Cross Applications in DV Proceedings – A Changing Landscape by Dan Rogers

Cross Applications in DV Proceedings – A Changing Landscape

 

In Queensland a respondent to an application for a Domestic Violence Order (‘DVO’) may choose to bring a Cross Application which involves the respondent bringing their own application for a DVO against the applicant of the original application.

 

The decision to make a cross application in domestic violence proceedings has always been one which should not be made without significant consideration. In the past parties have had to be aware of and consider:

 

  • The high emotional and financial costs involved in such an application;
  • The risk of validating the original application;
  • Potential loss of the moral high ground;
  • An increase in forensic complexity; and
  • A chance to lose the ability to obtain costs.

 

Recent amendments to the Domestic and Family Violence Protection Act 2012 require even greater caution when considering a cross application.

 

The New Singular Order Scheme

 

Under the amended Act, applications and cross applications must now be heard together. This additionally applies for applications and cross applications to vary DVO’s.

 

Most significantly, the Act has been amended to provide that only one protection order should be in place unless there are ‘exceptional circumstances’.

 

Courts must now identify, when assessing an application and cross application together, the person who is ‘most in need of protection in the context of the relationship as a whole’. It is this person ‘most in need of protection’ who should have their application for an order accepted and made.

 

In deciding the person ‘most in need of protection’ the court must consider the following factors:

 

  • The history of the relationship and domestic violence between the parties.
  • The nature and severity of the harm caused to each other.
  • The level of fear experienced by each person because of the other’s behaviour.
  • Which person has the capacity to (i) seriously harm the other; or (ii) to control or dominate the other and cause them to fear their safety or wellbeing (or that of their child, another person or an animal).
  • Whether the parties have characteristics that may make them particularly vulnerable to domestic violence.
    • Examples given by the act include: women; children; Aboriginal peoples and Torres Strait Islander peoples; peoples from a culturally or linguistically diverse background people with disability; people who are lesbian, gay, bisexual, transgender or intersex; and elderly people.

 

As stated previously, the Court is now only allowed to make one order to protect the person who is identified as ‘most in need of protection’, unless in the case of exceptional circumstances. The amended Act considers exceptional circumstances to occur where there is ‘clear evidence that each person is in need of protection from the other’.

 

Effect on Current Orders

 

Notable among the amendments is the insertion of section s41G(2)(d) which states that:

 

(2) The Court must decide-

(d) if the other application is an application for the variation of a protection order – to vary the order by reducing its duration so that the order ends.

 

This is notable as a reading of this provision would indicate that if a circumstance existed where two people had domestic violence orders on each other, and an application and a cross application to vary were made, one side would, outside of exceptional circumstances, see their protection order ended.

 

Potential for Cost Orders

 

The newly amended Act additionally now enables the Court to make a costs order against an applicant or cross-applicant whose application has been dismissed, where the application itself is considered, by the Court, to be part of a behaviour constituting Domestic Violence. This potential for a cross-application to attract a unfavourable costs order is an additional important consideration which must now be considered before making a cross application.

 

Conclusion

 

In conclusion, this new protection order system has again significantly changed the landscape in regards to cross-applications. It is now, more than ever, important to obtain legal advice before making a cross application. A misguided cross application is likely to fail, will strengthen the original application and even lead to cost orders being made.

 

Robertson O’Gorman Solicitors provide expert advice and representation to both Applicants and Respondents in domestic violence proceedings. Our criminal defence background also enables us to carefully monitor and safeguard against the risks of police investigations or criminal prosecutions arising from these proceedings.

by Dan Rogers

Queensland Sentencing Advisory Council’s review of the SVO Scheme by Dan Rogers

Queensland Sentencing Advisory Council’s review of the SVO Scheme

 

Earlier this month, the Queensland Sentencing Advisory Council (QSAC) released their report reviewing the Serious Violent Offender (SVO) scheme.

 

With respect to certain violent, sexual and drug offences, the scheme imposes a mandatory non-parole period of 80% of any sentence over 10 years and a discretionary power with respect to 5 to 10 year sentences. The QSCA review showed that case law demonstrated that this 80% rule was resulting in overly narrow approaches to sentencing, which failed to consider all relevant factors. Further, the scheme’s attempts to protect the community overlooked the importance of supervised parole for community reintegration.

 

As part of its review process QSAC met with various stakeholders and received vital contributions from victims who courageously shared their stories and experiences with the scheme; legal professionals and government organisations who participated in interviews and consultations and made written submissions; and other stakeholders who lent their time and expertise.

 

The scope of the review was to consider how the scheme is currently applied, its impact on court sentencing practices, and whether it creates any inconsistencies or constrains the sentencing process.

 

Through consultation, data and case law analysis and consideration of the research evidence, the Council learnt that the SVO scheme and schemes like it in other States and Territories fulfil an important function in the sentencing process.

 

“They formally recognise the harm caused by serious forms of offending by requiring a significant proportion of the sentence to be served in custody prior to parole eligibility. When an SVO declaration is made, we were told by victims and victim support organisations that it greatly contributes to victims’ satisfaction with the sentencing outcome, thereby contributing to victim and public confidence in sentencing.”

 

However, it also became clear that the current SVO scheme is not fully meeting its intended objectives and as a result the Council recommended reform.

 

“We found strong evidence that the scheme is constraining the sentencing process and is too restrictive on judicial discretion. The scheme was referred to, by those working with it on a regular basis, as arbitrary and blunt, as distorting sentencing practices, adding unnecessary complexity to sentencing, and as severely curtailing judges’ discretion.”

 

In addition, the Council also considered the importance of post-release supervision on parole and found that there were relatively short periods of time some offenders were subject to parole after serving their non-parole periods. It considered the evidence on the importance of parole for community safety and said:

 

“It is in the interest of community safety for serious offenders who have spent a significant amount of time in prison to be supervised in the community upon their release and to serve a longer, rather than shorter period under supervision.”

 

Recommendations

 

The report proposes a wholly presumptive model rather than the current mandatory and discretionary application. This would require courts to make a declaration except where it would not be in the interests of justice to do so. The proposed reforms would allow judges to consider individual circumstances to set parole eligibility within a range of 50-80% of a sentence.

 

Further key recommendations contained in the report include:

 

  • creation of a new, separate schedule of offences that would apply to the scheme
  • the new schedule include offences such as child exploitation material, choking, suffocation or strangulation in a domestic setting, and female genital mutilation
  • other, less serious offences be removed from the new scheme
  • keeping serious drug offences sentenced to 10 years and more in the scheme to recognise the serious harm these offences cause to the community. This threshold is higher than the five-year threshold for offences involving sexual violence and non-sexual violence to recognise differences in the risk these offenders pose to the community.
  • changing the name to the ‘serious offences scheme’ to better reflect that not all serious offences included in the scheme are violent, for instance, serious drug offences.

 

In total 26 recommendations were made to the Queensland Government as part of the Council’s report.

 

Dan Rogers, Legal Director at Robertson O’Gorman Solicitors is a member of QSAC and project sponsor in relation to this project.

 

by Dan Rogers

Restorative Justice Series – Part 2. Juvenile Sentencing Principles

Restorative Justice Series – Part 2. Juvenile Sentencing Principles

The first instalment in this series contextualised the series, discussing the current youth justice framework and recent developments. Relevantly, the Charter of Youth Justice Principles (as contained in the Youth Justice Act 1992 (Qld)) highlights that rehabilitation and preventing the institutionalisation of children in the criminal justice system is central to youth justice.

This blog will delve deeper into juvenile sentencing principles and sentencing options. The breadth of available sentencing options for courts is an indication that at the centre of juvenile sentencing is the concept of ‘individualised justice’. Moreover, that rehabilitation and diversion from the criminal justice system is paramount.

 

Criminal responsibility

Under the Queensland Criminal Code, there are limitations for when children can be held legally responsible for committing an offence. Children under 10 years old are not criminally responsible for any act or omission.[1] Children under 14 years old can only be criminally responsible if the prosecution can demonstrate the child had the capacity to know that their conduct was wrong.[2] Recently, there have been calls to raise the age of criminal responsibility.[3]

Where a child is found guilty of committing an offence, the Youth Justice Act 1992 (Qld) (Youth Justice Act) provides guidance regarding the sentencing of a child. It operates in relation to all children under 18 years of age. Prior to 12 February 2018, 17 year olds were treated as adults. However, this was reformed to bring Queensland in line with the rest of Australia and indeed, Australia’s international obligations.

If a person has turned 18 or 19 at the time of being charged or sentenced for an offence committed when they were 18, they will be dealt with in either the Children’s Court (as a child) or the Magistrates Court (as an adult) in accordance with the Youth Justice Act.[4] Regardless, both courts must always have regard to the fact that the person was a child when the offence was committed, and hence the sentence cannot be greater than what the offender would have received if punished as a child. This is especially in relation to imprisonment, fines, and compensation and restitution.[5]

In addition to the important provisions of the Youth Justice Act, the general sentencing principles that apply to the sentencing of adult offenders also applies to children.[6] However, the Youth Justice Act requires that the Charter of Youth Justice Principles contained in the Act be considered when sentencing.[7] The Act further provides the following special considerations when sentencing:[8]

  • That a child’s age is a mitigating factor in determining whether to impose a penalty, and the nature of the penalty imposed
  • A non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community
  • The rehabilitation of a child found guilty of an offence is greatly assisted by the child’s family and opportunities to engage in educational programs and employment
  • A child should not receive a more severe sentence because of a lack of family support or opportunities to engage in educational programs and employment
  • A detention order should be imposed only as a last resort and for the shortest appropriate period

 

Sentencing principles - diversion

The court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing, regardless of whether the child pleads guilty or not guilty.[9] This mirrors Principle 5 of the Charter of Youth Justice Principles contained in the Youth Justice Act.

Note that prior to a court dealing with the matter, there are a variety of diversionary options available to the police that adhere to Principle 5 above, such as the following examples:

  • Administering a caution – where the police officer explains to them what they have done wrong, and may involve an apology to the victim
  • Graffiti removal program – for children aged 12 and above
  • Police drug diversion assessment program – for children found in possession of a small amount of cannabis or a thing used for smoking cannabis
  • Releasing the child at a place of safety
  • Restorative justice process – this will be discussed in Blog 3
  • Infringement notice – where an adult chooses to pay a fine instead of going to court

In all the above, save for certain examples of restorative justice processes, any charge against the child is not proceeded with.

Courts also have further options aside from sentencing a child offender should the matter proceed to the court:

  • Dismissal[10] – where the court dismisses a charge (or issues a caution or directs a police officer to do so) despite a plea of guilty, on the basis that the child should have been cautioned or no action should have been taken
  • Court referred drug assessment and education session – where a child pleads guilty and consents and meets the screening criteria, they are referred to a one-on-one session involving an assessment of their drug use, drug education and identification of treatment options. This is available for possession of small amounts of dangerous drugs for personal use, and/or things used in connection with consuming dangerous drugs.

In either proceeding, children are not liable to be further prosecuted for the offence.

 

Non-custodial sentencing orders

If a court determines that a sentencing order option is required, then there is a broad range of options available. The sheer number of non-custodial options available for children demonstrates the importance of early intervention to prevent incarceration and institutionalisation of children in the criminal justice system.

Similar to the adult sentencing regime, child offenders can be sentenced to a good behaviour order,[11] a fine (provided they can afford it),[12] a probation order,[13] a community service order,[14] or an intensive supervision order.[15] The latter three may only be made against a child found guilty of an offence of a type that, if committed by an adult, would make the adult liable to imprisonment.[16]

Additional non-custodial orders that can be made against a child are:

  • Reprimand[17] – where a child is given a formal warning by the court.
  • Restitution and compensation[18] – an order requiring a child (provided they can afford it) to pay for any property taken, pay compensation (capped amount) for loss of property, and/or pay compensation for any personal injury.
  • Restorative justice order[19] – similar to the police referral process above, to be discussed in Blog 3
  • Graffiti removal order[20] – where a child aged at least 12 years old has committed a graffiti offence, the court must make an order requiring the child to remove graffiti for specified periods of time.

The availability of these orders demonstrates that the legislative intention of ensuring appropriate re-integration of children into the community rather than detention. There are two key benefits of these non-custodial orders. First, the orders are aimed at ensuring children understand the consequences of their actions in a tangible and accessible manner, and learn to take responsibility for their actions. Second, the orders have the benefit of ensuring the child continues to receive the guidance and assistance necessary to rectify their behaviour, without the consequences that come with criminal conviction or imprisonment.

Appropriately seeking and ordering non-custodial community-based orders such as those discussed is the best way to ensure the child involved can rehabilitate, but also to protect the community from re-offending in the long term.

Custodial sentencing orders

As discussed above, a detention order is a response of last resort when sentencing not only children, but adults as well. A court cannot make a detention order unless it has considered a pre-sentence report from the Department of Justice and Attorney-General,[21] all other available sentences and the desirability of not holding a child in detention, and is satisfied that no other sentence is appropriate in the circumstances.[22]

The Youth Justice Act also contains various maximum detention periods depending on the level of the sentencing court and seriousness of the offence. Magistrates can only impose detention orders of 1 year or less. Where the offence committed is not punishable by imprisonment of 14 years or more (if committed by an adult), then a judge can only impose detention orders of 2 years or less. If such an offence has been committed, then the maximum imprisonment that can be ordered by a judge is 7 years imprisonment. If the maximum penalty for an adult would have been life imprisonment, then the maximum imprisonment that can be ordered by a judge is 10 years imprisonment.

