RESPONSE FROM POLITICAL PARTIES - 2015 NSW STATE ELECTION POLICY PLATFORM
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2015 NSW STATE ELECTION POLICY PLATFORM RESPONSE FROM POLITICAL PARTIES
The Law Society’s 2015 State Election Policy Platform - Balance.Rights.Justice. - invites political parties and candidates for election to make a commitment to constructive and consultative law reform. The Policy Platform sets out eight key areas in which changes should be made to the benefit of the NSW community, under three major themes: In this document, the Law Society presents the responses received from the NSW Liberal & Nationals, the NSW Labor Party and the Greens NSW. The responses give us a significant insight into the law and justice policies of the three parties. In addition to revealing the policy intentions of the parties in the lead-up to the Election, the responses create a platform for engagement with the parties on law reform issues after the Election, whether they are in government or opposition. The Law Society was also pleased to receive responses from two Independents: Mr Greg Piper MP, the Member for Lake Macquarie, and Mr Alex Greenwich MP, the Member for Sydney. You can find these responses at www.lawsociety.com.au/nswelection. Also available at this address are the issues raised by the Law Society as set out in full in the Policy Platform - Balance.Rights.Justice.
A BALANCED CRIMINAL JUSTICE SYSTEM
SENTENCING
The Law Society of NSW calls on all parties to:
Reject mandatory sentencing and repeal laws which impose minimum terms of imprisonment
Provide for flexible sentencing options across NSW
Take urgent action to reduce the disproportionately high number of Indigenous people in NSW prisons
NSW Liberal & Nationals NSW Labor Party reduces reoffending and reduces
drug use. The Drug Court was
The NSW Liberal & Nationals NSW Labor believes in the
originally introduced in this State
acknowledge that sentencing retention of judicial discretion
by a Labor Government.
is a complex process and we in the face of calls for mandatory
want magistrates and judges to sentencing. We have considerable NSW Labor acknowledges the
have the appropriate tools to reservations as to the effectiveness gross over-representation of
ensure community confidence or desirability of mandatory Aboriginal people in our prison
in the criminal justice system sentencing. In Government we did system. Incarceration rates of
is maintained. The NSW not introduce mandatory terms Aboriginal people have never
Government referred the issue of imprisonment as a penalty. In been higher. They are higher now
of sentencing to the NSW Law the Fifty Fifth Parliament NSW than at the time of the Royal
Reform Commission and is Labor opposed and voted against Commission into Aboriginal
considering the Commission’s the Crimes Amendment (Murder Deaths in Custody. There are now
recommendations. In the interim, of Police Officers) Bill 2011 which more Aboriginal people in NSW
the Government supports flexible introduced mandatory sentencing prisons than when the current
sentencing options, such as for the murderers of police officers. coalition Government came to
Intensive Correction Orders, We moved amendments to the power and Aboriginal people
where appropriate. Government’s Crimes Amendment constitute a higher proportion of
(Intoxication) Bill 2014. That Bill the prison population now than in
A NSW Liberal & Nationals proposed to introduce mandatory 2011. NSW Labor is committed to
Government will continue to fund sentencing for a significant number address these issues. In particular,
targeted programs to reduce the of offences. Our amendments we have discussed the strategies of
rate of re-offending among adult retained judicial discretion in the Justice Reinvestment as a solution
Indigenous offenders. In addition sentencing process. The Legislative to this problem. We are committed
to existing programs the NSW Council adopted our amendments to exploring that approach in
Government recently established but they were opposed by the Government.
a trial of the first NSW Youth Government-controlled Legislative
Koori Court. The court engages Assembly. That failure to agree has
young offenders in a culturally resulted in the legislation lapsing.
relevant process which addresses
re-offending behaviour. We have NSW Labor supports flexible
announced the reconfiguration sentencing options. For example,
of the Kariong Correctional we have committed an incoming
Centre into a specialist prison to Labor Government to extend
assist Aboriginal offenders with the Drug Court to the Illawarra.
individualised programs to address BOCSAR studies have consistently
their re-offending behaviour. shown that the Drug Court
2 The Law Society of NSW – BALANCE. RIGHTS. JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORMGreens NSW crime and reduce re-offending.
