PROPOSED MEDIA SHIELD LAWS

The Queensland Government and Opposition have jointly committed to develop shield law that protect journalists from being compelled to reveal their confidential sources. The proposal comes after the Attorney-General Yvette D’Ath withdrew legislation that would impose jail terms or significant fines on journalists who report on corruption allegations made to the CCC during state elections.

Queensland is the only state in Australia that has not enacted these laws, and this commitment has been welcomed by various groups like the Media, Entertainment and Arts Alliance (MEAA), as well as lawyers like Terry O’Gorman and Justin Quill. Without the proposed shield, journalists are exposed to prosecution for contempt if they refuse to reveal their sources.

Terry O’Gorman spoke to the Courier Mail regarding the proposed laws, stating that while these laws were long ‘overdue’, the drafting of the legislation should not be left to the government due to the risk of politicisation. The position is that the government of the day should not be drafting legislation that is likely to be utilised to criticise the government itself.

Mr O’Gorman further commented that it is necessary that any proposed legislation account for the fact that journalists should be required to disclose their sources in certain criminal cases where it is ‘in the interest of justice’.

Associations like the MEAA continue to lobby for uniform legislation at the Commonwealth level that addresses the existing disparities between state shield laws.


CORONAVIRUS, THE LAW AND COMPLIANCE WITH SELF-ISOLATION AND QUARANTINE RULES

CORONAVIRUS, THE LAW AND COMPLIANCE WITH SELF-ISOLATION AND QUARATINE RULES

We are all well aware that more and more of us are being told to self-isolate due to the spread of novel coronavirus (COVID-19). Governments are readily imposing shutdown measures across Australia to curb the spread of the virus, with the closure of borders, the banning of gatherings, forced closure of pubs and clubs, entertainment venues, gyms, indoor places of worship, sporting venues, you name it.

What we have also been noticing is that some people have not been taking these directions as seriously as others.

In Italy for example, more than 40,000 have been charged for violating the lockdown since the national quarantine was imposed on 9 March 2020.

In Australia, we are seeing specific police taskforces assembled dedicated to enforcing the shutdown measures.  A multiagency taskforce was announced for Queensland with police commencing compliance checks in entertainment precincts.

So where do these powers come from?

Biosecurity Act 2015 (Cth)

On 18 March 2020, the Governor-General declared that a human biosecurity emergency exists.  This declaration was made under section 475 of the Biosecurity Act 2015 (Cth) and is the first time that the powers under the Biosecurity Act have been used.

The Biosecurity Act provides the Health Minister with very broad powers, including any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of the declaration listed human disease in Australia.[1]  These powers are subject to safeguards that the requirement must be “likely to be effective”, is “appropriate and adapted” to its purpose and is “no more restrictive or intrusive than is required in the circumstances”.[2]

This includes the power to impose general requirements on people entering or leaving specific places, to restrict or prevent the movement of people within places and to evacuate places.[3]

Further, specific officers can make a “human biosecurity control order”[4] to require individuals to do or not do certain things, including:

  • Requiring a person to provide their contact information and health details including body samples for diagnosis;
  • Restricting a person’s behavior including restrictions on movement;
  • Requiring a person to isolate from the community for specific periods of time;
  • Requiring a person to undergo other risk-minimisation interventions including wearing protective equipment;
  • Requiring a person to undergo decontamination and/or undertake treatment. [5]

There is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that a person is or may be infected for a control order to be issued.[6]

If a person does not consent to a control order, the Biosecurity Act provides a power for the Director of Human Biosecurity (the chief medical officer) to compel them to comply.[7]

What happens if you don’t comply?

A person who fails to comply with any requirement or direction made pursuant to the powers under the Biosecurity Act may be charged with a criminal offence.

Offences for failing to comply carry maximum penalties of five years imprisonment or 300 penalty units (approximately $63,000), or both.[8]

The same penalties apply to a person who fails to comply with a control order.[9]

In some cases, a person may be detained by police, particularly in the instance that a person refuses to comply with a requirement to stay at a particular place to isolate themselves.[10]  Escaping from detention is a criminal offence and the same penalties above apply.[11]  However, the Attorney-General has stated that detention of individuals is intended as a “last resort”.

Public Health Act 2005 (Qld)

There are similar separate ‘emergency powers’ under State law allowing an officer responding to a declared public health emergency to direct a person to do, or refrain from doing, certain things.[12]

These powers are in line with the National law and include directing people to stay in their home, or another isolation area.  It also includes directions to an owner or operator of a business to close or limit visitor access for a specified period.

It is criminal offence for a person not to comply with the requirement or direction.  The maximum penalty is 100 penalty units (approximately $13,345).[13] Further, an officer may under certain circumstances take action to enforce the requirement or direction.[14]

There is no doubt that these measures at both the National and State level have the potential to significantly impact upon a person’s liberty, including the obvious restrictions on movement and self-isolation requirements.

