

Australia says a new United Nations nuclear treaty signed by more than 80 countries will be ineffective in eliminating nuclear weapons from the world.

The Morrison government has not signed the Treaty on the Prohibition of Nuclear Weapons, which comes into effect on Friday.

The treaty, signed by 86 countries, bans signatories from testing, developing, producing, stockpiling or threatening to use nuclear weapons.

The Australian government decided not to sign the treaty on the basis that it failed to recognise the realities of the current international security environment.

Government sources confirmed there was concern about how the treaty would affect Australia’s dealings with the United States, including intelligence sharing through the Pine Gap satellite surveillance base near Alice Springs, because it banned signatories from doing anything to assist a nuclear weapon state in its nuclear plans.

New Zealand, which is part of the Five Eyes intelligence-sharing agreement with the US, Australia, Canada and Britain, has signed the treaty.

As a party to the Treaty on the Non-Proliferation of Nuclear Weapons, signed in 1968, Australia is already prohibited from manufacturing or acquiring nuclear weapons.

A spokesman for the Department of Foreign Affairs and Trade said Australia shared the view of many other countries that the treaty “will be ineffective in eliminating nuclear weapons”.

“Australia is committed to the goal of a peaceful, secure world free of nuclear weapons, pursued in an effective, pragmatic and realistic way,” the DFAT spokesman said.

“Our long-held focus is on progressing nuclear non-proliferation and disarmament through a progressive, practical approach that engages all states, especially nuclear weapon states, in the process”.

Opposition foreign affairs spokeswoman Penny Wong said Labor welcomed the treaty.

"After taking into account the need to ensure an effective verification and enforcement architecture, the interaction of the treaty with the Nuclear Non-Proliferation Treaty, and achieve universal support, a Labor government would sign and ratify the treaty," she said.

"Australia can and should lead international efforts to rid the world of nuclear weapons. A Labor government would work with our allies and partners to this end and would always act consistently with the US alliance."

Helen Durham, director for international law and policy at the International Committee of the Red Cross, said all countries should sign the treaty as it was the “most explicit and clearest expression that the horrific weapons need to be banned”.

“It deals not only with their use but also with their threat of use, with their stockpiling, with their production, with their development and their testing,” she said.

“This treaty is a great opportunity to move a very stagnated, to date, agenda forward and we would encourage every state to take up this opportunity.”

Dave Sweeney, co-founder of the International Campaign to Abolish Nuclear Weapons, said the treaty was a “sign of hope for our planet”.

“The changed status of nuclear weapons means Australia faces a clear choice,” he said. “We either choose to be a responsible and lawful member of the global community or we remain silent and complicit in plans to fight illegal wars.”

Two alarming assaults on your freedom by a government that spruiks liberty

Coalition politicians who champion Donald Trump’s right to free speech have passed numerous laws making it a serious criminal offence to exercise this right in Australia. Labor parliamentarians have also helped pass laws criminalising speech that’s clearly in the public interest or simply innocuous.

When Prime Minister Scott Morrison was invited at a recent press conference to condemn far-right conspiracy theories promoted by government members such as George Christensen, he refused. He also defended another Liberal backbencher, Craig Kelly, who has undermined the government’s health message by spreading false information about COVID-19. At the time, Morrison said: “There’s such a thing as freedom of speech in this country and that will continue.”

In fact, there are severe constraints on free speech in Australia, more so than in North America or Western Europe.

The Coalition government’s 2018 security laws make it an offence to leak, receive or report a wide range of "information, of any kind, whether true or false and whether in a material form or not, and includes (a) an opinion and (b) a report of a conversation". Another clause makes it a serious crime to say anything that harms "Australia’s foreign relations, including political, military, and economic relations". Even if ministers should sometimes be circumspect, other people should be free to criticise any country without resorting to disinformation.

Jail sentences for some offences can be 15 or more years, even when little genuine harm results. There is no recognition that leaked information has never killed anyone in Australia. In contrast, secret intelligence generated by Australia and its allies has led to innocent people, including children, being killed in Afghanistan and elsewhere.

Parliamentarians have endorsed the serious erosion of core liberties over recent years. The rot set in when they abjectly acquiesced in the Australian Federal Police’s raid on Parliament House in 2016, with police accessing IT systems and seizing thousands of non-classified documents to search for the source of leaks to a Labor opposition frontbencher. The leaks revealed problems with rising costs and delays in the National Broadband Network – information that should have been public.

In an earlier era, ASIO and the AFP would never tap phones in Parliament House, let alone raid an institution at the pinnacle of Australia’s democratic system. The Parliament should have found the AFP in contempt. Instead, the politicians squibbed it and the AFP was emboldened.

Last July, after a protracted investigation, the AFP recommended charging an ABC journalist Dan Oaks, co-author of the 2017 series "The Afghan Files", which exposed alleged war crimes committed by Australian special forces in Afghanistan. In October, the prosecutor declined to proceed. The law should clearly state the AFP should not conduct an extensive pursuit of a journalist who was unambiguously acting in the public interest.

