Since the outbreak of COVID-19, parents who have a co-parenting agreement or parenting orders have found themselves in uncharted territory. The courts have been operating differently due to the pandemic and are only hearing urgent family law proceedings and are doing so via audio-visual conferencing. As a result, parents are often left contemplating the safety of children and in many cases doubting whether they should strictly follow the existing co-parenting agreement or consent orders if this will pose a risk to the health and safety of a child. This blog post examines how parents can manage to comply with parenting orders and COVID-19 public health directions.
Australian case law surrounding parenting orders and COVID-19 is limited. However, the Family  Court of Australia and Federal Circuit Court have been clear that, as always, the best interests of the children are the paramount concern when making any decision. There is a presumption that court orders should be complied with. However, restrictions on movement and the closure of some state borders can make co-parenting difficult and in some cases may mean that failure to abide by the terms of the co-parenting agreement or consent orders during this period might be justified.
Media release by Chief Justice
In a Media release by the Chief Justice of the Family Court, the Honourable Will Alstergren, His Honour provided the following statements on managing parenting orders and COVID-19 restrictions:

“It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
“Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
“In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
“As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
“If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached…”

What if orders conflict with government directions?
In some cases, parenting orders and COVID-19 government directions may conflict. This may occur where changeover of a child is to occur at a school or at some other public venue that is not currently accessible. In these circumstances, it is recommended that parents work together and come to an agreement that is suitable for both parties and that abides by government directions, so that there is limited face-to-face contact with other people.
International case law
With limited precedents in Australia for these type of parenting issues during this pandemic, it is useful to refer to international cases to get an idea of how these matters can be dealt with. Although not binding in Australia, these decisions give us examples of how these issues may be dealt with here in the future.
In the recent Canadian decision of Ribeiro v Wright, a mother who had joint custody of a child with the father brought an urgent application to suspend in-person access to the child because of concerns the father would not maintain social distancing. The child resided with the mother during the week while the father had access on the weekends.
The Judge handed down judgment, stating:

“there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
In some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.
 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.”

The Ontario Superior Court Justice advised the parents to work in a “co-operative and conciliatory” manner…….. for the sake of our children” when managing parenting orders and COVID-19 restrictions.  Although this case is not binding here in Australia it shows a possible approach that might be reflected in future cases involving parenting orders and COVID-19.
If you are uncertain about your current family court orders and whether the orders currently in place are still in the best interest of your child, if the other party has breached the co-parenting agreement or parenting orders, or if you require assistance in any other legal matter, please contact Go To Court Lawyers.
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In January 2017, a Melbourne man drove his car through the busy Bourke Street mall, killing six people and injuring many more. After it came to light that the man had been on bail in relation to other offences at the time the tragedies occurred, Victoria’s bail laws were reformed to prioritise the protection of the community. The Honorable Paul Coghlan QC provided advice on bail reform to the state government, with the primary recommendation being that greater emphasis should be given to the assessment of the risk of further offending if the applicant is granted bail.
The recent bail reform has reframed provisions of the Bail Act 1977o ensure the maximisation of community safety whilst taking account of the presumption of innocence and the right to liberty. Under the new legislation, pre-trial liberty is a privilege rather than an entitlement, which primarily depends on a favourable assessment of risk. When a person has been charged with particular categories of offences, they now hold the sole responsibility of satisfying the court that the grant of bail is justified.
Exceptional circumstances
Under the new legislation, when a person is alleged to have committed a Schedule 1 or Schedule 2 offence whilst on bail, on summons or while subject to a Community Corrections Order, the accused must show that ‘exceptional circumstances’ exist that mean bail should be granted. Schedule 1 offences include serious property offences such as aggravated home invasion and serious drug offences. Schedule 2 offences include manslaughter, child homicide, child sex offences and serious violent offences such as intentionally causing serious injury. Applicants for bail who are charged with Schedule 2 offences also have the onus of satisfying the court of the existence of ‘compelling reasons’ for the grant of bail.
The Bail Act requires the court to have regard to the strength of the prosecution’s case, the applicant’s personal circumstances, and whether any factors suggest that the applicant poses an unacceptable risk. The primary consideration is whether all the circumstances, when viewed as a whole, can be taken as exceptional to the extent that bail is justified, even considering the serious nature of the charge. The courts recognise ‘compelling reason’ involves considering all the above relevant circumstances in addition to the applicant’s criminal history. A synthesis of all the factors must compel the conclusion that detention is not justified.
Bail reform and community protection
The changes to the Bail Act mean that courts are now permitted to use pre-trial detention to protect the wider community from perceived risks. Remand is an extremely effective safeguard against any re-offending during the judicial process. For this reason, remand confinement is not treated as punishment and prisoners are given maximum flexibility within their security rating and subjected to fewer restrictions. For example, where practicable, remand prisoners are held separate to convicted prisoners, have increased access to visitors and telephone calls, have access to legal resources including a legal library, are permitted to wear their own clothing if deemed appropriate and offered the opportunity (but not obligated) to work.
However, international studies suggest that more than 80 per cent of people who are released on bail do not commit further crimes while on bail. Further, studies have suggested that those on bail for violent crimes are some of the least likely to re-offend in a similar way while on bail. Based on this evidence, opponents of the new bail laws argue that the Victorian bail reforms address the behaviour of a small number of offenders and ignore the reality of the large majority of persons on bail who do not re-offend.
Bail reform and rehabilitation
If the court finds that an accused does not pose an unacceptable risk of the community as the first limb of a bail decision, a decision-maker will then consider the accused’s ‘surrounding circumstances’ when determining whether the imposition of bail conditions will mitigate risk (Section 5AAA, Bail Act).  The bail decision maker’s considerations of the accused’s ‘personal circumstances’ do not include the impact of pre-trial detention on the accused, which may include loss of employment and access to finances for legal representation, separation from family, reduced ability to prepare for legal proceedings and the dangerous environment of prison. This has led some commentators to criticise the new bail regime as one-sided.
The principle of rehabilitation, which is a crucial consideration when sentencing a defendant, is given little consideration at the time bail is granted or refused.  While rehabilitation is given a lot of weight when sentencing a person, pre-trial detention has been found to be associated with a 30 per cent increase in new serious offences and a 20 per cent increase in minor offending. Studies have also found that pre-trial release is associated with a reduced likelihood of reoffending. Advocates of more liberal bail laws, such as Deakin Law School professor Dr Marilyn McMahon, argue that while pre-trial detention may prevent further offending in the short term, it may undermine community safety in the long run and that courts considering the grant of bail should have greater regard for rehabilitation efforts by the accused.
Remand and a fair trial
It is often said that time spent on remand can reduce the length of the custodial sentence ultimately imposed on an individual who is found guilty. However, being remanded also often means that an accused has limited access to funds, resources and communication to further their criminal defence.
Further, the immediate detention of accused individuals may increase the likelihood of an accused pleading guilty in the hope of early release from prison by encouraging the court to impose a sentence of ‘time served’. This can mean that an accused who is likely to be found not guilty may plead guilty for the sake of expediency. It can also mean that a person who is likely to receive a non-custodial sentence may be sentenced to a custodial sentence in consideration of ‘time served.’
Having a criminal record that includes a custodial sentence can significantly increase the prospects of a person being sentenced to imprisonment for any future offences of a similar nature.
Further bail reform
It has been suggested that the primary question of bail should be whether an individual poses an unacceptable risk to society. In practice, courts are required to consider whether there is an unacceptable risk of the person failing to answer their bail, of reoffending if released, whether they present a threat to the welfare and safety of the community, or if there is a risk they will interfere with the justice process.  This simplified approach would avoid a reverse onus which requires an accused person to satisfy the court that they should not remain on remand.
Following the Victorian bail reforms, criticisms of the new laws have abounded, including that the Bail Act does not provide any guidelines as to how an accused’s personal circumstances should be weighted and regarded in terms of making the decision as to whether to grant or refuse bail.
It is a near-impossible task to predict the future conduct of any individual. However, advocates argue that the bail system can serve as a crime prevention tool for courts, by preserving an accused’s community ties and gainful employment and thus maximising their prospects of rehabilitation.
Advocates argue that it is not for courts to preempt possible future events in safeguarding the community, but to deal with events that have already occurred. They argue that the recent changes have foregone the safeguards and measures that have long protected the rights of accused individuals when charged with criminal offences. However, at this stage, there is no further bail reform being contemplated by the Victorian government.
If you require legal advice or representation, please contact Go To Court Lawyers.
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The Public Health and Wellbeing Act 2008 (the PHW Act) was enacted with the purpose of promoting and protecting public health in Victoria. It contains provisions that allow the State Government, and its Chief Health Officer, to make directions in response to public health concerns of national and international importance. The PHW Act confers wide-ranging powers that can be used to make public health directions such as the self-isolation direction after a state of emergency has been declared.
State of Emergency
Section 198(1) of the PHW Act allows Victoria’s Minister for Health to declare a State of Emergency in circumstances where a serious risk to health has arisen. A State of Emergency was declared by Victoria’s Minister for Health on 16 March 2020 for a period of four weeks. The declaration was made to assist with enforcing protective measures to manage the Coronavirus (COVID-10) pandemic. Prior to the declaration in March 2020, these emergency powers had never been utilised.
The declaration of a State of Emergency provides the Chief Health Officer with the following general powers (section 190(7) of the PHW Act):

Appointment of Authorised Officers (section 189, 199, 201 of the PHW Act)

The Chef Health Officer may authorise the appointment of officers to exercise any of the public health and emergency powers (as below). This can include a specified class or classes of authorised officers.