While these periods of time may seem short in the context of longer maximum penalties in the adult system, it must be remembered that such a period will have significant consequences for children, who are at a critical developmental stage in terms of mental, social and physical wellbeing. It can have a serious impact on the trajectory of their adulthood. That this important period of a child’s life is spent in detention will have serious implications for their development and future, and hence it is an order taken very seriously by the court.

Similar to adults, conditional release and release after a fixed period are both available options to enhance community reintegration.

 

Recording Convictions

A court cannot record a conviction where the child is found guilty and sentenced to a reprimand or a good behaviour bond.[23] However, a court may consider whether to record a conviction in relation to all other sentences,[24] but must have regard to all the circumstances of the case. This includes the:[25]

  • Nature of the offence
  • Child’s age and any previous conviction
  • Impact of recording a conviction on the child’s chances of rehabilitation and finding or retaining employment

In any event, the starting point is that a conviction should not be recorded against a child.

If a child later goes to court as an adult for offences committed as an adult, the court cannot be told about childhood offending where a conviction was not recorded. This furthers the principle of rehabilitation by allowing children to leave behind any childhood offending dealt with in the Children’s Court where convictions were not recorded.

 

Conclusion

Criminal lawyers must be aware of the full range of available diversionary and sentencing options for the court, as well as the underlying principles of reintegration, diversion and rehabilitation within the youth justice framework. While this is important for all clients, it is especially critical where children are involved.

 

The final blog in the series will provide an overview of restorative justice conferences, how they operate and the role they play in youth justice.

[1] Criminal Code 1899 (Qld) s 29(1).

[2] Criminal Code 1899 (Qld) s 29(2).

[3] See https://www.raisetheage.org.au/.

[4] See Youth Justice Act 1992 (Qld) pt 6 div 11 (‘YJ Act’).

[5] YJ Act ss 144(2)-(3).

[6] For a discussion of adult sentencing, visit the Queensland Sentencing Guide at https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0004/572161/queensland-sentencing-guide.pdf.

[7] YJ Act s 150(1)(b).

[8] YJ Act s 150(2).

[9] YJ Act s 162.

[10] YJ Act s 21. A similar process is undertaken where a restorative justice process should have been ordered under s 24A.

[11] YJ Act ss 175(1)(b), 188.

[12] YJ Act ss 175(1)(c), 190.

[13] YJ Act s 175(1)(d).

[14] YJ Act s 175(1)(e).

[15] YJ Act s 175(1)(f).

[16] YJ Act s 175(2).

[17] YJ Act s 175(1)(a).

[18] YJ Act s 181.

[19] YJ Act ss 175(1)(da)-(db).

[20] YJ Act s 176A.

[21] YJ Act s 207.

[22] YJ Act s 208.

[23] YJ Act s 183(2).

[24] YJ Act s 183(3).

[25] YJ Act s 184.

by Dan Rogers

Restorative Justice Series - Part 1. The Context: Youth Justice and the "Youth Crime Crisis"

Restorative justice series – The Context: Youth Justice and the ‘Youth Crime Crisis’

 The Queensland Government passed the Youth Justice and Other Legislation Amendment Act 2021 (Amendment Act) earlier this year in the wake of recent controversies and debate regarding youth justice and the ‘youth crime crisis’.

This blog is the first in a series that looks at restorative justice for child and youth offenders. This first blog will provide some context regarding the current youth justice framework and recent developments. We will look at key statistics regarding youth offending, the reforms introduced by the Amendment Act, and some key youth justice principles already underpinning our legislation.

 The second blog in the series will focus on youth sentencing and its distinctions from adult sentencing.  The final blog will provide an overview of the restorative justice conferences and the role they play in youth justice.

 

Youth Offending – Key Statistics

 By way of background, although rates of young people in detention have been decreasing,[1] there was increased visibility of youth crime – specifically hooning and related incidents – in the last year.

Other important statistics to keep in mind that contextualise these reforms:

  • On an average night in the June quarter 2020, about 2 in 3 (511 or 64%) young people in detention were un-sentenced.[2]
  • Just 11% of youth offenders were considered chronic offenders who engaged in persistent offending behaviour throughout childhood and into adulthood.[3]
  • 48% of young people received into detention during 2019-20 were received more than once.[4]
  • More than half of young people aged 10-17 under youth justice supervision during 2018-19 had received a child protection service in the five years from 1 July 2014 to 30 June 2019.[5]
  • Just under half (48%) of all young people in detention were Aboriginal and Torres Strait Islander young people, demonstrating a significant overrepresentation as Aboriginal and Torres Strait Islander people make up just 6% of the Australian population aged 10-17.[6]

 

Reforms under the Amendment Act

The main objective of the Amendment Act was to address recidivism in youth offenders and ensure community safety.[7] This was done by expanding the tools accessible to police and courts. Importantly, the Amendment Act:

  • Reverses the existing onus in certain circumstances so that a young person charged with a prescribed indictable offence while on bail may be required to show cause as to why they should get bail
  • Allows police and courts making a bail decision to consider an ‘indication of willingness’ by a parent, guardian or other person to provide support to a young person to ensure they comply with bail conditions and advice relevant authorities on any breach of bail conditions
  • Allows courts to mandate GPS electronic monitoring of young people aged 16 and over as a condition of bail
  • Allows police officers to use hand-held scanners without a warrant

To support the new legislation, the Queensland Government are committed to investing $98.4 million for the purpose of:[8]

  • Trialling GPS monitoring devices
  • Expanding joint police and youth justice co-responder strike teams
  • Enhanced intensive supervision of young people on bail
  • Intensive support for families and children on bail, supplied by non-government organisations
  • Additional court and legal advocacy services

 Although these reforms were said to be in line with the Queensland Government’s Youth Justice Strategy 2019-2023, the Queensland Law Society (QLS) and Human Rights Law Centre (HRLC) made submissions as part of the consultation process criticising the amendments.[9] They argued that the reforms were a ‘knee-jerk’ response to recent tragic events in Queensland,[10] and that they were not appropriately adapted to the aim of reducing youth offending.[11] The laws were criticised as disproportionately impacting at risk young people and Aboriginal and Torres Strait Islander young people, without addressing the drivers of youth crime.[12] Early intervention and diversion were emphasised by the QLS and HRLC as appropriate responses to any real or perceived youth crime crisis.[13]

 

Existing youth justice principles – the importance of diversion and rehabilitation

Relevantly, the Charter of Youth Justice Principles contained in the Youth Justice Act 1992 (Qld) (Youth Justice Act) discusses the importance of diversion and rehabilitation of children in a fair, respectful and appropriate manner.[14] Furthermore, there are a number of important principles. For example:

  • Principle 5 states that children should be diverted from the courts’ criminal justice system where possible.
  • Principle 9 states that children who commit an offence should be held accountable and encouraged to accept responsibility, but be given the opportunity to develop in responsible, beneficial and socially acceptable ways. Their need for guidance and assistance must also be recognised.
  • Principle 17 requires a child to be dealt with in a way that allows them to be reintegrated into the community and to continue their education, training or employment without interruption or disturbance, where possible.

These principles highlight that rehabilitation and preventing the institutionalisation of children in the criminal justice system is central to the Youth Justice Act. Sadly, the focus on rehabilitation is often lost in the political debate around youth justice. However, it is reassuring that in line with the Youth Justice Act, one of the four pillars of the Queensland Government’s Youth Justice Strategy 2019-2023 is to keep children out of court.[15] One aspect of this policy position is the usage of restorative justice conferencing instead of court proceedings in dealing with children who have committed crimes.

The role of a defence lawyer is critical for young people caught up in a criminal proceeding. A detailed knowledge of the different sentencing considerations for children and for restorative justice options is vital. This ensures that the child involved has the best chance to rehabilitate. The often overlooked reality is that this is actually what best protects the community from re-offending.

 

 

 

 

[1] Australian Institute of Health and Welfare, Youth detention population in Australia 2020 (Report, 26 February 2021) 6 < https://www.aihw.gov.au/getmedia/37646dc9-dc6f-4259-812d-1b2fc5ad4314/aihw-juv-135.pdf.aspx?inline=true> (‘AIHW Report’).

[2] Ibid 7.

[3] Queensland Treasury, Youth Offending (Research Brief, April 2021) 6 < https://www.qgso.qld.gov.au/issues/10321/youth-offending-april-2021-edn.pdf>.

[4] AIHW Report (n 1) 24.

[5] Australian Institute of Health and Welfare, Youth Justice (Snapshot, 28 May 2021) <https://www.aihw.gov.au/reports/australias-welfare/youth-justice>,

[6] Ibid 10.

[7] Queensland, Hansard (Record of Proceedings), Legislative Assembly, 25 February 2021, 237-240 (Mark Ryan, Minister for Police and Corrective Services and Minister for Fire and Emergency Services); Explanatory Notes, Youth Justice and Other Legislation Amendment Bill 2021 (Qld) 1.

[8] Rachael Knowles, ‘Queensland tightens youth justice laws’, National Indigenous Times (online, 27 April 2021) <https://nit.com.au/queensland-tightens-youth-justice-laws/>.

[9] Human Rights Law Centre, Submission No 44 to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into Youth Justice and Other Legislation Amendment Bill 2021 (March 2021) (‘HRLC Submission’); Queensland Law Society, Submission No 75 to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into Youth Justice and Other Legislation Amendment Bill 2021 (19 March 2021) (‘QLS Submission’).

[10] HRLC Submission (n 9) 4.

[11] QLS Submission (n 9) 1.

[12] Ibid 1-2; HRLC Submission (n 9) 5.

[13] Ibid.

[14] Accessible at https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-044#sch.1.

[15] Accessible at https://www.cyjma.qld.gov.au/resources/dcsyw/youth-justice/reform/strategy.pdf.

by Dan Rogers

Legislating against covercive control: Scotland's Domestic Abuse Act

Legislating against coercive control: Scotland’s Domestic Abuse Act

 The first instalment in this series of blogs discussed The Women’s Safety and Justice Taskforce and their investigation into the criminalisation of coercive control. Their final report and recommendations will be released around October 2021; however, the taskforce’s May 2021 discussions paper highlighted Scotland’s 2018 domestic abuse legislation as a potential example upon which Queensland’s offence could be modelled.

This blog will explain the Scottish approach to coercive control and the potential impacts if a similar provision were introduced in Queensland.

The offence

The Domestic Abuse (Scotland) Act 2018 criminalises a course of abusive behaviour by a perpetrator against their current or former partner if two conditions are met:

  1. a reasonable person would consider that the course of conduct was likely to cause the partner or former partner to suffer physical or psychological harm (the objective limb); and
  2. the perpetrator either intends that the behaviour will cause the partner or former partner psychological harm or is reckless as to whether the course of behaviour causes the partner or former partner to suffer physical or psychological harm (the subjective limb).

The Act includes a non-exhaustive list of violent, threatening or abusive behaviours covered by the offence, which must have as their purpose or be reasonably likely to have the effect of:

  • making the partner dependent on or subordinate to the perpetrator;
  • isolating the partner from friends, relative or other support;
  • controlling, regulating or monitoring the partner’s day to day activities;
  • depriving or restricting the partner of freedom of action; or
  • frightening, humiliating, degrading, or punishing the partner.

The offence is treated as aggravated where the behaviour is directed at a child, takes place where a child can see or hear, adversely affects the child, or if the child is made use of to direct abusive behaviour at the victim.

A reverse onus defence is available to the defendant if it can be shown that the course of behaviour was in fact reasonable in the circumstances.

If convicted of the offence, perpetrators face up to 12 months imprisonment on summary conviction or up to 14 years on indictment. Of the 206 people convicted of the offence in its first year of operation, the most common penalty was a ‘Community Payback Order’. Received by 106 people, these are flexible community based orders including conditions of community service, supervision, payment of compensation, participation in programs or treatment, and conditions as to residence and conduct generally. Given that the goal of criminalising coercive control is to prevent the occurrence of an ‘incident-based’ or violent offence, these orders aim to rehabilitate offenders before their conduct escalates and in so doing, provide community protection. The second most common penalty, for more serious cases of domestic abuse, was imprisonment of an average sentence of around one year.

Policing

 Before coercive control matters even reach a courtroom, the policing of such offences will not be without its challenges in Queensland. Scotland is far ahead of Australia in its broad focus on training for domestic violence. As part of their reforms, $1.48 million AUD was spent to train 14,000 officers to ensure consistency and understanding across the criminal justice system in relation to the new offence. Scotland has also had a long history – over two decades – of domestic violence training across the community to effectively deal with cases and to continue to develop efficient support systems.

Extensive work would be required to ensure consistency in policing when it comes to cases alleging a course of conduct involving psychological, emotional, or financial abuse. Police will need to be able to identify behaviours and collect the right information from alleged victims, witnesses, and the accused. Within Queensland, a high level of funding will be required to deliver effective policing across large geographical distances and Queensland’s diverse cultures, including remote First Nations communities. As coercive control legislation emerges across Australia’s states and territories, consistent terminology will be important to ensure incidents requiring cross-border investigation are based upon the same definitions and understandings of domestic abuse.

