FIREARM PROHIBITION ORDER by Terry O'Gorman

FIREARM PROHIBITION ORDER

If you have a legitimate need for access to firearms including if you are engaged in farming or related activity, close attention needs to be given to the proposed Firearm Prohibition Order which was introduced under the Community Safety Bill that was brought into Queensland Parliament on Wednesday 1 May 2024 by Police Minister Mark Ryan.

It is claimed that the Queensland FPO Model aligns with similar schemes used throughout Australia but the extent to which schemes in other States protect potential miscarriages of justice from occurring with FPOs was not referred to by the Minister in his Introduction Speech.

The new FPO Scheme will allow the Queensland Police Commissioner to make a Firearms Prohibition Order without having to get Court approval for a duration of 60 days if the Commissioner is satisfied it is in the public interest to make the Order. If a longer duration is necessary the Commissioner may apply to the Court for a further FPO.

The term ‘public interest’ requires close analysis as to the ease with which a Police issued FPO can occur.

The Bill provides that when considering if it is in the public interest to make an FPO the decisionmaker may have regard to:-

the individual’s criminal or domestic violence history including whether a person has been subject to a Domestic Violence Order;

the individual’s behaviour, particularly violent or aggressive behaviour;

whether the individual has communicated to another individual that they intend or wish to commit a serious offence;

whether the individual has been subject to an Order under the Dangerous Prisoners (Sexual Offenders) Act 2003; and

any other matter or information which indicates possession of a firearm by an individual would be likely to pose a risk to public safety or security.

If a person needs access to a firearm for their work by being employed in the rural sector or as a security guard he/she can have a Police FPO Order made against them simply on the basis that they are subject to a Domestic Violence Order. In that regard many people agree to Domestic Violence Orders without admissions in order to avoid the emotional upset and costs of fighting a Domestic Violence Order and in that regard it is particularly important to note that domestic violence is defined in the relevant law as including coercive control or even emotional or economic abuse.

The Queensland Police can consider an individual’s ‘aggressive behaviour’ in deciding whether to issue an FPO. Such ‘aggressive behaviour’ does not even have to be the subject of a criminal charge.

An FPO can also be made where an individual has communicated to another individual that they intend or wish to commit a serious offence. It would be acceptable for an FPO to be laid by a Police Officer if the serious offence involved potential grievous bodily harm or a bank robbery or the like and there is an immediate threat of that event happening. It can be imagined, however, that particularly in domestic violence cases a person can falsely accuse a spouse or a partner of having made a threat that they intend or wish to commit a serious offence where the allegation is ’word against word’ in the context of a bitter breakup of a relationship.

It is to be noted that the proposed scheme allows a Police Officer delegated by the Police Commissioner to issue an FPO for 60 days. While a person may appeal the making of the Order, the delay and costs inherent in an Appeal are considerable.

While control of firearms within the community is vital, it is important that unintended consequences that can flow from a Police issued FPO for 60 days before the Police have to go to Court be addressed as a matter of urgency before this Bill is passed by Parliament.

What happens to a farmer who requires access to a firearm for his/her work including dealing with wild animal attacks on stock if the local Police Officer serves him/her with an FPO.

Imagine the scenario of a helicopter pilot whose job it is in rural areas to cull wild animals from the air if that person can lose their livelihood immediately a Police Officer issues an FPO without the matter first having to go to Court.

The FPO proposal should be changed to require the Police to get a Court Order before an FPO can be issued particularly in relation to people whose occupations are at risk if they are no longer able to access firearms.

by Terry O'Gorman

Media Release - Criminal Cases Review Commission by Terry O'Gorman

The Folbigg Pardon highlights the necessity to establish a national Criminal Cases Review Commission in Australia.

Queensland Council for Civil Liberties Vice-President Terry O’Gorman said that the Folbigg case shows how the current system for remedying miscarriages of justice in Australia is dependent on politicians agreeing to set up a Special Inquiry into a case said to be a miscarriage of justice.

“The more controversial the case the less likely a politician (usually the Attorney-General) will set up a public inquiry to ascertain if a miscarriage of justice has occurred because the Attorney-General/politician fears a law and order blowback”, Mr O’Gorman said.

Mr O’Gorman said that the UK (England, Wales and Scotland) have had Criminal Cases Review Commission for years and New Zealand set up a similar body in 2019.

“The Folbigg case amply demonstrates the necessity for a national Criminal Cases Review Commission in Australia”, Mr O’Gorman said.

Mr O’Gorman said that public inquiries into miscarriages of justice are set up by the government of the day in the various States and Territories and the person constituting the Inquiry and Counsel Assisting is chosen by the government.

Mr O’Gorman said that as the New Zealand Minister for Justice said in his cabinet submission for a Criminal Cases Review Commission “there is a public perception that the status quo is not sufficiently independent of the Executive (government of the day) to remedy miscarriages of justice.[1]

“If New Zealand with a population the size of Queensland has acted on the necessity to establish a Criminal Cases Review Commission it is particularly important that a national Criminal Cases Review Commission spanning all Australian States and Territories be established, Mr O’Gorman said.

[1] See Minister of Justice New Zealand Cabinet submission on establishing a Criminal Cases Review Commission.

by Terry O'Gorman

Blog - New Queensland Domestic Violence Laws introduced 14 October 2022

NEW QUEENSLAND DOMESTIC VIOLENCE LAWS

INTRODUCED FRIDAY 14 OCTOBER 2022

New domestic violence laws which start to implement new coercive control laws were introduced into the Queensland Parliament on Friday 14 October 2022.

Coercive control constitutes a pattern of behaviours perpetrated against a person to create a climate of fear, isolation, intimidation and humiliation.

In March 2021 the Queensland Government established a Taskforce to examine coercive control and review the need for a specific offence of domestic violence. The Taskforce recommended the creation of a new standalone offence of coercive control. However it also made it clear that, prior to the introduction of a standalone offence, system wide reform was needed to ensure sufficient services and supports are in place across the DV service and justice systems, along with critical amendments to existing legislation which should be implemented immediately. This includes that systems need to respond better to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.

The Taskforce recommended immediate legislative reforms that are required to strengthen Queensland’s current response to coercive control and this Bill implements those recommendations through amendments to the Criminal Code, the Domestic Violence Act, the Evidence Act and the Penalties and Sentences Act.

Victims of coercive control told the Taskforce about the prevalence of stalking and harassing behaviour particularly electronic surveillance of them and their children. The Taskforce also noted that the stalking offence is underused by Police and Prosecutors in the context of coercive and controlling behaviours.

The amendments in the Bill seek to reflect the association between stalking and domestic violence and to ensure that traditional attitudes, practices and misconceptions do not impede the offence being used to hold perpetrators to account. The Bill modernises the offence of stalking so that it reflects criminal behaviour including the interaction between stalking and coercive control.

The offence of stalking is to be renamed “unlawful stalking, intimidation, harassment or abuse” and will broaden the type of offending captured by the offence and better reflect the way an offender might use technology to facilitate stalking, intimidation, harassment or abuse.

The additional conduct that will be captured by the new offence of stalking, intimidation, harassment or abuse will include contacting a person in any way using any technology and monitoring, tracking, or surveilling a person’s movements, activities or interpersonal associations without the person’s consent. This includes checking the recorded history in a person’s digital device, reading a person’s SMS messages, monitoring a person’s email account or internet browser history and monitoring a person’s account with a social media platform.

It will also include publishing offensive material on a website or social media platform in a way that will be found by or brought to the attention of a person.

It will include giving offensive material either directly or indirectly to a person including by using a website or social media platform.

It will also include a threatening, humiliating or abusive act against a person whether or not involving violence or the threat of violence with an example of that conduct being publishing a person’s personal information such as the person’s home address or phone number on a website.

The Bill introduces a new circumstance of aggravation with a maximum penalty of 7 years imprisonment for the offence of stalking, intimidation, harassment or abuse if a domestic relationship exists between the offender and the stalked person, and domestic relationships will include former relationships.

The Bill will increase the maximum penalty for the offence of contravening a Restraining Order under the stalking legislation to 3 years imprisonment and the Bill also provides for a circumstance of aggravation if the person has been convicted of a domestic violence offence in the 5 years before the contravention of the Restraining Order. The maximum penalty for contravening a Restraining Order with a circumstance of aggravation will be 5 years imprisonment. The maximum penalty will apply regardless of whether the domestic violence offence was committed before or after commencement of the Bill.

Contravening a Restraining Order with a circumstance of aggravation will be an indictable offence but the Bill provides that an offence of contravening a Restraining Order with a circumstance of aggravation must be heard and decided summarily (in the Magistrates Court) unless the Defendant elects for Trial by Jury.

The Bill provides that when a Court makes a Restraining Order the default period is 5 years unless the Court is satisfied that the safety of a person in relation to whom the Restraining Order is made is not compromised by a shorter period.

The Explanatory Notes to the Bill observe that the current definition of domestic violence sends a confusing message about the nature of coercive control in domestic violence and may contribute to misidentification of domestic violence by not properly reflecting coercive control as being the key component of domestic violence.

The Bill makes it clear that domestic violence includes behaviour that may occur over a period of time, includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear, and must be considered in the context of the relationship as a whole. There will be a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.

The Bill also considers cross-applications and requires that applications and cross‑applications be heard together.

The Bill requires the Court to identify the person most in need of protection in the context of the relationship as a whole and only enables the Court to make one Order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.

The Bill provides that a person is most in need of protection when the behaviour towards them is more likely than not to be (1) abusive, threatening or coercive or (2) controlling or dominating causing the person to fear for their safety or wellbeing or that of their child, another person or a pet and the person’s behaviour is more likely than not to be for the self protection of themselves or their child, another person or a pet, in retaliation of the other person’s behaviour towards them or attributable to the cumulative effect of the other person’s domestic violence towards them.

In deciding the person most in need of protection the Court must consider the history of domestic violence and the relationship between the parties, the nature and severity of the harm caused to each other, the level of fear experienced by each person, which person has the capacity to seriously harm the other person or control or dominate the other person and cause fear, and whether the persons have characteristics that make them particularly vulnerable to domestic violence.

The Domestic Violence Act will be amended to specify that where a party has intentionally used proceedings as a means of committing domestic violence including coercive control the Court has the power to award costs against them. The purpose of this is to ‘signpost’ to Lawyers and systems abusers that the Court has the power to award costs against people who use the legal system to continue abusive, coercive and controlling behaviour and the Bill specifically describes this type of behaviour as systems abuse or legal abuse. This is behaviour in which a person intentionally misuses the legal system to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.

A person’s criminal and domestic violence history is to be put before the Court to help determine the risk to the Aggrieved and whether to make a Protection Order and to assist in best tailoring the conditions of the Order to keep the victim safe.

The Court must consider the Respondent’s criminal and/or domestic violence history when making a Protection Order including a Temporary Order including a Domestic Violence Order by consent.

A Respondent’s domestic violence history will state where a previous Domestic Violence Order has been made by consent which is intended to assist the Court in determining the weight to place on the history as Orders made by consent do not require a finding that domestic violence has occurred.

There are also amendments to the Evidence Act to create a new category of protected witness with respect to any domestic violence offence including an offence of contravening a Domestic Violence Order. The prohibition on direct cross‑examination is extended to this new category of protected witness thereby bringing the complainant of a domestic violence offence within the protected witness scheme.

The current Section 132B of the Evidence Act which allows for relevant evidence of the history of the domestic relationship between the Defendant and Complainant to be admitted in criminal proceedings will be extended to cover all offences in the Criminal Code.

The Bill also makes evidence of domestic violence admissible whether that evidence relates to the Defendant, the person against whom the offence was committed, or another person connected with the proceeding.

The Bill implements a Taskforce finding that the full context of victim experiences of coercive control is not being consistently admitted in Court proceedings and has implemented a Taskforce finding that the patterned and cumulative nature of coercive control manifests in complex ways, is often not well understood and that domestic abuse can cause emotional and psychological harm to a victim. The Bill implements a Taskforce recommendation that the ability to present expert evidence on these issues may be needed to aid Juries and Judicial Officers in understanding and evaluating evidence from victims of coercive control.

The Bill defines an expert on the subject of domestic violence to include a person who can demonstrate specialised knowledge, gained by training, study or experience, of a matter that may constitute evidence of domestic violence. These provisions are modelled on Section 39 of the Evidence Act (WA).

The Taskforce found that many members of the community do not understand how the dynamics of domestic violence may impact on the behaviour of victims of DV such as why a victim of DV may remain in an abusive relationship.

The Bill provides the Court with a discretion to give Jury directions that address misconceptions and stereotypes about domestic violence. The amendments seek to enable Juries and Judicial Officers to be better informed and able to consider evidence of domestic violence that has been raised during a Trial. These provisions are also based on the Western Australian Evidence Act.

Section 11 of the Penalties and Sentences Act is amended to provide that the history of Domestic Violence Orders against an offender may be considered by a sentencing Court when determining an offender’s character.

A change to Section 359F of the Criminal Code to create a circumstance of aggravation where a previous domestic violence offence has occurred operates with a partial retrospective effect to the extent that a conviction for a domestic violence offence which occurred before the commencement of the Bill will be recognised as a previous offence for the purposes of the new circumstance of aggravation. The retrospective operation of the amendments is limited by the requirements that the offence be committed within the 5 years prior to the commencement.

Terry O’Gorman (Acc Spec (Crim) Qld)[1]

Robertson O’Gorman Solicitors

[1] The observations in this article are drawn from the Explanatory Notes of the legislation introduced on Friday 14 October 2022 in the Queensland Parliament.

by Terry O'Gorman

Blog 2 - Women’s Safety & Justice Taskforce Report

This is article two in a series of articles dealing with the July 2022 report of the Women’s Safety and Justice Taskforce headed by the Honourable Margaret McMurdo AC. This article will look at the major recommendations of the Report.

There were 188 recommendations many of which related to improving investigative procedures concerning sexual assault, and related matters.

The main recommendations are as follows:

That the Queensland Government establish a Victims’ Commissioner as an independent statutory office to promote and protect the needs of victims of all violent offences. The Commissioner will have a specific and dedicated focus on victims of domestic and family and sexual violence. (Recommendation 18)

That the Queensland Police Service (QPS) review and update Operational Policies and Procedures about the investigation of sexual violence cases. This will include reviewing policies and procedures relating to the use of pretext phone calls and questioning victim-survivors including about their intoxication at the time of the offence and matters that may be relevant to the excuse of mistake of fact. (Recommendation 30)

That the Queensland Police Service ensure that only specialist trained officers interview victim-survivors in sexual offences when a victim agrees to a recording being used as their evidence in chief in a criminal proceeding. (Recommendation 31)

That the Attorney-General amend Section 348 of the Criminal Code (Meaning of Consent) and 348A (mistake of fact) in relation to consent to provide that consent must be freely and voluntarily agreed rather than ‘given’ and that no regard must be had to the voluntary intoxication of an accused person when considering whether they had a mistaken belief about consent to sexual activity. (Recommendation 43)

That an independent Sexual Violence Case Review Board be established and chaired by the proposed Victims’ Commissioner and that the Board will consist of representatives from the DPP, QPS, professionals with sexual violence experience, people with lived experience of sexual violence and Aboriginal and Torres Strait Islander peoples and that the Board will review reports prepared by the QPS and the DPP about the respective agencies’ involvement in sexual offence cases and make recommendations to the Queensland Government about practice, policy, performance and systemic improvement. (Recommendation 46)

That the DPP review guidelines dealing with downloading information from a mobile phone or other device of a victim of sexual violence and the disclosure of relevant information in accordance with legislative obligations and the process for Defence lawyers to obtain additional information they consider to be relevant. (Recommendation 47)

That the QPS liaise with relevant technology companies to explore the feasibility of establishing a mechanism to enable the partial download of information from mobile phones and other devices of victim-survivors to enable only relevant information to be obtained and to protect and promote a victim-survivors right to privacy. (Recommendation 47 and 48)

That there be amendments to the Evidence Act to provide that the evidence of a victim or special witnesses in sexual proceedings be video and audio recorded for use in any retrial.

That the Attorney-General introduce the use of “ground rules hearings” for domestic and family violence and sexual offences. (Recommendation 57)

That the Queensland Intermediary Scheme pilot program consider whether the scheme should be expanded to apply to proceedings involving adult victims of sexual violence. (Recommendation 62)

That there be a Specialist Accreditation Scheme in relation to sexual violence cases and issues related to women and girls as accused persons and offenders in the criminal justice system. (Recommendation 68)

That there be a specialist list for sexual violence cases in the District Court. (Recommendation 69)

That the DPP design and implement a new operating model for the prosecution of sexual violence cases. (Recommendation 74)

That the law relating to similar fact (coincidence) and propensity (tendency) evidence in relation to all offences of a sexual nature be changed by adopting relevant Sections of the Evidence Act 1995 (NSW). (Recommendation 75)

Expand admission of preliminary complaint evidence under the Criminal Law (Sexual Offences) Act to all domestic violence offences and that there be expanded use of preliminary complaint evidence generally including in sexual offence prosecutions. (Recommendation 76)

That there be revised jury directions to be given that address misconceptions about sexual violence. (Recommendation 77)

That the Evidence Act be amended to allow for the admission of expert evidence about the nature and effects of domestic and family violence and sexual violence. (Recommendation 79)

That the Department of Justice establish an expert evidence panel for sexual offence proceedings that can be used by the Prosecution, Defence and the Court. (Recommendation 80)

Remove the restriction on publication of the identity of an adult accused of a sexual offence before a committal hearing where it would not identify or tend to identify a victim-survivor. (Recommendation 83)

That a sustainable long term plan be developed for the expansion of adult restorative justice in Queensland for victim survivors to access. (Recommendation 90)

Repeal the offence of begging in a public place and being intoxicated in a public place. (Recommendation 101)

The Minister of Police be required to maintain a register to be regularly published about the number of adults and children held in police Watchhouses, the length of stays and compliance with minimum standards of care for people detained in police Watchhouses. (Recommendation 107)

That a police officer or a court considering bail have regard to the probable effect that a refusal of bail will have on a person’s family or dependants and to consider a person’s obligations to family responsibilities when making bail conditions. (Recommendation 110)

That the Chief Magistrate pilot a women’s list within the Court Link program operating within the Magistrates Court. (Recommendation 124)

That the Penalties & Sentences Act be amended to require the court to consider the hardship that any sentence would impose on the offender including requiring the court to consider the probable effect that any sentence would have on the person’s family or dependants and whether or not circumstances are ‘exceptional’. (Recommendation 106)

That the Queensland Government implement the recommendations of the Sentencing Advisory Council’s Community based sentencing orders, imprisonment and parole options report to support women being sentenced to community based orders rather than short periods of imprisonment. (Recommendation 127)

To provide that any person in participating in a program or a service while on remand in custody and anything said or done while participating in a program or engaging in a service cannot be used in evidence in any criminal, civil or administrative proceedings relating to the offence for which the detainee has been charged. (Recommendation 149)

That there be whole of criminal justice system oversight in strategic leadership including in relation to advising on evidence based whole of Government and whole of system solutions to reduce the rate of offending and re-offending in the rate of imprisonment. (Recommendation 179)

That the Queensland Government establish a Victims’ Commissioner. (Recommendation 181)

All of the above recommendations selected from the total of 188 recommendations will be considered in future articles.

by Terry O'Gorman

Blog 1 - Women’s Safety & Justice Taskforce Report

In July of this year the Women’s Safety & Justice Taskforce released its report dealing with Women & Girls’ experiences across the criminal justice system.

This is a first of a series of short articles which will examine the main recommendations of the Report. Any criticism of proposed changes will appear under the heading “Comment”.

The Taskforce was chaired by the Honourable Margaret McMurdo AC who was president of the Queensland Court of Appeal until March 2017. The other members of the taskforce were:-

Dr Nora Amath from the Islamic Women’s Association of Australia
Deputy Commissioner Tracy Linford APM, Queensland Police Service
Di MacLeod, Deputy Chair, Queensland Sexual Assault Network
Philip McCarthy QC, Deputy Director of Public Prosecutions (Qld)
Gillian O’Brien, Manager of WWild, a sexual violence prevention association supporting people with intellectual or learning disabilities who have experienced sexual violence
Professor Patrick O’Leary, Griffith University who has worked in the area of gendered violence as a social worker and now researcher for over 25 years
Alexis Oxley, Solicitor Legal Aid Queensland who was admitted in 2002 and has practised in family law and criminal law for 8 years
Laura Reece, Barrister since 2006 and a member of the Criminal Law & Human Rights Committee of the Queensland Bar Association
Thelma Schwartz, Principal Legal Officer, Queensland Indigenous Family Violence Legal Service
Kelly-ann Tansley who has extensive experience delivering domestic violence services in Queensland.

In the Foreword, it was noted that the Taskforce received 19 submissions from women who are offenders and 250 submissions from victim-survivors of sexual assault. The Taskforce held 79 consultations with stakeholders.

The Foreword notes that victims of sexual assault told the Taskforce that they want changes to the laws about sexual assault including the way police, prosecutors and defence lawyers treat them and the way trials are conducted.

The report makes 188 recommendations described in the Foreword as “about changing the law relating to sexual assault and improving criminal justice responses…”

In the Introduction to the Report it was noted that victim-survivors told the Taskforce that it felt to them as if the legal system starts from the position that an accusation of sexual violence is a lie and works its way backwards to discover if that accusation is true. The Introduction notes that ‘that is often a fair observation’.

The Introduction notes that victim-survivors of sexual violence experience the flipside of the presumption of innocence which will necessarily require some focus on the credibility of a person who makes an accusation of sexual violence against another person.

The Introduction notes that the Taskforce has agreed with the observation that it should not be necessary for the legal process to humiliate a victim-survivor in order to determine whether they are credible and reliable and that women and girls think courts, defence lawyers and prosecutors could do better.

This report, and its recommendations, might significantly change the way in which serious criminal allegations are investigated and litigated. It is vital the defence lawyers, and all persons who work in the criminal justice system, understand these significant recommendations.

The next in this series of short articles about the Taskforce Report will concentrate on the main recommendations for change arising out of the Taskforce’s work.

Terry O’Gorman

Robertson O’Gorman

by Terry O'Gorman

Commemoration of abolition of death penalty Queensland 1922-2022.

Closing remarks by Terry O’Gorman

On Monday, 1 August 2022 an important seminar was held in the Premier’s Hall at Parliament House to commemorate the abolition of the death penalty in Queensland in 1922. 1 August 2022 was the centenary anniversary of that historic event. Robertson O’Gorman Solicitors proudly sponsored the seminar. I was invited to present some closing remarks. These are my remarks as they concern the opening and key note address by the Hon. Michael Kirby AC CMG, a retired Justice of the High Court of Australia.

Michael Kirby, in looking at the history of the High Court upholding a number of death sentences, looked to the future in terms of addressing miscarriages of justice today even though the death penalty in Queensland has now been abolished for over a century.

Mr Kirby examined the long established law that has effectively been in existence since the Criminal Code Act 1899 (Qld) came into effect in 1899 namely, that a person convicted in a Judge and jury trial has only one opportunity to appeal to the Queensland Court of Appeal.

Mr Kirby noted that this rule had thrown up a number of cases where apparent serious miscarriages of justice were unable to be reversed by the Court of Appeal. The apparent and historical justification for the rule is the requirement that there be a finality to criminal litigation. However, times have changed and advances in medical and forensic technology can cast serious doubt on convictions. So too can other forms of evidence uncovered after a conviction.

Mr Kirby noted that Tasmania, South Australia, Victoria and Western Australia have in the last number of years abolished this rule. In those States, if an accused person can persuade a single Supreme Court Judge that evidence has emerged that is fresh and compelling a single Supreme Court Judge can then refer the matter to the Court of Appeal for a ‘second’ appeal hearing.

These States have found it necessary to introduce such a rule because the Pardon process in Australia is unwieldy and effectively requires the agreement of the Attorney-General to refer a matter back to the Court of Appeal if fresh evidence emerges.

Experience shows that in Queensland cases are very rarely referred back to the Court of Appeal by way of the Pardon process as the Attorney-General takes advice from the Director of Public Prosecutions (DPP) in deciding whether to refer a matter to the Court of Appeal and unsurprisingly, the DPP as the prosecuting body rarely, if ever, advise the Attorney-General to refer a matter back to the Court of Appeal.

With four of the eight criminal jurisdictions in Australia having changed the law to allow a person with fresh and compelling new evidence to be able to seek their case be further considered by the Court of Appeal, it is time for a similar reform to occur in Queensland.

Justice Kirby also highlighted the related importance of a Criminal Cases Review Commission being established in Australia. He pointed out that a similar body exists in the United Kingdom, Scotland, Ireland, New Zealand and Canada.

The first Criminal Cases Review Commission was set up over 20 years ago in the United Kingdom following the Birmingham 6 awful miscarriage of justice where the various accused were ‘fitted up’ by the investigating police for the terrible bombing of a Birmingham pub during the so-called Irish ‘Troubles’.

The UK Criminal Cases Review Commission has had a reasonably successful track record in referring miscarriages of justice back to the Court of Appeal via a process where an accused person can approach the Commission and if that person’s case is taken on by the Commission, in-house investigators carry out enquiries. If a sufficiently strong case is established, they then refer the matter back to the UK equivalent of Queensland’s Court of Appeal for a further appeal and review of the conviction.

A Criminal Cases Review Commission is well overdue in Australia and is needed in conjunction with the law changes in those States which now permit the ‘leave’ of a single Supreme Court Judge to refer a second Appeal/Review to the Court of Appeal.

Most accused who can mount a case that they are wrongly convicted do not have the resources to engage lawyers and experts to prepare a case for referral back to the Court of Appeal. Access to justice is a Government responsibility. A Criminal Cases Review Commission should be established in Australia mirroring national bodies such as the Australian Federal Police and the Australian Criminal Intelligence Commission.

There is also a strong argument for a Criminal Cases Review Commission to be established as a Federal body. This is because the cost of establishing a separate State based Criminal Cases Review Commission would be prohibitive and duplicitous. Furthermore, having investigators from a national body, with no ties to Queensland Police or the Queensland criminal justice system, would give the necessary ‘distance’ and impartiality that is necessary for a reinvestigation of a credible miscarriage of justice prior to referring it back to the Court of Appeal in those States that have the machinery for a second appeal.

Mr Kirby, in his address, made it clear that the lessons to be learnt from miscarriages of justice in the death penalty era are just as applicable now as they were then namely, that miscarriages of justice occur and if there is no machinery to address these miscarriages it can hardly be said that Australia has a properly functioning and fair criminal justice system.

by Terry O'Gorman

Whiskey Au Go Go Inquest - verballing allegations against police by Terry O'Gorman

Evidence given by a former Queensland Homicide Detective at this week’s Whiskey Au Go Go bombing inquest that verballing allegations against police were “what criminal lawyers did in those days” is a tired old almost 50 year refrain by senior former Queensland Police trying to rewrite history.

Former Detective Slatter who in 1973 was with the Brisbane Homicide Squad said that police would go to court with a signed confession by a suspect witnessed by a Priest and would still be accused of verballing.

