- Automated Decision Making and AI Regulation
- Voluntary assisted dying and offences relating to use of carriage service for suicide related material under the Criminal Code Act 1995 (Cth)
- Enhancing Australia’s foreign investment framework
- A new approach to rezoning
- Electronic Conveyancing (Adoption of National Law) Amendment Bill 2022
- NSW responses to Modern Slavery
- New family dispute resolution services for Aboriginal and Torres Strait Islander families
- Review of the domestic violence termination provisions in the Residential Tenancies Act 2010 (NSW)
Automated Decision Making and AI Regulation
The Privacy and Data Law and Public Law Committees contributed to a submission to the Law Council of Australia in connection to the ‘Positioning Australia as a leader in digital economy regulation: Automated decision making and artificial intelligence’ Issues Paper from the Department of Prime Minister and Cabinet. The Law Society acknowledged that a careful balance needs to be achieved between encouraging the incorporation of Automated Decision Making (‘ADM’) and artificial intelligence (‘AI’) and putting in sufficient safeguards to protect from unintended bias and outcomes that erode public trust and confidence in the technology.
The Law Society supported a whole-of-government approach to digital strategy, in particular, ADM. Such an approach is important to ensure a consistent and principled approach is taken across government agencies and to ensure that AI quality or safeguards are not dependent upon which department or portfolio the project is housed. We consider that it is critical to avoid fragmentation through a piecemeal approach to the regulation of AI and ADM.
We noted that increased automation poses significant risks of adverse implications for vulnerable groups. Where decisions involve vulnerable people (especially social security and some immigration decisions), we suggested the retention of manual processing options by humans in the decision-making loop.
Voluntary assisted dying and offences relating to use of carriage service for suicide related material under the Criminal Code Act 1995 (Cth)
The Criminal Law and Human Rights Committees contributed to a submission to the Law Council of Australia, which had requested feedback in relation to advocacy to the Commonwealth Government addressing the possibility of a conflict between voluntary assisted dying legislation, which has been proposed or enacted in various states, and the offences in sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) which prohibit using a carriage service for ‘suicide related material’ (‘suicide material offences’).
In New South Wales, the Voluntary Assisted Dying Bill 2021 is awaiting debate in the Legislative Council after its introduction in October 2021 by a private member.
The Law Society expressed its support for advocacy seeking amendments to the Criminal Code Act 1995 (Cth), to place beyond doubt that the suicide material offences do not extend to conduct in compliance with voluntary assisted dying laws, where they have been enacted by state legislatures.
Enhancing Australia’s foreign investment framework
The Business Law Committee contributed to a submission to the Treasury commenting on the foreign investment reform options set out in the consultation paper ‘Enhancing Australia’s foreign investment framework reforms’.
We noted that the proposed reforms do not address concerns raised by earlier submissions, including: the significantly increased scope of activities, assets and interests that are covered by the definition of critical infrastructure assets and related definitions, the extent of ministerial discretion to declare assets, activities, or interests to be covered by those definitions, and the lack of transparency around such decisions.
We also commented on areas to reduce regulatory burden; investment requiring greater scrutiny, exemption certificates, compliance and enforcement, and the refund of fees.
A new approach to rezoning
The Environmental Planning and Development Committee contributed to a submission to the Department of Planning and Environment in response to its discussion paper: ‘A new approach to rezoning’. The proposed reforms relate to ongoing reforms to the NSW planning system which aim for a ‘plan-led’ system to better align the rezoning process with strategic planning. The term ‘rezonings’ rather than ‘planning proposals’ is used to mean all changes to local environmental plans (‘LEPs’) or, in limited circumstances a State Environmental Planning Policy, that uses the existing planning proposal process even though some changes may not actually ‘rezone’ land.
It is proposed that an appeal mechanism be introduced at the end of the new rezoning application process. The Law Society supported an appeal to the Independent Planning Commission rather than to the Land and Environment Court as we consider that the zoning of land is an executive function that should not be transferred to a judicial body, which may not have appropriate expertise or resources to properly determine challenges to rezoning proposals. We also suggested that if an appeal right is granted to proponents, equivalent rights should be granted to third parties, as an oversight and accountability mechanism.
We also commented on the LEP Guideline, combining rezoning and development applications, the strategic merit test, the role of Local Planning Panels, and pre-lodgement scoping.
