Second Annual Report
of the
LAW REFORM COMMISSION OF VICTORIA
for the
Year ended 30th June 1986
Ordered by the Legislative Assembly to be printed
MELBOURNE F D ATKINSON GOVERNMENT PRINTER 1985-86
No.l52 Law Reform Commission of Victoria
Report No 5 ANNUAL REPORT
September 1986 THE COMMISSION
COMMISSIONERS-FULL TIME Chairperson Professor Louis Wailer, LLB (Melb), BCL (Oxon), FASSA, (until 4/l2/8S) David St. L. Kelly, BA, LLB (Adel), BCL (Oxon) (from 4/12/s;:;) Deputy Chairperson Dr Jocelynne A. Scutt, LLB (UWA), LLM (Syd), LLM (Mich), MA (UNSW) Dip Juris (Syd), Dip Legal Studies (Cantab) Mr Peter Sallmann LLB (Melb), MSAJ (The Am Uni), M Phi! (Cantab)
COMMISSIONERS-PART TIME Professor Robert Eagleson, PhD (Lond), MA, Dip Ed (Syd) The Hon Mr Justice lames Gobbo, MA (Oxon), BA (Hons) (Melb) Dr Linda Hancock; BA (Mon), PhD (Mon) Ms Susan McCulloch Mr Leigh Masel, LLB (Melb), LLM (Mon) Professor Marcia Neave, LLB (Hons) (Melb) Mr Anthony Smith, LLB (Melb) The Hon Mr Justice Frank Vincent, LLB (Melb) Professor Louis Waller, LLB (Melb), BCL (Oxon), FASSA, (from 4/12/85) Dr Philip Williams, MEc (Mon), PhD (Lond)
OFFICERS OF THE COMMISSION Executive Director: Dr Clyde Croft, LLM (Mon), PhD (Cantab) (until 2/5/86) Research Staff: Ms Alison Champion, PhC, LLB (Hons) (Mon), Research Officer (until 14/3/86) Ms Bronwyn Naylor, BA, LLB (Hons) (Mon), Senior Research Officer Ms Mariette Read, Mr (Leiden, Netherlands), LLB (Melb), Research Officer (until 3/9/85)
11 Mr George Ryan, LLB (Hons) B Corn (Melb), Research Officer (until26/10/85) Mrs Kathy Sanders, BA, Dip Soc Stud, MSW (Hons), (Melb), Research Officer Mrs Loane Skene, LLB (Hons) (Melb), LLM (Mon), Senior Research Officer Secretary: Ms Robin Jackson Librarian: Ms Beth Wilson, BA, LLB (Mon), Grad Dip Lib (RMIT)
ADMINISTRATIVE AND SECRETARIAL STAFF: Ms Debra Bartlett Ms Marie Braden Ms Dorothy Haywood (until 5/3/86) Mrs Margaret McHutchison Ms Pauline Martin Ms Rhonda Moon Ms Elizabeth Russell Mrs Esther Shoueka Ms Patricia Tickner Ms Sandy Ward
lll
The Hon J .H. Kennan M L C Attorney-General Parliament House MELBOURNE 3000.
Dear Attorney-General,
In accordance with Section 20 (5) of the Law Reform Commission Act 1984, we submit this Report to you. The Report relates to the period of the Commission's work from I July 1985 to 30 June 1986. David St. L. Kelly (Chairperson) Robert Eagleson James Gobbo Linda Hancock Susan McCulloch Leigh Masel Marcia N eave Peter Sallmann Anthony Smith Frank Vincent Louis Wailer Philip Williams September 1986.
V
TABLE OF CONTENTS Paragraph Page SUMMARY l. THE LAW REFORM COMMISSION OF VICTORIA Functions of the Commission 1 1 Commission's Office 2 1 Members and Staff 3 2 Divisions of the Commission 28 5 Administration 29 7 Library 30 7 Consultants 31 7 Commission Publications 32 9
2. COMPLETED REFERENCES Homicide-The Sentence for Murder 33 10 Unsworn Statements in Criminal Trials 36 11 The Role of the Jury in Criminal Trials 43 12
3. CURRENT REFERENCES Commercial Sales and Leases of Goods 44 13 Criminal Responsibility and Gross Intoxication 47 13 Corporate Crime 51 14 Homicide 52 14 Land Law 55 15 Medicine Science and the Law 56 15 Informed Consent to Medical Proceedings and 58 IS Operations Gene Modification 60 16 Priorities in Health Spending 62 16 Plain English 63 17 Sexual Offences 65 17 Community Law Reform 66 18
4. TENTH ANNUAL LAW REFORM AGENCIES' CONFERENCE 67 19 5 AUDITOR-GENERAL'S REPORT 21 6. FINANCIAL STATEMENTS 22 7. ORGANISATION CHART 28 APPENDIX :TERMS OF REFERENCE 29
vii
SUMMARY
At the end of the period under report, the Commission was working on two references taken over from the Law Reform Commissioner: Criminal Responsibility and Gross Intoxication Homicide and four new references given to it by the Attorney-General, the Hon J. H. KennanMLC: Commercial Sales and Leases of Goods Medicine, Science and the Law Plain English Sexual Offences. References on Land Law and Occupational Regulation had also been received, but work had not commenced on them. Two reports were published in the period covered by this annual report. Report No 1, The Law of Homicide in Victoria, The Sentence for Murder, recommended that the mandatory life sentence for murder should be replaced by a maximum life sentence. This would enable a judge to impose a period of imprisonment appropriate to the particular crime and to impose a minimum non-parole period during which the offender could not be released. Report No 2, Unsworn Statements in Criminal Trials, recommended that an ac::used person represented by counsel should no longer have the right to make an unsworn statement but should be entitled to give unsworn evidence not subject to cross-examination. That unsworn evidence would be elicited by the putting of questions to the defendant by defence counsel. Unrepresented defendants would retain their right to make an unsworn statement. The Commission's recommendations in the reports on Murder and Unsworn Statements were implemented with minor modifications by the Crimes (Amendment) Act 1986.
lX
1. THE LAW REFORM COMMISSION
FUNCTIONS OF THE COMMISSION
1. The Commission was established by the Law Reform Commission Act 1984. Its functions are: • to examine, report and make recommendations to the Attorney-General in respect of any proposal or matter relating to law reform in Victoria referred to the Commission by the Attorney-General; • to examine, report and make recommendations to the Attorney-General on any matter which the Commission considers raises relatively minor legal issues which are of general community concern if the Commission is satisfied that the examination of that matter will not require a significant deployment of the resources available to the Commission; • to suggest to the Attorney-General that a proposal or matter relating to law reform in Victoria be referred to the Commission by the Attorney General; and • to monitor and co-ordinate law reform activity in Victoria. The Commission must report to the Attorney-General at the end of its work on any reference. It may also make interim reports. The Attorney-General is required to lay the Commission's reports before the Legislative Council and the Legislative Assembly before the expiration of 14 sitting days after their receipt.
COMMISSION'S OFFICE
2. The Commission's office is located on the 7th and 8th floors, 160 Queen Street, Melbourne. The Commission shares a conference room and library facilities with the Victoria Law Foundation.
