The Verdict Issue 4 2003 - Queensland Law Society · Welcome to the final edition of The Verdict...

theverdict issue 4 summer 2003

and much morepublished by

court values an unexpected ‘blessing’

paying for baby

kids and negligence

should lawyers be sued?

alternatives for drug offenders

shared parenting: a 50:50 split?

children in detention

all about computer crime

theverdictEditor John TeerdsGraphic Designer Mark Bailey

Published by the Communications Unit of the Queensland Law SocietyManager, Communications Kimberley Brady

QLS Schools and Higher Education ServiceSchools & Community Education Officer Yvette HolmesCommunications Assistant Sharon Armstrong

Contact us via email [email protected], telephone 3842 5816 or fax 3229 4737

issue 4 summer 2003

welcomeWelcome to the final edition of The Verdict for 2003. Our first yearof publication has proven to be a roaring success. We now havemore than 200 high schools, TAFEs and private colleges inQueensland – including hundreds of teachers and thousands ofstudents – keeping up to date with legal issues online through The

Verdict and the Queensland Law Society website.

Our feature article, ‘Paying for Baby – Cattanach v Melchior’,discusses a case that is on the cutting edge of the law. KylieBurns, a solicitor of the Supreme Court of Queensland andlecturer at the School of Law, Griffith University, shows us that “thelaw is not just a sterile thing devoid of moral choices”. Sometimesthe courts, ultimately judges, have to make hard decisions about moral questions andsociety’s values. This ‘novel’ case will go some way toward helping you understand thatjudges often have a ‘ difficult tightrope to walk’ when faced with the responsibility ofanswering the ‘ deeper’ questions.

Congratulations to Hayden Whitaker, from Browns Plains State High School, who was thewinner of our Legal Lingo Labyrinth find-a-word competition. And to all other competitionentrants, what a great effort, keep up the good work! We hope that you enjoy your prizesand will look forward to more challenging competitions and prizes in The Verdict next year.

In our new ‘Students making news’ section, Sam Polson from Brisbane Boys College(BBC) tells us about the college’s inaugural ‘Unlocking the Law’ day. Sam says that the daywas a great success and that it really helped BBC students, giving them direction, valuableinformation and links to research for an independent study which has now beensuccessfully completed by all of the Legal Studies students.

Students, did you win a mooting competition? Did you attend a student legal conference?Did you win a legal essay competition? We want to hear about it! We invite all students tosubmit articles to the ‘Students making news’ section of The Verdict. Let other QueenslandLegal Studies students know what you are doing in your school.

The QLS would like to take this opportunity to say congratulations to all of the graduatingyear 12s in Queensland. The hard work is over (for now). Best of luck for the future inwhatever endeavours you choose. Just remember, if you have chosen to enter the legalprofession, you can contact the QLS for all of your professional needs.

To all of our readers, have a safe and joyful Christmas season and enjoy your holidays. Welook forward to bringing you volumes of quality, up-to-date legal information in 2004.

Enjoy your ‘law zone’ – The Verdict is your link to current law and legal issues.

what’s inside?feature articles

Yvette HolmesSchools & Community Education OfficerQueensland Law Society regular features

students making news

competition winners

the essential links

legal glossary

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Opinions published are not necessary heldby the Queensland Law Society, its Councilor Editor. No responsibility is accepted bythe Queensland Law Society for theaccuracy of information contained ineditorial or advertisements.

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paying for babyCattanach v MelchiorKylie Burns

contributory negligenceand infantsAnthony Wright

feathering their own nestsshould lawyers be sued?Winnie Ma

just treatment?diverting drug-related offendersMelissa Bull

young people and the lawthe law for young people by ageYFS Youth Legal Service

the international crime courtwhat it means to AustraliaMary Hiscock

shared parentingin separated familiesJoanne Stagg-Taylor

the yorta yorta native title casesurvival, revival or impenetrably modern?Simon Young

immigration detentionthe best interests of children?Dr Barbara Hocking & Scott Guy

electronic commerceand crimeDr Alan Davidson

crossbow licensingannounced by governmentYvette Holmes

our constitutional nationstates have constitutions tooJohn Pyke

chroming lawsgo on trialJohn Teerds

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theverdict summer 2003 page 3

by Kylie Burns

paying for babyCattanach v Melchior

Novel new cases in negligence oftenrequire courts to make hard decisionsabout moral questions and society’svalues. They often require courts towork out a monetary value for thingswhich have no intrinsic financial worth.

These cases are on the cutting edge ofthe law and they challenge the courts,showing us that ‘the law’ is not just asterile thing devoid of moral choices.Often, they also show us that judgesare human beings who bring their ownreligious, ethical and moral values totheir decision-making.

Cattanach v Melchior 1, a recent decisionof the High Court of Australia, is such acase. The case concerned whether adoctor was required to pay damages forthe costs of raising a child born after afailed sterilisation of his mother.

Deeper questions arose in the caseabout the value of human life, the roleof parents, the effect of litigation onchildren, whether judges should reflecttheir own religious and moral values intheir decisions, and whether societycan afford to provide compensation insuch cases.

A child is born

In 1992, Dr Cattanach performed atubal ligation sterilisation procedure in aQueensland public hospital on MrsMelchior, who had decided she did notwant any more children.

Tubal ligation involves placing clips oneach fallopian tube so that the ovacannot meet sperm and result in theconception of a child. Mrs Melchior toldDr Cattanach that she believed that herright ovary and fallopian tube had beenremoved when she was 15 during anappendectomy. As it turned out, the rightfallopian tube was still present,2 but DrCattanach clipped only the left fallopiantube. In 1997, at the age of 44, MrsMelchior gave birth to a son, Jordan.

In the Queensland Supreme Court, andthe Queensland Court of Appeal, DrCattanach (and the state ofQueensland, which operated therelevant hospital) was found to havebeen negligent. He was not found liablefor performing the sterilisation surgerynegligently. However he was foundnegligent for failing to advise MrsMelchior that she should take steps tocheck that she no longer had afunctioning right fallopian tube, and thatif she was wrong about that there was arisk she could conceive a child. MrsMelchior recovered damages for herown loss relating to the pregnancy andbirth, including pain and suffering duringand following the pregnancy, and loss ofearnings. Mr Melchior recovered a smallamount for loss of consortium as aresult of his wife’s pregnancy andchildbirth. Loss of consortium is a claimmade by a spouse for the loss ofdomestic services, companionship andsexual relationship suffered when theirhusband or wife is injured. Neither ofthese awards for damages were thesubject of the High Court Appeal.

A claim for Jordan in the High Court

The most contentious aspect of thecase was the claim by the Melchiors forthe costs of raising Jordan. TheMelchiors’ claim was very modest andresulted in an award to them in theQueensland courts of $105,249.33. Thisrepresented the costs of raising Jordanto the age of 18 and included the costsof food, clothing, medical andpharmaceutical needs, child care, travelto and from school, birthday andChristmas presents, and entertainment.

The High Court allowed Dr Cattanachand the state of Queensland specialleave to appeal this issue only. Theyargued that Australian law should notallow a right to recover damages for achild’s upbringing. Subsidiary to this,they argued that, if the law recognised

civil wrongscivil obligations

Kylie Burns BA(Qld)LLB(Hons) (Qld) LLM (QUT)is an associate lecturer atGriffith University School ofLaw. Kylie joined the GriffithUniversity Law School in1995 after a period ofpractice with Allen Allen andHemsley. Before joining theGold Coast staff in January1998, Kylie held positions atthe Nathan Campus includingassociate lecturer, graduateplacement co-ordinator andresearch assistant to theDean of Law. Kylie iscompleting a PhD on the useof social facts in tort cases inthe High Court of Australia.Her research interestsinclude insurance, tort andlegal education, and she is asolicitor of the SupremeCourt of Queensland.


this kind of damages, those damagesought to be reduced or off-set to allowfor the other joys and benefits a childbrings to its parents.

The appeal was dismissed by a slimmajority. Four judges (McHugh J,Gummow J, Kirby J and Callinan J) heldthat the Melchiors should be able torecover the reasonable costs of raisingJordan and that there should be noreduction from those damages.

The majority judges accordingly foundthat Australian law recognised thatdamages could be recovered from adoctor for the upbringing of a child bornafter negligent sterilisation.

Three judges (Gleeson CJ, Hayne J andHeydon J) would have allowed DrCattanach’s appeal on the basis thatAustralian law should not recognisedamages for the upbringing of a child.The majority judges stressed that thenormal principles of recovery ofdamages for breach of duty shouldapply. The normal rules relating todamages for breach of duty allowrecovery for the plaintiff of all losses thatshould have been reasonablyforeseeable to the defendant at the timeof the wrong-doing. Clearly theexistence of a child and the costsassociated with a child ought to becontemplated by a doctor when carryingout sterilisation (the very purpose ofwhich is to avoid the existence of a childand the associated costs).

The majority judges also said thatdamages for the costs of upbringingcould not be discounted by asum that represented the joys andbenefits of a child.

The minority judges relied very much on‘policy’ arguments against recovery.Policy arguments were said to lead to aconclusion that the claim for upbringingwas repellent to the principles underlyingthe moral and ethical fibre of Australianlaw and ought not to be allowed.

Gleeson CJ, also in the minority, reliedon a more principled basis to reject theclaim. He characterised the claim forJordan’s upbringing costs as a claim forpure economic loss. Pure economicloss claims are claims for loss of moneyonly, where there has been no personalinjury or property damage suffered bythe plaintiff leading to the loss.Australian courts are very reluctant toallow recovery for this type of claim andonly allow them in very specific andcontrolled circumstances.

In addition, he considered that allowingdamages in this area would beinconsistent with other existing principlesof law which recognised the ‘family asthe natural and fundamental group unitof society’.

‘Every child is a blessing’ andother moral argumentsA number of policy or moralarguments have traditionally been

advanced to reject claims whichrepresent the costs of raising a childborn following a failed sterilisation.Many of these were supported by theminority judges and rejected by themajority judges. They included:

• Every child is a blessing. Thisincludes arguments that human lifeis sacred and cannot be valued inmoney, and that the preservation offamily relationships is crucial to thewell-being of society. It is argued thatto allow claims such as that inCattanach treats children as thoughthey were commodities, andattempts to place a value upon themas if they were a consumer itemsuch as a DVD player. This argumentis often associated with deepreligious and Christian values.

This argument was rejected by themajority judges, who distinguishedthe life of the child from the lossbeing claimed (the costs associatedwith raising the child), cautionedagainst the courts relying onreligious values in determining thelaw, and noted that judges oftenhave to decide on a monetary valuefor losses that are difficult to place acash value on (for example, the painand suffering of people who havebeen injured).

• Children will be psychologicallydamaged and family relationshipsharmed if a child becomes awarethat its parents have brought a legalaction claiming that the child wasunwanted and a ‘loss’. Accordingly,such actions should not be allowed.This argument was rejected by themajority judges as being purelyspeculative and without evidence,and on the basis that in moderntimes it is difficult to accept thatchildren would not realise that suchcases were brought purely forfinancial compensation for negligentconduct.

• There should be a distinctionbetween the birth of a healthy childand a disabled child. Damages maybe allowed for the extra costs ofraising a disabled child. The majorityjudges rejected this argument on thebasis that it was an arbitrary and out-dated distinction, and rested onoutmoded beliefs about the value ofthe life of the able-bodied versus thelife of the disabled.

civil wrongs & obligations - paying for baby


Should judges rely on their ownmoral and social values?Several months prior to his appointmentto the High Court in February 2003,Justice Heydon gave a speech criticisingjudges who sought to undermine therule of law by, amongst other things,relying on their perceptions of social andcommunity values. He said:

“When judges detect particularcommunity values, whether in theAustralian community or the‘international community’, as supportingtheir reasoning, they may sometimesbecome confused between the valueswhich they think the community actuallyholds and the values which they thinkthe community should hold … Thissuggests that the soignee, fastidious,

civilised, cultured and cultivatedpatricians of the progressive judiciary –our new philosopher-kings andenlightened despots – are in truthapplying the values which they hold.” 3

Somewhat ironically, in one of his firstdecisions as a High Court judge, inCattanach Heydon J relied extensively inhis decision on his analysis ofcommunity values. This included valuesin relation to the intrinsic worth ofhuman life, the preservation of thefamily unit, the encouragement ofsecrecy that children are unplanned toavoid psychological damage to themand the discouragement of parentsbringing unseemly actions disparagingthe worth of their children andexaggerating their loss.

The question of whether judges do, canor should refer to social and communityvalues (sometimes called ‘policy’concerns) in determining the law is anongoing debate in the law. Many arguethat this is not a judge’s role and that itis the role of judges to refer only to‘general principles based on legalvalues’.4 However, in novel and newcases where there is no settled legalprecedent or legal rule, judges willalways have a choice in their decision.

How that choice is made will often, ifnot always, come down to a question ofa judge’s preference for one set ofcompeting social or policy values overanother. As Justice Kirby argued inCattanach, “the common law does notexist in a vacuum. It is expressed byjudges to respond to their perceptionsof the requirement of justice, fairnessand reasonableness in society”.5

As Justice Kirby notes, despite the HighCourt in previous cases6 cautioningagainst reliance on policy in determiningnegligence cases, all members of theHigh Court in Cattanach discuss policyissues as relevant to determining whatlegal rule should be adopted.7

However, as he cautions, it is notconsistent with the rule of law for judgesto “adopt arbitrary departures from basicdoctrine. Least of all may they do so, inour secular society, on the footing oftheir personal religious beliefs or ‘moral’assessments concealed in aninarticulate premise dressed up, anddescribed as legal principle or policy”.8

In other words, judges should beforthright in identifying those policymatters or values on which they rely as

opposed to covertly hiding those valuesby calling them a legal principle or alegal policy.

ConclusionCattanach v Melchior clearlydemonstrates that many of the casesthat come before the High Court aredifficult and novel cases, where there isno clear or compelling legal rule orprecedent. These cases invite, and evenrequire, judges to balance competingsocial and moral values.

This is a difficult tightrope to walk –judges are required not to apply theirown values but to make someassessment of what enduringcommunity values require. Often,judges are required to make thisassessment with little evidence of whatthose values are, and where there areclearly competing values. It is,however, important that judges areexplicit in their reasoning about howthey determine and apply such values.The values are at least then open to beunderstood and debated as opposedto hidden in the language of legalprinciples and legal rules.

PostcriptFollowing media coverage, lobbying bythe medical and insurance professions,and political and community debate ofthe High Court’s decision in Cattanachv Melchior , the Queensand Attorney-General announced that Queenslandwould legislate to disallow claims forthe costs of raising healthy children bornafter negligent failed sterilisation. Theamendment, the Justice and OtherLegislation (Miscellaneous Provisions)Bill 2003, was introduced into theQueensland Parliament on August 21.

notes

1. [2003] HCA 38 (16 July 2003), (2003)199 ALR 131.

2. This was discovered when expertwitnesses for both the plaintif f and thedefendant attended the caesarean birthof Mrs Melchior’s child, Jordan.

3. Justice J D Heydon, “Judicial activism andthe death of the rule of law” (2003)Australian Bar Review 1 at 22.

4. Cattanach v Melchior, at <2> (GleesonCJ).

5. Cat tanach v Melchior, at <106>.

6. For example see Sullivan v Moody (2001)207 CLR 562.

7. Cat tanach v Melchior, at <121-122>.

8. Cat tanach v Melchior, at <137>.

civil wrongs & obligations - paying for baby


by Anthony Wright

contributory negligenceand infants

To what degree are infants responsiblefor their actions? It has generally beenheld in various jurisdictions throughoutAustralia and also the High Court1 thata minor’s duty of care for themselves isnil until about five years of age.

So there is usually no reductionapplicable for contributory negligenceconcerning personal injury claims whenthe plaintiff is yet to attain the age of five.The most important factor in assessingthe appropriate reduction, if any, forcontributory negligence matters involvingminors is the child’s proportionate stateof understanding and knowledge.

A similar process will also apply toclaims involving persons withoutcapacity.2 Here we look at decisionsfrom various jurisdictions and thecomparative reductions for contributorynegligence dependent upon the infant’sage and understanding.

Review of the common law

While it is generally accepted that aminor who is aged five or below will notbe held contributory negligent, there area number of old cases from Englandwhich have held that minors whoare aged between three and four havehad their claims reduced for theirown negligence.3

In contrast, decisions from Australiancourts have been reluctant to holdminors guilty of contributory negligenceuntil at least the age of five. Theyoungest children in Australian courtsfound guilty of contributory negligencehave been in Joseph v Swallow & AriellPty Ltd (1933) 49 CLR 578, where a childaged five years and nine months washeld guilty of contributory negligence forrunning across the street in front of anoncoming vehicle.

Also, in Bullock v Miller (1987) 5 MVR 55,a child aged five and a half had hisdamages reduced by 10 percent forriding his bike onto the road without

paying due care and attention. And inGriffiths v Doolan [1959] Qd R 304, achild of five and a half ran in front a truckand was held 10 percent responsible.

In comparison to Joseph, Bullock andGriffiths (supra), the decision of Beasleyv Marshall (1977) 17 SASR 456 foundthat a child aged four years eightmonths was not negligent when heattempted to cross the roadway andwas struck by a vehicle.

McHale v Watson4 is the primaryauthority for contributory negligence andminors in Australian courts. In McHale vWatson, the proceedings arose from anincident in which the defendant, whowas aged 12 years and two months,threw a metal object which struck theplaintiff in the eye, causing severe injury.

