1990
1990.-. Feedback on Submissions
Published: Victorian Humanist, March 1990: 3.
Feedback [on] Submissions
We received reports of several inquiries to which HSV had made submissions.
Informed Decisions – Medical Procedures (Law Reform Commission)
The Inquiry was commenced because of a lack of clarity in the law on the notion of “informed consent” to medical procedures, The study found that a significant improvement in doctor-patient communication appears necessary. Guidelines, rather than rigid statutory standards, are recommended to cover the many variables in individual cases.
These guidelines are to be (a) formulated by the National Health & Medical Research Council, (b) issued to doctors, (c) included in medical courses, (d) given to patients and self-help programs and (e) referred to in quality controls in hospitals and peer reviews. Legislation should be enacted to allow the breach of guidelines to be admissible as evidence in actions for professional negligence.
Income Support for the Unemployed (Howe, Minister for Social Security) Considerable support was expressed for the provision of a wider range of training programs geared to the needs of different groups. Special groups were identified as young people, older people, women, migrants, Aboriginal people and the rural sector.
The principles and rationale of the proposed changes to the Unemployed Income Support Scheme gained approval from the majority of submissions.
Reproductive Technology – Access to Info
The Bioethics Consultative Committee recommends that detailed records of offspring arising from gamete donations should be kept indefinitely in State-linked registers. The social parents can decide whether or not they inform they inform their children of the manner of conception. Persons with a legitimate interest in access to information are listed and the conditions of access are specified.
Violence – Directions for Australia (National Committee on Violence)
This is a major sociological document reminiscent of that from the Royal Commission on Human Relationships in 1977. Its depth, breadth and scholarship are impressive. It researches the patterns, trends and types of violence, and the risks based on demographic, geographic and socio-economic factors, age, gender and Aboriginality. It identifies vulnerable groups, sites (e.g. streets, public transport, prisons, gangs, schools), [and] violence in sport and in civil disorders. It examines biological factors, personality, mental illness, child-rearing practices, media influences, substance abuse and cultural factors.
There are some [recommendations?] to public sector and some non-government agencies on actions towards prevention and and control of violence. Amongst them are stricter gun laws and a minority recommendation for endorsement of the World Medical Association’s recommendation that boxing be banned.
— Halina Strnad
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1990.[various].
Published: Victorian Humanist, May-June 1990: 15.
REPORTS from Halina Strnad
Submissions
[1990.2] To the Minister for Education re. the dismissal of a teacher in the Islamic Schools of Victoria’s Werribee College for refusal to use religious material in her classroom. We stated our concerns: the divisive nature of sectional religious education, and the use of public funds to promote it.
[1990.1] To the Federal Attorney-General re. the granting of the request to have an all-male jury. The Bible repeatedly specifies that it was man’s God-given right to judge and thus the defendant refused to have women serving on the jury. The judge agreed. (No prizes for guessing it happened in Queensland.)
[1990.6] To the Attorney-General re. the Law of Blasphemy which, it is proposed should be extended to apply to faiths other than Christianity. This is in relation to the Salman Rushdie affair.
Bioethics
A further victory for rational and humanistic approach to biotechnology in U.K. in the decision to permit research on human embryos up to 14 days after fertilisation. Members of the House of Lords also voted (214 to 80) to allow production of fertilised ova solely for research purposes. This bill is to be discussed in House of Commons where amendments to limit this use will be discussed. The research is vital for the investigation of genetic abnormalities, the relief of infertility and for contraceptive vaccines.
No victory to environmentalists in U.K. who argue that the sections of the Green Bill concerned with genetic engineering are not allowing for public scrutiny of risks involved in production and release of new organisms. Companies involved argue that information is commercially sensitive and should be kept secret. So far they appear to have this right to secrecy. (New Scientist 17 March 1990)
In the Netherlands where euthanasia is not legalised but tolerated officially if carried out within strict and narrow guidelines, the Medical Disiplinary Board reprimanded a doctor for “breach of trust”. The doctor mislead a patient into believing that he was being given a lethal dose of drugs when the doctor knew this was not so. Questions arose: was the doctor guilty of “not . . . unlawfully killing his patient”; could the patient sue for negligence on finding himself still alive; are there parallels for unwanted babies from failed abortions and vasectomies? In Canada, a Jehovah’s Witness won $Can20,000 against a casualty surgeon who saved her life by giving her an unwanted blood transfusion. Details of this recent case have not been published. The Disiplinary Board restated the freedom of doctors not to participate in euthanasia but took the view that the patient should not have been mislead on such a serious matter (Lancet 10 March 1990).
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1990.3. Equal Opportunity Act
Submitted 22 May 1990 to the Law Reform Commission of Victoria
Published: Victorian Humanist, July 1990: 11.