1 MEMBERS AND STAFF
3. On 30 June 1986, there were thirteen members of the Commission, three of whom were full-time and ten part-time. The Commissioners were as follows:
Full-time members Term Expires David St. L. Kelly 3/12/92 Dr Jocelynne A. Scutt 3/12/87 Mr Peter Sallmann 31/12/88 Part-Time Members Professor Robert Eagleson 31/12/86 The Hon Mr Justice lames Gobbo 3/12/88 Dr Linda Hancock 3/12/88 Ms Susan McCulloch 3/12/88 Mr Leigh Masel 3/12/88 Professor Marcia Neave 31/10/88 Mr Anthony Smith 3/12/88 The Hon Mr Justice Frank Vincent 3/12/88 Professor Louis Waller 3/12/88 Dr Philip Williams 3/12/88
Reappointments-Commissioners 4. Professor Louis Wailer. Professor Waller was appointed first Chairperson of the Law Reform Commission of Victoria when the Commission was established in December 1984. Professor Waller had previously been the Law Reform Commissioner, Victoria, since 1982. He has held the Sir Leo Cussen Chair of Law at Monash University since 1965. He was Dean of the Faculty of Law at Monash University from 1968 to 1970. He was a consultant to the Law Reform Commission of Canada from 1974 to 1975. He has published extensively and been a visiting Professor at a number of overseas universities. He was also the Foundation President of the Victorian Aboriginal Legal Service 1972-7 4. He is a member of the Executive Committee of the Victoria Law Foundation. Professor Waller chaired the Committee to Consider the Social, Ethical and Legal Issues Arising from In-Vitro Fertilisation. The recommendations of that Committee, made in three reports published between 1982 and 1984, were promptly enacted by Parliament. 5. Dr Joce/ynne A. Scuu. Dr Scutt's appointment as Deputy Chairperson was extended until 3 December 1987. She is a lawyer and author. She has studied, researched and lectured in various Australian and overseas jurisdictions. She practised at the New South Wales Bar in 1981-82. She has published extensively in Australia and elsewhere. She was Director of Research at the Legal and Constitutional Committee of the Victorian Parliament. She is a member of the Victoria Law Foundation and pan-time Chairperson of the Social Security Appeals Tribunal. 6. The Hon Mr Justice James Gobbo. Mr Justice Gobbo has been a judge of the Supreme Court of Victoria since 1978. He is co-editor of Cross on Evidence (2nd Aust ed, 1979). From 1969 to 1984, he was a member of the Victoria Law Foundation. He has been involved in a number of social, cultural and community organisations associated with the Italian community and was Chairman of
' Victoria's 150th Anniversary Advisory Panel. He has also lectured in Evidence at the University of Melbourne. 7. Dr Linda Hancock. Dr Hancock is a lecturer in Sociology at the Department of Social and Political Studies at Swinburne Institute. She has been a visiting scholar at overseas universities and has held the position of Chairperson of the Centre of Urban Studies at Swinburne Institute. She has published extensively and provided consulting assistance to the Minister for Community Welfare Services. Her main research interest has been in the area of housing and the impact of the criminal justice system on women. She recently completed a discussion paper for the Inquiry into Prostitution and is Victorian representative in the Australian and New Zealand Society of Criminology. 8. Ms Susan McCulloch. Ms McCulloch is a publisher and journalist. She edited Women Australia and has worked as a freelance journalist for various publications. She is a eo-director of McCulloch Publishers Pty Ltd. She has also participated in the management of a number of art galleries. 9. Mr Leigh Masel. Mr Masel was the inaugural Chairman and a full-time Member of the National Companies and Securities Commission. He was a partner of the law firm Phillips Fox and Masel from 1949 to 1980 and is now a Consultant to that firm. He is a former President of the Law Institute of Victoria and a director of various companies. He is co-author of Credit and Security in Australia (1977). He has represented the Commonwealth of Australia at a number of international conferences on commercial law. 10. Mr Anthony Smith. Mr Smith is a solicitor and has been a partner in the firm of Gillotts since 1966. He is a former President of the Law Institute of Victoria and has been a member of numerous committees of the Law Institute and the Law Council of Australia. He is Chairman of the Media Law Division of the International Bar Association, Deputy Secretary General (Australasia) of the International Bar Association, and an executive member of the Anti-Cancer Council of Victoria. He has also been a member of the Commonwealth Legal Aid Council. He has had extensive experience in the law of defamation and was Chairman of the Defamation Law Reform Committee of the Law Council of Australia. 11. The Hon Mr Justice Frank Vincent. Mr Justice Vincent has been a judge of the Supreme Court of Victoria since 1985. Before his appointment to the Bench, Mr Justice Vincent had an extensive practice in Victoria and in the Northern Territory, particularly in criminal law. He was a member of several law reform committees of the Victorian Bar and a consultant to the Australian Law Reform Commission on several references. He was a member of the Shorter Trials Committee of the Australian Institute of Judicial Administration and was a member of the committee established to consider police powers chaired by the Victorian Director of Public Prosecutions to report on changes to section 460 of the Crimes Act. Mr Justice Vincent was a former member of the Bar Council and Chairman of the Criminal Bar Association.
New Appointments-Commissioners 12. David St. L. Kelly. David St. L. Kelly was appointed Chairperson d the Commission in December 1985. From August 1983 to December 19&5, he wa::. Secretary to the Law (Attorney-General's) Department. Between 19!.::0 and l9~ 3,
3 he was Professor of Law at the University of Adelaide. Between 1976 and 1980, he was a full-time member of the Australian Law Reform Commission, where he led the projects on privacy and the census, insurance contracts, insurance agents and brokers, and consumer insolvency. 13. Professor Robert Eagleson. Professor Eagleson is an Associate Professor of English at Sydney University. He has advised Commonwealth and State Government Departments and private commercial organisations on rewriting their forms in 'plain English'. He has received particular publicity recently for his work in advising the Taxation Department on income tax forms. Professor Eagleson is a past Chairman of the International Federation for the Teaching of English and a past President of the Australian Association for the Teaching of English. He has recently edited a new edition of a Shakespeare Glossary (OUP 1986). 14. Professor Marcia Neave. Professor Neave is a Professor of Law at the University of Adelaide. She was formerly a senior lecturer in law at Melbourne University and Director of Research at the New South Wales Law Reform Commission where she was closely involved in the project on accident compensation. Professor Neave chaired the Inquiry into Prostitution, whose recommendations have been largely accepted by the Government. 15. Mr Peter Sallmann. Mr Sallmann was appointed in January 1986 as a full time Commissioner. A Senior Lecturer in the Legal Studies Department at La Trobe University, Mr Sallmann is a criminologist with wide-ranging interests in criminal justice, criminal procedure and criminal law. He has published extensively and is co-author of Criminal Justice in Australia (OUP 1984}. He edited the Australian and New Zealand Journal of Criminology for four years. He teaches criminology at the Victoria Police Detective Training School. 16. Dr Philip Williams. Or Williams is a Senior Lecturer in the Department of Economics at Melbourne University and teaches Economics of Law in the Law Faculty. He has held positions at Monash University and the Price Commission, London. He has acted as consultant to the Trade Practices Commission, the Australian Broadcasting Corporation and the Australia Council.
Reappointments: Staff of the Commission 17. Ms Bronwyn Nay/or. Ms Naylor was an employee solicitor for eighteen months before she was appointed as a Legal Assistant to the Law Reform Commissioner in September 1982. She was appointed a Research Officer of the Commission when it was established in December 1984 and a Senior Research Officer in September 1985. Ms Naylor is the President of the Women Lawyers' Association. 18. Mrs Loane Skene. Mrs Skene practised as a solicitor for four years in Victoria and England and was a research officer in a law reform commission in Canada for eighteen months. She was appointed a Legal Assistant to the Law Reform Commissioner in July 1982, a Research Officer to the Law Reform Commission in December 1984 and a Senior Research Officer in September 1985. Mrs Skene chaired a Working Party established by the Victorian Association of Alcohol and Drug Agencies to inquire into section l3 of the Alcoholics and Drug-Dependent Persons Act in 1984-86. She has also been a member of several interdepartmental and other government committees in the period of this report.
4 New Appointments: Staff of the Commission 19. Ms Alison Champion. Ms Champion was a pharmacist for sixteen years before studying law at Monash University. She practised as a solicitor for six months and then became a Research Officer to the Inquiry into Prostitution. She was appointed a Research Officer of the Commission in September 1985. 20. Dr Clyde Croft. Or Croft was appointed Executive Director in January 1986. He was formerly Assistant Secretary (Policy Co-ordination} to the Law (Attorney General's) Department. He was instrumental in establishing the National Mortgage Market Corporation and the Australian Centre for International Commercial ArbitratiOn. 21. Ms Robin Jackson. Ms Jackson was former Administrator of the Victorian Social Security Appeals Tribunal. She was appointed Secretary of the Commission in October 1985. 22. Mrs Kathy Sanders. Mrs Sanders lectured in social work at the University of Melbourne for two years and did post-graduate work on the participation of individuals in professional decision-making. Prior to that she practised extensively as a medical social worker. She was appointed a Research Officer in September 1985. 23. Ms Beth Wilson. Ms Wilson, former librarian with Telecom Australia and the Australian Law Librarian Group was appointed as librarian in March 1985. Prior to her appointment, Ms Wilson conducted a national survey of law libraries in Australia which was funded by the Law Foundations of New South Wales and Victoria and the Commonwealth Attorney-General's Department.
