In presenting the 2010–11 Annual Report, I am extremely proud of the work that the ALRC has continued to deliver during a time of significant organisational change. Over the past twelve months, the ALRC has produced six consultation papers and two final reports and has worked on four inquiries, delivering, in anyone’s terms, a significant body of work to inform the government’s decision making and law reform agenda.
This is the last Annual Report delivered by the ALRC as a Commonwealth Authorities and Companies (CAC) body. As of 1 July 2011, the ALRC became a statutory agency under the Financial Management and Accountability Act 1997, and an employer subject to the Public Service Act 1996. This means a whole new governance regime for the ALRC and, although I do not expect the nature of our work to be affected, these new arrangements will have an impact on our administrative and reporting systems. Preparing for this move, particularly to the Public Service, has been a particular focus of our corporate staff for the past months and our seamless transition is a credit to their thoroughness and professionalism.
In November 2010, we launched the Final Report in the Family Violence Inquiry, Family Violence: A National Legal Response (ALRC Report 114) which was a joint inquiry with the NSW Law Reform Commission. It was an honour to have the Attorney-General, the Hon Robert McClelland MP, launch the report at the ALRC with the then NSW Attorney General, the Hon John Hatzistergos. The Report—presented in two volumes with a Summary Report—was the result of a year-long inquiry during which the ALRC conducted 236 consultations nationally and received 240 submissions from a wide range of people and agencies. For this Report, the ALRC considered at least 26 different legal regimes across the federal/state divide with the aim of improving the safety of victims of family violence. Many individuals from across the country shared their personal stories with us and, in doing so, helped us to grasp the very difficult, frustrating and often dangerous situations faced by people who are trying to deal with family violence as they navigate through the legal system. We also heard from judges, magistrates, lawyers, women’s legal services, police, rape crisis centre workers, men’s groups, Indigenous and immigrant communities, child protection workers, and others. We are extremely grateful to everyone who contributed to this Inquiry. The thoroughness of the Report, and its 187 recommendations for reform, is a testament to this community contribution. I also want to extend my thanks to Victorian Magistrate, Anne Goldsbrough, who was appointed a part-time Commissioner for the Family Violence Inquiry. Anne’s expertise in the area of family violence was invaluable throughout the Inquiry.
The Discovery Inquiry’s Final Report, Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115), was completed at the end of March 2011 and tabled in Parliament on 25 May 2011. Advocating a facilitative approach that emphasises the role of the judiciary in robust case management, particularly in large and complex cases, is the key focus of the reforms suggested in the Report, which includes 27 recommendations for improving the practical operation and effectiveness of the process of discovery. The underlying premise for this Inquiry was that the costs of discovery—which can be very high—may inhibit access to justice and result in an undue public cost. The ALRC heard that, in many cases, there are literally hundreds of thousands of documents stored electronically that may be called on during a discovery process and the cost of providing access to all these documents can be extremely high. The challenge for the ALRC was to recognise the important role that discovery can play in facilitating the resolution of disputes, while reviewing its operation in the context of the reality of modern information management in a digital age—the problem of simply ‘too much information’.
The Report makes recommendations about, among other things, the production and inspection of documents prior to discovery; when parties should file discovery plans; best-practice guidelines on the formation and content of discovery plans; judicial and practitioner training; the role of registrars and referees; costs orders; pre-trial oral examinations; and data collection.
We were fortunate to have had two eminent part-time Commissioners appointed to this Inquiry, Justice Bruce Lander and Justice Arthur Emmett, both of the Federal Court. I want to record my sincere thanks to both for their guidance and contribution to this Inquiry. The ALRC is extremely grateful for the pro-bono contribution made by its part-time Commissioners—and to the Federal Court for facilitating their involvement.
I also wanted to acknowledge and thank the members of our Advisory Committee for the Discovery Inquiry, all of whom gave freely of their time, expertise and knowledge to the ALRC during the Inquiry. The value of this voluntary contribution to the ALRC’s processes cannot be underestimated and is a key factor in ensuring the quality, transparency and robustness of our processes and our final recommendations. In particular, I want to take this opportunity to acknowledge the contribution of our two standing part-time Commissioners, Justice Susan Kenny and Justice Berna Collier, for their participation in the Discovery Inquiry and their oversight of the ALRC’s work in general.
At the end of April, just after Easter, we moved into our new home on level 40 of the MLC Centre in Martin Place. We are sub-leasing office space from the Australian Government Solicitor (AGS), which has itself contracted in recent years freeing up some fully fitted-out office space. This move presented a great opportunity for the ALRC, as we were not only able to halve our floor space, and therefore the cost of our rent, but we were also able to take advantage of a fully fitted-out office—and most importantly in the era of sharing services across government, to share a number of resources with the AGS, including reception and meeting rooms as well as their comprehensive hard copy library. In terms of the ALRC’s Michael Kirby Library collection, we have been able to keep the essential core of it intact and to move it into the office with us. However, having access to the AGS library means that we won’t have the ongoing costs of upkeep and having to find ever more shelf space for hard copy books and reports. Accessing online resources, in preference to hard copy ones, also makes much sense in terms of the fluid nature of the ALRC’s work, where we may be delving deep into family violence laws one year, and then classification and media laws the next, but only needing access to these resources during the particular inquiries. What we will do is continue to expand our online resources with increased online subscriptions and fully searchable tools. In this way, the ALRC’s Michael Kirby Library will continue to build and expand in a way appropriate to our needs and resources.
When the announcement of the Review of Censorship and Classification Laws was made in March, I was delighted that the Attorney-General also announced the appointment of Professor Terry Flew as Commissioner to lead this Inquiry. Terry is from the Media and Communication in the Creative Industries Faculty at Queensland University of Technology and joined us on 2 May—in our new home. I am also doubly pleased to say that the Attorney-General’s Department provided the funds to support his appointment for the duration of the Inquiry!
