Topic: Substantive Law - Case: Pavlovic v The Commissioner of Police [2005] QDC 341

Topic: Substantive Law

Case: Pavlovic v The Commissioner of Police [2005] QDC 341

Pavlovic v The Commissioner of Police [2005] QDC 341, was heard on October 14, 2005, with the appellant; Zoran Pavlovic, appealing against his conviction for wilful damage, under s 469 of the Criminal Code. The appeal was heard in Beenleigh District Court, with Dearden DCJ presiding, and The Commissioner of Police as the respondent. The appeal was dismissed in the judgment handed down on October 20, 2005.

Basis for the Action:

The grounds for appeal was based on three points. The first being that a letter provided by a witness was incorrectly ruled inadmissible by the judicial officer. Secondly a miscarriage of justice occurred as fresh evidence was not brought before the judicial officer. And thirdly, that the judgment of the judicial officer was “unsafe and unsatisfactory.” The appeal was raised under s 222 of the Justices Act 1886, with the appellant feeling aggrieved by the order made against him.

Material Facts:

The appellant engaged the services of Troy and Daniel Oliver to undertake plumbing work on his property. Following the completion of this work there was a dispute over outstanding money. The appellant then invited Troy and Daniel Oliver to his residence to discuss this. A discussion took place in which the appellant said he was not going to pay them for their work, before ordering them off his property. As they did this the appellant approached their car and kicked the back quarter-panel, causing damage.

Judgement:

The appellant’s appeal against his conviction was dismissed with the Deardon DCJ ruling as follows. Firstly he found the trial judge was correct in ruling the letter from Ms Aneeta Prince as inadmissible on the grounds that, she should have called to give evidence in person or by phone, and that the prosecutor did not give consent for the letter to be tendered as evidence. A witness needs to be available to give evidence personally and be cross-examined. He also refused to allow leave for the appellant to find fresh evidence, finding no miscarriage of justice.

In regards to the grievance that the decision of the trial judge was unsafe and unsatisfactory he argued that the trial judge was right to accept the evidence provided by Troy and Daniel Oliver, and reject the evidence of the appellant, having the opportunity to weigh up the differing viewpoints as well as the demeanor and credibility of each witness. In determining whether the verdict was unsafe and unsatisfactory Deardon DCJ drew attention to the case M v R, and looked at its reasoning, agreeing that the trial judge looked upon the whole of the evidence and was satisfied beyond reasonable doubt, and that the judge was in a position to evaluate evidence that the appeal court could not. Deardon DCJ found the trial judge correctly formed conclusions and directed himself to the appropriate law.

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Topic: Procedure - Case: Police v Barchard [2004] QDC 131

In the case of Police v Barchard [2004] QDC 131, the accused; Mr. Peter Leonard Barchard, was convicted of fraud under s 408C(1)(a)(i) of the Criminal Code. The appeal was heard at the Southport District Court, with Newton DCJ presiding. The hearing occurred on March 29, 2004, with Leonard as the Appellant, attempting to overturn his conviction, and the Commissioner of Police as the Respondent. The appeal was dismissed in the judgment delivered on May 7, 2004.

Basis for the action:

The appellant lodged on appeal on several grounds, the first being that the written admission he made was the result of “overbearing and unfair conduct on the part of the investigators.” Secondly that the officer questioning him; Senior Constable Aubort, should have discontinued the interview following the phone call made to his solicitor, with s 418(3) of the Police Powers and Responsibilities Act applying. Further he also argued that the conversation he made with his solicitor was overheard, which is covered by s 419(1)(b) of the Act. The fact that the taped interview was not correctly terminated was also raised, with s 439(2) of the Act applying. The appellant also argued that the interview itself was interrupted by a telephone call Aubort received, and that it was unfair to be asked hypothetical questions.

Material Facts:

The appellant was employed as a valet by Conrad Jupiters Casino, with one of his duties being to arrange the parking of guest’s cars. Money would be collected from some of these guests, which was then to be placed into a container, along with the parking ticket. His employer became concerned as to whether the money received was being correctly recorded, so initiated a covert video surveillance operation. The appellant was subsequently interviewed by security staff and admitted to misappropriating some of the funds.

