Clarity Law

Introduction

Contravene order about device information from digital device (or a section 205A offence) is a charge which a defendant may find themselves facing in the event that they refuse to allow access to their devices when required by a search warrant under ss 154(1) or (2), 154A (2) or 178A(1) of the Police Powers and Responsibilities Act 2000 (PPRA).

The offence is taken very seriously by the courts and arose as a result of changes to the Criminal Code aimed at addressing serious and organised crime. The District Court of Appeal say that the offence is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order. It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation.

Elements of the offence

The offence is a straightforward one, it arises when a person who, without reasonable excuse fails to give access to an electronic device when served with a relevant warrant under the PPRA or the Crime and Corruption Act.

This may look like refusal to give the password to an identified laptop or mobile phone during the execution of a search warrant.

It is important to note that Police in the serving of a warrant that contains the authority to search devices, must notify a person that failure to comply without a reasonable excuse constitutes an offence against s205A of the Criminal Code.

Defences

The key defence available for a defendant is having a reasonable excuse for not giving access to the device. The Court has determined that a reasonable excuse takes its ordinary meaning, effectively “would the average person believe that the excuse is reasonable”. The key case for the defence of reasonable excuse is Commissioner of Police v Barbaro [2020] QCA 230, where the court found that legal professional privilege is protected and could constitute a reasonable excuse. The Court made a clear distinction that not every instance where privilege is claimed will be a reasonable excuse, it will depend on circumstances and will be on the defence to establish a claim for privilege.

This is not the only example of a reasonable excuse, in early 2023 the Court determined in Queensland Police Service v Ahmed [2023] QMC 2, that the defendants excuse of not allowing male officers access to his device was reasonable, as the defendant’s phone contained photographs of his “uncovered” wife (note – the court heard and was satisfied that the defendant held genuine religious beliefs which would have been infringed had he allowed another male to view his uncovered wife). The court held that (amongst deficiencies in the prosecution case) a genuine religious belief could be constituted as a reasonable excuse to not comply with a warrant to provide access.

The legislature has deliberately excluded self-incrimination as a reasonable excuse. That is to say, it is not a reasonable excuse to not comply, if complying would incriminate you of an offence. This is consistent with the legislative intent for allowing law enforcement to conduct investigations into offences.

Why should I contact a lawyer if I am charged with this offence?

The simple answer is that the Court takes this charge very seriously. The most common penalty for this offence is a period of imprisonment, either wholly or partially suspended or to be served in actual custody.

The next question you might ask, is “if I am going to receive a sentence of imprisonment, why should I get a lawyer?” There are four different means in which imprisonment can be served (Russell Tannock of our office has written a comprehensive article here).

By engaging Clarity Law we are able to ascertain whether there is an available defence. We are able to review your case and assist in obtaining the best available outcome in the circumstances.

Conclusion

This article, is by no means a complete guide to this type of offence, but should be a useful starting point for someone who has been charged but not yet been to court. If you are charged with an offence, please contact our office for a free initial consultation.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

Introduction

This article is aiming to help clarify some issues people may come across in the interaction between civil domestic violence orders (DVO), criminal charges for breaching those orders, and family law orders – particularly in connection with parenting issues.

Credit is due to Justice Hogan of the Federal Circuit and Family Court, from whom I adapted some of the material in this article.

I would also like to make clear that Clarity Law specialises in Criminal and Traffic law. We do not practise in the DV space (except for breaches of a DVO which we can help with) or family law space. In other words, what is shared here must not be relied upon as legal advice. It will not serve as a substitute for specialised legal advice.

Social Context

According to Queensland police statistics, there were 53,075 breach domestic violence order offences prosecuted in 2022. This is compared to 6,961 offences in 2002. This does not necessarily mean that the prevalence of domestic violence has increased based on those numbers alone (and indeed, if that was the case, then the government’s efforts to tackle domestic violence would be a massive failure), but it does confirm that the overlap between the criminal law and family law is as relevant as ever.

We can only assume that prosecutions for breaches of domestic violence orders will increase even more, due to the Queensland government’s recent introduction of legislation regulating ‘coercive control’ within domestic relationships. The concept of coercive control is better explored in a separate article, but suffice it to say, it broadens the definition of domestic violence so widely that we are guaranteed to see more applications for domestic violence orders, and correspondingly, more breaches of those orders. Clink here for a guide targeted particularly at charges for breaching a domestic violence order.

