Client News (Vic), 4th Quarter 2007
The long-running case of domestic violence victim Heather Osland continues to raise legal questionsMore...
Part 2 of this article on the Osland caseMore...
Since 1 July this year, new applications for parenting orders have required families to engage in family dispute resolution (FDR) before their application can be considered by the courtMore...
The authority of the federal government appears to be under growing public scrutiny as the so-called “War on Terror” transcends expiry and exposes ongoing threats to human rightsMore...
Part 2 of this article on the legacy of the "War on Terror"More...
The opening of a specialist sex offences unit promises to reform the justice system’s response to sexual crime in VictoriaMore...
By 20 October, employers are legally required to have distributed the federal government’s “Workplace Relations Factsheet” to all existing employeesMore...
Resources on the WebMore...
Family Relationships Online and Centre for Policy DevelopmentMore...
The long-running case of domestic violence victim Heather Osland continues to raise legal questions 11 years after she was convicted of murdering her abusive husband.
The first set of legal challenges came with a series of appeals made by Ms Osland against her sentence, which led all the way to the High Court. Her defence of "battered woman’s syndrome" attracted huge public interest and, although unsuccessful in her case, subsequently became a vehicle for law reform in the crime of homicide. Heather Osland served 9½ years of a 14½ year prison sentence before she was released on parole in 2005.
During her imprisonment Ms Osland lodged a petition for mercy with the then Governor of Victoria, seeking a pardon and release from jail. More than a year later, in September 2001, a refusal of the petition was announced by Attorney-General Rob Hulls, who released a media statement that included the following:
"This week I received a memorandum of joint advice from the panel [three Queen’s Counsel] in relation to the petition. The joint advice recommended on every ground that the petition should be denied.
"After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition."
Keen to know exactly what advice the government had relied on to refuse her petition, Ms Osland applied for access to the relevant documents under the Freedom Of Information Act 1982 (Vic) (FOI Act). When the Department of Justice denied the application for access on the basis of the exemptions available under s32 (legal professional privilege) and s30 (1) (internal working documents) of the FOI Act, the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT) for review. Ms Osland was not challenging the conclusion that the documents were exempt on the basis of legal professional privilege. Rather, she was alleging that privilege in relation to the joint advice had been waived by the press release published by the Attorney-General.
Then VCAT President, Justice Morris, acknowledged the s32 exemption but concluded that access should be granted because the public interest requirement outlined in s50 (4) of the FOI Act overrode the legal professional privilege in this instance.
The Secretary to the Justice Department promptly obtained leave to appeal the VCAT decision and the Court of Appeal recently heard the matter in Secretary, Department of Justice v Osland [2007] VSCA 96.
In the leading judgement of the Court of Appeal, President Maxwell examined the authorities in relation to the waiver of legal professional privilege and disagreed that any waiver had occurred. He concluded that there was no inconsistency or waiver by the Attorney-General in disclosing the presence of the legal advice in the press release as a means of explaining his decision while, at the same time, seeking to preserve the confidentiality of the contents of that advice. As a result, legal professional privilege still applied to the advice documents and they were subject to the exemption from release under the FOI Act.
Continued below
Copyright, Law Institute of Victoria
Having determined that the exemption under s32 applied to the documents, the Court of Appeal then had to consider whether the ‘public interest override’ as provided in s50 (4) of the FOI Act applied. This section provides that exempt documents can still be the subject of an order for release if strong public interest requires disclosure.
After careful examination, the Court of Appeal concluded that, in this case, VCAT had erred in finding that the public interest override provided in s50(4) should apply in this case. The Court of Appeal agreed with the argument of the Solicitor-General that there is a difference between what the public is ‘interested in’ and what is ‘in the public interest’. The fact that Ms Osland’s case received media coverage and was ‘of interest’ to the public did not give rise to a requirement to release the documents ‘in the public interest’ under s50 (4).
Ms Osland’s case is not yet closed. At the time of writing, she is seeking a waiver of her parole along with leave to appeal the FOI decision to the High Court of Australia. Developments in the Osland case will be watched with great interest as the freedom of information provisions continue to be tested in the courts.
