ALRC calls for greater flexibility, more options for Royal Commissions and other official inquiries

A legislative framework is required to govern the establishment and operation of official inquiries at the federal level, to ensure that such inquiries have adequate investigatory powers while at the same time ensuring the protection of the rights of individuals concerned, the nation’s peak law reform agency said today.This would put what are now simply ‘ad hoc inquiries’ on the same solid footing as Royal Commissions, and provide more options and flexibility for Governments.

The 75 draft proposals for reform are outlined in an ALRC Discussion Paper, Royal Commissions and Official Inquiries (DP 75), released online today. The ALRC is seeking public feedback ahead of its final report and recommendations—due to be delivered to the Australian Government in October.

The ALRC is reviewing the operation of the Royal Commissions Act 1902 (Cth) and related issues, and also has been asked to consider whether less formal and more flexible statutory alternatives to Royal Commissions may be appropriate in some circumstances.

ALRC President, Emeritus Professor David Weisbrot AM, said that the Royal Commissions Act needs some fine-tuning, but is otherwise operating well.

”There is a need, however, for the Royal Commissions Act to be amended—and renamed the Inquiries Act—to provide a new statutory framework for other official inquiries established by the federal government.

At present, non-statutory inquiries may not have the necessary powers to investigate, compel people to appear before the inquiry or compel the production of evidence. They cannot guarantee adequate legal protection to inquiry members and to staff. In addition, there is insufficient legal protection for people providing information to these inquiries, especially those whose reputations may be called into question.

The result is that non-statutory inquiries may not have all the information necessary to make the best possible findings and recommendations”

Commissioner in charge of the Inquiry, Prof Les McCrimmon, said that “the proposed new statutory framework would introduce another form of inquiry—called Official Inquiries—with similar advantages and outcomes to Royal Commissions, but offering more flexibility and less formality.

“‘In keeping with principles of government openness, transparency and accountability, the ALRC is also proposing requirements for government follow-up in response to inquiry reports and recommendations. For example, the government would be required to make inquiry reports public by tabling them in Parliament and to publish updates on the implementation of inquiry recommendations.”

Prof McCrimmon said that the ALRC has also proposed a number of measures for the use and protection of national security information by Royal Commissions and Official Inquiries.

“This has been an issue for a number of recent inquiries, including the Clarke Inquiry into the case of Dr Mohamed Haneef; and the AWB Food-for-Oil Inquiry. While previous inquiries have been able to prevent inadvertent disclosure of national security information, some have encountered practical difficulties accessing and using such material. The proposed new Inquiries Act would overcome many of these difficulties with special procedures and powers for national security information.”

The closing date for submissions addressing proposals regarding the Inquiry is 22 September 2009, with the final report due to be completed by 30 October 2009.

The Australian Law Reform Commission (ALRC) welcomed today’s announcement by the Commonwealth Attorney-General, the Hon Robert McClelland MP, of new Terms of Reference for an Inquiry to address issues concerning violence against women and their children.

The Terms of Reference ask the ALRC to focus on a number of matters, including:

1. the interaction in practice of State and Territory family violence and child protection laws with the Family Law Act 1975 and relevant Commonwealth, State and Territory criminal laws; and
2. the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context, including rules of evidence, on victims of such violence. 

ALRC President, Emeritus Professor David Weisbrot, noted that family violence remains a profound problem in Australia, and that the current legal frameworks may not be helping. “While legislation will only ever be one part of the solution, it is nevertheless an important part, and it is essential that these laws operate as effectively and consistently as possible.” 

“The protection of women and children is predominantly dealt with under state and territory family and domestic violence laws and child protection laws. These laws vary across the jurisdictions, which may result in women and children being subject to different levels of protection depending upon where they live. There also may be problems recognising and enforcing apprehended violence orders across state and territory borders,” Professor Weisbrot said.

 “Another key issue is how these laws interact with Commonwealth laws touching on family violence, such as the Family Law Act.  The ALRC will explore whether the complexity of Australia’s federal system causes problems, such as inconsistent or incompatible protective orders; any duplication of effort by federal, state and territory courts; or any gaps or inadequacies in the cooperation between those courts and state and territory agencies.

We also want to ensure that the law enables women and children to report family and domestic violence, participate in legal processes, and access appropriate remedies; as well as facilitating the rehabilitation of perpetrators and, of course, the prevention of family violence in the first place.”

Professor Weisbrot noted that this inquiry follows on from the excellent recent work of the National Council to Reduce Violence Against Women and Their Children, which released its National Action Plan in March, and will also build upon previous work by the ALRC.

“The ALRC completed a major inquiry into domestic violence in 1984, and has also considered violence against women and children and related matters in a number of previous reports, including those focusing on the legal rights of children (1997), women’s equality before the law (1994) and uniform evidence laws (2005).

We will be working closely with our counterparts in NSW and around the country to ensure the adoption of an effective and truly national approach to these critical issues.”

