Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
The Senate Community Affairs Legislation Committee reported on its consideration of the Child Support Legislation Amendment Bill (No 2) 2000 on I 0 October 2000. One week after its introduction in the House of Representatives, the Bill was referred to the Committee by the Senate on 6 September. The Committee held a public hearing on 4 October 2000. There has been strong criticism of the speed of the process, the lack of broad community consultation and insufficient publicity of the Committee's call for submissions, especially given the potential impact of the amendments on some well established principles of family law including case law and the Family Law Act 1975 (Cth).
Among other things, the Bill will change the current child support payment formula, by lowering the cap on non-resident parents' taxable income and by providing for the reduction of child support formula percentages where a non-resident parent has contact with his or her children for between I 0 and 30 per cent of the time. Both Labor's minority report and the Democrats' dissenting view observed that the measures would result in reduced income support for resident parents.
In its public hearing the Committee heard that the package '... seeks to pro vide a fairer basis for determining assistance to children of second families and particularly to encourage parents to maintain contact with their children ...' However, a number of submissions, particularly those from community and women's legal groups and family law practitioners, challenge this claim with criticism of the overt link between child support and contact that would be created by the proposed amendments. An unwelcome consequence is likely to be increased disputes over contact which are based on financial concerns rather than the best interests of the children. This link is of particular concern in the context of domestic violence where it may provide an additional financial incentive for violent men to pursue 'un reasonable' contact. There was also strong criticism of the proposed change to the current requirement that supporting documents must be provided to the other party if an application to depart from the child assessment formula is made. The new requirement could effectively deny natural justice to the other party in relation to such an application.
The overall effect is that the Bill appears to favour the non-resident parent's ability to minimise the amount of their income which is subject to assessment. However, the specifics of how the Child Support Agency will verify claims about levels of contact and second family obligations are not yet clear. For example, the amendment encourages a non-resident parent to reduce their obligation to their first family in circumstances where there are support obligations to a second family. How ever, there is no requirement to obtain a court order or other proof that a financial obligation to the second family actually exists. Coupled with the removal of the disclosure provisions, mentioned above, the cards are being increasingly stacked against the resident parent's ability to receive a fair level of support in relation to the ability of the non-resident parent to pay. • FD
Self government came to the ACT (reluctantly in some quarters) in May 1989, and ever since there has been a steady devel opment of the Territory's services and facilities to reflect both its independence from the federal government and its sta tus as nigh unto a State. Even though some of the features of self government are still unclear (for example, law enforcement is undertaken by a division of the Australian Federal Police that is still ultimately responsible to a federal minister) there has been a focus on developing what are seen to be essential facilities. In our society, this includes prisons.
The ACT government has decided that we should now look to having our own penal institution, and one of the main arguments is persuasive: that it is unreasonable for ACT residents who serve prison sentences to be transported to a NSW gaol-ostracising them even more. A countervailing argument is the maxim expounded by Alexander Pater son that 'wherever prisons are built, courts will make use of them' (in Coyle, A. The Prisons We Deserve, p.l7).
Amongst community groups there has been the necessary stocktake of political realities: penal institutions will continue to exist despite being, inevitably, destructive and inhumane places. The ACT Attorney-General has had the presence of mind to put a large number of issues regarding the prison to a broad range of community groups. We have seen our task as constructive participation in this consultation process on the 'Community Panel' appointed by the Attorney-General. The Panel has separated into three groups, each looking at a discrete area of prison functions and accountability mechanisms: governance, liaison and programs. In addition, the local Council of Social Services has convened a Community Coalition on Corrective Services to explore and consolidate community opinion on the prison.
The role of the Community Panel would have been enhanced had the government, not already decided, in effect, that the prison should be privately run. Although the government has said it has an open mind on this issue, it is impossible to give this much credibility when the ACT corrective services bureaucracy has been forbidden to bid for the project. It is possible that another public corrective services entity will apply (for example, NSW Corrective Services), but if they were successful it would still be on 'private' basis-there would be a contract between the ACT and NSW Corrective Services. Further, NSW Corrective Services cannot be responsible through the ACT Executive to the
ACT Legislature.
