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Welcome to the second edition of the ALRC Brief – a publication distributed by email and on the website, to keep our friends and stakeholders apprised of news and developments at the ALRC.

From the President’s desk

The past four months since the inaugural ALRC Brief have seen many significant changes to the ALRC and a great deal of activity. As of 1 July 2011, the ALRC became a statutory agency under the Financial Management and Accountability Act 1997, and an employer subject to the Public Service Act 1996. This means a whole new governance regime for the ALRC and although I don’t expect the nature of our work to be affected, it will have an impact on our administrative and reporting systems. 

At the end of April, just after Easter, we moved into our new home on level 40 of the MLC Centre in Martin Place. We are sub-leasing office space from the Australian Government Solicitor (AGS), which has itself contracted in recent years. This was a great opportunity for the ALRC, as we were able to halve our rent by cutting our office space to fit better with our current needs. Moving into a fully fitted-out office meant that we had no additional fit-out expenses and the AGS also gave us a six month rental holiday as an incentive. The move has also allowed us to share a number or resources and services with the AGS, including reception and meeting rooms as well as their wonderful hard copy library. In terms of the ALRC’s Michael Kirby Library collection, we have been able to retain the essential core of it intact and to move it into the office with us, while moving more of our new purchases to online access, recognising the fluid nature of our library needs in response to each new inquiry. Here we are very lucky to have our wonderful librarian and information manager, Ms Carolyn Kearney, to identify and source all the key resources we need as we move deftly from ‘family violence’ to ‘discovery’ to ‘classification’ from one moment to the next. We look forward to developing a relationship with AGS of mutual benefit in our new home and have already participated together to celebrate Reconciliation Action Week.

With the completion of the Discovery Inquiry at the end of March, the terms of the two part-time Commissioners appointed for that inquiry—Justice Arthur Emmett and Justice Bruce Lander—came to an end. I would like to record in the Brief the warm appreciation of the ALRC for their contribution to the Inquiry, alongside the contribution of our two standing part-time Commissioners, Justice Susan Kenny and Justice Berna Collier.

When the announcement of the inquiry into Censorship and Classification, the National Classification Scheme Review, was made in March, I was delighted that the Attorney-General also announced the appointment of Professor Terry Flew as Commissioner to lead this inquiry. Terry is from the Media and Communication in the Creative Industries Faculty at Queensland University of Technology and joined us on 2 May—in our new home. I am also doubly pleased to say that the Attorney-General’s Department is providing the funds to support his appointment for the length of the inquiry!

The National Classification Scheme Review is roaring ahead, with more than four times the number of submissions ever received in an ALRC inquiry before—and this is only after the preliminary Issues Paper!  More of this in the inquiry update later in the Brief.

In the last ALRC Brief, I included mention of the Senate Inquiry into the ALRC, chaired by then Opposition Senator, Guy Barnett.  The Committee reported on 8 April and the Government responded on 8 July.  It was very heartening to see throughout the Inquiry—in the evidence given and in both the report and the response—strong support for the quality of, and respect for, the ALRC’s work.  After a rather unsettling period, this was very reassuring indeed.

There was disagreement in the Committee about the ALRC’s funding issues, which had been a key focus of the Senate’s Inquiry. The majority Senate report recommended a restoration of the ALRC’s budget cuts ‘as a matter of urgency’; the minority Senate report by Government Senators considered that the ALRC is ‘adequately resourced’ and did not accept the recommendation to restore our funding.

Putting that aside, the affirmation of the importance of our work and the respect for the ALRC from Government, from our stakeholders and the community, was welcome and timely. A fuller summary of the Committee’s Inquiry into the ALRC is included in this edition of ALRC Brief.

I am also delighted to report that, once again, the ALRC has been honoured in the Institute of Public Administration Australia (IPAA) Annual Report awards, winning another bronze award in the online category for a CAC agency for the second year in a row. This was a real tribute to the work of our website manager, Ms Marie-Claire Muir, who has transformed the way we use online tools and approach our communication strategies utilisting a wide range of techniques. I am also excited to report that the ALRC’s Executive and Project Assistant, Ms Tina O’Brien was nominated, and was one of four nominees shortlisted, for the EXPAND, Executive Assistant of the Year Award for 2011. Tina does an amazing job here supporting myself, our Commissioners and our inquiry teams, and this recognition is truly deserved.

