In a speech to Monash University on Thursday, the Chief Justice of the Supreme Court, Marilyn Warren, called for a greater emphasis on statutory interpretation in legal education. Noting that “the ‘Priestley 11‘, the core subjects for a law degree… have not altered over the decades”, she observed that “[w]hilst cases on statutory interpretation feature significantly in the High Court of Australia and intermediate appellate and superior courts’ jurisprudence, statutory interpretation is not a compulsory subject.” The Chief Justice of the High Court, Robert French, expressed a similar view in 2011. When asked “What is the one piece of advice that you could bestow on a young law student?”, he replied, “I have got three words here: understand statutory interpretation. … I’m not sure there is enough emphasis given to it in legal education today.”
The Commonwealth Government will no longer provide legal advice to asylum seekers. Immigration minister Scott Morrison explained, “What we’re saying is that it’s not going to be the responsibility of the taxpayers anymore to fund people pursuing appeals and various other things through the process.” Monash University’s Azadeh Dastyari says the policy change will put genuine refugees at risk: “Several studies have shown that there is a clear correlation between having legal advice and the recognition of a refugee’s status. … There is … much to lose — including placing refugees in danger of persecution, torture or death.” The Government says asylum seekers should instead seek pro bono assistance from volunteer lawyers.
A shambolic week in the Legislative Assembly led to the defeat of the Napthine Government’s Jury Directions Bill. The chaos began on Tuesday, when independent MP Geoff Shaw missed a vote. With the chamber hung at 42-42, the Speaker, Christine Fyffe, used her casting vote to support the Government. The Opposition claimed this was in breach of a parliamentary convention that the independent speaker should vote for the status quo, and its six acting speakers resigned in protest. The Speaker’s vote passed the government business program, which set a deadline for debate of 4pm on Thursday. The lack of time to debate the Jury Directions Bill prompted Labor to vote against it, and Geoff Shaw voted with them: “It goes against what Parliament stands for, which is a discussion and a debate of legislation. This bill was not afforded that opportunity. And therefore I did not vote in favour of it.” The Government blamed the lack of time on the Opposition filibustering during the week.
The High Court has agreed to hear a challenge to Australia’s transfer of asylum seekers to Papua New Guinea’s Manus Island. The plaintiff’s submissions raise two arguments. First, they say the offshore processing scheme is unconstitutional because it goes beyond the “naturalization and aliens”, “immigration and emigration”, and “external affairs” powers in section 51. Alternatively, they say that using Manus Island as an offshore detention camp is unlawful because it would not adequately process claims or protect refugees. (This was the basis of the High Court’s 2011 M70 decision to overturn a similar plan to send asylum seekers to Malaysia.) The case will be heard against the background of ongoing investigations into the brutal killing of Reza Barati, and an ongoing tussle over whether PNG judges can order a human rights inquiry into the camp.
The Sentencing Amendment (Baseline Sentences) Bill 2014 has been introduced to the Victorian parliament, with the aim of increasing penalties for certain crimes. The legislation sets out an intended median prison term for an offence, and requires judges to “act compatibly” with that intention—without setting out a process to follow. Senior judges responding to a draft version of the bill told the government it was “unworkable”. The introduction of baseline sentencing was an election commitment made by the Coalition in 2010, which has been controversial. The incoming government sought the Sentencing Advisory Council’s advice on implementation, but its report observed: “The Attorney-General has not asked the Council for advice on the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. The majority of stakeholders expressed strong opposition to a baseline sentencing scheme.” The Law Institute of Victoria says the bill would “unduly limit judicial discretion, over-complicate the sentencing process and, ultimately, fail to act as a deterrent.”
In a landmark ruling, the High Court upheld Norrie’s right to have hir sex recorded as “non-specific” in the NSW Register of Births, Deaths and Marriages. The opening line of the unanimous judgment rejected the idea that gender is binary: “Not all human beings can be classified by sex as either male or female.” Simon Rutherford of A Gender Agenda, which appeared in the case as amicus curiae, said, “This a fantastic decision for gender diverse and intersex people, who simply want to be recognised for who they are.” The case was based on interpretation of NSW legislation, so it will not be directly applicable elsewhere, but it is an important step in a trend towards “bring[ing] the law into line with social understandings of sex and gender diversity.”
This week’s Radio National Law Report considers the difficulties faced by litigants who are forced to represent themselves in court. QPILCH′s Elizabeth Pendlebury says the system is difficult for non-lawyers to navigate: “They don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case before having a substantive hearing before somebody in the court system.” This can lead to people dropping their cases, even if they have a strong legal position. Judge Misso of the County Court says he tries to provide a “roadmap” for self-represented litigants, but the assistance judges can offer is limited in an adversarial system. The County Court is trying to improve accessibility with a new self-represented litigants coordinator, and a YouTube video guide to court processes.
The Supreme Court last night forced the Herald Sun to stop its presses, to prevent the possible identification of a criminal defence lawyer who was also a secret police informer. Articles published earlier this week have been removed from the paper’s website. The right to confidential discussions with a lawyer is fundamental to the criminal justice system; Justice Gummow described it as “a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights.” The Legal Services Commissioner says a lawyer who leaks against their clients could be charged with professional misconduct. Prominent lawyer Rob Stary has called for a royal commission to investigate the issue and restore public confidence in the system.
A Melbourne man has been ordered to spend 25 years in a psychiatric hospital after being acquitted of the murder of his parents on the grounds of mental impairment. The family is upset that he did not face trial. However, the court heard expert evidence from three independent psychiatrists, who all agreed that the accused was suffering from paranoid schizophrenia and that the psychotic episode was not drug-induced. Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) creates a defence to criminal charges where a person “could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong”.