Judgement:

The appeal was dismissed with the judge finding as follows. In regards to the appellant’s written admission resulting from “unfair and overbearing” conduct, he found that the appellant chose not to answer several questions, and that no pressure was applied.

Aubort was also not required to terminate the interview following the appellants conversation with his lawyer, as he met his obligations under s 418(3) of the Police Powers and Responsibilities Act 2000 QLD, allowing a phone call to be made, with the appellant then electing not to have his lawyer present.

With regard to the appellant’s complaint that the conversation with his lawyer was overheard, the judge found that as a result of the interview taking place in the hotel room provided, it was not reasonably practicable for the conversation to not be overheard. Aubort acted correctly in leaving the room and removing the tape recorder, as s 419(1)(b) states, the conversation should occur where it cannot be overhead, where “reasonably practicable”, which in this case it wasn’t.

Regarding concerns that the interview was not correctly terminated, the judge ruled that s 436(2) only applies if it is “reasonably practicable” for the interview to be recorded. In this case a compact tape recorder was used that had no warning device as to when the tape would expire. He reasoned that it was clear though that Aubort was in the process of concluding the interview when the recording ended, and that the evidence should have been admitted as it was in the interest of justice and falls under s 439(2) of the Act.

The appellant’s final two points of appeal were that firstly the interview was interrupted by Aubort receiving a telephone call, and secondly that the asking of hypothetical questions was unfair. The judge dismissed both these points stating that no suspension of the interview was necessary, as Aubort was the only police officer present, and that the hypothetical question asked was without substance.

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Updates from the Teddington Legal Gold Coast Blog - Part #3:

A few updates from our blog:

Buying? Selling? – Property Prices on the Rise in Queensland:

If you’re thinking of buying or selling a property in Queensland, now is the time to do it as record growth in pricing is set to hit the State. For the last few years the major gains have been made...

Protecting Your Intellectual Property – Registering a Trademark:

Running a business is all about building a distinctive product or service and constructing a highly recognizable image that is immediately recognizable to your customers. Constructing this image is just the first step though, next you need to protect this...

Buying an Investment Property Using your SMSF:

Many people aren’t aware that you can purchase an investment property using funds from your self-managed superannuation fund (“SMSF”). There are of course a lot of conditions and restrictions in doing this, but with the property marketing often having a...

Defamation and Damages – Don’t Cast Your Net Too Wide:

A recent defamation case heard by the Supreme Court of New South Wales has highlighted the importance of carefully constructing your case for defamation and who the parties you wish to sue are. Taking legal action can be a very...

The ‘Australia Tax’ – The Cost of Digital Products in Australia:

You’ve probably heard the term ‘Australia Tax’ thrown around quite a bit in the media and it certainly deserves the attention it gets. We’ve always paid more for physical products in Australia due to our location and the cost of...

To learn more about the services offered by Teddington Legal Gold Coast visit our website.

A Practical Guide to Writing an Effective Social Media Policy:

Teddington Legal Gold Coast specialises in media law and providing appropriate legal advice to business to help them manage their brand image. Today a huge part of this image plays out in social media, which is why it is so important that your business have an appropriate Social Media Policy in place.

This policy has two main purposes. The first is to set-out how your business's social media presence is to be managed. Who will do it? Using what tone of voice? What mediums? What do we want to say?

The second is to manage how your staff utilise social media both in and out of the workplace. Are they permitted to use it at work? When can this occur? Are they able to say where they work? What are the repercussions of making a negative statement about the business on social media?

These are all questions that an effective Social Media Policy should set out to state.

We recently came across this great article that analyses social media policies in more detail and thought we would share it with you.

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A Practical Guide to Writing an Effective Social Media Policy:

For many organisations, social media is a double-edged sword. On the one hand, it can help spread goodwill about an organisation in an organic and genuine way.

However, the same characteristics that enable social media to benefit a company make it capable of destroying reputations if used incorrectly. To help encourage positive use of social media, while carefully mitigating any potential for risk, companies are finding it increasingly necessary to outline clear social media policies.

In much the same way that a mission statement provides overall direction for a company’s strategic decisions, and a style guide directs the way that your brand is presented visually to the public; a social media policy establishes a set of guidelines that govern how various company stakeholders represent your brand on various social networks.