The ALRC will now commence its program of community engagement—including through the use of its online ‘Talk to Us’ website—and will publish one or more consultation papers for community debate and feedback. The final report and recommendations are due to be provided to the Attorney-General by no later than 31 July 2010.

Introduction

This briefing provides an overview of the ALRC’s Discussion Paper, Review of Secrecy Laws (DP 74).

On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry into options for ensuring a consistent approach across government to the protection of Commonwealth information and, in particular, to review the secrecy laws currently on the federal statute book. The Terms of Reference for the Inquiry ask the ALRC to consider the balance between the need to protect some Commonwealth information and the need to maintain an open and accountable government through providing appropriate access to information.

The ALRC has identified and considered 507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties. DP 74 indicates the Inquiry’s current thinking in the form of specific reform proposals. In trying to move towards a more open and ‘pro-disclosure culture’, the ALRC proposes a substantial decrease in the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused, or was likely to be caused, to a compelling public interest. In most cases, however, the ALRC proposes that concerns about the protection of Commonwealth information should be addressed through better education and training, improved information handling practices, and public service disciplinary procedures.

The proposals contained in DP 74 do not represent the final recommendations of the Inquiry. The ALRC is seeking further submissions and is undertaking a further round of national consultations on the proposals in DP 74. It is not uncommon for there to be some significant changes of approach between a Discussion Paper and Final Report.

In recent times, the ALRC’s approach to law reform has involved a mix of strategies including: legislation and subordinate regulations, official standards and codes of practice, industry and professional guidelines, and education and training programs. Proposals—and, later, recommendations—may be directed to the Attorney-General, to whom the Report is presented, and also to other government and non-government agencies, associations and institutions.

Discussion Paper structure

DP 74 is divided into 15 chapters. Proposals for reform are not spread evenly throughout. The early chapters provide mainly contextual or background material, which does not lend itself to specific reform proposals. Later chapters are more focused on technical aspects of the law and practice—it is in these chapters that the reform proposals are mainly found.

The chapters fall into four broad areas:

• concepts and comparisons;
• a general criminal secrecy offence;
• specific secrecy offences; and
• administrative duties, practices and procedures.

Concepts and comparisons

The appropriate handling of information is integral to the effective functioning of government. Secrecy laws are one element in a broader government-wide information handling framework. This framework includes other elements such as security classification systems, information sharing regimes, and agency-specific information-handling policies.

However, the legitimate need to maintain the secrecy of some information needs to be balanced against the growing commitment to increased openness and transparency in government.

Freedom of information laws are intended to facilitate the Australian public’s right to know what information the Government holds about them, as well as what information the Government uses to make its decisions. This places the Australian community in a better position to examine and discuss Government activities and to hold the Government to account. Secrecy laws can sit uneasily with such aspirations. The courts have also held that widely drafted secrecy provisions can infringe upon the implied right to freedom of political communication in the Australian Constitution.

In reviewing secrecy laws and considering proposals for reform, the ALRC has tried to balance the public interest in keeping some information confidential with the public interest in open and transparent government. The ALRC examined two contrasting approaches to secrecy laws—regulation based on categories of information that justify secrecy, and regulation based on preventing harm to the public interest caused by the unauthorised disclosure of information. The ALRC prefers the second approach, and proposes that information should only be protected by secrecy laws where disclosure of the information is intended to cause harm, or is likely to cause harm, to identified public interests.

The first five chapters of DP 74 set out this conceptual framework in more detail, including a discussion of other relevant legislation—such as freedom of information, archives and privacy legislation—and provides an overview of confidentiality and secrecy obligations imposed by Commonwealth legislation and the common law. Consistently with the ALRC’s harm-based approach to non-disclosure provisions, the ALRC proposes that the ‘secrecy exemption’ contained in s 38 of the Freedom of Information Act 1982 (Cth)—which provides that documents or information subject to certain secrecy provisions need not be disclosed under the Freedom of Information Act—should be repealed.

A new general offence

Chapter 6 examines the role of administrative, civil and criminal penalty provisions in regulating the disclosure of Commonwealth information, as well as the need for a general overarching secrecy offence applying to all Commonwealth information and all ‘Commonwealth officers’. The chapter proposes that the existing general secrecy offences in the Crimes Act should be repealed and replaced by a new general secrecy offence in the Criminal Code. The existing offence in s 70 of the Crimes Act imposes criminal liability where a Commonwealth officer discloses information ‘which it is his or her duty not to disclose’, but does not require that the disclosure harm the public interest in any way.

In Chapter 7, the ALRC proposes that the new general secrecy offence should only impose criminal liability where a particular disclosure did, was reasonably likely to, or was intended to:

• harm the national security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction, the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue;
• endanger the life or physical safety of any person;
• pose a serious threat to public health or public safety;
• have a substantial adverse effect on personal privacy; or
• have a substantial adverse effect on a person in respect of his or her lawful business or professional affairs or on the business, commercial or financial affairs of an organisation.

