Volume 1
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Official Magazine of the Queensland Justices Association Inc.
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President’s Letter
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From the Board
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From the Registrar
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new members
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News in Brief
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editorial
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Article
A New Era for QJA.
QJA News Briefs
Police and the Emergency Situation Declaration D. J. L. Orchard
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Q&A Your questions answered
10 Training The Hon Paul de Jersey - Chief Justice (right) and Joeseph Law - QJA President
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Letters
Chief Justice accepts position as QJA Patron
12 Article Idiosyncrasies in the Law Dr Anthony Watson-Brown
14 branch activities 16
what qja means to members
The Chief Justice of Queensland, Justice Paul de Jersey, AC, has agreed to be the Patron of QJA. Justice de Jersey confirmed his acceptance of the office at a recent meeting with the President, Mr Joseph Law, in the Judge’s Chambers. He said he was delighted to be appointed as Patron and understood the significance of the link between Justices of the Peace and Commissioners for Declarations and the Judicial system in our State. The Board of Directors had discussed the position of Patron at the first two meetings after the recent QJA election noting that available records did not disclose if or when the Association had a previous Patron in its 86 years of existence.
The Board decided to approach Justice de Jersey because of the links between the traditional role of the Office of Justice of the Peace and the administration of Justice. Justice de Jersey was appointed as Chief Justice 5 years ago at the age of 49 years. He has pursued an active role as Chief Justice regularly sitting in Court as a trial judge and as an Appeals Court Justice. In welcoming the acceptance of the Office of Patron, the President noted the Chief Justice’s reputation for fair-mindedness and forward thinking as attributes for members to aspire to. “He will make a good role model for members”, Mr. Law said.
Serving JP’s and C.decs Throughout Queensland
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Our Patron The Hon Paul de Jersey, AC, Chief Justice of Queensland
Board of Directors PRESIDENT & CHAIRMAN OF THE BOARD Telephone: (07) 3283 6800 Facsimile: (07) 3283 6800 Mobile: 0411 707 597
Mr Joseph Law JP (Qual) 31 Kroll Street, Kippa Ring Q 4021
VICE PRESIDENTS Mr Doug Hull JP (Qual) P.O. Box 5289, Torquay Q 4655
Telephone: (07) 4124 4214 Facsimile: (07) 4124 7939 e-mail: dougglen@bigpond.com.au
Mrs Bernice Lippiatt JP (Qual) 3987 Mt Lindesay Highway, Park Ridge Q 4215
Telephone: (07) 3802 2557 Facsimile: (07) 3802 2559 Mobile: 0411 663 757 e-mail: darkmoon121@ozemail.com.au
Mr Bob Pilkington JP (Qual) 32 Blackstone Road, Newtown Q 4305
Telephone: (07) 3812 1865 Facsimile: (07) 3424 7983 Mobile: 0411 663 757
DIRECTORS Mr Garry Franke JP (Qual) 8 Patrol Street, Jamboree Heights Q 4074
Telephone: (07) 3376 3375 Facsimile: (07) 3376 3375 Mobile: 0418 740 694
Ms Jan Stafford JP (Qual) PO Box 1006, Hervey Bay Q 4655
Mobile: 0412 782 743 Facsimile: (07) 4124 2068 e-mail: qjahb@hotmail.com
Mr Laurie Thompson JP (Qual) PO Box 121, Waterford Q 4133
Telephone: (07) 3802 2557 Facsimile: (07) 3802 2559 Mobile: 0413 715 162 e-mail: darkmoon121@ozemail.com.au
Dr Anthony Watson-Brown JP (Qual) PO Box 1766, Broadbeach Q 4218
Telephone: (07) 5538 5605 Facsimile: (07) 5538 5605 Mobile: 0421 188 309 e-mail: awbrown75@optusnet.com.au
Mr. Raymond Young OAM, C.dec 102 Glenmore Road, Rockhampton Q 4701
STATE OFFICE
Telephone: (07) 4927 4155 Mobile: 0405 624 648
REGISTRAR
751 Stanley Street, South Brisbane. PO Box 8419 Woollongabba Q 4102
Mr Martin A Richardson JP (Qual) 30 Commorant Crescent, Peregian Beach Q 4573
Telephone: (07) 3392 2455 Facsimile: (07) 3392 2955 www.qja.com.au
Telephone: (07) 5448 3460 Facsimile: (07) 5448 3290 Mobile: 0438 250 639 e-mail: pickwick@lagunabay.net.au
Free call: 1800 061 423 e-mail: theqja@powerup.com.au
OFFICE ADMINISTRATOR Mrs Yvonne Walker 2
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Telephone: (07) 3392 2455
Volume 1
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Autumn 2004
A Letter from the President Dear Members Greetings to all of you within our great State of Queensland in the Year of the Monkey (no monkey business please). I believe the Year of the Monkey will bring prosperity and goodwill for our august Association. Since I have taken over as your President for the next 2 years i.e. 2004 & 2005, I believe the Association is progressing nicely. Thanks to all of you, being ordinary members, branch executives, and of course, the Board of QJA Directors, Registrar and staff. I have great pleasure in welcoming our new Patron, Chief Justice Paul de Jersey. His Honour is well known for his fair-mindedness and forward thinking, which sets a fine role model for us to aspire to follow as Justices of the Peace and Commissioners for Declarations. There is a revitalisation of our Association happening. In January we adopted a new name and a new constitution. I was present to see new Branches formed in Rockhampton and Capalaba. Discussions are underway in other regions and I believe we will see at least six new Branches by the end of this year. These new Branches are designed to assist you, the existing Members, in the areas where you operate in your office of Justice of the Peace or Commissioner for Declarations. So if a new branch opens near you, please feel free to join and participate more fully in QJA. If there is no Branch in your
area, our team will be more than willing to assist in getting one up and running. I have had the pleasure of meeting a number of you at Branch meetings. In December I went to the Gold Coast “End of Year” social function and attended the March Ipswich Branch meeting. Some of the changes are fairly subtle. The Journal is now called what we have referred to it as for years – “The QJA Journal”, the “Council” is now a “Board of Directors” and the former “Divisions” are now called “Branches” of QJA. The Board of Directors is considering other programmes to expand our revitalisation of the Association. I expect everyone in the Association to pull his or her own weight as far as the well being of the Association is concerned. Unity is strength. Positive criticism is most welcome. Our ears are open to hear from you as Members. Fairness, integrity and honesty should be the norm in this great Association of ours. As I did state at the AGM of December 2003, this new QJA will be the best ever in existence for many years to come. Naturally, it is my job to ensure this prediction comes true, with the help of you, the members, great and small. Good luck, happy hunting and God be with you all. Joseph Law PRESIDENT
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From the Board The new Board of Directors has welcomed the initiatives of the incoming President. The expansion of Branches in the regions complements the opening of signing centres and the delivery of better services to both Members and the public. The State Office of QJA sets policies and acts as an umbrella for its constituent Branches and Members. For example, QJA takes out insurance to cover official QJA sanctioned events. When we run a State Conference, Members are covered for insurance purposes, as that exercise is one of the few direct functions run by the Board for QJA. Most of the functions of QJA, however, are delegated to Branches. A relevant example is the signing centre function. The Branch organises the signing centres as a delegated function of the QJA. It has autonomy in the running, manning and general control of the signing centres under its administration. We need the Branches to run and control the signing centres as the State Office does not have the capacity or manpower to become involved in the day to day running of these Centres. Similarly we delegate to the Branches much of the training, including, in particular, training in the geographical area covered by the Branch.