In April 1977 an Inquiry into the Enforcement of Criminal Law in Queensland headed by Supreme Court Judge George Lucas listed as its most important recommendation “the mechanical recording of interrogations by police…this will eliminate or greatly reduce the protracted enquiries which take place in so many trials (on this topic)”.[1]

A large part of the Inquiry was devoted to the topic “Are changes in the law desirable to inhibit the fabrication of evidence by police officers or other persons”.[2]

The Inquiry found “…the allegations relating to the fabrication of evidence by police officers were many. We have come to the conclusion that fabrication of evidence by police officers – particularly of confessional evidence – does occur. The sad truth is that “verballing”, as it has become known, is a device that is not uncommonly employed by certain members of the police force…”[3]

Despite the mandatory tape recording of police interviews being the major recommendation of the 1977 Inquiry it did not happen for another 12 years.

Why? Because the powerful Queensland Police Union of the day opposed it.

And so the verbal flourished until part way through the Fitzgerald Inquiry after the Premier Joh Bjelke-Petersen-appointed Police Commission Terry Lewis was stood down on charges of corruption.

In 1989 my brother Frank who later retired at the rank of Assistant Commissioner quietly introduced the well overdue reform.

It is also to be noted that the Australian Law Reform Commission in a landmark report in 1975 recommended Australia wide mandatory tape recording of police interviews.

While the State Coroner has to decide whether Stuart and Finch who were later convicted of the murder of 15 people in the 1973 Whiskey bombing were verballed by police let history record that it was senior police who encouraged the ongoing practice of police verballing from 1977 onwards until 1989 by urging the then Premier Bjelke-Petersen not to introduce tape recording.

Bjelke-Petersen then said “if the Police Union don’t want it it’s not going to happen”.

The Aboriginal Legal Service where I worked between January 1976 and December 1980 introduced covert tape recording of police officers in police stations on an afterhours basis. We were successful in convincing hitherto sceptical Judges that police verballing occurred by ALS lawyers producing tape recordings of police blatantly lying about the whereabouts of Aboriginal clients who were being denied access to their lawyers prior to ‘verballed’ confessions being typed up by police. Many “verballed” confessions were excluded by Judges when confronted with the irrefutable tape recorded evidence produced by lawyers of police lying under oath about suspects confessing.

Therefore the ex-Detective Slatter’s comments that, effectively, verballing was the figment of the imagination of criminal lawyers ‘back in those days’ has to be seen for the historical absurdity it is having regard to the Queensland Police Service and the Queensland Police Union vehemently opposing Supreme Court Judge Lucas’ major recommendations during the period 1977 to 1989 that all police interrogations be tape recorded.

[1] See page iv of the Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland published 29 April 1977.

[2] Ibid Table of Contents page 1.

[3] See Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland page 14/paragraph 26.

by Terry O'Gorman

Children's Detention by Terry O'Gorman

Two Mt Isa Childrens Court cases that have been published on the Queensland Courts website recently raise serious issues about detention conditions in the Cleveland Youth Detention Centre at Townsville.

In a Judgment published on 25 January 2022 the Mt Isa Childrens Court Magistrate noted in relation to a juvenile offender whose offending was caused by a lack of attachment to positive adult role models, grief, loss and exposure to domestic violence whose parents drank too much and he had a significant cognitive impairment that the conditions at Cleveland Youth Detention Centre were described by a worker there as follows:

“Accommodation sections (often) are in night mode, this means that the young people do not leave their cells. Night mode occurs where we have significant staff shortages and cannot bring young people out for daily routine. When in night mode, young people are provided with basic and safe resources to utilise such as colouring in, find-a-word, puzzles, art and craft activities, trivia, literacy and numeracy activities…the accommodation sections are in continuous cell occupancy, that means that the young people are permitted outside of their cell on a rotational basis.

The Childrens Court Magistrate found that in a unit usually the size of 10 plus children only 4 children at a time would be allowed out of the unit.

The offender was charged with spitting at an officer at a Youth Detention Centre where the offender was aged 16 years.

The spitting occurred during a period of continuous cell occupancy and it has to be seen in the context of a 16 year old person with an intellectual disability in a confined space.

The Magistrate went on to observe “I am concerned that (this) Detention Centre is falling below the standards it ordinarily operates at and those standards must already be seen as the bare minimum of what might be acceptable in a civilised society and they are now falling short of that”

In another Childrens Court case involving Mt Isa where the decision was delivered on 3 February 2022 the same Magistrate observed in respect of that offender who was described as a moderately cognitively impaired 16 year old First Nations young man that in relation to conditions at the Cleveland Youth Detention Centre the Court had been advised that staff shortages meant that children detained there are spending 70% of their time either locked in their cells for 24 hours a day or locked in their units and only able to socialise with three others for a couple of hours at a time. Children cannot access recreation or education.

Much has been said in the media over the last couple of years about the law and order problems caused in northern cities particularly Townsville by juveniles.

The above two cases provide a rare insight into the unacceptable conditions under which children are being kept at the Townsville Cleveland Youth Detention Centre.

It is no wonder that children kept in these conditions reoffend so shortly after they are released.

by Terry O'Gorman

Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Cellebrite downloads of mobile phones are front and centre of criminal prosecutions in Queensland and throughout Australia. Even half complex criminal cases are dependent on them.

Recently the Guardian newspaper and the tech publication Gizmodo reported that Signal, the world’s most encrypted app, claimed Cellebrite software is exposed and the data can be manipulated.

Cellebrite’s main feature is an extraction device which allows law enforcement agencies to download data from seized phones.

Among the Cellebrite flaws revealed by Signal is one that allows hackers to not just access Cellebrite software but also to manipulate the data thereby making it possible to change the evidence contained in the Cellebrite download.

These recent warnings about Cellebrite vulnerabilities could have significant ramifications for the widespread law enforcement practice of using Cellebrite downloads as evidence in criminal cases.

If it is possible to break into Cellebrite software and alter the data police are collecting how certain can it be for criminal lawyers that the Cellebrite evidence produced in Court has not been the subject of tampering and falsification of evidence?

What will be the legal ramifications for the high number of cases in Australia that hinge on Cellebrite software if its security is able to be breached?

Robertson O’Gorman has long adopted a rigorous and sceptical attitude to technical and scientific evidence in Prosecution briefs in criminal cases. That sceptical attitude will be maintained in this firm’s work in light of the worrying suggestion that Cellebrite evidence can be compromised.

by Terry O'Gorman

Review into Accuracy and Reliability of Forensic Evidence Shelved

Review into Accuracy and Reliability of Forensic Evidence Shelved

A national review into the reliability of forensic evidence used in Australian Courts has recently been abandoned by the nation’s Attorneys-General despite mounting concerns that innocent people are being jailed using questionable science.

The investigation, announced in November 2019 by the Council of Attorneys-General, was recently cancelled before a team of top legal, forensic and scientific minds could conduct any significant work or develop a reform plan.

The review into the use of forensic evidence in the Australian criminal system was announced after international studies found five widely accepted forensic “sciences” (bullet, hair, footprint, bite marks and mixed sample DNA analyses) to not work or have no strong evidence proving they work.

Gary Edmond, Director of the University of New South Wales Expert Evidence in Law Program said in a recent newspaper article[1] “we are completely out of step with other comparable countries” in this area.

The exercise to push through a review of the use of forensic evidence in criminal investigations and the Australian Courts have been spearheaded by the then Victorian Attorney-General and by the Victorian Court of Appeal President Chris Maxwell who were outspoken in their concern about the integrity of the legal system’s dealing with forensic evidence and the potential for miscarriages of justice.

Edmond has observed that a recent series of high level independent reports in the US reveal that much evidence produced in Court lacks solid scientific foundation having not been shown to be valid and reliable[2].

Australian Governments thrive on law and order campaigns especially at election time calling for ever greater Police and Prosecution powers. These same State Government actors show zero interest in remedying miscarriages of justice especially those caused by faulty scientific evidence commonly led in criminal cases.

[1] See Sydney Morning Herald 21/05/2021 Forensics Review

[2] See Forensic Science Evidence, Wrongful Convictions and Adversarial Process by David Hamer and Gary Edmond, University of Queensland Law Journal, Vol 38, No 2 (2019)

by Terry O'Gorman

To record or not to record – is there a question?

Should the ODPP electronically record proofing conferences with prosecution witnesses? The ruling of her Honour Judge Loury QC in R v MK [2020] QDCPR 118 has thrown a spot-light on the issue. Since the High Court’s landmark judgment in McKinney v R (1991) 171 CLR 486, the utility of electronic recording has been beyond doubt. In short, electronic recording is a process by which the making of oral witness statement may be unmistakeably and reliably corroborated.

Following MK, it appears that there is every reason for the ODPP to adopt the practice, and very little reason for it not to. In MK, Judge Loury QC found that evidence of a complainant child had been irremediably corrupted in the course of a Crown proofing conference. Central evidence of the child was excluded. The child’s pre-recording had to be adjourned. The child was re-interviewed. The Crown ultimately discontinued charges. The child in MK was vulnerable. However, vulnerability to suggestion, pressure (intended or unintended) and/or gratuitous concurrence is a trait not confined to child witnesses.

The Crown Prosecutor in MK made no notes of the proofing conference. He had an imperfect recall of pivotal aspects of the events. The conference was not electronically recorded. The only record was a contemporaneous note prepared by ‘an employee’ of the ODPP. Examination of the note, which is appended to the judgement, reveals 1½ pages of neat, type-written dot points. Many practitioners in crime might express a view that the proofing note in MK is of a significantly higher quality than many records of Crown proofing conferences disclosed in indictable prosecutions.

At [55], Her Honour Loury QC DCJ said:-

“The only record of the conference is the anonymised conference note which is attached to this judgement. It is apparent from the evidence of the Crown Prosecutor before me that he considered Tom was at times, confused. He did not always appear to understand the questions asked and sometimes answered with gestures such as a thumbs-up gesture. Because the process wasn’t recorded it is unknown when and about what he may have been confused.” (Emphasis added).

And, at [57]:-

“The circumstances surrounding the significant change in the evidence of Tom is impossible to properly assess because the conference was not recorded and because the Crown Prosecutor has no real recollection about Tom’s confusion…Accordingly in my view it would be inexpedient in the interest of justice for the evidence contained in the complainant’s two interviews with police to be admitted. I exercise my discretion to exclude the interviews of Tom dated 11 July 2019 and 30 September 2020”. (Emphasis added).

The issue of whether proofing conferences should be electronically recorded is separate and distinct from questions of disclosure. Proofing conferences are a juncture in criminal proceedings at which the evidence of key prosecution witnesses can materially change. The existence of an independent, objective record of exactly what was said and done is a desirable safeguard in the event independent scrutiny of a proofing conference is required. And, modern technology makes electronic recording and storage simple and inexpensive.

by Terry O'Gorman

EXTRA TEN YEARS

The Queensland Government’s announcement on Wednesday, 16 June 2021 that child killers and people who commit multiple murders will be blocked from applying for parole for up to a further 10 more years after their current parole eligibility date is an extraordinary proposal. It represents a significant interference with the due process and procedural fairness principles of Queensland’s criminal justice system.

The catalyst for this change appears to be Barry Watts who has served 34 years for the appalling, utterly disgusting and despicable rape and murder of 12 year old Sian Kingi at Noosa in 1987. While it is totally understandable that the family and community of Sian Kingi would advocate for such a reform, it is a dangerous precedent to allow such high profile cases to direct significant changes to the criminal justice system in this State.

Minister Ryan’s proposal will mean that Watts and many others can be subject to rolling and consecutive periods of 10 years additional imprisonment. It is disturbing that such a radical reform is being proposed without any consultation with legal stakeholders and those working within the criminal justice system.

To give this power to a public official who heads a Board which sits in secret is totally at odds with the criminal justice system which is supposed to imprison people on the basis of an open, transparent and accountable court system. In making these observations no aspersions are cast against the current President of the Parole Board Mr Michael Byrne QC. He is a well-regarded lawyer. It is the proposed process, not the incumbent of the Parole Board Presidency, that is to be criticised.

The proposed changes will give the President of the Parole Board the power to refuse parole for multiple and apparently endless rolling periods of 10 years after a person’s parole eligibility date falls due. For many cases, this will constitute retrospective criminal punishment which is contrary to the Human Rights Act 2019 (Qld). The government needs to demonstrate why such a breach of fundamental human rights is justified and that there are no other viable workable alternatives.

Terry O’Gorman

by Terry O'Gorman

Review of Queensland’s laws relating to civil surveillance

The Queensland Law Reform Commission currently has a Reference titled “Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies”. A Consultation Paper has been produced in that regard.

The Consultation questions are as follows:-

What consideration should apply to surveillance that is conducted in a public place?
Should there be a prohibition on the use of surveillance for the purpose of overhearing, recording or listening to a conversation and determining the geographical location of a person, vehicle or object?
In what circumstances should a person be permitted to use a surveillance device with consent?
Should there be a general provision permitting the communication or publication of information obtained through the lawful use of a surveillance device?
How should the admissibility of evidence in Court proceedings of information obtained by the unlawful use of a surveillance device be dealt with?
Should there be a right to bring civil proceedings in respect of a contravention of the prohibited use of a surveillance device or the prohibited communication or publication of information obtained through the use of a surveillance device?
Should there be an independent regulator in respect of enforcement powers and, if so, what should that entity be?

The Consultation Paper notes that in Queensland the use of surveillance devices for civil surveillance is not comprehensively regulated and that the principal Act in that regard is the Invasion of Privacy Act 1971 which regulates only the use of listening devices. It is noted that in most other Australian jurisdictions, surveillance devices legislation regulates the use of listening devices, optical surveillance devices, tracking devices and data surveillance devices.

The Queensland Drones Strategy

In June 2018 the Queensland Government released the Queensland Drones Strategy which was designed to “leverage the State’s innovation success to take advantage of new and emerging opportunities in the drones industry”. While noting the potential of drone technology to enhance people’s lives and support communities, the Queensland Drones Strategy also had regard to concern about the adequacy of Queensland legislation to protect the privacy of individuals with the emergence of drones. The privacy aspect of drones are therefore within the current QLRC Reference.

While the questions posed in the Consultation Paper specify the particular topics that are being examined by the QLRC, the actual Terms of Reference directed by the Attorney‑General to the Commission in July 2018 are to recommend whether Queensland should consider legislation to appropriately protect the privacy of individuals in the context of civil surveillance technology.

Unfortunately the Terms of Reference exclude from the review Queensland’s existing law regulating the use of surveillance devices for State law enforcement purposes where the Police Powers and Responsibilities Act regulate the use of surveillance devices by the Police and there is similar regulation by the Crime and Corruption Act. The QPS and CCC are outside the scope of the Commission Review.

The issue of whether there should be a legislative framework to regulate the surveillance of workers by employers using surveillance devices is the subject of a separate Term of Reference to the Commission.

The Consultation Paper notes that there have been a number of recent Law Reform Reviews and other Inquiries which have considered surveillance regulation in Australia. These include the New South Wales Law Reform Commission Report on surveillance in May 2005, the Victorian Law Reform Commission Report on surveillance in public places in June 2010 and the Australian Law Reform Commission Report in 2014 dealing with serious invasions of privacy in the digital era.

The Commission, while looking at more obvious forms of surveillance such as audio and visual surveillance, is also looking at data surveillance, tracking or location surveillance and biometric surveillance.

Data surveillance refers to the systematic use of personal data systems and the investigation or monitoring of the actions or communications of one or more persons and it may include surveillance of a person’s electronic records including those relating to credit cards or loyalty cards, email communications or computer usage and internet activities using tools such as cookies, keystroke monitoring or spyware.

Tracking or location surveillance relates to the observation or recording of a target’s location. Location data may capture the location of a person or object at a point in time or monitor a person’s movements in real time. It may also involve predictive tracking or retrospective tracking based on the data trail of a person’s movements. Examples of location and tracking devices include global positioning system (GPS) and satellite technology tracking, radio frequency identification (RFID) and automatic number plate recognition (ANPR).

Biometric surveillance refers to the collection or recording of biological samples and physical or behavioural characteristics, usually for the purposes of identifying an individual. This may include fingerprints, cheek swabs, iris scans and blood or urine samples as well as face or voice recognition or gait technology.

The Commission is also considering another emerging technology known as ‘smart CCTV’ which combines CCTV cameras with facial recognition software and artificial intelligence (including predictive systems to identify different behaviours). Facial recognition software can automatically analyse video, pick a face from a crowd and identify the individual by comparison with a database of known faces. The person can then be tracked from camera to camera across wide geographical areas without any human intervention. Automated cameras can also be programmed to identify ‘suspicious behaviour’ or ‘threats’, for example an individual entering a restricted access zone or unattended luggage at an airport.

by Terry O'Gorman

QUEENSLAND PRISONS

In December 2018, the Crime and Corruption Commission released its report named Taskforce Flaxton looking at corruption risks within Queensland prisons.

The summary and recommendations of that report are instructive.

They note that in 2017 Queensland Corrective Services was established as a standalone agency where previously it had been part of the Queensland Department of Justice and Attorney-General.

There are 14 prisons in Queensland with 2 being managed under private contracts namely Arthur Gorrie Correctional Centre and Southern Queensland Correctional Centre at Gatton.

The CCC found that prison overcrowding is negatively affecting the way prisons operate and the CCC said that alleviating prison overcrowding is essential to reducing corruption risk in Queensland prisons.

The CCC report also noted the necessity for an enhanced independent inspection function. In that regard, the Sofronoff review into Queensland prisons recommended in 2016 that there be an Independent Inspectorate of prisons in Queensland and it is expected that Inspectorate should be modelled on the United Kingdom system which has operated for quite a long time.

Queensland could also learn in a practical sense from the operation of the Western Australian model of an Independent Inspectorate, the essence of which is without notice, ‘spot’ visits be made by the Independent Inspectorates to prisons not only to address the corruption risks but also to ensure that facilities meet minimum standards. It is something of a worry that despite the fact that the Sofronoff review recommended that the establishment of an independent inspectorate, the CCC in its Operation Flaxton report published in December 2018 made the following critical comments:-

“The Government supported these recommendations (especially the establishment of an Independent Inspectorate to report to Parliament and not to the Department arising from the Sofronoff report). In its submission, QCS indicated that it is working with relevant agencies to commence the initial work on the recommended Inspectorate and associated legislative requirements however little observable progress has been made.”[1]

It is worrying that as of December 2018, 2 years after the recommendation for an Independent Inspectorate, QCS is only at the stage of commencing initial work on the recommendation.

It is noteworthy that the CCC has been critical of QCS observing that as late as December 2018 little observable process has been made in respect of this proposal.

The current Inspectorate model in Queensland prisons is inadequate and reports only to the Department and none of its reports are made public.

In the UK where the Independent Inspectorate model has worked for decades, there are regular reports published critical of health and accommodation standards falling well below minimum agreed international requirements for jails.

It is time that the Queensland Corrective Services gets its act together and starts implementing this important recommendation.

[1] See Operation Flaxton report page 50.

by Terry O'Gorman

Media Release – Terry O’Gorman, President of ACCL

Home Affairs Minister Peter Dutton is again engaging in overblown rhetoric in calling for an Australia wide Public Register to track child sex offenders.

Australian Council for Civil Liberties President Terry O’Gorman said that in claiming the National Register will allow the public to go online to check up on people in contact with their children or in the community, Mr Dutton appears to be unaware of the current array of schemes that exist that result in close supervision of people convicted of child sex offences.

“Around the country there are ever widening Blue Card Schemes which prevent people who have not even been convicted of child sex offences but have been convicted of other criminal offences from working with children, even indirectly”, Mr O’Gorman said.

Mr O’Gorman said that similarly, people convicted of child sex offences committed 30 or 40 years ago are forced onto State Reporting Registers thereby being prevented from having any contact with children.

“These Registers require people who come in contact with children, even accidentally, to report their contact to a supervising Police Officer who has the power to haul the person in for questioning”, Mr O’Gorman said.

Mr O’Gorman said that as well, Dangerous Prisoner legislation in all the States and Territories regularly results in an ever widening pool of prisoners being subject to Attorney‑General Applications in the Supreme Court to either keep a prisoner in jail beyond their full time release date or be released subject to an often very long list of restrictive conditions, often numbering in the twenties or thirties.

Mr O’Gorman further said that Mr Dutton is engaging in the same sort of sleight‑of‑hand tactic as revealed in the recent Prakash citizenship stripping debacle when he claims the National Register will allow the public to go online to check up on people in contact with their children or to check where such people are in the community.

“Blue Card and reporting schemes adequately deal with offenders being in contact with children”, Mr O’Gorman said.

“But allowing an online Register to be searched to ascertain who ‘in the community’ has a child sex offence no matter whether it is 40 years old or committed within a family setting will promote vigilantism and prevent rehabilitation and reintegration of a child sex offender into the community”, Mr O’Gorman said.

“As demonstrated by his overreach and incompetence in the Prakash scenario, Mr Dutton in pushing for a National Register of sex offenders is promoting a remedy for a non‑existent problem”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

Media Release – Terry O’Gorman, Vice-President of QCCL

A threat by Queensland Police Union President Ian Leavers that pill testers “will be charged too” if a sanctioned pill testing site is established in Queensland was today slammed by the Civil Liberties Council.

Civil Liberties Council Vice-President Terry O’Gorman said that pill testing rightly is on the public agenda about drug harm minimisation after a serious spike in the number of young people who have died at music festivals on Australia’s east coast in the last number of months.

“However, it is the Police Minister in conjunction with the Police Commissioner who sets policy in this contentious area, not the head of the Queensland Police Union”, Mr O’Gorman said.

Mr O’Gorman said that Mr Leavers appears to be engaging in something of a veiled threat that his members will charge pill testers if a sanctioned pill testing site currently under consideration by the Palaszczuk Government “okays” music festival pill testing and then someone dies.

Mr Leavers needs to recognise that pill testers who have operated at interstate music festivals such as Groovin the Moo Music Festival in Canberra last year do not ‘give the okay’ to any pill presented for testing.

“The legal document signed by those seeking pill testing and the advertised policy of the pill testers is to advise what the make-up of the pill is and to urge festivalgoers not to actually ingest a pill that has been tested”, Mr O’Gorman said.

Mr O’Gorman said that there have been instances where festivalgoers have ‘binned’ pills after testing and this shows that testing has some practical ‘on the ground’ value.

“While Mr Leavers is entitled to express his opinion on pill testing, it is the Minister and the Police Commissioner who can make a policy decision to allow music festival pill testing as Police Ministers and Commissioners interstate have done”, Mr O’Gorman said.

Mr Leavers’ apparent threat that his members will charge pill testers, especially if someone dies after pill testing, should be immediately dealt with and slapped down by both the Police Minister and the Police Commissioner.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

Letter to The Honourable Mark Ryan MP - Terry O’Gorman, Vice-President of QCCL

Dear Minister

RE: SEXUAL OFFENDER REHABILITATION PROGRAMMES

I refer to the judgment of Queensland Supreme Court Justice Applegarth in Queensland Attorney‑General v FJA [2018] QCS291 delivered 6 December 2018 and appearing on the Queensland Supreme Court website by way of publication today.

I draw your attention to the highly critical comments made by Justice Applegarth in respect of what this Council contends is a fundamental failure of the Dangerous Prisoner Jail Treatment & Rehabilitation Programme:

At paragraph [3]: Unfortunately, and despite the fact that the Respondent (prisoner) has been in custody since June 2017 (when his parole was suspended), he has not been approached to undertake a Sexual Offender Treatment Program.
At paragraph [4]: I remarked at the hearing on 26 November 2018 that it was completely unsatisfactory that the Respondent (prisoner) had not been offered a place on the HISOP (a rehabilitation program for serious sexual offenders) long ago, and that it was simply not acceptable for this Court to order his continuing detention so as to undergo treatment …
At paragraph [119]: It is unfortunate, to say the least, that the Respondent was not offered and did not undertake sex offender programs in the second half of 2017 and throughout 2018. If he had completed them satisfactorily, he might have been paroled in 2018 or subject to a supervision order in late 2018. Instead he must be detained in custody for treatment he should have received during his term of imprisonment.
At paragraph [122]: If the system had offered the Respondent a much needed HISOP place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed the Respondent and the community[1] in this way, regrettably he must be detained in custody for treatment.

I observe that the underlining in the above extracts is mine.

It is to be observed that criticisms of the type aboveoutlined above are quite unusual coming from a Supreme Court Judge and accordingly deserve to be taken seriously and acted upon.

As a criminal defence lawyer I observe that the problem as exemplified by FJA is certainly not restricted to that case and, indeed, is widespread and close to being systemic.

I have had a number of cases over the last five years where I have written to Sentence Management at Correctional Centre level and thereafter to the Department of Corrective Services Head Office Level endeavouring to ascertain when a client is to be put on a programme. It is frequently the case that numerous letters have to be written. Frequently the letters are not replied to and require constant follow up and when a reply is received it is often meaningless particularly as to information being sought as to when a particular client is going to be put on the relevant programmes especially MISOP and HISOP.

In making these observations I am not in any way being critical of individual sentence management staff particularly those I correspond with at Head Office level as I find them polite.

In the absence of other explanations it would appear that the problem in relation to putting sexual offenders on relevant rehabilitation programmes is inadequate resources not incompetent staff.

It is respectfully suggested that a review be conducted of the entire operation of rehabilitation programmes particularly for sexual offenders in light of Justice Applegarth’s trenchant criticisms. It is respectfully suggested that such a review should concentrate on the following issues:

Whether the resources for sentence management programmes generally within Queensland prisons but particularly in respect of sexual offenders are adequate.
Having a programme effected which provides written advice to a prisoner within a month of their reception into prison as to what programmes they will be required to undertake and the date and length of such programmes.
As the problem as exemplified in FJA should have been obvious to senior personnel within the Department of Corrective Services without problems having to be highlighted by a Supreme Court Judgement it is respectfully submitted that the review which we contend for should be undertaken by a credible entity completely external to the Department of Corrective Services.

Could I please obtain your response to this issues raised herein by 18 December 2018.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O'GORMAN

VICE-PRESIDENT

[1] All underlined points of emphasis are my points of emphasis and the underlining does not appear in the original Judgment.

by Terry O'Gorman

Media Release – Terry O’Gorman, Vice-President of QCCL

Today’s Courier Mail report that prison staff are copping the brunt of anger over crowded jail cells has led to a call for the establishment of an independent Prisons Inspectorate to highlight ongoing problems within Queensland prisons.

Civil Liberties Council Vice-President Terry O’Gorman said that the bashing of a Woodford jail prison officer before Christmas highlights the serious problems within Queensland Prisons which only are brought out into the open when a prison guard is bashed and there is an increased threat of industrial action by the Prison Guards Union, the Together Union.

“But there are other systemic problems which never get public attention including prisoner on prisoner bashings, excessive force by guards towards prisoners and the significant inadequacies of rehabilitation programs in Queensland jails”, Mr O’Gorman said.

“In early December the QCCL highlighted harsh criticism by Supreme Court Justice Applegarth in respect of a prisoner who has been kept in jail well beyond his full time release date because he was not placed on a rehabilitation program for sexual offenders”, Mr O’Gorman said.

Mr O’Gorman said that Justice Applegarth in the case of Queensland Attorney‑General v FJA[1] said that “if the system had offered [FJA] a much needed (rehabilitation program) place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed [FJA] and the community in this way, regrettably he must be detained in custody for treatment”. (my underlining)

Mr O’Gorman said that the overcrowding issues revealed in the Courier Mail today showing Queensland prison numbers have increased by 43% in the 5 year period between 2013 and 2018 could not be solved simply by building more and more prisons.

