Native Title

The ALRC has been commissioned to inquire into the Australian native title regime. 

The Terms of Reference are 

having regard to:

• the operation of the Native Title Act 1993 (Cth) (Native Title Act) and the future acts regime for over 30 years the passage of almost a decade since the last review of the Native Title Act (Connection to Country: Review of the Native Title Act 1993 (ALRC Report 126)) 

• the significance of the Native Title Act, with native title having now been determined to exist in exclusive and non-exclusive form over a substantial proportion of the Australian land mass, with almost 500 claims determined and more than 100 claims ongoing 

• the deep connections of First Nations Australians to Country that are recognised through a determination of native title, and the considerable processes that native title holders have undergone to achieve this legal recognition 

• the opportunity for the native title system to contribute significantly to social, cultural, environmental and economic outcomes for First Nations people, businesses, organisations and communities 

• the role of the future acts regime as a precursor to economic and other activities on native title land 

• the importance of the future acts regime being appropriately designed for Australia’s current and future social and economic development, in a way that respects the rights and interests of native title holders 

• the Australian Government’s agreement in principle with Recommendation 4 of the former Joint Standing Committee on Northern Australia in its report, A Way Forward .... 

the ALRC is asked to consider:

• the intention of the Native Title Act, as stated in its preamble, to be a special measure for the advancement of First Nations peoples, and to ensure native title holders are able to fully enjoy their rights and interests 

• the current operation of the future acts regime, including Indigenous land use agreements (ILUAs), and related parts of the Native Title Act, with the aim of rectifying any inefficacy, inequality or unfairness 

• options for efficiencies in the future acts regime to reduce the time and cost of compliance for all parties the rights and obligations recognised in the international instruments to which Australia is a party or which it has pledged to support, including the United Nations Declaration on the Rights of Indigenous Peoples 

• options within laws and legal frameworks to support native title groups to effectively engage with the future acts regime and to support consensus within groups in relation to proposed future acts 

• options to support native title groups, project proponents and governments to share in the benefits of development on native title land, including opportunities for native title groups to lead or co-lead development, and for ensuring native title groups receive commensurate and timely compensation for the diminution of native title rights and interests caused by future acts 

• options for how the future acts regime can support fair negotiations and encourage proponents and native title groups to work collaboratively in relation to future acts 

• the different levels of procedural rights of native title groups in relation to different types of future acts and whether these are appropriately aligned with the impacts on native title rights and interests whether the Native Title Act appropriately provides for new and emerging industries engaging in future acts the National Native Title Tribunal’s role in relation to future acts 

• how the rights in the future acts regime compare with other land rights regimes, such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and any relevant international approaches 

• options to strengthen data collection and appropriate data transparency to support the operation of the future acts regime. 

The ALRC is asked to conduct the review with regard to the Socio-economic Outcomes and Priority Reforms of the National Agreement on Closing the Gap. 

In undertaking its review, the ALRC should consider any findings and recommendations of inquiries, review processes and reports that the ALRC considers relevant, including other work underway to address recommendations arising from the A Way Forward report.

Canadian Law Reform

'The Past, Present, and Future of Law Reform in Canada' by Marcus Moore in (2018) 6(2) The Theory and Practice of Legislation 225–261 comments 

The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future.

Comparative Law Reform

'Paths to Social Change: Analyses of Decriminalization of Sodomy' by Udi Sommer and Victor Asal comments

 What variables lead judicial and non-judicial decision-making bodies to introduce policy change? In the theoretical framework proposed, the path dependent nature of law has a differential effect on courts and legislatures. Further, political institutions such as elections and accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972-2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. Uniquely positioned institutionally, courts of last resort are less constrained than legislatures by either legal path dependence or political accountability. Globalization, on the other hand, has an equal effect on both. This work is the first to offer a theoretical framework explaining policy change via different institutional paths, systematically test it comparatively and with respect to a policy issue still on the agenda in many countries.

The authors conclude

The goal of this study was to analyze policy change via different institutional paths. This question, which has been crucially important in the study of public policy, judicial politics and social movements, was examined here for the first time systematically in a cross-national framework over a period of several decades and with respect to a question still on the agenda in the majority of countries, namely the decriminalization of same-sex sex. While the debate in the literature is still unsettled (Dahl 1957; Funston 1975; Rosenberg 1991), the theory developed here suggests that policy change emanates from judicial as well as non-judicial bodies. 

The key message of this study, however, is not limited to this notion. Rather, we explain theoretically and then substantiate empirically that different sets of variables systematically explain policy change via disparate institutional venues. As such, this article makes significant contributions to our understanding of a range of topics from law, legal development and accountability to the effects of religiosity on policy change. 

The legalization of sodomy is only one piece of the puzzle. It is important to recognize that countries where same-sex sexual relations are legal are not necessarily places where members of the LGBT community are treated equally (Waaldijk 2000). Legalization of sodomy, hence, is not the ultimate measure of discrimination against sexual minorities. With that in mind, however, an examination of the repeal of sodomy laws is key to developing a better understanding of the rights of gays and lesbians crossnationally. Although legal change may not always precipitate change on the ground (Epp 1996), the repeal of sodomy prohibitions is still a meaningful policy choice that warrants explanation. While a court decision or a legal measure may fail to translate into full equality for the minority they aim to protect, such legal change has a declaratory value, is educational, and provides members of the minority group with venues to claim redress (Scheingold 2004; Waaldijk 2000; McCann 1994; Zemans 1983). 

This work sheds new light on the nature of legal and policy change as well as on decision making within judicial and non-judicial institutions. More specifically, the path dependent nature of legal development means that law is constituted within the political system. Accordingly, we argue and then demonstrate, legal precedent in a Common Law system limits the introduction of policy change via the political branches more than via courts of last resort, and particularly when such change proves contentious. On the other hand, legal path dependence in civil law countries makes it easier for policy change to emanate from the legislature. Indeed, whereas legislative repeal constitutes 97% of the cases where sodomy laws were revoked in Civil Law countries, 6 in every 10 repeals in Common Law countries between 1972-2002 were judicial. 

This finding lends support to the notion that political actors are more constrained by precedent than their judicial counterparts and that the effects of path dependence on decision making in supreme courts are commensurably weaker. More broadly, this finding also addresses a major criticism leveled against path dependence scholars concerning their inability to explain policy change. We contend that the judicial hierarchical structure enables courts of last resort to make policy changes. Indeed, courts of last resort may serve as important mechanisms of change, a relief valve of sorts, in theories of path dependence (Kahn 2006). 

Furthermore, political institutions such as accountability entail closer proximity between constituency will and decision making in the political branches. In contrast, we find courts are less affected by majoritarian elements, as demonstrated by the effect of religious groups, which is apparent on legislatures, but not on courts. Some forces on the domestic (e.g., democratic conditions) and global (e.g., globalization) levels affect repeal, notwithstanding its institutional venue. In a sub-sample of democracies, the effect of democratic conditions is diminished, but the effects of the other predictors remain largely unaffected. 

This work offers some important observations. While contested later (e.g., Funston 1975), Dahl (1957) posits that courts do not operate in a counter-majoritarian fashion. Consequently, Dahl questions the extent to which courts protect the rights of minority groups. Along the same lines, Rosenberg (1991) contends that the Supreme Court is a Hollow Hope for those who seek social change. Dependent on the political branches for implementation, save for in particular circumstances, courts are not likely venues for policy innovation. The theory proposed in this study (and its empirical support presented thereafter) directly engages this scholarship. As far as the protection of sexual minorities is concerned, the findings in this study indicate that judicial institutions may well be the ones to extend legal protection. We identify the variables that predict policy making in each institutional venue, explain their effects, and empirically confirm their systematic influences. The empirical confirmation is established on data for all the nations in the world for a period of three decades. It is based on two disparate sets of models (multinomial logit and GEE time-series cross-sectional regression) estimated separately for all countries and for democratic countries only. The results of all models are robust and the support they lend to our hypotheses unyielding. 