The Board appreciates the generous amount of time given by Members at signing centres and supports them in the activity by providing the necessary Public Liability Insurance cover, but the Board requires the participants at the signing centres to be members of the local Branch which supervises the relevant signing centre. Recently the Board (which has replaced the Council under new Constitutional changes) embarked on a plan to open Branches in districts that do not have an existing Branch. The Board’s rationale is that the Members should belong to Branches in which they can build relevant networks, keep up to date with matters relating to JPs generally and in particular within the area where the Members operate. The Board encourages Members to participate as fully as possible in the Branch activities as this will be the most beneficial way in which Members can participate in QJA.
From the Registrar It is with considerable pleasure that I have this opportunity to send all of the Associations valued Members my thanks of appreciation for your support. I see that a significant number of Members who were considering their relationship with QJA have decided to renew their membership. In many instances this was done in light of the changes the new administration has already brought about. I am confident that over the coming months you will notice the changes the new administration is implementing. The first change is that of the name of our Association. The name change was adopted by Members at the Extraordinary General Meeting on 28 February 2004. The new name is the name used at incorporation in 1948 and is the name we all use. The new constitution was accepted at the meeting and brings the articles into line with present practice. In the next couple of months we will have new rules and regulations for the Branches located throughout our vast State.A strong
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relationship has been developed with the Justice Department and I would like to take this opportunity to thank the Registrar of Justices of the Peace for his help and friendship and the many new activities planned by the Justice Department that will involve our Association. In the few months sitting in the Registrar’s chair I have had the opportunity to speak to many of you on the telephone as well as personal contact. Over the next twelve months I hope to meet as many of you as possible. Our office staff has continued to operate extremely efficiently and have made my completing task possible. Thank you. In conclusion, congratulations to the President and the new Board of Directors for the friendship and dedication to the Association being shown. Martin A Richardson REGISTRAR
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Welcome to New Members The following have joined the Association since September 2003: S M Liddell Eva Huang John Lim S J Ryan M T de Clara N M Guthrig D B Ferguson R W Warren M A Lawson D A Mitchell J A Heider D Jeffries C A Kimber M Neville T T Kung S White H M Jamal L Marshall C Mills Ward A M Cassar J H Fielding M G Griffin K Tudhope S Gaunder CTA Durighello C Harper N MacKintosh D Patrick Y Korving C A Silson M Flanagan G Edwards G B Royle
E P Chugg R M Lawrence J K Cooper JRJ Higgins C R Smith J T Robinson R Battle H R Woods A C Micallef M J Scott Dr N Gurung W A Dawson M Cantwell S Kirlwood H McNicol P Sanson S Williamson C F Budge L Raines A Duley A D Botterill R P Taylor M J Keane J Bazan K K Cairns F L Collins J Radke A Rehburg J C Horswell M A McLean K Splarn G A Donoghue W J List
L Williams M C Ramke F Cruz W Bailey R Wintloff N Liddle B J Wade S Kane A Ahern C Lawler A Parker L Gerns R Lonergan L Miller N Duncan B Donovan R Smith J Anfruns R Tsakisiris F Chan J S McQueen C Beutel B A Colley S Powell A Goodair M Rasmussan H Pratrap Cheng Chi Lu D Elliott P J Ward S I Davidson M Feiner G Wetkin
G Lynn A Callaghan P Chun L Stewart J Humphries L Bradley B Peirce A Pratap D McDonald S Patterson S Conroy B Yinfoo M J Schmidt K C Blanch P S Stewart H Elesics D Murphy R Bowman B Bach I W Little M Beardmore S Barrett W L Lamb K Baker B Dennis S Pavlich A Johnston E Kogler S Baker H Curtis J R Clark A C Brett C A King
S P Rideout D Hanegraaf G Cheetham I Hughes D Whittaker V Batten T Stevens W Gavin C Titheradge M Walton J Jeffries L McKechinie V Guillemot Hawkins J Stead D Smith C Redgate C P Brooke A Kennedy D Lovell S Rushby C Jackson M Harding D McLeod D Kuhlar V Jones K Adams S Warner C Lawson D. Mills J. Quinn A. Aitken C. Wilson M. Field
N. Speltoni L. Anderson R. Krishna A. Sonnet D. Lutvey J. Schultz A. Wallis C. Carr J. Graham G. Dodds J. Wilson Y. Treasure G. Barnet J. Pattinson M. Osborne J. Clark J. Lynch J. Turk D. Ivers J. Whitmore J. Trundell
Vale We have received with sadness notice of the passing of the following Members: H Rudge D Hayden
N A Butler R T Newman
R D Logan K Hermann
L Hardy V Morrison
M Beezely D McDougal
Advertise here! The QJA Journal is currently distributed to over 4000 members and industry contacts covering a wide range of activities and professions. If you would like to advertise your business in the journal and benefit from this direct exposure then please fill out the separate advertising enquiry form and return to: Cameron Meiklejohn at Major League Corporate Marketing on Fax 07 3217 9772 or by sending your details to Cameron@majorleague.com.au Serving JP’s and C.decs Throughout Queensland
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News In Brief JP Manual Now Has Index The Justice of the Peace (Qualified) Manual is now being printed with an Index. The QJA, through its trainers, had made representations to the Department of Justice and Attorney-General for the Manual to have an Index. Thanks to the good work of Nathan Williams, a JP (Qual) student from the Gold Coast, a draft index was submitted for the Department’s consideration and it has now been adapted for the Manual. If your Manual is in good order and not needing replacement, you can download the Index at the website www.justice.qld.gov.au and insert it in the blank pages at the end of your Manual.