“It cost Queensland taxpayers more than $500 million a year to house a ballooning prison population when over the last decade crime statistics show that crime generally is falling”, Mr O’Gorman said.

Mr O’Gorman said that the QCCL agrees with Together Union Secretary, Alex Scott, that the Queensland Government needs to make decisions about the long term direction of the system.

A first step is for the State Government to establish an independent Prisons Inspectorate similar to the Western Australian model.

“Unlike the current Queensland Inspectorate model which reports internally to the Corrective Services Commissioner, Peter Martin, the WA model report publicly to Parliament and is completely independent of the prison bureaucracy”, Mr O’Gorman said.

“Western Australia does not have the systemic problems in its prison system that Queensland has and this has a lot to do with unannounced prisons inspections by the independent Prisons Inspectorate”, Mr O’Gorman said.

“We cannot continue to mindlessly spend an increasing amount of taxpayers’ money on prisons”, Mr O’Gorman said.

Mr O’Gorman said that the Queensland Prisons budget is currently north of $½ billion and climbing.

“We have to get prisoner numbers down in line with the falling crime rate and push more of the ballooning prison budget towards health and education where it can be more effectively spent to benefit Queenslanders”, Mr O’Gorman said.

[1] See Judgment 11/12/2018 [2018] QSC 291

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

Media Release – Terry O’Gorman, Vice-President of QCCL

The Prime Minister’s proposal to take a religious discrimination Act to the next Federal election yet again raises the question why Australia is the only western democracy in the Westminster tradition that does not have a Bill of Rights.

ACCL President Terry O’Gorman said that the Federal Government should introduce a Charter of Rights rather than fiddling around the edges with standalone pieces of legislation to protect individual rights.

“Australia is the only country of the main western democracies not to have a national law protecting human rights across the board”, Mr O’Gorman said.

“The UK from where Australia derives its legal tradition has had a Charter of Rights for decades and the sky has not fallen in. So has Canada and New Zealand which has a similar legal structure to Australia as well as the US which has an entrenched Bill of Rights”, Mr O’Gorman said.

Mr O’Gorman said Australia has a hodge-podge of legislation particularly at Federal level providing for equality rights in the areas of race, age, disability and sex.

“Yet we have no Federal Charter of Rights (only a Charter of Rights in Victoria and the ACT and one under consideration in Queensland at a State level) protecting such fundamental rights as freedom of speech”, Mr O’Gorman said.

Mr O’Gorman said that while we have a ‘five eyes’ national security sharing of information arrangement with Canada, the UK, New Zealand and the US, and while that is clearly an important and vital arrangement to protect Australia’s national security interests, we do not have a protective national Human Rights Charter to guard against national security excesses such as exist with our ‘five eyes’ partners.

“We cooperate with the US, Canada, UK and New Zealand on national security matters, as we should, but we show no interest whatsoever in copying the human rights legislation of those countries with whom we have a national security partnership”, Mr O’Gorman said.

Mr O’Gorman said that protecting an Australian’s right to practise their religion, whatever faith they are, is fundamentally important.

“It is equally fundamentally important to protect a whole range of political rights which only a national Charter of Rights can achieve”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

Media Release – Terry O’Gorman, Vice-President of QCCL

The Civil Liberties Council today called on Corrective Services Minister Mark Ryan to immediately fix significant problems with the Dangerous Prisoner regime.

Civil Liberties Council Vice-President said that a highly critical Queensland Supreme Court Judgment by Justice Applegarth released today shed much needed light on a fundamental failure of the Dangerous Prisoner Jail Treatment and Rehabilitation Program.

In the case of Queensland Attorney-General v FJA1, Justice Applegarth made the following unusual and highly critical comments:-

At paragraph [3]: Unfortunately, and despite the fact that the Respondent (prisoner) has been in custody since June 2017 (when his parole was suspended), he has not been approached to undertake a Sexual Offender Treatment Program.
At paragraph [4]: I remarked at the hearing on 26 November 2018 that it was completely unsatisfactory that the Respondent (prisoner) had not been offered a place on the HISOP (a rehabilitation program for serious sexual offenders) long ago, and that it was simply not acceptable for this Court to order his continuing detention so as to undergo treatment …
At paragraph [119]: It is unfortunate, to say the least, that the Respondent was not offered and did not undertake sex offender programs in the second half of 2017 and throughout 2018. If he had completed them satisfactorily, he might have been paroled in 2018 or subject to a supervision order in late 2018. Instead he must be detained in custody for treatment he should have received during his term of imprisonment.
 At paragraph [122]: If the system had offered the Respondent a much needed HISOP place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed the Respondent and the community2 in this way, regrettably he must be detained in custody for treatment.

Mr O’Gorman said that Justice Applegarth’s Judgment was delivered on 6 December 2018 but has only been published today.

“Criticism such as the system (has) failed the Respondent (prisoner) and the community are strong words coming from a Supreme Court Judge and cannot be ignored by the Corrective Services Minister”, Mr O’Gorman said.

“The problems caused by Corrective Services’ failure to devote sufficient money to prisoner rehabilitation programs for sexual offenders are not restricted to this case”, Mr O’Gorman said.

“As a criminal defence lawyer, I can say the problem is widespread. Sexual offenders liable to come under the Dangerous Prisoner regime frequently are not offered rehabilitation programs until close to their full time sentence often causing them to be kept in prison long beyond their proper release date”, Mr O’Gorman said.

Mr O’Gorman said that with ballooning prisoner numbers, Corrective Services’ failure to devote proper resources to rehabilitation programs, especially for sexual offenders, results in miscarriages of justice to prisoners being kept in jail beyond their Court ordered release date and is a problem for community safety as well.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

MEDIA RELEASE TERRY O'GORMAN VICE-PRESIDENT QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

Former Premier Campbell Newman’s comment that ex Chief Justice Carmody would have handed down a heavier sentence for the killing of Mason Jett Lee than current Chief Justice Holmes starkly demonstrates a worrying trend among law and order politicians that some Judges are ‘our Judges’ and the rest are out of touch.

Civil Liberties Council Vice President said that Mr Newman’s comments showed his total ignorance of the law and yet again demonstrates his fundamental unsoundness of the appointment of now Supreme Court Justice Carmody as Queensland’s Chief Justice.

"And some in the media are just as bad in barracking for a particular outcome in a publicly notorious case and if that is achieved the Judge is ‘wise and learned’ and if it isn’t, the Judge is useless and out of touch with community standards", Mr O’Gorman said.

Mr O’Gorman said that a reading of the Chief Justice’s sentencing comments unsurprisingly shows that she sentenced O’Sullivan on the basis of a number of Queensland Supreme Court and Court of Appeal precedents which were binding upon her in respect of sentencing laws passed by Parliament.

"It is the job of Parliament to reflect community standards, whatever that vague phrase may mean", Mr O’Gorman said.

"It is for Judges to apply the law as passed by Parliament not on a whim or by a Judge going out on a frolic of his or her own but according to precedents which by law bind a Sentencing Judge", Mr O’Gorman said.

Mr O’Gorman said that the law and order politicking is increasingly politicising the Queensland judiciary in the eyes of the public.

"Queenslanders need to think twice about letting law and order politicians and their media allies take them increasingly down the US judicial road where politicians positively ‘own’ their judicial appointments and tell them even before they are appointed how they should decide future cases", Mr O’Gorman said.

"Witness the current absurd sideshow currently playing out in the US Senate in respect of President Trump’s latest proposed pick for the US Supreme Court", Mr O’Gorman said.

Mr O’Gorman said that not so long ago both the LNP and Labor stuck to the bipartisan convention of not attacking Judges because Judges are not allowed to defend themselves.

"But in recent years, particularly under Mr Newman’s Premiership, and since, the LNP has broken away from this convention and in an incessant bid to gain law and order votes regularly attack Judges".

"If personal attacks on Judges sometimes bordering on personal abuse does not stop, less and less highly qualified lawyers will put their hands up for judicial appointment and the calibre of Judges will fall, much to Queensland’s detriment", Mr O’Gorman said.

Mr O’Gorman said that Mr Newman seems to be suggesting that if ‘his Judge’ (Justice Carmody) had heard the O’Sullivan case he would have thrown judicial precedents which clearly bound Chief Justice Holmes to the wind and sentenced O’Sullivan to a sentence demanded by law and order politicians and some journalists.

"Frankly, that is an insult to Justice Carmody’s judicial integrity which requires him as well as Chief Justice Holmes to apply the law in accordance with case precedent and not heed those who yell the loudest", Mr O’Gorman said.

Mr O’Gorman said "Chief Justice Holmes’ judgement is careful and reasoned. If the Court of Appeal disagrees with her sentence, so be it. That is what the Court of Appeal is there for".

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

While the Attorney‑General is deciding whether to appeal Monday’s Supreme Court judgment that sex offender Robert Fardon can be released into the community unsupervised next month, two important issues need to be addressed in the meantime.

Civil Liberties Council Vice-President said that the first relates calls for Mr Fardon’s whereabouts to be made public. These calls have been made by child safety advocates and the Morcombes. The second is what actual financial assistance will be given to Mr Fardon to live in the community once released.

Mr O’Gorman said that if Mr Fardon’s whereabouts on release are made public, there will be a repeat of the Dennis Ferguson vigilante fiasco when Ferguson was released from jail and was then hounded from one town and one address to another.

“At the time in 2005, then Premier Beattie said the media was to blame for inflaming a vigilante attitude wherever Ferguson appeared”, Mr O’Gorman said.

“In light of the media hype over the last two days surrounding the imminent release of Fardon, the Attorney‑General and the Corrective Services Minister must not give in to demands that if released next month Fardon’s address should be made public”, Mr O’Gorman said.

Mr O’Gorman also called on the Corrective Services Minister, Mark Ryan, to provide financial housing and counselling support for Fardon on his release.

“Justice Jackson’s judgment earlier this week notes that as a pensioner, Mr Fardon cannot voluntarily continue the psychological counselling which he has had in detention for a number of years”, Mr O’Gorman said.

“It is incumbent on the Corrective Services Minister to provide financial assistance to Mr Fardon on his release both for continued counselling and suitable accommodation in order to make good in practice the psychiatric opinion on which Justice Jackson acted earlier this week, namely that Fardon poses a low risk of reoffending”, Mr O’Gorman said.

Mr O’Gorman said that experience shows that a prisoner of Fardon’s background who is released into the community without ongoing support from Corrective Services increases his risk of reoffending.

Mr O’Gorman said that rather than heating vigilante calls for Fardon’s release address to be made public, the Corrective Services Minister should be immediately concentrating on providing assistance to Fardon on release so he can maintain the psychiatric opinion of being a low risk of offending.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council has called on the Premier Annastacia Palaszczuk to immediately reverse her decision to strip Katter’s Australia Party of its three parliamentary staff and two extra electorate officers following KAP Senator Fraser Anning’s contentious maiden speech in the Federal Parliament.

Civil Liberties Vice President Terry O’Gorman said the Premier’s stance was completely contrary to one of the major pillars of the Fitzgerald Inquiry report delivered to the Queensland Parliament in July 1989.

Mr O’Gorman said that Tony Fitzgerald QC looked at then Labour Opposition complaints that the Bjelke-Petersen Government throughout the 70’s and 80’s had vindictively cut Labour’s parliamentary staff as a means of stifling Labour’s criticism of Government excesses.

In the chapter of Fitzgerald’s report dealing with The Role of Parliament Fitzgerald said:

In order to be an effective forum, Parliament must have sufficient resources to enable it properly to research topics and evaluate Government proposals. Parliament can easily be prevented from properly performing its role by being denied time and resources. Any Government may use its dominance in the Parliament and its control of public resources to stifle and neuter effective criticism by the Opposition.
Non-government party members must be provided with appropriate resources and detailed information to enable them to supervise and criticise, just as Governments naturally are well equipped and staffed.
Without information about Government activities and research staff to properly assess it, the opposition party or parties have no basis on which to review or criticise the activities. (Emphasis added)[1]

“For the Premier to cut KAP’s State Parliament resources because a Federal KAP Senator in the Federal Parliament made an appalling maiden speech referencing the ‘final solution’ in his criticismof Muslim immigration is illogical and fails to heed the lessons of the Fitzgerald Inquiry.” Mr O’Gorman said.

Mr O’Gorman said that the Premier was not a Member of Parliament at the time of the delivery of the landmark Fitzgerald Report and perhaps is unaware of the history of the Bjelke-Petersen Government preventing the then Labour Opposition from doing its job by stripping it of Parliamentary resources.

“But there must be older members of the Labour Party organisational wing and Branches who remember that era who should speak out against the Premier’s fundamentally wrong and anti- democratic measure in stripping KAP of necessarily Parliamentary resources” Mr O’Gorman said.

Mr O’Gorman said that the Premier’s own justification for the move is inherently contradictory while supposedly supporting free speech and then punishing State KAP for the actions of its Federal body in exercising free speech.

The fact that the Premier has stripped State KAP of Parliamentary resources after pressure from the LNP with Deputy Opposition Leader Tim Mander saying the LNP had ‘shamed’ the Government into taking this action suggests petty politics and a desire to diminish KAPs public profile is behind the move, Mr O’Gorman said.

While the Civil Liberties Council was ‘awfully appalled’ by Senator Anning’s speech and equally critical of Federal KAP Leader Bob Katter’s support for Senator Anning, the protection of free speech means having to cop the drivel in Anning’s maiden speech.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

[1] See Report of a Commission of Inquiry (Fitzgerald Report) 3 July 1989 at page 123 – 124.

by Terry O'Gorman

Criticism of Judges

Ex High Court of Australia Judge Dyson (Dyson Heydon) in a speech in London in February 2018 examined the issue of contempt of Court in the context of political criticism of Judges[1]

Mr Heydon concentrated his speech on the approach of the Victorian Court of Appeal in dealing with criticism of that Court when it was hearing a terrorist sentence appeal in June 2016

Three Federal Ministers criticised the Court of Appeal during legal argument on the sentence appeal calling them hard-left activist Judges, ideological experiments and Judges divorced from reality

Mr Heydon argued that those who attacked the Minister’s comments “were either leading members of the party opposing the Ministers’ party or professional organisations of lawyers, including the Judges’ Trade Union, the Judicial Conference of Australia. This reaction tends to weaken the idea that Judges are not adequately defended and hence should be immune from criticism”. (See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

The reference to the Judicial Conference of Australia as being the Judge’s Trade Union says something about Mr Heydon’s personal political views.

Mr Heydon mounted an interesting argument to the effect that the Court of Appeal made findings of contempt against the Ministers without a formal hearing being conducted as to whether the Minister’s comments were in fact contempt at law.

Mr Heydon raised the question of why can’t politicians criticise Judges.

Mr Heydon makes some interesting observations about Australian Judges. He said:

“There are many admirable Australian Judges, with respect. But Australian Courts have several faults. Some Judges lack the capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor. The whole system is rotten with excessive delay, some of which, but certainly not all of which, Judges are responsible for. It is in the public interest for these failings, whether they are widespread or not, to be exposed with a view to their eradication.”

Mr Heydon also observed that it is one thing for Courts to dislike a stream of criticism from the media and from politicians – well informed or not, weighty or not. It is another thing to seek to dam this stream by threatening or actually initiating contempt proceedings.

Mr Heydon cited with approval the former British Prime Minister David Cameron who told the House of Commons on 18 April 2012 that there are “occasions where Judges make critical remarks about politicians and there are times when politicians make critical remarks about Judges. To me, this is part of life in a modern democracy. We should try to keep these things as far as possible out of the Courts”.

In concluding his speech Mr Heydon asks a rhetorical questions: “where Judges seek to preserve judicial independence in response to political criticism by threatening use of the contempt power, do they actually strengthen the hands of those who oppose judicial independence.” [2]

Mr Heydon’s UK speech is an interesting perspective on the role of criticism of Judges in Australia. What is notably absent from his speech, though, is the problem caused by the convention when Judges are attacked they are not permitted to publicly respond to the attack.

Perhaps it is time for Heads of Court in every jurisdiction in Australia, including Queensland, to become much more proactive in responding to criticism of Judges in the media.

The fact that Heads of Jurisdiction rarely defend attacks on individual judicial officers has the effect of lowering respect for the judiciary simply because there is no judicial response to criticism of an individual Judge or Magistrate, no matter how unfair or unjustified such criticisms may be.

By Terry O’Gorman

23 April 2018

[1] See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

[2] Page 17

by Terry O'Gorman

Media's behaviour in the vicinity of Courts

The case of Sydney property developer Salim Mehajer who has been charged with assault of a television journalist highlights the necessity for regulation of media behaviour, particularly television crews, in the vicinity of Courts generally including Queensland Courts.

Mehajer has been charged with assault occasioning actual bodily harm over an incident that occurred in April 2017 when he fronted a central city police station in relation to an allegation of assaulting a taxi driver.

On leaving the police station television footage shows Mehajer getting into a taxi which was surrounded by a group of reporters. As a result of this the taxi driver refused to take Mehajer as a passenger and a journalist then started asking questions of Mehajer through the open taxi window.

Mehajer was ordered out of the taxi by a police officer who had been monitoring the situation after the taxi driver apparently declined to drive him further because of the media scrum that surrounded the taxi.

Mehajer then called a friend to pick him up and on entering the friend’s car journalists then fired various questions at Mehajer namely whether he had “hit rock bottom” and whether he had “no mates” or “no chauffeur to pick you up”.

Mehajer responded to media questions while sitting in his friend’s car saying “will you have some respect. I am on the phone”.

Mehajer then closed the door of his friend’s car with considerable force and the journalist’s arm was caught in the process.

While the Sydney Magistrate has to hand down a decision on the charge, what happened to Mehajer is repeated at Courts around the country on a weekly and often more frequent basis.

Last year a defendant left the Brisbane Supreme Court having been sentenced on a quite serious charge and was pursued up the street. On available reports he maintained a stony face and refused to respond to a number of provocative media questions. Having been pursued more than 100 metres up the road from the Court a television journalist then fell over as he was walking backwards intrusively filming the defendant. At that stage the defendant laughed and the picture of his laughter was then posted in the media as a flippant reaction to his Court sentencing prompting the usual suspects to call for an appeal against his sentence because of his apparent flippancy.

Aggressive confrontation and highly intrusive questioning of defendants as they leave criminal Courts has become a real problem and if the media do not start regulating themselves there is a case for government regulation of media in the vicinity of Courts.

While the media should be free to report Court proceedings aggressive and provocative and often downright insulting questions that are asked by media representatives of defendants as they walk up the street from Court are becoming increasingly prevalent.

If the media cannot regulate itself in its increasingly unacceptable behaviour in the vicinity of Courts then the State must step in to control the situation.

by Terry O'Gorman

NO POLICE INQUIRY ‘AT THIS STAGE’

The Queensland Premier has responded to calls for an Inquiry into the Rick Flori affair by asserting that ‘there are no plans for an Inquiry at this stage’ (emphasis added).

Sooner or later, the fundamental flaws highlighted by the Flori affair are going to have to be independently examined.

The Flori affair is the best example in a long time as to what is wrong with the police discipline process in Queensland.

Former Sergeant Rick Flori was criminally charged for releasing a video of a police bashing in the carpark of the Surfers Paradise police station in 2012 while the perpetrators of the bashing escaped criminal charges.

In 2012 chef Noa Begic was charged with the most minor of police charges, namely public nuisance.

He was taken to the Surfers Paradise police station, and a video camera in the police station carpark showed him being mercilessly bashed while his hands were cuffed behind his back.

In full view of their own CCTV camera, one of the police then nonchalantly washed away the bloodied floor with a bucket of water. That police officer in Flori’s criminal trial before a Southport District Court Judge and Jury this week said he washed the blood away because it was ‘a biohazard’.

After this incident, there then followed a failure at every level of the police accountability process set up by Tony Fitzgerald QC in his landmark 1989 Police and Corruption Inquiry Report.

The supervisors of the relevant police should have immediately acted upon the scandal.

Flori then leaked the video to the media asserting that there was inaction on the matter.

According to evidence in the District Court trial, Noa Begic made a criminal complaint about the bashing but then withdrew it after he received a large financial settlement from the Queensland Police Service believed to be in the hundreds of thousands.

That civil settlement is Court sealed, and Begic is prohibited from publicly discussing the settlement.

The issue of police settlement of civil cases is a long festering problem in Queensland and calls, particularly by the Civil Liberties Council, for redacted details of each Queensland police civil settlement case to be included in the Queensland Police Service Annual Report has fallen on deaf ears over a period of years.

The Police Commissioner’s explanation for not launching criminal charges against the offending police who appear to have absolutely no defence to a charge of assault occasioning bodily harm is on the laughable and absurd basis that no charge could be laid because Begic declined to make a complaint.

It appears that Begic made a complaint but then withdrew it contemporaneously with receiving a large secret financial payout.

Amazingly the then Crime and Misconduct Commission approved and signed off on the QPS decision, thereby completely abrogating its role of properly monitoring the investigation of complaints against police.

If the Commissioner’s ‘explanation’ for not laying charges was applied across the board, most domestic violence charges would never be prosecuted nor would murders.

Every day of the week in Queensland domestic violence charges are prosecuted by police even where the victim (usually a woman) does not wish to make a complaint.

To state the obvious, murders are investigated and prosecuted where the ‘complainant’ is clearly not in the position to make a complaint.

It is almost 30 years since the Fitzgerald police reform process blueprint was laid out, and while there has been tinkering at the edges with the Fitzgerald blueprint in that time, there has been no Independent Inquiry into how the police discipline process is working, particularly as to how well the now CCC performs its role of monitoring the ongoing scenario of police investigating police.

It is all very well for the Premier to say there are ‘no plans at this stage’ for an Inquiry. The Premier should look at the history of the years leading up to the 1987-1989 Fitzgerald Inquiry. There were numerous Flori type incidents and fundamental failures of the police discipline process. Those incidents reached critical mass which resulted in the Fitzgerald Inquiry and the fundamental reforms which followed.

30 years after the Fitzgerald Inquiry, a separate Inquiry should be conducted specifically into the Flori affair but also in relation to ongoing flaws with the police discipline process. The Premier can say there are ‘no plans at this stage’ but a stage is going to be reached where the irresistible cumulative force of arguments for an Inquiry will reign supreme.

by Terry O'Gorman

Media Release - The Australian Newspaper Attacks Southport Magistrate Joan White

MEDIA RELEASE BY TERRY O'GORMAN

PRESIDENT, AUSTRALIAN COUNCIL FOR CIVIL LIBERTIES

An attack in the Australian newspaper today on Southport Magistrate Joan White is one‑sided and part of a pattern of the Courier Mail and the Australian of targeting individual Judges and Magistrates.

ACCL President Terry O’Gorman said that the Australian's report of “outrage after Magistrate spares a thug for giving a New Zealand born thug just 12 months probation for punching a teenager unconscious during last November’s schoolies festival has a history of soft sentences”, is unbalanced and one‑sided.

“Once a reader gets beyond the sensationalist headline and photos of the sentenced man’s assault actions, deep in the article it is reported that the assault video was not even played in Court”, Mr O’Gorman said.

Mr O’Gorman said the article also totally fails to refer to the Prosecutor’s submissions on sentence with the article lamely stating that “it is not known why the Court was not shown the video”.

“It is a simple thing for the Australian to pick up the phone and talk to the Prosecutor or the defendant’s lawyer to ascertain precisely what was said by all parties in the sentence hearing, yet this basic step appears not to have been taken”, Mr O’Gorman said.

Mr O’Gorman said the description of the Magistrate having a history of soft sentencing is similarly exaggerated and misleading.

“There is a reference to a case Magistrate White was involved in 6 years ago and reference to the fact that in 2015 Magistrate White had nine appeals lodged against her with five successful and three unsuccessful”, Mr O’Gorman said.

Southport Magistrates Court is the busiest Court in Queensland. A Magistrate can preside over at least 20 sentences a day in that Court totalling 200 sentences a week, and in a 40 week year a Magistrate sitting full time in the sentencing Court can preside over 4,000 sentences.

“Nine appeals over even half that number is a low appeal rate”, Mr O’Gorman said.

As individual Magistrates and Judges are prevented from defending themselves over media targeted attacks, the Civil Liberties Council is determined to present the other side of the picture to balance unfair and sensationalist attacks on individual judicial officers.

Mr O’Gorman may be conducted during business hours on 07 3034 0000

by Terry O'Gorman

Child sex abuse inquiry’s stance on recovered memories raises fears as report release nears

Earlier in the week Terry O'Gorman participated in an article with the Weekend Australian concerning the National Royal Commission into Child Sexual Abuse. The article is set out in full below:

The Weekend Australian, 2 December 2017

In January last year the Royal Commission into Institutional Responses to Child Sexual Abuse began a wide-ranging public investigation into the Church of England Boys Society, the Anglican Church’s equivalent of the Boy Scouts. On the fifth day of those hearings, in a courtroom of the Commonwealth Law Courts building in Hobart, a 63-year-old man known only as BYA entered the witness box and made disturbing allegations about a pedophile ring in the upper reaches of the South Australian CEBS.

BYA recalled that in 1967, as a shy and religiously inclined 15-year-old, he became leader of his local CEBS group in inner-suburban Adelaide. At about that time, he said, the chief commissioner of CEBS in South Australia, Bob Brandenburg, began sexually abusing him during sleepovers at Brandenburg’s house and on expeditions to look for campsites.

Between 1967 and 1971, BYA said, four other CEBS leaders from South Australia abused or sexually accosted him, including two branch governors and a district commissioner. The five men, he said, “were operating as some sort of group and perhaps exchanged information on which boys were vulnerable or approachable for sexual contact”.

Despite this, BYA remained active in the CEBS for six years after the abuse ended, becoming an assistant district commissioner and even inviting two of his alleged abusers to his wedding in 1974. The explanation for this came later in BYA’s testimony, when he revealed he had completely forgotten the sexual abuse for more than 40 years. It was only in 2010 — 11 years after Brandenburg’s highly publicised suicide while under police investigation for child abuse — that BYA began having “flashbacks” following a car accident, and sought the help of a psychologist and psychiatrist.

“I repressed all memories of this sexual abuse for many years,” he said.

Such long-forgotten memories of sexual abuse have been treated with extreme caution in the legal arena during the past 20 years. Numerous authorities have warned that repressed memories recovered through counselling can be unreliable or even false; the Wood Royal Commission into the NSW Police Service in 1996, a Victorian Health Services Commission inquiry in 2005, the Australian Psychological Society and several appeals court judgments have urged caution when dealing with such memories. The National Health and Medical Research Council endorses the view that “in the absence of corroboration, it is not possible to unequivocally determine the validity of recovered memories”.

The current royal commission, headed by Justice Peter McClellan, has departed from this approach by accepting recovered-memory allegations without questioning them. It’s a stance that highlights a broader issue about the commission’s work that may not be widely understood: its policy was to ask “minimal” questions of the approximately 8000 people who approached it with allegations, a gentle approach that in turn was taken up by the churches and other institutions that were accused. Virtually no cross-examination took place, and McClellan’s public statements — which refer to all 8000 claimants as “survivors” — suggest the inquiry accepted their evidence without requiring corroboration.

Asked by this newspaper whether that is the case, the royal commission says it has never made a finding of abuse without evidence of a “relevant conviction” but says its terms of reference do did not require it to “resolve any issue with respect to the evidence of most individual survivors”. “But for a few witnesses,” the statement says, “the evidence of individuals has not been challenged before the royal commission.”

