Equality before the Law Bench Book April 2025 update

The following material has been revised and updated:

Section 1 — Equality before the law

A new section Communication at 1.3 discusses the importance of clear and effective communication in judicial settings, to ensure the accessibility and fairness of legal processes.

Section 2 — First Nations people

• Information under Some statistics at 2.1 has been updated to more accurately reflect the experiences of First Nations peoples, particularly regarding employment, health, violence, and prosecutions, bail and imprisonment. BOCSAR and census data have been amended to present the most recent statistical evidence.
• The insertion of The importance of culture and cultural safety as a source of healing at 2.2.4 discusses the effect of intergenerational and structural trauma in First Nations communities on individual interactions with the legal system, and the significance of cultural safety to empower First Nations peoples and mitigate harm. The adverse consequences of institutionalisation are illustrated by Shields and Ellis’ expert report, which studies the psychiatric impacts of systems like youth detention and out-of-home care on First Nations peoples. The report reflects how patterns of behaviour and physical reactions often manifest in response to confinement, and is extensively referenced throughout the chapter. Practical harm reduction methods referenced at 2.2.4 include the use of an Indigenous Liaison Officer or diversionary programs, which aim to limit cultural wounds induced by involvement with legal proceedings.
• At 2.2.8 Justice reinvestment and the OCHRE plan Operation Mantus has been added to highlight systemic issues with police conduct regarding arrest and investigation.

Section 4 — People with a particular religious affiliation

The chapter has been revised at various points to provide more accurate information on religious practices and traditions, as well as to include updates to legislation regarding religious vilification and “hate crimes”.

• Significant additions have been made to Religious vilification and “hate crimes” at 4.2.7 in accordance with the introduction of Pt 4BA to the Anti-Discrimination Act 1977 (NSW), which amended the Act to include specific reference to religious vilification as unlawful: s 49ZE. The section was further updated to include the newly created offence under s 93Z Crimes Act 1900 (NSW) of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status, as followed the Commonwealth’s amendment of the Criminal Code Act 1995 (Cth) which created the offence of advocating force or violence against groups: ss 80.2A and 80.2B.
• The population data under Some statistics at 4.1 have been amended to reflect trends from the most recent census.
• At 4.2.3.1, a more extensive explanation of the Islamic teaching of Jihad has been added, to provide greater understanding of the Muslim tradition of anti-violence.

Section 5 — People with disabilities

• Information on Legal protections for people with a disability at 5.4 has been updated to consolidate relevant legislation and legal obligations at an international, federal and state level. The legal framework has regard to discrimination and “hate crime” offences, the provision of necessary supports for people with disabilities, and the economic, social and legal inclusion of people with disabilities in the community.
• The chapter has been extensively revised and updated in response to Recommendation 8.11 in the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) which recommended that courts should consider modification of the trial process and ensure the defendant receives assistance to facilitate understanding and effective participation. Conceptions and range of disabilities at 5.2.2 has been updated to provide greater perspective on how medical and social models of disability inform societal responses to, and interactions with, people with disabilities. The information contained in this section informs the remainder of the chapter, as it reflects how people with disabilities should be assisted as far as reasonably practicable to participate on an equal basis to others in legal proceedings.
• Autism spectrum condition at 5.3.10 and Attention Deficit Hyperactivity Disorder (ADHD) at 5.3.11 have each been added under Disability types and intersectionality, providing guidance on how to conduct inclusive legal proceedings using practical adjustments. Each section also contains information on acceptable terminology which may be used, and the specifics of particular traits and severities of each condition. Reasonable adjustments to proceedings have also been added for people with Intellectual disabilities at 5.3.5.
• A section has been added on Witness/communication intermediaries at 5.6.2 which emphasises the importance of communication adjustments in legal proceedings to ensure genuine and effective participation. The Criminal Procedure Act 1986 (NSW) as amended by the Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 (NSW) currently only allows for the use of an intermediary for children under 16 years, or over 16 years with a cognitive impairment or communication disability.

Section 6 — Children and young people

• An extensive section on The witness/communication intermediary has been added at 6.4.5 with detail on the role of witness and communication intermediaries throughout the judicial process, and specific communication aids that may be recommended to assist in proceedings. Witness intermediaries were introduced under the Child Sexual Offence Program (CSOEP) by the legislative framework of the Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023, and only applies to child sexual assault matters.
• Appendices A–C have been inserted to provide practical guidance and instruction on how to effectively communicate with children ages 4–11 and 12–16 at 6.9, as well as a comprehensive checklist of discussion points at 6.10 for matters to be determined at ground rules hearings including a Ground Rules Hearing checklist at Appendix C.

Section 8 — Lesbians, gay men and bisexuals

• Information has been updated under Some statistics at 8.1 to reflect more recent population data on LGBTQIA+ identification, noting the impact of experiences of stigma, prejudice and discrimination on the health outcomes of LGBTQIA+ people. The section has also been updated to include reference to the Sackar Special Commission of Inquiry into LGBTIQ hate crimes, which was established to examine the cultural and investigative deficiencies regarding 34 suspicious deaths of LGBTQIA+ people.
• A new section Legal protections has been inserted at 8.3.3, with a consolidated summary of state and federal legislation relevant to the protection of LGBTQIA+ people on various grounds. The most recent adjustments to the legal framework reviewed in the section are amendments enacted by the Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW), and the introduction of the Conversion Practices Ban Act 2024 (NSW), which created the offence of engaging in conversion practices to change or suppress a person’s sexual orientation or gender identity. The section also discusses the historical context of laws targeting the LGBTQIA+ community, including those which defined homosexuality as grounds for incarceration.
• Practice guidelines concerning language and terminology in legal proceedings, including correct use of pronouns and pronunciation of names, has been included at 8.5.1 and 8.5.2 with reference to District Court General Practice Note 1 and Supreme Court Practice Note SC Gen 22.

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

Terminology has been changed throughout the chapter to generally remove the term “transsexual” unless required, with preference for language such as “transgender”. Phraseology to describe intersex status has also been updated to include new descriptors at 9.3.1.

• A new section Legal protections and recognition has been added at 9.4, which surveys the effect of amendments by the Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW) to applications to alter the record of a person’s sex: see 9.4.1.
• State and federal protections have also been integrated at 9.4.2 with specific reference to legislation for the equality and protection of the LGBTQIA+ community such as the Equality Legislation Amendment (LGBTIQA+) Act 2024, with particular focus on its applicability to intersex and transgender people.