Law Reform Commission Research Articles

DO NEW CRIMES NEED NEW LAWS? Legal provisions available for prosecuting human trafficking

South Africa seems well on the way to creating specialised human trafficking legislation. The country is a signatory to the United Nations Protocol on Trafficking in Persons, and the SA Law Reform Commission is investigating the issue of trafficking. But there are many legal provisions currently available for prosecuting those engaging in this practice. Perhaps a greater challenge for the prosecution is how to identify acts that constitute ‘trafficking in persons’.

NEW CRIMES AND OLD PROCEDURES: Can the new Sexual Offences Bill deliver on its promises?

In 1996 Dullah Omar, the then-Minister of Justice, established a project committee in the South African Law Reform Commission (SALRC) to investigate sexual offences against children. Eleven years later, having widened the scope of the legal reforms to include adults, the National Assembly finally passed the muchdelayed Criminal Law (Sexual Offences and Related Matters) Amendment Bill (SO Bill 10 Nov 06 (SOBPC06)) on 23 May 2007. The Bill is ambitious, its objects being: ‘To afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the Republic’ (Sexual Offences Bill 2006: 9). This article briefly sets out some of the Bill’s content and then examines whether or not the Bill, in its current form, does indeed meet the high aims set for itself.

The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law

textabstractThe doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and meth- ods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently pub- lished Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative per- spectives, social science evidence and methods, and theoret- ical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.

The Incorporation Problem in Interdisciplinary Legal Research, Part 2: Case Studies

As our previous issue 8:2, this issue of Erasmus Law Review addresses the problem of incorporating insights from non-legal disciplines into legal research. The discussion of that problem in the introduction to issue 8:2 is therefore also the starting point for the current issue, and for a full understanding of the questions underlying the contributions to this issue, we refer the reader to that earlier introduction.1 Whereas the articles in issue 8:2 focused on more general and theoretical questions with regard to the incorporation problem, this issue contains a number of case studies. The first four articles reflect on concrete research projects conducted by legal researchers in which they include a form of interdisciplinarity. The final article takes a different approach, by using Ph.D. theses, scholarly articles, and Law Reform Commission reports, analyzing whether and how legal researchers do interdisciplinary research. There are particular insights to be gained from a case study approach to the incorporation problem. The basic idea underlying the wish to include case studies here is that we need careful consideration of how incorporation works in the practice of legal research as test cases for the theoretical claims. Moreover, one of the main points of departure for our approach is that we need to assess the necessity of interdisciplinary legal research in light of the research question of the research at hand. If this idea holds, it is to be expected that there will be a great variety in modes of interdisciplinarity, depending on the precise topic and set-up of the research presented. This is certainly true of the current issue. In addition to the particular research question, it is the broader embedding of that question in a particular approach to the field that seems of paramount importance. Some fields of research in which legal scholars engage are areas in which the boundaries between disciplines have become fluid. Researching problems in such areas, therefore, almost as a matter of course, involves elements from different disciplines. The articles by Annie de Roo and Andria Naude Fourie provide examples. Annie de Roo describes four multidisciplinary projects in which she has been involved. The central theme con-

The Use of Journal Articles by the Queensland Law Reform Commission

This article reports on a study into how the Queensland Law Reform Commission (‘QLRC’) cites journalarticles. It found that journal articles had a limited presence within QLRC reports, suggesting that QLRC doesnot engage significantly with academic literature in its approach to law reform. This raises issues both for lawreform and the Australian legal academy. For law reform there is the issue of whether the QLRC shouldengage more deeply with material from journal articles. For the Australian legal academy there is the issue ofwhether it should be researching and writing about matters of importance to reforming Australian law.

The Productivity Commission: a different engine for law reform?

This empirical study analyses the extent to which the Productivity Commission (Commission) relies on different types of evidence in formulating recommendations in a sample of reports. It goes deeper than traditional citation analysis; rather than classifying and counting all material cited in each sample report, it includes only citations that influenced the final recommendations. The findings, which run counter to the rhetoric employed in relation to the Commission's work, reveal the extent to which the Commission relies on non-quantitative forms of evidence, including bare assertions, personal experience, and logical and legal arguments, particularly in reports addressing broader questions of social policy. It concludes with a discussion of the significance of these findings, linking them to Graycar's critique of law reform commissions. As such, it provides a more accurate, but still preliminary, basis for understanding the Commission's methods than that otherwise appearing in the discourse surrounding the Commission's work.

Medicinal Cannabis: A Pipe Dream?

