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, for each inquiry, a Report, that contains the evidence base—including in-depth research and analysis of relevant laws, legal frameworks and processes, and community consultation and feedback—and recommendations that will assist the Government to make informed decisions about the development, reform and harmonisation of Australian laws and related processes.

In undertaking this program during 2013–14, the ALRC has:

• produced a Report for the Copyright Inquiry and for the Privacy Inquiry (not tabled in this reporting period);

• worked on three inquiries referred by the then Attorney-General, the Hon Mark Dreyfus QC MP, and one inquiry referred by the current Attorney-General, Senator the Hon George Brandis QC;

• conducted consultations with relevant stakeholders and experts interested in each area of law under review and reported on the consultation process;

• produced consultation papers for each inquiry;

• called for submissions in response to consultation papers, seeking information and responses to the questions and proposals, to inform final recommendations;

• provided online consultation and communication strategies to increase public awareness and engagement in ALRC activities; and

• presented at 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.

Table 2: Program 1—Deliverables

Inquiries

During 2013–14, the ALRC worked on five inquiries.

Inquiry into copyright and the digital economy

On 29 June 2012, the ALRC received Terms of Reference for an Inquiry into copyright and the digital economy. The ALRC was to consider whether exceptions and statutory licences in the Copyright Act 1968 were adequate and appropriate in the digital environment and whether further exceptions should be recommended. The Terms of Reference are at Appendix C.

On 8 February 2012, the then Attorney-General, Nicola Roxon MP, appointed Professor Jill McKeough as Commissioner in charge of the Inquiry. An Advisory Committee was constituted and met twice outside the reporting period on 19 July 2012 and on 11 April 2013 and once during the reporting period on 26 September 2013.

The Advisory Committee for this Inquiry drew on a wide range of legal, industry and cultural experts. The ALRC was able to call upon the expertise and experience of its standing part-time Commissioners, both judges of the Federal Court of Australia: the Hon Justice John Middleton and the Hon Justice Nye Perram, who was President of the Copyright Tribunal of Australia at the time of the Inquiry. The Advisory Committee also included the Hon Justice Susan Kenny and the Hon Justice David Yates, both highly experienced intellectual property judges. The Advisory Committee benefited from a number of senior legal practitioners representing copyright owners and large copyright interests, a former member of the Copyright Tribunal of Australia, two regulatory economists and the Chief Executive of the peak body of copyright owners. The full membership of the Advisory Committee is listed at Appendix D.

The ALRC released an Issues Paper on 20 August 2012 and a Discussion Paper on 5 June 2013. The ALRC reported on 30 November 2013 and the Report was tabled in Parliament on 13 February 2014.

The Report recommends the introduction of fair use in Australia. Fair use is a defence to copyright infringement that essentially asks of any particular use: Is this fair? Fair use is found in a number of countries, notably the United States, and it builds on existing Australian laws that allow the fair use of copyright material for purposes such as research, study and reporting the news. The Report also recommends some specific exceptions, such as for libraries and archives to make preservation copies, for judicial proceedings and Royal Commissions, and for public access to certain documents lodged with government. There are also reforms to encourage the use of ‘orphan works’—a wealth of copyright material that cannot be used because rights holders cannot be found.

The 30 recommendations in the Report are designed to allow for a more principles-based and less prescriptive approach to copyright law. In a highly contested field, the ALRC has suggested reforms that will protect creators and their markets, provide appropriate access to material, simplify and modernise the law, and create a better environment for innovation and economic development.

During the Inquiry, the ALRC conducted 109 consultations in Sydney, Melbourne and Canberra including three stakeholder roundtables:

• Culture (Galleries, Libraries, Archives and Museums) sector on 12 April 2013;
• Content Owners roundtable on 19 April 2013; and
• Creators roundtable on 2 May 2013.

In total, the ALRC received 870 public and 139 confidential submissions to the Inquiry. Internet communication tools—including e-newsletters and online forums—were used to provide information and obtain further comment. The ALRC also made use of Facebook and Twitter to provide information and as additional avenues for community engagement.

‘The ALRC inquiry was the most significant review of the Copyright Act since the Act came into operation in 1968 and has attracted strong interest with the inquiry receiving over 850 submissions. The Government acknowledges the contribution of those who participated in the inquiry consultation rounds and thanks them for the considerable amount of work involved in preparing submissions.’

