There is a long history of Australian states and territories criminalising public drunkenness. In various forms, laws have existed making it an offence to be intoxicated in public for the last 200 years. The laws have long been criticised for being unevenly enforced, with a disproportionate number of Aboriginal people being arrested for behaviour that is generally not seen as criminal when engaged in by white people.
The 1991 Royal Commission into Aboriginal Deaths in Custody recommended that the offence of public drunkenness be abolished. Most states and territories have now repealed offences that consist solely of being drunk in a public place. However other associated offences still remain in many states and territories.
In Victoria and Queensland, the offence of public drunkenness still exists. The Inquest that is currently in progress into the 2017 death of Yorta Yorta woman Tanya Day, who was in police custody for public drunkenness, has brought the issue back into the spotlight. The Victorian Premier last week committed to repealing the offence of public drunkenness.
The offence
In Victoria, Section 13 of the Summary Offences Act 1966 makes it an offence to be drunk in a public place. This offence is punishable by a fine of up to $1,289.52.
In Queensland, Section 10 of the Summary Offences Act 2005 makes it an offence to be drunk in a public place and this in punishable by a fine of up to two penalty units. In Queensland this is currently $261.10.
The Tanya Day inquest
In 2017, 55-year-old Tanya Day was arrested for public drunkenness on a train in Castlemaine. She had boarded the train from Echuca to Melbourne drunk, fallen asleep and been unable to locate her ticket when asked by inspectors. Inspectors claimed she behaved in a disorderly manner while being spoken to on the train, however other passengers said she was co-operative.
Ms Day was held in police custody in Castlemaine, where police were required to check on her every 30 minutes. This did not occur. The same day, Ms Day fell and hit her head on a concrete wall. Several hours later, police conducted a check and called an ambulance. A scan showed massive internal bleeding in her brain. She died 17 days later.
The inquest into Ms Day’s death is underway in Melbourne. The Coroner has already stated that she will be making a recommendation that the offence of public drunkenness be abolished in Victoria.
What is wrong with the offence of public drunkenness?
There are many criticisms of the offence of public drunkenness. Aside from the fact that it disproportionately affects Indigenous people, it reflects the common theme of treating public drinking as more problematic that drinking that occurs in private.
People who drink in public, who are often from lower socio-economic groups, are therefore criminalised and scrutinised in a way that those who have the option of drinking at home are not.
Advocates of repealing the offence also say that drunkenness should be treated as a health issue and not a criminal one.
Changes coming in Victoria
Premier Daniel Andrews has announced that the offence of public drunkenness will be abolished in Victoria. Instead, persons found intoxicated in public will be dealt with by a health-based approach that will ‘promote therapeutic and culturally safe pathways to assist alcohol-affected people in public places.’
The Human Rights Law Centre in Melbourne has welcomed the government’s announcement, saying that the discriminatory laws need to be repealed.
Ms Day’s family has reportedly urged the government to act quickly to end the operation of the law. Her daughter has pointed out that laws in other states mean that Aboriginal people still face being disproportionately policed in relation to public drunkenness. She also noted that if the Victorian government had implemented the recommendation of the Royal Commission her mother’s death could have been avoided.
Other intoxication offences
Other criminal laws remain that involve the consumption of alcohol in public places. These laws include having alcohol in an open container in a public place, which is an offence under by-laws in many Victorian localities.
Other jurisdictions, such as the Northern Territory, permit police to take persons into ‘protective custody’ if they are so intoxicated they cannot adequately care for themselves or may cause harm to themselves or to someone else. This means the person is apprehended without arrest and though there is no charge laid, they may be held in police custody for up to eight hours.
Queensland to follow?
The announcement of the repeal of the public drunkenness offence in Victoria will leave Queensland as the only jurisdiction to have retained this law which is often described as outdated.  Community members are now calling on the Queensland government to follow Victoria and decriminalise public drunkenness.
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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The Brisbane Lord Mayor Adrian Schrinner reportedly today approached Premier Annastacia Palaszczuk about changing Queensland’s laws relating to public assemblies such as political protests. The move comes after climate change protests organised by international activist network Extinction Rebellion caused chaos in the city last month. It also follows another announcement last week that police would be given additional powers to search environmental activists.
The laws around protests are governed by the Peaceful Assembly Act 1992.
Environmental protests
During July, Extinction Rebellion (XR) protesters blocked the intersection of Margaret Street and William Street in Brisbane for several hours, resulting in 72 arrests. The action, which has been described as polarising, was met with both praise and condemnation from affected motorists and the broader community.
XR aims to cause major disruption in cities around the world in order to compel governments to set ambitious targets to halt biodiversity loss and reduce carbon emissions. It advocates civil disobedience as a means to this end, saying that lawful methods of achieving social and political change have failed. Similar protests have been held in major cities all over the world.
Critics of the group’s tactics say their roadblocks inconvenience people going about their daily routine and have the potential to delay emergency services, which could lead to deaths.
Public assemblies
As the law currently stands, persons wanting to hold public assemblies are required to give notice of their intention to the Queensland Police. The notice must provide the names and contact details of the person or organisation holding the assembly, the time and place they intend to gather and the purpose of the gathering. If the protest is to include a march, details must be provided of the route that will be taken and the length of time that will be spent at stoppage points.
Refusal to authorise public assembly
If a public assembly notice is supplied at least five business days before the proposed public assembly, the council may apply to a Magistrates Court for an order refusing to authorise the assembly.
Under Section 13 of the Peaceful Assembly Act, the council cannot apply for an order refusing permission for a public assembly to take place unless the proposed assembly is likely to:

Jeopardise the safety of persons;
Cause serious public disorder; or
Interfere with the rights or freedoms of persons.

