Process Of Law Reform Research Articles

Lack of Conviction: A Proposal to Make Rape Illegal in South Australia

1.0 INTRODUCTION Anti-rape activism is replete with dilemmas. Let me begin with just one: conviction statistics for rape vividly summarise the lack of justice available to people who have experienced rape, and thus present a potential asset in achieving change. At the same time, however, they hold some real risks. They can focus attention on the legal system and leave other arenas in which change is needed untouched. They can send unwanted messages both to people who have experienced rape and to those who perpetrate it. And, as this paper demonstrates, the statistics themselves can become the focus of attention, when the original goal was to focus attention on improving the state of affairs that gave rise to low conviction statistics. This article reviews South Australian conviction statistics for rape and attempted rape from 1993-2003. It takes recent law reform processes in South Australia as a case study of the ways in which conviction rates can be mobilized as a tool by various participants in those processes. The blunt numbers presented in more detail below demonstrate that although the conviction rate from 1981-1991 was low and falling,1 from 1993-2003 the proportion of reports to police resulting in a finding of guilty as charged for rape or attempted rape fell still further. In 2003 only 1.5% of reports resulted in a finding of guilty as charged. What does this mean in concrete terms? Conservative estimates suggest that, at most, one in four rapes are reported to police.2 If they are correct, about 3144 rapes were committed in SA in 2003. If the national and international estimates that suggest 15% or less of rapes are reported3 are correct, approximately 5240 rapes were committed in this state in 2003. Yet, only 786 were reported to the police.4 In 2003, only 100 reached court, though a smaller number went to a full trial. Of these, 12 resulted in a finding of guilty as charged.5 Looking at these conviction figures makes me wonder whether the only realistic campaign which takes the criminal justice system as its focus would be a campaign to make rape illegal. Because there is little evidence that it is illegal except a few words tucked away in the Criminal Law Consolidation Act. In South Australia, rape is overwhelmingly subject to 'resolution without trial'.6 Indeed, twenty years after Catharine MacKinnon famously stated that rape 'is not prohibited; it is regulated'7, her words have become more, rather than less, obviously applicable in this state. In the face of such challenges, attempting to be realistic has begun to seem like an obstacle rather than an asset in ending rape. Eliminating sexual coercion is broadly seen as a wholly unrealistic goal, and perhaps that is part of the reason institutional responses to sexual violence remain manifestly inadequate. Only the realistic has been attempted, and these figures show that the scale of the problem demands much more than tinkering around the edges. However, the history of anti-rape activism shows a persistent return to law reform as a strategy. I have been, and continue to be, part of these efforts in tandem with other strategies. There are some profoundly good reasons to engage in rape law reform. They include the necessity to have society's ultimate sanctions for unacceptable and profoundly injurious conduct apply to sexual violence. They also include the urgent need to ensure access to justice for people who have experienced sexual violence. However, participation in law reform by its very nature compels the framing of demands that liberal law reform might be able to deliver. Having done that, those demands must be reduced again and again until they are polite and realistically attainable requests: requests that might find their way through the maze of impediments to law reform. Polite requests for recognizably legal outcomes, preferably those requiring no additional funding that have been shown to be effective 'elsewhere'. …

The Role of Legislative Drafting in the Law Reform Process

This article addresses the practical issues that arise during the law reform process. It is the norm that a drafter will commence his or her contribution to the legislative process after the policy...

Mainstreaming environmental sustainability into South Africa's integrated development planning process

The advent of democracy in South Africa in 1994 has resulted in a radical law reform process, new systems of governance, and significantly transformed planning and decision-making processes. At the same time, principles of sustainability, integration, participation, social and environmental justice have also been placed squarely on the South African political agenda. Local government has become the intended focal point for addressing the socio-economic needs of local communities and sustainable service delivery, with the principal tool for achieving these developmental objectives the Integrated Development Plan (IDP). This paper examines the available policy frameworks, including those at the national level, guiding incorporation of environmental sustainability considerations into IDPs and highlights difficulties of achieving this in practice. Ideas for moving beyond rhetoric to practical mainstreaming of environmental sustainability considerations in IDPs are provided.

