A Brisbane jury has today found John William Chardon guilty of manslaughter over his wife’s disappearance in 2013.
Section of 302 the Criminal Code (Qld) provides that:
“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”
In Weissensteiner v The Queen  HCA 65, it was said that:
“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”
In R v White  2 SCR 72, in the Supreme Court of Canada, Major J said that:
“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”
In The Queen v Baden-Clay  HCA 35 (31 August 2016), the High Court held that a jury is entitled to take into account the false denials of an accused in involvement in a person’s death to find that they did intend to cause the death and are therefore guilty of murder. That case also confirms that no direct evidence of the element of intent is required.
Eurydice Dixon was a young comedian who performed at the Highlander Club on the evening before the offences.
On 13 June 2018, Eurydice Dixon was on her way home walking across Princes Park, Carlton North shortly after midnight. Jaymes Todd had been following over a distance of 4.2 kms and for a period of almost one hour as she made her way on foot from Flinders Street, Melbourne to Princes Park. As Eurydice Dixon walked across the soccer fields in the park, Todd violently set upon her, committed the offences of rape, attempted rape and sexual assault, and murdered her by choking her to death with his bare hands.
Todd eventually went home and googled the term ‘strangulation and rape porn’, and watched various categories of a pornography websites. He also searched for ‘Princes Park’ and read the first reports about the murder he had committed.
That afternoon, a friend informed him that he had been captured on CCTV in relation to the murder. Because the friend urged him to go to the police and said she would report him if he didn’t, at 7.09 pm he contacted the Broadmeadows Police Station and told the policeman, who took his call, that he had seen your image on the news, but denied he was involved in the death of Eurydice Dixon. He also said that he would attend the police station.
At 8.29 pm he attended Broadmeadows Police Station with his mother and when interviewed gave at least three different and conflicting accounts, all of which were lies.
He later plead guilty to murder, one charge of rape, one charge of attempted rape, and one charge of sexual assault.
Section 3 of the Crimes Act 1958 (Vic) provides that:
“(1) Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to—
(a) level 1 imprisonment (life); or
(b) imprisonment for such other term as is fixed by the court—
as the court determines.
(2) The standard sentence for murder is—
(a) 30 years if the court, in determining sentence, is satisfied that the prosecution has proved beyond reasonable doubt that—
(i) the person murdered was a custodial officer on duty or an emergency worker on duty; and
(ii) at the time of carrying out the conduct the accused knew or was reckless as to whether that person was a custodial officer or an emergency worker; and
(b) in any other case, 25 years.”
Section 5 of the Sentencing Act 1991 (Vic) provides that:
(1) The only purposes for which sentences may be imposed are—
(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.”
Section 5A of the Sentencing Act 1991 (Vic) provides that:
“Standard sentence scheme
(1) If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a) the offence is a standard sentence offence; and
(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
(3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—
(b) wholly by reference to the nature of the offending.”
Commenting on Todd’s rape/murder fantasies, Justice Kaye said:
“I am satisfied, beyond reasonable doubt, that the offences of rape, attempted rape, sexual assault and murder, were each motivated by the overwhelming urge that you had to enact the fantasy with which you had become obsessed. In other words, you intentionally killed Eurydice Dixon by choking her to death, in order to gratify your perverted and depraved sexual desires. As such, the offending by you was totally and categorically evil. Your conduct, and your intentions and motivation, struck at the very heart of the most basic values of a decent civilised society. In the absence of any mitigating circumstances, the objective gravity of, and your moral culpability for, each offence — and in particular, for the crime of murder — falls into one of the highest categories of such offences…
The victim impact statements are a salutary reminder of the extent and depth of the grief and suffering which have been, and which will continue to be, the inevitable consequence of the offences which you have committed. While you are to be sentenced based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important not to lose sight of the enormity of the crimes which you have committed, and the profound grief and pain caused to so many as a direct consequence of your offending.59 As I have already stated, the maximum sentence for the offence of murder is life imprisonment, the maximum sentence for the offence of rape is 25 years’ imprisonment, and the maximum sentence for the offence of attempted rape is 20 years’ imprisonment. I should add that the maximum sentence for the offence of sexual assault, to which you pleaded guilty, is 10 years’ imprisonment. The relevant provisions of the Crimes Act 1958 provide that the standard sentence for the crime of murder is 25 years’ imprisonment, and for the crime of rape is 10 years’ imprisonment.”
