02.21.10
Posted in Law in a Changing Society, Technology at 6:02 pm by admin
The challenges which arise when the law tries to keep up with rapid technological developments are explored in Topic VII – Technology and the Law in Legal Studies for Queensland Vol 2. One recurring issue arising from the global nature of the internet is which courts have jurisdiction over material on the internet, that is, which courts have the right and authority to hear a case and have the law of their nation apply to it.
Several significant cases on this issue were canvassed in Legal Studies for Queensland Vol 2, including the case of Yahoo! Inc v LICRA and the Australian case of Gutnick.
A new case from England on this topic is R v Sheppard & Whittle [2010] EWCA Crim 65 Crim.
Two Englishmen wrote a pamphlet called Tales of the Holohoax which contained derogatory remarks about Jewish people and black people and set up a website which contained it and other racially inflammatory material in that was it threatening, abusive or insulting towards various racial groups. The server for the website was in California, USA. The material was available to any internet user in the world.
The two men were convicted by a jury (majority verdict 10:1) on multiple counts of possessing, publishing and distributing racially inflammatory material per the Public Order Act 1986 and sentenced to imprisonment. They appealed on the ground that the courts in England did not have jurisdiction to try the case as the material on that internet site was California, USA – the place where the web server upon which it is hosted is located. None of the material on that internet website was illegal in the United States of America. It did not constitute a criminal offence in the United States of America because it was not only not a criminal act but was specifically protected by the ‘freedom of speech’ protections guaranteed to all Americas through the First Amendment to the American Constitution
The court upheld the conviction and dismissed their appeal. The court explored what was required for a nation’s courts to have jurisdiction over internet publications. The court held that the test for jurisdiction was not based on the place of publication [“country of origin” test], nor the jurisdictions where it can be downloaded [“destination’ test] but the “substantial measure” test needed to be applied. On the facts of the case the court found that a substantial measure of the activities constituting the crime took place in England as the material was written, edited and uploaded from England, and parts of it were targeted specifically at a readership in the UK.
See: R v Sheppard & Whittle [2010] EWCA Crim 65
http://www.bailii.org/ew/cases/EWCA/Crim/2010/65.html
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Posted in Law in a Changing Society, The Legal System at 5:59 pm by admin
Mr. Wayne Swile has worked in the court system for 27 years, with the last seven years in the Drug Court as the South-East Queensland Coordinator. In October 2009, Mr. Swile gave a visiting Year 12 Legal Studies class the following information and insights into the purposes and processes of this new sentencing court for their final unit, ‘Law in a Changing Society’.
The Drug Court is an alternate sentencing option to the Magistrates Court. It deals with criminals, many of whom were drug-addicted. Given the sheer volume of offenders facing sentencing in the Magistrates Court, it could not adequately deal with the rehabilitation of offenders. The Drug Court is an example of ‘therapeutic jurisprudence’, which means that drug-addicted criminal offenders are treated as patients deserving of support and empathy in order to help them break free from the drug-crime-prison cycle while at the same time recognising in the sentencing process the need for justice in relation to the crimes committed.
In Queensland, the Drug Court has been a permanent sentencing option since 2006, with its pilot year being 2000. There are five Drug Courts operating in Queensland, one in NSW, one in Victoria, and in Western Australia there are a pilot Aboriginal Drug Court and a Juvenile Drug Court in operation.
Each Queensland Drug Court consists of the following partner agencies:
• Queensland Police (prosecutor)
• Legal Aid (defence counsel/lawyer)
• Corrective Services officer
• Queensland Health officer
Prior to each Drug Court sitting, there is a meeting of the Drug Court Magistrate, along with a representative from each of the partner agencies. All matters to be heard before the Drug Court are discussed at the team meeting and the progress of each participant is discussed.
There are three phases in the Drug Court program specifically designed to rehabilitate the offender:
• Phase 1: ‘Illicit Drug-Free’ (12-24 weeks: 3 to 6 months).
• Phase 2: Stabilisation (12 to 24 weeks: 3 to 6 months).
• Phase 3: Reintegration (12 to 24 weeks: 3 to 6 months).
Queensland’s Drug Courts have a 29% success rate, which is based on IDRO (Intensive Drug Rehabilitation Order) programs being successfully completed, culminating in the graduation of participants from the Drug Court program. 14 months is the average period for successful completion of the program. In order to successfully complete the program, participants must be:
• drug-free;
• crime-free; and
• ready to engage as productive members of society.
