1×02: Idle Persons and Incorrigible Rogues

In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”

1×01: Mr Trumble goes to Washington

In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”

High Court battles prolix lawyers with new typographic rules

For many years, the High Court has had rules about formatting documents in Rule 1.08.01, including requirements that documents are printed single-sided A4 paper, with 2.5cm margins. The High Court Registry is notoriously strict in applying these rules.

Commencing on 1 July 2016, the High Court introduced new rules for special leave applications — including a tight limit on the length of the documents filed. Under the new Rule 41.01.3, “An application: (a) must not exceed 12 pages; and (b) must be typed in at least 12 point (Times New Roman or equivalent font size) with line spacing of 1.5 lines.”

Matthew Butterick is the author of Typography for Lawyers, a book explaining the principles of presenting attractive and legible text in legal contexts. He explains why these court rules exist: “Con­sis­tency of typog­ra­phy in court fil­ings helps ensure fair­ness to the par­ties. For instance, in juris­dic­tions that use page lim­its, if law­yer A sets his briefs at 12 point and law­yer B sets hers at 10 point, then law­yer B will get more words per page. Court rules about typog­ra­phy pre­vent abuse of these lim­its.”

However, he notes that “courts often require text to be set at 12 point—and some­times larger”, but that this does not guarantee uniformity because “the point-size sys­tem is not absolute—dif­fer­ent fonts set at the same point size won’t nec­es­sar­ily appear the same on the page”.

Perhaps Australian lawyers have been reading Broderick’s work. Richard Ackland reports that “some briefs have discovered a font that looks like 12 point, but in reality is closer to 10, which allows more words and argumentation to be crammed into the 12 pages at the required line spacing of 1.5.  This is why innovative thinkers at the bar are paid big bucks.”

This tension between lawyers and judges over the length of documents has a long history. In 1596, the UK Court of Chancery complained about a solicitor who filed documents “amount[ing] to six score sheets of paper [ie, 120 pages], and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper”. As a punishment, they ordered that a hole be cut in the bundle of papers so that it could be worn around the lawyer’s neck while he was paraded “bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and [shown] at the bar of every of the three Courts within the Hall” — in addition to paying a fine and the defendant’s costs.

We are yet to see how the High Court will respond to counsel who adopt creative interpretations of Rule 41.01.3.

New VCAT fee structure adds Corporate and Concession rates

The Victorian Civil and Administrative Tribunal (VCAT) was established as a low-cost alternative to the courts for resolving civil disputes, but in recent years its fee increases have been criticised for undermining that mission. In 2013, fees for consumer cases increased from $39 to $132 and the number of applications fell by 15 per cent. Gerard Brody of the Consumer Law Action Centre said, “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 Andrews Government conducted a review of the tribunal’s fee structure to ensure its resources were allocated as effectively as possible, taking into account the applicant’s capacity to pay. The result is a new system providing for Concession, Standard and Corporate fee rates, which commenced on 1 July 2016.

At the higher end of the scale, a new Corporate fee rate has been established, which applies to government agencies and companies with a turnover in excess of $200,000 per year. The Victorian Government highlighted that “the corporate fee to challenge the refusal of a planning permit for a development with a value of between $15 million and $50 million will increase from $2,086 to $2,328, while the concession fee to challenge the grant of such a permit will now be $150.”

The Standard rate (for individuals and small businesses) is fixed at 70 per cent of the Corporate rate. For most residential tenancy matters, the Standard fee is $61.50, and there is no fee for bond disputes. The new fee structure also includes a sliding scale based on the value of the claim; for goods and services, the Standard fee ranges from $61.50 for a claim under $3000, to $1571 for a claim over $5 million.

In order to address access to justice for those least able to pay, a new Concession rate of fees has been established. Holders of a federal Health Care Card will be eligible for this category, with no application fee for residential tenancy disputes, or for goods and services claims worth up to $15,000. They will also benefit from a cap of $150 on any fee they are required to pay. The option of applying for a fee waiver in exceptional circumstances will remain.

The review process included public consultation, and the Government appears to have taken into account some of the specific suggestions made by lobby groups on behalf of low-income claimants. For example, both the Victorian Council of Social Services and the Consumer Action Law Centre argued that $10,000 was too low a threshold for small claims — the new fee structure removes application and daily hearing fees for Concession holders for claims up to $15,000. However, their proposals that there should be no fee for claims up to $100,000 (VCOSS) or for any claim regardless of value (CALC) were not accepted.

Police Minister steps down, highlighting vicarious trauma

Victorian Police and Corrections Minister Wade Noonan has stepped down from his role for three months. He said he needs a break from the job because of the psychological impact it has had on him. He explained, “It has been difficult to cope with the constant exposure to details of unspeakable crimes and traumatic events that are an everyday part of my role and the accumulation of these experiences has taken an unexpected toll.”

The issue of the exposure of people involved in the legal process to gruesome details of crimes has also been raised recently as a result of the sentencing of Matthew Graham, a 22-year-old Melbourne man who was responsible for websites sharing photos and video of the sexual abuse, torture and killing of children.

