Thursday, 24th of August, 2017

Tasmanian Law Handbook

Welcome to the Tasmanian Law Handbook. Please choose from one of the following sections:

Welcome to the Tasmanian Law Handbook

Hello! Welcome to the Tasmanian Law Handbook. The Handbook is now in its 4th edition. It has been published once a decade since the 1980s, and has a long history with the Tasmanian legal community.

Many people have contributed to the Handbook: lawyers, academics, specialists, people in government, and members of community groups. Without the help of the Tasmanian community, this Handbook would not have happened - so a big thank you to everyone who has contributed.

This Handbook is a teaching and learning resource, for teachers and students, for people interested in the law, and for anyone who is looking for some more information about an issue. This is a community resource, meant to make the law more accessible to everyone.

The website is always being updated, so if you have any suggestions, or have noticed something that you think can be improved or corrected, please email us - the current editors, taslawhandbookeditor@gmail.com.

Regards,

Dashini Elankovan and Dinesh Loganathan

Acknowledgments

This is the 4th edition of the Tasmanian Law Handbook and the first online version of the Handbook. It has been a decade since the 3rd edition, and in that time we have observed substantial change in a range of Tasmanian laws, and an increasing embrace of national uniformity in various areas of the law.

The production of this new edition has relied heavily on the efforts of a number of people for updating text relevant to Tasmania, as well as on the cooperation of, in particular, Fitzroy Legal Service for updated text for nationally uniform areas of the law, and the ACT Online Law Handbook. We would like to express special appreciation to the Fitzroy Legal Service for their generosity in sharing their text in the national areas of Employment, Superannuation, Centrelink, Internet Law, and Taxation, and the ACT Online Law Handbook for the Consumer Law and Contracts chapters.

Numerous people have also contributed to the Handbook in a variety of roles. We would like to thank Bernie Reade for her administrative and liaising skills, Ian Humble and the team at Digital Ink for website development and patience during the long upload process, and the members of the Tasmanian Law Handbook sub-Committee – Marion Clarke, Anne Horner, Jane Hutchison, Chris Webster, and Bernie Reade for their time and many contributions. 

We would like to thank the editors, Dashini Elankovan and Dinesh Loganathan, the head editor – Lucy Smejkal (nee de Vreeze) for their contributions. But most of all, we would like to thank the generous authors from the ACT and Fitzroy Handbooks:

  • Dr Nicholas Seddon for his chapters on Contracts and Consumer Law
  • Elizabeth Beale for her chapter on Internet law
  • Craig Dowling and Neill Campbell for their chapter on federal Employment Law
  • Peter Rozen for his chapter on OH&S, which served as a template for Tasmanian OH&S
  • Michael Freedman and Rehana Chowdry for their chapter on Social Security
  • Daniel Smedley for his chapter on Taxation Law
  • Paul Bingham for his chapter on Superannuation

We would also like to acknowledge the invaluable contributions of the many local contributors who gave generously of their time and knowledge to make this edition of the Handbook possible. These people are:

  • Magistrate Chris Webster at the Hobart Magistrates Court for his vision and insight.
  • Marion Clarke at the Hobart Magistrates Court, for her tireless and multi-talented work on the Handbook
  • Craig Mackie and Jonathon McCarthy at Mackie Crompton Law Firm
  • Stuart Oldfield and Mark Mason at Youth Justice
  • Debra Rigby, President of the Mental Health Tribunal
  • Jane Hutchison, Manager of the Hobart Community Legal Service (HCLS)
  • Anne Horner, of the Handbook sub-committee, for her extraordinary contributions to the Handbook
  • Irene Tiang from the HCLS
  • Jason Wright from HCLS, with a special thanks to Jason for sharing his in-depth knowledge of Australian anti-discrimination law
  • Dr Christine Beuermann from the University of Tasmania, Law Faculty
  • Professor Dianne Nichol from the University of Tasmania, Law Faculty
  • Kiki Mussared from the University of Tasmania, Law Faculty
  • Dr Olivia Rundle from the University of Tasmania, Law Faculty
  • John Green LLB from Green Solicitors
  • Lindi Wall and Deputy Ombudsman Richard Connock from the Tasmanian Ombudsman Office
  • Dale Webster at Justice Tasmania
  • Julie McIntyre, Deparment of Health and Human Services (DHHS)
  • Jess Feehely from the Environmental Defenders’ Office (EDO)
  • Jeff Dunn, President of BikeTas
  • Mary McParland, Executive Officer of Cycling South
  • Craig Elliott from the Department of Primary Industry, Parks, Water and Environment (DPIPWE)
  • Ben Bartl at the Tenants’ Union
  • Jeanette Lewis and Rachael Andrews at Housing Tasmania, DHHS
  • Bruce Paterson, Legislative Review and Legal Support Strategic Control, Workforce and Regulations, DHHS
  • Heather Sculthorpe, CEO, Tasmanian Aboriginal Centre
  • Greg Barns from Michael Kirby Chambers and Prison Action and Reform Group Inc
  • Robyn Rumbold, Butler, McIntyre and Butler
  • Carey Higgins, Murdoch Clarke
  • The Hon. John White, at the Hobart Community Legal Service
  • Pip Shirley, at the DHHS, for her invaluable guidance with Youth Justice
  • Greg Todd, for his helpful corrections and information on Privacy
  • Mr Chris Rice, the principal solictor at the Hobart Community Legal Service for his help with administrative law

Final thanks must go to Austlii and ComLaw - the two legal websites that have been used here for links to legislation and case law.

Elements of the Criminal Justice System

The Law

How to Use This Handbook

The Tasmanian Law Handbook is an introduction to the law for people who would like to know more about the law. They could be coming into contact with the legal system, or be facing a neighbourhood dispute, or a disagreement with government; they might just be looking to know more about the law. This handbook is intended to be accessible to anyone who needs to know more about how the law might affect their life.

The handbook has been divided into a number of sections to address the subjects that most commonly arise as issues for people. This includes such topic areas as ‘Housing’, ‘Government’, ‘Community’, and ‘Criminal Law’.

The information contained here is not intended to be a replacement for legal advice, it is a resource to help inform people of the law. The handbook serves as an introduction to the law in Tasmania for everyone. For legal advice, please look to the Legal Assistance chapter in this section, where the contact details for free legal advice services are provided, as well as law firms specialising in different areas of the law.

What is the Law?

In the Australian legal system, laws come from two principal sources:

  • common law made by judges in the courts;
  • legislation made by politicians in parliaments both state and federal, or by local government. Local government legislation is usually called ‘subordinate legislation’ or ‘by-laws’

Legislation, also known as statute or Acts, is the primary source of law, and it comes from the parliament. But judges in court still influence how legislation applies. For example, an Act may apply to ‘the control of all domestic animals’. A person may own a ferret for rabbiting purposes. A judge will be responsible for determining whether the Act applies to ferrets, or this particular ferret.

Law derived from international sources also plays a role in areas such as human rights, trade and environmental protection. There is no requirement that international laws be made into law in Australia. International and domestic law are entirely separate systems. However, international law increasingly represents international moral standards, or practical means of regulating a global economy. In cases such as these, it is often common sense for the Australian government to bring international law into Australian law.

An interesting and important question is, why do Australians accept their laws? There are a number of ways of looking at this question. Some philosophers have said that a ‘social contract’ ties us all to the law; that we agree to the laws in return for the protections of the State. Other philosophers say that it is the government’s monopoly on violence that binds us to the law. The question of what makes laws ‘legitimate’ is something worth thinking about.

The Constitution

Australian parliaments's power to enact legislation comes from their constitutions. Both the States and the Commonwealth have constitutions. A constitution creates the parliament and defines its basic procedures. To achieve political stability a constitution is normally entrenched, which means that it is difficult to change, though this is not the case with some of the State constitutions such as the Tasmanian one. This can simply be changed by an Act.

Where the political system is a federal one, such as Australia's, a key function of a national constitution is to divide the power to make laws between the two levels of government. Before federation in 1901 Australia consisted of six separate self-governing colonies. Federation meant that these six colonies agreed to give up some of their powers to form a central government which would deal with certain specific issues affecting the new nation as a whole. Therefore the Commonwealth parliament can only make laws where it is specifically given power to do so by the Australian Constitution.

The subjects on which the Commonwealth can legislate are listed in section 51 of the Australian Constitution. These include such things as defence, currency, foreign (‘external’) relations, banking, corporate bodies, social security and industrial disputes affecting more than one state. Commonwealth powers to legislate in these areas are concurrent with the powers of the States. This means that State legislation will remain in effect until the Commonwealth exercises its power to legislate in a particular area. Once the Commonwealth does this, any State legislation which is inconsistent with Commonwealth legislation can be declared invalid. This must be done by challenging the legislation in the High Court.

The Common Law

Where the Common law Comes From

The common law has a long history. It originated in England during the reign of King Henry II (1154—89). Before that time, English law, like the law in other parts of the world, consisted of local customs which varied from place to place. To consolidate his grip on his kingdom, Henry II introduced a system of centralised administration of ‘the King's law’ by ordering judges to go ‘on circuit’ to the towns and villages of England to deal with disputes among his subjects. These judges developed a ‘common’ set of rules and procedures which gradually came to be written down by their clerks and the lawyers who worked in these courts. This written body of law became known as ‘common law’.

Common law was supplemented by law administered by the church, that is, ‘ecclesiastical law’. This was the law governing important aspects of human relationships such as birth, death and marriage. This law has now been almost entirely replaced by legislation. The possibility of any church administering law in Western societies is a distant one. Whilst religion may influence policy and broader societal trends, there is a traditional separation between church and state in common law countries, such as Australia, England, and Canada.

Until well into the nineteenth century, in both England and Australia, the common law continued to be the main source of law. Society was able to function reasonably well with little legislation. However, with the industrial revolution and the massive social changes it brought in its wake, there was a need for increased government intervention in the financial relations between people. Changing social attitudes also meant that the state was called upon to regulate practical issues that were once the province of the church or social standards. This included changes such as women’s rights to property, the vote, and divorce. There was also a revolution of the means of communication, which provided the means to do this. From the 1830s onwards, the making of laws by parliament became the key instrument for intervention and legislation quickly became the dominant source of law.

The common law continues to be the main source of law only in the diminishing areas of human activity unregulated by legislation. For instance, until recently the law of torts (civil wrongs) was mostly common law, though with the Civil Liability Act 2002 (Tas) and important legislative inroads such as compulsory motor accident insurance and workers compensation legislation, the common law is less influential.

Until 25 years ago the law of contract, that is, the law which enforces business transactions, was almost wholly common law. But, because judges found it too difficult to develop principles of common law to protect consumers, parliaments had to step in with legislation. Today legislation such as the federal Consumer Law have modified the common law of contract to create such protection. But even where legislation prevails, the common law continues to play an important function in the interpretation of legislation. There are also examples of legislation incorporating common law principles, such as with the Civil Liability Act 2002, which includes the common law tests for breach of duty.

Interpreting the Common Law

A major difficulty with the common law is its uncertainty. This is produced by different courts reaching different interpretations of the law in similar cases or judges reaching the same conclusion for different reasons or different judges reaching different conclusions in the same case. In the latter instances, it will be the opinion of the majority of judges which will decide the outcome of the case. Uncertainty is unavoidable in a rapidly changing society. Although it means unpredictability and surprises, it is the price that has to be paid for maintaining the adaptability and fairness of the law.

Judges try to avoid uncertainty in the law by adhering to the doctrine of precedent. The doctrine of precedent says that judges should follow legal rulings from previously decided cases. Thus, where identical facts occur in two cases, the judge should follow the decision in the earlier case. That case is said to create a ‘precedent’. Of course, it is very rare for cases to have identical facts. This means that if a judge believes that a difference between facts is more important than a similarity, the judge can ‘distinguish’ between the old and new decisions. The precedent will not be followed and a new precedent will be created, but both will be influential. A court should always give reasons for its decision. In this way the courts will try and avoid unpredictability in the law by developing a consistent body of law.

Some of the rules associated with the doctrine of precedent are as follows.

  • A court's decision in each case is binding on the parties to that case.
  • If there is an avenue of appeal or review against a decision, and it is not made within the time limit, the case is settled and cannot be re-opened.
  • If either side appeals to a higher court within the time limit, the higher court can affirm or overrule the lower court's decision.
  • There may be an avenue of appeal to a higher court still and in this case that higher court can affirm or overrule the original court's decision. The decision of the highest court is final.
  • Lower courts must follow decisions of higher courts, but only if they are in the same hierarchy. This means that a decision of a Supreme Court in one State will not be binding on the decisions of a lower court or a Supreme Court in another State. Such decisions will only be ‘persuasive’, that is, they can be used to guide the decision of a court in another State. The same applies to decisions of courts outside Australia. If a case is unusual or difficult, Australian courts may look to overseas decisions in England, New Zealand, Canada and the United States or even the European Union for guidance in deciding a case.
  • The decisions of the High Court of Australia are binding on all Australian courts and tribunals.
  • Courts are not bound to follow their own previous decisions but will usually do so in the interests of achieving consistency. Only if a court comes to the view that a previous decision is clearly wrong will it come to a different decision. The most frequent reason will be that a previous decision is an old one and circumstances have changed.

Courts have also developed a specialised set of rules for interpreting legislation. Sometimes where the Court’s interpretation of legislation causes problems, parliament will intervene by passing legislation to ‘clarify’ the law. Parliament will sometimes also pass legislation to bypass politically unwelcome consequences of judicial decisions.

Legislation

How legislation is made

Legislation usually originates as an idea for solving a social problem, promoting some desired government policy or generating government income. Sometimes law reform bodies will provide the inspiration for such ideas, sometimes a government department, sometimes an independent member of parliament, or sometimes they will come from the policy platform of the party in power. The idea is usually considered by the government in federal or state cabinet before it becomes the subject of public debate, though it can originate from an individual member of parliament as a Private Member’s Bill. Once the government has decided that legislation is necessary to give effect to the idea, instructions will be forwarded to the parliamentary drafting department to prepare a Bill.

A Bill is a proposed Act. Once a Bill is introduced into parliament, it will have to go through three readings in each of the two houses of parliament (except in Queensland which has no upper house). In the case of a federal Bill it will be considered by the House of Representatives and the Senate. In the case of a Tasmanian Bill, it will be considered by the House of Assembly and the Legislative Council. Serious parliamentary debate will take place at the ‘second reading’ stage. Amendments to a Bill are often made at this stage. It is also increasingly common for important or controversial Bills to be considered by ‘committees’ of the Senate or Legislative Council. Amendments to a Bill will often result from this process.

Before a Bill becomes an Act it must be given assent by the Queen's representative. In the case of a state Bill, the Governor gives the assent, and in the case of a commonwealth Bill, it is the Governor-General. This process is a remnant of the fact that federal and state parliaments are still formally subject to the Crown.

The Act must then come into effect, that is, actually become law. Sometimes the Act will say that it comes into effect on assent. At other times the Act, or different parts of the Act, will come into effect when ‘proclaimed’ on a particular day. This is done by a notice in the Commonwealth or State Government ‘Gazettes’. There may sometimes be years of delay in an Act coming into effect because the government becomes unsure about the Act, funding is lacking or the detailed administrative arrangements have to be made for its implementation.

An Act may amend another Act. It will have the word ‘Amendment’ in its title. Some original Acts are amended many times. For instance the Criminal Code Act 1924 (Tas) has seen many changes since 1924.

An Act may empower a public authority, a local council, a minister controlling a government department, or a public servant, to make Regulations, Rules, Ordinances, or By-laws. These laws are collectively known as ‘delegated legislation’ because Parliament has ‘delegated’, or given, its law-making power to another person or body. Parliament delegates its power for a number of reasons. Obviously it is much quicker for a parliament to lay down general principles in an Act and leave the day-to-day details to be worked out by those who will administer the law. These day-to-day details may need to be made, altered or repealed quickly, rather than through the lengthy process of making and passing legislation. Finally, delegated legislation allows for the administrator or enforcer to be a specialist or expert in some particular area.

Acts of parliament are binding on all courts and judges. Judges cannot over-rule an Act, unless an Act is unconstitutional, that is, beyond the power of the Commonwealth or State parliament which passed the Act. It is the constitutional role of the High Court of Australia to declare that an Act, or part of it, is invalid and of no effect where it is in breach of the Australian Constitution. It is very rare for state legislation to be in breach of state constitutions since there is no practical limit on the powers of states to legislate other than the Australian Constitution.

Judges, and in many cases special tribunals, also have wide powers to review decisions made under legislation and delegated legislation by ministers, officials and administrative bodies. These powers of review come from both legislation such as the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) and the common law. This important area of law is known as Administrative Law. Freedom of information is a necessary adjunct of this area of law. As government functions are increasingly privatised, there is a question as to the extent to which the principles of administrative law apply to private bodies carrying out those functions.

Legislation vs Common Law

Legislation is law made by parliaments. Legislation is also known as statute law, statutes, or Acts of Parliament. In Australia, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory and Norfolk Island. Other bodies, such as local governments, are given certain powers by parliaments to make legislation as well.

It is a well-established principle inherited from British constitutional law that parliament is sovereign or all powerful. This principle is controversial because, subject to constitutional limitations, it means that in theory parliament can make any law it wants to, even if it is contrary to what most people would regard as their basic rights. The fact that the law-makers must face election is one important brake on this power. However, many now call for the insertion of a constitutionally entrenched ‘Bill of Rights’ to guarantee that parliaments’ law-making powers respect these basic rights. This is yet to happen.

The practical result of the principle of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and the common law, legislation will over-ride the common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them. "Legislation is written on the common law".

The legislative powers of parliaments are also governed by the Commonwealth and State constitutions. Australia's obligations under various international treaties, conventions and covenants are also beginning to place limits on parliamentary sovereignty, though the present legal position is that these instruments of international law do not generally become part of national law until parliaments enact legislation to do this.

Interpreting legislation

Judges continue to play an important role in interpreting legislation because often the meaning of words and phrases in legislation will be undefined or hard to determine. This may be the result of simple oversight, a deliberate attempt to fudge the meaning to achieve a political compromise or a genuine recognition that all the circumstances in which the legislation may apply cannot be foreseen. The use of the word ‘reasonable’ in legislation is often a convenient route of escape for legislators in such situations.

Because the interpretation of legislation by the courts can have such an important effect on how the legislation is implemented, both Commonwealth and State parliaments enacted legislation to guide this process - these are the Acts Interpretation Acts. Explanatory memoranda state the intended effect of legislation. Second reading speeches, made by the politician who moves the Bill, and debates in parliament are also important. The Acts Interpretation Acts, both Commonwealth and State, provide that the courts must be guided by these statements, and other relevant extrinsic material (s15AB and s8B). The Commonwealth Acts Interpretation Act applies to Commonwealth legislation, and the State Act to State legislation.

Judges have developed special rules of statutory interpretation that are also used in understanding the meaning of a statute. The literal rule provides that words in legislation should be given their “plain, literal, natural, ordinary or grammatical meaning” unless they clearly have an established legal meaning as defined in previous case law. The ‘golden rule’ is an extension of the literal rule. It provides that words in a statute are to be given their ordinary meaning unless that interpretation should lead to some absurd result. In that case, the ordinary meaning should be modified in some way that the court thinks appropriate in the context of the legislation. The mischief rule provides that the court should look at the state of the law before an Act was passed to see what remedy the new legislation hoped to provide to cure the ‘mischief', that is, problem which existed under the law as it was.

The fourth approach is the purpose rule. This is provided in the Acts Interpretation Acts at the Commonwealth and State levels (s15AA and s8A).

Finding the Law

Primary and secondary sources

A primary source can be:

  • legislation
  • case law

A secondary source can be, amongst other things:

  • textbooks
  • commentaries
  • academic articles

Often finding the law is not easy, even for a lawyer. The first question is always: is there any relevant legislation? But even before that question can be answered it is important to know whether to look for Commonwealth or State legislation. If legislation is unclear, only supplementary to the common law, or non-existent then the place to look is case law, which is found in the many reports of cases decided by the courts known as Law Reports.

Websites on the internet enabling free access to up-to-date legislation and case law have revolutionised the task of locating the primary sources of the law. The most useful general purpose Australian sites for legal research are:

However, to find a way through the maze of these primary sources, it is usually still a good idea to start research with a secondary source of law, that is a text book, which gives a guide to the primary sources of law on a particular topic.

A site for Tasmanian law is:

Recent years have seen a flood of books about law for non-lawyers. These books are usually much easier to understand than legislation and law reports and may be all that is needed to find the answer. Usually they are about particular topics, for example ‘family law’ or ‘motor vehicle accidents’. This Law Handbook website attempts to provide an introductory guide to most areas of law affecting the ordinary person in their day-to-day affairs.

A person referring to secondary sources should be aware of three pitfalls:

  • the textbook may be out of date — changes to the law can be rapid in many areas;
  • some textbooks are unreliable — they may not be accurate in their explanation of the legislation and cases law;
  • views as to the law may vary — it is worthwhile to compare what different textbooks say.

One way of trying to avoid some of the pitfalls is to use loose leaf texts published by CCH, Butterworths and the Law Book Company. Though not as user friendly, they are generally more up-to-date, reliable and mainstream in their views. But make sure that they have been kept up-to-date. The loose leaf texts kept at law libraries generally will be current.

Another way is to follow up with a search on one of the legal websites for the occurrence of a key word or phrase in the area of law being researched. Make sure that research covers both the legislation and case law. Research is often difficult and time consuming. The best resources are often websites that require a paid subscription, such as LexisNexis or Westlaw. However, Austlii provides a free service with legislation, decisions of courts, and some articles. Familiarity with boolean search terms is also an asset. Information can be accessed through a simple internet search for boolean search terms.

Finding case law and legislation

Case Law

Commonwealth and State case law can still be found in authorised and other law reports. The authorised reports of High Court and Federal Court decisions are the Commonwealth Law Reports (CLR) and Federal Court Reports (FCR). The Federal Law Reports (FLR) cover most important federal cases. A more convenient and up-to-date set of reports of federal court decisions is the Australian Law Reports (ALR).

The authorised reports for important Supreme Court decisions are the Tasmanian Reports (Tas R), but more comprehensive, convenient and up-to-date reports are in ‘Unreported Decisions of the Supreme Court’ series, which are available online. Each state has its own authorised reports: New South Wales Law Reports (NSWLR); Victorian Reports (VR); Queensland Reports (QdR); South Australian State Reports (SASR); and Western Australian Reports (WAR).

When referring to a particular case that is reported in one of the law reports, there is a traditionally accepted shorthand reference. For example: Commonwealth v Tasmania (1983) 158 CLR 1. This is the shorthand reference given to the High Court's judgment in the Tasmanian Dams Case. The reference tells us that the case was decided in 1983, is to be found in Volume 158 of the Commonwealth Law Reports at page 1. Similarly, BMG Resources Ltd v Municipality of Beaconsfield (1988) Tas R 142 is a shorthand reference which tells us that the case was decided in 1988 and is to be found in the Tasmania Reports of that year at page 142.

As with legislation, the more convenient way to research case law now is through the internet. The High Court, Federal Court, Family Court and State Supreme Courts all publish their decisions on the internet as do many tribunals. Austlii provides .rtf and .html files of many Australian court decisions. The menu bar on the left hand provides access to Commonwealth and state case law and legislation. Significant amounts of case law have been transferred to internet databases, although some case law is limited. However, the High Court decisions on the internet now go back as far as 1903. It is now also possible to cite cases from the internet. Thus a Tasmanian Supreme Court case is now cited as follows: Henderson v P & O Resorts Pty Ltd [1999] TASSC 58 - which tells us that the case was number 58 of the cases in which there was a written decision of the Supreme Court in 1999. Page references have been replaced by paragraph references to enable reference to cases on the internet.

Legislation

Legislation, both State and Commonwealth, can be purchased from the State and Commonwealth Government printers. This is still the official version of the legislation. However, major disadvantages of researching legislation in this way are the cost and the need to make sure that all the up-to-date amendments are included.

Access to current legislation on the intemet avoids both these problems. Anyone can make a search of the legislation to see what provisions are relevant and then download and print them out. Such legislation is almost always up to date to the day. Commonwealth and State legislation can be found on www.comlaw.gov.au and for only Tasmania on www.thelaw.tas.gov.au  It is best to search the latter site through the ‘Browse A-Z’ if you are looking for a particular Act, as the search functions are comprehensive in their search results rather than title specific.

In addition, government Departments may have specialised web sites dealing with the laws that govern their operations.

Law Libraries in Tasmania

The law library at the University of Tasmania is accessible to the public for reading in the library, but not for borrowing, unless a person purchases membership to the library.

There are publically accesible law libraries attached to the Supreme Court in Hobart, Launceston and Burnie. These are the:

  • The Andrew Inglis Clark Law Library located on the ground floor of the Supreme Court in Salamanca Place;
  • The Launceston Law Library located on the Ground Floor, of Staffordshire House, 56 Charles Street;
  • The North West Law Library (Burnie) located on the 1st Floor, Supreme Court Building, Alexander Street.

The Supreme Court supplies an excellent legal research paper for people engaging in legal research using databases such as CaseBase and FirstPoint – both subscription legal databases, accesible from the supreme court law library. 

For more information on the law libraries attached to the Supreme Court, see the Supreme Court libraries website.

Legislation, law reports, and textbooks, can currently be found in the Law Society libraries in Hobart, Launceston and Burnie and in the University of Tasmania Law Library in Sandy Bay. The University library also has a wide variety of overseas law reports and law journals as well as internet access to a wide range of law databases. However, you must have a username and password to access the university internet access to law databases.

State libraries have legislation in the form of annual ‘statute books’ and some law textbooks as well as intemet access. Rural and suburban centres may not have a large selection of legal books but can arrange inter-library loans.

Law Reform

A just and efficient system of law is so important that it cannot always be left to parliaments and judges to carry out this task. The courts must wait for the issues to come before them and often prefer to leave controversial issues to the politicians. Politicians are often reluctant to deal with controversial or difficult issues. It is for this reason that both the Commonwealth and States have bodies whose task is to keep the process of law-making under continual review, and recommend changes to the law where it is found not to be operating justly or efficiently. This task is generally carried out by bodies known as ‘Law Reform Commissions’.

The Australian Law Reform Commission is very active and has prepared many reports for law reform including alcohol, drugs and driving, human tissue transplants, defamation, child welfare, privacy, domestic violence, sentencing, product liability, the adoption of Aboriginal customary law, a uniform Criminal Code and a uniform Evidence Act. Uniform Evidence Act came into effect in several states, including Tasmania, which gives uniform law across Commonwealth and state jurisdictions.

Tasmania has the Tasmanian Law Reform Institute (TLRI), directed by Professor Kate Warner. Examples of proposals for State law reform are changes to the law in relation to intoxication and criminal responsibility, a Charter of Rights for Tasmania, sentencing, criminal liability of organizations, the establishment of a drug court pilot in Tasmania, criminal liability of drives who fall asleep causing motor accidents, and the law of easements in Tasmania. The TLRI continues to produce important work on criminal and civil law issues. Papers and media releases are accessible through the TLRI website.

Neither Law Reform Commissions or the TLRI can reform the law on their own. They will recommend reforms to the Attorney-General. Law reform can often be a slow process because of the different social and economic interests affected by proposed changes. Generally there must be solid community support for such proposed changes before the legislators in parliaments are prepared to implement them.

The Court System

The Jury System

The right of ‘trial by jury’ is an important safeguard against the power of the state over people’s lives. The primary role of trial by jury is to enable ordinary people to decide on the guilt or innocence of those charged with crimes against the laws of the land, instead of judges or magistrates appointed by the government. Juries also play a limited role in the enforcement of civil laws as well. But the right to trial by jury has been limited in the interests of the efficient operation of the justice system. All minor offences and the majority of crimes which go to trial are dealt with ‘summarily’ at hearings without juries in the Magistrates Court. Very few civil trials have a jury because of the expense.

The role of the jury varies between civil and criminal cases. In a criminal trial, the role of the jury is to decide ‘questions of fact’ while the judge decides ‘questions of law’. Whether a particular blow killed a person is a question of fact. Whether the killing of that person by means of that blow is murder or manslaughter is a question of law. The jury will decide such questions by considering the evidence presented in the court. The jury will listen to witnesses and view the ‘exhibits’, that is, physical evidence such as weapons, finger-prints, documents or blood-stained clothing. After being ‘addressed’ by the lawyers on both sides of the case and listening to the ‘directions’ from the judge about the law, the jury will then retire to ‘consider the evidence’ and reach a ‘verdict’. In civil cases juries will sometimes decide on the amount of compensation. In defamation trials they may also make findings of fact.

Many aspects of jury duty are regulated by the Juries Act 2003 (Tas). Under the Act all people listed on the Electoral Roll between 18 and 70 years of age are liable for service as jurors. Persons who have been sentenced to imprisonment for a period of three months or more (including suspended sentences) in the previous five years, or are on bail, probation or performing community service, are not qualified to serve as jurors. The sheriff of the court can disqualify a person from acting as juror in the case of mental or physical disability or where the juror cannot understand English. A wide range of those who work in the justice system and their spouses, such as judges, magistrates, court officials, police and prison officers and lawyers as well as those working in essential services such as senior public servants, members of parliament, doctors, dentists, opticians, physiotherapists, chemists, vets, nurses, academics, teachers, pilots and air crews, and masters, skippers and crews of merchant ships and fishing vessels are exempted from jury service. The sheriff can also excuse those who have a ‘reasonable excuse’ including a ‘family responsibility’ which involves caring for other persons, or those who have served on a jury in the past three years.

Potential jury members will be summoned to attend the court. Failure to attend is an offence. The process of actually becoming a member of a jury is called ‘impanelling’. Both sides have the power to challenge potential jury members, though in the case of the defence in criminal trials a reason must be given after six challenges. Jury panels in criminal trials consist of 12 people and in civil trials seven people. In both cases a ‘foreman’ is appointed who speaks for the panel. A ‘majority verdict’ of 10 out of 12 jurors can decide a criminal case after two hours of deliberation, except for very serious offences. In civil cases ‘majority verdict’ of five out of seven jurors can decide the case after four hours of deliberation. Where majority verdicts cannot be achieved, in the case of both civil and criminal trials the jury is ‘discharged’ and there may have to be a further trial. Jurors are paid for lost wages and travelling expenses.
 

The Courts

Just as Australians live with two sets of law, federal and state, these laws are enforced by two separate court systems. Attempts to integrate the two systems have had only limited success. Both federal and state systems have ‘tribunals’, ‘boards’ and ‘commissions’ which deal with specialised areas of law. Another way of saying this is that tribunals, boards, commissions and courts have different jurisdictions. Jurisdiction basically means ‘area of power’. For example, the Family Court of Australia deals with family law. The Family Court’s area of power is family law.

Most courts and tribunals are open to the public, although access is sometimes restricted - the most important example being the State children's courts (now the ‘Youth Justice Division’ of the Magistrates Court) where only the child, the child's parents and lawyer are allowed into the court.

There is an increasing use of video hook-ups in the courts to avoid the costs and inconvenience of ‘live’ appearances and to protect some witnesses e.g. children, or rape victims.
 

The Commonwealth Courts

Federal Circuit Court

The Federal Circuit Court was set up in 1999 by the Commonwealth government to deal with several different areas of the law, including family law issues, such as child contact and child support matters, and divorce.

The Court also has jurisdiction over administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. The purpose of this structure was to take the pressure off the Federal Court, and especially the Family Court, and to provide a more accessible court structure. It has largely succeeded.

The Family Court and the Federal Circuit Court

The Family Court deals with family law issues. It is helped in its work by the Federal Circuit Court. The Federal Circuit Court deals with many of the more straightforward legal problems, such as divorce or separation. The Family Court deals with many of the more complicated or serious matters, such as allegations of child abuse, as well as child abduction cases. For more information see the Family section of this website.

The Federal Circuit Court can grants divorces. Where parents have separated, whether married of unmarried, it deals with disputes about the residence and care of children, and about the contact of children with the other parent and others in their lives such as grandparents. It also resolves property disputes between couples who have been married, and de facto couples.

The payment of maintenance by parents for their children, now generally known as ‘child support’, is usually dealt with by the Child Support Agency, though some cases are still dealt with in the Federal Circuit Court or the Family Court.

The Family Court and the Federal Circuit Court are very busy courts. There is a strong emphasis on the use of counselling facilities and on conciliation conferences to resolve disputes by consent. Mediation with family law issues is compulsory.

The Family Court's registry is in Hobart but it also sits in Devonport and Launceston. Counselling and conferences take place in these and other major centres. Urgent matters are generally dealt with in Hobart. There is increasing use of phone and video conferencing to reduce time-consuming travel for court officers and parties.

Reviews of Federal Circuit Court decisions are dealt with by a Family Court judge. An appeal from a judge's decision goes to a bench of three Family Court judges and from there an appeal goes to the High Court.

The High Court

The High Court is at the apex of both the Commonwealth and state court systems. Its administrative and ceremonial head is the Chief Justice and it has six other judges. Unlike other courts, all seven judges generally sit on High Court cases because of the importance of its decisions. The High Court's decisions must be followed by all other Australian courts and tribunals.

The court's key role is deciding constitutional cases. However, the bulk of its workload consists of appeals from decisions of state and territory Supreme Courts, the Federal and Family Courts. The right of appeal to the High Court in non-constitutional cases is not automatic. ‘Leave to appeal’ must usually be granted and this will only be done where a matter is of sufficient public importance and there is a reasonable chance of success.

Commonwealth Tribunals, Commissions and Boards

The Commonwealth has tribunals, commissions and boards too numerous to mention which are part of the vast web of laws and policies it administers. The most important ones are the Administrative Appeals Tribunal (AAT), Social Security Appeals Tribunal, and Veterans Review Board. The AAT reviews numerous decisions made by Commonwealth public servants, officials and ministers, and also decisions of many tribunals, boards and commissions. It can only review decisions where legislation says that it can. Many other administrative decisions can be reviewed by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Commonwealth crimes or offences, created under the Crimes Act 1914 (Cth) are heard and determined in the State Court system (Magistrates or Supreme Court). There is no separate Commonwealth court system to try commonwealth charges. The only difference with a hearing of a commonwealth charge in a state court is that the Commonwealth sentencing penalties will apply rather than the state Sentencing penalties. Examples of Commonwealth crimes are fraud against the cmomonwealth, the importation fo drugs, and offences on planes.

The Federal Court

The Commonwealth court system is much more complex than the State ones. Much more of its work is done by specialised tribunals, boards and commissions, though it does have a high volume of people using the Family Court system.

The Federal Court was established in 1976 in order to relieve the High Court of Australia of its ordinary workload. It has an Industrial Division and a General Division and sits in all State and Territory capital cities in Australia. The Federal Court in Tasmania is on Davey St. It shares premises with the Family Court.

The Industrial Division deals with the enforcement and interpretation of federal awards and agreements and workplace relations matters. The resolution of disputes, making of awards and the mediated settlement of court cases is dealt with by the Industrial Relations Commission.

The General Division of the Federal Court deals with cases relating to bankruptcy, trade practices, federal administrative law, federal taxation disputes, customs, copyright, patents, trademarks, and numerous other federal matters. Cases are dealt with by a single judge, with a right of appeal to the ‘full’ Federal Court (which has three judges), and from there to the High Court of Australia.

The rules under which the Federal Court operate allow judges to take a strong hand in case management to ensure that cases, or as many issues as possible in cases, are quickly resolved before they go to trial. There is increasing use of video connections to get ready for trials and take evidence.

The State Courts of Tasmania

The Supreme Court of Tasmania

Tasmania has a two tier court system made up of the Magistrates Court and the Supreme Court. The Supreme Court acts as an appeals court. Other states have a three tier system due to larger population sizes and greater case loads for courts.

The administrative and ceremonial head of the Supreme Court is the Chief Justice. There are five other judges. Judges are appointed by the Governor on the advice of the Executive Council. This Council is comprised of State Ministers, the Premier, and representatives from the legal profession. Judges are addressed in court as ‘Your Honour’, ‘Madam’ or ‘Sir’.

The Supreme Court deals with civil cases above a money limit of $50,000 and criminal cases which are heard by a jury. The Supreme Court also hears appeals from civil and criminal decisions of the Magistrates Court. The Full Court of the Supreme Court (which consists of three Supreme Court judges) hears appeals from decisions of a single judge in the ordinary Supreme Court. Similarly, the Court of Criminal Appeal (also with three judges) hears appeals from decisions of a single trial judge in criminal cases. Decisions of the Full Court and the Criminal Court of Appeal can be appealed to the High Court of Australia, which usually sits in Canberra. It only hears appeals which concern the Constitution or an important point of law.

The Supreme Court has its ‘Principal Registry’ at Salamanca Place in Hobart and ‘District Registries’ in Launceston and Burnie. Judges sit in these centres for trials but appeals involving three judges only take place in Hobart.

Settlement of civil cases by mediation is gaining ground in the Supreme Court, but mediation is not compulsory. The Associate Judge, previous known as ‘the Master’ helps to manage the civil jurisdiction of the Supreme Court.

In the past, civil cases in the Supreme Court may have taken years to come to trial, or settle. It is not unusual for personal injury cases to take seven to eight years to resolve. The Court has an active case management focus, which means it intervenes to move cases on – diverting dispute into alternative methods of dispute resolution in order to confine the issues that will appear before the court for resolution. Conciliation is compulsory in the SC, it is free, and noncompliance will see the case not being listed for hearing.These case management procedures are also used in the Magistrates Court. There are indications that new case management procedures are making the court process quicker, and more accessible.

The Magistrates Court

The Magistrates Court is the ‘workhorse’ of the legal system. The majority of people who have contact with the courts will do so through the Magistrates Court. The Magistrates Court deals with civil cases up to a money limit of $50,000, with unlimited jurisdiction by consent of the parties, and criminal cases which are not heard by a jury. The money limit changes from time to time by proclamation, to reflect the value of the dollar. Plaintiffs often reduce a claim in order to keep the matter in the Magistrates Court, or to keep the matter in the small claims tribunal division of the Magistrates Court.

The Magistrates Court also hears preliminary proceedings, formerly known as ‘committal proceedings’ which test the evidence on serious criminal offences before they go to the Supreme Court. The Youth Division of the Magistrates Court is part of the Magistrates Court though it operates under its own legislation. Magistrates also act as Coroners.

The Magistrates Court takes its name from the magistrates who are its ‘judges’. Magistrates are appointed by public advertisement. The administrative head of the Magistrates Court is the Chief Magistrate. The Chief Magistrate is assisted by the Deputy Chief Magistrate. Each of the three regions of the State has its resident magistrates who also sit in smaller centres. Magistrates are addressed in court as ‘Your Honour’, or ‘Sir’ or ‘Madam’.

An important part of the Magistrates Court is the ‘Small Claims Division’. This part of the Court deals with civil cases with a money limit of up to $5,000. Its purpose is to deal with cases as cheaply and efficiently as possible by cutting down on formal legal procedures and encouraging negotiated settlements. Lawyers can only represent people in the Small Claims Division in very rare instances.

Under new rules, civil cases proceed quickly through the Magistrates Court. All cases go through compulsory mediation with emphasis put on the parties to settle the case or to settle as many issues in the case as possible by means of aggressive case management procedures and cost penalties.

State Tribunals, Commissions and Boards

The State court system has a number of important specialist courts called ‘tribunals’ or ‘commissions’. The three most important are the Workers Compensation Tribunal, the Resource Management and Planning Appeals Tribunal and the Industrial Commission.

Matters that would otherwise be heard by an Administrative Appeals Tribunal (AAT) in other states, are heard in Tasmania in the Magistrates Court. Under the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas), the court hears appeals against administrative decision. For example, the Magistrates Court will hear appeals from people who were refused a gun license or a driving license, on their initial application. If a person is refused a license by an administrator, the Magistrates Court (Administrative Appeal Division) Act provides for appeal through a magistrate. The same applies with tax assessment, closure of public roads, declaration of dangerous dogs – numerous Acts containing powers for administrative decisions will include a right of appeal to a magistrate. Gun licenses, motor vehicle licenses, security licenses, state taxation matters – these are a few examples. If the Act in which the administrative powers are contained do not include an avenue of appeal, the Magistrates Court (Administrative Appeal Division) Act allows for this review.

Administrative appeals are held de novo. This means that the appeal is heard ‘as of new’ – that means that the appeal is a fresh attempt to be granted an administrative right. The magistrate will consider the matter anew, as if standing in the shoes of the original decision maker.

Aspects of Crime and Punishment

What is Crime?

Crime is illegal activity that is prohibited by the law. A crime is often called an ‘offence’. Some people wear shirts that say ‘it’s only illegal if you get caught’. This is untrue. Any activity prohibited by statute or the common law is illegal whether you are caught or not. This is like saying ‘it’s only illegal to hurt children if you get caught’. Most people would agree that hurting children is illegal whether or not the people who commit such crimes are caught.

The law, and the crimes it creates are most often a reflection of morality. Morality is made up of the principles we use to govern our relationships with one another. This is why actions such as stealing, assault, rape, and murder are crimes – each of these acts harms our ability to trust other people, and to feel safe in society.

Other questions around crime are less easy to answer. Why is smoking cannabis a crime and smoking cigarettes not a crime? Why is alcohol legal but not other drugs? These are very difficult questions to answer, and there are many different answers. Often it is a question of cost and benefit. Tobacco products are heavily taxed. The tax from the sale of cigarettes goes to the public health system. Tobacco users will have greater cause to rely on that system later in life. It is more of a benefit to tax cigarettes and use money gained from that for the benefit of all, than to attempt to prevent people smoking them, which would involve more cost, and less benefit in the way of crime prevention. It would also create another large illegal industry, alongside that of drug manufacture and supply.

On the whole, crime is something that has to do with the greater good of society. The law criminalises activities that will hurt our relationships with one another, and in society as a whole. There are different levels of crime though – not all crimes are of the same magnitude. A parking offence is very different to murder. The law reflects the difference between these in the way the legal system deals with each crime, and the penalty imposed. A parking offence will incur a small fine, murder will incur a term of imprisonment.

Major Offences

Major offences, called ‘crimes’ are tried on indictment in the Supreme Court before a judge and jury of twelve citizens. The judge instructs the jury as to the applicable law and the jury decides all issues of fact and then applies those facts to the law in order to reach a verdict. Tasmania, along with Queensland, Western Australia and the Northern Territory, has an Act codifying the criminal law. This means that we have an Act that sets out all the crimes in our jurisdiction; there is one central source, with a few other Acts that define crimes. The relevant Act in Tasmania is the Criminal Code Act 1924 (Tas) (the Criminal Code). The other three States, and the Australian Capital Territory, rely on the common law, updated in parts by state legislation, to determine what is a crime.

Most Tasmanian crimes are set out in the Criminal Code, but there are a few contained elsewhere, such as dangerous driving, and more serious drug offences, for example, trafficking that are tried on indictment. Alleged breaches of more serious Commonwealth laws are tried in the same way.

Lesser Offences

Lesser offences, not strictly ‘crimes’, are contained in numerous pieces of legislation - Police Offences Act 1935 (Tas), Traffic Act 1925 (Tas), Road Safety (Alcohol and Drugs) Act 1970 (Tas), to name a few. Offences are also set out in regulations made under many Acts such as the numerous regulations under the Traffic Act.

Alleged breaches of such Acts, and the regulations made under them, are decided summarily by a magistrate.

Proceedings are commenced by complaint (Justices Act 1959 (Tas), s27). A complaint is a document usually issued by the police to a justice of a court, containing an allegation that a person has committed an offence of a minor nature. A justice is usually a magistrate in the case of lesser offences. The person against who the complaint is made will also be given a copy of the complaint. A person can be brought before the court in several ways. If they are in custody, they may be bailed by the police or a magistrate to appear in court at a later date. They can also be brought before the court by way of a summons. A summons is a document issued by the court to a person, usually by mail, detailing the date, time, place and reason a person must be in court, If a person fails to answer a summons by appearing in court, a justice can issue a warrant for their apprehension.

Crimes vs Civil Wrongs

In broad terms, crime involves community condemnation and punishment through the State (either State or Commonwealth), while a civil wrong is a wrong against an individual that calls for compensation or repayment to the person wronged. If a person takes money from someone’s bag without their permission, intending to keep it, they are committing a criminal offence (stealing) for which they may be punished if found guilty. They may also be ordered to pay the person they stole from compensation, but this is only in addition to the punishment process. On the other hand, a person who fails to pay back money which was loaned to them does not necessarily commit a crime, and although a person can take a civil case to get the money back, the person will not necessarily be criminally punished.

Crimes are prosecuted by the State or Commonwealth, although private criminal prosecutions are possible, albeit very rare. For civil matters, it is up to the individual affected to take proceedings against the person who allegedly committed the civil wrong. A victim of a crime, whether it is one of violence or against property, has a right irrespective of the outcome of a criminal prosecution to sue the culprit for damage or loss. Of course, many such offenders have no assets and therefore obtaining a civil judgement against such a person is often fruitless. The Tasmanian government provides some assistance with Victims Support Services and the availability of Criminal Injuries Compensation.

Victims of some crimes are entitled to criminal injuries compensation where criminal conduct is proved and it is apparent that the offender has no means to satisfy a civil judgment against the victim. The maximum compensation available is $30,000 where there is a single offence and $50,000 where there is more than one offence (s4, Victims of Crime Assistance Regulations 2010 (Tas)). Such compensation is not available for the loss of property. However, both the Magistrates and Supreme Courts can make restitution orders under the Sentencing Act (s65) for loss of property, and other offences. Stealing and theft restitution is only available for offences under the Criminal Code.

Many minor criminal offences may also have serious civil consequences, for example, driving without due care and attention which may lead to destruction of someone's motor vehicle or personal injury. Civil cases only have to be proved on the balance of probabilities, whereas criminal cases or offences must be proved beyond reasonable doubt.

Which Court?

The vast majority of criminal matters in Tasmania are dealt with in the Magistrates Court. Matters dealt with in the Magistrates Court range from speeding offences to crimes of dishonesty such as aggravated burglary and stealing where the property involved is less than $5000. Some matters cannot be heard in the Magistrate Court, whilst some matters afford the defendant the right to elect either the Magistrate Court or the Supreme Court. For example: if a person is charged with a crime of dishonesty such as stealing, dishonestly acquiring a financial advantage, forgery or receiving stolen property then under sections 71 and 72 of the Justices Act 1959:

  • if the value is $5,000 or over, there is a trial or plea of guilty in the Supreme Court;
  • if the value does not exceed $5,000, the accused has an option as to which Court in which they wish to be tried; and
  • if the value is below $500

it is normally decided before a Magistrate, but upon application the Magistrate can send it for trial upon indictment to the Supreme Court.

A person charged with dangerous driving under the Traffic Act 1925 has an option as to which Court, as does a person charged with escape. A ‘minor’ assault (common assault under the Police Offences Act 1935) must be dealt with in the Court of Petty Sessions, and a ‘major’ assault (Criminal Code assault) in the Supreme Court. A person can be charged with selling a prohibited substance under one section of the Poisons Act 1971 (Tas) upon indictment in the Supreme Court and or summarily under another section in Petty Sessions.

Coroner's Court/Inquest

Where an unnatural death or a fire has occurred, and no one has been charged by the police with an offence, an inquest into the event will be held in a Coroner's Court. The Coroner decides the manner and cause of death or the fire, and whether there is enough evidence to put any person on trial before a judge and jury. In some cases an inquest may be held to establish the date and place of the death or the fire, and the identity of the deceased, even though a person has been charged with an indictable offence arising out of the incident.

Fundamental Legal Rights

Basic rights either derived from the common law or contained in legislation are as set out below.

Rights of a Defendant in a Trial by Judge and Jury

A person to be tried on indictment in the Supreme Court has the right to disclosure. Disclosure involves the prosecution giving copies of written statements of all evidence to be led against the defendant at the trial (Crown papers). A person tried in the Court of Petty Sessions may apply for and receive relevant police documents including witness statements, under Right to Information legislation. The prosecution has a duty not to proceed if they believe there is no substantial prospect of conviction.

A defendant also has a right to a preliminary hearing of all the evidence in front of a magistrate or justice of the peace (s61Justices Act 1959). This is known as a committal or preliminary hearing. At a preliminary hearing a person may elect to cross-examine witnesses At this hearing an accused, or their counsel, can cross-examine witnesses. An accused can give evidence if they wish. Any decision regarding the preliminary proceedings is in the hands of the Supreme Court.

Innocent Until Proven Guilty

The basis of our system of criminal justice is that a person is to be considered innocent, if charged with a crime or offence, until proven guilty. The civil law system in Europe makes the opposite presumption. A person is guilty until proven innocent in their criminal justice courts.

Proof ‘Beyond Reasonable Doubt’

The prosecution must satisfy the magistrate or jury, as the case may be, that the accused person is guilty beyond reasonable doubt. If there is any reasonable doubt whether the accused is guilty, they should be ‘acquitted’, that is, found to be not guilty of the offence.

It is not up to the accused to establish their innocence, although sometimes the accused has to show that there is sufficient evidence to raise an issue as a defence. For example, a judge will not instruct a jury as to self-defence without some factual basis for it.

In some cases, the burden of proving a particular defence, such as insanity, may be on the accused person, but only on the balance of probabilities.

The Right to Remain Silent

A basic right, strongly enforced by the courts, is that a person is not required to answer any questions put by a police officer, except in certain limited situations. This right extends to a person’s jury trial or summary trial. A person cannot be compelled to give evidence at their trial.

Disclosure

The prosecutor's duty includes calling relevant witnesses who may assist the defence case (unless the prosecutor believes them not to be truthful), and advising the defence of anything known that may conceivably assist the accused.

Double Jeopardy

A person once acquitted cannot be re-tried. Likewise a person cannot be punished twice. This is known as autre fois acquittal or autre fois convict. There can, however, be a re-trial if a jury cannot reach a decision or if a court on appeal quashes a conviction or acquittal.

Bail

Every person arrested can apply to a magistrate for bail, save for a charge of murder. If a person is refused bail by a magistrate, that person may make an application for bail in the Supreme Court before a judge. The Bail Act 1994 (Tas) is the primary Act governing questions of bail.

In family violence matters, bail will not be granted unless the court, judge or police officer deciding the grant of bail is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or child (s12, Family Violence Act 2004 (Tas)).

A Right to Contest the Admissibility of Evidence

The criminal law provides for means by which a defendant can contest the admissibility of evidence against them to a court on the grounds that the evidence was improperly or illegal obtained. In Tasmania, the Criminal Law (Detention and Interrogation) Act 1995 (Tas) regulates police conduct and the interview, interrogation and charging process, and the Evidence Act provides that a court has a discretion to exclude evidence where that evidence was improperly or illegally obtained.

Evidence unfairly or illegally obtained may be admitted as evidence at the trial by a judge or magistrate in the exercise of their discretion, but evidence proved to be obtained under duress must always be disallowed. The type of improper or illegal conduct will heavily influence the discretion of the court in its decision. For example, obtaining a confession by beating a defendant, or the use of an illegal listening device, would heavily influence the court to exclude evidence. The court will look at the nature of the conduct and also the value of the evidence. The process is  done by a ‘trial within a trial’ known as voir dire,

Hearing a charge against you: magistrates

 

The minimum requirement before one can become a magistrate is to be a qualified legal practitioner of at least five years standing. Most magistrates, in reality, are vastly more experienced than the five year minimum. Magistrates can also hear some matters contained in the Criminal Code, for example, allegedly stealing property of a value of less than $5000. These are sometimes referred to as ‘indictable matters tried summarily’. This means matters that could go before the Supreme Court, but which can be heard and decided by a magistrate.

A magistrate sits alone and determines whether the charge brought before them is proved or not proved. That is to say, a magistrate (if the defendant pleads not guilty) conducts a summary hearing where the prosecution calls evidence and witnesses are subject to cross-examination. A summary trial is a short trial.

As in a jury trial in the Supreme Court, the defendant is not compelled to give evidence but may choose to do so – this is the ‘right to silence. A jury trial will nearly always take longer than a summary trial.

The rules of evidence that govern the Supreme Court and the Magistrates Court are the same, save for a small number of rules that differ as a result of procedural differences.

The Magistrates must direct themselves as to the law just as a judge would instruct a jury as to the law.

In the Magistrates Court the magistrate is the sole arbiter of fact and law whilst in the Supreme Court the judge is the sole arbiter of the law, whilst the jury decides the facts. The jury then apply their findings of fact to the law as the law has been explained to them by the judge.

Guilty/Not Guilty

The question of ‘guilty or not guilty?’ is decided on the basis of a case being proved beyond reasonable doubt. If a magistrate (in the Magistrates Court) or jury (in the Supreme Court) is not satisfied that the prosecution has proved its case beyond reasonable doubt, the proper verdict is not guilty. Conversely, if the magistrate or jury is satisfied that the prosecution has proved its case beyond reasonable doubt a verdict of guilty will be returned.

Upon a finding of not guilty, that is the end of the matter, unless a costs application is made by a successful defendant. Upon a finding of guilty or upon the defendant's plea of guilty, proceedings continue to the sentencing stage. At that point, the defendant, usually through a legal practitioner, makes submissions to the judge or magistrate in relation to the sentence that may be imposed. This is known as a plea in mitigation and the jury takes no part in this process.

Conviction

When a person is found guilty of a crime or an offence, both the Supreme Court and Magistrates Court, have the following powers. The court may:

  • Record a conviction and order that the defendant serve a term of imprisonment; or
  • Record a conviction and order that the defendant serve a term of imprisonment that is wholly or partly suspended; or
  • Record a conviction and make a community service order in respect of the offender; or
  • With or without recording a conviction, make a probation order in respect of the offender; or
  • Record a conviction and order the offender to pay a fine; or
  • With or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or
  • Record a conviction and order the discharge of the offender; or
  • Without recording a conviction, order the dismissal of the charge for the offence; or
  • Impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by the Sentencing Act or any other enactment.

It is permissible that a magistrate or judge not proceed to convict a person notwithstanding that that person's guilt has been established either upon their trial or upon their own plea of guilty.

In the case of a conviction for murder, the fixed penalty until recently was a sentence of imprisonment for life. Sentences imposed for murder are now fixed terms. Prisoners previously sentenced to life imprisonment may apply to the Supreme Court for re-sentencing in order to obtain a fixed term sentence. A person can also be classified as a ‘dangerous criminal’ (s19, Sentencing Act 1997 (Tas)) and kept in custody indefinitely until the ‘dangerous criminal’ classification is revoked by a judge in the Supreme Court. Alternatively, an order can made that the life prisoner be dealt with by the mental health system. This is done through a restriction order, which requires a person to be admitted and detained in a secure mental health unit until they are no longer classified as a dangerous criminal (s77, Sentencing Act 1997 (Tas)).

Records of Convictions

The police will record all charges where there has been a finding of guilt against the defender whether or not that person has been convicted. These records are usually produced by the prosecution at the sentencing hearing and are normally relevant to the sentencing process. This information is also released when you apply for a National Police Check, which is now often standard procedure for job applicants to produce when applying for employment.

The Annulled Convictions Act 2003 (Tas), has had the effect of restricting disclosure of information about some minor convictions. This includes where a person with a minor conviction is of good behaviour for 5-10 years (s6Annulled Convictions Act), or where the offence for which the person was convicted is no longer an offence under any law (s8). An annullment means that a person is not required to disclose the conviction to any other person, and the annulled conviction is not part of the person’s official criminal record (s9).

Time Limits

There is no time limit to a charge on indictable offences, that is, crimes. However a complaint for an offence to be tried before a magistrate (summarily) must be laid within 6 months (s26Justices Act) although that period can be extended in certain circumstances. Other Acts stipulate longer time limits.

Sentencing

Factors relevant to sentence are many and varied and include but are not limited to the following considerations:-

  • prior criminal history;
  • age;
  • circumstances of the offence and motive for the commission of the offence;
  • background and personal circumstances of the offender;
  • prospects of the offender being rehabilitated;
  • personal deterrence;
  • general deterrence;
  • retribution

These factors have the potential to significantly influence a sentence. Often the judge or magistrate will require written medical, psychiatric or pre-sentence reports before they can sentence the offender. Witnesses may also be called to give oral evidence or victims can tender Victim Impact Statements for the court to consider in determining a sentence. Judges and magistrates may be subject to enactments relating specifically to the offence - for example minimum disqualification and minimum fine provisions in the Road Safety (Alcohol and Drugs Act) 1970.

Sentencing therefore is a finely balanced consideration of many issues and has been described as being an art rather than a science. Whilst sentences imposed for similar crimes and offences are relevant in determining the appropriate sentence, it should be noted that no two persons and no two crimes are the same.

The Sentencing Act 1997 was enacted essentially to amend and consolidate the law relating to the sentencing of offenders in the state of Tasmania. The principles espoused in the Sentencing Act are applicable to the Supreme Court and the Magistrates Court.

Sentencing is much more complicated than you would think. Not only are there fines, community service, sentences of imprisonment, or suspended sentences of imprisonment to consider there are also therapeutic sentencing options available to a justice in deciding a sentence. For example, a person may have committed an offence because of drug problems. The court can decide to divert the offender to a Court Mandated Drug Diversion Program, or make a Drug Treatment Order (s27C, Sentencing Act 1997). A person could be suffering from a mental illness, in which case a Mental Health Diversion List Program is also a sentencing option. These are known as ‘therapeutic jurisprudence’ options, and focus more on rehabilitation than punishment.

Appearing in Court

Criminal Penalties for Indictable Offences

The Sentencing Act 1997 (Tas) (s7) sets out the sentencing options which courts can impose.

Imprisonment

The Criminal Code 1924 (Tas) does not set out specific penalties for particular crimes. Section 389 of the Code provides for the punishment of any crime by a period of imprisonment of up to 21 years or by fine. In practice, the courts have developed an informal scale of penalties for particular crimes. In a case of murder a life sentence is the maximum penalty. The Supreme Court can also impose any other penalties available under the Sentencing Act such as probation, community service orders and suspended sentences.

Where the court does not state the commencing date of a sentence, it takes effect from the day on which it is passed by the judge. The judge will be told what date the accused was first taken into custody, and normally orders that the sentence commence from that date.

If an accused is convicted of more than one offence, there are separate sentences for each offence and the judge generally orders that the sentences be served at the same time (‘concurrently’). The judge may, however, increase the time the accused will spend in prison by directing that the sentences be served one after the other (‘cumulatively’).

The court may (although it is rare) declare a person, with previous convictions, who has been convicted of a violent crime, to be a dangerous criminal. That person is then to be detained during the Governor's pleasure (Sentencing Act, s19).

Normally the section of the Act which creates an offence, also lays down the maximum period of imprisonment. The magistrate is able to impose a lesser period of imprisonment than this maximum (which is normally reserved for the worst type of conduct which could constitute the offence). Generally, magistrates are dealing with Acts that only allow them to impose up to one year's imprisonment for a first offence (five years for a second or subsequent offence). Exceptions are drug cases and indictable offences dealt with summarily under the Justices Act, where up to two years' imprisonment can be imposed by magistrates. Three years imprisonment can be imposed in cases of motor vehicle stealing.

The magistrate may direct that a sentence of imprisonment not commence until the defendant has completed a term of imprisonment which is already being served.  Sentences of imprisonment may be either concurrent (to be served at the same time) or consecutive or cumulative (to be served one after the other).

Adjournments with Conditions

Under the Sentencing Act (s7(f)) a court may release a defendant and adjourn the proceedings for a period up to five years on the defendant’s giving an undertaking with conditions attached.  Conditions for adjournments are:

  • that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;
  • that the offender must be of good behaviour during the period of the adjournment;
  • that the offender must observe any conditions imposed by the court (s59).

If the person doesn’t comply with the conditions, they will be called up before the court and the original matter will be reconsidered. At the hearing of the breach the prosecution will have to prove both the fact of the original offence, as well as proving the breach. After hearing evidence of the breach and any evidence that the defendant may call, the magistrate may decide either to take no action, or to impose a sentence for the original offence.

Suspended Sentences/Combined Sentences

Where a sentence of imprisonment has been imposed, this may be suspended with conditions.  If the conditions of a suspended sentence are breached, the most usual course is for the court to order that the sentence take effect, but a shorter term of imprisonment or any other sentence that could have been imposed for the original offence may be imposed (though not a longer sentence than the one suspended) (Sentencing Act, s27).

Probation

A probation order places the defendant under the supervision of a probation officer for up to three years. This means that a probation officer will maintain contact with the person to ensure that their living and work arrangements and other aspects of that person's life are satisfactory. The defendant should tell the probation officer of changes of address, work and such like circumstances.

Conditions of probation orders are similar to those for community service orders.

In addition, the offender must if directed to by the court or probation officer: attend educational and other programs; undergo assessment and treatment for alcohol or drug dependency; submit to testing for alcohol or drug use; and submit to medical, psychological or psychiatric assessment or treatment. Breaches of a probation order are similar to those for breaches of a community service order.

Community Service Orders

Instead of sentencing a defendant to prison, a magistrate may order that the defendant carry out some unpaid work, service or activity, up to a maximum of 240 hours (10 days). These are known as ‘community service orders’ or ‘work orders’. This sentencing option is only available where an officer from the Community Corrections Service reports that work is available in the defendant's area, and that the defendant is a suitable person for such an order.

The conditions for a community order are that:

  • the person must not commit any offences punishable by imprisonment while on the order;
  • they must report within a day to a probation officer or supervisor;
  • they must satisfactorily perform the community service and comply with the reasonable directions of a probation officer or supervisor;
  • they must give notification to a probation officer of any change of address or employment within two clear working days;
  • they mustn’t leave Tasmania without permission;
  • they must attend educational and other programs as directed by a probation officer (time spent on any such program is counted towards the community service) (Sentencing Act, s28).

Failure to comply with a community service order can lead to a fine being imposed not exceeding 10 penalty units or imprisonment not exceeding 3 months. In addition the community service order might be increased or the person may be re-sentenced for the original offence

Fines

Fines, restitution orders and compensation orders can all be imposed, although the court will look at the offender’s ability to pay before imposing all of these (Sentencing Act, s43).
Fines are collected by the Magistrates Court (including those imposed by the Supreme Court) (Sentencing Act, s45). Time will usually be allowed to pay or the fine may be paid through instalments.

If the fine is not paid when it is due, the fine may be treated like a civil debt by the Magistrates Court (Civil Division) which means that the person’s assets may be seized (Sentencing Act, s53).

Alternatively a warrant might be issued and when the person is brought before the court, a range of other sentencing options may be looked at. One option is imprisonment and if the person fails to pay the fine, they may be imprisoned for one day for each penalty unit of the fine. In this case they will be brought before the court on a warrant of apprehension. Continued failure will mean that a warrant of commitment is issued. This means the person goes straight to jail to serve out the fine unless they can pay off the fine on the spot.

However it is usual for fine defaulters to be given a further chance to pay the fine before being jailed. The fine may be changed into a community service order at the rate of 7 hours for each prescribed unit. A defendant who is having difficulty paying a fine should ask for time to pay at the Monetary Penalties Enforcement Unit or apply to the Clerk of the Court at the court where the fine was imposed. The Monetary Penalties Enforcement Unit can be contacted on 1300 366 776 or by email at fines@justice.tas.gov.au.

No Conviction Recorded

Where the court thinks that a charge is proved, but considers that the offender, because of their character, antecedents, age, health or mental condition (or because of the trivial nature of the offence, or its extenuating circumstances) should not be punished or be only nominally punished, the magistrate may, without proceeding to a conviction, make an order either dismissing the charge or adjourn the case with conditions (see above) (Sentencing Act, s7(h)). Such a finding is very important, because it does not have the effect of a conviction.

Restitution

A magistrate may order a defendant to restore stolen goods to the victim, either that person’s goods or the equivalent money value (s65). Similarly the court may order the defendant to pay compensation for injury or loss sustained by a person through the defendant's act of burglary, stealing or damage to property (s68).

Area Restriction Order

An area restriction order is an order of the court that a person must not loiter in an area during such times as are specified in the order.

Court Costs

Court costs are usually imposed on a defendant if they plead, or are found guilty, of an offence. These may be 'remitted' in case of especially needy circumstances. Where a charge is brought by a private person (including an officer from a government department), the defendant may have to pay legal costs if found guilty.

A defendant, whether convicted or successful in their defence, may also apply for an order of costs against the prosecutor under the Costs in Criminal Cases Act 1976 (Tas). A certificate may be given if the magistrate finds that on or before the commencement of proceedings, the prosecution had sufficient material available to indicate that it was not reasonable to proceed, and that any act or omission of the defendant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances. If these costs are not paid, the informant can be imprisoned for one day for each penalty unit of costs ordered. This is particularly relevant to private prosecutions.

Appeals in the Supreme Court

A person who has been convicted by a jury, or has pleaded guilty and been sentenced by a Supreme Court judge, has a right of appeal to the Court of Criminal Appeal. The appeal must be made on one of the following grounds:

  • against conviction on any ground which only involves a question of law;
  • with the leave of the court, against conviction on any ground which involves a question of fact, or mixed law and fact, or some other sufficient ground of appeal;
  • with the leave of the court, against the sentence passed (Criminal Codes401).

The notice of appeal must be lodged with the Court of Criminal Appeal within fourteen days of the date of conviction or sentence. If an appeal is not lodged within fourteen days, an application will have to be made to the Court of Criminal Appeal for an extension of time to appeal. An appellant is generally entitled to be present at the appeal. The grounds of appeal which will be relied on must be lodged with the court.

Appeal against Conviction

An appellant is not able to have the matter completely re-heard by the appeal court, as is sometimes the case with appeals from magistrates.

The appellant must convince the Court of Criminal Appeal that:

  • the jury's verdict should be set aside as unreasonable or unable to be supported; or
  • there was a wrong decision on a question of law; or
  • there was a miscarriage of justice on any ground.

Even if the court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred.

The appeal will generally be decided on issues arising from the transcript of the evidence at the trial, but if the appellant has fresh evidence, this should be placed before the court in the form of affidavits from witnesses saying what they would say if called in a new trial.

Appeal Against Sentence

If the Court of Criminal Appeal agrees that the sentence is too severe, it may reduce it. The court also has the power to increase the sentence if it takes the opposite view. It should also be noted that the Crown can appeal against the sentence imposed by the trial judge if it thinks it was too lenient. The court can increase the sentence if it thinks fit.

Dangers in Appealing

There are two reasons why an appellant in jail should be careful about appealing.

  • A sentence can be increased by an appeal court
  • The time spent in jail waiting for the appeal to be heard does not necessarily count towards the sentence.
  • It may be several months before the appeal is heard, and an appellant held in custody will be ineligible for various programs arranged by the prison.

The Hearing

The appeal is heard by a single supreme court judge. There may be a number of appearances for ‘mention’ before a hearing finally takes place, though most appeals are heard about four to twelve weeks after the appeal is lodged.

The appeal will usually consist of submissions (that is, argument) made by the appellant or their lawyer to the court followed by submissions in reply from the Crown. The judge will then have to decide the appeal. Decisions are frequently ‘reserved’ to allow the judge to carefully consider all the issues.

A further appeal can be made to the Full Court of the Supreme Court against a decision made by a single judge. From there, an appeal can lie on a point of law to the High Court, but only with permission (special leave) from the High Court.

Coroner's Court

When an unnatural death or unexplained fire occurs, it is the practice for a coroner to hold a coroner's inquest. The coroner will also hold an inquest when informed by a police officer that a person has died within 24 hours after being given an anaesthetic during an operation, or has died in a mental hospital or prison. The purpose of the inquest is to determine the manner and cause of the death and to decide whether a  prima facie case exists against a person for an indictable offence arising out of the incident.

Coroners sit in the Coroner's Court (part of the Magistrate’s Court) but they are not bound by the normal rules of procedure and evidence. If the coroner decides that a prima facie case exists against any person for an indictable offence, they may commit the person for trial in the Supreme Court. The Director of Public Prosecutions may then decide whether or not an indictment will be laid.

In Tasmania this is rarely done. If there is good cause to believe that the death was caused by a crime, it is usual practice to charge the person, and to hold committal proceedings before the inquest is concluded.

Legal Representation

If the defendant is not legally represented they should ask the magistrate to adjourn the matter so that they can obtain legal advice.

Defendants who cannot afford legal advice can seek legal aid through their private solicitor or go to the Legal Aid Commission Office. Defendants can contact the Duty Solicitors who are usually present at Court of Petty Sessions.  There are court volunteers present in some centres. Community Legal Services can also offer limited assistance.

Offences

What is a Summary Offence?

Most criminal charges are summary offences heard by magistrates sitting in the Magistrates Court (Criminal Division) commonly called the Court of Petty Sessions.  A summary offence is one which can be heard by a magistrate. Set out below is an outline of what happens when a person is charged with a summary offence.

What is an Indictable Offence?

An indictable offence is a more serious offence than a summary offence. Indictable offences are usually tried before the Supreme Court in a jury trial. There are some indictable offences that can be dealt with summarily (by a magistrate). See Indictable Offences.

Offences tried by Judge and Jury: Indictable Offences

Preparation for the Trial

Deciding the Charge

If a defendant is committed for trial and is released on bail, they may have to wait up to six months before the trial starts. If they are held in custody, there may be a wait of two to three months. The minimum period is 7 weeks.

The depositions are sent to the Crown, who arranges for a Crown Prosecutor to consider it and decide whether the case should go to trial, and if so, what the ‘indictment’ (the formal charge) should be. If the Crown Prosecutor thinks the case should go to trial, the Prosecutor may file an indictment for the charge on which the defendant was committed. Alternatively, they may add other charges or substitute an entirely different charge. This process is called ‘finding a bill’ (of indictment) against the defendant.

If the case is weak

If the Crown Prosecutor considers that the case is not sufficiently strong against the defendant, they will recommend (to the Director of Public Prosecutions) that no bill of indictment be found. The Director of Public Prosecutions will normally support this recommendation.

New Evidence

The defendant is entitled to know if the prosecution intends to call witnesses who were not called at the committal hearing, or if they intend to change the charges. When the Crown intends to call a new witness, they will send to the defendant a copy of the statement made by the witness, so the defendant can prepare a case.

Trial Before a Jury

The defendant will be bailed or remanded to the first day of the next sittings of the Supreme Court in Hobart, Launceston or Burnie. If the trial is to proceed, it will rarely, if ever, commence on that day, and a new date will be fixed for attendance.

The case will be listed for 10 a.m. on the day of the hearing. When the case is called on for hearing (not necessarily at 10 a.m.), the person charged (the accused) is placed in the dock, and the Crown Prosecutor presents an indictment (this is the written accusation made against the accused). The indictment is read out to the accused who is asked to plead. If the accused pleads ‘guilty’, there is no need for the jury, and the judge considers what sentence to give the accused. If the accused pleads ‘not guilty’, the jury is chosen and ‘empanelled’. A jury of 12 people is empanelled, out of about 50 people who are summoned to the court. Their names are chosen at random from a box, and both the accused and the prosecution have the right to refuse (‘challenge’) the juror. The prosecution can challenge without having to give a reason for rejecting the juror. The defence (where there is only one person accused) can only challenge six jurors without a reason. Where there are more than one accused, each accused has six challenges without having to give a reason. (A ‘reason’ for challenging might be that the potential juror is a neighbour or is otherwise known to the accused). The defence lawyer will consult with the accused before challenging.

After the jury has been empanelled, the trial commences. The Crown Prosecutor makes an opening statement to the jury, and then calls the prosecution witnesses one by one. The accused's lawyer may cross-examine the witnesses. At the end of the prosecution case, if it is appropriate, the lawyer for the accused may submit that the judge should direct the jury to acquit on the basis that there is no case to answer. If this submission does not succeed, the accused's lawyer may call evidence, both from the accused and from any other witnesses.  The accused can go into the witness box to give evidence on oath and be cross-examined. Alternatively, the accused can remain silent.

After all the evidence is given, both the Crown Prosecutor and the accused's lawyer address the jury. The judge then sums up the case for the jury, explains and rules upon any matters of law, and the jury retires to consider its verdict. The jury returns to the courtroom, and the foreperson gives the jury's verdict. This verdict must be unanimous up until a jury has deliberated for a period of 2 hours. After that time a verdict of either guilty or not guilty can still be taken by a majority verdict of ten or more jurors, except for murder which requires 6 hours deliberation by a jury before a majority verdict is permitted.

After an accused has pleaded guilty to, or been found guilty of, an indictable offence, the judge hears evidence of the accused's character and background and previous criminal convictions before passing sentence. A pre-sentence report may have been prepared by a probation officer. The accused will then be asked if there is anything they want to say. The accused's lawyer may make submissions as to sentence, and if necessary may call character or other witnesses relevant to sentence. If desirable, the court will order a pre-sentence report, and/or a drug/alcohol dependency report before considering what sentence is to be imposed.

Preliminary Proceedings

As explained above, summary offences are generally the less serious offences, which are normally heard and decided by a single magistrate in a Court of Petty Sessions.

The more serious offences are generally heard before a judge and jury in the Supreme Court, and are called ‘indictable’ offences.

Preliminary proceedings are governed by the Justices Act 1959. They take place in a Court of Petty Sessions at the Magistrates Court. Preliminary proceedings are intended to help streamline the process of trial by directing a defendant into the appropriate proceeding. At the preliminary proceedings, the defendant can plead guilty or not guilty, and if the type of offence permits, elect either a summary trial or a trial before a jury. If the defendant pleads guilty, the next appearance will be for sentence. If the defendant pleads not guilty, s/he will either be directed into a summary trial or a jury trial, depending on the offence.

‘Guilty’ Pleas

If a defendant pleads guilty to an indictable offence, (other than one that can be dealt with by the Magistrate’s Court) the plea must be endorsed on the complaint, and the person will be committed to the Supreme Court for sentence (Justices Act, s60(1)). Under some circumstances, a magistrate has the power to commit a person, convicted summarily, to the Supreme Court for sentence (s72B(2)).

Alibi Evidence

Defendants charged with an indictable offence are required to give notice in advance if they are going to rely upon alibi evidence in defence. The defendant must include particulars of the alibi, and the name and address of any person proposed to be called in support of the alibi (Criminal Code, s368A).

Record of the Hearing

The evidence of the witnesses at the preliminary proceedings is recorded and typed up in documents known as ‘depositions’. A free copy of these depositions is available from the Crown for the accused to use at the trial.

Indictable Offences dealt with Summarily

Special rules apply to certain indictable offences which enable them to be dealt with summarily. They fall into two groups: those where the offence may be dealt with summarily without the accused's consent, and those where the accused's consent is required.

Indictable offences (such as stealing, killing of animals with intent to steal, false pretences and receiving) must be dealt with summarily without the defendant's consent if the amount of money or value of the property involved does not exceed $5,000, though a magistrate can still decide that in special circumstances they should go before a jury. (Justices Act, s71).

Certain other indictable crimes may be dealt with summarily with the consent of the defendant. These include escape, harbouring offenders and the making of false declarations. If the accused does consent, the case will proceed as with other summary offences.

Special provisions apply to children who are dealt with under the Youth Justice Act or persons under the age of 18 who are appearing jointly with an adult offender (Youth Justice Act 1997 (Tas)).
In making the choice to have the magistrate decide the matter rather than to go before a judge and jury, the defendant should take into account the following factors:

  • the chances of an acquittal may be higher before a jury than before a magistrate;
  • the defence may be better able to present its case before a jury, being able to rely on the evidence given in the committal proceedings;
  • if the accused is convicted by a magistrate, there may be a second chance through an appeal to the Supreme Court;
  • the penalties a magistrate can impose are lower than those that a judge can impose after a jury trial.