Undeterred, the Morrison government is pushing for more powers that undermine free speech and civil liberties. Its International Production Orders bill would give ASIO and the AFP the right to order communications providers in "like-minded" countries to produce any electronic data they request and remove encryption. One downside is that the FBI and a wide range of American law-enforcement and security bodies will have reciprocal rights to access private data held by Australian people and corporations. A big stumbling block is that the US law, called the CLOUD Act, prohibits other countries accessing American data if they have weaker privacy and civil liberties protections than the US. Australia falls into that category. The protection in European countries is even stronger than in the US.

In a bold move, Home Affairs Minister Peter Dutton last month introduced a bill creating extraordinary new powers to affect a wide range of people, not just paedophiles as the government claims. The bill covers all crimes with a jail sentence of three or more years. This includes whistleblowers and journalists and innocent people expressing an opinion that falls foul of foreign influence laws.

If passed by our politicians, Dutton's bill will give the AFP and Australia’s Criminal Intelligence Commission the ability to covertly take over a person’s online account to gather evidence of a crime. Even more disturbingly, they will have an unprecedented “data disruption power” to add, copy, delete or alter data on the internet.

Law Council president Pauline Wright described the proposed powers as extraordinary. She said allowing a member of the Administrative Appeals Tribunal to issue “disruption warrants” is of “particular concern” – only superior court judges should be able to make such orders.

Both these proposed new powers should be severely curtailed. No Australian government should be able to destroy individuals’ online data without a court finding them guilty of a crime. Nor should foreign security agencies be allowed to access Australians’ private information under the US Cloud Act.

Hurrah for Mark Latham

Bettina Arndt

Now, here’s some positive news for a change. Mark Latham has achieved a real breakthrough in his role heading up an inquiry into Higher Education for the NSW Parliament. The inquiry’s final report, tabled today, includes Recommendation 36 which seeks to abolish the kangaroo courts in NSW universities.

Here’s what it actually says:

That the NSW Government ensure the rule of law and the processes of the NSW criminal justice system are respected by universities in dealing with alleged sexual offences. Universities must use the NSW Police as their first and most important point of reference in dealing with any allegation of the law being broken, in all instances, for all allegations. In particular, NSW universities must respect the presumption of innocence and not create their own ‘Kangaroo Court’ and tribunal processes that circumvent the rules and standards of natural justice established at law by the NSW Parliament. The NSW Government should establish a legal protocol for universities to follow in this regard and, if universities chose to ignore or breach it, the protocol should be legislated as mandatory for NSW universities.

This is the first time an Australian government has been asked to take action on the appalling system for adjudicating sexual assault in our universities, which usurps criminal law and denies accused students their legal rights.

That’s pretty exciting and it was good to see the submission from our Campus Justice group featuring prominently in the report. (See p80 - 81, 6.47- 6.49)

Next step is the report will be considered by Cabinet – which is where you come in. We must get a heap of letters into Cabinet Ministers to give them the backbone to follow this through. See here – a draft letter you can use to urge each Cabinet Minister to ensure action on this issue, plus email addresses of the ones we want to lobby.

So that’s your first task for 2021 – just a few minutes of your time to make sure we tip the balance on this critical issue. After the End Rape on Campus activists’ efforts to destroy me last year, I’m even more determined not to let these wicked witches win. But I need your help.

Coercive control inquiry closing next week

Mark Latham has put out a plea for more submissions to the NSW Coercive Control inquiry – the deadline is Jan 29 so that is coming up very soon. The feminists are swamping the inquiry with letters/submissions urging this to be added to the armory women can use to destroy the men in their lives. And they are out in force massaging public opinion to show women are never really perpetrators.

Look at this research by Melbourne University academics suggesting women never use force without having good reason – like a controlling husband. “There is only so much a person can take. Everyone has a breaking point,” they quote one woman who ended up in a violence program after breaking a window. She admitted she was intoxicated, “using alcohol to help with the fear and anxiety.” We won’t tolerate excuses for violence from men but with women it is different, of course.

I’ve been looking at some fascinating statistics from the UK. There were 24,845 coercive control incidents recorded in England and Wales in the year ending March 2020. But that resulted in only 305 convictions, 301 men and 4 women. That ratio is hardly a surprise. The coercive control legislation is supposed to be gender-neutral but most men are reluctant to see themselves as victims and know if they complain they are unlikely to be taken seriously by police and the legal system.

So here we have this flood of complaints chewing up valuable police time but most come to nothing due to either women withdrawing their complaints or difficulty providing evidence for nebulous crimes like economic abuse, “invasive surveillance”, “gaslighting” and “denying freedom”.

We certainly don’t need this nonsense adding a huge burden on our own stretched legal system.

That’s why I need you all to do another little job for me – and for the men of NSW. Here's the link to make a submission and here is background information you can use to object to new legislation on coercive control. At minimum you can just write a few sentences, or a paragraph or two.

We’ve allowed so much of our legal system to be weaponized against men. Here’s a chance stop it getting any worse.




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