Chapter 8 considers some of the essential elements of the proposed new offence—including who should be covered. The ALRC proposes that initial unauthorised disclosures by Commonwealth officers, including Commonwealth contractors, should be covered, and also that subsequent disclosures by third parties should be covered in some circumstances. A subsequent disclosure by a third party would be a criminal offence where the information was disclosed by a Commonwealth officer in breach of the proposed general secrecy offence; and the person knew, or was reckless as to whether, the information had been disclosed in breach; and the person knew, intended, or was reckless as to whether, the subsequent disclosure of the information would harm, or was reasonably likely to harm, one of the public interests set out above.

Chapter 9 considers what exceptions and defences should be available under the proposed general secrecy offence, and what penalties should apply for breach. In particular, Chapter 9 considers the interaction between the new offence and the Australian Government’s proposal to develop public interest disclosure, or ‘whistleblower’ protection legislation in the course of 2009. Due to the timing of the secrecy Inquiry, it may not be possible for the ALRC to make concrete recommendations in relation to this issue but the ALRC has expressed the preliminary view that the two regimes should be consistent, and that comprehensive public interest disclosure legislation is preferable to developing a public interest exception to the general secrecy offence.

Specific secrecy offences

In proposing a general secrecy offence, the ALRC is not suggesting that this should be the only criminal offence provision regulating the disclosure of Commonwealth information. The general secrecy offence is intended to serve as an umbrella offence applying to all current and former Commonwealth officers. However, a plethora of existing specific secrecy offences need to be reviewed in the light of the proposed new general secrecy offence and the policy basis for that offence. In Chapters 10 to 12, the ALRC develops proposals to promote consistency in, and simplification of, Commonwealth secrecy offences—including by repealing a significant number of existing offences.

For example, the ALRC proposes that specific secrecy offences should generally incorporate a requirement that, for an offence to be committed, there must be a reasonable likelihood that the disclosure of information will cause harm to some specified public interest.

The ALRC also proposes that the maximum penalties provided by specific secrecy offences, which vary from a fine of $110 to imprisonment for 25 years, be made more consistent. There is currently wide variation in the maximum penalties provided by secrecy offences protecting very similar types of information.

Most importantly, the ALRC examines instances of substantial replication between the proposed new general secrecy offence and specific secrecy offences, which might justify the repeal of many of the latter offences. It also suggests a process for implementing ongoing review of existing secrecy offences that is informed by detailed drafting directions and other guidance against which existing and proposed secrecy offence provisions can be evaluated.

Administrative duties, practices and procedures

Statutory secrecy provisions and criminal offences play an important role in protecting against the harms caused by the disclosure of some government information. However, the most effective way to prevent the unauthorised disclosure of information is to ensure that individual public servants and others who deal with government information on a regular basis are guided by effective information-handling policies and practices.

Secrecy provisions in the Australian Public Service (APS) Code of Conduct should provide a clear statement to APS employees and the public about the level of protection of Commonwealth information that can be expected from APS employees. In Chapter 13, the ALRC makes several proposals aimed at clarifying and consolidating the administrative secrecy obligations imposed on public servants. In particular, the ALRC proposes that the APS Code of Conduct only apply where the disclosure of information is reasonably likely to harm the effective working of government. The ALRC also suggests an interpretive framework for determining when disclosure is likely to cause such harm including the requirement that a disciplinary authority should have regard to the likelihood that the information would be subject to release under the Freedom of Information Act or through some other means.

Many people that have access to Commonwealth information are not APS employees—they may be employed under another statutory regime, employees of a state or territory government, or private sector contractors. In Chapter 14, the ALRC proposes models for harmonising the administrative secrecy regimes that apply to other Commonwealth employees—such as members of the Australian Defence Force, and the Australian Federal Police and employees of public authorities—with the Public Service Act framework. In addition, the ALRC makes several proposals regarding confidentiality provisions in government contracts and in the terms and conditions of appointment for members of boards and committees to better protect confidential Commonwealth information.

Finally, in Chapter 15, the ALRC considers the tools available to government agencies to foster effective information-handling practices, for example, through developing and implementing information-handling policies, engaging employees in training programs, and maintaining suitable ICT infrastructure. In order to facilitate information sharing, the ALRC proposes that Australian Government agencies that regularly share information with other agencies or bodies should enter into memorandums of understanding setting out the terms and conditions for the exchange of information.

Further information

The full Discussion Paper can be downloaded from the ALRC’s website www.alrc.gov.au.

Hard copies and CDRoms are available from the ALRC.

Submissions on the ALRC’s proposals are due by 7th August. The final report and recommendations in this Inquiry are due to be provided to the Attorney-General by 30 October 2009.

The Australian Law Reform Commission (ALRC) today released a Discussion Paper for its current inquiry into federal secrecy laws—Review of Secrecy Laws (DP 74, June 2009)—which makes 65 proposals for reform.

