lm

About lm

Posts by :

02 09 2024

What a State!

lm Uncategorised 0

What a State!

9/2/2024

At first blush, I, too, was shocked to hear Israel’s Prime Minister Benjamin Netanyahu last week rejecting a “Two State Solution” for the seemingly intractable Israel-Palestine problem, where two indigenous peoples, the local Arabs and the Jews, have been fighting over the dissolution of Britain’s Mandate in Palestine since 1948.

The United Nations voted in that year to approve a Partition Plan which provided for a Two State Solution – with Jerusalem to be an international city. Israel accepted it and declared the State of Israel over their allotted portion on 14th May 1948. The neighboring Arab Kingdoms, along with some Palestinians under the leadership of the Grand Mufti of Jerusalem (a Nazi collaborator and Hitler’s friend), tried to strangle the Jewish State at birth – as soon as it was proclaimed.

That was the reason for the failure of the first United Nations-sponsored Two State Solution.
There are plenty of States which reject Two State Solutions: Start with Russian’s rejection of Ukraine’s independence after more than 30 years.

Spain will not entertain a three-state solution with insurrectionist Basques or Catalonians. Neither will Canada accept an independent Quebec.

China did not favour a Two State Solution for Tibet and refuses to countenance Taiwanese independence. While Jordan controlled the West Bank of the Jordan and East Jerusalem, and Egypt controlled the Gaza Strip from 1948 (until they lost those territories in a war with Israel in 1967), neither had sought to establish a Palestinian State in Gaza, the West Bank or East Jerusalem.

Has Turkey recognized the independence of Kurdistan (for the Kurds), or India, of Khalistan, as a homeland for the Sikhs? And let us not forget England’s dominion over Scotland and the UK Government’s reluctance to hold another independence referendum, particularly since Scotland voted “No” to Brexit when England voted “Yes”. The ultimate rejection of a Two State Solution was the American Civil War (1861-1865).

While I am not a supporter of hyper-nationalism in any form, Israel’s conduct seems to gain a lot more attention and condemnation than the oppressive conduct of other states towards ethnic groups with suppressed aspirations for statehood. And there are fewer Palestinians than Sikhs, fewer Palestinians than Kurds, fewer Palestinians than Catalans.
I am not about to argue for Israel’s continuing dominion over the Palestinians living on the West Bank of the Jordan or in Gaza. I believe that all permanent residents of East Jerusalem should, without exception, have the same rights as Jewish citizens of East Jerusalem.

Israel’s security fears over a Two State Solution may be somewhat misplaced. Israel seems to have found it easier to defeat Arab states than terrorist guerrillas. That has been the experience of most states fighting guerrilla armies.

However unless there is a trade off in putting an end to Iran’s continuing sponsorship of international terrorism, Israel would again be faced with an enemy State right on its borders, as well as with the three “Hs”- Hamas, the Houthis and Hezbollah.

No Palestinian state should be permitted to become a military base for Iranian iniquities.
The other alternative: Israel-Palestine as a federation with Jerusalem as its capital. Both can live and work in each other’s State but they can only vote and own property in their own State. The State of Israel would be the pre-1967 borders, plus East Jerusalem and Golan, and the State of Palestine would be the West Bank, Gaza and East Jerusalem (ie joint administration). It seems an impossible dream but then by and large, the Palestinian Arabs who stayed in Israel from 1948 and became citizens of the State of Israel and Israeli Jews struck a positive modus vivendi. In Israel there are Arab political parties, Arabs are elected to Parliament (the Knesset), and Arabs have been in coalition to govern the State of Israel, as recently as within the last 5 years.

Israel cannot continue to rule over the Palestinian territories of Gaza and the West Bank; neither can it integrate them into Israel without jeopardising the notion of a “Jewish State” unless it were to practise a form of apartheid which, up till now – don’t believe the liars who say otherwise – it has not done, but which anything short of a Two State Solution or a democratic federation, would likely produce.

Since 7 October 2023, there are unprecedented levels of fear and hatred driving the Middle East narrative – and understandably so. Both sides have plenty of reason to fear and hate each other. Before there can be any kind of Palestinian Statehood there needs to be transitional arrangements; a joint mandate given by the UN to the UAE, Egypt, Israel and the Palestinian Authority to administer the West Bank and Gaza during a 5 year transitional phase.

The media’s treatment of proportionality between combatants in the Israel-Hamas war is bordering on the absurd. If South Africa was Hamas’ legal arm, the ABC has become its propaganda mouthpiece.

Only 2,403 Americans were killed at Pearl Harbour by the Japanese attack on 7 December 1941, but the US killed 229,000 in Hiroshima and Nagasaki, including an untold number of civilians, babies and their mothers, over 2 days in August 1945. Imagine how the world would remember those 2 days if the Japanese had dropped those bombs on San Francisco and Los Angeles instead.

When Jews say the media reaction to this war involves far more than a mere tinge of antisemitism, it is because in the media, and particularly on the ABC, it is not what you do but by whom it is done, which dominates the message. Why did the “Me Too” movement appear not to care much about the rape and torture of Israeli women and girls by Hamas? Because what is sauce for the goose is not sauce for the gander! Imagine if that happened in reverse, and Jews had tortured and raped Palestinian women and children.

We must look for more than just answers but solutions and I, as a citizen of the world, a liberal and a Jew, cannot abide or endorse man’s inhumanity to man. I recognize that there are times when we must fight, noting the adage that “The only thing necessary for the triumph of evil is for men of goodwill to do nothing”.

Should the British be embarrassed that in World War II, 384,000 British soldiers were killed in combat and 70,000 civilians perished (a total of 454,000) compared with Germany’s total civilian and military deaths ranking at between 6,600,000 and 8,800,000 – a near twenty-fold disparity? Should the Americans hang down their heads in shame that while there were between 2,600,000 and 3,100,000 civilian and military deaths among the Japanese, there were only 420,000 American military and civilian deaths? Applying the logic of the ABC’s Global Affairs Editor, John Lyons, one side can do no right and the other, no wrong.

Just as in the Middle East today, so, too, in World War II, the fight is for the future, the fight is for a world order, in which civilisation prevails over barbarism and that may involve “whatever it takes”.

Stewart A Levitt

10 12 2022

Lawyers to file Federal Court bid to halt transfer of children from Banksia Hill to Casuarina Prison

lm Uncategorised 0

Lawyer Stewart Levitt is filing an injunction to stop the transfer of children to Casuarina Prison. (ABC News: Rebecca Trigger)

Lawyers to file Federal Court bid to halt transfer of children from Banksia Hill to Casuarina Prison

Originally published on abc.net.au written by Rebecca Trigger and Cason Ho

The WA Department of Justice says some teenagers may be transferred to an adult maximum security prison based on their actions prior to incarceration, as lawyers say they’re filing an urgent application to the Federal Court to stop their relocation.