The next blog in this series will discuss the human rights and civil liberties concerns stemming from these extensive powers under Commonwealth and State law.

[1] Biosecurity Act 2005 (Cth), ss 477, 478.

[2] Biosecurity Act 2005 (Cth), ss 477(4), 478(3).

[3] Biosecurity Act 2005 (Cth), s 477(3).

[4] Biosecurity Act 2005 (Cth), s 60.

[5] Biosecurity Act 2005 (Cth), ss 85-97.

[6] The officer does have to be satisfied as to the principles provided for in Biosecurity Act 2005 (Cth), s 34.

[7] Biosecurity Act 2005 (Cth), s 72.

[8] Biosecurity Act 2005 (Cth), s 479

[9] Biosecurity Act 2005 (Cth), s 107.

[10] Biosecurity Act 2005 (Cth), s 103.

[11] Biosecurity Act 2005 (Cth), s 106.

[12] Public Health Act 2005 (Qld), s 345.

[13] Public Health Act 2005 (Qld), s 346.

[14] Public Health Act 2005 (Qld), s 345(3).


Corporate surveillance and Facebook

Following a report in the Daily Mail (Australia) in late December 2019 that Facebook is watching Australians as they shop at physical stores to target them with ads thanks to shops sharing data with Facebook, it has been claimed that under current Australian laws there is no way for the average Australian to escape this form of corporate surveillance.

In an interview with Channel 10 on Monday, 6 January 2020 Terry O’Gorman said that while theoretically users can opt out of being targeted by Facebook in this manner by selecting ‘ads’ in Settings in reality a significant law change was needed on a national level to deal with the increasing surveillance of Australians by tech giants such as Facebook and Google.

Terry O’Gorman told Channel 10 that in July 2019 a final report from Australia’s competition watchdog (the Australian Competition and Consumer Commission), Federal Treasurer Josh Frydenberg is now considering the ACCC’s proposal for a significant crackdown on Google and Facebook in Australia.

Terry O’Gorman told Channel 10 that tech companies are collecting personal data from the average Australian through the widespread possession and use of mobile phones without people knowing that is occurring.

US technology firm Oracle indicated recently that users are unwittingly uploading a gigabyte of data for Google to analyse.

Terry O’Gorman told Channel 10 that the legislation that will flow from the Australian Competition and Consumer Commission’s July 2019 report should be expanded to ensure that there are significantly increased penalties for breaches of privacy laws by tech giants.

Mr O’Gorman told Channel 10 that Facebook is currently the subject of a US investigation in relation to an alleged breach of US anti-trust law.

In Australia the head of the ACCC was quoted late last year that “there is no way in the world I would have a Google Home or the equivalent in my home”.

Mr O’Gorman said that there needed to be a national strengthening of privacy laws following the ACCC’s July 2019 report as regulating the might of overseas tech giants to protect the privacy of individual Australian’s was a task beyond the power of any individual State or Territory.


FEDERAL FACIAL RECOGNITION SCHEME

It was welcome news this week that Federal Parliament’s Joint Intelligence Committee has sent the proposal for a National Facial Recognition Scheme back for fundamental redrafting.

In an unusual move described as the first occasion since 2002 the Coalition and Opposition members of the Committee voted on Thursday, 24 October 2019 to send the Bill back for redrafting to ensure that there were proper accountability and privacy mechanisms put in place in respect of the Scheme.

Opponents of the Bill which included the Law Council of Australia, the Human Rights Law Centre, Digital Rights Australia and the Queensland Council for Civil Liberties submitted to the Committee that expanding identity matching could represent a gross overreach into the privacy of everyday Australians.

Liberal MP Andrew Hastie, Chair of the Committee, said that “the Committee acknowledges the (privacy and accountability) concerns and believes that while the Bill’s explanatory memorandum sets out governance arrangements such as exist in contemplated agreements and access policy, they are not adequately set out in the current bill”.

Shadow Attorney-General Mark Dreyfus said that the unusual bipartisan rejection of the Bill was on the basis of a lack of adequate safe guards.

One of the safeguards proposed was a Biometrics Commissioner.  Such a body exists in the UK and has since 2012 where it was established under the Protection of Freedoms Act 2010 (UK).  The UK Biometrics Commissioner is independent of government and it provides independent oversight in respect of data similar to the proposed Australian facial recognition database in the UK.

The Department of Home Affairs in its submission to the Federal Committee opposed the creation of a Biometrics Commissioner.

The background to the Bill is that in late 2017 the Federal Coalition government then under Malcolm Turnbull announced plans to incorporate State and Territory Government drivers’ licence photos in a large facial recognition database to be used by a range of agencies including law enforcement and other government departments.

