Queensland's proposed legislative response to recent protests - The so-called 'anti-locking'​ or 'dangerous attachment device'​ amendments

The following is not legal advice, or intended to be relied upon as such. The purpose of this article is to be informative regarding the impending legislative changes in Queensland, following the several 'anti-extinction' protests in Brisbane's CBD.

The story (so far...):

If you weren't already aware, the Queensland government were seeking to amend legislation to provide the Queensland Police Service ("QPS") with greater power to search protesters suspected of possessing 'locking devices'. This was in response to alleged tactics of protestors gluing themselves to roads, locking themselves to trailers, boats and cars left on thoroughfares within the CBD, and locking themselves to barricades within the CBD.

The rhetoric increased in late-August and early-September, when Premier Annastacia Palaszczuk, on advice from the Commissioner of Police, told the Queensland Parliament protestors utilised 'booby traps' either within or about the locking devices to prevent their ease of removal by first-responders. The Premier was quoted as remarking:

"These protesters put their arms in steel cylinders and drums filled with concrete [...] Inside these cylinders and drums are glass fragments — even butane gas containers — so that anyone trying to cut a protester free will be injured or worse."

There was significant furore from both sides of Parliament, and a number of stakeholders as to the proposed amendments. Queensland Law Society President, Bill Potts, succinctly summarised:

Suspending people over train tracks for mine trains, or putting derailment devices on those tracks, is simply a tragedy waiting to happened; shutting down Brisbane in peak hour punishes the very people the protesters want to support their cause. The irony is that it is impossible to imagine that such stunts have swung any doubters to the cause of Extinction Rebellion, although many will have been turned off by them.

A similar irony exists in the government’s proposed response, the curtailing of the right to protest. That has actually prompted even people who are sick of extinction Rebellion’s antics to get out and protest for the right to protest; by trying to curtail protests, the government has created more of them. Does anyone think we are getting anywhere with this?

Mr Potts, in his President's Update (17 September 2019) cautioned against legislative overreach, contrasting the recent protests and government response with the Bjelke-Petersen era.

So - What are the proposed changes to Queensland's protesting laws?

On 19 September 2019, The Honourable Mark Ryan MP, Member for Morayfield, Minister for Police, and Minister for Corrective Services introduced the Summary Offences and Other Legislation Amendment Bill 2019 (Qld). Legislation, he said, that was to amend the Police Powers and Responsibilities Act 2000 (Qld) ("PPRA"), the State Penalties Enforcement Regulation 2014 (Qld) ("SPER"), and the Summary Offences Act 2005 (Qld) ("SOA").

The 'mischief' identified was summarised as such [at 3024-5]:

"In recent times, a small cohort of people have decided to engage in deliberately unlawful behaviour with potentially dangerous outcomes. We have seen bespoke devices designed to fix people to a place, a thing or each other. These devices are purposely built to resist attempts to remove them. [...] "

Items identified included "sleeping dragons", "dragon's dens", tripods on rail lines, and the use of glass and gas cartridges within or about these devices. There were four heads of proposed amendments identified:

1 - 2: Amendments to the PPRA:

First, the PPRA would be amended to provide the QPS with power, where there was reasonable suspicion a person has, or a vehicle contained, a 'dangerous attachment device' that has been used or is to be used to disrupt a 'relevant lawful activity', to search that person or vehicle (to amend PPRA s. 30 Prescribed circumstances for searching persons without warrant; and, s. 32 Prescribed circumstances for searching a vehicle without warrant)

Disrupting a 'relevant lawful activity', under the proposed amendments is where a person "unreasonable interferes with the ordinary operation of transport such as our roads or railways; or if the person stops a person from entering or leaving a place of business; or causes the ordinary operation of equipment or plant to be halted due to the safety concerns of a person".