This issue is now causing consternation among some lawyers and trauma experts as the royal commission prepares its final report and the spotlight shifts to paying compensation and prosecuting the approximately 2000 cases that have been referred to police.

Ian Coyle, a veteran forensic psychologist who assesses abuse claims for the courts and is an adjunct professor at University of Southern Queensland, says the royal commission appears to have adopted an uncritical and unscientific approach that could potentially blow out the cost of the compensation scheme and lead to failed prosecutions.

“I understand why the royal commission took a non-critical approach to these allegations,” says Coyle. “They simply did not have the skill set to vet all those people. I have no doubt the overwhelming majority of compensation claims will be genuine, but we have 8000 potential claimants plus an unknown number of others who may come forward, applying for payments of up to $150,000 each. It will require highly skilled staff to assess those claims. And a large number of these cases are being referred to the criminal justice system, where the standard of proof required is beyond reasonable doubt. The implications are beyond profound.”

Former NSW attorney-general Greg Smith, now a barrister in private practice, says the royal commission is offering “a pretty weak excuse” for failing to vet allegations. “I have been very concerned about the lack of cross-examination by the royal commission,” says Smith, who previously worked as a prosecutor and counsel assisting the NSW Independent Commission Against Corruption.

“It’s all very well to say you are being compassionate and witnesses have been through enough, but where there is a so-called ‘target’ who is challenging the truth of the allegations there should be cross-examination, particularly with historical cases, whether it’s recovered memory or whatever.

“In cases like this there could be fabrications, there could be the promise or wish of future compensation … I very much feel sympathy for people who have been molested, but I’m concerned about the sorts of statements that are being made about people who have had no opportunity to cross-examine.”

Brisbane criminal lawyer Terry O’Gorman voices a broader concern about the royal commission’s recommendations for sweeping changes to court processes, such as restricting a defendant’s right to separate trials when facing multiple accusers. “I find it extremely worrying that the royal commission is proposing the most fundamental change in the balance between prosecution and defence in 100 years, based on the untested evidence of people whose allegations, by the commission’s own admission, were not subject to critical examination,” O’Gorman says.

Since its public hearings began in April 2013, the royal commission has been lauded for exposing systemic child sexual abuse in schools, orphanages and church organisations. Many institutions have acknowledged their failures, which included cover-ups and callous treatment of victims.

McClellan has said the commission adopted a policy of “minimal questioning” of the 8000 people who gave unsworn testimony in private sessions, to avoid re-traumatising them.

A lawyer representing the Catholic Church, Peter Gray SC, told the commission in 2015 the church groups “do not intend to question witnesses about the detail of their recollections of various events, even where, for instance, someone associated with a church party may have a different recollection of an event or conversation”.

O’Gorman points out that previous royal commissions did test the claims of witnesses, notably the 1990s inquiry by Justice James Wood that investigated allegations that NSW police had protected pedophiles. In his 1996 report, Wood specifically warned about the dangers of false and distorted claims of child abuse after he investigated reports of “satanic ritual abuse” made by adults and children undergoing counselling.

These apparently eyewitness accounts of pedophile crimes involving sacrificial child murders were so widespread that many government health bodies and sexual assault centres accepted them, and NSW Labor MP Franca Arena aired allegations that a NSW judge was a satanic axe murderer. Wood devoted two chapters to the phenomenon, concluding there was almost no supporting evidence and attributing it to the inappropriate questioning of young children, the recovered memories of adult therapy patients, the influence of media reports and the spread of conspiracy theories about pedophilia.

In a speech 11 years ago to a legal conference, McClellan himself warned that repressed memories could be false and that children were more susceptible to suggestion than adults. But the judge’s thinking on these issues appears to have shifted significantly. In September he told a psychotherapy conference some victims could forget their abuse entirely, saying he had been “somewhat startled” during private interview sessions with survivors to discover some had no memory of their abuse, even though the perpetrator had pleaded guilty.

Whether childhood sexual abuse can be blocked from consciousness, then remembered accurately years later, is a subject that has divided the psychiatric and psychology professions for decades. The satanic abuse scare in the 1980s and 90s discredited the theory, but many psychotherapists and social workers insist that children often “dissociate” when subjected to trauma, repressing events that can return decades later in the form of flashbacks. How accurate those memories are is hotly disputed, and memory researchers have shown it is surprisingly easy to contaminate people’s recollections with false information and suggestive questioning.

One royal commission witness whose recovered memories appeared to be corroborated was a former state ward from Victoria who testified that at age 50 he began remembering that he had been raped repeatedly in his youth by a staff member at a Salvation Army boys home, Bill Willemsen. After the former state ward went to police in 2005, Willemsen admitted molesting several boys and pleaded guilty, although he denied raping them.

On other occasions the commission has aired evidence of extensive crimes based on untested recovered memories. Last year a former state ward in his 60s testified in Newcastle that between the ages of 10 and 14 he was violently abused on a weekly or fortnightly basis by Anglican priest Peter Rushton, who on occasions cut his back with a knife while raping him. The witness said Rushton, who died in 2007, delivered him into the hands of other pedophiles who repeatedly raped him and other boys in a room at the St Alban’s Home for Boys, but he remembered none of this until 2010, after media reports prompted the church to acknowledge Rushton had been a child molester.

The royal commission did not question this testimony, or the evidence of BYA, the witness who recovered memories of being abused by five leaders of the South Australian CEBS. The commission’s interim report on the CEBS, released in May, details multiple instances of CEBS personnel in various states pleading guilty to child abuse offences, and describes BYA as one of the “survivors” of Brandenburg’s abuse. The report does not mention that BYA’s allegations were entirely based on repressed memories.

The royal commission insists that this is not a “finding of fact” about BYA’s evidence. “The royal commission has never made a finding of fact based on evidence of repressed memory,” it says in a statement. “The royal commission has never made a finding that a person has been abused by a named individual in the absence of a relevant conviction.”

John Agius SC, a Sydney criminal barrister who was counsel assisting the Wood royal commission, says he would be “very surprised” if the commission accepted uncorroborated repressed memory evidence as reliable, particularly if it involved allegations from decades past. Agius says a key difficulty with recovered memories is that although they can be false or unreliable, the people experiencing them “are not lying and actually believe their recollections to be true”. “It’s an area where I would be much more cautious than the royal commission appears to be,” Agius says.

Coyle is strongly critical of the royal commission for accepting such testimony without cross-examination, and for endorsing the counselling practices of organisations such as Blue Knot Foundation, whose president, Cathy Kezelman, has written a book detailing her own recovered memories of ritualistic cult abuse.

In 2015, Kezelman appeared alongside McClellan when he addressed a Sydney conference of the International Society for the Study of Trauma and Dissociation, an organisation that played a key role in spreading satanic abuse claims in the 90s. Two of the ISSTD’s past presidents, psychiatrists Colin Ross and Bennett Braun, were sued by former patients who accused them of implanting false memories of satanic abuse, and Braun was stripped of his medical licence in Illinois.

Coyle says Blue Knot — one of many organisations that received government funding to counsel alleged victims testifying to the royal commission — is largely staffed by people with little or no forensic or clinical experience in psychology or psychiatry. He says the proposed compensation scheme will need to be staffed by far more highly qualified personnel or it will be “a disaster of such mammoth proportions that it will make the vocational education scheme pale into insignificance”.

The draft bill for the proposed redress scheme makes no mention of an evidentiary standard required but says compensation will be paid if there is a “reasonable likelihood” the claimant is eligible. The total cost of redress has been projected to reach $4 billion, including ongoing counselling services for abuse survivors, although how it will be administered and who contributes are yet to be determined. The West Australian government has already indicated it is reluctant to participate in the scheme as devised at present.

Within some church organisations there also have been murmurings of dissent about the royal commission’s methods. In a speech earlier this year to the Australian Lawyers Alliance, Jesuit priest and lawyer Frank Brennan criticised the royal commission’s report on alleged abuses in a Queensland orphanage, which he said singled out the Catholic Church for its lack of compassion “while remaining silent on the moral vice of all other participants including public servants”.

He said it was not the royal commission’s job to be judging whether the church lived up to its Christian principles, adding that “the commission will need to be very careful about taking on the mantle of royal commission infallibility and lecturing to the church about its structure, theology and doctrine”.

Among criminal lawyers there is widespread concern about the low standard of evidence the commission required, and its implications for the nearly 2000 cases that have been referred to police.

Greg Walsh, a Sydney solicitor who has represented many accused sex offenders, says dubious prosecutions are already emerging from the inquiry, citing two of his clients, both elderly and ailing former religious brothers who are charged with decades-old offences. One man is comatose and in palliative care, having already been deemed mentally unfit to face trial seven years ago on separate charges; the other is 85, suffers Parkinson’s disease and dementia, and already has served a jail term for indecent assault.

Walsh says he fails to see the public good in pursuing such cases and says the royal commission’s unquestioning acceptance of people’s allegations is creating an atmosphere in which the presumption of innocence is being jettisoned. “The public is being conditioned to accept that any allegation made by any complainant must be true,” he says. “But that can’t be right.”

O’Gorman says the royal commission’s use of the term survivor to describe anyone making allegations reflects an uncritical approach to its task of assessing whether institutions responded adequately to alleged offences.

He is particularly uneasy about the inquiry’s recommendations to curtail a number of defendants’ rights such as the option for separate trials when facing multiple accusers. He questions how the royal commission can assert that there have been a number of “unwarranted acquittals” in child sexual abuse cases given that its own testing of evidence was so limited.

“One of the extremely worrying things about the royal commission’s recommendations on the justice system is that they are based not only on contested academic evidence, including a mock-trial that was criticised for its methodology, but also on the untested allegations of people the commission calls ‘survivors’, who found the court process difficult,” says O’Gorman.

The royal commission, he adds, “has effectively been insulated from criticism by virtue of the fact that just about all the institutions that appeared before it gave their lawyers riding instructions not to cross-examine or take a critical approach.”

On December 15, the commission is scheduled to hand in its final report, more than five years after Julia Gillard as prime minister announced its formation. The commission, which is estimated to have cost $500 million, has generally not responded to specific criticisms of its work.

In September several senior figures in psychology — including Richard Bryant, director of the Traumatic Stress Clinic in Sydney — warned that the commission was endorsing counselling practices and research findings that potentially could be harmful to the people it was set up to help.

McClellan has not responded to those criticisms, and the commission declined to allow anyone to be interviewed for this article, saying its approach was contained in its reports and public statements.

“Any finding made by the royal commission has followed a process whereby all relevant persons have had the opportunity to be represented and ask questions of witnesses,” the commission states. “Where witnesses made allegations against institutions in relation to their responses to complaints of child sexual abuse, these institutions have had the opportunity to be represented and challenge that evidence if they wish to do so.”

by Terry O'Gorman

Terry O'Gorman on the No Body, No Parole Laws: Warns of Potential Injustices

The Corrective Services (No Body, No Parole) Amendment Bill was passed by the Queensland Parliament last week. It provides for the refusal of parole in cases where the prisoner has not provided the location of the deceased victim’s body.

Terry O’Gorman spoke out against this bill at the Public Hearing in Queensland Parliament, warning of the potential injustices that this law could produce. In particular, he advocated for the implementation of vital safeguards such as allowing the cross-examination of a police officer who compiles the Police Commissioner’s Report, upon which the Parole Board relies, mandating legal representation and having an appropriate avenue for merits based appeals to the Court of Appeal.

“We submit that the police report that is to be prepared should be given to the prisoner and the prisoner should have a full right to cross-examine the police who have prepared the report at a parole hearing. The prisoner should have the right to place independent material before the Parole Board. The prisoner should be legally represented, which means an amendment of section 198 of the Corrective Services Act, because the Corrective Services Act currently provides that with the board’s leave a prisoner’s agent, generally not a lawyer, can appear to make representations” Mr O’Gorman said at the Committee hearing in June.

No such amendments were made to the Bill that was passed last week. This continues to raise questions about the fairness of the new laws and puts in jeopardy the rights of a prisoner.

by Terry O'Gorman

Media Release by Terry O'Gorman, President, Australian Council for Civil Liberties

The Australian Council for Civil Liberties has this morning seriously questioned fundamental accountability issues which will arise from today’s announcement of a Super Security Ministry comprising ASIO, the AFP and Immigration and Border Force.

Council President Terry O’Gorman said the fact that it follows within a matter of days on the announcement that Australian Defence Force Special Forces will for the first time in Australia’s history be used in a domestic terrorist incident raise important questions whether the balance between adequate terrorism powers and protecting civil liberties is being wrongly and badly skewed.

Mr O’Gorman said that the accountability concerns were further deepened when the history and role of the proposed Super Minister, Peter Dutton, is examined.

As Minister for Immigration and Border Control, Mr Dutton has demonstrated a secrecy mindset attacking those who criticise Australia’s off shore immigration detention centres and settling a large detention centre lawsuit which has the convenient consequence that the publicity flowing from a Court case which would have run for weeks is avoided.

“The fact that ASIO supervision will be taken from the Attorney-General’s domain for the first time since ASIO was created in 1949 shows a worrying ignorance of ASIO’s controversial history in wrongly spying on legitimate domestic political protestors and dissenters”, Mr O’Gorman said.

Mr O’Gorman said that Mr Dutton’s frequent foray into Queensland’s legal system, including calling judicial officers ‘lefties’ and other derogatory terms, shows he is the least balanced Minister in the Turnbull Government to take on the Super Ministry.

“This Super Ministry is a threat to civil liberties, is apparently opposed by a number of senior Ministers within the Federal Government, and should not go ahead”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

Meet your Queensland Law Society Senior Counsellor – Terry O’Gorman AM (1)

The Queensland Law Society (QLS) interviewed Terry O’Gorman, a QLS Senior Counsellor and the Legal Director at Robertson O’Gorman, on his experience and motivations surrounding his role as a Senior Counsellor.

Mr O’Gorman accepted the request to become a QLS Senior Counsellor because he felt it was important, particularly for younger practitioners, to be able to have access to advice from experienced lawyers.

Mr O’Gorman expressed the importance of the availability of professional and ethical guidance to young practitioners. He said he generally receives inquiries from young solicitors seeking advice on issues they haven’t encountered before, such as conflicts of interest.

Mr O’Gorman emphasised that, particularly in criminal law, it is extremely important that young lawyers seek advice to novel problems before making important decisions.

Read more about Terry’s interview here.

View Terry's profile here.

by Terry O'Gorman

Terry O'Gorman on Juries

Terry O'Gorman spoke to The Australian's Chris Merritt about the upcoming trial of Cardinal George Pell. You can read the original article here.

_______________________________________

Victoria’s legal system is built on the premise that jurors are impervious.

Cardinal George Pell would hate the association, but the question of whether he can ever receive a fair trial will turn on what happened to a notorious pedophile.

The fate of that pedophile, Father Michael Glennon, will not help the cardinal. It established that as far as the law is concerned, massive adverse publicity does not necessarily make it impossible to find an unbiased jury.

In Victoria, where Pell has been charged with historical sexual offences, “adverse publicity” barely begins to describe what has happened to this conservative Catholic cleric. Tearing him down has almost taken on the trappings of an industry.

Yet now that the justice system has become involved, the frenzy of the past few years is supposed to be set aside and forgotten, particularly by those who would sit on the jury that will decide his fate.

In the view of some, that is little more than a heroic assumption from another era.

The state’s justice system has a range of tools at its disposal that are aimed at ensuring that Pell’s trial will be fair. But in the face of the modern world, the effectiveness of those tools has been questioned.

Civil libertarian Terry O’Gorman believes a fair trial for Pell is extremely unlikely — particularly after the Royal Commission into Institutional Responses to Child Sexual Abuse.

“It comes after a parliamentary inquiry and a royal commission with intense publicity,’’ says O’Gorman, who is president of the Australian Council for Civil Liberties.

“Pell’s trial will be one of the biggest media circuses since Lindy Chamberlain.’’ Like most common law jurisdictions, Victoria’s criminal justice system is built around the belief that juries are capable of setting aside everything they may have come to know and that they will decide cases based only on what they see and hear in court. This belief is so pervasive in Victoria that the state government has chosen not to follow NSW, which has long had a system in place designed to address circumstances when people have been subjected to so much adverse publicity that the risk of a biased jury is simply too great.

That system, in which judges decide criminal trials without a jury, was preceded by a 1986 report that exploded the myth about juries.

That report, by the NSW Law Reform Commission, should send a chill down the spine of Pell and his lawyers.

It found that in some cases “it may be that publicity which is adverse to the accused person is so prolonged and widespread that it is clearly impossible to eliminate its impact upon potential jurors”.

“There will be cases in which the publicity has been so extensive that the conduct of a fair trial may only be possible if it is by judge alone.

“For these reasons, we consider that an accused person should have the right, where legitimate grounds are shown, to make an application to be tried by judge alone.” So in Victoria, the first Australian jurisdiction with a Charter of Rights, this method of protecting the fundamental right to a fair trial is simply not available.

But while this mechanism is available in NSW, it is not commonly used — even for those cases where pre-trial publicity has been intense. Former Labor politicians Eddie Obeid and Ian Macdonald, for example, were sent to prison after jury trials.

O’Gorman believes Victoria needs to confront the question of whether the extraordinary circumstances surrounding the Pell case mean the time has arrived for judge-alone trials.

John Dowd, who introduced judge-alone trials in NSW when he was state attorney-general, says the system works “very well” but imposes a very heavy responsibility on judges, particularly in high-profile cases.

Dowd, who is also a former judge of the NSW Supreme Court, believes juries, properly instructed, can work fairly. But he says one of the great problems in high-profile cases is discussions between jurors and their families.

“The juror goes home, discusses it with their spouse, and the spouse says ‘well I think …’,” Dowd says. “Jurors are subject to pressures, but of course so are judges.” In Victoria, problem jurors can be excused. They can be excused if they volunteer that they are incapable of bringing an impartial mind to bear. Judges also instruct them to decide the issues based only on the evidence.

They are also warned that it is a criminal offence to use the internet to research the case and to discuss their deliberations outside the jury room.

O’Gorman believes that is only an incremental improvement. It falls short of the intense questioning of jurors that takes place in the US when their impartiality is in doubt.

“In the States, when you have this amount of intense, highly prejudicial pre-trial publicity, you can question the jurors. It’s the trade-off that has been built in over there,” he says.

“Here, you have a media free-for-all with blokes like Pell … and in most Australian states it is a criminal offence to even inquire about a juror’s background, let alone being able to question them in the US mode,” O’Gorman says.

The courts also can impose suppression orders that limit what can be said until after the case is decided. Extensive delays before trial also can be used in the hope that this may dissipate any prejudicial effect.

The reality, however, is that potential jurors with a smartphone can sidestep suppression orders and revisit all sorts of anti-Pell material. The damage has been done.

It may be too late for Pell, but Nick Xenophon’s move for a Senate inquiry into the law of contempt has the potential to resolve an apparent inconsistency in the way the law deals with pre-trial publicity.

At the moment, the law governing contempt of court can result in convictions for prejudicing the right to a fair trial — which is what happened to Derryn Hinch in the 1980s when he was a broadcaster, not a senator, and took an interest in Glennon the pedophile priest.

Hinch made three broadcasts about the priest’s earlier convictions that were found to have prejudiced the pedophile’s right to a fair trial. Glennon then tried to use this to argue that his latest trial should be stayed.

The High Court disagreed, which means Hinch was punished for threatening Glennon’s right to a fair trial, but our highest court also believed Glennon would receive a fair trial.

But it is worth pointing out that Victoria’s Court of Criminal Appeal had ruled in favour of Glennon, only to see its concern for a fair trial given less weight by the High Court majority.

The Court of Criminal Appeal had considered the effect of the pre-trial publicity in the Glennon case to be “an extreme and exceptional or singular one in which neither the lapse of time nor directions of the trial judge obviated an unacceptable — in the sense of significant or substantial — risk that the trial was unfair by reason of illegitimate prejudice and prejudgment on the part of the jury”.

Seventeen years ago, the inconsistency did not escape the notice of the Alternative Law Journal. “In Glennon the High Court drew a legalistic distinction between its earlier finding that Hinch was responsible for a real or substantial risk of prejudicing Glennon’s trial, and its finding that Glennon was able to get a fair trial despite the extent of the contemptuous pre-trial publicity,” wrote legal academic Allan Ardill.

“On the one hand Hinch was guilty of a real and substantial risk of prejudicing Glennon’s right to a fair trial, but on the other Glennon was still able to get a trial sufficiently free of prejudice,” Ardill wrote.

O’Gorman says he does not suggest that jurors would deliberately conduct themselves in a biased manner and disregard the instructions given by a judge. But he says there have been several studies in the US into what he described as “the myth that jurors can put things out of their mind”.

“The rest of us can’t in relation to other matters. Asking a jury to do so is absurd,” O’Gorman says.

He says concern for better protection for the right to a fair trial should not depend on popular attitudes towards those facing potentially biased juries.

“I would just say to those in the media who are sympathetic to Pell’s position that there were not many people who were sympathetic to Glennon’s position,” O’Gorman says.“There has to be a change to the system.”

by Terry O'Gorman

Media Release by Terry O'Gorman, Vice-President, Queensland Council for Civil Liberties: Bail

Criticisms of a Cairns Magistrate’s bail decision yesterday as a ‘cop bashing bail outrage’ is sensationalist and ignores the ‘balancing’ provisions of the Queensland Bail Act.

Civil Liberties Vice-President Terry O’Gorman said that three men accused of bashing a police officer after attending a wake were entitled to bail, and criticisms of the Magistrate’s bail decisions are misinformed.As Chief Magistrate Ray Rinaudo said in a media interview earlier this week, bail decisions are a balancing exercise requiring considerations of the seriousness of the offence on the one hand and the likelihood of a person turning up for Court on the other.“Bail decisions are made soon after an arrest and months, sometimes years, before a Court, after weighing the prosecution and defence evidence, comes to a verdict”, Mr O’Gorman said.

Mr O’Gorman said that it has been recognised for decades that the grant of bail is an important process in a free society which rejects any right of the Government or the Police to imprison a citizen upon mere allegations before a trial.

“While the allegations against the three men are serious, they are just that at this early stage in the Court process, untried untested and unproven allegations”, Mr O’Gorman said.

“If the three men are found guilty they are likely to be jailed as Appeal Court cases dictate that serious assaults on Police Officers should attract a jail term”, Mr O’Gorman said.

Mr O’Gorman accused critics of this and other Queensland Court bail decisions of effectively demanding that people accused of certain criminal offences be jailed long before their trial, and not caring if a person is found not guilty after spending months or years in jail awaiting their trial date.

“The Bail Act clearly provides that the Police or a Prosecutor can appeal to a Supreme Court Judge against the Magistrate’s decision granting bail”, Mr O’Gorman said.

by Terry O'Gorman

Federal Government Ministers to appear before the Victorian Court of Appeal

On Thursday June 15 Terry O’Gorman was asked by ABC Radio Current Affairs to comment on reports in the Australian that morning that the Registrar of the Victorian Court of Appeal had called on various Federal Government Ministers to appear before the Victorian Court of Appeal to make submissions as to why they should not be prosecuted for contempt.

The letter from the Judicial Registrar of the Victorian Court of Appeal asserted that statements attributed to various Federal Government Ministers appeared to intend to bring the Court into disrepute. The Ministers’ comments appeared to assert the Judges have and will apply an ideologically based predisposition in deciding a sentence appeal in a terrorism case and that the Judges will not apply the law.

Mr O’Gorman in his interview with ABC Current Affairs distinguished between legitimate, even robust criticism of Judges on the one hand and comments that may be found to be in contempt on the other.

Mr O’Gorman said that criticism of Court decisions was a regular, if not daily, event in Australia.

Criticism is one thing but to suggest, particularly, that Judges in a current Appeal Court hearing would not properly apply the law but would apply their individual ideology in deciding a case is a serious allegation.

Mr O’Gorman said that the Victorian Court of Appeal appearance was the first step in the proceedings. If the Court found that cause had been shown as to why a matter should not be referred for prosecution for contempt, that would be the end of the matter.

If, on the other hand, the Victorian Court of Appeal does refer the Federal Ministers for prosecution for contempt, it is then up to the prosecution authorities to themselves make the decision as to whether they will prosecute.

Mr O’Gorman said that strong criticism of Court Judgments is one thing, but to attack a Judge let alone three Judges on a Court of Appeal suggesting that their approach was ideological and that they would not properly apply the law was very close to a contempt of Court.

Mr O’Gorman said that prosecution for contempt of Court particularly in respect of politicians was a relatively rare event, but a prosecution of this type may well be necessary in order to delineate the boundaries between robust free speech on one hand and comments by Senior Ministers in Federal Government which may be said to deliberately and calculatedly challenge the integrity of the Court itself.

By Terry O’Gorman

15 June 2017

by Terry O'Gorman

Facial Recognition in Queensland

The Toowoomba City Council is trialling facial recognition technology, alarming privacy advocates who fear such a development could lead to bigger databanks of stored personal information.

The Toowoomba Regional Council has begun trialling the software on behalf of the Brisbane, Gold Coast and other Councils.

A roll-out of similar software has been supported by the Federal Government for passport processing in Australia and the Northern Territory Police are already using something similar.

Dr Monique Mann, a law lecturer at the Queensland University of Technology and member of the Australian Privacy Foundation said the Toowoomba Council’s decision was alarming.

Dr Mann has taken up a position adopted by Civil Liberties lawyer Terry O’Gorman for a substantial period namely that the facial recognition implementation scheme is being administratively carried out with no legislative framework and the increased scrutiny that the matter being debated by Parliament as a separate Act of Parliament entails.

Dr Mann said that the facial recognition technology could be used from a distance and that it can be integrated with existing surveillance systems through CCTV in public places enabling tracking through public faces in public places.

Civil Liberties lawyer Terry O’Gorman said that Dr Mann’s concerns were justified and reflected the stance of the Civil Liberties Council for many years namely significant extra powers given to Police are often implemented without any amendment to the Police Powers and Responsibilities.

“The use of pepper spray and tasers are a particular case in point where those processes have been administratively implemented by the Queensland Police Service over the last decade or more without there being the slightest debate in Parliament as to their efficacy and a proper supervision framework”, Mr O’Gorman said.

Mr O’Gorman said that there is a subtle and little publicised spread of CCTV surveillance in public places in Queensland affected not only by the facial recognition technology trial currently being undertaken in Toowoomba but also by the recent announcement of the Moreton Regional Council that CCTV cameras in public places in that Council’s area will have the facility to pick up what is being said by people subject to CCTV surveillance.[i]

By Terry O’Gorman

13 March 2017

[i] Some of the material from this blog has been taken from the ABC News of 8 March 2017.

by Terry O'Gorman

International Warrants Needed to Deal with Growing Surveillance Techniques

The UN Independent Expert on Privacy this week called for a new international treaty to protect people’s privacy from unfettered cyber-surveillance which is being pushed by populist politicians preying on fear of terrorism.

The UN Independent Expert, Joe Cannataci, said traditional privacy safeguards such as rules on phone tapping were outdated in the digital age.

The UN Independent Expert said that with governments worldwide demanding data from firms such as Microsoft, Google, Facebook, Apple and Twitter it was time to look at creating an “”International Warrant” for data access or surveillance.

Civil Liberties lawyer Terry O’Gorman said that the existing national law in Australia was inadequate to deal with what Mr Cannataci has described as “the menace of over-surveillance”.

