Education Liaison Officer Law Institute of Victoria

LEGAL STUDIES UNITS 1–4

Legal update

Leanne Newson

Education Liaison Officer
Law Institute of Victoria

This update contains information relevant to VCE 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 .

Double jeopardy

In November 2011 the Victorian Government introduced the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 to reform the double jeopardy law. The reforms could see new trials being ordered for a variety of reasons, including if new evidence arises that a person previously acquitted of a serious crime was in fact guilty and new trials in the case of fresh and compelling evidence. This legislation has passed both Houses and received Royal Assent. It will come into force by 1 July 2012.

Statutory minimum sentences for gross violence

In April 2011 Attorney-General Robert Clark requested advice from the Sentencing Advisory Council on a number of matters including the introduction of a statutory minimum penalty for the offences of intentionally causing serious injury and recklessly causing serious injury when either offence involves gross violence. This request follows an election commitment by the Coalition to introduce a four-year minimum jail term (that is, non-parole period) for adult offenders who engage in attacks involving gross violence. Also proposed were two-year minimum detention sentences for juvenile offenders aged 16 or 17.

The Sentencing Advisory Council released its report on 10 November 2011. The recommendations contained in the report include:

· creating two new offences, of intentionally and recklessly causing severe injury, which would attract the statutory minimum sentence

· applying those offences to circumstances where the offender:

- plans in advance to engage in an attack intending to cause severe injury

- causes severe injury in company with two or more others, where both the offender and at least two others cause severe injury or act in concert with one another to do so

- plans in advance to carry and use a weapon in an attack and uses the weapon to inflict severe injury, or

- continues to attack or cause injury to the victim after the victim is incapacitated.

· including the new offences among those for which juveniles are tried in adult courts

· referring to exceptional circumstances as ‘special reasons’, with a non-exclusive list of special reasons including:

- intellectual disability or cognitive impairment

- mental illness

- particular psychosocial immaturity and/or particular vulnerability in custody

- assistance by the accused to police or an undertaking to assist the Crown.

Legislation to establish the gross violence offences will be prepared for introduction into parliament this year.

The Law Institute of Victoria has urged the Victorian Government to rule out minimum detention sentences of two years for young offenders aged 16 or 17. ‘This type of sentence is more likely to drive young offenders into a life of crime than rehabilitate them’, Law Institute Acting President Michael Holcroft said in a media release dated 2 June 2011. ‘Mandatory penalties for youth flies in the face of the whole youth justice system which, quite rightly, focuses on rehabilitation’, he said. He also said that mandatory sentencing would lead to increased court delays and additional pressure on victims, as it would strongly discourage offenders from pleading guilty to any offence. In addition, mandatory sentencing does not distinguish between ‘intentionally’ and ‘recklessly’ causing serious injury.

In its submission to the Sentencing Advisory Council, the Law Institute outlined its objection to the government’s proposal to introduce mandatory minimum terms of imprisonment, for both adult and juvenile offenders. The submission stated that ‘mandatory sentencing regimes and the “one size fits all” approach to sentencing leads to unjust outcomes, as unequal offenders are sentenced to the same minimum sentence of imprisonment, or more’.

In order to allow time for consultation with all interested parties on the Sentencing Advisory Council’s recommendations relating to juvenile offenders, minimum sentences for juvenile offenders will not be included in the initial legislation.

VCAT major cases planning list to be reinstated

In September 2011 the Attorney-General Robert Clark announced that the Victorian Government will reinstate a major cases planning list at the Victorian Civil and Administrative Tribunal (VCAT). Funding provided by the previous government for a Major Cases List pilot program ceased earlier in 2011 and the pilot program closed to new cases in March that year. Assessment of the Major Cases List pilot program showed that it had enabled VCAT to achieve considerable success in reducing waiting times for major case matters. However, it is not reasonable to expect the Major Cases List to be funded by taxpayers on an ongoing basis. Accordingly, the government decided to reinstate the list on a user-pays, full-cost recovery basis. The user fees will be paid by developers (of housing projects) or other applicants seeking to have their case included in the Major Cases List. This in turn will reduce case numbers and free up resources in the general planning list, so that other cases can also be heard more quickly.

