Editors --- "Commission news" [2009] ALRCRefJl 41; (2009) 94 Australian Law Reform Commission Reform Journal 45

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Reform Issue 94 Summer 2009

This article appears on pages 45–48 of the original journal.

Commission News

In February 2009, Emeritus Professor David Weisbrot AM became the longest serving President of the ALRC in its 34-year history. Professor Weisbrot will be leaving the ALRC at the end of November having overseen 15 inquiries during his term. His first inquiry was into the federal civil justice system, which culminated in the landmark report Managing Justice: A review of the federal civil justice system (ALRC 89, 2000). Other significant inquiries followed including Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003); Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006); and the inquiry into privacy laws, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008). Other inquiries during the Weisbrot presidency covered areas of marine insurance; a review of the Judiciary Act; civil and administrative penalties; protection of classified and security sensitive information; gene patenting; uniform evidence law; sentencing; client legal privilege and the three current inquiries into secrecy laws, royal commissions and family violence.

Professor Weisbrot’s commitment to law reform is renowned across the legal, policy and government sectors and the high standing and regard in which the ALRC is currently held—in Australia and internationally—is largely due to his leadership, commitment, judgment and dedication to the integrity of the law reform process. Professor Weisbrot has been a mentor to ALRC staff and interns; and his intelligence, generosity and humour are at the heart of the organisation.

The ALRC also farewells Professor Les McCrimmon, whose term ends in November. Professor McCrimmon has worked at the ALRC for the past four years, leading the ALRC’s landmark Privacy Inquiry as well as the inquiry into uniform evidence laws and most recently into the Royal Commissions Act 1902 (Cth) and related issues. As Commissioner in charge of the review of Australia’s privacy laws, Professor McCrimmon oversaw one of the largest inquiries undertaken in the ALRC’s history. The 2,700-page final report, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), was published in three volumes, and contains 295 recommendations for reform. The breadth of the subject matter covered in this Inquiry required the ALRC to undertake one of the largest community consultation programs in its history, including well over 250 face-to-face meetings with individuals, organisations and agencies, roundtables, phone-ins, and public forums. The ALRC received 585 written submissions from a broad cross-section of individuals, organisations and agencies, which helped direct the ALRC in developing its priorities and determining the ultimate reform agenda. This report provides a clear framework for establishing world’s best practice in privacy protection and is a credit to the leadership provided by both Professor McCrimmon and Professor Weisbrot.

The ALRC wishes both Professor Weisbrot and Professor McCrimmon the very best for their futures, knowing they will remain part of the wonderful extended ALRC family.

The ALRC’s inquiry work has continued at a high level during 2009, with three current inquiries in hand. The Inquiry into Royal Commissions was due to report at the end of October 2009. The Secrecy Inquiry has received an extension to its October deadline and is now due to report on 11 December 2009. On 24 July 2009, the ALRC received Terms of Reference from the Attorney-General for a third inquiry that will address issues concerning violence against women and children. The Family Violence Inquiry is due to report in July 2010.

Implementation report

ALRC 104—Fighting Words

The Australian Government response to Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006) in December 2008 supported almost all of the report’s recommendations. The response indicated that the Australian Government would introduce legislation to implement the recommendations in 2009.

In June 2009, the Anti-Terrorism Laws Reform Bill 2009 (Cth)—a private Senator’s Bill sponsored by Senator Scott Ludlum—was introduced into the Australian Parliament. The Bill proposes to repeal s 80.2 of the Criminal Code Act 1995 (Cth), which provides for the offence of sedition.

ALRC 103—Same Crime, Same Time

At a Federal Criminal Justice Forum in Canberra in September 2008, the Minister for Home Affairs, the Hon Bob Debus MP, noted that some of the main priorities for action that emerged from the Forum included:

• implementation of Same Crime, Same Time: The Sentencing of Federal Offenders (ALRC 103, 2006). The Minister added that the report is now being actively considered;

• providing more diversionary options for sentencing judges and magistrates (which is considered in Same Crime, Same Time); and

• establishment of a Federal Parole Board (Same Crime, Same Time, Recommendation 23–1).