Before applying for an order, the council must have engaged in a mediation process with the persons proposing the assembly.
What are the proposed changes?
The Mayor reportedly wants to change these laws to prevent ‘extremists’ such as Extinction Rebellion from shutting down the city’s roads and public transport infrastructure. He said such protests were bound to create unnecessary delays for emergency services and that the majority of Brisbane residents did not support them.
The Mayor is also advocating the abandonment of the requirement to conduct mediation prior to obtaining an order refusing an assembly to go ahead, saying that mediation processes were often held up by lengthy wait times. Removing the requirement would allow the council to obtain a court order to prevent public assemblies from going ahead even where mediation has not occurred because of the short time frame for organising it.
New police powers
Last week, it was announced that police would be given new powers to search anyone suspected of carrying ‘locking on’ devices, such as bike locks and lengths of pipe, which are used to make it more difficult and time consuming for police to remove protesters during direct actions. The new laws will make it an offence to possess these devices at a protest.
The Premier claimed protesters in recent actions had ‘booby trapped’ locking on devices with glass fragments and gas containers so that anyone trying to remove them would be injured.  This claim was dismissed as a fabrication by protesters. No protesters in Queensland have ever been charged with an offence involving setting traps or seeking to cause injury to others.
Responses
Queensland’s only Greens MP Michael Berkman has criticised the Premier for cracking down on peaceful protesters and providing no evidence for her claims.  Berkman has also hit out at the Mayor for seeking to restrict the right to peaceful protest and has called for his constituents to protests against the proposed changes.
Opponents of the changes have accused the Premier of trying to return Queensland to Bjelke-Petersen style suppression of protesting and of protecting corporate interests.
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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On 21 August 2019, the Victorian Supreme Court handed down its decision in Cardinal George Pell’s appeal against findings of guilt for child sex offences that occurred in Melbourne in the 1990s. The court dismissed Pell’s appeal by a majority of two to one, with Justice Weinberg dissenting. Pell will continue to serve his sentence of six years imprisonment and will be eligible to apply for parole after he has served three years and eight months.
The Pell verdict
A jury found Pell guilty of two counts of sexual penetration of a child under 16 and four counts of indecent act with a child under 16. The jury heard evidence from 24 witnesses and also attended a view of St Patrick’s Cathedral, where the offences were alleged to have been committed. The jury also heard the police interview conducted with Pell before he was charged. It found him guilty unanimously after deliberating for several days.
Grounds of appeal
Pell’s first ground of appeal was that the findings of guilt were unreasonable and were not open to the jury having regard to the evidence. The second ground of appeal related to the refusal of the judge to allow Pell’s lawyer to show an animated video to the jury. Thirdly, he argued there was an irregularity in trial procedures because his pleas had not been entered in the presence of the jury.
The unreasonableness ground
The offences were alleged to have been committed during 1996 and 1997 against two choir boys at St Patrick’s Cathedral. The first incident was alleged to have occurred in the Priests’ Sacristy of the cathedral and the second incident in the corridor of the cathedral.
By the time the first victim made his allegations, the second victim had died.
Evidence was heard from a number of other witnesses (the opportunity witnesses) about the processes and procedures at the cathedral. This evidence was relevant in assessing whether the defendant had a realistic opportunity to commit the offences.
Pell’s case was that the complainant’s story was a fabrication or a fantasy. He argued that it was implausible and that the allegations were either impossible or so unlikely as to be no realistic possibility.
The court rejected this ground of appeal, finding that it was open to the jury to find Pell guilty beyond a reasonable doubt based on the evidence. It found that there was nothing about the evidence that meant that the jury ‘must have had a doubt.’ The Chief Justice and Justice Maxwell also stated that they did not experience a doubt. They found that the complainant was a compelling witness and a witness of truth. They said:
Throughout his evidence, [the complainant] came across as someone who was telling the truth.  He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.  As might have been expected, there were some things which he could remember and many things which he could not.  And his explanations of why that was so had the ring of truth.
There was generally consistency and support in the picture painted by evidence provided by the opportunity witnesses. Their evidence varied as to the level of detail and recall, but this could be explained by the passage of over twenty years between the events and the trial and the fact that trying to recall events is difficult when the events were repeated week after week for many years.
Pell argued that the acts alleged were physically impossible and relied on statements made by the Prefect of Ceremonies and the Sacristan to the effect that it was not possible to pull the cardinal’s robes to the side. The robes were made available to the jury and to the judges on appeal and were found not to be so heavy or so immovable as had been suggested.
In his dissenting judgment, Justice Weinberg found that there were discrepancies and inadequacies in the complainant’ evidence that gave rise to a reasonable doubt.
The second ground
Pell further argued that the court made an error in refusing to permit the defence to show an animation video to the jury as part of its closing address. The animation in question showed a series of dots and lines moving through the Cathedral complex, each dot or line representing a particular person proceeding out of mass on a Sunday.
A window of text was featured on the screen, with quotes from witnesses that were favourable to Pell’s case fading in and out throughout the animation.  The trial judge held that the video should not be used in the way Pell’s lawyers intended.   The Court of Appeal agreed, finding that it had the potential to mislead or at least confuse the jury.
The third ground
Pell’s third ground of appeal was that his pleas were not taken in the presence of the jury as required by the Criminal Procedure Act. Pell had entered his pleas while the jury was in another room, watching by video link. The Court of Appeal found that ‘in the presence of the jury’ includes presence by video link and dismissed this ground as well.
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Hundreds of people yesterday protested outside the Sydney office of Home Affairs against the continuing use of Temporary Protection Visas for people found to be genuine refugees. Temporary Protection Visas, which have been used since the 1990s, have long been criticised for the uncertainty they bring to refugees who have been through trauma and want to establish a life in a safe country. The government has also been criticised for placing many refugee applicants on Bridging Visas without work rights, forcing them to live in poverty.
The protesters, who were mostly refugees living in Australia on temporary visas, said they were separated from their families with no prospect of reunion and had access to limited social security benefits and work rights.
What are Temporary Protection Visas?
Temporary Protection Visas (TPVs) were introduced in 1999 by the Howard government. They are issued to those who are determined to be refugees after making an unauthorised arrival, often after release from immigration detention.
TPVs are valid for a period of three years, after which the holder must reapply and their situation be reassessed. If the situation in their country has changed and they are no longer at risk of persecution, they may be refused another TPV.
TPVs were abolished by the Rudd government in 2008 but reintroduced by the Abbot government in 2013.
Persons on TPVs do not have the right to family reunion and may not re-enter Australia if they leave. They have the right to work and receive Medicare and have access to limited Centrelink benefits as well as torture and trauma counselling.
A person on the TPV may not apply for permanent protection.
What are Bridging Visas?
Bridging Visas (BVs) are visas that are held while waiting for a visa application to be processed or while waiting for a court to decide an appeal against a decision about a visa. There are six classes of Bridging Visas, with different functions and entitlements attaching to them.
Most refugees on BVs are not entitled to work, receive Centrelink benefits or travel out of Australia.
Why do we have short term refugee visas?
The Australian government says that TPVs are one of the three pillars of its border protection policy (the others being boat turnbacks and offshore processing). They are designed to offer short-term protection to people with genuine refugee claims while leaving the government with the option of returning the holder to their country if it becomes safe to do so.
Temporary Protection Visas are part of the campaign of deterrence that successive Australian governments have been pursuing since the 1990s, based on the idea that offering favourable conditions to refugees will lead to an increase in unauthorised arrivals.
Criticisms of short-term visas
Under Australian government policy, thousands of people who arrived by boat between 2011 and 2014 will never receive a permanent Protection Visa. Refugee lawyers say that Temporary Protection Visas force refugees to live in permanent limbo, unable to reunite with their families or to ever obtain permanent status.
Temporary Protection Visas also place an immense strain on the legal centres that are required to prepare a new application every few years for each visa holder.
The short-term visas also make it extremely difficult for holders to obtain employment or commence study. The uncertainty they bring compounds existing mental health issues and holders fear being returned to persecution every time their visa expires.
Refugee services are urging the government to change its policies.
The protest ended with protesters delivering a letter to the Department of Home Affairs demanding permanency, a pathway to Australian citizenship and the right to family reunion.
If you require legal advice or representation in an immigration law matter or in any other legal matter, please contact Go To Court Lawyers.
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On 9 August 2019, the New South Wales Supreme Court sentenced Mustafa Dirani to imprisonment for 28 years with a non-parole period of 21 years for conspiracy to do acts in preparation for a terrorist act. Dirani had been found guilty after a trial by jury.
The conspiracy in which Durani had been involved ended in the murder of Curtis Cheng outside NSW Police Headquarters on 2 October 2015 by a 15-year-old radicalised supporter of Islamic State.
What is a terrorist act?
Under the Commonwealth Criminal Code, a terrorist act is a threat made or an act done with the intention of:

