Sports Plus Mode and Exhaust Noise – Risking a Fine?

Posted by Justin Wong on 13 March 2019

Many high performance cars now have as standard various pre-programmed driving modes that improve performance and acceleration, but also significantly modify the noise of a car.

Audi, Ford, BMW, Porsche and Mercedes AMG all have options allowing a driver to quickly turn the car into Sports or Sports + modes. The result is more aggressive acceleration and gear changes, but also much louder and harsher exhaust sounds.

Even Ford offers enhanced driving modes

What many drivers do not know is that harsh acceleration noise can result in a fine.

Road Rule 291 makes it an offence to start or drive a vehicle in a way that makes unnecessary smoke or noise. The maximum penalty is a fine of $2,200.

There is no definition of what is “unnecessary”, and it will depend on the circumstances.

However, given many of these cars already have turbo V6 or V8 engines as standard, it’s difficult to think of a scenario where it is “necessary” for a driver to be in sports or sports + mode and accelerate in a way that results in loud exhaust noise.

Much will depend on police discretion, but as more cars are configured to automatically enhance engine and exhaust noise, it may be this offence is more commonly charged.

Police strip searches: What are your rights?

Posted by janelle.tarabay on

This week, the NSW Police have come under fire after a 19-year-old woman alleged that she was strip-searched at Hidden Festival in Sydney, without adequate privacy and in view of male police officers.

Streeton Lawyers has dealt with a number of cases involving police conducting strip searches on festival-goers without adequate privacy or attempts to preserve dignity. Recently, in one of Maxine Malaney’s cases, police even filmed the strip search her client. We believe this is a now police practice, which is concerning.

In light of the increased use of police powers, it is important to know what your rights whether at a festival or another venue.

What can police legally do?

Police have the power to stop and search you if they suspect on reasonable grounds that you are in possession of illegal drugs. If a dog sits down next to you, police can use that indication to decide whether there are reasonable grounds to search you.

When in a public place, police can strip search you if they suspect on reasonable grounds that the strip search is necessary for the purposes of the search and because of the seriousness and urgency of the circumstances.

The does require the police to preserve your privacy and dignity as much as they can during the search. This means:

  1. The police officer needs to ask for your cooperation and explain whether you will have to take off your clothes and why.
  • The search needs to be conducted in a private area, by a person of the same sex as you. It must not be conducted in view of someone of the opposite sex or anyone else whose presence is not necessary to conduct the search.
  • The search must be conducted as quickly as possible and in the least invasive way. Police cannot touch you during the search and cannot search your intimate areas or body cavities.

If you find yourself in a situation where police want to search you, it is okay to politely insist upon your right to dignity and privacy. However, it is always a good idea to be cooperative and respectful, as the court may later take this into account if you are charged.

If you have been charged, or found yourself in a similar situation, we can help. Contact us on 9025 9888 or leave an enquiry on our website to speak with one of our criminal law specialists.

If you are looking for more information on police sniffer dogs, see Sniffer Dogs and Police Powers.

#BalanceforBetter this International Women’s Day

Posted by janelle.tarabay on 08 March 2019

“Balance for Better” is this year’s International Women’s Day slogan as a balanced world is a better world.

Today in celebration of International Women’s Day, our Associate, Mikaela Eldridge, attended the Law Society of NSW’s breakfast and heard Dr Kirstin Ferguson speak about the power of women supporting women. Dr Kirstin Ferguson initiated the #celebratingwomen social media campaign in 2017 where she profiled two women from anywhere in the world in every walk of life, every day for a year. Her campaign was a reminder to that all women are to be celebrated and are mentors for others.

Today is the 108th International Women’s Day. The first instance of a Woman’s Day was in 1909 in New York City, 15,000 women marched demanding better pay and voting rights. The first official International Women’s Day was on 19 March 1911 and over a million people participated in demonstrations advocating for the right to vote, hold public office and against employment sex discrimination.   

Streeton Lawyers is made up of strong and intelligent women. We would not be the firm we are without them. It is fact that women empower the economy (International Monetary Fund (2018). Pursuing Women’s Economic Empowerment) and women in leadership positions increase organisational effectiveness and growth of companies. (McKinsey & Company, Women Matter: Time to accelerate. Ten years of insights into gender diversity 2018.)

Gender Equality is not solely a women’s issue, it is about achieving balance and diversity in the work place and in society. The legal profession is a place that unfortunately is still working towards achieving gender balance. We are grateful that there are inspiring male and female mentors and advocates pushing for balance for all. Streeton Lawyers is committed to the advancement of women in the legal profession.

We are very grateful to be a company who’s core is female. We thrive off celebrating all our employees’ successes every day. We hope you do the same.