Overcoming the Conflict between the Right to Freedom of Religion and Women's Rights to Equality: A South African Case Study of Muslim Marriages

This article provides an overview of the South African law reform process regarding the legal recognition of Muslim marriages in the context of South Africa's constitutional commitments. With reference to the proposed draft legislation, it explores the conflict between the right to freedom of religion and women's rights to equality that arises as a result of the proposed recognition. Despite the conflict, it is argued that legal recognition of Muslim marriages is necessary for the protection of women's rights. After considering the ways in which the conflict has been dealt with at legislative and judicial levels, suggestions are offered to overcome the conflict so that women's rights to equality are not compromised.

WHAT HAPPENED TO THE CHILD JUSTICE BILL? The process of law reform relating to child offenders

Children who are accused of crimes in South Africa are governed by the same legislation as adults. The urgent need to develop a separate child justice system culminated in the release of the draft Child Justice Bill in 2000 by the South African Law Reform Commission (SALRC). A product of thorough research and consultation, the revised Bill was introduced to parliament in August 2002. The changes made after public hearings and debates in parliament in 2003 saw the whittling away of the overall child rights nature of the Bill. To add insult to injury, the legislation has, since that year, not been debated again before the portfolio committee and the legislature has provided no explanation for this state of affairs.

From fieldwork to facts to firearms control: Research and advocacy towards stricter firearm control legislation in South Africa

Children have special protection under the South African constitution, including the right to safety, health and an environment conducive to their wellbeing and optimal development. Yet, firearms contribute significantly to the high incidence of deaths and injuries among South African children and in young males in their late teens. This case study is about the participation of the Child Health Policy Institute (CHPI) in a law reform process ultimately aimed at reducing firearm injuries and deaths in the country by exercising stricter gun control through legislation and other reforms. This feature briefly describes the political context in which the project was initiated, the research on firearm injuries and deaths in children conducted by the CHPI, and the dissemination of the research findings. The role of the CHPI as an academic institution within the Gun Control Alliance is also examined as are the lessons learnt in trying the bridge the gap between research and law reform.

Children and Family Violence in Australia: An Aberration in The Law Reform Process

Children and Family Violence in Australia: An Aberration in The Law Reform Process

In Search of "Industrial Harmony": The Process of Labour Law Reform in Manitoba, 1984

This paper examines the roots of the controversy over industrial relations within Manitoba NDP, looks at the process which the government initiated as a means of delivering its commitments to organized labour and outlines the conditions by which the business class in Manitoba forced the government to retreat.

Shanghai plans responses to AIDS

On Dec 15 2004 a meeting was convened in Shanghai China to discuss options for laws dealing with HIV/AIDS at the provincial and municipal levels. The primary agencies responsible were the Shanghai Academy of Social Sciences the Shanghai Law Society and the Institute of Legislation and Temple University in the USA. With a population of some 13 million Shanghai is China’s largest city and enjoys a legal status equivalent to a province enabling it to create its own law. Participants in the meeting were mainly leaders of the municipal government (including members of the Municipal People’s Congress and the health department) and researchers from the Shanghai Academy of Social Sciences and other research institutions. The meeting showed Shanghai’s commitment to effective HIV/AIDS legislation and the challenge of steering HIV/AIDS policy through the shoals of fear and moral disapproval of drug use and prostitution. Both the content and process of law reform were addressed. A law-reform exercise in Australia in the early 1980s was offered as an example of a consultative process in which affected populations were encouraged to share their experiences. Over 2 years non-governmental organisations were encouraged to come forward to help shape the law law that in turn supported an environment of partnership between government and community. (excerpt)

