Editors --- "Commission news" [2009] ALRCRefJl 19; (2009) 93 Australian Law Reform Commission Reform Journal 59

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Commission News

Privacy Inquiry

The Privacy Inquiry was one of the largest in the Australian Law Reform Commission^’s 33 year history, involving a massive consultation strategy and culminating in a three volume, 2694 page final report, entitled For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008). The ALRC received 585 submissions during the Inquiry process and the final report includes 295 recommendations for reform.

ALRC 108 was tabled in the Commonwealth Parliament on 11 August 2008 and on the same day was launched at the ALRC offices by the Hon Senator John Faulkner, Special Minister for State and Cabinet Secretary, and the Attorney-General, the Hon Robert McClelland MP. The launch was well attended by the Privacy Inquiry Advisory Committee Members, the ALRC's stakeholders and the media.

The Report received widespread coverage nationally from television, radio and print media, both in terms of the Federal Government's response to the Report, and the effect the key recommendations may have on specific industries and the community generally, if implemented.

Since the Terms of Reference were received on 31 January 2006, well over 700 articles have appeared in the media, focussing on various key areas of the Privacy Inquiry including: children; credit reporting; health; data breach notification; emerging technologies and creating a private cause of action for serious invasion of privacy.

The Federal Government will now consider the ALRC's recommendations for reform in two stages. Stage One—over the next 12 to18 months—will consider a single set of privacy principles, credit reporting and health regulations and education concerning new technology. Stage Two will look at the removal of exemptions and at data breach notifications. Harmonising of Commonwealth, state and territory privacy laws and the recommendations relating to the Office of the Privacy Commissioner will be considered concurrently.

Secrecy Inquiry

On 5 August 2008, the Attorney-General announced a new inquiry into Secrecy Laws. The Terms of Reference ask the ALRC to focus on:

• the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government;
• the increased need to share information within and between governments, and with the private sector; and
• achieving more comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information.

The ALRC released an Issues Paper Review of Secrecy Laws (IP 34) on 9 December 2008, posing 63 questions aimed at identifying issues of concern to stakeholders and possible approaches to reform. The Issues Paper has seven chapters examining:

• the context for secrecy provisions, relevant definitions and possible options for reform;
• the history of government secrecy in Australia, and the number and location of secrecy provisions in Commonwealth legislation;
• what kinds of activity are regulated;
• the manner in which exceptions and defences are formulated;
• the different types of penalties that apply;
• the manner in which breaches are handled and investigated, and the role of bodies responsible for overseeing and monitoring the information-protection strategies of Australian Government agencies; and
• the relationship between federal secrecy laws and other federal laws that deal with handling of information, such as privacy, freedom of information and archives legislation.

The Secrecy team began preliminary consultations with key stakeholders in September 2008 for the release of IP 34 and further consultations are planned for February 2009.

The consultation strategy for the Secrecy Inquiry incorporates a talking secrecy phone-in, in early February and the establishment of a Talking Secrecy online discussion forum (http://talk.alrc.gov.au) that will run for the course of the Inquiry.

The objective of the website is to generate discussion and elicit ideas and feedback about the issues raised during the course of the Inquiry—and to provide information about the Inquiry in an accessible manner.

Formal submissions in response to IP 34 closed on 19 February 2009. A more detailed Discussion Paper—which will contain preliminary proposals for reform for community consideration and discussion—is planned for release in May 2009.

Welcome Sabina Wynn—new ALRC Executive Director

In July, the ALRC farewelled Alan Kirkland, who, after almost four years at the ALRC, has taken up the position of Chief Executive Officer, Legal Aid (NSW). Sabina Wynn joined the ALRC as its new Executive Director. Sabina has worked for most of her career in the Australian film industry, most recently as the Director of Industry and Cultural Development at the Australian Film Commission. She has a strong interest in governance, management and communications, with particular focus on using online strategies for increasing access and building relationships.

Kirby Cup 2009

The Kirby Cup is a competition for Australian law students designed to encourage them to engage in the process of law reform. The Kirby Cup is sponsored by the ALRC and the Australian Law Students Association (ALSA). To enter, teams of two students are required to provide a written submission (maximum 15 pages) on a topic of law reform decided upon each year by the ALRC. Based on these submissions, up to three teams are chosen as finalists and are asked to make oral presentations on their papers as part of ALSA's annual conference. A winning team is then selected and the team members' names added to the Kirby Cup trophy. Extracts from the winning submission are published in Reform and on the ALRC^’s website.

In 2009, the topic for the Kirby Cup competition is 'animal welfare law reform' and the question is:

What are the key issues that arise from the present federal regulatory framework for animal welfare? In considering appropriate law reform recommendations, assess whether Codes of Practice for animal welfare provide a reliable and satisfactory mechanism for regulating animal welfare; or whether a national Animal Welfare Act or harmonisation of State/Territory legislation would be more appropriate.

The 2009 ALSA conference will be held in Brisbane from 13–19 July 2009. An extract from the 2008 Kirby Cup winning submission, by Barbara Townsend and Karlo Tychsen from the University of Newcastle, is published in this issue of Reform.

Past Reports Update

ALRC 102—Uniform Evidence Law

On 27 November 2008, the Australian Senate passed the Evidence Amendment Act 2008 (Cth). The Act implements most of the recommendations in Uniform Evidence Law (ALRC 102, 2005), except for those relating to a professional confidential relationships privilege, and the application of the Act to the preliminary proceedings of courts.

One of the primary objectives of the review of the Uniform Evidence Act scheme was to further the harmonisation of the laws of evidence throughout Australia. On 15 September 2008, the Evidence Act 2008 (Vic) received assent. The Act is based on the provisions of the Model Uniform Evidence Bill (the 'Model Bill'), which incorporates almost all of the recommendations of ALRC 102.

