He has also served as vice-president (1998–2002) and president (2003–2004) of the Victorian Council for Civil Liberties, and was a founding board member of the National Children’s and Youth Legal Centre (1993–1999), the Public Interest Law Clearing House (Victoria) (1994–1996), and the Human Rights Law Resource Centre (2006–2007), as well as a committee member of the Criminal Bar Association (2005–2006).

Thanks to such extensive experience, Greg Connellan’s contribution to the Criminal Law, Investigation and Procedure Victoria is spread over many commentary areas:

• Property Offences
• Public Order
• Identification
• Search and Seizure
• Electronic Surveillance
• Summary Trials
• Summary Offences
• Vagrancy
• Sex Work
• Prevention of Cruelty to Animals
• Domestic Animals
• Fisheries
• Classification (Publications, Films and Computer Games) (Enforcement)
• Gambling Regulation
• Family Violence
• Control of Weapons
• Firearms

Below, we ask Greg Connellan about his time on Criminal Law, Investigation and Procedure Victoria and his perspective on upcoming developments that might affect the service: 

How would you describe your years as an author for this service?

Very enjoyable – it has certainly helped me keep up with changes in the law.

What value do you feel the service provides to Victorian practitioners?

It is an enormous resource, particularly for solicitors practising criminal law in rural, regional and the suburbs as it contains a full range of the legislation up dated and useful commentary as well as covering all the important fundamentals.

Has your appointment as a Magistrate affected your approach to writing commentary for the service?

The only significant change has been that I am less inclined to argue that once interpretation of a statute is to be preferred over another. Otherwise I don’t think it has changed my approach, save sometimes I worry I am not as up to date with the commentary as I used to be because of work pressure.

What major changes or trends in the Court’s dealing with matters have you observed during your time as author?

The focus on pre-trial disclosure, negotiation and possible resolution, combined with a more active approach by the court to defining the issues in dispute have been the most significant changes. In the area of sentencing there has been a very significant shift towards the lower court engaging in a solution focused approach to issues in offenders lives with a view to improve the quality of their lives with the important side benefit of reducing recidivism. Both of these significant changes will have strong long-term benefits for the community.

Have any particular areas become more significant during your time working on the service?

I have always enjoyed the areas of identification, search & seizure, electronic surveillance and summary trial procedure more than annotation and commentary on legislation but inevitably the demand for up to date annotation, in a vain attempt to keep apace of Parliamentary activity, takes over.

Are there any upcoming developments that will affect the service?

Certainly, the online world will be a greater focus into the future. Even now Ipads are the in-court tool of choice to prosecution and defence. In some ways these tools create real challenges for services such as this as there is so much legal information available online now. The role of services such as Criminal Law, Investigation and Procedure Victoria is increasingly to provide lawyers with a road map to the issues, legislation and cases rather than to provide the definitive legal gospel.

Having recently acted on behalf of the government in Momcilovic v The Queen, a highly publicised recent High Court case which considered Victoria’s Charter of Human Rights, Alistair gives us his take on this important development:

Momcilovic v The Queen was a case of a Queensland resident accused of trafficking drugs in Australia. What were the key points of contention?
There were a number of issues in contention.  The accused was charged with trafficking. Trafficking could be established by proving that a person had a traffickable quantity of drugs in their “possession for sale”.  Section 5 of  the Victorian Drugs, Poisons and Controlled Substances Act 1981  (Drugs Act) reversed the onus of proof on the issue of “possession” because, instead of requiring the prosecution to prove possession beyond reasonable doubt, the section provided that if drugs were found on premises occupied by a person, the person was presumed to have been in possession of them unless they satisfied the court to the contrary.  The accused argued that s 5 should be interpreted so that, instead of imposing on her the burden of proving on the balance of probabilities that she was not in possession of the drugs (a legal burden), all she had to do was lead some evidence that she was not in possession (which she did at her trial) before the burden moved back to the prosecution to prove possession beyond reasonable doubt (an evidential burden).  The accused also argued that that interpretation could be reached by applying the interpretive obligation in s 32(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006.  The Victorian Court of Appeal disagreed.  It held that s 5 could only be interpreted as imposing a legal burden.  It also held that to impose a legal burden on a defendant was incompatible with the presumption of innocence in s 25 of the Charter and therefore made a declaration under s 36 of the Charter that s 5 of the Drugs Act could not be interpreted consistently with the Charter.  

In the High Court, a number of further issues came up.  Did s 5 of the Drugs Act apply to the offence of trafficking?  Was s 5 of the Drugs Act inconsistent with the equivalent trafficking offences in the Commonwealth Criminal Code Act 1995, which did not contain a reverse burden on the issue of possession, and was s 5 therefore inoperative by reason of s 109 of the Constitution?  Did ss 32 and 36 of the Charter impose non-judicial functions on the Court and, if so, did they infringe the Kable principle?   Was the case a matter in federal jurisdiction because of the accused’s residence in Queensland at the time of her trial and, if so, did the Charter operate in federal jurisdiction?
 
