The Victorian Attorney-General, Robert Clark, has asked the Victorian Law Reform Commission to “undertake a detailed inquiry into the role of victims of crime in the criminal trial process”. It is 20 years since Victim Impact Statements were introduced to give victims a more active role in the sentencing process, but Mr Clark says it is time for a “fundamental examination of the roles that victims should be able to have in the various stages of the criminal trial process, ranging from decisions about prosecutions through to sentencing and the making of compensation orders”. Although the legislature has finished sitting ahead of the November election, the executive continues to govern, allowing the Attorney-General to make this referral. A formal “caretaker period” begins at 6pm on Tuesday, 4 November, and after that point decisions that might affect the incoming government should not be made.
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
As of 7 October 2014, an amendment to the County Court Civil Procedure Rules 2008 has increased the amount lawyers can charge for preparing and running cases. The County Court will no longer maintain its own scale of costs; instead, it will set rates at 80% of the Supreme Court scale. As barrister Paul Duggan explains, “Under the former County Court scale, a solicitor’s time was allowable at $277 per hour for attending a conference… That same solicitor’s time under the new County Court costs regime is now worth $296 per hour (ie 80 per cent of the Supreme Court rate of $370 per hour).” Another significant changes mean that costs will be determined on a new “standard basis” rather than the traditional “party-party” basis. This reflects a change made in the Supreme Court last year, and essentially means costs will be awarded not just for work that is “necessary”, but will also include work that is “reasonable”. Winners will recover more of their costs, which may be fairer—but the risk of paying more if you lose your case can nevertheless be a barrier for less wealthy plaintiffs.
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.
The impact of VCAT fees on access to justice has been questioned, with statistics revealing a significant drop in the number of applications following fee increases. Last financial year, fees for consumer cases increased from $39 to $132, and the number of applications fell by 15%. Gerard Brody of the Consumer Law Action Centre said, “VCAT was created as an alternative to the mainstream court system [and] we are concerned that it remain a low-cost accessible tribunal, rather than becoming more court-like. If the claim is less than a couple of thousand dollars then you might think the fee, together with the time involved with having to go to VCAT, is not worth the effort.” The fee to lodge a planning dispute was increased from “$322 with no daily charges” to “$805, with daily fees of up to $1462″—and in the following year, the number of applications fell by 35%. VCAT said this was partly explained by changes to planning laws making it easier to amend planning permits without going to VCAT, but barrister Michelle Quigley QC warned, “it’s not just a one-off fee now—it’s a daily fee. Ordinary people just can’t afford it. It’s contrary to access to justice.”
ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.
A new Practice Note issued by the Supreme Court is intended to reduce delays between committal hearings and trial. Under the new guidelines, the Magistrates’ Court will be required to email documentation to the Supreme Court immediately after committal, and “where feasible, the [post-committal directions hearing] may be heard in the afternoon on the same day and otherwise will be heard at 9:30 am the following sitting day.” The new guidelines also require the parties to be ready at the first directions hearing to advise the Supreme Court about issues such as whether the accused is negotiating on a plea, the availability of witnesses, and the estimated length of the trial.