A podcast about law and legal issues
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In this episode, I’ll talk about an issue that has been bubbling away on the political agenda for a very long time now: should two people of the same sex have a legal right to be married in Australia? How have other countries come to legalise same sex marriage, and what is the current status of the debate in Australia?
Continue reading “1×03: The Antiquity of a Prejudice is No Reason for its Survival”
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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 Civil and Administrative Tribunal (VCAT) was established as a low-cost alternative to the courts for resolving civil disputes, but in recent years its fee increases have been criticised for undermining that mission. In 2013, fees for consumer cases increased from $39 to $132 and the number of applications fell by 15 per cent. Gerard Brody of the Consumer Law Action Centre said, “If the claim is less than a couple of thousand dollars then you might think the fee, together with the time involved with having to go to VCAT, is not worth the effort.”
The Andrews Government conducted a review of the tribunal’s fee structure to ensure its resources were allocated as effectively as possible, taking into account the applicant’s capacity to pay. The result is a new system providing for Concession, Standard and Corporate fee rates, which commenced on 1 July 2016.
At the higher end of the scale, a new Corporate fee rate has been established, which applies to government agencies and companies with a turnover in excess of $200,000 per year. The Victorian Government highlighted that “the corporate fee to challenge the refusal of a planning permit for a development with a value of between $15 million and $50 million will increase from $2,086 to $2,328, while the concession fee to challenge the grant of such a permit will now be $150.”
The Standard rate (for individuals and small businesses) is fixed at 70 per cent of the Corporate rate. For most residential tenancy matters, the Standard fee is $61.50, and there is no fee for bond disputes. The new fee structure also includes a sliding scale based on the value of the claim; for goods and services, the Standard fee ranges from $61.50 for a claim under $3000, to $1571 for a claim over $5 million.
In order to address access to justice for those least able to pay, a new Concession rate of fees has been established. Holders of a federal Health Care Card will be eligible for this category, with no application fee for residential tenancy disputes, or for goods and services claims worth up to $15,000. They will also benefit from a cap of $150 on any fee they are required to pay. The option of applying for a fee waiver in exceptional circumstances will remain.
The review process included public consultation, and the Government appears to have taken into account some of the specific suggestions made by lobby groups on behalf of low-income claimants. For example, both the Victorian Council of Social Services and the Consumer Action Law Centre argued that $10,000 was too low a threshold for small claims — the new fee structure removes application and daily hearing fees for Concession holders for claims up to $15,000. However, their proposals that there should be no fee for claims up to $100,000 (VCOSS) or for any claim regardless of value (CALC) were not accepted.
The Victorian Law Reform Commission has delivered its report on the legalisation of Medicinal Cannabis. In October, the report was tabled in Parliament by Attorney-General Martin Pakula. In December, the Government introduced the Access to Medicinal Cannabis Bill 2015 into parliament, with the intention of having the scheme in place by “early 2017”.
The proposed legislation would allow cannabis to be prescribed to “eligible patients”, which would initially be limited to people under the age of 18 who have epileptic seizures that do not respond to other treatments. This is narrower than the VLRC’s recommendations, which also included patients suffering from severe symptoms of multiple sclerosis, cancer, HIV and AIDS. However, the bill would establish an Independent Medical Advisory Committee to recommend other categories of eligible patient, which could be added by regulation.
Fulfilling an election promise, the Andrews Government asked the VLRC to investigate the best way to implement the legalisation of cannabis for medical purposes. In the issues paper that began the public consultation process, the VLRC noted that the decision to legalise the drug had already been made, and the “terms of reference do not invite the Commission’s views on [the merits of] this policy”.
The VLRC received 98 submissions from lawyers, doctors, academics, activists, community groups, and members of the general public — including one from the possibly pseudonymous Leaf van Amsterdam, who volunteered to be “a willing guinea pig” on the effects of medical marijuana.
The second reading debate on the bill will continue in the Legislative Assembly on Tuesday, 9 February.
The Council of Australian Governments (COAG) “supported the Northern Territory Chief Minister’s resolve for the NT to become Australia’s seventh state by 1 July 2018,” which would be the 40th anniversary of self-government in the NT.
Section 121 of the Constitution allows the Commonwealth Parliament to establish new States. It can impose conditions on the new State, including setting different rules for its representation in the Commonwealth Parliament. Given that the NT’s current population is under 250,000, this would likely be necessary. While Tasmania is over-represented compared to its population, the minimum of 5 lower-house seats required by section 24 only applies to Original States.
In 1998, a referendum was held within the Northern Territory. However, it achieved only 48.1% support, largely because the NT’s significant Indigenous population was concerned about the possible impact on their land rights without the protection of the Senate’s review functions. The NT has a unicameral parliament.
