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Legal Tweaks

that would change NSW and the nation.

2015
Edited By
Julian Brezniak

Published By
New South Wales Society of Labor Lawyers

Artistic Design By
Lewis Hamilton

Cover Illustration By
Anna Farrell (www.strongpencil.com)

Our Mission

The New South Wales Society of Labor Lawyers aims, through scholarship and advoca-
cy, to effect positive and equitable change in substantive and procedural law, the admin-
istration of justice, the legal profession, the provision of legal services and legal aid, and
legal education.

Copyright 2015 New South Wales Society of Labor Lawyers INC9896948.

Disclaimer

Any views or opinions expressed are those of the individual authors and do not neces-
sarily reflect the views and opinions of the New South Wales Society of Labor Lawyers or
of the Australian Labor Party. Moreover, any organisations represented in this publication
are not expressing association with the New South Wales Society of Labor Lawyers or
the Australian Labor Party.

Acknowledgements

Our thanks goes to all those who contributed to this publication, and to the lawyers be-
fore them who built the modern Australian Labor Party and embedded social justice in
our national identity. We especially thank our sponsors, Maurice Blackburn Lawyers, who
carry on the inspiring legacy of Maurice McRae Blackburn, a champion lawyer and a
federal Labor MP.

2
Legal Tweaks
INTRODUCTION 24. Noni Nelson
25. Sandra Kaltoum
1. Foreword - Mark Dreyfus QC MP
2. Foreword - Paul Lynch MP
HUMAN RIGHTS / DISCRIMINATION
3. Editor’s Note - Julian Brezniak
26. Chris Frommer
BAIL / SENTENCING 28. Adam Zwi
29. Kunal Sharma
4. Edward Santow & Sophie Farthing 30. Senthorun Raj
5. Edwina Lloyd 31. Stephen Blanks
6. Kirk McKenzie
7. Professor Nicholas Cowdery AM QC
INDIGENOUS AUSTRALIA
COMMERCIAL / CIVIL / CIVIL 34. Sarah Schwartz
PROCEDURE 35. Stephen Lawrence
36. Tanya Mitchell
8. Ben Kay
9. Dr Dominic Fitzsimmons LABOUR
10. James Glissan ESM QC
11. James Mack 37. Professor Joellen Riley
12. Troy Swan 38. Peter McNamara

CRIME MIGRATION

13. Evan James 39. Ali Mojtahedi


14. Greg James AM QC 42. Kelly Xiao
15. Gregory Jones 43. Michael Finnane QC
16. James Wheeldon
17. Professor David Dixon NATIONAL SECURITY / OPEN
18. Richard Schonell GOVERNMENT
44. Hannah Ryan
EVIDENCE
45. Henry Cornwell
19. Christopher Parkin 46. Mikah Pajaczkowska-Russell
20. Kathleen Heath 47. Professor Ben Saul

HEALTH / SOCIAL WELFARE PUBLIC

21. Anthony Small 49. Hannah Quadrio


22. Chesney O’Donnell 50. Harry Edwards
23. Claire Pullen 51. Lewis Hamilton
52. Professor George Williams AO

3
It is a pleasure to introduce the
2015 edition of Legal Tweaks.
It is certainly encouraging to see, even in
the fourth successive annual edition of
this publication, that progressive people
from all corners of the legal profession and
beyond are brimming with ideas about im-
proving our laws and reforming our legal
system.

Regrettably, the same cannot be said for


those presently in Government in Can-
berra. In so many important areas, law re-
form has ground to a complete halt during
these last two years of Liberal Government.
Meanwhile, the Government has attacked
access to justice with cuts to Legal Aid,
Community Legal Centres and other vital
legal assistance services.

We are now coming towards the end of


this parliamentary term, and entering an
election year. If we are to defeat this Gov-
ernment in 2016, it will be because we have
won a contest of ideas with our conserva-
tive opponents.

By helping foster a culture of ideas within


Labor, and by developing proposals for
progressive law reform, those who have
proposed ‘tweaks’ in this publication are
making an important contribution to La-
bor’s task.

I am grateful for their hard work, and con-


gratulate the NSW Labor Lawyers on yet
another successful edition of this publica-
tion.

Foreword Mark Dreyfus QC MP


Federal Shadow Attorney-General
Member for Isaacs
MARK DREYFUS QC MP
1
It’s a pleasure to be able to
welcome another edition of
NSW Labor Lawyers’ Legal
Tweaks.
At the centre of every successful Labor
Government is a program of progressive
law reform. This has never been an “extra”
or an “add on” for the Labor Party and the
Labor Movement.

Legal Tweaks follows in this impressive tra-


dition of progressive legal reform.
Foreword And the elements of such reform can only
PAUL LYNCH MP from debate and discussion, from
emerge
proposals such as those in this publication.
It is critically important that Labor’s policy
development is done on a broad basis and
is done rigorously. Legal Tweaks is a useful
part of this process. Particularly impressive
is the broad range of contributors that have
always been included in these publications.

This is one of many contributions that La-


bor Lawyers has made since its reestab-
lishment in the wake of Labor’s 2011 State
election defeat.

The existence of conservative Govern-


ments is a constant reminder of the need
to elect progressive reforming Labor Gov-
ernments. The contribution of Labor Law-
yers to this end is particularly welcomed.

Can I take this opportunity to congratulate


the Editor and the Executive of Labor Law-
yers for continuing this initiative.
INTRODUCTION

Foreword Paul Lynch MP


NSW Shadow Attorney-General
Member for Liverpool
PAUL LYNCH MP
2
This is the fourth annual
publication of Legal Tweaks. As
with the preceding editions of
Legal Tweaks, a simple question
is asked of progressive legal
practitioners, academics and
students of the law – what
would you change and why?
What we have collected here are respons-
es to that simple question. Answers came
from people with experience or learning
in a wide range of areas. A remarkable
number of issues are covered. The tweaks
range from general to specific, and from
symbolic to practical. A small number of
‘Longform’ contributions have been includ-
ed in this year’s edition of Legal Tweaks.

Many of these tweaks are likely to be con-


troversial. If they were not, Legal Tweaks
would not be successful in provoking
thought, debate and, ultimately, initiatives
for progressive law reform. It is the aim of
this publication to prompt a thought, spark
a conversation and encourage an act in the
right direction – not to be confined to cur-
rent party policy.

Many of the contributors (each of whom


I thank for their time) are not members of
the Labor Party or the NSW Society of La-
bor Lawyers. What the contributors share
in common with each other, the Party and
the Society is the desire to keep Australia
the just and fair place that we all want it to
be.

Julian Brezniak
2015 Legal Tweaks Editor
INTRODUCTION

Editor’s Note
JULIAN BREZNIAK
3
Edward Santow & Sophie Farthing
PUBLIC INTEREST ADVOCACY CENTRE

If you could change one for children, aiming to ensure that detention
particular section or regulation, is only ever used as a measure of last re-
sort and for the shortest possible period of
what would it be? time as required in the UN Convention on
the Rights of the Child. A more immediate
The principles set out in s 6 of the Children option would be to incorporate the s 6 prin-
(Criminal Proceedings) Act 1987 (NSW) ciples in existing NSW bail legislation. PIAC
should be adopted as the guide for bail de- hopes this would lead both to a change in
terminations involving young people. the bail conditions imposed by courts and,
importantly, how those conditions are po-
Why does this section or liced.
regulation need to be changed?
Edward Santow is the CEO of the Public In-
The section 6 principles require special con- terest Advocacy Centre (PIAC). Sophie Far-
sideration to be applied to children caught thing is a Senior Policy Officer at PIAC.
up in the criminal justice system. Children
require guidance and assistance, for exam-
ple, for their education not to be disrupted
and to reside at home where possible.
PIAC would like to see
a separate bail regime
For many years PIAC has observed the im-
for children, aiming to
BAIL / SENTENCING

pact and role that bail laws play in the un-


lawful and unnecessary detention of young ensure that detention
people. Being detained on remand is often
the first entry point young people have with is only ever used as a
the criminal justice system, after which there measure of last
are few exit points.


resort..
PIAC would like to see a separate bail regime

4
Edwina Lloyd
PRINCIPAL, LLOYD CRIMINAL LAW & 2015 STATE LABOR CANDIDATE FOR SYDNEY

If you could change one tion ‘o’ (a mandatory condition) requiring


particular section or regulation, the offender to undertake community ser-
vice work. But, to be eligible for the com-
what would it be? munity service component the offender
must not have any ‘unresolved drug issues.’
I would amend the mandatory community As community service is a mandatory con-
service work condition in clause 186(o) of dition, this means that the offender will not
the Crimes (Administration of Sentences) be eligible for an ICO if they have any such
Regulation 2014 (NSW) (‘the Regulations’) issues.
that must be imposed by a court when
sentencing an offender to an Intensive Cor- A mandatory condition for an offender to
rections Order (ICO). be abstinent before they can be eligible for
an ICO is a catch 22 situation and defeats
Why does this section or the purpose of being sentenced to an ICO.
regulation need to be changed? If an offender could get clean off the drugs
without an ICO they wouldn’t need an ICO
The Crimes (Sentencing Legislation) to get clean off the drugs. The irony is that
Amendment (Intensive Correction Orders) those that would benefit the most from the
Bill 2010 was introduced by the NSW Labor opportunity of an ICO are the least likely to
government. The Bill removed the sentenc- be deemed suitable.
ing option of periodic detention because
BAIL / SENTENCING

there existed ‘no case management or If an offender has unresolved drug issues,
therapeutic or rehabilitative support for of- the condition should be that the offender
fenders’. The ICO is ‘designed to reduce an undertake detoxification and/or residential
offender’s risk of re-offending through the rehabilitation until illicit drug use ceases pri-
provision of intensive rehabilitation and su- or to undertaking community service work.
pervision in the community’.