Second, under similar amendments to the PPRA, the QPS would be empowered to deactivate, disassemble or seize any dangerous attachment device found; with any seizures resulting in forfeiture of the device to the State (inserting new section: PPRA s 53AA Seizure and disposal of dangerous attachment devices; amending s 720 Application of div 7; and Schedule 6 - Dictionary).

3: Amendments to the SOA:

Third, under amendments to the SOA, two new offences would be implemented:

The first offence (Inserting a new offence, SOA s 14C(1) Use of dangerous attachment device to disrupt lawful activities) elementised as: [1] Any person who; [2] without reasonable excuse; [3] uses a dangerous attachment device [4] to unreasonably interfere with the ordinary operation of transport infrastructure; [5] will be liable to a maximum penalty of 50 penalty units (note: a Penalty unit, as of 1 July 2019 is $133.45, making the maximum fine liability $6,672.50 for this offence) or two years imprisonment.

The second offence (Inserting a new offence, SOA s 14C(2) Use of dangerous attachment device to disrupt lawful activities), elementised, is: [1] Any person who; [2] without reasonable excuse; [3] either: (i) stops a person from entering or leaving a place of business, or (ii) halts the ordinary operation of equipment; [4] because of safety concerns for any person through the use of a dangerous attachment device; [5] will be liable to a maximum penalty of 20 penalty units ($2,669.00) or one year's imprisonment.

The second offence excludes tripods or monopoles unless those devices incorporated a dangerous substance or thing (new section: ss 14C(3)).

4: Amendments to the SPER:

Finally, the SPER would be amended to provide the QPS ability to issue infringement notices for the proposed offences under the SOA up to five penalty units ($667.25) for the first offence, and two penalty units ($266.90) for the second (Inserting SOA s 14C(1) & (2)).

But what is a (dangerous) attachment device?

The proposed amendments to the Summary Offences Act include definitions of an attachment device (s 14A) and a dangerous attachment device (s 14B).

An attachment device is: a device that reasonably appears to be constructed or modified to enable a person using the device to resist being safely removed from a place or safely separated from a thing (s 14A(1)); but does not include, on their own, any of the following: glue, a bike lock, a padlock, a rope or a chain.

A dangerous attachment device is: an attachment device that either:

• reasonably appears to be constructed or modified to cause injury to a person who attempts to interfere with the device (s 14B(1)(a)); or

• reasonably appears to be constructed or modified to cause injury to a person if another person interferes with the device (s 14B(1)(b)); or

• incorporates a dangerous substance or thing (s 14B(1)(c)); or,

• is a sleeping dragon, dragon’s den, monopole and tripod (s 14B(2)).

The terms 'sleeping dragon', 'dragons den', 'monopole' and 'tripod' are further defined between pages 10-11 of the bill, available here.

Where are we up to now?

The Summary Offences and Other Legislation Amendment Bill 2019 (Qld) was (on 19 September 2019) referred to the Legal Affairs and Community Safety Committee, consisting of:

• Mr Peter Russo MP, Member for Toohey, Chair

• Mr James Lister MP, Member for Southern Downs, Deputy Chair

• Mr Stephen Andrew MP, Member for Mirani

• Mr Jim McDonald MP, Member for Lockyer

• Mrs Melissa McMahon MP, Member for Macalister

• Ms Corrine McMillan MP, Member for Mansfield

Submissions were called for, and were closed on 8 October 2019. On 11 October 2019, the Committee conducted a public hearing (an archived broadcast available here and a transcript available here). The Committee's report is due to be tabled on 4 November 2019, and with the last parliament sitting dates scheduled between 26 - 28 November 2019, the proposed amendments may well become law before the end of 2019.

Conclusion

The proposed legislative amendments seek to curtail a specific mischief, however the effect of the amendments may (and indeed, are likely) to go beyond responding to this specific mischief and impact the ability to peacefully protest - a staple right of any functioning democracy.

The death knell of the 'Chorley Exception'​ previously allowing legal practitioners to recover time spent in personal litigation has been sounded!