Overseas Documents Notaries Public or Consular Officials usually witness documents for use overseas. A Justice of the Peace and Commissioner for Declarations are generally not authorised to witness the execution of foreign documents. However the occasion arises when an overseas authority will accept the signature of a JP or C.dec. A common example is the “life” declaration required by pension authorities in some countries to verify that a person receiving a pension is still alive. The client will come to the JP or C.dec with the appropriate form. On the JP or C.dec satisfying themself that the authority will accept the signature of a JP or C.dec, the document can be witnessed. Another category of authentication for foreign documents can be found in the Department of Foreign Affairs and Trade. Foreign Governments can request bearers of documents executed in Australia for use overseas to have them authenticated (legalised) by the Department or (in some cases) by embassies or missions overseas. The authentication verifies the signature and the stamp the document bears. If this process is required, the authentication can be obtained from the Department of Foreign Affairs and Trade, Queensland State Office, Level 4, 295 Ann Street, Brisbane between 8:30 am and 4:00 pm Monday to Friday. There is a fee which is currently $20.00 a document. As a witness to these documents you may be required to supply the Department with a specimen copy of your signature and stamp details.
Queensland, the JPs were interrupted. The couple had arranged to meet their marriage celebrant “at the JP’s Booth at Bay Central”. The JPs were particularly proud as their booth is situated next to two local icons, the Telstra Shop and Gloria Jeans Coffee!
Life Membership The Board of Directors voted to endorse life membership for John R. Hockings. Mr Hockings has been a QJA member for over 40 years and recently celebrated his 82nd birthday. Congratulations!
Honorary Membership Mrs Joan Corron was conferred with an Honorary Membership. Mrs Corron resigned her commission for personal reasons after carrying out her duties as a faithful member of the QJA for over 25 years.
Justice of the Peace Branch
Hervey Bay Signing Booth becomes a ‘landmark’
We have been extremely busy at the Justices of the Peace Branch following the distribution of the ninth edition of the “Justice Papers”. The massive task of sending over 70,000 copies combined with the announcement of the State Election forced us to delay the mail out by several weeks. With that said, the positive response to the “Justice Paper” has been outstanding. Many JPs and C.decs contacted the Branch to acknowledge the contents and quality of the document. Hundreds of other JPs and C.decs have contacted us to update change of address details, names and to list on the website. The annual publication provides the Branch with the opportunity to cleanup where possible the details of the Register of Justices of the Peace and Commissioners for Declarations. Without a doubt the past eighteen months has seen many changes to our business unit and operations. The area of training, particularly in remote Aboriginal and Torres Strait Islander communities continues to go well and is expanding. Seminars are currently being planned for regional areas at the invitation of State members and more information is being disseminated over the website. The Department of Justice and Attorney-General’s website www.justice.qld.gov.au has now over 6000 names and contact details of Justices of the Peace and Commissioners for declarations throughout the state. I would encourage any Justice of the Peace or Commissioner for Declarations who has not done so already to contact the Justices of the Peace Branch and request that their details be listed on the website. The website greatly assists the general community in locating a Justice or Commissioner in their local area. If you have changed address recently, please contact the Justices of the Peace Branch, so that we can record your new address and contact details on the register. I look forward to developing a good working relationship with the QJA over the next several years and improving the excellent service that we together currently provide to the public in our roles as a Commissioner for Declarations or Justice of the Peace.
Recently the JPs on duty at the Bay Central Signing Booth in Hervey Bay were approached by a couple who asked if the JPs had seen “their marriage celebrant?” While about to explain that JPs do not perform marriages in
Damien Mealey Registrar
Judge Robert Hall retires from the Bench Judge Hall who opened QJA House retired from the District Court Bench on 6 February 2004 after an illustrious 21 years of Judicial service. The Judge has been a strong supporter of Justices and Commissioners in Queensland, particularly in recent years, having spoken at the QJA 2003 Annual Conference and attending QJA Branch meetings. Judge Hall has given us his assurance that he will continue to support QJA and has offered to be available for us in the future.
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Volume 1
Support for Court JP Service The Registrar of the Southport Court, Mr Bruce McLeod, has hailed the Courthouse signing centre trial as a resounding success. In a recent briefing to the Justices and Commissioners who participated in the Southport Court trial, Mr. McLeod expressed his thanks for the relief that the services gave to the Registry staff and reported the three day a week service had received positive response from the public. From 1 March 2004 the Southport Courthouse JP signing service is now available five days a week between 9:00 am to 4:00pm. The QJA fully supported the implementation of the trial. A significant proportion of the JPs operating at the courthouses around Queensland are QJA Members. The QJA congratulates those Members and other JPs and C.decs who have participated in the trials and encourages those Members who wish to provide their services in this way to contact their local court Registrar.
Membership Fees not Tax Deduction As a result of recent enquiries the Board asked a Registered Tax Agent whether the annual membership fees could be claimed as a tax deduction. The reply is that as JPs and C.decs do not derive an income from their duties, the annual membership fee could not be claimed as a legitimate expense incurred in earning income. Further, the fees expended in the JP (Qual) course and other JP training were only able to be claimed as part of further education expenses when the total of these further education expenses exceeded the initial $250.00 that the Tax Office deducted from the further educational expenses claim.
