Alternative Law Journal
The federal government’s ‘WorkChoices’ legislation greatly restricts the remedies available to dismissed workers by removing the avenue of redress for unfair dismissal for workers employed by constitutional corporations with 100 employees or less, as well as those whose employment is terminated for reasons that include ‘genuine’ operational necessity.
The NSW Legislative Council Social Issues Committee is currently conducting an inquiry into the impact of the Federal WorkChoices legislation. The Combined Community Legal Centres Group (NSW) Inc provided a submission to the Committee in an effort to bring to public attention the real impact that the federal government’s industrial law reforms are having on the community at large, and in particular on those people who already face an element of social and economic disadvantage. Community legal centre employment lawyers provided additional material, including case studies, by way of oral evidence at the public hearings conducted by the Committee.
The Standing Committee on Social Issues was asked to:
inquire into and report upon the impact of Commonwealth WorkChoices legislation on the people of NSW, and in particular:
(a) the ability of workers to genuinely bargain, focusing on groups such as women, youth and casual employees and the impact upon wages, conditions and security of employment,
(b) the impact on rural communities,
(c) the impact on gender equity, including pay gaps,
(d) the impact on balancing work and family responsibilities,
(e) the impact on injured workers, and
(f) the impact on employers and especially small businesses.
The written submissions and oral evidence highlighted a number of perceived and actual ramifications of WorkChoices that would have a disproportionate impact on the most disadvantaged members of our community. By excluding from the unfair dismissal jurisdiction workers dismissed by constitutional corporations with 100 employees or less, the capacity of the Australian Industrial Relations Commission to facilitate the resolution of all issues relating to the employment relationship has been greatly diminished. This is a significant adverse effect of WorkChoices, and is particularly relevant where there are allegations of unlawful discrimination relevant to the dispute. WorkChoices has removed the unfair dismissal component of an employer’s actions, leaving the aggrieved employee to seek redress through anti-discrimination bodies where there are issues of discrimination, local courts where there are issues of unpaid entitlements, or the Tax Office where there are discrepancies in relation to superannuation payments. There is a very real likelihood that the onerous requirement to visit multiple jurisdictions in order to seek redress will discourage workers from challenging the unlawful and unfair actions of their employers.
Applications for unlawful termination (which often involve allegations of discrimination) may still be brought by those dismissed by constitutional corporations employing 100 employees or less. However, the low cost and informal alternative dispute resolution process of the Industrial Relations Commission has been greatly restricted. If the unlawful termination dispute does not resolve through conciliation the dismissed worker has the option to elect to have their matter heard in the Federal Court. This will no doubt pose a significant disadvantage to many self-represented litigants with limited financial resources, as well as those ill-equipped to run complex costly litigation. The risk of adverse costs orders in the Federal Court is likely to pose a deterrent to many notwithstanding the merit of their claim. The federal government has set up a financial assistance scheme whereby workers who allege that they have been unlawfully terminated may be eligible to obtain up to $4000 of ‘independent’ legal advice. Under the conditions of the scheme however, the legal adviser will not be allowed to represent the worker in any subsequent conciliation or court proceedings.
The Parliamentary Committee heard evidence that WorkChoices, operating in conjunction with the ‘Welfare-to-Work’ reforms and changes to the child support scheme, will have a particularly harsh impact on women. Women already historically face greater disadvantage in the workplace and the new regime of Australian Workplace Agreements (AWAs) brought in through WorkChoices is likely to have the net effect of increasing that disadvantage, as the ability of women with family responsibilities to bargain with businesses will be lessened. Young people entering the workforce for the first time are in a similarly vulnerable position when seeking to bargain about terms in an employment contract. Refusal to accept a job due to the inadequacy of terms of an AWA may lead to suspension of Centrelink payments — this will reduce the incomes of women receiving parenting payment, and encourage young people to accept unsatisfactory working conditions.