Stewart Levitt, from Levitt Robinson Solicitors, is representing families planning a class action over the treatment of children in WA’s only youth detention facility, Banksia Hill.

In July, the Department of Justice set up a special unit at a maximum security adult prison, Casuarina, to take children from Banksia who were deemed disruptive.

Mr Levitt said the transfers were resulting in the violation of the rights of the children.

He filed a complaint to the Australian Human Rights Commission last week.

A separate unit has been set up for youth detainees within Casuarina Prison. (ABC News)

The Federal Court injunction will seek to protect the rights of children to remain in the purpose-built Banksia Hill during the Commission’s conciliation process.

The state government has defended its decision in the past as necessary to address extreme behavioural issues at Banksia Hill.

However, some teenagers may have been sent to Casuarina as a result of actions outside of Banksia Hill, according to Department of Justice Director-General Adam Tomison.

“If a young person has been involved in an incident which has led them to come into Banksia that’s quite significant, that young person – and I’m talking about quite dangerous – that young person may potentially have gone to Unit 18 on that basis.”

Mr Tomison defended past occurrences as “reasonable” when he addressed the Disability Royal Commission, which was hearing about conditions in WA’s justice system for people with disability.

“It wasn’t my decision but I’m certainly happy to back the department and Banksia Hill on making it … I think it was quite a serious incident and that was taken into account.”

The Commission’s senior counsel assisting Patrick Griffin also questioned Mr Tomison abut the welfare and treatment of detainees at Banksia Hill.

“Do you accept that detainees in Banksia were being subjected to cruel, inhuman or degrading treatment?” Mr Griffin asked.

“It’s not language I would use, but I will accept it,” Mr Tomison said.

‘Cruel and unusual’ policies targeted

The legal team is also expecting to file a class action in the Federal Court on behalf of children in WA’s youth justice system in a matter of weeks, seeking compensation for what they call the “cruel and unusual” policies of the WA government against youth offenders.

“These cruel policies which seemed only aimed at systemically eliminating children who come from deprived and dysfunctional homes forever,” he said.

“These children have no future because they’re deprived of education … They had no proper preparation for life.

“They have been stunted and cruelly treated and alienated in custody … without ever having an opportunity to build positive lives and to participate fully in Australian society.”

WA Corrections Minister Bill Johnston earlier this week announced a review of the state’s juvenile justice system by reviewing the Youth Offenders Act.

It will focus on whether it is effectively rehabilitating and diverting juvenile offenders while also protecting the community.

Mr Johnston said while diversion from the criminal justice system continued to be a priority, community protection remained a paramount consideration.

Banksia has half the staff it needs

On the final day of a five-day hearing into the detention of people with disability, it was revealed that Banksia Hill only has half the number of youth custodial officers it requires.

Banksia Hill is Western Australia’s only youth detention centre. (ABC News: Gavin Johns)

The Disability Royal Commission heard a number of detainees’ families and government witnesses made statements that staff shortages were a significant contributor to issues at the facility.

Banksia Hill Superintendent Wade Reid conceded it was “challenging” to operate at half of ideal staffing levels.

Mr Reid said there were currently 10 youth detainees at Casuarina — some were part of the initial transfer of 17 teenagers to the maximum security prison, while the remaining seven had either been moved back to Banksia Hill or released.

The commission also heard the facility had no First Nations staff in senior management, despite almost 80 per cent of detainees being Indigenous.

Mr Reid said while there were dedicated First Nations roles including Aboriginal youth support officers, more needed to be done to increase representation among senior staff.

Concerns over mental health, disability screening

Department of Justice records show that, as of August 30, there were 33 teenagers across Banksia Hill and Casuarina with intellectual or cognitive disabilities — making up about a third of youth detainees.

Mr Reid said he was not advised whether any of the teenagers that were relocated to the adult maximum security prison in July had mental health issues requiring intervention.

“I would be advised if someone had mental health issues where it made them unsuitable to be transferred to [Casuarina],” he said.

The dining room at Casuarina Prison where the Banksia Hill detainees are served their meals. (Supplied)

Past reports from the Inspector of Custodial Services have highlighted that screening processes were inadequate at identifying intellectual disability and cognitive impairments in young people in custody.

“It appears from the evidence the Royal Commission heard that this issue was not promptly addressed,” senior counsel assisting Patrick Griffin said.

Commissioner of Corrective Services Mike Reynolds said a new screening tool, which had been used over the past year, was “covering most of those issues”.

However, the Royal Commission has heard that only 28 per cent of WA’s adult prisoners have been screened, and screening levels at Banksia Hill are “much lower”.

08 09 2022

Franchising and the ATO: Finding the fall guy

lm Uncategorised 0

Franchising and the ATO: Finding the fall guy

By the Australian Business Executive

The Australian Government should have a full understanding of the workings of the Australian Franchising industry which has an annual turnover of $172 billion dollars, generated through 94,524 outlets, employing 565,251 people. Australia’s franchising industry is second only in size to the United States’, in terms of the number of small businesses which operate under a franchised model and referable to gross turnover. 75% of franchises are concerned with the delivery or distribution of food – usually fast food.

In modelling the pandemic Jobkeeper Relief Package, former Treasurer, Josh Frydenberg, ought to have been focused not only on saving jobs but also, on the potential to recoup the Government’s largesse, through maintaining business revenue, so that the money doled out might flow back to the Federal Government’s coffers down the line.

Lockdown loot

Many Franchisors and Master Franchisees (de facto Franchisors who acquire the exclusive right to operate as the Franchisor in Australia from an overseas operator) – “Franchisors” – have skimmed the profits from increased revenue generated from take-out food sales during the pandemic lockdowns, leaving just crumbs, if even crumbs, for their Franchisees and Sub-Franchisees (“Franchisees”).

Typically, fast food Franchisors offered generous incentives to Franchisees’ customers, in the form of vouchers, discounts and rebates, while also cutting prices, so that their particular franchised business could gain a competitive edge against rivals. Almost all food was ordered online and then delivered but with the opportunity for drive-by pickup.

If ordered online, Franchisees were commonly charged an ordering fee by the Franchisor; all of the price reductions and delivery charges as well as discounts and vouchers, were charged as overheads which had to be borne by Franchisees. Franchisees were forced to increase staffing levels, pay workers’ penalty rates, as applicable and meet all of the other on-costs of increased turnover. While sales increased, the bottom line did not and for many franchisees – indeed, for the great majority – net profit actually declined for Franchisees, even as their turnover increased.

Fair Work reforms following the 7-Eleven exposé of underpayment of wages in franchising which my firm joined in bringing to air, only went so far as to make Franchisors co-liable when they do not take steps to ensure that Franchisees’ employees are paid all of their entitlements under applicable Industry Awards. Franchisors make sure, after they have taken their own enormous cut, which includes big mark-ups on the price of wholesale supplies, which their Franchisees have no alternative but to buy from them, as well as rent, royalties, marketing fees and other charges – from what little is then leftover to the Franchisee, that the Franchisees’ employees rank after the Franchisor but before the Franchisees for payment.

