This is the fourth blog in our Human Rights Act series, looking at the case of DPP v Kaba[1] regarding police powers and exclusion of evidence.
Courts have a discretion to exclude evidence that is unlawfully or improperly obtained.[2] While a breach of the Charter may not necessarily lead to the exclusion of evidence obtained as a consequence of that breach, it will supply the element of unlawfulness that enlivens judges’ discretion to exclude evidence.[3]
In DPP v Kaba, the Supreme Court held that police had acted incompatibly with the human rights of freedom of movement and privacy when they coercively questioned a person during a vehicle stop. These rights as expressed in the Victorian Charter[4] are essentially the same as their counterparts in the Queensland Human Rights Act 2019[5] (HRA).
Mr Kaba was a passenger in a car that was subject to a random stop and licence and registration check by uniformed police officers in 2012. Mr Kaba walked away from the car and the police who, without suspecting him of any wrongdoing, repeatedly pressed him for his name and address. Mr Kaba refused these requests using offensive language and protested about racial harassment. He was then arrested for using offensive language and failing to state his name and address.[6]
The Magistrate found that the police had no power under the relevant legislation[7] to carry out the random stop and licence and registration check, and had breached Mr Kaba’s rights by subjecting him to coercive questioning for his name and address. Consequently, the Magistrate exercise his discretion not to admit evidence on the grounds that it was the result of unlawful and improper police conduct.
On appeal, Bell J found that the Magistrate was correct in finding that there had been a breach of Mr Kaba’s rights to movement and privacy.[8] While there had been no physical interference with Mr Kaba and the interference itself was for a short duration, it was not simply a ‘brief and innocuous request for [his] name and address’.[9] Bell J stated that Mr Kaba had not been suspected of wrongdoing and the police ‘could easily have let Mr Kaba go on his way and they should have done so.[10] Whether he would give them his name and details was his private business but they pressed him well over the line of permissible questioning’.[11] Bell J stated that the relevant test in judging the limits of police interference is whether objectively it can be said that individuals are made to feel that they cannot chose to cease cooperating or leave in circumstances of police interaction.[12]
However, Bell J held that the police have the power of random stop and check under the relevant legislation.[13] Because the Magistrate’s decision not to admit the evidence was based on both findings, the decision was quashed and the matter was returned to the Magistrates Court.[14]
This decision clarifies that where police breach their obligation to act compatibly with and give proper consideration to human rights (under s 38(1) of the Victorian Charter or similar provisions in Queensland’s Act), courts will consider whether to exclude evidence on this basis. Further, it confirms that police conduct breaching Charter rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[15] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[16]
[1] [2014] VSC 52.
[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.
[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.
[4] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12, 13(a) (‘Victorian Charter’).
[5] Human Rights Act 2019 (Qld) ss 19, 25 (‘HRA’).
[6] DPP v Kaba [2014] VSC 52, [1]-[3]; see also ‘DPP v Kaba (Supreme Court) – December 2014’, Victorian Equal Opportunity & Human Rights Commission (Web Page) < https://www.humanrightscommission.vic.gov.au/index.php/human-rights/item/1098-dpp-v-kaba-supreme-court-december-2014>.
[7] Road Safety Act 1986 (Vic) s 59(1).
[8] DPP v Kaba [2014] VSC 52, [469]-[470].
[9] Ibid [478].
[10] Ibid [478].
[11] Ibid.
[12] Ibid [459].
[13] Ibid [458].
[14] Ibid [486]-[487].
[15] Ibid [333].
[16] Ibid [348], [479].
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Case example: Bail – Gray v DPP [2008] VSC 4
This is the third blog in our Human Rights Act series, looking at the decision of the Victorian Supreme Court in Gray v DPP regarding bail.
The Queensland Human Rights Act 2019 (HRA) and human rights legislation in other jurisdictions do not expressly contain a right to bail. Rather, the issue of bail is raised through the provisions dealing with the right to liberty, as contained in s 29 HRA (equivalent to s 21 of the Victorian Charter).

Section
Right

s 29(1)
Every person has the right to liberty and security

s 29(2)
A person must not be subjected to arbitrary arrest or detention

s 29(3)
A person may only be deprived of their liberty in accordance with legal procedures

s 29(4)
A person who is arrested or detained must be informed at the time of the arrest/detention of the reason for arrest/detention, and promptly informed of any proceedings to be brought against them

s 29(5)
A person who is arrested or detained on a criminal charge must be promptly brought before a court and/or to trial without reasonable delay

s 29(6)
A person may not be automatically detained in custody when awaiting trial, but their release may be subject to guarantees to appear for trial or other stages of the judicial proceeding

s 29(7)
If a person has been deprived of their liberty by arrest/detention they may apply to the court regarding the lawfulness of their arrest/detention, and the court must make a decision without delay and order the release of the person if detention was unlawful

s 29(8)
A person must not be imprisoned only because they cannot perform a contractual obligation

