Proposed changes to Blue Card laws: Are they necessary? by Remy Kurz
Proposed changes to Blue Card laws: Are they necessary?
I have previously written about endemic problems with the current Blue Card system in my blog Blue Card laws: Is ‘exceptional the new normal’? (access here).
In that article I challenged Blue Card Services’ (BCS) use of the ‘exceptional case’ provision under section 221(2) of the Working with Children (Risk Management and Screening) Act (‘the Act’) and posited that the frequency this subsection was relied on by BCS was at odds with its plain reading.
Currently the Child Protection Reform and Other Legislation Amendment Bill is under consideration by Parliament. Amongst other aims, it seeks to further broaden the ‘information’ that BCS might access when assessing those who wish to work, or volunteer with, children.
It is of course important, at the outset, to state the obvious – children need protection as they are inherently vulnerable. There is no question that those convicted of offending against children should either be refused Blue Cards or, at very least, have their applications come under intense scrutiny. My concern is not with these most necessary of screening powers. This article is concerned with the ever expanding pool of ‘information’ upon which BCS may rely on to refuse an application for a Blue Card for people who haven’t been charged with, or convicted of, offences relating to children.
Firstly we should recognise the devastating impact that a refusal of a Blue Card can have on an applicant’s employment prospects.
Imagine an applicant who has some past indiscretions which, even if objectively serious, did not involve, either directly or indirectly, any harm coming to a child or a child being exposed to any harm.
The applicant progresses through tertiary studies and plans to be a high school teacher. They reach the practical component of their study and require a Blue Card. The legislation, as it currently stands, presumes they should receive a Blue Card. They apply for the Blue Card. That application is refused on the basis of their case being deemed ‘exceptional’. If they accept that decision they cannot re-apply for a Blue Card for 2 years. Their entire academic progress is halted, they cannot complete their degree and they have accumulated a large HECS debt for a course of study which ultimately results in no avenue of employment.
Even if the Applicant appeals the BCS ‘exceptional’ determination they face a 12-18 month delay before the appeal is heard at QCAT. Throughout that period BCS do not reconsider their position. Upon receipt of a psychological report which suggests no discernible risk to children, BCS do not make a mea culpa and issue the Blue Card. BCS stays the course. They justify their position by reference to their remit – “how can we ever be wrong if we aim to protect children?” They have a team of lawyers ready to defeat the largely self-represented pool of litigants who can be bothered sticking it out through a concerningly long appeal process. The house doesn’t always win but the odds are stacked in their favour.
All of this is to say that the system, as it currently stands, is already hopelessly slanted against anyone with some form of adverse ‘information’ – I pause to note this doesn’t even mean they have been found guilty of any offence.
You might think against such a backdrop that the current Bill might seek to redress these systemic inequalities. Unfortunately, it does quite the opposite.
The Bill proposes (amongst other things) to amend s221 of the Act. This is the same section already being tortured by BCS (discussed in my previous post). The new section allows BCS to have regard to ‘domestic violence information’. So what is domestic violence information?
Domestic violence information, about a person, means information about the history of domestic violence orders made, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012.
That might sound like reasonable information to be assessed for those not familiar with working within the DV sphere. For those who are, it is easy to recognise the potential misuse of this ‘information’.
Why the concern?
There are many reasons why this information should not be part of BCS’ assessment, I will try and enumerate the most important of them:
1) ‘Domestic Violence Orders’
You get the impression, at first glance, that this would allow BCS access to information relating to final protection orders made either by consent of the Respondent or after a contested hearing. That impression would be erroneous. BCS would be granted information on any order, even a Temporary Protection Order (TPO).
Any practitioner who works in this space is aware that TPOs are made in perhaps over 90% of domestic violence applications. That effectively means that the vast majority of Respondents to a domestic violence application would have this information provided to BCS, even though no final protection order has been made, nor the merits of the application determined.
The legislative test for the making of a TPO is less onerous than the making of a final protection order.[i] Moreover, the making of a TPO often has no bearing on whether a final order is made. A TPO is most commonly made at the commencement of an application (often ex parte) and on the basis of what is in the application. There is no proper scrutiny of the merits of the application, other than to ensure it discloses a relevant relationship and some claim of domestic violence.[ii] The Courts can be forgiven for erring on the side of making a TPO, particularly when a matter might take 12+ months to reach a final hearing and tensions are high between the parties in the wake of the filing of the application.
So what are in these applications that BCS will gain access to? Most applications contain legitimate claims of domestic violence and merit a TPO. Many applications might contain allegations of domestic violence which have no nexus with a child, i.e. no child is harmed or exposed to domestic violence. Some applications contain patently untrue or exaggerated allegations, quite often included to further family law aims. The current Bill doesn’t discriminate between these types of applications. All material within an application (and related affidavits) would be fair game to BCS.
Can you imagine how a body already notorious for its questionable use of ‘information’ would use this domestic violence information? To suggest BCS are capable of delineating domestic violence generally and domestic violence which might properly impact someone’s ability to work with children is fanciful. BCS have shown time and time again they are willing to refuse applications on the basis of criminal allegations which have led to acquittals! How could they possible be trusted to properly apportion weight to the ‘domestic violence information’ they receive?
- Police Protection Notices (PPNs)
A PPN is a form of initiating process[iii] which also imposes conditions on its recipients. The Police issue a PPN to ensure conditions are in place against a Respondent while the matter awaits a Court date. The PPN then takes the place of an application once the matter is before a Court. As above, this will likely result in the making of a TPO.
The Police are under understandable pressure to act on any claim of domestic violence. They must err on the side of caution and issue a PPN where they feel there is a risk that an Aggrieved will be subject to domestic violence. However, to suggest that the issuing of a PPN can be used as some sort of indicator as to the strength of a domestic violence application is misguided. While one would hope a PPN is framed in a slightly more objective fashion than a self-represented application, its inherent reliance on the (typically oral) version of one party over another makes it probative value slight.
What concerns me is how BCS will use the veneer of objectivity associated with a PPN to ground an exceptional case. The reasoning would no doubt be “Police deemed it necessary to impose a PPN so the allegations within it must be true”. This isn’t a criticism of Police. They are not flies on the wall observing domestic violence incidents. They must rely on the versions given by Aggrieved. The risk though is that this ‘information’ (I cannot in good conscience call it evidence) is elevated to a degree of probity by BCS that can affect the livelihood of applicants despite it not even having being tested in a proper court process, for example, via cross examination or by an affidavit in response.
There are many, many PPNS which do not result in temporary of final orders. Despite this, under the new law, the mere making of a PPN could be used by BCS to deem a case exceptional.
- The inclusion of children as named persons on TPOs & Protection Orders
Properly considered, a child should not be listed as a named person on a domestic violence order, either a TPO or a final Protection Order, unless there has been evidence presented which suggests the child requires protection from domestic violence or being exposed to domestic violence.[iv]
The reality is quite different. Children are routinely named on these orders as a type of pre-emptive measure. What self-represented Aggrieved with children will not tick the box ‘do you wish this child to be named on the order?’ on the standard DV application? What Magistrate who hears of serious domestic violence between parents won’t just add the children for ‘peace of mind’ even if the legislative test is not properly addressed? It is entirely understandable why children are named in such circumstances. The issue is how BCS will use this fact.
