Archive for the ‘Newsletters’ Category

Queensland criminalises revenge porn

The issue of revenge pornography (‘revenge porn’) has received considerable attention in the press, not only in Australia but worldwide.

Broadly, revenge porn refers to sharing, revealing or distributing sexually explicit images or videos of a person through an internet service without that person’s consent, usually with the motive of causing humiliation, embarrassment and distress.

Whilst the conduct may occur in different circumstances and the motivations for distributing the images vary, the perpetrator is often a former partner of the victim, and the victim undoubtedly suffers long-lasting and traumatic effects.

Australia has a matrix of civil and criminal laws relating to image-based conduct over the internet. Although national laws presently exist to prohibit the use of a carriage service to offend, harass or menace another person, these laws have not effectively or specifically been utilised to target the issues associated with revenge porn.

Various state and territory governments are considering or have passed legislation that criminalises revenge porn, with Queensland now introducing new laws. The policy objective of the new laws is to fill a current gap by creating a specific offence regarding non-consensual sharing of intimate messages or threats to send intimate images. The offence relates to any intimate image no matter how it is captured or made.

New laws to criminalise revenge porn

The Criminal Code (Non-consensual Sharing of Images) Amendment Act 2019 incorporates provisions into the Criminal Code creating new offences.

Distributing an intimate image

A person who distributes an intimate image without the consent of one person in circumstances that would (reasonably) cause the other person distress will be guilty of an offence.

It does not matter whether the person distributing the image intends to cause distress or actually causes the other person distress.

Threats to distribute an intimate image or prohibited visual recording

A person who makes a threat to another person to distribute an intimate image or prohibited visual recording without the consent of the other person, in circumstances where the threat would (reasonably) cause distress to the person depicted (or person to whom the threat is made) and the threat is made in a manner that (reasonably) would cause the person to fear the threat will be carried out will be guilty of an offence.

It does not matter whether the intimate image or prohibited visual recording exists when the threat is made or whether the person who makes the threat intends to cause, or actually causes the fear.

In determining whether a person would reasonably be caused distress or fear the circumstances, as relevant to each offence, will be considered including:

  • the relationship, if any, between the parties;
  • the circumstances surrounding distribution of an intimate image;
  • the extent to which distribution of an intimate image interferes with a person’s privacy;
  • the circumstances surrounding the threat to distribute an intimate image or prohibited visual recording.

A child under the age of 16 years is considered incapable of giving consent.

Penalties

Offences under the new laws are punishable by up to three years’ imprisonment.

A court may also order the person convicted to take reasonable steps to remove, delete or destroy an intimate image or prohibited visual recording. Failure to comply with such an order is punishable by up to two years’ imprisonment.

The maximum penalty for the existing offences of observing or recording a person in breach of privacy and distributing prohibited visual recordings has increased from two to three years’ imprisonment.

What is an intimate image?

An ‘intimate image’ of a person is a still or moving image that depicts:

  • the person engaged in an intimate sexual activity that is not ordinarily done in public; or
  • the person’s genital or anal region, when it is bare or covered only by underwear; or
  • if the person is female or transgender or an intersex person who identifies as female, the person’s bare breasts.

The definition extends to images that are altered to appear as above or digitally obscured to portray that person in a sexual or intimate manner. Essentially, the definition captures images that are photoshopped or digitally modified if they otherwise represent the definition of an intimate image as described above.

What is a prohibited visual recording?

A ‘prohibited visual recording’ of a person is:

  • a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
  • a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

What is consent?

Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. The Act makes it clear that a person does not consent to the distribution of an intimate image if the person is under 16 years. A person does not consent if he or she is threatened or forced to do so.

Defences

It is a defence to a charge of an offence under the new laws if the conduct was for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct was, in all the circumstances, reasonable for that purpose.

Conclusion

The internet provides an efficient means of producing and disseminating information – once loaded images can leave a digital footprint and for the victims of revenge porn, long-lasting torment.

Australia’s laws have been hard-pressed to keep up with technology and the matrix between state and federal legislation to deal with illicit conduct over the internet is arguably inconsistent and patchy.

It is anticipated Queensland’s new laws will give victims and potential victims of revenge porn better protection and some redress in an area that has been notoriously difficult to regulate.

Victims of revenge porn should contact the Police and are encouraged to obtain referral from their general practitioner or support groups for emotional assistance.

If you have been charged with a criminal offence you should obtain professional advice so you understand your legal rights.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Centrelink Fraud

Centrelink fraud offences are among the most frequently prosecuted Commonwealth criminal offences. Sometimes the behaviour complained of is deliberate, but motivated by genuine financial hardship rather than greed. Sometimes it is quite accidental. Even individuals who have been inadvertently overpaid and are attempting to pay the money back may end up facing fraud charges. If you suspect that you are under criminal investigation for Centrelink fraud, you should seek immediate legal advice because there may be defences that can help you avoid criminal penalties including fines and imprisonment.

