ISSN 1835-7199 (Print) ISSN 1449-9207 (Online) 2010 … · 2010 Volume 2 ISSN 1835-7199 (Print)...

2010 Volume 2ISSN 1835-7199 (Print)ISSN 1449-9207 (Online)

Going green: Sustainable housing laws in Queensland

Skimming the surfaceConsumer scams, identity fraud and the uprising of card skimming

Children, sport and the law

Child care in Queensland:

Towards a National Quality FrameworkGlassing

The Melbourne Storm salary cap scandal

The Verdict is the official publication of the Queensland Law Society’s school and community education service. The Queensland Law Society provides specialised legal information to schools, community groups and the general public. The Society encourages the community to advance their knowledge of the law, the legal system and the service solicitors can provide.

Editor: Calista BruschiDesigner: Christine FitchewProofreaders: Celia Casey Vicki MooreAdvertising: Louise GlynnPrinter: ipg printOnline assistant: KintekRegular contributors: Calista Bruschi, Melanie Thrupp, Chris Davies, Skye Growden, Raylene D’Cruz

Editorial Enquiries:Calista Bruschi: 07 3842 5849email: [email protected]

Advertising Louise Glynn: 07 3842 5931 [email protected]

Queensland Law SocietyLaw Society House 179 Ann St Brisbane Qld 4000

GPO Box 1785 Brisbane Qld 4001

The Verdict is published by the Queensland Law Society.© Queensland Law Society 2010.

DisclaimerContributors to The Verdict express their own views and these do not necessarily reflect the opinions or views of the Queensland Law Society. The content of any part of The Verdict should not be construed as legal or professional advice.

With developments in technology we consumers are increasingly using our credit and debit cards to purchase in stores, shop and pay bills online and even give out our personal details over the telephone. But just as technology is making it easier and more efficient for us to conduct our business, it is also making it easy for fraudsters to steal our card details, money and identity.

When it was reported that card skimming had been detected in my local area, it highlighted the importance of why I needed to be careful with my credit and debit cards. Whilst I am not particularly flippant in the use of my bank cards, if I had to think about where I had used them, and therefore who had been exposed to the personal information they contained, the list is potentially frightening (and I don’t consider myself an avid shopper).

This edition’s feature article on card skimming is a timely reminder that when it comes to credit and debit card fraud, offenders are uncovering new, more deceptive and more undetectable methods to achieve. Scams that once were conducted over the phone or via the mail to your letterbox, are now found on the Internet, and are being taken to the streets through the use of mobile card skimming devices.

Banks, law enforcement agencies and retailers have warned stores and traders to be more secure with their EFTPOS machines to prevent the installation of skimming devices. In Queensland, new laws have been introduced aimed at curbing the growth of identity theft, by targeting criminals who skim credit and debit cards.

You may not have been a victim of such a crime, but the social and financial costs of having to rebuild your reputation, and the time it takes for both, should encourage you to be vigilant.

Calista Bruschi

Editor’s commentCalista Bruschi

Features

02 Skimming the surface: Consumer scams, identity fraud and the uprising of card skimming

05 Children, sport and the law

09 Law and justice in your community: Law week 2010

10 The Melbourne Storm salary cap scandal

14 Child care in Queensland:Towards a national quality framework

18 Law and justice in your community: Law week 2010

20 Going green: Sustainable housing laws in Queensland

22 Glassing

2010 Volume 2

ContentsRegular features

08 Private eye

12 In the news

19 Web weaving

27 Puzzle

28 Glossary

28 Events calendar

28 Puzzle solution

5

20

22

The Verdict – Volume 2, 20102

Feature

Credit and debit card skimming has emerged as a significant law enforcement issue for Australia in recent years. It is estimated that card skimming costs many Australian individuals and businesses in excess of $100 million every year1.However, card skimming is only the latest attack method in a series of e-crimes aimed at defrauding consumers. Other activities of deception include online auction fraud, computer hacking, identity theft, and advance fee schemes. Collectively, consumer scams contribute a considerable portion of the $8.5 billion cost that fraud has on the Australian community.As a result of rapidly changing technology, and especially since the introduction of the Internet, where there is an unprecedented access to online databases, now more than ever before consumers are encouraged to be vigilant against those targeting the unsuspecting.

Consumer scamsConsumer scams have been defined as ‘a fraudulent invitation, request, notification or offer, designed to obtain someone’s personal information or money or otherwise obtain a financial benefit by deceptive means’2. It is difficult to know for sure just how many Australians are affected by consumer scams and identity fraud each year. This is due largely to the diversity of offences and the number of unreported fraud incidents. The Australian Institute of Criminology, as part of the Australasian Consumer Fraud Taskforce, conducted an online survey between January and March 2008 which helped determine the types of scam invitations3. The survey defined ‘victims’ as persons who had responded in a positive way with those who had sent the unsolicited invitations by requesting further information or by supplying personal details or money. Four specific types of scam invitations were identified:

■ Lottery scams, where the offer of a prize, usually from an overseas location, is presented even though the person has not entered

■ Money transfer scams involving requests to transfer money into a person’s bank account. The story associated with this form of scam varies, but the common component is that upfront payment is exchanged for the promise of a larger repayment in the future

■ Phishing scams involving fraudulent requests for personal details. The success of this form of scam is that ‘scammers’ usually purport themselves to be well-known and respected businesses and request confirmation of details such as bank account numbers or passwords

■ Financial advice scams, where the promise to ‘get rich quick’ is offered.A fifth category, for ‘other’ scams included ‘work from home’, ‘inheritance’ and ‘dating and romance’ scams. It was this category,

that elicited the largest percentage of positive responses, while lottery scams and money transfers respectively were the next most successful for generating a positive response. It also appeared that the impacts on victims are as diverse as the type of scams. However, victims of identity fraud specifically, were not only impacted upon financially; loss of savings, costs associated with reporting and preventing identity use, and the cost of restoring a credit rating and/or personal and professional reputations, but also experienced physical and mental impacts, especially when an identity had been stolen and used in a criminal activity. A 2004 study exploring the psychological and somatic impacts of identity theft revealed that

emotional and physical reactions from victims ranged from anger and paranoia to anxiety, sleep deprivation or disruption and depression4.

Identity fraudIn the simplest sense, identity fraud involves the creation of a false identity for oneself, or the use of the stolen identity of another person to impersonate that other person, in order to carry out illegal activities5. It is a fast-growing crime, and it is a crime that is regarded as the primary step in a broader series of offences. These offences include:

■ The use of stolen credit or debit cards, or credit or debit card numbers

■ Forging credit or debit cards ■ Fraudulently receiving money ■ Creating fake bank accounts, or applying for loans ■ Fraudulently claiming financial benefits, such as pensions or entitlements (eg., Centrelink)

■ Evading the payment of taxes or other debtsOn a larger scale, identity fraud is used in money laundering, terrorism, people smuggling, drug trafficking and drug smuggling, and stalking6. Possibly the most alarming example of how identity fraud can be used to carry out a criminal activity is in the destruction caused by terrorists when they caused two aeroplanes to crash into the World Trade Centres in the United States of America in September 2001. The terrorists paid a legal secretary to falsify court documents and residency information which were used to obtain official identification papers from the government, permitting them to board the aeroplanes which they then hijacked7.However, identity fraud need not be an elaborate operation. Journalist Nancy Perry recalled her personal experience after a hacker pulled her personal file from a credit reporting agency:“In minutes…he had a virtual summary of my life: past addresses and

It is estimated that card skimming costs

many Australian individuals and

businesses in excess of $100 million

every year1.

Skimming the surface:Consumer scams, identity fraud and the uprising of card skimmingby Calista Bruschi

The Verdict – Volume 2, 2010 3

Feature

employers, credit card numbers, mortgage information, bank accounts and all the other personal data that appear on the credit reports for me and 160 million other Americans. Armed with that information, he was able to open nearly 30 separate loan, checking and credit accounts at banks, department stores, electronics retailers, appliance outlets and other merchants. And he did it as fast as kids unwrap birthday presents.’ 8

In Queensland, the Crime and Misconduct Commission (CMC) stated that identity fraud was the fastest growing category of fraud offences globally9. Technological advancements, including improvements in photocopying, scanning and printing equipment and image enhancement software, have made it easier for criminal groups to access personal information and create legitimate-looking, but albeit fraudulent, documents.Protecting consumers against fraud is an on-going issue, and with the emergence of credit and debit card skimming in recent years, scams are evolving in order to remain viable.

Card skimmingCard skimming is the illegal copying of information from the magnetic strip of a credit or debit card, usually by electronic means. The unique aspect of card skimming is that it can occur at any time in any location and does not require any sort of contact between the person skimming the information and the card holder. The personal details of the card holder can be retrieved and stored for later transmission by using a device (known as a ‘skimmer’) specifically designed to capture the data from the magnetic strip of the card. Such devices can be used at automatic teller machines (ATM) or terminals at the point of purchase (EFTPOS). Whilst it is also common for new credit cards to be stolen from customers’ mailboxes in order to obtain the personal identifying information, the most notable method of card skimming is by ‘bugging’ an ATM or EFTPOS terminal or by tapping the telephone cables, making detection difficult10.The arrest of two men involved in an alleged EFTPOS skimming ring in April 2010 prompted the Queensland police to renew consumer warnings about the dangers of scams. Detective Acting Chief Superintendent, Peter Crawford of the Queensland Police Service said card skimming technology was constantly evolving, and that “the complexity and sophistication of the methods being used are changing and becoming much more efficient”11.In Australia, credit and debit card skimming cost individuals and businesses in 2008/2009 approximately $70 million12. It is a problem that is certain to increase with the launch of ‘contactless’ credit cards by two notable banking institutions in Australia13. Contactless cards contain a small radio frequency identification (RFID) device that is capable of transmitting information to a compatible reader or terminal. The RFIDs come in various configurations. At best, the RFID will have only a short range with which to communicate with a terminal; being activated when placed in close proximity to a terminal to have the card’s information transmitted. However, concern has been raised over the safety and security of the cards, with the potential for skilled fraudsters to develop a ‘rogue terminal’ so that the card’s information can be read from a greater distance and reproduced. Hand-held portable skimmers have been discovered in Australia that are the size of a pager, but there are also reports that smaller devices have been designed overseas14. When RFID passports were introduced in the United Kingdom in 2006 it took just two days for the passports and the information they contained to be cloned15, and with instructions on building small terminals available on the Internet, it is only a matter of time before the face of identity fraud changes again.

Laws relating to skimmingThe activity of credit and debit card skimming poses a number of challenges when it comes to the enforcement of current laws. Often, it is not known by the card holder that a crime has been committed until the bank statement arrives and the fraudulent purchases are uncovered. While a number of offences exist that would cover the

activities associated with card skimming, it is unlikely that any of these would sufficiently meet the needs of victims of card skimming offences. Similar circumstances exist in relation to identity fraud offences, with difficulties in applying conventional fraud offences for instances of identity fraud. In fact, the Commonwealth and South Australia are the only two jurisdictions that specifically criminalise identity fraud16. In Queensland, the Criminal Code was amended in 2007 to provide an offence for obtaining and dealing with identification information17, but does not cover the possession of equipment necessary to commit identity fraud. There is also no current law prohibiting the importation of a skimming device, as doing so would complicate the importation of magnetic strip readers for legitimate purposes in Australia.The biggest drawback in providing adequate legislation for identity fraud and card skimming offences seems to be related to the rapidly changing technology. It has also been suggested that Australia is lagging behind countries such as Japan, South Korea, Taiwan and Malaysia (regarded as being the biggest in the credit card market) and is an easy target18. However, legislation that specifically covers offences of credit and debit card skimming, and identity fraud will assist in reducing the occurrence and impact these activities have.In the meantime, the most effective measures to protect consumers from becoming victims of these offences are community vigilance, awareness and continued education. The Australian Government website, SCAMwatch, as well as a number of banking and financial institutions, offers tips to help consumers protect themselves from scams, credit and debit card skimming and identity fraud.

SCAMwatch Golden Rules19

Almost everyone will be approached by a scammer at some stage, but SCAMwatch has put together the following ‘golden rules’ for consumers to protect themselves:

■ If it looks too good to be true, it probably is ■ Use your common sense: the offer may be a scam ■ Always get independent advice if an offer involves significant money, time or commitment

■ There are no get-rich-quick schemes: the only people who make money quickly are the scammers

■ Do not agree to offers or deals straight away: tell the person you are not interested or that you want independent advice before making a decision

■ Contact your local office of fair trading, ASIC or the ACCC for assistance

■ Never send money or give credit card or online account details to anyone you do not know and trust


Feature

■ Check your bank account and credit card statements when you get them; transactions that cannot be explained need to be reported to your credit union or bank

Protect your identity20

In addition to scams, the Australian Competition and Consumer Commission released some guidelines for consumers to avoid having their identity stolen:

■ People that you meet online or casually may not be people you can trust, do not give them personal information like phone numbers, addresses or important confirming evidence like children’s or spouse’s names

■ Identity thieves use all methods to build profiles on people, including rummaging through garbage for records of past purchases, expired credit and other cards, and telephone and utility bills. Destroy these by ripping them up or shredding them before they are discarded

■ Check credit reports from reputable sources. If there are unpaid accounts that are unknown, access the online identity kit (www.crimeprevention.gov.au) for advice about dealing with the problem.

“Identity thieves use all methods to build profiles on people, including rummaging through garbage for records of past purchases, expired credit and other cards, and telephone and utility bills.”

Warning signs and protection against card skimming21

Card skimming is the newest way for scammers to steal a person’s identity, and use those personal details to commit identity fraud. With access to personal information, and more importantly, bank account details, scammers can steal money or take out loans in your name.Be aware if:

■ A shop assistant takes your bank card out of sight to make a transaction

■ You are asked to swipe your card through more than one machine ■ You see your card being swiped through a machine different to the one you used

■ You notice something suspicious or unusual about the card slot on an ATM (such as an attached device)

■ You notice unauthorised or unusual transactions on your account or credit card statements

To protect yourself: ■ Keep your credit and debit cards safe, and do not share your personal identity number (PIN) with anyone. Avoid keeping a written copy of the PIN with the card

■ Check bank account and credit card statements when they arrive, and be on the lookout for any transactions that cannot be explained, which should then be reported to your financial institution

■ Choose passwords that are difficult for any other person to guess ■ At ATMs, take the time to check for suspicious items, and do not use the machine if you suspect it has been tampered with.

Endnotes1. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing

Committee of Attorneys-General, February 2006, p1.2. Smith, RG. & Budd, C. ‘Consumer fraud in Australia: costs, rates and awareness of the risks

in 2008’, Trends & issues in crime and criminal justice No. 382 September 2009.3. Smith, RG. & Budd, C. ‘Consumer fraud in Australia: costs, rates and awareness of the risks

in 2008’, Trends & issues in crime and criminal justice No. 382 September 2009, p3.4. Marron, D. ‘Alter Reality’, Governing the Risk of Identity Theft, Oxford University Press on

behalf of the Centre for Crime and Justice Studies, September 2007, p26, see: http://bjc.oxfordjournals.org.

5. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-328, p306.

6. Blindell, J. ‘Review of the legal status and rights of victims of identity theft in Australasia’, Privacy Law Bulletin Vol 4 Nos 4&5, October/November 2006, pp 58-60, p58.

7. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-306.

8. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-328, p316.

9. Crime and Misconduct Commission, ‘Organised fraud in Queensland – A strategic assessment’, Crime Bulletin, No. 10, October 2009, p1.

10. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing Committee of Attorneys-General, February 2006, p3.

11. Berry, P. ‘Card-skimming devices ‘hard to detect’’, Sydney Morning Herald, 7 April 2010, see: http://news.smh.com.au/breaking-news-national/cardskimming-devices-hard-to-detect-20100407-rrnu.html.

12. 1Berry, P. ‘Card-skimming devices ‘hard to detect’’, Sydney Morning Herald, 7 April 2010, see: http://news.smh.com.au/breaking-news-national/cardskimming-devices-hard-to-detect-20100407-rrnu.html.

13. Tyree, AL. & Sheahan (SC), J. ‘Banking law and banking practice – Contactless cards’, Journal of banking and finance law and practice 21(56), 2010, pp 56-58.

14. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing Committee of Attorneys-General, February 2006, p15.

15. Tyree, AL. & Sheahan (SC), J. ‘Banking law and banking practice – Contactless cards’, Journal of banking and finance law and practice 21(56), 2010, pp 56-58.

16. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing Committee of Attorneys-General, February 2006.

17. Criminal Code Act 1899 (Qld), Chapter 37, Section 408D. 18. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing

Committee of Attorneys-General, February 2006, p11.19. SCAMwatch. ‘How to protect yourself – Golden rules’, see: www.scamwatch.gov.au.20. Australian Competition and Consumer Commission, March 2007, see: www.accc.gov.au.21. SCAMwatch. ‘Card skimming’, see: www.scamwatch.gov.au.


Feature

Children, sport and

the law by Dr Chris Davies

Sport promotes exercise, team work and (importantly) fun, but as with all sports, children’s sport can become hugely competitive and the ‘win at all costs’ mentality can have some pretty big legal ramifications attached to it.Sports law essentially involves the application of the general law to a sporting context, which also means that children in sport may be treated differently by the law when compared to adults.But just how does the law apply to children involved in sport in regard to areas such as contract law, criminal law and torts? How do these laws help protect children participating in organised sport?

Contractual capacity and children It is sometimes difficult to comprehend why young people celebrate when they reach the age of 21 years, when all rights such as voting and the capacity to form contracts, can be legally obtained at 18 years of age. The fact is purely historical. The age where people were considered to have reached their maturity, and afforded the opportunity to make ‘adult’ decisions and embrace full legal rights was at 21 years. However, legislation amended in the mid-20th Century brought the age to 18 years.The age for contractual capacity today is 18 years and a person under that age, even by one day, is considered to lack the capacity to make such a responsible decision, and is considered by the law to be a minor. The rationale fo r applying incapacity to minors is to protect them from the consequences of their own actions, and potential exploitation, due to their immaturity and lack of experience. However, this is not true of all contracts since the law classifies contracts involving minors into two broad categories. The first category is for those things relating to necessaries, employment and education. The second category relates to things that are deemed to be ‘non-necessary’. Necessaries are defined as items that cannot be dispensed with, such as food, drink and clothing, while employment and education are essentially self-explanatory. If a contract falls within the first category then the minor is considered to be bound by the terms of the contract, and therefore liable under the contract. However, if the contract falls into the second category involving non-necessaries then it will be a contract where a minor can choose to either keep the benefits of the contract, or choose not to be bound by it. To illustrate the point is the case involving Les Darcy, a well-known Australian sporting figure due to his boxing exploits around the time of the First World War. Darcy died tragically young while in the United States, having gone there in 1916 to further his career. For this trip he acquired the services of a solicitor named McLaughlin who was asked to try and obtain a passport for Darcy. After Darcy died, McLaughlin successfully sued Darcy’s estate whose defence of the lack of capacity failed on the grounds that the contract for the services of McLaughlin in regard to the passport was one for a necessity, was reasonable and of benefit to Darcy1. Perhaps the area where the issue of contractual capacity and children in sport is most likely to arise is in regard to player

A recent push for more children to participate in organised sports has prompted a closer look at the laws protecting kids as they play.


Feature

agents, as illustrated by Proform Sports Management Ltd v Proactive Sports Management Ltd 2. This case involved Manchester United and England soccer player, Wayne Rooney, who had been recognised as a potential star of the game while still a schoolboy, and at the age of 15 was already playing with another Premier League Club, Everton. Under the Football Association rules he could not sign an actual professional contract until he was 17 years old3. He had signed an agreement with Proform, a player management company, which was to last for two years from 12 December 2000. On 27 June 2002, Rooney sent a letter to Proform advising that he would not be renewing the agreement at the end of the two year period, and in a letter dated the 1 July 2002, stated that he would be signing with another company, Proactive. When Proform sued for breach of contract, it was held that while the contract with Everton fell within the category of contracts that will bind a minor, the contract with Proform did not4. This was due to the fact that Proform did not undertake or address matters essential to Rooney’s living or livelihood, and nor did it enable Rooney to earn a living as a professional footballer5. Children or minors, those under the age of 18 years, are bound by employment contracts, and can be employed to provide services at sporting events, or be taken on as a racing apprentice or a golf trainee. Only if a minor signs a contract that is for non-necessaries can they elect to have the benefit of that contract or, like Wayne Rooney, can they elect not to be bound by that contract.

Torts liability and children The question of torts liability and children involves the examination of two issues:

■ the duties that are owed to children ■ the duties that are owed by children

In regard to the first situation, those professionally responsible for the supervision of children will owe a duty of care to those children, for example in areas such as school sport. This duty is broader than just mere supervision and in Watson v Haines6 for instance, a 15 year old boy with a long, thin neck was selected to play hooker for his school and, after a scrum collapsed and fractured his cervical spine, he became a quadriplegic.While the teachers were held not to be liable7, the Education Department was held to be responsible for the accident as it had been made aware of the potential dangers associated with students built like Watson packing into a scrum and had failed to take reasonable care for the safety of its players8.If an Education Department can be held liable for serious injuries suffered by competitor, what about the various governing bodies of the

football codes played in Australia? This was a question that was raised in Green v Country Rugby League9. Green was a 16 year old who played rugby league for Laurieton United’s reserve grade team in the Country Rugby League’s (CRL) Group Three competition on the mid-north coast of New South Wales. He was selected as hooker for a match against the Old Bar Pirates, a team that had a front row significantly bigger than Laurieton’s. Green himself was described as being slight in build, at around 175cm in height and weighing 57kg. Another significant factor was that he had a neck that was considered to be slightly longer than average. During the match a scrum collapsed which left Green a permanent tetraplegic, with the issue then being whether the CRL was negligent in allowing someone with a long neck to play in the position of hooker. It was held that while the CRL was ultimately responsible for the administration of country rugby league in New South Wales, and therefore owed a duty of care to Green, there had been no breach of that duty for not arranging medical examinations to establish whether a player was suitable to play in the front row or not10. The court also accepted that the accredited coaching system the CRL had in place, and the limited financial resources of the CRL, meant that it had taken a reasonable response to the risk of injuries to players of Green’s physique. Schools, as owners or occupiers of land on which school sport is being played, may also be responsible for injuries suffered by any children using the facility. In Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydney11, for instance, a 14 year old boy injured his knee after stepping into a pothole on the school oval. The school was held liable as a regular inspection by the ground staff was considered both a cost-effective and simple means of preventing such an injury12. However, this duty involves no more than what any owner/occupier would be liable for, and in Williams v Latrobe Council13 the council was similarly held liable after an Australian footballer badly hurt his ankle after stepping into a sprinkler hole during a men’s competition match.In relation to duty owed by children, a child is generally responsible for the consequences of their wrongful acts. However, the degree of liability required of a child requires the age of the child and the level of maturity for a child of that age to be considered when examining the standard of care. To some extent, the child’s state of mind is also a consideration, as a young child may be aware of what he or she is doing and even know that the action is wrong, but may lack the foresight to consider the consequences of his or her action. In McHale v Watson14, for example, a 12 year old boy threw a metal dart at a post but the dart rebounded off the post and caught a nine year old girl in the eye. The boy was not found to be liable for the incident as it was

Child

ren,

Spo

rt

and

the

Law


Feature

deemed that a 12 year old boy lacked the capacity to foresee that the dart might not stick to the post and could glance off and hit someone.However, the closer a child is to adulthood, the more the standard of care will resemble that expected of an adult. In Leydon v Caboolture Shire Council,15 15 year old Scott Leydon was injured while riding his BMX bike on a council-owned track. He had been riding on the track for a number of years and was therefore familiar with it. The council raised the defence of the volenti non fit injuria, (the voluntary assumption of risk) and it was noted by the Court that while Leydon was at an age where the degree of maturity can vary significantly between individuals, it was still an important factor for consideration. Leydon was considered to be ‘sufficiently able to assess the risks for himself’16, and he was fully aware of the risk, had voluntarily incurred it, and although he was not an adult he was still ‘sufficiently mature to justify the success of the defence’17. What the cases indicate is that under contract law, capacity is based on the exact age of 18 years. Under tort law, age is a factor that should be considered, but there is no exact age where the person is considered to be an adult and therefore decisions are based on the maturity level of the individual concerned. In criminal law, the position is perhaps best described as being somewhere between the contract law situation and that found in torts.

Criminal law, responsibility and childrenWhere children face criminal charges after violent acts on a sporting field, the doctrine of doli incapax will apply. What this doctrine means is that a child under the age of 10 years is not considered capable of committing a crime, while under s29 of the Criminal Code 1899 (Qld) a child under the age of 14 years is not considered criminally responsible for any act or omission, unless it can be proved that the person has the capacity to know that they should not have done the act or omission. This means that with such a child, the prosecution must prove the elements of the offence, and also demonstrate that the child understood that he or she was doing something wrong. Like contract law, there are definite ages recognised by the criminal law, but as with torts, the characteristics of the individual concerned also needs to be taken into account.

Discrimination and children Before the age of around 12 years it has been argued that from a physical strength perspective, little difference exists between boys and girls which is why usually both genders are entitled to compete in each other’s sporting events. A girl can play football or cricket in boys’ competitions while boys can also play in girls’ netball competitions. However under the Anti-discrimination Act 1991 (Qld), a person is allowed to be excluded on the grounds of gender from participating in a competitive sport if it is an activity in which strength, stamina or the physique of competitors is relevant.The Victorian case of Taylor v Moorabbin Saints18 examined the question of when children should be prevented from participating in sport organised for the other gender. In this case two girls were excluded from playing in an under 15 boys Australian football competition, and one from an under 14 competition. It was held that the relative differences in strength, stamina and physique between the sexes in the under 15 competition was sufficiently significant19, which meant it was lawful for girls to be excluded from the under 15 competitions20. However, it was also held that it was unlawful to exclude girls from the under 14 competition as the physical differences were not yet significant21. Similarly, in Robertson v Australian Ice Hockey Federation and Victorian Ice Hockey Association22 it was not unlawful discrimination to prevent a 15 year old girl from playing in a boys’ ice hockey competition. The girl sought to play in the position of goalie, but was refused on the grounds that comparative strength, stamina and physique were relevant to the game and she would be at serious risk of injury.

Child protection legislation Various areas of law will provide protection to children. However, it has been over the last decade that the enactment of specific legislation aimed at the general protection of children has taken place. These include the Child Protection Act 1999 (Qld), and the Child Protection (Offender Reporting) Act 2004 (Qld) which requires those who have committed sexual and other serious offences against children to keep police informed of their whereabouts. In Queensland, a Commission has been established under the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Under this Act employees and volunteers in sport and recreational activities must obtain a Blue Card. Blue Cards are issued by the Commission for Children and Young People and Child Guardian to see if a person is eligible to work in the areas of child-related work covered by the Act. The only exception is for volunteers whose own children is competing in that sport or recreational activity. These Acts acknowledge that children, including those involved in sport, can be placed in vulnerable position and hence need to be protected.

Conclusion Sport is played by people of all ages, including children, and is also an area in which the law is increasingly involved. When examining contract, criminal and tort laws, it is clear that there is some modification in how the legislation is to be applied to children. This provides appropriate protection to children, and takes into consideration the lack of maturity and therefore the responsibility that should be placed on children. The particular situation involving children is also reflected in various discrimination and protective statutes. Therefore, children and the law can be said to be a distinct area of sports law.

Endnotes1 McLaughlin v Darcy (1918) 18 SR (NSW) 585 at 592. 2 [2007] 1 All ER 542.3 Ibid at 550. 4 Ibid at 555. 5 Ibid at 556. 6 [1987] Aust Tort Reports 80-094. 7 Ibid at 68, 558. 8 Ibid at 68,572-3. 9 [2008] NSWSC 26 10 Ibid, [146]. 11 [2005] NSWCA 457. 12 Ibid at [57]. 13 [2007] TASSC 2 at [69]. 14 (1965) 115 CLR 199. 15 [2007] QCA 134. 16 Ibid at [40]. 17 Ibid at [42]. 18 Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd [2004]

VCAT 158. 19 Ibid at [75]. 20 Ibid at [82]. 21 Ibid at [82]. 22 Unreported, ADTVIC, No 207 of 1997.

Private eye...

But just what is a Justice of the Peace?

They appear in shopping centres, at court houses, and sometimes in council libraries, providing legal services to the community at no charge.


Regular feature

by Calista Bruschi

As defined by the Department of Justice and Attorney-General on their website, a Justice of the Peace (JP) is an entrusted citizen who takes on special responsibilities within the legal system for the benefit of their community.The position of a Justice of the Peace is honorary, which means that no payment is received for the services carried out in the position. In the past, people were appointed to the position of a JP because of their standing in the community; they were honest citizens who could be relied upon to carry out their duties conscientiously. Their assistance in the legal system alleviates many of the pressures faced by lawyers and the over-stretched courts, as JPs focus on routine matters and lawyers and the courts are freed to concentrate on cases requiring professional legal training. A Justice of the Peace, while not required to have a formal education in the law, must have a basic understanding of the legal system. JPs are now offered training to allow them to carry out their necessary duties.There are three categories for Justices of the Peace, and each category allows a JP to choose the level of responsibility they wish to take on.Commissioners for Declarations (C.dec) have purely administrative duties. The category includes Justices of the Peace (Commissioners for Declarations), abbreviated as JP (C.dec), and their duties are:

■ witnessing signatures on documents ■ certifying true copies of documents.