The Drug Court sentences offenders who have been charged with crimes for which they will receive a custodial sentence, including charges of break and enter, stealing, fraud and driving/traffic offences. Offences involving violence against another or of a sexual nature disqualify offenders from the Drug Court. In order to be eligible to be a participant in the Drug Court program, an offender must plead guilty and must face a maximum term of imprisonment of three years (although it can increase to four years with police consent). Most offenders have committed more than 10 offences when they come before the Drug Court. Some have committed between 200 and 400 offences. Offenders must be at least 17 years old, although there are not many 17 and 18 year old offenders who appear before the Drug Court due to convicted persons having to be liable for prison terms, which is unlikely in most cases of young offenders. To be eligible for the Drug Court program, an offender must also live within prescribed postcodes as provided for under the Drug Court Regulations 2006, which are generally within 25 kilometres of the relevant Drug Court. This allows for partner agencies to be able to provide services for the rehabilitation of offenders as well as for the offenders to be able to return to court for review by the Drug Court Magistrate. The phase the offender is in determines the number of times he or she must return to the Drug Court for review; Phase 1 – weekly, Phase 2I – fortnightly, and Phase 3 – monthly.
Every person who is accepted onto the Drug Court program receives a sentence of imprisonment which, in most instances, is a period greater than six months. Defendants are referred to the Drug Court for their suitability to undertake the program. Following the referral, the defendant’s charges are adjourned for a six week period before initial Drug Court sentencing. This allows for Queensland Health to assess whether or not the offender is still drug-dependant, as well as assessing the need for the offender to have residential rehabilitation. On the Gold Coast, there are three places with residential rehabilitation accommodation: Fairhaven (soon moving to Mt. Tamborine), Mirikai and Goldbridge. It also takes 30 days for a pre-sentencing report to be compiled by Corrective Services.
At the initial Drug Court Sentencing Hearing, the prosecutor and the defence lawyer (Legal Aid) make submissions. The Magistrate hands down the initial prison sentence (maximum of three to four years) which is suspended whilst the offender undertakes an Intensive Drug Rehabilitation Order (IDRO). This order has many specific conditions attached to it, such as random urine testing for drugs (starting at up to five times per fortnight), attending court hearings (weekly at first), writing and handing up a journal to the Magistrate, and residential rehabilitation accommodation. Many of the participants have already been in some form of pre-sentencing custody. All of the participants write in a weekly journal.
As the ‘participants’ work their way through the three phases of the Drug Court program, they can receive sanctions (such as custody/prison periods, ‘no contact’ with certain people and removal of weekend leave) from the Magistrate for non compliance with their program. If their breaches of the order are serious, they can have their Drug Court program terminated by the Magistrate and be required to appear for final sentencing (which in most instances include a prison term). The Magistrate also makes orders for rewards such as weekend leave, reduced community service and contact with certain people (e.g. a partner or children) where participants satisfactorily comply with their program. One concern is that participants are rewarded for merely doing what they’re supposed to do under their order (i.e. complete the program by getting off drugs and learning to become law-abiding and productive members of society). Once the Drug Court program is successfully completed, the Drug Court Magistrate hands down a final sentence, usually in the form of a suspended sentence (based on the initial prison term) or a probation order.
A maximum of 221 people throughout Queensland are on the Drug Court’s IDROs at any time. There is a 141 person cap in South-East Queensland. Recidivism (repeat offending) is not being stopped in the general criminal justice system. There is a general lack of deterrence from a young age for many offenders. Although there have not been recent comparisons of the costs between imprisonment and Drug Court, past findings have indicated that there is little difference, however Drug Court offers a program which specifically targets the rehabilitation of offenders.
In response to a question about statistics in relation to the effectiveness of the Drug Court program, Wayne Swile referred to reports that have been compiled and published by the Australian Institute of Criminology (2008 – focusing on the first 100 graduates from the Queensland Drug Court) and the Queensland Department of Justice & Attorney-General.