Centrelink Fraud Offences

Offences include:-

  • Failing to declare part-time earnings whilst on Newstart Allowance;
  • Failing to declare live-in defacto relationship whilst on Single Parenting Payment;
  • Obtaining a Disability Pension and failing to disclose full time employment;
  • Not declaring income from employment, investments or other sources;
  • Exaggerating a medical condition;
  • Submitting false or forged documents;
  • Obtaining payment for children not in your care;
  • Collecting rent assistance when rent is not being paid;
  • Using more than one name to access benefits; and
  • Over-claiming benefits without any present entitlement.

Centrelink Fraud offences are what are known as “full knowledge offences”. To establish that a crime has occurred, the prosecution must establish that the conduct was intentional and that the defendant knew or believed that he or she was not entitled to receive that money from Centrelink.

Defences and Mitigating Factors

  • Lack of knowledge or intention is the principal avenue of defence, but other circumstances may mitigate the penalties imposed. These include:
  • Personal financial hardship;
  • The amount of money obtained;
  • The length of the fraud;
  • False statements or any positive attempts to deceive (or the absence thereof); and
  • Any money paid back to Centrelink.

Whether the fraud was intentional or accidental, any overpaid entitlements will still have to be repaid.

If you are charged with Centrelink fraud, it is very important that you seek legal advice, especially if you have not previously done so.

There are four charges, with varying maximum penalties, that the CDPP commonly presses against alleged Centrelink fraud offenders:

 

  • Obtaining financial advantage (s135.2(1) of Criminal Code);
  • General dishonesty causing a loss (s135.1(5) of Criminal Code);
  • Obtaining a financial advantage by deception (s134.2(1) of Criminal Code); and
  • Obtaining property by deception (s134.1(1) of Criminal Code).

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

Buying and selling a property at the same time

Buying or selling property is widely accepted as one of life’s major stress factors. When you buy and sell property at the same time and try to complete both transactions together this can add considerably to the stress levels. This is known as a simultaneous settlement and is encountered often in the conveyancing process.

Why settle simultaneously if it is so stressful?

Most people are not in a financial position to buy a new property without first selling an existing property and rely on the funds from their sale before completing their purchase. Simultaneous settlements are ideal when the family home is sold (whether to upsize, downsize or relocate) and an alternate home is being purchased. If both transactions can settle at the same time, there are considerable financial and practical benefits:
• you only need to move once, saving time, removalist and / or storage costs;
• you won’t need alternate accommodation, saving on rental costs or avoiding the inconvenience of staying with family or friends until a new home is found;
• the loan for your existing home can be refinanced and replaced with a loan for your new property, in the same transaction;
• arrangements can be made to disconnect and reconnect services from your existing home to your new home, ideally, in one transaction.
What happens at a simultaneous settlement?

The sale of your existing property is completed at the same time as the purchase of your new property. These transactions are interdependent so need to be meticulously planned and coordinated – if there are delays or problems with one transaction then the other is also affected.
The circumstances of the other parties (i.e. the respective seller and buyer of your properties) are also relevant. If they are in a similar position, then their issues also become yours and a domino effect occurs.

On completion funds from the sale of your existing property are collected and, if a refinance is involved, applied towards your purchase. The mortgage over your existing property is released by your lender and a mortgage taken over the new property to secure the funds loaned.

Come settlement day, the transaction is usually orchestrated in a matter of minutes however the plan has been evolving for the past weeks or months.
Meanwhile, you have arranged for the disconnection and reconnection of services such as electricity and internet and await nervously with a moving truck full of furniture and a lifetime of memories, for the ‘green light’ from your lawyer.

The legal considerations
A simultaneous settlement has practical and financial benefits however it also has legal implications. If you choose to have your sale and purchase settle at the same time, your lawyer will advise you of the legal issues and assist in bringing the transaction together.
Once contracts exchange, the parties are legally committed to the transaction and face significant implications if they fail to proceed. For a purchaser, this generally means, at a minimum, forfeiting 10% of the property’s purchase price if the contract cannot be completed. Consequently, a purchaser should not commit to buying a property without assurance that the sale of an existing property is a ‘done deal’.

