DNA Evidence and Familial Matching


“THE son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son.”[1]

Regardless of your religious affiliations, the relentless progress of modern DNA science has the capacity to challenge and undermine this immensely sensible and vital moral, philosophical and legal foundation. DNA familial matching is the process of establishing the identity through a person’s blood relative. I will not go into the science behind this, suffice to say that we share half the alleles (DNA) with our father and mother. This material splits again with each relative, so we share a quarter of our DNA with our brothers and sisters and one sixteenth with our aunties and uncles. DNA testing is the process of identifying the loci for a distinct ‘fingerprint’ to be established that is unique to the individual.[2] Due to improvements in science today, it remains all too easy to cross-check the unknown DNA of an offender and compare it with a database to search for his or her relatives. This new form of surveillance could occur each and every time unknown DNA is found at a crime scene. It represents a Tower of Babel – a genetic panopticon where all those who are merely related to a convicted offender remain under the watchful eyes of the State.

Despite the fact that the technology is well within the capabilities[3] of the Victorian Police Forensic Services Department, there has been little public debate on familial matching impacting on our rights. This technology is available now and yet our legislature hasn’t debated or even remotely considered the issue.

The use of familial matching has significant consequences on individual privacy. The prospect that a relative may become a ‘genetic informant’ may have the capacity to break down trust within a family. If widely implemented, familial matching would focus the attention of police on families who are merely related to an offender. In the US, there have been concerns that this will create a form of racialised justice that disproportionately impacts on African American and Hispanic minorities. In Louisiana for example, a rape victim provided her DNA information to police that then subsequently led to the arrest of her brother.[4] Such concerns have significant weight here considering that in a 2011 study by the Australian Bureau of Statistics, Aboriginal and Torres Straight Islander’s comprise 26% of the prison population. Because of this overrepresentation in the penal system, Aboriginal and Torres Straight Islander’s would endure a far greater and disproportionate amount of genetic surveillance than the Caucasian majority.

dna-evidenceIn 2010, the Victorian Privacy Commissioner raised the additional spectre that strict existing procedures for taking DNA samples from suspects could be easily circumvented by taking samples from a relative instead. For example, the police could use the biological material taken from a pap smear as evidence against a relative.  But it is when we examine familial matching and the use of DNA databases that the impact on privacy becomes truly Orwellian. Between 2010-2011, Australia’s national DNA database, the NCIDD, held 602,317 DNA samples. Assuming that each offender has two to three blood relatives, the genetic spread of the database could creep across into the lives of roughly an estimated 1.2 – 2.4 million people. While these figures are based on simple arithmetic, they demonstrate the sheer number of Australians who would be subject to genetic surveillance. These figures would inevitably increase with the future rapid developments of science. It is foreseeable that the future will bring the ability to match second-degree relatives, like uncles, aunties, grandparents and half siblings. It is imperative that we therefore examine the policy, legal and ethical implications on our democracy before familial matching is adopted in Australia.

The other significant impact is on capacity for miscarriages of justice. Unfortunately, the Victorian criminal justice system does not have a good history when it comes to wrongful convictions through DNA evidence. Commenting on the wrongful conviction of Farah Jama, Justice Frank Vincent’s report noted the difficulties our legal system has had to adapting to the almost “magical” developments of DNA science. He concludes that everyone ignored “Locard’s principle”, which is the scientific principle that every contact leaves a trace. Jama’s wrongful conviction was based solely on a single piece of DNA evidence that had been transferred through entirely innocent means. A piece of DNA can transfer onto a person merely by sitting in the same car, at different times. There was no evidence that Jama was ever at the club, and perhaps more perturbing is the fact that there was no evidence that a rape had even been committed at all. The conviction was based upon blind faith in science. This unblinking trust sent an innocent man to prison and caused a woman to be re-victimised by the criminal justice system due to a crime that didn’t even take place. If we widen the net for DNA evidence to the realm of the family we also increase the possibilities for these types of tragedies to occur.

