Historical gay convictions set to be expunged in bill being considered by committee

Two men stand together holding hands in the dock in a Queensland District Court in the late 1980s – their only crime is being in love.

In a shameful episode from the state’s history, gay people were prosecuted for a range of offences including indecency, unnatural offences and sodomy, until homosexuality was decriminalised in 1991.

John and John were in a committed relationship for 15 years, one had served his country in Vietnam, and they loved each other dearly.

One day, police came to their home on the Gold Coast to investigate an unrelated and unproven matter.

While there, the officers noticed photos of them on the wall, holding hands, with their arms around each other.

The men denied taking part in the unrelated matter and said they were “homosexual”.

They were taken back to the police station, where they were individually questioned, including what sexual positions they used and what they “permitted and committed” against each other in the relationship.

As a result, they were charged with offences of gross indecency.

Queensland Law Society immediate past president Bill Potts recounted the case to a Parliamentary committee considering a bill which would allow people to apply to have the historic charges expunged from their records.

Mr Potts, a criminal defence lawyer, said he acted on behalf of the couple in 1987-1988, and they had since died.

“There was no complaint, there was no witnesses, there was no person harmed, yet they found themselves standing in a dock in the District Court holding hands and being convicted of these terrible offences,” Mr Potts said.

“It was a shameful moment, both in my career and in their lives, more importantly.”

Mr Potts said there was a public furore surrounding the case.

“The name calling that they received as they entered the courtroom and left together – proudly,” he said.

Mr Potts said he was proud to speak to the committee to redress the wrongs.

“Does the bill have faults? Yes. Would I like compensation? For some of these people, I think that’s fair,” he said.

“It [the bill] is symbolic, it is brave and it is the right thing to do.”

It is estimated that over 95 years, 464 people had been charged under the laws.

In May, Premier Annastacia Palaszczuk apologised to people charged under historic gay sex offences.

Brisbane LGBTIQ Action Group spokesman Phil Browne said the impacts were severe for people charged with the offences.

“People with these convictions for consensual activity remain convicted criminals,” Mr Browne said.

“They can’t apply for many jobs or travel to certain countries.

“They may have endured public arrests, leading to being fired, shunned by family and friends, kicked out of accommodation, named in newspapers and even feeling they were run out of town.

“Removing these convictions can assist to repair the lifelong trauma these people have endured.”

Human Rights Law Centre lawyer Lee Carnie said many men were arrested at gay ‘beats’, where they met up late at night to have sex in toilets, cars or in parks.

“These men were arrested by police officers deliberately patrolling these beats,” she said.

Alan Raabe has lived with a criminal conviction since 1988, when he fell victim to a police sting targeting homosexual behaviour in Cairns.

He brushed the groin of an undercover police officer, who had lured him into a dark park late at night.

Mr Raabe was charged with aggravated sexual assault and subsequently convicted.

He told the committee he had “100 per cent support” for the reforms, and believed he was the only person charged to speak out publicly.

“I think this is possibly an indication of the fear and the shame that still surrounds this to this very day,” Mr Raabe said.

“To have these crimes expunged will go a huge way towards to dealing with this.”

Queensland AIDS Council vice president Peter Black said the laws marginalised members of the LGBTI community and made it even more difficult to cope with the HIV/ AIDS epidemic.

The Legal Affairs and Community Safety Committee is due to report by July 14.

Cancellation of visas for those who commit crimes in Australia

Non-citizens: Can I remain in Australia if I have a criminal conviction?

For non-citizens, including permanent residents and special category visa holders (New Zealanders), having a criminal conviction may lead to deportation or involuntary removal from Australia.

A criminal conviction (even if no conviction is recorded) may also affect those on work or travel visas.

What is the “character test”?

Section 501(3A) of the Migration Act 1958 (Cth) states that the Minister must cancel a visa that has been granted to a person if the person does not pass the “character test”.

