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Cite as: (2003) 77(3) LIJ, p.8

We welcome letters to the editor of no more than 400 words.
Email: letters@liv.asn.au. Fax: 9607 9451.
Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.
We reserve the right to edit letters and to republish them in their original or edited form on the Internet or in other media. Letters must include a phone number and address for authentication.

Register of paedophiles and repeat sex offenders

Cite as: (2003) 77(3) LIJ, p.8

In November 2002, the Australasian Police Ministers Council resolved to introduce a National Index of Child Sex Offenders. More recently, the Victorian Minister for Police, Andre Haermeyer, announced his intention to call on the Council to create an International Register of Paedophiles. The intention of the index and register is to keep track of the whereabouts and movement of paedophiles and other repeat sex offenders. From this it can be presumed that a person meets the criteria once they are convicted of a relevant offence, although this is not entirely clear. It would also seem that the index and register are not necessarily limited to people convicted of sexual assaults on children, but may include people guilty of other sex crimes.

The presumption behind the registration is essentially, once an offender always an offender. Whether the presumption is applicable to any or all paedophiles and other repeat sex offenders is debatable, but there are concerning examples that suggest some sex offenders are extremely predatory in their behaviour.

The Council for Civil Liberties considers that the community should be slow to characterise a person as irredeemable. The Council is also concerned that the process of keeping people under a scheme of continual observation may place them in danger, hinder rehabilitation that might otherwise be achieved and cause some to move underground. In short, the process of requiring registration of offenders will tend to isolate them, further weakening their prospects of rehabilitation. The purpose and focus of the current parole system is the reintegration of offenders into the community for the benefit of the community. A register will not guarantee pre-emptive intervention so as to stop a person from re-offending as this is only possible with 24-hour surveillance. The law already provides for indefinite prison sentences. The creation of a register leads to a false sense of security and is a classic case of “being seen to do something” and may be in conflict with the objectives of the parole system.

It is the Council’s view that the requirement for a person to be placed on the register should be a judicial determination based on clear legislative criteria. Generally, the appropriate authority would make application, with suitable notice, at a sentencing hearing for an offender to be registered. The ongoing need for an offender to maintain their registration should also be subject to judicial review at the instance of the offender. Access to the details contained on the register needs to be tightly controlled and clear legislative guidelines created to limit the use of the information. Appropriate penalties should be enforced against those who abuse the register.

Lifelong monitoring of individuals is an intolerable intrusion on fundamental rights and freedoms. The Council strongly opposes any system of registration that does not have proper legislative and judicial oversight.

Greg Connellan
President, Liberty Victoria

For providing the letter of the month, Greg Connellan has won a $50 book voucher from the Law Institute bookshop, redeemable for the next 12 months.

Upholding the Rule of Law

Cite as: (2003) 77(3) LIJ, p.8

There has been a lot of misinformation in the press about the effect of the recent judgments of the High Court of Australia (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/ 2002 [2003] HCA 1 (4 February 2003) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003)) concerning the limitations on judicial review in respect of refugee and immigration decision-making introduced by the Australian government in the aftermath of the “Tampa affair”.

In fact, the High Court decided that, while constitutionally valid, the “privative clause” in s474 of the Migration Act 1958 purporting to limit judicial review to the point of non-existence, did not, properly interpreted, have that effect. Rather, the High Court held that decisions affected by “jurisdictional error” (including a breach of the rules of natural justice) were not decisions made “under the Act” and were thus not protected by the clause. The same analysis applies to the time limits and certain other procedural restrictions in the High Court, the Federal and Federal Magistrates Courts, so that those sections are valid but have no consequence if the decision sought to be reviewed contains jurisdictional error, which, of course, is a matter for the courts to determine following full argument. Further, in response to other legislative methods suggested by the Solicitor-General as ways in which the government might achieve the same result – the effective removal of all judicial review – the High Court held that any such attempts in the future would be likely to be constitutionally invalid because s75(v) of the Australian Constitution guarantees the right of all persons (including non-citizens) to challenge, at least in the High Court, excesses of jurisdiction by commonwealth government officials, including those making refugee and immigration decisions.

In doing so, the High Court has emphasised its central role in upholding the Rule of Law in Australia and these decisions are some of the most important decisions in Australia of recent times. Thus, far from being a “blow to refugee advocates” as has been reported, the decision is a vital step towards ensuring fair and lawful decision-making in respect of applications for protection visas in Australia, as well as all other categories of visas, through the Court’s supervision.

