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