The placement of the offence itself must also be considered in relation to policing. Scotland’s creation of a standalone Act would be unusual if adopted in Queensland, and may jeopardise the visibility and perspicuity of the offence. Placing the offence in the Criminal Code Act 1899 (Qld) would highlight the seriousness of this conduct within the broader community as on par with acts of physical abuse. Alternatively, recommendations to place the offence in the Domestic and Family Violence Protection Act would place the offence firmly within the paradigm of domestic and family violence, which may guard against the offence being used outside its intended scope. The offence’s placement may have a noticeable effect on community understanding and policing of coercive control.

Given the lack of community understanding regarding coercive control, the policy objectives must afford fairness to each party; thus the evidentiary thresholds for establishing the offence must be examined closely.

Potential evidential challenges

 Scotland’s offence is intentionally designed to focus on offending conduct rather than harm to the victim. This is deliberate to relieve evidential hurdles that the victim may struggle to overcome. The drafting of such an offence in Queensland must take care to appropriately balance the interests of victims and the rights of alleged offenders.

Several elements of the offence have a relatively low evidential burden – the “course of behaviour” referred to requires only two separate incidents. It is not necessary to prove that either of these incidents caused any actual harm (physical or psychological) to the victim or had any of the relevant listed effects.

Given the broad range of (currently) non-criminal behaviours encompassed by definitions of coercive control, a Queensland offence that would criminalise two incidences that were neither intended to cause or did cause any actual harm may disproportionately affect defendant’s rights.

 In relation to the circumstances of aggravation, no evidence of adverse effects to the child is required, merely that a reasonable person would consider adverse effects to the child to be a likely result of the alleged course of conduct. The Act also stipulates that evidence from a single third-party source is sufficient to prove this aggravation. The protection of children who witness domestic abuse is just as important as the protection of victims themselves; however, the fact that the offence can be aggravated based upon a singular source’s testimony that the child may have been negatively affected, where the child need not even be aware of the alleged behaviour, may be problematic.

Overall, legislating against coercive control presents serious evidential issues – a pattern of abusive behaviour often involves unremarkable acts that are not criminal in isolation and do not leave any evidence. The general lack of third-party witnesses to corroborate testimony also presents issues, and that coercive control behaviours often do not warrant attention or recording in the same way that physical abuse incidents do. Scottish cases to date have had to rely on extensive expert evidence to corroborate statements.

Ultimately, the issue of evidence in coercive control presents a hard balancing act. Drafting an offence that is not too difficult to establish for alleged victims, but also does not unfairly burden defendants will be challenging. While cases with clear intent on the part of the offender and demonstrable harm to the victim present few issues, the outcome of cases with limited evidence or unclear intention remains unpredictable. The prevention of coercive control may remain ineffective if perpetrators are not aware of the likely consequences of their course of conduct, and victims are unable to predict the outcome if they are to report their partner. Ultimately, the law needs to be as clear as possible.

Appropriate sentencing will also need to be carefully considered, given that Scotland’s offence leaves much to judicial discretion. Further work may be required to establish a ‘hierarchy of harms’ in order to sentence appropriately, and how such harm can be evidenced without extensive expert opinion, the evidence of the complainant, or the admission of hearsay. Further research, guidance and training may be required to overcome these issues of evidence and sentencing in drafting Queensland’s offence.

Conclusion

The key area where we can prevent coercive control is within our communities - given its definitional, policing, evidence and sentencing challenges, a focus on research, training and education is required. We must take care to appropriately allocate time and resources to this issue before any legislation is finalised. The consequences of an offence that is not supported with adequately trained police, broader community understanding, and clarified principles of evidence and sentencing cannot be predicted.

by Dan Rogers

Legislating against coercive control: The Women’s Safety and Justice Taskforce

In March 2021, the Queensland Government established The Women’s Safety and Justice Taskforce (‘the Taskforce’) to examine two things:

1. coercive control and review the need for a specific offence of commit domestic violence; and
2. the experience of women across the criminal justice system.

This will be a three-part blog series examining the Taskforce, its legislative background and its objectives.

In the first part we will traverse the background of the taskforce and the meaning behind terms like ‘coercive control’.

Secondly, we will look at the particular options for reform, mapping the pros and cons of each model. As part of their proposed reforms, the taskforce highlighted Scotland’s Domestic Abuse Act as the ‘gold standard’. Introduced in 2018, this legislative scheme created a specific offence of domestic abuse, which covered physical, psychological and emotional behaviours. In the first year of its operation, 246 people were prosecuted for the offence and 206 were convicted (an 84% conviction rate). How such a model could be implemented in Queensland will be explored in more depth in our next instalment.

In the third blog of this series, we will discuss the various recommendations made by the Taskforce, when they eventually arrive at a determination. It is anticipated that a report mapping the various recommendations for a standalone offence of domestic violence will be provided in October 2021 and a report on other areas of women’s experiences in the criminal justice system is anticipated to be released by March 2022.

What is coercive control?

As stated, there are two specific objectives of the Taskforce. One of these objectives is the examination of coercive control measures. However, it is evident that the term itself requires elucidation.

Since the 1970s, a great deal of research, policymaking and legal reform concerning domestic violence has focused on the compelling issue of physical violence in intimate relationships. However, it seems that traditionally, less attention, or at least less visible attention, has been given to non-physical aspects of domestic violence.

Over time this has begun to change, as legal representatives, social support services, and victims themselves have called on governments to recognise non-physical manifestations of domestic and family violence.

It is evident there is no single recognised definition of coercive control; however, it generally includes a pattern of behaviour designed to control another person within a domestic relationship. This often includes nonviolent behaviours such as:

> Gradual isolation from friends, family and support
> Degradation, humiliation and threats
> Gaslighting
> Monitoring of movements
> Control of technology and social media use
> Financial control
> Removing reproductive control
> General micro-management (for example, of what one eats and wears or when they sleep and leave the house)
> Coercive control can also include preventing someone from attending English classes for those who may be culturally and linguistically diverse, the withholding of medication from those with disabilities, and threats of ‘outing’ against LGBTIQA+ victims.

The Taskforce

The Taskforce is headed by the former President of the Queensland Court of Appeal, the Honourable Margaret McMurdo AC, as well as various other senior law and law enforcement professionals within the Queensland community.

Guiding principles and considerations for the Taskforce include ‘keeping victims safe and holding perpetrators to account’ and adopting ‘a trauma-informed, and evidence-based approach that takes into consideration the lived experience of women who are involved in the criminal justice system’. With such principles in mind, the Taskforce will consider any submissions made to it as well as any other evidence before it makes its recommendations to the Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence.

On 27 May 2021 the Taskforce released its first discussion paper which outlined their goals and findings surrounding coercive control.

They highlighted a need to supplement the existing legal system which is comprised only of ‘incident based offences’ rather than offences that recognise the psychological damage of an extended pattern of abuse within a relationship.

Support for victims of coercive control was considered particularly relevant during the period of the COVID-19 pandemic, as victims were forced to co-habit with abusers during lockdown. Some domestic violence and family service providers reported an increase in demand for their services during this period.

Conclusion

A focus on legislating against coercive control has arisen from the view that the legal system fails to contextualise abuse within a relationship over time, and rather focuses on isolated incidents of purely physical violence.

It has also been recognised that coercive control behaviours within a relationship often escalate towards eventual acts of violence or homicide, and therefore, legislating against it is an important step towards preventing such violence from even occurring.

The new Queensland Taskforce aims to tackle this issue through the criminal sphere, rather than the civil one. How it recommends to do this remains to be seen.

 

by Dan Rogers

LEGALWISE PRESENTATION ON AML

Our Principal, Dan Rogers, is an expert in money laundering. Today he drew upon this expertise and presented at the Legalwise seminar, White Collar Crime: The Civil and Criminal Risks. From the outset Dan noted that anti-money laundering obligations apply to a wide variety of professions, not only lawyers.

Traditionally, most professions have not really been too concerned with money laundering, or at least they’ve treated money laundering with some level of apathy. However, considerable attention has been cast upon the issue in recent years, especially in light of a spate of recent prosecutions.

Dan began the presentation by noting what constitutes money laundering. Using the definition contained in the Commonwealth Criminal Code as a framework, it is usually seen to mean ‘dealing with’ money in a way that involves:

    • - receiving, possessing, concealing or disposing of money or other property; or
    • - importing money or other property into, or exporting money or other property from, Australia; and
    • - receiving, possessing and concealing money which is the proceeds of crime, or could become an instrument of crime, in relation to an indictable offence.

In addition to the Commonwealth legislation, each State and Territory has their own similar legislative provisions that create such an offence in one way, shape or form.

This expansive definition reflects the fact that modern clients and their methods of money laundering have become increasingly sophisticated. For example, instead of dumping large bags of cash on your desk, clients may create complicated commercial structures, through which Australian legal practitioners may be used to:

    • - conceal proceeds of crime
    • - obscure ultimate ownership through complex layers and legal entity structures
    • - avoid tax
    • - work around regulatory controls
    • - provide a veneer of legitimacy to criminal activity
    • - create distance between criminal entities and their illicit income or wealth
    • - avoid detection and confiscation of assets
    • - hinder law enforcement investigations.

Most importantly, the majority of jurisdictions recognise that money laundering includes both knowingly dealing with dirty money, as well as recklessly and negligently dealing with such money. For illustration, ‘reckless’ is defined in the legislation as when there could be a ‘substantial risk’ that something could occur and when, considering the circumstances at the time, taking that significant risk is unjustifiable.

In addition to the various criminal offences, the Anti-Money Laundering/Counter-Terrorism Financing Act 2006 (Cth) provides for national framework of anti-money laundering legislation. This Act aims to prevent money laundering and the financing of terrorism by imposing a number of obligations on the financial sector, gambling sector, remittance services, bullion dealers and other professionals or businesses that provide particular ‘designated services’. Designated services include, but are not limited to, opening a bank account, obtaining a loan, buying shares or gambling at casinos, race tracks or gaming machines. It should be noted, that real estate agents, lawyers and accountants are excluded from the scheme.

The legislation places number of regulatory obligations on reporting entities, including customer and beneficial ownership due diligence, record keeping and transactions reporting. There are also provisions that allows the government agency that oversees the Act to authorise officials of Commonwealth, State or Territory agencies to access a broader range of information gathered under the Act for the purpose of performing their ordinary duties and functions.

Dan then traversed a number of recent cases that involved the prosecution of professionals for money laundering offences. One such case was John Anile, a previously Melbourne based solicitor who recently pleaded guilty to one count of money laundering. His offence arose out of a 1994 land deal in which Anile, then a practising solicitor, was given cash from a friend for the purchasing and development of a block of land. For his role he was sentenced to 3 years imprisonment. In handing down the sentence, Judge Michael O'Connell stated, ‘As a legal practitioner, particularly one with some criminal law experience, you should have well understood how money laundering enables and encourages serious criminal activity … In other words, you should have known better.’

Lastly, Dan outlined a handful of tips all professionals should use to prevent themselves or their staff from being caught off guard in this space. There were:

  1. Get to know your client;
  2. Develop an anti-money laundering internal policy framework within your team;
  3. Complete anti-money laundering compliance education regularly;
  4. Be constantly suspicious; and
  5. When in doubt, get out.

 

by Dan Rogers

Robertson O'Gorman Solicitors' Legal Director, Dan Rogers - is being tough on youth justice the weak solution?

Last night our Principal and Legal Director, Dan Rogers was one of 5 panel members at the Politics in the Pub event held at Brisbane Powerhouse, an event organised by the New Farm Neighbourhood Centre. The topic for discussion was 'Is being tough on youth justice the weak solution?'  Dan was joined by other experts in the youth justice system, including Katrina Jefferson from the Youth Advocacy Centre, Debbie Kilroy OAM from Sisters Inside Inc, Maggie Munn from Amnesty International Australia, and Professor Tamara Walsh from the University of Queensland. The topic was chosen in the wake of recent debate over the Youth Justice and Other Legislation Amendment Bill 2021 (Qld) (‘the Bill’) which proposes laws that will, among other things:

  • reverse the presumption of bail for children who reoffend in certain circumstances;
  • impose GPS tracking devices on children aged 16 and 17 years old; and
  • make breach of bail an aggravating factor in the sentencing of children.

The night begun with some context - we were told that of the children currently on remand for an offence in Queensland, 80% of those children are known to Child Services.  Of this group, 52% of children who come into contact with the criminal justice system usually only come before the courts once or twice. Therefore, the remaining 48% are recidivist children. It is currently estimated that only 400 children belong to this recidivist group.

When asked how governments should respond to the issue of youth justice and youth crime, Dan stated that the central challenge for legislatures is whether they will move beyond the politically attractive, quick fix solutions towards solutions that address the deep rooted social disadvantage many of these children often face. He concluded that quick-fix, band aid solutions, such as those in the Bill, will not contribute to a reduction in youth crime.

