Tuesday, 16th of January, 2018

Rights, Disability and Access

Children's Rights

Care and Protection of Children and Young People

In July 2000, the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) came into force. The Act is based on the United Nations Convention on the Rights of the Child and establishes the rights of the child to be brought up in a family and the family's responsibility towards the child. The Act moves away from the traditional 'child rescue model' that took children away from the family unit, and instead recognizes that under most circumstances, the child's best interests are served within the family. 

The CYPFA together with the Youth Justice Act 1997 (Tas) are the two main statutes governing the rights of children in Tasmania.

Objectives and Principles

The object of the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA) is to provide for the care and protection of children in a manner that maximises a child’s opportunity to grow up in a safe and stable environment and to reach the child’s full potential (s7(1)). The administration of the Act is founded on the adoption of the following key principles (s8(1)):

  • the primary responsibility for a child’s care and protection lies with the child’s family;
  • a high priority is given to supporting and assisting the family to carry out that primary responsibility in preference to commencing legal proceedings and;
  • if a family is not able to meet its responsibilities to the child and the child is at risk, then the Secretary (of the Department of Health and Human Services) may accept those responsibilities.

The Act states that ‘the best interests of the child must be the paramount consideration’ (s8(2)(a)) and emphasises that children should, where possible, remain within their own family, culture and community setting (s8(2)(b)).

This blend of legal protection by the State and emphasis on family responsibility within the community reflects the principles expressed in the United Nations Convention On The Rights of the Child.

In addition, the child’s views must be sought and given serious consideration, taking into account the child’s age and maturity. Where the child is likely to be separated from their family, the child’s family and other persons interested in the child’s well-being must be given the opportunity to present their views and be provided with sufficient information to enable them to participate fully in the proceeding.

Commissioner for Children

The Tasmanian Commissioner for Children is an independent statutory officer and focuses on matters that affect children and young people. The Commissioner is governed by the Children, Young Persons and their Families Act 1997 (Tas) (CYPFA). The purpose of the Commissioner is to research issues around legislation, policy and practices that impact on children and young people in Tasmania.

The role of the Commissioner is to:

  • encourage the development of policies and services;
  • provide independent advice on policy and practice standards to involved parties, including the Minister;
  • co-ordinate and provide community education programs; and
  • perform independent investigations of complaints, often at the request of the Minister.

The Commissioner for Children has several other functions (s79, CYPFA) including:

  • the capacity to act as an advocate for a detainee under the Youth Justices Act 1997; and
  • to advise the Minister for Children of on any matter relating to the health, welfare, education, care, protection and development of detainees under the Youth Justice Act 1997.

The Commissioner does not investigate individual complaints unless referred by the relevant Minister for Children. Complaints should be referred to the Tasmanian Ombudsman.

The Commissioner is also required to establish the Children and Young Persons Advisory Council, Children’s Consultative Committee and other appropriate committees.

Intervention by the State or another party

The term ‘ward of the state’ has been replaced by the term ‘guardianship’ in the Children, Young Persons and Their Families Act 1997 (Tas). Children do not automatically stay in the care of the State until they are 18 years old – care and protection orders last for shorter periods and there will be clear statements about when orders are to be reviewed. People other than the government can be granted guardianship of a child so the child can stay in a familiar but protected situation.

Child Protection

Child Protection and Children

Child Protection has responsibility for the assessment of reported situations where it is suspected that a child is at risk of physical, sexual or emotional abuse or neglect.Responsibility includes children under the age of 18 years.

Child Protection can be contacted on 1300 737 639 at any time. Online notifications where you believe suspect or know a child may be at risk of abuse or neglect can also be made.

The CYPFA requires certain groups of professionals to notify Child Protection of any child whom they have reason to believe has suffered, or is at risk of suffering maltreatment (see Mandatory Reporting).

Child 'At Risk'

 

The CYPFA provides the following definition of a child ‘at risk’ (s4):

  • the child has been, is being, or is likely to be, abused or neglected; or
  • any person with whom the child resides, or who has frequent contact with the child (whether the person is or is not a guardian of the child):
  • has threatened to kill or abuse or neglect child and there is a reasonable likelihood of the threat being carried out; or
  • has killed or abused or neglected some other child or adult and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or

the guardians of the child:

  • are unable to maintain the child; or
  • are unable to exercise adequate supervision and control over the child; or
  • are unwilling to maintain the child; or
  • are unwilling to exercise adequate supervision and control over the child; or
  • are dead, have abandoned the child or cannot be found after reasonable inquiry; or
  • are unwilling or unable to prevent the child from suffering abuse or neglect;
  • the child is under 16 years of age and does not, without lawful excuse, attend school regularly.

Ex-nuptial children

 

A child is presumed to be the child of a man and woman if they were married when the child was born or conceived, or if they marry after the child's birth (s89Marriage Act 1961 (Cth)s5Status of Children Act 1974). However, all children have equal status in law whether they are born to a married couple or any other form of relationship (s3Status of Children Act 1974).

The Status of Children Act 1974 sets out to remove any legal discrimination against ex-nuptial children. The relationship between a child and their parents is to be determined irrespective of whether the parents were married or not. In particular, ex-nuptial children have equal rights with nuptial children to inherit from their parents under a will or on intestacy. They can make applications under the Testators Family Maintenance Act 1912 (Tas). The Status of Children Act helps children identify their fathers by providing for voluntary recognition of paternity and legal presumptions of paternity, notably arising from cohabitation (that is, living together) during the period around the child's conception (Part II of the Act).

The Family Law Act 1975 (Cth) provides for ‘parentage testing’ procedures (blood and DNA tests) which the courts can require to be performed if the parentage of a child is in dispute under the Family Law Act 1975 (Cth) or the Child Support (Assessment) Act 1989 (Cth).

What is Abuse or Neglect?

The Children, Young Persons and their Families Act defines abuse or neglect as (s3(1)):

  • sexual abuse; or
  • physical or emotional injury or other abuse, or neglect, to the extent that:
  1. the injured, abused or neglected person has suffered, or is likely to suffer, physical or psychological harm detrimental to the person's well-being; or
  2. the injured, abused or neglected person's physical or psychological development is in jeopardy.

Child abuse/neglect is considered to have occurred when a child has been subjected to emotional or physical actions or omissions. These acts or omissions need to have been so severe and persistent that significant harm or injury has occurred or is likely to occur to the child. Child abuse/neglect is also considered to have occurred where a child has been exposed or subjected to exploitative or inappropriate sexual acts.

Child abuse or neglect allegations are commonly grouped into the following categories:

  • emotional maltreatment;
  • physical maltreatment;
  • sexual maltreatment; and
  • neglect.

These categories do not represent ‘absolutes’, are not mutually exclusive and rarely reflect the complexity of circumstances that surround the harm.

Emotional Maltreatment

This describes the significant impairment of a child's social, emotional, cognitive or intellectual development and/or significant disturbance of the child's behaviour resulting from behaviours such as persistent hostility, rejection or scape-goating by family members or care-givers.

Children can experience emotional harm when they are not protected from violence. They can suffer harm either directly or indirectly, for example when:

  • they witness repeated abuse or violence;
  • violence is frequent within the home;
  • they are assaulted when attempting to intervene.

Physical Maltreatment

This includes significant physical harm or injury experienced by a child as the result of severe and/or persistent actions or omissions, such as:

  • injuries such as cuts, bruises, burns and fractures caused by a range of acts including beating or shaking; or
  • inappropriate administration of alcohol or drugs; or
  • attempted suffocation; or
  • excessive discipline or punishment; or
  • deliberate denial of a child's basic needs such as food, shelter or supervision to the extent that injury results.

Sexual Maltreatment

This occurs when a child has been exposed or subjected to sexual behaviours or acts which are exploitative and/or inappropriate to their age or developmental level. Harm that results from sexual maltreatment may include emotional trauma, physical injury or impaired development, although the harm resulting from the maltreatment may not be readily identifiable or apparent.

Neglect

Neglect is experienced by a child when the family or carer does not provide food, shelter or medical attention or supervision to such a severe and/or persistent extent that the child's development is or is likely to be significantly damaged or injury occurs or is likely to occur. This description mainly refers to harm resulting from acts of omission. The deliberate deprivation of a child's needs should be considered within the context of physical or emotional maltreatment.

Children and Domestic Violence

The Family Violence Act 2004 (Tas) grants children the ability to report acts of domestic violence and apply for a Family Violence Order (FVO). The Act provides harsh penalties for those adults convicted of committing such acts while a child was present. For a child to apply to the court for a Family Violence Order (FVO) the child must be capable of understanding the nature of the proceedings (s15(2)(c)). A copy of the application for a FVO must also be forwarded to the Secretary of the DHHS (s15(3)).

In considering whether a FVO should be made under the Act, the court must consider the safety and interests of the person for whose benefit the order is sought and any affected child to be of paramount importance (s18). While in sentencing, section 13 provides that the court may consider it to be an aggravating factor that the offender knew or was reckless as to whether a child was present on the premises at the time of the offence.

Mandatory Reporting

Prescribed Persons

The CYPFA emphasises that everyone in the community has a responsibility for ensuring that children are safe and protected. In addition, the Act lists the following people (prescribed persons) who are legally required to report their suspicions that a child is being abused (s14):

  • medical practitioners;
  • nurses and midwives;
  • dentists and other dental professionals;
  • police officers;
  • psychologists;
  • police officers;
  • probation officers;
  • school principals and teachers in any educational institution (including a kindergarten);
  • persons who manage child care services or provide child care for a fee or reward;
  • in general people employed, or who are volunteers in government agencies or organisations funded by the Crown that provide health, welfare, education, or care wholly or partly for children.

The Act provides a penalty of a fine up to 20 penalty units for mandatory reporters who do not report their suspicions of child abuse or neglect.

Reporting

If a prescribed person believes or suspects with good reason that a child is being or is likely to be abused or neglected, or is in real danger from the person whom they are living with, the person must contact the Secretary of DHHS or a Community-Based Intake Service (otherwise known as Gateway Services) with this information as soon as practicable. This also applies to unborn children (s14(2)CYPFA). Gateway Services are currently run by Mission Australia and Baptcare. Their contact details are availableon the DHHS website

The CYPFA was amended in 2009 so that the public and prescribed persons may notify their concerns about unborn children who may be at risk of abuse or neglect once born (s13(1A) and s14(2)).

A notifier will speak to a staff person who will record their concerns (s14(5)). Child Protection may then gather more information so that a recommendation can be made about what needs to be done (s18). The case may be referred to a more appropriate service for response, referred to police for joint investigation or classified and prioritised for a risk and/or needs assessment by Child Protection.

Rights as a 'Notifier'

A person who provides information about child abuse and neglect to Child Protection is a notifier. Under both the CYPFA section 16, and the Right to Information Act 2009 (Tas) section 38 the identity of a notifier does not have to be released nor does any information contained in a notification that may lead to the identification of a notifier. In court, the identity and any evidence identifying a notifier is confidential and generally withheld from court proceedings (s16(3), CYPFA). If, however, the evidence of the notifier is critical to proceedings and needs to be provided for the proper administration of justice, the court may grant leave to hear the evidence (s16(5)(a)). The notifier may also consent to their evidence or their identity being revealed in proceedings (s16(5)(b)).

Care and Guardianship

Placing a Child in Care

A child may be placed with a member of the extended family or in an out-of-home care placement approved by Child Protection Services if the child needs protection and their safety cannot be guaranteed if they remain in the home. Sometimes this placement will change after Child Protection has assessed the situation and there have been changes at home to make sure that the risks to the child’s safety are no longer there.

The term ‘ward of the state’ is not used, rather the CYPFA uses the term ‘guardianship’. Care and protection orders may be made for short periods and there are provisions for when orders are to be reviewed. This means that children are no longer automatically in the care of the State until they are 18 years old.

Also under the CYPFA, people other than the Secretary can be granted guardianship or custody of a child so that the child can stay in a familiar, but protected, situation where there is little change in the child's established family, religious, cultural, educational and social connections.

Guardianship

A ‘guardian’ under the CYPFA means (s3(1)):

  • a parent of a child; and
  • a person (other than the Secretary) who is the legal guardian of a child; and
  • a person (other than the Secretary) who has the legal custody of a child; and
  • any other person who generally acts in the place of a parent of a child and has done so for a significant length of time.

Note: some of these terms, such as ‘legal custody’ are no longer used in the Family Law Act.

Best Interests

The court must consider the following matters when determining what is in the child’s best interests (s55):

  • any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court considers relevant to the weight it should give to the child’s wishes;
  • the relationship the child has with guardians and other persons and the likely effect of any changes in the child’s circumstances on those relationships;
  • the relationship that guardians have with the child and the capacity of each guardian or of any other person to provide for the needs of the child, including emotional and intellectual needs;
  • the need to protect the child from physical or psychological harm;
  • the child’s maturity, sex, background and culture and any other characteristic of the child and any other fact or circumstance that the court considers relevant.

Whether the child is represented by a lawyer or not, the court must allow the child a reasonable opportunity to give their own views personally to the court if they are capable of doing so and wish to do so. 

The court must not proceed to hear an application unless:

  • the child is represented in the proceedings by a lawyer; or
  • the court is satisfied that the child has made an informed and independent decision not to be so represented.

Order Hearings

Evidence

A child and its guardians are entitled to full particulars of the evidence, on the basis of which it will be alleged a child is ‘at risk’, for instance, failure to supply necessary food, supervision and medical treatment. As a matter of practice, the Department does supply to the child, their guardian or their legal representative, statements of witnesses outlining the evidence each witness will give. This is especially important in the case of an expert witness, for example a doctor or psychiatrist.

Failure to supply the statement (or ‘proof of evidence’ as it is usually called) of such an expert is a ground for seeking an adjournment of the hearing after such evidence is given, so as to allow an opportunity to prepare cross-examination of that witness and consult other experts on the evidence given. If a proof of evidence of an expert witness is supplied before the hearing date, then consideration should be given to consulting another expert on its contents. A request should also be made to the Department (if the child is in its care) for any expert proposed to be called on behalf of the guardian or child, to examine the child where this is appropriate (for example to test the opinion presented by the Department's psychiatric expert). The Department will usually co-operate with such a request.

When the court proceeds on the appointed day to hear the case in full, witnesses for the Department are called and the child or its guardians have the right to cross-examine this evidence. The Department has the right to re-examine those witnesses to clear up any matters raised in cross-examination.

After the Department's witnesses have given their evidence, the child or its guardians have the right to give evidence and call witnesses to support their opposition to the application. It is wise to have legal representation to assist in deciding what evidence to call and who should give it. As the guardian is a party to the proceeding, they can, at the close of the Department's case, submit to the court that there is no case to answer.

Rules of Evidence

While the rules of evidence do apply in proceedings under this Act, they are not applied inflexibly, i.e. the court has some discretion and will not be applied where to do so would prejudice the very purpose that they are meant to serve, namely the best interests of the child (s63CYPFA). Accordingly, it is possible to have hearsay evidence admitted into evidence (for example a witness relates what a parent said or admitted to) that ordinarily would be inadmissible as hearsay.

Parties

Parties to applications under this Act include the Secretary of DHHS, the child and each guardian of the child (s64). The court may hear and determine an application for an order in the absence of a party to the application (s66). It may also join a person who is not a party to the proceedings where it intends to make an order binding upon that person (s67). If the court dismisses an application under this Act by the Secretary, the court may make such order for costs against the Crown in favour of any other party to the proceedings as the court considers appropriate (s68).

Importantly, the Act expressly provides that the court must not proceed to hear an application unless the child is represented by a lawyer (s59(1)(a)) or the court is satisfied that the child has made an informed and independent decision not to be so represented (s59(1)(b)). Occasionally the hearing will proceed without a lawyer however in using its discretion the court must be of the opinion that it is in the best interests of the child (s59(2)). It may sometimes also be the case that whether or not the child is represented the court may order that the child be separately represented.  

Orders in Care and Protection Proceedings

Care and protection/assessment orders

Introduction

The court may make care and protection orders if they think it is in the interests of the child so to do (s42CYFPA). The court must also be satisfied that a child is at risk, and that the order must be made to secure the care and protection of the child.

When a person contacts Child Protection because they are worried about the safety of a child/young person, Child Protection makes a decision about what to do with that information. If it appears that the child has been harmed or is at risk of abuse or neglect, there needs to be a judgement made about how to make sure that the child is safe.  This is called an assessment. An assessment usually involves speaking with the child, parents, other services and professionals. It may also include a medical examination of the child if they have been harmed.

So that this assessment can happen, an assessment order may need to be made. This order gives legal authority to certain authorised Child Protection staff and police officers to request specific things and actions from people in order to assess the safety and possible ongoing risk to a child. A police officer assisting the Secretary of the DHHS, who has obtained a warrant may enter or break into, remain in and search any premises or place and seize and remove items (s19). In addition, such a police officer who has not obtained a warrant may also exercise these powers if entry to the premises or place has been refused or cannot be gained and the police officer believes on reasonable grounds that delay would prejudice the assessment or the safety of the child whose circumstances are being assessed (s19(4)).

An authorised officer may ‘require’ a guardian (or person with whom a child is living) to take the child to a place or person, specified by the authorised officer, for the assessment to happen (s20).

On occasions, children may be placed into the short-term custody of Child Protection under a requirement or warrant if (s21):

  • the child is at risk; and
  • further assessment is required; and
  • the child could not be properly assessed unless they were in a safe place away from the normal place of care.

The difference between care and protection orders and assessment orders

Staff from either Child Protection or the Tasmania Police will use an assessment order:

  • when a child needs to be kept safe because of immediate danger or danger in the near future, and
  • time is needed for the gathering, confirming and analysis of information.

A care and protection order will be applied for by Child Protection where:

  • a child needs to be kept safe for a specified period of time; and
  • the family needs ongoing support.

Child Protection staff will apply for a particular care and protection order only after they have gathered as much information as possible and talked to the child/young person, the family and other relevant people. Sometimes a family meeting, called a family group conference, is called to help decide what type of a care and protection order needs to be sought.

Sometimes a person may oppose the request for a care and protection order.  Then the court may grant an interim care and protection order so that the child is safe until all of the evidence can be heard.

Assessment Orders

An assessment order may:

  • authorise the examination and assessment of the child;
  • authorise the Secretary to require any person to answer questions or provide a written report in relation to the child;
  • grant custody of the child to the Secretary;
  • any other order the court considers appropriate.

An assessment order has effect for a period not exceeding four weeks (s22(4)).  It can be extended for a further eight weeks (s22(5)(a)) if there is to be a family conference or four weeks in any other case (s22(5)(b)). An assessment order continues to have effect where another application has been made, and the date of determination of that application falls outside the four week period (s22(6)). The interim assessment order, in addition to the possibilities listed above, may also order the guardian of the child to take steps specified in the order to secure the proper care and protection of the child, or direct that a person specified in the order be allowed or not be allowed access to the child or to reside with the child.

The following are the sort of assessment orders used:

  • a 'requirement' or 'warrant' leading to an initial assessment order lasting for a period of 120 hours;
  • an assessment order not exceeding four weeks which is granted by the court so that a child can stay in the care of someone other than their guardian if further assessment is required;
  • an extension of the assessment order once only for a further four weeks or up to eight weeks if a family group conference is to be convened.

When the Order is opposed

Sometimes the application for an assessment order will be opposed. In such circumstances the court will determine what is best for the child based on submissions heard from both sides. During this time, the court may grant an interim order. This order could have the same or other conditions so that the child remains safe until all submissions have been heard and a decision reached.

Care and Protection Orders

The courts may make a care and protection order if satisfied that a child is at risk (s42). These orders can be for a period up to 12 months, or until such time as the child attains 18 years of age (s42(4)). A court may make a care and protection order to preserve a situation if it is satisfied that proper arrangements exist for the care and protection of the child and the child would be likely to suffer significant psychological harm if the arrangements were to be disturbed and it would be in the best interest of the child for the arrangement to be incorporated in a care and protection order (s42(3)).

Orders may include conditions to be observed by the child, the guardian of the child, a person with whom the child is living, the Secretary, a person who is to supervise the child, a person who is granted custody of the child, and any other person who is involved with the care and protection of the child.

The order may contain one or more of the following:

  • an order requiring the child or its guardian to do something specified in the order or to refrain from doing something specified in the order for a period of up to 12 months;
  • an order granting custody of the child to either a guardian of the child, a member of the child’s family, the Chief Executive Officer of a non government organisation that provides facilities for the residential care of children, the Secretary, or any other person that the court considers appropriate in the circumstances for a period of up to 12 months;
  • an order placing the child, for a specified period not exceeding 12 months, under the guardianship of the Secretary; or one or 2 other persons;
  • an order placing the child under the guardianship of the Secretary or one or 2 other persons until the child turns 18 years of age;
  • an order providing for access to the child;
  • an order providing for the way in which a person who has custody or guardianship of the child under an order of the court is to deal with matters relating to the care, protection, health, welfare or education of the child;
  • any other order of the court considers appropriate.

Where an order has been made for a period of up to 12 months, that period may be extended by the court on application of the Secretary for a total period not exceeding 3 years.  However, before an extension may be granted, a family group conference must be held to review to review the arrangements for securing the care and protection of the child (s44).

A care and protection order may be varied or revoked by the court at any time (s48). 

Options other than Care and Protection Orders

Maintenance

A child’s previous guardians have the duty to maintain financially a child who is in the custody or under  the guardianship of the Secretary. The court may make a contribution order (s73CYPFA).

Restraint orders

Upon receipt of an application for an assessment order or a care and protection order, the court may make, in addition to or instead of making that order, a restraint order (s23(1)(a)s43(1)(a)) or an interim restraint order (s23(1)(b)s43(1)(b)) against a person.

Voluntary Care Agreements

A voluntary care agreement (s11) is an agreement between the person who looks after the child, most often the natural parent, and Child Protection. A voluntary care agreement allows staff in Child Protection to be responsible for the day-to-day care of a child/children for an agreed period of time. An agreement does not transfer guardianship.

There are conditions set down for starting and for ending voluntary care agreements.  The agreement must be in writing and signed by both a Child Protection staff member and the person who normally has the care of the child (s11(8)).  If it involves a young person (defined as a 16 or 17 year old) the young person must also sign the agreement. If it involves a child under 16 years of age, staff in Child Protection must consult with the child if they are able to understand what is happening.

The child/young person must consent to the agreement or an extension of the agreement, unless Child Protection believes that they are unable to understand, or give informed consent to, the agreement. An agreement can be for a period of three months or less.  If necessary, the length of the original agreement can be extended, however it cannot be continued beyond a total of three months (s11(4)). In exceptional circumstances there may need to be an additional new voluntary care agreement drawn up after the original agreement has been terminated.

Ending an Agreement

Orders under this Act, or any other enactment which deals with the care of the child, can end a care agreement. Another way a care agreement can be ended is when Child Protection staff, the child's guardians and the young person agree to its conclusion.  For this to happen, Child Protection staff must be satisfied that proper arrangements have been made for the care of the child or young person. An agreement can also end when the young person makes such a request in writing and Child Protection is satisfied that proper arrangements exist for the care of the young person (s12(4)). An agreement is used if a child's caregiver (guardian) is, or will be, unable temporarily to provide the necessary day-to-day care and supervision for the child. Voluntary care agreements should not be considered where there is reasonable belief that the child is at risk of abuse or neglect.

Family Conferencing

Where there are significant care and protection concerns, a family meeting (family group conference) can be called either by Child Protection or by the court (s30). The purpose of a conference is to bring families, professionals and others together to share information and make decisions about children at risk of harm and neglect. The outcome of a family group conference should be a clear determination on how the child will be kept safe, how decisions about the child will be made in the future, what resources are needed to make this happen and where these resources will come from. The family is assisted to develop a plan that will keep the child safe in the future as well as looking after the child’s health and well-being. This plan has to then be approved by Child Protection before it can be implemented. Occasionally, Family Group Conferences may be reconvened to review initial decisions and make further recommendations in respect of those arrangements.

Convening a Family Group Conference

A Family Group Conference may come about from a recommendation made by Child Protection, by an Advisory Panel or may be ordered by the court. The child, family and Child Protection select an independent facilitator who sets up the meeting and makes sure that there is a clear understanding among participants of both the process and purpose (s32).

During the Family Group Conference, the facilitator must, if necessary, allow the family members to meet privately to discuss matters and work out what they want to do.  Other participants (including advocates for the child and the family, community service organisation representatives, Child Protection, social workers and other invited professionals) may attend at different times to present information and offer advice.

The child's guardians and other family members should all agree on the final decision.  If an agreement cannot be met or the outcome is not acceptable to Child Protection then the conference may be reconvened or action may be taken to seek care and protection orders.

At the end of the Family Group Conference the facilitator must provide a report including the time, date, and place of the Conference, who participated and what decisions were made. A copy of this report should be provided to all who took part, including the child, the child's advocate, the guardians of the child, any other person that the facilitator considers appropriate and, depending on how the conference was convened, the court and/or Child Protection.