 
Case law already indicates that time that a person will spend in custody awaiting the determination of a matter is an important consideration.[1] Where time in custody on remand will likely exceed any sentence of imprisonment imposed after conviction, time may be regarded as outweighing other relevant factors.[2] Human rights legislation is likely to take this argument further.
In Gray v DPP,[3] Kelly Gray was charged with numerous indictable offences, including aggravated burglary arising from assault. He was refused bail on the grounds that a person charged with aggravated burglary is to be remanded in custody unless the person can satisfy the court that detention is not justified.[4] On application to the Supreme Court that his continued detention was not justified, the argument was made that the trial was not likely to commence before 11-12 months after he was initially remanded in custody. Given the relative minor injuries to the victims, the applicant’s prior convictions and the seriousness of the offence, there was a significant risk that Gray would serve more time on remand than under any sentence.[5]
While the Victorian Charter was not explicitly mentioned by either party, Bongiorno J considered that sections 21(5)(c) (the equivalent of s 29(5) HRA – see above) and 25(2)(c) (the equivalent of s 32(2)(c) HRA) to be highly relevant.[6] His Honour found that those sections guaranteed the right to a timely trial, and the inability to provide this was relevant to whether bail should be granted.[7] His Honour stated that:[8]
The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard… is to release him on bail – at least the only remedy short of a permanent stay of proceeding.
Given the similarities between the Victorian Charter and HRA provisions in this regard, it is likely that the same right to a timely trial may be implied in Queensland.
[1] Williamson v DPP [2001] 1 Qd R 99 at 104 per Thomas JA.
[2] Lacey v DPP [2007] QCA 413 at [13].
[3] [2008] VSC 4. See also Human Rights Law Centre, ‘Relevance of Victorian Charter of Rights to Delay in Prosecution and Grant of Bail’, Human Rights Case Summaries (Casenote, 24 January 2008) .
[4] Bail Act 1977 (Vic) s 4(4)(c); Gray v DPP (n 3) [6].
[5] Gray v DPP (n 3) [7]-[8].
[6] Ibid [10]-[11].
[7] Ibid [12].
[8] Ibid [12].
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The Police Discipline Reforms which have just passed the Queensland Parliament deal with justified Police Union concerns about unacceptable delays in finalising the investigation of complaints against police but does nothing to address public dissatisfaction with the fact that most complaints against police in Queensland are still investigated by the police themselves.
In introducing the Police Discipline Reform Bill in early 2019 Police Minister Mark Ryan said that there is a lack of police officer and public confidence in the current discipline system.
The Police Service Discipline Reform Bill was described at the time of the introduction of the Bill into Queensland Parliament as the first major reform of Queensland police discipline since 1990. The 1990 changes reflected recommendations made by the Fitzgerald Report which reported in 1989 as to changes that were needed with police discipline.
The Discipline Reform Bill particularly addressed legitimate complaints that the Police Union have had for some time as to the unacceptable delays in complaints against police being finalised and the unnecessary negative consequences suffered by police as a result of those long delays.
The basic Queensland model of investigating complaints against police however remains flawed.
The Police Reform Bill deals only with the lack of officer confidence but does nothing to address the lack of public confidence in the Queensland Police discipline system. The Fitzgerald Enquiry recommended the implementation of a (then) new Police discipline and complaints model and the Criminal Justice Commission in 1990 established a completely new system of investigating complaints against police where most complaints were investigated by the then Criminal Justice Commission which was the earliest name of what is now called the Crime and Corruption Commission.
It was essentially the Fitzgerald model that most complaints against police should be investigated by a separate agency and that was put into effect by the establishment of the Criminal Justice Commission. However, over time, the Criminal Justice Commission which was later known as the Crime and Misconduct Commission and now the Crime and Corruption Commission has morphed into a super police force using permanent standing Royal Commission powers to investigate organised crime.
While the Crime and Corruption Commission can assume responsibility for and take over an investigation into police misconduct, from what is available in the Crime and Corruption Commission annual reports, there is very little evidence that that happens very often.
An example of the conflicted role of the Crime and Corruption Commission in respect of its organised crime fighting arm and its supervision of police misconduct role is contained in the most recent report of the Crime and Corruption Commission.
The most recent 2018 – 2019 Crime and Corruption Commission Annual Report focuses heavily on the Crime and Corruption Commission’s role in investigating crime and corruption but devotes only a very small part of its report to excessive use of force by the police which was a topic addressed with greater prominence in the last two annual reports.
Indeed, disappointingly, the most recent Crime and Corruption Commission annual report states:-
“As we have noticed a decrease in allegations, excessive use of force will no longer be a primary area of focus in 2019 – 2020.”
Therefore, while the legitimate complaints of the Police Union about unfair and excessive delays experienced by police in having complaints against them finalised has been addressed in the Discipline Reform Bill the public concerns that most complaints against police are still investigated by police themselves with limited oversight by the Crime and Corruption Commission remains an ongoing problem.
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STATUTORY INTERPRETATION AND THE HUMAN RIGHTS ACT 2019 (QLD)
The purpose of this blog series is not to argue the merits or otherwise of human rights legislation. That debate is over. Queensland has enacted the Human Rights Act 2019 (Qld) (‘HRA’). All participants in the justice system need to understand the impact that this may have on the administration of justice in Queensland, and their associated rights.
This first post will consider the HRA’s impact on statutory interpretation. Upcoming posts will consider:

Right to a fair hearing under the HRA
Case example: Unreasonable delay – R v Mills [2011] ACTSC 109
Case example: Bail – Gray v DPP [2008] VSC 4
Case example: Police powers and exclusion of evidence – DPP v Kaba [2014] VSC 52
Case example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377

Queensland’s HRA draws on the pre-existing human rights legislation from Victoria[1] and the Australian Capital Territory.[2] The case law and academic analysis from these jurisdictions provide the best insight into how the HRA will operate in Queensland. Also, the largely analogous legislation and jurisprudence from New Zealand[3] is a useful reference for Queensland.
Rule of statutory interpretation
In the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), s 32(1) outlines statutory interpretation in a manner largely similar to s 48 of the HRA. Both can be viewed as reflecting the principle of legality, but with a ‘wider field of application’.[4]
Both legislative instruments state that all statutory provisions, so far as possible and remaining consistent with their purpose, must be read in a way that is compatible with human rights.[5] However, the Queensland counterpart includes an extra provision stating that where a statutory provision cannot be interpreted in this manner, it must be interpreted ‘in a way that is most compatible with human rights’. Consequently, as the HRA comes into effect in 2020, there may be some differences in statutory interpretation between the Victorian Charter and the HRA.
For all other aspects of statutory interpretation, the Victorian Bench Book[6] is a useful guide to interpret specific statutory provisions or where an interpretation of a provision is an issue in any hearing. The Victorian Bench Book provides for the following steps in relation to the operation of s 31(1) of the Victorian Charter:-[7]

Determine the provision’s potential meaning/s using ordinary grammatical meanings of the words in the provision (insofar as it does not contradict the purpose of the enactment).[8]
Where the provision has a single clear and unambiguous meaning consistent with the purpose of the enactment, give the provision that meaning regardless of whether it limits Charter/HRA rights.
If more than one potential meaning is evident, determine if the potential meanings limit one or more Charter/HRA rights:

If only one potential meaning places no limits on any Charter/HRA rights, than that meaning should be given to the provision;
If more than one potential meaning places no limits on any Charter/HRA rights, choose the meaning that better enhances or protects the Charter/HRA;
If all potential meanings limit one or more Charter/HRA rights, the meaning that least limits the rights should be given.

Momcilovic v R (2011) 245 CLR 1
Momcilovic is the leading High Court decision on the operation of s 32(1) of the Victorian Charter,[9] holding that a provision’s meaning must be discerned according to ordinary techniques of construction, and that s 32(1) does not allow courts to modify the meaning of a provision beyond the limits of these techniques.[10]  French CJ stated that s 32(1) requires:[11]
statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms” but with a “wider field of application.
This approach has since been adopted in various cases.[12] Further, the High Court ruled that the power for the Supreme Court to make a declaration of inconsistent interpretation pursuant to s 36 of the Charter is a valid power.
Other HRA provisions impacting statutory interpretation
Supreme Court referral
Other courts and tribunals are able to refer questions relating to the application of the HRA or the interpretation of a statutory provision in accordance with the HRA to the Supreme Court.[13] After considering the question, the Supreme Court may make a declaration of incompatibility to the effect that the statutory provision cannot be interpreted in a way compatible with human rights.[14] This will then be referred to the relevant Minister for consideration and tabling in Parliament.[15] However, this declaration does not affect the validity of the statutory provision.[16]
Human rights may be limited
Section 13(1) HRA states that ‘A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. Section 13(2) HRA then details various factors that will assist in deciding whether a limit is reasonable and justifiable, including:[17]

The nature of the right;[18]
The nature and consistency of the purpose of limitation;[19]
Whether there are less restrictive means of achieving the same purpose;[20] and
Balancing the importance of the purpose with the preservation of the human right.[21]

