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Australian Law Reform Commission - Reform Journal |
Articles in Reform Roundup are contributed by the law reform agencies concerned.
Contents
80 Administrative Review Council
81 British Columbia Law Institute
82 Law Reform Commission of Western Australia
82 Manitoba Law Reform Institute
88 National Conference of Commissioners on Uniform State Laws (United States)
89 Scottish Law Commission
93 Victorian Law Reform Commission
Draft Report on Government Agency Coercive-Information Gathering Powers
The Council is in the process of finalising a report on the exercise of coercive information- gathering powers by government agencies. This project is focusing on the powers of agencies to compel the provision of information, generally through production of documents or attendance at an interview. The project’s principal objective is to determine whether greater consistency in these powers across government is either desirable or achievable. It will also consider the accountability mechanisms associated with the exercise of coercive investigative powers and the protections available to individuals. The Council received 37 submissions to the release of a draft report in December 2006.
The Council intends to report to the Attorney- General on this project in early 2008.
Report on Administrative Decisions in areas of Complex and Specific Business Regulation
The Council is currently responding to terms of reference from the Attorney General seeking the Council’s views, in the context of decisions in areas of complex business regulation, on the most effective and efficient administrative accountability mechanisms. This project involves consideration of possible adaptations to merits review processes, the expansion or adaptation of other accountability mechanisms that might be appropriate to complex business regulation, and the possible development of a framework of guideline principles in the area.
The terms of reference for the project are available on the Council’s website at www. ag.gov.au/arc.
Special 30th anniversary edition of Admin Review on the 'Future of Administrative Law and the Challenges that Lie Ahead'
In May 2007, the Administrative Review Council (the Council), published a special issue of its annual administrative law bulletin, Admin Review, marking the occasion of the Council’s 30th anniversary.
The bulletin includes presentations which were made at a special 30th anniversary seminar in September 2006 at Parliament House by the former Chief Justice of the High Court, Sir Anthony Mason AC KBE; the Secretary of the Attorney-General’s Department, Robert Cornall AO; the Chief Executive of the Business Council of Australia, Ms Katie Lahey; CEO of the Australian Consumers’ Association, Mr Peter Kell, and the Chairman of the UK Council on Tribunals, Lord Newton of Braintree OBE DL.
The bulletin also includes articles from several other contributors on the theme of future challenges, including Dr Peter Shergold, Secretary of the Department of the Prime Minister and Cabinet on ‘Future Challenges for Administrative Review’; an article on ‘Judicial Review in Western Australia’ by the Hon Wayne Martin, Chief Justice of the Supreme Court of Western Australia; and a brief history of the origins of the Council by its Executive-Director.
Please contact the Council Secretariat on (02) 6250 5800 or e-mail arc.can@ag.gov.au if you would like a copy of the anniversary edition of Admin Review.
Best Practice Guides
On 10 August 2007 the Council launched a series of best practice publications for administrative decision makers. The subject matter of each publication in the series reflects a key stage in the decision making process. The 'Guides' are intended to provide practical guidance to government decision makers on lawful and procedurally fair decision making, statements of reasons, accountability and fact finding and have been designed as a general training resource and reference for Commonwealth agencies. In this regard, they will be able to be supplemented by material for the policies, practices and legislative frameworks of departments and agencies. The Department of Immigration and Citizenship has now completed annotating the five Guides specific to that Department’s requirements.
The Office of the Commonwealth Ombudsman is also considering producing an annotated version of the Guides.
The Council encourages other Departments to consult with the Council for the purpose of annotating the Guides to include agency- specific information. The Guides are available on the Council’s website at www.ag.gov/arc. For further details, contact the Council Secretariat on (02) 6250 5800 or e-mail arc. can@ag.gov.au.
Automated Assistance in Administrative Decision Making Better Practice Guide
The Council recently participated in working group, led by AGIMO, to produce a ‘hands on’ Better Practice Guide for departments and agencies currently using, or in the process of developing, computer-based decision making systems. The working group was formed on the basis of one of the recommendations in the Council’s most recent report on Automated Assistance in Administrative Decision Making (AAADM). That report identified 27 best practice principles designed to ensure that decisions made using expert systems are consistent with existing administrative law values.
A number of the Council’s reports, including the AAADM report, can be downloaded from the Council’s website.
The British Columbia Law Institute has been very active in its project work. Following is a selection of some of our current projects:
Canadian Conference on Elder Law
The 2007 Canadian Conference on Elder Law was held in Vancouver on 8–10 November 2007. Experts and advocates of elder law came to share knowledge and explore best practices.The Conference attracted more than 220 attendees and presenters from around the world. It was a great success.
The theme of the 2007 Conference was 'Moving Forward, Moving Beyond.' Among the highlights of the ers presented were:
• the Keynote Address, entitled 'Elder Law: An Emerging Practice,' delivered by the Right Honourable Chief Justice of Canada Beverley McLachlin, P.C.;</blockquote>
• the Welcome Address, delivered by the Honourable Robert Nicholson, P.C., Q.C., Minister of Justice and Attorney General of Canada, which highlighted the action and commitments of the Government of Canada to tackling crime, identity theft, and elder abuse; </blockquote>
• the Dinner Address, by Mr. Michael Valpy, an award-winning Canadian journalist and author; and</blockquote>
• the Distinguished Lecture, given by Prof. Rebecca Morgan, Director of Stetson University’s Center for Excellence in Elder Law and the holder of the Boston Asset Management Faculty Chair in Elder Law. </blockquote>
The 2007 Conference was also held in conjunction with the first ever Federal/ Provincial/ Territorial Working Group on Seniors’ Issues Forum, which focussed on elder abuse issues.