Resignations-Staff of the Commission 24. Ms Alison Champion. Ms Champion resigned in March 1986 to become a legal officer in the Law (Attorney-General's} Department. 25. Dr qyde Croft. Dr Croft resigned from the position of Executive Director in May 1986 to become Secretary to the Law (Attorney-General's) Department of the Northern Territory. 26. Ms Mariette Read. Ms Read practised law in Holland for three years and worked as a Law Clerk in Melbourne for one year. She was a research officer of the Commission from 2 April 1984 until she left on maternity leave in May 1985. She resigned in August 1985. 27. Mr George Ryan. Mr Ryan practised as a solicitor for three years before his appointment as a Legal Assistant to the Law Reform Commissioner in 1980. He was appointed a Research Officer to the Commission in December 1984 and resigned in October 1985. Between 1980 and 1985, Mr Ryan worked on the references on Corporate Crime and Unsworn Statements.
DIVISIONS OF THE COMMISSION
28. The composition of the Divisions of the Commission as at 30 June 1986 was as follows:
5 Commercial Sales and Leases of Goods Chairperson D. St. L. Kelly Commissioner-in-Charge of Dr J. A. Scutt Reference: Members: Mr L. Masel Mr A. Smith Dr P. Williams
Criminal Responsibility: Gross Intoxication Chairperson D. St. L. Kelly Commissioner-in-Charge of Dr J. A. Scutt Reference: Members: The Hon Mr Justice J. Gobbo Dr L. Hancock Mr L. Masel Mr P. Sallmann Mr A. Smith The Hon Mr Justice F. Vincent Professor P. L. Wailer
Homicide Chairperson: D. St. L. Kelly Commissioner-in-Charge of Mr P. Sallmann Reference: Members: Dr L. Hancock Dr J .A. Scuu Mr A. Smith The Hon Mr Justice F. Vincent Professor P. L. Waller
Land Law Division not yet constituted.
Medicine, Science and the Law Chairperson: D. St. L. Kelly Commissioner-in-Charge of Professor P.L. Wailer Reference: Members: The Hon Mr Justice J. Gobbo Dr L. Hancock · Mr L. Masel Ms S. McCulloch Professor M. Neave Dr J.A. Scuu The Hon Mr Justice F. Vincent Dr P. Williams
Occupational Regulation
Chairperson and Commissioner- D. St. L. Kelly in-Charge: Member: Dr P. Wilhams
6 Plain English Chairperson: D. St. L. Kelly Commissioner-in-Charge of Professor R. Eagleson Reference: Members: The Hon Mr Justice J. Gobbo Mr L. Masel Professor M. Neave Or J. A. Scutt Mr A. Smith
Sexual Offences Chairperson: D. St. L. Kelly Commissioner-in-Charge of Mr P. Sallmann Reference: Members: Or L. Hancock Ms S. McCulloch Professor M. Neave Dr J. A. Scutt The Hon Mr Justice F. Vincent Professor P.L. Wailer
ADMINISTRATION
29. During the period under report, the Law Reform Commission has expanded and has received a number of new references. The administration of the Commission has been strengthened by the appointment of a Secretary and by the establishment of the office of Executive Director. The Executive Director is responsible to the Chairperson for the research staff of the Commission and for all aspects of personnel and financial administration.
LIBRARY
30. The Commission shares library facilities and a librarian with the Victoria Law Foundation.
CONSULTANTS
31. Section 15 of the Law Reform Commission Act 1984 provides that the Chairperson may, with the approval of the Attorney-General, engage persons having suitable qualifications and experience as consultants to the Commission either in an honorary capacity or for remuneration. The foilowing honorary consultants have been appointed with the approval of the Attorney-General and have assisted the Commission in the year 1985/86:
7 Commercial Sales and Leases of Goods Professor David Allan, Professor of Business Law, University of Melbourne Mr David Bailey, Solicitor Mr S.W. Begg, Solicitor Mr Peter Carroll, Legal Officer, Ministry of Consumer Affairs Mr A.J. Duggan, Senior Lecturer in Law, University of Melbourne Mr Phillip Fox, Solicitor Or Mary Hiscock, Reader in Law, University of Melbourne Professor H. Luntz, Professor of Law, University of Melbourne Mr Laurence Maher, Solicitor Mr David Niven, Legal Officer, Ministry of Consumer Affairs Mr Kevin O'Connor, Director, Policy and Research Division, Law Department Ms Catherine Waiter, Solicitor
Medicine, Science and the Law Professor D.M. Danks, Director, Murdoch Institute for Research into Birth Defects, Royal Children's Hospital Professor R.R.H. Lovell, Chairman, Medical Ethics Committee, National Health and Medical Research Council.
Plain English The Hon Michael Arnold, MLC, Parliament of Victoria Mr Ben Bodna, Deputy Secretary, Corporate Management, Law Department Or Greg Lyons, Assistant Director, Justice Branch, Department of Premier and Cabinet Mr Eamonn Moran, Assistant Chief Parliamentary Counsel, Law Department Or Robert Smith, Government Member, Public Service Board The Hon Haddon Storey, QC, MLC
Sexual Offences Ms Carmel Benjamin, Founding Director of the Court Information Welfare Network Ms Meredith Carter, Solicitor Ms Alison Champion, Research Officer, Policy and Research Division, Law Department His Honour Judge Cullity, County Court Mr Ian Gray, Barrister Ms Christine Haag His Honour Judge Hassett, County Court Mr Ian Heath, Prosecutor for the Queen Detective Senior Sergeant Peter Laidler, Detective Training School, Victoria Police Professor David Lanham, Professor of Law, University of Melbourne Detective Senior Sergeant Heather Loader, Sexual Offences Squad, Victoria Police Mr Richard Read, Prosecutor for the Queen
8 Ms Gay le Thompson, Sexual Offences Division, Office of the Director of Public Prosecutions (Vie) Mr M.A. Tovey, Barrister Mr John Willis, Senior Lecturer, Department of Legal Studies, La Trobe University
COMMISSION PUBLICATIONS
32. Copies of reports to the Attorney-General can be obtained from the Commission after they have been laid before both Houses of Parliament. The Commission also publishes consultative papers dealing with its references. The Commission's publications for the year 1985/86 were as follows:
Reports VLRC l, The Law of Homicide in Victoria The Sentence for Murder (1985) VLRC 2, Unsworn Statements in Criminal Trials (1985) Background Papers VLRC BP I, The Role of the Jury in Criminal Tn"als (1985).
9 2. COMPLETED REFERENCES
HOMICIDE-THE SENTENCE FOR MURDER
33. Report No 1, The Law of Homicide in Victoria- The Sentence for Murder (1985) concerned the mandatory life sentence that was introduced in Victoria when capital punishment was abolished in 1975. Effectively, Life imprisonment meant incarceration for an indeterminate period. Prisoners were not left in prison until they died. Their progress was reviewed by the Adult Parole Board which could recommend release. However, the mandatory life sentence was widely criticised in Victoria and elsewhere because of its absolute nature and its indeterminacy. There are many different types of intentional killing compassionate killings, killings during pub brawls and armed robberies, killings in the course of family arguments, and paid assassinations. A mandatory life sentence does not allow the circumstances of the killing, or the character and possible remorse of the offender, to be taken into account in sentencing. The Commission recommended that the mandatory life sentence should be replaced with a maximum life sentence so that an appropriate period of imprisonment could be imposed by the judge who might also impose a minimum non-parole period during which the offender could not be released. 34. The Commission's specific recommendations were: • That section 3 of the Crimes Act 1958 should be amended to provide that a person convicted of murder shall be liable to imprisonment for a maximum period of the term of the person's natural life. • That the judge imposmg a sentence for murder, whether a term of years or a life sentence, should be empowered at the same time to fix a non parole period in accordance with the provisions for parole (ie minimum terms) governing the sentencing of other offenders. • That when a person has been sentenced to life imprisonment with a non parole period, the Parole Board should, when ordering the release of that person on parole, set a period of not less than five years during which the person is to be under the active supervision of the Parole Board.
