Sanicki Lawyers Melbourne

+61 3 9510 9888

by

Great Article from the team at themusic.com.au

In light of Sony Music Entertainment Australia’s ongoing workplace crisis, ‘The Music’ team has been speaking with industry across the country to gauge their reaction on what this means for the Australian music industry. Here, ‘The Music’ team share these thoughts, as well as our own as publishers, to examine whether this is the catalyst for change the music industry has been needing.

Here’s what we know so far 

On 13 June, it was revealed that Sony Music’s US head office was reportedly “investigating claims of discrimination, bullying and harassment” within the Australian arm of the business.

It was revealed that the company’s global head of human resources had contacted past and present employees following complaints from a staff member at the label’s Sydney office. A source told The Sydney Morning Herald that the company “has held confidential discussions with at least four former and current staff members”, with others contacting the HR executive directly.

In the time since, three high level Sony Music Australia executives have been removed from their roles – either permanently or pending ongoing investigations. 

On Monday, it was announced that long time Australian leader Denis Handlin AO – Chairman and CEO of Sony Music Entertainment Australia and New Zealand – would exit the company “effective immediately”. The news was broken to Sony Music Australia staff in an internal email on Monday morning with Chairman, Sony Music Group CEO, Sony Music Entertainment Rob Stringer saying “I am writing to let you know that Denis Handlin will be leaving Sony Music Entertainment after more than 50 years with the Company, effective immediately.”

“It is time for a change in leadership and I will be making further announcements in terms of the new direction of our business in Australia and New Zealand in due course,” the email continued. “My team and I will be speaking further to your team leaders about this process throughout the week, but at this point I wanted to let everyone know this news at the same time…” Prior to his dismissal, Handlin was the business’ longest running employee anywhere in the world, having started as a junior record assembler in 1970 and working his way up the ranks. 

On Tuesday night it was revealed that Handlin’s son Pat is one of two executives to be placed on “indefinite leave” amid the ongoing investigation. Pat Handlin – who is the Australian business’ vice president of artists and repertoire (A&R) – started with the company as an intern in 2006 and has held various A&R roles both in Australia and the UK. 

In addition to Pat, Sony Music Australia’s senior vice president of strategy, corporate affairs and human resources Mark Stebnicki has also been stood down. Stebnicki has worked for the company for over 14 years, starting as a business and human resources advisor. 

The news was told to Sony Music Australia staff in a meeting on Tuesday. 

Prior to the initial 13 June investigation announcement, vice president of commercial music Tony Glover was fired from the Australian business following an investigation of inappropriate behaviour allegations that took place over numerous weeks. “Upon receiving complaints of alleged inappropriate behaviour, a Senior Counsel was immediately engaged to independently investigate the allegations,” a Sony Music Australia spokesperson said at the time. “Following completion of the investigation, the company acted on the findings. Sony Music Australia can confirm that Tony Glover has been dismissed with immediate effect.”

In the time since the announcement that Handlin was exiting the business earlier this week, a number of reports have emerged with allegations surrounding workplace culture at the Australian business. Most notably is a story from The Guardian where more than 20 former employees have come forward anonymously with allegations of “toxic culture” at the Australian business, including “allegations of sexual harassment at work events, intimidating behaviour, alcohol abuse and the unfair treatment of women in the workplace” which are reported to be span more than two decades. Read the article here.

It’s since been reported that Lauren MacDougall from MacDougalll and Hydes Lawyers has been contacted by a dozen former employees of Sony Music Australia to discuss a potential class action lawsuit. 

Additionally, Sony artists and managers have told The Music that they “really have heard nothing of substance” since the departures and remain in the dark about what’s next for the business. “Effectively, we found out much the same way that everyone else did,” one insider shared. “I did speak with one of the members of our team after the news of Denis, and they kind of just reiterated that it’s business as usual.” Read the full story here. 

The Take Aways 


Point 1 – This was always coming 

The Australian music industry’s day of reckoning as a whole – and whether this is it or not will be decided – was an inevitability. There have been too many anecdotes told, too many hushed stories of bad behaviour, too many instances without consequence; not just at Sony but within the industry as a whole.

Australia’s strict defamation laws have often limited the ability of these stories being told by victims and media, particularly in the time of #MeToo. Now, thanks to work of channels like Beneath The Glass Ceiling, campaigns like #MeNoMore and the brave work of artists like Jaguar Jonze, more and more stories have been coming to light. 