The British Columbia Law Institute and the Canadian Centre for Elder Law Studies would like to invite everyone to the 2008 Canadian Conference on Elder Law, which will be held in Vancouver, 13–15 November 2008. The theme of the 2008 Conference will be guardianship. The Canadian Centre for Elder Law Studies
is planning to host next year’s exciting conference jointly held with the International Guardianship Network.
The Canadian Center for Elder Law Studies is committed to international co-operation and knowledge mobilization. Watch for the call for abstracts for the 2008 Conference in early Spring 2008 at www.ccels.ca.
Real Property Review—Phase One
British Columbia has been using a variation of the Torrens system for land titles purposes for many years. As is the case in other jurisdictions, the system employed in British Columbia has some unique features. With continuing changes in economic activity and social needs, the time is ripe to consider a thorough review of the principles underlying real property interests and the operating systems and processes which relate to them.
In June 2007, the BCLI commenced work on the first phase of a law reform project that may mature into this comprehensive review. The goals of phase one of the real property review
project include:
• meetings with key stakeholders in British Columbia’s land title system; and</blockquote>
• preparation of a project plan for the broader, comprehensive project. </blockquote>
The project plan is scheduled for completion in December 2007. It will include recommendations on whether or not the broader, comprehensive real property review is feasible.
Phase one of the real property review project is being carried out with the assistance of an advisory committee
Family Caregiving Leave
There is a significant need in British Columbia to clarify the laws surrounding leave from employment and other forms of accommodation for the care of family members, which may include disabled adult children, and older adults. To date, little legal research has been assembled in this area, despite a significantly increasing prevalence of family caregiving in this province.
Given the growing obligations of family caregiving in British Columbia, employers are facing heightened demands to provide special leave provisions, flexible employment arrangements, and other workplace assistance. But the legal rights and responsibilities of the parties concerned are confusing and unclear in nature. Comprehensive legal research and writing in this area would help inform this development, as well as foster a greater understanding of the myriad issues facing short- and long-term caregivers.
In September 2007, the BCLI commenced a two-year legal research project to study these issues related to family caregiving leave. The goals of the project include:
• consolidating the conflicting and often confusing existing legal rules on the topic family caregiving leave; </blockquote>
• providing a basis for continuing legal education; and</blockquote>
• publishing a final report, with the potential to information future legislative change, which will create a much-needed resource for British Columbians. </blockquote>
This project is being carried out with the assistance of an advisory committee, composed of leading lawyers and other professionals in the employment, human rights fields, and family care fields.
Personnel Changes
There were some changes made to the composition of the BCLI’s executive committee at the BCLI’s annual general meeting in September 2007. The BCLI’s officers are:
Ann McLean Chair
D. Peter Ramsay, Q.C. Vice-chair
Gregory K. Steele, Q.C. Secretary
Kathleen Cunningham Treasurer
The BCLI also welcomed Kathleen Cunningham, Kevin Woodall, and Prof. Margaret Hall as new members and directors.
On 1 August 2007, the BCLI welcomed Krista James to its full-time staff. Ms. James joins the BCLI as a staff lawyer.
Franchise Law
In May 2007, the Manitoba Law Reform Commission released its Consultation Paper on Franchise Law. The Commission noted that franchising is a growing and relatively unregulated field of business activity. There has been occasional media attention focusing on the inequality between franchisors and franchisees and recently, on alleged franchising frauds in Manitoba. In recent years, four Canadian provinces have enacted new or replacement franchise legislation.
The Consultation Paper considered whether the regulation of franchises would be desirable in Manitoba. It provided an introduction to the history and various models of franchising, an overview of existing franchise regulation in Canada and other countries and a comparison of the elements of Canadian legislative regimes. Finally, it asked whether franchise legislation is needed in Manitoba, and if so, what elements should be included in the legislation. The Commission is currently considering the comments received in response to the Consultation Paper and preparing its final report.
The Consultation Paper is available on our website at: http://www.gov.mb.ca/justice/mlrc.
Defamation
The Manitoba Law Reform Commission has noted that a review of possible reform in the law of defamation respecting journalism deserves consideration. In recent years, the common law in other jurisdictions has extended a qualified privilege to the communications media, in some circumstances, for publications regarding matters of general public interest, including political and governmental matters.
There has been some concern that the current law in Manitoba does not adequately defend and encourage critical journalism, and that the notion of 'libel chill' hampers the reporting of issues of public concern and interest. Accordingly, the Manitoba Law Reform Commission has agreed to undertake this project.
Limitation of Actions
The law of limitations has traditionally been rife with complexities and ambiguities, leading to all manner of unfairness, but it is a subject that rarely captures the attention of legislatures. Manitoba’s Limitations Act was amended in 1967, 1980, and 2002, but in essence it is still very much the same legislation that was enacted in 1931, and based on the same principles as the original English limitations legislation, much of which dates back to the 17th century. In recent years several Canadian jurisdictions have enacted, and the Uniform Law Conference has proposed, legislation that simplifies and rationalizes the law of limitations. The Manitoba Law Reform Commission is now studying the implications of recent reform initiatives for Manitoba, and will be making recommendations as to whether and how Manitoba should 'modernize' its legislation.