The ALRC is seeking community feedback about how to balance a growing commitment to increased openness and transparency in government with the legitimate need to maintain the secrecy and confidentiality of some Commonwealth information. 

ALRC President, Professor David Weisbrot, stated “Secrecy provisions are generally found in laws relating to national security and in areas in which citizens have a right to expect that their sensitive personal information will be protected from unauthorised disclosure—such as the information provided to the Tax Office or Medicare. That’s appropriate and unsurprising. However, the ALRC’s ‘mapping’ of the federal statute book has identified 507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties. That’s more reflective of the old culture of secrecy than the current preference for openness.

“Information handling, management and protection by the Commonwealth should be seen as part of a continuum. At the ‘open government’ end, there’s information that should be disclosed as a matter of course. Most departments and agencies now maintain websites that provide an enormous amount of information. This is desirable, both in the interests of promoting open and accountable government, as well as being efficient—the more information that’s publicly available, the fewer requests, questions and FOI applications departmental officers have to handle.

“At the opposite end, there is the information that is strictly secret and closely protected—most obviously, information relating to national security. Even at this end of the spectrum, however, the system allows for information-sharing among government agencies and private partners where necessary, and there may be circumstances in which secret information should be revealed through prescribed ‘whistleblower’ mechanisms.”

ALRC Commissioner in charge of the Inquiry, Professor Rosalind Croucher, commented “In trying to shift the system towards a more open and ‘pro-disclosure culture’, the ALRC proposes a substantial decrease in the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused, or was likely to be caused, to a compelling public interest. These include harm to: national security, defence or international relations; law enforcement operations; the physical safety of a person; or public health.  Of course, the offence is more severe where the person intends to cause harm or is recklessly indifferent to the consequences. Mostly, however, it seems preferable to deal with these issues through better education and training, improved information handling practices, and by utilising public service disciplinary procedures. 

“The key focus of the ALRC’s proposed reforms is on achieving much greater clarity for the public servants and others who handle Commonwealth information. This involves creating a new general secrecy offence applicable to Commonwealth officers; substantially consolidating the scattered specific offences, based on a common set of principles; and imposing a rationalised penalty structure. Importantly, we also propose recasting the Australian Public Service Code of Conduct in this area to clarify the duty owed by officers.

“Finally, in doing all of this, we must be careful to fit in with the surrounding matrix of laws on Freedom of Information, privacy and whistleblower protection—areas which are also currently under review.” 

Submissions on the ALRC’s proposals are due by 7 August 2009.  The final report and recommendations in this Inquiry will be provided to the Attorney-General at the end of October. 

David Weisbrot, President, Australian Law Reform Commission, at Sydney Law School, The University of Sydney, 19 May 2009 | Panel Discussion (David Weisbrot AM, Celeste Black, Peter Sankoff, chaired by Katrina Sharman)

1.  David: As President of the ALRC, you spend a lot of time looking at deficiencies in certain laws and making recommendations for change. What do you think is the greatest deficiency in Australia’s regulatory framework for animal welfare and how would you like to see it change? (3mins)

DW: I think we need:

1. national – or at least harmonised – legislation that protects animal welfare; and
2. is not set at the lowest common denominator; or
3. is so riddled with loopholes that you could drive a large factory farm truck though.

For example, the Prevention of Cruelty to Animals 1979 (NSW) and Crimes Act 1900 (NSW) s 530(1) are fairly typical:

prohibit ‘serious animal cruelty’, an offence committed where a person, ‘with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal’. 

Maximum penalty for breach is five years imprisonment.  

However, a major loophole is provided in sub-section (2), according to which persons are not criminally responsible if they have acted in accordance with ‘routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice’, or with legal authority under the Animal Research Act 1985 (NSW).  

And, perhaps not surprisingly given the size, influence and economic importance of the agriculture and livestock industry in Australia, such practices as factory farming and battery egg production are regarded as ‘routine activities’ for the purposes of the law.  

Along similar lines, I’d like to see high quality, national legislation regulating animal imports and exports – especially live animal exports – as well as animal welfare food labelling requirements, to unlock consumer choice and power, and thus drive good behaviour from the industry.  

4.  David: you’ve been quoted previously as saying that ‘animal law is potentially the next social justice movement’. Can you tell us a bit about why you made this statement and is the movement coming – or is it actually here?  (3mins)

DW: I think that’s been by far the most widely quoted thing I’ve ever said – and I’m not at all unhappy about that, even though some of those repetitions are weirdly out of context (and probably intentionally so.  Yes, that, means you, Miranda Devine).  

What I was getting at is that: we are continuously evolving as a society, and try to tackle areas of injustice and inequity.   And although it may seem a long and frustrating process for those involved, we do actually move over time from the kernel of an idea – maybe even an unpopular idea – to the growth of a social justice movement, to a time not long after when it seems ridiculous that we ever thought otherwise.