The plaintiff sued for trespass andnegligence. Factually, it was held by thetrial judge that the defendant did notintentionally throw the object directly atthe plaintiff, rather it was thrown at anearby pole which caused the object toricochet at a tangent into the plaintiff’seye. It was held by the High Court,affirming the decision of Windeyer J inthe Victorian Supreme Court, that thedefendant was not negligent. McTeirnanACJ said at paragraph 16 that:

“It was right for the trial judge to take intoaccount Barry’s (the defendant’s) age inconsidering whether he did foresee orought to have foreseen that the so-calleddart might not stick in the post but bedeflected from it towards Susan (theplaintiff) who was in the area of danger inthe event of such occurrence.”

The High Court also said that a child isonly expected to conform to thestandard appropriate for children of thesame age, intelligence and experience. Ifthat child is unlikely or unable tounderstand the likely consequences oftheir actions, negligence cannot beattributed to that child at all.5

Furthermore, McTeirnan ACJ, held the

civil obligations civil wrongs

Anthony Wright, LLB, BBus(Accounting) began workingwith McInnes WilsonLawyers in January 2000and was admitted as asolicitor of the SupremeCourt of Queensland and theHigh Court of Australia in2002. Anthony works withinthe area of insurancelitigation, specifically dealingwith claims involving CTPinsurance, general insurance,public liability, productliability and all matters ofpersonal injury liability. Hehas also worked in generallitigation, includingconstruction disputes withinbuilding contracts,defamation and classactions. He is completing aMaster of Laws inCommercial Law at QUT.Anthony also has a keeninterest in sports law, themanagement of professionalsports people andentertainers, and contractualissues in sports andentertainment agreements.


view that in cases dealing with childrenthey are expected to exercise the degreeof care one would expect, not of theaverage reasonable man, but of a childof the same age and experience.6

Practically, the application of McHale vWatson is quite broad. The difficultyarises dependent on the facts of eachindividual case – does the particularchild have the age, experience andcapacity to appreciate and understandthe consequences of their actions? Thefollowing decisions aim to shed morelight on certain cases and the degreeeach minor was held somewhat liablefor their actions.

In Goode v Thompson & Anor [2001]QSC 287 Ambrose J held a 12-year-oldboy 20 percent responsible for thesevere injuries he sustained when hefailed to keep a proper lookout whilecrossing the road in front of thedefendant’s motor vehicle.

Ambrose J followed the previous

decision of the NSW Court of Appeal inGunning v Fellows (1997) 25 MVR 977. Inthat case, another 12-year-old boy speddown a driveway on his pushbike andout on to the roadway, colliding with thedefendant’s vehicle. The child was held25 percent responsible by way ofcontributory negligence by the trial judgeat first instance. On appeal, thisapportionment was upheld.8

As stated above, the factualcircumstances of each individual casewill dictate the apportionment of liabilitybetween the minor plaintiff and thedefendant. In Mye v Peters [1967] 2NSWR 578, a minor aged five years andeight months was held not to becontributory negligent when he was hitby a vehicle after he had alighted from aschool bus and darted across the road.However, in Rowes Bus Service Pty LtdCowan; Sufong v Cowan (1999) 29 MVR430, a 17-year-old schoolgirl whomoved out from behind a parked busand was struck by an oncoming car had

her damages reduced by 40 percent forcontributory negligence.

The NSW Supreme Court decision9 inMadigan v Hughes & Ors [1999]NSWSC 183 focused on the negligenceattributable to a young boy who was 11years and eight months old when atraffic accident occurred. The infantplaintiff sustained severe injuries whenhe rode his bike across a t-intersectionand was struck by an oncoming vehicle.The child had failed to give way to hisright and had contravened the usualtraffic laws. Abadee J stated that: “Thestandard of care when an infant or childis involved in an accident is an objectiveone to be measured in accordance withthe principles laid down by the HighCourt in McHale v Watson and…Fellows.”10

Important factors were relevant toestablish the degree of responsibility onthe plaintiff’s part. It was held by thecourt that the infant plaintiff was in factquite an experienced rider, his family

civil wrongs & obligations contributory negligence


notes

1 see McHale v Watson (1966) 115 CLR 199.

2 supra No 1 at para 12 McTiernan ACJ; andAmerican Restatement of the Law of Tort para283.

3 In Cass v Edinburgh & District Tramways CoLtd 1909 SC 1068 a boy of three years andeight months was struck by a tram car andheld to be guilty of contributory negligence.

4 supra No 1.

5 Fleming, The Law of Torts, 3rd Edition, 1965 pp117-118.

6 supra No 1 at para 7 McTiernan ACJ.

7 see para 28 at page 9.

8 Beazley JA at 100.

9 Abadee J – Common Law jurisdiction.

10 supra No 9 at para 90.

11 see para 48 of the judgment.

12 [2001] HCA 48.

13 see para 4 of the judgment: the infantplaintiff’s movement out onto the road wasa “darting one”.

14 see para 5 of the judgment.

were all regular and competent bikeriders, he had specific knowledge of theroad rules, he knew of bicycle safetyand that his younger brother, withwhom the plaintiff was riding with at thetime, ‘yelled out’ at him to stop beforeproceeding through the intersection at aspeed of about 20 km/h without givingway. The plaintiff had also, only threeweeks before the accident, completed abike safety course at school. Takingthese factors into consideration, AbadeeJ held that the infant plaintiff was guiltyof contributory negligence and damageswere accordingly reduced by 40 percent.

Also in the NSW Supreme Court, viaDunford J, in Ryan v Pledge [2001]NSWSC 259, an infant plaintiff wasapportioned with 10 percent of thenegligence following a motor vehicleaccident. The plaintiff, who was agednine and a half, had stepped out into thepath of the defendant’s vehicle from anature strip dividing a highway andservice road. Dunford J made animportant point: “The plaintiff was 9½years old… and should have beenaware of the need to be careful when,and to look both ways before, crossinga road, and indeed she had beentaught to do so.”11

Has the defendant breached theduty of care owed to the infant?Further to the decisions referred toabove, there have been instances whenthe plaintiff has failed to establish thatthe defendant has breached their dutyof care. It does not follow that if an infantis struck by a motor vehicle, the infantwill automatically recover from theinsurer of the defendant with somereduction for contributory negligence.

It is imperative, firstly, to considerwhether the defendant has breachedany duty of care owed to the minorplaintiff at all.

The High Court in Derrick v Cheung12

dismissed the plaintiff’s claim in itsentirety on the basis that the defendantwas driving at a speed which was safe,in the circumstances, and that theaccident was an unavoidable one. Theplaintiff, who was aged 21 months atthe time of the accident, suddenlyemerged13 from between two parkedvehicles. The defendant was travelling at10 to 15 km/h less than the speed limitand, as soon as the defendant noticedthe infant on the roadway, she braked.The car skidded into the plaintiff despitethe defendant’s attempts to avoid the

collision. The High Court found that,even if the defendant had been travellingat a slightly lesser speed, the collisionwas an unavoidable one. The defendanthad not breached any duty of care itowed to the infant plaintiff.

The decision of Derrick v Cheung(supra) is not dissimilar to that in theTasmanian Supreme Court finding inJohnson v Johnson (unreported,Underwood J, June 8, 1997). In thatcase a seven and a half year old boywas struck by a motorist when he rodehis bike onto a roadway. The minor washeld to be a ‘ skilled’14 rider. The crucialfinding was that the defendant had notdriven in an unsafe and negligent mannerin the circumstances. He was drivingbelow the speed limit when the childsped out onto the road on his bike.

ConclusionIt can be seen from the variouscommon law decisions above that,dependent upon the factual matrixsurrounding each particular case, thefinding of contributory negligence of aninfant takes into account theunderstanding and knowledge expectedof an infant of the same age. Otherfactors to also consider, particularly inmotor vehicle cases, is the child’sprevious interaction with road rules andthe depth of the child’s knowledge. It isnot implicit that the knowledge of onechild is the same as another child of thesame age. Contributing factors will alsobe the child’s education, familybackground and general knowledge.

At least 1,000 women, mostly from Asia,were being forced to work in Australianbrothels to pay off debts, a Melbourneconference on people trafficking for thesex industry has been told.

The co-ordinator of Project Respect,Kathleen Maltzahn, told the Stop theTraffic II conference that the figure didnot include those women who hadalready paid off their ‘ contracts’ andwere now in the community.

She said that the debts typically rangedfrom $30,000 to $45,000 for Thaiwomen and she had heard of acontract around $80,000 for a Chinesegirl. These were the amounts that itsupposedly cost the traffickers to bringthe women to Australia and housethem.

“Of course, we know that is entirelyinflated,” Ms Maltzahn said. “It’s a formof enslavement, rather than the reasonfor the enslavement.”

The Stop the Traffic II conference, heldon October 23 and 24, was hosted bythe Royal Melbourne Institute ofTechnology, the Human Rights andEqual Opportunity Commission, andProject Respect, an organisationformed to protect the rights of womenin the sex industry.

Ms Maltzahn said that media coveragefollowing an Australian Federal Policeinvestigation into the trafficking ofprostitutes earlier this year had not seena reduction in activity.

“(It) allegedly led to a slow down in thenumber of women coming fromThailand,” she said. However, traffickerssimply changed their tactics and therenow appeared to be more SouthKorean women being brought toAustralia to work as unpaid prostitutes.

“Traffickers are responsive,opportunistic and quick,” she said. “Ifone group of women become tooobvious or too much trouble theychange to another.”

However, she said a new $20 millionFederal Government package targetingthe sex trafficking industry would be aneffective initiative.

in Australian brothels

asian women

enslaved

civil wrongs & obligations contributory negligence


by Winnie Ma

Winnie Ma (LLB Hons, Bond;SJD candidate) is an assistantprofessor at Bond UniversitySchool of Law. She is also anadmitted solicitor of theQueensland Supreme Courtsince 2000 after completingher articles of clerkship withAllens Arthur Robinson inBrisbane. Winnie’s teachingand research interests includeproperty law, conflict of laws(Australian private internationallaw), international trade law, aswell as legal issues concerningher mother country, Taiwan.

feathering their own nestsshould lawyers be sued?

Have you ever watched TV showssuch as Ally McBeal, The Practice, Law& Order, CSI, or even Judge Judy?What about movies such asPhiladelphia, The Firm, Devil’sAdvocate, Red China and Primal Fear?

Most people have seen lawyersarguing in courts – that is, acting as anadvocate or performing advocacy work.For many people, this seems to be themost challenging and rewarding aspectof being a lawyer. But what happens ifthe lawyer stuffs up and the clientloses the case as a result? Can theclient sue the lawyer for badperformance in court?

Advocates’ immunityFor more than two centuries, the shortanswer has been ‘no’. Lawyers haveenjoyed immunity from suit – that is,immunity from litigation forprofessional negligence. Lawyers areimmune from liability in negligence fortheir conduct in court and certainconduct out of court that is connectedwith the court work.

However, in July 2000 the highestcourt in England (the House of Lords)removed advocates’ immunity in Hall vSimons (Arthur JS Hall v Simons [2000]WLR 543). Will the High Court ofAustralia do the same in the future?Hopefully you can start crystal-gazingafter reading this article.

Overview of the issues1 Reasons for advocates’ immunity

– why do we have it?

2 Scope of advocates’ immunity– who and what does it protect?

3 The continuing debate on advocates’immunity – should we keep it orremove it?

Before we start, we need to answersome preliminary questions.

Why should we learnabout advocates’ immunity?Whether or not we want to study law orbecome lawyers, we should all knowsomething about advocates’ immunity.

• As the potential clients, we shouldknow our rights so that we don’t letour lawyers rip us off.

• As conscientious citizens, we shouldbe interested in maintaining the integrityand quality of our legal system.

• The law on advocates’ immunity maysoon change in Australia. So why don’tyou show off by leading the debate?

What does the word‘negligence’ mean?The ‘tort of negligence’ means, if youowe someone a duty to usereasonable skill and care, and you failto do so, then you will be liable for theloss or damage suffered by thatperson as a result of your negligence.

In our context, lawyers may benegligent in giving the wrong advice,raising the wrong arguments in court,or otherwise not doing their jobproperly. Without advocates’ immunity,these lawyers can be sued by theirclients in negligence.

But who does the immunity protect –barristers, solicitors, or both?

How do barristers andsolicitors differ?‘Lawyers’ is the generic term coveringbarristers and solicitors. InQueensland, we have a ‘ dividedprofession’. This means that the legalprofession is divided functionally, withseparate admission requirements,separate records, and separate codesof conduct.

Barristers have been touted as the‘ gladiators of the court room’. They

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present their clients’ cases in court,although they usually deal with theirclients through their instructingsolicitors. Barristers can also writeopinions on any legal matter.

Solicitors, on the other hand, interviewand advise their clients. They gatherevidence and prepare briefs for theirbarristers. However, they can alsoappear in courts to present certaincases. In this sense, solicitors also actas ‘ advocates’. Therefore, advocates’immunity also protects solicitors to theextent of their advocacy work.

How do civil proceedings andcriminal proceedings differ?The table below summarises the maindifferences between these types ofproceedings.

In Hall v Simons, all judges in theHouse of Lords decided to removeadvocates’ immunity in relation to civilproceedings. However, only four out ofthe seven judges were in favour ofremoving the immunity in relation tocriminal proceedings.

The rise and fall of the immunity• Back in 1860, the immunity was

unrestricted.1

• However, since the 1930s, there havebeen a series of negligence casesextending liabilities to professionals.2

These cases queried why lawyers,as compared to other professions,were the only privileged groupimmune from litigation fornegligence.

• In 1967, an English case calledRondel v Worsely3 tested the scopeof the immunity.

• Twenty years later, the HighCourt of Australia confirmed andadopted the English approach inGiannarelli v Wraith.4 The immunitywas held to cover both work doneinside the courtroom, as well aswork done outside the courtroomwhich is intimately connected withthe court work.

• However, in 2000, the English Houseof Lords in Hall v Simons decidedthat the immunity should go away.

Arguments for the immunityMost of the reasons for the immunityare based on public policy.

1 Cab-rank principle

According to Lord Denning (who isone of the most famous andrespected judges in England):

“A barrister cannot pick or choosehis clients… Provided that he ispaid a proper fee… he mustaccept the brief and do all hehonourably can on behalf of hisclient.”5

2 Witness analogy

Advocates’ immunity is consistentwith the immunities enjoyed byother participants in the courtprocess such as witnesses andjudges.

3 Divided loyalty

Lawyers owe a dual duty – to theirclients and to the court. However,their duty to the court isparamount in order to ensure theproper administration of justice.Again in Lord Denning’s words:

“A barrister owes allegiance to ahigher cause. It is the cause oftruth and justice. He must notconsciously misstate the facts. He

must not knowingly conceal thetruth… He must produce all therelevant authorities even those thatare against him.”6

4 Re-litigation ofcollateral proceedings

It is contrary to public interest forthe courts to re-try cases whichhave already been decided byanother court. People should usethe appeal process instead ofsuing their lawyers.

5 Other reasons

In the past, the dignity of the Bar,difficulty of advocacy, and theassumption that barristers cannotsue for their fees have also beenused to justify advocates’immunity.

Arguments against the immunityChanges in social, economic andprofessional circumstances demandreconsidering the justifications for theimmunity.

The cab-rank principle has beenrejected because, in practice, thisprinciple doesn’t require barristers toundertake work which they wouldn’totherwise accept. In any event, thisprinciple can’t justify depriving all clientsof a remedy for negligence.

The witness analogy doesn’t applybecause lawyers differ from witnesses.For instance, lawyers are the onlypeople involved in the court processwho have undertaken a duty of care totheir clients.

With respect to divided loyalty, Hall vSimons decided that lawyers shouldn’tbe unique among professionals.Comparison was made with doctors,who often engage in activities requiringdelicate judgment and divided loyalty.

civil wrongs & obligations - suing a lawyer?

Terminology

Standard of proof

Consequences

Criminal

The accused is‘prosecuted’, ‘ convicted’and ‘punished’ forhis/her crime.

‘Beyond reasonable doubt’

Imprisonment etc

Civil

The ‘ defendant’ is ‘liable’ forcompensation ordamages after being suedby the ‘plaintiff’.

‘On balance of probabilities’

No imprisonment


Thus the question should be, whetherremoving the immunity wouldundermine lawyers’ duty to the court. Ifnot, then the immunity shouldn’t stay.

The law already has rules for preventingre-litigation or collateral challenge. Inany event, floodgate litigation afterabolishing the immunity appearsunlikely in light of the English andAmerican experiences.

Furthermore, there are benefits fromabolishing the immunity. First, justiceand fairness – it will end an exception tothe general rule that there should be aremedy for a wrong. Second, lawyers’exposure to incompetence mayimprove the standard of legal servicesand thereby strengthen the legalprofession. Third, the removal ofimmunity may enhance publicconfidence in the legal system. This isbecause immunity creates theimpression that the law allows lawyersto feather their own nests. According toJustice Wilson in Giannarelli v Wraith:

“Barristers with the connivance of thejudges have built for themselves anivory tower and have lived in it eversince at the expense of their clients.”7

Lawyers aren’t that popular after all.

Scope of the immunityThe above debate shows that we needto weigh up the risks and benefits ofremoving the immunity. It also explainswhy the immunity does not (and

cannot) cover everything that lawyersdo. So what does the immunity cover?

• It covers ‘in-court work’ – that is,participation in court proceedings.Examples include the opening andclosing speeches, examination andcross-examination of witnesses.

• It also covers ‘ out-of-court work’ –that is, work which is ‘intimatelyconnected’ with in-court work, forexample, the drafting of courtdocuments, selection of witnessesand parties, gathering of evidence,and choice of causes of actionand defences.

