[1985] Reform 31 whether persons who hold offices of profit give orders to Police Constables?’, October under the Crown, or have contracts with the 1984). In an article in the Guardian, the Government, can be Members of Parliament. Shadow Minister for Health, Michael Meacher Following the report of a Select Committee in MP, said in relation to the coal strike: ‘What we 1982, the Acts Amendment and Repeal (Dis­ have actually seen is police directed all over the qualification for Parliament) Bill has now been country without the agreement of, and indeed introduced to implement the report. against the will of, elected police authorities. In effect, a national police force has emerged, Two other Bills implement earlier reports on using para-military tactics’ (19 October 1984). Trusts and the Administration of Estates. The Administration Amendment Bill completes the In the United Kingdom there are a great num­ implementation of the Commission’s report on ber of police forces, each under the charge of Distribution on Intestacy (Project No 34 the Chief Constable. Chief Constables can be Part I), most of the recommendations in which appointed and dismissed by local police were implemented in 1976. The Acts Amend­ authorities subject to the Home Secretary’s ap­ ment (Insolvent Estates) Bill implements the proval. The police authority can also call for re­ commission’s report on the Administration of ports, question the Chief Constable and disci­ Deceased Insolvent Estates (Project No 34 pline him for ordinary disciplinary offences. Part III). The order of application of assets in But can it influence operational decisions or, in the case of solvent estates is to be dealt with in a these matters is he independent? Clayton and future report. The Fatal Accidents Amendment Tomlinson argue that the so-called doctrine of Bill, the Juries Amendment Bill and the Re­ operational independence is a furphy, albiet a straint of Debtors Bill implement, respectively, widely accepted one. They say that the doctrine the Commission’s reports on Fatal Accidents has no direct legal support and is historically (Project No 66), Exemption from Jury Service anomalous and out of line with long-standing (Project No 72), and the Absconding Debtors constitutional convention. They point to con­ Act (Project No 73). The Bail Amendment Bill, trol of the police until the 19th Century ‘by the which amends the Bail Act 1982 (which had not local gentry in their guise as Justice of the been proclaimed) brings the provisions in the Peace’ (Guardian 22 October 1984). They note earlier Bill into line with the Commission’s re­ that the Greater Manchester Chief Constable port on Bail (Project No 64). All these Bills has now asked for High Court clarification of have passed both Houses and now await assent. his relationship with his police authority. Al­ though in Australia the organization of police Other Commission reports shortly to be imple­ forces is rather different, the issue of operation­ mented include the report on Section 2 of the al independence is no less critical. For develop­ Gaming Act 1845 (Project No 58), dealing with ments in Australia, see above p 8. the enforceability of gambling debts, and those on Strata Titles (Project No 56) and Associa­ ■ stop and search. A Draft Code of Practice re­ tions Incorporation Act (Project No 21). The cently issued by the UK Office indicates con­ Occupiers’ Liability Bill, on which the Commis­ cern about the use of ‘stop and search’ powers sion was informally consulted, will also soon be by the police. It makes the point that over-use introduced into Parliament. of such powers is likely to be counter­ productive, especially in that it leads to a mis­ odds and ends trust of police among the community. The ■ the police. The constitutional position of the document spells out the notion of ‘reasonable police is an issue which has come to the fore­ suspicion’ as a criterion for stopping and front in the current miners’ strike in the United searching a suspect. In particular, it indicates Kingdom. It is explored in an article by that reasonable suspicion should not be based Richard Clayton and Hugh Tomlinson in the on the fact that a person belongs to a group New Law Journal (‘Can Police Committees amongst which arrests for certain types of of­ [1985] Reform 32 fences are common. Appearance or race cannot tive. In the words of one of the Guardian’s legal be a ground for stopping and searching a per­ correspondents, Malcolm Dean, about the son. The degree of suspicion must be as high as European Commission on Human Rights: ‘No that required to arrest a person without war­ institution has done more to extend civil liber­ rant. In ALRC 2, Criminal Investigation, the ties in the UK in the last two decades than the Australian Law Reform Commission recom­ European Commission backed up by the Euro­ mended that police have the power to stop, pean Court of Human Rights just across the search and detain persons reasonably suspected road in Strasbourg’ (Guardian, 24 October, of carrying anything