In the latter part of 2014 the ACT government agreed to join a 'Commonwealth-backed' national medical cannabis trial. Opponents of reform are troubled by the potential public health implications associated with cannabis such as schizophrenia, addiction and the risk of carcinoma from smoke inhalation. States and territories within Australia must weigh up potential risks with potential benefits and decide whether medicinal cannabis reform is in the public interest. This is currently underway in Victoria by the Victorian Law Reform Commission which will publish its final report by 31 August 2015. In relation to the ACT, the ACT Legislative Assembly is currently considering the Drugs of Dependence (Cannabis Use for Medical Purposes) Amendment Bill 2014.

Questioning Law's Capacity

The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.1 A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws.2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities 3 ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems.

An international comparison of legal frameworks for supported and substitute decision-making in mental health services

There have been important recent developments in law, research, policy and practice relating to supporting people with decision-making impairments, in particular when a person's wishes and preferences are unclear or inaccessible. A driver in this respect is the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the implications of the CRPD for policy and professional practices are currently debated. This article reviews and compares four legal frameworks for supported and substitute decision-making for people whose decision-making ability is impaired. In particular, it explores how these frameworks may apply to people with mental health problems. The four jurisdictions are: Ontario, Canada; Victoria, Australia; England and Wales, United Kingdom (UK); and Northern Ireland, UK. Comparisons and contrasts are made in the key areas of: the legal framework for supported and substitute decision-making; the criteria for intervention; the assessment process; the safeguards; and issues in practice. Thus Ontario has developed a relatively comprehensive, progressive and influential legal framework over the past 30years but there remain concerns about the standardisation of decision-making ability assessments and how the laws work together. In Australia, the Victorian Law Reform Commission (2012) has recommended that the six different types of substitute decision-making under the three laws in that jurisdiction, need to be simplified, and integrated into a spectrum that includes supported decision-making. In England and Wales the Mental Capacity Act 2005 has a complex interface with mental health law. In Northern Ireland it is proposed to introduce a new Mental Capacity (Health, Welfare and Finance) Bill that will provide a unified structure for all substitute decision-making. The discussion will consider the key strengths and limitations of the approaches in each jurisdiction and identify possible ways that further progress can be made in law, policy and practice.

IMPOTENT? THE PROSPECTS OF THE NATIONAL REGISTER FOR SEXUAL OFFENDERS

The National Register for Sexual Offenders was created in accordance with Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. In terms of this Register, the names of all convicted and, in certain circumstances, alleged sex offenders who perpetrated a sexual offence against children or mentally-ill persons, before or after the coming into force of the Chapter, whether their convictions or alleged transgressions were committed in or outside the Republic, must be recorded in the Register. The purpose of the Register is to protect children and mentally-disabled persons against sexual offenders by establishing and maintaining a record of convicted and alleged sex offenders and informing employers, licensing authorities, and authorities dealing with fostering, kinship- and temporary safe care-giving, adoption or curatorship whether a person’s particulars appear on the register. Although the Register was implemented in 2009, it is still not functional and fraught with problems. These problems were already anticipated by the South African Law Reform Commission in 1997 who recommended against the establishment of such a register, yet the submission was ignored. It is not apparent that the Register is accomplishing its intended purpose. Not only is its proper functioning undermined by overbroad and vague provisions resulting in legal action being instituted, but resource and administrative challenges are also impeding its purpose. This note contextualises the Register and considers its current status as well as its future potential. It is argued that, despite atrocious sexual offences statistics in South Africa, the Register is not a panacea to remedy the situation, and more viable alternatives should be utilised.

Should Supported Decision-Making Replace Substituted Decision-Making? The Convention on the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act 2000

In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The Australian Law Reform Commission has also recommended the introduction of supported decision-making to replace mental health and guardianship laws. This paper critically evaluates the concepts of autonomy and discrimination and the social model of disability which provide the theoretical underpinning of the CRPD. Focussing on coercive treatment of adults with severe mental illness under Queensland’s Mental Health Act 2000, it then evaluates the advantages and disadvantages of supported decision-making, and concludes that the proposed abolition of involuntary treatment laws is not justified.

Whither Adverse Possession in Hong Kong? A Comparative and Statistical Study.

This article reviews the case law, statutes, and long-awaited public consultation paper on adverse possession (the “Consultation Paper”) published by the Hong Kong Law Reform Commission in 2012, in order to identify a suitable model for adverse possession reforms. This article employs a statistical study to identify the local factors in Hong Kong which may impact on the suggested solutions. This article also employs a comparative study, taking reference from the various models adopted in other common law jurisdictions.

