Bananas should not be too bendy. Diabetics are banned from driving. Eggs cannot be sold by the dozen. Quiz: crazy European Union law, or made up law?
The Victorian State election is still four days away, but more than 500,000 people have already voted. The Victorian Electoral Commission says a surge in postal and early voting it is possible a quarter of eligible voters have cast their ballot before election day. “Convenience voting” is designed to improve democratic participation by ensuring citizens aren’t prevented from voting by illness, work commitments or travel. However, while convenience voting has rapidly increased over the last decade, VEC statistics show voter participation hasn’t improved. The University of Queensland’s Graeme Orr is concerned that this trend towards convenience voting is changing our democratic culture: “[T]here is a baby and bathwater dimension to the relationship between convenience voting and the role of polling day. If delivering convenience voting becomes our main goal, polling day will be diluted. … Polling in person on election day is more than an empty ritual; it may be a richer form of participation. There is an important distinction—both symbolic and real—between polling day as a communal event, and the elongated process by which individuals vote over many days or weeks, ensconced in their own homes or pre-polling in electoral offices.” Indeed, early voters will not enjoy a “democracy sausage”—supporting schools and community groups—as part of their voting experience. In addition, convenience voting may have an impact on the outcome of elections, as votes are case before the parties have fully outlined their positions on key issues. (Teachers: the current issue of the AltLJ includes classroom activities based on Orr’s article.)
Protests have again erupted across the US, after a grand jury decided not to indict a white police officer over the shooting of an unarmed black man, Mike Brown, in Ferguson, Missouri. The grand jury process in Missouri requires 9 of 12 jurors to agree there is “probable cause” to indict the accused. This is similar to a committal in Victoria, in which a magistrate determines whether a prima facie case exists prior to the preparation of an indictment. Critics of the US grand jury system point out that they almost always result in prosecution—except when the accused is a police officer. Historically, Victoria had a very different grand jury system. Instead of weeding out weak cases, it was intended to ensure prosecutions could go ahead. Indictable prosecutions were brought in the name of the Attorney-General—a politician. To ensure that political corruption did not prevent prosecutions, private citizens could call for a grand jury of “not less than twenty-three men” to decide if the accused should be committed for trial. It was used 10 times before the independent DPP was established in 1983, removing the Attorney-General and the risk of political corruption from the process. The Victorian grand jury process was then effectively obsolete. Nevertheless, conspiracy theorist Brian Shaw was declared a vexatious litigant after unsuccessfully filing applications to summon more than 40 grand juries between 2001 and 2007. The grand jury process was then abolished by the Criminal Procedure Act 2009.
In 1988, two NSW teenagers were sentenced to life imprisonment for rape and murder. At the time, they could apply for release after 10 years. However, the NSW Government repeatedly changed the law to ensure they were “cemented in jail and were never to be released”, in the words of then Premier Bob Carr. The Human Rights Law Centre took their case to the United Nations Human Rights Committee, making a number of arguments about the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Their three strongest arguments were: First, that “the imposition of a life sentence without the possibility of parole in respect of a juvenile offender is incompatible” with Article 10, paragraph 3, which states: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Second, that “the imposition of a life sentence [without parole] on a juvenile constitutes cruel, inhuman and/or degrading punishment” contrary to Article 7. And third, that sentencing the teenagers to an adult sentence without giving them an opportunity to show their rehabilitation was a breach of Article 24, which requires protection of children. The Committee agreed with these arguments at paragraph 7.7. The Australian Government now has 180 days to respond to the Committee’s findings. Daniel Webb of the HRLC argues that response needs to include amendment of the NSW sentencing law.
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”
The Australian Electoral Commission has announced that at the next federal election, NSW will lose a seat in the House of Representatives, and WA will gain one. Section 24 of the Constitution requires that “[t]he number of members chosen in the several States shall be in proportion to the respective numbers of their people”, with a minimum of five seats if the population is too low (such as in Tasmania). The AEC calculates the number of seats based on up-to-date statistics, and then holds public consultations on the fairest way to redraw the electoral boundaries.
Advocates for corporate social responsibility claim the law is making it hard for company leaders to balance broader social issues against shareholders’ financial interests. A former director of ASIC, the corporate regulator, Tony D’Alosio, told the Australian Financial Review, “There is a point at which directors could actually breach their duties if they flip over and take a social position on an issue.” Under the Corporations Act 2001 (Cth), it is an offence for a director to recklessly “fail to exercise their powers and discharge their duties … in good faith in the best interests of the corporation”, with a penalty of up to 5 years imprisonment. Leeora Black of the Australian Centre for Corporate Social Responsibility suggests this emphasis on the interests of the corporation makes it hard for directors to consider broader issues: “One of the directors I spoke to said, ‘I couldn’t possibly be socially responsible, I could go to jail if I’m socially responsible’.”
A NSW legal researcher is questioning whether Australian courtroom architecture is unfairly biased against the accused in criminal trials. In 2011, Professor David Tait wrote an article for the Chicago-Kent Law Review called Glass Cages in the Dock? Presenting the Defendant to the Jury, in which he considered the history of the dock—the area where the accused sits during a trial. In the US, the dock has been regarded by courts as inappropriate, in part because it may prejudice the jury by making the accused look guilty or even dangerous. In Australia, the dock has been maintained as a tradition inherited from England, but in 2007 a judge ruled that a perspex screen around the dock “materially diminish[ed] their right to the presumption of innocence” and ordered it be removed. However, in his article Tait observed there was “a lack of empirical evidence” to guide judges about how jurors would react to different dock arrangements. To solve this problem, Tait and his team at the University of Western Sydney set up an experiment—they ran the same mock trial before 100 juries: “The only difference in the cases, performed by actors, will be that he accused is either behind glass, in a traditional dock or at the bar table next to their lawyers.” The results of the experiment showed the accused’s seating arrangement may have a significant impact on the outcome of the case: “When the glass dock was used, 60 per cent of jurors delivered a ‘guilty’ verdict, compared to 47 per cent for the open dock and 36 per cent for the bar table.”
In a speech given to the Victorian Bar & Law Institute Joint Conference, Chief Justice Marilyn Warren has called for lessons to be learned from the inquisitorial legal systems of Europe: “It is an adversarial setting that we live and breathe every day. What we need to do is to find ways to dilute, vary and soften the impact of the adversarial setting. We might learn from the European experience where judges very much control the litigation. … If we learn from the European experience trials would be shorter and costs may be a fraction what they are now.” Her Honour argued that creativity and cooperation between the courts and the parties could yield significant benefits. Citing a dispute involving 1600 closely connected cases, she noted that the judge worked with the parties to develop a template for identifying issues. As a result, “his Honour was able to conduct a directions hearing for about 150 separate pieces of litigation in a single morning by 11:30am. Justice Judd was able to achieve this because of the approach he took… but also, importantly, because of the cooperation of the parties.”