The appallingly disproportionate
The Greens oppose mandatory
rate of Aboriginal children
sentencing and mandatory
in juvenile detention must be
minimum terms of imprisonment.
urgently addressed commencing
The Greens have been the only
with significant investment in
party in the NSW Parliament to
safe and supervised non-custodial
consistently oppose mandatory
accommodation for juvenile
sentencing laws and other laws
offenders who cannot satisfy
which limit judicial discretion on
residential bail conditions.
sentencing. We will remain true
to these principles in the future
including in supporting the repeal
of the existing one punch and
mandatory minimum laws.
The Greens support judges and
magistrates having access to a
wide range of flexible sentencing
options apart from imprisonment.
Imprisonment should only be
applied where a court is satisfied,
having considered all possible
alternatives, that no penalty other
than imprisonment is appropriate.
The Greens support the
introduction of policies
which actively seek to reduce
inappropriate custodial sentences
for Aboriginal people. We
support ongoing implementation
of “justice reinvestment”in
disadvantaged communities in
NSW, whereby money that would
have been spent on the prison
system is reinvested in programs
and services in communities to
address the underlying causes of
RESPONSE FROM POLITICAL PARTIES 3A BALANCED CRIMINAL JUSTICE SYSTEM
BAIL
The Law Society of NSW calls on all parties to:
Stop knee-jerk amendments to the Bail Act
Reject the “show cause” test requiring defendants to justify their own bail
Evaluate the impact of the Bail Act on young people to ensure unnecessary remand is avoided
NSW Liberal & Nationals NSW Labor Party The Greens were the only party
in the NSW Parliament to oppose
Following concerns that some bail The Bail Laws in this State have
the show cause provisions being
decisions were not reflecting the been the subject of frequent
placed in the Bail Act. We remain
NSW Government’s intention that change. In itself this must inevitably
committed to this position.
the safety of the community, victims lead to lack of certainty in the
and witnesses was at the forefront law. The current Government’s We support a thorough evaluation
of all decisions made on bail, the approach has been inconsistent, of the Bail Act to reduce the
Government asked former Attorney confused and contradictory. The number of juveniles in detention.
General, Judge John Hatzistergos, Opposition looks forward to the As a starting point we also support
to review the existing laws. statutory review of the Bail laws the following specific measures:
to assess whether the legitimate
The NSW Government accepted aims of ensuring that those • Supporting bail or community-
the recommendations of the charged appear in court and of based supervision regimes for
Hatzistergos review and the NSW ensuring community safety have juveniles charged with all but
Parliament passed amendments been achieved. We agree that the the most serious of offences
to the Bail Act 2013, which application of the bail laws to
commenced on 28 January 2015. • Amending the Bail Act to
young people should be closely ensure that police must first
The NSW Government believes monitored. consider alternatives to arrest
these reforms strike the right in relation to failures to comply
balance between individual Greens NSW with bail
liberty and community safety. The The Greens have not supported
Government will be guided by knee-jerk amendments to the Bail • Amending the Bail Act to
further advice from the Sentencing Act in the past and we will not reduce the amount of time
Council and Judge Hatzistergos, do so in the future. Ill-considered young people are kept in custody
who is due to deliver a final report and unprincipled amendments including following minor
in mid-2015. to the Bail Act have become a breaches of bail conditions
normal, and dysfunctional, part • Significant investment in safe
of the NSW politics. We oppose and supervised non-custodial
presumptions against bail based accommodation for juvenile
on categories of offences and we offenders who cannot satisfy
support the repeal of arbitrary residential bail conditions.
restrictions on persons seeking bail.
