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LSB April 2018_Web

FEATURE A SUMMARY OF

FEATURE A SUMMARY OF RECOMMENDATIONS FROM THE ALRC REPORT ON INCARCERATION RATES OF ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE Justice Reinvestment Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment. The justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership. Commonwealth, state and territory governments should support justice reinvestment trials initiated in partnership with Aboriginal and Torres Strait Islander communities Bail State and territory bail laws should be amended to include standalone provisions that require bail authorities to consider any issues that arise due to a person’s Aboriginality, including cultural background, ties to family and place, and cultural obligations. These would particularly facilitate release on bail with effective conditions for Aboriginal and Torres Strait Islander people who are accused of lowlevel offending. Sentencing and Aboriginality Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples. State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations and communities, should develop options for the presentation of information about unique systemic and background factors that have an impact on Aboriginal and Torres Strait Islander peoples in the courts of summary jurisdiction, including through Elders, community justice groups, community profiles and other means. Community-based Sentences State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to improve access to community-based sentencing options for Aboriginal and Torres Strait Islander offenders. State and territory governments should implement community-based sentencing options that allow for the greatest flexibility in sentencing structure and the imposition of conditions to reduce reoffending. In the absence of the availability of 36 THE BULLETIN April 2018 appropriate community- based sentencing options, suspended sentences and short sentences should not be abolished. Mandatory Sentencing Commonwealth, state and territory governments should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Prison Programs and Parole State and territory corrective services agencies should develop prison programs with relevant Aboriginal and Torres Strait Islander organisations that address offending behaviours and/or prepare people for release. These programs should be made available to: • prisoners held on remand; • prisoners serving short sentences; and • female Aboriginal and Torres Strait Islander prisoners. Access to Justice State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to: • establish interpreter services within the criminal justice system where needed; and • monitor and evaluate their use. Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts. These courts should incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate. Aboriginal and Torres Strait Islander Women Programs and services delivered to female Aboriginal and Torres Strait Islander offenders within the criminal justice system - leading up to, during and post-incarceration - should take into account their particular needs so as to improve their chances of rehabilitation, reduce their likelihood of reoffending and decrease their involvement with the criminal justice system. Police engaging with Aboriginal and Torres Strait Islander people and communities should receive instruction in best practice for handling allegations and incidents of family violence. Fines and Driver Licences State and territory governments should abolish provisions in fine enforcement statutes that provide for imprisonment in lieu of, or as a result of, unpaid fines. State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to identify areas without services relevant to driver licensing and to provide those services, particularly in regional and remote communities. State and territory governments should review the effect on Aboriginal and Torres Strait Islander peoples of statutory provisions that criminalise offensive language. Alcohol All initiatives to reduce the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities should be developed with, and led by, these communities to meet their particular needs. Commonwealth, state and territory governments should enable and provide support to Aboriginal and Torres Strait Islander communities that wish to address alcohol misuse to: • develop and implement local liquor accords; and/or • develop plans to prevent the sale of full strength alcohol or reduce the availability of particular alcohol ranges or products within their communities. Police Accountability Commonwealth, state and territory governments should review police procedures and practices so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples. Commonwealth, state and territory governments should introduce a statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service, or equivalent service, as soon as possible after an Aboriginal and Torres Strait Islander person is detained in custody for any reason. Child Protection and Adult Incarceration The Commonwealth Government should establish a national inquiry into child protection laws and processes affecting Aboriginal and Torres Strait Islander children. Criminal Justice Targets The Commonwealth Government, in consultation with state and territory governments, should develop national criminal justice targets. These should be developed in partnership with peak Aboriginal and Torres Strait Islander organisations, and should include specified targets by which to reduce the rate of: • incarceration of Aboriginal and Torres Strait Islander people; and • violence against Aboriginal and Torres Strait Islander people.

