Monthly Archives: August 2016

The law is just so old and outdated! – Or is it?

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I have seen a number of posts on social media about how old and archaic some laws are, citing the title of the legislation with the year it was enacted as the example of how old it is.  Now this article is not a debate about if the law is right or wrong or even if it’s relevant to our current times.   Let’s be honest, everyone’s opinion is naturally different.  You would need a year off work, cartons of wine, lots of patience and buckets of coffee to really delve deep to consider the legal, moral and ethical considerations of our laws.  This article briefly addresses the myth regarding legislation and its title. Not everyone has had exposure to the law so it can be confusing if you don’t understand how law is enacted and later amended.

I follow a few bloggers online through social media.  Family Law is a discussion that comes up a lot on social media blogging and group pages. I often see comments about separation and discussion generally turns to the Family Law Act 1975 (Cth) (“FLA”) stating, “how can a law made in 1975 be applicable to our current times,” and “the law needs to change it was made in 1975,” just to name a few.

Myth v Fact. At the time of writing this article, the FLA has, since 1975, been amended no less than 79 times.  Now, not all of these are major amendments however, this law has been amended 79 times in 41 years.  Following these 79 amendments the title of the FLA has stayed the same with the year that the law was enacted, 1975.

As another example the Criminal Code 1899 (Qld) (“Code”).  The Code again delivers this same assumption “it’s super old.”  Hello!, The title says 1899!  However, again this law has been amended a number of time since its enactment.  One of the most recent at the time of writing this article is the insertion of a new section of the Code, s 315A regarding updated domestic violence laws made by the Criminal Law (Domestic Violence) Amendment Act 2016.

How is the legislation changed? By a range of people who have been voted into Parliament.  In brief, (as there really is a lot to changing Legislation);

  • The Queensland Parliament is made up of members of political parties (voted in).
  • A Bill is made (by a Minister) with a proposal for a new law or amendment and the Minister then seeks approval from cabinet.
  • If the cabinet approve, the Parliamentary Counsel prepares the Bill and its presented to the cabinet and members.
  • If approved, it is read into Parliament by the Minister (all members are provided with a copy).
  • The Bill is then read a second time (the minister talks about what the Bill intends to achieve). Discussion and debate takes place, sometimes changes are made.
  • The third reading then takes place, Parliament then votes.
  • If the Bill is voted in, it is sent to the Governor for royal assent. When assent is given the Bill becomes the law and it is then titled an Act of Parliament rather than a Bill.

So, using the Code above as an example the Criminal Law (Domestic Violence) Amendment Act 2016 was first a Bill before assent was given.  Following assent (at which time it becomes an “Act” and the law) the Code was then amended to include the new section 315A.  The date of the Code does not change; it remains at its original enactment date in 1899.

Hopefully this provides some insight into the title of our legislation and the myth that the law never changes.

For more information on this, the Queensland Government have released a handbook “The Queensland Legislation handbook” which provides some insight into this complex area of how Legislation is made in Queensland, located here.

Keep left unless overtaking at all times. Apparently not!

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I grew up in Victoria and from a very young age I was taught as a pedestrian to keep left when going up and down stairs/escalators and generally when walking on the footpath (unless overtaking).   For many years as a child I just assumed this was a law, in any event it was just how things were done where I grew up in Victoria.   It seemed logical, pedestrian traffic flowed, it just worked!

Naturally when I got my driver’s license in the 1990’s this was one of the main things that stuck with me.  Keep left unless overtaking.  Simple, I could easily transfer my pedestrian life rules to my driving career.   It is now so highly ingrained into me, that until now when I have actively thought about it, I have realised how wrong it feels to just drive along in the right lane and how I always keep to the left.  I have also realised that still to this day I naturally keep to the left in stairs, escalators, supermarket aisles and footpath’s and that a lot of people around me don’t.

I have lived as far north as Palm Cove and as far south as Gordonvale.  One thing I have noticed when driving in and out of town is the failure of people to keep left unless overtaking.  However, the highway north of Cairns involves a lot of roundabouts and turn off’s which understandably can pose difficulty for keeping left.  South side in my experience flows a lot smoother and there is more room to move.  However, as much as south side flows, this is highly dependent upon your time of travel, if you are travelling in peak hour that flow can quickly become a mess. It’s at this point, when the traffic is a mess where I start talking to myself about the lack of motor skills my fellow drivers have.  While I know it is not always possible to keep left, despite your best intentions,  I nevertheless take this time to have an internal dialogue with myself trying to work out why someone is travelling 60km an hour in the right hand lane of an 80km an hour roadway.  My mind boggles,  Are they doing this on purpose?, why would they do that? and how did they even get their licence in the first place?