Justices of the Peace (Qualified) have the same duties as C.decs, but are also able to:

■ issue search warrants ■ remand defendants (returning defendants to custody until their case can be heard)

■ adjourn court hearings ■ grant bail.

Justices of the Peace (Magistrates Court) have the same duties as JP (Qual), as well as:

■ being able to conduct committal hearings ■ hearing simple offences where the defendant has pleaded guilty.

Anyone can become a Commissioner for Declarations or a Justice of the Peace so long as the eligibility criteria are met, which is:

■ you are an Australian citizen by birth, descent or grant ■ you are at least 18 years of age

■ you are of good character ■ you are registered on the State electoral roll.

Criminal history or traffic offences, such as speeding fines, must be disclosed on a person’s application form, even if the incident/s happened a long time ago. The Registrar of Justices of the Peace and the Commissioners for Declarations considers this information when assessing suitability for the role.The procedure for application to the role of a Justice of the Peace differs depending on the category chosen. For example, for a C.dec application forms are obtained from the local State Member of Parliament, and once completed are returned to the Registrar of Justices of the Peace and Commissioners for Declarations. There is no exam and no formal training required. However, the role of Justice of the Peace (Qualified) involves an exam that must be passed before an application form can be submitted. Further information about Justices of the Peace can be obtained from the offices of each State Parliament Member in Queensland, and the Justices of the Peace Branch within the Department of Justice and Attorney-General, justice.qld.gov.au.


Regular feature

Interview with Melanie Thrupp1. There are three categories for Justices

of the Peace, which category do you fall into?I am a Justice of the Peace (Qualified).

2. How long have you held the position?I studied for the exam during high school. I believe our school, Clontarf Beach State High School, was the first in Queensland to offer a study group for JP training to its high school students as an extra-school activity. I completed the competency exam and was qualified to become a JP when I was 17 years of age. However, I had to wait until I was 18 years to be formally accepted into the role, which means I have been a fully-fledged JP for about five years now.

3. What attracted you to the role of a JP, especially at such a young age?Being a Justice of the Peace is a huge responsibility and I feel that I have a strong personality, coupled with the maturity to handle this role within my community. I was very academic during my school years and I accepted any extra activities offered to me with open arms. At the end of the day I knew that such a role would appeal to most prospective employers (especially for someone of my age) and it would show my ability to handle responsibility and an eagerness to be proactive. My aim in life has generally been to excel in all tasks given to me and to exceed expectation.

4. What sort of activities have you had to deal with in your role as a JP (Qual)?The most common part of my role is certifying true copies of documents, followed closely by witnessing signatures on documents (e.g., contracts, lease documents, statutory declarations, advanced health directives etc). There are plenty of other aspects to my role, such as issuing search warrants, adjourning court hearings and granting bail, but I haven’t been asked to deal with any of these yet.

5. What is your current job?I work for an accounting practice based in Brisbane’s Fortitude Valley. My role is currently a dual position – Administration Manager and Personal Assistant to the Managing Director. It can be quite demanding, but I enjoy the challenges and fast pace afforded by small business. The positive influences of my colleagues have contributed to both my personal and professional development.

6. Given that the role of a Justice of the Peace takes on responsibilities within the legal system, did you ever consider a career in law?I did consider that path for quite a while. My first ‘real’ job – out of high school – was working with the Queensland Law Society (a position I was encouraged to apply for by my high school Legal Studies teacher). I worked mostly within their events

department for almost three years, and it was a real eye opener and a great stepping stone. It taught me a lot about myself and it helped me develop my knowledge into real life skills. I believe that most professional sectors help you develop the fundamental skills needed to be able to cross over if you choose to change career path. A career in law still isn’t completely off the cards, but at the moment I am happy where I am, doing what I am doing. It is rewarding to leave the office each day knowing I have accomplished something, and I feel it is important to find a job that fulfils. A career in any industry requires drive and passion.

7. What do you consider to be the biggest value of your role as a Justice of the Peace?The role of a Justice of the Peace is important to the justice system. We help with matters that free up lawyers and allow them to deal with other issues instead of getting caught in the paper trail. JPs focus on the finer details of crossing the t’s and dotting the i’s. Our volunteer services allow the Courts to focus on more important issues like prosecuting the ‘bad guys’. When you educate the community on the importance our legal system has for society, we can all do our part to help ensure justice is met.

Break down the wall to learning about the law

PublicationsFact sheets

Useful links and resourcesEvents and competitions

visit sces.qls.com.au

In 2003, The Verdict published an article examining the use of salary caps in Australia’s professional team sports.1 Since then, salary caps have continued to be used. However, the recent exposure of Melbourne Storm’s breaches of the National Rugby League (NRL) salary cap has highlighted that the enforcement of a salary cap can be problematic for sport governing bodies.

Why the NRL has a salary capThe present day National Rugby League (NRL) has its origins in the Sydney-based competition run by the New South Wales Rugby League (NSWRL). It then evolved into a more national competition, initially run by the Australian Rugby League (ARL), and then by the NRL. The NSWRL first introduced a salary cap in 1990, along with a draft system for player selection, though the draft system was successfully challenged by the players.2

During the Super League war when News Limited and the ARL tried to attract the best players by offering high wages, well beyond the revenue being generated, the salary cap was dropped. The NRL was formed in 1998 after a compromise was reached between News Limited, which was running and financially supporting Super League, and the ARL. Two years later a salary cap was introduced to help create a more even, financially more stable, competition which is recognised by the courts as being a legitimate objective for a league.3 While assessing whether a salary cap has actually created a more even competition is a fairly subjective process, it can be suggested that it has achieved its purpose, based on the diversity of teams making the finals, grand finals and attaining premierships, over the last ten years. However, the Canterbury Bulldog salary cap breach scandal in 2002 and the recent Melbourne Storm salary cap breach in the early part of the 2010 NRL season competition have shown clubs may be willing to breach the salary cap rules.

What was involved with the Melbourne Storm scandal On the afternoon of Thursday 22 April 2010, NRL chief executive, David Gallop, and News Limited’s chief executive, John Hartigan, conducted a television news conference at which it was announced that reigning premiers, the Melbourne Storm, had been involved in systematic breaches of the salary cap over a five year period. This had been achieved by having two sets of contracts - the official ones which showed the Melbourne Storm keeping to the salary cap, and a second contract kept in a separate storage that reflected what the players were actually being paid. When the Melbourne Storm won the 2009 premiership, it was estimated the club was approximately $400,000 over the salary cap, and around $700,000 over the cap for the 2010 season. Overall, the extra payments were estimated to be around $1.7m for the five year period.4 It was recently reported that the club breached the salary cap by $3.17m between 2006 and 2010. Two times higher than initially predicted by owner News Limited.The breaches have been described as ‘illegal salary cap breaches’ but that is not entirely

accurate, since what was involved only breached the NRL rules, which are not really laws as such. In fact, it is more likely that that the salary cap itself is illegal since, like all labour market controls in sport, it may be considered by a court to be an unreasonable restraint of trade. However, given that it has been successful in creating an even competition, a legitimate objective of the NRL, it is a valid, reasonable restraint of trade. An interesting aspect of the Melbourne Storm scandal is that there has been no mention of the National Rugby League salary cap being challenged, and the legal challenge has been brought on the basis that the NRL did not follow its own rules in reaching its decision by not allowing the Melbourne Storm sufficient time to prepare its reply to the allegations. At the 22 April press conference, David Gallop had outlined the penalties imposed on the Melbourne Storm, which were undoubtedly the harshest ever imposed in Australian team sport.

The NRL penalties and why they had to be implemented The penalties imposed on the Melbourne Storm by the National Rugby League were as follows:

■ Loss of the 2007 and 2009 premierships; ■ A fine of $500,000; ■ The repayment of $1.1 million in prizemoney;

■ Loss of all competition points already accumulated for the 2010 season;

■ Inability to compete for competition points for the remainder of the 2010 season;

■ Requirement to not only get under the salary cap for the 2011 season but must also, to some extent, disband the side.

So, why did the NRL impose such harsh penalties, and was the NRL justified in imposing them? Of the penalties, the harshest was the decision to strip the Melbourne Storm of the premierships won in 2007 and 2009 when it beat Manly and Parramatta respectively. Given the extent, and the deliberate nature of the breaches, it was impossible for the NRL


Feature

The Melbourne Storm salary cap scandalby Dr Chris Davies

Chris Davies is a Senior Lecturer at the School of Law, James Cook University. He has PhD from the Faculty of Law, University of Sydney. Chris has published papers in the area of restraint trade and other areas of sports law, and presented conference papers in sports law.

to allow Melbourne to keep the titles, since it would have been totally unfair on the other clubs which had stayed under the salary cap. The Brisbane Broncos, for instance, are one club which lost players such as Petero Civoniceva because of salary cap problems, yet are one of the few clubs in the NRL that could probably pay its players more than the present salary cap. However, the NRL also decided not to award the premierships to Manly and Parramatta which is also considered the right decision for a competition format where not all the teams play each other in the finals series. Thus the teams beaten in the Preliminary Finals in both years were arguably just as affected as the teams that lost the Grand Finals. As a hypothetical comparison with the Australian Football League (AFL), there were some suggestions after Ben Cousins’ drug suspension, that maybe the West Coat Eagles should have had its 2006 Premiership taken away and awarded to the Sydney Swans which had lost the Grand Final by one point. While firstly there was no evidence Cousins had been taking any drugs that might have enhanced his performance in the Grand Final, the other issue was that the team West Coast beat in the Preliminary Final, the Adelaide Crows, were in the middle of a winning streak against the Sydney Swans in which it won eight of ten games. Thus, if there had been an issue with the West Coast Eagles, the Adelaide Crows were just as affected as the Sydney Swans. What the Manly and Parramatta supporters have to accept then is that while in a ‘first past the post competition’ there is no problem in giving the runners up the title, should the first-placed team be disqualified, it is not really feasible in a play-off system as used by the NRL. In regard to the fine and loss of prize money, the $500,000 fine had to be imposed to act as a deterrent to other clubs which in the future may contemplate deliberately breaching the salary cap. The prize money the Melbourne Storm received during the five year period in which it was deliberately breaching the salary cap also had to be returned, as it was simply not fair on the other clubs for it to retain this money. The reason why Melbourne Storm was also not allowed to keep points it had already won in the 2010 season, and not compete for points in the rest of the season, was because the club was still over the salary cap for this season. Even when the Melbourne Storm and the players indicated that they would be willing to take pay cuts in order to allow the club to get under salary cap, the NRL would still not allow it to compete for points.5 The reason for this is that the Melbourne Storm would still have the team it had acquired while in breach of the NRL rules, even if subsequent pay cuts brought the club within these rules. In addition to this, the NRL is also aware that when the Canterbury Bulldogs was found

to be in breach of the salary cap in 2002, it was docked of all its points in that season, but it was allowed to keep all its players, and subsequently won the NRL Grand Final in 2004. To ensure this scenario is not repeated in the case of the Melbourne Storm, the NRL has imposed that the team must be disbanded to some degree at the end of the season.

Should the NRL retain a salary cap? The Melbourne Storm scandal has highlighted that it can be difficult for clubs to enforce a salary cap, and that this club was willing and seemingly able to pay the players more than they were allowed under the salary cap. It then raises the question as to whether or not the National Rugby League should abandon its salary cap. Breaches of a salary cap can be difficult to detect, but what the 2002 Canterbury Bulldogs and now the Melbourne Storm have shown is that, given time, they are likely to be uncovered. What is required when breaches are discovered is harsh penalties, and the NRL has shown that it is willing to do that by not only imposing fines and removing points, but by stripping premierships off winning teams who have been found to deliberately and systematically breach the salary cap. It has also indicated that it will also increase the number of people employed to monitor the salary cap which will also help to enforce it in future years. As to whether the salary cap should be abandoned in order to allow a team like the Melbourne Storm to pay players what it wants to, rather than being restricted by a salary cap, it should be noted that it requires around $8 million annually from News Ltd, who owns the Melbourne Storm, in order to survive financially.6 What this shows is that the Melbourne Storm does not generate enough income to pay players within the salary cap, let alone well beyond it. While there are suggestions that the NRL is hopeful of increasing the salary cap substantially in two years time, this is dependent upon it receiving significant increases in income from television rights which will be up for renewal

at that time. This illustrates that one of the reasons why a competition like the NRL has a salary cap is to maintain financial stability by limiting player payments to revenue. With that in mind, the NRL will likely retain its salary cap, despite the problems with the Melbourne Storm, with support from the chief executives of each of the clubs.7

Conclusion While the Melbourne Storm salary cap breach has highlighted the difficulty club’s face in enforcing the rules, the harsh penalties imposed by the National Rugby League should serve as a deterrent to other clubs. The legal challenge to this decision is based on the process undertaken by the NRL in dealing with the salary cap breach, and not that the salary cap represents an unreasonable restraint of trade. The salary cap appears to have become an integral part of how the NRL operates, and is likely to remain for the foreseeable future.

Endnotes1. Chris Davies, ‘Contemporary Issues in Sports Law: the

Salary Cap’, (2003) 7 The Verdict 20-23. For a more in depth discussion see Chris Davies, ‘The Use of Salary Caps in Professional Team Sports and the Restraint of Trade Doctrine (2006) 22 Journal of Contract Law 246-247.

2. Adamson v New South Wales Rugby League (1990) 27 FCR 535.

3. See Adamson v New South Wales Rugby League (1990) 27 FCR 535 at 561; Buckley v Tutty (1971) 125 CLR 353 at 377.

4. Dean Ritchie, ‘NRL caught in Storm of cheats,’ The Daily Telegraph, 23 April, 2010 at 2.

5. Phil Rothfield, ‘Let the Storm start again on zero,’ The Sunday Telegraph, 25 April, 2010 at 46.

6. Brad Walter, ‘More questions raised about News Ltd’s involvement, The Sydney Morning Herald, 23 April at 30.

7. Brad Walter, ‘CEO meeting should look back to go forward’, The Sydney Morning Herald, 3 May, 2010 at 24; Stuart Honeysett, ‘NRL is second rate, says players,’ The Australian, 5 May, 2010 at 48.

scandal!


Feature


Breaking news

ACCC proposes to allow freelance journalists to collectively negotiate with publishersThe Australian Competition and Consumer Commission (ACCC) announced it has issued a draft determination proposing to grant authorisation to the Media Entertainment and Arts Alliance to collectively negotiate the terms of engagement of freelance journalists with Fairfax Media Limited, ACP Magazines Ltd, News Limited and Pacific Magazines.