The sentencing court must impose condi-

5
Kirk McKenzie
PARTNER, HAYLEN McKENZIE

If you could change one Committee of the United Nations made a


particular section or regulation, decision in response to a complaint made
by two current NSW prisoners, Bronson
what would it be? Blessington and Matthew Elliot.
I would amend section 154A of the Crimes Their convictions related to a murder com-
(Administration of Sentences) Act 1999 mitted in 1988 while they were 14 and 16
(NSW) to exclude from its application of- years of age respectively. They had pre-
fenders sentenced for crimes committed viously both been repeatedly sexually
while they were under the age of 18 years. assaulted by adults as children and were
living on the streets at the time of their of-
Why does this section or fences.
regulation need to be changed?
The Committee decided that the effect of
Under section 154A, if a Judge recom- section 154A is to remove, in almost all cir-
mends that the offender never be released, cumstances, the possibility of release from
the Parole Authority may not direct the prison of Blessington and Elliot and that
release of the offender unless s/he is “in in those respects, the section breaches
imminent danger of dying, or is incapaci- Australia’s obligations to them as juveniles
tated to the extent that he or she no longer under the International Covenant on Civil
has the physical ability to do harm to any and Political Rights which Australia ratified
BAIL / SENTENCING

person, and ... has demonstrated that he or in 1980. A formal response was requested
she does not pose a risk to the communi- within 190 days but has not yet been pro-
ty...” vided.

This provision should not apply to prisoners Kirk McKenzie is a partner at Haylen McKen-
whose relevant offences were committed zie, a member of NSW Labor’s Review Tribu-
when they were aged less than 18 years. nal and a Commitee Member of the NSW
On 22 October 2014, the Human Rights Society of Labor Lawyers.

6
Professor Nicholas Cowdery AM QC
FORMER NSW DPP, PROFESSOR OF LAW, BARRISTER AND CONSULTANT

If you could change one government ordered an immediate review


particular section or regulation, and adopted all recommendations made a
few weeks later.
what would it be?
I would repeal Division 1A of Part 3 of the
Bail Act 2013 (NSW) which requires a per- Abrogation of
son accused of one of a list of offences to
show cause why his or her detention is not
fundamental principles
justified before a bail authority even con- that have served well
siders the unacceptable risk test. Other-
wise, bail must be refused. for centuries should


not be tolerated.
Why does this section or
regulation need to be changed?
In the 2014 tinkering the presumption of
Division 1A (sections 16A and 16B) was in- innocence was watered down as a guiding
serted as part of the unwarranted and inap- principle. The “show cause” invention, for
propriate tinkering with the Bail Act carried the first time, reversed the onus of proof
out by the government in 2014 following and by arbitrary listing of offences further
part one of the Hatzistergos review of the penalised those suffering charging deci-
BAIL / SENTENCING

2013 Act. sions by police. Abrogation of fundamental


principles that have served well for centu-
That Act replaced the 1978 legislation (con- ries should not be tolerated.
stantly amended) and provided a coherent
and principled regime for bail. It passed Bail is not a punishment, although in NSW it
both Houses of Parliament unanimous- has become so for many people. One third
ly. But within weeks, following shock-jock of our adult prison population are remand
confected outrage about three cases, the prisoners.

7
B en Kay
PARTNER, KAY & HUGHES ART AND ENTERTAINMENT LAWYERS

If you could change one poorly with modern communications and


particular section or regulation, technologies, which ensure that most
Australians now author numerous “publi-
what would it be? cations” each day. Existing laws create a
situation where even minor disputes re-
The States and Territories should amend garding such publications are regulated
the Uniform Defamation Laws to include by unforgiving, technical and widely mis-
actual damage as an element of the cause understood laws. In this framework, the
of action for defamation. exclusion of the concept of actual damage
from defamation’s elements encourages
Why does this section or litigation for relatively insignificant slurs for
regulation need to be changed? example on social media.

COMMERCIAL / CIVIL / CIVIL PROCEDURE


Defamation requires no proof of actual The addition of actual damage as an ele-
damage to succeed, whether under the ment of the cause of action for defamation
common law or the Uniform Defamation would help discourage litigation in less
Laws introduced by the Australian States significant matters, whilst still providing
and Territories in 2006. Whilst the concept protection to plaintiffs who have suffered
of harm sustained is contemplated as a de- serious, demonstrable loss. Proof of harm
fence (at s 33 of the Defamation Act 2005 is not an alien concept to other areas of
(NSW) (the Act)) and in relation to potential law, and previously existed in relation to
remedies (at s 34), no evidence of actu- the laws of slander. Blanket acceptance of
al damage is required for a claim itself to the change would be obviously preferable,
succeed. Instead, s 7(2) of the Act provides and the legislation underlying the Uniform
that “the publication of defamatory matter Defamation Laws already exists to facilitate
of any kind is actionable without proof of that process. Such a change would pro-
special damage”. tect reputation in a far more proportionate
manner.
Defamation law is complex and interacts

8
Dr Dominic Fitzsimmons
SESSIONAL LECTURER, UNSW FACULTY OF LAW

If you could change one for a sustainable life, by encouraging rea-


particular section or regulation, soned decision making.
what would it be?
I would change s 181 of the Corporations [Companies] roles are
Act 2001 (Cth), that requires directors to
act in good faith to make decisions in the
both to lead and reflect
best interests of the corporation, by adding the general views
the requirement that directors perform that
duty ‘by giving equal weighting to profit expressed in...
society.

maximisation, social and environmental
care’.
COMMERCIAL / CIVIL / CIVIL PROCEDURE

Why does this section or Pragmatic reasons: It allows directors to


regulation need to be changed? make decisions knowing that they have po-
litical and legal cover for what may appear
Symbolic reasons: Companies are an inte- to be short term losses. It also provides a
gral part of the social and economic activ- more deliberate framework for what is ex-
ity of broader society and play a powerful pected of directors, rather than the current
role in the distribution of wealth and oppor- nebulous definition, which clearly is not
tunity. So their roles are both to lead and working efficiently as a response to con-
reflect the general views expressed in that temporary challenges. And finally, it helps
society. This change would indicate how to set the framework for balancing the long
serious corporations take the legacy of the term needs for significant and sustainable
GFC, which basically redistributed wealth investment with the short term desire for
from the middle and working class to the immediate reward.
very wealthy. And it is the right thing to do
because it reflects the community’s desire

9
James G lissan ESM QC
BARRISTER, HB HIGGINS CHAMBERS

If you could change one the very purpose for which the provision
particular section or regulation, was intended.
what would it be? Frequently, ordinary people will be before
a tribunal member to defend themselves
Section 45 of the Civil and Administrative from either substantial corporations or
Tribunal Act 2013 (NSW) which provides from Government. They may be prosecu-
that a party to proceedings in the Tribunal tors or defendants. Those inchoate bodies
(NCAT) has the carriage of his or her own will be represented by employees, doubt-
case and is not entitled to be represent- less selected for their capacity to present
ed by any person unless the NCAT grants cases to the NCAT. The hapless citizen is
leave. denied what in other places such as the
USA is regarded as a fundamental right,

COMMERCIAL / CIVIL / CIVIL PROCEDURE


Why does this section or part of the ‘due process’ required by law.
regulation need to be changed?
From its inception, the bar grew to stand
The NCAT is charged with the determina- between individual citizens, who may be
tion of a disturbingly wide range of admin- from their inherent limitations, incapable of
istrative, but curial or quasi-curial functions. properly representing themselves, and the
In the ostensible, but artificial, pursuit of State for the purpose of ensuring fairness
cost-effective resolution of disputes, many and avoiding injustice.
of the least capable and most vulnerable
people in society are brought before tri- It is inappropriate and wrong in the 21st
bunals of varying intellectual capacity and Century, and in the year of the 800th an-
doubtful rigour. That they, who may neither niversary of Magna Carta, to deny that
be linguistically nor educationally capable fundamental entitlement to the citizens of
of representing themselves, are denied NSW.
proper representation, in both my view and
my experience, directly operates to defeat

10
James Mack
BARRISTER, LEVEL 22 CHAMBERS & SECRETARY, NSW LABOR LAWYERS

If you could change one The jurisdiction of NCAT contrasts to the


particular section or regulation, $100,000 jurisdictional limit of the gen-
eral division of the NSW Local Court. An
what would it be? appeal from the general division lies to
the Supreme Court. The Suitors’ Fund Act
I would amend s 6 of the Suitors’ Fund Act empowers the Supreme Court to grant an
1951 (NSW) to allow the NCAT Appeal Pan- indemnity certificate to an unsuccessful
el to grant an indemnity certificate to an respondent. This means that if you are suc-
unsuccessful respondent in relation to the cessful at first instance in the Local Court
costs of an appeal. but lose on appeal you can recoup $10,000
of your legal costs for the appeal from the
Why does this section or Suitors’ Fund. However no such relief is
regulation need to be changed? available if you were successful at first in-
COMMERCIAL / CIVIL / CIVIL PROCEDURE

stance at NCAT and then unsuccessful on


The NSW Civil and Administrative Tribu- appeal before the NCAT Appeal Panel.
nal (NCAT) is a ‘super tribunal’ with vast
jurisdiction. It can make an order for up The Suitor’s Fund Act ought be changed to
to $400,000 in relation to a retail ten- ensure that those who have had their day
ancy claim, $500,000 for a claim under in the Tribunal miscarry have the same ac-
the Home Building Act 1989 (NSW) and cess to costs relief as those who have had
$500,000 for an application under the their day in court miscarry.
Agricultural Tenancies Act 1990 (NSW). An
appeal right from the Tribunal lies to the
NCAT Appeal Panel. The right to be legally
represented in NCAT is by leave however it
is routinely granted in matters before the
NCAT Appeal Panel given the nature of ap-
peals and sums involved.

11
Troy Swan
HEAD OF LEGAL AND COMPANY SECRETARY, STAPLES AUSTRALIA AND NEW ZEALAND

If you could change one may also structure their arrangements to


particular section or regulation, utilise this exception resulting in Australian
consumers paying more.
what would it be?
Repeal section 51(3) of the Competition
and Consumer Act 2010 (Cth) (CCA). The ACCC should be
able to regulate anti-
Why does this section or
regulation need to be changed? competitive conduct in
IP-based industries...
The CCA contains provisions promoting
competition and consumer protection. “
COMMERCIAL / CIVIL / CIVIL PROCEDURE
However, broadly there is an exception to The 2013 Commonwealth Parliamentary
liability under the CCA in s 51(3) where the inquiry into IT Pricing and the 2015 Harper
anti-competitive behaviour relates to the Competition Policy Review both recom-
imposition of or giving effect to a condition mended the repeal of s 51(3). The ACCC
of an intellectual property (IP) licence. also supports the removal of this historical
exception.
The ACCC should be able to regulate
anti-competitive conduct in IP based Competition laws apply to IP in many oth-
industries, particularly pharmaceuticals er countries including the US, with the US
and technology. having one of the strongest pharmaceuti-
cals and technology industries in the world.
Corporate competitors may enter cross- Removing this section will encourage Aus-
licensing arrangements which impose anti- tralian innovation, competition and trade
competitive restrictions on each licensee. and help push down costs for consumers
The s 51(3) exception means the CCA may in increasingly important areas such as
not apply to those situations. Companies pharmaceuticals and technology.

