Alternative Reporting Options by Hannah Pugh
Alternative Reporting Options
The Queensland Police Service introduced ‘Alternative Reporting Options’ (ARO) as early as 2009.
ARO “exists for survivors of a sexual assault” and provides an alternative to making a formal complaint to police. Through the ARO process, survivors can provide police with “the full circumstances of their assault with the option of remaining anonymous if they wish”.[1]
The QPS notes that in addition to being “an extremely useful healing strategy for the survivor”, the ARO process is an effective investigative strategy for law enforcement agencies and “could be used to solve reported offences of a similar nature”.[2]
Specifically, police can use information obtained through the ARO process to “assist other prosecutions against an offender” and “devise intelligence driven strategies designed to target an offender and reduce repeat offending”.[3]
What does ARO mean for defence?
Information obtained through the ARO process represents a category of evidence which could be sought to be used against a person suspected of or charged with an offence of a sexual nature.
Questions may arise as to the admissibility of that evidence where, for example, the information obtained is from an anonymous source and cannot be tested.
In any event, defence need to be live to the use of ARO in criminal matters involving allegations of sexual offending. ARO needs to be the subject of inquiry and disclosure.
For focussed advice on how ARO may impact your criminal matter, call our team on (07) 3034 0000.
[1] Queensland Police Service, Alternative Reporting Options, last updated 27 July 2023 and available at: https://www.police.qld.gov.au/units/victims-of-crime/support-for-victims-of-crime/adult-sexual-assault/alternative-reporting
[2] Ibid.
[3] Ibid.
I have been charged with a Criminal Offence and hold a positive notice Blue Card: What Do I Do Now? by Emma Higgins
I have been charged with a Criminal Offence and hold a positive notice Blue Card: What Do I Do Now?
Introduction
Obtaining a Blue Card is a mandatory requirement for individuals in Queensland who work or volunteer in roles involving contact with children. The Blue Card system is designed to protect the safety and well-being of children by assessing the suitability of individuals in these roles. However, being charged with a criminal offense while holding a Blue Card can create a complex and challenging situation.
In this article, we will explore the steps to take if you find yourself in this situation and how it may affect your Blue Card status.
Understand the Blue Card System
A Blue Card is a formal approval issued by the Queensland Government that indicates an individual has met the necessary screening requirements and is eligible to work with children. These requirements include criminal history checks and ongoing monitoring.
It is essential to be aware of the responsibilities that come with holding a Blue Card, such as the duty to report any changes in police information, including criminal charges.
Notify the Blue Card Services
If you have been charged with a criminal offense, it is imperative to notify the Blue Card Services as soon as possible. Failure to do so may result in significant consequences, including the suspension or cancellation of your Blue Card.
You can notify the Blue Card Services by submitting a "Change in Circumstances" form, which is available on their website. Provide accurate and complete information. It is important that where the charges are at an early stage and you have only recently been charged your disclosure be brief because any disclosure about the charges themselves might be obtained by the QPS. You have the right to remain silent in the face of criminal allegations and the intersection between Blue Card and the criminal prosecution process should be approached with caution.
Await Further Instructions
After notifying the Blue Card Services of your criminal charge, they will review your case and may contact you for additional information or documentation. It's essential to cooperate during this process and provide any requested information promptly. However, it is also important to consider your competing rights in relation to criminal prosecution.
The Blue Card Services will consider the details of your case, the nature of the offense, and the potential risk to children. They will then make a decision regarding the status of your Blue Card.
Suspension or Cancellation of the Blue Card
If you have been charged with a criminal offense, the Blue Card Services may choose to suspend your Blue Card while they assess your case. This suspension is not a final decision but a precautionary measure to protect the safety of children. This would happen when the charges are disqualifying offences or where the person becomes subject to a temporary offender prohibition order or an interim sexual offender order.
During the suspension period, you are not authorized to work in roles that require a Blue Card. It is crucial to respect this suspension and refrain from engaging in any child-related work until the matter is resolved.
In some cases, the Blue Card Services may decide to disqualify a Blue Card holder. This will occur if you are convicted of a disqualifying offence and sentenced to imprisonment, become subject to reporting obligations, a final offender prohibition order or a sexual offender order. In such cases, the card must be cancelled and the person issued with a negative notice. .
Appeal to QCAT
If your Blue Card is cancelled and a negative notice is issued, you have the opportunity to appeal to the Queensland Civil and Administrative Tribunal. It is crucial to demonstrate that the decision was incorrect and that you have addressed any identified issues which the Department might rely on to have issued you a negative notice.
In many cases, it is possible to argue that the circumstances of the individual do not meet the ‘exceptional circumstances’ category required in many of the discretionary categories of cancellation. For example, where the offending is discontinued, not serious or disqualifying or relies only on domestic violence information or other relevant information.
Reapplying for a Blue Card
If your Blue Card is cancelled due to criminal charges, you have the opportunity to reapply for a new Blue Card after a period of 2 years. This is an application to set aside the negative notice. It is crucial to demonstrate that you have addressed the issue that led to the suspension or cancellation and that you are no longer a risk to children.
When reapplying for a Blue Card, it's advisable to provide all necessary documentation and information, including any evidence of your rehabilitation and good character. Your legal representative can guide you through the reapplication process.
