Late last year, the Commonwealth Government announced its plan to require telephone and internet service providers to retain certain data about their customers for two years. The Attorney-General appeared unable to explain what the law would cover, and protests and e-petitions were organised to oppose the plan. As a result, the Telecommunications (Intercepts and Access) Amendment (Data Retention) Bill 2014 was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for an inquiry. The committee received 204 submissions and conducted public hearings into the bill. The PJCIS includes both MHRs and Senators, from both Government and Opposition. While committees like this sometimes split along party lines and produce separate reports, in this case the PJCIS produced a unanimous report that recommended significant changes to the bill. Key changes include ensuring the scope of the data to be retained is defined in the legislation (and not delegated to the Attorney-General), and preventing the data being accessed in civil cases (such as copyright holders suing downloaders) without approval from the government. If the recommendations are adopted, the Government and the Opposition will be able to pass the legislation through the Senate despite the ongoing concerns of crossbenchers about breaches of privacy, the impact on journalists, and the lack of a warrant requirement to access the data.
At the election held on 29 November 2014, the Victorian electorate voted for a change of government. The new premier, Labor’s Daniel Andrews, immediately made significant structural changes to the executive. There will now be just nine government departments, each covering multiple portfolios. This is designed to improve efficiency, but the new “super-departments” might be difficult to manage. He also created two new portfolios within the Department of Premier and Cabinet. Martin Foley is Australia’s first Minister for Equality, focussing on LGBTI issues, and Fiona Richardson is the first Minister for the Prevention of Family Violence. These new portfolios suggest the government’s priorities for the next three years. However, they might face problems passing bills through the Legislative Council, where the balance of power is held by five “micro-party” MLCs with vastly different interests.
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.”
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.
The Victorian Law Reform Commission’s Jury Empanelment report was tabled in parliament on Wednesday. It made a number of recommendations, such as calling jurors by number only (not by name), ending the practice of jurors “parading” past the accused, and allowing up to 15 jurors to deliberate instead of additional jurors being “balloted off” at the end of the trial. The most significant recommendation was to reduce the number of peremptory challenges. The VLRC said that on current statistics, “For every man challenged, two women are challenged”, and as a result “women make up on average only 44 per cent of jurors on criminal trials”. Reducing the number of peremptory challenges would limit their impact on the gender representativeness of juries. The Government will now consider the recommendations before deciding whether to implement them.
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”.
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.
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”.
The Queensland Police Service has been accused of attempting to influence politics by releasing misleading crime statistics during a by-election campaign. The Police Commissioner claimed crime had fallen by 10% in the past year, but criminologist Professor Kerry Carrington claimed this was based on “cherry-picking”: “When you look at the whole database there’s only been a very minor drop of around 2 per cent.” Terry O’Gorman, chair of the Australian Council for Civil Liberties, said it was reminiscent of the corrupt Bjelke-Petersen Government: “During the ’70s and ’80s police used to regularly release crime statistics that were wrong in order to support the government of the day.” In Victoria, a similar scandal around the 2010 election led to the establishment of an independent Crime Statistics Agency, which will begin on 1 January 2015.