Public Health Risk Powers (section 190(1) of the PHW Act)

Authorised officers may exercise public health risk powers in furtherance to investigating, eliminating and reducing the public health risk. These powers include: closing premises; direct a person to enter or not enter premises; enter premises without a warrant and search and seize anything necessary; require the provision of information; inspect any premises; require cleaning or disinfection of premises; require the destruction or disposal of anything necessary; direct the owner of premises or any other persons to take any action necessary; and exercise general enforcement powers conferred on an authorised officer.

Emergency Powers (section 200 of the PHW Act).

Authorised officers are permitted to detain, restrict movement or prevent persons from entering the emergency area and to give any other direction reasonably necessary to protect public health.
Self-isolation Direction
The Chief Health Officer is empowered to issue directions in accordance with the emergency powers arisen from the State of Emergency (section 200(1) of the PHW Act). On 25 March the CHO issued the Self-Isolation Direction, providing as follows.
A person who is diagnosed with COVID-19 in the State of Victoria must return to and remain at the place in which they reside (self-isolation). They must not leave the premises except for the purpose of obtaining medical care or medical supplies; in any other emergency situation; or in limited outdoor circumstances where it is possible to avoid close contact with any other persons.
No other persons are permitted to enter the premises unless that person usually lives at the premises, is living at the premises for the purpose of self-isolation or for medical emergency purposes.
A person subject to self-isolation requirements will be discharged from self-isolation if they meet the criteria under existing Departmental requirements (currently 14 days).
The CHO has also issued various directions in relation to public gatherings, hospital visits and aged care visits.
Enforcement
On 24 March 2020, Victoria Police established Operation Sentinel – a team of 500 Police Officers to enforce containment measures put in place to manage Coronavirus. Where a person is found failing to comply with directions, Victoria Police can issue official warnings, direct that the person return to their home or to other location, issue an on-the-spot fine (infringement notice) or charge the person on summons, requiring them to attend court on a future date to answer the charge.
Penalties
It is an offence to refuse or fail to comply with a direction or requirement given in the exercise of the power under section 199 of the PHW Act.
The maximum penalties for an offence are as follows:

For an individual – a fine of up to $20,000.00; and
For a body corporate (an association, organisation, company or institution) – a fine of up to $100,000.00.

The maximum on the spot fines (infringements) for breaching directions are as follows:

$1,652.00 for an individual; and
$9,913.00 for a business.

Defence
A person is not guilty of an offence of refusing or failing to comply with a direction if they had a reasonable excuse for the refusal or failure.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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As businesses shut down or reduce their operations due to the spread of COVID-19, parties to commercial contracts may be seeking to resile from their contractual obligations. One way a party to a commercial contract may be excused from performing all or some of its obligations is through reliance on a force majeure clause. This article outlines how the outbreak of the Coronavirus and force majeure clauses may allow parties to be relieved of their obligations.
COVID-19
The outbreak of the COVID-19 novel Coronavirus in December 2019 has already caused over 45,000 deaths around the world with almost a million people testing positive for the virus by the beginning of April 2020.  The global recession that is likely to follow is already being predicted to be ‘the mother of all financial crises’, which may involve long-lasting restrictions on business and the use of public space.
In the meantime, short- and medium-term restrictions on commercial activity are making compliance with pre-existing contractual obligations impossible for some parties.
Force majeure clauses
A force majeure clause is a clause that allows parties to a contract to be excused from their contractual obligations when circumstances beyond their control prevent them from performing them. Many commercial contracts include a force majeure clause. A force majeure clause may be activated when circumstances prevent parties from performing all or part of their contractual duties.
A force majeure clause may also provide a right to terminate the contract if the force majeure event continues for a stipulated period of time. In such a case, the clause would state which of the parties is entitled to retain the benefits of the money paid or work performed should the agreement be terminated.
The scope and effect of a force majeure clause will depend on the wording of the clause and the facts of the case. However, the following general principles are likely to be relevant to the activation of a force majeure clause by a pandemic:

The party seeking to activate the force majeure clause bears the burden of proving the force majeure event;
The force majeure event must be beyond the control of the parties;
A force majeure event cannot alter unfulfilled contractual obligations if performance was due prior to the force majeure events.

Invoking a force majeure clause
To successfully invoke a force majeure clause, a party must demonstrate that is it impossible for it to perform some or all of its obligations under the contract. It is not sufficient to show that performance would simply be more difficult, costly or onerous than under normal circumstances.
It is always important to exercise caution when invoking a force majeure clause, as unfortunate consequences can flow from seeking to do so unsuccessfully. This can include being found to have repudiated the contract.
Before seeking to invoke a force majeure clause, a party should consider all its circumstances, including whether it is still possible to complete some parts of the contract or whether the whole agreement is affected. Parties should also consider whether completion of their contractual obligations has become permanently impossible or whether this is a temporary situation.
Parties should also consider whether the other party is also unable to fulfil its obligations because of the force majeure event.
Is the Coronavirus a force majeure event?
The answer to this question will depend on the wording of each individual force majeure clause. In some cases, the outbreak of COVID-19 will clearly fulfil the requirements of the clause, where the clause specifies that particular events such as quarantine or an epidemic trigger its operation. In other cases, a force majeure clause may be triggered by events that occur as secondary consequences of the pandemic, such as the closure of ports or airports, which may make deliveries impossible.
A party may seek to invoke a force majeure clause because circumstances in Australia have made it impossible to perform some or all of their contractual obligations. They also seek to invoke it on the basis that circumstances in another country make it impossible for contractual obligations to be fulfilled
Drafting contracts
Parties who are currently negotiating terms of commercial contracts should consider whether a force majeure clause ought to be included. This may provide protection should their obligations under the contract become impossible or unduly onerous. This may occur, for example, because critical suppliers are unable to operate for long periods.
What if there is no force majeure clause?
Force majeure clauses are generally not implied into contracts. They must be explicitly included. However, if a contact does not include a force majeure clause, there may still be options available to a party who is unable to perform under the contract.
Frustration
When a force majeure clause is unable to be relied on based on the Coronavirus outbreak, but where a contractual obligation has become impossible to perform as a direct or indirect consequence of the virus, the party may alternately rely on the common law principle of frustration.
If you require legal advice or representation in a civil law matter or in any other legal matter, please contact Go To Court Lawyers.
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On 29 January 2020 the Health Minister declared a public health emergency in respect of the whole of the state of Queensland. The public health emergency has been extended until 19 May and may be extended further. Queensland has passed a number of public health directions that apply for the period of the public health emergency. These restrict the operations of businesses, mass gatherings and impose rules for those in self-isolation. The directions will apply until the end of the public health emergency or until they are revoked or replaced.
Public health emergencies
Under Section 119 of the Public Health Act, the Minister has the power to declare a public health emergency when this is necessary to minimise or prevent serious adverse health effects. A public health emergency lasts for a period of seven days but may be extended for a period of up to 90 days.
Self-isolation
Perhaps the best known of all the public health declarations relates to self-isolation. The self-isolation directive requires anyone diagnosed with COVID-19 to stay at home until cleared from self-isolation.
A person in self-isolation may leave the premises only to obtain essential medical care or medical supplies or in an emergency and may do so only by private vehicle or by taxi or rideshare with the person wearing a protective mask. The person is self-isolation must not permit another person to enter the premises unless that person also lives there or for medical or emergency purposes.
Border restrictions
Starting on the 26 March 2020, public health directions apply to Queensland’s borders. Anyone arriving in the state is required to quarantine for 14 days unless they are an exempt person, such as persons transporting food, emergency and health workers and some classes of FIFO workers.
Person arriving by aircraft must provide details of where they intend to stay while in Queensland and any travel they have done in the last 30 days (unless an exemption applies).
Private residences
From 27 March 2020, a person in control of a residence must not allow more than ten people to be in the residence at once (unless of them ordinarily live at the residence). They must take reasonable steps to encourage people in the residence to practice social distancing as much as possible.
Home confinement
Persons are directed not to leave their residences except for permitted purposes. Gathering of more than two people who are not from the same household are not permitted, except for certain purposes.
Permitted purposes for leaving the home include buying food and essential good or services, getting medical treatment or supplies, exercising with a maximum of one other person, to perform work that cannot be done from home, to care for a close family member, to attend court, a funeral or for the purposes of education that cannot be obtained from home.
A person who leaves home for a permitted purpose may be accompanied by members of their household or by one other person.
Trading hours
During the Coronavirus crisis, food and grocery stores are allowed to open from 7am and to limit access to certain classes of person at that time to allow those persons to purchase necessities.
Non-essential businesses
Owners and operators of non-essential businesses must not operate their business during the public health emergency, except as provided under public health directions. This means that food outlets may only operate to provide takeaway, real estate agents may only display properties by appointment, and hotels may continue to provide accommodation with a limit of two people in any communal area at a time.  Cinemas, nightclubs, strip clubs, gyms, playgrounds, theme parks and museums must not open.
Places of worship may conduct weddings of no more than five people and funerals of no more than 10 people.
Aged care
During the crisis, the classes of persons who may access aged care facilities are limited to prospective residents, staff, providers of goods and services, for health care, end of life support, emergency and law enforcement. All other visitors are limited to one care and support visit per day per resident.
Hospital care
Hospital visitors are limited to one visit per day per patient with a maximum of two visitors for a maximum duration of two hours. However, if a patient is under 18, disabled, or admitted for an emergency or pregnancy, they may have a support person with them at all times.
Penalties for breaching public health directions
Failing to comply with any of these public health directions is an offence and attracts a penalty of a fine of 100 penalty units ($13, 345).
If you require legal advice or representation in relation to public health directions or in any other legal matter, please contact Go To Court Lawyers.
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On 30 March 2020, New South Wales introduced restrictions on public gatherings in response to the COVID-19 pandemic. The restrictions were introduced as an order by the Health Minister under the Public Health Act. They limit the circumstances in which a person may leave the house, the number of people who can gather in public places and also direct the closure of certain premises. The restrictions on public gatherings and movement are enforceable from 31 March 2020 and will be in force until the end of 29 June 2020 unless revoked earlier.
Power to make orders
Under Section 7 of the Public Health Act 2010 (NSW), the Health Minister may make orders or give directions that he or she thinks appropriate in response to a public health risk. Such an order can declare any part of the state to be a public health risk area and contain directions the Minister considers necessary to:

Reduce or remove the public health risk in the area;
Segregate or isolate inhabitants of the area;
Prevent or conditionally permit, access to an area.

Orders and directions made under this provision remain in force for a period of three months. Therefore, the restrictions on public gatherings and movement will apply until 29 June.
Penalties
Section 10 of the Public Health Act makes it an offence to fail to comply with a direction. The maximum penalty is imprisonment for six months or a fine of $11,000, or both. A further fine of up to $5,500 can be imposed for every day that the direction continues to be disobeyed. Corporations face a penalty of $55,000 for an offence and a further $27,500 for each day the offence continues.
These penalties apply to any individual or corporate body that breaches the new restrictions on public gatherings.
Movement
While the order is in force, persons in New South Wales are not allowed to leave their place of residence without a reasonable excuse. Reasonable excuses are listed in Schedule 1 of the order and include:

Obtaining food and other goods and services for the personal needs of the household or for vulnerable persons;
Travelling to work if the person cannot work from home;
Travelling to drop off or pick up a child from childcare;
Travelling to facilitate school attendance if the person attending school cannot learn from home;
Exercising;
Moving residence;
Obtaining medical care or supplies;
Attending a wedding of no more than 5 people or a funeral of no more than 10 people;
In emergencies.

Taking a holiday is expressly declared not to constitute a reasonable excuse for leaving home.
The order states that the restrictions on movement do not apply to those who are homeless.
Restrictions on public gatherings of more than two
While the order is in force, more than two people may not gather in public place. The restriction on public gatherings does not include members of the same household. It also does not include essential gatherings such as work gatherings, gatherings to provide medical care or emergency assistance,  to facilitate a move of residence, to fulfil legal obligations or to conduct a wedding at which there are no more than five people or a funeral at which there are no more than ten.
A full list of gatherings that are classed as essential gatherings is included as Schedule 2 of the order.
 Closure of premises
The following premises are not allowed to open to the public while the order is in force:

Pubs, clubs, hotels and food and drink premises (except to sell takeaway)
Entertainment venues;
Amusement centres;
Casinos (except to provide accommodation);
Indoor recreation facilities;
Places of worship (except to conduct weddings or no more than five people or funerals of no more than ten);
Beauty salons;
Markets that are not primarily food markets;
Camping grounds;
Educational facilities;
Community facilities;
Sex services premises.
Swimming pools;
Skate parks
Strip clubs;
Gyms.

Open for inspections may not be held of real estate offered for sale or rental. However, an individual may be shown a property by appointment.
Persons allowed on premises
Owners and occupiers of premises must not allow more than 500 persons to enter at a time (for an outdoor space) and must not allow more than 100 persons to enter (for an indoor space). Persons must not be permitted to enter premises if there is not enough space to allow four square metres of space for each person.
Exemptions
The Minister can grant an exemption to the order in writing and subject to conditions that the Minister considers appropriate.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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Due to the COVID-19 crisis, courts in many locations are changing the way they operate and are keeping personal appearances to a minimum. New South Wales courts have adopted the practice of holding all court appearance by phone or video conference, except where there are exceptional circumstances. This article will outline the changes brought to the court system by COVID-19 and each individual court and COVID-19 in New South Wales.
Local Court and COVID-19
People who are not involved in Local Court proceedings must not attend court. Persons who are parties to matters should contact the Local Court Registry to find out if they need to attend in person. If you are advised that you need to attend court, you must not do so if you have been overseas in the last 14 days, if you have had contact with someone who has tested positive for COVID-19 in the last 14 days or if you are feeling unwell.
Committal proceedings, defended hearings and criminal matters where the accused is not in custody will be adjourned to a future date and parties will be notified in writing of the adjournment date.
Defendants who are in custody and wish to apply for bail will have their bail applications heard over Audio Visual link. If bail is refused, the matter can proceed to be finalised over Audio Visual link once the parties are ready to do so.
A person charged with a summary offence can enter a plea by filling in a Written Notice of Pleading . and returning this to the court. However, if a plea of not guilty is indicated on a Written Notice, the matter will not proceed to a defended hearing at this time. If a plea of guilty is entered by Written Notice, the court will inform you in writing of the next step.
Urgent application for interim Apprehended Violence Orders (AVOs) will still be heard. Contested hearings on final AVO application will be adjourned to a later date.
Other urgent application can be made to the Local Court by email, outlining the nature of the application and why it is urgent.
Jury trials
Jury trials have been temporarily suspended in the NSW Supreme Court and District Court. Jury trials that had already commenced when the Coronavirus restrictions were put in place will continue.
District Court and COVID-19
Starting on 1 April 2020, the District Court of NSW will suspend all Judge alone trials, sentencing hearings, appeals, arraignments and readiness hearings where the defendant is not in custody. All these matters will be re-listed on a future date and the parties notified of the new date. These measures will be reviewed on 1 May 2020.
The District Court will continue to hear criminal matters where the defendant is in custody. Application to vary bail will be dealt with by a judge in chambers.
Supreme Court and COVID-19
Registrars Lists and Judges Lists will be dealt with as much a possible via phone link and videolink. Consideration will be given to dealing with Appeals over phone or videolink. Criminal Lists, including Bails and Arraignments will be heard as usual.
NCAT and COVID-19
From 30 March 2020 all NCAT hearings will be conducted by phone, videolink or on the papers. Documents can be filed by emailing them to the Tribunal. The public is asked to try to avoid attending the Tribunal registry in person.
Face-to-face hearings can be conducted only with the prior approval of the president.
Do not attend
Do not attend any court or tribunal if you have been overseas in the last 14 days, have had contact with someone who has tested positive for COVID-19 in the last 14 days or are feeling unwell with sore throat, fever, shortness of breath or cough.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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Attending court in person is generally mandatory in any court matter with appearances by phone or video conference reserved for when there are exceptional circumstances. However, due to the Coronavirus court appearances by phone and video are to become the new normal, with appearances in person limited to urgent matters. This article outlines how Queensland courts have reviewed their operations to remain consistent with health advice in the era of COVID 19.
Magistrates Courts
Under Practise Direction 3 of 2020, the Queensland Magistrates Court has directed that from 30 March 2020 there will be no physical appearances in the Magistrates Court except in the following situations:

by an aggrieved in an urgent non-police domestic violence application;
by the media;
or with leave of the court.

This means that the vast majority of Magistrates Court matters will from now on be conducted over the phone or by video link. Parties to court matters can contact the court their matter is listed in to obtain the details needed to join the conference call.  Parties must provide any documents they seek to rely on to the court by email.
Work the court will undertake during the crisis
The Magistrates Court has indicated that it will undertake the following work while the Coronavirus restrictions are in place:

Matters where the accused has been in custody overnight;
Urgent domestic violence applications;
Urgent child protection applications;
Bail applications;
Domestic violence applications already before the court;
Sentences where the defendant is likely to be released from custody;
Committal and summary matters where the defendant is in custody;
Urgent regional QCAT matters heard in the Magistrates Court;
Applications under the Police Powers and Responsibilities Act;
Civil applications to be dealt with on the papers (ie without oral evidence);
Other matters with leave from a Magistrate.

