Et Cetera 2024/2

ISSUE TWO 2024

T E E R C A T E

REFORMING THE LAW

ISSUE TWO 2024

ET CETERA 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

|

Jordan Cook

Editor

|

Madeleine French

Editor

|

Ruby Evans

Editor

|

Priyanka Sharma

Design

|

Ruby Evans

Design

|

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

i

ABOUT THE DEAKIN LAW 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.

COPYRIGHT 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.

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DIRECTOR’S FOREWARD JORDAN COOK 2024 DIRECTOR OF COMMUNICATIONS

Welcome! I am delighted to introduce you to

The panel discussion aims to bring this

our second issue of Et Cetera for 2024.

issue to life, providing students with an opportunity to further their understanding of

As

law

students,

we

are

extremely

law reform and engage with our esteemed

privileged to be receiving a legal education.

panellists.

With this education, we are equipped with the knowledge and tools to shape the legal

As always, this issue could not have been

sector,

realised without the efforts of a multitude of

positively

influence

society

and

advocate for those disadvantaged by the current

system.

We

are

the

people.

future

generation of lawyers, and this is a role

Firstly, thank you to my wonderful officers-

which

an

Maddy, Ruby and Pri, who have worked

understanding of how we can best promote

tirelessly, not only on this publication, but

justice,

rights.

on all of the Communications initiatives this

Therefore, I present our theme for this

year, and taken each on with their own

issue; Reforming the Law.

creativity and drive.

The

we

must

equality

creation

take and

of

this

on

with

human

issue

has

seen

a

Further,

thank

you

to

our

amazing

number of illustrious contributors provide

contributors, as without their efforts we

some remarkable articles. These articles

would not have been able to create such a

outline our current vehicles for law reform,

wonderful

including their triumphs and pitfalls, and

taken time out of their busy schedules to

how we can best improve these processes.

write for Et Cetera and share their thoughts,

It

perspectives and experiences, inspiring the

is

important

that

we

are

constantly

analysing and reforming the law as our

publication.

They

have

each

next generation of law students.

society continues to evolve and adapt. The law is living, and it is crucial that we

Finally, I would like to express my heartfelt

continue to push for it to change for the

gratitude to you, our valued reader. Your

better.

support for the Communications Portfolio enables us to pursue our passion and make

This

issue

the

a meaningful impact. We are deeply thankful

Communications Portfolio is holding a panel

for your engagement. I hope you find these

event in conjunction with Et Cetera. This

exceptional articles as engaging as I have,

would not have been possible without the

and that they provide you with valuable

support of our sensational committee and I

insights and perspectives, helping to shape

am

your own legal journey and approach to the

so

marks

grateful

the

for

first

their

time

continued

dedication.

law.

iii

OFFICERS’ FOREWARD MADELINE FRENCH, RUBY EVANS AND PRIYANKA SHARMA 2024 COMMUNICATIONS OFFICERS In this issue of Et Cetera we bring you an

These articles cover different areas of law,

exciting discussion on law reform.

different

career

paths,

and

different

understandings of the importance of law In deciding on this topic, we thought about

reform, its celebrations and complications.

what combines our work as a portfolio with our passion for law. We considered how the

We are equally as excited to unveil this

law reflects society’s evolving values and

edition at the first ever panel run by the

how

those

wording. found

it

values

In

are

investigating

interesting

reflected this

how

in

its

Communications Portfolio - an event that we

topic,

we

hope is a steady accompaniment of future

is

issues of Et Cetera.

the

law

communicated, and the issues that can arise for

both

legal

the

Finally, this issue stands as a testament to

community. Interpretation is a skill we will

the unwavering dedication, creativity and

continue to develop throughout our careers,

hard

so we hope this issue will demonstrate to

article,

our readers the complexity of the law and

thoughtfully curated to inform and engage

the associated processes of reform.

our community.

We are proud to have the opportunity to

We deeply appreciate every contributor who

hear from renowned practitioners, industry

took the time to participate. Your expertise

leaders and passionate advocates on their

and commitment have made this publication

experiences

a valuable resource for our readers.

and

practitioners

perspectives

and

on

law

work

of

feature

everyone and

involved.

detail

has

Each been

reform. With law reform being a topic that resonates

with

many

law

students,

It has been a privilege for us to present this

understanding its reality and the nuances of

edition, and we are truly grateful for the

its varied practicability is an important next

opportunity

step on the path to our legal careers,

important topic and to work alongside such

informing the future of the law itself.

talented and passionate individuals.