Rehabilitation and Character References
One key factor in the Blue Card decision-making process is rehabilitation and insight. If you have been charged with a criminal offense, it is essential to actively work on your rehabilitation by complying with any court orders, seeking counselling or treatment if necessary, and making positive changes in your life.
Character references from individuals who can attest to your good character, personal growth, and commitment to children's safety can be valuable when reapplying for a Blue Card. Those commenting on your character should be briefed with the correspondence from Blue Card setting out the reasons for reconsideration or proposed cancellation so that it is clear that they are aware of the difficult parts of your history but still support you and attest to your good character.
Conclusion
Being charged with a criminal offense while holding a Blue Card in Queensland can be a challenging and stressful experience. However, it's essential to follow the necessary steps to address the situation and protect the safety of children. This includes notifying the Blue Card Services, cooperating with their review, seeking legal counsel for your criminal case, and actively working on rehabilitation and character references.
If you have been charged with a criminal offense, it is essential to seek legal counsel to navigate the criminal proceedings effectively. The outcome of your criminal case will have a significant impact on your Blue Card status.
Your legal representative will work with you to build a defence and address the charges brought against you. It is crucial to have a consistent strategy in respect of both your criminal matter and your blue card response.
If you would like to discuss your own matter, please contact ROG and speak with one of our specialists on (07) 3034 0000.
Evidence of Domestic Relationships and Domestic Violence - Impact on criminal proceedings by Emma Higgins
Evidence of Domestic Relationships and Domestic Violence - Impact on criminal proceedings
The Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 introduced provisions to the Evidence Act 1977 which address the admissibility of domestic violence history and a history of domestic violence relationships. As a result, from October 2023, domestic violence history becomes relevant to criminal proceedings.
The new provisions of the Evidence Act 1977 are designed to ensure fairness to the defendant and any other person in giving evidence about matters related to domestic violence; and ensure that the jury do not apply confirmation bias reasoning to the treatment of domestic violence. As we know, there is no typical situation that arises in a case involving domestic violence. Every person’s response to domestic violence is different.
In this article, our legal director, Emma Higgins, explores the consequences of this for criminal trial proceedings and the considerations you need to have in mind when you approach a criminal proceeding or domestic violence proceeding.
Evidence of Domestic Relationships and Domestic Violence
Section 103T of the Evidence Act 1977 applies in relation to a trial by jury in a criminal proceeding where domestic violence is an issue. There are a variety of ways that domestic violence may be an issue in the proceeding and importantly, the defence may at any time during the trial, ask the Judge to direct the jury about domestic violence generally by informing the jury about relevant matters. In relation to the Judge, however, the Evidence Act 1977 makes clear that the Judge may on their own initiative and in the interests of justice, inform the jury about the issues of domestic violence in the particular proceeding.
Section 103U of the Evidence Act makes plain that in relation to a criminal proceeding where there is a trial by jury and self-defence is raised in response to domestic violence, the defence may at any time ask the judge to direct the jury about self-defence in response to domestic violence and inform the Jury about relevant matters as set out in section 103ZA which includes:
- self-defence is, or is likely to be, an issue in the proceeding; and
- as a matter of law, evidence of domestic violence may be relevant to determining whether the defendant acted in self-defence; and
- evidence in the trial is likely to include evidence of domestic violence committed by the victim against the defendant or another person whom the defendant was defending.
The directions also take into consideration the ways that experiences of domestic violence in the past may impact the behaviour of the subject of the criminal proceeding.
The reason that these directions have been introduced to the Queensland evidence act 1977 is because the Domestic Violence Taskforce found that many members of the community do not understand how the dynamics of Domestic and Family Violence may impact on the behaviour of victims of Domestic and Family Violence, such as why a victim of Domestic and Family Violence may remain in an abusive relationship. The legislation provides the Court with a discretion to give jury directions that address misconceptions and stereotypes about domestic violence.
In Kritskikh v Director of Public Prosecutions [2022] WASC 130, Hall J said of the provisions in Western Australia, which are similar in nature:
“The evident purpose of these provisions is to ensure that common misconceptions about the way in which victims of family violence may behave, for example that they will promptly report family violence to the police or will not remain with the perpetrator of violence, are dispelled and not taken into account in the reasoning process [of fact finders]”.
Why Directions are important
Trial directions in a criminal proceeding are important for the jury to understand the law they are required to apply when they deliberate. It is important to place evidence in its proper context and to allow the jury to understand the ways that they are lawfully able to reason about the evidence.
Because the experience of domestic violence is different for every person, it is important for the Judge to give directions about the experience of domestic violence and explain why the experience of one person may be different to another. Section 103Z provides the content of a general direction about domestic violence and allows the Judge to inform the jury that domestic violence:
“(a) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse, or financial abuse; and
(b) may amount to violence against a person even though it is immediately directed at another person; and
(c) may consist of a single act; and
(d) may consist of separate acts that form part of a pattern of behaviour that can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial.”
If relevant, the judge can also inform the Jury that experience shows that:
“(a) people may react differently to domestic violence and there is no typical response to domestic violence; and
(b) it is not uncommon for a person who has been subjected to domestic violence to stay with an abusive partner after the domestic violence, or to leave and then return to the partner; and
(c) it is not uncommon for a person who has been subjected to domestic violence not to report domestic violence to police or seek assistance to stop domestic violence; and
(d) decisions made by a person subjected to domestic violence about how to address, respond to or avoid domestic violence may be influenced by a variety of factors; and
(e) it is not uncommon for a decision to leave an intimate partner who is abusive, or to seek assistance, to increase apprehension about, or the actual risk of, harm.”
