20.10.2014
It is with great pleasure that I present the ALRC’s Annual Report for 2013–14, my fifth as ALRC President. The ALRC has continued to be a highly productive and responsive law reform agency, working on five inquiries in areas of key concern to the community at this time: Copyright, Disability, Native Title, Privacy and Traditional Rights, Freedoms and Privileges, or what we have called the ‘Freedoms Inquiry’. The importance of an independent law reform agency that can investigate an area of law free from political expectation or the values of particular interests, that is able to start a process with questions not answers, and that draws on the wealth and diversity of experience and knowledge in the community to help inform the reform process, cannot be overestimated. While law reform happens in many government departments, in other agencies and in the courts themselves, it is in the specialist law reform expertise of the ALRC and its ability to provide high level legal policy advice at arm’s length from government, that our value truly lies.
The types of law reform reviews that the ALRC is uniquely experienced to undertake include those where there are complex legal issues involved and a need to be—and to be seen to be—completely independent from government, industry and special interests. These reviews involve a need to consult widely with diverse and often opposing stakeholders, and to consider their opinions and interests carefully, so that the Government is provided with independent and frank advice. The subject matter of our current inquiries provides excellent examples of this. Looking at how to enhance the equality of people with disability in Commonwealth laws while the NDIS is being implemented, considering whether the promise of Native Title has been realised 20 years after the landmark Mabo High Court decision, or addressing serious invasions of privacy in the age of the internet are all highly complex and challenging areas of great concern to the community, that require careful and in-depth consideration. Through its widespread and thorough consultation strategies, the ALRC is able to build consensus and understanding of its proposals within the community and this assists the government in turn to implement various recommendations, even in a context where change may be challenging.
The community’s faith and trust in the independence of the legal system is bolstered by this independence and it is this, together with the high regard in which the ALRC’s work is held, that has meant we have again been able to leverage relationships with key stakeholders who have continued to contribute to our various inquiries in a most generous manner. I would like to take this opportunity formally to acknowledge and thank the many people from the legal profession, academia, industry, the non-government sector, government departments and agencies and from the community—our stakeholders—for their contribution to our 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 and achievable, and that they strike the right balance between competing interests and perspectives to deliver realisable reform to the Australian community.
At the end of November we delivered our Report for the Copyright Inquiry, Copyright and the Digital Economy (ALRC Report 122, 2014). This inquiry was one in which our stakeholders were extremely divided, and I want to thank Professor Jill McKeough, Commissioner in charge of the Inquiry, for her dedication to this task and congratulate her on this highly complex, comprehensive and rigorous Report. Reforming copyright law posed a number of important challenges. While the law must be relevant to a complex and changing digital environment, it must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should also be flexible and not inhibit innovation. Reforms must also not lose sight of the fundamental objectives of copyright law—to stimulate creation and learning by increasing the incentives to create and distribute copyright material. In recommending the introduction of fair use, the ALRC presented a more flexible and adaptive copyright framework. The introduction of fair use would mean Australian copyright law could be applied to new technologies and new commercial and consumer practices, without constant recourse to legislative change. Fair use would promote innovation and enable a market-based response to the demands of the digital age while also enhancing access to cultural material, without undermining incentives to create. The ALRC undertook widespread consultation in this inquiry, conducting 109 face to face consultations and receiving 1,009 public submissions. The Report is under consideration by the Government, having been tabled in Parliament in February 2014. In the mean time, the analysis in the Report and the widespread stakeholder engagement that preceded it will contribute to the reform process in a broad sense.
Usually the ALRC’s resources allow us to work on two concurrent inquiries, but in July 2013, the then Attorney-General, the Hon Mark Dreyfus QC MP, provided the ALRC with additional resources so we could undertake two new inquiries and employ both a Commissioner and legal staff on a non-ongoing basis. The ALRC was able to undertake the Inquiry into Serious Invasions of Privacy in the Digital Era, led by Commissioner Professor Barbara McDonald, and to complete this Inquiry within a 10 month timeframe, handing the Report to the Attorney-General at the end of June 2014. The Terms of Reference for this Inquiry asked the ALRC to consider the detailed legal design of a statutory cause of action and, in addition, other innovative ways the law might prevent or redress serious invasions of privacy. Privacy is fundamental to enabling individuals to live dignified, fulfilling, safe and autonomous lives. It underpins many other freedoms of the individual, but it is a right that must be balanced with other fundamental values such as freedom of expression and with other aspects of modern society from which we all benefit. The design of a new cause of action reflects the balancing of these competing interests in carving out a level of protection of privacy that would see Australia meet its commitment to international norms and standards. New technologies are again a contributing factor here to both the complexity of, and necessity for, law reform as new ways to collect and use information about people’s activities, and to intrude into someone’s private life, constantly develop and challenge the usefulness of some existing laws. The ALRC recommendations reflect the need to provide people across Australia with the same level of protection for their privacy and competing freedoms. I take this opportunity to thank Professor McDonald for her work in leading this interesting Inquiry.
The additional resources also supported a national round of consultations for the Native Title Inquiry. The team, led by Professor Lee Godden as Commissioner in charge of the Inquiry, conducted over 100 face to face consultations around the country in the lead-up to and post the release of the Issues Paper. Speaking to Indigenous communities, aboriginal land councils, mining companies, agriculturalists, fisheries, local councils, judges and lawyers who work in the native title area, has made an invaluable contribution to our thinking, and again we are extremely grateful for the time that stakeholders have given us in this process.