Frankly I have no confidence that BCS will not simply see that children are named on an order and deem a case exceptional. I have seen them adopt similar reasoning in cases I have worked on already. It provides a simple, if not superficial, nexus to their remit of protecting children. But should it be this simple?
Remember we are not just talking about final orders, the Bill allows for considerations of TPOs, made on an interim basis without the testing of the application to any significant degree. What if there is no evidence a child was impacted by domestic violence but they are named anyway? What if a TPO naming the children is made but a final order is refused? What if children are named in the TPO but not on the final order? What if the Respondent consents to an order naming the children just to save the hassle of coming back to Court over and over again?
In all of the above circumstances it would be difficult to suggest a nexus between the ‘information’ being made available to BCS and the ability for a person to work with children. Do we really have confidence that BCS can make such a distinction?
- The impact on the Domestic Violence Courts
This issue is the great sleeper in this debate and, quite plainly, has not been properly considered by the legislature.
The vast majority of domestic violence applications resolve on a consensual[v], “without prejudice” basis. That is an order is made without the need to find that domestic violence occurred or that an order is necessary or desirable. The reasons for this are varied but include: the strength of the application against the Respondent; their lack of resources; the desire to avoid continued litigation and the knowledge that, save for limited exceptions, no criminal record or other adverse legal consequences flow from the mere making of an order.[vi]
If, however, the making of an order (be it a TPO or final Protection Order) can be used to refuse a Blue Card application it is clear that the incentive to consent to an order (either temporary or final) on a consensual basis is greatly impacted.
A Respondent, properly advised, would contest the making of a TPO and the making of a final order if holding or obtaining a Blue Card was important, or could be important, to their livelihood. This would cause an enormous issue for Domestic Violence Courts already bursting at the seams.
What is the net effect of more contests in the DV arena? Well, it means more cross examination of victims of domestic violence; greater delays in obtaining an order; the prolonging of animus between the parties; an increased outlay in legal fees; more breaches of TPOS (they being in place longer); increased Police work administering TPOs….the list goes on. Do these collateral impacts undermine the overall efficacy of the Bill? Put differently, are the incremental benefits sought by the Bill usurped by the impact on the domestic violence framework?
- Case studies
Sometimes considerations of prospective legislation can be too prosaic to have an impact. Consider the following case studies to illustrate my above concerns:
Case Study A
Lena is dating John. They come home after a night celebrating a wedding. Both are impacted by alcohol. John accuses Lena of infidelity. Lena denies it. John makes domestically violent comments towards Lena. Lena retaliates by throwing her phone at John causing a small scratch. The Police are called. The Police see John’s injury and assess him as the person most in need of protection. They issue a PPN against Lena. The PPN adopts a version more favourable to John as his injuries seem to corroborate his story.
Lena now has relevant ‘domestic violence information’ which allows for BCS to deem her case exceptional and deny her a Blue Card.
Case Study B
Mike and Brad are married. They have two children under the age of 5. Mike has, for a continued period, coercively controlled Brad through various means including via financial control and manipulative behaviour. Mike has resolved to leave Brad. He moved out of the home leaving the children in Brad’s care, albeit he wants to regain custody of them. Mike makes an application for a domestic violence order against Brad. While the children haven’t been exposed to any domestic violence Mike includes them as named persons in his application because he is worried that Brad will lash out against them to get back at him for moving out. The matter comes before court. There are 20 matters before the Magistrate that day. The Magistrate imposes a TPO naming the children. She says that the naming of the children at this stage is precautionary and full consideration will be given to whether they ought to be named on a final order, if one is made.
Brad, who holds a Blue Card, now has ‘domestic violence information’ which BCS say is such that a negative notice should be issued. They reason that the children were named in a domestic violence order and, under the domestic violence legislation, this can only occur when the Court is satisfied that there is a risk that the child will be the victim of, or be exposed to, domestic violence. Brad loses his job as he doesn’t have a Blue Card and his prospects of future employment working with children are evaporate.
Case Study C
Tony and Maria were married but divorced 10 years ago. They share 3 children. Maria has recently commenced a new relationship. Tony is not happy about this and, in a series of increasingly domestically violent text messages to Maria, makes his displeasure known. Maria makes an application for a domestic violence order to prevent Tony from messaging her about anything other than the care of the children. Tony accepts he went too far and, had the old law applied, would have consented to an order on a “without admissions basis" but he is a volunteer firefighter and needs a Blue Card to continue in this role. He is told that the making of a TPO or final order will result in Blue Card being granted access to the Maria’s application and supporting affidavits. He is told this may result in him not being able to be a volunteer fire fighter anymore. Tony uses his life savings to engage a barrister to avoid the making of a TPO and to contest the final hearing. Due to his superior legal representation, Tony avoids the making of a final order despite a finding that he was domestically violent. He continues to be domestically violent towards Maria.
Are the changes required?
BCS’ decision making is only as good as the information it has available to it. The ability for them to consider ‘domestic violence information’ which, for the reasons above, is not always reliable, let alone relevant, to BCS’ remit, will only further disenfranchise those who require a Blue Card for employment, study or volunteer purposes.
Most importantly, the change of the law has the ability to impact the way in which domestic violence proceedings are litigated. As can be seen in Case Study C, this may mean those who might otherwise avail themselves of protection lose out due to the higher stakes placed on the outcome of the application.
The Act already has a ‘catch all’ provision. BCS is allowed to consider ‘other information about the person that the chief executive reasonably believes is relevant’.[vii] Isn’t this sufficient?
The law as currently applied by BCS affords children the broadest of protection. For reasons expounded in both this and my previous post on the issue, if any change was needed to the current law it was to redress the contorted lens BCS was using to find an ‘exceptional case’.
To push the law in the opposite direction would afford children little further protection, noting the catch all provision mentioned above; conversely, the new provisions are ripe for exploitation by BCS to expand their already overzealous assessment methods to further limit people from working, studying or volunteering in their field of choice.
Remy Kurz
Solicitor, Accredited Specialist in Criminal Law
4 November 2021
[i] Section 46, Domestic and Family Violence Protection Act (2012) cf s37.
[ii] Ibid.
[iii] Section 112 Domestic and Family Violence Protection Act (2012)
[iv] Section 53 Domestic and Family Violence Protection Act (2012)
[v] Section 51 Domestic and Family Violence Protection Act (2012)
[vi] Obviously the breach of an order is different and the Respondent is also prohibited from holding a weapons licence.
[vii] Section 221(1)(d)
Cross Applications in Domestic Violence proceedings: Let cooler heads prevail by Remy Kurz
Cross Applications in Domestic Violence proceedings: Let cooler heads prevail
The Domestic and Family Violence Protection Act (2012)(Qld) eschews the rules of evidence in the aim of making the processes and procedures relating to applications under the act more accessible for self-represented applicants.