So only 150 years, we had slavery in the US and other western societies, and now we have a black President in the US.
We’ve had major changes in the legal and social status of women.
We’ve had major changes in the legal status of Indigenous people – even though we’re nowhere near closing the social and economic gap yet.

It’s a challenge explaining to your kids that not so long ago, black people and women were regarded legally as property – as the chattels of white men.  Much like animals are now.

We’ve seen a tremendous rise in consciousness about environmental issues.
Just recently, we’ve seen changing attitudes and key changes to the laws about the rights of same sex couples.

And now, I think we’re approaching a change in the zeistgeist, or reaching the ‘tipping point’, to use Malcolm Gladwell’s catch phrase, in respect of animal welfare. 

• Look at the growth in the number of supermarket shelves devoted to organic and free range food products.
• Look at the completely changed social attitudes to fur as fashion.
• Look at the growing concern about the use and welfare of animals in research.
• Look at the growth in the number of Animal Law courses in law schools.
• Look at the growth in the number of lawyers willing to do pro bono work on behalf of animals.

And so on.

But I don’t think we’re quite there yet.

We still haven’t got animals welfare/animal rights onto the political agenda – politicians are not being asked, or required to answer, what they are doing to address the problems (the way they are in respect of racial or gender-based disadvantage, or global warming, for example).    Soon, I hope!

David Weisbrot, Tranby College Glebe, 8 April 2009

Part one, c11.15am

Thank you Lyndon Coombes, for that Introduction—and for allowing us the use of these wonderful facilities at Tranby Aboriginal College.  This year the ALRC and Tranby have forged a special relationship, and one that I am sure will remain warm and productive into the future. 

And thank you very much Michael West, for that Welcome to Country. 

And WELCOME friends—

On behalf of the Australian Law Reform Commission, let me acknowledge the Gadigal people of the Eora nation, who are the originators of the customary laws and the traditional owners and custodians of the land on which we meet— and I pay my respects to their elders, both past and present. 

We extend that respect to other Indigenous peoples, the first people of this land.  We acknowledge the vital contribution that Indigenous people and cultures have made, and still make, to the nation that we share.  As Australians, we walk together towards the future.

The ALRC is fortunate, as always, to have the warm support of many distinguished people here today, including among others:  

• Attorney-General, the Hon Rob McClelland MP
• Mr Tom Calma, ATSI Social Justice Commissioner
• Chief Justice, Federal Court of Australia, the Hon Michael Black AC
• Former ALRC President, Dr Elizabeth Evatt, and current Commissioners and staff of the ALRC
• Reconciliation Australia: CEO Paul O’Callaghan, Adam Mooney and Kerrie Nelson
• Reform authors: Tom Calma, Sean Brennan, Vance Hughston SC, Tony McAvoy, Alison Vivian, Neil Ward, Graeme Neate (President of the National Native Title Tribunal) and Emeritus Prof Garth Nettheim AO ( a Living Legend in this field, whom I understand taught the AG some years ago at UNSW).  Chief Justice Robert French—a former ALRC Commissioner—and the Minister Indigenous Affairs, the Hon Jenny Macklin MP, both of whom contributed important pieces to this collection, send their apologies.
• John McKenzie, Chief Legal Officer, ALS (NSW/ACT) 
• Alan Kirkland, CEO of Legal Aid NSW
• Janet Mooney, Director of the Koori Centre
• Representing the US Consul-General’s office, Casey Mace.

Today we’re launching two documents, the ALRC’s special edition of Reform on Native Title, and the ALRC’s inaugural Reconciliation Action Plan (RAP)

It’s my genuine pleasure this morning to introduce the Australian Attorney-General, the Hon Rob McClelland, to formally launch the RAP.

When I first met with Rob McClelland in his new capacity as AG, shortly after the November 2007 elections, I informally raised with him some areas I believed were in critical need of law reform, some of which might become potential projects for the ALRC. 

And the very first thing that the Attorney said in reply was: We must address problems with Native Title to make sure it’s delivering positive outcomes for Indigenous communities. 

Since that time, we’ve had:

1. the historic Apology to Indigenous people, offered by the Prime Minister in the Parliament just over a year ago.
2. Just a few weeks ago, the Attorney introduced important amendments to the Native Title Act, to achieve quicker, more flexible negotiated settlements of native title claims. 
   
   As the Attorney stated on that occasion, “Native title is about more than just delivering symbolic recognition.  Native title is an opportunity to create sustainable, long-term outcomes for Indigenous Australians.”
    
3. Just a few days ago, the Australian Government announced that it now supports the United Nations Declaration on the Rights of Indigenous Peoples, joining the 143 other nations that supported the Declaration, which was 22 years in the making. 
   
   Remarkably, Australia was one of only four countries to vote against the Declaration on 17 September 2007; happily, we have now reversed that bad mistake. 
    
4. Perhaps less well know than the other initiatives, but nevertheless very important, was the decision of the Attorney-General to ask all of the agencies within his portfolio—including the ALRC—to develop Reconciliation Action Plans (RAPs).  