The Law Commission Consultative Report on Company Security Interests: An Irreverent Riposte

I was once at a sermon by a well‐known Northern Ireland politician and minister of religion in which, talking about the fall from grace of a British minister following a sex scandal, he commented that while the will of God worked slowly it also worked surely. Be that as it may, one might comment that the process of law reform, whatever about working surely, can certainly work slowly. Back in July 2002 the Law Commission produced with some haste a consultation paper on Registration of Security Interests.1 There was a bit of a fanfare, a short consultation period and talk of imminent legislative change. Things went quiet for a while. More than 2 years later the Law Commission came back in September 2004 with a further consultation paper only this time called a “consultative report”2 with the promise of a Final Report in July 2005. In this article I will look at the consultative report and ask whether it is going to be the harbinger of legislative transformation.

A new Mental Health Act for England and Wales: grounds for compulsion

In the previous issue of APT ([Zigmond, 2004][1]) I described the process of law reform and the main issues raised in relation to the Draft Mental Health Bill. Here I focus on the grounds for making a person subject to compulsion and review the provisions in a number of jurisdictions. That a person

Advancing Social Inclusion: The Implications for Criminal Law and Policy

The author uses the premises and inquiries advanced by the literature on social inclusion to consider its potential for the re-visioning of criminal law and policy. She notes that criminal law and social inclusion are fundamentally at odds, but argues that governments and policy makers committed to inclusion in social and economic policy cannot fulfil that mandate without turning their attention to criminal law. She identifies the process of criminal law reform, the definition of crime, the enforcement of the law, and the outcomes of criminal law as areas for which social inclusion offers insights and directions.

Korean Industrial Relations in the Era of Globalisation

Globalisation has influenced the transformation of Korean industrial relations by manifesting itself in the government’s globalisation strategy and neo-liberal restructuring policies. Global market competition and international labour standards have been the key reference criteria used by the Korean government and other concerned parties to reform labour laws. Under the reality of globalisation and economic crisis, labour has been increasingly disadvantaged, with workers having experienced not only growing job insecurity, accompanied by high unemployment and deteriorated employment status as demonstrated by the sharp rise of non-standard workforce, but also widening income inequality. The Korean government’s effort to build a tripartite partnership as part of its strategic response to globalisation and the economic crisis has been constrained by the process of labour law reform and economic restructuring. At the same time, the pressure of globalisation has led to the instability of labour relations at the enterprise level by producing intense labour-management confrontations concerning employment adjustment and corporate restructuring. HRM schemes of Korean companies have to a large extent shifted to the performance-based system as a result of managerial efforts to respond to growing global competition and to benchmark global best practices.

Rule of Law in Latin America: The International Promotion of Judicial Reform

This volume analyzes the judicial reform processes funded by international donor organizations in Latin America. As billions of dollars are spent on judicial reform, it is pertinent to ask about the fate of these projects. The authors examine the way in which international organizations rationalize and prioritize their reform proposals and agenda in Latin America; how reform agendas are implemented and followed up (or not); how international donor organizations relate to national governments and civil society, and to each other; and what factors account for the successes and failures of their reform initiatives. The book also addresses the question of the connection between rule of law reform and broader processes of regime consolidation and state building, from both a political and a social perspective.

Public health law reform.

Public health law reform is necessary because existing statutes are outdated, contain multiple layers of regulation, and are inconsistent. A model law would define the mission and functions of public health agen cies, provide a full range of flexible powers, specify clear criteria and procedures for activities, and provide protections for privacy and against discrimination. The law reform process provides an opportunity for public health agencies to draw attention to their resource needs and achievements and to form ties with constituency groups and enduring relations with the legislative branch of government. Ultimately, the law should become a catalyst, rather than an impediment, to reinvigorating the public health system.

