New South Wales Law Reform Commission Paper on Racial and Religious Vilification

The Law Reform Commission in the Australian state of New South Wales has issued a so-called options paper on serious racial and religious vilification.

It is part of a consultation on the effectiveness of section 93Z of the Crimes Act 1900 (NSW) in addressing serious racial and religious vilification in the state. 

The paper briefly outlines some of the options for reform of s 93Z.

That section makes it an offence for a person, by public act, to intentionally or recklessly threaten or incite violence towards another person or a group of persons on any of the following grounds: race; religious belief or affiliation; sexual orientation; gender identity; intersex status; or HIV or AIDS status.

Another Librarian Profile, This Time From Australia

This is a follow-up to 3 recent posts about profiles of people in the library and information field.

The Australian Law Librarian, the journal published by the Australian Law Librarians' Association, regularly runs profiles of members "down under".

In the December issue of the journal there is a profile of Miz Brmbota, Manager Collections and Reader Experience, Law Library Victoria.  Victoria is a state in southeast Australia. Melbourne is the capital city:

"When did you become a law librarian and what was your first law library job?
I  majored  in  legal  studies  in  my  undergraduate  degree  and  have  always  had  an  interest  in  the  law.  After  I  completed  my  Grad  Dip,  I  applied  for  a  job  at  Middletons  Lawyers  (now  K&L  Gates)  as  a  Research Consultant and got the job. They were looking to get away from terms such as ‘Librarian’ in their job titles, and I got to have this cool job title (so I thought). It was a steep learning curve, but I loved it."

"Getting research queries from the lawyers on obscure topics was exciting. I enjoyed scouring all the legal databases and searching the internet. Some days you found nothing and were totally defeated. Other days were glorious, and you basked in the kudos from the lawyers for having found something they and their teams could not. Everyone at Middletons worked hard, and they celebrated wins pretty hard too. It was a fun time to be there (...)"

"Do you have a favourite library?
The  State  Library  of  Victoria  is  great.  The  La  Trobe  Reading  Room  is  spectacular.  The  Supreme  Court of Victoria Library building is also special. Every time I walk in, I look up at the dome and around at the portraits and think, wow. It was built with gold rush money and is totally ostentatious, with incredible wood panelling and gold ornaments. If you haven’t come in and seen it, you really need to. I know this is all a bit Vic- centric, but if you’re an avid bibliophile and come to Melbourne for a visit, they are both a must see."

Australian Law Reform Commission on User-Friendly Legislation

The Australian Law Reform Commission has published an article on User-friendly legislation: Why we need it, and how to achieve it:

"In our view, the design, drafting, and publication of legislation in Australia needs a fundamental re-think based on ‘user-experience’. This would promote legislation that is more coherent, navigable, and which communicates its message as simply and clearly as possible."

"After discussing the need for user-friendly legislation, this article outlines three potential means by which this could be achieved: 

• first, by drafting legislation that is simpler and more intuitive in its expression and structure;
• second, by helping users of legislation navigate and comprehend it by providing ‘knowledge tools’; and
• third, by improving the law-making process generally, including by soliciting and integrating user feedback, and through undertaking more regular reviews."

 

 

Victorian Law Reform Commission Issues Paper on Recklessness

The Victorian Law Reform Commission (state of Victoria, capital Melbourne, Australia) has published an Issues Paper on Recklessness in the local criminal law:

"Recklessness is an element in many Victorian offences and relevant to the application of the criminal law in other ways. However, it is not consistently defined in Victorian legislation and in most instances takes its meaning from the common law."

"Since the decision of the Victorian Court of Appeal in R v Campbell ([1997] 2 VR 585), an accused is reckless if they know that a particular harmful consequence will probably result from their action but they proceed regardless." 

(...)

"In some Australian jurisdictions, for most offences against the person involving recklessness other than murder, the accused need only foresee the possibility that harm might occur for recklessness to be established."

"The Victorian Law Reform Commission ... is asked to review and report on how the concept of ‘recklessness’ is understood ..."