In July I attended the Standing Committee of Attorneys-General with Commissioner Terry Flew. We were invited to give the assembled attorneys and ministers an update on our approach for the National Classification Scheme Review and on the consultation strategies for that inquiry—a clear sign of the importance of this review for the national law reform agenda. It was also very pleasing to note that one of the decisions coming from this meeting was to develop a national response to the report on family violence that we delivered in November last year, undertaken as a joint project with the NSW Law Reform Commission: Family Violence—A National Legal Response, ALRC Report 114 (2010).

See Communiqué – Standing Committee of Attorneys-General >>

Senate Inquiry into the role and functions of the ALRC

In the last Brief, we reported on developments in this Inquiry, and included a transcript of ALRC President Rosalind Croucher’s opening statement to the Committee.

Since then, the Committee completed its final report (tabled 8 April 2011), which made the following recommendations:

Recommendation 1
The committee recommends that the Australian Government restore the ALRC’s budget cuts for the period 2010-11 to 2013-14 as a matter of urgency.

Recommendation 2
The committee recommends that the ALRC Act be amended to provide for a minimum of two standing, fixed-term (not inquiry-specific), full-time commissioners.

Recommendation 3
The committee recommends that an additional full-time commissioner be appointed, for each additional inquiry referred to the ALRC, in circumstances where the ALRC already has two or more ongoing inquiries.

Recommendation 4
The committee recommends that the ALRC’s public information and education services program be resumed immediately.

Recommendation 5
The committee recommends that the ALRC be provided with all necessary resources to enable it to continue to travel to undertake face-to-face consultations as part of its inquiryprocesses.

The Report also included a dissenting report from Government Senators. The Government Senators stated that the Australian Government strongly supported the work of the ALRC and that “the changes to the ALRC’s structure introduced by the FFLA Act will improve the ALRC’s flexibility to respond to circumstances as required, and will enhance the ALRC’s ability to undertake expert analysis through access to subject-matter expert commissioners for specific inquiries”. Government Senators also considered that “the ALRC is adequately resourced to undertake its important functions, particularly in light of the Attorney-General Department’s ongoing commitment to assist the ALRC and ensure that it is adequately resourced.”

The Senate Inquiry provided an opportunity to give a full review of the operations and achievements of the ALRC, particularly over the past fifteen years since the last such review, and it was extremely important to record the bi-partisan support for the ALRC, as an independent body, and the recognition of the importance of law reform to the democratic processes of an open and transparent government. Noting the success of the ALRC’s prior reports in terms of their implementation, the high quality of its work and its national and international reputation for best practice law reform, there was almost unanimous support from submitters for the ALRC to continue its role in its current form and for the ALRC to be properly resourced to do so. Although the Government Senators did not recommend restoring the ALRC’s appropriation, it was was very heartening to note the Attorney-General’s public statements of support of the ALRC and his agreement to provide transitional funding to allow for the appointment of a full-time Commissioner for the National Classification Scheme Review.

The Final Report was made available on 8 April 2011. View the Senate Committee’s report >>

The Government responded to the Senate Committee’s report on 8 July 2011. View the Government’s response >>

Current inquiries update

Family violence and Commonwealth laws

In February/March 2011 the team released four separate Issues Papers, dealing with Employment and Superannuation; Immigration; Child Support and Family Assistance; and Social Security. There were staggered closing dates for submissions throughout April, and the ALRC received more than 80 submissions.

View public submissions to the Issues Papers >>

Throughout June, the ALRC held Advisory Panel Roundtables around the main areas of Commonwealth law under consideration in this Inquiry: migration; employment; superannuation; social security; child support and family assistance; and income management. ALRC inquiries usually establish an expert Advisory Committee, but because of the complex nature of this Inquiry we opted for specialist panels in each of the key areas under review.

The team is now putting the finishing touches on the Discussion Paper, due for release in the third week of August.  If you wish to be notified about the Discussion Paper, please subscribe to Family violence and Commonwealth laws e-news.

The Final Report is due on 30 November 2011.

Thank you to intern Julie McKenzie for her assistance to the team during the semester.