A Scenario

Consider this scenario: a husband and wife live together with three children. There is a domestic violence order in place. The husband gets drunk, has an argument with his partner about previous infidelity, and during the argument he slams his hand down on the kitchen bench and threatens to “belt” his wife and calls her a “whore”. She calls police, and he grabs her phone and throws in hard onto the ground, smashing it. This is all within the earshot of the young children.

Police arrest the husband for breaching a domestic violence order. Police apply for, despite the wife’s objections, much more restrictive conditions in the current domestic violence order.

Eventually, the husband pleads guilty to common assault, breaching a DVO, and wilful damage (with the assistance of Clarity Law, of course). On the day of sentence, the Court confirms an order which prevents the husband from having interactions with the ‘aggreived’ (the wife) or the children, without written permission of the aggreived. After he is sentenced and the DVO is varied, he texts the wife to arrange to have contact with the children. She replies “they don’t want to see you.”

Suddenly, he has a big problem: he can’t persistently contact her without risking a breach of the DVO. So, where to from here?

Some Options to Get Contact

He could leave the legal system out of it, and continue to try and interact with his wife in an amicable way. This option is not recommended. In my experience, this option leaves the person who must obey the order open to further charges. It only takes a little deviation from the rules of the DVO for him to get charged with a criminal offence. Even if the wife is not going to call police over trivial breaches, there is a likelihood that there is going to be a disagreement between them at some stage. There will always be the looming threat of a DVO breach allegation in the background.

He could go back to the Magistrate’s Court to seek a ‘variation’ of the recently changed DVO. The variation aim to make the order less restrictive and make it easier for him to see his children. Trying to do this without the aid of a solicitor is not recommended. The Court may agree to change the order, but this is unlikely in circumstances where it has been varied recently. It is generally quite difficult for a ‘respondent’ (the husband in this scenario) to get a DVO varied.

He could go to the Family Court and ask for ‘parenting orders’ which will allow for him to have regulated contact with his children. Even if this seems like a ‘hassle’, it is likely the safest and most effective way for him to get legal contact with his children. At the least, he should seek an initial consultation and some advice.

How DVO Orders and Family Court Proceedings Interact

If he has decided to initiate family law proceedings, it may be helpful to know how the domestic violence orders/convictions interact with family law proceedings.

The Family Court, when considering what parenting orders to make, must keep the ‘best interests of the child’ squarely in mind.

The Family Law Act specifically tells the Court, when considering this question of ‘best interests’, that it must give primary regard to:

(a)  “the benefit to the child of having a meaningful relationship with both of the child’s parents;

and

(b) “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

The law states the need to protect the child must be given higher priority than the child having a meaningful relationship with both parents.

The Family Court is additionally obliged to consider, when assessing a child’s best interests:

• “any family violence involving the child or a member of the child’s family;
• if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

o   the nature of the order;

o   the circumstances in which the order was made;

o   any evidence admitted in proceedings for the order;

o   any findings made by the court in, or in proceedings for, the order;

o   any other relevant matter”.

It is significant to note that a party to a proceeding is required under the family law legislation to inform the court of family violence orders:

“60CF Informing court of relevant family violence orders

(1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

(2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

(3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.”

The Court is additionally instructed to make its own assessment of the possible risk of family violence. This will necessitate the Court considering all available material when making that assessment, regardless of what has happened in other courts:

“60CG Court to consider risk of family violence

(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

                     (a)  is consistent with any family violence order; and

                     (b)  does not expose a person to an unacceptable risk of family violence.

(2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”

There is a legal preference, then, to make family court orders which are consistent with any domestic violence order, however, family court orders will invalidate parts of domestic violence orders to the extent the domestic violence order conflicts with a parenting order.

Presumption of equal shared parental responsibility

The Family Law Act presumes equal shared parental responsibility, that does not mean, as is often mistakenly believed, that this means equal time in parental contact. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

The presumption equal shared parental responsibility does not apply where there are reasonable grounds to believe that a parent of the child has abused the child or engaged in family violence.