10 • That a single judge of the Supreme Court should be empowered to set a non-parole period for each person currently serving a life sentence for murder, upon a report from the Parole Board, the Director-General of Corrections and any other relevant person or body, the decision to be reviewable by the Full Court. 35. Statutory provisions implementing the Commission's recommendations were included in the Crimes (Amendment) Act 1986, which received the Royal Assent on 20 May 1986. The Act incorporates a modification to exclude the operation of remissions on any minimum term set for a person convicted of murder, stating that 'the person must not be released from prison before the expiration of the minimum term'.
UNSWORN STATEMENTS IN CRIMINAL TRIALS
36. Report No 2, Unsworn Statements in Criminal Trials (1985) concerned the right of an accused person to give unsworn evidence in a criminal trial. The advantage to the accused of making an unsworn statement from the dock, rather than giving sworn evidence in the witness box, is that unsworn statements are not subject to cross-examination. Critics of unsworn statements said that such statements encouraged the guilty not to tell the truth, or to attack the reputation of innocent people, free from the risk of damaging cross-examination. Moreover, since the unsworn statement was made at the end of the trial, the defence counsel could, by extensive cross-examination of prosecution witnesses, elicit information to be included in the defendant's unsworn statement. 37. The Australian Law Reform Commission published an interim Report on the Law of Evidence in mid-August 1985, which included an examination of the use of unsworn statements. Unsworn statements were also dil>Cussed in the Report of the Shorter Trials Committee of the Victorian Bar and the Australian Institute of Judicial Administration, published at the end of August 1985. The recommendations of these bodies were considered by the Commission. 38. In the early part of 1985, the Commission conducted a survey in the Supreme Court, the County Court and selected Magistrates' Courts to ascertain the incidence of unsworn statements in criminal trials. The survey is described in the Commission's Annual Report 1984-85. One finding was that in the Supreme and County Courts sworn evidence was given in 31.1% of cases; an unsworn statement was made in 57.4% of cases and in 11.5% of cases the defendant stood silent. In the Magistrates' Courts, an unsworn statement was made in only one of 82 defended cases. Sworn evidence was given by 79.3% of defendants, and 19.5% stood silent. 39. Report No 2, Unsworn Statements in Criminal Trials, was submitted to the Attorney-General in September 1985. The Commission recommended unanimously that the right of an unrepresented defendant to make an unsworn statement should be retained. A majority of the Commission also recommended: • That the right of a represented defendant to make an unsworn statement in a criminal trial in any court should be replaced by a right to give unsworn evidence not subject to cross-examination and the Evidence Act 1958 and Crimes Act 1958 should be amended accordingly.
11 • That such unsworn evidence should be elicited by the putting of questions to the defendant by defence counsel. • That before such unsworn evidence is given, defence counsel should notify the judge of the intention to give such evidence and the judge should inform the jury of the choices open to a defendant and of the implications of those choices. • That where unsworn evidence has been given, the judge should remind the jury of the defendant's choices and their implications at the end of the trial. 40. In her Minority Report, Or Scutt recommended that a represented defendant should be permitted to make a statement on affirmation or oath but should not be subject to cross-examination. A defendant who elected to make such a statement might be charged with perjury if the defendant told lies in the course of that statement. 41. Mr Justice Gobbo and Mr Smith dissented from the recommendations of the majority of the Commission. In their view, a represented defendant should not be permitted to make an unsworn statement or to give evidence not subject to cross-examination. 42. The Commission's recommendations with some modifications were included in the Crimes (Amendment) Act 1986 which received the Royal Assent on 20 May 1986.
THE ROLE OF THE JURY IN CRIMINAL TRIALS
43. Background Paper No l, The Role of the Jury in Cr1.minal Trials (1985) concerned the use of juries particularly in criminal cases. It was principally researched and written by Ms Mariette Read. The aim of the Background Paper was to provide information about the origins and operation of the jury system and to draw attention to aspects which have recently attracted criticism. These included the difficulties juries experience in complicated fraud cases; the high acquittal rates in jury trials; the increasing length and complexity of jury trials, which are partly due to the intricate exclusionary rules of evidence; and the problem of finding impartial jurors in highly publicised cases.
12 3. CURRENT REFERENCES
COMMERCIAL SALES AND LEASES OF GOODS
44. In January 1985, the Attorney-General gave the Law Reform Commission a general reference on the Law on Commercial Sales and Leases of Goods. The Terms of Reference are set out in the Appendix. 45. In its initial work on the reference, the Commisston considered possible amendments to the law concerning commerctal transactions in relation to goods (as opposed to consumer transactions) which might facilitate commerce m Victoria. The Commission considered the New South Wales Law Reform Commtssion's Working Paper on the Sa!e of Goods (1975), the Ontario Law Reform Commission's Report on the Sale of Goods (1979) and otht·r recent law reform proposals. The Vienna Convention on Contracts for the International Sale oj Goods (1980) was also examined. The Commission advised the: Attorney General that, although many of the changes proposed or discussed in other jurisdictions might be considered in Victoria, those changes were not restrictt>d to rommercial sales and leases of goods and general consideration of such questions would not be within the terms of reference. The reference has :101 been withdrawn and further matters may be considered from time to time. 46. Under the general reference on Commercial Sales and Leases of Goods, the Commission was asked by the Attorney-General on 28 August 1985 to advise whether the Hire-Purchase Act 1959 should be repealed, since most of the transactions covered by that Act are now subject to the Credit Act 1984. A report will be presented to the Attorney-General during 1986.
CRIMINAL RESPONSIBILITY AND GROSS INTOXICATION
4 7. The Terms of Reference are set out in the Appendix. This Reference arose out of the decision of the High Court of Australia in R v O'Connor. 1 In that case, case, the High Court held that if a person charged with a criminal offence could
1. !1981) 146CLR64.
13 not be proved beyond reasonable doubt to have acted voluntarily and with a criminal intent when committing a proscribed act, then that person should be acquitted of the crime charged. It made no difference that the reason for the involuntary act or the lack of intent was self-induced gross intoxication. 48. The work undertaken on the reference has been described in earlier Annual Reports of the Law Reform Commissioner and the Law Reform Commission. 2 The Chairperson constituted a Division in December 1985 and appointed Dr Scutt Commissioner-in-Charge of the reference. 49. At the initial meeting of the Division an in-house Research Paper written by Mrs Loane Skene was tabled and discussed. Later meetings included one with psychiatrists and other invited guests to consider the effect of gross intoxication on a person's capacity to form a criminal intent. 50. A report will be presented to the Attorney-General during 1986.
CORPORATE CRIME
51. Extensive research papers were prepared by Mr George Ryan prior to his departure from the Commission. Owing to the priority given to other references, work on this reference has been suspended for the time being.