Protocols

Protocols are arrangements between various Departments or Agencies who may be dealing with the same family. These are put in place in order to make sure that all parties are working towards the same goal, that is the best interests of the child. Protocols exist between the DHHS and the following agencies amongst others:

The Family Court

The Family Court's jurisdiction is limited by section 69ZK of the Family Law Act 1975 (Cth) in that it must not generally make an order in relation to a child who is subject to an order which places them in the custody of, or under, a prescribed child welfare law. Further, where it appears to the Family Court that the Children’s Court proposes to make an order by which a child is placed in the custody of, or under the guardianship, care and control of, a person under a prescribed welfare law, the Family Court may adjourn any proceedings before it in relation to that child.

Under the provisions of section 91B of the Family Law Act, the Court may request the intervention in the proceedings of an officer of the appropriate State welfare department (in Tasmania, the DHHS).

The Federal Circuit Court

The Federal Circuit Court was created in 1999 in part to complement the Family Court of Australia. It seeks to provide a simpler and more effective alternative to litigation in the Family Court and almost half of all family law children’s applications are now heard in the Federal Circuit Court. 

As the Federal Circuit Court shares its jurisdiction with the Family Court of Australia there are arrangements for the transfer of matters between the courts. These arrangements enable a matter to be transferred to the court that is most appropriate having regard to the complexity of the legal issues involved or the evidence in the matter.

The Police

The Act specifies roles for police officers in relation to assessment orders, other legal orders and warrants. If the Secretary considers it necessary or appropriate, the Secretary may obtain the assistance of the Commissioner of Police in carrying out the assessment of the circumstances of a child. In certain circumstances, evidence for assessment and/or the immediate protection of the child, without a warrant, may only be provided by a police officer.

Aboriginal Community

Under section 9 of the CYPF Act, a decision or order as to where or with whom an Aboriginal child will reside may not be made under this Act except where an Aboriginal organisation has first been consulted. In making any decision or order under this Act in relation to an Aboriginal child, a person or the court must, in addition to complying with the principles set out in section 8:

  • have regard to any submissions made by or on behalf of a recognised Aboriginal organisation consulted in relation to the child; and
  • if a recognised Aboriginal organisation has not made any submissions, have regard to Aboriginal traditions and cultural values (including kinship rules) as generally held by the Aboriginal community; and
  • have regard to the general principle that an Aboriginal child should remain within the Aboriginal community.

Parents' Rights and Duties

Parents (and guardians) have the right:

  • to determine the child's upbringing and education;
  • to discipline the child (including reasonable corporal punishment);
  • to consent to the child's adoption; and
  • to take legal proceedings on their behalf.

Parents (and guardians) have the duty:

  • to maintain the child, and this duty is imposed equally on both parents (s66BFamily Law Act);
  • to send the child to school once the child reaches 6 years of age, and until they reach 16 years of age; and
  • to obtain medical attention for a child who is ill.

Broadly speaking, the law does not intervene between parent and child unless the parent abuses, neglects, fails to maintain the child or cannot control them. Any disputes between the parents about the children (for example, where parents separate and then contest residence of the children) will be decided according to what the court thinks is in the best interests of the child.

Corporal Punishment

Adults have no more right to hit a child than that they have to hit another adult. If they do, they commit assault that can be both a criminal offence and a civil wrong. However, as the law stands, parents and other adults in loco parentis (standing in the place of parents) have the right to administer corporal punishment to children in their care, provided the force used is ‘reasonable under the circumstances’. This right does not however extend to the corporal punishment of children in schools (s82A(1)Education Act 1994 (Tas)) and juvenile detention centres (s132Youth Justice Act 1997 (Tas)) while policy and licensing guidelines prohibit the use of corporal punishment of children in foster care and childcare.

The type or degree of force that is ‘reasonable’ is not set out in legislation and legal precedents are inconsistent. It is difficult to state what does and does not come within such a vague phrase as ‘reasonable under the circumstances’. It depends on the circumstances of each case and the standards of the court.  However, among the relevant factors are the following:

  • the age of the child — they must be old enough to appreciate correction and the punishment must be reasonable for a child of that age. One judge said: ‘a parent is not lawfully entitled to administer to an infant girl of 19 months any physical punishment except of the very lightest description, for example, a slight slap at the very most’;
  • the instrument of correction— canes have been held lawful, but not a loaded gun;
  • where a blow was administered. Normally, blows to the face or other vulnerable parts of the body are unlawful;
  • the force and number of the blows;
  • the seriousness of the child's offence;
  • the age, size, health, and perhaps sex of the child; and
  • the consequences of the blows - injuries requiring medical attention will normally suggest illegality.

Numerous parents over the last decade have been convicted in the Tasmanian Supreme Court for excessively punishing their children. In P v Tasmania (No 2) (2006) TASSC 35, the Supreme Court upheld sentence and conviction against a father for the ill treatment of three children extending back three decades. The sentence was a four year term of imprisonment.

In DPP v NLW and JGW (2004) TASSC 93, a sentence of 3 months imprisonment and a $1000 fine were upheld for an incident involving an acquaintance of the victim placing a vacuum cleaner over the boy’s penis, and rubbing Deep Heat on his testicles. The victim was 4 years old.

The case of R v V (2004) TASSC 18 also involved conviction for ill treatment of a child that occurred several decades prior. In 2004, a single mother was convicted of ill-treating her 19 month old boy. Her sentence included a 4 year period where she was not permitted custody of children under the age of 18 years without Departmental approval. The stress of her situation, which included heavy pregnancy, homelessness, and an attempt to leave a violent dysfunctional relationship were taken into account.

Bresnehan v R (1992) 1 Tas R 234 is an early example of the issues around corporal punishment. The light sentence of 10 weeks imprisonment is at a noticeable contrast with more recent cases where sentences are much harsher.

In Bresnehan, a father and his wife were prosecuted for various charges of ill treatment of a child and assault against all four of their children. The father was convicted of one count of ill treatment of his youngest son. In relation to the other charges of ill treatment of a child and assault the jury returned hung verdicts. The alleged incidents included:

  • the ‘cigar incident’: the children were forced to smoke cigars and eat the cigar butts; the youngest son was whipped, grabbed by the throat and thrown to the ground, two other children were also whipped (one or more of the children had been caught smoking);
  • the ‘tapes incident’: the stepmother whipped all the children on the hands with a horsewhip because a missing cassette tape had been found destroyed;
  • the ‘gun powder incident’: the youngest son was forced to hold his face over a mug of loose gun powder and the powder was ignited (he had taken it and apparently played with it);
  • a cattle-prodder was used to sting the children on the tongue and bottom;
  • a child was tied in a shed with a dog chain and hit with a shearing belt for not feeding the dogs properly.

Other incidents included being hit with a dog lead, a stock whip, a hearth brush, a shearing belt and a piece of wood. For the charge of ill treatment of his youngest son the father was initially sentenced to 12 months imprisonment. Because the jury’s verdict was guilty to this non-specific charge, it was unclear which incidents they found proven. The parents denied that most of these punishments took place at all. On appeal by the father the sentence was reduced to 10 weeks and backdated (Bresnehan v R (1992) 1 Tas R 234). This reduction was made because it was held that the trial judge had taken some incidents into account which were not the subject of a conviction, namely the charges relating to the other three children).

The trial judge and all three judges in the Court of Criminal Appeal gave mitigatory weight to the fact that the father had acted with a genuine belief that his methods were for the ultimate good of the child. So long as the law permits physical punishment of children subject to the proviso of unreasonableness, the law will be obliged to give such genuine beliefs mitigatory weight.

It should be noted that the Tasmanian Law Reform Institute’s 2003 Paper ‘Physical Punishment of Children’ argues that community standards are changing and increasingly the use of corporal punishment on children is viewed as inappropriate. Already, the corporal punishment of children has been banned in ten European countries.

Children's Rights and Duties

Medical Treatment

Where a child who is ‘capable of exercising a reasonable discretion’ (s51Criminal Code Act 1924 (Tas)) seeks medical treatment and a doctor consents to perform it, the only way the parent or guardian can stop the treatment is by applying to the Supreme Court for a restraining order. So, for example, a child or young person who is capable of exercising a reasonable discretion could ask a doctor for a contraceptive device or drug and, having the consent of the child/young person, the doctor can prescribe contraceptives in spite of the fact that the parents do not know about it. There is no age limit for buying contraceptives like condoms and spermicides from the chemist.

Marion’s Case – medical treatment for minors and people with disabilities

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery was within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood, however it is an important precedent in determining children’s rights in relation to their capacity to consent for medical treatment.

The impact of this case has been that parents cannot provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

International and Domestic Law

The UN Convention

In 1990 Australia signed and ratified the United Nations Convention on the Rights of the Child. This means that Australia agrees to be bound by the Articles of the Convention. The Convention is an agreement between countries to observe common standards for protecting the rights of children, especially when passing laws and implementing policies. It is important to note that while Australia has ratified the Convention, it has yet to legislatively enact many of the Articles found within it.

There are 40 Articles in the Convention covering issues such as child welfare, care and protection, juvenile justice, health, education and civil rights.

Family Law Act

Aspects of the law concerning the relationship between parents and children are dealt with under the Family Law Act 1975 (Cth). Children's rights in other areas are contained in state legislation and in the common law. Each of the parents of a child who has not attained the age of 18 years has shared parental responsibility unless they agree otherwise or the Family Court makes an order changing their responsibility. This principle applies equally whether a child is born within marriage (‘nuptial child) or whether the parents are not married (‘ex-nuptial child’). In this context, ‘a child’ means a person under 18, which is the age of majority for most purposes. Unless it is contrary to a child’s best interests, children have the right to know and be cared for by both their parents and the right to contact with their parents and other significant people in their lives (s60B(2)).

A parent may appoint someone on their death to be guardian of their children. This can be done in a will.

School

School Attendance

Full time attendance at a school is compulsory once a child reaches 5 years of age until they turn 16 years. A school includes State schools, other State centres, units or institutes that qualify, and registered schools – including non-government schools (otherwise known as private schools). If a parent wishes to home school, they must be registered home educators. A parent who fails to enrol their children or to home school can receive a fine of up to 10 penalty units (s4Education Act 1994 (Tas)).

School-aged children who will be attending State schools are entitled to enrolment at the State school which draws its students from the area in which his or her home is located – this is the ‘intake area’ for the school. If parents wish to enrol their child/ren in another school outside of the intake area, they are entitled to do so if the school has less than its maximum number of students (s19).

If you are looking to leave school before the age of 16, seek the advice of your guidance counsellor at school.

Punishment

A child may be suspended for a period of up to 2 weeks from school by the Principal according to the Education Act (s37). Only the Secretary of Education can decide if a child will be expelled, or even prohibited from enrolling at a State school (s38). It is normal procedure for the Secretary to provide written advice to this effect to the parents of the child. The Secretary also has a discretion to refuse the enrolment of an expelled child at another State school or other institution.

A child can be exempted from enrolment in a school if requested by their parents or guardian. If a parent of a child considers it to be in the best interest of that child to leave school early, they may make application for an exemption from the requirement under the Education Act (s5) to send the child to school. This is at the Secretary’s discretion.

Students

Full-time students over the age of 16 years may be eligible for Youth Allowance. Their parents' income and means may affect whether this is payable, unless they can show they are independent. Abstudy is available to students of Aboriginal or Torres Strait Island descent.

Employment

It is an offence to employ a child under the age of 11 years in street trading (Children, Young Persons and Their Families Act 1997 (Tas)s94(1)). The prohibition extends to children who have not reached 14 years of age if trading between 9pm and 5am is involved (s94(2)). An exception exists however for those children acting on behalf of a school or other charitable purpose (s94(3)).

It is also an offence to employ a child while they should be at school (Education Act 1994 (Tas)s82) although if the circumstances warrant it, authorisation may be granted by the Secretary of the Department of Education. This means that traditional after school jobs, such as paper rounds, and other tasks are legal.
It is an offence to permit a child under 14 to participate in restricted categories of ‘public entertainment’ CYPFAs96). This does not include public entertainment where the net proceeds are devoted to the benefit of a school or a charitable purpose or takes place on premises used for religious services.

Children under 16 years of age may not be employed underground in a mine, drive tractors unless supervised, operate dangerous machinery, or (unless they are apprenticed) undertake electro-plating. Children under 18 years of age cannot undertake abrasive blasting or lead processing. They also cannot hold a certificate of competency (as, for example, a welder or a boiler attendant). Where a child is employed, the relevant award or industrial agreement may have special provisions for young people.

Unemployed children aged over 16 may qualify for Youth Allowance. In certain circumstances, for example where the child is homeless, a child may qualify for a Centrelink income support payment under the age of 16.

Leaving Home

Young people can face legal problems if they leave home. Up to the age of 17 years, the Department of Health and Human Services may seek to intervene if they believe a child is ‘at risk’ of being neglected or their guardians are unable or unwilling to exercise adequate supervision and control. The Department may also intervene for those children that are not attending school regularly. Generally the Department is reluctant to intervene with those aged over the age of 14.

The age of 17 is generally the age at which a person may leave home. Although young people who are approaching that age would not normally be forced to go home against their wishes they can be subject to government intervention. It depends on the facts, especially the attitudes of the parents, the maturity of the young person and other factors, such as satisfactory accommodation and employment, and a style of life that the authorities regard as reasonable.

Some income support is available for 16-20 year olds through a government provided pension known as Youth Allowance. However, to be successful for a Youth Allowance claim, generally the applicant must have either completed their final year of secondary college (eg. year 12), be undertaking full-time study, or have agreed to enter into a Youth Allowance Activity Agreement.

Personal Choices

Smoking

In Tasmania it is an offence to sell cigarettes to anyone under 18 years of age. Section 64 of the Public Health Act 1997 (Tas) provides that the sale of cigarettes to children is illegal. A breach of the provisions carries a maximum fine of $5,000 for a first offence and $10,000 for a subsequent offence. It is not however an offence for an individual aged under 18 to buy cigarettes. If an individual is caught smoking or a nominated officer believes that a child has smoked they may be warned or cautioned or alternatively given information (s63(1)Public Health Act 1997). In such circumstances the child must give their name and address, the name of their parent/s and information relating to where the tobacco product was bought (s63(3)Public Health Act 1997).  

Drinking

It is an offence for a person under the age of 18 years to consume or possess liquor in a public place (s13Police Offences Act 1935 (Tas)).  It is an offence for a person under the age of 18 to buy, purchase for another, consume or have in their possession liquor on licensed premises. The fine is a maximum of 10 penalty units (s73Liquor Licensing Act 1990 (Tas)).

Some licensed premises may have areas designated as an area where persons under the age of 18 years may not enter or remain (s84, Liquor Licensing Act). For example, some areas allow children to remain for the purposes of having a meal or if they are in the company of a parent or guardian. The area should have a sign indicating that it is a restricted area. If a police officer suspects that an offence under the Act has been committed by a young person, that person must supply their name, address and date of birth upon request. Where such provisions exist, minors must be removed from those premises.

Tattooing and Body Piercing

It is not an offence to tattoo or pierce a person under 18 years of age. However, in order for the tattooing to take place, many tattoo parlours require a permission slip to be signed by either a parent or guardian. This is an industry self-regulation issue.

Legal Matters

Contracts and Leases

The general rule is that people under 18 are not bound by contracts, leases and other transactions, but such agreements can be enforced against the other party at the option of the young person. There are two exceptions to this rule. In both cases, the agreement can be enforced against the young person where:

  • the contract is for goods and services basic to the support of life, and certain other goods and services 'appropriate to the age and station in life' of the young person. This includes mobile phones;
  • the contract is for apprenticeship or service.

In practice, landlords and other people doing business with minors will often require someone (for example, a parent) to guarantee that the minor fulfils their part of the bargain. This makes the guarantor (that is, the person giving the guarantee) liable as well as the minor.

Wills

Under the Wills Act 2008 (Tas), a minor (a person under 18 years of age) cannot make a will unless they are married, or intending to marry (s7).

Firearms

Under the Firearms Act 1996 (Tas) no one can use, own, buy or sell a gun unless the person holds a gun licence or is otherwise authorised.  The requirements for a licence are that the person is at least 18 years of age. A person under the age of 18 years must not possess or use a firearm unless the person is the holder of a minor’s permit. A young person can apply for a minor’s permit if they are over 12 and under 18 years, are a fit and proper person and have the written permission of a parent or guardian. A minor’s permit allows that young person to possess a specified firearm under the supervision of a holder of a licence or a person approved to supervise young people in receiving instruction in the safe use of a firearm or target shooting on approved range.

Court Proceedings

Criminal Matters

Children's rights in relation to police questioning, arrest and interrogation, criminal responsibility, court and criminal proceedings are dealt with under Youth Justice.

Civil Court Proceedings

A person under 18 (a minor) cannot sue another person in a civil action without a ‘next friend’. This is an adult whose name appears on the court documents and who guarantees to pay costs if they are ordered against the minor. If a person under 18 is sued, the defence must name an adult (usually a parent) as a next friend.

If a person under 18 is suing and wants to settle out of court, the settlement must be approved by the court. For example, a 16 year old injured in a car accident may sue to recover damages for those injuries. In almost all such cases, negotiations will take place before the case actually goes to court and an agreement may be reached on the amount of damages to be paid. The agreed damages must be approved by the court, whether or not a statement of claim has been issued (‘infants compromise’).

If a person under 18 recovers damages (for example, for injuries) the money must (unless the court orders otherwise) be paid to the Public Trustee to be held in trust for the child until they reach the age of majority at 18 years of age. Payments can be advanced for education or for other reasons which the Public Trustee finds are in the minor’s interest.

Any court document must be served on the person under 18 by serving it on their parent or guardian, or the person with whom the child resides. Notwithstanding this rule, a court may determine that service in a particular case on a child is effective.

Evidence in Court

In all courts, a child may give evidence on oath if they can understand the nature and consequences of the oath. Children are not under any disability in giving evidence before a court, and a judge cannot give a warning that evidence from children is unreliable. However, a judge can give a warning if a particular child's evidence may be unreliable and the reasons why (s165AEvidence Act 2001 (Tas)).

Sex and Relationships

Sexual Relationships

It is a crime for any person to have sexual intercourse with a person under 17 years of age. Consent is a defence in the following circumstances:

  • where the person is 15 years or older, the accused person is not more than five years older; or
  • where the person is 12 years or older, the accused person is not more than three years older.

Considering that there is a great deal of police and prosecution discretion in prosecuting a charge of sexual intercourse with a young person, the activities of teenagers amongst themselves are unlikely to come to the attention of the courts. It is where adults engage in sexual relations with children that most issues occur. There is also a defence if the accused person believed on reasonable grounds that the other person was 17 years or older (s124Criminal Code Act 1924 (Tas)). It is a crime for a parent to have sexual intercourse with, or sexually assault, their child, and for siblings to engage in sexual relations (s133, Criminal Code Act).

Marriage

The marriageable age for females and males is 18 years. Between the ages of 16 years and 18 years young people need the consent of their parents/guardians or the authorisation of a magistrate or judge in a state court to marry. The court needs to be satisfied that the circumstances are 'so exceptional and unusual as to justify the making of the order' (ss1112 and 13Marriage Act 1961 (Cth)). The court may dispense with the parents' consent in certain cases. The young person must produce a certificate showing that the young person has received marriage counselling.

Voting, Driving and Passports

Driving

There were changes in 2008 to the learner and provisional driver structures for novice drivers. All licensing processes take place through Service Tasmania. A young person can apply for a learner's permit (L1) for a car or motorcycle at the age of 15 years 11 months. This requires sitting a multiple choice test on road rules and knowledge. At 16 years and 3 months, a person can take an L2 practical driving assessment, and if they pass receive their L2 license. After this, it is a minimum of 9 months and 50 hours experience before booking and completing the P1 practical driving assessment. This means that the earliest a young person can obtain their P1 license is 17 years of age.

A learner's licence can only be obtained after successful completion of a written road law test, and (in the case of a learner's permit for a motor cycle) a training course. A learner's licence allows the person to drive a car or motorcycle on the road under supervision. Whilst driving:

  • a licensed driver must be seated beside the learner (in the case of a car);
  • 'L' plates must be displayed;
  • a speed of 80 km/h must not be exceeded for an L1 driver, or 10km below the fixed speed limit for L2;
  • the young person must have no alcohol in their blood; and
  • in the case of a motorcycle learner, they cannot ride between sunset and sunrise.

Once a driver has progressed to the provisional driver stage, there are two stages – P1 and P2. P1 licenses and P2 have the following requirements:

  • 'P' plates must be displayed;
  • A P1 license must not exceed a speed of 10 km/h below the fixed speed limit; and
  • the person must have no alcohol in their blood.

The P1 license must be held for 12 continuous months. If this happens, a driver can then pay for their P2 license. The P2 license has age dependent requirements. If a P2 license holder is 18 – 23 years of age, they must hold their P2 for a minimum of 2 years. 23 – 25 years of age requires holding the P2 until they are 25 or for 12 months, whichever is the longest. Those over 25 need to hold their P2 for 12 months before the are upgraded to a full license. This needs to be paid for at Service Tasmania, as with all other fees. See the Service Tasmania website for more information on novice drivers.

Voting

Voting becomes compulsory at 18 for Commonwealth and State Government elections. A person over the age of 18 may vote in local government elections if enrolled. You can access enrolment forms online.

Passports

Passports are regulated by Commonwealth law under the Australian Passports Act 2005 (Cth). Normally, an unmarried person under the age of 18 will not be issued a passport without the consent of:

  • each person entitled to custody, guardianship or access; or
  • each person who has residence, contact or specific issues orders in relation to the child (s11).

Exceptions to this are where a court has allowed the minor to leave Australia; where the physical or mental welfare of the person would be adversely affected if the passport were not granted; or where the passport is urgently required because of family crisis, and a guardian or custodian cannot be contacted.

Disability

What is Disability?

The Disability Services Act 2011 (Tas) provides a definition of disability. This requires:

  • cognitive, intellectual, psychiatric, sensory or physical impairment, or a combination of these
  • permanence of the condition, or likelihood of permanence
  • a substantial restriction in the capacity of the person to carry out a profession, business or occupation, or participate in social or cultural life
  • a need for continuing significant support services
  • can be of a chronic episodic nature, rather than consistently ongoing. Schizophrenic episodes may qualify as being of a chronic episodic nature.

Disabilities are many and various. A person in a wheelchair is a person with a disability. A person with autism is a person with a disability. A person with muscular dystrophy is a person with a disability. A person with a disability can be of higher than average intelligence, they can be sportspeople and prominent members of the community. Having a disability does not prohibit a fulfilling engagement with life and the world. In fact, people with disabilities are no different than you or I. Everyone has something they are able to do, and something they are unable to do – everyone has abilities and disabilities.

A person with a disability is entitled to respect and regard. Some people with disabilities will be more vulnerable to others, because of their cognitive or intellectual impairment. Much of this chapter is directed toward the law surrounding these types of disability.

Government Departments and Services

The Department of Health and Human Services

The DHHS has a range of services, with information accessible on their website. The main Act under which the DHHS functions is the Disability Services Act 2011. This Act gives the DHHS powers to intervene to protect the rights of intellectually disabled people. It has the power of licensing training centres (that is, workshops) and residential centres (for example, boarding houses) for disabled people. The DHHS can insist on conditions being improved and can withdraw licences if this is not done.

The range of services the DHHS provides include: community access services, information and referral services, advocacy services, accommodation support services, individual support programs and respite services. See the website for more details.

DHHS officials can, with the written permission of the Secretary of the DHHS, enter and inspect specialist disability service provider premises in order to assess compliance with standards set out on the Disability Services Act. The Department has a general contact site where queries and complaints can be directed if there is an issue with services provided.

The Ombudsman

The Ombudsman can investigate the administrative conduct of government departments and prescribed and statutory authorities at both state and federal level, as well as local councils. See the Ombudsman section. Otherwise you can see the Ombudsman website, which gives step-by-step instructions on making a complaint.

Access to Information

There is no law saying that everyone is legally entitled to all information about themselves, but everyone should have access to information about themselves that affects their well-being. It is proper to ask for this information, and to keep asking until an answer is given. If the answer is given in terms that the person doesn’t understand, they should ask to have it explained more simply. In many cases, the information they seek will be provided without any legal obligation.

Information contained in files and documents held by Commonwealth government departments and authorities is available under the Commonwealth Freedom of Information Act 1982. Information contained in files and documents held by Tasmanian government departments and authorities is available under the Tasmanian Right to Information Act 2009. There is also the Tasmanian Personal Information Protection Act 2004. This Act applies only as far as it is not inconsistent with the Right to Information Act 2009.

There is a problem associated with the large amounts of personal information held by medical and education authorities, health professionals, employers and government departments. Sometimes such information is disclosed without the knowledge or consent of the person concerned, causing prejudice or embarrassment to that person. Damage from such disclosures is even greater where the information is out of date, misleading or incomplete. There is now extensive protection of information held by Commonwealth government and other agencies under Commonwealth privacy legislation. See Privacy and Right to/Freedom of Information.