One of the most important issues has been the question of women prisoners being accommodated in a joint facility -it being highly unlikely that a separate facility would be constructed given the relatively small numbers (10 women currently in prison, none in maximum security). The ACT Prison Women's Working Group produced a position paper which called for a separate policy unit within ACT Corrective Services so as to ensure consistent and appropriate policy. Any facility should have an emphasis on a residential rehabilitation model (that could be feasibily separated from the men's facility) so as to take account of the specific needs of women as primary carers and the differences in women's and men's criminal behaviour.
The Community Coalition on Corrective Services has been looking at the vexed question of private prisons and accountability. We were fortunate to hear from Nick Seddon on this issue, and were also made aware of a very informative paper by Liz Curran 'Un locking The Doors on Transparency And Accountability' (Current Issues in Criminal Justice, Vol 11 No 2, at 135). Some of the key issues are: proper and detailed specifications in any contract; accessibility of the contract and performance-related data; the possible role of administrative law principles and the law of contract in ensuring accountability; and the appointment of suitable public officers to oversee implementation and performance. Of course, the fundamental question remains: should such a fundamental exercise of state power and responsibility be contracted out? In the context of self government it seems ironic that a government would seek to develop its role as a self-governing political entity only to contract out state power.
A final report from the Community Panel is expected later this year and at that stage citizens will have more detailed information to consider. At the very least, this writer's view is that a select committee of the Legislature should have continuing oversight of any prison regardless of whether it is to be publicly or privately run. • JD
Stardate 2713.5. Episode 'Miri'. The crew of the Starship Enterprise arrive on a planet duplicating Earth of the 1960s. The planet is populated by chil dren. The enemy are known as 'Grups'. The 'Grups', all now dead, have made a world in which the lives of children are in peril. The children, of course, are saved by the new 'Grups' from the Enterprise.
If Jim Kirk and those children returned to NSW in recent weeks what would they make of a couple of court decisions affecting kids, not to mention a related court action in the USA? Are we 'Grups' still dangerous?
In the first case, a 17-year-old student diagnosed with ADHD (Attention Deficit Hyperactivity Disorder) went to the Supreme Court seeking to overturn a decision of the Board of Studies denying him extra time to do his HSC exams. The Board had a policy allowing extra time in such cases, and while the student's doctor and school principal recommended the extra time the request was refused. The policy provided for a five-minute break for each half an hour, but extra time was allowed if students could demonstrate reading and writing difficulties. The student tested normal for his reading and writing skills.
Diagnoses and treatment of ADHA are attracting controversy in the USA, where reports tell of a class action being taken against the American Psychiatric Association and the manufacturers of the drug Ritalin, alleging ADHD was an invented condition so as to increase the sales of Ritalin. The word 'conspiracy' was used in the allegations. On the basis of 'whatever they are for I'm against' whose side to take might be a problematic choice in the USA class action, as it appears the Scientologists line up on the side of the anti-ADHD forces.
In the second case, the President of the Industrial Relations Commission (IRC) has rejected an application by the combined forces of News Ltd, Fairfax and Channel 9 to reveal the name of a teacher convicted and punished for sexual intercourse with a 15-year-old in 1988. The name was being sought in connection with the Child Protection (Prohibited Employment) Act 1998 (NSW), which makes it an offence to employ, in jobs connected with children, any person who has been convicted of certain offences related to sexual activity or indecency. There is power for the IRC to exempt a prohibited person from the Act if the person does not pose a risk to the safety of children (s.9(4)).
Both the school and its headmaster provided references in favour of the teacher, and until the substantive hearing on 8 December, the name of the teacher is suppressed. Does anyone care about the impact on the children if a media feeding frenzy starts?
The Child Protection (Prohibited Employment) Act is required to be reviewed in 2003 (s.16) to test if its policy objectives are being met. Let's hope someone asks kids for their views. My 17-year-old son's support was with the teacher and, more especially, with his fellow students, if the teacher was any good. This reporter considers tort law provides a more just and efficient means of regulating the issues in both of the above two cases than the cumber some provisions of unenforced symbolic legislation or the byways of administrative law.