stolen, or unlawfully ob­ 1984). Issues taken to the Commission or the tained, or where there are reasonable grounds Court in recent times have included: to suspect that there may be found an offensive weapon or something which is the fruit of a • the use of plastic and rubber bullets by serious crime (ie one punishable by more than the UK in Northern Ireland and the use six months imprisonment), the means by which of cruel and degrading punishment/ it was committed, or material evidence to prove torture by the British against detainees; its commission. The UK Code indicates the • the rights of disabled servicemen to sue need to more closely define ‘reasonable sus­ the British Government rather than take picion’. See above p 31. a pension; • prisoners’ rights of access to lawyers and ■ inter-departmental committees. Before re­ the courts ; tiring as Chairman of the Australian Law Re­ • judicial protection of mental patients; form Commission Justice Michael Kirby sug­ • criminal sanctions against homosexuals; gested to the Attorney-General that the Com­ and mission be represented on inter-departmental • corporal punishment in schools. committees considering the reports of the Com­ mission. Senator Gareth Evans, the then According to Malcolm Deans: ‘The British Attorney-General, agreed to the proposal that Government is fed up with being Europe’s in future, representatives of the Commission “worst offender”. Some 80 cases have been will be invited to attend inter-departmental declared admissible against the UK — twice as committees as part of the representation for the many as any other State.’ Mr Deans adds the Attorney-General’s Department. This will en­ qualification though that 4 of the 21 member sure that IDC’s are more fully briefed and States of the European Commission do not al­ should reduce delays in the implementation of low individuals to petition the Commission as the Commission’s proposals. See Justice the United Kingdom does. Kirby’s comments above p 2. Similar rights and guarantees to those in the European Convention on Human Rights are set ■ the impact of international law on domestic law. out in the International Covenant on Civil and Propinquity is everything in international affairs as in love Political Rights which has been ratified by affairs. Australia. However the availability of a con­ Arthur Calwell in Colin Bingham ed. ‘Wit and Wisdom’, venient forum to which individual petitions can p 74. be taken distinguishes the situation in the Uni­ ted Kingdom from Australia. Nevertheless, it Except for its impact on Australian constitu­ might be that Australian lawyers should be tional interpretaion, many black letter lawyers paying greater attention than they do to the regard international law as being as irrelevant provisions of international instruments to as it is esoteric. While the impact on Australian which Australia is a party. domestic law to date of international law has not been sufficient to shatter that illusion, devel­ ■ standing committee of attorneys-general. The opments in the United Kingdom are instruc­ case for uniform action on law reform has been [1985] Reform 33 >ften imade (eg [1983] Reform 102-3, 142-5 and Significant uniform legislation has been en­ ee abowe p 2). Reports of the Australian Law acted or proposed in two areas as a result of (eformi Commission have repeatedly stressed Standing Committee initiatives. Uniform legis­ he hop3e that they might be utilised as models lation facilitating the interstate transfer of pris­ or actiion by State Legislatures. Other forces oners for welfare or compassionate reasons, or re at vwork in this area, notably the Standing for the purpose of their giving evidence at trials, rommiittee of Attorneys-General. Meeting commenced in July 1984. Also, uniform legisla­ [uarterlly, the Standing Committee considers tion facilitating the registration of parole orders natters ; which may be suitable for uniform in other States, and subsequent control over egislatiive action by the States (being those mat­ parolees, commenced in May 1984. Agreement ers rescerved for the States) and discusses the has also been reached on legislation providing mplicaitions of Australia’s ratification of, or ac- for the issue and execution of search warrants ession to, various international agreements, in one State or Territory to assist criminal in­ opics discussed at the Standing Committee vestigations elsewhere. Such legislation has al­ neetingg at Darwin in August 1984 included: ready been enacted in the ACT. This legislation will undoubtedly prove useful in the fight • tthe uniform defamation law proposals: against organised and other crime, which cdiscussions with professional groups are knows no boundaries. ccontinuing and a final decision on this vvexing matter has been deferred; ■ survey up-date. Survey work in both the Con­ • tthe progress made to enable Australia to tempt and Matrimonial Property References rratify the Hague Convention on the has reached the stage where results will shortly (Civil Aspects of International