The Australian Electoral Commission has announced that at the next federal election, NSW will lose a seat in the House of Representatives, and WA will gain one. Section 24 of the Constitution requires that “[t]he number of members chosen in the several States shall be in proportion to the respective numbers of their people”, with a minimum of five seats if the population is too low (such as in Tasmania). The AEC calculates the number of seats based on up-to-date statistics, and then holds public consultations on the fairest way to redraw the electoral boundaries.
Calls to make “corporate social responsibility” easier
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’.”
Is courtroom architecture unfairly biased?
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.”
Chief Justice calls for inquisitorial approach
In a speech given to the Victorian Bar & Law Institute Joint Conference, Chief Justice Marilyn Warren has called for lessons to be learned from the inquisitorial legal systems of Europe: “It is an adversarial setting that we live and breathe every day. What we need to do is to find ways to dilute, vary and soften the impact of the adversarial setting. We might learn from the European experience where judges very much control the litigation. … If we learn from the European experience trials would be shorter and costs may be a fraction what they are now.” Her Honour argued that creativity and cooperation between the courts and the parties could yield significant benefits. Citing a dispute involving 1600 closely connected cases, she noted that the judge worked with the parties to develop a template for identifying issues. As a result, “his Honour was able to conduct a directions hearing for about 150 separate pieces of litigation in a single morning by 11:30am. Justice Judd was able to achieve this because of the approach he took… but also, importantly, because of the cooperation of the parties.”
New video series explains human rights
Monash University’s Castan Centre for Human Rights has launched a new video series explaining human rights, called Have You Got That Right? The first two episodes, covering Human Rights and Marriage Equality, are available now, and future episodes will be released each fortnight.
Victorian election officially called
On Tuesday, Governor Alex Chernov issued the writs to formally call a Victorian election for Saturday, 29 November 2014. Unlike the Commonwealth, Victoria has fixed four-year parliamentary terms, with elections usually held on the last Saturday in November. Enrolment and voting is compulsory for all adult citizens who have lived in Victoria for more than one month. The deadline to enrol or update your details is 8:00pm on Tuesday, 11 November 2014. Students who are over 16 or 18 may be interested in working for the VEC on election day. Election-specific news coverage can be found at the Herald-Sun, The Age, and the ABC.
VLRC to consider victims of crime
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.
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.
Legal costs in County Court civil trials increased
As of 7 October 2014, an amendment to the County Court Civil Procedure Rules 2008 has increased the amount lawyers can charge for preparing and running cases. The County Court will no longer maintain its own scale of costs; instead, it will set rates at 80% of the Supreme Court scale. As barrister Paul Duggan explains, “Under the former County Court scale, a solicitor’s time was allowable at $277 per hour for attending a conference… That same solicitor’s time under the new County Court costs regime is now worth $296 per hour (ie 80 per cent of the Supreme Court rate of $370 per hour).” Another significant changes mean that costs will be determined on a new “standard basis” rather than the traditional “party-party” basis. This reflects a change made in the Supreme Court last year, and essentially means costs will be awarded not just for work that is “necessary”, but will also include work that is “reasonable”. Winners will recover more of their costs, which may be fairer—but the risk of paying more if you lose your case can nevertheless be a barrier for less wealthy plaintiffs.
High Court upholds guilt-by-association law
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.