Work and Domestic Life

Care Givers

‘Care givers’ here refers to all people who have regular ‘professional’ dealings with disabled people, including supervisors at sheltered workshops and activity therapy centres, staff at residences or nursing homes, and other disability ‘professionals’. In terms of legal rights and liabilities, there is no difference between people employed by Federal or State Governments and people employed in private institutions.

Intentional Interference

The legal rights of disabled people to live free from physical force, intimidation, coercion and imprisonment are the same as for all other citizens. An assault does not necessarily require physical contact. It may be committed by intending to arouse fear of immediate physical contact in another person. For example, a care giver pointing a knife at a person with a disability with the intention of arousing fear that the knife will be used, commits an assault.

A battery is committed by intentionally bringing about a harmful or offensive contact with another person without that person's fully informed consent. The person need not even be conscious of the interference at the time of the battery. For example, a care giver who takes a blood sample from a person with a disability without that person’s fully informed consent commits a battery. This would be the case even if the person with a disability was asleep or drugged.

Wrongful imprisonment is a civil action that protects a person's freedom from physical restraint. A person may be wrongfully imprisoned if they submit to imprisonment because of the threat of force. A care giver who locks a person with a disability in a room, commits wrongful imprisonment. The person with a disability need not even know that they had been locked in for the wrong to be committed. Accordingly, a care giver who locks the bedroom door of a sleeping person with a disability commits a wrongful imprisonment.

This area of the law raises the question of the sometimes used practice of placing a person with a disability in a locked room to ‘cool down’ or as a form of behaviour management. This practice is a type of ‘time out’. Under the current law, the locked room practice undoubtedly exposes the care giver to civil liability. However, if the locked room is used in a carefully considered and supervised way, the likelihood of anyone being sued would be very slight.

Defences to intentional wrongs

There are several defences to the charge of an intentional wrong. They include: consent; self defence; reasonable discipline; and necessity.

A person may give informed consent to intentional physical interferences. In the case of a blood sample taken from a person with a disability, that person must be aware of the basic nature of the procedure. If the care giver obtains informed consent for one procedure, this would not be a defence if the care giver then performed a more extensive procedure.

A person may use reasonable force in self-defence (that is, in defending themselves from attack). What force will be reasonable depends on the nature of the attack. A care giver who is being punched would normally be justified in punching and wrestling with a person with a disability to subdue the attack. If the particular person with a disability had a history of violence, the care giver may be justified in using greater force. The weapons used by the attacker (for example, a knife) are relevant in deciding what an appropriate response would be.

A person may also use reasonable force in coming to the defence of a third person. If a particular person with a disability attacks another person with a disability, a care giver would be justified, using the same considerations as above (that is, the history of the particular attacker, types of weapons, and so on) in intervening in the defence of a third person.

A parent (or a person standing in the position of a parent) can enforce reasonable discipline against a child (that is, by physical force or confinement). The force used must not be excessive. But it seems clear that the current law does not recognise a power of reasonable discipline over an adult, except where it involves prevention of an attack on others or themselves.

A person may interfere with the personal or property interests of another person in the case of necessity (for example, in order to avert an imminent danger). The danger must be a serious danger. A care giver would be justified in restraining a person with a disability who was clearly intending to throw themselves under a moving car. Similarly, a care giver in a sheltered workshop would be justified in restraining a person who intended to go too near dangerous machinery.

Negligence

If a person owes a 'duty of care' to another, and fails in that duty so that damage is suffered as a result, they can be sued for negligence. A care giver will undoubtedly owe a duty to be careful to disabled people with whom they have a professional relationship, but the most important question for care givers is the precise requirements of that duty. The usual requirements of a duty of care are that a person should exercise the same care as a hypothetical reasonable person. That standard can change over time, as community values change. If a person undertakes work that calls for special skills, such as nursing, then they must measure up to the standard of proficiency that is required in that profession which will be higher than that expected of the reasonable person.

It is unclear what level of duty of care is required of care givers without special skills. It may be that such care givers owe a duty to people within their responsibility only marginally higher than the ordinary duty of the 'reasonable' person. As care givers become better trained and their job roles more closely defined, it can be expected that the required standard of care will rise.

Following are some examples of situations in which care givers commonly find themselves.

Administering medication to a person with a disability

Even when a care giver has no medical training, they may be liable in one of two ways. Firstly, if the administration of the medication is simple, a reasonable person would take care to administer the correct amount, or they may be liable. Secondly, if the administration is complex, a reasonable person would ensure that a doctor or some other medically qualified person administered the medication. However, it may be that, in an emergency, a care giver would be acting reasonably in attempting to administer the medication.

Helping a person with a disability

When helping a person with a disability, for instance, to bathe, if the care giver didn't check the water temperature, they could be liable to a person with a disability who was badly scalded. If the care giver placed a person with a disability in an extremely hot bath, the care giver could be liable for damage caused to the person with a disability by a heart attack, even though the person with a disability had an abnormally weak heart.

The Duty to Physically Restrain Others

A particular problem for care givers is whether they owe a duty of care to third parties who may be injured by acts of a person with a disability. For example, a care giver may know that a particular person with a disability, if allowed to go shopping on their own, will cause damage to the property of shop owners. Does the care giver owe a duty to the shop owner to prevent the person with a disability from going shopping on their own? A similar question is whether care givers have a duty to stop intellectually disabled people from harming themselves.

The question is a complicated one, and two sorts of duty should be distinguished, that is, a general duty of care, and a specific duty to physically restrain a person with a disability. For example, a care giver in a group home who knows that a person with a disability in the group is likely to bite strangers has a general duty to the person with a disability and to third parties to plan any excursion carefully to minimise the risk of injury. However if the care giver has carefully planned an excursion, and a third party has unexpectedly wandered close to the group, the specific duty of the care giver to restrain the person with a disability is unclear.

The general principle is probably that in the absence of a right of control, the care giver will not have a duty to restrain an intellectually person with a disability, but this is not a settled point. Care givers should therefore check with their employer to ensure that they are adequately insured against any potential liability.

Who Pays for Wrongs?

Where a person suffers because of negligence or intentional interference they can sue for damages. The general principle is that people are responsible for their own civil wrongs. However, employers are vicariously liable for the wrongs committed by their employees in the ordinary course of carrying on their job. Most care givers will be employees.

If only the employer is sued then that person will have to pay all of the damages. If both the employer and the employee are sued, then the court will divide the liability for damages between them. If only the employee is sued, then the employee can have the employer made a party to the case, and again the court will divide liability for damages between them.

Accordingly, individual care givers, if sued by disabled people and held to be liable, will personally have to pay a percentage of the damages due to that person with a disability. While it is true many lawyers would advise clients to sue only the employer, it may be that a care giver can be finally liable. Accordingly, it is crucial for care givers to make sure that their employer has adequate insurance to cover liability for civil wrongs.

Housing

This section is concerned with residential facilities such as boarding houses, group homes and nursing homes. There is usually no difference in the legal rights of people in government-controlled or in private institutions.

Licensing of Residential Facilities

General requirements (for example, fire standards or hygiene) are administered by local government and semi-government authorities. There are general standards for residential facilities of all kinds.

No specific legislation governing residential facilities is in force at present, however note should be made of the Disability Services Act 2011, which deals with the provision of services for the disabled, including accommodation, and sets the standards for the provision of those services. Complaints can be directed to the DHHS or the Ombudsman.

Renting

Problems often arise for disabled people in boarding houses, hostels, and other residences when landlords impose large rent increases or attempt to evict residents. Disabled people often have a licence and not a lease. This is normally because they will not have a right to exclusive possession of the premises (for example, someone else, usually the proprietor, can enter their room/flat at any time). A licence does not normally protect a tenant's rights to the same extent as a lease.

Accidents and Injuries

People injured in residential facilities may be able to take action against the persons or bodies responsible for the premises if there has been a breach of duty of care. See Accidents.

Personal Relationships

A person with an intellectual disability has the same right as anyone else to have friendships, sexual relationships, to live with someone or to marry and have children. The only qualification of this is that which arises from any guardianship order which may be enforced in relation to the person.

If a person with an intellectual disability is over the legal age of consent they can decide to have sexual relationships. A parent cannot legally prevent a child who is over the age of consent from having sexual relationships.

Marriage and de facto relationships

Any person is free to marry provided they are old enough and they generally understand the nature and effect of the marriage ceremony. There is no legal reason why a person with an intellectual disability may not marry. They can also register a significant relationship, and qualify as being in a de facto relationship.

The Family Law Act 1975 (Cth) covers married relationships, and de facto relationships their breakdown and the welfare of the children of the marriage. There is no presumption in the law that a person with a disability is an unfit parent, although in custody matters a disabled parent will have a much better chance of success if they can show an awareness of the needs of the child, and can support the child either by themselves or with assistance from friends, family, or government agencies.

Family planning

Having children can impose severe financial and emotional strain upon individuals or a relationship. Serious problems often arise for people with intellectual disabilities when they want to have children. Other people, including their parents and authorities, may think they should not have children. Contraception can be used to plan a family. The choice to use contraception and the form of contraception used, is up to the individual concerned.

Both women and men can undergo surgery for sterilisation. The operation is a more complicated one for women than for men. A person with an intellectual disability should be given the opportunity to be as fully involved in the decision-making as their circumstances permit.

Where an adult is legally incapable of making the decision, a sterilisation on non-therapeutic grounds, such as where there are problems of menstrual management or hygiene can only be performed with the approval of the Guardianship and Administration Board. This is because sterilisation falls into the category of ‘special treatment’ under the Guardianship and Administration Act 1995 in respect of which ‘persons responsible’, who can normally give substitute consent, lack capacity to give consent. Non-therapeutic grounds for sterilisation are distinct from medically indicated surgery necessitated by the presence of disease, such as cancer.

In the case of a child with a disability, authorisation must be sought from the Family Court before a non-therapeutic sterilisation may proceed as parents lack legal authority to give consent to such a substantial and irreversible procedure.

Adoption

The consent of the parent(s) is normally required before the court can make an adoption order concerning the child of a person with an intellectual disability. The court will refuse to make an order where there is not proper consent. This is the case when the consent is obtained by fraud, duress or improper means, or the person giving consent did not fully understand what they were doing.

The court may dispense with consent where the parent is incapable of properly considering the question because of their mental or physical condition. The court will require extensive information on the circumstances of the child before making the order. Where adequate arrangements have been made for the child, for example where the child is being cared for by the grandparents or other people with whom the child has a good relationship, the court is unlikely to interfere.

Marion’s Case – sterilisation

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery were within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood.

The impact of this case has been that parents can not provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

Disability and the Law

The Protection of Rights

People with a disability have many of the same rights as everyone else in our society. They can use the same legal and non-legal remedies if those rights are infringed. They (or their representatives) can take action in the usual way to protect their rights (for example, for privacy, sexual relationships, and marriage). They can also use the provisions of anti-discrimination laws to enforce their rights to housing, education, and employment. However, there are differences in their legal status, and the means by which they access legal remedies or other forms of advocacy to have their issues heard. For example, they are often not tenants entitled to exclusive possession of premises, but licensees, which limits their rights of exclusion.

Legal Action and Help

Where the rights of disabled people have been infringed, court action can be commenced to enforce them. Disputes can also be lodged with the Australian Human Rights Commissioner or the Tasmanian Anti-Discrimination Commissioner. Usually, another person referred to as a ‘next friend’ acts on their behalf during the court proceedings. This would normally be a relative or friend of the person with a disability. Where court proceedings are involved, it is important to choose a solicitor who is familiar with the area of intellectual disability.

Legal aid may be available to intellectually disabled people in the same way as to other people. They may be eligible for assistance from the Legal Aid Commission depending on the nature of the legal matter and whether the person meets other eligibility criteria. Community legal centres have a particular interest in the legal problems of intellectually disabled people and provide advice and referral.

Anti-Discrimination Law

Anti-discrimination law aims to ensure that all people have an equal opportunity to get the things in life they need — a place to live, a job, health care, and a public education. Equal opportunity will often involve positive discrimination, which is a means of helping to level the playing field, and ensure equal opportunity through enabling people who are identified in legislation as being prone to discrimination. This includes intellectually disabled people.

Anti-discrimination law does not give a person with an intellectual disability (or anyone else) any special rights over other people. Rather, it tries to ensure that each person will have equal access to these things, and it makes it unlawful to discriminate by providing less favourable treatment because of disability.

Commonwealth legislation

The Commonwealth Government has enacted legislation dealing with discrimination generally. The Australian Human Rights Commission Act 1986 (Cth), which was previously the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Disability Discrimination Act 1992. These Acts are also discussed in ‘Discrimination’.

Tasmanian legislation

The Anti-Discrimination Act 1998 and the Disability Services Act 2011 are central to the protection of the rights of intellectually disabled people in Tasmania. Sections 15 and 16 of the Anti-Discrimination Act prohibit indirect discrimination and discrimination on the ground of impairment. Persons who are employed by the State Government of Tasmania are covered by the Tasmanian State Service Act 2000.

The Disability Services Act covers the provision of funding for specialist disability services, and for the inspection and regulation of these services. This is particularly important in terms of discrimination, because it goes to maintaining standards of care and services for a vulnerable section of the community. ‘Specialist disability services’ covers accommodation all the way through to education, training, recreation, therapy, transport. These are many of the services provided to people with disabilities. The Act sets out the principles and standards that are to govern both the administration of the Act, and the assessment of specialist disability services providers. This includes respect for people with disabilities, working toward their best interests, and working toward the opportunity for full and effective participation and inclusion in society.

Consumer Protection

Where a person with an intellectual disability has made an unwise contract or gift, the law can assist in a number of ways.

Incapacity

A person who lacks general understanding of the nature and effect of a contract or gift is said by the law to have ‘incapacity’. In deciding whether incapacity applies to a particular transaction, attention is paid to the level of understanding of the person, the complexity of the transaction and the value of the property involved. The more complex the transaction and higher the value of the properties, the greater is the understanding required.

Incapacity has no effect on contracts for purchase of ‘necessaries’ providing only a reasonable price was paid. Necessaries are things a person needs to maintain a reasonable lifestyle (for example, food, clothing, medical treatment, rent). Any other contract may be overturned by a person with a disability if:

  • the person lacked capacity for the transaction;
  • the other person involved realised or ought to have realised that the person lacked capacity;
  • the person with a disability can give back at least most of the benefits they have received under the contract (for example, if the contract was for purchase of a television, it is necessary that the television can be given back in much the same condition as when it was purchased); and
  • property that the person with a disability wants back has not been sold to someone else who is not aware of the person with a disability's incapacity.

A gift may be overturned if some of the above conditions apply. It is not necessary that the recipient of the gift ought to have realised that incapacity applied. Sometimes a person with a disability will enter a contract because (or partly because) of a misleading statement. This is called misrepresentation (for example, a car salesperson may say ‘this car has only done 20,000 kilometres’ when the car has in fact done 80,000).

Sometimes a misrepresentation is fraudulent (that is, intentionally false or made without caring whether it is false) in which case the person with a disability can normally overturn the contract and sue for damages to recover any loss suffered. If a misrepresentation is made innocently, the contract can still normally be overturned, but the person with a disability cannot usually sue for damages.

The court can also overturn transactions entered into following ‘undue influence’ or ‘unconscionable bargaining’. There is a ‘presumption’ of undue influence where:

  • a transaction is between people whose relationships the law recognises as giving rise to risk of undue influence, for example, doctor and patient, parent and child;
  • a person with a disability gains much less than they give in a transaction with a person in whom the person with a disability has great trust and confidence, for example, if a person with a disability gives their television to a house-parent whom the person with a disability depends on for advice.

Where this presumption of undue influence arises, it is then up to the person without a disability to prove that the person with a disability made an informed and independent decision to enter the transaction. If the person with a disability received independent advice, this would be easier to prove.

Consumer Protection Legislation

The Competition and Consumer Act 2010 applies to all those who provide goods or services. A person who believes that they have been the victim of misrepresentation or unconscionable conduct should seek legal aid or contact a community legal service.

Other Ways to Exercise Rights

Other avenues are available to people with disabilities (or a friend or relative) to exercise their rights.

  • The media: current affairs shows are keen to expose consumer rip-offs, especially where someone such as a person with an intellectual disability has been taken advantage of;
  • The Office of Consumer Affairs will investigate complaints about fraudulent or unfair commercial practices and, although Consumer Affairs cannot force a trader to remedy a complaint, most traders do not wish to be off-side with it, such that the result is often full or partial satisfaction for the consumer;
  • The civil division of the Magistrates Court or the Small Claims Court: these courts can deal with a dispute involving a contract between a consumer and a trader for the supply of goods or services (for example, where a person has bought a washing machine which is defective, or where a person has their car repaired but is not happy with the quality of the work).  The Small Claims Court can only deal with disputes involving less than $3,000. It can order that money be repaid or that works be carried out.

Complaints

Complaints about an infringement of rights can be taken to a local Member of Parliament. It is their job to follow up a complaint. When approaching a Member of Parliament it is best to:

  • see them in person — make an appointment;
  • present a written account of complaints;
  • take someone along for support.

Complaints and representations to Members of Parliament and the relevant Minister can be effective but must be followed up. Representations by action groups, or collective representation for common complaints, may also be an effective way of drawing attention to particular problems.

Complaints can also be directed to the Ombudsman.

The Media

The media can be a useful tool in bringing abuses of the rights of disabled people to public attention. However individual person with a disability should take care as the media can also abuse their rights.

Negotiation

Very often problems can be sorted out satisfactorily through negotiation before legal action is taken. One of the problems in negotiation for disabled people and their advocates, is that they often feel themselves to be powerless and can be intimidated by an organisation or by ‘able’ people.

In many cases negotiation using a third person (for example, a lawyer) adds balance to the negotiation. This also adds credibility to the person with a disability's case.

Citizen Advocacy

A ‘citizen advocate’ is an ordinary member of the community who becomes a long-term friend and adviser for a person with an intellectual disability. The advocate can help the person with an intellectual disability in making a complaint, for example, by complaining to the Ombudsman on behalf of a person with a disability.

Ideally, most citizen advocates would be trained by and registered with a local citizen advocacy office. However many people become citizen advocates simply by forming a friendship with a person with a disability.

Citizen advocates have no formal legal status. However, Government departments and other organisations are developing greater recognition of the value of citizen advocacy and are often willing to give advocates the same sort of informal recognition that they give to the next-of-kin of disabled people.

The Criminal Justice System

A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person accused of a crime, or merely as a witness. While the former are the two main areas of concern, some of the same problems may occur in all cases. For example, does the particular person with a disability have the legal capacity to give evidence?

As a Victim of Crime

According to the law, a person with an intellectual disability who is the victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. There are some understandable reasons for this, for example even where a person with an intellectual disability does manage to contact the police, or someone else does so on their behalf, the police may decide not to prosecute because they feel that the person with a disability will not be a reliable witness.

A person can give evidence in court as long as they generally understand that they have promised to tell the truth (and what that means) and that telling a lie is against the law. Even if the person is permitted to give evidence, the judge or jury may not see that evidence as being as important as other evidence because they believe the person's understanding is insufficient.

Accused of a Crime

Intellectually disabled people accused of committing crimes are particularly vulnerable, because their special needs are often not met, and because the legal system tends to discriminate against the less articulate. Most criminal offences require an intention to do an unlawful act, or recklessness as to whether or not it was done. Some intellectually disabled people may be so disabled as to be incapable of forming an intention to commit a crime.

The defence most commonly thought of in relation to intellectually disabled people is insanity. Insanity is a complete defence in respect of crime involving a mental element. Someone who is found not guilty in this way may be detained ‘at the Governor's pleasure’ in a gaol or institution. They are released when the Governor chooses and often serve longer 'sentences' than people who are convicted and sentenced to gaol for the offence.

The first contact an accused is likely to have with the criminal justice system is with the police. Depending on police attitudes to the accused and their awareness of the person's disability, the police may exercise their discretion and with minor offences give a warning rather than charge someone.

Police in Tasmania receive only limited training in regard to 'mentally disturbed' people and most of this is with reference to the Mental Health Act and mentally ill people, not with intellectually disabled people. Thus it is particularly important for intellectually disabled people to be accompanied and assisted when being questioned by police officers.

There are guidelines in the Police Commissioner's Instructions to Police which, while they are not legally enforceable, police should follow. One of these is that any person who is suspected of being of ‘feeble understanding’ should, if reasonably practicable, be questioned by police in the presence of a friend, parent, guardian or other responsible person not associated with the enquiry. Another states that such ‘special measures as are practicable and appropriate’ should be taken to ensure a fair interrogation. Where there is any doubt about the fairness of an interrogation of a person with a disability or the voluntariness of a confession, an application should be made to the Court to exclude such evidence. Confessions made to police by intellectually disabled people are particularly unreliable often because of the person with a disability’s desire to please.

Fitness to Plead and to Stand Trial

Every accused person is asked to plead guilty or not guilty. Silence is assumed to be a statement of not guilty. The court must be satisfied that an accused person is fit to plead, that is, that they understand the act of which they have been accused and can indicate a response. A person who is held unfit to plead may still be detained in custody (in gaol or a mental hospital) by the Minister, the Governor or by the Court.

In theory, fitness to stand trial is different to fitness to plead, and involves the accused person being able to comprehend what is going on generally in court. They must be able to understand the significance of telling the truth to the court, the nature of the charge and be able to instruct their solicitor. Again, someone considered unfit to stand trial can be remanded in custody.

Alternatives to Imprisonment

It is important to realise that even when a person with an intellectual disability has been convicted of a serious offence, there are alternatives to imprisonment. A solicitor who is aware of the person's disability should attempt to establish the person's ability and willingness to comply with any conditions which might be imposed if they are placed, for example, on a good behaviour bond. Awareness of the resources and support services available in the community is very important here.

While it is hoped that court officials will acquaint themselves with this information, it is ultimately up to the solicitor, citizen advocate, or any other friend to acquaint the magistrate or judge with what support is available for the particular offender. Failure to arrange ongoing assistance and support, and even supervision, will almost inevitably result in the person's reappearance one day in the criminal legal system.

Sheltered Workshops

There is no special law setting out and protecting the rights of workers in sheltered workshops except for licensing under the Disability Services Act. Sheltered workshops are also classified as training centres under this Act. The relevant law is the general law of employment which in Australia consists of industrial awards, the common law, and legislation.

Industrial awards are legally binding orders which set minimum standards for terms and conditions of work (for example, wages, sick pay entitlements and so on). There are currently no special awards for workers in sheltered workshops. However provision has been made in most Tasmanian awards to incorporate the Commonwealth initiative of the ‘Supported Wage System’ run through the Commonwealth Department of Family and Community Services. This allows for a person with a disability to be paid at a reduced rate following assessment of that person’s capacity for work.

The Common Law

The common law position of workers in sheltered workshops is unclear. Generally it has been assumed that they are not ‘employees’ within the common law definition (that is, someone with a contract of employment). While many people working in sheltered workshops could arguably come within the definition of ‘employee’, there has been no reported case on this point and common law protection is uncertain.

Legislation

Legislation also provides benefits for workers. The most significant Acts are the Industrial Relations Act 1984 (Tas), the  Workers Rehabilitation and Compensation Act 1988 (Tas), the Long Service Leave Act 1976 (Tas), and the Workplace Health and Safety Act 1995 (Tas). South Australia actually has an Intellectual Disability Services Award, however Tasmania does not have the same kind of legislative framework for intellectually disabled people. The only Act that makes explicit reference to people with disabilities is the Industrial Relations Act 1984.

Under the Industrial Relations Act, sheltered workshops are not required to meet minimum award rate requirements (s80). Workshops that also classify as religious or charitable institutions, or training centres may fall under the Disability Services Act, and so the standards under which people with disabilities carry out work will be covered by that Act. Section 79 provides a scheme means by which employees can receive payment of below award rates. An employer must seek authority to do so from the Tasmanian Industrial Commission. The minimum rate of pay will be established by the licence.

The Workplace Health and Safety Act defines workplaces as ‘any premises or place where an employee, contractor or self-employed person is or was employed or engaged in industry, and includes part of a workplace’. Sheltered workshops could fall under the definition of a workplace, and must comply with the same health and safety requirements as other industrial or shop premises under the Workplace Health and Safety Act. If not, the Disability Services Act provides positive standards for workshops that exclude, by implication, unsafe work standards.

The Workers Rehabilitation and Compensation Actsection 91 provides for the payment of compensation to people who are under a legal disability, which includes people with intellectual disability. However, whether a person with an intellectual disability in a sheltered workshop qualifies as an employee under this Act is unclear.

The Long Service Leave Act grants all workers two months paid leave after ten years continuous service (this can sometimes be with different employers) and one month paid leave for every five years work after that. There has been no reported case deciding whether sheltered workshops are bound to provide this benefit.