Waivers and Personal Liability
The waiver of liability is a contractual document designed to free a person from his common law duty of care to another. It is an aspect of the defence of voluntary assumption of responsibility. The waiver provides an immunity from tort liability with the consequence that a person who is severely injured as a consequence of negligent or reckless behaviour has no recourse. The Commission is conducting research in this area, recognizing that frequently, members of the public may not understand such waivers, or are required to sign them to secure entry to a wide range of recreational and sporting activities. Legislative reform in the UK, for example, declares such waivers to be void when relied on by commercial service providers. The project touches on negligence law, occupiers’ liability, contract and insurance matters.
Divorced Spouses Surviors' Pension Benefits
The Commission is currently carrying out research with respect to a possible gap in the law in Manitoba relating to the division of pension benefits between divorced spouses. Where one spouse has contributed to a pension plan, the benefits of the plan, usually a future pension income, generally must be divided between the spouses. Usually one half of the part of the pension that is attributable to the contributions made during marriage is transferred. However, this covers only the pension payable during the contributing spouse’s lifetime; it does not cover any survivor’s benefits. A divorced spouse, who would have had an expectation of security in later years from his or her spouse’s pension or from a surviving spouse’s pension, has no entitlement to a survivor’s benefit. Arguably, this economic disadvantage should be taken into account along with the other circumstances of the parties.
Current Developments and Projects in International Law
Since our last column for the Reform journal, a number of significant developments have occurred with respect to the National Conference of Commissioners on Uniform State Laws (NCCUSL). We held our Annual Conference in July 2007 and adopted four new uniform acts to recommend to the states for adoption: the Uniform Interstate Depositions and Discovery Act, the Uniform
Adult Guardianship and Protective Proceedings Jurisdiction Act, the Uniform Limited Cooperative Association Act, and the Uniform Rules Relating to the Discovery of Electronically Stored Information. Our 2007 legislative year also was very successful, with 105 uniform acts having been adopted in the various states. In their first year after adoption by the Conference, the new Uniform Anatomical Gift Act has been adopted in 20 states and the new Uniform Prudent Management of Institutional Funds Act has been enacted in 13 states.
Our Annual Conference also adopted a shorter alternative name for our organization: the Uniform Law Commission (ULC). This name and logo will be prominently used from now on in our publications, on our website, and in our new offices. Effective December 26, 2007, the ULC will be housed in new, more spacious and much more convenient offices just east of the Chicago loop, overseeing Millennium Park and Lake Michigan: 111 North Wabash Avenue Suite 1010 Chicago, IL 60602 We will have new telephone and fax numbers, but our web and e-mail addresses will not change.
The ULC has a number of current projects dealing with international law. First, we are engaged in four projects with our North American counterparts in an effort to harmonize the laws of the United States, Canada, and Mexico. The ULC, along with the Uniform Law Conference of Canada and the Mexican Center for Uniform Laws, is working on a joint project to create a Harmonized Legal Framework for Unincorporated Nonprofit Associations in North America. This project should result in three 'national drafts'— one each for the U.S., Canada, and Mexico—that will contain a common set of basic principles that each country can incorporate into their statutory frameworks concerning unincorporated nonprofit associations. This joint committee has made significant progress and we expect that it will conclude by the summer of 2008.
A Joint Drafting Committee for Implementation of the U.N. Convention on Independent Guarantees and Standby Letters of Credit, with members from the ULC, the American Law Institute, Canada, and Mexico, has been established to work on implementation of the U.N. Convention, and to assist Canada and Mexico in developing letter of credit law consistent with Uniform Commercial Code Article 5. That committee will have its first meeting in November 2007.
At the request of the U.S. State Department, the ULC has established a Drafting Committee to revise the Uniform Interstate Family Support Act in light of the anticipated final adoption this fall of the Hague Convention on Family Maintenance, which contains significant new provisions concerning the international recovery of child support and other forms of family maintenance. Our colleagues from Canada and Mexico are also collaborating in this effort.
Finally, in the summer of 2007 we concluded the work of the ULC’s first joint project with Canada and Mexico, the Joint Committee to Harmonize North American Law on the Assignment of Receivables in International Trade. This committee worked closely with the U.S. State Department in preparation for the Department’s seeking to obtain U. S. Senate advice and consent to the United Nations Convention on the Assignment of Receivables in International Trade. The Convention, which was adopted by the United Nations General Assembly in 2001, seeks to eliminate the prevailing uncertainties in the legal effectiveness of international receivables financing transactions through the establishment of a set of uniform rules. The Joint Committee also worked toward harmonizing the laws of the three countries in this area and to assure that the national laws were consistent with the Convention.
The ULC recently formed a new Joint Editorial Board (JEB) for International Law. The new JEB will consist of members appointed from the ULC and from the American Bar Association Section on International Law. The primary purpose of the JEB is to facilitate the promulgation of uniform state laws consistent with U.S. laws and international obligations dealing with international and transnational legal matters. One of the first acts of the JEB was to recommend last summer that the ULC work closely with the U.S. State Department to examine the new Hague Convention on Choice of Court Agreements. As a result of that recommendation, the ULC has appointed a Study Committee to make recommendations as to whether the United States should sign this Convention and, if so, how the Convention might best be implemented in ways that are as consistent as possible with state law in the United States. That Committee is expected to make its report early in 2008.