The MEAA proposes to negotiate minimum rates of pay, freedom to contract with other media organisations, and other contractual terms such as copyright and moral rights.“While the publishers have not supported the application, under the proposed authorisation they remain free to choose whether to negotiate with the MEAA or deal with journalists individually,” ACCC chairman Graeme Samuel said.In addition, MEAA members may opt out of any collective agreement and negotiate individually with the publishers. The proposed authorisation does not extend to a collective decision by freelance journalists to boycott a publisher if it refuses to take part in collective negotiations or for other reasons including a failure to reach a collective agreement.The proposed authorisation simply removes the legal risk under the competition provisions of the Trade Practices Act 1974 to the MEAA and participating members if they were to engage in collective negotiations with the publishers. – FindLaw News, April 2010

Is the burqa ban a breach of religious rights?

The Australian Lawyers Alliance (ALA) seems to think so. After South Australian Senator Cory Bernardi called for the banning of burqas across Australia, the ALA issued a release stating that such a move is a breach of religious freedom and a prime example of why Australia needs better human rights protections.ALA director, Mr Greg Barnes said everyone should have the right to express their religious beliefs, not just politicians who were known to parade their faith before the media to shore up votes with the politically dominant Christian culture.“The government has said that introducing a federal human rights Act would somehow divide the community when really, what it would do is unite it,” Mr Barnes said.“On his blog site, Mr Bernadi also commented that banning the burqa would strengthen women’s rights but this is not necessarily the case. Some women may confine themselves more to their homes because they don’t want to go against the conventions of their religion.”Rather than empower these women, Mr Barnes feels that women who wear burqas will feel more social exclusion, and said that they only way to truly improve the status and respect of women was through education and community engagement. – Media release, May 2010

In the news...


Breaking news

Review of discovery laws to improve access to justiceThe Australian Law Reform Commission has been requested to undertake a review of access to civil justice in the federal system after the Access to Justice Taskforce report A Strategic Framework for Access to Justice in the Federal Civil Justice System identified the high cost of discovery.Federal Attorney-General Robert McClelland has asked the ALRC to identify law reform options to improve the practical operation and effectiveness of discovery documents, which will include collaboration and consultation with key stakeholders in the courts and the legal profession. It is expected that the review will be concluded in March 2011. -- http://www.alrc.gov.au/inquiries/current/discovery/terms.html

When good neighbours become good friends

New laws have been drafted to make it easier for neighbours

to avoid disputes before they escalate and end up in court. The

Neighbourhood Disputes Resolution Bill 2010 has been tabled

in parliament and aims to modernise Queensland’s 60-year-

old authority, the Dividing Fences Act 1953. Should the bill be

passed, key changes will include:

■ definition that ownership of a dividing fence on a common

property is to be shared equally

■ introduction of the Queensland Civil and Administrative

Tribunal (QCAT) as the authority to make orders on disputes

about trees and fences

■ introduction of the ‘Notice for contribution to fencing work’

and the ‘Notice for overhanging branches’ forms

■ distinction between a retaining wall and a fence

■ clearer rules for pastoral and agricultural fences

New role for CMC investigating deaths in police custody

The Crime and Misconduct Commission will be primarily responsible for investigating all deaths in policy custody under its official misconduct jurisdiction. CMC Chairperson Martin Moynihan AO QC announced that as Queensland’s specialist misconduct and anti-corruption body, the CMC will investigate deaths while assisting the State Coroner who has the ultimate responsibility for the investigation of the death.“The decision to take over the role from the Queensland Police Service follows the recent findings from the inquest into the death in custody of Mulrunji Doomadgee on Palm Island,” Mr Moynihan said. – Media release, May 2010


Feature

Around 43 percent of Australian children from birth to the age of 12 years are in some form of child care, with 22 percent of those attending formal child care services. Long day care is the most common type of formal service attended.2 Parents and guardians entrusting their young children to child care services want to ensure their offspring receive high quality early childhood education and care and have the best opportunities for social, cognitive and emotional development. The child care industry not only plays an important role in a child’s early education, it also contributes to the Australian economy by enabling parents to participate in work and study. In addition, over 100,000 people across Australia are employed in the child care industry.3

The formal child care industry4 is subject to legislative and administrative oversight by the Commonwealth Government and state or territory governments. State and territory governments are responsible for licensing child care services and establishing, and ensuring compliance with, regulatory standards and obligations. In Queensland, the regulatory framework is provided by the Child Care Act 2002 (Qld) and the Child Care Regulation 2003 (Qld). For parents to be able to claim the Commonwealth Government’s Child Care Benefit, the service must participate in the Commonwealth Government’s quality assurance systems that overlay state or territory legislative requirements. A nationally consistent regulatory framework (the National Quality Framework) will be established from 1 January 2012 for child care services throughout Australia, with changes to be rolled out over several years. It is therefore timely to consider the current regulatory

environment for child care services operating in Queensland before discussing the new National Quality Framework which will gradually replace existing licensing and accreditation processes.

Queensland child care servicesAround 42 percent of Queensland children aged 0 – 12 years are in some type of child care; most (25 percent of the 42 percent) attending formal child care services.5

In Queensland, child care services that regularly provide care for seven or more children for reward must be licensed. The types of licensed child care services operating in Queensland are:

■ Centre based services: child care services not provided in a home and include: - long day care: centres providing care for larger groups of children

and generally operating for at least ten hours a week for at least 48 weeks each year limited hours care: centres providing care for smaller groups of children (up to 30 children) for a maximum of 20 hours a week

- occasional care - kindergartens: centres providing care for children in the year prior

to Prep (the child must turn four years old by 30 June in the year in which he or she attends kindergarten) for a minimum of 15 hours a week and for at least 40 weeks of the year6

- school age care: centres providing before and/or after school care or before and/or after school care and/or vacation care for children but not those providing just vacation care

Child care in Queensland:Towards a national quality framework1

by Nicole Dixon

Nicolee Dixon is the Senior Research Officer at the Queensland Parliamentary Library. Nicolee has a BA and LLB (Hons) from the Australian National University and an LLM from the Queensland University of Technology


Feature

■ Home based services: child care services provided for seven or more children in one or more private homes of carers (commonly known as ‘family day care’). Central coordination units organise and support a network of carers.

A person can conduct a stand alone service in his or her home or another place (e.g., a church) for a maximum of six children from birth to 12 years, of which no more than four are not yet school children. The service is subject to the Child Care Centre Act 2002 (Qld), but does not have to be licensed.7

A number of care services are not ‘child care services’ and are not covered by the Act. Examples include services providing primary, secondary or special education; services principally conducted to provide residential care, therapeutic services, instruction in an activity, tutoring or coaching etc; or recreational activities. It also does not include unpaid care by relatives or guardians.During the year 2008-2009, the Queensland Department of Education and Training’s Annual Report noted there were 2,547 licensed child care services in Queensland, including 596 school age care services, 84 home based services, and 1,876 centre based services.Currently, the Commonwealth Government has formal quality assurance systems in place for child care services complementing and building upon the licensing regime and regulatory requirements operating in each jurisdiction. Financial assistance is provided to families who use Commonwealth approved/accredited child care services. However, for eligible parents of a child in child care to be able to claim the Child Care Benefit, the service must be licensed (under state or territory legislation) and must have been through the Commonwealth Government’s approval and accreditation process. An ‘approved child care service’ is long day care, family day care,8 outside school hours care, occasional care or an in-home care service that has been approved for the purpose of the Commonwealth Government’s Child Care Benefit. The service must meet relevant standards and requirements to be approved. An ‘accredited child care service’ is one that complies, or is working towards compliance, with the Commonwealth Government’s quality assurance system. The quality assurance requirements seek to build upon state and territory licensing requirements. The three types of services that must have accreditation as a condition of approval for Child Care Benefit purposes are long day care, family day care, and outside school hours care. Assessments for compliance with the quality standards are undertaken periodically by way of ‘spot visits’ by the National Childcare Accreditation Council (NCAC), an independent body funded by the Commonwealth Government.

Licensees have an overriding obligation to conduct the care

service in a way that has sufficient regard to the guiding principl es in

the Act, especially in a manner that ensures the

safety and well being of the children

concerned.

National Quality Framework reformsThe Council of Australian Governments (COAG) agreed upon a new National Quality Framework (NQF) for early childhood education and care and outside school hours care at its December 2009 meeting.9 The NQF will be fully in place from 1 January 2012, replacing the diverse range of licensing and regulatory requirements of each state and territory with a unified national system. It seeks to deliver a nationally consistent higher standard of care for children and provide more information for parents about available service options.10 Some aspects of the new National Quality Standard were rolled out from 1 July 2010, with full implementation from 1 January 2012. From that date a jointly governed national quality system will monitor long day care, family day care, kindergarten and outside school hours care.The NQF is intended to replace the current licensing and accreditation processes undertaken by each state and territory, and overseen by the NCAC, meaning that child care services will interact with just one regulatory body rather than several.11 A national body will guide the management of the NQF and Victoria will be the lead jurisdiction for the national legislative framework.12 The Child Care Act 2002 (Qld) will be reviewed to enable the implementation of the new national standards in Queensland.

Licensing of child care services in QueenslandCurrently the Queensland Child Care Act 2002 requires centre based and home based child care services in Queensland to be licensed. Operating such a service without a licence is an offence and can attract a fine of up to $10,000 for a first offence (by an individual) Licences for centre based and home based

child care services last up to three years, and can be renewed. They can also be transferred or surrendered, or they may be amended, suspended or revoked.13 A three-month provisional licence can be issued in circumstances where there are minor matters to be resolved within that time, and a licence will be granted once this has occurred.In deciding whether or not to issue, renew, amend, suspend or revoke a licence, or to impose conditions on it, the chief executive is required by the Act to consider a number of matters:14

■ the Act’s guiding principles, including making the child’s best interests the paramount concern as well as ensuring that child care services are provided in a way that protects children from harm, respects their dignity and privacy, promotes wellbeing, provides positive experiences and meets children’s other needs

■ the suitability of the licensee/applicant (including possession of a ‘Blue Card’ that allows a person to work with children)

■ the safety and suitability of the child care centre and related facilities

■ the culturally-specific needs of children where the child care service is to be principally within an Aboriginal or Torres Strait Islander community

■ other matters as set out in the Act, such as the number of children to be cared for, their ages, length of time care is provided, number of carers, and available space.

The licence must be displayed in a prominent place at the service.Licences can be subject to conditions. For a centre based service, a condition stating that the maximum number of children to whom care can be provided at any one time must be included in the licence. The maximum licensed capacity for such services, other than school age care services, is 75 children (but can be set at greater than 75 for no more than two hours per day in certain circumstances). For home based care, there must not be more than seven children at the home and no more than four of these are allowed to be non-school children unless exceptions apply (e.g., where the carer is the parent of the school children being cared for; or children who are 12 years or older are not being provided with care). Breaches of these requirements are offences.A key component of the NQF will be streamlined regulatory arrangements where states and territories will be responsible for administration and regulation of the new National Quality Standards overseen by a new national body, and all jurisdictions will establish mirror legislation. Services will therefore only need to meet one set of regulatory requirements. All services will be required to obtain approval to operate. Approvals for centre based services will be issued once and will allow those services to operate in a number of jurisdictions.


Feature

Requirements for Queensland child care servicesUnder the new NQF, various changes to group sizes, staffing numbers, staff to child ratios, general operational requirements and standards, and information provisions will be phased in and services covered by the NQF (long day care, kindergarten and family day care services) will be assessed against a National Quality Standard. Staffing and staff to child ratiosCurrently, centre based care services (apart from school age care) must comply with ‘standard requirements’ as set out in the Child Care Regulation 2003 (Qld) and penalties are set out for non-compliance. Children must be cared for in groups and the Regulation sets out the maximum numbers in each, age restrictions, minimum number of qualified staff and staff to child ratios. A qualified group leader must be in charge of each group at most times the service is being conducted, and the number of carers per group must comply with the specified staff to child ratios. A director must also be present at the centre at the specified times and at least one staff member must have first aid competency. For school age care, among other ‘standard requirements’, the Regulation provides that there must be at least one carer for every 15 children, and at least one qualified assistant for every 30 children. The Act also specifies that at least two adult staff members must be present; or one present and the other able to be quickly called upon. Home based services must engage only adults as carers and carers must have prescribed first aid competency. The carer to child ratio must not be greater than 1:7 (no more than four are not yet school children). Home based services must also have coordinators to ensure the service is properly conducted and, among other things, coordinators monitor the standards of care being provided.Under the National Quality Framework, new staff to child ratios for long day care, kindergarten and family day care services will

be phased in from 1 January 2012, so each staff member will have fewer children to care for.Conduct of the service generallyLicensees have an overriding obligation to conduct the care service in a way that has sufficient regard to the guiding principles in the Act, especially to do so in a manner that ensures the safety and wellbeing of the children concerned. From July 2010 through to January 2012, the new NQF will introduce a new National Quality Standard against which long day care, family day care and outside school hours care services will be assessed and rated. Licensees of centre based services must meet a number of requirements about the general conduct of the service and the standards of the building and facilities (e.g. cleanliness, safety, hygiene). Home based services also have various obligations of this type imposed. Centre based service licensees must also ensure that care is provided under an appropriate program designed to stimulate and develop each child’s creative, emotional, intellectual, lingual, physical, recreational and social potential. The Regulation imposes relevant obligations about programs in relation to their content, their requirements, and program planning and development. A notice with general information about the program must be on display for parents/guardians. Home based services must also provide activities and learning experiences designed to stimulate and develop each child.Written policies about the conduct of the child care service, addressing matters such as:

■ participation of parents, students, volunteers and others in the conduct of the service

■ hygiene practices and dealing with injuries, illness and infectious diseases

■ safety, emergency and evacuation procedures

■ procedures for dealing with parent/guardian, staff, carer concerns

■ monitoring of staff progress throughout

their child care qualification studiesmust be prepared and up-to-date and available to be given to parents/guardians on request.15

The National Quality Framework will implement a new transparent quality ratings system to provide a nationally consistent indicator of service quality to parents/guardians. This seeks to allow an easy comparison to be made about whether services are meeting the National Quality Standard. Approval and ratings information must be prominently displayed by each service and will also be provided online. The rating descriptions will be: Excellent, High Quality, Meeting the NQS, Operating towards meeting Requirements, and Unsatisfactory.16 The National Quality Standard will assess the performance of a service against educational program and practice, health and safety, physical environment, staffing ratios and qualifications, relationships with children, collaborative partnerships with families/communities, leadership and management.17 At present, work is being done, with the assistance of expert consultants, to develop the assessment and rating process. The first action under the NQF is the assessment against the NQS of a small number of child care centres which volunteer to participate.18

Qualifications of carersCurrent legislation requires child care workers in centre based services and coordinators of home based services to be appropriately qualified. As a guide, in centre based services:

■ Assistants (other than in school age care) need to hold a Certificate III or IV in an area of study applying to child care workers under the Australian Qualifications Framework (AQF), or a one year qualification (tertiary level) in early childhood studies of child care studies. School age care service assistants must possess a certificate III or IV in community services or a one year qualification in a relevant area of study,


Feature

which includes nursing, physiotherapy, human welfare studies and services, behavioural science, sport and recreation or creative arts.