Laying A Charge

An indictable offence is a more serious offence than a summary offence. Indictable offences are usually tried before the Supreme Court in a jury trial. There are some indictable offences that can be dealth with summarily (by a magistrate). See Indictable Offences.

Deciding to Prosecute

Although it may appear that a person is at first sight guilty of an offence, the police officer may decide not to go on with the charges because of any one of a number of reasons including:

  • the old age, or youth, or illness of the offender;
  • the offender's willingness to give evidence against someone else;
  • the fact that the relevant law is obsolete, or unpopular, or controversial; or
  • the breach of the law was only technical or trivial.

Bringing the Defendant to Court

For court proceedings to commence the defendant must first appear before the court. Arrest is one method of getting the accused to court. Another is by way of summons, especially in traffic offences, taxation offences and breaches of local government provisions. In these cases, the defendant is served with a summons giving the date the matter is to be listed before the court. A summons is normally served by a police officer, who either gives it personally to the person to whom it is directed, or leaves it with someone else at the person's last, or most usual, address.

Instead of a summons, a warrant may be issued empowering police to arrest a person and bring them before a court. This usually happens when the offence is so serious that it is feared they will disappear if only a summons is issued, or if the person's address is not known, or they have disobeyed a summons before.

The above procedure applies to both adult courts and Youth Justice Courts.

Details of Charges

Defendants should be given enough information about the alleged offence (particulars) to enable them to conduct their defence properly. For example, in dangerous driving cases, defendants should be given details of the exact time and place of the alleged offence and in what way the driving was supposed to be dangerous. Police may be reluctant to provide these particulars, but should produce them if requested. This should be done in writing so that evidence of the request, if refused, can be produced in court.

Under Tasmania Police policy, a defendant may obtain a copy of the prosecution brief prior to the commencement of the case.  Additional information may be available under right to information legislation. A Right to Information Unit exists within Tasmania Police headquarters.

In Court

Courts of Petty Sessions sit every weekday in major centres. A Court also sits less frequently in country centres, usually at council chambers. Cases are conducted before a magistrate who sits at a raised bench at the front of the court. Most criminal cases are the result of police action, and the case for the police is presented by a police prosecutor (normally not uniformed) from a large table called the bar table in front of the magistrate. A clerk usually sits below the magistrate recording the proceedings. The proceedings are tape-recorded. Court hearings for summary offences must be heard in public except where a child or young person is concerned. The court can, in special circumstances , sit in a closed court from which the public are excluded (Justices Act 1959 (Tas)s37).

If the defendant is represented by a lawyer, the lawyer will sit at the bar table, and the defendant will sit next to the lawyer. Unrepresented defendants have a chair placed for them near the bar table, facing the magistrate. It is usual for a defendant in custody to remain in the dock (a closed box in the middle or back of most courts) even if unrepresented.

First Appearance in Court

If a person has been arrested and charged with an offence, they will have to appear personally before the court when the matter is listed. This is normally on the day they are charged, or the next day. This applies even if the person is represented by a lawyer at the first hearing.

A person who is summonsed to appear before a Court of Petty Sessions must appear personally even if a lawyer appears on their behalf. If no appearance at all is made, the magistrate may issue an arrest warrant or hear the case in the person's absence (Justices Rules 2003 (Tas)rule 32).

On the first appearance in court, the charge is read out. The defendant cannot be made to enter a plea (that is, say whether they are guilty or not) at this stage, and certainly should not plead unless they have legal advice to do so. A defendant should seek legal advice before this first appearance if possible.

Magistrates Courts now operates an ‘Adjournment Court’ between 9.30 and 10 am for first appearance matters.

If the defendant wishes to plead not guilty and defend the charge, the case will be adjourned to another date. The prosecution will not be ready with witnesses on the first appearance. Also, the court will not have time to hear the case that day.

Adjournments

When a defendant first appears in court, the case will normally be adjourned for at least two to four weeks so that the defendant can obtain legal advice. If this is done, the case will be listed on the adjourned date as being for ‘plea’, meaning that the magistrate will hear it on that date if the defendant pleads guilty. Otherwise the case will only be ‘mentioned’ on that date in order to obtain a date for a full hearing. The magistrate has a general power, either before or during the hearing, to adjourn cases. Cases may be adjourned for any reasonable period, whether the defendant consents or not.

When the case is adjourned to another day for hearing, the defendant will have to appear personally on the adjourned date. If the case is merely to be ‘mentioned’, it may be possible, with a less serious charge, for the defendant not to attend, provided the prosecutor does not object.

Plea of Guilty

Most charges are dealt with as a plea of guilty. This is where the defendant admits to the charge. Often this happens after negotiations with prosecution (normally through a lawyer). This may result in a more serious charge being dropped and replaced with a less serious charge. In this case the original complaint may be withdrawn and a new complaint filed in the court. In other cases the particulars, or other circumstances of the charge are changed so that the charge will be treated less seriously. Where there are multiple charges, some may be dropped in exchange for a plea of guilty to the remaining charges. In this case the prosecution will ‘tender no evidence’ on the charges to be dropped and they will be ‘dismissed’.

The procedure is then the same as after a plea of guilty.

If the defendant pleads ‘guilty’, the magistrate will first call on the police prosecutor to outline the facts of the case. The prosecutor may make these facts available before court commences and they should be checked for accuracy by the defendant (or a lawyer) before they are read or given in evidence. These facts will be presented by the prosecutor who is in charge of the matter. Information may also be given by the prosecutor or the police officer about the defendant's ‘antecedents’, that is, their age, marital status and occupation, though this is usually done by the defendant (or their lawyer) in the ‘plea of mitigation’. The prosecutor will inform the magistrate of any prior convictions recorded against the defendant after checking those for accuracy with the defendant.

If the defendant seriously disputes any of the facts as stated by the prosecution the magistrate must hear sworn evidence and resolve the conflict. Such conflicts are better resolved beforehand.

The magistrate will then call on the defendant, or the defendant's lawyer, to present any facts in mitigation (lessening) of the offence. The defence may hand up to the magistrate references of the defendant's character. The defence can call witnesses to the defendant's good character or to explain the circumstances that led to the offence, or the defendant can give evidence about this and any other mitigating circumstances.

If a probation officer or parole officer has been involved with supervising the defendant, they may be asked to prepare a report for the court and be available to answer questions. In most cases where imprisonment is being considered as a possible option, the magistrate will ask that a pre-sentence report be obtained to help determine the appropriate sentence. If this report is not available to the court, the case will normally have to be adjourned for between two and six weeks for it to be obtained. At the conclusion, the defendant or their lawyer will address the magistrate on why a severe penalty should not be imposed, and as to the most appropriate penalty for the individual defendant. The prosecution has the power to address on sentence, but rarely uses it. The magistrate will then give a decision.

Evidence

The Evidence Act 2001 (Tas) commenced in 2002. Evidence covers all the information given directly to the court by a witness or in the form of documents and of which the court takes notice because it complies with the ‘rules of evidence. The rules are as follows:

Relevance

One of the requirements is that evidence must be relevant to the issue being tried. For instance, when a person is charged with theft from a house, it would be a relevant fact that their finger-prints were found on the windowsill of the house, whereas it would be considered irrelevant that they often consumed too much alcohol, or came from a family of thieves.

Hearsay Evidence

A witness will be asked to tell the court only what they saw or heard, not what someone else told them occurred (hearsay evidence). For example, a witness can say, ‘I saw X walk over and punch Y on the jaw’, but not, ‘I wasn't there at the time, but B told me that he saw X walk over and punch Y on the jaw’. Whether a particular piece of evidence is hearsay or not is often a difficult question. It is a complex area of law subject to many exceptions at common law and under the Evidence Act.

Opinion Evidence

In general, the opinion of a witness is not admissible unless the witness is an expert in the field on which the opinion is given. Thus, a doctor may be able to give an opinion on whether a particular blow may have caused the death of a person, while a non-medical witness cannot give such an opinion as evidence. Lay witnesses are able to give evidence on matters for which the ordinary experience of everyday life is sufficient, for example, speed of a vehicle, weather, handwriting, general identity and whether or not a person seemed drunk.

Character Evidence

Generally, the prosecution cannot ask a defendant questions which tend to show that they are a person of bad character, or have committed other offences. But if the defendant, or their lawyer, attempts to attack the character of a prosecution witness by showing bad conduct by that witness the court may in turn allow the defendant (if they give evidence) to be questioned about their own bad character or conduct (Evidence Act, s104(4)). The defendant is entitled to raise their good character as an issue at their trial and to have such evidence taken into account on the question of their guilt or innocence. If they do so, however, the prosecution can call evidence which would tend to show that the defendant is of bad character if this is the case. A decision to attack the character of prosecution witnesses or positively raise the good character of the defendant always needs careful consideration.

Confessions

Evidence is often given that the defendant made an admission or confession of guilt. The evidence may be of a conversation in which the defendant verbally confessed, or it may be a written record of questions asked by a police officer and answers given by the defendant (that is, ‘a record of interview’). In the case of serious offences, the interview of the defendant by police must be electronically recorded, usually by video. Any confession must be made freely and voluntarily for it to be admissible in evidence. It may not be admitted if it was induced by a threat or promise or an untrue representation made by the prosecutor or some person in authority.

The defence may object to the admissibility of a record of interview on this ground, and the magistrate will consider whether to admit it as voluntary or not. Even if the magistrate decides that the confession is voluntary, they may exclude it if it would be unfair to the defendant to admit it. The magistrate may also exclude the confession on the grounds of public policy. This involves weighing up the public interest in having offenders convicted, against the public interest in discouraging police officers from engaging in unlawful conduct during the investigation of a crime.

Procedure for Defended Hearings

Prosecution and Defence

If the defendant pleads ‘not guilty’ the case will be listed as a defended hearing.

The Prosecution Case

On the day of the hearing, the magistrate will first call on the police prosecutor (when the charge has been laid by the police and not by a private citizen) to present the case for the prosecution. The prosecutor normally does not make an opening statement, but calls on the police witnesses and other witnesses to give their evidence one by one. Each witness enters the witness box near the magistrate, and is required to take an oath on a bible, or an affirmation to tell the truth (Justices Act 1959 (Tas), s39). The prosecutor then asks the witness questions (called ‘evidence in chief’).

When the prosecutor is finished, the defendant (or their lawyer if represented) is entitled to ask questions in ‘cross-examination’. The magistrate will decide whether questions asked by either side are permissible in terms of the rules of evidence for criminal court hearings.

The Defence Case

When all the witnesses for the prosecution have been heard, and the prosecution case has closed, the defendant may submit to the magistrate that they have no case to answer. In this submission, the defendant asks the magistrate to dismiss the prosecution's charge, without even hearing from the defendant, on the basis that the prosecution has not produced any evidence in law to support the charge. If the magistrate agrees with this submission, the charge will be dismissed and the case against the defendant will be over.

If the magistrate does not agree with this submission (if it is made), that there is no case to answer, the magistrate will call upon the defendant to present their case. The defendant may give evidence by going into the witness box, taking the oath or affirmation and answering any questions, asked firstly by their lawyer and then by the prosecutor in cross-examination.

The defendant cannot, however, be forced to give evidence. The defendant may also call witnesses who can give evidence. If the defence wishes to address the magistrate about the case, this should be done at the opening of the case. Neither side has a right to address the court at the close of the evidence without leave  (Justices Rules 2003 (Tas)rule 35(1)(f)).

Defences

There are a number of different defences available to the defendant. If appropriate, a defendant may rely on more than one defence as alternatives, but must be careful not to prejudice a good defence by throwing in weaker and conflicting defences. Some common examples of general defences are as follows.

Mens Rea

This is a Latin term meaning ‘guilty mind’. It is presumed to be an aspect of all offences unless displaced by the wording of the Act. Where the state of mind is an ingredient of the crime, such as murder, the prosecution has to prove not only that the defendant did the act, but also that they had a guilty mind (they knew the wrongfulness of the act). However the absence of mens rea is an aspect of defence.

For instance, in a case of fraud there must be the intention to defraud or recklessness. So in a case of social security fraud where the defendant has under-declared their income, the defence might be that the accused provided Centrelink with net earnings instead of gross earnings under the mistaken belief that this was what was required. If the court believes this, then the mental element necessary for fraud would not be made out.

Failure to identify the defendant

The prosecution may try to prove that it was the defendant who committed an offence by means of eye witnesses, identification parades, fingerprint evidence and handwriting evidence. The defendant will attempt to point out weaknesses in the prosecution’s evidence of identification.

Alibi

Alibi evidence is used to show that the defendant could not have been at the place where the offence is supposed to have been committed, because at the time they were somewhere else. This evidence may be given by the defendant and other witnesses on the defendant’s  behalf.

Intoxication (Drunkenness)

Being affected by alcohol or drugs is no defence to a serious crime unless the defendant was so intoxicated that they were incapable of reason, in which case a crime of specific intent such as murder may be reduced to manslaughter.  This is therefore a limited defence.  However, intoxication is relevant and admissible regarding minor offences where intent or knowledge on the part of the defendant is an element of the charge.

Mental illness

It is a defence that the defendant was mentally ill at the time of the alleged offence. However, the result of a successful defence on this ground is that the defendant is detained in a mental hospital ‘during the governor's pleasure’. Because of the serious consequences, mental illness is rarely raised as a defence, and only in the most grave cases such as murder. Expert medical evidence is necessary to establish this defence.

Provocation

Provocation can only be used as a defence to reduce the charge of murder to manslaughter. In any other case, it cannot be used as a defence, although it can be taken into account by the court after conviction when considering an appropriate penalty. Provocation is not a defence to a charge of assault.

Self-defence

A person may be entitled to use force to defend themself or another person or even their property from attack by someone else. In defence of property, the force used must be reasonable, an issue of fact for the court to determine. Raising a defence of self-defence for murder, it must be established that the defendant was assaulted with such force as to cause him/her to think they might be killed or suffer grievous bodily harm. However, in defence, for assault, it is what the accused believed upon reasonable grounds was necessary in self-defence.

Consent

In some cases of assault and sexual assault, it is a defence that the complainant consented to the alleged assault.

Necessity

Necessity may be raised as a defence where the act of the defendant was necessary to avert serious danger, and the action taken was in proportion to the danger which the defendant was trying to avert. The defence of necessity is approached by courts with considerable caution.

Duress

A defendant may raise the defence of duress where threats of immediate death or serious personal violence were so great as to overbear their resistance to  carrying out the criminal act. The overpowering of the defendant's will must have occurred at the time the criminal act was committed.

Infancy

Criminal responsibility of children is dealt with under Youth.

Failure to prove beyond reasonable doubt

The defendant may concentrate on putting the prosecution to the test of proving their case beyond reasonable doubt. The defence will attempt to show up any inconsistencies and shortcomings in the prosecution case.

The Prosecutor's Reply

When the defence case is closed, the prosecution may give evidence in reply to any new point raised in the defence case. This is called 'evidence in rebuttal' and is very rarely permitted.

The Court's Verdict

After all the evidence is heard, the two sides can only comment on the evidence with the leave of the court. Such leave will usually only be given where the evidence is complex or a complicated legal issue arises. After hearing all the evidence and these addresses, the magistrate has the duty, without referring to any other person or body, to decide the matter. In some cases, the magistrate may adjourn the case to consider the verdict, but normally the verdict will be given straight away.

If there is any reasonable doubt whether or not the defendant is guilty of the offence charged, the magistrate will dismiss the charge, and allow the defendant to go free. If, however, the magistrate is satisfied beyond reasonable doubt that the defendant is guilty they will find the offence proved and will then consider what penalty should be applied.

Appeals in the Magistrates Court

When to Appeal

An appeal may be made against a magistrate's decision to the Supreme Court. This can be done either against conviction or against the severity of the sentence. The appeal must be made within 21 days of conviction or sentence, though this period can be extended by making an application to the Supreme Court which satisfactorily explains the delay (s107, Justices Act 1959 (Tas)).

In special circumstances, the Supreme Court may grant a re-hearing (s111). In other circumstances, a case in the Court of Petty Sessions may be transferred to the Supreme Court as a ‘case stated’ if an important question of law is involved (s114).

Deciding Whether to Appeal

A defendant can appeal against conviction on either an error of fact (for example, that the evidence was wrongly interpreted) or on a question of law (for example, that the evidence could not legally justify conviction). Success may result in either the quashing of a conviction, or an order that the matter be re-heard properly by another magistrate. If the defendant does not wish to deny that they were properly convicted of the offence, but feel that the sentence given was too harsh, they can appeal against severity only. In this case, the hearing will be restricted to evidence and submissions which affect the sentence. If the defendant is in doubt about whether they should appeal against their conviction, or against the severity of their sentence only, they should get legal advice.

There are two drawbacks to appeals.

  • Persons appealing may be ordered to pay some costs if they lose their appeal. If the person appealing is concerned about that possibility, they should consult a lawyer.
  • A supreme court judge has the power to increase the sentence when hearing the appeal. They cannot give a longer sentence than the magistrate could have given under the particular Act, but they can give a sentence longer than the magistrate actually imposed.

How to Appeal

It is best to obtain legal assistance to make an appeal. A ‘notice to review’ is lodged with the Supreme Court, and copies are served on the Magistrates Court (Criminal Division) and the Director of Public Prosecutions who act on behalf of the police complainant. Where a penalty has been imposed by a magistrate, an application may have to be made to ‘stay’ that penalty pending the hearing of the appeal. This will involve, for instance, an application for suspension of a prison sentence or period of licence disqualification.

Legal Assistance

Legal Assistance Overview

 

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.

Court or Mediation?

In some cases the court process, rather than mediation, is the most appropriate way to sort out disputes. For example, some people want a magistrate to decide who is right or wrong, or they want lawyers to act for them, or they don't want to speak to the other party under any circumstances. (It should be emphasised that most people find mediation very helpful, but if it doesn't work the court system can still be used.)

Mediation is the most appropriate process for the settlement of a dispute if:

  • a person has a problem with another person and doesn’t want it to escalate so much that it has to go to court; or
  • there is a need to continue relating to the other person (for example, as neighbour, ex-spouse or family member) and wants the relationship to improve (or at least not deteriorate); or
  • the person can't (or doesn't want to) pay the costs incurred by court proceedings; and
  • wants to sort out the problem as peacefully, effectively and cheaply as possible.

Legal Help

Legal assistance provides access to the law for many people who would otherwise be unable to afford a lawyer to press their claims in court or assist them in other ways with legal problems. This work can be done either by lawyers on a salary employed by a government-funded agency, or by private solicitors who are paid to represent clients for particular cases.

There are a number of agencies which provide legal assistance in one form or another — the Legal Aid Commission of Tasmania, community legal centres, Environmental Defenders’ office, the Tenants’ Union, the Women’s Legal Service, and the Aboriginal Legal Service. At first glance, the legal aid system seems very complicated. However, each of these agencies is aware of the services offered by the others and can readily refer people to the right place when contacted. The services provided by each of these agencies are described here.
 

Alternatives to Lawyers and Courts

Going to court (or litigation) to resolve a dispute is often costly and/or time consuming. With civl matters – such as property issues, family law, or issues around money, there are alternatives to lawyers and courts. Going to court will mean there is a winner and a loser.

The loser is required to pay the winner's costs. Usually it also means the involvement of lawyers and the feeling of loss of control as legal processes and concepts take over the dispute. It is these features of the traditional litigious model of resolving disputes that has lead to an increasing demand for less ‘adversarial’ (or party against party) ways of achieving that result.

This is known as ‘alternative dispute resolution’.

Alternative Dispute Resolution

This term is used to describe methods of dispute resolution that are alternative to going to court. Alternative dispute resolution includes arbitration, conciliation and mediation. Each of these processes differs in the amount of control exercised by the disputants over the outcome.

Mediation

This is a process in which the parties, together with a neutral third person or persons, identify and isolate disputed issues, develop alternatives for their solution, consider options and reach a mutual agreement that will meet the disputants' needs.

Arbitration

In this process a neutral third party, often chosen by the disputants, is selected or appointed to hear both sides of the argument. The arbitrator then makes a decision by which both parties have agreed to be bound.

Conciliation

This is a vague term. It describes a process which also includes a third party who helps the disputing parties to reach agreement. It emphasises an outcome of 'reconciliation'. Conciliation counselling can include mediation and negotiation.

Negotiation

This is a process which can be part of all of the above. It involves bargaining between the parties. Of these processes, mediation will be discussed in further detail because several mediation services have been established in Tasmania and can be used by the general public.

Mediation

Overview

Mediation involves discussing the problem with the other disputant in the presence of mediators. The mediators are neutral and objective. They will act as facilitators to help the parties find solutions themselves but, unlike a magistrate or judge, they don't make judgements about who is right or wrong, nor make decisions for the parties. They will help the people themselves follow the mediation process, a process that is becoming a powerful way of helping people work through conflict.

Many people think that they should be able to sort out their problems themselves (and many people can, especially after talking them over with a neutral third person), but sometimes:

  • emotions have become too intense, or would become so if the person tried to talk to the other person(s) alone;
  • the problem has got so out of hand that there doesn't seem to be any way to solve it;
  • the person doesn’t feel that their needs and point-of-view have been heard;
  • the person thinks they’ve done all they can and nothing seems to improve or resolve the situation.

In mediation the parties are helped to hear each other's side of the story, discuss and explore each person's needs, communicate more effectively, work out possible solutions to the problem and negotiate future actions. At the end of this process there is usually a written agreement drawn up. This is not legally binding, but it can be made so by a lawyer. It is, however, a morally binding document and a record of agreements which have been made.
 

Magistrates Court mediation

In the Magistrates Court, a mediation will bear upon later litigation, if the agreement reached in mediation is to define issues that are going to trial. There is a $300 fee for mediation in the civil division.

In the Minor Civil Claims division, mediation session is free. In order to settle a small claim without going to court, a ‘Settlement Agreement’ is a way of ending a mediation session without the added costs of litigation. A Settlement Agreement can be made into a ‘Consent Judgment’. If one side fails to comply with their side of the agreement a Consent Judgment is enforceable. Enforceable means that a bailiff can seize property from the non-complying party to auction in order to recoup the promised payment.

See generally the ‘Advice to Parties’ document provided by the Magistrates Court. 

Advantages of Mediation

Mediation is non-adversarial. It does not pit one side against another in a situation in which there must be a winner and a loser. As well as ending up with winners and losers, adversarial situations often create long-lasting bitterness. An example is a court battle over the custody of children. In order to ‘win’ for their client, lawyers sometimes need to use all the ‘dirt’ they can about the other parent. In the end, nobody gains, and the children often lose. It's hard to maintain a cordial, working relationship after an adversarial battle.

Mediations are private and confidential. Using mediators to help solve a problem isn't a sign of weakness — it is recognition that sometimes a neutral third party is needed to help the resolution process along.

Mediation teaches skills which can be used in future dealings with a whole range of people. It is an empowering process, that is, it helps people find ways to solve their own problems, now and in the future.

Mediation is a low cost and quick way to resolve conflicts. Mediation services are either free or they charge according to their clients' incomes. Mediations can be arranged within a few weeks of first contacting a service.

Mediation is flexible. Mediations can be arranged to suit mediator and parties working hours and time commitments.
 

Who Offers Mediation in Tasmania?

Mediation, or 'dispute resolution' is available through the Federal Circuit Court for family law matters, through the Tasmanian Magistrates Court for civil law issues, and also through the Supreme Court for civil law issues. There are a number of private and government organisations offering mediation in Tasmania.

The Legal Aid Commission provides a Referral List service that details Tasmanian mediators. 

How to Use a Mediation Service

Although the details vary between services, these are the general steps which are followed.

  • One of the parties (Party A) contacts the appropriate mediation service either by phone or in person.
  • An ‘intake’ worker will discuss the nature of the dispute with Party A in order to judge its suitability for mediation and to find out what action, if any, has been taken already. (In some cases a direct approach to the neighbour or ex-partner would be the most productive action, but it may be helpful to discuss the best way to go about this with a neutral third person).
  • If appropriate, contact will be made with the second party (Party B), usually by letter, inviting them to participate in mediation.
  • If the response from Party B is positive, a time for mediation will be arranged.

If Party B will not discuss the problem, most services offer an opportunity for Party A to discuss it alone and work out the best course of action.
 

The Law Society of Tasmania

The Law Society of Tasmania provides an internet search function to find a suitable lawyer according to practice area and location in Tasmania.

It also lists the law firms that exist in Tasmania, currently totalling 144 in all.

The Law Society cannot provide legal advice. It is handy to the public in providing a service to find a lawyer.

The Legal Aid Commission of Tasmania

The Legal Aid Commission of Tasmania (LACT) was established in Tasmania in 1991 under the Legal Aid Commission Act 1990 (Tas). The governing body of the Commission consists of representatives of the Commonwealth and State Governments, the private legal profession, a person qualified in financial management, community representatives, and the Director of the Commission.

The LACT has its headquarters in Hobart and has three regional offices in Launceston, Burnie and Devonport. These offices provide a number of different services at ‘first contact’ level. These are legal clinics, phone advice and the duty solicitor scheme. 

Eligibility for Legal Aid

To determine eligibility for legal aid, the Legal Aid Commission of Tasmania provides guidelines. This lists the various tests under which you can apply for legal aid, including the Forum Test, the Means Test, and Merits Test.

Solicitors representing low income clients can apply for legal aid for the client. You should ask your solicitor if they will work for legal aid funding.

Applying for Legal Aid

Applications can either be made through the Legal Aid centre, or through your lawyer. If you have a private lawyer, and not a legal aid lawyer you should ask whether they will apply for legal aid on your behalf.

Clinic Advice Service

The Hobart Office of the Legal Aid Commission of Tasmania runs a Clinic Advice Service, Monday to Friday from 10.30 am to 2.30 pm. Generally, if a person needs legal advice on a family or criminal matter they may attend clinic, or if they wish to find out if they are eligible for legal aid.

The Launceston Office provides a similar clinic service between 12 noon and 1.00 pm on Mondays, Wednesdays and Fridays of each week.

The Burnie Office’s clinic service operates between 12:30 pm and 1.30 pm on Tuesdays and Thursdays.

The Devonport Office’s clinics operate between 1:00 pm and 2:00 pm on Tuesdays and Thursdays.

This service is available to holders of current Health Care or Pension Cards.

If a person has a civil issue they should contact the telephone advice service.

Telephone Advice Service

Everyone can access free legal advice on the telephone advice service. The Hobart Office provides a dedicated phone advice service between 9 am and 5.00 pm each day on 1300 366 611 for the cost of a local call. 

Civil Cases: Civil Disbursement Fund

Generally, civil litigation will not attract legal aid, however there are exceptions with serious personal injury claims, workers compensation claims and professional negligence claims. This does not mean that other types of civil cases will not be considered. Under the Civil Disbursement Fund, Tasmanians who cannot afford to have their case heard before a Court can apply for funds to help pay up front disbursements, such as filing costs, and reports. If the case is won, the applicant must repay the money with a premium. Applications can be made through a lawyer, so speak to your lawyer about this. 

Duty Solicitor Scheme

The LACT operates a Duty Solicitor Scheme at the Magistrates Court at Hobart, Launceston, Burnie, Devonport, Smithton and Queenstown. There is an office at the Hobart Magistrates Court and the Duty Solicitor is available to undertake bail applications and other immediate assistance. There is also a duty solicitor at the Family Court/Federal Circuit Court to assist people who are involved in family law matters. Work undertaken by the Duty Solicitor is available if you have been arrested and wish to apply for bail, or if you are eligible for a grant of legal aid. 

Community Legal Services

Overview

Community legal centres (CLCs) provide free advice to help people sort out their legal problems, and are often a useful first contact point for people with a legal difficulty. CLCs not only give legal advice, but also work to change laws when they are unfair or unjust, and undertake community education to help people in the community understand their legal rights and responsibilities.

There are six CLCs in Tasmania. Of these, three provide a generalist service and are regionally located in Hobart, Launceston and Devonport, whilst the other three are smaller specialist services located in Hobart but with statewide coverage. They are a part of a network of over 160 CLCs, which operate throughout Australia.

The Tasmanian CLCs are funded solely by the Commonwealth Government, although the Tasmanian Government may provide some non-recurrent project funding from time to time. CLCs are ‘non-government organisations’, managed on a voluntary basis by locally-based committees annually elected from the agencies’ membership. They operate independently of the government sector.

General Assistance & Casework

CLCs offer free advice services, with some doing so in evenings as well as daytime. Some of the centres do not require appointments for their sessions, but it is always advisable to telephone first.

CLCs have developed a mode of operation which is quite distinct from Legal Aid Commissions on the one hand and the private legal profession on the other. CLCs have a wider conception of what is involved in legal assistance, and are conscious, in delivering their services, of the socio-economic dimensions of many legal problems, as well as the fact that it may often be preferable to pursue non-legal remedies to such problems. This normally means that both the non-legal and legal aspects of the client’s problem can be dealt with.

Clients are encouraged to work through a problem so they can better understand its wider circumstances, and reach a solution themselves if possible. For many CLC services there is no means test applied, and there is generally no contribution required.

Where necessary, a client will be referred to the Legal Aid Commission Tasmania (if eligible) or a private lawyer. In some cases, follow-up work is done by lawyers employed by the CLCs.

Community Legal Education

Although advice work is the basis of their operations, CLCs also direct a great deal of their resources to community legal education. This may take a variety of forms: brochures and other printed material (like this Handbook), videos, provision of speakers, dissemination of information via the internet or through websites, etc. CLCs should be contacted direct if a group would like a speaker to talk on a specific area of the law, or on the legal system generally.

All CLCs produce and/or carry a wide range of printed material on different areas of the law, including a series of brochures in the ‘Legal Information and Referral’ series, jointly produced by Tasmanian CLCs, the LACT and the Law Society.

The Hobart Community Legal Service produces this Handbook and other educational materials, including videos dealing with aspects of self-representation, and a website which provides up-to-date information on CLC services and contact points.

Law Reform & Advocacy

CLCs also have a philosophy that many of the problems faced by their clients are the result of unjust laws or unjust administration of the law, and that it is not enough to simply deal with these problems at the level of the individual.

CLCs have therefore taken up general issues of concern about the law in the community such as the lack of legal protection for consumers and residential tenants, anti-discrimination provisions, the rights of and protection for children and young people, and conditions in the state’s prisons.  The aim is to change the law or the way it is administered so that the problems generated by such injustices will be overcome.

The role of centres may take such forms as assisting community organisations in campaigns, participating in Parliamentary inquiries, writing submissions, canvassing specific amendments to legislation, lobbying Ministers, and so forth.  CLCs may also combine with other CLCs within a national network of action in pursuit of such legislative reforms.

Hobart Community Legal Service

This service conducts an evening advice service staffed by volunteer lawyers and community workers providing legal advice and referral sessions on Monday and Wednesday evenings between 6.00pm and 7.30pm.

The Service is open each weekday from 9.00am to 5.00pm, when its Child Support Solicitor provides assistance to parents who have the primary daily care and responsibility of children ('carer' parents), with child support or maintenance problems, and its Welfare Rights Advocate assists people in disputes with Centrelink over pension, benefit and allowance payments or eligibility.

The Service also provides advice and assistance on consumer credit and debt matters. It is active in the provision of community legal education and law reform campaigning and advocacy.

Hobart Community Legal Service also operates Sorrell and a Bridgewater Office. The Bridgewater Office provides a general legal advice and referral service to residents in the Bridgewater and Gagebrook areas. That Office is open weekdays from 9.30am to 1.30pm and at other times by appointment. The Office's solicitor makes regular visits to prison facilities, to provide general advice and assistance to prisoners.

Launceston Community Legal Centre

In addition to general legal advice and referral, this service also provides specialist legal services in Immigration, Welfare Rights, Disability Discrimination and Employment Law.  The last two services are state-wide. The Centre provides counselling and support services for Victims of Crime.

The service runs outreach services, giving general legal advice and assistance, in Scottsdale, Deloraine, Ravenswood, Rocherlea and Mowbray. It conducts workshops on legal issues as requested and join with others to conduct law reform campaigns.

North-West Community Legal Centre

This centre has a lawyer who gives advice about a range of legal matters, and provides a limited casework role. Consultations are by appointment, which may be made during office hours.

Centre staff are also available to arrange talks to groups on a number of legal issues.

Your Nearest CLC

CLCs operating in Tasmania offer a wide range of services, including free and confidential legal advice and referral.

The Hobart Community Legal Service, Launceston Community Legal Centre and North-West Community Legal Centre each offer a general legal service within their respective regions of the state.  The other three CLCs listed below offer statewide specialist legal services.

Environmental Defenders Office

The EDO is Tasmania's public interest community legal centre for the environment. The Office assists the public with free legal advice, help with environmental law research, environmental law reform, referral to other groups or agencies and community legal education. See Community and Environment.

Tenants Union of Tasmania

The Tenants Union operates on a part-time basis, and provides a free advice and advocacy service to people experiencing tenancy problems.

Telephone advice is available Monday — Friday, 9.30am—4pm (1 300 652 641).

Appointments are available Tuesday—Thursday, 9.30am—12.00pm.

See Tenancy.

Women's Legal Service

This service offers advice and referrals to women throughout Tasmania, initially via a Freecall number (1 800 68 24 68).

The Freecall advice line is staffed on Monday, Tuesday, Thursday and Friday, 10.00am—12.30pm and 1.30—3.30pm, and on Wednesdays, 6.00—8.00pm, or leave a message at other times or if engaged.

Face-to-face appointments are offered in Hobart and Launceston, and are made via the Freecall number.

Information and education sessions may be provided around the state to service providers and groups of women.

Consumer Advice Services

There are services available to consumers through the Department of Consumer Affairs and Fair Trading.

Often consumer issues tie in with other areas of the law, such as tenancy. Service Tasmania provides a list of websites, such as the Australian Competition and Consumer Commission (ACCC) website, where complaints can be made, or advice sought.

The Legal Profession

Overview

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.
 

The Regulatory Framework

Much of the legal system, especially the courts, depends on lawyers to make it work effectively. Public confidence in the competence and integrity of the legal profession is very important. This means that there are strict requirements for entry to the legal profession. There is also strict regulation of the way that lawyers deal with their clients and other lawyers. This is often called ‘professional ethics’. Much of this law is contained in the Legal Profession Act 2007 and the Rules of Practice 1994. The Law Society of Tasmania plays an important role in implementing the Act and Rules of Practice. Their Legal Profession Board can take complaints about a lawyer or practice.

The Law Society is the professional association of lawyers. All practising lawyers belong to it. It has extensive statutory powers to investigate the conduct of lawyers and take action against those who have erred. Any lawyer who wishes to practise must obtain a practising certificate from the Society each year. There are no compulsory continuing legal education requirements on lawyers in Tasmania, however there are voluntary events available through the Law Society to interested lawyers.

Qualifications to Practice

Lawyers practising in Tasmania must have a university law degree. Generally most students now complete combined degrees in Arts/Law, Economics/Law, Commerce/Law and Science/Law over five years. Completing a law degree in three years is notoriously difficult and labour intensive. To practise as lawyers graduates must then complete a six month ‘legal practice’ course. If this is completed in a state other than Tasmania, a would-be lawyer can apply for recognition of this training. The 12 month apprenticeship to a practising lawyer previously required after that training has been abolished.

To be admitted as a lawyer a person must be ‘a fit and proper person’. Admission as a practising lawyer involves taking oaths. These oaths are taken before a judge of the Supreme Court. Once admitted a lawyer's name is entered onto ‘the roll’ in the Supreme Court. A lawyer can be struck off the roll by the Supreme Court for serious malpractice.

A lawyer who practises without being admitted or not having a practising certificate commits offences. Lawyers must also be insured against professional negligence claims. A more detailed summary is available at the Supreme Court of Tasmania website.

 

Professional Conduct

Lawyers can advertise for business, particularly the areas of law in which they claim to specialise, though practices which are likely to bring lawyers or the legal system into ‘disrepute’ are not allowed. Lawyers must be competent in carrying out their work, complete work in a reasonable time and keep the client informed of significant developments.

Lawyers must not disclose any information to others acquired while handling the client’s work, without the client’s consent. A lawyer must disclose any interest they may have or conflict of interest. Lawyers can act for more than one person in relation to something but only if there is unlikely to be any conflict of interest. If a conflict does develop, a lawyer will be unable to continue to act for either client.

A lawyer must inform their client of any eligibility they may have for legal aid. A lawyer must also keep the legal aid agency (the Legal Aid Commission of Tasmania) informed if the client no longer has any reasonable prospect of succeeding in their case, or of any change in their financial circumstances. The client should be informed of any advice their lawyer will give the Commission.
 

Legal Profession Board

If a person has a complaint about the way a lawyer has dealt with their work they can contact the Legal Profession Board of Tasmania. The Legal Profession Board is a statutorily independent body. It is the sole body in Tasmania dealing with complaints against legal practitioners. It consists of six Board Members appointed by the Governor of Tasmania. 

Functions

The main role of the Legal Profession Board is to receive and resolve complaints about the conduct of lawyers. They can do so by:

  • Mediation
  • Intervention
  • A hearing – either to the Disciplinary Tribunal or the Supreme Court

The Board does not provide legal advice.

Complaints Against Legal Practitioners

Before the Legal Profession Board will take any action on a complaint, it will assess whether the complaint has substance. The complaint cannot be vexatious or frivolous, or misconceived. If the complaint has substance, the Board will investigate. There is no fee associated with making a complaint. There is also a set form on which a complaint must be made out. This form is available on the ‘making a complaint’ site, given above.

If the Legal Profession Board decides that a practitioner may be guilty of professional misconduct, it must prosecute the practitioner. This is done before the Disciplinary Tribunal or the Supreme Court.

Contacting the Legal Profession Board

http://www.lpbt.com.au/contact

Legal Remedies - Complaints against Lawyers

Types of Complaints

The nature of the complaint against a lawyer determines the remedy that may be obtained by the client. Complaints fall into four main categories: delay in handling work; poor quality of work; excessive fees; and incorrect handling of trust funds.

Another type of complaint is that the client has not been adequately informed of the progress of the work the lawyer is performing.

A client should not feel intimidated by the lawyer. A client has a right to know what their lawyer is doing on their behalf. It should be remembered, however, that lawyers can charge for all telephone calls and correspondence with a client, including those arising from a client’s enquiries about progress with their matter. One approach is to write a letter to the lawyer setting out specific questions about how the matter is progressing. If this approach is not successful, consideration should be given to making a complaint against the lawyer in question.

Delay

Lawyers often seem to take a long time to handle work. In some instances this is not their fault. The delay may result from other parties, government agencies or problems in getting matters heard in court because of a backlog of court cases. But there are instances where it is the lawyer who is at fault. It may be useful to raise the matter with the senior partner of the firm concerned.

Another possibility is to complain to the Legal Profession Board or the Office of Consumer Affairs and Fair Trading providing copies of the relevant papers. Where there is a serious delay causing damage or loss to the client, it may be possible to sue the lawyer for negligence.

This is particularly so with regard to court actions: in most instances there are time limits for bringing actions, providing defences or performing other stages in the court process. If these time limits are not observed, the client may lose the legal rights that they would otherwise have had.

Fees

This is a complicated area and what follows is simply the basics. Lawyers should generally explain at the outset how much a matter is going to cost, how this cost will be calculated, how often accounts will be given and any court costs scale which applies. Lawyers are obliged in court matters to provide clients with estimates of costs at periodical intervals. The Law Society has rules providing for advice to be given by lawyers to client's about costs as a matter progresses.

The Family Court also has rules about lawyers giving clients estimates of costs as matters progress. Clients can expect to receive estimates of their costs after they first see their lawyer and at periodical intervals as the matter progresses. Clients should always ask for details about costs when they first see a lawyer and if they do not receive details of cost estimates as the matter progresses then they should ask for them. If the cost estimates are not provided then the client can make a complaint with the Law Society and also, if the matter is a family law matter, with the Family Court. Often estimates will have to be revised because of factors outside a lawyer's control, but if this occurs the lawyer should keep the client advised.

Costs do not include out of pockets (often known as disbursements). Lawyers can charge for stamps, phone calls and faxes, photocopies, government charges, barrister's fees and medico-legal reports and any other out-of-pockets which are necessary or incurred with the client’s permission in the case of larger amounts. These should be shown separately on an account.

The Law Society has recommended scales in relation to many areas of law such as conveyancing and probate. Lawyers can charge a recommended scale where one is applicable and must enclose a copy of that scale with any account drawn to the scale where they do this. Lawyers can also charge a reasonable fee or make a written agreement (known as a costs agreement) with clients as to fees to be charged. Lawyers can charge less than the recommended scale though they do not generally advertise this in an obvious way. A person may have to ring around to get quotes.

A lawyer may charge a client in three main ways:

  • on the basis of the value of the item in question. This is usually the case for conveyancing and probate matters. For this work, there is a statutory scale of fees depending upon the value of the property being bought or sold, or the value of the deceased’s estate.
  • on an item-by-item basis for each item of work done by the lawyer in the handling of the client’s matter. Thus a lawyer can charge the client for the writing of letters, the reading of letters and for various items of work relating to preparation and appearing in court proceedings.
  • according to the time spent working on the matter.

A lawyer’s charges are presented to the client in a written bill of costs. The bill of costs has two parts:

  • the charge by the lawyer for doing the particular work — this is known as the lawyer’s profit costs, and are calculated by one of the three methods outlined above or a combination of them;
  • the out-of-pockets which the lawyer has to pay in the carrying out of the work on the client’s case.

Where court action has been involved, the lawyer must charge in accordance with the costs scale of the relevant court unless there is a written agreement to the contrary. The bill will usually indicate whether it is based on such a scale. The Law Society will usually advise enquirers whether the correct scale, if any, has been used.

Costs agreements can be set aside or amended by a taxing officer or arbitrator (see below) if they are unfair and unreasonable. If a person is successful with a civil claim in court (other than in the Family Court where different rules apply) they will usually get an order for costs in their favour. This order will only cover their party-to-party costs. A lawyer can claim additional costs from the client which are not covered by these costs as long as they were reasonably necessary in dealing with the case. These are known as solicitor-to-client costs. These can make up to 25% of the total costs but are usually a lesser proportion. Both sorts of costs will also include out-of-pockets.

Most civil court cases are settled by negotiation before they go to trial. Before settling a case, a lawyer must tell their client the minimum amount the client will receive if the case is settled and of the payments likely to come out of the settlement.

Settlements will usually also involve agreements as to payment of costs. Where liability is an issue, agreements that each party pay their own costs are common.

A lawyer can ask that money be deposited with the firm to cover likely legal costs and fees, and can refuse to continue to represent a person if that money is not deposited. This is known as security for costs. This money must be paid into the firm's trust account. A lawyer cannot draw amounts over $100 from the trust account or sue the person for unpaid fees without presenting an account. A client can ask in writing for an account to be itemised. The lawyer can charge for itemising larger accounts except where the itemised account turns out to be less than the original account.

If it is felt that the bill is excessive, the client can complain to the Legal Profession Board. The Board may ask the lawyer to explain how the amount was arrived at and it may indicate whether the bill seems too high. If the lawyer has calculated the cost of the services on an item by item basis, or a time basis, it may be that the lawyer will merely give an abbreviated list or description of items (without indicating the cost of each of them) and then charge a lump sum. However, the client is entitled to have the bill set out in an itemised fashion with all the costs that the lawyer is charging. This is known as getting the bill in taxable form. Although the client has a right to have the bill prepared in this form, the lawyer may arrive at a sum higher than in the original un-itemised bill.

If a client disagrees with an itemised account, either they or their lawyer can have the dispute referred to an arbitrator. An arbitrator is an independent lawyer appointed by the Law Society. If the account is under $3,000 the arbitrator 'is to mediate and settle the dispute without formality and with the least expense'. Disputes about itemised accounts can also be dealt with by a court official called a taxing officer. It is the traditional way of dealing with disputes about accounts and generally more formal and expensive. In this process, each item on the bill has to be justified to the court officer by the billing lawyer. If the lawyer has made unreasonable charges, they will be deducted from the amount the client must pay. However, unless one sixth or more of the bill is taken off (and it is possible for the officer to add to the bill), the client will have to pay an extra sum to the lawyer for their costs in having the bill taxed. This is in addition to meeting the costs of any new lawyer who has assisted the client in having the bill taxed.

Quality of Work

It is difficult for clients to judge whether lawyers have provided poor quality work. Even if the client loses an ‘open and shut’ case, that is not sufficient indication that the lawyer has been at fault. The lawyer has to be negligent before the client has a legal remedy against the lawyer.

Negligence could arise because of excessive delay which has resulted in the client losing their legal right, or the lawyer could be negligent in handling the client’s affairs by not taking certain precautions that are commonly taken by lawyers. For example, in handling a conveyancing matter, the lawyer may not have made the necessary enquiries about the property that the client wishes to buy.

As a result, the client goes ahead with the purchase and only later discovers that the land cannot be used in a way that was originally intended. What will be regarded as negligent work varies from case to case and no firm guideline can be given here. Furthermore, not only must there be negligence by the lawyer but the client must have suffered financial loss as a result of the lawyer’s work.

To determine adequately whether a lawyer has been negligent, further legal work may be needed and the client may have to seek another solicitor if they wish to sue the previous lawyer. It should be noted that all lawyers have compulsory insurance against legal actions for negligence.

Lawyers’ Remedies

Suing

If a person does not pay a lawyer’s account it becomes a debt which the lawyer can recover like any other debt. The Legal Profession Board cannot stop this from happening.

Keeping Papers

In some instances a lawyer may refuse to return a client’s papers unless the client pays the lawyer’s bill. This is known as exercising a solicitor’s lien. If a client considers that the lien is being exercised unreasonably they can complain to the Law Society, which may try to persuade the lawyer to give the papers to the client’s new lawyer. The client’s new lawyer may also be able to negotiate with the old lawyer about this.

Time Limits

If someone has a legal claim against another person, they should get legal advice about it as soon as possible. One very important reason is that most legal actions must be started within a particular period of time. Usually this will be a number of years, but in some cases the time period can be as little as 21 days as is the case for an action for unfair dismissal in the federal Industrial Relations Commission or an appeal against a decision made in the Magistrates Court. In other cases, the person must give notice of the intention to take legal action and in such cases the time limit will usually be a matter of months.

There are a number of reasons why the law imposes time limits on legal actions. The most important of these is that people should be able to conduct their business affairs, and get on with their lives generally, without the continued threat of having to deal with legal actions for things that happened many years before. Another is that the longer that legal actions are delayed, the harder it will be to get together the evidence needed to resolve them. A person’s memory of events quickly fades, documents are lost and witnesses move on or even die.

Extensions of Time Limits

Time limits are generally imposed by legislation which creates or regulates the legal action. Quite often the legislation which imposes the time limit will allow someone to seek an extension of time to take legal action where time has run out. But potential litigants should not allow this to lull them into the belief that time limits don't matter. Often applications to extend time must be made within a time limit, and in cases where no particular time limit is imposed, the longer the person leaves it, the harder it will be to get an extension.

In some cases specific grounds on which someone can seek an extension of time are set out, but generally they will need to show that there was a good reason for the delay, that the delay is not going to cause unfairness to the other party (because, for example, a vital witness has died) and that they have a reasonable case to argue.

Self-Representation

Overview

Legal Aid (assistance in getting and paying for a lawyer) is not usually granted for summary offences except where prison or other serious consequences are likely to eventuate. This means that for someone appearing in the Magistrates Court the options may be either representing themselves or paying for a private lawyer.

There are a number of ways a person can get help in representing themselves. Community Legal Services advice sessions, Legal Aid office clinics, Duty Solicitors and court volunteers are all avenues they can try.

Civil Litigation

There is detailed information on the Magistrates Court website about self-representation in civil litigation.

There are several divisions to the Civil Division itself, and the nature of the dispute will determine the division to which a potential litigant will be referred. A civil dispute concerning a tort, or a claim for damages arising from a breach of contract, will involve different procedures to a civil dispute concerning a breach of the Residential Tenancy agreement.

When a person wishes to initiate a civil dispute, thus becoming the claimant, the Civil Division will provide a litigant pack which includes information and copies of Form 1: Claim. This form is the form used to begin a civil dispute. Conciliation conferences are a mandated part of the civil litigation process. It is part of the Case Management process at the Magistrates Court to minimise court time and also the expenses of the parties. There is more detailed information on the civil litigation process and what is likely to happen during your civil litigation process at the Magistrates Court website.

The Magistrates Court has a statement about what kind of advice they can provide. They state that the mission of the court is to serve the community by providing access to an accountable independent and impartial system of justice administered according to law. The court is happy to help you if it can. However, it must be fair to everyone so there is a limit to what a magistrate or court representatives can say or do.  The Magistrates Court website provides the following information:

  • We can provide you with a list of local lawyers or the telephone number of the Law Society of Tasmania’s referral service.
  • We can explain and answer questions about how the court works.
  • We can give you general information about Court rules, procedures and practices
  • We can provide Court schedules and information on how to get a case listed.
  • We can give you information from your Court file.
  • We can give you samples of Court forms that are available.
  • We can usually answer questions about Court deadlines and how to work them out.
  • We cannot tell you whether or not you should bring your case to court.
  • We cannot tell you what words to use in your Court papers.  However, we will check your papers for compliance, e.g. signatures, correct Court location, correct case number.
  • We cannot tell you what to say in Court.
  • We cannot give you an opinion about what will happen if you bring your case to Court.
  • We cannot talk to the Magistrate for you.
  • We cannot let you talk to the Magistrate outside of Court.
  • We cannot change an order made or signed by a Magistrate.

Preparing a Case

Organisations such as Community Legal Services or the Legal Aid Office may have educational material that will help the person prepare their case.

If the person wants to plead ‘not guilty’ they may first want to talk to one of these organisations in case it is possible for them to negotiate with the police prosecutor – if they are willing to plead ‘guilty’ to a lesser charge.

If the person is disputing the facts and has witnesses, they will need to organise these witnesses to appear. They need to be waiting outside the court when the person calls for them. If they can’t come, a second-best option may be to get them to sign a Statutory Declaration in front of a JP. Seek assistance from one of the organisations already mentioned as to the kind of detail that should be contained in a Statutory Declaration.

Speaking to a court is not much different to public speaking generally and there will be material on public speaking at a local library. Some people like to prepare everything they will say, write it down, or summarise it on cards. Trying out on other people what they intend to say may be useful and may make them less nervous on the day.

Nerves are always a problem. Even lawyers get nervous. Material on public speaking will often contain sections on the best way of overcoming nerves.

Magistrates will sometimes help unrepresented defendants who are running their own case, in the interests of fairness. If the magistrate suggests something to the person, it will usually be in their best interests to follow that advice.

The person should pay attention to their appearance. Be neat and clean. Conservative clothes are best.

Don’t rush. Stay calm. The person also needs to take on board the fact that they may lose. They will need to prepare material for their plea of mitigation in the event of losing.

What Happens in the Case Itself

Step One:  The Complaint and Getting the Court Date

Persons who are charged with offences are called defendants. Defendants appear in court as the result of answering a summons, answering bail or being remanded in custody and being brought before a court. The initial process is as follows:

  • A summons is sent to the person at their last known address – for example, if a person is called to appear for a relatively minor charge, they will be asked to provide their address, and sent a letter giving them a court date and time for appearance to answer the complaint/charge against them.
  • The person will have been released on bail (this is usually for a more serious offence), and a date and time for appearance before the court will be provided to them.
  • The person will have been remanded in custody (for the most serious offences or for people who have previously breached bail), and a date and time for appearance before the court will be provided to them.

The time period that elapses from the date of the charge or complaint to the date of the first appearance will vary. Where a person is remanded in custody the time period will be shorter. During that time, the detained person can apply for bail at any time. Any person granted police or court bail can apply (at any time) to the court for a variation of that bail.

Getting Bail
 

If a person is being held in custody they have the right to make a bail application. See the section above on ‘Bail’. A Duty Solicitor may assist them.

Before the case comes up

It is a good idea, if there is time, for a defendant to go down and sit in on a session at the Magistrates Court. A person can find out from court staff if there are any cases coming on that are similar to theirs and go and sit in the back of the court and watch what happens.

If the person wants to plead ‘guilty’ but wants to know the best way to go about it, they can sit in on some cases where the defendant is pleading guilty and see what sort of things they present as ‘pleas of mitigation’. This is important when preparing their case (see below).

If they want to plead ‘not guilty’ they can sit in on a defended hearing. They will see how the prosecutor and the defendant or their lawyer asks questions of witnesses. They will also get an idea of the role of the magistrate in such a situation and the way that the case is run.

 

Step Two: Disclosure

Obtaining Preliminary Disclosure

Disclosure is where the prosecution or police give documents or information on evidence to the defendant. With self-representation it is important to get preliminary disclosure. Preliminary disclosure involves no fee, but you must write to the police to obtain disclosure. Preliminary disclosure requests should ask for:

  • The complaint;
  • Facts for the prosecutor;
  • Relevant prior convictions;
  • Statements made by the defendant (sometimes in electronic format, such as a DVD or sound recording)

This information will give the defendant information on the nature of the complaint made against them. A defendant should draft a letter that is polite and provides their full name, their date of birth, the complaint number and a return address to which the Disclosure Officer can send documents. There is no fee associated with initial disclosure.

Obtaining Full Disclosure

If a defendant intends to plead not guilty, it is wise to obtain full disclosure from the police. In a request for full disclosure the defendant should ask for:

  • The full police brief of the case
  • Witness statements
  • Witness proofs – such as documents
  • Police reports
  • Police statements
  • Police proofs – such as documents (but not photographs)

Full disclosure carries a fee of $53.90. This is liable to change without notice. Again, include your full name, a return address, your date of birth, and the complaint number. If you decide to have legal aid at some point along your trial, Legal Aid can obtain full disclosure without a fee.

Who to contact

Document Disclosure Officer
Southern Regional Prosecution Services
Level 3M
43 Liverpool Street
Hobart, Tasmania 7000

Email: Southern.Prosecution.Disclosure@police.tas.gov.au
Phone: (03) 6230 2458

Email: Prosecution.Services.North@police.tas.gov.au
Phone: (03) 6336 3863

Email: prosecution.services.west@police.tas.gov.au
Phone: (03) 6429 8625

 

Step Three:  First Appearance

At the first appearance there are three things that can happen:

  1. The case will be adjourned to a later date for the person to prepare their plea of either guilty or not guilty. The defendant is entitled to an adjournment without plea and does not have to justify any adjournment.
  2. The defendant will plead guilty
  3. The defendant will plead not-guilty

Each of these steps entails different steps afterwards.

1. Adjournment

A new date will be set for the appearance in court, usually in about 6 weeks time. This means that at the next appearance, the defendant should be in a position to have considered their position, seek legal advice if necessary and to plead either guilty or not guilty. A first adjournment is a right, and will usually be granted.

2. Pleading Guilty

If a defendant pleads guilty there are two things that can happen. The facts and sentence may be finalised then and there, or the magistrate may order an adjournment to finalise the facts and sentence at a later date. See the pleading guilty section.

A defendant can plead guilty at any stage or be found guilty after a hearing. If a defendant pleads guilty the process can involve either the facts and sentence being finalised on the day, or the finalisation of facts and sentence will be adjourned until a later date. The process is as follows:

Facts and sentence of the guilty plea finalised on the day

Where a defendant has pleaded guilty, the facts of the charge against the defendant will be read out by the police who are referred to as the prosecution. For example: on 24th September 2011, at 7.01pm Greg Griggs was caught driving at 70km/h in a 50km zone. If the defendant agrees with these facts the sentence will be finalised. A sentence can be a fine, an order for community service, or a period of imprisonment, amongst other options.

The simpler the sentence – such as a fine for drink driving, and a period of licence suspension, the more likely that a magistrate will pass sentence at that appearance. There are complicating factors that can occur even at this stage such as a person indicating a plea of guilty but makes an application for a restricted licence in which case the whole process may be adjourned for another day. Similarly, the magistrate may require a pre-sentence report to get additional information.

What if the defendant pleads guilty to an offence but did not know they were committing an offence?

A defendant has a chance to speak for themselves before a sentence is passed. This is called a plea in mitigation. A defendant is not required to speak on their own behalf at this point, but they may do so. For example, a defendant may wish to tell the court why they were speeding in their car, and point out their good record or their need for a car so that the court can consider a lesser penalty.

However, if a defendant when speaking for themselves mentions that they did not know at the time that they were committing an offence, this may amount to a plea of not guilty. This is not the case all the time. Ignorance of the law is no excuse. Ignorance of certain facts may be important. For example, if a defendant says ‘ I accept that I was driving on a suspended licence now, but I did not know that my licence was suspended’, this indicates that they did not have the intention of driving with a suspended licence because they did not know their licence was suspended.

An intention – an awareness that the licence was suspended, is part of the charge of driving with a suspended licence. The magistrate will then replace the plea of guilty with a directed plea of not guilty, and a new court date will be set for a hearing. It is a duty of a magistrate to ensure that a defendant does not enter a plea of guilty if that plea is inconsistent with the facts as stated by either the prosecution or the defendant and if the defendant insists that they are guilty but gives a version inconsistent with guilt, the magistrate will enter a directed plea of not guilty. In many cases of shoplifting, the defendant will say ‘I didn’t mean to take the items but I want to get the matter over with today.’ If the defendant persists with this stance the magistrate will direct a plea of not guilty and list for hearing.

Sentence adjourned until a later date: facts and sentence finalised at a later date

Where the court adjourns to finalise facts and the sentence the time periods involved can be between one and three months. The court will adjourn where a sentence will be complicated, or there are other factors involved. These factors can include the court seeking a report to ascertain eligibility for Community Service Orders or Probation Orders.

A report may be necessary where the defendant has substance abuse issues and may qualify for court ordered drug diversion programs, where the defendant is a youth, where the defendant has mental health problems, or where a pre-sentence report is necessary. Reports take 4-6 weeks to be prepared, the defence and the court receive copies of the report/s.

If a person has been in custody and receives a prison sentence then a court will usually backdate the sentence to the beginning of the person’s period in custody. This means that any time the defendant has already spent in custody will count toward the sentence.

3. Pleading Not Guilty

If a defendant pleads not guilty then the matter may be adjourned for ‘mention’ to make sure that the defendant maintains the plea of not guilty and to ensure that everything is prepared for the eventual hearing. If the matter is not complex, the court may skip this step and list the matter directly for a hearing (see Pleading Not Guilty). Because any plea of not guilty has to be investigated carefully, courts cannot deal with a plea of not guilty on a first appearance in court.

Pleading not guilty:  A Typical Case

Note that a defendant can plead guilty at any time, even after the hearing has commenced. If a matter has been listed for hearing and you make a decision to plead guilty, the court and the prosecution should be advised so that the court can list other matters that day and the prosecution can advise their witnesses that they are not required to attend court.

If a matter is set down for hearing (you have plead not guilty) and you need an adjournment to delay the hearing, you can contact the prosecution who in appropriate circumstances (such as your hospitalisation) may consent to an adjournment. You should also advise the court.

A magistrate will require very good reasons for adjourning a hearing (particularly on short notice) if the matter is unable to proceed on the allocated day.

At the hearing it is the prosecution’s task to present the case against the defendant. The prosecution has to prove the elements of the offence ‘beyond reasonable doubt’.

The magistrate’s task is to adjudicate the case and ultimately to determine whether the prosecution has established the case against the defendant. The magistrate will attempt to safeguard the interests of a defendant to some extent but there is a limit to what the magistrate can do as the magistrate must remain impartial.

Consider the witnesses you would call, ascertain their availability and arrange for them to attend court. If a witness is necessary but unwilling to attend court for you then the police may call them, or you may have to summons the witness. Court staff can help you with the paperwork for this.

Prepare your questions for the police witnesses. You know what witnesses the police will call as a result of the earlier disclosure of the police case. There is no point trying to conduct your own cross examination without preparation. Even experienced lawyers prepare their client’s case in advance.

Your questions should be relevant and adequately put your case to the prosecution witnesses. If you disagree with any aspect of a witness’ testimony, make sure that everyone knows with which aspects you disagree and ask all necessary questions needed to undermine the credibility of that witness.

If you have any legal submissions to make prepare them in a written form to assist you when needed.

 

Step Four: Second and Subsequent Appearances

After the first appearance, the defendant can appear a number of times before a plea of guilty or not guilty is entered. Generally however, the magistrate will require a reason for further adjournments and will become increasingly unwilling to adjourn the matter without a plea being entered. As a final resort the magistrate may enter a directed plea of not guilty and set the matter down for a hearing. A magistrate cannot force a defendant to plead guilty.

Subject to the above comments, second and subsequent appearances proceed in the same way as a first appearance.

 

Step Five: Process

Case Summary

The prosecution gives the magistrate a short summary of the case and a summary of the prosecution evidence and perhaps mentions any legal issues.

Prosecution Witnesses and Evidence

Prosecution calls witnesses and puts into evidence relevant documents. Each witness gives evidence (examination in chief) and is asked questions by the defendant (cross examination). The prosecution is then asked if it wishes to ask further questions of the witness to clean up any ambiguities arising out of the cross examination (re-examination).

If a witness has any other evidence that they have brought to court with them (such as receipts for payment, photographs they have taken, plans or letters from government departments), they can produce these during their evidence in chief so they can be ‘tendered’ to the court. This procedure is repeated for each of the prosecution witnesses. 

It is important that the defendant questions the prosecution witness if the defendant challenges the evidence of that witness. If the evidence of a witness is unchallenged, the magistrate is likely to accept that unchallenged evidence. In some cases, identity of the driver may not be in dispute. In such a case it would be unnecessary to ask the police witness who was driving your car but if you were challenging the speed at which that witness alleges you were travelling, you should put questions to that witness that challenge his evidence and how that witness reached the conclusion as to your speed. If, on the other hand, you deny driving the vehicle in question, you should directly ask the police witness as to how he identified you as the driver, the nature and time of his viewing of you and other matters which may affect that witness’ credibility.

No case to answer submission

At the end of the police case, the defendant may submit to the magistrate that the defendant does not have a case to answer. This is an assertion that the police case taken at its highest is insufficient to prove all the elements of the offence. A magistrate will generally be alert, without your submission, to whether or not a case sufficient to answer has been established and if the magistrate, with or without your submission, finds there is no case to answer the complaint will be dismissed.

A case to answer

If there is a case to answer, the defendant may call evidence (including himself) in support of his case. You do not have to produce any documents, you can just give evidence’ by telling the court your version of events. It is not necessary for the defendant to call evidence. If the defendant considers that the case against him will not satisfy the court beyond reasonable doubt and the defendant’s witnesses will not assist he may choose not to call any witnesses. Of course in such situations the magistrate will not have any advantage gained by hearing from the defendant and the defendant’s witnesses.

Defence Witnesses and Evidence 

If the defendant calls witnesses, the defendant still does not have to give evidence himself. The defence case proceeds in the same way as the prosecution case but the defendant conducts the examination in chief and the re-examination, while the prosecution will cross examine.

Addressing the Court

At the conclusion of the case, both the prosecution and the defendant may address the court as to the evidence and / or the law.

Decision of the Court

If the magistrate decides in the defendant’s favour, the complaint is dismissed. If the magistrate decides in the prosecution’s favour, the magistrate will then proceed as if there was a plea of guilty. At this stage, the magistrate will be shown the defendant’s record of convictions for the first time.

 

Step Six:  The Plea in Mitigation

After a statement of fact by the prosecutor on a finding of guilt the defendant has the opportunity to address the court by way of a plea in mitigation. A defendant should prepare for the plea. It would be prudent to have notes which set out the reasons for committing the offence and which detail the personal circumstances of the defendant.

The object of a plea in mitigation is to put the defendant’s offending and personal circumstances in the best light so that the magistrate gives a sentence less than they might otherwise give.

Relevant matters that should be addressed are as follows:

  • Why you committed the offence;
  • How you have addressed the offending (i.e. you have enrolled in an anger management class, seen a counsellor or sold your vehicle);
  • What (if anything) you have done to remedy the offending (such as paying for the broken window or the stolen goods);
  • Education and work history and how a conviction might affect you, for example a conviction for use of cannabis would result in you losing your employment;
  • Personal and family details, for example you have a dependant wife and 4 young children or you are on an invalid pension with limited income;
  • Financial particulars;
  • References.

Many defendants find court daunting, particularly if the court is crowded and the press is present. In these circumstances, it is entirely acceptable to give a written statement to the magistrate which presents your plea in mitigation. A copy should also be provided for the prosecution.

If you have a reference from employers (both former and present) or friends who are prepared to say something positive about you, such references can be given to the magistrate.

If the reference is provided to show that you are generally of a good character it is important that the person giving the reference on your behalf states at the beginning of the reference their knowledge of the reason you are appearing in court. A reference given in the knowledge that it will be used in court conveys more weight than a general reference.

 

Factors to Take Into Account in Self-Representation

Everybody can weigh up the pros and cons of self-representation. Are you likely to go to jail? Is this a first and minor offence? What will be the impact of this on your life? Factors that need to be taken into account when deciding whether to self-represent include:

  • The charge: is it a minor offence or a major offence?
  • Consequences – such as imprisonment, fines, disqualification from driving
  • Your circumstances – your type of employment
  • Your needs – will a guilty verdict impact on your life in a negative way?

Example

If you are charged with the offence of ‘causing death by negligent driving’ it is reasonable to consider that a term of imprisonment could well be imposed even if you have an unblemished record and that the engagement of a lawyer is necessary and you should engage a lawyer. First offences are not always minor offences.

If, on the other hand, you are a tradesperson or a public servant in full time employment and you are charged with exceeding the blood alcohol limit of 0.05, namely 0.07 and have an otherwise long unblemished record you may not choose legal representation. If you are a public servant you may choose to be self-represented as 3 months disqualification from driving and $260 fine (or thereabouts) may not significantly affect you. If you are a tradesperson you may choose a lawyer to represent you because of your reliance on your license for work, and it is important to minimise the period of disqualification and obtain a Restricted Licence for that reason. Although obtaining legal representation does not guarantee that you will receive the minimum period of disqualification and/or a Restricted Licence, the expense of engaging a lawyer may be seen as justified expense.

The following sections explain the process in the event that you choose to represent yourself in the magistrates’ court.

Checklist for Self-Representation

1. Obtain a copy of all charges against you

2. Consider whether or not you intend to (a) plead guilty or (b) not guilty

Do you you wish to represent yourself? Seek legal advice if necessary to assist you to make that decision. Free legal clinics are available at Legal Aid and community legal services to assist you with these decisions).

3. If you have decided to plead guilty at an early stage

Prepare your plea in mitigation together with any relevant references. Check with prosecution that your record of convictions is as you recall. Plead guilty and give your plea in mitigation.

4. If the matter is more complicated

If you are not sure whether to plead guilty or not guilty), appear in court and seek an adjournment. Following the adjournment, write to police to advise them that you are acting for yourself and require full disclosure by the police of the case against you together with your police record. Once you have that information you can consider whether or not to (a) plead guilty or (b) not guilty and whether you wish to represent yourself in court. You can seek legal advice for the purpose of making that decision and you will have all necessary documents to assist you to make the decision.

5. If you decide to represent yourself and plead guilty

Prepare your plea in mitigation.

6. If you decide to represent yourself and plead not guilty

You enter a plea of not guilty at your next appearance in court and you will be allocated a hearing date.

7. Prepare for the hearing

Consider what witnesses to call, ascertain their availability and arrange for them to attend court. If a witness is necessary but unwilling to attend court for you then the police may call them, or you may have to summons the witness. Court staff can help you with the paperwork for this.

Prepare your questions for the police witnesses. You know what witnesses the police will call as a result of the earlier disclosure of the police case. There is no point trying to conduct your own cross examination without preparation. Even experienced lawyers prepare their client’s case in advance. Your questions should be relevant and adequately put your case to the prosecution witnesses. If you disagree with any aspect of a witness’ testimony, make sure that everyone knows with which aspects you disagree and ask all necessary questions needed to undermine the credibility of that witness.

If you have any legal submissions to make prepare them in a written form to assist you when needed.

8. Prepare your plea in mitigation

Despite your brilliant advocacy you may still be convicted and will then need to give a plea in mitigation immediately following the hearing.

Self Representation in the Federal Circuit Court and Family Court

Family Court and Federal Circuit Court – What’s the Difference?

There is some overlap in the area of family law between the Family Court and the Federal Circuit Court. Both have jurisdiction over family law, and both focus on alternative dispute resolution methods for resolving legal disputes. Both the Family Court and the Federal Circuit Court stress dispute resolution alternatives to litigation. Both courts have jurisdiction over both marriage and de facto relationships. Both courts also provide e-filing for divorce, initiating applications and response to initiating applications.

Family Court – Exclusive Jurisdiction

The Family Court has exclusive jurisdiction over the validity of marriages and divorces, and adoption. It is also the court which deals with more difficult issues of family law, such as:

  • international child abduction
  • international relocation
  • special medical procedures
  • serious allegations of sexual abuse of a child
  • serious allegations of physical abuse of a child

The Family Court also hears disputes over whether a case should be heard in Australia, and also complex questions of jurisdiction and law. The Federal Circuit Court will deal with many of the smaller scale issues in family law.

There is a large body of publications available on the Family Court website concerning all aspects of the Family Court process.

Federal Circuit Court and Family Court: Overlap

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker.

Whilst both the Family and Circuit courts deal with normal family law issues such as divorce, separation, maintenance, and child support, the Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, as noted above, and so the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes
  • Spousal and de facto maintenance
  • Property disputes
  • Divorce
  • Contravention applications (alleging a breach of a court order)
  • Enforcement of orders made by either the Federal Circuit Court or Family Court
  • Location and recovery orders as well as warrants for the apprehension or detention of a child
  • Determination of parentage and recovery of child bearing expenses
  • Applications for injunctions
  • Superannuation (which can now be considered property in a divorce or separation)

For self-representing parties, forms for some of the above listed areas are available.

The Family Law Court website also provides information on the court processes, forms, and costs associated with going to court over a family dispute.

Both courts encourages parties to settle matters between themselves before proceeding to court. Sometimes this may not be possible, and court is the only option. You will find that once you access the Family Law Court website or the Federal Circuit Court website there is a great deal of connection between the two because of their joint jurisdiction.

How and when you can begin certain proceedings is discussed in the Family Law section of this website. For more information on family law in general go to the Family Law section.

 

Legal Advice or Self-Representation?

The Federal Circuit Court stresses speed, efficiency and cost effectiveness in their resolution of disputes. For this reason, the court website is accessible, and provides means of self-representation for parties to a family law dispute. If the ‘dispute’ is merely an amicable divorce, or involves an agreement between amicable parties, legal advice may only be necessary for the paperwork involved in property division or settling means of paying maintenance.

It is always important to seek legal advice where matters are hostile or unsettled between parties. This includes situations where one party is seeking a divorce but the other party is resistant. Other examples could include where the custody of a child or children is disputed, or where one party is not willing to pay maintenance or divide property. Issues like these will often end up before the courts. There is compulsory dispute resolution, but continued hostility and an unwillingness of one or both parties to agree will result in the matter being heard in court, and the need for legal representation.

If the two parties are amicable, and have settled relationship and financial matters between themselves, self-representation is an appealing option.

It is your choice to self-represent, but where matters between married parties are not amicable or settled, legal advice is the wisest choice. Legal Aid is available to some people, and Legal Aid provides Duty Solicitors at the Federal Circuit Court.

 

What you can do in the Federal Circuit Court

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker. The Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes;
  • Spousal and de facto maintenance;
  • Property disputes;
  • Divorce;
  • Contravention applications (alleging a breach of a court order);
  • Enforcement of orders made by either the Federal Circuit Court or Family Court;
  • Location and recovery orders as well as warrants for the apprehension or detention of a child;
  • Determination of parentage and recovery of child bearing expenses;
  • Applications for injunctions;
  • Superannuation (which can now be considered property in a divorce or separation);

For self-representing parties, forms for some of the above listed areas are available at the Federal Circuit Court website, however some of these matters are best dealt with by lawyers, as the matters to be resolved may be complicated and require paperwork that is difficult to manage.

While the court encourages parties to settle matters between themselves before proceeding to court this may not always be possible, and court will be the only option, in which case, it is important to seek legal advice.

Separation and Divorce

Applying for a divorce where the split is amicable, or at least mutually desired, can be quite simple. A joint application where there are no children under the age of 18 years requires very little effort from the two parties. However, there are steps that must be followed.

The Federal Circuit Court (FCC) provides information on divorce, and links to the Family Court page that provides a step-by-step guide to applying for a divorce. Parties must:

  1. Complete an application for divorce. Application for Divorce Kits are available.
  2. Sign the application before a lawyer, Justice of the Peace, or other authorised person
  3. Make two photocopies of the completed and signed Application, plus any supporting documents
  4. File the original and two copies of the Application, plus a copy of your marriage certificate with the FCC
  5. Receive a hearing date and documents
  6. Serve papers on your spouse
  7. Attend the hearing. You need not attend if there is no child under the age of 18, or if there is such a child, you needn’t attend if the divorce application was a joint application. If there is a child under the age of 18 and the application was made by you alone, you must attend the court hearing.
  8. Receive the outcome of the hearing

Property and Maintenance

Property

If parties can agree on property settlement, the process in the FCC is much smoother. It will often involve legal advice, particularly if the property settlement requires sale of real estate or assets. If parties can’t agree, the courts will intervene, but if the parties can agree, they are empowered to make enforceable private agreements, which the courts will then make orders on.

For example, Bob and Jenny decide to divorce. It is an amicable split, they have no children, they have already agreed on what personal items they will keep. Bob and Jenny have agreed that Jenny can have the residential house and Bob can keep the holiday house on Bruny Island. They can make an agreement to this effect, and then seek consent orders from the FCC. They do this by filing an ‘Application for Consent Orders’ form.

If the matter is not so simple, legal advice and representation will be necessary.

Maintenance

Parties to a marriage can make agreements on maintenance. These are called ‘Maintenance Agreements’. There are two types of agreement that can be made: Section 86 and Section 87 Agreements. Section 86 Agreements need only be registered with the Court. It must be accompanied by an affidavit from one of the parties swearing to both parties having signed the original agreement. The agreement must be witnessed by a justice of the peace or a lawyer. A Section 86 Agreement can be contested or varied at a later date, as it is not a final agreement.

Section 87 Agreements are much more formal, as they substitute any claims for maintenance that can be made in the future. They constitute a final agreement between the parties. For this reason, approval must be sought from the FCC. The court will look at whether the agreement is fair between the parties. For this, it is recommended that legal advice be sought.

Section 86 and Section 87 agreements can also cover property settlements.

Child Support and Custody of Children

Child support is dealt with by the Child Support Agency (CSA), a federal government body. Child support is not a matter for the courts unless enforcement is required. The FCC can issue a court order to ensure payment. Non-payment of court ordered child support can be contempt of court and result in imprisonment for the non-paying party. Usually, child support issues before the court will be a matter of last resort, after the CSA has exhausted all other remedies.