There are other case specific directions which may be given in response to particular experiences of domestic violence.
Considerations for parties
A defendant in a criminal proceeding who has experienced or been the subject of domestic violence proceedings or allegations may face particular prejudices or pre-conceived ideas about how that person ought to respond to that experience of a domestic violence relationship. The directions provided to the jury by the judge are designed to ensure fairness in the proceeding and undo some of those potential myths about the reactions of individuals in those domestic violence circumstances.
It is important that if you are charged with a criminal offence related to a domestic violence relationship, you understand the ways in which your alleged behaviour in the past might impact your criminal proceedings. Whether or not particular evidence is admissible against you is a matter which may change how your trial strategy develops. If evidence of previous domestic violence is led against you, it can be prejudicial to the proceedings and it is important that consideration be given to the admissibility of that evidence and if admissible, the use to be made of it by the jury.
If you require strategic advice about how to approach your criminal defence from specialists in criminal law, call Robertson O’Gorman Solicitors and speak with our accredited specialists today.
This article was written by Emma Higgins, legal director at Robertson O’Gorman Solicitors. Emma is a QLS accredited specialist in criminal law. She holds a Bachelor of Laws (Honours) and a Bachelor of Business (Economics) from the Queensland University of Technology. As a solicitor admitted in Queensland, she has appeared as a solicitor advocate at all levels of the Queensland Court process. She has a special interest in appellate work, having been involved in appeals to the High Court of Australia.
How Domestic Violence Protection Order Proceedings Could Impact Your Working With Children Check? by Emma Higgins
How Domestic Violence Protection Order Proceedings Could Impact Your Working With Children Check?
Introduction
The safety and well-being of children are paramount considerations under the Working with Children (Risk Management and Screening) Act 2000 (the WWC Act). That legislation has established stringent regulations and checks to protect children from harm and abuse. A Blue Card or positive working with children check is required to engage in employment, whether voluntary or paid with children. In this article, we will explore the implications of domestic violence protection order proceedings on your ability to maintain a Blue Card in Queensland.
Understanding the Working With Children Check
Blue Cards are a safeguard in Queensland's child protection framework. It is designed to identify and exclude individuals who may pose a risk to children from working or volunteering in roles involving regular contact with children. The check aims to protect children from harm, including physical, sexual, and emotional abuse, and it is a legal requirement for many professions and volunteer positions.
While not perfect, the disclosure requirements of the working with children process in relation to police information are extensive where that information exists.
The Intersection of Domestic Violence and Blue Cards
Domestic violence is a pervasive issue that has serious implications for the safety of children, particularly those who are exposed to domestic violence or experience associated domestic violence. Queensland has specific legislation in place to address domestic violence cases, namely the Domestic and Family Violence Protection Act 2012. This act enables aggrieved persons to seek protection orders against respondents and aims to provide a legal framework to address domestic violence issues.
As a part of those orders, named children can be placed in applications and be protected by orders where there is grounds to support a finding that the children are at risk of exposure to or experience associated domestic violence.
Becoming involved in a domestic violence situation is, by itself a difficult experience for all parties. However, before any steps are taken to finalise a without admissions order by consent or following a hearing, it is important for individuals, particularly those who hold Blue Cards to consider the potential consequences for their working with children clearance.
When applying for a WWCC, the Department obtains and considers criminal history and other relevant information which includes domestic violence information. Upon a charge for contravening a protection order, the update to the police information may trigger a reassessment process under the working with children legislation. There is an obligation on positive notice holders to declare a change in police information.
The Department will then assess whether individuals pose a risk to children based on their criminal history check and any other relevant information. Domestic violence protection order proceedings can be seen as an indicator of potential risk to children, especially if the orders involve violence, threats, or harm towards a family member.
The working with children check is not a one-time check; it is renewed periodically. If domestic violence protection order proceedings arise during the validity of a WWCC, they may be considered in the renewal process.
Understanding the decision making process for the Department
Case law suggests that the Department in considering the relevance of domestic violence information to an assessment of risk in relation to working with children, the exposure of children to ongoing domestic violence is a relevant feature.
In the event that no other relevant feature associated with criminal history is relevant to the determination, other relevant information (including domestic violence information) would only preclude a person from holding a positive notice if there were exceptional circumstances.
The term ‘exceptional circumstances’ is not defined in the WWC Act. Whether a case is an exceptional case is a question of fact and degree to be decided individually having regard to “the context of the legislation which contains them, the intent and purpose of that legislation and the interests of…children.”
Section 228 of the WWC Act provides that where domestic violence information exists, there must be consideration of:
- The circumstances of the domestic violence order;
- Length of time that has passed since the conduct;
- Relevance to employment involving children;
- Anything else relating to the information relevant to the assessment.
There are complex issues at play when:
- An aggrieved person receives a protection order for their protection but where that application shows that there is a level of exposure and ongoing risk to the children of that or previous relationships;
- A respondent person consents to a protection order naming children or contravenes a condition of the protection order, particularly if the allegation of contravention is said to have occurred in front of or exposing children to the behaviour.
How can we assist?