Mr O’Gorman called on the Federal Attorney-General to lay out Australia’s response to the call by Mr Cannataci for increased privacy safeguards in relation to national surveillance carried out throughout Australia by both the AFP and Intelligence Services.[i]

By Terry O’Gorman

13 March 2017

[i] Part of this article is derived from ITNews.com.au on 9 March 2017.

by Terry O'Gorman

Legal Update: The New Mental Health Act 2016

The new Mental Health Act 2016 commenced on the 5^thMarch 2017. It will replace the Mental Health Act 2000[i].

The new Act rectifies a perceived deficiency in the previous mental health legal framework in Queensland by now expressly enabling Magistrates to discharge persons who appear to have been of unsound mind at the time of an alleged offence or unfit for trial.

Under the new Act, if a person is charged with a civil offence (eg. traffic offences, disorderly behaviour and minor criminal offences) and a Magistrates Court is satisfied that they were of unsound mind at the time of the offence or unfit to stand trial, the Court may dismiss the charge or, if the person is temporarily unfit, adjourn the hearing. To assist the Court in determining the person’s soundness of mind or fitness to stand trial, a mental health assessment may be conducted by the Court Liaison Service.

If the Court dismisses the charge or adjourns the hearing, or otherwise believes it would benefit the person, the Court may make an examination order. To make an examination order the Court must be satisfied the person has a mental illness or is unable to decide whether the person has a mental illness or another mental condition.

An examination order allows the person to be temporarily detained for examination in a public sector health service facility or an authorised mental health service. A mental health examination is used to decide whether to:

Make a treatment authority for the person – providing lawful authority to treat them if they lack the capacity to consent to treatment;

Make a recommendation for the person’s treatment and care; or

Change the nature and extent of treatment and care provided to the person under an existing authority or order.

A mental health examination is intended to inform clinical decision-making about the person’s mental health care and treatment, not to inform the Court about criminal responsibility or fitness to stand trial.

However, under Section 180 of the new Act the examination report, including details of the examination, would be admissible against the person in the criminal proceedings for which the examination order was made and any future proceeding to which it is relevant.

Following the Act receiving assent, Queensland Health has undertaken implementation work including the involvement of a steering committee which raised concerns about the current admissibility in evidence of statements made by a person during a mental health examination in criminal proceedings against a person’s interests. Similar concerns were raised regarding the admissibility of statements made during mental health assessments.

The steering committee considered that allowing statements to be admitted in evidence may deter individuals from being open and honest about the circumstances of the alleged offence, comprising the mental health assessment or mental health examination process, to the person’s detriment. The steering committee has recommended amendments to the new Act and that has been supported by the Chief Magistrate.

There is currently a Mental Health Amendment Bill 2016 before the Queensland Parliament which brings into effect the proposed above changes of note see the Mental Health Amendment Bill 2016 Parliamentary Committee Report tabled February 2017.

By Terry O’Gorman

6 March 2017

[i] The observations in this note are taken from the Report of the Queensland Parliamentary Committee which reported on the amendments last week.

by Terry O'Gorman

Legal Affairs Committee Approves Changes to Justices Act

The Legal Affairs Committee of the Queensland Parliament this week approved proposed changes to the Justices Act which:

Inserts an authority to allow Magistrate to order the joinder of trials;
Allows for admissions of fact in summary trials for simple offences or breaches of duty;
Allows for Registry Committals for legally represented defendants who are remanded in custody; and
Enables the defendant to enter a plea in bulk in the Magistrates Court.

These are important and practical changes to the way the Magistrates Court operates on a daily basis throughout Queensland.

In her Introductory Speech, the Attorney-General (Yvette D’ath) noted that these changes reflect practices from the Supreme and District Courts and apply them to the Magistrates Court.’

By Terry O’Gorman

23 February 2017

by Terry O'Gorman

Abolition of 'Gay Panic' Defence

The Queensland Legal Affairs and Community Safety Committee this week recommended that legislation be passed abolishing the ‘gay panic’ defence in murder cases.

The ‘gay panic’ defence particularly applies in murder cases whereby evidence of an unwelcome sexual advance by the purportedly gay victim towards the accused is lead in support of establishing the defence of provocation.

In November 2011 a Committee chaired by retired Queensland Court of Appeal Judge John Jerrard recommended this change to the law.

The Legal Affairs committee this week approved a law change before the Queensland Parliament to exclude an unwanted sexual advance, other than in exceptional circumstances, from the provocation defence to a murder charge.

The ‘gay panic’ defence (or the defence of provocation) has been abolished in every Australian State or Territory except for Queensland and South Australia and in most jurisdictions the defence has been abolished in either one of two ways:

By abolishing the defence of provocation entirely; or
By enacting a specific exception to the ‘gay panic’ defence in circumstances where a non-violent sexual offence is the only provocative conduct experienced by the defendant.

The law change is expected to be passed by the Queensland Parliament in the next month.

By Terry O’Gorman

23 February 2017

by Terry O'Gorman

Update to Queensland Bail Laws

This week the Legal Affairs Committee of the Queensland Parliament approved changes to the Queensland Bail Act that encourage police to exercise their discretion with regard to bail where a person cannot be taken promptly before a Court.

It is important for practitioners to be aware of this law change as particularly on weekends and especially on long weekends, too often watchhouse keepers refuse to allow an arrested person watchhouse bail only for the Police Prosecutor not to oppose bail in Court on the next Court working day.

It should be remembered that watchhouse keepers when deciding a question of bail are performing a quasi-judicial function and therefore ought to be asked for reasons if watchhouse bail is intended to be denied.

Lawyers should also realise that they have a right to make submissions to the watchhouse keeper addressing the same sort of matters in respect of watchhouse bail as would be addressed in an ordinary Court bail hearing.

By Terry O’Gorman

23 February 2017

by Terry O'Gorman

Terry O'Gorman comments on Senate calls for Pell to return to Australia

Civil Liberties’ lawyer Terry O’Gorman today criticised the Australian Senate motion calling on Cardinal George Pell to return to Australia to assist Police with child sexual abuse investigations.

Mr O’Gorman said that the Australian Senate motion was yet another example of politicians politicising the criminal investigation and related Court processes.

“Great care has to be taken, particularly by politicians using the ‘coward’s castle’ of Parliament, to prevent the current Royal Commission into Institutional Response to Child Sexual Abuse from becoming a witch hunt”, Mr O’Gorman said.

“It is obvious to anyone who has followed the Royal Commission since its establishment that Cardinal Pell has fully cooperated with the Royal Commission both by giving evidence in Australia and in giving evidence from Rome”, Mr O’Gorman said.

“The wording of the Senate motion namely calling on Cardinal Pell to return to Australia to assist Victorian Police and the Office of Public Prosecutions was totally misguided and reflected the total lack of appreciation by those who voted for the Senate motion of the importance of observing the separation of powers doctrine which is fundamental to Australian democracy but also indicates an appalling, and one suspects, a wilful ignorance of the processes of Police investigations and decisions to prosecute by the DPP”, Mr O’Gorman said.

Mr O’Gorman said that it was imperative that politicians and other community leaders not whip up hysteria in relation to matters arising from the Royal Commission as that will negatively affect balanced and serious consideration by the community of the Royal Commission in respect of its final recommendations which are due in the next number of months.

By Terry O’Gorman

9 February 2017

by Terry O'Gorman

Support and Opposition for Domestic Violence Bail changes

Civil Liberties’ lawyer Terry O’Gorman said the aptly described “extraordinary change”[1] proposed to the bail system reversing the onus of the proof and forcing alleged perpetrators to prove to a Magistrate or Judge that they should be given bail is unnecessary and would see alleged perpetrators spend many months on remand before their cases are heard, some of whom will be found not guilty.

“Denial of bail is a significant factor causing overcrowding in Queensland jails” Mr O’Gorman said.

Mr O’Gorman said that research sponsored by the Australian Criminology Research Council shows that over the last 5 years unsentenced prison numbers in Australia have increased by 81%. This trend has been properly described as socially irresponsible and unsustainable[2].

Mr O’Gorman said the existing Bail law which gave Magistrates powers to adjourn a bail hearing to allow the mental health of an accused to be comprehensively assessed could be extended to serious domestic violence offenders while still keeping the onus of proof to convince a Court that a domestic violence accused should be refused bail on the prosecution.

“To shift the onus of proof for bail release to an accused person is to further aggravate the significant, indeed huge, inequality of arms (resources) between the Prosecution and the Defence” Mr O’Gorman said.

“The overwhelming number of domestic violence bail applications are done by overworked and under resourced Legal Aid Duty Lawyers where often a whole squad of police have had many hours to put together a case overnight before a domestic violence accused first faces Court” Mr O’Gorman said.

Mr O’Gorman said that while the Teresa Bradford tragedy cannot and should not be ignored, one bail hearing that resulted in her alleged killer being granted bail does not demonstrate a systemic problem with the domestic violence bail system.

“False allegations of domestic violence are frequently made including to advance the Family Court cases of warring spouses. Shifting the onus of proof on domestic violence bail hearings will further aggravate the problem and cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped” Mr O’Gorman said.

By Terry O'Gorman

2 February 2017

[1] See Courier Mail, Thursday 2 February 2017 “Review to place onus on accused”.

[2] See Rick Sarre, Professor of Law University of South Australia – The Conversation – 23 January 2017. Note alsothe Australia wide figures are applicable to Queensland.

by Terry O'Gorman

Consorting Laws

The observations outlined herein are taken from the Attorney-General's parliamentary speech when introducing the consorting laws. The Attorney-General's speech is referred to by the Courts in interpreting a new law such as consorting.

The consorting law makes it a criminal offence for a person to associate with two other people who have certain previous convictions. It is preceded by a warning to the person that continued association is a criminal offence. The new offence will apply only to adults, that is, people aged 18 years or over and will not apply to young people. A person must consort on two occasions with at least two people who are recognised offenders.

A recognised offender is defined to mean a person who has previously been convicted of an indictable offence punishable by a maximum penalty of five or more years imprisonment or to prescribed offences where the maximum penalty falls below five years but which have been identified as being associated with organised crime, such as riot.

In relation to the issue of warnings a person must first be officially warned, and at least one of those occasions of consorting must occur after the issue of the warning. The official warning can be given orally or in writing and must be given in relation to each convicted offender. If the official warning is given orally it must be confirmed in writing including by electronic means within 72 hours, otherwise the oral warning lapses and has no legal effect.

Warnings can be given pre-emptively. For example, the official warning can be issued by police without any consorting ever having occurred. But the person must then consort with those persons on two occasions post-receipt of the warning.

Warnings can also be given retrospectively. For example, where there is video footage uncovered that shows consorting.

The consorting can occur in public or in private and is not limited to physical association. The offence is sufficiently broad so as to capture any kind of communication, for example, over the phone, email or social media. There is no requirement that the consorting be linked to, or have any suspected link to, criminal activity in any way.

Certain types of consorting must be disregarded if the person can satisfy the Court on the balance of probabilities that the consorting was reasonable in the circumstances and that one of the following applies:

Consorting with close family members;
Consorting that occurs in the course of lawful employment;
Consorting that occurs in the course of the provision of a legitimate and necessary health service;
Consorting that occurs in the course of a person obtaining legitimate education;
Consorting that occurs in the course of a person obtaining legal services; or
Consorting that occurs in lawful custody.

The onus of proving that the act of consorting is one that must be disregarded and that it was reasonable in the circumstances falls to the person charged.

The offence is punishable by a maximum penalty of three years’ imprisonment and the offence is indictable but may be dealt with summarily on defence election.

The new consorting offence has warrantless stop, search and detain powers for police. Police are allowed to search a person they reasonably suspect has consorted, is consorting or is likely to consort with one or more recognised offenders. Where a police officer holds a suspicion they may also:

Require the person to provide their name, address and date of birth;
Take the person’s identifying particulars if necessary to confirm their identification;
Give the person an official warning for consorting; and
Require the person to move on from the place where an official warning has been issued.

Police also have been given a new power that where a police officer has given a person an official warning for consorting and the officer reasonably suspects that the person is consorting at the place with the recognised offender, the officer may require the person to leave and not return within a reasonable time of not more than 24 hours (a new form of move on power).

The move on power has a safeguard that provides the police cannot require the person to leave the place if doing so would endanger the safety of the person or someone else, for example, requiring the person to leave a vehicle in which recognised offenders are passengers in circumstances where the person has no access to alternative transport.

The effectiveness and use of the offence and associated police powers have to be reviewed by a retired Judge within five years.

It is important that anyone who is subject to the exercise of these new consorting laws and considers they have been unfairly dealt with sends a brief note to Robertson O’Gorman Solicitors as we are compiling a dossier on the use of the consorting powers for the purpose of the review in five years.

By Terry O'Gorman

23 January 2017

by Terry O'Gorman

International Criminal Law Congress 2016

15^th International Criminal Law Congress 2016

12 – 16 October 2016, Adelaide, South Australia

I became involved in civil liberties in Queensland as early as 1971 when the Springbok racially selected South African Rugby Team toured Australia. There were many civil liberties controversies between 1971 and 1977 that are too numerous to account here. There then followed the 1977 street march ban introduced by the same Bjelke-Petersen Government. Without any consultation or prior announcement the Premier came into the Queensland Parliament one afternoon and amended the Traffic Act. The then existing law which gave an appeal to the Magistrates Court from the police refusal to allow a permit for a political street process was changed so that the ‘appeal’ lay from the Superintendent of Traffic who refused the permit to the Police Commissioner. That same Police Commissioner was later jailed in the 90s for endemic corruption.

It was no surprise that not one permit was granted. The height of the absurdity that became the 1977 street march ban occurred one afternoon in October in 1977 when 400 people were arrested in one afternoon simply for walking around the block from the city square. The arrests were for taking part in an illegal street march. Among the lawyers who walked out of the watchhouse the next day was Wayne Goss who later became Queensland’s premier and Matt Foley who became Attorney General in the Goss Government.

There then followed the 1987 to 89 Fitzgerald enquiry which revealed endemic police and political corruption. A major overhaul of the police service resulted along with some changes designed to make the Queensland political system more accountable.

We saw the return to Bjelke-Petersen’ism in the Newman Government in the period 2012 to 2015. The absurdly named VLAD (Vicious Lawless Association Disestablishment Act) and a number of extreme provisions including mandatory minimum of imprisonment of 25 years on top of a sentence that a person was arrested for if the offence, essentially, was committed by three or more persons with a common and organised purpose.

The DPP - Over the last 30 years and into the future

DPP Offices were set up throughout Australia from 1983 to the early 90s starting first with Victoria, the Commonwealth and then quickly followed by other states. The role of the DPP was stated to be to take the politics out of the decision to prosecute. While this has been largely achieved over the last 30 years the independence of the Office of the Director of Public Prosecutions has been far too compromised by timidity caused by fear of the media.

It has been said that the Prosecutor’s importance within the criminal justice system cannot be overestimated.

If the decision to prosecute Socrates was made by a trio of private citizens namely, a politician, a poet and a rhetorician and in another well-known trial 400 years later Pontius Pilate first found no basis for a charge against Jesus but later left his prosecution to a crowd, the prosecutorial discretion and decisions to prosecute under the Australian DPP model has little accountability.

It has been said that ‘it is something of an oddity that the Prosecutor has few limitations and is subject to little scrutiny’.

Judicial Review of prosecution decisions is not available. So said the High Court in Maxwell’s case in 1996.

A prosecutor’s decision whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and decisions as to the particular charge to be laid or prosecuted are not open to review.

Further, the office of the DPP also has its own problems. The role of the DPP is an appointed one and while the office bearer in theory has independence, at least for the duration of the appointment, the term of the appointment is not consistent throughout Australia.

What for the future for the Office of the DPP. It really is an absurdity that an acquitted accused can in certain circumstances recover his costs in proceedings before a Magistrate but, even with the exception of the cost regimes operating in at least 2 states, effectively cannot recover his costs if acquitted by a jury in the relatively infrequent number of cases where a higher court prosecution is discontinued.

Any experienced defence practitioner knows that the only brake that exists in relation to unmeritorious prosecutions in the Magistrates Court is the threat of a costs order. No such brake, ironically, exists in respect of a DPP Prosecutor in relation to Judge and Jury matters. This must change.

Crime Commissions

Most Australian jurisdictions have Crime Commissions of one sort or another.

A frequent criticism of Crime Commissions is that their work is inimical to a fair trial. It has been said that the coercive power of these agencies together evidence powers denied to the Police Services give crime commissions and ultimately the prosecution unfair advantage.

It is instructive to observe Mr O’Regan who himself would later become the Chair of the Queensland Criminal Justice Commission noted that “none of the Commission’s powers should be exercisable unless judicial approval has first been obtained and in that regard he noted that that was the opinion of Tony Fitzgerald QC who headed the landmark Fitzgerald enquiry in Queensland from 1987 to 89 where Fitzgerald said:

“The Official Misconduct Division would have access to more powers than most investigative bodies. Each such power should only be able to be used by any member of the Official Misconduct Division on judicial authority. The standard of control on the exercise of those powers must be unreservedly high”.

Considering how much power have been given to Crime Commissions around the county since that time, Mr O’Regan’s enforcement of Mr Fitzgerald’s indication of the need for judicial authority before Crime Commissions exercise their coercive powers seems now somewhat extraordinary. But it shows how far we have travelled in the last 30 years in terms of the extraordinary powers which now are exercised by Crime Commissions around the country.

How far we have travelled down the road of giving Crime Commissions excessive powers is reflected in two recent incidents.

The public but very necessary controversy between ICAC Chairman Megan Latham and ICAC Inspector Devine and the related discussion about people declared guilty by ICAC seeking Clearance Certificates in the Supreme Court demonstrates the very real problem posed by Crime Commissions in this country.

The fact that a very senior public servant in New South Wales lost his job and his career because of a so called public finding against by ICAC only to be acquitted on trial demonstrates the necessity to reign in Crime Commissions.

It is instructive to observe only 15 months ago a damning victorious systemic misconduct inside the specialist covert operations unit of Western Australia’s Corruption and Crime Commission emerged from an investigation by the Commissions Parliamentary Inspector.

The report by ex-Supreme Court Judge Michael Murray QC catalogued 23 allegations of misconduct ranging from theft to improper interference with a police investigation.

The allegations against the officers included false record keeping, unauthorised use of Commission equipment, misuse of an assumed identity, failure of an officer to disclose he had been arrested and convicted for possessing a prohibited drug, improper purchase of 2 motor vehicles and unlawfully obtaining a driver’s license under an assumed identity.

The active and effective oversight roles by the relevant Parliamentary Inspectors over the New South Wales ICAC and Western Australia’s Corruption and Crime Commission needs to be replicated throughout Australia particularly in Queensland, Victoria and South Australia whose Parliamentary Inspectors in respect of the various Crime Commissions in those states appear to have been significantly less effective.

The increased policing role being carried out by Crime Commissions particularly through the Investigative Hearing process is a considerable cause for concern. Not only in a practical, if not in a legal, sense does the increasing police role impinge on the right to silence, in those states such as Queensland the Crime Commission forms a dual role of greater policing and undertaking complaints against police results in a seriously conflicted process.

Mandatory Sentencing

Most Australian jurisdictions have by now incorporated some form of mandatory sentencing into their overall sentencing regime. Whether in the form of fixed mandatory penalties, mandatory minimum standard non-parole periods or presumptive sentencing regimes (for example where an offender must serve a period of imprisonment unless there are exceptional circumstances).

In 1997 the Northern Territory introduced a ‘3-strike’ mandatory sentencing regime for property offences: 14 days imprisonment for a first offence, increasing to three months imprisonment for a second offence, and increasing one year for a third offence.

A number of people caught by that regime received penalties which were, objectively in any view, grossly disproportionate to the seriousness of their offending.

These are some examples:

A 27 year old teacher convicted of unlawful damage (she disputed the quality of a hotdog at a fast food bar and poured water on a cash register). She paid in full for the damage caused and was sentenced to 14 days actual imprisonment.
A 19 year old convicted of stealing alcohol worth $2.00 sentenced to 14 days actual imprisonment.
A 24 year old Aboriginal mother with no criminal history convicted of receiving stolen property being one can of beer worth $2.50 sentenced to 14 days actual imprisonment.
22 year old convicted of stealing biscuits and cordial worth $23.00 sentenced to one year actual imprisonment.
A 29 year old homeless Aboriginal man who had 2 previous minor property convictions of convicted of stealing where he wandered into a backyard when drunk and took a $15.00 beach towel from a clothes line sentenced to one year actual imprisonment.

In 1999 the Northern Territory amended the 3-strike regime to allow for sentencing alternatives in exceptional circumstances and the laws were appealed in 2001.

The Queensland’s Drug Misuse Act had a mandatory life imprisonment regime that applied until 1990. It ran for a period of 2 years.

The Labor Police Minister in abolishing the fixed mandatory sentencing regime said that “Judges were forced to sentence hopeless drug addicts to life imprisonment… many of the 21 people now serving mandatory life sentences in Queensland gaols are little more than hopeless drug addicts” with the abolition of the mandatory life sentence term all 19 prisoners serving life had the sentences reviewed. For example a female who’d been sentenced to life imprisonment for supplying, possessing and trafficking heroin was sentenced to mandatory life imprisonment and after the law was amended on review her sentenced was reduced to 4 years imprisonment.

Federally under the Migration Act mandatory sentencing is prescribed. In one people smuggling case where the sentencing Judge found that a crewman had been motivated by extreme poverty where he was earning about $60 a month as a fisherman in Indonesia and supporting his wife and daughter. He was approached by a man who offered him $1200 to take on a role in people smuggling. The sentencing Judge noted that the appropriate sentence would have been three years imprisonment with a non-parole period of 18 months but the accused in that case was required by the mandatory sentencing regime to be sentenced to at least 8 years imprisonment with a non-parole period of 5 years. The Judge in that case felt so strongly about the injustice caused that the Judge recommended that the Commonwealth Attorney General exercise his prerogative to extend mercy to him.

As a consequence of this case an agreement was reached between the Commonwealth Attorney General and the Director of Public Prosecutions that ‘a charging policy would prevail of avoiding offences carrying mandatory minimum sentences wherever that could be done”. Thus the sentencing function was, effectively, to be pushed down to prosecutors who are not publically accountable in a way that Judges are.

It is encouraging that in Frank Brennan’s speech early this week he noted that “it is good to see that the Australian Bar Association has pledged to join a national campaign to amend or remove all mandatory sentencing laws….”

Recently in the Melbourne Age John Silvester who is a former police officer and now a weekly columnist for The Age noted that at a time that the United States are moving away from mandatory sentencing Australian States are moving more in the direction of mandatory sentencing.

Nowhere is this more starkly illustrated than in Queensland. The previous LNP Government anti-bikie laws had mandatory sentencing of 25 years on top of the sentence a bikie was arrested for even if that sentence was a fine where the offence was committed by three or more people in the so called organised crime context.

The current Labor Government in Queensland has a bill before the Queensland parliament reducing that figure to 7 years. In the explanatory notes to this legislation it was conceded that a person might not receive jail for the base offence (the offence a person had actually been arrested for) but would still have to serve 7 years on top of the non-jail term if the offence was committed within the so called organised crime context.

Organised crime is very widely defined to effectively, refer to 3 people effectively committing a common purpose offence and it applies even to such offences as stalking.

Conclusion

This short and obviously selective review of parts of the landscape of the Criminal Justice system over the last 30 years presents a rather depressing picture.

Time Magazine observed in its October edition last year that 30 years ago 10% of California’s general revenue went to higher education and just 3% went to prisons. Today 11% goes to prisons and 8% to higher education. There are now about as many people working in the prisons business in the US as in manufacturing.

The same depressing picture applies to Australia.

Churchill said that the moods and temper of the public in regards to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.

For the last 30 years there has been a large gap between the perception of crime and the reality. It is to be hoped that in the next 30 years the reality of crime can be effectively portrayed and the false perceptions caused by populist law and order politicians can be shown to be the empty rhetoric they are.

The philosopher Thomas Hobbs noted that the greatest power a government can have is to define the terms of the debate. Criminal defence lawyers must strongly and publically participate in this debate so that it is not left to government alone.

Or to apply to criminal lawyers the saying of Martin Luther King: there comes a time when you have to stop being a thermometer and become a thermostat that transforms the morays of society.

Rights for victims need not be secured at the expense of traditional procedural safe guards as though Justice was some kind of commodity that must be taken from some (criminals) so that others (victims) may have more.

Speech delivered by Terry O’Gorman

16 October 2016

by Terry O'Gorman

Media Release by Terry O'Gorman, Vice President Queensland Council for Civil Liberties

The Civil Liberties Council today attacked the State’s Government new ‘bikie laws’ particularly the mandatory seven year prison term to be served on top of the sentence that a person has been arrested for.

Civil Liberties Council Vice President, Terry O’Gorman, said that the reduction of the mandatory term from 15 years under the Newman Government VLAD laws to seven years in the Palaszczuk Government bikie laws is only slightly less severe but the fundamental injustices and serious unfairness of a mandatory sentencing scheme remain.

The Council agrees with the stance adopted by the conservative Rule of Law Institute who submitted to the Wilson Taskforce which reviewed the Newman bikie laws that “the use of law to impose excessively mandatory sentences to achieve the political objectives of the Parliament to be ‘tough on crime’ is incompatible with the operation of the Rule of Law”.

Mr O’Gorman referred to the comments of the Chief Justice of the High Court of Australia in the Kuczborski VLAD case who observed:

“Under the VLAD Act it is quite possible that a person who would not receive a custodial sentence in the lower range of seriousness (for the offence the person was arrested for) would nevertheless be sentenced to a mandatory 25 years imprisonment”.

Mr O’Gorman said that the Attorney-General (Yvette D’Ath) said in the Explanatory Notes to the new bikie laws that “If the base component (the sentence a person gets for the offence that person was arrested for) does not require the offender to immediately serve a sentence of imprisonment, the offender is to immediately begin to serve the mandatory component”.

Mr O’Gorman said that the Wilson Taskforce noted that mandatory sentencing of this type is a strong incentive for an accused to provide false information in the hope that they can avoid the mandatory sentence.

“We will inevitably witness the spectre of a person fabricating evidence and falsely accusing someone of a crime that they have not committed in order to avoid the mandatory sentence” Mr O’Gorman said.

Mr O’Gorman said it is ironic that Queensland is walking the failed path of mandatory sentence at a time when the criminal justice system in the United States is starting to retreat from mandatory sentencing.

Mr O’Gorman said that informers who currently seek reduced sentences in the current non mandatory sentencing scenario are dealt with in closed Court despite the Supreme and District Court Bench Book noting that ‘openness of our Courts is a fundamental principle of our judicial system’.

Mr O’Gorman said that informers escaping the mandatory seven year imprisonment on top of the sentence for the offence that they have been arrested for because they are dealt with in closed Court far from the prying eyes of the media will inevitably cause miscarriages of justice.

The mandatory sentencing scheme means that a Court will be bound to sentence a person to seven years even if they do not receive imprisonment for the offence they are arrested for.

This makes DPP Prosecutors far too powerful as the now discredited US mandatory sentencing scheme was filled with examples of Prosecutors misusing their position and forcing people to plead guilty under threat of indicting them for offences that carried large mandatory sentences.

Mr O’Gorman said that during the Wilson Taskforce Report there was voting by a majority of four to two against the introduction of mandatory sentencing with the Queensland Police Union and the Commissioned Officers Union arguing for mandatory sentencing.