Since advocacy work is often doneinside the court, it remains controversialas to how much and what type ofwork done outside the court is coveredby the immunity. Some judges don’tlike the ‘intimate connection’ test andmay strike out the ‘ out-of-court work’altogether. For instance, Justice Kirbyhas said:

“I would confine the scope of theimmunity… in respect of in-courtconduct during proceedings before acourt… The ‘intimate connection’ test isimpermissibly vague… it extendsimmunity to situations where it isclearly as unjust as it is unjustifiable.”8

Where is Australia heading?Apart from England, the United Statesand Canada have also abolished orlimited advocates’ immunity. The HighCourt of Australia doesn’t have to

civil wrongs & obligations - suing a lawyer?

follow Hall v Simons, but it maychoose to do so.

Boland v Yates Property CorporationsPty Ltd (1999) 167 ALR 575 is the latestHigh Court case which examinedwhether immunity should continuewithout deciding the question.Although this case predates Hall vSimons, Justice Kirby foreshadowedmost of the arguments against theimmunity raised by the House ofLords. In addition, he also ponderedwhether the immunity should beconfined to criminal proceedings.

Several Australian cases after Hall vSimons also confirm that, until the HighCourt reconsiders the issue, theAustralian law will remain the same asthat laid down in Giannarelli v Wraith.9

For the moment, we can at least beconfident that the Australian courts willnot expand advocate’s immunity anyfurther. The immunity, if any, must existfor the benefit of the public and not forthe lawyers. In light of the followingwarning by Sir Gerard Brennan (theformer High Court Chief Justice) inGiannarelli v Wraith, lawyers will nolonger be able to feather their ownnests under the guise of advocates’immunity – assuming they have evenbeen doing so.

“If lawyers generally were to fail toadhere to the standards of advocacywhich the courts expect and on whichthey rely, there would be no justificationfor the immunity. That hasn’thappened. Hopefully it never will.”10

notes

1. Swinfen v Lord Chensford (1860) 157ER 1436.

2. For examples, Donoghue v Stevenson[1932] AC 562; Hedley Byrne v Heller[1964] AC 465.

3. [1969] 1 AC 191.

4. (1988) 81 ALR 417.

5. Rondel v Worsely [1969] 1 AC 191.

6. Rondel v Worsely [1969] 1 AC 191.

7. Giannarelli v Wraith (1988) 81 ALR 417.

8. Boland v Yates Property Corporation PtyLtd (1999) 167 ALR 575.

9. For examples, Tache v Abboud [2002]VSC 43; Del Borrello v Friedman &Laurie [2001] WASCA 348.

10. Giannarelli v Wraith (1988) 81 ALR 417at 439.


by Melissa Bull

just treatment?diverting drug-related offenders from the CJS

In recent decades rates of imprisonmenthave increased throughout theindustrialised world, and one of thecharacteristics of this increase is thelarge proportion of people whoseimprisonment is linked to their use ofillicit drugs.

While the nature of the relationshipbetween drug use and crimeremains a topic of hot debate,1 it isapparent that punitive responses alonehave been unsuccessful in reducingillegal drug use and associated crime.Moreover, they impact in negativeways on the lives of offenders whohave drug problems.

With significant numbers of drug-relatedcrimes and disillusionment withtraditional criminal justice approaches todrug-using offenders, there has beenrenewed interest in Australia, andelsewhere in the world, in programs thatdivert drug-dependent offenders fromthe criminal justice system intoeducation and treatment programs. Thistrend is based on the view that thesetypes of intervention are more effectivethan punishment in achievingbehavioural change.2

In response to this problem, the Councilof Australian Governments (COAG)introduced a new strategy in April 1999,a key component of which was earlyintervention and prevention through anationally consistent diversion initiative.3

The strategy, known as the Illicit DrugDiversion Initiative, was to provide abasis for implementation of the diversionapproach that would facilitate nationalaction and cooperation while providingstates with the flexibility to respond tolocal priorities and conditions.4

Since the announcement of thenational framework, states haveimplemented a range of diversionaryprograms to suit their local priorities andconditions. So despite COAG’s desirefor consistency, diversionary programs

available in this country differsignificantly across jurisdictions.

A recent national evaluation found that,while the programs implemented underthis initiative were consistent with theprinciples outlined in the nationaldiversion framework, they variedconsiderably in regard to:

• whether they are police-based orcourt-based programs

• their eligibility criteria

• the range of illicit substances covered

• whether police have discretion todivert

• the nature and range of interventionsoffered

• the referral processes andmechanisms

• the penalties for non-compliance. 5

Diversion programsin QueenslandIn Queensland, three types ofdiversionary programs are available: thePolice Diversion Program, the IllicitDrugs Court Diversion Program and atrial drug treatment court program.

In the Police Diversion Program, peoplewho admit to committing a “minordrugs offence”, as defined in legislation,who have no history of violence andwho have not previously been offereddiversion, can be directed to attend aone to two-hour assessment andeducation session with an accreditedprovider. If the person accepts the offerof diversion, they are not charged withthe drug offence. If they do not attendthe assessment and education session,a charge for contravening the directionof a police officer may be raisedagainst them.

The Illicit Drugs Court DiversionProgram is aimed at diverting all eligibleoffenders who appear in the BrisbaneMagistrates and Brisbane Children’s

crime & society

Melissa Bull joined JusticeStudies at QUT in 2002. Beforethat she taught criminology,sociology and policy relatedsubjects in the Law and Artsprograms at the University ofNew England, and mostrecently in the BehaviouralStudies Program at theUniversity of Queensland. Shebegan her career in 1990,working as a research officer atthe Australian Institute ofCriminology in Canberra.Melissa’s current research isconcerned with illicit drugregulation and communitycrime prevention. She has astrong interest in social andpolitical theory, and inparticular, the relationshipbetween theory, policy andpractice in the governanceof crime.


Court charged with possession of asmall amount of an illicit drug forpersonal use. Offenders are directed bythe court to attend a standardisedassessment and education session atan authorised service provider.

Diverted offenders who are identified asdependent on an illicit drug are alsooffered referral to an authorised providerof outpatient treatment programs. TheCourt Diversion Program operatesunder the legislative frameworksdescribed in the Penalties andSentences Act 1992 (QLD) and theJuvenile Justice Act 1992 (QLD).

A trial drug treatment court program isalso available in some areas of the state.It was established under the DrugRehabilitation (Court Diversion) Act 2000(QLD). Intensive Drug RehabilitationOrders (IDROs) are issued to eligibleoffenders who are:

• aged 17 or over

• charged with offences relevantto the program

• free of any outstanding charges fordisqualifying offences, such asoffences involving sexual or othertypes of physical violence

• not presently serving a prison term

• drug-dependent, and able to provethat dependency influencedcommission of the offences

• likely to be imprisoned forthe offences

• willing to plead guilty to the offences

• suitable for intensive drugrehabilitation.

An IDRO involves taking part in adesignated treatment rehabilitationprogram. Breach of conditions of anorder will result in sanctioning and/ortermination of the IDRO whereby theoffender is sentenced for the originaloffence/s. Initially pilot courts wereestablished at the Beenleigh, Ipswichand Southport Magistrates Courts. InNovember, 2002, the trial wasexpanded to Cairns and TownsvilleMagistrates Courts.

Equity and accessThe literature reviewing programs thatdivert drug-related offenders from thecriminal justice system reports relativelyconsistent findings in relation to thestrengths and weaknesses of thesetypes of intervention. In summary,offenders are able to reduce their illicitdrug use and offending behaviour while

engaged in a program. These programshave other positive effects for bothoffenders and the community. It isapparent, however, that somegroups (white men around 30) farebetter than others.

Notable groups who do not appear torespond well to diversion – do notaccept/follow up on assessment, or arenot retained in treatment – include:women, young people, people fromparticular cultural/ethnic backgrounds,indigenous people, and those withmental health problems. This is notsurprising; traditionally these groupshave not been well managed in eitherthe criminal justice or the alcohol andother drug treatment sectors.

While there is some speculation as towhy programs fail to successfullyengage these groups, the diversionliterature offers few suggestions as tohow these groups might be servedbetter. A brief review of the literaturedescribed the following trends.

WomenGreen et al note that women are morelikely than men to experiencecircumstances that interfere with theirability to successfully navigate the drugtreatment process.6 Standardinterventions have been criticised asmale-oriented. Barriers that women facein relation to accessing treatmentinclude: childcare responsibilities,poverty, stigma and inconsistencybetween women’s gender roles anddrug use.

Research has found that womenentering treatment appear to have lesssocial support and more familyresponsibilities than men.7 Womenwere also more likely to faceemployment problems, family issues

and social and psychiatric difficulties. Ingeneral, authors recommend thatspecialised gender-specific programsare needed to address the needs ofwomen, and often these needs includethe needs of their families.8

Young peopleYoung offenders have consistently beenidentified as being at high risk of failurein diversion programs.9 This research isfocused on drug courts. Unlike olderoffenders, young people are removedfrom drug court programs for notshowing up for treatment or meetings,rather than drug use relapse.

Cooper et al argue that this is becausecognitively young people think differentlythan adults, they have limited copingskills, and many have re-occurring mentaldisorders which may not become clearuntil they are well into treatment or whenthe use of drugs has stopped.

Young people need to be motivated tochange – they need to recognise thatpositive developments will occur in theirlives when they do not use drugs; theyhave not yet developed a view of thefuture and punishment doesn’t workwell as a motivator. 10

People from diversecultural backgroundsIn many jurisdictions, the proportion ofcultural and ethnic minorities in drugcourt programs exceeds theirpercentage in the population.11 Finnsuggests that limited success withcultural and minority groups in treatmentprograms may be a result of tensionbetween clients and staff arising inrelation to language difficulties anddifferent or conflicting cultural norms.12

In response to this problem, researchersnote the importance of multilingualstaffing and cultural sensitivity – often inconjunction with sensitivity to otherclient characteristics requiringspecialist attention.13

Indigenous peopleWhile indigenous people oftenexperience problems similar to thosefaced by people from diverse culturalbackgrounds, described above, anumber of authors have suggestedthat particular issues arise for thesepeople as a result of a history ofcolonisation and associated patternsof dependency.14

crime & society just treatment?


Brady argues that, in Canada, culturally-sensitive treatment programs are theresult of increased understanding of thecauses of drug use amongstindigenous people.15 Alati, Peterson andRice and Brady stress the impact ofcolonisation, and acknowledge theresultant disruption of cultural practicesand dispossession.16

notes

1 See T. Makkai, “Linking drugs and criminalactivity: developing an integrated monitoringsystem”, AIC Trends and Issues in Crimeand Criminal Justice, No 109. AustralianInstitute of Criminology, Canberra, 1999a;and T. Makkai, Drugs and Property Crime,ABCI Australian illicit drug report 1997-1998,Canberra: ABCI, 1999b, pp. 105-113.

2 T. Murphy, “Coercing offenders intotreatment: A comprehensive state-widediversion strategy”, Society for the Study ofAddiction Annual Symposium, Leeds,United Kingdom, October, 2000, availableat: www.wa.gov.au/drugwestaus/html/contents/publications/reports_other/speeches (accessed 16/09/2002); and J.Walker, International Experience of DrugCourts, The Scottish Executive CentralResearch Unit, Edinburgh, 2001.

3 Commonwealth Department of Health andAgeing, (2000) Illicit Drug Diversion Initiative,www.nationaldrugstrategy.gov.au/nids/diversion/index.htm [Accessed16/06/2003].

4 ibid

5 Health Outcomes International (HOI) PtyLtd, Evaluation of Council of AustralianGovernments’ Initiatives of Illicit Drugs, FinalReport to Department of Finance andAdministration October 2002, Volume 2 –Diversion Initiatives, Department of Financeand Administration, Canberra, 2003.

6 C.A. Green, M.R. Polen, D.M. Dickinson,F. L. Lunch, M.D. Bennet, M.D., “Genderdifferences in predictors of initiation, retentionand completion in an HMO-basedsubstance abuse treatment program”,Journal of Substance Abuse Treatment, vol.23, 2002, p. 285.

7 K. Freeman, New South Wales Drug Court

Evaluation: Health, Well-Being andParticipant Satisfaction, NSW Bureau ofCrime Statistics & Research, Sydney, 2002.

8 See L. Nelson-Zlupko, and E. Kauffman,“Gender differences in drug addiction andtreatment: implications for social workintervention with substance-abusingwomen”, Social Work, vol. 40, no. 1, 1995,p.45; P. Bean, “Women, drugs and crime”,Chapter 9 in Drugs and Crime, WillanPublishing, Devon. 2002; and H.D. Weiner,M.C. Wallen, G.L. Zankowski, “Culture andsocial class as intervening variables inrelapse prevention with chemicallydependent women”, Journal of Psycho-active Drugs, vol. 22, no. 2, 1990, p.239.

9 J.S. Goldkamp, “Miami’s treatment drugcourt for felony defendants: someimplications of assessment findings”, ThePrison Journal, vol. 73, no. 2,1994, p. 110;R.H. Peters, A.L. Haas, M.R. Murrin,“Predictors of retention and arrest in drugcourts”, National Drug Court InstituteReview, vol. 2, no. 1, 1999, p.33; M.A. Lang,and S. Belenko, “Predicting retention in aresidential drug treatment alternative toprison program”, Journal of SubstanceAbuse Treatment, vol 19, 2000, p. 145; andC. Spohn, “Drug courts and recidivism: theresults of an evaluation using twocomparison groups and multiple indicators ofrecidivism”, Journal of Drug Issues, vol. 31,no.1, 2001, p. 49.

10See C.S. Cooper, M. Nerney, J. Parnham,B. Smith, Juvenile Drug Courts: Where HaveWe Been? Where Should We Be Going?,OJP Drug Court Clearinghouse andTechnical Assistance Project, 2002.

11L.S. Creswell, and E.P. Deschenes, E.P.,“Minority and non-minority perceptions of

drug court program severity andeffectiveness”, Journal of Drug Issues, 31(1),259; Goldkamp, J.S., White, M.D., Robinson,J.B., (2001) “Do drug courts work? Gettinginside the drug court black box”, Journal ofDrug Issues, vol. 31, no. 1, 2001, p.27.

12P. Finn, “Addressing the needs of culturalminorities in drug treatment”, Journal ofSubstance Abuse Treatment, vol. 11, no. 4,1994, p.325.

13C. Spooner, “Causes and correlates ofadolescent drug abuse and implications fortreatment”, Drug and Alcohol Review, vol.18, no. 4, 1999, p.453; C.S. Cooper,“Juvenile drug court programs”, JuvenileAccountability Incentive Block GrantsProgram Bulletin, May, 2001, p.1.

14R. Alati, C. Peterson, P. L. Rice, “Thedevelopment of indigenous substancemisuse services in Australia: beliefs, conflictsand change”, Australian Journal of PrimaryHealth, vol. 6, no. 2, 2000, p.49; M. Brady,“Culture in treatment, culture as treatment: acritical appraisal of developments inaddictions programs for indigenous NorthAmericans and Australians”, Social ScienceMedicine, vol. 41, no. 11, 1995, p.1487.

15M. Brady, 1995, ibid.

16R. Alati, C. Peterson, P. L. Rice, P. L., 2000op cit; M. Brady, 1995 ibid.

17R.T. Weave, M. Hickman, D. Rutter, J. Ward,G. Stimson, A. Renton, “The prevalence andmanagement of co-morbid substancemisuse and mental illness: results of ascreening survey in substance misuse andmental health treatment populations”, Drugand Alcohol Review, vol. 20, 2001, p. 407.

18 ibid.

People with mentalhealth problemsResearch conducted in the UnitedStates, United Kingdom and Australiahas found that the odds of having asubstance misuse disorder aresignificantly higher amongst psychiatricpatients than the general population,and likewise the odds ratio of having apsychiatric disorder is significantly higheramongst patients with substancemisuse disorders.17

Weave et al argue that patientsexperiencing both mental health anddrug problems have complex needs,and highlight the significance ofinteragency collaboration and training forstaff so they will be equipped tomanage such cases.18

ConclusionThere are currently diversion programsfor drug offenders being run in everystate in this country for cannabis andother drug offences. These programsoperate at both the police and non-

police (that is, between charging andjailing) levels.

Diversion programs in Australia rangefrom well-developed and documentedschemes supported by legislationthrough to informal local arrangementsbetween police, alcohol and drugworkers and the courts. Offenderstargeted by these programs include:those facing use and possessioncharges; those whose use has led tooffences while intoxicated, and thosewho have committed offences in orderto support their drug-taking.

Research shows, however, that theseprograms have not been able to engageall offenders. Women, young people,people from diverse ethnic and culturalbackgrounds, indigenous people andthose experiencing mental illness tendnot to access or be retained intreatment. As program retention ispositively correlated with reductions indrug use and drug-related crime, thedevelopment of effective programsmust address the specific needs ofthese groups.

crime & society just treatment?


YFS Youth Legal Service

young people & the lawthe law for young people by age

Youth & Family Service (YFS)was established in 1983essentially servicing juvenilejustice and youthhomelessness needs in LoganCity. This article is the second ina series of articles on youngpeople and the law by the YFSYouth Legal Service.

Important

This page is most relevant to young peoplewho live in or visit Queensland.

This information was correct as of June 2003,BUT laws change all the time and you shouldalways check with a solicitor first. Check theYFS website to see if this information is current.

Disclaimer

Information contained in this publicationshould not be regarded as a substitute forprofessional advice and no responsibility isaccepted for any errors or omissions or anyloss or damage resulting from reliance on this.Please see a solicitor first.

