Author: Strategic Lawyers

Revelations from the Royal Commission into Institutional Responses to Child Sexual Abuse shocked and saddened the nation.

Now, almost one full year after the Commission handed down its final recommendations the Civil Liability (Institutional Child Abuse) Amendment Bill 2018 (Qld) is still yet to be passed by the Queensland Government.

The proposed legislation includes significant reforms aimed at ensuring victims of child abuse are able to take legal action against the institutions that fail them.

For example, the legislation states institutions which are not capable of being sued must nominate a defendant in legal actions against them.

The legislation aims to prevent the use of the controversial Ellis Defence where the Catholic Church successfully argued it was not a legal entity and therefore could not be sued.

Additionally, the new laws would mean there was no time limitation for victims to take legal action over child sexual abuse.

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It was also a key recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse that the Ellis Defence be repealed by government legislation before the National Redress Scheme – a mechanism through which victims of abuse will be able to access compensation – was implemented.

The Scheme is now underway but the laws still have not been passed.

The laws were proposed by the Queensland Greens with Maiwar MP Michael Berkman stating when he moved them in the Queensland Parliament: “The royal commission laid bare the horror that so many children had suffered for so long, and it described for all of us how that horror was magnified by decades of silence and denial by those in authority and barriers to obtaining justice.”

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“Among these are the barriers to civil litigation.

“This bill gives a voice to those children—now adults—by correcting that power imbalance between survivor and institution and, through the creation of tangible consequences for institutions, will contribute to preventing the same horror from occurring in the future.”

However, the laws are yet to be passed and have instead been referred to the Legal Affairs and Community Safety Committee.

Under Queensland law it is actually legal for teachers to smack students.

Section 280 of the Criminal Code 1899 (Qld) states:

“It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.”

This specific section of the Criminal Code draws from old English caselaw.

However, it was changed by the Queensland Government in 1997, under the leadership of the then National Party Premier Rob Borbidge.

The Borbidge Government added the words: “discipline, management, or control” which had the practical impact of widening the circumstances in which force could be used.

An examination of the political debate at the time shows the amendment attracted very little attention, or discussion.

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Since then it has remained untouched, however, it has been considered by the courts on at least one occasion.

In 2008 Australian Associated Press reported on a case in Southport Magistrates Court where a teacher who slapped a student in the face was found not guilty of assault.

It was reported that despite being cleared of assault the teacher’s contract at Upper Coomera State College was subsequently terminated because he had breached the code of conduct the Queensland Education Department had in place.

In essence this remains as the practical legal position today.

Teachers in public schools are legally allowed to physically discipline students – to the extent that they’re unlikely to face criminal conviction if the force they use is reasonable.

However, in practice the Queensland Education Department’s policies mean this is a sackable offence.

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It is a different story for teachers in private schools and as recently as 2009 at least two Queensland principals openly confirmed their institution was still utilising corporal punishment

In early 2017 there was a national push by former New South Wales MP, Alan Corbett to see the practice outlawed right across the country.

In an interview with the ABC Mr Corbett labelled the practice “unprofessional” and “archaic” and claimed it was in breach of the UN Convention on the Rights of the Child, the International Convenant on Civil and Political Rights and the Convention Against Torture – assertions which have not been court tested.

In contrast the idea of children being physically disciplined remains popular with a segment of the community and indeed a comment from a member of the public, at the bottom of the story featuring Mr Corbett’s remarks read: “’I’ve observed schools that have corporal punishment and those that don’t and I’ll vote every time in favour of those that do.”

The office of the Queensland Education Minister Grace Grace was contacted for this post and asked if the Minister believed the law should be amended. She did not reply.

Wow, where did October go? It’s only two months until Christmas and for the team here Strategic Lawyers the year has really flown by.

This past month has been huge for the firm with the launch of our radio jingle, as well as several media appearances – which we’ve linked to below.

Firstly our Principal Lawyer Justin Ireland appeared on Channel 7 to offer a legal opinion on whether or not a resort will be able to go ahead on Hinchinbrook Island.

You can view the story here on Facebook.

Then we spoke in newspapers right across the state about police fining cyclists for talking on their mobile phones.

You can read the coverage of that story here in the Sunshine Coast Daily, or in the Queensland Times here.

Grant Broadcasters which runs radio right across the state also picked up the story and they wrote it up in an editorial.