■ Group leaders must possess prescribed group leader qualifications, being a diploma in an area of study applying to child care workers, or a two year qualification (tertiary level) in early childhood studies or child care studies. In school age care, a group leader must have a diploma in community services under the AQF or a two year qualification in a relevant area of study as outlined for assistants working in school age care.19

■ Adult staff members can be directors of a centre based service if they have an advanced diploma in an area of study applying to child care workers, or at least a three year qualification (tertiary level) in early childhood studies or child care studies, or a postgraduate qualification that is at least a one year qualification in early childhood studies or child care studies.20

No formal qualifications are required for being a carer in a home based care service, but carers must participate in professional development through a family day care scheme. Those schemes are organised by the coordinator of home based services who is an adult staff member of the service holding an appropriate early childhood or approved related area qualification. Those qualifications can be any of: a diploma in an area of study applying to child care workers, or a two year qualification in early childhood or child care studies, or a director’s position qualification (see above), or a diploma in community services, or a two year qualification in a relevant area of study. Under the NQF, improved staff qualifications will be phased in over a number of years. These improved qualifications are designed to achieve better outcomes for children in terms of greater understanding of health and safety issues and ability to lead activities assisting in children’s learning and development.21 As an example, by January 2014, staff in long day care and kindergarten services will need to have at least a Certificate III in early childhood education and care.

Compliance and enforcement The Child Care Act 2002 (Qld) contains provisions enabling various actions to be taken by authorised officers of the Queensland Office for Early Childhood Education and Care (OECEC) against licensees who fail to meet their licensing obligations or who contravene the child care legislation.When services are found to be in breach of their legislative obligations a compliance letter is issued before further action is taken. This administrative action is not covered by the Act but is said to support departmental policy of engaging with licensees to have cooperative resolution of non-compliance issues. Fast-acting services who remedy the

contravention have no further action taken against them. However, persistent breaches result in compliance notices being issued.22 A compliance notice requires the contravention to be remedied within a stated reasonable time. This applies to stand alone services as well as licensees of child care services.Also, if an authorised officer reasonably believes that a child care centre does not comply with a Building Act 1975 (Qld) requirement, its licensee can be issued with a notice requiring compliance with the Building Act within a stated time of at least 30 days. Failing to do so may result in the licensee being required to give the chief executive a written certificate from a building certifier stating that the centre complies with the Building Act 1975 (Qld). Non-compliance with the notice is a ground for suspension or revocation of a child care licence. Further, the Department of Education and Training’s chief executive is required to place information about certain non-compliant services on the Department’s website.

the service, or if the licence is held by a corporation, a nominee or any of the corporation’s chief executive officers is unsuitable, or there is no appointed nominee for the licence

■ the Commission for Children and Young People and Child Guardian Act is being breached in relation to the engagement of a carer in, or staff member of, the child care service (e.g. a staff member does not have a Blue Card)

■ the centre is unsafe or unsuitable for child care or the licensee has not complied with the requirement to show compliance with the Building Act 1975

■ there is another reason for it being necessary in the interests of the children’s safety and wellbeing that the licence be suspended or revoked.

Again, a ‘show cause’ process occurs before the chief executive decides whether or not to suspend or revoke the licence (unless it is regarded as necessary to immediately suspend the licence for up to 14 days in the interests of the children’s safety and wellbeing).Where licensees have their licences suspended or revoked, notice of such (plus the reasons why) must be given to a parent/guardian of each of the children who are regularly given child care by the service.Licensees can apply to the Queensland Civil and Administrative Tribunal for a review of any of the above decisions.As a result of amendments to the Child Care Act,23 the chief executive must publish repeated or serious breaches of the legislation or actions taken in relation to licences (such as suspensions and revocations) on the OECEC website.24 The publicly available information is aimed at allowing parents/guardians to make informed decisions about a child care service for their child, and will seek to encourage more accountability and improvement within the sector.25 The online compliance publication scheme applies to licensed centre based services (but not to school age care),26 home based services and stand alone care. Rights of review apply.The aforementioned amendments to the Child Care Act also impose an obligation on licensees of centre based and home based services (but not school age care services at this time) to keep compliance history logbooks. The compliance information contained in the logbooks is similar to what is published on the OECEC website, as described in the preceding paragraph (e.g. that a compliance notice has been issued and the reasons for this and any steps taken to rectify contraventions). Logbooks can be inspected by any member of the public.

Stand alone care servicesStand alone care services (providing care to up to six children) are regulated under the

The chief executive has the power to amend a licence at any time. However, licensees must first be given a show cause notice inviting written response to the proposed amendment within a period of at least 30 days. Responses must be considered by the chief executive before amendments are made (or not made). Provision is also made for the immediate amendment of the licence (where the chief executive is reasonably satisfied it is in the interests of the children’s wellbeing and safety to do so) for up to 60 days. The chief executive may also suspend or revoke a licence at any time if satisfied that:

■ the licensee is in contravention of the Child Care Act or of a licence condition in a way, or to an extent, as to justify suspension or revocation

■ the licensee is unable or unwilling to continue to conduct the service

■ the licensee is unsuitable to conduct

Stand alone care services (providing care

to up to six children) are regulated under

the Child Care Act but are not required to be

licensed.


Feature

Child Care Act but are not required to be licensed. For instance, no more than four of the children can be under school age, the carer must be an adult, and the service must have public liability insurance. Care cannot be provided at a home if an occupant has a negative prescribed notice against him or her under the Commission for Children and Young People and Child Guardian Act (effectively meaning that the occupant cannot be around children while care is being provided). Compliance notices can also be issued for breaches of the Child Care Act and the new website publication requirements also apply.

ConclusionThe introduction of a National Quality Framework will build upon the licensing requirements and obligations imposed by state and territory legislation. It is intended by the Commonwealth and the state and territory governments that the changes under the new NQF will ensure high quality and consistent early childhood education and care across Australia, at a crucial time in each child’s life.

Endnotes1. This paper is adapted from a Research Brief prepared

by Nicolee Dixon of the Queensland Parliamentary Library in April 2010 for the information of Members of the Queensland Parliament and other clients. It is based on legislation and policies that were in effect at that time.

2. Australian Bureau of Statistics, Childhood Education and Care, Australia, June 2008, October 2009, Cat 4402.0.

3. Commonwealth Department of Education, Employment and Workplace Relations (DEEWR), Survey of Employers’ Recruitment Experiences, Australian Child Care Industry, October 2008, p5.

4. ‘Formal child care’ embraces regulated/approved government funded care services as opposed to ‘informal care’ provided by family, friends, baby sitters etc.

5. ABS, Childhood Education and Care, Australia, June 2008, Queensland Tables, 44020DO002_200802, Table 1.

6. Queensland Department of Education and Training, Office for Early Childhood Education and Child Care, 2010 Kindergarten Funding Scheme: Guidelines for Long Day Care Services.

7. See Part 5 of the Child Care Act 2002. 8. Before and after school care and vacation care.9. The first step towards the development of the NQF

was the release of a Discussion Paper in August 2008, followed by public consultation and a report from an Expert Advisory Panel. Further public comment was sought in July 2009, and a Regulation Impact Statement was released in December 2009.

10. Queensland Office of Early Childhood Education and Child Care, ‘Special Edition of “A to Z of Early Childhood”’, e-newsletter, 10 December 2009.

11. National Quality Standard for Early Childhood Education ad Care and School Age Care: Queensland OECEC, National Reforms.

12. COAG, 28th Meeting, 7 December 2009, Communiqué, p4.

13. Section 40-55. Fees that apply to obtaining a new licence, renewals and other dealings with licences are set out in the Regulation.

14. Licensing decisions can be appealed to the Queensland Civil and Administration Tribunal.

15. Licensed services must also keep specified records and provide certain information to parents/guardians.

16. An ‘unsatisfactory’ rating indicated the NQS is not being met and steps are being taken to help the service to quickly improve. If there is no improvement, the service will be closed down: see DEEWR, Early Childhood Policy Agenda, NQF, Quality Rating System.

17. Commonwealth DEEWR, Early Childhood Policy Agenda, NQF, Information for Families.

18. Commonwealth DEEWR, ‘The new National Quality Framework’, Child Care News, May 2010, p3.

19. A person who is a qualified assistant can be employed as a group leader at a centre but only for a maximum of three months or the person can be enrolled in a course of study leading to group leader qualifications.

20. A person who is a qualified group leader can fulfil the director’s position at a centre but only for a maximum of three months or, alternatively, if the person, within the three months, enrols in a course of study leading to director qualifications.

21. Commonwealth DEEWR, Early Childhood Policy Agenda, NQF, Information for Services, p3.

22. Queensland OECEC, ‘Compliance publication fact sheet’, p2 (OECEC Fact Sheet).

23. Effected by the Education Legislation Amendment Act 2009 (Qld) (No 39 of 2009), the substantive parts of which commenced on 1 February 2010.

24. Generally for one year regarding repeated or serious breaches and three years for actions taken in relation to a licence.

25. Queensland OECEC Fact Sheet, p1; OECEC, ‘Compliance Publication Scheme’.

26. School age care is not currently included because such services are relatively new to licensing and the initial focus of the amendments is on services mainly providing care to children under school age.

Law Week is a national event, held annually, and aimed at promoting a greater understanding of the law, the legal system and the legal profession within the community. With the theme ‘law and justice in your community’, the 2010 Law Week ran in May with a number of events held in regions and towns across the country.Many of the events staged as part of Law Week were free and covered a wide range of legal issues to best help people access advice and information about the law. In Queensland the event got underway with more than 500 participants in the Queensland Public Interest Law Clearing House (QPILCH) ‘Walk for Justice’, which supports pro bono legal services in Queensland. The five kilometre walk along the Brisbane River and through many of the cities well-known city landmarks was lead by the Honourable Justice Paul de Jersey AC, Chief Justice of Queensland; the Honorable Cameron Dick MP, Attorney-General of Queensland; the Honorable Justice Margaret McMurdo AC, President of the Queensland Court of Appeal; and the Honorable Justice Andrew Greenwood, Judge in the Federal Court of Australia.Law Week events were held in Brisbane, Cairns, Dalby, Gympie, Ipswich, Mackay, Mount Isa and Townsville.The Queensland Law Society teamed with the Department of Justice and Attorney-General and other partners to participate in several events taking place around Queensland for Law Week. The Brisbane Magistrates Court Open Day provided the community with opportunities to learn more about wills, family law, tenancy issues, fair trading, careers in law, legal aid services, and the law relating to older people. People were also exposed to the courts, with behind the scenes tours of the Magistrates Court and mock trials demonstrating how the court system works. Open days were also held in the regional centres of Ipswich, Mackay and Townsville. In Townsville, the local community was able to access free legal advice from solicitors.Legal Aid Queensland ran its fourth annual hypothetical in the Banco Court of Queensland’s Law Courts Complex. This year the focus was on diversionary sentencing options and specifically the work of the drug court. It attracted more than 250 students, legal and government professionals, and interested members of the local community who were engaged in the scenario raising awareness about the aims and eligibility of the drug court program and its benefits as opposed to traditional sentencing. Comedian and radio/television personality Meshel Laurie led the expert panel of Attorney-General Cameron Dick MP, His Honour Judge Brendan Butler AM SC, Chief Magistrate, Magistrates Court; Penny Williams, Drug Court Lawyer, Legal Aid Queensland; Kirsty Arthur, Drug Court Officer, Queensland Corrective Services; Julie O’Dea, Drug Court Health Assessor, Queensland Health; and Jason Payne, Research Analyst, Australian Institute of Criminology through the case.

Law and justice in your community:

Law Week 2010 in Queensland

Web Weaving: Communications and media law

by Calista Bruschi


Communications and Media Law relates to the laws encompassing the regulation of the press, as well as radio and television broadcasting. In recent years, this has expanded to include the regulation of the Internet and social networking services (such as Facebook and MySpace).Included under the banner of Communications and Media Law are the topics of:

■ Freedom of Information ■ Freedom of Speech ■ Telecommunications ■ Regulation of radio and television broadcasting ■ Broadband ■ Regulation of Internet and social networking services ■ Defamation ■ Journalists’ ethics and whistleblowing ■ Classification on censorship ■ Privacy law ■ Internet filtering ■ The Do Not Call Register ■ Copyright ■ Advertising ■ Confidentiality

Legislation ■ Australian Broadcasting Corporation Act 1983 ■ Broadcasting Services Act 1992 ■ Radiocommunications Act 1992 ■ Telecommunications Act 1997 ■ Spam Act 2003 ■ Australian Communications and Media Authority Act 2005 ■ Do Not Call Register Act 2006

All of the above Acts are available online at the ComLaw website (www.comlaw.gov.au)

Case LawAustralian Press Council decisions from 1976 onwards, and matters arising under federal media and telecommunications laws decided by the Federal Court of Australia can be accessed on the Australasian Information Institute website (www.austlii.edu.au).

Websites ■ Australian Communications and Media Authority (ACMA) is responsible for the regulation of broadcasting, radio communications, telecommunications and Internet content. See: www.acma.gov.au.

■ Communications and Media Law Association (CAMLA) is a member organisation bringing together people with an interest in law and policy relating to communications and the media. See: www.camla.org.au.

■ Telecommunications Industry Ombudsman is a free and independent alternative dispute resolution scheme for small business and

Calista Bruschi is the Community Relations Officer and Schools and Community Education Services Coordinator for the Queensland Law Society, and is the Editor of The Verdict magazine.

Regular feature

residential consumers who have a complaint about their telephone or Internet services. See: www.tio.com.au.

■ Communications Alliance is the major organisation for the Australian communications industry, and it coordinates the industry’s response to the implementation of the National Broadband Network (NBN). The NBN is the Australian Government’s project to design, build and operate an open access network for up to 90% of Australian homes, generating Internet speeds of 100 Megabits per second (That’s FAST!). See: www.commalliance.com.au and www.dbcde.gov.au.

■ Office of Film and Literature Classification is the statutory censorship and classification body in Australia. See: www.oflc.gov.au.

■ Office of the Privacy Commissioner is the national privacy regulator, providing information and advice about privacy and the law, handling complaints, conducting audits and undertaking promotional and educational activities. See: www.privacy.gov.au.

