: DUAO - Vol 40(3)

DUAO - 2015 - Vol 40(3)

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Developments around the country

DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.

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The proof is in the pudding: Statutes Amendment (Vulnerable Witnesses) Bill 2015

Natalie Wade
South Australia

As promised in the SA Disability Justice Plan, the Attorney-General has passed another sweep of legislative amendments to create better access to the criminal justice system for people with disabilities. In 2014, the Attorney-General amended the Criminal Law Consolidation Act 1935 (SA), creating an offence of sexual exploitation of people with cognitive impairment (see section 51 of the Act). Following on from that, the Attorney-General has turned to the participation of people with disabilities as victims, suspects, witnesses and defendants. This overview will focus on the amendments relating to people with disabilities; however amendments have also been made for young children.

The Statute Amendment (Vulnerable Witnesses) Act 2015 (SA) targets the participation of people with disabilities in the criminal justice system by tailoring the Acts that regulate the pre-trial and trial processes and procedures, such as the Evidence Act 1929 (SA) and Summary Offences Act 1953 (SA) to account for cognitive impairment, complex communication needs and physical disability.

(2015) 40(3) AltLJ 213


Specialist Family Violence Court?

The Tasmanian Committee

August 2015 saw a whirlwind visit of Tasmania by arguably Australia’s most well-known family violence advocate and current Australian of the Year, Rosie Batty. On the back of her visit which included meeting with a wide variety of community groups, lawyers and Cabinet there has been new impetus for the creation of a specialist Family Violence Court, a reform long championed by Tasmania’s Women’s Legal Service with the Attorney-General Vanessa Goodwin announcing the 
go-ahead of a feasibility study to examine the merits and potential cost of a specialist Family Violence Court. Susan Fahey, the principal solicitor of the Women’s Legal Service, observed in an article published in The Advocate that specialist magistrates, prosecutors, and staff to deal with offenders and victims will need to be appointed if a Family Violence Court were to be established. Other family violence reforms that are currently being considered by the government include specialised training for police officers and improving services for young people affected by family violence. The government has committed to releasing a family violence action plan soon with advocates hoping that funds will be made available for programs to assist offenders change their behaviour.

(2015) 40(3) AltLJ 214


First ‘baseline sentence’ highlights problems

Robert Corr

The Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) 
commenced on 1 July 2015, and the Supreme Court has already been forced to grapple with its arcane provisions. In R v IRT [2015] VSC 372, Justice Lasry considered ‘the first case to which these new provisions apply’. He allowed the Criminal Bar Association to make submissions as amicus curiae, referred to a Sentencing Advisory Council report on calculating median sentences, and ultimately produced a 92-paragraph appendix to the judgment, dealing solely with the baseline sentencing issue.

His Honour observed that the new process appeared to require a two-stage analysis that was ‘difficult to reconcile with descriptions of the process of instinctive synthesis.’ The crux of the judgment was the nature of a ‘median’ value (at [141]):

It must be accepted as a matter of mathematics, that so long as half of all sentences are at or above, and half of all sentences are at or below a particular figure, the distribution of sentences above and below that point do not affect the median. Therefore sentencing in a manner compatible with Parliament’s intention does not require that sentences below the median are scaled in proportion to the baseline sentence.

Having determined that the offending conduct falls into the lower half of the range of seriousness of the relevant charge, the sentencing judge must continue to apply the other provisions of the Sentencing Act 1991 (Vic) in the usual way.

Acknowledging this would result in ‘an artificial sentencing pattern’ in which there is ‘a significant gap between median sentences and sentences in cases falling below the median’, Justice Lasry noted that mandatory minimum sentences also distorted sentencing outcomes. ‘While it is an unusual result, it is not one which is so absurd as to cast doubt on the construction of the provisions.’

(2015) 40(3) AltLJ 214


Family violence

Robert Corr

The Family Violence Royal Commission began a month of hearings on 13 July 2015. Commissioner Marcia Neave has heard from witnesses about the nature of the crimes they have suffered, and also about their experiences in navigating the systems in place to protect and assist them.

On a positive note, Victoria Police and the Dandenong Magistrates’ Court have initiated a pilot program to fast-track intervention order breach matters. After 18 months, the recidivism rate appears to have been significantly reduced.

However, outside the pilot area, some family violence matters may take up to a year to be heard, in part because of outdated computer databases that made it hard to identify family violence matters to be fast-tracked. Similarly, the Commission heard that the Child Protection Unit is struggling to cope with ‘mounds of faxes’ received from police needing to be retyped into the computer system, and often failing to meet the threshold for further action to be taken.

Even where systems have been improved, institutional attitudes to family violence may be problematic. The Commission has heard of court clerks who questioned whether intervention order applications were legitimate. Victoria Police Assistant Commissioner Luke Cornelius noted that while the code of practice required all complaints of intervention order breaches to be taken seriously, there had nevertheless been ‘a number of clear cases where police have not paid attention to those breaches escalation has occurred and it’s had terrible consequences.’

The Family Violence Royal Commission is due to report by February 2016.

(2015) 40(3) AltLJ 214


Web-based form to help Intervention Order applicants

Robert Corr

The Neighbourhood Justice Centre has introduced a new online application form for Family Violence Intervention Orders. It is intended to reduce the complexity of the standard application form for an intervention order in the Magistrates’ Court, which is 12 pages long and requires some legal knowledge to complete correctly.

The new form is interactive, so it reduces confusion by only including questions that are relevant to the applicant. It guides the user through the process, and uses plain English and examples to explain the information that is requested. It also provides security advice and contact information for relevant community organisations. Importantly, it is designed to be discreet, with security features built in to help victims of family violence keep their application confidential.

The electronic form is currently available for residents of the City of Yarra for a six-month trial period, after which it is expected to be expanded to other areas.

(2015) 40(3) AltLJ 214


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