I wanted to write this article about the road rules and how the law states that you need to keep left unless overtaking in order to get the word out and help the north and south bound traffic flow better (I know, #biggoals).  My vision was this article would go viral, all motorist would start keeping to the left unless overtaking, traffic as a result would just flow and all would be well in the world.  However, as a result of reviewing the Queensland Legislation, I am now deeply embarrassed about my internal judgy conversations with myself as it appears that my driving style (which I thought was a road rule for the last 18 years) of “keep left unless overtaking” is only applicable in certain circumstances.

In brief, the Transport Operations (Road Use Management—Road Rules) Regulation 2009  (Qld) states that when you drive on a multi-lane road where the speed limit is more than 80km/h (90km+), you must not travel in the far right lane (fines apply) unless you are:

  • overtaking
  • turning right
  • making a U-turn
  • avoiding an obstacle
  • entitled to drive in that lane because of an official traffic sign
  • driving in congested traffic.

In any event, if there is a sign saying “keep left unless overtaking” you must comply with the sign.

This means that, for years I have been incorrectly judging drivers in the 80km and below range for their driving skills as they were within their legal rights to be in that right lane or that far right lane despite the fact they were not overtaking (sorry!).  However, I take comfort in the fact that the few people I have told about this article were also of the same opinion as me, that the road rules are to keep left unless overtaking at all times.

Lesson to be learned.  Road rules should be reviewed periodically to keep up to date.  The current QLD road rules can be located here.

On a side note, I would be interested to hear if anyone could shed any light on their understanding of footpath and supermarket isle etiquette in FNQ? lefty/righty? Or centre?

 

What if Taylor Swift and Kanye West lived in Queensland. Could they legally record their conversation?

Telephone conversations and recording devices

These days I often hear and see on social media discussions regarding the recording of conversations.  More recently the alleged telephone conversation between Kanye West and Taylor Swift went viral. The first thing I thought of when I heard about this was, really? that’s the news? this was quickly followed by, “you can’t do that in Queensland.”

The federal legislation provides that it is illegal to record a telephone call with a device physically attached to the phone (mobile or landline) except where authorised  in specific circumstances (generally these are related to warrants etc).  (Telecommunications (interception) Act 1979 (Cth)).

Queensland law is not as strict as some of the other states and territories when it comes to the recording of other conversations.  In brief, Queensland law states;

  • You can legally record a telephone conversation with an external device provided you are a person who is a party to the conversation;
  • You can legally record a face to face conversation if you are a party to the conversation;
  • It is illegal to record a conversation (whether by telephone or face to face) if you are not a party to that conversation.  (Invasion of Privacy Act 1971 (Qld))

However, if you are recording conversations, with a view to use them as evidence, then you should obtain legal advice as the law differs on the admissibility of recordings in the different types of legal actions.  If you do lawfully record a conversation then you should also be aware that the publication or communication of that private conversation is prohibited in all jurisdictions.

So, if this alleged incident involving Kanye and Taylor occurred in Queensland;

  • The device recording the alleged conversation could not be attached to a phone being used by Kanye or Taylor;
  • The device recording the alleged conversation must have been recorded by either Kanye or Taylor not a third person (this si because only Kanye and Taylor are a “party” to the conversation) ; and
  • Both Kanye and Taylor would be prohibited from publication or communication of the recording (i.e they cannot release the recording  to the media (or anyone else)).

However, before you run off and start recording conversations you are a part of, you should consider the purpose of a recording and if you legally can record the conversation.  If it is for evidence, then you should seek legal advice about your circumstances for seeking the recording, the manner of the recording, the admissibility of the recording and the impact (good or bad) the recording could have on your case, as despite contrary belief, not all recordings are looked upon favourably by a Court.

For further general information relating to current laws about recording telephone conversations, see the Australian Information Commission https://www.oaic.gov.au/about-us/ and the Queensland Information Commissioner  https://www.oic.qld.gov.au/

Please also remember that these articles are providing brief general information and should not be construed as legal advice.  Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the current law specific to your circumstances.