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Tony, Michael and David Partners at ABKJ
ABKJ Lawyers

Newsletter – December 2010

Welcome to the December 2010 edition of the ABKJ newsletter.

In this issue…


Case in point: A lady’s got my dingo

A landmark case highlights the importance of legislated regulations that protects Australian fauna and flora

Under the Nature Conservation Act 1992, the dingo is declared an indigenous Australian species, with sections 17 and 62 instructing that dingoes cannot be interfered with in a protected area unless specific permissions have been granted.

Jennifer Louise Parkhurst, 43, of Rainbow Beach was found guilty of 46 charges in relation to violations of the
Nature Conservation Act and the Recreation Areas Management Act where provision is made for the protection of the dingo as a natural resource.

Ms Parkhurst appeared in the Maryborough Court where she pleaded guilty to the interference of a natural resource by luring, feeding, photographing and filming the animals. Ms Parkhurst was fined $40,000 and received a three year suspended jail sentence.

Why a ‘natural resource’?
The Fraser Island dingo is believed to be the purest genetic strain of dingo in Australia, freely roaming the bush, beaches and rainforest of the island.

Dingoes in the wild are a natural part of Fraser Island and its World Heritage value. Protective regulations help to ensure that humans do not have a detrimental impact to the species.

It is estimated that there are between 100 and 200 dingoes on Fraser Island.

The argument
Dingoes are notable scavengers and will readily steal food that may be unguarded.

Media reports over the last few years have claimed Fraser Island dingoes are suffering from starvation including suggestions the earlier removal of brumbys from the island had taken a food source for the animals and added to the decline in their health.

The claims have been refuted by the State Government.

Ms Parkhurst claimed she had undertaken a campaign to photograph and document the dingoes on the island in an attempt to illustrate the “mismanagement” of dingoes on the island.

Video and photographic evidence showed Parkhurst had been interacting with the animal for some time, having previously been threatened with a $300 on-the-spot fine for venturing onto the island.

The judgement
In court, Ms Parkhurst admitted to feeding and photographing seven dingoes from the time they were pups. The magistrate said Ms Parkhurst’s actions were to be condemned because of the scale and “deliberate nature” of her offences.

In video evidence submitted to the court, Parkhurst could be seen feeding the dingoes while saying: “Three roast chickens – one of which is free-range and cost a fortune – disappeared in seconds – but gee-wizz they loved it!”

Ms Parkhurst said: “I’m extremely remorseful because those dingoes were inadvertently killed because of my involvement.” (Six of the seven dingoes were later humanely destroyed for showing aggressive behaviour towards humans.)

Sustainability Minister, Kate Jones said: “The case has sent a clear message to the public. This is a significant sentence and should act as a warning to others to respect the laws in place to protect Fraser Island.”

“What has been most distressing is these same dingoes were responsible for a later number of serious attacks on two children.”

Consequences
Dingoes which have had interference with their natural behaviours grow up scavenging and lose their natural wariness of humans.

The Queensland Parks and Wildlife Service warns that feeding dingoes can change their behaviour and have severe
consequences – “if pups learn to associate humans with food they do not learn to hunt.”

Tips when around dingoes:

  • Don’t feed them
  • Always keep an eye on your children
  • Always walk in groups
  • Lock away all food and rubbish
  • If threatened, don‟t run. Instead call for help!

Neighbourhood Disputes Resolution Bill 2010

In October, a man from Morayfield, north of Brisbane, was charged with the assault of his neighbour, telling police “…he wouldn’t trim the hedges.”

In Queensland, issues relating to trees and fences are the most common form of neighbourhood dispute – there is currently no statutory law in Queensland that provides for disputes relating to nusiance trees, and laws relating to fencing date back to 1953.

As our population grows we find that we are living in closer spaces than ever before, prompting the Queensland Government to release a draft consultation paper on how neighbourhood disputes can be resolved.

The consultation materials provide for clearer guidance in the instance of a dispute through better definitions for trees and retaining walls, confirmation of the ownership of a tree and the appointment of the Queensland Civil and Administrative Tribunal to assist in the resolution of neighbourhood disputes.

These changes are not yet law and are still being considered.

What does this mean for you?

  • As a tree owner (“tree keeper”) you are responsible for the cutting and removing of overhanging branches, ensuring a tree does not cause damage or injury to a person or a persons property
  • Ownership of a fence on a property boundary is shared between neighbours
  • Before cutting down a tree it is best to contact your local government
  • An edging hedge is recognised as a fence

To ‘tweet’ or not to ‘tweet’?

Should a teacher ‘friend’ a student on Facebook? Your boss adds you as a friend: confirm or ignore?

Social-networking has indeed become part of “everyday life” with new uses and  applications continuing to emerge.

This article takes a glance at the emerging  issue of social-networking in the legal space.

The use of social networking  continues to grow with Facebook and MySpace boasting more than 350 million members between them. But the list of issues governing appropriate use of social networking and freedom of speech is growing too.

Historically, legal papers were served in person or via the post, and jurors kept their deliberations in strict confidence, but in 2010 things are a little different. The following are recent examples in which the world of social networking has played a part in the legal process:

  • October 2010 – Australian police undertake a national first when they serve court papers to a cyber-bully via social networking site, Facebook. Having previously tried to serve the papers in-person, via post and over the phone, police seek the court’s permission to serve the papers via the social networking platform. A written and video copy of the order was sent to the man’s inbox where he accepts the order and vows to delete his profile page.
  • October 2010 – A mother in a custody dispute discusses “…ripping her husband off for another $20,000”. The judge grants custody of the children to their father then orders the mother to pay $15,000 of his approximate $35,000 legal bill.
  • October 2010 – A British schoolboy is charged after killing a cat and later discussing the incident on his Facebook page.
  • October 2010 – A Brisbane man charged with murder may appeal to have his case permanently stayed after prejudical information is published on the internet.
  • March 2009 – A juror in Florida, US, admits to the judge that he conducted internet research into the case. On questioning other jurors it became evident that eight others also researched the case. The judge declared a mistrial.
  • February 2009 – A juror in Arkansas, US posts eight “tweets” on Twitter during court proceedings. The defence counsel seeks a motion for a mistrial when one discovered tweet reads, “I just gave away TWELVE MILLION DOLLARS of someone else’s money.”
  • 2008 – A juror takes a picture of a murder weapon and posts it to his social networking page. The photo of a 15-inch double edged, saw-tooth knife sees the juror charged with contempt of court.
  • 2006 – The New Hampshire Supreme Court, US hears a motion to overturn a murder conviction based on pre-trial comments by a juror on his blog. The juror wrote, “…now I get to listen to all the local riff-raff try to convince me of their innocence”

Tips For Social Networking Use:

  • Remember: You put it out there – forever!
  • Getting divorced? Stay off Facebook!
  • Be aware of privacy tools available to you, and how to use them
  • Know who is in your friend network, and who you are adding
  • Don’t drink and type – everyone in your network can see it!
  • Always be vigilant about the information you post online