Justice Kaye also noted this was a particularly serious case of murder for the following reasons:
“(1) The murder committed by you was not spontaneous. Throughout the period in which you trailed behind her on her way to Princes Park, you were seriously contemplating, and indeed obsessed with the thought of, raping and choking her to death. During the whole of that period, you had ample opportunity to come to your senses, to desist from following her, and to prevent the happening of the dreadful events that ensued.
(2) At the time you attacked, raped and killed her, Eurydice Dixon was totally vulnerable, defenceless and helpless. You set upon her after she had crossed two soccer fields, so that you were well secluded from the view of any person who might be passing along Royal Parade. You had the advantage of surprise, and it would seem, quite clearly from what occurred, superior strength.
(3) The murder by you of Eurydice occurred in the context of the events that immediately preceded it, namely, the rape, attempted rape and sexual assault that you had committed on her.
(4) The method by which you murdered Eurydice was appalling. The act of choking her to death, so that she suffocated, was callous, cruel and brutal.
(5) Your actions, in the period that followed the murder, aggravated the objective seriousness of your offending. There is no evidence that the vicious acts, by which you had raped and murdered your victim, troubled your conscience at all. Rather, you used Eurydice’s mobile phone, slept and ate, and accessed pornographic websites, including a website of videos that involved acts of brutal rape culminating in the death of a victim by strangulation. In the immediate aftermath of your offending, you had an entire and utter lack of concern for what you had done to an innocent and decent young woman.
64 In that context, the murder by you of Eurydice Dixon was far in excess of what could be described as falling within the middle range of seriousness of such an offence, by reason of the objective factors that attended that murder alone. “
Rejecting Prosecution submissions with respect to the murder for a lengthy period of imprisonment that fell short of life, Justice Kaye held that:
“In the end, and after giving this matter truly anxious consideration, and giving full weight to the mitigating circumstances to which I have referred, I have come to the conclusion that the only appropriate sentence, for the offence of murder in this case, is one of life imprisonment, with a fixed minimum period of years before you are eligible to be considered for release on parole. I have reached that conclusion because of the enormity of your offending, and the extremely high level of the objective gravity of, and your subjective culpability for, that offending. In my view, only a sentence of life imprisonment, with a fixed non-parole period, could properly vindicate the central sentencing purposes of general deterrence, denunciation and community protection.”
For the other offences, he was sentenced to lesser periods to be served concurrently with the murder sentence. A minimum non-parole period of 35 years’ imprisonment was also imposed.
Justice Kaye’s sentence clearly was intended to reflect the gravity of Todd’s offending, which was obviously heinous. It also reflected what one may suppose most members of the community would consider an adequate sentence. Interestingly, it exceeded the sentence recommended by the Prosecution, and this suggests there may be an appeal against the sentence imposed.
William ‘Uncle Bill’ Randall has been struck off as a lawyer following his convictions for numerous child sex offences.
William John Randall was admitted as a solicitor of the Supreme Court of Queensland on 9 June 1981. He never practised as a solicitor, and never held a practising certificate. He was however appointed a Magistrate in 1985 and served for a long time in the small claims tribunal until his retirement in 2016.
On 21 November 2017 he was convicted by a jury of a range of serious sexual offences committed against a child. The child was just five when the abuse started in 1990 at Randall’s home at Wynnum, on Brisbane’s bayside. It continued for almost 12 years, and the victim was 30 before he finally gathered the courage to tell police. Randall was initially sentenced to 9 years imprisonment but on appeal this was increased to 11 years imprisonment. He continued to deny his offending throughout and never showed any remorse.