Search for references, discussion and preparation of ‘the submission on the Law of Blasphemy had to be postponed to accomodate two calls for submission from the Law Reform [Commission] of Victoria, both with a short deadline. We did the following:
Equal Opportunity Act, 2nd Paper.
This Act prohibits discrimination on the grounds of sex, marital status, de facto status, race, impairment, being a parent or being childless, and religious and political activity. New grounds proposed in addition are: age, sexuality, irrelevant criminal record, social origin, pregnancy, personal association and presumed characteristics.
A number of exemptions for specific instances were proposed. We argued for stronger legislative basis for equal opportunity; that too many exemptions would weaken this important principle; that it should be unlawful for an employer to dismiss an employee solely on the grounds of reaching an age of higher wages.
We agreed with a number of proposals, applauded the attempts at uniformity between the State laws and the directive to formulate the Act in plain English.
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1990.4. Enduring Powers of Attorney
Submitted 28 May 1990 to the Law Reform Commission of Victoria
Published: Victorian Humanist, July 1990: 11.
Search for references, discussion and preparation of ‘the submission on the Law of Blasphemy had to be postponed to accomodate two calls for submission from the Law Reform [Commission] of Victoria, both with a short deadline. We did the following:
Enduring Powers of Attorney
Proposed changes to this Act include a test of competence of the giver at the time of giving powers of attorney, additional precautions against abuse of trust and ways of monitoring attorneys. We were in general agreement and offered several suggestions.
The reviewers of this Act aim to achieve uniformity or at least reciprocity between State laws. Another objective is to present it in plain English and supply translations in several foreign languages used by migrants. We applauded these aims. This Act does not include decisions about medical treatment and dying. We expressed our regret about this limitation.
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1990.7. The Cost of Law
Submitted 14 September 1990 to the Law Reform Commission of Victoria
Published: Victorian Humanist, Oct. 1990: 10 (& Oct. 1992).
Access to the Law: The Cost of Litigation.
This informative Issues Paper from the Victorian Law Reform Commission identifies problems, lists options and presents a large number of questions for public debate. Our discussion group had the benefit of several learned and critical articles from the Law Institute, the press, our public speaker Jude Wallace, and Nick Renton.
We suggested modifications to the cost indemnity rule (loser always pays the winner’s costs), supported the introduction of contingency fees but with strict safeguards against abuse of this system, simplification of court administration, advertising of lawyers’ fees and specialisations, and the abolition of all anticompetitive practices. Also a larger scope for trained paralegals.
We urged that a task force be established to provide a brief, coherent statute book in plain English, as directed by the Attorney-General, to deal with the present difficulties caused by the obscurity, complexity and inaccessibility of legislation. We stressed the wisdom and the necessity for State and Commonwealth legislation to be consistent and uniform. In this rapidly changing world precedent has a diminishing relevance. Where the wisdom of common law can still be applied, it should be codified and put on statute uniformly throughout Australia.
We agree with the statement of the International Jurists that this system of justice is “too slow, too expensive, too cumbersome and too formalistic”. All initiatives to improve efficiency are welcome: fixed hearing dates, written briefs, submissions etc. Attempts at mediation should be a prerequisite to court cases; magistrates and lower courts should have higher jurisdiction. Legal practitioners should be accredited and accountable by means other than peer review. Many practices and traditions of the legal profession are a legacy of a bygone society and are now incongruous with modern life. Courts should be run by administrators and managers. Other issues were training of lawyers, legal insurance, stamp duty and filing fees.
ADDENDUM
From the Victorian Humanist, Oct. 1992: 4.
Feedback: In response to our submission on “Access to the Law”: The Cost of Litigation” we received a report of the VicStatutes Project from the Law Reform Commission of Victoria. It addresses one of the reasons for the high cost of litigation, namely the obscurity and inaccessibility of Legal Acts. The VicStatutes Project, now well advanced, will result in an updated and consolidated list of statutes to be available on CD-ROM, i.e. accessible on computer screens in a coherent form and within seconds. This will obviate the need for often lengthy and costly search and interpretation of Legal Acts. HSV congratulated the task force on this achievement.
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1990.8. Choice of Law Rules
Submitted 16 September 1990 to the Australian Law Reform Commission
Published: Victorian Humanist, Oct. 1990: 10.
A brief comment in response to this Discussion Paper from the Australian Law Reform Commission, stating the need for uniformity of statutes throughout the Commonwealth.
Forum shopping (i.e. plaintiff initiating action where the law is most favourable to their case) should be disallowed. “Double actionability”, where action spans events in two States and therefore two jurisdictions, is a costly waste of court time and of legal resources. Requirements for notification of infectious disease vary in each State – another legacy from the days of horse and buggy travel and an impediment to disease control.