Issues

The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, the variety of work done and the range of work arrangements (which vary from workshop to workshop and even more from worker to worker) makes classification in any of the usual ways difficult. A test case would resolve some of the areas of uncertainty.

In the meantime, individuals can arrange their own protective work arrangements. In the absence of award or specific legislative protection, and while the common law position remains unclear, the legal situation of each worker is determined by the negotiated terms of work. Workers in sheltered workshops should be assisted (ideally in a group but, if necessary, individually) to decide and set down the terms upon which they will work (that is, draw up ‘standard form’ contracts). Some intellectually disabled workers with assistance are capable of this type of organisation.

If it appears to a court that both parties, employer and workers, intended these arrangements to be binding, then the court will enforce the agreement, whether it is technically a contract of employment or not.

Regardless of a person with a disability's employment status, certain rights in the workplace are no different to anywhere else. For example, sexual harassment in a sheltered workshop is unlawful.

Wills

Providing for the needs of a person with a disability

It is important for everyone to make a will. This particularly applies if a person has an intellectually disabled child who is unable to look after their own property. A will can be made flexible enough to allow for improvements in a person with a disability's ability.

Where there is no will, a disabled child will be entitled to a share of the parent's estate (unless the estate is small and the person dies leaving a spouse), but where there is no specific provision in a will the law does not have the flexibility to ensure that the share is used to the person with a disability's maximum benefit. This means that it is very important to ensure that the will is clear in setting out the interests of that person.

Providing for a Person with a Disability

There are no hard and fast rules about making adequate provision for disabled children, but parents should be wary of only making a small provision for their disabled child. Parents sometimes do this because they feel that their disabled child is permanently placed in an institution or other residential facility, and that the child has modest needs. It is impossible to predict what the needs of the person with a disability will be ten or thirty years after the parents die (for example, the residential facility may have closed down or it may have had to put its fees up to well above the pension level).

Parents sometimes give all of their property to their non-disabled children and rely on them to look after their disabled brother or sister. One danger of this approach is that the non-disabled children may die first, perhaps many years before the person with a disability. Where parents do make much greater provision for one child than another the Supreme Court can vary the will under section 3 of the Testators Family Maintenance Act 1912 (Tas).

It is not normally desirable to leave property outright to an person with an intellectual disability, although this will not always be the case. Some disabled people have enough understanding to look after their property and to make wills themselves. The make-up of the estate, the person's nature and their level of disability should be considered in each situation. It is possible to give some property outright, with the bulk of property being given on trust.

Where a person with a disability is ‘absolutely entitled’ to property from a parent's estate because there is no will, or there is a will but it contains an outright gift to the person with a disability rather than setting up a trust, the property is handed to the person with a disability providing they have enough understanding to look after the property. If the person with a disability does not have that understanding then the person who has administered the parent's estate (the executors or, if there was no will, the administrator) is not allowed to hand the property over to the person with a disability. In these circumstances the person with a disability may have an administrator appointed under the Guardianship and Administration Act 1995 (Tas) who has legal authority to administer that person’s estate. Application can be made to the Guardianship and Administration Board for an administrator to be appointed.

Trusts

The alternative to leaving property outright to a person with a disability is to set up a trust under the will so that the property can be used for the benefit of the person with a disability. A trust basically amounts to appointing people who are called ‘trustees’ to use property in the way and for the purposes specified in the will.

For example, if parents only have one child, and that child is disabled, the parents could leave all their property to be used by trustees for the benefit of the disabled child. The will should say what happens to whatever property is left when the person with a disability dies. Income of a trust under a will is taxable. This means that it may be better to use money to buy something which can be used by the person with a disability (for example, a car or somewhere to live) rather than have it earn interest.

If parents have three children and only one of them is disabled, parents could, for example, leave one-third of their property to each of the non-disabled children, and the other third could be left in trust to be used for the benefit of the disabled child.

The will can be very specific about how much the trustees have to spend on the person with a disability, or it can give the trustees a wide discretion. Parents normally decide to give trustees a very wide discretion to pay to (or use for the benefit of) the person with a disability as much of the income of the trust as the trustees see fit. A similar discretion is normally also given to use the actual property which is being held in trust. Reasons for giving these broad discretions include:

  • they create maximum flexibility for the trustees to react to the changing needs and circumstances of the person with a disability;
  • they allow the trustees to remove or at least minimise the effect of the will on the person with a disability's social security benefits.

A disadvantage of giving broad discretions is that it limits what can be done if the person with a disability, or a friend of the person with a disability, does not feel that the trustees are fairly treating the person with a disability. This emphasises the importance of choosing suitable trustees.

The Trustees

The trustees will normally be the same people as the executors named in the will. The choice of trustees is obviously very important because of the discretion they are given and the length of time that they will have to administer the estate. Qualities to look for in trustees include:

  • youth — they may have to act for decades;
  • business sense — knowledge of investments, income tax and social security benefits;
  • independence from the family situation — trustees often will need to make decisions about how property is to be divided between the will-maker's children;
  • continued interest in the person with a disability — an awareness of their needs and desires and of advances in the methods of helping disabled people.

It is normally best not to appoint non-disabled children as the only trustees. This is because parents normally say in their wills that whatever is left over of the person with a disability's share when that person dies goes to the non-disabled children or their families. This places the non-disabled children in a difficult situation if they are the only trustees, because they know that whatever they do not spend on the person with a disability they end up getting themselves.

It is also better to have more than one trustee. They might include a non-disabled child, an accountant or solicitor or trustee company, an ‘advocate’ of the person with a disability and a friend of the family who takes an interest in the person with a disability.

If parents have no suitable people to appoint, it is best to appoint the Public Trustee or a private trustee companies. The advantages of these organisations are that they should continue to exist indefinitely, and they are cautious and sensible about investing money. Their disadvantage is that there are costs associated with their administration of the estate, and their involvement can be impersonal. The way to at least partially overcome this latter disadvantage is to include in the will a direction saying that the trustees must consult with, for example, the person with a disability and the persons or organisations providing day-to-day care for the person with a disability.

If one trustee dies, it is normally necessary for a new one to be appointed. Parents can set out in the will how this is to be done if they wish. Otherwise the Trustee Act provides a mechanism for this.

The remuneration to be received by the trustees should be arranged with the proposed trustees. It may be a percentage commission, a gift of a specified sum or the normal fees for an accountant or solicitor. Trustee companies normally charge a commission based on the initial value of the estate and a percentage of all income passing through the estate. If nothing is said in the will about remuneration, then the trustees can apply to the Supreme Court for a grant of commission.

The trustee's powers will generally be wide. It is very important that there be power to invest in some capital gain producing assets. In framing powers of investment potential, housing options should particularly be considered.

Housing for Disabled Children

It is obviously a matter of great concern to parents to be able to provide a good standard of housing for their disabled child on a long term basis.

If parents are in a position to leave their house to be lived in by the person with a disability this can be done through a trust in the will, providing the trustees can organise suitable backup facilities. For example, if parents have a three bedroom house it could be lived in by their disabled child and two boarders and the rent from the boarders could pay for the backup facilities. Sometimes a live-in houseparent might be necessary. The backup facilities might be available through the Department of Health and Human Services or local non-government organisations.

If parents are not sure whether suitable backup facilities will be available, they can direct their trustees to investigate the situation. If the facilities prove not to be available, the trustees can then be empowered to sell the house and hold the proceeds in trust for the person with a disability's benefit.

Sometimes parents might be able to give an organisation the use of a house in return for a promise to run the house as a group home for the disabled child and others. In this situation the trustees could be given power to terminate the arrangement if the organisation did not keep its side of the bargain.

Not too many parents would be able to leave a house in the way set out in the previous paragraphs. However, there are ways that such parents or their trustees could band together and buy a house to be occupied by the disabled child of each of them.

One way this could be done is through setting up a company similar to companies that own blocks of 'company title' home units. Each lot of trustees would own a share in the company and the share would entitle the person with a disability to live in the house. After the person with a disability died or moved out the trustees would sell their share to someone else.

Testamentary Guardians

Testamentary guardians are people appointed in the will to take over the parent's role as guardians of their children. However, as with parents, their powers only apply until the person with a disability is 18. There is no way that a parent can appoint a guardian for the rest of the person with a disability's life. However, just as many parents often continue to exercise a parental role in an informal way after a person with a disability reaches 18, so there will sometimes be someone who will fill this role when the parents die. Parents could in their wills declare it to be their wish that a named person do so.

Centrelink Payments

The disability support pension is affected by a person with a disability’s income. Income is defined in the Social Security Act 1991 (Cth) as an income amount earned, derived or received by the person for the person's own use or benefit. This would include someone who received benefit from a trust.

Rules about income-stream products such as annuities are complex and constantly changing. Parents or trustees should see a Centrelink financial adviser.

Property Not Governed by a Will

It is important to remember that not all property will always be covered by a will. For example, life insurance policies and superannuation benefits often go to a person specified in the policy or specified to the superannuation fund. If parents want these sorts of things to be covered by a trust, they need to make suitable arrangements.

Where a will-maker wishes to benefit a person with a disability, it is very important to have the will drawn up by a solicitor (or the Public Trustee or a trustee company if the parents want a trustee). Wills setting up trusts for disabled people are more complicated than most wills. Because of this, the will-maker should check that the solicitor is familiar with this area of the law.

Rights of a Beneficiary

A ‘beneficiary’ is a person who receives a gift or any other benefit under a will. An intellectually disabled beneficiary might:

  • receive a straight gift of money or other property;
  • be allowed to live in the family home for as long as they want;
  • be entitled to the income earned by a ‘Trust Fund’ set up under the will.

The most common situation is where the executors appointed in the will have a wide discretion about how much money they will pay to or use for the benefit of the intellectually disabled beneficiary. The job of the ‘executors’ or ‘trustees’ is to deal with the deceased person's property as spelt out in the will.

An intellectually disabled beneficiary has the same rights as any other beneficiary. These include rights to:

  • take executors to court if they have failed to comply with the will;
  • reimbursement where executors have used money for purposes not allowed in the will or where they have lost estate property through negligence;
  • ask the court to remove executors who are not doing their job properly;
  • ask the Registrar of the Probate Division of the Supreme Court to force executors to provide information about property income and expenditure.

Example

Jane is an intellectually disabled woman whose parents die leaving all of their estate to Jane's brother and sister. Jane (or someone on her behalf) applies to the court for a variation of the will. The court would probably order that Jane receive a good sized share of the estate. How big a share she would receive would depend on all of the circumstances. Sometimes she may get less than her brother and sister, sometimes more.

If Jane's parents set up a $10,000 trust fund for her but gave the rest of their $200,000 estate to Jane's brother and sister, the court would probably order that Jane's share be increased.

Alternatively, Jane's parents may have divided their estate equally between the three children and appointed trustees to invest Jane's share and to use the income as they see fit. If Jane is capable of living in, and wants to live in, a group home, but the trustees will not pay for this, Jane can apply to the court to intervene. The court might order that Jane's share be used to buy a house for herself and some friends or might order the trustees to pay rent for a house.

Will of a person with an intellectual disability

Some intellectually disabled people can make valid wills and some cannot. There are two basic requirements for the will to be valid. Firstly, the will-maker must have ‘testamentary capacity’ (be able to make a proper will). This requires that the person:

  • knows what a will is;
  • realises in general terms the amount and type of property they are disposing of; and
  • is able to weigh the moral claims that they should be considering.

Secondly, the will-maker must know and approve of the contents of the will. There is a strong presumption that this is the case where the will has been read by or to the will-maker. To protect a person with a disability's will from challenge, a number of precautions should be taken. While it is not necessary that the will-maker understands all of the legal terms in the will, it is preferable that the will be uncomplicated and in plain language. One of the witnesses to the will should be someone such as a psychologist. This person should sign a statement setting out that they were satisfied that the will-maker had testamentary capacity and knew and approved of the contents of the will. This statement should also set out the person's basis for being so satisfied, including details of the person's conversation about the will with the will-maker. If the will-maker cannot read, the statement should also say that prior to the will being signed, the witness heard the will read over to the will-maker who then stated that they approved the will.

The will should be drawn up by a solicitor experienced in will-making and, preferably, in dealing with intellectually disabled people, so that proper precautions are taken. The solicitor should keep comprehensive notes. If there is doubt as to whether a particular person is capable of making a valid will, the person should still be allowed to make the will.

If a person with an intellectual disability dies with no will or with an invalid will, then the 'intestacy' laws apply.

Under the Testators Family Maintenance Act 1912 (Tas) a person may, in certain circumstances, ask the Supreme Court to vary someone else's will. A person with a disability or someone on their behalf can do this just as anyone else can.

Statutory Wills

Provision now exists under the Guardianship and Administration Act 1995 (Tas) for the Guardianship and Administration Board to make a statutory will in appropriate circumstances.

When is it appropriate to make a Statutory Will?

Situations in which it may be appropriate to make a Statutory Will include where:

  • a person had testamentary capacity, never made a valid will and subsequently loses testamentary capacity; or
  • a person never had testamentary capacity and never made a valid will.

In these situations, when the person dies their property is distributed according to the rules of intestacy. It may be appropriate that provision be made in a Statutory Will for other or additional persons. An example of such provision may be for a person who has had the long term care of another person who lacks testamentary capacity.

The Board would not normally make an order for the execution of a Statutory Will if the proposed beneficiaries under the Statutory Will are the same persons who would inherit the person’s estate on an intestacy.

The Guardianship and Administration Board cannot make an order for the execution of a Statutory Will if there exists a prior valid will. If an application is made to the Board for an order for the execution of a Statutory Will, the Board is required to make such enquiries as are reasonable as to the possible existence of any prior will.

Before the Board will make an order for the execution of a Statutory Will, it must be satisfied that the person for whom the will is proposed does not have the capacity to make a valid will. In addition, the Board must consider the following matters:

  • any evidence relating to the wishes of the person for whom the will is proposed to be made, which may include the person’s present wishes as well as those expressed in the past;
  • the likelihood of that person acquiring or regaining capacity to make a will at any future time;
  • the interests of any person who would be entitled to receive any part of the estate of the person for whom the will is proposed to be made if the person died intestate;
  • the likelihood of an application being made under the Testator’s Family Maintenance Act 1912 (Tas)
  • the circumstances of any person for whom provision might be expected to be made;
  • any gift for a charitable or other purpose that that person might reasonably be expected to give or make by a will;
  • the likely assets of the estate of the person for whom the will is proposed.

If the Board determines that it is appropriate to make a Statutory Will it will make orders for its preparation. Once executed, a Statutory Will has the same effect as if it had been made by the person and the person had testamentary capacity.

Aboriginal Law

What is Aboriginal Law?

There is a distinction between Aboriginal law and the law which governs Aborigines in Australia today. . Aboriginal law is law that existed before the coming of the common law system that we continue to follow today.

For a long time, the idea of Aboriginal law existing in Australia, particularly in a place like Tasmania where Aboriginal society had been almost destroyed, was met with resistance by the legislature and courts of Australia. But Aboriginal law is a fact. It continues to exist in Aboriginal communities, including the Tasmanian Aboriginal community, to the extent that its members continue to observe customs and practices.

Australian law recognises certain aspects of Aboriginal law and custom within its own system. This includes such things as traditional rights to fishing, or land rights, community involvement in rehabilitating or punishing criminal offenders. Some of this law stems from developments in international law, and is generally reflective of greater recognition of the independent cultural identities of indigenous people across the world. This chapter sets out the important parts of Aboriginal law both as it affects Aborigines and the general Australian community.

What is Aboriginal law?

Aboriginal law is distinct from Australian law in that it covers all aspects of Aboriginal life – it is culture, land and law. The oral traditions of Aboriginal peoples inform Aboriginal law, the landscape is part of the oral tradition, and so the land is part of the law. The stories and the landmarks that indicate the stories create the law. In some ways you can draw parallels between Aboriginal law and Sharia law, derived from the Koran, in that it covers all aspects of life – family, community, crime. In the common law tradition, of which Australia is a part, many things we would consider to be social decisions, and not legal decisions, are considered to be part of Aboriginal law.

Because Aboriginal law is so different from common law, it can be difficult to understand. The Australian legal system does not guide us on how to behave in all aspects of our lives, but Aboriginal law does. Australian law doesn’t tell us who can and can’t eat a certain animal, or how infidelity in marriage should be punished. These are considered matters of personal choice. In Aboriginal law this is not the case.

However, time has radically altered nearly all Aboriginal communities, and inevitably the stronger of the two systems of law prevailed – this is the Australian legal system. This system recognises Aboriginal law, but Aboriginal law is not independent of this legal system.

What is an Aborigine?

The Aboriginal Lands Act 1995 (Tas) defines an Aboriginal person as someone who can establish they have Aboriginal ancestry, self-identification as an Aboriginal person and communal recognition by members of the Aboriginal community (s3A). This is the same definition as accepted by the High Court of Australia in the 1983 ‘Tasmanian Dam Case’.

In 1996 two members of the Aboriginal Tasmanian community challenged the Aboriginal identity of 11 of the 34 candidates for the election of the Tasmanian Regional Aboriginal Council. The case was dealt with by the Federal Court (Shaw & James v Wolf & Ors [1998] FCA 389). The court held that Aboriginal descent was essential but ‘self-identification’ and ‘communal recognition' could be relevant factors in any particular case. It also held that in this particular case it was up to the challengers to prove that the candidates were not Aborigines. The challenge was largely unsuccessful, and the decision has little practical effect in most areas particularly as the onus of proof and standard of proof made it practically impossible for the applicants to establish their case.

Generally the onus is on the person seeking to establish an entitlement, as an Aborigine, to funds, services and other things intended for Aborigines, to prove that they are an Aborigine. What proof is required varies with circumstances.

Right to Land

Land law is the most important part of Aboriginal law. It defines who you are and where you belong. Even before the famous Mabo case (Mabo & Anor v Queensland (1992) 175 CLR 1), Australian society had begun to recognise the continuing importance of land to Aboriginal communities by passing ‘land rights’ legislation at state and territory levels. This development arose from the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory which was established following the defeat of Aboriginal claims to possessory or native title in the Federal Court’s  Milirrpum v Nabalco Case in 1971.

Mabo

In the Mabo case it was finally recognised that Australians had not settled in an empty land (terra nullius) but that this land was inhabited by people with their own laws, including laws which defined their rights to the land. The High Court found that much of this law had been 'extinguished' by the massacre of whole tribes and the dispossession of Aborigines from their lands under Australian law, but where Aborigines had survived and maintained a link with their lands, their rights to their lands had survived and were now to be recognised as part of Australian law.

Following the Mabo case, the Commonwealth government passed the Native Title Act 1993 (Cth)  Developments which led up to this legislation have been document by Aboriginal activity Gary Foley on his Koori History Website ‘The Road to Native Title: The Aboriginal Rights Movement and the Australian Labor Party 1973-1996'. One of the most important things the Act did was to legalise all past actions in taking land from Aborigines, subject to a right of compensation for land taken contrary to the Racial Discrimination Act 1975 (Cth) since 1975. However, it also enables Aborigines to lay claim to land that is left by showing that they have maintained their traditional links with their land. The procedures are very long and involved. Any claim must first pass a stiff ‘registration test' before the application can begin. Passing this test gives the Aboriginal claimants the right to negotiate about such things as mining on their land.

Both the registration test and the claims process have been made even more difficult with amendments to the Act which followed the of Wik case (Wik Peoples v Queensland (1996) 187 CLR 1). This case decided that native title could co-exist with interests in land created by pastoral leases which cover a large part of Australia. Because of alleged discrimination against Aboriginal property rights, the Commonwealth government was asked to ‘explain’ these amendments to the Native Title Act by the UN Committee on the Elimination of Racial Discrimination.

Very few contested native title applications have been successful. No native title application in Tasmania has ever passed the registration test. Claims are increasingly being settled by agreements between the Aboriginal claimants and people affected by the claim.

Tasmanian Aboriginal land

The Aboriginal community in Tasmania was granted a number of small parcels of land under the Aboriginal Lands Act 1995 (Tas) (s27). ‘Aboriginal land’ under that Act consists of land of important historical and cultural significance to Aborigines such as Oyster Cove and Risdon Cove near Hobart; Wybalenna on Flinders Island where many tribal people perished in the early 19th century; various mutton-birding islands in the Bass Strait and some inland cave sites. A list of the sites can be viewed in Schedule 3 of the Act. This land is held in trust for the Aboriginal community by a statutory body, the Aboriginal Land Council of Tasmania (ALCT) (ss5 and 6), which is elected by members of the community (Part 2, Div 2). The land cannot mortgaged by ALCT (ss27 and 30), and local Aboriginal groups can be involved in its management (s31). There are rights of pedestrian access to the land for non-Aboriginal people, and the state government has reserved rights to build roads, and erect fences on the land (s27).

Other Rights and Interests

Hunting and Fishing

Taking fish from the sea and birds and animals from the land continues to be an important part of modern day Aboriginal law and culture in Tasmania. Until recently such activities were regarded as illegal unless allowed by legislation applicable to the general community and commercial interests. Traditional Aboriginal hunting and fishing practices are protected under the Native Title Act, but an attempt to establish that such rights continued to exist in southern Tasmania in relation to taking abalone was unsuccessful (Dillon v Davies (1998) TASSC 60).

However, Aboriginal cultural, and native title rights to take fish are recognised under the Living Marine Resources Management Act 1995 (Tas) (s10(2)). Aborigines exercising their cultural rights to fish do not need a licence (s60(2)(c)). The onus is on a person to prove they are an Aborigine and are engaged in cultural fishing (s215(b)). The government's view is that bag and size limits and other regulations continue to apply, though this is not a view shared by the Aboriginal community.

Cultural Rights

The main legislation for Aboriginal heritage protection is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) concerning matters of national environmental significance. In Tasmania, the ancient heritage at Kutalayna (Jordan River levee) attracted Commonwealth intervention under the EPBC Act when it was accepted for national heritage listing in December 2011.

Protection is also available under the Commonwealth’s Protection of Movable Cultural Heritage Act 1986 (Cth) to stop heritage objects from being exported illegally. However, there is no legislation to prevent the sale of significant items such as portraits and paintings at auction or by private sale.

The federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) enables the Commonwealth Minister for  Sustainability, Environment, Water, Population and Communities to make declarations preventing ‘desecration or injury' to sites and objects of cultural significance to Aboriginal people (ss10 and 12). In practice, the power to make declarations under the Act is a ‘back-up’ where the state is unable or unwilling to act, and Commonwealth intervention to protect Aboriginal heritage is uncommon.

The courts have also been prepared to protect Aboriginal culture from exploitation through creative use of copyright law and the common law relating to breach of confidence. Breach of confidence was used to stop an anthropologist publishing sacred ritual knowledge he had obtained from Pitjantjatjara tribal elders in Central Australia (Foster v Mountford (1976) FLR 233). Copyright law was used to stop the Reserve Bank using sacred pole designs on the $1 note, and to stop an importer selling carpets reproducing paintings containing images of sacred significance.

The outdated Aboriginal Relics Act 1975 (Tas) has been under review for more than a decade and a draft Aboriginal Heritage Protection Bill 2012 (Tas) was open for public consultation until 14 December 2012. The Bill was passed in the House of Assembly in November 2013, and is now before the Legislative Council. DPIPWE provides comprehensive information on the process. 

It has been put forward that the Bill fails to reflect the principles included in recommendations of a Working Group chaired by former Liberal Premier, Ray Groom. In particular, it fails to recognise Aboriginal community ownership of Aboriginal heritage, removes blanket protection for Aboriginal artefacts located in the soil, and establishes less protections for Aboriginal heritage than exists for non-Aboriginal heritage under the Historic Cultural Heritage Act 1995 (Tas). For a detailed analysis, see the Tasmanian Aboriginal Centre website.

Genetic Rights

Knowledge of the genetic structure of human beings, and flora and fauna are considered valuable resources. Commercial interests are seeking to patent knowledge of genetic heritage as ‘intellectual property’ for their own exclusive use for medical, and plant and animal breeding purposes.
Indigenous peoples are understandably concerned that this new extension of the frontier of human knowledge will simply become a means of exploiting their genes and the biodiversity of the living natural resources of their lands. Australia ratified the Convention on Biodiversity in 1993. Article 10 of this convention requires Australia 'to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements'.

Human Remains

The battle to secure respect for the Aboriginal dead has been a crucial cultural issue. Tasmanian Aborigines have been prepared to go to museums in all corners of Europe and North America, as well as Australia and New Zealand, to bring back the remains of their ancestors taken for ‘scientific’ or trophy purposes in the 19th and early 20th century.

The Coroners Act 1995 (Tas) recognises the right of the Aboriginal community to deal with the remains of both ancient and contemporary Aboriginal people by requiring a coroner who suspects that human remains are Aboriginal to place the matter in the hands of an Aboriginal organisation (s23). Currently the relevant organisation is the Tasmanian Aboriginal Land and Sea Council Inc (this organisation is not the same as the elected but statutory Aboriginal Land Council of Tasmania (ALTC)).