While the court in Momcilovic discussed the interaction between ss 32(1) and 7(2) of the Victorian Charter (equivalent to ss 48 and 13 HRA respectively), the judges differed in their opinion. There is therefore no binding authority on the role of s 7(2) in interpretation, and it remains a live issue.
International, foreign and local jurisprudence
Section 48(3) HRA is the same as its Victorian Charter counterpart (at s 32(2)). While the courts may consider international, domestic and foreign jurisprudence, they are not required to do so. This is not a novel exercise of judicial power, as courts are already permitted to have regard to international law and relevant domestic, foreign and international jurisprudence when interpreting statute.[22]
This is the first blog post in a series on the Queensland Human Rights Act, which will come into force on 1 January 2020. Keep posted!
[1] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).
[2] Human Rights Act 2004 (ACT) (‘HRAACT’).
[3] New Zealand Bill of Rights Act 1990 (‘NZBR’).
[4] Momcilovic v The Queen (2011) 245 CLR 1, [54] per French CJ.
[5] Victorian Charter (n 1) s 32(1); Human Rights Act 2019 (Qld) s 48(1) (‘HRA’) (emphasis added).
[6] Charter of Human Rights Bench Book (Vic).
[7] See 2.1 of the Charter of Human Rights Bench Book (Vic).
[8] Momcilovic v The Queen (2011) 245 CLR 1; WK v R (2011) 33 VR 516; Slaveski v Smith (2012) 34 VR 206; Nigro v Secretary to the Department of Justice (2013) 41 VR 359.
[9] to s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  For a detailed discussion of how key provisions of the Victorian Charter were construed, see: Stephen Tully, ‘Momcilovic v The Queen: Case note’ (2012) 19 Australian International Law Journal 280.
[10] Momcilovic v The Queen (2011) 245 CLR 1 at [38]-[40], [50]-[51], [61]-[62] (French CJ); [146], [148]-[160] (Gummow J); [280] (Hayne J); [546], [565], [574] (Creenan and Kiefel JJ); [684]-[685] (Bell J).
[11] Momcilovic v The Queen (2011) 245 CLR 1 at [51].
[12] Slaveski v Smith (2012) 34 VR 206, [23]; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].
[13] HRA (n 5) s 49.
[14] HRA s 53.
[15] HRA s 56(1).
[16] HRA s 48(4).
[17] NB this is a shortened version of the full section.
[18] HRA s 13(2)(a).
[19] HRA s 13(2)(b).
[20] HRA s 13(2)(d).
[21] HRA s 13(2)(g).
[22] Momcilovic v The Queen (2011) 245 CLR 1, [18] (French CJ)
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The prosecution of Witness K and Bernard Collaery has sparked national debate on issues relating to national security, government accountability, freedom of speech, the rule of law and open access to justice.
With public discourse surrounding the prosecutions intensifying, this post serves to summarise and highlight key features of the background of the case ahead of the public forum to be held at Brisbane City Hall on 29 October 2019.
Background
In 2004, Australia and Timor-Leste had commenced treaty negotiations in relation to oil and gas deposits in the Timor Sea.  It was during these negotiations that Australia’s Secret Intelligence Service (ASIS) bugged the walls of Timor-Leste’s cabinet offices under the guise of a foreign aid program. This action gave Australia’s negotiators an unfair advantage in relation to the overall negotiations of the treaty.
Witness K is a former ASIS operative who had firsthand knowledge of the spying operation on Timor-Leste’s treaty negotiations.  He later became aware that high Australian officials involved in the spying were lobbying for an Australian oil company with interest in the area. He complained through proper channels about the illegality of the bugging and obtained permission to speak to his ASIS-approved lawyer, Bernard Collaery.
After learning of the espionage, Timor-Leste initiated international arbitration proceedings against Australia, alleging that the bugging had rendered the treaty void as the negotiation was not made in good faith.  Collaery, representing Timor-Leste, was intending to call Witness K as a confidential witness in the proceedings.
In December 2013, the homes and office of both Witness K and Collaery were raided by ASIO and Australian Federal Police. Documents and data were seized, including Collaery’s legal advice to the Timor Leste Government relating to its strategy for arbitration, and Witness K’s passport was cancelled preventing him from testifying at The Hague.
Four and a half years later, the Commonwealth filed criminal charges against Witness K and Bernard Collaery.
The prosecutions
The charges against Witness K and Collaery are pursuant to Article 39 of the Intelligence Services Act which criminalises the unauthorised disclosure of certain information about ASIS.
Witness K announced in August of this year that he will plead guilty to the charge, with Collaery facing trial separately.
Collaery’s trial will be conducted in partial secrecy under the provisions of the National Security Information Act 2004 (NSI Act). The principle that judicial proceedings are open to the public is well established, however the NSI Act is designed to prevent prejudicing national security.  It is unclear just how much of Collaery’s trial will be kept secret from the public, and from Collaery himself.
This case touches on and challenges numerous long-standing principles grounding Australia’s legal system.  The public forum to be held on 29 October 2019 will involve a discussion of the prosecution of Witness K and Bernard Collaery through the lens of highly qualified speakers.
Robertson O’Gorman is hosting East Timor Prosecutions Public Forum: The secret prosecution of Witness K and Bernard Collaery for national security offences at Brisbane City Hall on 29 October 2019. Spaces are limited. Tickets are available here.
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In the Sydney Morning Herald of 2 September 2019 Justice Chris Maxwell, President of the Victorian Court of Appeal said there was little proof that forensic techniques including gunshot analysis, footprint analysis, hair comparison and bite mark comparisons could reliably identify criminals.
He called on governments around Australia to urgently change the law so that Judges had to consider the reliability of forensic evidence before it was shown to juries and in that regard he referred to a 2016 High Court ruling that has meant that Judges cannot stop evidence from being shown to the jury over concerns of reliability.
In 2016 a major US Presidential Task Force on forensic science produced a report to the President asserting that 5 major forensic science techniques either do not work or have no strong evidence proving they work.  These related to the areas of matching a bullet to a gun, footprint analysis, hair comparison, DNA analysis of mixed samples, and bite mark analysis.
Forensic science in criminal cases depends for its effectiveness and credibility on the independence and scientific rigour of those called to give forensic evidence.
Forensic scientist Dr Mark Reynolds in commenting on the 2016 report has said,  “There was a lot of lip service given to that report but there was no palpable change.  Nothing has changed.  In my opinion it has gone backwards.”[1]
Relevantly, Dr Reynolds who was in charge of scientific quality in the Western Australian Police Force forensic science team and who retired in 2017 noted that scientists are supposed to objectively study evidence but most forensic scientists are police officers.
Dr Reynolds said, “The police hypothesis is to prove that a suspect did it.  The underpinning ethos is mutually exclusive.”[2]
More recently in May 2019 the House of Lords Science and Technology Committee called for urgent reforms to forensic science saying a crisis in forensic science has brought some of the country’s largest laboratories to the brink of collapse.[3]
Forensic science has been a consistent recurrent cause of miscarriages of justice over the last 30 years in Australia.  In 1980 Lindy Chamberlain was convicted of the murder of her young baby Azaria on the basis of supposed scientific evidence showing that red streaks under the glove box were arterial blood from Azaria when she was stabbed by her mother.  The Commission of Inquiry that was set up after the High Court rejected Chamberlain’s appeal found that the red streaks were derived from sound deadener paint sprayed on the glove box and other internal areas of the car when the vehicle was manufactured in the Opel car factory in Germany.
30 years later in May 2019, Victorian public servant David Eastman was found not guilty by a jury in a retrial after he had served 20 years in jail for the murder of Australian Federal Police Assistant Commissioner Colin Winchester.  A Commission of Inquiry set up to review Eastman’s conviction found that gunshot residue evidence that had been led in his trial was unreliable and should not have been used.
In Victoria, there is now a practice note listing standard questions that must routinely be asked of forensic witnesses after concerns were raised that forensic experts were not being properly questioned by both prosecutors and defence lawyers in Court.  As well, when fingerprint evidence is being led in Victorian Courts, the same Victorian practice note requires so-called fingerprint experts to tell the jury of the percentage error rates of fingerprint evidence.
It is high time that Victorian Court of Appeal President Maxwell’s call is implemented namely for governments around Australia to urgently change the law so that Judges have to consider the reliability of forensic evidence before it is shown to juries not only around the country but also particularly in Queensland.
[1] The Age “CSI not so scientific: Doubt cast on veracity of forensic evidence” by Liam Mannix August 18, 2019
[2] Dib.
[3] 1 May 2019 The Guardian (UK) Hannah Devlin, Science Correspondent
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The Australian Securities and Investments Commission has announced its corporate plan for 2019-2023.  The corporate plan reflects the shift in ASIC’s focus towards litigation and prosecution.  Directors, companies and corporate officers must be vigilant to protect their business in the face of investigations.
The corporate plan sets out a number of strategic initiatives that ASIC will continue to implement and reflects the commitment by ASIC to implement the Financial Services Royal Commission recommendations.
The plan reflects a policy change through the proposed ‘Why not litigate?’ operational discipline. ASIC’s enforcement work will now be guided by the ‘Why not litigate’ operational discipline. It says that this policy reflects community expectations that unlawful conduct should be punished.  ASIC has stated their commitment to increasing and accelerating their enforcement work. This will likely result in a significant increase in the number of prosecutions being conducted by ASIC through the criminal court process.
The corporate plan also reflects the role of the newly created Office of Enforcement which commenced on 1 July 2019. The Office of Enforcement will be responsible for most important enforcement matters across the Commission and monitor and report on ASIC’s enforcement activities.
There remain important investigatory and decision making processes which ASIC undertake before a decision to litigate or a referral to the Commonwealth Director of Public Prosecutions to prosecute will be made. A shift in ASICs focus towards prosecuting and litigating corporate crime will mean that companies, directors and corporate officers who are contacted by ASIC should seek advice from experienced corporate crime lawyers at the earliest opportunity in order to ensure that the impact on their business is minimised.
To learn more about the ASIC prosecution process and powers, please read our ASIC page and download our factsheet on the process.
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For the fifth year in a row, Robertson O’Gorman Solicitors have been named as a First Tier Queensland Criminal Defence Firm in the 2019 Doyle’s Guide. The list, released on 27 August, can be accessed here.
Terry O’Gorman and Dan Rogers have also been recognised as preeminent Queensland Criminal Defence Lawyers. Preeminence is awarded to those lawyers whose expertise set the industry standard. Terry and Dan make up 2 of only 5 preeminent Queensland criminal defence lawyers.
Senior Consultant Leigh Rollason was also recognised as a recommended Queensland Criminal Defence Lawyer.
The list of leading criminal defence lawyers can be accessed here.
The Doyle’s Guide is compiled by fellow criminal lawyers and barristers, and recognises the expertise of our firm’s criminal defence lawyers.
Congratulations to Terry, Dan and Leigh for this achievement!
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In 2010 the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act amended the Justices Act by removing cross examination as a matter of right in committal proceedings in Queensland.
Driven by the Moynihan Report[1], which called for a ‘more focused, streamlined effective committal process’, Queensland adopted the New South Wales system which requires a multiple step process to be completed before a witness may be cross examined in committal proceedings.
This process is initiated by the defence providing to the prosecution a ‘defence communication’ pursuant to section 110B(3)(a) of the Justices Act, which outlines the witness sought to be questioned, the general topics of questioning and the reasons to be relied on for that questioning. The prosecution then have the opportunity to consent to the questioning of the identified witness and the topics outlined. In the event of a refusal an application can then be made to the Magistrates Court to determine whether the witness can be cross examined and on what topics may form part of that examination.
Anecdotally, most practitioners report the starting position of the Prosecution is to refuse any request to cross examine witnesses. This can vary depending on the prosecuting body but, generally speaking, I have found that Police Prosecutions (who often retain carriage of indictable offences until committal in regional areas) are less inclined to consent than their DPP counterparts.
Since the roll out of these reforms the consistent approach from the Prosecution has been to address, where possible, the identified topics of cross examination by obtaining an addendum statement from the relevant witness. By taking this route the Prosecution figure that any ambiguity can be resolved with the need for the witness to be cross examined.
For those on the left hand side of the bar table this has led to much exasperation. Experienced practitioners are aware that the silences in the original statement may not be a simple case of inattention. Those silences may betray weaknesses in the prosecution case, inconsistencies between witnesses, or matters which may affect the credit of the statement writer. To seek an addendum to address these problems is akin to allowing the Prosecution to have a second bite at the evidence gathering cherry.
For these reasons some practitioners believe there is little utility in applying to cross examine witnesses. To do so may disclose your case theory or even subvert your client’s right to silence.
The problem with this approach is that it inevitably opens the defendant up to surprise at trial when the areas which required further scrutiny are finally put to a witness. Further, the more esoteric benefits derived from cross examination, such as an assessment of the witness’ demeanor and candour, are also foregone.
The middle ground regularly adopted by the defence is to request, on the face of the ‘defence communication’, that the contents of the communication not be disclosed to any prosecution witness. In addition and in response to the common practice outlined above, a request is often made specifically asking that no further addendum statement be obtained.