During the meeting of the Uniform Law Conference of Canada, in beautiful Prince Edward Island in early September, we (ULC’s president, Justice Martha Walters of the Oregon Supreme Court, our immediate past president Howard Swibel, and I) had the great pleasure of meeting Laurie Glanfield, Secretary of the Standing Committee of Attorneys General, and Ian Govey, Deputy Secretary of the Australian Attorney-General’s Department. This was an excellent opportunity for us to discuss ways in which we might exchange information and projects on which we might collaborate in the future. We are very much looking forward to further developing these important relationships in the near future.
The Legal, Constitutional and Administrative Review Committee is a multi-party committee of the 52nd Queensland Legislative Assembly with responsibilities regarding administrative review reform, constitutional reform, electoral reform, and legal reform. The legislation establishing the committee requires Ministerial responses to committee recommendations.
Interim evaluation of Hands on Parliament recommendations The committee of the 52nd Parliament tabled its report and findings on an interim evaluation into the implementation of the Hands on Parliament recommendations on 14 November 2007.
In September 2003 the committee of the 50th Parliament tabled its Hands on Parliament report which examined barriers to Aboriginal and Torres Strait Islander peoples’ participation in Queensland’s democratic processes and identified strategies to overcome those barriers and enhance participation.
The Government’s response to the Hands on Parliament report indicated support for, and a willingness to implement, most of the committee’s recommendations. The Government requested the committee undertake an interim evaluation of the implementation and effectiveness of the recommended strategies after the first full electoral cycle.
In 2006 the committee of the 52nd Parliament decided to conduct an interim evaluation and consider whether the strategies adopted were:
• practical, workable and directed towards meeting the Hands on Parliament recommendations; </blockquote>
• and achieving, or likely to achieve, meaningful engagement of Aboriginal peoples and Torres Strait Islanders in democratic processes. </blockquote>
The evaluation process included consideration of:
• information received from the Speaker of the Legislative Assembly, Ministers, statutory office holders and registered political parties regarding strategies adopted to implement the Hands on Parliament recommendations; </blockquote>
• 23 public submissions received in response to a consultation paper issued in April 2007; and</blockquote>
• views and information provided to the committee at workshops held during April and May 2007 in Rockhampton, Palm Island, Abergowrie, Yarrabah, Mareeba, Badu Island, Thursday Island, Mount Isa and Brisbane. </blockquote>
The Accessibility of Administrative Justice
The committee is finalising an inquiry into the accessibility of freedom of information (FOI) and judicial review mechanisms in Queensland. The inquiry began in 2005 when the committee of the 51st Parliament released a discussion paper seeking submissions on the following key issues:
• FOI fees and charges; </blockquote>
• costs associated with proceedings under the Judicial Review Act 1991 (Qld), and concerns relating to self-represented litigants; </blockquote>
• access to available information about government decisions and actions; </blockquote>
• whether a diversity of people can access administrative justice; and</blockquote>
• resolution of genuine grievances about government decisions in an effective and timely way. </blockquote>
The committee received 37 submissions, 36 of which were tabled during 2006.
In April 2006, the committee convened a conference at which participants, who included members of the public, government decision- makers, lawyers, and representatives of community organisations and government- owned corporations, took part in one of three parallel discussions.
The committee of the 51st Parliament was dissolved before it could report on the inquiry. The present committee resolved to report to Parliament on the matters considered by the previous committee and has invited submission on four supplementary issues, namely:
• possible reform regarding administrative appeals; </blockquote>
• possible initiatives regarding the availability of information about administrative justice; </blockquote>
• the scope, if any, for reforms to provide for proportional dispute resolution in Queensland; and</blockquote>
• the publication of details regarding contracts entered into by public sector agencies. </blockquote>
Submissions on the supplementary issues closed on 28 September 2007 and the committee will report in 2008.
Meetings with the Ombudsman and Information Commissioner
The committee has responsibilities under the Ombudsman Act 2001 (Qld) and the Freedom of Information Act 1992 (Qld) that include monitoring, reviewing and reporting on the performance of the functions of the Queensland Ombudsman and the Queensland Information Commissioner.
To fulfil these responsibilities, the committee meets biannually with the Ombudsman and Information Commissioner, usually in May and November of each year. The previous biannual meetings were conducted in May 2007. Report no 58, Meeting with the Queensland Ombudsman on 22 May 2007, and report no 59, Meeting with the Queensland Information Commissioner on 22 May 2007, were tabled in June 2007.
Information on committee inquiries and reports is available at <www.parliament.qld.gov.au/ LCARC> or by contacting the committee’s secretariat on (07) 3406 7307 or at lcarc@ parliament.qld.gov.au.
The Guardianship Review
In October 2005, the Commission received a reference to review aspects of the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld). These Acts regulate substitute decision-making for adults with impaired decision-making capacity.
The Commission’s terms of reference require it to conduct this review in two stages. Stage one, which is now complete, involved an examination of the confidentiality provisions of the guardianship legislation. Those provisions:
• allow the Guardianship and Administration Tribunal (the Tribunal) to make ‘confidentiality orders’ in relation to Tribunal hearings, information and documents received by the Tribunal, and the Tribunal’s decisions and reasons; </blockquote>
• prohibit the publication of information about Tribunal proceedings and the disclosure of the identity of persons involved in those proceedings; and</blockquote>
• impose a duty of confidentiality on people who gain certain personal information through their involvement in the administration of the legislation. </blockquote>
In stage two, the Commission is to review the guardianship legislation more generally.