To protect your interests, a simultaneous settlement requires a simultaneous exchange of contracts with both providing for the same completion date. This is critical to avoid the risk of losing your deposit. Your lawyer can make the necessary arrangements and negotiate the appropriate conditions in the contract.
Alternatively, your lawyer may be able to negotiate the inclusion of a ‘subject to sale’ clause in a purchase contract if you haven’t sold your property yet. In most cases however, a vendor will not accept this, particularly in a competitive market where there are other buyers ready willing and able to enter an unconditional contract.
What are the options?

• Selling first and buying later may be a safer option for those on lower incomes or with less equity in their existing property. The down side of this is that you will need to arrange accommodation while looking for your new home. The pros are that the funds from your sale can pay out your mortgage with the balance going towards your purchase. If you have pre-approved finance from your lender you may also be in a more advantageous bargaining position in a competitive market.

If your buyer is not in a hurry to move into your existing home, you may even be able to negotiate a leaseback of your property until you find a suitable home.

If you need to move in a hurry for example, relocating for a new job, and you can’t sell quickly, renting your existing property on a short lease may also be a viable option.

• Buying first and selling later can be risky. Unless you are a cash buyer and / or own your existing property outright you will need to finance both properties. For most people this will require looking after two mortgages and / or obtaining a bridging loan which may not be an option for many people. It will however enable you to snap up the property you want when it is available and then reduce your financial commitments once your existing property is sold. It can also provide an opportunity to utilise market fluctuations to your advantage. If however holding two loans becomes increasingly difficult you may need to sell quickly accepting an offer below your expectations.

Conclusion

Your personal circumstances and the market should be considered when buying and selling property and choosing the option that is right for you.
The current market and property demand generally dictates how quickly you can sell and find an alternate suitable property. Your financial circumstances will also influence your options.
There is never a one-fit solution when buying and selling property at the same time. The most important thing however is to ensure that whichever option you choose you understand the legal and financial implications and are guided throughout the process.
A simultaneous settlement requires careful planning, good communication and negotiation skills and, importantly, a contingency plan. If one transaction falls over, then so does the other!
If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Will a criminal conviction affect my Visa?

Section 201 of the Migration Act 1958 states that a person who has been convicted of a criminal offence in Australia, and who was a non-citizen at the time that they committed the offence, can be deported in certain situations and applies to both permanent residents and temporary visa holders.

For a person to be ‘eligible’ for deportation, he or she must:

  1. Have been convicted of an offence and sentenced to a period of 12 months imprisonment or more; and
  2. Have resided in Australia for a period less than 10 years, or for multiple periods that total less than 10 years.

Section 501 of the Migration Act also gives the Immigration Minister power to cancel a person’s visa if they do not pass the ‘character test’ which includes having a ‘substantial criminal record.’

A person has a ‘substantial criminal record’ if they have been:

  1. Sentenced to a term of imprisonment of 12 months or more;
  2. Sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
  3. Acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
  4. Found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and, as a result, the person has been detained in a facility or institution.

If the Immigration Minister is satisfied that a person does not pass the character test because they have a substantial criminal record, the Minister must cancel their visa.

Alternatively, if the Minister ‘reasonably suspects’ that a person does not pass the character test, the Minister may cancel their visa – in other words, the Minister has discretion to decide whether or not the person should be deported.

What If I Don’t Pass the Character Test?

If your visa is cancelled due to your failure to satisfy the character test, you will become an ‘unlawful non-citizen,’ and will be immediately placed in immigration detention until you are deported or removed from Australia.

You will also be prohibited from applying for most types of visas while in Australia, and will generally be prohibited from returning to Australia in the future.

Will I Automatically be Deported if Sentenced to 12 Months Imprisonment or More?

If you have been sentenced to 12 months or more in prison, it does not automatically follow that you will be deported.

Rather, the Department of Immigration and Border Protection will consider a range of factors when deciding whether to deport you or revoke your visa.

These include:

  1. The nature of the offence;
  2. The circumstances of the offence;
  3. The magistrate or judge’s view of the offence;
  4.  The type and length of penalty imposed;
  5. Any evidence, or lack thereof, of rehabilitation;
  6. Prospects of reoffending;
  7. General deterrence;
  8. Criminal history;
  9. Public interest consideration;
  10. Family circumstances; and
  11. Australia’s international law obligations relating to refugees.

If the Department is considering deportation, an Immigration Officer will usually request further information.

If the Department decides that you are to be deported, you will receive a ‘deportation order’, or a ‘cancellation order’ if your visa is being cancelled.

Can I Appeal a Deportation or Visa Cancellation?

Depending on how the decision was made, you may be able to appeal the decision.

If the Immigration Minister signed a deportation order against you under section 201, you will be able to appeal the merits of the decision to the Administrative Appeals Tribunal (AAT).