In the recent Supreme Court decision of Agnew v Thacker and Commissioner of Police[2]these requests were put under the microscope. Agnew had applied to cross examine witnesses and his lawyers had requested that the contents of the defence communication not be disclosed to prosecution witnesses and that no further statements be obtained. The Police went and took them anyway and, ultimately, the application to cross examine witnesses was refused.
Holmes CJ, in an overarching discussion about the lack of ownership in witnesses, found that “there was no legal basis for the applicant to place limits on the use of the information”.[3] With one fell swoop the Prosecution penchant for addendum statements has been validated. The Court found there was nothing inherently wrong with the provision of addendum statements in these circumstances and suggested the disclosure of a defence via a defence communication was similar to the disclosure required when relying on alibi or expert evidence.[4]
While it would be improper for a prosecutor to forewarn a witness about what evidence will be challenged under cross examination during a trial, it now seems permissible to allow for the same information to be provided to the witness prior to committal in the interests of ‘streamlining’ the committal process. This is a truly regrettable development.
Where does that leave the defence? The starting point is that we must assume that the Prosecution will disclose the contents of any defence communication with Crown witnesses. That means that extreme care must be taken in the drafting of the defence communication. Should the communication disclose too much detail of the proposed defence there is a real risk that the witness, who previously may have had cause to doubt their recollection when challenged, may tailor their evidence to address the concerns raised in the communication.
Moving forward greater forensic attention will required when drafting the defence communication. It will be imperative to explain the potential impact on a client’s trial prospects should they pursue cross examination at committal. On a practical level it may be beneficial to craft the communication with recourse only to the prosecution evidence, rather than running the risk that your client’s instructions percolate into and inform the communication. Finally, there is great merit in either engaging or at least consulting with your likely trial counsel prior to the provision of the communication. The forensic decisions surrounding this communication will impact how the trial is conducted and having counsel’s input at this early juncture will ensure consistency of tactical approach.
[1] Titled ‘Review of the civil and criminal justice system in Queensland’
[2] [2019] QSC 161
[3] Ibid, [41]
[4] Ibid, [34]
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In Queensland those who wish to work with, or foster, children must have a Blue Card. A Blue Card is required even if this ‘work’ is undertaken on a voluntary basis.
Obvious Applicants include those who work in education and childcare but also include sports coaches and administrators. Similar schemes are in place across the country.
When assessing the Applicant’s suitability the government agency responsible, Blue Card Services, considers the applicant’s previous criminal history (broadly defined[1]) and other matters they deem to be relevant (such as known mental health issues).
The whole process is governed by the Working with Children (Risk Management and Screening) Act[2]. This act, quite properly, acknowledges that applicants with a criminal history should not, due to that reason alone, be excluded from holding a Blue Card.
Central to the safeguards within the Act are a list of ‘disqualifying’ offences[3]. These offences are, as you would expect, largely offences against children. Convictions for these offences disqualify a person from receiving or holding a Blue Card. A tier below disqualifying offences are ‘serious[4]’ offences. If convicted of a serious offence there is a presumption against the grant of a Blue Card placing a reverse onus on the applicant.[5]
Unsurprisingly the demarcation of serious and disqualifying offences contemplates a nexus between prior offending against children and the potential of placing children at risk in the future. Those who have not been convicted of such an offence, irrespective of their other criminal history, are, prima facie, entitled to a Blue Card.  This common sense approach strikes the correct balance between protecting children on the one hand and the rehabilitation of the offender on the other.