Your employment or voluntary work with children are important considerations when you approach a domestic violence matter. If you are the aggreived or the respondent, there is a potential for you to lose the opportunity to continue to hold a blue card depending on the allegations made in the protection order proceedings.
it is important in those circumstances that you receive advice at an early stage so that a strategy can be developed to ensure your position as regards your positive notice and protection order are preserved.
If you wish to discuss your positive notice or how it might be impacted by your protection order proceedings, call Robertson O'Gorman Solicitors on (07) 3034 0000.
Parole and show cause notices by Rachna Nagesh
Parole and show cause notices
In Queensland, the authority that makes decisions regarding parole is the Parole Board Queensland (‘the Board’). The Board has the power to indefinitely suspend or cancel a parole order when they reasonably believe that a person in detention:
- Has failed to follow a condition of their parole order (such as a curfew condition or negative urine drug tests);
- Presents a “serious and immediate risk of harm” to another person;
- Presents an “unacceptable risk” of committing an offence;
- Are preparing to leave Queensland without permission to do so; and/or
- Have been charged with a criminal offence.
As is apparent from the list above, the Board has the power to suspend or cancel a parole order even if the person has not been charged with a criminal offence or breached a condition of their parole (although these are the most common reasons for the decision).
What is the process?
Once a decision has been made to immediately suspend your parole, the Board will issue a warrant for your return to custody. This decision is sometimes initially made by a single member of the Board, and within two business days, the Board is required to consider the decision again. They will decide whether to confirm or set aside the decision.
If the Board decides to set aside the decision, you will be released from custody.
If the Board decides to confirm the decision, they will suspend your parole order. You will be issued with a document called an “Information Notice”. This document will:
- Confirm that your order has been suspended;
- Outline the grounds for your suspension and the reasons the Board decided to suspend your order; and
- Ask that you “show cause” within 21 days of receiving the Information Notice.
How do you “show cause”?
This part of the process allows you to tell your side of the story and explain why you should be released on parole. You should draft a letter containing submissions that address the grounds and reasons for your parole suspension.
Suspension due to further offences
If you have been suspended because you were charged with further offences, you will need to make submissions about matters including the following:
- The seriousness of the charges;
- Whether you have been released on bail for the charges (this does not mean that you will automatically be granted parole);
- Your personal circumstances (whether you are employed, whether you have been engaged in rehabilitation/treatment, your physical health);
- Your track record with parole supervision; and
- The length of time needed to determine the outcome of the charge.
You should be careful in discussing the circumstances of the offending, especially if you wish to contest the new charges. You should be careful not to incriminate yourself in those circumstances.
Failure to comply with parole order
If you have been suspended because you breached a condition on your parole order, you will need to make submissions about matters including the following:
- The seriousness of your failure to comply;
- The circumstances surrounding your failure to comply;
- Your home environment (including whether you have supportive family and friends);
- Your personal circumstances (whether you are employed, whether you have been engaged in rehabilitation/treatment, your physical health); and
- Your track record with parole supervision.
It is also important to discuss what steps you will take to ensure you do not fail to comply again, such as participation in treatment programs and counselling.
If your failure to comply was related to a relapse, the Board may ask you to complete a Relapse Prevention Plan. It is crucial that you complete this plan and take it very seriously. The Board may also review your accommodation again to decide whether it is appropriate.
How long does it take for a decision to be made?
While the decision must be made within a reasonable time, there is no legislative timeframe within which the Board is required to reconsider their decision.
Unfortunately, the process may take some months and there may be requests for further information from the Board. Sometimes, the Board will reconsider the decision multiple times before making a final decision. They will write to you each time your parole suspension is reconsidered.
Can a decision to suspend parole be appealed?
If the Board confirms their decision to suspend your parole, you can lodge an application for review of the decision in the Supreme Court of Queensland.
Because the Board is a public entity, it is required to act and make decisions in a way that respects and upholds human rights under the Human Rights Act 2019 (Qld).
Any relevant human rights considerations (as they arise under the Act) must be taken into account when deciding whether to cancel your parole.
How Robertson O’Gorman can help
Our team has significant experience in making show cause submissions as well as appearing in the Supreme Court of Queensland for appeals of Parole Board decisions. Contact us on our website or call (07) 3034 0000 for a free case appraisal.
Overview of changes to the Domestic Violence Act by Hannah Pugh
Overview
On 1 August 2023 the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) came into force.
Most notably the Act amends Queensland’s domestic violence laws to give effect to the recommendations contained in the first report of the Women’s Safety and Justice Taskforce, Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland.
The amendments are significant, and their retrospective application has the potential to impact matters currently before the Courts.
How ROG can help
The team at Robertson O’Gorman is experienced in this area of law. We are acutely aware of the ways in which the most recent amendments to Queensland’s domestic violence legislation may impact on proceedings started both before and after 1 August 2023.
If you would like specialised advice relating to a domestic violence matter, please contact our office on (07) 3034 0000.
Overview of Amendments to Queensland Domestic Violence Laws
The amendments to Queensland’s domestic violence laws may be categorised as follows:
- Definition of domestic violence
- Cross Applications
- Identification of “person most in need of protection”
- Costs
- Criminal and Domestic Violence Histories: Consideration and Disclosure
- Substituted Service
- Reopening of Proceedings
- Protected Witnesses
Details for each of these categories is below.
- Definition of Domestic Violence
The Act expands the definition of domestic violence.
