ISSUE TWO 2024
ETCETERA
REFORMING THE LAW
ETCETERA
REFORMING THE LAW
INTRODUCTION
Et Cetera is the flagship publication of the Deakin Law Students' Society (DLSS) It seeks to reflect the Deakin Law School zeitgeist of the time, and resonates with the interests of Deakin Law students. It aims to provoke thoughtful discussion about issues relevant to our readers as students, future legal professionals and citizens of the world.
Change is a constant in the legal world As our society is consistently evolving, it is crucial that we have a legal system which can respond effectively, introducing reform where required. This issue of Et Cetera looks to dissect the topic of law reform, with engaging articles provided by a range of illustrious contributors, all with a deep interest and passion for the topic
EDITORIAL
Editor in Chief Editor Editor Editor Design Design | | | | | | Jordan Cook
Madeleine French
Ruby Evans
Priyanka Sharma
Ruby Evans
Jordan Cook
CONTRIBUTORS
Annica Schoo
Dr Bruce Chen
Bryan Keon-Cohen
Cate Read
Cindy Cameronne
Dr Felicity Gerry KC
Gabriela Franich
Isabelle Skaburskis
Jane Hall
Jill Hennessy
Julie Debeljak
Natasha Pasahidis
Pamela Tate AM KC
Robert Clark
Simon Katterl
ABOUTTHEDEAKINLAW STUDENTS'SOCIETY
The Deakin Law Students’ Society (DLSS) is one of Deakin University’s oldest and largest student societies We are a student-run organisation which aims to assist Deakin law students in making the most of their time at law school.
Across our portfolios, we work to provide a range of events and services to assist you at every stage of your degree Whether you want to improve your grades or make new friends, the DLSS is your one-stop shop for all things law at Deakin
For more information you can find the DLSS on Instagram, Facebook, TikTok, LinkedIn or via our website
DISCLAIMER
This publication is provided free of charge by the Deakin Law Students’ Society. Any opinions expressed in this publication are not to be held as those of the DLSS, Deakin Law School or Deakin University The DLSS, Deakin Law School and Deakin University do not necessarily endorse these opinions; they belong solely to the authors
This publication is subject to copyright. Except where permitted under the Copyright Act, no part of this publication may, in any form or by any means (electronic or otherwise) be reproduced or stored in a retrieval system or transmitted by any process, without prior written consent from the DLSS
DIRECTOR’S FOREWARD
JORDAN COOK
2024 DIRECTOR OF COMMUNICATIONS
Welcome! I am delighted to introduce you to our second issue of Et Cetera for 2024
As law students, we are extremely privileged to be receiving a legal education. With this education, we are equipped with the knowledge and tools to shape the legal sector, positively influence society and advocate for those disadvantaged by the current system. We are the future generation of lawyers, and this is a role which we must take on with an understanding of how we can best promote justice, equality and human rights Therefore, I present our theme for this issue; Reforming the Law.
The creation of this issue has seen a number of illustrious contributors provide some remarkable articles. These articles outline our current vehicles for law reform, including their triumphs and pitfalls, and how we can best improve these processes It is important that we are constantly analysing and reforming the law as our society continues to evolve and adapt. The law is living, and it is crucial that we continue to push for it to change for the better
This issue marks the first time the Communications Portfolio is holding a panel event in conjunction with Et Cetera This would not have been possible without the support of our sensational committee and I am so grateful for their continued dedication.
The panel discussion aims to bring this issue to life, providing students with an opportunity to further their understanding of law reform and engage with our esteemed panellists.
As always, this issue could not have been realised without the efforts of a multitude of people
Firstly, thank you to my wonderful officersMaddy, Ruby and Pri, who have worked tirelessly, not only on this publication, but on all of the Communications initiatives this year, and taken each on with their own creativity and drive.
Further, thank you to our amazing contributors, as without their efforts we would not have been able to create such a wonderful publication. They have each taken time out of their busy schedules to write for Et Cetera and share their thoughts, perspectives and experiences, inspiring the next generation of law students
Finally, I would like to express my heartfelt gratitude to you, our valued reader Your support for the Communications Portfolio enables us to pursue our passion and make a meaningful impact. We are deeply thankful for your engagement. I hope you find these exceptional articles as engaging as I have, and that they provide you with valuable insights and perspectives, helping to shape your own legal journey and approach to the law.
OFFICERS’ FOREWARD
MADELINE FRENCH, RUBY EVANS AND PRIYANKA SHARMA 2024 COMMUNICATIONS OFFICERS
In this issue of Et Cetera we bring you an exciting discussion on law reform
In deciding on this topic, we thought about what combines our work as a portfolio with our passion for law. We considered how the law reflects society’s evolving values and how those values are reflected in its wording In investigating this topic, we found it interesting how the law is communicated, and the issues that can arise for both legal practitioners and the community Interpretation is a skill we will continue to develop throughout our careers, so we hope this issue will demonstrate to our readers the complexity of the law and the associated processes of reform
We are proud to have the opportunity to hear from renowned practitioners, industry leaders and passionate advocates on their experiences and perspectives on law reform With law reform being a topic that resonates with many law students, understanding its reality and the nuances of its varied practicability is an important next step on the path to our legal careers, informing the future of the law itself
To that end, we are incredibly excited to present to you a range of ten articles, exploring the area of law reform and its many nuances
These articles cover different areas of law, different career paths, and different understandings of the importance of law reform, its celebrations and complications
We are equally as excited to unveil this edition at the first ever panel run by the Communications Portfolio - an event that we hope is a steady accompaniment of future issues of Et Cetera.
Finally, this issue stands as a testament to the unwavering dedication, creativity and hard work of everyone involved Each article, feature and detail has been thoughtfully curated to inform and engage our community
We deeply appreciate every contributor who took the time to participate. Your expertise and commitment have made this publication a valuable resource for our readers
It has been a privilege for us to present this edition, and we are truly grateful for the opportunity to contribute to such an important topic and to work alongside such talented and passionate individuals
Lastly, a heartfelt thank you to our readers
We are confident that you will find this edition both insightful and enjoyable, and we look forward to your feedback
INTHISISSUE
ACHIEVING LAW REFORM IN AUSTRALIA: AN OVERVIEW
Bryan Keon-Cohen
LAW REFORM –GAINING THE BENEFITS AND REDUCING THE RISKS THE AUSTRALIAN LAW REFORM COMMISSION
Jane Hall and Natasha Pasahidis
Robert Clark
LAW REFORM ON THE RUN: A JOURNALIST’S VIEW OF CLASS ACTIONS
Cindy Cameronne
GIVING A VOICE TO THOSE WHO NEED IT MOST
Jill Hennessy 21
LAWS WITHOUT IMPLEMENTATION AND ENFORCEMENT: BROKEN PROMISES AND DEMOCRATICALLY CORROSIVE
Simon Katterl
REPORT FINDS ‘CLEAR NEED’ FOR AN AUSTRALIAN HUMAN RIGHTS ACT. WHAT DIFFERENCE WOULD IT MAKE?
Dr Bruce Chen, Julie Debeljak and Pamela Tate AM KC
LOOKING BEYOND AN UGLY STATUTE: NATIONAL ENVIRONMENTAL LAW REFORM
Annica Schoo
Isabelle Skaburskis 29
AN UNMET NEED: HUMAN TRAFFICKING SURVIVORS IN VICTORIA’S CRIMINAL JUSTICE SYSTEM
DrFelicityGerryKC, CateReadandGabrielaFranich
ADVOCACY AS LAW REFORM
ACHIEVINGLAW REFORMIN AUSTRALIA: ANOVERVIEW
KEON-COHEN
Law reform in Australia comes about for any of several reasons, and can be achieved – and frustrated - in various ways
Reasons
Government policy – too often geared to political advantage - is primary In the land rights / native title sphere, examples include the Fraser government’s supportive Aboriginal Land Rights (Northern Territory) Act 1976; the Bjelke-Peterson government’s repressive Queensland Coast Islands Declaratory Act 1985, enacted to kill-off the Mabo litigation ; and the Keating government’s heavily negotiated Native Title Act 1993 – each government pursuing its radically different politics and policies
Other reasons include “changes in community beliefs, values and attitudes” e g , equality for LGBTIQA+ people; changes in living conditions e g , social and/or economic and/or international developments such as reforming industrial relations, strengthening counter-terrorism laws); and advances in technology,
e g , recent legislation criminalising “deepfake” sexual material being posted on-line without consent using new AIpowered software
Means
Ways and means of achieving law reform are many and varied, but include, most significantly, petitions e.g., a 2020 epetition to the Commonwealth Parliament for a Royal Commission to investigate media diversity in Australia; a 2022 petition to pressure all governments to raise the age of criminal responsibility from ten to fourteen years. Campaigns and demonstrations are of prime importance, e g , “Change the Date” on 26 January each year; and Extinction Rebellion (XR) Australia demonstrations, as part of a global movement to raise community awareness and demand government action on climate change) Litigation is usually a last resort: e g , the Mabo litigation initiated in 1982 after years of campaigns failed to achieve nation-wide statutory reform.
