ADA

The NSW Law Reform Commission discussion paper on its review of the Anti-Discrimination Act 1977 (NSW) (ADA) reflects Terms of Reference regarding 

1. whether the Act could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards 

2. whether the range of attributes protected against discrimination requires reform 

3. whether the areas of public life in which discrimination is unlawful should be reformed 

4. whether the existing tests for discrimination are clear, inclusive and reflect modern understandings of discrimination 

5. the adequacy of protections against vilification, including (but not limited to) whether these protections should be harmonised with the criminal law 

6. the adequacy of the protections against sexual harassment and whether the Act should cover harassment based on other protected attributes 

7. whether the Act should include positive obligations to prevent harassment, discrimination and vilification, and to make reasonable adjustments to promote full and equal participation in public life 

8. exceptions, special measures and exemption processes 

9. the adequacy and accessibility of complaints procedures and remedies 

10. the powers and functions of the Anti-Discrimination Board of NSW and its President, including potential mechanisms to address systemic discrimination 

11. the protections, processes and enforcement mechanisms that exist in other Australian and international anti-discrimination and human rights laws, and other NSW laws 

12. the interaction between the Act and Commonwealth anti-discrimination laws 

13. any other matters the Commission considers relevant to these Terms of Reference. 

 The Commission states 

 This is the first of two consultation papers in which we will invite you to share your views on the Anti-Discrimination Act 1977 (NSW) (ADA). In this paper, we consider issues relating to the tests for discrimination, who is protected, the areas in which discrimination is prohibited and exceptions. We also consider harassment, civil vilification and other unlawful acts, as well as liability and measures to promote substantive equality. We ask if any of these aspects of the ADA should change and, if so, how. 

Next steps 

The NSW Attorney General has asked us to review the Anti-Discrimination Act 1977 (NSW) (ADA). Among other things, we have been asked to consider whether the ADA “could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards”. 

... In this consultation paper, we focus on the conduct that is (or should be) unlawful under the ADA. In summary, we seek your views on: • the types of acts and conduct that should be prohibited, and the circumstances in which the prohibitions should apply • the people and groups who should be entitled to the ADA’s protections • the people and organisations who should be held responsible for unlawful conduct, and when (if ever) their actions should be exempt from the ADA, and • whether the ADA should do more to promote substantive equality. 

Our second consultation paper will consider the procedural aspects of the ADA, including complaint pathways, enforcement options, remedies and options for preventing unlawful conduct. 

Background to this review 

The ADA was groundbreaking when it was enacted almost 50 years ago. As the first broad discrimination Act in Australia, it prohibited discrimination based on race, sex and marital status. When the legislation was introduced into the NSW Parliament, the Premier said “I am confident that this legislation is the most enlightened, and will be the most effective, legislation in this field in Australia”. 

Much has changed in NSW since 1977. By the 1990s, there were concerns that the ADA had not stood the test of time. This led to the NSW Government asking the NSW Law Reform Commission (NSWLRC) to review the ADA in 1991. As the NSWLRC explained in it its final report:

The legislation as it currently exists tends to reflect the political and social climate at the time of its enactment. Although the ADA has been amended several times to reflect changing community values, these amendments have been piecemeal. ... Taking into account the length of time that has elapsed since the introduction of the ADA, and the law’s inability to deal once and for all with constantly evolving social, political and legal conditions, it is appropriate that there be a comprehensive review of the legislation. 

Our predecessors’ 8-year review of the ADA was indeed comprehensive. The NSWLRC’s 1999 report made 161 recommendations and contained a Draft Anti- Discrimination Bill. While some recommendations were implemented, most were not. 

In the years since 1999, there have been many changes to discrimination laws across Australia. Other states and territories have reviewed their discrimination laws. Some of these reviews have led to significant legislative reform. There have been developments in employment law and reviews of discrimination laws at the federal level too. 

In 2021, there were renewed calls by community and legal groups for a comprehensive review of the ADA. In announcing this review in 2023, the NSW Attorney General recognised that: There have been monumental shifts in society, demographics and attitudes since the Act came into force nearly half a century ago. … It is essential to conduct reviews of this nature to ensure our laws represent who we are today as a community. 

It could still be said, as the NSWLRC did in 1999, that many aspects of the ADA continue to “reflect the political and social climate at the time of its enactment”. In addition to concerns about its substantive content, many believe the ADA uses outdated and offensive language, and its style and structure is difficult for the community to navigate. 

Our role in this review is to examine the ADA thoroughly and, where necessary, make recommendations to ensure that this law serves our community effectively

The Commission's questions are 

3. Tests for discrimination 

Question 3.1: Direct discrimination Could the test for direct discrimination be improved or simplified? If so, how? 

Question 3.2: The comparative disproportionate impact test Should the comparative disproportionate impact test for indirect discrimination be replaced? If so, what should replace it? 

Question 3.3 Indirect discrimination and inability to comply What are your views on the “not able to comply” part of the indirect discrimination test? Should this part of the test be removed? Why or why not? 

Question 3.4: Indirect discrimination and the reasonableness standard (1) Should the reasonableness standard be part of the test for indirect discrimination? If not, what should replace it? (2) Should the ADA set out the factors to be considered in determining reasonableness? Why or why not? If so, what should they be? 

Question 3.5: Indirect discrimination based on a characteristic Should the prohibition on indirect discrimination extend to characteristics that people with protected attributes either generally have or are assumed to have? 

Question 3.6: Proving indirect discrimination (1) Should the ADA require respondents to prove any aspects of the direct discrimination test? If so, which aspects? (2) Should the ADA require respondents to prove any aspects of the indirect discrimination test? If so, which aspects? 

Question 3.7: Direct and indirect discrimination (1) How should the relationship between different types of discrimination be recognised? (2) Should the ADA retain the distinction between direct and indirect discrimination? Why or why not? 

Question 3.8: Intersectional discrimination (1) Should the ADA protect against intersectional discrimination? Why or why not? (2) If so, how should this be achieved? 

Question 3.9: Intended future discrimination Should the tests for discrimination capture intended future discrimination? Why or why not? If so, how could this be achieved? 

4. Discrimination: protected attributes 

Question 4.1: Age discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “age”? (2) What changes, if any, should be made to the age-related exceptions? 

Question 4.2: Discrimination based on carer’s responsibilities (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “responsibilities as a carer”? (2) Should the ADA separately protect against discrimination based on someone’s status of being, or not being, a parent? 

Question 4.3 Disability discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “disability”? (2) Should a new attribute be created to protect against genetic information discrimination? Or should this be added to the existing definition of disability? (3) What changes, if any, should be made to the public health exception? 

Question 4.4: Discrimination based on homosexuality What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “homosexuality”? 

Question 4.5: Discrimination based on marital or domestic status What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “marital or domestic status”? 

Question 4.6: Racial discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “race”? (2) Are any new attributes required to address potential gaps in the ADA’s protections against racial discrimination? 

Question 4.7: Sex discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “sex”? (2) Should the ADA prohibit discrimination based on pregnancy and breastfeeding separately from sex discrimination? 

Question 4.8: Discrimination on transgender grounds What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “transgender grounds”? 

Question 4.9: Extending existing protections (1) Should the ADA protect people against discrimination based on any protected attribute they have had in the past or may have in the future? (2) Should the ADA include an attribute which protects against discrimination based on being a relative or associate of someone with any other protected attribute? 

5. Discrimination: potential new protected attributes 

Question 5.1: Guiding principles What principles should guide decisions about what, if any, new attributes should be added to the ADA? 

