NACC passed Parliament

The Law Council welcomed the passage this week of the legislation which will establish the National Anti-Corruption Commission (NACC).

The Law Council had called for establishment of a national anti-corruption body and is pleased it is a step closer.

A number of amendments were made to the legislation by the Parliament and the Law Council believes these addressed a number of issues it had raised regarding the operation of NACC.

A key area for the Law Council that remains outstanding includes the abrogation of the privilege against self-incrimination. This is a fundamental legal protection which is inherent to the right to a fair trial. We also remain concerned about the abrogation of client legal privilege when a person is giving an answer or information, or producing a document or thing, under a notice to produce or at a hearing.  A further critical issue is the Bill’s approach to post-charge coercive powers and information sharing.

These are all issues on which the Law Council hopes to continue engaging with Parliament into the future.

Read more here.

National survey for the legal assistance sector – how is climate change affecting the everyday legal problems of clients

The Law Council continues to work to support the legal profession in its important role of providing access to justice for Australians impacted by climate change.

As noted in the Law Council’s Climate Change Policy, legal assistance services and pro bono service providers continue to adapt to new legal demands linked to climate-induced disasters like floods and bushfires. Outside the disaster cycle, the environmental and societal impacts of climate change will also continue to generate new legal demands. Less is known about the nature of these demands.

In this context, the Law Council is pleased to support the work of Ms Monica Taylor, a QUT PhD candidate, undertaking research focused on climate change and access to justice.

To gather evidence for her research, Ms Taylor has prepared a national survey on Climate Change, Legal Need & the Australian Legal Assistance Sector.

The survey is for lawyers who work or volunteer with legal assistance services (LAS), including those in the private legal profession who undertake legal aid grant work. The survey is directed towards addressing two key questions:

1. How does climate change relate to the everyday legal problems of LAS clients?
2. How prepared is the LAS to respond to climate change-related need?

If you or any of your colleagues work in these areas, please consider completing the survey or disseminating it to others who may.

The survey should take no longer than 20 minutes to complete.

The survey will be open until 23 December 2022 but may be extended depending on response rate.  

Link to the Survey: Take the Survey

Or copy and paste the URL below into your Internet browser: https://qsurvey.qut.edu.au/jfe/form/SV_bQJfmSRfVA2fjwO

The survey has been approved by QUT Human Ethics (number 5983). 

Law Council concern regarding judgment against Fijian lawyer Richard Naidu

The Law Council of Australia expressed its grave concern in the wake of senior Fijian legal practitioner, Mr Richard Naidu, being found guilty of contempt of court by scandalising the court in a judgment delivered by the High Court of Fiji on 22 November 2022.

The Law Council has monitored these proceedings closely since they were initiated by Fiji’s Attorney General, Hon. Aiyaz Sayed-Khaiyum, in June 2022.

Mr Naidu is a senior Fijian lawyer who is renowned internationally for his character, intellect and dedication to human rights and the rule of law. This case has attracted significant concern among the international legal community.

The Law Council arranged for Nicholas Cowdery AO KC to observe the hearing, held in Suva on 10 November 2022, on behalf of the Law Council and the International Bar Association’s Human Rights Institute.

Read more here.

Response to consultation on the Interim Report on stand-alone legislation to protect and commercialise Indigenous Knowledge

On 10 November 2022 the Law Council made a submission to IP Australia’s Interim Report: Scoping Study on stand-alone legislation to protect and commercialise Indigenous Knowledge (IK) (the Interim Report). The Interim Report was prepared by IP Australia following its IK Consultation in 2021, to which the Law Council made a submission.

In developing its submission, the Law Council relied on the expert contributions of members of the Law Council’s Indigenous Legal Issues Committee and the Intellectual Property Committee of its Business Law Section.  In light of the very short period of consultation, the response represents the Law Council’s in-principle and preliminary views on the questions raised in the Interim Report, building from existing Law Council positions.

In its response the Law Council emphasised that the development of laws and policies that recognise and protect IK should be the directed towards realising applicable rights set out in Declaration on the Rights of Indigenous Peoples (UNDRIP), including the right of Indigenous peoples to self-determination, free, prior and informed consent and to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.

In addressing the potential elements raised in the Interim Report for stand-alone legislation, the Law Council:

• highlighted careful consideration will need to be given to the definition and scope of a new collective right;
• re-iterated its conceptual support for a mandatory labelling scheme for inauthentic products, however also re-emphasised that clear definitions will be key to the workability of the scheme;
• submitted at least two separate bodies should be created which are respectively empowered with regulatory functions and the promotional and advocacy functions and that the bodies must be properly funded to enable them to perform their tasks effectively; and
• emphasised the importance of addressing the management of secret knowledge and of First Nations peoples having to ability to maintain and control secret knowledge and relevant databases that contain IK in accordance with their individual cultural practices.

The Law Council submits the benefits that stand-alone legislation could deliver to First Nations peoples include:

• reducing the production of inauthentic art;
• addressing the inappropriate use of IK by non-Indigenous peoples; and
• assisting to educate the wider public to respect Indigenous culture and the significant value of authentic First Nations products.

Finally, in its response the Law Council provides several examples from overseas jurisdictions, which the Law Council suggests IP Australia may wish to consider in determining its recommendations.

The Law Council understands the Australian Government has committed to introducing stand-alone legislation to protect and commercialise IK and looks forward to consulting with Constituent Bodies Sections and committee on future opportunities to contributed more developed thoughts to the development of that scheme.

Respect@Work bill an important milestone

Passage of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) represents an important milestone in implementing the remaining legislative recommendations of the Respect@Work report.

Implementation of the Respect@Work recommendations will help create safer, more inclusive and respectful workplaces.

The Law Council is a long-standing supporter of the recommendations made in the Australia Human Rights Commission’s Respect@Work report. It has made several submissions over the course of the inquiry and during the implementation phase.

Read more here.