1 Dr Keon-Cohen AM, KC, Victorian Bar (retired) is an Adjunct Professor at the Law Schools, Deakin and James Cook Universities
2 Mabo v Queensland (No 1) (1988) 166 CLR 186.
3 See L Filippin, A Wilson, P Farrar, Legal Studies for VCE (O U P 16th ed, 2023) 430-39 (“VCE Text”)
4 D Swan, “Schools on high alert with the rise of ‘deepnude’ apps”, The Age, 29/6/2024, 4-5
5 VCE Text, 440-42
6 Ibid, 445-6
7 Mabo v Queensland (1992) 175 CLR 1
The work of state and federal Law Reform Commissions is also important: e g , amongst numerous examples, the Victorian Law Reform Commission’s 2022 report concerning Victoria’s stalking laws containing 45 recommendations for law reform
Of course, law reform bodies have limited or no ability to investigate and report upon major issues other than those expressly referred to them by the relevant AttorneyGeneral (i e , they are subject to political considerations of the day) Further, governments and parliaments are not obligated to implement any of their recommendations
Enacting Recommendations
Reform efforts in this arena are subject to governments of all political persuasions failing to implement reform recommendations – in whole or at all - one suspects too often driven, not by the recommendations’ merits, but by shortterm political considerations
A good example of these problems, and of additional delays by a government commissioning further inquiries by Parliamentary Committees, is the ALRC’s work on native title In August 2013, federal Attorney-General Mark Drefus QC, in the short-lived Rudd Labor government (June –September 2013), provided an important reference to the ALRC to review and report upon numerous problems in the native title regime, governed by the Native Title Act 1993 (Cth)
The ALRC, following its well-established process of research and consultation, published an Issues Paper (March 2014), a Discussion Paper (October 2014), leading to its final Report – Connection to Country (September 2015) The Report made thirty recommendations for substantial reform, including changing the stringent onus-ofproof confronting claimants.
Apart from tabling the Report – as required – in the federal parliament on 4 June 2015, the Abbott government then in power (September 2013 – September 2015) did nothing. Similarly, the Turnbull (20152018); Morrison (2018 – 2022); and, to date, the Albanese (2022 – current) governments have all done nothing in response Meanwhile, problems and numerous complaints by many parties involved in the native title sector, that triggered the original reference back in 2013, continue
Undeterred, in June 2024, the same Attorney-General, this time in the current Albanese government, issued a further reference to the ALRC concerning one part only of the native title scheme, i e , a “Review of the Future Acts Regime” This inquiry is part of the Albanese government’s response to the Joint Standing Committee on Northern Australia’s inquiry into “the destruction of First Nation’s Cultural Heritage” – i e , the willful detonation of the 46,000 years-old Juukan Gorge in the WA Pilbara region by mining giant Rio Tinto.
8 See VLRC Final Report: Stalking (September 2022); VCE Text, 464-66.
9 See Connection to Country: Review of the Native Title Act 1993 (ALRC Report 126, 2015)
10 See Native Title Act 1993, s 223(1)
11 ALRC Press Release, “Review of the Future Acts Regime,” 4 June 2024
12 See Joint Standing Committee on Northern Australia, Interim Report (7/12/2020), and Final Report, A Way Forward (18/10/2021)
The ALRC’s final Report is due by 8 December 2025
Meanwhile, the Parliamentary Committee’s eight recommendations for reform in the cultural heritage protection arena have been “noted or agreed” by the federal government
Victoria has led the country in responding to widely recognised failings of, and frustration with, the native title regime Exercising its concurrent constitutional power over indigenous affairs, Victoria enacted the Traditional Owner Settlement Act 2010.
This establishes an alternative, optional negotiation-based scheme for processing native title claims within Victoria. If and when agreement is reached, a final determination of native title is made by a Federal Court Judge, pursuant to the Native Title Act 1993, thus linking the federal and state schemes. Four settlement agreements have been resolved to date in Victoria, with another under negotiation
Parliamentary Committees
This brings us to reform work by numerous Parliamentary Committees. Additional examples include the Victorian Legal and Social Issues Committee’s inquiry into Victoria’s anti-vilification protections Its report of March 2021 contained 36 recommendations to strengthen Victoria’s relevant laws, triggering legislation to “ban the display of symbols of Nazi ideology in public ”
Royal Commissions
The next law reform avenue to mention is Royal Commissions Since 1901, the Commonwealth has initiated “more than 138 Royal Commissions on a range of issues of significant public interest or concern ” These have included Aboriginal Deaths in Custody (1987-91); Institutional Responses to Child Sexual Abuse (2018-2021); and Aged Care Quality and Safety (2018-2021).
Further, of local and potentially national significance, is the currently operating Yoorrook Justice Commission, established by the Victorian government in May 2021. This engages, inter alia, in research and Truth Telling, and law reform recommendations concerning historical and ongoing injustices suffered by Victorian First Nations peoples since colonization in 1788
As at June 2024, it has produced an Interim Report (June 2022) and a Second Interim Report into Victoria’s Child Protection and Criminal Justice Systems, with 46 reform recommendations The Commission is currently working on land, sea and air injustices, with a final Report due in March 2025.
Constitutional Reform
Reasons for constitutional reform include to recognise Australia’s First Peoples ; to increase the protection of rights (triggering conservative complaints of a dangerous “Bill of Rights”);
13 See Victorian Parliament, Legislative Assembly, Legal and Social Issues Committee, Report: Inquiry into Anti-Vilification Protections (March 2021); VCE Text, 473-4
14 Ibid, 474; and see Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 (Vic)
15 VCE Text, 480
16 Ibid, 481
17 See Report, Yoorrook for Justice (August 2023)
18 E g , the failed Voice referendum of October 2023
19 E g , s 116
to change the Commonwealth’s law-making powers ; and to reform Australia’s political system
This category of “law reform” brings its own unique difficulties, as shown by the disastrous failure – 60% of electors voting NO – of the recent First Nations VOICE referendum Indeed, achieving constitutional reform in Australia is amongst the most difficult in the world, leading to a need to reform the reform process, set out in Constitution, s 128
Reform of our Constitution requires the approval of both houses of parliament, plus achieving the notorious double-majority: a majority of the electorate, and four of the six states must vote YES Since 1906, 45 referenda have been held to change the wording of the Constitution, with just eight succeeding, all with bi-partisan support
Conclusion
To my mind, two things are certain. Since society and the world we live in constantly evolves and changes, so too must our laws Second, however, governments too often pursue (or are overcome by) short-term political self-interest rather than implement much-needed law reform for social and economic improvement Law reform – a constant, and difficult struggle, as shown in the failed VOICE referendum – ideally, should be removed from politicians’ control as far as possible.
“SINCE SOCIETY ANDTHE WORLD WELIVEIN CONSTANTLY EVOLVES AND CHANGES, SOTOO MUSTOUR LAWS.“
20 E.g., the 1967 referendum to s 51(26) vesting concurrent power in the Commonwealth to legislate over aboriginal affairs.
21 E g , to create a republic by selecting an Australian to be head of state, instead of the British monarch The 1999 referendum on the republic issue failed to win majority support in any state – like the Voice referendum
22 See F Brennan, Lessons From Our Failure to Build a Constitutional Bridge in the 2023 Referendum (Connor Court Publishing, 2024)
L A W R E F O R M
Gaining the Benefits and Reducing the Risks
Changing the law can have many benefits, but it can also have many risks
Reform can end follies, injustices and out-dated practices. It can harness the fruits of new knowledge, new technology, new experience. It can extricate the law from dead-ends or misguided precedents, and it can make the law more accessible and affordable
However, overturning established laws can also undermine rights, create complexities, anomalies or other unintended consequences, or open opportunities for abuse As well, people are more likely to respect and obey long standing laws and practices, and have confidence that others will do likewise, because they attach to them a sense of solidity and objectiveness. This is the value of preserving tradition
Law reform is therefore all about coming up with potential improvements, assessing whether their benefits are likely to outweigh the costs and risks involved, and then getting worthwhile changes successfully implemented.
Here are ten principles to help increase the chances of success and reduce the risks and downsides when considering possible law reforms:
1. Build on what is there as much as possible. Anyone who thinks our law and institutions in Australia are so appalling that we need to sweep them aside and start again should read some more history and see how bad life can really get under genuinely appalling regimes, and how badly introducing an entirely new regime usually turns out We are far more likely to improve people’s lives by building on the laws and institutions we already have, no matter how far reaching our reforms
2. Respect the current law. The current law is usually there for what is, or at least once was, a good reason Don’t assume that you have superior intellect or experience that give you insights into obvious reforms that no-one else has seen More likely is that there are a range of countervailing considerations involved that you need to work through very carefully before concluding that you can do better than what is currently there.
By Robert Clark
Victorian Attorney-General (2010-2014)
3. Start with the evidence but don’t stop there Gathering evidence through systematic, competent and honest research is essential for good law reform, and legal and social science research is today much assisted by the ability to access enormous databases and to use computerised analysis.
There can be a consequent temptation to regard evidence as the be-all and end-all of law reform, or to argue that so-called “evidence based” reform is by virtue of that fact alone legitimate, objective and unquestionable
However, there can be errors in data collection and computation, people can wrongly draw unsupported conclusions even from accurate evidence, often evidence can legitimately be analysed in different ways, and factual findings do not themselves imply normative outcomes “Is” does not automatically produce “ought”
4. Get people who know what they are talking about to advise on what they know, and not beyond. Different people have different expertise and experience that can contribute to law reform in different ways However, people also tend to see issues from their own perspective, and either consciously or unconsciously to see solutions that favour them
The challenge is to know what different people can contribute and what they can’t. For example, legal practitioners are likely to have valuable insights on the details of the law and on its practical operation, but not necessarily on broader implications Law reform commissions can usually bring in more extensive evidence and wider perspectives about how laws or possible changes would work, but may have no particular expertise on the underlying social policy questions
5. Get recommendations that are as specific as possible. When citizens cry for reform, commissions recommend it, public servants interpret it, cabinets approve it, Parliamentary counsel draft it and Parliaments amend it, however the end result may not be what anyone wanted At each step of any reform, it is best to get people to be as specific and detailed as possible about what they propose, such as getting law reform commissions to include draft legislation in their reports.