In an appendix, the document sets out how recklessness is defined in Australian federal and state law, as well as in Canada, England, Wales and Northern Ireland.

The Commission will deliver its report to the state's  attorney general early next year.

Victorian Law Reform Commission Final Report on Stalking

This week, the Victorian Law Reform Commission tabled its final report on responses to stalking to the state parliament.

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

The report contains recommendations to improve the ways that the justice system treats people who have experienced stalking in a non-family violence context. 

It says that victims should have easier access to financial and practical support, such as technology to prevent cyberstalking. Victims should be supported by independent advocates to guide them through every stage, from reporting the stalking activity to accessing support services and any court actions.

Another recommendation calls for the Crimes Act to be amended to make the stalking offence clearer and easier to apply.

Related posts that deal with stalking include:

• Handbook for Police and Crown Prosecutors on Criminal Harassment (May 21, 2013): "The Handbook was developed by a working group of federal/provincial/territorial criminal justice officials in consultation with criminal justice professionals. It was  first published in 1999 and updated in 2004. The development of these  guidelines was prompted by the findings and recommendations of the 1996 Department of Justice Canada review of the criminal harassment provisions in the Criminal Code. The updates have been published in response to positive feedback regarding the usefulness of the Handbook and requests for more current information."
• Law Reform Commission of Ireland Report on Domestic Violence Law (December 5, 2013): "The second issue discussed in the Report is whether the offence of harassment in the Non-Fatal Offences Against the Person Act 1997 addresses sufficiently the problem of stalking in domestic violence cases. The Report notes that most prosecutions for harassment involve domestic cases, and usually involves stalking by former spouses and partners. The current law requires that the harassment must involve “following, watching, pestering, besetting or communicating” and must be done “persistently.” The Commission’s Report points out that the requirement of “persistence” means that a person can be convicted of harassment where stalking involves a single long episode of continuous following or pestering. By contrast, under English law the harassment or stalking must involve at least two separate types of conduct. The Report concludes that the current requirements in the 1997 Act impose appropriate legal thresholds and standards that should be met in order to convict a person of stalking."
• Irish Law Reform Commission Report on Harmful Communications and Digital Safety (October 1, 2016): "The Report also recommends reforms of the existing offence of harassment, to ensure that it includes online activity such as posting fake social media profiles; and that there should be a separate offence of stalking, which is really an aggravated form of harassment."
• Statistics Canada Article on Family Violence in Canada (January 22, 2018): "The 2016 edition of the report features an in-depth analysis of self-reported stalking in Canada, using data from the 2014 General Social Survey on Canadians' Safety (Victimization). This featured section examines the nature and prevalence of self-reported stalking, including how stalking behaviour has changed over time. A particular focus on intimate partner stalking is also presented, including an overview of how stalking that occurs in the context of these relationships differs from other kinds of stalking in important ways."

Government of Victoria Report on How Media Coverage Should Affect Sentencing

The Sentencing Advisory Council of the Government of Victoria in Australia has released a report entitled Should Media Coverage Affect Sentencing?

The report reviews 20 years of Australian case law dealing with high-profile media coverage of certain cases.

From the media release:

"When sentencing a person for committing a crime, Australian courts sometimes consider whether the person has already been punished outside the criminal justice system. Often referred to as ‘extra-curial punishment’, it can, for example, include job loss, family hardship, physical injury and visa cancellation. If this has occurred, the offender may receive a reduced sentence."

"One form of extra-curial punishment that has received relatively little attention is media coverage about a person’s case, especially high-profile media coverage. The question is: Should media coverage about a case entitle the offender to a reduced sentence? And if so, why and how much?"

"These were questions considered but not answered in 2001, when the High Court was divided as to whether media coverage should be able to reduce a person’s sentence. More than two decades later, the issue remains unresolved."