Domestic violence is a dynamic concept, always expanding and, often, although erroneously, viewed through a subjective lens. A combination of these factors has, to my mind, resulted in the proliferation of domestic violence applications which are pursued to gain a collateral advantage in family law proceedings. To be clear I am not suggesting that all or even most applications are pursued on this basis. Most applications do detail instances of actionable domestic violence. What I am concerned about is the burgeoning body of applications that can readily be identified as a tool used to further family law aims.
These applications are a serious problem. They must be identified and treated accordingly. It must never be forgotten that the making of Court Orders which affect various rights and interests are serious matter. In RMR v Sinclair [2012] QDC 204 at [13], His Honour Judge Deveraux SC remarked that; “[t]he making of a [Protection] order is a serious matter. Orders should not be made lightly. Breaches involve, as the learned Magistrate said, community as well as personal concerns.”
So, what are some of the problems with vexatious applications?
Firstly, they slow the progress through the courts of meritorious applications by those who are genuinely in need of protection under the law.
Secondly, if such an application is pursued via the Police[1], it can place a strain on police resources and limit their effectiveness in addressing genuine domestic violence cases.
Thirdly, these applications take advantage of the absence of rules of evidence and the expanding definition of domestic violence to weaponise the inevitable tumult surrounding the breakdown of relationships. Not every argument is domestic violence. Not every stern text message is abusive. Not every discussion about finances is a form of financial control.
Fourthly, such applications only serve to further aggravate the often already fractious relationship between the parties. This can have downstream effects for any children and family members who are often pitted into the adversarial paradigm now established by the filing of the application.
These are just a few of the public policy considerations. The forensic considerations for the client are equally problematic.
A client pursuing such an application is often fighting a war on two fronts – in the domestic violence and family courts. This can come at a high emotional and financial cost.
Once the proceedings are on foot all parties need to be very aware of the potential cross admissibility of affidavits filed in support of their positions. Great care must be taken to ensure these affidavits are consistent across the two jurisdictions and that the forensic decisions taken in defending the protection order application don’t impinge upon the broader family law aims. Any misstep can derail progress, particularly in the family law litigation which relies so heavily on negotiated outcomes. Working closely and productively with family lawyers is critical.
Perhaps the most concerning forensic issue arising from these types of applications is the vexed question of cross applications.
The chastised Respondent in a family law motivated domestic violence application often, and quite understandably, feels wounded by the bringing of such an application. The marriage/relationship has often lasted years without any suggestion that either party has been domestically violent. Lo and behold, after separation and with one eye on the battles to come, the relationship is suddenly Sid and Nancy. The grounds for applications arising in such circumstances are often so tenuous, so subjective and self-serving that naturally, the Respondent feels that they too have a myriad of examples which they could also torture to the point of labelling domestic violence in a hastily filed cross application.
The desire to retaliate by filing a cross application is common and is not helped when the Respondent’s family lawyers fan the flames by suggesting some forensic advantage might be gained by making such an application.
There are obviously instances where cross applications are appropriate. This blog isn’t about those cases. It’s about the marginal ones. What I am suggesting is that great care needs to be taken before recommending to your client to make a cross application.
In my view the following considerations are often highly relevant when contemplating a cross application:
- You risk validating the original application.
If the original application relies on spurious and tenuous incidents of domestic violence by responding with a cross application particularised by similar types of incidents, you are, in fact, signalling to the Court that the original application has merit. You are tacitly accepting that your opponent’s threadbare claims are capable of amounting to domestic violence as you yourself rely on similar claims to meet that requirement in your application. Similar considerations apply to assertions about the necessity or desirability of an order.
- You may lose the moral high ground
Right or wrong, cross applications can, at first blush, look like petty retaliation.
One of the most effective ways to counter applications being pursued for a collateral purpose is to take the moral high ground by not making a cross application. What I mean by this is that by asserting to the Court, in your material in response to the application, that the Aggrieved has also been responsible for acts they now rely on as domestic violence but that a cross application is not pursued as your client accepts that the accoutrements of the dissolution of a relationship are, more often than not, not domestic violence. By subtly making this point you are signalling to the Court that you appreciate that there must be some threshold of acrimony which does not amount to domestic violence. That you should not abuse the Court processes when you are not genuinely in need of protection. That the ends of relationships are hard and that while people say and do things they regret, not all of these actions are domestic violence or, more precisely, warrant a domestic violence application.
In a jurisdiction bulging at the seams with dubious applications, self-represented litigants and Magistrates urged to act on assertions rather than evidence, showing yourself to be the more reasonable party is often a smart forensic decision.
- You risk the Court taking the easiest option of imposing orders for both applications
In some instances, mutual Orders are necessary. However, this is generally where there are genuine domestic violence allegations being made by both sides.
The legislation is protective in nature and construed broadly. Magistrates can be forgiven for erring on the side of caution in borderline applications and imposing an order. Our experience shows that this is particularly the case when cross applications are pursued. The Court’s might reason that mutually imposed orders ensure a power balance which is beneficial for the parties moving forward. When the applications mirror each other in the types of domestic violence which is alleged, this is even more common. A client should be advised that there is a real possibility that if they pursue a cross application many Courts will resolve both applications by imposing an order on both parties (and no, this isn’t a reason to pursue a hopeless application).
- You are making the proceedings more forensically complex
Responding to an application in a structured, logical, balanced and concise fashion is almost always in your client’s best interests. With the introduction of a cross application there is naturally a far greater pool of material which the court and the lawyers need to consider. This often calls for more complex and detailed filings which, if you’re not careful, resemble those of the family courts. The agility borne of not bearing an onus is lost and you can become mired in the literal “he said, she said” contentions of both parties. This is often unhelpful particularly when you remind yourself that the Magistrate is reading and hearing the evidence for the first time on the day of hearing and will not relish the prospects of reading voluminous affidavits.
- You may risk losing a realistic chance of costs
Costs under the DFVPA are extremely difficult to obtain. Applications filed by lawyers really shouldn’t fall foul of the criteria which might enliven a costs application. However, if you make a cross application which, as the Act decrees, must be determined at the same time as the original application, it is difficult to delineate the costs associated with responding to the original application from the costs associated with the bringing of the cost application. Moreover, one of the largest components in the calculation of costs – the costs associated with attending the final hearing – cannot said to be solely related to responding to the original application. The line therefore to successfully obtain costs, already very narrow is further compromised by the presence of a cross application.
Conclusion: We all have a part to play
It would be easy for me to write this critique and conveniently leave out a key cohort responsible for the problem: lawyers. We must commence from the premise that our clients will, by in large, follow our advice.
As Uncle Ben says, with great power comes great responsibility. In this instance, that responsibility, consistent with our ethical duties, is to not recommend applications (whether they be originating or cross applications) which are lacking in merit. Equally, when someone does allege domestic violence and is in need of protection, we have an important role to play in best ensuring their safety.