Dan also spoke about the Human Rights Act 2019 (Qld) (‘the Act’). He noted that under this Act, children are afforded a number of unique rights that must be afforded to them in their interactions with the State in a criminal justice setting. In particular, section 33 of the Act recognises that children in criminal processes are especially vulnerable due to their age, and that they require special protections. Subsection 33(1) ensures that children detained must be segregated from all detained adults. This acknowledges that children have greater needs than adults and the risks associated with children being detained with adults. Subsection 33(2) provides that when accused, children must brought to trial as quickly as possible. Lastly, subsection 33(3) states that when convicted, children must be treated in a manner appropriate for their age. This is likely to mean that if they are imprisoned, the State should ensure that they still have access to education and other recreational activities children are likely to enjoy.

Dan concluded that there is a very real risk that the proposed laws are a flagrant breach of the unique human rights afforded to children in the criminal justice setting.

The night concluded with a note of optimism - each of the speakers noted that they are hopeful there can be movement forward on this issue that will divert children away from custodial sentences in favour of more rehabilitative approaches.

Thank you to the Powerhouse and the New Farm Neighbourhood Centre for a wonderful night.

by Dan Rogers

How to run a bail hearing in a COVID-19 world

Today our Principal, Dan Rogers presented a Queensland Law Society On-Demand Video about how to run a bail hearing in a COVID-19 world. The presentation will be available shortly. Topics covered include:

  • important preparation for bail hearings
  • key differences between bail applications in the higher and lower courts
  • new developments in the past month and how they affect bail applications
  • how to articulate a COVID-19 related case in a bail hearing
  • other Human Rights Act 2019 considerations to make.

Persons in custody are highly vulnerable during the current pandemic. If you need advice or assistance in a bail application or a special circumstances parole application, contact Robertson O’Gorman Solicitors on (07) 3034 0000

by Dan Rogers

R v Young [2020] QCA 3 – Dishonesty in Corporate Matters

Insolvent trading by companies is a source of considerable attention and the regulator is actively investigating matters where allegations of insolvent trading are alleged.  Section 588G(3) concerns a director’s personal criminal liability if they fail in their duty to prevent insolvent trading by a company.

Under that provision, a person will commit the criminal offence if:

  • The company incurs a debt at a particular time;
  • At that time, the person is a director of the company;
  • The company is insolvent, becomes insolvent at that time because of debt;
  • The director suspected at the time that the company was insolvent or would become insolvent because of that debt or other debts;
  • The director’s failure to prevent the company incurring the debt was dishonest.

‘Dishonest’ is defined in the Act as according to the standards of ordinary people.[1] Defences in relation to reasonable grounds, illness or reasonable steps are applicable to the provision.[2]

This article considers the recent case of R v Young[3] where the director, Mr Young, was charged with a number of offences related to breaches of his director’s duties.

In R v Young, the appellant Mr Young was tried in the District Court on one count of fraud (s 408C Criminal Code (Qld)) and 18 counts of insolvent trading (s 588G(3) Corporations Act 2001 (Cth)). The charges arose from Mr Young’s involvement in companies associated with the Kleenmaid white goods business. Due to financial difficulties, the Kleenmaid group was ‘restructured’ around mid-2007 wherein the group was divided into the Corporate and Orchard Groups. The core business of Kleenmaid companies was to be conducted by the Corporate Group, which was largely EDIS and its subsidiaries. In November 2007, Westpac provided finance to EDIS totaling to $13 million. In 2009, the Kleenmaid group went into liquidation.

The fraud charge alleged that the appellant, with his brother and another, dishonestly gained a benefit for EDIS in November 2007. Specifically, this involved loan facilities from Westpac totaling to $13 million. The counts of insolvent trading involved debt/s incurred by EDIS between July 2008 and April 2009. The prosecution case was that the appellant acted dishonestly by concealing the nature of the intended ongoing relationship between EDIS (and its subsidiaries) and the Orchard Group; the two groups were not dealing with each other at an arms-length basis as portrayed to Westpac, leaving EDIS exposed to the precarious financial situation of the Orchard Group.

In this case, although defences were pursued, ultimately the Jury found beyond reasonable doubt that the director did fail in his duties and was dishonest in his dealings.

For businesses, it is important to remember that large companies whose umbrella incorporates subsidiary companies should develop strict policies and documented processes which can be used to argue reasonable grounds or reasonable steps were taken. If your company requires assistance with a regulatory investigation or you are concerned about your company’s response to a regulator, our corporate criminal defense advisors can assist.

[1] Corporations Act 2001 (Cth) s 9.

[2] Ibid s 588H.

[3] [2020] QCA 3.

by Dan Rogers

Human Rights Act Series - Part 5 - Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

This is the fifth blog in our Human Rights Act Series, looking at the case of R v Shaheed[1] regarding police powers and exclusion of evidence.

As discussed in our previous blog, courts have discretion to exclude unlawfully or improperly obtained evidence.[2] In Victoria, this discretion is enlivened by a breach of right/s as contained in the Charter.[3] In New Zealand, which has analogous legislation, the Court of Appeal have ruled that the test of admissibility is one of balancing the seriousness of the breach of the right against securing convictions.[4] The Queensland Act will operate in a similar way.

Facts

Mr Shaheed was charged with offensive behaviour and requested to provide a blood sample for the police database. He was told that if he refused to do so, authorisation from the court would be sought so that the sample could be taken by force. No such power existed to require a blood sample under the relevant legislation. Mr Shaheed was not provided the opportunity to consult a lawyer, and provided a sample that linked him to a rape case of which he was not previously a suspect. He was then identified by the rape complainant from a photo-board.

Decision

The New Zealand Court of Appeal overruled previous decisions that provided for exclusion of evidence obtained in breach of the NZBORA. They replaced the exclusionary rule with a new ‘balancing test’, summarised by Blanchard J as:[5]

The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to that breach but which also takes proper account of the need for an effective and credible justice system.

The majority of the Court of Appeal also identified six key factors to be considered in applying the balancing test:

  1. the nature of the right and the nature of the breach;
  2. whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
  3. whether other investigatory techniques were available but not used by the police;
  4. the reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
  5. the seriousness of the crime; and
  6. the importance and centrality of the evidence to the Crown's case.

The result, though with judges providing considerably varied reasons, was that the blood sample was rendered inadmissible while the photo-board identification evidence was admissible.[6] The ‘balancing test’ was essentially codified in the Evidence Act 2006 (NZ).[7] Significant academic debate is present in New Zealand as to whether this test affords sufficient consideration of human rights.

This decision makes it clear that where police breach the requirement to act compatibly with and give proper consideration to human rights, this will be an important consideration when deciding whether to exclude evidence. Further, it confirms that police conduct that breaches a person’s rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[8] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[9]

[1] [2002] NZLR 377.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] See generally: Simon Consedine, ‘R v Shaheed: the first twenty months” (2004) 10 Canterbury Law Review 77.

[5] R v Shaheed [2002] 2 NZLR 377, [156].

[6] Elias C held all evidence should be admissible (at 383). Richardson P, Tipping and Blanchard JJ excluded all evidence (at 423-4). Gault and Anderson JJ admitted all evidence (at 428 and 431). McGrath J excluded sample 3 but admitted the photo-board identification evidence (at 430).

[7] See generally Law Commission, The 2013 Review of the Evidence Act 2006 (Report No 127, February 2013) 68-74.

[8] Ibid at [333].

[9] Ibid at [348], [479].

by Dan Rogers

Human Rights Act Part 4: Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52

This is the fourth blog in our Human Rights Act series, looking at the case of DPP v Kaba[1] regarding police powers and exclusion of evidence.

Courts have a discretion to exclude evidence that is unlawfully or improperly obtained.[2] While a breach of the Charter may not necessarily lead to the exclusion of evidence obtained as a consequence of that breach, it will supply the element of unlawfulness that enlivens judges’ discretion to exclude evidence.[3]

In DPP v Kaba, the Supreme Court held that police had acted incompatibly with the human rights of freedom of movement and privacy when they coercively questioned a person during a vehicle stop. These rights as expressed in the Victorian Charter[4] are essentially the same as their counterparts in the Queensland Human Rights Act 2019[5] (HRA).

Mr Kaba was a passenger in a car that was subject to a random stop and licence and registration check by uniformed police officers in 2012. Mr Kaba walked away from the car and the police who, without suspecting him of any wrongdoing, repeatedly pressed him for his name and address. Mr Kaba refused these requests using offensive language and protested about racial harassment. He was then arrested for using offensive language and failing to state his name and address.[6]

The Magistrate found that the police had no power under the relevant legislation[7] to carry out the random stop and licence and registration check, and had breached Mr Kaba’s rights by subjecting him to coercive questioning for his name and address. Consequently, the Magistrate exercise his discretion not to admit evidence on the grounds that it was the result of unlawful and improper police conduct.

On appeal, Bell J found that the Magistrate was correct in finding that there had been a breach of Mr Kaba’s rights to movement and privacy.[8] While there had been no physical interference with Mr Kaba and the interference itself was for a short duration, it was not simply a ‘brief and innocuous request for [his] name and address’.[9] Bell J stated that Mr Kaba had not been suspected of wrongdoing and the police ‘could easily have let Mr Kaba go on his way and they should have done so.[10] Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning’.[11] Bell J stated that the relevant test in judging the limits of police interference is whether objectively it can be said that individuals are made to feel that they cannot chose to cease cooperating or leave in circumstances of police interaction.[12]

However, Bell J held that the police have the power of random stop and check under the relevant legislation.[13] Because the Magistrate’s decision not to admit the evidence was based on both findings, the decision was quashed and the matter was returned to the Magistrates Court.[14]

This decision clarifies that where police breach their obligation to act compatibly with and give proper consideration to human rights (under s 38(1) of the Victorian Charter or similar provisions in Queensland’s Act), courts will consider whether to exclude evidence on this basis. Further, it confirms that police conduct breaching Charter rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[15] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[16]

[1] [2014] VSC 52.

[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.

[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.

[4] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12, 13(a) (‘Victorian Charter’).

[5] Human Rights Act 2019 (Qld) ss 19, 25 (‘HRA’).

[6] DPP v Kaba [2014] VSC 52, [1]-[3]; see also ‘DPP v Kaba (Supreme Court) – December 2014’, Victorian Equal Opportunity & Human Rights Commission (Web Page) < https://www.humanrightscommission.vic.gov.au/index.php/human-rights/item/1098-dpp-v-kaba-supreme-court-december-2014>.

[7] Road Safety Act 1986 (Vic) s 59(1).

[8] DPP v Kaba [2014] VSC 52, [469]-[470].

[9] Ibid [478].

[10] Ibid [478].

[11] Ibid.

[12] Ibid [459].

[13] Ibid [458].

[14] Ibid [486]-[487].

[15] Ibid [333].

[16] Ibid [348], [479].

by Dan Rogers

Human Rights Act - Part 3: Case example: Bail – Gray v DPP [2008] VSC 4

Case example: Bail – Gray v DPP [2008] VSC 4

This is the third blog in our Human Rights Act series, looking at the decision of the Victorian Supreme Court in Gray v DPP regarding bail.

The Queensland Human Rights Act 2019 (HRA) and human rights legislation in other jurisdictions do not expressly contain a right to bail. Rather, the issue of bail is raised through the provisions dealing with the right to liberty, as contained in s 29 HRA (equivalent to s 21 of the Victorian Charter).

Section Right
s 29(1) Every person has the right to liberty and security
s 29(2) A person must not be subjected to arbitrary arrest or detention
s 29(3) A person may only be deprived of their liberty in accordance with legal procedures
s 29(4) A person who is arrested or detained must be informed at the time of the arrest/detention of the reason for arrest/detention, and promptly informed of any proceedings to be brought against them
s 29(5) A person who is arrested or detained on a criminal charge must be promptly brought before a court and/or to trial without reasonable delay
s 29(6) A person may not be automatically detained in custody when awaiting trial, but their release may be subject to guarantees to appear for trial or other stages of the judicial proceeding
s 29(7) If a person has been deprived of their liberty by arrest/detention they may apply to the court regarding the lawfulness of their arrest/detention, and the court must make a decision without delay and order the release of the person if detention was unlawful
s 29(8) A person must not be imprisoned only because they cannot perform a contractual obligation

 

Case law already indicates that time that a person will spend in custody awaiting the determination of a matter is an important consideration.[1] Where time in custody on remand will likely exceed any sentence of imprisonment imposed after conviction, time may be regarded as outweighing other relevant factors.[2] Human rights legislation is likely to take this argument further.

In Gray v DPP,[3] Kelly Gray was charged with numerous indictable offences, including aggravated burglary arising from assault. He was refused bail on the grounds that a person charged with aggravated burglary is to be remanded in custody unless the person can satisfy the court that detention is not justified.[4] On application to the Supreme Court that his continued detention was not justified, the argument was made that the trial was not likely to commence before 11-12 months after he was initially remanded in custody. Given the relative minor injuries to the victims, the applicant’s prior convictions and the seriousness of the offence, there was a significant risk that Gray would serve more time on remand than under any sentence.[5]

While the Victorian Charter was not explicitly mentioned by either party, Bongiorno J considered that sections 21(5)(c) (the equivalent of s 29(5) HRA – see above) and 25(2)(c) (the equivalent of s 32(2)(c) HRA) to be highly relevant.[6] His Honour found that those sections guaranteed the right to a timely trial, and the inability to provide this was relevant to whether bail should be granted.[7] His Honour stated that:[8]

The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard… is to release him on bail - at least the only remedy short of a permanent stay of proceeding.