"It is in that context that the Council sought to better understand how courts have been navigating this complex area. We found that when Australian courts are asked to take media coverage into account in sentencing, they face uncertainty as to the basis for doing so and how much weight to give it. The report does not try to resolve these uncertainties. Instead, it reviews judicial and other commentary with the aim of encouraging further discussion by judicial officers, lawyers, journalists and the general public."

The state of Victoria is in south-eastern Australia and its capital is Melbourne. 

Victoria Law Reform Commission Report on Improving the Justice System Response to Sexual Offences

Last week, the Law Reform Commission in the Australian state of Victoria released its report on Improving the Justice System Response to Sexual Offences. 

The report makes numerous recommendations. 

Some of the key ones are that:

• The state should assist victim survivors to take civil action against those who assaulted them.
• It should be easier for victim survivors to get financial assistance and acknowledgement of what happened to them.
• A ‘victim advocate’ should walk with victims on their path through the justice system, providing counselling, emotional support, advice and advocacy.
• A Commission for Sexual Safety should be established in Victoria to provide leadership, raise public awareness, and deliver reforms across the whole system.
• Everyone who works on sexual offence matters, including judges, magistrates and barristers, should be specialists.
• Juries need to be given better directions, and more expert evidence, so they do not fall for myths about sexual offending.
• There should be an enforceable duty on employers and others, such as universities, to eliminate sexual violence and harassment.
• The law should require a person to take steps to find out if there is sexual consent.
• The law needs stronger laws on stealthing and image-based abuse.
• There should be a central gateway to information and support for people who want to report sexual offending.
• People should be able to report sexual offending confidentially online.

The state of Victoria is in south-eastern Australia and its capital is Melbourne. The report was delivered to the Attorney-General of Victoria in September and was published on November 12, 2021.

Victoria Law Reform Commission Consultation on Stalking

The Victoria Law Reform Commission (VLRC) is conducting a public consultation on stalking.

It has issued a consultation paper and will be gathering input until August:

"Stalking is a set of behaviours that can cause great harm to victims’ mental and physical health. If not addressed, it can also escalate to include other types of serious offending, more serious offending, including serious violence and—tragically—homicide and suicide."

"Due to technological advancements, types of stalking behaviour have evolved and can be carried out remotely, without physical proximity to the victim."

"The VLRC is asked to review and report on Victoria’s legal responses to stalking, harassment and similar conduct, including the statutory framework for and operation of the Personal Safety Intervention Order (PSIO) system, drawing upon best practice from the family violence system, criminological research and victim support services. The review should identify barriers to current law effectively responding to stalking, harassment and similar conduct, and make recommendations to address these barriers and improve the justice system’s response, with victim safety and wellbeing the paramount consideration."

"Stalking behaviours can occur in both a family violence and non-family violence context. However, while a specialist, cohesive approach to these behaviours has been developed in a family violence context, less attention has been devoted to the non-family violence response. Additional measures may be required to maximise victim safety and wellbeing and perpetrator accountability, and to allow for more effective early interventions in cases of high or escalating risk. The review may consider mechanisms from the family violence context, such as family violence safety notices and the prohibition on cross-examination by the respondent/accused person. New measures responding to stalking in both family violence and non-family violence contexts should also be considered, such as electronic monitoring as a condition of an intervention order, and responses that address technology-facilitated abuse."

"While stalking is committed by people of all genders, the VLRC is requested to note that most perpetrators of stalking are men, and most victims of stalking are women."

It intends to produce an interim report by 31 December 2021, and a final report by 30 June 2022.

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

Australian Law Reform Commission Consultation Paper on Judicial Bias

The Australian Law Reform Commission has published a Consultation Paper on Judicial Impartiality with questions and draft proposals for public comment:

"The Consultation Paper addresses a number of aspects of the law and institutional structures relevant to judicial impartiality including:

• the mechanisms for raising and determining issues of actual and apprehended bias;
• the test for determining apprehended bias;
• guidance on contact between judges and lawyers appearing in proceedings;
• the collection of data by the courts; and
• institutional processes and structures that complement the law on bias to support judicial impartiality and public confidence in the administration of justice."