“After the release of the Wilson Taskforce Report it appears only the police have been consulted by the Government and the Bar Association and the Queensland Law Society were only briefed on the details of the legislation once policy decisions about the new law were made by the Government after secret police briefings.

Mr O’Gorman said that it was an outright absurdity that a Court could be forced to sentence a person to a mandatory seven years imprisonment if the Court decided that the offence that the person had been arrested for did not itself require a term of imprisonment.

“The Civil Liberties Council urges the cross benchers to reject the seven year mandatory sentencing as it inevitably is going to cause serious miscarriages of justice”.

by Terry O'Gorman

Bikie Laws: QCCL Submission to the Legal Affairs and Community Safety Committee

Terry O'Gorman on behalf of the Queensland Council for Civil Liberties wrote a submission to the Legal Affairs and Community Safety Committee regarding the recent Serious and Organised Crime Legislation Amendment Bill 2016.

This can be viewed here.

A copy of the submission is produced below for convenience.

6 October 2016

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

By email: lacsc@parliament.qld.gov.au

To the Honourable Members of the Legal Affairs and Community Safety Committee,

SERIOUS AND ORGANISED CRIME LEGISLATION AMENDMENT BILL 2016

The Queensland Council for Civil Liberties (the Council) thanks the Legal Affairs and Community Safety Committee for the opportunity to make a submission on the Serious and Organised Crime Legislation Amendment Bill 2016.

The Committee’s Briefing paper claims that the legislation implements the ‘ethos’ of the Taskforce’s Report.[1] However, the Council is concerned that key warnings contained within the Wilson report have been ignored by the Government. The Council is also unconvinced with the limited justification given in the Explanatory Memorandum in line with section 4(2) (a) of the Legislative Standards Act 1992.

In particular the Council makes the following observations;

1.1. New Consorting Offence

The Bill replaces 2013’s anti association offence with a new consorting offence.[2] This provision is claimed to reflect ‘in principle’ Recommendation 18 of the Wilson Report.[3] It draws heavily on the equivalent NSW provisions as noted in Committee’s briefing note.[4]

The Wilson report noted that the NSW laws have been used by police to ‘disproportionately target marginalised groups.’[1]The NSW Ombudsman’s study revealed that 38% of issued warnings were for Aboriginal people and that the provisions had been enforced disproportionately against, for example, youth.[2] Concerns exist that NSW’s ‘wide net’ approach ‘creates an extremely fertile ground’ for corruption.[3] It was against this background the Taskforce took ‘careful note’ of the risks associated with a NSW Model in constructing their proposal.[4]

Therefore, the Council is concerned that the proposed consorting offence does not pay due regard to the issues that arose in NSW and the Taskforce’s consequent suggestions for appropriate safeguards.

i) Definition of Recognised Offender

The proposed Queensland provision differs from NSW on the basis that for a warning to be given a person must be convicted of an indictable offence punishable by a maximum of 5 years.[5] This departure from the NSW model is claimed to allay the issues raised by the NSW Ombudsman.[6] However, the Council points out that the majority of other Australian jurisdictions require the offence to be punishable by 10 years.[7]

Similarly, the Taskforce considered that it was important that the offence be limited so not to apply to those convicted with ‘objectively low-level’ offences that qualify as consorting simply by virtue of their penalty.[8] The Report called for the explicit exclusion of offences such as small scale drug offences.[9]The provision proposed by the Bill does not exclude any such offences.

In fact, provision is made for offences carrying a maximum lower than 5 years to be included in certain circumstances.[10]The Council is concerned that although the 5 year requirement is an improvement on NSW’s ‘wide net’ approach it continues to risk catching low level offending.[11] In echoing the NSW Council for Civil Liberties concerns it is our view that, should a consorting offence exist at all, it should be sufficiently specific. This will ensure the consorting offence only captures the most serious offending, such as that punishable by 15 years.[12]

ii) Defence of Reasonable Excuse

The proposed offence includes various defences to consorting such as family and work interactions.[13] The Taskforce recommended that, in addition, a general defence should be included for those situations that, although reasonable, may not fall into a specific category.[1] Despite such a recommendation, a general defence of reasonable excuse is not included in the proposed provision. The Council submits that a general defence of reasonable excuse is necessary to ensure that everyday lawful conduct does not equate to consorting. The NSW Ombudsman Issues Paper pointed out that an insufficient defence scheme led to situations such as travelling to hospital with friends to visit a patient being unreasonable.[2] A general defence is crucial in avoiding such absurd situations.

i) Onus of Proof

The Council is concerned with the reversed onus of proof in relation to the defences of reasonable excuse. We would echo our NSW colleague’s submissions to the NSW Ombudsman which also reflects the Law Society of NSW’s rejection of a reversed onus of proof.[3] The reversal of the onus of proof is inappropriate and wrong and is, as the Taskforce noted, ‘fundamentally (opposed) to the historically evolved, sophisticated system’ we have.[4]

1.1. Mandatory Sentencing

i) Generally unjust

The majority of the Taskforce reported they were ‘fundamentally opposed’ to mandatory minimum sentencing.[5]

The Council agrees with the submission by the conservative Rule of Law Institute that

“…The use of law to impose excessive mandatory sentences to achieve the political objectives of the Parliament to be ‘tough on crime’ is incompatible with the operation of the rule of law in Australia.”[6]

The Council refers the committee to the Wilson Report’s extensive summary of the negative practical impacts of mandatory sentencing.[7] As pointed out by Melbourne Age police reporter and ex-Victorian Police Officer John Silvester recently, Australian States seem to be walking the ‘failed path’ of mandatory sentencing which the United States is starting to retreat from.[8]

No discussion of the Taskforce’s rejection of mandatory sentencing occurs in the Bill’s Explanatory Memorandum. The Council submits that although the proposed reduction of the mandatory term from 15 to 7 years is slightly less severe, the fundamental injustices and serious unfairness of a mandatory scheme remain.

Of particular note is the likelihood that mandatory sentencing leads to ‘charge-bargaining’ whereby discretion is removed from the court and given to the Prosecution.[1] Similarly the Taskforce outlined the risks, as acknowledged by the Queensland Police Service itself, of promises or inducements by authorities.[2]

Your attention is drawn to the comments of the Chief Justice of the High Court of Australia in Kuczborski quoted in the Taskforce Report at page 111:

“Under the VLAD Act it is quite possible that a person who would not receive a custodial sentence in the lower range of seriousness would nevertheless... be sentenced to a mandatory 25 years imprisonment”

It is the Council’s position that this observation by the Chief Justice is applicable to the new mandatory minimum scheme of 7 years.

The fact that the VLAD law injustices adverted to by the Chief Justice is replicated in the Serious and Organised Crime Bill 2016 is reflected in a statement made in the Explanatory Notes namely:

If the base component does not require the offender to immediately serve a sentence of imprisonment in a Corrective Services facility, the offender is to immediately begin to serve the mandatory component... (see page 121 Explanatory Notes).

i) Incentive for False Information and Fabrication of Evidence

The Council strongly shares the Taskforce’s concern that this provision is a ‘strong incentive’ for an accused ‘to provide false information in the hope that they can avoid the mandatory sentence.’[3] This risk was also identified by the Bar Association in their submission.[4] As noted by the Taskforce, when one considers the severity of the mandatory sentencing regime, such a concern cannot be disregarded as ‘fanciful or exaggerated.’[5] The Council would remind the committee of the issues that emerged both in the UK in the 1970s and 1980s but also domestically after the Fitzgerald Inquiry with informers or what were colloquially referred to as ‘grasses.’[6]

The Council also notes that these concerns are heightened when one considers these informers are dealt with in closed court. The Supreme and District Court Benchbook confirms that ‘openness of our courts is a fundamental principle of our judicial system.’[7] It is well settled that ‘secret courts are regarded as having a propensity to spawn corruption and miscarriages of justice.’[1] The Council warns that in light of the Taskforce’s position on the incentive to provide false information the nature of closed courts leaves little room for accountability or oversight under this proposed legislation.

Enclosed is a relatively recent article from the 2013 UK publication Criminal Law Review which notes that the use of supergrass evidence (which will occur under the current 7 year mandatory minimum regime) has been marred by a troubled past.. (and) it was ultimately discredited by damning findings of police corruption (and) the use of particularly unfavourable supergrasses.

For those who did not live through the 70s and 80s both in the UK and this country and who did not witness the misuse of supergrasses the enclosed article is informative.

1.1. Restricted Premises and Police Powers

These amendments allow a senior police officer to make an application to a Magistrate to have premises declared ‘restricted’ on the basis that there are reasonable grounds for suspecting that ‘disorderly activity’ is occurring on those premises or that ‘prescribed offenders attend the premises.[2]The Council considers the definition of ‘disorderly activity’ to be not only particularly far reaching but also vague.

The Council is particularly concerned that a restricted premises order, which can last for up to two years, allows for police searches to be undertaken without a warrant.[3] Such a provision ignores the crucial policy considerations underpinning provisions of the Police Powers and Responsibilities Act which safeguard against police misconduct.

1.2. Control Orders

The Bill proposes that a mandatory control order be applied where there is a conviction under the new Serious Organised Crime circumstance of aggravation. Discretionary control orders can also be sought by the prosecution for any other indictable offence.[4]

The Bar Association did not support the Taskforce’s recommendation for mandatory control orders.[5] The Council echoes those concerns particularly when one considers the impact an order will have on an accused’s work prospects.

The Explanatory Memorandum notes that control orders ‘are intended to become relevant in the assessment of a person’s suitability for a licence, permit, certificate or other authority under the affected occupational licensing Acts.’[6] The Explanatory Memorandum conceded the provision infringes on, for example, a right to work[1] and will be a consideration when someone applies for a wide range of work licences.[2]

The Council is concerned that although the court’s discretion may allow for minimal conditions for less serious circumstances, a control order will still unfairly impinge on a person’s right to work. The safeguard which makes conditions discretionary is made redundant by the mandatory nature of the order in relation to serious organised crime circumstances of aggravation offences.

This unjustifiably leads to the grave potential to affect a person’s ability to work, or attain the requisite licences to work.

5. General Concerns regarding Legislative Scrutiny

The Explanatory Memorandum, pursuant to section 4(2) (a) of the Legislative Standards Act 1992, provides an explanation of how each of the above provisions will impinge on various civil liberties and rights.

However, it is the Council’s view that the justifications given are insufficient. Beyond claiming that provisions, for example, are ‘justified to punish and signal the community’s disapproval of serious and organised crime’[3] little substantive discussion of the affected rights occurs.

The ‘nebulous’ effect of Legislative Standards Act has been highlighted by the current Human Rights Inquiry.[4] In our submission more should be done to justify why the provisions’ concepts of necessity and public safety outweigh fundamental legislative principles and civil liberties.

It is noted that a submittee to the recent Queensland Parliamentary Inquiry into a possible Human Rights Act for Queensland noted:

The Legislative Standards Act 1992 (Qld) Section 4 (3) contains a relatively nebulous requirement that legislation should have ‘sufficient regard’ to the rights and liberties of individuals. The enumerated rights and liberties cohere with several, traditional, common law rights (eg. natural justice) and ‘Rule of Law’ concepts (eg. clear and precise legislative drafting). But the scope of rights to be considered by Queensland’s (portfolio) committees when examining bills and subordinate legislation is thin compared to legislative review processes under statutory human rights internationally and in Victoria and the ACT (see submission number 468 page 9 to the Human Rights Inquiry).

The Parliamentary Committee Briefing Note in relation to the Serious and Organised Crime Legislation Amendment Bill 2016 notes (and this is particularly relevant to the still absurd 7 year mandatory minimum):

The Government’s Regime implements the ethos of the Taskforce recommendations, and the recommendations of the Commission but makes enhancements and adaptations aimed at balancing the legal challenges emphasised by the Taskforce where the operational needs of

law enforcement agencies (emphasis added) (see Parliamentary Committee Briefing Note page 7).

What has in fact occurred (particularly by reference to page 241 of the Taskforce Report) is that despite the Taskforce Chair, the Bar Association, the Queensland Law Society and the Public Interest Monitor being opposed to a mandatory sentence regime for the new serious organised crime circumstances of aggravation offence, subsequent to the production of the Taskforce Report the views of the Police have reigned supreme, euphemistically described in the extract from the Parliamentary Committee Briefing Note (above) as ‘enhancements and adaptations’.

After the release of the Wilson Taskforce Report it appears only the Police have been consulted by the Government. The Bar Association and the Queensland Law Society have been briefed once policy decisions were made by the Government after secret police briefings.

The Taskforce over numerous pages in its report detailed a large number of instances in other States of Australia where mandatory minimum sentences have wreaked injustice.

Despite the detailed and careful work of the Taskforce law and order populism rather than the carefully reasoned arguments of the Taskforce Report wins out in a way that is inevitably going to produce serious injustices.

The Council cannot emphasise enough the dangers presented by the new 7 year mandatory minimum.

Conclusion

The Council respectfully submits that the proposed provisions in the Serious and Organised Crime Legislation Amendment Bill 2016 do not reflect the far-reaching and detailed work leading to the Taskforce’s Report. The failure to implement key safeguards proposed by the Wilson Report results in the continuation of harsh outcomes particularly with the 7 year mandatory minimum. Without the full force of the recommendations in the Taskforce’s Report many of the unjust concerns that arose under the VLAD laws will continue to occur, especially in relation to the mandatory minimum 7 year extra sentence on top of the base offence for the serious organised crime circumstances of aggravation offence.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT

[1] Explanatory Memorandum, p39.

[2] Explanatory Memorandum, p92.

[3] Explanatory Memorandum, p36.

[4] Committee Report, p8; Peter Billings, submission 468, p 9

[1] G. Nettheim, “Open Justice versus Justice”, Adelaide Law Review 9(4) May 1985, 487; Chief Justice Murray Gleeson, 'Judicial Accountability' (1995) 2 Judicial Review 117, 123-4. See also Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J)

[2] Briefing Paper, p16.

[3] Briefing Paper, p16.

[4] Explanatory Memorandum, p21.

[5] Wilson Report, p257.

[6] Explanatory Memorandum, p30.

[1] Wilson Report, 232;

[2] Wilson Report, 236.

[3] Wilson Report p225.

[4] Bar Association of Queensland, Submission 5.1 to the Taskforce on Organised Crime Legislation, 5 August 2015, 8-9.

[5] Wilson Report, p225.

[6] See, for example, Duncan Campbell, 1996, Put out to Grass; Use of Informers by British Police, The Guardian, April 30, 1996.

[7] Supreme and District Court Benchbook: Closed Court Exceptions September 2014 Amendment; Scott v Scott [1913] AC 417.

[1] Wilson Report, p198.

[2] NSW Ombudsman Issue Paper, p44-45.

[3] NSWCCL Submission p20; NSW Ombudsman Issue Paper p47.

[4] Wilson Report, p178.

[5] Wilson Report, p181.

[6] Rule of Law Institute of Australia, Submission 5.2 to the Taskforce on Organised Crime Legislation, 7 August 2015, 2.

[7] Wilson Report p230 -234.

[8] John Silvester, How to break the crime cycle, The Age, 30 September 2016, http://www.theage.com.au/victoria/how-to-break-the-crime-cycle-20160929-grr3kg.html

[1] Wilson Report, p25

[2] NSW Ombudsman Consorting Issues Paper, p30.

[3] Alex Steel, Consorting in New South Wales: Substantive Offence of Police Power? (2003) 26 U.N.S.W.L.J 267, 598.

[4] Wilson Report, p196.

[5] As opposed to any indictable offence in NSW; Briefing note, p12.

[6] Briefing note, p12.

[7] Victoria, Northern Territory; see Wilson Report p196.

[8] Wilson Report, p196.

[9] Wilson Report, p196.

[10] Explanatory Memorandum p10

[11] Wilson Report p196.

[12] NSWCCL Submission p10.

[13] Briefing note, p13.

[1] Briefing Paper, p2.

[2] Explanatory Memorandum, p9.

[3] Explanatory Memorandum, p10.

[4] Briefing note, p15; Explanatory Memorandum p10.

by Terry O'Gorman

Media Release by Terry O'Gorman: Palaszczuk Government's Proposed Bikie Laws

Yesterday’s and today’s media claims that revised so called bikie laws will “lift ban on bikie bars” and will allow “bikies to get back licences for guns” have been described as incorrect and alarmist.

Queensland Council for Civil Liberties Vice President (Terry O’Gorman) said a reading of the Explanatory Notes to the new organised crime laws introduced into Queensland Parliament earlier this week noted:

The (Wilson) Taskforce recommended that people should not be refused a licence solely on the basis that the person is alleged to be a participant in a criminal organisation. The Taskforce recommended that licences should only be refused on the basis that there is evidence specific to the individual which demonstrates that the individual is not a suitable person to hold a licence (emphasis added).(1)

Mr O’Gorman said that the Explanatory Notes go on to indicate that “…however the new serious and organised crime offences (and the related control orders) are intended to become relevant in the assessment of a person’s suitability for a (liquor and gun) licence.”(2)

Further, in relation to the Weapons Act, the Explanatory Notes clearly indicate that a ‘fit and proper person’ test will continue to exist and require (the police) to make a decision whether a person is appropriate to hold a licence (emphasis added).(3)

“Therefore the scare scenario promoted by news reports over the last two days that bikies will be running bars and readily carrying guns are simply incorrect when fact-checked against the actual provisions of the new Serious and Organised Crime Bill” Mr O’Gorman said.

Mr O’Gorman said that the Civil Liberties Council intends to regularly put out ‘fact-check’ media releases between now and up to when Parliament debates the new organised crime/bikie legislation to debunk wrong information about what the new laws actually say.

“It is important to remember that the Wilson Report on which most of the new organised crime/bikie laws is based noted that bikies were responsible for less than 1% of serious criminal offending”.(4)

Mr O’Gorman can be contacted during business hours on 07 3034 0000

(1) See recommendation 56 of Taskforce referred to at page 29 of the Explanatory Note
(2) See Explanatory Notes page 30
(3) See Explanatory Notes page 30
(4) See page 8 of the Wilson Taskforce which said “…OMCG Member crime rates before the 2013 suite (the Newman/Bleije VLAD Laws) were as a proportion of overall crime less than1% and, according to some figures, much lower”.

by Terry O'Gorman

Media Release by Terry O'Gorman: Palaszczuk Government's Proposed Bikie Laws

The retention of mandatory sentencing under the Palaszczuk Government’s proposed new bikie laws flies in the face of a major recommendation of its own Wilson Inquiry.

QCCL Vice President, Terry O’Gorman, said that the mandatory minimum sentence applicable to the Government’s proposal as outlined in the Wilson Inquiry terms of reference is “in the view of the (Wilson) Taskforce potentially excessive and disproportionate”(1).

Today’s newspaper leak on the new laws indicates that the bikie law review “will also retain additional mandatory penalties as an inducement for effective co-operation with police”, Mr O’Gorman said.

Mr O’Gorman said the Taskforce in addressing this issue “considered the risk (that such a mandatory sentencing regime) has the potential to attract and even encourage fictitious co-operation, that is circumstances in which persons facing very high (mandatory) sentences will fabricate information to attract the chance of some relief from them”(2).

Mr O’Gorman said that Taskforce addressed the concern that a person who is unable to “significantly co-operate not through an unwillingness to do so but because they simply do not know anything of importance has a strong incentive to provide false information in the hope that they can avoid a mandatory sentence”(3).

Mr O’Gorman also said that the proposed ban on bikies wearing their colours in public places is a law and order gimmick by the Premier having regard to the well established statistics outlined in the Wilson Report that bikies represent less than 1% of all crime in Queensland.

“The 2015 Queensland Byrne Report into organised crime set bikie crime statistics at 0.52%” (see Chapter 1 of Wilson Report).

“The Wilson Report notes that while bike gangs are seen by many to be the public face of organised crime the most reliable of statistics show bikies are charged with a small proportion of crime, no more than 0.52% of all offences committed across Queensland” (see Chapter 2 of the Report).

“This is a statistic supported by ex high ranking Queensland Police Officer come criminologist Professor Terry Goldsworthy” Mr O’Gorman said (see Chapter 1 of Wilson Report).

Mr O’Gorman also said that mandatory sentencing leads to injustice as the Court is prevented from giving proper consideration to the subjective circumstances regarding the offence and that a sentence must be tailored to fit the crime.

“Justice must be individualised and penalties fixed in advance by Parliament cannot achieve this” Mr O’Gorman said(4).

(1) See page 398 of the Wilson Report
(2) See page 225 of the Wilson Report
(3) See page 225 of the Wilson Report
(4) See page 232 of the Wilson Report.

by Terry O'Gorman

Media Release by Terry O'Gorman: Call for an Independent Prisons Inspectorate

MEDIA RELEASE BY TERRY O’GORMAN
VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Attorney-General and Juvenile Justice Minister Yvette D’Ath has denied that there is a culture of mistreating young offenders in Queensland such as in the Northern Territory but this denial would be more credible if there was an Independent Prisons Inspector.

Civil Liberties Council Vice-President Terry O’Gorman said that allegations of a youth detainee being stripped naked, handcuffed and left in isolation in a Townsville juvenile jail should have been independently investigated, and not internally reviewed within the Youth Justice Portfolio.

“In Western Australia, there has been an Independent Prisons Inspector for years based on the highly successful Independent Prisons Inspectorate model which has operated in the UK for decades”, Mr O’Gorman said.

Mr O’Gorman said that in Queensland there is an internal inspection and investigation system operating in relation to adult and juvenile prisons.

“The problem with this model is that it is the Department investigating itself. This is not a credible accountability model”, Mr O’Gorman said.

Mr O’Gorman said that the strength of the WA and UK models is that the Prisons Inspectorate is truly independent from the adult and juvenile prison bureaucracy, and reports to Parliament and not to the Prisons and Juvenile Justice Minister or the Prisons Department.

“Prisons are out of sight and out of mind in Queensland. The credibility of allegations of mistreatment are dependent on assurances from the Department and the Minister that they have been thoroughly investigated, as the Juvenile Justice Minister Yvette D’Ath said yesterday had occurred in relation to the Townsville juvenile jail assault allegations”, Mr O’Gorman said.

“Queensland prisons are significantly overcrowded. They are violent places but the public rarely gets to see or hear what is going on within the jail walls”, Mr O’Gorman said.

“If Queensland had an independent Inspector of Prisons (adult and juvenile) with power
to do without notice inspections 24 hours a day 7 days a week and with regular reports
to Parliament and not being able to be controlled or directed by the prisons bureaucracy
and the Minister, they would be safer and much more accountable and transparent
places”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

A Current Affair: Police Officer draws gun

On June 7 2016 partner Terry O'Gorman appeared on A Current Affair in relation to the controversy surrounding a senior constable using his gun to pull over speeding vehicles. The officer has been charged and suspended without pay pending the outcome of the investigation.

Mr O'Gorman noted the importance of body worn and dashboard cameras in cases like these. He also urged that the drawing of a gun by an officer should be reserved for the most serious of situations.

Mr O'Gorman believe the officer should be suspended with pay until his guilt or innocence is established by the investigation.

The full story can be watched via our Youtube channel here.

by Terry O'Gorman

Review for Clare's Law in Queensland

Terry O'Gorman, director of Robertson O'Gorman Solicitors, appeared on Seven News to discuss the recent decision by the Palaszczuk Government to consider the introduction of Clare's Law in Queensland.

Watch the story here.

by Terry O'Gorman

Outlawing effective political protest?

Former leader of the Australian Greens, Bob Brown has recently convincingly argued the history of Australian State Governments engaging in passing laws which outlaw effective political protest.

In an article in The Saturday Paper 19 March to 25 March 2016 Bob Brown charts the history of various State Government laws which severely restrict peaceful political protest.

He notes that back in 1982 Tasmanian Liberal Premier Robin Gray overturned centuries of common law inherited from Britain which protected citizens’ rights to enter Crown Law. Gray made it illegal to “lurk, loiter or secrete” in the riverside rainforest where the Hydro-Electric Commission was planning to build the Franklin Dam following the successful Franklin Dam protests that saw the building of the dam stopped after the High Court ruled that the Commonwealth foreign affairs’ powers to uphold World Heritage protection of the Tasmanian wilderness trumped the constitutional rights of the State Governments to manage lands and dam rivers as it pleased. Successive Federal Governments have handed over World Heritage matters to the states and Labor and Coalition governments alike have legislated to erode the right to protest.

Victoria’s Cain Labor Government introduced targeted penalties against protestors trying to save native forests and wildlife. These days you can be summarily fined if a Victorian forest officer recognises you in a group photograph taken in a logging zone.

The Western Australian Government has legislated draconian anti-protest laws to assist mining.

In New South Wales the government has adopted harsher anti-protest laws at the same time as it cuts penalties for illegal behaviour by mining and coal senior gas extraction companies.

The private sector has complemented these government moves. In 2005 the biggest logging company in Australia, Gunns issued a SLAPP writ – that is a Strategic Litigation Against Public Participation – against 20 opponents of its proposed Tamar Valley pulp mill.

In his book “Slapping on the Writs” Melbourne barrister Brian Walters cites an American definition of SLAPP as “a civil complaint or counterclaim for money damages filed against private citizens or citizens’ groups who are targeted because of their communications to a government body or official or to voters in a community on an issue of public interest or concern”.

Brown notes that in Tasmania the Hodgman Government passed legislation with Labor support in 2014 that threatens peaceful protestors with an initial $10,000 fine and with four years in jail for later repeat on-site protests.

Brown notes that Hodgman’s Government assured the electorate that his legislation was aimed at “radical protestors” and not “mums and dads”.

Brown notes that the first people arrested under this legislation were a grandfather and mother of two, Jessica Hoyt now a neurosurgery nurse in Hobart.

Subsequent to her arrest Brown walked into an area to observe a bulldozer flattening forests including ferns and Brown was arrested and charged under Hodgman’s law which defines a protestor as a person engaged in activity “for the purposes of promoting awareness of or support for an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue”. Brown is taking the law under which he was arrested to the High Court citing an implied provision in the Commonwealth Constitution protecting freedom of communication on government and political matters.

Those of us in Queensland who saw the so-called right to march laws passed in 1977 by the Bjelke-Petersen Government have good cause to be worried about a trend that causes peaceful political protest in at least three of the Australian states currently being severely criminalised.

Terry O’Gorman

13 April 2016

by Terry O'Gorman

Wilson Report on VLAD Legislation

The Wilson Report (chaired by ex-Supreme Court Judge Alan Wilson) was charged with reviewing the 2013 anti-bikie (VLAD) legislation.

The Wilson Report said that it saw its job as one which also required the consideration of the VLAD laws in the context of framing effective anti-organised crime legislation for Queensland.

While the Report recommended the repeal of the greater part of the 2013 VLAD laws it has gone a further step and developed a renewed Organised Crime Framework which it describes as a package of laws which preserves some parts of the 2013 laws but overcomes what the Taskforce concluded were excessive, disproportionate or an unnecessary element of it. The Report notes that its recommendations are better suited for combatting not just OMCGs but organised crime in all its forms.

The Terms of Reference asked the Taskforce to consider whether the provisions of the 2013 legislation were effectively facilitating the successful investigation, prevention and deterrence of organised crime but the Terms of Reference also asked the Taskforce to develop a new ‘serious organised crime’ offence with mandatory penalties.

