Appendix F: Implementation Activity 2009–10

The following provides an overview of activity in relation to ALRC reports during2009–10.

For Your Information: Australian Privacy Law and Practice, Report 108 (2008)

Australian Government Response

On 14 October 2009, the Australian Government issued the first stage of its response to ALRC Report 108. The response addresses 197 of the 295 recommendations in the ALRC report. These recommendations relate to:

• the name, structure, objects, definitions and scope of the Privacy Act 1988 (Cth);
• developing technology;
• interaction, inconsistency and fragmentation in the regulation of personal
• information in Australia;
• the privacy principles;
• the powers and functions of the Office of the Privacy Commissioner;
• credit reporting; and
• health services.

The Australian Government accepted the majority of those recommendations.

Exposure drafts of Australian privacy amendment legislation.

On 24th June 2010 the Senate referred the following to the Finance and Public Administration Legislation Committee for inquiry and report by 1 July 2011:

An Exposure Draft of the New Australian Privacy Principles which are intended to form part of a new Privacy Act. Alongside it was issued a Companion Guide to the Exposure draft: Australian Privacy Principles.

This draft was the first of a number of components that are also anticipated to be released for public comment, and then be consolidated to comprise a new Privacy Act.

Each subsequent part will be referred to a Senate Committee for consideration as the drafting of it is completed. It is anticipated that there will be a maximum of three further parts to be referred to this Committee. These are:

• The introduction of comprehensive credit reporting and enhanced protections for credit reporting information;
• specific health information protections; and
• the functions and powers of the Australian Information Commissioner.

The Government added that once the Senate committee has reported on all of theparts, the Bill would be consolidated and introduced into Parliament.

In October 2009, the Government stated that once the first stage reforms have been finalised, Stage Two of the response will consider the remaining 98 recommendations in the ALRC report that the Government has not yet accepted or rejected. This stage will deal with a number of significant and contentious issues, including:

• clarification or removal of exemptions (including the current employee records exemption);
• a scheme for compulsory data breach notification;
• a statutory cause of action for serious invasions of privacy;
• privacy and decision making issues for children and authorised representatives; and
• handling of personal information under the Telecommunications Act 1997 (Cth).

Healthcare Identifiers Act 2010 (Cth)

In 2006, the Council of Australian Governments (COAG) agreed to a national approach to developing individual and healthcare identifiers as part of an electronic health records system.

The Act provides that:

• Medicare Australia will be responsible for establishing and operating the health identifier system;
• collection, use and disclosure of an individual health identifier will be subject to the privacy and other laws applicable to that information; and
• unauthorised disclosure of an individual health identifier may be pursued as a breach of privacy under the Privacy Act and subject to criminal penalties set out in the Bill.

The provisions of the Act are generally consistent with the ALRC’s recommendation in relation to electronic health information systems in Chapter 61 of ALRC Report 108 (Recommendation 61–1).

The Healthcare Identifiers Act 2010 received assent on 28 June 2010, and commenced on 29 June 2010.

Fighting Words: A Review of Sedition Laws in Australia, Report 104 (2006)

National Security Legislation Amendment Bill 2010 (Cth)

On 18 March 2010, the National Security Legislation Amendment Bill 2010 (Cth) was introduced into the Australian Parliament. If passed, the Bill will implement a number of recommendations in Fighting Words.

Schedule 1 of the National Security Legislation Amendment Bill implements the bulk of the ALRC’s recommendations in ALRC Report 104, including:

• the removal of the term ‘sedition’ from federal criminal law and replacing it with references to ‘urging violence offences’, including in the heading to Part 5.1 and Division 80 of the Criminal Code (Cth) (Recommendation 2–1);
• the repeal of the Crimes Act 1914 (Cth) provisions concerning unlawful associations (Recommendation 4–1);
• the repeal of s 30C of the Crimes Act which contains the offence of advocating or inciting to crime (Recommendation 9–3); and
• the amendment of the treason offences in s 80.1(1)(e)–(f) of the Criminal Code to provide, among other things that conduct must ‘materially’ assist an enemy, making it clear that mere rhetoric or expression of dissent are not sufficient, and ensuring a proclamation of an enemy is not sufficient (Recommendation 11–2).

The bill was introduced in the House of Representatives on 18 March 2010, and its second reading was on 25 May 2010. It was introduced into the Senate on 15 June 2010.

Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006)

Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2009 (Cth)

The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) received assent on 13 April 2010. The Act amends the Commonwealth Death Penalty Abolition Act 1973 (Cth) to extend the application of the current prohibition on the death penalty to state laws, to ensure the death penalty cannot be introduced anywhere in Australia. The Act is consistent with the ALRC recommendations in ALRC Report 103 that federal sentencing legislation should prohibit the following sentencing options in relation to federal offenders:

• capital punishment;
• corporal punishment;
• imprisonment with hard labour; and
• any other form of cruel, inhuman or degrading punishment (Recommendation 7–16).