6. Understand the problem, think through and evaluate the consequences and get the details right. Once you have gathered evidence and advice, careful and knowledgeable analysis is required of what the exact problem is and what causes it If you don’t fully understand the cause, you won’t get the right solution
Next, the would-be reformer needs to brainstorm and generate a range of options for possible reform and “stress test” each option by thinking through and assessing all the various consequences of how the option would work in every conceivable circumstance If the norms involved in that assessment may be contested, the reformer should make their normative basis clear
Then, in turning the best option into a worked-up solution, painstaking attention to detail is usually required In law reform, simple changes are rare, and unintended and sometimes disastrous consequences often can arise from errors in detail, even in just the wording of a single phrase, condition or definition in the amending legislation
7. Bring people with you. Don’t automatically regard those who operate under the status quo as a malevolent opponent of the good If at all possible, bring those affected along with any proposed change, either to persuade them of its need, or at least win respect for and understanding of the change that is to be made
8. Have decision makers and implementers suited to how widely the change affects people. Who is best placed to decide on and implement reform will depend on the range of issues involved and how widely the change will affect people For example, judges may be the ones best placed to iron out anomalies or resolve uncertainties in the common law through judicial decisions, but in a democracy, the changes with the broadest implications, especially those with social or values implications, are best evaluated and decided on by Parliament.
“Who is best placed to decide on and implement reform will depend on the range of issues involved and how widely the change will affect people.”
“Reform to procedures and remedies is likely to have the highest payoff of all but is also the most complex and difficult.”
9. Sorting out muddles and complexity is likely to have the highest payoff in reform to statute and common law. While some needs to change the law arise from changes in the wider world or a reassessment of what is just or fair, most of the problems that require reform in statute or common law arise because of poorly thought-through legislation, poorly considered or expressed judicial reasoning or other unintended consequences A lot of good can be achieved by sorting out these problems with clarity and simplicity, such as in the Judicature Acts, the Goods Acts and the Theft Acts.
10 Reform to procedures and remedies is likely to have the highest payoff of all but is also the most complex and difficult. Our present legal system is usually fairly good at giving impartial and effective justice according to law where big issues and important principles are involved, and where the parties have access to good legal teams However, for less high-profile cases, our legal system can be slow, tortuous, wasteful and horrendously costly.
Getting to the bottom of conflicting claims will always involve cost, but a careful and thorough “process re-engineering” of the way our courts and tribunals operate can probably provide a greater benefit to the community than any black letter reform to statute or common law However, such re-engineering is also likely to be the most complex and difficult of any law reform, given how much change it requires in how so many people operate for so much of their professional lives within the current legal system.
THE AUSTRALIAN LAW REFORM COMMISSION
JANE HALL AND NATASHA PASAHIDIS
WHAT IS THE ALRC?
The Australian Law Reform Commission (‘ALRC’) is an independent statutory body established by the (aptly named) Australian Law Reform Commission Act 1996 (Cth). The ALRC’s President is the HonourableJusticeMordecaiBromberg
The ALRC provides evidence-based recommendations to change laws on topics referred to it by the Attorney-GeneralofAustralia Ourworkspansavarietyofinterestinglegalissues,fromcorporatecrime togenepatents,toanimportantpartoftheNativeTitleAct1993(Cth)(ourmostrecentreferral).
Ourcommissionersdedicatedtospecificinquiriesareoftenappointedfortheirexpertiseintherelevant area of law Some commissioners have a more general role, spanning multiple inquiries Similarly, our smallteamoflawreformersconsistsofsomewithspecialistexperienceandexpertiseinparticularareas oflaw,andotherswhohaveamorediverserangeofskills,experiences,andbackgrounds
THROUGH OUR WORK, WE SEEK TO:
Adopt new or more effective methods of administration and dispensation of justice
Bring the law into line with current conditions and needs
Simplify the law
Improve access to justice
Remove defects in the law
In making recommendations, we consider the rights and liberties of citizens, the potential impact on the costs of accessing and dispensing justice and, as far as practicable, consistency with Australia’s international obligations (for example, the Universal Declaration of Human Rights).
WHAT IS THE ALRC’S ROLE IN LAW REFORM?
Wecontributetobestpracticelawreforminvariousways:
Ourcontributionstoothergovernmentinquiriesandreports
OurroleineducatingandengagingtheAustraliancommunityinlawreform
Ourstaffhavebroadexpertisetoconsiderlegalissuesfromdiverseperspectives
Ourindependenceallowsustomakerecommendationsforreforms‘WithoutFearorFavour’
1
Ourabilitytoengagewiththebroaderlegalcommunity,includinglawreformbodiesinother jurisdictions
ThismighthaveyouthinkingtheALRCisthesolesourceoflawreforminAustralia.Thankfully,however, wearenottheonlypeopleonthejob.MostofAustralia’sstatesandterritorieshavetheirownlawreform commissions Additionally,governmentdepartments,parliamentarycommittees,jointministerialcouncils, statutory agencies (for example, the Australian Human Rights Commission and the Productivity Commission),publicinquiries,privateconsultants,academicsandothersallmakevitalcontributions
Ofcourse,lawreforminitstraditionalsensealsooccursthroughtheevolutionofprecedentestablished bythejudiciary
1KeenreaderswillnotethatthisisthetitleofourFinalReportonJudicialImpartialityandtheLawonBias(Report138)
HOW DO ALRC INQUIRIES WORK?
Atabasiclevel,allALRCinquirieshavetwokeyelements:consultationandreportwriting(whichincludes research,analysisandreporting).
The consultation component of our work consists of meeting with, and considering submissions from, stakeholders Wemayalsohostpubliceventslikewebinarstoengagewithlargeraudiences Additionally, wemayworkwithadvisorycommitteesorspecialistpanelstobounceideasaroundandseekfeedback Collaboratingwithstakeholdersoffersanexcellentopportunitytolistentocommunityjusticeneedsand identitykeyissues,providingqualityassurancetoourwork.Wewilloftenconsultthroughoutthevarious stagesofaninquiry,toensureweareontherighttrack.
Typically,aninquiryfollowsthebelowprocess:
Inquiries are finalised upon delivery of a final report to the Attorney-General, who tables the report in Parliament FinalreportscontainrecommendationsthatdescribethekeyreformsthattheALRCconsiders shouldbemadetolawsorlegalprocesses
ALRCrecommendationsarenotself-executing,meaningitisuptotheAustralianGovernment(orother relevantauthority)todeterminewhen,orwhether,toimplementourrecommendations However,ALRC recommendationshaveahighimplementationrate
WHAT HAS THE ALRC BEEN WORKING ON RECENTLY?
Afantasticquestion!Someofourcurrentandrecentinquiriesinclude:
Justice Responses to Sexual Violence Inquiry, which is looking at how different parts of the justice systemrespondtosexualviolence TheInquiryhasbroadtermsofreference,andcoverstopicssuchas courtprocesses,lawsaboutconsent,policeandprosecutorialpracticesandsupportservices Wehave also been asked to consider transformative and alternative approaches to criminal prosecutions, including restorative justice and compensation schemes. The aim of the inquiry is to promote and consider just outcomes for people who have experienced sexual violence, including minimising retraumatisation
ReviewoftheFutureActsRegime,whichwillbelookingattheoperationofthefutureactsregimeinthe Native Title Act 1993 (Cth). The Inquiry forms part of the Australian Government’s commitment in response to the Joint Standing Committee on Northern Australia’s ‘A Way Forward’ report on the destructionofFirstNationsculturalheritageatJuukanGorge CorporationsandFinancialServicesLegislationInquiry,whichlookedathowtosimplifyandrationalise thelegislativeframeworkforcorporationsandfinancialservices Judgeshavevariouslydescribedparts of that framework as ‘porridge’, ‘obscure and convoluted’, ‘shrouded in obfuscation’, and ‘like a maze’. One of the key reforms recommended by the ALRC was to restructure and redesign Chapter 7 of the CorporationsAct2001(Cth),andenactthe‘FinancialServicesLaw’asascheduletothatAct
ReligiousEducationalInstitutionsandAnti-DiscriminationLawsInquiry,whichlookedathowtoreform the Sex Discrimination Act 1984 (Cth), and other related anti-discrimination laws, to prevent discriminationagainststudentsandstaffbecauseofcertainprotectedattributes,whilemaintainingthe ability to build a community of faith. The ALRC made 11 recommendations that aim to maximise the realisationofhumanrights,andensurethatCommonwealthanti-discriminationlawsareconsistentwith Australia’sinternationallegalobligations
The law is often slow to respond to change, in comparison to the world at large Social and even mores can change swiftly, with the tide of public opinion turning on a dime. But the law, for good reason, is much more measured in its response.
But in my experience as a legal journalist at Lawyerly, covering the drama of litigation on a daily basis, the law is not always so slow. Specifically, in the area of class actions, the law is a moveable feast, constantly shifting and pivoting to account for the needs of litigants.
LAW REFORM ON THE RUN: A JOURNALIST’S VIEW OF CLASS ACTIONS
Class actions first landed on the shores of Australia in 1992, when Part IVA of the Federal Court Act was enacted, allowing one person to represent any number of people who suffered a common wrong, so long as there are more than seven
Since then, class actions have helped thousands of people access justice, from women who claimed Johnson & Johnson created pelvic mesh implants that left them with debilitating injuries, to Indigenous communities who allege their traditional lands were polluted by PFAS-laced firefighting foam
But a unique aspect of class actions is the high potential for conflicts. Solicitors will owe fiduciary duties to the lead plaintiffs, but they still have to consider all group members, who can number in the thousands and might have divergent interests There will also be the competing interests of litigation funders which cover the legal fees while the action is on foot, in return for a piece of the pie at settlement or judgment
The unique thing about class actions is that judges often respond in real time, or as close to it as you can get in law, to novel situations that arise on a case by case basis
CommonFundOrders
One recent example that demonstrates the adaptable nature of law reform in class actions is common fund orders, which allow litigation funders to take a percentage of a settlement or judgment as compensation, even if all group members have not signed a funding agreement
As the New Zealand High Court recently observed in Simons v ANZ Bank New Zealand Limited, Australian courts have “considerable experience” with common fund orders But a spanner was thrown in the works when the High Court delivered a controversial 2020 decision in Brewster v BMW, where a majority found that there was no power under a gap filling provision of the Federal Court Act to make such an order at an early stage of the proceeding.