Editorial Members will have noticed a number of changes in QJA over the past few months. It is fitting to comment on these changes to see how we as an organisation have gone back to our roots in an attempt to take the Association forward towards our centenary year in 2018. First, the name. The Association was formed as “Queensland Justices Association” in 1918. In 1948 it incorporated under the Companies Act as a company limited by guarantee, adding the “Inc.” tag. In the mid 1990s there was talk of the role of Justices being expanded to wider areas and the Association in its forward thinking way changed its name to include the perceived wider role in which Justices might be used in the future. The words “& Community Legal Officers” were added. We know that while the specific roles have been better defined
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with the clear distinction of Commissioners for Declarations duties, JP (Qualified) duties and JP (Magistrates Court) duties being spelled out in the legislation, the overall role is much the same as it always has been. The new “Council”, after the 2003 elections, looked at a package of issues and decided to recommend to Members that we revert to our traditional name. This was not an entirely new initiative as it had been mooted in an edition of the Journal in 2002. Members voted to endorse the name change at an EGM held in February 2004. The Journal. The QJA Journal has been around since the early 1950s at least. It was originally just called “JP”. Later it became “ Justice and the JP” officially but has always been referred to as the QJA Journal. It is the Association’s Journal and, as a sign of the reversion to the traditional values of our roots, the Board of Directors endorsed the change of name and the relaunch of the “QJA Journal”. The Constitution. The Association’s management has recognised difficulties with the Articles of Association over a period of time. In the past 3 years extensive work had been done to rewrite the Constitution. After the AGM in 2003, the Council asked one of its members, a parliamentary counsel by training, to rewrite the Constitution. The basic background work had been done. The instructions were clear – bring QJA into the 21st century. A draft new Constitution was put to Members in general meeting in February. The clear style of writing was well received by members and after a discussion of the document it was passed. The old Council has given way to a new Board of Directors. The approach is more business-like. The Board has given an undertaking to review the Constitution over the next year and to report to Members on any issues that might arise in managing the QJA under the newly written document. The Patron. An initiative of the Board has been to appoint a Patron for the Association. A review of our records does not disclose a Patron ever having been appointed. The matter was not taken lightly and was discussed at two Board meetings before an approach was made to the Chief Justice, the Honourable Paul de Jersey AC. His Honour has confirmed his acceptance of the role of Patron of the Association. The President has recorded his views in his Letter in this edition of the QJA Journal. We have a good role model to whom we may all aspire in carrying out our duties as JPs and C.decs. The Future. The new President and the Board of Directors believe they have laid a firm foundation on which to build a better Association. We have established good working relationships with the Department, the Judiciary and the Minister. Our role is to represent JPs and C.decs in the community in which we work. Our view is that a Branch network needs to be established as a matter of priority. This network is the best way to provide our services to you as JPs and C.decs. The role of each Branch will vary as local needs require, but the fundamentals will be to provide support for Members
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Police and the Emergency Situation Declaration D. J. L. Orchard This article, whilst not claimed to be definitive ‘law’, offers Queensland Justices of the Peace information on an area of law and law enforcement not usually encountered by them. It is a legal process that can be invoked by police in dramatic circumstances and which has the capacity to impinge upon the freedom of members of the public. The law to which I refer is the Public Safety Preservation Act of 1986. Justices of the Peace are aware that usually a warrant, signed by one of their numbers, is required for the deprivation of liberty for members of the public. However, in emergency situations as outlined below the J.P. is not now called upon and a commissioned state police officer becomes the arbitrator and signatory for the document which becomes a controlling power. This is commonly referred to as a Declaration of Emergency Situation. A short account of the recent history involving emergency situations is as follows. Within living memory, an emergency declaration was invoked during the 1971 Springbok Football tour of Queensland. This declaration was empowered by a little known and used area of the State Transport Act 1938. Since then that area of law has been replaced with a number of acts of parliament and included in these are the Public Safety Preservation Act and the Disaster Management Act 2003, the latter which has replaced the State Counter-Disaster Organization Act 1975 – 1978. The role of the Disaster Management Act is to deal with that could be simply referred to as ‘natural disasters’ and usually encompasses the State Emergency Service and related organizations and services. The Public Safety Preservation Act however is the law that is invoked by police for dangerous situations which mostly involve persons as the perpetrators such as situations which involve firearms and other weapons and located bombs however they can include ‘man made incidents’ such as explosions, fires, oil or chemical spills, escaping gas or radioactive materials etc., as well as major accidents which involve aircrafts, trains and vessels. Simply put, and to reproduce the introductory wording of the Act, it is to provide protection for members of the public in situations of emergency that create or my create danger of death, injury, distress to any persons, loss of or damage to any property, pollution of the environment and for related purposes. The purpose of this article is to provide an insight on the law which deals with the restrictions placed upon the members of the public when police have to deal with dangerous situations. As already stated, the statute which empowers police in these circumstances is the Public Safety Preservation Act 1986. As can be seen, an emergency situation can be simply stated as any dangerous situation where there is a threat to life and property. These situations would include such incidents as armed sieges, hostage taking, crash sites where fuel carriers are involved, ruptured gas lines, collapsed power pylons and so on. Equally apparent is that police and other emergency services agencies would not have the luxury of time to enable consultation with a Justice of the Peace for some form of written authority to be invoked. A logical question to be asked is who can provide the emergency declaration? Again we turn to the Act where in Section 5, it states that if at any time a commissioned officer 8
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(defined as an Inspector or above and includes Acting Inspectors) is satisfied on reasonable grounds that an emergency situation has arisen or is likely to arise the commissioned officer may declare that an emergency situation exists in respect of any area specified by the commissioned officer. As can be seen in the last line of the preceding paragraph, the responsible police officer is obliged and empowered to specify the area where the emergency situation prevails. Another question which could be asked in such situations as referred to here is what powers are allocated to police? Section 8 of the Act supplies particulars on what can be done by police. For want of time and space these powers will be summarized in a very shortened form. The Act empowers police in emergency situations to direct the owner or person in control of a resource to surrender it and place it under police control, direct persons capable of operating the resource to operate it as directed by police, direct the evacuation or exclusion of any person from any premises, close roads including private roads etc. to traffic, enter any premises, search using force where necessary any premises, remove any animal or thing and direct any person to assist the police as required. Where police encounter resistance they have the power to arrest without warrant persons believed on reasonable grounds to have committed offences against the Act. These offences include assault, obstruction, the incitement of others to commit such offences and failure by members of the public to follow the requirements and directions issued by police officers. The last logical question which is likely to be asked where an emergency situation has been declared is what accountability has been imposed on the commissioned police officer who has made the declaration of an emergency situation? The answer is one of procedural activity as the commissioned police officer is obliged to show that on reasonable grounds an emergency situation had arisen or was likely to have arisen at the time he or she made the declaration. He or she is also obliged, as soon as practicable after the making of the declaration, to issue a certificate which sets out the nature of the emergency along with the time and date and description of the area involved. This certificate is held by the Police Commissioner and is able to be reviewed by independent supervisory agencies. The Act, which consists of only 18 sections, also covers protection of employment rights, compensation for personal injury and compensation for use of or damage to property. As already stated, the purpose of the article has been to provide a general knowledge of the Public Safety Preservation Act and an outline of the existence of certain arbitrary powers involving emergency circumstances where the authority now almost exclusively devolve upon police personnel. The author, Dudley Orchard, is a Justice of the Peace (Qualified), a retired police officer and a Member of the Australian Institute of Emergency Services. Assistance was provided by Vern. Sommerfeld, a Barrister-atLaw, who is attached to the Queensland Police Academy.