This particular term of reference of the Taskforce dealing with ongoing mandatory penalties received very little publicity both in the Taskforce set up and during the course of the Taskforce’s work.

Chapter 1 notes that there are real questions about the nature and extent of OMCG crime in Queensland noting that one commentator argued it is as low as 0.17% of all crime and the 2015 Byrne Report on organised crime set it at 0.52% (criminologist Terry Goldsworthy said in respect of the Byrne Report that bikies actually commit far less than 0.52% of crime).

Terry O’Gorman

12 April 2016

by Terry O'Gorman

Media Releases by Terry O'Gorma: Anti-Bikie Legislation

As Vice-President of the Queensland Council for Civil Liberties, Terry O'Gorman recently released the following two media comments.

30 March 2016

Queensland Police Minister Bill Byrne should direct Police Commissioner Ian Stewart to stop a now overt police political campaign to prevent any changes to the so-called bikie laws.

Queensland Council for Civil Liberties Vice President Terry O’Gorman said this today when commenting on reports in today’s Courier Mail by Superintendent Jim Keogh that three high profile gangs were waiting to reclaim their patch on the Gold Coast.

“For months there has been a ‘just below the surface’ police media campaign against any change to the so-called VLAD laws”, Mr O’Gorman said.

“Through selected favoured journalists Queensland Police have been anonymously campaigning against any change to the VLAD laws since the current Labor government came to power”, Mr O’Gorman said.

“Now, with today’s Courier Mail article, it appears that the police campaign has gone ‘directly overt’, and this must be with the full connivance and backing of the Queensland Police Commissioner, Ian Stewart”, Mr O’Gorman said.

“Mr Stewart should have learnt from the Joh Bjelke-Petersen era that police have no role in arguing for or against particular pieces of legislation, particularly contentious legislation”, Mr O’Gorman said.

Mr O’Gorman called on Police Minister Bill Byrne to immediately direct the Police Commissioner to stop Senior Executive Service police from publicly campaigning against any change to the VLAD laws.

“This is particularly important in the light of the report by ex Supreme Court Judge Wilson which is to be handed to the government tomorrow”, Mr O’Gorman said.

Mr O’Gorman said that the decision as to what was to happen to the VLAD laws was a decision for elected politicians, not unelected high ranking police mounting their own now overt political campaign.

6 April 2016

The Civil Liberties Council today again called on Police Commissioner Ian Stewart to direct Senior Police to stop their partisan political media campaign on bikies.

Civil Liberties Council Vice-President Terry O’Gorman said this today when referring to an article in today’s Courier Mail “State will pay dearly if gangs roll again”.

“For the last number of months, Senior Police have been regularly backgrounding selected journalists in their campaign against any changes to the VLAD laws. Last week this campaign became overt with Superintendent Jim Keogh, a former Gold Coast Senior Police Officer, being permitted by Commissioner Ian Stewart to make public comments directly aligning the Police Service with the LNP policy position in respect of bikies”, Mr O’Gorman said.

Mr O’Gorman said that Police, from the Police Commissioner down, as public servants should maintain neutrality in the current controversial politics of the VLAD laws.

“The Council calls on the Police Commissioner to immediately issue directives to Senior Police that they are not to participate in the ongoing political debate concerning the reform of the bikie laws”, Mr O’Gorman said.

The ‘Senior Police’ constantly quoted over the last 12 months in relation to the bikie laws have been consistently supporting and advocating the LNP position which is a direct contradiction of the proper standards in Queensland policing as outlined in the landmark Fitzgerald Report.

Mr O’Gorman can be contacted during business hours on 07 3034 0000

by Terry O'Gorman

The Freedom of Speech and Wicked Campervan Slogans

Terry O'Gorman featured in a recent interview on New Zealand radio show Newstalk ZB regarding the controversial Wicked Campervan Slogans.

Listen to the interview here.

by Terry O'Gorman

Royal Commission: Undermining the Privilege against Self-Incrimination

In January 2013, six Commissioners were appointed by the Australian Government to investigate instances of child sexual abuse while under the care of an institution. Since then, the Royal Commission into Institutional Responses to Child Sexual Abuse has received tens of thousands of phone calls, letters and emails. The Commission and its reports have been widely publicised over the last three years.

The Commission’s job is to ultimately make recommendations on how to improve laws and change policy. In the process of doing this, the Commission has encouraged thousands of people to come forward with their own experiences. In particular, the Commission has referred 857 matters to authorities – including the police.

Although the work of the Commission is much-needed, there are several difficulties with prosecuting and defending cases that have had their facts blurred by lengthy delay. Evidence changes or becomes completely unavailable, whether it’s the loss of documents or the passing of a relevant witness. Memories change and the accuracy of any evidence ought to be scrutinised.

Furthermore, commissions of inquiry such as this have a number of coercive powers which abrogate the fundamental and long-standing right against self-incrimination. It is generally argued that such a privilege impedes upon the prosecution’s ability to collect evidence in cases where such evidence is unavailable. However, the privilege against self-incrimination has been described by the Queensland Law Reform Commission as a cardinal principle of our system of justice, a bulwark of liberty, fundamental to a civilised legal system and an integral part of international human rights law. For criminal trials, the starting point is the presumption of innocence and secondly, that the Crown bears the onus of proof. It is concerning that these sorts of commissions undermine these fundamental aspects of our law.

There are many reasons for upholding the privilege against self-incrimination. One reason that will undoubtedly affect the validity of any conclusions drawn by a commission is the reliability of evidence that has been obtained coercively. According to the Australian Law Reform Commission, the quality of evidence is diminished when the privilege against self-incrimination is abrogated. A good lawyer will always warn about the risks of perjury proceedings if a client is summoned to appear and give evidence. Notwithstanding the extent to which a lawyer stresses this risk, a client may still prefer to lie than to expose himself to criminal prosecution. This is especially the case where the subject matter of the inquiry is a serious crime. Where lies are elicited under compulsion, the credibility of the trial system may be compromised by the increased existence of untruthful evidence.

Robertson O’Gorman Solicitors has played a vital role in defending the rights and interests of those that have been prosecuted or investigated as a result of the Royal Commission.

If you are at all concerned, you may seek legal advice from one of our experienced solicitors. We represent clients at all commissions, whether it’s the Crime and Corruption Commission, the Australian Crime Commission or any general commissions of inquiry.

by Terry O'Gorman

Terror and Tertiary Education

On November 19 Terry O’Gorman delivered the National Tertiary Education Union’s 2015 Lecture.

Just days after terror attacks unfolded in Paris, Mr O’Gorman addressed an audience of academics and university representatives on the advancement and preservation of civil liberties in the age of terror.

As President of the Australian Council of Civil Liberties Mr O’Gorman placed particular emphasis on the risk that excessive measures and in particular counter-terrorism laws can pose to our basic rights and liberties.

The Lecture acknowledged the work of Australian universities since 9/11 in developing innovative and engaging curriculum. Mr O’Gorman saw the role of the university as far wider than research and teaching, imploring that institutions encourage vigorous debate of all opinions, even the most unpopular.

A video of the speech and a full transcript is available here.

NTEU ANNUAL LECTURE 2015

With the world still in the wake of what unfolded on the streets of Paris last weekend it is appropriate that tonight’s discussion focuses on the role of universities in protecting civil liberties in an environment increasingly defined by terrorism and greatly heightened security fears within Australia’s borders.

As someone who was once a student, although in decades far gone, and as someone who has, since graduating, involved much of my career in defending basic liberties and rights it is a pleasure to have been invited to contribute tonight to this dialogue. It is a discussion that combines issues I am not only most passionate about, but also most concerned about. Our greatest hurdle in the coming decade is in dealing in a balance manner with the often conflated issue of terrorism and Islam and Australia’s Muslim population.

What we have all witnessed in Paris and even on Sydney streets is challenging and confronting. Terrorism strikes at the core of our most fundamental human emotions and values. But what we will learn in the coming months, and longer, is that our decisions in response both as individuals and as a nation, are just as crucial. Just as terrorism is the enemy of many of our human rights, so too can our responses to terrorism threaten our civil liberties and any chance of maintaining social cohesion and progress. Environments of terror and fear, much like the one we are living in, often elicit instant responses where society forgets to protect the very rights being threatened by the attacks.

This is where you as educators in Australian’s tertiary institutions have an important role. Too often our politicians, community leaders and commentators foster an atmosphere of panic, creating greater divide and marginalisation in our communities than ever before. We have seen already within the space of days vitriol against those wearing burqas in the street and further heightened concern about our refugee intake.

As educators of the next generation your role in avoiding narrow minded commentary of these attacks, their causes and their perpetrators is important. Universities should be spaces where hysteria makes way for discussion and debate however unpopular.

In the wake of 9/11 and the 2005 London bombings academic publication on areas of terrorism and security increased by around 300 precent. A majority of our Australian universities now offer terrorism courses at both and undergraduate and postgraduate level. Many institutions also have specialised research centres such as UNSW’s Gilbert and Tobin Centre and teaching staff are increasingly specialised in the area. The study of terrorism specifically but also broader areas of peace and conflict and political science is well developed in Australian universities.

The creation of curriculums and dissemination of research is key and is something I would credit Australian universities with excelling at. Allowing debate is also crucial. Actively encouraging debate is what universities need to promote.

Looking back to the 60s and 70s we saw both staff and students writing about, debating and protesting the Vietnam War. The phenomenon of ‘teach ins’ became commonplace on most campuses with professors and students joining to discuss aspects of US and Australian involvement in that war. That legitimate dialogue was unsurprisingly disregarded for a long time in the wider community. Entangled in the perception of these student protestors was the simplistic approach taken by many who should have known better including the then Victorian Education Minister as to who described protestors as ‘uncouth and unwashed’.

But Vietnam in hindsight is a strong reminder that so often society has regretted not giving credence to the legitimate concerns raised on campuses. It is crucial we do not repeat the mistakes of the past.

And yet again after 9/11 when we needed debate more than ever before we saw universities struggle to conceptualise their role and their place in a heightened security environment. Faculties in the US in particular began to self-censor. Institutions such as the University of Colorado were condemned for anti-American teaching which was said to disrespect those who had lost lives in the Twin Towers and the later loss of soldiers’ lives in Iraq and Afghanistan.

There is a wealth of academic study now admitting US teaching has become far more militarised since 9/11. On a practical level curriculums are now more rigid and surveillance on campuses has arguably become excessive. On a broader level there is also concern for academic independence and the university’s autonomy. Often the only discourses being disseminated follow government policy and agenda leaving little room for constructive dissent.

Now with decades of hindsight there is no shortage of pedagogical commentary dedicated to how the Vietnam War should be taught. Schools and universities are still trying to find the perfect curriculum that balances discussion of US involvement and motives, continues to respect of the service of Australian soldiers and still critically discusses the climate of colonisation that motivated the Vietcong.

Universities are now well aware of the need for this neutrality in presenting Vietcong and US perspectives which has been a positive move. However it is arguably far too reactive. Vietnam therefore teaches us another lesson. University courses need to be fluid to allow neutral and varied discussion of current events. We cannot wait for the war on terror to finish to start structuring courses around the grievances of all parties involved. Curriculum regarding the Middle East needs to be proactively neutral and balanced.

It is only now with 14 years hindsight that the new Vice-Chancellor of Oxford has been able to, though still bravely, claim the US overacted to 9/11. At a conference on tertiary education in London, Vice Chancellor Richardson, herself a highly commended terrorism scholar, warned radical ideas needed to be canvassed, engaged with and challenged within lecture halls. She felt faculties needed to defend their right to do so fiercely.

Richardson noted the biggest risk the US would face was seeing the world in ‘black and white terms.’ The role of the university was to ask the hard questions the rest of society was avoiding, to be critical of Western responses and avoid the ‘over-simplified’ worldview that the terrorists themselves have often succumbed to.

Australian universities need to allow for the most unpopular of discussions. Lecturers must strike a balance between condemning attacks and also questioning our role. But isn’t it time we openly discuss the argument that the West’s invasion of Iraq and our role in the Middle East broadly over the past decade, may have made the ground more fertile for the growth of ISIL and its counterparts?

The uncertain part of studying, researching and teaching in these fields is that terrorism remains undefined. It is still a complex and morphing notion. With that in mind it is crucial universities allow definitions and therefore the field as a whole to grow in time and for students to think critically

Courses focusing on the Middle East need to take a varied approach, giving time to the complex forces and factors at play in these regions. But those more general terrorism courses also need not conflate the definition of terrorism and Islam. As a society we have already done this.

2011 saw the extreme right wing massacre in Norway yet this event does not feature significantly in terrorism texts or syllabus.

Just this year we saw the politically motivated Charleston massacre. An event that is clearly domestic terrorism but will remain isolated to discussions of gun violence not terrorism.

It is clear that many in Australian society have a tendency to conflate the strategy and act of terrorism with the ideology and religion of Islam alone. This tendency is at risk of becoming embedded habit after this week.

The academic papers being generated out of Australian Universities are making headway. The work of the Gilbert and Tobin Centre consistently reminds us to be cautious of ever expanding anti-terror and security laws. After having spent much of my career warning of excessive police powers and the recent growing reach of Australia Border Force, this expertise is welcomed.

Just this past week we have seen Deakin University announce a new national research centre into radicalisation and extremism headed by Professor Barton and ANU’s Dr Jones. Similarly, two academics from the University of Queensland have just yesterday received a significant two year research grant to partner with institutions in Berlin on the threat the Islamic State poses to ‘open societies.’

It is evident that in light of recent attacks there will not only be the audience for but indeed funding for greater university commentary on terrorism. It is important universities use this to research and political capital to report on all accepts of the Middle Eastern environment. The goal can not only to be preventing terrorist attacks here and abroad but to understanding and addressing the perceived grievances of those using these tactics.

Of course it would be naïve to ignore the arguments from critics of the very debate I am calling to occur on campuses. There are those that believe universities and the attainment of a tertiary qualification in itself fosters extremism.

With Australia having one of the largest populations of international students, with enrolments from Asia and the Middle East in particular rapidly rising, this argument is not only constant but also extremely dangerous.

The media coverage of young Australians travelling overseas to fight for ISIL is shallow and sensationalist. Reports about Adil Fayaz alleged that the young man was radicalised while studying his MBA right here in Brisbane.

Fayaz aged 26 is believed to have joined the civil war in Syria last year. Originally born in Kashmir reports focused heavily on the time he spent studying in Australia between 2009 and 2012.

No attempt was made to prove a causal link, rather resting on the assertion that our universities are breeding radical Jihadists. Similarly, the first facts we heard about the Tunisian beach attacks were that the culprit was a young man – with a university degree.

Research clearly disputes any clear correlation between education and terrorist tendencies. People will cause atrocity whether educated or not and our best tool in combatting and responding to those acts is indeed education itself.

On April 16 the Daily Telegraph published a full list of young Australians fighting in Syria and Iraq. The article warned that ‘extremist groups are targeting young Australians in their bedrooms and lounge rooms…urging them to carry-out home-grown terror attacks.’

It cannot be maintained that universities or our Muslim communities are breeding terrorists. Nor is the Telegraph’s statement that ISIL are somehow brainwashing students at home in their lounge room convincing.

What is true is that a number of young Australians are questioning the West, and indeed Australia’s role and actions. Just as young Australians questioned the US and were concerned for Vietnam’s struggle with continual colonisation. It is a reality that young Australia’s are taking an interest and some are indeed sympathising with groups like ISIL despite having spent their entire youth surrounded by Australian values.

What the telegraph and other popular media outlets and politicians fail to consider is why this is the case. For ISIL to be having any recruitment success there is evidently an environment where young minds are open to being persuaded.

Universities should be doing what academics like Deakin University’s counter terror expert Greg Barton has been making valiant efforts to do - refocusing media hysteria about Paris back into considerations of our schools and communities.

There has been great attention given to recent proposals that primary schools are the front line in stopping radicalisation and recruitment of young Australians. Barton has been working to champion that not only does attention need to be paid to curbing radicalisation of or Australian youth but also to build what he calls a stronger ‘counter narrative’ about Muslim Youth. In his view ‘anti radicalisation measures are not where they need to be.’

When most have been focusing on discussion of increased security and strong military responses in the past week, Barton was quick to note just this morning that ‘western authorities have largely dropped the ball on community engagement.’

In line with the recent work and comments of Professor Barton I would propose universities have a large role in looking at those early signs of radicalisation. Australians need to understand that the motive to join or at least sympathise with groups like ISIS is often a feeling that their grievances with western policy or their questioning of US and Australian involvement are ignored.

Our policies aimed at reducing home grown terror and radicalisation cannot be guided by political catch-crys and fear. Stopping young Australians suspected of sympathising with ISIS from travelling to those areas is necessary but understanding and addressing the motivation is critical. Universities need to consider the points raised by these Australians and give them a platform for discussion on campuses and within courses in order to minimise the risk that students turn their disenchantment with Australia into something more extreme and radical.

Fears have also been raised that engaging in these debates makes universities targets. Throughout history universities have been the chosen stage for horrific attempts to quell debate and learning. Indeed in the Middle East itself universities are not the havens of safety we enjoy here in Australia were students attend classes without the fear of attack. Just this week, due to the Paris coverage, information has come to light about the April siege on a Kenyan University.

To temper lively debate in fear of attack is to leave universities and therefore society defenceless against challenges posed by terrorism itself. Safe universities are paramount, but just as Parisian journalists vowed to continue writing in the wake of the Charlie Hebdo territorial atrocity, faculties must continue to debate and discuss the complex issues of what motivates young Australians to want to go to ISIS held territories to fight.

Universities must also continue to support (but not uncritically) the dialogue of the Australian Muslim community, its leaders, academics and above all its students.

Asari Nomani, an Islamic author wrote in the London Times recently after a speech where she hoped to argue for a progressive, feminist interpretation of Islam was cancelled by Duke University for fear of excessive protest.

Nomani however made the pertinent point that the cancellation of her speech was akin to the controversy surrounding the cancelled screening of American Sniper at Michigan University.

The ban came after a petition suggested the movie condoned anti-Muslim sentiments. The University was quick to reverse their decision noting ‘the initial decision to cancel the movie was not consistent with the high value the University places on freedom of expression and our respect for the right of students to make their own choices in such matters.’

The United Kingdom is no exception. Warick University reportedly cancelled a speech by Maryam Namazie, an Iranian born human rights campaigner and vocal critic of sharia law, due to fears her comments could be ‘inflammatory.’

As noted by Nomani regardless of whether a university event champions new Muslim narratives, anti or pro American views, the importance is that the students can engage with the material and make informed choices. She called for campuses to allow ‘critical conversations, especially if they make people feel uncomfortable.’

Earlier this year the University of Sydney cancelled an Islamic Awareness Week event where noted radical Uthman Badar was due to speak. The University of Western Australia was quick to follow the cancellation.

These choices coincided with the controversy that ensued surrounding Zaky Mallah’s appearance on TV program Q and A after allegedly pleading guilty to threatening ASIO officers and being known for his violent tweets.

It is true that the cancellation of Badar’s appearances is an extreme example. Vice Chancellors were concerned his alleged justification of honour killings and other radical ideology were too disrespectful. Ideology were too disrespectful towards women. They might have been but the views should still have been allowed to be expressed.

But in light of the consequent discussions about censoring the ABC’s Q and A and Australian media generally it is more important than ever that Australian universities promote, without endorsing, contrarian views particularly on the often wrongly conflated issue of terrorism and the Islam religion.

But it is a balance hard to find for educational institutions. Top universities such as Yale are Missouri are currently struggling in the grips of controversy surrounding racial hate speech. The Washington Post has acknowledged that ‘universities are struggling to strike a balance as they seek to foster a climate that is at once tolerant of racial and cultural differences but also unafraid of a robust clash of viewpoints.’

In a statement on the issue President of Yale, Peter Salovey noted ‘we renew our commitment to this freedom not as a special exception for unpopular or controversial ideas but for them especially.”

Just as universities must not circulate only the populist mainstream agenda so too must they be careful to not selectively give voice to only those that are deemed publicly popular. It is a risk that universities take excessive caution in an age where most student articles and campus events come with ‘trigger warnings.’

I thought the President of Wesleyan College in the US made an important distinction to keep in mind when student safety is often a justification for limiting debates, protests and events;

‘…the institution has to protect people against attack that causes harm, but it should never protect people against ideas that are difficult to digest.’

If we cannot have these discussions and presentations on university campuses where can we have them? If anything we should be aiming for greater grass root integration with Muslim academics and leaders into classrooms on a more constant basis.

Dr Ali White, specialist in Middle Eastern Studies and an academic at the University of Western Sydney, the university with the highest enrolment of Muslim Australians warned in the wake of 9/11 and the Bali bombings of the demonization of many of his young students.

The insights that educators such as Dr White and his personal experience and expertise can provide into the experiences of Young Muslim students are crucial. In his view the harmful dichotomy of ‘us and them’ in relation to Sydney’s Muslim population emerged as early as 1998 when Bobb Carr denounced Lebanese gangs. Subsequent media and police frenzy has since lead to a strongly embedded stereotype of ‘Middle Eastern Youth Gangs.’ White warns of the internal identity war this can cause amongst young Muslims who abandon attempts to fit in with their Australian classmates and unconsciously isolate themselves further. He calls this the vicious circle whereby marginalisation and stigma by the most powerful sectors of Australian society push these youth to then deny their Australianness and thereby opening them to the accusation they are not participating in our society.

To refer again to Professor Barton’s expertise, it will be important to redefine a new Muslim narrative in Australia. In particular Barton noted at Monash University’s recent Counter Extremism Summit that relying on Muslim leaders is not enough. This is pertinent given current criticism that some Muslim leaders have been too slow or soft in their responses to Paris. Barton calls for us to engage with young leaders and new organisations in these communities rather than solely with established groups where collaboration is already strong.

It is true that universities may have networks and systems in place to support and engage marginalised students. Outreach to key leaders in the Muslim community does seem to be something faculties like those at UNSW have once again excelled at.

The issue to remember however is that students to be most concerned about, be they Muslim students feeling marginalised by the current environment or Australian born students feeling disenfranchised from Western values. They are the ones the current approaches have not and won’t engage with.

Perhaps one point that all can agree on is that there is no one solution. Barton calls therefore for multiple approaches at multiple levels. Australian university educators agree universities are one of those key levels.

Drawing from his personal experience in teaching members of marginalised Muslim communities at UNSW, Dr White called for universities to decide whether they are ‘capable of, or willing to play a role in helping reverse the current of dangerous stigmatisation of Muslim Australian Youth.’

As I noted at the outset, Australian universities are more than capable with the curriculum, expertise and research frameworks now well established.

The past decade and a half since 9/11 has seen the emergence of a previously niche and unfunded field of study and research. We have leading academics here in Australia who are already working tirelessly to contribute to public debate that without them will remain uninformed and sensationalist.

Universities are often the first to warn of hysteria, calling for caution instead of knee jerk responses such as excessive counter terrorism measures which risk so many of our civil liberties.

We also do have leading academics who are already warning about excessive counter terrorism measures, the risk of home grown radicalisation and the need to reintegrate our Muslim youth. Tertiary education in Australia must continue to be a key stakeholder in the conversation going forward particularly about home grown terrorism and radicalisation especially to widen and balance the often simplistic public debate in this area.

There is no doubt universities are capable of reversing the stigma and marginalisation I have spoken about. I am also confident Australian universities are willing to. It is time that we realise we are now in the 15th year of this so called war on terror. There is also inevitably at least a decade or more to go before it runs its course. We cannot be having the one-sided discussions we had about Vietnam 10 years from now in relation to terrorism issues. It is true that hindsight is often of great aid and benefit in these situations but we simply cannot rely on it.

The next step for our universities is to see how far they can succeed in teaching students and broader Australian society, through a balanced, neutral and proactive approach that there is indeed a grey that exists between the black and white worldview that Professor Richardson of Oxford warned so strongly against.

So, universities of Australia you are doing it well. But you have got some challenges ahead of you.

Terry O’Gorman

19 November 2015

by Terry O'Gorman

New Chief Justice

On Tuesday the 8th of September Queensland's new Chief Justice was announced. In his role as Vice President of the Queensland Council for Civial Liberties, Terry O'Gorman issued the following media release

MEDIA RELEASE BY TERRY O’GORMAN

VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council today congratulated the Premier Annastacia Palaszczuk and Attorney‑General Yvette D’Ath on restoring integrity to the process of appointing the Chief Justice.

Whilst welcoming the appropriateness of the appointment itself, the Civil Liberties Council particularly applauds a return to observing the proper processes, conventions and protocols which were so trashed by former Premier Newman and former Attorney‑General Jarrod Bleijie in the botched appointment of Justice Carmody.

“The apparent careful deliberation that accompanied the process leading to yesterday’s announcement of Justice Holmes as the new Chief Justice stands in stark contrast to the cowboy approach taken by the former LNP Government”, Mr O’Gorman said.

Mr O’Gorman also welcomed the balanced and professional approach taken by the Shadow Attorney‑General Ian Walker who graciously acknowledged the propriety of Justice Holmes’ appointment.

“Hopefully Mr Walker’s balanced and judicious approach to the appointment of Justice Holmes as Chief Justice marks an acknowledgement by the LNP Opposition that it got Justice Carmody’s appointment so woefully wrong”, Mr O’Gorman said.

Mr O’Gorman said that despite the proper conventions and protocols being followed by the Palaszczuk Government in the appointment of the new Chief Justice, the case still remains strong for the establishment of a Judicial Commission to deal with complaints against judicial officers, be they Magistrates, District Court Judges or Supreme Court Judges.

by Terry O'Gorman

Sergeant Flori: Transparency Concerns

In the wake of increasing publicity regarding the charges against Sergeant Rick Flori, Terry O’Gorman, Director at Robertson O’Gorman Solicitors and Vice-president of the Queensland Council for Civil Liberties, has written to both the Commissioner of Police and the Crime and Corruption Commission (CCC).

Sergeant Rick Flori is facing criminal charges of misconduct after allegedly leaking a video of Gold Coast Police bashing a person in their custody. According to the information currently available it seems no investigation has been commenced in relation to the officers involved in the initial bashing incident.

Mr O’Gorman has implored Mr Ian Stewart, Queensland Police Commissioner, to seek advice from an independent QC as to whether prosecution of Sergeant Flori should continue.

Mr O’Gorman has also raised concerns with Ms Ann Gummow, Acting Chairperson of the CCC, regarding the lack of publically available information. Issues include confidential settlements of civil actions and the fact this ‘police investigating police’ situation has led to no charges against those featured in the leaked video.

Extracts of both letters can be found below;

13 August 2015

Ms Ann Gummow

Acting Chairperson

Crime and Corruption Commission

Dear Ms Gummow

RE: SERGEANT RICK FLORI

We write to make a public interest complaint in relation to the abovenamed.

On information currently available, Sergeant Flori has been charged with a criminal offence for allegedly leaking a video of Gold Coast Police bashing a person in Police custody.

The publicly available information does not indicate whether the CCC has had any input into the investigation of the Police bashing whether by way of actual participation in the investigation or by way of an overview of the concluded investigation.

There is growing public concern about the state of the Queensland Police complaints process as exemplified in this case where Police are caught on video in a Police Station carpark where they know a video is operating and where serious and gratuitous violence is inflicted on a person in Police custody and particularly inside a vehicle where that person is unable to defend himself.

Publicly available records would indicate that the individual concerned has sued the QPS and a confidential settlement has been reached.