Federal Sentencing Database

The ALRC has been advised that the National Judicial College of Australia has established a federal sentencing database. In ALRC Report 103, the ALRC recommended that the Australian Government should continue to support the development of a comprehensive national database on the sentences imposed on all federal offenders (Recommendation 21–1).

Genes and Ingenuity: Gene Patenting and Human Health, Report 99 (2004)

Senate Standing Committee on Community Affairs Inquiry into Gene Patents

In March 2009, the ALRC made a submission to the Senate Standing Committee on Community Affairs Inquiry into Gene Patents. The ALRC drew on its experience from the ALRC inquiry into the intellectual property aspects of genetic material and technologies, which culminated in ALRC Report 99.

The ALRC noted that the core subject matter of the Committee’s Terms of Reference was squarely considered as part of the ALRC’s 19-month long inquiry, and these issues were addressed in ALRC Report 99. The ALRC emphasised that the ALRC inquiry had found that the patenting of gene sequences is not the major obstacle to providing cost-effective healthcare to Australians in the era of the ‘New Genetics’.

The ALRC also submitted that because monopoly exploitation rights granted by a patent extend (with some limited exceptions) for twenty years—many or most of the problems caused by patents granted over gene sequences, or overly broad patents, are transient ones.

The Committee was to report by June 2010. However, the Senate has extended the reporting time for the Gene Patents Inquiry until 2 September 2010.

Essentially Yours: The Protection of Human Genetic Information in Australia Report 96 (2003)

On 19 December 2009, The National Health and Medical Research Council (NHMRC), in cooperation with the Office of the Privacy Commissioner (OPC), released new guidelines to assist health practitioners in making decisions about disclosing genetic information to their patient’s genetic relatives.

In 2003, the ALRC’s joint inquiry with the Australian Health Ethics Committee led to an amendment of the Privacy Act regarding the disclosure of genetic information by health practitioners.

The amendment required the development and issuing of these guidelines under s 95AA of the Privacy Act, which specify the strict requirements that must be met by health practitioners if they are faced with the difficult decision of having to disclose genetic information without patient consent.

The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report 92 (2001)

Draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth)

In July 2009, the Attorney-General’s Department released a Draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth). The Bill is the result of a review which commenced in 2006.

Key proposals in the exposure draft legislation are directed towards reducing delays in current processes, ensuring Australia does not become a safe haven for fugitives and the proceeds of crime, and expanding the range of law enforcement tools available through the mutual assistance process. The proposed reforms maintain appropriate safeguards and judicial review, and strengthen certain human rights protections in the existing legislation.

The ALRC made a submission to the review highlighting recommendations made in ALRC Report 92.

Currently, functions under the Extradition Act 1988 (Cth) and the Mutual Assistance Act in Criminal Matters Act 1987 (Cth) are exercisable by state and territory magistrates. Part 1 of the Bill contains amendments which would enable Federal Magistrates to perform functions under these Acts, in addition to state and territory magistrates. It is proposed to confer on Federal Magistrates all functions currently conferred on state and territory magistrates under the Extradition Act and the Mutual Assistance Act (with the exception of those conferred by Division 2 of Part VI relating to proceeds of crime proceedings which can only be heard before state and territory magistrates). Part 1 of Schedule 2 of the Bill would limit jurisdiction to review extradition decisions to federal courts.

The provisions of the Bill are generally consistent with Recommendation 20–2 of ALRC Report 92. However, Recommendation 20–2 stated that federal legislation should be amended to provide that original and appellate jurisdiction in matters arising under the Extradition Act be conferred exclusively on federal courts. As stated above, state and territory magistrates will continue to have original jurisdiction in relation to extradition and mutual assistance matters.

Managing Justice: A Review of the Federal Civil JusticeSystem, Report 89 (2000)

Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth)

The Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) received assent on 7 December 2009. The Act amends 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 ALRC Report 89, the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).

Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth)

The Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) received assent on 4 December 2009. The overarching purpose of the Act is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Under the Act, parties to a proceeding are required to conduct the proceeding in a way that is consistent with the overarching purpose. The Act also broadens the responsibilities of the head of the Court to ensure the ‘effective’ discharge of the business of the court, in addition to their current power to ensure ‘the orderly and expeditious discharge’ of the business of the Court. The Act also introduces various powers of judges to case manage matters, including by limiting the number of witnesses called, and referring matters to alternative dispute resolution. A number of the amendments in the Act are consistent with recommendations made by the ALRC in Managing Justice which generally supported the further development of federal court and tribunal procedures to encourage prehearing conferences and  other communication and contact between relevant experts.