Summary

The foregoing means, in laymen’s terms, that the Family Court judge will inevitably know about the domestic violence order allegations. Even if a person has consented ‘without admissions’ (this is, agreed to a DVO without admitting the facts constituting the application for the DVO), the allegations are something the Court is obliged to take into account. People sometimes think if they have consented without admissions to a DVO the Family Court will then simply put that aspect of the case to one side. Not true.

Sometimes there will be criminal charges involving alleged domestic violence and a person is acquitted of those charges. The nature of those allegations will still be considered by the Family Court and the other party in the family law case is not prevented from rehashing those allegations in the Family Court.

Part of the reason why the Family Court considers what has happened in civil DVO orders and criminal proceedings is because one legal test the Court must apply, in relation to parenting orders, is an assessment of whether there is an ‘unacceptable risk’ to the child. This is quite a different legal test from ‘proof beyond reasonable doubt’, which is the legal test in a criminal case, or ‘the balance of probabilities’ which is the civil/DVO application test.

The Family Court does have the legal authority to overrule parts of domestic violence orders to facilitate its parenting orders.

What Does it all Mean?

Practically speaking, once a person initiates or responds to Family Court proceedings, the person should expect any allegations (proven or otherwise) of domestic violence to make their way into the Family Court proceedings. The Court will give any allegations of domestic violence serious consideration, even if the allegations do not state the child or children were involved in any way. This is not necessarily fatal to the person getting contact with their children, but it may mean supervised contact with the children at first. It will also mean the person may be obliged to explain or put the allegations into context in response. The person will likely help their cause by engaging in efforts to demonstrate rehabilitation to the Court, as this will inform the Court’s assessment of ‘unacceptable risk’. Rehabilitation may involve participating in such programs as “Men Choosing Change’ or alcohol counselling if alcohol was involved.

Conclusion

This is as far as I can take my guidance, but I hope the reader, if nothing else, takes from this article the importance of getting expert advice in relation to domestic violence orders and possible family law proceedings. People who fail to act in this space can be prevented from seeing their children for a long time. It is a hard road to fight it out in court, but is probably the easier option compared to giving up or doing nothing.

How Can Clarity Law Help Me?

Despite the content of this article, we do not involve ourselves in domestic violence orders or family law. We specialise in criminal and traffic law. If you have a contravention of a DVO charge we can absolutely help. Because we specialise, we are very good at what we do. We are able to assist with criminal charges related to domestic violence, and offer referrals to law firms we trust for something beyond our practice areas.

Recently, we succeeded in an appeal to the District Court. We appealed a magistrate’s decision to record a conviction on our client’s criminal record. At the appeal hearing the judge decided to change the magistrate’s order so a conviction was not recorded in her criminal record.

This is significant for our client because it means her conviction will now not be revealed in any criminal history check. I also means she will not have to declare the conviction for the purposes of travel.

How we did it

In the Queensland court system, if a Magistrates Court imposes a penalty for a criminal offence which the defendant (or his lawyer) deem as being excessive or not imposed by proper application of the law, the defendant can then appeal to a higher authority to change magistrate's decision, that higher authority is the District Court.

To appeal a magistrate's decision, the person appealing (or their layer) needs to file a notice of appeal within 28 days of the decision. After that you are required to file a written outline of argument with the District Court registry, and serve a copy of that outline on the Director of Public Prosecutions. The DPP will represent the Commissioner of Police in the appeal.

In this particular case our client pleaded guilty to a charge of assault occasioning bodily harm. The assault was the pulling of a barmaid's hair and ripping some of the hair out from her scalp. The offence was aggravated because it was committed in a licenced venue within a safe night out precinct of the Sunshine Coast.

Balanced against this, in our client's favour, was the fact that she had absolutely no criminal or traffic history, she had written an unreserved apology to the complainant, she had undertaken alcohol and psychological counselling, she was gainfully employed, and she pleaded guilty at an early opportunity. She was also supported by her husband in court and by character references which spoke very highly of her usual demeanour and absence of aggression.

I personally appeared for the client in the Magistrates Court and argued that a period of probation without conviction was a suitable penalty.

The police prosecutor argued for a sentence of imprisonment, where my client was either to serve some actual time in prison, or her sentence should be wholly suspended. This outcome would necessitate the recording of her conviction.