Volume 1
Q. What do I do if a client offers me money for doing my job as a JP? A. The law is clear. A JP or C.dec is not allowed to accept payment or a gift for performing their duty as a JP or C.dec. If a client offers money or a gift for services, the JP or C.dec can suggest to the client that they might like to make a donation to a registered charity (not the Association) of the client’s choice. It should be explained to the client that a JP or C.dec cannot accept gifts or money for work done. Recently it was suggested that donations be accepted for the Association at signing centres. This is not acceptable. A donation given to the Association by a client is, on the face of it, given for work done by a JP or C.dec and so it is unlawful. Q. What do I do if I receive an overseas document to witness? A. The Manual states that you have no authority to sign a document intended for use outside Australia. International documents must be witnessed by Notaries Public, Consular or Embassy Officials unless the document specifies otherwise. The more common documents we are able to witness include the “declaration that a person is alive” used for verifying pensioners from some countries are still alive and entitled to continue to receive their pension. Documents to be received into Courts or dealing with land or other significant rights will almost certainly need to be witnessed by a Notary Public. You can find a list of Notaries in the Yellow Pages under “Notaries - Public” or check with the Department of Justice on 1300 301 147 / 3239 6098 or our freecall number 1800 061 423. Q. Is there anything in particular I should consider in issuing a Peace and Good Behaviour summons? A. Peace and Good Behaviour complaints need special attention. Unlike police complaints, when a person seeks to issue a Peace and Good Behaviour summons, the defendant is not being accused of a “criminal offence”. The standard of proof is different and the defendant is to some extent exposed by that standard not being “beyond a reasonable doubt”. The requirement for a defendant is to be of good behaviour for a period of time, if an order is made. No conviction is recorded. The matter, is not a simple “civil” matter, however. The Magistrate (and in turn the Justice receiving the complaint and issuing the summons) must take into account the seriousness of the allegation made against the person against whom the complaint is laid
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Members Questions & Answers The following are questions raised by Members.
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What is needed to base the complaint is that the complainant must have a fear of the person complained against, and the fear relates to possible future assault or property damage by the defendant or persons under the direction of the defendant. The leading case on the Peace and Good Behaviour summons is Laidlaw v Hulett; ex parte Hulett [1996] QCA 469. Q. I am visiting relatives and friends interstate. Can I perform my duties while away from home? A. The general rule is that you may not witness interstate documents while you are outside Queensland. Certain documents, however, may be witnessed under legislation in some States while you are out of Queensland. Before agreeing to witness an interstate document while out of Queensland, you should seek advice from the agency responsible for the document in that State. If the document is for use in Queensland or is a Commonwealth document you may witness these anywhere in Australia or overseas (with one exception of consent to marriage – this must be witnessed outside Australia by a Consular or Embassy official) Q. I noticed the new Land Titles Office forms seem to have changed. Are there any implications for JPs when witnessing these documents? A. In November 2003 new forms came into operation under the Land Titles Act. They are substantially the same as the previous versions but have separate signing (or execution) clauses for each party. This leaves less space to complete the “Witness” details, which must include your signature, full name (no initials please) and qualification (i.e., JP (Qual) or C.dec). There is literally no room to place your seal. If you are a C.dec, your seal, being black ink, will almost certainly obliterate some of the information required on the form. A solution is to omit your seal (some Banks actually ask for this when sending out their mortgage forms) and to insert your pin number after your qualification. Please forward any questions you have regarding JP or C.dec duties to the Editor,The QJA Journal, PO Box 1766, Broadbeach 4218 or e-mail to awbrown75@optusnet.com.au and we will endeavour to include the answers in the next issue.
The reference in the Manual to referring the matter back to the Police must be taken seriously. If a criminal act has taken place, the police should be encouraged to take proceedings. The Peace and Good Behaviour procedure is not a substitute for police action.
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Training The next JP (Qual) Examination is Saturday 15 May 2004 at 9:00 am. JP (Qualified) Training Courses are being provided in Brisbane and on the Gold Coast. BRISBANE – QJA House, 751 Stanley Street, South Brisbane. Please contact State Office on (07) 3392 2455 for details of the courses being run. GOLD COAST – Please contact the Training Officer on 5538 5605 or 0421 188 309 Course times and dates are 17, 24 April, 1, 8 May from 9:00 am to 4:00pm.