The consultation ends June 30, 2021.

Further research and analysis can be found in the Inquiry Background Papers.

More Background Papers on Judicial Bias from Australian Law Reform Commission Releases

This is a follow-up to the Library Boy post of January 24, 2021 entitled Australian Law Reform Commission Releases First in Series of Background Papers on Judicial Bias.

As part of its inquiry into the laws that govern impartiality and bias in that country's federal judiciary, the Australian Law Reform Commission has started releasing a series on background papers on the issue.

After a primer on judicial bias published in the winter, the Commission recently published 2 more documents:

• Recusal and self-disqualification: "This background paper is focused on the practical matter of how courts manage claims (and the potential for claims) by litigants that the judicial officer deciding their matter is, or might appear to be, biased."
• The Federal Judiciary – the Inquiry in Context: "This background paper provides an overview of the composition of the federal judiciary; the jurisdiction of the Commonwealth courts; the workload of those courts; and the frequency of complaints against judicial officers (noting that such complaints may not necessarily be in relation to an allegation of impartiality or bias). It also gives a preliminary analysis of information available in judgments over the past five years concerning applications for disqualification on bias grounds."

The Commission hopes to publish a Consultation Paper in April 2021 with questions and draft proposals for public comment.

Victoria Law Reform Commission Consultation on Jurors who are Deaf, Hard of Hearing, Blind or Have Low Vision

The Victoria Law Reform Commission is conducting a public consultation on more inclusive juries. 

The Commission wants to find out what reforms are needed to improve access for people who are deaf, hard of hearing, blind or have low vision who wish to serve as jurors in the state of Victoria.

It issued a consultation paper in December 2020 and will be gathering input until the end of February.

From the terms of reference:

"The Juries Act 2000 (Vic) provides a list of people who are ineligible to serve as jurors. Among those excluded are persons with ‘a physical disability that renders [them] incapable of performing the duties of jury service’, and those who are ‘unable to communicate in or understand the English language adequately’."

"Although people who are deaf, hard or hearing, blind or have low vision are not expressly precluded from jury service, prohibitions on allowing interpreters or communication assistants into the jury room mean that, for many, such service would not be possible."

"The project will examine the current legal framework to consider whether legislative change is required, what practical supports would be necessary, and whether there are specific circumstances in which such jury service should be limited. In conducting this review, the Commission will have regard to: 

• Relevant legal and practice developments in domestic and international jurisdictions. 
• Current practice and statistics in Victoria relating to excusal and disqualification of people who are deaf, hard or hearing, blind or have low vision as jurors. 
• The common law rule prohibiting any non-jurors from being present in jury deliberations (the ‘thirteenth person’ rule). 
• The interaction with discrimination law and human rights in Victoria. 
• The interaction with peremptory challenges and crown stand-asides. 
• The resourcing and training implications for court and jury offices staff and judicial officers. 
• The importance of a fair trial and confidence in the jury system."

Appendix B of the consultation paper provides information about the experience of many other jurisdictions. Those jurisdictions include New Zealand, England and Wales, Scotland, Ireland, the United States, and Canada.

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

Australian Law Reform Commission Releases First in Series of Background Papers on Judicial Bias

The Australian Law Reform Commission last year launched an inquiry into the laws that govern impartiality and bias in that country's federal judiciary:

"The Terms of Reference for this Inquiry direct the ALRC to consider in particular:

• whether the law about actual or apprehended bias relating to judicial decision-making is appropriate and sufficient to maintain public confidence in the administration of justice;
• whether the law provides enough clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
• whether current mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate (including in relation to review and appeal mechanisms)."

As part of the project, the Commission last month published a primer on judicial bias, the first in a series of background papers that will be released in early 2021.

The Commission hopes to publish a Consultation Paper in April 2021 with questions and draft proposals for public comment.

New South Wales Law Reform Commission Paper on Publication Bans

The New South Wales Law Reform Commission in Australia has issued a Consultation Paper on Open justice: Court and tribunal information: access, disclosure and publication.