You will also be able to seek a review from the AAT if a delegate of the minister decides to cancel your visa

If you decide to lodge an appeal to the AAT, you can ask for a ‘stay’ (suspension) of the deportation order until the review is completed. If the decision to cancel your visa has been made, you will have only 9 days from the date you are notified to seek a review from the AAT.

If, however, the Immigration Minister personally decided to cancel your visa under section 501, you will not be able to appeal the decision to the AAT. You can however, seek a judicial review from the Federal Court.

If you are a non-citizen and wish to receive case-specific immigration law advice, you may wish to consult a specialist Immigration Lawyer.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email info@brisbanemigration.net.au.

Visas and the importance of ‘good character’

To be granted entry to Australia whether temporarily or permanently, whether you are a main applicant or an additional applicant, you will need to pass the character test set out in section 501 of the Migration Act 1958.

This character requirement attaches itself to the type of visas which are applied through the Public Interest Criterion (PIC) 4001. The onus is on the applicant to demonstrate that they are of good character. Applicants who fail the character requirement will have their visa refused or cancelled by either the Minister for Immigration and Citizenship, or the Department of Immigration and Citizenship (DIAC).

Consequently, the DIAC will consider your past and any present criminal conduct along with your conduct in general, in determining whether you are of good character. This means you will be required to disclose information about your past conduct including criminal convictions or charges, and the refusal or cancellation of any previous visas.

According to recent news reports, following recent amendments made to the legislation late last year, the Minister has cancelled as many Visas over the last 3 months as were previously cancelled over the past three years!

What constitutes failure of the character test?

 The Applicant will fail the character test if:

  • They have a substantial criminal record
  • They have been convicted of an offence while in immigration detention, escape from immigration detention, during the period of escape from immigration detention or have been convicted of an offence of escaping from immigration detention
  • There is a significant risk that the person will engage in criminal conduct (such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community) or the person represents a danger to the Australian community.
  • Having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character.

What is a ‘substantial criminal record’

A person will be judged to have a ‘substantial criminal record’ if they have been sentenced to:

  • Death or life imprisonment
  • A term of imprisonment for at least 12 months
  • Two or more terms of imprisonment, where the total of the terms is two years or more

You will also be judged to have a ‘substantial criminal record’ if you have been acquitted of an offence due to unsoundness of the mind, or insanity and as a result have been detained in a facility or institution.

What happens to a person who is excluded from Australia?

In plain terms it is severe. Any person, who has their visa cancelled on the grounds of substantial criminal record, past and present criminal conduct, or past and present general conduct, will be permanently excluded from entering Australia.

Why the increase in Visa Cancellations for Character Reasons?

The increase in visa cancellation numbers is a government response to national security concerns especially in the areas of organised crime and counter-terrorism.

Prime Minster Tony Abbott recently said the government aims to target “organisations and individuals blatantly spreading discord and division” and “include stronger prohibitions on vilifying, intimidating or inciting hatred” and made specific mention of the “hate preachers”.

Whilst recent visa cancellations are focused on organised crime, sex crimes and terrorism, it is possible that any person with criminal convictions outside of these offences can have their Australian visas revoked.

Recent security concerns have heightened the level of border protection, it is likely more cancellations will occur. Naturally, it is a good idea for all visa holders and applicants to stay out of trouble with the law in order to preserve your life and residence in Australia.

The importance of legal experience

If you need to complete a Visa Application or have received a notice requiring a response from the DIBP you should seek legal help.

We are experienced in assisting applicants with visa applications for Skilled Migration including Independent and State Sponsored visas, state sponsorship applications, Family Migration visas as well as employer-sponsored visas. We also assist applicants who have health or character concerns in a visa or citizenship application.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

Estate planning for blended families

Most of us appreciate the importance of making a Will and having an estate plan that sets out how we would like to provide for our loved ones when we die.

If, like many Australians, you belong to a blended family, there are additional considerations when planning your estate. Most typical will be ensuring that the competing interests of children from past and present relationships are addressed, whilst ensuring a current partner is provided for.

Following are our top estate planning considerations for members of a blended family.

Make a family tree and identify potential issues

Because of the complexity of some blended families, the importance of making a family tree cannot be over-emphasised. The tree should identify immediate family members, former spouses, children from past and present relationships (biological, adopted and step-children), as well as anybody else who is, or has been, financially dependent on the Will-maker.

Making a family tree helps to:

  • consider the testamentary wishes of each partner and identify those they wish to benefit from their estate;
  • acknowledge the potential for disputes and family provision claims and, as far as practicable, safeguard against these;
  • identify those that may have a moral claim on the Will-maker’s estate.

Look at your major assets

Real estate and superannuation interests are often our most significant assets. Understanding some legal concepts regarding these assets can greatly assist with planning your estate.