Electronic Conveyancing (Adoption of National Law) Amendment Bill 2022
The Property Law Committee contributed to a submission to the Legislative Council Committee Inquiry on the Bill. The broad purpose of the Bill, which we supported, is to amend the existing Electronic Conveyancing National Law (‘ECNL’) to establish interoperability, the ability for multiple Electronic Lodgment Network Operators to work together in the same property transaction.
The Law Society and the Law Council are participating in a national consultation on interoperability with the regulator, the Australian Registrars’ National Electronic Conveyancing Council (‘ARNECC’). In November 2021, we provided feedback on draft legislation very similar to this Bill. Although ARNECC made no changes to the legislation following this feedback, the relevant State Ministers committed to further consultation.
Given the existing consultation process on foot, our submission informed the Inquiry of the high-level concerns we previously raised but maintained our support for the Bill as a necessary step to implement interoperability. Some of the high-level concerns included that the proposed amendments to the ECNL do not sufficiently address financial settlement, and that where funds are misapplied a clear framework for the resolution of claims and disputes accessible by subscribers is crucial. We understand these issues will be the subject of further consultation.
The Chair of the Committee also provided evidence at the hearing, together with representatives from the Law Council of Australia. The Inquiry tabled its report on 8 April 2022.
NSW responses to Modern Slavery
The Human Rights Committee contributed to a submission to the NSW Attorney General on the NSW modern slavery regime. It encouraged the NSW Government to work with businesses to enhance their understanding of modern slavery risks and the actions they can take in response.
The submission also recorded the Law Society’s concern that businesses in NSW with a consolidated revenue of between $50 million and $100 million are not required to prepare modern slavery statements. Extending reporting requirements in this way would impact a significant number of companies in NSW that have the capacity to identify and report on modern slavery risks in their operations and supply chains.
We also suggested that the NSW Government continue its engagement with the Commonwealth on this issue as part of the statutory review of the Commonwealth Act set to commence in 2022. This is to ensure that the modern slavery regime in NSW and Australia is comprehensive, complementary, and effective.
New family dispute resolution services for Aboriginal and Torres Strait Islander families
The Indigenous Issues Committee contributed to a submission to the Law Council in respect of the Attorney-General’s Department (‘AGD’) consultation on new family dispute resolution (‘FDR’) services for Aboriginal and Torres Strait Islander families. The Law Council nominated five issues for inclusion in its submission. The Law Society agreed with the issues nominated by the Law Council, and highlighted three further considerations for inclusion:
- A model for Aboriginal FDR. The importance of designing a model of FDR for Aboriginal families that is in fact effective. This undertaking will require a lot of work, consultation and consideration, and should take place prior to considering the grants administration process, which is the issue the AGD’s Discussion Paper is focused on.
- Training for Aboriginal FDR practitioners. The Law Society emphasised the importance of considering the skills that an FDR practitioner for Aboriginal families really needs and then designing an alternative pathway for accreditation. In our view, the primary qualification required is the expertise gained from being embedded in Aboriginal culture and practices. Legal knowledge about family law and care and protection should buttress cultural knowledge. The current accreditation process is so onerous that it would pose a significant barrier to accrediting many Aboriginal FDR practitioners quickly.
- Family capacity building support. While this issue is outside of the strict scope of the Discussion Paper, the Law Society raised the need to situate the new FDR services for Aboriginal families within the larger context of family capacity building services ordinarily offered through Family Relationship Centres in the mainstream context. It is important to develop culturally effective family capacity building as an earlier intervention approach, the overarching aim of which is to divert Aboriginal children and families from the crisis-driven care and protection jurisdiction.
Review of the domestic violence termination provisions in the Residential Tenancies Act 2010 (NSW)
The Indigenous Issues Committee contributed to a submission to the Department of Customer Service (‘DCS’), which sought preliminary feedback into how the domestic violence tenancy termination provisions in Division 3A, Part 5 of the Act (as well as certain other provisions) have been operating since the domestic violence reforms commenced on 28 February 2019.
The Law Society submitted that:
- The definition of a ‘competent person’ to assist survivors of domestic violence should be further expanded to include solicitors and tenants advocates so that survivors can more easily access the domestic violence termination provisions.
- DCS should undertake better and more targeted awareness raising efforts to educate landlords and their real estate agents on the practical consequences of the domestic violence provisions.
- DCS should address the issue of different thresholds for evidence required by NCAT members in determining liability for property damage to rental property incurred for the purposes of the domestic violence termination provisions.