Judicial misbehaviour and incapacity

On 7 December 2009, the Senate Legal and Constitutional Affairs Committee released a report on Australia’s Judicial System and the Role of Judges. The report contains a number of recommendations relating to judicial misbehaviour, including that the Australian Government establish a federal judicial commission modelled on the Judicial Commission of New South Wales (Recommendation 4).

The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 (Cth) is a private member’s Bill, sponsored by Duncan Kerr MP. The Bill was introduced into the House of Representatives on 22 February 2010. The objective of the Bill is to establish an independent Parliamentary Commission to test complaints of judicial misbehaviour or incapacity referred to it by either House of the Parliament.

The ALRC considered complaints against judges in ALRC Report 89, including whether the Australian Government should establish a federal judicial commission modelled on the Judicial Commission of New South Wales. However, the ALRC concluded that such a model would not be permitted under the Australian Constitution. The ALRC therefore recommended that:

• Each federal court and tribunal should develop and publish a protocol for defining, receiving and handling bona fide complaints against judicial officers and members, as well as complaints about court systems and processes (Recommendation 11); and
• The federal Parliament should develop and adopt a protocol governing the receipt and investigation of serious complaints against federal judicial officers. For these purposes, a ‘serious complaint’ is one which, if made out, warrants consideration by the Parliament of whether to present an address to the Governor-General praying for the removal of the judicial officer in question, pursuant to s 72 of the Australian Constitution (Recommendation 12).

By 30 June 2010, The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 (Cth) had not proceeded beyond its first Reading in the House of Representatives.

Open Government: A Review of the Federal Freedom of Information Act 1982, Report 77 (1995)

The Australian Information Commissioner Act 2010 (Cth) and Freedom of Information (Reform) Act 2010 (Cth) were passed by Parliament on 13 May 2010 and received assent on 31 May 2010. These Acts will mainly commence on 1 November 2010, with some provisions commencing 6 months later on 1 May 2011.

On 26 November 2009, the Australian Government had introduced the Information Commissioner Bill 2009 (Cth) and Freedom of Information Amendment (Reform) Bill 2009 (Cth) into the Australian Parliament. Enactment of this legislation would substantially implement many ALRC Report 77 recommendations, in particular:

• 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 (implementing Recommendations 1–5 of ALRC Report 77);
• the establishment of a dedicated Freedom of Information Commissioner;
• the extension of the FOI Act to require agencies to take contractual measures to ensure that they have access to information relevant to the performance of Commonwealth contracts, where the information is created or held by contracted service providers or subcontractors delivering services for or on behalf of the Commonwealth (consistent with Recommendation 99 of ALRC Report 77);
• the abolition of application fees for access requests under Part III of the FOI Act, which is consistent with Recommendations 82, 88, 92 and 93 of ALRC Report 77;
• the reformulation of a public interest test weighted in favour of disclosure of documents—although the ALRC did not specifically recommend the formulation proposed by s 11A, many features of the reformulation are consistent with ALRC Report 77 recommendations, including Recommendations 6, 38 and 39;
• 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);
• 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); and
• the amendment of the exemption provision for documents subject to legal professional privilege so that the exemption cannot be claimed in circumstances where the privilege has been waived (Recommendation 67).

A number of ALRC Report 77 recommendations had not been incorporated into the Bills. These were highlighted in the ALRC’s Submission to the Senate Finance and Public Administration Committee inquiry into the Bills.

On 26 February 2010, in a media release issued by Senator the Hon Joe Ludwig (Cabinet Secretary and Special Minister of State)—the Australian Government announced the appointment of Professor John McMillan AO as the Information Commissioner Designate.

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) received assent on 6 October 2009, which also implemented a number of ALRC Report 77 recommendations.

Personal Property Securities, Report 64 (1993)

In ALRC Report 64, the ALRC identified the need for a single national system to determine priorities between competing personal property security interests and to provide a means of resolving disputes between security interest holders and third parties, including a national register of personal property security interests.

On 14 December 2009, the Personal Property Securities Act 2009 (Cth) received Royal Assent. The Act sets out a single national law governing security interests in personal property. The Act also addresses the creation and extinguishment of security interests in personal property and sets out rules for determining priority among competing interests in personal property, and establishes a single national online register of personal property securities (PPS Register).

Spent Convictions, Report 37 (1987)

A communiqué following the Standing Committee of Attorneys-General (SCAG) meeting on 5 and 6 November 2009 reported that SCAG’s work on a nationally consistent spent convictions scheme was finalised with the public release of the Model Spent Convictions Bill.

In ALRC Report 37, 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 ALRC recommended that the states and territories be encouraged to adopt a similar approach.