A person will fail the character test if:

  • the person has a “substantial criminal record” or they have been convicted of a sexually based offence against a child; and
  • the person is currently serving a sentence of imprisonment.

A person has a “substantial criminal record” if, among other things, they have been sentenced to a term of imprisonment of 12 months or more.

A term of imprisonment includes a suspended sentence or release on parole after serving a portion of the sentence.  It does not matter if the period of actual custody is less than 12 months.  What is relevant is whether the whole of the term of imprisonment imposed is 12 months or more. If you are sentenced on multiple offences, to be served concurrently, they will be counted cumulatively. For example, if you received a sentence of 6 months imprisonment on two charges, to be served at the same time, they will be counted as 12 months for the purposes of deportation, even though you will be released from prison after 6 months.

Ultimately, this means that, if you are a non-citizen of Australia, and you are serving a term of imprisonment of 12 months or more, the government must cancel your visa or permanent residence.

If you do not pass the character test, you will be placed in immigration detention until a final decision is made about whether or not you can remain in Australia. This generally occurs immediately upon your release from prison.

Can I appeal my visa cancellation?

A person who has had their visa cancelled due to a criminal conviction may seek a “revocation” under section 501CA (4) of the Migration Act.

The grounds for a successful revocation are quite limited.

The Minister must either be satisfied that the person passes the “character test” or “there is another reason why the original decision should be revoked”. Generally, unless a major error has been made, the decision can only be reviewed for reasons other than the “character test”.

In considering whether to revoke the decision, the Minister must consider:

  • the protection of the Australian community from criminal or other serious conduct;
  • the best interests of minor children in Australia; and
  • the expectations of the Australian community (see Ministerial Direction 65).

If the visa cancellation notice was issued by a delegate of the Minister, you may also appeal the decision to the Federal Administrative Appeals Tribunal. If the notice was issued by the Minister of Immigration personally, your appeal rights are only through the Federal Court of Australia, which can be a lengthy process.

Strict time limits apply

You only have 9 days from receiving your visa cancellation notice to appeal the decision to the Administrative Appeals Tribunal. As such, you should seek advice from an immigration lawyer immediately after your sentence if you believe you may fail the “character test”.

If you or someone you know has received written notification of the government’s intention to cancel your visa, you should seek specialist immigration law advice immediately.

There can be long term consequences of a criminal conviction that apply long after your case has finalized.  These can include immigration, employment, occupational regulation, family law and travel consequences.

We often act for clients who are not citizens or may have other circumstances in which convictions can impact their lives beyond the finalisation of the criminal case. We can provide you with confidential advice about the particular facts of your case, and develop a strategy to minimize the long term impact on your life.

Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who on engagement can advise you on the basis of your personal circumstances.

Written by Rebecca Fogerty (Criminal Lawyer) and Aadil Master (Law Clerk).

 

 

Domestic violence: Bill Potts says blanket bail refusal not the answer

Changes should be made in the way courts deal with domestic violence offenders with mental health issues, rather than making bail harder to secure, a prominent Queensland lawyer has argued.

The LNP has pledged to introduce laws reversing the onus of proof for bail on domestic violence cases in the first sitting week of Parliament in 2017.

 

The LNP’s legislation would cover people charged over domestic violence-related incidents, including offences of strangulation, assault, deprivation of liberty and kidnapping.

That means a person charged with a domestic-violence-related offence would automatically be refused bail pending their court case being finalised and the defendant would have to prove why they should be released.

 

Attorney-General Yvette D’Ath asked her department to examine bail laws in other jurisdictions and Police Minister Mark Ryan on Thursday opened the door to possible ankle bracelet tracking for some offences on bail.

David Bradford, 52, was freed on bail less than three weeks before police believed he murdered his wife Teresa at her Pimpama home, and then killing himself.

Before his release, Mr Bradford had spent 44 days behind bars, accused of choking and assaulting his estranged partner.

Police reportedly objected to bail, pointing to his “fragile mental state” and saying he was an “unreasonable risk of causing self-harm or harm towards others”.

