Privacy Issues with Mastercard Selfies
Civil Liberties’ lawyer Terry O’Gorman this week criticised the lack of privacy safeguards in respect of Mastercard’s announcement that Australian users of Mastercard can use photographs of selfies to authenticate credit card transactions.
Mr O’Gorman said that while it was reasonable for a major credit card provider such as Mastercard to develop more effective technology to prevent credit card fraud, it is equally important that the Australian Federal Privacy Commissioner lay down strong and enforceable regulations to Mastercard to ensure the photos produced for authentication of credit card transactions are not onsold to other data companies.
“Last month Europe’s highest Court handed down a ruling affecting Google and other multinational companies requiring that the free for all onsale of data gathered by Google and other large data companies be significantly reined in”, Mr O’Gorman said.
“It is not within the power of individual Mastercard holders to approach Mastercard to ensure that the selfie photos are not onsold to companies who make large amounts of money by passing such data on to advertising companies”, Mr O’Gorman said.
Mr O’Gorman said that it is for this reason that it is absolutely critical that, before the Mastercard selfie photo authentication process is rolled out in Australia, the Federal Privacy Commissioner imposes a strong and effective regime on Mastercard to prevent unauthorised onsale of the photographic details.
The Australian Building and Construction Commission – Your Rights
Building and Construction Commission. Under the Act, you do not have the right to refuse to answer questions during an examination because the answers would be self-incriminating. However, any responses given during an examination cannot be used as evidence against you in further criminal proceedings (except under limited circumstances such as giving false statements).
If you give information under an examination notice you are not liable to any proceedings for contravening any other law because of that conduct. Any documents inspected or copied, or information obtained from the coping or inspection of the documents, is not admissible as evidence in criminal proceedings other than in limited circumstances set out in the Act.
In relation to kept documents or records, while authorised officers have the power to retain the documents, they must allow certain people (the person who gave the documents or person entitled to possess the documents for example) to access or make copies of the relevant documents at all reasonable times. Further, you are entitled to be supplied with a certified copy of the documents as soon as practicable. These copies must be received in all courts and tribunals as though they were originals.
Upon entering a premises, officers must show their identity cards to the occupier or owner as soon as practicable. While authorised officers have the power to enter premises (without force) they can only do so under certain circumstances, such as if they believe building work is being performed, there has been a breach of the Act, or, for business premises, they believe there are documents relevant to compliance purposes on, or accessible from, the premises. Under the Act there are further restrictions regarding entry. If you have questions regarding whether the entry of officers is lawful, it is recommended that you obtain legal advice.
Obtaining legal advice when under an investigation, particularly regarding examination notices, is a very important step to protect your rights and interests. Robertson O’Gorman regularly assist and appear on behalf of individuals under these circumstances. We understand that experienced lawyers are key to protecting you during investigations or inquiries.
The Australian Building and Construction Commission
The existence of a body to regulate unions in the building sector has been a concern for a number of years. After the Cole royal commission in 2003, the Howard Government established the Australian Building and Construction Commission to regulate this area. This body was then abolished by the Gillard Government in 2012, and was replaced by Fair Work Building and Construction. More recently, the Abbott, and later Turnbull Governments, moved to re-establish a watchdog for this sector, and, when its re-establishment met resistance, it became a trigger for a double dissolution by the Turnbull Government, which was returned to office and subsequently passed legislation to establish a new commission.
The Australian and Building Construction Commission, the current watchdog, was re-established by the Building and Construction Industry (Improving Productivity) Act 2016 (‘The Act’). Its role is to enforce compliance with legislation such as the Fair Work Act 2009 and the Independent Contractors Act 2006 amongst others. To do this, the Commission has a number of powers, including requiring a person to attend an examination to give answers, to provide information and produce documents.
