Equality before the Law Bench Book — Preliminaries

Section 5 — People with disabilities

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 information be made available to judicial officers, legal practitioners and court staff about seeking or making adjustments and supports and services for people with disability, and the circumstances in which they may be required. See especially the updated Practical considerations for judicial officers at 5.6 and ff for further information about supports and services for people with disability before and during legal proceedings.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) definitions of “mental health impairment” and “cognitive impairment” have resulted in extensive updates to Intellectual disabilities 5.3.4, Fitness to plead/criminal responsibility at 5.5.3 and Cognitive impairment at 5.3.7.

The revised Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), which is designed to communicate the essential characteristics of mental disorders, has been utilised to update Mental disorders at 5.3.6.

A new section Legal protections for people with a disability at 5.4 includes information about the Ageing and Disability Commissioner established under the Ageing and Disability Commissioner Act 2019 (NSW); the NDIS Quality and Safeguards Commission established to improve the quality and safety of NDIS supports and services; and the Disability Inclusion Act 2014 (NSW) which provides that each government department and local council must have a disability action plan.

Bromley v The King [2023] HCA 42, where the High Court noted that each of the expert psychiatrists accepted that a person with schizo-affective disorder could be found to be reliable if other evidence supported that person’s evidence, is included at Capacity at 5.5.

Section 6 — Children and young people

At 6.2.2 Criminal responsibility the case of BDO v The Queen [2023] HCA 16 has been added. Here, the High Court held that in some cases where it is proved a child had the capacity to know that an act was morally wrong, it may follow that the child is likely to know that to be the case. But whether this is so will depend upon the evidence in the particular case: BDO v The Queen at [22].

A new section has been added at 6.3.3.2 Principle of making “active efforts” . The “principle of active efforts” means making active efforts to prevent the child from entering out-of-home care, and in the case of removal, restoring the child to the parents, or if not practicable or in the child’s best interests, with family, kin or community: Children and Young Persons (Care and Protection) Act 1998, s 9A(2) .

It has been noted that at 6.4.3.3 Child sexual assault matters that the Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 amended the Criminal Procedure Act 1986 by inserting new Div 1A, extending Child Sexual Offence Evidence Pilot, with some amendments, to all District Courts in NSW.

Section 12 — Trauma-informed courts

At 12.6 Further information or help, the Women’s Trauma Recovery Centre has been added. This centre is a place for women to heal and rebuild lives after experiencing domestic, family, and sexual violence. Through an innovative and wrap-around approach, the Centre will support women to live independent and secure lives for the wellbeing of current and future generations.

At 12.7 Further reading, for subscribers to JIRS, the Intergenerational trauma resources has been added.

Section 1 — Equality before the law

Information has been updated at 1.3 — Perception, pronunciation and pronouns including the case of Charisteas v Charisteas (2021) 273 CLR 289, where the Court stated at [18] "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined”. Suggestions from the Federal Circuit and Family Court of Australia and The Association for continuing legal education (ACLEA) regarding preferred pronunciations, pronouns and how to avoid using outdated and offensive terms have also been added.

Section 2 — First Nations people

The importance of a Welcome to Country or an Acknowledgement of Country has been noted at 2.2.3 — Cultural differences. This acknowledges and pays respect to First Nations’ people intimate relationship with the land.

Section 3 — People from culturally and linguistically diverse backgrounds

This section has been extensively revised and updated with the assistance and guidance of Multicultural NSW.

Section 10 — Self-represented parties

Section 10 has been updated to include a discussion on “sovereign citizens” and pseudolaw. The sovereign citizen movement is a group of loosely affiliated individuals who are connected by a shared antagonism towards government and a convoluted and conspiratorial interpretation of the law. Self-identifying “sovereign citizens” believe that they possess an uncorrupted and true understanding of the legal system. According to this conception, individuals are “sovereign” and not bound by the laws of the country in which they live unless they waive those rights by accepting a contract with the government. A new section at 10.5 Sovereign citizens: further information contains some history and case law in relation to the increasing number of cases brought by litigants asserting the legal system doesn’t apply to them.

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. Multiple 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 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.

Section 7 — Women

This update includes material on the impact of COVID-19 on women’s employment trends, leadership, wages, superannuation and unpaid work; the caring and domestic work of women, and violence against women.