What led to the original decision being overturned?
By a majority of 5:2, the High Court held that s 5 of the Drugs Act did not apply to the offence of trafficking.  Section 5 was concerned with the concept of “possession”.  The majority held that it did not apply to the composite concept of “possession for sale” in the definition of trafficking.  That was enough to overturn the accused’s conviction.

What is the most significant impact of this case?
The most significant aspects of the decision are to be found in the Court’s consideration of the operation of s 109 of the Constitution and the operation of the Victorian Charter.    The impact on the Charter is discussed below.  In relation to s 109, the Court held by majority that s 5 of the Drugs Act was not inconsistent with the Commonwealth Criminal Code Act 1995.  

The High Court judgment has been hailed as an affirmation of the Victorian Charter of Human Rights – what do you think is in store for the Charter?                                                                                                                                      The Court, by different majorities, upheld the validity of the Charter, but the judgments are not exactly a glowing affirmation of it.  French CJ, Crennan, Kiefel and Bell JJ upheld the Charter in its entirety.  Gummow and Hayne JJ held that the declaration power in s 36 infringed the Kable principle and was invalid and that ss 33 and 37, which were inseverable from s 36, were also invalid.  Heydon J held that the entire Charter was invalid.  On the question of the strength of the interpretive power in s 32(1) of the Charter, a majority of 6:1 held that it was an ordinary interpretive rule, essentially comparable to the common law principle of legality.  In coming to that conclusion, the majority held that s 32(1) was a less powerful obligation than the comparable interpretive obligation in s 3 of the UK Human Rights Act 1998.  While this was enough to ensure the validity of s 32(1), it does reduce the power of the Charter to protect human rights through statutory interpretation compared to the UK Act.  Only Heydon J would have given s 32(1) a more powerful operation, comparable to that of the UK Act, but this was one reason why his Honour would have held the section invalid.

Shortly after Momcilovic was handed down, the Scrutiny of Acts and Regulations Committee of the Victorian Parliament published its report of the four-year review of the Charter.  A majority of the Committee recommended that, while the role of the Charter in the processes leading to the enactment of legislation should be maintained, the Charter should no longer play any role in the courts.  The majority of the Committee therefore recommended that key parts of the Charter (including s 32(1) and the obligations on public authorities in s 38) should be repealed.  The Government’s response has not yet been announced.   At the time of writing, the future of the Charter is, at best, uncertain.

For more information on this decision, as well as other developments in administrative law in Victoria, see Victorian Administrative Law.

In September, the service published Professor Bagaric’s new commentary to the Charter of Human Rights and Responsibilities Act 2006 in Ch 2.12A – Human Rights. The commentary covers the following areas:

• Aim of the Charter;
• Background to the Charter and overview of rights that are protected;
• Impact of the Charter;
• Limitation clauses in the Charter
• Interlocutory appeals;
• Charter application to bail – ss 21 and 25;
• Humane treatment in prison – s 22;
• Right to a fair trial;
• Right not to be tried or punished more than once – s 26;
• Retrospective criminal laws – s 27.

We will also be publishing Professor Bagaric’s commentary to the Evidence Act 2008 in the coming months.

Professor Bagaric, of Deakin University’s School of Law, has a particular research interest in Criminal law, Evidence and Human Rights, and has written and edited numerous texts and articles on these topics. Sentencing law and practice is a particular area of his expertise, and we’re delighted to be releasing later in November the new service he has written with barrister Richard Edney. Australian Sentencing provides immediate offence- and principle-based guidance on the considerations that impact on sentence. See Australian Sentencing for further details.

Prior to joining Deakin’s School of Law, Professor Bagaric was at Deacons (formerly Sly & Weigall) and the Office of Public Prosecutions (Vic). He is also a part-time practising lawyer, as the Principal of Mirko Bagaric Lawyers.

Professor Bagaric is also part of the high calibre and experienced author team behind Thomson Reuters’ Federal Offences, and is a General Editor of the Criminal Law Journal and a Title Editor for The Laws of Australia (9 – Criminal Law Principles and 10 – Criminal Offences).

Nicholas Tucker currently authors material in Summary Offences Queensland and Motor Vehicle Law Queensland.

He is also working on updates to material on Cultural Heritage (Aborigines and Torres Strait Islanders) and Child Welfare (Family Law) for The Laws of Australia, which will publish in early 2012.

Nicholas is embarking on a major enhancement of Summary Offences Queensland, with the addition of 4 brand new chapters on the topics of:

• Mental Health
• Victims of Crime
• Drugs Court
• Children

These Chapters will enrich the coverage of the service and are due to publish in late 2011 and early 2012. Paper subscribers will be receiving a new binder in the coming months which will hold these new Chapters.