On Wednesday, 4 September 2019, the High Court of Australia ("HCA") published their reasons for judgment in Bell Lawyers Pty Ltd v Pentelow & Anor [2019] HCA 29 [See the full decision here].

Background of the exception:

Self-represented litigants, whilst able to claim disbursements, were generally unable to claim costs (see generally: Cachia v Hanes (1994) 179 CLR 403). However, as a solicitors costs are quantifiable by courts, where a self-represented litigant was a qualified solicitor, that litigant was able to claim professional costs for the legal work performed themselves (albeit, with some limits [see generally: Ogier v Norton [1904] VLR 536]).

This was exception to the rule was known as the Chorley exception, from the UK decision bearing his name: London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

Background of Bell Lawyers v Pentelow:

In short, a barrister: Pentelow, was allegedly owed money by a law firm: Bell Lawyers, for services and appearance work performed. A dispute arose as to the payment of Pentelow's fees. At first instance in the Local Court of NSW, Pentelow was unsuccessful recovering the fees.

However, Pentelow successfully appealed to the Supreme Court of NSW, and an order for costs was made in Pentelow's favour. Although represented at the hearing, Pentelow had undertaken legal work and attended court on a number of occasions and sought to recover those costs. Bell Lawyers refused to pay those costs, a decision affirmed by a costs assessor, a Review Panel, and later by the District Court of NSW. 

Seeking judicial review of the District Court's decision, the Court of Appeal of the Supreme Court of NSW found in favour of Pentelow, finding Pentelow was entitled to rely upon the Chorley exception, notwithstanding Pentelow's status as a barrister and now a solicitor (see: Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150). A flurry of articles and opinions appeared online considering whether the Chorley exception now applied equally to legal practitioners irrespective of status.

The High Court:

In granting special leave to appeal, the HCA unanimously held the Chorley exception should not extend to Barristers; and by majority (Kiefel CJ, Bell, Keane and Gordon JJ), the Chorley exception should not be recognised as part of the common law of Australia:

“[T]he Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it. Accordingly, it should not be recognised as part of the common law of Australia.” [Paragraph 3]

Justices Gageler and Edelman in delivering separate judgements supported the abolition of the Chorley exception.

So where does that leave legal practitioners seeking to recover unpaid fees?

Great question. But in interpreting the judgement of the HCA, perhaps any time a legal practitioner spends on their own matters is not recoverable. Perhaps, in the circumstances, the safest route is retaining another legal practitioner to litigate these matters on your behalf...

'Grey Divorce' - being an adult 'child' during a family separation.

There is a relatively new phenomenon affecting the lives of many young professionals. In 2012, a study in the Journals of Gerontology (source) analysed data between 1990-2010, determining divorce rates among adults aged 50 years and older had doubled. Whilst divorce rates were steadily increasing (45% of marriages in the United States of America), at least a quarter were now in the 50+ bracket.

While divorce at any age is generally a traumatic experience for the children of, or belonging to, the relationship; the new phenomenon of ‘grey divorce’ is silently affecting the lives of many adults. Many now adult-children may feel disinclination to confide in others the internal turmoil of witnessing a family unit disintegrate, which may have been a foundation in their lives until that time. Indeed, Austin-based attorney and author, Janice Green, in her book “Divorce after 50”, comments: “… adult kids have longer established family rituals and home memories than the younger ones, so in some sense the divorce can cause more of an impact”.

Having a family unit disintegrate after thirty-something years has a number of imperceptible impacts. In many cases, adult-children are suddenly comforting and commiserating either one or both of the parents through a situation they did not author. Adult-children become the pillars of the parents’ lives whilst in many cases their own emotional support and needs are not addressed. Children become pseudo-parents.

This is not to say that the divorce wasn't warranted or necessary in the many varying personal circumstances.