Since then, the Federal Court, NSW Supreme Court and Victorian Supreme Court have continued to award common fund orders under a different provision than relied on in Brewster, but only at the point of settlement or a judgment
However, the High Court decision introduced considerable uncertainty, where even within the Federal Court, some judges considered that common fund orders are allowed where others found that they were never allowed.
After Justice David O’Callaghan ruled that common fund orders are never allowed in a class action against 7-Eleven, denying New York based funder Galactic a considerable payday, the issue was referred to the Full Court within two weeks in a separate class action against McDonald’s
SYDNEY BUREAU CHIEF AT LAWYERLY BY CINDY CAMERONNE
The Full Court handed down its carefully reasoned decision only eight months later, setting the record straight as far as the Federal Court was concerned, that common fund orders are allowed.
“So what that the litigation funder may have been self-interested in providing the funding?” Justice Jonathan Beach said
Contingencyfees
Another controversial issue that has recently come to a head is whether solicitors can earn contingency fees, taking a cut of any settlement or judgment in lieu, similar to a litigation funder
The Supreme Court of Victoria introduced legislation in 2020 setting out a clear scheme for solicitors to apply for contingency fees in what is known as a group costs order Group cost orders can be granted at an early stage of proceedings and have been shown to deliver better returns to group members, according to research by Monash University Professor Vince Morabito.
That legislation saw a flurry of class action filings in Victoria where the Federal Court has typically been the preferred forum for group proceedings
While Parliament has not opted to legislate a similar scheme federally, that did not deter entrepreneurial class action solicitors from raising that issue in the Federal Court
Shine Lawyers and Banton Group brought up the issue in a shareholder class action against Blue Sky Investments, and Justice Michael Lee referred the issue to the Full Court just weeks after common fund orders were confirmed
Earlier this month, just nine months after the question was referred, the Full Court confirmed that contingency fees are allowed in class actions, terming it a solicitor’s common fund order.
Despite hearing arguments that contingency fees could conflict with solicitors’ obligations to act with integrity and independence, the Full Court found that the history of class actions is “replete” with similar situations where solicitors have a high work in progress or act on a no win no fee basis.
“Wedonotconsideritisbeyondtheabilityofthecourttobealivetoidentifyinganyrelevantconflicts andensuringthattherightsofgroupmembershavebeenappropriatelyprotected,” said the Full Court.
Legislationvscommonlaw
While legislation can often help promote certainty in law reform, it can also be too blunt a tool to respond to nuanced issues, such as managing conflicts in class actions.
A clear example of this was when the Morrison government enacted reforms in 2020 requiring litigation funders to register as managed investment schemes and obtain Australian Financial Services Licences
Many judges railed against the scheme as soon as it was enacted, ultimately culminating in a 2022 decision that decimated the legal basis for the reforms as “plainly wrong”.
Justice Lee said in that Full Court judgment that it was an example of “placing a square peg in a round hole”.
“Any attempt to shoehorn a litigation funding scheme into the words of the statutory definition must confront the following: first, there were no contributions of money or money’s worth by the alleged scheme members, as that concept had been understood prior to Brookfield FC, ” the judge said
The Albanese government announced that it would roll back the regulations just three months later
“ WHILE LEGISLATION CAN OFTEN HELP PROMOTE CERTAINTY IN LAW REFORM, IT CAN ALSO BE TOO BLUNT A TOOL TO RESPOND TO NUANCED ISSUES, SUCH AS MANAGING CONFLICTS IN CLASS ACTIONS. ”
The law is a constantly changing beast, as it should be to adapt to changing times, but the area of class actions is one that seems to attract an especially pragmatic approach to law reform.
While most of the changes relate to the commercial aspects of class actions, that is critical in a space where business interests of all players are linked in a complex relationship with access to justice.
GIVING A VOICE TO THOSE WHO NEED IT MOST
ACONVERSATIONWITHJILLHENNESSY
Former Attorney-General and Minister for Health, Jill Hennessy, has been a leader in the law reform space Pioneering crucial changes including (but not limited to); voluntary assisted dying, safe access zones for women’s health services and the decriminalisation of public drunkenness, she has truly paved the way for effectiveandimpactfullegislation
Uponenteringintopolitics,Jillwasinstilledwithadeepawarenessofherabilitytoincitechange,ensuringthat shemadethemostoftheopportunitiesshewaspresentedwith
I was always deeply conscious of the fact that you don't know how long you have to actually achieve and implement reform [and] that time is finite. I was also very influenced by the wisdom of people like [former US President]BarackObama,whosaid‘ifyou'vegotpoliticalcapital,you'vealsogotanobligationtospendit’
Jill explains that there are two primary avenues for deciding on which areas of the law can be reformedelectoral mandates and opportunity For Jill, an opportunity is where the political timing is right to prioritise a certainarea
[There were some] reforms like voluntary assisted dying and getting recognition of transgender rights on Victorian birth certificates where I could see the stars aligning in order to get the legislation through - an opportunity where the community is talking about these issues, and I [could] weave together a very disparate groupofpoliticalforcestogetthesethroughtheparliament.
Noting the change in politics at this time, Jill considers how the digital world enabled further law reform and provided a bridge between politicians and the general community
We traditionally had a politics that was led by what was on the front page of the newspaper, [however] the digital world had erupted by this time, and the digital world meant that ordinary people had a platform to talk about issues that concern them, and weren't necessarily mediated through the interests of mainstream media That meant two things - people had a platform to hold governments accountable [and] politicians had a digital platform to be able to go [ask questionstothepublic].
Supportedbythisconnectiontothewidercommunity,andbelievingthatthereisastrongimportanceinsharing thestoriesofthosewhohavethestrongestneedforreform,Jillhadtheabilitytoprovideavoiceforthepublicin amannerwhichallowedhertogainsupportforproposedreforms
Whenever I would talk about things like gay conversion therapy, which traditionally had been a debate that was seen as religious rights versus individual rights, we enabled people to have platforms to come and talk about how damaging that was, to them individually, but also to the shame that then got attached to people who were atareallycriticalstageoftheirsexualidentification
Part of what I did was hold people accountable, flip those issues and say, if the status quo hurts people so cruelly and so indelibly, surely we have an obligation to do something better and to try and flip the debate around. Gay conversion therapy was an example of that … to say there is a real human life impacted by our failure to act and to make that as visceral and as real for the people that had not just the opportunity, but in myview,theobligationtotakeupthecauseforchange
Whilstdrivingagreatdealofreform,Jillfacedheavydebatesfromthosewhowerestronglyopposedtocertain proposals Whennavigatingthesedebatesanddiscussions,Jilltooktheseopportunitiestolearnandaccepttheir stances,furtherinformingherwork
I LEARNED ALONG THE WAY THAT ACCEPTING PEOPLE WHERE YOU FIND THEM IS ALMOST AS POWERFUL AS BEING ABLE TO PERSUADE PEOPLE.
I learned that some people I would never persuade, so I just had to accept their view and that I just disagreed withit.
Understanding what was driving their position on particular reform ended up being so much more powerful, because it meant I could then speak to their concerns I came to learn that sometimes listening to what sits behind the opposition made me a much more powerful advocate for the case for reform I didn't always get them over the line. But it meant that I got many things over the line, because I chose to listen before I chose to judge … Ultimately I believe the great opportunity in political law reform is going to meet the people where you find them and persuade them to come to where there is a better outcome and less inequality, less judgementalityandmoreopportunity Ithinkthisisthequestofthemodernlawreforminthepoliticaldomain
While parliament is responsible for law reform, as they are able to seek to change legislation at their own initiative,theyareofteninformedbyotherbodiessuchastheVictorianandAustralianLawReformCommissions.
The government can refer questions to the commission to help them scope out what the case for reform is, what different stakeholders might think of that reform, what sorts of technical changes might be required, and howthegovernmentmightsequencethat.
To have the Law Reform Commission [who are] able to go out to take public submissions to actually look at some of the really technical elements of law reform is very handy For example, the medicinal cannabis scheme in Victoria started as a Law Reform Commission Report because it was incredibly complicated and there was bothahealthandjusticecomponent.
Whilstabletofurtherexaminereform,thesebodieshaveoccasionallybeenquestionedregardingtheiruseasa politicaltactictoavoiddealingwithanissue Contrarytothis,Jillinsteadbelievesthattheyareawaytoensure anissuestaysontheagendaratherthansimplypushedtothesidealtogether
Sometimes referring something off to a committee or a Law Reform Commission is better than the issue going away completely It is a much better outcome for [an issue or concern] to go to a parliamentary committee, law reform body, or go to some other process to be considered, than the issue completely going off the politicalagenda
Often in politics, you're having to make decisions all the time about what is the priority of the day … The community expects [politicians] to focus on what the core pressing concern of the moment is, and so how do we do that and yet at the same time not avoid dealing with some of the more mid term and longer term pressingissues,andIthinkusinglawreformbodiesisagoodwaytokeepthingsontheagenda
The legislation that a government creates can also be impacted by judicial decisions, or common law reform Whilst this can be challenging for the government, it is part of an important separation of powers. However, consideringthatpoliticianshavebeenelectedbythepublic,thereisoftenastrugglebetweenwhoshould(and conversely,whoshouldnot)beabletoreformthelaw
Whether politicians like it or not, we have a separation of powers and the courts will do their work. I think the separation of powers is a very important part of our democratic process. As a politician, did I sometimes find that inconvenient? Yes, I did [However] in the life of a law reform, you're not always the exclusive captain of the ship, the courts will make decisions about your law and sometimes interpret it in ways that you hoped or anticipated that it would be And sometimes you'll be surprised, and the courts will apply the law in ways that you didn't anticipate it can be a bit of an awakening, when a court makes a different decision, [however] that isjustthewayofthesystemItendtoagreewith.Ithinkwe'vegotprettygoodchecksandbalances.