Under the right circumstances, policy change may originate from courts of last resort. The political stars align differently in dissimilar jurisdictions; when Common Law and strong religious constituencies are present in a polity, courts may be the venue of choice for those seeking social change. Indeed, the Canadian and South African cases described earlier are but two examples illustrating these dynamics. 

As far as predictors of social change are concerned, and in particular in the context of the rights afforded sexual minorities, the analytical advantage of examining disparate institutional paths is clear. For instance, despite failures to find effects for religiosity in past work (e.g., Frank and McEneaney 1999), our theory and empirical tests illustrate the critical importance of analytically treating disparate institutional paths in order to accurately assess the effects of independent variables such as religious constituencies. Further, the emphasis put on institutions (as opposed, for instance, to social movements) is not unique to this work (e.g., Wald et al. 1996; Cole 2005). 

Lastly, this work also offers some empirical predictions to be further developed and tested in future work. With respect to institutional paths to policy change, future work may wish to examine the introduction of other policies (related to sexual minorities or otherwise) via disparate institutional paths. The set of predictors offered in this paper may account, for instance, for the introduction of anti-discrimination policies in different countries. While some accounts in the literature claim that, in Europe for instance, the mere decriminalization of same-sex sex inexorably led to the introduction of antidiscrimination measures (e.g., Waaldijk 2000), the theory proposed here offers an alternative analysis. Considering institutional paths of policy change and their respective predictors including type of legal system, special constituencies, democratic conditions and globalization, our theory offers a rich framework for scholars studying those processes. Moving beyond sexual minorities, the findings here may serve future examinations of policy change relevant to additional minority groups and policy domains.

Law Council Justice Project Report

The Law Council has released the final report of its Justice Project, characterised as a

national, comprehensive review into the state of access to justice in Australia for people experiencing significant disadvantage. It is one of the most extensive reviews of its type in 40 years.... 

Focussing on 13 priority groups identified as facing significant social and economic disadvantage, the final report shines a light on justice issues for these groups by undercovering systemic flaws and identifying service gaps. It also highlights what is working well. 

The constructive, informed recommendations in the final report provide a roadmap for future action, building the case for new, whole-of-government justice strategies secured by appropriate funding. ... 

The Justice Project is one of the most significant pieces of work the Law Council has ever undertaken: a landmark project examining the state of access to justice in Australia, particularly for disadvantaged people. The Law Council of Australia has contributed significant resources over many years to improving the quality of access to justice for all. It has developed sophisticated policies and materials underpinned by sound economic analysis and findings of parliamentary inquiries and commissions, numerous approaches to parliamentarians. Despite nods of agreement from all, there was no impetus for change. 

This Project was inspired by the realisation of a simple truth - that despite our lofty commitment to equality before the law, for many tens of thousands of Australians, equality, and justice, remain out of reach. 

We accept this situation as inevitable when it is not. We do so perhaps because we consider the cost of access to justice for all is too high. Or perhaps because we do not understand the devastating impact of injustice upon lives, because the voices of those denied justice are not heard. 

It was my intention that we give a voice to those who are most vulnerable to the impacts of this inequality.

The report features the following recommendations

People – Building Legal Capability and Awareness Chapter 

1.1 The future design of justice and related administrative systems should be nuanced, evidence-based and people-centred. It should be informed by, and responsive to, the likely legal capability - the knowledge, skills and readiness to act - of target users, given that it is often pivotal to their ability to negotiate such systems effectively. 

1.2 In implementing: • Recommendation 2.1, regarding the need for substantial additional investment in legal assistance services; and • Recommendation 2.7, regarding dedicated funding to pursue technological innovation in the delivery of legal services to clients through evidence-based approaches, specific funding should be available to ensure that tailored, effective, and accessible Community Legal Education and Information (‘CLEI’) strategies meet the needs of diverse Justice Project priority groups, having regard to lack of legal awareness and capability as a formidable, frequent barrier and CLEI as a key preventative tool in achieving access to justice. 

1.3 Recognising the value of community awareness campaigns in reducing or addressing legal need, Commonwealth, state and territory governments should initiate or extend such campaigns to: • overcome a lack of awareness of specific legal issues amongst key priority groups, including amongst people with intersectional disadvantage; and • overcome broader community discrimination, misperceptions and/or stigma which contribute to poor justice outcomes, including with respect to: • elder abuse; • family violence; and • race, gender, disability, LGBTI+ and age-based discrimination. Campaigns to increase community awareness of poorly understood, widespread legal issues should be accompanied by increased resourcing to legal services to accommodate additional demand. 

1.4 The Law Council recognises and accepts responsibility for engaging with the Australian Curriculum, Assessment and Reporting Authority regarding the inclusion of targeted measures to support the Australian Curriculum: Civics and Citizenship to build practical knowledge of everyday legal issues and how to address them effectively. 

Legal Services Chapter 

2.1 Commonwealth, state and territory governments should invest significant additional resources in Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, and Family Violence Prevention Legal Services to address critical civil and criminal legal assistance service gaps. This should include, at a minimum, $390 million per annum. 

2.2 Commonwealth, state and territory government funding for legal assistance service services should be determined by way of a transparent and evidence-based funding model that provides adequate, predictable, sustainable and long-term funding. • This model should be based upon evidence regarding legal need, provided through periodic legal need surveys as specified at Recommendation 7.8. • The Council of Attorneys-General should commission independent actuarial work which assesses the funding which is required to meet the shortfall in unmet legal need. • Consideration should also be given to agreeing national targets of the Australian population which should be covered by legal assistance services, having regard to their different roles, services and objectives. 

2.3 The Law Council recognises and accepts responsibility for cooperating with pro bono organisations to ensure ongoing improvement in the recognition, encouragement, referral and adoption of best practice with respect to pro bono legal services. 

2.4 The Law Council recognises and accepts responsibility undertaking future complementary research and the development of a position paper which focuses on the needs of ‘the missing middle’ and the most effective strategies available to the private legal profession, amongst others in the profession, to assist this group to access legal assistance. 

2.5 To enable legal assistance services to build and maintain trust with individuals and communities who need legal help, governments should: • prioritise adequate, predictable, sustainable and long-term funding models for these services under Recommendation 2.2; and • provide ongoing funding pathways to enable innovative pilots and community- led initiatives which have demonstrated success to flourish longer-term, with specific funding allocated for their evaluation. 

2.6 Commonwealth, state and territory governments should resource legal assistance services to employ non-legal liaison officers, such as Aboriginal and Torres Strait Islander, cultural, disability or youth liaison officers, to reach and build trust with specific client groups who have high levels of legal need but are unlikely to seek help, and to resolve clients’ non-legal needs effectively. 

2.7 Technological innovation should be pursued in the delivery of legal services to clients experiencing disadvantage, including through dedicated funding streams and having regard to identified examples of what works in this area. At the same time, it should be recognised that digitally excluded groups may be left behind by technological innovation without due care being taken. 

2.8 The Law Council recognises and accepts responsibility for: • building on existing efforts to promote greater diversity within the legal profession, by seeking to increase its proportion of people who are culturally and linguistically diverse, LGBTI+, Aboriginal and Torres Strait Islander, people with disability and older people; • adopting positive measures to increase and welcome diversity amongst the legal profession’s client base; • conducting a stocktake of the professional development training and other tailored resources available to assist the legal profession to build cultural competence, service accessibility and a more informed understanding of the diverse needs of people experiencing disadvantage, and act to address gaps; and • working with the Council of Deans, promote measures to build a stronger undergraduate understanding of the social, economic and cultural context of the law and its operation with respect to people experiencing disadvantage. 

2.9 As well as increasing support for Aboriginal and Torres Strait Islander community- controlled organisations to deliver legal services under Recommendation 7.2, governments should increase their funding and support for legal assistance services to deliver culturally safe, informed and accessible services to their core client populations, including through training and workplace diversity strategies. 