First, it amends the definitions of domestic violence,[1] emotional or psychological abuse[2] and economic abuse[3] to include reference to a ‘pattern of behaviour’.
Second, the Act makes clear that domestic violence includes behaviour that may occur over a period of time and includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear. The Act also states that these factors must be considered in the context of the relationship as a whole.
Intimidating harassing or abusing a person has also been included in the definition of ‘domestic violence’.[4]
As per the Explanatory Notes, these amendments are intended to “strengthen the responses to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time”.[5]
- Cross Applications
The Act amends Queensland’s domestic violence laws as they relate to the making and hearing of Cross Applications.
Summarised these amendments are:
- requiring applications and cross applications to be heard together;[6]
- requiring the court to consider whether to make arrangements for the safety, protection or wellbeing of the person most in need of protection (for example, allowing the person most in need of protection to give evidence outside the courtroom);[7]
- requiring the court to identify the person most in need of protection in the context of the relationship as a whole;[8] and
- only allowing the court to make one order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.[9]
The Explanatory Notes state that these amendments are intended to ensure that cross applications are not used by perpetrators of domestic violence as a means of “continuing to control and intimidate victims, resulting in domestic violence orders being made against victims of DFV”.[10]
- Identification of “person most in need of protection”
The Act has, for the first time, provided legislative guidance on determining the ‘person most in need of protection’.
Under the new section 22A of the DFVPA, a person will be ‘most in need of protection’ when the behaviour towards them is more likely than not:
- abusive, threatening or coercive; or
- controlling or dominating causing them to fear for their safety or wellbeing (or that of their child, another person or animal, including a pet); or
- the person’s behaviour is more likely than not to be for the self-protection of themselves (or their child, another person or animal, including a pet), in retaliation of the other’s person behaviour towards them (or their child, another person or animal, including a pet), or attributable to the cumulative effect of the other person’s domestic violence towards them.
Under the new section 22A(2) the court must consider the following when determining the person most in need of protection:
- the history of domestic violence and the relationship between the parties;
- the nature and severity of the harm caused to each other;
- the level of fear experienced by each person;
- which person has the capacity to seriously harm the other person, or control or dominate the other person and cause fear; and
- whether the persons have characteristics that make them particularly vulnerable to domestic violence. Examples of people who may be particularly vulnerable to domestic violence are provided.[11]
- Costs
The Act enables a Court to award costs against a party whose application is dismissed and is considered by the Court to be a behaviour, or continuation of a pattern of behaviour, that is domestic violence.[12]
The intent behind this amendment is to prevent the type of behaviour described as ‘systems abuse’ or ‘legal abuse’: the use of Queensland’s domestic violence laws by one person to commit domestic violence against another.[13]
- Criminal and domestic violence histories
The Act amends Queensland’s domestic violence laws to require a respondent’s criminal and domestic violence histories to be disclosed to the Court in proceedings commenced after 1 August 2023. The Act gives the Court the power to consider those histories at various stages of proceedings. The new disclosure requirements apply to interstate histories and spent convictions.[14]
For proceedings commenced before 1 August 2023 but not yet decided, the Court may ask for the respondent’s criminal and domestic violence histories and consider same if it considers them relevant.[15]
Summarised:
- The Police Commissioner must provide a copy of the respondent’s criminal and domestic violence history to the Court when applying for a Protection Order, and when applying to vary a Protection Order.[16]
- The Court must consider a respondent’s criminal and domestic violence histories when deciding whether a Protection Order is necessary;[17]
- The Court may consider a respondent’s criminal and domestic violence histories when making or varying a Protection Order,[18] and when choosing to make a Temporary Protection Order;[19]
- The Court may consider a respondent’s criminal and domestic violence histories of a parent when deciding to make or vary a protection order.[20]
- Substituted Service
The Act amends Queensland’s domestic violence laws to allow for substituted service[21] of Police Protection Notices[22] and Protection Orders.[23] A substituted service order may be made for documents made before 1 August 2023.[24]
- Reopening of proceedings decided in respondent’s absence
The Act allows for a respondent to apply to the Court to reopen proceedings that were decided in the respondent’s absence, if the application was served under a substituted service order and the application was not, or could not reasonably have been, brought to the respondent’s attention by doing so.[25]
- Protected witnesses
The Act makes victims of domestic violence, or domestic violence order related offences, protected witnesses.[26]
This means that victims of domestic violence are afforded those protections as set out in the relevant part of the Evidence Act 1977 (Qld),[27] namely that they cannot be cross examined by an unrepresented defendant for an offence against the Domestic and Family Violence Protection Act 2012 (Qld).[28]
[1] Section 8.
[2] Section 11.
[3] Section 12.
[4] Section 8(3).
[5] Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022, Explanatory Notes, p 5.
[6] Section 41C.
[7] Section 41D.
[8] Section 41G.
[9] Section 41G(3).
[10] Ibid n 5, p 6.
[11] Section 22A(2)(e).
[12] Section 157(2).
[13] See section 157(2)(a).
[14] Sections 189A, 189B.
[15] Section 234(2).
[16] Sections 36A, 90A, 189B.
[17] Section 36A.
[18] Sections 42(3); 91.
[19] Section 45.
[20] Section 43(6).
[21] See section 184A.
[22] Section 113(1)(a).
[23] Section 184(5)(a)(ii).
[24] Section 236.
[25] Sections 157A – 157C.
[26] Section 150(1).