And so we are particularly thrilled to have the Attorney here with us today to launch our RAP.

This initiative really captured the imagination—and inspired the creative energies—of the whole Commission.  Our RAP Committee (which was meant to be ‘small’, but soon comprised 1/2 the Commission!) got wonderful advice about how to proceed from:

• Steven Ross, Murray Lower Darling Rivers Indigenous Nations
• Megan Davis, Director of the Indigenous Law Centre, UNSW
• Neva Collings, NSW Environmental Defenders Office; and
• Maurice Shipp (then Director of Studies at Tranby).

We then refined the Plan with expert assistance from Reconciliation Australia—especially Kerrie Nelson, the Adviser on Government RAPs—and we hope to keep working closely with you to further develop the Plan over time.  (Thank you Kerrie for describing the ALRC’s RAP as setting the ‘benchmark’ for other government agencies.)

With this RAP, the ALRC commits itself to a number of important actions.  To mention just a few:

1. Everyone at the ALRC was involved in a very successful two-day Aboriginal Cultural Appreciation Training program, which was devised and delivered at Tranby by Maurice Shipp—whose generous gift of original artwork now forms the cover of our RAP.  
2. We developed a Welcome to Country and Acknowledgment of Country Protocol, which we have relied upon today.
3. We have established an Indigenous Advisory Committee, to advise on all aspects of the ALRC’s work, including the identification of potential future projects and the improvement of our engagement and consultation with Indigenous communities.  I am delighted to announce, for the first time, the distinguished Membership of that Committee:
   • Prof Sally Goold OAM, ED of the Congress of ATSI Nurses and the 2006 Senior Australian of the Year
   • Tom Calma
   • Neva Collings
   • Megan Davis
   • Steven Ross
   • Maurice Shipp (now with the ACT Government)
   • Professor Larissa Behrendt, UTS and the Jumbunna Learning Centre
   • Terri Janke, Entertainment, Cultural Heritage and Media Lawyer
   • Darryl French, Program Manager, Tranby Aboriginal College; and
   • three others still to be confirmed.
4. We are in the process of establishing a dedicated Indigenous Law Student Internship program.
5. We are committed, wherever possible, to promoting ATSI artists and designers—and you can see firsthand the spectacular results produced by Gilimbaa, the company that designed this special issue of Reform.  Special thanks and congratulations to David Williams, the Creative Director of Gilimbaa, and Amanda Lear, Managing Director, both of whom have flown from Brisbane to be with us today.

The RAP is a work-in-progress and a living document — this is just our first step.  We know there is more to achieve. 

And now, finally, to formally launch the ALRC’s RAP, I’d like to call upon the Attorney-General, the Hon Rob McClelland MP.

Part two, c11.30am

Thank you very much, Attorney. 

Flowing out of that initial conversation with the Attorney, the ALRC decided to help contribute to informed community debate about Native Title by dedicating the latest edition of our journal Reform to that topic.

I must emphasise that this is not an ALRC report, and it doesn’t contain any formal findings or recommendations.  What we have endeavoured to do is to present a wide range of voices from the leading thinkers in the complex area—and importantly the majority of the authors in this Issue are Indigenous people.

Some of those voices are reformist, some are radical; some are dispassionate, and some make plain their bitter disappointment.  We need to hear all of those perspectives, and take in all of those ideas for change. 

My personal special thanks to Prof Les McCrimmon, the supervising Commissioner for this edition; Sabina Wynn, who handled the production; and Erin Mackay, Carolyn Adams, Jonathan Dobinson, Michelle Hauschild and Vicki Jackson for their editorial support. 

We were very fortunate to get ATSI Social Justice Commissioner Mr Tom Calma to write the lead, scene-setting, article in this edition—and we are again very honoured to have him here to launch Reform 93: Native Title.

Mr Calma is an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group, whose traditional lands are south west of Darwin and on the Coburg Peninsula in Northern Territory, respectively. He has been involved in Indigenous affairs at all levels, from local to international, and has worked in the public sector for over 35 years, including as a teacher and a diplomat.  Not least, he was GQ magazine’s 2008 Man of Inspiration. 

Part three, 11.45am

Emma Donovan has established herself as one of Australia’s finest Indigenous artists seamlessly blending genres from Country and Gospel to Soul and Reggae with her traditional language—Gumbayngirr.

Emma’s vast concert experiences include performances in The Royal Concert Hall, London; Musee de Quai Branli, Paris; Benaki Museum, Athens; Tjibaou Cultural Centre, New Caledonia; Festival of Pacific Arts in Palau; Treaty Grounds of Waitangi, New Zealand; and the concert hall of the Sydney Opera House with the Melbourne Symphony Orchestra.

With the inclusion of traditional language through her songs, Emma is committed to educating the global community to understand more about the depth of Aboriginal culture and spirituality.

