The latest developments in law reform & advocacy: March 2025

Draft Claim Farming Practices Prohibition Bill 2025 (NSW)

The Injury Compensation, Criminal Law, Indigenous Issues and Ethics Committees contributed to a Law Society submission to the Department of Communities and Justice on the exposure draft of the Claim Farming Practices Prohibition Bill 2025 (‘Draft Bill’).

In this submission, we emphasised the Law Society’s support for legislation which addresses the issue of ‘claim farming’. Claim farming is a practice whereby a claim farmer refers potential claimants to a lawyer or law practice for financial reward. There are serious ethical issues in cases where victim-survivors of child sexual abuse are targeted.

However, we noted our concerns with proposed section 5 of the Draft Bill, which may criminalise legitimate referral practices made to and by solicitors in certain personal injury contexts. We set out a range of examples to illustrate this problem, including examples of referrals between solicitors and referrals to other third parties such as medical practitioners or support services.

In the submission, we also proposed another option to deal with issues specific to institutional abuse. We suggested it may be appropriate to legislate that, for the duration of the National Redress Scheme, a lawyer advising a potential claimant on civil actions in relation to institutional child sexual abuse must inform the potential claimant of all the options available to them, including free legal advice.

Measuring Outcomes for First Nations Communities

The Indigenous Issues Committee contributed to a Law Society submission to the Law Council of Australia to inform its response to the Select Committee on Measuring Outcomes for First Nations Communities (‘Select Committee’).

In the submission, we noted it would be important for the Select Committee to foreground the National Agreement on Closing the Gap in its analysis. We suggested it should also be informed by the 2024 Productivity Commission report, Review of the National Agreement on Closing the Gap, which considered the design and implementation of arrangements to monitor performance and publicly report on progress against the Priority Reforms. Further, it should take into account the importance of needs-based and sustainable funding of Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services.

The submission provided examples of Indigenous-specific lists in NSW courts and tribunals, which are improving outcomes for Aboriginal and Torres Strait Islander people through holistic, wrap-around responses to both legal and non-legal needs.

National Plan to End the Abuse and Mistreatment of Older People 2024-2034

The Elder Law, Capacity and Succession Committee contributed a Law Society submission to the Law Council of Australia in response to the consultation by the Attorney-General’s Department on the draft National Plan to End the Abuse and Mistreatment of Older People 2024-2034 (‘Draft National Plan’). Some key areas of focus in the Draft National Plan include ageism, promoting the rights of older people, and ending abuse and mistreatment.

The Draft National Plan is informed by the independent evaluation of the first National Plan to Respond to the Abuse of Older Australians 2019–2023 and has a 10-year term.

In this submission, we:

• suggested an information form containing notes on duties, liabilities and warnings against financial abuse should accompany the power of attorney template form for each state and territory;
• supported the Draft National Plan’s focus on the importance of putting in place future planning documents;
• suggested an increase in access to legal support, compensation and counselling for victims of elder abuse;
• recognised the important role of banking and financial service providers in preventing and responding to elder abuse;
• noted the move from face-to-face to digital services makes many older Australians more vulnerable to abuse as they may rely on other people to use technology, and suggested service providers consider reopening face-to-face services for elderly customers where possible;
• suggested it would be helpful for banking and financial service providers to create products tailored for the needs of older people, including third-party access products such as the ‘companion card’ used in the United Kingdom, which allows older people to top up the card and give it to a carer to make purchases on their behalf without giving them access to their bank accounts; and
• noted the Law Society’s new Elder Law Specialist Accreditation program, created to assist with the growing need of older people who need expert legal advice.

Application of the contractor and employment agent provisions in the Payroll Tax Act 2007 (NSW)

The Business Law Committee and Law Society members of the Revenue NSW/Law Society Liaison Committee contributed to a Law Society submission to the Legislative Council Portfolio Committee No. 1 – Premier and Finance, responding to its inquiry on the application of the contractor and employment agent provisions in the Payroll Tax Act 2007 (NSW) (‘Act’).

Our submission focused on the ‘contractor provisions’ in Part 3, Division 7 of the Act. We suggested the contractor provisions give rise to significant inequities in their operation, particularly for small business operators who work under the sole contractor model.

We acknowledged the contractor provisions are anti-avoidance provisions, and to avoid inequity, various exemptions have been provided. However, in our view the exemptions are narrow, unclear and often arbitrary in their application. Our submission referred to the example of financial planners to illustrate the technical difficulties in applying the contractor provisions.

Inquiry into the impact of Renewable Energy Zones on rural and regional communities and industries in NSW

The Rural Issues, Property Law and Environmental Planning and Development Committees contributed to a Law Society submission to the Legislative Council Portfolio Committee No. 4 – Regional NSW, in response to its inquiry into the impact of Renewable Energy Zones on rural and regional communities and industries in NSW.

The submission addressed a number of the inquiry terms of reference in relation to increased legal and financial risks for landholders hosting or neighbouring renewable energy infrastructure.

Our submission suggested:

• including a model clause in the Private Agreement Guideline, under the NSW Government’s Renewable Energy Planning Framework, to cover indemnity and insurance;
• providing a mechanism for landholders to receive assistance in obtaining appropriate expert legal, financial and other professional support prior to entering agreements; and
• examining solutions, including statutory models, to ensure appropriate decommissioning funding, and the protection of landholders and the community from exposure to decommissioning liability.

We also referred to our previous advocacy calling for a comprehensive review of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) to, among other things, remove uncertainty regarding the minimum negotiation period timeframes and to streamline prescribed documentation.

Good character at sentencing

The Criminal Law and Children’s Legal Issues Committees contributed to a Law Society submission to the NSW Sentencing Council in response to their Consultation Paper, Good character in sentencing.

The submission set out the Law Society’s response to each question raised in the Consultation Paper, and overarching views, including:

• material considered ‘good character evidence’ can assist judicial officers to deliver individualised justice by meaningfully assessing other factors relevant to sentencing, such as the offender’s prospects of rehabilitation and likelihood of re-offending. Good character evidence can therefore be an important factor in sentencing and should not be barred from consideration for categories of cases or all cases more broadly;
• our support for changing the term ‘good character’ to a term that is not traumatic or distressing for victim-survivors and better reflects the substance, relevance and utility of the evidence that is currently termed good character evidence; and
• our support for procedural improvements to sentencing that would better support victim-survivors’ engagement with the process, including trauma-informed training for judicial officers and legal practitioners, facilities to support remote attendance and improvements to the language used by judicial officers in sentencing.