Point 2 – We will never hear the full story 

Whilst the incredible work of journalists at The Guardian and Nine has led to the current industry wide examination, the facts are that we will never know everything that’s occurred as there are still many in fear of what speaking out may mean to theirs, and others, careers. 

One industry insider, who has chosen to remain anonymous, has said that “There is still a fear factor in all of this”. 

Point 3 – This will affect change in our industry 

In the past few days, The Music has received an overwhelming response from industry about wanting a cultural change in our business. The current happenings at Sony can provide opportunity for the changes which have occurred in smaller organisations to now happen at a “major”. 

We need more diversity in leadership roles and board rooms, we need for pregnancy to not be a cause for redundancy, we need safer working environments. The door is now open for Sony Music Australia to make a statement that would resonate to the whole of the Australian music industry.

Point 4 – The next head of Sony Music Entertainment Australia has an undeniable challenge ahead of them 

How do you change an entire workplace culture?

History shows that it is unlikely that the current dismissals will be the last and that any deep investigation will lead to more allegations in regards to what has occurred under Handlin’s leadership. An industry figure shared that the position as the ‘poison chalice’ that no one wants to grab. Not only will new leadership have this to contend with, there’s also likely at least a year of turmoil and possible lawsuits ahead. 

Speaking with industry representatives, it seems people think it’s likely that a two-step process will occur. “They need to bring an outsider, possibly from overseas, in to do the clean out whilst finding a new head in Australia who can start with a clean slate,” one insider shared. 

Point 5 – This can be the catalyst but we need to act now

There’s no denying that current leaders across major organisations in this industry are overwhelmingly white, straight and male. The conversation this week has been clear – Sony has the opportunity to lead change and appoint a leader outside of this demographic, with a number of names being put forward by industry representatives already. 

One manager shared their dismay at the lack of diversity at the top of labels globally, something that made a substantial impact for their artist. 

It’s not just anecdotal either, the hard evidence is there. Last week, the USC Annenberg Inclusion Initiative – a “leading think tank in the world studying diversity and inclusion in entertainment through original research and sponsored projects” run through the University Of Southern California in the US – shared its Inclusion In The Music Business: Gender & Race/Ethnicity Across Executives, Artists & Talent Teams report. 

The study found that across the 4,060 executives surveyed across 119 US companies and six industry categories – music groups, labels, publishers, radio, streaming, live music/concert promotion – that there was a huge disparity in the representation of women and POC leaders. 

“The study examined executive diversity in three ways: among CEOs and presidents across 70 major and independent companies; across senior management teams at nine major music companies; and in executive roles across 119 companies from the VP-level and above in six industry categories,” read the report results. 

“Beginning with the CEO, chair, and president roles across 70 major and independent music companies, 13.9% of top executives across were from underrepresented racial/ethnic groups, 4.2% were Black, and 13.9% were women. Unlike the majors, there were 10 underrepresented CEOs running independent companies across the music industry. However, only 2 of these were underrepresented women and only 3 were Black.” See the full report here.

Keep in mind that these numbers are reflective of the US music industry but there are some hard comparisons that can be drawn to the Australian industry. 

It’s an obvious call for change and one that needs to be met for our industry to move past its current ‘old guard’.

Sony Music Australia has the opportunity to do this and we call on them to do so; to show that diversity matters, to show that inclusion matters. 

This needs to be the example – not the exception but, in fact, the rule. It’s time.

Filed Under: Music & Entertainment, News Tagged With: ,

by

Interesting article by Bianca ONeill on FashionJournal.com.au about defamation and social media quoting our own Jonathan Xian!

Will the groundbreaking defamation case brought by Dolce & Gabbana change the landscape for call-out account creators?

The news about famed Instagram call-out account Diet Prada being sued has surely instilled fear in the hearts of the (often anonymous) admins of similar accounts overseas and back here at home – but for the accusers and their fans, it’s only going to add fuel to the corporate accountability fire.

But before we delve into the ramifications of such a ground-breaking legal stoush, here’s a little update in case you’re not an expert on viral social media accounts like Diet Prada.

Interested in accountability and cancel culture? Head on over to our Life vertical. 

Earlier this year the 2.6 million-strong Instagram call-out account – known mostly for exposing allegations of everything from cultural appropriation to sexual harassment within the fashion industry – dropped another bombshell. Only this time, it wasn’t in the form of accusations against a noted fashion figure.

Instead, it was a post featuring its own newsworthy headline: that it was being sued by Italian fashion giant Dolce & Gabbana for defamation. Reports suggest the fashion label is seeking an astronomical figure of over $600 million euros in damages.

