NSW Bar Association: “As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.”

The Australian, 29 March 2018, p.6:

As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.

Sovereignty and dispossession, recognition and representation of interests: they are different facets of the same problem. It is something that we, as lawyers, have a duty to help solve. It is because of this duty that the legal profession welcomed the government’s reference to the Australian Law Reform Commission to examine, among other issues, rates of incarceration for the indigenous.

The Pathways to Justice report of the ALRC represents a comprehensive blueprint to address the shameful over-representation of indigenous people in our prisons. Swift and decisive action is required from commonwealth, state and territory governments to ensure its recommendations are implemented.

ALRC recommendations relating to sentencing and bail regimes, the repeal of mandatory sentencing laws, an effective justice reinvestment framework, culturally appropriate community-based sentencing options, and so on, are all aimed at how substantive, not just formal, equality before the law can be achieved for indigenous people. All recommendations are supported by the NSW Bar Association as important initiatives which will contribute to addressing Aboriginal incarceration rates.

The NSW Bar is pleased the ALRC supports establishment of indigenous sentencing courts including the NSW Walama Court. The Walama Court is critical in reducing indigenous incarceration. The model involves community participation and greater supervision, resulting in reduced recidivism and increased compliance with court orders to better protect the community. It is not a “soft on crime” initiative but rather a more effective manner to supervise offenders post-sentence which would enhance rehabilitation and prevent re-offending.

At this stage the NSW government has not allocated funds to establish the Walama Court in the 2018-19 financial year, despite the fact it would have long-term economic cost savings for NSW as fewer indigenous people will be imprisoned and rates of recidivism would be reduced…..

Australian Law Reform Commission (ALRC) Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133) Final Report, published on 28 March 2018.

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Australian Law Reform Commission recommends a National Plan to combat elder abuse

"4.40 Stakeholders reported many instances of abuse of people receiving aged care. These included reports of abuse by paid care workers and other residents of care homes, as well as by family members and/or appointed decision makers of care recipients. For example, Alzheimer’s Australia provided the following examples of physical and emotional abuse:

When working as a PCA [personal care assistant] in 2 high care units, I witnessed multiple, daily examples of residents who were unable to communicate being abused including: PCA telling resident to ‘die you f—ing old bitch!’ because she resisted being bed bathed. Hoist lifting was always done by one PCA on their own not 2 as per guidelines and time pressures meant PCAs often using considerable physical force to get resistive people into hoists; resident not secured in hoist dropped through and broke arm—died soon after; residents being slapped, forcibly restrained and force-fed or not fed at all; resident with no relatives never moved out of bed, frequently left alone for hours without attention; residents belongings being stolen and food brought in by relatives eaten by PCAs."

[Elder Abuse—A National Legal Response (ALRC Report 131), p.110]

In 2016 people 65 years of age and over comprised 15.3 per cent of the Australian population. This represents over 3.5 million older people, a figure the Australian Bureau of Statistics expects to grow to  9.6 million people by 2064.

The Turnbull Government needs to consider the recently published Australian Law Reform Commission report and act on its recommendations.

Australian Law Reform Commission, media release, 15 June 2017:

Elder Abuse—A National Legal Response

The Australian Law Reform Commission (ALRC) is delighted to be launching its Report, Elder Abuse—A National Legal Response (ALRC Report 131), on World Elder Abuse Awareness Day 2017.

The ALRC was asked to consider Commonwealth laws and legal frameworks and how they might better protect older persons from misuse or abuse, and safeguard their autonomy.

The Report includes 43 recommendations for law reform. The overall effect will be to safeguard older people from abuse and support their choices and wishes through:

* improved responses to elder abuse in residential aged care;

* enhanced employment screening of care workers;

* greater scrutiny regarding the use of restrictive practices in aged care;

* building trust and confidence in enduring documents as important advanced planning tools;

* protecting older people when ‘assets for care’ arrangements go wrong;

* banks and financial institutions protecting vulnerable customers from abuse;

better succession planning across the self-managed superannuation sector;

* adult safeguarding regimes protecting and supporting at-risk adults.

These outcomes should be further pursued through a National Plan to combat elder abuse and new empirical research into the prevalence of elder abuse.

ALRC President Professor Rosalind Croucher AM, Commissioner-in-charge of the inquiry, said, “In developing the recommendations in this Report, we have worked to balance the autonomy of older people with providing appropriate protections, respecting the choices that older persons make, but also safeguarding them from abuse.”

The Report represents the culmination of research and consultation over a 15-month period, during which the ALRC consulted with 117 stakeholders around the country, released two consultation documents, and received more than 450 submissions.

Professor Croucher said:  “The ALRC is indebted to the broad range of individuals and organisations who have contributed to evidence base that informs its recommendations. In particular I thank the many individuals who generously shared with the ALRC personal stories of heartache and frustration, and of families torn apart by elder abuse. It is significant that the Attorney-General, Senator the Hon. George Brandis QC, has chosen to mark the launch of the Report today —with advocates and service providers —at the 2017 World Elder Abuse Awareness Day Forum.”

Download Final Report

Summary Report

Release of the ALRC Freedoms Report is something to look forward to in March 2016

By early March 2016 the Turnbull Government is required to table and release the Australian Law Reform Commission report of the Freedoms Inquiry findings.

The Interim Report published in August 2015, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, can be found here.

This interim report states:

1.87 Throughout this paper, the ALRC highlights certain laws that may merit closer review. These are laws that have been criticised for unjustifiably limiting common law rights or principles. This report highlights some of these criticisms and some of the arguments that may be relevant to justification. However, for most of these laws, the ALRC would need more extensive consultation and evidence to justify making detailed recommendations for reform.108 1.88 Therefore, rather than make detailed recommendations for reform based on insufficient evidence, the ALRC has highlighted laws that seem to merit further review. These laws are identified in the conclusion to each chapter. The highlighted laws have been selected following consideration of a number of factors, including whether the law has been criticised in submissions or other literature for unjustifiably limiting one or more of the relevant rights and whether the law has recently been thoroughly reviewed. Laws that may be criticised for reasons other than interference with rights, for example because they do not achieve their objective, are not highlighted for that reason alone. The fact that a law limits multiple rights has also sometimes suggested the need for further review.109 1.89 The ALRC calls for submissions on which laws that limit traditional rights deserve further review.

And makes a welcome suggestion which, if implemented, would assist both parliamentarians and voters:

2.58 Additional procedures could be put in place to improve the rigour of statements of compatibility and explanatory memoranda to assist Parliament in understanding the impact of proposed legislation on fundamental rights, freedoms and privileges. The object of such procedures would be to ensure that statements of compatibility and explanatory memoranda provide sufficiently detailed and evidence-based rationales for encroachments on fundamental rights, freedoms and privileges to allow the parliamentary scrutiny committees to complete their review.