In the wake of the tragic murder of foster child Tialeigh Palmer, the Queensland Government announced a Review of the Blue Card System. That review led to 81 recommendations and, perhaps more pertinently for the average applicant, ushered in a new era of increased scrutiny. This increased scrutiny has created a tension between the wording of the Act and its implementation.
The issue which has arisen, post Tialeigh Palmer, is the use of s221(2) which reads:
(2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [6]
It is this discretion vested in Blue Card Services which is contributing to huge delays, unjust outcomes and the issuing of more negative notices. Put simply, the bar for ‘exceptional case’ seems to be lowering at an alarming rate.
In the recent decision of FLS v Directional General, Department of Justice and Attorney-General[7] Member Pennell summarized[8] how QCAT has considered the concept of an ‘exceptional case’ (citations omitted):
Whether the circumstances of a person’s case would render it an exceptional case is the threshold to be applied when the tribunal is deciding whether an applicant should be issued with a positive notice. In applying that principle, regard must be given to the intent, purpose and design of the legislation. The tribunal need only weigh up the competing facts and apply the balance of probabilities principle.
Although the term “exceptional case” is not defined in the Working with Children Act, the phrase has been the subject of many previous discussions in a variety of jurisdictions, including the tribunal’s own appeal jurisdiction. An exceptional case is a question of fact and degree to be decided in each individual case and is a matter of discretion.
In exercising that discretion and deciding whether an exceptional case exists, the tribunal is required to bear in mind the gravity of the consequences involved if a positive notice and blue card were to be issued. Guidance has previously been provided to the tribunal that it would be most unwise to lay down any general rule about what an exceptional case is because all of these matters are matters of discretion11 and each case should be considered on its own facts.
Having regard to the relevant discussions on the term exceptional case, if the respondent decides that a case is exceptional because of the applicant’s criminal history, or because of an event that occurred involving that person, then justification may exist if the decision and refusal to issue a positive notice and blue card was made in the best interests of children.
The Member’s comments demonstrate that arbitrary consideration of what may constitute ‘exceptional’ is unhelpful. What is most important is that that the exceptional nature of the case be inextricably linked to the best interests of children. It is this issue which is being unreasonably expanded leaving many applicant’s stranded.
This is perhaps aptly demonstrated by two cases I have been involved with in the past few years. Other practitioners and Applicants have shared with me their frustration about many other such examples.
In one instance my client was found guilty of assault occasioning bodily harm assault in the Magistrates Court. He had been charged with choking and, when the evidence did not support that charge, it was downgraded. The defendant was placed on probation for 9 months and no conviction was recorded. There was never any suggestion that children were placed at harm during the offending. The defendant had no previous criminal history.
Blue Card Services obtained their information relating to an Applicant’s criminal history from Police. In this case they would have seen that he was charged with the offence of choking and accessed the summary of allegations drafted by Police (which ultimately formed no part of the sentencing basis). Acting on that misleading, preliminary and untested information, they deemed my client to be an exceptional case. They did not seek out the sentencing remarks, which would have shown the proper sentencing basis. They did not seek out the exhibits to the proceedings, which included a psychological report which spoke of a low risk of re-offending. Instead, he was issued a negative notice and forced to apply to QCAT to appeal this decision. He is currently mired in that process.
In another case[9] my client unlawfully disclosed information she obtained in a coercive hearing. She pleaded guilty and was fined, no conviction was recorded. That coercive hearing related to the investigation of the death of a child. There was no suggestion that she was personally involved in harming the child. The offence was not a disqualifying or serious under the legislation. She had no criminal history and was issued a negative notice.
In that case the Applicant had worked in allied care for many years. More than 2 years had passed since she had been found guilty of the offence and more than 4 years since the offence took place. Throughout that period she had received ongoing counselling from both a psychologist and a psychiatrist. She had gone to the trouble of unsuccessfully applying for the removal of the negative notice already and spent a small fortune on reports, treatment and legal fees.
Despite all of this, Blue Card Services still wanted to torture the definition of ‘exceptional’. This was concerning in two aspects. Firstly, it suggested that even the most abstract involvement of a child engaged the ‘exceptional’ clause and secondly, it suggested that someone who had been truly committed to addressing underlying issues which contributed to their offending was given no discernable credit for those efforts.
Fortunately in that case QCAT overturned Blue Card’s decision paving the way for the issuing of a positive notice. While this provides some cold comfort, there are questions which still need to be asked: How many are in the position to pay a lawyer and a psychologist to appear and increase their chances of success? How many will be disadvantaged by being opposed to a trained lawyer who specializes in appearing in the QCAT jurisdiction? How many job opportunities have been missed by those without the ability to challenge a negative notice?  How many will have career paths closed to them on the basis that their non-disqualifying or serious offending is deemed ‘exceptional’?
Blue Card Services are reacting to the increased scrutiny on their system in the wake of some well documented tragedies. That, in itself, is understandable. However, if it were truly the legislature’s intention to make it this difficult to obtain a Blue Card the presumption in favour of a Blue Card would have been dispensed with. As it has not been we are seeing an increased reliance on a case being deemed ‘exceptional’ which, in of itself, devalues that very standard. Reform may be needed to re-balance the playing field in line with the legislature’s intention.
[1] Including where the charges have been discontinued, or sentencing facts have been significantly altered;
[2] Henceforth ‘the Act’
[3] See schedule 4 & 5 of the Act
[4] See section 167 and schedules 2 & 3 of the Act
[5] Section 225 of the Act
[6] My emphasis
[7] [2019] QCAT 5
[8] At [7] – [10]
[9] See published decision: https://archive.sclqld.org.au/qjudgment/2017/QCAT17-411.pdf
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The Black Economy Taskforce produced its final report in October 2017.  The Chair, Michael Andrew, said in the covering letter in producing the Taskforce report that “there was a strong sense of community outrage at the inequality and unfair disadvantage created by the Black Economy.  I hope that by creating an efficient level playing field we can lower taxes, treat all businesses and workers fairly, increase community services or reduce debt if all Australians operate within the rules”.
Last week, the federal government released an Exposure Draft Explanatory Materials in respect of a Bill that proposes to implement the Taskforce’s recommendation.  The Bill is the Currency (Restrictions on the Use of Cash) Bill (2019).
The Bill introduces offences for entities that make or accept cash payments of $10,000 or more.
The explanatory material notes that “this ensures that entities cannot make large payments in cash so as to avoid creating records of the payment and facilitating their participation in the Black Economy and undertaking related illicit activities”.
 