Section 419 of the Legal Profession Act 2007 (Qld) states as follows:
(1) Professional misconduct includes –
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner if not a fit and proper person to engage in legal practices.
Section 452 of the Legal Profession Act 2007 states as follows:
Starting proceeding before a disciplinary body
(1) The commissioner may apply—
(a) to the tribunal for an order against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter.
Section 453 of the Legal Profession Act 2007 states as follows:
The disciplinary body must hear and decide each allegation stated in the discipline application.
Section 456 of the Legal Profession Act 2007 relevantly provides as follows:
“456 Decisions of tribunal about an Australian legal practitioner
(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period.”
In Legal Services Commissioner v Quinn  QLPT 19, the solicitor had pleaded guilty to and been convicted of one count of importing child pornography, one count of possessing child abuse computer games, and one count possessing child abuse photographs. The offending was detected after Quinn attempted to re-enter Australia while carrying Category 1 magazines and compact discs he purchased in Japan. At the hearing of the discipline application, Fryberg J found him guilty of professional misconduct and recommended that his name be removed from the local roll without giving any reasons.
In considering whether Randall should be removed from the roll of legal practitioners in Queensland, the Tribunal held that:
“Whilst this offending did not occur in connection with the practice of law, regard must be had to s 419(1)(b) and s 419(2) of the LPA. By s 9(1)(d) of the LPA, “suitability matter” relevantly includes whether a person has been convicted of an offence, and if so the nature of the offence, how long ago the offence was committed, and the person’s age when the offence was committed.
“The conduct for which the respondent was convicted was heinous and repugnant to the moral sensibilities of all right-thinking members of the community. It was conduct which, of itself, amply supports a finding that the respondent is not a fit and proper person to engage in legal practice.
“There will accordingly be a finding that the respondent engaged in professional misconduct.
“The nature, and extent, of the conduct is also such as to inform the order which ought be made as a consequence of that finding. It was conduct which is incompatible with the personal qualities essential for practice as a legal practitioner. By engaging in this conduct, the respondent effectively forfeited the privilege of ongoing membership of an honourable profession.
“Noting again that this course of action is consented to by the respondent, the Tribunal considers it appropriate in the present case to recommend that the respondent’s name be removed from the roll of practitioners.”
The result was that Randall was struck off.
The case of William John Randall concerns a spectacular fall from grace as a result of his sinister double life that finally caught up with him. He went from a Magistrate who stood in judgment of others to someone who found himself in the dock, followed by prison.
This case also is also an application of the long-established principle that a lawyer can get struck off for conduct unrelated to legal practice, particularly if the conduct is of a serious criminal nature.
Randall’s convictions made it unnecessary to prove the conduct the subject of his crimes, as proof of his convictions was sufficient to prove the criminal conduct. The serious nature of his crimes, the fact they occurred over a long period of time, the breach of trust they involved and his lack of remorse necessitated a conclusion that he should be struck off.
In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin. His conviction was highly controversial, and criticised by a number of commentators.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP  AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).
The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).
Section 141(1) of the Evidence Act 2008 (Vic) provides that:
“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”
Section 49B of the Crimes Act 2008 (Vic) provides that:
(1) A person (A) commits an offence if—
(a) A intentionally—
(i) sexually penetrates another person (B);…
(b) B is a child under the age of 16 years.
(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
A majority of the Victorian Court of Appeal has dismissed the appeal against conviction:
“By a majority of two to one, Victoria’s Supreme Court dismissed the appeal ordering Pell to “return to prison”.
“He will continue to serve his sentence of six years imprisonment,” Chief Justice Anne Ferguson said.
“He will remain eligible to apply for parole after he has served three years and eight months of the sentence.”
Cheers were heard from inside the courtroom and outside as dozens of supporters watching the appeal on the livestream heard the three judges slap down Pell’s appeal.”
An appeal to the High Court is likely.