Families

The Commonwealth's 1996 Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families (‘the Stolen Generations’ Inquiry) documented the damage done to Aboriginal people, their families and community by past ‘welfare’ practices directed towards the assimilation of Aborigines into the mainstream population. This occurred across Australia. In August 1997 the Tasmanian state government was one of the first to make an official apology to the Aboriginal community for this. The Stolen Generations of Aboriginal Children Act 2006 (Tas) remains the only legislation in Australia to make financial redress to the survivors of the government removal of Aboriginal children policy and practice. Then Premier Paul Lennon made an empassioned speech to Parliament and the Bill received bipartisan support.

The Children, Young Persons and Their Families Act 1997 (Tas) says that an Aboriginal organisation must be consulted before an order is made as to where an Aboriginal child is to reside following family breakdown (s9(1)). Court decisions must take into account what the Aboriginal organisation says (s9(2)). There are no such provisions under the Adoption Act 1988 (Tas) but the community welfare authorities do observe a protocol to the same effect. Under this protocol Aboriginal organisations will also be consulted where Aborigines seek to contact their natural parents or vice versa.

Currently, the Family Law Act 1975 (Cth) states that in making parenting orders, the court must take into account the child-rearing practices of a child’s Torres Strait Islander or Aboriginal culture (s61F).

Discrimination

Discrimination on the grounds of race, colour and national or ethnic origin in employment, joining trade unions, housing, access to places and goods and services and in advertising, is illegal under the Racial Discrimination Act 1975 (Cth) (s9). A number of provisions of the Racial Discrimination Act are of particular importance to Aborigines. The Act specifically protects ‘special measures’ by governments designed to enable victims of discrimination to overcome its effects (s8). Laws which are discriminatory, either on their face or in effect, are also unlawful under the equality before the law provisions of the Act (s10).

The meaning of ‘special measures’ has been much debated in the context of the Howard Government’s Northern Territory National Emergency Response Act 2007 (Cth) which specifically exempted the operation of the Racial Discrimination Act 1975 in order to implement overtly racist control measures under the guise of protecting children from sexual abuse. There has been some discussion on the possible implications for Tasmania of the activities of the federal government in the Northern Territory.

Indigenous self-determination, self-government and sovereignty

Whilst much of the focus in the recent decade has been on ‘Sorry’, and a wide cultural and political recognition of the wrongs of the past, there have been more other political movements to achieve representation for Aborigines and Torres Strait Islanders. Indigenous Australians never chose the system of law that governs them, and due to their position as a minority of the population they do not generally have the ability to significantly influence the political process with their votes. Lobbying is one means of doing so, hence the Aboriginal Tent Embassy, or the widespread presence of ‘Invasion Day’ renaming on Australia Day.

Many Aborigines seek greater power to govern themselves. Sometimes this is in the form of greater recognition of Aboriginal law that pre-dated the arrival of European law. This was explored comprehensively by the Australian Law Reform Commission in its Recognition of Aboriginal Customary Laws Report published in 1986, but its findings have been ignored by governments.

Other movements are more radical: a right to secede to form a sovereign nation of their own, others to become a nation (or nations) 'within a nation’ as is the status legally of the Indian nations in the United States of America, or special representation in Australian representative institutions such as federal and state parliaments by means of reserved seats as the Maoris have in New Zealand. These differing bids to retain a separate political identity progress slowly. Moreover, sometimes social and political struggles in Aboriginal communities have come to take precedence over struggles for political representation as a unified voice.

The absence of the recognition of Aborigines and Torres Strait Islanders in the Australian Consitution led some to argue that a new preamble or new provisions in the Consitution was a necessary step towards rectifying the wrongs of the past. Then Prime Minister Kevin Rudd made his National Apology to Australia’s Indigenous Peoples in the Federal Parliament in 2008 but did not establish mechanisms for a financial or political settlement. In December 2010 Prime Minister Julia Gillard appointed an ‘Expert Panel on Constitutional Recognition of Indigenous Australians’ which consulted nationwide and made recommendations for constitutional change. The proposed referendum was later abandoned by the Prime Minister.

Developments in international recognition of indigenous peoples’ rights

One important source of pressure for constitutional change to accommodate the aspirations of indigenous people for a greater degree of political and cultural independence is likely to come from developments in international law, particularly the law contained in United Nations instruments. The UN Convention for the Elimination of All Forms of Racial Discrimination has become part of Australian law by its adoption in the federal Racial Discrimination Act 1975 (Cth)  and while the passage of the Act promised to become an important guarantee of Aboriginal rights to their land and property, the political and social climate has proved hostile to realising this promise. Article 27 of the UN International Covenant on Civil and Political Rights protects the cultural rights of different ethnic groups within nation states. Australia has ratified this covenant, but it has not been made part of Australian law. However, the fact of ratification has enabled Aborigines to argue for legislative protection of cultural rights.

The international legal order has been built upon the idea that the nation state has complete power over its citizens. This idea is increasingly under challenge where the state violates the human rights of its citizens as recognised under international law. One of the strongest challenges to that idea has come from indigenous peoples around the world. From 1983, under UN sponsorship, their representatives met annually with the representatives of the nation states to negotiate the terms of the Draft Declaration of the Rights of Indigenous Peoples. The Declaration was adopted by the United Nations General Assembly in 2007 with only Australia, USA, Canada and New Zealand dissenting. Australia finally endorsed the Declaration in 2009 but has not enacted legislation to ensure the implementation of the Declaration in Australia. The Declaration may eventually prove to be the catalyst which enables Aborigines to attain nationhood under international law.

Aborigines and the Criminal Law

Aboriginal people have a disproportionate representation in a low socio-economic demographic. They are more likely to be arrested, charged with offences and imprisoned than any other group. Charges often involve drunkenness, bad language and defiance of authority as an element, and because of a legacy of hostility between police and Aborigines, arrests may lead to multiple charges (see Police Offences Act 1935 (Tas) (ss44A12 and 34B)).

In 1989 the Royal Commission into Aboriginal Deaths in Custody found that the much greater frequency of Aboriginal deaths in custody was a direct result of huge over-representation of Aborigines in the prison system, and made hundreds of recommendations to governments designed to overcome the high imprisonment rates of Aborigines. However, implementation of these recommendations has been slow, and high death rates continue as high rates of imprisonment remain steady and in some cases increase.

Some of the most over-used provisions of the Police Offenses Act, such as being drunk and incapable of taking care of oneself, were removed as a result of the Royal Commission’s work and Police Standing Orders were changed to require police to notify the Aboriginal Legal Service when an Aboriginal person is detained. Police in Tasmania at an official, and in some cases at a street, level have shown themselves more willing to enforce the law in a way that is more sensitive to the special vulnerability of Aboriginal community to law enforcement processes.

The Youth Justice Act 1997 (Tas) enables Aboriginal community representatives to participate directly in procedures designed to divert first and minor offenders away from the court system through police ‘cautions' and 'community conferencing’ (ss11(1)14(1)(c)(ii), and 38(2)(e)). An Aboriginal representative may be present in the closed court with the consent of the young Aboriginal person charged (s30(1)(i)). If placed in detention, reasonable efforts must be made to meet the needs of young Aboriginal detainees as members of the Aboriginal community, in addition to their cultural needs. (s129(c)).

Legal Assistance

There is no legal impediment to Tasmanian Aborigines accessing the same legal assistance as other Tasmanian residents but the practical exclusion of many Aborigines from the criminal justice system resulted in the establishment of Aboriginal Legal Services throughout Australia in the early 1970s. There is an Aboriginal Legal Service in Tasmania operated by the Tasmanian Aboriginal Centreand providing legal aid in a number of areas of law with emphasis on protecting the civil andpolitical rights of the Aboriginal community. The TAC has offices in Hobart, Launceston and Burnie.

A person seeking aid must establish that he or she is eligible for Aboriginal services and that the matter for which aid is sought is within the terms of the Commonwealth’s ‘Policy Directions’. Stamp duty assistance for first home buyers is sometimes available through the Aboriginal Legal Service. Legal assistance is provided through the Aboriginal Legal Service’s retained law firm, Beeton and Mansell. Only if the Aboriginal Legal Service cannot act will the Service meet the costs of providing a private lawyer. Aboriginal people may also seek legal assistance from other bodies offering this. The contact details for the Hobart, Burnie and Launceston offices are available through the Tasmanian Aboriginal Centre website.

Organisations

Aboriginal organisations fulfil many functions in the Aboriginal community. They are a means of political advancement for the community and the maintenance of Aboriginal cultural identity in mainstream Australian society. Some are ‘grassroots’ organisations thrown up by the struggles of the Aboriginal community in these spheres. Others are the products of government attempts to ensure representation of Aboriginal interests in government decision-making processes or to regulate particular aspects of Aboriginal community life.

The State government has an Office of Aboriginal Affairs in the Department of Premier and Cabinet. Its function is to advise the government on State policies affecting the Aboriginal community. There are also a large number of community organisations set up to provide services and promote cultural and other activities in the Aboriginal community.

The largest and oldest Aboriginal organisation is the Tasmanian Aboriginal Centre. It has offices in Hobart, Launceston and Burnie. As well as providing political representation and cultural promotion for the Aboriginal community, it offers a wide range of services including legal, health, substance abuse, family support, land management, child care and Aboriginal language and culture programs. The Tasmanian Aboriginal Land and Sea Council  another organisation, is concerned with the protection of the cultural heritage of the Aboriginal community.

There is also the Aboriginal Provisional Government - a countrywide organisation intended to promote Aboriginal sovereignty and self-government.

Intellectual Property and Copyright

What is Intellectual Property?

IP Australia is the government department that administers patents, trade marks, designs and plant breeders rights. Registering intellectual property is a process that is dealt with by IP Australia.

Copyright is an automatic right. The regulation of copyright is a process that is administered through the Attorney-General’s Department.

Intellectual property laws protect the use of ideas. They do not protect ideas as such. The types of things that are protected by intellectual property laws include creative works, inventions, brands, industrial designs and trade secrets,

Intellectual property has the same basic attributes as all other property. An owner of an item of intellectual property has a legally enforceable right to:

  • use and enjoy;
  • allow others to use and enjoy;
  • sell; and
  • exclude others from using and enjoying.

There are four statutory regimes in the area of intellectual property law. These are:

In addition, there are two pieces of legislation dealing with specific aspects of intellectual property:

The general law in Australia also plays a role in intellectual property law, particularly in the protection of confidential information and trade secrets and in the protection of business reputation. Consumer protection legislation also plays a dual role, in protecting business reputation on the one hand, and in restricting anti-competitive conduct on the other.

There are a number of international agreements relating to intellectual property. The most notable is the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS)  TRIPS sets minimum standards for intellectual property laws that all member states (including Australia) have to comply with.

Copyright is the most well known form of intellectual property. This chapter explains the basic legal structures in Australia around intellectual property, with particular focus on copyright law, and provides resources for further information and research.

How Intellectual Property Protects Your Ideas

An intellectual property owner can sue for infringement when someone uses their intellectual property without their permission. It is advisable for intellectual property owners and users to contact an intellectual property professional to discuss their rights and responsibilities, and the range of remedies available for successful intellectual property infringement action. Remedies include injunctions, damages and account of profits. An interim injunction may be available, which allows the intellectual property owner to prevent continued infringement while a legal action is pending. For the most part, it is up to intellectual property owners to monitor and police their own rights. However, there are some criminal offences as well, particularly for infringement of copyright on a commercial scale. 

Copyright

What is Copyright?

Copyright in Australia is governed by the Copyright Act 1968 (Cth)  Copyright in Australia is an automatic right; it does not require registration. Copyright protects the original expression of ideas, and not the ideas themselves. It is probably the most prominent form of intellectual property. Copyright is administered by the Attorney-General’s Department.

Think of the word ‘copyright’: it is the ‘right of copy’. Imagine that a novelist has written a short piece for a friend as a gift and given it to them. Although the writing is no longer in the novelist’s possession, the friend cannot copy the writing and distribute it. They do not own the copyright in that original expression of ideas. However, the idea the writing is based on – for example, the evocation of memory through taste, is not copyrighted.

The two classes of protected material in copyright

The Copyright Act divides material into two general classes for copyright protection:

Works: artistic, musical, literary, and dramatic works; and
Subject matter other than works: sound recordings, films, broadcast, and published editions.

What are examples of copyrightable material?

Some common categories to which copyright attaches include:

  • books
  • song lyrics (distinct from song melodies and harmonies)
  • film scripts
  • dance moves
  • paintings, photographs, sculptures and other artworks
  • musical scores
  • computer programs
  • newspapers
  • magazines
  • sound recordings – CDs, tapes, mp3s
  • TV and radio broadcasts
  • films

When Does Copyright Exist?

Although there is no official registry or application process for copyright protection, there are requirements for copyright to exist. For copyright to exist there are six factors that must be present:

Qualified person

A qualified person must hold the Australian copyright. This includes: a body corporate incorporated under a law of the Commonwealth or State, or an Australian citizen, or a person who is resident in Australia.

Material form

Under the Copyright Act, material form is defined as ‘any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced)’. This basically means: any storage of the whole or substantial part of the work, i.e. a novel in electronic or published form, a song on a CD, a painting on a canvas, a photograph stored on a digital disk. The work must exist in some form that can be recognised or reproduced.

Originality

Originality means that the material – a novel, a poem, a song, must have originated with the author, and not have been copied from another source. A translation of a book from Chinese to English is viewed as original work. It merely has to be original. A translation would also need to be from a book out of copyright, or with the author’s consent. The originality requirement only applies to works. It is not a requirement for other subject matter.

Substance

Substance requires that the matter be more than single words and phrases. Generally, single words and phrases are not protected by copyright. However, more than single words and phrases, such as a haiku poem, or a pro forma letter will be regarded as having enough substance

Expression, not ideas

The expression is what is copyrighted, not the ideas. A good example is a collection of short stories. Other authors may have copyright in each individual story but the editor of the collection who chose the works will have copyright in the collection – in the expression. The editor would have used their skill and judgment, and this qualifies their work as an expression that can attract copyright.

Author

There must be an author of the work. It does not matter if it is one or more authors. However, if there are many contributors – such as for a telephone directory, there will be no copyright in the work as the work of each participant is not sufficient to amount to expression – there will be insufficient substance to their work.

Copyright Owners

Copyright is a bundle of exclusive rights. These rights enable the copyright owner to make copies of the work and to protect it from unauthorised use. The type and extent of the rights differ according to the nature of the material.

The general rule is that the author or creator of a work, and the maker of other subject matter is the first owner. However, there are exceptions to this rule, particularly in the employment context, when the employer will generally be the owner. As copyright is a form of personal property, it can be bought and sold, and as such, ownership can change over time. A person will only have to prove that they own copyright if their claim to copyright is disputed in court. If they own copyright as a result of being the author or creator of the material concerned, they would prove this by calling witnesses who know that the person created the material or by producing their original drafts and/or manuscripts. In some countries, including Australia, the author of a work has an additional ‘moral’ right to be recognised as the author regardless of who owns the copyright.

How long does copyright last?

Copyright generally lasts for a period of 70 years. However, the mechanics of how this operates differs with each material. Copyright in works will normally last for 70 years after the 31st of December of the year the author of the work dies.

If an author dies before publication or performance of their work, copyright lasts for 70 years after the 31st of December of the year the work was first made available (s33(3)). Section 34 states that this is also the case where the author of the work is unknown, and for broadcasts, sound recording and films the rule is the same (ss93,94 and 95).

Literary, Dramatic or Musical Works

For literary, dramatic or musical works the rights are as follows:

  • to reproduce the work in a material form which includes all forms of copying, whether by hand, photocopying, recording, filming, printing, and storage in a computer retrieval system;
  • to publish the work which means supplying copies to the public;
  • to perform the work in public which includes both live and recorded performances;
  • to communicate the work to the public;
  • to make an adaptation of the work;
  • to do, in relation to an adaptation, any of the acts specified above;

with the exception of computer programs, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording;
in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.

Artistic Works

Copyright in artistic works is narrower, comprising the rights to:

  • reproduce the work in a material form;
  • publish the work;
  • communicate the work to the public.

Sound Recordings

Copyright in sound recordings includes the rights to:

  • make a copy of the recording;
  • cause the recording to be heard in public;
  • communicate the recording to the public;
  • enter into a commercial rental arrangement in respect of the recording.

Films

Copyright in relation to films includes the rights to:

  • make a copy of the film;
  • cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
  • communicate the film to the public.

Television and Sound Recordings

Copyright in television and sound recordings includes the rights:

  • in the case of a television broadcast, to make a film of the broadcast, or a copy of such film;
  • in the case of a sound broadcast or of a television broadcast in so far as it consists of sounds, to make a sound recording of the broadcast, or a copy of such sound recording;
  • to re-broadcast a television or sound recording;
  • communicate the television or sound recording to the public otherwise than by broadcasting it.

Published Edition

Copyright in a published edition is the right to make a copy of the edition, including by photocopying and offset printing.

Rental Rights

The commercial rental right referred to above for literary, dramatic and musical works and sound recordings, only arises when the commercial rental arrangement is made in the course of conduct of a business and only when payment is made for the copy. It is not enough that a deposit is paid to secure return of the copy. The commercial rental right in relation to computer programs only arises when the program is an essential object of the rental. The right includes the rental of objects such as floppy discs, CD roms and integrated circuits. The right only extends to the rental of other machines or devices if the program can be copied through the normal use of the machine or device.

Performers' Rights

Until recently, performers did not have copyright in their performances. It is still the case that if a live performance is recorded in film, copyright will belong to the maker of the film. However, if a sound recording is made of a live performance, copyright is jointly owned by the maker of the sound recording and the performers. There is also separate provision for ‘performers rights’ in Copyright Act, requiring a performer's consent for the recording or broadcast of a live performance. Once consent is given, the authorised recording may be used in any way without further consent from the performer. The only exception to this rule is that a sound recording cannot be used in the sound track of a film without permission.

Moral rights

Moral rights are concerned principally with the right of an author to be recognised as the author of a work and to object to alteration or distortion of the work. These rights are personal to the author and can still be exercised even after copyright has been transferred to another person. Moral rights have been recognised for many years in Europe and in UK copyright law.

The Copyright Act gives an author:

  • a right of attribution of authorship; or
  • a right not to have authorship falsely attributed; and
  • a right of integrity of authorship.

Performers also have moral rights. The moral rights of a performer are:

  • a right of attribution of performership; or
  • a right not to have performership falsely attributed; and
  • a right of integrity of performership.

Australian Copyright Bodies

The National Library

The Copyright Act requires that a copy of any library material published in Australia must be deposited with the National Library. Material which should be deposited includes books, periodicals, newspapers, sheets of letter press, sheets of music, maps, plans, charts and tables. This is not copyright registration, but aims to ensure that material is preserved and assists the Library to produce comprehensive bibliographies. International Standard Book Numbers (ISBNs) and International Standard Serial Numbers (ISSNs) can also be obtained from the Library. These numbers identify books. Each state also has its own deposit requirements. In Tasmania, copies of library material must also be deposited with the State Librarian, Hobart.

The Copyright Tribunal

The Copyright Tribunal is established through the Copyright Act. The Tribunal makes determination on such matters as the amount payable by way of remuneration to the owners of the various forms of copyright. It also makes determination as to the amount or royalty payable for recording of musical works, the manner of payment of royalty and the apportionment of royalty payments.

The Tribunal has the power to make declarations concerning collecting societies and educational institutions. It also makes determinations concerning licensing schemes and other licenses.

Infringement

Copyright will not protect you against independent creation of a similar work. Two people could write very similar songs, independently of each other, for example. To constitute an infringement a person uses all or a ‘substantial part’ of an author’s copyrighted material in one of the ways exclusively controlled by the owner, without either express or implied permission of that copyright owner, where there are no defences or exceptions to the infringement.

Substantial part does not necessarily equate with a precise portion of the work or other subject matter. Rather, substantial refers to the particular quality or qualities that make it important or distinctive. For example, sampling the essential melody of song without permission will be a breach of copyright. Well known musicians have faced copyright infringement cases, such as George Harrison or Vanilla Ice. Even well known authors have been noted for infringing copyright, such as H.G Wells, and T.S Eliot, when ‘‘borrowing’’ large parts of their work from obscure authors.

Copyright is infringed when:

  • all or a ‘substantial part’ of the work or other subject matter has been used in a way exclusively controlled by the copyright owner;
  • without express or implied permission; and
  • no defence or exception exists

Copyright is also infringed when one person authorises another person to do the acts included in the copyright without the permission of the copyright owner. This has become a particularly contentious issue in the online environment. Recently, the High Court of Australia decided that an internet service provider did not authorise copyright infringement simply by providing the internet service used by unauthorised downloaders of copyright-protected material.

Exceptions to infringement

The Copyright Act allows certain uses of copyright material to be made without obtaining permission from the owner of the copyright.

Fair dealings

It is permissible to make a ‘fair dealing’ use of an appropriate part of copyright material, without permission, for specific purposes:

  • research or private study;
  • criticism or review;
  • reporting news;
  • parody and satire;
  • a judicial proceeding or a report of a judicial proceeding;
  • the giving of professional advice by a legal practitioner, patent attorney or trademarks attorney.

Research and study is one of the most common forms of fair dealing. In libraries you will often find that there are statements on how much of a work you can reproduce for the purposes of research or study.

Educational institutions

No infringement occurs where short extracts of published literary, dramatic, musical or artistic works or short extracts of adaptations of those works are collected in a book, sound recording or film intended to be used by places of education.

Libraries and archives

Copying in libraries and archives is permissible when the purpose is:

  • for members of Parliament;
  • for research or study purposes;
  • for other libraries or archives;
  • to make a copy of an unpublished work;
  • to make a working copy, reference copy or replacement copy of a work kept in the collection of the Australian Archives;
  • for preservation or replacement;
  • for publication of an unpublished work.

There are some limitations on the extent to which libraries can make available electronic reproductions of works.

Other exceptions

There are also a number of specific exceptions to infringement in relation to works, and subject matter other than works. For example, it is permissible to make reproductions of computer programs for a number of purposes which include: normal use or study; making back up copies; making interoperable products; correcting errors; and security testing. Similarly, it is permissible to read or recite literary, dramatic and musical works in public or for a broadcast and to cause sound recordings to be heard in public or broadcast. There are a range of other specific exceptions to infringement which are not listed here.

Compulsory licensing schemes

The Copyright Act also establishes a number of compulsory licensing schemes. Under these schemes, acts which would otherwise infringe copyright are permitted, on condition that a royalty is paid to the copyright owner. For example, educational institutions and institutions assisting people with intellectual disabilities are allowed to make copies of sound recordings or films of transmissions without infringing copyright in any work, sound recording or film included in the transmission. This exception only applies if:

  • the administering body of the institution has given a remuneration notice to the appropriate collecting society;
  • the copy is made solely for educational purposes or for the purpose of providing assistance to people with intellectual disabilities;
  • each copy of the recording of the transmission is appropriately marked.

Each of these institutions may also make multiple copies of literary, dramatic, musical and artistic works, provided that essentially the same requirements as set out above for making of copies of transmissions are followed.

International Copyright - the Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works was signed in 1886 with only a few member countries. This has grown to 165 member states. The Berne Convention, along with 23 other international conventions, is administered through the World Intellectual Property Organisation (WIPO), an organ of the United Nations.

The Berne Convention basically provides for reciprocal copyright arrangements between member states. This means that if a person has copyright over a literary work in Australia, and it is later published in the Bahamas then Bahaman copyright law will apply, even though the initial copyright was held in Australia. This means that there is international recognition of copyright and the rights attached to copyright. Before the Berne Convention, a work created in one country had copyright there but nowhere else. So, a work could be reproduced and distributed in another country and it would not be a copyright infringement. This is no longer the case between member states.

Another aspect of the Berne Convention that makes the reciprocal recognition of copyright valuable is the setting of minimum standards for copyright law between member states. The minimum standards cover the exclusive rights of copyright, such as the right to make reproductions, as well as moral rights.

Designs

Design law protects the appearance of commercially produced products. The Designs Act 1906 (Cth) establishes a system for registration of new or original designs for use in relation to mass-produced articles. Registration gives the owner the exclusive right to apply the design for which it is registered. A design may include the shape of an article or the pattern or ornamentation applied to an article. To qualify for registration a design must be new or original, but need not be both. A design is new or original if it has not been previously registered, published or used. The date for assessing whether a design is new or original is the date on which the application for registration is lodged. Design registration lasts for a maximum of 16 years from the date the application is lodged, made up of an initial term of 12 months, followed by three five-year extensions. Renewals are the responsibility of the design owner as the Designs Office does not send renewal notices. A design is registered in relation to a particular article or set of articles, for example, a dinner service.

Overlap between Copyright and Designs

Copyright and designs are separate systems but there is the potential for overlap between them. Design art which is protected as an artistic work under the Copyright Act may also qualify for protection under the Designs Act 1906.