During the Coronavirus court appearances in these matters will occur by phone or video link, including where the matter is listed before a circuit court.
Currently listed matters
All criminal and civil matters already listed for mention before the court will be adjourned to a future date. Parties and their lawyers will be informed of the adjournment date in writing. In criminal matters where the accused is on bail, bail will be extended in the defendant’s absence. Temporary orders will be extended for the period of the adjournment.
New civil matters
All civil applications will be dealt with on the papers. If a party believes they will be advantaged by having a matter dealt with on the papers, they may seek leave of a Magistrate to have the matter heard in person.
New criminal matters
All criminal matters where the accused is not in custody will be adjourned for a period of at least two months. No appearance is required by the defendant.
Electronic pleas of guilty
In some Magistrates Court criminal matters, it is possible to enter an electronic plea of guilty. This option is available if you’ve been charged with a  minor offence and were summonsed or given a Notice to Appear at court.
Urgent applications
Where a party believes that delay in hearing a matter would cause substantial prejudice, they can apply to have the matter heard urgently. This application should be made by email
Children’s court
From 30 March 2020, all Children’s Court matters will be conducted by phone or video conference, including matters where the child is in custody.
Currently listed matters
All currently listed criminal and child protection matters will be adjourned to a future date and parties notified of the new date in writing. Orders will be extended for the period of the adjournment.
All new criminal matters where the child is not in custody will be adjourned for at least two months. Applications can be made by email for a matter to be heard urgently where a party believes delay will cause substantial prejudice.
Supreme and District Courts
The Chief Justice for the Supreme Court has suspended all new jury trials in the Supreme Court and District Court due to the Coronavirus. Criminal trials that have already started will continue. Other Supreme Court and District Court matters will proceed. The court has indicated it will continue to monitor the advice of health authorities closely and to act accordingly.
QCAT
Starting on the 39 March 2020, the following QCAT matters will be heard over the phone or via video conferencing except where there are exceptional circumstances:

Guardianship matters
Urgent Minor Civil Dispute Tenancy matters
Hearings (including appeals) that have already been listed to be heard at Queen St, Brisbane the week commencing 30 March 2020.

All other QCAT matters will be adjourned to a date in the future. Directions Hearings, Compulsory Conferences and Mediations will be conducted over the phone. Urgent applications to QCAT can be made by email to the QCAT registry.
Attending court
If you are feeling unwell and have been overseas in the last 14 days, do not attend court.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.  
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The Victorian government has put in place a number of emergency restrictions in an attempt to limit the spread of the Coronavirus. These emergency restrictions have been passed under the emergency power of the Public Health and Wellbeing Act and will be in place until they expire on the 13th April. They affect when persons may leave their homes, who may attend hospitals and aged care facilities and the size of gatherings that are permitted. They also set out what is required of people who must self-isolate and who are entering Victoria from overseas.
Emergency powers
Under Section 200 of the Public health and Wellbeing Act, authorised officers have the power to detain persons, restrict the movement of persons, prevent persons from entering the emergency area or give other directions that they consider necessary to protect public health during a public health emergency.
Stay at home
The Stay at Home Directions apply from the 30th March 2020 until the 13 April 2020.  During the period these emergency restrictions apply, persons in Victoria are not allowed to leave the home except for one of the following purposes:

To obtain necessary good and services;
For care and other compassionate reasons, such as escaping harm or violence;
To attend work or education, if unable to work or study from home;
To exercise;
For an emergency, as required by law or to move to new premises.

Indoor gatherings
Until 13 April, no person in Victoria may enter a single undivided indoor space if more than one other person is in that space, unless all the persons ordinarily live in the same household. During the same period, a person must not allow another person into their home unless it is necessary for the purposes of work, study, care, medical or emergency purposes or to conduct a private inspection of the property.
Outdoor gatherings
While the emergency restrictions are in place, more than two people may not gather in an outdoor space except for the purpose of a wedding or a funeral (as set out below) or where it is necessary for the purposes of work or study.
Wedding and funerals
During the period the emergency restrictions are in place, weddings are permitted to take place provided a maximum of five persons is present, Funerals are permitted to take place with a maximum of ten persons present.
Hospital visitors direction
A direction is in place that, until 13 April, persons must not enter or remain in a hospital unless they are:

A patient of the hospital;
A worker at the hospital;
A visitor at the hospital, such as the parent of a patient who is under 18, the carer of a disabled patient or the partner of a pregnant patient. Other visits are limited to one per day per patient.

Aged care
A direction has also been passed placing emergency restrictions on who may enter aged care facilities. This is currently limited to staff of the facility, providers of goods and services or medical and health services. Other visits are limited to one per day per resident, with the exception of end of life support. Persons may not enter aged care facilities if they have been overseas in the last 14 days, have symptoms of COVID-19 or are aged under 16 (except for end of life support).
Isolation
A person who has been diagnosed with COVID-19 in Victoria must immediately go to premises and remain there until clearance from self-isolation is given OR go to a hospital for medical treatment and then proceed to premises until clearance form self-isolation is given.
A person in self-isolation must not leave the premises except to get medical care or in an emergency. They must not allow others into the premises unless the other persons are self-isolating with them.
Penalties
Failure to comply with these directions can result in a fine of up to 120 penalty units ($19,826.4) for an individual and up to 600 penalty units ($99,132) for a corporation.
It is a defence to a charge of failing to comply with these directions if the accused had a reasonable excuse.
Detention notice
Persons who arrive in Victoria from overseas after 28 May 2020 must be quarantined in a hotel room for 14 days and must cooperate with their detention for that period. Persons to whom this direction applies must proceed immediately to the vehicle provided to take them to a hotel and then proceed immediately to their room. They must not leave the room unless given permission to do so for medical purposes or in any emergency.
A person in detention must not allow any other person into the room with them except for other person being quarantined with them. They are permitted to communicate with people outside the room by phone. Their detention will be reviewed every 24 hours.
Failing to comply with a detention notice is an offence which attracts a fine of $19, 826.40.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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In 2017, in the wake of the same-sex marriage poll, the federal government announced its intention to look into the need to pass laws protecting against religious discrimination. In December 2019, the second draft of the Religious Discrimination Bill was released. The Bill contains provisions that guard against discrimination on the basis of religion, but it also allows for discrimination to occur in a variety of situations where such discrimination is the result of religious conviction.
The Religious Discrimination Bill has been criticised as unnecessary and for upholding religious freedoms at the expense of other human rights. Human rights groups have slammed Prime Minister Scott Morrison for releasing the draft bill in the middle of the bushfire crisis, while many Australian had their attention focussed elsewhere.
Others have welcomed the Bill, saying that religious discrimination requires specific legislative protections as exist for sex, age and disability.
So what does the Religious Discrimination Bill seek to do?
Overrides existing discrimination laws
The Religious Discrimina Bill, if passed, will override existing Commonwealth, State and Territory anti-discrimination laws.
Section 42 of the Bill provides that a statement of belief does not constitute discrimination unless it is malicious or likely to, harass, threaten, seriously intimidate or vilify another person or group of persons.
If the Bill is passed, a person who makes a statement that has the effect of vilifying a person on the basis of their sex, sexual orientation or another attribute, could not be sued under anti-discrimination law if the statement was based on a religious belief unless the statement is made with ‘malicious intent’.
This would undermine current anti-discrimination protections that apply in situations like a counsellor telling a gay patient they are going to hell or a doctor telling a gender diverse person that God made men and women in his image.
Allows religious schools to discriminate
The bill permits religious schools to fire staff on the basis of their sexuality or marital status. It also permits such schools to expel students on the basis of their sexual orientation or religious belief.  This means that a student who identifies as gay or lesbian could be expelled as could a student who has started questioning their Christian faith.
Allows health care providers to discriminate
The bill allows medical practitioners to refuse to treat patients on the grounds of religion. This means that a doctor could refuse to treat a patient because of the patient’s religion and it also means doctors could refuse to perform a procedure or to prescribe medication that they have a religious objection to.
For example, a Christian doctor could refuse to treat Muslim patients and a Catholic doctor could refuse to prescribe contraception. These doctors would be under no obligation to refer their patients to other practitioners who do not have such religious objections, as must currently occur when a medical practitioner has a conscientious objection to performing a procedure (for example, an abortion).
Creates exceptions relating to work
Whilst the Religious Discrimination Bill prohibits religious discrimination in employment, it also sets out numerous exceptions relating to work. Section 32 makes it permissible to discriminate on the basis of religious belief or activity in relation to a position as employee or partner where the person’s religion would mean they were unable to carry out the inherent requirement of the position. In effect, this means that a person could be denied a promotion or transfer on the basis of their religion in some circumstances.
Section 32(8) also allows for religious hospitals, aged care facilities and accommodation to discriminate on the basis of religion in their recruitment and to require staff to act consistently with that faith while at work.
Protects corporations
Section 59 of the Bill extends the operation of the legislation to cover corporations. This means that a corporation with a religious affiliation could claim discrimination by an individual or another business.
Public response to the Religious Discrimination Bill
The passage of the bill has generated debate as to whether a religious discrimination framework is needed in Australia. While supporters say it is essential to the survival of faith in the country, others say that it is embarrassing, in a secular democracy, for religions to be privileged in this way. Others say it is simply not necessary as existing anti-discrimination laws are sufficiently strong.
The Victorian Equal Opportunity and Human Rights Commission has expressed concern that the bill privileges religious belief over other discrimination protections, that it restricts employers’ right to foster safe and inclusive workplaces, that it undermines access to inclusive medical services and that it unnecessarily expands the religious exemptions under existing anti-discrimination law.
Submissions are open on the draft Bill until 31 January 2020.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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A local government body in Western Australia is planning to ban the practice of wheel clamping within its boundaries. The City of Stirling recently voted unanimously to draft the Immobilisation and Detention of Vehicles Local Law 2019. The bill would ban wheel clamping in most circumstances and regulate the detention of vehicles including on private property.
Wheel clamping currently occurs in WA, with private contractors carrying out wheel clamps at the request of an individual, but the legality of the practice is questionable. If the new laws are passed, the practice will be forbidden but exceptions will apply in limited circumstances. These include where parking facilities were controlled by access gates and drivers must pay a fee to leave the facility, where a government officer has the power to detain a vehicle, or where there is an agreement allowing for the vehicle to be detained – for example when a mechanic holds a lien over a vehicle. Wheel clamping businesses that break the proposed laws could be fined $500 if an infringement is issued or up to $5000 if the matter is heard in court.
Road Traffic Act
The Road Traffic (Administration) Act 2008 applies to all roads in Western Australia, including all highways, roads and streets open to, or used by, the public. This includes carriageways, footways, reservations, median strips and traffic islands. This definition includes some parking facilities on private properties, which fall into the category of “reservations”.
Section 90 of the RTA states