The purpose of the Major Cases List is to provide a fast-track decision; not to provide a fast-track guaranteed approval. All cases included on the Major Cases List will be decided on their merits and in accordance with the law, just as they would be if heard on the general planning list. The government has also decided to increase the threshold for residential developments to qualify for the Major Cases List from $5 million to $10 million. However, the threshold will remain at $5 million for industrial, commercial and other non-residential housing projects, so as to minimise delays in decisions on projects intended to support economic activity and ongoing job creation opportunities. Applicants wishing to have a case included on the Major Cases List will pay an initial fee of $3000 (excluding GST), together with a daily hearing fee of $3115 (excluding GST).

SARC report on the Victorian Charter of Human Rights and Responsibilities

The Final Report of the Review of the Victorian Charter of Human Rights and Responsibilities Act 2006, prepared by the Scrutiny of Acts and Regulations Commission (SARC), was tabled in the Victorian Parliament on 14 September 2011. The Charter Review Final Report can be downloaded from http://www.parliament.vic.gov.au/sarc/article/1446.

New OPP approach to family violence victims

The Director of Public Prosecutions (DPP), John Champion SC, has introduced measures to identify and respond to victims of family violence involved in serious criminal matters. As part of a new approach, the Office of Public Prosecutions (OPP) will earmark all criminal matters involving family violence to ensure that they are dealt with appropriately. Solicitors and prosecutors involved in such prosecutions will be expected to be familiar with a new Director's Family Violence Policy detailing a best-practice approach to family violence matters. The OPP's Witness Assistance Service will be notified of each family violence matter so that victims can be assisted by an OPP social worker.

The Director's Family Violence Policy, which adopts a broad definition of family violence as per the Family Violence Protection Act 2008, details the priorities and principles that prosecutors are expected to apply in family violence matters to ensure consistency and fairness.

The policy addresses such issues as the right to object to giving evidence, dealing with a victim who retracts their complaint, alternative arrangements for giving evidence, and the safety of victims and witnesses. In another measure, about 40 OPP solicitors and prosecutors have undertaken training to help them to better understand the unique dynamics involved in family violence matters.

The measures were introduced following the establishment of a Family Violence Working Group within the OPP to look at ways to improve responses to family violence matters.

For further information view the speech about the new policy delivered on 10 November 2011 by the DPP, John Champion, at http://www.opp.vic.gov.au/home/director+of+public+prosecutions/opp+-+directors+family+violence+policy+launch+%28pdf%29.

Court education program

Bookings for the Court Education Program at the Supreme and County Courts open on Wednesday 1 February 2012.

Bookings always open on the first day back for government school teachers in Term 1.

Note two changes to the 2012 program:

· morning sessions will start at the earlier time of 9.15 am for both courts

· Year 10 students can no longer be accommodated, unless they are undertaking VCE Legal Studies.

For bookings and more information contact Leanne Newson at the Law Institute of Victoria on
(03) 9607 9468 or .

New Victorian alcohol secondary supply law

From 1 November 2001 it is illegal to serve alcohol in a private home to anyone under the age of 18, unless their parent or guardian has given permission. A parent or guardian may still supply liquor to their own child in a home or residence. The new law is an amendment to the Liquor Control Reform Act 1998,

The Liquor Control Reform Act prohibits the supply of alcohol to minors in most circumstances. Minors are also prohibited from possessing and consuming liquor in most circumstances. Previously, supply of alcohol to minors in a private home has been an exception to these rules.

Parents of teenagers under 18 planning to host parties for their children and their friends in the family home need to be aware of the new laws. Before alcohol is supplied to any under-age guests, parents must ensure in each case that the guest parent or guardian has given permission for liquor to be supplied in those circumstances. If permission has not been given, the supplier of that alcohol is exposed to a maximum penalty imposed by the courts of $7167 or a maximum on-the-spot fine of $716.70. The amended legislation attempts to give parents greater support in deciding how and under what circumstances their child is to be exposed to alcohol.

