Law Reform Submissions 2011

New South Wales 'Security for Costs and Associated Costs Orders'

In August 2011, PILCH made a submission to the New South Wales Law Reform Commission in response to Consultation Paper 13 ‘Security for Costs and Associated Costs Orders’: http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cp13.  

PILCH’s submission proposed a number of legislative amendments, including codifying the right to recover costs in pro bono matters and a specific legislative amendment to allow courts to make protective cost orders in public interest cases.  In relation to the first issue, PILCH recommended codification of the right to recover costs in pro bono matters in light of the current uncertainty in the law. PILCH submitted that recovery of costs by pro bono legal practitioners promotes access to justice in that it retains pro bono capacity within pro bono firms and ensures a level playing field between litigants.  In relation to the second issue, PILCH proposed a refinement of its previous submission to the Victorian and Federal Attorneys-General on the issue of protective cost orders, and recommended a two stage approach where the question of whether the proceeding is a ‘public interest proceeding’ becomes a threshold question.  Once a court is satisfied that the proceedings are ‘public interest proceeding’, then the court proceeds to the second stage to determine what protective cost order is appropriate in all the circumstances. 

Inquiry into Access by Donor Conceived People to Information about Donors

In August 2011, PILCH made a brief submission to the Law Reform Committee (Committee) in relation to its Inquiry into Access by Donor Conceived People to Information about Donors. This submission follows on from the PILCH past submission to the Committee Inquiry into Access by Donor Conceived People to Information about Donors in the 56th Parliament.

The submission was based on PILCH's experience of facilitating legal referrals to private practitioners for two clients who are donor conceived people, both of whom were conceived using gametes donated before 1 July 1988.  In particular, the submission addresses the clients’ ability to obtain access to information about their biological fathers. The submission was made with the approval of our clients, Ms Lauren Burns and Ms Kimberley Springfield.

Review of the Charter of Human Rights and Responsibilities Act 2006

On 10 June 2011, PILCH made a submission to the Scrutiny of Acts and Regulations Committee (SARC) as part of the Inquiry into the Charter of Human Rights and Responsibilities Act 2006. Submissions were also made by the Human Rights Law Centre and the PILCH Homeless Persons’ Legal Clinic.

The PILCH submission addressed aspects of the Charter’s operation that PILCH has observed in its role as a clearing house for public interest pro bono work. The submission used four case studies of clients referred to member firms and counsel since 2007. The case studies were in the area of discrimination against same sex couples, children with a disability, people subject to guardianship orders and homosexual youth. In this respect, they engaged specifically with the right to recognition and equality before the law contained in s 8 of the Charter.

PILCH used the case studies to demonstrate the way in which the Charter has been used to bring about just, fair, efficient and commonsense outcomes for clients, whether by negotiation, advocacy or litigation.  PILCH argued that the case studies illustrate the effectiveness of the Charter in establishing a dialogue about human rights in the community, amongst public authorities and in the parliamentary scrutiny process.

The submission also noted that the Charter would be more effective in protecting and upholding peoples’ rights if:

• there were provisions for an independent cause of action under the Charter;
• the Victorian Equal Opportunity and Human Rights Commission could be empowered to conciliate human rights complaints; and
• inconsistent laws (other than those expressly enacted) are deemed invalid to the extent of their inconsistency with the Charter. 

Inquiry into the Australian Law Reform Submission

In January 2011, PILCH made a brief submission to the Standing Committee on Legal and Constitutional Affairs Inquiry into the Australian Law Reform Submission (ALRC).

The PILCH submission addressed terms of reference on the role of the ALRC, the adequacy of its staffing and resources, and the appropriate allocation of functions between the ALRC and other statutory agencies. PILCH recommended that the ALRC’s mandate be supported and broadened to include a “community reference power”.  PILCH endorsed the Federation of Community Legal Centre’s submission that funding for the ALRC be continued and increased.  In considering the functions of the ALRC and the Australian Human Rights Commission PILCH submitted that these agencies must remain discrete and independent in their distinct roles, functions, powers and funding.

The submission recognised the ALRC’s leading role in the independent review, development and reform of Commonwealth laws, including those that impact on marginalized and disadvantaged members of the community.