12
Evan James
BARRISTER, 11th FLOOR GARFIELD BARWICK CHAMBERS

If you could change one far quicker process of issuing a caution is


particular section or regulation, preferable. It would also prevent the overly
onerous effect of subjecting an individual
what would it be? to the criminal justice system in respect of
minor recreational possession offences.
I would add the cannabis cautioning
scheme to the Crimes (Sentencing Proce-
dure) Act 1999 (NSW) and expand it to cov-
er equivalent small amounts of other drugs.
Rather than tying up
officers in the lengthy
Why does this section or charge process, a far
regulation need to be changed?
quicker process of
The local court is inundated with small issuing a caution is
possession matters, especially after music


festivals or large public events, with a large preferable.
percentage of those matters being final-
ised by a form of section 10 (bond or oth-
erwise). The proposed amendment would Evan James is a barrister at 11th Floor Gar-
reduce the load on the court and allow the field Barwick Chambers who specialises in
Police to utilise their resources more effec- criminal law, as well as Mental Health and
tively at such events. Rather than tying up Sports Law.
officers in the lengthy charge process, a
CRIME

13
Greg James AM QC
FORMER NSW SUPREME COURT JUDGE & BARRISTER, 11th FLOOR GARFIELD BARWICK CHAMBERS

Law Reform: Restore and rejuvenate NSW are not to be passed unless there is no legal
Law Reform Commission. alternative. Further provide that specific de-
terrence, general deterrence and retribution
ICAC: Amend the Independent Commis- are only to be given such weight as allows for
sion Against Corruption Act 1988 (NSW) to: factors such as hardship, prior good charac-
ter, the offender’s subjective circumstances,
• make the investigatory process and role hardship to the offender and the offender’s
clear so that the ICAC’s process is not families to also be given substantial weight. In
seen as determining a conclusion of guilt; addition, the courts should take into account
and when deciding to grant a discount for a plea
• require the ICAC to avoid findings of cor- of guilty whether initial charges are reduced
ruption so as to avoid conclusions of crimi- either in gravity or number or both, such that
nality and consequent effect on the justice the utilitarian value of the plea is not dimin-
system. ished by the plea only being made when that
reduction occurs.
Bail: Provide a fairer and more fairly work-
able bail system and in particular a system Prosecution Independence: Amend the
which does not: Director of Public Prosecutions Act 1986 (NSW)
to ensure that prosecutors exercise an inde-
• over-value Police over-charging; pendent discretion in their official functions
• require an inappropriate over-analysis of not at the behest or under the instructions of
the facts; and police. Prosecutors should also be amenable
• reward failures to provide relevant evidence. for the conduct of prosecutions to the rele-
vant professional disciplinary body.
Sentencing: Provide for more readily avail-
able sentencing options as alternatives to full-
time imprisonment and amend the Crimes
CRIME

(Sentencing Procedure) Act 1999 (NSW) to


provide that full-time custodial sentences

14
Greg Jones
BARRISTER

If you could change one a person in peril, providing they can do so


particular section or regulation, without any personal risk to themselves.
what would it be?
Insert new provision under Part 3 of the ...generally civil law
Crimes Act 1900 (NSW) viz. “Failing to assist
or rescue a person who is at risk of being
systems prescribe a
duty to rescue.

harmed or injured or is in danger”.

Why does this section or


regulation need to be changed? Although such an amendment will inter-
fere with an individual’s autonomy, this
In New South Wales like most other com- can be justified on humanitarian, utilitarian
mon law jurisdictions, except in certain sit- grounds by obliging us to assist others in
uations, including, where a special relation- danger which usually would only require a
ship exists between a parent and a child or telephone call being made to the relevant
between a doctor and patient, there is no authority, rather than just merely relying on
legal duty to rescue someone in danger. our exercising compassion in such circum-
However morally you may be expected to stances.
do so. The following scenario starkly illus-
trates this dichotomy where a person who Greg Jones is a barrister who apart from
callously does nothing to save a child from having extensive experience in practising
drowning, although he/she would not be in human rights related matters from his
prosecuted for such inaction would never- Sydney chambers also has experience in
theless face social opprobrium. In contrast dealing with commercial and corporate
CRIME

generally civil law systems prescribe a duty matters.


to rescue. Article 223-6 of the French Penal
Code imposes a duty on its citizens to help

15
James Wheeldon
SYDNEY-BASED LAWYER AND 2015 STATE LABOR CANDIDATE FOR NORTH SHORE

If you could change one Further, drug dogs are best at detecting
particular section or regulation, marijuana because it is pungent and rela-
tively bulky – but the social use of marijua-
what would it be? na does not present a threat to health or
public safety that justifies the increased in-
Division 2 of Part 11 of the Law Enforcement trusion. Given the plague of alcohol abuse,
(Powers and Responsibilities) Act 2002 it is baffling that marijuana should be the
(NSW) should be amended to restrict the focus of such intense police effort.
use of drug detection dogs by NSW police.

Why does this section or


regulation need to be changed? Drug dogs are
unreliable: they return
The aggressive use of drug detection dogs
is a heavy-handed, intrusive, inequitable unacceptable levels of
false positives...

and ineffectual means of addressing the
harm arising from the use of intoxicating
substances.

Drug dogs are unreliable: they return unac- Finally, drug dogs are used inequitably.
ceptable levels of false positives, and are They are commonly seen at inner west
susceptible to conscious or unconscious train stations, yet I have never once seen
guidance from their handlers. Thus they them on the ferry from Kirribilli to Circular
can be used – again, consciously or uncon- Quay. Why is that?
sciously – by police as the basis for war-
rantless (and humiliating) public searches The money spent on training drug dogs
of citizens going about their business, or would be better spent on alcohol educa-
CRIME

indeed of anyone who just doesn’t “look tion.


right” to the police.

16
Professor David Dixon
DEAN, UNIVERSITY OF NEW SOUTH WALES FACULTY OF LAW

If you could change one communicating with suspects. Any failure


particular section or regulation, by a suspect to answer police questions,
whether or not such failure follows the pro-
what would it be? vision of legal advice, should not be admis-
sible as evidence in any court proceedings.
I would amend s 123 of the Law Enforce- The right to legal advice should be made
ment (Powers and Responsibilities) Act real and given substance by providing pub-
2002 (NSW) to require that free legal ad- lic funding, making police facilitate access
vice from publicly-funded duty solicitors to lawyers, and requiring lawyers to take re-
should be available to suspects detained at sponsibility for advising suspects in police
police stations. custody.

Why does this section or


regulation need to be changed?
This would remedy the hypocrisy of the
The right to legal
advice should be

current ‘right’ to legal advice, which is emp-
ty. Very few people detained at police sta- made real and given
tions get legal advice before being charged
because there is no funding for or organi-
substance by
sation of such services. This is despite the providing public
fact that the police station, not the court,
is the key site for decisions by police and funding.
suspects. Police resistance to the presence
of lawyers flies in the face of clear evidence
from England that the routine presence of
CRIME

lawyers in interview rooms and custody


areas does not make crime detection im-
possible, but rather often assists police in

17
Richard Schonell
FINAL YEAR LAW STUDENT & PARALEGAL, MAURICE BLACKBURN

If you could change one matter of principle this punishment is dis-


particular section or regulation, proportionate to the actual harm caused.
what would it be?
I would amend section 91HA of the Crimes Experience teaches us
Act 1900 (NSW) to make a specific defence
available to children implicated in the pro- that criminal law can
duction, dissemination or possession of
child abuse material offences.
be deaf to changing
circumstances.
Why does this section or
regulation need to be changed?

Unlike Victoria, which provides such a de-
In the rush to modernise child pornogra- fence (Crimes Act 1958 (Vic) s 70(2)), NSW
phy offences, legislators discounted the has been slow to respond to the use of new
prospect that young people could fall foul technology by young people. NSW must
of laws designed to protect them. Division follow Victoria’s lead.
15A of the Crimes Act does not take the age
of either the producer or recipient of imag- Experience teaches us that the criminal
es or videos deemed to constitute child law can be deaf to changing circumstanc-
abuse materials into account when assign- es. It is essential that the law provides an
ing criminal liability. Young people engag- exception that ensures children receive
ing in consensual and otherwise innocent the protection they need, without causing
‘sexting’ can therefore be found guilty of a unnecessary injury to the welfare and life
serious offence that attracts a maximum prospects of a young person.
punishment of ten years imprisonment
CRIME

and registration as a sex offender. While the


circumstances of each case will vary, as a

18
Christopher Parkin
BARRISTER, 8th FLOOR SELBORNE CHAMBERS

If you could change one ers and Responsibilities) Act 2002 (NSW)
particular section or regulation, comes within s 131A.
what would it be?
I would amend the Evidence Act 1995 The power to issue
(NSW) s 131A to make clear that Evidence
Act privileges are available in response to a a warrant is being
search warrant. increasingly widely
conferred.