Any person who unlawfully interferes with the mechanism or parts of any motor vehicle shall be guilty of an offence under this Act Applying a wheel clamp to a vehicle breaches this section and could have dire consequences in the event of a medical or other emergency.

Under the Road Traffic Act as it stands, therefore, wheel clamping already technically constitutes an offence. However, it is not an offence that is even prosecuted as it has become an accepted practice.
What happens after a wheel clamping?
When a car’s wheels have been clamped, the owner must pay the private contracting company which applied the clamp to remove it. A private company clamps the wheels of a car on behalf of a private individual, such as a property owner or a mechanic.
The contractor will refuse to remove the clamp unless the owner of the vehicle makes an on-the-spot payment. Western Australia’s largest wheel-clamping contractor charges $170 to remove a wheel-clamp it has applied to a vehicle.
Is wheel clamping legal?
It is arguable that such demands for payment constitute a threat to do (or not to do) an act to gain a benefit. Such a threat is an offence under Section 338A of the Criminal Code Compilation Act 1913, which can attract a prison sentence of up to 7 years.
WA’s largest wheel-clamping contractor claims that a person who owns land may impound a vehicle which is wrongfully on that land to secure payment. It maintains its lawful right to apply wheel clamps to vehicles parked on private property.
Despite the fact that many people simply accept the charges imposed by private agencies as “fines”, only a statutory authority has the power to impose a fine. The charges imposed by wheel clamping contractors can only be enforced under the common law of contract and/or trespass. If characterised as a penalty, they are not enforceable at all.
For the party seeking to enforce such charges, they must be characterised as “liquidated damages”. As such they must reasonably reflect the loss or damage suffered by one party, in this case, the property owner, caused by the errant parking behaviour of the other. The wronged party bears the onus of proving any damage suffered as a result of the actions of the other party.
Conclusion
It appears wheel clamping is already unlawful in Western Australia and it is simply the reluctance of authorities to enforce the law as it stands that allow for the practice to continue. Supporters of the proposed new laws believe it is necessary for local laws to be enacted to specifically target the practice of wheel clamping. Opponents of the changes say it would be more appropriate for local governments to pressure police to enforce the existing legislation.
The draft local law is open for public comment until January 31, 2020.
 
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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In recent months, the Department of Home Affairs (DOHA) has been increasing the range and scope of migration options for prospective skilled visa applicants who are willing to live and work in regional Australia. On 26 October 2019, Prime Minister Scott Morrison announced that the government would be stepping up its commitment to regional Australia by ‘ensuring our migration system encourages skilled migrants to live and work in our smaller cities and regions.’ In March 2019, the government announced that permanent migration cap would be reduced from 190,000 to 160,000 places and that 23,000 of these places would be set aside for regional migration. It was later announced that the regional migration quota would be increased to 25,000.
On 16 November 2019, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman, stated:
‘From today, skilled migrants who commit to living and working in a regional area will have access to two new skilled provisional visas, part of the Morrison Government’s commitment to tackling skills shortages in regional Australia.
This year, the Government has reduced the cap on Australia’s permanent migration programme from 190,000 to 160,000. Within that reduced cap, the number of places allocated to regional visas has increased to 25,000.
Successful regional visa applicants will become eligible to apply for permanent residency if they can demonstrate they have lived and worked in regional Australia for three years.’
Regional Occupation List
In March 2019, DOHA introduced a Regional Occupation List (ROL) containing 77 additional occupations. Many of the occupations listed are in the livestock and agriculture field, but the list also includes occupations such as Medical Administrator, Fitness Centre Manager, Policy Analyst, and Multi-media Designer.
DOHA has also changed the definition of ‘regional’ to include all of Australia except for Sydney, Melbourne and Brisbane in a further bid to encourage regional migration.
New skilled regional visas
On 16 November 2019, DOHA introduced two new skilled regional visas. These are the Skilled Work Regional (Provisional) visa (subclass 491) and the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494).
The 491 visa has replaced the Skilled Regional (Provisional) Visa (subclass 489), and the 494 visa has replaced the Regional Sponsored Migration Scheme Visa (subclass 187) – Direct Entry stream. Applications for the 489 or 187 submitted prior to 15 November 2019 will still be processed and may still be granted.
Applications for the new 491 and 494 regional visas are eligible for priority processing. These visas will encourage migrants to live in regional areas for a longer period than the previous visas. Commencing on 16 November 2022, the new visas will provide a pathway to a second-stage subclass 191 permanent residency regional visa.
The 491 visa requires the applicant to be nominated or sponsored by either an Australian state or territory government agency or by an eligible relative. The 494 visa requires the applicant to be nominated by an employer from a business lawfully operating in Australia.
How are the new visas different?
One of the primary differences between the 491 and the 494 visas is that the 491 is a ‘points tested’ visa. That means the applicant must score a certain number of points (65) on DOHA’s points table in order to be eligible.
A prospective 491 applicant must submit an Expression of Interest via DOHA’s Skill Select interface prior to applying. Only those who receive an invitation from DOHA can apply for the 491. Both Sections 491 and 494 of the Migration Act 1958 require a skills assessment in the nominated occupation.
One benefit of the new regional migration scheme is that it offers more points on the points table to 491 visa applicants. The new ‘schedule 6D’ points include:

15 points for nomination by a State or Territory government agency or sponsorship by a family member residing in regional Australia;
10 points for a skilled spouse or de facto partner;
10 points for certain Science, Technology Engineering and Mathematics qualifications;
5 points for a spouse or de facto partner with ‘competent English’;
10 points for applicants without a spouse or de facto partner.

Designated Area Migration Agreements
These new visas have been introduced in addition to the recently rolled out Designated Area Migration Agreements (DAMA). DAMA allow regional businesses to create a labour agreement directly with the Australian Government to employ skilled and semi-skilled overseas workers in occupations that might not be on the DOHA’s skilled occupations lists.
There are 7 DAMAs currently in effect:

Northern Territory DAMA;
Great South Coast DAMA (Victoria);
Goldfields DAMA (Western Australia);
South Australian Regional Workforce Agreement: which focuses on agribusiness, forestry, health and social services, tourism and hospitality, construction and mining.
Adelaide Technology and Innovation Advancement Agreement: which focuses on Adelaide’s high-tech growth industries including defence, space, technology and advanced manufacturing industries;
Far North Queensland (FNQ) DAMA: Available for businesses operating in the Cairns, Port Douglas, Atherton, Mareeba and Cassowary Coast.
Orana DAMA (NSW).

Each DAMA region has its own unique occupations list.  Each DAMA skilled occupations list can be found on the corresponding DAMA region website. To be eligible for DAMA, Australian businesses must:

have been operating for at least 12 months;
meet obligations to employees;
seek to employ overseas workers to fill full-time positions with duties that align with one of the occupations on the DAMA list;
be able to demonstrate they cannot fill the position locally with Australian citizens or permanent residents; and
be able to provide terms and conditions of employment to overseas workers that are in accordance with those offered to Australian workers employed in the region.