Karyn Anderson
Erskine Rodan & Associates

Draconian approach

Cite as: (2003) 77(3) LIJ, p.8

The Australian Senate is threatening to arrogate to itself the ability to fine, jail and otherwise penalise journalists and media organisations for doing their job.

In its 112th report titled Possible Unauthorised Disclosure of Report of Environment, Communications, Information Technology and the Arts Legislation Committee, the Senate Privileges Committee has foreshadowed that it intends to examine whether publishing a report based on a leaked document should constitute contempt – even if the leaking does not interfere with the operations of the Parliament.

Parliamentary privilege exists for the purpose of enabling the Houses of Parliament to carry out their functions effectively. It includes the powers of the Houses to protect the integrity of their processes, particularly the power to punish contempt.

However, it is increasingly being used to threaten journalists and the media for carrying out their job.

Over the past decade, the Senate Privileges Committee has been taking an increasingly draconian approach to journalists – even though in almost every incidence the leak complained of has come from a member of the Senate.

In its 1998 report titled Possible Unauthorised Disclosure of Parliamentary Committee Proceedings, the Senate Privileges Committee warned that “while it has in the past been reluctant to punish the media without satisfying itself as to the source of the information, it may not be so restrained in future”.

In its latest report into a “possible unauthorised disclosure” of a Senate inquiry into the Media Ownership Bill, the Privileges Committee goes further, saying that it intends to determine whether receiving leaked information would automatically place a journalist in contempt and subject to the almost unlimited powers that the Senate has to punish contempt.

About 12 months ago, the federal government proposed to make it an offence to receive leaked official documents, punishable with up to two years jail.

The proposal was dropped when it was a clear that a Senate majority opposed it.

It is sad to see that a year later, the Senate is threatening to revive the offence in relation to its own proceedings that it rightly found so odious when pursued by the Executive.

Christopher Warren
Federal Secretary, Media, Entertainment & Arts Alliance

Call for an equitable maternity allowance system

Cite as: (2003) 77(3) LIJ, p.9

I refer to Michaela Ryan’s article “Babies, anyone?” in February 2003 edition of the LIJ (page 87).

She hopes that the government will introduce paid maternity leave “so that women are not forced back into the workforce before they have properly recovered from childbirth”. I think this aim is a humane one.

However, I do not support the paid maternity leave scheme proposed by the Human Rights and Equal Opportunity Commission. It requires the government (i.e. all taxpayers) to fund a paid maternity scheme which is discriminatory.

The proposed scheme discriminates against mothers who are not in the paid workforce, either through choice (because they choose to stay at home and care for their children) or by compulsion (because there are no jobs available). Why should these mothers and their children be discriminated against? One would think these mothers would also need time to recover from childbirth.

I believe a more equitable system would be a maternity allowance paid to all mothers to cover the 14-week period after having a child.

Suryan Chandrasegaran
Solicitor

Response to determination of building contracts letter

Cite as: (2003) 77(3) LIJ, p.9

I am writing in response to the letter by Ross Delahunty published in the February 2003 LIJ (page 8) entitled “Determination of building contracts”.

I believe some of the statements made in that letter are misleading and wrong. The Housing Industry Association (HIA) believes that the building contract produced is a balanced document and has been written in the background of compliance with the Domestic Building Contracts Act.

It is beyond dispute that this Act is a consumer protection oriented piece of legislation and is one of the most prescriptive Acts proclaimed. The domestic building industry is one of the most regulated areas, where all work is guaranteed by a statutory warranty in most cases for a period of 10 years supported by an insurance policy for six years.

The HIA contract allows both parties to rescind the contract for breach. It is quite common for owners to serve a notice of termination merely as a tactic to avoid or stall payments due under a contract.

The builder is obligated to deal with such notices seriously even though in most cases they would prefer to walk away from “the client from hell”.

Failure to do so may have severe insurance implications which could affect future registration of projects. The viability of the builder’s business may be unfairly prejudiced no matter how vexatious or frivolous the grounds for the notice of determination may be.

The number of members who have to provide many thousands of dollars in bank guarantees to comply with the prudential requirements of insurers despite having an impeccable claims history would find the comments of the industry requiring a cultural change quite laughable.

Rino Zuliani
Manager Legal Services/IR Victoria
Housing Industry Association

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