Victorian Law Research Articles

Homicide law reform and gender: Configuring violence

This article charts aspects of the engagement by formal law reform agencies with feminist ideas in the context of homicide law reform. This requires, of course, a concentration on violence against women. The article uses law reform work on the provocation defence to map the ways in which violence against women was an apparent driver of reform. It has Victorian law reform as its focus, and concentrates on the various manifestations of independent law reform agencies in Victoria – the Victorian Law Reform Commission (VLRC), and its two predecessor agencies, the Law Reform Commission of Victoria (LRCV) and the Law Reform Commissioner. The article explores the thesis that when law reform, at least homicide law reform, is driven by the social context in which the legal phenomenon of interest occurs, one is more likely to get progressive legal change than where reform is driven by legal categories. However, that social context had itself to be configured and the paper briefly traces the identification of ‘domestic violence’ as a social phenomenon.

Labour market regulation and team performance: The Victorian Football League's Coulter Law, 1930–1970

The Coulter Law was a set of Victorian Football League (VFL) recruiting and payment rules that operated from 1930 to 1970 and set maximum wages for individual players. Testing of the conventional view – that most VFL clubs breached these rules to maximise the utility derived from winning games – is hampered by the unavailability of individual wage data. We develop a model that observes connections between player turnover and team performance at three VFL clubs. The ways that clubs managed team payrolls in a regulated labour market are not sufficient to explain variations in team performance. Clubs lost experienced players to minor leagues, regardless of whether they complied with the Coulter Law. The ability of clubs to develop replacement players had a stronger influence on team performance.

The Victorian Operation of Defensive Homicide

In November 2005, the Victorian government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced not as a replacement for the abolished provocation defence, but rather as a ‘safety net’ between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offence’s operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male-on-male violence; and where applied to female defendants who have killed in response to prolonged family violence. The resulting theoretical discussion suggests that, in the wake of abolishing provocation, the Victorian law of homicide has continued to minimise the status of victims and in so doing has been unable to distance itself from the narratives of victim blame, denigration and delegitimisation that previously were linked to the operation of the controversial provocation defence.

Victoria's New Homicide Laws: Provocative Reforms or More Stories of Women ‘asking for it’?

The controversial partial defence of provocation has now been abolished in three Australian jurisdictions, including Victoria. Recent developments in Victorian case law would appear to suggest a continuation of ‘excuses’ for male anger and violence towards women that position the woman victim as to blame for her own death. This article considers that the 2005 abolition of provocation was only in part designed to redress the problem of victim-blame. The decision was accompanied by other key changes introduced into the Crimes Act 1958 (Vic) to make it easier for women who kill in the context of family violence to successfully claim self-defence and ‘excessive self-defence’ (defensive homicide). Drawing on recent developments in Victorian case law since the 2005 amendments, this article argues that the claim that provocation's victim-blaming narratives are being mobilised in the guise of other defences merits closer analysis. It also argues that provocation's critics must continue to expose the gendered (and raced) assumptions underlying the other defences to homicide, such as self-defence including manslaughter and the new offence of defensive homicide. Otherwise there is a risk that provocation's victim-blaming narratives could end up rewritten in such a way that support an argument for a reduction in culpability in cases where there is a history of violence against the woman victim, which is likely to result in claims that little has changed.

Navigating the “Unchartered” Waters of Victorian Mental Health Law Reform

With the Charter of Human Rights and Responsibilities Act 2006 (Vic) due for Parliamentary review by 1 October 2011, it is timely to reflect on its impact on Victorian mental health law between 2008 and 2011. From controversial origins, the Charter has been both praised and criticised. Based on the International Covenant for Civil and Political Rights, it protects 20 basic rights. Critics argue that the Charter is politically driven and is largely impotent because it creates no new remedies. Proponents see it as an important and symbolic first step in the eventual enactment of a Constitutional Bill of Rights. Nevertheless, in its current form, it has been used in a number of cases to promote the human rights of patients receiving involuntary treatment under the Mental Health Act 1986 (Vic) and has therefore created important jurisprudential commentary on the interplay between mental health and human rights law in Victoria. The Charter has also provided a much needed impetus to comprehensively review Victoria's out-dated Mental Health Act 1986 (Vic), with the aim of making it compatible with the rights enunciated in the Charter. In November 2010, Victorians elected a new Coalition Government which is less supportive of the Charter. As this article will demonstrate, while the future of the Charter may be uncertain, its legacy to date is not.

