Bulletin from the Bear-Pit … Recasting the top job at LECC … Blowfly Bruce produces questionable reasons … Crime and insanity … Tendency evidence gets tweaked … Stand by for the Personal Injury Commission … Answers on notice … Janek Drevikovsky reports from Macquarie Street
The job description for the Law Enforcement Conduct Commissioner (LECC) has been recast. Before now, only current or former judges of the Supreme Court could get the gig. Now, it’s any legal practitioner with more than five years’ standing.
Things have been shaky at the LECC for some time. There was a monumental falling out between the old Chief Commissioner, Michael (Fatty) Adams, and the oversight commissioner, Patrick Saidi.
Saidi previously acted for coppers and the police force in contentions matters.
Last year, Inspector Bruce McClintock was tapped to investigate the turmoil. Following his report, the government sacked Saidi and refused to extend Adams’ three year term, which expired in January.
The government is spinning the new eligibility requirement as a response to concerns raised in the McClintock review. Of the old eligibility criteria, McClintock wrote:
“There are very few people who fall within the category described and many of them would, for various reasons, be either unsuitable or unwilling to accept such an appointment.”
Attorney General Mark Speakment said the new, watered-down requirement was “measured and reasonable”, and would bring the LECC in-line with the minimum qualification for ICAC commissioners and High Court judges.
Yet, according to shadow AG Paul Lynch, odiferous elements are the real reason behind the change.
Meanwhile, LECC has been left in the lurch, with an acting commissioner holding the breach until Adams’ successor can be found. And all this amid ongoing funding cuts to LECC and other oversight bodies.
Once the LECC Act was done and dusted, team NSW came steaming back onto the Cauldron for a few bouts of criminal law reform.
Under the new Mental Health and Cognitive Impairment Forensic Provisions Act, judges and juries will now return a verdict of “act proven but not criminally responsible” if a defendant successfully pleads insanity.
The old verdict of “not guilty by reason of mental illness” has gone the way of dinosaurs.
The reason for the change? Attorney General Speakman explains that it is to prevent victims’ pain from being “exacerbated by hearing that a mentally ill defendant is ‘not guilty’ of an offence, even though the court found the defendant committed the act”.
The new Act replaces the 30-year-old law of the same name, and sets out revamped procedures for dealing with mentally ill defendants. Part of the point is to divert low-level offenders with mental illnesses to care and treatment, rather than the slammer.
Next to be launched down the legislative slipway is the Evidence Amendment (Tendency and Coincidence) Act 2020 which makes it easier to lead tendency evidence when prosecuting accused child sex offenders.
Under the new law, juries will be allowed to hear details of the accused’s sexual interest in children and factor those details into their verdicts.
The first limb of the test – that the tendency evidence has significant probative value – is unchanged in substance. But for child sex cases, there is now a presumption that the evidence does have value.
The test’s second limb has been amended for all crimes, not just child sex offences. Until now, the limb was only satisfied if the value of the tendency evidence would outweigh “any prejudicial effect it might have on the defendant”.
The last nine words have, under the new Act, been amended to “the danger of unfair prejudice to the defendant”.
The new Act implements recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse. NSW is the first Uniform Evidence Law jurisdiction to adopt the changes into its Evidence Act – a cause for some chest-swelling on the AG’s part.
“The NSW Government has led the nation in its response to the recommendations of the Royal Commission … I call on other states and territories to follow NSW’s lead and introduce these crucial reforms.”
That’s the result of beefed-up laws against adults who have consensual sex with teens under their authority. The offences aren’t anything new, and already apply to step-parents, teachers, sports or religious instructors and doctors.
But now, under the Crimes Amendment (Special Care Offences) Act, the offences have been extended to a fresh raft of people. Anybody working at a school can be prosecuted, provided the victim was one of their students at that school.
So too anybody working in crisis accommodation and in residential care – if there’s an established relationship of authority between the adult and the victim, the adult is liable.
There are moves afoot to create a new mega-tribunal for people injured on the road or at work.
To that end, the government has introduced the Personal Injury Commission Bill, currently before the Legislative Council. If passed, the legislation will create the Personal Injury Commission, or PIC, which will take over dispute resolution functions from the Workers Compensation Commission and the State Insurance Regulatory Authority.
The point, according to Customer Services Minister Victor Dominello, is to simplify procedure and produce that miracle of conservative government – efficiencies. Dominello says:
“We have consulted widely with scheme providers and industry stakeholders to ensure the customer is at the centre of the process.”
Because, of course, if you’re involved in an industrial accident, that makes you a customer.
Also sitting before the LC is a wonder of a bill, introduced by the comeback kid Mark Latham. If passed, the bill will force the Anti-Discrimination Board to throw out complaints if they are “frivolous, vexatious, misconceived or lacking in substance”.
In his second reading speech, Latham said the idea was to stop “activists” using the Anti-Discrimination Act as a “blunt instrument” for financial gain or vengeance.
To make his point, Latham cited the “long-running feud” between Garry Burns, gay rights campaigner, and Bernard Gaynor, a conservative Catholic – or the “2020 NSW equivalent of the Hatfields and McCoys”. According to Latham:
“The aggressor has been Burns … who has stated publicly his ‘work’ – he says that – is to lodge complaints with the Anti-Discrimination Board.”
It’s unclear whether Latham’s proposal is much more than an effort to lock Burns out of the system. Experts have rejected the Bill as unjust.
Bill Swannie, who led the Australian Discrimination Law Experts Group, said the proposal was likely to harm those anti-discrimination laws are supposed to protect – people whose first language is not English, who can’t afford legal advice and who might struggle to present a well-drafted complaint.
“Indeed, the Bill may be contrary to Australia’s human rights obligations by effectively denying access to a remedy for discrimination,” Swannie said.
The NSW government is using an amended regulation under the Jury Act to allow Supreme and District court judges to commandeer an extra three jurors in criminal trials expected to run for four weeks or longer.
This is a precaution during the plague in cases which might see jurors get ill or fall by the wayside. Previously extra jurors could be empanelled if a trial was anticipated to run longer than three months.
AG Speakman said the new arrangement gives judges the flexibility of having additional jurors on a case-by-case basis.
If more than 12 jurors are still alive by the end of the hearing, a ballot will be drawn to determine which of the 12 will do the deciding.
All of this requires new seating plans for courtrooms.
Section 25C of the Crimes Act, 1900, NSW says a person is guilty of an offence if they supply, for financial gain, a prohibited drug that causes, or substantially causes, someone’s death.
The maximum penalty is 20 years porridge.
Shadow attorney general Paul Lynch asked AG Speakman:
Answer:
It could mean people are supplying less dangerous drugs, or no-one has died from taking supplied drugs, or the wallopers are not charging anyone.
Whatever it is, it’s amazing.
In a separate question, shadow AG Lynch also asked the attorney:
This was the recommendation to abolish the crime of blasphemy.
Back came the reply on June 30:
It could be that the go-slow on Fabulous Phil’s recommendations is that the government’s religious rump would still like to stone to death the profane and the ungodly.