advancing a political, religious or ideological cause; and
coercing, or influencing by intimidation, the government or the public.

What is conspiracy?
Conspiracy is a crime of duration. It is a continuing offence that lasts as long as it is being performed. A conspiracy remains a single conspiracy no matter who joins and leaves it, provided there are at least two people in the conspiracy at any given time who are acting together to achieve the same objective.
Sentencing for conspiracy
When sentencing a person for conspiracy, the court will consider the agreement between the conspirators. It may also take into account the acts that were carried out and how they bear on the content, duration and reality of the conspiracy and its true nature and the degree of criminality involved.
The offence
Curtis Cheng was a civilian employee of the NSW Police. He was shot by Farhad Mohammad, who was a radicalised supporter of Islamic State.   Mohammad subsequently had a gun fight with NSW constables and was killed.
Dirani had been a party to a conspiracy with Mohammad and others prior to the day of the murder. He had been the close confidante of Mr Alou, who provided Mohammad with the revolver he used to kill Mr Cheng and had also supplied money for the purchase of the firearm.
On the day of the murder, Mr Dirani drove his car in a convoy with Mr Alou to source a revolver. During the journey he provided Mr Alou with counter-surveillance support. He did not withdraw from the conspiracy but continued to praise and support the killing after it had occurred.
The court’s findings
The court found that Mustafa Dirani’s conduct was at the higher end of the scale for a conspiracy offences and that he had played a critical role. There was no evidence that he had ceased to hold extremist views.
Dirani expressed sorrow for the victim’s family. However, the court found that he did not have favourable prospects of rehabilitation and posed a risk of reoffending. It also found that Dirani had not done anything to facilitate the course of justice during his trial. He did not take any additional steps beyond what was required for the conduct of a trial.
Dirani was a radicalised supporter of Islamic State and of violent jihad. He was aware of the plan to commit a terrorist act before he set off on the journey to procure the handgun. The conspiracy resulted in the death of an innocent man.
The conspiracy involved significant planning and continued for many weeks. On the day of the murder, Dirani played a significant role in progressing the conspiracy. Dirani was a supporter of violent jihad throughout the period in question and was actively involved in indoctrinating others, by distributing material and promoting sermons by radical preachers.  However, there was no evidence that he had been involved in indoctrinating Farhad Mohammad.
The offender
Mustafa Dirani was aged 22 at the time of the offence. He had a prior criminal history, consisting of one finding of guilt for affray when he was 17 years old and one count of possession of an ecstasy tablet when he was 20 years old. He was also sentenced for a common assault and a count of concealing a serious offence when he was 20. He received a suspended sentence for those offences.
The court was provided with a psychological report on the offender, which stated he had been bullied and ill-treated at school. However, the court noted this was not corroborated by records from the school he had attended, which indicated he was several times suspended for violence against teachers and other students. There was no evidence the offender suffered any mental illness. The report assessed him as posing a moderate risk of being involved in future terrorist action.
The court noted, in sentencing Mr Dirano, that he would be subject to strict custodial conditions. It took into account the impact of the victim’s death on the Cheng family and the fact that  he was an innocent victim who had been selected at random.
Taking into account the gravity of the offence and all the surrounding circumstances, the court sentenced Dirani to 28 years imprisonment with a non-parole period of 21 years. If granted parole he will serve the balance of his sentence in the community under supervision.
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The Reproductive Health Care Reform Bill 2019 has been introduced to the New South Wales parliament by independent MP Alex Greenwich and will be debated later this month. The bill seeks to decriminalise abortion procedures and to introduce provisions that would regulate terminations as a medical procedure. The bill has widespread support in the Legislative Assembly but has also attracted condemnation from church groups and Coalition MPs, who oppose changing NSW abortion law.
NSW abortion law as it stands
NSW abortion law currently permits a woman to have an abortion if a doctor believes that her  physical or mental health would be put in serious danger by continuing the pregnancy. In determining this, the doctor must take the woman’s social and family situation, finances and health into account.
The NSW Crimes Act currently includes three offences relating to ‘unlawful’ abortion. A woman seeking to procure an ‘unlawful’ abortion can be prosecuted, as can anyone who performs such an abortion or provides the drugs or instruments to be used.
Those provisions were included in the Crimes Act when it was drafted in 1900. Similar provisions existed in all other states and territories in the past, but only New South Wales and South Australia still retain them.
Proposed changes to NSW abortion law
The proposed legislation will remove the three sections relating to abortion from the Crimes Act so that persons can no longer be prosecuted for seeking abortion services or for providing such services.
The bill allows for terminations on request by a pregnant woman up to 22 weeks gestation and later if two doctors agree that “in all the circumstances, the termination should be performed”.
It allows for medical practitioners to conscientiously object to performing abortion but provides that objecting doctors must refer the patient seeking an abortion to an alternative medical practitioner who does not have a conscientious objection.
Support for the bill
Supporters of the bill say that it safeguards women’s rights by providing for widespread access to safe abortions and ensures that doctors will have certainty as to the legality of abortion procedures.
Doctors have long been calling for NSW abortion law to be changed to provide clarity as to when an abortion is legal. Almost all prosecutions for unlawful abortions since the 1970s have concerned the legality of the actions of doctors.
The Australian Medical Association has said the bill will remove the ‘stigma and legal uncertainty’ around abortions.
Supporters of decriminalisation say that reform should have occurred long ago and is needed to make the law consistent with community values. There has been widespread public support for broad access to abortion for many years in NSW. However, parliamentarians have been reluctant to tackle the issue, fearing a backlash among voters.
In introducing the bill, Mr Greenwich said, ‘I’m sorry it has taken so long to achieve this reform.’ He said that women and doctors have had to operate under an out of date law made at a time when women couldn’t vote and were not represented in parliament.
Premier Gladys Berejiklian has voiced her support for the bill.
Opposition to the bill
Church groups and right-wing politicians have spoken out against the bill, with hundreds of anti-abortion protesters gathering outside NSW Parliament on Thursday night as Mr Greenwich introduced it to parliament, holding signs that read “pregnant women need support, not abortion” and “we love life on both sides of the womb”.
Vocal opponents to the NSW abortion law bill include former Nationals leader Barnaby Joyce, who said ‘the hour of birth is an arbitrary point in modern medicine,’ and argued that unborn babies have rights. Liberal MP Nathaniel Smith complained that the bill was being ‘rammed’ through parliament and that abortion should remain in the Crimes Act.
Summary
In all Australian jurisdictions, abortion is legal under certain circumstances when performed by a registered medical practitioner. Abortion has been decriminalised in all states and territories except South Australia and New South Wales.
The Reproductive Health Care Reform Bill 2019 is set to be debated by the NSW parliament in the coming weeks.
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The way strip searches are conducted by the New South Wales police has repeatedly become the subject of controversy in the last few years. Today it has come to light that police in NSW routinely use body-worn cameras to film a strip search, raising concerns about privacy.
The revelation comes in the wake of reports that police are conducting many more strip searches than in the past and may be breaching their duty of care towards suspects in some cases. The legal sector is now calling for clearer laws about what constitutes a strip-search and how strip searches are to be conducted.
What is a strip search?
NSW legislation does not contain a clear definition of a strip search.
Laws regarding how strip searches are to be conducted are contained in the Law Enforcement (Powers and Responsibilities) Act 2002, which bestows various powers on police to conduct personal searches.
The act states that police may search a person on arrest or after arrest if they suspect it is prudent to do so to ascertain:

whether the person is carrying anything dangerous;
whether the person is carrying anything that could be used to escape custody; or
whether the person is carrying anything that was used in connection with an offence (Section 27).