Despite these concerns, familial matching has an undoubtedly useful investigative function. The power of familial matching to generate new leads in unsolved murders and cold cases cannot be ignored. The notorious US serial killer, the BTK murderer (an acronym for “bind, torture, kill”) was caught using familial matching. But due to its impact on rights, familial matching must be limited by subjecting it to strict judicial oversight. One proposal is that a judge should only allow familial matching to occur only if a serious crime would remain unsolved unless authorities use familial matching.

Unfortunately, we are in a position of limbo on this matter. Our parliaments have not remotely considered the issue, leaving its legal status uncertain. This is despite the Ford Committees recommendation in 2010 that familial matching can “only be adopted after an appropriate exposure to public examination and assessment.” The Committee nevertheless concluded that while the legislature has clearly not examined this issue, there is nothing in the Federal Crimes Act 1914 (Cth) that would prevent familial matching. In Victoria, it may not be legal under the Victorian Charter of Human Rights unless explicitly enacted by parliament.

This crucial question has remained unexamined for far too long. It is time for the public to consider and debate this issue. Modern politics usually doesn’t have the capacity for foresight and often these things are upon us before we have a chance to scrutinise them. This must change due to the dizzying speed in which science can change, morph and undermine the ideals that define and protect us.

Felix Ralph

My thanks go to Ali for letting me occupy his online couch for a bit as a guest blogger. Feel free to comment below or contact me on the tweets  @fchralph.

[1] Ezekiel 18:20.
[2] For those who care about this issue and are interested to delve into the science behind it, I recommend Gregor Urbas & Marc Smith. ‘Regulating New Forms of Forensic DNA profiling under Australian legislation: Familial Matching and DNA Phenotyping’ (2012) 44 Australia Journal of Forensic Sciences 66.
[3] The VPFSD has recently upgraded their testing capabilities from 9 loci to 23 loci.
[4] See Mary McCarthy, ‘Am I My Brothers Keeper?” Familial DNA Searches in the 21st Century’, (2011) 86 Notre Dame Law Review 393.

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Life in Crime: The Elusive World of the Defence Lawyer

In my first year at law school I remember agonising over what electives I should take over the coming years. By way of career guidance, I was invited to chat with the many graduates who flooded our corridors with giant banners of their respective top-tier firms. Sadly, the only practical advice I took away about a career in criminal law was that I would be destined to a life of pauperism. The hackneyed phrase of ‘crime doesn’t pay’, according to my Armani-suit-wearing peers, evidently also applied to lawyers.

For the past eight months I have been employed as a criminal para-legal and I’ve had the pleasure of shadowing brilliant defence advocates at all levels of the criminal justice process – from pre-interview advice, bail applications, pleas, all the way through to jury empanelments, trials, and appeals. And I feel I should share my preliminary understandings of the elusive defence advocate role so that unlike myself, junior criminal law aficionados can make an informed decision about the electives they would like to pursue.

Humanising the Dehumanised:

The first realisation a defence apprentice encounters is the profound course of dehumanisation an accused person receives from the moment of contact with the criminal justice system. Within my first week at the Magistrates’ Court, a police informant approached us at a bail hearing and boldly asked, ‘are you guys representing my crook?’. That’s right, ‘my crook’. Our client had been branded as a criminal even prior to standing trial and had ostensibly become the officer’s personal chattel.

My induction into the courts taught me that the defence advocate is not only charged with the duty of holding prosecution to its burden of proving criminality beyond reasonable doubt, but equally, if not more importantly, the duty of presenting the individual behind the thick stain of criminality to the court. In other words, humanising the dehumanised.


Many people have queried me about the morality, or rather the perceived immorality of defending those who have committed particularly heinous crimes – with murder, rape, and paedophilia topping the abhorrence scale. I’m often asked ‘how can you not feel for the victim?’. There’s a common public misconception that defence advocacy somehow dictates an empathic disconnect from the victim. But what the public doesn’t understand is that any person who has the interpersonal capacity to empathise with a defendant, by necessary implication, also cannot help but position themselves in the shoes of the victim.