2.10 Specialist legal assistance services should be supported to expand their reach, particularly to overcome geographic and jurisdictional inequity of access, including through outreach and referral networks. 

2.11 Governments, peak legal assistance and legal professional bodies should cooperate to develop: • strategies to overcome conflict of interest issues which preclude many disadvantaged people from accessing justice, including through additional investment to address a scarcity of legal services, minimum servicing standards and innovative approaches such as dedicated conflict of interest locums; and • rural, regional and remote (‘RRR’) access to justice strategies to ensure an appropriate and tailored mix of services, publicly funded and private, in areas of critical need. These strategies should be planned and tailored to meet regional circumstances, and may include: rural placement, mentoring and incentive schemes, resourcing additional legal services, increasing legal aid rates, and strengthening practitioner referral networks (including to facilitate pro bono assistance). 

2.12 Commonwealth, state and territory governments should fund and recognise the value of systemic law reform and policy advocacy work by legal assistance providers. 

2.13 Commonwealth, state and territory governments should amend the National Partnership on Legal Assistance Services to remove the restriction on the use of Commonwealth funding by community legal centres to undertake law reform and policy advocacy work. 

2.14 Commonwealth, state and territory governments should fund and support multi- disciplinary collaborations and service delivery approaches which address legal and non-legal needs, including health-justice partnerships and culturally safe, holistic service models delivered by community-controlled organisations. These should be underpinned by funding, policy and reporting frameworks which are stable, streamlined, and break down siloed portfolio approaches. 

2.15 Legal assistance peak bodies and Health Justice Australia should, supported by the Law Council, pursue sector-to-sector partnerships which facilitate the expansion and delivery of multi-disciplinary collaborations to address legal and non-legal needs, and identify how key challenges can be overcome. 

2.16 Governments should better support the legal professionals who deliver justice to marginalised groups, recognising their invaluable role in serving the community and preventing downstream costs to communities and individuals, by implementing relevant recommendations in this chapter. The role of the Law Council in implementing its respective recommendations in this chapter is also essential. 

Dispute Resolution Chapter 

3.1 As part of Recommendation 7.8 (increasing the evidence base) governments should resource research bodies to undertake further independent research into the suitability of various alternative dispute resolution (‘ADR’) models for different groups of people experiencing disadvantage, noting that there is a lack of detailed research in this area. This research should investigate the benefits and risks of ADR models, and the necessary safeguards, accommodations and support which are needed to address any risks and to increase accessibility for different client groups. 

3.2 Governments should consider funding the expansion of appropriate models of legally assisted ADR for more vulnerable client groups at risk of power imbalances, such as elder abuse and family violence victims. Relevant models include Legal Aid Commission Family Dispute Resolution programs, which employ safeguards including screening out inappropriate cases, ‘shuttle’ or remote conferencing and specially trained mediators. 

3.3 Governments should support research into effective strategies to promote awareness of Ombudsmen and other complaint handling mechanisms amongst different groups of people experiencing disadvantage, having regard to the common pathways to this form of assistance that such groups commonly take. 

Courts and Tribunals Chapter 

4.1 It is of critical importance that the Commonwealth Government, working with state and territory governments, commission a full review of the resourcing needs of the judicial system, noting that there has not been any such review in recent decades. Alongside this review, governments should facilitate an open public discussion about the economic, social and civic importance of meeting the resourcing needs of courts and tribunals. 

4.2 As a minimum standard, every tribunal should have the power to allow a party to be represented in proceedings, where it is deemed necessary to ensure a fair outcome in the proceedings, such as: • if there is a power imbalance between the parties, for example the other party is evidently a repeat player or a professional advocate; • a party clearly lacks legal capability; • a party is particularly vulnerable – such as a potential victim of family violence or elder abuse; and • the consequences of decision-making are highly significant to individual lives. Guidelines should be developed to assist tribunals to exercise this power consistently with the minimum standard. 

4.3 Guidelines regarding the applicability and use of fee exemptions and waivers should be made clearer and, as much as possible, more publicly known to court participants. Exemption categories and court discretion to grant exemptions should also be reviewed and broadened in certain jurisdictions. Transcript fee waivers should be generally available to clients of legal assistance services and pro bono services. 

4.4 State and territory governments should support the expansion and evaluation of communication intermediary schemes across Australian jurisdictions, involving appropriately qualified, trained and remunerated communication intermediaries who provide impartial and independent advice to the judicial system regarding the person’s communication needs. 

4.5 Commonwealth, state and territory evidence laws should be reviewed and, where appropriate, amended to allow and prompt a more flexible approach to adducing evidence from witnesses with complex communication needs. South Australian legislation could provide a model with respect to vulnerable witnesses, such as those with cognitive impairment or intellectual disability. 

4.6 Australian courts and tribunals should review their current interpreter practices and procedures against the recommended standards set out in the Judicial Council of Cultural Diversity’s Recommended National Standards for Working with Interpreters in Courts and Tribunals. Governments should provide courts and tribunals with adequate resources to ensure all courts and tribunals can implement these standards. 

4.7 The National Judicial College of Australia should consider establishing a dedicated disability committee with experts on disability, including people with lived experience of disability. A primary purpose of the committee would be to develop and promote disability training for the judges, magistrates and tribunal members, with the overarching aim of championing cultural change and promoting judicial leadership with regards to disability. It would work closely with disability advocacy groups and people with lived experience of disability. 

4.8 Following a mapping exercise regarding jurisdictional and/or regional need, state and territory governments should establish additional, and continue to support existing, specialist Aboriginal and Torres Strait Islander sentencing courts. Aboriginal and Torres Strait Islander people and organisations should be involved in the design, establishment and evaluation of specialist Aboriginal and Torres Strait Islander sentencing courts. 

4.9 Where required, courts and tribunals should be sufficiently resourced to employ, on an ongoing basis, cultural liaison officers or coordinators. 

4.10 Governments should provide additional,ongoing funding and resources to maintain and, where required, expand rural and remote circuit courts, having regard to their important function in upholding the rule of law and fostering community engagement through a tangible local presence. 

4.11 Where courts are not already doing so, they should be resourced to develop and implement community engagement initiatives with marginalised members of the community who tend to distrust the justice system. Data collection, monitoring and evaluation of such initiatives should be prioritised and developed in consultation with key stakeholders. 

4.12 Further research should be undertaken to build the evidence base for the effectiveness of online courts, tribunals and dispute resolution forums in Australia in assisting people experiencing disadvantage. In particular, governments should prioritise research and policy development regarding: • the forums in which online courts and tribunals are most appropriate; • the availability of sufficient technology to support their effective uptake, particularly in rural, regional and remote areas; • the relative benefits and disadvantages of online courts and tribunals, and to which parties these apply; • their likely impact upon disadvantaged online court and tribunal users, having regard to their technological and legal capability; and • the necessary safeguards which are needed to support disadvantaged users. 

4.13 Having regard to the benefits of facilitatingamoreholisticandcomprehensive resolution of a legal matter and promoting positive behavioural change in participants, and identified best practice examples, both mainstream courts and specialist courts should support the development and implementation of therapeutic jurisprudence and problem-solving approaches to judging for appropriate matters. 

4.14 Giventhatproblem-solvingcourtsandtherapeuticjurisprudence-basedjudgingare only effective if underpinned by alternative, non-custodial sentencing options and diversionary programs, state and territory governments should: • ensure there is legislative support for such sentencing options; and • in line with Recommendation 5.5, invest in accessible, disability-responsive and culturally appropriate support services and diversionary programs to underpin non-custodial supervisory sentences, especially in rural, regional and remote areas to ensure that there is greater parity with urban areas. 

4.15 The National Judicial College of Australia or the Australasian Institute of Judicial Administration should continue to support the development of training for the judiciary regarding the practical application of therapeutic jurisprudence in diverse areas of judging, including in both mainstream courts and specialist courts. 