To that end, we are incredibly excited to

Lastly, a heartfelt thank you to our readers.

present to you a range of ten articles,

We are confident that you will find this

exploring the area of law reform and its

edition both insightful and enjoyable, and

many nuances.

we look forward to your feedback.

iv

to

contribute

to

such

an

IN THIS ISSUE 01

05

ACHIEVING LAW REFORM IN AUSTRALIA: AN OVERVIEW

LAW REFORM – GAINING THE BENEFITS AND REDUCING THE RISKS

Bryan Keon-Cohen

Robert Clark

09 11

THE AUSTRALIAN LAW REFORM COMMISSION

LAW REFORM ON THE RUN: A JOURNALIST’S VIEW OF CLASS ACTIONS

Jane Hall and Natasha Pasahidis

Cindy Cameronne

v

15 GIVING A VOICE TO THOSE WHO NEED IT MOST

19 REPORT FINDS ‘CLEAR NEED’ FOR AN AUSTRALIAN HUMAN RIGHTS ACT. WHAT DIFFERENCE WOULD IT MAKE?

Jill Hennessy

21 LAWS WITHOUT IMPLEMENTATION AND ENFORCEMENT: BROKEN PROMISES AND DEMOCRATICALLY CORROSIVE

Dr Bruce Chen, Julie Debeljak and Pamela Tate AM KC

25

Simon Katterl

29

AN UNMET NEED: HUMAN TRAFFICKING SURVIVORS IN VICTORIA’S CRIMINAL JUSTICE SYSTEM

LOOKING BEYOND AN UGLY STATUTE: NATIONAL ENVIRONMENTAL LAW REFORM

33

Dr Felicity Gerry KC, Cate Read and Gabriela Franich

Annica Schoo

ADVOCACY AS LAW REFORM Isabelle Skaburskis

vi

ACHIEVING LAW REFORM IN AUSTRALIA: BRYAN

KEON-COHEN

AN OVERVIEW Law reform in Australia comes about for

e.g.,

any

“deepfake” sexual material being posted

of

several

reasons,

and

can

be

achieved – and frustrated - in various ways.

recent

on-line

legislation

without

consent

criminalising

using

new

AI-

4

powered software.

Reasons Means Government policy – too often geared to political advantage - is primary. In the land

Ways and means of achieving law reform

rights

are many and varied, but include, most

/

native

title

sphere,

examples

include the Fraser government’s supportive

significantly,

Aboriginal Land Rights (Northern Territory)

petition to the Commonwealth Parliament

Act 1976; the Bjelke-Peterson government’s

for

repressive

Islands

media diversity in Australia; a 2022 petition

Declaratory Act 1985, enacted to kill-off

to pressure all governments to raise the

2

the

Mabo

Queensland litigation

government’s

heavily

;

Coast and

a

Royal

petitions

e.g.,

Commission

to

a

2020

e-

investigate

the

Keating

age of criminal responsibility from ten to

negotiated

Native

fourteen

years. 5

Campaigns

and

Title Act 1993 – each government pursuing

demonstrations are of prime importance,

its radically different politics and policies.

e.g., “Change the Date” on 26 January each year; and Extinction Rebellion (XR) Australia

Other

reasons

include

“changes

in

demonstrations,

as

part

of

a

global

community beliefs, values and attitudes”

movement to raise community awareness

e.g.,

people;

and demand government action on climate

changes in living conditions e.g., social

change). Litigation is usually a last resort:

and/or

international

e.g., the Mabo litigation7 initiated in 1982

developments such as reforming industrial

after years of campaigns failed to achieve

relations, strengthening counter-terrorism

nation-wide statutory reform.

equality

for

economic

LGBTIQA+ and/or

laws); and advances in technology,

6

3

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.

1

1

1

The work of state and federal Law Reform

The ALRC, following its well-established

Commissions

process

is

also

important:

e.g.,

of

research

and

consultation,

amongst numerous examples, the Victorian

published an Issues Paper (March 2014), a

Law

Reform

2022

report

Discussion Paper (October 2014), leading

stalking

laws

to its final Report – Connection to Country

containing 45 recommendations for law

(September 2015). The Report made thirty

concerning

Commission’s Victoria’s

9

8

reform.

recommendations for substantial reform, including changing the stringent onus-of10

Of course, law reform bodies have limited

proof confronting claimants.

or no ability to investigate and report upon major issues other than those expressly

Apart from tabling the Report – as required

referred to them by the relevant Attorney-

– in the federal parliament on 4 June 2015,

General (i.e., they are subject to political

the

considerations

of

Further,

(September 2013 – September 2015) did

governments

and

are

not

nothing. Similarly, the Turnbull (2015 -

obligated

implement

of

their

2018); Morrison (2018 – 2022); and, to date,

to

the

day).

parliaments any

recommendations.

Abbott

government

then

in

power

the Albanese (2022 – current) governments have

Enacting Recommendations

all

done

Meanwhile,

nothing

problems

in

response.

and

numerous

complaints by many parties involved in the Reform efforts in this arena are subject to

native

governments of all political persuasions

original reference back in 2013, continue.

failing

to

implement

title

sector,

that

triggered

the

reform

recommendations – in whole or at all - one

Undeterred,

suspects too often driven, not by the

Attorney-General, this time in the current

in

June

2024,

recommendations’ merits, but by short-

Albanese

term political considerations.

reference to the ALRC concerning one part

government,

issued

the a

same further

only of the native title scheme, i.e., a A good example of these problems, and of

“Review of the Future Acts Regime”. This

additional

inquiry

delays

commissioning

by

further

a

government inquiries

by

is

part

government’s

of

the

response

to

Albanese the

Joint

Parliamentary Committees, is the ALRC’s

Standing Committee on Northern Australia’s

work on native title. In August 2013, federal

inquiry

into

“the

destruction

of

First

11

Attorney-General Mark Drefus QC, in the

Nation’s Cultural Heritage” – i.e., the willful

short-lived Rudd Labor government (June –

detonation of the 46,000 years-old Juukan

September 2013), provided an important

Gorge in the WA Pilbara region by mining

reference to the ALRC to review and report

giant Rio Tinto.