More information
From the LIV Bookshop, Freedom of Information and Privacy in Australia by M Paterson, $196
To learn more about freedom of information, visit www.foi.vic.gov.au
Since 1 July this year, new applications for parenting orders have required families to engage in family dispute resolution (FDR) before their application can be considered by the court. By the same time next year it is expected that FDR will be compulsory for all applications including those seeking changes to existing parenting orders. Exceptions do apply including for family violence, child abuse, and urgent applications.
This procedural change is part of a significant and expansive program of family law reform arising from the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the Act). In the context of post-separation parenting, it emphasises a commitment to protecting the best interests of children and goes further to promote alternative conflict resolution outside the courts.
Circumventing the formality of the traditional litigation process is often the best way to reduce animosity between parties and curtail the emotion that inevitably follows a family break-down. Not unlike other forms of Alternative Dispute Resolution (ADR), FDR can also facilitate more creative solutions to better suit ongoing relationships. Where children are involved, it is particularly important that healthy family relationships be preserved.
While forced FDR may seem somewhat pragmatic in the family context, qualified mediators ensure the process is both professional and comfortable. A register of FDR providers has been established by the Federal Attorney-General’s Department to ensure they have the necessary skills, training and experience to maximise the chance of successful mediation. The register includes private practitioners as well as government-funded Family Relationship Centres, community-based organisations, lawyers and others designated to provide FDR under the Family Law Act 1975 (Cth). All are obliged to explain the process being undertaken, outline the fees involved, clarify the rights of each party, advise on suitable parenting plans where children are involved and make clear the other services available. The process is confidential and an assessment regarding the suitability of FDR is made in each case before it is commenced.
Where FDR is unsuccessful, a certificate of compliance is issued so that families can proceed with the traditional court process.
It is expected that compulsory FDR will be fully effected by 1 July 2008, coinciding with the third and final stage of implementing changes to the Child Support Scheme; changes designed to reduce conflicts between parents and encourage shared parenting. Early intervention measures like these are intended to provide an alternative way for parents to negotiate their post-parenting responsibilities. In a broader context they represent a more efficient way to resolve disputes; saving on court and social welfare costs while improving the quality of settlements for families.
From the LIV Bookshop, Anthony Dickey, Family Law (5 ed, 2007), $150
For general information and to find a registered FDR provider, visit www.familyrelationships.gov.au
The authority of the federal government appears to be under growing public scrutiny as the so-called "War on Terror" transcends expiry and exposes ongoing threats to human rights. The latest indiscretion was revealed when a Federal Court judge overruled a decision by Immigration Minister Kevin Andrews to revoke the professional employment visa of terrorism suspect Mohamed Haneef and place him in immigration detention.
Dr Haneef was taken into custody on 2 July and was held for 12 days under special new anti-terrorism powers. He was charged with "recklessly" providing support for a terrorist organisation after lending his mobile SIM card to his second cousin Sabeel Ahmed, who, with brother Kafeel, was implicated in the attempted terrorism attacks in London and Glasgow earlier this year.
Despite the presumption against granting bail to terrorism suspects, the Brisbane Magistrate hearing Dr Haneef’s case was not convinced that the Gold Coast-based doctor posed a threat and bail was granted at $10,000. Attorney-General Philip Ruddock criticised the decision at the time, questioning the courts’ interpretation of the legislation and suggesting the government might need to consider making legislative amendments. His comments indicate a growing tension between the law and government, which was only compounded by Minister Andrews’ improper application of the Migration Act 1958 (Cth) when he revoked Dr Haneef’s visa.
Since ‘9/11’, forty or more anti-terrorism statutes have been passed in Australia. More recently, parliament has considered new search powers for Australian Federal Police (to match those of their state counterparts) and new censorship laws banning publications, films and computer games that "advocate" terrorism. While such measures may reflect the government’s commitment to national security, the United Nations (UN) Special Rapporteur’s Report - Australia: Study on Human Rights Compliance while countering terrorism - warns of their contempt for civil liberties. The UN report scrutinises legislation and regulations regarding: definitions of terrorist acts and organisations, detention and search durations, the use of control orders and preventative detention, disclosure of information to suspects, and compliance with international humanitarian law.
Perhaps the most frightening legacy of the War on Terror is the temptation to depart from the rule of law. It is also, ironically, a further source of antagonism feeding the political and religious conflicts that can lead to terrorism. That is why an independent judiciary that can ably check and balance executive power is so important.