Question 5.2: Potential new attributes (1) Should any protected attributes be added to the prohibition on discrimination in the ADA? If so, which what should be added and why? (2) How should each of the new attributes that you have identified above be defined and expressed? (3) If any of new attributes were to be added to the ADA, would any new attribute- specific exceptions be required? 

Question 5.3: An open-ended list Should the list of attributes in the ADA be open-ended to allow other attributes to be protected? Why or why not? 

6. Discrimination: Areas of public life 

Question 6.1: Discrimination at work — coverage (1) Should the definition of employment include voluntary workers? Why or why not? (2) Should the ADA adopt a broader approach to discrimination in work, like the way the Sex Discrimination Act 1984 (Cth) approaches harassment? Why or why not? (3) Should local government members be protected from age discrimination while performing work in their official capacity? Why or why not? 

Question 6.2: Discrimination in work — exceptions What changes, if any, should be made to the exceptions to discrimination in work? 

Question 6.3: Discrimination in education (1) What changes, if any, should be made to the definition and coverage of the protected area of “education”? (2) What changes, if any, should be made to the exceptions relating to: (a) single-sex educational institutions, and (b) disability and age discrimination in educational institutions? 

Question 6.4: The provision of goods and services — coverage What changes, if any, should be made to the definition and coverage of the protected area of “the provision of goods and services”? 

Question 6.5: Superannuation services and insurance exceptions What changes, if any, should be made to the exceptions applying to insurance and superannuation? 

Question 6.6: The provision of goods and services — exceptions What changes, if any, should be made to the exceptions to sex, age and disability discrimination in relation to the provision of goods and services? 

Question 6.7: Discrimination in accommodation — coverage What changes, if any, should be made to the definition and coverage of the protected area of “accommodation”? 

Question 6.8: Discrimination in accommodation — exceptions What changes, if any, should be made to the exceptions for private households, age-based accommodation and charitable bodies in relation to discrimination in accommodation? 

Question 6.9: Discrimination by registered clubs — coverage What changes, if any, should be made to the definition and coverage of the protected area of “registered clubs”? 

Question 6.10: Discrimination by registered clubs — exceptions What changes, if any, should be made to the exceptions for registered clubs in relation to sex, race, age and disability discrimination? 

Question 6.11: Discrimination based on carer’s responsibilities (1) Should discrimination based on carer’s responsibilities be prohibited in all protected areas of public life? If not, what areas should apply and why? (2) In general, should discrimination be prohibited in all protected areas for all protected attributes? Why or why not? 

Question 6.12: Additional areas of public life (1) Should the ADA apply generally “in any area of public life”? Why or why not? (2) Should the ADA specifically cover any additional protected areas? Why or why not? If yes, what area(s) should be added and why? 

7. Wider exceptions 

Question 7.1: Religious personnel exceptions (1) Should the ADA provide exceptions for: (a) the training and appointment of members of religious orders? (b) “the appointment of any other person in any capacity by a body established to propagate religion”? (2) If so, what should these exceptions cover and when should they apply? 

Question 7.2: Other acts and practices of religious bodies Should the ADA provide an exception for other acts or practices of religious bodies? If so, what should it cover and when should it apply? 

Question 7.3: Exceptions for other forms of unlawful conduct Should the general exceptions for religious bodies continue to apply across the ADA, including to all forms of unlawful conduct under the Act? 

Question 7.4: Exceptions for providers of adoption services Should the ADA have a specific exception for providers of adoption services? If so, what should it cover and when should it apply? 

Question 7.5: Private educational authorities employment exceptions (1) Should the ADA contain exceptions for private educational authorities in employment? Should these be limited to religious educational authorities? (2) If you think the Act should provide exceptions in this area: (a) what attributes should the exceptions apply to? (b) what requirements, if any, should duty holders meet before an exception applies? (a) what attributes should the exceptions apply to? (b) should they apply to prospective students, existing students, or both? (c) what requirements, if any, should duty holders meet before an exception 

Question 7.6: Discrimination against students and prospective students (1) Should the ADA contain exceptions for private educational authorities in education? Should these be limited to religious educational authorities? (2) If you think it is necessary for the ADA to provide exceptions in this area: applies? 

Question 7.7: Exceptions relating to sport Should the ADA provide exceptions to discrimination or vilification in sport? If so, what should they cover and when should they apply? 

Question 7.8: The charities exception Should the ADA provide exceptions relating to charitable benefits? If so, what should they cover and when should they apply? 

Question 7.9: Voluntary bodies exception Should the ADA provide an exception for voluntary bodies? If so, what should it cover and when should it apply? 

Question 7.10: Aged care accommodation providers exception Should the ADA provide an exception for aged care accommodation providers? If so, what should it cover and when should it apply? 

Question 7.11: The statutory authorities exception Should the ADA provide an exception for acts done under statutory authority? If so, what should it cover and when should it apply? 

8. Civil protections against vilification 

Question 8.1: Protected attributes (1) What changes, if any, should be made to the way the ADA expresses and defines the attributes currently protected against vilification? (2) Should the ADA protect against vilification based on a wider range of attributes? If so, which attributes should be covered and how should these be defined? 

Question 8.2: The test for vilification (1) Should NSW adopt a “harm-based” test for civil vilification? If so, should this replace or supplement the existing “incitement-based” test? (2) What, if any, other changes should be made to the incitement-based test for civil vilification? 

Question 8.3: The definition of “public act” What changes, if any, should be made to the definition of “public act” in the test for vilification in the ADA? 

Question 8.4: Exceptions What changes, if any, should be made to the exceptions to the vilification protections in the ADA? 

Question 8.5: Religious vilification What changes, if any, should be made to the protection against religious vilification in the ADA? 

9. Harassment 

Question 9.1: The definition of sexual harassment (1) Should the reasonable person test be expanded to include the “possibility” of offence, intimidation or humiliation? Why or why not? (2) Should the ADA expressly require consideration of an individual’s attributes, or the relationship between the parties, in determining whether a person would be offended, humiliated or intimidated by the conduct? Why or why not? (3) Does the ADA need to define “conduct of a sexual nature”? Why or why not? 

Question 9.2: Other sex-based conduct (1) Should harassment on the ground of sex be expressly prohibited by the ADA? Why or why not? (2) Should the ADA prohibit workplace environments that are hostile on the ground of sex? Why or why not? (3) Are there any other options or models to prohibit conduct which may fall in the gap between sex discrimination and sexual harassment? What could be the benefits of these options? 

Question 9.3: Sexual harassment in the workplace Should the ADA adopt the Sex Discrimination Act’s approach of prohibiting sexual harassment in connection with someone’s status as a worker or person conducting a business or undertaking? Why or why not?  (a) areas of life that are protected from discrimination (b) all areas of public life, or (c) any area of life, public or private? 

Question 9.4: Workplace-related laws regulating sexual harassment (1) Are workplace-related sexual harassment laws and the ADA currently working well together, in terms of the definitions of sexual harassment? (2) Should the ADA and workplace-related sexual harassment laws be more aligned? 

Question 9.5: Expanding the areas of life where sexual harassment is prohibited (1) Should the ADA continue to limit the areas of life where sexual harassment is unlawful? Why or why not? (2) Should sexual harassment be unlawful in other areas of life? For example: 

Question 9.6: The private accommodation exception Should sexual harassment be prohibited in private accommodation? Why or why not? If an exception for private accommodation is required, how wide should it be? 

Question 9.7: Attribute-based harassment If the ADA was to prohibit attribute-based harassment, which attributes and areas should it cover? 

