Law Council Update

Parliament has opportunity to do more to protect older Australians

When the Senate considers the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill, it has an opportunity to strengthen the proposed reforms and protect older Australians. “We welcome the Senate’s second reading debate on this Bill,” Law Council of Australia President, Mr Tass Liveris said. “The Aged Care Royal Commission undertook intensive investigation to determine how to improve aged care in this country and we support efforts to implement its recommendations.” “However, as we emphasised in our submission on this Bill, we believe there are improvements that can be made, particularly in regard to the new measures to provide for the screening of aged care workers and to impose a Code of Conduct on aged care workers and providers.” While the Explanatory Memorandum for the Bill states the intention is to establish nationally consistent pre-employment screening for aged care workers, it leaves it up to the Minister to determine whether a State or Territory screening law is sufficient to be able to form part of the national scheme. “The Bill does not require a State or Territory screening law to include any particular features which would promote national consistency and we could actually end up with very different schemes in each jurisdiction,” Mr Liveris explained. “It is the Law Council’s view that Parliament should set out the key features which should be included in such a screening law – including procedural fairness obligations.” “The Law Council supports the measure in the Bill to establish a Code of Conduct prescribing conduct standards for aged care workers and providers and provide for sanction powers in the event of noncompliance.” “However, given the significance of this measure and the repercussions of noncompliance, the Law Council considers that Parliament should determine the features of the Code in primary legislation or, as a minimum, provide high-level guidance regarding such matters.” The Law Council suggests that greater attention be given to the applicable safeguards and thresholds with respect to the Bill’s banning order powers, which have significant consequences. More transparency is also needed around a proposed Ministerial power to authorise persons or bodies to give informed consent to the use of a restrictive practice in relation to a care recipient who lacks capacity. The Bill should provide guidance and clarity regarding the kinds of persons or bodies who may be authorised give such consent.

Funding justice must be Budget priority

The rule of law and human rights of all people are core tenets of our modern democracy and having equal access to justice is a vital part of protecting those rights. Therefore, access to justice must be properly resourced. “All Australians have the right to seek justice, but this right doesn’t count for much if it cannot be exercised. Ensuring this right for every person underpins each of the recommendations contained in the Law Council’s Pre-Budget Submission,” Law Council of Australia President, Mr Tass Liveris explained. The Law Council’s Pre-Budget Submission calls for a full review of the resourcing needs of the judicial system. “We want the Australian Government to commit to this review and to providing resources if areas that require additional support are identified,” Mr Liveris said. “In addition, we would like to see increased allocations in the 2022-23 Budget for our courts, commissions and tribunals to enable them to fill vacancies, appoint additional judges and reduce backlogs. “Legal problems commonly occur in society, however an unacceptable proportion of our population are disadvantaged and vulnerable in their interactions with our legal system. “Increasing baseline ongoing funding for Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services by at least $400 million is critical to addressing current service gaps. “Australians living outside capital cities are one group in particular who can face difficulties in accessing legal services. The Australian Government should allocate adequate, long-term funding for legal assistance services in regional, rural and remote communities and investigate funding for the development of incentive programs that encourage solicitors to take up employment in these communities.” The Law Council’s submission also seeks to ensure an improved family law system through implementation of the remaining Australian Law Reform Commission’s recommendations in its Inquiry into the Family Law System, including sustained funding of court-based initiatives that aim to facilitate early dispute resolution, such as the Lighthouse Project, the Priority Property Pools under $500,000 program, and the Family Dispute Resolution program. “While still out for consultation, we hope to see funds set aside in this year’s Budget for implementation of the National Plan to Reduce Violence Against Women and Children,” Mr Liveris said.

Law Council supports statutory tort for serious invasion of privacy

In its submission to the review of the Privacy Act 1988 (Cth) (Privacy Act), the Law Council has expressed support for the development of a statutory tort of serious invasion of privacy. “If an individual is harmed by a serious invasion of their privacy – such as someone’s private activities being watched or recorded, or private information like medical records being made public – there is currently no tortious right of action,” Law Council of Australia President, Mr Tass Liveris said.

“This limits a person’s ability to pursue compensation or an injunction.” “Technological advances have increased the risk of these types of breaches, while limiting the capacity for our current legislative framework to keep pace.” Therefore, the Law Council’s submission reinforces the Australian Law Reform Commission’s conclusion contained in its report ‘Serious Invasions of Privacy in The Digital Era’, that the design of legal privacy protection must be sufficiently flexible to adapt to rapidly changing technologies and capabilities without needing constant amendments.

“We support introduction of this statutory right on the condition there are sufficiently high thresholds in place to ensure actions are limited to serious invasions of privacy and the scope of the tort is carefully considered and drafted to address the risk of unintended consequences. This will require extensive public consultation in order to get the balance right. “The location of a new statutory tort will also need to be carefully considered, particularly if it is to apply to intrusion upon seclusion (e.g. physically intruding into a person’s private space or by watching, listening to or recording private activities or private affairs) as the Privacy Act primarily regulates information privacy.” Other recommendations contained in the Law Council’s submission include that the definition of ‘personal information’ be updated and existing exemptions, including in relation to small businesses, employee records and journalism, be clarified.