This year I have been heading up the Inquiry into Capacity, Equality and Disability in Commonwealth Laws, due to report in August 2014. In this Inquiry we are looking at reforms to Commonwealth laws and legal frameworks to ensure that persons with disability are accorded equal recognition before the law—in particular, in relation to the right to make decisions that affect their lives, and to have those decisions respected. The reforms would encourage supported decision-making—where persons with disability are assisted to make their own decisions—instead of having other people make decisions for them. In this regard, the Inquiry is an internationally groundbreaking examination of the implications of the UN Convention on the Rights of Persons with Disabilities for laws and legal frameworks that may disempower people with disability.
In my last Annual Report, I wrote in detail about important implementation of our recommendations that had occurred during the period. This year has seen further implementation including a first tranche of reforms to the National Classification Scheme that implements several recommendations in the ALRC’s Report Classification—Content Regulation and Convergent Media (ALRC Report 118, 2012). This year also saw another set of privacy reforms included in the Privacy Amendment (Privacy Alerts) Bill 2014 (Cth) that would implement ALRC recommendations concerning data breach notification contained in For Your Information: Australian Privacy Law and Practice (ALRC Report 108, 2008).
During the year there were a significant number of citations of ALRC reports in a variety of cases, including four cases in the High Court. Citations illustrate how, as well as assisting in the interpretation of legislative provisions that have resulted from ALRC reports, our reports are quite often used as authority for basic legal and policy propositions—that is, they provide judges with a useful starting point, which they recognise as having a respectable evidence base. Reports such as Uniform Evidence Law (ALRC Report 102, 2006), Managing Justice: A Review of the Federal Civil Justice System (ALRC Report 89, 2000), Confiscation That Counts: A Review of the Proceeds of Crime Act 1987 (ALRC Report 87, 1999), Collective Investments: Other People’s Money (ALRC Report 65, 1993), General Insolvency Inquiry (ALRC Report 45, 1988), Insurance Contracts (ALRC Report 20, 1982) and the Recognition of Aboriginal Customary Laws (ALRC Report 31, 1986) are still providing such an evidence base.
‘The Court benefits greatly from the ALRC’s reports, research and analysis of complex areas of law within federal jurisdiction… 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.’
Federal Court of Australia, submission to the Senate Inquiry into the ALRC in 2011
I liken the ALRC to a group of elite athletes working in a highly efficient team, able to respond flexibly to Government’s requests, to operate within its resources and to deliver high quality advice. Over its history, the ALRC has developed an internationally recognised best practice methodology for law reform. The maintenance of this intellectual capital in law reform generates an enormous efficiency, where the ALRC is expert at the process of law reform, and, with its reputation and the standing of its Commissioners, is able to leverage enormous outside expertise and contributions—all honorary/pro bono—that inform the ALRC’s work. During the past year, the ALRC has surpassed all its performance indicators, a testament to the highly productive and hardworking ALRC team. We have continued to develop our e-communications with inquiry e-newsletters, a number of podcasts and through Twitter. Our consultation papers and reports are also now freely available as ebooks.
Another new development for the ALRC is providing greater access to our inquiry process and this year we produced a range of materials in 21 community languages, including Auslan, explaining the law reform process and how people can make submissions. We also produced two consultation papers in Easy English for the Disability Inquiry.
In July 2013, we farewelled Justice Berna Collier who served as a standing part-time Commissioner for six years. Her contribution over that time to the ALRC’s governance through her chairing of the Audit Committee and the contribution she made to several inquiries is greatly appreciated. Justice Nye Perram has taken over the Chair of the Audit Committee and currently contributes to the Inquiry into Native Title, and Justice John Middleton’s involvement in the Privacy Inquiry has been of great assistance. I thank them both for their continuing service.
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 fortunate to be able to work with an excellent group of legal interns who participate in our voluntary legal internship program.
In the year ahead the ALRC will expect to produce two reports, one for the Disability Inquiry in August 2014, and one for the Native Title Inquiry in March 2015. We will also produce an interim report—an Issues Paper—for the Freedoms Inquiry by December 2014, with the Report due in December 2015. 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 issued at the time an inquiry is given. What the next year holds for the ALRC is, therefore, in the hands of the Government. From 1 July the ALRC will be subject to a new Act, the Public Governance, Performance and Accountability Act 2013, and the corporate team will be tasked to ensure that our policies and processes are reviewed and updated to reflect the high level of governance and accountability required under this new regime.
Finally, it is crucial that federal laws are updated to reflect changes in Australian society and in community expectations. Many of the ALRC’s inquiries are about ensuring our laws are able to both respond to current challenges and are flexible enough to cope with the future. Laws do change gradually through case law, but often the community demands that the law moves more quickly, and more assuredly, to accommodate changes in the environment, particularly in the digital era. A dedicated expert agency, such as the ALRC, that assists the Government to keep the laws relevant, accessible and fair is needed now, more than ever before. Undertaking the in-depth research and analysis, and finding possible legal solutions is the value-add that the ALRC provides to government decision-making. In this way, the ALRC contributes to the Government’s agenda for a fair and accessible system of Commonwealth law. I have every confidence that the ALRC is up to the task.
Professor Rosalind Croucher