To this end, I have found it very helpful to take work on both sides of domestic violence applications. It has helped me understand the nuances of working with both victims and perpetrators of domestic violence. It also helps develop the ability to objectively assess a case before filing the application. For that reason I am circumspect before recommending the filing of any domestic violence application. I ask the client to provide me with a short list of particularised instances of domestic violence they will allege so that I can, putting on my Respondent hat, critically evaluate these claims to ensure the application has merit. This approach might not always suit the ‘baying for blood’ applicant but, once you explain your reasoning behind it, they will often come to thank you for taking the time at that early stage to truly assess whether an application is worthwhile.
Of course there will always be a less scrupulous lawyer who will see the financial incentive to advise otherwise but, by acting responsibly and hopefully reducing the amount of frivolous applications pursued for a collateral purpose, such applications will be become more easily identifiable by the courts.
Rémy Kurz
Senior Associate
Robertson O’Gorman
Accredited Criminal Law Specialist
9 July 2021
[1] This isn’t a criticism of Police, the current political climate makes it incumbent on them to act on claims of domestic violence and operational realities make forensic consideration of the merits of such an application difficult.
Pell: High Court finds complainant’s reliability and the existence of reasonable doubt are far from mutually exclusive
A good friend who isn’t a lawyer messaged me in the wake of the Pell decision and asked for my thoughts. I shot back:
”Legally speaking absolute no brainer, there was so much unchallenged evidence that he couldn’t have had time to commit the offences they said he did.
It is not a case about whether the complainants should have been believed but whether even if they were believed, could a reasonable doubt co-exist. Clearly the court has found it did exist and should have led to an acquittal.
A win for common sense.”
Those criminal lawyers amongst us might have guessed the inevitable next question: “yeah but did he actually do it?”
It’s at that point where we descend into more esoteric territory.
Many feel that the justice system is premised on unearthing ‘the truth’. I understand that sentiment but cannot subscribe to it blindly. The truth should be the desired destination but to get there we must work within a robust framework that protects the innocent. As a result, I explained to my friend that I wasn’t greatly concerned with the answer as we rarely ever know these things definitely. I was more interested in the system and the need to maintain, regardless of the profile of the case, the presumption of innocence. In this case there was certainly enough evidence to establish a reasonable doubt and, most importantly for the High Court, this doubt was not displaced by the Crown.
The illusion of a fair trial
The above analysis pays no heed to the prevailing public sentiment- nor should it. In the wake of the Royal Commission those abused by the Church have, quite rightly, been galvanised in their quest to ensure those responsible for institutional abuse receive the full force of the law. I for one certainly didn’t believe Pell was entitled to any special treatment. But, and it is a big ‘but’, if he was to face the full force of the law he was also entitled to be protected by the law. This means receiving a fair trial. Could such a prominent figure – the personification of all the church’s failings – ever receive a fair trial? We must acknowledge that the impact of the Royal Commission and the media coverage of such high profile cases are not contained in a vacuum. Every juror, consciously or otherwise, must have felt the weight of this expectation, so too the Victorian Court of Appeal. What does this matter? Well it highlights that there are often understandable reasons (none of which are framed by malice) that might impermissibly impact a jury’s decision. In those circumstances appellate intervention acts as a necessary bulwark against injustice.
But what about the sanctity of a jury’s verdict?
I anticipate a lot will be said about the High Court effectively usurping the jury’s verdict. Generally speaking such a criticism is fair, it being well established that the jury’s verdict should not lightly be dispensed with. However, on reading the judgment it is apparent that the Court was awake to this concern. The judgment stresses the necessity for the Crown to eradicate reasonable doubt and that its failure to do so impacted the jury’s verdict. In a football game the result can turn on the way in which the game is refereed; spectators might form the wrong impression on who should have won the match as they witnessed the game through a distorted lens. The same goes for juries – they can only be expected to adjudicate on what evidence they receive and the directions they are given. It follows that while a jury’s verdict ought not be meddled with, such a principle is underpinned by a precondition that a jury must be properly instructed on the law. In this case the High Court recognised that this precondition had not been established leading to a verdict which was not supported by the whole of the evidence.
Compelling complainant cannot overwhelm objective unlikelihood
In the future this case will be cited where the complainant might prove to be a compelling witness but where other evidence, particularly unchallenged evidence, suggests that the offending was inherently improbable.
That takes a little bit of mental gymnastics to get your head around but it is a sound proposition. When we assess the reliability of a witness we can so often be blinkered on the consistency of that evidence, rather than its plausibility. In this sense we, like the jury or Victorian Court of Appeal, may hastily conclude that the reliability of that evidence overrides any doubts about its probability.
Many victims’ advocates will cry foul over this distinction. How can a complainant be a believable witness but the defendant be acquitted? While I am sympathetic to this argument, it is simplistic. While I accept this decision may have a negative impact on the rates of reporting sexual abuse, I unapologetically say that this is the lesser of two evils.
Ultimately, we are aware that false complaints are made. The possibility of an innocent person being convicted is far graver than the potential reticence of victims to come forward. The distinction drawn by the Court was a vital one and in cases where the allegations are historical in nature, goes some way to redressing the prejudice which has been occasioned by the delay in complaint.
A win for judicial independence & Justice Weinberg
More broadly speaking, the decision underscores the importance of an independent judiciary. The decision is undoubtedly unpopular within the general public. Not many tears would have been shed had the conviction been upheld. However, much like in the earlier decisions of Fennell and Coughlan, the High Court has demonstrated that they are not averse to dipping their toes into criminal cases to ensure that miscarriages of justices are not perpetuated. An emboldened High Court demonstrates a robust separation of powers – never a bad thing as we edge closer to the partisanship of the US.
The second takeaway may well be the importance of having judges with extensive criminal experience consider such complex appeals. The dissent of Justice Weinberg QC in the Victorian Court of Appeal was much cited in the High Court’s decision. It seemed he understood what the trial judge and the other members of the Court of Appeal did not- that the way in which the jury was encouraged to reason downplayed the importance of, and perhaps even reversed, the onus of proof. It is fair to comment then that Pell benefited from his matter being heard by Justice Weinberg QC whose dissent provided a roadmap to his ultimate acquittal.
Remy Kurz 7 April 2020
The views expressed above, including any errors, are that of the author and do not necessarily represent the views of Robertson O’Gorman Solicitors
Statistics and the Jury: The numbers don’t always add up
In my days prior to becoming a lawyer I profess that I was a sucker for all things Law & Order. Not the high-minded ‘concerned citizen’ use of that phrase but rather the fictional inner workings of two separate but equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders … in neat 40 minute episodes.
In those tightly written episodes the defendant was often baited into participating in an inculpatory interview with Police with his seemingly mute public defender by his side. In contrast to this legal ineptitude, what I really pined for was the courtroom scenes. Like those Tom Cruise cross examining Jack Nicholson moments (“You can’t handle the truth!” Mixing my references here, indulge me) where the wily prosecutor swayed the jury through devastating cross examination of the cocky defendant.
As I eagerly awaited these mic-drop moments I learned something else which, I am more confident in saying, is reflected more commonly in criminal practice…. Science is King. Whenever the State wheeled out a scientific expert their evidence was afforded significant weight as the jurors looked on nodding and taking fervent notes. Science, it seemed, was the backbone of every good prosecution.
