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Legal Tweaks That Would Change NSW and the Nation

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Legal Tweaks That Would Change NSW and the Nation Legal Tweaks that would change NSW and the nation. 2017 Edited By Jade Tyrrell Published By New South Wales Society of Labor Lawyers Artistic Design By Lewis Hamilton Cover Illustration By Linda Hoang (www.lindahoang.com) Our Mission The New South Wales Society of Labor Lawyers aims, through scholarship and advocacy, to effect positive and equitable change in substantive and procedural law, the administration of justice, the legal profession, the provision of legal services and legal aid, and legal education. Copyright 2017 New South Wales Society of Labor Lawyers INC9896948. The 2017 Committee is James Mack, Rose Khalilizadeh, Janai Tabbernor, Lewis Hamilton, Tom Kelly, Kate Harrison, Kirk McKenzie, Philip Boncardo, Stephen Lawrence, Claire Pullen, Jade Tyrrell and Tina Zhou. Disclaimer Any views or opinions expressed are those of the individual authors and do not necessarily reflect the views and opinions of the New South Wales Society of Labor Lawyers or of the Australian Labor Party. Moreover, any organisations represented in this publication are not expressing association with the New South Wales Society of Labor Lawyers or the Australian Labor Party. Acknowledgements Our thanks goes to all those who contributed to this publication, and to the lawyers before them who built the modern Australian Labor Party and embedded social justice in our national identity. We especially thank our sponsors, Maurice Blackburn Lawyers, who car- ry on the inspiring legacy of Maurice McRae Blackburn, a champion lawyer and a federal Labor MP. 2 Legal Tweaks INTRODUCTION HEALTH & SOCIAL WELFARE 1. Foreword - Mark Dreyfus QC MP 27. Nicholas Cowdery AM QC 2. Foreword - Paul Lynch MP 28. Joe Blackshield 3. Editor’s Note - Jade Tyrrell INDIGENOUS AUSTRALIA ACCESS TO JUSTICE 29. Kathryn Ridge 4. Senthorun Raj 30. Charles Gregory 5. Stephen Lawrence 6. Stephen Dametto LABOUR LAW & STANDARDS OF CARE 7. Harry Edwards 8. Owen Nanlohy 31. Philip Boncardo 9. Aloysius Robinson 32. Penny Parker 10. Greg Jones 33. Cassandra Taylor 11. Eliot Olivier 34. Jack McNally 12. Lewis Hamilton 35. Keifer Veloso 13. James Mack 36. Justin Pen 37. Claire Pullen PUBLIC LAW 38. Aron Nielson 15. Blade Atton MIGRATION LAW ANTI-DISCRIMINATION 39. Douglas McDonald-Norman 40. Jane Leibowitz 16. Megan Cant 41. Kirk McKenzie 17. Amy Zhang PROPERTY LAW & ANIMAL CRIME & LAW ENFORCEMENT OWNERSHIP 18. Tina Zhou 42. Michael Hall SC 19. Luke Beck 43. Evan James 20. Madeleine Bridgett 21. Maeve Curry 22. Kieran Fitzgerald 23. Rose Khalilizadeh 24. Blake Osmond 25. Amelia Birnie 26. David Rofe 3 It is a pleasure to introduce the 2017 edition of Legal Tweaks. I congratulate the NSW Society of Labor Lawyers on this progressive publication, now in its sixth successive annual edition. Law reform is of course a vital part of Labor tradition. It is no doubt through the indispensable hard work of lawyers and academics friendly to the Labor cause that a meaningful law reform agenda endures. This work is perhaps even more vital given the direction of those presently in Government in Canberra. In so many important areas, law reform has ground to a complete halt during this Liberal Government. Meanwhile, the Government has attacked access to justice with cuts to Legal Aid, Community Legal Centres and other essential legal assistance services. When we defeat this Government, it will be because we have won a contest of ideas with our conservative opponents; because we have relied on substance instead of slogans. By consolidating a culture of ideas within Labor, and by encouraging new proposals for law reform, Legal Tweaks is a reminder of the social good that can be achieved by even small ‘tweaks’ to our laws. I hope this edition, like its predecessors, will encourage further debate and discussion in Labor circles and beyond about the potential for law reform. I congratulate the contributors on the wide range of issues canvassed by this publication, and for reminding us of the work that lies ahead. Mark Dreyfus QC MP Foreword Federal Shadow Attorney-General Foreword MARK DREYFUS QC MP Member for Isaacs 1 I’m delighted to be able to provide a Foreword to this edition of Legal Tweaks by NSW Labor Lawyers. Labor cannot be satisfied to merely occupy ministerial benches. If elected to Government, Labor wants to reform and progress. That has always been the hallmark of successful Labor Governments. To do that, we need a culture of debate, discussion and intellectual endeavour. Legal Tweaks is part of that culture. Since Forewordthe reestablishment of Labor Lawyers in PAUL LYNCHthe MP wake of the 2011 state electoral defeat, the Society has been a fruitful source of discussion, policy proposals, suggestions and ideas. This has made a tangible contribution to the reinvigoration of NSW Labor and helps to prepare the basis for a successful period in Government if we are elected in 2019. The broad range of contributors