More informationIf you want more information on theseand other laws, talk to a solicitor or trythese web sites.www.yfs.org.au/legalwww.yac.net.auwww.legalaid.qld.gov.auwww.hreoc.gov.auwww.consumer.qld.gov.au

SolicitorsThe solicitor’s role is to do the best jobfor their client. They should also respectthe wishes of the young person. Checkthese out for FREE legal help.

Community Legal Centres offer freelegal assistance where available. Tofind out your closest legal service, youcan phone:

Logan Youth Legal Service3208 8199

Aboriginal & Torres Strait IslanderLegal Service1800 012 25

Youth Advocacy Centre3857 1155

Legal Aid Office1300 651 188

Youth Legal Advocate1300 651 188

Aboriginal & Torres Strait Islander1300 650 143

Private solicitorsSome solicitors can apply for Legal Aidand this may be free.

SmokingIt is an offence to sell cigarettes tosomeone under 18. If you are over 18,it is an offence to give a cigarette tosomeone who is under 18. It will notbe an offence for a parent or guardianto give their children cigarettes. If thepolice or a health service employeewatch you buy cigarettes, they canask you for your name, age andaddress. It is an offence not to giveyour correct details.

AlcoholIf you are under 18, it is against thelaw for a licenced premises to sellyou alcohol. It is an offence for youto pretend to be 18 to buy alcohol. Itis also an offence to drink alcohol ina licensed place if you are under 18. Itis an offence for any person, at anyage, to drink alcohol in a public place(eg. street, footpath, park, mall orshopping centre). It is also illegal tocarry alcohol in public if you areunder 18. It is not against the law foranybody to drink in a private place,even if you are under 18.

GraffitiIt is an offence to put graffiti ontoanything which does not belong toyou, unless you have the permissionof the owner. If the graffiti involvesobscene or indecent language ordrawings, you may get a toughersentence. If the graffiti is on a schoolor other place used for education(university, TAFE) you may also get atougher sentence. If you are inpossession of a “graffiti instrument”(eg. spray can, pen etc) withoutlawful excuse, and there is suspicionthat the instrument has been used orwill be used for unlawful graffiti, youmay be charged for “Possession of agraffiti instrument”.

MarriageIf you are over 16, you may be able toget married if you have your parents’permission. You can get marriedwithout your parents permissionwhen you turn 18.

Criminal chargesYou can be charged for criminaloffences when you turn 10. If you arebetween 10 and 16, you can becharged and taken to childrens’court and if you are found guilty youcan receive a sentence. You can beheld in a youth detention centre if thecharges are serious enough. If youare over 17, then you can be chargedas an adult. If you are found guilty,you will receive an adult sentence andmay end up in an adults’ jail if youpersist in offending or if the chargesare serious enough.

SchoolYou must attend school until you are15. Sometimes you can leave earlier ifyou have permission from theDepartment of Education.

TattoosIt is illegal to tattoo someone if theyare under 18.

you the law & society


by Mary Hiscock

the international crime courtwhat it means to Australia

For several hundred years, it has beena basic rule of our legal system that ‘ allcrime is local’.

For another country to seek to punishconduct not performed within itsborders has been seen as anunacceptable attempt to undermine thesovereignty and authority of thecountry of residence of the personaccused. The era of colonial powerwas perhaps an exception to this, butjustified on the basis that the colonialpower included all its empire within itsown territory.

It was not always so. When theChristian church held sway acrossEurope, the canon law wassupranational, and breaches of canonlaw were tried in church courts, andsubject to appeal outside the countryof origin. Much of our modern criminalprocedure came from church law, butthe Reformation in the 16th Centuryremoved the widespread ambit of thiskind of international criminal law.

The one crime of universal jurisdictionafter that was piracy – armed robberyon the high seas. Any country could try– and usually execute – a personaccused of piracy. But developmentsculminating in this new century havebrought in a new era of internationalcriminal law and procedure.

The new era ofinternational criminal lawAustralia has played a leadership role inthe creation and development of aninternational system of criminal law. In1949 and in 1977, the United Nationsmade a series of treaties (known as theGeneva Conventions) on appropriatestandards of conduct for countries atwar, including the treatment ofprisoners of war, soldiers and civilians.

These treaties gave effect to what hadbeen long understood between states,although perhaps more often

honoured in the breach than in theobservance. Some relate tointernational armed conflicts, others tonon-international conflicts. Australia hasincluded war crimes as an offenceunder the Criminal Code (Cth) 1995.

After World War II, trials were held inNuremberg and Tokyo (and in otherlocations) of those accused of warcrimes. Those convicted were executedor imprisoned for long periods.

These trials were controversial in thatthe only persons accused came fromdefeated enemy countries and theywere tried by the victorious Allies. Itwas also argued that the conduct ofthose accused was considered in theirown countries at the time the relevantacts were committed to be lawful andwithin the policy of the government;and that the conduct was madecriminal only retrospectively. But thetribunals declared that those guilty ofwar crimes could not shelter behindany defence of legality or orders fromsuperiors. They had to take individualresponsibility for their own actions.They had breached a higher law – onecustomarily accepted for centuries.

What was missing in the internationalsystem was a permanent court inwhich persons accused of thesecrimes could be prosecuted.

The International Court of Justice isconcerned only with civil mattersbetween states. The post-World War IIcourts in Tokyo and Nuremberg werecreated specially for a limited purpose,and similar specific courts were set upby resolution of the UN SecurityCouncil in 1993 and 1994 to deal withwar crimes in the former Yugoslaviaand in Rwanda respectively.

Australia has the necessary legalmachinery to participate in thesespecific tribunals in legislation of theFederal Parliament, the International WarCrimes Tribunals Act of 1995.

crime & society

Mary Hiscock, LLB (Hons)(Melb) JD (Chicago), is theEmeritus Professor of Law atthe Bond University LawSchool. She was formerlyReader in Law at theUniversity of Melbourne. Herareas of expertise arecontract law, and international,comparative and commerciallaw, with particular focus onthe developing countries ofAsia and central Europe. Sheis the chairman of theInternational Law Section ofthe Law Council of Australia.


Australians have been involved in thetribunals at The Hague and in Arusha,as judges (former Governor-General SirNinian Stephen), as prosecutors, and inthe administration of the system.

Australian students have also beeninvolved in this work as interns at thecourt in The Hague.

The emergence of theInternational Criminal CourtIn 1998, the countries of the world metat a diplomatic conference in Rome forfive weeks to discuss theestablishment of an internationalcriminal court. The first attempt tocreate such a tribunal had been madeby Gustave Moynier, one of thefounders of the International RedCross, in 1872. The International RedCross, which has a specialresponsibility for internationalhumanitarian law, had beenurging the establishment of this courtfor 130 years.

In Rome, Australia played a prominentrole in chairing a group of countries,the ‘Group of Like-Minded Countries’,that were anxious to see the court setup on a permanent and practical basis.There were more than 60 states in thegroup, and they came from every legaltradition, and every ethnic and religiousgrouping of legal systems.

The text of the statute to establish theInternational Criminal Court (ICC) andthe elements of crimes to beprosecuted were agreed at the

conclusion of the conference. TheAustralian Government committed itselfto support, and the Joint StandingCommittee on Treaties of the AustralianParliament, also recommendedAustralia’s participation in its report inMay 2002.

The International Criminal Court Act 2002was then passed to provide theappropriate relationship for Australianparticipation in the court, in thecreation of procedural and evidentiaryrules, and the administrativeinfrastructure of the ICC.

The Australian defence forces chiefshave remained strong supporters ofthe ICC. Australian forces areinstructed in detail in the obligationsthat they have, wherever they are, toconform to international law in theirconduct. They would be liable toprosecution under Australian law forany breach, even if there were no ICC.

Australia has a very strong system ofmilitary law and justice that applies tothe defence forces wherever they are,together with the legal system thatapplies to all in Australia.

Opposition to the ICC

The United States

The United States has refused toparticipate in the operations of the ICC,and has withdrawn its signature of thestatute and the approval given to it byPresident Clinton. It has also refused toallow its defence forces to serve as UN‘peacemakers’, unless there is an

agreement that no member of the USforces would be liable to prosecutionbefore the ICC. On June 30, 2002, theUN Security Council resolution toextend the mandate of thepeacekeeping mission to Bosnia andHerzegovina was vetoed by the US.There was considerable oppositionamongst Security Council members tothe stance of the US but, given theintransigence of the US, somecompromise had to be found.

The Security Council convened anopen meeting for members, and it wasresolved that no action (includinginvestigation and prosecution) could becommenced against any member ofthe peacekeeping force (from a statenot party to the ICC statute) for aperiod of one year, unless the SecurityCouncil agreed otherwise.

The US is now negotiating a series ofbilateral treaties with states where USforces are based to ensure that thosestates will not seek to use the ICCagainst US forces. There is also awidely-held view that the resolution ofthe Security Council is beyondits powers.

Australia

In Australia, comments have beenpublished suggesting that the ICC’sfoundation is “fundamentally flawed”,and asking why should we “be subjectto an inferior system of justice?”

Others have suggested that “weshould want nothing to do with anycourt on which we may find peopleserving who have never heard of therules of law and would not like it if theydid”, and that “the highest court ofAppeal in Australia should be anAustralian court, not a foreign court in aforeign land, with the power to chargeour brave soldiers with genocide justfor doing their duty”.

The coalition party members ingovernment were deeply dividedbetween those who saw the ICC asbeing in line with Australianinternationalist views held sinceFederation, and those who sawAustralian troops as potential victims ofa politicised court. Federal Cabinetfinally decided – for the third time in fiveyears – to support the ICC, but onlyafter a public and lengthy wrangle.

The Government also sent anaccompanying stipulation with itsformal instruments of ratification of the

crime & society international criminal court


ICC that no Australian would beprosecuted without the consent of theAustralian Government.

So what is all the fuss about?If a person is suspected of a crime inAustralia, Australian law provides the lawthat lays down the essentials of the crime(in statute and case law), the process ofinvestigation, how decisions to prosecuteare made, the rules of criminal procedure(including appeals, a right torepresentation in serious crime, and thelaw of evidence), the range of permissiblepunishments, and the person or personsto exercise the judicial function, eitheralone or with a jury.

In the case of the ICC, so far there is acourt and a statute that has specifiedthe kind of crimes to be tried (warcrimes and crimes against humanity),their elements, and the maximumpenalty of life imprisonment. Theremaining architecture of the system,including the personnel, is still beingdecided by those states which areparties to the statute.

The capacity to participate in thesediscussions was a powerful argumentfor Australia to support the ICC duringits initial stages – settling proceduresand appointing judges and prosecutors.

What are the safeguardsagainst abuse?The way that the court will work hasbeen settled, including the fundamentalprinciples subscribed to by the partiesto the ICC statute.

First, the ICC will not have jurisdictionover any matter that occurred before it

came into existence on July 1, 2002.This means that there can be nodredging back into history to find aclaim arising from past hostilities.Because the ICC is a permanenttribunal, there will not be the sameproblems that have occurred with thetribunals set up for Yugoslavia andBosnia in trying to collect evidence andarrest suspected war criminals.

Subject to this, any person in the worldmay be subject to the ICC, whethertheir countries are parties to the ICCstatute or not.

Secondly, the ICC has a deterrent role.It seeks to introduce a culture ofaccountability for actions, rather thanone of impunity. It represents acondemnation of the horrendouscrimes of genocide and other crimesagainst humanity and, as such, affirmsprinciples of law and moralityespoused for many generations. Itprovides an effective and just way topunish such crimes, wherever andwhenever in the future they occur.

Thirdly, and most importantly, thejurisdiction of the ICC iscomplementary to that of nationaldomestic law. The ICC can try anAustralian only if Australia is “unwillingor unable” to prosecute crimes ofserious international concern. IfAustralia is investigating or prosecutinga crime under our own law, the ICC isconclusively prevented from pursuing it.

All the crimes that are defined withinthe ICC statute are crimes withinAustralian law. The standing andstrength of the Australian legal systemis such that it is extremely unlikely that

any issue of bringing an Australianbefore the ICC could arise.

Finally, the decision to prosecute underthe statute is not one subject topolitical control. Decisions to prosecuteare to be made by the Prosecutor’sOffice of the ICC, and are not subjectto the control of any of the countriesthat are parties to the statute.

The one modification of this principle isthat the Security Council of the UN canvote to restrain the investigation orprosecution of a person for one year,when the matter can be returned to theSecurity Council and it can make asimilar decision. The rationale for this isthat there may be a situationwhere, for example, in order to achievepeace, the Security Council might offeramnesty to a dictator for past crimesagainst humanity. The larger objectiveof peace could be achieved, althoughone person allegedly guilty of warcrimes might go free. This was acompromise struck during thediscussions in Rome before the finaltext of the statute was agreed.

ConclusionThe ICC “is a momentous step forwardfor international justice”. It can help toreduce the misery and the horror of theatrocities that have been perpetrated inour world. It removes the situationwhere countries have stood by in theface of genocide unable to interveneexcept by diplomatic means or byarmed intervention. No one can feelsafely above the law now.

Queensland Police MuseumThe Queensland Police Museumruns a popular education programthat caters for years 5 to 12 and isclosely tied to the current curricula.The majority of their school agedvisitors are in years 10 to 12 andare completing study in ForensicScience, Multi-strand Science andLegal Studies. The lure of ForensicScience to students is strong,hopefully not just because of the

Thursdays at 10.30am, 1.00pm and2.30pm, and on Wednesdays at9.00am, 10.30am, 1.00pm and 2.30pm.

Bookings are essential. Education kitsare posted, faxed or emailed to schoolsafter a booking has been made. Groupsare booked in for periods of 75 minutes.

Please contact Police Museum staff forinformation and bookings on3364 4013 or fax 3236 0954.

type of evidence usually associatedwith this type of scientific investigation,but because it represents an interestingpolice activity and is often at theforefront of technological advancement.

The Police Museum is open Monday toFriday 9am - 4.00pm. Group visits canbe booked for between 30 January and15 December. Informative talks are givento groups visiting on Tuesdays and

crime & society international criminal court


shared parentingin separated families: proposals and practicalities

The Federal Government recentlyannounced that it was considering‘ shared parenting’ schemes for childrenof separated couples. This means that,when parents separate, the childrenwould spend equal amounts of timewith each parent.

The media release1

On June 24, the Federal Attorney-General and Minister for Children andYouth Affairs announced that:

“The Government has todayannounced an inquiry into childcustody arrangements in the event offamily separation... The committeewill be asked to look at what otherfactors should be taken into accountin deciding the respective time eachparent should spend with the childpost-separation, having regard tothe fact that the best interests of thechild are the paramountconsideration. In particular, theCommittee will examine whetherthere should be a presumption that achild will spend equal time with eachparent and, if so, in whatcircumstances such a presumptioncould be rebutted... ”1

When announcing the inquiry inParliament, the Prime Minister, MrHoward, mentioned that it wasregrettable that many young boys weregrowing up without proper malerole models.2

Other sources say that sharedparenting will allow divorcing men to“receive fairer treatment”.3

Current lawWhenever parents separate, theFamily Law Act 1975 (Cth) applies tothe arrangements that they make fortheir children. The Act applies to allchildren, whether their parents weremarried, de facto partners or had neverlived together.

Under the Family Law Act, each parenthas responsibility for their children.4

They are expected to care for theirchildren and make all necessarydecisions for their welfare.

This can only be changed by courtorder. When parents separate, theyeach still have equal responsibilitiestoward each child, even if the child liveswith only one parent.

Many parents make informalarrangements for their children, withoutwritten agreements or going to court. Ifparents can agree, they can makewhatever appropriate arrangements theywish about the care of their children.

If they wish, the parents may make aformal agreement called a ‘parentingplan’. The parenting plan is a writtenagreement between the parents of achild and relates to:

“(a) the person or persons with whoma child is to live;

(b) contact between a child andanother person or other persons;

(c) maintenance of a child;

(d) any other aspect of parentalresponsibility for a child.”5

A parenting plan may be registered inthe Family Court or Federal MagistratesCourt.6 If they wish, parents mayrevoke their parenting plan by making anew agreement in writing.7 A court mayalso change a parenting plan.8

Where parents can’t agree onarrangements for children, they mayseek court orders called ‘parentingorders’.9 (People who are not a child’sparents may also seek parentingorders, for example, grandparents whowant a contact order).10 These ordersmay be made by the Family Court,Federal Magistrates Court or statemagistrates courts.11 In WesternAustralia, parenting orders are made bythe Family Court of Western Australia(a state family court).12

family law

by Joanne Stagg-Taylor

Joanne Stagg-Taylor LLB,MLaw, is a lecturer in thelegal practice course at theQueensland University ofTechnology. She is a barristerand ran her own practice forthree years at the private barin Queensland. She thenworked for the LitigationReform Commission, aGovernment body set up toinvestigate reform of civilprocedure in all Queenslandcourts. After theCommission wasdisbanded, she joined thenative title section ofQueensland Crown Law.


There are four types of parenting orders– residence, contact, maintenance andspecific issues.13

A residence order decides with whoma child is to live.14 (‘ custody order’ wasan old name for a similar type of order).A contact order, formerly called anaccess order, regulates who a childshould regularly visit or contact.15 Amaintenance order forces someone topay money for the maintenance of achild.16 Child maintenance orders arerarely made by the courts, as mostchild maintenance matters are nowdealt with by the CommonwealthGovernment Child Support Agency.The final type of order, a specific issuesorder, is an order about “any otheraspect of parental responsibility for achild”.17 They range from small matterssuch as exchanging school reports tomajor matters like deciding who canmake long-term decisions for a child(for example, religion, schooling, healthcare, etc).

