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Editors --- "DownUnderAllOver: Developments around the country" [2004] AltLawJl 10; (2004) 29(1) Alternative Law Journal 46

Developments around Australia


ASIO powers: a veil of secrecy

The past few years have seen a burst of legislative activity in relation to terrorism. Since 23 July 2003, the Australian Security Intelligence Organisation Act 1979 (Cth) has given ASIO power to obtain warrants to detain and question a person, obliging that person to give information or to produce records or things 'that are or may be relevant to intelligence that is important in relation to a terrorism offence' (ss 34D, 34F).

To obtain a warrant, both the Attorney General and the warrant's issuer-a judge or a federal magistrate appointed by the Attorney General -must be satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence (ss 34A, 34AB, 34C, 34D( I)).

Terrorism offence' is defined to include any offence under Part 5.3 of the Commonwealth Criminal Code (s 4). Part 5.3 makes it an offence to plan, commit, train for, or possess things connected to, terrorist acts. It also makes it an offence to provide leadership, money, training or support to an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act. Terrorist act', in turn, is defined very broadly, to include any violent or hazardous act -whether targeted at civilians, police or soldiers -intended to intimidate any government, or any section of the public, whether in Australia or overseas.

Part 5.3 also permits the Attorney General to list organisations linked to Hamas, Hizballah, Lashkar-e-Tayyiba, or identified by the United Nations Security Council as terrorist organisations. The Attorney General must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting or fostering the doing of a terrorist act. Listing enlivens the organisational offences mentioned, and makes it an offence to be a formal or informal member, or to take steps towards membership, of that organisation. (At the time of writing, the government has a Bill before parliament that would give the Attorney General the power to list an organisation regardless of its affiliation or the opinion of the Security Council).

The scope of ASIO's power is disturbingly broad. For example, if I knew that someone might be involved with an activist group in Italy that was preparing to confront the Italian police in a potentially violent demonstration, then I would be the potential target of an ASIO warrant.

Cause for concern about the breadth of ASIO's power has been compounded by further amendments that came into force on 18 December 2003.While a warrant is in force, it is now an offence for anyone to disclose information indicating that the warrant has been issued, or relating to the content of the warrant or to the questioning or detention of a person in connection with it (s 34VAA(I)). The Act permits a warrant, once issued, to remain in force for up to 28 days (s 34D(6)(b)).

While a warrant is in force, and for two years after; it is now an offence to disclose operational information resulting directly or indirectly from the issue of the warrant, or the doing of anything authorised by or in connection with the warrant (s 34VAA( I), (2)). 'Operational information' is defined to include information about what ASIO knows or has known, its capabilities, methods and plans, or a source of ASIO's information (other than the person named in the warrant) (s 34VAA(5)).

Both new offences are punishable by five years imprisonment. For the person named in the warrant, and their lawyer, strict liability applies; for others, the fault element is recklessness (s 34VAA(3)).

Exemptions apply, permitting disclosure of information when acting in accordance with the Act, to a lawyer for obtaining legal advice or representation in connection with a warrant, or as part of legal proceedings relating to a warrant Exemptions also apply as part of a regime limiting the application of ASIO's powers to minors. Nevertheless, these secrecy provisions effectively preclude any discussion of ASIO's activities involving the issuing of detention and interrogation warrants.

Interestingly, the Explanatory Memorandum to the December amendments described the secrecy provisions as 'intended

to deter the subject of a warrant from notifying persons who have terrorist links that they are being questioned'. The most cursory reading of the Act shows that these provisions do far more than this.They gag, among others, journalists, politicians outside parliament and lawyers outside court. The Explanatory Memorandum also notes that secrecy 'protects sensitive information, such as information relating to ASIO's methods of operations, its sources, and intelligence holdings'. Criminalising public scrutiny certainly protects both ASIO and the government from having to defend their conduct against accusations of illegality or impropriety. Coupled with such broad grounds for the issuing of warrants, it is an invitation to abuse.

PATRICK EMERTON teaches law at Monash University.

Inquiry into residential tenancy databases

Residential tenancy databases (RTDs) are privately operated databases that collate information on tenants, including identifying personal information and other information thought to reflect the 'risk' a tenant poses, to assist landlords and property managers to assess tenancy applications. Listings on RTDs are generally based on information provided by landlords and property managers to the database operators. These listings are then provided to other landlords or property managers for a fee.

