Survivors of sexual violence often wish to obtain professional counselling as part of their healing and recovery.

It is not uncommon for a victim survivor to firstly seek reassurances that any communication they may have with a service provider will be kept confidential.

Service providers and their employers are aware these communications are highly sensitive and will respect a victim survivor’s need for confidentiality where possible.

There are, however, circumstances where file notes and other documents relating to a victim survivor which are held by a service provider are required to be released.

Circumstances where communications may be disclosed are:

• If requested by the victim survivor;
• If required by law; or
• If the service provider determines that the victim survivor or another person is at serious risk of harm.

A REQUEST BY A VICTIM SURVIVOR

A victim survivor may request their file from a service provider.  That file should be provided promptly.  The request should be in writing.  It should be signed and dated.

One example where a victim survivor may want their file is if that person chooses to commence legal proceedings against the alleged perpetrator.

The victim survivor may wish, for instance,  to brief their own lawyer with that material.

REQUIRED BY LAW

There will be circumstances in court proceedings involving a victim survivor where disclosure of a service provider’s file will be demanded by the Defendant or some other party.

In certain significant circumstances, this disclosure is prohibited by legislation.

The rules protecting the information from disclosure differ depending on the type of proceeding and the State where proceedings are commenced.

The following information relates to court proceedings involving sexual violence that have been brought in Tasmania.

Criminal proceedings

A person may be charged with a criminal offence involving the sexual abuse of a victim survivor.

In relation to the prosecution of a person for a criminal offence in this context it is clear sexual assault counselling communications relating to a victim survivor cannot be compelled or disclosed without that person’s written consent.

This means that any application made to a court for a subpoena or summons for this information made by the Defendant or other person must not be granted by a court.

This also means any informal request for this information made the Defendant or any other person can be ignored.

Tasmania is the only State in Australia with this blanket protection.

If you are a victim survivor who receives a request or demand for disclosure of your file for criminal proceedings in another State or Territory in Australia, you should promptly obtain legal advice.

Civil proceedings

A service providers file relating to the sexual abuse of a victim survivor can be compelled in civil proceedings in Tasmania in certain circumstances.

A defendant or other person can make an application to a court to require the disclosure of these documents.

It is the court’s decision as to whether disclosure is permitted.

In making this decision, a court will balance the public interest of maintaining a communications confidentiality against the public interest of allowing an alleged perpetrator the ability to understand and respond to the allegations against them.

The court must direct that the information not be disclosed where the likely harm to the victim survivor outweighs the benefit of the evidence being disclosed.

In considering an application for the disclosure of a service provider’s file the court will consider;

• What relevance the documents may have to the proceedings;
• The importance of the evidence;
• Whether other evidence is available;
• Possible harm to the confider; and
• The public interest in maintaining confidentiality.

Family Law

In family law matters, confidentiality concerning a file relating to a victim survivor which are held by a service provider is not guaranteed.

Section 10D of the Family Law Act 1975 (Cth) allows courts to prevent protected confidences from being produced or used, including material sought by subpoena.

The courts balance the value of the evidence against likely harm and the public interest in preserving confidentiality.

Disclosure may nevertheless occur with proper consent, where required by law, or in specified circumstances involving safety, serious threats, criminal conduct, or if it is in a child’s best interests. Each request should therefore be assessed carefully before records are produced.

Please don’t hesitate to contact me for further information or advice if you:

1. Are a victim survivor who needs to discuss the legal consequences of seeing a sexual assault counsellor; or
2. Are an organisation that provides support to victim survivors of sexual abuse.   

Beth Hanley

Lawyer: Dobson Mitchell Allport

T. +61 3 6410 0063

Beth.Hanley@doma.com.au

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The request was denied, following which Mr Duong commenced proceedings in the FWC under s 65B of the FWA, which permits employees to challenge employer refusals of requests for changes to working arrangements made under the flexible work provisions.

In his ruling, Deputy President Bell (DP Bell) was required to consider whether this request constituted a change to a “working arrangement”.

As DHL’s Electronic Devices Policy was a safety-oriented policy designed to reduce distractions and minimise safety risks within the DHL warehouse facility, DP Bell concluded – albeit “with some hesitation” – that the policy was sufficiently connected to performance and as such, constituted a working arrangement for the purposes of the FWA.