Observation of a Drug Court sitting at Southport (October 2009):
Before Magistrate Tynan (a female Magistrate – most of the Drug Court Magistrates currently sitting are females), the Drug Court opened with appearances given by the prosecutor, Corrective Services officer, a Queensland Health officer and a Legal Aid lawyer. As each participant’s name is called by the Drug Court officer, he or she walks up to the Magistrate’s Bench and hands up documents including a weekly journal that is required to be kept and shown on each court visit. The Magistrate speaks directly to each participant, who sits in a chair to the left side of the bar table instead of behind it. At the end of each hearing, the other participants and the court personnel applaud if there has been some progress made in the program.
1. Participant “P” (male)
• He admitted to using Speed but assured the magistrate that he was clean today.
• He is still having anxiety attacks and hearing voices.
• An outpatient for three days per week at Mirikai (residential drug rehabilitation facility at Burleigh).
• The Magistrate gave the following advice to all the Drug Court participants who were present in the courtroom to help them make a fresh start free from drug users and dealers: “Get rid of all phone numbers from your mobile phone by getting a new SIM card and starting with a new set of numbers.”
• The Magistrate gave the participant a sanction of 14 days in custody (prison) for testing positive to using Speed and told him that he will be subjected to a Queensland Health reassessment as to whether or not he is clean from drugs so that he can return to program
2. This male participant received a ‘head’ sentence of two years and three months. He has been in custody (jail) for eight days so far and his application to the Drug Court to be accepted onto an Intensive Drug Rehabilitation Order (IDRO) program was adjourned by the magistrate until next week.
3. Participant “L” (female)
• She last did community service on Friday the 9th of October 2009 (3 days ago).
• She has today made a $5 restitution payment, for which she has a receipt from the filing registry of the Southport Law Courts.
• She still has 17¼ hours of community service to do which she’ll do quickly so she can move onto the next phase.
• Everyone clapped her for making progress as she left her seat and returned to the public gallery at the back of the courtroom.
4. Participant “H” (female)
• Working five days per fortnight.
• She now has new accommodation (no longer in residential rehab.).
• Hoping to graduate in about eight weeks.
• It will be two years on 25 October since she started the Drug Court program.
• The Magistrate reminded her that she was not to take any drugs or medication other than those permitted in writing. She is still under Queensland Health case management.
• She is under the case management at Burleigh.
• Still has eight hours of community service to do.
• Restitution still to be paid.
• She needs to bring her journal to the court next Monday.
• She is attending NA (Narcotics Anonymous) meetings.
• The Magistrate said, “It’s all in your hands now. You have a lot more responsibility.”
5. This male person was brought into the dock through the side door of the courtroom by a Corrective Services officer. He has been missing from the IDRO program for six months. The Magistrate gave him a sanction (penalty) of 22 days in custody. He wishes to be reassessed for the Drug Court program but the Magistrate sternly told him, “You’ll need to convince us that you’re committed to the program.”
6. Participant “M” (male)
• 28 years old.
• Was sentenced in September 2008.
• The Magistrate briefly read through the participant’s journal which he had handed up to her personally. She paused and read a quote of his from the journal: “I have been clean for 37 days.”
• Magistrate: “Good to see. Keep on counting. Good to see.”
• The participant explained that he had not been clean for so long. He was 12 years old when he had started using pot and other drugs
• Magistrate: “Why bother with this program?”
• Participant “Because I want to be clean and be with my little girl.”
• Clapping by all in courtroom after this positive hearing.
7. Participant “P” (male)
• Handed up his journal to the Magistrate but it was not fully completed.
• He explained that he is finding it hard to adjust to life ‘on the outside’ (of jail).
• He is schizophrenic and anxious but the Magistrate said he has made a good start on the program.
• Again, clapping after this hearing to encourage him to keep pressing on with his rehab. Program.
8. This Drug Court participant was granted weekend leave from Mirikai for having good reports on his progress through the program. He said, “I’ll be a Senior next week.” The Magistrate noted that he had made a strange request to her in his journal that he wanted to go back to weekly court visits on a Monday morning instead of fortnightly appearances. He said this was because he didn’t know what to do with himself when the other participants in the program come weekly to the Drug Court but the Magistrate suggested ways he could otherwise occupy himself on the non-court Monday mornings and finished with, “See you in a fortnight.”
9. This male Drug Court participant is shy and, although he has a buddy, things are not going very well at Mirikai.
10. Participant “P” (female)
• The Magistrate told this participant that she had made a much bigger effort than last week, including the doing of some community service.