On 19 November 2003, the Ministerial Council on Consumer Affairs and the Standing Committee of Attorneys General commenced an Inquiry into the operation of RTDs and released an Issues Paper for public comment. Numerous community

legal centres and community organisations, including the PILCH Homeless Persons' Legal Clinic, Shelter South Australia, Shelter Western Australia and tenancy advice services from New South Wales, Tasmania, Queensland, Victoria and Western Australia, made submissions. Their submissions included the following key points and recommendations:

• People subjected to negative listings face significant barriers to accessing the private rental market. There is a direct causal relationship between RTD listings and homelessness.

• The best mechanism to ensure that individuals are treated fairly, and that their rights to adequate housing and privacy are protected, is a consistent national approach to the regulation of RTDs.

• A clearly enumerated set of grounds for listings would provide certainty for tenants and agents in relation to the information and circumstances that may be the subject of a listing.

• RTD listings should be removed in situations where the likely prejudice to the tenant outweighs the usefulness of a listing in reflecting the current risk the tenant may pose, for example where the tenant is listed following the abandonment of a previous property due to domestic violence.

• Many people do not realise that they are the subject of a listing until they are refused a private rental.Tenants must be given notice before listings are created, and the opportunity to dispute and correct inaccurate or unfair listings.

• Where a listing already exists, an individual's right to access information held on a RTD is fundamental to ensuring that the listing is accurate and up-to-date.

• Information that is not accurate, complete or up-to-date must be corrected immediately.

• The creation of an independent dispute resolution scheme, such as. an ombudsman, would help ensure fairness, impartiality and accountability in RTDs.

The unregulated operation of RTDs causes and maintains homelessness for many people. A national approach to the regulation of RTDs, based on the human rights to privacy and

to adequate housing, would constitute a significant step towards reducing homelessness.

To view the submissions, or for further information about the Inquiry, go to <>.

PHILIP LYNCH is Coordinator of the

PILCH Homeless Persons' Legal Clinic


OHS review- industrial manslaughter in NSW?

Amidst many, often barely noticed industrial fatalities in factories, mines, petro-chemical and gas plants around Australia, the recent death of a 16 year old in New South Wales, after falling from a roof-top when he should have been secured by a safety rope, has sharpened the political impetus to reconsider introducing an industrial manslaughter offence in New South Wales.

Thus in November 2003, the Minister for Industrial Relations, john Della Bosca MLC. appointed a panel including Professor Ron McCallum, Dean of the Faculty of Law University of Sydney and barristers Peter Hall QC, Adam Hatcher and Adam Searle to make recommendations on potential reform occupational health and safety (OHS) legislation.

The ACT has enacted The Crimes (Industrial Manslaughter) Amendment Act 2003 (ACT), though other states have yet to follow. This Act is said to 'recognise the serious and avoidable nature of workplace fatalities' and ensure that any 'employer that significantly contributes to the death of an employee can be charged with a criminal offence'. Of course, the ACT does not have the same levels of heavy industry of other jurisdictions, and, to date, other states such as Victoria have been unsuccessful in having such legislation passed. Likewise, the United Kingdom has been considering introducing industrial manslaughter, but as yet has not done so.

The brief for the NSW panel is likely to be fairly wide ranging, emphasising recommendations for appropriate legislation addressing workplace fatalities. It will be interesting to see whether the brief reflects current disquiet amongst some in the legal profession about the way in which the Industrial Relations Commission of New South Wales in Court Session (IRC) has been exercising its jurisdiction: in particular, whether some or all of the OHS jurisdiction should be removed from the IRC. Certainly, if an industrial manslaughter offence is recommended, identifying an appropriate forum will be important, not least for practical reasons such as resourcing and the potential for double jeopardy in relation to proceedings concerning the same issues but potentially resulting in a corporate penalty and individual criminal liability.

