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Law Council President's Message - June 2024

21 June 2024

There have been two major pieces of news since my last column – one good, one disappointing, but that, combined, create a need for significant and urgent advocacy.

NLAP and the Budget

The good news is the release of Dr Warren Mundy’s review of the National Legal Assistance Partnership, which makes a large number of recommendations that reflect the warnings and proposals we and others have been making for many years.

The less happy news is that on 14 May, the Federal Budget was released. Despite, the Commonwealth Government having the NLAP review for a number of months prior to Budget night, it provided no guaranteed, long-term boost in funding for our legal assistance services.

With the NLAP expiring in just one year, legal assistance services need certainty and the Law Council will be working hard to see the recommendations of the Mundy review implemented without delay.

The recommendations contained in the NLAP review are vital to ensuring access to justice for all in this country.

I would like to highlight a few of the 39 recommendations.

Firstly, it confirmed what we have known for many years and that is that Australians in need have been let down by a decade of under-funding of the legal assistance sector and that very substantial funding injections must now be made to ensure fair and just outcomes for those in our community experiencing hardship and stress. 

The NLAP review also appealed for better justice outcomes for First Nations peoples, increases to rates paid to legal aid practitioners in the private sector, support for the long-term capabilities of those in the legal assistance workforce, for improved data collection to support evidence-based decision making, and for a regional, rural and remote HECS-HELP forgiveness scheme.

While we were disappointed the Government did not embrace the opportunity presented by the Budget to properly resource legal assistance services, there were a number of initiatives we did welcome.

These included provision of $115.6 million over four years to the federal courts system to address significant backlogs of migration and protection matters and $206.5 million over four years to help the Administrative Review Tribunal to respond flexibly to demand.

Parliamentary Committee Submissions

Over the past few months, the Law Council has made a range of submissions to major inquiries and consultations and given evidence before Parliamentary Committees.

Issues we have provided our views on include aged care reforms, doxing and privacy reforms, tax accountability and fairness, secrecy offences, greenwashing, climate change financial disclosure laws, strengthening the criminal justice response to victims of sexual violence, cybersecurity reforms, and anti-slavery.

Administrative Review Council

For example, we have focused much time in the first half of this year providing feedback and giving evidence on the Bills that will establish the Administrative Review Tribunal.

On 13 May, the Parliamentary committee scrutinising these Bills released its report. The Committee’s report contains 80 references to the Law Council, with extracts from our submission and appearance at a public hearing featured consistently throughout. Recommendations contained in both the main report and a dissenting report, reflected recommendations we made. These Bills were passed by the Parliament in late May. Over the course of their Parliamentary scrutiny, several significant amendments were agreed which reflected Law Council positions.

Migration Removal Bill

Another piece of legislation the Law Council has been vigorously pressing its case on is the Migration Amendment (Removal and Other Measures Bill) 2024.

This Bill will amend the Migration Act 1958 to allow the Minister to issue written directions to a ‘removal pathway non-citizen’ to facilitate their removal from Australia; introduce criminal penalties for refusing or failing to comply with such directions and empower the Minister to reverse a protection finding in relation to a lawful non-citizen who is on a removal pathway. It will also confer a discretionary personal power on the Minister to designate a country as a ‘removal concern country’ which would have the effect of preventing citizens from that country from applying for a visa where they are outside Australia.

The Law Council of Australia has urged the Parliament not to pass this Bill. We believe the Bill is highly disproportionate and punitive in its effect on predominantly vulnerable individuals. No evidence of any serious or widespread problem to justify this response has been produced.  A Senate Committee report has been issued which again heavily cites the Law Council.  Its alternative positions have been reflected in several Coalition and crossbencher recommendations.  At the time of writing, the Bill remains before the Senate for debate. 

AML/CTF

The Law Council is continuing its focus on the Federal Government’s proposed reforms to Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime, under the leadership of President-elect, Juliana Warner.

A second round of consultation on the reforms is now underway. We will of course be making a submission to this consultation and continue to make our concerns known, including those regarding risk to client legal privilege, and seek to ensure that the response is proportionate, evidence-based and takes into account the variety of legal practices in which our members are engaged and limits to the greatest extent possible the impost of this regime upon them.

National and International representation

I have continued my programme of travelling around the country in recent months and consulting with our Constituent Bodies to ensure that the Law Council is speaking on their behalf on national issues.

Over the past few weeks, I have been in Bucharest representing Australian lawyers at the International Bar Association Mid-Year Leadership Meetings, where delegates discussed the role of lawyers in matters relating to election campaigns, artificial intelligence and climate change and attended the Presidents of Law Associations in Asia Summit in Hong Kong, where I presented on the topic of Talent Attraction and Retention by legal practices.

In Conclusion

These are just some of the highlights of the activities of the Law Council in fulfilling its role as the voice of the legal profession, and I would encourage you to regularly follow us on social media or visit our website to see the comments, concerns and recommendations we are expressing on your behalf.

Thank you to all who have contributed some much of their valuable time on a voluntary basis to our work. While I am sure it can sometimes seem like a lot of effort with limited returns, I assure you making sure our voice is heard is not only important, but it does reap rewards, change minds and result in improvements in the law. My experience throughout this year is that the Law Council’s representations are frequently the subject of expressions of thanks from Parliamentary Committee members and positive comments and in their reports and similar responses from Ministers, politicians of all parties and public servant with whom we interact.

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