“With so much anti-Asian hate spreading in the US, it feels wrong to continue to remain silent about a lawsuit that threatens our freedom of speech,” its recent Instagram post began. “The lawsuit argues that we should be held responsible for lost revenue and other harm to Dolce & Gabbana and its co-founder Stefano Gabbana after we criticized their 2018 advertising campaign on Weibo for its stereotypical and sexist depiction of a Chinese woman, and revealed anti-Asian remarks originating from Gabbana’s Instagram account.”

“Shortly thereafter, in early 2019, the brand filed an action for defamation demanding that we pay damages in the amount of €3 million for Dolce & Gabbana and €1 million for Stefano Gabbana… Having cultivated Diet Prada as a platform where we can denounce racism, amplify stories from the larger BIPOC community, and hold the fashion industry to a higher ethical standard, has been one of the most rewarding experiences thus far and our only hope is to protect that.

Call-out Instagram accounts like Diet Prada have seen their share of controversy over the last few years, even before this latest legal challenge. On one hand they can provide important checks and balances when it comes to questionable practices within creative industries, and deliver reportage on stories that often wouldn’t make it to print among the more mainstream media outlets.

On the other hand, some critics have accused these accounts of bullying, while also feeding into a form of misplaced ‘cancel culture’ that doesn’t allow a company or celebrity to right their wrongs before being ‘cancelled’. No matter which side of the fence you sit on, there’s no doubt that this case will set a precedent across the globe, and any positive outcome for Dolce & Gabbana will likely strike fear into the minds of moderators running their own call-out accounts.

Local Instagram creator @esteelaundry has had its own headline-grabbing public tousles with well-known brands. It’s quite breathtaking to watch, as a consumer – a much-loved mega brand being swiftly and efficiently brought to task via an anonymous collective on Instagram – particularly considering our low expectations when it comes to big companies making big changes behind closed doors. (Or, in the great tradition of corporate stuff ups, waiting long enough for the news cycle to turn in the hope that the problem will go away.)

But it’s also important to question the ethics and legality behind publishing accusations from ‘anonymous’ DMs to an account run by an anonymous collective, as well as the level of fact-checking done before whacking a screenshot up on stories without seeking comment from the accused party.

Many journalists have mused over the identity of Estee Laundry, and the most information it’s ever given up was in an interview with The Cut back in 2019. “It’s a group of people located around the world,” the anonymous co-founder said. “There are three co-founders. We think of ourselves as a collective. We’re all friends; we knew each other before we started the account. All of us work full-time in the beauty industry in some capacity. This is a passion project we do in our free time.

In Australia, anonymous accounts like Estee Laundry have been the subject of speculation regarding litigious brands and celebrities. Just last month, local celebrity and influencer satire account Celeb Spellcheck, which lampoons spelling errors and other gaffes from celebrities and influencers alike, deleted hundreds of posts after rumours circulated that the person or people behind it were about to be unmasked, or that they were subject to legal threats – a claim the author/s of the account have since denied.

Since then, after a brief return, the mysterious insider – who previously admitted to being based in Melbourne and working in public relaitons, but nothing more – shut shop for good, citing that the account had become “too big, too powerful and too time consuming for me to enjoy running it anymore”. These days, it simply posts old celebrity images from the ’90s and ’00s, commentary (and litigation) free.

And while Estee Laundry and Celeb Spellcheck are at different ends of the spectrum – one acting as an industry watchdog, and the other as comedic relief – they share a common concern: exactly how legal is it to publish accusatory or inflammatory information to millions of followers?

Jonathan Xian, a solicitor at Sanicki Lawyers, an entertainment-focused law practice that specialises in defamation law, tells me that, hypothetically, a similar case to the Diet Prada vs Dolce Gabbana challenge in Australia would face many difficulties. The iron-clad defence to accusations of defamation is that the posts represent ‘substantial truth’, or alternatively that the posts reflect an ‘honest opinion’ – two defences Diet Prada appears to have on its side – but that doesn’t mean creators should see social media as a consequence-free publishing environment.

“We have acted in many matters involving social media publications,” says Xian. “In most cases, people do not realise that social media publications carry the same weight, in the eyes of the law of defamation, as ‘traditional’ forms of publication, such as newspaper or television.”

“Facebook and Instagram are often seen as a ‘free-for-all’ environment, in which call-out culture prevails and freedom of speech is taken for granted. In reality, due to the ease with which information spreads on social media, defamatory publications made on social media can have far-reaching and highly damaging consequences, which should not be taken lightly.”