The FCC has compulsory dispute resolution sessions for parents to reach agreement concerning their children. Informal and consensual agreements are encouraged. Written agreements called ‘Parenting Plans’ detail the continued care of children after separation. A parenting plan, arising from dispute resolution sessions is enforceable like a court issued parenting order.

Obviously, if there is acrimony and disagreement between the parties, legal advice should be sought. However, it is important that parents bear in mind the best interests of their children, and as the court has compulsory dispute resolution, it is possible to make applications without legal advice, to register or reach an agreement on parenting. This is particularly desirable where both parties are already agreed. The parties or a party can lodge an application for consent orders.

The court can vary parenting orders if issues arise. If sexual abuse is involved, the matter will go to the Family Court rather than the FCC. In situations like this it is imperative to seek legal advice.

Legal Glossary

GLOSSARY OF LEGAL TERMS

These are some of the terms used in the course of this chapter and the rest of the Tasmanian Law Handbook. Anyone who is going to take a more than cursory interest in the law would be advised to invest in a good law dictionary. Terms which are defined elsewhere in the glossary will be shown in bold type.

Aa

Abate  To reduce something. For example, to abate a nuisance (rubbish or noise) is to remove or reduce the nuisance without violence or unnecessary damage. This is an alternative to the bringing of a court action.

Abrogate  To repeal, cancel or annul.

Acquit  To find an accused “not guilty” after trial.

Adjourn  To suspend a court hearing to a future specified day or indefinitely.

Affidavit  A written statement sworn on oath or affirmation before a person with authority to administer it. The person in whose name the document is sworn is called the deponent. Affidavits must contain only facts which the deponent can prove. Generally, affidavits are required in court proceedings in place of Statutory Declarations.

Affiliation order  A Magistrate’s order which requires the putative father of a child to pay maintenance to the mother for the support of the child.

Affirmation  A statement that something is true, which may be made in place of an oath, if an oath is contrary to a person’s religious belief or if the person has no religious belief.

Agent  A person who acts on behalf of another, called the principal. The principal may authorise the agent to enter into a contract and the agent acquires rights or incurs obligations on the principal’s behalf. An agent’s act, done within the scope of his or her authority, binds the principal.

Aggravated damages  Damages which are awarded beyond normal damages to compensate the plaintiff for having their honour or dignity offended.

Ancillary relief  In family law, orders relating to parenting orders, maintenance, and for property of the parties as opposed to the actual divorce or dissolution of marriage, which is called principal relief.

Annexure  Any supplementary material added to an original document, usually sworn such as an affidavit.

Annuity  A sum of money payable yearly, usually out of money invested for that purposes such as superannuation funds.

Annul  To declare void in law. For example, when a marriage is annulled, the court is saying that it never was a marriage in law.

Appeal  To take a case to a higher court in order to rectify an incorrect decision.

Appellant  A person who appeals a decision of a court or tribunal.

Appearance  A document filed in a court announcing that a person will be a party to a court action started by someone else. Also the announcement in court by a lawyer that they represent a party in court.

Arbitration  A procedure for resolving disputes which involve less formality than a court hearing.

Arrest  To apprehend or take into custody a person suspected of having committed a crime.
attachment  A court order that a sum of money is paid, usually out of the proceeds of sale of a particular item of property, because of a breach of an undertaking.

Attestation clause  A witnessing clause, especially in a will. The attestation clause states that the witnesses saw the testator sign and that they signed in the presence of the testator and each other.

Author The human creator of an original work, not necessarily written.

Award  The decision of an arbitrator, for example, in industrial arbitration proceedings. Once it is made it has the force of law and can be enforced in the same way as a court order or judgment.

Bb

Bail  An accused person is given bail when they are allowed to go free whilst awaiting a court hearing. Sometimes they must have a surety, or the accused may simply promise (enter into a recognisance) to appear in court. Failure to appear is an offence. Bail may be on condition.

Bailiff  A court officer employed to do such things as serve documents and carry out court orders.

Bailment  A delivery of goods from one person who owns them (the bailor) to another (the bailee) for some purpose, on an express or implied condition that the goods will be re-delivered to the bailor when that purpose has been fulfilled. For example, delivering clothes to a dry-cleaner creates a bailment. Bailment may be implied from the behaviour of the parties, but a bailment may exist with no underlying agreement at all.

Balance of probabilities  The standard of proof needed to determine a civil case, that what is alleged is more likely than not to have happened. This standard is less than the standard for a criminal action.

Bankruptcy  A procedure under which most of a debtor’s property is taken over and distributed amongst their creditors.

Beneficiary  A person who is left something in a will or a person for whose benefit property is held by trustees or executors.

Bequeath  To make a gift of personal property in a will.

Beyond reasonable doubt  The standard of proof that a jury must be satisfied with before they convict a defendant in a criminal trial.

Bill of exchange  A negotiable instrument in which the drawer orders the drawee to pay a sum of money on a specified date to either the drawee or a third person (the payee).

Bill of sale  A transfer of ownership of goods, usually as security for a loan. Possession remains unchanged.

Bona fide  In good faith, honestly.

Bond  In criminal cases the defendant may enter into a bond to be of good behaviour or a deed under seal in which a person (the obligor) binds themselves to do or to refrain from doing certain things (sometimes referred to as a recognisance).

Burden (or onus) of proof  In criminal cases, the prosecution bears the burden of proof. In civil cases, it is on the plaintiff. Sometimes the burden shifts, for example, if the defendant wants to set up a particular defence.

Cc

Care order  An order made by the Family Court or Magistrates Court which gives day-to-day parental responsibility to the residence provider.

Caveat  A notice given to an appropriate officer ordering him or her not to take a certain step until the person giving the notice (the caveator) has been given an opportunity to object (for example, to a transfer of land).

Caveat emptor  Let the buyer beware. At common law where a buyer of goods had no warranty for them they took the risk as to quality and had no remedy against the seller unless there was fraud. Legislation such as the Fair Trading Act and Trade Practices Act has now restricted greatly the extent to which a buyer is without a remedy.

Certificate of title  A document prepared by the Lands Titles Office which shows details of land registered under the Torrens system, particulars of the location, encumbrances and owners.

Charge/complaint  A form of security for the payment of a debt or the performance of an obligation. In criminal law, the allegation that a person has committed an offence.

Chattel  Any property that is not freehold land or real estate. The property may be a leasehold (then called a "chattel real") or a moveable article of property (chattel personal).

Citizen's arrest  An arrest made by any person other than a police officer.

Civil law  Law which is not criminal, for example, law relating to contracts, negligence and nuisance. Civil cases are generally taken by individuals to recover damages or a debt. Throughout this Handbook Series civil law means non-criminal law.

Civil remedies provision: a provision of the Fair Work Act (Cth) 2009 that allows a complainant to seek compensation or orders against an employer through civil litigation.

Codicil  A document signed by a willmaker which alters or adds to their will.

Collateral contract  A separate contract which precedes or exists alongside the main one.

Committal proceedings  Where a Magistrate’s Court hears evidence on an indictable offence and decides whether the accused should be sent for trial.

Common law  The part of Australian law traditionally based on the decisions of judges in court rather than Acts of Parliament. Another meaning is law which is not equity, statute or ecclesiastical (church).

Complainant  A person who begins a prosecution against another in the Magistrate's Court; a plaintiff; the victim of a crime.

Complaint  a formal allegation that a person has committed an offence, usually a minor offence. Complaints are usually in writing.

Condition  An important term in a contract, the remedy for breach of which is termination of the contract.

Consideration  The price paid for the promise of the other party in a contract.

Contact  The time the child spends with or communicates with the parent they do not live with. Formerly called access.
contempt of court  The failure to obey a court order or an act which shows a disregard for the authority of the court or judge. A person in contempt may face imprisonment.

Contract  A legally enforceable agreement.

Contributory negligence  A partial defence in an action for damages for injuries arising from the defendant’s negligence. The defendant attempts to prove that the plaintiff’s own negligence caused or contributed to the injuries suffered.

Corroboration  Independent evidence which supports the main evidence.
Counterclaim  Where the defendant has an independent claim against the plaintiff, they may raise it in the existing action by adding a statement of the facts on which the claim is made to the statement of defence.

Covenant  An agreement creating an obligation contained in a deed. A covenant may serve the same purpose as a bond.

Creditor  A person to whom a debt is owing.

Criminal Code  An Act of Parliament which embodies the law relating to crime in Tasmania.

Dd

Damages  The amount of money ordered by a judge to be paid by one party to another in a civil case.

Decree absolute  The final order in divorce proceedings.
Decree nisi  A provisional order made by a Family Court judge which terminates the marriage. However neither party can remarry until the decree absolute which is usually one month after the decree nisi is pronounced.

Deed  A written document which is signed, sealed and delivered.

Deemed  To be treated as if.

De facto  “In reality”. For example, a de facto wife is one in reality but not in law.

Defamation  The publication of a false and derogatory statement without a lawful excuse.

Default  To fail in some duty.

Default judgment  Means by which a judgment is entered where the debtor/defendant has failed to enter a defence.

Default summons  A summons which alleges that the debtor/defendant has failed to pay money due and owing.

Defence  A document filed in a court in a civil case setting out the facts on which a defendant relies in opposing a claim.

Defendant  Person against whom legal action is being taken.

Deponent  One who swears or affirms an affidavit.

Devise  A gift of real estate in a will.

Disbursement  Money paid out on behalf of another. In solicitor’s bills it is for such things as filing a form or photocopying. Commonly called ‘out-of-pockets’.

Discharge  To perform or be released from an obligation. A debt is discharged when it is paid.

Disclaimer clause  A clause which renounces a legal claim. An executor may disclaim their position before probate.

Discovery  A procedure by which documents relevant to a civil action are exchanged between the parties before the case comes on for hearing.

Dissolution of marriage  Term used for divorce under the Family Law Act.

Domicile  The place where a person has their legal home. It is the place which determines the legal system relevant to that person. For example, someone domiciled in Tasmania is subject to Tasmania laws.

Double jeopardy  The situation in which a person may be punished twice for the same offence.

Duress  Coercion or excessive pressure on a person to do some act.

Duty of care  The legal obligation to avoid causing damage or loss which could have been reasonably foreseen.

Ee

Easement usually found on a Certificate of Title. A right enjoyed by a person in relation to the land of another person. Such a right co-exists with the rights of the land owner, but interferes with the normal rights of that owner.

Ejectment  An action for the recovery of land.

Encumbrance  A charge or liability, for example, a mortgage.

Endorse  To write on a document such at the back of a cheque.

Equitable interest  Interest in property which is created and enforced where it would be against conscience (moral obligation) to permit the legal owner to keep the benefit of the property for themselves.

Equity  Fairness. A system of legal rules developed by the Lord Chancellor and Courts of Chancery in England to modify the harshness of the common law. Tasmania has equitable jurisdiction. Also the extent of a person’s interest in property.

Estate  The property of a deceased person.

Eviction  The action of recovering land or property by legal proceedings.

Exclusion clause  A clause in a contract which attempts to exclude or avoid liability.

Execution proceedings  The means of recovering a judgment, for example, a garnishment of wages or the seizure of goods.

Executor  The person whose duty it is to carry out the provisions of a will. Where that person is a female, executrix is traditionally used.

Ex gratia  As a matter of favour. An act done when there is no legal obligation.

Exhibit  A document or thing tendered as evidence in a court hearing or referred to in an affidavit.

Ex nuptial  Outside of marriage, such as an ex nuptial child.

Ex officio By reason of office or position. So, an ex oficio member of a committee would be a member of that committee because of their position, such as they contribute funding.

Ex parte  Where the court deals with a matter involving two parties without the other party being present. The ex parte application may also be made by an interested person who is not a party.

Extradition  The delivery by the authorities of one country (or state) of a person accused of a crime in another place to the authorities in that place.

Ff

Fair dealing Allows for the limited use of copyright materials for certain purposes without requiring permission from the copyright owner.

False imprisonment  Detaining someone in custody without lawful excuse.

Felony  A category of crime less serious than treason and more serious than a misdemeanour. Murder, manslaughter and rape are examples of felonies. This term is not normally used in Tasmania.

Fiduciary  A person who is in a position of trust in relation to another, and who is obliged to look after the interests of the other in preference to their own interests.  For example, a trustee has a fiduciary duty to the beneficiaries of a trust; a company director has a fiduciary duty to the company.

Foreclosure  The forced sale of a property to pay a mortgage or debt.

Gg

Garnishment  Proceedings to have a person or body who owes money to a debtor, to pay that money instead to a creditor. For example, an employer may be required to garnishee the wages of an employee, that is, paid part of their wages to a creditor.

Guarantee  To undertake with respect to a contract or the performance of a legal act, that it shall be correctly carried out.

Guarantor  The person giving the undertaking in a guarantee.

Guardian  A person who has the right and duty to protect another person, his or her property and rights.

Hh

Habeas corpus  “To have the body”. A prerogative writ directed to a person who holds someone in custody commanding them to produce that person before a court.

Hearsay evidence  Evidence of a fact not personally seen or heard by a witness, but proved by them to have been said by another. Hearsay evidence is normally not admissible in court proceedings, but there are exceptions to this rule.

Hinder  To do something less than prevent. It means rendering an action more difficult to carry out, but not impossible, that is, to be an obstacle or impediment.

Ii

Incite  To rouse or stimulate or prompt action. It does not necessarily mean to originate or initiate.

Indemnify  To make up a loss which someone has suffered as a result of the act or default of another.

Indemnity  Compensation for a wrong done or an expense or loss suffered.

Indictable offence  A serious crime for which a person will usually be tried by a judge and jury.

Injunction  A court order which directs someone either to do something or to refrain from doing something. An injunction may be interim (temporary, until a further order) or permanent.

Insolvent  Unable to pay debts in full. Another word for bankrupt.

Interlocutory proceedings  A step taken in the course of a legal action to assist either party in proceeding with their case by resolving a particular issue such as liability.

Interpleader  A court hearing that requires competing claimants to property or debt resolve their rights. Can occur in the context of the disposal of property or money under a will, or in bankruptcy.

Interrogatories  Written questions put by one party in a civil action to another on relevant points of the dispute prior to the court hearing.

Intestate  One who dies without leaving a valid will. In such a case the deceased’s property is distributed according to a statutory table of intestacy.

Jj

Joint tenants  People who own land together in undivided shares with a right of survivorship, ie. on the death of one owner their interest automatically passes to the surviving owner(s). The interest cannot be disposed of by will or deed as with tenants in common.

Judgment in default  Where the plaintiff is able to obtain judgment in the absence of an appearance or a defence.

Jurisdiction  The extent of a court’s authority to decide matters brought before it, and the geographical limits within which a court order can be enforced.

Kk

Ll

Lease  Agreement or contract between a landlord and a tenant. Someone to whom a lease is granted is called a lessee. Someone who grants a lease is called a lessor.

Leasehold  An interest in land for a fixed period.

Legal interest  An interest enforceable at law as distinct from an equitable interest.

Legatee  A person to whom property is bequeathed.

Letters of administration  If a person has died without leaving a will or without naming an executor, the court can grant letters of administration that authorised someone to administer the deceased person’s estate.

Liability  Legal responsibility, for example, for breaking a contract, committing a crime. It may be civil or criminal, according to whether it is enforced by the civil or criminal court.

Libel  The publication of defamatory material in permanent (for example, printed) form.

Lien  The right to hold a person’s property as security for the performance of an obligation (for example, the payment of money owing).

Limitation, statutes of  The laws which set out the time limits within which legal action must be taken.

Liquidated amount or claim  A sum which is certain, that is, a stipulated amount, as opposed to a general claim, for example, for damages.

Litigation  The act or process of taking a case to court.

Locus standi  "Place of standing"; the right to be heard in a court in relation to a particular action.

Mm

Maintenance  The payment of money to supply the necessaries of life for a person, usually by a parent for a child. Now also know as Child Support.

Manadamus  A form of writ by which actions for review of administrative decisions are commenced in the Supreme Court.

Mediation  A means by which parties reconcile their differences with the aid of a neutral third party.

Mens rea  A guilty mind, the evil intention or knowledge that an act is wrong.

Minor  A person under the age of 18.

Misdemeanour  A crime or indictable offence not amounting to treason or a felony, for example, criminal libel, perjury, conspiracy. In Tasmania it is commonly used to describe minor offences such as traffic offences.

Mitigation  Showing facts which tend to reduce the damages or punishment to be awarded against a defendant or prisoner. Also the obligation on someone to reduce their losses.

Mortgage  A transfer of real property (land) or personal property (goods) as security for the repayment of money borrowed. The creditor to whom the mortgage is made is called the mortgagee; the debtor who makes it is the mortgagor.

Nn

Natural justice  See procedural fairness.

Negligence  A failure to take reasonable care to avoid foreseeable harm to other people or their property.

Negotiable instrument  A signed document by means of which money may be transferred from one person to another or through several hands, for example, a cheque or a bill of exchange.

Next friend  A person who authorises commencement of proceedings on behalf of an infant and in whose name action is taken.

Nominal damages  Damages of a small amount ordered where a right has been affected but no damage done.

Non est factum  “It is not my deed”. A defence raised where a person has completed a deed in ignorance of its character.

Non-provable debt  Are debts not discharged by bankruptcy. Such as debts acquired after a declaration of bankruptcy. This includes fines or penalties imposed by a court, higher education debts owed to the government, and unliquidated damages from car accidents.

Notary public  A person who attests the signing of any deed or makes certified copies of it in order to make it authentic, especially for use abroad.

Nuisance  An indirect and unlawful interference with an occupier’s use or enjoyment of land by such things as water, smoke or noise.

Oo

Ombudsman  A public official appointed to investigate citizen’s complaints against the administrative agencies of government.

Onus of proof  The obligation to prove what is alleged. Also known as the burden of proof.

Pp

Parenting orders  Orders about children made under the Family Law Act.

Parole  The probationary release of a prisoner prior to the termination of their sentence.

Penalty units  Used in legislation to set the amount payable for a fine, for example, a drink driving charge.

Performer  A person who performs musical, dramatic, literary, circus or variety acts.

Perjury  Lying under oath when questioned about a material matter in a court proceeding. A person found guilty of perjury may face imprisonment.

Plaint  The cause for which the plaintiff complains against the defendant, and for which they obtain a writ or summons. Also describes the formal document stating an action in the Magistrates Court.

Plaintiff  Person who initiates legal proceedings against another in a civil dispute. See also complainant.

Plea in mitigation  A speech made to the judge or magistrate before a person is sentenced for a crime. The aim of the plea is to present reasons why the judge or magistrate should be lenient on the offender. The plea will include facts about the offender’s background, financial situation or events surrounding the crime.

Pleadings  Submissions of either side during the process of establishing the questions of fact and law to be decided in a court action.

Power of attorney  A formal written legal document by which one person gives another the power to represent them or act in their place for certain purposes.

Preliminary examination  See Committal proceedings.

Prerogative writ  A writ issued by a superior court (for example, the Supreme Court) to prevent inferior courts and officials from exceeding their powers or to compel them to exercise their functions, for example, habeas corpus, mandamus, certiorari.

Prima facie  "On the face of it". Evidence which will prove a fact or allegation if no other evidence is produced to the contrary.

Principal relief  In a divorce action, the dissolution itself rather than the ancillary relief.

Privilege  The right not to disclose certain information in evidence in court proceedings.  Communications between lawyer and client are privileged, that is, they do not have to be disclosed in evidence.

Privity of contract  A principle that restricts contractual rights and obligations to the immediate parties to a contract.

Probate  The proving of a will, the acceptance that the deceased’s will is valid and the last will in existence.

Procedural fairness  The rules and procedures to be followed by a person or body with the power to make decisions affecting an individual.  Also known as natural justice.

Process  Type of court document. A statement of claim or a summons is an ‘originating process’.

Proponent  A person who puts forward a proposal.

Provable debt  A provable debt is a debt or liability that arose before the bankruptcy or winding up, and must be recognised by a trustee when administering the estate of a bankrupt to satisfy debts.

Qq

Qualified person (IP)  Is an Australian citizen or person (other than a body corporate) resident in Australia; or a body corporate incorporated under a law of the Commonwealth or of an Australian State. A qualified person can claim copyright protection under Australian law.

Rr

Reasonable doubt  The amount of doubt that must be present in a jury’s mind to enable it to find a defendant not guilty.

Rebuttable presumption  A presumption that holds good in the absence of contrary evidence, for example, innocent until proven guilty. Thus the presumption of innocence is rebutted by positive proof of guilt. Almost all presumptions are rebuttable.

Recision  Revocation of a contract so that both parties are put back into the position that they occupied before the contract was made.

Recognisance  A bond, the object of which is to secure the performance of an act by the person bound by it, for example, to be of good behaviour.

Release  A document saying that money is accepted in full settlement.

Remand  To deny a person charged with an offence bail, and keep them in custody until the time of the trial. People charged with murder are almost always remanded in custody. This is also often the case with other serious crimes.

Remedy  The means by which the violation of a right is prevented, redressed or compensated.

Residence  A court order describing where a child will live after separation of the parents.

Respondent  A person against whom a summons is issued or an appeal brought.

Revoke  To cancel or withdraw on offer (in contractual situations) on a court order.

Rules of evidence  The legal rules which determine whether information is or is not admissible as evidence in court proceedings.

Ss

Seal  An impressed wax, an adhesive wafer or an official stamp that is attached to a document as a sign of its authenticity.

Security  An interest in property temporarily given by way of guarantee that an undertaking will be fulfilled or a debt repaid.

Sequestration order  An order that property be seized in satisfaction of a debt.

Set off  A claim for a specific amount raised by the defendant as a defence to a monetary claim of the plaintiff, that is, ‘set off’ against the amount claimed by the plaintiff so that the plaintiff receives the amount claimed less the amount claimed by the defendant.

Slander  The publication of defamatory material in non-permanent (for example, verbal) form.

Specific issues orders  Orders used in family law that may be about anything apart from residence, contact or maintenance.  For example, a specific issues order may be an order about particular needs the child may have such as medication, or may provide conditions for contact such as not smoking cigarettes during contact visits.

Standard of proof  The level to which something must be proved in court. In criminal matters, the standard is ‘beyond reasonable doubt’; in civil matters, it is ‘on the balance of probabilities’.

Statement of claim  Written statement by the plaintiff showing the facts on which they rely to support their claim against the defendant, and the relief which is claimed.

Statute  A law made by parliament (State or Commonwealth).

Statute barred  No legal action is available by statute.

Statutory declaration  A written statement which the person making it (the declarant) signs and solemnly declares to be true before a person authorised to witness such declarations.

Stay of proceedings  Suspension of proceedings in an action; may be either temporary (until something ordered is done) or permanent.

Strict liability  Liability incurred regardless of intention or fault.

Subpoena  A writ which commands the appearance of a person in court or the production of specified documents.

Sue  To take legal action.

Summary offence  A minor offence heard and decided before a Magistrates Court and not sent for trial before a jury and judge.

Summons  A command to appear at court, usually in the form of a document.

Surety  A person who binds themselves to be answerable for another at the risk of forfeiting a specified amount of money. If there is a default the surety will be liable to pay that sum to the court.

Tt

Tenants in common  One or more people entitled to occupy or own land in common with others. Each person may leave their share to someone else in a will, that is, there is no right of survivorship as there is with joint tenants.

Testamentary capacity  The ability to draw up a will; the mental capacity to know what is happening when this is being done.

Testator  A person who makes a will.  Where that person is female, testatrix may be used.

Tort  A civil wrong, other than a breach of contract, which causes harm intentionally or otherwise, and for which the injured person may claim damages.

Trespass  A tort involving the direct and unlawful interference with the possession of land or other property, regardless of the intention of the trespasser.

Tribunal  Court-like bodies generally of two types. A Domestic Tribunal is a body that exercises jurisdiction over the internal affairs of a particular profession or association. An Administrative Tribunal is a body established under an Act of Parliament to decide claims and disputes arising in connection with the administration of legislative schemes.

Trust  An association between two (or more) people, based on complete confidence, where property is held by one person on behalf of and for the benefit of another.

Trustee  A person who holds property on trust for another.

Uu

Ultra vires  ‘Beyond power’. An act which is in excess of the authority conferred by law, and therefore invalid.

Undertake  To promise to do or to refrain from doing an act. An undertaking made in the course of legal proceedings is enforceable by attachment or by an injunction.

Unliquidated  Undetermined, unascertained, for example, when damages are left to a jury to determine.

Vv

Vicarious  Liability which falls on one person as a result of an action of another. For example, the liability of an employer for the acts and omissions of an employee in the course of employment.

Void  Of no legal effect.

Voir dire  A preliminary examination of evidence by the judge in order to determine the admissibility in certain cases, for example, the qualifications of an expert or the admissibility of a confession in a criminal case.

Ww

Waive  To give up a legal right or claim.

Warrant  A legal document that gives authority to a specified person such as a police officer or customs officer to take the action set out in the warrant.

Warranty  A minor clause in a contract. If the clause is breached, damages can be claimed but the contract may not be terminated.

Waste  Something which does lasting damage to land or alters the nature of the property.

Writ  A document in the monarch’s name and under the seal of the Crown which commands the person to whom it is addressed to do or refrain from doing some act. Many civil court actions are started this way in the Supreme Court.

Xx

 

Yy

 

Zz

 

Crime and Punishment

Search and Arrest

Introduction to search and arrest

Most powers of arrest, search and interrogation are contained within statute. However, these powers are not limited to the police, but include other officials such as Parks and Wildlife Service officers, Custom officers and Fisheries officers.

The functions of arrest, search and interrogation exercised by police officers are standard procedures. There are limits to what a police officer can do, or require of a person. There is a complex set of rules which has evolved in an effort to strike a balance between protection of individual rights/liberties and effective law enforcement. A very basic description of these rules is that there is a need to consider the interests of justice and whether a police officer has abused their position of authority.

With some exceptions, the privilege against self-incrimination prevails throughout the process of arrest and interrogation. Indeed, the whole basis of the common law is the right of the individual to refuse to answer questions put by persons in authority and also to refuse to accompany those in authority to any particular place unless arrested.

Detention

The police have no power to detain a person to assist in their enquiries or for any purpose, unless they have been lawfully arrested. To detain a person other than by lawful arrest is ‘false imprisonment’ and is a civil wrong; however it is often difficult to prove unless the circumstances present a serious abuse of police powers. The police can ask a person to accompany them to the police station for questioning if it is made clear that the person need only go if they so wish. If a person is unwilling to accompany police when asked to do so, they should ask whether they are under arrest. Going along without asserting this right may mean the police acted lawfully. Always ask whether you are under arrest. When you are under arrest you have rights.

Police sometimes arrest a person on a 'holding charge'. This means that the person is charged with a minor offence so that they can be interrogated on other matters at the police station. Whether or not the holding charge is eventually prosecuted does not matter so long as when the person was arrested they were at the time liable to a legal arrest by the person who arrested them (Broughton v Williams (1932) 28 Tas LR 1). This is why it is important to know your legal rights before answering any questions.

Your rights when you are NOT under arrest

You always have the right to silence, but police officers also have the right to ask you questions just as any person has such a right. When you are NOT under arrest you have the right to depart, unless the police officer who has stopped to question you has a reasonble ground to believe that you have committed an offence. Think about the situation you are in when a police officer stops you. If you are simply walking on the street and a police officer stops you and asks you for your name and address it is your right to choose whether or not to answer them. Remember to ALWAYS be courteous. Using abusive language to a police officer is an offence in itself. 

You also have the right to refuse a search of your person, but remember - if you have been doing something that would cause an ordinary person to believe that you have committed an offence, then you are obligated to allow a police officer to search you. This is NOT an arrest.

If you believe that a police officer has stopped and searched you with no reasonable grounds and there is a subsequent charge that arises, such as assault police if you try to resist, you need to speak to a legal practitioner straight away. Police actions are carefully scrutinised because each police officer exercises such extraordinary powers to interfere with the privacy and liberty of the individual.

Having rights does not mean that if you are doing the wrong thing that you can get away with it by pointing a finger at a police officer. 

Your rights when you ARE under arrest

When you are under arrest you have a number of rights. The first is that you are arrested with reasonable force (s26, Criminal Code). The second is that you are entitled to know the reasons for your arrest (s301(2), Criminal Code). A police officer will generally lay hands on you and indicate 'you are under arrest for ...'. You have the right to ask WHY. The arresting officer should also tell you something along the lines of 'you have the right to remain silent, anything you say or do may be used against you in a court of law, do you understand?'. In criminal law, silence is golden. 

If you believe that you are being arrested as a means of harassment you need to say something along the lines of 'I do not believe you are arresting me lawfully.' Be polite. Be calm. Be courteous. Make your concern clear to the custody officer at the police station. Do not be aggressive or rude. Police officers are people too. 

Your other right is to communicate with a friend or relative AND a legal practitioner (s6, Criminal Law (Detention & Interrogation) Act). This is to ensure that someone knows where you are, and so that you can seek legal advice before being interviewed. You DO NOT have to consent to an interview. You can insist on having a lawyer present. There is NO power for an interview to be conducted in the absence of a lawyer. Silence, again, is golden.

If you do not want to be interviewed, you can indicate to the investigating officer/s that you would like to have your bail considered. Police have powers of reasonable detention (s4, Criminal Law (Detention & Interrogation) Act) where investigations are being carried out with your cooperation. If you are not consenting to the interview, your bail should be considered as soon as reasonably practicable. If the offence for which you have been arrested is a serious offence, you will likely remanded to the Remand Centre before the question of bail is considered, most probably by a justice or magistrate.

Search of the person

While there are restrictions on the extent of search to which a police officer can subject an individual, dependent on their reasonable belief or permission from a magistrate, when you are placed in a Remand Centre for any period of time there are mandatory protocols of search for entry into those centres. These protocols are in place for your safety, the safety of corrective officers, the safety of other inmates, and for police officers. These protocols involve a strip search to ensure that you are not in possession of any items that are either criminal, evidence of an offence or capable of causing harm to you or others. 

These searches should be conducted with consideration for your dignity, and with as little interference with that as possible.

Search and Seizure Without a Warrant

Reasonable Belief and Reasonable Suspicion

Although reasonable belief and reasonable suspicion may seem like the same thing, they are two different standards at law. Reasonable suspicion is a lower standard, requiring ‘I suspect but I cannot prove’. Belief ‘is an inclination of the mind towards assenting to, rather than rejecting, a proposition’. Simply but: suspicion is like a teetering seesaw, and belief is a seesaw with one side more heavily weighted. Different provisions in statutes will set a standard of reasonable belief or reasonable suspicion.

The statutes that apply most frequently for the purposes of search are: the Police Offences Act 1935 (Tas) and the Misuse of Drugs Act 2001 (Tas).

The police have the power to search a hawker’s pack if he reasonably supsects that it contains stolen goods or goods that it is unlawful to sell (s57A, Police Offences Act).

The police have the power to stop, search and detain any person reasonably suspected to have anything in their possession which is stolen, unlawfully obtained or intended for use in committing an indictable offence.

Stolen Goods

Police have the power to seize suspected stolen goods from a person if the seizure does not cause any harm to the person in the course of the seizure. For example, if the person has a shopping bag the police can seize this, but if the person is wearing stolen underwear, or jewellery, the nature of the item may cause the seizure to be an assault.

Drugs

Under the Misuse of Drugs Act 2001 (MODA) section 29, police officers must have reasonable belief before they can search a person, conveyance, or animal for a controlled substance (drugs).

There are also powers of personal search under MODA section 30, which can mean a cavity search. If a police officer reasonably suspects the presence of controlled substances in a person’s rectum or vagina, they must have a magistrate’s order allowing a medical practitioner to search the person’s body cavity or cavities. Strip searches can be performed if the necessary standard of reasonable belief has been reached.

Other powers in regard to drugs are contained within the Poisons Act 1971 (Tas). Many of the powers are similar in the MODA and the Poisons Act for search and seizure. The Poisons Act authorises the seizure of money or valuables where the MODA does not do so.

Premises

Police can search a person or premises for the purposes of investigating a crime when the owner or occupier consents to the search. Other than in the situations covered by statute, police cannot lawfully enter or remain on premises uninvited merely to question a person. If the person does not consent then a search warrant is required. However, if police are entering premises for the purposes of arrest, they have the power to search the premises if they have reasonable grounds for believing that a person named in a warrant for arrest is present (s26ACriminal Code Act 1924 (Tas)). They can also enter premises if they reasonably suspect that a breach of the peace, or other offence, is likely to take place. If someone is arrested on the premises, police can enter the premises, without a warrant, and search that person and their possessions.

A police officer has the power to enter and remain at premises so long as they consider it necessary to protect a person from violence. This is a special power under state domestic violence legislation that is mainly used in domestic violence situations (s10Family Violence Act 2004 (Tas)).

Firearms

The Firearms Act 1996 (Tas) allows police to search a person, any vehicle, package or thing in that person’s possession and seize any firearm or ammunition found. It also empowers them to retain, inspect and copy any record or document that appears to indicate an offence under the Act. Warrants usually require a police officer to apply to a magistrate or justice of the peace for the warrant.

Search and Seizure with a Warrant

Warrants are largely governed by the Search Warrants Act 1997, however the carrying out of search warrants issued under this Act is regulated under numerous other Acts, including the Poisons Act.

Stolen Goods

The Commissioner of Police may issue a general warrant valid for six months to search for stolen goods (Police Offences Act, s60). This includes on the person and in premises and conveyances.

Commonwealth Law

A police officer may search a named place, and seize things under a warrant issued by a justice (Crimes Act (Cth) s.3E). The search and seizure has to be for an offence against a law of the Commonwealth or a law of a Territory. This is because federal and state legislation are generally separate, and federal warrants will only cover federal crimes, while state warrants will only cover state crimes.

Search After Arrest

Police procedure in Tasmania is that a police officer can search a person if they believe on reasonable grounds that it is necessary. It is also authorised under s58B of the Police Offences Act. There are general powers to search on arrest if the nature of the offence – such as a violent offence, requires it. Other offences would include possession of drugs, or if the offender appeared mentally unstable. See Arrest.

Reasonable force

Where a search or seizure is lawful, so is the use of reasonable force. For example, if entry is barred, police are entitled to force or, if necessary, break the lock of a door.

Valid search warrant

When a search warrant is issued, requirements for its issue must be complied with. The justice must be satisfied that there are good reasons for issuing the warrant. The warrant must specify what premises are to be searched, the sort of items to be searched for (for example, stolen goods), the alleged offence and the grounds on which the warrant is issued. If the requirements have not been complied with, the warrant is probably not valid. Warrants are generally issued under the Search Warrants Act 1997. The requirements to be satisfied are set out at section 5 of the Act.

This does not apply to a general warrant issued by the Commissioner of Police to search for stolen goods, issued under the Police Offences Act, s60. This can be issued for up to six months and its issue is not reviewable by a court.

Unlawful action

Material which is improperly or illegally obtained by a police officer in executing a search can be used as evidence against an accused unless the court exercises its discretion to exclude it on the grounds that it would be unfair to the accused to use it (Evidence Act 2001, s138). This usually requires a deliberate abuse of power on the part of the police officer obtaining the evidence. This could take the form of deliberate harassment of a person, or deliberately going beyond powers given by statute in order to create a situation in which to search a person.

If goods have been unlawfully seized and detained (called ‘detinue’) or premises have been unlawfully entered (‘trespass’), a civil wrong has been committed. An action can be taken for damages. If damages are under $20,000 the case may be heard by a magistrate in the Civil Jurisdiction of the Magistrates Court. However, it is usually preferable to take the case before a judge in the Supreme Court.

Retention of property

In general, police are not entitled to keep property without the owner's permission except as a result of arrest or under a warrant, unless the property is material evidence needed to prove the crime, or the refusal of the owner to allow seizure is unreasonable, or on the condition that the property be returned as soon as is reasonably possible.

Hindering

Generally, it is an offence to resist a police officer in the execution of their duty, see Police Offences Act, 34B.

Arrest

Arrest Without Warrant

Most arrests are made without a warrant. Under the Criminal Code 1924, a police officer can arrest a person without a warrant when the person is committing a crime; when the person is found loitering in circumstances which suggest they may be about to commit a crime; where the police officer believes on reasonable grounds that they have committed a serious crime; or the person is committing, or is about to commit, a breach of the peace.

A police officer has additional powers to arrest people for committing all but trivial offences under the Police Offences Act 1935. However they are duty bound to consider whether using a summons to bring the person before the court should not be used instead.

A police officer may also arrest a person whom they believe to have breached their bail or is reasonably believed likely to do so or appears to be in breach of a restraint order.

Under the Crimes Act (Cth) any police officer can arrest a person without warrant when a breach of the peace has been committed or is thought, on reasonable grounds, to be about to be committed (the breach must involve an offence against the Crimes Act (Cth); or the police officer believes, on reasonable grounds, that a person has committed an offence against a law of the Commonwealth, and a charge against the person could not be effectively dealt with by summons.

Many Acts have powers for arrest without warrant where there is reasonable suspicion of an offence being committed under the Act. Parks and Wildlife Service officers for instance can arrest without warrant where the officer has reasonable grounds for believing that a person has committed an offence under the National Parks and Reserves Management Act 2002 (Tas) and for the purpose of arresting that person can enter, by force if necessary, any premises on which the officer has reasonable grounds for believing that person to be present (s66). Customs officers have similar powers.

Arrest With Warrant

A warrant is a written authority from a justice, magistrate or judge for the arrest of a named person. It can be issued for an offence, failure to pay a fine or failure to appear in court. A warrant authorises all police officers to arrest the person named wherever and whenever they may be found. A person arrested on warrant must be brought before the court.

Valid Arrest

There are three elements of a valid arrest. Firstly, words indicating that the person is being arrested (for example, "you are under arrest"). Secondly either touching the arrested person, or that person submitting by going with the police officer or staying where they are told. Thirdly indicating a reason for the arrest. It is not necessary to specify precisely the charge so long as the person knows why they are being arrested. If it is obvious from the situation, then it is not necessary to formally tell the person. It is not necessary for the police to stop and tell the person the reason if the person makes communication difficult, for example, by trying to escape.

Force in Arrest

A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. It is up to the judge or magistrate to decide whether or not the force used was reasonable in the circumstances. Private citizens are also entitled to use such force as they believe on reasonable grounds to be necessary to prevent the commission of a crime (Criminal Code s39).

Entering Private Property

Whenever a police officer has a right to make an arrest, with or without warrant, they have a right to enter private property to make such an arrest. However, this does not extend to entering private property for the purpose of taking a person into custody following refusal to submit to a breathalyser test.

Arrest when Trespassing

A police officer cannot arrest a person trespassing on land without first giving that person an opportunity to leave that land by the shortest practicable route.

Resisting Arrest

It is an offence to resist or hinder or to incite any person to assault, resist or hinder a police officer in the execution of their duty, including the making of a lawful arrest. The resistance must be active. Merely lying down and refusing to co-operate is not resisting arrest. Neither is running away from a police officer before a valid arrest has been completed. However, running away is evidence of ‘consciousness of guilt’ and is used against a person in court.

An arrest may be valid if the police reasonably suspect that a person has committed an offence, even if they are completely innocent. If the person resists arrest, they commit a further offence and can be charged with resisting even if the police do not proceed with any other charge.

Citizen's Arrest

The right of arrest by a private citizen is limited to situations such as where a crime has been committed or attempted; where there is immediate danger of a crime being committed; where a ‘breach of the peace’ has been committed or is thought, on reasonable grounds, that it is about to be committed; or where there has been or is serious danger of substantial injury to a person or a person's property or public property.

‘Breach of the peace’ justifies an arrest when there is an assault, public alarm and excitement is created, or a person obstructs a police officer in the execution of their duty. Mere annoyance, disturbance, or insulting or abusive language are not sufficient to allow a person to arrest another person.

When a security guard at a retail store, for example, makes an arrest, they do so as a citizen.
A person exercising a power of arrest must be careful or the person arrested may sue and obtain damages for false imprisonment. To lessen the chance of this, the person arrested should, without delay, be handed over to the police with a full recorded explanation of the reasons for the arrest.

A person is obliged to hand over a person arrested to the police as soon as practicable in any event and the police must bring that person before a justice as soon as is practicable after they have been taken into custody (Justices Act 1959 s34A). A person taken into custody may however be detained by a police officer for a reasonable time for questioning, carrying out investigations, or to arrange for the person to be brought before the court (Criminal Law (Detention and Interrogation) Act 1995 s4(2)). Thus, in practice a person should be brought before the next available court. Special courts will sit at weekends and in the evening to protect this very important right of every citizen.

What to do if Arrested

Information cards and pamphlets are available from community legal centres that set out what to do in the case of arrest.  These may be useful particularly for vulnerable groups with little knowledge of the law or police powers. There are several rights and obligations that you have when under arrest. You should:

  • Be polite and courteous
  • Refrain from being rude
  • Not resist arrest, as this can be the basis of a further charge against you

You are obliged to:

  • Give your name and address
  • Your age if you are on a licensed premise
  • State your source of supply if you are found in possession of drugs

You have the following rights:

  • If you are over 17, you can ask to make a telephone call, but in some situations can be denied
  • If you are under 16 years of age, ask to make a telephone call
  • Ask for bail
  • State clearly that you won’t answer any questions until you have spoken to a lawyer
  • Silence – you do not have to say anything

If a police officer asks a person “to accompany them to the station” and they do not want to go, they should ask whether they are being arrested. If the police officer says they are being arrested, the person should ask “what for?” as the police are bound to tell them. The person can also ask the police officer to identity themselves.  If the police say they are not arresting the person then the person may walk away.

Where a person has been arrested and suspects that the arrest is not lawful, verbal objection should be made as frequently as possible, preferably in the presence of independent witnesses.

In almost every case, it is advisable to make some independent person aware of the fact of the arrest and of where the person is being held. A lawyer should be contacted and requests for the presence of a lawyer should be made (see below).

No attempt should be made to resist the arrest. It is up to the police officer to decide whether a suspect is to be arrested or summonsed. The conduct of a person will often influence which course the police adopt. In the case of minor offences, polite conduct towards the police may prevent a charge being laid at all. Co-operation with the police is always advisable where there is nothing to be lost by co-operating.

What to do if arrested

Information cards and pamphlets are available from community legal centres that set out what to do in the case of arrest.  These may be useful particularly for vulnerable groups with little knowledge of the law or police powers. There are several rights and obligations that you have when under arrest. You should:

  • Be polite and courteous
  • Refrain from being rude
  • Not resist arrest, as this can be the basis of a further charge against you

You are obliged to:

  • Give your name and address
  • Your age if you are on a licensed premise
  • State your source of supply if you are found in possession of drugs

You have the following rights:

  • If you are under 16 years of age, ask to make a telephone call
  • If you are over 17, you can ask to make a telephone call, but in some situations can be denied
  • Ask for bail
  • State clearly that you won’t answer any questions until you have spoken to a lawyer
  • Silence – you do not have to say anything

If a police officer asks a person “to accompany them to the station” and they do not want to go, they should ask whether they are being arrested. If the police officer says they are being arrested, the person should ask “what for?” as the police are bound to tell them. The person can also ask the police officer to identity themselves.  If the police say they are not arresting the person then the person may walk away.
Where a person has been arrested and suspects that the arrest is not lawful, verbal objection should be made as frequently as possible, preferably in the presence of independent witnesses.

In almost every case, it is advisable to make some independent person aware of the fact of the arrest and of where the person is being held. A lawyer should be contacted and requests for the presence of a lawyer should be made (see below).

No attempt should be made to resist the arrest. It is up to the police officer to decide whether a suspect is to be arrested or summonsed. The conduct of a person will often influence which course the police adopt. In the case of minor offences, polite conduct towards the police may prevent a charge being laid at all. Co-operation with the police is always advisable where there is nothing to be lost by co-operating.

Drink Driving and Arrest

Under the Road Safety (Alcohol and Drugs) Act 1970, police officers have powers relating to drug and alcohol consumption in drivers. Since the introduction of random breath testing, a driver must take a breath test when stopped and asked to do so by a police officer (s7A). If that test is positive, then that driver must undergo a breathalyser test. This is also the case where a driver commits an offence (including a traffic offence), is involved in an accident, or is found in a situation where police reasonably believes the person has just been driving or is about to drive. There are also powers for police officers to require a driver of a motor vehicle to undergo an oral fluid test to test for illicit drugs (s7B). A positive breath test most often will mean a trip to the nearest police station to be processed. The breathalyser test will be administered, the level of alcohol recorded, and your details noted so that a court appearance letter can be mailed to your address.

The legislated powers for traffic cases have created police powers so that any person who is driving a motor vehicle on a public street is required to comply with police directions to undergo a breath test or oral fluid test. There does not have to be a reason to suspect or believe the person has committed or is committing an offence. You can also be followed on to private property by police officers to have a breath analysis performed, if you have attempted to evade this procedure by entering on to private property.

A person may be detained for a random breath test for so long as it is reasonably required to administer that test. If that test is positive, a person may be further detained to enable the administering of a breath analysis. This may be done either in a random breath test station or at a police station. It is the duty of police officers to ensure that they do not cause a person to be detained for a period longer than is necessary for the proper exercise of the powers conferred by the Act (s7A(5)).

A person can request a blood sample be taken after receiving a statement of the blood alcohol reading on a breath analysis (s11). If a person does request a blood sample be taken, a medical practitioner or qualified nurse must carry out the request within 3 hours of the time of the alleged act of drink driving (s24(1)(b)) or the original breath analysis will not be admissible in evidence in any proceedings under the Act. This does not apply if the person refuses to submit to the taking of blood after appropriate arrangements were made to do so within the 3 hour period (s24(1)(b)(ii)).

Police Powers

Motor vehicles present a different case to other circumstances, because police have a broader range of powers to stop and ask people to identify themselves, and direct people to undergo breath and swab tests than in any other circumstances. This is a public safety issue because of the dangerous nature of motor vehicle accidents, and the contributory factors of alcohol and drugs to motor accidents. This means that police can require you to stop, submit to a breath test, and produce identification at any time that you are driving.

Some of the powers concerning traffic and vehicles are contained in the Vehicle and Traffic Act 1999, particularly Part 7 – Compliance and Enforcement. This applies where there has been or is suspected to be an offence. Where the driver of a motor vehicle is charged or suspected of being guilty of a traffic offence or where the vehicle has been in an accident, a person (if able to do so) must give the name, age and address of the driver of the motor vehicle when required to do so by the police. A person must also give a specimen signature for identification when asked to do so by police.

More generally, it is an offence to not carry your licence whilst driving or to refuse to produce your licence if requested to do so by a police officer (s46A). It is also an offence to drive in excess of the allowed alcohol limit for your particular license, to drive without a license, drive in excess of the speed limit, drive outside the permissions in a restricted license, or drive outside the permissions of any other particular license. The penalties for these can be found in the Vehicle and Traffic Act in Part 3 – Motor Vehicle Drivers. The permitted speed limits and alcohol levels for learner and provisional licenses are outlined on the Service Tasmania website.

After Arrest

Interviews and talking with the police

But we were just talking!

There is no such thing as an ‘off the record’ conversation with a police officer, irrespective of the time or place of such a conversation. This includes overheard conversations. However due to alleged abuses in the past, it is now expected that any admissions of the accused will be recorded on video. 

Making an Admission

If a person verbally agrees with the statement of another person after reading it, then it is regarded by the law as being adopted and may be later tendered in evidence against that person. Words, silence or conduct may amount to an admission of what a police officer has put to the person. However, no adverse inference can be drawn from their refusal to answer questions which they have been expressly told that they are not bound to answer, or from their silence after they have been told they need not speak at all.

The police can and do use verbal statements.

The Right to Silence

In the majority of cases, it is their own admissions used as evidence that convicts people. This is why the right to silence is so important. It is the right to not incriminate oneself.

As a general rule, a person does not have to answer questions except to provide their name and residential address. Legally, no adverse inference can be drawn against them for refusing to answer questions especially if their refusal is a consequence of their known right to silence.

However a refusal to answer some questions but not others can give rise to an inference of a ‘consciousness of guilt’ about the subject matter of the unanswered questions. The inference is that the answer would not be helpful to their case but it is not an inference of guilt. As juries and magistrates are only human, failure to answer questions might be misconstrued in court.

In addition, the person’s answers could determine whether or not the police will proceed with the matter. However, any suggestion from a police officer that by making a statement the person will make things easier for themselves should be ignored. It is for the court alone to determine what will happen.

Questioning

The police have the power to ask questions before charging a person. Questioning may be informal (for example, by way of conversation) or formal (for example, by way of a record of interview). After being charged, the person should only be questioned where necessary to prevent loss to some other person or body, to recover property, or if fresh charges are being laid against them.

Under the Criminal Law (Detention and Interrogation) Act 1995, a police officer can detain a person for a reasonable time for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence. A reasonable time also includes the time it takes to transport and bring a person before a magistrate or justice. What constitutes a reasonable time will depend on a number of factors, enumerated under section 4(4) of the Act.

What is a caution?

Before questioning a suspected person, the police should caution them that no questions need to be answered but that any answers given may be used in evidence. If the case goes to court, the police may use evidence of such caution to show that what the accused said afterwards was said freely and voluntarily. A statement taken in the police station will conclude with questions about whether or not a caution was given and understood and whether the statement was made voluntarily. If no caution was given, this does not mean that statements made cannot be used.

Whether or not the court will use statements given without a caution as evidence is at the discretion of the court.

Written Admissions

Written admissions are sometimes written by the arrested person and signed, or they are typed or written out by a police officer and signed by the arrested person. Written statements can be used as evidence in a court of law. As with verbal statements, it is at the discretion of the court to decide to use or not use evidence if a defendant challenges the admissibility of the evidence, alleging an abuse of police power.

Statements

Sometimes it will be in a person’s interests to make a statement, if possible, with the advice of a lawyer. It is important, therefore, to request to speak to a lawyer.

It may be desirable to talk to police if the person has a valid explanation for their behaviour: for example, in a case of theft, if they had the consent of the owner. A caution should be given by police to a person whether they wish to speak or not.

A person who, after legal advice, wants to plead ‘guilty’ may wish to talk to police to get on record the exact extent of their involvement or to explain the circumstances of the offence. Where a person wants to surrender to police, a lawyer can assist in preparing a statement of these matters.

If the person doesn’t want to say anything to police, that attitude should be made clear and never changed. They should state their name and address, and words such as "I do not want to answer any questions" and continue to make this answer to every question. There should be no change, even if they are asked about the reason for their attitude.

On completion of the interview the suspect may be taken to an independent police officer (not present at the interview) and will be asked if they have any complaints about the interview, for example, police behaviour, content, any violence or unfairness, and so on. The suspect may then adopt it as their record of interview. This procedure is referred to as the ‘Register of Persons Interviewed’. The suspect may also state any objections they have during the interview itself.

Other People's Statements

Another person's statement may be shown to a suspected person. The suspected person is not, however, obliged to respond in any way and should be cautioned first. Responding to another person's statement or record of interview can be a very dangerous exercise for a person who does not want to plead guilty to any charge that might be laid.

Getting Help

There is no absolute legal right to have an independent witness or a lawyer present during questioning. However, the courts have decided that a lawyer should be allowed to be present if requested by the suspected person and the interrogation should be delayed a reasonable time for the suspect to try to get legal advice. In Tasmania, there is a right to communicate with a friend, relative or legal practitioner (s6, Criminal Law (Detention and Interrogation) Act 1995 (Tas)).

The denial of access to a lawyer, in some circumstances, may lead a judge to exercise their discretion in rendering a confession inadmissible if they think that this denial amounts to unfair treatment of the accused.

Further, the Tasmanian Police Standing Orders say that a person should be given access to a lawyer. These standing orders are a set of recommendations from the Commissioner of Police to police concerning proper procedures. Although these are not legally enforceable rules and are only a general guide of the appropriate standard of propriety a judge may exercise a discretion to exclude a confession if there has been a breach of these rules. Failure to warn a suspect of their right to remain silent is regarded as a serious breach and has warranted the exercise of this discretion on occasions. However, a breach of these rules will not in itself always result in exclusion of this evidence.

If a person has gone to a police station voluntarily and is not under arrest, they can refuse to supply information or even to remain at the police station until a lawyer or independent witness is present. If under arrest, a person can still refuse to answer questions but this will not necessarily prevent them being asked.

If a lawyer requests access to a person in custody and is refused, the fact that they made such a request and the names of all persons spoken to should be noted down. It can then be used as evidence casting doubt on the truth and voluntariness of any record of interview.

If access is denied, a written or verbal complaint can be made to the superior of the officer concerned or to the Commissioner of Police. In addition, the Register of Persons Interviewed procedure now provides a suspect with an opportunity to complain at an early stage, as does the video interview itself.

Children are in a special position. Police Standing Orders say that they should not be questioned without a parent or guardian present, or failing that, a child welfare officer. Police should attempt to contact an appropriate adult. If this procedure is not followed the admissibility of any statement, confession or admission may later be challenged in court.

The Police Standing Orders provide that after a person has been charged, facilities should be made available to allow that person to telephone a friend, relative, solicitor or doctor. A request should be made. It is advisable to be circumspect when telephoning from a police station where what is said may be overheard and can be used later in evidence.

Once again, it should be noted that the Police Standing Orders are not legal rules and do not confer rights. If they are not obeyed, however, a complaint should be made, and the conduct of the police could then cast doubt on the voluntariness of any admission or confession. It may also provide a basis for challenging the admissibility of any statement on grounds of unfairness to the accused (see below).

Illegal Police Action

Involuntary Confessions

A confession is not admissible as evidence in court unless it was made voluntarily. To be voluntary a confession must be:

  • of a suspect's own free choice; and
  • not be made as a result of oppressive conduct, for example, intimidation, violence, promise, threat, undue insistence, duress, pressure, coercion or causing a suspect to confess due to mental or physical exhaustion etc; and
  • not be made as a result of inducements, for example, by suggesting that confession will produce a beneficial result or failing to do so will have a detrimental result. Such an inducement must be made by some person in authority, such as a police (or prosecuting) officer or made by some person not in authority but who is in the presence of someone in a position of authority and the person in authority does not disassociate themselves from the person making the inducement. In such a case the inducement must cause the confession.

Where the confession is not voluntary it can be challenged in court and a ‘voir dire’ (a trial within a trial) is held to decide whether the confession or statement was made voluntarily. At the voir dire, the prosecution must establish voluntariness, but it seems not on the usual criminal standard of proof which is ‘beyond reasonable doubt’.

The law remains uncertain as to what standard of proof is needed. There are conflicting decisions of the Tasmanian Supreme Court. The standard of proof for establishing voluntariness is either that of the balance of probabilities which is the usual civil standard of proof, or a ‘variable’ one lying somewhere between the criminal and civil standard of proof depending ‘on the circumstances’.

Malicious Prosecution

Malicious prosecution occurs where a person maliciously and without reasonable cause starts criminal proceedings against another. A person is liable for malicious prosecution if, on their complaint, the police prosecute the other person. The person must actively instigate the prosecution, for example, by laying a charge. Merely providing information is not enough. The person is not liable if the police make an independent decision to start proceedings.

Action for false imprisonment or malicious prosecution should be taken in the Supreme Court. Legal representation is advisable. It may be difficult to prove either that the police did not have reasonable cause to arrest or that the person had malicious motives in instigating the prosecution.

False Imprisonment

False imprisonment occurs if a person is unlawfully restrained against their will. It is also false imprisonment when a person submits to the control of another because of an unlawful threat of force or assertion of authority.

If a person voluntarily goes to the police station, there is no false imprisonment because there is no detention against that person's will. But if a person goes to a police station out of fear of the consequences (for example, public humiliation), the submission is not voluntary and may be regarded by a court as false imprisonment.

The defendant in a case of false imprisonment will be either the person who actually detained the plaintiff or the person who directed the police to arrest the plaintiff when they would not otherwise have done so.

There is no false imprisonment if the police arresting had reasonable cause or a warrant.

What to do

In the event of police mistreatment, the following steps should be taken if possible. An immediate complaint should be made to the officer concerned and their superior. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Such a complaint can now be made immediately following an interview (or even during the interview if it is an audio-visual one, so that the complaint is recorded). Verbal complaints should be confirmed in writing, if possible, by a solicitor.

An immediate medical examination should be arranged in a case where there is physical violence. Police Standing Orders provide that a telephone call by a person in custody may be made to a doctor. Failing this, a person should be examined at the earliest opportunity and if any external injuries are evident, photographs should be taken.

People should be contacted who saw the person concerned not long before the arrest. They should be asked to look at any injuries and to state (in writing) whether they observed them beforehand.

A full statement of what occurred should be made by the person alleging mistreatment while the incident is still fresh in their memory. Action may be taken for assault and/or false imprisonment. A complaint can be made to the Commissioner of Police and if this is not satisfactorily dealt with the matter can be further investigated by the Tasmanian Ombudsman.

Civil proceedings may be preferable to criminal action. Criminal proceedings against the police are especially difficult since complaints must be made to the police themselves (though a ‘private prosecution’ is possible).

Exclusion of Evidence in Court

There are two main reasons why judges can exercise their discretion to exclude evidence. The first is that a judge has a discretion to exclude evidence of statements if the manner in which they were obtained is considered to have been improper. This discretion is unique to confessions and may be exercised even if the confession is technically voluntary. Thus, a confession may be rejected if, in all the circumstances, it would be unfair to use it against the accused. The theory behind this discretion is to discourage police misconduct, to ensure reliability of evidence and to protect an accused's right to silence. The discretion is contained in section 138 of the Evidence Act 2001 (Tas).

Breaches of Police Standing Orders, though they are not legally binding, and denial of access to a lawyer frequently justify the exercise of this discretion.

The overall purpose of this discretion is to ensure fairness to an accused. However a judge has to be concerned with broader public considerations such as the public need to bring about the conviction of criminals. This has to be weighed against the public interest in the protection of an individual from unlawful and unfair treatment. If the latter outweighs the former, the discretion should be exercised.
Secondly, the judge has a discretion to reject other evidence sought to be tendered against an accused by reference to the fact of it having been obtained by unlawful or unfair means.

In particular, it is not legal in Tasmania to simply detain a person for questioning even if they are lawfully under arrest. The duty of the police is clearly to take such a person before a court ‘as soon as practicable’ (s4, Criminal Law (Detention and Interrogation) Act 1995). If this is not done, the court may in exercise of its discretion exclude any confession obtained from use as evidence.

Other kinds of illegality or impropriety to which the discretion applies are illegal searches and seizure, illegal blood and skin tests and medical examinations, illegal phone tapping and interception of mail, and the use of tricks, lies, eavesdropping and entrapment. The police may deceive a suspect about their identity in order to obtain evidence or information of criminal activity.  This is permissible providing it is used merely to assist the police in their enquiries and does not cause a person to commit a crime which would otherwise not have been committed.

Finally, it is up to an accused person to persuade the judge to exercise their discretion.

Civil Compensation for Illegal Police Actions

Civil court action can be taken in some cases of police misconduct (for example, trespass to persons or property, assault, wrongful arrest, false imprisonment or malicious prosecution). There have been a number of recent well-publicised cases, most of which have failed but which have highlighted the need for police officers to be accountable for their actions.

Customs officers are protected from anything done under the Customs Act 1901 (Cth) if there was reasonable cause (s220). This protection seems to be exhaustive, although it has never been tested in any civil action. It would appear that no crime need be proved to establish reasonable cause.

Interviews, Examinations and Line-ups

Medical Examinations

The Forensic Procedures Act 2000 authorises medical examinations of persons suspected of, or charged with offences in the detailed circumstances which it specifies. No forensic procedure on a person under ten years of age is permitted (s4).

The procedures authorised under the Act are intimate procedures where a suspect or person charged is 15 years or older, where that person has given informed consent, or upon the order of a magistrate; non-intimate procedures on a charged person if any police officer so orders if the person is in custody; and if the person is not in custody on the order of an officer of or above the rank of Inspector; and where a suspect or person charged is under the age of 15 years if that person and his or her parent has given informed consent or on the order of a magistrate.

Non-intimate procedures may be carried out on a person serving a sentence, a parolee and a person subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999.

Persons may volunteer submission to forensic procedures if they give informed consent and if under the age of 15 years both they and their parent give such consent (s8).

Procedures have to be carried out in circumstances affording reasonable privacy and in a manner consistent with appropriate medical or other relevant professional standards. The procedures can be carried out with reasonable force to enable the procedure and to prevent loss, destruction or contamination of sample. The most intimate procedures should be carried out by a person of the same sex as the person undergoing the procedure.

Records of Interviews

Written interviews are rarely used when audio-visual equipment is now available. If written interviews are now used, it may be suggested in court that the police did not want the interview recorded for various reasons.

If a written record of the interview is required, this may be done in ‘question and answer’ form, handwritten or typed. In either case, the person will be asked to sign it but does not have to do so.

In law, when a person reads and signs a document or agrees that it is correct, they are adopting everything in the document. There is no objection to a person reading and signing a record of interview that contains no answers other than refusals to answer, unless of course the police need a specimen of handwriting to be used in court.

There can also be no objection to a person reading and signing a statement or a record of interview where the person knows and understands what the document contains and does not mind the words in the document being recorded as theirs.

In all cases, however, where words of a person are recorded by the police, a copy should be requested and supplied free of charge.  The person concerned needs a copy so that the extent of any admissions can be seen before going to court. A written signature is usually requested as a receipt. If the person does not want to sign for the document, it is better to do without the copy. It can in any case be obtained by the person or their lawyer later on by requesting it in writing.

Because it is expected that interviews of suspects by police will now take place on video, what is said to the police and what is contained on any written transcript can now be checked by the court. However in cases being prosecuted by other branches of government it is possible that video facilities may not be available.  In such cases the record of interview may be in dispute. A person should not sign a record of interview if they have not read it, if they do not understand part or all of it or if they disagree with all or any of it.

Unsigned records of interview can still be used as evidence in court. Section 81 of the Evidence Act 2001 can be used to admit direct oral evidence from a police officer that a suspect confessed to being guilty. The police officer may put this representation in a document (i.e. the record of interview) to establish the fact the suspect confessed to them, provided the police officer had personal knowledge of matters dealt with by the representation, namely the confession of guilt.

However, where the accused denies the truth of the document, the magistrate or judge will sometimes refuse to admit it to evidence. For example, evidence that a legal adviser was refused access to the accused may cast doubt on the truth of the record of interview so that it will not be admitted.

There are certain requirements regarding unsigned records of interview:

  • An accused must have acknowledged or adopted the document (by agreeing that it is correct;
  • A copy of the document must also be shown to the accused as soon as practicable (as failure to do so may give rise to a suspicion that it has been altered);
  • A judge still has a discretion to exclude it on grounds such as unfairness, prejudice, unlawfully obtained, undue weight, etc.
  • Further, unless the reliability of the unsigned and disputed record outweighs its prejudicial effect, a proper exercise of the discretion requires that it should not be admissible in evidence. This is so even if the accused has acknowledged it to be correct in front of an independent person.
  • As a matter of practice, a judge should warn a jury of the dangers of relying on disputed confessional evidence obtained by police where it is not independently corroborated. The audio-visual recording of interviews provides reliable corroboration of a confessional statement and therefore no such warning is necessary where this procedure has been adopted.

Fingerprints, Photographs and Line-ups

After a person has been properly arrested and charged, police have the power to photograph and fingerprint a person in the case of all but a few minor offences. Reasonable force may be used to do this. Such evidence can be used to identify a person at the time and later on in court. These records should be destroyed within seven days if the person has no previous relevant record and no conviction results from the charge. Persons under fifteen cannot be photographed and finger-printed unless they have consented (s8, Forensic Procedure Act 2000 (Tas)).

It is unclear whether a person can be forced to take part in an identification parade or ‘line-up. However, unwilling suspects can easily abort the proceedings by drawing attention to themselves. Police Standing Orders lay down the procedure for line-ups. A suspect's rights are to choose any position and to complain about any aspect of the procedure.

The sergeant in charge of a line-up is meant to be independent of the officers investigating the case. A complaint to that sergeant should be made, and recorded, where those on the line-up are not of similar age, height, general appearance or class as the suspected person. Participants in line-ups are advised to make written notes of all aspects of the process as soon as possible afterwards.

The failure of a witness to identify a suspect in a line-up can be relied upon in asserting innocence to a court. If a suspect is identified, a challenge to the conduct of the line-up can still be made. This will be easier to do if a complaint was made and recorded at the time.

The High Court has taken the view that an identification parade, rather than photographic identification, is a much fairer procedure for the accused. This is because the identification is in the presence of the suspect who can observe for themselves if any unfair procedures or techniques have been adopted.

Identification parades tend not to highlight the position of the accused as a ‘suspect’ if the people in the parade are of similar age, sex and height and so on. Whereas, a suspect is not present when an identification is made from photographs which are produced from police records and the existence of a photograph in police records may suggest a propensity to commit offences of the kind in question.

A warning is to be given by a trial judge to a jury in relation to identification evidence in every case where such evidence represents any significant part of the proof of guilt of an offence.

Criminal Charges and Bail

Charging

Criminal proceedings are started by a formal allegation (charge) by, say, a police officer, that a person did something which is forbidden by law. A suspect cannot be dealt with until they have been formally confronted with the allegation.

Police Bail

Police have the power to grant bail to a person who has been arrested with or without a warrant. The power to grant bail is at the discretion of the police. Police can release persons from custody provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so. There is a section dedicated to Bail.

Bail

‘Bail’ is an undertaking which secures the release from custody of a person charged. It is conditional upon that person appearing in court at a specified time and place. There may be several further conditions placed upon a person, depending on the seriousness of the offence alleged to have been committed and the history of the person arrested. The power to grant bail is given to police officers and also the courts.

Not everyone arrested for an offence is required to be granted bail. In the case of minor charges (e.g. traffic, shop lifting), a summons directing the person charged to appear in court may be issued. If the person charged fails to appear on the date on the summons, a warrant may be issued for their arrest if there is proof that the summons was served on them; or a further notice to appear can be issued. If the charge is of a very minor nature the matter may be dealt with ‘ex parte’ (in the person's absence).

Bail in Tasmania is in the main governed by the Bail Act 1994 (Tas). However there are also provisions for the granting of bail under sections 304 and 305 of the Criminal Code Act 1924 (Tas), sections 34 and 35 of the the Justices Act 1959 (Tas), and section 12 of the Family Violence Act 2004 (Tas).

Police Bail

The granting of police bail is governed by section 34 of the Justices Act. This provides a discretion to the police to release persons from custody, provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so.

A person released on police bail is provided with a police bail document which provides information of the charge and the date and time that the person has to appear in court, and any other conditions of bail that the police require. The person released must undertake to appear on the date and time as set out in the bail document and to adhere to any other bail conditions. It is an offence to not attend court in accordance with the police bail document or to breach any other conditions set out in the document.

If a person is arrested on a warrant they must be brought before a court to determine if further bail should be granted or if the conditions of police bail should be varied.

Court Bail

Any person charged with an offence who is not released from custody may apply for bail. There is a presumption that anyone charged is innocent until proven guilty. Accordingly, there exists a presumption in favour of an accused person that they should be granted bail until their matter can be dealt with. The desire to not hold people in custody before their trial may however at times be overridden by a need to protect the public, if for instance the offence is of a very serious nature e.g. murder, or if the accused person has in the past shown a disregard for court orders and is unlikely to attend court if granted bail.

If bail is not granted at a person's first court appearance, applications can be made at any subsequent appearances, subject to the provisions in section 22 of the Bail Act.

If a person charged is not granted bail and is remanded in custody, they must be brought before the court every 28 days for a formal remand.

In granting bail the court takes into account the following important considerations:

  • will the person appear to answer the charge;
  • is it in the public interest to release them;
  • are they likely to re-offend if granted bail.

Other relevant matters for consideration are:

  • Occupation and how long the applicant has been at that particular job. Will the applicant lose their job if denied bail?
  • Marital status, dependants, financial circumstances (income and expense);
  • If unemployed, how long have they been unemployed; what efforts have been made to obtain work; what is the likelihood of obtaining work?
  • What is the applicant charged with; have they been charged with similar offences in the past; if so, how long ago?
  • Is there anyone who will go surety (see below) for the applicant? If yes, that person should be in court and available to sign the bail paper at every court appearance.

Surety

A surety is a person who accepts responsibility for the accused, answering their bail and reporting conditions stated on the bail paper. The surety might be a spouse, parent or friend of the defendant. If the defendant does not appear or breaches any bail conditions, the surety is likely to be ‘estreated’. This means that the surety, if an estreatment application is made, will be liable to pay the whole or part of the sum of money that was put forward to secure the release of the person charged. So if bail was set at $10,000, the surety will have to pay this sum.

Often there is no requirement for the surety to provide the actual cash amount set down by the court at the time of granting bail, but a surety may have to establish to the satisfaction of the court that they have the resources to pay if called upon. Thus if a surety has steady employment or has a car or house this would be evidence that the court would consider in deciding whether to accept the surety.

If a surety is not available at the time when an application is made, then the applicant can either ask that the matter be ‘stood down’ until the surety arrives at court or arrange for the surety to visit and sign the paper at the jail provided that they are accepted as a suitable surety by the court.

A surety should be satisfied that the person for whom they are going surety will adhere to the bail conditions sought. If the surety becomes aware, or should have become aware, that the person has broken one of their bail conditions (see below) or may not turn up in court, they should contact the police. Not to do so means that the sum of money set as surety becomes liable to be forfeited on an application brought by the prosecution section.

The Magistrates Court has the jurisdiction to grant bail on all offences except murder. Only the Supreme Court has jurisdiction to grant bail for murder.

Bail Conditions

The court has the power to make bail subject to a wide range of conditions. Examples of such conditions are as follows:

  • that the person reside at a particular address;
  • that the person report to the nearest police station on particular days between prescribed hours;
  • that the person not be absent from their residential address between certain hours (that is, a curfew);
  • that the person not approach another person directly or indirectly. (This is especially common in cases of offences involving violence such as assault, wounding or rape.)

Less commonly, the court may impose conditions that the person not be in particular localities or associate with particular persons. The person may also be required to hand in their passport and not be found within a certain distance of any air and sea terminal, if it is believed the person is likely to leave the state while on bail. A surety (see above) is also a condition of bail.

In the case of drink driving offences it will often be a condition of bail that the person charged must not drive with any alcohol in their body, or, in more serious cases, not be found behind the wheel of a motor vehicle.

Such conditions are imposed to try to control the behaviour of people on bail by keeping track of their movements and stopping them from re-offending while on bail. Conditions are usually sought through the prosecutor, though the court can impose bail conditions itself.

Breach of bail conditions is a serious matter, for which the person can be arrested and brought before the court. If the breach is proved, the person breaching the condition is liable to a fine or imprisonment. It may also mean that the court will be reluctant to grant bail in the future.

Review of Bail Decisions

Where a refusal of bail or the imposition of particular bail conditions is reviewed, this review is treated as a new application for bail. The following rules apply to the review of bail decisions:

  • a magistrate can review the decision of a justice of the peace;
  • a judge can review a decision of a magistrate;
  • the Full Court of the Criminal Court (that is three judges) can review the decision of a single judge.

If in prison, forms for an application to review a bail decision can be obtained from the prison authorities.

Bail Pending Appeal

If a person is convicted of a matter, they may wish to appeal either or both the sentence or the conviction. In these circumstances they may wish to apply for bail pending the outcome of the appeal, pursuant to section 415 of the Criminal Code.

Bail in these instances will only be granted if special circumstances exist. The most common situation where bail will be granted is if the applicant has been given a short sentence, and they are likely to have served their sentence prior to their appeal being heard.

Bail and Family Violence

There are special considerations that apply when a court, judge or police officer is considering bail for a person charged with a family violence offence. The primary consideration is whether the person’s release would be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child (s12(1), Family Violence Act 2004). In other words – would the person continue to behave in a violent manner toward a family member or child?

Other considerations include, but are not limited to:

  • any available risk screening or rehabilitation program assessment;
  • the person's demeanour;
  • the result of any available safety audit;
  • the availability of suitable accommodation for the person and any affected person or affected child;
  • any other matter the judge, court or police officer considers relevant (s12(2)).

If a person is charged under the Family Violence Act with breaching a family violence order (FVO) or a Police Family Violence Order (PFVO), they are not to be admitted to bail (s12(3)).

Extradition

'Extradition' is where a person is sent from one state (or country) to another to be tried for a criminal offence. A justice in one state issues a warrant for the arrest of a person (Service and Execution of Process Act (Cth) 1992).  The warrant is taken to the state where the person lives, say, NSW. The person is arrested (or taken from jail) and brought before a justice (usually a magistrate) in NSW.

The magistrate then can order the person returned to the state where the interstate warrant was issued in the custody of the police officer bringing the warrant; or allow the person bail on the condition that they appear in a particular court in the other state; or allow the person bail until the end of a period of time during which the person should be sent to the other state; or release the person; or make any other order they think fit.

An order to effect the return of the person must be made by the magistrate unless they are satisfied that the charge is trivial; or the application for the return of the person has not been made in good faith and in the interests of justice; or it would be unjust or oppressive to return the person either at all or until the expiration of a certain period; or  it appears on undisputed facts that the person would, if tried, be acquitted of the charge for which extradition is sought.

It is rare for an apprehended person to avoid extradition. Unlike overseas extradition, the absence in Tasmania of an offence comparable with the offence charged in the other State will not allow the person to avoid extradition.

The person apprehended should seek full particulars of the offence charged, before trying to persuade the magistrate not to extradite. Legal representation is strongly advised. Cross-examination of the interstate police may provide useful information as to the strength of the police case, thus enabling better preparation of the defence later on.

Offences under the Police Offences Act and the Criminal Code

Introduction

The Police Offences Act 1935 (Tas) overlaps some offences contained in the Criminal Code Act 1924 (Tas) (the Criminal Code) such as assault and damaging property. Whether an alleged offender is to be charged under one rather than the other will depend upon the discretion of the prosecuting authorities and normally relates to the seriousness of the offence about which the complaint is made.

All charges brought under the Police Offences Act are summary in nature. That means that the charge is heard by a magistrate, rather than a judge, and the complaint must be filed within six months of the date of the commission of the offence (Justices Act 1959 (Tas), s26). There is no such limit on charges brought under the Criminal Code.

Assault

It is an offence to unlawfully assault another person. Assault can also be a crime contrary to the Criminal Code or the Police Offences Act (s35). An assault is the intentional application of force to another person without their consent, or the threat to apply such force. Under the Criminal Code an ‘aggravated’ assault upon a pregnant woman (s184A, Criminal Code), is much more serious. An ‘aggravated’ assault is one of particular force or violence.

The Police Offences Act provides for a separate penalty for assault ‘with indecent intent’ of a child  under 17 years (s35(3)). Indecent assault under the Criminal Code and the POA means a common assault in circumstances of indecency. However if no indecent intent is found, the charge can be amended to one of common assault.

Offences Against Property

Trespass

This covers unlawful entry onto land. It often also covers situations where a person refuses to leave land, e.g. during political protests or industrial activity.

Trespass is the entry without lawful excuse upon any land without the consent of the owner or occupier or the person in charge of it (s14B, POA). An owner or occupier of land or their agent can require the name and address of a suspected trespasser. It is an offence to refuse to provide it, even though the person charged is later acquitted of trespass. A police officer may arrest without warrant a person who appears to be a trespasser. Before doing so, the police officer must give the trespasser an opportunity to leave.

