The following provides an overview of activity in relation to the implementation of ALRC reports during 2012–13.
Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120, 2013)
In July 2013, a number of changes to the Fair Work Act 2009 (Cth) took effect. These changes included an extension of the right to request flexible working arrangements to a range of employees, including where an employee is a carer, implementing a recommendation of the Access All Ages report.
A number of the proposals made by the ALRC in the Discussion Paper, and recommendations made in the Report, are consistent with those later made by two other Australian Government reviews in 2013—the Safety, Rehabilitation and Compensation Act 1988 (Cth) Review Report (February 2013) and the Review of the Seacare Scheme Report (March 2013). Broadly, these reviews supported ALRC recommendations with regard to:
consistency across Commonwealth workers’ compensation legislation and, in particular, the need to address inconsistencies in the Seafarers Rehabilitation and Compensation Act 1992 (Cth) compared to the other two key pieces of Commonwealth workers’ compensation legislation;
amending Commonwealth workers’ compensation legislation to align retirement provisions with the qualifying age for the Age Pension;
extending the incapacity payment period under Commonwealth workers’ compensation legislation; and
repealing superannuation-offset provisions.
Classification—Content Regulation and Convergent Media (ALRC Report 118, 2012)
In April 2013, the Minister for Home Affairs announced the first stage of reforms to the National Classification System, which would implement several recommendations of the Classification Report. State and Territory Ministers have agreed to:
broaden the type of content that is exempt from classification laws;
enable the use of automated classification decision-making systems;
change the rules so that 2D and 3D versions of films or computer games no longer need to be classified twice;
change the rules to allow minor modifications to be made to computer games without further classification;
a program of research to examine current classification categories, symbols and community standards; and
give explicit power to Commonwealth officials so that they can notify law enforcement authorities of content that is potentially Refused Classification prior to classification by the Classification Board.
Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117, 2012)
In 2012–13, a number of employment-related recommendations made by the ALRC in the Family Violence and Commonwealth Laws Report were implemented, or partially implemented, including recommendations that:
the Department of Education, Employment and Workplace Relations collect data on the incidence of family violence-related clauses and references in enterprise agreements and include it as part of the Workplace Agreements Database;
the Australian Government support research, monitoring and evaluation of family violence-related developments in the employment law sphere, for example by bodies such as the Australian Domestic and Family Violence Clearinghouse;
the Australian Government consider family violence-related amendments to the Fair Work Act 2009 (Cth) in the course of the 2012 Post-Implementation Review of the Act;
the Australian Government support the inclusion of family violence clauses in enterprise agreements;
the Australian Human Rights Commission, in the context of the consolidation of Commonwealth anti-discrimination laws, examine the possible basis upon which status as an actual or perceived victim of family violence could be included as a protected attribute under Commonwealth anti-discrimination law; and
the Australian Government amend the Fair Work Act 2009 (Cth) to provide that an employee who is experiencing family violence may request the employer for a change in working arrangements.
In the social security context, the ALRC’s recommendation that the Guide to Social Security Law should direct Centrelink customer service advisers expressly to consider family violence when tailoring a job seeker’s Employment Pathway Plan has also been implemented.
Finally, in November 2012, changes were made to the Migration Regulations 1994 (Cth) implementing the ALRC’s recommendations to broaden the types of acceptable evidence that can be submitted in support of a claim of family violence under migration law. The changes included:
repeal the requirements for a valid statutory declaration from a ‘competent person’; and
amendments providing a wider list of people, listed in a ministerial instrument, who can provide evidence in support of a non-judicially determined claim of family violence.
The Department of Immigration and Citizenship’s policy manual for decision makers has also been amended in accordance with ALRC recommendations concerning the impact of family violence.
Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115, 2011)
In November 2012, the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) was enacted. The Act implemented ALRC recommendations for amendments to the Federal Court of Australia Act 1976 (Cth) 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.