12

upon numerous problems in the native title regime, governed by the Native Title Act 1993 (Cth).

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).

2

The

ALRC’s

final

Report

is

due

by

8

Royal Commissions

December 2025.

The next law reform avenue to mention is Meanwhile, the Parliamentary Committee’s

Royal

eight recommendations for reform in the

Commonwealth has initiated “more than 138

cultural

Royal Commissions on a range of issues of

heritage

protection

arena

have

Commissions.

public

Since

interest

1901,

or

the

been “noted or agreed” by the federal

significant

concern.”

government.

These have included Aboriginal Deaths in

15

Custody (1987-91); Institutional Responses Victoria has led the country in responding

to Child Sexual Abuse (2018-2021); and

to

Aged Care Quality and Safety (2018-2021).

widely

recognised

failings

of,

and

frustration with, the native title regime.

Exercising power

its

over

concurrent

indigenous

constitutional

affairs,

Further, of local and potentially national

Victoria

significance,

is

the

currently

operating

enacted the Traditional Owner Settlement

Yoorrook Justice Commission, established

Act 2010.

by the Victorian government in May 2021.

This engages, inter alia, in research and

This establishes an alternative, optional

Truth

negotiation-based scheme for processing

recommendations concerning historical and

native title claims within Victoria. If and

ongoing injustices suffered by Victorian

when

First Nations peoples since colonization in

agreement

is

reached,

a

final

Court

Judge,

pursuant

to

and

law

reform

1788.16

determination of native title is made by a Federal

Telling,

the

Native Title Act 1993, thus linking the

As at June 2024, it has produced an Interim

federal and state schemes. Four settlement

Report (June 2022) and a Second Interim

agreements have been resolved to date in

Report into Victoria’s Child Protection and

Victoria, with another under negotiation.

Criminal Justice Systems, 17 with 46 reform recommendations.

Parliamentary Committees

The

Commission

is

currently working on land, sea and air injustices, with a final Report due in March

This brings us to reform work by numerous Parliamentary

Committees.

2025.

Additional

examples include the Victorian Legal and Social

Issues

Committee’s

inquiry

Constitutional Reform

into

Victoria’s anti-vilification protections. Its

Reasons for constitutional reform include to

report

recognise Australia’s First Peoples 18 ; to

of

March

2021

contained

36

recommendations to strengthen Victoria’s

increase

13

the

protection

of

rights

relevant laws, triggering legislation to “ban

(triggering conservative complaints of a

the display of symbols of Nazi ideology in

dangerous “Bill of Rights”);

public.”

14

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 regarding freedom of religion.

3

19

to change the Commonwealth’s law-making 20

powers ; and to reform Australia’s political system21.

This category of “law reform” brings its own unique

difficulties,

as

shown

by

the

“SINCE SOCIETY AND THE WORLD WE LIVE IN CONSTANTLY EVOLVES AND CHANGES, SO TOO MUST OUR LAWS.“

disastrous failure – 60% of electors voting NO – of the recent First Nations VOICE referendum. constitutional

Indeed, reform

in

achieving 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 22

– ideally,

should be removed from politicians’ control as far as possible.

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).

4

LAW REFORM Gaining the Benefits and Reducing the Risks

C

hanging 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.

5

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

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.”

7

“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.

8

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 Honourable Justice Mordecai Bromberg.

The ALRC provides evidence-based recommendations to change laws on topics referred to it by the Attorney-General of Australia. Our work spans a variety of interesting legal issues, from corporate crime to gene patents, to an important part of the Native Title Act 1993 (Cth) (our most recent referral).

Our commissioners dedicated to specific inquiries are often appointed for their expertise in the relevant area of law. Some commissioners have a more general role, spanning multiple inquiries. Similarly, our small team of law reformers consists of some with specialist experience and expertise in particular areas of law, and others who have a more diverse range of skills, experiences, and backgrounds.

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? We contribute to best practice law reform in various ways: Our contributions to other government inquiries and reports Our role in educating and engaging the Australian community in law reform Our staff have broad expertise to consider legal issues from diverse perspectives Our independence allows us to make recommendations for reforms ‘Without Fear or Favour’ 1 Our ability to engage with the broader legal community, including law reform bodies in other jurisdictions This might have you thinking the ALRC is the sole source of law reform in Australia. Thankfully, however, we are not the only people on the job. Most of Australia’s states and territories have their own law reform commissions. Additionally, government departments, parliamentary committees, joint ministerial councils, statutory agencies (for example, the Australian Human Rights Commission and the Productivity Commission), public inquiries, private consultants, academics and others all make vital contributions.

