Family violence in domestic homicides: a case study of women who killed intimate partners post-legislative reform in Victoria, Australia

This article examines the impact of legislative reforms enacted in 2005 in Victoria, Australia, on legal responses to women charged with murder for killing their intimate partner. The reforms provided for a broader understanding of the context of family violence to be considered in such cases, but we found little evidence of this in practice. This is partly attributable to persistent misconceptions among the legal profession about family violence and why women may believe it necessary to kill a partner. We recommend specialized training for legal professionals and increased use of family violence evidence to help ensure women's claims of self-defense receive appropriate responses from Victorian courts.

Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

RE Patrick & the rights and responsibilities of sperm donor fathers in Australian family law

In the matter of Re Patrick, Guest J of the Family Court of Australia held that a sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child to the extent that this was in the child's best interests. However, his Honour also held that due to the way in which particular provisions of the Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the "parent" of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, the authors will first explore the facts and decision in Re Patrick, and then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' under the Act.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

Rape in Victoria as a crime of absolute liability : a departure from both precedent and progressivism

In recent decades, a disturbing trend has emerged in Victoria and elsewhere that has witnessed the emergence of statutory rules that accord preferential treatment to prosecutors and complainants in instances where allegations of rape are made. This article examines not only the manifestations of such treatment in the form of Victorian crime legislation, but the means by which the statutory crime of rape in Victoria has been transformed into an offence which, though technically one of mens rea, can effectively be prosecuted as an offence of absolute liability. The piece concludes with a discussion of the likely reasons for this trend as well as the implications of allowing such a serious offence to be prosecuted as one of absolute liability.

First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing

Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependents? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, those who have made a positive contribution to society, or who have dependents more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses offenders to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependents and if imprisoning them is likely to cause harm to their dependents. Conferring asentencing discount to first-time offenders and those withdependents does not license them to commit crime or unjustifiablyencroach on the proportionality principle. Rather, it recognizes thedifferent layers of the legal system and the reality that sentencinglaw should not reflexively overwhelm broader maxims of justice,including the principle that innocent people should not suffer. Thisarticle argues that fundamental legislative reform is necessary toproperly reflect the role that the profile of offenders should have inthe sentencing regime.

Dissected debt : developing a better legislative response to FCT v Myer Emporium Ltd

After many decades of actual and proposed reform, Australia's rules for the taxation of debt arrangements remain deeply flawed. A notable problem is the absence of appropriate rules for dissected debt arrangements, where a creditor dissects a debt into interest and principal
repayment components and disposes of one or both of these separately, as occurred in the leading case ofFCT v Myer Emporium Ltd. The knee-jerk reaction to Myer by the High Court and the legislature is a model of bad tax policy and bad tax law. The approach adopted overseas, using the United States as the clearest example, is a logical one for Australia to follow.

Selection, exclusion and assimilation: the project lambert of 1931 on the reform of French immigration policy

The unemployment crisis of 1926-7 focused attention onto the question of immigration. Historians of this period have generally focused on the crisis of public policy and popular antipathies towards foreigners; more recently historians have become attuned to voices of racism. Less attention has been paid to attempts to redress the policy weaknesses through a new legislative regime on immigration. This paper reviews one such proposal, made by Charles Lambert, a deputy from the Rhone, in 1931. Instrumental in a revision of the naturalization law in 1927 to encourage the assimilation of foreigners through the acquisition of French citizenship, Lambert proposed a comprehensive statute on immigration to select “desirable” foreigners and exclude the “undesirables” to promote the assimilation of the “better” elements. The paper argues that his rationale betrays a profound fear of mounting French weakness in the face of economic and demographic decline, and grave anxieties for the future health of the French nation.