Critical Support Services Chapter 

5.1 Governments should prioritise support for prevention and early intervention approaches to avoid downstream legal problems. While the exact approaches required will vary depending upon the population and region targeted, and not all services are required for all groups, these relevantly include: • holistic family support services; • mental health services; • drug and alcohol rehabilitation services; • healing, resilience and strength-based programs amongst Aboriginal and Torres Strait Islander peoples; • youth engagement and diversionary programs for young people at risk; • settlement orientation programs for recent arrivals; • behavioural change programs to overcome family violence; and • administrative assistance to obtain key identity documents and drivers licences for people in remote areas and recent arrivals. 

5.2 As part of the preventative and early intervention approaches outlined under Recommendation 5.1, Commonwealth, state and territory governments should expand their support for piloting justice reinvestment initiatives. They should also establish a national, independent justice reinvestment body to provide expertise on these initiatives. 

5.3 Governments should implement a National Justice Interpreter Scheme which ensures that: • professional, appropriate and skilled interpreters are readily available and free to people from culturally and linguistically diverse backgrounds who cannot afford them, including Aboriginal and Torres Strait Islander peoples, recent arrivals, asylum seekers, and people who are trafficked and exploited, at all levels of the justice system, including legal assistance services; • interpreter services and courts are funded to enable the full implementation of the Judicial Council on Cultural Diversity’s Recommended National Standards for Working with Interpreters in Courts and Tribunals; and • the Productivity Commission’s Recommendation 22.3 regarding the development of a National Aboriginal and Torres Strait Islander Interpreter Service is implemented. 

5.4 The role of disability support workers and advocates should be expanded to assist people with disability who require it in their engagement with the justice system, particularly people with cognitive impairment or mental health conditions, to ensure fair procedure, supported decision-making, early intervention and successful exit strategies from institutions. 

5.5 State and territory governments should invest in accessible, disability-responsive and culturally appropriate support services that underpin non-custodial supervisory sentences in rural, regional and remote areas to ensure that there is greater parity with urban areas. 

5.6 State and territory governments should consider the introduction of Work and Development Order schemes, along the lines of the existing New South Wales model, in consultation with affected groups and their representative bodies. 

5.7 In order to increase the likelihood that prisoners and detainees can successfully reintegrate into the community and reduce rates of recidivism, Commonwealth, state and territory governments should prioritise: • prison/detention based therapeutic programs; • more widely available throughcare programs in custodial facilities and in the community; and • ensuring that people exiting prisons and detention facilities have access to secure and appropriate housing. Such programs should have a particular focus on meeting women’s needs, be culturally competent, and accessible to people with disability. They should also be more accessible to people on remand or on short sentences. 

5.8 Having regard to the multiple ways in which lack of housing contributes to and exacerbates poor justice outcomes, legal, policy and service frameworks should be improved to prioritise homelessness prevention, through investment in safe, secure and appropriate housing, including crisis housing, for groups who are at risk of homelessness. Investment in bail accommodation and bail support programs for remandees, and post-release accommodation for prisoners should also be prioritised. Funded housing services should be culturally competent and inclusive. 

5.9 State and territory governments should ensure that people with disability who have been found unfit to stand trial have access to alternative accommodation options that offer appropriate and joined-up services.  

Broader Justice System Players Chapter 

6.1 The Law Council, as advised by its constituent bodies, recognises and accepts responsibility for engaging with police representative bodies and/or relevant Ministers regarding the following proposals that police forces should: • review, and where necessary develop, protocols/guidelines, training and/or programs in the following areas: - promoting diversion from the criminal justice system where appropriate, including training on best practice approaches to exercising discretionary police powers; - ensuring appropriate identification of primary perpetrators of family violence in incident responses, and avoiding issuing dual orders inappropriately against both parties; - prioritising the protection of, and provision of support to, Aboriginal and Torres Strait Islander women and children subject to violence; - improving understanding of forms of family violence that are under- reported or under-serviced, such as within LGBTI+ or culturally and linguistically diverse communities; - increasing cultural competence of diverse groups’ needs and experiences of the justice system, more informed awareness and identification of people with disability and referrals to appropriate support, and trauma-informed responses; - addressing concerns regarding over-policing and under-policing with respect to particular groups, including Aboriginal and Torres Strait Islander people, people with disability, family violence victims and recent arrivals; • expand diversity strategies, including employing additional police from diverse backgrounds and additional police liaison roles; • expand partnerships with community organisations representing people experiencing disadvantage, including with Aboriginal and Torres Strait Islander leadership; • review accountability and complaints mechanisms in line with the Australian Law Reform Commission’s recent recommendations in its Pathways to Justice report; and • introduce custody notification services in all jurisdictions. 

6.2 The Law Council, as advised by its constituent bodies, recognises and accepts responsibility for engaging with detention bodies (prisons, youth detention and immigration detention centres) and/or relevant Ministers regarding the following proposals that these bodies should: • review, and where necessary establish protocols which facilitate access to legal advice by prisoners and detainees; • review, and where necessary adopt or expand training, guidelines and protocols to: - increase staff cultural competence and awareness; - build more informed awareness and identification of people with disability and referrals to appropriate support; - increase staff awareness of the prevalence and impacts of family violence amongst prisoners and detainees and ensure appropriate support; - refer prisoners and detainees to culturally secure, gender and disability informed rehabilitative programs; - better respond to the needs of LGBTI+ prisoners/detainees, including strategies for determining the placement of transgender and intersex people; - adopt trauma informed approaches more broadly. This may include, where appropriate, limiting internal prison processes such as strip- searching that can aggravate trauma; and • implement the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’) under compliance frameworks with clear accountability and transparency mechanisms. These frameworks should be developed by each state and territory, in consultation with the Commonwealth Government. 

6.3 Government agencies (for example, social security, immigration, housing, child protection) which frequently deal with people experiencing disadvantage, and whose frontline decisions can increase demands for civil legal assistance, should: • be responsive to the legal capabilities of target system users; • consult with key communities affected by administrative policies and practices to enable the design of responsive and accessible service delivery; • adopt plain English, accessible formats and the use of translators/interpreters in dealings and correspondence with the public; • design internal departmental processes to handle complaints or mistakes to provide clear explanations to clients in accordance with a fair process; • resource independent, accessible complaint systems, equipped with effective investigative and reporting powers; and • enable effective recourse to judicial review for administrative decision-making, as well as full merits review for administrative decisions that will, or are likely to, affect the interests of a person. 

6.4 A national review of Aboriginal and Torres Strait Islander children in child protection, and associated state and territory laws and practices should be conducted, in line with the Australian Law Reform Commission’s recent recommendations. As indicated at Recommendation 7.7, this should be complemented by a national target to eliminate the over-representation of Aboriginal and Torres Strait islander children in out-of-home care as part of the Closing the Gap Framework. Addressing barriers to the full implementation of the Aboriginal and Torres Strait Islander Child Placement Principle should be a priority. 

Governments and Policymakers Chapter 

7.1 A Council of Australian Governments Access to Justice Framework should be developed to engender a stronger cross-jurisdictional, whole-of-government commitment towards ensuring access to justice. This would commit to: • whole-of-government recognition of access to justice, including access to timely and effective legal assistance, as a fundamental ingredient in preventing and overcoming disadvantage, tackling complex social problems; avoiding downstream government expenditure, and underpinning Australian democracy and the rule of law; • driving a broader, less ‘siloed’ approach to justice issues through an agenda which addresses both legal and underlying needs through seamless approaches for different groups experiencing disadvantage; • seeking to understand different groups’ pathways into, through and out of the justice system, and targeting integrated responses to critical intervention points, including prevention and early intervention, crisis point and ‘exit’ strategies; • providing a conceptual basis for more targeted national strategies which are designed to address acute, interrelated social and justice issues amongst particular groups, such as those set out at Recommendation 7.7; • building systemic supports for flexible, tailored, and place-based solutions which build on local community strengths; • building the public’s understanding of everyday legal problems and how to address them; and • building a nationally consistent data collection system and stronger evidence base across the justice system. 

