Image: Family Violence Final Report Launch — ALRC part-time Commissioner, Magistrate Anne Goldsbrough; Attorney-General, the Hon Robert McClelland; ALRC President, Professor Rosalind Croucher; NSWLRC Commissioner, Professor Hilary Astor; NSW Attorney General, John Hatzistergos; NSWLRC Chairman, the Hon James Wood.
The Australian Law Reform Commission (ALRC) supports the Attorney-General and the Government in the maintenance and improvement of Australia’s system of law and justice, by contributing to the process of law reform in Australia. The ALRC’s outcome is:
Informed Government decisions about the development, reform and harmonisation of Australian laws and related processes through research, analysis, reports and community consultation and education.
Under the Australian Law Reform Commission Act 1996 (Cth), the ALRC’s ongoing function is to undertake inquiries on matters referred to it by the Attorney-General and to review Commonwealth laws relevant to those matters for the purpose of systematically developing and reforming the law. In pursuing this function, the ALRC provides the Government with timely reports outlining recommendations for law reform that contribute to the Government’s objective of achieving an equitable and accessible system of federal justice and the harmonisation of Australia’s laws and practices.
The ALRC has one program through which it delivers its outcome.
Program 1: Conducting Inquiries into Aspects of Australian Laws and Related Processes for the Purposes of Law Reform.
The objective of this Program is to produce Reports for each inquiry referred to the ALRC by the Attorney-General, that contain the research, analysis and recommendations to assist the government to make informed decisions about the development, reform and harmonisation of Australian laws and related processes.
In undertaking this program the ALRC will:
- conduct inquiries, as referred by the government;
- undertake community consultation with relevant stakeholders and experts interested in each area of law under review and report on the consultation process;
- produce consultation documents, as appropriate, to each inquiry; cc
- call for submissions at each consultation phase and seek information and responses to the questions and proposals presented that will be considered by the ALRC in formulating its final recommendations;
- provide web-based consultation and communication strategies to effectively and efficiently broaden access by the community to the ALRC’s activities;
- present at public conferences, seminars and parliamentary inquiries, ensuring that the work of the ALRC is publicly debated and discussed and contributes to the community’s knowledge about the government’s law reform agenda.
As required by its Act, in formulating its law reform recommendations, the ALRC has regard to relevant international obligations; the potential impact of its recommendations on the costs of obtaining access to and dispensing justice; and personal rights and liberties, ensuring that citizens are not unduly dependent on administrative rather than judicial decisions.
As part of the inquiry process, the ALRC produces a number of consultation papers that present issues and raise proposals for reform. It calls on the community to respond to these issues and proposals through both formal submissions as well as through more informal feedback mechanisms, such as online discussion forums, phone-ins, focus groups, and seminars and roundtables, where appropriate. These external contributions, and the ALRC’s own research, inform the preparation of a Final Report with recommendations for the Government’s consideration. These Final Reports assist the Government to make informed decisions about reforming the law and related processes.
Table 2: Program Deliverables
‘From its inception until now the ALRC has produced first-class reports that set out the current law on the topic under consideration reliably and in detail. More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented… It is only because the scholarship embodied in the ALRC’s reports has been first class that they have been of assistance to the judiciary.’
Submission by the Federal Court of Australia to the Senate Legal and Constitutional Affairs References Committee Inquiry into the ALRC.
It is usual for the ALRC to work on two inquiries at the one time. In 2010–11, the ALRC worked on four inquiries as referred to it by the Attorney-General:
- the Inquiry into Family Violence Laws;
- the Inquiry into Discovery of Documents in Federal Courts;
- the Inquiry into Commonwealth Laws and Family Violence; and
- the Review of Censorship and Classification.
Inquiry into Family Violence Laws
During this reporting period, the ALRC worked for three months to September 2010 on producing the Final Report for the Family Violence Inquiry—a joint inquiry with the NSW Law Reform Commission (NSWLRC). Family Violence: A National Legal Response (ALRC Report 114, 2010) was launched on 11 November by the Attorney-General, the Hon Robert McClelland and NSW Attorney General John Hatzistergos with ALRC President, Professor Rosalind Croucher, NSWLRC Chairman, the Hon James Wood and NSWLRC Commissioner, Emeritus Professor Hilary Astor.