4 The Law Society of NSW – BALANCE. RIGHTS. JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORMPROTECTING RIGHTS
WORKERS COMPENSATION
The Law Society of NSW calls on all parties to:
Restore fair compensation for injured workers
Reform the overcomplicated work capacity review process and abolish restrictions on access to legal advice
Fix the dysfunctional dispute resolution system for workers compensation disputes
NSW Liberal & Nationals NSW Labor Party Greens NSW
The NSW Government supports NSW Labor believes that if The Greens support the return to
Workers Compensation and CTP someone is injured at work fair and just workers compensation
schemes that are fair, affordable, they should be treated with and work injury damages laws
efficient and which provide proper dignity and respect. We opposed in NSW. The 2012 workers
support for those who are injured. the Government’s harsh and compensation “reforms” were
unnecessary changes to workers opposed by the Greens because of
In September 2014 enhancements compensation that saw medical their patently unfair nature. The
were introduced to the Workers benefits time limited, weekly loss of lump sum benefits, limits on
Compensation Scheme to further payments reduced and claims for weekly compensation payments and
assist injured employees with workers injured on the journey to medical benefits have all caused
additional income support, and from work all but abolished. significant hardship to injured
medical and ancilliary services. workers. These changes must be
NSW Labor will reverse the Liberal reversed. Greens amendments in
The NSW Government is also State Government’s workers
considering the findings of the Upper House were successful
compensation laws, including the in retaining benefits for emergency
recent reviews of the Workers provisions that prohibit workers
Compensation Scheme and service workers, but we remain
from hiring legal practitioners to firmly of the view that these rights
continues to look at ways the help them.
Scheme can be improved. should be enjoyed by every injured
Labor in Government will hold worker in NSW.
a genuine inquiry into workers Every injured worker should
compensation in NSW. We will be entitled to access to legal
restore journey claims and give assistance to resolve their workers
injured workers the financial compensation claim. This must
assistance they need to pay medical include a scheme that pays for
bills. We will ensure that all workers an injured worker’s reasonable
receive fair compensation. We will legal costs. The current process
require insurance companies to for the resolution of workers
ensure better claims management. compensation claims is tortuously
complex and counterproductive.
The Greens are committed to
replacing it with a simpler dispute
resolution process before a single
independent statutory tribunal.
RESPONSE FROM POLITICAL PARTIES 5PROTECTING RIGHTS
CTP MOTOR ACCIDENTS INSURANCE
The Law Society of NSW calls on all parties to:
Maintain fair entitlements for people injured in motor vehicle accidents for as long as they need them
Continue making improvements to CTP claim and dispute resolution processes
Preserve access to legal advice for CTP claims
NSW Liberal & Nationals Greens NSW • Government management and
underwriting of the scheme such
The NSW Government supports The Greens support the
as occurs in WA, Tasmania,
Workers Compensation and CTP maintenance of the existing
Victoria and the NT as these
schemes that are fair, affordable, entitlements to those injured
schemes deliver consistently
efficient and which provide proper in motor vehicle accidents. We
cheaper premiums than privately
support for those who are injured. also support a well-costed and
underwritten and managed
considered expansion of benefits
schemes
NSW Labor Party on a no-fault basis.
NSW Labor also decided to Access to justice requires access
The Greens support a fairer CTP
oppose the Government’s CTP to legal advice. This includes in
scheme aimed at the fair resolution
motor accidents legislation that relation to CTP claims.
of disputes including:
would have cut benefits and
pushed up the cost of greenslips. • Clawing back insurance
The Government had to withdraw company super profits, with a
that legislation. goal to returning the average
20% of premiums currently
We welcomed the retained by private insurers as
recommendations of the Legislative extra-normal profits back to
Council’s Standing Committee on motorists either as reductions in
Law and Justice. In particular we green slip prices or as additional
welcome these proposals: statutory no fault benefits
• The Motor Accident Authority • Reforming the claims system to
reporting on the reasons behind limit the ability of insurers to
insurer’s high profits reject claims as out of time
• Simplifying the claims process
and forms to encourage early
resolution and to reduce costs
• An examination of the barriers
to the entry of new insurers.