Real estate

If you hold real estate as a joint tenant, the principle of survivorship applies. This means that your share of the property will immediately vest in the surviving joint tenant when you die no matter what your Will states.

If this is not your intention, you and your partner may consider severing a joint tenancy and instead holding the property as tenants in common. In this case, either of you may leave your share of the property to whomever you wish by a direction in your Will.

Your lawyer can advise and assist in severing jointly held real estate.

Superannuation

A common misconception about superannuation is that it automatically forms part of your estate. This is not the case. A superannuation fund is only permitted to directly pay a death benefit to a ‘dependant’ of the fund member or otherwise, to the estate.

A ‘dependant’ includes a spouse (including a de facto partner of same or opposite sex), a person with whom the fund member had an interdependency relationship, a child of any age or a person who is financially dependent on the member. A child includes a biological child, adopted child, step child and ex-nuptial child.

Fund members can choose who receives their death benefits by completing a Binding Death Benefit Nomination. This circumvents the trustee’s discretion and directs it to pay benefits to the dependant nominated by the member.

In a blended family, it may be appropriate for fund members to direct the trustee to pay all or some of their death benefits to their child or children to guarantee that they receive an inheritance immediately after they die. In this case members will need to consider whether there will be sufficient funds for the surviving partner as well as the tax implications. Advice should be considered from a lawyer or financial professional.

Consider different types of Wills

An example of a simple Will for a married couple is one that provides for the estate to go to the surviving partner in the first instance and then upon his or her death, to their children. This may not be ideal for blended families as the children of the deceased partner will need to wait until the step-parent dies before inheriting under the Will. There is also a risk that the surviving partner may subsequently change his or her Will to the effect that the children of the partner who dies first miss out altogether.

Different types of Wills can be used to avoid these issues and your lawyer can advise on the most appropriate for your situation. The following are some examples.

Testamentary trust

A testamentary trust is a trust contained in a Will that is created upon the testator’s death. In the case of a blended family, a separate trust can be created for each child which effectively separates assets allowing each beneficiary to receive and deal with their respective share via an appointed trustee (which may or may not be the beneficiary).

Testamentary trusts can also provide for asset protection and have taxation advantages. They are however complex and require ongoing management. Consequently, the benefits should outweigh the costs of creating and administering the trust.

Mutual Wills Agreement

A Will may leave assets to each partner and, on the surviving partner’s death divide the combined assets between all children (from former and present relationships). This may technically be ideal however there is nothing to prevent a surviving partner altering his or her Will after the first partner dies, effectively leaving out a child or children of the first-deceased partner. A Mutual Wills Agreement can help to prevent this.

Essentially, the partners agree on the beneficiaries (for example children from both partners’ past and present relationships) and how their assets should ultimately be distributed. This is reflected in reciprocal Wills and a binding agreement to the effect that neither party will alter his or her Will after the other’s death.

The surviving partner has an obligation to hold the assets on trust for the beneficiaries named in the Will and is bound by that agreement. Those benefiting under the Will should be aware of the agreement so enforcement action can be taken if necessary.

Conclusion

Effective estate planning takes time and careful consideration. Every family is different and there is no one perfect solution. Talking to an estate planning lawyer helps to identify the potential issues that may arise and to devise strategies to address these issues to ensure that your intended beneficiaries are protected when you die.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Protection from Cyberbullying – rights & remedies

‘Bullying’ is behaviour, whether physical, verbal, psychological or social, that is directed towards a person or group, with the intention to cause harm or fear. When this conduct is carried out using information and communication technology (such as over the internet or via a mobile phone), it is referred to as ‘cyberbullying’.

Depending on the nature, repetition and severity of the behaviour, cyberbullying may constitute a criminal offence.

When is cyberbullying a crime?

Under national laws, the Commonwealth Criminal Code Act 1995 provides that it is an offence to misuse telecommunication services. The ‘use of a carriage service in a way that reasonable persons would regard as being…menacing, harassing or offensive’ is an offence which attracts a penalty of imprisonment for up to three years.

A ‘carriage service’ includes the internet and mobile phone networks.

Consequently, although ‘cyberbullying’ is not specifically defined as an offence under national law, there are various behaviours that could be recognised as an offence, such as using a carriage service to:

  • make intentional threats to hurt a person or damage property in circumstances where the threat frightens, intimidates or annoys that person;
  • stalk a person – repeated unwanted attention that frightens or intimidates a person, such as unwanted emails, phone calls or text messages;
  • menace, harass or seriously offend a person – sending offensive messages or making posts that cause a person to feel anxious, humiliated or disgusted;
  • defame a person – publishing / posting false information about somebody else with the intention that it causes serious harm;
  • encourage somebody to suicide.