What I’ve come to understand and respect is that it is a fundamental tenet of criminal law that the assessment of guilt or innocence of the accused remains with the court – not the advocate. As expounded in the joint judgement of Duffy CJ, Dixon, Evatt and McTiernan JJ, in the High Court back in 1934:

‘Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.’[1]

Thus, the defence advocate undertakes the moral position of ensuring that the conviction of the accused is secured by due process, and not on the evidence of mere suspicion or guesswork by the police or prosecutors. In doing so, the defence advocate not only preserves the protection of the defendant’s rights, but the rights of the unsuspecting public who, dare I say, may also find themselves in the shoes of the accused.

Following Your Passion:

I had the privilege of talking to an esteemed former judge of the Victorian Court of Appeal, Justice Frank Vincent, after he delivered a moving presentation to us at work about the perils of Centrelink’s Income Management scheme. Justice Vincent, who currently sits as a board member of the Victorian Law Reform Commission, had represented over 200 defendants in murder trials before his appointment to the Supreme Court bench in 1985.

I asked Justice Vincent about what he attributed his successful career in law to, and his response was that he always followed his passion for criminal law. He explained that a career in law was incredibly demanding, and his only source of motivation was that he genuinely loved his work as a criminal solicitor, barrister, and judge.

Justice Vincent taught me that a successful career in law was in fact a by-product of a genuine desire and passion for a specific field of law. And this is the advice I ought to have received from my graduate peers at law school.

Ali Besiroglu

If there are any criminal lawyers who want to share their experiences, please do so below.

[1] Tuckiar v R (1934) 52 CLR 335 at 346.


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The ‘Income Management’ Disgrace: Confessions of a Welfare Dependent

Brace yourselves fellow law school colleagues. It might come as a shock to some of you when I proudly confess that I have been, and always will be, welfare dependent.

I was raised by a single mother of three in the Collingwood Commission high-rise apartments. Our brave mother, who migrated from Turkey when she was 18, made ends meet by working two jobs – a part-time teacher at our local kindergarten by day, and a cleaner at the same kindergarten by night. Mum also assumed the responsibility of full-time caretaker of our grandmother after she fell critically ill. The years of laborious exertion of transporting gran and hauling a heavy backpack-style vacuum cleaner eventually took its toll on her lower-back, and after gran succumbed to her illness, mum transformed from an employed caretaker to an unemployed patient.

Throughout our high school years, our family unit relied on a Disability Pension and ‘government handouts’ became our only means of survival.

Years later, whilst sitting in my Taxation Law elective, I was astonished to discover that I would continue to obtain the benefit of ‘government handouts’ throughout my professional legal career. These government handouts, however, were carefully guised by the corporate world as tax deductions, offsets, and subsidies. I could, for example, utilise Mr Lindsay Fox’s genius government handout idea of opening my collection of exquisite Ferrari’s and Porsche’s to public view for one day a fortnight and call it Ali’s Classic Car Collection to obtain a 100% tax write-off. I learnt that the government would also not differentiate in providing me a handout for flying First Class to the next Human Rights Conference at Geneva whilst sipping my complimentary Comtes de Champagne for a whopping $9,500 each way, instead of the $2,000 which I would otherwise pay in Economy Class.

These lavish handouts were usurped from my mother when she literally broke her back to support our family. But to add insult to her injury, the Commonwealth Government would now like to subject my mother’s weekly payments of $300 to a demeaning ‘Commonwealth Income Management’ regime over the coming years.