The Copyright Act contains provisions that deal with artistic works which are also eligible for registration under the Designs Act. The intention of these provisions is to maintain copyright protection for artistic uses of designs while removing copyright protection for industrial uses of designs for three dimensional articles, which should be registered under the Designs Act. Copyright protection is lost once the design is industrially applied and the articles produced are marketed. ‘Industrially applied’ means manufacturing in commercial quantities.

Two dimensional designs, ‘flat’ designs, applied to the surface of an article can be protected under both the Copyright Act and the Designs Act.
Three dimensional craft works which are mass produced continue to be protected by copyright provided that each article can be classed as a ‘work of artistic craftsmanship’. This category includes such works as woodcarvings, pottery, jewellery, basket weaving, enamelling, knitting work and so on. Design registration is available for these works but once registered, copyright protection will be lost.

Patents

The Patents Act 1990 (Cth) forms the basis of Australia’s patent law. Patents only exist in registered form.  Applications for registration must be made to IP Australia.

Patents provide inventors with a temporary exclusive right to exploit their invention and authorise others to exploit it. Patents are available for inventive products and processes. The Patents Act states that where the invention is a product, exploitation encompasses making, hiring, selling or otherwise disposing of the product, offering to make, hire or sell or otherwise dispose of the product or using, importing or keeping the product for any of those purposes. Where the invention is a process, exploitation encompasses using the process for any of the acts mentioned above in relation to inventive products.

Patents give stronger protection than copyright, because copyright infringement requires proof of copying. Patents can be infringed by a person who comes up with the same invention entirely independently. Because of the strong protection offered by the patent system, the requirements for obtaining a patent are more onerous than for other forms of intellectual property. In addition, the trade off for the grant of a patent is full disclosure of the invention and the best method of performing it.

Patent requirements

There are two main types of patents granted in Australia – standard patents and innovation patents. They differ in terms of cost, length of protection, processing time, and the types of inventions they cover.

A standard patent provides long-term protection and control over an invention for a 20 year period.

Standard patents are only granted by IP Australia if the invention:

  • is new;
  • involves an inventive step – a step that is not an obvious thing to do for a person with knowledge and experience in the field;
  • is useful, in the sense of having industrial applicability;
  • is fully disclosed, including the best method of performing it;
  • is not otherwise excluded (for example you can’t get a patent over a human being – see below).

Standard patents are only granted after an examination of the application. The process can take between 6 months and several years. The application must meet the standards set out above for the patent to be granted. The claims made in the patent must not go too far beyond the scope of the invention (referred to as the sufficiency requirement).

An innovation patent, although it might sound much better, gives shorter protection for what IP Australia deem to be less inventive patents. The period for which an innovation patent lasts is 8 years. It is quick and inexpensive compared to a standard patent application. Innovation patents:

  • are usually granted within a month of filing the complete application;
  • have no examination process prior to grant, although they must be examined and certified before they are enforceable;
  • require an innovative step rather than an inventive step – this amounts to an incremental advance rather than a groundbreaking invention; an inventive step is ‘different from what is known before … and makes a substantial contribution to the working of the invention’.

The validity of both types of patents can be challenged at any time. Challenges before standard patents are granted are known as opposition proceedings. Challenges after the patent is granted are known as revocation proceedings.

International patents

Both standard and innovation patents only apply in Australia. There is no global patenting system. Patents have to be applied for in a number of different countries to protect the invention. However, there is a Patent Cooperation Treaty (PCT)  which facilitates filing in multiple countries. Australia is a party to the PCT. The application process for an international patent is accessible via the IP Australia website, and can largely be done online (depending on the nature of the invention). The application process is similar to that for a standard patent.

Statutory Exclusions from Patenting

There are only a few express exclusions from patenting in the Patents Act. The most significant exclusion is for human beings and the biological processes for their generation. There is some debate as to whether this exclusion encompasses human DNA sequences and human cloning techniques.
The Commissioner for Patents also has discretion to refuse applications on a number of grounds. These include:

  • where the use of the invention would be contrary to law;
  • when the invention is either a substance which is capable as being used as food or medicine and is a mere mixture of known ingredients or is a process producing such a substance by mere admixture;
  • where the claim includes the name of a person as the name or part of the name of the invention.
  • In addition, a number of exclusions are incorporated into the Patents Act from an old English piece of legislation known as the Statute of Monopolies. Patents will not be granted for inventions that are: -
  • contrary to law;
  • mischievous to the State by raising prices or hurting trade; or
  • generally inconvenient.

There is debate about the extent to which the ‘generally inconvenient’ exclusion allows the introduction of ethical and social policy considerations in assessing the validity of a patent.

Exceptions to infringement

The Patents Act includes provision for some uses of patents that do not constitute infringement, even if the patentee does not give permission for those uses. These are:

  • certain uses for experimental purposes;
  • use for the purpose of gaining regulatory approval, required for the sale of certain products. For example, pharmaceuticals cannot be sold unless they are listed on the Australian Register of Therapeutic Goods; and
  • certain prior uses.

Licensing

Patents are expensive to obtain and maintain. The patentee must pay application and registration fees and yearly renewal fees. In addition, the patentee must set aside sufficient funds to take infringement proceedings and defend revocation proceedings or take out insurance in relation to these matters.

To be worthwhile, the invention must be commercially exploited. The patentee will often lack the appropriate set up to commercially exploit the invention in sufficient quantities to make it worthwhile. In such circumstances, it is preferable for the patentee to licence another person to commercially exploit the invention. Licence agreements must be carefully drafted to protect the rights of the patentee. When properly drafted, licence agreements can be very lucrative.

If a patentee and/or licensee fails to adequately exploit the invention, others may apply for compulsory licenses to ensure that the patent is properly exploited. This is one of the safe guards to ensure that the patent system fulfils its purpose of encouraging innovation.

Fees

See the IP Australia website for fees for patent applications and upkeep of your patent. All patents are subject to a yearly fee. If you forget to pay the fee, there is a six-month grace period before your patent will no longer be in force. There is an additional fee for each month of the six months of the grace period. An extension of time may be available if you cannot pay your fees.

Trade Marks

What can be a trade mark?

A trade mark is a right over a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging. A trade mark is often distinct in the sense of having a particular design or typography in the words, numbers or phrases it uses.

Benefits of registering a trade mark

You do not need to register a trade mark to use it, however there are benefits, including:

  • the exclusive right to use your registered trade mark as a brand name for the goods or services specified in the registration;
  • the exclusive right to authorise other people to use your registered trade mark for the goods or services specified in the registration
  • the right to sell your trade mark, in the same way as any other item of personal property;
  • registration covering the whole of Australia; and
  • the right to prevent importation of goods carrying your trade mark, including the option of giving the Australian Customs Service a notice objecting to the importation of goods carrying your trade mark.

Unregistered trade marks

There are still rights that attach to unregistered trade marks. There are protections at common law, and under the Competition and Consumer Act 2010, and state fair trading legislation. This may include misleading or deceptive conduct by another party who seeks to use your unregistered trade mark to represent themselves as being connected with your business.

The ® and ™ symbols

You cannot use the ® symbol unless you have a registered trade mark. It is an offence to do so. However, you can use the ™ symbol with an unregistered trade mark.

How long does a trade mark last?

Trade marks last for 10 years with initial registration. There is a fee for application, and also a fee for renewal of the trade mark for successive periods of 10 years. The trade mark must be actively used, otherwise your rights may not be enforced as the trade mark can be removed on the grounds of non-use.

How to Register a Trade Mark

 

Before registering a trade mark, it is important to search the trade mark database ATMOSS to make sure you are attempting to register something original. The Telstra ‘T’ symbol or the QANTAS kangaroo, are examples of trade marks. These help to identify the business and distinguish it from other providers.

Applications for registration of trade marks are made to the Trade Marks Office of IP Australia. An application must be in the prescribed form which is available from the Trade Marks Office. The application must include a representation of the trade mark sufficient to identify it.

The trade marks register is split into 34 different classes of goods and eight different classes of services for administration purposes. In the application for registration, an applicant is required to select one or more classes of goods and/or services to which the trade mark relates. The application fee increases with each additional class nominated.

The applicant must describe the goods and/or services to which the trade mark relates. It is not enough simply to refer to the class description, for example by the words ‘all goods’ or ‘all services. The applicant must clearly describe the goods and/or services more specifically.

The description of the goods or services is important because the Registrar of Trade Marks uses this description together with the representation of the trade mark to determine whether the trade mark is registrable. Trade marks are only registrable if they are ‘used or intended to be used to distinguish the applicant's goods or services...’ The description of goods or services is also used in determining whether or not there has been infringement of the trade mark.

IP Australia provides comprehensive advice and access on trade marks and the application process.

Fees

Fees for trade mark applications and processes associated with trade marks range between $90 and $350.

Confidentiality/trade secrets

There will be instances where legal protection of intellectual property will not suffice or is not applicable or is too expensive. Examples include inventions that are not patentable, technical know-how, client lists, etc. Such information will often be a valuable form of property that should be protected. In such circumstances, the best means of retaining the value of the information is to keep it secret and to ensure that any disclosure is made in circumstances of confidentiality.

There are a number of situations where the need for confidentiality arises. These include the employment setting, joint ventures, manufacturing and distributing arrangements, etc.

Confidential Information vs. Patents

There are some disadvantages in patenting inventions. These include:

  • the requirement for full disclosure;
  • limited duration after which the invention can be freely used;
  • the time and expense involved in obtaining and maintaining the patent.

Disadvantages of confidential information include:

  • once disclosed in public, the advantage of the confidential information is lost;
  • there is not prohibition on another person independently creating the same invention; and
  • commercial exploitation of the information enables others to obtain the relevant information by reverse engineering.

The owner of the secret information must make the decision to opt for confidentiality or patenting once the decision is made to commercially exploit the information. If the decision is made too late some of the essential requirements for patenting may not be capable of being fulfilled.

Contractual Protection Of Confidential Information

Confidentiality can be protected by contractual agreements. Confidentiality clauses may be included in the main agreement or a separate confidentiality agreement may be entered into.

In the employment setting, an employee is under a duty of fidelity during the course of their employment with the employer. The duty of fidelity is an implied term in the employment contract and is also a fiduciary obligation of the employee. One of the classic examples of breach of this duty is copying of client lists with the intention of using them after the end of the employment contract. Breach of the duty requires deliberate copying. If the list comes into the employee’s head as a matter of course and there is no special effort to retain it there will be no breach. The duty of fidelity does not extend beyond the duration of the employment contract.

In general, it is recommended that confidentiality clauses are included in employment contracts. By this means, the information can be protected both during the course of employment and when the employment contract comes to an end. The same considerations apply to other contractual arrangements involving the disclosure of confidential information. Care should be taken in drafting confidentiality clauses. If they are too broad they could be struck out by the court as being in restrain of trade. It is recommended that legal advice should generally be sought as to the permissible extent of the restraint.

Contractual provisions are only enforceable as between the parties to the contract. In many instances, the person benefiting from the disclosure may not be a party to the contract. As such, the full extent of the loss suffered by the disclosure may not be recoverable through an action for breach of contract.

Equitable Protection Of Confidential Information

In addition to contractual protection of confidential information, there exists an equitable action for misuse of confidential information. There are three essential elements to this action:

  1. the information has the necessary quality of confidence;
  2. the information must have been reported in circumstances importing an obligation of confidence; and
  3. there has been unauthorised use of the information to the detriment of the party communicating it.

1. Confidence

Clearly, as a starting point the information must be secret. It may be necessary to disclose the information to a number of people including employees, joint venture partners etc. In the employment setting, the courts have determined a number of criteria in determining whether information is confidential:

  • the extent to which it is known outside the employer's business;
  • the extent to which it is known by employees and others involved in the employer's business;
  • the extent of measures taken by the employer to guard the secrecy of the information;
  • the value of the information to the employer and to competitors;
  • the amount of money and effort expended by the employer in developing the information; and
  • the ease or difficulty with which the information could be properly acquired or duplicated by others.

When information has been disclosed in circumstances of confidentiality and subsequently becomes public the person to whom the information was disclosed in confidence is still obliged not to use the information as a ‘springboard’ for activities detrimental to the person who made the confidential communication. The springboard will lapse when the information is in the public domain to such an extent that the confidant no longer has an unfair head start over other competitors.

2. Receipt of Information

The receipt of information in circumstances of confidentiality requires that the confidant has knowledge that the information was disclosed in circumstances of confidence. This is an objective test - whether a reasonable person would have realised on reasonable grounds that the information was given in confidence.

3. Unauthorised Use

There must be unauthorised use of the information. Disclosure presupposes that some use will be made of the information. Impermissible use will generally occur when the confidant has made ‘unconscientious use of the information’. The confidant will also be liable for negligent misuse of the information. Misuse of confidential information extends beyond the confidant to third parties. As such, the confider can take action both against the confidant and against third parties.

Defences and Remedies

Defences

Disclosure will be allowed in certain circumstances. These include where there is just cause or excuse, when the public interest favours disclosure and when required by law.

Remedies

As with other forms of intellectual property, remedies for misuse of confidential information include injunctions, damages and account of profits. The courts may also award a constructive trust in which case the confidant will hold any benefit obtained from the breach in trust for the confider.

Discrimination

What is Discrimination?

Everybody discriminates. Employers discriminate in favour of applicants with the best skills, experience or presentation. Educational institutions discriminate in favour of those who work hard and achieve good results. Landlords discriminate in favour of those with good references. These sorts of choices are made on merit and to discriminate in this way is considered normal and acceptable.

Where discrimination is not acceptable is where choices are made not on merit but for extraneous reasons such as race, age, disability, or gender. A decision not to employ a woman as an airline pilot, even though she is the best applicant, because she might get pregnant, is not acceptable and various laws have been put in place to ensure that decisions like this can be challenged.

Direct or Indirect Discrimination

Discrimination can be direct or indirect. Direct discrimination covers situations where a person or organisation discriminates against another on the basis of stereotyped beliefs or views; for example, where an employer refuses to employ a qualified young person because of a stereotyped belief that young people are lazy and unreliable workers.

Indirect discrimination covers rules, practices or policies which appear to be neutral and impartially applied, but which in practice exclude a whole group of persons, and there is no reasonable basis for the exclusion. For instance, an unnecessary height requirement for a particular job might exclude applicants from races which are typically smaller in stature than Anglo-Saxons, or might exclude women.

This chapter covers Tasmanian and Commonwealth Acts governing unlawful discrimination.

The Tasmanian Anti-Discrimination Framework

Tasmanian Anti-Discrimination Commissioner and Anti-Discrimination Tribunal

The Commissioner has a number of functions, including enquiring into discrimination and prohibited conduct and investigating and seeking to conciliate claims (ss56769Anti-Discrimination Act 1998 (Tas)).

Who may lodge a discrimination complaint?

Section 60 of the Act lists who may lodge a claim. This includes a person who was the subject of the alleged discrimination or prohibited conduct; an agent; a member of a class of people against whom the alleged discrimination was directed; or a trade union. An exhaustive list is available at section 60 of the Act.

How to lodge a complaint

To lodge a complaint, a person is directed to contact the Office of the Anti-Discrimination Commissioner, either in writing, by email or by telephone in order to proceed to submitting a written complaint. A complaint form is available on the Office of the Anti-Discrimination Commissioner’s website: www.antidiscrimination.tas.gov.au. The Commissioner can provide procedural advice and assistance to any person who requires assistance to make a complaint (s62(2)).

Time Limits

A claim is to be made within 12 months after the alleged discrimination or prohibited conduct took place. The Commissioner may accept a claim made after the 12-month time limitation has expired if satisfied that it is reasonable to do so (s63).

Procedure

The Commissioner decides whether to accept or reject a complaint within 42 days (s64(2)). Once the Commissioner has investigated a complaint, the matter can be either resolved with dispute resolution mechanisms, such as conciliation, or referred onto the Anti-Discrimination Tribunal.

Tasmanian Anti-Discrimination Tribunal

The Anti-Discrimination Tribunal functions include review of decisions of the Commissioner and conducting inquiries into discrimination complaints.  An inquiry by the Tribunal is usually preceded by a conciliation meeting. An inquiry is like a hearing.  Participants may want to seek legal advice before getting to this stage. In an inquiry, the Tribunal will make decisions about the facts, apply the law to the facts, and make orders accordingly.  The Tribunal has heard a number of cases.

The Tasmanian Anti-Discrimination Act 1998

Tasmania’s Anti-Discrimination Act 1998 (Tas) makes discrimination and certain other conduct (such as sexual harassment) unlawful. The Act also provides for the investigation and inquiry into complaints of discrimination and prohibited conduct.

Grounds of Discrimination

The Anti-Discrimination Act sets out the grounds on which people cannot be discriminated against. Tasmania’s Anti-Discrimination Act is extensive and sets out 20 grounds on which a person cannot be discriminated against:

  • race
  • age
  • sexual orientation
  • lawful sexual activity
  • gender
  • marital status
  • relationship status
  • pregnancy
  • breastfeeding
  • parental status
  • family responsibilities
  • disability
  • industrial activity
  • political belief or affiliation
  • political activity
  • religious belief or affiliation
  • religious activity
  • irrelevant criminal record
  • irrelevant medical record
  • association with a person who has, or is believed to have, any of these attributes

Sexual Harassment and offensive conduct

The Anti-Discrimination Act makes sexual harassment unlawful. The Act has a broad definition of sexual harassment. As well as unwelcome physical contact of a sexual nature, sexual harassment may also include conduct such as unwelcome gestures, actions or comments. Sexual harassment is not just unlawful in the workplace, but in any area to which the Act applies.

As well as making sexual harassment unlawful, the Act also makes it unlawful for a person to offend, humiliate, intimidate, insult or ridicule a person in relation to grounds associated with gender, relationship status and family responsibilities. Often a complaint involving sexual harassment will also involve offensive conduct on the basis of gender or relationship status.

Victimisation

The Act also makes “victimisation” unlawful. Victimisation occurs were a person is treated badly for making a complaint to the Office of the Anti-Discrimination Commissioner, or treated badly for supporting a person in their complaint. The victimisation provision also protects people who are treated badly for refusing to do, or join in, discriminatory or other prohibited conduct.

Inciting Hatred, Serious Contempt or Severe Ridicule

The Act makes it unlawful for a person to incite hatred toward, serious contempt for, or severe ridicule of, a person or group on the following grounds:

  • race
  • disability
  • sexual orientation or lawful sexual activity
  • religious belief, affiliation or activity

Unlike the other provisions of the Act, where the unlawful activity must be connected with an area of activity (such as employment, or education), this provision applies to any public act.

Obligations of organisations

The Anti-Discrimination Act requires that all organisations take a pro-active role to ensure that the Act’s provisions are known and adhered to by all managers, employees and others. Failure to do so may mean that organisations are directly liable for any breaches of the Act by their officers, employees, agents, etc. This provision is contained in section 104 of the Act.

Often when a person complains of being discriminated at work, they will bring a complaint against the person who discriminated against them, and the organisation where they work, for failing to ensure that the manager or employee did not engage in discriminatory conduct.

Exceptions and Exemptions under the Tasmanian Act

The Anti-Discrimination Act 1998 (Tas) recognises that sometimes there needs to be exceptions to allow for conduct that might otherwise be considered discriminatory. Exceptions are set out in Part 5 of the Act.

Part 5 of the Act also sets out the procedure to follow if someone wants to apply for an exemption from the Act.

What is an exception?

Exceptions are 'defences' to claims of discrimination. If a person claims discrimination, the person against whom the claim is made can argue that the discrimination was not unlawful discrimination, if an exception covers it.

An example would be a club which called itself the ‘Over-60’s Club’ and catered for a membership of people who have reached 60 years of age or more. A person below this age who tried to join would have their membership application rejected. The club could claim it is a ‘club for a particular age group’, which is an exception provided for in section 32 of the Act.

What exceptions are named in the Act?

The Act lists general exceptions at sections 23-26. These include equal opportunity groups, which attempt to promote equal opportunity for disadvantaged or special need people (s26), groups which promote the benefit of disadvantaged or special need people (s25), and charities (s23). If it is necessary to discriminate in order to comply with State or Commonwealth law, this is also permissible (s24).

Specific exemptions are listed at sections 27-55 and include: same-sex or age group sports teams, superannuation, insurance and financial services for particular age groups, retirement, education for persons of a particular age (e.g. University of the Third Age, Hobart), age appropriate employment, benefits and concessions for particular ages, cultural and religious places.

What is an exemption?

Exemptions can be applied for before a claim of discrimination is made. An organisation can take a pro-active stance to have a ‘ruling' from the Anti-Discrimination Commissioner, stating that what the organisation wants to do is 'protected' discrimination. This can happen if the organisation wants to discriminate in favour of a disadvantaged group - for example, to favour unemployed youth in an employment scheme.

If a claim of discrimination is lodged after an exemption has been granted, the claim ultimately may be rejected because the organisation, or the organisation's program, has been exempted from the Act for a set period.

How do 'exceptions' and 'exemptions’ work?

Charities

The Act says that charities can include a discriminatory provision in their aims and objectives where their charitable benefits are provided for persons with an attribute or identity that under the Act could not otherwise be able to be singled out for particular treatment. An example would be a charity supporting refugees of a particular race.

Actions required by law

Laws typically require people to do, or not do certain acts. For example there are laws that state that people under the age of 18 cannot be sold alcohol or cigarettes. Under the Act, this is not unlawful age discrimination as it is an action required by law.

Sometimes discrimination required by law is not reasonable. For example, the Marriage Act states that people in same-sex relationships cannot marry. This is obviously discrimination on the ground of sexual orientation, and there is no logical reason as to why this discrimination is contained in the Marriage Act. In these situations, people are required to lobby lawmakers to change the law.

Disadvantaged groups and special needs

Employers may seek to provide a service to disadvantaged groups and the most effective way of doing this is to employ a person of the sex/race/or other attribute of the group they are seeking to service. For example, the Migrant Resource Centre might employ migrants with two or three languages, or from a represented community to better facilitate interaction between staff and clients.

Equal opportunities

Employers intending to enhance the career prospects of certain disadvantaged groups may target certain training programs exclusively at the groups in question.

Other Specific Exceptions

There are many other specific exceptions. Theatrical productions may require characters of a certain age or race. Religious institutions may seek to employ a person with that religion. Single sex accommodation may seek a person of a particular gender in a residential care position. Most of the exceptions are in line with current community views as to what is appropriate. Change rooms in clothing stores are sex segregated and the general expectation is that shop assistants employed in those areas should be of the same sex as those using them.

Most employers, where community standards appear clear-cut, rely on a non-discriminatory advertisement setting out the duties involved in order to get the person they want. However, not every case is clear-cut.

Applying for Exemption

Division 11 of the Act covers applying for exemptions.  If granted, an exemption allows a person or organisation to engage in conduct that may be considered discriminatory.  For example, a community organisation that provides support to women may want to employ a female case worker.  The community organisation would apply for an exemption to do so.

To gain an exemption under the Act, a person applies to the Anti-Discrimination Commissioner. The Commissioner looks at the desirability of redressing the effect of past discrimination or prohibited conduct; and any other relevant factor (s56). The Commissioner can grant an interim exemption, pending consideration of the application.

If the Commissioner grants an exemption, the exemption cannot last for a period greater than three years. Conditions can be attached, and the exemption can be extended if the Commissioner approves the renewal application (ss56-57). 

A list of granted exemptions appears on the Office of the Anti-Discrimination Commissioner’s website.

If the applicant breaks any conditions, the Commissioner can withdraw the exemption (s57(2)). Anyone can apply to the Anti-Discrimination Tribunal for review of a grant, refusal or renewal of an exemption, or imposition of conditions, within 28 days of a notice appearing in the Government Gazette. Information on the Anti-Discrimination Tribunal is available online.

Procedure

Upon receipt of any application for an exemption, the Anti-Discrimination Commissioner publishes a notice in the Government Gazette, The Mercury, The Examiner and The Advocate advising that an application has been made, the name of the person who has made it, and the nature and basis of the application. Submissions in support or against must be made in writing to the Commissioner within 14 days of the date of publication of the notice. Submissions will be considered by the Commissioner in granting, refusing, etc. an application for exemption. They may be referred to in the reasons and will be listed in the document granting or refusing the exemption. Notice of exemption/refusal is published in the Gazette.

Is There A Cost?

There is no cost associated with applying for an exemption.

Discrimination in Employment

Affirmative Action

Employers must generally treat all their employees fairly and equally and must not discriminate against anyone for any of the reasons covered under the above laws. Effectively, they must all be equal employment opportunity employers.

However there is provision in the Commonwealth Acts discussed above to allow employers to discriminate in favour of some groups over others in some circumstances. It is acceptable for an employer to advertise to employ someone of a particular racial background where the job is to provide welfare services to people of the same racial background and the best way of providing these services is to have someone of the same background provide them. However, if an employer wanted to set up a female-only apprenticeship scheme to encourage more women to take up a particular trade, they would almost certainly need to get a specific exemption to do so. This type of situation, where the aim is to redress past disadvantage or discrimination, is often called ‘affirmative action’.

