Implementation

News about the implementation of ALRC reports and recommendations between October 2010 and February 2011.

Family Violence

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

•  Recommendation 5-5 stated: “Incidental to the review of ‘domestic violence offences’ referred to in Rec 5–4, s 44 of the Crimes Act 1900 (NSW)—which deals with the failure to provide any wife, apprentice, servant or insane person with necessary food, clothing or lodgings—should be amended to ensure that its underlying philosophy and language are appropriate in a modern context.”

In November 2010, NSW Attorney General John Hatzistergos announced it would expand and modernise this archaic section the Crimes Act. It would be updated to include a host of other modern relationships where a person is dependent on another party for their day-to-day care.  

The amendments to the Crimes Act will also remove the reference to an “insane person”, which is dated and disrespectful, and replace it with a more appropriate description of a person with a mental illness.

• Recommendation 6–4 called for a new and expanded definition of ‘family violence’ in the Family Law Act 1975 (Cth), illustrated by examples of physical and non-physical violence. The Report also stated that the semi-objective test of reasonableness in the current definition should be removed—and the recommended definition omitted this test.

In November 2010, the Australian Government Attorney-General’s Department released the Exposure Draft Family Law Amendment (Family Violence) Bill 2010. One of its proposals was a new, broader definition of ‘family violence’ in the Family Law Act, which specifically includes both physical and non-physical forms of violence. The proposed definition also removes the semi-objective test of reasonableness.

Find out more about the Family Violence inquiry

Open government

Most provisions of the Australian Information Commissioner Act 2010 (Cth) and Freedom of Information (Reform) Act 2010 (Cth) commenced operation on 1 November 2010, with some provisions commencing on 1 May 2011. Enactment of this legislation substantially implemented many recommendations of the 1996 Report, Open Government: A review of the Federal Freedom of Information Act 1982 (ALRC Report 77).

Find out more about the inquiry

Sedition

On 20 October 2010, the National Security Legislation Amendment Act 2010 was passed. It implements a number of recommendations in the 2006 Report Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104), including the removal of the term ‘sedition’ from federal criminal laws and replacing it with ‘urging violence’.

Find out more about the Sedition inquiry

Privacy

The Senate Finance and Public Administration Committee recommenced its inquiry examining  Exposure Drafts of Australian Privacy Amendment Legislation, Part 1 – Australian Privacy Principles and Part 2 – Credit Reporting. This inquiry had lapsed prior to the commencement of the new Parliament. On 30 September 2010, the Senate agreed to the Committee’s recommendation that the inquiry be re-adopted in the 43rd Parliament with a final reporting date of 1 July 2011.

This is another step in the government’s commitment to re-drafting the entire Privacy Act following ALRC’s 2009 Report For Your Information: Australian Privacy Law and Practice (ALRC Report 108). The Exposure Drafts are a move towards implementation of significant ALRC recommendations concerning the consolidation and reform of statutory privacy principles and of the credit reporting provisions contained in Part IIIA of the Privacy Act.

Find out more about the Privacy inquiry

Gene patenting

The Senate Standing Committee on Community Affairs Inquiry into Gene Patents reported to government on 26 November 2010. It recommended that the government make a number of amendments to the Patents Act 1990 in line with recommendations of the 2004 ALRC report Genes and Ingenuity: Gene Patenting and Human Health (ALRC Report 99). The Senate Committee’s recommendations included the following:

The Senate Committee’s recommendations included:

Recommendation 1

3.156    The Committee recommends that the Government support and expand on the collection of data, research and analysis concerning genetic testing and treatment in Australia, in line with recommendation 19-1 of the 2004 Australia Law Reform Commission’s Report, Genes and Ingenuity.

Recommendation 4

5.161    The Committee recommends that the Government provide a combined response addressing the Committee’s inquiry into gene patents; the 2004 report on gene patents by the Australian Law Reform Commission; the review of patentable subject matter by the Australian Council on Intellectual Property (ACIP); and the review of Australia’s patent system by IP Australia. The Committee recommends that the response be provided not later than mid-2011 or three months after the release of the findings of all reviews.

Recommendation 10

5.179    The Committee recommends that the Patents Act 1990 be amended to provide that an invention will satisfy the requirement of ‘usefulness’ in section 18(1) only in such cases as a patent application discloses a ‘specific, substantial and credible’ use; the Committee recommends that such amendments incorporate the full set of recommendations on this issue from the Australian Law Reform Commission’s 2004 Report, Genes and Ingenuity (Recommendations 6-3 to 6-4).

Recommendation 11

5.185    The Committee recommends that the Patents Act 1990 be amended to clarify the circumstances in which the Crown use provisions may be employed; and that the Government develop clear policies for the use of the Crown use provisions. The Committee recommends that the Government adopt the Australian Law Reform Commission’s recommendations on this issue from its 2004 report, Genes and Ingenuity (Recommendations 26-1 to 26-3).

Recommendation 12

5.190    The Committee recommends that the Government amend the Patents Act 1990 to clarify the scope of the ‘reasonable requirements of the public’ test, taking into account the recommendation of the Australian Law Reform Commission on this issue in its 2004 report, Genes and Ingenuity (Recommendation 27-1).