The magistrate decided to impose probation on my client. However, the sticking point was he did not make me or the client aware that he was going to record a conviction until the at the very end of the hearing of the case. After I heard this I jumped up and asked for an opportunity to make further submissions about the recording of a conviction. The magistrate rebuffed my request, stating that in his opinion given the pain and suffering caused to the complainant and the fact my client held onto her hair for about a minute, that a recording of a conviction was suitable.

We appealed the case on the ground that it was “manifestly excessive”. I prepared the written argument and argued the case in the District Court personally.

The “manifestly excessive” appeal ground means that if the District Court judge hearing the appeal agrees with the argument that the penalty imposed by the magistrate was so harsh that it did not fall within the magistrate's proper exercise of his sentencing discretion, then the District Court ought to change the outcome.

I supported my arguments with a case from the Court of Appeal [R v ZB [2021] QCA 9], and a case from the District Court [NHR v The Commissioner of Police [2021] QDC 67]. The judge in the NHR case decided that a magistrate recording a conviction for a first time offender who punched another patron in a pub, was manifestly excessive. The judge also reviewed other similar cases where a judge had determined that the recording of a conviction for a first-time offender for a charge of assault occasioning bodily harm was excessive.

The short version is, my argument was supported by good cases.

Representatives for the Director of Public Prosecutions opposed my arguments, stating that the magistrate's decision did fall within the proper bounds of his sentencing discretion.

Conclusion

Ultimately, the judge agreed that the recording of the conviction was manifestly excessive, but also identified an appeal point himself, which was our client had been denied “natural justice” because we were taken by surprise by the recording of a conviction, and I was not given an opportunity to respond to that aspect of the magistrate’s decision.

The judge overruled the magistrate’s order and ordered that no conviction should be recorded in our client’s criminal history.

Experience matters

We at Clarity Law are all experienced lawyers. I practised as a barrister for years before joining Clarity Law as a solicitor. Our experience means we are able to identify when a magistrate has made an error, and properly protect our clients’ rights by appealing that error when it matters; as it did in this case. Fortunately, we very rarely appeal because we have a proven track record for excellent results for our clients!

Section 42 of the Domestic and Family Violence Protection Act 2012 (the Act) is a crucial provision that provides the court with the power to make or vary a domestic violence order after the defendant pleads guilty to breaching the DVO. The Act was introduced to protect individuals who have been victims of domestic and family violence. This article will examine the key provisions of section 42 and its significance where someone is charged contravening a domestic violence order.

What is Domestic Violence?

A court can make a domestic violence order if it is satisfied that a person has committed domestic violence or is likely to commit domestic violence in the future. Domestic violence can take various forms, including physical violence, emotional abuse, and financial abuse. It can also involve controlling behaviour and coercion.

The court can make an order even if the person who is likely to commit domestic violence has not yet committed the offence. The court must be satisfied that there are reasonable grounds to believe that the person is likely to commit domestic violence in the future. The order can be made against a family member, partner, or spouse.

What is a Domestic Violence Order

A domestic violence order can contain various provisions, including prohibiting the person from committing domestic violence or contacting the victim. It can also require the person to attend counselling or to undergo treatment for drug or alcohol addiction.

One of the significant advantages of a domestic violence order is that it can be made without the consent of the victim. This is particularly important because victims of domestic violence may be reluctant to come forward due to fear of reprisals. The order can be made on behalf of the victim by a police officer, a legal representative, or any other person authorised by the court.

Breaching a Domestic Violence Order

If a person breaches a domestic violence order, they may be subject to criminal charges. This can result in a fine, community service or if the offence is bad enough imprisonment. A breach of a domestic violence order is a serious offence, and the court may take it into account when considering future orders.  We have a full article on breaching a DVO and its consequences on our website.

What happens if I plead guilty to breaching a domestic violence order?

In addition to punishing a person for breaching a DVO the court may also make other orders to protect the aggrieved, such as varying an existing DVO to an order.

The law requires that the court must;

1. consider the order and whether, in the circumstances, the order needs to be varied; and then may;
2. vary the order

The types of variation the court might consider includes;

1. Limiting the ability of the defendant to see or communicate with the aggrieved or asking people to contact the aggrieved
2. Order the defendant to leave the premises and not come back (an ouster order)
3. Making the defendant attend an approved intervention program
4. Not allowing the defendant to come to the house without written permission
5. Limiting how close the defendant can come to the aggrieved

Will I get a chance to tell the court not to change the order?

