Govt ignores VLRC recommendation on wills

In October last year, the Victorian Law Reform Commission’s final report on Succession Laws was tabled in parliament. Its recommendations aimed to clarify and simplify the rules relating to making, executing and challenging wills and inheritances. The Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, currently before Parliament, is the Government’s legislative response. However, the Herald Sun reports that the Victorian Government has rejected one of the VLRC’s key recommendations: “Parents, carers and adult children of the deceased would be barred from contesting wills under radical reforms to Victorian succession laws”, unless the claimants were “wholly or partly dependent on the deceased at the time of death. The dependency reform comes despite strong objection by the Law Reform Commission.” The Government says the VLRC’s preferred approach does not adequately protect “the principle that a deceased’s person’s will ought to be respected unless it is shown they have failed in their duty to provide for someone they should have made provision for”.

Labor will refer medical marijuana legalisation to VLRC

Opposition Leader Daniel Andrews has promised to ask the VLRC to investigate the legalisation of marijuana, but said the terms of reference would be limited to its use in medical treatment. The issue came to prominence this year when it was revealed an 8-year-old girl and a 3-year-old boy were being administered cannabis oil by their families, and opinion polling shows widespread public support for medical legalisation. A peer-reviewed article in the Australian Medical Journal, responding to political debate in NSW, stated, “The benefits of cannabinoid pharmacotherapy can be substantial. The risks are generally modest and must be weighed against those of not treating the symptoms or of alternative treatments.” However, the Australian Medical Association and the Victorian Government are calling for more clinical trials before any legal change is made.

Victoria to legalise “sexting”, ban “revenge porn”

The Victorian Government has introduced a bill to address teenage “sexting”, or the sharing of “intimate images”. Concerns had been raised that photos of legal sexual activity between teenagers could result in them being placed on the sex offenders register. Under the changes, where the age gap between the participants is less than 2 years, a photo of a person under the age of 18 will no longer be treated as child pornography. However, it will now be an offence to distribute or threaten to distribute the image without consent. Those offences will also apply to adult “revenge porn”. The legislation is a response to a bipartisan parliamentary Law Reform Committee report, which found that “sexting is being used by adults to intimidate, humiliate and manipulate others”. The chair of the committee, Clem Newton-Brown, explained the bill on radio this week.

Book to be pulped after mistaken identity defamation

A book on a corruption scandal in New South Wales has been withdrawn from bookshelves, and is likely to be pulped—because it accused the wrong “Chris Brown” of corruption. The Chris Brown who was mistakenly identified is suing for defamation. Crikey reported that one Melbourne bookshop had removed the book from shelves, but when their journalist enquired about it, “the extremely helpful staff thought the store must be in the process of re-stocking and fetched the book out of a box behind the counter and handed it straight to [me].” Under the Defamation Act 2005 (Vic), bookshops are protected by the defence of innocent dissemination if they inadvertently distribute defamatory material; however, that only applies if they “neither knew, nor ought reasonably to have known, that the matter was defamatory”. Continuing to sell the book after it has been recalled could expose the bookshop to liability.

Sex offender registration changes go beyond VLRC

Police Minister Kim Wells has revealed the government’s response to a 2012 VLRC report on sex offender registration. The new legislation would “allow police to share sex offender details with the family of a child that has had contact with an offender”, implementing recommendations 57 and 58. However, it would also introduce “new reporting obligations for when they travel, stricter time frames for notifying police of changes in their circumstances, and harsher penalties of up to five years’ jail for failing to meet their obligations”, which go beyond the VLRC’s suggestions.

