the courts and the legislature, Parliament
responded to the issues raised by the case
regarding the interaction of individuals with a
disability with the infringements regime. In 2013,
an amendment to the Infringements Act was
passed to create a right for a person to apply for
a rehearing where there is new or not previously
considered information (such as an undisclosed
mental illness) that would make imprisonment
disproportionate. This right to apply for a
rehearing is in addition to the duty of Magistrates
to inquire into a person's circumstances before
making an imprisonment order.
assembly (sections 15 and 16 of the Charter),
along with the right to privacy (section 13(a)),
were raised in four cases involving political
protest.
political protest against a retail store in a
Melbourne shopping precinct raised their
right to freedom of expression in proceedings
against them in the Magistrates' Court. To
be guilty of the offence under the Summary
Offences Act 1996, a person must be a
"wilful trespasser" who has refused to leave
after being warned to do so by the owner
or occupier. The Magistrate held that the
protestors had exercised their lawful right as
members of the public to enter the shopping
precinct and it would be inconsistent with
their right to freedom of expression to find that
their non-violent conduct transformed them
into "wilful trespassers". The protest had not
caused a significant breach of the peace or
threat to public order that would justify limiting
their right to freedom of expression.
painting over an advertisement on a bus
shelter in what he called a "simple non-violent
protest against advertising". The Supreme
Court rejected the argument that the right to
freedom of expression provided a defence
to the criminal conduct. The Supreme Court
decided that while the conduct imparted
an idea, it was not "expressive conduct"
protected by the right because, as a matter
of public policy, the right to freedom of
expression does not extend to protect acts of
property damage.
footage of a peaceful protest, which contained
images of her, breached her right to privacy
and her rights to freedom of expression and
peaceful assembly because of the "chilling
effect" it would have on her involvement in
future demonstrations. VCAT held that there
was no breach of the privacy right because
the retention complied with the Information
Privacy Act 2000 and there was no reasonable
expectation of privacy in the circumstances.
VCAT considered that while the rights to
freedom of expression and peaceful assembly
may be breached by police action that has a
chilling effect on protest, those rights were not
limited in this case by keeping the footage.
City Council and Victoria Police enforced
bylaws to break up the "Occupy Melbourne"
protests. In the Federal Court case of Muldoon
v Melbourne City Council & Ors, the protestors
argued that these actions were inconsistent
with their implied constitutional right to
freedom of political communication and with
their Charter rights to freedom of expression
and peaceful assembly. At the time of writing,
the decision in this case is reserved.
interests (section 17) was the focus of the
Supreme Court case of A & B v Children's Court
of Victoria,
that they were not mature enough to give direct
instructions to a lawyer in child protection
proceedings. At the time of the case, the
Children, Youth and Families Act 2005 entitled
children who were "mature enough to give
instructions" to be represented by a lawyer acting
on their instructions.
as "direct instructions representation". Where a
child is not mature enough to give instructions in
child protection proceedings, the model of
representation is "best interests representation";
where a lawyer acts on what he or she considers to
be in the child's "best interests".