Why does this section or
regulation need to be changed?
Unless the Evidence Act expressly applies It is incoherent to have one set of rules
to a compulsory disclosure process, the governing what information a person can
common law applies to privilege claims. resist disclosing at the investigation stage
Section 131A enables privileges created and different (more beneficial) rules oper-
by the Act to be claimed in response to ating at trial.
requirements to disclose under court pro-
cess or court orders including notices to Victoria has dealt with this by expressly in-
produce, subpoenas, and orders for dis- cluding search warrants as a form of “dis-
covery. closure requirement” in Evidence Act 2008
(Vic) s 131A(2). New South Wales should
The power to issue a warrant is being in- follow suit.
creasingly widely conferred. Warrants can
EVIDENCE

be issued, for example, by an authorised


employee of the Attorney General’s De-
partment. It is unlikely that a search warrant
issued under the Law Enforcement (Pow-

19
Kathleen Heath
FULBRIGHT SCHOLAR UNDERTAKING A MASTER OF LAWS AT HARVARD

If you could change one edge” is considered a matter for the jury,
particular section or regulation, to be fought out between the competing
experts.
what would it be?
Admitting expert evidence without requir-
I would amend s 79 of the Evidence Act ing the prosecution to establish its validity
1995 (NSW) to make opinion evidence or reliability undermines a core protection
based on specialised knowledge (that of a criminal trial: that the onus of proof
is, expert evidence) inadmissible unless must remain on the prosecution. In effect,
based on reliable and valid principles and the prosecution benefits from an assump-
methods. tion of reliability, while the defence must
engage its own experts, at cost, to test the
Why does this section or prosecution’s claim.
regulation need to be changed?
My tweak would place the onus on the
Forensic expert evidence, such as hair fol- prosecution to establish, at a voir dire and
licle analysis or finger print comparison, is in the absence of the jury, that an opinion
a powerful persuasive tool. Such evidence is supported by valid and reliable science,
can be difficult to scrutinise, and scientific based on factors such as the size and qual-
jargon can be seductive to a jury. ity of the data set on which the opinion is
based, whether the procedures used can
However, many forensic techniques pre- or have been tested, the error rates asso-
sented in courtrooms are unreliable and ciated with a technique, and whether the
lack a proper scientific basis, giving rise to procedures were conducted so as to mini-
a risk of wrongful conviction. mise human bias.
EVIDENCE

In NSW, reliability has been held to be ex-


traneous to the test for admissibility in s
79. The reliability of the “specialised knowl-

20
Anthony Small
LAW STUDENT, UNIVERSITY OF SYDNEY

If you could change one changes would lead to a greater respect


particular section or regulation, for individual’s wishes post death (allowing
them to become successful organ donors)
what would it be? lead to a greater quality and availability of
organs for those in need thereby improving
I would change Part 5 of the Guardianship the lives of recipients and their loved ones.
Act 1987 (NSW), specifically ss 32, 37, 46, Overall there is no negative impact on the
and possibly s 4 of the Act. donor and as such there seems little reason
to oppose such necessary reform.
Why does this section or
regulation need to be changed?
The purpose of these changes would be to These changes would
facilitate the use of pre-mortem procedures lead to a greater
(often use of medication or bronchoscopy)
in New South Wales to preserve the quality respect for individual’s
of organs for donation after cardiac death.
Such procedures are permitted in other
wishes post-death...
[and a] greater quality
HEALTH / SOCIAL WELFARE

Australian jurisdictions and internationally


but are prohibited in NSW by the Guardian-
ship Act. The Act allows guardians to pro-
and availability of
vide substitute consent only for treatments organs for those in
which ‘promote or maintain the health and


well-being’ of the incapacitated person. need...
Consent to pre-mortem interventions is
not within the powers of senior available
next-of-kin provided for under the Human
Tissue Act 1983 (Cth), as substitute con-
sent is only furnished after death. These

21
Chesney O’Donnell
POLICY MANAGER & LEGAL ADVISER FOR A PROFESSIONAL DOCTOR’S ASSOCIATION

If you could change one


particular section or regulation, Many health insurers claim to provide gap
cover. The reality is that the Australian pri-
what would it be? vate health system is subject to a free mar-
ket and doctors can charge what they want
Introduce a new provision into the Health on top of what the insurers and Medicare
Practitioner Regulation National Law (NSW) provide if they so wish. Their argument is
requiring medical practitioners to disclose that Medicare has been inconsistent with
to the patient in writing a cost estimate a applying fair CPI to their rebates, which is
week prior to any procedure or treatment, correct.
and enter into a written cost agreement.
However IFC standards are presently unen-
Why does this section or forceable. If a patient does not or cannot
regulation need to be changed? pay their out-of-pocket costs, the matter
may end in litigation.
Requirements regarding cost agreements
between a doctor and their patient are The proposed amendment would require
not legislated. What exists is an unenforce- additional disclosure by medical profes-
HEALTH / SOCIAL WELFARE

able standard called ‘informed financial sionals bringing health practitioners in line
consent’ (IFC) which states that a doctor with the legal profession, currently gov-
should provide to their patient within a rea- erned by Part 4.3 of the Legal Profession
sonable time a cost estimate of their pro- Uniform Law (NSW).
cedure. However this standard isn’t always
followed. In the private health sector when Chesney O’Donnell (BA LLB MCulMed
a patient is operated on and, despite hav- GDLP) is a policy manager and legal adviser
ing private health insurance and assistance for a professional doctor’s association. He
from Medicare, high out-of-pocket or gap has also worked in academia, police and
expenses can follow. This can cause hard- fair trading.
ship and confusion for the patient.

22
Claire Pullen
INDUSTRIAL OFFICER, FIRE BRIGADE EMPLOYEES’ UNION

If you could change one work test if they have performed at least
particular section or regulation, 330 hours of ‘qualifying work’ in a ‘qualify-
ing period’, being a period of 295 consec-
what would it be? utive days of work or a ‘permissible break’.
I would change Part 2-3 ‘Eligibility for paren- The inclusion of ‘consecutive’ in these sec-
tal leave pay’ of the Paid Parental Leave Act tions not only unnecessarily complicates
2010 (Cth) to allow non-consecutive work the calculations for eligibility, it fails to ac-
to be included in the ‘work test’ of eligibility knowledge the realities of casual, inter-
for paid parental leave. mittent, sessional and non-standard work
practices. There is also the tension creat-
Why does this section or ed by having two different time periods in
regulation need to be changed? which to demonstrate work which is exac-
erbated by ‘the ‘consecutive’ requirement.
To be eligible for paid parental leave, a per- The Explanatory Memorandum to the Act
son must complete ‘qualifying work’ of at sets out that the primary carer must have
least one hour per day, or be on paid leave, ‘been engaged in work for a total period
during the ‘work test period’, the 392 days spanning at least 10 of the 13 months pri-
HEALTH / SOCIAL WELFARE

immediately prior to the birth of the child or to the expected birth or adoption of the
for whom parental leave is taken. child’. The proposed amendment would
ensure that all work in that period for one
During this time, a person may ‘not work’ employer was included in the calculations
and not take leave and still be eligible for for eligibility.
paid parental leave, but only if these days
not working are a ‘permissible break’ (s 36).
A permissible break requires the days not
working to be consecutive.

Section 32 provides a person satisfies the

23
Noni Nelson
RECIPIENT OF THE LAWYERS WEEKLY LAW STUDENT OF THE YEAR AWARD


If you could change one
particular section or regulation, The ‘food free’
what would it be?
exception
Amend s 4A(6) of the Smoke-free Environ- undermines...public
ment Act 2000 (NSW) so that the definition
of “food” includes, rather than excludes, health objectives.
“drink”.

Why does this section or The object of the Act ‘is to promote public
regulation need to be changed? health by reducing exposure to tobacco
and other smoke in certain public places’.
On 6 July smoking was banned in outdoor The ‘food free’ exception undermines these
public places. Under the current legislation, public health objectives. Premises using the
this encompasses commercial outdoor, exception continue to expose their clientele
seated, dining areas in which food can be to second-hand tobacco smoke in the same
purchased and consumed. Anyone found way, while designating certain areas as food
HEALTH / SOCIAL WELFARE

smoking in such an area, or any occupier free discourages people from eating whilst
that allow such smoking to occur, can now consuming alcohol, which has many nega-
be fined up to $550 and $5,500 respectively. tive flow-on effects.

However, there is an exception to this ban Noni Nelson is a University of Canberra Arts/
if food is not available in that area. Conse- Law graduate and recipient of the University
quently, many of Sydney’s favourite pubs of Canberra Herbert Burton Medal and Law-
have decided to make otherwise designated yers Weekly Law Student of the Year Award.
outdoor eating areas “food-free” as opposed
to “smoke-free”. This directly contributes to
irresponsible service of alcohol.

24
Sandra Kaltoum
LAW GRADUATE & FORMER TRANSPORT WORKERS’ UNION LEGAL OFFICER

If you could change one garding the provision of online “credit” by


particular section or regulation, sports betting companies. As interest is not
charged on credit supplied by these betting
what would it be? companies, the credit contracts are not reg-
ulated by the NCC. The NCC sets out condi-
I would amend s 5 of the National Credit tions that must be complied with for a valid
Code (“NCC”) (sch 1 of the National Con- credit contract.
sumer Credit Protection Act 2009 (Cth)) to
ensure that credit provided wholly or pre- Gambling debts are often recovered on be-
dominantly for the purpose of gambling is half of sports betting companies by debt col-
regulated by the NCC. lectors. The report mentions one company
which, if the debt is outstanding for 28 days,
Why does this section or refers the matter to a debt collector and can
regulation need to be changed? commence legal action two weeks after the
referral. The consequences of legal action and
According to the Productivity Commission debt collection costs often lead to a spiral of
Inquiry Report on Gambling, around $19 bil- financial strife that, in some cases, can leave
lion was spent by consumers on Australian people, and their families, without any money.
gambling products in 2008-09 (No. 50, 26
HEALTH / SOCIAL WELFARE

February 2010). More than half of all sports If the NCC’s coverage is extended to include
betting is now conducted online. Such a rap- credit provided for gambling purposes, cred-
id increase in the use of online sports betting it contracts will be subject to greater scrutiny
applications requires increased regulation, and people betting online will have greater
hopefully decreasing the social harms attrib- clarity regarding the terms under which the
utable to uncontrolled gambling addictions. credit is provided.

A recent report produced by Financial Coun-


selling Australia, titled Duds, Mugs and the
A-List, highlighted the lack of regulation re-

25
Longform

Chris Frommer
RESEARCHER & LAWYER, FORMERLY AT COMMUNITY LEGAL CENTRES

If you could change one of the Family Court under the Family Law
particular section or regulation, Act 1975 (Cth), s 67ZC and were beyond
the bounds of parental responsibility to
what would it be? consent to medical treatment on behalf of
their children. As a result, such treatments
Amend the Family Law Act 1975 (Cth) to may only be carried out if the Family Court
remove the requirement that children with has either declared the child competent to
gender identity dysphoria obtain an order consent or ordered that the treatment may
from the Family Court for certain treat- be carried out. Both of these orders require
ments when there is agreement between that an application be made to the court,
the child, parents and doctors that the supported by relevant evidence, and judg-
treatment is necessary. ment be given in the usual way.