It is an offence to not comply with an examination notice, such as by non-attendance or answer relevant questions, the penalty for which is six (6) months imprisonment. Other powers of the authorised officers include entering a premises (without force), inspect work, interview any person, require a person to tell the officer who has custody, or access to, a record or document and can request the custodian to produce the document. Under the Act, authorised officers may also copy and/or keep documents for as long as necessary. Authorised officers may also inspect or make copies of any record or document that is either on the premises or is accessible via computer from the premises. Under some circumstances, authorised officers also have the power to require you to give your name and address.
Robertson O’Gorman regularly appear on behalf of individuals who face a commission of inquiry or investigation. Having an experienced lawyer protecting your rights and interests is vital.
Dan Rogers Obtains Specialist Accreditation in Criminal Law
Legal director of this firm, Dan Rogers recently obtained a Specialist Accreditation in Criminal Law from the Queensland Law Society.
The award is an acknowledgement of Dan’s high level of practical skill and knowledge in criminal law. Fewer than thirty practitioners around the state have achieved the accreditation.
Dan joins Leigh Rollason and Terry O’Gorman as Accredited Specialists in Criminal Law working at Robertson O’Gorman. The firm continues to ensure that our clients are receiving the highest level of representation.
To speak with an Accredited Specialist today, call us on (07) 3034 0000.
The Right to Protest: Intended lifetime ban for refugees who travel to Australia by sea
On Monday, 21 November 2016, Dan Rogers appeared pro bono for a group of three protestors that were charged with unlawfully doing an unregulated high risk activity and obstruct police. The ‘high risk activity’ was sitting on top of an awning at Immigration Minister Peter Dutton’s office.
The three protestors were each charged with the offending after staging a protest against Mr Dutton’s proposals to permanently ban refugees who travel to Australia by sea. All three plead guilty to the charge and received a $100 fine with no conviction being recorded.
In a democratic society, the right to protest is just 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 the human rights abuses concerning Australia’s immigration policy.
To speak with a solicitor today, call Robertson O’Gorman on 3034 0000.
QCCL Media Release: Did the DPP consider their own guidelines before Tostee's trial?
The Civil Liberties Council today queried whether Tostee would have faced trial had the prosecution applied their own prosecutorial guidelines. These guidelines require the discontinuance of a charge unless there is both a public interest in the prosecution and sufficient evidence.
“While I am in no way attributing bad faith to the DPP decision to prosecute Tostee, the question is fairly raised whether, on the facts presented in Gabe Tostee’s trial, he would even have been charged let alone prosecuted if he was a female”, Mr O’Gorman said.
Mr O’Gorman said that the facts as reported in today’s media that were put forward in Tostee’s trial this week are as follows:-
- Tostee’s tape recording of the event had him warning Warriena Wright that he would have to kick her out if she did not stop attacking him;
- Ms Wright threw rocks from a tray on Tostee’s glass coffee table top at him; and
- Ms Wright grabbed a heavy metal clamp from a telescope that Tostee kept on his table and swung it at his head.
“Whilst some legal commentators today say that the DPP had no choice but to move forward with the case and that there was sufficient evidence for the matter to be put in the hands of a jury, other commentators take the position that there was not sufficient evidence to justify a charge and that the matter should have been referred in the first instance to the State Coroner”, Mr O’Gorman said.
“While I stress I am not accusing the DPP of bad faith in this prosecution, the prosecution of Tostee highlights the problem of Queensland, and indeed Australian, law that the decision of a Prosecutor to lay charges is utterly unreviewable in the Courts”, Mr O’Gorman said.
“The High Court held for many years (refer Maxwell’s case) that the decision of a DPP Prosecutor to lay charges is unreviewable by a Court”, Mr O’Gorman said.
“Over the 40 years I have practised criminal defence, the law has changed from the 70s and 80s when Judges had power to stop a case if the case was thought to be too weak to the current position where Judges have no such power”, Mr O’Gorman said.