Queensland Law Society immediate past president and criminal lawyer Bill Potts said mental illness, alcohol or drugs were often involved in domestic violence cases.

Mr Potts said the society needed to deal with the causes, such as mental health, alcohol or drugs, rather than locking people up and throwing away the key.

“Rather than simply deny bail to the 99 per cent of people who do not breach bail in these circumstances and who are more than prepared to obey the orders which are made by the court, we should in fact ensure that the courts have the proper and appropriate means to monitor the fluctuating states of the mental condition of people who appear before them,” he said.

“People can appear to be quite sane when they’re applying for bail but their condition may change if they utilise drugs or alcohol or if their depression comes back.”

Mr Potts said courts should be notified of a defendant’s deteriorating mental health situation by hospitals, police, neighbours or “anybody who is in the position to see the person is hanging on by a thread or losing their sense of reality”.

“Courts are able to order mental health assessments … If there’s any change in that, the person books themselves back in hospital, the spouse notices that they’re deteriorating, that sort of thing ought to be told to the court, so up to date information is available to the courts.

“Rather than laws which on their face may be populist, what we in fact need is better resources for a court system that is stretched to breaking point.

“People act in these things, sometimes out of an explosion of rage or anger, but more often out of despair and where that’s tied up with a recognised mental illness.”

Also on Thursday, Mr Ryan said he would speak to the Premier and Attorney-General about Ms Bradford’s family’s comments suggesting ankle bracelets could be used to track accused DV offenders.

“I’ve got an open mind on that and I’m happy to talk with the Premier and the Attorney-General about that very thing,” he said.

“As I mentioned before, just a couple of moments ago, the Queensland Police Service is a world-leading police service in terms of being an early adopter of technology, so where there is technology to assist us in keeping Queenslanders safe, I’ve got a really open mind.”

Mr Potts said about 23,000 applications for domestic violence orders were made each year, which involved up to 46,000 couples.

“We simply cannot and ought not to have a rule that prevents people from getting bail because we simply do not have enough jails and secondly there is simply no need for such a course of action,” he said.

When questioned on whether his proposed law reform could lead to prison overcrowding, Opposition Leader Tim Nicholls said he believed the issue could be managed.

Mr Potts said people’s hearts must go out to the family and friends of Ms Bradford and people quite properly questioned what went wrong and whether lessons could be learnt.

“But I’m concerned that sometimes in the desire to do good and to prevent harm that we in fact can cause injustice,” he said.

Mr Potts said there had also been “unfounded and quite hysterical abuse” directed at Magistrate Colin Strofield, who allowed Mr Bradford to be released on bail.

“It’s all very well for people to be wise with 20/20 hindsight,” he said.

“We should be trying to ensure that our hardworking magistrates at the coal face of justice are given support and resources.”

Queensland Council for Civil Liberties vice president Terry O’Gorman said reversing the onus of proof for bail would result in defendants spending many months on remand before their cases were heard, when some would be found not guilty.

“[It will] cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped,” he said.

Mr O’Gorman said the Teresa Bradford tragedy should not be ignored but it did not demonstrate a systemic problem with the domestic violence bail system.

But he said the council supported a proposal to make police tell domestic violence complainants when the alleged perpetrator was released on bail.

Women’s Legal Service coordinator Angela Lynch said the WLS supported calls to reverse the bail laws where risk assessments identified red flags for victims’ safety.

She said the WLS also supported urgent consultation with stakeholders and experts.

“We’re heartened that bail laws are on the agenda for both sides of the aisle,” Ms Lynch said.

“I’m interested to see specifics on the private member’s bill to be introduced to Parliament by the opposition.

“This is complex. We need DV experts to be consulted. We owe it to Teresa and the women of Queensland living with violence to get this right.”

During January, the WLS received a 41 per cent spike in calls to its statewide domestic violence helpline.