As James Tiberius Kirk said to the children he encountered in 'Miri': 'I'm a grup and I want to help or there wont be anything left at all'. All very well in the 23rd century but what about now? • PW
The Territory Infringement Notice Enforcement (TINES) scheme provides for the imprisonment of people who have failed to respond to on-the-spot tickets issued for various minor offences. Under the scheme, countless people (well, the government may have counted them but they won't give anyone the figures), almost all of them Aboriginal, have been imprisoned without proof or admission of guilt, without a court hearing or order and without, in many cases, the faintest idea of what it was they were supposed to have done to warrant incarceration. It is believed that over 70% of the women gaoled in the NT over the last two years were imprisoned on TINES warrants.
The validity of the TINES scheme was challenged on Christmas Eve 1999 by the Central Australian Aboriginal Legal Aid Service acting on behalf of a suicidal man whose family had sought police assistance, only to have him locked up on an outstanding TINES warrant. Needless to say, this police response did not mitigate the suicidal tendencies of the man, who was, how ever, immediately released by way of a Supreme Court writ of habeas corpus. After several months of intermittent proceedings, the solicitors for the NT government have now advised the Court that that they will not seek to have the applicant returned to prison, that the entire TINES scheme has been suspended, and that the NT is in the pro cess of drafting a new scheme which will be 'fairer'. Not, it must be said, that they've conceded there's anything wrong with the current scheme. • RG
Contrary to the Chief Minister's view that some people would be 'rubbing their hands in glee', the death of a young boy in custody early this year was the realisation of the worst fears of opponents of mandatory sentencing.
The current Inquest into the boy's death unfortunately seems to confirm other concerns. It may be found that the boy should not even have been in detention. The lawyer representing the boy's family at the Inquiry has told the Coroner that the boy was sentenced under mandatory sentencing when the Victim-Offender Conferencing Program (VOCP) was an alternative. However, the option was not discussed or considered in the court appearance. The boy's lawyer said that he was not aware that the VOCP was available at the boy's home of Groote Eylandt and the Probation and Parole Officer said no one from Groote Eylandt has been referred to the VOCP, although it has been available since August 1999. (For further comment on the VOCP see Justice Restored? In this issue.) • FH
Age of conversion for Fraser?
When do we begin to mellow? At what point do we look back with repentant eyes? These questions are prompted by the remarkable homily delivered by ex-PM Malcolm Fraser in his Vincent Lingiari lecture at NTU Darwin on 24 August. Here was a staunch conservative doubting and denouncing some of the hallowed credos of the Liberal faith. His rapier tongue jabbed into those die hard Party tenets denying the stolen generation, upholding the common law and its courts and carping at native title. True, Fraser's conversion is not a blindingly Pauline one and for some years now he has tiptoed towards a softer, kinder stance on social matters but nevertheless the turnaround is extraordinary. The scale of the conversion is proved by the reaction it incited: a cacophony of baying howls from the present Liberal apparatchiks.
Letters to the NT News and chatter in the local coffee bars has shown a fascinating divergence of views. Large 'L' liberals generally adopt the 'turncoat traitor' viewpoint. Some on the liberal-left welcome any recruit and con vert. Others of that ilk express scepticism at his motives. • KB
Curious Snail Bites QLS
Queensland's only daily, The Cou rier-Mail, earned the moniker The Curious-Snail for slumbering through
the Bjelke years, awakening for Fitz gerald, then re-designing itself as a modem looking but essentially provincial, family paper. Sometimes it sheds that image with hard-hitting journal ism. This year, the Snail mounted a concerted campaign against the Queensland Law Society (QLS). Aft L.J readers may intuitively support some of the claims, including that law societies are not independent enough to administer complaints, or that they are too close to the 'big end of town'. Another hot topic was that the Fidelity Guarantee Fund verged on insolvency, necessitating a $600 pa solicitor Fund levy.