Of course, law reform in its traditional sense also occurs through the evolution of precedent established by the judiciary.

1 Keen readers will note that this is the title of our Final Report on Judicial Impartiality and the Law on Bias (Report 138).

9

HOW DO ALRC INQUIRIES WORK? At a basic level, all ALRC inquiries have two key elements: consultation and report writing (which includes research, analysis and reporting).

The consultation component of our work consists of meeting with, and considering submissions from, stakeholders. We may also host public events like webinars to engage with larger audiences. Additionally, we may work with advisory committees or specialist panels to bounce ideas around and seek feedback.

Collaborating with stakeholders offers an excellent opportunity to listen to community justice needs and identity key issues, providing quality assurance to our work. We will often consult throughout the various stages of an inquiry, to ensure we are on the right track.

Typically, an inquiry follows the below process:

INITIAL RESEARCH

CONSULTATION DOCUMENT

SUBMISSION REVIEW

FINAL REPORT

Inquiries are finalised upon delivery of a final report to the Attorney-General, who tables the report in Parliament. Final reports contain recommendations that describe the key reforms that the ALRC considers should be made to laws or legal processes.

ALRC recommendations are not self-executing, meaning it is up to the Australian Government (or other relevant authority) to determine when, or whether, to implement our recommendations. However, ALRC recommendations have a high implementation rate.

WHAT HAS THE ALRC BEEN WORKING ON RECENTLY? A fantastic question! Some of our current and recent inquiries include: Justice Responses to Sexual Violence Inquiry, which is looking at how different parts of the justice system respond to sexual violence. The Inquiry has broad terms of reference, and covers topics such as court processes, laws about consent, police and prosecutorial practices and support services. We have 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.

Review of the Future Acts Regime, which will be looking at the operation of the future acts regime in the 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 destruction of First Nations cultural heritage at Juukan Gorge.

Corporations and Financial Services Legislation Inquiry, which looked at how to simplify and rationalise the legislative framework for corporations and financial services. Judges have variously described parts 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 Corporations Act 2001 (Cth), and enact the ‘Financial Services Law’ as a schedule to that Act. Religious Educational Institutions and Anti-Discrimination Laws Inquiry, which looked at how to reform the Sex Discrimination Act 1984 (Cth), and other related anti-discrimination laws, to prevent discrimination against students and staff because of certain protected attributes, while maintaining the ability to build a community of faith. The ALRC made 11 recommendations that aim to maximise the realisation of human rights, and ensure that Commonwealth anti-discrimination laws are consistent with Australia’s international legal obligations.

10

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.

Class actions first landed on the shores of Australia in 1992, when Part IVA of the Federal

LAW REFORM ON THE RUN:

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.

A JOURNALIST’S VIEW OF CLASS ACTIONS

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.

11

Common Fund Orders

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

BY CINDY CAMERONNE

SYDNEY BUREAU CHIEF AT LAWYERLY

funder Galactic a considerable payday, the issue was referred to the Full Court within two weeks in a separate class action against McDonald’s.

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.

12

Contingency fees

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.

“We do not consider it is beyond the ability of the court to be alive to identifying any relevant conflicts and ensuring that the rights of group members have been appropriately protected,” said the Full Court.

13

Legislation vs common law

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.

“ 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 Albanese government announced that it would roll back the regulations just three months later.

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.

14

GIVING A VOICE TO THOSE WHO NEED IT MOST A CONVERSATION WITH JILL HENNESSY 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 effective and impactful legislation.

Upon entering into politics, Jill was instilled with a deep awareness of her ability to incite change, ensuring that she made the most of the opportunities she was presented with.

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] Barack Obama, who said ‘if you've got political capital, you've also got an obligation to spend it’.

Jill explains that there are two primary avenues for deciding on which areas of the law can be reformed electoral mandates and opportunity. For Jill, an opportunity is where the political timing is right to prioritise a certain area.

[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 group of political forces to get these through the parliament.

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 questions to the public].

15

Supported by this connection to the wider community, and believing that there is a strong importance in sharing the stories of those who have the strongest need for reform, Jill had the ability to provide a voice for the public in a manner which allowed her to gain support for proposed reforms.

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 at a really critical stage of their sexual identification.

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 my view, the obligation to take up the cause for change.

Whilst driving a great deal of reform, Jill faced heavy debates from those who were strongly opposed to certain proposals. When navigating these debates and discussions, Jill took these opportunities to learn and accept their stances, further informing her work.

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 with it.

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 judgementality and more opportunity. I think this is the quest of the modern law reform in the political domain.

16

While parliament is responsible for law reform, as they are able to seek to change legislation at their own initiative, they are often informed by other bodies such as the Victorian and Australian Law Reform Commissions.

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 how the government might sequence that.

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 both a health and justice component.

Whilst able to further examine reform, these bodies have occasionally been questioned regarding their use as a political tactic to avoid dealing with an issue. Contrary to this, Jill instead believes that they are a way to ensure an issue stays on the agenda rather than simply pushed to the side altogether.

