DUAO - 2012 - Vol 37(4)

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Developments around the country

DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.

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Prohibited Behaviour Orders, two years on

Roxanne Moore
Western Australia

The Prohibited Behaviour Orders Act 2010 (WA) was introduced as a means of constraining offenders with a history of anti-social behaviour. After sentencing an offender aged 16 years and over, a court may issue a Prohibited Behaviour Order (‘PBO’) where the court is satisfied that an offender, within three years of being convicted of an offence involving anti-social behaviour, has been convicted of another offence involving anti-social behaviour, and the offender is likely to commit more unless otherwise constrained (ss 6, 8). The court may impose a PBO on certain activities and behaviours of an offender that are ‘reasonably necessary’ to reduce the likelihood of the person re-offending, for up to two years (ss 10(2), 12). A breach of a PBO is an offence carrying a penalty of a fine and/or imprisonment (s 35), and in this way the legislation criminalises otherwise lawful behaviour.

(2012) 37(4) AltLJ 292

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Military cooperation with Indonesia must be subject to stringent safeguards

Phil Lynch
Human Rights

On 5 September 2012, the Australian government signed a Defence Cooperation Agreement with Indonesia. The agreement raises potentially significant human rights issues.

In a press release on the agreement, Indonesia disclosed that the agreement affirms principles of territorial sovereignty and non-interference in each other’s ‘internal affairs’. Disturbingly, there has been no reference by either side to the agreement affirming any commitment to human rights or containing any human rights safeguards. Australia’s Defence Minister, Stephen Smith, is reported as saying he has ‘no concerns’ regarding the human rights implications of military cooperation with Indonesia.

(2012) 37(4) AltLJ 282

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Protect and promote the rights of people 
living in poverty

Kate Donald
Human Rights

The United Nations Special Rapporteur on extreme poverty, Magdalena Sepúlveda, has urged States to embrace and use the Guiding Principles on extreme poverty and human rights, adopted by the UN Human Rights Council by consensus on 
27 September 2012.

‘The adoption of these Principles represents an explicit recognition by States that the desperate situation of people living in extreme poverty is an urgent human rights concern,’ said Ms Sepúlveda, who drafted the guidelines on the basis of a decade of international consultations.

(2012) 37(4) AltLJ 282

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Social media and the law

James Farrell
Federal

New national laws are being considered to address the risk that social media will jeopardise criminal trials.

Social media was flooded with messages following the disappearance of Melbourne woman Jill Meagher, which turned to vitriolic abuse when a 41-year-old man was charged with her murder.

Ms Meagher’s husband spoke about this outside the court following the accused’s bail application , saying ‘And while I really appreciate all the support I just would like to mention that negative comments on social media may hurt legal proceedings, so please be mindful of that.’

(2012) 37(4) AltLJ 282

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Bank fees may be illegal penalties

Katy Barnett
Federal

On 6 September 2012 the High Court of Australia unanimously decided that bank fees may potentially be penalties, notwithstanding the fact that the trigger for the imposition of most of the fees was not a breach of contract.

Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 involved a class action where customers of the ANZ Bank claimed that a variety of the ‘service fees’ charged by the bank in relation to transactions made on customers’ accounts were in fact illegal penalties.

(2012) 37(4) AltLJ 283

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