HOMICIDE
52. In July 1982, the Attorney-General gave to the Law Reform Commissioner a general reference on the law of homicide in Victoria, requesting the Commissioner to consider all or any of the existing proposals for reform of the law of homicide, and to report upon which of those proposals should be implemented and what form that implementation should take. 53. The Law Reform Commissioner published Working Paper No 8, Murder: Mental Element and Punishment, in May 1984. The Working Paper made a number of proposals on the mental element in murder, mercy killing and the punishment for murder. The Commission decided to publish its first report on punishment for murder, to be followed by a report on the mental element in murder. The recommendations on the punishment for murder and their implementation are described in paras 33-35. 54. Work has now commenced on a Discussion Paper on the mental element of both murder and manslaughter (excluding the statutory forms of manslaughter). The Discussion Paper will consider the partial defences of provocation and excessive self-defence which may reduce an offence from murder to manslaughter. Excessive self-defence in particular, has been the subject of judicial concern since the decision in Viro v R. 3 The mental element in involuntary
2. Law Reform Commissioner, Victoria, Tench Annual Report 1983, para 5.1; and Eleventh Annual Report 1984, para 4.1; Law Reform Commission of Victoria, Annual Report 1984-1985.
14 manslaughter, which currently comprises killings by unlawful and dangerous acts, by the intentional infliction of bodily harm, or by gross negligence, will also be examined.
LAND LAW
SS. A reference on Land Law was received in May, 1986. Work on this reference was not commenced during the period under report.
MEDICINE, SCIENCE AND THE LAW
56. On 23 January 1985, the Attorney-General gave the Law Reform Commission a standing reference on Medicine, Science and the Law. The Terms of Reference are set out in the Appendix. 57. The Commission decided to work on the reference by selecting particular topics. Matters chosen for initial consideration are Informed Consent to Medical Procedures and Surgical Operations, Gene Modification and Priorities in Health Funding.
Informed Consent to Medical Procedures and Surgical Operations 58. The House of Lords decision in Sidaway v Board of Governors of the Bethlem Hospital and Others4 raised anew the issue of informed consent which has concerned lawyers and doctors alike. The court held that a doctor need tell a patient only what a reasonable and competent doctor would do in similar circumstances. However, Scarman LJ considered that the standard of disclosure should be what a reasonable patient would see as a significant risk. This suggested move in relation to the 'standard of disclosure' may have implications for decisions in Australian courts and hence for medical practice. It was considered important to clarify the issues. 59. The Commission has been holding a series of symposia during 1986 on Informed Consent. The focus has been on general issues and on the problems of particular groups of patients such as the aged and those who undertake cosmetic operations. At each symposium, invited speakers have presented papers which have formed the basis for discussion among participants invited from a variety of disciplines. The Commission will publish the edited papers presented at the symposia. The program to June 1986 was as follows: 25 February 1986 Informed Consent-an Professor Margaret Somerville Introductory Overview. Faculty of Law and Medicine McGill University
4. {198512 WLR 480.
15 8 April1986 The Structural Conditions Or Neville Hicks of Informed Consent. Dept of Community Medicine University of Adelaide Professor Robert Eagleson Communication. Department of English University of Sydney 13 May 1986 Images and Models-Informed Professor Janice Raymond Consent in relation to operations Women's Studies which change physical form to University ofMassachusetts conform with stereotypes. at Amherst l 0 1une 1986 Informed Consent and the Aged. Or Elizabeth Ozanne Department of Social Studies University of Melbourne A paper on 'The Legal Concept of Informed Consent' was written by Ms Bronwyn Naylor. Other research has been undertaken by Mrs Kathy Sanders. Mrs Sanders is conducting empirical research on actual medical practice concerning informed consent. She is consulting doctors, nurses, medical associations, hospital staff, patients' support groups and others. A discussion paper will be published in 1986.
Gene Modification 60. The second topic for study within the general reference of Medicine, Science and the Law is gene modification. Recombinant DNA technology is said to hold great promise for manufacturing biological chemicals for pharmaceutical, industrial and agricultural purposes, and for human health care by studying and correcting genetic diseases and for producing vaccines. Concerns have been expressed, however, both in Australia and in other countries, about the potential risks associated with the new technology. In particular, there are fears about the possible dangers arising from the deliberate release into the environment of genetically modified organisms and the harm that may be caused to patients and their progeny by gene modification in humans. The protection of ownership rights in gene-modified organisms by patents or other means is not within the study. 61. The Commission has sought information concerning Victorian research involving gene modification, in interviews with leading scientists. Regulations and guidelines in Australia and overseas are being studied and compared. The Commission plans to publish a discussion paper in late 1986.
Priorities in Health Funding 62. There has been some preliminary investigation within the Commission on this subject. A memorandum prepared by Or Scutt was put before a Division meeting on 17 March 1986. The matter was deferred pending further clarification of the issues. A seminar was held on 30 April 1986. Ms Gena Corea, an author and medical researcher, delivered a paper titled 'Determining Priorities in Health Resources'. She addressed the specific area of in vitro fertilisation as a high cost
16 solution to problems of infertility. A further meeting was held with officers of the Health Department, the Commission for the Future and hospital representatives on 6 June 1986. Discussion centred on possible collaboration between the Commission and other bodies in dealing with the issue.
PLAIN ENGLISH
63. This reference was received from the Attorney-General on 10 September 1985. It concerns the language in which legislative and bureaucratic documents are drafted. The Terms of Reference are set out in the Appendix.
64. The project is being led by Professor Robert Eagleson, a part-time Commissioner. Professor Eagleson has been seconded from the University of Sydney to the Victorian Law {Attorney-General's) Department for 1986. He is working in the office of Chief Parliamentary Counsel to advise that office in improving drafting styles and techniques and in implementing the Government's plain ·English policy. He is assisting in the drafting of particular pieces of legislation and advising other Departments on plain English standards and techniques. A draft discussion paper has been prepared by Professor Eagleson and has been discussed at two meetings of the Division by members of the Division and the Commission's Consultants. The discussion paper is to be published in September 1986. It identifies numerous ways in which drafting could be improved. The final report is due in December 1986.
SEXUAL OFFENCES
65. This reference was received from the Attorney-General on 21 October 1985. The Terms of Reference are set out in the Appendix. The work of the Commission concentrates on the sexual offence provisions of the Crimes Act 1958. The reference has been divided into two parts. The first part deals with the substantive, evidentiary and procedural aspects of non-consensual sexual offences (rape and allied offences). The second part deals with the substantive, evidentiary and procedural aspects of other Crimes Act sexual offences. These are basically those dealing with sexual exploitation and abuse of various kinds, particularly offences against children, and consensual sexual crimes.
The Commission is required to complete the reference by 30 June 1987. A report on rape and allied offences will be published early in 1987. A report on the second part of the reference will be published at the end of June 1987. A draft discussion paper on the substantive aspects of rape and allied offences has been prepared and discussed at meetings of the Division and the Commission's Consultants. The paper contains a number of provisional suggestions for .:hangt>s in the law. It is due to be published in September 1986.
17 COMMUNITY LAW REFORM
66. Apart from its work on current references, the Commission has also initiated moves towards an effective Community Law Reform Program. By virtue of section 6 (1) (b) of the Law Reform Commission Act 1984, the Commission may report to the Attorney-General on any matter which the Commission considers raises relatively minor legal issues which are of general community concern if the Commission is satisfied that the examination of those matters will not require a significant deployment of its resources. To facilitate identification of legal anomalies which might be examined and reported on under this heading, the Chairperson has had discussions with the Chief Justice, the Hon Sir John Mcl. Young KCMG, the Chief Judge, His Honour Judge G.R.D. Waldron, the Legal and Constitutional Committee, the County Court Law Reform Committee and the Bar Council Law Review Committee. Further discussions are to be held with the Law Institute, the Universities and other interested groups. It is hoped that the Commission may become a focal point for complaints about anomalies in the law and that it may report on these to the Attorney-General on a regular basis.
