A record (not a transcript) of a conversation between David Whiting, Paul and the callers identified below, broadcast from 774 ABC Melbourne. Elements of the conversation have been deleted, or edited.
Paul:
Good morning. It’s that time of week where you can get some free legal advice, so jump on the phone. Our talkback lawyer, David Whiting, is joining us here. G’day David.
DW:
G’day, Paul.
Paul:
How are you?
DW:
Very well thank you.
Paul:
Jon Faine is not here today.
DW:
I’ve noticed. You’ve got more hair than he’s got.
Paul:
(laughs) barely. And he’s in the Supreme Court overseeing his niece becoming a lawyer. What is this ceremony? I’ve never heard of it.
DW:
When you finish your law course and you have met the requirements for entry to the profession.
Paul:
Yes.
DW:
You make an application to the Court to be admitted as an Australian Legal Practitioner and an Officer of the Supreme Court of Victoria. And that’s an application that’s made in a formal court setting and there might be 30 or 35 people applying at the same time. And somebody the technical term is ‘moves’ your admission. So you file an application to be admitted and Jon will stand up and say if it please the court I appear to move the admission of… as an Australian Legal Practitioner and an Officer of this honourable court.
Paul:
So you don’t have to be a fee paying practitioner?
DW:
I’m quite sure that Jon pays all his fees.
Paul:
(laughs) I thought he was done with it.
DW:
Once you’re admitted to practice, you become what’s called an Australian Legal Practitioner, or Australian lawyer is what you are. So that’s in a sense that’s the qualification and what you then do is apply for a practising certificate and the practising certificate brings with it professional educational obligations and the rest of it.
You’re required to have professional indemnity insurance and, when you’ve got those, you then apply for a practising certificate. So Jon’s an Australian lawyer because he met all of those requirements even though he doesn’t currently practise.
I’m a current legal practitioner because I have a practising certificate and the insurance and the other bits and pieces.
Paul:
I’m sure it’s a very exciting time for those mostly young people.
DW:
Absolutely yes.
Paul:
Getting into the fray and obviously Jon’s niece doesn’t listen to any advice or his program when he says that he’s glad to be on the radio instead of back in the court.
DW:
It’s a completely different world. I’m always impressed by people who report law cases. Because I’ve sat in court for days waiting for something to happen and it never does.
Paul:
Did you have any homework from last time?
DW:
I’m homework free but there are a couple of things that I thought I would flag. Last week, there was a fair bit of press about some suggestions about if you take a defendant to Court and they’re found guilty that it might be appropriate to make a compensation order in favour of anyone that has suffered loss as a result of those actions.
Paul:
A criminal matter? Maybe an assault?
DW:
An assault or you know, damage to property. I smash the windows of your car, is it appropriate that there be an order that I pay some level of compensation? All the evidence is that less than 2% of restitution or compensation orders get paid. And I think if you made it a compulsory element of the process, it’s not going to improve.
In a sense what you want are laws that people will honour and obey rather than I’m now going to make this compensation order which is effectively meaningless.
Paul:
So rather than toughen up, in that instance just know the reality that whoever smashed your window probably doesn’t have enough money to pay you. Or just won’t pay you.
DW:
I think it’s more likely just doesn’t have the resources to pay, so not going to be able to.
Paul:
What about a case overseas?
DW:
In 2014, the European Court of Justice ruled that irrelevant and outdated information could be removed from search engines on request. In a sense it’s a right to privacy; it’s an extension of that. At what point does news about me or you become irrelevant? So there were a couple of applications made to the High Court. Both decided by one judge; one got up, one didn’t.
The first one was where a business man said there were 11 publications that referred to his conviction and imprisonment 10 years ago for a surveillance offence. And Google was ordered to remove the link from those articles from searches on that person.
And the other person complained that Google links provided information on a conviction for conspiracy to account falsely for which he received a sentence of four years; so it’s a dishonesty offence. He was unsuccessful: that remains on the list.
Paul:
Well a conviction like that would stay on your record anyway; but some things don’t stay on your record.
DW:
It’s interesting. Every jurisdiction but Victoria has a concept of a ‘spent conviction’. So if you were convicted of a particular class of offence 12 years ago in NSW and you were asked if you had any priors the answer is you wouldn’t be required to disclose it. Technically the answer would be no. Because they’re regarded as spent: they’ve fallen off the end.
We, on the other hand, only have the concept of a spent conviction for a .05. So if a person’s last conviction for a .05 was more than ten years ago, then we’ll penalise you for the first level.
Paul:
But either way, unless you’re willing to go onto a big legal battlefront, people can just search you on the internet.
DW:
Well they can. Since 2014, google has received just out of Europe alone 2.4 million requests to, in a sense, stop tracking me.
Paul:
Yes okay, so one of those cases at least got some strong precedent. Let’s go to the callers now.