ALRC 102—Uniform Evidence Law

The Evidence Amendment Act 2008 (Cth) was assented to on 4 December 2008, substantially implementing the recommendations of Uniform Evidence Law (ALRC 102, 2005). The amending Act incorporates almost all of the recommendations of Uniform Evidence Law, except for the recommendations in relation to a general confidential relationships privilege. The Government has indicated that it will address these issues at the time it responds to the ALRC’s report Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC 107, 2007).

ALRC 99—Genes and Ingenuity

The ALRC is still awaiting the Government response to Genes and Ingenuity: Gene Patenting and Human Health (ALRC 99, 2004).

In March 2009, the ALRC made a submission to the Senate Standing Committee on Community Affairs Inquiry into Gene Patents, which is primarily looking at the patentability of gene sequences—a much more narrow area than that considered in Genes and Ingenuity. The ALRC drew on its experience from the ALRC inquiry into the intellectual property aspects of genetic material and technologies, which culminated in the release of the Genes and Ingenuity report. The Committee is due to report by December 2009.

In Genes and Ingenuity, the ALRC recommended an amendment to the Patents Act 1990 (Cth) to establish an exemption from patent infringement for acts done to study or experiment on the subject matter of a patented invention; for example, to investigate its properties or improve upon it (Recommendation 13–1). In March 2009, IP Australia released a consultation document Exemptions to Patent Infringement, which sets out a proposal for an experimental use exemption under the Patents Act that is consistent with the ALRC recommendation.

In March 2009, IP Australia also released Getting the Balance Right: Toward a Stronger and More Efficient IP Rights System. This consultation paper proposes a number of amendments to the Patents Act, including two amendments that were recommended in the Genes and Ingenuity report:

• an amendment to include usefulness among the grounds considered during examination and re-examination and clarify that the requirement for usefulness is only satisfied if the patent specification discloses a specific, substantial and credible use for the invention (Genes and Ingenuity, Recommendation 6–3); and

• an amendment to clarify that ‘balance of probabilities’ is the standard of proof applied to all requirements during examination, re-examination and opposition proceedings (Genes and Ingenuity, Recommendation 6–3 and 8–3).

It is expected that drafting instructions based on the proposals in the two IP Australia consultation documents will be completed by the end of 2009, with legislation expected to be introduced in the Australian Parliament in 2010.

ALRC 96—Essentially Yours

The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) received Royal Assent in July 2009 (entry in force 5 August 2009) implementing two key recommendations of Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003):

• amendment of the definition of ‘disability’ in the Disability Discrimination Act 1992 (Cth) to clarify that the legislation applies to discrimination based on genetic status (Recommendation 9–3); and

• amendment of the Disability Discrimination Act to prohibit an employer from requesting or requiring information, including genetic information, from a job applicant or employee, except where the information is reasonably required for purposes that do not involve unlawful discrimination (Recommendation 31–3).

In Essentially Yours, the ALRC also recommended amending the Privacy Act to permit a health professional to disclose genetic information about his or her patient to a genetic relative of that patient where the disclosure is necessary to lessen or prevent a serious threat to an individual’s life, health or safety, even where the threat is not imminent (Recommendation 21–1). In June 2009, after extensive consultation, the National Health and Medical Research Council (NHMRC) finalised the Guidelines for National Privacy Principles about Genetic Information under s 95AA of the Privacy Act. The Guidelines outline the circumstances in which genetic information may be used and disclosed for the purposes of lessening or preventing a serious threat to the life, health or safety of an individual.

ALRC 89—Managing Justice

In December 2008, the Australian Government introduced the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth). The Bill will amend the Federal Court of Australia Act 1976 (Cth) to allow the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. This will be useful in many cases, including where technical expertise is required. In Managing Justice: A Review of the Federal Civil Justice System (ALRC 89, 2000), the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).