[27] Evidence Act 1977 (Qld) Part 2, Division 6.
[28] Section 151.
Overseas Travel as a Reportable Offender by Hannah Pugh
Overseas Travel as a Reportable Offender
Overview
‘Registered’ or ‘reportable offenders’ in Australia cannot travel overseas without first obtaining permission from a competent authority.[1] Failure to do so will result in a penalty of five years imprisonment.[2]
It is important, then, for those deemed registered or reportable offenders to understand the process for which permission to travel overseas may be obtained.
Unfortunately whilst the legislation is clear in requiring permission, it is silent on what factors will be relevant to obtaining it.
Applicants are thus required to turn to the common law for guidance on this crucial aspect of their application.
Legislation
Section 271A.1 of the Criminal Code (Cth) was intended by Parliament to prevent reportable offenders from travelling overseas to sexually exploit or abuse vulnerable children.[3]
Under Section 271A.1, a reportable offender faces imprisonment for five years if he or she leaves Australia without permission from a competent authority.
A ‘reportable offender’ under section 271A.1 is a person whose name is entered on a child protection offender register (however described) of a State or Territory, who has reporting obligations in connection with that entry on the register.[4]
The relevant legislation in Queensland is the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). Generally speaking, under section 5 of that Act a person sentenced for sexual offences involving children or child exploitation material will be deemed a reportable offender in Queensland.[5] For more detailed information on who is deemed a ‘reportable offender’ in Queensland, see Reportable Offender Legislation in Queensland.
‘Competent authority’ under section 271A.1 will be the relevant unit of the police service for the state or territory in which the reportable offender resides. In Queensland this is the Queensland Police Service’s ‘Child Protection Offender Registry’, which is supported at a local level by police officers in the community.[6]
Obtaining permission
The practical steps to obtaining permission to leave Australia will differ as between each state and territory.
In Queensland, permission for a reportable offender to travel overseas may be obtained by way of written application to the relevant unit of the Queensland Police Service.
What will be considered by the competent authority when determining an application by a reportable offender to leave Australia?
As stated, the legislation is silent on what must be taken into account when determining an application by a reportable offender to travel overseas.
Guidance must be gleaned from the common law.
In Mentink v Commissioner for the Police[7] Mullins J (as her Honour then was) remarked:
“There is no ‘presumption” expressed or implied under s 271A.1 of the Code against international travel that applies as the starting point when a reportable offender requests the component authority for permission to leave Australia”. [8]
Her Honour continued:
“There will be a number of risks of the same or similar nature that may have to be considered for any reportable offender who requests permission from a competent authority to travel overseas, but the weight to be given to a particular risk in any one case may vary according to the circumstances pertaining to that reportable offender which is a matter for the decision maker.”[9]
Having regard to the obiter in Mentink two things are clear.
First, section 271A.1 does not operate to prevent, at the outset, a reportable offender from travelling overseas. Rather it operates to ensure that international travel by reportable offenders is controlled.
Second, the weight to be given to risk factors associated with reportable offenders travelling overseas will be case specific.
For potential applicants, these two points are important to bear in mind: whilst not automatically prevented from overseas travel, obtaining permission to do so is no linear task.
Conclusion
Reportable offenders may leave Australia with the permission of a competent authority.
There is no set legislative criteria for determining an application by a reportable offender to obtain permission to travel overseas.
In Queensland it has been held by the Court of Appeal that the weight to be given to a particular risk in any one case may vary according to the circumstances specific to that reportable offender.
Potential applicants in Queensland should be aware then that although they are able to travel overseas with permission, there is no pro-forma approach to obtaining that permission.
How ROG Can Help
The team at Robertson O’Gorman is experienced in this area of law, and understands the difficulties associated with its navigation.
If you are interested in making an application under this legislation, or require more information about the process, please contact our office on (07) 3034 0000.
[1] Criminal Code Act 1995 (Cth), s 271A.1.
[2] Ibid.
[3] See Explanatory Memorandum, Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Cth).
[4] Criminal Code Act 1995 (Cth), s 271A.1(b) and (c).
[5] Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 5, 9. See also Schedule 1.
[6] See Police Service Administration Act 1990 (Qld), section 4.9.
[7] [2018] QSC 151.
[8] Ibid, at [29].
[9] Ibid, at [36].
Navigating the Prohibition on Publication: Section 159 of the Domestic and Family Violence Protection Act 2012 by Emma Higgins
Navigating the Prohibition on Publication: Section 159 of the Domestic and Family Violence Protection Act 2012
In the pursuit of safeguarding the parties and maintaining the integrity of legal proceedings, many jurisdictions have established laws that restrict the publication of certain information. These laws aim to balance the right to a fair hearing and protect individuals, particularly in cases involving domestic and family violence. In Queensland, section 159 of the Domestic and Family Violence Protection Act 2012 contains a prohibition on publication.
Closed Court domestic violence proceedings
Unlike criminal proceedings, domestic violence proceedings are civil proceedings and are conducted in a closed court. Ordinarily, courts are open to the public to ensure transparency and accountability. Most criminal proceedings and civil proceedings in Queensland are public and open, accessible to the public at any time.
Domestic violence proceedings, however, are closed to the public. No members of the public, including media and journalists, can be in the courtroom unless they are a party to the proceedings. The people you will ordinarily find in the Courtroom at your domestic violence hearing include:
- The Magistrate and other court staff;
- The parties – called the Applicant, the Aggrieved and the Respondent; and
- Legal representatives for each party.