The prosecutor asked the County Court judge to view some of the worst videos: “It is with a great deal of regret that I urge your honour to view the material. Seeing it brings it home in a much more realistic and tangible way. It is probably one of the worst things you could see.” In April last year, the County Court recognised the psychological harm caused to judges and court staff who are required to observe traumatic evidence, and engaged five psychologists and psychiatrists to build judicial resilience.

Other participants in the system can also be affected. For instance, the Victorian Juries Commissioner recognises the potential for vicarious trauma, and after the trial jurors can access psychological services. Adrian Lowe, who spent four years reporting on crimes for The Age, said he asked to be assigned to different duties because he was being affected by the work, but that he still suffers the consequences: “It has been almost four years since I left the court round. The nightmares, flashbacks and visions have continued, fortunately with less frequency as the years pass.”

The issue can have an impact on the effectiveness and fairness of the legal system. In January, the ABC’s Law Report looked at how interpreters are affected by translating the details of evidence. A survey of 271 qualified interpreters found that “a quarter of respondents … said that they continued to feel traumatised for some period after and that they would choose to avoid those types of assignment in the future”. This can mean that it is hard to find appropriately qualified interpreters to deal with traumatic cases.

Charter Review calls for tougher enforcement of rights

The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.

The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”

One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”

The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers[] just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.

However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”

The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.

It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities

The Victorian Government has not yet responded to the recommendations.

VLA launches Independent Mental Health Advocacy

Victoria Legal Aid has launched a new service called Independent Mental Health Advocacy (IMHA). The new body is funded by the Department of Health and Human Services, and will provide assistance to people in negotiating the mental health system.

The Mental Health Act 2014 (Vic) was passed last year, and introduced a human rights-based approach to mental health services in Victoria. One major reform was the establishment of the Mental Health Tribunal, which oversees the assessment of people’s mental health and make compulsory treatment orders where necessary. Its decisions are reviewable by VCAT’s Human Rights List.

The new IMHA service will help people who are are subject to a compulsory order, who might be subject to one in future, or who have recently been discharged. It does not provide medical or legal advice, but helps people understand their rights and assists them in communicating their views to medical practitioners and agencies.

Where specialist legal advice or representation is required, IMHA will refer people to appropriate services, including Victoria Legal Aid.


Online form simplifies family violence intervention order process

On ABC’s Law Report this week, staff at the Neighbourhood Justice Centre discuss its new online application process for family violence intervention orders.

The standard application form for an intervention order in the Magistrates’ Court is 12 pages long and requires some legal knowledge to complete correctly. The NJC’s Louise Bassett said, “I’ve got to point out, I’ve got a law degree and I’m in the system, and when I first encountered this I didn’t know what to tick on the front page.”

The new form is interactive, so it reduces confusion by only including questions that are relevant to the applicant. It guides the user through the process, and uses plain English and examples to explain the information that is requested. It also provides security advice and contact information for relevant community organisations.

Magistrate David Fanning says the information generated by the form is more useful in court: “Well, the information that it generates for me when I’m looking at the matter is that it highlights risks and high risk. So therefore, a busy court, as all courts are, having that there straight in front of me makes it readily available. … [I]t’s both a better [time] economy and it also brings to the forefront immediately the level of risk.”

The new form is currently available for residents of the City of Yarra for a six month trial period, after which it is expected to be expanded to other areas.

US non-profit organisation sued for re-publishing the law

Public.Resource.Org is a nonprofit organisation that is attempting to digitise and publish copies of all public domain government records in the United States. Its owner, Carl Malamud, believes “the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves.”

The State of Georgia is suing Malamud for publishing a copy of the Official Code of Georgia Annotated (OCGA), claiming it is a breach of the government’s copyright. Its statement of claim accuses Malamud of a “strategy of terrorism” by publishing copies of the law. Georgia does not publish a copy of the law itself, and instead refers its citizens to for-profit law publisher LexisNexis.

On the government side of the argument, the formatting and annotations of the OCGA may be subject to copyright. However, Malamud argues that because Georgia has designated the annotated version of the law as the official version, they must be in the public domain.

Many of the annotations in the OCGA (such as the history of amendments to a section) are a standard feature of the official versions of Australian laws. The Commonwealth and Victorian governments provide free PDF copies of all laws and regulations, and also allow groups such as AustLII and Jade to republish the documents. Jade adds additional annotations and owns the copyright to those.

Reforming Chief Judge Rozenes resigns

Chief Judge Michael Rozenes has resigned from the County Court due to illness, after 13 years of service. Attorney-General Martin Pakula said, “Michael brought a warmth and generosity to the office of Chief Judge and will be sorely missed by all who worked with him. His considerable intellect and willingness to constantly improve and innovate have made the County Court a modern, progressive and more responsive institution.”

Rozenes oversaw the introduction of a number of specialist divisions and lists in the County Court, aimed at making the court more accessible to people. For example, he oversaw the adoption of the Koori Court in Melbourne after a successful pilot program in Latrobe Valley. He also created the Sexual Offences List to ensure “special attention” was given to the needs of victims and accused persons in such cases.

Other initiatives included the provision training and counselling for judges to deal with stress and trauma, and the introduction of electronic filing in civil cases in 2003 and criminal cases in 2015.