Finally,havingbeenresponsibleforseveralcrucialandpowerfulreforms,Jillcreditsherassisteddyingreformas theonesheismostproudoffromhertimeingovernment
[The assisted dying reform] has helped catalyse national reform, and it helped us talk about the most vulnerable parts of life, death, grief and pain in a way that the parliament has not done so before, and it helped drive that case for change I felt a very deep responsibility when I was trying to get that reform up and running, because I knew that if Victoria couldn't do it, we probably couldn't get it done anywhere else I had walked the journey with [those who were terminally ill] and I felt the pressure to make sure that I delivered for them, and for other people with terminal illnesses in the future. Had I not been able to deliver on that reform, I think that I probablywouldhavefeltlikeIhadabsolutelyletpeopledown.
Ifeelthatalotofpeople,includingmyself,havearighttofeelveryproudabout[getting]thatdone
I THINK IF WE ARE SO LUCKY TO HAVE THE PRIVILEGE OF A LEGAL EDUCATION, THEN WE HAVE ALSO GOT THE OBLIGATION TO MAKE SURE THAT WE USE IT TO GOOD AND NOBLE ENDS.
REPORTFINDS‘CLEARNEED’FORANAUSTRALIAN
HUMANRIGHTSACT.
WHATDIFFERENCEWOULDITMAKE?
DrBruceChen, Senior Lecturer at Deakin Law School
JulieDebeljak, Associate Professor at Monash University
PamelaTateAMKC, Adjunct Professor at Monash University
In late May, the Parliamentary Joint Committee on Human Rights reported on its Inquiry into Australia’s Human Rights Framework By majority, it recommended the federal government introduce an Australian Human Rights Act.
This represents a generational milestone to greatly improve human rights protections for Australia It remains to be seen whether the federal government will accept this main recommendation, butitisasignificantdevelopment.
Wherediditcomefrom?
The inquiry was prompted by an earlier Free and Equal Inquiry undertaken by the Australian Human Rights Commission. The first inquiry’s purpose was to conduct “a national conversation on human rights” and find out “what makes an effective system of human rights protection for 21st century Australia, and what steps Australia needs to take to get there”. This put the question of whether we should have an Australian Human Rights Act back onthepoliticalagenda
After several years of engagement with the public and stakeholders, the commission concluded that introducingsuchanactwas“stronglysupported”
It recommended a new national human rights framework with an Australian Human Rights Act as its“centrepiece”.
WhyanAustralianHumanRightsAct?
Human rights acts already exist in three states and territories – the Australian Capital Territory, Victoria and Queensland. There are many examples demonstrating how these acts protect human rights:
People with mental health illnesses are not forced to undergo electroconvulsive treatment, whentheyhavethecapacitytorefuse; Strip searches of prisoners are to be carried outinamannerthatrespectsdignity; Human rights need to be properly considered when mandating COVID-19 vaccinations for the policeforce;and Requests for independent investigations of alleged racist assaults by the police have to be properlyconsidered
It is time to build on these successes at the federal level
The commission’s report described the current federal protection of human rights as “piecemeal” and“patchy”.
Over the past decade, the government and parliament have been required to consider human rightsintheprocessofmakinglaws
However, this has not proven enough The commission proposed an Australian Human Rights Act to fill the gaps. It would mean human rights considerations will also influence the government whenitmakesdecisionsanddevelopspolicies
Every Australian deserves to have their human rights respected and protected, including at the federal level This applies to aged care residents, social security recipients (such as those affected by the Robodebt scandal), people with a disability, and Aboriginal and Torres Strait Islander peoples Access to human rights protection should not depend on where a person lives or which level of governmentcarriestheresponsibility
Whatdidtheparliamentaryinquiryreportsay?
The report observed a “clear need” for a comprehensive and enforceable rights-based framework – to ensure a “fair go” for all It agreed existingprotectionswere“piecemeal”
Submissions received overwhelmingly favoured (87%) an Australian Human Rights Act The committee was reassured by the ACT, Victoria and Queensland experiences It said these showed human rights legislation “could help embed a rights-respecting culture” and “has not led to overwhelminglitigation”
The report made 17 recommendations, including the enactment of an Australian Human Rights Act that broadly reflects the commission’s model. The act would protect rights based on those under international treaties to which Australia has agreed to be bound This includes the right to freedom of religion and a prohibition against advocacy of national,racialorreligioushatred.
The framing of cultural rights, and a right to a healthyenvironment,
would be informed by consulting with Aboriginal andTorresStraitIslanderpeoples.
The act would impose a positive duty on public authorities to comply with and properly consider human rights in their decision-making and actions. They could still impose limits on human rights where parliament permits or where the limits are reasonableandjustifiable
The positive duty would be directly enforceable by a federal court, where conciliation is not appropriate Courts would also need to interpret statutes so as not to breach human rights, so far as isreasonablypossible
The report recommended strengthening scrutiny by government and parliament of policy and legislation for compatibility with human rights It also recommended extensive human rights education in schools and the broader community, in part to drive the cultural changes needed to fully realiserights.
By contrast, a minority of the committee recommended an Australian Human Rights Act not beintroduced.
Wheretonext?
The recommendations are now with the federal government to consider and seek further advice The report helpfully provides an example of what a human rights bill might look like, to promote understandinganddiscussion
It is up to the government to decide whether to accept the recommendations and, if so, for parliamenttovote.
Securing an Australian Human Rights Act would demonstrate that Australia is a modern democratic nation that values fairness, transparency and accountability.
ThisarticleisrepublishedfromTheConversationunderaCreativeCommonslicense. Theoriginalarticleisavailableviathislink: https://theconversationcom/report-finds-clear-need-for-an-australian-human-rights-act-what-difference-would-it-make-231376
LawsWithout Implementation and Enforcement:
BrokenPromisesand DemocraticallyCorrosive
Royal Commissions have revealed profound harm within our social care systems, from Robo-debt victims to abused aged care residents and mistreated mental health consumers These disclosures erode trust in social care and welfare institutions Governments often respond with new legislation, while failing to address the sociopolitical roots of harms, the implementation capacity of governments, and proper oversight from regulators As such, these reforms are doomed to fail, further undermining public trust Law reform, as this article argues, requires more than the mere passage of legislation.
Social care and welfare systems as causes of harm
A wave of state and Commonwealth inquiries have highlighted an unnerving contradiction:
SIMON KATTERL MENTAL HEALTH ADVOCATE AND CONSULTANT
Governments often respond with new legislation, while failing to address the sociopolitical roots of harms, the implementation capacity of governments, and proper oversight from regulators.
our social care and welfare systems often harm rather than help. The Robodebt Royal Commission detailed the harms caused by punitive government policy on Australians in need of support. Similarly, the Disability Royal Commission highlighted systematic violence, abuse, neglect and exploitation of people with disabilities across the nation . Preceding that report was the Aged Care Royal Commission, that was launched following numerous Parliamentary inquiries as well as public reports detailing abuse. And similarly, a Royal Commission handed down its report in Victoria, detailing a mental health system that routinely violated human rights. Government responses to such harms are often swift and short-term focused,grabbingatasolutionthatremainsreadyat-hand:newlegislation.
Politicalsolutionsturntolawreform
Facedwithpoliticalcrisesandsystemicharms,governmentsoftenrushtopassnewlegislation.
