Equality before the Law Bench Book Update 23 published

Section 2 — First Nations people

Information has been updated at 2.1 — Some statistics to reflect new data including from the 2021 census and updated data published by the Australian Institute of Health and Welfare in its Australia’s welfare 2021 report.

At 2.3.2 — Bail new references have been added, including to sections of the Bail Act 2013 and to cases illustrating relevant considerations around the granting of bail: R v Connor Fontaine (a pseudonym) [2021] NSWSC 177; Gray v R [2020] NSWSC 390; R v Brown [2013] NSWCCA 178; R v Alchin [2015] NSWSC 2112; and DPP(NSW) v PH [2022] NSWSC 1245. New chapter of the Bugmy Bar Book, “Significance of funeral attendance and Sorry Business for Aboriginal and Torres Strait Islander peoples”, is also referred to.

At 2.3.5 — First Nations burial rights and estate distribution orders recent South Australian case McKenzie v McKenzie [2023] SASC 71 has been added in a footnote for its comments on the weight to be given to the wishes of the deceased’s children.

Revisions at 2.3.8 — Sentencing decisions — points to consider include references to ALRC report Pathways to justice – inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples and to new chapters of the Bugmy Bar Book.

At 2.5 — Further reading has been updated to include the new sources referred to throughout Section 2.

Section 7 — Women

Statistics have been updated throughout Section 7, including at 7.2.1.1 — Gender pay gap in wages and superannuation; 7.5 — Violence against women; 7.5.6 — Sexual assault; and 7.6 — Women and criminal law.

At 7.3 — Sexual harassment commentary has been added on the new provisions in the Sex Discrimination Act 1984 (Cth) (following commencement of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)), including ss 47B and 47C which impose a positive duty on an employer/person conducting a business or undertaking to eliminate certain discriminatory conduct. The Act also confers new powers (see Div 4A and 4B Australian Human Rights Commission Act 1986 (Cth)) on the Australian Human Rights Commission to inquire into possible issues of systemic unlawful discrimination and research and assess compliance with the new positive duty.

At 7.5.3 — Coercive control commentary on the Crimes Legislation Amendment (Coercive Control) Act 2022 (expected to commence mid-2024) has been added. The Act amends the Crimes Act 1900 to create a new offence in NSW relating to abusive behaviour towards both current and former intimate partners, and amends the Crimes (Domestic and Personal Violence) Act 2007 to provide a new definition of domestic abuse. Also added is reference to the Queensland Domestic and Family Violence Protection (Combating Control) and other Legislation Amendment Bill 2022.

The resources at 7.8 — Further information or help and 7.9 — Further reading have been updated.

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

At 9.2 — Trans and gender diverse and transsexual people commentary has been added on the decision not to include more questions on variations in sex characteristics or gender in the 2021 census. Statistics have also been updated to refer to a recent peer reviewed study on the health and well-being of transgender Australians published by LGBT Health, and a new study from LGBTIQ+ Health Australia on mental health.

At 9.6.1 — Mode of address an article by Canadian Judge K McKenzie, “Language in the courtroom: transgender awareness” has been included. In the article, Judge McKenzie outlines the practice directive adopted in his court and how it facilitates respectful communication with all people appearing in court including transgender and gender diverse people.

Section 11 — Older people

At 11.2.3 — Succession/financial/capacity abuse and 11.5.1 — Legal capacity references to the Law Council of Australia’s “Best practice guide for legal practitioners in relation to elder financial abuse” and its attachment “Best practice guide for legal practitioners on assessing mental capacity” have been added. These guides aim to assist legal practitioners to mitigate the risks of financial elder abuse and provide guidance on obligations in relation to assessing a client’s mental capacity.

Also added at 11.5.1 — Legal capacity is case law relating to the presumption that capacity exists for all legal activities except the making of wills and how courts have interpreted such presumptions.