The explanatory materials go on to observe that “to mitigate the risk that large, anonymous cash payments may be used to facilitate money laundering and tourism finances, businesses that provide certain services must report cash payments for goods and services of $10,000 or more. This includes business that provide financial services and provide gambling services.
In the 2018-2019 budget, the government announced that it would introduce a cash payment limit for transactions between businesses and individuals with effect from 1 July 2019.  This was recently extended to 1 January 2020.
The Bill creates new offences that apply if an entity makes or accepts cash payments with a value that equals or exceeds the cash payment limit of $10,000.
The new law introduces a number of offences carrying strict liability.
Business must be conscious of these potential changes to legislation in order to ensure compliance with Regulatory Bodies. The imposition of this requirement if passed, will add to the already strict regime of AUSTRAC reporting and money laundering.
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Registered health practitioners are subject to a number of regulatory schemes administered by AHPRA and the Office of the Health Ombudsman.  It is important to understand the nature of the powers to investigate and assess health practitioners and students.
A National Board may require a registered health practitioner to undergo a health assessment if the Board reasonably believes, because of a notification or for any other reason, that the registered health practitioner may have an impairment.  For the purposes of the Health Practitioner Regulation National Law Act 2009 (Qld) the word ‘impairment’ means the person has a physical or mental disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice.
As part of an investigation, it may be that some information has been provided which requires expert advice through a health assessment. This assessment may be used by the National Board to take action in relation to the registered health practitioner’s registration including in relation to the conditions of that registration.
The National Agency will appoint an assessor chosen by the National Board to carry out the assessment.  A requirement for a health practitioner to attend a health assessment must be made in writing.  For the purpose of conducting the assessment, the person may be required by that notice to give stated information to the assessor within a stated reasonable time and in a stated reasonable way or attend before the assessor at the stated time and place.  A health practitioner may be required to participate in a health assessment for the purpose of the Board investigating relevant information.
It is important for practitioners to be reminded of the right to appeal against any conditions imposed on the practitioner’s registration particularly as a result of these health assessments. In the case of an appeal to the Queensland Civil and Administrative Tribunal, there are a number of review powers that QCAT is able to exercise to reconsider and assess the appropriateness of the actions taken.
In a recent decision of the Queensland Court of Appeal, Nursing and Midwifery Board of Australia v HSK [2019] QCA 144 the Court considered whether or not QCAT had the power to compel, as part of that review process, a further health assessment to be undertaken.  The Court endorsed the decision of QCAT, namely, that QCAT did not have the power to compel a registered practitioner to attend a further health assessment as part of a hearing of the review of a reviewable decision.
A registered health practitioner should obtain advice at the earliest opportunity in relation to any investigation by AHPRA or the Health Ombudsman.
If you require advice, contact one of our occupational discipline specialists to discuss how we can help you protect your livelihood and professional reputation.
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If you and your business understand the ASIC investigation process, you will be able to better manage the investigation with as little disruption as possible to your business.
The Australian Securities & Investments Commission is Australia’s company regulator.  ASIC is responsible for investigating company misconduct and enforcing company law.
A complaint is taken
ASIC may be informed of company misconduct from a number of different sources. These sources may include a member of the public reporting misconduct. This may occur when a client or customer of the business is dissatisfied with an aspect of the company’s handling of a particular matter.
There are a number of referrals made by other agencies and regulators who may report misconduct to ASIC. This is the case where there may be an occupational regulator whose ambit does not extend to addressing a particular part of the complaint which would be dealt with by ASIC.
There are also a number of reports which ASIC receives as required by law which may prompt an investigation. For example, through statutory reports from auditors, insolvency practitioners and licensees.
Scope is assessed
Once a complaint is taken, ASIC will assess whether or not the complaint falls within the scope of their regulatory responsibility.  If it does not, it will be referred to another entity or regulator as appropriate.
In order to assess whether or not the complaint falls within the scope of ASIC’s regulatory powers the following is considered:

The extent of the harm or loss;
The benefits of pursuing the misconduct relative to the cost of public monies;
The type and seriousness of the misconduct alleged and the strength of evidence supporting the complaint;
Alternative courses of action other than formal investigation.

The seriousness of the alleged misconduct includes a particular impact on market integrity or the confidence of investors and financial consumers will guide the course of an investigation by ASIC.  The regulator will look to the impact and consequences of the misconduct in order to assess whether or not it is worth pursuing.
The regulator will also consider the extent of the misconduct and whether or not it is a widespread concern or part of a growing trend.
Perhaps one of the most pressing considerations for businesses is to see whether or not ASIC would consider alternatives to formal investigation through other regulatory tools. Other regulatory tools may include engagement with stakeholders, surveillance, guidance, education and policy advice instead of enforcement action.
Evidence gathering methods
Once ASIC decides whether or not a formal investigation will be pursued, it has a number of information gathering tools which it is able to use.  These tools include:

Requiring the production of documents;
Inspecting company documents;
Requiring disclosure of information;
Requiring company officers or employees to attend compulsory examinations;
Compelling assistance with an investigation; and
Applying for a search warrant.

The information gathering tools that ASIC have are powers that compel information and documentary evidence from individuals and the company.  In relation to each of these powers, it is important that company officers and employees are aware of their rights and responsibilities in relation to that compliance.  Before you provide any documents to ASIC or any other regulator, it is important that you obtain advice.
It may be that while ASIC makes a request from you for documents, there may be no basis upon which you might be compelled to provide that material at that time.  If you are given a notice by ASIC which sets out a requirement to produce documents or information you may be compelled to produce documents or information. Before you comply with such a notice, you should seek advice from a lawyer. Documents may tend to incriminate you or the company in relation to certain aspects of your operations.  This can have significant consequences for you and the company if not handled appropriately.
You will not be required to produce documents which are the subject of legal professional privilege.  If you are unsure about how to comply with a notice given to you by ASIC, you should seek advice at your earliest opportunity.
Penalties for misconduct
If an alternative course of action is not available, ASIC will assess appropriate remedies and enforcement tools.  These may include:

Punitive criminal penalties
Protective action

Punitive criminal penalties can include terms of imprisonment, community service orders, financial penalties under criminal law and the possibility of convictions.  If you are facing a criminal proceeding for company misconduct, the penalties may include very serious consequences for you and the company.
Protective actions are actions which are designed to deter the conduct in a way that does not involve criminal penalties.  These actions may include disqualification from managing operations or revocation, suspension or variation of licenses and public warning notices. Although not personally punitive in the way that a jail sentence would be, these protective actions can have devastating effects on companies and businesses.
Preventative action
There are a number of proactive governance, risk and compliance practice that you can engage in to ensure that your practice limits the risk associated with ASIC investigations or to avoid ASIC investigations altogether.
It is important that you review your current compliance, risk and governance documentation, policies and structure to assist you to develop more effective frameworks.  You may undertake systematic file reviews or peer reviews in order to ensure compliance across your company.  You may undertake a legal risk assessment or engage an external advisor to review your operations.  Taking these steps may assist you to ensure that, in the event of ASIC receiving a complaint, you are able to demonstrate the proactive steps you have taken and minimize the risk to your overall operations.
How can Robertson O’Gorman Solicitors help you?
If you are concerned about a complaint of misconduct being made against you or your company, it is important that you immediately seek legal advice. Delays in obtaining advice can lead to significant consequences for your company and you as a company officer or employee.
At Robertson O’Gorman Solicitors we pride ourselves on protecting your interests in the face of an investigation by the regulator so that your business can get back on track.
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A human rights complaint or action may be brought for a breach of section 58(1) of the Human Rights Act 2019 (Qld) (‘the Act’). This states a public entity must not act or make a decision in a way that is not compatible with human rights; or in making a decision, fail to give proper consideration to a human right relevant to the decision.
The Act does not give a direct remedy to individuals whose human rights have been breached by a public entity. Rather, people seeking to allege that their rights have been violated are required to rely on a separate ground of relief, at which point they could raise unlawfulness under the Act.
 