Prevention Rather Than Punishment Over Coward Punch Attacks

All Queensland politicians should search their conscience about the effectiveness of Queensland’s nightclub lockout laws in the wake of the Cole Miller death on Monday, Queensland Law Society president Bill Potts believes.

“I would like all parliamentarians to look to their consciences and to grasp that particular nettle,” Mr Potts said.

“It is often said that bad cases make for bad laws; here is a situation where a bad case may make for good law Continue reading Prevention Rather Than Punishment Over Coward Punch Attacks

Bill Potts Comments On Baden-Clay Conviction Downgrade

Bill Potts, President elect of the Queensland Law Society 2016 comments on the Court Of Appeals decision to downgrade Gerard Baden-Clay conviction of murder to manslaughter.

Potts explains how the court came to their decision and says that many legal experts aren’t surprise by the downgrade. He says the public should have confidence in the legal system and said the decision made by the three Court of Appeal judges, including Chief Justice Catherine Holmes, is the right decision according to Law.

The Court of Appeal after looking at all of the evidence was perfectly satisfied that the jury got it right. That is – that Gerard Baden-Clay did kill his wife. This is going to be on his conscience for the rest of his life. Continue reading Bill Potts Comments On Baden-Clay Conviction Downgrade

Case Dismissed Against Accused Bikies Arrested While Buying Ice-cream

Anti-bikie law rally 2013A HIGH-PROFILE lawyer has rubbished Queensland’s anti-bikie laws, describing them as totally useless and nothing more than a political stunt.

His comments came as a court dismissed the case against five alleged bikies who were arrested under anti-association laws after they bought ice-cream during a Gold Coast holiday in January 2014.

The dismissal in Southport Magistrates Court this morning came as the prosecution revealed Continue reading Case Dismissed Against Accused Bikies Arrested While Buying Ice-cream

Johnny Depp’s Partner Amber Heard Issued Summons For Bringing Dogs Illegally Into Australia

Johnny Depp’s Yorkshire terriers Boo and Pistol were spotted at Happy Dogz groomers on the Gold Coast in May. (Supplied: Happy Dogz)

Johnny Depp’s wife, actress Amber Heard, has been charged over a biosecurity breach after illegally bringing dogs Boo and Pistol into Australia on a private jet and is due in a Queensland court in September.

The Commonwealth Director of Public Prosecutions issued a summons against Heard.

She has been charged with two counts of illegal importation contrary to the quarantine act and one count of producing a false document.

Penalties include fines of up to $100,000 or up to 10 years imprisonment. Continue reading Johnny Depp’s Partner Amber Heard Issued Summons For Bringing Dogs Illegally Into Australia

Gold Coast Police Brutality: Another Alleged Incident Captured On CCTV

THERE has been an explosion of allegations of police brutality on the Gold Coast, with shocking footage emerging of a recent attack.

The Courier-Mail has obtained disturbing CCTV footage from inside the Surfers Paradise police station which shows a handcuffed Michael Cox, 29, being physically restrained and his head slammed into the tile floor.

The footage shows Mr Cox and watchhouse officer Peter Nummy talking on a bench inside the station. Both men appear relaxed. At no point does Mr Cox lunge at the officer, but moments later the footage shows Officer Nummy twist Mr Cox’s handcuffed wrist backward and slam his head into floor. Continue reading Gold Coast Police Brutality: Another Alleged Incident Captured On CCTV

Bill Potts Obtains Bail For Biochemist Facing Drug Charges

A Griffith University PhD student with a degree in biochemistry has become a real life case of Breaking Bad, using his degree to allegedly manufacture illicit drugs.

In his day job, Jason Mackenzie teaches medical students at Griffith but the 42 year old yesterday faced Southport Court accused of being an integral part of an interstate Albanian drug syndicate.

The Robina-based student has been charged with trafficking and manufacturing dangerous drugs after a series of raids across the Gold Coast on Tuesday as part of Operation Kilo Chess. Continue reading Bill Potts Obtains Bail For Biochemist Facing Drug Charges