In July 2006, the Commission published a Discussion Paper, Confidentiality in the Guardianship System: Public Justice, Private Lives. To facilitate the consultation process, the Commission also produced a range of documents in more accessible formats:
• a shorter and independent guide to the Discussion Paper – Public Justice, Private Lives: A Companion Paper; </blockquote>
• two pamphlets setting out the key issues – one prepared specifically for people who may need help with decision-making, and a second prepared for families, friends and advocates; and</blockquote>
• an interactive CD-ROM that incorporated a transcript, as well as a full audio of all images and text. </blockquote>
The Commission held a series of public forums across Queensland, as well as a number of focus group sessions with people interested in, or affected by, the guardianship legislation. Four of these sessions were held with groups of adults who need, or may need, assistance with decision-making. Throughout the review, the Commission also sought feedback from the key stakeholders represented on its Reference Group.
The consultation process for this review was recognised during Disability Action Week 2007, with the Commission receiving the inaugural Human Rights and Justice Award for its inclusive community engagement.
In June 2007, the Commission completed its final report for stage one of the review. The Commission also produced a second volume to that report containing draft legislation that gives effect to its recommendations.
Again, the Commission produced a range of accessible documents to accompany the final report —a shorter, independent guide to the Report, Public Justice, Private Lives: A Companion to the Confidentiality Report, as well as two pamphlets setting out its key findings: one for people who may need help with decision-making, and a second for families, friends and advocates.
The central theme of the Commission’s recommendations is that there should be greater openness in the guardianship system. This will promote accountability and transparency in decision-making, and safeguard the rights and interests of adults with impaired decision-making capacity. This is to be achieved by:
• replacing the current regime of ‘confidentiality orders’ with four new types of orders (collectively called ‘limitation orders’) that better reflect the nature of the decision being made by the Tribunal — namely, adult evidence orders, closure orders, non-publication orders, and confidentiality orders; </blockquote>
• establishing a legislative presumption in favour of openness and requiring serious harm or injustice to be demonstrated before the Tribunal may make a limitation order; </blockquote>
• generally permitting publication of information about Tribunal proceedings, provided the publication does not lead to identification of the adult; and</blockquote>
• retaining the current duty to keep information received when acting under the legislation confidential, but reconceptualising it as a duty to use information appropriately (rather than as a blanket prohibition on disclosure, subject to certain limited exceptions). </blockquote>
The Commission’s report was formally launched on 1 November 2007. When speaking at the launch, the Attorney-General, the Hon Kerry Shine MP, stated that the Government’s intention is to review the Commission’s recommendations and introduce any amendments that might be required in 2008.
Other developments
The Commission’s review of the Peace and Good Behaviour Act 1982 (Qld) is nearing completion. The Commission expects to release its final report, which will include draft legislation, in early 2008.
The final stage of the Uniform Succession Laws Project, which is coordinated by the Commission, is also nearing completion. The final report of the National Committee on the administration of estates is expected to be completed in the first quarter of 2008.
That report will include model administration legislation for the States and Territories.
Abortion
The Victorian Government has given the VLRC just six months to report on legislative options for the decriminalisation of abortion.
The government has asked the commission to:
1. Clarify the existing operation of the law in relation to terminations of pregnancy.
2. Remove from the Crimes Act 1958 offences relating to terminations of pregnancy where performed by a qualified medical practitioner(s).
With regard to:
A. Existing practices in Victoria concerning termination of pregnancy by medical practitioners.
B. Existing legal principles that govern termination practices in Victoria.
C. The Victorian Government's commitment to modernise and clarify the law, and reflect current community standards, without altering current clinical practice.
D. Legislative and regulatory arrangements in other Australian jurisdictions.
The short reporting timeline meant the VLRC had to hit the ground running; it released a brief Information Paper on current law in Victoria and other states as soon as the terms of reference were received.
About 30 consultations were carried out in October and submissions were accepted until 9 November. The commission must report back to the government by 28 March 2007.
Civil Justice
Headed by full-time commissioner, Dr Peter Cashman, the civil justice review is currently working on its final report to government, which is due by 4 March 2008.
The review received a six-month extension on its original September deadline, to allow the VLRC enough time to refine its proposals for reform in consultation with key stakeholders.
Two sets of draft proposals were released for comment in July and September, and the commission received about 30 submissions to the first set and 20 to the second. This was on top of the more than 60 submissions received to the Consultation Paper at the end of 2006.
The VLRC report will concentrate on standards of conduct, disclosure of information, getting to the truth before trial, alternative dispute resolution, expert evidence,class actions, access to justice, self-represented litigantscostscase management, on-going civil justice reform and miscellaneous technical reforms
ART and Adoption
The VLRC made more than 130 recommendations in its Assisted Reproductive Technology and Adoption Final Report, to ensure the best interests of children are upheld by state law.
The recommendations were part of a comprehensive review of the laws governing access to fertility treatment clinics, recognition of parental status, sperm and egg donations, access to information about donors, access to adoption, surrogacy, and posthumous use of gametes.
Legislated principles would guide all decision making, including: putting the interests of the child first; protecting the health and wellbeing of all people involved; a right to information about genetic parents; and no discrimination on grounds of marital status, sexuality, race or religion.
Children born through altruistic surrogacy arrangements and to same-sex couples would have their parents legally recognised under the recommendations.
Instead of barring access to treatment on the grounds of marital status, which was found to be invalid in a Federal Court decision in 2000, the VLRC recommended a presumption against treatment for people with convictions for sexual offences and serious violent offences, as well as people who have had children taken from their care in the past.