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 political agenda.

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 pressing issues, and I think using law reform bodies is a good way to keep things on the agenda.

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, considering that politicians have been elected by the public, there is often a struggle between who should (and conversely, who should not) be able to reform the law.

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 is just the way of the system I tend to agree with. I think we've got pretty good checks and balances.

Finally, having been responsible for several crucial and powerful reforms, Jill credits her assisted dying reform as the one she is most proud of from her time in government.

17

[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 probably would have felt like I had absolutely let people down.

I feel that a lot of people, including myself, have a right to feel very proud about [getting] that done.

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.

18

REPORT FINDS ‘CLEAR NEED’ FOR AN AUSTRALIAN HUMAN RIGHTS ACT. WHAT DIFFERENCE WOULD IT MAKE? Dr Bruce Chen, Senior Lecturer at Deakin Law School Julie Debeljak, Associate Professor at Monash University Pamela Tate AM KC, 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

Why an Australian Human Rights Act?

improve human rights protections for Australia. It remains

federal

Human rights acts already exist in three states and

government will accept this main recommendation,

to

be

seen

whether

the

territories – the Australian Capital Territory, Victoria

but it is a significant development.

and Queensland. There are many examples demonstrating how these acts protect human

Where did it come from?

rights:

The inquiry was prompted by an earlier Free and

People with mental health illnesses are not

Equal Inquiry undertaken by the Australian Human

forced to undergo electroconvulsive treatment,

Rights Commission. The first inquiry’s purpose was

when they have the capacity to refuse;

to conduct “a national conversation on human

Strip searches of prisoners are to be carried

rights” and find out “what makes an effective

out in a manner that respects dignity;

system of human rights protection for 21st century

Human rights need to be properly considered

Australia, and what steps Australia needs to take to

when mandating COVID-19 vaccinations for the

get there”. This put the question of whether we

police force; and

should have an Australian Human Rights Act back

Requests for independent investigations of

on the political agenda.

alleged racist assaults by the police have to be properly considered.

After several years of engagement with the public and stakeholders, the commission concluded that

It is time to build on these successes at the federal

introducing such an act was “strongly supported”.

level.

It recommended a new national human rights

The commission’s report described the current

framework with an Australian Human Rights Act as

federal protection of human rights as “piecemeal”

its “centrepiece”.

and “patchy”.

19

Over the past decade, the government and

would be informed by consulting with Aboriginal

parliament have been required to consider human

and Torres Strait Islander peoples.

rights in the process of making laws.

The act would impose a positive duty on public However, this has not proven enough. The

authorities to comply with and properly consider

commission proposed an Australian Human Rights

human rights in their decision-making and actions.

Act to fill the gaps. It would mean human rights

They could still impose limits on human rights

considerations will also influence the government

where parliament permits or where the limits are

when it makes decisions and develops policies.

reasonable and justifiable.

Every Australian deserves to have their human

The positive duty would be directly enforceable by

rights respected and protected, including at the

a

federal level. This applies to aged care residents,

appropriate. Courts would also need to interpret

social security recipients (such as those affected

statutes so as not to breach human rights, so far as

by the Robodebt scandal), people with a disability,

is reasonably possible.

federal

court,

where

conciliation

is

not

and Aboriginal and Torres Strait Islander peoples.

Access to human rights protection should not

The report recommended strengthening scrutiny

depend on where a person lives or which level of

by government and parliament of policy and

government carries the responsibility.

legislation for compatibility with human rights. It also

What did the parliamentary inquiry report say?

recommended

extensive

human

rights

education in schools and the broader community, in part to drive the cultural changes needed to fully

The report observed a “clear need” for a comprehensive

and

enforceable

realise rights.

rights-based

framework – to ensure a “fair go” for all. It agreed

By

existing protections were “piecemeal”.

recommended an Australian Human Rights Act not

contrast,

a

minority

of

the

committee

be introduced.

Submissions received overwhelmingly favoured (87%) an Australian Human Rights Act. The

Where to next?

committee was reassured by the ACT, Victoria and Queensland experiences. It said these showed

The recommendations are now with the federal

human rights legislation “could help embed a

government to consider and seek further advice.

rights-respecting culture” and “has not led to

The report helpfully provides an example of what a

overwhelming litigation”.

human rights bill might look like, to promote understanding and discussion.

The report made 17 recommendations, including the enactment of an Australian Human Rights Act

It is up to the government to decide whether to

that broadly reflects the commission’s model. The

accept the recommendations and, if so, for

act would protect rights based on those under

parliament to vote.

international treaties to which Australia has agreed to be bound. This includes the right to freedom of

Securing an Australian Human Rights Act would

religion and a prohibition against advocacy of

demonstrate that Australia is a modern democratic

national, racial or religious hatred.

nation that values fairness, transparency and accountability.

The framing of cultural rights, and a right to a healthy environment, This article is republished from The Conversation under a Creative Commons license.