Under the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth), federal departments and authorities such as Australia Post and the ABC must also have an Equal Employment Opportunity plan and affirmative action programs for women, aboriginal people, people from non-English-speaking backgrounds, and people with disabilities.

The Fair Work Act 2009 (Cth)

The Fair Work Act 2009 (Cth) protects workers’ rights in the workplace.  The Fair Work Act also makes discrimination in the workplace unlawful. Often workers’ rights will be a discrimination issue as well as an employment issue, however, this is not always the case. Workers’ rights are often to do with wages, employment conditions, breach of award or contract, and will not have a connection with discrimination. However, the Fair Work Act acknowledges that sometimes discrimination can also occur, and this is unlawful. 

What types of discrimination are covered

Section 351 of the Fair Work Act states that an employer must not take adverse action against an employee, or prospective employee on the basis of:

  • race;
  • colour;
  • sex;
  • sexual preference;
  • age;
  • physical or mental disability;
  • marital status;
  • family or carer's responsibilities;
  • pregnancy;
  • religion;
  • political opinion;
  • national extraction; or
  • social origin

However, where the discrimination is an inherent requirement of the particular position concerned (such as a female attendant in a female change room), or an action is taken against a staff member in good faith, in accordance with religious beliefs or tenets, in an attempt to avoid injury to the religious susceptibilities of adherents of a religion or creed, the discrimination may not be unlawful (s351(2)).

The Fair Work Act is employment specific, unlike the anti-discrimination Acts. Anti-discrimination Acts apply to other areas of life as well as the workplace. Complaints under the Act are directed to Fair Work Australia to be investigated and conciliated according to their procedures. If these procedures are initiated and then fail, a complainant can make an application to an eligible state or territory court, the Federal Court or the Federal Circuit Court in accordance with Fair Work legislation.

Complaints process under the Fair Work Act

Complaints can also be directed to Fair Work Australia, or become the subject of a court application. Section 365 defines the jurisdiction of Fair Work Australia to dealing with disputes over dismissal. However, section 372 allows Fair Work Australia to deal with any other work related dispute as well.
Dismissal complaints under the Fair Work Act (FWA) must be made within 60 days after the dismissal took effect, unless Fair Work Australia permits a time extension for exceptional circumstances (s366).

It is mandatory for Fair Work Australia to organise a conference to deal with the dispute, using mediation or conciliation (s368). Conferences are the first line of dispute resolution, however conference attendance is voluntary and complainants are entitled to be heard by Fair Work Australia. If all reasonable attempts to resolve the dispute have been or are unlikely to be successful, Fair Work Australia will issue a certificate stating the situation (s369). Once this remedy is exhausted, a person is entitled to make a general protections court application under Division 2 of Part 4-1 of the FWA (s370).

Discrimination complaints not involving dismissal are covered by the civil remedies provisions, and can be dealt with by Fair Work Australia. There are limits on the amounts that can be awarded for damage arising from discrimination – restrictions are 20 penalty units for individuals and 100 penalty units for a body corporate (s798). A penalty unit is currently $110. Civil remedy limitations apply in such cases. In Tasmania, this is 6 years under the Limitation Act 1974 (Tas).

Applying to the courts

If the complaint is not concerning dismissal, the complainant can apply directly to the Federal Court or the Federal Circuit Court (ss539-543), and to State Courts. There is also the option to go to Fair Work Australia, under section 372 of the Act.

Civil remedy provisions in the Act are outlined in section 539 – these are aspects of employment that if breached can be addressed with a civil remedy (such as reinstatement, damages, or wages). These are breaches of work conditions or agreements, such as minimum wage orders, outworker terms, and equal remuneration orders made by the FWA.

Remedies available under the Fair Work Act are civil remedies (s539). Acts which also constitute criminal acts can be brought before a court in a criminal action under different legislation, such as where there has been negligence in the workplace and an injury.

Federal Human Rights Framework

The Australian Human Rights Commission (AHRC)

The Australian Human Rights Commission (AHRC) is a government body that develops policy on discrimination and human rights, and can hear complaints under the federal discrimination laws – the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth)the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth). The AHRC is established under the AHRC Act 1986, which also establishes its powers to investigate and conciliate disputes on the grounds of discrimination. Although employment is a major area in which discrimination occurs, the AHRC can investigate and conciliate disputes that arise in other areas, such as:

  • Rights to equality before the law
  • Access to places and facilities
  • Land, housing, other accommodation;
  • Provision of goods and services;
  • Education;
  • Media;
  • Neighbourhood disputes, and
  • Internet

The AHRC Act sets out the complaints procedure through which people may make complaints to the AHRC for violations of the Racial Discrimination Act (RDA), the Sex Discrimination Act (SDA), the Disability Discrimination Act (DDA), and the Age Discrimination Act (ADA). See AHRC Complaints for a full discussion of the complaint process.

Age Discrimination

The Age Discrimination Act 2004 (Cth) (the ADA) is a relatively new arrival in Commonwealth discrimination law. There have been limited cases brought before the courts, and they represent a small percentage of complaints brought to the attention of the AHRC. The purposes of the Act are to raise community awareness that people of all ages have the same fundamental rights and equality before the law, and to eliminate discrimination on the basis of age as far as is possible in the areas specified in the Act (s3, ADA).

Age discrimination legislation is directed at promoting the rights of the young and the old. The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Age Discrimination Act.

What is age discrimination?

Age discrimination can be both direct or indirect. Under section 5 of the ADA, ‘age’ includes ‘age group’, which can refer to such categories as ‘teenagers’ or ‘grey nomads’. This allows for a wider application of the Act, as it takes into account the stereotyping of age groups as opposed to people of a particular set age. An example would be ‘teenagers are irresponsible and unsuitable for full-time work’ or ‘older women are unattractive, and so not suitable for hospitality work’.

Age discrimination is less favourable treatment because of ‘a characteristic that is generally imputed to persons of the age of the aggrieved person’ (s14, ADA). The Act defines direct age discrimination as treatment where:

  • the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of a different age; and
  • the discriminator does so because of:
    (i)  the age of the aggrieved person; or
    (ii) a characteristic that appertains generally to persons of the age of  the aggrieved person; or
    (iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.

For example, an applicant before the Federal Court complained of discrimination in reduced and altered working hours. The applicant claimed these changes were based on her age, as a new manager at the bar was heard to want younger female bar staff for their appearance and alleged greater appeal to patrons. The applicant argued that this amounted to direct and indirect discrimination on the basis of the applicant’s age, as it typified her older age group as less attractive than people in a younger age group. Although her claim was unsuccessful this would amount to age discrimination if the specific circumstances of non-discriminatory practices in the case were not present.

Indirect discrimination is defined under section 15 of the ADA and is substantially similar to the provision in the Sex Discrimination Act 1984 (Cth) (SDA):

"For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of age of the aggrieved person if:

  • the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
  • the condition, requirement or practice is not reasonable in the circumstances; and
  • the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.

For the purposes of paragraph 1(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator."

So, indirect discrimination is the imposition of a condition, requirement or practice that unreasonably excludes a person and disadvantages people of that age group.

Two or more reasons – homogeneity in the Commonwealth Discrimination Acts

As with the SDA (s8), the Racial Discrimination Act 1975 (Cth) (RDA) (s18) and the Disability Discrimination Act 1992 (Cth) (DDA) (s10), under the ADA, if an act is done for two or more reasons, and one of those reasons arose from a discriminatory ground, the act is taken to be done because of the discriminatory reason – here, the age of the person, whether or not it was the dominant or substantial reason for doing the act (s16).

When does the ADA apply?

The ADA applies in the following areas:

  • work (ss18-25);
  • accommodation (s29);
  • access to premises (s27);
  • education (s26);
  • access to goods, services and facilities (s28);
  • land (s30);
  • the administration of Commonwealth laws and programs (s31); and
  • requests for information on which age might be based (s32).

\Whether or not there is employment discrimination is determined by assessing a set of factors that must be taken into account. These are:

  • the person’s past training, qualifications and experience relevant to the particular employment;
  • if the person is already employed by the employer – the person’s performance as an employee; and
  • all  other  relevant factors that it is reasonable to take into account.

This is the ‘inherent requirements’ exemption, which allows for the necessary skills and qualifications that may be required by a job to be the focus in choosing employment candidates.

Generally, the ADA seeks to prevent the denial of services or discriminatory treatment on the basis of age. For example, not allowing an older person to enter a nightclub on the basis of their age could contravene section 27 as it is refusing access to premises that the public or a section of the public is entitled to enter or use, and could contravene section 28 as the nightclub is providing goods or services or facilities, and being discriminatory in doing so.

Exemptions

Exemptions under the ADA include:

  • positive discrimination;
  • youth wages (s25);
  • superannuation, insurance and credit;
  • health;
  • charities, religious and voluntary bodies;
  • migration and citizenship; and
  • exemptions relating to direct compliance with laws and orders of courts.

Positive discrimination is permitted insofar as it is intended to benefit a particular age group, such as discounts available for people with a Senior Citizens card. Although extending a discount only to holders of such a card (and that particular age group) discriminates against other age groups, it positively discriminates in another age group’s favour.

Making a Complaint

See AHRC Complaint Process.

Disability Discrimination

The Disability Discrimination Act 1992 (Cth) deals with discrimination on the grounds of disability and makes discrimination unlawful in employment, access to premises, education, the administration of Commonwealth laws and programs, and the provision of goods, services and facilities, and many other areas of activity. It covers relatives and associates of people with disabilities, who are also protected from discrimination, and prohibits disability harassment. It allows representative class actions to be taken.

In addition, it gives the Commonwealth power to make regulations establishing legally enforceable Disability Standards in relation to employment, education, accommodation and public transport.

The AHRC deals with complaints under the Disability Discrimination Act (DDA) in a way similar to that of complaints made under the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth)  The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Disability Discrimination Act.

Disability Standards

The DDA allows the Attorney-General to make ‘Disability Standards’.  Disability Standards clarify and further the rights and responsibilities people have under the DDA, in certain areas. 

The following Commonwealth standards are currently in place:

It is unlawful for a person to contravene a disability standard. The Human Rights Commission provides comprehensive information on Disability Standards.

What is a disability?

The definition of ‘disability’ under the DDA is broad. Disability includes temporary and permanent disabilities. Disabilities can be physical, intellectual, sensory, psychiatric, disease or illness based, a medical condition, a work related injury, and include past, present and future disabilities. It also includes “imputed” disability.

What is disability discrimination?

Disability discrimination can be, as with sex, race and age discrimination, direct or indirect. Under section 5(2) of the DDA, direct discrimination can include failure to make reasonable adjustments for a person with a disability, and failure to do so would result in less favourable treatment of that person compared with a person without a disability in those circumstances.

Indirect discrimination is defined in section 6(2) as where a person:

  • requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
  • because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
  • the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

In effect, this provision prevents a person from setting conditions that would be impossible for a person with a disability from satisfying due to their disability.

Reasonable adjustments

Reasonable adjustments are changes made to minimise or eliminate the disadvantage experienced by a person with a disability. This could include such measures as installing a ramp in a workplace for wheelchair access, providing ergonomic chairs for people with back problems, specially designed chairs, keyboards and workstations for people with a disability that prevent use of standard equipment.

Unjustifiable hardship and other exemptions under the DDA

Numerous exemptions are allowed under the Act. This means that special measures to ensure people with a disability have their special needs met in employment, accommodation, education, etc. can be exempt. There are also exemptions in the areas of superannuation and insurance where discrimination is based on actuarial or statistical data. Exemptions also exist in relation to migration, the control of infectious diseases, combat duties, and other areas.

‘Unjustifiable hardship’ is a significant exemption under the DDA. ‘Unjustifiable hardship’ is set out in section 11 of the DDA. Section 11 of the DDA says that in considering unjustifiable hardship, all relevant circumstances of the case are to be taken into account, including:

  • the nature of the benefit or detriment likely to accrue to, or be suffered by, any persons concerned; and
  • the effect of the disability of a person concerned; and
  • the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship;
  • the availability of financial and other assistance to the first person; and
  • any relevant action plans given to the Commission under section 64.

Other exemptions include annuities, insurance and superannuation under section 46(1)  For example, a person who was HIV positive was denied an insurance policy on the grounds that the insurance policy excluded ‘all claims made on the basis of the condition of HIV/AIDS’. This discrimination would be lawful if the insurance company could show that they based that discrimination on actuarial or statistical data and other relevant factors (s46(1)(f)).

Discrimination is also permissible in connection with employment, engagement or appointment in the defence force where it involves combat-related duties or peacekeeping services (s53(1)).

Compliance with a prescribed law is also an exemption category, although the prescribed law will be interpreted narrowly by courts to limit the effect of this exemption (s47(2)).

The final exemption is that of special measures. Special measures refer to measures implemented in an attempt to accommodate a person with a disability. It is necessary for special measures to be both ‘reasonably intended’ to achieve one of the designated purposes of the measure and that its discriminatory effect is ‘necessary for implementing the measure’.

Making a Complaint

See AHRC Complaint Process.

Racial Discrimination

The Racial Discrimination Act 1975 (Cth) prohibits racial discrimination in certain areas of public life, and provides for equality before the law on the ground of race. It applies throughout Australia. It is part of Australia’s fulfilment of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Australian Human Rights Commission provides a full discussion of the Racial Discrimination Act.

Offensive behaviour because of race

The Act makes offensive behaviour based on race, colour or national or ethnic origin unlawful. The Act covers any public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group of people because of their race, colour, or national or ethnic origin.

Generally speaking, it must have been possible for someone other than those directly involved in the act to have seen, heard or read it in order for it to be a public act. The following examples could therefore be against the law:

  • racist speeches made in public;
  • racist statements or remarks in a newspaper or journal, on the radio or TV – as long as they are not a fair report of someone else’s act of racial vilification;
  • people wearing racist symbols (such as badges), or clothing with racist slogans, in public;
  • racist gestures made in public;
  • racist publications – although works of literature and scientific and academic works would generally be exempt;
  • racist graffiti, posters or stickers in a public place.

What is racial discrimination?

The Racial Discrimination Act makes it illegal to do any act (in any of the areas below) which involves ‘distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin’ (s9(1)).

The areas in which it is illegal to discriminate are:

  • equal access to the law (s10);
  • access to or use of public places and facilities (s11);
  • land, housing or other accommodation (s12);
  • provision of goods or services (s13);
  • the right to join trade unions (s14);
  • employment (s15);
  • advertisements (s16); and
  • incitement to do unlawful acts) (s17).

Section 18B of the Racial Discrimination Act provides that where there are two or more reasons for doing an act, and one of those reasons is a discriminatory reason, it will be taken that the reason for doing the act is the discriminatory reason.

An important provision under the Act is that legislation enacted by the Commonwealth or states must not discriminate against any particular group on the basis of race (s10).

Section 27 of the Act sets out offences relating to the Act’s administration. Section 27 protects people wanting to make, or who have made complaints under the Act. Under section 27, a person cannot:

  • refuse to employ another person,
  • dismiss or threaten to dismiss another person;
  • prejudice, or threaten to prejudice another person;
  • intimidate, coerce, or impose a penalty upon another person

because that person has made, or intends to make a complaint under the Act, or assist someone who has made, or is about to make, a complaint (s27(2)). Complaint procedures take place under the AHRC Act.

Direct and Indirect Discrimination

Direction discrimination is defined in section 9(1) as distinguishing, excluding, restricting or exercising a preference on the basis of race, colour, descent or national or ethnic origin, where the effect is to nullify or impair recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Examples of this are racial segregation in restaurants or bars, or a job advertisement saying ‘only whites need apply’.

Indirect discrimination is defined at section 9(1A) and has a more complex definition under the RDA. It has three elements, two in addition to the basic definition of discrimination in section 9(1) of direct discrimination. To be indirect discrimination:

  • a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
  • the other person does not or cannot comply with the term, condition or requirement; and
  • the requirement to comply has the purpose or effect of race discrimination.

Examples of this in the context of the RDA would be: minimum height requirements for a job for no apparent reason, which may exclude people from an Asian background, or where workplace health and safety information in a workplace is printed exclusively in English.

Positive discrimination/special measures

It is not discriminatory under the Act to take special measures to assist certain racial or ethnic groups or individuals to achieve equality.

There is also an exception to the Act for provisions made under a will or deed which allows for special treatment for one particular racial group (s8(2)).

Vicarious Liability

Under the RDA, organisation may be vicariously liable for racially offensive acts done by their employees or agents (s18E). This means that if, for example, a person goes to a supermarket and is racially abused by one of the employees working at the supermarket, they can make a complaint against both the employee and the supermarket.

An organisation is not vicariously liable if they can show that they have taken all reasonable steps to prevent the employee or agent from doing the act.

Offences under the Act – civil and criminal

While the RDA defines certain acts as unlawful, these acts do not lead to criminal prosecution. For example, in Gama v Qantas Airways Ltd (No. 2) [2006] FMCA 1767, the court found that making racial slurs was an act of racial discrimination under section 9 of the RDA. The Federal Circuit Court ordered damages be paid to the plaintiff. This is a civil remedy.

So, while a person can make a complaint against another person or body for actions that are racially discriminatory, and have the right to take their complaint to the AHRC, the specific offences punishable by under the RDA are limited to acts set out in Part IV, section 27:

  • hindering, obstructing, molesting or interfering with a person exercising or performing any of the powers or functions referred to in this act;
  • refusing to employ another person; or
  • dismissing, threatening to dismiss another person from employment; or
  • prejudicing or threatening to prejudice a person in employment; or
  • intimidating, coercing, or imposing a pecuniary or other penalty on a person because the person: has made or proposes to make a complaint to the AHRC; or
    assists a person or intends to assist a person in making a complaint: or
    has attended or proposes to attend a conference under the RDA or the AHRC

A person found guilty of any of these offences is subject to fines or imprisonment.

Exceptions and Exemptions

Exceptions to discriminatory measure under the RDA are very limited under the Act. These exceptions are:

  • section 8(1) – special measures;
  • section 8(2) – instrument conferring charitable benefit;
  • sections 9(3) and 15(4) – employment on a ship or aircraft if the person was engaged for that employment outside Australia;
  • sections 12(3) and 15(5) – accommodation and employment in a private dwelling house or flat. Special measures are a form of positive discrimination aimed at furthering aims of equality and non-discrimination. In regard to accommodation or employment in a private dwelling house or flat, the RDA allows for a person to exercise their own discretion as to whom they want to share their accommodation or who they are comfortable employing in their private dwelling house or flat.

In relation to exemptions to the offensive conduct provision in section 18C of the Act, the exemptions aim to strike a balance between freedom of speech, and the right of people not to be humiliated, offended, insulted or intimidated because of their race.

The exemptions to the offensive conduct provision are contained in section 18D, which provides that the offensive conduct will not be unlawful it is said or done reasonably and in good faith:

  • in artistic works, such as performances or exhibitions;
  • in the course of any statement made for a genuine academic, artistic or scientific purpose, or other genuine purpose in the public interest;
  • in fair and accurate reporting of matters in the public interest; and
  • fair comments of matters of public interest, if the comment is a genuine belief held by the person making the complaint.

Making a Complaint

See AHRC Complaint Process.

Sex Discrimination

In a 2012 poll of the G20 countries rating countries on the basis of liveability for women, Australia ranked number 4 out of 19 (excluding the European Union). 370 gender specialists assessed the G20 nations on the basis of quality of health, freedom from violence, participation in politics, work place opportunities, access to resources such as education and property rights, and freedom from trafficking and slavery. While Australia still faces challenges, its standing in the global community is high.

The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Sex Discrimination Act (SDA).

Legislation and Government Initiatives

Australia’s legislative and policy framework includes such initiatives as Safe At Home  aimed at changing attitudes to domestic violence, including viewing domestic violence as criminal behaviour, like any other violence, Safe At Home also aims to promote safety for women in the home, with a focus on moving the offender from the home, rather than the victim.

In terms of rights, protections and opportunities, particularly in the workplace, Australia has the Sex Discrimination Act 1984 (Cth) (SDA) and the Paid Parental Leave Act 2010 (Cth)  The Sex Discrimination Act includes the UN Convention on the Elimination of Discrimination Against Women (CEDAW), an international agreement to which Australia is a party. The SDA is part of Australia’s domestic fulfillment of its obilgations under the CEDAW, as well as international obligations under several other international instruments. This section looks at the Sex Discrimination Act and briefly at the Paid Parental Leave Act.

Paid Parental Leave

The Paid Parental Leave Scheme is an example of the Australian government attempting to ‘level the playing field’ for mothers and fathers who want to take parental leave but still maintain access to work opportunities. The Scheme is aimed at providing the primary carer (usually the mother) with a means of taking a reasonable period of leave to take care of a child or children, and helping employers provide a longer period of maternity leave. It also aims at levelling the access to paid parental leave for casual, part-time, and full-time workers, as well as for women who work in casualised industries (such as hospitality and retail), or who work in low wage employment. The greater the income, the greater the access to paid parental leave. The paid parental leave attempts to address these inequities.

The Scheme also facilitates women returning the workplace, and in returning to the same workplace, from which they took leave to care for a child or children. One of the underlying objectives of the scheme is achieving greater gender equity and balance between paid work and family life. This objective is consistent with those of the Sex Discrimination Act (s3, SDA).

What is sex discrimination?

Under the Sex Discrimination Act it is unlawful to discriminate against a person because of sex, marital status or pregnancy, potential pregnancy and family responsibilities. There SDA also makes sexual harassment unlawful. Under this Act, pregnant women can only be treated differently from people who are not pregnant where there is good reason (such as a specific medical condition) to do so.

It is unlawful to discriminate or sexually harass a person in:

  • employment;
  • education;
  • provision of goods, services and facilities;
  • accommodation;
  • the activities of clubs;
  • the administration of a Commonwealth law or program;
  • qualifying bodies; and
  • disposal of property

The SDA protects women and men from sex discrimination and sexual harassment.

Exemptions

There are many exemptions under the Act. For example, it does not cover services which can only be provided to people of one sex; or jobs where there is a good reason to employ either a male or a female, such as acting roles, fitting clothes, searching clothes or bodies, or change-room or toilet attendants (s30). Discrimination on the ground of sex or marital status is allowed in relation to jobs involving the residential care of children (s35). Voluntary bodies, such as organisations like Rotary, are exempt from the Act as far as membership is concerned (s39).

Other exemptions are competitive sports where strength, stamina and physique are relevant, the employment of women in combat duties in the armed forces, and the practices of religious bodies following their beliefs (s30).

The Act also provides that it is not unlawful to discriminate against a man by affording certain rights to a woman in relation to pregnancy or childbirth.

Victimisation and other offences

It is an offence under the SDA to victimise a person (s94). The offence is punishable by a fine or up to three months imprisonment. Similar to the other anti-discrimination Acts, victimisation is where detriment is threatened or occurs to a person who asserts rights under the Act, or the AHRC Act, makes a complaint, intends to make a complaint, assists or intends to assist a person in making a complaint, Section 42 of the DDA is essentially identical to section 94 of the SDA.

Victimisation can either be the subject of a civil or criminal proceeding. This is because ‘unlawful discrimination’ in section 3 of the Australian Human Rights Act 1986 (Cth) includes conduct that is an offence under section 94 of the SDA.

As with other anti-discrimination Acts, some of the acts that a person can make a complaint about to the AHRC are not unlawful discrimination, and so cannot be the subject of a court proceeding. Aside from victimisation under section 94, other specific offences under the SDA include:

  • Publishing or displaying an advertisement or notice that indicates an intention to do an act that is unlawful by reason of Part II of the SDA (s86).
  • Failing to provide the source of actuarial or statistical data on which an act of discrimination was based in response to a request, by notice in writing, from the President or the Commission (s87).

Complaints

Complaints can be directed to the AHRC following the AHRC procedures. The 2007-2008 statistics indicate a 74 percent conciliation rate for sex discrimination complaints. If the AHRC procedure doesn’t produce the desired result, a complainant can make an application to the Federal Court or Federal Circuit Court.

Lodging a Complaint

Complaints with the AHRC

Where a person believes that they have been unlawfully discriminated against that person can lodge a written complaint with the Australian Human Rights Commission (AHRC) (s46PAustralian Human Rights Commission Act 1986 (Cth) (AHRC Act)). The AHRC will inquire into the complaint and try to resolve the complaint through conciliation. The AHRC may investigate a complaint without a specific person complaining, if it appears to the Commission that a breach of the Act has occurred.

How to make a complaint

The right to lodge a written complaint is governed by section 46P of the AHRC Act. The AHRC process requires a complaint to be made in writing or by email. Complaints can be made in any language, although whether this extends to dead languages or Klingon is not clear.