It is part of a consultation process into whether current arrangements for court-ordered publication bans strike the right balance between the proper administration of justice, the open courts principle, the rights of victims and witnesses (for example, children involved in court proceedings and complainants in sexual offence proceedings), privacy, confidentiality, public safety, the right to a fair trial, national security, commercial/business interests, and the public interest in open justice.

It will also look into whether such bans can remain effective in the digital environment.

The document examines the situation in New South Wales, other Australian states, New Zealand as well as England and Wales.

The full terms of reference for the project are on the Commission's website.

Victoria Law Reform Commission Papers on Improving the Response to Sexual Offences

The Victoria Law Reform Commission (based in Melbourne, Australia) has published a series of issues papers for an inquiry into Improving the Response of the Justice System to Sexual Offences:

"The issues papers describe the current state of the law justice system and ask questions about how to improve it. 

• Guide to the Issues Papers
• A Working Together to Respond to Sexual Offences: Systems 
• B Sexual Offences: Key Issues in the Criminal Justice System 
• C Defining Sexual Offences 
• D Sexual Offences: Report to Charge 
• E Sexual Offences: The Trial Process 
• F People Who Have Committed Sexual Offences 
• G Sexual Offences: Restorative and Alternative Justice Models 
• H Sexual Offences: Civil Law and Other Non-Criminal Responses"

This is part of a consultation process launched by the Commission which will produce a report by 31 August 2021.

In its work, the Commission will focus on:

• barriers to reporting sexual offences: what prevents people from reporting sexual harm
• why reports of sexual harm may not proceed through the justice system
• how to reduce the trauma of victim survivors in the justice system
• how to improve data collection and reporting
• the best ways of responding to sexual offences—including alternatives to the justice system

 

COVID-19 Reports from Legislative Research Organizations

The US-based infoDOCKET website has posted a list of Reports From the Congressional Research Service and Legislative Research Organizations in Australia, Canada, EU, and UK:

"Below, find a growing list of reports from the Congressional Research Service (U.S) as well as legislative research organizations in Australia, Canada, EU, and UK. We update this page several times a week."

The non-American research organizations referred to include the Parliamentary Library in Australia, the Library of Parliament in Ottawa, the via European Parliament Research Service and the House of Commons Library in the United Kingdom.

Discussion Paper on Corporate Criminal Responsibility in Australia

The Australian Law Reform Commission (ALRC) has released a discussion paper on Australia’s corporate criminal responsibility:

"The ALRC seeks stakeholder submissions on 23 proposals for reform to the Commonwealth’s corporate criminal law regime, and asks 11 questions on particular areas of reform. The Discussion Paper addresses a number of aspects of corporate criminal liability, including:

• the principled division between criminal offences and civil penalty provisions;
• the method for attributing criminal liability to corporations;
• individual liability for corporate offences;
• deferred prosecution agreements;
• penalties and the sentencing process;
• illegal phoenix activity (deliberate liquidation with the intent to avoid creditors and continue operations through a new entity); and
• the implications of the transnational nature of business and extraterritorial offences."

The ALRC's final report to the government will be published in April 2020.

Australian Law Reform Commission Report on Class Action Proceedings and Third-Party Litigation Funders

The Australian Law Reform Commission (ALRC) recently published its report Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders.

Among other things, the report examines to what extent class action proceedings and third-party litigation funders should be subject to national regulation, and whether there is adequate regulation of conflicts of interest between third-party litigation funders, lawyers and class members.