Workers who have been terminated for reasons that include a ‘genuine operational reason’ are excluded from the unfair dismissal jurisdiction by reason of WorkChoices. Employers may be encouraged to take advantage of this exemption in circumstances where there is more than one reason for dismissing a worker, for example personality clashes with supervisors or where there are performance issues (legitimate or otherwise), as long as one ‘genuine’ reason for the dismissal was of an ‘economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business’.
The Committee is due to report towards the end of November 2006. The full text of the CCLCG submission, as well as transcripts of evidence given by CLC employment lawyers, can be found at:
EMMA KEIR is a Solicitor at Marrickville Legal Centre.
The NSW Law Reform Commission has commenced its inquiry into whether jurors should play a role in sentencing <http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_ip27toc> . Responding to the comments of Chief Justice James Spigelman that public confidence in the administration of justice is related to decisions about sentencing, Issues Paper 27 (2006) calls for public submissions.
At present, juries in NSW may affect sentencing only by recommending leniency for an offender. The Chief Justice did not call for juries to actually determine sentences, as occurs in some United States jurisdictions. Instead, he envisaged that after evidence had concluded, and after sentencing submissions had been made by the parties, the judge would consult the jury, in private, about matters that related to sentencing.
The inquiry is supported by the NSW Deputy Opposition leader, Barry O’Farrell, but only if the jury consultations were to be carried out in open court. The NSW Law Society, Bar Association and Council for Civil Liberties have questioned the merits of the proposal, which has also been met with scepticism by the President of the Homicide Victims’ Support Group. The NSW Attorney General, Bob Debus, has said he is keeping an open mind, whilst supporting Spigelman’s call for public discussion on the subject.
The Law Reform Commission inquiry will address how public perception is formed, including a detailed examination of the role of the mass media in forming public opinion about criminal justice. It will also study whether and how the proposed consultation with jurors would affect public perception, sentences, and jurors. It will explore the nature of input jurors might have into sentencing, including any practical and procedural issues related to delay and timing, amongst other factors. Finally, it will examine whether any constitutional constraints operate.
Submissions to the inquiry close 1 September 2006.
KATHERINE BIBER teaches law at Macquarie University.
A cornerstone of the Australian legal tradition is the separation of powers. An independent judiciary is fundamental to our system of government. The role of police, as representatives of the state, has been to detect crime, apprehend alleged offenders and bring them before the courts. If courts decide that a charge is proven, they are responsible for setting an appropriate punishment inline with relevant legislation.
Times are changing. The South Australian government’s recent amendments to the Road Traffic Act give police the power to dish out on-the-spot licence suspensions and disqualifications to drivers caught with a blood alcohol concentration above .08. There is nothing new about giving the police powers of this nature. Police already hand out expiation notices for some minor offences, for example traffic offences and simple drug infringements. Citizens can then decide if they wish to expiate the offence by paying a monetary penalty or alternatively contest the notice in court.
At first glance, giving the police such power seems reasonable because alcohol is a factor in many traffic accidents, including fatalities. The Minister, during the second reading of the Bill, acknowledged that giving the police the power to immediately suspend a citizen’s licence was indeed a significant issue but stressed that the decision would be based solely on the objective measure of a blood alcohol test, rather than an arbitrary decision by a police officer. Further, the Act provides the safeguard of allowing citizens the right to apply to the Magistrates’ Court to have a disqualification or suspension lifted or reduced.
If the state wants to deal with drunk drivers administratively and allow police to hand out quite significant penalties, like licence disqualification, it has a responsibility to get it right. Otherwise citizens will lose faith in the system. The system was recently tested when the Supreme Court disallowed a police appeal on the grounds that the notice of licence suspension did not, because of a printing error, comply with the requirement that it must specify the offence to which the notice relates. Therefore, the notice issued was, according to the court, flawed and unable to secure a valid licence disqualification.
Instead of the government taking responsibility for the error, the Attorney General launched an attack on the courts: ‘The error in the footnote disadvantages no-one, it is merely a pretext for the Supreme Court to strike down a law it thinks the Parliament shouldn’t have passed’. The Chief Justice objected to the Attorney General’s comments because they question the integrity of the Court. Ultimately, the Attorney General apologised for his comments. This is not the first time politicians have made disparaging remarks about the judiciary. In Parliament, the South Australian Premier recently criticised the Chief Justice for questioning the premise that longer prison sentences reduce crime.