7.2 State and territory governments should provide substantial additional funding to Aboriginal and Torres Strait Islander community-controlled legal services, over and above Commonwealth funding levels, in line with the Productivity Commission’s 2014 recommendation. At the same time, the Commonwealth should increase its own contribution to these services, given the growing, critical unmet legal needs amongst Aboriginal and Torres Strait Islander peoples and the unique role of such services in meeting their needs. 

7.3 Justice Impact Tests should be introduced at the Commonwealth, state and territory level to facilitate the smoother development of laws and policies which have downstream impacts on the justice system. These tests should: • consider the United Kingdom Justice Impact model as a potential guide, including its principle of agency accountability for downstream justice system costs; • be mandatory for all government agencies and apply to justice impacts within both the civil and criminal justice systems; • be overseen by central treasury or finance agencies, as well as justice departments; • be conducted early in the policy development process; • mandate early engagement with key justice sector representatives, including the legal assistance sector, courts and tribunals, corrections, youth justice and legal professional peak bodies to identify and assess likely impacts; • incorporate mechanisms to account periodically for incremental and cumulative system impacts; and • be subject to consistent evaluation to improve impact assessment mechanisms over time. 

7.4 Commonwealth, state and territory governments should adopt law and policy development processes which ensure that the social impact of laws and policies upon diverse populations are better understood, measured and evaluated. These should: • have regard to the potential of laws and policies to entrench disadvantage, including through unforeseen consequences; • be evidence-based in their design, implementation and evaluation, particularly identifying their impacts upon different disadvantaged groups; • where appropriate, consider the adoption of non-legislative policy alternatives to resolve complex social problems, with an emphasis on addressing the underlying issues which drive individuals’ engagement with the justice system, particularly the criminal justice system; • be based on respect for, and meaningful engagement with, the communities they will affect, having regard to their lived experience; • include a stronger policy focus upon the needs and experiences of groups who are often ‘invisible’ in policymaking; • adopt a measured approach to law and policy development to facilitate better consultation and knowledge about their likely impacts; and • recognise and support the important role played by legal assistance services (Recommendations 2.12 and 2.13) and representative bodies in advocating for law and policy reform on behalf of people experiencing disadvantage. 

7.5 Commonwealth, state and territory governments should adopt Aboriginal Justice Impact Assessments to ensure that the consequences for Aboriginal and Torres Strait Islander people of law and policy decisions are adequately accounted for and considered, and to prompt more meaningful community engagement. 

7.6 Commonwealth, state and territory governments should (respectively, as appropriate) consider review and reform in the following priority areas of law, policy and practice, given their disproportionate impact on disadvantaged groups: • fines, penalty and infringement notices; • ‘law and order’ approaches, including the repeal of mandatory sentencing laws and reform of bail and parole laws and conditions which disproportionately affect such groups; • youth justice laws, policies and practices; • child protection systems, including their intersection with family violence protection systems; • public housing, tenancy and eviction; • unfitness to stand trial; • asylum seeker and immigration detention; and • certain social security laws and programs, particularly the Community Development Program and Cashless Debit Card Program. 

7.7 Commonwealth, state and territory governments should adopt comprehensive, whole-of-government strategies or initiatives to drive improvements in specific areas of concern, including: • the adoption of Closing the Gap targets and supporting frameworks to reduce rates of Aboriginal and Torres Strait Islander incarceration, family violence, and child removal; • state and territory Disability Justice Plans where these are currently lacking, incorporating a focus on the needs of groups experiencing intersectional disadvantage, including Aboriginal and Torres Strait Islander peoples; • establishing a Commonwealth LGBTI+ Human Rights Commissioner; and • incorporating state and territory government responsibilities into the next National Action Plan on Trafficking and Exploitation. 

7.8 Governments should lead a coordinated and sustained effort to improve data collection about the justice system and to fill knowledge gaps, particularly with respect to disadvantaged groups’ interaction with the system, to ensure that decision-making and law and policy development is evidence-based. Relevant gaps include: • a periodic Legal Australia Wide Survey as a general population survey, which is now well overdue; • more targeted periodic surveys which explore the legal needs, pathways followed and outcomes of different groups experiencing disadvantage within the justice system; • a serious commitment to learn ‘what works’, cost-effectively, for whom and in what circumstances to address community legal needs; • a coordinated, long-term effort between Commonwealth, state and territory governments, courts and tribunals, the profession and the legal assistance sector, to improve justice sector data consistency and reliability to ensure that it is useful and readily available for planning and monitoring; and • the establishment of an independent national justice reinvestment body, as recommended in Recommendation 5.2.

Apologies

The Tasmanian Attorney-General has announced that the state Government will introduce legislation in 2016 to expunge historic criminal records for consensual homosexual sexual activity.

The announcement indicates that

The Tasmanian Liberal Party, both in Opposition and in Government, has supported expunging historic criminal records for homosexual activity which was previously illegal.

Additionally, a formal apology to those affected, including families and loved ones of those who are deceased, will be made when the legislation is introduced in the house.

The legislation will expunge convictions for the following offences:

Section 122(a) – sexual intercourse against the order of nature;

Section 122(c) – consensual sexual intercourse between males; and

Section 123 – indecent practices between males.

These sections of the Tasmanian Criminal Code were repealed in 1997 after homosexuality was decriminalised in Tasmania but the repeal did not address the implications for those with existing criminal records pertaining to consensual homosexual activity.

The legislation will ensure that any individual prosecuted under these offences will no longer suffer distress or be disadvantaged by a criminal record in relation to travel, employment, and volunteering.

The legislation will also allow other offences under which people may have been charged for consensual homosexual activity to be added by regulation at a later date so these historical offences can also be expunged from a person’s criminal record.

I thank the Anti-Discrimination Commissioner for her report titled ‘Treatment of historic records for consensual homosexual sexual activity and related conduct’, which has helped to progress this important issue.

The Government has approved some variations from the model for expunging offences proposed by the Anti-Discrimination Commissioner, in order to allow us to implement legislation and open the scheme to expunge offences as efficiently and as soon as possible.

Rather than requiring the establishment of a Historic Criminal Records Expert Panel as proposed by the Commissioner, applications will be processed through the Secretary of the Department of Justice, consistent with how other jurisdictions manage this process.

The Anti-Discrimination Commissioner's April 2015 report [PDF] has the following recommendations

R1 A dedicated scheme is established to enable historic criminal and related records relating to homosexual activities or activities arising because of a person’s diverse sexual orientation or gender identity to be expunged.

R2 All criminal and related records arising from consensual sexual activity and related conduct in situations where the applicant would not have been dealt with by police but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature or because of their sexual orientation or gender identity are covered by the scheme, including:

(a) historic criminal records arising in relation to sections 122(a) and (c), and 123 of the Criminal Code involving consensual sexual activity;

(b) historic criminal records arising in relation to other repealed offences used to prosecute activity of a homosexual nature or because of a person’s sexual orientation or gender identity;

(c) historic criminal records arising in relation to associated offences where the applicant would not have been charged but for the fact that the applicant was being dealt with in relation to engaging in conduct of a homosexual nature or their sexual orientation or gender identity;

(d) historic criminal records related to any other offence by which homosexual and perceived homosexual conduct or conduct related to a person’s sexual orientation or gender identity could be punished that do not represent an offence under current law or with which a person could still be charged where a record would not have been arisen but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature; and

(e) historic criminal records related to any offence of attempting, conspiring or inciting to commit any of the offences outlined above

R3 The scheme have the capacity for the expunction of historic criminal records of persons of diverse sexual orientation or gender identity in all circumstances where the conduct was otherwise lawful for those in the broader community.

R4 The scheme has the capacity for the expunction of historic criminal records for offences that took place in association with the primary offence and/or records for inchoate offences relating to the primary offence.

R5 Where age is relevant to consideration of whether an act is eligible to be permanently disregarded, the test to be used is whether the same behaviour between males and females would be considered lawful or unlawful in the circumstances.