Dispute Resolution
The majority of human rights complaints made under the Act will be remedied through the dispute resolution framework implemented by the Queensland Human Rights Commission (QHRC). The process of bringing a complaint to the QHRC is discussed in the previous blog post “Queensland Human Rights Commission”.  Conciliation conferences will be held between complainants and representatives of the relevant public entity. They will be facilitated by an accredited dispute resolution practitioner from the QHRC, with the aim of reaching a practical agreement to resolve the complaint. Participation in a conciliation conference does not affect a complainant’s right to seek relief or remedy through legal proceedings. However, this process is relatively informal and cost effective in comparison to proceedings.
Who you can bring?
When attending a conciliation conference you may bring a support person. However, this person is not entitled to speak during the conference and should be someone that is not involved in the complaint. Upon request, you may also be entitled to bring a legal representative with the conciliator’s consent. During the conference you can request a short break to talk to your support person or legal representative in private. However, you will still be required to speak for yourself throughout the conference. Further, if you require an interpreter this can be provided by the QHRC.
What is the conciliator’s role?
The conciliator’s purpose is to ensure the conference is conducted fairly for all involved. A conciliator will not make a decision about whether a breach of the Act has occurred or what the outcome of the complaint will be as a judge would, nor can they tell you what to offer or take sides during the conference. Rather, their role is to facilitate discussion of the complaint by asking questions of both sides. Additionally, they will explain the law and advise the parties of the outcomes in similar cases so parties understand the likely result if the complaint is not resolved and legal proceedings are commenced. The conciliator may also assist the parties in generating options for resolving the complaint.
How is the conciliation conference conducted?
Conferences may be conducted as a face-to-face meeting, teleconference, or by a “shuttle” method whereby the conciliator shifts between talking to each party in separate rooms. In the conference you will be required to talk about what happened and how it has impacted you, as will the other side. If it is desirable, the conciliator may seek to speak to each side separately. The parties will then discuss how they could resolve the complaint. If agreement is reached, this will be recorded in writing and signed by the parties. Once signed, this agreement is binding. If agreement is not reached, the parties will be asked what next steps they would like to take to resolve it, such as legal proceedings.
 
Legal Proceedings
Proceedings regarding a breach of section 58(1) may only be brought through what is known as a “piggy-back” action. That means proceedings can only be brought under section 58(1) of the Act in conjunction with an independent cause of action, thereby “piggybacking” it to this action. In practice, the existing cause of action is likely to be seeking judicial review of the public entity’s decision which is what the human rights complaint relates to. Legal proceedings relating to a breach of the Human Rights Act 2019 (Qld) cannot be brought independently.
A person is entitled to seek any relief or remedy that they could have claimed in an independent action, excluding monetary damages. Even if the independent cause of action fails, for example an action in judicial review, the person may still be entitled to a remedy for the human rights contravention.
 
This is the final post in our human rights series! Other blog posts within the series include:

Human Rights Act 2019 (Qld) passed for Queensland
Right to a Fair Hearing
Humane Treatment when Deprived of Liberty
Criminal Proceedings
Freedom of Expression and Freedom of Assembly
Queensland Human Rights Commission

 
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The Queensland Human Rights Commission, created by the Human Rights Act 2019 (Qld), will commence from 1 July 2019 through changing the name and expanding the functions of the pre-existing Anti-Discrimination Commission Queensland (ADCQ). The ADCQ has the power to handle complaints made under the Anti-Discrimination Act 1991 and provide training. From 1 July, these powers will extend to cover complaints and training relating to the Human Rights Act 2019.
 
Making a Complaint to the QHRC
Complaints must relate to acts occurring on or after 1 July 2019. A complaint must relate to an alleged breach of section 58(1), stating that a public entity has:

acted or made a decision in a way that is not compatible with human rights; or
in making a decision, failed to give proper consideration to a human right relevant to the decision

Before a person or entity can make a complaint they must make a complaint to the public entity itself, to be managed under their complaints process. If, after 45 business days, there has been no response or an inadequate response a complaint may be made to the QHRC. A complaint must be made in writing within one year of the alleged human rights contravention, stating the complainant’s name and address.
The QHRC will provide a dispute resolution process for handling human rights complaints, namely conciliation conferences. The obligations and dispute resolution functions are expected to start from 1 January 2020.
The Commissioner must refuse to deal with a human rights complaint if the Commissioner considers the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance. It may also determine the complaint has already been dealt with by another entity, or could more appropriately be referred to another entity. In these circumstances, the complaint lapses and a further complaint cannot be made.
 
Other functions of the QHRC

if asked by the Attorney-General, to review the effect of Acts, statutory instruments and the common law on human rights and give the Attorney-General a written report about the outcome of the review;
to review public entities’ policies, programs, procedures, practices and services in relation to their compatibility with human rights;
to promote an understanding and acceptance, and public discussion, of human rights and the HR Act in Queensland;
to make information about human rights available to the community;
to provide education about human rights and the HR Act;
to assist the Attorney-General in reviews of the HR Act under clauses 95 and 96 (review of the HRs Act);
to advise the Attorney-General about matters relevant to the operation of the HR Act;
another function conferred on the Commission under the HR Act or another Act.

 
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every week!
 
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The Queensland Law Reform Commission currently has a Reference titled “Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies”. A Consultation Paper has been produced in that regard.
The Consultation questions are as follows:-

What consideration should apply to surveillance that is conducted in a public place?
Should there be a prohibition on the use of surveillance for the purpose of overhearing, recording or listening to a conversation and determining the geographical location of a person, vehicle or object?
In what circumstances should a person be permitted to use a surveillance device with consent?
Should there be a general provision permitting the communication or publication of information obtained through the lawful use of a surveillance device?
How should the admissibility of evidence in Court proceedings of information obtained by the unlawful use of a surveillance device be dealt with?
Should there be a right to bring civil proceedings in respect of a contravention of the prohibited use of a surveillance device or the prohibited communication or publication of information obtained through the use of a surveillance device?
Should there be an independent regulator in respect of enforcement powers and, if so, what should that entity be?

The Consultation Paper notes that in Queensland the use of surveillance devices for civil surveillance is not comprehensively regulated and that the principal Act in that regard is the Invasion of Privacy Act 1971 which regulates only the use of listening devices.  It is noted that in most other Australian jurisdictions, surveillance devices legislation regulates the use of listening devices, optical surveillance devices, tracking devices and data surveillance devices.
 
