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Hennessy, Peter --- "NSW Law Reform Report" [1996] ALRCRefJl 15; (1996) 69 Australian Law Reform Commission Reform Journal 47


ALRC Reform 69

NEW SOUTH WALES LAW REFORM COMMISSION

Sentencing
Intellectual disability
Administrative Appeals Tribunal
Human Rights
Defamation

Major law reform developments are on the agenda for New South Wales in 1996. Some of these relate to work undertaken by the NSW Law Reform Commission (NSWLRC) (eg defamation), some are relevant to current NSWLRC projects (eg sentencing, anti-discrimination) while others involve implementation of undertakings given in the lead up to the 1995 State election (eg industrial relations, privacy and data protection and a new Administrative Appeals Tribunal).

The Wood Royal Commission into the NSW Police Service is now well into its second year. Significant changes of personnel at the upper levels of the NSW Police have already occurred and the government has accepted the Royal Commission's Interim Report to set up a new body, the Police Corruption Commission, to hear complaints against the Police.

Sentencing

A key issue in the lead up to the State election in March 1995 was law and order, one aspect of which was the State's sentencing laws. Shortly after the election the NSWLRC was requested to undertake a comprehensive review of sentencing.

The NSWLRC has just released a Discussion Paper which contains proposals for reform and raises issues for further consideration. One proposal suggests the repeal of s 5(2) of the Sentencing Act which is regarded as the cornerstone of the 'truth in sentencing' aspect of the Act. The paper also considers the need for the rationalisation and consolidation of sentencing laws, reviews the current law relating to the purposes and principles of sentencing and assesses the adequacy and use of both custodial and non-custodial sentences.

In addition to the NSWLRC's review, the Government has proceeded with legislation to reintroduce mandatory life sentences for specific 'horrific' crimes, including serious drug related offences. This legislation implements an undertaking given in the lead up to the last State election.

The Government has also announced that it will introduce a new statutory Charter of Victims' Rights. This Charter will require Government agencies to uphold a victim's right to be treated with courtesy, compassion and respect. A Victims of Crime Bureau will also be established within the Attorney General's Department to coordinate information, support and referral services to crime victims and co-ordinate the delivery of victim support services, provided by government agencies. It will also assist eligible victims to make applications to the Victims Compensation Tribunal.

The Government has also foreshadowed legislation relating to victims' impact statements. The NSWLRC's sentencing paper proposes that victim's impact statements may be presented to a court and taken into account in relation to sentencing, but only in non-homicide cases. This proposal has not been accepted by the Government.

Intellectual disability

As part of its comprehensive inquiry into people with an intellectual disability within the criminal justice system, the NSWLRC recently released Two Rural Courts, a Research Report which sets out the details of a survey carried out in the local courts at Bourke and Brewarrina. The study was undertaken by Associate Professor Susan Hayes, Head of the School of Behavioural Sciences in Medicine at Sydney University.

All persons appearing before the courts on sitting days in July 1995 were asked to undertake a brief intelligence test and an abbreviated mental state examination. The purpose was to determine the number of people with an intellectual disability who appeared before the courts on those days.

Professor Hayes undertook a similar study for the NSWLRC in 1993 at four NSW local courts: Newtown, Liverpool, Dubbo and Wagga Wagga. That study found that one in four (23%) of the people facing criminal charges in those courts demonstrated significant intellectual deficits.

The more recent study indicates even higher figures. More than one third (36%) of the persons appearing before these courts were intellectually disabled on the basis of the brief intelligence test and a further 20% were of borderline intellectual ability. The conclusion reached was that more than half the persons interviewed would have had serious difficulties in understanding the court processes.

The report raises important questions about the way the criminal justice system deals with people with an intellectual disability. The NSWLRC's final report due in August 1996 will make recommendations aimed at alleviating these difficulties, not only in relation to appearances in court, but also in dealings with the police and in the correctional system.

Administrative Appeals Tribunal

The establishment of an Administrative Appeals Tribunal for NSW was recommended as long ago as 1972 in the NSWLRC's Report No. 16 Appeals in Administration. That report led to the establishment of the Ombudsman's Office in 1974, but the recommendation for an AAT did not come to fruition. It now appears that the Government will introduce legislation for a NSW AAT during 1996 as part of its commitment to ensure open and accessible government.

Human Rights

The Attorney General, the Hon. Jeff Shaw QC announced on 5 April 1996 that a new Human Rights and Justice Commission would be established by merging the Anti-Discrimination Board and the Privacy Committee. Mr Chris Puplick, currently head of these two bodies will be take charge of the new Commission. New privacy and data protection legislation will be introduced. According to the Attorney General:
NSW would become the first State to back privacy rights with the crucial protection of comprehensive enforcement, provisions and legislative sanctions. ... public officials who use information corruptly will face criminal sanctions of imprisonment and/or a fine. The legislation will also comply with the European Council of Ministers, Personal Data Protection Directive. Cases that cannot be resolved within the Human Rights and Justice Commission will be heard by the new Administrative Appeal Tribunal which will be able to grant enforceable remedies including compensation up to $40 000.
The Anti-Discrimination Act 1977 will be amended during the current session of Parliament. A new ground, discrimination on the basis of gender orientation, will be introduced. A range of other amendments to the Anti-Discrimination Act are under consideration, but the Government has decided to wait for the report of the NSWLRC review of the Act, expected at the end of 1996, before proceeding with any further amendments.

Defamation

In a report on defamation released in October 1995, the NSWLRC has recommended radical changes to the law to make the truth or falsity of a defamatory statement the key issue. A person suing for defamation will have to prove that what has been said is false. In many defamation cases conducted under the current law the truth of what has been said is not examined.

The NSWLRC also recommended a new fast-track remedy, a declaration of falsity. A person who is defamed can ask the court to declare that what has been said is false. The court can order that the declaration be published as prominently as the original statement. This should provide for a quick restoration of a person's reputation. The NSWLRC rejected the adoption of an American-style public figure test which makes it virtually impossible for a public figure to sue the media for defamation.

The Government has announced that it will proceed with implementation of the report during 1996.

Peter Hennessy



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