Professor Rolf Gerritson of Charles Darwin University said the same issue was likely to be a sticking point in the new campaign: “I don’t think the proposal has a snowball’s chance in hell of getting up. … I expect the land councils would oppose the repatriation of the Land Rights Act. They have in the past. I think that would be a huge stumbling block in negotiations for statehood.” However, his colleague Ken Parish proposes overcoming this obstacle by establishing an Indigenous advisory body that would have the power of veto over amendments to land rights legislation.
This would need to be included in a new constitution for the NT. At present, its legislative, judicial and executive powers are delegated by the Commonwealth under the Northern Territory (Self-Government) Act 1978 (Cth), but this is not truly a Constitution as it can be amended by an ordinary bill in the Commonwealth Parliament — as it was in 1997 to remove the NT’s power over euthanasia laws. The NT will hold a Constitutional Convention system to consult with the public over the development of a new constitution.
COAG was established in 1992 to allow for intergovernmental discussions about issues of national importance. Its members are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.
The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.
The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”
One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”
The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers[] just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.
However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”
The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.
It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities
The Victorian Government has not yet responded to the recommendations.
In 2013, the Commonwealth Sex Discrimination Act 1984 was amended to extend its protection to sexual orientation, gender identity, and intersex status. An exemption was granted to all Commonwealth, State and Territory laws for one year, so that they could be reviewed and amended to comply with the new protections. In 2014, the exemption for Commonwealth laws was removed after a review determined they complied. The deadline for State and Territory laws has been extended again until 31 July 2016. When the exemption ends, State and Territory laws that conflict with the new provisions of the Sex Discrimination Act will be invalid to the extent of the inconsistency, due to the operation of section 109 of the Constitution.
Ireland has become the first country in the world to legalise same-sex marriage through a Constitutional referendum: “With the final ballots counted, the vote was 62 percent in favor of legalizing same-sex marriage, and 38 percent opposed. The turnout was large — more than 60 percent of the 3.2 million eligible voters cast ballots, and only one district out of 43 voted the measure down.”
All parties in the Oireachtas (Irish parliament) support same-sex marriage. However, Article 41 the Irish Constitution “guarantees to protect the Family”, and “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Legal advice suggested this meant the common law definition of marriage “between one man and one woman” could not be altered. Though others disagreed, the government was reluctant to simply legislate and risk the law being declared invalid.
A Constitutional Convention was established, made up one-third by politicians and two-thirds by ordinary citizens, and it recommended amending the Constitution to require (not just allow) legislation to permit same-sex marriage. Ireland’s Constitution is entrenched by a referendum process requiring a simple majority of voters to approve amendments. The weekend’s proposal was to add a line to the document: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” Following the successful vote, the Oireachtas will pass the Marriage Bill 2015, and it is expected that the change will be implemented before Christmas this year.
Tony Abbott responded by saying no referendum would be held in Australia, because “I don’t think anyone is suggesting the constitution needs to be changed in this respect”. Professor George Williams agrees, pointing out that in 2013 our High Court “described marriage in gender-neutral terms as being ‘a consensual union formed between natural persons in accordance with legally prescribed requirements'” and therefore same-sex marriage would be valid under section 51(xxi) of the Constitution.
In November, crossbench senator David Leyonhjelm introduced the Freedom to Marry Bill 2014 as a private member. The major parties are now debating internally how they should respond, and a big factor is whether the issue should be left to a conscience vote. The Coalition requires its MPs to vote against same-sex marriage, but senior members (along with Tony Abbott’s sister) are pushing for freedom to vote as they choose. Labor MPs are free to vote either way, but Deputy Leader Tanya Plibersek is pushing to require them to vote for marriage between “all adult couples irrespective of sex”. This conscience vote debate will ultimately determine whether the Freedom to Marry Bill is passed.
The Victorian Government’s Review of the Charter of Human Rights and Responsibilities Act 1996 (Vic) has begun with a call for public submissions. Attorney-General Martin Pakula said, “We’re inviting all Victorians to play a role in shaping how their fundamental rights are upheld by Government into the future.” The Review has published a background brief and discussion paper to frame the discussion, and has requested even brief submissions. Meanwhile, in Queensland, independent MP Peter Wellington offered support for Labor’s minority government on condition that it would investigate introducing a statutory bill of rights modelled on the Victorian Charter. Although he has subsequently said this is a low priority, civil libertarians have begun to agitate for change. James Cook University’s Kate Galloway says she has changed her mind and now supports a bill of rights, in part because Queensland’s unicameral parliament provides fewer checks and balances on the government of the day. It is unlikely a similar debate will occur at the national level; in 2009, Tony Abbott argued, “Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.”
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.