The July JP (Qual) Examination is Thursday 22 July 2004 at 6:00 pm. JP (Qualified) Training Courses are being provided in Brisbane and on the Gold Coast, Hervey Bay and Maryborough BRISBANE – QJA House, 751 Stanley Street, South Brisbane. Please contact State Office on (07) 3392 2455 for details of the courses being run. GOLD COAST – Please contact the Training Officer on 5538 5605 or 0421 188 309 HERVEY BAY – JP(Qual) & Cdec training courses will be held at the Maryborough Sailing Club, the Esplanade, Scarness commencing 26 May for six weeks. Please contact the Hervey Bay Branch through Jan Stafford on 0412 782 743 or Facsimile (07) 4124 2097 or at qjahb@hotmail.com MARYBOROUGH – JP(Qual) & Cdec training courses will be held over three Saturdays starting 19 June, 3 & 10 July from 9 am to 4 pm. Please contact the Hervey Bay Branch through Jan Stafford on 0412 782 743 or Facsimile (07) 4124 2097 or at qjahb@hotmail.com HERVEY BAY BRANCH is to hold a Professional Development evening on Wednesday 21 April commencing 7:30 pm at the Maryborough Sailing Club, the Esplanade, Scarness. The topic for the night is “Juvenile Interviews”. IPSWICH BRANCH is planning a one-day refresher course for JPs and C.decs for mid-year. For details please contact David Kinnell on (07) 3281 4986.
CERTIFICATE IV IN ASSESSMENT AND WORKPLACE TRAINING A course in Certificate IV in Assessment and Workplace Training is to be held at Southport, Gold Coast, on Fridays 7 and 14 May and Saturdays 8 and 15 May. The Friday sessions are from 6:00pm to 9:00 pm and Saturday runs from 9:00am to 4:00 pm. Cost of the course is $600.00 and the course is fully accredited. A current Certificate IV in this topic is one of the pre-requisites for being a QJA trainer. Please contact Doug Hull at PO Box 5289 Torquay 4655, Home 4124 4214 Facsimile 4124 7939 E-mail dougglen@bigpond.com.au 10
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QJA Branch Contacts CAPALABA - ROGER KELLY PO Box 1147 Capalaba 4157 Business: (07) 3245 1130 Home: (07) 3245 4447 Mob. 0403 034 408 Facsimile: (07) 3245 1130 E-mail: mail@activeaudio.com.au GOLD COAST - VALERIE AUMANN 19 Keel Court Currumbin Waters 4223 Home: (07) 5598 1543 Facsimile: (07) 5598 4460 HERVEY BAY - JAN STAFFORD PO Box 1006 Hervey Bay 4655 Mobile: 0412 782 743 Facsimile: (07) 4124 2097 E-mail: qjahb@hotmail.com IPSWICH - DAVID KINNELL 41 Herbert Street Sadliers Crossing 4305 Home: (07) 3281 4986 ROCKHAMPTON - RAY YOUNG 102 Glenmore Road Rockhampton 4701 Home: (07) 4927 4155 Mobile: 0405 624 648 SEQ – LOGAN - GRAHAM BIRD, 25-31 New Beith Road Greenbank 4124 Home: (07) 3200 0446 Facsimile: (07) 3200 0399 E-mail: wisebird@tpg.com.au We encourage you to contact the Branch nearest to you.
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Letters Following is a letter to the QJA Registrar Curramundi 30-1-04 Dear Mr Richardson I am very pleased that your ever welcome letter has arrived in good order and condition and many thanks for the same. It was a delight to receive such a letter and the courtesy shown by you and from my observation I must say the Association has improved greatly and your courtesy was a delight to me.
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Merchandising The QJA is sourcing new merchandise for Members. The Board is considering a number of suppliers who have indicated very competitive rates. Included in the range tentatively proposed are membership badges, ID cards, pens, mugs, car & letterbox stickers, wall plaques and cuff links. We are considering the production of JP/C.dec Log Books for recording your duties.
I know that over the years QJA has had to handle a lot of problems and I guess with your direction these problems must have been well and truly sorted out.
Watch this space for further details.
Now I wish to thank you from the bottom of my heart and now wish you and yours the very best of health and I am sure that your work will outshine all others.
In the meantime, Members are still able to order certification self inking and rubber stamps from the QJA State Office.
Thanking you I am W.J. (Bill) Ashe J.P.
Publications
The following letter was received from a member in Jimboomba
The Duties of Justices of the Peace (Qualified) Manual $13.20 incl GST
Dear Sir/Madam Re: Law Reform Commission Review Please allow me space in your Journal to enquire if your Association has been given any further information on the above Review. For those Justices of the Peace who have chosen not to upgrade their status, could the Department of Justice be approached and perhaps encourage all Justices of the Peace to be defined as either Commissioner for Declaration or Justice of the Peace (Qualified), as there is still confusion ‘out there’ with some Justices still only signing “Justice of the Peace” with no definitive information forthcoming after the signature. Perhaps if this action is taken now, it will save a lot of people a lot of time and effort when the Commission does in fact conduct its Review. Yours faithfully March 2, 2004
The Administrative Duties of Commissioners for Declarations $6.60 incl GST
Change of Address Please contact the Registrar, Mr Martin Richardson phone 07 3392 2455 or email: theqja@powerup.com.au if you have any change of address/telephone/email details.
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Idiosyncrasies in the Law Dr Anthony Watson-Brown This short column is designed to look at several separate legal issues that are relevant in the law today. Why do I need a lawyer? The direction given in the Manual for Justices of the Peace not to offer legal advice is based on sound reasoning. Apart from the lack of qualification to advise, often circumstances affecting two different people seem the same but the legal outcome is very different. The law has its own peculiarities that are confusing, even at times to lawyers.
Do I have any rights? How often do you hear a lawyer/bank/ insurance company say “You didn’t read this did you?” They are, of course, pointing to some small print in the bottom of a contract or on the back of a receipt in which your rights are taken away from you. In many cases it is not clear whether you have or don’t have rights. An example is the dry-cleaning docket. Usually a dry cleaner will attempt to limit the damages payable if they destroy your property. A normal figure is 7 times the amount of the fees paid to have the item dry cleaned. So, if the fee is $10, the limit to the damages you can recover is $70. If you put your expensive hand knitted cashmere sweater (value $200.00) into the dry cleaners and in the dry cleaning process they destroy it, are you able to claim more than the amount printed in small print on the back of the receipt or are you stuck with the “7 times the fee” amount or $70? On the other hand, if you put your expensive, hand embroidered, linen table cloth (value $600.00) into the dry cleaners for dry cleaning for a fee of $20 and the factory washes the tablecloth in water rather than dry cleaning it, are you caught by the limit of $140? For the cashmere sweater you are limited to the condition on the ticket. For the linen table cloth the law is different and you can recover the replacement cost of the tablecloth. The dry cleaner will, of course, try to invoke the limit in the docket but, despite the document being the same, the application of the conditions in the docket varies. What has happened in technical terms in the tablecloth case is that a fundamental breach of the contract has taken place and the drycleaner cannot rely on an exclusion clause in these circumstances. Why the difference? That is one of the idiosyncrasies of the law that makes having a lawyer a necessity.