The Classification Inquiry is now in full swing with an Issues Paper released in May and more than 2,400 submissions received, setting a record for submissions to the ALRC for any inquiry. The ALRC is also working on the Commonwealth Laws and Family Violence Inquiry, which I am heading up, and we have been hard at it—producing four Issues Papers in March on the subjects of Immigration Law, Employment and Superannuation, Child Support and Family Assistance and Social Security Law. This was a follow-up inquiry to the Family Violence Inquiry in 2010 and has allowed the ALRC to continue its ground-breaking work in the area of family violence and to contribute to the Government’s substantial law reform agenda in this area following the 2009 Report of the National Council to Reduce Violence against Women and their Children, Time for Action.
In the last year there has also been an Inquiry into the ALRC, conducted by the Senate Legal and Constitutional Affairs References Committee. Chaired by then Opposition Senator, the Hon Guy Barnett, the Committee reported on 8 April and the Government responded on 8 July. It was very heartening to see throughout the Inquiry—in the evidence given and in both the report and the response—strong support for the quality of, and respect for, the ALRC’s work. After a rather unsettling period, this was very reassuring indeed. While there was disagreement in the Committee about the ALRC’s funding issues, which had been a key focus of the Senate’s Inquiry, the majority Senate report recommended a restoration of the ALRC’s budget cuts ‘as a matter of urgency’. The minority Senate report by Government Senators considered that the ALRC was ‘adequately resourced’ and did not accept the recommendation to restore our funding to pre-2009 levels.
Putting that aside, the affirmation of the importance of the ALRC’s work and the respect for the ALRC from government, from our stakeholders and the community, was welcomed and timely. A fuller summary of the Senate Committee’s Inquiry into the ALRC is included in the Special Features section of this Annual Report.
Once again, the ALRC has been honoured in the Institute of Public Administration Australia (IPAA) Annual Report awards, winning another Bronze Award in the online category for a CAC agency for the second year in a row. I have received many compliments on our web ‘team’—which is, in fact, only one person! I am also delighted to report that the ALRC’s Executive Assistant and Project Coordinator, Tina O’Brien, was nominated and was one of four nominees shortlisted for the Expand, Executive Assistant of the Year Award for 2011. Tina does an amazing job here supporting myself, our Commissioners and our inquiry teams, and this recognition is truly deserved. I also wanted to record the sincere thanks and appreciation to two long serving staff who departed the ALRC this year. Senior Legal Officer, Carolyn Adams, left the ALRC after 8 years and Senior Legal Officer, Isabella Cosenza, left after 9 years. Their contribution to the work of the ALRC was of a very high standard and their commitment and professionalism exemplary.
One of the important messages that the ALRC communicated through the Senate Inquiry into the ALRC was the enduring nature of law reform and the fact that law reform does not happen overnight, but can often take months and even years for recommendations to be implemented. The very high level of implementation of the ALRC’s reports is evidence of the relevancy of the ALRC’s recommendations, the effectiveness of the processes that inform them and the development and nurturing of the intellectual capital in law reform over time within this organisation. The value of the ALRC’s research was noted in several submissions to the Senate’s Inquiry into the ALRC, from both academics and from the judiciary, in particular the Federal Court, speaking of the high value provided by the evidence base of the ALRC’s research and the enduring nature of the law reform reports that we produce.
In this context, it has been extremely pleasing to note the implementation of a number of key recommendations in the past months of the ALRC’s ground-breaking report into Privacy laws, For Your Information: Australian Privacy Law and Practice (ALRC Report 108, 2008), including those concerning the Australian Privacy Principles and others looking at issues of the media and privacy. Minister for Home Affairs and Justice, the Hon Brendan O’Connor MP, announced the release of an Issues Paper that will canvass the prospect of introducing a statutory cause of action for serious invasions of privacy—one of the ALRC’s key recommendations. I take this opportunity to acknowledge the work of past Commissioner in charge of the Privacy Inquiry, Professor Les McCrimmon, who welcomed the Government’s announcement from his new home in Darwin, where he is now Acting Pro Vice-Chancellor in Faculty of Law, Education, Business and Arts at Charles Darwin University. When the Report was released, it was always the Government’s intention to look at implementation of our recommendations in two distinct tranches over a number of years, and it is very pleasing to see this commitment being realised. Many of the other recommendations of the Report have been considered already, and we look forward to following the developments in this area over the coming months.
Another example of recent implementation is Schedule 1 of the National Security Legislation Amendment Act 2010 that implements a number of recommendations in the ALRC’s report on Sedition, Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104, 2006). Further examples of implementation are listed in the appendices of this Report and provide testament that independent advice from the ALRC remains critical in helping the government achieve its reform objectives.
I have now overseen, as Commissioner in charge, seven inquiries during the past four years: Client Legal Privilege; FOI (until it was withdrawn); Secrecy; FOI (Private Sector) (that was proposed but never eventuated); Family Violence; Commonwealth laws and family violence; and Discovery. Despite the ALRC’s recent reduction in resources and the challenges that we face, I remain committed to ensuring that the ALRC’s tried and tested research methods, underpinning the quality of our work, are not compromised and that the ALRC continues to deliver extraordinary value to this and future federal governments.
Professor Rosalind Croucher
‘The ALRC is certainly the senior law reform agency in Australia. The work it has produced is of admirable quality. It is routinely looked to by this Commission when it is considering its projects.’Submission by the New Zealand Law Commission to the Senate Legal and Constitutional Affairs References Committee Inquiry into the ALRC.