The Human Rights Law Centre submission to the Committee was to the effect that “the facial recognition scheme effectively hands control of powerful new forms of surveillance to the Home Affairs Department with virtual carte blanche to collect and use some of the most sensitive personal data.  The laws are a recipe for disaster and they put at risk everyone’s privacy and contain no meaningful safe guards” the Centre’s submission to the Committee stated.

All State and Territory drivers’ licences will be scanned into a Federal database managed by the Department of Home Affairs whose Minister Peter Dutton is notoriously unsympathetic to civil liberties and privacy concerns that are constantly expressed in relation to the operation of his portfolio.

The Home Affairs opposition to the safeguards and accountability mechanisms which were agreed to in the bipartisan call by the Committee to rewrite the legislation is another indication that Home Affairs want great power without adequate controls.


Forensic science in criminal cases

In the Sydney Morning Herald of 2 September 2019 Justice Chris Maxwell, President of the Victorian Court of Appeal said there was little proof that forensic techniques including gunshot analysis, footprint analysis, hair comparison and bite mark comparisons could reliably identify criminals.

He called on governments around Australia to urgently change the law so that Judges had to consider the reliability of forensic evidence before it was shown to juries and in that regard he referred to a 2016 High Court ruling that has meant that Judges cannot stop evidence from being shown to the jury over concerns of reliability.

In 2016 a major US Presidential Task Force on forensic science produced a report to the President asserting that 5 major forensic science techniques either do not work or have no strong evidence proving they work.  These related to the areas of matching a bullet to a gun, footprint analysis, hair comparison, DNA analysis of mixed samples, and bite mark analysis.

Forensic science in criminal cases depends for its effectiveness and credibility on the independence and scientific rigour of those called to give forensic evidence.

Forensic scientist Dr Mark Reynolds in commenting on the 2016 report has said,  “There was a lot of lip service given to that report but there was no palpable change.  Nothing has changed.  In my opinion it has gone backwards.”[1]

Relevantly, Dr Reynolds who was in charge of scientific quality in the Western Australian Police Force forensic science team and who retired in 2017 noted that scientists are supposed to objectively study evidence but most forensic scientists are police officers.

Dr Reynolds said, “The police hypothesis is to prove that a suspect did it.  The underpinning ethos is mutually exclusive.”[2]

More recently in May 2019 the House of Lords Science and Technology Committee called for urgent reforms to forensic science saying a crisis in forensic science has brought some of the country’s largest laboratories to the brink of collapse.[3]

Forensic science has been a consistent recurrent cause of miscarriages of justice over the last 30 years in Australia.  In 1980 Lindy Chamberlain was convicted of the murder of her young baby Azaria on the basis of supposed scientific evidence showing that red streaks under the glove box were arterial blood from Azaria when she was stabbed by her mother.  The Commission of Inquiry that was set up after the High Court rejected Chamberlain’s appeal found that the red streaks were derived from sound deadener paint sprayed on the glove box and other internal areas of the car when the vehicle was manufactured in the Opel car factory in Germany.

30 years later in May 2019, Victorian public servant David Eastman was found not guilty by a jury in a retrial after he had served 20 years in jail for the murder of Australian Federal Police Assistant Commissioner Colin Winchester.  A Commission of Inquiry set up to review Eastman’s conviction found that gunshot residue evidence that had been led in his trial was unreliable and should not have been used.

In Victoria, there is now a practice note listing standard questions that must routinely be asked of forensic witnesses after concerns were raised that forensic experts were not being properly questioned by both prosecutors and defence lawyers in Court.  As well, when fingerprint evidence is being led in Victorian Courts, the same Victorian practice note requires so-called fingerprint experts to tell the jury of the percentage error rates of fingerprint evidence.

It is high time that Victorian Court of Appeal President Maxwell’s call is implemented namely for governments around Australia to urgently change the law so that Judges have to consider the reliability of forensic evidence before it is shown to juries not only around the country but also particularly in Queensland.

[1] The Age “CSI not so scientific: Doubt cast on veracity of forensic evidence” by Liam Mannix August 18, 2019

[2] Dib.

[3] 1 May 2019 The Guardian (UK) Hannah Devlin, Science Correspondent


Doyle's Guide 2018

Robertson O’Gorman Solicitors have again been featured as a First Tier Queensland Criminal Defence Firm in the 2018 Doyle’s Guide. The list, released on 20 July, can be accessed here.

 

Robertson O'Gorman's Terry O’Gorman has also been recognised as a preeminent Queensland Criminal Defence Lawyer by the 2018 Guide, one of only four lawyers to attain this ranking. Legal Director Dan Rogers and Senior Consultant Leigh Rollason were recognised as leading Queensland Criminal Defence Lawyers. This list 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!