Later in the month we spoke to Channel 7 again, this time to talk about one of our client’s cases.

Ron Smith is locked in a battle with a boat broker after a yacht he bought broke down shortly after it was purchased.

You can see Justin explaining the case here on Channel 7, or read a story on the case from Grant Broadcasters here.

OVER the course of the 2017-18 financial year more than 45,000 people fronted the Queensland courts over a domestic violence order (DVO).

In fact, according to the most recent data from the Queensland Police Service more breaches of DVOs are being reported each year, than assaults.

Once a protection order is taken out in the Magistrates Court any parenting plan the Family Courts approve must be consistent with the protection order.

Further the Family Law Act 1975 (Cth) states any party to a family law proceedings must inform the courts if a protection order is in place, so, your solicitor and those acting for the other side need to tell the Family Court judge about the matter.

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What a Protection Order Means in terms of Access to Children

Australia’s family law places a great deal of emphasis of ensuring children have access to and spend time with both of their parents.

And only in very extreme circumstances is a long-term order which denies a parent any time at all with their child, put in place.

That said, in cases where a protection order is put in place the Magistrate who issued the order has found that on the balance of probabilities some form of domestic violence has occurred.

This doesn’t mean criminal charges have been laid in relation to that domestic violence – a lot of clients find the fact they have been accused of domestic violence but not charged with a criminal offence difficult to reconcile.

It just means the Magistrate was satisfied, on the balance of probabilities, that domestic violence occurred.

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In contrast in criminal matters the courts must be satisfied beyond a reasonable doubt that a criminal offence took place.

While it’s a Magistrate that has found in favour of a protection order being put in place, a Judge from the Family Court will decide upon any parenting order and the two interact with each other.

For example, under the Family Law Act 1975 (Cth) the courts have to apply a presumption that it is in the best interests of a child to have equal or shared time with both of their parents.

However, that presumption is rebutted if there has been abuse or family violence.

And any protection order may be used as evidence to argue it would not be in the best interests of the child for the parents to have equal or shared responsibility.

So, while a protection order does not definitively mean someone will lose access to their children it can, and often will, have an impact on the parenting orders the Family Court puts in place.

Every couple of days Strategic Lawyers is contacted by someone who has purchased an expensive item online only to find out it didn’t live up to their expectations.

In the vast majority of these cases the person involved has purchased the item – often a boat, or a car, or an expensive home-appliance – after seeing it on Facebook Marketplace, Ebay or Gumtree.

They have the contacted the seller, discussed its condition, gone over to have a look and paid for it.

Only later do the hidden defects emerge, requiring thousands of dollars-worth of repair bills, or meaning the item is completely useless.

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The buyer goes back to the seller who just says: “buyer beware” or in many cases something beginning with the letter F and a lot less polite.

And then, panic stricken the buyer starts picking over their messages and all-too-often they find the seller has cleverly declined to comment on the defects, or in some cases just outright lied.

At this point we get called.

And the simple legal fact we wish everyone knew is this: the Australian Consumer Law (ACL) does not apply to private sales.

The ACL only applies to cases where the seller is engaged in trade or commerce, that is to say when you buy the item from a business not, from an individual.

This means the consumer guarantees you get when you buy something from a shop, or a dealer like:

• Goods must be fit for any disclosed purpose
• Goods must correspond to the description of said goods
• Any express warranty must be complied with

Do not apply when you buy something via a private sale.

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That is unless the contract you have with the seller states the item you bought works, or is in good condition.

A lot of the time people think a contract needs to be a written document, but in fact, when there is no written contract the verbal agreement between the two people becomes the contract.

If someone has told you the boat, or the car, or the television works and it does not, that is in many cases grounds for rescission – i.e you give the item back and you get your money back.

However, proving exactly what was said, how it was said and when – all of which are legally important facts – can be very difficult.

And many of the sales we are seeing are for items costing close to $20,000.

Our Solution

Don’t be one of those left holding the bag when someone sets out to rip you off.

Come in, see our team of lawyers and for $550 we will draft you a contract for the sale setting out any known defects and ensuring the seller states it will work.

This means both sides have peace of mind – the seller knows you won’t come back making unreasonable demands and you know they’ve attested to the condition of the goods.

This gives you peace of mind and redress should your new purchase not be what you paid for.