Damage to Property

It is an offence in an urban area to deface or damage walls etc (s15(1)(b)), and it is also an offence to destroy or injure any property (s37). Note that the Police Offences Act is not the only statute prohibiting behaviour of this sort. Equivalent charges can be laid under the Criminal Code.

To be convicted the defendant must perform an act which has ‘no lawful justification’ and the act must be ‘wilful’, that is, the person must consciously perform an act and, in doing so, must appreciate that the damage was likely to result yet persist in not caring whether the damage occurred or not.

The damage must be actual rather than hypothetical. Thus it has been held to be no offence for a few people to play soccer on a paddock used for grazing. But slight damage, however temporary, will result in a conviction, for example, a small dent in the fabric of a policeman's cap. The injury must be something which reduces the value of an object or requires something to be done by the owner to return it to its former state.

Unlawful Use of Property

It is an offence to take or to use the property of another, whether it is an animal, boat, vehicle such as a bicycle or wheel barrel, or a motor vehicle, without the authority of the owner or someone else lawfully in charge, or without lawful excuse. In the case of motor vehicle stealing (s37B), which is the most common charge of this sort, the person lawfully in charge of the motor vehicle must also have the authority to give that consent. For example, a person who has borrowed a car will be lawfully in charge of the motor vehicle, but may not have the authority to give consent.

It is not necessary to prove an intention on the part of the defendant permanently to deprive the owner of their property. The Police Offences Act is concerned only with the unauthorised use of the car. However it is necessary for the prosecution to prove that the use was dishonest in character.

Motor vehicle stealing is a serious offence and carries penalties of a fine up to 50 penalty units and up to 3 years in prison. Also the defendant may be disqualified from holding or obtaining a driver's licence and may be liable to make good loss or damage sustained by the owner.

Possession of Stolen Property

It is an offence to be found in possession of property reasonably supposed to have been stolen or unlawfully obtained (s39). This is a complex provision and to be convicted the defendant must be ‘found’ to be ‘in possession’ of property which is ‘reasonably supposed’ to be stolen or unlawfully obtained and without being able to account for it to the court. Hearings of such charges are often characterised by lengthy legal argument covering the above points and a person so charged should seek competent legal advice.

The essence of the charge is that the police must make out a case and then the defendant must prove their innocence on the balance of probabilities. There is also a charge of receiving stolen property contrary to the Criminal Code.

Offences Against Public Authority

It is an offence to assault, resist or wilfully obstruct police officers when acting ‘in the execution of their duties’, and similarly with public officers and persons lawfully making arrests (s34B, POA). In practice, charges generally relate to police officers. Before a charge can be made out it is essential to prove the police officer was acting in the execution of their duty and not exceeding that duty.

Obstruction of police is any act which makes it more difficult for the police to carry out their duty. This would generally be physical acts but it might include words e.g. urging a person in custody in a police car to get out. The obstruction must be intentional; an accidental or inadvertent act is not enough.

To resist arrest is to act so as to avoid being taken into custody. In order for the charge to be made out there must be some attempt by the police to effect a lawful arrest.

Offences in Public Places

There are numerous provisions in the Police Offences Act 1935 (Tas) which regulate behaviour in public. Such matters almost always relate to conduct in public places or, sometimes, to behaviour visible from public places (provided that there is actually someone in the public place at the time to witness it).

The concept of the ‘public place’ is very wide and includes parks, wharves and jetties, passenger vessels and taxis, churches, theatres and meeting halls, markets and auctions, licensed premises, sports grounds and race-courses, police stations and courts, public toilets, schools, banks and shops.

This list is not exhaustive. Public streets are ‘public places’. That definition includes much more than is popularly considered to be a street, and includes car parks, petrol station forecourts and the like. In short, a public place can be considered to be any place to which the public has access, whether or not the place is otherwise private property.

Loitering

Loitering may be an offence even though the person accused is doing absolutely nothing, except loitering. However the circumstances of where the person is loitering and who the person is can lead to a suspicion which then may be prosecuted as an offence. A person must be a ‘suspected person or reputed thief’, which means their history of convictions can be produced in court to help the police to prove the case against them. The person’s ‘known character’ is a factor in persuading the court that they intended to commit a crime (s7, POA).

A person found loitering, and in possession of any housebreaking implements or any other implements in their possession ‘with intent to commit a crime’ can be convicted and jailed. It is not necessary for the police to prove any particular act demonstrating that intent, nor is it necessary to specify what particular crime the suspect intended to commit.

It is an offence under the Police Offences Act to loiter near a school or in a number of specified places where children are present such as a public toilet, a playground, a games arcade or swimming pool (s7A, POA). The Act states that a person who has been guilty of a sexual offence must not, without reasonable excuse, loiter near children. The penalty is up to 50 penalty units or up to 2 years in jail.

All of these procedures are contrary to the customary approach of the criminal law that neither an accused person's previous offences nor their character can be used by the prosecution to prove an offence except in very strictly defined circumstances. Similarly, in general it is for the prosecutor to prove all parts of a charge beyond reasonable doubt and an accused does not have to prove their innocence.

Drunkenness

The Police Offences Act contains offences of drunkenness, that is, being discovered in a public place intoxicated and 'behaving in a manner likely to cause injury to himself, herself or another person, or damage to any property; or incapable of protecting himself or herself from physical harm' (s4A). There are also offences of drunkenness when in charge of a vehicle, or in possession of a dangerous weapon’ (s4). 

In prosecuting those charges it is usual for a police officer to give evidence of the smell of the person's breath, and their appearance and demeanour from which the police officer formed the opinion that the defendant was drunk.

Public Annoyances/Public peace

Persons affected by alcohol will also often find themselves facing charges of causing public annoyance. (s13, POA). The most common of these are ‘committing a nuisance’ and ‘disturbing the peace’. A ‘nuisance’ is just what the word suggests: something which is annoying, obnoxious or unpleasant, such as urinating in the street. There is almost no limit to the range of annoyances which can amount to a nuisance. The nuisance must be a public nuisance, that is, it must occur in a public place and affect members of the public.

‘Disturbing the public peace’ is to engage in conduct which is likely to result in a ‘breach of the peace’. Usually, this means fighting in a public place. Disturbing the peace does not relate to rowdy behaviour, nor does ‘peace’ mean ‘peace and quiet’. The ‘public peace’ is the traditional right of citizens, guaranteed by the Crown, to go about their business without fear of violence.

Public annoyances include among others ‘offensive behaviour’, ‘throwing fireworks’ and ‘recklessly throwing a missile to the danger or damage of another person’. ‘Missiles’ usually turn out to be rocks or beer cans. ‘Recklessly’ means throwing an object with an intention to hit a person or property, or realising that it was likely that a person or property would be endangered or hit, and not caring whether or not this happens.

Indecent Language

This charge (s12, POA) is less common than it used to be, principally because a significant number of complaints are being dismissed by magistrates as community attitudes to what is ‘indecent’ change. The Full Court of the South Australian Supreme Court has held that the measure of what is indecent is not the standards of judges or magistrates, but rather that of average citizens of average age and outlook. For this reason the police may lay other charges of either ‘swearing’ or using ‘improper language to a police officer’, depending on the circumstances.

Begging and Other Street Offences

It is an offence to beg in a public place or to induce or solicit alms (s8, POA). This carries a penalty of up to 5 penalty units or imprisonment up to 6 months. Begging is not the same as busking. However where a busker is asked by the occupier of a house or premises to stop performing in the vicinity, it is an offence to continue to sing or play (s16).

It is an offence for a common prostitute in a public place to solicit, importune or accost any person for immoral purposes (s8). It is also an offence to keep a disorderly house which ‘harbours prostitutes’ (s9) and for a man to live off the earnings of prostitutes (s8). But prostitution per se is not an offence, which is why so many sex workers advertise through the newspaper advertising pages, as this is not in a public place, or a ‘disorderly house’.

It is an offence to drink in a public street or public place (including being inside a car) (s25) or have an opened container of liquor without reasonable excuse (the proof lying with the person) where this is proscribed by regulations. It is not an offence where the person is within 50 metres of a public house and using furniture or other facilities lawfully provided by the pub. Nor is it an offence where a permit has been issued under the Liquor Licensing Act 1990 (Tas).

Computer Crime

Computer-related fraud is an offence (s43A, POA), as is damaging computer data (s43B) and computer hacking (s43C). The penalty is up to 20 penalty units and up to 2 years in jail. If the computer fraud or hacking emanated from outside Tasmania but there is a substantial link with Tasmania, the Police Offences Act can still apply as if the offence had taken place entirely within Tasmania.

Penalty Units

A penalty unit is a fixed amount of money. Penalty units are used to decide the amount of a fine. The current penalty unit in Tasmania is $157. This means that if you are fined 2 penalty units, your fine will be $314. All fines are a multiple of a penalty unit. Failure to pay a fine attracts the attention of the Monetary Penalties Enforcement Service. Failure to organise payment instalments with them, or failure to pay results in more costs. Enforcement orders cost an extra $78.50, and sanctions to ensure payment also carry charges.

Drug Offences

The law about drugs in Australia is found entirely in Acts of Parliament. In Tasmania the situation is governed by the Customs Act 1901 (Cth), by the Poisons Act 1971 and the Misuse of Drugs Act 2001. The Narcotic Drugs Act 1967 (Cth) and the Psychotropic Substances Act 1976 (Cth) apply certain international conventions to Australia, but do not affect most cases before the courts.

Tasmanian Law: Poisons Act 1971 and Misuse of Drugs Act 2001

Overview

The Tasmanian Poisons Act 1971 and the Misuse of Drugs Act 2001 deal comprehensively with provisions relating to the regulation, control, and prohibition of the importation, making, refining, preparation, sale, supply, use, possession, and prescription of certain substances and plants, which for ease of reference are referred to below sometimes simply as ‘illicit drugs’.

The Acts draw a distinction between a number of categories of drugs in relation to which criminal liability may be attached, including, for example, ‘narcotic substances’, ‘prohibited substances’, ‘prohibited plants’, and so on. Clearly heroin, morphine and so on are ‘narcotic substances’. They are also ‘prohibited substances’. ‘Prohibited plants’ include for example opium, coca leaves and Indian hemp. Sometimes the definitions include the same substance, and a person charged in relation to an illegal substance or illicit drug, will need to consult the Acts or the regulations made under the Acts.

Cannabis Offences

It is an offence to possess cannabis, to smoke it, to supply it to others, or to possess pipes or other items for use in connection with the preparation or smoking of cannabis, or for the supply or preparation of the drug. The Act does not have different penalties for individual drugs. In each case, a penalty is provided for particular acts related to a specific category as defined in the Misuse of Drugs Act. In general, minor offences in relation to cannabis would be treated much more leniently than say heroin.

There are also a number of property-related offences involving cannabis and other drugs. Under the Poisons Act (s83B), if a person owns or occupies premises, it is an offence to be used for or in connection with the unlawful growing, manufacture, preparation, sale, distribution, trafficking, use, or administration of a raw narcotic, narcotic substance, prohibited plant, or prohibited substance. It is an offence simply to possess a pipe for smoking cannabis, and other implements and devices used in connection with prohibited substances, including devices for its preparation.

Possession

Possession in the Tasmanian legislation does not just mean that it is on the person. The definition of possession in the Misuse of Drugs Act 2001 (Tas) (s3(3)) includes, but is not limited to where the controlled substance is:

‘on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance’.

This means that at trial, the defence must prove that they had no knowledge of the substance. The prosecution is not required to establish knowledge. This reverses the onus of proof. It is usual for the prosecution to establish the guilt of the defendant, not for the defendant to establish their innocence. It is now up to the defendant to prove lack of knowledge.

A place can include a car, a locker or anything used by the defendant. ‘Occupied by the person’ is not defined. It has been considered in the Supreme Court decision of Allison v Lowe, (1988) Tas R it appears that the question is one of fact and degree, as to whether, on the evidence, the accused can fairly be said to be the occupier of a place. An occupier can include husband and wife, a guest, even a squatter’s occupation may suffice. It is not necessary that the occupation is permanent.

Sale, Supply and Trafficking

The most serious offences in the Misuse of Drugs Act relate to manufacturing, cultivating, selling, and trafficking and supplying controlled substances, including ‘precursors’. Precursors are substances known to be used in the manufacture of illicit drugs; their possession and manufacture is itself a crime. These offences are indictable offences tried before a judge and jury in the Supreme Court. A person convicted is guilty of a crime and liable to punishment of a term of imprisonment for up to 21 years and/or fined. The Misuse of Drugs Act also contains so called minor offences (triable summarily in the Magistrates Court) for the manufacture and possession of controlled substances and controlled plants, and the cultivation of controlled plants, which have maximum penalties of 50 penalty units and or imprisonment for up to two years. These penalties apply where the amount in question is less than the ‘trafficable quantity’. The differing amounts for various drugs and prohibited plants trafficable quantity are contained in Part 2 and Part 3 of Schedule 1 of the Misuse of Drugs Act.

The definitions of ‘sell’ and ‘supply’ are extremely wide. ‘Sell’ includes offering or exposing for sale; keeping or having in possession for sale; barter or exchange; delivering or agreeing to sell; sending, forwarding, delivering or receiving for sale; and authorising, directing, causing, permitting, or suffering any of those acts or things to be done. ‘Supply’ includes offering or agreeing to supply a substance, administering it by any means.

A person found in possession of an illicit drug who states that they intended to supply or sell the drug the following day, could be charged even though at the time they still retained possession.
Of extreme significance in relation to these offences are deeming provisions in relation to the possession of controlled substances, plants and precursors. For example, in relation to the cultivation of a prohibited plant, the Misuse of Drugs Act, section 7 provides as follows: ‘If it is proved in proceedings for an offence under (this section) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of evidence to the contrary, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence’.

Similar sections are contained in relation to manufacturing of controlled substances. That is, if you have in your possession an amount greater than the trafficable quantity, you have the burden of proof in establishing that you did not possess the drugs for the purpose of sale, that is trafficking.

Prescribed quantities in the Schedules include:

  • Amphetamine: 25g
  • Cocaine: 25g
  • Poppy plant material: 100g/500 plants
  • Heroin: 25g/20 packages
  • Cannabis: 1kg/20plants/20 packages
  • Cannabis Resin/oil: 25g

Thus if a person has, for example, 0.4 grams of heroin in their possession they cannot be subject to the heavy penalties provided by section 12 without some evidence additional to possession alone pointing to the offence. If they have 26g, they may be deemed to be guilty of sale, supply or trafficking, if they fail to satisfy a jury that they had the heroin for some other purpose (normally for their own use).

It does not seem true however, to say that this section reverses the onus of proof as does section 3(3). At the end of the day, the jury must still be satisfied beyond reasonable doubt that a crime has been committed. Section 3(3) applies to summary offences punishable by a magistrate in the Court of Petty Sessions only. However, it is difficult to see how an accused could raise a reasonable doubt as to whether they are guilty of selling, for example, without giving evidence. This is contrary to the usual rule in criminal trials, which is that a person is not required to prove their innocence.

The definition of sale and supply under the Act is perhaps broad enough to catch even those who ‘offer to supply an illicit drug’ when in fact they have nothing at all to supply. The mere offer may be enough to make that person liable to the same penalties as a supplier.

'Traffic’ is defined in section 3 of the Misuse of Drugs Act. It includes to sell the substance; to prepare the substance for supply with the intention of selling it or the belief that another person intends to sell it; and to transport the substance with the intention to sell it; to guard or conceal the substance; and to possess the substance with the intention of selling it. It is the playing of any part in the distribution from manufacturer to the ultimate consumer.

Other Drug Offences

Section 169 of the Criminal Code provides that: ‘any person who administers any stupefying or overpowering drug or thing to any person, with intent thereby to facilitate the commission of an offence, or to facilitate the flight of an offender after the commission or attempted commission of an offence, is guilty of a crime. Charge: Administering a drug with intent to facilitate the commission of an offence (or the flight of an offender).

Penalties under the Misuse of Drugs Act

Set out below is a list of offences. It does not include those related to particular classes of persons, for example, medical practitioners and chemists. The penalties are maximums. The courts have wide discretion with penalties. Other sentencing options are open, for example, suspended sentence, community service orders, etc.

  • s6: Manufacture of narcotic substances (for the purpose of trafficking) up to 21 years jail
  • s21: Manufacture of narcotic substances (less than trafficable quantity) fine up to 50 penalty units, up to 2 years jail or both.
  • s7: Cultivating a controlled plant for sale up to 21 years jail
  • s22: Cultivating a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s12: Trafficking in a controlled substance up to 21 years jail
  • s23: Possessing utensils etc for administering a controlled drug fine up to 50 penalty units
  • s24: Possessing, using or administering a controlled drug fine up to 50 penalty units, up to 2 years jail or both.
  • s25: Possessing or using a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s26: Selling or supplying a controlled drug fine up to 100 penalty units, up to 4 years jail or both.
  • s27: Selling or supplying a controlled plant fine up to 50 penalty units, up to 2 years jail or both.
  • s28: Forging, uttering prescriptions etc. fine up to 50 penalty units, up to 2 years jail or both.
  • s31: Failure to provide information (including from whom prohibited substance was bought) fine up to 100 penalty units

In addition to the above, the courts have wide powers to impose further penalties by way of forfeiture pursuant to the Crime (Confiscation of Profits) Act 1993 (Tas). This includes anything whatsoever used in the commission of the offences and orders for payment of monies equal to the proceeds derived from the commission of the offence or any other offence of a similar kind which the court takes into account in imposing penalty. This power applies to numerous offences.

Additionally, the Misuse of Drugs Act contains specific provisions in relation to property derived or received from major offences. It is an offence to conceal, transfer, convert or remove the property derived from an offence if its purpose is to conceal the commission of an offence under the Act (s16). It is also an offence to receive property, knowing it to be directly derived from a drug offence (s17). The court can impose penalties of up to 21 years in jail. The court also has the power to order the forfeiture of property used in the commission of any offence under the Act, including summary offences. Needless to say drugs seized by police during searches are also forfeited and disposed of.

The power of forfeiture applies even if the owner of the article is unaware of any offence having been committed in or with it (Forbes v Traders Finance Corporation (1971) 126 CLR 429). Provision is made for rights of appeal by any person having an interest in an article the subject of forfeiture.

Sentencing Drug Offenders

The maximum penalties for offences are set out above. Aspects which may be considered, when sentencing include:

  • the nature of the drug (including type and quantity);
  • qualities of the offender (including degree of addiction, motive, prior record of drug offences and age);
  • the facts of the offence (including the degree, level and character of involvement);
  • the influence of the legislative context (including the category of offence, and levels of maximum penalties);
  • the community impact of the offence (including any moral responsibilities of the offender, deterrence and the magnitude of social harm).

Matters concerning possession and personal use of small quantities of cannabis are dealt with in the Magistrates Court. The penalty is almost always a fine and an order to pay costs, sometimes together with an adjournment with conditions. Quite often an adjournment with conditions alone is ordered.

Probation for addicts on the basis that they seek treatment presents some difficulties in areas where the facilities for treatment are limited.

The various factors involved in sentencing are numerous and vary with the changing attitudes of the time. To make comparisons is exceedingly difficult. The more addictive and socially damaging the drug concerned is considered to be, the more likely is it to be reflected in the severity of punishment and to engage in commercial activity will often mean a jail sentence.

Commonwealth Law: importing and exporting

Offences

Until recently, federal drug offences were contained in the Customs Act 1901 (Cth) as drug offences were mainly concerned with the export and import of drugs. The Customs Act is still relevant, as the Act sets out many search and detention powers. With the passage of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) (SDOA) the law concerning federal drug offences was transferred to the Criminal Code Act 1995 (Cth)  Chapter 9, Part 9.1. The amendments of the SDOA have brought Australian law into line with our international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

This chapter was written with reference to the Fitzroy Law Handbook Online.

Presumptions

Where a Commonwealth law requires the import or export to be authorised but it isn't, the person is taken to have imported or exported the substance with the intention of using some or all of the substance to manufacture a controlled drug and a belief that another intended to manufacture a controlled drug. These presumptions do not apply if the person proves on the balance of probabilities that he or she did not have that intention or belief.

To establish a precursor importation offence, the accused must have intended to use the precursor to manufacture a controlled drug and/or believed that another person intended to use the precursor to manufacture a controlled drug.

Offences

Federal drug offences include:

The new offences fall into two categories. The first category relates to the import and export of border controlled drugs and precursors (chemicals used to manufacture drugs) and is dealt with in Division 307 of the Criminal Code. The second category relates to domestic activity involving controlled drugs and precursors, such as trafficking and manufacture. These are dealt with in Division 308 of the Criminal Code. The offences in each category are tiered, based on the quantity of serious drug involved, with greater penalties being available where a ‘marketable’ or ‘commercial’ quantity is involved.

Attempting to commit any of these crimes, aiding and abetting in their commission, and conspiring to commit a crime are all offences in themselves (s11). Conviction for any of these can result in imprisonment or heavy fines.

Import-Export of Border Controlled Drugs

Division 307 of the Criminal Code provides for offences relating to the import and export of ‘border controlled drugs’. Section 300.2 defines ‘import’ to include ‘bring into Australia.’ Import into Australia occurs when the goods are landed or brought within the limits of a port with the intention of landing them. Goods are not imported simply by bringing them within the three-mile limit of Australian territorial waters.

Section 314.4 lists border controlled drugs and plants and sets out ‘marketable’ and ‘commercial’ quantities relevant to the various offences. The following table lists common border controlled drugs and sets out quantities.

Sections 307.1 to 307.4 of the Criminal Code relate to importing and exporting border controlled drugs and plants. The applicable penalty where a commercial quantity is involved is imprisonment for life or 7,500 penalty units or both. Where a marketable quantity is involved the applicable penalty is 25 years imprisonment or 5,000 penalty units, or both. There is a new tier of offence applying to any quantity with a penalty of 10 years or 2,000 penalty units, or both, provided there is a commercial purpose. In addition, there is an offence that applies to any amount with a penalty of two years or 400 penalty units, or both.

Import-Export of Border Controlled Precursors

Precursors are the ingredients for making illegal drugs, such as pseudo-ephedrine and ephedrime. Division 307 of the Criminal Code introduces new offences for the importation or exportation of border controlled precursors with the intention of manufacturing a controlled drug. Section 314.6 lists border controlled precursors and sets out quantities relevant to the various offences. Fourteen precursor chemicals are currently listed, with further additions likely.

The applicable penalty where a commercial quantity is involved is 25 years imprisonment or 5,000 penalty units, or both. Where a marketable quantity is involved the applicable penalty is 15 years or 3,000 penalty units, or both. There is a further offence where any quantity is involved and this carries a penalty of seven years or 1,400 penalty units, or both. The quantities for a commercial and a marketable quantity have been based on the amount of precursor necessary to manufacture the corresponding amount of border controlled drug.

A person commits an offence where the person imports or exports a border controlled precursor and either or both of the following apply:

  • the person intends to use any of the substance to manufacture a controlled drug; or
  • the person believes that another person intends to use any of the substance to manufacture a controlled drug.

Trafficking controlled drugs (Division 302)

Under the Criminal Code, a person traffics in a substance if:

  • the person sells the substance; or
  • the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
  • the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
  • the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
  • the person possesses the substance with the intention of selling any of it.

You can traffic in traffickable, marketable and commercial quantities. But traffickable quantities begin at 2.0 grams.

Cultivation of controlled plants

Cultivation of controlled plants requires a person to:

  • plant a seed, seedling or cutting;
  • transplant a plant;
  • nurture, tend or grow a plant;
  • guard or conceal a plant (including against interference or discovery by humans or natural predators);
  • harvest a plant, pick any part of a plant or separate any resin or other substance from a plant.

Cannabis is the only controlled plant under the Criminal Code. A traffickable quantity begins at 10 plants or 250 grams. The Act makes a distinction between cultivation of commercial, marketable and traffickable quantities.

Drug offences involving or harming children

There are offences in the Criminal Code directed at adults who involve children under 18 years of age in the drug trade. As well as a range of domestic offences, these include offences relating to procuring a child to pre-traffic in precursors, or import controlled drugs or border controlled precursors. Pre-trafficking includes selling the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug (s306.1).

Possession in Commonwealth Law

To establish possession of a thing, it must be stablished that a person:

  • received or obtained possession of the thing; or
  • had control over the disposition of the thing (whether or not the thing is in the custody of the person); or
  • had joint possession of the thing.

It is a possible defence to possession to establish mistake of fact. This would have been the defence in the second Bridget Jones’ Diary movie where Bridget was unaware that the snake object in her luggage actually contained heroin.

There are four possession offences under the Criminal Code:

  • Possessing controlled drugs (s308.1)
  • Possessing controlled precursors (s308.2)
  • Possessing plant material, equipment or instructions for commercial cultivation of controlled plants (s308.3)
  • Possessing substance, equipment or instructions for commercial manufacture of controlled drugs (s308.4)

Possession of controlled drugs and precursors carry a penalty of up to 2 years imprisonment and/or 400 penalty units. However, possessing equipment or instructions for commercial cultivation or manufacture carries penalties of up to 7 years imprisonment and/or 1,400 penalty units.

Quantities

Prosecution: combining drugs or precursors

The Criminal Code Act 1995 (Cth) enables charges to be brought on the basis of combined quantities of drugs or combined amounts of precursors in certain situations under Division 311, Section 311.1. So, separate trafficking (selling) transactions on the same occasion may be charged together. Quantities of drugs imported or trafficked or quantities of precursors that are pre-trafficked, on different occasions, can be charged together where it can be shown that the person is carrying on a business. Quantities of drugs or quantities of precursors can also be charged together when there are frequent offences involving smaller quantities.

Provisions in the Criminal Code contain restrictions as to what may be combined in a charge. Selling (i.e. trafficking) smaller parcels of drugs requires each transaction to be within seven days of another, and where several importations are involved they must be within 30 days of each other. The prosecution is required to make clear that it intends to rely on these provisions and a description of the conduct alleged must be set out in the charge or provided to the accused within a reasonable time before the proceedings.

There are also provisions for combining different types of drugs. For example, an accused who sells half a commercial quantity of heroin and half a commercial quantity of cocaine can be prosecuted for trafficking a commercial quantity of controlled drugs.

Traffickable, Marketable and Commercial Quantities

Traffickable quantities are the smallest quantities, and carry the least penalty. These are small amounts of a drug, such as might be sold in one transaction. Marketable quantities are middling quantities, indicative of a person in possession being a middle man but not necessarily a manufacturer. Commercial quantities are manufacturing quantities, such as might be seized in a lab. It is also possible for a person to be carrying this amount on them in an import/export situation. This would not indicate manufacture, but the penalty for carrying such large quantities is much harsher.

The Criminal Code contains a table of the various border controlled drugs, noting their traffickable, marketable, and commercial quantities. There are also tables of border controlled plants and border controlled precursors.

There are three other tables of controlled drugs, controlled plants and the third of controlled precursors.

For example, methamphetamine is a traffickable quantity at 2.0 grams as both a controlled and border controlled drug. It is a marketable quantity up to and including 250.0 grams, and it is a commercial quantity up to, including and over .75 kilos, or 750 grams.

Defences for importing and exporting in Commonwealth law

A person is not criminally responsible for a Part 9.1 offence if, at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a state or territory, and had the conduct been so justified or excused the conduct would not have constituted the offence. These defences are in addition to the general defences available under the Criminal Code Act 1995 (Cth)  such as involuntary intoxication, age of the offender, or mistake of fact.

Lack of commercial intention defence

Under the new provisions, the marketable quantity and the new tier offences are subject to a defence of ‘lack of commercial intention’. This requires the accused to prove on the balance of probabilities that he or she neither intended to sell any of the drugs, nor believed that another person intended to sell any of the drugs. However, where this defence is raised, and accepted by a jury, Division 307 of the Criminal Code makes provision for an alternative verdict and the accused may be convicted of an offence with a two year penalty or 400 penalty units, or both.

Sections 307.5 to 307.10 provide for offences relating to the possession of border controlled drugs that have been unlawfully imported or are reasonably suspected of having been unlawfully imported.

These offences carry a defence of lack of commercial intention. The defence has two limbs. First, even if the accused intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the drug so manufactured and did not believe that another person intended to sell any of it. Secondly, even if the accused believes that another person intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the precursor to that person.

If the accused follows the lack of commercial intention defence, they may still be liable to be convicted of an offence of possessing a precursor with an intention to manufacture a controlled drug, which carries a penalty of imprisonment for two years or 400 penalty units, or both.

Search, Seizure and Detention under the Customs Act 1901 (Cth)

The Customs Act 1901 (Cth) contains specific powers for the detention and search of people reasonably suspected of unlawfully carrying any prohibited goods or internally concealing a suspicious substance.

Frisk search

Sections 219L219M219N, and 219P of the Customs Act are the frisk search provisions.

To search a person, there must be ‘suspicion on reasonable grounds’. Reasonable suspicion can be aroused by:

  • a person's travel itinerary;
  • declarations made by the person under Commonwealth law;
  • documents in the person's possession;
  • unusual behaviour of the person;
  • and the content or appearance of the person's baggage.

Section 4 of the Customs Act defines a frisk search as a rapid and methodical running of hands over the person's outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person.

The search must be carried out by a Customs Officer who is of the same sex as the detainee (s219M(1)(b)). You can not refuse to submit to a frisk search or refuse to produce an item requested after a frisk search. Refusal results in the person being liable to an external search (s219P).

External search

Sections 219Q and 219R are the provisions concerning external search. The definition of an external search is: a search of the body of, and anything worn by, a person in order to determine whether the person is carrying any prohibited goods and to recover any such goods. It does not include an internal examination of the person's body (s4(1)).

An external search can be carried out where a detention officer or police officer suspects on reasonable grounds that a person detained under frisk search provisions (s219Q) is unlawfully carrying prohibited goods on their body (s219R(1)(b)). The external search must be carried out as soon as practicable. if the person is not in need of protection and the person consents (s219R(1)(c)). Otherwise, the detention officer or police officer must apply to an authorised officer, or a Justice to carry out an external search of the detainee (s219R(1)(d)).

The external search must be carried out by a police or Customs officer of the same sex as the detainee (s219R(10) & (11)).

Internal search

Sections 219S to 219Z contain the internal search provisions of the Customs Act.

A detention officer or police officer who suspects on reasonable grounds that a person is internally concealing a suspicious substance may detain the person for the purpose of making an application for detention of the person (s219S).

An application for a detention order must be to a Federal Court or Supreme Court Judge if the person is in need of protection. In other cases, the application may be made to these Judges or to a Magistrate (s219T). An order for detention is made for an initial period of up to 48 hours and can be extended by the Judge or Magistrate for a further period of 48 hours. If an order for detention is not made or extended, the person must be released immediately (s219T & V). If the person consents to an internal search, the search must be carried out as soon as practicable.

If the person, or the person appointed to represent their interests, refuses to undergo an internal search, an application must be made to a Federal or Supreme Court Judge for an order for an internal search. A Judge must not make an order for an internal search unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance (s219V(9)).

An internal search must be carried out by a medical practitioner, in a place suitably equipped (s219Z). The medical practitioner must not use any procedure involving surgical incision unless they consider it necessary because the detainee's life is at risk (s219ZF), such as where a person has swallowed packets of drugs and those packets might rupture, and cause serious harm to the person.

A person detained for an internal search must be allowed to consult a lawyer (s219W). Frisk and external searches do not have a similar provision.

Sexual Offences

Sexual Offences are mainly dealt with in the Criminal Code Act 1924 (the Criminal Code).

Offences

Sexual Offences are mainly dealt with in the Criminal Code Act 1924 (Tas) (the Criminal Code).

Rape

‘Rape is committed where any person has sexual intercourse with another person without that person's consent’ (s185, Criminal Code). 'Sexual intercourse' is defined as the penetration to the least degree of the vagina, anus or mouth of a person by the penis of another person, and includes the continuation of sexual intercourse after such penetration.

'Consent’ is a consent freely given by a rational and sober person. A consent is not freely given where it is obtained by force, fraud or threats of any kind or where it is obtained by reason of a person being overborne by the nature or position of another person. Nor is it a valid consent if a person is so affected by liquor or drugs, as to be incapable of forming a rational opinion about the matter to which they consent. A very young child is not capable of giving a valid consent if the sexual nature of the act is not appreciated by the child. Where a victim suffers grievous bodily harm in connection with an alleged sexual offence, the grievous bodily harm is prima facie evidence of the lack of consent.

To establish rape, the Crown must prove an intentional act of sexual intercourse, and absence of consent. If there is some evidence that the accused person may have believed the victim was consenting, the Crown must also prove that the accused person did not honestly and reasonably believe the victim was consenting.

The maximum penalty for rape, and all crimes in the Criminal Code other than murder and treason, is 21 years imprisonment (s389), but in practice sentences for rape range from 18 months to 8 years.

Rape in Marriage

The fact that an accused person is married to the complainant is not a bar to a conviction for rape. 

Unnatural Sexual Intercourse

Sexual intercourse with an animal is a crime and is called unnatural sexual intercourse. Male homosexuality is no longer a crime in Tasmania nor is anal intercourse. Lesbianism was probably never a crime in Tasmania.

Sexual Intercourse with a Young Person

It is a crime to have sexual intercourse with a young person under the age of 17 years (s124). Consent of the young person is only a defence in two situations. First, where the young person is 15 years of age or older and the accused person is not more than 5 years older. Secondly, where the young person is 12 years of age or older and the accused person is not more than 3 years older than the young person. It follows that the consent of a child under 12 years of age is never a defence. Consent is not a defence to anal intercourse with an underage person. Mistake as to age is a defence if the accused person believed on reasonable grounds that the young person was of, or above, the age of 17 years. It is a crime to have sexual intercourse with a person under 17 years of age on more than three occasions. The crime is called maintaining a sexual relationship with a young person.

Marriage is a defence to this particular charge, as is a reasonable belief that the person was over 17.
The consent of the Director of Public Prosecutions is required to bring a prosecution (Section 125A).

Indecent Assault

Any person who unlawfully and indecently assaults another person is guilty of indecent assault (s127). To establish this crime, the Crown must prove an assault which is indecent or committed in circumstances of indecency, and absence of consent unless the victim is under 17 years of age. If the victim is a young person under the age of 17 years, consent is only a defence if it would have been a defence if the crime charged was sexual intercourse with a young person. An honest and reasonable mistake as to consent is a defence, as is an honest and reasonable belief that the person allegedly assaulted was of, or above, the age of 17 years.

Aggravated Sexual Assault

Aggravated sexual assault is committed where any person using a part of the body other than the penis, or an inanimate object, penetrates the vagina or anus of another person without that person's consent (s127A).

Stalking

Section 192 created the crime of stalking which is committed when a person, with the intention of causing physical or mental harm or apprehension or fear, follows a person or loiters outside a person’s house or interferes with a person’s property or keeps a person under surveillance or gives offensive material to a person or acts in any other way which could reasonably be expected to cause the other person apprehension or fear.

If apprehension or fear is caused to the person stalked, the stalker is deemed to have the requisite intent if the stalker’s conduct is likely to cause apprehension or fear of physical or mental harm. However, police officers are exempt if they stalk in the course of their duties.

Other Sexual Offences

The sexual offences described above are by no means an exhaustive list of sexual offences. The Criminal Code also contains the crimes of unlawful sexual intercourse with person with mental impairment (s126), crimes of procuration (ss125C125D129), and incest (s135). The Police Offences Act 1935 (Tas) contains offences of assault with indecent intent, indecent exposure, offensive or indecent behaviour, soliciting. It is no longer an offence for a male person to be in a public place dressed in female apparel at night.

Investigation and Court Procedures

Protection for the Victim

The victim will be referred to as a complainant right up until the conviction of the accused. For the accused to be convicted, the complainant will usually have first given evidence in a committal proceeding before a magistrate and then in a trial before a jury of 12 people. The complainant will probably have been cross-examined extensively, and with some pressure by defence lawyers about the intricate and very personal details of the offence and the person’s credibility. A successful prosecution depends to a great extent on strong evidence from the complainant. This whole process can be extremely upsetting.

The Evidence (Children and Special Witnesses) Act 2001 (Tas) provides the legislative means for support for children and special witnesses when giving evidence. To qualify as a special witness, a person must satisfy requirements set out under the Act. These include intellectual, mental or physical disability, an inability to give evidence in the ordinary manner, or some other vulnerability, such as relationship to any party to the proceeding that is likely to cause emotional trauma, intimidation or distress so as to prevent giving evidence satisfactorily (s8). Some of the means of support are:

  • Audio visual linking for giving testimony rather than having to be present in court
  • A support person near to the child or special witness
  • Exclusion of persons from the courtroom, specified in a court order

Access the hearings for sexual offence charges

Committal proceedings will be dealt with by the court in the absence of members of the public. But in Tasmania, at the trial stage, the judge has no power to close the court.

Proof of Physical Injury

If a person submits to sexual intercourse as a result of threats or terror, they are not consenting. Where sexual intercourse has occurred and the complainant's will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the complainant. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.

It is still the law that the lack of physical injury to a complainant may be very relevant to the defence in some circumstances, and may be the subject of substantial comment by defence lawyers when addressing the jury. The Crown in rape trials still places great weight on the existence of injuries to a complainant, and the defence is likely to submit that lack of injury is very significant.

Proof of grievous bodily harm to the complainant as a result of an alleged sexual offence is ‘prima facie’ evidence of absence of consent. This means that it will not now be necessary, where a complainant suffers grievous bodily harm, to show as a separate matter that there was no consent to the alleged offence.

Change in Place of Trial

Section 307A, Criminal Code enables a complainant to request a change in venue of a trial, and provides for compensation to be paid to an accused if additional costs are incurred by reason of that change.

Late Complaint

It used to be the case, prior to a 1987 amendment, that defence lawyers in a rape trial emphasised the absence of complaint or late complaint. The rationale was that if a person had been raped, then they would complain to someone at the first available opportunity. If there was no complaint, it was open to the defence to cross-examine a complainant with some force and to cast doubt upon their story.
It is still possible to cross-examine a complainant in that way, but if it is done, the judge must warn the jury that the absence of complaint does not necessarily mean that the complainant's claim is false.

Furthermore, the judge must point out that there may be good reason for a victim of sexual assault not making a complaint. Very often, a significant reason for not reporting a rape is that a victim believes that the gathering of evidence and the prosecution of the charge may be worse than the crime itself. Psychologists have pointed out that friends and relatives, who are initially supportive, may develop negative feelings about the victim and that this can affect the victim's self-image. This provision is an open recognition that reasons like these may explain any reluctance to lodge an immediate complaint.

Publication of Names of Victims Prohibited

Section 194K of the Evidence Act 2001 (Tas) prohibits the publication or broadcast of the name, address, identifying particulars or photograph of any person against whom a sexual offence is alleged to have been committed, unless the court makes an order permitting publication. In the case of incest, because publication of the name of the accused will enable the victim and the victim's family to be identified, the prohibition extends to the name of the accused.

Corroboration of Evidence

Corroboration is confirmation (or backing-up) of a witness's evidence by other independent evidence. In a trial for sexual assault, it could be the findings of a doctor who examines the complainant, torn or stained clothes worn by the complainant, or the evidence of an eye-witness.

Section 136 of the Criminal Code states that there is no requirement in law or practice for a judge to give a warning in relation to uncorroborated evidence of crimes under Chapters XIV and XX of the Code. These chapters include all sexual offences. However, a judge may give such a warning if they feel it is justified in the circumstances.

Age of the Accused

A male person under 7 years of age cannot be convicted of rape, because he is conclusively presumed to be incapable of having sexual intercourse. This is in line with the general rule that no act or omission done or made by a person under the age of 7 years is an offence. Where a person under the age of 14 is charged with any offence, it still must be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make.

Rape in Marriage

The fact that an accused person is married to the complainant is not a bar to a conviction for rape.

Evidence of Previous Sexual Experience

Section 194M of the Evidence Act 2001 (Tas) prohibits all evidence which discloses or implies the sexual reputation of the person against whom a crime of a sexual nature has allegedly been committed, and prohibits evidence which discloses or implies the sexual experience of the victim, unless leave of the magistrate or the judge is first obtained in the absence of the jury.

Such leave can only be granted if the evidence has substantial relevance, and its potential value outweighs any distress, humiliation or embarrassment which the victim may suffer as a result of the admission of such evidence. Evidence of the victim's sexual experience that forms part of the events or circumstances out of which the charge arises does not require leave. This restricts evidence of sexual experience of the victim to situations where it is directly relevant, for example, to explain the source of pregnancy or disease.

Investigation of Sexual Offences

After a sexual offence, the victim is often taken to a hospital. At the North West General Hospital in Burnie, the Launceston General Hospital, and the Royal Hobart Hospital, there are specialised units to assist. The centres in all three hospitals provide treatment, forensic testing, and counselling or access to counselling. In Hobart, Launceston and Burnie there are also the Sexual Assault Support Services (‘SASS’). These services offer 24 hour counselling; information on medical, police and legal procedures; referral to other agencies as required and support for victims who are going through the court process.

At the hospital, the victim will be asked to have a complete medical examination, which involves a pelvic (internal) examination, the collection of specimens for laboratory tests, and the taking of photographs of injuries related to the offence. The kinds of specimens include combings of the pubic hair and vaginal/anal swabs to test for presence of semen. Photographs are made of any of the injuries and may include the face, body or vaginal/anal area. If the victim decides not to proceed with immediate police action the laboratory specimens will be held at the hospital for 48 hours.

If a complaint is made to the police, the complainant will be asked to give a full and detailed statement. The medical examination will become available to be used as evidence, and the complainant's clothing may be taken by the police to be used later as evidence. While all this is extremely unpleasant for the victim, it is very important if the offender is to be punished.

The Prosecution

If a person is charged, and decides to defend the case, a date will eventually be set for the committal proceedings, generally at least 6 months after the charge is laid. The committal involves the giving of prosecution evidence in a Court of Petty Sessions (Magistrate’s Court, Criminal Division) before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury. This initial procedure is viewed with some importance by the defence because it provides an opportunity to test the complainant by cross-examination.

If the magistrate decides that there is enough evidence, the defendant will be committed for trial at the next available sittings of the Supreme Court.

The trial usually takes place approximately 6 months from the date of committal. The prosecution process will place a complainant under enormous pressure, for a substantial period of time. When the complainant is cross-examined, many extremely personal details will be aired in a public arena. Where consent is an issue, credibility as a witness will be attacked.

Compensation for Victims

Where a victim suffers injury as a result of rape or other sexual assault, compensation may be awarded under the Victims of Crime Assistance Act 1976 (Tas). Victims of rape and sexual assault can be awarded a maximum of $30,000.

The Firearms Act 1996

Offences and Police Powers Under the Firearms Act

The Firearms Act 1996 (Tas) was introduced after the Port Arthur massacre, replacing the Guns Act 1991 (Tas). This Act implements by way of legislation the National Firearms Agreement, based on the premise that the ownership and use of a firearm is a privilege. Every person who owns or possesses a firearm is required to hold a licence and every firearm is required to be registered. Further, the range of firearms that can lawfully be used, possessed or collected is restricted.

Firearms Offences

Section 114 of the Firearms Act makes it a crime for a person to carry a gun with the intent to commit a crime or to resist arrest. It is also an offence (of aggravated assault) contrary to section 115 of the Act if, in the course of an assault, a person uses a firearm or threatens to use a firearm or carries a firearm. There is a significant range of other offences designed to preserve the integrity of the licensing and registration systems. These include offences of shortening firearms (i.e. a sawn off shotgun), possessing firearms without licenses, possessing silencers and prohibited magazines, and falsifying identification marks and records.

Public Order Offences

There are a number of public order offences set out in the legislation. These include:

  • obstructing police (s128);
  • possessing a loaded firearm in a public place (s111);
  • discharging a firearm in a public place (s112);
  • recklessly discharging a firearm (s113);

There are also a series of controls over the use and sale and possession of ammunition and gun parts.

Police Powers

Police are given extensive powers in relation to the enforcement of the provisions of the legislation. These include powers for police to:

  • stop and search a person who is believed to have possession of a firearm (s134);
  • enter and search premises with a warrant (s135);
  • enter any premises if the police officer believes that a dangerous situation has arisen (s137);
  • require a person to hand over any firearm for examination (s134).

Storage, Licensing, Registration and Prohibited Weapons

Storage

There are strict storage requirements under firearms legislation. Guns are required to be stored in locked receptacles, with the ammunition being stored separately from the firearm.

Licensing

In order to be granted a firearms licence a person must be at least 18 years of age, be a fit and proper person, have satisfactorily completed an approved firearms safety course and be able to meet the storage requirements imposed under the Act. In determining whether a person is a fit and proper person to have a firearms licence, the Police Commissioner is able to take into account a significant range of matters, including the person's ability to responsibly store and use a gun, together with their criminal history and mental health.

The Commissioner is precluded from granting a licence to a person who in the last five years has been involved in a crime involving violence, or has been sentenced to a term of imprisonment for an offence involving violence to another person, or who is subject to a firearms prohibition order or a restraint order relating to personal injury. Most importantly, the Commissioner cannot grant an application for a licence unless the Commissioner is satisfied the person has a genuine reason for possessing or using the gun.

Beyond the basic licensing restrictions, different categories of gun licences have different restrictions. Category B firearms licenses (being muzzle-loading firearms, non-self-loading centre-fire rifles and shotgun/centre-fire rifle combinations) cannot be granted to a person unless they have a need for that type of firearm. A Category C firearm (self-loading rim-fire rifle with a magazine of up to ten rounds, self-loading or pump action shotgun with a magazine capacity of no more than five rounds) cannot be granted to a person unless they need the firearm for primary production and actually need that type of firearm. Finally, Category D firearms licences (self-loading centre-fire rifles and shotguns with larger magazine capacities) cannot be granted to people unless they require the gun for animal population control or firearms collection. Finally, there is a category of firearms licences for hand guns (Category H), and membership of a sport or target shooting club is a prerequisite for such a licence.

Once a person has a firearms licence, before they can actually purchase the firearm they must obtain a permit to purchase. There are a series of requirements before such a permit is granted and these are very similar to the licence requirements.

Family Violence: automatic suspension of license

Where a restraint order, a police family violence order, or a family violence order is imposed, any firearms license is automatically suspended for the period that the order is in force. Police may also enter premises to search for and seize a firearm if a police officer reasonably suspects that a person has or is likely to commit family violence and that they are in possession or control of a firearm (s10(5), Family Violence Act 2004 (Tas)).

Registration

Every firearm must be registered.

Prohibited Weapons

Under the Act all self-loading, pump-action or semi-automatic firearms are prohibited, subject to specific permits or licence provisions of the Act.

Family Violence

What is Family Violence?

Family violence isn’t just hitting. The Family Violence Act (Tas) 2004 defines family violence as any of the following types of conduct committed by a person directly or indirectly, against that persons spouse or partner:

  • assault, including sexual assault;
  • threats, coercion intimidation or verbal abuse;
  • abduction;
  • stalking;
  • economic abuse; and
  • emotional abuse or intimidation.

Family violence has serious social, economic and health consequences for victims, their families and communities. Family violence is not only unlawful but in many instances can amount to serious criminal conduct.

If you are being coerced into sex against your will, this is rape. A relationship does not give either party sexual rights over the other person. A partner calling you names, or putting you down is a form of abuse – a person can be hurt emotionally and mentally as well as physically, and it is the emotional and mental harm that creates patterns of victimisation, by creating feelings of worthlessness in the victim.

The Family Violence Act 2004 has extended the definition of family violence beyond physical harm to other forms of harm that create abusive relationships. Just as you cannot force someone to sign a contract, or sell you their property, you cannot force someone to stay in a relationship or take their property because you are in a relationship, or force them to do what you want. Just as threatening, intimidating or verbally abusing a coworker is harassment, and against the law, so is doing the same to a member of a household.

Family violence and children

Research has shown that children are not better off in a home with both parents where they are witnessing or experiencing family violence. The trauma experienced by children in violent homes is similar to that of people suffering post-traumatic stress disorder. Any violence in the home traumatises a child – whether seeing, hearing or observing the effects of violence.

Safe at Home

Safe at Home is a whole of government strategy to reduce the incidence of family violence in Tasmania. Numerous branches of government, including the Justice Department and the Tasmania Police participate in this strategy.

Safe at Home legislation was considered by the Tasmanian government as early as 2003 as part of a broader, national strategy to reduce violence against women. The aim of the strategy has been to reduce the incidence of family violence, and to change the behaviour of offenders. A broader focus has been to alter attitudes toward family violence, and to send the message that violence against family is criminal behaviour, and not acceptable, just as violence is criminal and unacceptable in other circumstances.

The Safe at Home Strategy has three key goals:

  • Achieve a reduction in the level of family violence in the medium to long term
  • Improve safety for adult and child victims of family violence
  • Change the offending behaviour of those responsible for the violence

Some aspects of the Safe At Home Strategy that go to achieving these goals have been controversial, such as the pro-arrest focus for police on family violence callouts, as well as the orders that can be made by a court to exclude an offender from the  family home.

Pro-arrest policies

Pro-arrest policies create a twofold issue: the first is that arrest is always a matter of last resort in criminal justice, and so this policy is contrary to broader criminal justice policy. The second is that police are now empowered to arrest where this may be against the wishes of the spouse. A call out to a family dispute may not have been made by a party to the dispute, but by a neighbour. The law, until recently, has been that it is only with the consent of the other party to the family relationships that the abusive person can be arrested. However, this second issue is in keeping with the Safe At Home goals to make clear that family violence is just as criminal as violence in other contexts.

Orders to Vacate

With orders to vacate, one view is that this has created victims out of abusers by forcing them out of the family home. Some argue that this has not contributed to the resolution of troubled relationships, or improved the chances of a woman leaving a violent or abusive relationship, rather making her a target for continued violence.

On the other hand, the option is often for women and children to leave the home to live in shelters, while the perpetrator stays in the  family home, causing huge upset and trauma for children and women who are forced into such uncertain and unhappy circumstances. The use of orders to vacate is a matter of course in the ACT, and has proved effective where there is an adequately responsive police support system to prevent the return of abusive partners. The criticism of orders to vacate in Tasmania can be countered by the evidence of the entrenched practices of the ACT criminal justice system where orders to vacate have helped to maintain stability for the victims of family violence, as opposed to creating further victimisation by forcing them out of their home to run from violence.

In Tasmania, the issues with orders to vacate come down to whether the abusive partner is victimised through orders that go beyond what is necessary or reasonable in reducing family violence, or resolving the conflict within that relationship.

The Tasmania Police state that their involvement in the Safe at Home strategy is to:

  • Manage the risk that the offender might repeat or escalate their violence, and
  • Implement strategies to enhance the safety of victims of family violence

This is in line with the needs of victims who are staying in the family home, and indicates the responsiveness of Tasmania Police to family violence issues. The only circumstances where injustice can be most definitely perceived is where an alleged victim has fabricated claims of family violence. However, these circumstances are exceedingly rare. To call for an end to orders to vacate on the basis that a female domestic partner would fabricate claims of family violence in order to exclude and victimise a male partner contributes to gender attitudes that have helped to conceal family violence in Australian society.

The offender

The offender also has to be considered in these situations. Family violence is often difficult to discuss because it involves some of the deepest emotions and relationships that we have. Offenders are often not simply violent people, or bad people. Because of the ties between family and violence, the violence is often an expression of an inability to communicate rationally and verbally. We all lack coping mechanisms for something, we all lose our tempers, and we all do things we regret. The problem with family violence and abuse is that it is often ongoing and causes huge amounts of harm between generations. This is why the Safe At Home Initiative includes Offender Programs – society recognises that offenders needn’t be offenders, and often they don’t want to be.

The Family Violence Act 2004 (Tas)

In 2004, the Tasmanian government launched the Family Violence Act 2004 (Tas) and a new approach to family violence – to focus on the safety, psychological wellbeing, and interests of people affected by family violence. This does not exclude offenders, as they are also affected by family violence, in that there is a breakdown in their family relationships because of their behaviour. This is why there is are several offender programs aimed at rehabilitation of the offender, and minimising exposure to the court system.

By the end of 2004, Legal Aid Tasmania had the first legal aid officer specialising in family violence cases. Legal Aid continues to provide non-means tested assistance for victims of family violence. Since then, there have been reviews and updates of the legislation and the Safe at Home Strategy to improve the system.

The Act contains a broad definition of family violence, including economic abuse, which handicaps a person from leaving a relationship by creating dependency or disposing of assets to prevent a person from having independence (s8). The definition of family violence is contained at section 7, and emotional abuse or intimidation at section 9. See ‘What is family violence’.

The Act contains the powers of police to enter property on the request of a person who apparently resides at that premises, or where there is a reasonable suspicion that family violence is being, has been or is likely to be committed. The Act also contains rights of arrest, search and seizure (s10).
There are also the regulations concerning Police Family Violence Orders contained in the Act.

Police Family Violence Orders

Police Family Violence Orders (PFVOs) can require an offender to:

  • vacate any premises, whether or not that person has a legal or equitable interest in the premises;
  • not enter any premises or only enter premises on certain conditions, whether or not that person has a legal or equitable interest in the premises;
  • surrender any firearm or other weapon;
  • refrain from harassing, threatening, verbally abusing or assaulting an affected person, affected child or other person named in the order;
  • not approach, within a specified distance, an affected person, an affected child, other person named in the order or certain premises;
  • refrain from contacting an affected person, affected child or other person named in the order directly or indirectly or otherwise than under specified conditions.

Increased training, and the creation of specialist response teams in Tasmania mean that these conditions can be enforced by the police, and that enforcement of PFVOs is a priority for the Tasmanian Police Service.

Family Violence Orders

Family Violence Orders (FVOs) are made by a court. The conditions that can be included in an FVO are at the courts discretion as to what they deem necessary or desirable to prevent the commission of family violence against any person named in the order (s16(2)). These conditions will often duplicate PFVOs. The wider powers of the court, as compared to the police, extend to altering residential tenancy agreements (s17), and the confiscation of firearms (s16(3)(b)).

The Children, Young Persons and their Families Act 1997 (Tas)

The Children, Young Persons and Their Families Act (Tas) 1997 (CYPFA) is an Act to provide for the care and protection of children and related purposes. The Act is intended to provide for the care and protection of children in a manner that gives a child opportunity to grow up in a safe and stable environment.

There are numerous people required under the CYPFA to report concerns about abuse or neglect or certain behaviours (s14, CYPFA). These people include:

  • Medical practitioners
  • Registered or enrolled nurses
  • Midwives
  • Dentist and associated roles
  • Police officers
  • Probation officers
  • Teachers at education institutions
  • Paid child care providers
  • Certain person employed by government agencies

These people are required to report where they believe or suspect on reasonable grounds:

  • that a child has been or is being abused or neglected, or is an affected child under the Family Violence Act
  • that there is a reasonable likelihood of a child being killed, abused or neglected by a person with whom the child lives; or
  • where a woman is pregnant there is a reasonable likelihood that after the birth of the child the child may be killed, abused or neglected by a person with whom the child lives; or
  • a child after the birth will require medical treatment or intervention as a result of the behaviour of the mother or any other person with whom the woman resides or is likely to reside before the birth of the child.

After a concern is reported, assessment of the child and the situation can take place, if the Secretary of the DHHS is satisfied that there are reasonable grounds for the belief or suspicion. However, the Secretary is not obliged to take action where they are satisfied that the notification was not based on sufficient information or observations to constitute reasonable grounds for belief or suspicion (s17).

If an assessment does take place, there are a number of courses of action available, including restraint orders (s23), family group conferencing (s30), and care and protection orders (s42).

The Act also creates offences. For example, it is an offence under the CYPFA to leave a child unattended (s92). This does not include anyone under 16 who is not the parent of the child. It is also an offence under the same Act for a person who has a duty of care in respect to a child to fail intentionally to protect a child from harm (s91). Other offences include making a false or misleading statement in response to questions under an order of the Act (s102).

Resources for Victims and Offenders

Victims of family violence have to remember that it is not just themselves, but also their children who are affected by violence. The impacts of family violence on children are huge, and can result in children later becoming abusers themselves, and in the short term, impact on their social relationships with other children and adults.

Police officers in Tasmania have received specialist family violence training to provide better response to victims of family violence. Each geographical district has a Victim Safety Response Team (VSRT). A call to 000 will ensure that trained police officers or a member of the VSRT will be dispatched.

Family Violence Response and Referral Line

If you feel that you are the subject of family violence, or are witnessing family violence, the Family Violence Response and Referral Line is 1800 633 937. If the incident is occurring during your phone call, a police intervention team will be dispatched to the address. The hotline is open 24 hours a day, 7 days a week.

There are also counselling, information and support services available if you call the Family Violence Response and Referral Line that an operator can refer you to.

Putting an end to family violence is not only about criminalising the behaviour of abusers, it is also about changing community attitudes, including the attitudes of perpetrators and victims, and those around them. There are extensive resources available, including emergency services, court and legal services, counselling services and offender programs.

The national Sexual Assault, Family & Domestic Violence Counselling Line can also be contact 24 hours a day, 7 days a week for free, confidential counselling from qualified, specialist counsellors. The phone number is 1800 RESPECT – 1800 737 732.

Victim Safety Response Team

The VSRT has been trained to focus on improving victim safety in crisis situations. Their training has included the ability to offer a range of services tailored to family violence. These include:

  • completing a detailed risk assessment designed to identify the level of risk exposure
  • conducting investigations when the offender is removed from the home
  • gathering evidence and supporting information for a Family Violence Order
  • assisting in the preparation of the Family Violence Order
  • conducting a safety assessment for risk to the victim and initiating support action or removal from the home should they need to be moved to a place of safety
  • notifying the Child Protection Agency of any children present and at risk
  • undertaking a safety audit of the home
  • arranging the upgrade of security of the victims home
  • providing a safety plan to the victim
  • advising the victim on the options to be considered, including referral to support and counselling services
  • investigating breaches of Family Violence Orders
  • organising additional security patrols if required

The risk assessment aspect of the VSRT response also diminishes any likelihood of causing more problems for any party to the issue by ensuring that the outcome of their involvement does not handicap either party more than is required to prevent continued family violence. The safety of the victim and any other vulnerable party is paramount. Whether or not the new legislation and Safe At Home strategy is more effective than previous approaches is yet to be assessed.

Emergency Services

Emergency services can be contacted on 000.

Children and Young Persons Program

Children and young persons will be referred to the Family Violence Counselling and Support Service by Police, the Court Support and Liaison Service, the Child Witness Program, the DHHS or a Family Violence Worker.

If a child is in danger in a family violence situation, A full discussion is available from the Department of Health and Human Services pamphlet ‘Family Violence Counselling and Support Service’. This program can be contacted in the North/North West on 1800 608 122 or in the South on 6233 6981.

Court and Legal Services

Court and legal services include Child Witness Services, a dedicated phone support line, and dedicated court support officers. Child Witness Services is part of the Court Support and Liaison Service, and they can be contacted on the information provided below.

Court Support and Liaison Services can be contacted on 1300 633 773. Court support officers can provide information on taking out a Family Violence Order (a type of Restraint Order), information on the court process, staff, and the involvement of an applicant, victim or witness in the court process.

The dedicated court support officers work with Legal Aid, and can provide practical and emotional support in the following ways:

  • assisting with completing applications for Family Violence Orders (a type of Restraint Order)
  • accompanying the victim to court
  • providing personal support throughout the court process
  • discussing the impact of magistrate/judges decisions
  • de-briefing following court
  • following up through referral to other services

All of these services are free and provided by the Victims Assistance Unit in the Department of Justice. The contact details for the Victims Assistance Unit are:

Phone: 1300 663 773 (toll free)

Hobart: Phone 6233 5005

Launceston: Phone 6336 2128

Email: court.support@justice.tas.gov.au

Legal Aid can also assist.

Counselling Services

The Department of Health and Human Services runs the Family Violence Counselling and Support Service.

Services are free and confidential. Eligibility for the services is decided on the basis of whether you need support or information because a current or ex partner is or has been violent or abusive. People can refer themselves to the service simply by phoning one of the three offices between 9am and 5pm weekdays:

North West (03) 6434 5477

North (03) 6336 2692

South (03) 6233 3818

Services include information on the impacts of family violence on adults, children and young people; individual support and counselling, and group work programs for individuals affected by family violence.

Offender Program

Since 2004, the family violence offender intervention program has been helping offenders to stop patterns of behaviour that result in family violence. There is an initial screening process conducted by police to assess offenders. Those who are determined to be at a high risk of reoffending or increasing violence are referred to the program. Victims are kept informed of the progress of the offender. A detailed discussion of the program is available on the Safe At Home website. The Offender Program helps to rehabilitate offenders, and create means by which offenders can understand how and why they offend, and create better relationships in their  family lives.

Traffic and Parking Offences

There are many offences involving the use of motor vehicles. The offences can be grouped under three headings:

  • use of a motor vehicle when not authorised to do so, for example, driving while disqualified;
  • use of a motor vehicle in a manner proscribed by law, for example, dangerous driving;
  • use of a motor vehicle which does not comply with safety or registration requirements, for example, driving a motor vehicle without third party insurance or registration.

The main offences are contained in the:

  • Traffic Act 1925, the Traffic (General and Local) Regulations 1999 and Traffic (Miscellaneous) Regulations 1999;
  • Road Safety (Alcohol and Drugs) Act 1970;
  • Vehicle and Traffic Act 1999; and
  • Criminal Code 1924.

This part deals with some of the more important offences, as well as looking at the way courts handle traffic offence cases.

How Offences Are Dealt With

Each of the penalties indicated in this chapter is the maximum prescribed by legislation for a first offence, should the matter proceed to court. A penalty unit is currently $130. Each offence applicable to riders or skaters/pedestrians can also be dealt with by way of Traffic Infringement Notices (on-the-spot fines) (s43HTraffic Act 1925 (Tas)).

Traffic Infringement Notices

Traffic infringement notices are also sometimes called ‘on-the spot’ fines. This is a notice informing the driver that they have committed one of the lesser motor vehicle offences. The notice will state that the driver may avoid a court action by paying the penalty set out in the notice. These on-the-spot tickets are used to reduce the number of cases which have to go to court. Examples of these offences are: failure to comply with speeding limits, failure to wear a seatbelt, or failure to obey road rules.

These notices are payable with 28 days of issue. There are several courses of action that can be taken by a person who has received a traffic infringement notice (ss 15 and 17Monetary Penalties Enforcement Act 2005 (Tas)).

  1. pay the infringement in full
  2. if the car is not yours, or another person was in charge of the car at the time the notice was issued, apply to the issuing authority for withdrawal of the infringement notice
  3. Apply to the issuing authority for withdrawal of the infringement notice if you believe it has been mistakenly issued or there are extenuating circumstances, such as where a driver exceeded the speed limit, but was taking a very sick child to the doctor.
  4. Apply to the Director of the Monetary Penalties Enforcement Service for a variation of payment conditions
  5. lodge with the Director a notice of election to have the offence or offences set out in the infringement notice heard and determined by a court.

If a person pays a penalty in part or full, or applies for a variation of payment conditions or fails to take any action in relation to an infringement notice within 28 days, they are taken to be convicted of the offence or offences set out in the infringement notice (ss14(1)(c) and 20, Monetary Penalties Enforcement Act 2005). The person will be liable for enforcement procedures if they fail to pay the notice.

When a more serious driving offence is committed, the driver may be arrested and brought before a court. More commonly, there is no arrest but the police issue a summons to the driver to appear in court some time after the offence.

If the driver wishes to deny guilt, they should not pay the fine and instead lodge a notice of election with the Director of the Monetary Penalties Enforcement Service to have the matter heard in court. They will then have the chance to argue their case in court. If they are unsuccessful in court, they will have to pay court costs including witness expenses.

Court Process

When a driver is charged with manslaughter or causing death by dangerous driving, the case must go to a trial before a jury in the Supreme Court. If the driver defends the charge, the procedure is the same as for other indictable offence. Other motor vehicle offences are heard summarily before a magistrate in a Magistrate’s Court and the procedure is the same as for other summary offences. Proceedings in respect of offences under section 32(1) of the Traffic Act (reckless driving) must be determined by a magistrate (s32(3)).

Losing a Licence

When a driver pleads guilty to a driving charge, or is found guilty, they may be disqualified from holding a driving licence in addition to any other penalty which applies to the offence. The court has a general power to disqualify drivers from holding a driver's licence for any period if they are convicted of any offence under the Traffic Act or the various Regulations except for parking offences.

These offences include dangerous driving, driving under the influence, any criminal offence such as manslaughter or death by dangerous driving where death or bodily injury to a person is associated with the use of a motor vehicle, and drink driving offences. A longer period of disqualification applies in the case of second or subsequent offences.

In deciding what period to order, the court will usually consider the driver's need for the licence (particularly whether it is required for work purposes), the circumstances of the offence, the person's driving record and evidence of the person's character.

In addition, the Registrar of Motor Vehicles can suspend a licence if it receives evidence that a person is unfit to hold a licence. Note the difference in terminology: suspension is something done by the Registrar of Motor Vehicles; disqualification is ordered by a court.

In Tasmania, first year drivers who are guilty of drink-driving offences will be directed to undergo a lecture course run by the Road Safety officer (s18Road Safety (Alcohol & Drugs) Act 1970 (Tas)). If the driver does not attend the course they will not be reissued with a licence at the end of their disqualification period until they do so.

The Demerit Points System

The Registrar of Motor Vehicles in Tasmania may suspend a person's driving licence for any period they think fit, if the suspension is considered to be in the interests of public safety. In exercising this power, Registrar of Motor Vehicles considers the driver's record and uses the points system as an administrative guide. An offender is given a set number of demerit points for each of the offences. The demerit points system has been standardised nationwide.

Under the new system an offender who accumulates 12 or more points within a three-year period becomes liable to either a licence disqualification for 90 days or may opt to retain their licence for a 12 month probationary period.

There are over 1000 offences in respect of which a Traffic Infringement Notice may be issued! They are set out in the Traffic (Compliance & Enforcement) Regulations 2011 (Tas).

If the option of a 12 month probationary period is taken, the driver need only attract one more demerit point during that 12 months to automatically be disqualified from driving for a period of six months.
When an ‘on-the-spot’ ticket for a traffic offence is paid, the number of points for that offence are automatically recorded. If this latest offence will bring a driver up to 9 points within three years, it may be worthwhile not paying the ‘on-the-spot’ fine and having the matter heard in court. It is within the discretion of the magistrate to impose fewer penalty points.

Offences Causing Death or Serious Injury

Manslaughter

A person who drives a motor vehicle in a criminally negligent way and causes the death of someone else may be charged and convicted of manslaughter (s156Criminal Code Act 1924 (Tas)). A person in charge of a vehicle is under a duty to use reasonable care to avoid danger to human life (s150), and any breach of this duty that amounts to ‘culpable’ or ‘gross’ negligence will constitute manslaughter. This is a very high degree of negligence, much higher than the normal degree of negligence in civil matters. There must be pronounced disregard for the life and safety of others.

Manslaughter is a crime which must be tried before a jury, and the punishment may be a term of imprisonment up to a maximum of life imprisonment, but is usually in the range of 18-30 months. However, because in the past some juries were reluctant to convict drivers of manslaughter, the Criminal Code was amended to create a new offence of ‘causing death by dangerous driving’.

Causing Death by Dangerous Driving

This crime, along with manslaughter, is one of the few crimes where a ‘responsible citizen’ with no previous criminal record, if convicted, may be sent to jail. The crime involves causing death by driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case (s167A). The ‘public’ includes a passenger. Where a motor vehicle is driven on a public street, the nature, condition and use of the street, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the street, is taken into account.

This crime is a statutory alternative to manslaughter and sentences are normally less than for manslaughter. Once the act of driving has been shown to be voluntary and intentional it is for the jury to decide whether the driving is objectively dangerous. The driver's opinion on this point is irrelevant.

Reckless/Dangerous Driving

A person who drives dangerously, but does not kill anyone as a result, can be charged with ‘dangerous’ (or ‘reckless’) driving under the Traffic Act (s32(1)). In other respects, the offence is the same as causing death by dangerous driving. An accused can elect to have the charge tried by either a magistrate in the Magistrate’s Court or judge and jury in the Supreme Court.

Negligent Driving

A driver may also be charged with negligent driving under the Traffic Act (s32(2)). The manner of their driving in all the circumstances is examined to determine if the manner of driving has been negligent. It is a lesser offence than dangerous driving and the degree of negligence which must be proved will therefore be less. This charge is triable before a magistrate.

Driving, Drugs and Alcohol

Tasmania, like all other states, has special legislation to punish those who mix excess alcohol consumption and/or drugs with driving. The Road Safety (Alcohol and Drugs) Act 1970 (Tas) is described as an Act of Parliament ‘to protect the public against certain persons who drive vehicles after consuming intoxicating liquor or drugs and to restrict the right of such persons to hold driver's licences.’

The meaning of ‘driving’ is very wide, and includes a person having charge of a motor vehicle, steering a vehicle under tow and, depending on the circumstances, extends to a person who has just got out of a stationary vehicle.

‘Drink’ and ‘Drunk’ Driving

There is an important distinction between ‘drink’ driving and ‘drunk’ driving. ‘Drink’ driving is the term commonly used to describe driving with a blood alcohol content in excess of the prescribed limit (currently 0.05%). This offence is made out simply by the blood alcohol concentration being in excess of the prescribed limit, and has nothing whatsoever to do with the state of sobriety and driving ability of the person.

Three 285ml (10oz) glasses of normal beer, three glasses of wine or three nips of spirits (whether mixed or not) in an hour will put the average person over the limit. After the first hour it takes only one glass of beer per hour to keep a person topped up. It may take men of a smaller than average frame, and women, up to two-thirds less alcohol to put them over the limit. The average person with a healthy liver will lose 0.015% per hour if they stop drinking alcohol. This rate is not affected by a sleep, a shower or multiple cups of coffee. Time is the only cure.

Drunk’ driving is when the consumption of drink and/or drugs has substantially affected the person’s ability to drive. This leads to the serious charge of driving under the influence (DUI). The person may be charged with DUI regardless of their blood alcohol content but it is more common for the charge of DUI to be laid in cases of a high blood alcohol content as a high blood alcohol content is more likely to adversely affect driving ability.

Evidence in support of a charge of DUI will usually consist of observations made by police officers of the person’s ability to control the motor vehicle driving. However, it can also include evidence of the person’s allegedly drunken condition after their vehicle was stopped.

Penalties for the offence vary according to the circumstances of the commission of the offence. The more important factors include the degree to which other road users were endangered by the person’s driving, their driving record, and their blood alcohol reading. There are mandatory minimum penalties for alcohol related driving offences. For example, if a person is in breach of section 6(2) of the Road Safety (Alcohol and Drugs) Act 1970, the minimum fine is 2 penalty units and the maximum is 10 penalty units. The period of disqualification is for at least 3 months, and can be up to 12 months, and a justice has the discretion to impose a 3 month term of imprisonment.

Random Breath Testing (RBT)

Prior to the introduction of random breath testing, a driver could only be required to undergo a roadside breath test in certain circumstances. It was necessary for the police officer making the request reasonably to believe that the driver had been involved in an accident, or had committed a driving offence, or, as shown by the manner of driving, had consumed alcohol. The police are still empowered to require a driver to undergo a breath test in these circumstances. The police now also administer a breath test to every driver involved in a serious accident, whether or not that driver appears to have been at fault.

The introduction of random breath testing (RBT) in 1985, expanded the powers of the police to require motorists to undergo breath tests. Any person driving a motor vehicle on a public street, or occupying the driver's seat and attempting to drive the vehicle, can be required to undergo a breath test. A police officer may request or signal the driver of any vehicle to stop for the purpose of administering the breath test.

The device used for roadside testing is called an alcometer. The driver is asked to blow into this device, and an electronic light indicates whether the driver's breath contains alcohol above the prescribed limit. Failure to pass the roadside test cannot by itself lead to conviction for drink driving. If the test is positive, the police officer may detain the driver and take them to a police station, or some other place where a further test can be conducted on portable breath analysing equipment known as a breathalyser (see below).

Random breath testing is carried out by teams of police officers using mobile units containing a breathalyser popularly known as ‘booze buses’. Motorists are stopped at random and given a breath test. If the breath test proves positive, a breath analysis is conducted on the spot. Random Breath Testing is sometimes carried out by police in highway patrol vehicles. The usual practice is for one or two highway patrol vehicles to position themselves on either a major or minor road. Because the highway patrol vehicles are not always equipped with breathalysers, it is usually necessary for the motorist to be conveyed either to a ‘booze bus’ (if one is operating in the area) or to a police station for breath analysis. This must be done within three hours of the arrest (s24Road Safety (Alcohol & Drugs) Act 1970 (Tas)) (see below).

Driving

‘Driving’ under the Act does not only mean being behind the wheel of a car in motion. It has been given an extended statutory meaning to allow police greater powers to catch drink drivers (s2(4)Road Safety (Alcohol & Drugs) Act). Therefore a person may still be regarded as driving even though they have stopped the car, and got out.

In June 1988 Tasmanian police introduced a computerised alcotester (breathalyser), regarded as the most accurate and advanced in Australia. The driver blows into a mouthpiece and the machine makes a printout of the blood alcohol concentration level. A copy of the printout is given to the driver.

In Tasmania, any driver with 0.05 g of alcohol (or above) in 100 millilitres of blood, will be liable to conviction for this offence. The police officer's certificate containing the blood alcohol reading is admissible in court as proof that the person was driving with a blood alcohol level in excess of the prescribed limit (s23, Road Safety (Alcohol & Drugs) Act).

Breathalyser

Penalties Under the Road Safety (Alcohol & Drugs) Act 1970, section 17

Range of penalties for first offence

Blood alcohol    Penalty     Disqualification     Imprisonment
g/100ml            Units        Months                 Months

under 0.05          2 - 10          3 – 12                      3

0.05 - 0.1           2 - 10           3 - 12                      3

0.1 - 0.15           4 - 20           6 - 18                      6

0.15 or more       5 - 30           12 - 36                   12

Penalties, that is minimum and maximum Penalty Units, periods of disqualification and periods of imprisonment are doubled for second offences. Currently, one penalty unit = $130.

The application of this section does not extend to an offence committed before 12 December 1991 (s17(2)).

If a person satisfies the court that there are special circumstances why the minimum fine or minimum period of disqualification should not be imposed, the court may impose a lesser fine or a lesser period of disqualification (s17(5)). In some instances job loss and financial hardship for both the offender and their family will not be special circumstances within the meaning of section 17(5). Strong evidence establishing no possibility of alternative employment may be sufficient. However, this is a matter to be examined according to the facts of each case.

Limits on Breath Tests

Evidence of a blood alcohol concentration is not admissible if the breath analysis or blood test was taken in excess of 3 hours after the relevant act of driving (s24). In certain circumstances, a medical practitioner may refuse to allow testing of a driver who has become hospitalised or is in the doctor’s care (s12).

A police officer can require a person who is not at that time driving a motor vehicle to undergo a breath test if he or she believes on reasonable grounds:

  • that the person was immediately preceding that time driving on a public street with alcohol in their blood;
  • that the offence of causing death by dangerous driving has been committed;
  • that the vehicle driven by that person has been involved in an accident.