The DAMA business eligibility requirements are similar to those for the 482 standard business sponsorship visa.
Conclusion
The introduction of new visas and of DAMA is intended to encourage regional migration by skilled workers to remote Australia. This is being achieved by including a broader range of skilled occupations on the relevant skilled occupations lists and changing the definition of ‘regional’ to include all of Australia, excluding Sydney, Melbourne and Brisbane. The Morrison Government claims the population management strategy will also boost the numbers of international students undertaking courses in regional Australia, and generally assist with economic growth in those areas.
If you require legal advice or representation in a regional migration matter or in any other legal matter, please contact Go To Court Lawyers.
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Concerns are being raised about the legality and appropriateness of strip searches carried out on minors by New South Wales police. The issue has come to light after Redfern Legal Centre obtained data on strip searches conducted in the last three years, revealing that there were 122 strip searches of underage girls, including two 12-year-olds in that period.
Under New South Wales legislation, police are only allowed to conduct field strip-searches where the urgency of the situation requires it. Where the person being searched is a minor, police are generally required to arrange to have a parent, guardian or support person present.
However, a number of complaints have been made recently about the strip-searching of minors in circumstances of questionable legality. A Law Enforcement and Conduct Enquiry last month heard evidence that some police did not know their obligations in relation to minors.
Power to conduct strip searches
Under Section 31 of the Law Enforcement (Powers and Responsibilities) Act 2002, police in New South Wales have the power to carry out a strip search in a police station where the police officer believes on reasonable grounds that the strip search is necessary for the purposes of the search.
The police have the power to carry out a strip search in another place where they believe on reasonable grounds that the strip search is necessary for the purposes of the search and the seriousness or urgency of the circumstances make the strip search necessary.
Section 33 of the act provides that when a minor is strip-searched, this must occur in the presence of a parent, guardian or support person. However this requirement can be dispensed with if delaying the search would result in evidence being concealed or destroyed or an immediate search is necessary to protect the safety of a person.
Where a search of a minor is not conducted in the presence of an adult, the police must make a note of the reasons for this.
Children below the age of 10 must not be strip-searched.
Redfern legal centre report
A report released in September 2019 by Redfern Legal Centre examined the practice of strip-searches in NSW and their impact. It noted that strip searches are on the rise in the state, with an increase by 46.8 per cent over the last four years with police finding nothing during the search in 64 per cent of cases. The report argued that strip searches raise major issues of police accountability and should only be conducted in exceptional circumstances. It noted that strip-searches re-traumatise survivors of sexual assault, with young people being especially vulnerable.
The report also noted that the current legislation requires police conducting a field search to apply the same tests for a child as for an adult. The only extra protection that exists for children is the requirement that an independent adult be present. Furthermore, that requirement can be dispensed with if, in the police’s assessment, it is not reasonably practicable to locate a suitable adult.
The report recommended that police should be required to obtain a court order prior to strip-searching a minor and that this should only be done based on child protection concerns, to protect a child from harm. It further recommended that the presence of an independent adult at such a search should be mandatory.
Law Enforcement Conduct Commission enquiry
The New South Wales Law Enforcement Conduct Commission recently held an inquiry into the strip-searching of a 16-year-old girl at Splendour in the Grass festival near Byron Bay. The girl was reportedly strip-searched without a parent or support person present after a false positive was given by a sniffer dog. The girl said the incident had been distressing and upsetting and had caused her to lose her sense of trust in the police.
Community response
While there has been widespread concern about the lack of police accountability in relation to the strip-searching of minors, the police minister, David Elliot, has defended the practice. The minister reportedly said he would want his own children strip-searched if they were suspected of breaking the law.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.
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A report released on 11 October 2019 by the United Nations Special Rapporteur on extreme poverty and human rights has warned of the dangers of the digital welfare state. Digital welfare states are states, like Australia, that allow their social security system to be administered and automated by computer technologies without the involvement of caseworkers or other human decision-makers. Such technologies have many potential benefits but have also been known to make systemic errors that impact large numbers of people.
The report, written by Professor Philip Alston, identifies a number of risks and drawbacks associated with the digital welfare state, warning that we risk “stumbling zombie-like into a digital welfare dystopia.”
Robo-debt
The report notes the Australian government’s ‘Robo-debt’ system as an example of the lack of attention to legality in digital welfare systems. Robo-debt uses automated data-matching between information provided to Centrelink with that provided to the tax office. If there is a discrepancy, it generates a notice asking the welfare recipient to explain the difference. If the issue isn’t cleared up, a debt notice is issued.
The Robo-debt system has been found to have a very high error rate, miscalculating debt and creating debts where none exist. The report labelled this system a ‘fiasco’.
“While the lack of a legal basis is deeply problematic per se, this gap also means that opportunities for legislative debate and for public inputs into shaping the relevant systems is also lacking. This has major potentially negative implications for transparency, design, legitimacy and the likelihood of acceptance,”
Professor Alstron said.
Australia’s robo-debt scheme is currently the subject of a senate inquiry and a class action.
The report also raises numerous other issues that are pertinent to Australia’s digital welfare system.
Electronic debit cards
The use of debit cards instead of cash welfare payments has commenced in a number of countries, including Australia, New Zealand and South Africa. These cards have been identified as causing a number of problems, such as allowing for the surveillance of welfare recipients’ consumer behaviour and the cards being identifiable as welfare-related, leading to feelings of shame and self-consciousness.
The cards also often involve the users being charged card fees and are associated with negative stereotypes about welfare recipients being untrustworthy.
Fraud prevention
A lot of digital welfare systems have been designed with a focus on preventing and detecting fraud. However, the Special Rapporteur’s investigations indicated that the emphasis on this issue was out of proportion to the scale of the problem.  Instead, the risk of fraud threatens to become a pretext for increased surveillance and intrusion.
Communication
In digital welfare states, a lot of interactions that previously occurred face to face or over the phone are now occurring through online applications. This poses problems for those lacking internet access or digital skills. Online applications can also make legal decisions unclear, leading to claimants not understanding their rights.
In particular, the report highlights Australia’s Targeted Compliance Framework, which requires users to report compliance with mandatory activities via a digital dashboard. If there is a failure to meet a mutual obligation, the payment can be automatically suspended and penalties imposed, without the involvement of a human.
This system has been criticised for failing to take into account factors like lack of internet access or digital literacy.
Human rights and digital equality
The report warns against using new technology at the expense of human rights, noting that the technology sector is essentially a human-rights-free zone, with major players working to keep it that way.
Practical issues raised by digital welfare systems that threaten digital equality include:

Limited or no access to the internet
Out of date equipment and unreliable connections
Lack of access to documents or inability to upload them
Fingerprints being unreadable due to lives of manual labour

Conclusion
The report concludes that states using digital welfare systems need to alter their course to avoid a future of unrestricted data matching. widespread surveillance and punitive sanctions. Governments using such systems need to ensure they take into account the concerns of humanity and not only of the well-off.
If you require legal advice or representation in a Centrelink matter or in any other legal matter, please contact Go To Court.
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In recent years, Australia’s laws restricting what journalists can report and what information Commonwealth employees can disclose have got tighter and tighter. Human rights lawyers and activists have often raised the alarm that we are creeping closer to becoming a police state, with liberties such as freedom of the press under threat. But exactly what federal laws restrict the communication of government information? This article will examine some of them.
Criminal Code offences
In the Federal Criminal Code Act 1995, there are two provisions that contain offences relating to the disclosure of information.
Inherently harmful information
The first provision relates to inherently harmful information. Inherently harmful information includes:

security classified information ;
information that that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions;
information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.

Communicating information
Section 122.1 of the Criminal Code makes it an offence to communicate information that is inherently harmful and was obtained by the person whilst a Commonwealth officer or working for a Commonwealth entity. This is punishable by a maximum of seven years imprisonment.
Dealing with information
Under the same provision, a person commits an offence if they deal with information (otherwise than by communicating it) that is harmful and that was obtained by the person whilst a Commonwealth officer or working for a Commonwealth entity. This is punishable by a maximum of seven years imprisonment. This is punishable by a maximum of three years imprisonment.
Removing information
The provision also makes it an offence for a person to remove information from its proper place of custody or to hold the information outside of a proper place of custody if

the information is inherently harmful; and
the information was obtained by the person whilst a Commonwealth officer or while working for a Commonwealth entity. This is punishable by a maximum of three years imprisonment.

Failing to comply with a direction
A person also commits an offence if they are given a lawful direction about the retention, use or disposal of inherently harmful information obtained while working for the Commonwealth and

they fail to comply with the direction; and
the failure to comply with the direction results in a risk to the security of the information.