R6 Any conviction of a young person (and related records), in circumstances where they were the subject of non-consensual sexual abuse by an older person, also be eligible to be permanently disregarded.

R7 The scheme enable a spouse, domestic partner, child, parent, sibling, personal representative or other appropriate representative to seek the posthumous expunction of relevant historic criminal records.

R8 The Government consider issuing a formal apology to those who have suffered because of actions by authorities resulting in a historic criminal record and to the family and loved ones of those who are deceased.

R9 The Government seek the grant of a royal pardon to deceased persons who were convicted under relevant sections of the Tasmanian Criminal Code and other Tasmanian or colonial laws who, as a result of the time that has elapsed since their death, no longer have a spouse, domestic partner, child, parent, sibling or personal representative to make application for a conviction to be disregarded.

R10 Legislation be prepared to establish a dedicated scheme to enable historic criminal records to be expunged with the effect of:

(a) restoring all legal rights as if the historic criminal record had not been made;

(b) providing the right of non-disclosure of all expunged records under all circumstances;

(c) separating all expunged criminal and related records (and all references to them) from a person’s criminal and other records and empowering the Registrar to have custody of those records;

(d) destroying all duplicates of all expunged relevant criminal and other records;

(e) ensuring that the applicant’s privacy and that of any other relevant person are respected; and

(f) prohibiting the disclosure of any information relating to the conviction or related material.

R11 A Historic Criminal Records Expert Panel (HCREP) be established comprising the Anti-Discrimination Commissioner, the Registrar under the Working with Vulnerable People Act 2013 and the Dean of Law at the University of Tasmania. The Panel be authorised authority to make decisions, including binding orders, on applications for expunction of relevant records.

R12 The Anti-Discrimination Commissioner be appointed as Registrar of the scheme.

R13 The Historic Criminal Records Expert Panel be empowered to request and receive all record s considered relevant to assessing an application.

R14 A person who believes they have a historic criminal record that should be permanently disregarded be required to complete an application form, providing details of relevant records and offences, including information relating to the incidents leading to the conviction or other police action.

R15 The application form should authorise the conduct of a police record search and consent to access any other relevant records.

R16 The Registrar be authorised to provide the applicant with access to any records on the basis that any information contained within the records related to the identity or personal details of any person other than the applicant not to be disclosed.

R17 It be an offence to knowingly give the Historic Criminal Records Expert Panel false or misleading information.

R18 If the Historic Criminal Records Expert Panel is satisfied that an order to permanently disregard a historic criminal record was based on false or misleading information or documents that are false or misleading, the Historic Criminal Records Expert Panel be empowered to determine that the historic criminal record is no longer to be disregarded and the record reinstated; with such decisions to be subject to the same review rights as a decision not to order a record be permanently disregarded.

R19 Information provided to the Historic Criminal Records Expert Panel as part of the application and during subsequent investigation not be capable of being used in any proceedings for perjury or similar offences related to statements or evidence given at the time of the original offence.

R20 Decisions to expunge relevant records be binding on all authorities.

R21 A decision that a historic criminal record is not eligible to be disregarded or to reinstate a permanently disregarded record be reviewable by a magistrate in private session under amended provisions of the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas).

R22 Relevant authorities are required to notify the record holder prior to decision or the release of information for other purposes where a record is identified that may be eligible to be expunged. This includes procedures for the conduct of police record checks and the assessment of applications for registration under the Registration to Work with Vulnerable People Act 2013 (Tas).

R23 An order for expunction is to apply to all government records, including official police records, general police records, court documents and general government records.

R24 Expunged historic records be permanently held by the Registrar of the scheme, with all remaining records to contain no indication of the nature of the amendment.

R25 Secondary records or duplicate files held in paper or electronic format related to historic criminal records that are to be expunged should be destroyed.

R26 Where the Historic Criminal Records Expert Panel has ordered that a record be expunged, disclosure of information regarding that record be an offence carrying a  serious penalty and the mechanism for investigation and prosecution of such an offence is specified clearly in the legislation.

R27 The Attorney General liaise with the Attorneys General of the Commonwealth and other states and the territories to establish a mechanism for the identification and expunction of all relevant records that have been pro vided to or received from another jurisdiction.

R28 Consequential amendments be made to the Archives Act 1983 (Tas) to give effect to the intent of the scheme.

R29 The definition of ‘irrelevant criminal record’ in section 3 of the Anti-Discrimination Act 1998 (Tas) be amended to included records expunged under the scheme.

R30 Consequential amendments be made to the Annulled Convictions Act 2003 (Tas) and related legislation to provide for the non-disclosure of expunged historic criminal records.

R31 The Registration to Work with Vulnerable People Act 2013 (Tas) be amended as necessary to prohibit consideration of any records expunged under the scheme.

R32 The Registrar of the scheme have authority to release expunged records in specific circumstances.

R33 Arrangements are established to enable, including through an application costs reimbursement mechanism, necessary assistance to be provided to applicants by Community Legal Centres in Tasmania together with bodies in other states and territories such as the Human Rights Law Centre and the Public Interest Advocacy Centre.

R34 Additional resources are made available to the Anti-Discrimination Commissioner to cover the one-off establishment activities for the scheme and the ongoing administrative, investigative and communication activities

Decriminalisation of affinity

'The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States' by Marie-Amelie George in (2015) 24(2) Journal of the History of Sexuality 225-61 comments

 Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978.

This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.

ALRC Freedoms Inquiry

The Australian Law Reform Commission has released the 130 page issues paper regarding its inquiry into traditional rights and freedoms.

The iquiry is independent of the freedoms inquiry being undertaken by 'Freedoms Commissioner' Tim Wilson under AHRC auspices.

The ALRC has asked the following questions in its paper -

Freedom of Speech

Q2–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?

Q2–2 Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?

Freedom of Religion

Q3–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?

Q3–2 Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?

Freedom of Association

Q4–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of association is justified?

Q4–2 Which Commonwealth laws unjustifiably interfere with freedom of association, and why are these laws unjustified?

Freedom of Movement

Q5–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of movement is justified?

Q5–2 Which Commonwealth laws unjustifiably interfere with freedom of movement, and why are these laws unjustified?

Property Rights

Q6–1 What general principles or criteria should be applied to help determine whether a law that interferes with vested property rights is justified?

Q6–2 Which Commonwealth laws unjustifiably interfere with vested property rights, and why are these laws unjustified?

Retrospective Laws

Q7–1 What general principles or criteria should be applied to help determine whether a law that retrospectively changes legal rights and obligations is justified?

Q7–2 Which Commonwealth laws retrospectively change legal rights and obligations without justification? Why are these laws unjustified?

Fair Trial Question

Q8–1 What general principles or criteria should be applied to help determine whether a law that limits the right to a fair trial is justified?

Q8–2 Which Commonwealth laws unjustifiably limit the right to a fair trial, and why are these laws unjustified?

Burden of Proof

Q9–1 What general principles or criteria should be applied to help determine whether a law that reverses or shifts the burden of proof is justified?

Q9–2 Which Commonwealth laws unjustifiably reverse or shift the burden of proof, and why are these laws unjustified?

The Privilege against Self-incrimination

Q10–1 What general principles or criteria should be applied to help determine whether a law that excludes the privilege against self-incrimination is justified?

Q10–2 Which Commonwealth laws unjustifiably exclude the privilege against self-incrimination, and why are these laws unjustified? 

Client Legal Privilege

Q11–1 What general principles or criteria should be applied to help determine whether a law that abrogates client legal privilege is justified?

Q11–2 Which Commonwealth laws unjustifiably abrogate client legal privilege, and why are these laws unjustified?

Strict and Absolute Liability

Q12–1 What general principles or criteria should be applied to help determine whether a law that imposes strict or absolute liability for a criminal offence is justified?

Q12–2 Which Commonwealth laws unjustifiably imposes strict or absolute liability for a criminal offence, and why are these laws unjustified?