Why does this section or
HUMAN RIGHTS / ANTI-DISCRIMINATION
regulation need to be changed? The Family Court
The Family Court is receiving increasing is receiving
numbers of applications from children increasing numbers
seeking treatment for gender dysphoria (or
gender identity disorder), a condition char- of applications from
acterised by distress felt as a result of dis- children seeking
congruity between the child’s felt gender
and the child’s biological sex. treatment for gender
Irreversible elements of treatments for
dysphoria...
gender dysphoria were, in Re Jamie [2013]
FamCAFC 110, held to be “special medical In this circumstance, the court is not in a
treatments”. This meant that they came position of any greater expertise than the
within the statutory welfare jurisdiction child and the child’s family and doctors,

26
and it is not being called on to resolve any The relevant change could be effected
dispute. Further, the court process is inher- by, for instance, the insertion of a section
ently uncertain and highly distressing, par- into the Family Law Act with provisions (a)
ticularly given that the question in issue is granting parents or guardians the power
so inextricably linked to the child’s identity to consent to treatments for gender dys-
and sense of self. The process also places phoria where they have received medical
a substantial financial and practical barrier advice to do so and (b) stating that such
to children accessing the care that they consent ceases to be effective if any party
need, in circumstances in which the timing with an interest in the welfare of the child
of the treatment in the child’s physical de- applies for the decision to be made by the
velopment is an important consideration. court instead.
Over-regulation in this area, particularly in
comparison to other medical treatments
with permanent effects, reinforces harmful
messages about the ‘abnormality’ of peo-
ple with gender dysphoria.
HUMAN RIGHTS / ANTI-DISCRIMINATION

27
Adam Zwi
GRADUATE SOLICITOR

If you could change one their age and inexperience, are in a position
particular section or regulation, of vulnerability. Evidence clearly shows that
LGBTI young people are disproportionately
what would it be? at risk of mental health issues, depression,
substance abuse, self-harm and suicide.
I would repeal section 38(3) of the Sex Dis- Against this background, the public inter-
crimination Act 1984 (Cth) (SDA) and sec- est is best served by ensuring that LGBTI
tions 38K(3) and 49ZO(3) of the Anti-Dis- young people receive the maximum pos-
crimination Act 1977 (NSW) (ADA). sible benefit of anti-discrimination legisla-
tion.
Why does this section or
regulation need to be changed? Religious organisations have argued that
the exception under the Commonwealth

HUMAN RIGHTS / ANTI-DISCRIMINATION


The Commonwealth SDA prohibits dis- SDA is necessary to enable schools to fos-
crimination on sexual orientation, gender ter a religious learning environment. This
identity and intersex status grounds. How- justification cannot extend to the NSW
ever, there is an exception for educational ADA. This act prohibits discrimination
institutions established for religious pur- on homosexuality or transgender status
poses. That means a religious school could grounds. However, there is an exception
expel an LGBTI student. for all private educational authorities, re-
gardless of whether they are religious.
The fact that such expulsions do not of- This means that an LGBTI student’s pro-
ten occur is no defence for the provision. tection from in-school discrimination turns
A law that is not used may nevertheless on whether he/she attends a private or a
serve a legitimising purpose by sending a government school. This situation is an af-
message that the conduct it authorises is front to the principle that protection from
acceptable. This provision permits discrim- discrimination should only be displaced to
ination in an environment composed of accommodate other fundamental rights,
children and young adults who, by virtue of such as freedom of religion.

28
Kunal Sharma
GRADUATE STUDENT & RHODES SCHOLAR AT THE UNIVERSITY OF OXFORD

If you could change one power to legislate with respect to same sex
particular section or regulation, marriage. A costly referendum is therefore
not required. Nor is a plebiscite. It is within
what would it be? the power of the democratically elected
members of Parliament to recognise that
I would amend the interpretation of ‘mar- the weight of arguments – based on moral-
riage’ in s 5 of the Marriage Act 1961 (Cth) ity, equality, international human rights and
to include marriage between two adults the legal developments in other advanced
without regard to the sex or gender of the democracies – favours this reform.
couple.
Issues of exclusion, homelessness and
Why does this section or sexual exploitation continue to face many
regulation need to be changed? LGBTQ people, particularly trans people
HUMAN RIGHTS / ANTI-DISCRIMINATION

and queer people of colour and those with


Marriage is a legal institution. According disabilities. Legislating in favour of same
to the High Court of Australia, the consti- sex marriage would be a symbolic move to-
tutional power in s 51(xxi) to legislate with wards greater equality for LGBTQ citizens.
respect to ‘marriage’ refers to ‘a consensual Justice Kennedy’s emotive appeal to the
union formed between natural persons … equal dignity of all humans in Obergefell v
to which the law accords a status affecting Hodges, 576 US __ (2015) has fallen on deaf
and defining mutual rights and obligations’ political ears in Australia. If we have any
(Commonwealth v Australian Capital Terri- hope, as a society, of respecting the inter-
tory (2013) 250 CLR 441, [33]). sectional identities of people and moving
towards a better framework of equality pro-
As a legal institution, the protection and re- tection, we must stop defending inequality
sponsibilities of marriage should be open by reference to history and religion.
to all couples. In Commonwealth v ACT,
the High Court specifically held that the
federal Parliament had the constitutional

29
Senthorun Raj
VISITING DOCTORAL FELLOW, NYU LAW SCHOOL

If you could change one decision reaffirmed that such changes


particular section or regulation, were contingent on evidence of surgical
intervention (regardless of whether it was
what would it be? “successful” or not) and marital status (no
change of sex is possible where it would
NSW should allow individuals to regis- result in a same-sex marriage).
ter changes to sex or gender based on
self-identification and remove existing sur- Many transgender people do not seek
gical and relationship status considerations diagnosis, surgery or other medical treat-
by repealing ss 32B(1)(b) and 32B(1)(c) of ment. It can be dangerous and/or enor-
the Births, Deaths and Marriages Registra- mously expensive. Many who are married
tion Act 1995 (NSW) (the Act). do not wish to formally dissolve their re-
lationship in order to claim recognition of

HUMAN RIGHTS / ANTI-DISCRIMINATION


Why does this section or their gender. Repealing these provisions
regulation need to be changed? would also remove the need for doctors to
certify a person’s surgical history.
NSW allows individuals to amend the sex
registered on their identity documentation. Gender identity recognition should not be
Section 32B of the Act enables individuals conditional on medical, surgical or relation-
to apply to record a change of sex if they: ship status. Malta and Ireland, for example,
(i) live in NSW; (ii) have undergone a sex af- have passed laws that make changing sex
firmation procedure; and (iii) are unmarried. or gender markers on identity documents
a largely administrative process. NSW (and
Gender identities and expressions come the rest of Australia) must follow suit.
in varied forms. Recently, the High Court
of Australia held in Norrie that not every-
one fits into a male/female binary and that
a person could be registered as having a
“non-specific” sex in NSW. However, the

30
Longform

Stephen Blanks
PRESIDENT, NSW COUNCIL FOR CIVIL LIBERTIES

After 14 years of hyper-legislation in response of executive power in arbitrary, non-review-


to the terrorism threat, much of which has able and secretive ways.
been in conflict with human rights, the rule of
law and civil liberties, we need to recalibrate Reform of many laws is required to remedy
the relationship of the individual to the State the damage that has been done. It is difficult
and make changes to the law to strengthen to choose one area above others.
democracy and the rights of the individual
against the State. Building on my proposal last year to amend
section 189 and 196 of the Migration Act 1958


(Cth), I will expand on the theme of arbitrary
...we need to deprivation of liberty.

recalibrate the The right not to be subject to arbitrary deten-


HUMAN RIGHTS / ANTI-DISCRIMINATION

tion is enshrined in Article 9 of the Interna-


relationship of the tional Covenant on Civil and Political Rights:
individual to the State
Everyone has the right to liberty and security
and make changes to of person. No one shall be subjected to arbi-
the law to strengthen trary arrest or detention. No one shall be de-
prived of his liberty except on such grounds
democracy and and in accordance with such procedure as
the rights of the are established by law.

individual... However, this right has much earlier origins.


Clause 39 of the Magna Carta (1215 version)
provides:
The conceptual framework of all govern-
ments has, in recent decades, consistently No free man shall be seized or imprisoned, or
tended to increase the scope for the exercise stripped of his rights or possessions, or out-

31
lawed or exiled, or deprived of his standing in ought to be respected are being seriously
any other way, nor will we proceed with force breached.
against him, or send others to do so, except
by the lawful judgment of his equals or by the Not only that, but there are calls for new laws
law of the land. which will result in even more arbitrary deten-
tion. Two current examples are the proposed
In Australia, there are many laws that allow new citizenship stripping laws, agreed to in
deprivation of liberty inconsistently with this principle by both the Coalition and Labor
right. parties - the inevitable consequence of citi-
zenship stripping for persons within Australia
A recent example is the Maritime Powers Act will be arbitrary detention, as they will not be
2013 (Cth), which empowers Australia’s mili- permitted a visa to remain in the community
tary forces to intercept unarmed people on - and the recent calls for laws allowing invol-
the high seas, who are plainly seeking asy- untary detention of drug users. In the case of
lum, and transfer them to their country of laws dealing with drug users, it would seem
origin or a third country. that little thought has been given by those
calling for such laws as to the criteria or pro-
The Australian Security Intelligence Organisa- cesses that would apply under such laws.
tion Act 1979 (Cth) is a pernicious source of Would a statutory declaration by a parent or
a considerable number of cases of arbitrary other relative as to the individual’s drug use
detention in breach of Article 9 of the ICCPR. be sufficient?
The practical consequence of an adverse se-
curity assessment in respect of a non-citizen It is necessary to recognise that mental health
is refusal of a visa application or cancellation laws must allow for involuntary deprivation of
of an existing visa. In either case, immigration liberty. However, there are a disturbing num-
detention is an automatic consequence. ber of cases where it appears that the period
of detention is excessive due to an exces-
sively conservative approach to protection of
In itself, the secrecy is community safety.

evidence that rights Detention on national security grounds in


which ought to be peacetime ought never to be permitted, in-
cluding in relation to non-citizens. There are

HUMAN RIGHTS / ANTI-DISCRIMINATION


respected are no reasons why non-citizens who represent a
being seriously security concern cannot be adequately man-
aged in the community, just as Australian cit-


breached. izens with adverse security assessments are.
In the absence of a generally enforceable
human rights act in Australia (or indeed, an
The Migration Act remains an egregious ex- ability to enforce the Magna Carta in the face
ample, particularly having regard to the pow- of later inconsistent laws), I would propose a
er to transfer unauthorised non-citizens to law designed to expose and prevent arbitrary
off-shore detention centres. detention. The elements of such a law should
include the following:
All of the above types of deprivation
of liberty are done under a cloak of secrecy • provision to the person detained of suffi-
and typically without any right of review. In it- ciently detailed reasons for the detention to
self, the secrecy is evidence that rights which enable a meaningful challenge to be made,

32
equivalent to a brief of evidence in a crimi- To reduce the number of cases of detention
nal case; resulting from ASIO adverse security assess-
• an obligation on the government to prove ments, the definition of ‘security’ in section 4
in a Court, on the basis of open evidence, of the Australian Security Intelligence Organ-
that it is not reasonably practicable to man- isation Act 1979 (Cth) should be changed by
age the detained person in the community, deleting paragraph (aa) to remove protection
and with adequate legal representation be- of border integrity (which is code for people
ing provided to the detained person; smuggling) from the definition. The inclusion
• continuous disclosure of the number of of border integrity in the definition of national
persons who are deprived of their liberty in security was one of the shameful measures
Australia or as a result of Australian govern- taken by the Rudd government in response
ment action, other than as a result of being to an increase in the number of asylum seek-
charged or convicted of a criminal offence; ers arriving by boat into Australia. People
and who have arrived by boat to seek asylum in
• publication of sufficient details of the cir- Australia have never been a serious threat to
cumstances of persons detained to enable national security.
the public to know the consequences of
detention on Australian citizens (including
whether the person detained is married
to an Australian citizen, and whether Aus-
tralian citizen children are affected by the
detention).