Here are some practical considerations to have in mind when writing a social media policy for your organisation.

1. Incorporate your company culture

Before you start hammering out the technicalities of your company’s policy it is important to understand that the goal of any social guidelines should be to reinforce and reflect the unique values, culture and ideals of your organisation.

Prior to telling your employees how to be effective brand ambassadors online, it is necessary to have a strong understanding of the qualities you want them to exemplify as well as the unique attitudes of those employees.

For example, IBM understands that the type of employees they attract are people who are passionate about ideas and naturally want to share this information. Although such public sharing of private company knowledge can be risky, IBM realises that banning such activity outright would stifle the potential good it might produce and go against the nature of its employees.

One sentence from IBM’s social policy stands out in particular:

“Through these [online] interactions, IBM’s greatest asset—the expertise of its employees—can be shared with clients, shareholders, and the communities in which it operates.”

In one concise statement, IBM both establishes its position as an organisation that values its employees’ ideas and encourages their inclination to share these ideas. The tone of the rest of the document follows from this idea. The reader can sense that IBM trusts their judgement, and simply wants to encourage its employees to share online while exercising proper judgement.

Try following IBM’s lead by paying close attention to your organisation’s unique culture before attempting to create guidelines that your employees will be forced to follow.

2. Don’t underestimate the value of common sense

You wouldn’t have hired an employee if you didn’t believe they had good judgment, so it only makes sense to assume that if you ask your employees to exercise common sense online they will comply. The sheer variety of interactions that occur online all but guarantee that you won’t be able to anticipate and highlight all the things employees should avoid talking about online.

Certainly make sure to make specific note of the kinds of sharing that are explicitly forbidden (like proprietary company information, swearing, etc…), but also understand that simply asking your employees to use common sense before posting online can prevent a lot of missteps.

This is especially true if you followed the first piece of advice and made the values your organisation hopes to express online clear. Make clear what is expected of employees who choose to participate in social media. You can clarify even further by providing some templates or examples of good posts that they can refer back to in the future. 

By giving your employees enough latitude to trust their own instincts and communicating that you trust and rely on their good judgment, they will not feel like they are being forced to do anything and will instead feel personally responsible to represent the company sensibly.

Coca-Cola puts this advice in a very succinct and effective way: “When in doubt, do not post.”

3. Don’t discourage social media use

This might seem really obvious, but a lot of social media policies are written in such a way that they actually come off discouraging social media use. While policy might dictate that certain uses of social media are off limits, make sure to cut down on the amount of negative language and restrictions.

If employees feel that using social media might threaten their job, they will certainly not use it and also might end up resenting your organisation. There is even a slang term for losing your job due to social media missteps. 

The thing is that, when used correctly, social media can contribute a lot of value to your organisation. As mentioned before, IBM understands the value that social media can add to its organisation, and wrote its policy in such a way that clearly lays out the rules without being intimidating or overbearing. 

By communicating that you trust your employee’s good judgment and not being overly prohibitive you can not just prevent poor use of social media, but encourage its productive use.

4. Communicate simply and memorably

Although your social media policy must comply with various employment laws and clearly state what types of online communications are acceptable, try and avoid the stiff, stunted legalese that often plagues corporate communication.

Your social media policy, however well thought out, is useless if it is not readable and succinct. Keep your writing conversational and have your audience in mind. After all, they will probably only read it once but will have to follow it for their entire time with your organisation.

Take the lead from Wal-Mart, whose policy has a conversational yet authoritative tone, that makes it memorable and easy to read. The document has to appeal to a variety of stakeholders of varying formality and the author clearly took the time to write the policy in such a way that it worked for an associate or an executive level employee.

Making your social media policy easy to read will ensure that your employees react positively to the policy and will increase the likelihood that they remember and follow the guidelines you establish. 

Final thoughts:

It’s worth pointing out that all the guidelines mentioned above have a central theme in common. They all require that the social media policy’s author does not just rattle off a set of dos and don’ts, but rather considers his or her employees and organisation carefully.