Australian dental policy reform and the use of dental therapists and hygienists

Oral diseases including dental caries and periodontal disease are among the most prevalent and costly diseases in Australia today. Around 5.4% of Australia’s health dollar is spent on dental services totalling around $2.6 billion, 84% of which are delivered through the private sector (AIHW 2001). The other 16% is spent providing public sector services in varied and inadequate ways. While disease rates among school children have declined significantly in the past 20 years the gains made among children are not flowing on to adult dentitions and our aging population will place increasing demands on an inadequate system into the future (AHMAC 2001). Around 50% of adults do not received regular care and this has implications for widening health inequalities as the greatest burden falls on lower income groups (AIHW DSRU 2001). The National Competition Policy agenda has initiated, Australia-wide, reviews of dental legislation applying to delivery of services by dentists, dental specialists, dental therapists and hygienists and dental technicians and prosthetists. The review of the Victorian Dentists Act 1972, was completed first in 1999, followed by the other Australian states with Queensland, the ACT and the Northern Territory still developing legislation. One of the objectives of the new Victorian Act is to ‘…promote access to dental care’. This study has grown out of the need to know more about how dental therapists and hygienists might be utilised to achieve this and the legislative frameworks that could enable such roles. This study used qualitative methods to explore dental health policy making associated with strategies that may increase access to dental care using dental therapists and hygienists. The study used a multiple case study design to critically examine the dental policy development process around the Review of the Dentists Act 1972 in Victoria; to assess legislative and regulatory dental policy reforms in other states in Australia and to conduct a comparative analysis of dental health policy as it relates to dental auxiliary practice internationally. Data collection has involved (I) semi-structured interviews with key participants and stakeholders in the policy development processes in Victoria, interstate and overseas, and (ii) analysis of documentary data sources. The study has taken a grounded theory approach whereby theoretical issues that emerged from the Victorian case study were further developed and challenged in the subsequent interstate and international case studies. A component of this study has required the development of indicators in regulatory models for dental hygienists and therapists that will increase access to dental care for the community. These indicators have been used to analyse regulation reform and the likely impacts in each setting. Despite evidence of need, evidence of the effectiveness and efficiency of dental therapists and hygienists, and the National Competition Policy agenda of increasing efficiency, the legislation reviews have mostly produces only minor changes. Results show that almost all Australian states have regulated dental therapists and hygienists in more prescriptive ways than they do dentists. The study has found that dental policy making is still dominated by the views of private practice dentists under elitist models that largely protect dentist authority, autonomy and sovereignty. The influence of dentist professional dominance has meant that governments have been reluctant to make sweeping changes. The study has demonstrated alternative models of regulation for dental therapists and hygienists, which would allow wider utilisation of their skills, more effective use of public sector funding, increased access to services and a grater focus on preventive care. In the light of theses outcomes, there is a need to continue to advocate for changes that will increase the public health focus of oral health care.

A.R.T., surrogacy and legal parentage : a comparative legislative review

This is one of three Occasional Papers published by the Victorian Law Reform Commission as part of the Commission's work on assisted reproduction and adoption. A central issue which arises in the context of assisted reproduction is how to recognise and protect the best interests of children who are conceived through assisted reproduction. The three Occasional Papers deal with different aspects of this question. This Paper examines how laws in the other Australian states, and in the United States, United Kingdom and Canada regulate access to assisted reproduction, control the use of surrogacy and deal with issues relating to parentage of children conceived through assisted reproduction. Generally, this legislation gives priority to protecting the best interests of children, but the way in which this is done varies considerably.

Intellectual property law in Southeast Asia : Recent legislative and institutional developments

Over the last few decades, countries belonging to the Association of Southeast Asian Nations (ASEAN) all had to revise their intellectual property systems. These revisions resulted at first from bilateral pressure of major trading partners such as the US and EU, then from the WTO-TRIPS Agreement and more recently from bilateral Free Trade Agreements. To observe the IP developments in ASEAN over this period is interesting, because this group of countries covers developed (Singapore), developing as well as least developed countries. All countries had to reform their outdated laws from the colonial era in very short time. However, in comparison to the early 1980s, important differences with regards to intellectual property policies have emerged in recent years.

This article will briefly sketch the developments in individual ASEAN countries and after that examine some broader trends in law making, IP administration, enforcement and the court system. It concludes that the ASEAN enlargement process has created a very diverse picture with regards to IP. With the fast pace of the legislative development, countries have been struggling to keep up with the creation of the institutional and administrative framework. Progress in the ASEAN harmonisation process has been limited. Statistics indicate that some of the new laws have been reasonably well received at the domestic level, while the patent sector remains foreign dominated.

Is there a need to reform the corporate class action procedure in Australia?

This article argues for a need to reform the corporate class action procedure in Australia. The reason is that the statutory procedure for an “opt out” class action is beginning to appear more like an “opt in” class action. The confusion relates to the poor drafting of Part IVA of the Federal Court of Australia Act 1976, which contains the class action procedure. The involvement of a commercial litigation funder has also contributed to the complexity in the interpretation of the law. The article provides a review of why s 33J and s 33E are conceptually difficult to apply. It highlights the key areas that require legislative amendments in order for the class action procedure to operate more effectively.

The intoxication defence: toward a better understanding of current doctrine and reform

This article deals with the contentious issue of the extent to which an intoxicated person, particularly one who has become inebriated of his or her own volition, should be permitted to escape liability on the basis that the degree of inebriation was sufficient to preclude the fact-finder from finding a volitional act or omission on the part of the accused and/or that he or she acted with the required mens rea, if any, as defined by the common law or statutory definition of the offence. In addressing this issue, the article embarks upon a thorough analysis of the House of Lords seminal decision in Director of Public Prosecutions v Majewski (1977) AC 443 which, despite some very harsh criticism of late, continues to be the leading authority on the question in the United Kingdom, United States and Australia. As part of this analysis, the article examines and ultimately attempts to resolve the longstanding controversy over what has proved to be the elusive distinction between crimes of basic or general intent and those of specific intent. The article concludes by rejecting the Majewski principles in favour of those enunciated by the High Court of Australia in R v O'Connor (1980) 146 CLR 64; 54 ALJR. In reaching this conclusion, the article notes various legislative and academic proposals for reform as well as statutory reforms in the United Kingdom, United States, Canada and Australia.