It is also an offence to access another person’s internet account without their consent.

In addition to Commonwealth laws, Australian states and territories have criminal laws that could apply to cyberbullying. These offences generally target stalking, harassment, threatening or intimidating conduct and defamation. Many of these laws were originally aimed towards domestic violence or relationships where there is an imbalance of power, however, in a technological environment, may extend to cyberbullying in certain circumstances.

Various jurisdictions have also introduced, or are in the process of amending or introducing, legislation to target more specific forms of cyberbullying such as the non-consensual sharing of intimate images (or ‘revenge porn’). These laws generally create offences that criminalise the non-consensual recording and threat or actual distribution of intimate images. The terminology and provisions vary between jurisdictions however persons convicted of offences under these laws may face heavy monetary fines and possible prison sentences.

What are your rights if you are cyberbullied?

You have a right to feel safe and not be bullied. There are things that you can do to protect yourself from a cyberbully.

Initially, you could ask the person responsible for the offending material to delete it.

In regard to social media websites, you can usually report bullying posts to the website administrator who will remove offensive material if it violates that website’s terms of use. Also, most social media websites enable you to block someone from contacting you.

If you are receiving bullying phone calls or text messages from someone you may be able to block them from contacting you using your mobile phone settings. You could also complain to your mobile network provider (eg Telstra, Vodafone, TPG or Optus). Your provider may decide to send the cyberbully a warning letter or suspend their phone number or terminate their contract.

If the above does not resolve the problem and you continue to feel that you are being cyberbullied, you should obtain legal advice as soon as possible.

You should keep any evidence of cyberbullying. For example, record the dates and times of any harassing phone calls, or take a screenshot (or print) bullying messages or posts. Your legal adviser can then tell you whether the conduct is likely to be considered criminal. (It also helps prove who was the source of the bullying and its exact nature.)

In the first instance, your legal adviser may decide to write to the person or people involved telling them that their actions could be a crime and letting them know that you will consider going to the police if they do not desist in their conduct. Often, the issue of a letter from a law firm which sets out the potentially criminal nature of the conduct may prompt a perpetrator to re-think his or her actions.

Remedies for cyberbullying

When cyberbullying involves making comments about you or posting pictures which damage your reputation, you may be able to sue the cyberbully for defamation or take other legal action against the cyberbully to obtain an award of damages. You should obtain legal advice if you wish to pursue these actions.

If you are cyberbullied by way of unwelcome sexual attention, sexual threats or discriminatory comments made by someone at your workplace or educational institution, you may be able to complain to your state or territory anti-discrimination body or the Australian Human Rights Commission.

Consequences of cyberbullying

The consequences of cyberbullying can be very serious. In addition to possible criminal charges being laid, a cyberbully may need to answer to claims for compensation and / or defamation.

In addition to phone network providers and website administrators suspending or cancelling a user’s account, they may decide to report that user to the police.

Most education providers and workplaces have anti-bullying policies in place to deal with cyberbullying. Cyberbully workers or students may be dismissed, suspended or expelled.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What if the Police turn up at your front door?

The criminal process starts with the investigation of an actual or alleged crime. The power for Queensland police to search premises, question, arrest and / or detain a person comes from the Police Powers and Responsibilities Act 2000 (Qld).

These rules aim to balance the need for law enforcement with the protection of an individual’s civil rights. Being questioned and requested entry to a private residence by a police officer can be daunting and many people are unfamiliar with their rights when this happens.

This article explains a person’s fundamental right to silence and the circumstances under which police officers have the power to enter and search private property or to arrest a person of interest.

The right to remain silent

Understanding the right to silence is important for anybody involved in a criminal investigation. Generally, anything said to a police officer at any time may be used as incriminating evidence. What is said can also determine whether or not a person is charged or arrested.

Apart from some exceptions, a person has a fundamental right to remain silent whether they are stopped in public, have agreed to attend the police station or have been arrested.

Exceptions include answering basic questions such as a person’s name and address (in this case the police must warn a person it is an offence not to give the correct name and address) and place and date of birth (for drug-related matters), or when somebody is suspected of committing a traffic offence.

A person may also be required to disclose their identity and assist a police officer who believes on reasonable grounds that the person can help with enquiries regarding an alleged crime because the person was within its vicinity.

Generally, the police may approach and ask questions at any time however a person has the right to find out why they are being asked questions. If in doubt, the person should obtain legal advice.

Powers of entry and arrest

What are a person’s rights when a police officer requests access to private property? Are they obliged to let the police in? What if the police officer asks for the occupier’s son or daughter? The answer depends on the circumstances and whether the police officer has or is required to have a warrant.

