Equality before the Law Bench Book Update 25 published

The following chapters have been revised:

Section 5 — People with disabilities

The chapter has been extensively revised and updated in response to Recommendation 8.11 in the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) which recommended that information be made available to judicial officers, legal practitioners and court staff about seeking or making adjustments and supports and services for people with disability and the circumstances in which they may be required. See especially the updated Practical considerations for judicial officers at 5.6 and ff for further information about supports and services for people with disability before and during legal proceedings.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) definitions of “mental health impairment” and “cognitive impairment” have resulted in extensive updates to Intellectual disabilities 5.3.4, Fitness to plead/criminal responsibility at 5.5.3 and Cognitive impairment at 5.3.7.

The revised Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), which is designed to communicate the essential characteristics of mental disorders, has been utilised to update Mental disorders at 5.3.6.

A new section Legal protections for people with a disability at 5.4 includes information about the Ageing and Disability Commissioner established under the Ageing and Disability Commissioner Act 2019 (NSW); the NDIS Quality and Safeguards Commission established to improve the quality and safety of NDIS supports and services; and the Disability Inclusion Act 2014 (NSW) which provides that each government department and local council must have a disability action plan.

Bromley v The King [2023] HCA 42, where the High Court noted that each of the expert psychiatrists accepted that a person with schizo-affective disorder could be found to be reliable if other evidence supported that person’s evidence, is included at Capacity at 5.5.

Section 6 — Children and young people

At 6.2.2 Criminal responsibility the case of BDO v The Queen [2023] HCA 16 has been added. Here, the High Court held that in some cases where it is proved a child had the capacity to know that an act was morally wrong, it may follow that the child is likely to know that to be the case. But whether this is so will depend upon the evidence in the particular case: BDO v The Queen at [22].

A new section has been added at 6.3.3.2 Principle of making “active efforts” . The “principle of active efforts” means making active efforts to prevent the child from entering out-of-home care, and in the case of removal, restoring the child to the parents, or if not practicable or in the child’s best interests, with family, kin or community: Children and Young Persons (Care and Protection) Act 1998, s 9A(2) .

It has been noted that at 6.4.3.3 Child sexual assault matters that the Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 amended the Criminal Procedure Act 1986 by inserting new Div 1A, extending Child Sexual Offence Evidence Pilot, with some amendments, to all District Courts in NSW.

Section 12 — Trauma-informed courts

At 12.6 Further information or help, the Women’s Trauma Recovery Centre has been added. This centre is a place for women to heal and rebuild lives after experiencing domestic, family, and sexual violence. Through an innovative and wrap-around approach, the Centre will support women to live independent and secure lives for the wellbeing of current and future generations.

At 12.7 Further reading, for subscribers to JIRS, the Intergenerational trauma resources has been added.