Initially developed in 2007 as a part of the Northern Territory Emergency Response, the Greater Shepparton region in Victoria is one of five national jurisdictions earmarked for a five-year trial of the Income Management regime.[1] Starting in July this year, the Income Management scheme will apply to all ‘vulnerable welfare recipients’[2] and parents with dependents involved in the DHS child protection system.[3] Recipients on the regime will have 50-70% of their welfare payments quarantined, forcing them to shop at selected retail outlets on a ‘Basics Card’ in lieu of their welfare payments – currently limited to Coles, Target, Kmart and Bi-Lo. Recipients will not be permitted to use their Basics Card to purchase alcoholic beverages, tobacco products, pornographic material, home brew concentrates/kits, or gambling services.

Evidence provided to the Senate Inquiry Committee distressingly divulged that Northern Territory recipients were made to line up in separate queues in major shopping centres after all checkout registers did not cater for the Basics Card.[4] The scheme also impeded on the recipient’s freedom to shop at the local fruit shop, deli, butcher, or other major food stores such as Aldi, where food could be purchased at a considerably cheaper price.

The obvious revolt against the regime is that it blatantly treats welfare recipients as second-class citizens by fostering discrimination, limiting freedom of movement, and contravening the recipients right to privacy and protection of reputation – all of which are fundamental rights supposedly enshrined in our Victorian Charter of Rights.[5] The regime emulates the dreadful ‘food voucher’ scheme in the US, where welfare recipients are currently scorned by shop staff for using their Basics Card to make ‘extravagant purchases’ such as, ‘steak, lobsters, and birthday cakes’.[6] I implore you to read the deplorable sentiment of a US Walmart checkout girl in the link at the end of this post and think hard about whether this is what Australian’s aspire to be.

Growing up in the fringes of our society, I know too well that certain welfare recipients require professional assistance in managing finances, substance addictions, gambling addictions, and raising families. However, I also know that these are not isolated attributes of the indigent class. All societal echelons face the same social difficulties, but it’s evidently the marginalised who are profiled by government authorities and socially deprived of the dignity to correct their ways. Forcing welfare recipients to wear a WWII Gold Star in the shape of a Basics Card is but a perfect example. It’s outrageous and offensive.

George Orwell once wrote that ‘ALL ANIMALS ARE EQUAL, BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’, and it’s an absolute disgrace that the more I experience life, the more this statement holds true!

Ali Besiroglu

Walmart staff member shares her views on US welfare reform: click here

Want to take action? Join the fight against Income Management on Twitter and Facebook.

[1] The regime is implemented via convoluted federal legislation, namely, the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), Pt 3B.
[2] Decided by Centrelink social workers, recipients will include those who are facing financial hardship, financial exploitation, lack of reasonable self-care, or risk of homelessness.
[3] DHS criteria has not been published, but the decision will be left to the discretion of child protection officers. However, if we employ the Northern Territory’s Family Responsibilities Commission model ‘there are four triggers’ which can activate intervention – namely, a ‘court conviction, a breach of a tenancy agreement, a child safety notification, and a failure of a child to attend school for three days in one term’.
[4] Carol Carter, the Deputy Chairperson of the Bankstown Aboriginal and Torres Strait Islander Advisory Committee, evidenced this to the Senate Inquiry Committee.
[5] See Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8, 12, 13.
[6] Christine Rousselle, ‘My Time at Walmart: Why We Need Serious Welfare Reform’ The College Conservative Blog [online]. 


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Failing to ‘Acknowledge Country’: The Scarcity of Respect

I think we students generally don’t provide enough praise to our educators who are charged with the onerous duty of pulling the cord to the parachute of our minds. Throughout my seven-year tertiary academic journey I’ve had the pleasure of learning from a multitude of remarkable lecturers and tutors at Monash and RMIT University. But as I start my new criminal para-legal position at the Victorian Aboriginal Legal Service, I wanted to dedicate this post to the only (emphasis added) academic staff member who commenced our classes by respecting the Traditional Custodians of the land on which we were taught.

Mr John Fox was a senior tutor in my Social Science (Legal and Dispute Studies) degree at RMIT University in 2007. He always started his classes with an ‘Acknowledgement of Country’ by stating: ‘I would like to show my respect and acknowledge the Traditional Custodians of this land, of Elders past and present, on which this class takes place’. 

