Quick thread on the new federal wage theft offence, which started on Wednesday. It's s327A of the Fair Work Act 2009.

(There's no updated compilation Act yet. So, you need to read it in the 2023 'closing loopholes' amending Act: . Search for 327A.)classic.austlii.edu.au/au/legis/cth/n… Section 327A makes it an offence for an employer to engage in conduct that results in a failure to pay an employee (in full and on or before the required day) an amount the Fair Work Act or a fair work instrument requires the employer to pay to the employee.

“If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise?”: supremecourt.gov/opinions/23pdf… A rare SCOTUS constitutional law decision that seems directly relevant to Australian evidence law - a long-standing question in Australian evidence law about what happens when experts testify about things they’re told by others and that fed into the expert’s opinion.

“The study found 3.2% of men said they had had sexual contact with a person below 18 when they were over 18. The age of consent in Aust is 16 or 17, which researchers admit is a limitation of the study which was set up to align with international surveys”: theguardian.com/australia-news… Beats me why that’s an international benchmark - is 18 a common age of consent overseas? - but it means that the presentation of the study to and by Australian media needs to be done with incredible care, the limitation front-ended and caveats use of terms like ‘offender’.

“here we are: forced to respond to the bizarre claims that the Statement from the Heart is not actually the 439-word, one-page document that has been publicly available for seven years”: theaustralian.com.au/commentary/ulu… (I also didn’t pick ‘page-counting dispute about the most discussed and visually appealing public document in the past decade’ on my Voice bingo card. The upside of this silliness is that more people will read various docs about the Voice and related processes.)

“There was a real risk, the judge assessed, that the jury might assess one man’s complaint as stronger than it was because of the strength of the other complaint.”: thesaturdaypaper.com.au/news/law-crime…

It’s complicated, for sure, but Milligan leaves out all the key bits of Kidd’s reasoning. Here’s Kidd’s judgment and his summary of his key reasons: classic.austlii.edu.au/au/cases/vic/V….

The main point is that two of the three accounts couldn’t establish anything criminal or even improper, and effectively added nothing to the one clear account.

“in Dutton’s framing, in failing to play 20 questions and to legislate the body, it is the government arrogantly imposing the voice on the public.”: theguardian.com/australia-news…

Good piece, but long bow to link it to Howard and the Republic. “it’s a replay of John Howard’s tactic to kill the republican referendum by splitting the votes of those in favour into those who could or could not accept a particular model.”

Didn’t a constitutional convention opt for that strategy, not Howard?: en.wikipedia.org/wiki/1998_Aust…

Previous rule: classic.austlii.edu.au/au/legis/cth/c…

Amendment: legislation.gov.au/Details/F2023L…

https://twitter.com/paul_karp/status/1613759247569014787

EM says the changes are a harmonisation with Council of Chief Justices recommendations and support a fair hearing.

No external consultation because… parties aren’t affected.

“The prosecution encouraged the jury to centre its attention on Lehrmann – on the inconsistencies in his own statements and whether he was reckless to the issue of consent.”: theconversation.com/lehrmann-trial…

This is misleading in several ways. First, the dispute in the trial was about whether sex occurred at all, not whether Lehrmann was ‘reckless to the issue of consent’.

The prosecution’s focus was on proving that Higgins’ account - of waking to Lehrmann having sex with her - was true beyond reasonable doubt.

“The Herald Sun received an extraordinary legal letter on Thursday afternoon from Parks Australia – which oversees the Uluru-Kata Tjuta National Park – accusing Knight of breaching media guidelines with his cartoon in Wednesday’s newspaper.”: heraldsun.com.au/news/victoria/… “To comply with the EPBC Act, media guidelines, ICIP (Indigenous Cultural Intellectual Property) laws and show respect for Anangu land and culture, we ask that you remove any artwork breaching these conditions and showing Uluru.”

This Daily Mail article purports to set out the complete text of Drumgold’s statement yesterday: dailymail.co.uk/news/article-1… It’s also a compendium of relatively light-hearted moments in the trial that I haven’t previously seen recorded.

(As I noted in my Ouija Board book, humour is an important way of handling the stress of criminal trials.)

“The leak and Drumgold’s strong response suggest a serious rift has emerged between police and the DPP over the handling of the case.”: theguardian.com/australia-news….

Yep. If the cops or Drumgold are leaking, they should stop. Neither should be making any official comments either. “The piece makes no mention of the fact that it was a decision of the Australian federal police to lay charges.”