The original article is available via this link: https://theconversation.com/report-finds-clear-need-for-an-australian-human-rights-act-what-difference-would-it-make-231376

20

Laws Without Implementation and Enforcement: Broken Promises and Democratically Corrosive

SIMON KATTERL 1 MENTAL HEALTH ADVOCATE AND CONSULTANT

Royal Commissions have revealed profound harm within our social care systems, from Robo-debt

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.

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: 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 2. Preceding that report was the Aged Care Royal Commission, that was launched following numerous Parliamentary inquiries as well as public reports detailing abuse.3 And similarly, a Royal Commission handed down its report in Victoria, detailing a mental health system that routinely violated human rights.4 Government responses to such harms are often swift and short-term focused, grabbing at a solution that remains ready at-hand: new legislation.

Political solutions turn to law reform Faced with political crises and systemic harms, governments often rush to pass new legislation.

1 Simon Katterl Consulting, Naarm (Melbourne), VIC. 2 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities, Final Report: Volume 5: Governing for Inclusion (Commonwealth of Australia, September 2023).

3 Yvette Maker and Bernadette McSherry, ‘Regulating Restraint Use in Mental Health and Aged Care Settings: Lessons from the Oakden Scandal’ (2019) 44(1) Alternative Law Journal 29.

4 State of Victoria, Royal Commission into Victoria’s Mental Health System, Final Report, Summary and Recommendations (No Parliamentary Paper no. 202, Session 2018-2021 (document 1 of 6), 2021) 4.

21

The Royal Commission into Violence Abuse Neglect and Exploitation of People with Disabilities recommended a Disability Rights Act 5. Aged care legislation with a human rights focus has been promised to address similar abuses against the elderly. 6 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.7 Despite new legislative changes or protections, ongoing issues remain in aged care 8, disability settings 9 and new anti-corruption commissions responding to the Robo-debt saga 10. 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 11 . This oversight leads to frequent breaches of mental health legislation, making human rights seem "illusory" 12. Regulatory bodies, such as the former Mental Health Complaints Commission, failed to issue a single compliance notice out of 16,000 complaints 13 . The new Mental Health and Wellbeing Commission, established post-Royal Commission, also shows no improvement, as it opposed releasing its recommendations to the public 14.

Such failures challenge our belief in the rule of law and in the public’s trust in government’s capacity to enable reform.

Enhancing the conditions for real law reform 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.

2

Aligning the social and legal licence

6 5

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 15.

7

5 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Executive Summary: Our Vision for an Inclusive Australia and Recommendations (Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability, September 2023),193.

6 Australian Government Department of Health and Aged Care, ‘A Rights-Based New Aged Care Act’ (text, 14 June 2024).

7 Christopher Maylea, ‘Does New Mental Health Legislation in Victoria, Australia, Advance Human Rights?’ (2023) 25(1) Health and Human Rights 149.

8 Henry Belot, ‘Five Stars Awarded to Australian Aged Care Homes Failing Safety and Care Standards’, The Guardian (online, 18 January 2024).

9 Anne Connolly and Nina Kopel, ‘Review Details How NDIS Commission Failed to Act over Controversial Autism Program - ABC News’, ABC News (online, 10 April 2024).

10 Sarah Basford Canales, ‘Watchdog to Examine Corruption Commission’s Robodebt Decision after Complaints of Alleged “Corrupt Conduct”’, The Guardian (online, 13 June 2024).

11 Simon Katterl and Chris Maylea, ‘Keeping Human Rights in Mind: Embedding the Victorian Charter of Human Rights into the Public Mental Health System’ (2021) 27(1) Australian Journal of Human Rights 58.

12 Chris Maylea et al, ‘Consumers’ Experiences of Rights-Based Mental Health Laws: Lessons from Victoria, Australia’ (2021) 78 International Journal of Law and Psychiatry.

13 Kieran Rooney, ‘More than 16,000 Mental Health Complaints, but Watchdog yet to Bite’, The Age (7 December 2023); Simon Katterl and Sharon Friel, ‘Regulating Rights: Developing a Human Rights and Mental Health Regulatory Framework’ in Kay Wilson, Yvette Maker and Piers Gooding (eds), The Future of Mental Health, Disability and Criminal Law (Routledge, 2023) 267; Simon Katterl, ‘Resolving Mental Health Treatment Disputes in the Shadow of the Law: The Victorian Experience’ (2023) 2023 (September) Australian Dispute Resolution Bulletin 20.

14 Adeshola Ore, ‘Victoria’s Mental Health Watchdog Criticised after Fighting Release of Secret Recommendations | Victoria | The Guardian’, Guardian Australia (online, 12 July 2023).

15 Lucy M Robinson, Joe Fardin and Fabio Boschetti, ‘Clarifying the Current Role of a Social Licence in Its Legal and Political Context: An Examination of Mining in Western Australia’ (2020) 67 Resources Policy 101649.

22

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 16. 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).17 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 systems18 . 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.19 By contrast, an over-reliance on the external consultancies has reflected and reinforced a diminished public sector incapable to deliver on core government functions.