People who have


arrived by boat to seek
asylum in Australia
have never been
a serious threat to


national security.
HUMAN RIGHTS / ANTI-DISCRIMINATION

33
Sarah Schwartz
LAWYER, EXPERIENCE IN INTERNATIONAL AND DOMESTIC CRIMINAL LAW

If you could change one onment rates in the NT have increased by


particular section or regulation, over 75%.
what would it be? Particular aspects of the legislation that I
would repeal due to their discriminatory,
I would repeal the Stronger Futures in the criminalising and alienating nature include:
Northern Territory Act 2012 (Cth), which
continued many aspects of the Northern • The increase in ‘star chambers’ powers
Territory Emergency Response (or ‘North- held by the Australian Crime Commission,
ern Territory Intervention’) for another 10 to investigate violence and child abuse in
years. prescribed communities, which remove a
respondent’s right to silence and make it
Why does this section or unlawful to disclose proceedings to anyone
regulation need to be changed? other than a lawyer.
• The increase in penalties for the posses-
The NT Intervention was implemented sion of alcohol in prescribed communities,
without significant consultation with the including potential imprisonment for six
Aboriginal communities most affected by months for possessing a single can of beer.
it. It has been widely criticised by Aborigi- • Blanket bans on X18+ films in prescribed
INDIGENOUS AUSTRALIA

nal communities and organisations and hu- communities.


man rights bodies for breaching the human • The prohibition of the consideration of cus-
rights of Aboriginal people, including the tomary law in bail and sentencing decisions.
right to self-determination, participation in
decision-making, respect for and protec-
tion of culture and non-discrimination and
equality. The legislation has contributed to
the over-representation of Aboriginal peo-
ple in NT prisons. Since the Intervention
commenced in 2007, Aboriginal impris-

34
Stephen Lawrence
BARRISTER, SIR OWEN DIXON CHAMBERS & 2015 STATE LABOR CANDIDATE FOR DUBBO

If you could change one many Aboriginal youth from becoming li-
particular section or regulation, censed. This scheme ensures many never
will and feeds a cycle of offending and jail.
what would it be? It is not unusual to see Aboriginal teenagers
in western NSW in jail for traffic offences,
Division 3 of Part 7.4 of the Road Transport disqualified for more than a decade, despite
Act 2013 (NSW). never having posed a risk to public safety.
The damage being done to vulnerable indi-
Why does this section or viduals and communities is profound, avoid-
regulation need to be changed? able and disgraceful.

Traffic offending and related punishment The repeal of this law should be accompa-
regimes are playing a tragic and draconian nied by a massive boost to driver licensing
role in Aboriginal over-representation in jails. schemes for Aboriginal youth, reconsider-
As a starting point in addressing this I would ation of the nexus between various types
repeal Division 3 of Part 7.4 of the Road of fine default and license suspension and a
Transport Act 2013 (NSW) which creates broader reconsideration of the penalties for
the insidious ‘Habitual Offender Declaration’ traffic offences not involving a risk to public
scheme. Many traffic offences can lead to a safety.
INDIGENOUS AUSTRALIA

person being temporarily disqualified from


driving. This part of the traffic law however Stephen Lawrence is a Barrister at Sir Owen
imposes a mandatory 5 year disqualification Dixon Chambers and formerly the Principal
if a person is convicted of 3 defined traffic Solicitor with the Aboriginal Legal Service in
offences within a 5 year period. This pun- western NSW based in Dubbo. He contest-
ishment is automatically imposed adminis- ed the recent state election as the Country
tratively and applies in addition to any court Labor candidate for Dubbo.
ordered disqualification.

Poverty, illiteracy and geography prevent

35
Tanya Mitchell
LECTURER IN CRIMINAL LAW AND CRIMINAL PROCEDURE, UNIVERSITY OF SYDNEY

If you could change one other such examples, including, in New


particular section or regulation, South Wales (potentially), the show cause
amendments to the Bail Act 2013 (NSW),
what would it be? and the amendment of the arrest without
a warrant power under s 99 of the Law
I would require every jurisdiction to confer Enforcement (Powers and Responsibilities)
upon an Aboriginal governance structure Act 2002 (NSW). Parliaments proposing
(such as the Justice Advisory Committee such amendments should be required to
(‘AJAC’) which regrettably has been abol- seek a review from an AJAC comprised
ished in NSW) the power to advise against of Indigenous leaders, academics and
proposed changes to the law that could practitioners to determine whether they
potentially increase the incarceration rates unjustifiably breach the principle of incar-
of Indigenous Australians. ceration as a last resort, one of the recom-
mendations of the Royal Commission into
Why does this section or Aboriginal Deaths in Custody. This would
regulation need to be changed? force governments to turn their mind to
the impact of proposed amendments on
One of the keys to reducing the overrepre- Indigenous people and to consider wheth-
sentation of Aboriginal people in custody er alternatives would be equally effective.
INDIGENOUS AUSTRALIA

is to prevent contact with the criminal jus-


tice system, and yet governments around
Australia continue to enact draconian laws
that have a disproportionate impact on
Indigenous Australians. Examples include
laws in Western Australia enabling the im-
prisonment of fine defaulters and the ‘pa-
perless arrest’ provisions introduced in the
Northern Territory in 2014. There are many

36
Professor Joellen Riley
DEAN, SYDNEY LAW SCHOOL & PROFESSOR OF LABOUR LAW

If you could change one for holding up a ‘scab’ sign on a picket line
particular section or regulation, during industrial action was not successful
in using the adverse action provisions, be-
what would it be? cause the employer persuaded the court
that the reason for dismissal was his breach
Amend the Fair Work Act 2009 (Cth) Gen- of a workplace civility policy. This particu-
eral Protections provisions (for example ss lar kind of insulting behaviour is intrinsic to
346 and 351) to clarify that the word ‘be- robust industrial activity. Permitting an em-
cause’ includes objective as well as subjec- ployer to dismiss on these grounds serious-
tive reasons for taking adverse action. ly undermines the benefit of the statutory
protections for freedom of association.
Why does this section or
regulation need to be changed?
A number of cases (including two High A number of cases...
Court decisions) have seriously limited the
ability of the Fair Work general protections
have seriously limited
provisions to protect workers’ rights to en- the ability of the
gage in industrial activity, and access their
workplace entitlements. The most recent
Fair Work general
cases demonstrate that the High Court’s protections provisions
interpretation of the word ‘because’ means
that if an employer has any subjectively pal- to protect workers’
rights...

atable ‘reason’ for taking adverse action, an
LABOUR LAW

employee’s application will fail, even where


the employee’s conduct was due entirely
to exercising a workplace right. So for ex-
ample, in CFMEU v BHP Coal Pty Ltd (2014)
88 ALJR 980, a worker who was sacked

37
Peter McNamara
SOLICITOR, CLARK McNAMARA LAWYERS & DIRECTOR, LAW WEEK

If you could change one ers, earning under the high income thresh-
particular section or regulation, old, find the 6 months pay cap insufficient
when unfairly dismissed. Employees in areas
what would it be? such as professional services, rely on discre-
tionary benefits. These can disappear in a
Insert a new section in the Fair Work Act wink, with no remedy.
2009 (Cth) enabling the FWC to declare
wholly or partially void, or vary, a work con- Unfair contracts rights were enshrined in the
tract if it was found to have been or to have Industrial Relations Act 1940 (NSW), to pro-
become, unfair. A work contract would be tect “wages and working conditions built up
any contract requiring work by an individu- over many years. In the event of a recession,
al, directly or indirectly. There would be no rival contractors are likely to indulge in cut-
limit on who could claim or on compensa- throat competition, that might be expected
tory orders. quickly to erode existing standards.” (Sec-
ond reading speech, 18 Nov 1959).
Why does this section or
regulation need to be changed? The new section, a child of sections 88F,
275 and 106 of the NSW Act, would provide
The current cobweb of state and federal redress against capricious and arbitrary
workplace law, in particular the Fair Work employer action for both high and lower in-
Act, assumes that high income earners come workers and be used to upset all un-
can look after themselves in the workplace fair commercial relationships. Where equity
jungle, and that the lower income earners could not deliver, absent an implied duty of
have adequate remedies. Nothing could good faith, statutory fairness could.
LABOUR LAW

be further from the truth. Many people em-


ployed by mega-corporations experience a Peter McNamara is a solicitor at Clark Mc-
disparity in power that leaves them without Namara Lawyers, a director of Law Week,
recourse when circumstances change for and Vice-President Social Justice with SVDP
reasons unrelated to their own efforts. Oth- NSW

38
Longform

Ali Mojtahedi
PRINCIPAL SOLICITOR, IMMIGRATION ADVICE & RIGHTS CENTRE

If you could change one tive procedures for assessing their need for
particular section or regulation, protection; and
• provide protection for asylum seekers
what would it be? pending determination of their refugee sta-
tus; and
I would repeal the provisions found in Part 2, • provide protection for persons given refu-
Division 8, Subdivision B of the Migration Act gee status pending their voluntary return to
1958 (Cth) (the Act) relating to regional pro- their country of origin or their resettlement
cessing and replace it with provisions similar in another country; and
to those considered by the High Court in • meet relevant human rights standards in
Plaintiff M70/2011 v Minister for Immigration providing that protection.
and Citizenship (2011) 244 CLR 144 (the Ma-
laysian solution case).