Understanding legal risks facing children and young people using social network sites

Children and young people are increasingly participating in everyday use of Social Networking Sites (SNS), such as Facebook or MySpace, to the extent that such interactions have come to be seen as an essential part of growing up. To date, at least in Australia, mainstream discussion and policy debates about young people and SNS have tended to focus on high profile risks associated with these activities, such as cyber-bullying and online grooming of children by adults. While not dismissing the potential risks of SNS use by young people, it is important to understand the potential benefits that may accrue from online social interactions, including the acquisition of social and technical skills that are likely to be important for future digital citizens. Moreover, it is also important not to ignore other potential, albeit less dramatic, risks that may arise from SNS use. This article, which reports on research conducted for a project funded by the Victorian Law Foundation, focuses on the range of legal risks that children and young people may face in their everyday use of SNS. These legal risks are likely to receive much greater attention as a result of a recent high-profile case involving the posting of nude photographs of Australian footballers to Facebook by a Melbourne teenager. The article identifies and explains the main areas of the law that may be breached by common uses of SNS, before explaining the legal issues arising from the Melbourne schoolgirl incident. It then summarises the results of surveys and focus groups conducted with Victorian High School students about their perceptions of the risks associated with use of SNS. The article concludes with an analysis of the research findings, and some suggestions as to how the popularity of SNS with young people may be used to engage students in learning about, and debating, the application of the law to online activities, especially the use of SNS. The full findings of the project will be available in a report to be published in early 2011.

The Effect of Rule Determinacy on Deciding Contract Disputes: Experimental Data and Network Simulation

This paper reports the results of an experiment in which 107 law students who had completed their first year (including a course on Contracts) were asked to decide one of 6 contract law disputes. The experiment was designed to replicate and extend earlier experiments. The disputes were based on Australian appellate cases resulting in 2:1 majority decisions. Three of them were classified as relatively ‘easier’ and 3 as relatively ‘harder’ to decide, based on the earlier experiments. The participants were instructed to make their decisions using a statement of relevant law drawn from either Australian case law or the draft Australian Contract Code published by the Victorian Law Reform Commission in 1992. We sought to contrast two plausible points on the spectrum of ‘detailed rules’ to ‘broad rules’ that were as far apart as possible. At 4 points in the decision process (after reading the facts, after reading the law, after formulating the arguments for each party and after their decision) the participants were asked to rate the importance of 15 facts drawn from the statement of facts. These facts had been classified by the researchers into 3 categories, based on their relative weight under both law models. In the extensive scholarly literature on ‘rule determinacy’ it is nearly universally assumed that detailed rules are more predictable than broad rules. It is also commonly asserted that a reason detailed rules are more certain is that they focus the necessary factual inquiry on a relatively small number of important facts, whereas broad rules lead decision makers to give greater importance to a relatively wider range of facts. Despite their importance, these assumptions have scarcely been tested empirically. This study contributes to that task. Our experimental results indicate that, contrary to conventional wisdom, broad rules are as predictable as detailed rules, and are more predictable in some cases. They confirm conventional wisdom on the focusing effect of detailed rules. But this effect was not associated with greater predictability. If anything, it seemed to make some cases needlessly unpredictable. This paper also reports our attempt to explore the assumed relationship between the scope of the factual inquiry and predictability of decisions, using a connectionist-network model to simulate the decision and fact importance rating results observed in each of the six cases used in our experiment. The model accounts for over 99% of the variance in our experimental data, using only 5 parameters for each case to account for the results of both law model groups (18 data points). Our results support the hypothesis that, again contrary to conventional wisdom, narrowing the factual inquiry reduced rather than increased predictability in all but one case. We explore the implications and limitations of our findings in the conclusion. Our interest in this topic arises from its relevance to the codification and international harmonization of contract law. Our results suggest that resistance to contract codes, in jurisdictions like Australia and the UK, based on their indeterminacy lacks an empirical foundation. They also suggest that a global contract code based on commonalities that can readily be discerned in existing contract codes, particularly at the level of broad rules, could be an effective instrument of contract regulation.