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1990.9. Infertility Counselling
Submitted 17 September 1990 to the Bioethics Consultative Committee
Published: Victorian Humanist, Oct. 1990: 10.
An Issues Paper from the National Bioethics Consultative Committee . . . offers a number of suggestions on this topic for public debate.
We urged that education about reproduction and infertility be conducted in schools and in the community. This should also aim to dispel the stigma and the myths that surround infertility. Of utmost importance is an appropriate and stringent selection of participants in the various IVF procedures. If, as stated, the interests of the child are to be paramount, only couples able to give an unconditional acceptance to a child regardless of its genetic equipment (own or donor gametes) should be offered this involved and expensive reproductive means.
We referred to the Family Law Council’s report on Creating Children – Reproductive Technology in Australia (1985): we find their recommendations on counselling combine rationality and compassion and we are in support of them.
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1990.10. Inquiry into Public Violence
Submitted 18 September 1990 to the Victorian Community Council Against Violence.
Published: Victorian Humanist, Feb. 1991: 5.
We urged to establish the proposed independent Bureau of Crime Statistics & Research to provide a scientific base for dealing with public violence. We quoted evidence of the association between violent behaviour and a number of factors such as alcohol and other substance abuse; gratuitous portrayals of violence in film; TV and videos; inherently violent sports such as boxing and rugby; the availability of dangerous weapons and the frustrations caused by social inequality.
We suggested that migrants and refugees should make a statuary declaration, not to
engage in hostile acts against their previous political or religious opponents; with a breach incurring deportation.
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1990.11. Multiculturalism and the Law
Submitted 2 October 1990 to the Australian Law Reform Commission
Published: Victorian Humanist, Feb. 1991: 5.
The Commission’s Issues Paper sought community views on whether the laws which relate to marriage, family, consumer contracts and trade practices are appropriate to a society made up of people from differing cultural backgrounds. The Commission’s approach is that any proposed changes remain consistent with the basic structures of Australian Society; the Constitution; the rule of law; equality; parliamentary democracy; freedom of speech and religion; and English as a national language. They should also be consistent with the international convenants to which Australia is a party (Civil & Political Rights, Elimination of All Forms of Racial Discrimination).
We opposed proposals to modify the law to accommodate extreme ethnic differences, particularly in regard to gender inequalities, children’s rights to broader education, and freedom to choose careers and partners.
Any changes to the law to accommodate cultural values should take account of the evolution of the culture of origin, lest Australia becomes a museum for fossils of cultures. Religion taught at public schools should be in the context of comparative religions. Sectarian religious instruction should be funded privately.
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1990.12. Human Rights of People with Mental Illness
Submitted 7 November 1990 to the Human Rights and Equal Opportunity Commission.
Published: Victorian Humanist, Feb. 1991: 5.
National Inquiry Concerning the Human Rights of People with Mental Illness.
We urged that a uniform definition of mental illness be established for all States. The assessment of cases should not be by the judiciary but by a panel of experts, balancing the competing problems of civil liberties and community protection in favour of the latter.
We strongly supported the system of Public Advocacy as a watch-dog of human rights for the mentally ill.
We contended that institutionalisation must remain a necessity for some victims of mental illness.
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1990.13. Surrogacy: 2, Implementation
Submitted 4 December 1990 to the National Bioethics Consultative Committee.
Published: Victorian Humanist, Feb. 1991: 5.
We supported the proposal that established, licensed agencies govern the arrangements for surrogacy to ensure the welfare of the child, to offer professional counselling and to prevent exploitation. Uniform Federal legislation is essential.
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[SUPPLEMENT] Submission Committee’s Report
Published: Victorian Humanist, Nov. 1990: [10].
1990 saw our perennial problem of Issues Papers (i.e. calls for submissions) arriving in batches and often with very short deadlines. Hurried searches for references, members’ and other expertise, kept us busy. The following is a list of our endeavours:
All-male Jury. Minister for Justice, ACT.
Religious Instructions in Schools. Minister for Education, Victoria.
Equal Opportunity Act – Review. 2nd Paper. Vic. Law Reform Commission
Enduring Powers of Attorney. Vic. Law Reform Commission
The Report on Priorities in Higher Education. Federal Parliamentary Standing Committee
The Law of Blasphemy. Attorney-General, Minister for Justice.
The Cost of Law. Vic. Law Reform Commission
Choice of Law Rules. Australian Law Reform Commission
Infertility Counselling. Bioethics Consultative Committee
Inquiry into Public Violence. Vic. Community Council Against Violence
Multiculturalism and the Law. Australian Law Reform Commission.
National Inquiry Concerning the Human Rights of People with Mental Illness. Human Rights and Equal Opportunity Commission.
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[End of 1990]