10. Other unlawful acts and liability 

Question 10.1: Victimisation (1) Should the prohibition of victimisation in the ADA expressly extend to situations where a person threatens to victimise someone? Why or why not? (2) Should the ADA provide that victimisation is unlawful even if it was done for two or more reasons? If so, how best could this be achieved? 

Question 10.2: Advertisements Should it be a defence to publishing an unlawful advertisement that the person reasonably believed publication was not unlawful? Why or why not? 

Question 10.3: The forms of liability What, if any, concerns or issues are raised by the ADA’s approach to the various forms of liability? 

Question 10.4: The exceptions for liability Should the ADA continue to provide two exceptions to vicarious liability (that is, the “reasonable steps” and “unauthorised acts” exceptions)? Or is a single “reasonable steps” exception sufficient? 

Question 10.5: Liability and artificial intelligence Does the use of AI challenge the ADA’s approach to liability? If so, how could the ADA be amended to address this? 

11. Promoting substantive equality 

Question 11.1: Adjustments (1) Should the ADA impose a duty to provide adjustments? If so, what attributes should this apply to? (2) Should this be a separate duty, form part of the tests for discrimination, or is there another preferred approach? (3) Should a person with a protected attribute first have to request an adjustment, before the obligation to provide one arises? 

Question 11.2: Special measures (1) Should the ADA generally allow for special measures? Why or why not? (2) If so, what criteria for a special measure should the ADA apply? (3) If a general special measures section is added to the ADA, should it replace the existing exemption and certification processes? Why or why not? 

Question 11.3: A positive duty to prevent or eliminate unlawful conduct (1) Should the ADA include a duty to take reasonable and proportionate measures to prevent or eliminate unlawful conduct? Why or why not? (2) If so: (a) What should duty holders be required to do to comply with the duty? (b) What types of unlawful conduct should the duty cover? (c) Who should the duty holders be? (d) What attributes and areas should the duty apply to?.

Reasons, Reading and Writing

In Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 Bell CJ and Jirk JA state 

[1] The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so “off-label” for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil & Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial “stage 2” hearing is yet to take place. 

[2] The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b). 

[3] Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues: whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a)); whether the Majority erred in rejecting the appellant’s oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues); whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground). 

[4] Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal. 

[5] One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal’s approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P’s discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of “professional misconduct” is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of “unsatisfactory professional conduct” is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. I: ... 

 Reviewing reasons 

[9] When hearing complaints against medical practitioners the Tribunal is required to be constituted by a member of the Occupational Division of the Tribunal who is a senior judicial officer (as defined in s 165), two health practitioners selected for appointment by the relevant Council who are registered in the same health profession as the practitioner in question, and one lay person: Law, s 165B(2); CAT Act, Sch 5, cll 12-13. If the members are evenly divided on a decision (other than a decision of law) then the opinion of the presiding, legal member prevails: CAT Act, s 57(3)(a). Otherwise, for such non-legal decisions, the opinion of the majority prevails: CAT Act, s 57(1). For the Tribunal to be divided in opinion, and for the presiding judicial member to be in dissent, is relatively unusual in disciplinary matters. However, it is appropriate and important that all members diligently come to their own views. 

[10] It is also appropriate that when a court comes to review reasons given by members of the Tribunal who are not lawyers, that characteristic is borne in mind. In its submissions the Commission quoted a statement that a specialist tribunal “consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of ‘a Brennan’ or display the verve and reasoning power of ‘a Denning’”: Seablest Pty Ltd v Smith (1996) 91 LGERA 1 at 4. So much may be accepted. Compressed reasoning, unusual structuring, infelicities of language, inaccurate use of legal phrases, or such like may simply reflect the nature, training and experience of the author. 

[11] Nevertheless, medical and lay members of the Tribunal are still required to give legally adequate reasons. Section 165M of the Law requires the Tribunal to “give a written statement of the decision”, which statement must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based, and give the reasons for the decision. Failure to give adequate reasons may suffice to uphold an appeal in such matters: eg Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353 at [128]-[151]. The reasons must be sufficient to enable a court to see whether the opinion does or does not involve any error of law: note analogously Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [71]-[73]. Given the serious nature of the issues and the potential consequences, there may be little difference in substance from the duty of a court to give reasons: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [55]. 

[12] The Commission sought to emphasise the oft-cited approval by a plurality of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 of statements by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. The plurality in the High Court said (at 272, citations omitted):

it was said [in Pozzolanic] that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” 

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [citing McAuliffe].

[13] Justice Kirby made similar points in Liang at 291, also citing Pozzolanic. As his Honour said there: “The reasons under challenge must be read as a whole. They must be considered fairly”. The plurality’s judgment in Liang is consistent with taking that approach (see eg at 280). 

[14] In Pozzolanic the statement (at 287) about avoiding an “eye keenly attuned to the perception of error” was itself supported by a reference to an earlier judgment of Lockhart J in Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708. It is worth noting what his Honour then went on to say in that case after having deployed that phrase (ibid):

the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole.

[15] Consistently with approaching the task in a sensible and balanced way, a beneficial approach to reasons does not demand that any ambiguity be resolved in favour of the decision-maker: see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); approved eg Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 at [26]; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98 at [116]. 

[16] The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making do allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.

In Seablest Pty Ltd T/A Salamanca Executive Suites v v R and J J Smith, G L and W Lowman, R and J Upcher, B Ambrose, G and M Casimaty and Hobart City Council [1996] TASSC 39 Slicer J stated 

[10]. A specialist Tribunal consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of "a Brennan" or display the verve and reasoning power of "a Denning". It is inappropriate to examine the published reasons in order to expose an unskilled formulation or to undertake an over zealous exercise in reviewing the language used (Branson v Repatriation Commission [1991] FCA 459; (1991) 23 ALD 600). The question is whether the Tribunal discloses its reasoning process which led it to its conclusion (Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500) and in the words of Underwood J in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the test requires that the reasons: "... must be sufficient to enable the parties to ascertain what facts were found, which of the arguments ... were accepted and which were rejected and what law was applied to arrive at the ultimate determination."

Authors

'Authoring While Dead' (Stanford Public Law Working Paper) by Mark A Lemley and Oliver Wendell Holmes, Jr comments 

Bob Marley died in 1981. But he wrote a song in 2017 with The Killers. At least, that’s what the song credits say. Why? Because The Killers’ song included the two words “redemption songs,” the title of a classic Bob Marley hit. Rather than fight, The Killers agreed to add Marley as a co-author. 

There is an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or “interpolation”) credit to the claimant, no matter how weak the claim (as in Marley’s case), and even if they are dead (as in Marley’s case). Bob Marley and the Killers are not alone. Olivia Rodrigo agreed to add Paramore as a co-author despite the absence of any plausible copyright claim. Sam Smith did the same with Tom Petty. So did Beyonce. They are all identified as co-authors of the songs they (generally falsely) alleged were infringing. 

But they aren’t and can’t be authors under copyright law. Even if the copyright cases have merit – and they generally don’t – that would make the defendant an infringer, but it wouldn’t make the plaintiff a joint author. Instead, the deal for co-authorship credit appears to be a form of trolling. Under most music contracts it gives the complaining party an undeserved share of the royalties. If that was all it did, we might put up with it. After all, the parties agreed to it for whatever reason. But permitting retroactive co-authorship claims does harm to others and to the system as a whole. It creates problems for later understanding of authorship, for termination rights, and is a form of rights accretion that Jim Gibson warns us about. There is reason to worry that it will lead to a statutory interpolation right– a right to be credited for, get money for, and eventually to control songs that don’t infringe in the first place.  

