Equality before the Law Bench Book — Update 16 published

Section 1 — Equality before the law

This section has been updated at 1.2 — The diversity of the NSW population to include statistics from the report by the National Centre for Economic and Social Modelling, which shows that more than 888,000 people, or 13% of the NSW population live in poverty, with children, single women, Aboriginal and Torres Strait Islanders and those with a disability the most likely to be living in economic disadvantage. This report provides mapping of NSW to identify the areas with the lowest and highest rates of economic disadvantage.

Section 2 — Aboriginal people

The case of Love v Commonwealth of Australia [2020] HCA 3 has been added at 2.2.1 — Aboriginal people, Torres Strait Islander people, Kooris, Murris and other groups, where the High Court, by majority, held confirmed that an Aboriginal Australian, despite their place of birth, cannot be considered an alien under s 51(xix) of the Constitution.

Northern Territory v Griffiths [2019] HCA 7 at [230] has been added at 2.2.2 — Intergenerational/ transgenerational trauma, where loss of connection to land is acknowledged as permanent and intergenerational.

Northern Territory v Griffiths has also been added at 2.2.3 — Cultural differencesregarding the description of the lay and anthropological evidence of connection to the land and the effects, under Aboriginal laws and customs, when country is harmed.

The case of White v Williams (2019) 99 NSWLR 539, involving an urgent application for a declaration that a person could make burial arrangements for an Aboriginal deceased who had died intestate, where there were competing claims about where he should be buried, has been added at 2.3.5 — Aboriginal burial rights and estate distribution orders.

The Australian Institute of Health and Welfare report, Children living in households with members of the Stolen Generations, 2019 and S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32 JOB 21, have been added to 2.5 — Further reading.

Section 11 — Older people

Further information regarding Legal Aid Policy Bulletin 2019/12, where the Legal Aid NSW Board approved changes to eligibility policies that clarify that legal aid is available to people who are experiencing, or are at risk of, elder abuse has been added at 11.4.1 — Access to justice.

The case of Spink v Flourentzou [2019] NSWSC 256 has been added at 11.2.3 — Succession/capacity/financial abuse as an example of a court-ordered equitable remedy for an older person where there is a failure of joint endeavour in the acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame.

Commentary at 11.2 and 11.4.1 has been updated to reflect the commencement of the Ageing and Disability Commissioner Act 2019.

Details of the Age Care Quality and Safety Commission have been added to 11.6 — Further information or help.

A report by R Kaspiew et al, Elder Abuse National Research – Strengthening the Evidence Base: Research definition background paper has been added under “Reports” at 11.7 — Further reading.

An article by J Anderson on “Vulnerability of elders to physical harm and death: criminal law responses” has been added under “Articles” at 11.7 — Further readingThis article focusses on the intersection of elder abuse with the criminal law relating to physical harm and unlawful death in NSW.