Given the similarities between the Victorian Charter and HRA provisions in this regard, it is likely that the same right to a timely trial may be implied in Queensland.

[1] Williamson v DPP [2001] 1 Qd R 99 at 104 per Thomas JA.

[2] Lacey v DPP [2007] QCA 413 at [13].

[3] [2008] VSC 4. See also Human Rights Law Centre, ‘Relevance of Victorian Charter of Rights to Delay in Prosecution and Grant of Bail’, Human Rights Case Summaries (Casenote, 24 January 2008) <https://www.hrlc.org.au/human-rights-case-summaries/gray-v-dpp-2008-vsc-16-january-2008>.

[4] Bail Act 1977 (Vic) s 4(4)(c); Gray v DPP (n 3) [6].

[5] Gray v DPP (n 3) [7]-[8].

[6] Ibid [10]-[11].

[7] Ibid [12].

[8] Ibid [12].

by Dan Rogers

Human Rights Act - Part 2: Case example: Unreasonable delay – R v Mills

This is the second blog in our Human Rights Act series, looking at the decision of the ACT Supreme Court in R v Mills in relation to unreasonable delay. For information on right to fair trial under human rights legislation, please see our earlier blog post entitled ‘Human Rights Act 2019 (Qld): Right to Fair Hearing’.

Unreasonable delay is specifically enumerated as a right in the Human Rights Act (HRA), found in the same form in the ACT’s Human Rights Act. In R v Mills the ACT Supreme Court, in granting a permanent stay, considered what amounts to ‘unreasonable delay’ and the options available to the court to provide a suitable remedy in the context of section 22(2)(c) of the Human Rights Act 2004 (ACT). Unreasonable delay also goes to the fairness of trial.[1]

In October 2006, Kara Lesley Mills was charged with four offences including trafficking in a controlled drug, or alternatively, with possessing that drug, and receiving stolen property.  While Mills was committed to stand trial in September 2007, the trial commenced in July 2008 but was later aborted after an informant revealed during evidence that DNA analysis of bags containing the drugs had been tested. This contradicted the information provided to the defence, and was crucial to the defence’s arguments. A pre-arraignment conference was scheduled in June 2009 but this was twice adjourned for various reasons. The matter was eventually set down for trial in March 2011, four years after Mills was charged.[2]

Mills’ sole argument was unreasonable delay relying on s 22(2)(c) of the Human Rights Act 2004 (ACT).[3] The delay was duly acknowledged by the prosecution, but they argued that it would not be unfair to try Mills and that the appropriate response was not a permanent stay.[4]

The decision of the court was to grant a permanent stay. Higgins CJ commented that the right to trial without unreasonable delay was stronger under the Human Rights Act 2004 (ACT) than common law,[5] but that this did not necessarily indicate a right to stay.[6] Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. His Honour found that ‘[t]he delay of two and a half years from the first trial, in a relatively simple case is...egregiously unreasonable, for whatever reason it might happen’.[7]

In relation to Mills’ particular circumstances, she had raised the issue of unreasonable delay at an early stage and had been subject to the anxiety and expense of two trials without positive reasons being advanced by the Prosecution for the delay and their failure to promptly test the drug bags (which caused further delay).[8] Higgins CJ further commented that though the lack of resources available to the courts may also have contributed to the delay, "the failure to provide adequate resources will, if unreasonable delay results, be a breach of human rights entitlements".[9]

In coming to His Honour’s decision, Higgins CJ referred to R v Upton[10] in relation to factors that go to the reasonableness of delay:[11]

  • Length of delay;
  • Waiver of time periods;
  • Reasons for delay, including:
    1. Inherent time requirements of the case
    2. Actions of the accused
    3. Limits on institutional resources, and
    4. Other reasons for delay; and
  • Prejudice to the accused

The relative seriousness of the case, issues of fact in the case and the likely future delay were also considered in R v Upton.[12]

Footnotes

[1] See Foote v Somes [2012] ACTSC 63; Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Interim Report No 127, July 2015) 279.

[2] See R v Mills [2011] ACTSC 109, [1]-[15] (‘Mills’).

[3] Ibid [14].

[4] Ibid [16]-[19].

[5] Ibid [21].

[6] Ibid [22].

[7] Ibid [39].

[8] Ibid [37]-[38].

[9] Ibid [44].

[10] [2005] ACTSC 52 (1 July 2005), [22], citing Martin v Tauranga District Court [1995] 2 NZLR 419 (Cooke P) and R v Morin (1992) 71 CCC (3d) 1..

[11] Mills (n 2) [25].

[12] Ibid [26].

by Dan Rogers

Human Rights Act 2019 (Qld): Not just another 'Magna Carta argument'

On 24 October 2019, Dan Rogers presented at the annual Queensland Magistrates Conference.  He spoke about the recently enacted Human Rights Act 2019 (Qld) and the likely practical impacts on litigation, particularly in the criminal law jurisdiction of the Magistrates Court.  The conference paper titled, ‘Human Rights Act 2019 (Qld): Not just another ‘Magna Carta argument’ and other documents are available here.

by Dan Rogers

The Human Rights Act 2019 (Qld) for criminal cases in Queensland

On Monday 4 November 2019, Robertson O’Gorman and the College of Law hosted Scott McDougall (Human Right's Commissioner) and Saul Holt QC. The focus of the evening was on the practical application of Queensland’s human rights legislation in criminal law cases. Criminal defendants are extremely vulnerable when they face a prosecution by the State with all its might and resources. Protecting their rights and interests is critical. This new legislation, if used effectively, provides a further layer of protection. The role of criminal defence lawyers is critical.

The materials from the presentation are available here

 

Scott McDougall, Dan Rogers and Saul Holt QC

 

 

by Dan Rogers

Human Rights Act - Part 1

STATUTORY INTERPRETATION AND THE HUMAN RIGHTS ACT 2019 (QLD)

The purpose of this blog series is not to argue the merits or otherwise of human rights legislation. That debate is over. Queensland has enacted the Human Rights Act 2019 (Qld) (‘HRA’). All participants in the justice system need to understand the impact that this may have on the administration of justice in Queensland, and their associated rights.

This first post will consider the HRA’s impact on statutory interpretation. Upcoming posts will consider:

  • Right to a fair hearing under the HRA
  • Case example: Unreasonable delay – R v Mills [2011] ACTSC 109
  • Case example: Bail – Gray v DPP [2008] VSC 4
  • Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52
  • Case example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

Queensland’s HRA draws on the pre-existing human rights legislation from Victoria[1] and the Australian Capital Territory.[2] The case law and academic analysis from these jurisdictions provide the best insight into how the HRA will operate in Queensland. Also, the largely analogous legislation and jurisprudence from New Zealand[3] is a useful reference for Queensland.

Rule of statutory interpretation

In the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), s 32(1) outlines statutory interpretation in a manner largely similar to s 48 of the HRA. Both can be viewed as reflecting the principle of legality, but with a ‘wider field of application’.[4]

Both legislative instruments state that all statutory provisions, so far as possible and remaining consistent with their purpose, must be read in a way that is compatible with human rights.[5] However, the Queensland counterpart includes an extra provision stating that where a statutory provision cannot be interpreted in this manner, it must be interpreted ‘in a way that is most compatible with human rights’. Consequently, as the HRA comes into effect in 2020, there may be some differences in statutory interpretation between the Victorian Charter and the HRA.

For all other aspects of statutory interpretation, the Victorian Bench Book[6] is a useful guide to interpret specific statutory provisions or where an interpretation of a provision is an issue in any hearing. The Victorian Bench Book provides for the following steps in relation to the operation of s 31(1) of the Victorian Charter:-[7]

  1. Determine the provision’s potential meaning/s using ordinary grammatical meanings of the words in the provision (insofar as it does not contradict the purpose of the enactment).[8]
  2. Where the provision has a single clear and unambiguous meaning consistent with the purpose of the enactment, give the provision that meaning regardless of whether it limits Charter/HRA rights.
  3. If more than one potential meaning is evident, determine if the potential meanings limit one or more Charter/HRA rights:
    1. If only one potential meaning places no limits on any Charter/HRA rights, than that meaning should be given to the provision;
    2. If more than one potential meaning places no limits on any Charter/HRA rights, choose the meaning that better enhances or protects the Charter/HRA;
    3. If all potential meanings limit one or more Charter/HRA rights, the meaning that least limits the rights should be given.

Momcilovic v R (2011) 245 CLR 1

Momcilovic is the leading High Court decision on the operation of s 32(1) of the Victorian Charter,[9] holding that a provision’s meaning must be discerned according to ordinary techniques of construction, and that s 32(1) does not allow courts to modify the meaning of a provision beyond the limits of these techniques.[10]  French CJ stated that s 32(1) requires:[11]

statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms” but with a “wider field of application.

This approach has since been adopted in various cases.[12] Further, the High Court ruled that the power for the Supreme Court to make a declaration of inconsistent interpretation pursuant to s 36 of the Charter is a valid power.

Other HRA provisions impacting statutory interpretation

Supreme Court referral

Other courts and tribunals are able to refer questions relating to the application of the HRA or the interpretation of a statutory provision in accordance with the HRA to the Supreme Court.[13] After considering the question, the Supreme Court may make a declaration of incompatibility to the effect that the statutory provision cannot be interpreted in a way compatible with human rights.[14] This will then be referred to the relevant Minister for consideration and tabling in Parliament.[15] However, this declaration does not affect the validity of the statutory provision.[16]

Human rights may be limited

Section 13(1) HRA states that ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. Section 13(2) HRA then details various factors that will assist in deciding whether a limit is reasonable and justifiable, including:[17]

  • The nature of the right;[18]
  • The nature and consistency of the purpose of limitation;[19]
  • Whether there are less restrictive means of achieving the same purpose;[20] and
  • Balancing the importance of the purpose with the preservation of the human right.[21]

While the court in Momcilovic discussed the interaction between ss 32(1) and 7(2) of the Victorian Charter (equivalent to ss 48 and 13 HRA respectively), the judges differed in their opinion. There is therefore no binding authority on the role of s 7(2) in interpretation, and it remains a live issue.

International, foreign and local jurisprudence

Section 48(3) HRA is the same as its Victorian Charter counterpart (at s 32(2)). While the courts may consider international, domestic and foreign jurisprudence, they are not required to do so. This is not a novel exercise of judicial power, as courts are already permitted to have regard to international law and relevant domestic, foreign and international jurisprudence when interpreting statute.[22]

This is the first blog post in a series on the Queensland Human Rights Act, which will come into force on 1 January 2020. Keep posted!

[1] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).

[2] Human Rights Act 2004 (ACT) (‘HRAACT’).

[3] New Zealand Bill of Rights Act 1990 (‘NZBR’).

[4] Momcilovic v The Queen (2011) 245 CLR 1, [54] per French CJ.

[5] Victorian Charter (n 1) s 32(1); Human Rights Act 2019 (Qld) s 48(1) (‘HRA’) (emphasis added).

[6] Charter of Human Rights Bench Book (Vic).

[7] See 2.1 of the Charter of Human Rights Bench Book (Vic).

[8] Momcilovic v The Queen (2011) 245 CLR 1; WK v R (2011) 33 VR 516; Slaveski v Smith (2012) 34 VR 206; Nigro v Secretary to the Department of Justice (2013) 41 VR 359.

[9] to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  For a detailed discussion of how key provisions of the Victorian Charter were construed, see: Stephen Tully, ‘Momcilovic v The Queen: Case note’ (2012) 19 Australian International Law Journal 280.

[10] Momcilovic v The Queen (2011) 245 CLR 1 at [38]-[40], [50]-[51], [61]-[62] (French CJ); [146], [148]-[160] (Gummow J); [280] (Hayne J); [546], [565], [574] (Creenan and Kiefel JJ); [684]-[685] (Bell J).

[11] Momcilovic v The Queen (2011) 245 CLR 1 at [51].

[12] Slaveski v Smith (2012) 34 VR 206, [23]; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].

[13] HRA (n 5) s 49.

[14] HRA s 53.

[15] HRA s 56(1).

[16] HRA s 48(4).

[17] NB this is a shortened version of the full section.

[18] HRA s 13(2)(a).

[19] HRA s 13(2)(b).

[20] HRA s 13(2)(d).

[21] HRA s 13(2)(g).

[22] Momcilovic v The Queen (2011) 245 CLR 1, [18] (French CJ)

by Dan Rogers

Dan Rogers & Terry O’Gorman Named Preeminent Queensland Criminal Lawyers 2019

For the fifth year in a row, Robertson O’Gorman Solicitors have been named as a First Tier Queensland Criminal Defence Firm in the 2019 Doyle’s Guide. The list, released on 27 August, can be accessed here.

Terry O’Gorman and Dan Rogers have also been recognised as preeminent Queensland Criminal Defence Lawyers. Preeminence is awarded to those lawyers whose expertise set the industry standard. Terry and Dan make up 2 of only 5 preeminent Queensland criminal defence lawyers.

