New government, new portfolios

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.

Whitlam Government a rich case study for Legal Studies

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.

VLRC calls for reform to end gender bias on juries

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.

Govt ignores VLRC recommendation on wills

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”.

Victoria to legalise “sexting”, ban “revenge porn”

The Victorian Government has introduced a bill to address teenage “sexting”, or the sharing of “intimate images”. Concerns had been raised that photos of legal sexual activity between teenagers could result in them being placed on the sex offenders register. Under the changes, where the age gap between the participants is less than 2 years, a photo of a person under the age of 18 will no longer be treated as child pornography. However, it will now be an offence to distribute or threaten to distribute the image without consent. Those offences will also apply to adult “revenge porn”. The legislation is a response to a bipartisan parliamentary Law Reform Committee report, which found that “sexting is being used by adults to intimidate, humiliate and manipulate others”. The chair of the committee, Clem Newton-Brown, explained the bill on radio this week.

Sex offender registration changes go beyond VLRC

Police Minister Kim Wells has revealed the government’s response to a 2012 VLRC report on sex offender registration. The new legislation would “allow police to share sex offender details with the family of a child that has had contact with an offender”, implementing recommendations 57 and 58. However, it would also introduce “new reporting obligations for when they travel, stricter time frames for notifying police of changes in their circumstances, and harsher penalties of up to five years’ jail for failing to meet their obligations”, which go beyond the VLRC’s suggestions.

Mandatory jail opens bidding in law-and-order auction

Premier Denis Napthine has proposed new legislation to crack down on “coward punches” (formerly known as “king hits”) by introducing a 10-year mandatory minimum jail term for the offence. According to the Premier, “Our expectation is that this legislation sends such a strong message that we don’t have people doing these cowards punches in the first place.” However, in a 2008 research report, the Victorian Sentencing Advisory Council warned against mandatory sentencing, noting: “Deterrence presupposes that would-be offenders are rational actors who are capable of weighing up, and actually do weigh up, the costs and benefits of a particular course of conduct. Crime, however, is often impulsive and lacking such judicious forethought.” Chris Berg of the Institute of Public Affairs argues that judges need flexibility to deliver justice: “Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice. … This principle is too important to abandon just because an election is coming up.” The Victorian proposal is harsher than the 8-year mandatory sentence introduced in NSW earlier this year, which suggests the start of a “law-and-order auction” before November’s election.



HELP changes may be costly for future women lawyers

Research by Professor Bruce Chapman suggests richer graduates would pay about $30,000 less for their degrees under proposed changes to the HELP scheme, and “[w]omen who take time off work to have children would be among the hardest hit.” Responding to this criticism, Education Minister Christopher Pyne observed that “women are well-represented amongst the teaching and nursing students. They will not be able to earn the high incomes that say dentists or lawyers will earn, and vice chancellors in framing their fees, their fee structure, will take that into account.” In fact, women are well-represented amongst law students, too: “61.4% of all law graduates are female.” However, the most recent Graduate Careers Australia report shows that female law graduates immediately face a gender pay gap, and they are far more likely to leave the profession within 10 years. As a result, if above-inflation interest is applied to HELP debts, women may pay significantly more for their law degrees than men. However, the proposed changes must first be passed by the Senate.

Abbott abandons 18C change; racial insult ban stays

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”.

HIV-specific crime to be amended or repealed

Regardless who wins the next Victorian election, section 19A of the Crimes Act 1958 (Vic) will be on their legislative agenda. The provision makes it an offence to “intentionally causes another person to be infected with a very serious disease”. It was added in 1993 in response to community fears about an AIDS epidemic, and “very serious disease” is defined to only include one disease: HIV, which causes AIDS. Health experts say section 19A is counterproductive because it stigmatises people with HIV, discouraging them from seeking treatment. At the 20th International AIDS Conference, held in Melbourne earlier this month, the Victorian Health Minister, David Davis, announced the government’s intention to amend section 19A”. This was cautiously welcomed by delegates at the conference, though they still had concerns; the Victorian AIDS Council said: “We are concerned by … the possibility that section 19A could be converted into a general provision covering other infectious diseases. We believe that would be a step in the wrong direction.” Soon afterwards, the Shadow Health Minister, Gavin Jennings, promised to repeal the section altogether.