At 7.2.1.1 — Gender pay gap in wages and superannuation, has been updated to note that during the period of COVID-19 lockdowns and recovery, the Federal Government’s recovery package was directed to personal income tax cuts, investment tax breaks and a big spend on infrastructure, with more direct support flowing to the male-dominated construction and energy sectors. It has also been noted under Wages that the NSW Government now publish a Gender Equality Dashboard, which provides an accessible, timely source of data showing progress in key indicators of women’s social and economic outcomes (currently economic opportunity and advancement; health and wellbeing; and participation and empowerment. Under Superannuation, it is noted under the Federal Government’s early release scheme during the height of the pandemic, one in seven women were withdrawing a larger proportion of their superannuation to pay bills. This means that the gender superannuation gap is set to get even bigger for female workers who accessed the Government’s COVID early release super scheme.

At 7.2.1.3— Occupational segregation and workplace discrimination, a new section on Electoral representation has been added, noting the under-representation of women in Parliament.

The impact of COVID-19 on women’s unpaid workload is discussed at 7.2.1.4— Caring, domestic work and the mental load and at 7.5.1 — Violence against women there is a discussion regarding differing reports about the impact of social restrictions on domestic violence rates.

The case of Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 has been added at 7.3 — Sexual harassment.

At 7.5.4 — Technology-facilitated abuse, it is noted rectification orders are now available under s 91S of the Crimes Act 1900 in relation to image-based abuse. Where a court finds a person guilty of an offence of recording or distributing an intimate image without consent under ss 91P and 91Q of that Act, the court can make a rectification order requiring the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person. In addition, new commentary on Technology-facilitated domestic violence has been added to this section

A discussion of the Consent law reforms in 2022 has been added at 7.5.6 — Sexual assault, including new s 61HJ(1)(a) of the Crimes Act 1900 which has been introduced to address the “freeze” response where a person does not physically or verbally resist an assault.

The "manosphere" is an umbrella term referring to a number of interconnected misogynistic communities online. It encompasses multiple types and degrees of misogyny — from broader male supremacist discourse to men’s rights activism and "involuntary celibates" (incels). A new section has been added at 7.5.7 — Incels and manosphere-related violence.

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

Section 9 has been revised and updated to include reference at 9.1.1 Explanations and terminology — gender, transgender, transexual and non-binary people to update terminology such as gender identity and non-binary. In particular, the Modes of address at 9.6.1 has been updated to advise of a gender neutral title, which can be used as an alternative to the gendered honorifics Miss, Mrs, Ms, Mr. Mt/Mm, Mx (pronounced as “mix”) and which may be used for people who don't fit the gender binary and therefore don't feel that a gendered title fits their identity.

The Equality Before the Law Bench Book has been updated to include a new chapter titled “Trauma-informed courts”. Below is an outline of the new chapter.

Section 12 — Trauma-informed courts

There has been a growing awareness of trauma, including complex trauma and post-traumatic stress disorder, over the last 40 years. Trauma-informed practice and principles emerged from the mental health sector in North America. Investigations of traumatic stress and treatments developed from observations of male soldiers’ reactions to the horrors of the First World War but then waned until the Vietnam War when the experiences of Vietnam veterans began to be recognised as post-traumatic stress disorder (PTSD). The growing awareness of these principles has led to the development of a humane framework for health practitioners, and more recently, legal and other professionals and the judiciary, usually referred to as “trauma-informed practice”. Many courts have come to recognise that acknowledging and understanding the impact of trauma on court participants may lead to more successful interactions and outcomes. Courts that do not practice trauma-informed decision-making may inadvertently increase the level of trauma that people experience.

This new chapter examines the adverse physical and psychological health problems in adulthood that may arise due to unresolved early life trauma. It also looks at Trauma and its impact on particular groups, such as domestic and family violence victims, victims of child sexual abuse, children in out-of-home care; First Nations people; migrants, refugees and asylum seekers; people with disabilities; and LGBTQI people. There are practical considerations as to how to embed a trauma-informed practice and specific suggestions for trauma-informed judicial practices, sentencing considerations and a discussion of “trauma-informed courts” versus “solution-focussed courts”.

The chapter was developed by Commission staff and an expert Committee reviewed and provided feedback. The Committee comprised:

Section 2 — First Nations people

Information has been updated at 2.1 Some statistics including projections for the increase in the number of First Nations children in care in 2030 and the additional disadvantages borne by the Stolen Generations survivors and their descendants when compared with other First Nations peoples (see Care and protection).

