: DUAO - Vol 40(1)

DUAO - 2015 - Vol 40(1)

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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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Red tape removal state

Allan Ardill

On 6 January 2015, acting Governor and Queensland Chief Justice Carmody dissolved the 54th Legislative Assembly of Queensland. The early election was called by Premier Newman to avoid uncertainty and speculation over a potentially long

de facto election period claiming, ‘the state needs certainty, not months of endless politicking’. His government prided itself on what it calls ‘red tape reduction’ and to implement that agenda it passed 163 Bills, with another nine lapsing automatically due to the dissolution. Depending on the results of the 31 January poll these lapsed Bills may be reintroduced.

Interestingly of the nine lapsed Bills all but one — Exhibited Animals Bill 2014 — belonged to the three most senior members of the government, Deputy Premier Seeney, Treasurer Nicholls, and Attorney-General Bleijie. Begging the question of why the election was called early with significant Bills yet to be passed?

(2015) 40(1) AltLJ 63


Criminal jurisdiction over US personnel

Stephen Gray
Northern Territory

In October 2014, US sailor Hugh Patrick Malone was tried and acquitted in the Northern Territory Supreme Court of raping a Darwin woman in a 2012 incident in Darwin’s Melaleuca Lodge. The case represented an end (for now, at least) to eighteen months of controversy and uncertainty surrounding the question of whether this incident — and others like it — would be tried in a US military tribunal, rather than an Australian court.

Malone was in the Top End as part of the ‘force posture initiative’ — read, US military build-up — first announced in late 2011, and expected to expand to 2500 US personnel by 2016–7. Criminal jurisdiction over US personnel is governed by a Status of Forces Agreement, first reached in 1963. Under this agreement, the US may request that Australian authorities waive jurisdiction in a case of ‘particular importance’. This is not a dead letter. In 2001, the US sought, and exercised, jurisdiction over a US staff sergeant who raped a Tasmanian woman. The US did in fact request that it exercise jurisdiction over Malone. Fortunately, this request was denied by the federal Attorney-General.

Will the US pressure Australia to relinquish jurisdiction in future cases? Is it proper for US authorities to contact the victim in an effort to convince her of the merits (or travel benefits) of proceeding in a US court? Who would try a US Marine who committed a DUI offence, or a murder committed under the influence of post-traumatic stress? It seems likely these questions will arise again, given the seemingly permanent nature of the increased US presence in the Top End.

(2015) 40(1) AltLJ 63


Unintended casualties of NSW government’s ‘alcohol-fuelled violence’ laws

Elyse Methven
New South Wales

In September 2014, the NSW Ombudsman published its reported on s 9 of the Summary Offences Act 1988 (NSW) (‘the report’). Section 9 commenced in mid-2011, and provides that it is an offence for a person who has been given a move on direction for being intoxicated and disorderly in a public place to:

at any time within six hours after the move on direction is given, [be] intoxicated and disorderly in the same or another public place.

In March 2014, the government not only increased the penalty notice amount to $1100 for a s 9 offence (the previous fine was $200), but also increased the maximum penalty that a Court can impose for a s 9 offence from $660 to $1650 (Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) sch 5).

(2015) 40(1) AltLJ 63


Succession law

Rebecca Tetlow and Glenda Bloomfield

Last year, 2014, saw some interesting amendments to succession law in the ACT. The Elder Law and Succession Law Committee of the ACT Law Society has an active approach to reform in this area and together with the ACT Department of Justice and Community Safety the following reforms have been made.

The first reform was an amendment to the Family Provision Act 1969 (ACT). Section 9 of that Act now specifies that any application for provision under the Act must be made within six months of the date of the Grant of Representation. Previously the time for making an application had been 12 months from the date of the grant. While the prescribed time for making an application varies between the jurisdictions, the previous 12-month period from the date of grant was the longest period allowed in which to make a Family Provision application in Australia. The rationale for the amendment is to avoid undue delays in administering and distributing estates in circumstances where FP claims have been threatened but not commenced. Under the old provision a prudent executor would hold off distributing the estate until the time for making an application had expired, if there was a risk of a FP claim being made.

(2015) 40(1) AltLJ 62


Productivity Commission inquiry

Liz Curran

Two significant reports on access to justice have recently been released. The Productivity Commission Inquiry into ‘Access to Justice Arrangements’ was handed to the Australia Government in September 2014 and released publically on 3 December 2014 — http://www.pc.gov.au/inquiries/completed/access-justice/report. The two Volumes of the report have 968 pages and there is also a 78 page Overview Report. This update will select some key themes and recommendations.

(2015) 40(1) AltLJ 61


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