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”
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.)
The Victorian Attorney-General, Robert Clark, has asked the Victorian Law Reform Commission to “undertake a detailed inquiry into the role of victims of crime in the criminal trial process”. It is 20 years since Victim Impact Statements were introduced to give victims a more active role in the sentencing process, but Mr Clark says it is time for a “fundamental examination of the roles that victims should be able to have in the various stages of the criminal trial process, ranging from decisions about prosecutions through to sentencing and the making of compensation orders”. Although the legislature has finished sitting ahead of the November election, the executive continues to govern, allowing the Attorney-General to make this referral. A formal “caretaker period” begins at 6pm on Tuesday, 4 November, and after that point decisions that might affect the incoming government should not be made.
ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.
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.
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.
Researchers at the University of NSW will conduct a mock trial this week to investigate the practicality of allowing deaf people to serve as jurors with the assistance of Auslan interpreters in the court and during deliberations. Professor Sandra Hale noted that “other countries already have them”, and said the trial would “find out what impact having a deaf juror in the deliberation room and the trial will have on the rest of the participants”. The Australian deaf community has been lobbying and running test cases for the right to participate in jury service. In 2006, the NSW Law Reform Commission recommended that “people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone”; instead, a decision should be made on a case-by-case basis. The Victorian Law Reform Commission is currently conducting an inquiry into jury empanelment, but it observed that “Issues associated with the eligibility of [deaf] persons to serve on juries are beyond the scope of the Commission’s terms of reference.”
A Queensland judge has approved a series of questions to be asked of potential jurors in the trial of a man accused of murdering his wife. Before they are empanelled, they will be asked whether they lived near the family, whether they contributed to a fund to help find the killer, and whether they have ever expressed a view about the case. Queensland is the only State in which pre-trial questioning of jurors is allowed; however, as part of its inquiry into Jury Empanelment, the Victorian Law Reform Commission asked, “Should the judge or the parties have the ability to question prospective jurors to determine their impartiality in certain circumstances?” The VLRC’s final report was due on 31 May, and will be made public after it is tabled in parliament.