New research by the Australian Institute of Health and Welfare regarding outcomes for First Nations children under 15 who lived in the same house as a member of the Stolen Generation and the intergenerational effects of removal from family that occurred for the Stolen Generations up to 1970 has been included at 2.2.2 Intergenerational/transgenerational trauma. Also included in this chapter is a reference to the Yoorrook Justice Commission, which commenced hearing evidence in March 2022 and will make a formal record of two centuries of colonisation and oppression in Victoria.

A new section on The cultural importance of Aboriginal and Torres Strait Islander languages has been added at 2.2.4. This follows the enactment of the Aboriginal Languages Act 2017 (NSW), with the aim of addressing the loss of many of Australia’s First Nations’ languages.

Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27, regarding whether a Local Court or Children’s Court has power to order a hearing before a female magistrate has been added at 2.2.6 The possible impact of these cultural difference in court.

A new section on the Walama List Sentencing Procedure pilot operating in the NSW District Court commencing 31 January 2022 has been added at 2.2.8 The Walama List in the District Court. Another new section has been added at 2.2.9 Protocol for dealing with inquiries into deaths of First Nations people, following Recommendation 8 of the final Report of the Royal Commission into Aboriginal Deaths in Custody.

The case of Milson v Milson [2020] NSWSC 919, discussing the wishes of a deceased to be cremated and the deceased’s mother’s wishes that the deceased be buried on country has been added at 2.3.5 First Nations burial rights.

A new section has been added at 2.3.6 Adoption proceedings, which discusses the Adoption Act 2000 and the requirements that the Supreme Court of NSW apply the Aboriginal and Torres Strait Islander Child Placement Principles, specified in ss 35 and 39, in making an adoption order if the child the subject of the order is an “Aboriginal child” or “Torres Strait Islander child” (defined in s 4).

Hoskins v R [2021] NSWCCA 169 and the Report, “The significance of culture to wellbeing, healing and rehabilitation” (2021) by Vanessa Edwige and Dr Paul Gray have been added at 2.3.10 After Fernando.

Section 4 — People with a particular religious affiliation

Reference is made at 4.2.3.2 Holy books and scriptures, to a discussion around the different textual interpretations of the Qur’an from an article by B Rauf, “After R v Bayda; R v Namoa (No 8)” (2019) 31(9) JOB 81. Elzahed v Kaban [2019] NSWSC 670 has been added at 4.2.3.5 Relevant practices as an example of disrespectful behaviour in court and the elements of the offence under s 200A District Court Act 1973. A new paragraph 4.2.7 Religious vilification has been added. This discusses the lack of prohibition on religious discrimination and notes the incidence of religious vilification associated with particular events. Details of where a person may notify of particular religious vilification are also given.

Section 8 — Lesbians, gay men and bisexuals

Information has been updated at 8.1 Some statistics following new and updated research materials, such as the NSW Legislative Council’s Standing Committee on social issues final report into gay and transgender hate crimes in May 2021 and the LGBTIQ+ Health Australia’s 2021 update titled “Snapshot of mental health and suicide prevention statistics for LGBTIQ+ people”. This includes new information on the issues faced by LGBTIQ people in regional, rural and remote communities. Masson v Parsons (2019) 266 CLR 554 and ND v BM [2003] FamCA 469, both dealing with the legal recognition of donor parents, have been added at 8.3.2 Same sex relationships. A new report by ANROWS, “Crossing the line: lived experience of sexual violence among trans women of colour from culturally and linguistically diverse backgrounds in Australia. Key findings and future directions” has been added at 8.7 Further reading.

Section 11 — Older people

It is noted at 11.2 Elder abuse that under s 15A of the Ageing and Disability Commissioner Act 2019, which commenced on 23 June 2021, it is an offence for a person to take detrimental action against an employee or contractor who assists the Ageing and Disability Commissioner with a report about abuse, neglect or exploitation of an adult with a disability or an older adult. 11.2.1 Abuse and neglect in residential care has been updated following the 2019-20 Report on the operation of the Aged Care Act 1997. New commentary on the Serious Incident Response Scheme (SIRS), which commenced 1 July 2021, has been included. Under the 2021 amendments to the Aged Care Act 1997 (Cth) which introduced the SIRS, the definition of a “reportable incident” was inserted, which is broader than the previous “reportable assault”. New reporting requirements as part of SIRS mean that residential aged care providers will be required to report and manage all serious incidents which impact on the safety and well-being of consumers, with the range of serious incidents that are reportable under SIRS being broader than those under previous compulsory reporting requirements. The statistics in relation to sexual abuse in residential care have also been updated.