The most effective policies are not those that impose the most restrictions or have the most fine print; rather, they are the rules that fit the existing culture so well, are articulated so clearly, and are made so self-evident that employees follow the rules without even realising thinking twice.

Article written by Brian Honigman and originally published on thenextweb.com

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The Existence of Free Speech in Australia:

Analysing the Racial Discrimination Act

Columnist Janet Lightning has found herself accused of breaching s18C of the Racial Discrimination Act 1975 (Cth), following the publication of a newspaper column and blog in which she made remarks regarding particular individuals and races that could be considered racist, in order to assert her opinion that Australia should cut back its immigration and refugee programs. She made the comments under the belief that there is an implied freedom of political communication under the Constitution.

1.    Outline:

Janet is seeking an advisement as to the constitutionality of s18C of the Racial Discrimination Act (Cth), in regards to the implied freedom of political communication. Her case will be outlined, as well as the section she is accused of breaching. An analysis of the constitutionality of the Act will also be discussed, especially regarding whether an implied freedom of political communication exists in light of this section of the Act.

2.    Case Outline:

In her newspaper column Ms Lightning accused some individuals of choosing a particular racial identity in order to benefit from the Government’s welfare programs. She went on to name particular races that she felt did not sufficiently contribute to Australian society. She used these points to justify her position that Australia should look at cutting back its immigration and refugee programs, and reducing the number of immigrants accepted from particular named races.

Following the publication of this column Ms Lightning has found herself accused of breaching s18C of the Racial Discrimination Act 1975 (Cth).

3.     Racial Discrimination Act 1975 (Cth):

The Racial Discrimination Act 1975 (Cth) was passed in order to implement into law Australia’s obligations under the International Convention on the Elimination of all forms of Racial Discrimination.

Section 18C of the Racial Discrimination Act 1975 (Cth) covers offensive behaviour because of race, colour or ethnic origin. S 18C (1) states; “It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

The comments made by Ms Lightning could be considered a breach of this section as firstly they were made in the public sphere, through her newspaper column and blog. S 18C(2) outlines when an act is considered to have being made in public. S182(2)(a) states an act is not done in private if it; “causes words, sounds, images or writing to be communicated to the public.” Janet’s comments fall under this section as they were communicated to the public through various mediums, those being, print in a public newspaper, and online through a public blog.

The next element of this section states the act; being the publication of the writing, is likely to offend or insult another person or group of people. Following on from this the Act states that the act must have been done due to the race, or ethnic origin of that other person, or group.

In her writing Ms Lightning made comments that were likely to offend or insult a particular racial group, by accusing them of adopting this identity to benefit from Government welfare programs. She went on to name particular races of not contributing to Australian society. These comments were made based on the ethnic race of the people she identified. Her comments would appear to in fact be a breach of s 18C of the Racial Discrimination Act.

These comments were made by her under the pretense of political freedom of speech to convey her opinion that Australia should cut back its immigration and refugee programs.

4.    The Constitutional Validity of the Racial Discrimination Act 1975 (Cth):

Section 51 of the Constitution gives the Commonwealth Parliament the power to “make laws for the peace order and good government of the Commonwealth” in regards to the topics listed in the section.

   4.1. Race Power:
Section xxvi lays out the Commonwealth’s race power, stating that Parliament has power to make laws for “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.” However the reference to the exclusion of Aboriginal people was removed in a referendum in 1967 giving Parliament the power to pass laws applying to them. 

In Koowarta v Bjelke-Peterson [1982] HCA 27, the High Court found that as the Racial Discrimination Act addressed discrimination against all races, and not just a particular race it had no basis under this section of the Constitution. Chief Justice Gibbs stated that, “a law which applies equally to the people of all races is not a special law for the people of any once race.”

In his judgment Justice Wilson said; “There is a touch of irony in the fact that the Commonwealth seeks to support the validity of an Act to give effect to these principles [of equality and non-discrimination] by relying on a power to enact discriminatory laws, whether for good or ill, for the people of any race.”

This section of the Constitution enables for the passing of laws that discriminate between the people of the race the law was made for, and everyone else. While the Racial Discrimination Act is designed to eliminate discrimination amongst all races.