2

Second, a strong human rights culture among public servants mean they can avoid unintended human rights 6 5

issues and make better decisions that uphold people’s rights.

20

7

Third, strong engagement with, and leadership of, people with lived experience of social policy issues is 21

crucial.

Fourth, governments engaging in law and human rights reform must develop clear accountabilities, milestones, 22

risks engagement strategies are key.

16 Geert Demuijnck and Björn Fasterling, ‘The Social License to Operate’ (2016) 136 Journal of Business Ethics 675.

17 Neil Gunningham, ‘Compliance, Enforcement, and Regulatory Excellence’ [2017] (124) RegNet Research Paper 6.

18 Chris Maylea, ‘Victoria, Australia, Is Getting a New Mental Health and Wellbeing Bill’ [2022] Journal of Bioethical Inquiry 1.

19 For a critical account of the current status of the public sector on these measures in Victoria, see: Victorian Ombudsman, Alleged Politicisation of the Public Sector: Investigation of a Matter Referred from the Legislative Council on 9 February 2022 - Part 2 (2023).

20 Michael Brett Young, ‘From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006’ [2015] Victoria: State of Victoria 19–20.

21 State of Victoria, Royal Commission into Victoria’s Mental Health System, Volume 4: The Fundamentals for Enduring Reform (No Parliamentary Paper no. 202, Session 2018-2021 (document 5 of 6), State of Victoria, 2021) 46.

22 Ibid.

23

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 23

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 24 , performance information sharing 25 , complaints handling regarding service quality 26, and enforcement actions 27. Importantly, regulatory oversight agencies must be credible to achieve long-term compliance.28 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

29

. The Chief Psychiatrist,

responsible for promoting human rights, has consistently failed to show leadership, especially as it 30

31

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 32.

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.

2

6 5

7

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 August 2023).

24 Gunningham (n 17).

25 See as it relates to gender equality: Kate Farhall and Niki Vincent, ‘Gender Inequality Laid Bare: Transparency as a Tool to Drive Progress, Ethical Leadership and Good Governance in Victoria’ (2020) 37 Law Context: A Socio-Legal J. 125.

26 Katterl (n 13); Katterl and Friel (n 13).

27 Simon Katterl, ‘Regulatory Oversight, Mental Health and Human Rights’ (2021) 46(2) Alternative Law Journal 149.

28 Gunningham (n 17).

29 Castan Centre for Human Rights Law, Analysis of Mental Health Tribunal Engagement with Human Rights (Castan Centre for Human Rights Law, November 2021).

30 Victorian Auditor General’s Office, Child and Youth Mental Health: June 2019 (2018).

31 Katterl et al, Not before Time: Lived Experience-Led Justice and Repair (Advice to the Victorian Mental Health Minister) (January 2023).

32 Rooney (n 13).

24

AN UNMET NEED:

HUMAN TRAFFICKING SURVIVORS IN 1 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 2

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 Palermo Protocol).

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 on statutory protections (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.

1 This article is based on research currently being conducted in a Deakin Law School Project funded by the Victorian Legal Services Board: 2023-282 Understanding the Experiences of Women Modern Slavery Survivors in the Victorian Criminal Justice System.

2 Felicity Gerry KC contributed to the chapters on the UK and Australia.

25

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.

26

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.

3 We are also hoping to interview survivors, subject to ethics approval, through case study referrals and/or with women in prison.