Sure, freedom of speech is the beloved catch cry of internet warriors and Instagram influencers alike, but where does it lead? Do the companies and their employees who run afoul of disgruntled ex-employees and social media anti-fans actually learn their lesson and instigate change? Or does it simply fade into the background of yesterday’s news?

Australian call-out account Estee Laundry tells me that its revelations have not only encouraged large beauty companies to respond, but also to change for the better. The anonymous collective tells me that accused beauty brands have “made major changes” after it reported alleged claims of “racism, sexism and inappropriate conduct”.

Estee Laundry also refutes the idea that the accuracy or credibility of its work could be called into question, explaining that not only were some allegations published on the record, but also insisting that it personally takes the time to do the research.

“We ask for receipts (in the form of emails, DMs or other forms of communication)… allegations came from past and current employees, some of whom were happy to go on record to mainstream media outlets.

“It’s harder for allegations like bullying and racism where they’re casual and intrinsic, but we give victims the space to share their stories. We do validate that these stories are coming from individuals who’ve worked for or have professional ties with these entities.”

When asked whether the Diet Prada legal spat will affect the way it runs its account, Estee Laundry’s spokesperson seemed unperturbed, and noted that while coverage on mainstream media is often intrinsically tied to the lure of advertisers, accounts like Estee Laundry are left to fill the accountability gap.

“We think it’s important to have independent commentators to move the beauty and fashion industries forward. Mainstream channels don’t criticise their sponsors/advertisers because their revenue depends on it. Our aim is to make the beauty industry more inclusive by highlighting issues like racism, cultural appropriation, sustainability and bullying.”

Meanwhile, over at Diet Prada, its vigorous reporting of the appointment of then-new Teen Vogue editor, Alexi McCammond – who discovered the ire of the internet after old anti-Asian tweets re-emerged upon her appointment – whipped up enough of a frenzy amongst its followers to play at least some part in her exit, less than two weeks later.

The conclusion? Beware the new world (internet) order: call-out accounts are now king, and there may not be any legal way to silence them. Oh, and delete your old Tweets, for God’s sake.

Find out more about call-out culture here. 

https://fashionjournal.com.au/life/call-out-accounts-diet-prada/

Filed Under: Defamation, News Tagged With: ,

by

Binding Financial Agreements (‘BFAs’), also known as pre-nuptial agreements, allow couples to protect their individual assets and debt liability, and opt out of having their property settled by court orders, should their marriage, or de facto relationship, end.

However, the case of Hoult & Hoult (2013), confirmed that unlike other Family Law remedies, such as separation and consent Court Orders, BFAs will not be set aside solely because they are unfair or unjust to one party. Instead, BFAs operate similarly to contracts by binding parties to their agreed terms, even if it were a very unfair deal. Consequently, the very nature of these agreements means that they often significantly favour one party over the other.

As a result, before entering a BFA, s 90G Family Law Act 1975 requires you to seek independent legal advice to consider the advantages and disadvantages of a BFA, prior to signing it. As seen in Thorne v Kennedy [2017], this law also operates to protect you from undue influence or unconscionable conduct, which would enable a court to set aside your BFA. This principle was part of the basis for an application to set aside a BFA in Frederick & Frederick [2018]. However, the trial judge found that the mere fact the applicant was concerned her partner would end the relationship should she refuse to sign the BFA does not constitute undue influence or unconscionable conduct.

Despite this, the appeal of this case, Frederick & Frederick [2019], illustrates a caveat of this principle. Set out in section 90K(d) Family Law Act 1975, courts may overturn BFAs where circumstances have changed to such an extent it would cause one parent hardship, should the BFA not be set aside. As seen in Frederick, changes such as having a child since signing the agreement, particularly with a disability, will likely cause hardship to the parent with lesser assets.  

Therefore, while your personal circumstances at the time of signing the BFA may not be relevant when the court considers whether to set it aside, changes to these circumstances may play a role, should the validity of the agreement come into question. Therefore, it is important to seek good legal advice to protect both your financial position in the present and future.

Our specialist law team at Sanicki Lawyers has the necessary skill and experience to prepare a BFA which considers a wide variety of circumstances tailored to your personal situation. Further, we can advise you on whether a BFA is in your best interests to protect your financial position in the event of relationship breakdown.

So don’t delay – contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.

