A snapshot of challenges and changes in the legal system in Queensland: June and July 2018

By Ms Zoe Rathus AM,
Director of Legal Clinic

One of the pleasures of being an academic is the opportunity to contribute to and participate in community and academic events dealing with critical current issues. Over the last few weeks I facilitated a community discussion about domestic violence and the legal system and attended a seminar about the tragedy of Indigenous women’s incarceration in Queensland and the launch of a service to educate relevant people about new laws protecting sexual assault counselling notes from being revealed in Queensland courts by way of subpoena.

Red Rose Foundation Seminar: Challenge the Legal System

The Red Rose Foundation is a community organisation dedicated to reducing the number of deaths caused by domestic and family violence. Its mantra is “change the ending” and the seminar held in June aimed to collect information and ideas from a wide range of people working in the domestic violence sector. The keynote speaker was Magistrate Linda Bradford-Morgan who sits in the Domestic Violence Court. She drew attention to the reasonably new section in the Criminal Code which makes it an offence for a person to choke, suffocate or strangle another person without that person’s consent when they are in a domestic relationship.[1] This section was inserted in the Criminal Code as a result of a growing understanding that attempted strangulation is often a flag for lethality in domestic and family violence situations. Her Honour suggested that a definition of strangulation was required and that the issue of consent can raise complex evidentiary problems in cases involving violence between intimate partners.

Other speakers at the forum included researchers at the Domestic and Family Violence Death Review Unit in the State Coroner’s Office, members of the Queensland Police Service, solicitors in private practice, Sisters Inside and the Women’s Legal Service.

An ongoing issue is the extent to which cross applications are still taken out in cases using the Domestic and Family Violence Protection Act.[2] This occurs where a victim of domestic violence seeks legal protection by taking out a domestic violence order and then the perpetrator of violence also applies for an order claiming that the other party has perpetrated violence. When mutual orders are made, at a practical level, the protection offered to victims is rendered rather useless and the true victim loses both their protection and their faith in the legal system.

More information about the Red Rose Foundation.

Law Futures Centre and Caxton Legal Centre: System Failure — the Overrepresentation of Aboriginal and Torres Strait Islander Women in Prison

On 19th July the Law Futures Centre, together with Caxton Legal Centre hosted a seminar dealing with the overrepresentation of Aboriginal and Torres Strait Islander women in Queensland prisons. It was facilitated by award-winning author Melissa Lukashenko, a Goorie woman of Bundjalung and European heritage. The speakers were Magistrate Jacqui Payne, Antoinette Braybook,[3] CEO of Djirra (formerly the Aboriginal Family Violence Prevention and Legal Service Victoria) and Neta-Rie Mabo, from Sisters Inside, who works with young people in detention. Alarmingly she spoke of Indigenous girls as young as 11 in detention in Queensland.

Later this year Sisters Inside will host a further conference on imagining the abolition of prisons.

The statistics demonstrate a set of social issues requiring urgent and thoughtful attention. Aboriginal and Torres Strait Islander women are only 2% of the Australian adult female population but comprise 34% of women in prison. They are ‘the fastest-growing cohort of prisoners in Australia, with imprisonment rates growing faster than both Indigenous men and non-Indigenous women’ and are often imprisoned for minor offences.[4]

Counselling Notes Project

An important collaborative project between the Women’s Legal Service Qld (WLS) and Legal Aid Queensland (LAQ) was launched by the Attorney-General, the Hon Yvette D’Ath MP, on 17 July at the offices of LAQ. The Counselling Notes Protect Service is a new free legal service to provide advice, assistance and representation under new laws in Queensland which provide protection from having to produce counselling records of victims of sexual assault in Queensland courts in certain circumstances. The laws are a result of amendments to a number of pieces of legislation[5] and were proclaimed in December, 2017. The privilege in relation to such notes is triggered when a victim of makes a complaint of a sexual assault offence to the police or raises such an offence in domestic violence court proceedings.

It has taken over 20 years to achieve these reforms. The need to develop a legislative framework for dealing with subpoenas to produce sexual assault counselling notes became a national discussion in 1995. At that time Di Lucas, from the Canberra Rape Crisis Centre, was jailed by a New South Wales magistrate for contempt when she refused to comply with a subpoena to produce the counselling notes.[6] The subpoena had been issued by defence lawyers seeking, no doubt, to cast doubt on the credibility of the complainant.

Legal Aid Queensland information on protecting sexual assault counselling records.

[1] Queensland Criminal Code s 315A

[2] Domestic and Family Violence Protection Act 2012 (Qld)

[3] https://indigenousx.com.au/antoinette-braybrook-its-time-to-listen-to-and-value-aboriginal-and-torres-strait-islander-womens-voices/#.W1WLh8J9haY

[4] D Kilroy, ‘Women in Prison in Australia’, Current Issues in Sentencing Conference, National Judicial College of Australia and the ANU College of Law, 2016, <https://njca.com.au/wp-content/uploads/2017/12/Kilroy-Debbie-Women-in-Prison-in-Australia-paper.pdf>

[5] Evidence Act 1977, Justices Act 1886, Domestic and Family Violence Act 2012 and the Criminal Code.

[6] A Athemer, ‘“Sit Down Girlie”: Legal issues from a feminist perspective’, (1996) 21(1) Alternate Law Journal 40.


This article has strong adult themes and subject matter that some audience members may find confronting.
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