The act permits police to carry out a strip search where they consider it necessary (Section 31) and provides that police must ensure the privacy and dignity of the suspect is preserved as far as possible during the strip search. This means conducting the strip search as quickly as possible and in the least invasive way possible (Section 32).
Police must conduct strip searches in private and out of sight of persons of the opposite sex to the person being searched. Persons below the age of 10 must not be strip-searched.
Filming of strip searches
Redfern Legal Centre this week obtained police operating procedure documents through Freedom of Information. The documents reveal that NSW police are instructed to film strip searches as part of routine strip search procedure.
While the documents state that the officer conducting the strip search should have their camera switched off, they say that the supporting officer should film the search using a body-worn camera. The document also states that officers should ensure the suspect’s privacy is protected by ensuring the footage is not viewed by anyone without a lawful reason to view it, all searches should be filmed.
A spokesperson from Redfern Legal Centre said the practice had ‘enormous privacy considerations’ and that the matter should have been publicly explored before the police were given these powers.
Abuse of strip search powers
Last year, the Law Enforcement Conduct Commission announced it would be conducting an investigation of the use of NSW police powers to conduct strip searches. The investigation comes after the number of strip searches conducted by NSW police rose by fifty per cent between 2015 and 2017, with a corresponding increase in complaints and lawsuits over unlawful searches.
The police’s internal Lessons Learned Unit (LLU) admitted officers had been breaching their powers to conduct strip searches and had been applying those powers inconsistently, particularly at music festivals where searches are carried out with the use of drug detection dogs.
Lawyers and advocates have called for clearer legislative definitions of a strip search and the introduction of objective criteria to limit the discretion afforded to individual police officers.
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 May 2019, the Federal Circuit Court of Australia decided an application to exclude video recordings made in secret from evidence in a parenting matter. The secret recordings had been made by the mother in the matter when the father was attending her home for hand overs of the children. There were also two audio recordings that the mother had secretly taken of conversations between the father and the children, by way of an application installed on the children’s iPods. The recordings were made without the father’s knowledge.
The father’s application
The father applied to have the secret recordings excluded from evidence under Sections 135 and 138 of the Evidence Act. Under Section 135, the court has a general discretion to exclude evidence whose probative value is substantially outweighed by its prejudicial effect, its ability to mislead or confuse, or its potential to waste the court’s time. Under Section 138, evidence must be excluded if it was obtained improperly or illegally unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence improperly obtained.
Were the secret recordings made improperly?
The court found that it was not improper for the mother to make secret recordings of the hand overs as she was motivated by a genuine concern for her safety and in protecting her children from being exposed to conflict. The mother was at the time concerned about the father’s coercive and controlling behaviour and his past episodes of violence. She had made allegations of family violence against him in the proceeding and was also in the process of applying for an intervention order.  Recording the hand overs did not violate any Australian laws.
However, the court found that it was improper for the mother to secretly record private conversations between the father and the children. This violated the children’s right to privacy during conversations with their father. This also breached the Listening and Surveillance Devices Act (now repealed, but in force at the time the recordings were made).
Admission of recordings
The court found that the mother was acting in protection of her lawful interests when she video recorded the hand overs. She was seeking to demonstrate that she had been the victim of family violence in order to obtain an intervention order. The father’s behaviour as captured in the secret recordings was consistent with the mother’s allegations about his conduct. Her actions were justified in the circumstances.
However, the court found differently in respect of the mother’s secret recordings of the conversations between the father and the children. It found that children have the right to private communication with their parents and that the relationship between parent and child could be compromised if this was not upheld. Despite the fact that the audio recordings were of probative value, the court found that they should be excluded from evidence due to the manner in which they were obtained.
The father’s application to exclude the video recordings from evidence was refused but his application to exclude the audio recordings was granted.
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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In March 2019, the Full Court of the Family Court decided an application in the parenting matter of Mahoney v Dieter. The mother in the matter sought the variation of orders made by the Family Court Division of the District Court of New Zealand on the basis that there had been a change of circumstances since they were made.
Background
The mother and the father had been in a relationship without the knowledge of the mother’s husband. The father had regular contact with the child until his relationship with the mother came to an end. The mother then refused his request for contact with the child. The mother and her husband led the child to believe that the husband was her father.