Journal articles and reportsJackson, K. ‘Household Broadband Access in Australia’, Australian Parliamentary Library Research Note No. 34 2001/02, April 2002, see www.aph.gov.au/library/pubs/rn/2001-02/02rn34.htm.‘A lost opportunity? Inquiry into the provisions of the Australian Communications and Media Authority Bill 2004 and related bills and matters’, Parliament of Australia, March 2005, see: www.aph.gov.au/Senate/Committee/ecita_ctte/completed_inquiries-2004-07/ACMA/Report/index.htm.Dixon, N. ‘Defamation and the Internet: A New Challenge’, Queensland Parliamentary Library Research Brief No. RBR 2003/11, May 2003, see: www.parliament.qld.gov.au/view/publications/documents/research/researchbriefs/2003/200311.pdfStamatoudi, IA., & Torremans, PLC. ‘Copyright in the new digital environment : the need to redesign copyright’ Perspectives on Intellectual Property v8, Supreme Court of Queensland Library, 2000.Dixon, N. ‘Uniform Defamation Laws’ Queensland Parliamentary Library Research Brief No. RBR 2005/14, June 2005, see: www.parliament.qld.gov.au/view/publications/documents/research/researchbriefs/2005/200514.pdf‘The effectiveness of the broadcasting codes of practice’, Parliament of Australia, June 2008, see: www.aph.gov.au/Senate/Committee/eca_ctte/broadcasting_codes/report/index.htm.Wallis Consulting Group Pty Ltd. ‘Community attitudes towards privacy 2007’, prepared for the Office of the Privacy Commissioner, August 2007, see: http://www.privacy.gov.au/materials/types/research?sortby=64.

The Queensland Law Society regularly receives requests for assistance. To help our community better access information in the many areas of law, Web Weaving will now provide useful resources for students, teachers and interested community members to access.


Feature

Going green: Sustainable housing laws in Queensland

Throughout 2009 and into 2010, the Queensland Government introduced new sustainable housing laws to improve water and energy efficiency in Queensland

homes, and to encourage better design in the building sector.

Throughout 2009 and into 2010, the Queensland Government introduced new sustainable housing laws to improve water and energy efficiency in Queensland homes, and to encourage better design in the building sector.With more than 1.6 million homes already existing in Queensland1, and with thousands of new residents making Queensland their home each year, it was considered more important than ever to design homes that have a minimal impact on the environment and can respond to the changing lifestyles and circumstances of its occupants. A sustainable house is one that requires the use of as little water and energy as possible, thereby reducing the household’s carbon footprint.The new laws apply to new houses, townhouses, units and major renovations. The implemented improvement measures are aimed at assisting owners, architects and designers in developing homes that best suit the unique climatic conditions of Queensland, which range from hot and humid in the far north, to cool and temperate on the Darling Downs, to hot and arid in the west.2 The changes are implemented under the Queensland Development Code 4.1 – Sustainable buildings.The concept of sustainable housing is not a new one. As far back as 1909, with the introduction of the Worker’s Dwellings Act (Qld), Queenslanders were provided with subsidised housing and were offered suggestions on how to build homes that would best address cooling and heating issues. The State became known for its classic tin and timber homes with sprawling verandahs and natural ventilation that were liveable during both hot summer and cool winter months. However, with advances in building materials and technologies, the look and feel of Queensland’s houses have changed and now designs may not necessarily be in the best interests of the environment.Minister for Infrastructure and Planning, the Honourable Stirling Hinchcliffe MP, said that the introduction of new sustainable housing laws for Queensland would help reduce the carbon footprint and have a positive affect on housing affordability.3

According to the Building Code of Australia 2010, the highest energy equivalent rating a building can achieve is 10 stars. In Queensland, the minimum energy equivalent rating for houses and units has been based on the climate zone where the house or unit is located, and meant at least a 3.5 to 4-star rating was required. The new sustainable housing legislation, which took effect in 2009, increased the minimum to 5 stars, and from May 2010, new houses, townhouses and major renovations are required by law to achieve a 6-star energy equivalent rating.4 This refers to the shell of the building specifically, that is the roof, walls, windows and floors and therefore fixtures and appliances of a residential dwelling such as hot water systems, air conditioners, lighting and fridges, have additional energy equivalent ratings to be considered. New and existing units are exempt from the 6-star requirement because they have been required since March 2010 to achieve a 5-star energy equivalent rating.

“The change to the 6-star energy equivalence standard for all new homes built in Queensland from May 1 will reduce reliance on artificial heating and cooling,” said Mr Hinchcliffe.5

He said the 6-star ratings for new homes were announced as part of the Cleaner, Greener Buildings policy after research showed the built environment, and its occupants, contributed up to 23 percent of Queensland’s total greenhouse gas emissions.The reason hot water systems and other appliances are not included as part of the energy equivalent star rating is because they have a far shorter working life than the home itself. It is expected that a hot water system, washing machine, refrigerator, shower and stove will need replacing over time, but walls, windows and floors are less likely.

What does a 6-star home look like?Under the energy equivalent rating scheme, the more stars a building has, the more energy efficient and comfortable it is considered. With Queensland’s variable climate, there is a combination of design features that will influence a home’s energy efficiency. Common design features across all climatic conditions include:

■ Orientation of the house on the block ■ Roof, external walls, ceilings and floors ■ Ventilation

Architects and building designers are encouraged to make living rooms face a northern aspect, minimise the east and west facing walls and windows, and where natural ventilation cannot be provided, recommend mechanical ventilation products that are energy efficient. Owners are also encouraged to increase insulation in roof spaces, walls, ceilings and floors, especially where air conditioning is in use, and to have glazed or treated glass on windows.6

All new houses, townhouses, and major renovations must also install, as a minimum:

■ 4-star rating toilets ■ 3-star rating tap ware ■ 80% energy efficient lighting in new houses and townhouses

The water saving fixtures have been pushed as particularly important in Queensland with drought and water storage levels across the State being at all-time lows in recent years. It is anticipated that 6-star housing will reduce greenhouse gas emissions by more than 7700 tonnes each year, which will save more than 85,000 tonnes by the year 2020. But what about the associated costs of having to meet the new energy equivalent rating? According to the State Government, construction costs should only increase by less than one percent, and the reduction in the use of artificial cooling and heating should save the average Queenslander homeowner around $200 per year.7 It is anticipated that by having a home that is more sustainable and comfortable to live in, owners are likely to see reductions in their energy bills as the necessity of

by Calista Bruschi


Feature

having to use artificial heating or cooling will be reduced.

How is the 6-star rating determined to be achieved?According to Michael Plunkett, a director of the Association of Building Sustainability Assessors (ABSA) and head of home sustainability assessment company, SmartRate, there are a number of performance requirements that need to be demonstrated in order to meet energy equivalent star rating compliance, and there are four assessment methods that may be used to determine compliance:

■ Use of software that is accredited by the Building Act 1975, regulations, and protocols of the Building Code of Australia

■ Independent assessment using the ‘deemed-to-satisfy’ components as outlined in the Building Code of Australia, and the Queensland-specific variations as defined in the Queensland Development Code

■ Use of a reference building allowing the intended design to be evaluated against a home that is already known to comply

■ Peer review, carried out by a recognised expert as identified by the Department of Infrastructure and Planning

Under the Building Act 1975 (Qld), it is the responsibility of the building certifier to determine how the 6-star energy equivalent requirement applies to the house, town house or major renovation. Failure to do so may result in fines, and ultimately a loss of their certifier’s licence.But Mr Plunkett said the accreditation and regulation of sustainable housing assessors added a dimension of difficulty for consumers wanting to meet the energy equivalent star rating as outlined in the legislation.“At the moment, the only state to require a certificate of accreditation from ABSA for sustainability assessors is NSW,” he said.He considers a national framework and a more refined process of regulation requiring sustainability assessors to be issued with certificates identifying their accreditation and imposing that building certifiers only work with accredited assessors, could ensure consistency in the assessment process throughout Australia.

What support is there for home owners?There are a number of rebate programs and incentives available to home owners to assist them in making their home more water and energy efficient.QueenslandThe Queensland Department of Mines and Energy introduced the Residential Gas Installation Rebate Scheme in 2006 as part of the Government’s $14.25 million Energy Choices package. Home owners could claim up to $500 under the rebate, including $200 for household gas items such as stoves,

ovens, space heating and clothes dryers.Another scheme is the Solar Bonus Scheme administered by the Queensland Government’s Office of Clean Energy. Domestic and other small energy customers may be paid for the surplus electricity generated from roof top solar photovoltaic (PV) systems that are exported to the Queensland electricity grid. Customers are rewarded whenever they generate more electricity than they are using, not just the balance at the end of every quarter but whenever generation exceeds consumption during the day. Customers participating in the Scheme are paid 44 cents per kilowatt hour (kWh) for surplus electricity fed into the grid, which could produce average savings of $400 per year. The scheme commenced in July 2008 and is designed to not only make solar energy more affordable for Queenslanders, but to boost the state’s use of renewable energy and stimulate the solar power industry in Queensland.8

In April 2010, the Queensland Government announced a new rebate for eligible householders who replace an electric hot water system with a solar hot water system or heat pump. Under the Queensland Solar Hot Water Rebate, low income earners and pensioners are eligible for a $1000 rebate, while all other Queensland households can receive up to $600.9

AustraliaIn February 2010, the Federal Government announced the household Renewable Energy Bonus Scheme to assist households in saving money on power bills and reducing their carbon emissions, and replacing the Solar Hot Water Rebate Program.10 The new scheme is aimed at helping eligible home owners and landlords replace electric hot water systems with solar or heat pump hot water systems. Rebates between $600 and $1,000 can be claimed.11

Also making it cheaper for home owners, landlords and tenants is the Renewable Energy Target; a national scheme aimed at promoting the development of renewable energy through the use of solar and heat pump hot water systems, making them eligible to receive Renewable Energy Certificates (RECs). The benefit for consumers with RECs comes at the point of sale from the retailer as a discount on the overall cost of a hot water system for the household.There are also a number of separate incentives for home owners and householders aimed at saving on the costs of purchasing and installing a water-saving item such as dishwashers, shower heads, dual-flush toilets, rain water tanks, and systems for greywater use. For example, the National Rainwater and Greywater Initiative has rebates of up to $500 to assist homeowners (including landlords) in the installation of rainwater tanks or a greywater treatment system (the rebate can only be applied for once). Rainwater tanks

and greywater treatment systems can save money on water bills.

Moving forwardThe community and peak industry bodies, such as the Housing Industry of Australia, the Queensland Master Builders Association, and the Property Council of Australia have strongly supported sustainable improvements to Queensland’s housing standards.12 The introduction of the new sustainable housing laws has also had an impact on the selling of a house or unit, with the completion of a Sustainability Declaration now mandatory. While the declarations do not form part of the contract of sale, they are used as tools to inform prospective buyers about the sustainability features of the house or unit. Property owners or suitably qualified persons (such as building inspectors) are able to complete the Sustainability Declaration and the declaration must be available to any potential buyer while the property is on the market.With the constant increase in Queensland’s population, there is much emphasis on encouraging people to remain in the same home for longer. The sustainable housing laws means that homes are being designed and constructed to be more adaptable to support people’s changing lifestyles, which will in turn benefit the environment.

Endnotes1. Department of Infrastructure and Planning, Improving

sustainable housing in Queensland: Discussion Paper, June 2008.

2. Department of Infrastructure and Planning, Improving sustainable housing in Queensland: Discussion Paper, June 2008, p6.

3. Hinchcliffe MP, The Hon. Stirling, Queensland takes the lead in sustainable housing, Ministerial Media Statement, October 2009.

4. Department of Infrastructure and Planning, Sustainable housing, May 2010. See: www.dip.qld.gov.au/sustainable-housing/index.php.

5. Hinchcliffe MP, The Hon. Stirling, New six-star energy efficient standard for new homes and townhouses, Ministerial Media Statement, April 2010.

6. Building Codes Queensland, 6-star energy rating for houses and townhouses, Fact sheet, March 2010. See: http://www.dip.qld.gov.au/resources/factsheet/building/six-star-factsheet.pdf

7. Department of Infrastructure and Planning, Improving sustainable housing in Queensland: Discussion Paper, June 2008, p13.

8. Office of Clean Energy, Solar Bonus Scheme, June 2010. See: http://www.cleanenergy.qld.gov.au/solar_bonus_scheme.cfm.

9. Office of Clean Energy, Queensland Solar Hot Water Program, June 2010. See: http://www.cleanenergy.qld.gov.au/queensland_solar_hot_water_program.cfm.

10. Department of Climate Change and Energy Efficiency, Renewable Energy Bonus Scheme – solar hot water rebate, 2 June 2010. See: http://www.climatechange.gov.au/government/programs-and-rebates/solar-hot-water.aspx.

11. Department of Climate Change and Energy Efficiency, Renewable Energy Bonus Scheme – solar hot water rebate, 2 June 2010. See: http://www.climatechange.gov.au/government/programs-and-rebates/solar-hot-water.aspx.

12. Department of Infrastructure and Planning, Improving sustainable housing in Queensland discussion paper – approved policy outcomes, Building Newsflash # 344, Issued December 2008.


Feature

Glassing is a term colloquially used to describe an act of violence that involves the use of glass and causes injury to a person.1 Glassing can involve a premeditated attack where someone deliberately breaks a glass or bottle and uses it as a weapon on another. It can also be the consequence of a spur of the moment decision to strike someone whilst having a glass or bottle in the hand. Alcohol-related violence, including assaults using glass, is not new but it is on the increase. The consequences for both the victim and perpetrator of a glassing attack can be significant. For the victim, glassing can result in ongoing physical and psychological injuries. Physical injuries can range from superficial lacerations to the fracturing of facial bones and facial disfigurement. Victims may suffer blurred vision or loss of vision and ongoing headaches. The victim of a glassing attack can suffer psychological harm that affects them both socially and professionally. For the perpetrator, a sentence of imprisonment can have an ongoing impact on their working, family and social lives. Glassing attacks can also involve significant costs for the State, including the cost of having a police presence in social hotspots to try and stop such alcohol-related violence; security and surveillance costs; costs of hospital, medical treatment and ongoing care for the victim; the cost of processing an offender through the judicial system which incorporates the cost of a police investigation, criminal prosecution, prison and any parole/rehabilitative programs; and the cost of any criminal compensation orders made pursuant to the Criminal Offence Victims Act 1995 (Qld) that the offender is unable to meet. A study of the cost of tobacco, alcohol and illicit drug abuse to Australian society in 2004-2005 revealed that alcohol misuse costs the Australian community an estimated $15.3 billion each year when factors such as crime and violence, treatment costs, loss of productivity and premature death are taken into account.2

There is also a cost to the venue at which the glassing occurs, as was highlighted by the Chalk Hotel at Woolloongabba (East Brisbane) in November 2009. The General Manager of the Chalk Hotel, Jason Titman, announced to the media that the Chalk Hotel would be seeking compensation in civil proceedings from the alleged perpetrator of a glassing attack for interfering with the safety and enjoyment of other patrons, the loss of reputation to the Chalk Hotel, the costs associated with investigating the matter and any additional compliance costs the hotel needed to introduce.3

The lawIn Queensland, a person who ‘glasses’ another may be charged and prosecuted under one of the following offences in the Criminal Code 1899 Qld (the Code):1. s339 - Assault occasioning bodily harm whilst armed

by Skye Growden

Alcohol-fuelled violence at public places is a serious societal problem and the subject of community abhorrence. One act of violence that is particularly prevalent in our community is glassing.

