LEGAL STUDIES UNITS 1–4
Legal update
Leanne Newson
Education Liaison Officer
Law Institute of Victoria
This update contains information relevant to Legal Studies Units 1–4. The material was current at the time of preparation but may have changed by the date of publication. More information on all matters is available by contacting Leanne Newson on (03) 96079468 (phone) or by email at .
Civil procedure
The Civil Procedure and Legal Profession Amendment Bill 2011 has passed both Houses of the Victorian Parliament and will come into force on Royal Assent. This legislation amends the Civil Procedure Act 2010 to repeal Chapter 3 and other provisions relating to pre-litigation requirements, which are to take effect on 1 July 2011. ‘Pre-litigation requirements’ currently contained in the Act provide that persons must take ‘reasonable steps’ including ‘(a) exchange of appropriate documents and (b) consideration of options for resolving the dispute without civil proceedings’ before initiating a claim with the court.
According to the Explanatory Memorandum of the Bill, the purpose of abolishing the pre-litigation requirements is that they:
would add unnecessarily to the costs of resolving a dispute and make it more difficult for disputants to access the courts. In particular, the pre-litigation requirements would provide an opportunity for disputants who were not prepared to negotiate in good faith to delay a settlement or decision and thereby prevent or delay disputants with legitimate claims from gaining access to the courts.
Family law
The draft Family Violence Bill proposes amendments to the Family Law Act 1975 to provide better protection for children and families at risk of violence. The amendments include:
· prioritising the safety of children
· changing the meaning of ‘family violence’ and ‘abuse’ to better capture harmful behaviour
· strengthening the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors
· ensuring courts have better access to evidence of family violence and abuse
· making it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.
This Bill will amend the Family Law Act to strengthen the role of family courts, advisers and parents in preventing harm to children while continuing to support the concept of shared parental responsibility and shared care where these are safe.
The consultation paper and draft Family Violence Bill are available from the Attorney-General’s Department website at http://www.ag.gov.au/familyviolencebill.
The draft Family Violence Bill proposes amendments to the Family Law Act 1975 to provide better protection for children and families at risk of violence.
Launch of Family Violence: A National Legal Response report
In November 2010, the federal and NSW Attorneys-General launched the report Family Violence: A National Legal Response. The report, co-authored by the Australian Law Reform Commission and the NSW Law Reform Commission, examines the interaction of Commonwealth, state and territory laws relating to family violence and child protection. It contains 187 recommendations for reform.
There are at least 26 different legal regimes around Australia that deal with family violence and this report makes a number of recommendations to improve practices and legal frameworks so that the legal responses to family violence are fair and just and the legal system is as seamless as possible. Perhaps one of the most important of the major reforms outlined in the report is the establishment of specialist Family Violence Courts in more jurisdictions. Currently, Victoria has four such courts.
The report makes a number of other recommendations to improve legal frameworks and practices across jurisdictions, including:
· amending the Family Law Act 1975 togive Children’s Courts the same power as Magistrates’ Courts
· national reforms to sexual assault laws that give victims greater protections in court
· nationally consistent child protection reforms
· corresponding jurisdictions giving all courts dealing with violence protection orders the ability to continue dealing with family matters on an interim basis
· improving the quality and use of evidence, to make it easier for victims to have their stories heard in court
· the further development of alternative dispute resolution.
The government will consider the law reform commissions’ recommendations in detail, and will discuss the report with all state and territory Attorneys-General.
The report can be found at: http://www.alrc.gov.au/publications/family-violence-national-legal-response-alrc-report-114.
Human rights
2011 Review of the Victorian Charter of Human Rights and Responsibilities
In response to concerns about the future of the Victorian Charter of Human Rights and Responsibilities following the change of government in Victoria in November 2010, the then Law Institute of Victoria President Steven Stevens wrote to the new Victorian Attorney-General, Robert Clark, in support of the Charter. He called on the Attorney-General to undertake a review of the Charter as mandated by Section 44 of the Act. In his letter, he indicated the Law Institute’s support of the appointment of an independent expert or experts, including at least one human rights expert, to the review panel.
The Victorian Charter of Human Rights and Responsibilities has been an important first step towards better protection and promotion of human rights in Victoria. The Law Institute considers that the Charter has generated a greater awareness of human rights within public bodies and the general community. The Charter has also facilitated the making of laws and decisions that are more sensitive and responsive to human rights concerns. With the Charter, Victorians have one ‘language’ that can be used to promote a consistent culture of care across the public sector.
UN review of Australia’s human rights performance
On 27 January 2011, Australia’s adherence to human rights was reviewed by the UN Human Rights Council and UN member states through the Universal Periodic Review process (UPR) in Geneva. The UPR is a process undertaken by the UN Human Rights Council, and involves a review of the human rights records of all 192 member states of the United Nations once every four years.
In preparation for the UPR, the Human Rights Council received short reports from the Australian Government, the Australian Human Rights Commission and from interested non-government organisations (NGOs) addressing key human rights issues and concerns and recommending improvements to Australia’s laws and policies. The Law Council of Australia contributed to this process by providing feedback on all of the reports submitted.
In anticipation of the review, a number of prominent countries submitted ‘advanced questions’ covering a range of issues to which Australia’s delegation responded. These included:
· the lack of a national Human Rights Act
· mandatory indefinite immigration detention, including the detention of many children
· inadequate legal protection against discrimination, including on the grounds of sexual orientation and gender identity
· the severe disadvantage and discrimination experienced by Indigenous Australians, including under the NT intervention
· the compliance of Australia’s counter-terrorism laws and practices with international human rights standards.
Following Australia’s examination on these and other issues, an outcome report will be prepared and adopted by the UN Human Rights Council in June 2011. This report will include recommendations for change, to which a response will be sought from the Australian Government.