Far more eminent minds than mine have spoken about the ‘Lab Coat’ and ‘CSI’ (a far inferior show, BTW) effects on jurors. Suffice to say, the evidence of an expert witness with all its real and imagined objectivity can cut through the clouds of lawyerly excrement and provide the jury with compelling evidence upon which to base their verdicts.
In the case of DNA juries have become increasingly exposed to the use of probability statistics and, when faced with competing arguments from either side of the bar table, jurors could be excused for falling back on those verifiable scientific figures as a sort of universal truth which trumps the fallibilities of the ‘human’ evidence.
‘Good Science’, therefore, helps both the Prosecution and the Defence. I am not going out on a limb by saying that advances in forensic science have led to a reduction in miscarriages of justice and, equally, helped convict offenders who might otherwise have escaped prosecution.
It was with all of this in mind that I read the recent Court of Appeal decision in R v Lang[1]. In their joint judgment the Court overturned a murder conviction and ordered a retrial.
In Lang the Appellant successfully argued that the jury had received statistics from an expert which were “irrelevant and hence inadmissible”.
The deceased, who was in a romantic relationship with the Applicant at the time of her death, had been found with a knife protruding from her chest. The defence case was that she had committed suicide, the Prosecution alleged that she was murdered by the Applicant. It was common ground at the trial that the deceased had Bi-Polar Disorder.
During the trial statistical evidence of the rates of suicide in women and, further, statistics about the use of sharp implements in such suicides, was adduced from an expert witness. The Court of Appeal explained the problem with such evidence:
[40] A death caused by a knife wound is itself a rare occurrence, whether the wound is self-inflicted or otherwise. This event having occurred, there were two hypotheses which had to be considered by the jury. The prosecution case was that it was very rare for a woman, even with bipolar disorder, to kill herself, particularly by stabbing herself, which, whilst not of itself proving the fact, made it more probable that she had been murdered. The fallacy in that argument is that the evidence signified nothing about the relative likelihood of the alternative hypothesis, namely that she was murdered….[42] In a case where the jury had to consider two alternative hypotheses, evidence which was said to indicate the likelihood of one hypothesis could mean nothing without evidence of the likelihood of the alternative…
Counsel for the Applicant in Lang cited the UK case of R v Clark.[2] When I noticed that name I was reminded of another example of how statistics can prove to be extremely dangerous in the jury room. It is here I must again digress. True to my clichéd middle-aged white male existence, I am now quite interested in podcasts. It was during an episode of They Walk Among Us, a fantastic podcast focusing on UK criminal justice, that I was first exposed to the harrowing story of Sally Clark.
In 1999 Sally Clark was convicted of the murder of her two infant sons. The first had lived for 2 months before being found unresponsive. At the time she was not charged with this child’s death as it was ruled the death was the result of a SIDs related illness. The second child, born the following year, tragically also passed away at a similar age. This time the expert opinion was that the child had died as a result of being shaken. The same expert re-examined the death of the first child and made new findings, ultimately resulting in the Mother being charged and later convicted of the murder of her children.
Vital to those convictions was the use of statistics. For example, at trial one expert suggested the likelihood of two children from the same family passing away due to SIDs was “1 in 73 million’. With such a statistic being front and centre in the minds of the jury it was perhaps unsurprising that Ms Clark was convicted.
It was therefore not without a healthy dose of irony that, after spending more than 2 years in jail, science –which had played a pivotal role in her conviction- came to Ms Clark’s rescue. It turned out that scientific evidence had existed at the time of the original trial which provided a compelling basis to suggest the deaths were as a result of an infection, rather than by an overt act of the Mother. Problem was, this evidence was not disclosed to the defence and their experts.
More importantly for present purposes the Court of Appeal also found that the use of statistics in the conviction of Ms Clark were ‘misleading’, ‘irrelevant’ and dangerous.
The Appeal was upheld and to their credit, the Crown did not seek a retrial. The case would go on to have profound effects on the way SIDs deaths were investigated in the United Kingdom.
The Takeaway
Statistics are powerful.
When either side of the bar table seeks to rely on them great care should be taken in questioning their underlying presumptions, the data upon which they rely and, most importantly, whether they are in fact probative in the case.
Both Lang and Clark demonstrate that even if statistics are accurate, they have the power to distract the jury to the point of appellable error. It would seem then that if there is any doubt about the probative nature of a statistic it is best that it not be put before the jury.
Statistics then, it seems, can be misleading. Much like a Law & Order episode they can be enticing at first blush but, upon closer inspection, may not stand up to scrutiny.
******
Remy Kurz
24 January 2020
The views of this author are his own and do not necessarily reflect the views of Robertson O’Gorman
Police Discipline Reforms
The Police Discipline Reforms which have just passed the Queensland Parliament deal with justified Police Union concerns about unacceptable delays in finalising the investigation of complaints against police but does nothing to address public dissatisfaction with the fact that most complaints against police in Queensland are still investigated by the police themselves.
In introducing the Police Discipline Reform Bill in early 2019 Police Minister Mark Ryan said that there is a lack of police officer and public confidence in the current discipline system.
The Police Service Discipline Reform Bill was described at the time of the introduction of the Bill into Queensland Parliament as the first major reform of Queensland police discipline since 1990. The 1990 changes reflected recommendations made by the Fitzgerald Report which reported in 1989 as to changes that were needed with police discipline.
The Discipline Reform Bill particularly addressed legitimate complaints that the Police Union have had for some time as to the unacceptable delays in complaints against police being finalised and the unnecessary negative consequences suffered by police as a result of those long delays.
The basic Queensland model of investigating complaints against police however remains flawed.
The Police Reform Bill deals only with the lack of officer confidence but does nothing to address the lack of public confidence in the Queensland Police discipline system. The Fitzgerald Enquiry recommended the implementation of a (then) new Police discipline and complaints model and the Criminal Justice Commission in 1990 established a completely new system of investigating complaints against police where most complaints were investigated by the then Criminal Justice Commission which was the earliest name of what is now called the Crime and Corruption Commission.
It was essentially the Fitzgerald model that most complaints against police should be investigated by a separate agency and that was put into effect by the establishment of the Criminal Justice Commission. However, over time, the Criminal Justice Commission which was later known as the Crime and Misconduct Commission and now the Crime and Corruption Commission has morphed into a super police force using permanent standing Royal Commission powers to investigate organised crime.
While the Crime and Corruption Commission can assume responsibility for and take over an investigation into police misconduct, from what is available in the Crime and Corruption Commission annual reports, there is very little evidence that that happens very often.
An example of the conflicted role of the Crime and Corruption Commission in respect of its organised crime fighting arm and its supervision of police misconduct role is contained in the most recent report of the Crime and Corruption Commission.
The most recent 2018 – 2019 Crime and Corruption Commission Annual Report focuses heavily on the Crime and Corruption Commission’s role in investigating crime and corruption but devotes only a very small part of its report to excessive use of force by the police which was a topic addressed with greater prominence in the last two annual reports.