Franchisees, who have usually invested heavily to buy their franchised business – somewhere between $300,000.00 and $1,200,000.00 – using their own, family and borrowed money, mostly supplied by the ANZ or sometimes another Bank – and guaranteed by the Franchisor – are too often, financially squeezed to the point of having nothing or almost nothing left with which to make their loan repayments, feed their families or draw a living wage, for working 50 to 60 hours per week. They are forced to work themselves, not just in a management role but on the “pizza production” line or breaking their backs for burgers. The Franchisor has to guarantee the Bank’s loan because the Franchisees are mostly newbies to Australia, with no local collateral or trading history, and would not be granted finance to buy any other business, where there was not a local “backer”, like a Franchisor.

Franchisors control the revenue

Wives and children are brought into the process, too, to knead the dough and try to make sure that it stretches far enough. They provide their own cheap labour to the franchised business. The larger food Franchisors, in particular, gain control of most of the Franchisees’ revenue which they only partly pass on to the Franchisee, after they have taken the lion’s share for themselves, and deducted the cost of ingredients, rent, labour expenses and on-costs.

Apart from the Franchisee, the big loser is invariably the ATO, because there is not enough money left over for a Franchisee to afford to pay the recurrent liability, which the Franchisee is required to report to the ATO, by way of lodging a Business Activity Statement (BAS) and to pay PAYG tax and GST each quarter.

I have met with food Franchisees across Australia, engaged in selling lines as diverse as pizza, poultry and burgers – and as a result of unconscionable franchising systems, they have not been able to lodge and pay BAS statements for GST and PAYG tax,for at least two (2) quarters and in the worst cases, for as many as sixteen (16) quarters.

In an industry of this size, this has gobsmacking consequences for the public purse. It is not the fault of the Franchisees. So many Franchisees have been made inappropriate and unconscionable loans. Banks typically finance Franchisees, who are often neophytes to Australian business and finance, buying into a franchised business relying on the strength of a Franchisor’s guarantee to the Bank and representations about how prospective Franchisees will profit from buying the franchised business.

Franchisees are mostly immigrants from Asia and South-Asia, and have academic or IT backgrounds, with little or no Australian business experience or local knowledge. They are usually relatively young (under forty (40) years of age) and contribute some family overseas money to the purchase – after all no one came here as a foreign student without family money to back them up – but have no Australian assets or at least, if they have a domestic residence, it is already mortgaged by the time that they buy their franchised business. Banks clearly do not follow the “Know your Customer – Know your Client” (KYC) guidelines. The Franchisees know next to nothing about our labour and taxation laws.

Usually the only security taken by the Bank from the Franchisee is a personal Guarantee by a director – which can ultimately extend to forcing the sale of the director’s principal residence – and the principal security taken is a Personal Property Interest charge over the franchised business. This means that after years of grinding work to repay the finance borrowed from the Bank, the Franchisee may end up with nothing or next to nothing left over, after the Franchisor has cleaned up. When the Franchisee is faced with nugatory, if any, net profit, and the ATO finally gets round to serving a Directors Penalty Notice for unpaid B.A.S (GST and PAYG tax), a Franchisees’ company may be forced into administration, so that the Franchisee’s directors may avoid personal liability to the ATO. Frequently the Franchisee’s directors have nothing left to lose anyway.

Appointing an administrator to the franchisee company automatically results in forfeiture of the franchised business to the Franchisor, leaving the Franchisee exposed to the Bank. The Bank recovers first against the value of the franchised business, with the Franchisor standing next in line to pick up what is left, controlling the distribution of the residue. Faced with an administration or winding-up order against the Franchisee company, the Franchisor steps in to make sure that it gets paid ahead of the rest, effectively frustrating the priorities prescribed under section 556 of the Corporations Act, 2001, applicable on the winding-up of a company, as applied to the remaining assets from the insolvent franchised business.

Throughout the franchised fast food industry, because of the Franchisors’ systems, the Franchisee will be trading insolvent or on the verge of insolvency, for months if not years, before the ATO makes a move. Many of the Franchisors operating in Australia in the fast food franchise industry are multi-national corporations who engage in profit-shifting and transfer pricing.

They have structures in place which make it easier for them to ensure that they are not fully taxed in Australia. Since 2017, Dominos Pizza Enterprises Limited, the Australian Master Franchisee which operates Dominos Pizza out of New Zealand, Belgium, France, the Netherlands, Japan, Germany, Luxembourg, Denmark and Taiwan and has over 28,000 stores, have also been delivering pizza to the accountants and tax attorneys who support Luxembourg’s role as a tax haven for large corporations around the world.

7-Eleven, McDonalds and Craveable Brands (Oporto, Red Rooster) are all ultimately controlled from outside Australia.

Luxembourg attracts as much foreign direct investment as the United States. A favourable tax regime encourages corporations to establish special purpose entities in Luxembourg to take the benefit of the lack of withholding taxes on interest and royalty payments which may allow these payments to escape taxation in the jurisdiction where these receipts were generated. They eat pizza in tax havens, too, and there may be nothing sinister in the fact that 80% of profits shifted from EU countries wind up in tax havens located in the EU, namely Luxembourg, Ireland and the Netherlands, (the Dominos Australian Master Franchisee sells take-out pizza in the Netherlands, too).

Whilst Luxembourg may be the big winner in terms of revenue, Australia is a big loser when it comes to tax collection and this appears to be pursuant to a system or strategy operated by franchisors around the country, which starve their franchisees of the ability to be able to feed their families, meet their essential, subsistence commitments and to discharge their BAS liabilities, once the Franchisor has peeled off its major share of the spoils.

The Albanese Government has been cracking down on tax defaulters but in picking off Franchisees with Directors Penalty Notices, it is actually attacking the victims of scams and ensuring that its recoupments from small business franchisees will be minimal, while remaining as blind as the Morrison Government before it, to the real mischief: the strategy devised by Franchisors to ensure that they are paid ahead of the ATO and that ultimately, it is only Franchisees and the Australian public who are left bereft, when there is no dough or any feathers left over, from the pizza-makers and chook-pluckers.

In 2019, the then Minister for Small Business, Michaelia Cash, hosted representatives from Franchising Industry interest groups in Canberra, at a series of consultations (I was one of the delegates for Franchisees), to discuss reform of the Franchising Code and the deficiencies and inequities which the franchising regime in Australia has produced.