UPDATE: footage of the Victorian Court of Appeal decision being handed down can be found here.
That footage is ©Supreme Court of Victoria.
Former Ipswich lord mayor Paul Pisale, a Singaporean friend named Yutian Li and a lawyer named Cameron McKenzie were accused of participating in a bizarre extortion plot:
“Prosecutors claim Yutian told Pisasale she wanted to punish Xin after learning he was married during their relationship.
Pisasale then allegedly posed as a private investigator in a series of phone calls in which he told Xin he needed to pay Yutian between $5000 and $10,000, saying she has “a very, very good case” against him and “could go after you”.
The money, Pisasale said, was reimbursement for Yutian’s private investigation fees.
“She was so upset. You could just see her whole world had been destroyed,” he told the court.
“She was a beautiful person. She was a very caring person and she would have given her 100 per cent to this bloke.
“She was broke, she was in Australia and she had nowhere to turn.
“All he had to do was reimburse her and let her start again but he was so determined not do.””
Pisale, Li and McKenzie were all found guilty by a jury of extortion.
Section 415 of the Criminal Code (Qld) provides that:
(1) A person (the “demander”) who, without reasonable cause, makes a demand—
(a) with intent to—(i) gain a benefit for any person (whether or not the demander); or(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.
(2) It is immaterial that—
(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way.
(d) the detriment is to be caused by someone other than the demander.
Judge Brad Farr sentenced Pisale to 2 years imprisonment to be suspended after 12 months for the two counts of extortion.
Judge Farr sentenced Li to 15 months for each charge, partially suspended. She will serve seven months in prison and is likely to be deported following that sentence. McKenzie received 18 months’ jail suspended after serving nine months.
Paul Pisale’s fall from grace is now almost complete, although he does face further charges which will take their own course.
It will be interesting to see whether McKenzie remains a lawyer for very long.
Why do you need a lawyer? On some level this is a basic and obvious question, but there is a lot more to the answer than first meets the eye. Although it seems like a pretty obvious question, there are in fact a number of advantages of having a lawyer.
1. Lawyers have knowledge and experience
A lawyer usually has special knowledge and experience acquired from their qualifications and their years of legal practice. A lawyer knows the law, should know the procedures, and will be able to prepare documents and handle your case in the most effective way. By engaging a lawyer, you are taking advantage of the knowledge and skills that he or she possesses, which should benefit your case enormously.
Lawyers know what points and arguments are most relevant and effective, and which ones are less so. Experienced lawyers know of the temperament and expectations of particular judges, and are able to tailor their approach accordingly. Lawyers can effectively advise you of the advantages and disadvantages of a proposed course of action.
In contrast, relying on the advices of people who are not legally qualified is a very dangerous thing to do, even if such people mean well. There are a lot of myths in the community about the legal system and how it works. By speaking with a lawyer, you can find out whether what you have heard is in fact true, and if not your understanding of your matter will become more accurate and realistic.
2. Lawyers can help prevent disputes
One of the popular and enduring myths about lawyers is that they create and promote conflict. In reality, lawyers issue try to prevent conflict and attempt to resolve conflict without the need for final judicial determination. Disputes can and often are resolved through the sending of constructive correspondence, negotiation and participation in alternative dispute resolution.
By protecting your rights and interests, getting the agreement into writing and ensuring that everything is legally sound, a lawyer can significantly reduce the likelihood of having a costly dispute arise in the first place. And even if a dispute does eventuate, the number of uncertainties and the risks of a seriously bad outcome are substantially less the earlier a lawyer is retained.
3. The other party will take you more seriously
Because lay people representing themselves are at such a disadvantage, the lawyers for the other party(ies) might be less likely to put forward decent offers to settle the case, which can result in you settling for less than you otherwise would. Without the benefit of legal advice, you are unlikely to know whether an offer you receive is reasonable, or whether you are likely to get a better outcome by rejecting it.