The government has announced it will respond to the report, released on 7 June 2007, before the end of 2007.
Bail
The Review of the Bail Act Final Report was tabled in parliament on 10 October 2007, making 157 recommendations for reform.
The major changes involved a plain English rewrite of the Act and the removal of the presumption against bail for certain 'reverse onus' offences.
Reverse onus tests apply to a small number of offences that, although serious, comprise a minority of the overall number of cases before the courts. They include: murder and treason; arson causing death; serious drug offences; aggravated burglary; and indictable offences when a weapon is used.
Throughout our review we heard that the arguments put forward to overcome the unacceptable risk test are also used to address the show cause and exceptional circumstances tests for reverse onus offences.
Decision makers told us that the ultimate issue for them is whether the accused poses an unacceptable risk.
Other recommendations involve: police processes; bail conditions; better consideration for the needs of victims of crime; bail justices; support for marginalised groups; children and young people.
Surveillance in Public Places
Close to 30 roundtables with users and subjects of surveillance were held in 2006 and 2007. These discussions have helped the VLRC tease out people’s definitions of key terms in the project, such as ‘surveillance’ and ‘public places’, as well as understand the reasons behind surveillance being used and current regulation of different practices.
Roundtable participants were broadly grouped into the categories of state government and statutory bodies, police, local government, private corporations and community representatives.
The VLRC has also sought briefing papers from experts in two areas—the consideration of cyberspace as a public place and the impact of anti-terrorism legislation on the control of surveillance.
A Consultation Paper is planned for release in the first half of 2008.
VLRC personnel changes
The commission has a new full-time Chairperson in Professor Neil Rees, who took up his position on 1 June 2007.
Before joining the commission, he was a Professor and Foundation Dean of the Faculty of Law at the University of Newcastle. He has been involved in the establishment of three community legal centres and clinical legal education programs: Springvale (Monash University); Kingsford (University of New South Wales); and Newcastle (University of Newcastle)
Professor Rees has been a member of the New South Wales Administrative Decisions Tribunal, the Mental Health Review Board and the Psychosurgery Review Board and was previously a part-time commissioner of the New South Wales Law Reform Commission.
Full-time commissioner Dr Peter Cashman’s appointment finished on 4 December 2007.
Review of the Law of Homicide
The Law Reform Commission of Western Australia released the Final Report on the Review of the Law of Homicide in Western Australia on 2 November 2007.
The Final Report contains 45 recommendations for reform spanning homicide offences, defences and sentencing. The Commission’s major recommendations include:
• that the offence of infanticide be repealed; </blockquote>
• that the partial defence of provocation be abolished; </blockquote>
• that mandatory life imprisonment be abolished to provide greater flexibility in sentencing for murder; </blockquote>
• that the partial defence of diminished responsibility not be introduced in Western Australia; </blockquote>
• significant reforms to self-defence and the introduction of a partial defence of excessive self-defence</blockquote>
The Commission’s review is perhaps the most comprehensive reference on this area, aiming to ensure that the laws of homicide in Western Australia are principled, clear, consistent and modern. Because of the way the recommendations necessarily interact and interrelate, the Report emphasises the need to view them as a package, which provides a coherent framework for reform of Western Australia’s homicide laws.
To assist in the development of a consistent framework for reform the Commission determined the following seven guiding principles:
• Principle One: Intentional killings – Intentional killing should be distinguished from unintentional killing. </blockquote>
• Principle Two: Lawful Purpose – The only lawful purpose for intentional killing is self- preservation or the protection of others. </blockquote>
• Principle Three: Mental Incapacity – The only other excuses for intentional killing are mental impairment and immature age. </blockquote>
• Principle Four: Culpability and Sentencing – There should be sufficient flexibility in sentencing to reflect the different circumstances of offences and the relative culpability of offenders. </blockquote>
• Principle Five: Simplifying the Law – The law of homicide should be as simple and clear as possible. </blockquote>
• Principle Six: Contemporary Conditions – Reforms to the law of homicide should adequately reflect contemporary circumstances. </blockquote>
• Principle Seven: Removing Bias – There should be no offences or defences that apply only to specific groups of people on the basis of gender or race. </blockquote>
The Commission acknowledges that the implementation of the recommendations as set out in the Report will substantially change the law of Homicide in Westerns Australia.
As a result the Commission has emphasised the need for the government to carry out a review of the practical operation of the laws of homicide after any of the recommendations in the Report have been implemented for five years.
The Final Report on the Review of the Law of Homicide is available on the Commission’s website at www.lrc.justice.wa.gov.au
Compensation for Injurious Affection
The Commission’s Compensation for Injurious Affection reference requires the Commission to inquire into and report upon whether the principles, practices and procedures pertaining to the issues of compensation for injurious affection to land in Western Australia require reform. The Commission is in the process of compiling a detailed Discussion Paper on the area which is expected for release shortly. The Discussion Paper’s release will be followed by a three-month submissions period and a Final Report. Those readers who have an interest in this specialised subject area are encouraged to email the Commission on lrcwa@justice. wa.gov.au to be included on our Discussion Paper distribution list. Submissions from jurisdictions other than Western Australia are welcomed.
Problem-Oriented Courts and Judicial Case Management
The Commission has encountered challenges on its Problem-Oriented Courts reference, not least of which has been the rapid expansion and development of this area of law. This has resulted in the Commission reassessing its project methodology and undertaking a more thorough investigative process across jurisdictions. A background paper outlining the theory that underpins this area of the law has been developed and will be published in the near future. Work on a detailed Discussion Paper has also commenced and will continue into 2008.