The subsequent version in Georgia Law Review gives lead authorship to the late lamented Holmes. 

Road Crime

The NSW Law Reform Commission report on Serious Road Crime states 

In accordance with the terms of reference, we focus on serious road crime offences in the Crimes Act 1900 (NSW) (Crimes Act), along with the offence of manslaughter and accessorial liability. 

Some issues are beyond the scope of the review. These include: • road crime offences that are not in the Crimes Act, and reforms to other Acts • broader reforms that are not specific to serious road crime offences or serious road crime victims, or that would affect the criminal law more broadly • some matters that relate to wider NSW Government policies, and • some issues relating to the investigation and prosecution of serious road crime offences. 

We also only consider decisions in individual cases or sentencing outcomes to the extent that they are relevant to whether the law should be changed. 

The review was informed in part by the experiences of victims and their families. We recognise the profound trauma and enduring suffering caused by serious road crimes, which is often compounded by the criminal justice process. 

In addition to considering the lived experience of victims, we consider important law reform principles. These include that any reform should be principled and evidence- based, and capable of operating within the broader criminal framework. We also recognise that the criminal law is just one measure, among many, to address road safety, and may not be the most effective deterrent of risky driving behaviour. We consider unintended consequences of reform proposals. 

This includes any potential disproportionate impact on particular groups in the community, including Aboriginal and Torres Strait Islander peoples. Any change that could negatively affect progress towards Closing the Gap targets should not be recommended without clear and compelling justification. 

Vehicular homicide/manslaughter (Chapter 2) 

Chapter 2 considers whether a new, specific offence of vehicular homicide/manslaughter should be introduced into the serious road crime offence hierarchy.  While we acknowledge that a new offence could have an important symbolic role, we conclude that a vehicular homicide/manslaughter offence should not be introduced. We do not think a new offence is necessary, where the existing manslaughter offence, in combination with other serious road crime offences, appropriately covers the wide range of conduct and criminality of driving that causes death. There is a risk that introducing a new offence could result in symbolic criminalisation only, without leading to more manslaughter charges, or the harsher sentencing outcomes that some submissions desired. 

A new vehicular manslaughter offence could also cause confusion. It may be unclear how this offence would interact with the general manslaughter offence, particularly if the new offence had different or overlapping elements. It could cause confusion about where the new offence sat in the hierarchy of driving offences, and whether the existing offence would still have a role to play in the context of serious road crimes. 

We recommend that the NSW Government introduce a new Law Part Code to record instances where the offence of manslaughter involves driving a motor vehicle. A Law Part Code is a unique code used to identify certain types of offending, and in some cases, the circumstances of an offence. It would allow for better data collection to inform policy in the future. 

We do not consider legislative reform an appropriate way to address the common law rule that regulatory breaches, like traffic violations, cannot be an “unlawful act” for the offence of manslaughter by unlawful and dangerous act. We recognise the concerns raised about the restrictive nature of the rule, but consider that appellate courts are best placed to address any issues arising from the rule. Legislative reform could also have a broader impact on the general offence of manslaughter, beyond manslaughter offences that involve a motor vehicle. 

Offences causing death or bodily harm (Chapter 3) 

Chapter 3 considers whether the elements of the serious road crime offences that cause death or bodily harm are appropriate and operating effectively. We do not recommend any reform to the elements of the offences of dangerous driving occasioning death and dangerous driving causing grievous bodily harm (GBH). 

In our view, the elements are clear and appropriate. The offences sufficiently cover  the spectrum of dangerous driving conduct and are broad enough to be applied flexibly, on a case-by-case basis. 

We recommend adding participation in an unlawful street race or speed trial as a circumstance of aggravation for aggravated dangerous driving offences. The aggravated offence, and the higher maximum penalty, would apply where a person causes death or harm to another while participating in an unlawful race or speed trial. This recognises the high level of criminality involved in the conduct, and the significant danger it poses. 

We also recommend that the NSW Government review the aggravating circumstance of speed and consider other models for determining what the speed threshold should be for aggravated dangerous driving offences. The law currently requires a person to have been travelling more than 45km/h above the speed limit at the time of impact, for the aggravated offences to apply. 

We heard that the current single set limit does not reflect the varying degrees of risk of speeding in different areas. We consider several proposals for models to address this concern, including a percentage model, or a hybrid percentage and threshold speed. The NSW Government should consult with experts to determine the appropriate model and limit. 

We conclude there should not be any other reforms to the circumstances of aggravation for aggravated dangerous driving offences. We recommend introducing two new offences: dangerous driving occasioning actual bodily harm (ABH), and an aggravated version of that offence. These offences would improve the logic and coherence of the serious road crime hierarchy, and address concerns that the offence of wanton or furious driving, which is often charged in response to impacts causing ABH, is outdated. 

The new offences would cover some, but not all, of the conduct currently captured by the wanton or furious driving offence. We recommend that the offence be amended and modernised, to make its scope and application clearer. It should continue to cover conduct that is not captured by any new dangerous driving occasioning ABH offence, such as horse riding related offending. We discuss but do not recommend other proposals that were raised, including a new specially aggravated dangerous driving offence, and a new mid-tier offence such as reckless driving. 

Finally, we outline why we determine that negligent off-road driving is outside the scope of the review. 

Other serious road crime offences (Chapter 4) 

Chapter 4 considers the elements of other serious road crime offences, and accessorial liability provisions. If the recommended new offences of dangerous driving occasioning ABH are introduced, we recommend introducing a new offence of failing to stop and assist after a vehicle impact causing ABH. Currently, the Crimes Act offences of failing to stop and assist only apply if a victim died or suffered GBH. The proposed new offence would maintain consistency in the offence hierarchy and align with the new dangerous driving offences. There should not be any amendments to existing offences. 

We do not recommend amendments to the offence of police pursuit or the offence of predatory driving. These offences remain fit for purpose. We also consider general accessorial liability provisions, as they apply to serious road crime offences. Many victims felt a strong sense of injustice that people who may have had a role in a serious road crime were not held criminally responsible for their actions. They argued that there should be new accessory offences that captured this conduct. 

However, we conclude that new accessory offences that apply to passengers and other people who may have had a role in a serious road crime should not be introduced. New accessory offences would be a significant and undesirable extension of criminal responsibility. Existing accessorial liability provisions, as well as other general offences, are already available in appropriate circumstances. We are also concerned that new accessory offences would carry a risk of over-reach, and disproportionately impact particular groups, including Aboriginal and Torres Strait Islander peoples and people in regional and remote areas. 

Penalties (Chapter 5) 

Chapter 5 considers whether the maximum penalties for serious road crime offences are appropriate, as well as other proposals relating to penalties for these offences. We heard concerns that the penalties available for serious road crime offences did not adequately reflect the seriousness of the conduct, or effectively deter offending. Some suggested that these penalties had contributed to inadequate sentencing outcomes for the offences. Some groups proposed reforms to address concerns, including increasing maximum penalties, introducing mandatory minimum sentences, removing the availability of ICOs as a sentencing option, and increasing mandatory and default licence disqualification periods. 

While we acknowledge these views, we do not recommend any changes to the current penalty regime. In our view, the regime is appropriate, and allows sentencing courts scope to impose sentences that adequately reflect the criminality covered by the offences. 

In our view, the current maximum penalties appropriately reflect the gravity of each serious road crime offence and provide courts sufficient scope to sentence offenders for a broad range of conduct. The maximum penalties are broadly consistent with those in other Australian jurisdictions. 