National Classification Scheme Review

By the closing date for submissions to the Issues Paper, 15 July 2011, the ALRC had received a record number of submissions, more than 2400, for any ALRC Inquiry to date. A first round of 24 face-to-face consultations has also been conducted with representatives from a range of organisations. The Classification team is now working towards delivering a more detailed Discussion Paper in September.

Based on submissions in response to the Issues Paper, the face-to-face consultations, and a review of relevant legislation and government reports, the ALRC developed a set of eight draft principles for reform. We envisage them as the main principles that should underpin any new policy framework. The ALRC published these principles on 12 August 2011 on an online public discussion forum.

• Visit the Discussion Forum >>

We would like to thank the interns who have assisted the team over the last few months: David Rowe, Jennifer Ruiz and Jacqueline Serkowski. A very special mention must also be made of the contribution of Kate Nielson, a Harvard who spent nearly a year with us and became a fully-fledged member of the Classification team over the past few months.

Discovery of Documents in Federal Courts

The ALRC delivered its Final Report, Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115), to the Attorney-General on 31 March 2011. The Report can be viewed online, or downloaded in PDF, or purchased from the ALRC website.

The Report makes recommendations about, among other things: the production and inspection of documents prior to discovery; when parties should file discovery plans; best-practice guidelines on the formation and content of discovery plans; judicial and practitioner training; the role of registrars and referees; costs orders; pre-trial oral examinations; and data collection.

Reform roundup

News about the implementation of ALRC reports and recommendations between March 2011 and August 2011.

Family Violence – A National Legal Response (ALRC Report 114)

The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 was introduced in Parliament by the Attorney-General, the Honourable Robert McClelland MP, on 24 March 2011. (The ALRC had made a submission to the Attorney-General’s Department in relation to the bill in October 2010.) This bill would substantially implement Recommendation 6–4 of the ALRC and NSW Law Reform Commission’s report Family Violence—A National Legal Response. The recommendation provided for a revised and broader definition of ‘family violence’ in the Family Law Act 1975 (Cth).

The Senate has referred the bill to the Legal and Constitutional Affairs Legislation Committee for a parliamentary inquiry and report by 16 August 2011. The ALRC gave evidence regarding the recommended definition to the committee in July 2011.

In relation to the other recommendations made in Family Violence—A National Legal Response, the Attorney-General has stated that the Government is currently considering the report.

For Your Information: Australian Privacy Law and Practice (ALRC Report 108)

In the past few weeks the ALRC’s groundbreaking report into Privacy laws, For your Information: Australian Privacy Law and Practice, has been getting many mentions in the press as the government looks at the issues of the media and privacy, triggered in part by the News of the World phone-hacking scandal. Minister for Home Affairs and Justice, Brendan O’Connor, announced the release of an Issues Paper that will canvass the prospect of introducing a statutory cause of action for serious invasions of privacy—one of the ALRC’s key recommendations.

There has been a wide range of media coverage of the topic, some of which is captured in the ALRC in the Media archive.

In terms of progress towards implementation, the Senate Finance and Public Administration Legislation Committee (to which the ALRC gave evidence in November 2010) reported on the exposure draft Australian Privacy Principles in June 2011.

These exposure drafts were the first in a series of exposure draft amendments to privacy legislation to be referred to the Senate committee for consideration and public consultation. The legislation will then be consolidated in a revised Privacy Act.

Uniform Evidence Law (ALRC Report 102)

The Evidence Act 2011 No. 12 (ACT) received assent on 13 April 2011. When it commences, the ACT will have independently joined the Uniform Evidence Act scheme, along with the Commonwealth, NSW, Victoria, Tasmania, and Norfolk Island. Previously, the provisions of the Commonwealth Evidence Act 1995 applied directly to the ACT.

Privilege in Perspective—Client Legal Privilege and Federal Investigations (ALRC Report 107)

Assistant Treasurer, Bill Shorten, released a Discussion Paper on Privilege in relation to Tax Advice, on on 15 April 2011. The ALRC submitted a response to the Discussion Paper on 15 July 2011.

The submission refers to prior work undertaken by the ALRC, namely the report Privilege in Perspective—Client Legal Privilege and Federal Investigations (ALRC Report 107) and the recommendation in that report for a specific protection for tax advice in certain circumstances.

View the ALRC submission >>

ALRC legal intern program