Company Law Reform and Economic Analysis: Establishing Boundaries

The recent process of company law reform has highlighted the absence of consensus over what should be the appropriate methodological basis for it. The adoption of economic analysis by the Law Commissions, and the prominence given to economic issues by the Company Law Review Steering Group, have focused attention on economic analysis. Although such analysis is well-established in other jurisdictions, notably the United States, it has proven controversial in the United Kingdom, and such controversy has, perhaps, deflected attention away from consideration of its detailed application and limitations. The articles in this issue are derived from papers originally given at an SPTL Workshop on “Company Law Reform and Economic Analysis: Establishing Boundaries”. The themes that emerge are the limitations of company law reform and the limitations of economic analysis. The limitations of company law reform are shown to result from the beneficial role that social norms consistent with economic efficiency may play, the harmful role that legal rules inconsistent with economic efficiency may play, and the difficulties that can arise in the wholesale importation of legal rules from one jurisdiction to another. The limitations of economic analysis are shown where the application of economic theory is tested against historic events, in the adoption of oversimplistic conceptual language in economic literature and the difficulties in seeking to utilise economic analysis as a detailed guide for the development of specific rules. This article concludes by setting out the implications of these conclusions for both future “law and economics” research in the field of company law and for the company law reform process itself.

Sui Generis Intellectual Property Law Reform: Issues for Australia

This article begins by describing the current range of intellectual property rights in Australia (statutory and common law/equity), then canvasses recent reforms that seek to address some of the problems raised by new innovation practices. A particular focus of the article is the piecemeal nature of the law reform process which continues to treat the law in this area in a highly compartmentalised fashion. Some tentative proposals for improvement are made at the end.

'Statutory Nondelegation': Another Misguided Idea in Administrative Procedure Reform

Statutory nondelegation is an administrative procedure reform mechanism that constrains agency authority to promulgate regulations, with the intention of enhancing the legislative accountability of agency rulemaking. For example, the Bumpers Amendment to the federal APA, proposed more than two decades ago, would have relied on courts to aggressively review the statutory authority for agency regulatory action. This article uses a 1996 Florida administrative procedure reform that revives the failed Bumpers Amendment to discuss some of the problems with statutory nondelegation as an administrative procedure reform. It argues that statutory nondelegation makes agency rulemaking less--not more--accountable. In addition, it discusses how Florida's statutory nondelegation reform has led to many radical administrative procedure reforms during the 1999 legislative session. The article uses Florida's misguided reforms, largely the product of a state law reform process dominated by special interest politics, to suggest a more tempered approach to administrative procedure reform for Pennsylvania and other states.

Electronic Commerce and the Symbiotic Relationship Between International and Domestic Law Reform

This article delves into the relationship between international and domestic law reform efforts in the area of electronic commerce. The thesis of the article is that, for many reasons including the nature of technology itself, the process of law reform is becoming very symbiotic, with international and domestic efforts feeding into (and off) one another. It examines several law reform efforts. On the international level, the article examines the UNCITRAL Model Law on Electronic Commerce, as well as its newer work on digital signatures. On the domestic level, the article explores the amendments to the UCC (revisions to Article 2 and the new proposed Article 2B), the new Uniform Electronic Transactions Act, and state legislation in the area of digital and electronic signatures. While not the focus of the article (which appeared in a symposium on the relationship between international sales law and US sales law), developments in other countries are discussed as well.

A Feminist Perspective on the Law Reform Process: An Evaluation of Attempts to Establish a Family Court in South Africa

‘Historically, law has been considered a “public arena”, and its focus has been on public concerns. Traditionally, women belonged to the “private” recesses of society, in families, in relationships controlled and defined by men, in the legal silences. The family has now been explicitly moved into the public arena of regulating policy. The policies, however, indeed the very terms of discourse, continue to be fashioned by a largely male elite within the context of historically bound institutions that reflect and validate only their experience and perceptions.’Martha Albertson Fineman The Illusion of Equality—The Rhetoric and Reality of Divorce Reform (1991) at 9.