The decision rejects DHL’s argument that working arrangements are confined to traditional matters such as hours, patterns, and locations of work. Instead, it suggests that workplace rules and systems that are sufficiently connected to the performance of work, including safety requirements, may fall within the scope of a flexible working arrangement request under s 65 of the FWA. As a result, employers may face a broader range of flexible work requests seeking exemptions from, or modifications to, workplace policies. However, given DP Bell’s express hesitation in reaching this conclusion and recognition that s 65 of the FWA is ordinarily directed towards more conventional working arrangements, it is likely that the decision will be confined to workplace safety measures or policies that have a similarly close connection to the performance of work.

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The applicant, Mr Eklom, commenced employment at Storage King as a storage consultant in September 2023 and later assumed responsibilities equivalent to that of a full site manager.

The first respondent, Mr Marshall, initially a customer and later a contractor who assisted with cleaning and maintenance for the company, made repeated homophobic and sexualised comments towards Mr Eklom.

He said the contractor referred to him as the “office boy”, and made comments like “Oh, the gay boy is cleaning again”, “He probably likes it that way”, and “You sure you are not just into blokes?”  Mr Marshall would also engage in “unwanted physical contact”, including by shoving or bumping into Mr Eklom.

The second respondent, Mr Marshall, a significant customer of the business, later became friendly with Mr Marshall, and subsequently joined in making sexualised remarks and harassing the applicant, including suggesting degrading behaviours and making derisive comments.  Mr Eklom said they regularly referred to him as the “gay boy” and “the storage queen”, a play on the business name, the Storage King.

He said that in January 2025, Mr Mitchell said that Mr Eklom had been “Getting tied up and left in a shed” and Mr Marshall replied, “He is probably used to it”, which Mr Eklom believed implied that because of whatever sexual orientation they presumed him to be, he would enjoy “fetish play” that involved being tied up.

During another incident, when Mr Eklom bent over while cleaning, Mr Marshall said he had bent over “to clean the shed like he is practising for something” and Mr Mitchell responded, “Yes, we know you like it that way”.

They also made comments about him “getting pounded” or raped in the shed, and said that if someone followed him into the shed, “It will turn into a sex party”.

The harassment caused Mr Eklom significant emotional distress, resulting in diagnoses of anxiety, stress and depression.  He eventually complained to his employer, but the complaint was dismissed, and applicant was subsequently terminated after taking personal leave.

Mr Eklom filed an application in the Federal Circuit and Family Court of Australia in July 2025 seeking declarations that there had been a contravention of s 527D the Fair Work Act 2009 (Cth), by the respondents engaging in sexual harassment of the applicant, who was a worker within a business or undertaking; seeking pecuniary penalties that arose from that contravention and also seeking compensation pursuant to s 545(2)(b).  The original application alleged that his employer had also breached the Fair Work Act because of the activities of the respondents, but that claim was withdrawn once it was made clear that they were never employees.

The respondents did not engage at all in this process.  The hearing was conducted in their absence and Judge Vasta proceeded to make the declarations sought, finding that:

• Section 527D of the Fair Work Act, a relatively new section which prohibits sexual harassment in connection with work, had been breached by the actions of both respondents, which fell squarely within that definition.
• The harassment was deliberate, repeated and degrading, manifesting in a pattern of behaviour that caused significant emotional harm to Mr Eklom.
• The respondents were ordered to pay the sum of $90,000 as compensation for loss suffered by the plaintiff due to their contraventions of section 527D of the Fair Work Act 2009, reflecting the serious nature of the harassment and its detrimental effects on Mr Eklom.  The court determined that the second and third respondents were jointly and severally liable for compensating the plaintiff for the loss.
• The respondents were each ordered to pay a $13,000 pecuniary penalty to Mr Eklom.  The pecuniary penalties were imposed to achieve specific and general deterrence, ensuring the respondents and others were dissuaded from engaging in similar misconduct in the future, in line with principles previously established by the High Court.
• No aggravated damages were awarded as the respondents’ lack of engagement was not considered an aggravating factor.
• The court declined to award aggravated damages, as the respondents’ failure to engage in the process was not deemed to be an unreasonable act causing additional expenses for the plaintiff, nor were costs awarded as the plaintiff would have incurred the same expenses regardless of the respondents’ non-participation

Section 527D, which came into effect in March 2023, was incorporated into the Fair Work Act to expressly prohibit sexual harassment of a worker, prospective worker, or person conducting a business or undertaking.  This decision is one of the first applications of the section, and the first made against contractors and customers external to the employer in connection with work (the first being that of Mejia v Capital City Cafe‑Bar [2026] FedCFamC2G 468 (26 March 2026)).

The decision demonstrates that the new provisions confirm that workplace harassment laws extend beyond traditional employment relationships.  There are now repercussions for all customer-facing environments, including retail, hospitality, health and service settings, where harassment may come from clients, contractors or patrons.