Admittedly, when I first heard the Acknowledgement I naively thought Mr Fox had an Aboriginal background as I was under the impression that it could only be delivered by an Aboriginal person. So, half-way into the semester, I mustered up the nerve to question him about his Aboriginality and why he would uniquely start his classes in this manner.

Mr Fox did not have Aboriginal ancestry and he clarified that I had confused the ‘Acknowledgement of Country’ with the ‘Welcome to Country’ Ceremony – an Acknowledgement could be delivered by a non-Aboriginal person at the start of any meeting, function, or congregation, whereas a Welcome Ceremony could only be performed by an Aboriginal Elder.[1]

As to my question of why he Acknowledged Country, Mr Fox explained that the answer was located in a discussion about the ‘scarcity of respect’ in the opening paragraphs of a book by Richard Sennett:

‘Lack of respect, though less aggressive than an outright insult, can take an equally wounding form. No insult is offered to another person, but neither is recognition extended; he or she is not seen – as a full human being whose presence matters.

When a society treats mass of people in this way, singling out only a few for recognition, it creates a scarcity of respect, as though there were not enough of this precious substance to go around. Like many famines, this scarcity is man-made; unlike food, respect costs nothing. Why, then, should it be in short supply?’[2]

By reading this paradigm shifting passage, Mr Fox taught me a life lesson that we must be equally critical and accountable about our inactions/omissions as we are about our actions. Indeed, not Acknowledging Country could be equally hurtful as positively insulting the Traditional Custodians of this land. It is a form of insidious offending, and if we want to put an end to it, we must Acknowledge Country in our classrooms, lecture theatres, oral presentations, business meetings, and dare I say, in our courtrooms.

Especially when such a sublime gesture of respect has the cost of nothing more than a single sentence!

Has your teacher Acknowledged Country? Let us know by commenting below.   

Ali Besiroglu

[1] To learn more about the difference between an ‘Acknowledgement of Country’ and ‘Welcome to Country’ click here.
[2] Richard Sennett ‘Respect: The Formation of Character in an Age of Inequality’ (2003) pg 3.

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Trial by ‘Doctored’ Peers: Preventing Prosecutorial Jury Stacking

Since reading Harper Lee’s To Kill a Mockingbird in high school, I’ve always been fascinated by the jury system. The fictional champion Atticus Finch taught me at a very early age that ‘a court is only as sound as its jury, and a jury is only as sound as the [people] who make it up’.[1]

Our jury system has principally outlasted the test of time as it is seen to be the mighty defender of democracy. Specifically in the criminal law context, the guilt of the accused is determined by a diverse representation of randomly selected peers. The process is supposed to ensure moral objectivity, impartiality and just outcomes. However, predicting human behavior has become a calculated art form since the early fifties, and this art form now questions the integrity of these democratic ideals by manipulating the construction of justice and promoting a trial by ‘doctored’ peers.[2]

Ask any candid defence practitioner and they will identify that ‘systematic jury selection’, or ‘jury stacking’ as it is otherwise known, is deemed necessary to remain legally competitive in our adversarial system of justice. Indeed, it is an inherent part of the defence advocate’s job description to utilise scientific methodologies to predict and eliminate those who are scientifically calculated to make decisions based on stereotypes.

According to the defence advocate, systematic jury selection by the accused goes to the very root of our fair jury system – the accused has the right to follow his or her personal objections, until exhausted, to ensure the belief that he or she is accurately represented by those empanelled.

In Victoria, the Juries Act 2000 currently grants a single defendant six ‘peremptory challenges’ so that he or she can oust jurors without having to show cause to the presiding judge.[3] This procedural right, in my opinion, is sound as it rightly promotes a sense of procedural fairness for the accused and ensures that the accused is more likely to accept an adverse decision reached by the jury panel.