Powers of the President of the Commission to terminate a complaint

Not all complaints will reach conciliation. Some complaints will be withdraw, whilst some other complaints will be terminated. The President may terminate a complaint if satisfied that the complaint:

  • does not involve discrimination;
  • was lodged more than 12 months after the alleged unlawful discrimination took place;
  • is trivial, vexatious, misconceived or lacking in substance;
  • involves subject matter that has already been adequately dealt with;
  • would be more appropriately resolved in another forum or by another statutory authority;
  • involves subject matter that would be more appropriately dealt with by the Federal Court or Federal Circuit Court; or
  • has no reasonable prospect of being resolved by conciliation.

Dealing with a Complaint

When a complaint concerning a breach of the Act is received, the AHRC will inquire into it. If it appears to have some basis, the AHRC will arrange for a conciliation conference to be held, to try to resolve the complaint. The Commissioner may call a compulsory conference and direct all necessary persons to attend. A person who fails to obey this direction, without reasonable excuse, is liable for a fine.

The Commissioner has power to obtain information and documents to investigate a complaint.

Where the President of the AHRC decides not to inquire into the complaint the President must give notice in writing to the complainant. When the complainant has a notice of termination, they may then lodge an application with the Federal Court to have their matter determined. Whether or not the application can be heard depends on the nature of the complaint, and whether the facts constitute an unlawful discrimination under the anti-discrimination Acts.

What can complaints be about?

The AHRC has the power to investigate and resolve complaints of human rights breaches, discrimination, harassment, and bullying where it manifests as:

  • sex discrimination arising from pregnancy, marital status, breastfeeding, family responsibilities, as well as sexual harassment;
  • disability discrimination including a broad range of disability types, physical, psychiatric, permanent or temporary, past, future or present, and includes association with a person with a disability;
  • race discrimination, including colour, descent, national or ethnic origin, immigrant status, or racial hatred
  • age discrimination against young and older people
  • employment discrimination relating to sexual preference, criminal record, trade union activity, political opinion, religion or social origin.

These complaints can be made under the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act, or the Age Discrimination Act.

Human Rights complaints

Under section 20 of the AHRC Act, the Commission can make an inquiry into a written complaint alleging that any act or practice is inconsistent with or contrary to any human right. Human rights are many and diverse, and are defined as ‘the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.

The AHRC Act defines relevant international instruments as those to which Australia is a party. Declarations are limited to the Declarations on the Rights of the Child, the Rights of Mentally Retarded Persons, and Rights of Disabled Persons, the International Covenant on Civil and Political Rights, and the Convention Concerning Discrimination in respect of Employment and Occupation.

The AHRC is not restricted to investigating discrimination but, as its title suggests, can investigate, instigate conciliation procedures, and make reports on a wide variety of human rights violations in accordance with section 20.

Protection for Complainants

It is an offence to victimise a person who makes a complaint, is intending to make a complaint, or provides assistance to a complainant, under all four discrimination Acts. Victimisation takes the form of a detriment to another person, such as threats, violence, or disadvantage in employment. The provisions in the anti-discrimination acts (s27(2), (RDA)s94, (SDA)s42 (DDA)s51 (ADA)) make it an offence to subject a person to any detriment on the grounds of making a complaint or assisting someone who has made or intends to make a complaint, and several other grounds. The RDA specifically states it is an offence to:

  • refuse to employ another person,
  • dismiss or threaten to dismiss another person;
  • prejudice, or threaten to prejudice another person;
  • intimidate, coerce, or impose a penalty another person
  • because that person intends to make a complaint under the Act, or who assists someone who has made, or is about to make, a complaint (s27(2)).

The phrasing of the DDA and the SDA provisions are substantially similar, referring to victimization as causing any detriment, whilst the ADA also uses similar wording (s51(2), ADA). Penalties include imprisonment or substantial fines.

What is the complaint process?

The AHRC uses conciliation as its means of resolving disputes. Conciliation involves an impartial third party who helps the people involved in the dispute talk through the issues of discrimination. Most feedback on the conciliation process indicates that it is a positive and effective means of facilitating dispute resolution, as the individuals involved can settle the matter on their own terms.

The AHRC provides a comprehensive overview of the conciliation process.

Conciliation is not like a court hearing. It is informal, and can involve face-to-face meetings, telephone conferencing, or even the exchange of letters or messages through the conciliator. Conciliation is a flexible process, meant to facilitate a resolution between parties, rather than impose a decision from outside.

What are the likely outcomes?

The most recent AHRC conciliation statistics available, for the 2007-2008 period, indicate that 74 per cent of the complaints conciliated in that period were successfully conciliated. This means that one or all of the following eventuated as an outcome:

  • an apology
  • reinstatement to a job
  • compensation
  • changes to discriminatory policy
  • the promotion of anti-discrimination policies

Is there more that the AHRC can do?

Whilst the AHRC must take reasonable steps to provide appropriate assistance to a complainant (s46P, AHRC Act), there is nothing more the AHRC can do if a complaint is terminated, or the conciliation is unsuccessful. The AHRC only offers conciliation. If a complaint cannot be conciliated, it may decided by a Court.

Time limits

A complaint must be lodged within 12 months from the date of the alleged unlawful discrimination (s46PH, AHRC Act), or the AHRC President has the power to terminate the complaint.

Time for resolution

Complaints are usually resolved with 3-6 months. However 12 months is not unusual. Anything over 12, and up to 24 months is highly irregular, but can occur. Latest statistics on conciliation indicate that 51% of complaints are resolved within 6 months and 93% of complaints are resolved within 12 months.

Costs

There are no costs associated with making a complaint to the AHRC, however there are some costs associated with the conciliation process if a person wants a legal representative present during the process.

Going to Court

If there is an unsuccesful conciliation or a terminated complaint, a person will be notified by the AHRC with a termination notice. A person can then make an application to the Federal Court of the Federal Circuit Court alleging unlawful discrimination (s46POAHRC Act). This is an entirely different process, and requires adherence to court rules for lodgement of an application. The application must be lodged within 60 days of the issue of a termination notice from the AHRC. A person would be best advised to seek legal advice and help in lodging an application.

Costs

There are many costs associated with going to court, including lawyers, filing fees, and court costs if the case is heard and the applicant is unsuccessful. In such a case, an applicant will often be ordered to pay their own and the respondent’s costs. If an applicant is successful, costs may still be incurred.

Which Act applies?

The RDA section 6A, the SDA sections 10 and 11, the DDA section 13  and the ADA section 12 all outline that the particular Act will override the State or Territory law to the extent that it is inconsistent with the Commonwealth Act. However, where a law of a State or Territory is capable of operating concurrently, the Commonwealth Act will not exclude or limit the operation of that law. Each of these provisions in the Anti-Discrimination Acts also provides the option of initiating an action under either Commonwealth or State or Territory laws.

Choosing the Act – Federal or State?

There is a significant overlap of the jurisdiction of both the State and Commonwealth Acts, and in many cases complainants will be faced with a choice between proceeding under the state legislation or the Commonwealth legislation.

In Tasmania, the wider range of grounds of the State legislation may mean that it will be better to proceed under the State legislation. People who are not covered by the state legislation (for example, Commonwealth Government employees) must proceed under the Commonwealth legislation.

Costs – Federal or State?

Costs are a decisive factor for many people in bringing a legal action. One of the attractions of the State Act is that it is meant to provide a no costs jurisdiction (unless the action is frivolous or vexatious, etc), whereas the Federal Court for the Federal Acts is a costs jurisdiction, and carries the costs of a federal legal action. In practice, this can make a big difference to ordinary people in deciding which Act to choose.

Fair Work Act 2009 (Cth)

Section 734 prevents a person from making a general protections court application in relation to conduct falling short of a dismissal where an application or complaint has been made under anti-discrimination law, and the complaint or application is still active. For example, this means that an employment discrimination issue that is brought to the attention of the AHRC under the complaints mechanism in relation to the DDA cannot also be made the subject of a general protections court application.

Another benefit of the Fair Work Act (FWA) is the reverse onus provision, section 361  in the FWA – if an applicant alleges discrimination it is on the respondent (employer) to prove that it wasn’t discrimination. This makes the FWA an attractive option for complainants.

Also, an action in court under the FWA only attracts costs to a party where the court is satisfied that:

  • the party instituted the proceedings vexatiously or without reasonable cause (s570(2)(a));
  • the party's unreasonable act or omission caused the other party to incur the costs; or
  • both the party unreasonably refused to participate in a matter before FWA, and the matter arose from the same facts as the proceedings

For actions before Fair Work Australia, each party must bear its own costs (s611).

Contacts and Resources

The Australian Human Rights Commission

Website: www.hreoc.gov.au
Email: complaintsinfo@humanrights.gov.au
Phone: 1300 656 419 or 02 9284 9888
Interpretation services: 13 14 50

The AHRC requests that a name, postal address, and if possible, a phone number be provided for correspondence or contact. The website provides extensive information on the complaints procedure.

Human trafficking: http://humantrafficking.org/countries/australia

Sex Discrimination Act chapter: http://www.hreoc.gov.au/legal/FDL/2011/4_SDA.pdf

Racial Discrimination Act: http://www.hreoc.gov.au/legal/FDL/2011/3_RDA.pdf

Disability Discrimination Act: http://www.hreoc.gov.au/legal/FDL/2011/5_DDA.pdf

Age Discrimination Act: http://www.hreoc.gov.au/legal/FDL/2011/2_Age.pdf

The full text of the Commonwealth Discrimination Acts are available at:

www.comlaw.gov.au

www.austlii.edu.au

The Tasmanian Anti-Discrimination Commissioner

http://www.antidiscrimination.tas.gov.au/

The Anti-Discrimination Tribunal

http://www.magistratescourt.tas.gov.au/divisions/Anti-Discrimination_Tri...

Defamation

Introduction

The law of defamation aims to protect a person's reputation against harm, while making due allowance for the need to preserve the right of free speech. Whether that balance is ever achieved is a matter of dispute. With the increasing presence of the internet in our every day lives, there are even more issues. The transborder nature of the internet has led to difficulties with defamation and jurisdiction. If someone in America is accused of defamation against a person in Australia, which jurisdiction and which laws govern that defamation? Every country has its own defamation laws, and court processes. The issue of where to hear a case, and by which laws the case should be decided adds extra cost and court time to a legal proceeding.

In 2006, Australian states enacted largely uniform defamation laws. This is known in each state as the Defamation Act 2005. The previous Tasmanian Act was the Defamation Act 1957. Now, the law concerning civil proceedings for defamation is contained in the Defamation Act 2005 (Tas) and for criminal defamation charges in Chapter XXIII of the Criminal Code Act 1924 (Tas). These provisions replace the common law with respect to defamation in this state, and repeal the 1957 Act. The discussion which follows concentrates on the civil remedies of a person who has been defamed. All sections referred to are from the Defamation Act 2005.

Perhaps the best general advice which can be given by way of introduction is that defamation actions are to be avoided. They are technical and require specialised professional services. The trial often takes place years after the defamation itself. For example, the case between Andrew Gunston and The Mercury. The defamation of which Gunston complained took place between May 2002 and August 2003. He was finally heard, and won record damages of $124,500, in the Supreme Court in April 2012. Before the enactment of new civil litigation legislation, and court attempts at streamlining the litigation process, such waits were not uncommon in civil cases such as personal injury or defamation.

In many cases, the matter is either not pursued or is settled with an apology or a retraction, although there is no right to either. The parties are left with legal bills to pay, which can be quite high. Occasionally, large awards of damages are made, but, relatively minor awards are far more common.

What is Defamation?

 Defamation can arise from written material or may be oral. To establish a ‘prima facie’ case of actionable defamation (whether libel or slander), the plaintiff must establish three things:

  • that the material was ‘published’ (the publication);
  • that the material identifies them (the issue of identification);
  • that the material is defamatory (the defamation issue).

Publication

Publication is established by proving communication of the material to someone other than the person defamed. This can be done by that person hearing spoken words or by their reception of visual material which can consist of written words or other images, such as television pictures, photographs or cartoons. But the important point is that the material must come to the attention of at least one third party. An insulting letter read only by the person to whom it is addressed is, therefore, not ‘published’, but, if addressed to the victim's firm and read by an employee, there is publication. Words broadcast on radio or television or printed in a newspaper and pictures so broadcast or printed will, obviously, be published.

Identification

Identification is usually established easily. The person aggrieved is often named in the publication, but this is not essential. If the publication refers to the plaintiff by necessary implication, or if the person’s identification with the events is a matter of notoriety, then identification can still be established. To say, for example, that all lawyers are thieves does not defame any one lawyer because no particular lawyer is named. However, to say that the lawyer for a certain person is a thief may well be held to defame that lawyer. Even though they are not referred to by name, there could be many potential recipients of the message who know the facts, and would identify that particular lawyer with it.

Defamatory Material

For material to be defamatory, it must be such that it is likely to disparage or discredit the person’s reputation. There are a number of ways this might occur:

  • expose a person to ridicule;
  • injure the reputation of the person about whom it is published; or
  • injure that person’s reputation in their profession or trade; or
  • cause ordinary persons to think less of them or to avoid them.

Something can be defamatory either:

  • in its natural or ordinary meaning; or
  • as a ‘true innuendo’.

The natural or ordinary meaning of words is the meaning which ordinary people would give them, whether directly or by inference, where no special knowledge is required for that inference to be drawn. For example, the words: ‘John Brown is a drunkard’ convey their message obviously. With a little thought, the ordinary person could derive the same message by inference from the words ‘'John Brown is to be found in the Brisbane Hotel most nights’.

On the other hand, a ‘true’ or ‘legal innuendo’ will arise where the words convey a special meaning only to persons possessed of special knowledge. For example, the words ‘John Brown is to be found most nights in a certain establishment on Brisbane Street’ would, perhaps, suggest the same characteristics in John Brown as the words cited in the preceding paragraph to those who happen to know that Brisbane Street is where the Brisbane Hotel is situated.

Defamatory material must injure the plaintiff's reputation. This depends on all the circumstances of the publication, including time and place – attitudes change over time, and influence whether a statement will be viewed as defamatory. It has been found in the past to be defamatory to say that a person is a ‘homosexual’, a ‘Communist’ or a victim of a rape or that a person has ‘scabbed’ on their union mates (in refusing to participate in an illegal strike) or even ‘has Negro blood’. Depending on the person about whom the suggestion was made and the context, it may not be the case that the same findings would arise today.

The injury to the plaintiff's reputation need not be intentional. A defendant could well think it a compliment to describe someone as ‘gay’, but a court would be entitled to find that this description was damaging to that person's reputation.

The damage can be quite accidental. A defamatory newspaper article about ‘John Brown’ could provoke a flood of actions from persons other than the real subject of the article. Similarly, a work of pure fiction could be held to have defamed a person who could show that they were likely to be identified as one of the characters.

Example – to who was the material referring?

The operation of these principles was illustrated in a case which came before the Queensland Full Court in 1987 (under repealed legislation). Mr. Warburton, then the Leader of the Opposition in the Queensland Parliament, said to a television reporter ‘just as the tide turned against the dictator Marcos, so too can Bjelke-Petersen and his corrupt government be swept from office’. This statement was broadcast on a news program. Mr. Bjelke-Petersen, then the Premier, sued Mr. Warburton and the television station. Plainly, he had been identified. The words had been published by Mr. Warburton, when he spoke to the reporter, and by the station, when it broadcast them. The real question was whether they meant that Mr. Bjelke-Petersen, himself, was corrupt, or whether they referred to the members of the Government, apart from him. It was held that the allegation of corruption was made against the Premier, as well as against his ministers, especially when it was considered that Mr. Bjelke-Petersen was compared with the former President Marcos ‘whose name has become a byword for corruption’. (Bjelke-Petersen v Warburton (1987) 2 Qd R 465).

Who Can Be Defamed?

Anyone can be defamed. The distinction is basically between real versus legal persons, people and organisations.

Changes to the Defamation Act mean that corporations have no cause of action for demation unless they are an excluded corporation at the time of the publication of defamatory material. An excluded corporation is one which either: employs fewer than 10 people and is not related to another corporation; or the objects for which the corporation was formed do not include obtaining financial gain for members or corporators (s9).

Unincorporated bodies may also defame and be defamed, but this depends upon the legal status of such a body. For example, trade unions and registered friendly societies can sue and be sued as such. An unincorporated club, on the other hand, could not sue but its individual members may be able to prove that each was defamed in a defamatory statement made about the club. If the executive of the cricket club publishes a letter defamatory of Bill Smith, Bill Smith may sue individually the people involved in the publication. If on the other hand, Bill Smith was to say of the club ‘The club is inefficient and corrupt’, officials responsible for the administration may claim that the statement reflects on their ability to do their jobs and may sue individually. In neither case may the club, as a club, sue or be sued.

Making Amends and Apologies

While making amends or offering an apology are not rights of a plaintiff, they are a legitimate means for a defendant to end litigation before it reaches the court. The offering and acceptance of amends means that an aggrieved person cannot assert, continue or enforce an action for defamation (s17). Amends are often called settlement offers. An apology, under section 20, does not constitute admission of fault, and while it does not affect the right to assert, continue or enforce an action for defamation, an apology is not admissible as proof of fault or liability in court (s20(2)).

Amends/Settlement Offers

Amends can be made generally, or in relation to specific defamatory imputations (s13). If two or more people published the matter in question, an offer of amends by one does not affect the liability of others (s13(3)).

Amends can be offered within 28 days of a publisher having notice from the aggrieved person; or if a defence has been served in the matter (s14). A concerns notice must be in writing, and indicate the defamatory imputations considered to be a matter in question (s14(2)). A publisher may request further particulars where an aggrieved person has failed to provide details of the defamatory imputations.

They have 14 days to give those further particulars (s14(4)).

Offers of amends must state the particular defamatory imputations to which it is directed; include an offer to publish a reasonable correction; include an offer to pay reasonable expenses incurred by the aggrieved person before the offer was made, and in considering the offer (see: s15).

Apologies

Apologies will bear as a factor in mitigating damages (s38(1)(a)). They cannot be submitted as evidence of admission of fault or liability by the defendant, to the court (s20(2)).

Presumptions

Once the plaintiff establishes that defamatory material which identifies them has been published by the defendant, certain presumptions arise.

It is presumed that the plaintiff suffered harm. At common law, a plaintiff alleging slander (oral defamation) was required to establish ‘special damage’ (that is, monetary loss). However, section 9 of the Act makes defamation actionable without proof of financial loss.

It is presumed that the plaintiff is of ‘good reputation’. It is for the defence to establish bad reputation, if it relies upon it.

Defences

Under the Defamation Act 2005, there are defences under the Act (ss25-33), common law defences, and defences available under other Acts (s24). The defences to defamation are as follows:

  • truth (s25)
  • contextual truth (ss25 and 26)
  • absolute privilege (s27)
  • qualified privilege (ss27, 28 and 30)
  • honest opinion (s31)
  • innocent dissemination (s32)
  • triviality (s33)

A person may suffer damage to their reputation, but may not win a defamation action if the defamer can rely on any of these defences.

Truth

The defence of justification was previously known as the defence of truth. Section 25 states that if a defendant can prove that the defamatory imputations of which the plaintiff complains are substantially true, then the defence of justification is made out. An example would be where if a newspaper began referring to a person as ‘Cheesy Toes’, imputing that the person had infected feet, a defence would be that the person had infected feet. 

Contextual Truth

The contextual truth defence has two elements. First it requires that the context in which the defamatory imputations appeared contained other imputations that were substantially true. Secondly, the defamatory imputations do no further harm to the plaintiff’s reputation because of the substantial truth of the contextual imputations (s26).

In the Caccavo case before the Tasmanian Supreme Court, the defendants raised the defence of contextual truth, stating that they had made factual assertions in several emails concerning the plaintiffs and their trade in live abalone to China, which included some issues with higher than normal mortality rates of shipped abalone. The defamatory imputation was that the plaintiffs had single handedly destroyed the live abalone trade in China for Tasmanian abalone farmers with their practices. The defendants asserted that there was sufficient contextual truth to other imputations around the actual practices of the plaintiffs businesses such that the plaintiffs’ reputations were not harmed by the alleged defamatory imputations. Although the case has been settled out of court it illustrates contextual truth: if the facts asserted necessarily lead to a negative assessment of a plaintiff, will defamatory imputations be absorbed as contextual truth because they can do no more harm than the facts?

Absolute Privilege

Absolute privilege and the publication of public documents cover parliamentary privilege, and court documents. Section 27 is absolute privilege, section 28 is the defence of publication of public documents.

Section 27 grants the defence of absolute privilege on certain occasions. Such occasions arise with the publication of documents in the course of the proceedings of a parliamentary body or an Australian court or tribunal. This might include where a parliamentary body, court or tribunal has ordered a document published or requested evidence be presented.

Publication of public documents provides a defence where the defamatory matter is contained in a public document or a fair summary of that document. To qualify as a public document, the document must fit the definitional criteria. A public document can be a report or paper of a parliamentary body, a judgment or determination of a court or tribunal, a record of votes, a document that is required to be published by the law of any country, or is required by parliamentary body. Other documents that qualify can be found at section 28(4).

Qualified Privilege

Qualified privilege (s30) requires that the plaintiff have published defamatory matter to a recipient where:

  • the recipient has an interest in having information on some subject; and
  • the matter is published in the course of providing that information; and
  • the conduct of the defendant was reasonable in the circumstances.

What will be taken into account in determining whether conduct was reasonable includes:

  • The extent to which the matter was of public interest; and
  • The seriousness of any defamatory imputation published; and
  • The nature of the business environment in which the defendant operates.

These are only three of the factors taken into account (s30(3)). The plaintiff can defeat such a defence if the plaintiff can establish that the publication was actuated by malice (s30(4)).

Honest Opinion

Honest opinion requires three primary matters to be proved by the defendant:

  • The matter was an expression of opinion of the defendant rather than a statement of fact; and
  • The opinion related to a matter of public interest; and
  • The opinion is based on proper material.

The defence is also available where the defendant is defending the opinion of an employee or agent (s31(2)), or where the defamatory matter published was the opinion of a third party (s31(3)). Proper material is material which is substantially true; or published on an occasion of absolute or qualified privilege (either under legislation or at common law); or was published on an occasion that attracted the protection of the defences of publication of public documents or fair report of proceedings of public concern (s31(5)).

Innocent Dissemination

The section 32 defence of innocent dissemination can be relied on where the defendant was a subordinate distributor. A subordinate distributor is someone who had no editorial control over the content of a publication, or was not the author or primary distributor (s32(2)). Examples of subordinate distributors include newsagents, electronic distributors, and librarians (s32(3)). The defence requires three factors to be present:

  • The defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
  • The defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
  • The defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

So, if the Gunston case was to be heard under the Defamation Act 2005, rather than the previous Act (as the defamation occurred before the enactment of the uniform legislation), the State Library, or a newsagent who regularly stocked and supplied The Mercury would qualify as a subordinate distributor.

Triviality

Triviality is a defence that can be raised where a defendant can establish that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (s33). Triviality is a threshold test that considers the nature of the allegation rather than the size of the audience. An example would be a statement that failed to cause any damage to a person’s reputation, such as a magazine saying that a seven times married man ‘ran through women like a herd of hungry goats on an island’.

Remedies

There are two remedies for defamation under the Defamation Act, other than criminal prosecution under the Criminal Code:

  • an injunction to prevent publication;
  • damages after publication;

An offer of amends can be made as a means of early resolution, without recourse to a court settled dispute, and so has been dealt with as a separate area.

Injunction before Publication

An injunction before publication is difficult to obtain. It will not be given where the party who intends to publish the material indicates that it will justify the defamation, that is, can establish a defence for the assertions which are made and that it is for the public benefit that they be published. An applicant must demonstrate sufficient seriousness not definite harm. A court will consider the interests involved in granting or denying an application for an injunction.

Unless there is a real likelihood that the material will be further and more widely disseminated, an injunction after publication is virtually useless as a remedy. The damage has already been done.

Damages

The Defamation Act sets out several rules in relation to damages.

  • The damages must bear a rational relationship to the harm (s34). This is a matter for the court to decide, and so far there are no Tasmanian authorities on what this section means.
  • The damages for non-economic loss are limited (s35);
  • Exemplary or punitive damages cannot be awarded (s37); and
  • There are several factors in mitigation of damages (s38).

Exemplary or punitive damages were traditionally used to discourage defendants from engaging in similar conduct in the future. The new Defamation legislation abolishes this practice under section 37.

As to damages for non-economic loss, this addresses itself to such things as mental harm, or pain and suffering. The maximum damages amount is $250,000, an amount that is indexed from time to time according to the Australian Bureau of Statistics (s35(4)). A court may still order aggravated damages beyond maximum damages amount if the court is satisfied that the circumstances of the publication warrant such an award (s35(2)).

Mitigatory factors in relation to damages include (s38):

  • the defendant has made an apology, or
  • published a correction.

Section 38 also provides that it is a mitigatory factor where another publication has published matter having the same meaning or effect as the defamatory matter before the court and the plaintiff has already recovered damages, or begun an action for that purpose, or received or agreed to or received compensation (s38).

The court can take other matters into account in mitigating damages and is not limited by section 38.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.