Even if you know the offers the other side have been prepared to put forward are inadequate, you may be less likely to settle your case because the other side know that you will struggle to prove your case as a self-represented litigant, which means more time, stress and risk.
4. Lawyers take the stress out the situation
Having someone on your side who is handling the situation for you can be rather reassuring, and reduces the stress you are feeling about your case. It saves you from having to read every piece of correspondence that comes in about your matter, feeling like you are in it alone or having to think about it constantly.
5. Lawyers save you time
For most people, time is valuable. By doing most of the work for you, the lawyer allows you to have the time to live your life. As a result, that you can spend time with your family and friends, and not have to take substantial time off work.
6. Lawyers are not emotionally involved
Because your lawyers are not you, there is a benefit of detachment that exists that allows your lawyer to view your case objectively and provide you with sound advice and recommendations. There’s an old legal truism that “he who acts for himself has a fool for a client”. This applies even to lawyers who represent themselves, because a self-represented litigant is usually too emotionally involved to see things objectively and make rational judgments. This is particularly the case in family law, where emotions are heightened.
7. If you win, you can get your costs
In civil litigation, the general rule is that the loser usually pays the winner’s costs. So if you win, you get (partly) compensated for the legal bills you have paid with a costs order in your favour. In contrast, if you are self-represented you are only entitled to claim for disbursements such as filing fees, and therefore cannot be compensated for your time and effort.
8. Lawyers have insurance
In Australia, all lawyers are required to have professional indemnity insurance. If your lawyer makes a critical error which costs you a lot of money, you can sue your lawyer for this. In contrast, if you mess up your own case you only have yourself to blame and therefore are not entitled to any compensation.
Of course, all this is not to say that you need a lawyer in every legal dispute you ever have. If for instance you have a dispute over a small sum in a tribunal where costs cannot be awarded, you would probably best be served by representing yourself. But in most other cases, the benefits of having a lawyer in a legal dispute far outweigh the costs.
Hamish McLaren born Hamish Watson stole $7.6 million from 15 victims over a period of years.
Before the crimes for which he was sentenced, McLaren had swindled people in the US, Canada, Britain, and Hong Kong.
Yesterday, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years.
Judge Charteris found that McLaren was unrepentant and had no genuine remorse for his crimes:
“His letter (read to the court last week) does not remotely persuade me that this man is sorry.
“I do not believe he has any remorse, I believe he is consumed by himself. He is driven by stealing the money of other citizens, all of whom trusted him. The focus was on his own wellbeing so he could live the high life, spending others’ retirement savings.”
Finding that this was the worst variety of white collar crime, Judge Charteris noted that:
“If the offender has received massive disapproval from the community — it’s appropriate that he should do so,
“How could he stand by and see people draw down their life super funds to be given to him? His behaviour is the most reprehensible one can imagine having regards to offences of this nature.”
$5.4M has never been recovered.
Catherine Holmes, the Chief Justice of Queensland has a piece in The Australian concerning some of the unfair and ill-informed criticisms of sentencing decisions in recent years:
Importantly, she does not say that decisions should not be criticised. However, given that judges are not supposed to respond to criticisms or defend their own decisions, personal attacks against judges and criticisms of decisions which do not show the reasons for the decisions undermine confidence in the Courts, and can threaten judicial independence:
“I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence.
This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a healthy democracy.
My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions.”
The article may be behind a paywall, so a subscription may be required.
On 4 June 2019, the Australian Federal Police raided the home of News Corp Australia journalist Annika Smethurst after she revealed in April last year that the Defence and Home Affairs departments had been discussing monitoring Australian citizens for the first time.
The following day, the Australian Federal Police raided the Australian Broadcasting Corporation’s Sydney offices as well after a number of stories known as the Afghan Files revealed allegations of unlawful killings and misconduct by Australian special forces in Afghanistan and were based on hundreds of pages of secret Defence documents leaked to the ABC.
Commissioner Gaughan said the raids were part of an investigation and alleged there had been an unauthorised leak of national security information to journalists.
