The Victorian Law Reform Commission has released an issues paper on Medicinal Cannabis. The paper notes that the “terms of reference do not invite the Commission’s views on [the merits of] this policy”; instead, the Attorney-General asked it to consider how the policy could be implemented, and to ensure the expert advice of medical practitioners was taken into account. The two main questions it seeks to answer are “Who should be eligible to use cannabis for medicinal purposes?” and “How extensive should any Victorian medicinal cannabis scheme be?” The VLRC has asked the public for submissions in response by 30 April 2015, as it must report by 31 August. Meanwhile, the NSW government is scaling back their Law Reform Commission. It has not referred an issue for more than two years, and legal journalist Richard Ackland reports, “The position of chairman of the LRC has not been filled since James Wood retired over a year ago. No full-time commissioners have been appointed for over 12 months.” Furthermore, “All five of the existing LRC staff are seeking jobs elsewhere, and have been advised to do so by the department”; the Justice Department will instead take over the day-to-day administration of the LRC and allocate departmental staff when needed. Ackland suggests this may be an attempt by the executive to effectively abolish the NSWLRC as an independent body without parliament repealing the Law Reform Commission Act 1967 (NSW): “The commission, as a self-contained functioning entity, dedicated to independent investigation into legal policy issues, is finished.” (This approach has been taken before: when the Abbott Government’s attempt to abolish the Office of the Australian Information Commissioner was blocked in the Senate, it nevertheless redistributed staff to other agencies and closed the office, leaving the Commissioner to oversee the Freedom of Information system by himself, working on a laptop at home.)
Australia’s 22nd Prime Minister, Malcolm Fraser, died yesterday, aged 84. He was a complex politician whose allegiances shifted—some say he moved to the left, while he maintained Australian politics moved to the right. During his term in office, he was a divisive figure due to his role in the Dismissal of Gough Whitlam’s government (though the two men became friends later in life), and in retirement he became estranged from his Liberal Party—even campaigning for the Greens in 2013 due to his opposition to Tony Abbott’s refugee policies. He will be remembered as a “giant of Australian politics”, in part because he was 193cm tall, but mainly because the Fraser Government made lasting changes in a number of significant areas. In 1977, it conducted four referendums. Three passed: giving ACT and NT residents the right to vote in referendums, requiring federal judges to retire at 70 years old, and ensuring Senate casual vacancies would be filled by the same party. A plebiscite endorsing Advance Australia Fair as the national anthem also passed. On governance, Fraser established self-government for the Northern Territory, freedom of information laws, the Federal Court of Australia, and the Administrative Appeals Tribunal (which provided a model for VCAT). He cemented an official policy of multiculturalism, establishing the Australian Ethnic Affairs Council, the Institute of Multicultural Affairs and the Special Broadcasting Service (SBS), and welcoming the Vietnamese “boat people” as refugees. On human rights, Fraser established land rights for Aboriginal people in the Northern Territory, campaigned against apartheid in South Africa, and set up the Human Rights Commission—whose necessity and independence he defended until this year.
The Abbott Government is struggling to make laws, as the AFR‘s Laura Tingle observed: “Consider the government’s legislative record for 2015. It is not good. It has passed just one piece of legislation through both houses of parliament this year… On all its major reforms, its lack of political capital now renders the government impotent in the Parliament.” In part, this is because with 33 seats the Government does not have a majority in the Senate, and must find an extra six votes from Labor (29), the Greens (10) or a diverse group of minor party and independent senators (8). (The task has become more difficult with the resignations of Jacqui Lambie and Glen Lazarus from the Palmer United Party; they must now be courted separately.) The difficulty of negotiating bills through the Senate is highlighted by the Government’s proposed higher education reforms, which involve funding cuts to be made up through deregulation of student fees. The Education Minister, Christopher Pyne, adopted a tough negotiating stance, threatening to end a scientific research program if the bill wasn’t passed. This was rejected by most of the crossbench senators, and Pyne said he had “fixed it” by splitting the bill into two parts. The first, dealing with fee deregulation, was rejected yesterday, with only three crossbenchers supporting it. Pyne now says he will reintroduce it later, potentially creating a trigger for a double dissolution election. However, Professor Anne Twomey explains that the Government would be unlikely to pull that trigger because, while the they might be able to pass the deadlocked bill through a joint sitting under section 57, “it would be likely to make it even harder for the Coalition to negotiate [other] bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats.” A joint sitting to resolve a deadlock has only occurred once in Australia’s history.
Sir James Munby, President of the Family Division of the UK Royal Courts of Justice, has issued a scathing judgment criticising lawyers who ignore court limits on the length of pre-trial documents. In Re L (A Child), 989 pages of documents were filed, far more than the 350 page limit set by the Court rules. After reviewing the case the judge determined that only 51 pages of the documents were essential for the hearing. His Honour wrote: “The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats.” He threatened to impose “financial penalties” and “public condemnation in judgments in which they are named”. If they failed to work, “delinquents will be summoned to explain themselves in open court”. The courts’ frustration with excessively prolix lawyers has a long history, and fines and public shaming are some of the oldest punishments. In the 1596 case of Mylward v Weldon, a solicitor prepared a 120 page document that could have been reduced to 16 pages. As punishment, the English Court of Chancery ordered a prison warden to “cut a hole in the myddest” of the document and “put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward”, before parading him before all of the Courts at Westminster Hall while they were sitting. He was then to be imprisoned until he paid a substantial fine. Plus ça change…
Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.