27

REFERENCES Attorney-General’s Department, Australian Government, National Action Plan to Combat Modern Slavery 2020–25 (Commonwealth of Australia, December 2020) Attorney-General’s Department, Australian Government, Targeted Review of Modern Slavery Offences in Divisions 270 and 270 of the Criminal Code Act 1995 (Cth) (Findings Report) (Commonwealth of Australia, 2023) Bartels, Lorana, Patricia Easteal and Robyn Westgate, ‘Understanding Women’s Imprisonment in Australia’ (2020) 30(3) Women and Criminal Justice 204 Broidy, Lisa, Jason Payne and Alex R Piquero, ‘Making Sense of Heterogeneity in the Influence of Childhood Abuse, Mental Health, and Drug Use on Women’s Offending Pathways’ (2018) 45(10) Criminal Justice and Behaviour 1565 Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) Dichter, Melissa E, ‘“They Arrested Me – And I Was the Victim”: Women’s Experience with Getting Arrested in the Context of Domestic Violence’ (2012) 23(2) Women and Criminal Justice 81 Gauci, Jean-Pierre and Noemi Magugliani, Human Trafficking and the Rights of Trafficked Persons: An Exploratory Analysis on the Application of the Non-Punishment Principle (International Bar Association / British Institute of International and Comparative Law, 2023) (IBA report) Gerry, Felicity, Siva Vallabhaneni and Peter Shaw, ‘Game Theory and the Human Trafficking Dilemma’ (2021) 7(2) Journal of Human Trafficking 168 Inter-Agency Coordination Group against Trafficking in Persons (ICAT), ‘Non-Punishment of Victims of Trafficking’ (Issue Brief, 08/2020) Joint Standing Committee on Foreign Affairs, Defence and Trade, Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia (Commonwealth of Australia, December 2017) Modern Slavery Act 2018 (Cth) Reeves, Ellen, ‘“I’m Not at All Protected and I Think Other Women Should Know That, That They’re Not Protected Either”: Victim-Survivors’ Experiences of “Misidentification” in Victoria’s Family Violence System’ (2021) 10(4) International Journal for Crime, Justice and Social Democracy 39 Russell, Emma K, Bree Carlton and Danielle Tyson, ‘“It’s a Gendered Issue, 100 Per Cent”: How Tough Bail Laws Entrench Gender and Racial Inequality and Social Disadvantage (2021) 11(3) International Journal for Crime, Justice and Social Democracy 107 Russell, Emma K, Hui Zhou and Gabriela Franich, Gendered Injustice: The Policing and Criminalisation of Victim-Survivors of Domestic and Family Violence (Fitzroy Legal Service, 2022) United Nations Convention against Transnational Organized Crime, GA Res 55/25, UN Doc A/RES/55/25 (8 January 2001, adopted 15 November 2000) annex II (‘Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’) (Palermo Protocol) United Nations Office on Drugs and Crimes (UNODC), Female Victims of Trafficking for Sexual Exploitation as Defendants: A Case Law Analysis (December 2020) Victorian Legal Services Board (VLSB), Keeping Women Out of the Justice System: Report No 2 (August 2020) Walker, Samantha, Paul Sutherland and Melanie Millsteed, Characteristics and Offending of Women in Prison in Victoria, 2012-2018 (Crime Statistics Agency, November 2019)

28

Looking Beyond an Ugly Statute: National Environmental Law 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).

Section 142B – Breaches of conditions in environmental approvals 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.

29

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.

Section 497 – Infringement notices 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.

30

...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.

Section 18 – Significantly impacting a threatened species without approval 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.

31

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.

Words are powerful in the world of advocates, regulators, koalas and law students 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

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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

Advocacy as Law Reform

on survey results from trans people with experience of the CLS.1 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 long-

Isabelle Skaburskis Partner, Doogue + George Lawyers

standing 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.

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.

33

01

Deadnaming or misgendering an offender

He

before the court erases them, and that is

personality disturbance is not a result of

antithetical

being trans, but a result of the abuse so

to

how

our

system

of

individualised justice is meant to work. The

clarified

that

any

mental

illness

or

commonly experienced by trans people.

only person who can correct these practices is the person’s lawyer.

Further, we called evidence from a social worker who has supported virtually every

Advocacy aimed at adapting the application

trans prisoner in Victoria since 2018. He

of established legal principles is equally

provided cogent and disturbing evidence of

important. Running a plea can sometimes be

what a transwoman in prison will almost

a formulaic exercise. A court will have

certainly experience.

certain

expectations

of

childhood

experiences,

for

support

submission

of

a

what

kind

of

example,

will

reduced

moral

Judgment will have been handed down in this

case

by

the

time

this

article

is

culpability due to childhood deprivation and

published. We are hoping that the evidence

abuse. Equally, they will expect to see

before the court, which also included social

certain kinds of evidence of harm incurred

context evidence from published reports and

whilst on remand to support a submission

articles, will invite the court to recognise the

that they face additional hardship in custody

adversity faced by a trans accused, and how

and

that is relevant to the sentencing exercise.

therefore

their

sentence

must

be

reduced.

Such precedent will also serve to inform lawyers about the kind of information they

It is not generally understood that the harm

ought to be seeking from their trans clients,

incurred by a trans child growing up amidst

and arguments they should be running on

familial and systemic discrimination creates

their behalf, thereby increasing the quality

its own pathways to criminalisation. It is not

of representation for trans accused overall.

generally understood that a trans person in prison will face extraordinary danger from

Conclusion

prison policies (solitary confinement), and other prisoners or guards (physical and

Positive changes in the law can be made at

sexual violence).

every

stage

of

proceedings.

The

next

frontier regarding recognition of the unique In

a

recent

plea,

I

made

these

novel

issues

affecting

trans

accused

will

be

submissions. I provided a detailed account

binding authority from the Court of Appeal.

of

up,

In order to get that authority, though, a case

highlighting her many experiences of abuse

must be run thoroughly and strategically in

by discrimination and neglect. I recounted

the Court below. That can only be done if

details of what it feels like to come to

the lawyers are aware of the issues to be

understand yourself with only the words

raised, and have proper evidence to support

“faggot” and “cross-dresser” to guide you,

their submissions. Each case must be run as

internalising their vicious connotations; and

an invitation to the court to develop the law

to consistently fall short of other people’s

in a way that reflects society’s evolving

expectations of what you should be like.

awareness

the

client’s

experiences

growing

identities.

Evidence

from

an

experienced

forensic

psychiatrist was called to explain how this kind

of

treatment

impacts

a

person’s

development and personality.

34

of

trans

and

gender

diverse

ISSUE TWO AUGUST 2024