Senior Consultant Leigh Rollason was also recognised as a recommended Queensland Criminal Defence Lawyer.

The list of leading criminal defence lawyers can be accessed here.

The Doyle’s Guide is compiled by fellow criminal lawyers and barristers, and recognises the expertise of our firm’s criminal defence lawyers.

Congratulations to Terry, Dan and Leigh for this achievement!

by Dan Rogers

Black Economy and Currency Restrictions

The Black Economy Taskforce produced its final report in October 2017.  The Chair, Michael Andrew, said in the covering letter in producing the Taskforce report that “there was a strong sense of community outrage at the inequality and unfair disadvantage created by the Black Economy.  I hope that by creating an efficient level playing field we can lower taxes, treat all businesses and workers fairly, increase community services or reduce debt if all Australians operate within the rules”.

Last week, the federal government released an Exposure Draft Explanatory Materials in respect of a Bill that proposes to implement the Taskforce’s recommendation.  The Bill is the Currency (Restrictions on the Use of Cash) Bill (2019).

The Bill introduces offences for entities that make or accept cash payments of $10,000 or more.

The explanatory material notes that “this ensures that entities cannot make large payments in cash so as to avoid creating records of the payment and facilitating their participation in the Black Economy and undertaking related illicit activities”.

The explanatory materials go on to observe that “to mitigate the risk that large, anonymous cash payments may be used to facilitate money laundering and tourism finances, businesses that provide certain services must report cash payments for goods and services of $10,000 or more. This includes business that provide financial services and provide gambling services.

In the 2018-2019 budget, the government announced that it would introduce a cash payment limit for transactions between businesses and individuals with effect from 1 July 2019.  This was recently extended to 1 January 2020.

The Bill creates new offences that apply if an entity makes or accepts cash payments with a value that equals or exceeds the cash payment limit of $10,000.

The new law introduces a number of offences carrying strict liability.

Business must be conscious of these potential changes to legislation in order to ensure compliance with Regulatory Bodies. The imposition of this requirement if passed, will add to the already strict regime of AUSTRAC reporting and money laundering.

by Dan Rogers

Human Rights Act 2019 (Qld) - What remedies are available?

A human rights complaint or action may be brought for a breach of section 58(1) of the Human Rights Act 2019 (Qld) (‘the Act’). This states a public entity must not act or make a decision in a way that is not compatible with human rights; or in making a decision, fail to give proper consideration to a human right relevant to the decision.

The Act does not give a direct remedy to individuals whose human rights have been breached by a public entity. Rather, people seeking to allege that their rights have been violated are required to rely on a separate ground of relief, at which point they could raise unlawfulness under the Act.

Dispute Resolution

The majority of human rights complaints made under the Act will be remedied through the dispute resolution framework implemented by the Queensland Human Rights Commission (QHRC). The process of bringing a complaint to the QHRC is discussed in the previous blog post “Queensland Human Rights Commission”.  Conciliation conferences will be held between complainants and representatives of the relevant public entity. They will be facilitated by an accredited dispute resolution practitioner from the QHRC, with the aim of reaching a practical agreement to resolve the complaint. Participation in a conciliation conference does not affect a complainant’s right to seek relief or remedy through legal proceedings. However, this process is relatively informal and cost effective in comparison to proceedings.

Who you can bring?

When attending a conciliation conference you may bring a support person. However, this person is not entitled to speak during the conference and should be someone that is not involved in the complaint. Upon request, you may also be entitled to bring a legal representative with the conciliator’s consent. During the conference you can request a short break to talk to your support person or legal representative in private. However, you will still be required to speak for yourself throughout the conference. Further, if you require an interpreter this can be provided by the QHRC.

What is the conciliator’s role?

The conciliator’s purpose is to ensure the conference is conducted fairly for all involved. A conciliator will not make a decision about whether a breach of the Act has occurred or what the outcome of the complaint will be as a judge would, nor can they tell you what to offer or take sides during the conference. Rather, their role is to facilitate discussion of the complaint by asking questions of both sides. Additionally, they will explain the law and advise the parties of the outcomes in similar cases so parties understand the likely result if the complaint is not resolved and legal proceedings are commenced. The conciliator may also assist the parties in generating options for resolving the complaint.

How is the conciliation conference conducted?

Conferences may be conducted as a face-to-face meeting, teleconference, or by a “shuttle” method whereby the conciliator shifts between talking to each party in separate rooms. In the conference you will be required to talk about what happened and how it has impacted you, as will the other side. If it is desirable, the conciliator may seek to speak to each side separately. The parties will then discuss how they could resolve the complaint. If agreement is reached, this will be recorded in writing and signed by the parties. Once signed, this agreement is binding. If agreement is not reached, the parties will be asked what next steps they would like to take to resolve it, such as legal proceedings.

Legal Proceedings

Proceedings regarding a breach of section 58(1) may only be brought through what is known as a “piggy-back” action. That means proceedings can only be brought under section 58(1) of the Act in conjunction with an independent cause of action, thereby “piggybacking” it to this action. In practice, the existing cause of action is likely to be seeking judicial review of the public entity’s decision which is what the human rights complaint relates to. Legal proceedings relating to a breach of the Human Rights Act 2019 (Qld) cannot be brought independently.

A person is entitled to seek any relief or remedy that they could have claimed in an independent action, excluding monetary damages. Even if the independent cause of action fails, for example an action in judicial review, the person may still be entitled to a remedy for the human rights contravention.

This is the final post in our human rights series! Other blog posts within the series include:

 

by Dan Rogers

Human Rights Act 2019 (Qld) – Criminal Proceedings

Section 32 of the Human Rights Act 2019 (Qld) details the rights of a defendant subject to criminal proceedings in Queensland. Many of the rights included in this provision are similar to those protected by the right to a fair trial, however these relate specifically to criminal proceedings. Section 32 ensures the following foundational rights are protected:

  • Presumed innocent until proven guilty – this means that the prosecution has the burden of proving every element of the offence, before a person can be found guilty.
  • Informed promptly of the details and reason for any charge made against them
  • Have adequate time and facilities to prepare a defence and to communicate with a lawyer or advisor chosen by the person. If the person is eligible for Legal Aid, this provision does not allow them to choose a particular lawyer to provide assistance through Legal Aid.
  • to be tried without unreasonable delay;
  • to be tried in person, and to defend oneself personally or through legal assistance chosen by the person or, if eligible, through legal aid;
  • to be informed, if the person does not have representation, about the right, if eligible to legal aid;
  • to have access, if eligible, and if the interests of justice require it, to free legal aid;
  • to examine, or have examined, witnesses against the person;
  • to obtain the attendance of, and examine witnesses on the person’s behalf, under the same conditions as witnesses for the prosecution;
  • to have the free assistance of an interpreter if the person cannot understand or speak English. If you require an interpreter in a criminal proceeding, contact the registry in the court where your matter will be dealt with as early as possible. You should make your request in writing. Court registry staff will engage an interpreter for criminal proceedings—from an approved service provider or other sign language interpreting service—as directed by the court;
  • to have the free assistance of specialised communication tools and technology, and assistants, if the person has communication or speech difficulties that require this assistance. Once again, the individual or their legal representative can contact the registry to make such arrangements;
  • not to be compelled to testify against themselves or to confess guilt. This aligns with the right against self-incrimination; and
  • to have a conviction or sentence reviewed by a higher court in accordance with the law. A defendant can appeal a guilty verdict and/or apply for leave to appeal against a sentence.There are specific time frames for making an appeal. If the appeal against the conviction is successful, the court will either order a new trial with a different judge and jury, or find the appellant not guilty. If the appeal against the sentence is successful, the sentence may be reduced or a different type of sentence may be imposed.

None of these provisions alter a person’s existing rights and obligations under the Legal Aid process as set out under Legal Aid Queensland Act 1997.

 

Special Rights for Children

Section 32 of the Act also provides that a child charged with a criminal offence has the right to a procedure that takes into account their age. Section 33 of the Act also states that a child must be treated in an age-appropriate way during criminal proceedings. Examples of this can be seen in the current operation of Queensland Children’s Courts, which alter ordinary court procedure in the following ways:

  • Proceedings are held in a closed court to protect the child’s identity and limit the stress of attending court, allowing only people relevant to the proceeding to attend;
  • There is a prohibition on publishing the identifying material about the child in relation to the proceeding, with limited exceptions;
  • Generally, courts will not deal with a child’s matter unless a parent is present. A court can adjourn a proceeding to enable a parent to be present, and can recommend the department meet a parent’s travel expenses (s 69 Youth Justice Act);
  • Court processes can be conducted less formally, with parties sitting down to speak.

The provision also states that criminal proceedings and outcomes for children should promote the desirability of rehabilitation, supporting the general principle that children should only be detained as a matter of last resort.

Note, s33 of the Act sets out two further rights regarding accused children. Firstly, that they are to be detained separately from all adults. Further, the child must be brought to trial as soon as possible.

 

Miscellaneous Provisions Relating to Criminal Proceedings

Section 34 of the Act states a person cannot be re-tried for an offence for which they have already been finally convicted or acquitted in criminal proceedings, enshrining the double jeopardy principle. Queensland does have laws that breach this right when it concerns ‘fresh and compelling’ evidence for very serious offences.

Further, section 35 sets out the rules in relation to retrospective laws. It states you cannot be found guilty of an offence for conduct that was not a criminal offence at the time you engaged in it. This stops the government from making laws to outlaw conduct that has already happened, maintaining fairness for individuals by allowing them to have access to the law that applies to them. Likewise, when a person is convicted of an offence, the maximum penalty that can be imposed is that which applies at the date they committed the offence. If, before trial or sentencing this penalty increases, it cannot be handed down to them. However, if a person is convicted of an offence, and before the sentencing hearing occurs the penalty is reduced, they are eligible for this reduced penalty. This seeks to afford maximum fairness to the accused, balancing the power imbalance between the state and individual.

 

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!

by Dan Rogers

Robertson O’Gorman lawyers recognised as Leading Lawyers across Australia

The 2018 Doyles Guide has recognised lawyers Terry O’Gorman and Dan Rogers among Australia’s criminal law experts. The list can be access here.

Founding partner Terry O’Gorman has been identified for his expertise and ability in practicing criminal law as a Leading Lawyer in Australia. Terry has also been recognised as a Recommended Lawyer for his expertise in white collar crime, corporate crime and regulatory investigations.

Legal Director Dan Rogers has been recognised for his expertise and ability in criminal law as a Recommended Lawyer in Australia.

Terry and Dan are two of only six Queensland lawyers to make the list. Robertson O’Gorman is the only firm in Queensland with two solicitors recognised by the exclusive list.

The Doyles Guide recognises lawyers who excel in their field of expertise as identified by their peers. Congratulations to Terry and Dan for this achievement.

by Dan Rogers

Tougher Penalties for Corporate Crime

The Federal Government has announced it will introduce a new sentencing regime for corporate crime, amending the Corporations Act 2001 to increase both civil and criminal penalties. This arises from an enforcement review taskforce undertaken by ASIC, of which the government has agreed to all 50 of the report’s recommendations.

Why have the Federal Government made this announcement?

In the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the proposal has been widely supported. The Banking Association’s chief executive Anna Bligh described the reform as “vital to tackling criminal and unacceptable behaviour by individuals and corporations.” Financial Services Minister Kelly O'Dwyer said such reforms would align us with leading international jurisdictions, describing the proposal as the most significant increase in 20 years.

What will the penalties be for corporate crime offences?

The reform will see the maximum criminal penalties increase to:

  • For individuals –10 years imprisonment and the greater of a $945,000 fine or three times the benefits gained or loss avoided.
  • For corporations –$9.45 million or three times the benefits gained or 10 per cent of a company's annual turnover if that was larger, capped at $210 million.

The maximum civil penalties will be increased:

  • For individuals - from $200,000 to $1.05 million or three times the benefit gained or loss avoided.
  • For corporations - from $1 million to the greater of $10.5 million, three times the benefit or loss or 10 per cent of a company's annual turnover.

The amendments will also allow ASIC to issue infringement notices for a wider range of financial and investment services as well as grant ASIC greater search warrant powers to assist in prosecuting offences. These powers are in addition to the already extensive coercive powers that can compel interviews as part of an investigation. The proposed reforms will be the subject of consultation later this year.

Allegations of corporate criminal activity, against individuals or companies, can cause severe reputational damage, convictions, large fines and/or terms of imprisonment. Early intervention by an experienced criminal law firm specialising in corporate crime is essential.

For proactive advice about corporate crime, contact our Corporate Crime specialists.

by Dan Rogers

Dan Rogers Presents on ‘Public Perceptions of Sentencing’

Robertson O’Gorman Legal Director Dan Rogers, in his capacity as a member of the Queensland Sentencing Advisory Council, presented at a session on ‘Public Perceptions of Sentencing’ alongside the Honourable Margaret McMurdo AC and Her Excellency the Honourable Kate Warner AC, Governor of Tasmania in the Banco Court.

