An interlock device is a breath-testing machine that prevents a car being started if the driver has alcohol in their breath. Under current Victorian law, “disqualified drivers found to be over 0.15, repeat offenders or those under the age of 26 who record 0.07 are required to have the devices fitted”. However, the Government has introduced the Road Safety Amendment Bill 2014 into the Legislative Assembly, which would tighten the rules so that they apply to disqualified drivers over 0.07, first offenders over 0.07, and probationary licence holders over the legal limit. According to the Transport Minister, Terry Mulder, “drink-drivers are responsible for 25 to 30 percent of deaths and 11 percent of serious injuries on our roads, while repeat drink-drivers make up 20 percent. Thirty per cent of drink-drivers involved in fatal crashes are repeat offenders.”
Attorney-General George Brandis is reportedly “preparing to water down a controversial plan to scrap sections of the Racial Discrimination Act that restrict racist insults and hate speech”. A draft bill was released for public comment in March. As a result of lobbying, protests, petitions and written submissions, the Attorney-General is now rewriting the proposal, saying, “We did not engage in a period of both private and public consultation without intending to listen to what people had to say to us“. The government received more than 5300 submissions on the bill. (My submission is available here.)
Commonwealth Treasurer Joe Hockey is suing the Fairfax media company for defamation over articles published in its newspapers under the headline, “Treasurer for sale: Joe Hockey offers privileged access”. The articles described expensive fundraising dinners that allowed people to secretly contribute up to $22,000 to the Liberal Party, bypassing donation disclosure laws. Hockey claims the articles suggested he was corrupt, and that he has been “greatly injured, shunned and avoided” as a result. If the matter goes to trial (which is by no means certain), it will require the court to apply the precedent set by Lange v ABC: publication of defamatory matter is protected if it relates to political issues, is reasonable, and is not motivated by malice.
Section 5 of the Sentencing Act 1991 (Vic) sets out five principles for sentencing in Victoria: punishment, deterrence, rehabilitation, denunciation and protection of the community. Each of these might be more or less significant in a particular case. The Court of Appeal today ruled: “General deterrence is of fundamental importance in cases of domestic violence.” Their Honours explained: “The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.” This decision forms a precedent that will need to be followed by courts sentencing for domestic violence in future. The Court upheld the man’s 8 year head sentence, with a non-parole period of 6 years, for breaking his de facto wife’s arms.
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”
Former High Court judge, Michael Kirby, was appointed by the UN to head a Commission of Inquiry on Human Rights in the DPRK (North Korea). Based on testimony from refugees, the commission’s report found that terrible human rights abuses were committed in North Korea, and warned that its leaders faced prosecution for crimes against humanity. North Korea responded with a personal attack on Kirby. Last week, The Guardian organised an Ask Me Anything session on the Reddit forum, and Kirby fielded questions on the commission’s process and findings, and his views on what should occur next. Although he was realistic about the prospect of Kim Jong-Un facing trial—“There is absolutely no possibility that the present Supreme Leader of North Korea would appear voluntarily before the ICC”—he nevertheless remained hopeful that the report, shared by clandestine internet connections, would have an impact: “I suspect that the only thing [the DPRK leaders] respect and fear is the spreading of information about the truth in their country. And especially the risk that this information will get into the hands of the local population. … In the upshot, the truth will out. Truth is a great cleansing agent. North Korea must be opened to the truth. I hope, now that the COI report has been translated into the Korean language, it will become increasingly available to the citizens of DPRK.” The Guardian has collated ten highlights from the Kirby AMA.
The federal budget has been criticised for cutting $15 million from legal aid. According to the Law Council of Australia, “In Victoria alone cuts in grants of legal aid over the last three years mean that an additional 11,000 people will confront the legal system without legal aid and without the means to pay for legal representation themselves”, and the new cuts will exacerbate the problem. Law Institute of Victoria president Geoff Bowyer said, “Vulnerable Victorians will be even worse off with this cut. … Denying access to justice is to deny a basic human right to Victorians. It is a disgrace.” The budget also cut another $6 million from community legal centres. Community Law Australia chair Liana Buchanan said, “Having to close outreach offices and stop providing family violence support lawyers at court are just some of the actions centres will have to take because of these cuts.” The Attorney-General has previously stated that public funding for legal services should focus on direct assistance, rather than policy and law reform advocacy; however, a draft Productivity Commission report on Access to Justice last month found that “advocacy should be a core activity of LACs and CLCs” because addressing problems at a systemic level is more cost effective than handling individual disputes.
Two Melbourne men have avoided a recorded conviction for an assault, despite inflicting a fractured skull, brain haemorrrhaging and hearing loss on their victim. After seeing a man punch a woman, they followed him down the road and took vigilante action. Magistrate Kate Hawkins took into account their remorse, and the circumstances of the attack. She said “it’s desirable to encourage young men to come to the aid of women who are being assaulted by men in the street”, but their “great error of judgment was taking the law into your own hands.” The men were placed on adjourned undertakings (commonly called good behaviour bonds) with conditions to attend positive lifestyle and anger management courses. According to Sentencing Advisory Council statistics, this is an exceptionally rare outcome for a charge of causing serious injury recklessly, which carries up to 15 years jail. The third man was earlier sentenced to a community correction order for his assault on the woman.
The Royal Commission into the Home Insulation Program remained controversial this week, as former prime minister Kevin Rudd was called to give evidence. Although criminal prosecutions held the installation companies responsible for workers’ deaths, and the risk of fire fell under the program, the Abbott Government nevertheless established a royal commission to investigate whether the processes of government contributed to the problems. Controversially, cabinet documents were handed to the Commission, despite a convention that they be kept confidential for thirty years. The Government then tried to use cabinet confidentiality to censor Kevin Rudd’s evidence. The Australian’s legal affairs editor, Chris Merritt, suggests this marks a “turning point when some of the fundamental planks of the Australian system of government started to crumble.” He argues that the people delivered their verdict by electing a new government, and that is how Westminster accountability ought to work: “The existence of this royal commission implies that the Westminster method of accountability does not go far enough. The decision to call this inquiry creates a new and dangersous system in which all future governments can be held accountable not just to parliament and the people but to their successors in the executive.”
The Commonwealth budget appears to be using deep cuts to health and education funding to push for a renegotiation of federal responsibilities. “Arguing that the states run schools and hospitals and should therefore have full autonomy, the budget says the cuts will ‘generate momentum’ for funding reforms in health and education, which will be devised by the white papers the government has commissioned into tax reform and federation.” The Victorian and NSW governments have indicated their opposition to the changes. In an interview on 7.30, Treasurer Joe Hockey was asked, “Are you starving the states so they beg you, effectively, to raise the GST?” He replied, “That’s up to them, they are responsible for schools and hospitals.” Under current arrangements, revenue raised by the GST is provided to the States as untied funding, to address vertical fiscal imbalance. The recent Commission of Audit recommended significant changes to the federal structure, including the restoration of States’ income taxing power, which was effectively removed by inconsistent Commonwealth legislation during World War II.