The starting point is that police powers of entry are generally confined to emergency situations, for the purposes of arrest or detention, or to execute a warrant. If the police arrive on private property unannounced or uninvited, the reason for their attendance should be ascertained before allowing entry.

Warrants

A warrant is a document authorising the police to search a person, home or motor vehicle or to arrest a person and / or detain that person in custody. Anything found during a search warrant may be retained by the police.

If the police suspect that somebody with whom a person resides or is visiting has committed an offence, a search warrant may be obtained to search the premises and seize any items, or to arrest the person.

If the property is occupied the police officer must provide the occupier with a copy of the warrant. It is important to read the warrant carefully to confirm its scope. The action that follows will depend on the circumstances and the type of warrant that has been issued. A person in these circumstances should remain calm, assertive but cooperative.

A search warrant must state brief details of the alleged offence to which the warrant relates or the proceedings or legislation authorising the warrant, the evidence or property that may be seized under the warrant and the day and time the warrant expires. If the warrant is to be exercised during the night, the permissible hours that the property may be entered should be also be included.

An arrest warrant may only be issued if there are reasonable grounds for suspecting that the named person committed an offence and, for an offence other than an indictable offence, a court attendance notice to appear before the court would be ineffective.

The arrest warrant must include the name of the applicant, his or her rank, registered number and station, a statement to the effect that the police officer may arrest the person named in the warrant, and particulars of the alleged offence.

Police searches and arrests without a warrant

Police officers may enter any premises without a warrant to prevent domestic violence, to investigate traffic offences (for example to take a prescribed alcohol reading), to apprehend somebody who has escaped from custody or from being arrested, to execute an arrest, to reach a crime scene or to shut down an out-of-control event.

An arrest without a warrant may be executed if it is reasonably suspected that a person is committing, or is about to commit, an offence and the arrest is reasonably necessary to:

  • prevent further offences being committed;
  • identify the person arrested;
  • ensure the person appears in court;
  • preserve evidence or prevent the person concocting evidence;
  • protect a person (including the person arrested) from injury or harm; or
  • detain a person for questioning.

The police officer must make it clear that the person is being apprehended and tell the person why he or she is being arrested.

A valid arrest allows the police to question and identify a suspect. However, unless a formal arrest is made a person is not obliged to accompany a police officer. Arresting a person for investigatory processes only is prohibited.

Additional considerations for young people

There are additional protective provisions to protect young people confronting the criminal justice system. Generally, persons who are under 17 years of age must be accompanied by a support person when being questioned about a serious offence. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the young person assert his or her rights. A support person may be the child’s parents, guardian, lawyer, relative, friend or somebody working in an agency that deals with the law.

A statement or admission made to a police officer during an interview is inadmissible in court unless the young person was accompanied by an independent adult when making that statement.

Summary

Police officers have the necessary search and arrest powers to assist in law enforcement. These should be balanced with a person’s civil liberties.

Being approached by a police officer may be daunting however it is wise to stay calm, ask questions, and take notes of the reasons given for the police visit.

If someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

 

 

Sexting – what are the legal ramifications?

“Sexting” is the term used for the communication or distribution of sexually explicit (sensual, provocative or nude) photos or videos through text messages, internet posts, chat rooms or other social media.

Sexting may constitute a crime when it involves people under 18 years of age, regardless of whether or not the person depicted in the communication agreed to be involved. Sexting involving people of any age can also be a crime where the images are considered offensive or the sexting threatens or harasses a person.

Child exploitation and pornography

Voluntary sexting between teenagers may seem like typical explorative behaviour however the conduct could have serious criminal implications when involving persons under the age of 16 and / or 18 years of age.

It is an offence to produce, possess or distribute material that is considered to be child pornography or exploitation. Although sext messages may be sent between two consenting persons with the intention that they are not shared, this is not always the case.

The Queensland Criminal Code 1889 (Qld) contains several offences involving children under 16 years of age. These include:

  • making, or involving a child in making or attempting to make child exploitation material;
  • possessing child exploitation material;
  • distributing child exploitation material; and
  • taking an indecent photo, visual image, or recording of a child without legitimate excuse.

Child exploitation material is material that is likely to be offensive to a reasonable adult and which describes or depicts a child who is, or apparently is, under 16 years of age:

  • in a sexual context or engaged in a sexual activity;
  • in an offensive or demeaning context;
  • being subject to abuse, cruelty or torture.

These categories of offences may occur within a ‘sexting’ environment, attracting penalties ranging from 5 to 20 year’s imprisonment.

Child pornography includes an image, whether real or photo-shopped, or a video or cartoon of a young person that is considered ‘offensive to the average person’.