Refusing a Breath Test

Any person who refuses to take a roadside breath test commits an offence and is liable to a fine of $500 to $3,000 and up to 12 months imprisonment (s17). If a person refuses to undergo a breath analysis test, a further offence is committed, and the person is liable to a similar penalty for a first offence or, in the case of second or subsequent offences, a fine of $1,000 to $6,000 and up to 24 months imprisonment.

It is a defence for the driver to show that they were unable on medical grounds at the time to undergo the tests. It is also an offence for a driver to do anything to alter their blood alcohol level between the time the driver is stopped by the police and the time that a roadside breath test or a breath analysis test is taken. The driver will be liable to the same penalty as for refusing to undergo a breath analysis test (s14).

Blood Tests

A person who is required to undergo a breath analysis test may immediately afterwards request that a blood sample be taken by a medical practitioner for analysis. The person must be made aware of that option. However, it is important to note that the driver must still have undergone the breath analysis test, and will commit an offence by refusing. Where a blood sample is taken it must be divided into three parts, one of which is to be handed to the person, one to the Government Analyst and one retained as a control. A person has a right to have their portion independently analysed.

Unless the person is given the opportunity to analyse the sample themselves in this way it cannot be used as evidence against them. It is not commonly an advantage to have a blood sample taken in preference to a breathalyser test, as readings are usually higher, and will be used as evidence in preference to a breathalyser result if applicable. However, if the person has not consumed alcohol for at least one hour prior to driving, their blood sample may show a lower reading because of the time that has elapsed between the breathalyser test and the taking of the blood sample. Where a blood sample is taken from a person when unconscious, that person should be informed within 24 hours that a sample has been taken.

Insurance and Exceeding 0.05

Most insurance policies covering damage to motor vehicles contain a provision excluding the liability of the insurer if the driver was under the influence of intoxicating liquor at the time of an accident. The fact that a person has submitted to a breath test or breath analysis, or has been convicted of exceeding 0.05 offence, cannot by itself be used by the insurer to exclude liability (s21).

However, insurance companies can avoid liability to indemnify an insured, if they can show the driver was under the influence of alcohol by evidence other than a blood alcohol reading.

Parking

Parking offences fall into six main categories:

  1. parking in a metered zone where the meter is not running;
  2. parking in a metered zone longer than the maximum time notified on the meter;
  3. parking in a parking space where a voucher machine is available and failing to obtain or display a parking voucher;
  4. parking in a parking space for which a voucher machine is available longer than the maximum period allowed by a parking voucher;
  5. parking where signs prohibit it or where otherwise prohibited by law;
  6. parking partly inside and partly outside the parking space.

There are many other instances where parking is restricted by law. Some of the more common ones are:

  • on an intersection or within six metres of the corner of an intersection;
  • leaving a vehicle within 9 metres of the approach side or 6 metres on the departure side of a pedestrian crossing;
  • leaving a vehicle standing within 18 metres on the approach side or 6 metres on the departure side of a bus stop.

Parking Tickets

Where a parking offence is committed, any police officer or parking meter attendant may serve a parking ticket requiring payment of the prescribed penalty within 14 or 21 days of the date of issue of the ticket. A traffic ticket may be served personally by handing it to the owner of the vehicle, or, most commonly, by leaving it on or attached to the vehicle.

Unlike traffic offences, there is no points system for parking offences. Further, a bad parking offence record will not affect a driver’s licence, nor will it usually have any bearing on penalties for later parking offences.

Common Parking Signs

Some common parking restriction signs and what they mean are as follows:

NO PARKING: A vehicle may drop off or pick up a person etc., but there is no parking in a zone marked with such a sign.

NO STOPPING: A vehicle may not park except to comply with the requirements of a traffic control device of a police officer or an authorised officer.

CLEARWAY: A vehicle may not stop at the kerb for any reason, except that a bus, taxi or hire car may stop to pick up or set down passengers.

LOADING ZONE: When actually picking up or setting down goods, a truck may stand for up to 30 minutes, for the purpose of carrying goods to or from premises within 100 metres.

Receiving a Parking Ticket

There are three alternatives when a parking ticket is received:

  • pay the penalty within the prescribed period;
  • establish that there is no liability (see below); or
  • don't pay and have the matter dealt with by the court.

A number of factors will need to be considered including extra penalties and costs the person may have to pay if the matter goes to court.

Where there is no dispute that the offence was committed and that the driver was the person who committed the offence, it is best to pay the penalty and avoid going to court. If a person is temporarily unable to pay the fine, they may ask for an extension of time.

Reasonable requests for extension of time to pay may be made by telephoning the parking officer of the local council or the Clerk of Court of the Magistrate’s Court. If the penalty is not paid, a summons will be issued, and served personally by a council officer, police officer or by certified mail to the address shown on the motor vehicle registration. The matter will then be dealt with by a court on the date shown in the summons whether or not the defendant is present.

If the offence is proven, the court may impose a penalty. The amount of the penalty will be determined by whether the offence is a first offence or not, plus an amount for court costs.

If the driver believes that no parking offence was committed, they may contest the matter in court. For example, they may have received a ticket for overstaying in a two hour zone, and believe that the vehicle was not there for more than two hours. However, several factors need to be borne in mind.

  • The penalty involved is nearly always too small to warrant the expense of legal representation, so that the driver should be able to argue their own case;
  • It may be difficult to persuade the court to accept the driver's version of the facts in preference to that of the parking attendant or police officer; and
  • If the driver is unsuccessful, they may incur court costs.

Abandoned Vehicles

Problems are sometimes caused by the abandoning of vehicles in public streets. A car cannot legally be left on a public road or in a designated carparking place for more than 24 hours.

Police may mark a car they suspect has been abandoned. Efforts are made to contact the last registered owner. If this fails, the car will be towed away. After 3 months, such a car is sold by tender. The Council has powers to remove vehicles obstructing Council property or left on Council land.

Other Traffic Offences

Reckless Driving

A person who drives recklessly or at a speed or in a manner which is dangerous to the public commits an offence and is liable for a penalty of up to 20 penalty unit fine and/or imprisonment for 2 years for a first offence (s32(1)Traffic Act 1925 (Tas)). It is double this penalty for second or subsequent offences.

Speed Cameras

A person charged with an offence detected by a photographic detection device has a right to inspect any photographic evidence before the hearing of the charge. A certificate purporting to be signed by the Commissioner of Police (or a commissioned police officer) is evidence that the device was on that occasion a photographic detection device. The production of the certificate is evidence of the facts stated in the certificate. It is evidence that at a particular time and place the speed of a motor vehicle shown in the photograph was the speed endorsed on that photograph.

Driving Without Due Care and Attention

This is a summary offence under the Road Rules 2009 (Tas) (Reg 367). It is a common charge arising from a course of driving. The provision states ‘no person shall drive a vehicle on a public street without due care and attention, or without reasonable consideration for other persons using the public street.’ A conviction will depend very much on the facts of each particular case. The usual punishment will be a fine and/or demerit points.

Driving While Disqualified

An offence will be committed if a person drives a motor vehicle on a public street or attempts to obtain a driver's licence while disqualified, or while their licence is suspended or cancelled (s13Vehicle and Traffic Act 1999 (Tas)). For a first offence, a penalty of up to 40 penalty units will apply or up to 6 months in jail, plus a further period of disqualification of up to 3 years. For a second or subsequent offence the penalty is up to 80 penalty units, up to a year in jail and up to an extra 5 years disqualification.

Failure to Stop after an Accident

It is an offence for a driver to fail to stop after being involved in a motor accident (s33(1), Traffic Act). The driver must remain at the scene of the crash and give any assistance that is necessary or practicable. Failure to do so may involve a fine of up to 80 penalty points or up to 2 years jail.

Unlicensed Driver

It is an offence to drive a motor vehicle whilst unlicensed, and it is also an offence to permit an unlicensed person to drive (s8, Vehicle and Traffic Act). Penalty for first offence, up to a 20 penalty unit fine.

Refusing to Give Information to Police

Although a person is normally entitled to refuse to answer a police officer's questions, a driver of a motor vehicle is under a special obligation to provide information to the police. A driver who refuses to state their name and address if requested to do so by a police officer, commits an offence (s41(1)Traffic Act). A police officer may arrest a person without warrant if that person refuses to give, or provides a false, name and address (s41(3), Traffic Act). Since December 2002, it is now an offence not to carry your licence whilst driving, and to produce your licence to a police officer if requested to do so (s46A, Vehicle and Traffic Act).

Obtaining a Restricted Licence

In certain circumstances, the court can grant a ‘restricted’ (or ‘hardship’) licence where a driver has been disqualified from driving. A person must apply for a restricted license. It is not an automatic consideration of the court. A restricted license can only be issued to relieve ‘severe and unusual hardship’ likely to be caused to the driver, and their dependants, from the loss of licence (s18Vehicle and Traffic Act 1999 (Tas)). Depending on the circumstances of the offence, the certain loss of a reasonably paid and secure job will suffice, though there may be other special circumstances which will come within this definition. Inconvenience is not sufficient, and as such restricted licences will not be granted if there are other practical means of transport available, such as public transport or transport with work colleagues.

A person cannot make an application for a restricted licence where the driver has been convicted of a second offence under the Road Safety (Alcohol and Drugs) Act 1970 (Tas) within 3 years of the first. Similarly, restricted licenses cannot be applied for if convicted with a reading of 0.15% or more, driving under the influence of intoxicating liquor or drugs, a drink driving offence whilst a holder of a learner's or provisional licence, where he or she refuses to provide a sample of breath or blood for analysis without a reasonable excuse, and where a blood sample is taken whilst unconscious and he or she refuses to permit an analysis and is convicted without having a reasonable excuse.

It must also be shown that the granting of a licence would not be against the ‘public interest’. Thus drivers showing signs of a drinking problem or having a bad driving record may be refused. Also the court may take the view that the circumstances of the offence were so bad that the driver should bear the full weight of their punishment irrespective of the consequences.

The magistrate also has the option of extending the disqualification period if granting a restricted licence.

Making an Application for a Restricted License

Where a person has lost 12 demerit points (4 in the case of provisional drivers), they will be sent a notice in the mail which gives them fourteen days to apply for a restricted licence. Where the person is faced with the loss of their licence due to a drink-driving charge to which they are pleading guilty, it is usually the practice of the court to adjourn the case to a ‘restricted licence court’ when the person indicates that they will be applying for one. In either case, the person should go to the clerk of the court and obtain a restricted licence application form. This needs to be completed and filed with the court. Copies are to go to the police and to the Registrar of Motor Vehicles. The person should keep a copy for themself.

Applications should give:

  • name, address and occupation;
  • the reason the person has lost or is about to lose their licence (for example, loss of points, exceeding 0.05);
  • any previous disqualification or driving convictions. If unsure, the person can obtain a statement from the police by writing to police in their district explaining why it is needed;
  • the grounds for the application ;
  • the order sought;
  • a letter from their employer stating that the person will lose their job if they don't have a licence (if applicable).
  • the person must obtain a report from a doctor that they are not alcohol or drug dependent if they are disqualified under the Road Safety (Alcohol and Drugs) Act.

In addition, blood test results should accompany this report.

Grounds for Application

It is important to think very carefully about the grounds for the application. Minimum information consists of details of present employment, how long the person has worked there, their job description, pay, and why they need a licence to do the job. Applicants should discuss this in detail with their employer, because the employer is likely to be required to give detailed evidence of this in court, and make it quite clear that the person will definitely lose their job if the restricted licence is not granted. Simple inconvenience to the employer is not in the least relevant unless this means that the person will be fired.

For a restricted licence to get to and from work, it is important to check all other avenues. This includes available buses, work members who may be able to provide a regular lift, and even the cost of taxis. The court will need to be convinced that there is no other way. Record the information on the application. Attach a copy of the relevant bus time table.

The person should give details of their fixed financial commitments that is, rent, mortgage payments, instalments on hire purchase or personal loan, any other debts they are paying off and any other facts which place any extra financial burden on them. Details about their past employment history, educational qualifications and enquiries they have made for jobs closer to home, or non-driving jobs, should be included to indicate the job options if they lose their present job. Promotional prospects and superannuation rights (if any) should be mentioned.

If self-employed, the person should give details of their business, and whether it would be feasible to employ someone to drive. Often there is not enough room on the space provided in the form. If this is the case, then write in the space ‘Please see attached sheet for details’. Write out the grounds on a separate sheet.

The Order Sought

The person should be careful to ask only for a licence for such times or purposes as they really need it. Usually they will be restricted to particular hours, days of the week, area and/or purposes. This should be done in close consultation with the employer. If self-employed make sure that the restrictions agreed to will neither be too wide nor too narrow. This should enable the person to carry out such activities as are strictly necessary to keep their business going.

In the Court

A restricted licence application will usually be heard within two weeks of the application being filed. On the day, the person and their employer (if employed) must be available to give evidence. If the person is pleading guilty this will be dealt with first and penalties imposed. Then they will be asked to give sworn evidence to support their application. Their employer will then be called to do the same. The employer should be waiting outside the court during the person’s evidence. The prosecutor may ask questions both of the person and their employer to test the case.

If there is a suggestion from the person’s record on their blood alcohol reading that they may have a drinking problem, the person should come prepared with a report from their doctor to say they are not alcohol dependant.

Offences

The restricted licence must be carried at all times. It is also a serious offence to drive outside the terms of the restricted licence and this may result in its loss, a large fine, a further period of disqualification and even, in serious or repeated instances, jail.

The magistrate also has the option of extending the disqualification period if granting a restricted licence.

Defences

There are several defences available in response to a parking or traffic offence.

Denying Responsibility

If there is no dispute that the offence was committed, but the owner disputes liability, then it is better to take the appropriate action immediately, rather than to wait for a summons. In certain circumstances, the owner is not held liable and these circumstances also apply where the offence was committed in a Council parking area, and the notice was issued by an officer of the Council. In such a case, the appropriate statutory declaration should be sent to the Council rather than to the Superintendent of Traffic. The Council has authority to issue a ‘withdrawal notice’ in this case.

The Vehicle was Stolen or Illegally Taken and Used

Where the theft or taking of the vehicle was reported to the police, a declaration from the police lodged with the Council will usually be sufficient to end the matter. Where the theft or taking was not reported to the police, a statutory declaration setting out the circumstances of the theft, or the taking of the vehicle, and explaining why it was not reported, should be made. This should then be sent to the Council at the address shown on the notice. If the explanation is accepted, that will be the end of the matter. If the explanation is not accepted, there is the option of letting the matter go to court and attempting to satisfy the court that the car was stolen or illegally taken and used at the time of the offence. However, the considerations noted above should be borne in mind, and it would be best to seek legal advice before proceeding.

Someone Else was in Charge of the Vehicle

In this case, one solution is to obtain the amount involved from the person and pay the penalty. If the person is unwilling to pay, a statutory declaration containing the name and address of the person involved, and setting out the circumstances in which they came to be in charge of the vehicle, can be made. This should be sent to the Council at the address shown on the notice.

The Owner Does Not Know Who Was in Charge of the Vehicle

Such a circumstance will rarely arise. To avoid liability the council must be satisfied that the owner does not know and cannot with reasonable effort find out the name and address of the person in charge of the vehicle at the relevant time. A statutory declaration should be made, setting out all the relevant facts including efforts to find out the name and address of the person involved. This should be sent to the Council at the address shown on the notice. Such explanations are, however, rarely accepted. Then there is the question whether to let the matter go to court, where the owner can attempt to satisfy the court that they are not liable. As noted above, it would be best to seek legal advice before proceeding.

Youth Justice

The Youth Justice Act 1997

The Youth Justice Act 1997 (Tas) governs the processes for young offenders in the Magistrates Court (Youth Justice Division) and the Supreme Court. This includes the responsibility to determine both care and protection matters and summary criminal proceedings in respect of young people. Amendments to the Youth Justice Act were tabled in Parliament in late 2012 and commenced on March 1, 2014. Some further changes begin on October 1, 2014.

The Magistrates Court (Youth Justice Division) is a court of summary jurisdiction that deals with offences other than prescribed offences. Prescribed offences are offences cannot be dealt with in the Youth Justice Division. Instead, they must either be dealt with in the criminal or general division of the magistrates court (just like any other adult matter) or if they are particularly serious they may need to be dealt with in the Supreme Court.  A court under the Youth Justice Act is made up of a single magistrate to hear the charges against the defendant.

Purposes of the Act and Sentencing

A major change that came into effect on March 1st, 2014 is that the word ‘punishment’ no longer appears in the Act. The word ‘punishment’ has been replaced with ‘sanction’ to reflect the greater emphasis on rehabilitation that the amendments have also ushered in to the Act. Where previously a sentencing Magistrate had discretion to consider rehabilitation as one of several principles of sentencing, the Magistrate is now required to give rehabilitation more weight than any of the other considerations of sentencing.

The objective of the Youth Justice Act 1997 is to appropriately administer youth justice with an emphasis on diverting young people who have admitted committing an offence away from the criminal justice system by emphasising informal cautions, formal cautions, community, family, and conferencing. Importantly, the Youth Justice Act seeks to encourage youths to take personal responsibility for their actions. Other principles that oversee the Act include that youth are not to be treated more severely than an adult would be and that victims and guardians are given an opportunity to participate in the process of dealing with the youth.

The amendments also require that the sentencing judge consider the impact of sentence on the young person’s chances of education, training and finding or retaining employment. Overall, the amendments have emphasised the objective of the Act to divert young people away from the criminal justice system. Retribution is secondary to rehabilitation.

Prescribed Offences

A prescribed offence is an offence that is not within the jurisdiction of the Youth Justice Division of the Magistrates Court. A youth charged with a prescribed offence will appear before the Supreme Court of Tasmania. Prescribed offences include crimes that are of such magnitude that the youth will be tried before an adult court. Prescribed offences are not dealt with by the Youth Justice Division at all. Once an offence is referred to the Supreme Court the sentencing options are governed by the Sentencing Act 1997 (Tas) not the Youth Justice Act. The Sentencing Act is not subject to the limitations on sentencing imposed under the Youth Justice Act.

Prescribed offences are organised by type of offence and the age of the offender. For a youth who is less than 14 years old, the prescribed offences are murder, manslaughter and attempted murder. For a youth who is 14, 15 or 16 years old, prescribed offences also include aggravated sexual assault, rape, maintaining a sexual relationship with a young person, armed robbery and aggravated armed robbery. Prescribed offences also include ‘being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument’. These prescribed offences must all be dealt with in the Supreme Court.

The other main category of prescribed offences includes most traffic offences if committed by a youth who is 17 years old on the date of the offence. This category of prescribed offences includes most traffic offences such as drink-driving, ‘hooning’ and driving without a licence.  If any 17-year-old commits any traffic offence under the Traffic Act 1925 (Tas), the Vehicle and Traffic Act 1999 (Tas), and the Road Safety (Alcohol and Drugs) Act 1970 (Tas), (including ‘hooning’ contrary to the Police Offences Act 1935 (Tas)s37J).they will be dealt with as if they were adults.

Age of criminal responsibility

Section 3 of the Youth Justice Act defines a ‘youth’ as a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed (or is suspected to have committed) occurred.

Youth Justice Process

Detention

One of the major due-process reforms introduced by the Youth Justice Act was the abolition of indeterminate sentences of imprisonment as was provided in the now repealed Child Welfare Act 1960. A guiding principle in sentencing is that the penalty imposed on a young person should be proportionate to the offence and should be no greater than an adult would receive for the same offence (s5). Another important guiding principle for sentencing is that custody should be used as a last resort and for as short a time as necessary (s5). The maximum period for detention of a youth in custody is 2 years (s81(2)).

Arrest

As explained above, the Youth Justice Act has a set of diversionary procedures in place to steer a young person away from the criminal justice system. However a youth may be arrested by a police officer on a warrant, or by a police officer without a warrant.

In determining whether or not to arrest, the police officer must believe that the offence is serious enough to warrant an arrest and that either:

  • the arrest is necessary to prevent a continuation or repetition of the offence; or
  • the arrest is necessary to facilitate the making of a police family violence order, within the meaning of the Family Violence Act 2004, an application for a family violence order under that Act or an application for a restraint order under Part XA of the Justices Act 1959; or
  • the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or
  • the youth is unlikely to appear before the Court in response to a complaint and summons. (s24)

Under forthcoming amendments, which will come into effect in October 2014, a new section 24A will create duties of police officers where arresting a youth. These duties will include:

  • informing the youth of the youth’s right to refuse to answer questions, or to participate in investigations, except where required to do so by or under an Act of the State or of the Commonwealth; and
  • ensuring that, if practicable, the youth’s guardian is notified of the arrest.

A youth is not required to attend a police station with the police officer unless they are under arrest. If unsure, it is advisable that the youth enquire as to whether they are under arrest, and if so, for what offence. If they are not under arrest, they are free to go. General principles of arrest apply to youth and adults alike.

Generally, a youth does not have to answer any questions, beyond giving their name and address. It is best to be polite and cooperative, within reason. If the offence is a motor vehicle or drug offence they may also have to give their age, the name and address of the owner of the vehicle (where the young person is the driver, but not the owner of a vehicle) or, if the young person is found with a controlled substance (e.g. a drug) they may be required to give the place and name of the person from whom the substance was obtained (Traffic Act 1925, s41 and Misuse of Drugs Act 2001, s31). It is advisable that the youth tell the police officer politely that they do not wish to answer any questions until they have spoken to a lawyer or guardian. If a youth is arrested they are required to be brought before a Youth Justice Court as soon as practicable.

Police powers under the Police Powers (Public Safety) Act 2005 also have the potential to impact on young persons. Powers under the Act can only be exercised upon authorization (by the Commissioner, and in some cases, the Supreme Court) in certain circumstances where there is a risk of a terrorist act, or such an act has occurred or is about to occur. Under the Act, police may, in certain circumstances ask for a person’s identity, conduct an ordinary search or, with a Court order, a strip search, stop and search a vehicle, search and enter a premises or ask people to leave or remain in a cordoned-off area. These powers may be exercised in relation to certain persons, persons in certain vehicles or persons in certain areas, as specified in the authorization.

The young person may contact a lawyer and may challenge the order in court. Complaints about treatment by police while detained can be addressed to the Ombudsman. Persons detained can be searched or strip searched and certain identification material can be taken, in the presence of a parent or guardian. The young person must not be questioned by police while detained on an order, other than to confirm their identity.

Young people may also be detained by the Australian Federal Police under a preventative order under Commonwealth legislation, Anti-Terrorism (No 2) Act 2005, for up to 48 hours.

Bail

If a youth is refused bail by a police officer (Justices Act 1959, s34) he or she may be detained in a watch house until they are brought before a Justice of the Peace (JP), if they are arrested after hours, or a Magistrate, if arrested during business hours, to determine whether to grant bail (s25). If a JP does not grant bail, the young person is detained in custody until the next Magistrate’s Youth Justice Court sitting. Once the decision is made to remand the young person, they are detained in a remand centre (rarely), or otherwise at the Ashley Detention Centre. If detained at a remand centre, it is for as short a time as possible, until a transfer to Ashley can be arranged.

In rare circumstances, a young person may be detained in a prison service facility, in a Remand Centre when on remand or in prison, when serving a detention order. A Memorandum of Understanding exists between the Department of Health and Human Services, Youth Justice Services, and Justice Prison Service which allows for the transfer of offenders and remandees between Remand Centres, Ashley Detention Centre and the prison in certain circumstances.

Under forthcoming amendments that will come into effect in October 2014:

  • a new section 24B of the Youth Justice Act will provide a court or justice, or a police officer, who intends to admit a youth to bail must have regard to youth justice principles (such as only detaining a youth for a short a time as necessary), so far as they may apply to the circumstances of the youth, in deciding whether to impose any conditions on the bail and in determining the conditions that are imposed on the bail. Other particularly relevant principles of youth justice include:
  • that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
  • that the community is to be protected from illegal behaviour;
  • a youth should not be withdrawn unnecessarily from his or her family environment; and
  • there should be no unnecessary interruption of a youth's education or employment.

All of these principles have a particular bearing on permitting and setting conditions of bail.

A new Section 24C will set out consequences for a breach of bail conditions, other than where a breach is a failure to appear before a justice or court. A breach of other bail conditions will not be an offence, but can result in the breach being taken into account in sentencing, if the youth is convicted of the offence for which they were bailed.

Aboriginal young people

Processes for Aboriginal young people who pass through the Tasmanian criminal justice system are geared toward recognition of the cultural community of the youth and the importance of cultural and community in the rehabilitation process. For example, a formal caution administered to an Aboriginal young person ‘is to be, if practicable’ administered by an Elder of the Aboriginal community, or a representative of a recognised Aboriginal corporation. An Aboriginal detainee has a recognised right to receive visits from a person acting on behalf of the Aboriginal Legal Service (ss 5(2) and 10).

Youth Justice Courts

Youth Justice Courts are generally closed courts. The press and all members of the public are generally excluded from the courtroom. In any particular case the only people usually present in a court when an individual case is being dealt with are:

  • the Magistrate;
  • the Magistrate's Clerk;
  • a security guard in uniform on duty at the courtroom door;
  • a police prosecutor (a plain clothes police office) in criminal matters;
  • a representative of the Department of Health and Human Services;
  • the child;
  • the child's guardian or guardians;
  • the child's legal representative (if the child is represented); and/or
  • the legal representatives of the child's guardian or guardians.

In practice, other solicitors representing other children or guardians also remain in the courtroom waiting for their cases to be called on. Under section 30 the witness, victim, persons engaged in professional study or other persons that the court permits, in the interests of justice or to assist in the case, may also be present.

The court has a duty to ensure that the youth before the Court and the youth’s guardian, if present, understands the nature and purpose of the proceedings, and the right of the youth to have legal representation.  It must ensure that the youth understands their rights in relation to entering a plea and the consequences of entering a plea and that they have access to copies of any report, or record of previous offending history, relating to the youth and that they understand that they can comment on any such report or record. The Court must also ensure that the youth has the right to make, and knows the importance of making, a plea in mitigation if the youth is guilty of the offence. The Court must respect the cultural identity of the youth.

The Youth Justice Act 1997 (Tas) requires young offenders to be given appropriate treatment, taking into account their social and family background, cultural identity, age, and maturity.

Evidence

The rules of evidence that apply in the Magistrates Court (Youth Justice Division) are the same as if the person were an adult, being tried in the Magistrates or Supreme Courts. It should also be noted that evidence obtained through questioning the youth in the absence of a lawyer may be inadmissible in court.

The Court Hearing

Where community conferencing or a formal caution is not being used, the child may appear in the Youth Justice Court. The procedure in the Magistrates Court (Youth Justice Division) is governed by the Justices Act 1959 (Tas) except where inconsistent with the Youth Justice Act. The procedure is different depending upon whether the plea is one of guilty or not guilty.

Plea of 'Guilty'

The first court appearance is on an appointed day. If a pre-sentence report is available, a court will often dispose of the matter on that same day. Otherwise the matter will be adjourned to another date on which day the report will be available. The length of time it takes to obtain a report can range from 4-6 weeks. The following is the usual order of events. The name of the youth is called outside the court, usually by the court security guard.

The youth and their parents go into court. The magistrates clerk identifies the youth for the magistrate, and if the youth is unrepresented who the accompanying adults are. If the youth is represented, or if the parents are represented, the lawyer will advise the magistrate that they appear for the youth and identity the other adults present. The youth is at all times after the initial identification by the magistrate’s clerk referred to and addressed by their first name.

The charge is read, usually by the magistrate's clerk, and the youth is asked if they plead guilty or not guilty. The parents or guardians present may also be asked if they agree with the plea that the youth wishes to enter to the charge.

The prosecution reads out the police statement of facts and surrounding circumstances of the offence. If there is anything in the statement with which the youth disagrees, they should say so when given the opportunity to speak by the magistrate. It is important to listen carefully to this part of the case. If any of the police facts are disputed by the youth, and the prosecutor wishes to prove the police version, then the matter will have to be adjourned to another day for the hearing of oral evidence from witnesses on the disputed facts. If the prosecution does not wish to prove the police version of disputed facts, then the court will accept the youth's version unless it is clearly unbelievable.

The magistrate is also given a list of the youth's prior convictions, if any. This list is first of all shown to the youth and their parents or guardian. If there is any disagreement with the details of this list of prior convictions the prosecutor should be told immediately. Unless they choose to apply to the court to call evidence (which will take place on another day) to prove the disputed prior conviction, they will tell the magistrate to disregard the prior convictions that are disputed, and will usually mark with a pen those convictions in question.

The Court can request that the Department of Health and Human Services provide a pre-sentence report on the youth. The magistrate may consider this report. It is mandatory, in cases where more severe penalties are likely to be applied, that the magistrate has such a report. Reports can take several weeks to be put together and can contribute to delays in sentencing. The new section 33AA will speed the process in that oral pre-sentence reports can now be delivered in court.

Both parents and the youth should be given knowledge of the contents of the report before appearing in court by the child welfare officer who prepares the report. If there is anything contained in the report with which either the youth or the parents or guardian disagree then the court should be advised of those areas of disagreement. If the youth and/or parents or guardians are represented, then the legal representative involved will be given the opportunity to read the report. The lawyer will ask the youth and/or parents or guardians as to any areas of dispute with the contents of that report. It may be necessary for oral evidence to be given before the court (on another day) to resolve such disputes.

The magistrate then asks the youth or their parents or guardians whether they have anything to say. (If the youth is represented this is the job of the lawyer). This is the opportunity to tell the magistrate if there are any extenuating circumstances, for example, the youth was led into the offence by older persons, or they were having difficulties at home or school. The youth can also tell the magistrate that they are sorry for breaking the law.

After considering all the material, the magistrate passes sentence. The various orders the magistrate can make have been set out in Sentencing Orders.

Plea of 'Not Guilty'

If the youth pleads not guilty, the procedure is longer and more complicated. On the day of first appearance the plea of not guilty is entered and the matter is adjourned to another day for hearing. On that hearing date, all police witnesses will be present, and the youth should have all of their witnesses present. The procedure for the hearing is exactly the same as it is for adults in the Magistrates Court.

If a youth is charged with a serious indictable offence, it may be one that only the Supreme Court can deal with. But in many such cases, the youth as an election (a choice) to have it dealt with in the Magistrates Court. If it is a case that only the Supreme Court can deal with, then after pleading not guilty, the case goes to the Supreme Court and may come back to the Magistrate Court for “preliminary proceedings” where the case against the youth can be tested before being finally heard in the Supreme Court. Legal advice should be obtained before any decisions are made to either go to the Supreme Court or about whether to have preliminary proceedings.  See generally, Youth Justice Act 1997, section 3 definition of ‘prescribed offence’ s161 ‘jurisdiction of Court ‘; and Justices Act 1959 Part VII.

Adjournments

Whenever criminal proceedings against the youth are adjourned a youth (ss 58 and 74B, Justices Act):

  • may be admitted to bail (with or without conditions such as reporting at intervals to a police station);
  • may be remanded in the care of the Secretary of the Department of Health and Human Services, who will then place the child in Ashley Detention Centre;
  • may be remanded in custody in jail;
  • may be allowed simply to leave the court having been advised of the date of their next appearance (this is usually referred to as ‘the matter having been adjourned without notice’).

Reports

Reports come from several sources. Youth Justice Worker Reports are usually prepared after the worker has visited the home and talked to the youth and their parents, and perhaps also schoolteachers.

Occasionally with youths 15 and over, reports are sought from the Youth Justice Service especially where community service orders and/or supervised probation is being considered as part of the sentence to be imposed on the youth.

Occasionally psychiatric reports are sought, as are reports under the Alcohol and Drug Dependency Act 1968 where alcohol or drug dependency/abuse appears to be a problem and a consideration in the committing of an offence by the youth.

Community Conferencing

Community conferencing is the third tier of diverting youth away from the court and sentencing system. The rapid changes of adolescence and the tendencies for risk-taking behaviour that manifest in young people mean that the court system is often too slow, or formal to address the issues that underlie unlawful behaviour. Community conferencing is meant as both a restorative justice process and a means of rehabilitation, aiming for greater flexibility and responsiveness than the court system permits. The youth is encouraged to acknowledge responsibility and make reparation to the victim of the offence. Community conferencing is used around the world as a means of bringing youth into a community-based structure that allows for learning and growth from unlawful behaviour. It can reduce reoffending whilst promoting community ties with youth.

A youth may be diverted into the community conferencing system at the discretion of the police officer, as an alternative to formal cautioning, where the offence is considered too serious for informal cautioning. In order for this to happen, the youth must agree in writing to attend, and also to accept responsibility for their offending behaviour. Under the new section 12A of the Youth Justice Act 1997 (Tas), a youth may also be referred to community conferencing if they fail to substantially fulfill the undertakings of the caution. Courts can also order community conferencing as a diversion from sentencing, but it is court-ordered, and takes the element of self-responsibility away from the youth. If a youth fails to fulfill undertakings agreed to at a community conference, the offence that triggered the conference may be dealt with by a court, and, if the youth is found guilty, the court can impose a sentence or order.

Community conference requests must first be made by the police officer to the Secretary of the DHHS (s13). The Secretary then appoints a facilitator to make contact with the necessary parties (s14). The Secretary must be provided with the names and addresses of the youth, his or her guardian/s, relatives who may be able to usefully participate in the conference, people with close associations with the youth, and the victim (s13). The facilitator may also invite any other person they believe may be able to usefully participate in the community conference. The victim is not obliged to attend; however if they do choose to attend, one or more support persons may accompany them. The young person is entitled to be accompanied by one support person.

Compliance with a community conference order and any undertakings arising from that conference will see the charge before the Court dismissed (s41) and the records of the court amended (s41(2)). Nevertheless, if the youth later appears before a youth justice court, the court may well refer to previous sanctions imposed by a community conference when determining an appropriate sentence for a subsequent offence (s47(4)(b)).
The following sanctions may be imposed at a community conference (s16):

  • administer a caution against further offending;
  • require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person because of the offence;
  • require the youth to enter into an undertaking to pay compensation for loss or destruction or damage to property;
  • require the youth to enter into an undertaking to make restitution of property;
  • require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service. Amendments will alter these provisions in the near future;
  • with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;
  • require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

An undertaking may have a duration not exceeding 12 months. If practical, the community conference should reach a decision on the sanctions to be imposed on the youth by consensus. The community conference is taken to have failed to reach a decision unless all the following persons agree to the imposition of the sanction:

  • the youth;
  • the police officer; and
  • if the victim is present at the conference, the victim.

Sentencing Options for Youth Offenders

A police officer may be of the opinion that despite admitting the commission of an offence, the nature of the offence requires more formal proceedings than any of the above diversionary procedures. In cases such as this, the police officer may file a complaint for the offence before the Court. Court is also a probably outcome if the youth fails to appear at a community conference, the conference fails to make a decision, or the youth fails to fulfill an undertaking agreed to at a conference. The court may then deal with the offence that originally triggered the conference and the court may impose a sentencing order (s47Youth Justice Act 1997 (Tas)). These orders include:

  • dismiss the charge and impose no further sentence;
  • dismiss the charge and reprimand the youth;
  • dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
  • release the youth and adjourn the proceedings upon conditions;
  • impose a fine;
  • make a probation order;
  • impose a community service order;
  • impose a determinant period of detention.
  • under forthcoming amendments, impose a certain sentences under the Sentencing Act 1997 (Tas) if the offender is 18 years old or more but committed the offence when they were a youth.

In addition to the above the court may also make one of the following orders:

  • a suspended detention order; and/or
  • a restitution order; and/or
  • a compensation order.

The court may not impose probation, community service orders or detention without obtaining a pre-sentence report. The court can only issue a community service order if a youth indicates willingness to comply with such an order.

Recording convictions

Section 48 of the Youth Justice Act states that the Court must not impose a sentence that is more severe than would be imposed on an adult who commits the same offence while section 49(1) provides that if the court imposes a sentence that does not include a fine, probation, community service or detention a conviction is not to be recorded. Section 49(2) provides that if the court imposes a sentence of a fine, probation or community service the court may order that the conviction either is or is not to be recorded. If the court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order a conviction must be recorded (s49(3)).

In determining whether or not to record a conviction, the court must have regard to all the circumstances of the case, including (s49(4)):

  • the nature of the offence;
  • the youth’s age;
  • any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
  • the impact the recording of a conviction will have on the youth’s chances of rehabilitation generally or finding or retaining employment.

Under forthcoming amendments, in determining whether or not to record a conviction, the Court must ensure that the matter of rehabilitation of the youth is given more weight than is given to any other individual matter.

Cautioning

Cautions are the first tier of diverting youths away from the criminal justice system. They are meant to provide a means of conveying the gravity of the situation without necessitating the stress of a court appearance, on the youth. Informal cautions are for offences that a police officer deems trivial enough to not warrant more formal means of punishing a young offender. After informal cautions come formal cautions, followed by community conferencing, and finally the Youth Justice court.

Informal cautions

Police have the discretion to informally caution young offenders where the youth admits the commission of an offence. Records are kept of informal cautions. Informal cautions occur on the spot, where the young person admits to the commission of the offence (section 8). Agreeing to an informal caution may affect how the police engage with a young person on subsequent occasions when the young person is suspected of having committed an offence. A second offence is more likely to lead to a formal caution or court proceedings.

Formal cautions

Where a young person has been apprehended and admits to the commission of the offence, the police can formally caution the young person (s9(1)). It is a requirement that a youth justice worker be present at a formal cautioning.

There is always the option for an arresting officer to issue a formal caution for offences such as shoplifting, trespass, and under age drinking. If a young person agrees to a formal caution, this has legal consequences. It can be used as evidence of a prior offence, which may affect sentencing if there is a subsequent conviction (s10(3)(b)).

During the formal caution the officer may require that the young person enter into one or more of the following undertakings (s10(2)):

  •  to pay compensation for loss of or damage to property and/or injuries suffered, expenses incurred or other loss suffered by the victim of the offence;
  • to make restitution of property;
  • to perform a specified period (not exceeding 35 hours) of community service which is for the benefit of the victim of the offence. Amendments to the Act will see restrictions on the types of community services that a youth under 13 can perform, and an additional cap on cumulative hours will apply 70 hours for a youth less than 16 and 210 hours for a youth 16 and over.;
  • to apologise to the victim of the offence;
  • to do anything else that may be appropriate in the circumstances.

Undertakings have a maximum duration of three months. If the undertaking is entered into and completed there will be no further action taken. However, if a young person has not ‘substantially completed’ a formal caution without reasonable excuse for not completing the undertakings, the Police have the option of consulting with the Secretary of the Department of Health and Human Services and taking further action, either by referring the youth to community conference or filing a complaint on the original charge. There are time frames that limit the period of time within which this can happen.

There are provisions in the legislation to allow Aboriginal Elders or their representative to administer a caution where the young person identifies with the Aboriginal Community (s11). There is also provision for other community representatives of religious, ethnic or other community groups to administer cautions where the young person identifies with that particular community (s12).

The young person also has an option not to agree to be formally cautioned. In deciding whether or not to admit to the commission of an offence, the young person is entitled to legal advice. If the young person does not admit to the commission of the offence, legal advice should be sought and questions relating to the offence should only be answered in the presence of a legal representative.

Given the consequences of admitting to an offence, young people are always encouraged to seek legal advice in all circumstances in which they are considering admitting to the commission of an offence.

Victims can be present at the administering of the formal caution. If the victim is not present while the formal caution is administered, section 10(9) provides that they may be informed of the identity of the offender, as well as how the offence has been dealt with.

Community Service Orders

Section 69 of the Youth Justice Act provides for imposing community service orders on young offenders aged 13 to 17 years. The court may make a community service order only if the youth is at least 13 years old and indicates a willingness to comply with the order, and a pre-sentence report states that the youth is a suitable person to perform community service. A young offender, under the age of 13, may be subject to undertakings, but can not be given a community service order. For youths under 16 years of age, a maximum is allowed of 70 hours of undertakings. For youths over 16, the maximum is 210 hours of undertakings. This would be applicable where a youth may have been sentenced in relation to several offences, or have a community service order from a prior offence still ongoing, or have a community service undertaking from a formal caution (s10(2)(c)).

The recent amendments to the Act have also made it possible for a youth justice court to attach special conditions to a community service order. These special conditions may include one or more of the following conditions:

  • (a) the youth must attend school;
  • (b) the youth must attend educational, personal, health and other programs specified in the order;
  • (c) the youth must attend educational, personal, health and other programs as directed by the assigned youth justice worker;
  • (d) the youth must abstain from drinking alcohol;
  • (e) the youth must abstain from using controlled substances;
  • (f) the youth must, as directed by the Secretary, submit to testing for controlled substances or alcohol;
  • (g) the youth must reside at a specified address;
  • (h) the youth must not leave his or her place of residence between specified hours on specified days;
  • (i) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as specified in the order;
  • (j) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by the assigned youth justice worker.

This list is not exhaustive. The court may choose to impose other special conditions.

Community conferences

Community conferencing is the third tier of diverting youth away from the court and sentencing system. The rapid changes of adolescence and the tendencies for risk-taking behaviour that manifest in young people mean that the court system is often too slow, or formal to address the issues that underlie unlawful behaviour. Community conferencing is meant as both a restorative justice process and a means of rehabilitation, aiming for greater flexibility and responsiveness than the court system permits. The youth is encouraged to acknowledge responsibility and make reparation to the victim of the offence. Community conferencing is used around the world as a means of bringing youth into a community-based structure that allows for learning and growth from unlawful behaviour. It can reduce reoffending whilst promoting community ties with youth.

A youth may be diverted into the community conferencing system at the discretion of the police officer, as an alternative to formal cautioning, where the offence is considered too serious for informal cautioning. In order for this to happen, the youth must agree in writing to attend, and also to accept responsibility for their offending behaviour. Under forthcoming amendments, a youth may also be referred to community conferencing if they fail to substantially fulfill the undertakings of the caution.

Courts can also order community conferencing as a diversion from sentencing, but it is court-ordered, and takes the element of self-responsibility away from the youth. If a youth fails to fulfill undertakings agreed to at a community conference, the offence that triggered the conference may be dealt with by a court, and, if the youth is found guilty, the court can impose a sentence or order.

Community conference requests must first be made by the police officer to the Secretary of the DHHS (s13). The Secretary then appoints a facilitator to make contact with the necessary parties (s14). The Secretary must be provided with the names and addresses of the youth, his or her guardian/s, relatives who may be able to usefully participate in the conference, people with close associations with the youth, and the victim (s13) The facilitator may also invite any other person they believe may be able to usefully participate in the community conference. The victim is not obliged to attend; however if they do choose to attend, one or more support persons may accompany them. The young person is entitled to be accompanied by one support person.

Compliance with a community conference order and any undertakings arising from that conference will see the charge before the Court dismissed (s41) and the records of the court amended (s41(2)). Nevertheless, if the youth later appears before a youth justice court, the court may well refer to previous sanctions imposed by a community conference when determining an appropriate sentence for a subsequent offence (s47(4)(b)).

The following sanctions may be imposed at a community conference (s16):

  • administer a caution against further offending;
  • require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person because of the offence;
  • require the youth to enter into an undertaking to pay compensation for loss or destruction or damage to property;
  • require the youth to enter into an undertaking to make restitution of property;
  • require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service. Amendments will alter these provisions in the near future;
  • with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;
  • require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

An undertaking may have a duration not exceeding 12 months. If practical, the community conference should reach a decision on the sanctions to be imposed on the youth by consensus. The community conference is taken to have failed to reach a decision unless all the following persons agree to the imposition of the sanction:

  • the youth;
  • the police officer; and
  • if the victim is present at the conference, the victim.

Fines

Sections 57 to 64 of the Youth Justice Act cover fines. The court must not impose a fine in respect of a single offence that exceeds:

  • if the youth is less than 15 years old, 2 penalty units (2 x $13)) or the maximum fine, whichever is lower; or
  • if the youth is 15 or 16 years old, 5 penalty units (5 x $130) or the maximum fine, whichever is the lower, or
  • if the youth is 17 years old or more, the maximum fine.
  • The court must not impose fines in respect of two or more offences the total of which exceed:
  • if the youth is less than 15 years old, 5 penalty units or the total of the maximum fines for those offences, whichever is lower; or
  • if the youth is 15 or 16 years old, 10 penalty units or the total of the maximum fines for those offences, whichever is lower; or
  • if the youth is 17 years old or more, the total of the maximum fines for those offences.

The court must take into consideration the financial circumstances of the youth when determining the amount of a fine to be imposed on the youth if the youth is present before the court. The court may order that the fine be paid in installments.

If the youth has difficulty in paying the fine within the period required, they can apply for further time or an amendment to the order to pay the fine (section 60(1)).

If the youth fails to pay a fine, they may be summoned to appear in court and the following orders may be made:

  • amend the order so that the fine is paid by installments that the court considers appropriate;
  • order the youth to perform community service instead of paying the outstanding amount of the fine;
  • order the district registrar to take proceedings for the recovery of the outstanding amount of the fine;
  • revoke the order made under section 47 and make another order under that section in respect of the offence.

Deferral of Sentence

Deferral of sentence is a recent addition to the Youth Justice Act under sections 47(1)(j) and 56A – 56D. The thought behind deferred sentences is that as an alternative to incarceration, conducive to rehabilitation of a  young offender. A sentence can now be deferred for up to 12 months. In that 12 month period the court may have imposed conditions and requirements that the youth must meet, such as attending counselling or drug treatment. The court has a monthly review of the progress of the youth. If the conditions are being met satisfactorily, the review frequency may be decreased (section 56C) as a reward. Failure to comply may result in more frequent reviews or a revocation of the deferred sentence. If the youth does not respond to the conditions and review process intended for rehabilitation, the long term consequence is that at the end of the deferral period the court may sentence the youth to a period of imprisonment.

Supervised Release Order

Supervised release orders are the youth justice equivalent of parole. A sentence for a young offender always has a supervised release date of half the head sentence. Supervised release must take place at the earliest release date (section 109). 

Sentencing for Prescribed Offences

The sentencing options open to the magistrate for offences other than prescribed offences have already been discussed above. For prescribed offences that only the Supreme Court can deal with,  Supreme Court judges may either sentence under the Youth Justice Act (see below), or they may impose the same sort of sentences as they are empowered to impose on an adult, subject to the considerations that naturally follow upon the age of the offender.

The Supreme Court has the discretion (s 107Youth Justice Act) to sentence either under the Youth Justice Act or the Sentencing Act 1997. If a young person is sentenced to imprisonment under the Sentencing Act, they are usually detained at the Ashley Youth Detention Centre, rather than in prison as detention of a youth in an adult prison would violate the UN Convention on the Rights of the Child. Youths sentenced under the Sentencing Act and detained at Ashley are classified as Prisoners on Sentence rather than detainees.

If a youth pleads guilty to a prescribed offence which is a serious indictable offence, then depending on the particular offence, there often a choice (called ‘an election) whether to be sentenced in the Magistrates Court or in the Supreme Court. Legal advice should always be sought before electing to go to the Supreme Court rather than the Magistrates Court.

Victims of Crime

Introduction to Victims' Compensation

The scheme for Criminal Injuries Compensation is regulated by the Victims of Crime Assistance Act 1976 (Tas) (VOCA Act). The government makes payments to acknowledge the pain and suffering of a victim of crime, and compensate for loss of income or expenses that are the result of the criminal conduct. It is also possible to sue the person who committed the crime, if they have assets this is a possible option.

The procedure for applying for compensation and for the hearing of applications is administered through the Justice Department and is intended to be simple. It is in an applicant’s own interests to have legal representation. An application must contain prescribed information and has to be supported by a statutory declaration. Applications are available online or copies of the relevant forms can be obtained from the Victim’s Assistance Unit, Level 1, 54 Victoria St, Hobart.

An application should contain as much information as possible about the offence such as the date of the offence, the police station it was reported to, the name of the investigating officer, the name of the offender (if known), and how the crime has affected you, physically and psychologically.

The application is lodged with the Victim’s Assistance Unit. The applicant is asked if they wish to be represented at the hearing . The applicant can choose to attend the hearing or not, but it is in their best interest to attend the hearing. It will take up to four months for your application to be processed.

An application must be filed within three years of the injury or, in the case of a child, within three years of turning 18. An application for an extension of time is available, but it is not enough to just explain the delay or to state that the applicant was unaware of their right to claim until the three year period had expired. An extension of time may be granted where the a ‘special circumstance’ exists. This means ‘unusual’, ‘uncommon’ or ‘exceptional’. An example might be the resulting impact of the offence being the reason for the delay – this would mean that the physical or psychological harm of the offence.
 

Elements Necessary for Compensation

Nature of the Injury

The compensation is only for personal injury or loss – physical bodily or mental harm, pain and suffering, or an unwanted pregnancy resulting from rape. Property is not covered under the Act.

In addition to the applicant’s own evidence, the medical reports should disclose the nature of the applicant’s injuries, treatment and prognosis. The Commissioner will have regard to the physical and mental pain and suffering of the applicant, past and future. As with any assessment of damages, it is therefore important that anything having a material bearing on this should be canvassed in evidence.

It is important to have up-to-date medical reports. If the applicant’s injuries have not stabilised, it may be appropriate to ask the Commissioner to make an interim award and come back for a further award later (s5(6)VOCA Act).

Expenses

It is important to remember that the Commissioner can only allow expenses actually and reasonably incurred as a result of the injury (s4(3)(a)). The cost of a future operation cannot be allowed until it has been incurred. The production of receipts or accounts is usually regarded as sufficient proof of expenses.

Financial Loss

This will include loss of wages or salary, and any other loss caused by an incapacity for work arising from the injury. Proof is required of any such loss (s4(3)(b) &(c)).

Victim's Conduct Contributing to Injury

This is analogous to making a reduction in damages because of contributory negligence. But the conduct must in some way have contributed to the injury or death.

Adequate Civil Remedy

The applicant must satisfy the Commissioner that there is no adequate civil remedy against the offender (s5(4)). In most cases this will be the situation since offenders will be serving a sentence of imprisonment, will not have any substantial assets or income, and will be unemployed on their release. However, in some cases this may not be so, and the victim will have been expected to have taken all reasonable steps to take action against the offender where this is the case. This may also be in the interest of the victim because the upper limit of $30,000 will not apply, and they will have the chance to obtain more adequate compensation. Action must be taken within three years of the injury occurring.

Exclusions and Limitations

It is important to note in section 6 of the VOCA Act that:

  • no award of compensation can be made for any criminal conduct which occurred before 4 August 1976, which is the date on which the Act commenced.
  • no compensation can be awarded for death or injury where compensation is payable, under any law, by an employer in respect of such death or injury to any person in their employment resulting from an accident occurring in connection with that employment;
  • pain and suffering is still payable even if an offence occurred in employment and Workers’ Compensation has been paid
  • no compensation can be awarded in respect of death or injury caused by or arising out of the use of a motor vehicle as defined in the Traffic Act 1925;
  • compensation in respect of any destruction of, or damage to, property can only be awarded if such damage was suffered as a result of a person assisting a police officer.

The victim, the offender, and privacy

Compensation for Victims

There are three classes of victims under the VOCA Act primary, secondary and related victims. A primary victim may receive a maximum of $30,000; a secondary victim may receive a maximum of $20,000; and a related victim can receive a maximum of $10,000. Multiple claims by related victims in reference to the one incident can receive a maximum of $50,000. The amount to be awarded is decided at the sole discretion of the Commisioner.

A primary victim is the person who was the victim of the offence, such as the person who suffered psychological harm and needed counselling after an aggravated burglary. If there are two single occurrences of criminal conduct upon the same person, sufficiently separated in time, that person could be entitled to a maximum of $30,000 in respect of each occurrence.

An example of a related victim would be a widow who sees her husband murdered. She may claim as a related victim in respect of her own pain and suffering arising from the impairment of her mental health as a result of the criminal conduct. Since there is only one incident of criminal conduct and only one person entitled to an award, the maximum compensation would be $30,000.

But where, for example, one man, who is both a a husband and a father is murdered, each person who is a dependent, a parter and children, would be entitled to a maximum of $30,000.

A secondary victim is either a person who suffers injury as a result of witnessing an offence or a parent, step-parent or guardian of a primary victim who was under 18 years of age at the time of the offence (s2).

Compensation is payable for pain and suffering, for treatment (psychological or physical) for injury arising from the offence, and loss of wages or salary due to incapacity arising from the offence (s4). If there are outstanding fines, compensation levies, or penalties under the Sentencing Act, these amounts will be deducted from the compensation award before being paid to the applicant (s6B).

The Offender

The VOCA Act requires the Commissioner to make an order against the offender for the amount of compensation paid (s7A). This is collected as a fine against the offender by the Monetary Penalties Enforcement Unit. In most cases, the offender will thus become aware that the applicant has been awarded compensation. The offender has a right to apply to see the reports filed in relation to the application for compensation, and by which the Commissioner made the decision. This means that an offender, if so interested, can become aware of the impact of the offence on the victim.

Privacy

Applications for compensation are heard in private, and every effort is made to preserve the anonymity of applicants. Publication of proceedings is forbidden (s8). A report is forwarded to the Attorney-General each year with a resume of cases decided. No names or other means of identification are contained in these.

Sentencing

Where does sentencing law come from?

Sentencing law comes from two sources: statute and the common law. In Tasmania, the Sentencing Act 1997 (Tas) is the statutory source of law for Tasmanian offences committed by adults. Juveniles, in all but the most exceptional cases, are sentenced under the Youth Justice Act 1997 (Tas). Some common law principles apply in Tasmania, as the statute is silent on some points of law. The common law in sentencing applies in all Australian jurisdictions in as far as their sentencing legislation is silent. In Tasmania, this means that the ‘instinctive synthesis’ approach, parsimony, proportionality, double jeopardy, and retribution continue to be governed by the common law, and coexist with the Sentencing Act. These will be discussed in depth later.

The Sentencing Act and the Youth Justice Act both have common themes. Both of these Acts considers punishment and rehabilitation to be important, however, sentencing for adults tends to begin with denunciation and deterrence as the primary purposes whereas sentencing for juveniles, in all but the most exceptional cases, has the predominant purpose of rehabilitation and treatment as the starting point. Up until the age of 21 sentencing for youths also has rehabilitation as a dominant purpose, but the degree to which rehabilitation is considered for young offenders varies, depending on circumstances. 

Purposes and Considerations of Sentencing

Under section 3 of the Sentencing Act, a sentencing judge must consider the following purposes of sentencing in passing sentence:

  • Deterrence, of others and of the offender
  • Denunciation of the offence
  • Retribution – punishment
  • Protection of the community
  • Rehabilitation
  • The interests of the victim

In addition to these purposes of sentencing, in order to sentence a defendant, a court must consider a number of factors that go to the offence and the offender. These are called ‘aggravating and mitigating factors’. Mitigate means to make less severe. Aggravate means to make more severe. There are many mitigating and aggravating factors, and it is impossible to give an exhaustive list. However, included among the mitigating and aggravating factors will be:

  1. The nature of the crime – for example, was it a minor or major example of the offence type?
  2. The circumstances of the offender – for example, is the offender a first time offender?
  3.  Harm arising from the offence – for example, was a victim badly hurt?
  4. Circumstances around the trial – for example, a plea of guilty and cooperation with the police.
  5. Other aggravating or mitigating factors, such as no remorse, excessive violence in the commission of the offence, or attempts to make things right with the victim.

The combination of factors, and the weight they are given differs depending on the offence. For example, a person convicted of  ‘white collar crime’, such as fraud by an accountant or lawyer, will not receive as much leniency for previous good character as someone convicted of a first offence assault. This is because good character is, to an extent, an element of the means of offending. This is also true where sex offenders have used their position of trust or authority to exploit the dependent relationship of children or vulnerable adults placed in their care.

A plea of guilty is another example of where there is a wide range of difference in how mitigating the plea of guilty will be. A bare plea of guilty that is a simple ‘bowing to the inevitable’ will not attract as much mitigation as an early plea of guilty coupled with genuine remorse. A plea of guilty the day before the trial is set to begin will also not attract as much mitigation as an early plea because the plea will not have spared the courts or other parties, such as victims and witnesses, the difficulties of pre-trial preparation.

Proportionality, parsimony, and other limiting principles

The criminal justice system can only punish a person for acts they have committed, and to some extent take account of the harm they have done. In the process of sentencing it is possible for a judge to acknowledge the victim. This is why victim impact statements are a part of the court process – so that sentencing judges can acknowledge the victim, their suffering, and allow them a voice. But, the system is not there to magically fix everything, or to give voice to our desires for retribution, to see our pain or loss inflicted on an offender. The system sentences according to the rules:

Deterrence + Denunciation + Rehabilitation + Protection of the Community x (Offender + offence) = the appropriate punishment

The system is not there to represent the direct views of you or me. We may be part of it, we may be represented by it, but in the end, the system prosecutes and sentences because society as a whole must be protected by the system through sentences discouraging reoffending or rehabilitating individuals.

There are other aspects to criminal punishment that do make a person “pay” for their offence, particularly with offences that are the subject of general community disapproval. Child sex offences are particularly despised, and a person is stigmatised, both in prison and in the community. A child sex offender can never live down what they have done. While in prison, a child sex offender will fear for their life and physical safety. The reality of the punishment isn’t ‘they only got 3 years!’ It is 3 years of fear, loneliness, isolation, and hatred. It is 1095 days of misery. Before the sentence is even reached, an offender will likely suffer as much or more – rejection by friends, family and the community. The loss of everything – home, work, family. The criminal justice system doesn’t make this happen – people do. People seek their own justice, and they do it with fewer rules and safety checks than the criminal justice system.

The fact remains that some offenders will never accept the judgement of society. They will accept the consequences of being caught but not the condemnation. There is nothing we can do to change a person’s mind as to the wrong they have done.

This is why, with offences that stir the emotions of the public the focus needs to also be on the healing process for the victim. We can’t look to the criminal justice system to heal those affected by crime. Everyone wants to protect his or her loved ones from violence. But if violence happens, the punishment to the offender is unlikely to heal the wounds, because healing is not the aim of the criminal justice system – punishment to fit the crime is the aim of the system.

While you may read of people who say they feel cheated by the justice system because an offender has not been punished to the extent they desire, you have to consider that it is not the justice system’s place to mete out punishment according to how a few people feel about someone and what they did. A married couple lose their son in a tragic fight between the son and his best friend. The best friend and the son are drunk, and get into a drunken fight. The friend punches the son, who falls and dies several hours later. A foolish act ends in a tragic accident. The friend is deeply remorseful; he is plagued by the guilty of having killed his closest friend. The offence is uncharacteristic, he has given up drinking, and in all other ways is a good citizen. He receives a wholly suspended sentence. The parents feel cheated.

The criminal justice system requires a sentencing judge to assess the circumstances of the offender and the offence, and consider the purposes of sentencing in reaching a decision. The feelings of the parents are not a part of that equation. The criminal justice system has its own logic, its own means of assessing the penalty for an offence. 

What is a sentence?

A sentence is a punishment for a crime, any crime – from murder to drink driving. If a judge or a magistrate (“the court”) gives you the penalty it is a sentence. Fines, community service orders, probation orders – all of these are sentences, and the ability to hand down one of these sentences is contained in the Sentencing Act. Where someone receives a fine for drink driving or driving without a license, it can be a relatively easy process of sentencing, but the process of sentencing is not always an easy one. Crime is complicated and sentencing is complicated because of the nature of crime. The more serious the offence, the more serious the penalty – the deprivation of liberty through a sentence of imprisonment is the most serious penalty.

Under the Sentencing Act, there are a number of possible sentences or ‘sentencing orders’ (section 7). There is also an option to record a conviction or non-conviction (section 9). Sentencing orders can be combined (section 8). There is also the possibility of imposing a ‘global’ sentence, which means one sentence for many crimes without the need for the court to stipulate what each offence attracted as a penalty. Here are listed possible sentencing orders under section 7 of the Act, with explanations of the sentencing order:

  • A term of imprisonment with a maximum of 21 years in Tasmania
  • Wholly or partially suspended term of imprisonment
  • A drug treatment order
  • A community service order
  • A probation order
  • A fine

Terms of Imprisonment

While the maximum penalty for an offence is 21 years, there are exceptions. Where the offence is murder or treason, there is no maximum penalty. There are also orders called ‘dangerous criminal declarations’, which can be applied for by the Crown and permit indefinite detention. These are only granted in exceptional cases. A dangerous criminal order can only be made where the offender has been convicted for a crime involving violence, has at least one prior conviction for a crime involving violence, is over the age of 17 years, and the judge is of the opinion that the declaration is necessary for the protection of the public. The onus is on the party seeking the declaration. However, once the declaration is in place, the applicant must satisfy the court that the declaration is no longer warranted for the protection of the public. Mark ‘Chopper’ Reid was the subject of a dangerous criminal declaration. He also successfully applied for a discharge of the declaration. See Division 3, particularly sections 19 and 20.

Suspended sentences, while often viewed as a lighter option, can be reactivated if during the suspension period, a person is caught offending. Courts can make either a wholly suspended sentencing order, or a partially suspended order. Wholly suspended is usually for first time offenders.

Remissions

Remissions can apply for sentences over 3 months in length. The standard is generally: 

No remissions for sentences up to and including 3 months. However, for sentences over 3 months, remissions work out that for every 2 weeks served 1 week comes off after 3 months has gone past. But note, this is to a maximum of 3 months off. This is the maximum amount of time remitted by the courts.

3 months = no remission
6 months = 1 months remission to serve 5 months
9 months = 2 months remission to serve 7 months
12 months = 3 months remission to serve 9 months
 

Drug treatment orders

Drug treatment orders are restricted to offences that do not involve sexual offences or bodily harm that was not, in the court’s opinion, minor. They are a means of diversion from the justice system. A number of conditions have to be met. Firstly, that the offence was not sexual or occasioned more than minor bodily harm. Secondly, there is demonstrable history of illicit drug use and that drug use contributed to the commission of the imprisonable offence or offences. Thirdly, that the court would have sentenced the offender to a term of imprisonment if not for the making of a drug treatment order. In order to make a drug treatment order, the court must have received and considered a drug treatment order assessment report on the offender. On the offender’s part, the offender cannot be subject to a current sentencing order, parole order, or another drug treatment order. See Division 3A of the Sentencing Act. For conditions under which a Court may make a drug treatment order see section 27B.

Community Service Orders

Interestingly, Tasmania was the first jurisdiction in Australia to introduce community service orders. Once an alternative to imprisonment, they are now more generally available as an option in addition to imprisonment. Community service orders are not simply confined to the performance of unpaid work. Section 32 of the Sentencing Act takes account of probation officer directed attendance at educational or other programs as time performing community service hours (section 32). If a person breaches a condition of a community service order, the courts can cancel the order and resentence the offender as though just finding the offender guilty, increase the number of community service hours, or confirm the order as originally made. In determining how to deal with the offender, the court must take account of the extent to which the offender has complied with the order before committing the breach (section 36). See Part 4 of the Sentencing Act.

Probation Orders

Probation orders have a number of restrictive conditions that must be followed by an offender. Not least amongst these is the requirement not to commit an offence punishable by imprisonment. Reporting and supervision conditions apply, including notification of change of address or employment (section 37(1)). Other special conditions include:

  • Attendance at education or other programs
  • Assessment and treatment for drug or alcohol dependency
  • Testing for drug or alcohol use
  • Medical, psychological or psychiatric assessment or treatment (section 37(2))

The maximum length of a probation order is 3 years. If an offender breaches a probation order the order may be confirmed, varied in its special conditions, increased in its length, or resentence the offender as though just finding the offender guilty. As with community service orders, the extent to which the offender has complied with the probation order must be considered by the court in dealing with the breach.

Fines

Fines are measured in ‘penalty units’. A penalty unit for the 2014-15 financial year is set at $140. Previous years beginning in July 2010 was $130.

 

Sentencing Under the Youth Justice Act

Sentencing under the Youth Justice Act considers the same factors as the sentencing of adults, with the difference that sentencing of youth considers rehabilitation to be the overriding purpose of sentencing for youths (section 47(3A)). Youths are housed separately to adults, at the Ashley juvenile detention centre. The focus in youth justice is diversion away from the criminal justice system. There is a much broader context to this idea, and that includes enhancing and reinforcing relationships of youths to their guardians and/or families, and communities in order to effect rehabilitation. Consideration is to be had to background, cultural heritage, and the possibility of the youth providing redress. The nature of the offence is also considered, as well as age, previous sentences or sanctions imposed on the youth by a court or community conference, and the impact of any orders on the youth’s chances of finding or retaining employment or attending education and training (section 47(4)).

Only on rare occasions will a youth be sentenced as an adult. Such occasions usually concern the gravity of the offence, or habitual offending coupled with the age of the defendant at the time of conviction being above 18.

There is a difference between ‘youth’, as considered by the Youth Justice Act and ‘youth’ as considered by the Supreme Court in general sentencing considerations. Under the Youth Justice Act, youth is restricted to a person who is 10 or more years old but less than 18 years old at the time of offending. Youth as a general consideration in sentencing includes offenders up until the age of 21. The closer to 21, and the graver the offence, the less mitigating weight will be attributed to youth.

Diversionary Options

Diversionary options that are not available under the Sentencing Act for adult offenders are available under the Youth Justice Act. This includes informal cautions, formal cautions, deferred sentencing/adjournment, and community conferencing. Community conferences are a form of rehabilitative or transformative justice, that enables offenders and victims to meet, and for the offender to see the impact their offence has had on the victim.

Community Conferences

Community conferences consist of a facilitator, the youth, persons who are invited by the facilitator, the police officer who requested the conference, the victim of an offence, and a person or persons they choose to provide support and assistance. The youth is entitled to be accompanied by one person of their choosing to do the same. If a person is considered by the facilitator to be deliberately attempting to disrupt the conference the facilitator may require the person to leave, or ensure their departure if they refuse to leave (section 15). If a court orders a community conference (section 37), the attending police officer will likely be representative of the Commissioner of Police rather than the officer who required the conference (section 15(1)(d)). Community conferences have the power to administer a caution against further offending, require an undertaking to apologise, impose a maximum of 70 hours of community service if the youth is 13 or more years old, require an undertaking for compensation or restitution in terms of monetary value or restitution through work on offence-affected property (section 16). The power to impose community service hours is limited by any community service order currently in place, if the effect would be to exceed 70 hours community service in total for youths 13, 14 or 15 years old, or 210 hours for youths 16 or more years.

Sentencing options

The sentencing options for the Court are also broader than under the Sentencing Act. Under section 47 the Court can:

  • Dismiss the charge and impose no further sentence;
  • Dismiss the charge and reprimand the youth;
  • Dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
  • Release the youth and adjourn the proceedings on conditions;
  • Impose a fine;
  • Make a probation order;
  • Order that the youth perform community service;
  • Make a detention order;
  • Make an order it is permitted to make in accordance with section 161A;
  • in the case of a family violence offence, make a rehabilitation program order;
  • adjourn the proceedings, grant bail to the youth under the Bail Act 1994 and defer, in accordance with Division 7A, sentencing the youth until a date specified in the order

The court can also impose a number of orders, including:

  • A suspended detention order
  • A restitution order
  • A compensation order
  • Or any other order allowed under another Act in respect of which the youth committed an offence

Deferral of Sentencing

Deferred sentencing is a new option in Tasmania. The Court may defer for the purpose of:

  • assessing the youth’s capacity, and prospects, for rehabilitation
  • allowing the youth to demonstrate that rehabilitation has taken place
  • assessing the youth's capacity, and prospects, for participating in an intervention plan
  • allowing the youth to participate in an intervention plan
  • any other purpose the Court thinks appropriate in the circumstances.

Who is an offender?

Most crimes are committed by males between the ages of 15 and 25. Some offences are more prevalent among certain classes. For example, older, white males most often commit corporate offences, just as men commit most crimes of interpersonal violence from lower socio-economic classes. This doesn’t hold true for domestic or sexual crimes, where there is a fairly even distribution across social and economic classes.  In many ways those we consider to be offenders are those who have gone to prison. Nelson Mandela was imprisoned for 27 years, and went on to lead a nation, so it is not necessarily always a negative stigma. For sentencing purposes, an offender is someone who is subject to a sentencing order, be it a fine, or a term of imprisonment. If you have ever appeared in a Magistrates Court for a driving offence, you are an offender. 

How does the court reach a decision?

The sentencing process

Prosecution Submissions

The prosecution submits agreed facts, and makes submissions on the aggravating and mitigating factors of the offence. It is not the role of the prosecution to seek the harshest penalty possible, but to present a view of the offence. The prosecution can discuss the sentencing range within which the offence falls, for example – low, mid or high range offending. 

The Plea in Mitigation

The plea in mitigation is a statement that the defence lawyer can submit to the court that tells the court about the offender’s circumstances. Particularly relevant in a plea in mitigation will be remorse. Other factors include the impact on the victim of community retribution, loss of employment, status, and attempts at rehabilitation. The combination of factors is diverse, depending on both the offender and the offence.

The Sentencing Decision

The court reaches a decision based on available information and hands down the decision in a ‘Comment on Passing Sentence’. These ‘COPS’ are readily accessible through the Supreme Court website as far back as 2008. Earlier sentences can be accessed in the University of Tasmania law library, or by contacting the Andrew Inglis Clark library at the Supreme Court. 

Sentencing Process

Prosecution Submissions

The prosecution submits agreed facts, and makes submissions on the aggravating and mitigating factors of the offence. It is not the role of the prosecution to seek the harshest penalty possible, but to present a view of the offence. The prosecution can discuss the sentencing range within which the offence falls, for example – low, mid or high range offending. 

The Plea in Mitigation

The plea in mitigation is a statement that the defence lawyer can submit to the court that tells the court about the offender’s circumstances. Particularly relevant in a plea in mitigation will be remorse. Other factors include the impact on the victim of community retribution, loss of employment, status, and attempts at rehabilitation. The combination of factors is diverse, depending on both the offender and the offence.

The Sentencing Decision

The court reaches a decision based on available information and hands down the decision in a ‘Comment on Passing Sentence’. These ‘COPS’ are readily accessible through the Supreme Court website as far back as 2008. Earlier sentences can be accessed in the University of Tasmania law library, or by contacting the Andrew Inglis Clark library at the Supreme Court. 

To punish or not to punish?

Under the Sentencing Act 1997, courts must consider several primary purposes of sentencing. On the one hand we have retribution, denunciation, and deterrence, and on the other hand we have rehabilitation. Overarching all of these purposes is protection of the community, because all of these purposes must in some way further the protection of the community, and as an important but not central consideration are the interests of victims.

While retribution, denunciation and deterrence are all important considerations in sentencing an adult, in practice, sentencing judges have a wide discretion, which, depending on the circumstances, may see the courts place rehabilitation as an important sentencing consideration. The nature or character of the offender and the offence may influence the court to suspend a sentence, or not record a conviction, or simply impose a fine, because the rehabilitation and reintegration of the offender back into society is more important than punishment. All of this is highly circumstantial, and cannot be quantified. A sentencing judge does not take one pinch of deterrence, two pinches of denunciation, and half a spoon of rehabilitation. The process of ‘instinctive synthesis’ cannot be quantified, but the sentencing comments provided by a sentencing judge can qualify the reasoning behind the decision, and will often mention the purposes of sentencing that were taken into account in sentencing, as well as the circumstances of the offence and the offender.

To punish or not to punish?

Public opinion is often sought on the subject of whether sentences for crimes are satisfactory. The answer is often no. The media representation of crime is that the system fails to punish offenders for wrongdoing. Crime and punishment is not this simple. A court will consider a range of factors in sentencing, and there are principles that govern sentencing, just as gravity governs the way we stick to the surface of the planet, there are certain principles of sentencing that must be applied. These principles prevent a sentence being “crushing” on an offender, or ensure that the punishment fits the crime, according to all considerations of sentencing. But punishment and retribution are not the only considerations that a judge must take into account.

Often, people are simply unaware of the types of sentences that are handed down on offenders, in particular sex offenders and violent offenders. They think ‘oh, well the media shows so much crime happening, criminals must not be punished hard enough to prevent them and others from offending.’ The truth is that criminal behaviour is often more complex than a simple predisposition to crime, the ‘us and them’ view is not accurate at all.

Similarly, people are often unaware of the fact that prison has a known criminogenic effect – this means that imprisonment is more likely than other sentencing options to encourage continuing criminal behaviour. This is why, while in prison, some prisoners can participate in programs for rehabilitation, learn new skills, and gain an education – in order to send back into the community men and women who can reintegrate and not want to offend again.

The question is: once you’ve punished someone, what do you do with him or her? The answer is – reintegrate them into the community.

Factors for consideration

A quick look at mitigating and aggravating factors

Some mitigating factors

  • A plea of guilty; the earlier in the process the better
  • Cooperation with police / prosecution
  • Confession and/or coming forward
  • Remorse
  • Attempts at rehabilitation on the part of the defendant; reformed character
  • If a financial crime, attempts to restore the damage or loss

Some aggravating factors

  • Excessive force
  • Financial gain in non-financial offences (e.g. child pornography)
  • Abuse of trust
  • Attempting to prevent the complaint being heard
  • Persisted in offending despite police intervention
  • Racial motivation
  • Victim impact
  • Persistence in committing offences
  • Use of a weapon
  • Committing offences while on bail, particularly for similar offences

Aggravating Factors

When courts are considering a sentence they will often refer to aggravating factors. Aggravating factors depend on the type of crime, but a consistent aggravating factor is the harm to the victim. So, for example, if a person commits an armed robbery and they terrorise a bank teller who then suffers from posttraumatic stress disorder as a consequence of the offender’s behaviour, the court will take this into account as an aggravating factor. Conversely, if an armed robbery is carried out with a minimal amount of violence, it will be seen as an offence at the lower end of the range, and there will be less aggravating factors. Violence, particularly excessive violence, a breach of trust, the use of a position of power, harm to victims, premeditation, where the conduct occurred over a long period of time, and the extent of financial harm if the offence is a financial crime. Other factors to consider will be degree of participation, provocation, motive, and intention.

Mitigating Factors

Two key factors are mitigating: remorse and a guilty plea. Remorse must be genuine, and courts will sometimes discuss whether remorse is genuine. Courts will also discuss the point in time at which a person pleaded guilty. If an offender made early and full confessions and a plea of guilty, this is a substantially mitigatory factor. If an offender made pleas of guilty before the trial as a mere ‘acceptance of the inevitable’ this will have far less weight in mitigation than an early plea of guilty with genuine remorse. Cooperation with the authorities is also a factor in mitigation. One sex offence case only came to light because of the confession of the offender. This was taken as a factor in mitigation by the sentencing judge (see JTM, 9 December 2010). Other characteristics of the perpetrator that the court takes into account include youth, extreme age, ill health, remorse, awareness of wrongdoing, and cooperation with the police.

Examples of sentencing

The nature of the offence and the offender: mitigation and aggravation

A young man commits the offence of burglary, and steals $4,000 from a business.[1] 8 years later DNA evidence links him to the offence. He committed a number of offences of dishonesty around the same time, but since then has turned his life around considerably, volunteering his time in the community and seeking work. He has committed no further crimes in the 8 years since the offence. He pleads guilty. He cooperates with police. He feels remorse for his younger self, and as an older man wants to move on and contribute to the community. The court gives him a 12 month wholly suspended sentence, with a 24-month (2 year) good behaviour bond.

What did the court take into account?