Child Ab- be available. cdiuction: legislation is now being pre- ppared to enable this to occur; In Matrimonial Property, the Institute of Fam­ • coutstanding matters concerning the pro- ily Studies has completed the very large task of pposed ratification of the Hague Conven­ coding and entering the results of the 800-odd tion on International Access to Justice: detailed interviews conducted in Victoria on tthe Convention provides for a number the economic consequences of divorce. A team cof legal aid and procedural matters in of researchers at the Institute is at work on the ccivil proceedings; analysis of the survey date, and expect to pres­ • aa recommendation of the Australian In- ent a draft report to the Commission by Febru­ sstitute of Multicultural Affairs concern­ ary, 1985. ing disadvantages for persons of non- EE nglish speaking background within the The Commission has completed its own surveys ldegal system, suggesting a national study of property cases in the Family Courts. Thanks cof the circumstances in which inter- to the generous co-operation of the Judges and ppireters are used, followed by formula­ Registrars of the Court, details have been gath­ tion of principles for uniform practice in ered on a total of some 750 property cases of tlhtis area: the Attorneys will investigate various kinds. All data have been coded, and aand report on practices within their re- results are being analyzed using the computer sspective legal systems; facilities of the University of Sydney. • ddevelopments in commercial arbitra­ tion; In Contempt, response rates of over 60 percent • proposals aimed at securing the legal have been achieved in both the Judges’ and the sstatus of transexuals: particular matters Magistrates’ surveys — a pleasing result. There irniclude surgical practices and pro­ has been a good response, too, to the cedures, marriage provisions and specialized questionnaire on contempt dis­ aimendment of official documents such tributed to Judges of the Family Court. Com­ aas; birth certificates. mission staff are also satisfied with the response [1985] Reform 34 to date to the survey of Federal tribunals and assignment of adults remains a contentious commissions. issue in Australia, and reform along the lines of that which has occurred overseas seems a fair All replies to the Judges’ questionnaires have way off. P 38 been coded, and analysis of the results is now under way. Coding of the Magistrates’ survey is ■ foreign state immunity. On 10 October 1984 well advanced. ALRC 24, Report on Foreign State Immunity, was tabled in Federal Parliament by the then ■ futures trading. The Ministerial Council for Attorney-General, Senator Gareth Evans, QC. Companies and Securitites has released draft The 168 page report includes the Commission’s legislation to regulate futures trading in Austra­ report recommending draft legislation, a draft lia. The Council has agreed to set aside 3 bill, and an explanatory memorandum to ac­ months to allow for full public discussion of the company the bill. The ALRC’s recommend­ proposals. The need for national regulation had ations are intended to restrict the scope of the become obvious after the collapse of a series of immunity which historically the common law brokers who were not members of the Sydney allowed to foreign states from being sued in Futures Exchange. civil actions in Australian courts. Under the j proposals, foreign states will not be entitled to ■ transexuals and law. A recent report in the immunity in suits relating to New Law Journal highlights the legal difficul­ ties faced by people who manage to surmount • commercial transactions (including all the long waiting time and the financial and so­ contracts for the supply of goods or ser­ cial barriers to having their physical attributes vices, or for the provision of finance); modified to align with what they believe to be • torts committed within Australia causing their actual or emotional gender. The difficul­ death, personal injury, or damage to tan­ ties include: gible property; • the ownership or use of real property • an inability to have gender altered on a situated in Australia; j birth certificate in line with the persons new sexuality; and a number of other matters. Provision is also ! • difficulty in becoming legally married to made for foreign states to waive their remaining ! a person of their ‘original’ sex; immunities, for execution against state-owned • the risk, particularly for male-to-female property in use for commercial purposes, and transsexuals, of being placed in all-male for service of writs and other documents on for­ prisons, and whilst in prison to have eign states. Broadly the recommended legisla­ hormone treatment discontinued. tion is similar to legislation which during the last decade has come into operation in the Uni­ In West Germany, France, and some parts of ted States, United Kingdom, Singapore, Pakis­ America and Canada these legal barriers do not tan, South Africa and Canada. exist. Although the article does not state how many people are