This is punishable by a maximum of three years imprisonment.
Causing harm to Australia’s interests
Under Section 122.2 of the Criminal Code, a person commits an offence if they communicate information, which causes harm (or is likely to cause harm) to Australia’s interests where the information was obtained by the person whilst a Commonwealth officer or while working for a Commonwealth entity.
ASIO business
Under Section 35P of the ASIO Act 1979, it is an offence for an entrusted person to disclose information about a special intelligence operation. This offence carries a maximum penalty of five years imprisonment. Following a 2016 amendment, the criminal penalties under this provision apply only where the activity, or health or safety is endangered.
An ‘entrusted person’ is a person who works for ASIO or a person who has contracted with ASIO. This includes journalists who are in discussion with ASIO prior to publishing a story.
A ‘special intelligence’ operation may be any operation that assists ASIO to perform a special intelligence function, including gathering and evaluating intelligence related to security or co-operating with other agencies. It may include acts of wrongdoing by ASIO where disclosure is in the public interest.
Immigration and Border Protection
Under Section 42 of the Australian Border Force Act 2015, it is an offence for a person to make a record of, or disclose, Immigration and Border Protection information. This offence carries a maximum penalty of two years imprisonment.
The provision has the potential to curtail the ability of detention centre workers to reveal incidents or practices that occur in detention that may amount to infringements of legislation or human rights norms.
Limited protections
Under the Public Interest Disclosure Act 2013, people who reveal information in the public interest are accorded some protection. However, this protection is limited. Journalists and government employees wanting to report information still risk harsh penalties if the protections are found not to apply and so are likely to be deterred from coming forward.
Australia has passed over 75 national security laws that include similar such repressions, mostly since the terrorist attacks of the 11 September 2001. Calls are now abounding for these laws to be reviewed against human rights principles such as freedom of the press.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.
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‘Palaszczuk go to hell, take your protest laws as well.’ That was the chant heard at last Friday’s Extinction Rebellion blockade of the William Jolly Bridge in Brisbane. The protest laws in question concern the use of dangerous attachment devices by protesters and are contained in the Summary Offences and Other Legislation Amendment Bill 2019. The bill is set to pass the Queensland parliament despite widespread opposition from lawyers, activists, the general community and even from Labor Party members.
What are the proposed changes?
The bill addresses the use of dangerous attachment devices by protesters. Such devices can be used to make it harder for police to remove activists from a location. Many such devices featured in last week’s climate change protests. The bill gives powers extra powers to search persons without a warrant and to seize dangerous attachment devices as well as creating two new criminal offences.
What are attachment devices?
The bill states that an attachment device is a device that reasonably appears to be constructed or modified to enable a person using the device to resist being safely removed from a place or safely separated from a thing. A chain, bike lock, glue, padlock or rope are NOT attachment devices by themselves.
What are dangerous attachment devices?
The bill states that a thing is a dangerous attachment device if it has been constructed or modified to cause injury to a person if interfered with or if it incorporates a dangerous substance or thing.
Dangerous attachment devices include sleeping dragons, dragon’s dens, monopoles and tripods. A sleeping dragon is a device with an anchor point for a person’s hand to be bound to casing to shield the person’s hand from being unlocked. A dragon’s den is a device that incorporates a sleeping dragon and reinforces the casing by adding bulk or weight, for example, a drum filled with concrete.
Monopoles and tripods are devices set up to suspend a person off the ground, which will collapse if someone interferes with the device, causing injury to the person suspended. A tripod was used in a recent one-woman protest to block a Brisbane road.
Searching a person or vehicle
Under the new laws, police will be able to search a person or vehicle if they believe the person has (or the vehicle contains) something that may be a dangerous attachment device that has been or is going to be used to disrupt a lawful activity. The interference may be with the operation of transport infrastructure, stopping a person from entering or leaving a place of business or causing a halt to the operation of plant or equipment.
Seizure and disposal
The new laws empower the police to deactivate or dissemble a dangerous attachment device to the extent that they consider necessary. The police may seize all or part of the device and the device will then be taken to have been forfeited to the state.
Offences
The bill establishes two criminal offences relating to the use of dangerous attachment devices.
Interfere with transport
Under the changes, it will be a criminal offence to use a dangerous attachment device to interfere with the operation of transport infrastructure without a reasonable excuse. This offence is punishable by a maximum penalty of a fine of 50 penalty units or imprisonment for two years.
Interfere with business
It will also be an offence to use a dangerous attachment device to stop a person entering or leaving a place of business or to halt the operation of a plant or equipment. This will be punishable by a maximum penalty of a fine of 20 penalty units or imprisonment for one year. This offence does not apply to the use of a monopole or tripod unless it incorporates a dangerous substance or thing.
Community responses
The proposed laws have been condemned by Australian Lawyers for Human Rights after Queensland Premier Annastacia Palasczcuk announced that the changes would be fast-tracked through parliament with minimal consultation.  ALHR President Kerry Weste said that legislation should be subject to wide consultation, particularly where it has the potential to impact human rights. ‘ALHR is of the view that the bill does not strike an appropriate balance and goes too far in  restricting Queenslanders’ rights under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, as well as their constitutionally implied right to freedom of political communication,’ Weste said, noting that protests have often inspired positive social change.
Last week the Guardian reported that inner-city Brisbane ALP members had passed a unanimous resolution condemning the mass arrest of climate protesters and the proposed crackdown on protesters. The left of the Labor party is reportedly concerned about the anti-protest stance being taken by Palaszczuk, saying that the Labor party was built on activism and that the criminalisation of protests is reminiscent of the Bjelke-Petersen era. Concerns have also been voiced that such laws, if passed, could be used by future conservative governments to suppress the union movement.
Police told the Queensland parliamentary enquiry held last Friday that the devices expose protesters and emergency services workers to injury. Freight train network Aurizon also said that it supported the laws for safety reasons.
More than 30 of the types of devices targeted by the new law were reportedly removed from protesters during last week’s climate actions.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.   
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The ACT Parliament yesterday passed legislation that will make possession of cannabis legal, provided it is a small amount for personal use. The laws will come into effect on 31 January 2020. The change makes the ACT the first Australian jurisdiction to legalise personal use of cannabis, following 11 US states and numerous countries including Spain, Portugal and Peru.
The changes are contained in the Drugs of Dependence (Personal Cannabis Use) Bill 2018, a private member’s bill that was introduced by Labor.
Why the changes?
The ACT government has released a statement to the effect that it does not support or condone the use of drugs. However, it states that the outright prohibition model of drug policy has failed as cannabis use is prevalent in the Australian community. A harm minimisation approach has been effective in other jurisdictions.
The changes follow extensive research indicating that the negative health effects of cannabis are much less serious than those of alcohol and that cannabis is not a particularly harmful substance.
What do the changes mean?
In the ACT, starting in January 2020, possession of cannabis will be legal where a person has up to 50 grams of dried cannabis or up to 150 grams of cannabis that is not dried. It will be legal for a person to possess up to two cannabis plants and for a household to have a maximum of four cannabis plants.
The maximum quantities permissible are the same regardless of whether the person has a medical reason for consuming cannabis.
What do the changes not mean?
The new laws do not establish a legal market for cannabis. The laws mean only that a person who buys cannabis (in the prescribed quantity) and uses it for themselves is not committing an offence. However, the person selling it will still be committing an offence.
The Labor MP who introduced the Bill, Michael Pettersson, has indicated that he thinks the idea of commercialising cannabis in the future has merit. However, at present this is not possible under federal laws.
Cultivating cannabis offence
The existing offence of cultivating cannabis, which is contained in Section 618 of the Criminal Code 2002, will remain unchanged. Under that provision, it is an offence punishable by a fine of 200 penalty units or imprisonment for two years to cultivate more than three cannabis plants.
New cannabis offences
The new legislation introduces the following new offences:
Possession of cannabis
Under the new laws, it will be an offence to possess more than two cannabis plants, more than 50 grams of dried cannabis or more than 150 grams of cannabis that is not dried.
Possession of cannabis will also be an offence if you are below the age of 18.
Cultivating cannabis
Under the new laws, it will be an offence for a person to cultivate cannabis in a place other than where the person lives. It will also be an offence to cultivate cannabis in an area lawfully accessible to the public.
Storage of cannabis
The new laws will create an offence of harvesting cannabis and storing it within reach of children.
Smoking near a child
The new laws will also make it an offence to smoke cannabis in public or so near a child that the child is exposed to smoke or vapour.
Federal laws
Cannabis remains a prohibited substance under federal laws and persons in the ACT may still be charged with offences against those laws. However, prosecutors have indicated they will respect the position of the ACT government on cannabis offences. The changes have been criticised as having the potential to cause confusion among citizens and ACT police due to the inconsistency with federal law.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.
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In August it was revealed that the Queensland government had granted exclusive possession of tracts of land in the Galilee Basin to Indian mining company Adani. The decision had the effect of extinguishing the native title rights of the Wangan and Jagalingo people, who may now be forcibly expelled from their traditional lands.
An Indigenous Land Use Agreement  (ILUA) with Adani had been agreed to by seven of the native title holder groups, with the remaining five opposing it. ILUAs are generally used to facilitate the simultaneous use of land by different groups with different interests. However, now that native title has been extinguished, the objections that some traditional owners have to the coal mine no longer have legal significance.
The move has been controversial, with environmental activists saying the government has placed corporate interests ahead of traditional owners and undermined Indigenous autonomy.
What is native title?
Native title is the legal recognition that some Indigenous people continue to hold rights over their lands and waters. These rights are derived from their traditional laws and customs.
The Federal Court can make a determination of the native title rights of a particular group based on:

Evidence that the group has a ‘traditional connection’ to the area from sovereignty to the present day;
The group observes customs and traditions that give rise to rights and interests;
The traditional rights sought are recognised under Australian law.