  1. The crime is historical – it happened 8 years ago
  2. The remorse and the plea of guilty
  3. The significant change in behaviour of the defendant, and the length of that change
  4. His contributions to and place in the community

But, we can take the same factors that the court took into account as mitigating factors for this defendant – the age of the crime, expressions of remorse, the contributions to the community and the self-improvement of the defendant, and the plea of guilty and they will not be mitigating factors for a different offence. This is not to say that the absence of remorse is aggravating, remorse is a mitigating factor but the absence of remorse is not aggravating. It is just that different offences have different elements, and a sexual offence for example, that uses status in the community and the shame surrounding sex to conceal the offence for many years, will not have those same elements of community standing and the lapse of time as mitigating factors.

Example 2

The second example is of a man who was 83 years old at the time of sentencing.[2] His offending began in 1957. Most of his offending occurred during the 1970s to the 1990s. The offences occurred against eight boys. He was a public servant, and was a Court Registrar for many years. He occupied a position of trust that meant that the parents of the boys, aged between 9 and 13 years old, trusted them with their children when he took them out on his yacht or taught them woodworking. Although the court did not take his lack of remorse as aggravating, there was no mitigation based on remorse. Moreover, his respected status in the community could not contribute to a lessened sentence, as it was the means by which he committed the offences. The additional factors the sentencing judge had to consider were the health problems/age of the defendant. The defendant was sentenced to five and a half years imprisonment, reduced from seven years because the defendant only had a life expectancy of 6 years. The non-parole period was four and half years. Let us compare the considerations that were important in the first example.

  1. The crimes were historical – not of significance here in mitigation, as the harm to victims is often lifelong, and the nature of abuse of children is often that the crimes are concealed for long periods of time; to mitigate because of the passage of time would be to undermine the interests of victims
  2. there was no remorse and no plea of guilty – neither are aggravating in their absence, but without either there is no mitigation.
  3. The length of time over which offending occurred and the acts against many of the boys were not isolated acts, and there were many victims – he was at risk of offending again, so there was no change in his behaviour
  4. His contributions to and status in the community were a means of accessing his victims and of shielding himself from discovery

The only factor that the judge took into account in reducing the sentence was that the defendant was near the end of his life. As you can see, different crimes will mean different factors are important as mitigating or aggravating considerations. There was very little in mitigation for the second case, and the factors that had been important in the first case were not of importance to the outcome of the sentence in the last case.

Some factors are always aggravating – the use of violence is always aggravating, just as cooperation and an early plea of guilty are always mitigating.

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[1] Tasmania v Shane Vivian Smith, Underwood CJ, 20 February 2008 (Sentence).

[2] State of Tasmania v James Robert Eaton, Blow J, 4 June 2008 (Sentence).

Crimes and Punishments

Murder and Manslaughter

The range for murder for the period 1996 – 2000 ranged from 10 years to life. The Criminal Code uses the words ‘for the term of the person’s natural life’. From 1990 – 2000, there were 23 attempted murders. 1 offence received a sentence of 3-4 years imprisonment, 1 of 8-10 years, and 21 10 years or more. The data excluded Martin Bryant’s twenty 21-year sentences, and shows the maximum sentence as 10 years. 21 of the 23 attempted murders were Martin Bryant. There were 100% custodial sentences imposed.

Manslaughter in the 1990-2000 period amounted to a total of 26 counts. The minimum sentence was 9 months, and the maximum was 10 years. There were 100% custodial sentences imposed.

Death by Dangerous Driving

The good news is that compared to the 1978-1989 period, where 30 offences were recorded, in the 1990-2000 period, only 14 DDD offences were recorded. The minimum sentence was 6 months and the maximum was 2 years. This may have increased significantly in the 2000-2010 period, considering public opinion and perceived prevalence and seriousness of the offence.

Sex Offences

Single counts of rape in the 1990-2000 period totalled 27. The minimum sentence was 6 months and the maximum sentence was 8 years. The custodial percentage is not available.

Sexual intercourse with a young person totalled 12 single counts in the 1990-2000 period, with a minimum of 2 months and a maximum of 12 months.

Aggravated sexual assault in this period was recorded as 1, 2, 3-4, 5-9 and 10 or more counts. For one count, the custodial percentage was 91% with a minimum of 2 months and a maximum of 18 months. For 10 or more counts, the custodial percentage was 100%, with a minimum of 12 months and a maximum of 5 years. The total number of cases was 42.

A single count of indecent assault in1990-2000 attracted an 87% custodial rate, with a minimum of 1 mount and a maximum of 12 months. There were 41 cases.

Incest had a total number of 16 cases varying between 7 cases of 1 count, 3 of 2 counts, 4 of 3-4 counts, and 2 of 5+ counts of incest. The minimum for 1 count was 4 months, and for 5+ counts, 15 months. The maximum for 1 count was 2 years and for 5+, 5 years. The custodial percentages were 78% for 1 count and 100% for 5 or more.

Maintaining a sexual relationship with a young person was introduced as an offence in 1994. The data for the 1995-2000 period indicates a total of 21 cases, 15 of 1 count, 4 of 2 counts, and 2 of 5+ counts. The minimum sentence for 1 count of maintaining was 3 months, and the maximum 5 years. For 5+ counts, the minimum was 3 years and the maximum 5 years. The variation with maintaining arises from the multitude of circumstances in which maintaining offences arise. This can include a 19 year old with a 16 year old in an ostensibly consensual relationship to situations where a much older, trusted figure, often familial, abuses their position of trust to assault unconsenting young children or teenagers.

Violent Crimes

For one count of GBH in the 1990-2000 period, the maximum imposed sentence was 5 years, the minimum was 4 months, and there were 33 offences in total. The custodial percentage was 97%. For wounding, the total number of offences was 63, the minimum sentence was 1 month and the maximum 2 years. The custodial percentage was 84%.

Aggravated assault in the 1990-2000 period was a total of 24 single counts, with a minimum of 1 month’s imprisonment and a maximum of 12 months. Single counts of assault in the 1990-2000 period totalled 179, receiving 14 days minimum sentence, and 18 months maximum with a custodial percentage of 78%.

Robbery

Aggravated armed robbery statistics in the 1990-2000 period consisted of 79 cases, in which the minimum was 3 months imprisonment and the maximum 5 years. The custodial percentage was 98%.

For armed robbery, there were 101 cases, with a minimum of 3 months and a maximum of 8 years with a custodial percentage of 94%.

Aggravated robbery attracted an 83% custodial percentage on 45 cases, with a minimum of 3 months and a maximum of 5 years. Robbery, with 50 cases, had a minimum of 1 month and a maximum of 2 years and 6 months, with a 93% custodial rate.

Crimes of Dishonesty

One count of stealing in the 1990-2000 period constituted a total of 85 cases, with a minimum of 1 month imprisonment and a maximum of 2 years, 8 months. Where there more than one count, the maximum was 6 years, where there were upwards of 21 counts. The median for one count was 6 months, and for more than one count in total the median sentence was 12 months.

Acquiring a financial advantage received a custodial rate of 88% in the same period. Single count cases were a total of 36, while the maximum was 18 months and the minimum 2 weeks imprisonment. The median was 9 months.

Receiving, in this period totalled 55 cases, with a minimum of 1 month and a maximum of 18 months. The median was 4 months.

There were 33 cases of one count of burglary and stealing in the 1994-2000 period. The minimum sentence was 1 month’s imprisonment, the median was 4 months, and the maximum was 12 months, with a 73% custodial rate.

Aggravated burglary in the same 1994-2000 period amounted to 13 cases involving one count, with a minimum sentence of 3 months’ imprisonment, a median of 12 months and a maximum of 2 years 6 month. The custodial percentage was 86 per cent.

Restraint or restraining orders

Section 106B of the Justices Act 1959 provides for the application for and approval process of restraint orders. There are four categories of people who may apply for a restraint order: police officers, a person against whom behaviour was directed, or who is a parent or guardian of a child against who behaviour was directed; a guardian or administrator under the Guardianship and Administration Act 1995, or a person granted leave to apply.

An application for a restraint order is made to the Magistrates Court, and the matter is heard and determined (decided) by a Magistrate. The application form is a 48a form and is available on the Magistrates Court website, which also provides advice on Restraint Orders for all parties involved. The Magistrates Court site provides valuable information for both the person applying for the order (the applicant) and the person against who the order is being sought (the respondent).

Behaviour liable to a restraint order

There are four categories of behaviour in a person that may give rise to a restraint order against them:

1. A person has caused person injury or damage to property and that person, without the restraint order in place is likely to cause damage or harm again.

2. A person has threatened to cause personal injury or damage to property and that person, without the restraint order in place is likely to carry out that threat.

3. A person has behaved in a provocative or offensive manner, this behaviour being likely to lead to a breach of the peace, and without the restraint order in place is likely to behave in such a manner or similar manner again.

4. A person has stalked the applicant, or the person whose benefit the application is made, or has stalked a third person, causing the applicant/beneficiary of the restraint order to feel apprehension or fear.

The Magistrate must be satisfied on the balance of probabilities of the existence of the harm, threat, stalking or behaviour. The balance of probabilities is a lower standard of proof than that of beyond reasonable doubt, the criminal standard of proof when a court considers guilt or innocence.

 

There are two types of restraint order - interim (temporary) and final orders. Interim orders are available where there is a sense of urgency in protecting the applicant or beneficiary of the order from the conduct of the person against whom the order is sought. The difference between interim and final orders is that interim orders can be made before the respondent is notified of the application, meaning that they may be in breach of the order without knowing it. Respondents are notified as soon as possible, and interim orders usually only last until the next stage of the hearing process for the final orders to be made.

A further resource to the excellent resources on Restraint orders on the Magistrates Court website, is the Women's Legal Service fact sheet on restraint orders. If you are considering a restraint order please contact the Tasmania Police and seek legal advice.

Public opinion and sentencing

Don’t believe everything you read, hear or see in the media about crime. Stories of crime, graphic physical or sexual violence, violations of privacy and home security are all far more likely to move newspapers or magazines than the stories that statistics tell: crime is not increasing, humans are no more brutal with each passing year than they were the year before, rehabilitation decreases criminal behaviour, and courts are not letting criminals roam the streets just for fun.

There are isolated incidents where shocking crimes happen because a person has been released from imprisonment – the rape and murder of Jill Meagher in Victoria is a recent and tragic example. But, overall, the types of crime of which we are afraid – violence to the person or a violation of our privacy and belongings by a stranger, happen very infrequently.

The criminal justice system is not in place to sentence a person to transportation for life because they stole a lace handkerchief, or stole your television. Nor is it meant to keep people locked up forever just because they are difficult people for most people to like. The criminal justice system is in place to give just punishment, and provide opportunities in prison to rehabilitate, in the hopes that it will prevent further offending. Unjust penalties are likely to cause more crime. Wouldn’t an unjust penalty make you feel badly treated, and less likely to fall into line with whoever punished you?

The ideas that underpinned old systems of punishment have given way to new theories, and new ideas about how to prevent crime. The criminal justice system is meant to deliver justice tempered with mercy. And in sentencing, a judge will take into account the circumstances of the offence and the offender to decide a fitting punishment. Sometimes, rehabilitation will be a significant factor, other times retribution will be the primary focus.

Generally, there is a low recidivism rate amongst offenders. Obviously, this is not always the case. Some people will always want to reoffend, or circumstances will bring about a high chance of reoffending. Some reoffending, such as theft or petty crimes, even family violence – result in suspended penalties, fines, community service orders, in an attempt to keep low-level offenders out of the criminal justice system. But some reoffending is of such a nature and magnitude that the State cannot risk reintroducing the offender into the community. This is why Tasmania, and most other Australian States and Territories, have dangerous criminal legislation, which allows for the ongoing detention of offenders who show no sign of rehabilitation or reintegration and continue to pose a threat to the community.

For most other offenders, ongoing detention is not going to be fair. It is easy to class someone according to the crime – ‘oh, he is a rapist’ or ‘she is a murderer’ or ‘he is a drug dealer’. But the fact is that very few people convicted of a serious offence go on to reoffend. Reoffending, otherwise known as ‘recidivism’ is only a low percentage – sometimes as low as 3 per cent of offenders.

When talking about habitual criminals it is easy to say ‘we should lock them up and throw away the key!’ Well, the fact is that there are some habitual offenders who have been “locked up” indefinitely. But in Tasmania, with a population of a half million there are only 6 dangerous offenders. Nearly all of these are sex offenders.

The ideals of liberty, justice and reason require our criminal justice system to treat people fairly; a person cannot be sentenced to a punishment that does not fit the crime. But, at a point, the liberty of that one individual becomes less important than the liberty of the community and the interests of the state in imposing law and order – this is where dangerous offender legislation becomes important and people may be locked up indefinitely (although we do not throw away the key). We will discuss “dangerous offenders” later.

The point that this section is trying to make is this: don’t be fooled by the idea that “criminals” need to be harshly punished to deter them. The harshness of the penalty has no real relationship with deterring offending. A recent European report found no correlation between decreases in crime rates and punitiveness across the Western world. America and Switzerland, Australia and the Netherlands all had a similar decrease in crime despite huge differences in approach to punishing criminal acts.

Nor are “criminals” so different from you and me. Have you jay walked? Have you driven above the speed limit? Have you thought you could drive home with that one drink under your belt? Have you accidentally left a shop with an item but never returned to pay for it? Have you ever had an argument that ended with a physical confrontation? Everyone commits a criminal offence at one time or another. Some people just make bigger mistakes, or make worse decisions. But they are still people, and our society must continue to treat them as people.

A factor that is easy to forget when we are considering punishment for crime is the stress and mental anguish that the trial and court process can cause to defendants. If a young man commits an out of character violent offence, is sincerely remorseful, pleaded guilty at the earliest stage, and has a bright future of service to his country ahead of him, should a Court consider retribution above his capacity to be rehabilitated by a court’s leniency? For some people, particularly first offenders who have committed a one-off, out-of-character offence, exposure to the criminal justice system is enough of deterrence.

The tough question: what if it just doesn’t seem enough?

There are some crimes that are very difficult to approach without deep emotional response, particularly crimes against children. Crimes like these make people ask what the criminal justice system really does to punish someone – to bring justice.

If a man sexually assaults his daughter from when she is just a five year old girl until she is old enough to tell him that she’ll kill him if he ever touches her again, what can the criminal justice system really do to make that father pay for the harm he has done to his daughter. The answer will vary, depending on your perspective. The system can never really make an offender pay for that harm. Justice cannot reach so far as to heal the wounds that are caused by the type of interpersonal crime such as the rape of a child. Whatever the justice system does to an offender, it cannot take away what that person has done. In some ways, justice can never be done for certain types of offence, particularly interpersonal crime, such as domestic violence, assault, rape, robbery, murder.

Why can’t the criminal justice system make a person “pay” in terms of an eye for an eye? It is because the system can only punish according to the system, and that system has principles that guide the penalties that can be imposed. Imprisonment, fines, community service orders, rehabilitation, probation orders – all of these can take time or money from an offender, but can also be oriented toward preventing more crime.

Contrary to what you may believe, many offenders are remorseful for their crimes. Many offenders feel shame or guilt, and do not go on to reoffend. Nor is offending simply because a person is a bad person. Many social, economic and personal factors can contribute to offending behaviour, including mental illness. How the justice system responds represents how we as a society respond, and if the justice system responded with an eye for an eye then we would be committing the same acts, but simply calling it by a different name. The system would perpetrate criminal acts for the purpose of “Justice”. There may never be punishment enough for some offences, but we cannot exact a price from another human being for vengeance. Justice and vengeance are not the same.

Parole and Probation

Contrary to popular belief, most offenders do not reoffend. Recidivism rates depend on the offence and category within the offence group, whether the offender is a first time offender, or a repeat offender already, and also the age of the offender. Of course, recidivism data is not entirely reliable, because some offences go undetected or unreported and recidivism data is based either on reconviction or rearrest rates. Self-reporting of reoffending is also unreliable as some self-reporters may exaggerate, or misrepresent their reoffending in other ways.

Parole is the release of the offender from custody, with a set of conditions, after having served less than their full sentence, but having served their minimum non-parole period or longer. 

Sentencing Policy

Federal and State similarities

If you are convicted of a federal offence, that is – an offence created by Commonwealth statute, you will be sentenced under the federal Crimes Act, which contains sentencing principles of federal offences.

State based offences, traffic offences, interpersonal violence (assaults), domestic violence, sex offences, and most other offences you can think of, will fall under the Sentencing Act 1997 (Tas).

Sentencing Advisory Council

The Tasmanian Sentencing Advisory Council is a Tasmanian body that advises the Tasmanian Attorney-General on sentencing issues. To date, the Council has published Advice on sentencing issues around assaults on emergency workers and arson. These reports resulted in changes to legislation.

Currently, the Sentencing Advisory Council is working on four projects – sex offence sentencing, family violence sentencing, a Tasmanian sentencing database and the impact of conviction/non-conviction.

On the Council are several eminent academics and members of the criminal justice system, including Emeritus Professor Arie Freiberg OAM, Professor Kate Warner OAM, author of the seminal textbook on sentencing in Tasmania, Sentencing in Tasmania and Professor Rob White, author of Crimes Against Nature, a textbook on environmental crime. Other members of the Council are distinguished members of the Police Service, the Office of Public Prosecutions, and the Tasmanian legal community.

There are Sentencing Advisory Councils in Victoria and NSW; the Council in Queensland was dissolved. There is also a sentencing council in the UK, which has responsibility for providing sentencing guidelines for UK courts.

Resources

Tasmanian Sentencing Advisory Council: http://www.sentencingcouncil.tas.gov.au/

Kate Warner, Sentencing in Tasmania 2nd edn, Federation Press 2002 Annandale

An excellent online resource is the Comments on Passing Sentence database: http://catalogues.lawlibrary.tas.gov.au/textbase/SentSearch.htm 

Prison and Prisoners

Effect of Criminal Conviction

What Records are Kept?

The police department has an Information Bureau which records all court appearances, arrests and convictions for offenders 14 years and over, and for juvenile offenders under 14 years. These include traffic convictions.

Separate records are kept of juvenile offenders by the Information Bureau and the Department of Health and Human Services.

How Long are the Records Kept?

The information on a person's criminal history remains permanently on record. However, if a charge is dismissed, this charge will not appear on the criminal record, although it does appear on the record of convictions provided to a Court when a person appaears before it, and fingerprints will be destroyed automatically if there are no other criminal convictions.

Disclosure of Criminal Records

The Commissioner of Police is only permitted to release information of a person's criminal record on the request of a police officer or to a person or their lawyer in very limited situations, at the discretion of the Police Commissioner, to authorised public bodies (Education Department, Justice Department).

Upon such a request in writing, the Information Bureau normally releases a summary of the criminal record. Employers and volunteer organisations are increasingly requesting a copy of the criminal record of candidates. The organisation usually provides a request form for the candidate in order to request a copy of their record.

Disabilities Resulting from Conviction

In addition to whatever sentence is imposed for an offence, the offender will generally suffer further disabilities as a result of the conviction. The relevance of a conviction may reduce as time passes and the Anti-Discrimination Act 1998 (Tas) (s16(q)) prohibits discrimination on the grounds of irrelevant criminal convictions. The following are disabilities of certain convictions:

  • Voting. Whilst serving a sentence of imprisonment for one year or longer, a person loses their voting rights.
  • Offences committed by migrants. An immigrant who has been sentenced to more than 1 year's imprisonment and who has been in Australia for less than 10 years may be deported.

Employment in the Public Sector

A criminal conviction may affect a person's ability to obtain or retain employment in the public service.

Licensing/Registration

Many professions require that a person be licensed (e.g. auctioneers, travel agents, builders, motor dealers) or registered (e.g. medical practitioners, nurses, dentists, opticians). The person to be licensed must generally be either ‘of good fame or character’ or ‘a fit and proper person to hold a licence’, depending on the wording of the relevant Act. The appropriate registration board may refuse to register a person who has been convicted of a crime or a misdemeanour. It may revoke the registration of a person who has been convicted of such an offence or who is not ‘of good character’.

Restitution of Property

A convicted person can be ordered under the Justices Act 1959 (Tas) or Criminal Code or Sentencing Act 1997 (Tas) to:

  • make restitution of property;
  • pay costs;
  • pay an award of damages arising out of the commission of the crime.

Other Disabilities

Having a criminal conviction may affect a person's chances of obtaining insurance on property.

Prisoners and People in Custody

Classification of Prisoners

The Director of Corrective Services to establish a Classification Committee for the purpose of classifying prisoners. Prisoners are classified according to their age, character, offence, previous history and sentence.

The major principle when classifying inmates is that they be placed on the lowest level of security for which they qualify, taking into account the needs of the individual inmate while at the same time ensuring their safe custody. Most inmates are initially classified as maximum security on entry into custody. Some, such as fine defaulters, who are obviously not a security risk can be classified medium or minimum. Inmates are reclassified as soon as practicable after being sentenced when they may be reduced to a lower level of security or remain at maximum. They are reconsidered at intervals of approximately 6 months or earlier on application.

Classification Committee (‘Classo’)

The Classification Committee will decide on the prisoners classification. There are three levels of security. The following are the minimum standards of management which apply to each level. In many circumstances the degree of supervision and control will be higher than that set out below.

Maximum

Inmates in this category are subject to high levels of supervision in an environment which provides for direct and coercive intervention, if required, to maintain safety, security and good order. They are detained within substantial barriers except when under escort by two officers.

Medium

Inmates in this category are locked in cells at night. During the day when on prison property, they must be sighted by an officer at intervals not exceeding 30 minutes. When off the property they must be under ‘line of sight’ supervision.

Minimum

Inmates in this category are locked in cells at night. During the day they are required to be subject to occasional supervision and are required to work in specific locations. They are required to report to a designated place at designated times.

Categories of People in Custody

Detainees

A detainee is a person detained in lawful custody other than under a sentence of imprisonment, irrespective of the cause of imprisonment. Detainees come within a range of categories.

Persons Arrested

Once arrested, a person can be held in custody. In Tasmania, police officers usually have the right to grant bail to a person without having to bring such person before a justice of the peace or a magistrate. In relatively minor cases, this is usually done. However, in more serious cases, and where there has been an arrest, or an arrest on warrant, the police will not themselves grant bail. In such cases they are required to bring the person before a Magistrates Court "as soon as practicable” (s4Criminal Law (Detention and Interrogation) Act 1995 (Tas)).

During this period, before either police bail, or the court appearance, a person is held in custody (usually at the police station cells) as a detainee. Provision is made for a Magistrates Court to be held on a weekend in the major centres, to deal with detainees, though the court can sit at any time if need be.

Persons Remanded in Custody Pending Trial

Persons are quite often refused bail during the period awaiting trial. Persons on very serious offences such as murder fall into this category. Others may be refused bail because they have failed to turn up at court to answer their bail on a previous occasion, breached their bail conditions or are believed to be likely to re-offend while on bail. Such persons are required to appear before the court at least once every 28 days (ss58(2) & 74B(2)Justices Act 1959 (Tas)).

Persons Remanded Pending Sentence

In many instances, once a person has been convicted, the court may remand a person in custody whilst the question of penalty is considered, and where necessary, probation or psychiatric reports are obtained. The period is usually for several weeks. During that period, a person is held on remand as a detainee.

Persons Subject to Extradition or Deportation

Persons can be detained while awaiting proceedings for their extradition to another state or a foreign country to answer to charges there, or for their deportation if they are illegally in Australia.

Mentally Ill Prisoners

Persons found unfit (by reason of a mental condition) to plead, or who have been found not guilty by reason of a mental disorder, are detained (within Wilfred Lopes Centre) pending a decision of the Attorney-General as to any transfer to another institution, or to continued detention within the prison complex. The Wilfred Lopes Centre and the Women's Prison are Special Institutions under the Mental Health Act 1996 (Tas).

Children

Under the Youth Justice Act 1997 (Tas) persons under the age of 18 can be detained in prison, but usually are remanded into the care of the Director of the Department of Health and Human Services, and kept at ‘Ashley’, an institution operated by the Department near Deloraine. A person under 18 can only be detained in an adult prison with a special court order on the grounds of exceptional security requirements.

Provision is made under the Corrections Act 1997 (Tas) (s25) to allow a prisoner’s child to live with the prisoner in prison provided it is in the best interest of the child and it does not pose a risk to the child or security of the prison. This rarely occurs in practice.

General

Male detainees are kept in the Hobart Remand Centre, which is a separate complex next to the Magistrates Court in Liverpool Street Hobart, unless the detainee requests to be transferred to Risdon. There are no separate facilities for detainees within the Women’s Prison because of the small number involved.

A detainee is not required to wear prison clothing unless they desire to do so. A detainee is not required to work but may request to be so permitted. In such a case the person shall wear prison clothing (s29(d)) which is suitable for the climate and work undertaken. They are then entitled to receive earnings for work and to participate in prison programs. A detainee may be allowed to spend money belonging to them for purposes approved by the prison.

Prisoners

A prisoner is a person detained in lawful custody under a sentence of imprisonment. In Tasmania, most persons under detention are prisoners.

Prison and Mental Disorders

Where a jury has found a person to be incapable of standing trial, or has acquitted a person on the ground of insanity, the trial judge shall order that the person is liable to supervision under Part 4 of the Criminal Justice (Mental Impairment) Act 1999 (Tas) (s21). The person then becomes subject to the provisions of the Mental Health Act 1996 (Tas)  and a review of any period of detention is the responsibility of the Forensic Mental Health Review Tribunal.

In most cases, males are detained in the prison hospital in the Risdon maximum security facility, and women in the women’s prison. The release or transfer is the responsibility of the ‘controlling authority’.

Women in Prison

The number of inmates within the women’s prison varies on average between five and 40. Because of the smaller number of persons involved, the procedures - although similar to the male prison - are more relaxed and greater scope is given to individuality, especially in the areas of dress, movement and contact visits. However the downside is that the women’s prison is only a fraction the size of the men’s prison and women are much more constricted in terms of exercise and work.

Going to Jail

Everyone entering jail as a new prisoner will still be in a psychological state of confusion and trauma resulting from the imposition of a sentence, or the refusal to grant bail. The prisoner steps out of the van, which is already inside the prison walls. The sound of a series of gates closing behind the van heralds the stark reality that freedom has been lost. Everyone entering prison should fully appreciate that the reason for their detainment is to punish. The comforts of freedom need to be abandoned. Inmates must prepare for a culture shock.

On reception at the prison a prison officer takes and records name, age, weight, height, a description of general appearance and distinguishing marks. In addition a photograph is taken. Details of the next of kin, together with a contact telephone number is obtained. The prisoner will be questioned on matters of health. If there are, or have been, suicidal tendencies, the person may spend time in the prison hospital under observation, before being allocated a cell in the main prison area. The reception also includes a medical assessment by a member of the Forensic Mental Health team. This includes taking a person’s medical history and requesting their medical records from that person’s GP or other doctors.

In the reception room the prisoner is stripped of all personal possessions including (unless they are a detainee) clothes. Most personal items would have been previously confiscated by officers of the court prior to the transfer to jail. A detailed inventory must be kept of all the prisoner's confiscated property (other than perishables) and returned to them on release. The prisoner is searched, can be required to bathe, and is subject to medical examination, usually the following day.

Prison clothing and items of bedding are issued, together with a ration of toiletries. Prior to a canteen being available, the inmate has to rely upon the handout of soap and razors to shower and shave and to wash certain items of clothing for perhaps a fortnight. The prisoner is then conducted to a cell.

Learning the Rules

Within the first 24 hours, a male prisoner learns:

  • to call security officers, chief Custodial officers and officers of higher rank "Mr". Custodial officers are generally referred to as "Boss";
  • to obey all orders;
  • not to enter another’s cell;
  • to rise immediately on the first bell, dress as required and to make up the bed in a set manner;
  • to shave daily, unless permission is gained for a beard;
  • to parade immediately upon demand and to remain silent during muster;
  • to march in line to and from meals?;
  • to shower in accordance with a set timetable;
  • to live life according to a rigid set of times and rules.

For many first-time prisoners, the worst time is at evening muster when they stand just inside the cell door, and wait as each door is firmly shut and then locked.

Psychology of the Procedure

Loss of identity is one of the psychological effects of the procedure. The change of identity is emphasised by the nature of the admission process, the loss of personal possessions, the clinical and indifferent manner of recording personal details, and the search. The process can destroy the individuality of the prisoner. The process is similar to that employed in ‘recruit training’ within military organisations. The desired end result is the same - a loss of identity, an acceptance of group identity and an amenability to discipline. This is intended to result in an orderly prison life. Unfortunately, prison does not offer the corresponding positive values of a military structure — self esteem, a sense of loyalty and pride in the purpose of the system.

Peer Pressure

The new prisoner becomes subjected to the dos and don’ts of the prison culture. The peer group influence tells the new inmate that they are a ‘crim’, and that the officers are ‘screws’. A prisoner tries to conform as once the label of ‘suspect’ is put on a prisoner by inmates they lose touch with the rest of the inmates.

Once a prisoner accepts the role of a ‘crim’, and is accepted by the other ‘crims’, the new inmate finds a new self-identity by seeing themselves as part of the prison community. Staff/inmate relationships are such that some rapport is possible between the two groups.

Some prisoners are not accepted into the prison culture, although non-acceptance is rare. In most cases, non-acceptance is connected with the type of crime committed by the prisoner, especially homosexuality and sexual offences involving children. Non-acceptance can also come about by breaking the code of the prison culture.

Given all of this, the pressures on a new inmate to conform with the code are enormous, because it is very hard to live in prison as an independent individual, not only because of the way the person is treated by the prison community (staff and inmates) but also because of the individual’s need for acceptance and identification.

Classification

All prisoners entering jail for the first time do so as maximum security inmates. Within a day or two a classification committee comprising jail personnel will assess their suitability for work. A person's status is open to review by the committee, which, if appropriate, can change a prisoner's rating from maximum to either medium or minimum.

Fellow Inmates

A new prisoner cannot expect much assistance from fellow inmates during their settling in period. The jail mentality (both inmates and authorities) is to learn and survive by oneself. A new inmate will have no friends. A feeling of loneliness is ever present. It is fair to say that there are few friends in jail, only acquaintances. Prisoners surround themselves with inmates of like understanding and interests and feel comfortable with this existence.  A new inmate is regarded as an outsider and needs to earn respect and approval to be accepted by a group. It is highly desirable to ‘do one's time’ with minimal agitation. In addition to obeying all rules and work orders this is best achieved by respecting the privacy of others, by not violating other inmate's possessions and by doing twice as much listening as talking.

Clothing

Part of the clothing which the prison provides consists of shirts and trousers which are laundered each day. The quality and appearance of the apparel is not high and prisoners may find it an embarrassment to wear.

Violence

The median age of prisoners is becoming younger, and fellow prisoners may be aggressive and anti-social. Violence is not a regular part of prison life but problems are occasionally settled by conflict. Such conflicts revolve around the younger community within the jail. The problem for a prisoner is how to respond to violence. Given that the ability to overcome violence by a greater use of violence is not present in most inmates, one option is to inform and bring the matter to the attention of the authorities. Given that this is against the prisoners' code, there are inherent risks associated with this solution. In most cases it is resolved by an acceptance of fate and the adoption thereafter of a low profile.

Of equal concern to the system is male sexuality. Because of the age grouping, sexual release through homosexual contact may occur. Despite all systems of surveillance in prisons consensual sexual activity may occur.

Family

The imprisonment of a person can result in serious repercussions for family members. Just as jail is traumatic for the prisoner, so it is that others similarly suffer. The sight of a person being led from the court handcuffed, destined for prison, and of the family unable to have any contact is emotionally overwhelming for both. The impact of being disassociated can lead to similar emotions that the prisoner experiences — anxiety, stress, loneliness etc.

Imprisonment can have a financially devastating effect on a family, particularly if the prisoner was the bread winner. Each party in its own way suffers helplessness. It becomes a horrifying event for family and friends to visit an inmate within the precinct of jail. The situation is further exasperated by the loss of physical contact.

Contact visits now occur every weekend and by request during the week. Visiting helps to adjust to the deprivation and assists in keeping the family unit together. Positive attitudes from both sides on visitations or through letter writing help alleviate foreboding associated with incarceration.

Prison

Prison Structure and Administration

There are a number of prison institutions in Tasmania.

  • Risdon Prison (maximum, medium and low security)
  • The Women’s Prison at Risdon
  • The Wilfred Lopes Centre and other forensic mental health facilities
  • Hobart Remand Centre (generally for short term remand and reception prisoners).
  • The Launceston Prison (for short term remand and reception prisoners)

The Burnie Remand Centre is proclaimed as a prison but is only used on a daily basis for people attending trials in Burnie. Prisoners and detainees attending trials in Devonport and Burnie are conveyed to Launceston for overnight detention.

Prisons in this state are administered under the Corrections Act 1997 (Tas) and the Corrections Regulations 2008 (Tas). The administration of the prison is the responsibility of the Director of Corrective Services who also has the title of General Manager, Corrective Services Division. The Director is appointed by the Governor under the provisions of the Corrections Act. The Director also has the power to make Standing Orders for the management and security of prisons and for the welfare, protection and discipline of prisoners. References to sections or regulations will normally be to the Corrections Act and Regulations.

The Director in fact can exercise all of the powers under the Corrections Act, but in practice the day-to-day management of the prison system rests with the General Manager, and of individual prisons with the Managers. The actual structure of the administration is hierarchical and in many ways is similar to a military or police institution. Police officers are also vested with all of the powers of a prison officer.

Range of Prison Institutions

For the purpose of segregation, Corrective Services operates the following institutions.

  • Risdon Maximum Security Prison for male inmates.
  • Women's Prison for maximum to minimum security inmates.
  • Wilfred Lopes Centre for maximum to minimum security inmates.
  • Risdon Medium Security Unit for medium security male inmates
  • Ron Barwick Prison for minimum security male inmates.

The maximum security prison is subdivided into a number of accommodation divisions and workshops which allows segregation of inmates for protection and other particular needs. Many medium and even minimum security prisoners may spend time in this prison.

Transfers between Institutions

It is the responsibility of the General Manager to allocate inmates to prisons after they have been classified. There are many reasons why transfer to a lower level of security may not occur immediately after classification.

It is sometimes necessary for inmates to be held in an institution of a higher security rating whilst waiting for a vacancy in a lower level or if particular programs in which they are enrolled are only available in that institution. Another example could be that an inmate may be completing medical treatment which is only available under close supervision of the Prison Hospital. Transfer will normally take place as soon as all the necessary conditions have been met.

Prison Facilities

Medical Treatment and Examination

The prison is obliged to supply, at public expense, such medical attendance and treatment as is necessary for the preservation of health. In practice, this means an attendance of a doctor at the prison hospital. A prisoner cannot obtain treatment by a doctor of their own choosing, or at their own expense.

The Corrections Act and Corrections Regulations allow a person nominated by the Director to "cause food to be fed to a prisoner or detainee" where a medical officer certifies in writing that the prisoners failure to eat is endangering the life and health of the prisoner (Reg 9).

Library

A prisoner or detainee is entitled to use the prison library at least once a week. It has not been determined by the Courts as to whether this is counted as a privilege which can be withdrawn although it is treated as such.

Recreational Activities

Prisoners are permitted, as a privilege, to keep a radio and/or television receiver within their cells. These privileges can be withdrawn. The male prison has a debating group, football and cricket teams who compete against outside organisations, together with a range of other sporting activities. Some sports equipment (for example, nets, volleyball, table tennis) is available.

A range of educational classes is also available (such as literacy classes, arts and craft, etc.). Prisoners can also sometimes study for secondary or tertiary qualifications by doing correspondence courses.

Employment

A prisoner must do work suitable to their physical and intellectual capacity (s33). Prisoners must be paid for work at a rate determined by the Director. At present prisoners are paid in accordance with a graded scale that begins at $5.00 per week and ends at $44.00 per week not cewrnot Nofor inmates employed in certain positions. There are numerous employments available.

Earnings from work can be:

  • allocated to dependants;
  • used for the purchase of necessities;
  • used for the purchase of clothing and other items immediately before release;
  • used to pay for educational expenses;
  • used to pay for special medical or dental treatment not payable from public moneys.

The Act says that money can also be used to satisfy ‘judgment debts’ (s34(3)).

A ‘detainee’ is not obliged to work but may be allowed to do so if they request it.

Work in the male prison is varied. There is a metal and woodwork shop (where some training is given), a paint shop, bakery, kitchen and laundry. There is provision for the employment of an industrial supervisor and trade instructors.

Interstate Transfer

The Prisoners (Interstate Transfer) Act 1982 (Tas) permits the transfer of prisoners to or from another State. A prisoner may be transferred on welfare grounds or legal grounds. There is no appeal against a refusal to transfer on welfare grounds. A decision is not reviewable by a court or tribunal. A request need not be considered if it is made within one year after a similar request was made by the prisoner. Parole and prison reports form a significant part of the formulation of the opinion.

A similar provision exists in relation to a prisoner who is the subject of an arrest warrant issued in another state. The procedure whereby prisoners, and other persons, are transferred in these circumstances is known as ‘extradition’.

Prison Discipline

A person in prison is subject to the same legal requirements as anyone else in Tasmania. A crime or offence committed inside a prison is a crime punishable under the same laws as apply outside. Of course it is not so easy for a prisoner to take action when they are the victim. In addition, however, prisoners and detainees are subject to special sets of rules.

The Director can reduce the sentence of a prisoner by one third so long as this does not reduce the sentence to less than three months. Remission is granted almost as a matter of course. Prisons throughout the world use the remission system as a method of maintaining order and discipline within their systems. Remissions are not the product of a concern for prisoners, but a carrot and stick method of control. Because of this, it is important to remember that what is regarded as cheekiness, high spirits, dumb insolence on the outside can have an effect on a prisoner’s release date.

A record is kept of ‘misconduct’ of each prisoner and detainee, and the contents of that record must be considered when computing the amount of remission to be granted to that person. However, as a matter of practice, a reduction of remission is reserved for only the most serious offences and is used sparingly.

There is a requirement that orders be obeyed promptly. In the event that a person believes that a particular order given by a prison officer is wrong or unfair, that person is required to obey the order, and only afterwards may complain to the Manager about that order.

Offences committed in prison

These are contained in Schedule 1 of the Corrections Act, and are made pursuant to section 58 of the Act. They are far reaching in extent. Some examples of offences include mutiny, being idle or negligent at work, cursing, feigning illness and maiming, injuring or tattooing oneself or another.

Standing Orders and Rules

The Director has the power to issue standing orders (s6(3)) and they can be varied whenever desired. It is an offence to contravene these orders.

Standing orders apply essentially to staff.

Standard Operating Procedures (formerly Prison Rules)

These procedures cover the general routine of prison life. They provide for duties on getting up in the morning, cleaning duties, prohibition about entry of cells, mustering, times of silence, obedience to orders and so on.

Searches

A prisoner or detainee must be searched on admission and immediately before discharge. They may be searched at any other time in any manner the officer in charge considers necessary. Cells are required to be searched before the person is accommodated in that cell, and at such other times, as the General Manager considers necessary. Any unauthorised article found during the search is confiscated.

Penalties for Prison Offences

The penalties that may be imposed on a prisoner or detainee are set out in section 61. They include:

  • Loss of privileges for not exceeding 90 days in the case of contact visits and 30 days in any other case.
  • A period of separation from other prisoners not exceeding 30 days. This will normally mean a stint in Division 8, Risdon’s punishment wing where conditions are particularly harsh.
  • Deduction from prison wages or allowances to pay for any damages to property loss, or all or part of remission.

Weapons

A Corrections officer may use firearms against a person escaping or attempting to escape. They are not permitted to do so unless they have reasonable grounds to believe that they could not otherwise prevent the escape.

Firearms may be used in cases involving a combined break out, or an attempt to break open a door or gate. They may also be used where violence is used against a person "if that person has reasonable grounds to believe that the other person is in danger of life or limb, or that grievous injury or harm is likely to be caused to him or her".

A warning to stop and that a firearm will be used, must be given before the weapon can be discharged.

Prisoners' Rights

A prison is a place of detention and it is understood by society that the rights of inmates should be limited. However, there is an acceptance that the detention should be conducted with a degree of humanity and fairness and section 29 of the Corrections Act 1997 (Tas) sets out an extensive list of rights that prisoners retain whilst in custody. Some of these are outlined below.

Complaints

A prisoner who wants to see the Manager, an official visitor or chaplain may apply to the officer in charge of the Division. If the need to speak to the Manager is urgent, the prisoner may ask the nearest Custodial officer.

Ombudsman

As well as investigating complaints against police, the Ombudsman also has a special role in investigating complaints by prisoners. For more details on the Ombudsman see the relevant section.

Legal Advice

There is no entitlement to legal representation when a prison charge is being dealt with by a disciplinary officer.

A legal practitioner may at all reasonable times interview a client in accordance with procedures determined by the Director (s16, Corrections Act 1997). In practice, lawyers are given access to persons in interview rooms situated in the main yard without the presence of a prison officer.
The Hobart Community Legal Service operates a regular Prisoners Advice Service which provides general legal advice and referral, with respect to general legal issues (i.e. not relating to the offence for which the prisoner is in jail). An officer from the prison programs unit will contact the Service or the prisoner's lawyer if requested by a prisoner.

There is also a newly established Prisoners Advisory Service, established by barristers from Michael Kirby Chambers in Hobart and Australian Lawyers for Human Rights. This Service began operation in late 2012 and holds a monthly clinic for prisoners. It involves law students from the University of Tasmania working with lawyers to assist prisoners with parole applications.

There is no limit to the number of letters a prisoner or detainee may send to or receive from a lawyer.

Voting

Under the Commonwealth Electoral Act 1918 (Cth)  a person who is serving a sentence of imprisonment of three years or longer is not eligible to vote in Commonwealth elections (s93(8AA)). No prohibition exists for state elections.

Religion

On admission a person must be given the opportunity to state their religion or religious denomination. Such statement must be recorded. A person is entitled at all reasonable times to practice the rites of religion, and to receive religious guidance from a chaplain or responsible member of such religion or religious denomination (s29).

Correspondence

Letters and other forms of communication with the outside world are an important lifeline for the prisoner. A prisoner may write to friends and relatives uncensored, provided the letters are not of a threatening or harassing nature (s29). The prison may deduct money from the earnings of a person to cover the cost of postage of extra letters. Correspondence both in and out may be read by an authorised Corrections officer. Correspondence both in and out may be withheld (s29(2)).

Section 29 rights

Section 29 gives the following rights to prisoners and detainees:

  • the right to be in the open air for at least an hour each day (if facilities allow);
  • the right to be provided with food that is adequate to maintain health and well-being;
  • the right to special dietary food where such food is necessary for medical reasons or on account of the religious beliefs or because the prisoner or detainee is vegetarian;
  • the right to be provided with clothing that is suitable for the climate and for any work required;
  • the right of a detainee to wear their own clothes;
  • the right to have access to reasonable medical care;
  • the right for the intellectually disabled or mentally ill to have reasonable access to special care and treatment;
  • the right to have access to reasonable dental treatment;
  • the right to practise a religion of the prisoner's choice and, if consistent with prison security and good prison management, to join with other prisoners or detainees in practising that religion and to possess such articles as are necessary for the practice of that religion;
  • the right of a prisoner to receive at least one visit each week of at least 30 minutes duration and such other visits as the Director determines;
  • the right of a detainee to receive at least 3 visits each week and such other visits as the Director determines;
  • the right to send letters to, and receive letters from, the Minister, the Director, an official visitor, the Ombudsman or an officer of the Ombudsman without those letters being opened by prison staff;
  • the right to send and receive other letters uncensored by prison staff (with the exception of threatening or harassing letters);
  • the right to advise partner or next of kin of the person’s imprisonment;
  • the right to have access to legal advice or to apply for legal aid;
  • the right to be provided with information about the rules and conditions which will govern the prisoner's or detainee's behaviour in custody.

Leave Permits and Release

Length of Sentence

In Tasmania, the courts will normally determine a period of imprisonment, and leave the period of the actual term to either the Parole Board, or the remission system. Amendments have been made to enable a judge to fix a minimum sentence before the person becomes eligible for parole (s19Sentencing Act 1997 (Tas)).

If a sentence is more than three months, a prisoner automatically receives a third off the period of their sentence, or three months, whichever is greater. This means that someone who has a six-month sentence receives two months off their sentence, leaving them to serve four months – the greater of the two periods.

Remissions

A remission may be granted for a period of three months off the sentence imposed by the court. No remissions are available for sentences of three months or less. (Reg 23, Corrections Regulations) Thus a person sentenced to a term of imprisonment of 12 months, for example, can expect to be released at the end of nine months.

Remissions are granted at the discretion of the Director "by reason of the prisoner's good conduct and industry". The impression is that remissions are a ‘privilege’ but the reality, at the time of writing, is that they are given as a matter of course and are not readily reduced. Once reduced they can be reinstated and often are.

A person convicted of escape or attempted escape is not entitled to remission in respect of any period of imprisonment to and including the day on which the escape or attempted escape was made. Even here, however, the Director has a discretion, in ‘exceptional’ circumstances, to grant a special remission.

Remissions are not available to life prisoners or prisoners declared to be dangerous criminals because they serve a sentence of indefinite length. The only way in which they can be released is by being granted parole.

Remissions cannot operate so as to reduce a non-parole period imposed by a court.

Leave Permit

The prison may grant a leave permit (for a period not exceeding 72 hours) to enable a prisoner or detainee to leave the prison for a number of reasons including:

  • a funeral;
  • in cases of illness of a relative or person the prisoner has had a long standing relationship with;
  • the arrangement of employment;
  • the attendance at an educational or training institution (s42, Corrections Act);
  • in the case of Aboriginal prisoners to attend events of cultural significance;
  • to take part in a program approved by the Director which is designed to facilitate the prisoners rehabilitation and reintegration into the community.

The leave can be revoked by the Director (s43) and with Ministerial approval under some circumstances the leave permit may be extended for a limited period.

Visitors

Contact Visits

Contact visits are now permitted at Risdon as well as Hayes Prison Farm. Contact visits are permitted in the women’s section of the prison especially if young children are involved. Contact visits last for 45 minutes and take place in the presence of a Correction officer.

Box visits

Box visits are limited to 30 minutes. Inmates and visitors are separated by a glass screen for non-contact (box) visits.

Requirements for Visitors

A visitor may not take things away from the prison without authority. A visitor must give proof of their identity on request and if the visitor gives a false identity or refuses to give ID and disobeys an order to leave the prison they are guilty of a criminal offence (fine of up to $500) (s18, Corrections Act).
A visitor may be required to supply their name and address before entry to the prison. Visitors may be searched (s20) and if permission to search is refused the visitor may be ordered to leave the prison. The prison may refuse admission to an intending visitor whom it regards as undesirable.

Official Visitors

The Justice Minister may appoint persons who are obliged to visit the prison at least once a month. The visitor may report directly to the Minister on the state of the prison, the treatment and condition of prisoners and detainees. This is traditionally regarded as an important safeguard to abuses of power by the prison authorities and an independent monitor on the condition of the prisons. A person with a complaint should arrange to meet with the official visitor and to set out the basis of the complaint. Official visitors cannot interfere with the running of the prison, but they must be given the full co-operation and assistance of the prison authorities in carrying out their work. A judge or magistrate may visit a prison at any reasonable time.

Visits by Police

The police can enter the prison to interview detainees and prisoners in accordance with procedures set by the Director (s17). A prisoner or detainee may refuse a visit from a police officer and is not required to answer questions from a police officer. An interview between a police officer and a prisoner can be conducted in the sight but not the hearing of a Custodial officer, at the prisoner’s request.

If a police officer proposes to visit a prisoner, the Director must ensure that the prisoner is advised of their rights under section 17 (s17(5)).

Parole

The parole system and the Parole Board which administers it, operates under the Corrections Act. The Board is a statutory body appointed by the Governor consisting of a lawyer and two other persons qualified in matters of sociology, criminology, penology, medicine or any other relevant knowledge or experience. The Board is independent of the prison system.

What is Parole?

Parole is the conditional release of a prisoner before the completion of sentence. It is different from remission because the prisoner is still taken to be serving their sentence during the period of parole (s78). They are under the supervision of a parole officer.

Eligibility

A prisoner (other than a life prisoner or ‘dangerous criminal’) convicted for an offence after April 1987 cannot be released on parole until they have served one half, or at least 6 months, of their sentence unless in the opinion of the board there are exceptional circumstances (ss68 & 70). The Supreme Court can also set a non-parole period in excess of that period when sentencing the prisoner (s69). This power has not often been used by the court. There is a strong school of thought that the question of release should be left to the Parole Board or the prison authorities and attempts by the court to restrict their powers in advance only serve to undermine the effective administration of the prison system. The Sentencing Act states that the court has the power to not make an offender eligible for parole in respect of a sentence (s17(2)(a)). Further, if the court does not make an order in respect of parole, it is deemed that the offender is not eligible for parole in respect of that sentence (s17(3A)).

Where sentences are cumulative (that is, to be served one after the other) the non-parole periods are added together. Where they are concurrent (that is, to be served at the same time) the non-parole period is equivalent to the non-parole period of the longer (or longest) sentence.

A prisoner can apply for parole by completing an application form. This form can be obtained from a programs officer at the prison and must be forwarded to the Secretary of the Parole Board.

Life Prisoners and Dangerous Criminals

Life prisoners and dangerous criminals cannot apply for parole (s69). A dangerous criminal can apply once the declaration under section 19 of the Sentencing Act that they are a dangerous criminal is discharged.

The State Government made a policy statement in 1992 that a life prisoner would not be considered for parole until they had served at least 10 years of their sentence other than in exceptional circumstances.

In 1994 the State Government passed an amendment to the Criminal Code enabling life prisoners to apply to be re-sentenced with a fixed sentence. This was referred to as the ‘truth in sentencing’ legislation. Since that amendment many life prisoners have applied to the Supreme Court for re-sentencing. Dangerous criminals also have the right to apply for sentencing.

The new sentence takes effect from the time of the original sentence. When re-sentencing a life prisoner or dangerous criminal the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime for which the applicant was originally sentenced. This includes imposing a non-parole period.

How the Parole Board Makes Decisions

Once a prisoner becomes eligible for parole, or on application by the prisoner, the Board will seek reports from the prison authorities, possibly a medical (psychiatric) report and also a report by a parole officer. Section 72(4) of the Corrections Act 1997 (Tas) sets out the factors to be taken into account when deciding whether to release a prisoner on parole.

After considering the case, the Board can grant or refuse parole or defer the decision (s72(3)). It can set conditions to parole (s77(3)). These will normally be that the prisoner must keep the parole officer informed of their current address, keep appointments for interviews with the parole officer, be of good behaviour and comply with the reasonable directions of the parole officer. Regular use is made of a condition which prevents parolees from entering any premises where alcohol is served and sold. These will be stated on the parole order, a copy which must be given to the prisoner (s72(7)). Section 72(8) requires the Board to give to prisoners reasons in writing for refusing parole or deferring its decision.

Breaching Parole

The Board can revoke (take away) or change the conditions of parole at any time (s79(1)(a)). Before doing this, however, the Board must give the prisoner the opportunity to present their views (s79(2)).

Where parole is revoked, the prisoner will have to complete what remained of their sentence when given parole and none of the period of parole will be taken into account (s79(5)). Life prisoners will again be back on ‘indeterminate’ sentences. Parole can, however, be granted again.

Work and Workers

Employment Law

Acknowledgments

We would like to thank Craig Dowling, Barrister, and Neill Campbell, Barrister, for contributing this chapter through the Fitzroy Law Handbook Online. A particular thanks to the Fitzroy Legal Service for permission to reproduce this chapter here.

Introduction

This chapter provides a summary of the law as at 1 July 2012. The chapter's focus is on the rights, entitlements and obligations of employees in Tasmania. Those rights, entitlements and obligations derive from a wide range of sources, including statutes, awards, collective agreements, individual agreements and the common law.

The most significant statute affecting employment conditions in Australia is the federal Fair Work Act 2009 (Cth) ("FW Act"). The FW Act sets out:

  • most of the rights and duties of employees and employers;
  • the procedure for the negotiation and certification of federal agreements; and
  • amongst other things, governs the affairs of federally registered unions (together with the Fair Work (Registered Organisations) Act 2009 (Cth)).

This chapter primarily deals with:

  • the common law employment contract;
  • workplace agreements and awards under the Workplace Relations Act 1996 (Cth) (WRA) and the FW Act;
  • statutory and common law terms of employment;
  • enforcement of entitlements; and
  • termination of employment.

However, this chapter is not limited to the above topics. See the table of contents for further information.

Interrelationship between statute, statutory agreements and common law contracts: Terms and conditions of employment contained in legislation, awards or statutory agreements are generally minimum terms and conditions. This means that the parties can agree by contract to pay more than the minimum for any one or more entitlements in the statute, award or statutory agreement.

A common law contract can not provide for a lesser term than that contained in a statute, award or statutory agreement. The employer must provide the employee with at least every minimum term or condition in the statute, award or statutory agreement. It is no excuse if the employee was, overall, better off under the common law contract.

Contracts and statutory award and agreement terms and conditions exist side by side, with an employee entitled to the most beneficial term that applies. For example, the ordinary hours pay in a contract may be the most beneficial term for the employee's ordinary hours of work, but the award overtime condition may be the most beneficial for overtime work. In those circumstances, the employee is legally entitled to the contractual term for ordinary time work and the award term for overtime work.

Recent government amendments

The Government made substantial changes to industrial legislation. Some changes took effect from March 2008 (the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) ("Transition to Forward with Fairness Act")), while other changes took effect from 1 July 2009 and 1 January 2010 (the FW Act). Further changes are contained in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("FW (TPCA) Act").

Tasmania

Tasmanian employment law is regulated by the Fair Work Act 2009 (Cth). The Industrial Relations (Commonwealth Powers) Act 2009 (Tas) refers responsibility to the Commonwealth under the Commonwealth Fair Work Act to provide for, and continue to provide for, the following:

  • a strong, simple and enforceable safety net of minimum employment standards;
  • genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;
  • collective bargaining at the enterprise level with no provision for individual statutory agreements;
  • fair and effective remedies available through an independent umpire;
  • protection from unfair dismissal; and
  • an independent tribunal system and an independent authority able to assist employers and employees within a national workplace relations system, associated with the Fair Work Act (FWA).

Other legislation, such as the Commonwealth Sex Discrimination Act 1984Racial Discrimination Act 1975 and Disability Discrimination Act 1992, and the Anti-Discrimination Act 1998 (Tas), Long Service Leave Act 1976 (Tas) and Work Health and Safety Act 2012 (Tas), also affect working conditions in Tasmania.

Employment Contracts

A threshold question in determining the rights and duties of a worker is whether the individual is an employee or an independent contractor. Mostly it is only employees that are covered by awards, certified agreements, collective agreements and individual agreements. Other legislation concerned with working relationships and conditions is usually applicable only to employees.

Contract of employment or independent contractor?

An "employee" is a worker who works for another in exchange for wages. There are other arrangements for the performance of work that look like employment contracts, but are treated as independent contracting arrangements, or contracts for the provision of services.

The contract under which an employee performs work is called a "contract of service". The contract under which an independent contractor performs work is called a "contract for services".

Independent contractors generally are not covered by statutory minimum standards, awards or workplace agreements made under the WRA or the FW Act (see: "National Employment Standards", "Awards" and "Workplace Agreements"). Independent contracting arrangements are widely used in the transport and building industries.

The courts have developed a series of tests for distinguishing between employees and independent contractors. The touchstone is the nature and degree of detailed control which the employer exercises over an individual's work. Other factors are also considered, such as whether the worker or the employer:

  • supplies tools and equipment;
  • pays the worker's income tax; and
  • whether the worker:
  • is able to work for other employers;
  • is able to delegate work to an employee or sub-contractor; and
  • carries a financial risk or has an opportunity to participate in the profits of the employer's business.

In the case of Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001) the High Court determined that the relationship between a courier company (Vabu Pty Ltd) and its couriers was that of employer and employee. The court considered relevant the fact that the couriers were not providing skilled labour, had little control over the manner of performing their work where Vabu had considerable scope to exercise control, wore the uniforms of Vabu Pty Ltd, and were provided with pay summaries.

Contents of the contract of employment

Each contract of employment contains terms and conditions by which the parties regulate their relationship. Such terms may be oral or written, or a combination of the two. Often, letters of appointment, job descriptions, policy manuals, awards, collective agreements, workplace practices and legislation will be sources of further terms of the contract.

The common law implies certain terms into every contract of employment, imposing obligations on employees and employers. Further, obligations in the relationship between employee and employer arise in tort, equity and from fiduciary duties. An example of a common law implied contractual term is the common law duty of fidelity and confidentiality, which prevents employees from using or disclosing their employer's trade secrets. Implied into every contract of employment is a general duty to obey the employer's lawful and reasonable directions. Further, all employees are obliged to exercise reasonable care and skill in the performance of their duties.

Contracts of employment that do not include an express termination provision will contain an implied term that the employer will give the employee "reasonable notice" before terminating employment, unless the employer has summarily dismissed the employee for "serious misconduct". The common law also implies a term that the employer and employee will not, without reasonable cause, conduct themselves in a manner likely to destroy the relationship of trust and confidence existing between them.

Under the FW Act, a contract of employment cannot displace an entitlement under the National Employment Standards discussed below (see: "National Employment Standards").

Breach of employment contract

Just like any other contract, either party may sue in most circumstances for damages for breach of the employment contract. For example, engaging in a strike may constitute a breach of the employment contract by an employee; or when an employee is not given the requisite period of notice specified under their contract, the employee may seek damages for breach of contract. These common law rights have to some extent been superseded by statutory rights to sue for reinstatement, breach of statutory agreements and underpayment of wages.

National Employment Standards

The FW Act creates National Employment Standards (NES) which took effect from 1 January 2010. The NES are statutory terms and conditions of employment and apply to all employees in the national system (defined in section 13 of the FW act), including management employees. They are enforceable by statute and cannot be displaced by awards, enterprise agreements orcommon law contracts, unless specifically provided for in the FW Act.

Sections 61 to 125 of the FW Act detail the NES. In summary the NES are:

  • a maximum of 38 hours per week, subject to additional hours if reasonable and the averaging of hours over a period of time (ss62-4);
  • the right to request flexible working arrangements for an employee who has caring responsibilities for a child. The employer must respond in writing and can only refuse on reasonable business grounds (s65);
  • parental leave and related entitlements of, amongst other things, 12 months unpaid parental leave to care for a child (ss67-85);
  • annual leave of four weeks accrued for each year of service or five weeks for shift workers, as defined (ss86-94);
  • personal/carer's leave of 10 days paid per year with the possibility of further unpaid days in defined circumstances. Compassionate leave of two days per year in defined circumstances (ss95-107);
  • community service leave for an employee to undertake a defined type of community service, such as volunteering for a fire fighting body, in defined circumstances (ss108-112);
  • long service leave as provided by a pre-reform award, unless excluded by an enterprise agreement, and if there is no Federal Award entitlement, long service leave legislation will apply (s113);
  • the entitlement to be absent from work on the public holidays specified in the FW Act, unless the employer makes a reasonable request for an employee to work and the employee does not have a reasonable basis for refusing (ss114-6);
  • notice of termination or pay in lieu according to Table 1 (below);
  • redundancy pay if the employee's employment is terminated:
    at the employer's initiative because the employer no longer wants the job of the employee done by anyone, except where this is due to the ordinary and customary turnover of labour; or
    because of the insolvency or bankruptcy of the employer. 
    Redundancy pay periods are calculated as shown in Table 2, below (ss117-123); and
  • a fair work information statement to be provided by an employer to each of their employees (ss124-5).                    
TABLE 1
Employee's period of continuous service with the employer
  at the end of the day the notice is given
Period  
   Not more than 1 year 1 week
   More than 1 year but not more than 3 years 2 weeks
   More than 3 years but not more than 5 years 3 weeks
   More than 5 years 4 weeks

 Note: The period of notice is increased by one week if the employee is over 45 years old and has completed at least two years of continuous service with the employer.

TABLE 2
Employee's period of continuous service
with the employer on termination
Redundancy Pay Period
   At least 1 year but less than 2 years 4 weeks
   At least 2 years but les than 3 years 6 weeks
   At least 3 years but less than 4 years 7 weeks
   At least 4 years but less than 5 years 8 weeks
   At least 5 years but less than 6 years 10 weeks
   At least 6 years but less than 7 years 11 weeks
   At least 7 years but less than 8 years 13 weeks
   At least 8 years but less than 9 years 14 weeks
   At least 9 years but less than 10 years 16 weeks
   At least 10 years 12 weeks

 

 

 

 

 

 

 

 

 

 

 

Awards

Historically, a Federal Award was an order made by the Australian Industrial Relations Commission (AIRC) in settlement of an interstate industrial dispute. The order would contain terms and conditions of employment that would govern the employment relationship. Sometimes the "dispute" was really only a technical one to give the AIRC power to act. In 1996 the concept of an industrial dispute for award-making purposes was re-defined and limited to 20 topics called "allowable award matters". As a result, awards could only create enforceable rights and obligations so far as the underlying industrial dispute dealt with an allowable award matter or things incidental to such matters, and then only by prescribing minimum terms and conditions.

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Work Choices") amendments further limited the content of awards.

Awards have historically been binding only on named respondents (parties). A list of respondents was usually found in the award itself. An employer may also have been bound if it was a successor of a named party, or if the employer belonged to a recognised employer organisation that was named as a party to the award. The award also named the union or unions which were party/parties to it. It was the union that negotiated the award on behalf of employees who were eligible to be its members.

Generally, individual employees did not appear before the AIRC on the hearing or determination of a "dispute".

Common Rule Awards operate within Tasmania. That is, the AIRC can make a Federal Award that applied to all employers within an industry in Tasmania, without the need for the employer to have been party to a dispute. In practice the AIRC extended existing Federal Awards, with some variations to apply to a whole industry.

Work Choices sought to make awards a marginal part of industrial regulations in Australia by introducing a range of ways in which the award terms and conditions could be avoided, one mechanism being not using the award as a comparison for a "fair" agreement.

FW Act / modern awards

Under the FW Act, awards have a more central role in the industrial relations system than under Work Choices. Awards provide part of the safety net of terms and conditions, along with the NES (see: "National Employment Standards"). Awards are also used as a reference instrument to decide whether an agreement passes the "No Disadvantage Test" (pre-1 July 2009) and the "Better Off Overall Test" (BOOT) (post-1 July 2009).

From 1 January 2010 new modern awards and the NES took the place of the old awards. The old awards no longer apply to any employees or operate for any other reason under the Act, save as a historical reference or where expressly, or by deeming, they are to be incorporated into modern awards, the NES or enterprise agreements. Modern awards have reduced the overall number of awards by combining the coverage of a number of awards into one award.

Modern awards do not apply to workers on higher incomes. The FW Act defines a high income earner as an employee who has a written guaranteed income, accepted by the employee of greater than the amount set by regulations. From 1 July 2011 the amount set by the regulations is $123,300 for full-time workers. Note that workers are not excluded solely because of the level of income, they must also have a written and accepted guarantee of a specified income to be excluded from award coverage (see: ss47(2) & 329-333, FW Act).

Modern awards can contain 10 minimum standards in addition to the NES, (s139). These minimum standards are:

  • minimum wages, including skill-based classification;
  • type of employment;
  • arrangement of work, including hours, rosters and breaks;
  • overtime rates of pay;
  • penalty rates, including for shift, weekend and public holiday;
  • annualised wage and salary arrangements;
  • allowances, including for expenses incurred, additional skills, responsibilities or disabilities;
  • leave, leave loading and arrangements for leave;
  • superannuation; and
  • procedures for consultation, representation and dispute settlement.

Modern awards must also include a flexibility term. Such a term helps an employer and employee to reach an arrangement to vary the effect of an award to meet the genuine requirements of the parties. An employee must be better off overall on the flexibility arrangement than under the terms of the relevant award. The flexibility arrangement must be in writing and signed by each party.

Modern awards may also include terms relating to outworkers, industry specific redundancy schemes (for example the construction industry redundancy fund) and incidental and machinery terms, (see: ss140-142 of the FW Act). Modern awards may also provide additional detail of the NES required for the specific industry.

As part of the award modernisation task, the AIRC created a default award, which will apply to all non-managerial employees who are not covered by a modern award.

It is not always easy to find out whether a Federal Award applies. The best source of information for union members is their union, which will be familiar with awards within its industry.

A breach of an award can lead to prosecution by authorities as well as to civil action.

Workplace Agreements

The Workplace Relations Act 1996 (Cth)  the "WRA") was repealed in 2009. However, this does not mean that it does not still affect some working relationships, as agreements made under that Act will continue to operate until the agreement is terminated, either by a termination of employment or a new agreement.

The WRA, as amended by Work Choices, created several classes of workplace agreements (see: Part 8 Div 2, WRA). They include:

  • Australian Workplace Agreements (AWAs);
  • union collective agreements;
  • employee collective agreements;
  • multiple business agreements; and
  • employer greenfields agreements.

The Transition to Forward with Fairness Act removed the ability to make and lodge new AWAs (a form of statutory individual agreement) after 28 March 2008, but it created a new type of individual agreement, an Individual Transitional Employment Agreement (ITEA), which a specified class of employer could make and lodge until 31 December 2009. From 31 December 2009 no new statutory individual employment agreements were able to be made or lodged.

Agreements (both individual and collective) made under the WRA continue to operate under the Fair Work Act 2009 (Cth) (the :FW Act"). The FW (TPCA) Act provides that the NES apply to all national system employees from 1 January 2010. Therefore, from 1 January 2010 the NES provides additional minimum terms and conditions for employees on statutory agreements.

Australian Workplace Agreements / Individual Transitional Employment Agreements

AWAs

The Transition to Forward with Fairness Act removed the ability to make and lodge new AWAs after 28 March 2008. AWAs made and lodged before 28 March 2008 can remain in place until they are terminated. From 1 January 2010 employees employed on AWAs have the additional protection of the NES.

Collective Agreements/Enterprise Agreements

Collective agreements under the WRA continue to apply to groups of employees employed in a single business or part of a business because of the savings provisions under the FW (TPCA) Act, Schedule 3. Before the Work Choices amendments, collective agreements were called certified agreements. Under the FW Act they are enterprise agreements. From 1 July 2009 statutory agreements are able to be made under the FW Act.

Employee collective agreements may be made between an employer and its employees about the terms and conditions of employment that will apply to some or all of that employer's employees (s327, WRA).

Union collective agreements may be made between an employer and a trade union about the terms and conditions of employment that will apply to some or all of that employer's employees (s328, WRA).

Union greenfields agreements may be made between an employer who proposes to establish a new business and a trade union, about the terms and conditions of employment that will apply to some or all of the future employees employed in the new business (s329, WRA).

Fair Work Act Agreements

Since 1 July 2009 statutory agreements are able to be made under the FW Act. They are known as enterprise agreements. Under section 172 of the FW Act there are two types of statutory agreements:

  • single enterprise agreements; and
  • multi-enterprise agreements.

Single enterprise agreements can be made in two ways. Firstly, an agreement can be made between an employer or two or more employers that are single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a single enterprise agreement can be made for a genuine new enterprise (a greenfield), between an employer or two or more employers that are single interest employers and one or more trade unions.

Multi-enterprise agreements can also be made in two ways. Firstly, a multi-enterprise agreement can be made between two or more employers that are not single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a multi-enterprise agreement can be made for a genuine new enterprise (a greenfield) between an employer or two or more employers that are single interest employers and one or more trade unions.

How workplace agreements come into force

Under the FW Act an agreement comes into operation seven days after the agreement is approved by Fair Work Australia (FWA) or a later day specified in the agreement (s54, FW Act).

Better Off Overall Test (FROM 1.7.09)

Since 1 July 2009 an enterprise agreement has needed to pass the "Better Off Overall Test" ("BOOT") to be approved by FWA. Agreements made prior to 27 March 2006 and between 28 March 2008 and 30 June 2009 were subject to a no disadvantage test before being approved. Section 193 of the FW Act provides that a non-greenfield, enterprise agreement passes the BOOT if FWA is satisfied that each employee and prospective employee would be better off overall if the agreement applied to them than if the relevant modern award applied to them.

Section 189 of the FW Act provides that if an agreement fails the BOOT, it may still be approved by FWA if it is satisfied that due to exceptional circumstances the approval would not be contrary to the public interest. An agreement approved on this basis can only have a nominal expiry date of a maximum of two years after approval.

Workplace agreements approval procedures

For each type of enterprise agreement there are different procedures for making an agreement (s182, FW Act.

For a single enterprise agreement (that is not a greenfields agreement): The agreement is made when the majority of employees cast a valid vote in favour of approving the agreement.

For a multi-enterprise agreement (that is not a greenfields agreement): The agreement is made when the majority of employees of at least one of the employers cast a vote in favour of approving the agreement.

For a greenfields agreement: The agreement is made when it is signed by the employer and each relevant trade union that is expressed to be covered by the agreement.

Under section 180 of the FW Act an employer must take reasonable steps prior to the agreement being voted on to ensure:

  • that the employees have had access to the written agreement;
  • that the employees are advised of how, when and where the vote will take place; and
  • that the terms and effect of the agreement have been explained to the employees.

Enterprise agreements come into force only once they have been approved by FWA. Before approving an enterprise agreement, FWA must be satisfied of a number of matters, including:

  • that the agreement passes the BOOT, or if it fails the BOOT should be otherwise approved;
  • that the agreement does not contravene section 55 of the FW Act, including that the agreement does not seek to exclude any provisions of the NES (s186(2)(c), FW Act);
  • that the agreement includes a nominal expiry date of not more than four years after FWA approves the agreement and a dispute resolution clause (s186); and
  • if the agreement is not a greenfields agreement, that the employees genuinely agreed to the agreement (s186(2)(a)).

Content of enterprise agreements under the FW Act

The content of an enterprise agreement is largely a matter for the parties. However, there is some content that the FW Actrequires, permits and prohibits. Under section 55 of the FW Act an enterprise agreement cannot exclude the NES or any provision of the NES (see: "National Employment Standards"). Part 2-2 of the FW Act allows enterprise agreements to deal with some matters in the NES.

What an Agreement Should Contain

An enterprise agreement under the FW Act should contain:

  • A nominal expiry date. This is the date after which the agreement may be replaced by a new agreement. Under section 186(5) of the FW Act, the date may be specified in the agreement but must, other than for ITEAs and agreements failing theBOOT but approved on the basis of special circumstances, be no later than four years after the date on which the agreement was approved by FWA. If no date is specified in a collective agreement, then the nominal expiry date is four years from the date it is approved by the FWA. For ITEAs, the nominal expiry date is the earlier of a date specified in the agreement or 31 December 2009. For agreements failing the BOOT but approved on the basis of special circumstances, the nominal expiry date is the earlier of the date in the agreement or two years after the day on which FWA approved the agreement (s.189 FW Act).
  • A dispute settlement procedure. A procedure that deals with disputes about any matters arising under the agreement, and in relation to the NES, must form part of an enterprise agreement (s186(6)).
  • Minimum entitlements. Although not required to be part of a workplace agreement, the NES provides minimum entitlements to employees and cannot be excluded by an enterprise agreement (s55). The minimum entitlements of employees can be improved in an enterprise agreement.
  • A flexibility term. Under section 202 of the FW Act an enterprise agreement must contain a flexibility term that allows an employee and an employer to agree that terms of the enterprise agreement have effect in relation to the employee and the employer as if the agreement were varied by that arrangement. The flexibility term must require the employer to ensure that the employee is better off overall under the proposed flexibility arrangement. If the enterprise agreement does not contain a flexibility term, then the model flexibility term prescribed by the regulations will be taken as a term of the enterprise agreement.
  • A consultation term. An enterprise agreement must contain a consultation term which requires an employer to consult with employees about major workplace change that is likely to have a significant effect on employees (s205). If the enterprise agreement does not contain a consultation term, then the model consultation term prescribed by the regulations will be taken as a term of the enterprise agreement.

What An Agreement May Contain

The content of a workplace agreement is substantially in the hands of the parties. For matters to be included in an enterprise agreement under the FW Act they must fall within one of the following categories:

  • matters relating to the relationship between the employer/s and the employees;
  • matters relating to the relationship between the employer/s and the relevant union/s;
  • deductions from wages authorised by the employee; and
  • how agreements will operate.

See: section 172(1) of the FW Act.

What An Agreement Must Not Contain

An enterprise agreement under the FW Act must not contain a term that is an unlawful term (s186(4) FW Act). Unlawful terms are defined in section 194 of the FW Act to include:

  • discriminatory terms, being terms that discriminate on the basis of the employee's race, colour, sex, sexual preference, age, physical or mental disability, martial status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • objectionable terms, being terms that would require or permit conduct in breach of the "General Protections" contained in the FW Act, discussed below under "General Protections";
  • a term that would confer additional rights on an employee to claim unfair dismissal within the minimum employment period (for a definition see: "Unfair dismissal", below) or would exclude or detrimentally modify an employee's unfair dismissal rights;
  • a term inconsistent with employees' or employers' rights in relation to industrial action; or
  • a term that modifies union officials' rights of entry into workplaces.

Operation of workplace agreements

Australian Workplace Agreements / Individual Transitional Employment Agreements

AWAs

The nominal expiry date of an AWA is the earlier of the nominal expiry date specified in the agreement or five years from the date an AWA is lodged with the OWA. An AWA operates until it is terminated, replaced or declared void by a court. It may only be terminated in accordance with the WRA, which requires, at least, that the agreement exceed its nominal expiry date.

A party who breaches an AWA may be liable in damages to the innocent party for the breach and may be ordered to pay a civil penalty up to $6,600, in the case of an individual, and $33,000 for a body corporate.

ITEAs

The nominal expiry date of ITEAs is the earlier of the nominal expiry date specified in the agreement or 31 December 2009, but ITEAs will continue to operate until terminated or replaced (ss352 & 347, WRA).

Collective Agreements

Under the Transition to Forward with Fairness Act: The nominal expiry date of a Work Choices collective agreement is the earlier of the nominal expiry date specified in the agreement or five years from the date it is lodged with the OWA. A collective agreement remains in force until it has passed its nominal expiry date and is replaced by another collective agreement (s347(5) WRA as amended by Work Choices).
A party who breaches a collective agreement may be liable to pay a civil penalty and be ordered to pay any unpaid wages or other amount the court finds was required to be paid by the relevant term of the agreement.

Under the FW Act: Under section 186(5) of the FW Act, the nominal expiry date may be specified in the agreement but must, other than for ITEAs and agreements failing the BOOT but approved on the basis of special circumstances, be no later than four years after the date on which the agreement was approved by the FWA. If no date is specified in a collective agreement, then the nominal expiry date is four years from the date it was approved by FWA.

An enterprise agreement will come into operation seven days after it is approved by the FWA or a later day specified in the agreement (s54, FW Act). 

Enterprise agreements will continue to operate after their nominal expiry date until they are terminated or replaced.

