By Rick Sarre, University of South Australia; Juliette McIntyre, University of South Australia; Lisa Parker, University of South Australia; Michelle Fernando, University of South Australia, and Sarah Moulds, University of South Australia
Editor’s note: This column focuses exclusively on Australian law, but we thought it was a fun read to add to HR Law Canada.
We’ve all been at a work or family gathering when someone has offered a seemingly authoritative statement about the way the law operates.
Without some knowledge of the field of law, listeners may simply nod their heads sagely and tut-tut about the perceived inadequacies and injustices that have been revealed.
But there are many misconceptions about the law. Here are eight common falsehoods.
1. If people laugh at my joke then it’s not sexual harassment
This is not correct. Sexual harassment is defined as any unwelcome sexual behaviour that makes a person feel offended or humiliated, where that reaction is reasonable in the circumstances.
A survey by the Australian Human Rights Commission found over the past five years, one in three workers experienced sexual harassment in their workplace. The survey found reporting of workplace sexual harassment remains alarmingly low, at only 18%.
Women (41%) were far more likely than men (26%) to experience harassment. More than three-quarters of harassers were men.
In November, the federal parliament passed the Respect@Work bill which creates a positive duty on all employers to implement measures to prevent sexual harassment.
2. I don’t have to give my name and address to police, as I have a right to silence
The right to remain silent when questioned by police is a fundamental protection provided by the common law. However, this right is not absolute, and does not mean you don’t have to give them certain personal information.
Legislation in every Australian jurisdiction gives police the right to ask for details that will assist their enquiries. For example, in South Australia, you must provide your full name, date of birth and address if a police officer has reasonable cause to suspect you have committed or are about to commit an offence, or if you may be able to assist in the investigation of an offence.
It’s an offence to refuse to give police your personal details, or if you provide false or misleading information. Police can also ask you to identify drivers of motor vehicles in which you’re travelling. But they can’t demand that you answer any further questions, and must give you a caution that anything you might say may be later used in evidence.
Where there has been a violent arrest, or the arrested person is unable to appreciate or understand their rights, the caution must be repeated once the arrested person has settled down or sobered up.
3. My boyfriend moved in with me a year ago and left last week, so now I have to give him half of my assets
For a person in a de facto relationship to be successful in any property settlement, they must satisfy the Family Court that:
- the relationship has lasted at least two years
- or the parties have had a child together
- or the relationship was registered under a state or territory relationship registration scheme
- or one party has made substantial financial or non-financial contributions to the other party and that serious injustice would result if an order were not made.
Also, there’s no presumption of a 50:50 split in Australian family law. In determining a just and equitable division of property, the court will consider the parties’ respective assets, the contributions each party has made to the relationship, and each party’s future needs.
4. I’m not responsible for things others write on my Facebook
While it may be hard to believe, you may still be liable for things others post on your social posts, even if you don’t know about them.
In 2021 the High Court ruled that media companies could be liable for defamatory comments made by readers on their Facebook posts. The ruling extends beyond Facebook and likely applies to any social media platform including Instagram, TikTok, Twitter and LinkedIn.
It also extends beyond media companies and covers businesses and private individuals, including those running online community groups and forums, such as administrators of Facebook groups.
But watch this space – state and territory attorneys-general have just given in-principle agreement to amend defamation laws to protect “internet intermediaries” such as social media administrators. The details are yet to emerge but are not likely to defend egregious comments that should have been noticed and removed by a person posting on their own social media platforms.
5. I can leave my kids in the car for a few minutes so long as I leave a window open
This is not true. While every jurisdiction in Australia has slightly different laws, it’s generally an offence to leave a child unattended in a car regardless of whether they suffer any distress or injury.
Any police attention, and charges that may flow from that, will depend on the circumstances of the alleged neglect, including the ambient temperature, the extent of child distress (if any), and the proximity of the driver including the time taken for them to, for example, pay for fuel.
Opening a car window does not negate criminal charges.
6. I can urinate in public if it’s on my back tyre
If this was once the law with horses and drays, it is no longer the law today. Any such displays in public (especially in a built up area) can amount to “offensive behaviour” and can be prosecuted.
However it’s entirely contextual. For example, marathon runners who receive urgent calls from Mother Nature would be unlikely to be prosecuted.
7. Saying you wish Charles would cark it so William can be king is treason
The offence of treason still exists, but one must do more than declare disparaging (or even treacherous) thoughts about the reigning monarch to excite the authorities into prosecuting.
The Commonwealth Criminal Code section 80.1 sets out what amounts to treasonous behaviour. You really have to be serious about acting on your declarations before the treason threshold is reached.
8. Australian consulates overseas are Australian territory
This is a common misconception. Article 31 of the Vienna Convention on Consular Relations provides some protection to consular premises from outside intrusion.
This includes a rule that the police of the host state can’t enter consular premises without the consulate country’s permission, unless it’s an emergency. But this doesn’t turn the consulate into Australian territory.
Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia; Juliette McIntyre, Lecturer in Law, University of South Australia; Lisa Parker, Lecturer in Law, University of South Australia; Michelle Fernando, Senior Lecturer in Law, University of South Australia, and Sarah Moulds, Senior Lecturer of Law, University of South Australia