2012–13 has been a productive year for the ALRC, and one in which we have seen the enduring nature of law reform—along with the high regard for the ALRC’s work—evidenced in the substantial implementation activity that has occurred and the continued referral to the ALRC of highly relevant and apposite law reform projects. We have completed our Review into Commonwealth Legal Barriers to Older Persons Participating in the Workforce (the Age Barriers Inquiry) and continued to work on the Copyright in the Digital Economy Inquiry. We have been referred a new Inquiry into Serious Invasions of Privacy in the Digital Era, and the Attorney-General, the Hon Mark Dreyfus QC MP, has foreshadowed publicly that two additional inquiries will be referred to us shortly—into aspects of the Native Title Act 1996 (Cth) and Legal Barriers for People with Disability.
In March we delivered our Report for the Age Barriers Inquiry, Access All Ages—Older Workers and Commonwealth Laws. This Inquiry arose out of concerns about the economic implications of an ageing population and the recognition that expanding the workforce participation of older Australians may go some way to meeting such concerns. The approach to law reform that we took in this Report includes a mix of strategies, directed, for example, at legislation, codes of practice, guidelines, education and training. Although the Report is presented to the Attorney-General, some of its recommendations are directed to other government agencies and bodies, professional associations and institutions for action or consideration. Much energy and activity, nationally and internationally, has been directed towards encouraging mature age people to remain in, or re-enter, paid work. The ALRC’s Report complements this other activity and its 36 focused recommendations, if implemented, will provide a timely, coordinated policy response.
The ALRC was assisted in this Inquiry by the Hon Susan Ryan AO, Age Discrimination Commissioner and, as she ends her role as ALRC part-time Commissioner, I want to acknowledge her contribution to the Inquiry, and thank her for providing guidance and insight throughout the process.
The Copyright Inquiry team, led by Commissioner Jill McKeough, has been busy this year and released its second consultation paper for the Inquiry in June. This Inquiry requires the ALRC to consult widely on controversial areas of copyright law in the digital environment and to suggest strategies for improvement. The ALRC has already received over 300 submissions, with many more expected in the coming months in response to our Discussion Paper. The Report is due to be completed at the end of November. I want to take this opportunity to acknowledge and thank Professor McKeough for her work in leading this complex Inquiry. Professor McKeough’s standing in the field of copyright law and her in-depth knowledge and experience have proven to be invaluable in helping the ALRC traverse this controversial area of law.
As indicated in my opening remark, there has been significant implementation activity this year, the details of which are outlined more fully in the appendices of this Report. It is heartening to see that there has been implementation of our most recent recommendations, as well as some from Reports that were completed up to 10 years ago—highlighting the enduring nature of law reform work and the continuing contribution of the ALRC to the improvement of Australia’s laws and legal processes over time. For example, one of the key recommendations made in our latest Report, Access All Ages—Older Workers and Commonwealth Laws, was taken up only a few months ago in July 2013,by the changes to the Fair Work Act, allowing an extension of the right to request flexible working arrangements to a range of employees, including where an employee is a carer. In addition, a number of the proposals made by the ALRC in the Discussion Paper for this Inquiry, 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, to aligning retirement provisions with the qualifying age for the Age Pension, and in regard to incapacity payment periods and repealing superannuation-offset provisions.
On the other hand, there has also been implementation of recommendations made in a number of ALRC Reports from 1994, 1996 and 2004. In June 2013, the Public Interest Disclosure Act 2013 (Cth) was enacted providing for comprehensive protection of public interest disclosures in the Commonwealth public sector. In Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC Report 98, 2004) and Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems (ALRC Report 82, 1996), the ALRC recommended comprehensive public interest disclosure legislation covering all Australian Government agencies. And in our 2010 Report, Secrecy Laws and Open Government in Australia, we 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.
Some other significant implementation that has occurred this year includes an announcement in April 2013, by the Minister for Home Affairs, the Hon Jason Clare MP, of the first stage of reforms to the National Classification System, which would implement several recommendations we made in our 2012 Report, Classification—Content Regulation and Convergent Media.
In addition, a number of employment-related recommendations made by the ALRC in the 2012 Report, Family Violence and Commonwealth Laws were implemented this year as part of the review of the Fair Work Act, including that the Australian Government support the inclusion of family violence clauses in enterprise agreements, and in provision for an employee who is experiencing family violence to request the employer for a change in working arrangements. In November 2012, changes were also 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 claim of family violence under migration law.
