Late last year, the Commonwealth Government announced its plan to require telephone and internet service providers to retain certain data about their customers for two years. The Attorney-General appeared unable to explain what the law would cover, and protests and e-petitions were organised to oppose the plan. As a result, the Telecommunications (Intercepts and Access) Amendment (Data Retention) Bill 2014 was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for an inquiry. The committee received 204 submissions and conducted public hearings into the bill. The PJCIS includes both MHRs and Senators, from both Government and Opposition. While committees like this sometimes split along party lines and produce separate reports, in this case the PJCIS produced a unanimous report that recommended significant changes to the bill. Key changes include ensuring the scope of the data to be retained is defined in the legislation (and not delegated to the Attorney-General), and preventing the data being accessed in civil cases (such as copyright holders suing downloaders) without approval from the government. If the recommendations are adopted, the Government and the Opposition will be able to pass the legislation through the Senate despite the ongoing concerns of crossbenchers about breaches of privacy, the impact on journalists, and the lack of a warrant requirement to access the data.
Queensland traffic police have been issuing fines as a result of “Operation Jump Street—a mostly covert operation aimed at monitoring driver behaviour in school zones”. Although it doesn’t involve infiltrating schools, the program is named after 21 Jump Street, an American TV series about police working undercover by posing as students. Police in Florida adopted a similar approach, sending officers into high schools to make drug arrests; This American Life reported on a boy who was entrapped after falling in love with the undercover agent. They recently turned the story into a short Broadway musical, 21 Chump Street: The Musical.
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”
The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.
Several Victorian police stations have been ordered to stop accepting complaints about certain crimes over the phone, leading to claims they are manipulating crime statistics. Superintendent Neil Paterson said in an email: “Given our extremely high offending rate around Theft from Motor Vehicle at present … I am of the view that reports for TFMV must be taken in person rather than received via telephone.” A VicPol spokeswoman said the policy would ensure that forensic evidence was gathered from the cars, but other police disagree. A senior officer told the Herald Sun: “This instruction is a blatant and obvious attempt to artificially drive down crime reporting by making it much more difficult to report crime.”
The Supreme Court last night forced the Herald Sun to stop its presses, to prevent the possible identification of a criminal defence lawyer who was also a secret police informer. Articles published earlier this week have been removed from the paper’s website. The right to confidential discussions with a lawyer is fundamental to the criminal justice system; Justice Gummow described it as “a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights.” The Legal Services Commissioner says a lawyer who leaks against their clients could be charged with professional misconduct. Prominent lawyer Rob Stary has called for a royal commission to investigate the issue and restore public confidence in the system.
Stephen Charles QC has called for a tougher anti-corruption body in Victoria, complaining that “the legislative definition of ‘corrupt conduct’ is extremely narrow, it does not include misconduct in public office, and the [Independent Broad-based Anti-corruption Commission] needs far greater power to initiate investigation”. He said the government failed to deliver on its election promise to model IBAC on the NSW equivalent, which has uncovered serious corruption. However, others complain that the NSW body is like the notorious Star Chamber; Peter van Onselen says it “can compel people to give evidence, use second-hand hearsay, bug phones at will, ask questions without context, make claims without consequence and deny those interviewed legal representation. It … has greater inquisitorial and discovery powers than any police force… ICAC hearings are akin to legal bullying.” He is concerned that ICAC is “above the very rule of law it is designed to uphold.”
A handlebar-cam video has highlighted the danger facing cyclists using bike lanes in the CBD. The video shows a passenger hitting the cyclist with the door of a taxi, refusing to identify himself, and blaming the cyclist for the incident. Rule 269(3) of the Road Safety Rules 2009 (Vic) makes it an offence to “cause a hazard to any vehicle by opening a door of a vehicle”. The penalty was significantly increased in 2012, because “dooring” is a serious risk to cyclists’ safety, particularly in the CBD.
“If a woman is assaulted or killed and police don’t do all they can to protect her from attack, should the police be held liable in negligence?” In Australia, the law is unclear. The NT police reached a confidential out-of-court settlement with Tiffany Paterson, whose complaints were ignored by police before she was beaten and slashed in the face by her former partner. In WA, the family of Andrea Pickett are suing the police for their failure to prevent her being brutally murdered in front of her daughter. Australian lawyers are attempting to develop this area of the common law because in the UK, the High Court awarded damages to two victims of a serial rapist. It held that “a series of systemic failings” breached “a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner”. However, the UK claim was brought under the Human Rights Act 1998 (UK), and no equivalent legislation exists in Australia.
The Palmer United Party has been accused of breaching Tasmanian electoral laws by publishing the names and photos of political opponents without their consent. Clive Palmer said the law “was only directed at people who published, printed or distributed, and of course our party has not printed, published, or distributed anything—it’s all been done by the Hobart Mercury“. Palmer may have a point: while some rules extend to people who “permit or authorise another person to publish” material, section 196 is narrower. However, a letter sent directly to voters by Palmer also apparently breaches the law. He declared: “I intend to write another one tonight you know, because nobody is going to stop me as a Member of the House of Representative having a dialogue with the Australian people.” He suggested the High Court’s decisions on freedom of political communication would protect him: “There’s no legal problem. Any first-year lawyer can tell you that. You’ve only got to read the high court judgments on it and you’ve only got to read the Act.”