This resulted in a new Franchising Code in 2021, which addressed many of the disclosure issues. However, the formula for franchisee oppression is contained in the “Manual” which Franchisors are still not bound to disclose and do not do so, in advance of signing-up Franchisee lemmings. Disclosure Documents and Franchise Agreements only supply basic information, while Franchisors tend to deploy and implement their oppressive rules and demands aimed at all Franchisees, in a document called a “Manual”, which includes stipulations as to what supplies Franchisees must buy, from whom and how often, and at what inflated prices – mostly above wholesale market.

Additionally, while the new Code has expanded the number of Franchisor offences and increased penalties, there is rarely effective enforcement.

A complaint made by my clients about a Melbourne-based Franchisor, in respect of flagrant actions by the Franchisor which achieved prominent national media coverage – is still under investigation two (2) years later and nothing has yet happened to the Franchisor as a consequence. The matters, disclosed to the ACCC involved serious legal contraventions in Sydney, Melbourne and Brisbane but ASIC is conducting its investigation from Perth!

The plight of Franchisees and Sub-Franchisees, as little more than indentured workers who pay a fortune for the honour of repaying the Bank and providing almost all the meat on the bones of the franchised business to the Franchisor, over five (5) to ten (10) years of hard labour, goes largely unaddressed in Australia.

Many of the Franchisees will earn less money than their workers, even if the workers have been underpaid, because Franchisees are running at a loss and building up debt to the ATO, while Franchisors rake off most of their income at source.

Reform is possible. The new Labor Government, through Treasury and the Deputy Commissioner of Taxation, should stop targeting Franchisees. Legislation must be promptly introduced which makes it unlawful under a Franchise Agreement for a Franchisor to pay itself from revenue generated from the Franchised business, ahead of the payment of wages and salaries (including an indexed management salary to the business proprietor, provided that he is hands-on, of $80,000.00 plus superannuation), and the remittance of all GST and PAYG tax due to the Commonwealth. It is to be observed that the Franchisor invariably has set up systems where all revenue generated from franchised business is received by the Franchisor to distribute only after taking its own big cut, while the Franchisee is left to cover all business expenses including tax, with too little to go around.

In other words, the Franchisor who characteristically strips out its share ahead of the Franchisee, the workers and the ATO, should have its portion of the take postponed to fourth place in the pecking order.

The Australian Tax Office crafted a $1 billion dollar tax settlement in July, 2022 with Rio Tinto in relation to transfer pricing, having resolved a similar dispute with BHP in 2018. It is one thing for the Federal Government to come to terms with the mining industry and its modus operandi and quite another, to recognize what is happening under its very nose, with massive small business defaults, as a result of what is, in practice, a pan-Industry scheme, to exploit Franchisees and deprive the ATO of the revenue which it ought to receive ahead of Franchisors. The Australian Treasury should cease being the victim of a multi-national – and domestic – tax avoidance “franchise”.

Stewart A Levitt is Senior Partner with Levitt Robinson Solicitors, specialising in corporate law, banking & finance, and class action law, www.levittrobinson.com.

04 07 2022

Do we need DFAT (Commonwealth Department of Foreign Affairs & Trade)?

lm Uncategorised 0

MEDIA RELEASE

6 April 2022

Do we need DFAT (Commonwealth Department of Foreign Affairs & Trade)?

Stewart A Levitt

Do we need DFAT?

Under the Morrison Government, would we be better off if we had no foreign policy at all and just shut up? Think of it. No one, except perhaps the Russians and the Burmese, approves of China’s repression and persecution of the Uygur, an ethnic Muslim minority resident in The Xinjiang, Uygur:(nominally) Autonomous Region, of Northwest China.

Among the G20 Nations, Australia is the only country being sanctioned by China. Other nations have expressed their disapprobation of Chinese human rights abuses, but I repeat, only Australia is suffering economic sanctions from China.

Is Australia the greatest champion of human rights in the G20? Certainly not where refugees seek to access Australia’s shores by boat! The Morrison Government has been mean with foreign aid, and with offers of safe haven to refugees from countries, unless the people fleeing are white Caucasian or predominantly Christian. Was it we who refused to trade with China over the Uygurs’ mistreatment? Certainly not. Were we prepared to take a stand on trade with China over China’s claiming disputed islands in the South China Sea from the Philippines? No!

Indeed, we have not sanctioned China! China is boycotting us! China is slapping high tariffs on our goods. We would gladly increase our trade with China, whatever the human rights infractions or repugnant deeds of which China stands accused by the Morrison Government, rightly or wrongly.

Scott Morrison has been Trump’s fall guy. Trump told China it had to buy more US goods. Xi Jinping replied: “Sure”. Trump incited Morrison to shoot off his mouth and ScoMo duly obliged. Morrison had been seduced in Washington by the nineteen (19) gun salutes and the black-tie dinner which had greeted him on his visits to the Trump White House.

Xi Jinping responded by transferring orders for goods which had been sourced from Australia to the US, Canada, New Zealand and to the European Union!

The Arden Labor Government in New Zealand, which has a far better Human Rights record than we do, is forecast to reach $50 billion in primary industry exports to China this year and from this month, will be implementing its upgraded Free Trade deal with China.

ScoMo – Sucked-in!

All this is a far cry from the Abbott Government’s performance, when Andrew Robb, the distinguished and capable former Minister for Overseas Trade at the time, negotiated free trade deals with South Korea and Japan and continued to promote increased trade with the People’s Republic of China.

Xi Jinping was in power when Andrew Robb was the Minister, too.

The only thing that has changed since Andrew Robb was the Minister for Overseas Trade, is that there are more snake oil salesmen and buffoons at the top.

I was no fan of the Abbott Government but one thing is clear, Julie Bishop is sorely missed and the song that best befits the way in which Australia has conducted its foreign policy since Scott Morrison took the helm is “Only the lonely”. In the lyrics of the Roy Orbison song, “Only the lonely know the way I feel tonight”: Australia’s Foreign Policy under the Morrison Government in a nutshell.

Defence

Let’s not forget that the big ($90b) order of French diesel submarines was placed by the Turnbull Government trying to hang on to LNP seats in South Australia – and members of the current federal cabinet supported it.

The French were and are still supposed to be our allies, with extensive interests in the Pacific, New Caledonia and French Polynesia included, not to mention France’s historical connections to Vanuatu (New Hebrides) and Indochine: France is a member of NATO.

Why has Australia had to pay France roughly $5b in “sunk costs” (the price of two (2) new major public hospitals) and in penalties, to cancel the French contract, instead of amending the contract to cover the purchase of French nuclear submarines, of which France has its own fleet? Why are we now buying them from the US and UK?

What did Australia get out of the AUKUS deal which it did not already have? We were already a member of ANZUS, we have been going “All the way with LBJ”, since before the battle at the Coral Sea. England has always been our closest ally. We went to war for Britain and many thousands of Australia’s youth gave up their lives without fully comprehending why, for King and Empire, in two World Wars.