Appeal from Acquittal

Q13–1 What general principles or criteria should be applied to help determine whether a law that allows an appeal from an acquittal is justified?

Q13–2 Which Commonwealth laws unjustifiably allow an appeal from an acquittal, and why are these laws unjustified?

Procedural Fairness

Q14–1 What general principles or criteria should be applied to help determine whether a law that denies procedural fairness is justified?

Q14–2 Which Commonwealth laws unjustifiably deny procedural fairness, and why are these laws unjustified?

Delegating Legislative Power

Q15–1 What general principles or criteria should be applied to help determine whether a law that delegates legislative power to the executive is justified?

Q15–2 Which Commonwealth laws unjustifiably delegate legislative power to the executive, and why are these laws unjustified?

Authorising what would otherwise be a Tort

Q16–1 What general principles or criteria should be applied to help determine whether a law that authorises what would otherwise be a tort is justified?

Q16–2 Which Commonwealth laws unjustifiably authorise what would otherwise be a tort, and why are these laws unjustified?

Executive Immunities

Q17–1 What general principles or criteria should be applied to help determine whether a law that gives executive immunities a wide application is justified?

Question 17–2 Which Commonwealth laws unjustifiably give executive immunities a wide application, and why are these immunities unjustified?

Judicial Review

Q18–1 What general principles or criteria should be applied to help determine whether a law that restricts access to judicial review is justified?

Q18–2 Which Commonwealth laws unjustifiably restrict access to judicial review, and why are these laws unjustified?

Others Rights, Freedoms and Privilege

Q19–1 Which Commonwealth laws unjustifiably encroach on other common law rights, freedoms and privileges, and why are these laws unjustified?

PC Access To Justice report

The Productivity Commission has released its two volume report on Access To Justice.

The first volume deals with the accessibility of the justice system, use of alternative forms of dispute resolution, regulation of the legal profession and the structure and operations of ombudsmen, tribunals and courts. The second volume discusses private funding of litigation and the provision of legal aid (generally and specifically to Aboriginal and Torres Strait Islander people).

Key points are

• There are widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial. But the notion of a civil justice ‘system’ is misleading. Parties can resolve their disputes in many ways, including through courts, tribunals and ombudsmen. Each differs in its formality, cost and timeliness. Such a complex system resists both a single diagnosis and remedy. 
• While much focus is on the courts, the central pillar of the justice system, much is done in their shadow, with parties resolving their disputes privately. Community legal education, legal information (including self-help kits) and minor advice help ensure that parties are better equipped to do so. Better coordination and greater quality control in the development and delivery of these services would improve their value and reach. 
• Where disputes become intractable, parties often have recourse to a range of low cost and informal dispute resolution mechanisms. But many people are unnecessarily deterred by fears about costs and/or have difficulty in identifying whether and where to seek assistance. A well-recognised entry point or gateway for legal assistance and referral would make it easier to navigate the legal system. 
• Most parties require professional legal assistance in more complex matters. But the interests of lawyers and their clients do not always align. Reforms to professional regulation are required to ensure clients are better informed and have more options for selecting the tasks they want assistance with, and how they will be billed. Clients should also have independent and effective options for redress when professional standards fall short. 
• Some disputes, by their nature, are more appropriately handled through the courts. While these disputes may be small in number, many individuals are poorly placed to meet the associated costs. Court processes in all jurisdictions have undergone reforms to reduce the cost and length of litigation. But progress has been uneven and more needs to be done to avoid unnecessary expense. 
• The ways in which parties interact with each other and with courts and tribunals also needs to change. The adversarial behaviour of parties and their lawyers can hinder the resolution of disputes or even exacerbate them. Changes to rules governing the conduct of parties and lawyers, and the way in which costs are awarded, would improve incentives to cooperate. 
• Court fees vary widely across courts and jurisdictions and are not set with reference to a common framework. A more systematic approach is required for determining fees. Parties can derive significant private benefits from using the court system; these benefits need to be reflected in court charges, which in many cases should be increased. 
• Disadvantaged Australians are more susceptible to, and less equipped to deal with, legal disputes. Governments have a role in assisting these individuals. Numerous studies show that efficient government funded legal assistance services generate net benefits to the community. 
• The nature and predictability of funding arrangements constrain the capacity of legal assistance providers to direct assistance to the areas of greatest benefit. This needs to change and, in some cases, funding should be redirected. 
• While there is some scope to improve the practices of legal assistance providers, this alone will not address the gap in services. More resources are required to better meet the legal needs of disadvantaged Australians.

In undertaking the inquiry the Commission was required to "examine the current costs of accessing justice services and securing legal representation, and the impact of these costs on access to, and quality of justice", making recommendations on "the best way to improve access to the justice system and equity of representation including, but not limited to, the funding of legal assistance services". It was to have particular regard to:

1. an assessment of the real costs of legal representation and trends over time

2. an assessment of the level of demand for legal services, including analysis of: (a) the number of persons who cannot afford to secure legal services but who do not qualify for legal assistance services, and (b) the number of pro bono hours provided by legal professionals

3. the factors that contribute to the cost of legal representation in Australia, including analysis of: (a) the supply of law graduates and barriers to entering the legal services market (b) information asymmetry (c) other issues of market failure (d) the structure of the legal profession in State and Territory jurisdictions (e) legal professional rules and practices (f) court practices and procedures (g) models of billing practices (h) the application of taxation laws to legal services expenditure, and (i) other features of the legal services market which drive costs

4. whether the costs charged for accessing justice services and for legal representation are generally proportionate to the issues in dispute

5. the impact of the costs of accessing justice services, and securing legal representation, on the effectiveness of these services, including analysis of: (a) the ability of disadvantaged parties, including persons for whom English is a second language, to effectively self-represent, and (b) the extent to which considerable resource disparity impacts on the effectiveness of the adversarial system and court processes

6. the economic and social impact of the costs of accessing justice services, and securing legal representation

7. the impact of the structures and processes of legal institutions on the costs of accessing and utilising these institutions, including analysis of discovery and case management processes

8. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures: (a) early intervention measures (b) models of alternative dispute resolution (c) litigation funding (d) different models of legal aid assistance (e) specialist courts or alternative processes, such as community conferencing (f) use of technology, and (g) expedited procedures

9. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system, and

10. data collection across the justice system that would enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.

Traditional Freedoms and Privileges

The national Attorney-General has released Terms of Reference for the 'Traditional Freedoms Inquiry' by the ALRC noted - most irreverently - last year

The ALRC is to inquire and report regarding

• the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and 
• a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified. 

Alas, no specific reference to traditional duties.

For the purpose of the exercise the "laws that encroach upon traditional rights, freedoms and privileges"are to be understood as laws that:

•  reverse or shift the burden of proof; 
• deny procedural fairness to persons affected by the exercise of public power; 
• exclude the right to claim the privilege against self-incrimination; 
• abrogate client legal privilege; 
• apply strict or absolute liability to all physical elements of a criminal offence; 
• interfere with freedom of speech; 
• interfere with freedom on religion; 
• interfere with vested property rights; 
• interfere with freedom of association; 
• interfere with freedom of movement; 
• disregard common law protection of personal reputation; 
• authorise the commission of a tort; 
• inappropriately delegate legislative power to the Executive; 
• give executive immunities a wide application; 
• retrospectively change legal rights and obligations; 
• create offences with retrospective application; 
• alter criminal law practices based on the principle of a fair trial; 
• permit an appeal from an acquittal; 
• restrict access to the courts; and
• interfere with any other similar legal right, freedom or privilege. 

The ALRC is to include consideration of Commonwealth laws in the areas of, but not limited to commercial and corporate regulation, environmental regulation and workplace relations.

In considering what, if any, changes to Commonwealth law should be made, the ALRC should consider: how laws are drafted, implemented and operate in practice; and any safeguards provided in the laws, such as rights of review or other accountability mechanisms.