Further information can be found at http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx.
Bail
The Bail Amendment Act 2010 amends the Bail Act 1977 and the Magistrates' Court Act 1989. It follows on from the Victorian Law Reform Commission's (VLRC) Review of the Bail Act: Final Report.
In its report, the VLRC made 157 recommendations for procedural, administrative and legislative changes to ensure the bail system functions simply, clearly and fairly. The Act responds to 40 recommendations.
The Bail Amendment Act aims to clarify aspects of current bail law, codify some existing practices, and promote efficiencies in the operation of the bail system. It also establishes a new legislative framework for the operation of the bail justice system.
The changes in the Act came into effect on 1 January 2011. The key changes are:
· a new provision for Aboriginal Australians
· a new provision for imposing bail conditions
· new procedures for administering surety conditions
· new provisions for further bail applications, applications for variation of bail conditions, and applications for revocation of bail
· clarification of the provision allowing appeals against grants of bail by the Director of Public Prosecutions
· reduction of the period for which bail justices may remand an adult accused person.
Facts sheets and a ready reckoner for the Bail Amendment Act 2010 are available on the Department of Justice website at http://www.justice.vic.gov.au/wps/wcm/connect/justlib/doj+internet/home/the+justice+system/justice+-+explaining+the+bail+amendment+act+2010+changes+-+(pdf).
Protecting Victoria's Vulnerable Children Inquiry
On 31 January 2011, the Victorian Government launched the Protecting Victoria's Vulnerable Children Inquiry to comprehensively investigate systemic problems in Victoria's child protection system and make recommendations to strengthen and improve the protection and support of vulnerable young Victorians. The inquiry panel is chaired by the Honourable Philip Cummins, together with Professor Dorothy Scott and Bill Scales. The panel will provide a report to the Minister for Community Services by 4 November 2011, which will be tabled in parliament.
Further information about the inquiry can be found at http://www.childprotectioninquiry.vic.gov.au.
New anti-social behaviour laws
The Victorian Government has introduced the Justice Legislation Amendment Bill 2011. It will come into force on February 2012, if not before.
This legislation focuses on increased penalties and new laws to deal with anti-social behaviour (defined as drunken, loutish and threatening behaviour) in and around licensed premises. The proposed amendments to the Liquor Control Reform Act 1998 and Summary Offences Act 1996, include increasing on-the-spot fines for drunk and disorderly behaviour and a new offence to deal with intoxicated persons hanging around licensed premises after being refused entry. They are designed to empower police and licensees to deter obnoxious, alcohol-fuelled behaviour.
The changes include:
· increasing the on-the-spot fine for drunk and disorderly behaviour from $478 to more than $590 for the first offence, and more than $1100 for a second or subsequent offence
· increasing the on-the-spot fine for revellers who fail to leave a licensed venue when drunk, violent or quarrelsome by 150 per cent, from $238.90 to $597.25
· a new offence to deal with drunks hanging around licensed premises after being refused entry or required to leave
· a new offence to deal with those attempting to re-enter a venue within 24 hours of being denied entry or required to leave a venue
· new powers for licensees and police officers to bar troublesome patrons from entering or remaining in a venue for a set period of time.
Under these reforms, police and venue operators will have greater power to deal with people who get themselves drunk and cause trouble on the streets or in licensed venues.
Unanimous decisions in High Court highest in 30 years
The University of NSW Gilbert + Tobin Centre of Public Law director Andrew Lynch and foundation director George Williams have released a study that reveals that of the 48 decisions handed down by the High Court in 2010, half were decided unanimously, with dissenting judgements in just nine cases. According to The Australian newspaper, the study ‘suggests that the high degree of unanimity on the court could be due to the leadership and management style of Chief Justice Robert French’. Andrew Lynch expressed surprise at the increase in unanimous decisions, stating that ‘our expectation was that on a court of seven judges, disagreement would soon reassert itself’.
The study found Justice Dyson Heydon to have the highest rate of dissenting judgements at 14.6 per cent.
AIC paper on non-disclosure of violence in Australian Indigenous communities
The Australian Institute of Criminology (AIC) has released a paper that explores some of the reasons for the high rates of non-disclosure of violence in Indigenous communities. It begins by examining reasons for non-disclosure in the broader Australian community before discussing how factors specific to Indigenous Australians influence individual decisions to disclose violence. As well as using Australian and international literature to build an understanding of why people choose not to disclose, the paper uses scenarios developed by the Australian Crime Commission from their work with Indigenous communities to illustrate the circumstances in which these choices are made. The paper concludes by considering ways of encouraging disclosure through services, training and education and community responses. It emphasises the need to locate these within broader efforts to address the cycles of intergenerational violence that can so heavily affect the lives of Indigenous Australians. Further information can be found at http://www.aic.gov.au/en/publications/current series/tandi/401-420/tandi405.aspx.
Sentencing Advisory Council review of maximum penalties
In March 2010, the then Attorney-General asked theSentencing Advisory Council to review the maximum penalties for about 250 serious criminal offences. The Sentencing Advisory Council has released a preliminary issues paper to facilitate discussion on the principles and purposes upon which a scale of maximum penalties for offences should be based. The Council is also seeking views on some of the issues raised in relation to the current Victorian penalty scale.
The paper is the first publication in the Council's major review of the maximum penalties for 250 of the most serious criminal offences in Victoria. These offences will be contained in the new Crimes Bill.
Further information about the review of maximum penalties can be found at http://www.sentencingcouncil.vic.gov.au/content/publications/maximum-penalties-principles-and-purposes-preliminary-issues-paper.
VCTA © Leanne Newson Published April 2011 page 1