Most importantly, the Federal Court of Australia Act was amended to provide expressly that the Court or a judge may order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery; order the party requesting discovery to give security for the payment of the cost of discovery; or make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.
Family Violence: A National Legal Response (ALRC Report 114, 2010)
The national response to the Family Violence Report was agreed to by the Standing Council on Law and Justice in April 2013. The national response dealt with the 24 recommendations that relate jointly to the Commonwealth, states and territories.
The Commonwealth response to the Report was tabled in Parliament in June 2013 and deals with those aspects of the Report that relate to the Commonwealth family law system. Of the 56 recommendations in the Report that relate to Commonwealth responsibilities, many have, since the Report’s release, been acted on by the Australian Government to improve the capacity of the federal family law system to respond to family violence— notably 2012 reforms to the Family Law Act 1975 (Cth).
Another nine recommendations are being addressed through a National Justice CEOs project which is looking at collaboration between the family law and child protection systems. States and territories have committed, through the first three-year action plan of the National Plan to Reduce Violence against Women and their Children, to respond separately to the remaining 97 recommendations that relate specifically to them.
For Your Information: Australian Privacy Law and Practice (ALRC Report 108, 2008)
In September 2012, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) was enacted, implementing many recommendations made in the ALRC’s 2008 Privacy Report. The Privacy Act 1988 (Cth) was amended to:
create the Australian Privacy Principles, a single set of privacy principles applying to both Commonwealth agencies and private sector organisations, replacing the Information Privacy Principles for the public sector and the National Privacy Principles 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.
In addition, the Privacy Amendment (Privacy Alerts) Bill 2013 (Cth), introduced into Parliament in May 2013, would implement ALRC recommendations concerning data breach notification. The Bill would amend the Privacy Act to establish a framework for the mandatory notification by regulated entities of serious data breaches to the Australian Information Commissioner and to affected individuals.
Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC Report 95, 2003)
In October 2012, the Regulatory Powers (Standard Provisions) Bill 2012 (Cth) was introduced into Parliament.
In the Report Principled Regulation: Federal Civil and Administrative Penalties in Australia, the ALRC made a range of recommendations to introduce a greater degree of consistency in relation to penalties across the various Commonwealth regulatory schemes.
A key recommendation was that ‘A Regulatory Contraventions Statute of general application should be enacted to cover various aspects of the law and procedure governing non-criminal contraventions of federal law’.
The Regulatory Powers (Standard Provisions) Bill 2012 has the similar aim of providing more consistency across Commonwealth law in respect to civil and administrative penalties—and other matters not dealt with in Principled Regulation, including the monitoring and investigation powers of regulatory agencies. Rather than provide default provisions, however, the Bill would only apply to regulatory schemes that trigger its provisions through amendment of existing legislation or the introduction of new legislation.
Many of the provisions of the Bill are entirely consistent with the ALRC’s recommendations and appear to have been influenced by them, and by the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, which cites the ALRC’s recommendations.
Public Interest Disclosure Act 2013 (Cth)
In June 2013, the Public Interest Disclosure Act 2013 (Cth) was enacted. The Act implemented the 2010 Government Response to the 2009 House of Representatives Standing Committee on Legal and Constitutional Affairs Report, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector. The Act provides for comprehensive protection of public interest disclosures in the Commonwealth public sector.
In past reports, the ALRC has recommended comprehensive public interest disclosure legislation covering all Australian Government agencies: see Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC Report 98, 2004); Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems (ALRC Report 82, 1996).
Most recently, in Secrecy Laws and Open Government in Australia (ALRC Report 112, 2010), the ALRC observed that a regime enabling robust public interest disclosure—or whistleblower protection—is an essential element in an effective system of open government and a necessary complement to secrecy laws. In that Report, the ALRC recommended that ss 70 and 79(3) of the Crimes Act 1914 (Cth) be repealed and replaced by newly designed secrecy offences in the Criminal Code (Cth). The ALRC recommended that public interest disclosure legislation should protect those who would otherwise be subject to these offences.