Privacy, Character, and the Jurisdiction of the Self: A “Story of the Door” in The Strange Case of Dr. Jekyll and Mr. Hyde

Research Article| September 01 2010 Privacy, Character, and the Jurisdiction of the Self: A “Story of the Door” in The Strange Case of Dr. Jekyll and Mr. Hyde Cathrine O. Frank Cathrine O. Frank University of New England CFrank@une.edu Cathrine O. Frank is associate professor of English at the University of New England in Biddeford, Maine, where she teaches courses in British literature and law and literature. She is the author of Law, Literature, and the Transmission of Culture in England, 1837–1925 (Ashgate, 2010) and co-editor of Law and Humanities: An Introduction (Cambridge, 2009). She is collaborating on a volume on the pedagogy of law and literature for the MLA's Options for Teaching series, and is developing a new project on the idea of character and the links between writing and reputation in Victorian law and literature. Search for other works by this author on: This Site Google English Language Notes (2010) 48 (2): 215–224. https://doi.org/10.1215/00138282-48.2.215 Cite Icon Cite Share Icon Share Facebook Twitter LinkedIn MailTo Permissions Search Site Citation Cathrine O. Frank; Privacy, Character, and the Jurisdiction of the Self: A “Story of the Door” in The Strange Case of Dr. Jekyll and Mr. Hyde. English Language Notes 1 September 2010; 48 (2): 215–224. doi: https://doi.org/10.1215/00138282-48.2.215 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search Books & JournalsAll JournalsEnglish Language Notes Search Advanced Search The text of this article is only available as a PDF. Copyright © 2010 Regents of the University of Colorado2010 Article PDF first page preview Close Modal Issue Section: Jurisdiction: Memory, Poetry, and Mental Illness You do not currently have access to this content.

The forensic nurse examiner in a rural emergency department: A new role for emergency nursing

In 2006, the Victorian State Government, in response to a Victorian Law Reform Commissions’ report, announced broad range of initiatives to reform the response to managing victims of sexual assault.

Learning From the Past, Looking to the Future: Is Victorian Mental Health Law Ripe for Reform?1

It is almost 30 years since the policy which underpins the current Victorian Mental Health Act was developed. The delivery of mental health services has changed dramatically over those years. As a result, the Act has been amended on numerous occasions, rendering it inaccessible for most people other than mental health law specialists. This article suggests that it may be time to legislate again, despite acknowledging that legislation tends to follow rather than precede change in mental health service delivery. The article traces the history of Victorian mental health legislation, from the opening of the first asylum in 1848, to the agitation for reform in the late 1970s which led to the passage of the current Act. Law reform is enhanced by clear identification of the values that underpin our laws. The new Victorian Charter of Human Rights and Responsibilities Act and the UN Convention on the Rights of Persons with Disabilities may assist in identifying important contemporary values which should inform new mental health laws. The following areas merit consideration when new mental health laws are considered: advance directives, the interaction between mental health and guardianship laws, information for family and friends of patients, the extended use of community treatment orders, the grounds for civil commitment, the jurisdiction of the Mental Health Review Board of Victoria, and the establishment of a commission to coordinate research and planning for the delivery of mental health services.