The Terms of Reference had directed the ALRC and the NSWLRC (the Commissions) to consider: the interaction in practice of state and territory family and domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws; and the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence. In relation to both issues, the Commissions were to consider what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children. The Terms of Reference in full are at Appendix C.
The protection of women and children has predominantly been dealt with under state and territory family and domestic violence laws and child protection laws. These laws have varied across the jurisdictions, with the possible result of women and children being subject to different levels of protection depending upon where they lived. The Commissions explored 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. Also in consideration was how these laws interact with Commonwealth laws touching on family violence, such as the Family Law Act. The Commissions also considered how the law should enable women and children to report family and domestic violence, participate in legal processes, and access appropriate remedies; as well as facilitate the rehabilitation of perpetrators and the prevention of family violence in the first place.
On 14 December 2009, the Attorney-General appointed Victorian Magistrate Anne Goldsbrough to the ALRC as a part-time Commissioner for the Family Violence Inquiry. Magistrate Goldsbrough’s term ended on 31 August 2010. The ALRC invited George Zdenkowski, former ALRC Commissioner, academic and magistrate to assist the Inquiry team as a special adviser. The ALRC also called on the expertise of other key stakeholders including Dr Jane Wangmann and Dr Annie Cossins in the areas of sexual assault and child sexual assault; Stephen Odgers SC, in relation to sexual assault evidence issues; and Professor Patrick Parkinson, in relation to Family Law Act intersections with child protection and family violence.
The Commissions conducted an intensive round of consultations and presentations for this Inquiry, undertaking 110 consultations including in Perth, Mackay, Darwin, Alice Springs, Hobart, Melbourne, Sydney and regional New South Wales.
The Final Report was presented in two volumes with an additional Summary Report. Key recommendations focused on improving safety through:
- A common interpretative framework—establishing a shared understanding of what constitutes family violence across relevant legislative schemes.
- Corresponding jurisdictions—expanding the jurisdiction of courts dealing with family violence to maximise the chance that families will be able to get all the legal protections they need from any court they approach.
- Specialist family violence practice—fostering expertise within magistrates courts with staff who understand the dynamics of family violence and the complex array of legislation that applies.
- Improving police and prosecutorial practice—to produce safe, fair and just outcomes for victims.
- Integrated responses—ensuring that the many services needed by those who suffer family violence work together, building a better and shared understanding of violence and a national system of registration of family violence orders.
- Alternative dispute resolution—developing ADR responses, but with careful and appropriate protections for those who are the victims of violence.
- Training and information—underpinning legal changes by better understandings of family violence across the whole system, including a national family violence bench book and a national register of relevant orders.
In relation to the recommendations made in Family Violence: A National Legal Response generally, the Attorney-General has stated that the Government is currently considering the report.
Inquiry into Discovery Laws
On 11 May 2010, the ALRC received Terms of Reference for an Inquiry to explore options to improve the practical operation and effectiveness of discovery of documents in litigation before federal courts. The Commission was requested to consider how law reform in this area could improve the ability of parties to identify the real issues in dispute and ensure the costs of resolution are proportionate to the issues involved. Terms of Reference in full are at Appendix C.
Two part-time Commissioners were appointed to the Inquiry on 27 October 2010, the Hon Justice Bruce Lander and the Hon Justice Arthur Emmett. Justice Emmett’s and Justice Lander’s terms ended on 30 April 2011.
The ALRC convened an Advisory Committee to contribute to the development of the approach and recommendations. The Advisory Committee met twice during the course of the Inquiry, on 19 August 2010 and on 17 February 2011. A full list of Advisory Committee members is included at Appendix D.
