Law Reform I N S T I T U T E

T A S M A N I A LAW REFORM I N S T I T U T E Faculty of Law, Private Bag 89, Hobart, TAS 7001 Phone: (03) 62262069, fax: (03) 62267623 [email protected] www.law.utas.edu.au/reform Annual Progress and Financial Report 2017 External Reference: DPAC - Tasmanian Law Reform Institute FMIS: 023901 Contents 1. Structure, Board Members and staff 1 2. Activities 2 3. Financial Statement 18 1. Structure, Board Members and Staff The Institute was established on 23 July 2001 by Agreement between the State Government, the University of Tasmania and the Law Society of Tasmania. In April 2015, the Partners to the Institute Agreement finalised a renewal agreement extending the agreement for five years, until November 2019. The functions and operations of the Institute are undertaken by its Director, with assistance from Board members, research assistants and Law Faculty staff and students. The founding Director, Emeritus Professor Kate Warner, retired from the position in December 2014. The current Director, Assoc Prof Terese Henning was appointed in April 2015. All written proposals for law reform projects are presented to the Board, which then makes recommendations for consideration by the Institute (Tasmania Law Reform Institute Renewal Agreement, clause 3.3), including identifying a recommended project’s extent, time for completion, expected output and cost (clause 3.4). Board members Associate Professor Terese Henning, Director of the Institute, appointed by the Vice- Chancellor of the University of Tasmania Professor Margaret Otlowski, Dean of the Faculty of Law at the University of Tasmania Page 1 of 20 The Honourable Justice H Wood, appointed by the Honourable Chief Justice of Tasmania Simon Overland, appointed by the Attorney-General (resigned Aug 2017) Kristy Bourne, appointed by the Attorney-General (commenced Nov 2017) Rohan Foon, appointed by the Law Society Dr Jeremy Prichard, appointed by the Council of the University Craig Mackie, nominated by the Bar Association Ann Hughes, appointed by the Board as a community representative Kim Baumeler, appointed at the invitation of the Board Legal researchers during 2017 Dr Helen Cockburn BA, LLB (Hons), PhD Dr Rebecca Bradfield BA/LLB (Hons), PhD Bruce Newey BA, LLB, LLM Rikki Mawad BA/LLB (Hons), MCDR Taya Ketelaar-Jones Kate Hanslow Dylan Richards Kate Brown Michael Stokes Leigh Sealy SC Ken Mackie Dr Elise Histed 2. Activities (a) Board Meetings The Board held seven meetings in 2017 (22 February, 29 March, 31 May, 27 September, 25 October, 22 November and 21 December). The first six meetings were held at the University of Tasmania Law Faculty, and the final meeting at Assoc. Prof Henning’s home. (b) Projects Completed law reform projects Court intermediaries In June 2015, the Institute received a reference from the then Attorney-General to examine the feasibility of instituting an expert intermediary scheme as a special measure to facilitate the reception of evidence in criminal trials from child witnesses and witnesses with cognitive impairments in Tasmania. The reference examined the special measures currently available in Tasmania to support people with communication needs throughout the criminal trial process. It considered the approaches in other Australian jurisdictions and overseas, concentrating on communication assistant schemes but also noted the range of special measures available to ensure victims, witnesses and accused persons with communication difficulties have equal access to justice. Page 2 of 20 In preparing the Issues paper on this reference, the Institute conducted a number of discussions with key stakeholders and subsequently co-hosted with the then Attorney-General, the Hon Dr Vanessa Goodwin, a Ministerial Roundtable attended by over 35 key stakeholders to obtain advice about key issues to be addressed in the Issues Paper. Following the release of the Issues Paper and Easy Read Summary in May 2016, researcher Rikki Mawad travelled around Tasmania to consult with Tasmanians in over 20 communities. Ms. Mawad also met with young people in the Ashley Youth Detention Centre, people with disabilities who had interactions in the criminal justice system and stakeholders across the disability, education, justice and community sectors. She also hosted a Community Conversation on Access to Justice at the University of Tasmania in September 2016. Approximately 20 written submissions and over 300 oral responses to the Issues Paper were received. Crown counsel, Kate Brown was seconded from the Office of the Director of Public Prosecutions to work with Rikki Mawad and the Director on the Final Report and Recommendations for this reference. The draft Final Report and Easy Read English version were approved by the Board in late November 2017 for release in January 2018. The