The Statutes Amendment (Evidence and Procedure) Act 2008 (SA) amends the Evidence Act 1929 (SA) in relation to the way evidence is taken in sexual offence proceedings, and from other vulnerable witnesses, including children. Some of the amendments are consistent with recommendations in ALRC 102, for example, the adoption of a provision similar to s 275A of the Criminal Procedure Act 1986 (NSW) sets out a comprehensive and detailed list of inappropriate questions a court must disallow in civil and criminal matters (Recommendation 5–2).

ALRC 99—Genes and Ingenuity

In Genes and Ingenuity: Gene Patenting and Human Health (ALRC 99, 2004), the Terms of Reference directed the ALRC to consider—with a particular focus on human health issues—the impact of current patenting laws and practices related to genes and genetic and related technologies on: research and its subsequent application and commercialisation; the Australian biotechnology sector; and the cost-effective provision of healthcare in Australia.

In Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003), the ALRC and the National Health and Medical Research Council (NHMRC) suggested that gene patenting would be a suitable topic for a fresh inquiry under dedicated Terms of Reference. Around the same time, health officials in Australia and overseas were expressing growing concern about the implications of gene patents and licences for the cost of and access to healthcare—especially in relation to tests commonly used to isolate and detect mutations in two genes (BRCA1 and BRCA2) that may indicate a predisposition to breast and ovarian cancer.

In Australia, Genetic Technologies Limited (GTG) claims the rights to these patents and associated methods through its licence arrangements with the US company Myriad Genetics. With public attention focused on the ALRC inquiry, GTG announced in 2004 that it would not enforce its licence rights in Australia as 'a gift to the Australian people^'. However, on 11 July 2008, GTG (under new management) made an announcement to the Australian Stock Exchange that it now intends to enforce its licence rights to the BRCA1 and BRCA2 patents. This has caused considerable consternation in DNA testing laboratories located in public hospitals across Australia—and their parent state and territory health departments—which now believe that their activities may come under legal challenge. On 12 November 2008, Senator Bill Heffernan, Liberal Senator for NSW, announced the establishment of an Australian Parliament Senate Inquiry into human gene patents. The Senate Standing Committee on Community Affairs will inquire into the granting of patent monopolies in Australia over human and microbial genes and non-coding sequences, proteins and their derivatives. Senator Heffernan first raised this issue in the Senate on 16 October 2008 where he questioned the commercialisation and monopolisation of cancer susceptibility genes like BRCA1 and BRCA2.

On 24 November 2008 the new Board of Directors of GTG, which largely replaced the previous Board, announced a formal review of the company's approach to enforcement of its BRCA testing rights. On 2 December 2008, the company announced that it was reverting immediately to 'its original decision to allow other laboratories in Australia to freely perform BRCA testing^'.

ALRC 96—Essentially Yours

Recommendation 12 of Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) stated:

The Standing Committee of Attorneys-General (SCAG) should develop a model criminal offence relating to non-consensual genetic testing, for enactment into Commonwealth, state and territory law. Criminal liability should attach to any individual or corporation that, without lawful authority, submits a sample for genetic testing, or conducts genetic testing on a sample, knowing (or recklessly indifferent to the fact) that the individual from whom the sample has been taken did not consent to such testing.

In April 2007, the SCAG requested that the Model Criminal Law Officers Committee (MCLOC) consider the merits of a draft model offence to criminalise non-consensual genetic testing. On 7 November 2008, the Minister for Home Affairs, the Hon Bob Debus MP, released a Discussion Paper for public consultation which examines the issue of non-consensual genetic testing and proposes draft model offences.

In July 2004, the Productivity Commission completed a review of the Disability Discrimination Act 1992 (Cth). As a part of the review, the Productivity Commission supported Recommendation 9–3 from ALRC 96—to amend the definition of 'disability' in the Act to clarify that the legislation applies to discrimination based on genetic status. The Australian Government has accepted the recommendations of the ALRC and the Productivity Commission on this issue. On 18 July 2008, the Government announced that it will introduce legislative amendments to the Disability Discrimination Act accordingly.

ALRC 85—Australia's Federal Record

The Archives Amendment Act 2008 (Cth) will implement a number of recommendations in Australia^'s Federal Record: A Review of the Archives Act 1983 (ALRC 85, 1998), including:

• the insertion of an objects clause (Recommendation 1);
• amendment of the definition of 'record' to include 'recorded information in any form' (that is, to include electronic form) (Recommendation 24); and
• amendments that introduce the concept of 'in the care of Archives'. Central to the concept is the recognition that National Archives of Australia will not always be the best repository for particular resources. A number of recommendations in ALRC 85 supported this regime.

ALRC 64—Personal Property Securities

In May 2008, the Australian Government released for public comment an exposure draft Personal Property Securities Bill to establish a single national law government security interests in personal property, as recommended in Personal Property Securities (ALRC 64, 1993). On 12 November 2008, the Australian Parliament Senate referred the exposure draft of the Personal Property Securities Bill 2008 to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 24 February 2009.

ALRC 37—Spent Convictions

In Spent Convictions (ALRC 37, 1987) the ALRC recommended that a Commonwealth statute should be enacted making it unlawful to discriminate on the basis of spent convictions in areas relating to employment, in the provision of goods, services, and in the availability of facilities. Although the focus of the reference was on Commonwealth laws and practices, the Commission recommended that the states and territories be encouraged to adopt a similar approach. On 8 November 2008, it was announced that the Commonwealth and State Attorneys-General have agreed to release a model Bill and discussion paper detailing options for national laws to spent minor criminal convictions.