It is time for politicians to acknowledge and support the independence of the judiciary instead of attacking any criticisms. The judiciary is an important arm of government and should not be cast as the opposition. It is also important that politicians do not continue to undermine public confidence in the judiciary; otherwise our system of government is on shaky ground.
PAUL MARKS teaches Legal Studies at Flinders University.
The Northern Territory is the only Australian jurisdiction that does not recognise an exception to the principle of open justice in respect of juvenile offenders. For decades in the Territory, it has been open slather for the media in respect of ‘naming and shaming’ children who have been found guilty in court. This position was recently reaffirmed in the decision of MCT v McKinney & Ors  NTSC 35 (Unreported, 3 May 2006) <http://www.nt.gov.au/ntsc/doc/judgements/2006/ntsc/20060503ntsc35.html> .
Press photographers have pursued children outside Territory courthouses. The NT News has identified them by name and image, with inflammatory descriptions such as ‘bored thug’. In every other Australian jurisdiction, the publication of a juvenile offender’s identity is either prohibited outright or permitted only with leave of the court.
The Youth Justice Act 2005 (NT) commenced operation on 1 August 2006. The Act represents an overhaul of the Territory’s juvenile justice system. ‘Youth justice’ principles in the Act include that ‘punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways and that ‘programs and services established under this Act for youth should … encourage attitudes and the development of skills that will help them to develop their potential as members of society’ (emphasis added).
The NT government appointed a ‘working party’ in 2004 to consult with community and government stakeholders, and recommended legislative reforms. Submissions were received in support of restricting the identification of juvenile offenders. Astonishingly, it was decided that preserving the ‘name and shame’ status quo would better promote these so-called youth justice principles.
MCT was a 15-year-old Aboriginal boy who wanted to develop in a beneficial and socially acceptable way, and develop his potential, by securing a job in the small town of Tennant Creek. He was concerned that his employment prospects in that town might diminish or evaporate if media reports of his offending identified him by name or photograph. The NT News is sold daily in Tennant Creek.
Justice Angel was called on to determine in what circumstances a Territory court may forbid the publication of the name of a party. He felt constrained by the terms of s 57 of the Evidence Act (NT) which, the Supreme Court determined, ‘covers the field’ for this type of suppression order. Identification may only be suppressed where in ‘… the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party …’. Put shortly, the Supreme Court determined that the Territory legislature has all but excluded the possibility of a non-identification order being made in respect of any offender. MCT’s appeal against a magistrate’s refusal to suppress his name was dismissed.
Successive Territory governments have failed to give full legislative effect to the principle enshrined in art 40 of the United Nations Convention on the Rights of the Child. Australia ratified this Convention in 1990. Article 16 of the Convention protects children from arbitrary or unlawful interference with their privacy and art 40 states that children accused of a criminal offence must be treated in a manner ‘… which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.’ The Territory is also out-of-step with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’) which provide:
8.1 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
The United Nations Committee on the Rights of the Child encourages state parties to implement their international obligations under the Convention on the Rights of the Child in light of the Beijing Rules. Australia has publicly supported this approach, but the Beijing Rules are not binding under international law.
A body of academic literature supports the proposition that the labelling of a child as a criminal increases the risk of the child coming to view themself as deviant, and behaving accordingly. Instead of being ‘conducive to rehabilitation’, as the Crown argued in MCT, public shaming of child offenders can have a disintegrative and stigmatising effect, tending to create a class of outcasts, particularly within already marginalised sectors of the young population.
MARK HUNTER is a Darwin barrister.
The Alcohol Court Act 2005 (NT) commenced on 5 July 2006. It operates in a similar fashion to the CREDIT NT program, or Drug Court. However unlike that court, which deals with accused people on bail, the Alcohol Court is a sentencing court.