However, when our adversarial system of justice accords the same procedural right to Crown prosecutors, serious injustices follow suit. In Victoria, the Crown is provided the ability to ‘stand aside’ six jurors for a single defendant without having to show cause to the judge.[4] The practical difference between the right to ‘stand aside’ and ‘peremptory challenge’ is minimal, as the juror who has been stood aside joins the back of the jury queue and is highly unlikely to be empanelled.

As with all democratic ideals, serious threats pose to minority groups such as the Aboriginal population who are over-represented in the criminal justice system and under-represented as peers of the accused. For example, in the 1981 unreported decision of R v Smith, Judge Martin of the NSW District Court discharged the jury after numerous challenges by the Crown to empanel an all white jury against an Aboriginal defendant. In doing so, His Honour expounded, ‘It is a very important principle of our system of justice that justice must not only be done, it must appear quite clearly to be done… If I allow the situation to continue some members of our community, of our country, may think that appearances suggest that justice is not being done’.[5]

At the heart of the problem is the fact that prosecutors must be seen as being objective. Using stand aside procedure to affect the structure of the jury pool promotes the notion that the Crown is fundamentally subjective. One must remember that the burden of proving the guilt of the accused rests with the prosecution. Thus, the question of who is empanelled should not be of concern to the prosecution as ‘beyond reasonable doubt’ should apply to all jurors – not just those whom the Crown deems as most likely to agree. And if there is a clearly subjective juror within the jury pool, then the prosecutor should be required to stand up and justify his or her challenge by showing cause (under s 37).[6]

Admittedly, Prosecutorial Guidelines in Victoria expressly stipulate that Crown prosecutors are prohibited from exercising the right to stand aside on the basis of age, sex, race, physical appearance, and occupation.[7] The Guidelines provide that stand aside procedure should only be adopted in circumstances where a juror:

  • is seen talking to a party involved in the trial;
  • is related to the defendant or practitioner;
  • has made a biased remark;
  • has expressed an unwillingness to participate; or
  • has an obvious disability.[8]

The problem with these Guidelines is that there is no reasonable way of ascertaining if prosecutors are legitimately adhering to the Guidelines or simply engaging in jury stacking. If we want transparency and prosecutorial accountability in the jury empanelling process, it is my belief that we must do away with stand aside procedure (s 38) and demand prosecutors show cause to the presiding judge under s 37 as to why they believe a certain juror cannot be competent or objective to sit on the jury panel.

Only then will justice be done, and seen to be done.

What do you think?

Ali Besiroglu

[1] Harper Lee, To Kill a Mockingbird (1960) Ch 20, p 200.
[2] See Bray & Kerr, The Psychology of the Court Room (1982).
[3] Juries Act 2000 (Vic) s 39.
[4] Juries Act 2000 (Vic) s 38.
[5] Neil Rees, ‘Case Note: R v Smith’ (1982) 813 Aboriginal Law Bulletin 11. See also, J.A. Scutt, ‘Trial By a Jury of One’s Peers?’ (1982) 56 Australian Law Journal 209.
[6] Juries Act 2000 (Vic) s 37.
[7] Office of Public Prosecutions Victoria, Policies and Guidelines, r 6.3.3.
[8] Office of Public Prosecutions Victoria, Policies and Guidelines, r 6.3.4.


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‘Sexting’ Laws in Victoria: Distinguishing Child Pornography from High-Tech Flirtation

Back when I was in primary school, our lunchtimes occasionally consisted of playing ‘kiss chasey’ – a game of tag by mode of kissing. I was never the popular kid in the schoolyard and on the rare occasion where I had been kissed or selected to start the game I remember most girls would run for dear life. In hindsight, it dawned on me whilst wearing my criminal law hat that any child over nine years of age playing kiss chasey could in theory warrant a charge of indecent assault where consent to the kissing had been revoked.[1]

Similarly, we’ve all heard about the game of ‘truth or dare’ where some teenager had been dared to engage in a ‘nudie run’- and actually did it. Well if the act was to occur in a public place the teenager could theoretically receive a term of imprisonment for obscene exposure.[2]

Fortunately for us, prosecutorial guidelines require public demand before prosecution is pursued,[3] and no one in their right mind would want to criminalise innocent childhood curiosity and flirtation. Right? Apparently not.