1SimonKatterlConsulting,Naarm(Melbourne),VIC
2 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities, Final Report: Volume 5: Governing for Inclusion(CommonwealthofAustralia,September2023)
3 Yvette Maker and Bernadette McSherry, ‘Regulating Restraint Use in Mental Health and Aged Care Settings: Lessons from the Oakden Scandal’(2019)44(1)AlternativeLawJournal29
4 State of Victoria, Royal Commission into Victoria’s Mental Health System, Final Report, Summary and Recommendations (No ParliamentaryPaperno 202,Session2018-2021(document1of6),2021)4
The Royal Commission into Violence Abuse Neglect and Exploitation of People with Disabilities recommended a Disability Rights Act . Aged care legislation with a human rights focus has been promised to address similar abuses against the elderly
In mental health, the Victorian Government has passed the Mental Health and Wellbeing Act 2022 (Vic), with minor changes to substantive rights for mental health consumers Despite new legislative changes or protections, ongoing issues remain in aged care , disability settings and new anti-corruption commissions responding to the Robo-debt saga The same is true of Victoria’s mental health system
Much of Victoria’s mental health system operates unlawfully In 2021, evidence revealed the Victorian Government and public mental health services have not integrated the Charter of Human Rights and Responsibilities Act 2006 (Vic) into their policies and systems management This oversight leads to frequent breaches of mental health legislation, making human rights seem "illusory" Regulatory bodies, such as the former Mental Health Complaints Commission, failed to issue a single compliance notice out of 16,000 complaints The new Mental Health and Wellbeing Commission, established post-Royal Commission, also shows no improvement, as it opposed releasing its recommendations to the public . Such failures challenge our belief in the rule of law and in the public’s trust in government’s capacity to enable reform
Enhancingtheconditionsforreallawreform
Effective mental health law reform hinges on aligning social and legal licenses, ensuring robust implementation, and maintaining regulatory oversight This article critiques these elements within Victoria's current system
Aligning the social and legal licence
In addressing social injustice, law reformers would do well to address the legal licence and social licence. Whereas the legal licence refers to traditional and well-known legal approvals, permits and standards required to undertake certain activities, the social licence refers to a form of social acceptance or approval of those activities, dependent in large part on trust-building with the community
5RoyalCommissionintoViolence,Abuse,NeglectandExploitationofPeoplewithDisability,ExecutiveSummary:OurVisionforan InclusiveAustraliaandRecommendations(RoyalCommissionintotheViolence,Abuse,NeglectandExploitationofPeoplewith Disability,September2023),193
6AustralianGovernmentDepartmentofHealthandAgedCare,‘ARights-BasedNewAgedCareAct’(text,14June2024)
7ChristopherMaylea,‘DoesNewMentalHealthLegislationinVictoria,Australia,AdvanceHumanRights?’(2023)25(1)Healthand HumanRights149
8HenryBelot,‘FiveStarsAwardedtoAustralianAgedCareHomesFailingSafetyandCareStandards’,TheGuardian(online,18January 2024)
9AnneConnollyandNinaKopel,‘ReviewDetailsHowNDISCommissionFailedtoActoverControversialAutismProgram-ABCNews’, ABCNews(online,10April2024)
10SarahBasfordCanales,‘WatchdogtoExamineCorruptionCommission’sRobodebtDecisionafterComplaintsofAlleged“Corrupt Conduct”’,TheGuardian(online,13June2024)
11SimonKatterlandChrisMaylea,‘KeepingHumanRightsinMind:EmbeddingtheVictorianCharterofHumanRightsintothePublic MentalHealthSystem’(2021)27(1)AustralianJournalofHumanRights58
12ChrisMayleaetal,‘Consumers’ExperiencesofRights-BasedMentalHealthLaws:LessonsfromVictoria,Australia’(2021)78 InternationalJournalofLawandPsychiatry
13KieranRooney,‘Morethan16,000MentalHealthComplaints,butWatchdogyettoBite’,TheAge(7December2023);SimonKatterl andSharonFriel,‘RegulatingRights:DevelopingaHumanRightsandMentalHealthRegulatoryFramework’inKayWilson,YvetteMaker andPiersGooding(eds),TheFutureofMentalHealth,DisabilityandCriminalLaw(Routledge,2023)267;SimonKatterl,‘Resolving MentalHealthTreatmentDisputesintheShadowoftheLaw:TheVictorianExperience’(2023)2023(September)AustralianDispute ResolutionBulletin20
14AdesholaOre,‘Victoria’sMentalHealthWatchdogCriticisedafterFightingReleaseofSecretRecommendations|Victoria|The Guardian’,GuardianAustralia(online,12July2023)
15LucyMRobinson,JoeFardinandFabioBoschetti,‘ClarifyingtheCurrentRoleofaSocialLicenceinItsLegalandPoliticalContext:An ExaminationofMininginWesternAustralia’(2020)67ResourcesPolicy101649.
In some respects, this can relate to ‘contractarianism’ (referring commonly to the “social contract”) which refers to a long tradition of political thought that justifies certain kinds of moral or political rule . This is crucial as in some cases a social licence might be a significant determinant on whether organisations comply with their legal obligations (the legal licence) Important for those seeking to address harms in social care and welfare systems is to grapple with the social licence to operate, and whether it currently limits or permits such harms.
Renegotiating the social licence to operate, or the “social contract”, may be a crucial to addressing harms in the mental health system Indeed, mental health laws and services appear to still be confused between underlying objectives to manage risk, provide high-quality treatment, protect rights of consumers, or provide ‘cover’ for underfunded mental health systems . Part of this confusion reflects a disorganised set of interests that influence the purpose of mental health services and laws. Renegotiating this social licence on terms more favourable to human rights is crucial
Law requires a government capable of implementation
Many laws, including human rights laws, require a capable public sector to implement them There are several factors that influence this
First, a well-resourced, capable and independent public sector provides the foundation for strong advice to government By contrast, an over-reliance on the external consultancies has reflected and reinforced a diminished public sector incapable to deliver on core government functions.
Second, a strong human rights culture among public servants mean they can avoid unintended human rights issues and make better decisions that uphold people’s rights.
Third, strong engagement with, and leadership of, people with lived experience of social policy issues is crucial.
Fourth, governments engaging in law and human rights reform must develop clear accountabilities, milestones, risks engagement strategies are key.
22
16GeertDemuijnckandBjörnFasterling,‘TheSocialLicensetoOperate’(2016)136JournalofBusinessEthics675
17NeilGunningham,‘Compliance,Enforcement,andRegulatoryExcellence’[2017](124)RegNetResearchPaper6.
18ChrisMaylea,‘Victoria,Australia,IsGettingaNewMentalHealthandWellbeingBill’[2022]JournalofBioethicalInquiry1
19 For a critical account of the current status of the public sector on these measures in Victoria, see: Victorian Ombudsman, Alleged PoliticisationofthePublicSector:InvestigationofaMatterReferredfromtheLegislativeCouncilon9February2022-Part2(2023)
20 Michael Brett Young, ‘From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006’ [2015]Victoria:StateofVictoria19–20
21 State of Victoria, Royal Commission into Victoria’s Mental Health System, Volume 4: The Fundamentals for Enduring Reform (No ParliamentaryPaperno 202,Session2018-2021(document5of6),StateofVictoria,2021)46 22Ibid
In Victoria’s rollout of a new Mental Health and Wellbeing Act 2022 (Vic), these issues remain. Replacing the Mental Health Act 2014 (Vic), the process has been marred by a failure to adequately inform mental health clinicians about their forthcoming obligations The only state-funded mental health training, provided only weeks ahead of the new Act, were brief online modules and brief orientation workshops
Choosing between living and zombie laws: effective regulation
The absence of discussions during many law school lectures can lead students to draw an inaccurate conclusion: laws are self-executing They require regulatory oversight from independent agencies Such agencies are often tasked with giving effect to laws through a range of regulatory methods, including advice and persuasion , performance information sharing , complaints handling regarding service quality , and enforcement actions Importantly, regulatory oversight agencies must be credible to achieve long-term compliance
Victoria's mental health system has failed in regulatory oversight A review found that the Mental Health Tribunal's decisions do not reflect human rights and legislative principles . The Chief Psychiatrist, responsible for promoting human rights, has consistently failed to show leadership, especially as it related to human rights in youth mental health Despite widespread human rights violations and 16,000 complaints, the Mental Health and Wellbeing Commission has never issued a compliance notice
Conclusion
Laws may reside in statutes and judicial decisions, but they live and die in sociopolitical environments A short-term political solution, governments often turn to narrow approaches to law reform, without making adequate investments in community engagement, public sector capability, and regulatory oversight.
Those in law looking to influence social justice should not restrict themselves to the parliament, statute or courts; they must engage with and shape the contexts and institutions where the law does, or does not, do its work.
23 Adeshola Ore, ‘Mental Health Insiders Issue Warning over Victoria’s “Vague” New Chemical Restraint Laws’, The Guardian (online, 31 August2023)
24Gunningham(n17)
25 See as it relates to gender equality: Kate Farhall and Niki Vincent, ‘Gender Inequality Laid Bare: Transparency as a Tool to Drive Progress,EthicalLeadershipandGoodGovernanceinVictoria’(2020)37LawContext:ASocio-LegalJ 125
26Katterl(n13);KatterlandFriel(n13)
27SimonKatterl,‘RegulatoryOversight,MentalHealthandHumanRights’(2021)46(2)AlternativeLawJournal149
28Gunningham(n17)
29CastanCentreforHumanRightsLaw,AnalysisofMentalHealthTribunalEngagementwithHumanRights(CastanCentreforHuman RightsLaw,November2021).
30VictorianAuditorGeneral’sOffice,ChildandYouthMentalHealth:June2019(2018)
31 Katterl et al, Not before Time: Lived Experience-Led Justice and Repair (Advice to the Victorian Mental Health Minister) (January 2023)
32Rooney(n13)
AN UNMET NEED: HUMAN TRAFFICKING SURVIVORS IN VICTORIA’S CRIMINAL JUSTICE SYSTEM
Australia has a Modern Slavery Act 2018 (Cth) (the Act) that regulates the supply chains of large corporate enterprises, with a view to eradicating modern slavery conditions in those supply chains In practice, the Act primarily focuses upon the working conditions attached to these supply chains, with those affected generally located outside of Australia. However, there is an unmet need within the Australian criminal justice system for the protection of trafficked persons who commit criminal offences connected to their victimisation In this article, we refer to such persons as ‘victim-perpetrators’
Last year, the International Bar Association (IBA) published a report on Human Trafficking and the Rights of Trafficked Persons (IBA, 2023) (IBA report), which provided an exploratory analysis on the application of the non-punishment principle (NPP). The NPP is an international legal principle with three purposes: to prosecute perpetrators; to prevent human trafficking; and to protect trafficked persons This includes trafficked persons who commit criminal offences connected to, or because of, their victim status (see ICAT, 2020) The NPP flows from the 2001 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (referred to as the PalermoProtocol).
Modern Slavery is a term which encompasses human trafficking whereby the purpose is to exploit people by a range of acts and means including forced labour, debt bondage using deception and coercive control This might include those trafficked to commit crimes across borders or within Australia
The NPP principally functions to limit or neutralise criminal responsibility through application of nonprosecution policies and targeted defences Of relevance to this article, the IBA report found the following:
Barriers to the application of the non-punishment principle were common across several or all jurisdictions studied These include lack of awareness and training on the application of the principle; systemic issues of identification of trafficked persons; the presence of procedural requirements that act as barriers to non-punishment; and the thresholds and limitations placed onstatutoryprotections(IBA,2023:6).
