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Second Annual Report VICTORIA 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.
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