The Queensland Drones Strategy
In June 2018 the Queensland Government released the Queensland Drones Strategy which was designed to “leverage the State’s innovation success to take advantage of new and emerging opportunities in the drones industry”. While noting the potential of drone technology to enhance people’s lives and support communities, the Queensland Drones Strategy also had regard to concern about the adequacy of Queensland legislation to protect the privacy of individuals with the emergence of drones.  The privacy aspect of drones are therefore within the current QLRC Reference.
While the questions posed in the Consultation Paper specify the particular topics that are being examined by the QLRC, the actual Terms of Reference directed by the Attorney‑General to the Commission in July 2018 are to recommend whether Queensland should consider legislation to appropriately protect the privacy of individuals in the context of civil surveillance technology.
Unfortunately the Terms of Reference exclude from the review Queensland’s existing law regulating the use of surveillance devices for State law enforcement purposes where the Police Powers and Responsibilities Act regulate the use of surveillance devices by the Police and there is similar regulation by the Crime and Corruption Act.  The QPS and CCC are outside the scope of the Commission Review.
The issue of whether there should be a legislative framework to regulate the surveillance of workers by employers using surveillance devices is the subject of a separate Term of Reference to the Commission.
The Consultation Paper notes that there have been a number of recent Law Reform Reviews and other Inquiries which have considered surveillance regulation in Australia. These include the New South Wales Law Reform Commission Report on surveillance in May 2005, the Victorian Law Reform Commission Report on surveillance in public places in June 2010 and the Australian Law Reform Commission Report in 2014 dealing with serious invasions of privacy in the digital era.
The Commission, while looking at more obvious forms of surveillance such as audio and visual surveillance, is also looking at data surveillance, tracking or location surveillance and biometric surveillance.
Data surveillance refers to the systematic use of personal data systems and the investigation or monitoring of the actions or communications of one or more persons and it may include surveillance of a person’s electronic records including those relating to credit cards or loyalty cards, email communications or computer usage and internet activities using tools such as cookies, keystroke monitoring or spyware.
Tracking or location surveillance relates to the observation or recording of a target’s location. Location data may capture the location of a person or object at a point in time or monitor a person’s movements in real time.  It may also involve predictive tracking or retrospective tracking based on the data trail of a person’s movements.  Examples of location and tracking devices include global positioning system (GPS) and satellite technology tracking, radio frequency identification (RFID) and automatic number plate recognition (ANPR).
Biometric surveillance refers to the collection or recording of biological samples and physical or behavioural characteristics, usually for the purposes of identifying an individual. This may include fingerprints, cheek swabs, iris scans and blood or urine samples as well as face or voice recognition or gait technology.
The Commission is also considering another emerging technology known as ‘smart CCTV’ which combines CCTV cameras with facial recognition software and artificial intelligence (including predictive systems to identify different behaviours). Facial recognition software can automatically analyse video, pick a face from a crowd and identify the individual by comparison with a database of known faces.  The person can then be tracked from camera to camera across wide geographical areas without any human intervention.  Automated cameras can also be programmed to identify ‘suspicious behaviour’ or ‘threats’, for example an individual entering a restricted access zone or unattended luggage at an airport.
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The right to a fair hearing is now enshrined in Queensland domestic legislation under the Human Rights Act 2019 (Qld). Every person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right to a fair trial in other jurisdictions has been interpreted as extending to the investigation and evidence-gathering phases of the criminal process.
 
What is ‘Fair’?
While what is ‘fair’ will depend entirely on the circumstances of a particular case,[1] there are a number of accepted factors relevant to criminal proceedings such as:[2]

A court must be competent, independent and impartial. A court must decide a case according to the law, with no external factors or personal bias affecting the decision. In Queensland, judges and the court system are entirely separate from Parliament and other government bodies to ensure they do operate independently.
A person charged with a criminal offence is to be presumed innocent until proven guilty, with the prosecution bearing the onus of proving the offence beyond reasonable doubt.
Defendant must be afforded adequate time and resources to prepare for a trial. This includes the ability to access and communicate with a lawyer chosen by them.
A trial must proceed without undue delay since the arrest. When considering a delay, the court will have regard to the length and reasons for the delay, as well as whether it prejudiced the defendant.[3]
When charged with a criminal offence, unless explicitly electing to be self-represented, a person has the right to engage a lawyer. If they are unable to pay for representation, they will be afforded a legal advice or representation through Legal Aid or a community legal centre.
Right to an interpreter if they cannot speak or understand English adequately to understand the charges or proceedings in court.
A person charged with a criminal offence has a right not to self-incriminate themselves or confess at all stages throughout police questioning, to the conclusion of the trial. A limited number of exclusions apply to this right.

 
Disclosure and Evidence
An individual charged with a criminal offence has the right to know the case against them. They must be informed of the charges against them promptly, in a language they understand, and in sufficient detail to enable them to engage a lawyer and defend the charges. An accused must also have access and disclosure of evidence and witnesses to be presented against them. [4] These disclosure obligations seek to address the power imbalance between the resources available to the state, and those available to an individual charged, ensuring they are not at a disadvantage. One important role of a criminal lawyer is to ensure this disclosure occurs, and to review the (often overwhelming) amount of information provided, using this to form a defence.
 
Public Hearings and Judgements

The right to a fair trial also includes the right for the trial and judgement to be made available to the public. This is internationally recognised as relating to the right to a fair hearing as it facilitates public scrutiny of the criminal justice and court systems, often by publication of information by the press. This safeguards individuals charged against judicial corruption or bias. However, there are exceptions when the right to a fair trial may require the public or media be excluded from the court or judgements not be published. The Human Rights Act 2019 (Qld) allows for these exceptions when it is in the public interest or the interests of justice. In a criminal case, this may include circumstances where:

It is required to protect the safety or identity of a witness or any other person; or
It is required in the interests of national security; or
To avoid undue distress or embarrassment to a witness, particularly a child, in proceedings relating to family and sexual offences; or
It is necessary to ensure the defendant is not prejudiced. For example, a jury is not allowed to know a defendant’s criminal history as it may impact their verdict in relation to the current offence they are being tried for. In high profile cases, if this information is widely publicised a mistrial may result wasting time, money and causing undue stress to all involved.

 
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!
[1] Dietrich v R (1992) 177 CLR 292.
[2] Australian Law Reform Commission, “Attributes of a Fair Trial” (undated)..
[3] Foote v Somes [2012] ACTSC 63.
[4] Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1; R v Falcone (2008) 190 A Crim R 440.
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Dear Minister RE:      SEXUAL OFFENDER REHABILITATION PROGRAMMES I refer to the judgment of Queensland Supreme Court Justice Applegarth in Queensland […]

The post Letter to The Honourable Mark Ryan MP – Terry O’Gorman, Vice-President of QCCL appeared first on Robertson O'Gorman.

The Courier Mail has published an article regarding the establishment of an independent inspectorate of prisons for Queensland featuring comments […]

The post Courier Mail Article – Jail Inspectorate Must Be Independent, Says Top Civil Liberties Lawyer Terry O’Gorman appeared first on Robertson O'Gorman.

Home Affairs Minister Peter Dutton is again engaging in overblown rhetoric in calling for an Australia wide Public Register to […]

The post Media Release – Terry O’Gorman, President of ACCL appeared first on Robertson O'Gorman.