Senator the Hon George Brandis QC, Attorney-General of Australia

The ALRC believes that the overall effect of the recommendations in the Report will be a more flexible and adaptive copyright framework. The introduction of fair use will mean Australian copyright law can be applied to new technologies and new commercial and consumer practices without constant recourse to legislative change. Fair use will promote innovation and enable a market-based response to the demands of the digital age. The reforms will enhance access to cultural material, without undermining incentives to create. The recommended exceptions are also more consistent with public standards of fairness. The ALRC stressed that exceptions to copyright, whether in the form of a specific rule or a general standard, should only permit the unlicensed use of copyright material where this would be fair. Generally, they permit the unlicensed use of copyright material if this would:

• serve an important public purpose;
• stimulate the creation of new works and the use of existing works for new purposes; and
• not harm rights holders’ markets—ensuring exceptions do not undermine the crucial incentive to create and publish copyright material.

The Report is currently under consideration by the Government.

Inquiry into serious invasions of privacy in the digital era.

On 12 June 2013, the then Attorney-General, Mark Dreyfus QC MP, referred to the ALRC an Inquiry into the protection of privacy in the digital era. The Terms of Reference for this Inquiry asked the ALRC to review the issue of the prevention of, and remedies for, serious invasions of privacy in the digital era, having regard to a number of factors including: the extent and application of existing privacy statutes; the rapid growth in capabilities and use of information, surveillance and communication technologies; community perceptions of privacy; and relevant international standards and the desirability of consistency in laws affecting national and transnational data flows. The Terms of Reference for this Inquiry are at Appendix C.

The Terms of Reference required the ALRC to design a tort to deal with serious invasions of privacy in the digital era. In its Report, the ALRC provides the detailed legal design of such a tort located in a new Commonwealth Act and makes 16 other recommendations that would strengthen people’s privacy in the digital environment. The ALRC has designed a remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest. The recommendations in the Report recognise that while privacy is a fundamental right that is worthy of legal protection, this right must also be balanced with other rights, such as the right to freedom of expression and the freedom of the media to investigate and report on matters of public importance. The recommendations, taken together, would better protect people’s privacy in the digital environment, while protecting and fostering freedom of speech and other public interests.

The Report also recommends that a new Commonwealth surveillance law be enacted to replace existing state and territory laws, to ensure consistency of surveillance laws throughout Australia, and a number of other reforms to supplement the statutory cause of action.

During the course of the Inquiry, the ALRC produced two consultation papers, received 134 submissions and undertook 69 face to face consultations with media, telecommunications, social media and marketing companies, many expert academics, specialist legal practitioners and judges, public interest groups and government agencies. Two legal roundtables in Sydney and London were also conducted. The ALRC published an Issues Paper on 8 October 2013 and a Discussion Paper on 31 March 2014. The ALRC provided its Report to the Attorney-General on 30 June 2014. The report will be tabled in the next reporting period.

Inquiry into equal recognition before the law and legal capacity for people with disability

On 23 July 2013, the then Attorney-General, Mark Dreyfus QC MP, referred to the ALRC an Inquiry into equal recognition before the law and legal capacity for people with disability. The ALRC was asked to review Commonwealth laws and legal frameworks that may deny or diminish the equal recognition of people with disability as persons before the law, including how these laws affect their ability to exercise legal capacity, and what, if any, changes could be made to address this inequality. The purpose of this Inquiry is to ensure that Australian laws and legal frameworks are responsive to the needs of people with disability and advance, promote and respect their rights. The Terms of Reference for this Inquiry are at Appendix C.

Disability Discrimination Commissioner, Graeme Innes AM, was appointed as a part-time Commissioner to the ALRC to support the Inquiry which is being led by ALRC President, Professor Rosalind Croucher. An Advisory Committee was established and has met twice during the reporting period to provide guidance and valuable feedback to the ALRC on its proposals for reform.

During the reporting period, the ALRC released an Issues Paper on 15 November 2013 and a Discussion Paper on 22 May 2014. The ALRC conducted 90 consultations and received 118 submissions.

In order to better consult with people with disability the ALRC produced both its consultation papers in an Easy English version. Website statistics show that there have been 299 discreet downloads of these documents over the course of this Inquiry. The ALRC produced seven e-newsletters for the Inquiry and produced two podcasts summarising the key concepts in the Issues Paper and Discussion Paper.