The theoretical justifications for the recommendations are likely to be sold to the public using the dual discursive baseball bats of retribution and deterrence. Certainly, most parents of 16 year olds, not just in New South Wales but around the country, are likely to agree that wilful or reckless negligence (or whatever particular definition of manslaughter is preferred) resulting in the death of their child should be punished and prevented. However, the extent to which this will prevent future workplace deaths remains unresolved. While deterrence is an effective discursive tool it is a problematic criminological fact. Certainly, any review by distinguished and committed legal minds is likely to provide useful recommendations regarding an appropriate legal safety net. However, it is questionable whether this will address the key issue, namely how to make workplaces safer. No doubt the usual suspects will trot out the usual arguments: various employer groups will argue that retribution is bad for business and the unions will argue that workplaces will never improve without appropriate deterrence. Let us hope that the recommendations provide an impetus to address the issue of workplace safety in a holistic way and not just as a series of isolated and unrelated instances requiring a reactionary legislative response which is likely to bear only political fruit.

While Mr Della Bosca announced that the panel would be reporting early in the new year, it appears the brief has only just been provided, making it more likely that any report will appear in the latter part of this year.

KELLIE EDWARDS is a Sydney lawyer.


Gay and lesbian law reform: a win in the NT

At 2.30 am on 26 November 2003, the gay and lesbian community of the Northern Territory and their supporters were finally able to celebrate after a long struggle to begin to achieve equality before the law. Parliament had just passed the Law Reform (Gender, Sexuality and Defacto Relationships Bill 2003. Parliamentary debate began in the late afternoon of 25 November: Debate was heated and Members opposed to the changes were vocal.The opposition allowed its members a conscience vote on the issue and two of them voted with the government. The night marked the success of a long campaign that at times sparked controversial public and media debate.

Darwin Community Legal Service (DCLS) presented a submission to the NT Government in May 2002.The submission, 'Equality Before the Law -Gay and Lesbian Law Reform in the NT outlined I 0 areas where reform was needed to ensure that all people in the NT were equal before the law.The government adopted the majority of the recommendations.

The most widely debated change was to laws relating to the age of consent. Previously, the age of consent was 16 for heterosexual relationships and 18 for male same-sex relationships, as set out in the Northern Territory Criminal Code.

The law was silent on consensual sex between females. The change in law now means that the age of consent is 16 for all.

Changes were made to the Domestic Violence Act 1992.That Act, till now, had failed to protect those in gay and lesbian relationships unless they co-habited. The changes mean that all people in violent relationships now have access to restraining orders, regardless of their sexuality.

The Anti-Discrimination Act 1992 previously provided limited protection to gay, lesbian and bisexual people. The reforms have removed an exemption that allowed discrimination in the workplace on the basis of sexuality where the work involved the care, instruction or supervision of children.

The DCLS submission also called for the removal of other exemptions allowing religious bodies to discriminate. Amendments were made that limit rather than outlaw discrimination by religious bodies.

Significant law reform was also made in access to property rights (including property settlements) and financial benefits (including the NT superannuation scheme) for same sex couples. The definition of de facto couples was amended to include same sex couples.

The government did not adopt some DCLS submissions. These included access to IVF and adoption of children. The submission also recommended that the Criminal Code be reviewed so that accused could not employ the 'homosexual panic defence'. DCLS suggested reform based on recommendations of the Western Australian Ministerial Committee, but this was not supported by the NT Law Society and was not accepted by the government. DCLS will continue to work with the government on these areas of inequity.

For more information on the changes, please contact DCLS:

or the NT Attorney General's Department.

WENDY MORTON is Outreach Worker. Darwin Community Legal Service. CAITLIN PERRY is Coordinator, Darwin Community Legal Service.


Of kids, polls and the media

Premier Beattie slipped back from summer holidays to seek re-endorsement after a 26-day campaign. With 66 out of 89 seats, no-one expected Labor to lose office. The question seemed to be how many of the unexpected winners in 200 I will prove to be parliamentary 'oncers'. (Ed: not many. Labor's net loss was just three seats.)

Actually, it is misleading to describe this as a 'Labor' government or campaign. Not because of its ideology, although the government embodies the usual state-level mix of'mainstream' pragmatism, loosely informed sometimes by a social democratic heart. Rather. it recognises the blatant packaging of 'Team Beattie'-the official title, almost, of the Queensland ALP: see <>.

But since the government, year in year out, in form and substance appears to be a one-man band, perhaps one shouldn't carp. The cupboard of talent is not rich, on all sides. A senior Minister. Merri Rose MLA, resigned in the first week of the campaign after a WorkCover tribunal found she had injuriously bullied a staffer: This came on top of revelations her son used her ministerial car. amongst other things, to drive to Sydney to watch football.

