2015 - Vol 40(4) - Laws and Liberties


Crime and punishment

Precarious pathways

Sentient beings

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Marriage and equality: What’s love got to do with it?

Kate Galloway

Marriage-Equality-skneebone-smThe marriage traditionally recognised at law is hardly the liberating concept that forms the foundation for the global movement for marriage equality. As an institution, it has traditionally represented a site of inequality for women1 and the social norms associated with that inequality continue to resonate.2 Yet despite these foundations, the institution continues at law even as the legal consequences of marriage have changed significantly, promoting objectives of equality. Now there remain only traces of the legal status traditionally afforded by marriage — official forms for example, continue to ask for marital status.

Despite significant advances in the law’s equal treatment of parties within an intimate relationship, and as between different types of intimate relationship, the vestiges of marriage remain exclusive. While the law prohibits discrimination based on marital status,3 it retains the discriminatory foundation of marriage as restricted only to couples comprising a man and a woman.

Many may feel satisfaction or security in having their status determined according to their State-endorsed (hetero)sexual relationship. Some may seek the retention of the existing legal definition of marriage because their church ordains it, or they may believe that marriage validates and represents their love for their spouse. These views however, provide no basis for the retention at law of the presently conceived institution of marriage as the union of a man and a woman entered into voluntarily, for life and to the exclusion of all others.4

(2015) 40(4) AltLJ 225


ASIO’s ‘official history’ sheds light on spy agency’s lawlessness

Michael Head

ASIO-history-skneebone-smMany things could be said about The Spy Catchers, the first volume of the government-funded ‘official history’ of the Australian Security Intelligence Organisation (‘ASIO’), published late in 2014.1 This article focusses on what the book partially reveals about the lawlessness with which ASIO was established and operated for decades, and no doubt still does.

Covering 1949 to 1963, and presented as the first of three volumes of The Official History of ASIO, the book cannot be considered an independent account of the creation and expansion of ASIO. The official history project was commissioned by the Rudd Labor government in 2008, and the first volume was launched by the Abbott Liberal-National government in 2014 for the purpose of sanctifying ASIO’s role as the central domestic intelligence agency of Australia’s political, corporate and military-security establishment.

In his preface, the author, David Horner, a former military officer who is the Official Historian and Professor of Australian Defence History at the Australian National University, asserted the ‘good reasons’ for publishing an official history of ASIO. ‘Through a series of historical and political circumstances, many myths or half-truths have flourished about the early decades of the Organisation,’ he wrote. ‘These myths damaged the Organisation’s standing in the Australian community, and this is unfortunate because ASIO does not exist for itself. Rather, ASIO exists to serve the nation.’2

(2015) 40(4) AltLJ 229


Freedom from political communication

Aidan Ricketts

freedom-political-communication-skneebone-smThe rhetoric behind anti-protest laws

Australia lacks any constitutionally entrenched or enforceable Bill of Rights, and there is also a distinct lack of substantive civil and political rights embedded in the general body of our Constitution. As a result basic civil and political rights, well recognised at the international level remain particularly vulnerable to legislative infringement. The lack of a widely recognised set of benchmarks for political liberty risks allowing legislatures to progressively curtail rights to expression, protest and assembly and to engage in a progressive re-framing of the discourse around political liberty by reference to other competing values such as public order, security and more recently business interests.

There are numerous examples of increasing restriction of protest emanating from Australian parliaments in recent years, but this article will focus upon three particular examples of anti-protest legislation at the state level. The specific examples include recent enactments by the Victorian, Western Australian and Tasmanian state governments that specifically target protest activities that have the aim or effect of disrupting the activities of business.1 The legislatures appear to be using quite dramatic changes to criminal law in an attempt to carve out a zone of exclusion to protect business interests from the usual inconvenience associated with protest activity, sometimes even to the extent of engaging in a language of business rights.

(2015) 40(4) AltLJ 234


Tightening eligibility for bail for persons on supervision orders in Victoria

Marilyn McMahon and Cindy Davids

Repairing a broken system?

Victoria Nourse has observed that political debates about crime legislation are predictable and invariably one-sided because ‘no-one is “for” crime’.1 This certainly appears to be the case with regard to recent changes to the Bail Act 1977 by the government of Victoria. The reforms were triggered by the case of Sean Price, an offender with a history of mental disorder, serious offending and lengthy incarceration who was on bail and subject to a supervision order when he murdered Masa Vukotic, raped another woman and assaulted a third person in March 2015. The Premier of Victoria, Daniel Andrews, stated that a bail system that allowed Price to be free and unmonitored was failing the community2 and pledged to repair ‘a system that is broken’.3

One of the first initiatives introduced in the wake of Price’s crime spree was to review the cases of all other serious sex offenders subject to supervision orders.4 The state government also established an independent panel to review how dangerous sexual offenders are managed in Victoria, chaired by former Supreme Court judge David Harper. A further initiative — the Serious Sex Offenders (Detention and Supervision) and Other Acts Amendment Act 2015 — increases significantly court and police powers in relation to those who are on supervision orders. The Act also tightens the eligibility for bail of those who are alleged to have committed an offence while subject to a supervision order — and it is this reform that is the subject of this article. Following a description of the events that triggered the reforms, we review the functions of bail and the current bail regime in Victoria. We briefly outline supervision orders and then describe the reforms. We argue that although the shocking nature of Price’s crimes might seem to justify restricting eligibility for bail for this category of offender, the proposed reform — which employs bail as another form of preventive detention — derogates from basic legal principles, distorts the process of bail and, most significantly, disregards the fact that persons on supervision orders are already subject to a form of preventive detention that is supposed to provide a potent framework for their risk management.

(2015) 40(4) AltLJ 239


The Bowraville murders: Were they a coincidence?

Lesley Townsley

coincidence-inconvenient-smThe doctrine of double jeopardy generally means that a person acquitted of a crime cannot be retried again for the same crime. In 2006 the laws on double jeopardy were changed in New South Wales.1 Section 100 of the Crimes (Appeal and Review) Act 2001 (NSW)2 states that a retrial can be ordered by the Court of Criminal Appeal where a person was acquitted of a life sentence offence if there is ‘fresh and compelling’ evidence and if it is in the ‘interests of justice’ to make the order. Section 102 defines fresh and compelling evidence. Evidence can be fresh if it was not adduced in the proceedings in which the person was acquitted. The Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 (NSW) was introduced in the Legislative Council on 4 June 2015. This Bill seeks to clarify the meaning of when evidence is ‘adduced’ by providing a further definition of when evidence is ‘fresh’ in s 102. Under the proposed amendment evidence will be fresh ‘if it was inadmissible in the proceedings in which the person was acquitted, and as a result of a substantive legislative change in the law of evidence since the acquittal, it would now be admissible if the acquitted person were to be retried’.3 The NSW government has appointed Justice James Wood to conduct a review of s 102 to be completed by 15 November 2015.

(2015) 40(4) AltLJ 243


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