ACCC Announce More Criminal Cartel Prosecutions

Posted by Justin Wong on 01 March 2019

In his annual address to the Committee for Economic Development Australia this week, the ACCC Chair Rod Sims laid out its 2019 priorities. First among these was its “competition enforcement approach and objectives”.

The ACCC will aim to have two to three criminal cartel investigations come to conclusion and prosecutions commence each year. This is a significant announcement, and suggests that the ACCC not only views criminal prosecutions as a central enforcement and compliance method, but also that cartel arrangements among some of Australia’s largest corporate entities as various and widespread.

Mr Sims noted their focus will be on the new misuse of market power and concerted practices provisions.

Cartel Conduct

Cartel arrangements are regulated under the Competition and Consumer Act 2010 (Cth). Central to the provisions is the concept of  “cartel provisions” under Section 45AD.

In short, a contract, arrangement or understanding between parties is a cartel provision if it:

1) fixes, controls or maintains a price, discount, allowance, rebate or credit; or

2) prevents, restricts or limits production or allocation of goods, the capacity to supply or the supply of goods; or

3) limits or artificially restricts the bidding process in relation to the supply or acquisition of goods or services.

Cartel Offences

Cartel offences are divided into criminal and civil provisions.

Criminal Provisions

Sections 45AF and 45AG make it an offence if a corporation makes a contract or arrangement containing a cartel provision, or gives effect to the cartel provision.

This is a criminal provision and what must be proven is that the corporation knew or believed that the contract, arrangement or understanding contained a cartel provision. Negligence, or what a corporation “would have known” is not enough. As this a criminal offence this must proven beyond a reasonable doubt.

The maximum penalties are substantial. They range from a fine of up to $10,000,000, or if the court can determine the total value benefit of the cartel arrangement, 3 times that total value. Further, it can also impose a fine of 10% of the corporations annual turnover.

Civil Provisions

The provisions in sections 45AJ and 45AK regulate the same conduct as the criminal provisions, but only have to be proven on the balance of probabilities.

Prosecution of Corporations

As offences relating to Cartel Provisions are federal offences involving corporate criminal responsibility, provisions of the Commonwealth Criminal Code 1995 can also apply. Specifically, Division 12 of Part 2.5.

Importantly, because the offences require knowledge or belief, section 12.3 of the Criminal Code provides that the knowledge or belief must be attributed to the corporation that authorised or permitted the commission of the offence.

Authorisation or permitting can be established by proving:

1) The board of directors carried out the conduct or authorised it; or

2) A high managerial agent engaged in the conduct or authorised it; or

3) A corporate culture existed within the corporation that directed, encouraged, tolerated or led to the non-compliance; or

4) The corporation failed to create and maintain a corporate culture that required compliance with the relevant provision.

Authorisation can be by express, tacit or implied.

When does prosecution happen? – “Serious Cartel Conduct”

The ACCC is responsible for investigating and obtaining evidence of cartel conduct. The Commonwealth Director of Public Prosecutions (CDPP) is responsible for prosecuting serious cartel criminal offences.

Both entities entered into a Memorandum of Understanding (MOU) regarding Serious Cartel Conduct on 15 August 2014.

Under the MOU, the ACCC refers serious cartel conduct to the CDPP to consider prosecution action. The ACCC will consider conduct to be “serious cartel conduct” if it believes certain factors to be present. These include:

1) the conduct was covert;

2) the conduct caused, or could have caused, large scale or serious economic harm;

3) senior representatives of the corporations were involved in authorising or participating in the conduct.

Immunity – “First in the Door”

In certain circumstances, corporations can be granted an immunity from prosecution if they agree to cooperate with the ACCC and CDPP in an investigation or prosecution against a criminal cartel.

Whether an immunity is granted will depend on whether another corporation has already applied for an immunity. This is known as the “first in the door” approach.

A decision to grant an immunity against criminal prosecution is made by the CDPP, normally after a recommendation is made by the ACCC. The factors it considers are set out in the Prosecution Policy of the Commonwealth. These include:

1) The corporation or individual must have been a party to the cartel, and must admit that their conduct may have been illegal;

2) They must be the first party to apply for immunity;

3) There must be no coercion and they must have ceased involvement in the cartel.

These are significant mandatory considerations, and the requirement that they must be the first party to apply for immunity means that corporations or individuals must act quickly and obtain appropriate advice if they are to apply for immunity.

Where next? 

How the ACCC apply its resources to the 2019 priorities remains to be seen. Whether current and new investigations evolve into criminal prosecutions will depend on the strength of the evidence against any alleged cartels, and whether the conduct is considered “serious cartel conduct”. Mandating a certain number of prosecutions per year, regardless of the type or nature of the evidence or conduct, would seem ill considered.

One thing is certain and the ANZ, Citigroup and Deutsche Bank prosecutions have highlighted, is that even if these prosecutions commence, getting resolution quickly is another matter.

Justin Wong