18 4. TENTH ANNUAL LAW REFORM AGENCIES' CONFERENCE
67. The Tenth Annual Law Reform Agencies' Conference was held in Melbourne in August 1985. It was hosted jointly by the Law Reform Commission and the Legal and Constitutional Committee of the Parliament. Two papers were presented. Ms Helen Halliday, Policy and Research Branch, Law Department, presented a paper entitled 'Law Reform and Community Involvement'. She referred to her experience of community work with the Victorian Council of Social Service concerning a broad range of matters frequently leading to law reform. In her view, community attitudes should be assessed by widespread consultation and through community participation in the research project. In the last twenty years, the Victorian Government had encouraged community consultation in the preparation of advice and recommendations and had supported self-help groups financially. The second paper 'Law Reform Through Codification', was written by the Hon Mr Justice Kevin Ryan CBE, a judge of the Supreme Court of Queensland and · former member of the Queensland Law Reform Commission. Mr Justice Ryan's paper raised two issues: whether there is a case for reform by codification of at least some parts of the law; and if so, in what circumstances is codification an appropriate method of law reform and in what manner should a code be drafted. Codification is generally regarded as being intended to supersede all previous law, statute and judge-made. However, some codifying statutes in common law countries have expressly preserved the continued application of the common law and others, particularly in the law reform context, contain provisions modifying and reforming existing law. Codification provisions from law reform commissions should not merely restate the law but should contain suggestions for its reform. Mr Justice Ryan suggested that Lord $carman's preference for detailed codification is correct. Judges still have a role in developing the law, particularly in the English court tradition. Law reform bodies must aim for at least some codification in order to simplify, modernise and reform the law. Much of English law is ·a formlt:ss .na$s of decisions and statutes, many of which are inappropriate in contemporary society [and] ... capable of being ascertained only after lengthy research by a small band of experienced practitioners'. Experience in other jurisdictions indicates that codification should not be undertaken lightly.
19 A luncheon hosted by the Law Reform Commission and the Legal and Constitutional Committee of Parliament was addressed by the Federal Attorney General, the Hon Lionel Bowen MHR. The conference dinner was hosted by the Attorney-General, the Hon J.H. Kennan MLC. The Premier, the Hon John Cain MLA, presented the Inaugural Law Reform Oration. 68. As part of the Conference, a law reform research meeting was held. The purpose of the meeting was to consider law reform techniques and research, panicularly from an interdisciplinary perspective. The speakers were the Hon Justice M.D. Kirby CMG President of the New South Wales Court of Appeal and former Chairman of the Australian Law Reform Commission; and Dr Terence W. Beed, former Director ofthe Sample Survey Centre of the University of Sydney and Consultant in Sample Survey Research and Social Information Systems Design. Workshops discussed a hypothetical law reform research topic 'Legal Methods of Reducing Motor Accidents'. The examination of the same problem from three different perspectives was designed to enable those who attended the meeting, who were almost all lawyers, to understand more of the approaches of other disciplines. 69. The second session concerned the determination of values in law reform. The speakers were the Hon Mr Justice Murray Wilcox, Federal Court of Australia; Dr Robyn Rowland, a lecturer in sociology at Deakin University; and Professor Peter Swan, Australian Graduate School of Management, University of New South Wales. The luncheon address was given by Ms Mary Gaudron QC, Solicitor General for New South Wales. 70. The final session concerned 'Industrial Issues of Concern to Legal Researchers'. The speakers were: Mrs Loane Skene, Victorian Law Reform Commission; Mr Charles Ogilvie, Western Australian Law Reform Commission; and Ms Loretta Re, Australian Law Reform Commission. Issues raised included the position of legal researchers in law reform commissions; the lack of tenure and of a career structure; and the lack of involvement in decision-making which many researchers experience. Measures to attract and retain qualified legal researchers were discussed.
20 5. AUDITOR-GENERAL'S REPORT
AUDITOR-GENERAL'S REPORT
The accompanying financial statements comprising balance sheet, statement of income and expenditure, statement of sources and applications of funds and notes to the financial statements of the Law Reform Commission of Victoria have been audited as requi{ed by Section 20 of the Law Reform Commission Act 1984 and in accordance with Australian Auditing Standards. In my opinion, the financial statements present fairly the financial position of the Law Reform Commission as at 30 June 1986 and the results of its operations for the year ended on that date in accordance with the form approved by the Treasurer and in accordance with Australian Accounting Standards.
MELBOURNE R. G. HUMPHRY 29/9/1986 A uditor-.General
21 6. FINANCIALSTATEMENTS
LAW REFORM COMMISSION OF VICTORIA CERTIFICATE In our opinion, the Balance Sheet, the accompanying Statement of Income and Expenditure, and Statement of Sources and Application of Funds and accompanying notes (attached thereto), have been properly drawn up so as to present fairly the financial transactions of the Law Reform Commission of Victoria for the period ended 30 June, 1986 and the financial position of the Commission as at that date. At the date of signing the financial statements we are not aware of any circumstances that would render any particulars included in the statements misleading or inaccurate. R. Jackson 29/9/86 PRINCIPAL ACCOUNTING OFFICER DATE D. St. L. Kelly 29/9/86 CHAIRPERSON DATE Peter Sallmann 29/9/86 COMMISSIONER DATE LAW REFORM COMMISSION OF VICTORIA BALANCE SHEET asat 30 June 1986
Notes: 1986 1985 $ $ $ $ CURRENT ASSETS Cash at bank-Special Account 10 10 585 2 599 Cash at bank-Cheque Account 10046 626 Cash at bank-Access Account 31440 Prepayments 6 717 12 161 Interest Receivable 59 155 15 386 FIXED ASSETS 8 178 198 142 705 Total Assets 237 353 158 091 CURRENT LIABILITIES Provision for Annual Leave 6 so 839 11 206 Provision for Long Service Leave 5 1155 Accrued Expenses 33 829 85 823 15 469 26 675 NON CURRENT LIABILITIES Provision for Long Service Leave 5 10 654 12 972 CAPITAL AND RESERVES Retained Earnings 42 228 19 796 Contributed Capital 2(b) 98 648 140 876 98 648 118 444 Total Equities and Liabilities 237 353 158 091
22 LAW REFORM COMMISSION OF VICTORIA STATEMENT OF INCOME AMD EXPENDITURE for the year ended 30 June 1986 Notes: 1986 1985 $ $ $ $ INCOME Instalments received from the Victoria Law Foundation 9 840 400 315 000 Other Income-Donations 10 13 512 5 291 Interest 2 394 Publications Sold 240 16 146 5 291 856 546 320 291 Less: EXPENDITURE Annual Leave 6 39633 4361 Long Service Leave 5 ( 1 163) 8 446 Rem 76 440 37 231 Salaries and Allowances 3 479 328 190 134 Printing 23 385 2 797 Office Expenses 65 861 25 149 Library Expenses 23 312 4 776 Payroll Tax 24 614 Audit fees 3 880 4 200 Accounting Fees 4 745 Consulting Fees 305 208 Superannuation 4 9 714 2 860 Travelling Expenses 31 142 2 328 Conferences and Meetings 12 020 s 822 Software Expenses 2 784 3 945 Repairs and Maintenance 8 238 Depreciation of Fixed Assets 7 29 876 114 8 238 300 495 SURPLUS FOR THE YEAR 22 432 19 796 RETAINED EARNINGS-I JULY 1985 19 796 RETAINED EARNINGS-30 June 1986 42 228 19 796
23 LAW REFORM COMMISSION OF VICTORIA STATEMENT OF SOURCES AND APPUCATIONS OF FUNDS for the year enJed 30 June 1986
1986 1985 $ $ $ $ SOURCES OF FUNDS Funds from operations (Note I I) Infiow of funds from operations 856 546 320 291 Less: Outflow from operations 765 768 279 450 90 778 40 841 Decrease in Current Assets ~'repayments 5444 Cash at bank 35 062 5444 35 062 Increase in Current Liabilities Accrued expenses 18 360 5 052 114 582 80 955
APPLICATION OF FUNDS Increase in Current Assets Cash at bank 48 846 Prepayments 11 447 Interest receivable 367 --- 49 213 11 447 Increase in Fixed Assets Purchase of fixed assets 65 369 69 508 114 582 80 955
LAW REFORM COMMISSION OF VICTORIA NOTICE TO AND FORMING PART OF THE FINANCIAL STATEMENTS for the year ended 30 June 1986
l. FORMATION OF COMMISSION The Commission was formed under the Law Reform Commission Ace 1984 to replace the Law Reform Commissioner from 4 December 1984. Accordingly, the comparative figures presented in these finacial statements only cover the period of seven months to 30 June 1985. 2. STATEMENT OF ACCOUNTING POLICIES (a) General As from 4 December 1984, the financial statements are prepared on an accrual basis, in accordance with the Law Reform Commission Ace 1984. The financial statements have been prepared on a historical cost basis and are in accordance with the applicable accounting standards issued by the Australian accounting bodies.
