Appendix F: Implementation activity 2011–12

The following provides an overview of activity in relation to the implementation of ALRC reports during 2011–12.

Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117, 2012)

On 17 June 2012, the Minister for Immigration and Citizenship Chris Bowen MP and the Minister for the Status of Women, Julie Collins MP, announced changes to Australia’s migration laws to help those experiencing family violence on provisional partner visas. The changes will widen the types of acceptable evidence that can be provided in support of a family violence claim. This will amount to partial implementation of the ALRC’s recommendations that:

• the Migration Regulations 1994 be amended to provide that a person can submit any kind of evidence to support a non-judicially determined claim of family violence; and

• DIAC’s policy be updated to recognise that evidence other than from ‘competent persons’ should be given appropriate weight as is appropriate in the circumstances of the individual.

Implementation is scheduled for 24 November 2012 and, in the interim, the Department of Immigration and Citizenship will update policy guidelines to confirm that any evidence provided by applicants in addition to the required statutory declarations should be considered.

Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115, 2011)

In July 2011, the Federal Court of Australia made new Rules of the Court. The new Rules, particularly Rule 20.15, are consistent with ALRC recommendations concerning the making of discovery plans.

Federal Court practice note CM 6 was released in August 2011 and applies to any proceeding in which the Court has ordered that discovery of documents be given in an electronic format or in accordance with a discovery plan. The practice note CM 6 states that it is to be applied ‘in a manner that best promotes the overarching purpose of the civil practice and procedure provisions of the Court which are to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible’ and that the parties and their lawyers ‘must conduct the proceeding in a way consistent with the overarching purpose, in particular, by identifying documents relevant to the dispute as early as possible and dealing with those documents in the most efficient way practicable’—consistent with ALRC recommendations.

Two other recommendations in Managing Discovery are in the process of being implemented. The Explanatory Memoranda for the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 states that the Bill implements ALRC recommendations for amendments to the Federal Court of Australia Act 1976 to clarify or extend the Court’s power to make costs orders in relation to discovery, and to provide expressly that the Court or a judge may order pre-trial oral examination about discovery.

Family Violence: A National Legal Response (ALRC Report 114, 2010)

On 24 November 2011, the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was enacted. The Explanatory Memorandum states that the Act aims to improve protections for children and families at risk of family violence and abuse. The Act introduced a range of amendments to the Family Law Act 1975.

Two amendments respond to recommendations made by the ALRC and the NSW Law Reform Commission in their joint report. In particular, the Act introduced a new and broader definition of ‘family violence’ substantially consistent with the definition recommended by the Commissions. The Act partially implemented a further recommendation in amending s 60CC(3)(k) so that courts must, when determining parenting matters, consider ‘relevant inferences that may be drawn’ from family violence orders—not limited to final or contested orders. Previously, this section provided that courts must consider relevant final or contested family violence orders.

These amendments to the Family Law Act came into effect on 7 June 2012.

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

On 23 May 2012, the Attorney-General introduced the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 into Parliament. The Bill would amend the Privacy Act 1988 to implement the Government’s first stage response to the report For Your Information.

Given the large number of recommendations, the Government announced that it would respond to the ALRC report in two stages. The Government’s first stage response addressed 197 of the ALRC’s 295 recommendations. The Bill would implement the major legislative elements of the Government’s first stage response.

The Explanatory Memorandum confirms that the Bill would amend the Privacy Act to:

• create the Australian Privacy Principles (APPs), a single set of privacy principles applying to both Commonwealth agencies and private sector organisations (referred to as APP entities), which replace the Information Privacy Principles (IPPs) for the public sector and the National Privacy Principles (NPPs) for the private sector;

• introduce more comprehensive credit reporting with improved privacy protections, at the same time rewriting the credit reporting provisions to achieve greater logical consistency, simplicity and clarity and updating the provisions to more effectively address the significant developments in the operation of the credit reporting system since the provisions were first enacted in 1990;

• introduce new provisions on privacy codes and the credit reporting code, including powers for the Commissioner to develop and register codes in the public interest that are binding on specified agencies and organisations; and

• clarify the functions and powers of the Commissioner and improve the Commissioner’s ability to resolve complaints, recognise and encourage the use of external dispute resolution services, conduct investigations and promote compliance with privacy obligations.

The Bill introduces modifications to the Act as recommended by the ALRC. The APPs set out standards, rights and obligations in relation to the handling and maintenance of personal information by APP entities, including dealing with privacy policies and the collection, storage, use, disclosure, quality and security of personal information, and access and correction rights of individuals in relation to their personal information.

As recommended by the ALRC, the APPs and credit reporting provisions are structured to more accurately reflect the ‘life cycle’ of personal information. The Bill introduces a number of additional safeguards for the protection of privacy, including enhanced notification, quality, correction, and dispute resolution mechanisms for individuals.

The ALRC understands that the remaining parts of the Government’s first stage response (relating mainly to health services and research provisions) and the ALRC recommendations that it is yet to respond to will be considered in due course after the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 has been progressed.

Uniform Evidence Law (ALRC Report 102, 2006)

In August 2011, the Northern Territory became the most recent Australian jurisdiction to adopt the uniform Evidence Act. When the Evidence (National Uniform Legislation) Act 2011 (NT) comes into force, the evidence law of the Northern Territory will substantially mirror the evidence law which applies in the federal courts, and the state and territory courts of the Australian Capital Territory, New South Wales, Victoria, Tasmania and Norfolk Island.

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

On 23 November 2011, the Federal Government tabled its response to Genes and Ingenuity. As well as addressing recommendations in the ALRC report, the Government also responded to the recommendations of the 2010 Senate Community Affairs Committee’s report on Gene Patents and the 2011 Advisory Council on Intellectual Property’s report on Patentable Subject Matter. The response accepted the majority of the recommendations in all three reports, including the ALRC recommendation to introduce a statutory research exemption into the Patents Act 1990.

The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 passed into law on 15 April 2012. The Act implements key recommendations of Genes and Ingenuity by amending the Patents Act:

• to change the definition of ‘useful’ so as to require that a patent specification discloses a ‘specific, substantial and credible’ use for the claimed invention;

• to introduce a statutory exemption from patent infringement for research and experimental activities; and

• to require that the balance of probabilities standard apply to all statutory requirements for patentability that are relevant at the stage of examination.

Generally, the Act addresses concerns that the thresholds set for the grant of patents in Australia—including gene patents—were too low, suppressed competition and discouraged follow-on innovation, and particular concerns that patents are granted for inventions that are not sufficiently inventive.