   4.2. External Affairs Power:

In Koowarta v Bjelke-Peterson, the High Court found the Racial Discrimination Act to be valid under the Commonwealth’s external affairs power, which is covered under s 51 xxix of the Constitution. The term external affairs is not defined in the Constitution.

The court found that the Act was intended to give effect to the United Nations Convention on the Elimination of all Forms of Racial Discrimination (CERD). Australia signed the convention on October 13, 1966 and the government argued that the Act fell under this power as it gave effect to Australia’s international obligations as a signatory to the convention.

The question the court had to consider was whether the Act could be considered an ‘external affair’ due to it applying entirely within Australia. The government’s argument was that as a signatory to the convention Australia’s international reputation would be damaged if it were unable to fulfill its obligations under the convention. The court found that the Act was valid as it did in fact fall within the Government’s ‘external affairs’ power.

The decision in Koowarta v Bjelke-Peterson validated the Racial Discrimination Act under the commonwealth’s ‘external affairs’ power, outlined in s 51 xxix of the Constitution. What must be considered though is its validity in light of the implied freedom of political communication that is present within the Constitution.

5.    Freedom of Political Communication:

Ms Lightning made the remarks in question under her belief of the existence of an implied freedom of political communication within the Constitution, and there is precedent to justify the existence of this freedom. Previously the High Court has highlighted ss 7 and 24 of the Constitution as implying this right, stemming from the aim of these sections for the protection of representative government. The High Court has described freedom of communication regarding political matters as an “’essential’, ‘necessary’, ‘indispensable’, ‘presupposed’, or ‘inherent’ element of representative democracy, concluding that within the Constitution rests an implied protection of freedom of ‘political’ communication.

Defamation and the implied freedom were discussed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, where David Lange, who at the time was the Prime Minister of New Zealand, brought an action in defamation against the ABC for comments made in the program Four Corners. The court in its reasoning accepted that protecting the reputation of an individual was appropriate and adapted, and that political comments could be defamatory.

   5.1 Freedom of Speech:

Article 19 of the Universal Declaration of Human Rights (UDHR), adopted by the United Nationals General Assembly in 1948 states that; “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” On December 10, 1988 to mark the 50^th anniversary of the declaration the Commonwealth government reaffirmed its principles and pledged to give “wholehearted support” to these.

Australia is also signatory to the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) treaty, in which Article 19 states; “everyone shall have the right to freedom of expression.” However for such a treaty to be made into law the Commonwealth Government must pass an Act of Parliament affirming its principles. Only certain aspects of this treaty have being made into law in Australia, for example the Human Rights Commission Act 1981. The reference to freedom of expression has never been implemented, and is therefore unenforceable by Australian courts.

Even though there is support for the theory of freedom of speech, there is very little actual law to support it. The Constitution does not contain any provision relating to the principle, leaving the door open for the Government to pass legislation that restricts or censors speech, as long as these laws are within its constitutional power.

   5.2. The Construction of the Implied Freedom of Communication:

Decisions by the High Court in the 1992 cases of Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, and Australian Capital Television v The Commonwealth (1992) 177 CLR 106, indicated the existence of an implied freedom of communication within the constitution. However it is limited to speech and communication on matters relating to politics and government.

In Lange v Australian Broadcasting Corporation the court found this implied freedom to be ongoing, and not limited to election periods, due to its purpose being the functioning of a representative government. This implied freedom allows for a freedom of communication between voters and their representatives, and must therefore operate continuously.

The court did highlight the fact that the implied freedom was a negative right, in that its operation acts as a restraint on the executive and legislative power to the extent that these powers would burden the implied freedom.

The right to publication was also upheld in Lange v Australian Broadcasting Corporation where the court found that the publication of political matters was justified as voters have an interest in receiving this information.

Rather than legislating for freedom of speech, Governments at various levels have legislated to prevent free speech in certain circumstances. With no protection of this fundamental freedom under Australian law legislation such a defamation laws and racial vilification laws, such as that in question, the Racial Discrimination Act, have curtailed the right to freedom of speech. It is best described as a residual freedom, with free speech being that which is not restricted by laws of limited scope.

In Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, the definition of political communication was widened so that it encompassed matters of general public debate, which “might inform public opinion on a range of issues.” However this broad definition was later rejected in McGinty v Western Australia (1996) 186 CLR 140, where the court found it to be “too far removed from the text of the Constitution.” It was emphasized that the implied freedom of political communication had to be read in a manner consistent with the construction of the Constitution, and not on the broader concept developed in Theophanous.

In its current form this implied freedom is not a ‘right’, but rather an immunity from some legislative and executive powers. It is best constructed as an immunity from actions of Government in relation to political communication, to protect our system of representative government. There must be a freedom of communication on political matters to protect individual autonomy, as people need access to ideas in order to vote in an informed way, and be involved in public debate.

   5.1 The Validity of s 18C:

A test involving two stages was developed in Lange v Australian Broadcasting Corporation to test the implied freedom of political communication. Firstly the law in question must be analysed as to “whether [it] effectively burdens freedom of communication about Government or political matters in terms or effect.” Secondly “whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.” If the answer to the first element is yes, and to the second element no, then the law is invalid.

When applying this test to the current circumstances the following can be found. Firstly it must be ascertained whether s 18C of the Racial Discrimination Act burdens freedom of communication regarding ‘Government or political matters’. The section in question makes it unlawful to do an act, which could “offend, insult, humiliate or intimidate another person or a group of people.” Applying the negative reading of the ‘right’ of implied freedom, its aim is to free speech as a freedom from intervention from the Government. Therefore it must be ascertained whether s 18C of the Act intervenes with an individuals ‘right’ to freedom of political communication. Making comments in a negative light that could offend another person, and doing so because of their race, colour or origin, could be seen to intervene with a freedom to communicate on political matters.

A defence to s 18C that would negate any intervention of this ‘right’ lay in s 18(D) of the act, which states, “Section 18C does not render unlawful anything said or done reasonably and in good faith.” Therefore if the comments are made in good faith, and are “a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment,” they will not be found to breach s 18C, limiting the impact of its intervention of the implied freedom of political communication.

The second stage of the test asks whether the law is “reasonably appropriate” in serving a legitimate end in maintaining our system of representative government. In Coleman v Sellars (2001) 181 ALR 120 the defendant Patrick Coleman was convicted of breaching a council bylaw, after he held up a flag, stood on a table and loudly discussed political issues in a public mall. In this case the court found the law, which involved prohibiting any person from taking part in any public demonstration or public address in the Flinders Pedestrian Mall, to burden the right to freedom of political communication, however deemed to be reasonably appropriate, validating its operation. This comments made by the defendant were purely political in nature, however the law was found not to impact on the freedom of political communication.

6.    The Political Nature of Ms Lightning’s Comments:

The question that must be answered in this case is whether the comments made by Ms Lightning were in fact political in their nature.

A recent decision that is particularly relevant to Ms Lightning’s situation is that of Eatock v Bolt [2011] FCA 1103, in which the defendant, Andrew Bolt, was found guilty of breaching s 18(c)(1) of the Racial Discrimination Act. The case was based on articles written by Mr Bolt that implied light-skinned peopled who identified themselves as Aboriginal did so for personal gain.

His defence lay in s 18D of the Act. Janet could also use this defence and argue her case under s18D(c)(ii). However her comments were extremely similar to those made by Mr Bolt, and in that case Judge Bromberg ruled that Mr Bolt’s comments were not made in good faith, and that “the language utilized in the newspaper articles was inflammatory and provocative.” For the defence to be successful the comments must be done in “reasonably good faith” and in a pursuit of public interest.

Ms Lightning’s comments would appear to fail this defence as they could be considered inflammatory, and not made in “reasonably good faith,” as she named particular races and defamed the entire population of these races.

7.    Conclusion:

Following the judgment against him Mr Bolt commented to reporters that the decision was “a terrible day for free speech in this country,” although it appears there is a sufficient defence built into the Racial Discrimination Act to protect free speech when in is done in good faith in pursuit of public interest. The comments made by Ms Lightning are likely to be found to breach s 18C of the Act, which following analysis appears to be constitutionally valid. The application of the test developed in Lange v Australian Broadcasting Corporation backs up the laws validity, deeming them to be appropriate.

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