GET IN ON THE ACT Explaining the LPA’s show cause regime ROSALIND BURKE, DIRECTOR, ETHICS AND PRACTICE UNIT “Get in on the Act” is a regular column from the Law Society’s Ethics & Practice Unit which details practitioners’ statutory professional obligations and responsibilities Sweeping changes to the Legal Practitioners Act 1981 (Act) were implemented on 1 July, 2014. The introduction of requirements with respect to “show cause events” was one of those changes. Prior to July 2014, section 49 of the Act provided for the automatic suspension of a legal practitioner’s practising certificate on becoming bankrupt. The bankrupt practitioner would then be required to apply to the Supreme Court (Court) for permission to practise. The Court would then determine whether, under the circumstances, it was safe to allow the practitioner to continue practising and, if so, any conditions that might apply. The primary concern of the Court was to ensure the protection of the public. The introduction of the show cause regime in 2014 widened the circumstances in which practitioners must seek the Court’s consent to be able to continue to practice but permits the subject practitioner to continue to practise until an order is made to the contrary by the Court. The main concern of the Court remains the protection of the public. The current show cause regime, which is adopted from the Uniform Law, requires a practitioner who holds or is applying for a practising certificate and who has experienced a show cause event to notify the Court of the occurrence of the event and then show cause as to why they should be permitted to practise despite the occurrence of the event. Section 5 of the Act provides a detailed definition of what constitutes a show cause event for the purposes of Part 3 Division 2B which includes becoming bankrupt, being served with notice of a creditor’s petition, and being convicted of a serious offence or a tax offence. A practitioner who has experienced a show cause event and who applies for a practising certificate is required to disclose the event and provide a statement to the Court (unless they have previously done so) as to why, despite the event, they are a fit and proper person to hold a practising certificate (see section 20AG of the Act). A practitioner who experiences a show cause event while holding a practising certificate is required to provide the Court with notice, within seven days, of the occurrence of the event and a statement, within 28 days, as to their fitness to practise (see section 20AH of the Act). Sections 20AG and 20AH also require the practitioner to serve copies of their 20AG/AH statement and 20AH notice (if applicable) to the Law Society and the Legal Profession Conduct Commissioner (Commissioner) both of which are entitled to make submissions to the Court on the matter. Division 3 of Part 6 of the Supreme Court Civil Rules 2006 (encompassing rules 390 to 393) details what is required for the purpose of a 20AG/AH statement and 20AH notice in terms of content and format. The onus is on the practitioner to satisfy the Court that they are a fit and proper person to hold a practising certificate despite the show cause event. This may If, during the directions stage, the practitioner, the Society, the Commissioner and the Court all agree on an outcome, the matter will usually be finalised without the need for a formal hearing. require the practitioner to demonstrate that their circumstances permit them to be able to practise without risk to the public or that they will change their circumstances for that purpose. Issues such as the ability to act in the best interest of clients, the protection of trust money, disciplinary history, any relevant medical matters, and access to resources to ensure the quality, timeliness and competency of the legal services provide by the practitioner (such as the supervision by another practitioner) will all be important considerations for the Court. The Law Society and the Commissioner may assist the Court with its enquiries into these and other matters. The usual progress of such matters through the Court is as follows. On receipt of the initiating document from the practitioner the Registrar will allocate the matter to a single Judge who will then list it for directions. The Law Society and the Commissioner are informed and have a right of appearance (as well as to make written submissions). The subject practitioner is entitled to be represented throughout. If it does not consider that the practitioner has shown that they are fit to hold a practising certificate, the Court has the power to refuse to issue or renew, or may amend, suspend or cancel, a practising certificate (see section 20AI of the Act). If, during the directions stage, the practitioner, the Society, the Commissioner and the Court all agree on an outcome, the matter will usually be finalised without the need for a formal hearing. If the matter does not resolve at directions it will be listed for a formal hearing. If you have any questions about this article please contact the Ethics and Practice Unit on 8229 0200. If you need legal advice or support in relation to show cause proceedings please contact our support services co-ordinator, Annie MacRae, on 8229 0263 or by email at annie.macrae@lawsocietysa.asn.au. B April 2018 THE BULLETIN 37