It is also a reminder to employers as to the essentiality of providing a safe work environment and proactively taking all reasonable steps to prevent sexual harassment in the workplace. 

Stopping at preparing a sexual harassment policy and implementing regular training is unlikely to be sufficient.  Employers should consider:

• Having their sexual harassment policies refer to the obligations of bystanders and state that disciplinary action will be taken against workers who engage in sexual harassment;
• developing a complaints handling procedure for recipients of complaints to follow in the event of sexual harassment; and
• monitoring workplace culture to ensure workers understand and comply with sexual harassment policies and training.

The post New Workplace Risk: Customers and Contractors Liable for Sexual Harassment appeared first on Dobson Mitchell Allport.

The Court ordered compensation pursuant to s 527D arising from a single incident of sexual harassment involving a kiss to the mouth, reinforcing that the Respect@Work reforms have introduced a direct, compensable statutory pathway.

The Court accepted the conduct caused real harm and awarded damages to reflect the personal impact of the harassment, not just the existence of inappropriate behaviour.  The focus was squarely on consequences, not intent or workplace informality.

Section 527D fundamentally changes the risk profile for employers.  Sexual harassment is no longer confined to discrimination jurisdictions or policy‑based responses.  It is a Fair Work Act (2009) contravention with financial consequences, capable of being enforced through federal workplace law processes.

Three Points Stand Out:

• compensation under the Fair Work Act 2009 is now a practical remedy, not a fallback option
• small and informal workplaces are squarely within scope
• failure to prevent or address sexual harassment can translate into direct monetary liability

For employers, the lesson is straightforward.  Policies alone are not protective.  Courts will assess whether preventative steps were real, active and effective and whether complaints were handled promptly and appropriately.

Sexual harassment risk now sits firmly at the intersection of employment law, compliance and financial exposure.

The post A New Compensation Pathway Under the Fair Work Act: What Employers Need to Know appeared first on Dobson Mitchell Allport.

From 1 July 2026, new anti‑money laundering laws will apply to many Australian law practices, including those that provide services such as property transactions, trusts, companies and certain financial or commercial work.

These changes form part of a nationwide effort to prevent serious financial crime, including fraud and money laundering.  While the new requirements affect how law practices operate behind the scenes, our focus remains the same: providing clear, practical and trusted legal advice.

Why are these changes happening?

Australia is updating its laws to align with international standards and to close gaps that criminals can exploit. Regulators have identified that certain professional services, including some legal services, can be misused for illegal activity if appropriate checks are not in place.

The new laws are designed to strengthen safeguards across the legal and financial system.

Will this affect all legal work?

No. The new requirements apply only to certain higher‑risk legal services, such as:

• buying or selling property
• setting up companies or trusts
• managing client funds
• some commercial and financial transactions

Many areas of legal work, including litigation and court‑based matters, are not affected.

What might clients notice?

For some matters, we may need to:

• request additional identification documents
• ask questions about the nature or purpose of a transaction
• carry out ongoing checks during longer‑running matters

These steps are now required by law and are similar to the checks clients may already be familiar with when dealing with banks or other financial institutions.

What are we doing to prepare?

Dobson Mitchell Allport is actively preparing for these changes by:

• reviewing our internal systems and processes
• training our staff on the new requirements
• ensuring compliance is handled efficiently and respectfully

Our aim is to make this transition as smooth as possible for our clients, with minimal disruption to your legal matters.

Need more information?

If you have questions about how these changes may affect your matter, we are happy to discuss them with you.  Please feel free to speak with your lawyer or contact our office.

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A number of employees brought unfair dismissal claims against Helensburgh in the Fair Work Commission, claiming that their dismissals were not cases of “genuine redundancy” arguing they could have performed work which was done by contractors. Helensburgh objected to the applications on the basis that the terminations were cases of “genuine redundancy”.

The High Court found that the Full Federal Court last year correctly determined the matter when they found that when considering a redundancy situation, the employer had an obligation to assess whether the employees could perform the roles of contractors at its mine, prior to making redundancies.

The High Court has unanimously held that the Fair Work Commission is permitted to inquire whether an employer could have made changes to how it uses its workforce when determining whether a dismissal is a “genuine redundancy”.

The difficult facts for this employer included that while it was appropriate to decrease the size of their workforce due to COVID-19 impacts at that time, the employer had ongoing work that could be performed by the former employees, rather than contractors who were supplied by two companies on a “as-needs” basis.

The case is the 5th decision relating to this matter, and while the facts are not usual, it provides an interesting insight into the test for a “genuine redundancy”.