2. s323 – Unlawful wounding3. s320 – Grievous bodily harm4. s317 – Acts intended to cause grievous bodily harm and other

malicious actsThe medical evidence substantiating the injury sustained as a result of the glassing will be a determining factor in relation to any criminal charge and its ultimate prosecution. Assault occasioning bodily harm whilst armedIf the victim of the glassing suffers bodily harm, that is, any bodily injury which interferes with health or comfort, then the offender could be charged with assault occasioning bodily harm under the Code. The prosecution must prove that:1. the defendant assaulted the complainant - Any person who strikes,

touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person’s consent is said to assault that other person

2. the assault was unlawful, that is not authorised, justified or excused by law

3. the defendant thereby did the complainant bodily harm.An offence of assault occasioning bodily harm may be dealt with summarily in the Magistrates Court or on indictment in the District Court.If the offender does bodily harm and is armed with any dangerous or offensive weapon or instrument, such as a glass, they can then be charged with assault occasioning bodily harm whilst armed. This offence must be dealt with in the District Court, due to the aggravated circumstance as outlined in the Code. The matter will first be heard by a Magistrate at a committal hearing. Defences to a charge of assault occasioning bodily harm whilst armed include self defence or defence of another person and provocation. Provocation is available as a defence as assault is an element of the offence. However, as intention is not an element of the offence, intoxication is irrelevant.The maximum sentence for an offence of assault occasioning bodily harm is seven years imprisonment. However, if the offender does bodily harm, and is armed with any dangerous or offensive weapon or instrument, as is the case with a glassing, then they are liable to imprisonment for ten years.Unlawful woundingIf the victim of a glassing suffers an injury that amounts to a wound, then the offender may be charged with unlawful wounding. For a charge of unlawful wounding the prosecution must prove that:1. the defendant wounded the complainant2. the wounding is unlawful.The prosecution must tender medical evidence to the court to


FeatureGlassing

substantiate the first element of unlawful wounding. The medical evidence must provide that as a result of the glassing the true skin of the complainant was broken and penetrated. It will not be sufficient for a charge of unlawful wounding for the cuticle or upper skin to be broken; the whole skin must be broken.4

A wounding is unlawful if it is not authorised, justified or excused by law. Defences to a charge of unlawful wounding include self defence, defence of another and accident. Provocation under the Code is not a defence to a charge of unlawful wounding as, unlike assault occasioning bodily harm, assault is not an element of the offence 5. As intention is not an element of unlawful wounding, intoxication is also irrelevant.Unlawful wounding is an indictable offence and will be dealt with in the District Court following a committal hearing in the Magistrates Court. If an offender is found guilty of unlawful wounding then they may be sentenced to a maximum term of seven years imprisonment. Grievous bodily harm If the injury sustained by the victim of a glassing amounts to grievous bodily harm then the offender may be charged with grievous bodily harm, the definition of which can be found under the Code. The prosecution must prove that as a result of the glassing the victim suffered:1. the loss of a distinct part or an organ of the body 2. serious disfigurement 3. any bodily injury of such a nature that, if left untreated, would

endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health

4. whether or not treatment is or could have been available.Defences to a charge of grievous bodily harm include accident, insanity and self defence. As with unlawful wounding, provocation is not a defence to grievous bodily harm and intoxication is irrelevant.Grievous bodily harm is an indictable offence and will be dealt with in the District Court following a committal hearing in the Magistrates Court. If an offender is found guilty of grievous bodily harm then they may be sentenced to a maximum term of 14 years imprisonment. Acts intended to cause grievous bodily harm and other malicious actsIf by glassing another, a person intends to cause grievous bodily harm then they may be charged with an offence under the Code. The prosecution would need to prove that the offender, with intent to maim, disfigure or disable either:1. unlawfully wounded or did grievous bodily harm to the complainant2. unlawfully struck, or attempted in any way to strike the complainant.As intention is an element of this offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed. Acts intended to cause grievous bodily harm and other malicious acts is an indictable offence that is dealt with in the District Court following a committal hearing in the Magistrates Court. If an offender is found guilty of this offence they may be sentenced to a maximum term of life imprisonment.

SentencingIn Queensland, the Penalties and Sentences Act 1992 (Qld) outlines sentencing principles that would be applied by a judge in a glassing case. The purpose of a sentence in a glassing case may be to punish, rehabilitate or deter the offender. It may also be to denounce the conduct, deter others from committing like offences and/or protect the community from the offender.The Act provides that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable. However, in the event of a glassing, this will not be the case. The Act provides that these principles do not apply to the sentencing of an offender for an offence that involves the use of violence against another person or that resulted in physical harm to another person.


Feature Glassing

In a glassing case, the court will have regard primarily to the risk of physical harm to any members of the community if a custodial sentence were not imposed; the need to protect any members of the community from that risk; the personal circumstances of the complainant; the circumstances of the offence, including any injury to a member of the public or any loss or damage resulting from the offence; the nature or extent of the violence used, or intended to be used, in the commission of the offence; any disregard by the offender for the interests of public safety; the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed; the antecedents, age and character of the offender; any remorse or lack of remorse of the offender; any medical, psychiatric, prison or other relevant report in relation to the offender; and anything else about the safety of members of the community that the sentencing court considers relevant.The offences of assault occasioning bodily harm, unlawful wounding, grievous bodily harm, and acts intended to cause grievous bodily harm and other malicious acts are all listed as serious violence offences in the Act. What this means is that if the offender is sentenced to ten or more years imprisonment for the offence or is sentenced to five or more but less than ten years imprisonment and declared to be convicted of a serious violent offence, then at the time of sentence the court may, fix the date the offender will be eligible for parole.If the offender is not convicted of a serious violent offence and the sentence is of three years imprisonment or less then at the time of sentence the court must fix a date for the offender to be released on parole. However, if the offender is sentenced to more than three years imprisonment, the court may fix a parole eligibility date.

CasesA review of Queensland Court of Appeal cases heard in the past 10 years highlights that in the event of a glassing an offender may be sentenced to between one to three years imprisonment.6 Some of the cases include: R v Hays; ex parte A-G [1999] QCA 443The case of R v Hays; ex parte A-G [1999] QCA 443 was an appeal by the Attorney General against a sentence of 240 hours community service for the offence of unlawful wounding. The offence involved the respondent striking the complainant on the chin with a beer glass after an exchange of heated words at a hotel. The blow was considered as being spontaneous rather than premeditated. The respondent in this case was only 24 years of age at the commission of the offence. He had no relevant prior criminal history and had entered a plea of guilty. He was of good character; had a good employment history and was remorseful and regretful in relation to the offence. The Chief Justice stated that “ordinarily persons committing offences of this character must expect to have to serve a term of actual imprisonment. That is so even if the offender is young with an unblemished record, and commits the offence spontaneously”. The Court of Appeal allowed the appeal in this case and set aside the original sentence. A sentence of 18 months imprisonment was imposed. However, it was wholly suspended as the respondent had already completed 58 hours of community service at the time of the appeal. R v Toohey [2001] QCA 149The case of R v Toohey [2001] QCA 149 was an appeal against a sentence of two years imprisonment for an offence of unlawful wounding. The offence involved the appellant smashing a 10-ounce glass (possibly inadvertently), retaining the bottom of the glass in his hand and then lunging at the complainant with the broken glass. Unlike R v Hays; ex parte A-G, where the injury to the complainant resulted from a spontaneous act involving a glass, this case involved an injury that was caused by a broken glass used as a weapon. The appellant in this case was a 24 year old male. He had some criminal history, although not for offences of violence, and pleaded guilty to the offence. The appellant had a history of problems with alcohol. He was working three days per week on a community employment program at the time of sentence.The Court of Appeal refused the application for leave to appeal against sentence. R v Mladenovic; Ex parte A-G (Qld) [2006] QCA 176R v Mladenovic; Ex parte A-G (Qld) [2006] QCA 176 was an appeal by the Attorney-General against a sentence of 12 months imprisonment to be served by intensive correction order for two counts of unlawful wounding, one count of assault occasioning bodily harm whilst armed and in company, and one count of stealing. The glassing offences involved the respondent breaking two bottles before challenging two complainants to a fight and striking them to the face and head, using the bottles as weapons. The respondent in this case was 18 years old at the time of the offences and 20 at sentence. He had a limited criminal history but none for like offences and had responded well to previous community based orders. At the time of sentence the respondent had attained his goal of an apprenticeship.The Court noted the offence could well have resulted in the imposition of actual custody but in this case the respondent’s lack of prior relevant criminal history, youth, prospect of rehabilitation, and guilty plea made the exceptional sentence imposed appropriate and not outside the bounds of the sentencing discretion. The relatively minor nature of the injuries caused was also a relevant consideration. The Court of Appeal dismissed the appeal by the Attorney-General against sentence. R v Berryman [2005] QCA 471The case of R v Berryman [2005] QCA 471 was an application for leave to appeal against a sentence of three years imprisonment for grievous bodily harm where the term was to be suspended after 12


FeatureGlassing

months imprisonment. The offence involved the appellant smashing an unbroken glass into the complainant’s face. It was an unprovoked attack.The appellant was 24 years of age at the time of the offence. He did not know the complainant and was intoxicated. The appellant entered a timely plea of guilty to the offence and was remorseful. He had no criminal history at the time of the offence but while on bail awaiting sentence he assaulted and did bodily harm to his wife. By the time of sentence the appellant had completed an anger management course. He was held by the court to be of good character and had a good work history.Unlike the cases of R v Hays; ex parte A-G, R v Toohey and R v Mladenovic; Ex parte A-G (Qld), the injury in R v Berryman resulted in serious disfigurement and consequently the charge was one of doing grievous bodily harm as opposed to unlawful wounding. The Court of Appeal held that the sentence imposed was within range and dismissed the application for leave to appeal against sentence.R v Bennett [2007] QCA 324 7

R v Bennett [2007] QCA 324 was an appeal against a sentence of 18 months imprisonment with a fixed parole release date after four months for an offence of assault occasioning bodily harm whilst armed. The offence involved the appellant striking the complainant whilst holding a glass in his hand. The consequent injury to the complainant was minor and insufficient to constitute wounding.The appellant was 26 years of age at the time of the offence. He was intoxicated and spontaneously struck the complainant after a verbal altercation. The appellant entered a timely plea of guilty to the offence. He had a criminal history with two prior convictions for common assault. The appellant had a good work history.The application for leave to appeal against sentence was refused by the Court of Appeal and the original sentence upheld. R v Joel Matthew Denyer [2009] QCA 53 8

R v Joel Matthew Denyer [2009] QCA 53 was an application for leave to appeal against a sentence of 18 months imprisonment with a parole release date after three months imprisonment for an offence of unlawful wounding. The appellant and complainant knew and disliked each other and while drinking at a hotel they exchanged insults and engaged in provocative behaviour. Twenty minutes after the initial confrontation the appellant struck the complainant on the face with a beer bottle. The appellant was 20 years old at the time of the offence. He is an indigenous male. The appellant was 21 years old at sentence and sentenced on an ex-officio indictment. He had been engaged in stable employment since leaving high school. The appellant had exhibited considerable remorse for his offending and had attended rehabilitative programs prior to sentencing, including anger management counselling and meetings at Alcoholics Anonymous. The application for leave to appeal against sentence was refused by the Court of Appeal and the head sentence of 18 months imprisonment for the offence of unlawful wounding was upheld.

Measures to address alcohol-related violenceIn 2006, the National Alcohol Strategy was developed in response to high risk alcohol consumption in Australia for the purpose of preventing and minimising alcohol-related harm to individuals, families and communities. The National Alcohol Strategy will be in place until 2011. Already there have been several media campaigns to address binge-drinking and deter patrons from committing acts of violence on others.Since 1 July 2006, a 3.00am lockout has been in effect in all late-trading licensed premises throughout Queensland, as part of the Statewide Safety Action Plan. In 2008, the Queensland Government,

The offences of assault occasioning bodily harm, unlawful wounding, grievous bodily harm, and

acts intended to cause grievous bodily harm and other malicious acts are all listed as serious violence offences

in the schedule to the Act.

in an attempt to address alcohol-related violence, passed legislation that, amongst other things, reduced trading hours at licensed venues. Alcohol-related violence has been so prevalent in the state of Queensland that it has been the subject of an inquiry by the State Government’s Law, Justice and Safety Committee since July 2009.9

The Committee published an issues paper on the topic on 31 August 200910 and conducted public hearings in Cairns, Townsville and Brisbane, receiving submissions from various parties in relation to

safety and preventative measures to reduce levels of alcohol-related violence. On 16 September 2009, Premier Anna Bligh announced a moratorium on all applications for extended trading hours at licensed venues. The moratorium was put in place for 12 months pending the outcome of the Law, Justice and Safety Committee inquiry into alcohol-related violence.11

The Law, Justice and Safety Committee tabled its interim report on 25 November 2009.12 There was only one recommendation in the report; that the Parliament inquire into the role of drugs in our society and the impact of drugs upon issues such as, but not limited to, violence in and around licensed venues. Several strategies to deal with alcohol-related violence were examined as part of the inquiry by the Law, Justice and Safety Committee. One of the strategies considered was an increase in police resources. Police Minister Neil Roberts has denied that police are under-resourced.13

However, General President of the Queensland Police Union, Ian Leavers has refuted the Police Minister’s claims that there are enough resources, particularly for Brisbane City and Fortitude Valley, as farsical.14

Operation Merit, which was a high visibility operation of the Queensland Police Service, took place from December 2009 through to January 2010, and the Flying Squad, a specialist unit of six police officers that targeted violent hotspots in Brisbane and Fortitude Valley over a two-year period were recently discontinued, supposedly due to a lack of resources.15 A national initiative to reduce alcohol-related violence was Operation Unite which took place on 11 and 12 December 2009.16

Another strategy that was put forward by the State Government to reduce alcohol-related violence was to ban regular glass in venues determined to be a high risk for assaults involving the use of glass. This strategy was supported by the Opposition as a preventative measure. However, the Opposition argued that it needed to be part of a broader response to tackling alcohol-related violence around licensed premises.17

The Liquor Act 1992 (Qld) provides that the chief executive may classify all or part of a licensed premises as high risk if one of more glassing incidents happen at the premises during the relevant time.18 However before classifying the premises or part of the premises as high risk, the chief executive must give the licensee of the premises a written notice and have regard to the licensee’s response, if any, to the notice.19