The ALRC should also have regard to other inquiries and reviews that it considers relevant.

Privacy and the ALRC Disability & Equality Inquiry

In the Equality, Capacity & Disability discussion paper highlighted here the Australian Law Reform Commission has discussed information privacy and the PCEHR.

The comments on information privacy are -

The Privacy Act is Australia’s key information privacy law. The Act is concerned with the protection of personal information held by certain entities, rather than with privacy more generally. Personal information is defined in s 6(1) of the Act as information or opinion about an identified individual, or an individual who is reasonably identifiable, whether or not true and whether or not in material form. 

The Privacy Act provides 13 ‘Australian Privacy Principles’ (APPs) that set out the broad requirements on collection, use, disclosure and other handling of personal information. The APPs bind only ‘APP entities’—primarily Australian Government agencies and large private sector organisations with a turnover of more than $3 million. Certain small businesses are also bound, such as those that provide health services and those that disclose personal information to anyone else for a benefit, service or advantage. Generally, individuals are not bound by the Privacy Act. 

Privacy of health information may be a special concern for people with disability. Health and genetic information is ‘sensitive information’ that is subject to stronger protection under the APPs. Separate Commonwealth legislation protects healthcare identifiers and eHealth records. 

The major issue for stakeholders was to ensure that personal information is able to be shared appropriately in order to support people with disability. National Disability Services, for example, stated: 

The key challenge is often to transfer sufficient personal information (such as medication requirements or worker safety issues) that will enable the provision of high quality, tailored and safe support, while also protecting the right to privacy. 

There is a public interest in families and friends being involved in the care and treatment of people with a mental illness, for example, and this clearly involves the sharing of information. The NSWCID observed that, for a person with an intellectual disability, there may be ‘numerous times in a month when an agency needs to obtain information about the person from a range of sources and provide information to a range of agencies or individuals’. The ACT Disability, Aged & Carer Advocacy Service noted:

If [supported decision-making] frameworks are to reduce or replace the use of guardianship, consideration needs to be given to how relevant information can be shared with decision supporters while balancing the right of people with disability to privacy. 

Individual decision-making and the Privacy Act 

The Privacy Act makes no express provision for supporters or representatives to be recognised as acting on behalf of an individual in relation to decisions about the handling of personal information held by APP entities. 

Some state privacy legislation does provide for representatives. The Health Records and Information Privacy Act 2002 (NSW), for example, provides for the position of an ‘authorised representative’ to act on behalf of an individual who is ‘incapable of doing an act authorised, permitted or required’ by the Act. 

An authorised representative may not do an act on behalf of an individual who is capable of doing that act, unless the individual expressly authorises the authorised representative to do that act. 

An ‘authorised representative’ for these purposes means a person appointed under an enduring power of attorney, a guardian, a person having parental responsibility (if the individual is a child), or person who is ‘otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual’. Essentially, therefore, the Health Records and Information Privacy Act 2002 provides recognition for representatives, but not for supporters, as those terms are used in this Discussion Paper. 

The ALRC has considered previously whether the Privacy Act should include provision for representatives. In its 2008 report, For Your Information: Australian Privacy Law and Practice, the ALRC recommended that the Privacy Act should be amended to include the concept of a ‘nominee’. An agency or organisation would be able to establish nominee arrangements and then ‘deal with an individual’s nominee as if the nominee were the individual’. The ALRC recommended that nominee arrangements should include, at a minimum, the following elements:

(a) a nomination can be made by an individual or a substitute decision maker authorised by a federal, state or territory law; (b) the nominee can be an individual or an entity; (c) the nominee has a duty to act at all times in the best interests of the individual; and (d) the nomination can be revoked by the individual, the nominee or the agency or organisation. 

The ALRC concluded that establishing nominee arrangements would ‘provide flexibility for individuals to decide who can act as their “agent” for the purposes of the Privacy Act, and also operate as a useful mechanism in situations where an individual has limited, intermittent or declining capacity’. 

The rationale for the original ALRC recommendations was to address problems faced by individuals and their representatives in gaining access to benefits and services due to perceived or real conflicts with the Privacy Act. That is, organisations refusing to provide information or deal with supporters ‘because of the Privacy Act’. Similar concerns were expressed in this Inquiry. 

The ALRC’s 2008 recommendations would have provided recognition for both supporters and representatives. 

The ALRC envisaged that a nominee could be either nominated by the individual or a substitute decision-maker appointed under some other law. While it would not be necessary for an authorised substitute decision-maker to be registered as a nominee for the agency or organisation to recognise that person, the nominee arrangements were seen as a convenient way for the decision-maker to be recognised for ongoing dealings with the agency or organisation. 

The Commonwealth model and the Privacy Act Proposal 6–4 

The Privacy Act 1988 (Cth) should be amended to include supporter and representative provisions consistent with the Commonwealth decision-making model. 

Successive Australian Governments have not responded to the ALRC’s recommendations concerning decision-making arrangements under the Privacy Act. There seems good reason to revisit this issue in the context of the present Inquiry. 

The Privacy Act does not prevent a supporter from providing assistance to the individual where this is done with the consent of the individual. Where the assistance requires the supporter to have access to the personal information of the individual, the individual can provide consent for the agency or organisation to disclose the information to the supporter. Sometimes it should be quite clear, for example, that a requested disclosure of personal information would be covered by APP 6. 

There are concerns, however, that such arrangements are not implemented consistently, or recognised by agencies and organisations. 

The NSWCID submitted:

So far as possible, people with intellectual disability should be given the support that they need to make their own privacy decisions. If this is not adequate, there needs to be a legislative system of substitute consent and/or administrative safeguards that provides reasonable safeguards on the privacy of the individual whilst also recognising that other rights of the individual may be imperilled if personal information cannot be gathered and promptly used as occasions arise.

If the privacy rules covering this sort of information exchange are ‘cumbersome or complex’, then optimal support of people with intellectual disabilities will not occur. Other stakeholders referred to the desirability of uniform Commonwealth, state and territory privacy regulation. 

The advantages of recognising supporters in Commonwealth laws are discussed in Chapter 4. In particular, formalisation of support is likely to create greater certainty for third parties about the role of supporters, and facilitate the provision of support to people who need it. In the context of information privacy, this is likely to allow third parties to interact with supporters with greater confidence, allowing for timely collection, use and disclosure of information. 

There is a downside to this approach, in that legislative arrangements may work against flexible practices by encouraging the perception that a supporter must be formally appointed in order to be recognised. However, more informal arrangements may not be implemented consistently or recognised by APP entities. Some form of legislative underpinning may be more effective in establishing recognition of supporters. 

In the ALRC’s view, the Privacy Act should be amended to include supporter and representative provisions consistent with the Commonwealth decision-making model. The new provisions would apply potentially to an individual’s relationships with the full range of APP entities—Commonwealth government agencies and private sector organisations. 

The Privacy Act should permit APP entities to establish a supporters and representatives scheme, but this should not be mandatory. APP entities need to retain the flexibility to develop practices and procedures consistent with their broader operations. Agencies and organisations also may be subject to other obligations—such as the bankers’ duty of confidentiality or particular legislative provisions—which place limits on decision-making by supporters. Each agency and organisation must consider the extent to which it is able to recognise and act upon decisions made by a supporter. 

Incorporating the Commonwealth decision-making model within the Privacy Act may facilitate assistance for people in making and communicating decisions concerning control of their personal information by recognising supporters, including family and carers, as being able to act on their behalf. At the least, supporters should be recognised and be made subject to a duty to support an individual’s will and preferences in relation to the handling of their personal information. 

However, some circumstances will require a more rigorous process for appointment and verification than others, due to the potential consequences of the disclosure of personal information or the transaction involved. For example, a bank or other financial institution might establish an arrangement that has effect for the purposes of disclosing account balances and banking transactions, but does not extend to a supporter withdrawing funds from an account on behalf of the individual, without putting further integrity measures in place.