ALRC Brief | March 2016

Inquiry update

Launch of the Freedoms final report

The Final Report for the Freedoms Inquiry, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC 129), was tabled and launched by the Attorney-General, Senator the Hon George Brandis QC, on 2 March 2016, at Parliament House in Canberra.

New Inquiry – Elder abuse

As covered in the last Brief, the ALRC has been given new Terms of Reference for an Inquiry on elder abuse.

The ALRC has begun a first round of consultations. The first call for submissions from the public will be made with the release of the Issues Paper, which will coincide with World Elder Abuse Awareness Day on 15 June 2016.

ALRAC 2016

The biennial Australasian Law Reform Agencies Conference was hosted this year by the Victorian Law Reform Commission in Melbourne from 2-4 March. The theme of the 2016 conference was Law reform – survival and growth. Professor Rosalind Croucher AM, President of the ALRC and the Hon Philip Cummins AM, Chair of the VLRC, presented a joint session—‘Big picture’ conceptual references – how appropriate are these for law reform agencies?’. A recording of the session, together with the paper presented by Professor Croucher, is online.

Listen to ALRAC presentation >>

Reform round-up

Serious Invasions of Privacy in the Digital Era (ALRC Report 123)

Earlier this month the NSW Legislative Council Standing Committee on Law and Justice released its report, Remedies for the serious invasion of privacy in NSW, which recommended the establishment of a statutory cause of action for serious invasions of privacy and (at Rec 6) ‘that the Commonwealth government give further consideration to the Australian Law Reform Commission’s recommendations regarding a statutory cause of action for serious invasion of privacy’.

On 15 March, the South Australian Law Reform Institute released a final report which also recommended the enactment of ‘a limited cause of action for serious invasions of personal privacy’ (Rec 1). The Institute recommended that the statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment, and that guidance should be taken from the list of factors recommended in the ALRC Report 123 (Rec 4). At Rec 10, the Institute recommended that a public interest test should be an element of the proposed cause of action and that the statute should set out a list of non-exhaustive examples for the court to consider, the list being made with regard to those set out in the ALRC Report 123 report.

Copyright and the Digital Economy (ALRC Report 122)

On 22 December 2015 the Department of Communications released an Exposure Draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016. Among the proposed amendments concerning disability access to copyright materials was a proposal for a stand-alone fair dealing exception for individuals for the purpose of access by persons with a disability (proposed s 113E). If enacted, this will represent partial implementation of ALRC recommendations in ALRC Report 122 (see Recs 6.1, 16.1 and 14.4).

The Exposure Draft also proposes amendments to the existing preservation copying provisions, intended to provide ‘simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material’. These are in accord with ALRC recommendations (see recs 5.3, 6.1 and 12-1 in particular).

The proposed amendments to the statutory licences for the educational sector accord with a number of aspects of the ALRC’s recommendations. For example, there is clarification that the statutory licences are not compulsory (see proposed s 113T(1) and rec 8.2) and proposed streamlining of the provisions (see proposed s 113P and rec 8.4).

Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124)

The My Health Records Act 2012 (Cth)—Australia’s eHealth legislation—was amended in late 2015 to shift the duty of representative decision-makers from a ‘best interests’ test to a duty to give effect to ‘the will and preferences’ of the individual. The Explanatory Memorandum to the amending legislation stated that this change ‘realises the principle that people with disability have an equal right to make decisions and to have those decisions respected’ and is consistent with recommendations of ALRC Report 124.

The Terms of Reference for the NSWLRC’s review of the Guardianship Act 1987 (NSW) require the NSWLRC to have regard to the findings of ALRC Report 124—as do the Terms of Reference for the ALRC’s own Elder Abuse inquiry.

Intern update

In March the ALRC welcomes four new interns who will work alongside the legal team on the Elder Abuse Inquiry one day a week throughout Semester 1: Michael Quach and Will de Waal from the University of New South Wales, Courtney Lor from Macquarie University, and Angus Nicholas from Sydney University.

Applications for Semester 2 are now open.