• still has 66 hours of community service to do
• The Magistrate concluded by saying that this participant has had a better week than last week and encouraged her to keep doing community service and writing in her journal.
11. Participant “J” (male)
• A heroin user who wishes to apply for eligibility for the Drug Court program.
• In custody since July (brought into dock through side door by Corrective Services officer and then handcuffed and taken away once hearing finished).
• Queensland Health and Queensland Corrective Services reports are due on 9 November.
• Proposed date for Drug Court sentencing hearing: 23 November.
12. Participant “W” (male)
• Has recently tested positive to cannabis.
• The Magistrate said, “No poppy seeds!”
• He told the Magistrate he had a good weekend with his son and learned some parenting skills.
• The Magistrate imposed a sanction of 10 hours extra community service.
• No clapping after this hearing.
13. This male participant missed a random drug test (referred to as a ‘random’) and has been receiving messages from old drug associates on his mobile phone. The Magistrate told him, “Get a new SIM card from Woolies for $2”. Drug tests have been sent away so the Magistrate told him that she’d have to wait until the results are in. Her parting words to him were, “Get to your meetings.”
14. “A blast from the past” – a graduate of the Drug Court program
This young man was invited by the Magistrate from the public gallery at the back of the courtroom up to the chair next to the bar table and invited to share what has happened in his life since successfully completing the program. He proudly explained that he has his own marketing business, ‘UFO Industries’, with five full-time staff and two part-timers. He is clean and is still undergoing monthly drug testing. He is back with his family and has actually been given a key to the house. He is boxing every day to keep fit. His final words were sobering: “I’d be dead if it wasn’t for this program.”
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02.14.10
Posted in Agreements, Family, Law in a Changing Society, News at 7:57 pm by admin
Queensland’s controversial surrogacy bill was passed on12th February 2010 by 45 votes to 36. Two Labor MPs crossed the floor to vote against the Bligh Government. Until this time, a contract for surrogacy had been unlawful in this state.
Surrogacy means substitute, and in this context the term is used for a substitute birth mother. Surrogacy is when a woman agrees to become pregnant and carry to term and deliver a baby for another party or parties. (known as gestational carrying)There are a range of ways this can occur including intercourse, artifical insemination or implanting an embryo. This may be done for altruistic reasons or for a sum of money (commercial surrogacy) which may be done through an agency. Given that altruistic surrogacy is now lawful in Queensland there will typically be a surrogacy contract drawn up. Surrogacy is an option when there are medical or other reasons for why a person cannot have a child in the natural way, for example, infertility, a medical condition that makes pregnancy risky for a woman, a desire to have a child but not go through a pregnancy, same sex couples and single people.
Debating this issue has been legally and morally difficult for many members of our Parliament .
Legally the presumption has been that a woman who gives birth to a child is the baby’s mother. In surrogacy, the mother is not the one who gives birth but the person who has acquired legal rights to the baby once born. So the law in Queensland will be changed so that the person or persons who contacted the surrogate birth are the baby’s legal parents.
Morally there are difficulties too. Some members of the Queensland Parliament believe that ideally children need parents of both sex and were morally concerned with babies being available through surrogacy to same-sex couples or to single men or women. Others felt it was discriminatory to exclude anyone from being a parent – essentially all people have a right to have a child to raise as their own and that Medicare payment should be equally available.
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08.22.09
Posted in Crime and Society, Law in a Changing Society, News at 9:56 am by admin
The termination of pregnancy is unlawful (s224 -s226) in Queensland unless the defence in s282 applies.
s282 states:
A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.
However, the controversial drug RU486 is being increasingly used for abortions. The question whether drug-induced or medical terminations should be lawful has been raised as s282 specifically applies to surgical operation. Doctors in two Queensland’s hospitals have stopped performing drug-induced abortions until the law is changed.
Individuals using RU486 have been charged with the offence of illegally procuring an abortion.
The government has indicated that s282 will be amended. The Premier said: “What we are looking at is where a doctor provides medicine that is authorised for any purpose, that they should be entitled to the same protection already provided under the Criminal Code for any authorised surgery, whether it is in relation to termination of pregnancy or indeed any other surgery” .
See the article by Jamie Walker in The Weekend Australian August 22-23
at http://www.theaustralian.news.com.au/story/0,25197,25964134-23289,00.html
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