A determination of native title can only be made in an area where native title has not been extinguished. Such areas include vacant Crown land, beaches, oceans, rivers, creek and swamps not privately owned, some land subject to agricultural leases, some state forests and national parks.
Case law
In the 1992 decision of Mabo v The Queen, the High Court found that Australia was not terra nullius, or unoccupied land, when it was colonised in 1788.  The case established the indigenous right to prior occupancy.
The 1996 High Court decision of Wik established that native title could co-exist with (and not be automatically extinguished by) government-issued pastoral leases.
Extinguishment of native title
Section 237A of the Native Title Act 1993 states that when native title is extinguished, the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.
Native title is extinguished where:

Freehold land is privately owned
Pastoral or agricultural land is leased giving exclusive possession;
Land subject to residential or commercial leases;
Were governments have built roads, airports, railways, schools and other public works prior to 23 December 1996.

Additionally, the Federal Court may decide that native title no longer exists. This may occur for a number of reasons, including that traditional owners have ceased to observe their traditional practices or no longer exist.
Indigenous Land Use Agreements
Indigenous Land Use Agreements (ILUAs) are voluntary agreements between native title groups and other parties about the use and management of lands. They allow people to negotiate arrangements to suit particular circumstances without having to litigate.
In the Galilee Basin area, some of the traditional owners favoured the use of ILUAs to allow mining to occur on mutually beneficial terms. Others opposed the idea, as they wanted to retain custodianship of the land.
United Nations’ Declaration on the Rights of Indigenous Peoples
In 2007, Australia voted against adopting the United Nations’ Declaration on the Rights of Indigenous Peoples, but in 2009 it accepted the declaration as aspirational. The Declaration states that Indigenous people have the right to self-determination (Article 3) and the right to self-government in matters relating to their internal and local affairs (Article 4) and the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State (Article 5).
Responses to the decision
The government’s decision to extinguish native title over 1,385 hectares of the Galilee Basin has been slammed as inconsistent with Indigenous autonomy. It has also been criticised as severely limiting the UN Declaration’s principle that Indigenous people should have authority over their own affairs. If native title rights are insecure, the human right to culture is not adequately protected.
Traditional Owner and cultural leader Adrian Burragubba said, “We have been made trespassers on our own Country.” Environmental activists have accused the government of siding with a billionaire coal company over Traditional Owners.
If you require legal advice or representation in a property law matter or in any other legal matter, please contact Go To Court Lawyers.
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Prime Minister Scott Morrison last week announced that the government will convene a Joint Parliamentary Committee of both the House and Senate to conduct an enquiry into the family law system. The family law system has already been subject to two extensive reviews in the last two years. The Terms of Reference that have been put forward for the current family law system enquiry review duplicate the terms of reference to a large degree of those previous two enquiries, raising questions as to why yet another review is necessary.
Pauline Hanson has applauded the announcement, saying the enquiry is needed because of false allegations of family violence commonly made by women. She has cited her son’s experience of the system as evidence that it impacts men unfairly.
This enquiry
The Prime Minister said the family law system enquiry would assess whether the system is fit to support parents and children through separations. It will hear from families as to how the family law system and the child support system have impacted them.
The issues to be considered by the enquiry include how the family law system interacts with the family and domestic violence jurisdictions and the child protection systems of the states and territories, the legal costs associated with proceedings and any reforms needed beyond the proposed merger of the Family Court and the Federal Circuit Court.
The inquiry will be led by Kevin Andrews MP.
Previous family law system enquiries
In December 2017 the House of Representatives Standing Committee on Social Policy and Legal Affairs published its report, ‘A better family law system to support and protect those affected by family violence.’ It made 33 recommendations, most of which have not been implemented.
In April 2019, the Australian Law Reform Commission tabled its report ‘Family law for the future – An enquiry into the Family Law System’. That report included 60 recommendations, to which the government has not responded.
The family law system
Under the family law system, courts make short-term and long-term Parenting Orders concerning the care and living arrangements of children. Under the Family Law Act, children have the right to a meaningful relationship with both their parents and the right to be protected from harm, be it physical, emotional or psychological harm. The court decides what level of contact with each parent (and in some case, other people, such as grandparents) is in the best interests of the children after hearing evidence of the parents’ circumstances and past behaviour. Issues such as family violence, drug and alcohol use and unstable housing or employment will all be taken into account. The cultural, religious, social and other needs of the children will also be taken into account.
The family law system is often criticised as being expensive for parties as well as taking a very long time for matters to be finalised. A lot of parents who receive family law orders are unhappy with the outcome and claim they were treated unfairly.
Criticisms of the family law system enquiry
The new family law system enquiry is already being widely criticised for a number of reasons. Firstly, the fact that two similar enquiries have been conducted and their recommendations largely ignored has led some to argue that this review is a waste of time and money. Secondly, Senator Hanson, who is widely believed to be the Prime Minister’s choice for co-chair of the enquiry, is in many people’s minds an inappropriate choice, given she has indicated a conflict of interest arising from her personal experience.
Thirdly, as many people from diverse walks of life have argued, the failings of the family law system are already well known. Former family court judge Peter Rose has said:
‘It doesn’t take an inquiry at huge expense to tell you what the problems are -unacceptable delays due to lack of quality resources.’
Similarly, family violence campaigner Rose Batty has stated, ‘We know the failings. We need to start investing in this system that is …continuing to put families, particularly children, in danger.’
The announcement of the enquiry, and its inclusion of Hanson in a prominent role, has also been slammed as promoting and facilitating the senator’s populist agenda and appealing to men’s rights activists. Domestic violence services also complain that they will have to divert resources away from their front-line services in order to participate in the enquiry, in a sector already notoriously underfunded.
If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.
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Whilst Australia has legislation prohibiting discrimination on the basis of sex, age, race and disability, it does not currently have anti-discrimination laws protecting religious freedom. In recent weeks, liberal MPs have been calling for a Religious Discrimination Act to be passed, following the same model as existing anti-discrimination legislation, which forbids discrimination in employment and other specified contexts.
The call has been met with debate as to whether such a legislative regime is necessary and concern about the potential for such an act to be misused and to become a smokescreen for other forms of discrimination.
History
In 2017, then-Prime Minister Malcolm Turnbull appointed former minister Phillip Ruddock to review Australia’s legal protections for religious freedom. The review was prompted by concerns among conservatives about the impacts of marriage equality. The report that was tabled last year made numerous recommendations in respect of various amendments that should be made to existing anti-discrimination laws. These included restricting or eliminating certain forms of discrimination.
However, the recommendations also advocated preserving the right to discriminate in some circumstances. For example, by limiting the circumstances in which schools can discriminate against students on the basis of sexual orientation or gender identity to situations where the discrimination is founded in precepts of the religion and the school has publicly available policies outlining its position.
Proposed religious discrimination laws
The proposed Religious Discrimination Act makes it unlawful to:

treat a person less favourably because of the person’s religious belief or activity;
unreasonably impose a condition, requirement or practice that disadvantages persons with a religious belief or activity.

The bill extends its protection to the areas of employment, education, good and services, access to premises and sports and clubs. It also sets out various exceptions to the prohibitions on religious discrimination and provides for the establishment of a Freedom of Religion Commissioner at the Australia Human Rights Commission.
Existing protections
Legislation in all states and territories except New South Wales and South Australia already prohibits discrimination on the basis of religious belief or practice. The federal Fair Work Act prohibits such discrimination in the context of employment.
As Australia does not have a bill of rights, there is no general prohibition on religious discrimination, either in the constitution or at the federal level in the absence of specific legislation.
Arguments for the bill
The government has presented the bill as an ‘orthodox’ piece of legislation that will sit alongside existing anti-discrimination acts. Supporters of the bill say it is necessary in order to protect religious people from discrimination on the basis of their religious beliefs or practices. They argue that religious beliefs should attract the same protections from the law as attributes such as race and sex.
Supporters of the bill have also cited ‘the forces of political correctness’ and their potential to marginalise religious views as a reason the bill is necessary. The public ‘disrespect’ shown to Israel Falou following his comments describing homosexuality as a sin has also been raised in support of the bill.
Arguments against the bill
Liberal Senator James Patterson, who has backed the proposed bill, last year tried to introduce legislation that would have allowed discrimination against same-sex couples in the name of religious freedom. The potential for the proposed legislation to become a smokescreen for discrimination against LGBTIQ people has been flagged as a real risk.
The legislation has also been opposed on the ground that it may make it harder for women seeking an abortion to obtain the procedure. Doctors relying on religious grounds for a conscientious objection may have stronger protections and may not be obliged to refer the woman to another practitioner who does not have a conscientious objection. It would therefore fall to the woman to actively seek out a medical practitioner who is willing to perform the procedure.
Religious leaders, such as Anglican priest Father Rod Bower in Gosford, have spoken out against the proposed changes, arguing that religious practices should not be placed on an equal footing with attributes such as race and sex that people have no control over. Bower said that while freedom of religion ought to be protected by law, there should not be an absolute freedom to manifest that religion where this has the potential to result in other forms of discrimination. He further argued that there is no reason to believe that freedom of religion is under threat in Australia.
Melbourne-based employment lawyer Alan McDonald says that the proposed religious discrimination laws will be difficult for employers to navigate and will give people with strong religious beliefs ‘a license to harass those who do not share those beliefs.’
The proposed legislation has also been criticised as having the potential to bring about counterproductive and unintended consequences.
If you require legal advice or representation in relation to a discrimination matter or any other legal matter, please contact Go To Court Lawyers.
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