The father started court proceedings and the mother opposed his application to have contact with the child, alleging sexual and physical violence by him. The court found that she had not been abused by the father and that her behaviour amounted to psychological abuse of him. The court heard evidence that the mother held fixed and incorrect beliefs about the father’s conduct towards her, including that the child had been conceived through rape.
The court removed the child from the mother’s care. The child lived with foster carers for a period and then moved into the father’s care.
The original decision
The court ordered that the child was to live with the father. The father was permitted to relocate from New Zealand to Australia with the child. The child was to spend supervised time with the mother in New Zealand, where she lived with her husband. The child was also to have Skype contact with the mother.
The court heard evidence from the mother that she had suffered a brain injury as well as hypothyroidism, leading to parenting difficulties. The court found that if the child was to learn of the mother’s fixed and wrong beliefs about the father, this would be likely to cause her long-term damage.
The court did not have the power to order the mother not to talk to the child about her beliefs. Instead, it needed to find a solution that would protect the child from being exposed to the mother’s repeated and escalating allegations in order to protect the child’s personal development.
The court’s expert gave the opinion that the child’s relationship with the mother was ‘inadequate to meet her needs’ and that her attachment to the mother was insecure.
The mother’s application
The father moved to Australia with the child in 2017.
Seven months later, the mother applied to have the New Zealand orders varied on the basis that there had been a change of circumstances. She filed evidence of a forensic psychologist stating that the mother showed no signs of psychotic processes and was unlikely to have a delusional disorder and that there were no psychiatric reasons to have concerns about her parental capacity.
The Family Court dismissed the mother’s application, finding that the mother had failed to establish a significant change of circumstances that warranted the orders being revisited.
The appeal
The mother appealed to the Full Court of the Family Court, arguing that the original decision had been based on a finding that she suffered from a mental illness. She pointed to parts of the judgment in which the court summarised expert evidence that had been given as to various alternate diagnoses.
However, the court found that the orders were not based on a finding that the mother suffered from a mental illness. Rather, they were based on the finding that she held beliefs that could be harmful to the child. The court found that the new evidence adduced as to the mother’s mental health did not establish a change of circumstances.
The decision of Rice v Asplund established that final parenting orders may be varied only when a party can show that there has been a significant change of circumstances. Final orders are otherwise presumed to reflect what is in the best interests of the child.
As no change of circumstances had been established, the appeal was dismissed.
If you require legal advice in a family law matter or in any other legal matter, please contact Go To Court Lawyers.
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Under legislative changes proposed by the Andrews government, Victorians will be able to change the sex recorded on birth certificates without the need to undergo sexual reassignment surgery. The Labor government on Tuesday introduced a bill to allow individuals to nominate a gender to be listed on their birth certificate. This may be male, female or any other sex descriptor.
The changes, if passed, will be a departure from the current system, which requires a person to have had sexual reassignment surgery before their sex descriptor can be changed on their birth certificate. However, the Registrar of Births, Deaths and Marriages will be able to refuse to record a sex descriptor that is offensive or not a recognisable sex descriptor.
Under the changes, children will be also able to apply to change the sex descriptor on their birth certificate but they will require the support of their parents and a doctor’s statement that doing so is in the child’s best interests.
The bill was introduced to parliament previously and was voted down.
Support for the reform
Supporters of the change say that the new law recognised that some trans, intersex or gender diverse people cannot, or chose not to, have sexual reassignment surgery. The Victorian Attorney-General, Jill Hennessey, said, ‘the current surgery requirement sends a painful message that there is something wrong with being trans, gender diverse or intersex that needs to be ‘fixed’”.
The proposal has been backed by LGBTI groups such as Transgender Victoria, whose chair Brenda Appleton said it would allow members of its community to change ‘the most basic form of documentation to reflect our true identity.’
Trans, intersex and gender nonconforming people often have difficulty using ID in everyday situations when the sex recorded on it does not match their appearance or identity. Such people are often put in a position of having to ‘out’ themselves, not knowing what the response will be.
The changes would allow intersex people to record a sex descriptor that accurately reflects someone who is neither male nor female. Such a person could record their sex as ‘other’ or ‘non-binary.’
Opposition to the reform
The Catholic Church has expressed its disapproval of the reform, saying ‘we stick with the science’ when it comes to gender.
The Liberal opposition has expressed concern that the reforms go too far and represent a shift away from recording a person’s biological sex and towards recording the gender they identify as.
Other critics have called the proposal a ‘propaganda victory’ and complained that the changes promote the idea of gender as fluid.
What do these terms mean?
It is common in a discussion such as this for confusion to arise as to the precise meanings of the terms being used. In particular, the words ‘sex’ and ‘gender’ are often used interchangeably when they in fact have quite distinct meanings. The meanings of some commonly used terms are listed below.