Sperm removal and dead or dying patients: a dilemma for emergency departments and intensive care units

An unexpected consequence of the increase in the use of fertility treatment is that emergency department and intensive care doctors are receiving requests from wives (actual or de facto) of dying or recently deceased men for sperm removal. Legislation in all states and territories regulates removal of sperm from a dying man and, provided that lawful consent is obtained, a doctor can harvest sperm. In several states, including Victoria, harvested sperm cannot be used in a fertilisation procedure without the man's consent, and debate surrounds the issue of consent and how it can be proved. Recent Victorian Law Reform Commission recommendations attempt to streamline the law to make a man's consent the cornerstone of decision making for both harvesting and subsequent use of sperm.

Reply to ‘The Other Abortion Myth—The Failure of the Common Law’

My experience with academic lawyers when it comes to the law of abortion is that if there are five in a room, you’ll have six different opinions about what the law says. Invite those who advise abortion service-providers working in clinics or public hospitals, and you’ll get an even greater diversity of views. So it is with wry amusement that I respond to the certainty of Kate Gleeson that my understanding of the law—that it is unclear and in need of reform—is wrong. Gleeson asserts that that the common law regime operating in Victoria, New South Wales and Queensland is clear, certain and preferable to other regulatory regimes. The Victorian Law Reform Commission (VLRC) disagrees. On page 16 of its 2008 Final Report on the Law of Abortion it notes that, “The law of abortion in Victoria is unclear.” It notes further that, “it is not possible to describe the current state of Victorian law with reasonable precision.” The report states that the law in both NSW and Queensland, the other common law states, is “broadly similar to the current Victorian law” and so, presumably, equally unclear and imprecise. Gleeson dismisses the occasional prosecution of the increasingly few doctors willing to perform the procedure in this country as non-indicative of a need to improve the current common law regime. I wonder if she has ever spoken to any of these providers? I have and so I know that even the threat of prosecution, still less the occasional charge or successful prosecution as has happened in Queensland in 1986, Victoria in 1987, West Australia in 1998 and New South Wales in 2006, is enough to stigmatise the procedure and drive doctors away from providing it. This has left a shortage of skilled providers across the country that makes insistent claims by academics that abortion is lawful, empty. Gleeson says I am wrong to suggest that the absence of prosecution results from those in key positions of authority turning a blind eye. Again, I would refer her to the facts, this time the period leading up to reform of the law in WA, which was a presumed common law state. In 1998 in West Australia, several surprise decisions by members of the police and the Director of Public Prosecutions (DPP) saw a doctor charged with violating S199 of the Criminal Code. In response, and led by Federal MP and former West Australian Premier Carmen Lawrence, a group of fourteen female parliamentarians sent a letter to the DPP John McKechnie, the Commissioner of Police, the Attorney General and the Minister for Health. The letter registered their “vehement objection” to the possible prosecution. The DPP, after announcing that abortion was only legal in West Australia if a woman’s life was at risk, Bioethical Inquiry DOI 10.1007/s11673-008-9125-2

ART eligibility for lesbians and single heterosexual women in Victoria: How medicalisation influenced a political, legal and policy debate

This article analyses the seven year long Victorian political, policy and law reform debate over eligibility criteria for assisted reproductive technology (ART), emphasising the ways in which medicalised discourse and assumptions framed the arguments advanced by various stakeholders. It argues that despite the positive political, social justice and health gains for lesbian and gay prospective parents and their children that were ultimately achieved, the case made for the decriminalisation of self-insemination and increased access to clinical ART services also involved some disappointing political and intellectual compromises along the way. Although lesbian activism regarding ART eligibility criteria was often consistent with a position of what could be called ‘constructive medicalisation’ (Broom and Woodward 1996), the debate also demonstrated how easily constructive medicalisation arguments were side-lined in favour of arguments drawing on dominant medicalised discourses about infertility treatment and risk.