This reflects an unfortunate growing trend in relation to the Police complaints process in Queensland where Police assaults and other misconduct growingly result in civil actions which are confidentially settled. The outcome is that the Queensland public is denied information as to the nature and quantum of the settlements.

I enclose for your information a submission sent to the Police Commissioner Mr Ian Stewart today arguing that an independent QC should review the decision to prosecute Sergeant Flori.

This Council respectfully submits to you by way of a public interest complaint that the CCC should exercise its statutory jurisdiction and completely review and publish your report as to the following:

Was any Police investigation actually underway at the time that Sergeant Flori allegedly leaked the video to the media;

Why did the ‘Police investigating Police’ scenario in this matter result in none of the Police who are filmed assaulting the individual concerned being criminally charged; and

What were the terms of the confidential civil action and particularly, what was the dollar value of the payment made to the victim in this matter at the time of the settlement of his civil suit.

It would be appreciated if you could respond as soon as possible to this Submission particularly the core aspect of the Council’s contention that the entirety of the Police investigation of this matter should be reviewed particularly as to its publicly perceived inadequacies and that a public report should issue in that regard.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT

--------------------------------------------------------------------------------

13 August 2015

Mr Ian Stewart

Commissioner of Police

Queensland Police Service

Dear Commissioner

RE: SERGEANT FLORI

I refer to recent publicity in relation to the abovenamed.

This Council notes that Sergeant Flori has been charged with an offence under the Criminal Code arising from an allegation that he leaked a video of Gold Coast Police bashing a person in Police custody.

On the information currently publicly available, the Prosecution of Sergeant Flori seen publicly is at best misconceived and, arguably, a miscarriage of justice.

On the facts currently in the public arena, Sergeant Flori was charged after a ‘Police investigating Police’ scenario against a background where it was at the time asserted that no investigation had been instituted by the Police Service in respect of the Police bashing until the media published the relevant video.

You have recently been quoted as indicating that you intend to get the advice of an independent QC before a decision is made whether to prosecute the parliamentarian, Billy Gordon.

In the Flori scenario of Police investigating Police it is even more pressing and appropriate that the advice of an independent QC be obtained as to whether the Prosecution against Sergeant Flori should be continued.

Information publicly available would indicate that the DPP was not consulted by the QPS prior to the charge against Sergeant Flori being instituted. The public is, therefore, witnessing a scenario on the currently available information that Sergeant Flori has been charged against a background where Police Officers depicted in the video wantonly and viciously bashing a person arrested for a public nuisance offence have not been charged but where an apparent whistleblower has.

It is respectfully submitted to you that the independent QC whom we argue should review the matter in the light of the criteria in the published Queensland Prosecution Policy should be a QC who is not regularly briefed by the QPS and, desirably, a QC who has not been briefed at all by the QPS.

This Council awaits your advices in respect of this submission.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O’GORMAN

VICE-PRESIDENT

by Terry O'Gorman

Anti-Bikie Legislation - Update

The following seminar paper is extracted from the attached material below. See the full article here.

LEGALWISE CRIMINAL LAW CONFERENCE

UPDATE ON THE ANTI-BIKIE LEGISLATION BY TERRY O’GORMAN

1. On Tuesday 15 October 2013 without any consultation outside the circles of law enforcement the Attorney-General at 2.30 pm introduced the Vicious Lawless Association Disestablishment Bill. The Bill created a new Act that will, according to the Attorney-General’s introduction speech:

Disestablish associations that encourage, foster or support persons who commit serious offences.

2. The Attorney-General said this aim would be achieved by:

Imposing significant terms of imprisonment for vicious lawless associates who commit declared offences.
Removing the possibility of parole for vicious lawless associates serving terms of imprisonment except in limited circumstances.
Encouraging vicious lawless associates to cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity.^[1]

3. The Attorney-General said that the new Act will apply to people who participate in the affairs of associations and who commit declared offences for the purpose of or in the course of participating in the affairs of the relevant association. The intention is to characterise persons as vicious lawless associates who belong to associations which encourage, support or foster the commission of offences and who are, therefore, persons who commit offences as part of their membership activities.

4. The Attorney-General said that a vicious lawless associate will be sentenced for the declared offence but will serve a further 15 years mandatory imprisonment, cumulative to any imprisonment imposed for the declared offence. If the vicious lawless associate was at the time of the commission of the offence an office-bearer of the relevant association, they will receive a further 10 years imprisonment, cumulative to the 15 years and the original term of imprisonment.^[2]

5. The Attorney-General went on to say that the Bill makes clear that the extra punishment is mandatory and cannot be reduced by the sentencing Court. Further, parole will not apply to the extra punishment unless the associate cooperates with the police and other law enforcement agencies. This lever to induce informants to cooperate is a very important part of the punishment regime. An offender will only be able to mitigate (a) sentence via Section 13A of the Penalties and Sentences Act where the Police Commissioner is satisfied that the cooperation will be of significant use in a proceeding about a declared offence. This will ensure that only effective cooperation is rewarded.^[3]

6. A review of the provisions contained in the Vicious Lawless Association Disestablishment Act will occur three years after commencement.^[4]

7. The provisions of the VLAD Act are available in the Organised Crime, Corruption and Misconduct tab of Volume 3 of Carters. It is a quite short Act of only 11 sections.

8. The Act provides that a person is a vicious lawless associate if the person -

(a) commits a declared offence; and

(b) at the time the offence is committed or during the course of the commission of the offence is a participant in the affairs of an association; and

(c) did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association.

9. Section 5(2) provides that a person is not a vicious lawless associate if the person proves that the relevant association is not an association that has, as one of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences.

In addition to the Vicious Lawless Associates Disruption Act, the paper addresses the Tattoo Parlours Act and both Criminal Law (Criminal Organisation Disruption) Amendment Acts.

by Terry O'Gorman

Bikies in solitary confinement

In a case decided by Justice Applegarth of the Queensland Supreme Court on 12 December 2013 there was an extensive review of the solitary confinement conditions in which bikies are now being placed in Queensland prisons.

Justice Applegarth noted that the conditions under which a person will serve a term of imprisonment are relevant matters to be taken into account - at least where those conditions are shown to be different from, and more onerous than, the conditions undergone by other prisoners.

In reviewing the international literature in relation to solitary confinement, Justice Applegarth noted that the prospect that a prisoner will serve some of the period in solitary confinement will not always justify some reduction in sentence. Solitary confinement does not mitigate when it is caused by the offender, for example by attempting to escape.

Justice Applegarth referred to an affidavit by a high ranking official of Queensland Corrective Services in this case which notes that a person who is identified as a bikie is subject to the following conditions in jail and that all identified bikie prisoners whether remand, sentenced or protection will be subject to the following Restricted Management Regime:

No visits from other bikie members or affiliates (this also includes family members).
Bikies will only be entitled to a one-hour non-contact personal visit with family members per week.
Bikie prisoner phone calls are restricted to seven personal phone calls per week of six minutes duration.

Justice Applegarth noted that the adverse health effects of solitary confinement have been well established and that international instruments view it as “an extreme prison practice which should only be used as a last resort and then for only short periods of time”.

The judgment further noted that more recent studies have reaffirmed that solitary confinement has a profound, adverse impact on the health of prisoners and that research indicates that many who have been subject to solitary confinement are at risk of long term psychological damage.

The case notes that prisoners who are subject to solitary confinement for longer than ten days have demonstrated some negative health effects and that the probability of being admitted (for treatment) for psychiatric reasons was about 20 times as high as for a person remanded in non-solitary confinement for the same period of time.

Reputable bodies advocate that the use of solitary confinement should be reserved for extreme cases and for as short a time as possible.

The judgment refers to a 2007 Statement on the Use and Effects of Solitary Confinement adopted in December 2007 at the International Psychological Trauma Symposium where it was noted that it has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects and that negative effects can occur after only a few days in solitary confinement and the health risks rise with each additional day spent in such conditions. The Statement noted that such practices can amount to torture in contravention of international law.

The Statement concluded that solitary confinement harms prisoners who were not previously mentally ill and tends to worsen the mental health of those who are.

CONCLUSION

This is the first Queensland Supreme Court consideration of the harsh law and order inspired jail practices initiated by the Queensland Attorney-General Bleijie. If any evidence was needed, this judgment clearly demonstrates that people treated like caged animals in jail will when released be severely mentally and probably physically health damaged. How is this consistent with rehabilitation.

by Terry O'Gorman

Anti-Bikie Laws - reform or revenge?

When the Queensland government introduced its anti bikie laws it by-passed all the usual safeguards against bad law by passing them through the Parliament on the same one day. The laws labelled bikies to be “vicious lawless associates” and declared bikie clubs to be criminal organisations. The laws also introduced unprecedented mandatory prison terms of 15 to 25 years (to be served in prison without parole) added to any ordinary term of imprisonment imposed by the courts for bikies convicted of a broad range of offences.

The laws also amended the Bail Act to deny bikies the presumption in favour of bail and instead requiring the courts to refuse bail to bikies unless they can show why their imprisonment is not justified. The grant of bail is ordinarily recognised by the courts as an important process in civilised societies which reject any general right of the executive government to imprison a citizen on mere allegation or without trial.

Faced with the devastating implications of these draconian laws many members of bikie clubs have resigned their club membership.

These mass resignations have achieved the government’s objectives of “disestablishing” bikie clubs as set out in the “Vicious Lawless Disestablishment Act 2013.”

The question now is whether the government wanted to introduce ‘reforms’ to improve community safety or whether it is conducting a witch-hunt on bikies.

It was legal to be a member of a bikie club in Queensland before 17 October 2013. Appropriately the government stated that these laws only apply to people committing offences after 17 October.

On Friday 8 November a Supreme Court Judge interpreted the new anti bikie bail laws to mean that they only apply to people who were bikies at the time of making their bail application not to anyone who has been a bikie at any time in the past. People who have resigned their membership of a bikie club (and who are not a participant in another criminal organisation) should therefore be entitled to the usual presumption in favour of bail.

If the government amends these laws to apply to people who were bikies in the past (when it was not illegal) it will expose its agenda to wield the power of its vast Parliamentary majority to enhance its popularity with total disregard for the Rule of Law.

by Terry O'Gorman

Update - the anti-bikies legislation commences.

This afternoon (17 October 2013) at 2.39 pm we received confirmation from the office of the Attorney-General that the Vicious Lawless Association Disestablishment Bill 2013 has received Royal Assent and is in force.

Although the email does not indicate that the other related bills also received Royal Assent, we understand that all three Bills have received assent.

The Vicious Lawless Association Disestablishment Act 2013 and the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 commence today, the day of assent, at the beginning of the day.

The Tattoo Parlours Act 2013, except for part 9 which amends the Liquor Act 1992, will commence on a day fixed by proclamation.

Links to the Acts are below:

1. Vicious Lawless Association Disestablishment Act 2013 and Explanatory Notes.

2. Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and Explanatory Notes.

3. Tattoo Parlours Act 2013 and Explanatory Notes.

by Terry O'Gorman

When will the Queensland Government’s oppressive ‘Bikie’ legislation take effect?

Yesterday the Queensland Parliament took extraordinary steps to suspend the usual democratic processes of Parliamentary law making to introduce and pass three Bills targeting members of motorcycle clubs. Links to each bill and their explanatory notes are below:

1. Vicious Lawless Association Disestablishment Bill 2013 and Explanatory Notes.

2. Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013 and Explanatory Notes.

3. Tattoo Parlours Bill 2013 and Explanatory Notes.

We have received multiple enquiries about when these bills will become law. A bill becomes an Act of Parliament which has the force of law either from:

the date that the Governor assents to the bill by signing an official copy of it; or
its commencement date published in the Queensland Government Gazette.

As at 5pm Wednesday 16 October 2013, there is currently no information either on the Queensland Parliament website nor on the Queensland Government Gazette online advising the public that the law has been assented to or proclaimed to commence.

This firm has today written to the Attorney General’s office requesting information on the commencement of these laws. As at this time we have received no response.

There being no information officially published about the commencement of these laws, they are not yet in force as at 5pm Wednesday 16 October 2013.

We will amend this message as soon as we become aware of the commencement of the laws however all readers should also take steps to check on the commencement date before taking any steps which may be expose them to adverse consequences under these laws.

by Terry O'Gorman

Media Release: Anti-Bikie legislation

Media Release by Terry O'Gorman

Vice-president of the Queensland Council for Civil Liberties

The failure by the Premier and the Attorney-General to even publish the details of yesterday’s Cabinet decisions about new bikie legislation demonstrates a new level of arrogance by the Queensland Government.

Civil Liberties Council Vice-President Terry O’Gorman said that it was bad enough that there was absolutely no consultation before Cabinet considered the new laws, but for Cabinet to tick off on the new laws yesterday without the details of those laws being subsequently published represents a return to the non consultation in relation to law and order legislation that characterised the 70s and 80s in Queensland.

“For the Premier to say that ‘civil libertarians and commentators will have their chance to pass judgment on whether those laws are effective’ and that there will be deliberate bypassing of the scrutiny of these new laws by the Parliamentary Committee process represents an unequivocal return to the Bjelke-Petersen era where laws passed in this manner where only the Police were consulted were roundly condemned in the 1989 Fitzgerald Report”, Mr O’Gorman said.

Mr O’Gorman said that for Mr Newman to say that he will ‘listen to debate down the track’ and that he is happy to ‘remove them’[1] at a later time just shows how arrogant the current Government has become with its thumping majority and no opportunity for review of the laws by an Upper House, which is the situation in other States.

Mr O’Gorman repeated that the Civil Liberties Council position is that any urgency in relation to Gold Coast policing following recent bikie flare-ups had been more than adequately met by the $20m which the Premier suddenly found to put more Police on the beat on the glitter strip.

“The bikie issues of the last 2 weeks have all been about urgently increasing Police numbers, not urgently and without any consultation at all changing legislation and increasing Police powers”, Mr O’Gorman said.

Mr O’Gorman said that the legislation which the Courier Mail described last week as “the most extreme ever introduced into the Queensland Parliament” must be subject to the Parliamentary Committee review process.

“It is bad enough that there has been absolutely no consultation on these new laws outside the QPS and the Attorney-General’s Department. There is no real, as opposed to feigned, urgency for Parliament to pass these new laws without consultation and without involvement of the Parliamentary Committee review process”, Mr O’Gorman said.

Mr O’Gorman said that one of the main criticisms that the Fitzgerald Report made of the Bjelke-Petersen years was that law and order legislation was introduced with no consultation and with input only from the Queensland Police Service and the Attorney-General’s Department.

“Premier Newman is reverting lock stock and barrel to that era and is cynically and without proper explanation bypassing the important Parliamentary Committee supervision process before these new laws are introduced”, Mr O’Gorman said.

Mr O’Gorman said that history shows that once new criminal laws are introduced, they are never repealed, and the Premier’s promise to look at repealing them in the future is part of the con sale job that he has so effectively done on the Queensland public in relation to these unnecessarily hurried bikie laws.

[1] See Brisbane Times “Bikie Legislation to Bypass Checks and Balances” by Amy Remeikis Oct 8 2013 3.52 pm

by Terry O'Gorman

Queensland's fast tracked bikie legislation

Media release by Terry O'Gorman on behalf of the Queensland Council for Civil Liberties in relation to the Queensland Government's announcement on new anti-bikie legislation.

Terry's letters to the Premier and the Attorney-General are available via the links.

Attorney-General Jarrod Bleijie’s indication that new anti bikie laws would not be subject to consultation and that even the relevant supervising Parliamentary Committee would probably be ignored and bypassed was today attacked by the Civil Liberties Council as reviving the Bjelke‑Petersen era.

QCCL Vice-President Terry O’Gorman said that what has been described as the “most extreme legislation ever proposed in Queensland”[1] must be subject to stakeholder and Parliamentary Committee input before it goes to Cabinet and before it is introduced and passed by Parliament.

“For the Queensland Attorney-General to say that the need is urgent and the laws should be passed as soon as possible with no supervisory Committee process at all is a reversion to the Bjelke-Petersen tactics of using a huge Parliamentary majority to speedily ram laws through Parliament come what way”, Mr O’Gorman said.

“This misuse of the Newman Government’s huge Parliamentary majority in a one house Parliament was roundly condemned in the Fitzgerald Report in 1989 and that was why the Parliamentary Committee system which now exists was one of the focal points of the Fitzgerald Report”, Mr O’Gorman said.

Mr O’Gorman said that the Fitzgerald Report’s concerns for this type of misuse of Parliament should not be seen as some sort of historic relic simply because the Report is over 20 years old.

“This is the first major Parliamentary term of the LNP since the Fitzgerald Report with the exception of a short 2 year stint in power of the Borbidge Government in the mid 90s”, Mr O’Gorman said.

Mr O’Gorman said that the Attorney-General’s attempted justification for bypassing the consultation process which is supposed to be followed for all legislation, namely that “the need is urgent”, is utter nonsense.

“What has occurred on the Gold Coast with bikie groups in the last 5 days is a matter of putting sufficient Police numbers on the ground in the glitter strip to deal with a spike in law and order problems”, Mr O’Gorman said.

“The Newman Government’s extreme reaction to Gold Coast bikie incidents in the last number of days is a deliberate smokescreen to distract public attention from the fact that the second shooting of a Police Officer on the Gold Coast last Friday was painted in the media as a direct consequence of the failure of the State Government to bolster Gold Coast Police numbers, as the Police Union has been arguing for well over 18 months”, Mr O’Gorman said.

Mr O’Gorman said that the Premier, the Police Minister and the Attorney‑General had deliberately exploited public fear arising from two Gold Coast bikie disturbances over the last 5 days to distract public and media attention from the lack of Police resources controversy flowing from the non-bikie related shooting of senior Police dog handler Sgt Hamrey last Friday.

“The State Government’s diversionary tactic has been very successful”, Mr O’Gorman said.

Mr O’Gorman said that even after 9/11, Australian State and Federal Governments took deliberate steps to consult before introducing new terrorism laws.

"We call upon the Premier to override the Attorney‑General and insist that there be proper consultation and Parliamentary Committee supervision of the new laws before they are passed by the current Government’s thumping majority”, Mr O’Gorman said.

by Terry O'Gorman

The Attorney-General should butt out and stop telling Queensland Judges how to sentence offenders

MEDIA RELEASE BY TERRY O'GORMAN
VICE-PRESIDENT QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

Civil Liberties Vice-President (Terry O'Gorman) said that reports attributed to the Attorney-General today that he had lost faith in Court ordered parole and suspended sentences were another alarming indication of the Attorney-General increasingly telling Judges how to do their job.

Mr O'Gorman also said that Parliament next week will conisder a law where the Attorney-General is telling Judges that anyone caught trafficking in drugs must serve 80% of their sentence before being eligible for parole no matter how minor the trafficking facts are, and even if trafficking is done by an addict who sells to feed a bad drug habit.

"The term 'trafficking' applies equally to the person who brings a plane full of heroin into Queensland as it does to someone who sells small amounts of cannabis to a group of his mates", Mr O'Gorman said.

Mr O'Gorman said that taking power away from Judges to decide when offenders were released from jail will cause more injustice on top of the increasing injustices from more and more mandatory sentencing laws being implemented by the Newman Government.

"Preventing Judges from sentencing case by case on the individual and often unique facts before a Judge produces injustice", Mr O'Gorman said.

Mr O'Gorman called on the Attorney-General to produce the evidence and the research to show that Court ordered parole and suspended sentences are not working.

"We call on the Attorney-General and the Police Minister to produce figures showing how often appeals have been lodged against Judges handing down sentences of Court ordered parole and suspended sentences", Mr O'Gorman said.

Mr O'Gorman said that the independent research available to the public and the media through the Sentence Advisory Council, against which law and order claims of inadequate sentencing could be measured, is no longer available as one of the first steps the Attorney-General took when he entered office was to abolish the Sentencing Advisory Council. This was done despite the fact that his conservative counterparts in New South Wales and Victoria have maintained Sentencing Councils in those respective States.

Mr O'Gorman said that the Attorney-General has also bemoaned the high rate of recidivism which is 70% plus for particularly male offenders.

"One of the significant causes for the high rate of people returning to jail is the worsening level of resources being put into jail based rehabilitation programs", Mr O'Gorman said.

"As a lawyer, I have to write again and again to try to get prisoners on rehabilitation programs and to get Court ordered treatment", Mr O'Gorman said.

"l have one current case where a Judge in December 2012 ordered jail based psychiatric treatment for a 21 year old offender and despite writing monthly since then, the offender still has not seen a Psychiatrist", Mr O'Gorman said.

Mr O'Gorman said that the Attorney-General's constant attacks on Judges meant that Judges were not able to sentence fairly and justly on the facts of the offender and the offence.

"lt is an attack on judicial independence and is pushing up the jail population with more money having to be spent on jails and consequently less being available for hospitals and education", Mr O'Gorman said.

by Terry O'Gorman

LNP Government undermines Judges

Media Release - LNP Government undermines Judges by a Proposal to scrap Court Ordered Parole and Suspended Sentences

by Terry O'Gorman

Privacy - Use of Drones

Potential for abuse with Queensland Police trial of drones.

QUEENSLAND police officers are testing a hi-tech surveillance drone that can be used to chase criminals, detect drug crops and find missing people all at a fraction of the cost of a helicopter.

As both Anna Bligh and Campbell Newman make competing election promises for a permanent police helicopter, The Courier-Mail can reveal testing is under way for superseding technology.

But civil liberty advocates warn that drones capable of flying at low altitudes pose significant privacy concerns.

The drones can be carried in the boots of cars and deployed almost immediately. They cost about $30 an hour to run, against about $500 an hour for a helicopter.

A police spokesman confirmed testing was under way but would not give details on what the drone would be used for.

"The Queensland Police (Service) is always inquiring about, and scoping, new technology in the marketplace,'' he said.

"As the QPS is in a research-and-testing stage to determine viability of this particular product, we are not in a position to make further comment.''

Police Federation of Australia chief executive Mark Burgess said he was aware of several police jurisdictions trialling drones or Unmanned Aviation Vehicles.

"They could be used for things like surveillance of areas where it might be difficult to get personnel on the ground,'' he said, adding he was unsure how advanced testing was with state police forces.

"Drones will add value to what we already do, but I can't see them totally replacing helicopters,'' he said.

"They can't land equipment and they can't land personnel.

"The reality is, They will be one of the tools in the armoury.''

But Australian Council of Civil Liberties president Terry O'Gorman last night warned police should not be testing drones without "immediate input and oversight'' from Queensland's Privacy Commissioner.

"The potential for abuse is very worrying,'' he said.

"Our concerns are we will get softened up by police who will say it will only be used to spot drug crops, or detect traffic snarls but, in due course, they will end up being used for everyday, mundane policing situations and that is a real concern.

"We are not objecting to drones - we would be Luddites to do so - but the ease with which drones can be used to spy on private property is concerning.

"This again raises our longstanding criticism that we've had of the Queensland Police Service that the slightest amendment to legislation has to go through Parliament, yet, major changes like these can go through with no parliamentary input at all."

Australian Certified UAV Operators Association president Joe Urli said drones were a "must have" for any modern police force.

"They can be used to gain a tactical advantage over a situation or to eliminate the risk of a police officer going into an unsafe situation," Mr Urli said.

He said that drones were already being used for biosecurity, crop monitoring and bushfire monitoring as well as search and rescue operations in Australia.

"There are many different types anything over 150kg is considered a large UAV and the smallest can fit in the palm of your hand," he said.

Late last year, police in Dallas, Texas, bought a $300,000 Shadowhawk drone to do some of the work that would normally be done using manned helicopters.

But privacy concerns were also raised in Dallas.

In Queensland, an election pledge by the LNP revealed that two police helicopters would cost $18 million to run over four years.

Police plan to use a drone equipped with an infra-red camera for everything from tracking criminals to finding lost hikers in difficult country.

In Cook County, Illinois, the sheriff's office was late last year in negotiations to buy drones to take over some of the work of its helicopters.

"It's the quickest and best way to get more efficient . . . as opposed to having dedicated people waiting for the weather to break for a helicopter to go up,'' Sheriff Tom Dart told Fox Chicago News.

Australian Civil Aviation Safety Authority spokesman Peter Gibson said that there was a growing interest in unmanned aerial vehicles in Australia, but any police force wanting to use the vehicles would need to apply for an operators' certificates, the same as everyone else.

by Terry O'Gorman

Compensation for Police Abuse of Power

Interview with Terry O’Gorman in relation to compensation from police abuse of power

Today Tonight, Channel 7, 19 September 2011:

A bikini model and budding actress, who was unlawfully arrested, handcuffed and locked up by a police officer, has taken on the force and won.

Renee Eaves sued the officer and the police service, and represented herself in court.

After an eight year battle she's won more than $90,000 in compensation.

Eaves is a bikini model, turned detective, turned lawyer, and she’s left the Queensland police force red faced.

And Barry Donnelly is the ex-cop and alleged stalker, who’s cost tax payers tens of thousands of dollars.

Donnelly was a Brisbane traffic cop who’s reach went far beyond law enforcement.

“He would ring my intercom downstairs in the apartment I resided in at the time, and neighbours would text me or call me and say ‘Barry's down here, don't come down’,” Eaves said. “He'd follow me around the city if I was in the Queen Street mall.”

As owner of Flirt Entertainment, a female dance troupe, Eaves’ distinctive car was hard to miss.

Donnelly's infatuation allegedly first began in 2004 when he pulled Eaves over for a minor traffic offence. She says he kept her waiting in her car for more than an hour, and admits she became abusive.

“I gave him a lot of attitude,” Eaves said.

In return Donnelly paid her a lot of attention, pulling her over another seventeen times, once as a passenger for having a twisted seat belt

By now the mother of two was convinced his actions were not just outside the bounds of duty, but well and truly out of line.

The obsessive behaviour came to a head when Donnelly dragged Eaves from her home and into the Roma St watch house, accused of driving while disqualified.

“He slapped some handcuffs on me and dragged me down through the elevator, through the foyer, past all the people dining.”

Eaves then spent two and a half hours in a cell, sick and four months pregnant.

“I kept reiterating to him that I was pregnant and I really needed rehydration, and he just paid no attention to that whatsoever, he'd roll his eyes and just laugh.”

That was in March 2006. A magistrate found her not guilty of the charge, and so began Eaves’ battle for justice - determined to sue Donnelly and the Queensland police force for $200,000 in damages for wrongful arrest, harassment and intimidation.

“If I win, I'll be lucky to cover my legals,” she said. “This isn't about the money because the money is going to be chewed up.”

Civil liberties lawyer Terry O'gorman says “the police hate having to pay out money in court-ordered damages awards.”

“Here you have in effect a David and Goliath situation. David - in the form of this model, has taken on Goliath and won, and we say to people ‘don't sit back and take cops abusing their powers, stand up for your rights’.”

To sue Donnelly, Eaves had to first serve him with a statement of claim. The Queensland police told her he'd gone missing, so she went looking for herself. She hired a private investigator and found him in just one day.

“When you go after the cop, you don't just go after the cop you know. It's big and it's scary,” Eaves said.

Against all the might of a government legal team, Eaves represented herself during civil proceedings at the district court in Brisbane last month. After eight years, and at the end of a four day civil trial, the model was vindicated and awarded $93,000 in damages, plus costs.

“You couldn't even put into words what they've put me through. It's been an absolute circus,” she said.

“If I can stop one other person from being put through what he put me through, it's worth it.”

by Terry O'Gorman