The child’s best interests are the‘paramount consideration’ when thecourt is making parenting orders.18 Thisrecognises the vulnerability of childrenand the importance of protecting them.However, the child’s best interests arenot the only consideration. A parent’s orother person’s interest may also berelevant.19 However, if there is anyconflict between the child’s bestinterests and another person’sinterests, the child’s interests mustalways prevail.

In deciding what is in the child’s bestinterests, the court must consider a listof factors including:

• the child’s wishes

• the nature of the relationship of thechild with parents and others

• the likely effect of changes in thechild’s circumstances

• the practical difficulty and expense ofa child having contact with a parent;

• the capacity of parents to provide forthe needs of the child

• the child’s maturity, sex andbackground

• the need to protect the child fromphysical or psychological harm

• the attitude to the child, and to theresponsibilities of parenthood,demonstrated by each of thechild’s parents

• any family violence

• any family violence order

• whether it would be preferable tomake the order that would be leastlikely to lead to the institution offurther proceedings in relationto the child

• any other fact or circumstance thatthe court thinks is relevant.20

A court hears the evidence of parents,psychologists and other witnessesbefore deciding what will be best for achild. What is best for the child is notnecessarily what the child wants.21

Often one parent is better able to carefor the child. Commonly, the childrenwill live with that parent and visit theother parent. Contact will vary with thecircumstances of the family. A courtwill try to maintain contact between thechild and both parents, unless there arereasons to prevent contact.22

For school-age children, a commonorder would be for a child to havecontact with the non-residential parentevery second weekend and half theschool holidays.

The provisions of the Family Law Act1975 are gender neutral. There is nopresumption in favour of children livingwith their mother. Unfortunately,because of child-rearing patterns in oursociety, many men either don’t haveskills to care for children or do not seekresidence orders (and may not want tolive with their children). However, wheremen seek residence orders, they areoften successful.

In 2000, in contested residenceapplications children were ordered tolive with their father in 40 percent ofcases.23 In many more cases, frequentcontact between the father andchildren was ordered.

Use of shared care ordersUnder the current law, courts mayorder shared care. The usualarrangement for shared parenting isthat children live for a week or fortnightin turn with each parent. They have twohomes, one with each parent. Thechildren may keep clothes andpossessions at each home, or takeitems with them from home to home.Wherever the children are living, theyusually attend the same school.

In 2000-2001, the Family Court orderedshared residence in 2.5 percent ofparenting applications.24 Thesestatistics only include cases where acourt has made an order. It does notinclude the many situations whereparents make parenting plans orinformal agreements.

Shared care is only ordered in a smallminority of cases because it needsspecial conditions to work effectively.25

The children switch homes every weekor fortnight. However, they needcontinuity in many areas of their lives,such as health care, schooling,friendships and possessions. To ensurethat shared care works, each parentmust be able to take the child to theirregular school and social events.

family law separated families


Normally, this requires that the parentslive relatively close to each other and tothe school.

Parents should also be able tocommunicate well, so that both areaware of the children’s ongoing needs.They should be able to treat thechildren and each other with respect,so that the children are not distressedby parental hostility.

Where parents are unable to interactconstructively, shared care is not in thebest interests of their children.Unfortunately, the majority of parentswho seek parenting orders are hurt,bitter and angry. They are unable toagree on the basic care arrangementsfor their children. They may also treateach other badly or violently. They maybe unable to communicate well enoughto make shared parenting work.

Presumptions ofshared parentingIf there was “a presumption that a childwill spend equal time with each parent”and “such a presumption could berebutted”, that would be a fundamentalshift in the law. Currently, a courtconsiders what is best for eachparticular child. There is no legalpresumption that one arrangement isbest for all families. A presumption infavour of shared parenting means thata court would assume that sharedcare was best for the child until it wasproved otherwise (using legallyadmissible evidence). A court wouldnot be able to approach each situationwith an open mind.

In an ideal world, parents would placetheir children’s needs ahead of theirown and share parentingresponsibilities amicably. The FamilyCourt has commented on the benefits

1. Williams, D., (Attorney-General) &Anthony, L., (Minister for Children andYouth Affairs), Government moves aheadon child custody, Media Release,Parliament House, Canberra, 24 June2003

2. Harrington, J., “Shared parenting – Thechild custody debate” Proctor,Queensland Law Society, September2003


4. s61C Family Law Act 1975.


6. s63E Family Law Act 1975.

7. s63D Family Law Act 1975.

8. s63H Family Law Act 1975.



11. ss.31 and 39 Family Law Act 1975.

12. s.30 Family Court Act 1997 (WA) and s41Family Law Act 1975.

13. s64B(2) Family Law Act 1975.

14. s64B(2)(a) Family Law Act 1975.

15. s64B(2)(b) Family Law Act 1975.

16. s64B(2)(c) Family Law Act 1975.

17. s64B(2)(d) Family Law Act 1975.

18. s65E Family Law Act 1975.

19. AMS v AIF (1999) 24 Fam LR 756.

20. s68F Family Law Act 1975.

notes

21. R and R [Children’s Wishes] [2002]FamCA 383

22. Re Patrick : (An Application ConcerningContact) [2002] FamCA 193


24. see the Family Court of Australia websitepage “Residence Order Outcomes -1994-95 to 2000-01” atwww.familycourt.gov.au/court/html/residence_orders.html

25. eg see H and H (1995) FLC ¶92-599

26. Re Patrick : (An Application ConcerningContact) [2002] FamCA 193

27. Harrington, J., “Shared parenting – Thechild custody debate” Proctor,Queensland Law Society, September2003. A high proportion of Family Courtmatters involve a history of domesticviolence. One solicitor stated that 70% oftheir family law files involved domesticviolence.

28. see comments by the Chief Justice ofthe Family Court, Nicholson CJ inNicholson CJ, Managing Family Violencein a Family Cour t Context; LessonsLearned And Challenges To Be Faced,Paper delivered at the Columbus PilotLaunch and Symposium, Perth, Friday 9November 2001

29. For an example see T and S [2001]FamCA 1147

of a child knowing both of his or herparents.26 Shared parenting giveschildren the chance to have closerelationships with both parents. It giveseach parent an equal opportunity tonurture their child.

A presumption of shared parentingshows a parent-centred approach,concerned with maintaining aperception of equal time betweenparents. It assumes that biologicalparents take equal roles in child careand ignores the reality that many

parents may have little role in theirchild’s life. It overlooks the fact thatseparated people are often unable toshare parenting in a way that isbeneficial for the children. They may bebitter, vindictive or unable tocommunicate. There may be domesticviolence, which makes it impossible forshared parenting to be safe.27 Abusiveparents may use the presumption ofshared care to continue to exert powerover their ex-partner.28

By making it a “presumption that achild will spend equal time with eachparent”, it means that a parent whodisagrees must prove sufficientreasons to change the arrangement. Itcan be hard to prove communicationdifficulties and even violence, especiallywhere a parent cannot afford a lawyer.29

Making shared care a presumptionwould stress already dysfunctionalrelationships. It may prove damaging tothe children caught in the middle oftheir parent’s disputes. The currentparenting order regime is more flexibleand appears better able to promote thewelfare of children.

family law separated families


by Simon Young

the yorta yorta native title casesurvival, revival or impenetrably modern?

The High Court native title decision inMembers of the Yorta Yorta AboriginalCommunity v Victoria (2002) 194 ALR538 was handed down to somepage-three media attention inDecember 2002.

However, the decision was moresignificant than its initial receptionmight suggest. This case turned thecourts’ attention from the pressingquestions of ‘ extinguishment’ (bypastoral lease, by freehold etc) to thefundamental issue of what the lawrequires of the Aboriginal communityitself for the survival of its native title.

The Yorta Yorta claim covered landsin the well populated andintensively used Murray River area,and it raised for argument thesignificance, for native title purposes,of very early European settlement andprolonged disruption of the relevantindigenous society.

A Nicholson cartoon in TheAustralian newspaper at the time ofthe decision accurately identified thedifficulty of the task before the YortaYorta community. A sceptical judgelooks from an idealised traditionalnative man (complete with loinclothand fish on spear) to a modernindigenous man in shirt and tie, andasks of the latter: “Prove to me thathe is you!”

After a long and tenacious battle, theYorta Yorta failed. The fate of theirclaim, and the statements of themajority judges on the role of‘tradition’ in native title doctrine, areheavy blows to the aspirations ofindigenous communities mostdirectly and severely affected bycontact with non-indigenous society.And for this reason, they are heavyblows to native title claims anywherein the populated south of theAustralian continent.

The lower court decisions– squatters, petitions andcultural ‘revival’The language of ‘tradition’ featuresprominently in the Australian native titlelegislation and case law. Mostimportantly, s 223(1) of the Native TitleAct 1993 (Cth) defines ‘native title’ asrights and interests in relation to landor waters possessed under ‘traditionallaws acknowledged’ and ‘traditionalcustoms observed’, where therelevant peoples (by those laws andcustoms) have a ‘ connection’ with theland or waters. However there hadbeen little attention to the preciseimplications of this ‘tradition’-focusedapproach, or to its application in thecase of possible loss of ‘tradition’.Then came Yorta Yorta.

In the original trial decision, Olney J((1999) 4(1) AILR 91) attempted toidentify the relevant ‘traditional lawsand customs’ of the originalcommunity – largely by reference tothe writings of an early squatter whohad lived in the area in the 1840s. Hethen reviewed the evidence relating tothe years following – noting the takingup of the land for pastoral purposes,the severe dislocation of theindigenous population andconsiderable reduction in its numbersdue to disease.

He relied particularly on a ‘petition’ tothe Governor signed in 1881 by 42Aborigines, which pointed to the‘precariousness’ of their means ofsubsistence given the taking of‘possession’ of their lands bygovernment and settlers. It expresseda desire for ‘ settling down to moreorderly habits of industry’ and soughta grant of land (apparently for thepurposes of cultivation and theraising of stock).

law & society

Simon Young (BA,LLB(Hons), LLM, AMusA)joined the QUT law facultyafter working as acommercial litigation andadministrative law solicitor inBrisbane. His teaching andresearch interests lieprimarily in public law andindigenous law and policy –particularly native title. He hasco-edited books on nativetitle and administrative law,and is undertaking a PhD oncomparative native title law.He co-designed and teachesthe QUT Master of Laws uniton native title.


Ultimately, Olney J concluded that,before the end of the 19th century, theYorta Yorta’s ancestors had ceasedto occupy their traditional lands inaccordance with their traditional lawsand customs. He said the ‘tide ofhistory’ had washed away any realacknowledgement of traditional lawsand any real observance oftraditional customs. And he addedthat, in this situation, native title couldnot be revived.

Despite this conclusion, which heobviously felt was the end of thestory, the judge did go on to refer tosome contemporary practices of thecommunity – considering them to beessentially revivalist rather than‘traditional’. Attempts at preservationof ‘mounds, middens and scarredtrees’ were considered to be nottraditional, given that these had beenof purely practical value to theoriginal inhabitants.

Contemporary conservation of foodresources was similarly considered tobe not traditional, apparently becausean early squatter had in fact observedwasteful practices. Modern practicesassociated with re-burial of returnedremains were also considered to benot traditional, as was the Yorta Yortapeoples’ extensive involvement inactivities associated with timber andwater conservation in the area.

On the first appeal, a majority of theFull Federal Court ((2001) 110 FCR244)) noted the possible over-restrictiveness of Olney J’s approach.However the judges found this to beimmaterial. They felt that, unless onecould successfully challenge OlneyJ’s finding that the appellants’ancestors had at some point ceasedany real acknowledgment andobservance of traditional laws andcustoms, and ceased to exist as atraditional indigenous community,that finding was ‘fatal’ to the claim.They said there was “more thanadequate evidence” to support thefinding that there was a period duringwhich the relevant community lost itscharacter as a traditional community.

The High Court– society and ‘system’In the High Court, the Yorta Yortasought to shift the focus in theassessment of ‘traditionality’ from thepast to the present. That is, from aclose historical inquiry and carefulsearch for continuity to a focus onpresent law and custom, and asearch simply for some historicalfoundation for it.

The leading High Court judgment(Gleeson CJ, Gummow and HayneJJ) emphasised that native title arosefrom an ‘intersection’ of traditional

laws and customs with the commonlaw – an ‘intersection’ which occurredat the point of Britain’s acquisition ofsovereignty (which here was in 1788).They explained this by saying thatnative title rights and interests mustoriginate in a ‘normative system’, andthat from the change in sovereigntythe Aboriginal ‘normative system’could no longer validly create newrights, duties or interests.

Accordingly, they said that the onlyAboriginal rights or interests whichwould be recognised after thechange in sovereignty were thosethat found their origin inpresovereignty law and custom.Section 223(1) of the Native Title Actwas read accordingly.

Of more direct importance, thejudges also found in the provisions arequirement that the ‘normativesystem’ under which the rights andinterests are claimed (the traditionallaws and customs) must have had a‘ continuous existence and vitality’since sovereignty.

Ultimately, Gleeson CJ, Gummowand Hayne JJ rejected the Yorta Yortaappeal, restating the findings belowthat their forebears had ceased tooccupy their lands in accordance withtraditional laws and customs and thatthere was no evidence that theycontinued to acknowledge andobserve those laws and customs.McHugh J and Callinan J, in separatejudgments, agreed that the appealshould be dismissed.

It would appear that the joint judges’reasoning leaves little room forchange, adaptation or interruption in acommunity’s laws and customs. Itwas suggested at one point that‘ some’ change or interruption would‘not necessarily be fatal’, but noworkable test was stated. There wasrepeated reference to the ‘ difficulty’of such issues and ultimately the testoffered for assessing ‘ change’ wasjust the statute’s own phrasing.Interruption was apparently sought tobe accommodated via the briefclarification that laws and customsmust continue only ‘ substantially’uninterrupted.

There are two big issues here thatinvite some discussion. First, is thestrict ‘point of sovereignty’ approachnecessary and appropriate? Is it rightto absolutely restrict native title in this

law & society native title case

Image reproduced with the kind permission the High Court of Australia


way, such that native title can neverhave accrued after the change insovereignty? A more liberal approach(as in equivalent law in the US) woulddissolve much of the strictness in theAustralian doctrine. It would allow amore up-to-date definition of theinterest and shorten any requirementof constancy and continuity in lawand custom. However the ‘point ofsovereignty’ approach is reasonablywell entrenched in the Australian law.

The second big issue is the questionof whether revival of previously‘ expired’ native title should bedisallowed. In a country properlycommitted to the preservation ofindigenous culture, should thedoctrine of native title withholdentitlements from a communityattempting cultural revival?

Even assuming the legal correctnessof the ‘point of sovereignty’ approachand the non-acceptance of revival,some other difficulties would appearto arise from the reasoning ofGleeson CJ, Gummow and HayneJJ. First, in the space of fiveparagraphs, the judgment bothconfirms the legal nullification of theAboriginal ‘normative’ or ‘law-makingsystem’ (by the acquisition ofsovereignty) and demands itscontinued ‘ existence and vitality’since that time.

Secondly, the judges’ elaboration onthe requirement that the ‘normative

system’ must survive appears to haverested upon a quite staticinterpretation of the notion of‘ society’. Doesn’t a society naturallyevolve and change?

Moreover, if the claim is to anoriginal interest in the nature ofownership (as appeared to be thecase here), should continuity inspecific laws, customs and practicesbe of any relevance?

Gaudron and Kirby JJ, in dissent,took a broader approach to what is‘traditional’, emphasising that a mere‘ spiritual connection’ can be enoughto keep native title alive, andappeared to have a more flexibleunderstanding than the joint majorityjudges of the notion of ‘ society’ or‘community’. They expresslyrecognised the natural evolutionarycapacity of societies andcommunities, and noted that theycould disperse and regroup withoutnecessarily losing traditional lawand custom.

Conclusion:An acceptable doctrine?Whether or not the approach ofGaudron and Kirby JJ (or even somemore liberal version) would haveproduced a different result in YortaYorta, it is clear that a restrictive andoverly-particular approach to‘traditionality’ has profoundimplications for native title claimantsand Aboriginal communities generally.

It would appear to rest upon anunderstanding that Aboriginal cultureis unchanging, and a disregard forthe realities of indigenous survival ina modern western society. Itwithholds from contemporaryAboriginal communities the right todefine their own identity and priorities.It builds a legal doctrine thatrecognises not a right to property assuch, but a right to a way of life – away of life which may be wronglystylised and idealised by the westernlegal system, and which will, in anyevent, be unmaintainable (orirrecoverable) for many contemporaryAboriginal communities.

Accommodation of evolution inindigenous societies is crucial to thedevelopment of our native titledoctrine. Loincloths and fishes onspears should be strictly optional.

The gaol is open Mon-Fri from 9amto 3pm. General admission is $4for adults and $3 concession. Nobooking is required.

Guided tours are available throughbookings only. All of our guidedtours are conducted by ex-prisonofficers that worked at Boggo RoadGaol during its operation. The costfor these is $6 for adults, $4concessions, and $3 for schoolaged children. Teachers do not paywhen bringing a school group in.We will start a tour usually from9am to 2.30 pm. We are flexible,and can make times outsidethese. Tours go for about 1.5 hourswhich also includes a question andanswer period with the tour guide.

We can also offer night tours/weekend tours for visitors. Thesemust also be booked and the costfor these is $10 for adults, $8concession/school aged children,and $6 per student when part of anorganised school group. Schoolsleepovers can also be arrangedby contacting the gaolmanagement.