Mandatory jail opens bidding in law-and-order auction

Premier Denis Napthine has proposed new legislation to crack down on “coward punches” (formerly known as “king hits”) by introducing a 10-year mandatory minimum jail term for the offence. According to the Premier, “Our expectation is that this legislation sends such a strong message that we don’t have people doing these cowards punches in the first place.” However, in a 2008 research report, the Victorian Sentencing Advisory Council warned against mandatory sentencing, noting: “Deterrence presupposes that would-be offenders are rational actors who are capable of weighing up, and actually do weigh up, the costs and benefits of a particular course of conduct. Crime, however, is often impulsive and lacking such judicious forethought.” Chris Berg of the Institute of Public Affairs argues that judges need flexibility to deliver justice: “Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice. … This principle is too important to abandon just because an election is coming up.” The Victorian proposal is harsher than the 8-year mandatory sentence introduced in NSW earlier this year, which suggests the start of a “law-and-order auction” before November’s election.



UK court upholds “friendly discussion” as valid ADR

A justice of the UK High Court recently held that “friendly discussion” is a legitimate form of alternative dispute resolution. The parties had a contract requiring them to “first seek to resolve [a] dispute or claim by friendly discussion”; if it was unsuccessful, they would move to binding arbitration. Asked to rule on whether the clause was valid, Teare J said: “There is obvious commercial sense in such a dispute resolution clause. Arbitration can be expensive and time consuming. It is far better if it can be avoided by friendly discussions to resolve a claim. …[T]here is a public interest in giving effect to dispute resolution clauses which require the parties to seek to resolve disputes before engaging in arbitration or litigation.” The NSW Court of Appeal has previously found that an agreement to undertake genuine and good faith negotiations” to resolve disputes was valid.

High Court excludes “body mapping” evidence as unscientific

In June, two academics from the Sydney University claimed that “too much weak, speculative and unreliable opinion is allowed into criminal proceedings”. They said Honeysett v The Queen was “an opportunity for the High Court to provide critically important guidance on the admissibility of expert opinion evidence in criminal proceedings under the now (almost) Uniform Evidence Law (‘UEL’)”. The High Court handed down its ruling this week. Under the UEL (which includes the Evidence Act 2008 (Vic)), expert opinion is admissible as evidence as long as it is based on specialised knowledge. In Honeysett, a professor of anatomy compared CCTV video to photos of the accused. The High Court ruled this so-called “body mapping” was not based on expertise: “his conclusion that Offender One and the appellant each have oval shaped heads … was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images”. This was a comparison the jury could make for themselves. Furthermore, presenting “body mapping” as expert evidence could mislead the jury: “the use of technical terms … gave the unwarranted appearance of science to the prosecution case” and was unfair to the defendant. The High Court ordered a new trial.

HELP changes may be costly for future women lawyers

Research by Professor Bruce Chapman suggests richer graduates would pay about $30,000 less for their degrees under proposed changes to the HELP scheme, and “[w]omen who take time off work to have children would be among the hardest hit.” Responding to this criticism, Education Minister Christopher Pyne observed that “women are well-represented amongst the teaching and nursing students. They will not be able to earn the high incomes that say dentists or lawyers will earn, and vice chancellors in framing their fees, their fee structure, will take that into account.” In fact, women are well-represented amongst law students, too: “61.4% of all law graduates are female.” However, the most recent Graduate Careers Australia report shows that female law graduates immediately face a gender pay gap, and they are far more likely to leave the profession within 10 years. As a result, if above-inflation interest is applied to HELP debts, women may pay significantly more for their law degrees than men. However, the proposed changes must first be passed by the Senate.

Abbott abandons 18C change; racial insult ban stays

It will remain illegal to “offend, insult, humiliate or intimidate” people on the basis of their “race, colour, or national or ethnic origin”, after the federal government abandoned its election promise to amend section 18C of the Racial Discrimination Act 1975 (Cth). Prime Minister Tony Abbott made a “leadership call” and overruled Attorney-General George Brandis, who had been pushing for the amendment. The decision was made after a strong public backlash. It was revealed last week that more than 75% of submissions in the consultation process were opposed to the plan. However, not everyone is pleased by the backdown. The Prime Minister phoned Andrew Bolt to tell him of the decision before it was announced publicly, and Bolt is not pleased. He has previously breached section 18C in writing about light-skinned Aboriginal people, and now complains that he will be unable to speak his mind about “Muslims” and “people from the Middle East”.