In addition, the report by the International Bar Association (IBA) with the British Institute of International and Comparative law (BIICL) identify two approaches to defences for trafficked persons who commit crime: the ‘causation’ approach, which accepts that the criminal offence was caused by the trafficker exploiting the victim to commit such an offence; and the ‘compulsion’ approach, which accepts that there is evidence of the victim being compelled by a trafficker to commit a criminal offence. Each has its challenges, but the IBA firmly come down in favour of the causation approach which recognises much more clearly the culpability of the trafficker and the loss of agency for the victim
BY DR FELICITY GERRY KC, CATE READ AND GABRIELA FRANICH
As a signatory to the Palermo Protocol, Australia has begun to incorporate the NPP into its criminal justice system through a National Action Plan to Combat Modern Slavery, a senate inquiry into establishing a Modern Slavery Act (see esp, recommendation 22), and a targeted review of divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) (see esp, finding 22) However, Australia lags behind other countries, as it has not yet established defences for trafficking victims who commit criminal offences through, for example, an abuse of vulnerability.
This is a cause for concern as research shows that the dominant strategy in human trafficking is silence Accordingly, it is highly likely that Australia has a hidden population of trafficked persons who have been charged with or convicted of crimes committed in connection with their victim status. If the NPP has not been absorbed into Australian law, then how are we to properly protect victim-perpetrators? A related issue which we consider in the remainder of this article lies with the difficulty of identifying this hidden population
In Australia, sections 270 and 271 of the Commonwealth Criminal Code provide for the prosecution of perpetrators of human trafficking. However, despite having a National Action Plan to Combat Modern Slavery, the current policy and criminal defence mechanisms available to protect victim-perpetrators, both federally and at state level, are not sufficient Without doubt, there are people in prison who have been trafficked to commit crime, but whose status as victim-perpetrators has yet to be identified This means that Australia is failing in its international obligations to protect victims of human trafficking, known more broadly in Australia as ‘modern slavery’. Research conducted by UNODC in 2020 suggests that women and girls are particularly affected, and vulnerable to being coerced into offending You could say that there is a lacuna in the law, and in practice, when it comes to the protection of victimperpetrators In Australia, our view is that there is an unmet need requiring immediate action to identify and support people who fall into this category in their engagement with the criminal justice system
One avenue of investigation for identifying victim-perpetrators is to consider how people end up in prison; i e , their pathway into offending For example, a significant proportion of women in Australia’s prisons face what Bartels, Easteal and Westgate term, ‘the triumvirate’ of victimisation, substance use, and mental illness (2020: 206 See also, Broidy, Payne and Piquero 2018) Victorian research on women’s incarceration indicates a high instance of domestic violence victimisation correlated with offending (Russell, Carlton and Tyson, 2021; Victorian Legal Services Board, 2020; Walker, Sutherland and Millsteed, 2019) Further, many women in contact with the criminal justice system have been arrested because law enforcement have misidentified them as perpetrators of violence (Dichter, 2013; Reeves, 2023; Russell, Zhou and Franich, 2022) Despite the wealth of literature identifying links between domestic violence, coercive control, and women being arrested and imprisoned, there is limited Australian research examining these links as ‘coerced criminality’ or ‘forced criminality’. Whilst the current body of research is of considerable value, further research is required to consider how these links might be functioning as a form of domestic modern slavery
We are currently engaged in research directed at reconceptualising modern slavery in a domestic context, and identifying the role that it plays in forging victim-perpetrators Understanding the origins of victim-perpetrators is critical for policy and law reform recommendations directed at plugging the protection gap in this area Our project is focused on understanding the experiences of women modern slavery survivors in the Victorian criminal justice system.
As part of the project, we are presenting a series of workshops to stakeholders, and reflecting upon their insights as to how they might identify clients who may have been trafficked, and how best to guide those clients through the legal process, and into protection Stakeholders include practitioners who work at survivor-focused services (e.g., supporting women in prison), as well as community lawyers and barristers.
3
Our initial findings are very interesting:
1. There is limited understanding amongst practitioners and service providers of modern slavery in the criminal justice context, including policy makers, lawyers, and the judiciary.
2. The understanding of practitioners and service providers improves when we use the term ‘forced criminality’ and explain that ‘forced’ – conceived broadly – includes coercive control and the abuse of vulnerability.
3. Service providers have experience, either past or current, of engaging and supporting potentially trafficked women. They recognise the absence of pathways to protection, and point to the lack of understanding of ‘domestic’ trafficking in persons.
4. The absence of understanding in relation to the NPP concepts and principles of prevention, protection, and non-prosecution – and how these elements interact – negatively affects women in criminal justice, so that prosecution, imprisonment, and deportation are more likely outcomes
5 Failure to understand these concepts and principles means that the development of mechanisms to protect victim-perpetrators is stunted For example, lawyers with limited or no knowledge of the relevant concepts will not be able to identify clients who fall into this category Even if lawyers are able to identify such clients, they may struggle to use this knowledge to best assist their clients (e g , in their negotiations with prosecutors and/or their submissions to judges who are unfamiliar with or dismissive of the NPP principle)
A key preliminary finding of our research to date is that there are gaps – both conceptual and practical –to be addressed. The absence of accessible language, and the lack of understanding by courts and policy makers, means that previous recommendations to tackle this issue have not been taken up Attempts to address this issue are reflected in recommendation 22 of the 2018 Hidden in Plain Sight report, and in finding 22 of the 2023 targeted review of the Commonwealth Criminal Code, with each urging consideration of non-punishment; however, meaningful legal frameworks for protection remain absent. We hope that our research will contribute to legal and policy change, through greater understanding of the experiences of women modern slavery survivors, and lead to improvements in the criminal justice system that recognise and accommodate this unmet need
3Wearealsohopingtointerviewsurvivors,subjecttoethicsapproval,throughcasestudyreferralsand/orwithwomeninprison
Attorney-General’sDepartment,AustralianGovernment,NationalActionPlantoCombatModernSlavery 2020–25(CommonwealthofAustralia,December2020)
Attorney-General’sDepartment,AustralianGovernment,TargetedReviewofModernSlaveryOffencesin Divisions270and270oftheCriminalCodeAct1995(Cth)(FindingsReport)(CommonwealthofAustralia, 2023)
Bartels,Lorana,PatriciaEastealandRobynWestgate,‘UnderstandingWomen’sImprisonmentinAustralia’ (2020)30(3)WomenandCriminalJustice204
Broidy, Lisa, Jason Payne and Alex R Piquero, ‘Making Sense of Heterogeneity in the Influence of ChildhoodAbuse,MentalHealth,andDrugUseonWomen’sOffendingPathways’(2018)45(10)Criminal JusticeandBehaviour1565
CriminalCodeAct1995(Cth)(CommonwealthCriminalCode)
Dichter, Melissa E, ‘“They Arrested Me – And I Was the Victim”: Women’s Experience with Getting ArrestedintheContextofDomesticViolence’(2012)23(2)WomenandCriminalJustice81
Gauci,Jean-PierreandNoemiMagugliani,HumanTraffickingandtheRightsofTraffickedPersons:An ExploratoryAnalysisontheApplicationoftheNon-PunishmentPrinciple(InternationalBarAssociation/ BritishInstituteofInternationalandComparativeLaw,2023)(IBAreport)
Gerry,Felicity,SivaVallabhaneniandPeterShaw,‘GameTheoryandtheHumanTraffickingDilemma’ (2021)7(2)JournalofHumanTrafficking168
Inter-AgencyCoordinationGroupagainstTraffickinginPersons(ICAT),‘Non-PunishmentofVictimsof Trafficking’(IssueBrief,08/2020)
JointStandingCommitteeonForeignAffairs,DefenceandTrade,HiddeninPlainSight:AnInquiryinto EstablishingaModernSlaveryActinAustralia(CommonwealthofAustralia,December2017)
ModernSlaveryAct2018(Cth)
Reeves,Ellen,‘“I’mNotatAllProtectedandIThinkOtherWomenShouldKnowThat,ThatThey’reNot Protected Either”: Victim-Survivors’ Experiences of “Misidentification” in Victoria’s Family Violence System’(2021)10(4)InternationalJournalforCrime,JusticeandSocialDemocracy39
Russell,EmmaK,BreeCarltonandDanielleTyson,‘“It’saGenderedIssue,100PerCent”:HowToughBail LawsEntrenchGenderandRacialInequalityandSocialDisadvantage(2021)11(3)InternationalJournal forCrime,JusticeandSocialDemocracy107
Russell,EmmaK,HuiZhouandGabrielaFranich,GenderedInjustice:ThePolicingandCriminalisationof Victim-SurvivorsofDomesticandFamilyViolence(FitzroyLegalService,2022)
UnitedNationsConventionagainstTransnationalOrganizedCrime,GARes55/25,UNDocA/RES/55/25 (8 January 2001, adopted 15 November 2000) annex II (‘Protocol to Prevent, Suppress and Punish TraffickinginPersonsEspeciallyWomenandChildren,supplementingtheUnitedNationsConvention againstTransnationalOrganizedCrime’)(PalermoProtocol)
United Nations Office on Drugs and Crimes (UNODC), Female Victims of Trafficking for Sexual ExploitationasDefendants:ACaseLawAnalysis(December2020)
VictorianLegalServicesBoard(VLSB),KeepingWomenOutoftheJusticeSystem:ReportNo2(August 2020)
Walker,Samantha,PaulSutherlandandMelanieMillsteed,CharacteristicsandOffendingofWomenin PrisoninVictoria,2012-2018(CrimeStatisticsAgency,November2019)
LookingBeyondanUgly Statute: NationalEnvironmentalLaw Reform
As a law student, it can be difficult to connect with the statute book compared with the stories that colour caselaw There are no Lord Justice Dennings or Justice Kirbys at the Office of Parliamentary Counsel in Canberra (the department responsible for drafting legislation) And yet, a whole web of human and non-human sacrifice, toil and passion forms around statutes
Reform, unlike developments in the caselaw, can reconfigure such a web overnight.