Higher maximum penalties are unlikely to have any additional deterrent effect, but may disproportionately impact particular groups, such as Aboriginal and Torres Strait Islander peoples, young people and those in rural and regional communities. Mandatory minimum sentences should not be introduced for any serious road crime offences. Introducing mandatory minimum sentences may reduce the number of early guilty pleas and lead to further delays in the criminal justice process. They may also inappropriately constrain judicial discretion and lead to inconsistent and skewed sentencing outcomes. Research shows that mandatory minimum sentences may not be effective at deterring crime, and could instead lead to cycles of reoffending through increased exposure to the custodial system. 

Intensive correction orders (ICOs) should also remain available for all serious road crime offences except manslaughter (for which an ICO is already unavailable). Serious road crime offences cover a broad spectrum of criminality, and ICOs are an appropriate sentencing option in some cases. Removing ICOs as a sentencing option could unduly restrict the discretion of sentencing courts and in practice, could lead to both inappropriately harsh or lenient sentences being imposed. If more sentences of imprisonment are imposed, the risk of reoffending may increase. 

We conclude that mandatory driver rehabilitation programs should not be introduced as a condition of sentence. Targeted rehabilitation programs can play an important part in improving driving behaviour and attitudes. The NSW Government should consider increasing the availability of these programs. While we consider that the programs have significant benefits, we do not think they should be made mandatory as condition of sentence. They may not be an appropriate option in every case and should be a matter for judicial discretion. 

We outline the diverse views about the licence disqualification scheme, but do not make any recommendations for reform. Any change to the licence disqualification scheme would need to be considered in a wider review, as it would impact offences beyond serious road crime offences. 

Sentencing principles and procedures (Chapter 6) 

Chapter 6 considers proposed changes to sentencing principles and procedures that apply to serious road crime offences.   Many victims felt a strong sense of injustice at the sentencing outcomes of serious road crime offences. They did not think that the sentences imposed for serious road crimes appropriately reflected the seriousness of the offences, or adequately recognised the devastating harm caused to victims, their families and the wider community. To address these concerns, some submissions proposed reforms to general sentencing principles and procedures. 

While we acknowledge the concerns we heard about the general sentencing framework, broad reforms to this framework are outside the scope of the review. As these changes would affect the sentencing of offences other than serious road crimes, they would need to be considered in a wider review relating to all offence types. 

We also conclude that there should be no change to specific sentencing principles and procedures that apply to serious road crime offences. This includes amending aggravating factors covering the use of a weapon and violence, taking into account prior traffic offences as criminal convictions, implementing regular reviews of judicial decisions, and introducing a statutory scheme of sentencing guidelines for serious road crime offences in NSW. 

There were mixed views about the Whyte guideline judgment that applies to dangerous driving offences. Some considered that it was outdated and out of step with community expectations, while others considered that it remained appropriate, relevant and workable. 

A guideline judgment may only be reviewed, changed, or revoked by the Court of Criminal Appeal, either on its own motion or following an application by the Attorney General. We outline the views we heard in our review, which may inform any future consideration of this issue. 

Finally, we conclude that standard non-parole periods (SNPPs) should not be introduced for dangerous driving offences. SNPPs represent the non-parole period that is in the middle of the range of seriousness for a particular offence, viewed objectively. However, dangerous driving offences cover a wide range of conduct, so it is difficult to identify such a mid-range. 

Moreover, in circumstances where the NSW Sentencing Council recently raised significant concerns about the SNPP scheme as a whole and recommended it be reviewed, we do not consider it appropriate to recommend any expansion. 

Legislative structure and jurisdiction (Chapter 7) 

Chapter 7 considers proposed changes to the legislative structure of serious road crime offences, and the courts in which these offences can be heard. Some submissions argued that a new, standalone road crimes Act would have an important symbolic and educative role. Though we conclude that a new serious road crimes Act should not be introduced, we do recommend that a new serious road crimes division be created in the Crimes Act. This change would improve the clarity and organisation of the offences in the Act, and could improve understanding. Some argued that serious road crime offences were too serious to be heard in the Local Court, and should be removed from Table 1 and Table 2 of the Criminal Procedure Act 1986 (NSW). While we acknowledge the seriousness of these offences, we conclude that there should not be any change to the existing Table offence classifications. 

There are significant benefits in allowing scope for some offences to be heard in the Local Court, including that it can offer a quicker resolution of matters. The Local Court has sufficient sentencing scope to consider offences that fall toward the lower end of the spectrum of criminal culpability. The current Table offence classifications provide flexibility, and the prosecution (and in some cases the accused) can elect for the most serious cases to be heard in the District Court. This change could also reduce the scope for plea negotiations in some cases. 

We heard suggestions that negligent driving occasioning death, which is currently a summary offence, should become indictable or strictly indictable. Some considered this would appropriately reflect the seriousness of the offence, while others suggested it would allow more flexibility and offer practical and operational benefits. However, we conclude that negligent driving occasioning death should remain a summary offence. This appropriately reflects the level of criminal fault in the offence. Although making the offence indictable would allow a longer time for the investigation and charging process, we do not consider these operational benefits alone justify reform. Further, sentencing statistics suggest that the Local Court has adequate scope to properly sentence offenders for this offence. 

Some submissions suggested that dangerous driving offences under s 52A of the Crimes Act were too serious to be heard in the Children’s Court. Though these offences are serious, we conclude that dangerous driving offences should not be made serious children’s indictable offences so that they are excluded from the Children’s Court jurisdiction. 

In all but the most serious cases, the Children’s Court is best placed to deal with young persons, as a specialist court with a tailored framework for dealing with children. Dangerous driving offences cover a broad spectrum of criminality, and it would be undesirable if cases that fell at the lower end of the spectrum of seriousness were deprived of the Children’s Court’s specialist approach. There is already scope for judicial officers in the Children’s Court to transfer the most serious offences to the District Court. 

This change is unlikely to have a deterrent effect on young people and may have other unintended consequences. For example, it may disproportionally impact Aboriginal and Torres Strait Islander children and contribute to the overrepresentation of these young people in detention. 

The experiences and rights of victims (Chapter 8) Chapter 8 considers the concerns raised by serious road crime victims and their families about their rights and experiences in the criminal justice system. While we conclude that no laws should change in response to the terms of reference, we raise a number of important issues for NSW Government consideration. 

There are a number of areas in which victims’ experiences throughout the criminal justice process could be improved. The term “accident” is distressing to road crime victims, and should be avoided in connection with criminal proceedings for these offences. There is a clear need for more trauma-informed victim support services, particularly for victims in rural and remote areas. We heard concerns about the lack of information provided to victims about the criminal process, and the lack of available counselling. Some victims found the compulsory third-party scheme inadequate and inaccessible. 

Some of the issues raised by victims may be considered in the Department of Communities and Justice ongoing review of the Victims Rights and Support Act 2013 (NSW). Recent amendments to this Act also extend counselling under the Victims Support Scheme to family victims of road crime. This is in addition to the trauma support service, which provides immediate counselling and psychological support. The NSW Government should consider whether restorative justice processes should be made more widely available. There was overwhelming support for restorative justice processes in the context of serious road crime offences, due to its potential benefits for both victims and offenders. There was also some support for Victim Impact Panels. These processes could meet some needs that are not met by the traditional criminal justice system. 

While there are clear benefits to restorative justice, it is desirable that the NSW Government consider making these processes available for a wider range of offences, not only for serious road crimes. We outline the views we heard in the review, which may inform this consideration. Issues may include when restorative justice should be available in the criminal justice process, whether participation should be taken into account on sentence, and whether restorative justice should have a legislative basis. 