“It is noteworthy in Mr Tostee’s case that the senior trial Judge, Justice Byrne, decided that the evidence, though weak, was enough for a jury to consider if Tostee had murdered Warriena Wright, Mr O’Gorman said.
“I gave a paper last weekend in Adelaide at an International Criminal Law Congress looking at developments in criminal law over the last 30 years noting that the law had reached an unsatisfactory position where the decision of senior Prosecutors to proceed with questionable charges was utterly unreviewable anywhere, particularly unreviewable in the Supreme Court”, Mr O’Gorman said.
Mr O’Gorman said that the powerful position of Prosecutors in deciding on what charge to lay arising from a set of facts thrown up by investigating police is that the centre of power in a criminal case lies not in the Courtroom but in the hands of a senior Prosecutor who decides what charge to lay and picks from a menu of available charges ranging from the most serious through to cases of medium severity and down to the most minor.
“This is a very topical and controversial issue as the Legal Affairs and Community Safety Committee of the Queensland Parliament prepares its report soon to be tabled in the Queensland Parliament on the Palaszczuk Government’s review of the Newman Government’s anti-bikie laws”, Mr O’Gorman said.
“The Explanatory Notes published by Attorney-General Yvette D’Ath acknowledges that under the revamped laws, a person may not face prison for the base offence (the offence a person is arrested for) but could be required to serve a mandatory 7 year sentence on top of a fine or some other non-jail Court order if a person is said to be a participant in a criminal organisation”, Mr O’Gorman said.
“It is clear that as with the Newman Government laws and so with the Palaszczuk Government laws the new proposed serious organised crime with circumstance of aggravation offence will catch non-bikies and will cover such low level criminal activity in a so-called organised crime context that the base offence may not even attract a term of imprisonment”, Mr O’Gorman said.
Mr O’Gorman said that the so-called protection against misuse of the very excessive mandatory imprisonment laws imposed by the Palaszczuk Government is that a decision to lay an organised crime charge will be made by the DPP.
“What the Tostee case shows is that such a prosecution decision is utterly unreviewable in Court, giving Prosecutors unprecedented power to pick the most serious charge resulting in a minimum of 7 years jail on top of the base offence itself not even attracting jail where a lesser charge is open to a Prosecutor to prefer”, Mr O’Gorman said.
Under the VLAD laws, three 18 year olds who take turn about to go into the Valley on a Friday night to buy marijuana in bulk for a Sunday afternoon smoke are likely to have been caught by the mandatory 15 years imprisonment regime under the very widely defined scenario of what constitutes organised crime.
Such a similar or close scenarios are open under the Palaszczuk laws currently before the State Parliament.
“The Palaszczuk Government laws have to be changed so that Prosecutors do not have totally unreviewable power to charge the most serious organised crime offence where a lesser charge would be appropriate and just on the facts of a given case”, Mr O’Gorman said.
“The Palaszczuk Government laws have to be changed so as to dilute the all powerful decision of a DPP Prosecutor to charge a top drawer offence attracting a mandatory prison term. Supervision of the laying of such charges has to be given to the Supreme Court”, Mr O’Gorman said.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
Dan Rogers Delivers Speech at the QUT United Nations Association Networking Event
Dan Rogers, director of Robertson O’Gorman, was invited to the recent QUT United Nations Association Networking Event to speak to students in relation to the protection of human rights.
Mr Rogers was asked to speak about his experiences working at the International Criminal Court in The Hague during 2012. However, students were encouraged to strive to protect human rights locally rather than idolising international human rights lawyers. This, he said, is important as part of a broader involvement in the law.
For Mr Rogers, protecting human rights means representing the rights and interests of vulnerable individuals in crisis. In criminal prosecutions, it means levelling the playing field when a client faces a prosecution by the State with all its might and resources. It means day-to-day advocacy and ensuring a fair outcome in the courtroom.
