Australia’s 22nd Prime Minister, Malcolm Fraser, died yesterday, aged 84. He was a complex politician whose allegiances shifted—some say he moved to the left, while he maintained Australian politics moved to the right. During his term in office, he was a divisive figure due to his role in the Dismissal of Gough Whitlam’s government (though the two men became friends later in life), and in retirement he became estranged from his Liberal Party—even campaigning for the Greens in 2013 due to his opposition to Tony Abbott’s refugee policies. He will be remembered as a “giant of Australian politics”, in part because he was 193cm tall, but mainly because the Fraser Government made lasting changes in a number of significant areas. In 1977, it conducted four referendums. Three passed: giving ACT and NT residents the right to vote in referendums, requiring federal judges to retire at 70 years old, and ensuring Senate casual vacancies would be filled by the same party. A plebiscite endorsing Advance Australia Fair as the national anthem also passed. On governance, Fraser established self-government for the Northern Territory, freedom of information laws, the Federal Court of Australia, and the Administrative Appeals Tribunal (which provided a model for VCAT). He cemented an official policy of multiculturalism, establishing the Australian Ethnic Affairs Council, the Institute of Multicultural Affairs and the Special Broadcasting Service (SBS), and welcoming the Vietnamese “boat people” as refugees. On human rights, Fraser established land rights for Aboriginal people in the Northern Territory, campaigned against apartheid in South Africa, and set up the Human Rights Commission—whose necessity and independence he defended until this year.
Higher education bill’s failure highlights bicameral challenge
The Abbott Government is struggling to make laws, as the AFR‘s Laura Tingle observed: “Consider the government’s legislative record for 2015. It is not good. It has passed just one piece of legislation through both houses of parliament this year… On all its major reforms, its lack of political capital now renders the government impotent in the Parliament.” In part, this is because with 33 seats the Government does not have a majority in the Senate, and must find an extra six votes from Labor (29), the Greens (10) or a diverse group of minor party and independent senators (8). (The task has become more difficult with the resignations of Jacqui Lambie and Glen Lazarus from the Palmer United Party; they must now be courted separately.) The difficulty of negotiating bills through the Senate is highlighted by the Government’s proposed higher education reforms, which involve funding cuts to be made up through deregulation of student fees. The Education Minister, Christopher Pyne, adopted a tough negotiating stance, threatening to end a scientific research program if the bill wasn’t passed. This was rejected by most of the crossbench senators, and Pyne said he had “fixed it” by splitting the bill into two parts. The first, dealing with fee deregulation, was rejected yesterday, with only three crossbenchers supporting it. Pyne now says he will reintroduce it later, potentially creating a trigger for a double dissolution election. However, Professor Anne Twomey explains that the Government would be unlikely to pull that trigger because, while the they might be able to pass the deadlocked bill through a joint sitting under section 57, “it would be likely to make it even harder for the Coalition to negotiate [other] bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats.” A joint sitting to resolve a deadlock has only occurred once in Australia’s history.
Judge threatens age-old punishment for wordy lawyers
Sir James Munby, President of the Family Division of the UK Royal Courts of Justice, has issued a scathing judgment criticising lawyers who ignore court limits on the length of pre-trial documents. In Re L (A Child), 989 pages of documents were filed, far more than the 350 page limit set by the Court rules. After reviewing the case the judge determined that only 51 pages of the documents were essential for the hearing. His Honour wrote: “The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats.” He threatened to impose “financial penalties” and “public condemnation in judgments in which they are named”. If they failed to work, “delinquents will be summoned to explain themselves in open court”. The courts’ frustration with excessively prolix lawyers has a long history, and fines and public shaming are some of the oldest punishments. In the 1596 case of Mylward v Weldon, a solicitor prepared a 120 page document that could have been reduced to 16 pages. As punishment, the English Court of Chancery ordered a prison warden to “cut a hole in the myddest” of the document and “put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward”, before parading him before all of the Courts at Westminster Hall while they were sitting. He was then to be imprisoned until he paid a substantial fine. Plus ça change…
Review to question police veto over diversion
Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.
Community support but still no legal right to die
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.
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.