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Key developments

  • Model definition of family violence
  • Submission to SIRA on Post Implementation Review of the Authorised Health Practitioner Framework
  • Evaluation of the 2021 foreign investment reforms
  • Draft State Environmental Planning Policy (Housing) 2021 (draft SEPP)
  • Draft Commonwealth Integrity Commission Bill 2020: ‘reasonable suspicion’ thresholds
  • Inquiry into constitutional reform and referendums
  • Model Participation Rules version 7
  • Aged Care Quality Standards
  • Operationalising the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems
  • Open Justice Court and Tribunal Information: access, disclosure and publication
  • Draft Central Practice Direction
  • Migration Amendment (Protecting Migrant Workers) Bill 2021
  • Discussion paper: Strengthening Australia’s cyber security regulations and incentives

Model definition of family violence

The Law Society provided feedback on a Law Council model definition of family violence, which follows recommendations by the House of Representatives Standing Committee on Social Policy and Legal Affairs and the Joint Select Committee on Australia’s Family Law System that the Australian, state and territory governments should develop a nationally consistent definition.

Our position is that, while there is some value in ensuring a consistent definition of family violence across family law legislation, it would not be desirable or easy to achieve consistency across the family law and criminal law systems, as the definition is used for different purposes in those systems. Nor would it be easy to achieve a single definition across state and territory criminal law systems, due to the different legislative frameworks in the different jurisdictions.

We will continue to work with the Law Council in relation to this proposal.

Submission to SIRA on Post Implementation Review of the Authorised Health Practitioner Framework

The Motor Accident Injuries Act 2017 (‘the Act’) introduced a framework which restricts the giving of medical evidence in motor accident injuries disputes to Authorised Health Practitioners (‘AHPs’). AHPs provide expert medico-legal reports in dispute resolution proceedings. AHPs can be appointed to a matter by being the treating practitioner of the injured person, by agreement between the parties where the injured person is legally represented, or by appointment by SIRA.

The Law Society’s Injury Compensation Committee (‘ICC’) contributed to the submission, reiterating some of its comments in the recent submission to SIRA’s statutory review of the Act. ICC members are of the view that the AHP framework should be dismantled in light of the administrative burden it imposes, the limited fees chargeable by medical practitioners, and the lack of evidence that the framework has, per its initial intention, reduced the phenomenon of heavily biased reporting by outlier medical practitioners. If, contrary to our primary submission, SIRA prefers to retain the AHP framework, ICC members made further suggestions for improvement, including the reinstatement and enhancement of a structured protocol for obtaining medico-legal reports, similar to that contained in the Motor Accident Guidelines under the previous Motor Injuries Compensation Act 1999. This should promote greater uptake of joint medico-legal assessments where insurers and claimants can agree upon an assessor, encouraging the quick, cost-effective and just resolution of disputes.

Evaluation of the 2021 foreign investment reforms

The Business Law Committee contributed to a submission to the Commonwealth Treasury to inform its evaluation of the recent foreign investment reforms, which commenced on 1 January 2021.

Business Law Committee members also attended a recent virtual stakeholder roundtable with the Treasury to discuss the reforms, including how they are operating, their impact on foreign investment into Australia, and potential areas for improvement.

The draft submission comments in general terms on the effect of the reforms rather than making specific responses to the questions set out in the Consultation Paper ‘Evaluation of the 2021 foreign investment reforms’. These general comments relate to long processing times for applications, a more complex regulatory regime and how the new key concept of ‘national security business’ is likely to be impacted by related legislative reform processes.

Draft State Environmental Planning Policy (Housing) 2021 (draft SEPP)

The Environmental Planning and Development Committee contributed to a submission to the Department of Planning, Industry and Environment commenting on the draft SEPP, together with the supporting documentation. We supported the aims of the draft SEPP, which proposes a complete strategy to address affordable housing in NSW, and were generally supportive of its provisions, subject to some comments in relation to specific provisions.