Call Robertson O’Gorman today on 3034 0000
Queensland's Abolition of the Statutory Limitation Period Regarding Institutional Sexual Abuse
The Premier introduced a Bill to Parliament recently which, if passed, will create an exception to the three year limitation period for personal injury claims in instances where the injury has resulted from sexual abuse in an institutional context.
Limitation periods are a part of Queensland law to remove the threat of open-ended liability; to ensure a defendant is not unfairly prejudiced in proceedings through inability to access documents to defend the claim; and to ensure disputes are resolved as quickly as possible.
Presently, the victims of sexual abuse are required to bring their claim for damages within three years of suffering the abuse. If they are under eighteen years of age at the time of the abuse, the limitation period begins upon reaching that age. It became clear in the recent Royal Commission that some victims take up to 22 years to speak publicly about the abuse they have suffered – more than seven times the current limitation period.
Recommendations 85-86 and 88 of the Commission’s Redress and Civil Litigation Report concerned the removal of state and territory limitation periods. These amendments are largely in response to those recommendations and provide for an exception to the three year limitation period where the injury is caused by institutional sexual abuse. This amendment will apply retrospectively and as such many victims will now have access to justice through civil action in the Queensland courts.
Notably, the amendments preserve the right of the court to stay proceedings where it would be unfair to the defendant to proceed.
There are reports that the Queensland Government is considering the introduction of a redress scheme which will allow victims to access compensation without embarking on the inevitably expensive and stressful court process.
After its presentation to Parliament on Tuesday, the Bill was referred to the Legal Affairs and Community Safety Committee for consideration until 1 November 2016. The Bill is supported by the opposition and is therefore likely to pass.
Follow these links to read more:
- Limitations of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016
- Explanatory Note
- Hansard
Robertson O’Gorman handles sexual abuse matters with utmost discretion. For experienced and comprehensive legal advice, call us today on 3034 0000.
Robertson O’Gorman listed as a leading Queensland Criminal Law Firm
For the second year in a row, the Doyle’s Guide has ranked Robertson O’Gorman as one of five firms considered to be ‘First Tier’ in Queensland Criminal Law.
In addition to the firm’s recognition, Terry O’Gorman was named a Preeminent Queensland Criminal Lawyer together with Dan Rogers and Leigh Rollason who were named Leading Queensland Criminal Lawyers.
The solicitors at Robertson O’Gorman work tirelessly to achieve the best results for their clients.
To contact Robertson O’Gorman, call 3034 0000.
Dominic Brunello to resume working at Robertson O'Gorman
Robertson O’Gorman welcomes Dominic Brunello back to the firm as he begins work this month.
Dominic has practiced as a criminal defence lawyer since his admission to the roll in 2001. Dominic was trained by Terry O’Gorman, Leigh Rollason and the barristers briefed by the firm. He is deeply committed to protecting the rights of individuals accused of crime by all proper and lawful means. Dominic worked as a solicitor for Robertson O’Gorman in the period 2004 to 2008.
In 2008 Dominic took a job with the Aboriginal Legal Service of Western Australia. His skills as an advocate and legal advisor were recognised by steady promotion. In 2011, he was appointed in-house Counsel.
In Western Australian a ‘fused’ legal profession allows concurrent practice as a barrister and solicitor. Dominic has appeared as a barrister before the District and Supreme Courts in jury trials (including for murder), sentence hearings, bail applications and pre-trial applications. He has successfully argued a substantial number of appeals against conviction and sentence in the Supreme Court and the Court of Criminal Appeal. Dominic has twice appeared before the High Court of Australia.
In 2016, Dominic decided to return to Brisbane and to Robertson O’Gorman. As a solicitor-advocate for Robertson O’Gorman, he will appear without counsel in all courts across Queensland. He will also work closely with senior barristers; undertaking the preparatory work so vital to laying the foundation for a successful defence in court.
Dominic is passionate about criminal law, the protection of human rights and broader social justice issues. He is married with one child.
Read more about Dominic here.