This is a recurrent issue and reflects a huge flaw in public prosecution. Why isn’t the DPP the formal decision-maker? What role does s/he play in police decisions?

“Given the serious health concerns that the DPP referenced today, obviously I'm going to be very cautious about what I say but I want to echo the prosecutor’s comments in recognising the grace, the bravery and the dignity that Miss Higgins has displayed.”: heraldsun.com.au/breaking-news/… This statement doesn't have the justification of assisting in explaining the DPP's reasons to discontinue, nor does it even seem to be directed to reducing the risks to Higgins. It's just a flat out message that Wong believes Higgins's allegation (as McCallum CJ explained.)

The ACT DPP's general prosecution policy has a section on publishing reasons for prosecutorial decisions: dpp.act.gov.au/__data/assets/….

(The ACT seems to be the only DPP who has such a policy. The rest only cover reasons given to complainants.) It says: 'where a person has been publicly committed for trial there will generally be no objection to the reasons for any decision not to proceed with such a trial being made public.'

Is that right? It's contradicted in the next sentence.

"I recognise that the unavoidable prospect is that Mr Dawson will probably die in gaol.": caselaw.nsw.gov.au/decision/184bc….

Unless he wins an appeal. Which this sentence - and the NSW ban on paroling one class of convicted murderers who maintain their innocence - makes more likely. twitter.com/i/web/status/1… "The fact that Lynette Dawson’s body has never been located or recovered is an aggravating circumstance of the offence of murder."

And also puts Dawson in that class, barring his parole unless he admits his guilt: classic.austlii.edu.au/au/legis/nsw/c….

“I’ve recently received compelling evidence from two independent medical experts that the ongoing trauma associated with this prosecution represents a significant and unacceptable risk to the life of the complainant": theguardian.com/australia-news… "The evidence makes it clear that this is not limited to the harm of giving evidence in the witness box."

This bit is important. But for that, the retrial could have gone ahead, and - if the medical evidence was compelling - could have done so with Higgins testifying again.

The ACT DPP has a policy on when it makes decisions to discontinue proceedings, one that seemingly applies to the decision announced today: dpp.act.gov.au/__data/assets/…

Its purpose is to 'ensure consistency, accountability and transparency' in such decisions. It applies only to decisions to discontinue a prosecution which involves a 'victim', a term that includes 'a complainant in a criminal prosecution conducted by the DPP', which includes Brittany Higgins.

“During the investigation and trial, as a sexual assault complainant, Ms Higgins has faced a level of personal attack that I have not seen in over 20 years of doing this work. She’s done so with bravery, grace and dignity...": theguardian.com/australia-news… (By contrast: "What can be known is that, somewhere in this debate, the distinction between an untested allegation and the fact of guilt has been lost. The Crown accepted that the Logie awards acceptance speech was unfortunate for that reason.": classic.austlii.edu.au/au/cases/act/A…

Well, this saves some time: beta.openai.com/playground/p/C… (Tldr: Can Lehrmann be charged again if the rape charge is dropped today?

Yes. Nothing's been resolved.

And no. Dropping the charge means the prosecution owns the publicity that will follow.)

Proposed NSW offence of 'abusive behaviour towards current or former intimate partners': nsw.gov.au/sites/default/….

Requires:
- course of abusive behaviour that reasonable person would consider likely to cause fear of violence or a severe adverse impact
- recklessness as to harm 'Abusive behaviour' means violence, threats, intimidation, coercion or control.

'course' means repeated or continuous behaviour, but can be spread out over time.

"All eight state and territory ministers are in favour of discussing a framework that would see each state streamline their abortion legislation and make the procedure more accessible and affordable for women." theaustralian.com.au/the-oz/news/au….

A referral? A model abortion law? "Queensland Minister for Women Shannon Fentiman said having a national agreement on standards would act as a bulwark against any future attempt to roll back abortion rights."

Federal legislation?

I don't understand any of this (legally or politically.)

"Mandatory minimum sentences are wrong in principle. They require judges to be instruments of injustice: to inflict more severe punishment than a proper application of sentencing principle could justify, to imprison when imprisonment is not warranted and may well be harmful"

https://twitter.com/SCVSupremeCourt/status/1547417766277578752

"Mandating imprisonment in this way must be seen to reflect the ascendancy of a punitive sentiment and a disregard of the demonstrated benefits of non-custodial orders and — in cases like the present — the vital importance of rehabilitating young offenders."