6 The Law Society of NSW – BALANCE. RIGHTS. JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORMPROTECTING RIGHTS
GOVERNMENT POWERS
The Law Society of NSW calls on all parties to:
Repeal anti-bikie and consorting laws which criminalise non-criminal behaviour
Ensure legislation on police powers protects rights
Improve outcomes for Indigenous children in the care and protection system
NSW Liberal & Nationals The maximum initial time for In addition to the Safe Home for
detaining a person under arrest for Life reforms, we are investing in a
The consorting laws form a
investigation purposes was changed number of Aboriginal and Torres
valuable part of the NSW
from 4 to 6 hours; however, the Strait Islander specific programs.
Government’s strategy to combat
maximum possible extension of
serious organised crime. We are investing in a six-year
this period was reduced from 8
to 6 hours. Therefore, the total pilot of the Protecting Aboriginal
The intention of the consorting
possible investigation period has Children Together program, in
offence is to address behaviour
remained at twelve hours. Police two Aboriginal non-government
that forms or reinforces
cannot extend the investigation organisations in Moree and
criminal ties. It is a defence if
period for a period longer than is Shellharbour. Protecting Aboriginal
the consorting is reasonable
reasonable in the circumstances. Children Together services work in
in certain circumstances.
partnership with the Department
These circumstances include
Under the NSW Government’s of Family and Community Services
consorting with family members,
Safe Home for Life Reforms, (FACS) and families to ensure child
consorting in the course of lawful
the Aboriginal and Torres protection responses for Aboriginal
employment, or business, training
Strait Islander Child Placement children and young people are
and education, the provision of
Principles continue to apply. culturally responsive. This requires
health services, legal advice and
These principles focus on self- Protecting Aboriginal Children
in the context of lawful custody or
determination and on participation Together to be involved in the child
complying with a court order.
in decision-making. Where protection process from the initial
In 2014, the NSW Government restoration is not considered response through to case planning
made amendments to the possible and an Aboriginal child and closure. Protecting Aboriginal
Law Enforcement (Powers and is unable to live with relatives Children Together can add value by
Responsibilities) Act 2002 to improve or kin, a placement with a non- ensuring case planning considers
its effectiveness. related person in the Aboriginal the cultural and individual needs
community or a suitable person of families and, where a child or
It is important that police have may be considered in line with young person is placed into out-of-
clear and effective powers and that the child’s best interests and in home care, Protecting Aboriginal
those who are subject to those consultation with the Aboriginal Children Together can assist in
powers have appropriate safeguards. community. The legislation and identifying suitable placement
policy acknowledges that adoption options in the extended family and
The law governing information
is not usually considered, however, community network.
that must be provided by police
the legislation allows for the
when exercising their powers had
adoption of Aboriginal children
become too complex and difficult
as a final preference following
for police to apply in the field.
parental responsibility.
The requirements have now been
simplified and are far more practical.
RESPONSE FROM POLITICAL PARTIES 7PROTECTING RIGHTS
GOVERNMENT POWERS continued
We are also investing in the NSW Labor Party Greens NSW
Aboriginal Intensive Family Based
As the Society correctly notes, The Greens support the basic
Services program. This includes
the balancing between protecting premise of freedom of association
six permanent services across
an individual’s rights with the and have consistently voted to
FACS districts, and a pilot of four
imperative to detect and prosecute oppose laws that criminalise non-
Intensive Family Based Services’
crime is not simple. We think on criminal behaviour. As the only
in Aboriginal non-government
occasions the current Government party that opposed the “bikie” and
organisations until June 2016.
has gone too far. The Labor consorting laws in Parliament, we
Intensive Family Based Services
Opposition voted against the remain committed to repealing
is an intensive, time-limited
Evidence Amendment (Evidence them.
program that works with referred
of Silence) Bill 2013 and the
Aboriginal families who may be The Greens support a NSW
Summary Offences Amendment
at-risk of having a child or young Bill of Rights and balanced law
(Intoxicated and Disorderly
person placed into out-of-home enforcement provisions that do
Conduct) Bill 2011. We moved
care due to care and protection not provide excessive discretion to
amendments to the Graffiti
concerns, or where an Aboriginal police. This includes supporting
Legislation Amendment Bill
child or young person is currently laws that prohibit the use of
2011. We have been supportive of
in out-of-home care and is due to emergency powers to suspend civil
provisions mandating review of
be returned home to their family. liberties, and the use police dogs
legislation.