Parents may be divulging in their adult-children stories of infidelity, possibly bad-mouthing and accusing the other parent whilst seeking emotional support and advice. These ‘over-share’ conversations, in many cases, are tolerated from a perceived or actual obligation to their parents. In many cases these conversations are without regard to the emotional toll upon the adult-children listening.

Many adult children describe being told by family, friends, and disturbingly therapists, to simply “get over it” (source). This negative messaging is further reinforced by comments of acquaintances who perhaps had parents who divorced when they were very young. Comments range from: “you’re old and mature enough to handle this”, to “you should feel lucky that you had your family as long as you did”. 

Such flippant comments may cause many adult-children to question their own legitimateemotions and responses.

With so much of the psychological research on divorce addressing the effects upon pre-adolescents, it is hardly unsurprising many adult-children feel wholly unsupported. Many internalise feelings of guilt, anxiety and depression to the detriment of their health and wellbeing. This is can be compounded by declining performance in work environments.

Adult-children themselves may lose faith in relationships, shun commitment and cultivate an unhealthy level of cynicism of people and love. Their own relationships may irrepressibly suffer due to a perceived ‘expiry date’ that surely must occur in every relationship.

Family homes are sold, which may feel like a betrayal to the memories adult-children held so dear. Conversations about happy childhood memories are contrasted against the hurt and anguish now experienced. Photos are moved, replaced or destroyed, and with them the familiarity and comfort they once brought. 

Playing counsellor may have cost you extra time in your studies, perhaps you missed that promotion, or you otherwise just feel a general fogginess in your mind’s eye. Tragically, the joy of a graduation, new home or job is offset by the necessitation to organise the logistics of your parents’ interaction – if you don’t celebrate twice.

Huffington Post author, Kasey Edwards, (source) accurately surmises: “Watching the family home and assets being packed up and fought over shatters your world, no matter how old you are. It was as if my safety net in life had gone”. 

So, why am I writing about this on a ‘professional association’ website?

Foremost, I am writing this as an adult-child of grey hair divorce. My family unit disintegrated when I was 29 years old. By this stage in my professional life I had been a Police Officer, Lawyer and Military Officer. I had wide exposure to trauma, violence and human emotion through each of these jobs. I did what many males do – I shut shop. When I did confide in a supervisor and friends, I received many of the flippant responses described above. I stopped talking, but never stopped hurting. It took me two years to finally seek the support I needed from day 1, by that stage it had affected my health, socialisation and work performance – don’t be like me!

Second, as a student of management and leadership, I implore those readers in positions of authority, responsibility and command to care for your people when they choose to confide in you. You can never be quite sure how long your colleague has been contemplating to confide in you and you must never take for granted that they have. Listen with compassion and empathy. Offer support. And please, never dismiss their concerns in a flippant manner.

Finally, to open the channel to those who haven’t yet sought support and may be struggling through their situation as an adult-child in a ‘grey divorce’. If even one person is encouraged to seek support, my message would have been a success.

Joining Bennett Chambers Group

I have joined Bennett Chambers Group, operating out of Level 6, 107 North Quay, Brisbane, Qld, 4000.

Bennett Chambers is named after one of Queensland’s best-known barristers, Colin ‘Col’ James Bennett.  Mr Bennett is remembered for his time as a lawyer and politician, including his dedication to a number of charitable causes. Mr Bennett was one of the longest serving barristers at the Queensland Bar having practiced continuously for over 45 years.

Bennett Chambers espouses the philosophy of Mr Bennett, that all people deserved the best legal representation no matter their life’s circumstances. He believed a level playing field only existed where well trained and committed barristers were prepared to vigorously defend the rights of the weak and poor thus giving them equality with the strong and the rich.

For more information about Mr Bennett, please see his Wikipedia page.

I am proud to work among a number of esteemed colleagues who each embraces Bennett’s philosophy and belief.

Liability limited by a scheme approved under Professional Standards Legislation

the name is on the wall

LAING, Nathan - Level 6