The Premier deserves the nickname, 'Captain Bleattie'. A self­ confessed media tart, he paints himself, daily, as a Mr Good Guy with an anodyne opinion on everything. Bizarrely, his ostensible reason for calling the (slightly) early poll was This is about putting children first'.

This was an unveiled reference to the one real scandal that ought be dominating consideration. That is the damning Crime and Misconduct Commission (CMC) report, Protecting Children: an lnquiry into Abuse of Children In Foster Care.

This inquiry followed months of media scrutiny and executive buck-passing over multiple failures by social welfare services to detect and prevent serious cases of abuse within fostering environments. To give some perspective, in one year alone, authorities received notification of more than 31,000 cases of alleged abuse and neglect. These gave rise to around 4000 protective legal interventions, mostly involving the child being ordered into the legal care of the Department of Family Services, which typically then finds fosterers or relatives to provide care in a new home.

With due respect to the majority of fosterers, who provide phys1cal and emotional respite to often troubled children, the system has failed a significant number of children. Substantiated re-abuse (not necessarily by fosterers) affects one quarter of children within a year of the original abuse.The CMC highlighted unforgivable cases, such as three children who suffered gonorrhoea whilst in care. The department accepted the 'carers' explanation that the disease had been spread by a face washer:

The CMC identified long-standing institutional problems in the funding, support and training of departmental officers. An additional I 65 'frontline' staff have been recommended. Investigation is now to be treated as a specialist function, separate from ordinary casework And a 'single issue' department, focused solely on 'Child Safety' has been recommended to administer the Child Protection Act I 999.

All sides of politics rushed to pledge to fully implement the report. The problem, after all, had built up over several administrations. But this bi-partisanship does not completely explain why the report has not bitten as an electoral issue.

Society now accommodates gross inequality, both economic and social, to the point where there are two classes of kids. A middle class majority, and an underclass minority, some of whom will fall into trouble. As the bulk of people don't interact with families and kids at risk (or are not aware if they do), the issue can grab abstract headlines, but the problems may as well be happening in the third world.

GRAEME ORR teaches law at Griffith University.


Native title agreements in South Australia

The Arabunna and Antakirinja peoples have both recently signed the first Minerals Exploration Indigenous Land Use Agreements (ILUA) in South Australia. These ILUAs set out the terms and conditions for any mining companies wishing to explore in the ILUA areas. They also provide an alternative and more streamlined process than under the procedural provisions of Part 9B of the Mining Act 1971 (SA).

The Arabunna ILUA covers all land within the external boundaries of the Arabunna people's native title claim, excluding Lake Eyre, the Oodnadatta Common and any part of the claim area that is the subject of an overlapping native title claim. The Antakirinja ILUA covers all land within the external boundaries of the Antakirinja native title claim, excluding any part of the claim area that is the subject of an overlapping native title claim.

The agreements result from the Statewide ILUA Negotiations -a process that involves negotiation of native title claims on an issue by issue basis rather than litigation. As Parry Agius, executive officer of the Aboriginal Legal Rights Movement­ Native Title Unit, said:'Bringing people together to discuss these sometimes sensitive issues around land and water is the way forward'. Traditional Owners also say that the ILUAs will help to protect their sites of significance and work toward improving the wellbeing of their communities.

AMY ROBERTS is a South Australian archaeologist.


Depression or grief

On Christmas Eve 2003, the parents of 26-year-old Matthew Whayman, who was killed in a car crash in 1999, won their case against the Motor Accidents Insurance Board. They alleged they were suffering from depression as a direct result of the negligence of the driver of the vehicle that collided with the car in which their son was a passenger.

The main legal issue was whether Mr and Mrs Whayman were suffering from grief, pathological grief, or major depression. Chief Justice William Cox found that despite their condition not falling within psychiatric criteria for a diagnosis of mental illness under the DSM IV, he believed that it could be said they had a psychiatric illness:'On any view their grief is so intense and their inability to adjust to it so unusual as to indicate an abnormality of their minds such as can fairly be described as indicative of disease', he said. Their bereavement was 'abnormal in its intensity and duration and has profoundly affected their lives'. He awarded Mr Whayman $28,400 and Mrs Whayman $49,500 in damages. However; the decision has provided little comfort for the Whaymans, who are now considering suing the driver's employer; the Catholic Church, for allowing him to drive when they should have been aware that he was susceptible to blackouts.