A Barrister at the Queensland Bar, Nicholas specialises in commercial law. He also undertakes work in the family and criminal and childrens jurisdictions, in addition to his work in relation to family provisions.

Nicholas holds a degree in Economics from Sydney University, a Juris Doctor from the University of Queensland and will graduate with a Master of Laws from The Australian National University in 2012 prior to embarking on a PhD. He is also a certified management consultant, (CMC) and experienced mediator having practised internationally for over 15 years.

Nicholas is the current Chairperson of the Queensland Child Witness support agency (PACT). PACT represents the interests of child victims and witnesses in the criminal justice system. Its aim is to enhance child protection by reducing the trauma experienced by children and young people (aged 3-17 years) who are required to give evidence within the criminal justice system as victims or witnesses.

Nicholas is also the Deputy Chair of the Queensland Sentencing Advisory Council, a 12-member independent body that is to improve the transparency of sentencing decisions in Queensland, leading to reform and increased accountability around sentencing. The Council has handed down its first report to the Queensland Government on Standard Non Parole Periods and this was tabled in parliament on 11 September 2011.

If you have any questions or feedback, please contact Catherine Roberts, Product Manager – General Law: catherine.roberts@thomsonreuters.com or (02) 8587 7327.

Federal Court Practice has responded to this major change by publishing the new Rules, along with comparative tables and introductory commentary. The service is retaining the former Rules (now renamed “Federal Court Rules (1979)”) and all of the related commentary because there is substantial comparability between the former Rules and the new Rules.  For this reason, the annotations to the former Rules will also continue to be updated for some time as new decisions made pursuant to them are handed down.

Federal Court Practice online subscribers now have access to the new Rules. The comparative tables, which provide an easy reference tool between the sets of Rules and Forms, are also available online. Due to late registration of the new Federal Court Forms, these will be online tomorrow.  

For Federal Court Practice paper subscribers, a separate binder will be issued with the August 2011 update, which is being mailed next week. The new volume will be entitled “Federal Court Rules (1979)” and will be supplied so that the former Rules and related commentary are retained for future reference.

The commentary to the Federal Court Rules 2011 will be written as the decisions of the Federal Court applying the new Rules begin to be handed down.  There are differences in terminology between the two sets of Rules and future commentary will discuss issues that may arise from these differences. 

Thomson Reuters is committed to continuous improvement of its products and services to ensure they meet the changing needs of our subscribers. We welcome feedback from subscribers as to how we can make Federal Court Practice even more useful for users. Please contact Catherine Roberts, Product Manager – General Law: catherine.roberts@thomsonreuters.com or (02) 8587 7327.

Although the new Federal Court Rules 2011 have been redrafted, there remains a substantial comparability with the current Federal Court Rules, which will be repealed with the commencement of the new Rules on 1 August 2011. The commentary to the Federal Court Rules 2011 will be written as the decisions of the Federal Court applying the new Rules begin to be handed down.  While retaining a high degree of comparability, there will be differences in terminology between the two sets of Rules and future commentary will discuss any significant issues that may arise from these differences.

The existing commentary to the former Federal Court Rules will be retained in the service. For our paper subscribers, a separate binder will be issued with the August 2011 update, which will be sent out in the first week of August. The new volume will be entitled Federal Court Rules (1979) and will be supplied so that the Rules and commentary may be retained for future reference.

The new Rules and associated Forms will be issued to subscribers in the first week of August. Along with this new material, we are publishing a comparative table and introductory commentary to make subscribers aware of the changes and make the new Rules easier to navigate and provide an efficient means of referencing the former Rules during the transition.

If you have any questions or feedback, please contact Catherine Roberts, Product Manager – General Law: catherine.roberts@thomsonreuters.com or (02) 8587 7327.

Federal Court Practice and Federal Administrative Law will be revised to ensure that our customers are fully prepared for the changes. We are committed to ensuring that subscribers will have the new Rules on or before 1 August 2011 and we are currently working with Justice Flick on the full details of our response to these significant changes. Aids for navigating the changes, such as conversion tables, are also in the pipeline. 

We will be communicating in greater detail with our customers regarding our coverage of the new Rules as we get closer to the commencement date. Stay tuned!

To assist practitioners in keeping up to date with changes in the law, Greg Connellan has comprehensively reviewed and updated the service’s commentary on the Summary Offences Act 1966.

Legislation has also been amended in the service. Road Safety Act 1986 was amended by Sentencing Amendment Act 2010 (Act No 77 of 2010), s 28, with effect from 1 May 2011. This amendment removes the mandatory term of imprisonment for a subsequent offence of driving whilst disqualified or suspended.

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