QLS President Peter Carne, from the 'middle end of town', was surprised by the relentlessness of the attacks from the Snail and by the difficulty of getting positive coverage for good work by the QLS or pro bono lawyers. Some criticisms were confused, for example about whether clients who invest through solicitors should be protected by a Fund established to protect traditional defalcations. Others were unproductive: the Fund's financial problems were partly historical, partly due to State claims on its revenue.
The $600 Fund levy generated other controversies. Paul Henderson, a QLS Council dissentient and free dom-of-information terrier, sued the QLS over the Fund levy. During the case, one judge disqualified himself after calling Henderson 'a slimy gentle man' from the bench and police dismissed a claim that the QLS's solicitor assaulted Henderson with a knife as he was served with a writ at a suburban social gathering!
The Snails campaign against the QLS backfired with many solicitors, who voted for the status quo on the QLS Council. Targeting the profession isn't difficult in cynical times. President Carne acknowledges that lawyers' unethical or criminal conduct is rightly newsworthy but fears the damage done to morale and respect for decent lawyers by sustained media attacks. The QLS is no ordinary trade union, and heightened scrutiny may be justified. But who watches the Snail?
Goodbye articles: hello PLT?
Brisbane Law Schools will compete head to head in offering post-LLB practical legal training, as big firms signal a desire to ditch two-year in-house articles in favour of sending recruits to shorter practical training courses and the profession generally confronts a drain of graduates seeking quicker admission to practice interstate.
Griffith University has joined a consortium of southern law schools to deliver nationally accredited practical legal training (PLT) in flexible mode. UQ, Queensland's most establishment law school, is also a new entrant to PLT. QUT has an existing long-standing practical training program, while Bond also already has such a program. Doubtless, different institutions offer different attractions: an ethical focus and generic skills; proximity and connections to the city; commercial real ism; tip-top facilities. For those articled clerks whose 'Masters' give them no variety, sustained training, or reflective experience, articles is a poor apprenticeship for the law. A rational practical training system would see cross-campus pooling of expertise creating a single accredited course per capital city, sound enough to meet accreditation baselines, yet big enough to allow specialisation to meet student interests and professional diversity.
Not all these practical training courses will survive and not necessarily for reasons related to intellectual rigour or practical benefit. That a kind of hyper-competition should emerge so swiftly is due in part to the need of universities to find cash-cows after a decade of government neglect. Law schools are being pulled in many directions by these funding issues. • GrO
World Economic Forum and SII
The WEF 2000 regional meeting held in Melbourne from September 11 to 13 saw hundreds of transglobal corporation CEOs and senior managers, politicians, media and others gather, somewhat appropriately, in the casino.
Several alternative forums were held in the run-up to the WEF, some with international speakers including renowned activist Vandana Shiva. These discussions exposed the many downsides to the current capitalist sys tem and its dominance by multinational corporations accountable only to their shareholders. At the federal level, these issues were highlighted on 6 September when the Democrats tabled the Corporate Code of Conduct Bill 2000.
In the days prior to the WEF, most media outlets were predicting extensive protester-initiated violence. The gathering of capitalism's ubermensch was cordoned off with ex-Grand Prix concrete and wire mesh barricades and an overabundance of police. Damien Lawson of Western Suburbs Legal Ser vice, with several others, organised a Legal Observer team to monitor the situation and established an office in Trades Hall which was staffed for the entire duration of the protest. Many lawyers and non-lawyers volunteered their time to assist this team.
In excess of 10,000 protesters from all walks of life, plus at least 5000 unionists on Tuesday, came to air their views on a multitude of topics. The protest was overwhelmingly peaceful thanks in large part to the solid marshal ling efforts of the S11 Alliance and to the determination of most demonstrators to ensure the protest was non-violent. The common theme was the demand for those inside to ensure their organisations become better corporate citizens-to stop destroying the environment, to provide all workers with fair wages and conditions, to stop dealing with corrupt regimes around the world, to embrace the concept of the 'triple bottom line' where the environment and social responsibility rank equally with profits.