Sexting involves ‘creating, sharing, sending or posting of sexually explicit messages or images via the Internet, mobile phones, or other electronic devices by people’ under 18 years of age.[4] An online survey conducted by Monash University’s Just Leadership program affirmed international trends that almost a third (28.4 per cent) of its participants had sent a sext of themselves to another, and 40.5 per cent had received a sext from another via mobile phone.[5] Thus, with the advent of the now ubiquitous camera phone, it appears sexting has become the new high-tech platform of childhood flirtation and sexual curiosity. In fact children as young as nine years of age are reported to have engaged in the sexting trend in Victoria.[6]

In the eyes of the black letter law sexting is illegal, but unlike the aforementioned crimes of indecent assault and obscene exposure, sexting is increasingly prosecuted under child pornography legislation.[7] This has resulted in decimating life consequences for teenagers and young adults who produce and possess sexts.[8] In one Victorian case, an 18 year old male unknowingly downloaded sexts onto his computer from his phone which were initially sent to him by his female friend.[9] The police found the images whilst investigating an unrelated matter and despite the offender admittedly posing no threat to the community, the Magistrate was forced to register him on the Sex Offenders Register for eight years under Victoria’s mandatory registration requirement.[10]

There is no denying that sexting imports a greater element of danger than the supposed innocuous kiss chasey and truth or dare. Indeed, those who forward sexts onto others without the consent of the person in the image deserve to be punished by law for the distress and humiliation caused to the non-consenting victim. However, simultaneously punishing the victim for producing child pornography fails to consider the consensual, non-exploitative circumstances of sexting.

Legislators must embrace the technological evolution of childhood sexual exploration and distinguish the production of child pornography from consenting, non-exploitative sexting. The Judiciary must also be afforded the discretion to not place an offender on the Sex Offenders Register if he or she does not pose a threat to the community. Only then will the Sex Offenders Register move away from its current distorted objective of fostering a generation of sexually repressed neurotic adults, and move towards its original purpose identified by Mr Haermeyer in his second reading speech as, ‘Victoria’s commitment to lead the fight against the insidious activities of paedophiles and other serious sex offenders’.[11]

What do you think?

Ali Besiroglu

[1] Crimes Act 1958 (Vic) s 39.
[2] Summary Offences Act 1966 (Vic) s 19.
[3] Richard Fox, Victorian Criminal Procedure (2005) p 56.
[4] Parliament of Victoria – Law Reform Committee, Terms of Reference – Inquiry into Sexting (2011) <online>.
[5] Sam Pang (Ed.) ‘Sexting and the Sex Offender Register: Review and Recommendations’ (2011) Monash University, Just Leadership Program, p 28 <online>.
[6] Elissa Doherty ‘Children as Young as Nine Now Engaging in the Trend of Sexting in Victoria’ Herald Sun (Victoria), 11 February 2010 <online>.
[7] See Crimes Act 1958 (Vic) ss 68, 69, 70.
[8] Ibid.
[9] See Nicole Brady, ‘Sexting Youths Placed on Sex Offenders Register’, The Age (Victoria), 24 July 2011 <online>.
[10] Sex Offenders Registration Act 2004 (Vic) s 7.
[11] Victoria, Parliamentary Debates, Legislative Assembly, 3 June 2004, p 1851 (Andre Haermeyer) <online>.

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Eddie-torial: Why the High Court sunk the ‘Malaysia Solution’ in Plaintiff M70/2011 – Where to now?

Like many Australians over the course of the last few years I have become increasingly dismayed at the methods used to process refugee claims. As someone who initially supported the idea of offshore processing and rigorous enforcement of our borders, dismay represents a silent shift in attitude. Mercutio’s ‘a plague on both your houses’ remark reverberates in my memory whenever I hear the jingoism of ‘Stop the Boats’.