Reforming the Law of Environmental Standing and Third Party Appeal Rights in Victoria

This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate. First, during the recent election strong commitments were made to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government. In the environmental context, it was emphasised that underpinning Labors approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met. Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd. The High Court held that open standing provisions are beyond any doubt constitutional. More importantly, however, in Truth About Motorways the High Court emphasised that open standing provisions serve salutary public interest purposes in contemporary administrative circumstances. It seems advisable in such circumstances to seriously the adequacy of the current standing and third party appeal arrangements in Victoria. The need for such a review becomes even more apparent when one discovers, as discussed below, that except in two important but limited circumstances, open standing and third party appeal rights in Victorian environmental law are lacking.

Provocation in Sentencing: A Culpability-Based Framework

In a number of jurisdictions, including Victoria, the partial defence of provocation has been abolished. Provocation will now be considered in the sentencing process, alongside other sentencing factors that the court must take into account to arrive at an appropriate and proportionate sentence. We argue that, rather than being one of the many general mitigating factors that a court must consider, provocation is relevant to the degree of the offender's culpability and that an understanding of the theoretical foundation for assessing culpability should inform a new normative framework for assessing whether and how provocation warrants a reduction in an offender's sentence.This article argues that the crucial questions for a court are whether the victim's actions gave the offender a justifiable sense of being wronged and the relationship, or proportionality, between the offence and the provocation. Adopting an approach canvassed by the Victorian Law Reform Commission, we propose that conduct that arises out of the victim exercising his or her right to equality should not provide justification for an offender's sense of having been wronged. Under this approach, the personal circumstances of an offender may be relevant to assessing the gravity of provocation. However, the question of whether an offender has a justifiable sense of being wronged by the provocation should be evaluated consistently with contemporary societal notions of equality.

Singapore in 2007: High Wage Ministers and the Management of Gays and Elderly

In 2007, the People's Action Party government raised top officials' salaries, already among the highest in the world. Cultural liberalization has finally encouraged the gay community to invoke a seldom used parliamentary process to petition Parliament to repeal the Victorian law that criminalizes homosexuality. The government began to deal with some issues for an impending aging population.

Identification of a white substance on 20th century leather bindings

The aim of this investigation was to identify a white substance visible on the spines of leather-bound volumes titled Victorian Law Reports and address any issues of concern. Initially it was thought that it was a mould outbreak. However, preliminary examination using visual and microscopic methods ruled this out. An analytical path which involved Environmental Scanning Electron Microscopy with Energy Dispersive Spectroscopy (ESEM-EDS), micro-chemical spot testing and Fourier Transform Infra-red (FTIR) spectroscopy determined that the white substance was composed of one or more fatty acids and possibly their respective calcium salts. In addition, this investigation provides a review of the available literature and an analytical path for identifying white bloom on leather bound volumes.

Revisiting old ground in light of new dilemmas: The need for Queensland to reconsider the regulation of assisted reproductive technologies

In recent years, there have been many advances in assisted reproductive technology, in terms of both technological advances and changes in social attitudes. The system of regulation in Queensland is in need of review since it was last considered nearly 25 years ago. The need for review is demonstrated by examining the regulation in Australia as a whole and the impact this has on regulation in Queensland. The paper considers two specific issues. The general access criteria are examined in order to determine who is able to gain access to treatment services, together with how this impacts on gaining access to, and the regulation of, in vitro fertilisation (IVF) and pre-implantation genetic diagnosis (PGD). These issues are discussed mainly in the context of creating tissue-matched children that could act as a cure for an existing ill sibling. The recent review of assisted reproductive technologies (ART) regulation conducted by the Victorian Law Reform Commission is also considered in context of how this may impact on the future regulation of other jurisdictions. The main focus however, is on future options available for Queensland should regulation be reviewed in the future.