and contribu- tions has always been commendable. I’d like to thank the Editor of Legal Tweaks and the Society members involved in the preparation of this year’s edition. It is part of the tradition of progressive reform and advocacy that represents the best of Labor. Paul Lynch MP NSW Shadow Attorney-General Member for Liverpool Foreword INTRODUCTION PAUL LYNCH MP 2 As progressive lawyers, it is incumbent upon us to promote law reform that is geared towards improving fairness and equality in society. This is why Legal Tweaks, now in its sixth year, is such an important platform for advocacy by members of Labor Lawyers and non-members who wish to contribute their proposed ‘tweaks’ to improve the law. Legal Tweaks aims to generate healthy debate around a wide variety of issues to achieve a common purpose: change that advances our society. It has been a pleasure to edit this publication. The quality and diversity of the tweaks in this year’s edition is truly impressive. They are a testament to the strength of this Society and its supporters. I hope you enjoy reading these submissions as much as I have enjoyed collating them. With a looming federal election and Turnbull’s tenuous hold on power in Federal Parliament, it is more important than ever for Labor, Labor Lawyers and the legal profession to be advocating for progressive policies and law reform, in a manner that is thought-provoking and well- informed. I hope to see some of these proposed tweaks reach the floor of Parliament, as we have already seen with some notable contributions in the past. I sincerely thank everyone who has contributed to this year’s edition of Legal Tweaks. The importance of your contributions extends beyond this publication. I encourage you to keep up the good fight for the change you INTRODUCTION want to see. Jade Tyrrell Editor’s Note 2017 Legal Tweaks Editor Jade Tyrrell 3 Senthorun Raj LECTURER IN LAW, KEELE UNIVERSITY If you could change one (Stage Two), unless they could demonstrate particular section or regulation, that they were competent enough to con- sent. But, the Family Court would still have what would it be? to measure their competence. Either way: trans young people who wanted hormones Australia must legislate so that trans young had to go to court. people can access greater medical sup- port without having to get approval from Legal processes generate enormous fi- the Family Court of Australia. nancial, physical, social, and psychological costs. The Family Court has approved ev- Why does this section or ery application it has received on this issue regulation need to be changed? and urged legislative reform. Trans young people should be able to get the treatment Many trans young people (those who iden- they want, in consultation with their guard- tify with a different sex to the one they were ians and doctors, without courts getting in assigned at birth) get medical support to the way. affirm their gender identity. Unfortunately, common law requires that these minors go to court before a doctor can undertake “spe- The Family Court cial medical procedures”. This applies even when both clinicians and parents support a has approved every young person’s request for treatment. application it has In 2013, the Family Court of Australia modi- received on this issue fied an earlier decision to hold that doctors and urged legislative could prescribe puberty blockers (Stage One) to trans minors without going to court reform. but a trans minor would still require court ACCESS TO JUSTICE TO ACCESS authorisation to get hormone treatment “ 4 Stephen Lawrence BARRISTER, SIR OWEN DIXON CHAMBERS & FORMER PRINCIPAL SOLICITOR, DUBBO ALS If you could change one the ‘judicialisation’ of summary justice by re- particular section or regulation, placing magistrates of the current Local Court with judges of a new Local Court of NSW. what would it be? I would repeal the Local Court Act 2007 The next Labor (NSW), abolish the Magistracy and replace “ the existing summary justice system with government should a modern, properly resourced and fairly continue the functioning, equal justice system. ‘judicialisation’ of Why does this section or summary justice... regulation need to be changed? Magistrates should become judges of The summary jurisdiction of the NSW judi- equal, but different, stature to judges of the ciary has a long and troubled history. Be- District Court and be remunerated accord- ginning with the landed ‘convict magistra- ingly, while maintaining a proper judicial cy’, through to the modern day of judicial hierarchy. Rotation between the two courts independence under statute, the continu- should be considered to encourage com- ous reality has been inadequate resourcing mon behavioural norms. ACCESS TO JUSTICE TO ACCESS of the summary justice system in NSW. This legislative reform should be accompa- The Wran Labor Government took import- nied by the replacement of Police Prosecu- ant steps to guarantee summary judicial tors with prosecutors from the Office of the independence and drag the Local Court DPP.
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