Then there is the new “Quad” of Japan, India, the US and Australia, formed to create a solid front against China. That united front suffered a real dent when India abstained in the UN over a vote condemning Russia for its Ukraine invasion and has continued to do so. China abstained too. ScoMo is just fixated on China because he sees “the Yellow Peril” as a populist catchcry that might help him at the polls – as it helped racist demagogues at other times and places.

France’s President Macron called Scott Morrison “a liar”. Does Macron know something that Barnaby Joyce, Gladys Berejiklian or Senator Connie Fierravanti-Wells doesn’t know?

COVID 19

Scott Morrison, egged on by Donald Trump, permitted his Foreign Minister, Marise Payne, to call out China over the “China Virus” seeking an international probe. In fairness, there should be an enquiry into the ‘American’ Immune Deficiency Syndrome, Japanese Encephalitis, German Measles and Spanish Flu. Among those four (4), the Germans got off lightly!

And what about Australian Rules?

The Solomons

Then we have the South Pacific and ScoMo’s new angst over China’s assuming responsibility for security in the Solomon Islands. Well, we had our chance! Australia has treated South Pacific nations as if we are the new colonial power in Oceania, and they are a bunch of mendicants. We have been ungenerous, high-handed, and domineering.

We run a Pacific Labour Program which, instead of fostering goodwill among our Pacific neighbors and unlike Kennedy’s Peace Corps, exploits and abuses seasonal workers who come to Australia, allowing labour hire firms to rip them off while DFAT and the Australian Border Force, stand by to intimidate and muzzle them and those who would advocate for their rights.

The Pacific Labour Scheme is seen by the seasonal workers from the South Pacific as an instrument of oppression and a demonstration of bad faith. They report this to their friends and relatives back home, who see how little change from their pay packets, is left over for workers to repatriate.

On Climate Change, Morrison having yielded to blackmail from Barnaby Joyce and the Nationals, turned up mealy mouthed at the Glasgow Conference and was called out for it. Where better than in Glasgow where the national dish, ‘Haggis’, is made out of sheep’s offal?

Over the LNP’s last nine (9) years in office, we have not upgraded our defences other than with contracts for ordnance on the “never never”. If he were inclined to follow Putin, Xi Jinping could take Canberra with a pair of chopsticks!

Better then, if someone tried diplomacy rather than racist bellicosity. It would sure help our exporters.

With compliments,

Stewart A Levitt

02 07 2022

Don’t shut the door on Justice: Addressing the Government’s proposed amendments to the Corporations

lm Uncategorised 0

Don’t shut the door on Justice: Addressing the Government’s proposed amendments to the Corporations

Originally published on Australian Business Executive

Access to Justice should be optimized, not compromised.

However, that access is under serious threat from the Government’s proposed amendments to the Corporations Act, now before Parliament.

The Government has been playing against type, at least as a “Liberal” Government, in propounding extensive regulation and the fettering of the free market, particularly where there is already in place under the Federal Court Act and Rules, and also under State Legislation, an effective supervisory regime for the Courts to ensure fair and equitable Class Action outcomes.

The Government wants to constrain the Courts’ ability to reward Litigation Funders and their lawyers for achieving successful Class Action outcomes. Its premise seems to be that Litigation Funders and Class Action lawyers are pernicious pariahs and bloodsuckers, a different species from other money lenders and lawyers; conversely, Group Members in Class Actions are worthy victims who need protection from predatory Litigation Lenders and the Plaintiffs’ lawyers, who are the Litigation Lenders’ facilitators.

Risk and reward

The truth is that there are (at least) two (2) types of lenders and (at least) two (2) types of loans. There are the lenders and loans where, if things go wrong, it is only the borrower who could lose, which includes traditional lending involving banks or finance companies, advancing money secured against domestic and/or commercial assets (including businesses), when the lender is fully protected at the borrower’s expense.

Then there is the second class of lending, which is higher risk, where if things go wrong, only the lender could lose, because the borrower is fully protected at the lender’s expense. That is the position with Litigation Lending.

Conventional lending

With a home or business loan, the lender will obtain valuations for which the borrower pays, and the lender will only advance money if there is adequate security and enough of a cushion to protect the lender if things go wrong. The lender can demand mortgage insurance with the borrower paying the premium and, if the borrower falls on hard times and defaults, the lender can charge the borrower a default interest rate which may be compounded and can border on the extortionate.

Even if the borrowers just borrowed $500,000.00 against a $2,000,000.00 asset on default, even on a technical default, the lender can take possession of the asset itself or appoint a receiver to do so – especially if it is a business – and can continue to run and operate it, and charge huge expenses for doing so. It will load up the borrower with all of the expenses of the receivership and of the receiver’s lawyers; if there is a company involved, a liquidator may be appointed too – and there will then be the liquidator’s fees, the liquidator’s lawyers’ costs and default interest charged on all of these fees and expenses, until that $500,000.00 debt against a $2,000,000.00 property has become a $1,000,000.00 – $2,000,000.00 liability, still owed by the borrower, even after his security property has been sold.

These kinds of situations are not unusual. They are entirely legal. The Government does next to nothing to stop them and the banks and the insolvency profession, supported by the Courts (because that is the current state of the law) 1 , continue to countenance these sad and grossly unfair outcomes.

Ask the farmers who were victims of Landmark, and then of the ANZ Bank – or the Commonwealth Bank’s victims, after CBA took over the BankWest debtors book and you will know that I am right.

Litigation lending

Contrast this with Litigation Lending. A few aggrieved persons with sound legal claims against a well-resourced defendant approach a lawyer. They tell him that there are hundreds of other people like them but none of them has enough money to run a case because they have been financially crippled by the prospective defendant. The lawyer finds them a Litigation Funder. The Funder has its lawyers assess their claims and the prospects for recovery and weighs the risk that its funds may be tied-up for a long time; it will have to stump-up security for the defendant’s costs; there will be an opportunity cost in the meantime and the Funder alone will have to bear the expense of having millions of dollars invested with no current or assured return, at the mercy of the legal system. There is also the possibility that the case may be lost, with the Litigation Funder’s investment lost along with it. The Litigation Lender may also have to pay the defendant’s costs which could almost double the Litigation Lender’s downside.

The Litigation Lender is advancing money solely in order to enable the class of aggrieved persons to access justice., which would otherwise elude them – and to profit itself, only if they are successful. If things go wrong in the case, unlike with a traditional lender, only the Litigation Funder will bear the loss. The borrower does not commit or risk any funds through the litigation being funded.

The borrowers, being the Class Members who have signed up to a Funding Agreement and to be represented by the lawyers acting for the Class, are fully indemnified against any adverse costs order(s) and have to pay nothing if the Litigation Lender loses all of its own investment.