The Law Society supported the updated definition of affordable housing households and the requirement that boarding houses be managed by registered community housing providers (‘CHPs’). However, affordability is now linked, not only to the size of the dwellings and the compromised amenity, but to the mandating of CHPs. The Law Society expressed concern that there may not be sufficient funded and otherwise supported CHPs to fill the need for community boarding houses.

The submission also noted that the need for greater regulation of group homes has not been addressed in the draft SEPP. We submitted that there is a need to introduce regulation to avoid this category of development being used as de facto housing for seniors or people with a disability, without the regulatory framework. The submission also commented on several other issues including non-discretionary development and student housing.

Draft Commonwealth Integrity Commission Bill 2020: ‘reasonable suspicion’ thresholds

The Public Law Committee contributed to a Law Society submission to the Attorney-General’s Department on the discrete issue of whether/what thresholds should apply at certain stages of an investigation into public sector corruption. The Law Society held different views to that expressed by the Law Council, due to state-specific factors.

The Law Society’s position is that integrity bodies are essential for public confidence in government, and that, while a ‘reasonable suspicion’ threshold is common in criminal law, anti-corruption bodies are generally investigative bodies. The Law Society position is that in NSW, significant investigations and findings have been built on fairly nebulous information received, including the investigation into Mr Edward Obeid Snr, Mr Ian Macdonald and others, which has now culminated in criminal convictions. The Law Society of NSW has previously expressed its view that the NSW ICAC’s approach now strikes the correct balance between the breadth of power required for an anti-corruption investigation body, and protections for the individual, after the 2017 amendments to the ICAC legislation.

The submission also noted that, critically, including a threshold for referral for the commencement of investigations creates a jurisdictional fact. This exposes the CIC to judicial review and litigation prior to an investigation even starting, noting that it is often relatively powerful individuals involved in corruption matters. Such litigation would have resourcing implications for the CIC. The submission concluded that if the public perceives that the Integrity Commissioner, in practice, lacks the requisite power to even commence investigations, this will have significant implications for public confidence in the CIC to meet its role as an effective anti-corruption body, which is likely to have larger detrimental impacts on public confidence in the integrity of government.

Inquiry into constitutional reform and referendums

The Public Law Committee contributed to a Law Society submission to the Law Council of Australia commenting on the following:

  1. opportunities to improve public awareness and education about the Australian Constitution;
  2. suggestions for mechanisms to review the Australian Constitution and for community consultation on any proposed amendments before they are put to a referendum;
  3. the effectiveness of the arrangements for the conduct of referendums set out in the Referendum (Machinery Provisions) Act 1984 and the need for any amendments.

The submission provided responses based partly on a long-standing view of the Public Law Committee, expressed previously to the Law Council in respect of a federal election policy platform, that the constitutional reform process should not be ad hoc, but instead should be supported by a standing Constitutional convention.

Model Participation Rules version 7

The Property Law Committee contributed to a submission to the Law Council on version 7 of the Model Participation Rules (‘MPRs’), released by the Australian Registrars’ National Electronic Conveyancing Council (‘ARNECC’) for public consultation. This version of the MPRs is focused on changes to the regulatory framework to support interoperability in electronic conveyancing.

We broadly supported the proposed changes to the MPRs, a number of which mirror proposed changes to the Model Operating Requirements. We suggested several amendments for consideration by ARNECC, many of which are aimed at strengthening the regulation of financial settlement and will complement intended changes to the Electronic Conveyancing National Law.

We also suggested that consideration be given to amending the Client Authorisation Form to include an express authorisation from the client that the transaction may be completed via an interoperable transaction. The Client Authorisation Form is one of the main points of interaction between subscriber and client and the fact that a transaction may be completed via interoperability, depending upon the choice of Electronic Lodgment Network Operator of other parties in the transaction, should in our view be express in the authority given to the subscriber.

Aged Care Quality Standards

The Law Society made a submission to the Law Council of Australia commenting on the Aged Care Quality Standards. The Commonwealth Department of Health is evaluating the Standards following recommendations of the Royal Commission into Aged Care Quality and Safety.