In comments following the High Court’s recent endorsement of control orders issued against "Jihad Jack" Thomas, dissenting judge Michael Kirby reiterated the responsibility of the courts to defend the ‘separation of powers’ doctrine. He warned that "if the courts are seen as effectively no more than compliant agents of the other branches of government, they will have surrendered their most precious constitutional characteristic" (Thomas v Mowbray [2007] HCA 33, at para 368). The Federal Court’s decision in Haneef’s case should provide some reassurance, but with Minister Andrews planning an appeal against the decision, the integrity of the court process remains under threat.
It seems that in this current war, where the end is undefined, the scope of power to contaminate the trial process and undermine basic legal principles is ongoing. Protecting fundamental freedoms and rights without compromising the rule of law is the constant challenge. Hopefully, democratic principles and a robust and independent legal system will provide the necessary balance.
From the LIV Bookshop, A Lynch and G Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws, $130
The Specialist Sex Offences Unit of the Office of Public Prosecutions comprises a team of approximately 30 advocates and administrative staff, led by Crown prosecutors and senior solicitors with specialist training in handling sexual assault claims. They have been allocated $2.7 million of funding, from a $34.2 million package of sexual assault initiatives, which reflects the government’s commitment to cultural change in this sensitive area of the state’s criminal justice system. The broader community has also been put on notice, with state Attorney-General Rob Hulls insisting that "changes in sexual assault law, policing and prosecution practices need to be reinforced by attitudinal change in the community."
The specialist unit was launched earlier this year in response to a landmark Sex Offences report produced by the Victorian Law Reform Commission (VLRC) in 2004. The report made 201 recommendations for reform aimed at improving victim rights from the very first point of contact with the justice system. Among the proposals were improved police responses to initial reports of sex abuse claims, tougher rape laws to make it easier for victims to give evidence, bans on the cross-examination of victims by accused sex offenders, and the use of closed circuit television as a standard mode of evidence delivery for complainants at committal or trial.
Sensitivity to the emotional, social and psychological impact of victim trauma is now recognised as being paramount to helping victims come forward and confront their accused. Commenting on the launch of the specialist unit, Director of Public Prosecutions Paul Coghlan QC said "while we cannot take away the pain of the victims, we can ensure they get more appropriate support and they are treated with sensitivity and respect."
Women and children are the typical victims of sexual crime and are often reluctant to report offences or give evidence. Centres Against Sexual Assault (CASA) have suggested this may be due to claims of further stress and abuse reported by victims who have taken their cases to court. But the recent sentencing of triple murderer Peter Dupas suggests that the courts are now taking a more empathetic approach to victim rights. In his judgement, Victorian Supreme Court Judge Phillip Cummins called for sentencing laws "to be amended to state specifically that a purpose for which sentencing may be imposed is the vindication of the rights of victims" (DPP V Dupas [2007] VSC 305 at para 16).
Barristers are also being trained and provided with guidelines and feedback by the specialist sex offences unit to ensure consistency in the state’s response to sex offences.
No other state or territory appears to have such a comprehensive specialist approach to sexual crime, which makes Victoria a national leader in the prosecution of sexual assault offences. The initiative is part of a broader review of criminal law procedures being undertaken by the state government in an effort to improve the efficacy of the justice system for both the courts and the community.
"Completed Projects" page at www.lawreform.vic.gov.au
The Workplace Relations Factsheet is part of recent changes to the workplace relations system and sets out information about the Australian Fair Pay and Conditions Standard, employee protections and the roles of the Workplace Authority Director and Workplace Ombudsman.
With the federal election looming, the issue of workplace relations has become a prominent talking point. Critics of "WorkChoices" have been particularly vocal since the new laws were introduced by the government in March 2006. The Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth), which commenced on 1 July this year, could be seen as an attempt by the Howard government to allay concerns in time to secure an election victory.
The "stronger safety net" established under the new legislation provides for:
The Fairness Test, which is essentially a modification of the no-disadvantage test, is administered by the Workplace Authority and applies to agreements that change or remove protected award conditions (such as penalty rates and leave loadings). This is for employees in jobs or industries where an award normally applies. For Australian Workplace Agreements (AWAs), the test only applies for employees earning less than $75,000 per year.