At 11.2.1 Succession/financial/capacity abuse, the following articles have been added regarding family accommodation arrangements: P Lane, “Reform in elder law: granny flats” (2018) 92 ALJ 413; L Kyle, “Out of the shadows — a discussion on law reform for the prevention of financial abuse of older people” (2013) 7 Elder Law Review, Article 4; T Somes, “Identifying vulnerability: the argument for law reform for failed family accommodation arrangement”, (2020) 12 Elder Law Review, Article 7.

It is noted at 11.3.4 Older persons as perpetrators of crime that Australia does not have specialist aged care providers for people who have committed serious criminal offences, and few private providers are keen to take them on. That leaves many older prisoners, particularly older sex offenders, in prison long after their earliest release date. This in turn leaves prison hospitals to operate as proxy aged care providers. The 2020 national strategic plan developed by the Law Council of Australia (drawing upon the expertise of the Constituent Bodies, the Law Council’s rural, regional and remote (RRR) Committee, and the Justice Project Report) regarding rural, regional and remote communities notes that inadequate technological infrastructure in courts in RRR areas is a key contributing factor to RRR access to justice problems that must be addressed. Commentary on this issue has been added at 11.4.1 Barriers to justice.

Choi v NSW Ombudsman (2021) 104 NSWLR 505 has been added at 11.5.1.2 Older people and the NSW Guardian ad Litem panel. This case discusses the valid appointment of a guardian ad litem under s 45(4) and (6) of the Civil and Administrative Tribunal Act 2013.

Section 1 — Equality before the law

J Elek and A Miller, The evolving science on implicit bias, State Justice Institute and the National Centre for State Courts, Virginia, USA, March 2021 and Equality Australia have been added at 1.6 — Further reading.

Section 2 — Aboriginal people

A new report by V Edwige and P Gray, "Significance of culture to wellbeing, healing and rehabilitation” published in 2021 via the Bugmy Bar Book has been added at 2.5 — “Further Reading”.

Section 6 — Children and young people

This chapter has been extensively revised and updated with cases and legislation, new and updated statistics and new sections as follows:

At 6.2.1 Competence to give evidence, the case of Gray v R [2020] NSWCCA 240 has been added in relation to the question of competence and the proper consideration of s 13 of the Evidence Act 1995. At 6.2.2 Criminal responsibility, RP v The Queen (2016) 259 CLR 641 and BC v R [2019] NSWCCA 111 have been added. These cases discuss that the presumption of doli incapax cannot be rebutted merely as an inference from the doing of the acts constituting the offence, although the “circumstances of the offending” may be capable of rebutting the presumption without evidence of the accused’s contemporaneous character or maturity. A discussion of Victim Impact Statements (VIS) has been added to Requirement to obtain the views of children and young people at 6.2.4, including the case of AC v R [2016] NSWCCA 107, where the court was entitled to discount a letter purporting to be a VIS, where the under-age victim’s letter asked for her return to an abusive relationship and sexual offending. This could not sensibly be understood as evidencing either maturity, forgiveness, or a conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial.

A new section on Child care and protection has been added at 6.3. Statistics regarding children in NSW receiving child protection services appear at 6.3.1 and a discussion of Out of home care (OOHC) appears at 6.3.2.

Aboriginal and Torres Strait Islander children are over-represented in OOHC in NSW, with the number of children entering care increasing since 2015-16. At 6.3.3, a discussion of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) includes the operational framework adopted by the Department of Communities and Justice, the Aboriginal Case Management Policy. This policy is stated to provide a framework for Aboriginal-led and culturally embedded case management practice to safeguard the best interests of Aboriginal children and young people. The purpose of the ATSICPP, enshrined in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act 1998, and s 35 of the Adoption Act 2000, is to ensure Aboriginal and Torres Strait Islander children remain connected to their family, community, culture, and country. The fundamental purpose of the ATSICPP is to enhance and preserve Aboriginal children’s sense of their Aboriginal identity and ensure an Aboriginal child’s right to be raised in their own culture. The ATSICPP also recognises the importance and value of family, extended family, kinship networks, culture and community, in raising Aboriginal children and the role of Aboriginal decision-making. The importance of ensuring that the ATSICPP is adhered to is exemplified in the link between the over-incarceration of Aboriginal people and involvement with the OOHC system, which is discussed at 6.3.3.1 “Cross over kids”. The Family is Culture review report ventilated concerns about the late identification of Aboriginal children and the de-identification of children resulting in the ATSICPP not being applied to them. At 6.3.3.2 Issues associated with the identification/de-identification of Aboriginal Children, the cases of Fischer v Thompson (Anonymised) [2019] NSWSC 773 and Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 are discussed.