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. In November 2012, the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) was enacted and implemented recommendations made in the ALRC’s 2011 Report, Managing Discovery: Discovery of Documents in Federal Courts, to 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.
These examples demonstrate that although the wheels of law reform may sometimes move slowly, they do move, and the 89% implementation of the ALRC’s recommendations, as recorded in this Annual Report, is testimony to the quality and relevance of our work and the effectiveness of our processes.
‘The quality of the work of the ALRC is a testament to the contribution of our myriad of stakeholders and helps to ensure that our proposals are sensible, achievable, and that they strike the right balance between competing interests and perspectives, to deliver realisable reform to the Australian community.’
Prof Rosalind Croucher, ALRC President
One of the reasons for the high implementation of our recommendations—and something that we see as a hallmark of ALRC processes—is our engagement with the community and the extent to which we are able to elicit from our stakeholders the evidence base on which our work relies. During the past year, we have produced three consultation papers and conducted 97 consultations, including three industry roundtables for the Copyright Inquiry. We have also received over 350 submissions representing a very strong record of community engagement and participation. We have continued to develop our e-communications and have produced 16 inquiry e-newsletters, and eight podcasts.
A new and exciting development in terms of our publication strategy has been making our consultation papers and reports available as e-books (e-pubs) and we have provided seven publications in this format. Four hundred and eighteen e-pubs have been downloaded since the first one was produced in October 2012. Another new development for the ALRC is providing greater access to our Reports through online publishing of community information sheets that summarise the key recommendations made in Inquiry Reports that are of particular relevance to people with disability, Indigenous communities, culturally and linguistically diverse communities and people from the lesbian, gay, bisexual, trans and intersex community.
Mining ALRC website statistics provides some interesting information about the ALRC and its community engagement. In 2012–13, the top five reports accessed by PDF downloads were the Copyright Issues Paper and Discussion Paper, but also included were the 2008 Privacy Report, the Uniform Evidence Report from 2006 and our Customary Laws Report from 1986—another illustration that goes to the enduring nature of law reform and the ongoing interest in the ideas, discussion and research that is contained in these landmark Reports.
In July 2012, we farewelled Justice Susan Kenny who had served as a standing part-time Commissioner for six years. Her contribution over that time to the ALRC’s governance and inquiry work has been remarkable and we are fortunate that Justice Kenny has agreed to continue to serve the ALRC on the Advisory Committee for the duration of the Copyright Inquiry. Justices Nye Perram and John Middleton of the Federal Court have been appointed to the ALRC, joining Justice Berna Collier as standing part-time Commissioners. I welcome them to the ALRC and look forward to drawing on their wisdom, experience and guidance over the coming years.
The ALRC always starts any inquiry with an open mind, full of questions and in search of answers. I would like to take this opportunity formally to acknowledge and thank the many people from government departments and agencies, the legal profession, academia, the non-government sector, industry and from the community—our stakeholders—who have contributed so much to ALRC inquiries, through consultations, through our Advisory Committees and Expert Panels and by taking the time to give us their submissions. The quality of the work of the ALRC is a testament to this contribution and helps to ensure that our proposals are sensible, achievable, and that they strike the right balance between competing interests and perspectives, to deliver realisable reform to the Australian community.
I would also like to record my thanks to all the staff for their ongoing dedication to the work of the ALRC, for their professionalism, thoroughness and hard work. We are extremely lucky to have such a high performing legal research and corporate team.
The ALRC is also able to offer a training opportunity to an excellent group of legal interns who participate in our voluntary legal internship program. This past year we have hosted nine interns from universities around the country alongside another seven international interns, and I thank them for their interest in the work of the ALRC and their enthusiasm for the processes of law reform.
The year ahead looks to be an extremely busy one for the ALRC with two inquiries to be finalised and a further two indicated by the Attorney-General as coming to us in the next few months. The Copyright Inquiry is due to report at the end of November, and the Serious Invasions of Privacy in the Digital Era Inquiry will report in June 2014. It is important to note that the ALRC is only able to work on such inquiries as are referred to us by the Attorney-General and that the time taken by the ALRC to complete its reports is stipulated in the Terms of Reference that are issued at the time an inquiry is given. What the next year holds for the ALRC is, therefore, in the hands of the Government.
I am confident that the ALRC’s time-tested methodology—anchored in community consultation—its independence from government and sectional interests alike, and its high calibre research and analysis, will ensure that we are well and truly up to any task that is set for us. The ALRC’s work will facilitate an informed government response to the challenges of the digital era and will help to ensure that our legal system can respond appropriately and effectively.
Professor Rosalind Croucher