"Contributory intent" as a defence limiting delictual liability

In terms of delictual liability, the term generally refers to the defendant's conduct, whereas contributory refers to the plaintiff's conduct. Contributory intent is a form of contributory and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the Act). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of contributory negligence (the other form of contributory fault) only, but in recent times they have applied it to instances of contributory intent. This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of contributory intent as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the Bill) has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, contributory intent as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?

Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or “nominee” arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any “off the shelf” measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia’s National Disability Insurance Scheme and “disability trusts” in Australia and Canada).

Factors that Underpin the Delivery of Effective Decision-making Support for People with Cognitive Disability

Over one million Australians have some form of cognitive impairment due to intellectual disability or acquired brain injury and require significant levels of support for decision-making. To date, the range and quality of support available has been poor, often tending toward undue paternalism, with deleterious consequences for the individual's sense of identity and quality of life. Efforts to rectify this situation have recently been championed by law reform commissions, which have focused on establishing new legal structures for support with decision-making. However, the crucial issue of how decision-making support is delivered in practice – in terms of quality and effectiveness – remains in urgent need of attention. The aim of this article is to describe four empirically based propositions that characterise effective decision-making support; orchestration by the primary supporter; commitment to person; support principles; and a repertoire of strategies that can be used flexibly depending on the type and context of particular decisions. These propositions are based on evidence from a series of qualitative studies conducted by the authors. Results of these studies enabled the identification of factors that underpin delivery of effective support and can be utilised to develop capacity-building education programs for people providing decision-making support to those with cognitive disability, either intellectual disability or acquired brain injury, which will substantially improve the quality of support given.

Supporting People with Cognitive Disabilities with Decision-making: Any Australian Law Reform Contributions?

This article briefly reviews recent law reform achievements or proposals for supported decision-making within Australia against benchmarks such as how well the measure translates supported decision-making principles to cater for the routine needs of people with cognitive impairments; whether it appears robust and workable in practice; and how prone it may be to overreach or unintended consequences. The article suggests that Australian Law Reform Commission reforms are more principled and better targeted on the more mundane needs of people with cognitive impairments, while recent Victorian initiatives rate poorly in terms of avoiding public misunderstandings and unintended outcomes, despite deserving credit for fidelity to the principles of the United Nations Convention on the Rights of Persons with Disabilities and being Australia's first supported decision-making appointments. The article recommends reconsideration of aspects of these proposals, including the retrograde step of an expedited avenue for appointment of parents as guardians or administrators of children with cognitive impairments on turning 18 years of age.

Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era

(2014). Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era. Journal of Media Law: Vol. 6, No. 2, pp. 193-205.

The Social Gradient of Adult Guardianship in South Australia

The socio-economic capital in a random sample of 146 first guardianship orders made by the Guardianship Board of South Australia was compared to expected, derived from analysis of the Victorian Law Reform Commission (using ABS SEIFA indexes). Results found a significantly greater than expected proportion of guardianship orders at low socio-economic deciles. Regression modeling suggested a causal relationship wherein 66% of the decline in incidence is explained by increasing socio-economic capital. Objective conditions of disability do not explain the observed distribution alone. Whilst a number of exogenous variables might be implicated, access to social capital is strongly consonant with the substituted judgement standard in making guardianship orders. In particular, the adequacy of informal arrangements and the least restrictive choice. Tribunal members' perceptions of social capital may influence the way this standard is applied, and may account for the observed distribution.

It Is Almost as If There Were a Written Script: Child Murder, Concealment of Birth, and the Unmarried Mother in Western Australia

It Is Almost as If There Were a Written Script: Child Murder, Concealment of Birth, and the Unmarried Mother in Western Australia

PRIVACY PROTECTION AND MEDIA IN AUSTRALIA: UNFINISHED BUSINESS

In this article the author surveys the development of legal protections for privacy in publication in jurisdictions of the common law. He explains how, in 1937, the High Court of Australia in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) declined to endorse a new legal protection for privacy despite developments favourable to that course in United States courts. He then discusses the advent of universal human rights that include privacy protection and work that he performed in the 1970s and 80s in the Australian Law Reform Commission and Organisation for Economic Co-operation and Development, proposing improved privacy protection. Controversies in the courts, including inAustralian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) are described, followed by an analysis of recent controversies about media excesses in England and Australia resulting in the Finkelstein Report (2012) and the Leveson Inquiry (2012), both recommending improved protections for privacy. Now the Australian Government is once again considering a federal statutory tort. Would this be desirable or would it be an unjustified burden on free expression in Australia? The author concludes, with some telling illustrations, why protection of privacy is needed, and why the rule of self-regulation on this score should now be ended.