How “common” is the law these days? Most lay people who have come into contact with the law have heard of the “common law” system that we use in Australia. This system has ensured a stable legal environment as the courts rely on a system of precedents dating back centuries. For example, a fundamental rule in interpreting law is known as the rule in Haydon’s Case that is several centuries old. Many of the precedents I learnt in 12
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the 1960s when I first studied law here in Queensland were from the 19th century. The law used to adapt to changes in society at a measured pace. In Australia, however, the case law has really developed in the past 15 years. Students in law schools are now referred to very recent cases. If you go to other common law countries, (including some in which I teach) the cases referred to also include the gems of last century and even earlier. Our appeal courts, however, have rewritten the law to such an extent that it is almost a case of judicial legislation. The Queensland Courts tend to be reasonably conservative in this regard and follow the tradition of the common law but our highest appeal court, the High Court, has not always been so minded. Some of the decisions have been controversial. The Mabo case is one where centuries of established principles that had been applied by the government of the day of all political persuasions were “disapplied” by the High Court. Regardless of how we feel about particular topics it causes great upheaval when an appeal court overturns the conventional application of the law. Mabo led to a total rewriting of our land law with implications that have still not been resolved, particularly in the areas of mining and pastoral legal rights.
Why are insurance costs rising? In looking at the effect of this legal change without legislation the current question of “Why are insurance costs rising?” becomes relevant. This problem of rising insurance costs has several heads like some pagan god of old. An example of one area where the courts’ decisions had an impact is found in recent decisions on the Local Council’s liability for failing to maintain property. The modern decisions turned the liability and insurance obligations of the Councils on their heads. The old law was that if a Council failed to maintain a road or another property that it controlled, it was not liable if someone was injured because of the defect in the road or property. The appeal decisions of the 1990s found that the Councils were liable if they fail to maintain property and should have been aware of the potential danger. So, if I tripped over a broken footpath and hurt myself, I could sue the Council. The result was an upsurge in claims and, consequently, insurance premiums. This also meant higher Council rates. At the same time, centuries of legal precedents were swept aside by the appeal court when the decisions were made. Fortunately the State Government intervened and restored to a large extent the position of the Council’s liability to the position before this rash of court decisions. Another instance of change in the air relates to the liability of occupiers of premises. Generally, the public accepts
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Quotable Quotes signs put up on buildings and fences that if we enter the premises, we do so at our own risk. This is particularly relevant if the sign indicates hazardous circumstances exist in those premises. Indications show that some southern appeal courts are saying if we put up the sign, we know of the danger and if we know of the danger we are liable if a person enters and is injured because of the forewarned injury. Is this the law gone mad?
Million dollar payouts for injuries while playing sport or engaging in other risky pastimes. Is this right? Another aspect of the insurance cost blow out arises when people are injured in what seems to the average person as voluntary assumption of risk. It is difficult to see a person in a wheelchair and not have great sympathy. Is the answer money? If it is, then we must ask “How much?” and more particularly, “How much is fair to others who suffer a similar fate but cannot sue?”
Does the legal system adequately cater for serious traumatic injury? The facts seem to say “No.” Under our legal system, the victim of serious damage is forced first to find a culprit who is covered by insurance. The process that follows forces the victim to undergo further, sometimes even more traumatic, exposure to the rigorous testing the legal system imposes. Endless examinations by doctors who are not seeking a solution to the medical problem but assessing the loss suffered by the victim can have deep psychological impact on these people. If there is some doubt as to liability, who pays for these assessments? How do the victims live in the meantime? What does a multi-million dollar payout mean to someone who can never walk again. The payout does not punish the guilty party as it is met out of insurance funds. The payout punishes society generally and that includes you and me. Society overcame the problem of people being injured at work through a fair system of compensation to workers, regardless of the legal niceties of negligence. In some jurisdictions, the right to make a common law claim through the courts was removed. Perhaps it is time to step back from the scene and look again at how people should be compensated.
I feel like a fugitive from the law of averages. Bill Mauldin It may be true that the law cannot make a man love me but it can help him from lynching me, and I think that’s pretty important. Martin Luther King Justice is the constant and perpetual wish to render to everyone his dues. Justinian Institutes You make more friends by becoming interested in other people than by trying to interest other people in yourself. Dale Carnegie
Gold and Silver Members We are trying to locate Members who have long service as JPs. If you have 25 years or 50 years service as a Justice of the Peace, could you please contact the Editor, The QJA Journal, PO Box 1766, Broadbeach, 4218 or e-mail to awbrown75@optusnet.com.au
Your Journal We welcome the submission of news items and short articles for the QJA Journal. Articles relating to JP and C.dec functions and duties will be favourably received.
Dr Anthony Watson-Brown JP (Qual), the author, is a Lawyer with extensive experience in Queensland and other jurisdictions.
Matters of interest to Members generally arising in your Branch are particularly sought. Please forward to the Editor, The QJA Journal, PO Box 1766, Broadbeach, 4218 or e-mail to awbrown75@optusnet.com.au
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Branch Activities Rockhampton off to a Flying Start The President, Mr. Joseph Law and QJA Director, Dr. Anthony Watson-Brown flew to Rockhampton for the first meeting of the new Rockhampton Branch under the co-ordination of fellow QJA Director (and Rockhampton resident) Mr. Raymond Young, OAM. After a thorough briefing by Mr Young, the President was able to field questions from the potential members who attended Glenmore High School for the meeting which took place on 26 February 2004. The new Committee consisting of Ray Young, OAM, as Co-ordinator, Ian Brill as Secretary and Ian Power, OAM, as Treasurer was appointed. A full program of interesting and varied events was laid out by the new Co-ordinator covering the next 14 months of activities for the Branch. Co-operation with the Judiciary and Police as well as other agencies dealing with Justices of the Peace and Commissioners for Declarations was essential for the program and the new Committee indicated it has appropriate connections in this regard. Meetings of the new Branch will be held at Glenmore High School and Members residing in the Rockhampton area are asked to contact either Ray Young (07) 4927 4155 or Ian Brill (07) 4922 1060 for details.