Doyles Guide: Leading Criminal Defence Lawyers 2017

Terry O’Gorman and Dan Rogers have been named as leading Australian Criminal Defence Lawyers by the 2017 Doyles Guide. This makes them two of only six Queensland lawyers to make the list.

Robertson O’Gorman is the only Brisbane based firm with two solicitors listed.

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!


Doyles Guide: Leading Criminal Defence Firm 2017

Robertson O’Gorman Solicitors have again been featured in Doyle’s Guide as one of Queensland’s Leading Criminal Defence Firms in 2017. The list, released on the 3rd August, can be accessed here.

This list is compiled by fellow criminal lawyers and barristers, and recognises the expertise of our firm’s criminal defence lawyers, listing Robertson O’Gorman as a First Tier firm.

Congratulations also goes to Robertson O’Gorman’s Director, Terry O’Gorman, who was listed in the preeminent list of Queensland’s Leading Criminal Defence Lawyer’s in 2017. Legal Director Dan Rogers also featured as a leading criminal defence lawyer, with the list recommending consultant Leigh Rollason’s expertise as well. This list can be accessed here.


National Domestic Violence Bench Book: Stage 2 Released

The second stage of the National Domestic Violence Bench Book was released on 16th June 2017.The project has been funded by the Federal Attorney General’s Department and supported by the Australasian Judicial Administration Institute as part of The National Plan to Reduce Violence against Women and their Children 2010 – 2022. It will not only guide legal practitioners, but also assist those supporting victims of domestic and family violence. It is publicly accessible here.The Bench Book includes new sections on family law, protection orders, evidence and bail. It is user friendly through a searchable database providing summaries from cases across various Australian jurisdictions, and highlighting legislation from across Australia.The Bench Book has been endorsed by many including Chief Magistrate Orazio Rinaudo AM, who described it as an invaluable tool for judges, prosecutors and lawyers.

Robertson O’Gorman Solicitors are a specialist firm practicing in domestic violence and criminal law. We appear for applicants and respondents in domestic violence proceedings.


Online comments about Judges

As Ministers in the Turnbull Government are before the Victorian Court of Appeal to show cause why they should not be dealt with for contempt for comments made about a currently reserved case in that Court including accusing Judges of being ‘ideological’ and failing to apply the law, two recent other contempt cases are illustrative.

On 21 January 2016 Troy La Rue appeared in the New Plymouth District Court in New Zealand before Judge Allan Roberts to be sentenced for unpaid fines amounting to $6 244.00.  Upon being sentenced to 300 hours of community service in substitution for payment of the fines Mr La Rue was presented with a printed page containing a comment he had made just over a week earlier on social media regarding the story about Judge Roberts’ retirement.  After some prompting, Mr La Rue read aloud “LOL I hope the fuckers gone by Friday.  Ha ha.  Fucker, nah fuckin cunt his old face and saggy chin.  Fuck off”.  After confirming that the subject of the comment was indeed Judge Roberts, Mr La Rue apologised and acknowledged he had been caught out.   

In this example the serendipitous appearance of Mr La Rue before Judge Roberts provided an opportunity for the comment, which was entirely unconnected to any proceedings, to be addressed.  Such a comment can be classified as gratuitous nastiness and forms one end of the spectrum upon which on line comments about judicial officers may fall.

Towards the higher end of the spectrum is the example provided in the UK case of Daniel and Samuel Sledden.    On 16 February 2016, these two brothers were each sentenced to a term of imprisonment of two years, wholly suspended for drug offences.  Forty minutes later, 27 year old Daniel Sledden posted a status to Facebook expressing his disbelief at how lucky he was to have escaped a custody sentence that finished with an invitation to Judge Beverley Lunt to “go suck [his] dick”.  Samuel Sledden, aged 22, comments on the remark shortly after they were posted reflected his brother’s response to receiving a suspended sentence, albeit in more sedate terms. 

Upon becoming aware of the comments, Judge Lunt called the pair for review of their sentence and after a 10 day adjournment to consider the implications of the on line comments, during which bail was refused, the suspension was revoked and full time custody was ordered.  During the adjournment, Judge Lunt considered whether the comments amounted to contempt, harassment or any other criminal offence – concluding they did not.  Instead, the comments were used as evidence of the brothers’ lack of remorse and used as a factor in the redetermination of their sentence.  Unlike the La Rue case, the comments in this matter were directly connected to the proceedings and were not only disrespectful towards the Judge, but could be perceived as mocking the process[1].

The lesson to be learnt from this is that on line comments about Judges can land you in a lot of trouble.


[1] See Privacy Law Bulletin Vol 14 no. 3 2017 “On line comments and contempt” by Leah Findlay University of NSW @ p46