ALRC 84—Seen and Heard

The Evidence Amendment Act 2008 (Cth) implements a number of recommendations in Seen and Heard: Priority for Children in the Legal Process (ALRC 84, 1997) that were incorporated into the Uniform Evidence Law report. These include:

• a new test for the competence of a witness to give sworn and unsworn evidence that focuses on the capacity of an individual to understand a question and to give an answer to a question that can be understood (Seen and Heard, Recommendation 98);

• a prohibition on general warnings about the unreliability of children’s evidence, instead permitting a warning to be given only upon request of a party and where the court is satisfied that there are circumstances particular to that child (other than the child’s age) that affect the reliability of the child’s evidence (Seen and Heard, Recommendation 100); and

• confirmation that the court may seek expert opinion evidence to assist it to determine if a witness is competent to give evidence (Seen and Heard, Recommendation 101).

In 2009, the Australian Government released Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020. A number of the outcomes outlined in the Framework reflect recommendations in Seen and Heard, including:

• exploring the potential role for a National Children’s Commissioner (Recommendation 3);

• national standards and monitoring of the out-of-home care system (Recommendations 161–162); and

• improvement in data collection (Recommendation 166).

ALRC 80—Legal Risk in International Transactions

In Legal Risk in International Transactions (ALRC 80, 1996), the ALRC recommended that Australia accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (the Convention) (Recommendation 9). The Convention makes serving documents in foreign countries quicker and cheaper by enabling them to be provided to a designated central authority in participating countries. On 25 June 2009, the Convention was tabled in the Australian Parliament, together with a National Interest Analysis proposing that Australia become a party to the Convention. Tabling in the Australian Parliament represents the first step in the formal process for Australia’s accession to the Convention.

ALRC 77—Open Government

In November 2008, the Australian Government introduced the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth). The Bill repeals the power to issue conclusive certificates in the Freedom of Information Act 1982 (Cth) (FOI Act) for all exemption provisions. While the ALRC did not recommend the removal of all powers to issue conclusive certificates in Open Government: A Review of the Federal Freedom of Information Act 1982 (ALRC 77, 1995), it did recommend that provision for a conclusive certificate in s 33A (documents affecting relations with states) and 36 (internal working documents) of the FOI Act should be removed (see Recommendations 45 and 53A).

In March 2009, the Australian Government released exposure drafts of two Bills that propose a significant overhaul of the FOI Act. Many of the provisions of the Information Commissioner Bill 2009 (Cth) and the Freedom of Information Amendment (Reform) Bill 2009 implement the ALRC recommendations in Open Government:

• the insertion of a new objects clause that explains clearly the underlying rationale for the FOI Act and its significance for the proper working of representative democracy (Recommendations 1–5);

• the establishment of a dedicated Freedom of Information Commissioner (Recommendations 18–27);

• the extension of the FOI Act to contracted service providers and subcontractors delivering services for and on behalf of the Commonwealth (Recommendations 99–102);

• the amendment of the Cabinet documents exemption to ensure that it only covers documents at the core of the Cabinet process (Recommendations 46–48).

• the amendment of the internal working documents exemption to relate to deliberative processes (Recommendations 51–52); and

• the repeal of exemptions for Executive Council documents, documents arising out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations (Recommendations 50, 57, 72).

In May 2009, the ALRC made a submission to the Department of Prime Minister and Cabinet, expressing strong support for the two Bills and noting that they substantially implement the ALRC’s recommendations. The ALRC did, however, note that the Bills do not implement a number of ALRC recommendations (including recommendations relating to time limits, fees, and the application of the Act to parliamentary departments and agencies listed in Schedule 2 of the FOI Act); as well as a number of recommendations relating to the FOI Act made in Australia’s Federal Record (ALRC 85, 1998).