Finally, we conclude that there should be no change to the victim impact statement scheme, and the remote evidence in chief provisions. In our view, the current scope of these laws is appropriate in the context of serious road crime offences.

The Commission's recommendations are  

2. Vehicular homicide/manslaughter 

Recommendation 2.1: New Law Part Code 

There should be a Law Part Code for manslaughter where the commission of the offence involves the accused person driving a motor vehicle. 

3. Offences causing death or bodily harm 

Recommendation 3.1: The aggravating circumstance of speed should be reviewed 

The NSW Government should review the circumstance of aggravation relating to speed in s 52A(7)(b) of the Crimes Act 1900 (NSW), to consider whether the limit should be lowered, or whether other models for identifying excessive speed should be adopted, such as nominating a percentage above the applicable speed limit. 

Recommendation 3.2: Participation in an unlawful race or unlawful speed trial should be a circumstance of aggravation 

Participation in an unlawful race or unlawful speed trial should be added as a circumstance of aggravation in s 52A(7) of the Crimes Act 1900 (NSW). 

Recommendation 3.3: New offences of dangerous driving occasioning actual bodily harm and amending wanton or furious driving (1) An offence of dangerous driving occasioning actual bodily harm should be inserted into s 52A of the Crimes Act 1900 (NSW). The elements of this offence should be consistent with the offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. It should carry a maximum penalty of 2 years’ imprisonment. (2) An offence of aggravated dangerous driving occasioning actual bodily harm should also be inserted into s 52A of the Crimes Act 1900 (NSW). The circumstances of aggravation in s 52A(7), amended to include unlawful street racing, should apply to this offence. It should carry a maximum penalty of 4 years’ imprisonment. (3) Both offences should be Table 1 offences, in Schedule 1 of the Criminal Procedure Act 1986 (NSW). (4) The offence of dangerous driving occasioning actual bodily harm should be available as an alternative verdict to the aggravated form of the offence. (5) The offence of wanton and furious driving in s 53 of the Crimes Act 1900 (NSW) should be updated, so it only covers conduct that is not addressed by these new offences. The language of the offence also should be modernised. 

4. Other serious road crime offences 

Recommendation 4.1: Extend fail to stop and assist to impacts causing ABH 

If new dangerous driving occasioning actual bodily harm offences are introduced, a new offence of failing to stop and assist after a vehicle impact causing actual bodily harm should be inserted into s 52AB of the Crimes Act 1900 (NSW). 

7. Legislative structure and jurisdiction 

Recommendation 7.1: A new serious road crimes division 

There should be a new division in the Crimes Act 1900 (NSW) that incorporates the existing serious road crime offences contained in that Act.

Bail

The ACT Government has released a discussion paper regarding the review of decision-making criteria in the Bail Act 1992 (ACT). 

The paper states 

 The ACT Government recognises the impact of bail decisions on defendants, victims, witnesses, and the broader community’s perceptions about the justice system. The ACT Government acknowledges the work undertaken in the 10th Legislative Assembly committee by the Standing Committee of Justice and Community Safety and its report Inquiry into the Administration of Bail in the ACT. The submissions to and discussion and recommendations within that report have informed the Government’s position and this discussion paper. The ACT Government believes that bail law modernisation and reform is highly desirable and intends to introduce legislation amending the Bail Act 1992 as soon as practicable. ... 

Objectives of the reform 

Reforms to the Bail Act 1992 are being approached with the following direct objectives sought: • Provide greater clarity to decision-makers about what considerations are to be taken into account when deciding a bail application; • Maintain the independence and discretion of decision-makers when deciding a bail application; • Maintain procedural fairness and consistency with the ACT Human Rights Act (2004); and • Elevate the concept of do no further harm to both the alleged victim(s) and the accused person when deciding a bail application. 

Notwithstanding the intersectionality and relevance of resources, investments, and supports that are otherwise outside this reform’s scope, particular regard is given to these further objectives: • Enhance confidence and trust in the justice system; • Reduce the high rates of remand and recidivism; and • Address the significantly high rates of incarceration of Aboriginal and Torres Strait Islander people. 

Background 

Bail decisions are a high volume, significant component of our criminal justice system and it is vital that the law is clear and accessible. Until 1992, bail laws in the ACT were set out in various pieces of legislation. This made it difficult to identify the rules that applied to their specific circumstances. The Bail Act 1992 was enacted to consolidate, modernise and simplify the law relating to bail for young people and adults. 

While there have been several amendments to the Act since, the most recent significant changes occurred in 2004. 

An accused person has a right to the presumption of innocence and a right to liberty. These rights mean that a person cannot be detained as punishment for a crime they are accused of committing prior to trial and that pre-trial detention is intended as an exceptional, not standard, measure. 

Bail is an undertaking that the accused will appear before court on a later date, and can be subject to conditions. Where an application for bail is not granted, an accused is remanded in custody. There are individual, financial and justice sector direct and indirect costs when the accused person is remanded in custody. Accused persons and their families suffer the hardships of incarceration without being convicted of an offence. Pre-trial detention and remand can contribute to likelihood of future offending. Because incarceration is criminogenic in nature, , an accused remanded in custody is then at increased risk of reoffending, which ultimately does not make the community safer. 

The real net operating cost of a detained adult in prison in the ACT in 2023-24 was $618 per person per day. With up to half of the prison population on remand, around $40 million is spent annually detaining adults on remand. 

These costs need to balanced with and considered in the context of the rights of victims; the need to mitigate the risk of further harm; the importance of community safety; the availability of support services and enforcement resources; and the most effective use of Government resources and funding to achieve its justice objectives. 

Basics of the Bail Act 1992 

Applying for bail 

In the ACT, a person arrested and charged with a criminal offence is entitled to apply for bail. Persons who can grant bail are authorised officers (the Chief Police Officer and delegated police officers) and courts (Magistrates Court or Supreme Court). 

The Bail Act sets a number of obligations on the arresting or the charging police officer about the granting of bail and ensuring the accused is aware of their rights. Where the authorised officer cannot or does not grant bail, the accused must be brought before a court as soon as possible, and the court is required to consider the application as soon as possible. 

Framework for decision-makers 

The Bail Act provides a legislative framework for how bail applications are to be approached by decision-makers. 

The decision-maker must consider any presumptions that apply and, where applicable, the criteria for granting bail to adults (section 22 of the Bail Act) or children (section 23 of the Bail Act). The information before a court is provided by the prosecution (which will include information provided by the police), defence and any additional information from other relevant sources such as ACT Corrective Services or a health professional. 

The bail decision requires the balancing of all the information and factors before the decision maker. 

Presumption for bail to be granted 

• For certain minor offences, an accused is entitled to be granted bail in most circumstances; • For offences other than minor offences, an accused is entitled to be granted bail unless the court or authorised officer is satisfied that refusal is justified after considering specific criteria, including applicable presumptions (also set out in the Act). 

Neutral presumption about whether bail should be granted 

For some specific offences, the Bail Act provides there is not an entitlement for an accused to be granted bail—and nor is there an entitlement for them not to be granted bail. 

Presumption against granting bail 

For some specific offences, the Bail Act provides that bail must not be granted unless the authorised officer or the court is satisfied that special or exceptional circumstances exist that favour bail being granted. However, even if those special or exceptional circumstances are established, the court or authorised officer must refuse bail if they are satisfied that refusal is justified after considering specific criteria (also set out in the Act). 