Why does this section or So why not abandon


regulation need to be changed? regional processing
So why not abandon regional processing al- altogether? I don’t
together? I don’t think either side of politics is think either side of
ready for that kind of radical thinking.
politics is ready for that
The High Court in the Malaysian solution kind of radical
case held that under the then regional pro-
thinking.

cessing provisions the Minister could not
MIGRATION

validly designate a country for off-shore pro-


cessing unless the country was legally bound
by international or domestic law to: After finding that the above criteria were
jurisdictional facts four justices of the High
• provide access for asylum seekers to effec- Court observed that the “facts necessary to

39
making a valid declaration under [the then
provisions] were not and could not be estab-
lished”. The Government’s Malaysian solution
It is no longer
was derailed. acceptable for the
Minister to have such
We have seen a report... an unconstrained
discretion.

setting out allegations
of rape, indecent
assault, sexual
The Minister was now able to transfer asylum
harrassment...on seekers with little, if any, possibility of judicial


Nauru. oversight. Since that time we have seen riots
on Manus Island resulting in serious injuries
to several of the asylum seekers; we have
To overcome the decision the Government seen the death of two young men; we have
introduced the Migration Legislation (Off- seen appalling conditions at both regional
shore Processing and Other Measures) Bill processing centres; we have seen a report
2011. The new section 198AA of the Act, by Phillip Moss setting out allegations of rape,
which sets out the reasons for the subdivi- indecent assault, sexual harassment and
sion, provides that unauthorised maritime sexual exploitation of women and children
arrival, including those in respect of whom on Nauru. We have also seen an open letter
Australia has protection obligations, should from current and former employees in Nauru
be able to be taken to any designated coun- claiming that:
try. The section further states that it is a mat-
ter for the Minster and Parliament to decide • the Department of Immigration and Border
which countries should be designated, and Protection (DIBP) had been aware of the
that such designation need not be deter- sexual and physical assault of women and
mined by reference to the international ob- children in the centre for at least 17 months;
ligations or domestic laws of that country. • the DIBP and all service providers were in-
Section 198AB(2) of the Act identifies that formed, in writing, of several incidents of
the only condition for the designation of a assault;
country as a regional processing country is • the sexual assault of a boy was brought to
that the Minister thinks that the designation the attention of the former Minister for Im-
is in the national interest. The term ‘national migration and Border Protection and yet
interest’ is not defined but s 198AB(3) of the the Department chose to keep the child in
Act provides that in considering ‘national the centre where he was subjected to fur-
interest’ the Minister must have regard to ther incidents of abuse;
whether or not the country has given any as- • there have been several allegations regard-
surances that they will process the claims of ing sexual assault of children and the DIBP
those being transferred and not expel them has refused to remove these children from
to face persecution. Finally, s 198AB(4) of the the unsafe environment;
MIGRATION

Act provides that the assurances need not be • incidents of sexual exploitation of vulnera-
legally binding and s 198AB(7) provides that ble women by detention centre staff and
the rules of natural justice do not apply. others were provided to the DIBP and se-
nior management of all service providers

40
16 months prior, however, DIBP refused to sessment of their claims; if the conditions in
remove these women from the unsafe en- the processing centre meet relevant human
vironment. rights standards and the transfer would be
consistent with Australia’s obligations under
the International Covenant on Civil and Po-
Despite all this litical Rights, the Convention on the Rights of
the Child and the Conventional Against Tor-
knowledge, women ture. The existence of these requirements,
and in turn the on-going validity of a transfer
and children continue agreement, would be subject to judicial re-
to be transferred to view.

Nauru.

Despite all this knowledge, women and chil-
dren continue to be transferred to Nauru. It is
no longer acceptable for the Minister to have
such an unconstrained discretion. Under my
proposed amendments the Minister could
only lawfully declare a country a regional pro-
cessing country if the country has effective
procedures in place for assessing protection
claims; if the country can provide protection
to asylum seekers during and after the as-

Be part of the debate

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41
Kelly Xiao
SOLICITOR

If you could change one dent Guardian visa in reg 580.222(3)(b) in


particular section or regulation, Schedule 2 of the Migration Regulations
1994 (Cth) so that it explicitly provides that
what would it be? completion of final high school exams is an
exceptional reason for Student Guardians
Reg 580.222(3)(b) in Schedule 2 of the Mi- to stay even if the student has turned 18.
gration Regulations 1994 (Cth) relating to
Student Guardian visas.

Why does this section or ...completion of


regulation need to be changed? final high school
The Student Guardian Visa (subclass 580) exams [should be] an
allows a parent or relative of an interna-
tional student (Student Guardian) to stay
exceptional reason for
in Australia to care for the student until Student Guardians to
they turn 18. However, once the student
has turned 18, the Student Guardian can stay even if the student
has turned 18.

only stay in Australia if there are exception-
al reasons. A lot of students who have just
turned 18 are often about to complete or
are in the middle of completing their final
high school exams. During this time, their
needs for the support from the Student
MIGRATION

Guardian are greater than ever. However,


the completion of final high school exams
is often not an ‘exceptional reason’.

I would tweak the criteria of the Stu-

42
Michael Finnane QC
FORMER NSW DISTRICT COURT JUDGE & BARRISTER, SECOND FLOOR WENTWORTH CHAMBERS

If you could change one were critical of its policies. The Govern-
particular section or regulation, ment, supported by the Department, finds
courts a nuisance and an irritation. It wants
what would it be? to deal with refugees administratively with
as little interference as possible from the
Repeal s 197C of the Migration Act 1958 courts.
(Cth).
Michael Finnane QC is a barrister at second
Why does this section or floor Wentworth, former Judge of the Dis-
regulation need to be changed? trict Court of New South Wales and Colonel
of the Australian Army Legal Corps. Michael
Section 197C of the Migration Act 1958 was was the first Senior Vice President of the
inserted to provide that an officer of the NSW Labor Lawyers in 1977.
Department of Immigration and Border
Protection was under a duty to remove as
soon as reasonably practicable an unlawful
non-citizen irrespective of whether there
The Explanatory
has been an assessment according to law Memorandum...
of Australia’s non-refoulement obligations
in respect of the non-citizen.
makes it clear that
the Australian
The Explanatory Memorandum to the leg-
islation (the Migration and Maritime Pow- Government is
ers Legislation Amendment (Resolving the going to ignore
MIGRATION

Asylum Legacy Caseload) Bill 2014 (Cth))


makes it clear that the Australian Govern- its international
obligations.

ment is now going to ignore its internation-
al obligations. The purpose of the amend-
ment is to overcome court decisions that

43
Hannah Ryan
LAWYER AND EXECUTIVE MEMBER, NSW COUNCIL FOR CIVIL LIBERTIES

If you could change one to the security, defence or international re-


particular section or regulation, lations of the Commonwealth.
what would it be?
Repeal s 7(2A)(a) of the Freedom of Infor- In cases of sensitive
mation Act 1982 (Cth), which exempts national security
Australia’s intelligence agencies, including
the Australian Security Intelligence Organ- information, the
isation (ASIO), from the Commonwealth’s
freedom of information regime.
section 7 exemption is
essentially otiose.
Why does this section or

NATIONAL SECURITY / OPEN GOVERNMENT
regulation need to be changed?
The only work the section 7 exemption has
The FOI Act creates a right that is the cor- to do, then, is to exempt documents, such
nerstone of open government: the right to as administrative documents, whose dis-
obtain access to documents of govern- closure could not reasonably be expected
ment agencies. As a blanket exemption for to cause damage to Australia’s security or
all Australian intelligence agencies, s 7(2A) defence, but which were created by ASIO
(a) is an unnecessarily broad carve-out to or a similar agency.
that right. This is especially true in an age
when the government is fixated on secrecy This limits completely the Australian pub-
around security matters. In cases of sensi- lic’s scrutiny of intelligence agencies and
tive national security information, the sec- their internal processes. Because section
tion 7 exemption is essentially otiose. Pur- 33 applies on a document-by-document
suant to section 33 of the Act, a document basis, it is a more appropriate and nuanced
is exempt if its disclosure would, or could response to concerns about the disclosure
reasonably be expected to, cause damage of national security information.

44
Henry Cornwell
2014 GOVERNOR GENERAL’S AWARD FINALIST

If you could change one tion to reduce a threat to a person’s life and
particular section or regulation, health. Critical enquiry into the adequacy
of those protections yields projections of
what would it be? whistleblowers imprisoned for their inabil-
ity to meet evidentiary burdens, or more
Repeal s 42 of the Border Force Act 2015 commonly, people who, foreseeing that
(Cth). risk, stay silent.

Why does this section or


regulation need to be changed?
...the Government
Section 42 of the Border Force Act makes would do “whatever
NATIONAL SECURITY / OPEN GOVERNMENT

it an offence, punishable by imprisonment


for up to two years, to record or disclose is possible” to keep
information obtained while working for the
Department of Immigration and Border
Australians safe. What
Protection. It must go. safety have we won
from this?
The right to raise “hue and cry” to draw
wrongs to public attention dates to ear-
ly Norman England. In early 21st Century

Australia, the freedom to speak out against Last year former Prime Minister Tony Ab-
abuses of state power is the critical com- bott warned of a shift in the balance be-
mon law protection which, in the absence tween freedom and security towards the
of a Bill of Rights, guards us from tyranny. latter – the Government would do “what-
ever is possible” to keep Australians safe.
Other sections of the Act offer uncertain What safety have we won from this?
protections to whistleblowers who speak
out to expose crime or disclose informa-