The forum was prompted by the overwhelming community perceptions that judges and the legal system are too soft on crime, often fueled by the media and politicians playing into this narrative. However, despite this view Australia’s jails are experiencing overcrowding to crisis levels not seen before. Research has found that when jurors are put in the position of a judge, they would often impose a similar sentence on offenders.

Mr Rogers was called upon in light of his expertise in criminal law to address these issues, considering how in touch the legal system and the courts are with community attitudes. The discussion included solutions as to how sentencing in the future can better reflect community values.

The ABC podcast of this forum on public perceptions of sentencing is now available online at https://lnkd.in/fwve46r.

by Dan Rogers

Dan Rogers: Addressing the crossover between family and criminal law

Dan Rogers, Legal Director at Robertson O’Gorman, delivered a presentation at the QLS & FLPA Family Law Residential 2017. He addressed the blurred line between criminal and family law and the importance for practitioners to be aware of the growing crossover between the practice areas.

Domestic violence has always existed. But in the past 5 years, it has assumed unprecedented focus in our community. As a result of various reports and increased media attention, there have been numerous legislative changes of both domestic violence and criminal laws. There is a growing number of crossovers between family and criminal law.

To keep informed of the legislative changes and their impacts, it is extremely important for practitioners to be aware of the legal tools available to them. It should be noted that the Law Society and other organisations are increasingly publishing guidelines to assist practitioners and judicial officers in the application of the law.

The second stage of the comprehensive and detailed National Domestic and Family Violence Bench book was recently released. That resource was developed to bring together key cases and legislation from across Australia. Importantly, it addresses several of the key crossovers between criminal and family law. It can be accessed freely online here.

Another resource recommended by Mr Rogers is the Queensland Law Handbook. Produced by Caxton Legal Centre, the resource provides an overview of criminal law issues written by magistrates, barristers and accredited specialists. The resource is freely available online here.

During his presentation, Mr Rogers addressed the most frequently asked questions by family lawyers to the solicitors at Robertson O’Gorman, namely:

  1. Should you client consent to a domestic violence order?
  2. The other side has brought a domestic violence application – it’s obviously a strategic move. Will the Court recognise this?
  3. Should a cross application be brought?
  4. What are some options to resolve a DV matter?
  5. What are the consequences of a protection order being made?
  6. Is a breach proceeding a serious charge?
  7. My client faces a police application for a protection order. Is this serious?
  8. What are the consequences of a criminal conviction?
  9. The police are at my client’s door – what do I do?

Practitioners from all areas of law should be conscious of the impact their decisions will have on parallel proceedings in other jurisdictions. To avoid blind spots and adverse outcomes for clients, a strong and reliable relationship for referrals and cross-advice should be a priority for every law firm.

Robertson O’Gorman Solicitors specialise in domestic violence and criminal law. For assistance, call us today on 3034 0000.

by Dan Rogers

Dan Rogers: Opinion: Soft sentences? You be the judge

Today's Courier Mail published an opinion article written by Legal Director Dan Rogers. The article addresses community expectations and their role in sentencing. You can read the article here.
For legal advice, call Robertson O'Gorman today on (07) 3034 0000.

by Dan Rogers

Bond University Panel Discussion: Social Justice and the Role of Lawyers

Legal Director Dan Rogers spoke last night at the Bond University Law Wellness Association’s inaugural event ‘Lady Justice in White’. His message to aspiring lawyers was to involve themselves broadly in the law and step beyond the office.

Mr Rogers drew on his experience working at Robertson O’Gorman Solicitors, his role as secretary of Caxton Community Legal Centre, his membership of multiple committees, and his prior experience working at the International Criminal Court in The Hague. During his talk to students, he emphasised the importance of stepping into the public arena and contributing to wider social justice causes. He encouraged students to shape a worthwhile and rewarding career.

The event was in support of the charity “Queensland Indigenous and Family Violence Legal Service”.

For experienced legal advice, call Robertson O’Gorman Solicitors today on 3034 0000.

by Dan Rogers

Studies Into Sentencing Show The ‘Lenient Judge’ Is A Myth

As published in the Courier Mail today, Dan Rogers comments on how studies in to sentencing show the 'lenient judge' is a myth. Original article available here, with the body of the article below. 

SENTENCING occupies a significant space in public debate.

When a criminal court imposes punishment on an offender, the state exerts its authority upon a person who has broken the law.

Fortunately, corporal punishment no longer features in our land. However, every day in Queensland members of our community, from all walks of life, anxiously await sentencing by a criminal court.

The circumstances of the offence and the offender are infinitely varied. On a daily basis, judges and magistrates confront the enormous task of applying intellectual rigour and careful consideration to determine a sentence that is just and fair in the particular circumstances of each individual case.

The judiciary is assisted by a prosecutor (representing the state) and almost always in serious criminal cases, a defence lawyer (representing the individual).

Both roles are vitally important to ensure the process is fair. Last year, there were 236,233 cases finalised as sentences in Queensland’s criminal courts.

In every case, both the prosecution and the defendant may appeal the sentence. The appeal process is a safeguard against a sentence outcome that is manifestly wrong; a penalty that shocks the public conscience.

Only a very small number of sentences are appealed each year. In the same period last year there were only 844 appeals, which represents just 0.4 per cent of finalised cases.

Of those, a much lesser number were successful.

The number of successful sentence appeals is so low because, by and large, the courts get it right.

The law is complex but Queensland’s criminal justice system operates to ensure that, in the vast majority of cases, a just and fair penalty is imposed.

As a community, we only get snippets of this complex process. That is because media reports (or perhaps our attention span) can only be so long.

Time and again, headlines suggest courts are too lenient or judges too soft. These claims encourage “law and order” politics, where unfair and ineffective sentencing policies result from a government’s desire to achieve popularity by appearing “tough on crime”.

When courts are criticised, judges are not allowed to respond or participate in public debate.

This protocol is an important safeguard of judicial independence. By taking on the duty of judicial office, judges forego their right to participate in public debate.

The reality, underpinned by credible research, is that judges and magistrates typically impose harsher sentences than members of the community with full knowledge of the facts.

Kate Warner, a law professor and now Governor of Tasmania, has led important sentencing research in this country.

Her work as the director of the Tasmanian Law Reform Institute asked real jurors, who had convicted a person in a real criminal trial, to deliver a sentence.

The research project was large: 987 jurors from 124 criminal trials from the County Court of Victoria in the period 2013 to 2015.

It followed a previous study conducted in Tasmania between 2007 and 2009 with 698 jurors.

The jurors in the study had the opportunity to know all of the circumstances of the offence and of the offender.

The study found that 62 per cent of jurors would have imposed a more lenient sentence than the sentence ultimately imposed by the court.

In child sex offending trials, there was a more even split between the sentences imposed by the jurors and the court.

Jurors were less likely to be more lenient in sentencing cases involving victims aged under 12 years.

However, jurors were more likely to be lenient in violent trials, with 71 per cent submitting softer sentences than judges.

This research challenges prevailing community perceptions that sentences are overly lenient and out of step with community expectations.

This research is also very helpful to governments who are asked to consider policy decisions that result in sending more people to prison and for longer.

Above all else, this research shows clearly the need to educate and inform the community around sentencing practices.

And this is one of the key tasks of the Queensland Sentencing Advisory Council, newly reinstated by the State Government.Dan Rogers is the Legal Director of Robertson O’Gorman Solicitors and a member of the Queensland Sentencing Advisory Council.

Dan Rogers 

by Dan Rogers

Robertson O'Gorman Prize in Criminal Law

(Pictured Dan Rogers, Jordan English, Chief Justice Catherine Holmes and Professor Peter Høj).

Robertson O’Gorman is a proud sponsor of the University of Queensland Law School. Each year the law school recognises the brightest legal minds through awards to its top performing students.

This week at Customs House, Dan Rogers presented The Robertson O’Gorman Prize in Criminal Law at the UQ Law Awards Ceremony. Robertson O’Gorman sponsors two prizes for students that receive the highest marks in Criminal Law.

The event included a key note address by Chief Justice Catherine Holmes of the Supreme Court of Queensland. Jordan English and Elizaveta Belongogoff won the Robertson O’Gorman prizes.

This year, the law awards were extra special for Robertson O’Gorman as Keilin Anderson, law clerk in our office, received a Pro Bono Centre Award. This is a great achievement as pro bono legal work is an important responsibility for all in our profession.

A full UQ media release can be found here.

by Dan Rogers

Dan Rogers co-chairs Human Rights Debate

Dan Rogers co-chaired with Kevin Cocks AM a debate last night regarding the introduction of a Human Rights Act in Queensland. Hosted by the Queensland Law Society, the event was attended by local lawyers and students.

After last year’s state election, consideration of a Human Rights Act was a key commitment given by Labor in return for Peter Wellington’s support in a hung parliament. Since that time, a broad and dynamic group of community organisations, social justice groups and individuals have been advocating for the introduction of legislative protection of human rights.

In September 2015, the Caxton Community Legal Centre hosted a forum at Parliament House. It was effectively a campaign launch by interested community groups. Ms Yvette D’Ath (Attorney-General) and Ms Jackie Trad (Deputy Premier) spoke alongside various community leaders including Mr Cocks.

At that event, the Attorney General committed to an inquiry and subsequently referred the issue of a Human Rights Act to the Legal Affairs and Community Safety Committee. That committee is due to report to Parliament by July this year. It is expected that public hearings will occur in early May.

The issue of a Human Rights Act can be divisive. It is one where reasonable and intelligent minds can differ. They can differ on whether a statutory model is needed or whether the common law is sufficient to safeguard our rights.

Human rights mean different things to different individuals. For some, invoking such rights is a heartfelt and justified demand to rectify a form of injustice. For others, any reference to human rights is but a slogan to be treated with a degree of cynicism.

Many in the community regard human rights lawyers as the Amal Clooney type. They have a sexy image of someone jet-setting around the globe wearing Prada and arguing cases before international courts and tribunals. The reality is somewhat different and many lawyers also fail to recognise it.

All lawyers are human rights lawyers. We protect the rights and interests of our clients on a daily basis whether it’s the right to property, to fair trial or to safety and security in a domestic violence proceeding. Lawyers working in the community legal sector are exposed to human rights issues even more frequently. This reform could affect the practice of all lawyers significantly.

Generally speaking, it is common ground that the protection of rights is a good thing. However, the mechanism by which this is achieved is debatable. Legislative protection of human rights exists in Victoria, the Australian Capital Territory, New Zealand and the United Kingdom. There are also constitutional or entrenched models in the United States and Canada, although Queensland is not considering an entrenched model.

The idea of a Human Rights Act is, therefore, not a new concept. There is a body of literature and careful analysis to inform us as to its successes and failings. It is hoped that the Government’s inquiry will carefully consider this material and provide a clear and positive direction for the protection of human rights in Queensland.

by Dan Rogers

The Right to Protest: Baby Asha and the Lady Cilento Hospital

On Friday, 18 March 2016, Dan Rogers appeared in the Brisbane Magistrates Court on behalf of four people charged with the offence of ‘unregulated high risk activity’. These people had been involved in abseiling from the Goodwill Bridge earlier this year. All four plead guilty to the charge and received a community service order with no conviction being recorded.

In a democratic society, the right to protest is as important as the right to vote. Public protests are a way for the general population to express their disagreement with the actions of the executive or the parliament. In most cases, Australian protests are very safe and peaceful. There are, however, a number of laws which attempt to limit protests.

In pleading guilty, the clients acknowledged that they broke the law. However, their actions were motivated by uncovering human rights abuses in Australian immigration detention centres. In an area where government employees are prosecuted for releasing information, the right to protest and incite public debate on this issue is increasingly important.

by Dan Rogers

The Age of Criminal Responsibility in Queensland

Queensland’s age of criminal responsibility is 17; a whole year younger than the other states in Australia. This difference and the consequences it has on Queensland’s youth is deeply concerning.

Children under the age of 10 cannot be charged with a criminal offence. Between 10 and 14, there is a presumption that the child is not criminally responsible – but this can be rebutted if the prosecution can prove the child knew that what they were doing was wrong. Once a child turns 15, they are presumed to be criminally responsible for their actions as a juvenile offender.

These rules are the same across all Australian jurisdictions. However, in Queensland, unlike any other State or Territory, a 17 year old is not considered a juvenile offender but rather, an adult offender. This is a significant discrepancy that ought to be addressed by our State Government.

Young people are still undergoing important brain development, and both behavioural psychology and neuroscience attest that adolescents are less able to control their impulses, plan ahead, and weigh the consequences of their decisions before acting. This, and their susceptibility to peer influence, means that young people are attracted to novel and risky activities and may become involved in criminal behaviour. When this occurs, the solution is rarely a jail term.

Jails are not a good place for rehabilitating adults. For children, they are even worse. Studies have shown that prisons are like ‘crime universities’ for young people. The Australian Institute of Health and Welfare have released statistics that state that 71% of young people in detention between 2010-11 had returned to sentenced supervision within one year, and 91% had returned within two years. Youth justice should focus on rehabilitation to ensure that young offenders don’t become adult offenders.

It is not all doom and gloom! The impressionability of young people also means that they are receptive to positive interventions and can be guided to a better path. Diverting young people from formal court processes and from prison environments is most important. Rehabilitation must assume primary importance when dealing with young people.