Even if parents have permission from the guest parent or guardian to supply alcohol, under other laws they are also required to serve alcohol responsibly.

Use of force by police

The Human Rights Law Centre has called for reform of the regulation, training and monitoring of police use of force to enhance community safety and to ensure that Victoria Police members comply with human rights. Members of Victoria Police use force, on average, every 2.5 hours. Almost three quarters of these incidents involve the use of capsicum spray. At least 12 people have been shot dead by Victorian police in the last decade, while numerous others have died in police custody.

A report by the Human Rights Law Centre has found that human rights-compliant regulation, training and monitoring of Victorian police would reduce the incidence of the use of force, provide better guidance and support to police in enforcing the law and protecting the community, and increase public confidence in policing. The report, Upholding Our Rights (September 2011), is based on an extensive survey of international best practice in human rights-compliant policing, together with consultations with people with mental illness, Indigenous peoples, and young people of African descent. Input was also obtained from (the then) Acting Chief Commissioner of Police, Ken Lay.

The Centre says that the next step must be to reform the law and the Victoria Police Manual to make it clear that force is only lawful as a last resort and when strictly necessary. It should be used with the utmost restraint and in a manner that minimises damage and injury. In addition to containing constructive and practical recommendations as to police training and law reform, the report also recommends better monitoring and investigation of police use of force.

The report also reveals that Victoria’s systems for investigating police-related deaths are incompatible with international standards and Victoria’s Charter of Human Rights and Responsibilities.

Further information can be found at http://www.hrlc.org.au/content/police-use-of-force-reform-needed-to-uphold-the-right. The report Upholding Our Rights can be downloaded from this page. Alternatively, contact Anna Brown at the Human Rights Law Centre on (03) 8636 4432 or at .

Independent Visitor Program for Victoria’s Youth Justice Centres

An Independent Visitor Program has been introduced into Victoria's Youth Justice Centres in response to the October 2010 Victorian Ombudsman's report into conditions at the Melbourne Youth Justice Precinct. The Independent Visitor Program for Youth Justice Centres is being established to ensure independent monitoring of centres, the wellbeing of young people in custody, and the protection of their rights and opportunities. Independent Visitors are appointed to a Youth Justice Centre, and visit the centre on a regular basis. Visitors will provide information and assistance to young people to help improve their experience of being in custody. The new program has been modelled on the Independent Prison Visitors Scheme run by the Office of Correctional Services Review for adult prisons.

The program will be managed and administered by the Office of the Child Safety Commissioner. For further information see http://www.kids.vic.gov.au.

Resources

Crime facts and figures

The Australian Institute of Criminology (AIC) website has a quick reference guide summarising trends in crime and criminal justice in Australia. It includes information on different categories of crime, location, victim and offender details, and the response of the criminal justice system. For further information visit http://www.aic.gov.au/publications/current series/facts/1-20/2009/foreword.aspx.

The AIC has also released an enhanced online data tool to track crime trends in Australia, in conjunction with its annual compendium of crime statistics. See Australian Crime: Facts and Figures (1994–2009) online at http://data.aic.gov.au/aic16. This data tool includes victim gender, age and demographic data along with analyses of victims of crimes, crime rates, crime locations, and trends in types of weapons used.

Sentencing Severity Report

The Sentencing Advisory Council’s Sentencing Severity for Serious and Significant Offences: A Statistical Report offers a statistical context for the Council's current work on baseline sentences. The analysis involved producing an offence seriousness ‘rank’ based on current sentencing practices for all serious and significant offences as defined in the Sentencing Act 1991 (Vic.). To view the report, visit http://sentencingcouncil.vic.gov.au/content/publications/sentencing-severity-serious-and-significant-offences-statistical-report.

Correction

In Compak Issue 1, 2011 it was reported that the Juries Amendment (Reform) Bill 2010 had come into force. The essence of this proposed legislation was to increase community representation for jury service. This Bill in fact lapsed.