The requirement for the image to be ‘offensive to the average person’ is important as it distinguishes child pornography from, for example, a snapshot of somebody’s baby having a bath.

Child pornography could include a picture of a child posing in a sexual or provocative way, showing their private parts (genitals, anus or breasts), participating in a sexual act or being in the presence of somebody else engaged in a sexual act or pose.

It is illegal to request, create, receive and retain, send, post, or upload to the internet such images. Consequently, many on-line nude or explicit shots may potentially constitute an offence under these laws.

National laws

Under National (Commonwealth) law, it is a crime to access, possess or distribute ‘child pornography material’. There are also various offences which relate to the use of a ‘carriage service’ (including the internet or mobile phone networks) for the transmission of child pornography.

These National laws provide that a person under the age of 18 years cannot consent to sexting – penalties of up to 15 year’s imprisonment can be imposed.

Possible consequences of sexting

Given the broad operation of both Queensland and National law, people who send provocative or naked images or videos of themselves or others under the age of 18 years, even in private phone messages or emails could be breaking the law.

The penalties for offences involving child exploitation / pornography, whether under Queensland or National law are severe and a person under investigation or charged with such an offence should obtain legal advice immediately.

Generally, a person who is 18 years or older and found guilty of a child pornography or indecency offence may face registration on the Australian National Child Offender Register as a sex offender.

Registration as a sex offender carries onerous responsibilities to regularly report to the police and provide details regarding changes in personal circumstances such as relocating or changing jobs. Offenders must also give details of their email addresses and social media accounts. Registration as a sex offender will prevent a person from working with or supervising children or volunteering with organisations involving children such as coaching junior sports.

Police and prosecutors have discretion regarding whether they charge or prosecute people for certain crimes. This discretion may be exercised when there is an element of innocence related to the sexting. Age considerations may also influence the decision to prosecute for an offence arising from sexting activity.

However, where there is wide distribution of offensive material that has caused significant harm and distress, it is more likely that criminal proceedings will be taken. Sexting that leads to humiliation and bullying can have a devastating impact on a young person’s life.

Privacy, harassment and the internet

Sexting involving persons of any age may be considered an offence related to ‘recordings in breach of privacy’ under the Criminal Code 1899 (Qld).

It is an offence for a person to observe or visually record another person, when that person is engaged in a private activity or in a private place, without that person’s consent. Private activities include undressing, showering, using amenities such as a public toilet or change room, or engaging in sexual intercourse in a place that would normally be considered private.

Recording or photographing another person’s genitalia or anal region, whether or not covered by underwear, is also an offence. The maximum penalty for such offences is 2 year’s imprisonment.

Sexting (at any age) may also constitute harassment, stalking or indecent use of an internet or mobile. Examples include continued requests for a person to send a naked photo, threats to expose and distribute a naked photo of a person without consent, or continually forwarding explicit photos to somebody. These activities, when causing a person to feel humiliated or threatened, constitute an offence with a maximum penalty of 3 year’s imprisonment.

Legal advice

Images seldom disappear from the internet – once loaded there is little control over their subsequent dissemination. What may start off as a joke can soon turn into something very serious.

Persons charged and convicted with a sexual offence risk significant penalties including being recorded on the Child Protection Offender Register. The likely repercussions are an adverse impact upon a person’s reputation, career, relationships and travel plans.

If you are aware of someone who is concerned about a sexually explicit photo of themselves that might be on another’s phone, computer or online, or worried that they have a sexually explicit photo on their phone, computer or online, tell them that they should obtain legal advice without delay.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au

Marijuana and the Law

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simplistic terms – no! Marijuana (or ‘cannabis’ as it known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from state to state.

We have set out below the state by state position so that the bigger picture of laws relating to cannabis in Australia can be shown.

New South Wales

  • Any cannabis offence is a criminal offence and therefore can carry a criminal record.
  • Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
  • Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

  • Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
  • It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

  • Possession and use of cannabis is a criminal offence in Queensland.
  • A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

  • Cannabis offences are criminal offences in Western Australia and Western Australia has some of the toughest laws in Australia regarding cannabis use.
  • A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

  • Possession of cannabis carries a criminal charge in Tasmania.
  • A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
  • The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

  • Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
  • Persons who are found to have up to 100 grams of cannabis, 20 grams of hash resin, one non-hydroponic plant (which means it is grown in soil) or smoking equipment are issued with a fine of up to $150 and given 60 days to pay the fine.

Northern Territory

  • Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
  • Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

  • Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
  • Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

 

Cannabis or Marijuana is not legal in any state or territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is no part of Australia where marijuana and its products are legal to grow, possess or sell. When examined on a state-by-state basis, it is clear that while in some states and territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.