ALRC Brief | March 2014

From the President’s Desk

The last few months have probably been some of the busiest since I joined the ALRC. We are currently working on three inquiries and, as I write, we have the Native Title team consulting in Brisbane and heading off to Perth next week, the Privacy team putting the finishing touches to their Discussion paper, due out at the end of the week, and the Disability team heading off to Perth this afternoon with me and Graeme Innes, part-time Commissioner, for extensive consultations on the Equality Capacity and Disability Inquiry. Yesterday I was also at the Gold Coast participating in a ‘Q & A’  with Tony Jones at an event put on by the Conference of Major Superannuation Funds (CMSF). The panel were given the topic ‘Tackling the Age Quake’, looking at the policy challenges of the ageing population and what the financial services sector should be doing.  I was able to contribute from the perspective of our work in the Age Barriers inquiry.  Also on the panel were Susan Ryan, who had been a part-time Commissioner of the ALRC for that inquiry, and Professor John Piggott, who had been on the Advisory Committee. Then in the afternoon I headed up to Brisbane for an industry roundtable hosted by Herbert Smith Freehills with a dozen key industry representatives involved in the Native Title area. We have just released our Issues paper for the Native Title Inquiry and had an excellent first discussion with representatives from BHP Billiton, Rio Tinto, Santos, QGC, Telstra, Harcourt Petroleum and the NSW Minerals Council. The team has also been meeting with Indigenous Native Title Groups and the state government while they are in Brisbane. The Privacy team will also be heading off on consultations around the country next month and we will also start our work on the new Inquiry to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges—the Freedoms Inquiry we have called it for now. So there is not a dull, nor a spare, moment at the Commission, and I hope you enjoy catching up with all the detail in the articles that follow. 

For those interested in the topic of law reform more generally, you may be interested in a new publication, Reforming Law Reform—Perspectives from Hong Kong and Beyond, published by Hong Kong University Press. It is an excellent collection with some great perspectives across the common law world.  I have a review essay about it coming out in Legal Studies in the UK next month.

New Inquiry: Rights, Freedoms and Privileges

In December last year, the Attorney-General, the Hon Senator George Brandis QC, asked the ALRC to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges. Proposed Terms of Reference are available via the ALRC website. If you wish to be notified once we receive final TOR and to keep informed about progress on this inquiry, please subscribe to the enews. 

Inquiry update

Review of the Native Title Act

The Native Title Inquiry team released an Issues Paper on 20 March 2014. It includes questions about what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks concentrating on two key areas: ‘connection requirements relating to the recognition and scope of native title rights and interests; and any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice’.

The Issues Paper is available in HTML, PDF, and as an ebook.

The ALRC is seeking written submissions in response to the questions and issues raised in the Paper.

The legal team is now embarking on a national round of consultations in Brisbane, Perth, Broome and Adelaide, and then next month will travel to Melbourne and Canberra for further consultations.

Serious Invasions of Privacy

A Discussion Paper will be released next week outlining the ALRC’s proposals for a detailed design of a Statutory Cause of Action for Serious Invasions of Privacy and a number of further proposals addressing ways in which the law may reduce serious invasions of privacy in the digital era. This is the second and final stage of broad public consultation in this Inquiry. Submissions will be due to the ALRC by 12 May 2014. We will notify Privacy enews subscribers as soon as the DP is available.

Commissioner in charge of the Inquiry, Professor Barbara McDonald, will be presenting a public talk tomorrow at the Sydney Law School – ‘Private Lives, Public Spheres’.  She will explore the way the law, in Australia and other countries, has developed protection of personal privacy. Professor McDonald will also outline the proposals that will be made in the ALRC Discussion Paper to be released next week.

Equality, Capacity and Disability

The Disability team has been busy with consultations and last month travelled to Melbourne to meet with a range of stakeholders and experts and to attend the “Imagining Social Equity” conference. Next week the team travels to Perth for further consultations. We expect to release a Discussion Paper in mid May, and will call for submissions at that time—due at the end of June. The ALRC has produced an Easy English Issues Paper for the Inquiry and we are very happy to announce that we now have an Auslan version of our information about law reform and our consultation processes.

Copyright and the Digital Economy

The Report for the Copyright Inquiry, Copyright and the Digital Economy (ALRC Report 122) was tabled in Parliament on 13 February 2014. The Report contains 30 recommendations for reform. The key recommendation is for the introduction of a fair use exception to Australian copyright law. 

There has been massive interest in this Inquiry and in the six weeks since the report was made available around 5000 people have visited the report web page, there have been more than 70 media items about the report, and the recommendations have been debated at numerous events, such as the ADA Copyright Forum and the Copyright Law & Practice Symposium.

The Report is available from the ALRC website in a variety of formats.

The Attorney-General has made statements in relation to the ALRC recommendations:

Reform roundup

National Classification Scheme Review

On 19 March, the Hon Michael Keenan MP announced the ‘first tranche’ of reforms to the National Classifications Scheme. In line with ALRC recommendations in ALRC Report 118, the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, introduced into Parliament on 19 March 2014, would amend the Classification (Publications, Films and Computer Games) Act 1995 (Cth) to:

  • broaden the scope of existing exempt film categories and streamline exemption arrangements for festivals and cultural institutions (see Rec 6-3)
  • enable certain content to be classified using classification tools (such as online questionnaires that deliver automated decisions) (see Rec 7-8) 
  • create an explicit requirement in the Classification Act to display classification markings on all classified content (see Rec 8-1)
  • expand the exceptions to the modifications rule so that films and computer games which are subject to certain types of modifications do not require classification again (see Rec 8-2)
  • enable the Attorney-General’s Department to notify law enforcement authorities of potential Refused Classification content without having the content classified first, to help expedite the removal of extremely offensive or illegal content from distribution (see Rec 12-3)

Legal internship program

During the summer 2014 intake, we welcomed eight interns from universities around Australia: Laura Neill and Ravi Gosal from the University of Queensland; Lidija Bujanovic from the University of Melbourne; Andrew Brooks, Sean Mulcahy and Bradley Woods from Monash University; Michelle Meares from the University of New England and Jane Murray from La Trobe University. We’d like to thank all the interns for their contribution to the ALRC’s work.

Lidija Bujanovic, Laura Neill and Andrew Brooks, who worked on the Disability Inquiry and the Review of the Native Title Act, recorded a podcast describing their experiences, including tasks they performed and what they learned as ALRC legal interns. 

This week, the ALRC welcomed four new interns for the Semester 1 program: Timothy Maybury and Georgie Leahy from Sydney University; and Alisha Mathew and Penelope Marles from UNSW.

Applications for the Semester 2 program are now open.