45
Mikah Pajaczkowska-Russell
COPYRIGHT/MEDIA LAWYER & COMMITTEE MEMBER, NSW COUNCIL FOR CIVIL LIBERTIES

If you could change one a special intelligence operation, or even to


particular section or regulation, persons who disclose evidence of serious
government wrongdoing.
what would it be?
I would repeal s 35P of the Australian Secu-
rity Intelligence Organisation Act 1979 (Cth), ...reporting provides
a new provision added in 2014. Section 35P
criminalises the disclosure of information
accountability and
that relates to a special intelligence opera- public scrutiny of
tion, with penalties of up to 10 years impris-
onment. government and its
agencies.
Why does this section or
regulation need to be changed? “ NATIONAL SECURITY / OPEN GOVERNMENT
As yet, no one has been charged under s
Section 35P operates as a secrecy provi- 35P and the Attorney General has stated
sion, with serious consequences to free- that the legislation is not directed towards
dom of the press and freedom of speech journalists. However, where the possibility
more broadly. The section has particular of sanctions such as these exist, there will
effect on journalists and whistleblowers. be a chilling effect upon the publication of
matters intricately linked to good govern-
Section 35P has vague and indeterminate ment. There is a legitimate public interest
drafting, meaning that the net of criminal in allowing media to report on security
liability is cast broadly and indiscriminately. operations where that reporting provides
Section 35P offers no protections to jour- accountability and public scrutiny of gov-
nalists acting in good faith, to disclosures ernment and its agencies.
of already public information, to persons
who didn’t know the information related to

46
Longform

Professor B en Saul
PROFESSOR OF INTERNATIONAL LAW, UNIVERSITY OF SYDNEY & BARRISTER

There should be legislated a new right to the case against them. A complete denial of due
disclosure, at a minimum, of the essence of process can also result from the invocation
any adverse allegations and evidence against of public interest immunity (to preclude the
a person in all national security cases, wheth- disclosure altogether of incriminating infor-
er civil, administrative or criminal. mation) and/or the issuance of ministerial
security certificates.
At the moment, in a range of situations Com-
monwealth law permits as much security or
intelligence information to be withheld from
an affected person as the Director General In the Leghaei case, the
of ASIO or the Attorney-General believes is Full Federal Court of
necessary so as not to prejudice national se-
Australia accepted that
NATIONAL SECURITY / OPEN GOVERNMENT

curity. National security is defined extremely


broadly. procedural fairness can
These cases include, for instance, adverse be lawfully reduced to
security assessments about non-citizens or
‘nothingness’...
non-permanent visa holders by ASIO, and re-
liance upon those assessments to refuse ref-
ugee protection visas, cancel visas or pass-

ports, or even revoke citizenship. They also In the cases of FKAG v Australia (2013) and
include security assessments leading to the MMM v Australia (2013), the United Na-
refusal or cancellation of public employment. tions Human Rights Committee found that
non-disclosure of adverse security allega-
In the Leghaei case ((2007) 241 ALR 741), the tions to refugees, leading to their indefinite
Full Federal Court of Australia accepted that detention, failed to meet minimum interna-
procedural fairness can be lawfully reduced tional human rights standards. About 30 ref-
to ‘nothingness’ in such cases, so that an ugees have already been detained without
affected person may know nothing of the trial for more than six years as a result.

47
In Europe (including the United Kingdom), lized democracies. Europe, Canada and New
the European Convention on Human Rights Zealand are no less safe for being decent.
generally requires governments to provide
a person with a summary (or the gist) of the Adequate disclosure and a fair hearing are
case against them. Such disclosure must be also essential to ensure that intelligence
sufficiently particular, and not too general, so agencies are held accountable. If security
as to reasonably inform the person of the case decisions are entirely secret, and the infor-
to answer and to enable them a fair opportuni- mation relied upon remains unscrutinised, it
ty to respond. Intelligence sources and meth- is impossible for Australians to know if those
ods can still be protected, but the affected decisions are correct or tainted by error or
person is also guaranteed basic fairness. abuse of power. At the moment, the gov-
ernment simply says: trust us – but don’t ask
questions.
Adequate disclosure Ben Saul is a Professor of International Law
and a fair hearing are at the University of Sydney, a barrister, and
essential to ensure that an Associate Fellow at Chatham House (the
Royal Institute of International Affairs) in
intelligence agencies are London.
held accountable.

Australia is currently a legal black hole in this
area. The Constitution is silent. The courts
have thus far been compliant with the par-
liament’s authoritarian willingness to crush
fairness altogether, rather than balance the
competing public interests – unlike other civi-

NATIONAL SECURITY / OPEN GOVERNMENT

48
Hannah Quadrio
PRACTISING SOLICITOR & PRESIDENT, NSW LABOR LAWYERS

If you could change one tions. It is not clear, from a review of the Bill,
particular section or regulation, how the Bill will affect and change existing
laws. Anyone who wants to find out the ac-
what would it be? tual effect of the Bill must personally locate
the existing legislation that is affected, and
I would introduce a new subsection 3(2) do a line-by-line analysis of the Bill against
into the Parliamentary Counsel Act 1970 those other pieces of legislation. This is
(Cth) (the Act), requiring that each Bill pub- time consuming process and assumes a
lished by the Office of Parliamentary Coun- level of familiarity with legislation that many
sel (OPC) that has the effect of amending affected groups and individuals do not
existing legislation be accompanied by a have.
marked-up version of every Act altered by
that Bill, in a form clearly setting out the in- My proposed amendment would have the
sertions, deletions and amendments that significant effect of making the legislative
the Bill proposes to make to the Act/s. process more open and transparent to the
wider community. Requiring the OPC to
Why does this section or publish marked-up Acts that highlight the
regulation need to be changed? actual effect of Bills, would make it easier
for members of parliament, journalists, af-
Section 3(1) of the Act states that the func- fected groups, advocacy groups and indi-
tions of the OPC include ‘the drafting of viduals to participate in parliamentary and
proposed laws’ for introduction into either public debate about proposed legislation.
House of Parliament, as well as publishing This would result in better scrutiny of pro-
those proposed laws. posed Bills, and ultimately better legislation.

At present, the OPC’s practice is to publish


PUBLIC

Bills in a form that sets out the wording of


new sections to be inserted into existing
Acts, and includes directions about dele-

49
Harry Edwards
GRADUATE LAWYER & ACTIVE MEMBER OF THE AUSTRALIAN LABOR PARTY

If you could change one Federation each member of the Legisla-


particular section or regulation, tive Assembly spoke for 15,000 residents.
Each member now supposedly speaks for
what would it be? 81,000.


Insert into the Constitution Act 1902 (NSW)
a new s 5D: A member of the public may
introduce a public bill if accompanied by Democratic
a petition signed by at least 5% of persons participation can and
currently eligible to vote in NSW state elec-
tions. should be increased
by allowing a suitably
Why does this section or
regulation need to be changed? large group of
residents to introduce
In NSW we are entirely reliant on our elect-
ed representatives to introduce new laws bills to parliament.
to parliament. This made sense at Federa-
tion when a quarter of residents could nei-
ther read nor write and radio had just been Democratic participation can and should
invented. Now, around 80% of NSW res- be increased by allowing a suitably large
idents have completed 12 years of school group of residents to directly introduce
and a quarter hold a university degree. bills to parliament. One way this could be
Communication is constant and instanta- achieved is by inserting a new provision
neous. into the Constitution Act 1902 (NSW) in the
form identified above. This is consistent
PUBLIC

Despite being better educated and more with progressive jurisdictions in the EU and
informed, residents of NSW have less in- US. There is no reason it would be inconsis-
fluence in the creation of state laws. At tent with the Australian Constitution.

50
Lewis Hamilton
TRAINEE LAWYER

If you could change one nal ballots of trade unions in Australia. An


particular section or regulation, addition of a similar section to the Com-
monwealth Electoral Act 1918 (Cth) would
what would it be? recognise the esteemed place that political
parties have in our democratic system and
I would add an additional section 7C to the bolster the internal structures of parties. It
Commonwealth Electoral Act 1918 (Cth) would give political parties the right, on for-
that provides that the goods and services mal request to the AEC, to have their inter-
of the Australian Electoral Commission nal elections conducted for free.
(AEC) should be available to political parties


free of charge on formal request.

Why does this section or The health of our


regulation need to be changed? democracy is tied
The health of our democracy is intimately
to the health of our
tied to the health of our political parties. If political parties.
political parties suffer from a democratic
deficit, democracy suffers. Internal democ-
racy impacts the selection of candidates This change would have three overriding
and internal party positions, with real im- benefits for political parties. First, it would
pacts on the way a political party presents improve the legitimacy of internal party
itself as a viable option in a general elec- structures. Second, it would allow political
tion. Like trade unions, political parties have parties to experiment with new forms of
long been recognised as having a special democratic participation in a way that was
place in our civil society, and this legislative not possible because of financial pressure
PUBLIC

change would reinforce this. The Fair Work before the change. Third, it would ensure
(Registered Organisations) Act 2009 (Cth) the quality of all candidates is maximised in
provides that the AEC will conduct inter- the political process.

51
George Williams AO
PROFESSOR OF CONSTITUTIONAL LAW, UNIVERSITY OF NEW SOUTH WALES

If you could change one tion in 1901 in the first place. It is inconsistent
particular section or regulation, with Australia’s status as an independent
nation that this provision, although now
what would it be? considered obsolete, remains in the Consti-
tution. This power of the Queen should be
Section 59 of the Australian Constitution, removed at the earliest opportunity as part
which is entitled ‘Disallowance by the Queen’. of Australia making the transition to a repub-
lic, which would finally mean that our head
Why does this section or of state was an Australian citizen rather than
regulation need to be changed? a foreign monarch.

This clause of the Constitution provides that Professor George Williams AO is a Professor
the Queen ‘may disallow any law within one of Constitutional Law, Anthony Mason Pro-
year from the Governor General’s assent’. fessor, Scientia Professor and the Founda-
The effect of this is to ‘annul the law’. Sec- tion Director of the Gilbert + Tobin Centre of
tion 59 is a relic of Australia’s colonial past. Public Law at the Faculty of Law, University of
It should not have been put in the Constitu- New South Wales.

Solicitors. Barristers. Academics. Students.

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52
When I sat at a Labor meeting in the country with only ten or
fifteen men there, I found a man sitting beside me who had been
working in the Labour movement for fifty-four years. I have no
doubt that many of you have been doing the same, not hoping for any
advantage from the movement, not hoping for any personal gain,
but because you believe in a movement that has been built up to bring
better conditions to the people. Therefore, the success of the Labour
Party at the next elections depends entirely, as it always has done, on
the people who work. I try to think of the Labour movement, not as
putting an extra sixpence into somebody’s pocket, or making somebody
Prime Minister or Premier, but as a movement bringing something
better to the people, better standards of living, greater happiness to
the mass of the people. We have a great objective – the light on the
hill – which we aim to reach by working the betterment of mankind
not only here but anywhere we may give a helping hand. If it were
not for that, the Labour movement would not be worth fighting for.

53