Key developments
- Procedural reforms in the federal courts in response to COVID-19
- The Child Protection (Offenders Registration) Act 2000 – referral to the NSW Law Reform Commission
- Inquiry into Firearms and Weapons Legislation (Criminal Use) Bill 2020
- Review of Australian Federal Police Powers
- Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020
- Inquiry into family, domestic and sexual violence
Procedural reforms in the federal courts in response to COVID-19
The Family Law Committee and the Litigation Law and Procedure Committee contributed to a submission to the Law Council regarding procedural reforms in the federal courts in response to COVID-19 and which measures should appropriately continue beyond lockdown measures.
We agreed with the LCA that the use of video link and teleconferencing during the pandemic has ensured matters can progress despite difficult circumstances, and has improved efficiencies and accessibility in many cases. The potential disadvantages of the use of virtual hearings and teleconferencing include disruption to the dispute resolution process; risks to open justice and fairness; and loss of valuable opportunities for parties to discuss matters in person. While for certain procedures these disadvantages can be outweighed by the cost and time savings to the parties, we suggested that contested hearings should continue to be conducted face to face. The Law Society made several suggestions for circumstances where virtual hearings should be maintained.
In the context of family law proceedings, we considered that first return dates, procedural or directions hearings, interim hearings and straightforward matters such as divorce and simple property matters would work well in the electronic medium. We supported the move in some Family Court registries towards providing subpoena material electronically and suggested this practice be standardised and continued.
The Child Protection (Offenders Registration) Act 2000 – referral to the NSW Law Reform Commission
The Law Society wrote to the Attorney General in relation to the Law Enforcement Conduct Commission’s (‘LECC’) Final Report into the NSW Police Force’s administration of the NSW Child Protection Register (‘Operation Tusket’), which was handed down in October 2019. The LECC found that since 2002, the NSW Police Force had made over 700 incorrect decisions about either which persons needed to be included on the Child Protection Register, or the length of their reporting periods. The LECC made a number of recommendations to notify those affected, rectify past errors and lower the risk of future mistakes.
The LECC found that a contributing factor to the problem was that the Child Protection (Offenders Registration) Act 2000 is so complex and ambiguous in important respects that it creates an inherent risk of errors in the Child Protection Register that the NSW Police Force cannot mitigate. We noted that the LECC recommended that the legislation be referred to the NSW Law Reform Commission for comprehensive review as a matter of urgency. The Law Society expressed its support for such a reference, and willingness to participate in any review of the Act.
Inquiry into Firearms and Weapons Legislation (Criminal Use) Bill 2020
The Criminal Law Committee contributed to a submission to the Parliamentary Inquiry into the provisions of the Firearms and Weapons Legislation (Criminal Use) Bill 2020 (the Bill).
The Law Society submitted that the proposed penalty of 20 years imprisonment for taking part in the manufacture of a weapon, weapon part, firearm or firearm part (regardless of whether a weapon, weapon part, firearm or firearm part is actually manufactured) is disproportionate. We commented that it is egregious that a person could be sentenced to a maximum of five years imprisonment for actual firearms parts possession (s 7A Firearms Act 1996), but up to 20 years for possession of a picture of how to make one. We submitted that the offences should be tailored to cover the broad spectrum of offending covered by the proposed provisions.
The Law Society made a number of suggestions in relation to Firearms Prohibition Orders (‘FPO’s), including support for the Ombudsman’s recommendation that an FPO should expire after five years from the date it is served – currently FPOs apply for life or until revoked. Similarly, we supported the implementation of the Ombudsman’s recommendation for a further independent and objective evaluation of the effectiveness of FPO search powers once they have been in operation at least five years. Without such a provision there is no obligation to review the exercise of these extraordinary powers. The need for a further review is also supported by the fact that firearms, ammunition and firearm parts were found in only 2 per cent of all searches. Nothing was found in 90 per cent of searches and the remaining 8 per cent of searches found small amounts of drugs and drug paraphernalia.
We submitted that FPOs and Weapon Prohibition Orders (‘WPO’s) should not be made in relation to children. The orders expose children to extensive infringements of their civil liberties, in particular because of the extensive personal and property search powers provided for by the Acts. Section 75(1A) effectively prohibits any child from appealing an FPO, as they are not permitted to hold a firearms licence. This creates an inherent unfairness. We submitted that the general ineligibility of children to attain firearm and weapon permits is sufficient to meet the relevant policy aims, and there is not a sufficient case for children to be subject to either FPOs or WPOs. To that end, we proposed an amendment to s 73 of the Firearms Act and s 33 of the Weapons Prohibition Act to the effect that an FPO or WPO cannot be made in respect of a person under 18 years of age.