If you require further information about potential redundancies, please do not hesitate to contact a member of our Workplace Relations team.

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Below is a review of the recent determinations by TASCAT on workers compensation matters in March and April 2025. The main takeaways are:

• TASCAT will approve an application for summons where the documents sought have apparent relevance to the issues in dispute;
• Employers are not required to provide notice to workers when terminating weekly payments under s86(1)(a) and (b).
• ‘Serious and wilful misconduct’ under s25(2)(a)(i) requires that the action: causes an immediate risk of serious injury; was deliberate and not thoughtless; and was accompanied by an appreciation of risk.
• The apparent temporal connection is a pertinent consideration for determining whether a reasonably arguable case exists where workers make a claim following an employer’s reasonable administrative action.
• TASCAT has powers to determine if separate referrals ought to be heard and determine separately, and TASCAT will exercise it where the referrals are about different issues.
• Where employers intend to rely on the exceptions to liability under s25(1A)(b) and (c), their evidence must outline that the actions were taken in a reasonable manner.

Our insurance litigation team are available and competent to advice on matters or issues alike to the recent determinations by TASCAT that are summarised in this article.

KC v Devonfield Enterprises Inc [2025] TASCAT 65 (10 April 2025)

The main issue addressed in this determination by Deputy President Grueber relates to the test for determining an application for summons. Essentially, the test is whether the documents that is the subject of the summons have apparent relevance to the issues in dispute between the parties.

Our key tip:

Ensure that the application for summons is not akin to a fishing expedition. The application need only demonstrate that the documents sought after are likely relevant to the dispute.

Metro Tasmania Pty Ltd v KX [2025] TASCAT 62 (3 April 2025)

Here, the employer sought to rely on the exception to liability under s25(2)(a)(i) regarding serious and wilful misconduct of the worker in a s81A Hearing.

Senior Member Chandler said that the test for serious and wilful misconduct is that the action (citing Hill v Brambles Holdings Ltd [1987] TASSC 31:

1. Must give rise to an immediate risk of serious injury; and
2. Is deliberate and not a thoughtless act; and
3. Must be accompanied by an appreciation of risk.

Senior Member Chandler determined that TASCAT cannot assess the worker’s state of mind and appreciation of risk at a s81A Hearing.

Our key tip:

Actions of workers that are careless leading to an injury may not necessarily amount to serious and wilful misconduct. The test requires that the worker intentionally performs an act which led to the serious injury.

The State of Tasmania (Department of Health) v KND [2025] TASCAT 58 (31 March 2025)

Here, the worker had made a workers compensation claim subsequent to attending a meeting with her supervisor. The employer argued that the meeting amounted to a reasonable administrative action which had been done in a reasonable manner.

Senior Member Chandler determined that the ‘apparent temporal connection’ between the final catch-up between the worker and her supervisor is a pertinent consideration for the s81A referral.

Our key tip:

It is important to identify the date of injury and/or initial incapacity when assessing whether there is a close temporal connection between the injury and employer’s administrative action.

NN v The State of Tasmania (Department of Health) [2025] TASCAT 57 (31 March 2025)

Here, the worker filed a s42 referral and the employer filed a s88 referral. The worker sought determinations about the date that his weekly compensation rate ought to have been calculated and the appropriate rate that it ought to be made. The employer sought determinations on the worker’s capacity for work and a reduction of the weekly payment rate.

Senior Member Jack stated that s85(1)(b) of the Tasmanian Civil and Administrative Tribunal Act 2020 empowers TASCAT to determine whether separate referrals ought to be heard and determined separately. She determined that separate referrals need not be heard together where they require a determination about different issues.

The State of Tasmania (Department of Police, Fire and Emergency Management) v DKN [2025] TASCAT 44 (6 March 2025)

The worker’s claim relates to a psychological injury arising from the employer overlooking her for a senior role. The employer argued that there were reasonable grounds to not award the promotion to the worker, and that the decision amounted to a reasonable administrative action.

Senior Member Chandler determined that the employer’s evidence was insufficient to demonstrate that there were reasonable grounds to not award the promotion and that the administrative action was taken in a reasonable manner. Accordingly, the employer’s s81A referral was dismissed.

Our key tip:

The exceptions to liability under s25(1A) require evidence to support that the employer’s actions were based on reasonable grounds / taken in a reasonable manner.

The post Workers Compensation Updates from recent TASCAT determinations appeared first on Dobson Mitchell Allport.