Free riders

If a member of a representative group (“Group Member”) decides not to opt-out of the litigation and has also decided not to retain the Plaintiff’s lawyers to act in the proceedings, then the Group Members would not be liable for the legal fees of the Plaintiff’s lawyers. That creates the potential for division within a representative group, with some Group Members paying for legal representation, with other Group Members declining to do so and thereby obtaining a “free ride” (2). (That is when the need for Common Fund Orders or Funding Equalisation Orders arises)

Say there is a settlement for $100,000.00: The Group Members, many of whom ran for cover during the heat of the battle while the litigation was underway, emerge from their caves with their hands out and their palms outstretched. They want their piece of the action now. These are not the aggrieved persons who approached the lawyers and signed a deal with the Litigation Funder, initiated the action and committed themselves to supporting it.

The free rider Group Members whom the Government’s Bill is primarily portrayed as supporting, are essentially the passive opportunists who contributed nothing and took no risk of even a non-financial kind. So let the Courts appoint a Contradictor, by all means, to ensure that any settlement which binds Class Members is fair and reasonable and that the lawyers and Litigation Funders are fully accountable. There would be no substantial settlement for the Court to consider, whether fair or unfair, if there were no reasonable legal basis for the Plaintiffs’ lawyers and the Litigation Funder to have brought the action. They had pursued justice and gained an outcome for the Class entirely at the Litigation Funder’s expense and risk. The Group Members who did not enter into a retainer with the lawyers or sign-up to the terms offered by the Litigation Funder have acted apathetically – even parasitically – but still stand to reap a considerable benefit from the Class Action settlement or verdict.

However, the reason why they are entitled to a slice of the cake which has been backed by the Class Action lawyers, with eggs and flour provided by the Litigation Funder, is because they too were victims of the wrong which has been vindicated through the Class Action. Their interests do indeed need protection.

The Bill before Parliament wrongly treats Litigation Funders and Class Action lawyers as suspect malefactors when, by and large, the Litigation Funder Funder is the only risk taker, whereas in traditional borrowing, the borrowers are the only risk takers.

The Government is acting with gross unfairness towards Litigation Lenders where the Litigation Lender will only ever receive a return in circumstances where the borrowers receive substantial compensation for avenging a legal wrong, only made possible with the Litigation Funders’ money and the Plaintiffs’ lawyers’ work.

Traditional lenders undergo very little scrutiny because when they go about enforcing their rights, they often impoverish the borrower in the process, to the point where the borrower can offer no resistance.

By handicapping only Plaintiffs’ lawyers, the legislation is effectuating a massive legal “gerrymander” in favour of Defendants. Defendants with deep pockets, particularly big business, the Banks and Government, will be empowered like never before, to thwart just claims by their victims, deploying the tools of litigation to drag out cases for years, to push up claimants’ fees. The Government Bill will destroy the business case for Litigation Funders to make a cost-benefit assessment to support deserving Plaintiffs and their claims

If it ain’t broke, don’t fix it.

Judicial supervision works. No new legislation or regulations are needed.

Stewart A Levitt is Senior Partner with Levitt Robinson Solicitors, specialising in corporate law, banking & finance, and class action law, www.levittrobinson.com.

(In this article, the terms, “Litigation Funder” and “Litigation Lender” are used interchangeably. The terms “Class Members” and “Group Members” are also interchangeable)

1 Inglis v Commonwealth Trading Bank of Australia [1972] 126 CLR 161

2 Paul O’Brien, Alexandra Bartlett and Harriet Price, “A Beginner’s Guide to Class Actions in Australia”, YPOL Insurance Update, Yeldham Price O’Brien Lusk 2017

11 08 2021

Immigrant seasonal workers abscond amid ‘slave labour’ claims

lm Uncategorised 0

an orchard worker picks ripe red apples from a tree

Immigrant seasonal workers abscond amid ‘slave labour’ claims

Originally published on The Australian, written by Stephen Rice

Australia’s Seasonal Worker Program is in crisis, with at least 1200 Pacific Island workers absconding from their employers over the past year, more than five times the number the previous year, as key sectors of the agriculture industry face catastrophic labour shortages.

The federal government is so alarmed at the level of absconding that it has launched an aggressive campaign warning islanders – many from Vanuatu – that their families and villages may be penalised in retaliation.

The unprecedented rates of absconding follow allegations of rampant exploitation, abuse and wage theft from seasonal workers revealed by The Australian on Thursday, with some seasonal workers losing more than two thirds of their pay in deductions by labour hire companies.

Some of the 13,000 seasonal workers brought to Australia as farm workers on the promise of wages of $900 a week are left with less than $300 a week to pay for basic items such as food after excessive deductions for accommodation, transport and even water containers.

Figures obtained by The Australian show that 1181 Seasonal Worker Program employees were reported as absconding by their “approved employers” – usually labour hire companies – in the past financial year. The year before, 225 absconded; five years ago, only 117.

Employers claim some workers are simply breaching their contracts and visa conditions in order to move to better-paying jobs, taking advantage of labour shortages exacerbated by the pandemic.

But advocates for the workers say they are running from exploitative conditions. They say some – labour hire companies are selling their workers on to other farmers willing to pay a higher price and then pocket the difference, with most islanders too afraid of being deported to complain.

The payslips and contracts of dozens of seasonal workers seen by The Australian do not suggest any additional benefit flowing to the workers, who are obliged to continue working at set rates for their approved employers under the terms of their visa.

In response to the spiralling number of absconders, the federal government’s Pacific Labour Facility has distributed posters warning workers who run away from their employers that, in addition to having their visas cancelled, their families and community members may be denied work in Australia.

The advertisements, which feature a distraught black man holding his hands to his face, have been condemned as racist and intimidatory by human rights lawyers and South Sea islander advocates.

One poster circulating in Queensland rural areas, warns absconders: “You may bring shame to your family’s reputation.”

Human rights advocates have branded the campaign “racist and scaremongering”.

Lawyer Stewart Levitt, who is preparing a class action against labour hire companies on behalf of seasonal workers, said Australia was invoking its own version of the US Fugitive Slave Act of 1850.

“The Australian government is engaging in the worst form of racism and intimidation,” he said.

A government spokesperson said the poster was developed “to inform workers about the risks of absconding, protect them from scams and prevent them from entering into situations that made them vulnerable to mistreatment”.

11 05 2021

Pacific Island seasonal workers propose class action over claims of wage theft

lm Uncategorised 0

Pacific Island seasonal workers propose class action over claims of wage theft

On RN Breakfast with Fran Kelly (ABC)

Lawyers for seasonal workers from the Pacific Islands are proposing a class action against Australian labour hire companies, saying that some are suffering widespread exploitation and wage theft.

If it proceeds, the lawsuit could disrupt a bumper harvest season and potentially hinder the Australian Government’s new migration schemes, designed to address widespread labour shortages in agriculture.

