14.10.2011

Appendix C: Terms of Reference 2010–11

Reducing Violence against Women and their Children

The 2009 report of the National Council to Reduce Violence against Women and their Children, Time for Action, acknowledged the complex interaction between State and Territory family/domestic violence and child protection laws and the Family Law Act 1975 (Cth). The National Council also stressed the importance of consistent interpretation and application of laws relating to family/domestic violence and sexual assault, including rules of evidence, in ensuring justice for victims of such violence.

At its meeting of 16–17 April 2009, the Standing Committee of Attorneys-General agreed that Australian law reform commissions should work together to consider these issues.

I refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the issues of:

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

In relation to both issues I request that the Commission consider what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children.

Scope of the reference

In undertaking this reference, the Commission should be careful not to duplicate:

  1. the other actions being progressed as part of the Immediate Government Actions announced by the Prime Minister on receiving the National Council’s report in April 2009;
  2. the evaluation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 reforms being undertaken by the Australian Institute of Family Studies; and
  3. the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model sexual assault communications immunity provisions and vulnerable witness protections.

Collaboration and consultation

In undertaking this reference, the Commission should:

  1. have regard to the National Council’s report and any supporting material in relation to domestic violence and sexual assault laws;
  2. work jointly with the New South Wales Law Reform Commission with a view to developing agreed recommendations and consult with other State and Territory law reform bodies as appropriate;
  3. work closely with the Australian Government Attorney General’s Department to ensure the solutions identified are practically achievable and consistent with other reforms and initiatives being considered in relation to the development of a National Plan to Reduce Violence against Women and their Children or the National Framework for Protecting Australia’s Children, which has been approved by the Council of Australian Governments; and
  4. consult with relevant courts, the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, relevant State and Territory agencies, State and Territory Legal Aid Commissions, the Family Law Council, the Australian Domestic Violence Clearinghouse and similar bodies in each State and Territory.

Timeframe

Considering the scale of violence affecting Australian women and their children and acknowledging the Australian Government’s commitment to developing a National Plan through COAG for release in 2010, the Commission will report no later than 31 July 2010.*

Dated: 17 July 2009

Robert McClelland

Attorney-General

* Extended to 10 September 2010

Review of Discovery Laws to Improve Access to Justice

The 2009 report by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System examined access to civil justice in the federal system from a system-wide, strategic perspective. In considering barriers to justice in relation to court based dispute resolution, the Taskforce noted the high and often disproportionate cost of discovery and recommended further enquiry on the issue.

I refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the issues of:

  • the law, practice and management of the discovery of documents in litigation before federal courts;
  • ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute, including but not limited to:
    • the effectiveness of different types of discovery orders
    • the effectiveness and enforceability of requiring parties to identify and disclose critical documents as early as possible
    • the effectiveness of different costs orders
  • to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible;
  • the impact of technology on the discovery of documents.

In conducting its inquiry, the Commission’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents. In particular, the Commission shall have regard to:

  • alternatives to discovery;
  • the role of courts in managing discovery, including the courts’ case management powers and mechanisms to enable courts to better exercise those powers in the context of discovery;
  • implications of the cost of discovery on the conduct of litigation, including means to limit the extent to which discovery gives rise to satellite litigation and the use of discovery for strategic purposes;
  • costs issues, for example cost capping, security for discovery costs, and upfront payment; and
  • the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as early as possible.

Collaboration and consultation

In undertaking this reference, the Commission should:

  • have regard to the experiences of other jurisdictions, including jurisdictions outside Australia, provided there is sufficient commonality of approach that any recommendations can be applied in relation to the federal courts; and

  • consult with key stakeholders including relevant courts and the legal profession.

Timeframe

The Commission will report no later than 31 March 2011.

Dated 10 May 2010

Robert McClelland

Attorney-General

Impact of Commonwealth Laws on Those Experiencing Family Violence

The 2010 inquiry into family violence by the Australian Law Reform Commission and New South Wales Law Reform Commission (the Commissions) has identified issues beyond its scope relating to the impact of Commonwealth laws (other than the Family Law Act 1975) on those experiencing family/domestic violence. In addition, the 2009 report of the National Council to Reduce Violence against Women and their Children, Time for Action, acknowledges the importance of examining Commonwealth laws that have an impact upon the safety of women and children.

Reference

I refer to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), the issue of the treatment of family/domestic violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family/domestic violence.

I request that the Commission consider what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family/domestic violence.

Scope of the reference

In undertaking this reference, the ALRC should consider legislative arrangements across the Commonwealth that impact on those experiencing family/domestic violence and sexual assault and whether those arrangements impose barriers to effectively supporting those adversely affected by these types of violence. The ALRC should also consider whether the extent of sharing of information across the Commonwealth and with State and Territory agencies is appropriate to protect the safety of those experiencing family/domestic violence.

In undertaking this reference, the ALRC should be careful not to duplicate:

  1. the work undertaken in the Commissions’ 2010 family violence inquiry;
  2. the other actions being progressed as part of the National Plan to Reduce Violence against Women and their Children Immediate Government Actions announced by the former Prime Minister on receiving the National Council’s report in April 2009; and
  3. the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of vulnerable witness protections and recently endorsed principles for the protection of communications between victims of sexual assault and their counsellors.

Collaboration and consultation

In undertaking this reference, the ALRC should:

  1. have regard to the Commissions’ 2010 family violence inquiry, the National Council’s report and any supporting material in relation to family violence and sexual assault laws;
  2. work closely with the relevant Australian Government departments to ensure the solutions identified are practically achievable and consistent with other reforms and initiatives being considered in relation to the development of a National Plan to Reduce Violence against Women and their Children or the National Framework for Protecting Australia’s Children.

Timeframe for reporting

The Commission will report no later than 30 November 2011.

Dated: 9 July 2010

Robert McClelland

Attorney-General

Review of Censorship and Classification

Having regard to:

  • it being twenty years since the Australian Law Reform Commission (ALRC) was last given a reference relating to Censorship and Classification
  • the rapid pace of technological change in media available to, and consumed by, the Australian community
  • the needs of the community in this evolving technological environment
  • the need to improve classification information available to the community and enhance public understanding of the content that is regulated
  • the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden
  • the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games
  • the size of the industries that generate potentially classifiable content and potential for growth
  • a communications convergence review, and
  • a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia.

Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference. Such referrals will be agreed between the relevant reviewers.

1. In performing its functions in relation to this reference, the Commission will consider:

  1. relevant existing Commonwealth, State and Territory laws and practices
  2. classification schemes in other jurisdictions
  3. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines
  4. any relevant constitutional issues, and
  5. any other related matter.

2. The Commission will identify and consult with relevant stakeholders, including the community and industry, through widespread public consultation. Other stakeholders include the Commonwealth Attorney-General’s Department, the Department of Broadband, Communications and the Digital Economy, the Australian Communications and Media Authority, the Classification Board and Classification Review Board as well as the States and Territories.

3. The Commission is to report by 30 January 2012.