Bayside Covered by new Capalaba Branch A new Branch established at Capalaba now covers the Bayside suburbs. Mr. Roger Kelly, a member from the Bayside suburbs, took up the gauntlet after the last State Conference and met with the management of Capalaba Central Shopping Centre to arrange the opening of both a new Branch and a Signing Centre. The Signing Centre is well located within the shopping complex with reasonable privacy for clients. “I was impressed with the idea of signing centres as a result of speaking with Members at the State Conference.” Mr Kelly said. At a meeting held in March the President, Mr. Joseph Law and QJA Director, Dr. Anthony Watson-Brown, outlined the functions of Branches under the new Constitution and the major issues to be aware of in establishing the new signing centre. 16 Justices of the Peace and Commissioners for Declarations attended the inaugural meeting. They were so keen to get everything up and running agreed to meet less than a week later to finalise plans for the Branch. Meetings for the new Branch are also held in the Capalaba Central Shopping Centre at the Community Room. Members in the Capalaba and Bayside suburbs are asked to contact Roger Kelly on (07) 3245 4447 to obtain more details on meeting times.
Gold Coast Ends 2003 on a High Note The Gold Coast Branch of QJA celebrated a successful year of operations with an End of Year get together held in the Community Room at Pacific Fair. Guest of Honour was the newly elected President, Mr. Joseph Law, who spoke briefly about the plans for the future. Mr. Law noted the work being done on the Gold Coast as well as in some other Branches in running signing centres, which he fully supported. The President also noted with interest the training being carried out for new JPs. While this activity was essential to keep the QJA profile out in the community, Mr. Law said that it was not primarily a membership gathering drive. “We need to provide services to get new Members and retain old faithful ones,” Mr Law said during the course of the evening’s festivities. “People will not join or stay with us unless we deliver, particularly in the updating of Members on recent developments and in the information area generally,” he commented. “Of course, having a good time at the appropriate time is also a good draw-card,” the President added while enjoying a social evening with about 30 members and friends
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Volume 1
Rocky Branch Executives: Ian Power, OAM – Treasurer, Kerry Ellis, Joe Law, Lyn Brill and Ray Young, OAM, Co-ordinator
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Terry Sulivan - MP, Laurie Thompson - QJA Director, Joeseph Law - QJA President and Hon Rod Welford - Attorney General & Minister for Justice.
Signing Centre opens at Chermside The opening ceremony of a new signing centre performed on Tuesday 23rd March 2004 by the AttorneyGeneral, the Hon. Rod Welford, included representatives of QJA. The President, Mr. Joseph Law and Finance Director, Mr. Laurie Thompson were invited guests at the Westfield Shopping Centre at Chermside in Brisbane’s northern suburbs. In the lead up to the opening Government officials made it clear to QJA that the Government wants QJA to play a key role in the development of signing centres in shopping centres.
Capalaba Inaugural Branch Meeting
QJA has responded with full support for a co-operative effort to provide these services throughout Queensland. The recent drive to develop regional branches of QJA is seen by the President and Board as an integral part of creating infrastructure needed to support JPs and C.decs working in these signing centres. Experience gained in existing Branches where signing centres are supported in Hervey Bay and the Gold Coast shows that JPs and C.decs working in shopping centres find the branch structure supportive, particularly in problem solving and supplementary training areas. The new Capalaba Branch Co-ordinator was already in negotiations with Westfield Carindale management when QJA was advised of the Westfield Chermside plans. Westfield Carindale signing centre will be up and running as a QJA signing centre shortly after this edition of the QJA Journal reaches Members.
Diane Knevitt receiving lucky door prize at Gold Coast End of Year get together from QJA President Mr. Joseph Law
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What QJA Means QJA exists to support members in carrying out their Office as Justices of the Peace and Commissioners for Declarations. Membership fees are our major source of income. Without membership fees we cannot provide the services you need to be competent and informed JPs and C.decs. QJA is established to:• Encourage high ethical standards of conduct of Members in performing their Office. • Promote and maintain the status of the Office of JP and C.dec. • Provide Members with advice on the duties, rights and obligations of the Office they hold. • Represent the interests of Members specifically and the Office generally to the Government and to the general community. • Provide education and training to advance the interests of Members and potential members. • Monitor relevant changes in legislation, assess the impact of these and advise Members accordingly. • Provide Members with a forum for the exchange of views and ideas. • Promote fellowship and goodwill between the Members. • Promote fellowship and goodwill between Members and Office holders who are not Members as well as Justices of the Peace from other jurisdictions. Membership costs about a dollar a week and as a member you have access to an organisation that promotes these ideals. You will receive four journals a year that cover current and topical matters relevant to JPs and C.decs. QJA provides at minimal cost members badges, car and letterbox stickers, ID cards, certification stamps and other materials to assist JPs and C.decs in carrying out their duties. We promote through our regional branches discussion of topics relevant to members. Our organisation meets at least once annually to further those discussions throughout the membership. Our training courses provide primarily for persons wishing to become JPs. We support local refresher courses and training information to members through our branches to keep members up to date. Over the next 2 years we aim to open a number of new Branches. Please let us know if you want to participate in this exercise. If you live in an area that has an existing branch you should consider using the facilities offered and extend your JP network. It is vital that you continue to support us so we can support you. If you have any suggestions, please take the time to write to the Registrar so the QJA can be responsive to the wishes of members.
The QJA Journal is compiled by an Editorial Board on behalf of the QJA. Editor Dr Anthony Watson-Brown
Sub-editor Mrs Bernice Lippiatt
Sub-editor Mr Garry Franke
The views expressed in Articles published in the QJA Journal are not necessarily the views of the Queensland Justices Association Inc. or the Board of Directors. © Queensland Justices Association Inc, claims copyright in all material published in this Journal. No material may be copied or reproduced without the written consent of the QJA. Printed by IPG Print, Telephone 07 3350 4262, 4 Millway Street Kedron Qld 4034. 16
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