Proctor : March 2017
11 PROCTOR | March 2017 Advocacy Promoting equity and diversity – the QLS EOL Committee The Queensland Law Society advocacy team works closely with the QLS policy committees to advocate for good law, respond to law reform proposals and identify issues of concern for the profession. One of our policy committees, the Equalising Opportunities in the Law Committee (EOL committee), has a particular and distinctive focus. Its primary purpose is to promote the goals of equity, diversity and equal opportunity within the legal profession, given the research which suggests diversity adds positively both to an organisation’s workplace culture and its ‘bottom line’. The EOL committee promotes initiatives which support diversity and equality in all its forms and produces programs to highlight and work against discrimination. It deals with issues associated with gender diversity, supporting LGBTI practitioners, work-life balance and flexibility within the profession, disability in the workplace and cultural diversity, including the recruitment and retention of Aboriginal and Torres Strait Islander legal practitioners. The committee is comprised of volunteers from private practice, tertiary education institutions and academia. As part of its education and policy development program, the EOL committee has two key initiatives each year – the Equity and Diversity Awards and the Lawlink Program. The Equity and Diversity Awards recognise law firms which have taken positive and innovative steps in promoting equity and diversity within the firm and to encourage all lawyers, of all backgrounds, to participate fully in the profession. Judging criteria include equity initiatives in the practice; the education of legal practitioners in relation to anti-discrimination legislation, harassment and bullying; policies supporting equal opportunities; and flexible work practices. The 2016 winners were Harrington Family Lawyers (Small Legal Practice Initiative Award), Miller Harris (Small Legal Practice Award) and Clayton Utz (Large Legal Practice Award). The Equity and Diversity Awards will be presented again in 2017 and law firms are invited to participate and apply. Details of the awards will be published in QLS Update and at qls.com.au. The Lawlink program provides an opportunity for Indigenous law students to gain a better understanding of the practice of law, meet and network with members of the judiciary and the legal profession, and other law students. A Lawlink event is held twice a year and QLS is grateful for the generosity of our past hosts for taking the time to share their workplaces and experiences with the students. In 2016, Crown Law and Legal Aid Queensland hosted the event. The EOL committee will be coordinating Lawlink events again in 2017. Recent advocacy – January and February 2017 The advocacy team has started the year with a busy program: QLS provided comments to the Law Council of Australia for inclusion in its submission to the inquiry into the Marriage Amendment (Same- Sex Marriage) Bill. QLS was supportive of the Bill to the extent that it amends the definition of marriage from being between a ‘man and woman’ to ‘two people’. However, QLS raised concerns about a number of aspects of the draft Bill in relation to the introduction of additional exemptions that introduce unnecessary complexity or create a new basis for discrimination inconsistent with the development of anti-discrimination law in Australia. The QLS Competition and Consumer Law Committee made a submission in respect of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016. QLS had previously considered the issue in our response to the exposure draft of the Competition and Consumer (Competition Policy Review) Bill 2016. We were pleased to see that part of our earlier submission had been adopted, so that the Bill now clarified that a corporation, with a substantial degree of power in one market, can engage in an unrelated market. The Bill also adopted our comments about clarifying “related entity” and “in that or any other market”. Our recent submission advocated that the Bill required further amendment so that the term, “substantially lessening competition in the market” could be interpreted uniformly throughout the Act. QLS also responded to an invitation to comment on an inquiry into access to retained telecommunications data in civil proceedings. In keeping with the spirit of the original legislation, QLS submitted that civil litigants, in some cases (excluding family law and civil domestic violence matters), should be able to access this data if there is proper judicial oversight. The QLS Property and Development Law Committee responded to the Land and Other Legislation Amendment Bill 2016, raising concerns regarding the scope of the new provisions which will introduce the concept of a ‘priority notice’ in Queensland. The priority notice mechanism is being introduced as part of the national eConveyancing system and will largely replace the existing ‘settlement notice’ mechanism in the conveyancing process, although priority notices will have wider operation. The committee suggested amendments which would clarify that a party must have an existing legal or equitable interest in a lot to support the lodgement of a priority notice. We also submitted that the existing section 146(2) of the Land Title Act 1994 be retained, which prevents lodgement of multiple settlement notices in regards to the same transaction without the leave of the court. The committee considered that this approach would reduce the risk of misuse of the priority notice mechanism. QLS has also been invited to appear at the public hearing on the Bill before the parliamentary Agriculture and Environment Committee. QLS made submissions and appeared before the parliamentary Legal Affairs and Community Safety Committee on the Criminal Law Amendment Bill 2016. We supported the policy rationale for amending the Criminal Code to exclude an unwanted sexual advance as a basis for the defence of killing on provocation, as the amendment is specifically intended to remove the ‘non-violent homosexual advance’ provocation defence in common law. We agreed that the partial defence of provocation should not be used in this manner due to the prejudicial and discriminatory effect on members of our community. However, we raised concerns that the current drafting could have unintended consequences. We recommended that the concept of “circumstances of an exceptional character”, which appears in the draft legislation, be specifically defined to ensure that the non- violent homosexual advance defence could not be raised in the future. Further clarity was also required to ensure that an appropriate defence was available to, for example, victims of child sexual abuse or prior sexual assault who were provoked and responded lethally to the provocative act. We provided a supplementary submission in response to the committee’s questions during the hearing.