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:
- the nature of the right and the nature of the breach;
- whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
- whether other investigatory techniques were available but not used by the police;
- the reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
- the seriousness of the crime; and
- 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].
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].
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].
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:
- Inherent time requirements of the case
- Actions of the accused
- Limits on institutional resources, and
- 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].
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.
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
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]
- 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]
- 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.
- If more than one potential meaning is evident, determine if the potential meanings limit one or more Charter/HRA rights:
- If only one potential meaning places no limits on any Charter/HRA rights, than that meaning should be given to the provision;
- 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;
- 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)
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!
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.
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:
- Human Rights Act 2019 (Qld) passed for Queensland
- Right to a Fair Hearing
- Humane Treatment when Deprived of Liberty
- Criminal Proceedings
- Freedom of Expression and Freedom of Assembly
- Queensland Human Rights Commission