The ALRC is due to provide its Report to the Attorney-General at the end of August 2014.

Inquiry into the Native Title Act 1993

On 3 August 2013, the then Attorney-General, Mark Dreyfus QC MP, and the then Minister for Families, Community Services and Indigenous Affairs, Jenny Macklin MP, announced Terms of Reference for an Inquiry into specific areas of native title law, following the release in June of draft terms of reference for public consultation. The ALRC was asked to review the connection requirements relating to the recognition and scope of native title rights and interests and any barriers to access to justice for claimants, potential claimants and respondents imposed by the Native Title Act’s authorisation and joinder provisions. The Terms of Reference direct the ALRC to consider the Act and any other relevant legislation, including how laws and legal frameworks operate in practice; any relevant case law; relevant reports, reviews and inquiries regarding the native title system and the practical implementation of recommendations and findings; the interests of key stakeholders; and any other relevant matter concerning the operation of the native title system. The Terms of Reference for this Inquiry are at Appendix C.

Professor Lee Godden was appointed as a Commissioner to lead this Inquiry. An Advisory Committee was established and met once during the reporting period. The ALRC has consulted widely undertaking 110 consultations around the country including in Perth, Broome, Darwin, Cairns, Coffs Harbour, Brisbane, Canberra, Adelaide, Melbourne and Sydney and has received 36 submissions to the Issues Paper, which was released on 20 March 2014. The ALRC is to provide its Report by March 2015.

Inquiry into Commonwealth laws for consistency with traditional rights, freedoms and privileges

On 9 May 2014, the Attorney-General, Senator the Hon George Brandis QC, provided final Terms of Reference to the ALRC for a Review of Commonwealth laws for consistency with traditional rights, freedoms and privileges. The ALRC has been asked to identify any Commonwealth laws that encroach upon traditional rights, freedoms and privileges and to consider how laws are drafted, implemented and operate in practice; and any safeguards provided in the laws, such as rights of review or other scrutiny mechanisms. The Terms of Reference direct the ALRC to focus particularly on commercial and corporate regulation; environmental regulation; and workplace relations.

This Inquiry is being lead by ALRC President, Professor Rosalind Croucher. The Terms of Reference for this Inquiry are at Appendix C.

Consultation meetings

Consultation lies at the heart of the ALRC inquiry process, and during each inquiry the ALRC meets with relevant stakeholders around the country, as appropriate to each inquiry. These consultations assist the ALRC to identify key issues, shape research questions, and contribute to the ALRC’s policy analysis and considerations in formulating proposals and recommendations for reform.

During 2013–14, the ALRC conducted a total of 312 consultations around the country, with respect to the following inquiries:

• Copyright and the Digital Economy—43
• Serious Invasions of Privacy in the Digital Era—69
• Equality, Capacity and Disability in Commonwealth Laws—90
• Native Title—110

National distribution of consultation meetings 2013–14

Diversity consultation strategy

The ALRC has a formal consultation strategy for engaging with groups who often find their voices are not heard—Indigenous peoples, those from culturally and linguistically diverse backgrounds, people with disability and members of the lesbian, gay, bisexual, transgender and intersex community. These strategies act as a guide for the ALRC’s legal teams at the beginning of each new inquiry to ensure that these groups within the community are targeted for consultation and that our methods of consultation are appropriate. The ALRC reviews these strategies annually as part of its Agency Multicultural Plan. The ALRC’s Multicultural Plan is on the ALRC website and a performance report against this Plan is at Appendix M.

To enhance its consultation with people from diverse communities, the ALRC has produced two key documents, the Law Reform Process and How to Make Submission, in 21 community languages including Auslan. These documents have also been produced in Easy English, for people with low English literacy skills.

Consultation papers and reports

Consultation papers are one of the key mechanisms the ALRC uses to identify and analyse the important issues in each inquiry. The number of consultation papers released in the course of an inquiry depends on the nature of that inquiry and the timeframe set by the Attorney-General. Generally, ALRC inquiries follow a two-stage consultation process that includes the release of an Issues Paper accompanied by a call for submissions, followed later in the inquiry by a Discussion Paper and a second call for submissions, and then the release of a Report.

All ALRC consultation papers and reports are published on the ALRC website in HTML, PDF and Epub versions. Reports are also produced in hard copy for tabling purposes and for sale.

Table 3: Distribution of ALRC publications 2013–14