involved, it indicates that it ■ class actions. Justice Andrew Rogers who is may be many thousands, and that as many as 1 in charge of the commercial list in the New in 200 members of the public may have a gen­ South Wales Supreme Court said in November der identity problem. The Standing Committee that it was his duty to alert legislators to the ex­ of Attorneys-General has recently been giving tent and gravity of legal and social problems consideration to these problems. After several posed by asbestos-related diseases. He said that celebrated cases involving the sexual reassign­ the proper administration of justice would ‘ben­ ment of young children of ambiguous sexuality efit immensely from legislative steps to avoid at birth, there seems to be some measure of sup­ the avalanche of ... litigation which threatens port for changes to the law. However, the re­ to overwhelm us all’. Justice Rogers said that 11985] Reform 35 the problems were of such a magnitude that man of the Australian Law Reform Commis­ legislatures ought to consider whether a special sion. scheme should be devised ‘to determine, on the one hand, the entitlement of those shown to be Senator Evans said that the OECD initiative suffering absestos-related diseases and, on the arose from the knowledge that differences in other, to apportion financial liability amongst national legislation within OECD member those with an interest, whether as producers, countries could put barriers in the way of the manufacturers, suppliers or insurers’. free flow of data across country boundaries, causing disruption in the business sector of the It is only with Parliamentary intervention that the community and possible interference in trade, community can hope to save the tremendous expen­ particularly in areas such as banking and in­ diture of time and energy on legal proceedings surance. The Guidelines are intended to har­ which, whilst they will no doubt in the fullness of monise privacy protection laws and practices time throw up legally correct results, because of amongst member countries by establishing problems of lapse of time and technical knowledge, may not meet the justice and exigencies of the social minimum standards to be applied in handling problems that confroint the community. personal information. These standards relate to the collection, quality, use, disclosure, registra­ tion and security of personal information and Justice Rogers was giving a preliminary judg­ provide that individuals should have a right of ment on the procedures to be followed in the access to information about themselves. hearing of claims against an insurance com­ pany by four companies in the asbestos indus­ Senator Evans noted that the Australian Law try over injuries allegedly caused as a result of Reform Commission’s report on Privacy asbestos. Justice Rogers said the questions in­ (ALRC 22) recommended that legislation be volved in the case were of‘great social and legal enacted for the Commonwealth public sector complexity’. He said he was aware that the Fed­ and for the private sector in the Territories (ex­ eral and New South Wales Parliaments had ap­ cluding the Northern Territory and Norfolk pointed select committees to inquire into the Island) to establish, amongst other things, cer­ general topic of asbestos. The Australian Law tain statutory privacy principles based on the Reform Commission work on Class Actions is OECD Guidelines. Senator Evans said that the also relevant to resolution of the sort of claim to Government had been considering the Law Re­ which Justice Rogers referred. form Commission’s Privacy Report and that he hoped to introduce legislation based on its ■ adherence to oecd privacy guidelines. Shortly recommendations during the Autumn 1985 Par­ before he relinquished that portfolio the Feder­ liamentary Sittings. al Attorney-General Senator Gareth Evans an­ nounced that Australia would formally adhere Senator Evans said that the Federal Govern­ to the Organisation for Economic Co-operation ment commended to the States and the private and Development Guidelines governing the sector the observance of the basic principles protection of privacy and transborder flows of underlying those Guidelines. personal data. His announcement was on Human Rights Day, 10 December 1984. Sena­ letters to the editor tor Evans said that the Guidelines attempt to on the death penalty. Senator Alan Missen, balance the protection of an individual’s priv­ Chairman of the Parliamentary Group of Am­ acy with the advancement of free flows of per­ nesty International wrote to the editors of Re­ sonal data across international boundaries. The form in relation to the item on the abolition of Guidelines, adopted by the Council of the the death penalty in WA, [1984] Reform 36, OECD on 23 September 1980, were developed pointing out that vestiges of the death penalty by a committee of experts under the chairman­ regrettably remain on the statute books in Aust­ ship of Justice MD Kirby while he was Chair­ ralia. Reform wholeheartedly endorses these