The change would prohibit clauses that prevent or restrict workers from moving (or attempting to move) to a competing employer, or from starting or operating a competing business within a specific geographic location and for a certain duration. These clauses are commonplace employment contracts and are often broad in scope.

The prohibition will only apply to workers earning currently less than the high-income threshold of $175,000.00 per year, which is stipulated in the Fair Work Act 2009.

Although the specifics of this proposed change are relatively scarce, it is important to note that there are notable exceptions to this prohibition.

The proposed prohibition will not allow:

• employees to ‘poach’ existing clients when moving to a competing employer or starting their own business; nor will it allow
• employees to disclose confidential information to competitors, such as client lists and commercially sensitive documents.

We recommend you review any employment agreements that have ‘non-compete’ or ‘restraint’ clauses and ensure that in the future (if the government is re-elected) they only cover the exceptions to this prohibition.  These clauses should always be specifically drafted to meet the particular circumstances of your employees.

If you need any assistance, please contact us.

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The Magistrates Court of Tasmania recently published an interesting decision which discusses the legalities of prescription cannabis for the purposes of the Road Safety (Alcohol & Drugs) Act 1970 (Tas) (the Act), and potentially in other contexts.

The defendant, Mr Marshall, faced charges of operating a motor vehicle with THC, the psychoactive component of cannabis, present in his system, contrary to s 6A of the Act.

Mr Marshall did not dispute that he had consumed THC prior to driving but asserted that it was obtained legally, pursuant to a prescription from a registered medical practitioner in Victoria, and dispensed from a pharmacy also in Victoria, carried by Australia Post to his Tasmanian address.

• During cross-examination, Mr Marshall said he was unaware that medicinal cannabis could be obtained from a Tasmanian based medical practitioner.  Further, that he had sourced his information concerning the legalities around medicinal cannabis use and driving from an internet chat forum. He said it was his belief that it was lawful to drive after using medicinally prescribed cannabis so long as he was not “under the influence”.

The primary defence advanced by Mr Marshall was that the defence provided by s 6A(2) of the Act applied to the circumstances of his case, that being, that a person does not commit a drug driving offence if the prescribed illicit drug was obtained and administered in accordance with the Poisons Act 1971 (Tas) (Poisons Act).

• Magistrate Fairley did not agree, and determined that in order for THC, or another prescribed illicit drug, to have been “obtained and administered in accordance with the Poisons Act”, prescription for that drug must have been obtained from a medical practitioner in Tasmania. 
• His Honour arrived at that conclusion following a review of the Act, and the Poisons Act, of which he said, “The effect of those provisions is that a medical practitioner may prescribe cannabis for use by a patient only if that practitioner is present in Tasmania and acting in the course of medical practice in Tasmania and has made the appropriate application to the Secretary in accordance with the legislation”.
• It was therefore not obtained and administered in accordance with the Poisons Act 1971 and the defence provided by s 6A(2) of the Act did not apply.  Further, his Honour rejected that the defence of honest and reasonable mistake of fact was available to Mr Marshall given his knowledge of medical cannabis prescriptions and use had been obtained from internet chat forum, rather than from a legal practitioner or other proper authority

This case underscores the complexities associated with prescription regulation in Tasmania, and the highlights the importance for individuals looking to obtain such a prescription to do so from a local medical practitioner.

It also provides useful guidance in other contexts, such as for employers seeking to enforce or introduce a “zero tolerance” Alcohol & Drugs policy or employment condition, without inadvertently discriminating against employees who have lawfully obtained a medical prescription.

The post Smith v Marshall [2024] TASMC 12 appeared first on Dobson Mitchell Allport.

The decision concerned an application by an employer under s 88 of the Tasmanian workers compensation legislation for weekly payments of workers compensation to be suspended for the duration of the worker’s entitlement to Commonwealth parental leave payments. The employer’s argument was that, had the work-related injury not occurred, the worker would have foregone her usual wages and relied upon parental leave payments while on parental leave.

The Tribunal dismissed the employer’s referral. In doing so Deputy President Grueber determined that parental leave payments are not ‘earnings’ for the purposes of the workers compensation legislation but are instead a benefit that, pursuant to s 98 of the Commonwealth legislation, should not be taken into account for the purposes of state workers compensation legislation. The Tribunal also accepted that pregnancy and childbirth are a supervening event that is irrelevant to a worker’s entitlement to workers compensation.

The decision confirms that workers compensation payments must continue in accordance with a worker’s medical certification if a worker takes parental leave and receives Commonwealth parental leave payments. We recommend obtaining legal advice if you are uncertain about entitlements to weekly workers compensation payments.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

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