We flagged that the multiple standards imposed on aged care providers can be confusing and impractical. In addition, problems can arise from the consumer’s right to make choices that are not necessarily in their best interests, if this contradicts the provider’s obligations regarding consumer safety and wellbeing. We also noted that the Standards are underpinned by a broad framework for substitute and supported decision-making which is at odds with the equivalent state and territory legislative frameworks.

Operationalising the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems

The Law Society made a submission to the Law Council of Australia on an Attorney-General’s Department Consultation Paper on Operationalising the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. This concerns the bilateral exchange of information between the Federal Circuit and Family Court of Australia, and the state and territory government agencies responsible for responding to family violence.

It is proposed to:

  • introduce a ‘short form’ order enabling the court to identify documents relevant to family safety risk which are held by state or territory agencies; and
  • authorise the court, if further information is required, to request information important or relevant to an assessment of family safety risk.

In our submission, we suggested the benefits of information sharing must be balanced with the risk of exposing the parties to further violence if private or sensitive information is brought to light or available to the parties. We also noted that the proposed reform will require proper resourcing and training for the courts and agencies involved.

Open Justice Court and Tribunal Information: access, disclosure and publication

The Children’s Legal Issues, Public Law, and Litigation Law and Practice Committees contributed responses to specific proposals set out in a paper by the NSW Law Reform Commission prepared as part of its ongoing Open Justice Review.

The Law Society put forward the view that:

  • there are clear benefits for the courts to having a list of accredited journalists, however the process for accreditation should be clear, fair and apolitical, and consideration should be given to consulting with the heads of the relevant courts in respect of the proposed process;
  • there would be little or no public interest in publishing the identity of a deceased child involved in criminal proceedings, and there may be privacy and cultural considerations for the family of the deceased; and
  • online hearings are not incompatible with the principle of open justice, however, measures need to be adopted to promote ease of access to hearings.

Draft Central Practice Direction

The Law Society made a submission to the Law Council of Australia on a draft Central Practice Direction, which set out the case management practices that apply in family law matters in both Divisions of the Federal Circuit and Family Court of Australia as of 1 September 2021.

We expressed broad support for the Core Principles for the conduct of matters which are set out in the Practice Direction; these emphasise the prioritisation of family safety risk and the just, quick, inexpensive and efficient resolution of disputes.

We also identified a range of issues where the requirements appear unclear, impractical or potentially unfair, for example where compliance with particular timeframes would be impractical given the delays experienced in obtaining expert reports and valuations, and the inherent difficulty in resolving complex and difficult family law issues. We noted that several of the proposed timeframes for court and dispute resolution events have court resourcing implications.

Migration Amendment (Protecting Migrant Workers) Bill 2021

The Human Rights Committee contributed to a submission to the Law Council in response to an exposure draft of the Migration Amendment (Protecting Migrant Workers) Bill 2021 (‘Draft Bill’).

The submission affirmed at the outset the Law Society’s support for legislative reform to strengthen existing protocols to address worker exploitation involving migrant workers in Australia. The submission provided a number of suggestions for how the Draft Bill could be improved, including in relation to the proposed prohibition declaration scheme, protection of domestic workers, and review by the Administrative Appeals Tribunal.

The Law Society also provided comments in relation to the Assurance Protocol, a mechanism designed to protect visa holders so they can seek help if they are being exploited in their workplace, which was referred to in the Context Paper accompanying the Draft Bill.

Discussion paper: Strengthening Australia’s cyber security regulations and incentives

The Privacy and Data Law Committee contributed to a submission to the Law Council on the Department of Home Affairs discussion paper Strengthening Australia’s cyber security regulations and incentives.

The submission stated that to encourage stronger cyber security risk management, there are two considerations that should be front of mind: an impending need for security agility; and defining the different roles of actors when managing cyber security risks across the supply chain. In the view of the Law Society, as a first step, a voluntary standard for compliance is the most agile and responsive approach to managing cyber security risk through corporate governance.

Noting the potential concern that voluntary standards may not provide a strong incentive for uptake, the Law Society stated that incentives will be critical to ensuring businesses adopt standards and improve their cyber security. To this end, we proposed the implementation of a trust-mark and industry-led certification to incentivise engagement.