Selection, Eligibility and Exemption of Jurors
In September the Commission received a reference to examine and report upon the operation and effectiveness of the system of jury selection. The matter was referred to the Commission as a result of concerns raised about the growing number of people who apply for and are granted exemptions from jury service, or who are disqualified or ineligible to participate on a jury. The consequent effect of these exemptions and disqualifications from jury service is that juries become less representative of the community. In addition to this those who remain eligible for jury service then carry a greater burden to fulfil this important civic duty. The Commission anticipates that following on from a detailed Discussion Paper, a Final Report outlining its recommendations will be published at the end of 2008.
A Review of Coronial Practice in Western Australia
In November the Commission was asked to carry out a Review of Coronial Practice in Western Australia. The Commission has put together a panel of experts to provide advice through out the life of the reference and has engaged specialised skills of Dr Ian Freckelton and Dr Tatum Hands to undertake the project. The Terms of Reference are very board and cover such areas as improvements to the Act; changes to jurisdiction, practices and procedures of the Coroner and the office; improvements to be made in the provision of support for families, friends and others; the provision of investigative, forensic and other services in support of the coronial function; and any other related matter. It is envisaged the project will take several years to complete with detailed consultations to commence in early 2008.
E-news
The Commission’s new and improved website features an e-news subscription service which will inform subscribers when reports and papers are released as well as keeping subscribers up-to-date with the Commission’s activities. The Commission invites reform readers to subscribe to this service. Subscription is free and you can unsubscribe at any time—just follow the prompts on the website: www.lrc.justice.wa.gov.au
Criminal law
During consultation on the Scottish Law Commission's Seventh Programme of Law Reform, which runs from 2005 to the end of 2009, it was suggested that the law on sexual offences was in need of review. Following public, academic and professional concern about two widely-reported rape cases in Scotland in 2004, the Commission was asked by Scottish Ministers to review the law relating to rape and other sexual offences.
The Commission's Discussion Paper on Rape and Other Sexual Offences was published in January 2006, and was followed by a period of public consultation which ended in May 2006. The issues covered in the paper included the need to define consent; the redefinition of 'rape' to cover a wider range of sexual acts and to ensure protection for male and female victims; and enhancing the protection of persons vulnerable to sexual exploitation.
'Rape' is currently defined in Scotland as a man having sexual intercourse with a woman without her consent. However, 'consent' is not defined and juries are expected to apply what they consider to be the ordinary meaning of that word. The discussion paper proposed that the meaning of consent should be defined in statute and that a list of factual situations should be provided to indicate where consent is not present. The list, which would not be exhaustive, would include situations where the victim was subject to violence, including violence against a third party; and where the victim was unconscious or asleep or lacked capacity to consent as a result of drink or drugs.
The discussion paper proposed a redefinition of the physical act constituting the crime of rape to include non-consensual penetration with a penis not only of the vagina but also the anus or mouth of the victim. Other offences proposed included sexual assault by penetration, sexual assault by touching and a new offence of compelling another person to engage in sexual activity.
The Commission also proposed altering the current statutory provisions and common law principles to ensure that protection is given to those who cannot consent to sexual activity (such as young children) and to people with a limited capacity to consent. Such persons include older children, people with a mental disorder and people over whom others hold a position of trust or authority.
The discussion paper emphasised the need for gender equality and proposed that common law and statutory homosexual offences should be replaced by offences which are neutral as to gender and sexual orientation. It also considered arguments for and against the requirement that all the essential facts be proved by corroborated evidence.
The Commission has received a large number of helpful responses to the discussion paper. These have now been analysed and policy is being developed in light of them. We expect to submit a final report, including draft legislation, to Scottish Ministers before the end of 2007.
Insurance law
The Commission is working with the Law Commission for England and Wales on this project.
Insurance law in the United Kingdom has been criticised as outdated and unduly harsh to policyholders.
A joint scoping paper was published in January 2006 to seek views on areas of insurance contract law which should be included within the scope of this project. As a result of the helpful comments submitted in response to that paper, the project will include topics such as misrepresentation, non-disclosure, warranties, insurable interest and unjustifiable delay.
We intend to publish two joint consultation papers, the first of which was published in July 2007. It deals with Misrepresentation, Non-Disclosure and Breach of Warranty by the Insured. The aim is to publish the second paper before the end of 2008.
Limitation in personal injury actions and extinct claims
At the request of Scottish Ministers, the Commission has been undertaking a review of the provisions of the Prescription and Limitation (Scotland) Act 1973 concerning limitation in personal injury actions. In particular, the Commission has been looking at the so-called 'knowledge test' and the judicial discretion to override the limitation period. The project arose because of concern about the way the test operates, particularly in cases involving industrial diseases and the question was raised whether the 1973 Act should be amended to specify factors to which the court may take into account in exercising its discretion.
Scottish Ministers also asked the Commission to review the position of claims for damages in respect of personal injury which had expired as a result of the law of prescription prior to September 1984, when a number of amendments to the 1973 Act came into force. One of those amendments removed personal injury actions from the scope of prescription. This change in the law did not affect claims which had already been extinguished by prescription. The Commission was asked to review the position of such claims following concerns about the position of people, particularly those who claim to have suffered childhood abuse many years ago in various institutions in Scotland, whose claims were extinguished under the previous rules of prescription.