24 (b) Contributed Capital Pursuant to section 23 of the Law Reform Commission Act 1984, all assets and liabilities of the Law Reform Commissioner have been vested in the Commission. Details of these items brought to account as at 4 December 1984 are as follows: ASSETS
Cash at Bank 38 287 Fixed Assets Less Accumulated Depreciation 81 435 Prepaid Expenses 714 120 436 Less LIABILITIES Long Service Leave 4 526 Annual Leave 6 845 Accrued Expenses 10 417 21 788 98648
3. SALARIES AND ALLOWANCES The salary and allowances paid to the Chairperson are paid from a special appropriation under the control of the Law Department of Victoria. These payments which amounted to $89,300 for the year ended 30 June, 1986 are not included in the financial statements of the Commission.
4. EMPLOYER'S SUPERANNUATION CONTRIBUTION The Commission is an approved authority for the purpose of the Superannuation Actl958 (Victoria). Accordingly it is required to meet the employer's share of cost of benefits payable pursuant to the Act to eligible employees. The Commission pays the employer contribution to the Law Reform Commission Superannuation Plan managed by the AMP Society.
5. LONG SERVICE LEAVE The provision represents the Commission's estimated liability as at 30 June, 1986 for the Long Service Leave entitlements of its employees. The estimate is based on a qualifying period of ten years. Payments of Long Service Leave are included as expenditure under the item 'salaries' in the Statement of Income and Expenditure. The Commission's policy on the accrual of a liability in respect of Long Service Leave is that it should commence after five years' employment with the Law Reform Commissioner/Law Reform Commission. The portion of the total liability relati;,z r:: employees with more than 10 years service is considered to be current, the balance is considered to be non-current.
25 6. ANNUAL LEAVE The provision represents the Commission's liability for Annual Leave as at 30 June, 1986. The amount is based on the value of actual entitlements as at balance date and includes a leave loading component. Payments of annual leave are included as expenditure under the items 'salaries' in the Statement of Income and Expenditure. The total liability has been shown as current in the Balance Sheet.
7. DEPRECIATION The rates of depreciation prescribed by Income Tax Order No. 1217 have been used in all instances. It has been considered appropriate to use the diminishing value method. In accordance with recommendations from the Department of Management and Budget, Victoria, calculations have been made to the closest possible month.
8. FIXED ASSETS Fixed assets as at 30 June are reported at cost less accumulated depreciation:
Written Accumulated Down 1986 Cost Depreciation Value $ $ $ Office furniture and fittings 75 951 20 673 55 278 Office equipment 47 276 8 235 39 041 Word processing equipment 87 275 31 930 55 345 Miscellaneous items 9 363 I 668 7 695 Partitions (Demountable) 21 237 398 20 839 241 102 904 178 198
··-~··- Wr.itten Accumulated Down
$ $ $ Office furniture and fitting; 68 290 14 266 54 024 Office equ1pment 24 903 4 728 20 175 Word processing equipment 73 177 13 724 59 453 Miscellaneous Items 9 363 310 9 053 175 733 33 028 142 705 ------·---
Ltbrary books and literature, being of insignificant value been expensed in the year of purchase.
26 9. INSTALMENTS RECEIVED FROM VICTORIA LAW FOUNDATION
The revised approved estimate payable by the Victoria Law Foundation in respect of the 1985/86 year was $843 800. This amount has been used as follows:
------1986 1985 $ $ Drawn by Law Reform Commissioner 153 000 Drawn by Law Reform Commission of Victoria 840 400 315 000 Not drawn by 30 June 1986 (not carried over to 1986/87 year, the 3 400 116 730 funding of which is subject to a separate estimate)
843 584 730
10 LAW REFORM COMMISSION-SPECIAL ACCOUNT
The Commission established a Special Account to receive funds gifted by Dr Jocelynne A. Scutt to the Commission, being payments to her in respect of sitting fees outside the Commission. It was determined that funds from this account will be employed for special purposes, such as the Law Reform Commission Essay Prize, purchase of books etc.
11. FUNDS FROM OPERATIONS
$ $ Funds from Operations 90 778 40 841 LESS Depreciation 29 876 8 238 Provision for Annual Leave 39 633 4 361 Provision for Long Service Leave ( 1 163) 8446 Operating Surplus 22 432 19 796
27 ;--1 '"'oc _CHAIRPERSON ---, 0 D. St. L. Kelly ______,::tl Commissioner in Charge Division on Occupational Regulation PART-TIME MEMBER The Hon. Mr Justice J. Gobbo, §; and Member of all Divtsions. Member of Divisions on Criminal Responsibility and Z I PART-TIME Science and the Law and - I PART-TIME..----=:1 MEMBER PULL-TIME MEmnr." MtMtsJ::K V) I L______.> I Prof. P.L. Wailer I Commissioner m PART-TIME MEMBER Dr L. Hancock, . . ::j I Charge of Diviston Member of DivisiOns on Crimmal Responstbihty and 0 on Med1cine Science Gross lntox•cation, Homicide, Medicine Science and the z ana the Law. Law and Sexual Offences. Divistons and Gross Intoxication and ~======~nPART-TIME MEMBER Mr L. Masel, :I: Commercial Sales and Member of Divis1ons on Commercial Sales and Leases, Leases. Member of Med1cinc Science and the Law and Plain English. Divisions on Homicide, Medicine ~~~~~~====~ ~ Science and the Law, PART-TIME MEMBER Ms S. McCulloch, ~~ Plain English and Member of Divisions on Medicine Science and the Law Sexual Offences. and Sexual Offences.
PART-TIME MEMBER Prof. M. Neave, Member of D1visions on Land Law, Medicme SCience and the Law, Plain English and Sexual Offences. HOMICIDE l DIVISION I SEXUAL OFFENCES DIVISIO;-..;
1'1\RT-TIME MEMBER The Hon. Mr Justice F. Vincent, Member of Divisions on Criminal Responsibility and Gross Intoxication, Homicide, Medicine Science and the Law and Sexual Offences.
PART-TIME MEMBER IJr. I' Wilhams, Member of D1visions on Commercial Sales and Leases, Land Law, Medicine Science and the Law, Occupational 1\tgulal!on. APPENDIX: TERMS OF REFERENCE
I. LAW ON COMMERCIAL SALES AND LEASES OF GOODS
Pursuant to Section 6 (I) (a) of the Law Reform Commission Act 1984, I am pleased to refer the following matter to the Commission for inquiry and report. I direct the Commission-
• To inquire into and review the law and practice relating to commercial sales and leases of goods. • To assess the adequacy of the existing law governing commercial sales and leases of goods in the light of -contemporary business conditions -the desirability of simplifying the law so as not to restrict unduly the conduct of business -the desirability of harmonising the law so far as practicable with that contained in the international convention on sale of goods and to make particular reference to the following matters: (i) definition of "sale" and "lease" (ii) the rules of offer and acceptance (iii) privity of contract (iv) implied conditions and warranties (v) manufacturers' express warranties (vi) unconscionability (vii) exclusion clauses (viii) transfer of property in goods (ix) sellers' and buyers' remedies I direct the Commission to report by 1 February, 1987. Dated this 23rd day of January 1985 Jim Kennan, Attorney-General.
29 2. CRIMINAL RESPONSIBILITY : GROSS INTOXICATION
Arising from the decision of the High Court in R v O'Connor (1980) 29 ALR 449, I hereby refer, pursuant to section 8 (b) of the Law Reform Act 1973 the following matters for your investigation and report:- (a) whether the law as expounded by the High Court in O'Connor's Case represents a position whereby in the interests of the community at large, the legislature ought to intervene, and if so, what form that intervention ought to take. (b) whether a significant distinction exists within this area of the law between the common law States and the code States of Queensland, Western Australia and Tasmania.