The court must give the following persons a reasonable opportunity to present evidence and to prepare and make submissions about the variation of the order.

• the defendant
• the prosecuting authority for the offence
• reasonably practicable, the person who is or would be named as the aggrieved in the order.

In practice the discussion on whether to amend the current DVO is almost always done immediately after the sentence for breaching the DVO occurs.  It means a defendant or their lawyer must be ready with arguments seeking the DVO not be amended

How do I stop the court from amending the order

You cannot stop the court from considering whether to amend they order as they are required to do this.  What you need is well researched and considered arguments why the DVO should not be amended (if that is appropriate).

Are you really telling me if I breach a DVO I could be kicked out of home?

Yes.  Often the amendment to the order will be more severe and have more consequences than the actual punishment for breaching the DVO.

You could be ordered to leave the house even if the aggrieved wants you to stay there.  It all obviously depends on the facts of each case.

A recent case we saw a person had pleaded guilty to breaching a DVO.   There was no violence or threats of violence and the defendant had and criminal history.  The court after ordering a small fine then amended the order so that the defendant was only allowed to go to or stay at the home with the written permission of the aggrieved and that permission could be withdrawn at any time.  It not hard to imagine how this situation could lead to more breaches in the future.

If I am ordered to leave our home I will have nowhere to live

This is often the consequence of the change to the DVO.  The rental crisis has meant even getting somewhere to stay is difficult to say nothing of the cost.

What we find tends to happen is the couple will still live together in breach of the DVO which leads to constant arrests and in the end a likely prison sentence.

What can be done if the court changes the order?

You can apply back to the court to vary the order again but this is not easy and will take time.  The courts are very reluctant to change an order by removing clauses.

You are going to say you need a lawyer to represent you

We are.  There are plenty of charges where you could act for yourself.  There are other charges where its fine to use the duty lawyer at court.  However even minor breach could lead to the varying of the existing order for example preventing you from living at the family house unless your partner gives you written permission (that could be withdrawn at any time).

The consequences of the court amending the DVO means if you are charged with contravening a DVO you need an experienced lawyer not only to minimise the penalty but to seek the court not amended the DVO.  A duty lawyer just won’t have time to properly prepare to argue against the amendment of the DVO.

Summary

In conclusion, section 42 of the Domestic and Family Violence Protection Act 2012 is an essential provision that provides protection to victims of domestic violence. However the courts power to amend the existing DVO order even if the aggrieved does not want it or does not ask for it can have devastating consequences for the defendant.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

• Use our contact form and we will contact you by email or phone at a time that suits you
• Book a time for us to call you
• Call us on 1300 952 255 seven days a week, 7am to 7pm
• Email This email address is being protected from spambots. You need JavaScript enabled to view it.

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about contravening a DVO. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, as the charge can have an impact on you, your family and your employment or business.  

Charged with wilful exposure, or just want to know more about the charge?

What is Wilful Exposure

Wilful exposure is an offence which arises when a person wilfully exposes his, her or their genitals in a public place, unless that person has a reasonable excuse.

A person may also be guilty of Wilful exposure if, from a private place, that is so close to a public place that it could be seen from a public place, they wilfully expose their genitals so that they may be seen from the public place, without reasonable excuse.

The offence is made more serious if in the course of the exposure, it is done with the express purpose of offending or embarrassing another person.

The penalty for this offence carries a maximum penalty of—

(a) 2 penalty units; or

(b) if the offence involves circumstances of aggravation—40 penalty units or 1 year’s imprisonment.

What does the prosecution need to prove?

To be found guilty of wilful exposure, the Police Prosecution Corps must prove, beyond a reasonable doubt the following:

1. the defendant wilfully;
2. exposed their genitals;
3. in a public place; or
4. from a place that is so near a public place that it may be seen from the public place.

Note: It is sufficient for item 4 above, for a person to stand in their private residence in a street facing room (meaning facing the road) where that person could be seen from the road

Are there any defences?