For school groups, our websitecontains info about the gaol, aswell as a worksheet that can bedownloaded from the site. Thequestions on the worksheet will beanswered by the tour guide atthe gaol.

phone 3846 7423

fax 3846 7134email [email protected]

website www.boggoroadgaol.com.au

boggo road

gaol tours

law & society native title case


immigration detentionthe best interests of children?

We are all familiar with the commonmeaning of the word ‘refugee’. Itsuggests the need to take flight forsomewhere in the world more civilisedthan one’s homeland.

However, when we turn to the law, weconfront a highly ‘technical, legaldefinition’, one tailored to apply, inCrock and Saul’s view, to “a muchnarrower range of people, excluding allbut victims of rather politicised formsof persecution”.1

This is partly because the RefugeeConvention is narrow in its scope. Underthe 1951 Convention, a refugee is:

“Someone who is outside their homecountry and unable or unwilling toreturn because of a well-foundedfear of persecution for reasons ofrace, religion, nationality,membership of a particular socialgroup or political opinion.”

An asylum seeker is a person seekingprotection as a refugee.

In accordance with the definition,under the convention Australia mustprotect refugees on its territoryregardless of whether they enteredAustralia without permission.

We are doubtless more familiar with thepolitical debates about this issue ratherthan the legal ones, but it is to the lawthat we can turn for guidance as to howhuman rights can be achieved for thisdisadvantaged and disenfranchisedgroup of people.

The legal regimeAustralia has established a mandatorydetention regime based upon mode ofarrival to the country. So we have asystem that differentiates betweenpeople based upon how they enteredthe country – their mode of arrival here.

This means that asylum seekers whocome here as tourists or students and

claim refugee status are eligible forbridging visas. They can even get somework and some income support fromthe Government under the AsylumSeekers Assistance Scheme (althoughonly when they seek asylum within 45days of arriving here).2

The point is that those persons can waitout their processing times in thecommunity. They have been throughthe required health and security checksand are hence differentiated from thosewho arrive without permission, whohave over recent months beenconfusingly categorised as ‘boatpeople’, ‘illegal immigrants’, ‘ queuejumpers’, ‘refugees’, ‘ smuggled people’,‘unlawfuls’, ‘ asylum seekers’, etc, withthe official government term being‘unauthorised arrivals.’3

The possession of ‘papers’ is often citedas the justification for the differentialtreatment, but there have been debatesabout the extent to which this issue hasbecome politicised since the sinking ofthe vessel, the Tampa.

B & B & MinisterThe case of B & B & Minister forImmigration & Multicultural & IndigenousAffairs (2003) FamCA 451 (June 19,2003) concerned two children, A and B,who were detained in the Woomeraand, subsequently, the Baxter,Immigration Detention Centres. Thechildren’s mother sought orders, onbehalf of A and B against the Ministerfor Immigration for their release from theBaxter Detention Centre. The Ministerresponded to this application claimingthat, under the Migration 1958 (Cth) andFamily Law 1975 (Cth) Acts, the FamilyLaw Court possessed no jurisdiction tomake orders against a third party, evenif that order was made in the “bestinterests” of the children.

The trial court judge, Dawe J., agreedwith the Minister for Immigration, and

law & society

by Dr Barbara Hocking & Scott Guy

Dr Barbara Hocking is theAssistant Dean of Researchin the Faculty of Law,Queensland University ofTechnology.

Scott Guy is a seniorresearch assistant in the LawFaculty at QUT.


she ruled that the “welfare” jurisdiction ofthe court extended only to the makingof orders for children “of a marriage”. Itdid not extend to orders “over a thirdparty”, such as the Minister forImmigration. Further, Dawe J. also heldthat section 67ZC of the Family Law Actwas a general power, enabling the courtto act in the best interests of the child.

Such a power was subject to thespecific provisions of the Migration Act,which required persons in detention tofirst seek application for their releasefrom the Minister. In short, the FamilyLaw Act was indeed a general statutorypower which was limited by the specificprovisions of the Migration Act and therestrictions imposed by theconstitutional marriage power.

In addition, Dawe J. contended that thecourt could not make orders withrespect to the “best interests” ofchildren situated in South Australia. Priorto the enactment of s 67ZC of theFamily Law Act, she asserted that thecourt did not possess any inherentwelfare jurisdiction over South Australia.On this basis, the “welfare” jurisdictionof the Family Court should be readrestrictively to exclude the NorthernTerritory and South Australia.

In view of this, the judge held that thecourt had no jurisdiction to order theMinister to release A and B.

On appeal, Nicholson CJ, and Ellis andO’ Ryan JJ of the Family Court ofAustralia overturned Dawe J’s decision.According to the judges, at Paragraph206 of the judgement, “the welfarejurisdiction of the Family Court extendsto all aspects of marriage, includingchildren in immigration detention, whereparticular orders sought arise out of, orare sufficiently connected to, marriage”.

In this quotation, it is clear that thejudges are relying on a combinedreading of the incidental and marriagepowers of the Constitution. Such areading enables the court to makeorders against third parties, such as theMinister, where those orders areincidentally connected to the bestinterests of A and B.

Nicholson CJ and O’ Ryan J (with Ellis Jdissenting) therefore held that thecontinued detention of A and B wasconsequently unlawful and that theFamily Court was entitled to seek theirrelease, under their welfare jurisdiction.In this regard, the trial judge, Dawe J.,

erred in finding that the Family Court ofAustralia lacked jurisdiction to hearthe applications.

Further, the children did not appear tohave any means of bringing an end totheir detention and appeared to lack thecapacity to make a request forrepatriation pursuant to s 198 of theMigration Act.

What this decision achieves is toexpand the jurisdiction of the FamilyCourt to include those children held inimmigrant detention centres and who donot hold visas. The judgementeffectively gives the United NationsConvention on the Rights of the Child(UNCROC), which is a schedule to theFamily Law Reform Act, the effect of law.It acknowledges that the Family LawReform Act 1995 is based on theConvention and that the Act enables thecourt to make orders against suchparties as the Minister for Immigration,where these orders arise out of anychildren “of a married relationship”.Previously, in B and B and the FamilyLaw Reform Act 1995 (1997) FLC92-754the Full Court of the Family Court didnot make a definitive comment aboutthe status of children in detention anddid not express a conclusive view on theissue of whether the convention had infact attained the status of law.

It is suggested that the present decisionmight bring about important changes inthe way children and families are to betreated by the court. The decision haseffectively incorporated the UNCROCinto the Family Law Reform Act and, inparticular, into the conception of thebest interests and welfare of the child.Section 65E of the Family Law Act

states that, in deciding whether to makea particular parenting order in relation toa child, a court must regard the bestinterests of the child as theparamount consideration.

Further, the welfare jurisdiction of thecourt is highlighted in s 67ZH. Thecourt, in the present judgement, hasused the United Nations Convention onthe Rights of the Child to interpret theseterms. The convention states in article 3(1) that in all actions concerning children,whether in public or private institutions,the welfare and best interests of thechild shall be the “paramount”consideration. It is clear that the presentcourt’s emphasis on the inherentwelfare jurisdiction of the court to orderthe release of A and B in order to protecttheir best interests has its origins in theUNCROC and the enactment of theFamily Law Reform Act.

The Family Court has thus confirmedthat it has jurisdiction to declare ordersagainst such third parties as the Ministerfor Immigration, in order to seek therelease of children held in detentionwhere this is contrary to their bestinterests. This decision is a significantone, as it highlights the court’sjurisdiction over any child, as well as anyperson, where this affects the welfare ofthe child. Thus, in the future, if childrenwho do not hold visas are compulsorilyheld in detention centres, their interestsand well-being may be subject tojudicial supervision and control. Thecase of B and B and Minister forImmigration and Multicultural andIndigenous Affairs has now clearlyestablished jurisdiction over childrenheld in immigration detention centres.

law & society immigration detention


Other legal issuesyet to be challengedThe specific issue of children in detentionis far from the only legal issue that arisesin the context of Australian immigrationpolicy. There are many other aspects todetention awaiting legal challenge.

Is immigrationdetention punishment?The word detention is in itself usuallyassociated with crime and punishment.Immigration detention appears as a semi-criminal form of incarceration despite thefact that those in detention havecommitted no wrong of that nature.

Whether it is administrative or criminal isunclear. While not defined as prisons, thedetention centres resemble prisons interms of living conditions (Refugee FactSheet No 2: Mandatory Detention). There

are echoes of this blurring of legalboundaries also in the United Kingdom’sresponse to refugees. A report into theUK’s system has characterised thedetention of asylum-seekers as “crossingthe boundary between the criminal andadministrative spheres”.4

This report has argued that some usesof detention blurred the criminal/administrative boundary even further, forexample, when immigration officersjustified administrative detention forpreventative purposes if an asylumseeker had an alleged or admittedcriminal history. Pointing toaspects of the policing of immigration inthe UK, Weber has also urgedcriminologists to recognise immigrationenforcement as involving “criminal-justice-like-powers” and a subjectworthy of criminological analysis.5

Savitri Taylor suggests that subjection ofimmigration detainees (who have notalso been convicted of criminaloffences) to detention which is “at allpunitive in character” would be a breachof their human rights.6 There may be asyet unexplored legal challenges drawingupon Australian law here. A keypossibility is this point made byCrock & Saul:

“If detention is intended to be punitiveand act as a deterrent to other asylumseekers... it is also arguable thatdetention violates Chapter III of theAustralian Constitution, since only acourt is permitted to impose a penaltyon a person.”7

ConclusionWe commenced with the idea that theword refugee is one familiar across theadvanced Western world. It connotesthe need to take flight for somewhere inthe world more civilised and tolerantthan one’s homeland.

notes

1 Mary Crock and Ben Saul, Future SeekersRefugees and the Law in Australia (TheFederation Press, Sydney, 2002), p. 12

2 Ibid., p.

3 Ibid., p. xiv

4 Weber, Leanne and Loraine Gelsthorpe,‘Deciding to Detain: How Decisions to DetainAsylum-Seekers are Made at Ports of Entry’(2000) Institute of Criminology, University ofCambridge).

5 Weber, Leanne, ‘The detention of asylumseekers: 20 reasons why criminologistsshould care’ (Paper forthcoming in CurrentIssues in Criminology, Special issue onasylum seekers, July 2002).

6 Taylor, Savitri, ‘Protecting the Human Rightsof Immigration Detainees in Australia; AnEvaluation of Current AccountabilityMechanisms’ (2000) 22 Sydney Law Review50-92 at p. 54.

7 Crock and Saul, op. cit., p. 95

8 Ibid., p. 4

9 Janet Albrechtsen, ‘Judiciary oversteps themark on immigration’ The Australian 2 July2003: 11

The first case involving a childclaiming to have been traumatisedby the refugee detention systemwas lodged in the NSW SupremeCourt on October 23.

Mohammad Saeed Badraie willtake the action on behalf of hisson, Shayan Badraie, an eight-year-old Iranian boy who spent 17months in refugee detentioncentres and a further five monthsin foster care.

The boy’s lawyers will seekdamages from the Department ofImmigration and MulticulturalAffairs and from AustralianCorrectional Management, whichran the detention centres in whichthe boy was incarcerated.

The case is likely to rekindle thedebate about the legality ofkeeping children in detention.

child takes

over mistreatment in detention centres

That there is a virtual army of peoplefleeing in this way may be less wellknown to those of us in theadvanced liberal democracies. In fact,one out of every 284 people in the worldis a refugee.8

It may also be not well known in Australiathat we receive and respond to only asmall proportion of this worldwidemovement. Refugee numbers in Europeand Canada are far higher.

Despite the criticism of commentatorssuch as Albrechtsen, who haveassessed the Family Court decision asone demonstrating “seizing jurisdiction”which is “judicial empire-building”, and“judicial activism” under which“international law is writ large”,9 theFamily Court decision is one steptowards a jurisprudence of children’srights in Australia.

It causes us to reflect upon theapproach of the Family Court in B & B& Minister as one that implicitlyrecognises the capacity of our nation tocare for and protect many, particularlychildren, in situations that do not involvelong-term incalculable periods ofdetention in isolated immigrationdetention centres.

legal action

law & society immigration detention


electronic commerceand crime

There is no accepted definition ofcomputer crime. It can include thesimple theft of the computer hardware,but more usually it means the use (ormisuse) of computer softwaretechnology to elicit an undesirable resultin data or processing.

Simple unlawful access to a computersystem can be regarded as an offence,and the consequences may include thetransfer of funds or confidentialinformation. Sending an email to place avirus can be unlawful. Persons gainingunlawful access to computers for thesepurposes are typically referred to ashackers (the term cracker refers to ahacker with a malicious intent).

Also, there are other crimes that, whilenot specifically related to computers,can be substantially facilitated by theuse of computers.

Computer crime and theCommonwealth Criminal Code 1995

The increase of electronic commercehas led to increased reliance on theintegrity, security and reliability ofcomputer data and electroniccommunication. With this has come acorresponding increase in cybercrimeactivities such as hacking, virusinfiltration and Internet vandalism.International cybercrime now costscompanies some $3 trillion a year.

The Cybercrime Act 2001 revisits theCommonwealth computer crimeprovisions and increases theinvestigative powers of the FederalPolice. The explanatory memorandumsays that the drafters of the Act tookinto consideration the draft Council ofEurope Convention on Cybercrime(Convention), specifically the 25th draftreleased on December 22, 2000. TheCouncil of Europe released the FinalDraft on June 29, 2001.1

The Act inserts seven computeroffences in the Criminal Code 1995(Cth). The new, updated offences

replace Part VIA of the Crimes Act 1914,which, although only 10 years old,pre-dates existing technology. Theamendments took effect on 21December 2001.

Unauthorised access, modificationor impairment with intent to commita serious offence

Section 477.1 targets those who accessor modify computer data, or impairelectronic communications to or from acomputer without authority, with theintention of committing a seriousoffence defined as an offencepunishable by five or more years’imprisonment. The penalty for thisoffence is a maximum penalty equal tothe maximum penalty for the seriousoffence. For example, if a personhacked into a bank computer andaccessed credit card details with theintention of using the details to obtainmoney, the penalty would beequivalent to the fraud offence(10 years’ imprisonment).

Unauthorised modificationof data to cause impairment

Section 477.2 provides for an offencewhere a person causes anyunauthorised modification of data in acomputer, where the person isreckless as to whether that modificationwill impair data. The penalty is amaximum of 10 years’ imprisonment.The offence covers a range of situations,including a hacker who obtainsunauthorised access to a computersystem and impairs data and a personwho circulates a disk containing acomputer virus which infects aCommonwealth computer.

Unauthorised impairmentof electronic communication

Section 477.3 provides for an offence ofcausing an unauthorised impairment ofelectronic communications to or from acomputer. The penalty for this offence is

technology & the law

by Dr Alan Davidson

Dr Alan Davidson BA(CompSci) LLM (Research)PhD is a solicitor andbarrister with computingscience qualifications. He haspublished extensively on thelaw and computers and is aregular contributor toProctor, the official journal ofthe Queensland Law Society.He is a senior law lecturerwith the T C Beirne School ofLaw at the University ofQueensland.


a maximum of 10 years’ imprisonment.This offence is designed to prohibitstrategies such as “denial of service(DOS) attacks” in which, for example, aservice provider is swamped withuseless messages causing the serviceto be inoperative. This recognises theimportance of Internet communications.

Unauthorised access to, ormodification of, restricted data

Section 478.1 provides for the offence ofcausing unauthorised access to, ormodification of, restricted data held in acomputer. The penalty is a maximum oftwo years’ imprisonment. The offencerelates to unauthorised access ormodification of data protected by apassword or other security feature ratherthan the data itself. The offence targetshackers attempting to circumvent apassword-protected computer system.

Unauthorised impairment of dataheld on a computer disk etc

Section 478.2 provides for the offence ofcausing unauthorised impairment of thereliability, security or operation of anydata held on a Commonwealthcomputer disk, credit card or otherdevice. The penalty is a maximum oftwo years’ imprisonment. This targetsactions such as passing a magnetover a credit card or cutting a computerdisk in half.

Possession, control and supplyof data with intent to commit acomputer offence

Sections 478.3-4 deal with thepossession, control and supply of dataor programs which are intended for usein the commission of a computeroffence. The penalty for each of theseoffences is a maximum of three years’imprisonment. These cover people whopossess, create or trade in programsand technology designed to hack ordamage other computer systems. Forexample, an offence is committedwhere a person possesses a hacking

program or a disk containing acomputer virus with the intention ofusing it to access or damage data.

Investigative powers

The Cybercrime Act enhanced thecriminal investigation powers under theCrimes Act 1914 and Customs Act 1901relating to the search, seizure andcopying of electronically stored data.The large amount of data that can bestored on computers and the use ofsecurity measures, such as encryptionand passwords present particularproblems for investigators. Theenhanced powers are designed toenable police to copy computer dataand examine computer equipment anddisks off-site, and to require assistancefrom the computer owners.

A magistrate may order a person withknowledge of a computer system toprovide information or assistance. Thispower extends to the compulsorydisclosure of passwords, keys, codes,cryptographic and steganographicmethods used to protect information“as is necessary and reasonable”(ss 3E to 3S).

The provisions permit both the DefenceSignals Directorate and AustralianSecurity Intelligence Organisation (ASIS)to hack legally.

Some commentators have describedthe new investigative powers asdraconian and dangerous. Exaggeratedcriticism has been made of theprovisions which make it an offence topossess hacker toolkits, scanners andvirus code, on the basis that these aretools of the trade for security vendors.

Telecommunications offences

Part VIIB of the Crimes Act 1914 (Cth)and Parts 10.6 impact on electroniccommerce by making it an offence tointerfere with telecommunications,including the Internet, computer servicesand computer systems. These partscreate offences for things that include

interference with the delivery of electronicmail or tampering with data messages.