At 6.4.8 Sentencing, other decisions and judgment or decision writing, CO v DPP [2020] NSWSC 1123 has been added. In that case, it was held that a failure to obtain a background report in accordance with s 25 Children (Criminal Proceedings) Act 1987 renders the sentence invalid.

A new Appendix B — Interviewing principles to guide communication with vulnerable witnesses, including children and young people, based on the work of Professor Martine Powell, has been added.

Section 7 — Women

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 leads to poverty and homelessness in retirement. This is often a result of women’s cumulative experiences of economic disadvantage over their lifespan. 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 from the enactment of the Sexual Discrimination Act 1984, in a landmark report, 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:

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 differences, regarding 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 assent being proclaimed to 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 reading. This article focusses on the intersection of elder abuse with the criminal law relating to physical harm and unlawful death in NSW.

Section 2 — Aboriginal people

This chapter has been significantly revised, with updated cases, statistics and new sections on intergenerational trauma, the national framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women and Justice reinvestment.

The legacy of historic dispossession and dislocation from country, culture and family, increasingly acknowledged and characterised in medico-legal literature and governmental policy as intergenerational trauma, is set out at 2.2.2. This section also discusses the Uluru Statement from the Heart, which has called for a constitutionally enshrined First Nations voice to federal Parliament and a Makarrata Commission to oversee agreement-making between First Nations people with federal and State Governments and to provide a forum for truth telling about history. The discussion on cultural differences has also been updated.

A discussion on the National Framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women has been added at 2.2.4 and a discussion on Justice reinvestment and the OCHRE plan at 2.2.5.

The case of Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, in particular at [21]–[27], which held that great care must be exercised in making demeanour findings where a witness is from a different cultural or ethnic background to that with which the trial judge is familiar has been added at 2.3.3.3.

The case of Re Estate Jerrard, Deceased (2018) 97 NSWLR 1106, which held that the Indigenous concept of “family” is important, if not decisive, in determining “the laws, customs, traditions and practices” of an Indigenous community, has been added at 2.3.5 — Indigenous estate distribution orders.

At 2.3.9 — The Fernando principles, the recent decision R v Irwin [2019] NSWCCA 113 has been added, where the court held that it is not necessary to require a causal link between a background of social deprivation and abuse and the offending behaviour as a necessary condition to permit mitigation of sentence: at [116].

Section 1 — Equality before the law

This section has been revised and updated. Further, new commentary at 1.4.1 Unconscious bias has been added. This refers to research into how mental short cuts, known as heuristics, affect the way decisions are made. The demeanour and appearance of a witness has always been a part of the decision making process by judicial officers, however this tendency has been questioned as supporting unconscious bias.

At 1.6 Further Reading a list of articles on unconscious bias have been added.

Section 10 — Self represented litigants

This chapter has been significantly revised and updated with additional cases and articles regarding self-represented litigants.

The text at 10.3.1 Before the court appearance has been updated to include Nobarani v Mariconte (2018) 92 ALJR 806. The trial judge’s failure to make directions for the taking of any steps, or filing or service of any documents by the self-represented appellant meant the appellant was denied the opportunity to cross-examine a significant witness; locate another witness; and call an expert witness and led to the appellant being denied procedural fairness. R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834 has been added. Representation of the accused by competent counsel is not only a requirement of a fair trial at law, but is also essential to efficiency: at [40].

The text at 10.3.2 At the start of court proceedings has been revised to include Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. The court observed at [56] that the duty to ensure a fair trial or proceeding to an unrepresented criminal defendant is greater than that owed to a civil litigant.

The text at 10.3.3 The trial judge’s role has been revised to include Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. A trial judge may be required to explain the consequences of a self-represented party applying for an adjournment or that the judge recuse him or herself in civil proceedings, in terms of costs and potential future proceedings. Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) VR has been added in which procedural fairness was not afforded due to the trial judge’s failure to warn the unrepresented parties that their failure to give evidence could give rise to a Jones v Dunkel inference.

In 10.3.4.3 Final submissions reference has been included to the practice that the Crown does not give a closing address in criminal cases where an accused is unrepresented: MS v R [2017] NSWCCA 252 at [68].