(c) If such a distinction exists, whether it is desirable that it remain. (d) If the answer to (c) is in the negative, how might that position best be resolved. In conducting your investigation relevant to the above matters I would ask you to hav~ regard to other proposed reforms pertinent to this area of law (in particular report No 12 of your predecessor, insofar as it concerns intoxication).
Dated this 12th day of March 1982 Haddon Storey, Attorney-General 3. HOMICIDE
Pursuant to section 8 (b) of the Law Reform Act 1973 I ask you to:- (a) consider all or any of the existing proposals for reform of the law of homicide; and (b) to report upon which of those proposals should be implemented and what form that implementation should take. As indicated previously, I wish to ensure that the resultant state of the law is not merely more acceptable from a jurisprudential viewpoint, but that it provides the public with the effective protection it is entitled to expect.
Dated this 6th day of May, 1982 John Cain, Attorney-General. 4. LANDLAW
I direct the Commission to examine, report and make recommendations to me on the following, discrete references in relation to the land law. In making its recommendations in relation to the following references, I direct the Commission to ensure that any proposed legislation is appropriate and comprehensive and that its provisions are as simple as possible, and clearly written in plain English with stated objectives. The Commission should also consider all relevant reports and any action taken by the Government to implement them.
30 1. Torrens System Register Book I direct the Commission to examine the principles underlying and the adequacy of the law governing the operation of the current Torrens system register book. In particular, the Commission is to assess the classes of information (including planning matters) which should be required to be included in the register book, and those which may be included optionally. The Commission should also consider whether the present exceptions to indefeasibility (e.g. adverse possession, easements, rights of a tenant in possession and unpaid rates and land tax) are appropriate. I direct the Commission to report by 31 December 1986. 2. Torrens System State Guarantee I direct the Commission to examine the extent to which all or some entries in the Torrens System Register book should be subject to a State guarantee, and the extent of this guarantee. I further direct that this include an examination of the operation of the Assurance Fund, established under the Transfer of Land Act 1958, to assess whether it is working as intended and as efficiently as possible. I direct the Commission to report by 30 June 1987. 3. Restrictive Covenants and Easements I direct the Commission to examine, report and make recommendations for simplifying existing complex general law rules governing restrictive covenants and easements and to examine the desirability of introducing a single 'land obligation' system as has been suggested by the English Law Commission. Consideration should also be given to whether the complex rules for the extinguishment of covenants and casements could be simplified and whether an administrative procedure could be provided for their extinguishment in certain cases. I direct the Commission to report by 31 July 1987. 4. Torrens System Priorities I direct the Commission to examine, report and make recommendations in relation to the provisions of the Transfer of Land Act 1958 which are directed to resolving priorities between competing interests in land, both legal and equitable. I also direct that particular attention be given to the caveat provisiom. of that Act insofar as they relate to the legislative scheme for resolving priorities between competing interests in land, the type of interests which should be caveatable, and procedures for the lapsing and removal of caveats.
I direct the Commission to report by 31 July 1987. 5. Mortgages and Judgment Debts I direct the Commission to examine, report and make recommendations in relation to the effectiveness of provisions of the Transfer of Land Act 1958 and the Property Law Act 1958 for the enforcement of mortgages and judgment debts against land and request proposals for the simplification of the law as part of a coherent legislative scheme in relation to debt recovery. I direct the Commission to report by 31 December 1986.
31 6. Titles Act: Relationship of the Transfer of Land Act 1958 and the Property Law Act 1958 The Property Law Act is the statutory foundation of the land law of Victoria. Many of its provisions expressly apply to Torrens system land, many others apply by implication. However, the application of provisions is unclear in a significant number of cases. I direct the Commission to examine, report and make recommendations on the relationship of the Transfer of Land Act and the Property Law Act provisions with a view to clarifying that relationship, eliminating archaic property law rules, simplifying conveyancing and developing proposals for a uniform legislative scheme regulating land titles (a Titles Act). In the context of this reference, I further direct the Commission to briefly assess the extent to which amendments to both the Transfer of Land Act and the Property Law Act may be necessary to promote the current general law land conversion program. I direct the Commission to report by 31 December 1987 Dated the 1st day of May 1986 Jim Kennan, Attorney-General.
S. MEDICINE, SCIENCE AND THE LAW
I direct the Commission - • To monitor new developments in the field of medicine and science which raise complex ethical and moral issues or affect fundamental human rights. • To advise on the development of procedures to ensure that adequate legal recognition is given to medical and scientific changes. • Where the existing law does not adequately address the issues raised, to recommend changes to existing legislation or the introduction of new legislation to provide adequate controls. • To co-operate with other Australian and overseas law reform bodies in the formulation of proposals. I request the Commission to provide me with reports, as it considers appropriate, from time to time. Dated this 23rd day of January 1985 Jim Kennan, Attorney-GeneraL
6. OCCUPATIONAL REGULATION
I have approved in principle the proposed Joint Inquiry into Occupational Regulation by the Law Reform Commission and the Regulation Review Unit. I therefore refer to the Commission for examination and report: 1. the objectives of legislation concerning occupational regulation;
32 -----·------~----
2. the costs and benefits of existing and proposed occupational regulation systems including the extent to which occupational regulation creates unnecessary restrictions in the labour market; 3. whether fees in respect of services should be regulated and, if so, in what manner; 4. the circumstances in which such regulation should continue with particular reference to: (i) the most desirable form(s) of such regulation, (ii) the extent to which uniformity is desirable in such regulation generally, (iii) the composition of governing or regulatory bodies and appeal mechanisms, (iv) the need to establish and maintain standards of education, training, service and ethics; 5. any other matter incidental to the reference. I direct the Commission to make its report with reference to the legislation listed in the attachment. I also direct the Commission to make its report to me jointly with the Regulation Review Unit. The report should be delivered to me by 31 December 1986. Dated the ll th day of June 1986 Jim Kennan, Attorney-General
Attachment Companies (Administration) Act 1981 Auction Sales Ace 1958 Estate Agents Act 1980 Marine Stores and Old Metals Act 1955 Pawnbrokers Act 1958 Second Hand Dealers Act 1958 Firearms Act 1958 Private Agents Act 1958 Sheep Owners Protection Act 1961
7. PLAIN ENGLISH
I direct the Commission -
To inquire into and review current techniques, principles and practice~: ·:' drafting legislation, legal agreements and those Government forms whicb r-fJert legal rights and obligations, in order to recommend what steps shoc!rl be tak:n to adopt a plain English drafting style.
33 The Commission is to have regard to overseas experience in plain English drafting and plain English legislation. It is to make particular reference to the following matters:- (a) the elements of a plain English drafting style (b) current drafting techniques, principles and practices which are inconsistent with plain English drafting and which impede comprehension (c) whether any changes to common law and statutory maxims, principles or rules of interpretation would be needed to complement the adoption of a plain English drafting style. (d) how computer technology can be applied to assist in introducing plain English into legislation and Government documents. (e) the identification of a strategy for the implementation of plain English in legislation and Government documents (f) whether legislation should be introduced requiring certain categories of agreements and documents to be written in plain English, and if so, the desirable content of these laws (g) whether plain English drafting should be incorporated into law courses, and if so, the desirable content. I direct the Commission to report by 31st December 1986. Dated the lOth day of September 1985 Jim Kennan, Attorney-General.
8. SEXUAL OFFENCES
Pursuant to section 6 (1) (a) of the Law Reform Commission Act 1984, I direct the Commission- (i) to review the law relating to sexual offences in Victoria, in particular the adequacy of the operation in practice of the amendments to the law made by the Crimes {Sexual Offences) Act 1980; and (ii) to recommend what, if any, reforms should be made. I direct the Commission to report not later than 30th June 1987 Dated the 21st day of October 198 5 J im Kennan, Attorney-General.
F D Atkinson Government Printer Melbourne