The recently delivered High Court decision effectively reads the last rites to offshore processing as it currently stands and should be a circuit breaker for change. Unlike other significant High Court decisions such as Mabo and WorkChoices, Plaintiff M70/2011[1] can join the illustrious company of the Communist Party Case as a decision without allegations of activism or fanfare, but the accomplishment of the sound application of legal principle.

The High Court, particularly through Chief Justice Robert French’s judgment, will permit offshore processing under the Migration Act 1958 (Cth) only when:

a)     The Minister makes the decision in ‘good faith’;
b)     The refugees have been inside Australian jurisdiction; and
c)    Where the declared country has a well-developed system of refugee protection laws encompassing both international and national laws.

This concept is radically different than the scheme in the Migration Act which permit offshore processing under s 198A(3) where the Minister:

(a)  declares in writing that a specified country:

(i)  provides access, for persons seeking asylum, to effective procedures for assessing  their need for protection; and
(ii)  provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii)  provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv)  meets relevant human rights standards in providing that protection.

As the aficionados of administrative law would recognise, the mechanics of this test emerge by characterising the s 198A(3) factors as jurisdictional facts required to be present before the Minister is empowered to make a decision to process refugee claims offshore.

Also, the Teoh presumption (an interpretation of Australian law which conforms with international law) makes a comeback into Australian jurisprudence. Thanks to Justice Kiefel, the new interpretation upholds and is consistent with our obligations under the Refugee Convention, namely non-refoulement.[2] As such, the focus shifts from the declaration made by the Minister to the country which the Minister wants to make an offshore processing site, its system of laws, and attitude to the rule of law. Simply having the laws will not be enough. The rule of law must be respected and unjust laws and loopholes will attract scrutiny.

I wonder if this also represents a greater turn to rights based jurisprudence in Australia?

The High Court is effectively now saying that mere compliance will not equal legality. Even more prescient in the new interpretation is the fact that the Court will look past the Minister’s declaration and ask for evidence of what is happening on the ground where refugees will be processed. Courts will now be entitled to lift the veil beyond the constitutional and legal safeguards as they exist in formality. If the declared country has a robust legal system and commitment to the rule of law, it is possible – although in the Antipodes, regrettably, this is hard to come by.

The ‘Malaysia Solution’ failed the test because:

  1. Malaysia was not a signatory of the Refugee Convention;
  2. Corporal punishment exists under Malaysian Immigration laws and other provisions
  3. Poor access to health services and education for refugees;
  4. A mediocre assessment of the Agreement by the UNHCR;
  5. Credible reports of abuse; and
  6. Non-signatory to the ICCPR and the ICESCR

Practically speaking, in order to successfully uphold the s 198A(3) declaration, any purported declaration would require UNHCR reports, Human Rights Council reports, DFAT briefings on local conditions, a sophisticated legal system, and a commitment to the rule of law in order to satisfy the new test. When coupled with a newfound willingness to move away from deference to the executive government, any declaration will be vulnerable to being struck down by courts as contrary to law.

Moving forward from Plaintiff M70/2011, the options become increasingly limited with either,

(1) a statutory override of the ruling;
(2) abandoning the policy altogether and processing refugee claims onshore;
(3) intercept and detain refugees before the enter Australian waters, but that would have its own set of problems; or
(4) roll the dice and take your chances…

One last point to keep in mind, any attempt to override the decision would want to be precisely worded lest the High Court becomes even less deferential and decides to go the Parliament and not just the Executive in round two.

Chris Edwards

[1] [2011] HCA 32 (31 August 2011).
[2] This principle is enshrined in Article 33(1) of the United Nations Convention Relating to the Status of Refugees- ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion’. This also represents a peremptory norm of international law and cannot be violated by any state by way of treaty, international customary law, national constitutional law or ordinary national legislation per Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002).


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