The section on Further information and help at 10.5 has been revised and updated and new articles added to 10.6 Further reading.

Section 13 — Index and Tables

The index, table of cases and table of statutes have been updated to include the changes in update 14.

Equality before the law Bench Book wins international award

The Association for Continuing Legal Education (ACLEA) has awarded the Judicial Commission one of only 10 annual awards granted to competitors representing more than 300 organisations.

An Award for Outstanding Achievement was given to the Commission for the Equality Before the Law Bench Book in the Public Interest category.

ACLEA members are professionals in the fields of continuing legal education and legal publishing. Its annual ACLEA’s Best Awards are highly competitive and winning projects represent the highest level of achievement for the staff and volunteers involved.

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 often refers to people up to 25 years apart in age. There can be a vast difference 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 information and advice about:

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

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.

Section 2 — Indigenous people

2.1 Statistical information has been updated. Information about the Youth Koori Court is added at 2.3.1. A new section is added at 2.3.5 to include information about Indigenous Estate Distribution Orders and the decisions Re Estate Wilson, Deceased (2017) 93 NSWLR 119 and Estate of Mark Edward Tighe [2018] NSWSC 163 which considered and applied Pt 4.4 of the Succession Act 2006 (NSW).

Section 3 — Ethnic or migrant backgrounds

Section 3 has been updated to include:

Section 4 — Religious affiliations

Section 4 has been updated to include revisions to the following at 4.2.3.5:

Reference to the “Explanatory note on the judicial process and participation of Muslims” has been added at 4.4.2 to clarify that an oath for a Muslim may be administered on the Holy Quran.

The reading list in Section 4 has been updated to include the Explanatory note and Judicial Officers’ Bulletin article about the Explanatory note at (2018) 30 JOB 18.

Section 5 — People with disabilities

Information on fetal alcohol spectrum disorders at [5.2.2.8] has been updated to refer to LCM v State of WA (2016) 262 A Crim R 1 in which the West Australian Court of Appeal considered the medical condition of foetal alcohol spectrum disorder (FASD) and how it could be relevant in sentencing proceedings. The court recognised that FASD is a mental impairment and as such engaged sentencing principles relating to an offender’s mental condition.

Section 6 — Children and young people

Section 6 has been updated to:

Section 4 — People with a particular religious affiliation

Section 4 has been updated to include revisions to the following:

Section 5 — People with disabilities

Section 5 has been updated to include revisions to the following:

Section 8 — Lesbians, gay men and bisexuals

Section 8 has been updated to include revisions to the following:

Section 9 — Sex and gender diverse people

Section 9 has been updated to include revisions to the following:

Section 13 — Index and Tables

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 11.

Section 6 has been updated to include the following:

[3] People from culturally and linguistically diverse backgrounds

Section 3 “People from culturally and linguistically diverse backgrounds” has been substantially revised to include the following:

[5] People with disabilities

Section 5 “People with disabilities” has been updated to include the following:

Index

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 9.

[2] Aboriginal people

Update 8 to the Equality before the Law Bench Book includes a revised and renamed Chapter 2 “Aboriginal people”. Chapter 2 is now called “Aboriginal people” to reflect the fact that the original people of NSW are Aboriginal.

The chapter includes the most recent statistical data derived from the Australian Bureau of Statistics, the NSW Bureau of Crime Statistics and Research, and the COAG Reform Council’s recent report to the Australian Government, “Indigenous Reform 2012–13: Five years of performance”. Information about language and communication has been reviewed and updated in light of Dr Diana Eades’ recently published text Aboriginal ways of using English, Aboriginal Studies Press, 2013.

The Appendix outlining the Fernando principles has been updated to take into account the High Court’s decisions in 2013 in Bugmy v The Queen (2013) 87 ALJR 1022 and Munda v Western Australia (2013) 87 ALJR 1035. The High Court confirmed that individualised justice does not require a different approach to sentencing Aboriginal offenders. However, many of the Fernando principles recognise that where an offender’s abuse of alcohol reflects the environment in which he or she was raised, this should be taken into account as a mitigating factor. The High Court in Bugmy also recognised that the effects of profound deprivation do not diminish over time and should be given full weight in a sentencing decision.

Sections 3 and 7 updated.

Sections 4, 5, 8, 9, 10 updated.

Sections 1, 2, 3, 6 updated.

Section 2 updated.

Section 3 updated.

Sections 8 and 9 updated.

Original compilation.