Intensive Family Based Services are to screen members of the public.
based in Dapto, Campbelltown, NSW Labor shares the Society’s The civil liberties safeguards on the
Redfern, Mt Druitt, Newcastle aim to improve outcomes for powers of arrest that were provided
and Casino. Non-government Indigenous children in the care in the original Law Enforcement
organisation pilot locations are and protection system. Powers and Responsibility Act 2002
Wagga Wagga, Wyong, Lakes, must be restored.
Kempsey and Clarence Valley.
Since the 1997 Bringing Them
FACS is currently funding the Home report, NSW has seen
Aboriginal Child, Family and a tragic and damaging five-
Community Care State Secretariat fold increase in the number of
to pilot an Aboriginal Family Aboriginal children removed from
Group Conferencing model in their families. The most recent
Shellharbour, Broken Hill, Wyong Productivity Commission report
and Clarence Valley. The overall shows that NSW again has the
goal of Aboriginal Family Group highest rate of Aboriginal child
Conferencing is for the child or removal in Australia. Resolving
young person (where appropriate), this crisis requires commitment to
family and others to actively working actively with Aboriginal
participate in the development of communities on pathways to
a ‘Family Plan’, which includes restore children to family and
strategies to address identified country and to change the
risk and/or safety concerns and Aboriginal child protection system
to ensure the safety, welfare and from one of last minute removal to
wellbeing of those children and early assistance for families in need
young people. of support.
8 The Law Society of NSW – BALANCE. RIGHTS. JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORMACCESS TO JUSTICE
COURT ACCESSIBILITY
The Law Society of NSW calls on all parties to:
Ensure adequate funding for judiciary and court staff
Improve court coverage in regional and suburban areas
Reduce court filing fees and limit future increases to CPI
NSW Liberal & Nationals with providing court and tribunal Greens NSW
services and the capacity of users
It is important that NSW is served Access to legal assistance,
to pay. Disadvantaged users may be
by an efficient, modern and regardless of your wealth, is an
able to waive or postpone their fees
accessible court system. essential right in a modern society.
by writing to the relevant registrar.
For this reason significant increases
NSW is served well by our Some users of the NSW Civil and
to legal aid from the NSW treasury
judiciary. Through the hard work Administrative Tribunal (NCAT),
and from proceeds of crime
and professionalism of magistrates including pensioners, are eligible
legislation are essential. It is simply
in NSW, the Local Court has for reduced or concession fees.
unacceptable that legal aid is only
consistently been a national leader provided where a person faces
in key productivity measures. NSW Labor Party potential imprisonment, especially
NSW Labor recognises the considering the far reaching
It is important that the court
role of Courts as the central implications on any person’s life of
system responds to the particular
pillar of the justice system. The any criminal conviction.
challenges associated with servicing
current Government’s approach
rural and remote areas of the state. An adequately funded DPP with
to court closures is based on a
Almost 80% of court locations the resources to determine the
predetermined budgetary demand
are in rural and regional areas. appropriateness of prosecutions
rather than a proper analysis of the
In the 2014-15 Budget the NSW and fairly and competently
needs of parties and stakeholders
Government invested $40 million undertake its task is a basic pre-
in the legal system.
in court videoconferencing requisite for our legal system.
technology, which reduces the need The provision of adequate legal aid
for accused and convicted people services is essential if formal legal The ALS 24 hour legal advice line
to travel for court appearances. rights are actually to be protected has been one of the most important
and enforced through access to and successful recommendations
Over the last four years, the NSW of the Royal Commission on
courts. The NSW Opposition
Liberal & Nationals Government Aboriginal Deaths in Custody.
notes the Productivity Commission
has invested over $280 million in There should be a non-partisan
recently estimated that Australia
new courthouses or upgrades to commitment to its retention
wide, only 8% of households
existing courthouses. and to resolving the unedifying
would meet current civil legal
The obligation to pay court or aid guidelines. dispute between NSW and the
tribunal fees is based on the Commonwealth over funding.