TermMeaning

SexThe reproductive and biological categories of ‘male’ and ‘female’

GenderThe social and cultural differences and identities that attach to sex

TranssexualA person who transitions from one sex to another

TransgenderA person who has a different gender to their biological / anatomical sex

CisA person who has the same gender as their biological / anatomical sex

IntersexA variety of conditions where a person is born with variations in sex characteristics that do not fit the definition of either ‘male’ or ‘female’

Gender non-conformingBehaving or looking in a way that does not conform to what is expected for persons of their gender

A convenient way of thinking about the difference between sex and gender is that sex exists in the body, whereas gender exists in the mind.
The bill is being debated this week and is expected to pass and become law.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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On the 6th June 2019 the NT Children’s Commissioner Colleen Gwynne delivered her independent monitoring reports on the two youth detention centres in the Territory. The reports found numerous shortcomings in the facilities and the procedures followed when dealing with youths who were at risk, separated or in lock-down. They also found the provision of education, programs and work parties to be deficient.
The reports made a total of 26 recommendations for changes to the Don Dale Youth Detention Centre and the Alice Springs Youth Detention Centre. They highlighted the need for proactive monitoring and inspections to replace the current reliance on complaints from detainees as a source of information. The report on the Alice Springs Detention Centre also emphasised the urgent need for refurbishment of the facility.
The reports come in the wake of the Royal Commission into the Protection and Detention of Children in the NT. They have been delivered amidst widespread public pressure for the NT government to implement systemic changes to the detention system to ensure the rights of young people are respected.
Some of the problems that the reports highlight are summarised below.
Separation
The Youth Justice Regulations require any young person who is held in separation to be continuously monitored by closed-circuit TV or physical observation. Records showed that this had not occurred consistently during the monitoring period.
The Regulations also state that a person in youth detention can only be separated for their own protection, the protection of another person or the protection of property after all other measures have failed. Records from the centres did not show other measures being attempted prior to the use of separation.
Furthermore, the decision to separate a young person is supposed to be reviewed every two hours. Records did not indicate this had occurred, in instances where a young person had been held in separation for more than two hours.
Lock-down
Lock-down is when each young person is locked inside their cell. The reports found young people were regularly held in lock-down for up to 14 hours each day. It also found that during one week, the population of the Alice Springs centre was separated into two groups with only one group allowed to attend school at any given time.
At risk status
Young people in detention can be marked ‘at risk’ if the staff consider they are at risk of suicide or self-harm. The reports found shortcomings in the procedures for marking a young person at risk, including inconsistent record keeping with no complete record of a young person at risk kept in a single place.
Education and work parties
The reports found that scheduled school classes in the youth detention centres were often cancelled for operational reasons or because of security concerns. This resulted in many young people missing whole weeks of school, with no attempts being made to offer replacement lessons.
Some young people participated in work parties as an alternative to school, but these work parties offered very little in the way of useful work skills.
Activities and programs
The reports found that there was a lack of planned activities and programs in the youth detention centres. They also indicated that detainees had indicated they would benefit from activities and programs.
Recommendations
The reports made recommendations as to how the above issues should be addressed, including:

That staff undergo training in relation to their obligations regarding separation;
That Territory Families and the Department of Education review strategies for managing tensions between young people in detention to avoid long periods of lock-down;
That Territory Families review staffing arrangements to design a roster that allows young people to spend at least 12 hours a day outside their cells;
That each instance of separation be reviewed to ensure compliance with legislative and regulatory requirements.
That practices surrounding the management of young people placed at risk be reviewed;
That Territory Families and the Department of Education design a strategy to ensure education is available to all detainees;
That Territory Families review the outcomes of work parties to ensure young people are obtaining vocational benefits;
That Territory Families implement recreational activities and keep records of programs delivered and detainees who participated in them;

Community response
The tabling of the reports has caused renewed concern that many of the recommendations made by the Royal Commission, which reported in November 2017, have still not been implemented. NT lawyers and advocates have been urging Territorians to lobby their local members and demand answers for why the NT youth justice system has still not been adequately reformed.
The Law Council of Australia president has questioned whether the NT government has the courage to implement the reforms.
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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While police and judicial officers are responsible for prosecuting and sentencing individuals for criminal offences, sometimes people in positions of authority are themselves charged with perverting the course of justice. This commonly arises in circumstances that amount to an abuse of power. A recent case from the NSW Court of Criminal Appeal dealt with a police officer who sought to use her position to avoid a random breath test. Similarly, in 2006, a Federal Court judge sought to avoid responsibility for a speeding fine. Both resulted in the offender being charged with the far more serious offence of perverting the course of justice.
Johnson v R
In this 2019 case, a Sergeant had been out at a function where alcohol was consumed. Whilst driving home, she was signaled to pull over for a random breath test. As luck would have it, she was pulled over by police from the same police station where she worked. Her colleague greeted her when she pulled up and gave her an Alcolizer Breath Unit. Instead of counting to ten as directed, she drove forward and pulled into a second lane which was being administered by a Probationary Constable (an entry-level police officer) also from the same police station.
The Probationary Constable walked towards the officer and told her she had been stopped for a random breath test. But Sergeant Johnson interrupted him and said, “you’re not going to breath test me are you?” When the Probationary Constable said that he was going to, she said “No, that would be a conflict of interest. Imagine if I blew over which I won’t because I’m not but imagine if I did, the awkward situation that would put you in. Do you understand what I’m talking about?” The Probationary Constable was confused and believed he might have been in the wrong. Sergeant Johnston drove off without being breath tested.
Later that night, the Sergeant sent text messages to another colleague, stating that her two colleagues wanted to breath test her. She also wrote: “I declined and gave the [probationary constable] a lesson on RBT and on the job etiquette.”
The Sergeant was charged with Perverting the Course of Justice, a serious offence which, pursuant to section 193 of the Crimes Act NSW 1900, carries a maximum penalty of 14 years imprisonment. The Sergeant pleaded not guilty but was convicted by a jury. She received a sentence of 16 months of imprisonment. She appealed against the verdict.
The arguments on appeal
There were two grounds to Johnson’s appeal. The first argument was a legal one, arguing that a tendency to pervert the course of justice was not an element of the offence. This argument was rejected. The second argument was that the verdict of the jury was unreasonable. However, the court found that Johnson’s conversations with the probationary constable “are susceptible of no interpretation, other than the assertion of authority of a senior officer over a very junior officer in order to intimidate him in failing to do what was his duty.”
Sergeant Johnsons’ text message to her colleague was equally criticised, and the court found her text message could only mean that she intended to tell the Probationary Constable to treat members of the police force, including herself, differently from other drivers so that they would escape random breath testing.
While it is unknown what the result of a breath test would have been, penalties for drink driving are much less serious than those for attempting to pervert the course of justice. The Criminal Court of Appeal rejected both arguments advance don appeal and the Sargent was ordered to serve the sentence of 16 months. She was eligible for parole after one year.
R v Einfield
In this 2009 case, a former Judge of the Federal Court of Australia, Marcus Einfield was sentenced to a non-parole period of two years for perverting the course of justice. The Judge had been fined $75 for speeding and desperate not to incur any more demerit points,  had contested the fine.
Mr Einfield falsely claimed that another person had been driving his car when the fine was incurred. However, the person he nominated as the driver, an American woman named Teresa Brennan, turned out to have passed away several years earlier. When asked for comment Mr Einfield said that the person driving his car was a totally different Teresa Brennan.
The judge was charged and pleaded guilty to perverting the course of justice and perjury and was sentenced to three years imprisonment, with a non-parole period of two years.
The charge of perverting the course of justice is serious, although it does not always result in a full-time prison sentence. If you are facing a charge of perverting the course of justice, it is best to get legal advice as soon as possible so that you can get the best possible outcome.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.
By Elizabeth Wye, Associate
 