People charged with criminal offences (which can be dealt with in the Magistrates Court) and who have a history of alcohol abuse, are eligible for admission. Normally these participants would be facing a period of imprisonment for their criminal behaviour. The Alcohol Court is equipped with new statutory powers to make intensive sentencing orders, known as intervention orders. The intervention orders are overseen by Correctional Services and include the imposition of curfews, submission of participants to regular alcohol consumption testing, and restrictions on travel outside a particular area. Failure to adhere to conditions imposed by the Alcohol Court may result in a participant having to serve up to 14 days in prison. On release, participants may then be directed to resume compliance with the intervention order. Prohibition orders can also be made, either as a condition of bail or as part of a sentence structure. These orders restrict or prohibit the participant from consuming alcohol, purchasing alcohol, or remaining in licensed premises. In such circumstances the court will inform the Director of Licensing that the person is subject to a prohibition order. The Director can then inform licensees who may come into contact with the participant. Given the relatively small population in remote areas, this type of order is not as unenforceable as it may appear to urban readers.
The magistrate is assisted by a court clinician, who determines whether a person is alcohol dependent, and then recommends programs for treatment and rehabilitation, employment and training, counselling and accommodation.
Juvenile offenders are not eligible for the Alcohol Court. However, the Youth Justice Act (which commenced on 1 August 2006) provides a broad range of sentences and interventions for juvenile offenders. The current Juvenile Justice Act has no specific provisions for alcohol abuse intervention.
At present, the Alcohol Court only sits in Darwin and Alice Springs. This has raised criticism, particularly from remote communities, many of which experience high levels of alcohol-related dysfunction. It is not anticipated that Alcohol Court facilities will expand into remote areas because of the lack of support services such as residential rehabilitation centres, correctional services programs, and the capacity of the court clinician to travel on court circuits. In addition, only people charged with criminal offences are eligible for the program. Those who come to police attention simply through being brought into protective custody or taken to a sobering up shelter through their intoxication, will be ineligible. It is often such people who require intervention the most.
RUTH BREBNER is a lawyer in the Northern Territory Department of Justice.
ABC Learning Centres Ltd controls over 800 childcare centres in Australia and the US, up from 18 centres in 1997. The company is listed on the Australian Stock Exchange. In 2004–2005, ABC Learning earned profits of over $50 million, and in May 2006 its shares were trading at $8, with a market capitalisation of over $2.5 billion. The Australia Institute has estimated that in 2005–2006 ABC Learning will receive approximately $206 million as an indirect payment from the Commonwealth as a result of Child Care Benefit paid to parents with children attending ABC Learning childcare centres.
So what was ABC Learning doing in the Victorian Supreme Court appealing against a Magistrate’s decision to fine the company $200 (ABC Developmental Learning Centres Pty Ltd v Wallace  VSC 171, 3 May 2006)? The fine was imposed earlier this year for breaches of ss 26 and 27 of the Victorian Children’s Services Act 1996 (‘the Act’). The breaches related to circumstances in which a two-year-old boy ‘escaped’ from an ABC Learning childcare centre in 2003 when under the supervision of ABC Learning staff. The boy was found unharmed shortly afterwards. The Victorian Department of Human Services (DHS) prosecuted ABC Learning for breaching the Act, which among other things requires childcare centre owners to protect children from hazards and to maintain adequate supervision of children.
ABC Learning appealed against the Magistrate’s decision on the ground that the failures of its staff in relation to the child’s escape should not be attributed to the company. The Magistrate found that two child care workers had failed to take adequate precautions to protect the child from hazards and adequately supervise him. DHS could have prosecuted the staff under the Act, but it chose not to. In ABC Learning’s submission, the staff were entirely to blame, not the company. The appeal raised a rather vexed question of law: when should liability for commission of a crime be attributed to a company, an artificial legal entity, which can only act through human agents? In the Victorian Supreme Court, Bell J upheld the Magistrate’s decision on the issue of attribution of liability. Bell J held, correctly in my view, that the legislation in question attributed liability for the actions of its workers to the company. That is, the legislation created offences which were regulatory in nature. In many instances, legislatures pass laws which are designed to regulate activity in the public interest by imposing strict, non-delegable duties on companies operating in the relevant sphere of activity. As noted by Bell J, the imposition of criminal liability is an important mechanism for holding companies and other persons accountable for breaching regulatory standards. In this case, the Magistrate had been correct in rejecting ABC Learning’s submissions that the failures of the child care staff were not failures of the company, because it had done all it could to ensure that such failures did not occur. In the opinion of Bell J, these matters were relevant only to penalty, not liability.