principle that a user of a court or Given its importance, even in
tribunal service should contribute the absence of Commonwealth
to the cost of that service. In funding, NSW must commit to
setting fees, the NSW Government maintain the service.
attempts to balance the need to
recover some costs associated
RESPONSE FROM POLITICAL PARTIES 9ACCESS TO JUSTICE
JUSTICE FUNDING
The Law Society of NSW calls on all parties to:
Ensure adequate funding for legal aid from NSW Treasury
Ensure adequate funding for the NSW Office of the Director of Public Prosecutions
Commit to ongoing funding of the telephone service for Aboriginal people taken into custody
NSW Liberal & Nationals The Custody Notification Service Greens NSW
is provided by the Aboriginal
Legal Aid NSW lawyers are on the Access to justice requires
Legal Service (ALS). Funding
frontline across a range of areas reasonable access to courts and
of the ALS has historically
helping people - whether they are judges across NSW. Ongoing
been the responsibility of the
facing mortgage default, divorce or cutbacks to circuit and court
Commonwealth. The NSW
child support issues, harassment sitting times in outer-suburban
Government welcomed the
at work, or problems with a faulty and regional NSW have hindered
Commonwealth funding provided
product, Legal Aid solicitors access and must be reversed.
in 2013 to continue this service
can help. Innovative on line access and court
and calls on the Commonwealth to
assistance programs must also be
The NSW Liberal & Nationals continue funding it into the future.
actively promoted. Courts must
Government appreciates Legal Aid’s not become the preserve of the
invaluable work in the community NSW Labor Party wealthy and to that end excessive
and is committed to continuing Labor is committed to adequate reliance on user-pays fees, as well
funding. In fact, funding has resourcing of the justice system. as any fee increases over and above
increased from $104 million in the CPI, are not be supported by
2010/11 under Labor to $141.9 the Greens NSW.
million in 2014/15 under the NSW
Liberal & Nationals Government.
The NSW Liberal & Nationals
Government has increased funding
to the Office of the Director of
Public Prosecutions in the 2014/15
budget to a total of $118 million.
This compares to a budget of $102.5
million in 2010/11 under Labor.
10 The Law Society of NSW – BALANCE. RIGHTS. JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORMACCESS TO JUSTICE
ROLE OF LAWYERS
The Law Society of NSW calls on all parties to:
Affirm the role of lawyers in providing legal services to the community
Give people the right to choose to have legal representation in courts and tribunals
Draw on the knowledge and expertise of the legal profession in developing and implementing policy
NSW Liberal & Nationals NSW Labor Party Greens NSW
The NSW Liberal & Nationals Additionally we support the For the reasons stated above, the
Government acknowledges the principle of lawyers providing Greens support the importance
important role of lawyers in legal services to the community. of legal services being provided by
providing legal services to the The role of the legal profession an independent and well-regulated
community and in assisting the in commenting and advocating legal profession. People must have
Government in the development on and about the law and the right to seek to be represented
and implementation of policy. operation of the legal system is by the lawyer of their choice.
We will continue to engage in of great importance. No sensible
discussions with the Law Society Government will ignore such The Greens believe that the legal
and other peak legal profession a resource. This extends to profession has essential expertise
bodies and encourage them to the Not-for-Profit sector such that assist in making public policy
contribute to important as Community Legal Centres. decisions regarding the operation
legislative reforms. NSW Labor in Government will of the legal system, and its
introduce Freedom to Advocate interface with other government
We note that in the vast majority legislation (similar to the Federal and non-government services. This
of cases individuals do have the model) to ensure that this sector expertise and assistance should
right to have legal representation. can continue to contribute to be routinely accessed to assist in
However legal representation is not ongoing debates. making these decisions.
always necessary. Where a matter
is straightforward, allowing parties
to be represented by skilled agents
or to present their own case to
the NCAT is an effective way to
ensure that disputes are resolved
quickly and cheaply. This in turn
makes the legal system much more
accessible to the community. There
is capacity for the NCAT to grant
people leave to be represented by a
lawyer where that is appropriate.
RESPONSE FROM POLITICAL PARTIES 11© 2015 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales.
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