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Key developments

  • Australian Security Intelligence Organisation Amendment Bill 2020
  • Review of the Law Council’s Policy Statement on a Commonwealth Criminal Cases Review Commission
  • Mental Health and Cognitive Impairment Forensic Provisions Bill 2020
  • Inquiry into human rights of women and girls in the Pacific
  • Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020
  • Virtual hearing into the Anti-Discrimination Amendment (Complaints Handling) Bill 2020
  • Improving the infrastructure contribution system

Australian Security Intelligence Organisation Amendment Bill 2020 

The Public Law, Ethics, Children’s Legal Issues and Human Rights Committees contributed to a submission to the Law Council regarding the Parliamentary Joint Committee on Intelligence and Security review of the Australian Security Intelligence Organisation Amendment Bill 2020 (‘the Bill’).

The Law Society raised concerns over several aspects of the Bill and objected to provisions in the Bill that would limit a person’s right to independent legal representation, and may impinge on a lawyer’s professional obligation to act in the best interests of his or her client. Other key concerns that the Law Society highlighted with the Bill include:

  • a lack of independent oversight of the powers contained in the Bill, and no express provision for judicial or merits review of the compulsory questioning powers;  
  • the expansion of the scope of the questioning powers from ‘terrorism’ matters to ‘politically motivated violence’, ‘espionage’ and ‘acts of foreign interference’. These new terms are either defined broadly or not at all; 
  • unreasonable abrogation of the privilege against self-incrimination; and
  • the extension of the questioning powers to cover children aged 14 and over, and the impact this may have on Australia’s compliance with the Convention on the Rights of the Child.

Review of the Law Council’s Policy Statement on a Commonwealth Criminal Cases Review Commission

The Law Council of Australia sought the Law Society’s feedback on whether a review of its ‘Policy Statement on a Commonwealth Criminal Cases Review Commission’ is necessary, and the extent to which it should advocate the reforms proposed by the Hon. Michael Kirby AC CMG in his recent editorial entitled ‘A New Right of Appeal as a Response to Wrongful Convictions: Is It Enough?’ Criminal Law Journal (Volume 43 Part 5).

The Law Society noted that a review of the Law Council’s Policy Statement may be timely, and the reforms proposed by Mr Kirby are worthy of consideration. We also noted that the findings and recommendations of the NSW Law Reform Commission, in its 2014 report on Criminal Appeals, may also be considered in this regard.

Mental Health and Cognitive Impairment Forensic Provisions Bill 2020

The Criminal Law Committee contributed to a submission to the Attorney General, suggesting two minor amendments to the Bill, which would provide greater guidance to the courts on the factors they should consider when deciding whether to make a diversion order and provide a clearer regime for diversion.

The Law Society participated in the Government’s review of the Mental Health (Forensic Provisions) Act 1990, and commended the Department of Communities and Justice for undertaking a thorough consultation process that resulted in the current Bill.  

Separate to the terms of the Bill, the Law Society again raised the issue of the availability of diversionary programs. People with cognitive and mental health impairments are over-represented throughout the criminal justice system. The Law Society strongly supports increased diversion at all stages of the criminal justice system for people with cognitive and mental health impairments. 

Inquiry into human rights of women and girls in the Pacific

The Human Rights Committee contributed to a submission to the Law Council regarding the Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into the human rights of women and girls in the Pacific (‘the Inquiry’). The context for the Inquiry is the ‘Pacific Step-up’, one of Australia’s highest foreign policy priorities. The Law Society’s submission provided background information and policy suggestions on: the response to domestic, family and sexual violence in the Pacific; women’s economic participation and employment; and the impact of modern slavery on women and girls in the region. 

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

The Human Rights Committee contributed to a Law Society submission to the Law Council regarding the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (‘the Bill’).

The Bill is similar in form to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, which lapsed at the end of Parliament in 2019. Given the significant overlap between the Bill and its predecessor, the Law Society’s submission reiterated several of the points made in our submission on the 2017 Bill and enclosed that submission.

In our submission, the Law Society noted concern over broad discretionary powers granted to the Minister and authorised officers by the Bill, which were in our view disproportionate, unreasonable, and not sufficiently connected with the objective of protecting the health, safety and security of people in immigration detention and maintaining order in the facilities. The Law Society also articulated concerns in relation to the potential impact on legal professional privilege, and the potential impact on detainees’ right to privacy and right to family life.

Virtual hearing into the Anti-Discrimination Amendment (Complaints Handling) Bill 2020

The Co-Chair of the Employment Law Committee, Mr Nathan Keats, and the Chair of the Human Rights Committee, Mr Ali Mojtahedi, represented the Law Society at a virtual hearing into the Anti-Discrimination Amendment (Complaints Handling) Bill 2020 (NSW) (‘the Bill’) conducted by the NSW Parliament Portfolio Committee No. 5 – Legal Affairs on 11 June 2020. 

The Law Society’s evidence before the virtual hearing reiterated concerns with the Bill, including proposed provisions that would:

  • limit the discretionary powers of the President of the Anti-Discrimination Board to decline a complaint under ss 89B and 92 of the Anti-Discrimination Act 1977 (NSW), by substituting the word ‘may’ for ‘must’;
  • expand the list of grounds on which the President would be required to decline a complaint under s 89B of the Anti-Discrimination Act 1977, effectively ‘raising the bar’ for complaints to be accepted; and
  • repeal s 93A of the Anti-Discrimination Act 1977, which requires the President to refer a complaint that has been declined to NCAT, if requested by the complainant.

The Portfolio Committee No. 5 – Legal Affairs is due to deliver its final report on the Bill by 18 September 2020. 

Improving the infrastructure contribution system

The Environmental Planning and Development Committee contributed to a submission to the Department of Planning, Industry and Environment commenting on a package of reforms designed to improve the existing infrastructure contributions system. The submission focused mainly on the Draft Practice Note for Planning Agreements, commenting on guidance principles, value capture, procedures, costs and the examples of using planning agreements contained in it. The submission also commented on: proposed amendments to the Environmental Planning and Assessment Regulation 2000 designed to increase the transparency and accountability in council reporting in this area; the Special Infrastructure Contributions Guidelines; and Criteria to request a higher levy under a development contribution plan.