Prohibition on publication
The prohibition on publication outlined in Section 159 prevents the identification of parties involved in domestic and family violence proceedings. It restricts the disclosure of names, addresses, photographs, and other information that could lead to the identification of the aggrieved, respondent, a child of a relevant relationship or any other named person or witness involved in the case. Additionally, this prohibition extends to any information that could reveal the nature or circumstances of the alleged behaviour.
The prohibition on publication serves multiple purposes, each with the ultimate goal of fostering a safe and supportive environment for victims and their families. Some key objectives include:
- Protecting the safety of aggrieved persons: By preventing the identification of aggrieved people, section 159 aims to minimize the risk of retaliation, harassment, or further harm that could arise from public exposure.
- Ensuring fair hearing rights: The prohibition on publication helps preserve the integrity of legal proceedings by preventing potential bias or prejudice that could arise from public discussion.
- Encouraging reporting and seeking help: By maintaining anonymity, people the subject of domestic violence may feel more empowered to come forward, knowing that their privacy will be protected and their personal information will not be widely disseminated.
- Safeguarding children and other vulnerable parties: The prohibition on publication helps shield children, extended family members, and witnesses from potential harm and undue attention that may arise from public knowledge of the case.
An offence to publish
A contravention of prohibition on publication provision is an offence punishable by 100 penalty units or up to 2 years imprisonment if you are an individual. There are some specific circumstances in which the publication of information given in evidence to the DV Court or which identifies or is likely to identify a relevant person would not amount to an offence. Those exceptions are:
- If the Court expressly authorises the information to be published;
- If each person to whom the information relates consents to the information being published;
- To the display of a notice in the premises of a court;
- To the publication of information for the purpose of a recognised series of law reports;
- To the publication of information for approved research;
- If the publication is expressly permitted or required under this or another Act; or
- If the publication is permitted under a regulation.
While the definition of publish is specific, it is important to be cautious when handling documents or other evidence from a domestic violence proceeding to ensure that you are not placed in a position where you are contravening the legislation.
Takeaways for parties
Parties to a domestic violence proceeding should be wary of the non-publication provisions and ensure that they are complying with the obligation not to publish information to the public. Some examples of this include:
- Distributing documents from the proceedings to friends or associates.
- Publishing comments about the proceedings on social media that identify parties, allegations, findings or comments made during the proceedings.
In addition to the publication of those documents being an offence, it is also possible that if you are the respondent to an order and engage in that type of behaviour, it may amount to a breach of a protection order because it may be evidence of you not being of good behaviour and committing domestic violence against the aggrieved.
Section 159 of the Domestic and Family Violence Protection Act 2012 plays a vital role in safeguarding the privacy, safety, and dignity of all parties involved in domestic and family violence cases. By balancing the need for fair hearings, protecting aggrieved people, and minimizing the potential for harm, this provision strives to create a supportive environment for those affected by these offenses.
Contact a domestic violence lawyer at Robertson O’Gorman Solicitors if you require advice about the privacy of your domestic violence proceedings.
Reportable Offender Legislation in Queensland by Hannah Pugh
Reportable Offender Legislation in Queensland
Overview
In Australia, persons convicted for offences involving children or child exploitation material will in most cases have their information recorded on the ‘National Child Offender System’ (‘NCOS’).[1]
Information for the NCOS is gathered by law enforcement for each state and territory. This occurs under legislation requiring offenders in each jurisdiction to report to law enforcement periodically.
In Queensland, the relevant legislation is the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (‘the Act’).
Who is a ‘Reportable Offender’ in Queensland?
Section 5 of the Act defines a reportable offender as someone who is sentenced for a ‘reportable offence’.
A ‘reportable offence’ is defined[2] to include, summarily, any type of sexual offence involving a child, and any type of offence involving child exploitation material (computer games included). For a full list of offences, see Schedule 1 of the Act. Offences include:
- Using the internet to procure a child;
- Sexual assault;
- Indecent treatment;
- Grooming;
- Carnal knowledge of a child;
- Rape;
- Maintaining a sexual relationship with a child;
- Offences involving child exploitation material.
Even if a person is sentenced for a non-reportable offence, a Court may order that it be treated as a reportable offence if it is satisfied that the facts and circumstances constitute the elements of such.[3]
In some cases, a person who is sentenced for a reportable offence will not be deemed a reportable offender under the Act.[4] This can occur when:
- A conviction is not recorded; or
- The person is sentenced to a single offence and the sentence does not include a term of imprisonment; or
- The person is sentenced to a single offence and the sentence does not include a requirement that they be supervised; or
- The person was a child when they committed a single offence, and that single offence involved child exploitation material only.
Last, a person who is deemed a reportable offender in another state or territory will be a reportable offender in Queensland.[5]
Reporting obligations
Reportable offenders will receive a ‘Notice of Reportable Offender’s Reporting Obligation’ from Queensland Police, either after conviction or release from custody. An initial report must be made to police within seven days of receipt of the Notice.[6]
Though the initial report must generally be made in person, follow up reports may be made online or over the phone.[7]
Monthly reporting obligations begin after the initial report.[8] Reporting frequency can however vary from case to case, and can be altered by the Police Commissioner.[9] A reportable offender may seek to have a decision to increase his or her reporting frequency reviewed.[10]
Information to be reported
A reportable offender must confirm the accuracy of their personal details in each report, or advise of any changes. The information to be reported can vary, but generally will include details about:[11]
- Place of residence;
- Employment;
- Vehicles registered in their name;
- Telephone and internet accounts;
- Any contact with children (regular or irregular, but not incidental); and
- Any intended travel outside Queensland, or Australia.