The simple answer is yes.  There are a number of defences that are available;

1. The alleged act was not in or near a public place;
2. The defendant did not wilfully expose their genitals;
3. The defendant was in fact not the person whom is alleged to have committed the act (identification issue); and
4. That any such exposure was not done with the intent to offend or embarrass a person (if applicable).

It is not an offence of wilful exposure for a person to breastfeed a child in public or near a public place. This is a protected act under the anti-discrimination legislation and does not constitute an offence. If you have been charged with an offence of wilful exposure due to breastfeeding in public, contact our office for a free initial consultation.

Why should I choose you and not just represent myself?

Just some reasons include;

1. we know the Magistrates and what they want to hear to give you the best outcome for a wilful exposure charge
2. we have good relationships with the police prosecutors meaning we can often have them agree to the sentence we are asking the court to impose
3. we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
4. engaging us shows the court you are taking your charges seriously
5. your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
6. you will be fully informed of what is to happen in court and what this means for you after court
7. unlike the police or the magistrate, we are there to look after you, your privacy and your interests

Our experienced solicitors understand the sensitivity and potential embarrassment this charge may have on someone, any conversation had with our office is strictly confidential, with as few eyes on your file as necessary.

Conclusion
This article is by no means an exhaustive guide to this offence, but stands as a handy ready reckoner for someone looking for more information on or being charged with the offence. If you are charged with the offence, please contact our office for a free initial consultation.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

• Use our contact form and we will contact you by email or phone at a time that suits you
• Book a time for us to call you
• Call us on 1300 952 255 seven days a week, 7am to 7pm
• Email This email address is being protected from spambots. You need JavaScript enabled to view it.

The charge of Contravene direction or requirement is a common charge defendants can find themselves falling afoul of. The scope of the offence is broad, however generally would fall into two categories:

1. Failing to comply with a “move on” (or other like) order from a Police Officer; and
2. Failing to comply with a direction regarding a public official, such as not giving your name, address and date of birth to a public official. Note, it is a separate offence to obstruct or impede a Police officer in the conduct of their duties.

The offence

The offence, generally speaking is less serious than a similar offence of obstruct/assault Police.  It is also critical to note that this offence does not cover a circumstance where a person fails to provide a specimen of breath for a roadside or BAS reading, as that is a separate and often serious offence.

For a person to be charged with the offence, the following must have occurred:

• A Police Officer has given a reasonable direction or requirement in the following circumstances:
  • Required a person to give their name, address and date of birth to a public official; or
  • Obstructed a public official in the exercise of that official’s duties; or
  • Ceasing to comply with reasonable direction (a “move on” order) in circumstances where a person’s conduct is:
    • causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances;
    • interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place;
    • disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place;
    • disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place; and
  • A person or persons have, without a reasonable excuse contravened the requirement or direction.

For the charge to succeed, the Police Officer must give a warning that by failing to comply with the direction or requirement, the person is committing an offence.

NOTE, the offence becomes more serious (aggravated) if the offence occurs in (or in close proximity to) a licenced premises, or a public place that is designated as a safe night precinct (i.e Surfers Paradise, The Strand or Fortitude Valley).

Defences

In some cases, it is a defence to have a reasonable excuse for not complying with the direction. Reasonable excuse, does not have a hard and fast definition – but is more in the manner of interpretation. In essence, would an ordinary person consider that the excuse to not comply was reasonable?

It is further accepted that, unless it is specifically provided by law, it is a reasonable excuse to not comply with a direction or requirement, if doing so would tend to incriminate the person. Some specific exceptions to this rule relate to authorisation and conduct of forensic procedures, such as DNA collection. 

Penalty

In most circumstances, the offence is a fine only offence (some exceptions apply depending on the specific nature of the contravention), however this does not mean that it is something that should be taken lightly. A conviction for the offence may have a significant impact on a person, especially in circumstances where other criminal matters are present.

The maximum fine penalty will depend on whether or not the previously noted aggravating features are present.

If a person commits the offence in a prescribed place, the maximum fine is 60 penalty units (at time of writing is $8,675.00) plus the Court offender levy, which if heard in the Magistrates Court is currently $133.60.

Otherwise, a maximum fine of 40 penalty units ($5,750.00) plus any relevant offender levy.

Can Clarity Law help me?

It is understandable that for a person who is a first-time offender, they may wonder why they should engage a lawyer to act for them when they face a single contravene direction or requirement offence. 