Reconciliation

The ALRC has established an Indigenous Advisory Committee to assist in building stronger relationships with Indigenous peoples, and to ensure that the concerns and perspectives of Indigenous communities are more effectively integrated into the federal law reform process.

Speaking at the historic first meeting in August 2009, ALRC President Professor David Weisbrot said that in establishing an Indigenous Advisory Committee, ‘the ALRC’s intention is to ensure that Indigenous people are effectively engaged in our work, so that Australia’s laws have proper regard to Indigenous interests and protect and promote Indigenous culture’.

‘The ALRC acknowledges that the Australian legal system historically has failed to deliver better legal, social and economic outcomes for Indigenous peoples. As the premier national law reform body, the ALRC has the opportunity—and indeed the obligation—to contribute to greater social justice, equity and inclusion in Australia. Securing the advice and the experience of the outstanding members of the Indigenous Advisory Committee is a critical first step towards realising these important ambitions.’

The establishment of an Indigenous Advisory Committee is one of several initiatives included in the ALRC’s Reconciliation Action Plan (RAP). Other measures in the RAP include commitments by the ALRC to:

• suggest future references that address the particular needs, concerns and priorities of Indigenous peoples;

• facilitate greater direct participation of Indigenous people in the work of the ALRC as staff members and as student interns;

• consult more widely and effectively with Indigenous people and communities; and

• ensure that the ALRC’s reports and recommendations to the Australian Government fully take into account Indigenous perspectives.

Foundation Members of the ALRC’s Indigenous Advisory Committee are:

• Professor Larissa Behrendt, Director, Jumbunna Indigenous House of Learning, University of Technology Sydney;

• Ms Neva Collings, Solicitor, Environmental Defender’s Office;

• Mr Lincoln Crowley, Barrister, NSW Indigenous Barristers Strategy Working Party;

• Ms Megan Davis, Director, Indigenous Legal Centre, University of NSW;

• Mr Darryl French, Program Manager Aboriginal Studies, Tranby Aboriginal College;

• Ms Terri Janke, principal solicitor of Terri Janke & Associates;

• Mr Warren Mundine, Chief Executive Officer, NSW Native Titles Services;

• Mr Steven Ross, Coordinator, Murray Lower Darling River Indigenous Nations; and

• Mr Maurice Shipp, Manager, Indigenous Children’s Strategic Policy, ACT Government.

Internship program

The reputation of the ALRC’s internship program continues to grow both locally and overseas. There was strong competition for the 15 internship places offered by the ALRC in 2008–09. The successful candidates were of a high calibre, providing invaluable input into the ALRC’s inquiries and other areas of the ALRC’s work.

The internship program is an important part of the ALRC’s community education program. An internship at the ALRC provides an opportunity for students to increase their awareness of law reform issues and improve their research and writing skills, while contributing to an ALRC inquiry. Interns become a member of the team for one of the ALRC’s current inquiries and are supervised by a legal officer.

In 2008–09, our interns were involved in a range of other ALRC work areas. Interns provided articles and book reviews for inclusion in Reform, assisted in the development of online forums for ALRC inquiries, attended consultation meetings and participated in ALRC functions.

For the first time, a student from the Harvard Law School in the United States joined the ALRC. Ms Isley Markman worked full-time at the ALRC on the Secrecy Inquiry in January 2008 as part of the Harvard Clinical Placement Program.

Mr Peter Fox, from the University of Maryland in the US, and Ms Smriti Sriram from Durham University in the United Kingdom, were also offered placements with the ALRC as part of the winter intake of interns. Mr Fox worked on various aspects of native title, which were incorporated into Reform ‘Native Title’ (Issue 93, 2009) while Ms Sriram joined the Secrecy team.

The internship program will be expanded in the next year to include a targeted Indigenous internship stream. The ALRC has committed to creating opportunities for Indigenous peoples to be involved with the ALRC as interns as part of the Reconciliation Action Plan.