Amended data retention law to pass with Opposition support

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.

Chance for students to experience the legal profession

If you are considering a career in law or politics and want to get some insight into what it’s really like, check out the LEAP into Law program at Victoria University on 9-10 April. You will work with academics, solicitors, barristers and possibly even judges; visit the Magistrates’ Court; learn how to examine a witness; debate your own suggestions for legal change; develop your negotiation skills; and find out about the broad range of careers available within the legal field. Places are limited, so register your interest through the contacts on their website.

Vic Question Time rules tightened to demand answers

Fulfilling an election promise, the Victorian Government has introduced new sessional orders in both the Legislative Assembly and the Legislative Council to improve the accountability of ministers to parliament. The most significant change is to end the charade of government MPs from asking Dorothy Dixer questions during Question Time; ministers will instead be given time to make a short statement. Time limits now apply to answers, non-government MPs are allowed to ask follow-up questions to clarify answers, and if the Speaker or President believes a minister failed to answer a question they can be required to provide a written answer by the following day. While proceedings under the new rules have still been rowdy, they have already been used to force a minister to provide an answer.

Government defies order to release East West Link documents

The debate over whether to build the East West Link tunnel was a key point of difference between the major parties before the 2014 election. In an effort to lock in its plan, the Napthine Government signed a contract as well as a controversial “side letter” promising compensation to the builder if the contract later proved to be illegal. Before the election, Labor promised it would “release the full business case, the full contract and the full side deal … and every Victorian will be able to see what’s gone on”. However, after winning power it decided to keep the documents secret while complex negotiations continue to cancel the project and minimise the cost to government. The Legislative Council passed a motion calling on the Government to honour its promise and release the documents, but Premier Daniel Andrews has refused to do so. This may result in a penalty against the Government’s leader in the upper house, Gavin Jennings: “He could be suspended from the chamber, possibly indefinitely.” This is one mechanism the legislature can use to scrutinise and hold the executive to account.

Homicide rate remains at historic low

The latest Australian Institute of Criminology report on homicide offences reveals that “Since 2001–02, there has been a downward trend in the homicide rate, decreasing from 1.8 per 100,000 to 1.1 in the 2010–11 and 2011–12 financial years.” Victoria had the lowest rate of any jurisdiction in recent years, with less than 1 homicide per 100,000 people. The report provides a detailed statistical breakdown of all homicides (defined as “murder and manslaughter, excluding driving causing death”) in Australia, according to location, cause of death, motive, characteristics of offenders and victims, and even time of day—Sunday evening is the most dangerous time of the week.

Court of Appeal guideline judgment urges CCOs over jail

In December last year, the Court of Appeal delivered its judgment in Boulton v R [2014] VSCA 342. This was the first ever guideline judgment delivered under Part 2AA of the Sentencing Act 1991 (Vic), which allows the Court of Appeal to go beyond the specific circumstances of a case and set out broad principles that should be applied in sentencing. This case considered when and how Community Correction Orders should be imposed. The Sentencing Advisory Council last year noted that CCOs were not being used as widely as parliament had expected, while sentences of imprisonment had increased. Significantly, the Court of Appeal unanimously held “the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her” and should be considered as an alternative to imprisonment. Rejecting an argument that jail should be the primary way to achieve the sentencing purpose of punishment, the Court said “a CCO … is punitive in nature, and is intended — and expected — to operative punitively for every day of its operation.”

Human rights law: essential or counter-cultural?

Writing in The Guardian UK’s Studying Law section, Rabah Kherbane says “every aspiring lawyer should study human rights law”. While it is “often wrongly assumed that human rights law is specifically for those who want careers in human rights”, he argues that “irrespective of your area of practice, human rights are relevant in domestic courts and domestic law”. However, Loyola University’s Professor William P Quigley warns that maintaining a commitment to human rights is hard work: “It pains me to say it, but justice is a counter-cultural value in our legal profession. … The actual message from law school and on throughout the entire legal career is that justice work, if done at all, is done in the margins or after the real legal work is done.” Studying human rights as a discrete subject is not required for admission to practice law in Australia.

New Justice Nettle stirs judicial gender balance debate

The High Court held a ceremonial sitting in Canberra yesterday to mark the appointment of Justice Geoffrey Nettle to the bench. He had formerly been a Justice of the Victorian Court of Appeal. The appointment was made after Justice Susan Crennan chose to retire five months ahead of the Constitutional age limit. While Justice Nettle is regarded as “one of the intellectual leaders of the profession” and “a non-political choice”, the shift in gender balance on the court has been questioned.  Writing in the Canberra Times, Professor Kim Rubenstein called for a review of how judicial appointments are made. Rubenstein argues the “backdoor system of affirming men in the top posts” undermines the High Court because we should “ensure that the diversity of our community is reflected in the High Court of Australia and gender is one of the meritorious matters that must be considered in the appointment process”. However, Attorney-General George Brandis wound back reforms that made the judicial appointment process more transparent, and would not commit to promoting diversity in the judiciary. There are now five men and two women on the High Court. Justice Kenneth Hayne will retire later this year.