Sex worker law reform

On 4 February, Attorney General Judy Jackson released details of Tasmania's long awaited sex worker legislation. In late 1998 the then Attorney General referred the issue to the Community Development Committee, which publicly invited submissions in March 1999. Despite the Committee's recommendation that all sex workers be registered, the proposed Sex Industry Bill 1998 was never enacted.

The Sex Industry Regulation Bill 2004 is aimed at protecting children from exploitation, protecting public health and the health and welfare of sex workers. Ms Jackson says it will give sex workers better protection, through the mandatory use of condoms and registration. The legislation is modelled on the Australian Capital Territory's registration scheme. It requires self-employed sex workers and all commercial operators of sexual services business to register with the Office of Consumer Affairs and Fair Trading and makes it an offence to carry on an unregistered business.

Mr Martyn Goddard, President of the Tasmanian Council for AIDS, Hepatitis and Related Diseases, criticised the Bill on various grounds, claiming that 'Tasmania seriously needs decent and effective sex industry regulation. The government has its rhetoric right, but at this stage they do not appear to have the law right yet'

The Bill provides that no sexual services business of any type will be permitted within 200 metres of a place of worship, hospital, school, kindergarten, or any other place regularly frequented by children for recreational or cultural activities. Commercial sexual services businesses are prohibited from operating in residential areas but, other than these restrictions, planning issues will be dealt with under Local Government planning schemes.

Mr Goddard points out that this means that any worker wanting to work legally from home will have to obtain local council development approval for change of use of the premises. This will involve putting a notice to that effect outside their house and potentially putting the worker at risk.

He also noted that the requirement that brothel operators keep a list of their workers may be unworkable given that many sex workers prefer to conceal their real names and addresses from brothel owners. There are also no proposals for the enforcement of any of the protections contemplated by the bill. If a brothel owner is breaching the law, it is unlikely that anyone will report this other than a sex worker. If the worker is not protected from vindictive and angry operators by adequate whistleblower legislation, mainland experience shows workers are unlikely to make formal complaints.

The Bill also makes it an offence to provide or receive any sexual services unless a prophylactic is used. Mr Goddard explained that national safe sex guidelines do not require condoms to be used for oral sex, nor do they support punitive criminal measures to enforce safe sex. According to the Bill, oral sex without a condom would become illegal for worker and client and subject them to prosecution and substantial penalties. A male sex worker or client could find themselves before the courts for having precisely the kind of sex they have ordinarily in their outside lives.

SAMANTHA HARDY teaches law at the University of Tasmania


What you think about on-the-spot fines and civic compliance

The Victorian Department of Justice, in conjunction with Professor Richard Fox of Monash University, recently released a report entitled On-the-Spot Fines and Ctvtc Compliance. The report presents key findings from a two­ year research project regard1ng community perceptions and understandings of the infringement notice system and associated enforcement mechanisms, including PERIN.

Some of the report's findings include that:

• There is a need for overarching legislation to regulate the issuing and enforcement of infringement notices.

• The most important factor contributing to civic compliance is the perception of'fairness'. The high level of penalties for minor offences, the system's inflexibility in dealing with people who are socially or financially disadvantaged, and the lack of informat1on about payment or objection options all contribute to public perceptions of significant 'unfairness' in the current system.

• The public has a very poor understanding of their rights and options when issued with an infringement notice. Less than one-third of the general population is aware that they can object to an infringement notice in open court. Of those who are aware that they can opt for a court objection, many decline to do so as a result of a misapprehension that they may be imprisoned if found guilty of the alleged offence.

• The most common suggestion for improving the current regime relates to the 'need for the system to be able to take circumstances and means into consideration and to have sufficient flexibility to be able to apply a degree of leniency in the application of fixed penalties'.

The report demonstrates that it is not enough that the infringement notice system is 'efficient' and 'cost effective'. If the Bracks Government is to ensure high levels of public acceptance of. and compliance with, the regime, it must implement significant reforms to also ensure that the system is fatr.

PHILIP LYNCH is Coordinator of the PILCH Homeless Persons' Legal Clinic.

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