The privileged position of journalists

At the end of March, the Federal Parliament finally passed amendments to the Commonwealth Evidence Act to create what have often been called journalist shield laws. This may, however, be a misleading description if the privilege, as it arguably exists to protect sources and promote the flow of information rather than to protect journalists.

As readers would be well aware, the Commonwealth amendments will only apply in proceedings under the Commonwealth evidence laws. So far, I haven't heard whether New South Wales or Tasmania plan to follow suit. However, last Friday, The Australian ran a story that Victoria will not adopt the same provisions, and will instead adopt slightly different shield laws.

The not-so-unfettered discretion

Some days, I just can't help but feel sorry for Parliamentary drafters. Take a reasonably simple provision like s669A of the Criminal Code (Queensland):

(1) The Attorney-General may appeal to the Court against any sentence pronounced by--

(a) the court of trial; or

(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.

When Parliamentary Counsel wrote that provision, what sort of fetters do you think he or she intended would apply to the Court's ability to vary the sentence and impose such sentence as seemed proper?

In Lacey v AG [2011] HCA 10, a 6-1 majority of the High Court (Heydon J dissenting) settled on the word "appeal" in the opening words to hold that, like other appeals, the appellate court could not interfere unless it first determined error in the original sentence.

The intention to be successful

Drug offences throw up all kinds of problems for the police and the courts. Traffickers are often highly organised and highly motivated. Trafficking is also an activity that, unlike many other crimes, is designed to take place on multiple occasions over a period of time. It can be, essentially, like a business. It is for that reason that courts have recognised that carrying on a business of trafficking is, itself, a form of trafficking. This is known as Girretti trafficking and its existence is relevantly uncontentious.

However, Victorian courts have recently been struggling with various issues around Giretti trafficking. In particular, how does Giretti trafficking operate in the context of aggravated offences such as trafficking a commercial quantity of a drug of dependence, or trafficking a large commercial quantity of a drug of dependence?