A Consultation Paper, Discovery in Federal Courts (CP 2), was released on 15 November 2010. The Consultation Paper was launched in Melbourne on 17 November 2010, with a public seminar co-hosted by the Civil Justice Research Group, University of Melbourne, focusing on legal ethical issues in the discovery process. The discussion was moderated by Professor Camille Cameron and Associate Professor Christine Parker (Melbourne Law School). A panel of experts discussed the ethics issues canvassed in the Consultation Paper. The panel included:
- Professor Rosalind Croucher (ALRC President)
- The Hon Justice Ray Finkelstein (Federal Court of Australia)
- Georgina Hayden (ASIC)
- Sue Laver (Telstra)
- Bernard Murphy (Maurice Blackburn Pty Limited)
- Stuart Clark (Clayton Utz)
- Michael D. Wyles SC
The Consultation Paper was also launched in Sydney on 18 November 2010, at the Federal Court, with a round-table discussion moderated by ALRC President, Professor Rosalind Croucher and introduced by Chief Justice Patrick Keane of the Federal Court of Australia. Participants at the table included:
- The Hon Justice Peter Jacobson, Federal Court of Australia
- Rebecca Gilsenan, Principal, Maurice Blackburn Lawyers
- Stuart Clark, Partner, Clayton Utz
Over the course of the Inquiry, the ALRC conducted 47 consultations and received 30 submissions. The ALRC consulted with a number of judges, academics, government agencies, members of the legal profession, litigation funders, community legal centres and public interest advocates. Submissions were received from the Family Court of Australia, Australian Government agencies, various legal professional bodies, law firms, academics, community legal centres, public interest organisations, firms specialising in document management, as well as individuals.
The Final Report, Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115), was tabled on 25 May 2011 and contains 27 recommendations to improve the practical operation and effectiveness of the discovery process. It was accompanied by a separate, short Summary Report which provides an accessible overview of the policy framework and recommendations.
The Report’s recommendations are underpinned by eight policy principles, including those comprising the Government’s Strategic Framework for Access to Justice in the Federal Civil Justice System. The focus of the recommendations is principally on the Federal Court. 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.
The ALRC considers that the most effective way to facilitate the resolution of disputes in the Federal Court is through robust case management. Such a ‘facilitative’ model preserves the discretion of the judge while also introducing greater clarity of expectations in relation to discovery. A number of the recommendations are to reform the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules (Cth), and to ensure that these provisions are supported by a suite of practice notes clarifying what the Federal Court expects of practitioners. These recommendations are complemented by recommendations for judicial education and training to reinforce judicial understanding of powers and to encourage their more consistent application.
Inquiry into Commonwealth Laws and Family Violence
The 2010 inquiry into family violence, by the Australian Law Reform Commission and New South Wales Law Reform Commission, 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, acknowledged the importance of examining Commonwealth laws that have an impact upon safety of women and children.
On 9 July 2010, the ALRC received Terms of Reference for a review of the treatment of family/domestic violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law, superannuation law and privacy provisions in relation to those experiencing family/domestic violence and to report on what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family/domestic violence. Terms of Reference in full are at Appendix C.
ALRC President, Professor Rosalind Croucher leads this Inquiry. No part-time Commissioner was appointed for this Inquiry. An Advisory Roundtable was held on 9 December 2010 to assist the ALRC to formulate the initial issues to be canvassed. Members of the Advisory Roundtable are at Appendix D.
In February and March 2011, the ALRC released a series of Issues Papers on its website:
- Family Violence—Employment and Superannuation Law (IP 36) on 23 February 2011;
- Family Violence—Immigration Law (IP 37) on 1 March 2011;
- Family Violence—Child Support and Family Assistance (IP 38) on 10 March 2011; and
- Family Violence—Social Security Law (IP 39) on 14 March 2011.
These Issues Papers posed a number of questions for stakeholders to respond to. Eighty-one submissions were received in response to these Issues Papers from community legal centres, legal aid commissions, employer groups, unions, men’s and women’s groups, academics and tribunals.
Several Expert Panels, based on the legal areas within the reference were formed for this Inquiry and met during May to contribute to the development of a Discussion Paper. Members of the Expert Panels are at Appendix D.
To date 45 consultations have been conducted in the process of this Inquiry. A Discussion Paper will be released in August 2011 with a Final Report at 30 January 2012.
Review of Censorship and Classification Laws
On 21 December 2010, the Attorney-General, the Hon Robert McClelland MP, issued a joint press release with the Minister for Justice; Minister for Home Affairs; Minister for Privacy and Freedom of Information, the Hon Brendan O’Connor MP, stating that the ALRC will conduct a review of classification laws in Australia in light of changes in technology, media convergence and the global availability of media content. The ALRC previously conducted an inquiry into laws relating to classification and censorship in 1991. The National Classification Scheme is a cooperative scheme between the Commonwealth and the States and Territories. The Attorney-General’s Department sought public comment on the proposed terms of reference for the review, prior to formalising them for the ALRC’s inquiry.