Indeed, disappointingly, the most recent Crime and Corruption Commission annual report states:-
“As we have noticed a decrease in allegations, excessive use of force will no longer be a primary area of focus in 2019 – 2020.”
Therefore, while the legitimate complaints of the Police Union about unfair and excessive delays experienced by police in having complaints against them finalised has been addressed in the Discipline Reform Bill the public concerns that most complaints against police are still investigated by police themselves with limited oversight by the Crime and Corruption Commission remains an ongoing problem.
The rise of the addendum- Tactical considerations in applying to Cross examine witnesses in committal proceedings
In 2010 the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act amended the Justices Act by removing cross examination as a matter of right in committal proceedings in Queensland.
Driven by the Moynihan Report[1], which called for a ‘more focused, streamlined effective committal process’, Queensland adopted the New South Wales system which requires a multiple step process to be completed before a witness may be cross examined in committal proceedings.
This process is initiated by the defence providing to the prosecution a ‘defence communication’ pursuant to section 110B(3)(a) of the Justices Act, which outlines the witness sought to be questioned, the general topics of questioning and the reasons to be relied on for that questioning. The prosecution then have the opportunity to consent to the questioning of the identified witness and the topics outlined. In the event of a refusal an application can then be made to the Magistrates Court to determine whether the witness can be cross examined and on what topics may form part of that examination.
Anecdotally, most practitioners report the starting position of the Prosecution is to refuse any request to cross examine witnesses. This can vary depending on the prosecuting body but, generally speaking, I have found that Police Prosecutions (who often retain carriage of indictable offences until committal in regional areas) are less inclined to consent than their DPP counterparts.
Since the roll out of these reforms the consistent approach from the Prosecution has been to address, where possible, the identified topics of cross examination by obtaining an addendum statement from the relevant witness. By taking this route the Prosecution figure that any ambiguity can be resolved without the need for the witness to be cross examined.
For those on the left hand side of the bar table this has led to much exasperation. Experienced practitioners are aware that the silences in the original statement may not be a simple case of inattention. Those silences may betray weaknesses in the prosecution case, inconsistencies between witnesses, or matters which may affect the credit of the statement writer. To seek an addendum to address these problems is akin to allowing the Prosecution to have a second bite at the evidence gathering cherry.
For these reasons some practitioners believe there is little utility in applying to cross examine witnesses. To do so may disclose your case theory or even subvert your client’s right to silence.
The problem with this approach is that it inevitably opens the defendant up to surprise at trial when the areas which required further scrutiny are finally put to a witness. Further, the more esoteric benefits derived from cross examination, such as an assessment of the witness’ demeanor and candour, are also foregone.
The middle ground regularly adopted by the defence is to request, on the face of the ‘defence communication’, that the contents of the communication not be disclosed to any prosecution witness. In addition and in response to the common practice outlined above, a request is often made specifically asking that no further addendum statement be obtained.
In the recent Supreme Court decision of Agnew v Thacker and Commissioner of Police[2]these requests were put under the microscope. Agnew had applied to cross examine witnesses and his lawyers had requested that the contents of the defence communication not be disclosed to prosecution witnesses and that no further statements be obtained. The Police went and took them anyway and, ultimately, the application to cross examine witnesses was refused.
Holmes CJ, in an overarching discussion about the lack of ownership in witnesses, found that “there was no legal basis for the applicant to place limits on the use of the information”.[3] With one fell swoop the Prosecution penchant for addendum statements has been validated. The Court found there was nothing inherently wrong with the provision of addendum statements in these circumstances and suggested the disclosure of a defence via a defence communication was similar to the disclosure required when relying on alibi or expert evidence.[4]
While it would be improper for a prosecutor to forewarn a witness about what evidence will be challenged under cross examination during a trial, it now seems permissible to allow for the same information to be provided to the witness prior to committal in the interests of ‘streamlining’ the committal process. This is a concerning development.
Where does that leave the defence? The starting point is that we must assume that the Prosecution will disclose the contents of any defence communication with Crown witnesses. That means that extreme care must be taken in the drafting of the defence communication. Should the communication disclose too much detail of the proposed defence there is a real risk that the witness, who previously may have had cause to doubt their recollection when challenged, may tailor their evidence to address the concerns raised in the communication.
Moving forward greater forensic attention will required when drafting the defence communication. It will be imperative to explain the potential impact on a client’s trial prospects should they pursue cross examination at committal. On a practical level it may be beneficial to craft the communication with recourse only to the prosecution evidence, rather than running the risk that your client’s instructions percolate into and inform the communication. Finally, there is great merit in either engaging or at least consulting with your likely trial counsel prior to the provision of the communication. The forensic decisions surrounding this communication will impact how the trial is conducted and having counsel’s input at this early juncture will ensure consistency of tactical approach.
[1] Titled ‘Review of the civil and criminal justice system in Queensland’
[2] [2019] QSC 161
[3] Ibid, [41]
[4] Ibid, [34]
Blue Card laws: Is ‘exceptional’ the new normal?
In Queensland those who wish to work with, or foster, children must have a Blue Card. A Blue Card is required even if this ‘work’ is undertaken on a voluntary basis.
Obvious Applicants include those who work in education and childcare but also include sports coaches and administrators. Similar schemes are in place across the country.
When assessing the Applicant’s suitability the government agency responsible, Blue Card Services, considers the applicant’s previous criminal history (broadly defined[1]) and other matters they deem to be relevant (such as known mental health issues).
The whole process is governed by the Working with Children (Risk Management and Screening) Act[2]. This act, quite properly, acknowledges that applicants with a criminal history should not, due to that reason alone, be excluded from holding a Blue Card.
Central to the safeguards within the Act are a list of ‘disqualifying’ offences[3]. These offences are, as you would expect, largely offences against children. Convictions for these offences disqualify a person from receiving or holding a Blue Card. A tier below disqualifying offences are ‘serious[4]’ offences. If convicted of a serious offence there is a presumption against the grant of a Blue Card placing a reverse onus on the applicant.[5]
Unsurprisingly the demarcation of serious and disqualifying offences contemplates a nexus between prior offending against children and the potential of placing children at risk in the future.
Those who have not been convicted of such an offence, irrespective of their other criminal history, are, prima facie, entitled to a Blue Card. This common sense approach strikes the correct balance between protecting children on the one hand and the rehabilitation of the offender on the other.
In the wake of the tragic murder of foster child Tialeigh Palmer, the Queensland Government announced a Review of the Blue Card System. That review led to 81 recommendations and, perhaps more pertinently for the average applicant, ushered in a new era of increased scrutiny. This increased scrutiny has created a tension between the wording of the Act and its implementation.
The issue which has arisen, post Tialeigh Palmer, is the use of s221(2) which reads:
(2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [6]
It is this discretion vested in Blue Card Services which is contributing to huge delays, unjust outcomes and the issuing of more negative notices. Put simply, the bar for ‘exceptional case’ seems to be lowering at an alarming rate.