Our dedicated team has experience handling these matters. Your Clarity Law solicitor will carefully review and consider your case and may be able to engage with prosecutors to negotiate depending on the facts. Engaging an experienced lawyer (such as us) will allow you to explore your options with respect of the offence, assist in reducing the fineable amount and improving the likelihood of no conviction being recorded.

We also have fixed prices so you know with certianty what you will pay.  Our prices can be found here.

Conclusion

This article, is by no means a complete guide to this type of offence, but should be a useful starting point for someone who has been charged but not yet been to court. If you are charged with an offence, please contact our office for a free initial consultation.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Book a time for us to call you
3. Call us on 1300 952 255 seven days a week, 7am to 7pm
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WorkCover is a taxpayer funded, government run insurer. A person can claim WorkCover if the person has suffered an injury at, or because of, work and due to that injury, the person must take time off work or can only work at reduced capacity. The injured person can then claim compensation to help keep them financially secure, while also working towards rehabilitation and getting back to work. 

The law governing the WorkCover rules is the Workers’ Compensation and Rehabilitation Act 2003.

A person must be entirely honest in their dealings with WorkCover. It is an offence to falsely claim an injury, or continue to work at full capacity while receiving Workcover payments or not to inform Workcover if the person returns to work while still receiving payments.

How offences are detected

Offences under the Workcover legislation are detected by direct investigations. For example, investigators appointed by Workcover may shadow a claimant to make sure he is not continuing to work despite receiving compensation. The investigation may involve confirming or assessing the extent of claimed injuries, so if a roofer claims he has injured his back such that he is unable to work on the top of a roof, the investigator may covertly follow him to make sure he is not working on any roofs. The investigator has the power to require a person to give information or documents relevant to an investigation (such as bank records).

Offences

A person who misleads Workcover about the extent she is working or the extent of her injuries, and simultaneously receives compensation or has a claim for compensation pending, commits an offence.

The two offences under the Act with the highest maximum penalties are fraud and providing false or misleading information. These are section 533 and 534 respectively.

Penalties

Section 533 makes it an offence to defraud, or attempt to defraud, Workcover. The penalty is a maximum fine of $71,875 or maximum imprisonment of 5 years.

Section 534 makes it an offence provide false or misleading information or documents to Workcover. The penalty for this is a maximum fine of $21,577 or a maximum of 1 year imprisonment.

Usual Penalties

The two main offences under the Workers’ Compensation and Rehabilitation Act 2003 are generally punished firmly. The penalty will normally be harsher the higher the amount defrauded or attempted to be defrauded. The usual penalty will be imprisonment, whether some actual imprisonment or a period of wholly suspended imprisonment. For a useful summary of case outcomes can be found here.

Possible Defences

For a fraud offence, all Workcover must establish is a worker who is receiving compensation engaged in work and did not notify Workcover or, to establish attempted fraud, the person lodged an application for compensation, engaged in work, and did not notify Workcover (before receiving compensation). This is easily established if someone earns money while receiving Workcover compensation. Usually, to successfully defend a charge of Workcover fraud, defence would have to show how, despite Workcover’s evidence, the defendant did not earn money while receiving Workcover compensation, or if she did so, it was a genuine mistake. Given Workcover will require the defendant to sign a document undertaking to inform Workcover of any change of circumstances, and will provide the defendant documents stressing the importance of reporting any changes in circumstances (i.e. improvements in injuries, starting a new job etc), a defence of mistake would require a high bar to succeed. 

Can Clarity Law Help Me?

We have experience in assisting with these types of cases. For the last case we had, we were able to reduce the alleged fraud by thousands of dollars, and we reduced the time period the client was alleged to have worked for while receiving compensation by months. We were able to do this by careful case analysis and negotiations with the prosecutors. However, these types of cases are time consuming and can be complicated, so we highly recommend you engage experienced private lawyers (such as us) to assist.

Conclusion

This article is by no means a complete guide to Workcover prosecutions, but we trust it serves as a useful introduction. If you are charged by Workcover, or are requested to give an interview, please contact our office for a free initial consultation. 

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Visit our website at www.claritylaw.com.au 
3. Call us on 1300 952 255 seven days a week, 7am to 7pm
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.