Equality Before the Law Bench Book Update 13 published

Section 11 — Older people

A new section on Older people is published with this update. Older people are an extremely diverse group, as this term can refer to people with an age difference of 25 years apart, or more. There can be a vast difference in circumstances between those at 65 and those at 85.

The chapter is designed to assist judicial officers with any issues that may arise in the courtroom when older people appear as plaintiffs, defendants or witnesses.

Specifically the chapter provides the following information:

  • recent statistical data on older people in NSW, including population, employment, health, income, care and assistance, grandparents, digital confidence, geographic isolation, mobility and cultural and linguistic background at 11.1 and ff
  • elder abuse at 11.2. Elder abuse is defined and discussed, including abuse and neglect in residential care, family and intergenerational violence, and financial and capacity abuse
  • older persons and crime at 11.3 as victims and witnesses of crime as well as perpetrators of crime
  • potential barriers to accessing justice at 11.4 and ff
  • legal capacity and competence of older people at 11.5.1 and ff
  • best practice in communication with older people at 11.5.2 and ff
  • timing of proceedings, breaks and adjournments at 11.5.7
  • detailed list and contact details of organisations and community agencies that can provide information or expertise about older people at 11.6
  • detailed further reading list at 11.7.

Commission staff have developed the chapter and an expert committee reviewed and provided feedback. The Committee comprised:

  • Associate Professor Nola M Ries, Research Centre, Faculty of Law, University of Technology, Sydney
  • Dr Lise Barry, Macquarie Law School, Sydney
  • Adjunct Associate Professor Sue Fields, School of Law, Western Sydney University, Sydney
  • Mr Richard McCullagh, Solicitor, Patrick McHugh & Co Pty Ltd
  • Ms Jennifer Smythe, Assistant Principal Solicitor, Seniors Rights Service, Sydney.

Section 9 — Gender diverse people and people born with diverse sex characteristics

This section has been revised and updated by Morgan Carpenter, co-executive director of Intersex Human Rights Australia, and a graduate and PhD candidate in bioethics at Sydney Health Ethics in the Faculty of Medicine and Health, University of Sydney, Australia. It has been renamed to reflect the fact that there is a difference between gender diversity and people born with diverse sex characteristics. It has also been updated to include the case of Tien-Lao and Tien-Lao [2018] FamCA 953, where the Family Court stated at [29]: “… it is now accepted that gender is not a binary construct: either male or female … The concept of gender is fluid and contemporary understanding of the fluidity means that gender differences are now better regarded as lying along a continuum, rather than presenting a polarising election between two stark alternatives.”

9.3 has been updated to include NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490, where the High Court affirmed that the NSW BDM has the power to register someone’s sex as “non-specific” as the Act recognises that a person may be other than male or female.

Four additional articles have been added at 9.8.