Dispensing with bail 

A court may also decide to release an accused person from custody without requiring bail. The accused person is entitled to be and to remain at liberty in relation to the offence until the person is required to appear before a court in relation to the offence. 

Criteria for decision-makers to consider 

The criteria for granting bail under section 22 or 23 of the Bail Act require the decision-maker to consider the likelihood of certain things occurring such as the person appearing in court or committing an offence. When making that decision, the decision-maker may also consider any relevant matter, including the nature and seriousness of the offence, the person’s character, background and community ties, and any previous grants of bail. 

In more detail: In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider— (a) the likelihood of the person appearing in court in relation to the offence; and (b) the likelihood of the person, while released on bail— (i) committing an offence; or (ii) harassing or endangering the safety or welfare of anyone; or (iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and (c) the interests of the person (such as the need for the person to have physical protection, or the period with which a person may be held in custody if bail is refused and the conditions under which they would be held) 

The Bail Act provides that the court or authorised officer may also have regard to any relevant matter, and includes: (a) the nature and seriousness of the offence; or (b) the person’s character, background and community ties; In this context, a prosecutor must tell the court about any concern a victim may have expressed about the need for protection from violence or harassment by the accused. (c) the likely effect of a refusal of bail on the person’s family or dependants; or (d) any previous grants of bail to the person; or (e) the strength of the evidence against the person. 

Within the Bail Act, a victim is defined as: (a) a person (the primary victim) who suffers harm— (i) in the course of, or because of, the commission of an offence of which the accused person is accused; or (ii) in the course of assisting a police officer in the exercise of the officer’s power to arrest the accused person or to take action to prevent the commission of an offence of which the accused person is accused; or (b) if a primary victim dies because of the commission of an offence of which the accused person is accused—anyone who was financially or psychologically dependent on the primary victim immediately before his or her death. 

Bail conditions 

Bail can be granted without conditions or with conditions. 

When bail is granted with conditions, those conditions can include one or more of: • conditions about the accused person’s conduct while released on bail, such as a requirement that: o the accused person report periodically, or at specified times, at a stated place; and o the accused person reside at a stated place; and o the accused person undergo psychiatric treatment or other medical treatment; and o the accused person participate in a program of personal development, training or rehabilitation; and o the accused person accept supervision or comply with any reasonable direction (such as undertaking a mental health assessment or other program). Note: further specific conditions are applicable where a person has been charged with a family violence offence. • a condition that the accused or another person gives a security of payment, or otherwise pays a stated amount, if the accused person fails to appear in court in accordance with his or her undertaking. 

Release on bail 

An accused person may be released on bail only if the person gives an undertaking to appear before a stated court at the place, date and time that’s provided to them by a police officer or written or recorded in an undertaking before a court and to comply with the bail conditions (if any). 

An accused person commits an offence if they give an undertaking to appear before a court and fail to carry out the undertaking. 

Issues with Bail Act operation 

The ACT Government respects and will maintain the independence and discretion of decision makers. The following discussion relates to options for how the framework for decision-making could be improved. 

While the decision-maker may take into account any relevant consideration, and a court can be proactive in the information it seeks, pressures such as time or urgency may limit relevant considerations being sought and/or being given appropriate regard. 

The following discussion outlines the evidence and observations reflected in submissions to the ACT Government and ACT Legislative Assembly Committee inquiries, as well as data, research and sentiment. Issues on which the ACT Government is seeking views and possible reforms are outlined, with questions to prompt responses. 

How bail criteria are framed in the Act 

When first in force, the Bail Act set out the criteria for granting bail to adults with matters in the categories of: • probability of the person appearing in court in respect of the offence; • interests of the person charged; and • the protection of the community. 

While elements of these are still reflected in the current criteria, these ‘arms’ of thematic considerations are not set out as clearly. In that vein, the Government is of the view that there may be value in clearly setting out the key categories or lenses through which a decision-maker should be considering relevant criteria. For example, by recognising the rights of the victim and the accused, and the principle of doing no further harm to either, and through a broader lens regarding community safety and justice integrity. These categories can be summarised as: • interests of the victim; • interests of the accused; and • interests of community safety and justice integrity. 

There is no hierarchy of these interests; no consideration is to supersede another. Rather, they could serve as a stronger framework setting for the relevant considerations for a decision-maker in deciding whether to grant bail.

The paper features the following questions 

Q1. What are the risks or benefits in providing for a clearer framework of considerations for the decision-maker as outlined above? 

Q2: Should a victim’s concerns that need to be taken into consideration be broader than what is currently legislated? If so, what would be an appropriate expansion? 

Q3: Is there value in a criterion which reflects victims’ views and knowledge more broadly? If so, should this be in addition to or instead of a “risk of harm” criterion? 

Q4: Should decision-makers be specifically required to have regard to the presence of established risk factors when deciding a bail application in the context of a domestic and family violence offence? 

Q5: If so, if an FVRAT has been completed by ACT Policing, should it be provided as a relevant consideration that the decision-maker needs to have regard to? Or, is there another tool which could be used instead of, or in addition to, an FVRAT?

Q6: Where a victim dies because of the commission of an offence of which the accused person is accused, should the definition of victim be expanded to include immediate family members, rather than only persons who were financially or psychologically dependent?

Q7: Is this provision in the Victorian legislation appropriate for the ACT context? Can it be improved? 

Q8: Should an accused being a primary carer or pregnant be a relevant consideration for a decision-maker in deciding to grant bail? If so, what form should the provision take?

Q9: Should an accused person’s disability needs, health needs and relevant related circumstances be required to be considered by a decision-maker in deciding whether to grant bail? If so, what form should the provision take? 

Q10: Should the legislation contain a specific provision requiring a court to consider a written submission from police in its decision-making? 

Q11: With the nature and seriousness of an offence already provided for as a relevant consideration, should this be expanded to include the prevalence of the offence? 

Q12: Are the types of risks that a decision-maker is required to assess the likelihood of sufficient for the purposes of granting bail? 

Q13: Should a person’s actions (including breaches of conditions; further offences etc) while on any previous grant of bail (or subject to other conditions imposed by a court) which has now been disposed of be a relevant consideration for a decision-maker? 

Q14: Is it useful to continue with having some criteria being required to be considered and others which may be taken into account? If so, should there be any changes? Or, should all criteria be relevant considerations that need to be given appropriate regard? How could decision-makers and persons appearing before a court be supported so that all evidence relating to the criteria is available? 

Q15: What further information or specificity could be provided in the bail conditions which would ensure their enforceability? 

Q16: Are there reporting sites for bail other than police stations that might suit other persons with particular vulnerabilities or needs that should be an option as part of a bail application process? 

Q17: Should the ACT Government consider extending electronic monitoring to be a potential bail condition? If so, should it be limited to particular offence types? 

Q18: Of the bail criteria and conditions discussed in this paper, should any be specifically applied or be a consideration in matters that involve children and young people who are accused of a crime? Should any specifically not be a consideration in matters that involve children and young people accused of a crime? 

Q19: In considering the effectiveness of and complexity of presumptions, should there be reform in this area with regard to children and young people?