Guest: Stewart Levitt, lawyer

Producer:

Kea Browning

Duration: 10min 9sec

Broadcast: Thu 4 Nov 2021, 8:18am

11 03 2021

Pacific Island farm workers to launch class action against labour hire firms over wage theft

lm Uncategorised 0

Pacific Island farm workers to launch class action against labour hire firms over wage theft

Originally published on The Australian, written by Stephen Rice

Australia’s already-stalled seasonal-worker program is under challenge from a proposed class action by Pacific Island workers against labour hire companies accused of exploitation and massive wage theft, a move that threatens more disruption to the bumper harvest season.

Some of the 13,000 seasonal workers in Australia are losing up to two-thirds of their pay in – deductions by labour hire companies, according to human rights lawyers, with charges even for water containers taken from the pay packets of farm labourers.

The Australian has sighted dozens of pay slips showing some South Sea islanders brought to Australia as farm workers on the promise of wages of $900 a week are left with less than $300 a week to pay for basic items such as food after excessive deductions.

Potential legal action over abuse of vulnerable workers threatens to disrupt urgent efforts to bring another 27,000 Pacific Islanders to alleviate labour shortages now endangering Australia’s $73bn agricultural industry ahead of a bumper harvest season.

A separate scheme to bring in thousands of workers from ASEAN nations under an agriculture visa is also at risk.

Typical deductions from pay packets include $200 a week or more for accommodation, often in old shipping containers or squalid, overcrowded dormitories owned by labour hire companies who are “approved employers”.

A contract for one worker specifies accommodation will be provided at $135 per week in a two bedroom unit in Ayr, in Queensland, with six people per room. That would earn the provider up to $1620 a week.

Local estate agents rent similar units for about $200 a week in total.

Between $50 to $100 a week is taken by most labour hire companies for “transport” – often in vans operated by the same firms – to move the labourers to the farms where they are assigned to work.

Some workers are also charged $14 for water eskies, as well as having to repay costs for flights, visas, clothing, health insurance and other items, in pay slips seen by The Australian from at least five separate labour hire firms employing hundreds of workers.

More than 13,000 workers are in Australia under the Seasonal Worker Program, with most coming from Vanuatu while others hail from Fiji, Samoa, Tonga and East Timor.

The stated objectives of the programs are to provide foreign aid to citizens of participating countries through seasonal work, and to meet the needs of Australian industry where there is difficulty obtaining “local” workers. But many workers struggle to save enough to remit any money back to their families overseas. Farmers in regional areas are reliant on labour hire companies to provide seasonal workers.

Those who refuse to exploit South Sea workers are left with higher overheads than their competitors, according to human rights lawyer Stewart Levitt of class action law firm Levitt Robinson.

“There is literally a race to the bottom, intensified by the ramping up of the SWP by the federal government,” said Mr Levitt, who is preparing a class action on behalf of workers.

Mr Levitt likened the program to “blackbirding”, the 19th century practice of coercing South Sea islanders to work in Queensland’s cane fields.

“There is a pandemic of worker abuse which is spreading like the Delta virus,” Mr Levitt said.

His firm has already launched a class action in the Federal Court against labour hire company Corestaff on behalf of 80 Papua New Guinean miners brought to Australia on lucrative contracts but sent back to PNG just months later when the work dried up.

The new class action is expected to target labour hire companies supplying both the agriculture and meat processing industries.

Farm workers employed under the SWP have told The Australian of being forced to work 12-hour days with the only break being the time it took them to be bussed from one property to another, working into the night under tractor lights.

A 40-year-old labourer from Vanuatu who wished to be known only as Joseph told The Australian about the conditions on the sweet potato farm near Bundaberg where he worked.

“We would start from 6.30am and work until 11am. Then they would take us to another farm and we would plant work until night. When it got dark they would turn the lights on the tractor so we could keep working,” Joseph said.

When his group from Vanuatu arrived at the farm, they were excited to be given uniforms and boots. “We were happy, but then we discovered they were taking the money from our wages,” he said. “They even took money for the knives we use in the fields.

“We slept six in a room. We never slept well. If someone snores everybody sleeps badly. You cannot breathe properly – there are too many people.”

Joseph eventually suffered a physical and mental breakdown, sitting for hours sobbing. A friend took him to a psychiatrist who said he should take 10 days off work to rest.

His employer sacked him.

10 12 2021

API faces Priceline franchisee class action

lm Uncategorised 0

Pharmacist Chris Lemon is a plaintiff in a class action against takeover target API. Jessica Hromas

API faces Priceline franchisee class action

Written by Carrie LaFrenz published originally on AFR

Takeover target Australian Pharmaceutical Industries has been slapped with a class action by current and former Priceline franchisees, who claim the company had excessive control over their pharmacies and required them to pay fees that are in breach state regulations.

Former Federal Court judge Ron Merkel, QC, has been drafted to lead a team of barristers acting for the plaintiffs in Melbourne.

The statement of claim was filed on Friday in the Supreme Court of Victoria.

The Australian Financial Review reported that Levitt Robinson Solicitors was seeking to mount a claim in July.

API is the subject of a bidding war between Wesfarmers and rival drug wholesaler Sigma Healthcare, which are both conducting due diligence. Wesfarmers this week swooped on a 19.3 per cent stake in the target.

API operates company-owned Priceline stores with no pharmacy attached. It also has Priceline Pharmacy-franchised stores, which must be owned and controlled by pharmacists under the pharmacy business ownership laws across NSW, Victoria and Queensland. The API network totals 474 stores.

Priceline franchisees allege that from November 2010, API has used its powerful position to charge unacceptable fees, including distribution fees and loyalty program Sister Club fees.

The franchisees are seeking to recover the benefits lost due to Priceline withholding rebates for not complying with mandated in-store product displays.

It is alleged that provisions in the franchise agreements breached state legislation by requiring franchisees to stock stores from Priceline’s merchandising range, and place orders through its auto replenishment system, churning franchisee debt through Priceline’s parent company, API.

According to the statement of claim, Ranya Youssef, the operator of a Priceline pharmacy in Ashwood, Victoria, is the lead plaintiff. The second, third and fourth plaintiffs are related to former franchisee Chris Lemon in NSW.

Mr Lemon, who operates an independent pharmacy in Sydney’s Frenchs Forest, previously had two Priceline stores at Manly and Chippendale.

He said there had been a lot of worry with his livelihood on the line.

“This is a relief that it’s been lodged now, because the litigation funder takes the financial responsibility. This was not our preferred option, and we wanted to settle this years ago with API, but they walked out of the mediation that was compulsory under the Franchise Act,” he told AFR Weekend.

Mr Lemon said the civil proceedings he is separately engaged in with API – which claims he owes it $2.1 million following the sale of his two shops in 2019 – would likely be stayed pending the outcome of the class action.

An API spokesman said the court documents had not been served on the company, but it was “our intention to vigorously defend the case”.

Mr Lemon said the Pharmacy Act was designed so the pharmacist remained in control to protect the public.

“API controls everything when you operate a franchise under that Priceline banner,” he said.