Record of information reported, and rights in relation to same
All information reported under the Act is recorded on the NCOS.
Reportable offenders may request copies of all reportable information in relation to them held on the NCOS. The Police Commissioner must provide this information upon request.[12]
Reportable offenders may also request that the Police Commissioner amend any reportable information held on the register in relation to the offender, that is incorrect. The Police Commissioner must comply with the request upon being satisfied that the information is incorrect.[13]
Reporting period
Reporting periods are five years, ten years or indefinitely.
A person’s reporting period will vary according to the type of offence committed and whether further offences are committed thereafter. In summary:[14]
- A five year reporting period will apply where a person was found guilty of one offence, or found guilty of multiple offences dealt with simultaneously by the Court.
- A ten year reporting period will apply where a person was convicted of one or more reportable offences and convicted of one further reportable offence thereafter.
- An indefinite reporting period of will apply where a person was convicted of one or more reportable offences and convicted of more than one reportable offence thereafter.
Suspension of reporting obligations
A reportable offender may apply in writing to the Police Commissioner for a suspension of their reporting obligations under the Act.[15]
A suspension will only be granted if the Police Commissioner is satisfied that the reportable offender does not pose a risk to the lives or sexual safety of one or more children, or of children generally. Further considerations apply where the reportable offender has a cognitive or physical impairment, or a mental illness.[16]
A reportable offender may seek to review a decision of the Police Commissioner to refuse to suspend reporting obligations.[17]
Offences for non-compliance
A failure to comply with reporting conditions without reasonable excuse is a crime under the Act. A penalty of up to 300 penalty units or 5 years imprisonment may be imposed.[18]
It should be noted that a conviction for an offence of noncompliance may also act to further penalise a reportable offender where it occurs in breach of parole, or a suspended sentence.
Other infringements
Reportable offenders must obtain the permission of the Queensland Police Service to travel outside of Australia, or face criminal charges.[19] A written application to this effect must be made.
Finally, the Queensland Police Service may request that the Department of Foreign Affairs and Trade cancel a reportable offender’s passport, or refuse application for same.[20]
Conclusion
Persons convicted for sexual offences involving children or child exploitation material in Queensland will, in most cases, be deemed a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
Reportable offenders are required to report periodically to the Queensland Police Service. These reporting obligations can last for five years, ten years or indefinitely. Reportable offenders may apply to the Police Commissioner to have their reporting obligations suspended, and can seek review of a decision to refuse same.
The information to be reported ranges from personal information to information about contact with children. All information reported under the Act is recorded on the NCOS. Reportable offenders can access, through the Police Commissioner, information on the NCOS as it relates to them. They may also request that information on the NCOS be corrected.
Lastly, reportable offenders must obtain permission from the Queensland Police Service to travel outside of Australia by way of written application. The Queensland Police Service may request that DFAT cancel a reportable offender’s passport, or refuse an application for same.
How can ROG help?
The team at Robertson O’Gorman is experienced in this area of law. We understand the complexities of this legislation and the very real impact it has on those to which it applies.
If you have been charged with a relevant offence, or would like assistance navigating your rights under this Act, please contact our office on (07) 3034 0000.
[1] The NCOS incorporates two registers of information: the ‘Australian National Child Offender Register’ and the ‘Managed Person System’. These two registers hold information about current reportable offenders, past reportable offenders and those who were charged with child sex offences but never convicted.
[2] Section 9. See also Schedule 1.
[3] Section 5A; section 9(c).
[4] See s 5(2)(a)-(iv).
[5] Section 5(1)(b) and (c).
[6] See Part 4, sections 14 – 19.
[7] Section 26.
[8] Section 19(1).
[9] Section 19(2).
[10] Schedule 4.
[11] See sections 18 – 24.
[12] Section 73(1).
[13] Section 73(4).
[14] Section 36.
[15] Section 67D(1).
[16] See Section 67D(5)(b) and (c).
[17] Schedule 4.
[18] Section 50.
[19] Criminal Code Act 1995 (Cth), s 271A.1.
[20] Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth).
Robertson O'Gorman now has 5 Criminal Law Specialist Accredited Lawyers.
As the leading Queensland Criminal Law firm, we are pleased to congratulate another of our remarkable team of criminal law specialists! Emma Higgins is the latest of our team to be awarded Queensland Law Society Specialist Accreditation in the field of Criminal Law.
The Specialist Accreditation Scheme gives solicitors an opportunity to formally recognise their high level of competency and knowledge in their chosen area of legal practice. It also provides excellent guidance to the public and the profession as to which legal practitioners are truly leaders in their area of expertise.
This means that the team at Robertson O’Gorman Solicitors will be comprised of five practitioners who hold Specialist Accreditations in Criminal Law. This is a truly remarkable panel of expertise and skill and aligns with our culture of excellence and true commitment to superior customer service.
For more information on any of Robertson O’Gorman’s services or to read more about our team – please visit our website https://lnkd.in/gBYTSJv