It is unlawful to engage or threaten to engage in any action with the intention of coercing a person to, or not to, make a collective agreement, or to approve or vary or terminate such an agreement. However, since 1993 the law has permitted and accepted that coercion in the form of  lawful industrial action may occur when agreements are being negotiated. To that end, industrial action by employers, employees and unions can be permitted and protected by the FW Act if it is applied towards the making and supporting of claims for a new agreement. Therefore, it is not unlawful to engage in protected industrial action. However, industrial action will only be protected if the procedures for protected industrial action in the FW Act are complied with (see: Chapter 3 Part 3-3 of the FW Act). (Also see: "Industrial Actions".)

Industrial Actions

An extensive discussion of the law of industrial action is beyond the scope of this chapter. Since 1993 there has been a right to engage in protected industrial action for the purposes of advancing and supporting claims in connection with a prospective workplace agreement.

Industrial action is a broad and defined term covering a range of activities engaged in by the parties to an industrial dispute. Most frequently, it is used to describe the activities of employees and their unions, and involves action taken to disrupt work. The action may take the form of strikes, a refusal to work as directed by the employer, or the imposition of a ban on certain activities, or some other limitation or restriction on work performed. On the employer side, industrial action usually takes the form of what is known as a lockout, which is action that prevents (or locks out) the employees from performing their work and receiving their usual remuneration.

Industrial action is dealt with by Chapter 3 Part 3-3 of the FW Act. The FW Act prescribes requirements for industrial action to be protected industrial action. Those requirements include the holding of a protected action ballot to determine whether employees wish to engage in particular protected industrial action for the proposed workplace agreement. No action lies against a party taking protected industrial action unless the action involves personal injury or wilful and reckless damage to property (s415).

Industrial action that does not meet the requirements of Chapter 3 Part 3-3 of the FW Act is not protected and is unlawful. In those circumstances, the FWA has the power to order that industrial action ceases (s418). Also, those who participate in such action may be subject to civil liability, including damages and injunctions.

Only industrial action that meets the definition in the FW Act is capable of being protected. Picketing has been held by the courts not to be industrial action. Accordingly, it cannot be protected. That said, peaceful protest outside an employer's property (which is often described as picketing) is in law just that, peaceful protest, and hence not unlawful.

Further Terms and Conditions for Negotiation in Individual Agreements

An individual agreement can take the form of a common law contract of employment. An individual employee negotiating an individual agreement is often at a disadvantage. Typically employees have less bargaining power than employers. Often they also have fewer resources, including knowledge of what they may be entitled to under other industrial instruments, such as awards or certified agreements or prevailing conditions with other employers. Following is a list of possible items for inclusion in negotiations for individual agreements.

1. Award/NES conditions

An employee should not agree to a term in an individual agreement that seeks to exclude or modify NES or award conditions without first obtaining advice (see: "National Employment Standards"). A term contained in a common law employment contract that purports to exclude or remove NES award conditions is not effective unless expressly authorised by a section of theFW Act. It is, however, recommended that advice be sought.

2. Overtime rates

Where overtime may be required to be worked, the rate or rates of pay applicable to the overtime hours should be specified.

3. Penalty rates

Some consideration should be given to an additional loading if the hours worked are outside ordinary business hours.

4. Flexi-time or time in lieu

As an alternative to overtime or penalty rates of pay, the parties may agree to some form of compensation for extra time worked beyond the agreed hours based on flexi-time or time in lieu.

5. Salary review

Another aspect which should not be overlooked is some form of salary or wage review, unless it is agreed that the salary should be fixed for the term of the agreement. Note that, in the case of ITEAs, once in force an ITEA can only be varied by means of the procedure set out in the WRA.

However, if the ITEA itself contains a procedure for review and adjustment, there is no need to resort to the variation procedure in the Act.

A scale of pay based on, for example, years of service, experience or acquired qualifications could be inserted in an agreement or award to avoid the need for variation. The risk in linking pay increases to improving economic conditions, such as a change in the consumer price index (CPI), is that the economic condition specified may not improve at a desirable rate.

6. Accident make-up pay

Changes to the workers compensation system (WorkCover) have substantially reduced the benefits payable to the majority of injured workers. Consideration should therefore be given to agreement on make-up pay in the event that the employee is injured and placed on WorkCover. "Make-up pay" is an amount making up all or some of the difference between the WorkCover payment and the normal time earnings. Typical provisions under pre-1996 awards provided for make-up pay to be payable in the first 26 weeks of absence from work because of injury sustained at work.

7. Allowances

It is not uncommon for an employee to incur expenses in the course of their employment, and under the old award system these expenses would be compensated for by way of an allowance. So, for example:

  • a meal allowance might be payable where the employee was required to work extensive overtime;
  • a tool allowance might be payable where the employee used their own equipment on the job, to compensate for the costs of its maintenance and replacement;
  • a uniform or protective clothing allowance might be payable where the employee was required to purchase and/or maintain these items;
  • a travel allowance might be payable to compensate for costs incurred when the employee was required to travel while carrying out duties on behalf of the employer; and
  • a vehicle allowance might be payable to compensate for vehicle wear and tear where the employee used their own vehicle while carrying out duties on behalf of the employer,
  • and so on. An employee who is likely to incur expenses of a similar nature in the course of their employment should not take reimbursement for granted, but should negotiate for specific payment to be included in the agreement.

Allowances can be dealt with in two ways: firstly as a fixed amount per day, week or event, and secondly by agreeing to reimburse for the actually expenses incurred.

8. Non-standard terms

There is scope to include terms in contracts that are non-standard. For instance, an employer may encourage its employees to ride bicycles to work, in which case a term of the agreement may be that the employer provides showers. Provided there is a connection between the content of the term and the employment relationship (and is not otherwise prohibited content) it may be included.

9. Leave

Any form of leave an employee may think desirable must be bargained for with the employer, unless it is a form of leave provided for under the NES or a form of leave that may be, and is, included in an applicable award.

There are many forms of leave, the significance and relevance of any particular form varies with the nature of the employment and the circumstances of the employee. For instance, an employee may be a member of the CFA and live in a fire prone area, in which case some form of fire-fighting leave may be necessary. Many employees are part-time tertiary students, in which case study leave may be necessary. Some examples follow:

  • blood donor leave;
  • fire-fighting leave;
  • leave for those who are Australian Defence Force reservists;
  • study leave;
  • unpaid leave;
  • leave to participate in union elections or decision-making bodies;
  • leave whilst serving as an elected union official;
  • additional annual leave;
  • jury service leave;
  • additional personal or compassionate leave, including the extension of the circumstances in which such leave may be taken; and
  • additional parental leave, including any part of parental leave that is to be paid.

As for jury service, unless specifically exempted, a person called for jury duty is compelled to attend, notwithstanding that the trial may run for many weeks or months. The allowance paid for attendance for jury duty ranges from $36 per day (for the first six days) to $72 (after the first six days) to $144 per day (where the trial exceeds 12 months). An employer cannot dismiss an employee called for jury duty. An employee dismissed for that reason should seek advice immediately. The Juries Act 2000 (Vic) requires the employer to make up any difference between the allowance and the employee's normal pay.

10. Ordinary hours

The NES in the FW Act contains a maximum hours or work standard. However, the maximum under the standard is capable of manipulation. Accordingly, employees would be advised to reach agreement on the number of hours to be worked each week, and identify when the hours are to be worked. With some industries moving to round-the-clock production, the employee should not make assumptions about the hours in which they will be called upon to work. Hours could be included in the agreement by reference to a roster or some other arrangement. Note the comments about penalty rates above.

11. Meal breaks and rest breaks

The WRA provides that an employer must not require an employee to work for more than five hours continuously without an interval of 30 minutes. Such a provision is not part of the NES or FW Act but is contained in modern awards. Such a provision can be incorporated into workplace agreements (collective or individual) to have certain application. Note that the parties may agree to a longer interval without a break.

While occupational health and safety legislation or regulations may apply to some classifications of work to provide for breaks from repetitive work, consideration should be given to the inclusion of rest breaks in the employment agreement.

12. Termination of the agreement

Issues of termination and redundancy are the most frequent sources of dispute, and should be carefully considered (see further: "Termination of employment").

13. Required termination period

The period of notice each party is required to give to the other to end the agreement or contract should be specified. In the absence of any specified period, the common law requires "reasonable notice", but this can be difficult to interpret in any given case. To avoid expensive legal battles, the parties should specify the period of notice required. The agreement should further confirm that normal wages are payable in lieu of notice.

In negotiating a period of notice issues such as the seniority and remuneration of the employee, the relocation or other personal commitments required by an employee to the new position (amongst other things) may indicate that a longer period of notice should be sought by the employee.

Note: The minimum notice periods in the NES (see: "National Employment Standards") now have a wide application to employees in the national system. As the period of notice specified in the NES is a minimum period, the parties are able to agree to include a contractual term for a greater period of notice.

14. Grounds for instant dismissal

Many employers seek to include in the contract a catalogue of events as "misconduct" warranting dismissal. That approach is generally not beneficial either to the employer, who may miss something off the list, or to the employee, who may be intimidated or resentful.

At common law, an employer may dismiss an employee without notice or wages in lieu of notice where the conduct of the employee is serious and justifies summary dismissal.

Examples of conduct justifying summary dismissal are: serious misconduct, incompetence, neglect of duty, wilful refusal to obey lawful and reasonable commands of the employer. Misconduct is active conduct of a serious nature that indicates that an employee rejects the contract of employment, for example, by repeated drunkenness, persistent absenteeism or dishonesty. The breaches must usually be substantial or persistent.

15. Redundancy

A redundancy arises where the duties performed by the employee are no longer required to be performed or are no longer required to be performed by that employee. The NES in the FW Act (see: "National Employment Standards") now provides for an employer to make a redundancy payment when an employee in the national system is terminated due to redundancy. Consideration should be given to whether a specific redundancy clause should be included which provides a more beneficial entitlement to the employee.

Prior to the commencement of the NES (on 1 January 2010) there was no general legal requirement that an employer pay a redundancy payment. An employer was only required to make such a payment if a specific obligation existed, usually in an award, collective agreement or contract.

16. Trade secrets and restraint of trade

Employers sometimes seek to include clauses in the contract to protect trade secrets, and to limit the use by an employee of skills and knowledge acquired during the period of employment. The enforceability of such clauses will depend very much on their terms and the circumstances of employment.

During the employment, the employee has a duty of fidelity to the employer and the employee would likely breach that duty if s/he provided vital trade secrets to a competitor, or carried on a business competing with their employer.

Clauses which limit where a person may work, or which impose a time limit during which the ex-employee may not carry on a similar business, or which limit the use to which certain information can be put (restraint of trade clauses) are considered unenforceable unless they go no further than is reasonably necessary to protect the employer's interests.

17. Dispute and grievance procedure

As indicated earlier (see: "What an agreement should contain", above), the FW Act makes it mandatory to include in a workplace agreement a procedure to settle or prevent disputes or grievances that arise during the life of the agreement.

An agreement may enshrine rights of representation for employees, subject to some qualifications. The agreement may entitle a trade union to represent an employee in a dispute or grievance procedure only if such rights are couched in terms of the employee's choice. For example, an agreement cannot contain a term that automatically requires the involvement of a trade union in a dispute or grievance procedure, and the agreement may not lawfully expressly exclude the involvement of a union. It is lawful though for the agreement to say that a union may represent an employee if that is the employee's choice.

18. Employer policy

An increasingly common term in individual agreements is one that expresses a term of the agreement as subject to the employer's policies. For example: "[the employee] will be paid an overtime allowance of $.... subject to [the employer's] policy".

A term cast in such a form provides the employer with an in-built means of changing the content of the term, or perhaps effectively excluding it, without the need to obtain the employee's consent. The words: "subject to policy" operate to qualify the term by reference to an external document or process that is solely within the control and discretion of the employer.

It is highly recommended that employees not agree to terms of this kind.

19. Superannuation

The Superannuation Guarantee Scheme was enacted by the Commonwealth Government in 1992 under the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth)  The scheme is intended to complement existing award superannuation entitlements which remain in force. Employers must meet the minimum levels of contribution to a superannuation fund as set out in the Superannuation Guarantee legislation.

Employers must contribute a minimum percentage of each employee's base earnings. The percentage rates have increased annually to an upper limit of 9% from the financial year 2002/03. There is a tax penalty for failure by an employer to make the contributions required by the legislation.

There are some exemptions from the scheme, including:

  • employees who earn less than $450 per month;
  • persons who are paid to do work of a domestic nature for not more than 30 hours per week;
  • employees under 18 years of age working 30 hours or less per week; and
  • employees over 70 years of age.

The legislation is administered by the Commissioner of Taxation, and the tax is calculated by the employer's self-assessment. The Commissioner enforces payment under Superannuation Guarantee legislation. Employees do not have a right to commence proceedings for the recovery of unpaid superannuation under Superannuation Guarantee legislation. Employees can make complaints to Australian Tax Office (ATO) about unpaid superannuation, which the ATO should investigate.

In addition to the minimum superannuation requirements referred to above, an employer and employee can agree that the employer pay more superannuation or can agree to a term of the contract that the employer will pay the Superannuation Guarantee legislation amount. There is no reason why such an agreement cannot be included in an individual agreement as a term. However, the additional obligation is not administered by the Commissioner for Taxation. It is enforceable in the same way as any other term of the individual agreement.

Whatever the source of the superannuation obligation, once it is paid by an employer as superannuation into the employee's nominated fund the employer's contributions are not available to the employee until he or she reaches the age of 55, with limited exceptions.

Legislation has come into effect which increases the Superannuation Guarantee percentage progressively from 2013 until it reaches 12% in 2020. The first increase is to 9.25% on 1 July 2013 and the second increase is to 9.5% on 1 July 2014.

Enforcement of Entitlements Under Workplace Agreements, Awards, National Employment Standards and Contracts

An employee who has a dispute with an employer concerning an entitlement under a statutory agreement, a common lawemployment contract or the relevant award should first raise the matter with the employer, or ask their union to do so. The most common disputes relate to non-payment, or underpayment, of wages or another monetary amount. If the matter is not resolved, the following steps could be considered.

Prosecution

The FW Act empowers inspectors to investigate breaches of awards and agreements. Inspectors are appointed by the Fair Work Ombudsman under section 700 of the Act. If, on investigation, the inspector considers that there has been a breach of the agreement or award, they will usually attempt to get the employer to rectify it. If the employer fails to rectify the breach, the inspector may then prosecute the employer.

The legislation protects employees from any discriminatory action by an employer as a result of an employee making a report about breaches of employment conditions. Underpayment of wages, or non-payment, is considered to be a breach.

Civil proceedings

Breach of Award or Agreement

A union or individual employee covered by the NES (see: "National Employment Standards"), a Federal Award, enterprise agreement or collective agreement may bring proceedings for a penalty, the recovery of money due and payable under the award or agreement (ss444550539 & 540 FW Act). The proceedings may be brought in the state Magistrates' or County Courts, the Federal Circuit Court or in the Federal Court of Australia.

Proceedings for an injunction to stop or remedy the effects of a breach may only be brought in the Federal Circuit Court or the Federal Court (s545). The FW Act established a Fair Work division of both the Federal Court and the Federal Circuit Court from 1 January 2010.

The FW Act imposes maximum penalties, with higher penalties for corporations than for individuals.

A party who breaches an AWA may be liable in damages to the innocent party for the breach and may be ordered to pay a civil penalty and interest. Further, the innocent party can obtain an injunction requiring the other party not to, or cease to, contravenethe AWA.

The general rule about proceedings brought under the FW Act is that the parties bear their own legal costs, except where it can be shown that the proceedings were brought vexatiously, or without reasonable cause, or that the party's unreasonable act or omission caused the other party to incur costs, or that the other party unreasonably refused to participate in a matter before FWArelated to the matter in which costs were sought (s570).

Proceedings may be brought up to six years from the date payment became due.

Breach of Contract

An employee whose employment is governed by a common law contract can take action to recover wages as a contractual debt. The employee sues on the basis of the terms and conditions of the contract of employment and in this way can recover over-award payments or payments in excess of the award entitlement. The employee can also proceed in this manner to recover the amount provided for in an award where a term of the contract of employment was that the employee would receive the amount payable under an award.

Proceedings for the recovery of a contractual debt are commenced in either a state Magistrates' Court, the County Court or the Supreme Court, depending on the amount in dispute. The time limit is six years. If no wage rate is fixed or agreed, the employee can sue for a reasonable price for the services rendered once the contract has been terminated.

Termination of Employment

Most claims in relation to termination of employment fall into three categories:

  • unfair dismissals under the FW Act;
  • dismissals otherwise prohibited under the FW Act; and
  • common law claims for wrongful dismissal.

This section will deal with unfair dismissals and common law claims for wrongful dismissal.

The "General Protections" section of this chapter deals with dismissals that are otherwise prohibited under the FW Act.

This chapter does not deal with claims under other legislation relating to termination of employment, such as equal opportunity legislation.

Unfair dismissals

Since 1 July 2009 a new system of unfair dismissals has been in operation.

A person has been "unfairly dismissed" under section 385 of the FW Act if all of the following apply:

  • the person has been dismissed; and
  • the dismissal was harsh, unjust or unreasonable; and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • the dismissal was not a case of genuine redundancy.

The person must be protected from unfair dismissal to be eligible to apply for a remedy for unfair dismissal.

Harsh, Unjust and Unreasonable

In considering whether a termination was harsh, unjust or unreasonable, the following must be considered (s387, FW Act):

  • whether there is a valid reason for the dismissal connected with the employee's capacity or conduct;
  • whether the employee was notified of the reason relied on by the employer;
  • whether the employee was given an opportunity to respond to the allegations made in relation to the employee's conduct or performance;
  • any unreasonable refusal of the employer to allow the employee a person to assist in discussions related to the termination;
  • if the termination related to performance, whether warnings were given;
  • the degree to which the size of the employer impacted upon the procedures followed in effecting the termination; and
  • the degree to which the absence of dedicated human resource management specialists impacted upon the procedures followed in effecting the termination,
  • as well as other relevant matters.

Case study

In Woodman v the Hoyts Corporation [2001] AIRC 694; (2001) 107 IR 172 (no longer available free online), a full bench of the AIRC reinstated a casual cinema worker who was accused of allowing another off-duty employee to take a company product from the Candy Bar without paying and later lying about the incident. The full bench found that the employee's conduct amounted to a valid reason for termination but that termination in all the circumstances of the case was disproportionate. The employee had not himself participated in the theft and the lie was not premeditated or intended to benefit the employee himself. The AIRC was satisfied "in all the circumstances" that reinstatement was appropriate.

Has the Person Been Dismissed?

For the purpose of section 385 of the FW Act, the person has been dismissed if they were terminated at the initiative of the employer or they were forced to resign because of the conduct or course of conduct of the employer (s386).

A person will not be dismissed, for the purpose of the unfair dismissal provisions, if:

  • they were employed under a contract of employment for a specified period or specified task or specified season and the employment ended at the end of the period, task or season;
  • they were employed under a training arrangement for a specified period or for the period of the training and the employment ended at the end of the training; or
  • they were demoted but the demotion does not involve a significant reduction in their remuneration or duties (s386).

If the person has not been dismissed they would not be able to make out the necessary elements of section 385 of the FW Act for the termination to be an unfair dismissal.

Small Business Fair Dismissal Code

The Minister for Workplace Relations has declared a Small Business Fair Dismissal Code under section 388(1) of the FW Act. A person's dismissal will be consistent with the Code if the employer was a small business employer at the time of the dismissal and the employer has complied with the provisions of the Code in relation to the dismissal (s388, FW Act).

From 1 January 2010, the definition of "small business employer" is a business with less than 15 employees by head count.

The code states that a dismissal will be fair where an employer dismisses an employee where the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Therefore, under the Code, an employer does not need to prove the misconduct actually occurred.

If the employer is a "small business employer" and the employer complied with the provision of the code, the termination will bedeemed to be fair and the elements of an unfair dismissal required for section 385 will not be made out.

If the employer is not a small business employer or a small business employer has not complied with the code in terminating the employee, then the dismissal will not be consistent with the Small Business Fair Dismissal Code and the necessary element of section 385 will be made out.

Genuine Redundancy

A person's dismissal will be a genuine redundancy if both of the following requirements are met (s389, FW Act):

  • the person's employer no longer requires the person's job to be done by anyone because of changes in operational requirements; and
  • the employer in dismissing the employee complied with any consultation obligations in a modern award or enterprise agreement.

Under section 389(2) of the FW Act it would not be a genuine redundancy if it was reasonable to redeploy the person within the employer's enterprise or an associated entity.

If a person's dismissal was found to be due to a genuine redundancy, the person would not be able to make out the required element of section 385 of the FW Act for the dismissal to be an unfair dismissal.

Persons Protected From Unfair Dismissal

To make an application for unfair dismissal the person making the application must be protected from unfair dismissal. Under sections 382 to 384 of the FW Act, a person is protected from unfair dismissal if the following applies to them:

  • The employee has completed a minimum period of employment of:
    one year for an employee of a small business employer (as defined above);
    six months for an employee of a business other than a small business employer.

AND

  • One of the following applies to the employee at the time of termination:
    the employee was covered by a modern award; or
    the employee was covered by an enterprise agreement; or
    the person's income was less than the high income threshold, currently $123,300.

AND

  • If the person was a casual employee of a business other than a small business employer and was employed on a regular and systemic basis for more than six months, and the employee had a reasonable expectation that such employment would continue.

If the person was a casual employee of a small business employer and was employed on a regular and systemic basis for more than one year, and had a reasonable expectation that such employment would continue.

Remedies

The primary remedy for a dismissal found to be harsh, unjust or unreasonable is to reinstate the employee to the same position or to a comparable position as they held prior to the termination. FWA has the power in certain circumstances to reinstate a worker to an equivalent position with an associated entity of the employer. A reinstated worker can seek an amount representing their lost wages between the date of termination and the reinstatement, and to have all employment benefits continue to accrue without loss of continuity.

Where reinstatement is inappropriate (for example, where the position has been filled by another worker or where tensions in a small workplace would be insurmountable if the dismissed employee returned to work), compensation may be ordered instead of reinstatement. The maximum compensation payable to employees covered by an award is six months wages; and for non-award employees is half the amount of the high income threshold (discussed above in "Persons protected from unfair dismissal") or six months wages, whichever is less.

Procedural Matters

Applications for a remedy for unfair dismissal must be made within 14 days after the day on which the termination took effect, or such period as FWA allows (s394, FW Act). The matters to be taken into account for an extension of time to lodge an application have been codified in section 394(3) of the FW Act. Importantly, the applicant must show that there were exceptional circumstances.

A number of matters must be decided by FWA before the merits of an unfair dismissal are considered. These matters are:

  • whether the application was made within 14 days or such further period as FWA allows;
  • whether the person is protected from unfair dismissal;
  • whether the dismissal was consistent with the Small Business Fair Dismissal Code;
  • whether the person was dismissal because of genuine redundancy.

The first step for a worker who applies for a remedy for unfair dismissal is usually a conciliation conference with the employer at the AIRC. If the matter is not resolved at that stage, it then usually proceeds by way of arbitration. The FW Act gives FWA considerable discretion in relation to the method of finalising the claim.

Appeals to a Full Bench of FWA can be made where there has been an error of law or a significant error of fact.

Costs against a party in an unfair dismissal can only be awarded against an Applicant if an application was made vexatiously or without reasonable cause, or if it should have been apparent to the Applicant that the application had no reasonable prospect of success. Costs will only be awarded against a Respondent if the response to an application was made vexatiously or without reasonable cause, or if it should have been apparent to the Respondent that the response had no reasonable prospect of success (s611, FW Act)

Costs can be awarded against a lawyer or paid agent where they caused the other party to incur costs by some unreasonable act or omission or because they encouraged a person to start or continue a matter when it should have been apparent to them that the person had no reasonable prospects of success (s401).

Common law

Wrongful Dismissal at Common Law

Workers who are not entitled to bring proceedings for unfair dismissal may still be entitled to bring proceedings elsewhere for the wrongful termination of their contract of employment.

If the contract is for a fixed period, it terminates when that period expires; no special notice is required. If the contract is for a fixed period and the contract is terminated by the employer before the end of the fixed period, the employee maybe able to sue fordamages relating to the remainder of the fixed period.

If the contract is not for a fixed period, and the employee is dismissed, or if the employee is dismissed prior to the end of the contract, then there may be an action for wrongful dismissal. In the absence of misconduct or any other circumstances justifying immediate dismissal, the employee is entitled to be given notice in accordance with the written contract of employment (if any), or if there is no express term for the period of notice the employee would be entitled to rely upon an implied term of reasonable notice. The question of what is reasonable will depend on the circumstances (including position, seniority, salary, length of service and age).

An employee who can show that the dismissal was wrongful has a claim for damages. The amount of damages may relate to the wages that could have been earned during the "reasonable" period of notice, taking into account whether the employee has subsequently found work.

Suspension and Stand Down of Employees

Unless specifically authorised by an award or employment agreement, an employer has no general right to suspend employees without pay, but an employee who is not ready, willing and able to work in accordance with the obligations under the contract of employment may not be entitled to be paid.

At common law, an employer does not have the right to stand down employees without pay when they cannot be usefully employed. Unless there is some provision in the contract of employment or award to the contrary, an employer who cannot usefully employ their employees has the alternative of either paying them wages during the period or dismissing them. In dismissing an employee in these circumstances, the employer should take careful note of the unfair dismissal provisions (see: "Unfair dismissals", above).

Some awards permit deductions of pay where employees cannot be usefully employed for reasons such as a strike, a breakdown of machines or a stoppage of work for which the employer cannot reasonably be held responsible.

General Protections

Under the heading "Rights and responsibilities of employees, employers, organisations etcPart 3-1 of the FW Act sets out what it describes as "General Protections". Those general protections encompass some matters formerly contained in the WRA but dealt with under separate parts (for example freedom of association, unlawful termination and coercion with respect to the making of a workplace agreement).

The Explanatory Memorandum to the FW Act describes the purpose of the general protections as ensuring "fairness and representation at the workplace by recognising the right to freedom of association and preventing discrimination and other unfair treatment". The Explanatory Memorandum also makes it clear that Part 3-1 is intended to rationalise, but not diminish, those protections formerly contained in the WRA.

The general protections are relevantly divided into workplace rights, industrial activities, and other protections.  The protections relating to workplace rights broadly include employment entitlements and the freedom to exercise and enforce those entitlements. The protections relating to industrial action broadly include the freedom to be or not to be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association. The other protections include the taking of adverse action, including dismissal of employees for a range of reasons including their race, colour, sex, age, marital status and other matters. The protections are dealt with separately below.

Workplace rights

One protection provided for by Part 3-1 of the FW Act is a prohibition on a person taking adverse action against another person because the other person:

  • has a workplace right; or
  • has, or proposes to, exercise a workplace right (s340).

"Workplace right" is defined by the FW Act (s341(1)) as including:

  • the entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
  • initiating, or participating in, a process or proceeding under a workplace law or workplace instrument; or
  • the ability to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument or an inquiry in relation to the person's employment.

The FW Act also defines a "process or proceedings under workplace law or workplace instrument" as including:

  • court proceedings;
  • protected industrial action;
  • a protected action ballot; and
  • making, varying or terminating an enterprise agreement and other matters (s341(2)).

"Adverse action" is defined by section 342 of the FW Act. That section sets out a table describing the relevant "adverse action" depending on the different relationships between the relevant parties. If the adverse action is taken by an employer against an employee the adverse action includes:

  • dismissing the employee; or
  • injuring the employee in his or her employment;
  • altering the position of the employee to the employee's prejudice; or
  • discriminating between the employee and other employees of the employer.

Some of the protections provided for by the division dealing with workplace rights (Part 3-1, Div.3) provide more extensive protection than existed under the WRA. For example, the WRA provided protection against action being taken against officers or delegates of an industrial association. Section 341(1)(a) of the FW Act protects persons having a "role or responsibility" under a workplace law, workplace instrument or order made by an industrial body.

Industrial activities

Part 3-1 of the FW Act (s346) also provides that a person must not take adverse action against another person because the other person:

  • is or is not, or was or was not, an officer or member of an industrial association;
  • engages, or has at any time engaged or proposed to engage, in industrial activity;
  • does not engage, or has not at any time engaged or proposed to not engage in industrial activity.

This section provides protection against adverse action taken by reason of a person being an officer or member of an industrial association, or not being an officer or member of an industrial association and taking or not taking industrial action as defined by section 347 of the Act.

Engaging in industrial action is defined by the FW Act to include:

  • organising or promoting lawful activity for an industrial association; and
  • representing or advancing the views, claims or interests of an industrial association and taking part in industrial action.

"Adverse action" may include dismissing the employee, injuring the employee, altering the position of employee to the employee's prejudice or discriminating between the employee and other employees of the employer (see above).

Other protections

Part 3-1 of the FW Act also provides for what were formerly described as "unlawful terminations" (under Div.4 of the WRA).

Section 351 of the FW Act prohibits discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Like the WRA, the FW Act prevents termination on one or more of those grounds. However, the FW Act extends the protection by prohibiting not just termination, but any "adverse action".

Section 352 of the FW Act prevents termination of an employee on the grounds of the employee's temporary absence for illness or injury. That section prohibits only termination on that ground and not any other adverse action.

Compliance and remedies

The FW Act provides a new procedural regime for the commencement of any proceedings alleging a breach of the general protections. Section 365 (read with s371) provides that a person alleging a contravention of Part 3-1 must apply to FWA for it to deal with the dispute (unless an interim injunction is sought). Section 366 provides a time limit of 60 days after any dismissal in breach of the general protections for the making of such an application. Section 369 of the FW Act provides for FWA to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. This certificate is necessary prior to any court application in relation to the alleged breach of the general protections.

Under section 371 of the FW Act, a general protections court application must be made within 14 days after the certificate issued by FWA.

Applications alleging a breach of the general protections may be commenced by industrial associations if the industrial association is affected by the contravention, or the person affected is a member, or entitled to be a member, of the industrial association.

The remedies for a breach of the general protections are set out in Part 4-1 of the FW Act. The range of penalties that may be imposed start from $3,300 for an individual to $33,000 for a body corporate (which includes an industrial association). The FW Act also provides that orders may be made by a court on application to it. The court may make orders:

  • granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
  • an order awarding compensation for loss that a person has suffered because of the contravention; or
  • an order for reinstatement of a person.

Wage and Employment Records

An employer is only allowed to deduct income tax, orders for attachment of earnings made by a court, or other deductions that have been authorised by the employee. An employer is not compelled to make requested deductions, however, and may refuse, for example, to pay union dues by automatic deduction. The employee may withdraw an authority at any time by making a written request to the employer.

Under the FW Act and Fair Work Regulations 2009 (see: Part 3-6 of the Regulations) an employer must give the employee a payslip showing:

  • the employer's name and ABN number;
  • the employee's name;
  • the date of payment;
  • the period to which the payment related;
  • ordinary hourly rate and the number of hours worked at that rate (if paid an hourly rate);
  • any special hourly rates (e.g. overtime) and number of hours at that rate;
  • rate of annual salary;
  • gross and net amounts;
  • allowances; and
  • superannuation contributions and fund.

An employer is required to keep certain employment records. An employer is required to keep a record of employees, specifying:

  • whether full-time or part-time;
  • whether permanent, temporary or casual;
  • the gross and net amounts paid;
  • any guarantee of earnings;
  • overtime worked;
  • rate of remuneration;
  • leave entitlements;
  • superannuation contributions; and
  • if terminated, how.

A copy of the record must be given to the employee to whom the record applies, on request.

Contacts and Resources

Work Place Standards Tasmania

http://workplacestandards.tas.gov.au/home

Workplace Standards may be contacted by:

Shop Fronts

Rosny Park - 30 Gordon's Hill Road

Launceston - 3rd floor, Henty House, 1 Civic Square

Burnie - 3rd floor, Reece House, 46 Mount Street

Phone

1300 366 322 (within Tasmania)
(03) 6233 7657 (outside Tasmania)

Fax

(03) 6233 8338

Email

wstinfo@justice.tas.gov.au

Postal address

Workplace Standards
PO Box 56
ROSNY PARK TAS 7018

Speak and Listen users

Phone 1300 555 727 then ask for 1300 135 513

TTY users

Phone 133 677 then ask for 1300 135 513

National Relay Service

Internet relay users connect to the NRS www.relayservice.com.au then ask for 1300 135 513

Tasmanian Trade Unions

A list of Trade Unions in Tasmania is provided on the Tasmanian Government website

Fair Work Ombudsman

http://www.fairwork.gov.au/

There is also a Tasmania specific section on the website.

Send complaint form(s) to:

Fair Work Ombudsman Complaints Assessment Team
GPO Box 2567
Adelaide SA 5001
Fair Work Online
Tel: 13 13 94

Office of the Anti-Discrimination Commissioner, Tasmania

For discrimination or sexual harassment issues in the workplace, see: http://www.antidiscrimination.tas.gov.au/ 

Workplace Health & Safety (WHS)

Acknowledgments

Many thanks to Samantha Clarke who co-authored this chapter.

Work Safety - a general overview

There are extensive materials on work place safety available on the Worksafe Tasmania website. These materials cover topics from asbestos removal to volunteers. There is also general information on duty of care, consultation changes, health and safety representatives, discriminatory conduct, offences and penalties, regulators and inspectors.

This chapter provides an overview of the area of Work Place Health and Safety law. For more in depth information that that provided here, please go to the Worksafe website, where a number of information sheets have been generated to provide general fact sheets and guides, interpretative guidelines, Codes of Practice, and guides to the work health and safety legislation and regulations.

Work Place Health and Safety is covered by a variety of statutes. The primary Tasmanian legislation is the Work Health and Safety Act 2012, however there are a number of pieces of legislation that apply in Tasmania and are administered by WorkSafe Tasmania. The Tasmanian Act is harmonised with the national legislation.

For resources on work place safety please consult the following:

Guide to the Work Health and Safety Act 2012

Guide for Tasmania's Rural Industry

Volunteers Fact Sheet

 

 

Worksafe Tasmania

WorkSafe Tasmania is an amalgamation of Workplace Standards and WorkCover Tasmania and is responsible for regulating workplace standards.  Its aim is to reduce workplace related injury, disease, and death through better safety and health procedures, and the regulation of the rehabilitation process in the event of an accident. WorkSafe Tasmania also aims to engage with the community and provide all the information needed for workplaces: health and safety information, wellbeing guidance, long service leave advice, and information on holidays. The Code of Practices for industries and work types are not summarised here, as information on these Codes is best read at the source.  

The WorkSafe Regulations relevant to employer obligations may be accessed through the WorkSafe Tasmania website.

Duties of PCBUs and officers

The Work Health and Safety Act (WHS Act) uses the term 'person conducting a business or undertaking' (PCBU) in place of employer. 

The bulk of this section is reproduced from the Guide to Work Health and Safety Act 2012.

The WHS Act covers: „

  • people who carry out work in any capacity for a PCBU including workers,
  • contractors,
  • subcontractors,
  • self-employed persons,
  • outworkers,
  • apprentices and trainees,
  • work experience students and
  • volunteers who carry out work „
  • other people at a workplace like visitors and customers at a workplace.

The WHS Act does not cover volunteer associations that do not employ anyone.

DUTIES OF PCBUs

Multiple and shared duties (sections 14–16)

A person may have more than one duty. For example, the working director of a company has duties as an officer of the company and also as a worker. A duty cannot be transferred to another person. More than one person may have the same duty, and in this situation, each person retains responsibility and must discharge their duty to the extent to which they have the capacity to influence and control the matter, disregarding any attempts to ‘contract out’ of their responsibility.

Example

A labour hire company hires out its employees to host employers to carry out work for them. Both the labour hire company and the host employer owes a duty of care to those employees. In such cases both are fully responsible for meeting that duty to the extent to which they have capacity to influence and control the matter. It is not possible to ‘contract out’ work health and safety duties.

Example

A principal contractor and a subcontractor for construction work must ensure, so far as is reasonably practicable, the provision of adequate facilities for the welfare of the workers carrying out the construction work. This does not mean that both are responsible for providing the facilities. One may provide the facilities with the other duty holder satisfying themselves that their duty is met because the facilities provided by the other duty holder fulfil their obligations.

Duties of a PCBU Primary duty of care (section 19)

All PCBUs must ensure, so far as is reasonably practicable, the health and safety of: „ workers engaged, or caused to be engaged by the PCBU „ workers whose activities in carrying out the work are influenced or directed by the PCBU, while workers are at work in the business or undertaking. This primary duty of care requires duty holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not reasonably practicable, risks must be minimised so far as is reasonably practicable. PCBUs owe a similar duty of care to other people who may be at risk from work carried out by the business or undertaking. A self-employed person must ensure their own health and safety while at work, so far as is reasonably practicable.

In detail

Under the primary duty of care a PCBU must ensure, so far as is reasonably practicable: „

  • the provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplace „
  • the provision and maintenance of plant, structure and systems of work that are safe and do not pose health risks (for example providing effective guards on machines and regulating the pace and frequency of work) „
  • the safe use, handling, storage and transport of plant, structure and substances (for example toxic chemicals, dusts and fibres) „
  • the provision of adequate facilities for the welfare of workers at work (for example access to washrooms, lockers and dining areas) „
  • the provision of information, instruction, training or supervision to workers needed for them to work without risks to their health and safety and that of others around them „
  • that the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the business or undertaking „
  • the maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises. 

Duty to consult, cooperate and coordinate (sections 46–49)

With other duty holders Duty holders with shared responsibilities must work together to make sure someone does what is needed. This requires consultation, cooperation and coordination between duty holders.

For example, there may be a number of different duty holders involved in influencing how work is carried out (that is suppliers, contractors and building owners). If more than one person has a health and safety duty for the same matter, they must consult, cooperate and coordinate activities, so far as is reasonably practicable, in relation to the matter. Each must share health and safety information in a timely manner and cooperate to meet their shared health and safety obligations.

The duty to consult does not require agreement, although each duty holder retains responsibility for discharging their health and safety duty.

With workers and their representatives

Each PCBU must, so far as is reasonably practicable, consult with workers and HSRs (if any) about matters that directly affect them. This duty extends to consulting with all kinds of workers not just the PCBU’s own employees, including any contractors and their workers, employees of labour hire companies, students on work experience, apprentices and trainees.

Duty of PCBUs with management or control of workplaces

A PCBU with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace and anything arising from the workplace does not put at risk the health or safety of any person.

Duty of PCBUs with management or control of fixtures, fittings or plant at workplaces

A PCBU with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant do not put at risk the health and safety of any person. A PCBU that installs, erects or commissions plant or structures must ensure all workplace activity relating to the plant or structure (including its decommissioning or dismantling) is, so far as is reasonably practicable, without risks to health and safety.

DUTIES OF OFFICERS (section 27)

Officers of corporations and other organisations must manage corporate risks — including work health and safety risks. An officer of a PCBU must exercise due diligence to ensure the PCBU complies with its health and safety duties. This duty relates to the strategic, structural, policy and key resourcing decisions; that is, how the place is run. Due diligence includes taking reasonable steps to: „

  • acquire and keep up to date knowledge on work health and safety matters „
  • understand the nature and operations of the work and associated hazards and risks „
  • ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety „
  • ensure the PCBU has appropriate processes to receive and consider information about workrelated incidents, hazards and risks, and to respond in a timely manner „
  • ensure the PCBU has, and implements, processes for complying with its duties and obligations (for example, reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures HSRs receive training entitlements) „
  • verify the provision and use of the relevant resources and processes.

An officer may be charged with an offence under the WHS Act whether or not the PCBU has been convicted or found guilty of an offence under the Act. For further information refer to the interpretative guideline on officers available on the Work Safe Australia website

 

Duties of Employees and others

Duties of workers (section 28)

While at work, workers must: „ take reasonable care for their own health and safety and that of others who may be affected by their actions or omissions „ comply, so far as they are reasonably able, with any reasonable instruction given by the PCBU to allow the PCBU to comply with WHS laws „ cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Duties of other people at the workplace (section 29)

Similar duties apply to other people at a workplace, such as customers and visitors. They must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. They must also comply, so far as they are reasonably able, with any reasonable instruction that is given by the PCBU to comply with WHS laws.

 

Workers' Compensation

Workers Rehabilitation and Compensation Act 1988 (Tas)

The Workers Compensation Act 1927 (Tas) covers those who have been injured at work prior to the 15th November, 1988. This Act has been repealed, and replaced with the Workers Rehabilitation and Compensation Act 1988 (Tas), which applies to all those persons injured at work after the 15th of November 1988. However, the Workers Compensation Act 1927 continues to apply for workplace injuries before this date (s4(4) of the 1988 Act).

If a person is seeking to begin an action under the 1927 Act, it is best to seek legal advice.

Employees of the Commonwealth Government are covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988 (Cth), and members of the Defence Forces are covered by the Military Rehabilitation and Compensation Act 2004 (Cth). Only the Safety, Rehabilitation and Compensation Act is discussed here, and only briefly.

To obtain compensation, it is not necessary to prove fault or negligence by the employer, and there are only limited circumstances where employees' own acts will deprive them of compensation.

Compensation is payable to ‘workers’. ‘Worker’ means any person who works under a contract of service or training with an employer.

The Act does not apply to:

  • persons covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988;
  • employees whose employment is of a casual nature and who are employed otherwise than for an employer's trade or business;
  • outworkers;
  • a domestic servant who has not completed 48 hours of employment at the time of injury; or
  • a member of a crew of a fishing boat remunerated wholly or mainly by a share in the profits of the boat.

Police officers are covered under the Act. The Act does not cover persons who are contestants in sporting activities except in very limited circumstances (s7) but may apply to clergymen in some circumstances and to volunteer firefighters and ambulance officers.

The Act set up a system of compulsory insurance. All employers must insure with an insurer. There are limited rights available to employers to become self-insurers, but only the largest employers can usually do this. If an employer is uninsured, an injured employee may claim against the Nominal Insurer, a scheme to which all participatory insurers contribute. The Nominal Insurer is then entitled to recover from the employer the amount of any compensation paid.

Definitions

The definition of ‘worker’ prevents employers pretending that workers are really contractors. The Act says that where the employer employs a contractor to perform work of more than $100 and the work is not part of a more general trade or business carried on by the contractor in the contractor's own name, then the contractor is deemed to be an employee (s4B). However if the person has taken out their own personal injury insurance they are to be treated as an independent contractor.

The definition of injury includes a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease (s3).

The Commonwealth Acts

The Safety Rehabilitation and Compensation Act 1988 (the Commonwealth Act) covers Commonwealth employees, the Military Rehabilitation and Compensation Act 2004 (Cth) covers members of the Defence Force who are injured at work if the injury results in death, incapacity for work or impairment.

Employees of the Commonwealth government of Australia, or a prescribed authority of the Commonwealth (such as Telstra) can claim workers compensation against the Commonwealth. The rights are similar to those available at state level – weekly payments, lump sums for permanent impairment, medical and other expenses, death benefits, rehabilitation and access to common law damages.

The procedure to be followed is as follows: the worker must lodge a claim form with their employer. The employer passes this on to Comcare, or in the case of a licensed authority, such as Telstra, this is a matter handled internally. The matter is then investigated and a determination is made.
A determination can either be an acceptance or denial of liability. An acceptance will lead to a calculation of the compensation payable. A denial may result in the termination of any payments that were being made, or the rejection of any other associated claims, such as a lump sum or death benefit claim.

Two avenues of appeal are available. An employee may request a reconsideration from Comcare or the licensed authority. If the rejection is affirmed, then the worker has recourse to the Commonwealth Administrative Appeals Tribunal.

As with state compensation, it is recommended that a person seek legal advice from a legal representative recommended or employed by their trade union, or a legal representative of their own choosing.

When Is Compensation Payable?

Under the Workers Rehabilitation and Compensation Act 1988 (Tas) a worker is entitled to compensation if they suffer an injury, not being a disease, arising out of and in the course of their employment, or a worker who suffers an injury that is a disease, arising out of and in the course of their employment, and to which their employment contributed to a substantial degree. The Act therefore covers all injuries and diseases arising out of, and in the course of, employment provided the employment was a substantially contributing factor.

The 1988 Act was intended to overcome the problem under the 1927 Act where a worker was not entitled to compensation in respect of a disease, (particularly industrial deafness), unless the worker was disabled for work. Section 73 does not exclude a worker from compensation where the worker has not lost any earning capacity. It is the deafness itself that is compensated.

There is a Schedule of diseases in the Act (Schedule 4) which provides that, if a worker has been employed in work of a type referred to in the Schedule, it will be presumed, in the absence of evidence to the contrary, that the disease arose out of and in the course of employment, and that the employment contributed to a substantial degree to that disease. For example it will be presumed that pneumoconiosis caused by silica dust was caused by work involving exposure to inhalation of silica dust.

Some comment should also be made on the phrase ‘arising out of or in the course of employment’. This covers an injury caused by or connected with work. Compensation is not restricted to injuries that happen whilst an employee is working, but is payable for injuries occurring in circumstances related to the job. Thus, where an employee is injured while doing something that an employer could reasonably have expected or anticipated or authorised the employee to do, such an injury may be said to have occurred ‘in the course of employment’. The Act specifically provides that an injury is deemed to have occurred arising out of or in the course of employment if it occurs in the following circumstances:

  • where the accident occurs when a worker engaged in port or harbour operations attends an arranged place for the purpose of being selected and engaged in employment;
  • while a worker on any working day has attended their place of employment pursuant to the contract of employment and is present at their place of work.

If a worker is injured in a motor vehicle accident whilst travelling to or from work they are entitled to the same compensation from MAIB as any other citizen pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973 (Tas); but they are not entitled to workers compensation.

Death

Section 67 of the Workers Rehabilitation and Compensation Act 1988 (Tas) provides that if a worker dies as a result of a work injury leaving dependants wholly dependent upon them, their dependents will receive an amount reflected in 415 units. Partially dependent spouses or children will be compensated at no more than 415 units, in accordance with what is reasonable and proportionate in the circumstances – to be determined by the Tribunal.

A de facto wife or husband is regarded as a dependent if s/he has lived with the worker in a permanent and bona fide domestic relationship for not less than three years immediately preceding the death of a worker.

A spouse or caring partner will also receive weekly payments in case of death, at the same rate as the deceased worker would have received if the worker had been totally incapacitated. A dependent child is entiteld to weekly payments determined on the basis of 15% of the basic salary, beginning at 13 weeks after the date of death.

The spouse will receive payments for two years after the date of death at the following rates:

  • 100% for the first 26 weeks following the date of death;
  • 90% for the weeks 26 through to 78 weeks
  • 80% from the period 78 weeks to 2 years.

The reasonable funeral and burial costs of a worker will be paid by the employer (s75(1)(b)).

Incapacity for Work

Where a work-caused injury or disease results in incapacity for work, weekly compensation benefits are payable during the period of incapacity. Incapacity may be total or partial.

Total incapacity for work is where a worker is unfit for any work for which they are qualified. Where a worker is fit for some form of work for which they are qualified, but not all such work, they are partially incapacitated.

Determination of Impairment

Workers who claim for partial and permanent impairment are also assessed under the same American Medical Association tables and the worker must have more than a 5% whole person impairment before they can make a claim (s71). Under 5% no compensation is paid. From 5% - 70%, there is a formula for the amount compensated. Over 70%, compensation is 415 units.

The Act enables an employer more than 12 months after the worker started receiving payments, to serve a notice on the worker requiring them to commence action for damages. If they do not do so within the time set, this will extinguish any future claim (s136).

There are guidelines that apply before and after 1 April 2011. The guidelines for claims after 1 April 2011 and the guidelines for before 1 April 2011 are both available online.

When Compensation is NOT Paid

A worker will not be entitled to compensation if the injury is a result of their own serious and wilful misconduct (s25(2)(a)). In practice it is not usually difficult to prove that misconduct has been serious, but it is difficult to demonstrate that the action was wilful or deliberate. This defence is unavailable if the injury has resulted in serious and permanent disablement, or in death.

Common Law Entitlements

The right to obtain damages at common law has been substantially reduced because the worker can only get common law damages if they have suffered not less than 20% impairment of their whole body (s138AB). That level of impairment is to be determined by using guides from the American Medical Association Assessment of Impairment Tables (4th Edition) as modified by the Work Cover Board.

Claiming Compensation - What and How

Forms of Compensation

When an employee is injured at work there are two remedies available, depending on the circumstances. They are:

  • workers compensation benefits; and
  • the right to claim damages.

Sometimes both remedies are available, but the employee will only be able to keep one form of benefit and will have to refund (with certain limited exceptions which will be discussed) any other benefits that were received.

Social security payments may also be available pending the resolution of disputed workers compensation and damages claims, but these too may have to be refunded.

How to Claim

An injured worker must notify the employer either verbally or in writing of the accident as soon as possible and before the worker has voluntarily left employment (s32Workers Compensation and Rehabilitation Act 1988 (Tas)). Notice may be given after the worker has voluntarily left employment where the injury is one contracted by gradual process (s80).

While the claim for compensation must be made within six months of the accident, failure to make a claim within six months or to give notice of the injury will not be fatal if the failure resulted from mistake (but not ignorance) or other reasonable cause.

Usually the employer will require the employee to complete a claim form, and will submit that to the insurance company together with a form completed by the employer. The insurance company will then investigate the claim. It may use an investigator to assess the circumstances of the accident and to obtain medical evidence. The failure of a worker to cooperate with the insurance company to obtain medical certificates from the doctors who have treated them, will result in delays in dealing with the claim. A claim for compensation shall be in the prescribed form and accompanied by a prescribed certificate from a medical practitioner.

Where a claim is denied by an insurance company, the worker may take action in the Workers Compensation Tribunal. In the event that the employer does not pay compensation or does not refer the dispute to the Tribunal, the worker can refer the dispute to the Tribunal.

An employer, on receiving a claim for compensation, can dispute or pay the claim. If the claim is disputed, the employer or insurer must notify the worker of the dispute, in writing, and refer the dispute within 28 days to the Tribunal and seek a stay on payments of compensation pending the hearing of the dispute (s77AA). If the employer does not refer the dispute to the Tribunal within the prescribed time period the employer will be bound to make weekly compensation payments (ss81AB and 81AC).

Defences Available to Employers

 

Some typical grounds of defence relied on by employers are:

  • denial of the injury;
  • denial of the injury coupled with the defence that (if an injury was received) it did not arise out of or in the course of the worker's employment with the employer;
  • that the employer has paid to the worker all compensation to which they are entitled;
  • that there was no incapacity; and/or
  • that any incapacity is unrelated to the worker's employment.

Medical Examinations and Medical Expenses

Medical Examinations

Medical panels may be used to determine medical disputes (s50Workers Compensation and Rehabilitation Act 1988 (Tas)). If a dispute goes to a medical panel, the determination of that panel (where 2 or more members are in agreement) will be conclusive. If there is no agreement the question is to be returned to the Tribunal. Normally representatives of a worker will not appear before a medical panel although the worker is entitled to have someone accompany them (s53). Medical panels are rarely used.

Workers and employers are entitled to chose a medical examiner. An employer can only chose an independent medical examiner in circumstances where they have discussed the reasons for doing so with the worker’s primary treating medical practitioner, and have also informed the worker in writing of their reasons for reviewing the medical condition of the worker (s90A). An independent medical review cannot be conducted more than once every three months (s90A(5)). This does not apply where there are multiple injuries and a medical pracitioner specialises in a different field or different aspect of the injury than a previous examiner (s90A(6)).

A report of the independent medical examination requested by an employer must be provided by the independent examiner to the primary medical practitioner of the worker. There does not appear to be a time limit on this, however, once a report is provided to the employer, and the worker’s primary medical treatment practitioner, the primary practitioner must provide a copy to the worker within 7 days of receiving the report (s90B). In practice, insurance company doctors do not provide reports to the worker’s GP, but to the insurance company lawyer.

Medical Expenses

 

Recoverable medical expenses must be reasonable, and necessarily incurred by the worker as a result of his injury (s75(1)(a)). The Act determines that:

  • an employer is required to pay the costs of any medical, hospital, nursing, and ambulance services reasonably incurred by a worker by reason of the injury, or the disease;
  • where a worker dies from the injury or disease, the employer has to pay the reasonable burial or cremation costs;
  • the costs of repair or replacement of crutches; artificial limbs; legs; teeth; glasses or hearing aids destroyed as a result of an accident must be paid by the employer.

Hospital and medical services paid under the Acts include:—

  • treatment at any hospital;
  • costs of any fares or travelling expenses reasonably necessary in obtaining any hospital service;
  • treatment by a medical practitioner, dentist, masseur, chiropodist, psychologist or optometrist;
  • the provision of crutches or artificial members, eyes, teeth, spectacles or hearing aids;
  • surgical aids to rehabilitation;
  • pharmaceutical provisions;
  • travelling expenses and maintenance necessarily and reasonably incurred in obtaining any medical service.

The Act emphasises rehabilitation of injured workers, and an employer is required to pay the cost of rehabilitating an injured worker.
Where a worker has been incapacitated for a period exceeding 12 weeks, or suffers an incapacity of a permanent nature which is likely to prevent them from returning to their pre-accident employment, the employer is required to set up a rehabilitation program to be undertaken by the worker and to keep the worker's job open for the worker for a period of 12 months.

In the event that the proposed rehabilitation program is not suitable, the Workplace Safety Board may direct the employer to take such action or adopt or provide such rehabilitation programs as it considers necessary.
Reasonable medical expenses are only payable for 52 weeks after the worker’s entitlement to weekly payments in respect of any injury ceases (s75(2)).

If the worker’s treating doctor recommends a medical procedure and the insurance company refuses to pay, the Tribunal has jurisdiction to order the insurance company to pay (s77).

 

Payments

Lump Sum Payments for Permanent Injuries

 

A lump sum payment is made if a worker suffers injuries that are of a permanent nature such as the loss or use of a limb or the loss of an eye. Section 71 of the Workers Compensation and Rehabilitation Act 1988 (Tas) sets out the formulas to be used to determine the amount. Here is an example:

{18+[6.1x(WPI-5)]} x BS
WPI is the percentage of whole person impairment
BS is the basic salary

To do the equation we need some facts. At 3rd January, 2016, Harry has been assessed as having 15% WPI. His basic salary is not what he earns but what is determined by legislation. This amount changes annually. The yearly amounts can be found here. In 2016, the BS was $826.53. To do the equation, start with the numbers inside the innermost brackets. The equation would be:

{18+[6.1x(15-5)]} x BS
15-5 = 10
6.1 x 10 = 61
18 + 61 = 79
79 x 826.53 = $65,295.87

A lump sum payment is in addition to any other benefit under the Act (s71(1)).

Workers who lose part or all of a finger or toe, or are assessed at less than 5% of whole person impairment have their lump sum assessed with a different formula:

3.2 x BS x WPI

So, Harry is again involved, but this time he has been assessed as 4% WPI:

3.2 x 826.35 x 4 = $10,577.28

Permanent psychiatric impairment of between 10% and 70% is assessed according to the first formula. Less than 10% receives no compensation. For workers who experience either permanent physical or psychiatric impairment of greater than 70%, the lump sum is the equivalent of 415 units (a unit is a BS). The current unit value is $826.53, and this is subject to yearly change. If Harry were to be assessed at 10% WPI, he would receive:

48.5 x 826.53 = $40,086.71

Other years have different values for the unit.

Assessments for WPI are deliberately kept low. Above the knee amputation is only 40% WPI.  The situation is worse for backs; paraplegics may only get 45% WPI.  Disc replacement may be 15%.

Weekly Payments of Compensation

 

Section 81 provides that compensation is now payable from the date the claim is received and must be paid within 14 days. The employer can still dispute a payment within 84 days of receiving the claim (s81A) but the worker will get payments of compensation whilst the application to dispute the matter is heard. If the employer can prove that the dispute is genuine then the payments of compensation will be suspended (s81A(3)).

Weekly payments are paid where there is total or partial incapacity for work as the result of a compensable injury or disease at the relevant compensation rate. In the case of death, weekly payments are also payable to the surviving dependents of the worker.

Where there is partial incapacity, the employer must pay the difference between the worker’s normal weekly earnings, and the amount the worker has been able to earn in employment suitable to the partial incapacity. Where a worker is partially incapacitated for work and proves to the satisfaction of the Workers Rehabilitation and Compensation Tribunal that they have taken all steps to obtain employment and cannot find employment wholly or mainly as a consequence of the injury, the Tribunal may treat the partial incapacity as a total incapacity.

The compensation rate (see section 69) is the greater of either the normal weekly earnings of the worker for the 12 month period preceding the commencement of the period of incapacity, or the ordinary time rate of pay of the worker for the work in which they were engaged immediately before the period of incapacity. The amount to be paid is that which is greater.

The worker receives:

  • 100% of the weekly compensation rate for the first 13 weeks.
  • 85% of the weekly compensation rate for up to, but not exceeding 78 weeks after the initial 13 weeks.
  • 80% of the weekly compensation rate for the period of incapacity exceeding 78 weeks.

The periods for which benefits are payable range from between 9 years to retirement age. It is:

  • 9 years where there is permanent impairment of less than 15%, or the impairment is not assessed;
  • 12 years if the impairment is between 15% and 20%;
  • 20 years if the impairment is between 20% and 30%;
  • until retirement if the impairment is assessed at 30% or more (s69B(1)(c)).

Weekly payments or compensation for claims prior to 1 July 2001 are payable for any period of incapacity arising out of an injury or disease. There is no time limit once the initial claim for compensation has been made. So for instance a person may have been injured in 1985 and been on the workers compensation for six months and then had a flare up of the same injury in 1999 and can again claim workers compensation. However when a worker has reached the maximum entitlement to weekly payments they are not entitled to any further weekly payments, although they will still be entitled to the other benefits under the Act such as payments of medical accounts. When payments of weekly compensation have been exhausted, the worker should apply for an income-support payment from Centrelink.

An employer's liability to pay compensation ceases, if the injury occurred before the worker attained the age of 64, when the worker attains the age of 65 years. If the injury occurred after the worker attains the age of 64, workers compensation weekly payments are payable for up to one year after the injury occurs (s87). It is possible for the Tribunal to order the payments of weekly compensation be continued beyond these periods if the worker would have been employed beyond the age of 65 years.

A worker who leaves Tasmania can still receive workers compensation but must provide proof of continuing incapacity and current address and identity.

Termination of Payments

Section 86 of the Act provides that an employer may terminate or diminish weekly payments of compensation in the following cases:

  • where the worker is being paid for total incapacity and has returned to work;
  • where the worker in receipt of a weekly payment in respect of partial incapacity is receiving weekly payments in excess of the amount upon which the amount of weekly payments was determined;
  • where a medical practitioner has certified that the incapacity of the worker is no longer due wholly or substantially to the injury, or that the worker has wholly or substantially recovered from the effects of the injury in respect of which compensation is paid;
  • where the worker has been paid the limit of weekly compensation under the Act.

Any and all disputes are referred to the Workers Compensation Tribunal.

Employers cannot terminate or diminish payment of compensation without notice to the worker and provides a method by which the worker can dispute a termination or the diminishing of payments (s86(3)-(4)). Workers who have their weekly payments terminated should immediately seek social security payments, as there will usually be a long delay before the issue of entitlement to compensation is determined.

Legal Advice and Resources

Legal Advice

Proceedings are commenced in the Workers Rehabilitation & Compensation Tribunal. It would be beneficial for the worker to seek legal advice. In many cases, the worker's trade union will recommend an appropriate lawyer and will give legal assistance by paying the worker's legal costs. Alternatively the worker can approach a lawyer themselves and that lawyer may accept the case on a ‘no win no fee’ basis. See the section on legal advice to ensure that you are consulting a lawyer who specialises in the area of personal injury law.

Costs and Legal Representation

An order for costs will be made against the unsuccessful party to any workers compensation proceedings. If a worker loses their action for workers compensation they will have to pay their employer's legal costs.

A party to a proceeding before the Tribunal may, with the approval of the Tribunal, be represented by a person of the worker's choice. The Tribunal will as a matter of course grant leave for a party to be legally represented.

Interest is not payable on compensation even if the worker is successful in their proceedings. Interest paid by a worker on any loans taken out to assist with living expenses while they are without weekly payments of compensation is not recoverable.

Workers who receive income support payments from Centrelink may have to repay some or all of the payments out of a successful or settled claim.

Online Resources

There are some excellent online resources available with information about Workers Compensation. The Aussie Legal website provides information, as does Safe Work AustraliaWork Cover TasmaniaWorkers Compensation Tasmania and Workplace Standards Tasmania.

Rights, Disability and Access

Children's Rights

Care and Protection of Children and Young People

In July 2000, the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) came into force. The Act is based on the United Nations Convention on the Rights of the Child and establishes the rights of the child to be brought up in a family and the family's responsibility towards the child. The Act moves away from the traditional 'child rescue model' that took children away from the family unit, and instead recognizes that under most circumstances, the child's best interests are served within the family. 

The CYPFA together with the Youth Justice Act 1997 (Tas) are the two main statutes governing the rights of children in Tasmania.

Objectives and Principles

The object of the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) is to provide for the care and protection of children in a manner that maximises a child’s opportunity to grow up in a safe and stable environment and to reach the child’s full potential (s7(1)). The administration of the Act is founded on the adoption of the following key principles (s8(1)):

  • the primary responsibility for a child’s care and protection lies with the child’s family;
  • a high priority is given to supporting and assisting the family to carry out that primary responsibility in preference to commencing legal proceedings and;
  • if a family is not able to meet its responsibilities to the child and the child is at risk, then the Secretary (of the Department of Health and Human Services) may accept those responsibilities.

The Act states that ‘the best interests of the child must be the paramount consideration’ (s8(2)(a)) and emphasises that children should, where possible, remain within their own family, culture and community setting (s8(2)(b)).

This blend of legal protection by the State and emphasis on family responsibility within the community reflects the principles expressed in the United Nations Convention On The Rights of the Child.

In addition, the child’s views must be sought and given serious consideration, taking into account the child’s age and maturity. Where the child is likely to be separated from their family, the child’s family and other persons interested in the child’s well-being must be given the opportunity to present their views and be provided with sufficient information to enable them to participate fully in the proceeding.

Commissioner for Children

The Tasmanian Commissioner for Children is an independent statutory officer and focuses on matters that affect children and young people. The Commissioner is governed by the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA). The purpose of the Commissioner is to research issues around legislation, policy and practices that impact on children and young people in Tasmania.

The role of the Commissioner is to:

  • encourage the development of policies and services;
  • provide independent advice on policy and practice standards to involved parties, including the Minister;
  • co-ordinate and provide community education programs; and
  • perform independent investigations of complaints, often at the request of the Minister.

The Commissioner for Children has several other functions (s79, CYPFA) including:

  • the capacity to act as an advocate for a detainee under the Youth Justices Act 1997; and
  • to advise the Minister for Children of on any matter relating to the health, welfare, education, care, protection and development of detainees under the Youth Justice Act 1997.

The Commissioner does not investigate individual complaints unless referred by the relevant Minister for Children. Complaints should be referred to the Tasmanian Ombudsman.

The Commissioner is also required to establish the Children and Young Persons Advisory Council, Children’s Consultative Committee and other appropriate committees.

Intervention by the State or another party

The term ‘ward of the state’ has been replaced by the term ‘guardianship’ in the Children, Young Persons and Their Families Act 1997 (Tas). Children do not automatically stay in the care of the State until they are 18 years old – care and protection orders last for shorter periods and there will be clear statements about when orders are to be reviewed. People other than the government can be granted guardianship of a child so the child can stay in a familiar but protected situation.

Child Protection

Child Protection and Children

Child Protection has responsibility for the assessment of reported situations where it is suspected that a child is at risk of physical, sexual or emotional abuse or neglect.Responsibility includes children under the age of 18 years.

Child Protection can be contacted on 1300 737 639 at any time. Online notifications where you believe suspect or know a child may be at risk of abuse or neglect can also be made.

The CYPFA requires certain groups of professionals to notify Child Protection of any child whom they have reason to believe has suffered, or is at risk of suffering maltreatment (see Mandatory Reporting).

Child 'At Risk'

 

The CYPFA provides the following definition of a child ‘at risk’ (s4):

  • the child has been, is being, or is likely to be, abused or neglected; or
  • any person with whom the child resides, or who has frequent contact with the child (whether the person is or is not a guardian of the child):
  • has threatened to kill or abuse or neglect child and there is a reasonable likelihood of the threat being carried out; or
  • has killed or abused or neglected some other child or adult and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or

the guardians of the child:

  • are unable to maintain the child; or
  • are unable to exercise adequate supervision and control over the child; or
  • are unwilling to maintain the child; or
  • are unwilling to exercise adequate supervision and control over the child; or
  • are dead, have abandoned the child or cannot be found after reasonable inquiry; or
  • are unwilling or unable to prevent the child from suffering abuse or neglect;
  • the child is under 16 years of age and does not, without lawful excuse, attend school regularly.

Ex-nuptial children

 

A child is presumed to be the child of a man and woman if they were married when the child was born or conceived, or if they marry after the child's birth (s89Marriage Act 1961 (Cth)s5Status of Children Act 1974). However, all children have equal status in law whether they are born to a married couple or any other form of relationship (s3Status of Children Act 1974).

The Status of Children Act 1974 sets out to remove any legal discrimination against ex-nuptial children. The relationship between a child and their parents is to be determined irrespective of whether the parents were married or not. In particular, ex-nuptial children have equal rights with nuptial children to inherit from their parents under a will or on intestacy. They can make applications under the Testators Family Maintenance Act 1912 (Tas). The Status of Children Act helps children identify their fathers by providing for voluntary recognition of paternity and legal presumptions of paternity, notably arising from cohabitation (that is, living together) during the period around the child's conception (Part II of the Act).

The Family Law Act 1975 (Cth) provides for ‘parentage testing’ procedures (blood and DNA tests) which the courts can require to be performed if the parentage of a child is in dispute under the Family Law Act 1975 (Cth) or the Child Support (Assessment) Act 1989 (Cth).

What is Abuse or Neglect?

The Children, Young Persons and their Families Act defines abuse or neglect as (s3(1)):

  • sexual abuse; or
  • physical or emotional injury or other abuse, or neglect, to the extent that:
  1. the injured, abused or neglected person has suffered, or is likely to suffer, physical or psychological harm detrimental to the person's well-being; or
  2. the injured, abused or neglected person's physical or psychological development is in jeopardy.

Child abuse/neglect is considered to have occurred when a child has been subjected to emotional or physical actions or omissions. These acts or omissions need to have been so severe and persistent that significant harm or injury has occurred or is likely to occur to the child. Child abuse/neglect is also considered to have occurred where a child has been exposed or subjected to exploitative or inappropriate sexual acts.

Child abuse or neglect allegations are commonly grouped into the following categories:

  • emotional maltreatment;
  • physical maltreatment;
  • sexual maltreatment; and
  • neglect.

These categories do not represent ‘absolutes’, are not mutually exclusive and rarely reflect the complexity of circumstances that surround the harm.

Emotional Maltreatment

This describes the significant impairment of a child's social, emotional, cognitive or intellectual development and/or significant disturbance of the child's behaviour resulting from behaviours such as persistent hostility, rejection or scape-goating by family members or care-givers.

Children can experience emotional harm when they are not protected from violence. They can suffer harm either directly or indirectly, for example when:

  • they witness repeated abuse or violence;
  • violence is frequent within the home;
  • they are assaulted when attempting to intervene.

Physical Maltreatment

This includes significant physical harm or injury experienced by a child as the result of severe and/or persistent actions or omissions, such as:

  • injuries such as cuts, bruises, burns and fractures caused by a range of acts including beating or shaking; or
  • inappropriate administration of alcohol or drugs; or
  • attempted suffocation; or
  • excessive discipline or punishment; or
  • deliberate denial of a child's basic needs such as food, shelter or supervision to the extent that injury results.

Sexual Maltreatment

This occurs when a child has been exposed or subjected to sexual behaviours or acts which are exploitative and/or inappropriate to their age or developmental level. Harm that results from sexual maltreatment may include emotional trauma, physical injury or impaired development, although the harm resulting from the maltreatment may not be readily identifiable or apparent.

Neglect

Neglect is experienced by a child when the family or carer does not provide food, shelter or medical attention or supervision to such a severe and/or persistent extent that the child's development is or is likely to be significantly damaged or injury occurs or is likely to occur. This description mainly refers to harm resulting from acts of omission. The deliberate deprivation of a child's needs should be considered within the context of physical or emotional maltreatment.

Children and Domestic Violence

The Family Violence Act 2004 (Tas) grants children the ability to report acts of domestic violence and apply for a Family Violence Order (FVO). The Act provides harsh penalties for those adults convicted of committing such acts while a child was present. For a child to apply to the court for a Family Violence Order (FVO) the child must be capable of understanding the nature of the proceedings (s15(2)(c)). A copy of the application for a FVO must also be forwarded to the Secretary of the DHHS (s15(3)).

In considering whether a FVO should be made under the Act, the court must consider the safety and interests of the person for whose benefit the order is sought and any affected child to be of paramount importance (s18). While in sentencing, section 13 provides that the court may consider it to be an aggravating factor that the offender knew or was reckless as to whether a child was present on the premises at the time of the offence.

Mandatory Reporting

Prescribed Persons

The CYPFA emphasises that everyone in the community has a responsibility for ensuring that children are safe and protected. In addition, the Act lists the following people (prescribed persons) who are legally required to report their suspicions that a child is being abused (s14):

  • medical practitioners;
  • nurses and midwives;
  • dentists and other dental professionals;
  • police officers;
  • psychologists;
  • police officers;
  • probation officers;
  • school principals and teachers in any educational institution (including a kindergarten);
  • persons who manage child care services or provide child care for a fee or reward;
  • in general people employed, or who are volunteers in government agencies or organisations funded by the Crown that provide health, welfare, education, or care wholly or partly for children.

The Act provides a penalty of a fine up to 20 penalty units for mandatory reporters who do not report their suspicions of child abuse or neglect.

Reporting

If a prescribed person believes or suspects with good reason that a child is being or is likely to be abused or neglected, or is in real danger from the person whom they are living with, the person must contact the Secretary of DHHS or a Community-Based Intake Service (otherwise known as Gateway Services) with this information as soon as practicable. This also applies to unborn children (s14(2)CYPFA). Gateway Services are currently run by Mission Australia and Baptcare. Their contact details are availableon the DHHS website

The CYPFA was amended in 2009 so that the public and prescribed persons may notify their concerns about unborn children who may be at risk of abuse or neglect once born (s13(1A) and s14(2)).

A notifier will speak to a staff person who will record their concerns (s14(5)). Child Protection may then gather more information so that a recommendation can be made about what needs to be done (s18). The case may be referred to a more appropriate service for response, referred to police for joint investigation or classified and prioritised for a risk and/or needs assessment by Child Protection.

Rights as a 'Notifier'

A person who provides information about child abuse and neglect to Child Protection is a notifier. Under both the CYPFA section 16, and the Right to Information Act 2009 (Tas) section 38 the identity of a notifier does not have to be released nor does any information contained in a notification that may lead to the identification of a notifier. In court, the identity and any evidence identifying a notifier is confidential and generally withheld from court proceedings (s16(3), CYPFA). If, however, the evidence of the notifier is critical to proceedings and needs to be provided for the proper administration of justice, the court may grant leave to hear the evidence (s16(5)(a)). The notifier may also consent to their evidence or their identity being revealed in proceedings (s16(5)(b)).

Care and Guardianship

Placing a Child in Care

A child may be placed with a member of the extended family or in an out-of-home care placement approved by Child Protection Services if the child needs protection and their safety cannot be guaranteed if they remain in the home. Sometimes this placement will change after Child Protection has assessed the situation and there have been changes at home to make sure that the risks to the child’s safety are no longer there.

The term ‘ward of the state’ is not used, rather the CYPFA uses the term ‘guardianship’. Care and protection orders may be made for short periods and there are provisions for when orders are to be reviewed. This means that children are no longer automatically in the care of the State until they are 18 years old.

Also under the CYPFA, people other than the Secretary can be granted guardianship or custody of a child so that the child can stay in a familiar, but protected, situation where there is little change in the child's established family, religious, cultural, educational and social connections.

Guardianship

A ‘guardian’ under the CYPFA means (s3(1)):

  • a parent of a child; and
  • a person (other than the Secretary) who is the legal guardian of a child; and
  • a person (other than the Secretary) who has the legal custody of a child; and
  • any other person who generally acts in the place of a parent of a child and has done so for a significant length of time.

Note: some of these terms, such as ‘legal custody’ are no longer used in the Family Law Act.

Best Interests

The court must consider the following matters when determining what is in the child’s best interests (s55):

  • any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court considers relevant to the weight it should give to the child’s wishes;
  • the relationship the child has with guardians and other persons and the likely effect of any changes in the child’s circumstances on those relationships;
  • the relationship that guardians have with the child and the capacity of each guardian or of any other person to provide for the needs of the child, including emotional and intellectual needs;
  • the need to protect the child from physical or psychological harm;
  • the child’s maturity, sex, background and culture and any other characteristic of the child and any other fact or circumstance that the court considers relevant.

Whether the child is represented by a lawyer or not, the court must allow the child a reasonable opportunity to give their own views personally to the court if they are capable of doing so and wish to do so. 

The court must not proceed to hear an application unless:

  • the child is represented in the proceedings by a lawyer; or
  • the court is satisfied that the child has made an informed and independent decision not to be so represented.

Order Hearings

Evidence

A child and its guardians are entitled to full particulars of the evidence, on the basis of which it will be alleged a child is ‘at risk’, for instance, failure to supply necessary food, supervision and medical treatment. As a matter of practice, the Department does supply to the child, their guardian or their legal representative, statements of witnesses outlining the evidence each witness will give. This is especially important in the case of an expert witness, for example a doctor or psychiatrist.

Failure to supply the statement (or ‘proof of evidence’ as it is usually called) of such an expert is a ground for seeking an adjournment of the hearing after such evidence is given, so as to allow an opportunity to prepare cross-examination of that witness and consult other experts on the evidence given. If a proof of evidence of an expert witness is supplied before the hearing date, then consideration should be given to consulting another expert on its contents. A request should also be made to the Department (if the child is in its care) for any expert proposed to be called on behalf of the guardian or child, to examine the child where this is appropriate (for example to test the opinion presented by the Department's psychiatric expert). The Department will usually co-operate with such a request.

When the court proceeds on the appointed day to hear the case in full, witnesses for the Department are called and the child or its guardians have the right to cross-examine this evidence. The Department has the right to re-examine those witnesses to clear up any matters raised in cross-examination.

After the Department's witnesses have given their evidence, the child or its guardians have the right to give evidence and call witnesses to support their opposition to the application. It is wise to have legal representation to assist in deciding what evidence to call and who should give it. As the guardian is a party to the proceeding, they can, at the close of the Department's case, submit to the court that there is no case to answer.

Rules of Evidence

While the rules of evidence do apply in proceedings under this Act, they are not applied inflexibly, i.e. the court has some discretion and will not be applied where to do so would prejudice the very purpose that they are meant to serve, namely the best interests of the child (s63CYPFA). Accordingly, it is possible to have hearsay evidence admitted into evidence (for example a witness relates what a parent said or admitted to) that ordinarily would be inadmissible as hearsay.

Parties

Parties to applications under this Act include the Secretary of DHHS, the child and each guardian of the child (s64). The court may hear and determine an application for an order in the absence of a party to the application (s66). It may also join a person who is not a party to the proceedings where it intends to make an order binding upon that person (s67). If the court dismisses an application under this Act by the Secretary, the court may make such order for costs against the Crown in favour of any other party to the proceedings as the court considers appropriate (s68).