Surveillance

'COVID-19 Sewage Testing as a Police Surveillance Infrastructure' by lizabeth E Joh in (2021) Notre Dame Journal of Emerging Technologies comments

Sewage has become a COVID-19 tool. American colleges and universities have struggled to cope with the COVID-19 epidemic as students returned to campus in 2020. Most colleges are unable to provide widespread testing and contact tracing. Testing all students, faculty, and staff on a campus is prohibitively expensive. As a result, many colleges and universities have turned to a different approach. Those infected with COVID-19 shed viral particles in their waste. Evidence of these viral particles can be tested by sampling wastewater. Testing sewage offers a reliable method for identifying outbreaks cheaper and easier to administer than a mass testing and contact tracing program. And as COVID-19 is likely to affect the population well into 2021, state and local governments have considered or started sewage testing. But emergency measures have a tendency to stick around after the crises that prompted them diminish. COVID-19’s public health crisis will end. But the incentives to monitor wastewater will continue. This Essay argues that sewage testing will outlive the pandemic and become a part of a general policing surveillance infrastructure. We risk adopting this surveillance without care taken to the legal and policy questions raised by its use.  

Independence

In Australia and New Zealand Banking Group Limited v Oldroyd & Anor [2025] NTSC 20 the defendants unsuccessfully argued Court lacked jurisdiction because they had diplomatic immunity as heads of a diplomatic mission for a sovereign nation of Aboriginal people and that they were only bound by tribal laws or religious laws. The Court disagreed.

The judgment states

[1] The plaintiff (‘ANZ’) holds a registered mortgage over the defendants’ property (‘Property’), securing a loan advanced to them in 2009. The defendants are in arrears on the loan and ANZ seeks to enforce the mortgage by an order for possession of the Property. 

[2] The first defendant (‘Oldroyd’) and the second defendant (‘Mrs Oldroyd’) are a married couple (together ‘Oldroyds’). They are the registered proprietors of the Property. Mrs Oldroyd did not enter an appearance to these proceedings and took no part in them. 

[3] Oldroyd raised numerous arguments challenging the existence or enforceability of the loan documents and the mortgage, alleging fraud and breaches of the National Consumer Credit Protection Act 2009 (Cth) (‘NCCPA’) on the part of ANZ, alleging various breaches of the defendants’ rights in ANZ’s dealings with the Oldroyds, and denying the service of the proceedings upon the Oldroyds and ANZ’s position that the Oldroyds are in arrears under the loan agreement. 

[4] At the hearing, I permitted Oldroyd to file in Court documents headed ‘originating motion’ and ‘notice of contention’ challenging the jurisdiction of this Court to hear and determine the proceedings. The challenge was put essentially on the bases that Oldroyd holds diplomatic immunity as an appointed ambassador of a nation comprised of tribal people, the Property is the premises of a diplomatic mission, the Oldroyds are bound only by tribal law and are not bound by the common and statute law of Australia, and the ANZ had broken ‘the Oaths of life the Customary tribal Lore/law of this land and the laws of Elohim God’ by committing fraud and making false allegations. I dismissed that jurisdictional challenge at the hearing and delivered ex tempore reasons for doing so. Those reasons are repeated below (with some minor non-substantive changes and the addition of footnotes). 

[5] Ultimately, for the further reasons set out below, I have concluded that the ANZ is entitled to an order for possession of the Property. Reasons for rejecting the challenge to the Court’s jurisdiction 

[6] On 18 March 2025 at 5.19pm, Oldroyd attempted to file an ‘originating motion’ and a ‘notice of contention’ containing a challenge to the jurisdiction of this Court to hear and determine these proceedings. 

[7] Those documents were not accepted for filing by the Registrar because they were not in the appropriate form and were emailed to the Court after business hours the day before the hearing. Despite those procedural problems, I permitted Oldroyd to put his jurisdictional argument before me. [ 

8] Essentially, as I understood it, Oldroyd argued that he is an Aboriginal person and therefore of an independent nation state and bound only by tribal laws and/or the laws of God. In addition, he argued that he has diplomatic status because he has been appointed by various signatories to various documents as an ambassador for an independent Aboriginal state or states, and has been ‘internationally recognised’ as such. In this regard, he relied on various correspondence and other documents from officers of embassies of certain countries, referring to meetings or correspondence and referring to Oldroyd under the title ‘Ambassador Oldroyd’. For both reasons, Oldroyd argued that he is not subject to the laws of the Northern Territory or the jurisdiction of this Court. 

[9] Oldroyd wished to call evidence from various witnesses to establish the factual assertions he made in support of his arguments. I did not receive that evidence because, even if the factual assertions were established by the proposed evidence, I rejected the arguments based upon them. 

[10] The short answers to the arguments are, firstly, that all Aboriginal people are subject to the laws of the Commonwealth and the laws of the States and Territories in which they live. There is a wealth of authority confirming that proposition from both this Courtand the High Court, as well as superior courts in other States. None of the cases referred to by Oldroyd have decided any differently. 

[11] The Supreme Court of the Northern Territory was established by statute and has the powers and jurisdiction conferred now by the Supreme Court Act 1979 (NT), which was passed by the Legislative Assembly of the Northern Territory pursuant to the power conferred on it by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth). The Court’s jurisdiction in respect of Aboriginal people who are residents of the Northern Territory is no different to the Court’s jurisdiction in respect of non-Aboriginal people who are residents of the Northern Territory. 

[12] Secondly, I do not accept that Oldroyd or Mrs Oldroyd or the associations or groups who he or they purport to represent or stand with are states within the meaning of the Vienna Convention on Diplomatic Relations, which has the force of law in Australia under and subject to the Diplomatic Privileges and Immunities Act 1967 (Cth). 

[13] Oldroyd does not have the recognition of the Australian Government as required by Article 4 of that Convention. Consequently, he and Mrs Oldroyd are not diplomatic agents within the meaning of that Convention and do not have any diplomatic status which would render them or the Property immune from the operation and effect of the laws of the Northern Territory, whether under statute or the common law. Consequently, I do not accept that the Property is the premises of a mission within the meaning of that Convention.[ 

[14] It follows from that conclusion that the immunity under Article 31 of the Convention of a diplomatic agent from the civil and administrative jurisdiction of the receiving state, here Australia, does not apply. By Article 31.1(a), that immunity does not apply in a real action relating to private immovable property situated in the receiving state, unless it is held on behalf of a sending state for the purposes of the diplomatic mission. As I have said, I do not accept that the Property is the premises of a mission.

[15] Oldroyd also asserted that the Property is a sacred site or a heritage site. He also asserted that all mortgage is a fraud. Even if any of those matters are so, they or any of them do not deny to the Supreme Court the power and jurisdiction to hear these proceedings and, if necessary, make determinations about those things. 

[16] I therefore rejected the submissions made by Oldroyd and concluded that this Court does have jurisdiction to decide these proceedings. 

[17] I add to the above reasons that, for similar reasons to those set out in paragraphs 10 to 11 above, all individuals, regardless of their faith or religious beliefs, are subject to the laws which operate in the place where they live  and the jurisdiction of the Supreme Court of the Northern Territory applies equally to all residents of the Northern Territory, regardless of their faith or religious beliefs. 

[18] Oldroyd’s request by email sent on 26 March 2025 for these proceedings to be ‘referred’ to the High Court as a matter within its original jurisdiction pursuant to s 75 of the Constitution is refused. It is trite that this Court has, at first instance, jurisdiction to determine the extent of its own jurisdiction and whether or not a particular proceeding falls within it. On 26 March 2025 and on a number of subsequent dates, Oldroyd sought to file by email a ‘motion’ for ‘strike out of the application and summary judgment’, which also purports to claim ‘the full amount of the Defendants Statement of Claim including cost on a full indemnity basis’ (referring the ‘registered commercial lien’ addressed below). The application to file that document is refused. The ‘motion’ was not in the proper form, the relief sought is misplaced and is grounded on matters put by Oldroyd in the hearing.