A Discussion Paper (no 132) was published in February 2006, inviting comments by 31 May 2006. We expect to publish our report in December 2007. The Report will include a draft Bill to give effect to the Report's recommendations.
Damages for wrongful death
We received a reference from Scottish Ministers at the end of September 2006 inviting us to review the provisions of the Damages (Scotland) Act 1976 relating to damages recoverable in respect of deaths caused by personal injury and the damages recoverable by relatives of an injured person.
Our Discussion Paper on Damages for Wrongful Death (DP no 135) was published on 1 August 2007 inviting comments by the end of November. The next stage in the project will be to analyse the responses and prepare a report and draft Bill, which we aim to complete in 2008.
Property
The Commission's Report (No 204) on Conversion of Long Leases was published in December 2006. It recommends that tenants of ultra-long leases should be entitled to have their rights converted into ownership. An ultra long lease is a lease which is granted for more than 175 years and which still has more than 100 years to run. The draft Bill included in the report sets out a scheme for the automatic conversion of such leases into ownership.
The Commission is working on a review of the Land Registration (Scotland) Act 1979. This project looks at the difficulties that have arisen in practice with the 1979 Act and considers the need for a conceptual framework to underpin its provisions. A Discussion Paper (No 125) on void and voidable titles, dealing with the policy objectives of a system of registration of title, was published in February 2004. A second Discussion Paper, (No 128) was published in August 2005. This paper looks at the three core issues of registration, rectification and indemnity against the background of the conceptual framework set out in the first paper. A third Discussion Paper (No 130) was published in December 2005. It considers various miscellaneous issues such as servitudes, overriding interests and the powers of the Keeper of the Register. The Commission is now working on the report.
The Commission is also engaged on a project concerning protection of purchasers buying property from insolvent sellers. A discussion paper (No 114) on Sharp v Thomson (1997 SC (HL) 66), which is the leading case in this area, was published in July 2001. One of the main proposals has largely been superseded by Burnett's Trustees v Grainger [2004] UKHL 8; 2004 SC (HL) 19 where the House of Lords declined to apply Sharp v Thomson to ordinary personal insolvency. Section 17 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 has now implemented another of our proposals designed to increase the protection given to bona fide purchasers. Following these developments the Commission hopes to publish its report in December 2007.
Succession
A new project has started on the law of succession. The Commission last reviewed this area 15 years ago although its recommendations have not been implemented. In its view the law does not reflect current social attitudes nor does it cater adequately for the range of family relationships that are common today. A public attitude survey was commissioned and a report of the results 'Attitudes Towards Succession Law: Finding of a Scottish Omnibus Survey' was published by the Scottish Executive in July 2005. The Commission's Discussion Paper on Succession (No 136) was published on 16 August 2007. It contained many proposals for reform on: intestacy where there was a surviving spouse or civil partner, stepchildren's rights on intestacy, and whether and if so how spouses and civil partners, cohabitants, children (including stepchildren) and others should be protected from disinheritance.
Trusts and judicial factors
The Commission is undertaking a wide- ranging review of the law of trusts. The project is being tackled in two phases. The first concentrates on trustees and their powers and duties. Two discussion papers were published in September 2003 as part of this phase—one on Breach of Trust (No 123) and one on apportionment of trust receipts and outgoings (No 124). A third paper dealing with the assumption, resignation and removal of trustees, their powers to administer the trust estate and the role of the courts (No 126) was published in December 2004. The final Phase 1 Discussion Paper, The Nature and the Constitution of Trusts (No 133), was published in October 2006. It considered the dual patrimony theory, the possibility of conferring legal personality on trusts and what juridical acts are required to constitute a trust as between the truster and the trustees/ beneficiaries and as between the truster and third parties. It dealt also with latent trusts of heritable property.
The second phase of the project will cover the variation and termination of trusts, the restraints on accumulation of income, and long-term private trusts. It will also look at trustees' liability to third parties and enforcement of beneficiaries' rights. The Commission published a Report on Variation and Termination of Trusts (no.129) in March 2007 following a Discussion Paper in December 2005. The Report makes several recommendations for removing current obstacles to variations of private trusts and for providing a uniform process for reorganising public trusts.
The Commission's recommendations regarding the investment powers of trustees contained in the Report on Trustees' Powers and Duties (1999, jointly with the Law Commission for England and Wales) have been implemented by the Charities and Trustee Investment (Scotland) Act 2005. Trustees can now invest in any kind of property and also buy land for any purpose.
The Commission is also working on a project concerning the law relating to judicial factors. A judicial factor is an officer appointed by the court to collect, hold and administer property in certain circumstances; for example, there may be a dispute regarding the property, there may be no one else to administer it or there may be alleged maladministration of it. The Commission believes that a radical overhaul of this area of law is necessary because judicial factory is a cumbersome procedure involving disproportionate expense. We have carried out empirical research into the current use of judicial factory and have consulted practitioners experienced in this field. The project has been delayed due to the need to give priority to other work but we hope to be able to publish a discussion paper by the summer of 2008.
Further information about the Scottish Law Commission's work and its publications may be found on its website at www.scotlawcom. gov.uk.
Michael Lugton
Chief Executive
Scottish Law Commission
140 Causewayside
EDINBURGH EH9 1PR
Email: michael.lugton@scotlawcom.gov.uk
Commission contact details –
Tel: + 44 131 668 2131
Tax: + 44 131 662 4900
`Email: info@scotlawcom.gov.uk
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