Filed Under: Family Law, News Tagged With: , , , , , , , , , , , ,

by

Family report writers are independent third parties who provide expert evidence to the court. Their knowledge, experience and skill in assessing family environments and preparing reports are extremely valuable to the Court’s decision making. However, as in all professions, some experts act unethically and breach their professional obligations. As a result, the integrity of their work – and the quality of their recommendations – may be called into question.

This was the case in McElhinney & McElhinney, where the psychologist who prepared the family report was disqualified from practice, because they formed a personal relationship with a former client. While both parents in the dispute agreed the report writer should be discharged, the father wanted another psychologist from the same practice to continue the report. The mother disagreed, arguing a new report should be written.

The Court held that the disqualified psychologist’s report was inadmissible and a new one should be prepared, because the fact the psychologist was suspended raises a reasonable apprehension to the integrity of their decision making and opinions. Thus, if another psychologist from the same practice were to complete this report, at least part of the report would still be based on the disqualified psychologist’s opinions.

However, contrast this decision to Behrendt & Cadenet (No. 2), where a father sought to dismiss a family report writer because he had lost confidence in the writer’s ability to form an opinion exclusively based on evidence. Despite this, the father failed to substantiate his claim that the report  writer’s opinion was compromised in any way.  Instead, the court in this case considered Bookhurst & Bookhurst, which held that an expert will not be disqualified just because one party believes the evidence is at odds with his/her version of logical reasoning.

Therefore, a parent’s mere belief or assumption that the family report writer’s opinion may be compromised is not sufficient enough to discharge them from their duty. However, where a report writer has been suspended for professional misconduct due to their unethical conduct, this is grounds to discharge them, and order a new report to be prepared by a new expert.

Therefore, if you have evidence your report writer has acted unethically, or you believe the integrity of the report has been, or will, be compromised, you should seek legal advice immediately.

Our specialist Family Law Team at Sanicki Lawyers has the necessary expertise to help you prepare this application and present your case. Further, if the other party to your case is trying to discharge your expert witness, but you do not believe the expert has done anything wrong, you should seek legal advice to present your position to the court.

Contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.

Filed Under: Family Law, News Tagged With: , , , , , , , , , , , ,

by

COVID-19 travel restrictions and social distancing orders have affected families across Australia. Particularly, for families with court-issued parenting orders requiring travel, it may not be reasonably practicable to follow these orders during this time. However, unless the contravention of an order falls under the ‘reasonable excuse’ definition in section 70NAE Family Law Act 1975, serious sanctions may be imposed against the parent. As this section is primarily concerned with protecting the child or parent’s health and safety, the parent must reasonably believe the contravention was necessary to provide protection.

This was the central feature of Kardos & Harmon [2020], where a mother contravened an order requiring her to travel interstate to bring the child to the father during the pandemic. The Court held the mother’s concerns for the child’s health and effect of border restrictions, which would require herself and the child to self-isolate for two weeks, constituted a reasonable excuse under section 70NAE(4)(a–b). This decision was influenced by Riberio & Wright [2020] at [6], which noted that the health, safety and well-being of children and families is the most important consideration during COVID-19. Therefore, the court will balance the importance of a child receiving emotional support of both parents, and mitigating risks of the child coming into contact with the virus.

However, the decision in Pandell & Walburg (No. 2) [2020] illustrates a situation where the mother had evidence that the child’s pre-existing health concern increased their risk of adverse reaction, should they contract COVID-19. This constituted a reasonable excuse to disallow the child to spend time with the father, breaching court orders. However, once updated evidence provided that the child was not at a greater risk, the mother no longer had reasonable excuse to breach the orders. This case demonstrates how a family’s individual circumstances play a very influential role in determining whether a reasonable excuse exists.

Therefore, if COVID-19 restrictions are preventing you from complying with your parenting orders, you must ensure you have a ‘reasonable excuse’ to do so, based upon your individual situation.

Our specialist law team at Sanicki Lawyers can consider your personal circumstances and advise you on whether you have a reasonable excuse for contravening your court orders.

Critically,  a contravention application by an unhappy parent may still be dismissed by the Court – even in cases of a breach of Orders – should the application be ‘petty and unwarranted’, as in Adam & Tan (2019). In this case, the mother’s contravention effected from genuine miscommunication, resulting in a mistake. The application was dismissed because the mother had taken steps to remedy the situation once becoming aware of it.

If you are concerned about complying with family law parenting Orders because of Covid-19, or if the other parent of your child (or children) are breaching parenting Orders due to Covid-19, then contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.

Filed Under: Family Law, News Tagged With: , , , , , , , , , , , ,