- We are updating our criminal and sentencing publications including the Local Court Bench Book for magistrates to reflect changes that will be made by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
This Act, expected to commence in early 2021, will make numerous changes to the statutory scheme by which a magistrate may make diversionary orders for a defendant with a mental health impairment or a cognitive impairment, or both.
- We continue to closely monitor relevant COVID-19 related legislation for the “COVID-19 Resources” webpage on JIRS
Since 15 March 2020, when the first public health order was made dealing with the COVID-19 pandemic (Public Health (COVID-19 Public Events) Order 2020), we have been continually populating the various Legislation Tables on the COVID-19 Resources webpage on JIRS. The rate of legislative emergency measures and changes was prodigious as understanding of the scope of the crisis surrounding the pandemic developed.
The most active table continues to be the “Section 10 Public Health Orders: Ministerial Directions” which has links to, and pertinent information about, almost 100 public health orders made under the Public Health Act 2010. Other Tables include a list of Lawcodes created under NSW and Commonwealth legislation; COVID-19 Pandemic Ministerial Orders under s 10.17 of the Environment Planning and Assessment Act 1979; a general table of Amending Regulations and Rules; and, Exemption Orders under s 204 of the Retirement Villages Act 1999. Work continues to keep these Tables current.
- Lawcodes is working on Commonwealth Bail flags to note presumptions against bail for certain Commonwealth offences
Sections 15AA and 15AAA of the Crimes Act 1914 (Cth) provide that a presumption against bail exists for certain Commonwealth offences. Section 15AA deals with terrorism, or treason, urging violence and advocating terrorism or genocide, and espionage if a person’s conduct caused or carried a substantial risk of causing death. A bail authority must be satisfied that exceptional circumstances exist to justify bail under s 15AA(1).
Section 15AAA deals with bail not being granted to various persons charged with, or convicted of, certain Commonwealth child sex offences, like s 272.8(1) of the Criminal Code concerning the offence of having sexual intercourse with a child under 16 years of age outside Australia. A bail authority must be satisfied by the person that circumstances exist to grant bail: s 15AAA(1).
It is anticipated that all Commonwealth offences found in Lawcodes affected by ss 15AA and 15AAA will have new Commonwealth flags enhancing information on how Commonwealth legislation and the Bail Act 2013 interact
- We have updated the Women’s chapter in the award-winning Equality before the law Bench Book.
This chapter has been rewritten, with updated cases and legislation, new and updated statistics and new sections on socio-economic factors and gender disadvantage, sexual harassment, intersectional discrimination and violence against women. Statistics reported show that women experience inequality and disadvantage which arise because of their sex and gender characteristics. The revised chapter focuses on the issues that may arise for women in their interactions with the justice system to assist judicial understanding of and sensitivity to the requirements of women.
Cumulative economic disadvantage, often caused by women’s life experiences in this regard, can lead to poverty and homelessness in retirement. Included in the new section at 7.2 Socio-economic factors and gender disadvantage is commentary and statistics on the gender pay gap as it relates to both wages and superannuation, as well as the impact of caring, domestic work and the “mental load”.
Australia now lags behind other countries in preventing and responding to sexual harassment. Thirty-five years on from the enactment of the Sex Discrimination Act 1984, in a landmark report published this year, Respect@Work, the Sex Discrimination Commissioner reports that the rate of change has been disappointingly slow. The new section at 7.3 Sexual harassment includes the findings of this report as well as findings relating to sexual harassment in the Australian legal profession.
The Australian Human Rights Commission has defined intersectional discrimination as “discrimination on the basis of a combination of attributes”, such as gender, race, disability, age, sexual orientation, gender identity, intersex status or socio-economic status. New section 7.4 Intersectional discrimination provides information on women with disabilities, older women, women from migrant and refugee backgrounds, LGBTIQA+ people, and First Nations women.
The new section 7.5 Violence against women covers cultural and social attitudes to domestic violence, coercive control, technology-facilitated abuse, sexual assault and female genital mutilation/cutting.
The chapter was developed by Judicial Commission staff. An expert committee reviewed and provided feedback. The Committee comprised:
- Ms Philippa Davis, Principal Solicitor, Women’s Legal Service NSW
- Ms Larissa Andelman, President, Women Lawyers’ Association for NSW Inc; Ms Renée Bianchi, Vice President, Women Lawyers’ Association for NSW Inc; Ms Holly Lam, Immediate Past President, and the Executive of the Women Lawyers’ Association for NSW Inc.
- Professor Simon Rice, OAM, Kim Santow Chair of Law and Social Justice, University of Sydney.
- Integrated criminal case system database for Papua New Guinea’s justice sector
The Judicial Commission has developed an integrated criminal case system database (ICCSD) for the Papua New Guinea Law and Justice Sector. This follows our successful development of a sentencing database for PNG which is now fully operational. The pilot ICCSD was initially tested in three provinces. Following successful completion of the pilot phase and renewal of the agreement, the ICCSD is now being expanded to four more provinces of PNG. The system has been designed to track and monitor cases from the point of being charged by the police to the point of dispensation of penalty for all types of criminal cases including appeals. All vital information will be shared among law and justice agencies of PNG and be readily accessible through this single source allowing for significant improvement in data quality, currency of information and the way criminal cases are managed.
- We have developed interactive learning modules for suggested jury directions
The Commission has developed interactive learning modules for suggested jury directions published in the Criminal Trial Courts Bench Book. These modules are available as a stand-alone app called JCILR, for both Apple and Android devices.
- International Judicial Education and Training journal Issue 7 published in August 2020
The Commission has partnered with the International Organization for Judicial Training to publish Issue 7 of the IOJT’s journal Judicial Education and Training. The journal publishes topical articles on the education and training of judges and justice sector professionals around the world. Most of the articles derive from the IOJT’s successful 9th International Conference on the Training of the Judiciary, held in Cape Town, in November 2019.
- International Organization for Judicial Training judicial training principles
The Commission is a member of the International Organization for Judicial Training (IOJT) and participated in the 8th International Conference held in Manila, the Philippines in late 2017. The conference unanimously resolved to adopt the Declaration of Judicial Training Principles. The principles apply to the IOJT’s 129 member training organisations.
- Cultural diversity online training program published
The Commission has developed an online training module on cultural diversity for judicial officers, in partnership with other Australian judicial education providers. The training package is divided into the following modules:
Stereotyping, assumptions and prejudices
Plain English principles
Hard-to-understand forms of communication
Assessing the need for interpreting assistance
Working with interpreters and translators
The training program may be accessed at here or on the Judicial Council of Cultural Diversity (JCCD) website. An article about the training program by the Chair of the JCCD, the Honourable Chief Justice Wayne Martin AC, has been published in the June 2017 issue of the Judicial Officers’ Bulletin.