State legislative offences relating tocomputers

There has been no uniform approachtaken in relation to offences relating tothe use of computers in electroniccommerce or otherwise. Every state andterritory legislature has prohibitedunlawful access to a computer.2 OnlyNew South Wales, Queensland,Tasmania and the Australian CapitalTerritory have specific legislation dealingwith damage to computer data.3 Inaddition, there are a range of offencesrelating to the misuse of computers,such as the falsification of documents,dishonest use of computers, fraudulentuse of computers, obtaining propertyby deception and child pornography.4

The Northern Territory has a specificprovision dealing with unlawfulappropriation of access time.5

Internet gambling

The Interactive Gambling Act 2001 (Cth)commenced in full in January 2002. Theregulation of gambling is typically a stateand territory matter. However, theFederal Parliament has power in regardto Internet activities and othercommunications technologies. The Actis the Government’s response tocommunity concern about theincreased availability and easyaccessibility of online gambling.

The Act prohibits the provision ofinteractive gambling to people inAustralia. The prohibition applies tocasino-type gaming, betting on asporting event after it has commenced,and scratch lotteries online. Offencesapply to both Australian and overseasinteractive gambling service providers.Fines of up to $1.1 million per day apply.

The Act prohibits interactive gamblingservices from being provided in Australiaand prohibits Australian-based interactivegambling services from being provided indesignated countries. A complaints-based system is established. A personmay complain to the AustralianBroadcasting Authority (ABA) aboutprohibited Internet gambling content. Ifhosted in Australia and the ABAconsiders that the complaint iswarranted, it must refer the complaint tothe Federal Police. For content hostedoutside Australia, the ABA must alsonotify Internet service providers (ISPs) sothat the ISPs can apply the industry

electronic commerce & crime


standard, such as updating Internetcontent filtering software.

As 99.9 per cent of the gambling siteson the internet are based offshore, theimpact of the Act on access to suchsites will be minimal.

Cyberstalking

Various pieces of state legislation definestalking as continued and intentionalconduct directed at another person thatwould cause a reasonableapprehension of violence or detriment tothe stalked person or another person.‘Cyberstalking’, or stalking online, is notdealt with directly by legislation.However, elements of stalking caninclude use of the Internet, email orother electronic communications toharass or threaten another person. Thebehaviour includes posting impropermessages on bulletin boards,forwarding viruses, threatening oroffensive email, and electronic theft.

The Crimes Acts in most jurisdictionsdescribe stalking in general terms,leaving it to the courts to considerspecific instances such as harassmentby electronic means.6 In Victoria and theNorthern Territory, the offence of stalkingspecifically includes “telephoning,sending electronic messages to, orotherwise contacting, the victim or anyother person”.7 In 1999 the QueenslandCriminal Code was amended to extendstalking to conduct utilising thetelephone, fax, mail, email or othertechnology.8

In the Australian Capital Territory stalkingincludes where the offender“telephones, sends electronic messagesto or otherwise contacts the stalkedperson; sends electronic messagesabout the stalked person to anybodyelse or makes electronic messagesabout the stalked person available toanybody else”.9 However, even if thestalker can be identified, theenforcement of such laws can beproblematic as the offender may not belocated within the jurisdiction.

Technical responses available for theconsumer include:

• blocking and filtering software candelete email or chat-room messages.The criteria used can include thename of the author, certain offensivewords and so on

• sophisticated encryption programscan prevent messages being read byunauthorised people

• digital signatures and certificates canbe used to authenticate the author

• using a gender-neutral name

• changing passwords regularly.

Child pornography

The International Child PornographyConference held in Austria in 1999sought to combat child pornographyand exploitation on the Internet. Initiallythe discussion revolved around theexisting international obligations andcommitments for the protection ofchildren, including the Convention onthe Rights of the Child. The conferencebuilt and acted upon commitmentsundertaken at the Stockholm WorldCongress against the CommercialSexual Exploitation of Children (1996)and ongoing initiatives in many countriesand regions.

The UNICEF-sponsored ‘OptionalProtocol on the Sale of Children, ChildProstitution and Child Pornography’became effective in January 2002.UNICEF estimates that one millionchildren, mainly girls, are forced into themulti-billion dollar commercial sex tradeevery year, including child pornography.To date there are 96 signatories and 22parties to the Optional Protocol. TheOptional Protocol requires criminalisingviolations of children’s rights and callsfor increased public awareness andinternational co-operation.

International approach

Attacks against commercial websites,such as amazon.com, have drawninternational attention to the dangersfaced by the Internet and othercomputer networks. Cyber-criminalsand cyber-terrorists threaten businessand government interests and can causevast damage.

In 2001, the Council of Europe releasedits final Convention on Cybercrime,which is the first multilateral instrumentdrafted to address the problems posedby the spread of criminal activity oncomputer networks.10

See Council of Europe “Convention onCybercrime”, ETS no 185, open forsignature – Budapest. 23 November 2001.

http://conventions.coe.int/treaty/EN/projets/FinalCybercrime.htm

The text is the first international treaty toaddress criminal law and proceduralaspects of various types of offendingbehaviour directed against computersystems, networks or data. It aims to

harmonise national legislation in thisfield, facilitate investigations and allowefficient levels of co-operation betweenthe authorities of different nation states.

The convention includes provision forthe co-ordinated criminalisation ofcomputer hacking and hacking devices,illegal interception of data andinterference with computer systems,computer-related fraud and forgery. Itprohibits online child pornography,including the possession of suchmaterial after downloading, as well asthe reproduction and distribution ofcopyright-protected material. It definesoffences and addresses questionsrelated to the liability of individual andcorporate offenders, and determinesminimum standards for theapplicable penalties.

The convention deals with lawenforcement issues, including thepower to carry out computer searchesand seize computer data, to requiredata-subjects to produce data undertheir control and to preserve or obtainthe expeditious preservation ofvulnerable data by data-subjects. Thesecomputer-specific investigativemeasures will also imply co-operationby telecom operators and Internetservice providers, whose assistance isvital to identify computer criminals andsecure evidence of their misdeeds.

notes

1 http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm

2 NSW, Crimes Act 1900, s 308C; Vic, SummaryOffences Act 1966, s 9A; Qld, Criminal Code1899, s 408D(1); SA, Summary Of fences Act1953, s 44; WA, Criminal Code Act 1913, s440A; Tas, Criminal Code 1924, s 257D; ACT,Crimes Act 1900, s 132; NT, Criminal Code Act1983, s 276B.

3 NSW, Crimes Act 1900, ss 308 and 308I; Qld,Criminal Code 1899, s 408D(2)(3); Tas, CriminalCode 1924, s 257C; ACT, Crimes Act 1900, s133.

4 NSW, Crimes Act 1900, ss 308-308H; Vic,Crimes Act 1953, s 83A; Qld, ss 228 and 408CCriminal Code 1899; Tas, Criminal Code 1924,ss 257B and 257E; ACT, Crimes Act 1900, s134; NT, Criminal Code Act 1983, ss 125A,125B, 222, 276-276F.

5 NT, Criminal Code Act 1983, s 76E.

6 NSW, Crimes Act 1900, s 562AB; SA, CriminalLaw Consolidation Act 1935, s 19AA; WA,Criminal Code Act 1913, s 338E; Tas, CriminalCode 1924, s 192.

7 Vic, Crimes Act 1953, s 21A; NT, CriminalCode Act 1983, s 189.

8 See Qld, Criminal Code (Qld), ss 359A-359F.

9 ACT, Crimes Act 1900, s 35(2)(f), (g) and (h).

10 See Council of Europe Convention onCybercrime, ETS no 185, open for signature –Budapest. 23 November 2001.http://conventions.coe.int/treaty/EN/projets/FinalCybercrime.htm.

electronic commerce & crime


Owning a crossbow without alicence will be an offence underchanges to legislation approved bythe Queensland State Cabinet.

The new laws will ensure crossbowowners are licensed and registeredlike other firearm holders.

The reforms are in line with uniformnational reforms agreed to by allstates and territories.

“Crossbows are lethal weapons, asshown by a string of very seriouscrimes in recent years,” thePremier, Mr Peter Beattie, said.“Very serious crimes involvingcrossbows include the woundingof two high-school girls in NewSouth Wales in April this year, adouble murder in Brisbane inFebruary 1997, a siege in Brisbanein October 2001, a siege in Mackayin June 2000, and the slaughter ofkangaroos at Wacol in July 2001.

“It is sensible to require allcrossbows to be registered, andreasonable to ask owners to provethey have genuine reasons forowning a crossbow.

“The new system will mirror thesystem for firearms. It will bephased in, giving crossbowowners who do not want to gain alicence a chance to dispose of orsell their weapons.”

Other jurisdictions agreed at a Julymeeting to a national approach tocrossbows. The Police Minister, MrTony McGrady, said Queenslandhad responded quickly, becausethe licensing was a sensibleapproach which would enhancecommunity safety and ensure statelaws were consistent with otherstates and territories.”

It is estimated that there areabout 5000 crossbow ownersin Queensland.

“This is not a ban, but rather areclassification of these lethalweapons to ensure they are treatedlike guns,” Mr McGrady said.“Crossbows will be reclassified asCategory M weapons and the costof a licence would be $10 per year.

“The penalty for owning anunlicensed crossbow will be afine of up to $1500 or sixmonths’ imprisonment.

“Owners of crossbows whochoose not to obtain a licence willbe entitled to dispose of or sell theweapon to a licensed person or aweapons dealer.

“It is planned at this stage toimplement the legislationover a 12-month period and a fullregulatory impact statement willbe completed.”

Currently, ‘mini’ crossbows arebanned in Queensland, and anormal crossbow is considered aweapon if it is misused, firedacross private property without theowner’s consent, or carried bysomeone who is alcohol or drug-affected. Mini-crossbows willcontinue to remain on thebanned list.

Crossbows are used for hunting,sporting competitions, and bysome biologists and veterinarians.The Queensland National Parksand Wildlife Service usescrossbows to capture and relocatecrocodiles.

The new crossbow regime will beintroduced through Police Powersand Responsibilities and OtherActs Amendment Bill 2003.

crossbow licensingannounced by government

by Yvette Holmes

Yvette Holmes BA (JusticeStudies), Grad Dip Teaching(Secondary) is the schools& community educationofficer at the QueenslandLaw Society. Before joiningQLS she worked as acommunity correctionalofficer with QueenslandCorrective Services and thena secondary school teacherin Queensland, specialising inlegal studies. She is currentlycompleting a Bachelor ofLaw at QUT.

crime & society


our constitutional nationyes, states have constitutions too – kind of…

When we talk of ‘the Constitution’ inAustralia, we normally think of theCommonwealth Constitution (discussedin the Spring edition of The Verdict onpages 30-32). However, each state has aconstitution as well. As you will seebelow, the state constitutions do nothave quite the same status as theCommonwealth Constitution.

History – from governmentby governors to ‘responsible’governmentEach of the states was founded as aBritish colony, and all except SouthAustralia were, for a good deal of theirearly history, penal colonies. Eachcolony was governed at first bysomeone who was a governor in thefull sense of the word – a Britishmilitary officer or civil servant whoseword was law.

As the number of colonists andespecially free settlers grew, LegislativeCouncils were appointed to advise thegovernors, and Supreme Courts werecreated. Eventually, in the 1850s (1890for Western Australia) a bicameralparliament (one consisting of two‘houses’) was created in each colony.

In some cases, an Act of the BritishParliament authorised the existingLegislative Council to pass an Actcreating the new parliament; in others itwas done directly by a British Act, andin Queensland’s case the parliamentwas first set up by an Order in Councilsigned by Queen Victoria. These Actswere the original Constitution Acts ofthe states.

The colonies already had governors,appointed by British documents, andSupreme Courts, established byseparate Supreme Court Acts. So the19th Century Constitution Acts weremainly about setting up the newbicameral parliaments. Each parliamenthad a ‘lower’ house directly elected by

all the adult male voters, though forsome time the members of the ‘upper’houses (Legislative Councils) in somecolonies were elected only by thosewho owned substantial property, andin other colonies they were nominatedby the governor. Reforms to extendvoting rights to women and to makethe councils democratic took anothercentury or more.

The most significant reform brought inby these original Constitution Acts was‘responsible government’ – instead ofthe governor having real power togovern, the executive power was nowexercised by a Cabinet consisting of aPremier and other Ministers responsibleto the ‘lower’ house of the parliament.

‘Responsibility’ to the house meansthat, if the Ministers lost the support ofthe majority of the house, they had toresign and another Cabinet would beformed. Though this was not spelledout in detail in any of the ConstitutionActs, they all provided that thegovernment could not spend moneyunless it had been ‘ appropriated’ by anAct of Parliament.

This is the ‘ enforcement mechanism’ ofresponsible government – if someonetries to act as a Minister without thesupport of parliament, they will have nomoney to spend, and you just can’t runa government without money.

The power to amendand to restrict amendmentBy the 1850s, the British Governmentwas getting tired of having to draft Billsfor the parliament every time a colonywanted a change to its constitutionalarrangements, so in the new colonialconstitutions the new parliaments weregiven power to amend their ownconstitutions. Queensland tookadvantage of this by voting toabolish its Upper House (LegislativeCouncil) in 1922.

the legal system

by John Pyke

John Pyke has law degreesfrom the University of NewSouth Wales and theUniversity of Sydney. He hastaught constitutional law atMacquarie University andnow teaches it atQueensland University ofTechnology. He has acted asa consultant to the formerElectoral and AdministrativeReview Commission and hasmade frequent submissionsto committees of theQueensland Parliament asthey work on modernisingthe State Constitution. He isdeveloping a web site calledthe Australian ConstitutionalInformation Site,ozconstinfo.freehomepage.com,which includes a web text,under development, calledGovernment Under a Book

of Rules.


However, the British Government hadwanted the last word on a few matters,so there were a few sections providingspecial amendment rules, for examplethat certain amendments would onlybe valid if signed personally by theQueen rather than by the colonialgovernor. The parliaments gradually gotrid of all of the old “imperial veto”provisions, but then in the 20th Centurythey inserted their own specialamendment rules about a few matters.

In Queensland, these rules weresometimes inserted by separate Actscalled Constitution Amendment Acts ofvarious years, so we ended up with amixture of Acts – the Constitution Act1867 and Constitution Amendment Actsdated 1890, 1896, 1922 and 1934. Theoverall effect is that there are now threetypes of amendment that cannot bedone unless the majority of the votersapprove the change at a referendum:

• abolition of the office of governor orrepeal of certain sections relating tothe Queen and the governor –Constitution Act 1867, s 53

• extension of the term of theParliament beyond the maximum ofthree years (as provided originally byConstitution Act Amendment Act1890) - Constitution Act AmendmentAct 1934, s 3

• reinstatement of an ‘upper’ house –Constitution Act Amendment Act1934, s 4.

Otherwise, however, stateconstitutions are “Claytons’constitutions” – they look likeconstitutions and include some of thesorts of things that are in theconstitutions of the Commonwealthand other countries, but they do nothave the special, difficult-to-amend,status that we normally expect aconstitution to have.

State constitutions, then, are a funnymixture of things that can be amendedby an ordinary Act and things that canonly be amended by a specialprocedure – even the members of stateparliaments find them confusing.

Recent developments inQueensland – a more complete,plain-language constitutionAs noted above, for a long timeQueensland’s constitution was spreadover many separate Acts with the word“Constitution” in their title. However,after a process of review extending over

about 10 years, the QueenslandParliament enacted the Constitution ofQueensland 2001, which came intoforce on Queensland Day (June 6)2002. As far as possible, itconsolidates all the sections previouslyscattered about over several Acts intoone document, and re-expresses manyof the traditional pompous phrases inplain English.

As well as defining the Parliament andits powers, the new constitutionmentions the existence of Ministersand the fact that they constitute theCabinet. However, it still does notspell out the relation between Cabinetand Executive Council. [Cabinet isattended by all Ministers, and is wherethe real decisions are made, whileExecutive Council is usually onlyattended by two Ministers whopresent the formal documents to theGovernor for signature.]

The consolidation is incompletebecause the three matters listed in theabove dot points cannot be amended,or even reworded, without areferendum. So the new constitutionstill has to be read with a few sectionsof the Acts of 1867, 1890, and 1934.

Current issuesThe Legal Constitutional andAdministrative Review Committee(LCARC) of the Parliament hascontinued to consider constitutionalissues since the passage of the newconstitution. It has produced threereports dealing with:

• whether things like the conventionsof responsible government and theindependence of the judiciary shouldbe spelled out more clearly;

• whether the whole constitution, notjust the three provisions listed above,should be impossible to amend bythe passage of an ordinary Act, and

• what should be done to ensure thatAboriginals and Torres Strait Islandersare better represented in Parliament.

These reports are all on the Web (linksto them are given in the list of readingsbelow). Some of the recommendationswill need to be approved by areferendum, and the Government hasmade it clear that it does not want tohold a referendum until we again voteon changing to a republic – so the finalconsolidation and modernisation of thestate’s constitution may still be a fewyears away.

Limits on states’ powersimposed by theCommonwealth ConstitutionWhen considering the state constitution(including, as you now know, theremnant sections of the three olderActs), we should not forget that theCommonwealth Constitution imposesmany limits on what states can do.First, it directly prohibits stateparliaments from passing some kindsof laws. Under section 90, they cannotimpose customs or excise duties.There is a reasonable argument that‘excise’ only means those taxes thatgive locally made goods adisadvantage against imports (like a taxon manufacture), but the majority ofthe High Court has held that the termalso includes sales taxes (which affectlocal goods and imports in the sameway) – for the latest decision see Ha vNew South Wales (1997). Thisinterpretation has imposed a very

the legal system our constitutional nation

Parliament House Brisbane c1900

Image reproduced with the kind permission of the BCC. Brisbane Images no. BCC-B120-24743


severe limitation on the states’ ability toraise their own revenue and control theirown finances. As if to rub their financialdependence in, the states (includinglocal government) cannot taxCommonwealth property.