So why was ABC Learning seeking to avoid liability in this case? Was it oblivious to the implications for its staff, and the company’s reputation, of a successful appeal? ABC Learning was, in effect, arguing that its staff should carry more risk in a sector which is already renowned for the disparity between the weight of responsibility carried by workers and their (inadequate) rates of remuneration. Was it also oblivious to the possibility that the state government would take steps to amend the legislation to ensure corporate liability could not be avoided so easily in the future? It seems unlikely that ABC Learning Centres, given its resources, would have been so poorly advised. More likely is that ABC Learning was flexing its muscles with DHS, to remind the regulator that with significant resources at its disposal to fund litigation, prosecutions should be carefully considered. Supporting this conclusion is the fact that ABC Learning has also mounted a legal challenge to DHS’ investigative powers under the Act. Or perhaps this analysis is a bit simplistic.
JOHN HOWE teaches law at the University of Melbourne.
Victoria is in the process of establishing the first community justice centre in Australia. The Neighbourhood Justice Centre (NJC) will be located at the former TAFE site in Collingwood and service the City of Yarra community. It is a 3 year pilot project which will open in January 2007 and be independently evaluated over the life of the pilot. The NJC aims to reduce re-offending and crime rates, enhance community perceptions of safety and confidence in the justice system, and improve access to justice for the Yarra community.
The NJC follows in the footsteps of overseas community justice centres, such as the Red Hook Community Justice Center in Brooklyn, New York. The development of strong partnerships between the court, local and state governments, service providers, residents, local traders and community groups are the key elements to the successful development of a community justice centre. These partnerships are aimed at examining more meaningful and relevant ways of doing justice in the local community.
Input around the development of the NJC is being sought from the Yarra community through public forums, focus groups, one-on-one interviews and workshops. Recent consultations included seven resident community forums convened in March 2006 throughout the municipality, where the overall response from the community was extremely positive in relation to the NJC project itself as well as the philosophies that underpin its operations. A Community Liaison Committee (CLC) has also been established to guide the development of the NJC. The CLC is made up of local residents, traders, representatives of groups who are over-represented in the justice system and some local service providers such as the City of Yarra. Once the NJC is operational, a governance structure will be put into place which will include members of the community.
The NJC will incorporate a multi-jurisdictional court and offer access to a range of services to benefit victims, defendants, civil litigants and the local community. The NJC will sit as a division of the Magistrates’ Court and Children’s Court (Criminal Division) but exclude committal proceedings and serious sexual offences. Civil matters will include compensation through the Victims of Crime Assistance Tribunal, intervention orders and some Victorian and Civil Administrative Tribunal lists such as Residential Tenancy, Guardianship and Administration and Civil Claims.
One principal magistrate will hear all matters at the NJC with the aim of achieving holistic outcomes for people at the Centre. The magistrate will apply therapeutic and restorative approaches to matters, where appropriate. For the first time in Australia, community members are participating in the selection of the NJC magistrate. These people were drawn from the CLC and formed part of the NJC magistrate interview panel.
Victoria already has a number of other specialist jurisdictions which the NJC can learn from such as the Drug Court, the Koori Courts and the Family Violence Division. The NJC will provide a further opportunity to develop and drive cultural and procedural change in the justice system and to help ensure that the justice system is more responsive to community expectation and needs. This is particularly important for vulnerable and marginalised groups in our community such as the homeless and those with disabilities and mental health problems. For more information: <http://www.justice.vic.gov.au>
NEIGHBOURHOOD JUSTICE CENTRE PROJECT TEAM, Department of Justice, Victoria.