Emma’s new EP & Video, entitled Ngarraanga (‘Remember’), will be launched to the media on May 28th and is a tribute to the Stolen Generations.

A new vision for native title is needed to deliver on the hopes and expectations of Indigenous and non-Indigenous Australians following the High Court’s decisions in Mabo and Wik. That is the message emerging from the latest edition of the ALRC’s Reform journal, to be launched today in Sydney by the Attorney-General of Australia, the Hon Robert McClelland—the Minister responsible for Native Title—Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma, and ALRC President, Professor David Weisbrot.

Professor Weisbrot said that “There now appears to be a real mood for change in the Australian Parliament, with the recent announcement by the Attorney-General of proposed significant amendments to the Native Title Act, so it is very timely to hear the voices of a range of leading experts in this field.

“While it is theoretically possible for native title disputes to be settled quickly and cooperatively, the experience has been otherwise. The combination of procedural and evidential complexity, high stakes, multiple parties, uncertainty of outcome, and a winner-takes-all approach means that most cases are heavily litigated, go on for years, cost a fortune in legal and other costs—and often result in crushing disappointment, since claimants bear the onus of proof in difficult circumstances.

“This edition of Reform contains 17 articles by a remarkable collection of eminent authors. Tom Calma has written the introductory article, describing the ‘failing framework’ of the native title system. Unfortunately, few would now seriously argue with that characterisation. We are also privileged to include an article by the Chief Justice of Australia, the Hon Robert French—formerly a part-time Commissioner of the ALRC—which offers some ideas for ‘lifting the burden’ of native title.

“Indigenous Affairs Minister Jenny Macklin sets out her vision for better utilising native title agreements and royalty payments to help close the gap between Indigenous and non-Indigenous Australians,” Prof Weisbrot said.

Other contributors include: Megan Davis, Director of the Indigenous Law Centre, UNSW, on the implications of the UN Declaration on the Rights of Indigenous Peoples for Australian law; Monica Morgan, a Yorta Yorta woman, who makes a powerful statement about the personal impact that an adverse native title determination can have on Indigenous claimants; Tony McAvoy, one of eight Indigenous barristers currently practising in Australia, offers a blueprint for protecting the ‘rights and interests of Indigenous people, while streamlining the convoluted processes’ of the native title system; and Steven Ross and Neil Ward, who argue for a new paradigm of Indigenous involvement in land and water management, based on respect for Indigenous people’s contemporary relationships with their country.

The ALRC also launches its inaugural Reconciliation Action Plan (RAP) today, aimed at ensuring that Indigenous people are effectively engaged in the work of the ALRC and the processes of law reform, so that Australia’s laws have proper regard to Indigenous interests, protect and promote Indigenous culture and improve social and economic outcomes for Indigenous people.

Professor Weisbrot said, “In common with many institutions, our legal system has failed historically to guarantee better social and economic outcomes for Indigenous peoples. As the national law reform body, the ALRC has the opportunity to contribute to social justice, equity and inclusion in Australia. Through this RAP, we have committed ourselves to practical initiatives to begin this process, starting with the establishment of an Indigenous Advisory Committee and an Indigenous student internship program.”

The Australian Law Reform Commission today released an Issues Paper, Review of the Royal Commissions Act (IP35) seeking feedback from the community on 49 questions posed as part of its current review of the Royal Commissions Act 1902 (Cth).

The ALRC has been asked by the Attorney-General, the Hon Robert McClelland MP, to review the operation of the Act—which has been in force since 1902—and in particular to consider whether less formal alternatives to a Royal Commission may be appropriate in some circumstances.

ALRC President Professor David Weisbrot noted that “Royal Commissions look at issues of great public importance and play a very important role in ensuring that systemic failures are addressed. When there are controversial issues that cannot be handled satisfactorily by the courts or the political process, there are invariably calls for the establishment of a Royal Commission—and there are often expressions of disappointment when other ‘lesser’ forms of inquiry are established, such as the inquiries into the treatment of Dr Mohamed Haneef and Cornelia Rau.

“Royal Commissions usually prove to be very expensive. Precise figures are surprisingly difficult to pin down, but we estimate that, in today’s dollars, the Royal Commission into the Building and Construction Industry cost taxpayers over $70M, the one into the collapse of insurer HIH cost over $47M, and the Royal Commission into Aboriginal Deaths in Custody cost over $50M.

Professor Weisbrot stated “A key concern for the ALRC is whether an alternative model of executive inquiry might provide similar advantages and outcomes to Royal Commissions, in terms of respect, independence, protection of witnesses and so on, while offering more flexibility, less formality and greater cost-effectiveness.”

Royal Commission powers are another issue under the spotlight. Commissioner in charge of the ALRC Inquiry, Professor Les McCrimmon, noted that, “The Act currently gives Royal Commissions a wide range of coercive information gathering powers. For example, a Royal Commission can apply for a search warrant, summon witnesses to give evidence and require the production of evidence. The exercise of such powers must be balanced carefully against the rights of those being investigated.”