According to the Commission's media release of January 25, 2019:

"The ALRC conducted over 60 consultations with stakeholders and received over 75 submissions to advance Report 134 and its 24 recommendations for reform. The recommendations aim to promote fairness and efficiency in class action proceedings; protect litigants from disproportionate costs; and assure the integrity of the civil justice system, and include recommendations to:

• provide mechanisms in statute and legal frameworks for the Federal Court to deal effectively with competing class actions;
• provide mechanisms by which the Federal Court can appoint an independent costs referee to establish the reasonableness of legal costs in class action matters, and by which the Court can tender for settlement administration services;
• increase transparency and open justice for class action settlements;
• decrease the risk of ligation funders’ failing to meet their obligations or exercising improper influence through a statutory presumption in favour of securities for cost, and greater Court oversight of funding agreements which must indemnify the lead plaintiff against an adverse costs order;
• enhance access to justice and decrease costs to litigants through the introduction of a limited percentage-based fee model for solicitors; and
• introduce a voluntary accreditation scheme for solicitors acting in class action proceedings."

Related Library Boy posts include:

• British Columbia Law Institute Blog Series on Financing Litigation (October 30, 2017)
• Victoria Law Reform Commission Report on Litigation Funding and Class Proceedings (June 20, 2018)

New South Wales Law Reform Commission Consultation on Digital Assets after Death

The Law Reform Commission in New South Wales, Australia has released a consultation paper on laws that affect access to a person's digital assets after they die or become incapacitated.

As a background document explains:

"In general, a person's digital property and electronic communications are referred to as 'digital assets'. These can include photographs, videos, emails, online banking accounts, cryptocurrency, domain names, blogs and online gaming accounts."

"Digital assets can have significant personal, sentimental and even financial value. Permitting access to these assets after the person's death or incapacity is therefore essential. However, family members and fiduciaries can encounter significant barriers in acquiring access, largely due to the terms of service agreements between users and service providers."

"In response to these barriers, there is an emerging trend of overseas litigation involving grieving families seeking access to their deceased relative's digital assets. Australian courts appear to have not yet considered these issues."

"The NSW Law Reform Commission has been asked to review and report on access to digital assets upon death or incapacity. Our review will consider the current state of the law, developments that have occurred in other jurisdictions, and whether NSW should enact legislation to address the difficulties in accessing the digital assets of a deceased or incapacitated person."

The consultation document looks at the situation in the United States, Canada, and the European Union.

New International Law Research Guides From GlobaLex

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, recently published updates to a few of its research guides.

DipLawMatic Dialogues, the blog of the FCIL Special Interest Section of the American Association of Law Libraries, has the list.

There are updates for the guides on:

•  the European Human Rights systrem
• MERCOSUR 
• the Vienna Convention on Consular Relations
• U. S. Federal Legal System Web-based Public Accessible Sources
• the Australian Federal Legal System
• and more

Victoria Law Reform Commission Report on Litigation Funding and Class Proceedings

The Victoria Law Reform Commission in Australia has tabled a final report in the state parliament on Access to Justice - Litigation Funding and Group Proceedings:

"Each of the three components—litigation funding, contingency fees, and class actions (group proceedings)—does, or has the potential to, contribute to access to justice. Litigation funding reduces the risks to litigants of taking proceedings; removing the ban on contingency fees could introduce another means of doing so; and class actions take advantage of economies of scale."

"This report, informed by the overarching issue of access to justice and the aim that litigants are not exposed to unfair risks or disproportionate cost burdens, examines the specified issues in the terms of reference, and makes recommendations in respect of each of them."

"In relation to litigation funding, the Commission makes recommendations for national regulation of the industry and greater transparency when a litigation funder is involved in proceedings. The Commission does not recommend fixed caps or limits on funding costs; rather, it encourages appropriate court control."

"In relation to the prohibition on law firms charging contingency fees, the Commission recommends that, in principle and in appropriate areas of law, lawyers should be allowed to charge contingency fees. This is also a matter which should be developed nationally, in the interests of consistency."

"In relation to class actions, the Commission’s recommendations seek to strengthen the Court’s powers [note: the Court refers to the state's Supreme Court], particularly in ensuring that a successful outcome is not unduly eroded by legal and funding fees. The Commission also makes recommendations to improve efficiency and accountability, which should reduce delays and associated costs, but has concluded that the introduction of a pre-commencement certification requirement is neither desirable nor necessary."

The state of Victoria is in south-eastern Australia and its capital is Melbourne.