Day One of the protest was the most successful for the demonstrators with several hundred of the forum invitees being unable to enter the casino. It was marred by the actions of WA Premier Richard Court who attempted to have his car driven through the massed pro testers. The police aggressively cleared a path for his stranded car.
Day Two saw a change in tactics by the police, following criticism by some WEF delegates, media commentators and local politicians. Two incidents in particular, one early in the morning and another around 7.30 pm, resulted in dozens of injuries. Police in riot gear and without identification badges stormed out over protesters seated on the ground with linked arms. Contrary to the recommendations of the Police Ombudsman following his inquiry into the Richmond Secondary College pro tests, many police officers wielded their batons in a dangerous wild swinging motion as they trampled, kicked and punched the protesters where they sat. Some serious injuries were sustained and are likely to form the basis of a class action being undertaken by one of the major law firms in the city. The Legal Observer team is also preparing a formal complaint to the Police Ombudsman following distillation of the 500 plus statements that were taken from victims and witnesses.
Day Three saw yet more violence from the police. However, the highlight of the day was the march by the demonstrators through the city followed by the creation of a human chain almost man aging to stretch around the circumference of the casino.
Aside from the violence displayed by some members of the police, one of the most disappointing aspects of the event was the media reporting, with many inflammatory, sensationalist headlines that entirely misrepresented the situation. The Herald-Suns reporting, in particular, plumbed new depths of journalistic integrity. Unfortunately, the ABC and even SBS tended to focus on the violent incidents, showing foot age of scuffles without examining the details. Further anger and disappointment resulted from Labor Premier Steve Bracks' unqualified support for the actions of the police and his reference to the demonstrators as 'fascists' and their activities as 'unAustralian'. The backlash from disgusted Labor voters was swift, in the form of emails, Letters to the Editor and the abandonment of the Party.
There is no doubt that the protest was a success from the point of view of swinging the public spotlight onto the raison d'etre of the WEF and the more powerful WTO. More of the general public have started to realise the dangers to the environment and basic human rights posed by transglobal trade unfettered by notions of equity and responsibility. Calls for greater accountability are growing louder and will continue to resonate.
Victoria's Community Legal Centres (CLCs) have become pawns in a battle of wills between the federal and State Attorneys-General. The offices of federal A-G Daryl Williams and Victorian A-G Rob Hulls have been issuing media releases condemning the other in relation to stalled funding arrangements for the CLCs. The federal A-G's Department has also threatened to pull out of the joint federal/State CLC funding program and set up its own separate program. Reports suggest that federal A-G Williams is keen to get the stalled CLC review process back on the agenda.
A-G Williams has advised CLCs that they are only being offered funding until December 2000 rather than for the remainder of the financial year (to June 2001) as previously expected. If funding is continued, this then puts the CLCs on a quarterly, rollover funding arrangement. This is similar to the situation that has existed in South Australia for almost two years, even following the completion of their review process which has resulted in CLCs having to tender for work.
Flow-on effects of such short-term funding include lack of certainty about Centres' futures, winding back of ser vices, inability to attract employees because of doubts over employment contracts and questions over the ability to carry out Workplans which must be submitted with the signed Funding Ser vice Agreements. Is this the end of an effective Victorian CLC service and movement? • GO
Julie Wager has been appointed as Western Australia's first Drug Court magistrate. Announcing her appoint ment, Attorney-General Peter Foss said 'the central feature of the drug court system will be its ability to spend more time with cases and to find a way for the individual offender to control their habit'. The new court is part of a diver sion strategy that will operate on a co-operative basis with bodies such as the Director of Public Prosecutions, the police, and the Court Diversion Service as well as defence lawyers, medical professionals and drug support services. • DD
DownUnderAl!Over was compiled by Ken Brown, Fiona Dalton, Jeffrey Dalton, Danielle Davies, Russell Goldflam, Fiona Hussin, Graeme Orr, Glenn Osboldstone, Peter Wilmshurst.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/97.html