In 2009, the Office of Liquor and Gaming Regulation issued Show Cause Notices to 77 licensed venues throughout Queensland, including the Chalk Hotel, demanding justification as to why they should not be made to trade regular glass for plastic or use tempered glass The Queensland Hotels Association chief executive Justin O’Connor


Feature Glassing

objected to a ban on regular glass, describing the proposed measure as “addressing the symptoms, not the disease” with the disease being violence in the community.21 On 5 March 2010, Queensland Liquor Licensing Minister Peter Lawlor announced that eight licensed premises in Queensland had been deemed as high risk establishments by the Office of Liquor and Gaming Regulation. This meant that regular glass was not to be made available to patrons and instead, alternatives such as toughened, tempered or polycarbonate glassware was to be used. To date, the State Government has refused to name the venues.22

The Law, Justice and Safety Committee tabled its final report in State Parliament in March 2010.23 The Committee recommended that the Queensland Government mandate a phasing out of regular glass in all venues trading after midnight (other than low risk venues) over a period of two years.24 It did so despite some reported resistance to the alternatives to regular glass by consumers and licensed venues and despite evidence which suggests that moves away from regular glass might not significantly reduce the number of violence incidents in licensed venues. Nevertheless, the Committee concluded that moving away from glass might reduce the severity of injuries suffered as a result of violent incidents. Further recommendations of the Committee included the provision of additional resources to the Office of Liquor and Gaming Regulation to enable greater enforcement of liquor licensing laws,25 and an increase in police numbers.26 The Committee strongly supported the need for greater emphasis on individual responsibility and advocated for an increase of penalties for perpetrators of alcohol-related violence27 and amendments to the Code so that the use of glass as a weapon is a circumstance of aggravation in assault offences.28 The Committee also recommended that the decision as to the appropriate range of penalties for alcohol-related offences be referred to the Sentencing Advisory Council and the community be involved in establishing the appropriate penalties for crimes involving alcohol-related violence.29

In addition to its recommendations on the penalties for perpetrators of alcohol-related violence, the Law, Justice and Safety Committee suggested that the Government give police and the courts power to ban those persons who commit a serious offence in or around licensed venues from specified areas.30 The Committee suggested this could be achieved by giving police the power to issue a show cause notice to the offender with a magistrate to hear a show cause application. This initiative is already in place in Victoria and Western Australia. In Western Australia, the police must prove it is in the public interest to have the person banned and provide evidence of their criminal convictions or details of their involvement, or suspected involvement, in serious or organised crime. Two women have been banned to date in Western Australia.31 Other recommendations of the Law, Justice and Safety Committee centered on reduced trading hours32, improved transport options for patrons,33 greater education campaigns on alcohol-related violence, particularly in schools,34 and the use of ID scanning systems at venues.35 Premier Anna Bligh has advised that the government will not rush into making a decision on the recommendations of the Law, Justice and Safety Committee and will talk to industry, police and local councils before implementing any of the recommendations in the final report.36

ConclusionThe Law, Justice and Safety Committee highlighted in its final report

the failure by all levels of Government, industry, community and the individual in reducing alcohol-related violence in Queensland. Hopefully, once all stakeholders are consulted, some of the recommendations of the Committee are implemented. Whether the recommendations will be enough to reduce alcohol-related violence and particularly decrease the number of glassing attacks in Queensland will remain to be seen but it can only be a step in the right direction.

Endnotes1. See section 96 of the Liquor Act 1992 (Qld)2. Collins T and Lapsley H (2008) The cost of tobacco, alcohol and illicit drug abuse to

Australian Society in 2004-2005 Summary Version, National Drug Strategy Monograph Series No. 66. Canberra: Commonwealth Department of Health and Ageing

3. Calligeros, M., Glassing victim’ may face legal action,Brisbane Times,November 2, 2009 4. R vJervis [1993] 1 Qd R 643 at 6455. Kaporonovski v R (1975) 133CLR 2096. R v. Hayes, ex parte Attorney-General [1999] QCA 4437. Corrective Services Act 2006 (Qld).The Act received assent on 1 June 2006 and

commenced on 28 August 2006, and ultimately amended the Penalties and Sentences Act 1992 (Qld) to introduce court ordered parole.

8. Corrective Services Act 2006 (Qld).The Act received assent on 1 June 2006 and commenced on 28 August 2006, and ultimately amended the Penalties and Sentences Act 1992 (Qld) to introduce court ordered parole.

9. In is also prevalent in other jurisdictions. In Western Australia the Standing Committee on Community Development and Justice will report to the Legislative Assembly on The Impact of Alcohol-Fuelled Violence in Western Australia on 30 April 2010

10. Law, Justice and Safety Committee, Inquiry into alcohol-related violence in Queensland: Issues paper, August 2009, http://www.parliament.qld.gov.au/view/committees/documents/lcarc/otherPublications/IP%20Alcohol%20Related%20Violence.pdf

11. The Office of Liquor and Gaming Regulation, Extended hours applications - moratorium, November 30, 2009, http://www.olgr.qld.gov.au/industry/liquorLicensing/moratorium-ext-hours.shtml

12. Law, Justice and Safety Committee, Inquiry into alcohol-related violence: Interim report, Report No. 73, November 2009, http://www.parliament.qld.gov.au/ljsc/view/committees/documents/lcarc/reports/Report%2073.pdf

13. Sandy, A., GroundedFlying squad’s wings clipped days before booze report due, The Courier Mail, March 8, 2010, pp 1-2

14. Sandy, A., Call for extra police to control drunken crowds, The Courier Mail, March 9, 2010, p 15

15. Supra n 1116. Queensland Police Services, Media Release, Operation Unite Concludes, December

13, 2009,http://www.police.qld.gov.au/News+and+Alerts/Media+Releases/2009/12/Opuniteconcludes.htm

17. John-Paul Langbroek, Tackling alcohol fuelled violence, http://www.jplangbroek.com/tackling-alcohol-fuelled-violence/

18. See section 96 of the Liquor Act 1992 (Qld) 19. The Office of Liquor and Gaming Regulation, Guideline, Banning Use of Regular Glass,

October 15, 2009, http://www.olgr.qld.gov.au/resources/liquorDocs/OLGR_Guideline_-_Banning_use_of_regular_glass.pdf

20. The Office of Liquor and Gaming Regulation, Glass Ban Update, March 26, 2010, http://www.olgr.qld.gov.au/stories/glass_ban.shtml . Also see Hanna, C., Pubs, casino threatened with glass ban, Brisbane Times, October 5, 2009 and Kellett, C., Stubbies, glasses banned at Queensland pubs and clubs, Brisbane Times, March 5, 2010

21. Hurst, D., Glass ban won’t work: hotels association, Brisbane Times, October 6, 2009 22. Kellett, C., Stubbies, glasses banned at Queensland pubs and clubs, Brisbane Times,

March 5, 2010. Also seeAtfield, C., Venues vindicated - but will the public know?, Brisbane Times, March 5, 2010

23. Law, Justice and Safety Committee, Inquiry into Alcohol-Related Violence - Final Report, Report No. 74, March 2010, http://www.parliament.qld.gov.au/ljsc/view/committees/documents/lc arc/reports/Report%2074.pdf

24. Ibid. See Recommendations 23 & 2425. Ibid. See Recommendation 926. Ibid. See Recommendation 1027. Ibid. See Recommendation 1528. Ibid. See Recommendation 1429. Ibid. See Recommendation 15. Also see Hon. Cameron Dick, MP, Attorney-General and

Minister for Industrial Relations, Community to be given greater say on criminal sentences, Ministerial media statement,February 7, 2010

30. Supra n 21. See Recommendation 1631. O’Connell, R., Woman banned over glassing attack, The West Australian, March 11, 201032. Supra n 21. See Recommendations 43-4633. Ibid. See Recommendations 36-4234. Ibid. See Recommendations 57-6435. Ibid. See Recommendation 1836. Hurst, D., Cops back plan to cut club trading hours, Brisbane Times, March 18, 2010

Skye Growden is a civil/criminal lawyer with the Australian Securities and Investments Commission. She has a Bachelor of Public Policy/Bachelor of Laws (Class I Honours) from James Cook University. She has worked as a Judge’s Associate and Legal Officer at the Director of Public Prosecutions.

Custom Word Search Puzzle

http://www.puzzle-maker.com/cgi-bin/wswo.cgi[7/06/2010 3:55:56 PM]

Y N T F T R U O C Y L I M A F C I R N F

H F N L C W X T I O K M B U X V E D F B

G X E O L R O T I C I L O S V E H D C L

L K M E E B E N E F I C I A R Y E W Z A

D M E C O S N G J X M C P L Y F L V R I

Z F E A O L U F V K E P V L A Y I D Q C

M B R P O N S B I D D U B C L J F F H N

K M G R F F S B A W I N T A I P G S C A

X A A O H G X E X J A O G S C Q E U H N

H R L P G Z Q C N Y T N U W A C I R I I

I R A E A M W S U T I E L Q N E S R L F

H I I R D J G I X C O N L E R A Q O D P

S A T T O J B J S O N R L E G M N G R X

A G P Y P N H S R A P O D T C R S A E W

D E U B T N I V N E I H S E F R I C N I

M H N B I G M U Q V B C V D R M O Y Y L

T Y E H O L T E S T A T O R S M T V Y L

T C R L N Y X B R O T U C E X E Z M I S

R X P S T H G I R L A T N E R A P T U D

B Y L L I O X I A H H F J E W M A L G R

Abuse Executor PropertyAdoption Family Court Solicitor

Beneficiary Financial SurrogacyChildren Marriage Testator

Consent order Mediation ViolenceDe facto Parental rights WillsDivorce Prenuptial agreement


Regular featurePuzzle

Verdict Puzzle

Upcoming Events15 July UQ TC Beirne School of Law Current Legal Issues Seminar: Mr

Glenn Owbridge, Australian Government Solicitor, ‘The Meaning of ‘Market’ in the Trade Practices Act 1974 (Cth)’, contact [email protected].

20 July Justice of the Peace (Qualified) Training Course, Warwick and Brisbane, visit www.justice.qld.gov.au/justice-services for more information.

28 July Bond Univeristy Research Seminar Series: Professor David A Anderson, University of Texas Law School, ‘Speech Rights of Corporations’, 12.30-2.00pm, Bond University Faculty of Law, Level 3, contact [email protected].

2 August Bond Univeristy Researching Teachers Series: Dr Claire Macken, Deakin University, ‘Reasearching Teachers and the 40/40/20 Vision: 3 suggestions to balance a Modern Academic Workdload’, 12.30-2.00pm, Bond University Faculty of Law, Level 3, contact [email protected].

3 August Justice of the Peace (Qualified) Training Course, Roma and Maroochydore, visit www.justice.qld.gov.au/justice-services for more information.

4 August QUT Public Lecture: The Hon Berna Collier, Judge of the Federal Court of Australia, contact [email protected].

10 August Commissioner of Declarations Training Course, Brisbane, visit www.justice.qld.gov.au/justice-services for more information.

22 August Bond University Open Day, Gold Coast, 10.00am-3.00pm, contact [email protected].

27 August Queensland Law Society State Legal Educators Conference, 9.00am-4.00pm, Law Society House, Brisbane, contact [email protected].

1 September Relationship Between the Parliament and the Executive

2 September Commissioner of Declarations Training Course, Robina, visit www.justice.qld.gov.au/justice-services for more information.

2 September Introduction to How Parliament Works

8 September QUT Public Lecture: Prof. Ken Polk, Professor Fellow, Department of Criminology, Melbourne, contact [email protected].

9 September UQ TC Beirne School of Law Current Legal Issues Seminar: Prof. Sarah Derrington, University of Queensland, ‘Aspects of the law of damages’, contact [email protected].

14 September Introduction to How Parliament Works

15 September Relationship Between the Parliament and the Executive

4 October Commissioner of Declarations Training Course, Townsville, visit www.justice.qld.gov.au/justice-services for more information.

6 October QUT Public Lecture: Chief Commissioner Simon Overland, Victoria Police, contact [email protected].

6 October Introduction to How Parliament Works

7 October Relationship Between the Parliament and the Executive

11 October Bond Univeristy Research Seminar Series: Ms Leisha Browning, Bond University, ‘Shiny Happy Professionals – Doctors v Lawyers’, 12.30-2.00pm, Bond University Faculty of Law, Level 3, contact [email protected].

14 October UQ TC Beirne School of Law Current Legal Issues Seminar: Prof. Arie Freiburg AM, Monash University, ‘Sentencing in the context of a sentencing advisory council’, contact [email protected].


Regular feature

Abut: When two pieces of land or other parcels of real property touch each other or share a common border.

Cartel: A group of independent corporations or other entities that join together to fix prices, control distribution, or reduce competition.

Elder Law: An area of law that addresses the legal needs of elderly people, including retirement benefits, estate planning, health care, and other issues.

Gender identity: A person’s self-identified gender, versus their anatomical gender at birth. In some states, it is illegal for employers to discriminate based on gender identity.

Irrevocable trust: A permanent trust. Once it is created, it cannot be revoked, amended, or changed in any way.

Know-how: A particular kind of technical knowledge that may not be confidential but that is needed to accomplish a task.

Mutual: Anything in which both parties have reciprocal rights, understanding, or agreement.

Ouster: 1) Wrongfully excluding someone from property, as when a cotenant changes the locks, preventing another cotenant’s entry. 2) The removal of a public official from office.

Quash: To annul or set aside. A motion to quash asks the judge for an order setting aside or nullifying an action, such as quashing a service of summons when the wrong person was served.

Smoking gun: Slang for evidence that decisively proves a cause.

Usurious: Exceeding the maximum interest rate on a debt that is allowed by law.

Whistleblogger: A whistleblower who raises concerns about a company’s misconduct or wrongdoing on a blog.

Law update: a mix of legal development27 August 2010Law Society House 179 Ann St, Brisbane

State legal educators’’ conference

CriminalJuvenilejustice

Family

International

The 2010 Law Week Hypothetical saw Meshel Laurie — well-known comedian and radio-television personality — guide an expert panel through Jimmy’s story to explore diversionary sentencing options like the drug court and its aims over traditional sentencing options.

To order a free DVD of the event, email [email protected] or call (07) 3238 3941.

You be the judge 4

Meet Jimmy: he’s 26 years old and unemployed. His drug of choice is ice and his biggest worry is nding the cash for another hit. His criminal record is as long as your arm and he’s just been caught again. This time it’s breaking and entering.

What should Jimmy’s punishment be? Will sending him to jail stop him re-offending? Or, with the right help, could Jimmy start to turn his life around?

Order your free Law Week

Hypothetical DVD today!

ISSN 1835-7199 (Print) ISSN 1449-9207 (Online) 2010 … · 2010 Volume 2 ISSN 1835-7199 (Print)...

Documents

Transcript of ISSN 1835-7199 (Print) ISSN 1449-9207 (Online) 2010 … · 2010 Volume 2 ISSN 1835-7199 (Print)...