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On 13 March 2019 the High Court handed down its decision in a native title compensation matter where it considered the entitlements of the Ngaliwurru and Nungali peoples to compensation for the extinguishment of their native title rights and interests. The decision marks the first time the High Court has considered a native title compensation matter and will have significant implications for future such claims.
The Northern Territory government was responsible for 53 acts that impaired or extinguished the claimants’ native title rights and interests, giving rise to an entitlement to compensation under Section 51 of the Native Title Act. The Claim Group were native title holders in relation to an area of 1.26 square kilometres in the remote Northern Territory community of Timber Creek. The area was first explored by non-Aboriginal people in the mid-nineteenth century. During the 1980s and 90s, the NT government carried out grants of tenure and construction of public works, which impaired or extinguished native title rights.
The decision at first instance
The Federal Court of Australia found the claimants were entitled to an award for economic loss at 80% the freehold value of the land, with simple interest, and compensation for cultural loss of 1.3 million. On appeal, the Full Court reduced the assessment of compensation for economic loss from 80% to 65% the freehold value of the land. It affirmed the rest of the trial judge’s decision.
The Claim Group appealed to the High Court, arguing that it should be awarded compensation for economic loss equating to the freehold value of the land without reduction. The NT and Commonwealth cross-appealed, arguing that the Claim Group’s economic loss was no greater than 50% of the freehold value of the land and that the award granted by the Full Court for cultural loss was manifestly excessive.
The High Court decision
The High Court allowed the appeals by the NT and the Commonwealth. It dismissed the Claim Group’s appeal.
Economic loss
A majority of the High Court bench found that the economic value of the Claim Group’s rights and interests must be determined via a percentage reduction from full exclusive native title to non-exclusive native title rights and applying that percentage reduction to the freehold value of the land. The Court found that the Claim Group’s non-exclusive native title rights were no more than 50%. It rejected the argument that the claimants were entitled to compound interest and awarded simple interest.
Cultural loss
The High Court upheld the Full Court’s award of $1.3 million for cultural loss.
The Court held that the assessment of cultural loss required an assessment of the spiritual relationship the group has with country and the extent of the spiritual hurt inflicted by the compensable acts. The court noted that spiritual loss
‘is something over and above and separate from “enjoyment” in the sense of the ability to engage in activity or use. Spiritual connection identifies and refers to a defining element in a view of life and living. It is not to be equated with loss of enjoyment of life or other notions and expressions found in the law relating to compensation for personal injury. Those expressions do not go near to capturing the breadth and depth of what is spiritual connection with land.’
The court heard evidence of developments being commenced without the permission of traditional owners, destruction of Dreaming used in the initiation of young men and obstruction of access to hunting grounds and areas used to gather bush tucker. It held that the amount to be awarded for cultural loss varies depending on the identity of the native title holders, their connection with the land or waters and the effect of compensable acts on that connection.
The Court found the award for cultural loss was not manifestly excessive.
Implications of the decision
The judgment delivered in this case is the first assessment by the High Court of a native title compensation case. The appeal hearing last year was the first time the High Court has sat in the Northern Territory.
The large amount of compensation awarded in this case is expected to have strong implications for native title claims in respect of the 2.8 million square kilometres of native title land holdings across Australia. The judgment has provided some clarity on how courts might quantify the compensation owed to native title holders for activities that impact their native title.
The decision has been hailed as the most significant native title decision since Mabo because of its vindication of cultural loss as lasting and attracting significant monetary compensation.
If you require legal advice or representation in any legal matter please contact Go To Court Lawyers.  
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The Minister for Home Affairs Peter Dutton has come under fire after it has come to light that 27-year-old Neil Prakash, who was stripped of his Australian citizenship last month, does not, in fact, have Fijian citizenship. Contrary to the Minister’s assertion that Prakash is a dual national, the Fijian government has today denied that … Continue reading Neil Prakash Citizenship Furore →

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A Queensland Civil and Administrative Tribunal (QCAT) decision late last year has called into question the state’s laws prohibiting firearm silencers. The decision considered the Queensland Police’s refusal to grant a farmer’s request to possess a silencer in order to more safely use his firearms to control invasive species on his property. The health benefits … Continue reading Firearm Silencers and the Law (Qld) →

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On 16 January 2019, the NT Coroner handed down his findings in the inquest into the death of Australian Defence Force soldier Jason Roger Challis while taking part in a live firing exercise near Darwin. The 25-year-old died after being shot in the head by his fellow soldiers after taking up an incorrect position behind … Continue reading NT Coroner Finds Challis Death Was Preventable →

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On 26 January, Australia will celebrate Australia Day. The date on which Australia Day is celebrated has been the subject of increasing controversy, with many people feeling that the chosen date is offensive to Aboriginal people and divides, rather than unifies, the community. 26 January has been a national public holiday since 1994. What happened … Continue reading Australia Day: Should We Change the Date? →

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On 3 December 2018 Dr Kerryn Phelps MP introduced the Migration Amendment ( Urgent Medical Treatment ) Bill to parliament. The legislation, if passed, will require the temporary transfer of asylum seekers on Manus Island and Nauru to Australia if they are assessed by two or more doctors as needing medical treatment. The legislation will … Continue reading Urgent Medical Treatment for Asylum Seekers →

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The Victorian Premier has announced the state will be passing legislation to outlaw the controversial practice of gay conversion therapy. The Health Complaints Commissioner, which commenced an inquiry into the practice last year, found overwhelming evidence that the therapy does long-term damage to people who receive it. The inquiry into gay conversion therapy On 15 … Continue reading Gay Conversion Therapy to be Banned in Victoria →

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On 14 February 2019, the Industrial Chemical Charges Bill 2017 passed the Senate. The bill will limit the circumstances in which cosmetics that have been tested on animals can be placed on the Australian market. Australia has been slow to legislate against the use of cosmetic animal testing. The UK passed legislation in 1998 and … Continue reading Cosmetic Animal Testing Rejected →

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