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Key developments

  • Model Defamation Amendment Provisions 2020 (Consultation Draft)
  • Inquiry into Professional Engineers Registration Bill 2019
  • Council of Attorneys-General Age of Criminal Responsibility Working Group Review
  • National Action Plan to Combat Modern Slavery 2020-2024
  • Religious Freedom Bills – Second Exposure Drafts
  • Inquiry into a framework for autonomous sanctions under Australian law to target human rights abuses

Model Defamation Amendment Provisions 2020 (Consultation Draft)

The Law Society’s Litigation Law and Practice Committee contributed to a submission to the Review of the Model Defamation Provisions, which is being led by the Council of Attorneys-General Defamation Working Party (‘DWP’). This follows a March 2019 response by the Law Society to a Discussion Paper released by the DWP.

The Law Society expressed support for the following specific proposals contained in the Model Defamation Amendment Provisions 2020 (Consultation Draft):

  • The proposed introduction of a ‘single publication rule’ to replace the current ‘multiple publication rule’ to provide that the applicable one-year limitation period runs from the date material is uploaded to the internet;
  • The proposed introduction of a serious harm threshold to require plaintiffs to establish that a publication caused, or is likely to cause, serious harm to their reputation;
  • The proposed introduction of a new defence for peer-reviewed statements and assessments in scientific and academic journals.

The Law Society supported the proposed introduction of a serious harm threshold. We took the view that a serious harm threshold should be considered by the court at an early stage of proceedings, to minimise the cost to the court and other parties of unmeritorious or spurious claims that do not satisfy the threshold.

Inquiry into Professional Engineers Registration Bill 2019

The Property Law and Environmental Planning and Development Committees contributed to a submission to the Inquiry being conducted by the Legislative Assembly Committee on Environment and Planning into the Bill.

We supported the establishment of a scheme for the registration and regulation of professional engineers. Our comments focused on the way in which the new Board of Professional Engineers will operate, with a focus on procedural fairness being afforded to an engineer involved in a complaint. We also submitted that the decisions made by the Board must be appellable and the appeal mechanism must be established as part of the initial framework, rather than dealt with by later regulations.

We suggested that any registration system, in order to be effective, must be complemented by a mandatory professional insurance regime. Provision of evidence of the currency of such insurance for the period of registration should be a condition of eligibility for registration.

Council of Attorneys-General Age of Criminal Responsibility Working Group Review

The Law Society’s Children’s Legal Issues, Indigenous Issues, Human Rights, and Criminal Law Committees contributed to a submission to the Law Council in relation to the Council of Attorneys-General Age of Criminal Responsibility Working Group Review.

The submission notes that the Council of the Law Society considered this issue in 2019 and resolved by majority that NSW should raise the age of criminal responsibility from 10 to 14 years and remove doli incapax. The submission outlines a number of factors the Council considered in reaching this decision, including the limitations of doli incapax, the disproportionate impact of the present age of criminal responsibility on Indigenous children, developmental and cognitive considerations, recommendations from relevant stakeholder groups, and alternatives to a criminal law response for children aged 10-13.

The submission also contains the Law Society’s response to a number of additional matters raised by the CAG review, including: best practice for protecting the community from anti-social or criminal behaviours committed by children who fall under the minimum age threshold; whether the age of criminal responsibility should be raised for all types of offences; and the critical and protective role that education plays in supporting children who are at risk of offending.

National Action Plan to Combat Modern Slavery 2020-2024

The Law Society’s Human Rights Committee contributed to a submission to the Law Council in relation to the Australian Government’s proposed National Action Plan to Combat Modern Slavery 2020-2024.

The Law Society supports the overarching aim of the proposed goals, namely to ‘address the full cycle of exploitation, from recruitment to reintegration, and… to give equal weight to the critical areas of prevention, enforcement and victim support.’

Our submission included some recommended focus areas to ensure the new National Action Plan meets these goals, including: ensuring victims of modern slavery are aware of various support and protection measures available to them; making provision for additional education for business and corporations; and taking into account relevant international instruments that Australia has either endorsed or voted to adopt since the previous National Action Plan to Combat Human Trafficking and Slavery 2015-19 was prepared.

Religious Freedom Bills – Second Exposure Drafts

The Law Society’s Human Rights Committee contributed to a submission to the Law Council regarding the second exposure drafts of the religious discrimination reforms. This follows a consultation on the first exposure drafts of the religious freedom reforms, to which the Law Society contributed via the Law Council.

Following a consultation process, the religious freedom reforms are expected to be introduced into Parliament in early 2020. The current Australian Law Reform Commission inquiry into religious exemptions in other federal discrimination laws is continuing, with the report expected by 12 December 2020.

The Law Society’s submission noted specific improvements in the second exposure drafts – including the definitions of ‘person’ and ‘vilify’. It also outlined some new and ongoing concerns, including in relation to religious hospitals, aged care and accommodation providers, and the impact on other anti-discrimination legislation.

Inquiry into a framework for autonomous sanctions under Australian law to target human rights abuses

The Law Society’s 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 use of targeted sanctions to address human rights abuses (‘the Inquiry’).

The submission addressed each of the five Terms of Reference for the Inquiry. The Law Society outlined the current autonomous sanctions regime in Australia, and identified inadequacies with this regime. The submission recommended that if Australia does develop a Magnitsky-style law, it should address the inadequacies in the current regime by providing for due process, transparency, and merits review of any sanctions decisions made.

The submission also noted that the Law Society previously contributed to discussion of this issue in Australia by hosting a Thought Leadership panel titled ‘A Magnitsky Act for Australia – Human Rights Bombshell or Frankenstein’s Monster?’ on 5 August 2019.