report recommended significant changes to the State’s criminal justice system including using appropriately trained communication experts (intermediaries) to assist victims, witnesses and defendants who have communication needs to engage with police, lawyers and the courts. It was recommended that intermediaries not be advocates, but rather act as independent advisors and quasi-translators for people with communication needs. They would provide expert advice to police, lawyers and judges about the best way to communicate with people with communication needs and may intervene in questioning that does not match their linguistic capacities. The Institute’s recommendations correspond with those made by the Royal Commission into Institutional Responses to Child Sexual Abuse that intermediary schemes should be implemented in all Australian jurisdictions. They would also ensure that Tasmania’s laws are consistent with international human rights obligations. Completion of the project was assisted by receipt of $16,481.60 from the Solicitors’ Guarantee Fund with an additional amount of $5000 secured to cover the cost of producing Easy Read versions of both the Issues Paper and Final Report. Dangerous Criminals In October 2016, the President of the Prisoner’s Legal Service Association requested that the Institute review the provisions in the Sentencing Act 1997 (Tas) relating to the indefinite detention of declared dangerous criminals with a view to modernisation of the law, and achieving uniformity between the laws of Tasmania and other jurisdictions. The Board decided that this was not an appropriate topic for a complete reform project, but it was accepted as an appropriate subject for a more limited response from the Institute, in the form of a research paper. At her regular meeting with the Attorney General in late 2016, the Director flagged this reference. The Attorney General originally expressed her intention to refer a broad-based review of the Tasmanian dangerous criminal legislation to the Institute. After the project had begun, however, the Institute was advised that the Government would review Page 3 of 20 that legislation in-house, but remained interested in receiving a research paper for consideration in undertaking that work. Research papers provide background information on areas of law reform, but their preparation does not involve the publication of an Issues Paper, the undertaking of consultation, or the preparation of a Final Report with recommendations. A final year Law undergraduate Ms Taya Ketelaar-Jones undertook her Honours research project on this issue, supervised by Dr Helen Cockburn. The student’s work incorporated the broader terms of reference previously foreshadowed by the Attorney General. This preliminary research formed the basis for a Research Paper which was released by the Institute in July 2017. There was significant media interest in the paper. Ongoing law reform projects Consensual assaults The Institute received a reference on the issue of consensual assaults from the then Attorney- General in May 2015. Questions about justifiable State intervention in consensual acts of violence pit the right to personal autonomy against the public interest in preventing violence. The issue is particularly complex where the violence occurs in the context of sports, sadomasochistic behaviours or partner violence. Research focused on the tensions between the valuable role the provision plays and the importance of addressing public concerns about violence in the home, as well as the difficulties caused by outdated language. Recommendations sought to navigate these tensions and set out a potential reform that would preserve the function of the provision, eliminate outmoded language and address the failure of the provision to adequately address violence in the home. An Issues Paper for this reference was prepared by Dr Helen Cockburn, and released in June 2017. Mr Dylan Richards was recruited to undertake the consultation phase of project, and to prepare the Final Report. After the release of the Issues Paper, the Institute received submissions from key stakeholders. A preliminary draft of the Final Report and recommendations was considered by the Board in December 2017, with further work to be completed in early 2018. A release date is expected of April 2018. Responding to the Problem of Recidivist Drink Drivers In 2013 the Tasmanian Institute of Law Enforcement Studies (TILES) and the University of Tasmania’s Faculty of Law hosted an international workshop designed to map pathways in addressing the problem of recidivist drink driving. The workshop identified as one of the main issues in this area the poor fit of some criminal justice responses to instances of repeat drink driving.

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