We live in a modern world where a great volume of scientific evidence points to the conclusion that 17 year olds (and even those older than this) should not be considered criminally responsible to the same extent as adult offenders. Furthermore, we have the resources and professionals required to implement effective rehabilitation programs. These options should be made available to 17 year olds.

The Newman Government removed a provision in the Youth Justice Act which made imprisonment a last resort for young offenders. Fortunately, the Palaszczuk Government has announced that they will act on their election promise to repeal these laws. However, the current Queensland Labor Government has an opportunity to make further changes to the law which could bring Queensland in-line with the other jurisdictions in Australia.

Children occupy a very vulnerable space in our society. They are often voiceless, and even invisible, when arguments are fought over them. Protections such as increasing the age of criminal responsibility are key steps in securing justice for these people.

Robertson O’Gorman represents young people charged with criminal offences. Call us today on 3034 0000.

by Dan Rogers

A Human Rights Act: What it is and why we need one in Queensland

Dan Rogers, Legal Director at Robertson O'Gorman, is also the chair of the Queensland Law Society's Human Rights Working Group.

To check out a new article  written by Dan about why now is the time for a HR Act in Queensland follow this link.

To find out more about a HR Act for Queensland head to http://www.humanrights4qld.com.au/

Queenslanders have until 18 April 2016 to make submissions on the issue.

by Dan Rogers

Attorney-General set to repeal LNP youth justice reforms

This week, the Queensland Government introduced a Bill to repeal various youth justice reforms introduced by the former LNP government. This is a most welcomed move and the Government deserves true recognition for delivering on its pre-election commitment to repeal these ill considered laws. The Government’s media release can be found here.

The Government’s Bill will reintroduce the principle of detention as a last resort for children. It will also remove the provisions that allow for the identification of young offenders and for childhood offences to be admitted in adult sentencing proceedings. This change will help our State realign itself with international standards and norms concerning the treatment of children.

Young people occupy a vulnerable place in our society. They are still undergoing important brain development, and both behavioural psychology and neuroscience attest that adolescents are less able to control their impulses, plan ahead, and weigh the consequences of their decisions before acting. It is for the above reasons that international law has promoted the establishment of separate juvenile justice systems which treats young offenders differently to adult offenders. Diverting young people from formal court processes, form labels and from prison environments is most important.

This week’s Bill is very positive and, indeed, heartening news for someone who regularly acts for children facing the criminal justice system. It is also encouraging to see that the Government is continuing to consult on another important reform. That is; increasing the age of a Queensland adult from 17 to 18 years consistent with every other State and territory in this Country. I appreciate the difficult logistics of this change but this additional reform should occur as soon as possible.

Queensland is unique in treating 17 year olds as adults in the criminal justice system. In 2011, the Queensland Court of Appeal noted that “Queensland is now the only Australian jurisdiction where 17 year old offenders are dealt with, contrary to the Convention, in the adult criminal justice system and so can be sent to adult correctional facilities.  In all other Australian States and Territories, offenders under the age of 18 are sentenced within the youth justice system and are placed in youth detention centres.  This Queensland anomaly has been criticised by commentators who argue that Queensland is in breach of its obligations under the Convention.” (R v Loveridge [2011] QCA 32, [6])

By increasing the age of an adult offender to 18 years, less 17 year olds would be exposed to adult correctional centres. This is a good thing. The Queensland Court of Appeal has, for a long time, recognised that an adult jail is unlikely to have any rehabilitative effect and is in fact harmful in that it introduces young people to hardened criminals whom they might not otherwise meet and to hard drugs and it may subject them to the risk of injury or degrading conduct (R v Hamilton [2000] QCA 286).

As a society, we should be very careful to not allow children to become the subject of ‘law and order’ political campaigns. They deserve much, much better. These reforms show a great preparedness of Government to rise above such rhetoric.

by Dan Rogers

A Human Rights Act for Queensland

Now is the time to introduce a Human Rights Act in Queensland.

Dan Rogers, chair of the Society's Human Rights Working Group and solicitor at Robertson O'Gorman.

This is an opportunity for the Labor government to show Queensland that they wish to protect the rights of individuals in the community.  It is a matter of high principle that can be achieved at almost no cost. I understand that the government’s priorities are pre-election commitments but at this point in time, there is a unique opportunity for Labor to show its capacity as a reformist government capable of big picture ideas.

Labor came to power in a historic landslide. This was achieved, in part, by what many saw as the excesses of the Newman government. This is fresh in people’s minds. Through a Human Rights Act, Labor has the capacity to show it is better than this. Labor can protect Queenslanders now and into the future.

What is a Human Rights Act?

A Human Rights Act is a statute.  It is not an amendment to a constitution.  It is therefore not entrenched.  It can be changed or appealed at a future point. Parliamentary supremacy is an important principle and it stems from the fact that members of parliament are elected individuals and, as such, best represent the views of the community.  A Human Rights Act does not impede upon the parliamentary supremacy in our democratic society.  It does not stop governments pursuing good policy.  It does not stop governments introducing laws that affect rights.

The reality is that all rights have limits and in most situations there are, in fact, competing rights.  A Human Rights Act is simply a statement by the government that it supports fundamental human rights and that those rights will be considered by government in the introduction of new legislation and in policies.

A Human Rights Act exists in the ACT, Victoria, the UK, Canada, and New Zealand. In those jurisdictions, the sky has not fallen. Rather, people’s lives have improved. The temptation for those in Government with this issue would be to dismiss it on the basis that existing safeguards are already in place. This would be a disservice to our community. There are numerous human rights issues in Queensland – among them the lack of mental health services in rural and remote areas, the availability of appropriate public housing, the treatment of older people in nursing homes, domestic violence and the ability of children with disability to access education.

If you believe that Queensland would benefit from human rights protections, please voice your support for this reform by contacting your local Member of Parliament.

by Dan Rogers

Queensland Law Handbook

The 12th edition of the Queensland Legal Handbook is available from the Caxton Legal Centre website. Caxton Legal Centre provides important community legal services in Brisbane.

The latest edition includes a stand alone chapter on Queensland traffic offences authored by solicitors Dan Rogers and Emma Higgins.

If you need advice or representation in relation to a traffic offence, give them a call.

by Dan Rogers

G20: Police Powers & Dissent

The G20 Safety & Security Act 2013 will govern the G20 summit which is to occur in Brisbane later this year.

Dan Rogers presented the following speech at the Banco Court about the laws and their impact on protesters and the public.

To have a read of Dan's speech follow this link: G20: Police Powers & Dissent.

by Dan Rogers

Stop Violence with a Domestic Violence Order

There are many frustrating myths about what “domestic violence” means or whom it affects. The truth about domestic violence is that it affects people of all classes, cultures, religions, ages and gender and it includes all kinds of behaviours which are in no way limited to physical violence.

Any person who is in or was previously in a de facto, intimate, couple, marital, family or informal care relationship can apply for a temporary or final protection Order.

If you are the victim of emotional, psychological, financial, physical or sexual abuse, or behaviour which is controlling, intimidating, harassing, or you are being stalked by someone you are in need of protection.

You are able to apply to your local Magistrates Court for a Protection Order.  Being an aggrieved person you are able to and are encouraged to report the matter to the police.  The police are required to hear your complaint.  They may then file an application on your behalf.  The police in those circumstances will represent you in Court or you can engage a private lawyer to act for you.  You are also able to engage a private lawyer to assist you in filing an application.  A private lawyer such as Robertson O’Gorman Solicitors will then advise you and represent you in Court.

There are instances where applicant clients engage us after being told by the police that they will not file an application on their behalf and have suggested that the applicant file their own application.  We have found that the reality in practice is that the police will not always assist an aggrieved person. You should not be deterred by the police telling you that they will not assist.  Frequently the unwillingness of the police to assist in no way reflects the merit of the application itself.  If you do not wish to have the police assist you or if they will not, we are able to assist.

Very often our applicant clients engage us when things have become escalated and are “out of control”.  It is important to take action at an early stage in order to ensure that you and others are protected from domestic violence.

The law in Queensland maximises safety, protection and wellbeing and works to prevent and reduce exposure to violence rather than only being applied where there is extensive evidence of domestic violence.

We are frequently told by our clients that they did not take action earlier because they felt as though they were responsible for causing the violence, or because they felt embarrassed about their situation, or felt as though they were powerless to make it stop.

The most empowering tool available to you is knowledge.  We work in a holistic fashion to advise our clients in full about their rights and options so that they can make informed decisions at an early stage.

In some circumstances urgent Orders can be obtained without the other party being present in Court with you.  There are also safety areas provided in Court to ensure that you do not come into contact with the respondent.

You are able to apply for an Order which in effect forces someone to leave a property or prohibits them from approaching you at any place that you are.  You can also seek an Order preventing contact with your family members and friends in some circumstances.

The Order itself is a protective mechanism imposed by the Court in a civil jurisdiction.  Once an Order is in force the Police can then be contacted if there is a breach of the Order.  A breach is considered a criminal offence and serious consequences flow to the person who has breached the Order.  The criminal law ramifications mean that perpetrators of ongoing domestic violence are held accountable for their actions.

Act protectively now to stop violence from occurring or continuing down the track.

by Dan Rogers

Tragedy Looming

Within the next few months a 17 or 18 year old will do something stupid enough to be convicted for drug trafficking in Queensland. We like to pretend otherwise, but drugs are almost as commonplace to the party scene for our young people as alcohol has been for their parents. However drugs are illegal and politicians keep ramping up the penalties to buy popular support by appearing to be ‘tough on crime.’

The Queensland Parliament will shortly pass a law which requires anyone sentenced to serve time in prison for drug trafficking to serve 80% of their term of imprisonment in jail. This will be the mandatory minimum. The courts will have no discretion to impose a lesser term. Some will think that this type of punishment is fitting, and it may be in the worst case scenario of an organised crime boss being again convicted for making millions by ruthlessly pumping kilograms of drugs onto the streets of Queensland. The problem is that the same law will put a 17 year old in an adult jail for 80% if his or her term of imprisonment for selling ecstasy pills in a nightclub over a few weeks to impress their mates and maintain their own addiction. They cannot escape this rule despite their youthful immaturity or because they were manipulated by others.

Politicians claim that mandatory imprisonment will deter offenders. If it did we may
not be so concerned because few would be caught up in them. But tragically the law will ensnare someone who is today a 16 or 17 year old Queensland school student believing they are bulletproof and out to make a quick buck. Once they are sentenced to serve actual time in prison, the 80% rule will rob them of a second chance, time to ‘grow up’ or prove themselves away from the influence of their peers – and their future opportunities will instead be shaped by those they meet in prison.

Please share this story with other students and young people as widely as possible.   If it deterred someone from drug trafficking that would be great. But when the injustice of this mandatory regime starts destroying lives our politicians must be held accountable for their populist policies.

by Dan Rogers

Community Notification of Sex Offenders

Why Queensland must not Implement Community Notification of Sex Offenders. 

Dan Rogers writes on the proposed implementation in Queensland of a community notification of sex offenders program.

Community Notification of Sex Offencers 

The Courier Mail, 25 June 2013: Terry O'Gorman Comments on the proposed implementation in Queensland.

Qld Govt seeks public sex offender register

ABC, 25 June 2013: Terry O'Gorman comments on the proposed implementation of a sex offender register in Queensland.

by Dan Rogers

Criminal Responsibility

Double Jeopardy - Resolving the Conflict between Competing Rights and Interests 

Article by Dan Rogers

Read Full Article

Double jeopardy is commonly regarded as the process by which a person is put in peril of conviction more than once for the same offence.   It is regarded as a fundamental human safeguard against oppression by the State. The rule has existed in the English common law since the twelfth century. Despite this rich history, recent events have shown how vulnerable the rule is to the legislative whim of national and international communities. Many States have now introduced legislation allowing for exceptions to this long-standing rule. The international community, particularly the United Nations Human Rights Committee, has also shown preparedness to weather away the rule under limited circumstances. It is this background of reform which has seen an increased debate, and an influx of literature, about the rule against double jeopardy.

The erosion of any fundamental human right is concerning and requires close analysis. However, the abrogation of this principle has been welcomed by politicians seeking to ‘cash in’ on the law and order debate. Notwithstanding the concerning political climate which has fuelled reform, it is fanciful to think that certain rights are so paramount that there can never be circumstances in which they should be limited.
This paper will argue that a limited exception to the rule against double jeopardy is acceptable under international human rights law and where strict control mechanisms are in place, it constitutes a rational and acceptable abrogation of a human right.

by Dan Rogers

Review of Police Move-On Powers

Crime and Misconduct Commission - Review of police move-on powers (2011) 31 Qld Lawyer 31 

Article by Dan Rogers regarding amendments to police move-on powers.

by Dan Rogers

PPRA Amendment 2011 - Pat-Down Search of Minors

Transcript of Parliamentary Committee Public Hearing 

Dan Rogers appeared at the public hearing on the police powers amendment where amendments such as pat-down searches of minors are being proposed.

by Dan Rogers

Mental Health

Out of Sight, Out of Mind: Mentally Ill in Queensland Correctional Centres 

Article by Dan Rogers about mental health in prisons

by Dan Rogers