Under section 92, the states cannotinterfere with the freedom of interstatetrade or commerce, in the sense thatthey cannot protect their own tradersfrom competition by traders from otherstates. This applies even if the state istrying to protect its own naturalenvironment, if it happens to do so in away that ‘incidentally’ benefits its owntraders – see Castlemaine Tooheys vSouth Australia (1990) where a law thatencouraged the use of reusable drinkcontainers, but also protectedSouth Australian breweries frominterstate competition, was held invalid.

Under section 117, the states cannotpass laws that discriminate againstresidents of other states. For a long timethe High Court failed to interpret thisstrictly, but in Street v Queensland BarAssociation (1989) the court insistedthat barristers from the south should beallowed to practice in Queensland.

Furthermore, even in areas where astate law would be prima facie valid, itmay be held invalid because it isinconsistent with a Commonwealthlaw. As the Commonwealth passesmore and more laws, the area left forstate regulation shrinks.

A further limit on powers arises, notfrom the express words of theCommonwealth Constitution, but fromits structure. As we saw in the previousissue, the judicial power of theCommonwealth can only be exercisedby independent courts. There is nosimilar separation of power in thestate’s constitution (though this maychange if LCARC’s recommendations,above, are put into effect). However,the High Court has recently held thatthe state supreme courts are part ofthe federal judicial system, andtherefore get some protection from the

Rubin ‘Hurricane’ Carter visitedQueensland in October, receiving anhonorary doctorate from Griffith Universityand presenting a public lecture to almost4000 people.

Mr Carter, who spent more than 20 years inprison for a crime he did not commit, wasrecognised by the university for hiscontribution to civil rights and social justicethroughout the world.

The civil rights campaigner, whose storywas immortalised in the ‘70s hit by BobDylan titled ‘Hurricane’ and, more recently,in the movie of the same name starringDenzel Washington, said he was veryexcited to receive the honorary doctorate.

“When I accept this honorary doctoratedegree from this great university, I do so notwith some abstract appreciation of justicebut rather I do so with the profoundunderstanding that the law is what

Rubin ‘Hurricane’ Carter honoured in Brisbane

Historical documents

For most of the historic documents about thefoundation of the colonies and then theCommonwealth, including the Letters Patentestablishing the Queensland Parliament and theConstitution Act 1867, seewww.foundingdocs.gov.au/places/transcripts/

Queensland’s Constitution

http://constitution.qld.gov.au

The Constitution of Queensland 2001

(including the ‘remnant sections’ of the oldActs): www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ConstofQA01_001.pdf

Cabinet & Executive Council

Detailed explanations of what occurs at Cabinetmeetings and Executive Council meetings canbe found in the handbooks at:www2.premiers.qld.gov.au/governingqld/cabinethandbook/html/foreword.htm

LCARC’s recent reports

Additional specific content issues:http://www.parliament.qld.gov.au/Comdocs/LegalRev/lcar036.pdf

readings and resources

‘Entrenchment’ of constitutional provisions

www.parliament.qld.gov.au/Committees/Comdocs/LegalRev/LCARC041.pdf

Representation of indigenous people

www.parliament.qld.gov.au/Committees/Comdocs/LegalRev/LCARCR043.pdf

Cases

Ha v New South Wales: www.austlii.edu.au/au/cases/cth/high%5fct/unrep268.html

Castlemaine Tooheys Ltd v South Australia:www.austlii.edu.au/au/cases/cth/high%5fct/169clr436.html

Street v Queensland Bar Association:www.austlii.edu.au/au/cases/cth/high%5fct/168clr461.html

(All the judges say very similar things, each intheir own words. You only really need to readone judgment.)

Re Criminal Proceedings Confiscation Act:www.courts.qld.gov.au/qjudgment/QCA%202003/QCA03-249.pdf

Commonwealth Constitution. Theparliament cannot ask a judge of thecourt to exercise power “in a mannerwhich is inconsistent with the essentialcharacter of a court or with the natureof judicial power”.

State politicians and their legal advisersare fond of referring to the state as a‘ sovereign state’, and to the‘ sovereignty’ of the parliament, but theparliament and the Ministers are notsovereign. There are many limits on theirpower. A few of them arise from thestate constitution, but even more arisefrom the Commonwealth Constitution.

separates civilised societies fromuncivilised societies,” Mr Carter said.

“If abused, the law is the enemy of good, butwhen used correctly the law is a weaponagainst evil.”

Griffith University Vice Chancellor ProfessorGlyn Davis said Mr Carter had inspired thework of the Griffith University InnocenceProject, which investigates claims ofwrongful conviction, and other like-mindedorganisations around the world.

“Mr Carter has tirelessly given of himselfthrough a deep-seated commitment tocriminal and social justice,” Professor Davissaid. “For him to continue to give so much,after so much was taken from him, illustratesthe spirit of the man.”

The legal fraternity turned out to both thegala dinner at which Mr Carter wasawarded his honorary doctorate and at thepublic lecture.

Among the 250 guests at the gala dinnerwere Justice Debra Mullins, representativesfrom the Supreme Court of Queensland,the Queensland Law Society andMcCullough Robertson.

During his visit, Mr Carter also metwith Griffith University InnocenceProject students.

the legal system our constitutional nation


legal studies reportbrisbane boys college

Year 12 legal studiesstudents at Brisbane Boys’College took part in theirinaugural ‘Unlocking theLaw’ day on WednesdayJuly 23.

The day, held at the CollegeResource Centre theatre,saw five legal professionalsprovide the students with aninsight into their work.

Jann Taylor (pictured right),of Logan Youth Services,addressed the issues ofjuvenile justice and humanrights. Her presentationcontrasted the lives of manyBBC boys with those insituations where thepractical application of lawis an everyday business.

Next was David Keatinge(pictured right), from theforensic unit of theQueensland Police Service,who gave a detailed andprofessional presentation onthe use of forensic technology in thepolice service.

Joanne Lewis, for the Self-Health forWorkers in the Queensland SexIndustry, addressed theeffectiveness of prostitution laws inQueensland, and gave aninspirational first-hand account of herexperiences within the industry.

The students then listened intently toAlex Poulos, from Poulos Lawyers.Mr Poulos addressed the issue ofsport and environmental law, andalso gave the group a brief insightinto the legalities of propertydevelopment and the challengessurrounding such activities.

After lunch, Rebecca Shearman, fromChildren By Choice, spoke to thegroup on the effectiveness, history

and obstacles in relation to abortionlaw in Queensland and Australia.

The day, held by BBC and facilitatedby legal studies coordinator CherylDimmock, was a great success andwas a huge help in giving studentsdirection, valuable information andlinks to research for an independentstudy, which has now beensuccessfully completed by all79 students.

Importantly, the day also gave aninsightful glimpse into many areas oflaw that the course would normallynot deal with and provided a goodopportunity for exposure to the legalworld for all students involved.Thanks must go to all speakers whomade the day so successful and thecollege looks forward to hosting thisworthwhile event again in 2004.

by Sam Polsen

Sam Polsen is the schoolcaptain of Brisbane BoysCollege, which is located atToowong in Brisbane.

making news


The Queensland Government hasapproved a 12-month trial of lawsdesigned to help children whomisuse volatile substances, apractice known as ‘ chroming’.

The trial, expected to begin beforenext July, will allow police in parts ofinner-Brisbane, Townsville, Cairns andMount Isa to take people misusingvolatile substances to a safe placesuch as a home or hospital.

The Premier, Mr Peter Beattie, andthe Police Minister, Mr TonyMcGrady, said State Cabinet hadalso approved changes to enablepolice to search people for itemsused for abusing volatilesubstances, and to seize the items.

“Inhaling substances like petrol,glue, chrome-based paint and nail-polish remover takes a heart-breaking toll on children andteenagers,” Mr Beattie said.“Chroming can kill. It can causeheart failure, choking, suffocation;damage the liver, kidneys and centralnervous system; and lead tomemory loss, permanent hearingloss and depression.

“We are giving police more power toprotect children from themselves –because, tragically, some childrenhave no-one else to protect them.

“Currently, police can only seizeitems used for chroming if they arevisible, even when police andcommunity members know childrenare chroming.

“Giving police the ability to searchfor chroming items could help saveyoung lives. This is about removinga young person from danger.

“It will mean police can step in whenthey see someone misusing – orhigh on – volatile substances, andtake them to a safe place like a

relative’s or friend’s home, a hospitalor a rehabilitation centre.”

Mr Beattie said the Crime andMisconduct Commission wouldevaluate the trial, and then Cabinetwould consider whether the trialshould be extended statewide.

Mr McGrady plans to introduce a Billinto State Parliament in late Octoberto provide for the trial, and thesearch and seizure powers.

He said guidelines would bedeveloped by the PoliceCommissioner to ensure policeunderstood the trial was designed tokeep young people out of thecriminal justice system.

“Let me make this clear, we are nothanding out criminal records tothese young people,” Mr McGradysaid. “This is a protective strategy.

“A person will not be forced to stayat a place of safety, nor will policebe able to detain them indefinitely ortake them to a watchhouse.

“Keeping kids alive is our top priority– keeping them out of the criminaljustice system is another priority.”

Mr McGrady said police wouldmaintain a register of those taken toa safe place, so that patterns ofabuse could be determined and thetrial properly evaluated.

The safe place trial will begin beforeJuly 2004 after police guidelines aredrafted and regulations aredeveloped to set the boundaries ofthe trial and establish thepolice register.

The trial and the new search andseizure powers will be enacted viathe Police Powers andResponsibilities and Other ActsAmendment Bill 2003.

chroming lawsgo on trial

by John Teerds

John Teerds is publicationseditor for the Queensland LawSociety, with responsibility forThe Verdict, the members’magazine Proctor, and otherpublications. He is a journalistwho has worked onnewspapers such as TheCourier-Mail, The Sunday Mailand The Age, Melbourne. Hecreated and edited TheSunday Mail’s popular TVScene magazine (now knownas TV Guide), and alsolaunched Multi-CAD Magazine,a national computer-aideddesign publication forarchitects, engineers andproduct designers.

crime & society


Mackay State High School is thewinner of the annual QLS SchoolConflict Resolution & Mediation(SCRAM) Competition for 2003.Mackay’s team contested the finalwith West Moreton Anglican Collegeat Law Society House and won$4,000 in prizemoney for their school.

In this year’s mediation scenario, fourfriends had to make a choice. Dothey admit to an incident that upsetmembers of the public on a localtrain and thereby cause all thestudents who travel on the train to getdetention? Or do they admit to theincident and accept what could be asevere punishment? The studentteams role-played the characters andprovided mediators to resolve theconflict. Mackay will now representQueensland against state winnersfrom New South Wales, the ACT andVictoria at the national SCRAM final inSydney on 31 October.

mackay state high’s mediatorsare the best

The winning team from Mackay are all smiles as they take home their winning $4,000 cheque. Fromleft are: Brittany Taylor, Bridget Griffith, Amelia Taylor, Marla Costavever, Vivenne Taylor, NatashaSalty and teacher Cheryl Bryan.

Congratulations to Hayden Whitakerfrom Browns Plains State High School,the winner of our find-a-wordcompetition. Hayden navigated his waythrough the Legal Lingo Labyrinth with100% accuracy, showing an impressiveresearch ability and knowledge of legalterminology. Well done Hayden!

Hayden receives a $100 cash prize forhimself and a free subscription to theQLS Schools and Higher EducationService for his school, valued at $220.

All entries will receive a consolation prize.

find a word competetion winnerHayden Whitaker

Students can look forward to morechallenging competitions and prizes inThe Verdict next year.

competition winners


the essential linksfamily law information

internet sites

Courts

Family Court of Australiawww.familycourt.gov.au

Provides step-by-step guides toproceedings in the Family Court, andincludes a wide range of information. Partof the site is dedicated to student resourcematerial and information for children.

Federal Magistrates Servicewww.fms.gov.au

The majority of cases heard by the FederalMagistrates Court relate to family law andchild support.

Queensland Government

Department of Familieswww.families.qld.gov.au/

The Department provides a range ofservices relating to adoptions, child care,families, domestic violence, youngoffenders, seniors, the homeless andpeople with disabilities.

Legal Aid Queenslandwww.legalaid.qld.gov.au/gateway.asp?c=legalinfo

The Legal Aid Queensland site provideslegal information summaries on a range oftopics, including family law.

Commonwealth Government

Family Law Onlinewww.familylaw.gov.au/

The site is designed to give quick and easyaccess to information on the Australianfamily law system and referral information.Topics covered include alternatives to goingto court, relationships, property and gettinglegal help.

Department of Families and CommunityServiceswww.facs.gov.au/

Information is provided on the Departmentand its programs, policies, publications,legislation and research.

Child Support Agency Australiawww.csa.gov.au/

A good starting point for information on theregulation of child support. Includesinformation on how child support works andhow it is calculated and collected.Categorises information for parents;employers; the legal profession andcommunity organisations.

Australian Organisations

Family Law Council of Australia152.91.15.12/www/flcHome.nsf

The Family Law Council of Australia advisesand makes recommendations to theCommonwealth Attorney-General onmatters relating to family law, including theoperation of the Family Law Act 1975 andrelated legislation.

Law Council of Australia Family LawSectionwww.familylawsection.org.au

The family law section of the Law Council ofAustralia is the professional association forpractising family lawyers in Australia. The‘Family Law and You’ section of the websiteprovides overviews for the public onproperty disputes, child support,separation and divorce, parenting ordersand family lawyers.

Australian Institute of Family Studieswww.aifs.org.au

The Institute is an Australian Governmentresearch and information agencyestablished to promote the identification andunderstanding of factors affecting maritaland family stability in Australia.

Statistics

Statistical snapshot of Family Law2000-2001 (Family Law Council)www.ag.gov.au/www/flcHome.nsf

Family Facts and Figures (Aust Instituteof Family Studies)www.aifs.org.au/institute/info/charts/menu.html

Families, Children and CommunityStatistics (Australian Bureau ofStatistics)www.abs.gov.au

Click on ‘Themes’. Then click on ‘Families,Children and Community’

Journals

Family Matters (Australian Institute ofFamily Studies)www.aifs.org.au/institute/pubs/fammats.html

Family Law Portals

Weblawhttp://weblaw.edu.au/weblaw/display_page.phtml?WebLaw_Page=Family+Law

AustLII – Family Law Linkswww.worldlii.org/catalog/105.html

WordLII – Family Law Linkswww.worldlii.org/catalog/2406.html

Law Foundation of NSW - Family LawGuidewww3.lawfoundation.net.au/links/weblaw_family.html

Cases

Family Court of Australia Judgmentswww.familycourt.gov.au/html/judgments.html

Family Court of Australia Decisions(AustLII)www.austlii.edu.au/au/cases/cth/family_ct/

Federal Magistrates Court ServiceJudgmentswww.fms.gov.au/judge/index.html

Federal Magistrates Court of AustraliaDecisions (AustLII)www.austlii.edu.au/au/cases/cth/FMCA/


glossary of terms

glossary

sources

Complete Wordfinder, Published byReader’s Digest Association Limited,London.

Concise Australian Legal Dictionary 2nd

Edition, Published by Butterworths,Australia.

SearchSecurit y.comhttp://searchsecurity.techtarget.com/

The ITsecurit y.com Dictionary+ ofInformation Securit ywww.ITsecurity.com/dictionary/dictionary.htm

AppellantA party who appeals against a judicialdecision which is not in their favour.

Contributory negligenceA plea in mitigation (reduction) ofdamages corresponding to the blameof the plaintiff. In other words, asituation in which it is argued that theplaintiff should take someresponsibility for the event or accidentwhich led to the court action.

CryptographyDefined as ‘the science and study ofsecret writing’, cryptography concernsthe ways in which communicationsand data can be encoded to preventdisclosure of their contents througheavesdropping or messageinterception, using codes, ciphers, andother methods, so that only certainpeople can see the real message. –Yaman Akdeniz, Cryptography &Encryption, August, 1996

DefendantA person against whom courtproceedings are brought.

PlaintiffA person who brings, or initiates, acourt action in a civil case.

Policy decisionA decision or judgement of a courtfounded principally on considerationsof public policy expressed in legislationor judicial decisions, or formulated tomeet new conditions. It takes intoaccount matters of public morals,health, safety and welfare.

SteganographyPronounced STEHG-uh-NAH-gruhf-ee, from Greek steganos, or ‘ covered’,and graphie, or ‘writing’, is the hiding ofa secret message within an ordinarymessage and the extraction of it at itsdestination. Steganography takescryptography a step farther by hidingan encrypted message so that no onesuspects it exists. Ideally, anyonescanning your data will not notice that itcontains encrypted data.

Welfare jurisdictionThe Family Court has wide jurisdictionto make orders for the welfare of achild. Orders made by the FamilyCourt relating to the welfare of a childare intended to safeguard and advancethe physical and emotional well-beingof the child. Welfare is not restricted tomaterial well-being but includes thechild’s health, spiritual well-being, andhappiness.

The Verdict Issue 4 2003 - Queensland Law Society · Welcome to the final edition of The Verdict...

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Transcript of The Verdict Issue 4 2003 - Queensland Law Society · Welcome to the final edition of The Verdict...