: DUAO - Vol 40(2)

DUAO - 2015 - Vol 40(2)

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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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Mandatory data retention laws passed

Leanne O’Donnell

The controversial Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 passed both houses of Parliament on 26 March 2015, the last sitting day before the budget.

This Act introduces a mandatory data retention scheme for certain carriers and carriage service providers such as Telstra, Optus, Vodafone and over 400-odd Australian internet service providers. The laws do not commence operation immediately but, as at 13 April 2015, a service provider must not reduce the period for which it keeps any data it will be required to be keep under the new laws.

The laws will impact on all Australians, unless you don’t use a telephone or the internet. Currently, the type of telecommunications data (or ‘metadata’) kept varied between service providers as did the length of time each type of data was retained. The data retention laws include an express requirement on service providers to ‘create’ data that falls within the data set to be retained even if they do not currently collect or capture that data.

(2015) 40(2) AltLJ 138


Australia’s secretive return of Vietnamese asylum seekers

Daniel Webb

The Australian government has secretly returned 46 asylum seekers to Vietnam without any transparency or due process.

Media reports suggest that the group of Vietnamese asylum seekers were intercepted in early April 2015 by Australian customs and navy vessels north of Australia and were then held on the Australian Navy ship HMAS Choules somewhere off the coast of Vietnam.

Australia has clear obligations under the Refugee Convention and other human rights treaties to not return people to harm.

Over the last five years, successive Australian governments have assessed around 90 per cent of boat arrivals as being refugees genuinely fleeing persecution. Yet since commencing its ‘Operation Sovereign Borders’ policy in September 2013, the government has intercepted16 boats carrying a total of 475 asylum seekers. Apart from one individual, all of those 475 have been returned.

The numbers make clear that the screening process being used at sea is fundamentally flawed and that refugees are being wrongfully returned to harm.


(2015) 40(2) AltLJ 138


Sentencing in the ACT

Lorana Bartels and Anthony Hopkins

On 24 March 2015, the ACT Legislative Assembly Standing Committee on Justice and Community Safety released a 400-page report on its inquiry into sentencing in the ACT. The Inquiry’s terms of reference included consideration of:

  1. sentencing practice in the ACT, its effects and implications;

  2. the ways in which contemporary sentencing practice in the ACT affects other parts of the justice system, including the courts, policing and correctional agencies, the legal profession, victims of crime, offenders and community support organisations;

  3. the practice and effectiveness of current arrangements in the ACT for parole, periodic detention, bail, restorative justice andcircle sentencing; and

  4. alternative approaches to sentencing practice in the ACT.

(2015) 40(2) AltLJ 139


Courts becoming less lenient in NSW

Elyse Methven
New South Wales

In March this year, the NSW Bureau of Crime Statistics and Research (‘BOCSAR’) published a report on whether NSW criminal courts have become more lenient. The report concluded, contrary to popular opinion, that the opposite is true. Over a 20-year period, from 1994 to 2013, NSW local and higher criminal courts had: become more restrictive in the granting of bail; increased their use of imprisonment for convicted offenders; and lengthened average prison sentences across many offence types.

(2015) 40(2) AltLJ 139


Paperless arrest powers: High Court challenge

Sue Erickson
Northern Territory

On 17 December 2014 the Northern Territory Government commenced the Police Administration Amendment Act 2014, which gives police officers powers to take a person into custody if the police officer believes the person had committed, was committing or was about to commit, specified offences, which include offences such as obscenity, making noise after midnight, disorderly conduct or low-level drug possession. These types of offences are generally dealt with by way of an infringement notice.

The person may be held in custody for up to 4 hours, and longer if the person is intoxicated. While the person is in custody, the police officer may search the person, remove items from the person (which are then required to be returned at the end of the period of time held in custody if possession of the items are not unlawful). A police officer may use reasonable force in exercising these powers. The police officer is not necessarily required to charge the person after releasing the person in custody. The Attorney-General referred to this procedure as a ‘paperless arrest’.

(2015) 40(2) AltLJ 140


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