Australia’s national environmental law (the Environment Protection and Biodiversity Conservation Act 1999 – ‘the Act’) commenced when I was in primary school I have spent my entire career – half the life of that statute – thinking about a handful of its provisions and seeing their effect in the real world.
As I write, several bills sit before Parliament to establish a new independent Environment Protection Agency (EPA) Some of my pet provisions may change and some may not I am excited and terrified (feelings I am certain would not be evoked in most law students engaging with the statute for the first time).
Section142B–Breachesofconditionsinenvironmentalapprovals
Early in my career, I worked for the department which administers the Act I was an authorised officer, which means I was empowered to investigate environmental crimes and offences.
When developers, mining companies for example, are planning a new development and it is likely to significantly impact on a protected matter, bulldozing habitat for koalas for example, it needs approval from the Minister
Approvals usually come with conditions for example, the mining company can proceed with the mine but only on the condition that it does not bulldoze trees in a sensitive area.
ANNICA SCHOO
JD STUDENT AT THE UNIVERSITY OF MELBOURNE AND LEAD ENVIRONMENTAL INVESTIGATOR AT THE AUSTRALIAN CONSERVATION FOUNDATION
If an approval holder breaches a condition in an approval, for example it bulldozes trees in area it was meant to avoid, it is an offence My job was to investigate and if appropriate recommend further action
Breaching a condition in an approval is an offence that can, in the right circumstances, bring about penalties of up to $198,000 for a company. More often though, because it is easier to prove a strict liability offence and resources are limited, section 142B offences are pursued.
Such offences attract a maximum penalty of $99,000 for a company For a mining company turning around millions or billions of dollars a year, this is a slap on the wrist If breaching an approval means mining more coal or commencing a project quicker, you can imagine sometimes companies are willing to cop the fine.
It gets worse Under the Act, such a penalty has never been sought by the department in the Court Taking legal action against powerful and connected companies requires significant resources and a strong will from the boss (who is a politician). Instead, one of the most common responses to a breach of a condition is an infringement notice under section 497.
Section497–Infringementnotices
And guess what? Infringement notices are quicker, cheaper and easier to issue, they do not require the company to admit guilt and they can be no more than $19,800. The slap on the wrist becomes a slap on the pinky finger
In my role at the Australian Conservation Foundation (ACF), I now work on the other side of the Act, advocating for reform My colleagues have fought hard for provisions and practices like these to change – especially for an independent EPA to be established that is not governed by the will of a politician, is fully resourced to do the hard things and has stronger penalties to deter environmental harm.
...a whole web of human and nonhuman sacrifice, toil and passion forms around statutes.
The current bills before Parliament go some of the way toward establishing an independent EPA and resources are being dripped into the department However, some changes have been kicked down the road The current bills increase the penalty for those parts of the Act under which breaches are rarely prosecuted. The infringement notice amount remains the same.
If the current bills pass, a staff member of the new EPA would be fined three times more than a noncompliant mining company, simply for talking about their work to the wrong person
Section18–Significantlyimpactingathreatenedspecieswithoutapproval
As I mentioned, developers proposing to do something which will significantly impact a protected matter require approval Sometimes companies charge ahead and harm the environment without approval Section 18 creates an offence for charging ahead without approval and significantly impacting threatened species.
The maximum penalty for such an offence is over $16 million for a company One of the bills before Parliament adds a provision which allows the Court to take the annual turnover of a company, or the benefit derived from the offence, into account and accordingly award an even higher penalty
It is an amazing change, however, again, it is not the full story. The department has only prosecuted such offences a handful of times in the 24-year history of the Act, and the maximum penalty has never been awarded by the Court From both sides of the fence over the years, I have come face to face with beautiful, rare creatures in their millenia-old homes, and then watched as the bulldozers roll in and nothing is done about it by authorised officers
Many who destroy habitat are unaware of the Act, many know they are unlikely to get caught, and some are politically too difficult to take to task
Reform, unlike developments in the caselaw, can reconfigure such a web overnight.
Advocates for the environment, ACF included, are asking for the new EPA to have a clearly legislated mandate, free from interference, and for it to be compelled to respond to requests to order habitat destruction to stop.
Wordsarepowerfulintheworldofadvocates,regulators,koalasandlawstudents
For a request to issue an environmental protection order, something as inane as the word “must” instead of “may” in a provision can make all the difference for a koala sitting in a tree on the wrong property, when the bulldozers are fired up and ready to go.
And something as small as a number changing in the “penalties” note at the end of a provision can be the difference between a company taking the risk and wiping out big old trees or deciding against it
More than a decade of my working life has been attached to these provisions – and they are only little nodes in a huge web of provisions, people and creatures who care about the Act and who will feel reform on the ground
The Minister received around 30,000 submissions in her consultation on these proposed changes They were not all voices speaking on behalf of the creatures in Australia that do not have a voice – you can imagine the task of pleasing everyone in a law reform process is a difficult one.
If you want to get involved and be a voice for nature, get in touch with the Australian Conservation Foundation: https://www.acf.org.au/get-involved
If you want to get involved and be a voice for nature, get in touch with the Australian Conservation Foundation: https://www.acf.org.au/get-involved
Most of the law shaping criminal justice comes from statute, where each amendment or new bill is subject to debate and review However, the importance of case law as a form of law in need of scrutiny and challenge must not be overlooked.
Influencing precedent and court practice is the role of the advocate Advocacy aimed at educating the court, challenging established wisdom, and normalising new procedures can have a significant impact on an individual’s experience of justice, the outcomes they are likely to receive, and future findings of the court. Advocacy intended to improve the
delivery of criminal justice is something that a lawyer must consider in every jurisdiction, including the Magistrates’ Court
Improving outcomes for trans and gender diverse accused
In recent years, a major focus of my practice has been working to improve outcomes for trans and gender diverse (TGD) people in the criminal legal system (CLS) In 2022, I co-authored an article based on survey results from trans people with experience of the CLS It showed that prejudice and discrimination amongst trans accused ran high, with consistent complaints ranging from mis-gendering and deadnaming in court documents, to physical and sexual violence in custody
Because I act for a significant number of trans accused, I use opportunities before the courts to repair harmful practices that stem from bias or ignorance Transwomen in particular suffer from longstanding misconceptions that their identity is a symptom of mental illness or indicates social or sexual deviance This is obviously untrue, but much work needs to be done to correct the bias
Advocating in the early stages of proceedings to change the name of the accused on the court record can have a significant impact on a person’s experience going forward The name on the court record is a matter of practice, not law Even if a trans person has not legally changed their name, a matter should always be called in court in a way that reflects a person’s real identity, not their deadname. This will only be changed, though, if a lawyer is prepared to make that argument in Court, even to a conservative Magistrate or in the face of prosecution opposition
Advocacy as Law Reform
Isabelle Skaburskis Partner, Doogue + George Lawyers
Misgendering an accused in a court summary is equally unacceptable It suggests that recognising someone’s gender identity is an indulgence, not a necessity. It delegitimises trans identity, and thereby maintains a connotation of deviance.
If prosecutors persistently misgender a client despite requests to change their use of pronouns, then arguments ought to be made in court at the time of a plea that this constitutes “extra-curial punishment” and sentence should be mitigated accordingly. Such arguments will discourage prosecutors from creating this opportunity for mitigation in the future.
1 Matthew Mitchell et al, “Criminalising Gender Diversity: Trans and Gender Diverse People’s Experiences with the Victorian Criminal Legal System” (2022) 11(4) International Journal for Crime, Justice and Social Democracy 99
Deadnaming or misgendering an offender before the court erases them, and that is antithetical to how our system of individualised justice is meant to work. The only person who can correct these practices is the person’s lawyer
Advocacy aimed at adapting the application of established legal principles is equally important Running a plea can sometimes be a formulaic exercise A court will have certain expectations of what kind of childhood experiences, for example, will support a submission of reduced moral culpability due to childhood deprivation and abuse Equally, they will expect to see certain kinds of evidence of harm incurred whilst on remand to support a submission that they face additional hardship in custody and therefore their sentence must be reduced
It is not generally understood that the harm incurred by a trans child growing up amidst familial and systemic discrimination creates its own pathways to criminalisation It is not generally understood that a trans person in prison will face extraordinary danger from prison policies (solitary confinement), and other prisoners or guards (physical and sexual violence)
In a recent plea, I made these novel submissions I provided a detailed account of the client’s experiences growing up, highlighting her many experiences of abuse by discrimination and neglect I recounted details of what it feels like to come to understand yourself with only the words “faggot” and “cross-dresser” to guide you, internalising their vicious connotations; and to consistently fall short of other people’s expectations of what you should be like
Evidence from an experienced forensic psychiatrist was called to explain how this kind of treatment impacts a person’s development and personality
He clarified that any mental illness or personality disturbance is not a result of being trans, but a result of the abuse so commonly experienced by trans people.
Further, we called evidence from a social worker who has supported virtually every trans prisoner in Victoria since 2018. He provided cogent and disturbing evidence of what a transwoman in prison will almost certainly experience
Judgment will have been handed down in this case by the time this article is published. We are hoping that the evidence before the court, which also included social context evidence from published reports and articles, will invite the court to recognise the adversity faced by a trans accused, and how that is relevant to the sentencing exercise. Such precedent will also serve to inform lawyers about the kind of information they ought to be seeking from their trans clients, and arguments they should be running on their behalf, thereby increasing the quality of representation for trans accused overall
Conclusion
Positive changes in the law can be made at every stage of proceedings The next frontier regarding recognition of the unique issues affecting trans accused will be binding authority from the Court of Appeal In order to get that authority, though, a case must be run thoroughly and strategically in the Court below That can only be done if the lawyers are aware of the issues to be raised, and have proper evidence to support their submissions. Each case must be run as an invitation to the court to develop the law in a way that reflects society’s evolving awareness of trans and gender diverse identities