Stewart Levitt, of Levitt Robinson Solicitors, is leading the class action, which is being funded by Just Help, a group associated with New York firm Galactic Litigation Partners.

He said at least 30 current or former franchisees were participating in the claim across three states. The class action uses an opt-in model, with the firm only acting for franchisees who sign funding agreements.

“The funding scheme pre-dates the (federal) Treasurer’s attempt to stymie access to justice by aggrieved small business,” Mr Levitt said.

“The pharmacies are a high stakes business and some were acquired for seven figures or more, and their losses or diminished profits are of that order.”

The plaintiffs are seeking undisclosed damages, plus costs, from API.

Levitt Robinson partner Chrystalla Georgiou said in some cases franchisees were bankrupted and trading entities were liquidated as a consequence of API’s alleged behaviour, and damages could range from several hundred thousand to millions of dollars per pharmacy.

09 22 2021

Prospective Overwatch Class Action

lm Uncategorised 0

Prospective Overwatch Class Action

FMC accused of bamboozling growers over crop damage.

The Senior Partner of the law firm spearheading a Class Action against global herbicide manufacturer, FMC Australasia, has accused FMC of bamboozling farmers with misleading statistics and the crop damage suffered from the use of FMC’s herbicide, “Overwatch”.

According to Stewart Levitt of Levitt Robinson, “Telling farmers that only 1% of land treated with FMC’s herbicide, Overwatch, has been affected, is meaningless because Overwatch did not adversely affect all crops: Barley crops were the most often damaged where farmers were not given the right instructions by FMC. Wheat (and also canola) crops have been affected but with lesser frequency”. According to Levitt, “The only meaningful statistics relate to the percentage of cultivated land on which vulnerable grain products, such as barley, were sown and where Overwatch was applied”.

The issue according to Mr Levitt, is also much more serious than “transient bleaching”. Mr Levitt said: “The damage caused by Overwatch in many cases is permanent. If it hasn’t killed the crop, it will seriously affect yields and also quality”.

FMC has also been criticised for issuing an open letter to affected farms on 8th September, 2021, without identifying its author or even being signed.

Levitt Robinson, via Class PR, has registered scores of affected farmers who have suffered extensive crop damage when using Overwatch, to eradicate rye grass and broadleaf weeds.

According to extensive reports from affected farmers, Overwatch has been incredibly effective against weeds but it has also caused very damaging side effects to barley and to a lesser extent, other grains.

All preliminary inquiries with prospective plaintiffs are being handled by Class PR.

For further information on the prospective class action, call Brett Imlay, Special Counsel, on 0408 831 900, or Stewart Levitt on 0407 323 737, or email slevitt@levittrobinson.com.

Class PR

Level 3, 162 Goulburn Street
Sydney East 2010
02 8267 9499

See below:

Letter from FMC Australasia Pty Limited dated 8th September, 2021, and Levitt Robinson’s reply of 17th September, 2021.

With compliments

Dana Levitt
Class Public Relations

Letter from FMC Australasia Pty Limited

08th September 2021

We value our ongoing partnership and communication with you and so wanted to ensure you received the facts on a potential issue.

You may have received an email from Levitt Robinson, or someone associated with this organisation, in which they suggest that you should talk with them about a possible class action against FMC.

This law firm has called on growers who are concerned about lingering crop effects following the use of Overwatch® Herbicide in barley to work with the firm.

No legal action has been filed.

What is the issue?

FMC is currently investigating reports relating to enhanced bleaching in crops where Overwatch® Herbicide has been used. The reports we have heard are cases of transient bleaching that farmers are either unfamiliar with, or deem to be excessive from the use of a herbicide, and generally where there were adverse weather conditions. These reports are mainly from farmers, resellers, or agronomists, or from commentary on social media.

FMC is investigating these reports on a case-by-case basis, as much as COVID-19 travel guidelines allow.

The reports being investigated are currently estimated at one percent or less of the total crop area treated with Overwatch® Herbicide in Australia this year. Put in perspective, that total treated crop area is estimated at more than1million hectares.

For more information please see the FAQs on our website:

http://www.fmccrop.com.au/en/products/herbicides/overwatch_herbicide.htm

Facts that Levitt Robinson are not telling people in their communication

So far, the law firm has not been successful in getting people to be interested in a litigation.

That is probably because of a number of reasons:

1. Where Overwatch has been used according to label directions, reports received by FMC to date are that only 1 % of all hectares treated with Overwatch are experiencing issues.

2. FMC understand that a lot of the people who experienced issues early in the season are now seeing substantial recovery of crops – which is what FMC always expected would occur.

3. No-one has actually suffered any measurable yield penalty – so they do not know if they have a case.

4. If there has been legitimate on label use of FMC product and there has been a yield penalty at harvest, FMC will address that with the grower concerned.

5. FMC, agronomists and growers will not know that until December or January. Until then FMC will continue to monitor farms and work with growers.

6. Growers generally understand what a class action firm does and most do not see the economic benefit to them in a class action. FMC notes that:

a) In general, some class action firms sometimes take a significant portion of the settlement for themselves and their funders. There is no guarantee that this would not occur if there was a class action against FMC.

b) A legal case usually takes 3 to 4 years to resolve. Growers would rather not take that risk and instead look to resolve matters directly with FMC, where they have a concern which they can substantiate.

c) Growers who have legitimate issues will be able to make a decision for themselves whether they want to engage directly with FMC or through a class action law firm – with the associated costs and delays that could result from a class action process.

7. Growers should be aware that “no win, no fee” proposals by a law firm do not mean that they are not at risk in a class action. Off label use, poor application techniques and other non-product related matters may account for many of the issues FMC have seen. In those circumstances, a case would fail, and the grower would be at risk of paying the legal costs of FMC if they became involved in the failed case.

FMC and stewardship – our ongoing commitment

In its focus on contributing to competitiveness in Australian agriculture by investing in innovative crop protection products, FMC continues to work with growers, agronomists and resellers to ensure safe and responsible use of its products.

Integral to this is our stewardship program which is dynamic, targeted, and engages resellers and agronomists, who in turn communicate to their grower clients. With its team on the ground across Australia, every day FMC is working collaboratively along the value chain to improve stewardship and continue to build trusted relationships.

Bringing a new product to market means years of development, thorough testing, and official approval from the relevant agencies. This is FMC’s commitment to, and partnership with Australian grain growers.

With more than 1 million hectares treated with Overwatch® Herbicide this year, FMC has worked hard to gather feedback and assess its performance. Any challenges experienced, however few, are noted and the FMC regional team is literally walking the paddock with the growers and in some cases also the agronomists to ensure we continue to build strong relationships and work together to remain competitive.

FMC will continue to monitor the situation and work with concerned growers and industry partners to support Overwatch® Herbicide users as required for each case.

Please contact us if you would like more information on: +61 298 870 900