Not-So-Uniform Evidence Law: Reforming Longman Warnings

The Australian, New South Wales and Victorian Law Reform Commissions recently conducted a joint inquiry into the uniform evidence legislation. The Commissions made unanimous recommendations regarding the majority of issues in their Final Report. However, reform of Longman warnings—given in sexual assault trials to warn the jury of the effect upon an accused of a delay between the alleged crime and trial— proved contentious. While the Australian and Victorian Law Reform Commissions favoured limiting judicial discretion over Longman warnings, the NSW Law Reform Commission believed that this would compromise the accused person's right to a fair trial. This article offers a critique of the NSW Law Reform Commission's dissent. The article commences by considering the Commission's approach to the fair trial principle. It suggests that the Commission's analysis is predicated on a narrow understanding of this principle, and asserts that fairness to an individual defendant cannot alone justify unfettered judicial discretion over Longman warnings if such warnings cause systemic prejudice to a class of victims. The article will then canvass several aspects peculiar to sexual assault trials that render warnings about delay problematic. Finally, evidence of the increasingly routine application of Longman warnings will be considered. In light of this evidence, the Commission's argument that such warnings are necessary to ensure fairness on the facts of individual cases is no longer convincing.

Teaching & Learning Guide for: ‘The Victorian’

Author Recommends:The best book on the Victorians I have read since completing the OELH volume is one I wish I had read whilst writing it – Jan‐Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature, and Theology (Cambridge University Press, 2000). It gives a powerful account of the singular risk of testimony, in seeking either to apprehend the unproven real or to bestow personal reality upon otherwise notional ideas. In relation to risk itself, Elaine Freedgood’s Victorian Writing about Risk (Cambridge University Press, 2000) is about the interaction between safety and danger in the period: I am interested in the creation of that Victorian holding‐ground which is safe enough not to be merely tame or conventional but carefully experimental upon life. I do now think that I should have said more about the development of free indirect discourse in the nineteenth‐century novel – the inward articulation of the silent private mind. On this Garrett Stewart’s Reading Voices (University of California Press, 1990) remains important in relation to the nervous rhythms of unspoken and explorative mentality. In general, I see the period as explorative of the holding‐ground between the theological and the secular: in this respect, I would urge further attention to the theoretical position of pragmatism in the work of William James, starting with his Varieties of Religious Experience (1902) in the Penguin Classics edition of 1985.Brigid Lowe’s Victorian Fiction and the Insights of Sympathy has recently been published by Anthem Press (February 2007). In sundry ways it is a book I have been waiting for – against that hermeneutics of suspicion where critics with a modern political agenda tell Victorian authors what they should have said or did almost say without knowing it. This book finally kills off that tiresome agenda if people will listen to the argument it offers. Dr Lowe’s defence of sympathy as a form of intuitive recognition, of life‐fullness is important and moving and exciting: ‘in which knowledge passes instantaneously into feeling and feeling flashes back as a new organ of knowledge’.Online Materials:The Victorian Database Online offers ‘all things Victorian’: http://www.victoriandatabase.com. I also admire George Landow’s Victorian Web: http://www.Victorianweb.org.Sample Syllabi:It would do most service to Victorian Literature to see this article used not simply as an historical phenomenon but as area of debate. I would like to see it represented in a course on Literature and Belief, which would include Mrs Gaskell’s Ruth or George Eliot’s Daniel Deronda amidst the Book of Ruth and of Job from the Bible, Wordsworth’s ‘The Ruined Cottage’, Shakespeare’s King Lear, Kierkegaard’s Fear and Trembling, Tolstoy’s Anna Karenina, John Berger’s A Fortunate Man, Oliver Sacks’s A Leg To Stand On. This would be to use the history of human feeling, personally.In similar vein, I am currently designing a new part‐time M.A. in Bibliotherapy which takes its origin in John Stuart Mill’s preference for reading Wordsworth over Byron in the midst of his nervous breakdown.My big focus question is: what else is literature for apart from socio‐historical surveys? Can it be what some Victorians wanted it to be – a substitute for religion?