In the recent decision of FLS v Directional General, Department of Justice and Attorney-General[7] Member Pennell summarized[8] how QCAT has considered the concept of an ‘exceptional case’ (citations omitted):
Whether the circumstances of a person’s case would render it an exceptional case is the threshold to be applied when the tribunal is deciding whether an applicant should be issued with a positive notice. In applying that principle, regard must be given to the intent, purpose and design of the legislation. The tribunal need only weigh up the competing facts and apply the balance of probabilities principle.
Although the term “exceptional case” is not defined in the Working with Children Act, the phrase has been the subject of many previous discussions in a variety of jurisdictions, including the tribunal’s own appeal jurisdiction. An exceptional case is a question of fact and degree to be decided in each individual case and is a matter of discretion.
In exercising that discretion and deciding whether an exceptional case exists, the tribunal is required to bear in mind the gravity of the consequences involved if a positive notice and blue card were to be issued. Guidance has previously been provided to the tribunal that it would be most unwise to lay down any general rule about what an exceptional case is because all of these matters are matters of discretion11 and each case should be considered on its own facts.
Having regard to the relevant discussions on the term exceptional case, if the respondent decides that a case is exceptional because of the applicant’s criminal history, or because of an event that occurred involving that person, then justification may exist if the decision and refusal to issue a positive notice and blue card was made in the best interests of children.
The Member’s comments demonstrate that arbitrary consideration of what may constitute ‘exceptional’ is unhelpful. What is most important is that that the exceptional nature of the case be inextricably linked to the best interests of children. It is this issue which is being unreasonably expanded leaving many applicant’s stranded.
This is perhaps aptly demonstrated by two cases I have been involved with in the past few years. Other practitioners and Applicants have shared with me their frustration about many other such examples.
In one instance my client was found guilty of assault occasioning bodily harm assault in the Magistrates Court. He had been charged with choking and, when the evidence did not support that charge, it was downgraded. The defendant was placed on probation for 9 months and no conviction was recorded. There was never any suggestion that children were placed at harm during the offending. The defendant had no previous criminal history.
Blue Card Services obtained their information relating to an Applicant’s criminal history from Police. In this case they would have seen that he was charged with the offence of choking and accessed the summary of allegations drafted by Police (which ultimately formed no part of the sentencing basis). Acting on that misleading, preliminary and untested information, they deemed my client to be an exceptional case. They did not seek out the sentencing remarks, which would have shown the proper sentencing basis. They did not seek out the exhibits to the proceedings, which included a psychological report which spoke of a low risk of re-offending. Instead, he was issued a negative notice and forced to apply to QCAT to appeal this decision. He is currently mired in that process.
In another case[9] my client unlawfully disclosed information she obtained in a coercive hearing. She pleaded guilty and was fined, no conviction was recorded. That coercive hearing related to the investigation of the death of a child. There was no suggestion that she was personally involved in harming the child. The offence was not a disqualifying or serious under the legislation. She had no criminal history and was issued a negative notice.
In that case the Applicant had worked in allied care for many years. More than 2 years had passed since she had been found guilty of the offence and more than 4 years since the offence took place. Throughout that period she had received ongoing counselling from both a psychologist and a psychiatrist. She had gone to the trouble of unsuccessfully applying for the removal of the negative notice already and spent a small fortune on reports, treatment and legal fees.
Despite all of this, Blue Card Services still wanted to torture the definition of ‘exceptional’. This was concerning in two aspects. Firstly, it suggested that even the most abstract involvement of a child engaged the ‘exceptional’ clause and secondly, it suggested that someone who had been truly committed to addressing underlying issues which contributed to their offending was given no discernable credit for those efforts.
Fortunately in that case QCAT overturned Blue Card’s decision paving the way for the issuing of a positive notice. While this provides some cold comfort, there are questions which still need to be asked: How many are in the position to pay a lawyer and a psychologist to appear and increase their chances of success? How many will be disadvantaged by being opposed to a trained lawyer who specializes in appearing in the QCAT jurisdiction? How many job opportunities have been missed by those without the ability to challenge a negative notice? How many will have career paths closed to them on the basis that their non-disqualifying or serious offending is deemed ‘exceptional’?
Blue Card Services are reacting to the increased scrutiny on their system in the wake of some well documented tragedies. That, in itself, is understandable. However, if it were truly the legislature’s intention to make it this difficult to obtain a Blue Card the presumption in favour of a Blue Card would have been dispensed with. As it has not been we are seeing an increased reliance on a case being deemed ‘exceptional’ which, in of itself, devalues that very standard. Reform may be needed to re-balance the playing field in line with the legislature’s intention.
[1] Including where the charges have been discontinued, or sentencing facts have been significantly altered;
[2] Henceforth ‘the Act’
[3] See schedule 4 & 5 of the Act
[4] See section 167 and schedules 2 & 3 of the Act
[5] Section 225 of the Act
[6] My emphasis
[7] [2019] QCAT 5
[8] At [7] – [10]
[9] See published decision: https://archive.sclqld.org.au/qjudgment/2017/QCAT17-411.pdf
Queensland Human Rights Commission
The Queensland Human Rights Commission, created by the Human Rights Act 2019 (Qld), will commence from 1 July 2019 by changing the name and expanding the functions of the pre-existing Anti-Discrimination Commission Queensland (ADCQ).
The ADCQ has the power to handle complaints made under the Anti-Discrimination Act 1991 and provide training. From 1 July, these powers will extend to cover complaints and training relating to the Human Rights Act 2019.
Making a Complaint to the Queensland Human Rights Commission
Complaints must relate to acts occurring on or after 1 July 2019. A complaint must relate to an alleged breach of section 58(1), stating that a public entity has:
- acted or made a decision in a way that is not compatible with human rights; or
- in making a decision, failed to give proper consideration to a human right relevant to the decision
Before a person or entity can make a complaint they must make a complaint to the public entity itself, to be managed under their complaints process. If, after 45 business days, there has been no response or an inadequate response a complaint may be made to the Queensland Human Rights Commission. A complaint must be made in writing within one year of the alleged human rights contravention, stating the complainant’s name and address.
The Queensland Human Rights Commission will provide a dispute resolution process for handling human rights complaints, namely conciliation conferences. The obligations and dispute resolution functions are expected to start from 1 January 2020.
The Commissioner must refuse to deal with a human rights complaint if the Commissioner considers the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance. It may also determine the complaint has already been dealt with by another entity, or could more appropriately be referred to another entity. In these circumstances, the complaint lapses and a further complaint cannot be made.
Other functions of the Queensland Human Rights Commission
- if asked by the Attorney-General, to review the effect of Acts, statutory instruments and the common law on human rights and give the Attorney-General a written report about the outcome of the review;
- to review public entities’ policies, programs, procedures, practices and services in relation to their compatibility with human rights;
- to promote an understanding and acceptance, and public discussion, of human rights and the HR Act in Queensland;
- to make information about human rights available to the community;
- to provide education about human rights and the HR Act;
- to assist the Attorney-General in reviews of the HR Act under clauses 95 and 96 (review of the HRs Act);
- to advise the Attorney-General about matters relevant to the operation of the HR Act;
- another function conferred on the Commission under the HR Act or another Act.