“The Royal Commissions Act also contains a number of criminal offences that can be used to punish failures to comply with the requirements of a Royal Commission, interfering with witnesses, or interfering with the work or authority of a Commission. We will be exploring whether civil penalties may be more appropriate in some of these contexts,” Professor McCrimmon said.

Along with the release of the Issues Paper, the ALRC has also developed an Online Discussion Forum organised around the key questions being considered in this inquiry, making it easy for people to share their ideas and experiences at <http://talk.www.alrc.gov.au>.

The Review of Royal Commissions Issues Paper and further information about this Inquiry are available from the ALRC website.  The closing date for written submissions in response to the Issues Paper is 19 May 2009.

The final report and recommendations are due to be presented by 30 October 2009. 

The Australian Law Reform Commission (ALRC) and the Australian Law Students’ Association (ALSA) today called on law students to register their interest in entering the 2009 Kirby Cup, one of Australia’s most prestigious student law reform competitions. Registration closes on 10 April 2009. The topic for this year’s competition is on animal rights and teams will be asked to consider the key issues that arise from the present federal regulatory framework for animal welfare.

The Kirby Cup Law Reform Competition is held each year in association with the ALSA Conference and encourages law students to engage in a practical way with the process of law reform.

Teams of two are asked to prepare a written submission on the topic by 4 May 2009. Up to three teams are then chosen to advance to the Oral Advocacy Round, which will be held in Brisbane during the ALSA Conference in July.

ALRC President Professor David Weisbrot said, “The treatment of animals is increasingly becoming a social and legal issue, as well as an important economic one. To date, the focus largely has been on human health in relation to food standards and labelling, with little consideration of the treatment of animals in the farming and food process.

“However, as with other social justice movements, activists are seeking to push the existing boundaries and achieve law reform through a range of strategies, including lobbying for legislative change; utilising targeted and test-case litigation; undertaking community and professional education campaigns; and harnessing the power of consumers in the marketplace. This area of law is set to become a major focus of reform in the coming years”.

The Kirby Cup Law Reform Competition asks students to consider appropriate law reform recommendations, and 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 and territory legislation would be more appropriate.

Teams wishing to participate must register for the competition by 10 April 2009.

Entry forms are available on the ALRC website at <www.alrc.gov.au/kirbycup>. Written submissions must be lodged with the ALRC by 4 May 2009, with the oral advocacy component held during the ALSA Conference in Brisbane, 13–19 July 2009. Full terms and conditions are available on the ALRC website.

The Australian Law Reform Commission (ALRC) today announced a national two day phone-in and new online discussion forum as part of its commitment to engaging in widespread community consultation on reform of Commonwealth secrecy laws. 

Anyone who has ever been involved in handling Commonwealth information will have the chance to speak out about their personal experiences and concerns in a national secrecy phone-in on Wednesday 11 February and Thursday 12 February. The ALRC is also launching a new consultation vehicle through its Talking Secrecy online forum.

ALRC President, Professor David Weisbrot, said:

“Consultation is part of the ALRC’s DNA and we are determined to use new technologies to expand that process. The online forum and national phone-in together comprise the next critical steps in the ALRC’s consultation process following the recent release of the Issues Paper, Review of Secrecy Laws (IP 34, 2008). This paper seeks feedback about how to balance the need to maintain an open and transparent government, while still protecting some Commonwealth documents and information—for the purposes of national security, for example.

“The ALRC now has mapped over 500 secrecy provisions spread across 173 pieces of legislation and these—associated with a myriad of administrative, civil and criminal penalties—present a complex and confusing scenario of options for individuals handling Commonwealth information.

“Some secrecy provisions—normally pertaining to defence and security—regulate the activities of anyone, including the media, who comes into possession of Commonwealth documents or information, imposing obligations on them. If the individual handles the information incorrectly, he or she may face heavy penalties, including jail.”

Commissioner-in-charge of the Secrecy Inquiry, Professor Rosalind Croucher, said that the phone-in will enable individuals to speak about their personal experiences with complete anonymity and will assist in shaping the development of proposals, and ultimately recommendations, for workable laws and practices.

“To facilitate more public discussion about secrecy laws, the ALRC’s Talking Secrecy online forum will encourage interactive comments and debate that will run the course of the Inquiry. This is a first for the ALRC.

“The ALRC would like to hear people’s views about a range of questions such as: do secrecy laws stop you from doing your job; what information, if any, should be kept secret; how easy is it to comply with secrecy laws; when should you be allowed to disclose Commonwealth information; and have you or someone you know been in trouble for breaching a secrecy law and, if so, what happened?”

To participate in the secrecy phone-in call 1800 760 291 between 8:00am and 8:00pm (EST) on Wednesday 11 February and Thursday 12 February 2009 (calls are free from landlines but calls from mobiles will incur a charge).

The Talking Secrecy online forum can be accessed at http://talk.www.alrc.gov.au.