The Evidence (Document Unavailability) Bill has been introduced by Attorney General, Rob Hulls, as a companion Bill to the Crimes (Document Destruction) Act 2006. The legislative package is in response to the controversial British American Tobacco case involving Rolah McCabe, who has since died of smoking-related lung cancer. In that case, Eames J in the Supreme Court, concluded that documents were destroyed by BAT and their lawyers, Clayton Utz, which would have helped her case. His awarding of $700,000 was overturned on appeal.
Like the Crimes Act amendments which make unfair document destruction an indictable offence, the new Bill defines a document as unavailable if ‘it is, or has been but is no longer, in the possession, custody or power of a party to a civil proceeding and the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification (whether before or after the commencement of the proceeding)’. The Bill amends the Evidence Act 1958 to allow a court in a civil matter, if it appears documents are unavailable, to make any ruling or order it considers necessary to ensure fairness to all parties to the proceeding, including: drawing an adverse inference; presuming a fact in dispute between the parties to be true in the absence of evidence to the contrary; preventing certain evidence from being led; striking out all or parts of a defence or a statement of claim; or reversing the evidential burden of proof.
In other news, apparently British American Tobacco and its lawyers are looking to source new copy paper for their offices. Word on the street is that they are after a copy paper with a high recycled content and which does not cause jams … in their shredders.
JAMES BEAM is a Melbourne lawyer.
Rumours abound that Attorney General McGinty will soon announce that WA will join the ACT and Victoria in having a state Human Rights Act. The UK Human Rights Act 1998 has had a considerable impact on the debate about the protection of human rights in Australia, not least because many (but not all) of the features of the UK statute have been incorporated into the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities Act 2006. A significant feature of each of these instruments is the novel power conferred on superior courts to make a non-binding declaration of incompatibility where a statute is held to be inconsistent with the human rights included in the instrument. However, it is the fresh attention directed to the reform of the parliament and the practices of the executive branch of government that are equally significant aspects of human rights legislation.
The UK and Victorian instruments provide that, subject to exceptions, it is unlawful for a public authority to act in a way that is incompatible with a human right. The UK legislation also establishes an independent cause of action against public authorities who act in contravention of the Human Rights Act. This is not the case in Victoria, where, if otherwise than because of the Charter a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of the Victorian Charter. The ACT statute does not contain similar provisions to the UK or Victoria in relation to the duties of public authorities. It is clear that if we want to make a significant impact on the protection of human rights, state human rights laws must cast a duty on the executive branch to observe human rights and those laws must provide for an appropriate remedy to flow from a failure to observe the duty. Watch this space.
In the last few years, there has been a growing list of convictions overturned in WA. As the fallout continues following the controversial decision of the High Court in November 2005 to quash Andrew Mallard's 1994 murder conviction, some media commentator's and critics have sought to portray this growing list as evidence of a rot at the heart of the WA justice system. It is against this backdrop that a WA Innocence Project has been established aimed at investigating cases of wrongful conviction. The project is part of a worldwide network based on the famous law school project in New York which has so far exonerated over 150 people through the use of DNA. The chairman of the board of the WA Innocence Project is John Button, whose conviction for the murder of his girlfriend in the 1960s was overturned by the WA Supreme Court after almost 40 years. The project also boasts a number of high profile and influential supporters including Malcolm McCusker QC, Tom Percy QC, author Estelle Blackburn and journalist Bret Christian. A brief review of the project’s website suggests that the efforts of the project are geared towards a case which has received extensive media coverage of late — the appeal by Salvatore Fazzari, Jose Martinez and Carlos Pereiras against their conviction in May of this year for the 1998 murder of Phillip Walsham. It apprears the project is also considering looking into Arthur Greer's case, who is in prison for the 1983 murder of Perth teenager, Sharon Mason. The website for the project is at <http://www.innocenceprojectwa.com> .
WA EDITORIAL COMMITTEE