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every week!
Human Rights Act 2019 (Qld) – Freedom of Expression and Freedom of Assembly
These rights are closely related as they both provide for a person’s personal liberty of thought, speech and movement which is essential in realising other fundamental rights such as:
- the right to self-determination
- the right to freedom of thought, conscience and religion or belief
- the right to a fair hearing
- the right to take part in public life
- the right to liberty
They are relevant to the liability of a defendant, as well as their rights during proceedings and once sentenced.
Freedom of Expression
Section 21 of the Act provides for the right to freedom of expression, stating every person has the right to hold an opinion without interference. This is considered a fundamental component of an individual’s privacy, requiring absolute protection without external interference. Section 21 also upholds the right to seek, receive and impart information and ideas orally, in writing, in print, by way of art, or in another medium, within or outside of Queensland.
Victorian precedents hold that this right is subordinate to the right to a fair trial. That is, freedom of media expression may be temporarily curtailed if this is necessary to ensure a fair trial.
In other jurisdictions defendants have sought to invoke their right to freedom of expression as a defence to criminal charges against them. For example, in the Victorian case Magee v Delaney (2012) 39 VR 50 a defendant charged with willful damage for painting over an advertisement claimed he did so under his right to freedom of expression to express his disagreement with commercial advertising. However, the court rejected this line of argument, stating the right does not extend to criminal acts. Another Victorian case, Fraser v Walker [2015] VCC 1911, also found the right is not a defence to charges such as obscene, indecent or threatening language.
The right to freedom of expression has been relied on in other jurisdictions to ensure prisoners’ rights are upheld in custody. For example, in Haigh v Ryan [2018] VSC 474 a refusal to allow a prisoner access to tarot cards was found to breach this right, and such the court overturned the prison administration’s decision. Freedom of expression can only be restricted for protection of national security, public order, public health or public morality, none of which were at risk in this case.
Freedom of Association
Section 22 provides for the right of peaceful assembly and freedom of association. This provision protects the right of citizen’s to meet, join and form groups. It covers both the preparing for and conducting of the assembly by the organisers and the participation in the assembly. While it is important for political purposes and trade unions, it extends to all forms of association with others. It includes the freedom to choose between existing organisations and form new ones.
Not every assembly of individuals is protected by this right. For example, consorting laws limit the freedom of association of offender’s involved in organised crime by making it an offence for them to associate or communicate with certain people, or attend at a certain place. This predominantly occurs under control orders issued pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) with the aim of protecting the public by disrupting individual’s involvement in criminal activity. The explanatory notes of the Act say curtailing the freedom of association for this reason is a justified breach of the right, and that there are exceptions which appropriately allow members to participate in ordinary civic life.
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!
Human Rights Act 2019 (Qld): Humane treatment when deprived of liberty
The Human Rights Act 2019 (Qld) establishes in domestic legislation the right of people deprived of liberty, that is people in custody or otherwise detained, to be treated with humanity, respect and the inherent dignity of the human person. This right enshrines a minimum standard of treatment for people in custody, explaining that a person’s rights should only be curtailed to the extent necessary for their confinement.[1] This right applies to those detained for criminal purposes, as well as people in custody for mental health or immigration purposes. This concept will have different consequences at each stage of the criminal process, as is explored below.
Rights of People Detained without Charge
The Act specifically states that those detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary. This applies to a person who has been arrested and detained for questioning about a serious offence, but has not been charged with any offence. Generally, police can only detain a person for 8 hours without charge, questioning them for up to 4 hours. It also states they must be treated in a way that is appropriate for a person who has not been charged nor convicted. This accords with one of the fundamental aspects of our criminal justice system, that a person is innocent until proven guilty, and as such should be treated this way.
Rights in Custody
As well as ensuring prisoners are not subject to torture, cruelty or other serious forms of abuse, this right extends to lesser forms of mistreatment ensuring a person in custody can not be:
- Refused necessary medical treatment; and
- Unreasonably denied reading and radio facilities; and
- Confined to their cell for an unreasonably long period; and
- Subjected to unreasonable restrictions on correspondence with relatives; and
- Held in ‘incommunicado’ detention’. This means denied any contact with the outside world such as family, friends, or lawyers in a situation where they can only communicate with guards or co-detainees.
A case pertaining to the Human Rights Act 2004 (ACT) provisions regarding humane treatment in custody held this may even extend the right to work to prisoners where it would foster their rehabilitation and support their wellbeing. In this case it applied to allow a prisoner a position tutoring other prisoners. However, the court is reluctant to declare the right of prisoners to work generally, confining it to particular cases and jobs.[2]
Rights in the Court Room
When appearing in court at trial or sentence, offenders are deprived of their liberty. Another ACT case established the right extended to the court room, commenting on the rudeness with which a Magistrate had treated the offender in a previous hearing. The court stated that even where the offender had committed a serious offence of which they rightly disapprove, judicial officers are to act with courtesy and respect, particularly when a sentence of imprisonment is imposed.[3] This is because the criminal justice system must at all times recognise a person’s inherent dignity as a human and treat them accordingly.
Effect on Sentences
This right impacts sentences relating to prisoners whose circumstances mean the conditions of prison will be particularly harsh on them, resulting in shorter custodial sentences. A common example is prisoners who are elderly. A Victorian case established that this principle also extends to people suffering a serious psychiatric illness, in circumstances where the custodial environment is likely to result in the continuation or deterioration of this condition. The rationale for this is to allow imprisonment of such a person would be to deny their humanity.[4] Another Victorian case stated the fact that a prisoner is likely to serve their sentence in protective custody, and as such in more isolation than a prisoner normally would, is also a relevant sentencing factor if it can be demonstrated this would be more onerous on them than a sentence served in mainstream custody.[5]
Custody of Children
Children are only imprisoned as a last resort. In these cases, the court in Victoria stated it is not appropriate for prisoners serving sentences to be detained alongside those in remand.[6] While none of the following have conclusively been ruled out, the court has drawn attention to the following practices as likely to raise questions regarding the right to human treatment in custody:[7]
- Solitary confinement, especially for long periods; and
- Strip searches; and
- Being shackled, including with hand cuffs; and
The use of extendable batons and capsicum spray has been ruled as unlawful in Victoria as it violates this right.[8]
All persons facing the criminal justice system deserve to have their rights fully protected. This includes not only during the trial process but also during any period of imprisonment that may be imposed upon conviction and sentence.
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!
[1] Human Rights Bill 2018 (Qld) Explanatory Notes, clause 30, page 24-25.
[2] Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4.
[3] Moh v Pine [2010] ACTSC 27.
[4] R v Kent [2009] VSC 375.
[5] R v Bangard (2005) 13 VR 146.
[6] Application for Bail for H L (No 2) [2017] VSC 1.
[7] Dale v Director of Public Prosecutions [2009]VSCA 212; Certain Children by the Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796.
[8] Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.