Broadcaster Ben Fordham subsequently revealed he was the subject of a probe over his recent story about six asylum seeker boats attempting to reach Australia.
Section 79(3) of the Crimes Act 1914 (Cth) provided that:
(3) If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:
(a) a person to whom he or she is authorized to communicate it; or
(b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;
or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence.
Section 79(6) of the Crimes Act 1914 (Cth) provided that:
(6) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she commits an offence unless he or she proves that the communication was contrary to his or her desire.
Penalty: Imprisonment for 2 years.
Last year, legislation was passed by the federal government which repealed section 79 of the Crimes Act but which inter alia expanded the definition of “national security” to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”. Although this legislation provided a public interest defence to journalists, such protections were not afforded to whistleblowers who leaked to them.
Chris Merritt is not impressed:
“The Law Council last year suggested a mechanism to the government that, had it been adopted, could have removed the incentive to conduct those raids.
In the midst of the debate over changes to national security laws, the government changed tack and gave reporters a new defence that protects the publication of secrets that the reporter believes, on reasonable grounds, to be in the public interest.
But the government rejected the Law Council’s proposal for the same defence to be made available to those who provide such information to the media.
This gave rise to the current lunacy: public interest disclosures such as those made by Smethurst are defensible if made by a journalist, but the same information is not defensible if disclosed by a whistleblower in the federal public service. That inconsistency might explain why AFP officers targeted Smethurst and the ABC and why more reporters will inevitably be raided.
The main game, from the perspective of those who rejected the Law Council’s suggestion, appears to be all about finding reporters’ confidential sources and punishing them regardless of the public interest in what they revealed, and regardless of how many journalists and newsrooms are subjected to raids.”
Media lawyer Justin Quill believes that the warrants may be unconstitutional given that the chilling effect of the raids could be found to breach the implied right of political communication.
Whilst politicians and governments often pose as friends of free speech, press freedom and transparency, their actions demonstrate the opposite attitude. Powerful people will always have an incentive to entrench their own power and authority and reduce the power of others.
Who can forget Kevin Rudd’s promises of a new era of transparency, or the Gillard Government’s hamfisted attempt in its dying throes to regulate the media to make parts of it less critical of Labor?
On 23 April 2019, Opposition Leader Bill Shorten campaigned at the Queensland government-owned Gladstone Ports. At a free barbeque, an electrical engineer told Shorten that “It would be good to see higher-wage earners given a tax break’’. Shorten replied with “We’re going to look at that”, a claim which appeared to be at odds with his policy of slugging those with above average incomes with higher taxes.
The electrical engineer was subsequently suspended when he was told he had breached his employment contract for speaking to the media, and his pass did not work the following day when he arrived for work. His desk was also packed up and the contents returned to him.
Section 351 of the Fair Work Act 2009 (Cth) provides that:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken…
(3) Each of the following is an anti-discrimination law:…
(c) the Anti-Discrimination Act 1991 of Queensland.
Section 7 of the Anti-Discrimination Act 1991 (Qld) provides that:
Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
(j) political belief or activity
By speaking with an elected politician running for Prime Minister who was attending an event at his work, the worker was arguably merely engaged in political activity and/or expressing a political belief. By taking adverse action against him, the employer appears to have contravened the general protections enshrined under the Fair Work Act 2009 as well as the Anti-Discrimination Act 1991. The employer’s claim that he was fired for “speaking with the media” at first glance appears to be spurious.
Given that he was not technically fired from his work, the worker may not be able to claim for unfair dismissal as he may not have been dismissed from his employment. However, given that he soon after found a new job, a claim for breach of a general protection under the Fair Work Act 2009 may not be worth pursuing if there is not a significant gap between what he was being paid with his former employer and what he is currently earning.
One can only speculate whether someone in the Labor Party (connected either with Bill Shorten or the QLD Labor Government) urged the employer to take action against the worker for causing political embarrassment to Bill Shorten.