The Minister for Home Affairs, the Hon Brendan O’Connor, has foreshadowed release of a discussion paper regarding establishment of a statutory tort of breach of privacy. The tort has been proposed in successive Australian and state law reform and parliamentary committee reports, in particular the Australian Law Reform Commission’s 2008 For Your Information: Australian Privacy Law and Practice report, the Victorian Law Reform Commission’s 2010 Surveillance in Public Places final report and the NSW Law Reform Commission’s 2009 Invasion of Privacy report. The proposal for establishment of a statutory cause of action appears to be reactive, reflecting publicity in the UK and US over privacy breaches by major media organisations. It is independent of current parliamentary consideration of major amendments to the Privacy Act 1988 (Cth); those amendments do not feature a tort.
News & Views
In January 2010 Ronald Williams, a Queensland father, instigated proceedings in the High Court challenging the National School Chaplaincy Program (‘NSCP’) [Williams v Commonwealth of Australia and Ors]. The NSCP was started in 2007 under the Howard government to ‘support schools to establish or expand chaplaincy services.’
Mr Williams is challenging the NSCP on two constitutional grounds: first that the granting of funds for chaplaincy is outside the executive’s power, and second that the qualifications for the position of chaplains imposes a religious test for office contra to section 116 of the Constitution.
The ACT government is currently preparing a response to the question of including economic, social and cultural rights in the list of recognised human rights in the ACT Human Rights Act 2004 (ACT). The Attorney-General tabled the ACT Economic, Social and Cultural Rights (‘ESCR’) Project Report in the Legislative Assembly on 9 December 2010. The report’s primary recommendation was that particular economic, social and cultural rights, including the rights to health care, housing, education, work and cultural life, should be included in human rights legislation in the ACT. The ACT would be the first state or territory in Australia to legislate explicitly for such rights.
In April the ACT Greens tabled the Exposure Draft of the Residential Tenancies Act (Minimum Standards) Amendment Bill 2011 (http://www.legislation.act.gov.au/ed/db_41272/default.asp). The Bill sets specific minimum standards for security, energy and water efficiency, as well as providing the platform for the regulation of additional areas.
At security checkpoint 2 of the Alexander Maconochie Centre (‘AMC’, the ACT gaol), I was asked by a prison officer if I support the implementation of a needle syringe program (‘NSP’) into the AMC, and if the answer was no, could I please add my signature to the officers’ petition.
The Public Health Association of Australia (‘PHAA’) was commissioned by the ACT government to engage in, investigate and report on models for the implementation of an NSP at the AMC. Its report, Balancing Access and Safety: Meeting the challenge of blood borne viruses in prison, was released on 19 July. In the report the PHAA recommends legislative changes to assist the implementation of a needle and syringe program in the AMC; establishing clear rules and procedures; designing an implementation plan to ensure optimal health and safety outcomes for prison staff, the broader community, and prisoners; and providing supportive measures such as an Aboriginal Health Worker for the NSP, secure syringe disposal bins, and monitoring developments in retractable syringe technology.
In 2010 the Labor government in NSW released an exposure draft of the Bail Bill 2010 and the Review of the Bail Act 1978. This Bill included some significant changes to the current law, such as the removal of the s 32 criteria to be considered in bail applications. In its place a restrictive objects clause was drafted, which did not make any mention of the interests of an accused. In relation to this there were several submissions on the exposure draft expressing concern or criticism over these proposed changes.
On 23 June, the Crimes Amendment (Murder of Police Officers) Act 2011 (NSW) commenced, inserting a new s 19B into the Crimes Act 1900. Section 19B(1) of that Act now provides that a court must impose a sentence of life imprisonment without the possibility of parole for the murder of a police officer if the murder was committed:
(a) while the police officer was executing his or her duty, or
(b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty,
and if the person convicted of the murder:
(c) knew or ought reasonably to have known that the person killed was a police officer, and
(d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers.
In the matter of Wainohu v New South Wales  HCA 24 (23 June 2011), the High Court of Australia held the Crimes (Criminal Organisations Control) Act 2009 (NSW) (‘the Act’) invalid by a majority of 6–1.
On 6 July 2010, the Acting Commissioner of Police for NSW applied to a judge of the Supreme Court of NSW for a declaration under Part 2 of the Act in respect of the Hells Angels Motorcycle Club of NSW. The plaintiff, Derek James Wainohu, is a member of that club. If the Club was declared a criminal organisation, the plaintiff risked being made subject to a control order under Part 3 of the Act.
In July 2011, the NSW Auditor-General, Peter Achterstraat, released a performance audit into speed cameras. The report, Improving Road Safety: Speed Cameras, inquired into the Roads and Traffic Authority’s (‘RTA’) installation and use of cameras, and was a response to public concerns that the cameras were ‘revenue-raising’, rather than effective safety measures.
Pre-court diversion for young offenders is provided for in the legislation of all jurisdictions and comprises part of a restorative justice framework. Restorative justice focuses on the needs of the victim, the offender and the community and encourages the offender to take responsibility for his or her actions and make reparations. Young offenders are treated differently to adult offenders, given their age and maturity, but the criminal justice system recognises that they need to take responsibility for the offending behaviour and be held accountable for their actions. Pre-court diversion in all jurisdictions generally consists of informal warnings, formal warnings and referral to conferences at the first instance contact with the criminal justice system is made, with court attendance being the last option. Generally, the young offender must have admitted to the offending behaviour and consent to the diversionary practice. The offences eligible for diversion tend to be summary offences or minor offences, and are more comprehensively defined in the relevant legislation for each jurisdiction.