Importantly, the Act expressly provides that the court must not proceed to hear an application unless the child is represented by a lawyer (s59(1)(a)) or the court is satisfied that the child has made an informed and independent decision not to be so represented (s59(1)(b)). Occasionally the hearing will proceed without a lawyer however in using its discretion the court must be of the opinion that it is in the best interests of the child (s59(2)). It may sometimes also be the case that whether or not the child is represented the court may order that the child be separately represented.  

Orders in Care and Protection Proceedings

Care and protection/assessment orders

Introduction

The court may make care and protection orders if they think it is in the interests of the child so to do (s42CYFPA). The court must also be satisfied that a child is at risk, and that the order must be made to secure the care and protection of the child.

When a person contacts Child Protection because they are worried about the safety of a child/young person, Child Protection makes a decision about what to do with that information. If it appears that the child has been harmed or is at risk of abuse or neglect, there needs to be a judgement made about how to make sure that the child is safe.  This is called an assessment. An assessment usually involves speaking with the child, parents, other services and professionals. It may also include a medical examination of the child if they have been harmed.

So that this assessment can happen, an assessment order may need to be made. This order gives legal authority to certain authorised Child Protection staff and police officers to request specific things and actions from people in order to assess the safety and possible ongoing risk to a child. A police officer assisting the Secretary of the DHHS, who has obtained a warrant may enter or break into, remain in and search any premises or place and seize and remove items (s19). In addition, such a police officer who has not obtained a warrant may also exercise these powers if entry to the premises or place has been refused or cannot be gained and the police officer believes on reasonable grounds that delay would prejudice the assessment or the safety of the child whose circumstances are being assessed (s19(4)).

An authorised officer may ‘require’ a guardian (or person with whom a child is living) to take the child to a place or person, specified by the authorised officer, for the assessment to happen (s20).

On occasions, children may be placed into the short-term custody of Child Protection under a requirement or warrant if (s21):

  • the child is at risk; and
  • further assessment is required; and
  • the child could not be properly assessed unless they were in a safe place away from the normal place of care.

The difference between care and protection orders and assessment orders

Staff from either Child Protection or the Tasmania Police will use an assessment order:

  • when a child needs to be kept safe because of immediate danger or danger in the near future, and
  • time is needed for the gathering, confirming and analysis of information.

A care and protection order will be applied for by Child Protection where:

  • a child needs to be kept safe for a specified period of time; and
  • the family needs ongoing support.

Child Protection staff will apply for a particular care and protection order only after they have gathered as much information as possible and talked to the child/young person, the family and other relevant people. Sometimes a family meeting, called a family group conference, is called to help decide what type of a care and protection order needs to be sought.

Sometimes a person may oppose the request for a care and protection order.  Then the court may grant an interim care and protection order so that the child is safe until all of the evidence can be heard.

Assessment Orders

An assessment order may:

  • authorise the examination and assessment of the child;
  • authorise the Secretary to require any person to answer questions or provide a written report in relation to the child;
  • grant custody of the child to the Secretary;
  • any other order the court considers appropriate.

An assessment order has effect for a period not exceeding four weeks (s22(4)).  It can be extended for a further eight weeks (s22(5)(a)) if there is to be a family conference or four weeks in any other case (s22(5)(b)). An assessment order continues to have effect where another application has been made, and the date of determination of that application falls outside the four week period (s22(6)). The interim assessment order, in addition to the possibilities listed above, may also order the guardian of the child to take steps specified in the order to secure the proper care and protection of the child, or direct that a person specified in the order be allowed or not be allowed access to the child or to reside with the child.

The following are the sort of assessment orders used:

  • a 'requirement' or 'warrant' leading to an initial assessment order lasting for a period of 120 hours;
  • an assessment order not exceeding four weeks which is granted by the court so that a child can stay in the care of someone other than their guardian if further assessment is required;
  • an extension of the assessment order once only for a further four weeks or up to eight weeks if a family group conference is to be convened.

When the Order is opposed

Sometimes the application for an assessment order will be opposed. In such circumstances the court will determine what is best for the child based on submissions heard from both sides. During this time, the court may grant an interim order. This order could have the same or other conditions so that the child remains safe until all submissions have been heard and a decision reached.

Care and Protection Orders

The courts may make a care and protection order if satisfied that a child is at risk (s42). These orders can be for a period up to 12 months, or until such time as the child attains 18 years of age (s42(4)). A court may make a care and protection order to preserve a situation if it is satisfied that proper arrangements exist for the care and protection of the child and the child would be likely to suffer significant psychological harm if the arrangements were to be disturbed and it would be in the best interest of the child for the arrangement to be incorporated in a care and protection order (s42(3)).

Orders may include conditions to be observed by the child, the guardian of the child, a person with whom the child is living, the Secretary, a person who is to supervise the child, a person who is granted custody of the child, and any other person who is involved with the care and protection of the child.

The order may contain one or more of the following:

  • an order requiring the child or its guardian to do something specified in the order or to refrain from doing something specified in the order for a period of up to 12 months;
  • an order granting custody of the child to either a guardian of the child, a member of the child’s family, the Chief Executive Officer of a non government organisation that provides facilities for the residential care of children, the Secretary, or any other person that the court considers appropriate in the circumstances for a period of up to 12 months;
  • an order placing the child, for a specified period not exceeding 12 months, under the guardianship of the Secretary; or one or 2 other persons;
  • an order placing the child under the guardianship of the Secretary or one or 2 other persons until the child turns 18 years of age;
  • an order providing for access to the child;
  • an order providing for the way in which a person who has custody or guardianship of the child under an order of the court is to deal with matters relating to the care, protection, health, welfare or education of the child;
  • any other order of the court considers appropriate.

Where an order has been made for a period of up to 12 months, that period may be extended by the court on application of the Secretary for a total period not exceeding 3 years.  However, before an extension may be granted, a family group conference must be held to review to review the arrangements for securing the care and protection of the child (s44).

A care and protection order may be varied or revoked by the court at any time (s48). 

Options other than Care and Protection Orders

Maintenance

A child’s previous guardians have the duty to maintain financially a child who is in the custody or under  the guardianship of the Secretary. The court may make a contribution order (s73CYPFA).

Restraint orders

Upon receipt of an application for an assessment order or a care and protection order, the court may make, in addition to or instead of making that order, a restraint order (s23(1)(a)s43(1)(a)) or an interim restraint order (s23(1)(b)s43(1)(b)) against a person.

Voluntary Care Agreements

A voluntary care agreement (s11) is an agreement between the person who looks after the child, most often the natural parent, and Child Protection. A voluntary care agreement allows staff in Child Protection to be responsible for the day-to-day care of a child/children for an agreed period of time. An agreement does not transfer guardianship.

There are conditions set down for starting and for ending voluntary care agreements.  The agreement must be in writing and signed by both a Child Protection staff member and the person who normally has the care of the child (s11(8)).  If it involves a young person (defined as a 16 or 17 year old) the young person must also sign the agreement. If it involves a child under 16 years of age, staff in Child Protection must consult with the child if they are able to understand what is happening.

The child/young person must consent to the agreement or an extension of the agreement, unless Child Protection believes that they are unable to understand, or give informed consent to, the agreement. An agreement can be for a period of three months or less.  If necessary, the length of the original agreement can be extended, however it cannot be continued beyond a total of three months (s11(4)). In exceptional circumstances there may need to be an additional new voluntary care agreement drawn up after the original agreement has been terminated.

Ending an Agreement

Orders under this Act, or any other enactment which deals with the care of the child, can end a care agreement. Another way a care agreement can be ended is when Child Protection staff, the child's guardians and the young person agree to its conclusion.  For this to happen, Child Protection staff must be satisfied that proper arrangements have been made for the care of the child or young person. An agreement can also end when the young person makes such a request in writing and Child Protection is satisfied that proper arrangements exist for the care of the young person (s12(4)). An agreement is used if a child's caregiver (guardian) is, or will be, unable temporarily to provide the necessary day-to-day care and supervision for the child. Voluntary care agreements should not be considered where there is reasonable belief that the child is at risk of abuse or neglect.

Family Conferencing

Where there are significant care and protection concerns, a family meeting (family group conference) can be called either by Child Protection or by the court (s30). The purpose of a conference is to bring families, professionals and others together to share information and make decisions about children at risk of harm and neglect. The outcome of a family group conference should be a clear determination on how the child will be kept safe, how decisions about the child will be made in the future, what resources are needed to make this happen and where these resources will come from. The family is assisted to develop a plan that will keep the child safe in the future as well as looking after the child’s health and well-being. This plan has to then be approved by Child Protection before it can be implemented. Occasionally, Family Group Conferences may be reconvened to review initial decisions and make further recommendations in respect of those arrangements.

Convening a Family Group Conference

A Family Group Conference may come about from a recommendation made by Child Protection, by an Advisory Panel or may be ordered by the court. The child, family and Child Protection select an independent facilitator who sets up the meeting and makes sure that there is a clear understanding among participants of both the process and purpose (s32).

During the Family Group Conference, the facilitator must, if necessary, allow the family members to meet privately to discuss matters and work out what they want to do.  Other participants (including advocates for the child and the family, community service organisation representatives, Child Protection, social workers and other invited professionals) may attend at different times to present information and offer advice.

The child's guardians and other family members should all agree on the final decision.  If an agreement cannot be met or the outcome is not acceptable to Child Protection then the conference may be reconvened or action may be taken to seek care and protection orders.

At the end of the Family Group Conference the facilitator must provide a report including the time, date, and place of the Conference, who participated and what decisions were made. A copy of this report should be provided to all who took part, including the child, the child's advocate, the guardians of the child, any other person that the facilitator considers appropriate and, depending on how the conference was convened, the court and/or Child Protection.

Protocols

Protocols are arrangements between various Departments or Agencies who may be dealing with the same family. These are put in place in order to make sure that all parties are working towards the same goal, that is the best interests of the child. Protocols exist between the DHHS and the following agencies amongst others:

The Family Court

The Family Court's jurisdiction is limited by section 69ZK of the Family Law Act 1975 (Cth) in that it must not generally make an order in relation to a child who is subject to an order which places them in the custody of, or under, a prescribed child welfare law. Further, where it appears to the Family Court that the Children’s Court proposes to make an order by which a child is placed in the custody of, or under the guardianship, care and control of, a person under a prescribed welfare law, the Family Court may adjourn any proceedings before it in relation to that child.

Under the provisions of section 91B of the Family Law Act, the Court may request the intervention in the proceedings of an officer of the appropriate State welfare department (in Tasmania, the DHHS).

The Federal Circuit Court

The Federal Circuit Court was created in 1999 in part to complement the Family Court of Australia. It seeks to provide a simpler and more effective alternative to litigation in the Family Court and almost half of all family law children’s applications are now heard in the Federal Circuit Court. 

As the Federal Circuit Court shares its jurisdiction with the Family Court of Australia there are arrangements for the transfer of matters between the courts. These arrangements enable a matter to be transferred to the court that is most appropriate having regard to the complexity of the legal issues involved or the evidence in the matter.

The Police

The Act specifies roles for police officers in relation to assessment orders, other legal orders and warrants. If the Secretary considers it necessary or appropriate, the Secretary may obtain the assistance of the Commissioner of Police in carrying out the assessment of the circumstances of a child. In certain circumstances, evidence for assessment and/or the immediate protection of the child, without a warrant, may only be provided by a police officer.

Aboriginal Community

Under section 9 of the CYPF Act, a decision or order as to where or with whom an Aboriginal child will reside may not be made under this Act except where an Aboriginal organisation has first been consulted. In making any decision or order under this Act in relation to an Aboriginal child, a person or the court must, in addition to complying with the principles set out in section 8:

  • have regard to any submissions made by or on behalf of a recognised Aboriginal organisation consulted in relation to the child; and
  • if a recognised Aboriginal organisation has not made any submissions, have regard to Aboriginal traditions and cultural values (including kinship rules) as generally held by the Aboriginal community; and
  • have regard to the general principle that an Aboriginal child should remain within the Aboriginal community.

Parents' Rights and Duties

Parents (and guardians) have the right:

  • to determine the child's upbringing and education;
  • to discipline the child (including reasonable corporal punishment);
  • to consent to the child's adoption; and
  • to take legal proceedings on their behalf.

Parents (and guardians) have the duty:

  • to maintain the child, and this duty is imposed equally on both parents (s66BFamily Law Act);
  • to send the child to school once the child reaches 6 years of age, and until they reach 16 years of age; and
  • to obtain medical attention for a child who is ill.

Broadly speaking, the law does not intervene between parent and child unless the parent abuses, neglects, fails to maintain the child or cannot control them. Any disputes between the parents about the children (for example, where parents separate and then contest residence of the children) will be decided according to what the court thinks is in the best interests of the child.

Corporal Punishment

Adults have no more right to hit a child than that they have to hit another adult. If they do, they commit assault that can be both a criminal offence and a civil wrong. However, as the law stands, parents and other adults in loco parentis (standing in the place of parents) have the right to administer corporal punishment to children in their care, provided the force used is ‘reasonable under the circumstances’. This right does not however extend to the corporal punishment of children in schools (s82A(1)Education Act 1994 (Tas)) and juvenile detention centres (s132Youth Justice Act 1997 (Tas)) while policy and licensing guidelines prohibit the use of corporal punishment of children in foster care and childcare.

The type or degree of force that is ‘reasonable’ is not set out in legislation and legal precedents are inconsistent. It is difficult to state what does and does not come within such a vague phrase as ‘reasonable under the circumstances’. It depends on the circumstances of each case and the standards of the court.  However, among the relevant factors are the following:

  • the age of the child — they must be old enough to appreciate correction and the punishment must be reasonable for a child of that age. One judge said: ‘a parent is not lawfully entitled to administer to an infant girl of 19 months any physical punishment except of the very lightest description, for example, a slight slap at the very most’;
  • the instrument of correction— canes have been held lawful, but not a loaded gun;
  • where a blow was administered. Normally, blows to the face or other vulnerable parts of the body are unlawful;
  • the force and number of the blows;
  • the seriousness of the child's offence;
  • the age, size, health, and perhaps sex of the child; and
  • the consequences of the blows - injuries requiring medical attention will normally suggest illegality.

Numerous parents over the last decade have been convicted in the Tasmanian Supreme Court for excessively punishing their children. In P v Tasmania (No 2) (2006) TASSC 35, the Supreme Court upheld sentence and conviction against a father for the ill treatment of three children extending back three decades. The sentence was a four year term of imprisonment.

In DPP v NLW and JGW (2004) TASSC 93, a sentence of 3 months imprisonment and a $1000 fine were upheld for an incident involving an acquaintance of the victim placing a vacuum cleaner over the boy’s penis, and rubbing Deep Heat on his testicles. The victim was 4 years old.

The case of R v V (2004) TASSC 18 also involved conviction for ill treatment of a child that occurred several decades prior. In 2004, a single mother was convicted of ill-treating her 19 month old boy. Her sentence included a 4 year period where she was not permitted custody of children under the age of 18 years without Departmental approval. The stress of her situation, which included heavy pregnancy, homelessness, and an attempt to leave a violent dysfunctional relationship were taken into account.

Bresnehan v R (1992) 1 Tas R 234 is an early example of the issues around corporal punishment. The light sentence of 10 weeks imprisonment is at a noticeable contrast with more recent cases where sentences are much harsher.

In Bresnehan, a father and his wife were prosecuted for various charges of ill treatment of a child and assault against all four of their children. The father was convicted of one count of ill treatment of his youngest son. In relation to the other charges of ill treatment of a child and assault the jury returned hung verdicts. The alleged incidents included:

  • the ‘cigar incident’: the children were forced to smoke cigars and eat the cigar butts; the youngest son was whipped, grabbed by the throat and thrown to the ground, two other children were also whipped (one or more of the children had been caught smoking);
  • the ‘tapes incident’: the stepmother whipped all the children on the hands with a horsewhip because a missing cassette tape had been found destroyed;
  • the ‘gun powder incident’: the youngest son was forced to hold his face over a mug of loose gun powder and the powder was ignited (he had taken it and apparently played with it);
  • a cattle-prodder was used to sting the children on the tongue and bottom;
  • a child was tied in a shed with a dog chain and hit with a shearing belt for not feeding the dogs properly.

Other incidents included being hit with a dog lead, a stock whip, a hearth brush, a shearing belt and a piece of wood. For the charge of ill treatment of his youngest son the father was initially sentenced to 12 months imprisonment. Because the jury’s verdict was guilty to this non-specific charge, it was unclear which incidents they found proven. The parents denied that most of these punishments took place at all. On appeal by the father the sentence was reduced to 10 weeks and backdated (Bresnehan v R (1992) 1 Tas R 234). This reduction was made because it was held that the trial judge had taken some incidents into account which were not the subject of a conviction, namely the charges relating to the other three children).

The trial judge and all three judges in the Court of Criminal Appeal gave mitigatory weight to the fact that the father had acted with a genuine belief that his methods were for the ultimate good of the child. So long as the law permits physical punishment of children subject to the proviso of unreasonableness, the law will be obliged to give such genuine beliefs mitigatory weight.

It should be noted that the Tasmanian Law Reform Institute’s 2003 Paper ‘Physical Punishment of Children’ argues that community standards are changing and increasingly the use of corporal punishment on children is viewed as inappropriate. Already, the corporal punishment of children has been banned in ten European countries.

Children's Rights and Duties

Medical Treatment

Where a child who is ‘capable of exercising a reasonable discretion’ (s51Criminal Code Act 1924 (Tas)) seeks medical treatment and a doctor consents to perform it, the only way the parent or guardian can stop the treatment is by applying to the Supreme Court for a restraining order. So, for example, a child or young person who is capable of exercising a reasonable discretion could ask a doctor for a contraceptive device or drug and, having the consent of the child/young person, the doctor can prescribe contraceptives in spite of the fact that the parents do not know about it. There is no age limit for buying contraceptives like condoms and spermicides from the chemist.

Marion’s Case – medical treatment for minors and people with disabilities

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery was within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood, however it is an important precedent in determining children’s rights in relation to their capacity to consent for medical treatment.

The impact of this case has been that parents cannot provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

International and Domestic Law

The UN Convention

In 1990 Australia signed and ratified the United Nations Convention on the Rights of the Child. This means that Australia agrees to be bound by the Articles of the Convention. The Convention is an agreement between countries to observe common standards for protecting the rights of children, especially when passing laws and implementing policies. It is important to note that while Australia has ratified the Convention, it has yet to legislatively enact many of the Articles found within it.

There are 40 Articles in the Convention covering issues such as child welfare, care and protection, juvenile justice, health, education and civil rights.

Family Law Act

Aspects of the law concerning the relationship between parents and children are dealt with under the Family Law Act 1975 (Cth). Children's rights in other areas are contained in state legislation and in the common law. Each of the parents of a child who has not attained the age of 18 years has shared parental responsibility unless they agree otherwise or the Family Court makes an order changing their responsibility. This principle applies equally whether a child is born within marriage (‘nuptial child) or whether the parents are not married (‘ex-nuptial child’). In this context, ‘a child’ means a person under 18, which is the age of majority for most purposes. Unless it is contrary to a child’s best interests, children have the right to know and be cared for by both their parents and the right to contact with their parents and other significant people in their lives (s60B(2)).

A parent may appoint someone on their death to be guardian of their children. This can be done in a will.

School

School Attendance

Full time attendance at a school is compulsory once a child reaches 5 years of age until they turn 16 years. A school includes State schools, other State centres, units or institutes that qualify, and registered schools – including non-government schools (otherwise known as private schools). If a parent wishes to home school, they must be registered home educators. A parent who fails to enrol their children or to home school can receive a fine of up to 10 penalty units (s4Education Act 1994 (Tas)).

School-aged children who will be attending State schools are entitled to enrolment at the State school which draws its students from the area in which his or her home is located – this is the ‘intake area’ for the school. If parents wish to enrol their child/ren in another school outside of the intake area, they are entitled to do so if the school has less than its maximum number of students (s19).

If you are looking to leave school before the age of 16, seek the advice of your guidance counsellor at school.

Punishment

A child may be suspended for a period of up to 2 weeks from school by the Principal according to the Education Act (s37). Only the Secretary of Education can decide if a child will be expelled, or even prohibited from enrolling at a State school (s38). It is normal procedure for the Secretary to provide written advice to this effect to the parents of the child. The Secretary also has a discretion to refuse the enrolment of an expelled child at another State school or other institution.

A child can be exempted from enrolment in a school if requested by their parents or guardian. If a parent of a child considers it to be in the best interest of that child to leave school early, they may make application for an exemption from the requirement under the Education Act (s5) to send the child to school. This is at the Secretary’s discretion.

Students

Full-time students over the age of 16 years may be eligible for Youth Allowance. Their parents' income and means may affect whether this is payable, unless they can show they are independent. Abstudy is available to students of Aboriginal or Torres Strait Island descent.

Employment

It is an offence to employ a child under the age of 11 years in street trading (Children, Young Persons and Their Families Act 1997 (Tas)s94(1)). The prohibition extends to children who have not reached 14 years of age if trading between 9pm and 5am is involved (s94(2)). An exception exists however for those children acting on behalf of a school or other charitable purpose (s94(3)).

It is also an offence to employ a child while they should be at school (Education Act 1994 (Tas)s82) although if the circumstances warrant it, authorisation may be granted by the Secretary of the Department of Education. This means that traditional after school jobs, such as paper rounds, and other tasks are legal.
It is an offence to permit a child under 14 to participate in restricted categories of ‘public entertainment’ CYPFAs96). This does not include public entertainment where the net proceeds are devoted to the benefit of a school or a charitable purpose or takes place on premises used for religious services.

Children under 16 years of age may not be employed underground in a mine, drive tractors unless supervised, operate dangerous machinery, or (unless they are apprenticed) undertake electro-plating. Children under 18 years of age cannot undertake abrasive blasting or lead processing. They also cannot hold a certificate of competency (as, for example, a welder or a boiler attendant). Where a child is employed, the relevant award or industrial agreement may have special provisions for young people.

Unemployed children aged over 16 may qualify for Youth Allowance. In certain circumstances, for example where the child is homeless, a child may qualify for a Centrelink income support payment under the age of 16.

Leaving Home

Young people can face legal problems if they leave home. Up to the age of 17 years, the Department of Health and Human Services may seek to intervene if they believe a child is ‘at risk’ of being neglected or their guardians are unable or unwilling to exercise adequate supervision and control. The Department may also intervene for those children that are not attending school regularly. Generally the Department is reluctant to intervene with those aged over the age of 14.

The age of 17 is generally the age at which a person may leave home. Although young people who are approaching that age would not normally be forced to go home against their wishes they can be subject to government intervention. It depends on the facts, especially the attitudes of the parents, the maturity of the young person and other factors, such as satisfactory accommodation and employment, and a style of life that the authorities regard as reasonable.

Some income support is available for 16-20 year olds through a government provided pension known as Youth Allowance. However, to be successful for a Youth Allowance claim, generally the applicant must have either completed their final year of secondary college (eg. year 12), be undertaking full-time study, or have agreed to enter into a Youth Allowance Activity Agreement.

Personal Choices

Smoking

In Tasmania it is an offence to sell cigarettes to anyone under 18 years of age. Section 64 of the Public Health Act 1997 (Tas) provides that the sale of cigarettes to children is illegal. A breach of the provisions carries a maximum fine of $5,000 for a first offence and $10,000 for a subsequent offence. It is not however an offence for an individual aged under 18 to buy cigarettes. If an individual is caught smoking or a nominated officer believes that a child has smoked they may be warned or cautioned or alternatively given information (s63(1)Public Health Act 1997). In such circumstances the child must give their name and address, the name of their parent/s and information relating to where the tobacco product was bought (s63(3)Public Health Act 1997).  

Drinking

It is an offence for a person under the age of 18 years to consume or possess liquor in a public place (s13Police Offences Act 1935 (Tas)).  It is an offence for a person under the age of 18 to buy, purchase for another, consume or have in their possession liquor on licensed premises. The fine is a maximum of 10 penalty units (s73Liquor Licensing Act 1990 (Tas)).

Some licensed premises may have areas designated as an area where persons under the age of 18 years may not enter or remain (s84, Liquor Licensing Act). For example, some areas allow children to remain for the purposes of having a meal or if they are in the company of a parent or guardian. The area should have a sign indicating that it is a restricted area. If a police officer suspects that an offence under the Act has been committed by a young person, that person must supply their name, address and date of birth upon request. Where such provisions exist, minors must be removed from those premises.

Tattooing and Body Piercing

It is not an offence to tattoo or pierce a person under 18 years of age. However, in order for the tattooing to take place, many tattoo parlours require a permission slip to be signed by either a parent or guardian. This is an industry self-regulation issue.

Legal Matters

Contracts and Leases

The general rule is that people under 18 are not bound by contracts, leases and other transactions, but such agreements can be enforced against the other party at the option of the young person. There are two exceptions to this rule. In both cases, the agreement can be enforced against the young person where:

  • the contract is for goods and services basic to the support of life, and certain other goods and services 'appropriate to the age and station in life' of the young person. This includes mobile phones;
  • the contract is for apprenticeship or service.

In practice, landlords and other people doing business with minors will often require someone (for example, a parent) to guarantee that the minor fulfils their part of the bargain. This makes the guarantor (that is, the person giving the guarantee) liable as well as the minor.

Wills

Under the Wills Act 2008 (Tas), a minor (a person under 18 years of age) cannot make a will unless they are married, or intending to marry (s7).

Firearms

Under the Firearms Act 1996 (Tas) no one can use, own, buy or sell a gun unless the person holds a gun licence or is otherwise authorised.  The requirements for a licence are that the person is at least 18 years of age. A person under the age of 18 years must not possess or use a firearm unless the person is the holder of a minor’s permit. A young person can apply for a minor’s permit if they are over 12 and under 18 years, are a fit and proper person and have the written permission of a parent or guardian. A minor’s permit allows that young person to possess a specified firearm under the supervision of a holder of a licence or a person approved to supervise young people in receiving instruction in the safe use of a firearm or target shooting on approved range.

Court Proceedings

Criminal Matters

Children's rights in relation to police questioning, arrest and interrogation, criminal responsibility, court and criminal proceedings are dealt with under Youth Justice.

Civil Court Proceedings

A person under 18 (a minor) cannot sue another person in a civil action without a ‘next friend’. This is an adult whose name appears on the court documents and who guarantees to pay costs if they are ordered against the minor. If a person under 18 is sued, the defence must name an adult (usually a parent) as a next friend.

If a person under 18 is suing and wants to settle out of court, the settlement must be approved by the court. For example, a 16 year old injured in a car accident may sue to recover damages for those injuries. In almost all such cases, negotiations will take place before the case actually goes to court and an agreement may be reached on the amount of damages to be paid. The agreed damages must be approved by the court, whether or not a statement of claim has been issued (‘infants compromise’).

If a person under 18 recovers damages (for example, for injuries) the money must (unless the court orders otherwise) be paid to the Public Trustee to be held in trust for the child until they reach the age of majority at 18 years of age. Payments can be advanced for education or for other reasons which the Public Trustee finds are in the minor’s interest.

Any court document must be served on the person under 18 by serving it on their parent or guardian, or the person with whom the child resides. Notwithstanding this rule, a court may determine that service in a particular case on a child is effective.

Evidence in Court

In all courts, a child may give evidence on oath if they can understand the nature and consequences of the oath. Children are not under any disability in giving evidence before a court, and a judge cannot give a warning that evidence from children is unreliable. However, a judge can give a warning if a particular child's evidence may be unreliable and the reasons why (s165AEvidence Act 2001 (Tas)).

Sex and Relationships

Sexual Relationships

It is a crime for any person to have sexual intercourse with a person under 17 years of age. Consent is a defence in the following circumstances:

  • where the person is 15 years or older, the accused person is not more than five years older; or
  • where the person is 12 years or older, the accused person is not more than three years older.

Considering that there is a great deal of police and prosecution discretion in prosecuting a charge of sexual intercourse with a young person, the activities of teenagers amongst themselves are unlikely to come to the attention of the courts. It is where adults engage in sexual relations with children that most issues occur. There is also a defence if the accused person believed on reasonable grounds that the other person was 17 years or older (s124Criminal Code Act 1924 (Tas)). It is a crime for a parent to have sexual intercourse with, or sexually assault, their child, and for siblings to engage in sexual relations (s133, Criminal Code Act).

Marriage

The marriageable age for females and males is 18 years. Between the ages of 16 years and 18 years young people need the consent of their parents/guardians or the authorisation of a magistrate or judge in a state court to marry. The court needs to be satisfied that the circumstances are 'so exceptional and unusual as to justify the making of the order' (ss1112 and 13Marriage Act 1961 (Cth)). The court may dispense with the parents' consent in certain cases. The young person must produce a certificate showing that the young person has received marriage counselling.

Voting, Driving and Passports

Driving

There were changes in 2008 to the learner and provisional driver structures for novice drivers. All licensing processes take place through Service Tasmania. A young person can apply for a learner's permit (L1) for a car or motorcycle at the age of 15 years 11 months. This requires sitting a multiple choice test on road rules and knowledge. At 16 years and 3 months, a person can take an L2 practical driving assessment, and if they pass receive their L2 license. After this, it is a minimum of 9 months and 50 hours experience before booking and completing the P1 practical driving assessment. This means that the earliest a young person can obtain their P1 license is 17 years of age.

A learner's licence can only be obtained after successful completion of a written road law test, and (in the case of a learner's permit for a motor cycle) a training course. A learner's licence allows the person to drive a car or motorcycle on the road under supervision. Whilst driving:

  • a licensed driver must be seated beside the learner (in the case of a car);
  • 'L' plates must be displayed;
  • a speed of 80 km/h must not be exceeded for an L1 driver, or 10km below the fixed speed limit for L2;
  • the young person must have no alcohol in their blood; and
  • in the case of a motorcycle learner, they cannot ride between sunset and sunrise.

Once a driver has progressed to the provisional driver stage, there are two stages – P1 and P2. P1 licenses and P2 have the following requirements:

  • 'P' plates must be displayed;
  • A P1 license must not exceed a speed of 10 km/h below the fixed speed limit; and
  • the person must have no alcohol in their blood.

The P1 license must be held for 12 continuous months. If this happens, a driver can then pay for their P2 license. The P2 license has age dependent requirements. If a P2 license holder is 18 – 23 years of age, they must hold their P2 for a minimum of 2 years. 23 – 25 years of age requires holding the P2 until they are 25 or for 12 months, whichever is the longest. Those over 25 need to hold their P2 for 12 months before the are upgraded to a full license. This needs to be paid for at Service Tasmania, as with all other fees. See the Service Tasmania website for more information on novice drivers.

Voting

Voting becomes compulsory at 18 for Commonwealth and State Government elections. A person over the age of 18 may vote in local government elections if enrolled. You can access enrolment forms online.

Passports

Passports are regulated by Commonwealth law under the Australian Passports Act 2005 (Cth). Normally, an unmarried person under the age of 18 will not be issued a passport without the consent of:

  • each person entitled to custody, guardianship or access; or
  • each person who has residence, contact or specific issues orders in relation to the child (s11).

Exceptions to this are where a court has allowed the minor to leave Australia; where the physical or mental welfare of the person would be adversely affected if the passport were not granted; or where the passport is urgently required because of family crisis, and a guardian or custodian cannot be contacted.

Disability

What is Disability?

The Disability Services Act 2011 (Tas) provides a definition of disability. This requires:

  • cognitive, intellectual, psychiatric, sensory or physical impairment, or a combination of these
  • permanence of the condition, or likelihood of permanence
  • a substantial restriction in the capacity of the person to carry out a profession, business or occupation, or participate in social or cultural life
  • a need for continuing significant support services
  • can be of a chronic episodic nature, rather than consistently ongoing. Schizophrenic episodes may qualify as being of a chronic episodic nature.

Disabilities are many and various. A person in a wheelchair is a person with a disability. A person with autism is a person with a disability. A person with muscular dystrophy is a person with a disability. A person with a disability can be of higher than average intelligence, they can be sportspeople and prominent members of the community. Having a disability does not prohibit a fulfilling engagement with life and the world. In fact, people with disabilities are no different than you or I. Everyone has something they are able to do, and something they are unable to do – everyone has abilities and disabilities.

A person with a disability is entitled to respect and regard. Some people with disabilities will be more vulnerable to others, because of their cognitive or intellectual impairment. Much of this chapter is directed toward the law surrounding these types of disability.

Government Departments and Services

The Department of Health and Human Services

The DHHS has a range of services, with information accessible on their website. The main Act under which the DHHS functions is the Disability Services Act 2011. This Act gives the DHHS powers to intervene to protect the rights of intellectually disabled people. It has the power of licensing training centres (that is, workshops) and residential centres (for example, boarding houses) for disabled people. The DHHS can insist on conditions being improved and can withdraw licences if this is not done.

The range of services the DHHS provides include: community access services, information and referral services, advocacy services, accommodation support services, individual support programs and respite services. See the website for more details.

DHHS officials can, with the written permission of the Secretary of the DHHS, enter and inspect specialist disability service provider premises in order to assess compliance with standards set out on the Disability Services Act. The Department has a general contact site where queries and complaints can be directed if there is an issue with services provided.

The Ombudsman

The Ombudsman can investigate the administrative conduct of government departments and prescribed and statutory authorities at both state and federal level, as well as local councils. See the Ombudsman section. Otherwise you can see the Ombudsman website, which gives step-by-step instructions on making a complaint.

Access to Information

There is no law saying that everyone is legally entitled to all information about themselves, but everyone should have access to information about themselves that affects their well-being. It is proper to ask for this information, and to keep asking until an answer is given. If the answer is given in terms that the person doesn’t understand, they should ask to have it explained more simply. In many cases, the information they seek will be provided without any legal obligation.

Information contained in files and documents held by Commonwealth government departments and authorities is available under the Commonwealth Freedom of Information Act 1982. Information contained in files and documents held by Tasmanian government departments and authorities is available under the Tasmanian Right to Information Act 2009. There is also the Tasmanian Personal Information Protection Act 2004. This Act applies only as far as it is not inconsistent with the Right to Information Act 2009.

There is a problem associated with the large amounts of personal information held by medical and education authorities, health professionals, employers and government departments. Sometimes such information is disclosed without the knowledge or consent of the person concerned, causing prejudice or embarrassment to that person. Damage from such disclosures is even greater where the information is out of date, misleading or incomplete. There is now extensive protection of information held by Commonwealth government and other agencies under Commonwealth privacy legislation. See Privacy and Right to/Freedom of Information.

Work and Domestic Life

Care Givers

‘Care givers’ here refers to all people who have regular ‘professional’ dealings with disabled people, including supervisors at sheltered workshops and activity therapy centres, staff at residences or nursing homes, and other disability ‘professionals’. In terms of legal rights and liabilities, there is no difference between people employed by Federal or State Governments and people employed in private institutions.

Intentional Interference

The legal rights of disabled people to live free from physical force, intimidation, coercion and imprisonment are the same as for all other citizens. An assault does not necessarily require physical contact. It may be committed by intending to arouse fear of immediate physical contact in another person. For example, a care giver pointing a knife at a person with a disability with the intention of arousing fear that the knife will be used, commits an assault.

A battery is committed by intentionally bringing about a harmful or offensive contact with another person without that person's fully informed consent. The person need not even be conscious of the interference at the time of the battery. For example, a care giver who takes a blood sample from a person with a disability without that person’s fully informed consent commits a battery. This would be the case even if the person with a disability was asleep or drugged.

Wrongful imprisonment is a civil action that protects a person's freedom from physical restraint. A person may be wrongfully imprisoned if they submit to imprisonment because of the threat of force. A care giver who locks a person with a disability in a room, commits wrongful imprisonment. The person with a disability need not even know that they had been locked in for the wrong to be committed. Accordingly, a care giver who locks the bedroom door of a sleeping person with a disability commits a wrongful imprisonment.

This area of the law raises the question of the sometimes used practice of placing a person with a disability in a locked room to ‘cool down’ or as a form of behaviour management. This practice is a type of ‘time out’. Under the current law, the locked room practice undoubtedly exposes the care giver to civil liability. However, if the locked room is used in a carefully considered and supervised way, the likelihood of anyone being sued would be very slight.

Defences to intentional wrongs

There are several defences to the charge of an intentional wrong. They include: consent; self defence; reasonable discipline; and necessity.

A person may give informed consent to intentional physical interferences. In the case of a blood sample taken from a person with a disability, that person must be aware of the basic nature of the procedure. If the care giver obtains informed consent for one procedure, this would not be a defence if the care giver then performed a more extensive procedure.

A person may use reasonable force in self-defence (that is, in defending themselves from attack). What force will be reasonable depends on the nature of the attack. A care giver who is being punched would normally be justified in punching and wrestling with a person with a disability to subdue the attack. If the particular person with a disability had a history of violence, the care giver may be justified in using greater force. The weapons used by the attacker (for example, a knife) are relevant in deciding what an appropriate response would be.

A person may also use reasonable force in coming to the defence of a third person. If a particular person with a disability attacks another person with a disability, a care giver would be justified, using the same considerations as above (that is, the history of the particular attacker, types of weapons, and so on) in intervening in the defence of a third person.

A parent (or a person standing in the position of a parent) can enforce reasonable discipline against a child (that is, by physical force or confinement). The force used must not be excessive. But it seems clear that the current law does not recognise a power of reasonable discipline over an adult, except where it involves prevention of an attack on others or themselves.

A person may interfere with the personal or property interests of another person in the case of necessity (for example, in order to avert an imminent danger). The danger must be a serious danger. A care giver would be justified in restraining a person with a disability who was clearly intending to throw themselves under a moving car. Similarly, a care giver in a sheltered workshop would be justified in restraining a person who intended to go too near dangerous machinery.

Negligence

If a person owes a 'duty of care' to another, and fails in that duty so that damage is suffered as a result, they can be sued for negligence. A care giver will undoubtedly owe a duty to be careful to disabled people with whom they have a professional relationship, but the most important question for care givers is the precise requirements of that duty. The usual requirements of a duty of care are that a person should exercise the same care as a hypothetical reasonable person. That standard can change over time, as community values change. If a person undertakes work that calls for special skills, such as nursing, then they must measure up to the standard of proficiency that is required in that profession which will be higher than that expected of the reasonable person.

It is unclear what level of duty of care is required of care givers without special skills. It may be that such care givers owe a duty to people within their responsibility only marginally higher than the ordinary duty of the 'reasonable' person. As care givers become better trained and their job roles more closely defined, it can be expected that the required standard of care will rise.

Following are some examples of situations in which care givers commonly find themselves.

Administering medication to a person with a disability

Even when a care giver has no medical training, they may be liable in one of two ways. Firstly, if the administration of the medication is simple, a reasonable person would take care to administer the correct amount, or they may be liable. Secondly, if the administration is complex, a reasonable person would ensure that a doctor or some other medically qualified person administered the medication. However, it may be that, in an emergency, a care giver would be acting reasonably in attempting to administer the medication.

Helping a person with a disability

When helping a person with a disability, for instance, to bathe, if the care giver didn't check the water temperature, they could be liable to a person with a disability who was badly scalded. If the care giver placed a person with a disability in an extremely hot bath, the care giver could be liable for damage caused to the person with a disability by a heart attack, even though the person with a disability had an abnormally weak heart.

The Duty to Physically Restrain Others

A particular problem for care givers is whether they owe a duty of care to third parties who may be injured by acts of a person with a disability. For example, a care giver may know that a particular person with a disability, if allowed to go shopping on their own, will cause damage to the property of shop owners. Does the care giver owe a duty to the shop owner to prevent the person with a disability from going shopping on their own? A similar question is whether care givers have a duty to stop intellectually disabled people from harming themselves.

The question is a complicated one, and two sorts of duty should be distinguished, that is, a general duty of care, and a specific duty to physically restrain a person with a disability. For example, a care giver in a group home who knows that a person with a disability in the group is likely to bite strangers has a general duty to the person with a disability and to third parties to plan any excursion carefully to minimise the risk of injury. However if the care giver has carefully planned an excursion, and a third party has unexpectedly wandered close to the group, the specific duty of the care giver to restrain the person with a disability is unclear.

The general principle is probably that in the absence of a right of control, the care giver will not have a duty to restrain an intellectually person with a disability, but this is not a settled point. Care givers should therefore check with their employer to ensure that they are adequately insured against any potential liability.

Who Pays for Wrongs?

Where a person suffers because of negligence or intentional interference they can sue for damages. The general principle is that people are responsible for their own civil wrongs. However, employers are vicariously liable for the wrongs committed by their employees in the ordinary course of carrying on their job. Most care givers will be employees.

If only the employer is sued then that person will have to pay all of the damages. If both the employer and the employee are sued, then the court will divide the liability for damages between them. If only the employee is sued, then the employee can have the employer made a party to the case, and again the court will divide liability for damages between them.

Accordingly, individual care givers, if sued by disabled people and held to be liable, will personally have to pay a percentage of the damages due to that person with a disability. While it is true many lawyers would advise clients to sue only the employer, it may be that a care giver can be finally liable. Accordingly, it is crucial for care givers to make sure that their employer has adequate insurance to cover liability for civil wrongs.

Housing

This section is concerned with residential facilities such as boarding houses, group homes and nursing homes. There is usually no difference in the legal rights of people in government-controlled or in private institutions.

Licensing of Residential Facilities

General requirements (for example, fire standards or hygiene) are administered by local government and semi-government authorities. There are general standards for residential facilities of all kinds.

No specific legislation governing residential facilities is in force at present, however note should be made of the Disability Services Act 2011, which deals with the provision of services for the disabled, including accommodation, and sets the standards for the provision of those services. Complaints can be directed to the DHHS or the Ombudsman.

Renting

Problems often arise for disabled people in boarding houses, hostels, and other residences when landlords impose large rent increases or attempt to evict residents. Disabled people often have a licence and not a lease. This is normally because they will not have a right to exclusive possession of the premises (for example, someone else, usually the proprietor, can enter their room/flat at any time). A licence does not normally protect a tenant's rights to the same extent as a lease.

Accidents and Injuries

People injured in residential facilities may be able to take action against the persons or bodies responsible for the premises if there has been a breach of duty of care. See Accidents.

Personal Relationships

A person with an intellectual disability has the same right as anyone else to have friendships, sexual relationships, to live with someone or to marry and have children. The only qualification of this is that which arises from any guardianship order which may be enforced in relation to the person.

If a person with an intellectual disability is over the legal age of consent they can decide to have sexual relationships. A parent cannot legally prevent a child who is over the age of consent from having sexual relationships.

Marriage and de facto relationships

Any person is free to marry provided they are old enough and they generally understand the nature and effect of the marriage ceremony. There is no legal reason why a person with an intellectual disability may not marry. They can also register a significant relationship, and qualify as being in a de facto relationship.

The Family Law Act 1975 (Cth) covers married relationships, and de facto relationships their breakdown and the welfare of the children of the marriage. There is no presumption in the law that a person with a disability is an unfit parent, although in custody matters a disabled parent will have a much better chance of success if they can show an awareness of the needs of the child, and can support the child either by themselves or with assistance from friends, family, or government agencies.

Family planning

Having children can impose severe financial and emotional strain upon individuals or a relationship. Serious problems often arise for people with intellectual disabilities when they want to have children. Other people, including their parents and authorities, may think they should not have children. Contraception can be used to plan a family. The choice to use contraception and the form of contraception used, is up to the individual concerned.

Both women and men can undergo surgery for sterilisation. The operation is a more complicated one for women than for men. A person with an intellectual disability should be given the opportunity to be as fully involved in the decision-making as their circumstances permit.

Where an adult is legally incapable of making the decision, a sterilisation on non-therapeutic grounds, such as where there are problems of menstrual management or hygiene can only be performed with the approval of the Guardianship and Administration Board. This is because sterilisation falls into the category of ‘special treatment’ under the Guardianship and Administration Act 1995 in respect of which ‘persons responsible’, who can normally give substitute consent, lack capacity to give consent. Non-therapeutic grounds for sterilisation are distinct from medically indicated surgery necessitated by the presence of disease, such as cancer.

In the case of a child with a disability, authorisation must be sought from the Family Court before a non-therapeutic sterilisation may proceed as parents lack legal authority to give consent to such a substantial and irreversible procedure.

Adoption

The consent of the parent(s) is normally required before the court can make an adoption order concerning the child of a person with an intellectual disability. The court will refuse to make an order where there is not proper consent. This is the case when the consent is obtained by fraud, duress or improper means, or the person giving consent did not fully understand what they were doing.

The court may dispense with consent where the parent is incapable of properly considering the question because of their mental or physical condition. The court will require extensive information on the circumstances of the child before making the order. Where adequate arrangements have been made for the child, for example where the child is being cared for by the grandparents or other people with whom the child has a good relationship, the court is unlikely to interfere.

Marion’s Case – sterilisation

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery were within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood.

The impact of this case has been that parents can not provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

Disability and the Law

The Protection of Rights

People with a disability have many of the same rights as everyone else in our society. They can use the same legal and non-legal remedies if those rights are infringed. They (or their representatives) can take action in the usual way to protect their rights (for example, for privacy, sexual relationships, and marriage). They can also use the provisions of anti-discrimination laws to enforce their rights to housing, education, and employment. However, there are differences in their legal status, and the means by which they access legal remedies or other forms of advocacy to have their issues heard. For example, they are often not tenants entitled to exclusive possession of premises, but licensees, which limits their rights of exclusion.

Legal Action and Help

Where the rights of disabled people have been infringed, court action can be commenced to enforce them. Disputes can also be lodged with the Australian Human Rights Commissioner or the Tasmanian Anti-Discrimination Commissioner. Usually, another person referred to as a ‘next friend’ acts on their behalf during the court proceedings. This would normally be a relative or friend of the person with a disability. Where court proceedings are involved, it is important to choose a solicitor who is familiar with the area of intellectual disability.

Legal aid may be available to intellectually disabled people in the same way as to other people. They may be eligible for assistance from the Legal Aid Commission depending on the nature of the legal matter and whether the person meets other eligibility criteria. Community legal centres have a particular interest in the legal problems of intellectually disabled people and provide advice and referral.

Anti-Discrimination Law

Anti-discrimination law aims to ensure that all people have an equal opportunity to get the things in life they need — a place to live, a job, health care, and a public education. Equal opportunity will often involve positive discrimination, which is a means of helping to level the playing field, and ensure equal opportunity through enabling people who are identified in legislation as being prone to discrimination. This includes intellectually disabled people.

Anti-discrimination law does not give a person with an intellectual disability (or anyone else) any special rights over other people. Rather, it tries to ensure that each person will have equal access to these things, and it makes it unlawful to discriminate by providing less favourable treatment because of disability.

Commonwealth legislation

The Commonwealth Government has enacted legislation dealing with discrimination generally. The Australian Human Rights Commission Act 1986 (Cth), which was previously the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Disability Discrimination Act 1992. These Acts are also discussed in ‘Discrimination’.

Tasmanian legislation

The Anti-Discrimination Act 1998 and the Disability Services Act 2011 are central to the protection of the rights of intellectually disabled people in Tasmania. Sections 15 and 16 of the Anti-Discrimination Act prohibit indirect discrimination and discrimination on the ground of impairment. Persons who are employed by the State Government of Tasmania are covered by the Tasmanian State Service Act 2000.

The Disability Services Act covers the provision of funding for specialist disability services, and for the inspection and regulation of these services. This is particularly important in terms of discrimination, because it goes to maintaining standards of care and services for a vulnerable section of the community. ‘Specialist disability services’ covers accommodation all the way through to education, training, recreation, therapy, transport. These are many of the services provided to people with disabilities. The Act sets out the principles and standards that are to govern both the administration of the Act, and the assessment of specialist disability services providers. This includes respect for people with disabilities, working toward their best interests, and working toward the opportunity for full and effective participation and inclusion in society.

Consumer Protection

Where a person with an intellectual disability has made an unwise contract or gift, the law can assist in a number of ways.

Incapacity

A person who lacks general understanding of the nature and effect of a contract or gift is said by the law to have ‘incapacity’. In deciding whether incapacity applies to a particular transaction, attention is paid to the level of understanding of the person, the complexity of the transaction and the value of the property involved. The more complex the transaction and higher the value of the properties, the greater is the understanding required.

Incapacity has no effect on contracts for purchase of ‘necessaries’ providing only a reasonable price was paid. Necessaries are things a person needs to maintain a reasonable lifestyle (for example, food, clothing, medical treatment, rent). Any other contract may be overturned by a person with a disability if:

  • the person lacked capacity for the transaction;
  • the other person involved realised or ought to have realised that the person lacked capacity;
  • the person with a disability can give back at least most of the benefits they have received under the contract (for example, if the contract was for purchase of a television, it is necessary that the television can be given back in much the same condition as when it was purchased); and
  • property that the person with a disability wants back has not been sold to someone else who is not aware of the person with a disability's incapacity.

A gift may be overturned if some of the above conditions apply. It is not necessary that the recipient of the gift ought to have realised that incapacity applied. Sometimes a person with a disability will enter a contract because (or partly because) of a misleading statement. This is called misrepresentation (for example, a car salesperson may say ‘this car has only done 20,000 kilometres’ when the car has in fact done 80,000).

Sometimes a misrepresentation is fraudulent (that is, intentionally false or made without caring whether it is false) in which case the person with a disability can normally overturn the contract and sue for damages to recover any loss suffered. If a misrepresentation is made innocently, the contract can still normally be overturned, but the person with a disability cannot usually sue for damages.

The court can also overturn transactions entered into following ‘undue influence’ or ‘unconscionable bargaining’. There is a ‘presumption’ of undue influence where:

  • a transaction is between people whose relationships the law recognises as giving rise to risk of undue influence, for example, doctor and patient, parent and child;
  • a person with a disability gains much less than they give in a transaction with a person in whom the person with a disability has great trust and confidence, for example, if a person with a disability gives their television to a house-parent whom the person with a disability depends on for advice.

Where this presumption of undue influence arises, it is then up to the person without a disability to prove that the person with a disability made an informed and independent decision to enter the transaction. If the person with a disability received independent advice, this would be easier to prove.

Consumer Protection Legislation

The Competition and Consumer Act 2010 applies to all those who provide goods or services. A person who believes that they have been the victim of misrepresentation or unconscionable conduct should seek legal aid or contact a community legal service.

Other Ways to Exercise Rights

Other avenues are available to people with disabilities (or a friend or relative) to exercise their rights.

  • The media: current affairs shows are keen to expose consumer rip-offs, especially where someone such as a person with an intellectual disability has been taken advantage of;
  • The Office of Consumer Affairs will investigate complaints about fraudulent or unfair commercial practices and, although Consumer Affairs cannot force a trader to remedy a complaint, most traders do not wish to be off-side with it, such that the result is often full or partial satisfaction for the consumer;
  • The civil division of the Magistrates Court or the Small Claims Court: these courts can deal with a dispute involving a contract between a consumer and a trader for the supply of goods or services (for example, where a person has bought a washing machine which is defective, or where a person has their car repaired but is not happy with the quality of the work).  The Small Claims Court can only deal with disputes involving less than $3,000. It can order that money be repaid or that works be carried out.

Complaints

Complaints about an infringement of rights can be taken to a local Member of Parliament. It is their job to follow up a complaint. When approaching a Member of Parliament it is best to:

  • see them in person — make an appointment;
  • present a written account of complaints;
  • take someone along for support.

Complaints and representations to Members of Parliament and the relevant Minister can be effective but must be followed up. Representations by action groups, or collective representation for common complaints, may also be an effective way of drawing attention to particular problems.

Complaints can also be directed to the Ombudsman.

The Media

The media can be a useful tool in bringing abuses of the rights of disabled people to public attention. However individual person with a disability should take care as the media can also abuse their rights.

Negotiation

Very often problems can be sorted out satisfactorily through negotiation before legal action is taken. One of the problems in negotiation for disabled people and their advocates, is that they often feel themselves to be powerless and can be intimidated by an organisation or by ‘able’ people.

In many cases negotiation using a third person (for example, a lawyer) adds balance to the negotiation. This also adds credibility to the person with a disability's case.

Citizen Advocacy

A ‘citizen advocate’ is an ordinary member of the community who becomes a long-term friend and adviser for a person with an intellectual disability. The advocate can help the person with an intellectual disability in making a complaint, for example, by complaining to the Ombudsman on behalf of a person with a disability.

Ideally, most citizen advocates would be trained by and registered with a local citizen advocacy office. However many people become citizen advocates simply by forming a friendship with a person with a disability.

Citizen advocates have no formal legal status. However, Government departments and other organisations are developing greater recognition of the value of citizen advocacy and are often willing to give advocates the same sort of informal recognition that they give to the next-of-kin of disabled people.

The Criminal Justice System

A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person accused of a crime, or merely as a witness. While the former are the two main areas of concern, some of the same problems may occur in all cases. For example, does the particular person with a disability have the legal capacity to give evidence?

As a Victim of Crime

According to the law, a person with an intellectual disability who is the victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. There are some understandable reasons for this, for example even where a person with an intellectual disability does manage to contact the police, or someone else does so on their behalf, the police may decide not to prosecute because they feel that the person with a disability will not be a reliable witness.

A person can give evidence in court as long as they generally understand that they have promised to tell the truth (and what that means) and that telling a lie is against the law. Even if the person is permitted to give evidence, the judge or jury may not see that evidence as being as important as other evidence because they believe the person's understanding is insufficient.

Accused of a Crime

Intellectually disabled people accused of committing crimes are particularly vulnerable, because their special needs are often not met, and because the legal system tends to discriminate against the less articulate. Most criminal offences require an intention to do an unlawful act, or recklessness as to whether or not it was done. Some intellectually disabled people may be so disabled as to be incapable of forming an intention to commit a crime.

The defence most commonly thought of in relation to intellectually disabled people is insanity. Insanity is a complete defence in respect of crime involving a mental element. Someone who is found not guilty in this way may be detained ‘at the Governor's pleasure’ in a gaol or institution. They are released when the Governor chooses and often serve longer 'sentences' than people who are convicted and sentenced to gaol for the offence.

The first contact an accused is likely to have with the criminal justice system is with the police. Depending on police attitudes to the accused and their awareness of the person's disability, the police may exercise their discretion and with minor offences give a warning rather than charge someone.

Police in Tasmania receive only limited training in regard to 'mentally disturbed' people and most of this is with reference to the Mental Health Act and mentally ill people, not with intellectually disabled people. Thus it is particularly important for intellectually disabled people to be accompanied and assisted when being questioned by police officers.

There are guidelines in the Police Commissioner's Instructions to Police which, while they are not legally enforceable, police should follow. One of these is that any person who is suspected of being of ‘feeble understanding’ should, if reasonably practicable, be questioned by police in the presence of a friend, parent, guardian or other responsible person not associated with the enquiry. Another states that such ‘special measures as are practicable and appropriate’ should be taken to ensure a fair interrogation. Where there is any doubt about the fairness of an interrogation of a person with a disability or the voluntariness of a confession, an application should be made to the Court to exclude such evidence. Confessions made to police by intellectually disabled people are particularly unreliable often because of the person with a disability’s desire to please.

Fitness to Plead and to Stand Trial

Every accused person is asked to plead guilty or not guilty. Silence is assumed to be a statement of not guilty. The court must be satisfied that an accused person is fit to plead, that is, that they understand the act of which they have been accused and can indicate a response. A person who is held unfit to plead may still be detained in custody (in gaol or a mental hospital) by the Minister, the Governor or by the Court.

In theory, fitness to stand trial is different to fitness to plead, and involves the accused person being able to comprehend what is going on generally in court. They must be able to understand the significance of telling the truth to the court, the nature of the charge and be able to instruct their solicitor. Again, someone considered unfit to stand trial can be remanded in custody.

Alternatives to Imprisonment

It is important to realise that even when a person with an intellectual disability has been convicted of a serious offence, there are alternatives to imprisonment. A solicitor who is aware of the person's disability should attempt to establish the person's ability and willingness to comply with any conditions which might be imposed if they are placed, for example, on a good behaviour bond. Awareness of the resources and support services available in the community is very important here.

While it is hoped that court officials will acquaint themselves with this information, it is ultimately up to the solicitor, citizen advocate, or any other friend to acquaint the magistrate or judge with what support is available for the particular offender. Failure to arrange ongoing assistance and support, and even supervision, will almost inevitably result in the person's reappearance one day in the criminal legal system.

Sheltered Workshops

There is no special law setting out and protecting the rights of workers in sheltered workshops except for licensing under the Disability Services Act. Sheltered workshops are also classified as training centres under this Act. The relevant law is the general law of employment which in Australia consists of industrial awards, the common law, and legislation.

Industrial awards are legally binding orders which set minimum standards for terms and conditions of work (for example, wages, sick pay entitlements and so on). There are currently no special awards for workers in sheltered workshops. However provision has been made in most Tasmanian awards to incorporate the Commonwealth initiative of the ‘Supported Wage System’ run through the Commonwealth Department of Family and Community Services. This allows for a person with a disability to be paid at a reduced rate following assessment of that person’s capacity for work.

The Common Law

The common law position of workers in sheltered workshops is unclear. Generally it has been assumed that they are not ‘employees’ within the common law definition (that is, someone with a contract of employment). While many people working in sheltered workshops could arguably come within the definition of ‘employee’, there has been no reported case on this point and common law protection is uncertain.

Legislation

Legislation also provides benefits for workers. The most significant Acts are the Industrial Relations Act 1984 (Tas), the  Workers Rehabilitation and Compensation Act 1988 (Tas), the Long Service Leave Act 1976 (Tas), and the Workplace Health and Safety Act 1995 (Tas). South Australia actually has an Intellectual Disability Services Award, however Tasmania does not have the same kind of legislative framework for intellectually disabled people. The only Act that makes explicit reference to people with disabilities is the Industrial Relations Act 1984.

Under the Industrial Relations Act, sheltered workshops are not required to meet minimum award rate requirements (s80). Workshops that also classify as religious or charitable institutions, or training centres may fall under the Disability Services Act, and so the standards under which people with disabilities carry out work will be covered by that Act. Section 79 provides a scheme means by which employees can receive payment of below award rates. An employer must seek authority to do so from the Tasmanian Industrial Commission. The minimum rate of pay will be established by the licence.

The Workplace Health and Safety Act defines workplaces as ‘any premises or place where an employee, contractor or self-employed person is or was employed or engaged in industry, and includes part of a workplace’. Sheltered workshops could fall under the definition of a workplace, and must comply with the same health and safety requirements as other industrial or shop premises under the Workplace Health and Safety Act. If not, the Disability Services Act provides positive standards for workshops that exclude, by implication, unsafe work standards.

The Workers Rehabilitation and Compensation Actsection 91 provides for the payment of compensation to people who are under a legal disability, which includes people with intellectual disability. However, whether a person with an intellectual disability in a sheltered workshop qualifies as an employee under this Act is unclear.

The Long Service Leave Act grants all workers two months paid leave after ten years continuous service (this can sometimes be with different employers) and one month paid leave for every five years work after that. There has been no reported case deciding whether sheltered workshops are bound to provide this benefit.

Issues

The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, the variety of work done and the range of work arrangements (which vary from workshop to workshop and even more from worker to worker) makes classification in any of the usual ways difficult. A test case would resolve some of the areas of uncertainty.

In the meantime, individuals can arrange their own protective work arrangements. In the absence of award or specific legislative protection, and while the common law position remains unclear, the legal situation of each worker is determined by the negotiated terms of work. Workers in sheltered workshops should be assisted (ideally in a group but, if necessary, individually) to decide and set down the terms upon which they will work (that is, draw up ‘standard form’ contracts). Some intellectually disabled workers with assistance are capable of this type of organisation.

If it appears to a court that both parties, employer and workers, intended these arrangements to be binding, then the court will enforce the agreement, whether it is technically a contract of employment or not.

Regardless of a person with a disability's employment status, certain rights in the workplace are no different to anywhere else. For example, sexual harassment in a sheltered workshop is unlawful.

Wills

Providing for the needs of a person with a disability

It is important for everyone to make a will. This particularly applies if a person has an intellectually disabled child who is unable to look after their own property. A will can be made flexible enough to allow for improvements in a person with a disability's ability.

Where there is no will, a disabled child will be entitled to a share of the parent's estate (unless the estate is small and the person dies leaving a spouse), but where there is no specific provision in a will the law does not have the flexibility to ensure that the share is used to the person with a disability's maximum benefit. This means that it is very important to ensure that the will is clear in setting out the interests of that person.

Providing for a Person with a Disability

There are no hard and fast rules about making adequate provision for disabled children, but parents should be wary of only making a small provision for their disabled child. Parents sometimes do this because they feel that their disabled child is permanently placed in an institution or other residential facility, and that the child has modest needs. It is impossible to predict what the needs of the person with a disability will be ten or thirty years after the parents die (for example, the residential facility may have closed down or it may have had to put its fees up to well above the pension level).

Parents sometimes give all of their property to their non-disabled children and rely on them to look after their disabled brother or sister. One danger of this approach is that the non-disabled children may die first, perhaps many years before the person with a disability. Where parents do make much greater provision for one child than another the Supreme Court can vary the will under section 3 of the Testators Family Maintenance Act 1912 (Tas).

It is not normally desirable to leave property outright to an person with an intellectual disability, although this will not always be the case. Some disabled people have enough understanding to look after their property and to make wills themselves. The make-up of the estate, the person's nature and their level of disability should be considered in each situation. It is possible to give some property outright, with the bulk of property being given on trust.

Where a person with a disability is ‘absolutely entitled’ to property from a parent's estate because there is no will, or there is a will but it contains an outright gift to the person with a disability rather than setting up a trust, the property is handed to the person with a disability providing they have enough understanding to look after the property. If the person with a disability does not have that understanding then the person who has administered the parent's estate (the executors or, if there was no will, the administrator) is not allowed to hand the property over to the person with a disability. In these circumstances the person with a disability may have an administrator appointed under the Guardianship and Administration Act 1995 (Tas) who has legal authority to administer that person’s estate. Application can be made to the Guardianship and Administration Board for an administrator to be appointed.

Trusts

The alternative to leaving property outright to a person with a disability is to set up a trust under the will so that the property can be used for the benefit of the person with a disability. A trust basically amounts to appointing people who are called ‘trustees’ to use property in the way and for the purposes specified in the will.

For example, if parents only have one child, and that child is disabled, the parents could leave all their property to be used by trustees for the benefit of the disabled child. The will should say what happens to whatever property is left when the person with a disability dies. Income of a trust under a will is taxable. This means that it may be better to use money to buy something which can be used by the person with a disability (for example, a car or somewhere to live) rather than have it earn interest.

If parents have three children and only one of them is disabled, parents could, for example, leave one-third of their property to each of the non-disabled children, and the other third could be left in trust to be used for the benefit of the disabled child.

The will can be very specific about how much the trustees have to spend on the person with a disability, or it can give the trustees a wide discretion. Parents normally decide to give trustees a very wide discretion to pay to (or use for the benefit of) the person with a disability as much of the income of the trust as the trustees see fit. A similar discretion is normally also given to use the actual property which is being held in trust. Reasons for giving these broad discretions include:

  • they create maximum flexibility for the trustees to react to the changing needs and circumstances of the person with a disability;
  • they allow the trustees to remove or at least minimise the effect of the will on the person with a disability's social security benefits.

A disadvantage of giving broad discretions is that it limits what can be done if the person with a disability, or a friend of the person with a disability, does not feel that the trustees are fairly treating the person with a disability. This emphasises the importance of choosing suitable trustees.

The Trustees

The trustees will normally be the same people as the executors named in the will. The choice of trustees is obviously very important because of the discretion they are given and the length of time that they will have to administer the estate. Qualities to look for in trustees include:

  • youth — they may have to act for decades;
  • business sense — knowledge of investments, income tax and social security benefits;
  • independence from the family situation — trustees often will need to make decisions about how property is to be divided between the will-maker's children;
  • continued interest in the person with a disability — an awareness of their needs and desires and of advances in the methods of helping disabled people.

It is normally best not to appoint non-disabled children as the only trustees. This is because parents normally say in their wills that whatever is left over of the person with a disability's share when that person dies goes to the non-disabled children or their families. This places the non-disabled children in a difficult situation if they are the only trustees, because they know that whatever they do not spend on the person with a disability they end up getting themselves.

It is also better to have more than one trustee. They might include a non-disabled child, an accountant or solicitor or trustee company, an ‘advocate’ of the person with a disability and a friend of the family who takes an interest in the person with a disability.

If parents have no suitable people to appoint, it is best to appoint the Public Trustee or a private trustee companies. The advantages of these organisations are that they should continue to exist indefinitely, and they are cautious and sensible about investing money. Their disadvantage is that there are costs associated with their administration of the estate, and their involvement can be impersonal. The way to at least partially overcome this latter disadvantage is to include in the will a direction saying that the trustees must consult with, for example, the person with a disability and the persons or organisations providing day-to-day care for the person with a disability.

If one trustee dies, it is normally necessary for a new one to be appointed. Parents can set out in the will how this is to be done if they wish. Otherwise the Trustee Act provides a mechanism for this.

The remuneration to be received by the trustees should be arranged with the proposed trustees. It may be a percentage commission, a gift of a specified sum or the normal fees for an accountant or solicitor. Trustee companies normally charge a commission based on the initial value of the estate and a percentage of all income passing through the estate. If nothing is said in the will about remuneration, then the trustees can apply to the Supreme Court for a grant of commission.

The trustee's powers will generally be wide. It is very important that there be power to invest in some capital gain producing assets. In framing powers of investment potential, housing options should particularly be considered.

Housing for Disabled Children

It is obviously a matter of great concern to parents to be able to provide a good standard of housing for their disabled child on a long term basis.

If parents are in a position to leave their house to be lived in by the person with a disability this can be done through a trust in the will, providing the trustees can organise suitable backup facilities. For example, if parents have a three bedroom house it could be lived in by their disabled child and two boarders and the rent from the boarders could pay for the backup facilities. Sometimes a live-in houseparent might be necessary. The backup facilities might be available through the Department of Health and Human Services or local non-government organisations.

If parents are not sure whether suitable backup facilities will be available, they can direct their trustees to investigate the situation. If the facilities prove not to be available, the trustees can then be empowered to sell the house and hold the proceeds in trust for the person with a disability's benefit.

Sometimes parents might be able to give an organisation the use of a house in return for a promise to run the house as a group home for the disabled child and others. In this situation the trustees could be given power to terminate the arrangement if the organisation did not keep its side of the bargain.

Not too many parents would be able to leave a house in the way set out in the previous paragraphs. However, there are ways that such parents or their trustees could band together and buy a house to be occupied by the disabled child of each of them.

One way this could be done is through setting up a company similar to companies that own blocks of 'company title' home units. Each lot of trustees would own a share in the company and the share would entitle the person with a disability to live in the house. After the person with a disability died or moved out the trustees would sell their share to someone else.

Testamentary Guardians

Testamentary guardians are people appointed in the will to take over the parent's role as guardians of their children. However, as with parents, their powers only apply until the person with a disability is 18. There is no way that a parent can appoint a guardian for the rest of the person with a disability's life. However, just as many parents often continue to exercise a parental role in an informal way after a person with a disability reaches 18, so there will sometimes be someone who will fill this role when the parents die. Parents could in their wills declare it to be their wish that a named person do so.

Centrelink Payments

The disability support pension is affected by a person with a disability’s income. Income is defined in the Social Security Act 1991 (Cth) as an income amount earned, derived or received by the person for the person's own use or benefit. This would include someone who received benefit from a trust.

Rules about income-stream products such as annuities are complex and constantly changing. Parents or trustees should see a Centrelink financial adviser.

Property Not Governed by a Will

It is important to remember that not all property will always be covered by a will. For example, life insurance policies and superannuation benefits often go to a person specified in the policy or specified to the superannuation fund. If parents want these sorts of things to be covered by a trust, they need to make suitable arrangements.

Where a will-maker wishes to benefit a person with a disability, it is very important to have the will drawn up by a solicitor (or the Public Trustee or a trustee company if the parents want a trustee). Wills setting up trusts for disabled people are more complicated than most wills. Because of this, the will-maker should check that the solicitor is familiar with this area of the law.

Rights of a Beneficiary

A ‘beneficiary’ is a person who receives a gift or any other benefit under a will. An intellectually disabled beneficiary might:

  • receive a straight gift of money or other property;
  • be allowed to live in the family home for as long as they want;
  • be entitled to the income earned by a ‘Trust Fund’ set up under the will.

The most common situation is where the executors appointed in the will have a wide discretion about how much money they will pay to or use for the benefit of the intellectually disabled beneficiary. The job of the ‘executors’ or ‘trustees’ is to deal with the deceased person's property as spelt out in the will.

An intellectually disabled beneficiary has the same rights as any other beneficiary. These include rights to:

  • take executors to court if they have failed to comply with the will;
  • reimbursement where executors have used money for purposes not allowed in the will or where they have lost estate property through negligence;
  • ask the court to remove executors who are not doing their job properly;
  • ask the Registrar of the Probate Division of the Supreme Court to force executors to provide information about property income and expenditure.

Example

Jane is an intellectually disabled woman whose parents die leaving all of their estate to Jane's brother and sister. Jane (or someone on her behalf) applies to the court for a variation of the will. The court would probably order that Jane receive a good sized share of the estate. How big a share she would receive would depend on all of the circumstances. Sometimes she may get less than her brother and sister, sometimes more.

If Jane's parents set up a $10,000 trust fund for her but gave the rest of their $200,000 estate to Jane's brother and sister, the court would probably order that Jane's share be increased.

Alternatively, Jane's parents may have divided their estate equally between the three children and appointed trustees to invest Jane's share and to use the income as they see fit. If Jane is capable of living in, and wants to live in, a group home, but the trustees will not pay for this, Jane can apply to the court to intervene. The court might order that Jane's share be used to buy a house for herself and some friends or might order the trustees to pay rent for a house.

Will of a person with an intellectual disability

Some intellectually disabled people can make valid wills and some cannot. There are two basic requirements for the will to be valid. Firstly, the will-maker must have ‘testamentary capacity’ (be able to make a proper will). This requires that the person:

  • knows what a will is;
  • realises in general terms the amount and type of property they are disposing of; and
  • is able to weigh the moral claims that they should be considering.

Secondly, the will-maker must know and approve of the contents of the will. There is a strong presumption that this is the case where the will has been read by or to the will-maker. To protect a person with a disability's will from challenge, a number of precautions should be taken. While it is not necessary that the will-maker understands all of the legal terms in the will, it is preferable that the will be uncomplicated and in plain language. One of the witnesses to the will should be someone such as a psychologist. This person should sign a statement setting out that they were satisfied that the will-maker had testamentary capacity and knew and approved of the contents of the will. This statement should also set out the person's basis for being so satisfied, including details of the person's conversation about the will with the will-maker. If the will-maker cannot read, the statement should also say that prior to the will being signed, the witness heard the will read over to the will-maker who then stated that they approved the will.

The will should be drawn up by a solicitor experienced in will-making and, preferably, in dealing with intellectually disabled people, so that proper precautions are taken. The solicitor should keep comprehensive notes. If there is doubt as to whether a particular person is capable of making a valid will, the person should still be allowed to make the will.

If a person with an intellectual disability dies with no will or with an invalid will, then the 'intestacy' laws apply.

Under the Testators Family Maintenance Act 1912 (Tas) a person may, in certain circumstances, ask the Supreme Court to vary someone else's will. A person with a disability or someone on their behalf can do this just as anyone else can.

Statutory Wills

Provision now exists under the Guardianship and Administration Act 1995 (Tas) for the Guardianship and Administration Board to make a statutory will in appropriate circumstances.

When is it appropriate to make a Statutory Will?

Situations in which it may be appropriate to make a Statutory Will include where:

  • a person had testamentary capacity, never made a valid will and subsequently loses testamentary capacity; or
  • a person never had testamentary capacity and never made a valid will.

In these situations, when the person dies their property is distributed according to the rules of intestacy. It may be appropriate that provision be made in a Statutory Will for other or additional persons. An example of such provision may be for a person who has had the long term care of another person who lacks testamentary capacity.

The Board would not normally make an order for the execution of a Statutory Will if the proposed beneficiaries under the Statutory Will are the same persons who would inherit the person’s estate on an intestacy.

The Guardianship and Administration Board cannot make an order for the execution of a Statutory Will if there exists a prior valid will. If an application is made to the Board for an order for the execution of a Statutory Will, the Board is required to make such enquiries as are reasonable as to the possible existence of any prior will.

Before the Board will make an order for the execution of a Statutory Will, it must be satisfied that the person for whom the will is proposed does not have the capacity to make a valid will. In addition, the Board must consider the following matters:

  • any evidence relating to the wishes of the person for whom the will is proposed to be made, which may include the person’s present wishes as well as those expressed in the past;
  • the likelihood of that person acquiring or regaining capacity to make a will at any future time;
  • the interests of any person who would be entitled to receive any part of the estate of the person for whom the will is proposed to be made if the person died intestate;
  • the likelihood of an application being made under the Testator’s Family Maintenance Act 1912 (Tas)
  • the circumstances of any person for whom provision might be expected to be made;
  • any gift for a charitable or other purpose that that person might reasonably be expected to give or make by a will;
  • the likely assets of the estate of the person for whom the will is proposed.

If the Board determines that it is appropriate to make a Statutory Will it will make orders for its preparation. Once executed, a Statutory Will has the same effect as if it had been made by the person and the person had testamentary capacity.

Aboriginal Law

What is Aboriginal Law?

There is a distinction between Aboriginal law and the law which governs Aborigines in Australia today. . Aboriginal law is law that existed before the coming of the common law system that we continue to follow today.

For a long time, the idea of Aboriginal law existing in Australia, particularly in a place like Tasmania where Aboriginal society had been almost destroyed, was met with resistance by the legislature and courts of Australia. But Aboriginal law is a fact. It continues to exist in Aboriginal communities, including the Tasmanian Aboriginal community, to the extent that its members continue to observe customs and practices.

Australian law recognises certain aspects of Aboriginal law and custom within its own system. This includes such things as traditional rights to fishing, or land rights, community involvement in rehabilitating or punishing criminal offenders. Some of this law stems from developments in international law, and is generally reflective of greater recognition of the independent cultural identities of indigenous people across the world. This chapter sets out the important parts of Aboriginal law both as it affects Aborigines and the general Australian community.

What is Aboriginal law?

Aboriginal law is distinct from Australian law in that it covers all aspects of Aboriginal life – it is culture, land and law. The oral traditions of Aboriginal peoples inform Aboriginal law, the landscape is part of the oral tradition, and so the land is part of the law. The stories and the landmarks that indicate the stories create the law. In some ways you can draw parallels between Aboriginal law and Sharia law, derived from the Koran, in that it covers all aspects of life – family, community, crime. In the common law tradition, of which Australia is a part, many things we would consider to be social decisions, and not legal decisions, are considered to be part of Aboriginal law.

Because Aboriginal law is so different from common law, it can be difficult to understand. The Australian legal system does not guide us on how to behave in all aspects of our lives, but Aboriginal law does. Australian law doesn’t tell us who can and can’t eat a certain animal, or how infidelity in marriage should be punished. These