This revised approach was introduced in response to concerns that protections were being traded off under workplace agreements without fair compensation. Under the new laws the Workplace Authority determines whether the agreement meets the fairness test and where an agreement fails the test, parties are given 14 days in which to remedy it.
Also focusing on the "fairness" theme, the Australian Labor Party (ALP) released its "Forward with Fairness" policy, promising to overhaul the WorkChoices regime if elected to government. The ALP’s proposals include encouraging the referral of legislative power from state governments, phasing out AWAs and other statutory individual contracts, reversing certain unfair dismissal provisions, and lifting current restrictions on the content of awards in order to strengthen the safety net in collective bargaining and common law agreements. In addition, "Fair Work Australia" would be established as the single regulatory body replacing the Australian Fair Pay Commission, the Australian Industrial Relations Commission, the Australian Building and Construction Commission, the Office of the Employment Advocate (now the Workplace Authority) and the Office of Workplace Services (now the Workplace Ombudsman).
It seems the workplace relations landscape has become a major battleground in this year’s electoral campaign. The future of workplace relations in Australia appears to be in the hands of the voters.
www.consumer.vic.gov.au (Consumer Affairs Victoria)
As reported in the second quarter issue of Client News, new legislation is due to streamline the property market by replacing Victoria’s 65,000 bodies corporate with owners corporations (OCs). The Owners Corporation Act 2006 (Vic) is due to come into operation in January 2008 and the Consumer Affairs Victoria (CAV) website features a "Bodies Corporate Factsheet" that explains the changes ahead. The Factsheet clearly defines the powers and functions of OCs, as well as record-keeping obligations, financial accountability, and the new three-tiered approach to dispute resolution involving internal mediation, CAV intervention and referral to the Victorian Civil Administrative Tribunal. It also explains the limitations imposed on the developer’s role in the OC and the registration requirements for paid managers. The enhanced regulations affect one in five Victorians who own, live in, manage or develop flats and apartments so the Factsheet will be a useful tool for this new phase in Victoria’s thriving property market.
Also featuring on the CAV website are guidelines on unfair terms in consumer contracts, which aim to simplify the provisions of the Fair Trading Act 1999 (Vic) (the FTA) to give businesses and consumers a better understanding of their contractual obligations and legal rights. It is a timely publication, as the property market is inundated with a proliferation of financial-lending products targeted at low-income earners. Future consultation with regulators, industry and consumer groups will assist CAV develop final guidelines by mid-2008, which may affect further legislative change.
www.consumeraction.org.au (Consumer Action Law Centre)
The latest census figures from the Australian Bureau of Statistics (ABS) reveal an alarming increase in the number of families struggling to meet mortgage and rental commitments. While the government’s First Home Owner Grant has helped, it is the non-traditional lending products that are causing the greatest concern. Vendor terms contracts are just one example. They are high-risk and subject to little regulation, so it is worthwhile visiting the Consumer Action Law Centre website to view its recently-released research report: Vendor Terms – Rhetoric & Reality. The report makes a number of astute recommendations for law reform and changes to the existing consumer credit code to better protect consumers.
Family Relationships Online
www.familyrelationships.gov.au
The family relationships website provides information and advice about family relationship issues to "help families build better relationships". It outlines the government-funded services available to families and explains the reforms to the family law system. Special regard is given to different family circumstances and the various phases of relationships from "getting together" to "building relationships", "handling changes", "separation" and "parenting after separation". The information is easy to follow, with specific advice for children, teenagers, couples, parents, grandparents, service providers and family dispute resolution providers.
Centre for Policy Development
www.cpd.org.au
Supported by independent website NewMatilda.com, the Centre for Policy Development (CPD) is a new public interest think tank promoting alternative voices in Australia’s public debate. The website publishes research papers and proposals on a diverse range of policy challenges, shared with a broader audience of concerned citizens, policy makers, and the media. Topics range from national wealth and real world economics to health, education, and environment, along with human rights, media, arts and culture, and work, family and care.
Use of this newsletter is subject to our standard terms and conditions. In particular, you should not construe any part of this newsletter as constituting legal advice. Content of 'Client News (Vic)' provided courtesy of Law Institute of Victoria. 'In Touch With the Law' provided courtesy of Law Society of NSW.