On 24 March 2011, the Attorney-General provided the ALRC with Terms of Reference that asked the ALRC to inquire and report on the framework for the classification of media content in Australia, based on the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and Broadcasting Services Act 1992 (Cth). Having regard, among other things, to:
- existing Commonwealth, State and Territory classification laws;
- the current classification categories contained in the Classification Act, National Classification Code and Guidelines;
- the rapid pace of technological change;
- the need to improve classification information available to the community;
- the effect of media on children; and
- the desirability of a strong content and distribution industry in Australia.
The ALRC has been asked to conduct widespread public consultation across the community and industry and to provide its Final Report by 30 January 2012. Terms of Reference in full are at Appendix C.
On 21 April 2011, the Attorney-General announced the appointment of Professor Terry Flew as a full-time Commissioner for the Classification Inquiry from 2 May 2011 until 29 February 2012. Financial assistance to support this appointment was provided to the ALRC by the Attorney-General’s Department.
The ALRC’s Inquiry is occurring alongside other public consultations and reviews covering matters related to the National Classification Scheme, including the Department of Broadband, Communications and the Digital Economy (DBCDE) review of measures to increase accountability and transparency for Refused Classification material and its Convergence Review, examining Australia’s communications and media legislation.
The ALRC released an Issues Paper, National Classification Scheme Review (IP 40), on 20 May 2011 that provided an overview of the current classification system and an assessment of its strengths and weaknesses. It also discussed the important distinctions to be made between censorship and classification, and issues concerning what should be classified and who should do the classifying, in the context of rapid change in the media industries and media consumption patterns in a converging technological environment. Various options for revising the regulatory framework, including direct government regulation, co-regulation with industry, and industry self-regulation were also raised.
In releasing the Issues Paper, the ALRC sought wide community input into reform of the classification system, with the aim of advising on a regulatory framework that:
- is consistent across media industries, platforms, and devices
- meets community expectations and is readily understood by the public
- enables Australians to have ready access to a diverse range of forms of information and entertainment content across media platforms
- ensures that appropriate safeguards exist to restrict the availability of inappropriate content, particularly for children
- minimises the costs and regulatory burdens of compliance, and promotes competition and innovation
- is enforceable and promotes public trust in the regulatory system.
To date, the ALRC has received a record number of submissions to this Inquiry, receiving more than 2,400 submissions. Twenty-four face to face consultations have also been held in Sydney, Canberra, Brisbane and Melbourne. A Discussion Paper will be released in September 2011.
Attendance at and submissions made by the ALRC to other inquiries
The ALRC’s inquiry work will sometimes mean that it has conducted valuable research into areas of law or legal process that are either also under review by other agencies or parliamentary committees, or where the ALRC’s research touches on the area under review in some way. In such instances, where appropriate and relevant, the ALRC will provide briefings or written submissions to parliamentary committees, ministers, government departments, and other bodies. In this way the ALRC can also ensure that the experience and knowledge developed during inquiries is shared for the benefit of the Australian community.
The ALRC is guided by a protocol that outlines when it is appropriate for the ALRC to give a briefing or to make an external submission. The considerations include:
- the consonance of issues raised in the review or inquiry being undertaken by the external body and issues covered in current reference work or past reference work of the ALRC;
- the consonance of issues raised in the review or inquiry being undertaken by the body and the expertise and knowledge of current Commissioners and staff members; and
- the availability of, and impact upon, ALRC resources.
Where appropriate, submissions are made available on the ALRC website.
During the reporting period, the ALRC made eight written submissions drawing on past inquiries. A full list of submissions is provided in Appendix E.
On 25 November 2010, the President, Professor Rosalind Croucher and Senior Legal Officer, Bruce Alston were called to give evidence to the Senate Finance and Public Administration Legislation Committee with reference to the Australian privacy amendment legislation.
On 11 February 2011, the President, Professor Rosalind Croucher gave evidence to the public hearing of the Senate Legal and Constitutional Affairs References Committee concerning the Inquiry into the ALRC. Executive Director, Sabina Wynn and Senior Legal Officer, Bruce Alston attended the hearing with the President.
‘… the ALRC provides an outstanding contribution to Federal law reform in Australia. The ALRC consistently conducts comprehensive inquiries and produces informative, well researched and well written reports.’
Submission by the Law Council of Australia to the Senate Legal and Constitutional Affairs References Committee Inquiry into the ALRC.