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 2014–15, the ALRC has:

• worked on three inquiries—the review of equal recognition before the law and legal capacity for people with disability, the review of the Native Title Act 1993 (Cth) and the review of Commonwealth laws for consistency with traditional rights, freedoms and privileges;

• produced final reports for the Disability and the Native Title Inquiries;

• 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

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 was 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 was led by ALRC President, Professor Rosalind Croucher AM. An Advisory Committee was established and met twice during the Inquiry to provide guidance and valuable feedback to the ALRC on its recommendations for reform.

The ALRC released an Issues Paper on 15 November 2013 and a Discussion Paper on 22 May 2014. Over the course of the Inquiry, the ALRC conducted 86 consultations and received 156 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 243 downloads of the Easy English Issues Paper, 266 downloads of the Easy English Discussion Paper and 241 downloads of the Easy English Summary of the Final Report 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. A final podcast outlining the key concepts and recommendations in the Final Report was also produced by Professor Rosalind Croucher and Graeme Innes so as to provide easier access to the Report’s final recommendations.

The Final Report Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124) was tabled in Parliament on 24 November 2014 by the Attorney-General, Senator the Hon George Brandis QC. The Report makes 55 recommendations for reform that if implemented, will better provide people with disability 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.

Central to these reforms are the ALRC’s recommended National Decision-Making Principles, developed by the ALRC to guide reform at a national level. The Principles reflect the paradigm shift signalled in the United Nations Convention on the Rights of People with Disabilities (UNCRPD) away from ‘best interests’ decision-making to a focus on ‘will, preferences and rights’. The National Decision-Making Principles should inform all areas of the law where people with disability are required to make decisions. The ALRC has also recommended a new Commonwealth decision-making model that will encourage the adoption of supported decision-making at a national level. The new model introduces mechanisms for the appointment of ‘supporters’ for adults who may require decision-making support, and provisions relating to ‘representatives’ to address circumstances in which a person may desire, or require, someone else to make decisions for them. The new Commonwealth decision-making model recognises the ability of people with disability to make decisions for themselves and places the emphasis upon support. It is a model based on principles of dignity, equality, autonomy, inclusion and participation—and accountability.

The Report was launched in Sydney on 11 December 2014. Part-time Commissioner for the Inquiry, Graeme Innes AM said, “This Inquiry was an internationally groundbreaking examination of the implications of the UNCRPD for laws and legal frameworks that might disempower people with disability. In adopting the model recommended in the Report and leading its implementation federally, the Australian Government can maintain its leadership in championing and implementing reforms for persons with disability. The ALRC also recommends that this Commonwealth model guide a review of state and territory laws affecting people with disability. In this way the ALRC Report can provide a catalyst towards further initiatives at the state and territory level.”

The Report is under consideration by the Government.

Inquiry into the Native Title Act 1993 (Cth)

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 final Terms of Reference directed the ALRC to consider the Native Title Act 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 the Commissioner to lead this Inquiry. An Advisory Committee was established and met twice during the reporting period. In undertaking this Inquiry, the ALRC sought evidence as to whether the current native title system is meeting its objectives, whether specified options for reform would improve the operation of the system, and whether alternative reform options should be implemented. In particular, the ALRC sought evidence as to whether the reforms recommended in this Report would: advance the recognition and protection of native title; acknowledge the range of interests in the native title system; encourage timely and just resolution of claims; be consistent with international law; and support sustainable futures.

An Issues Paper was released on 20 March 2014 and a Discussion Paper was released on 23 October 2014. Two national rounds of consultation meetings were conducted following the release of each of the two consultation documents. This Inquiry has analysed evidence gleaned from 162 consultations, including consultations with Commonwealth, state, territory and local governments, departments and agencies; with judges and registrars from the Federal Court of Australia; with Indigenous leaders and traditional owners; with Indigenous groups including Native Title Representative Bodies, Native Title Service Providers, Prescribed Bodies Corporate and Land Councils; with industry including peak bodies representing the agriculture, pastoral, fisheries, and minerals and energy resources industries; with the National Native Title Tribunal; and with a number of anthropologists and academics. Consultations were held around the country including in Perth, Broome, Darwin, Cairns, Brisbane, Coffs Harbour, Canberra, Adelaide, Melbourne and Sydney.

The ALRC received 72 submissions throughout the Inquiry. The ALRC acknowledges the profound contribution made by judges of the High Court and Federal Court to the development of native title jurisprudence over the 20 years since the Native Title Act was enacted. The ALRC appreciates the insights that were offered into the native title claims process by many current and former members of the Federal Court who generously gave of their time and expertise to the Inquiry.

The Native Title Act is far-reaching and complex legislation which affects many people. The Act is Commonwealth legislation, but the extent to which native title is recognised, and may be recognised, varies across Australia due to historical factors. Parties in the native title system have ordered their practices and interactions with other parties and with native title institutions as the law has evolved over a 20 year period since the introduction of the Native Title Act. Stability and certainty are important matters. The Native Title Act is invested with many aspirations for the future of Australia’s Indigenous peoples. It has brought opportunities and challenges for the wider Australian society.

The recommendations made in the Report are intended to:

• address the complexities of proving native title and the amplified requirements for connection, relating to the definition in s 223 of the Native Title Act;

• acknowledge that, while retention of a focus on traditional laws and customs is important, the law should be flexibly applied to allow evolution, adaptation and development of those laws and customs and succession to native title rights and interests;

• expedite the claims process by removing ‘substantially uninterrupted continuity’ and the ‘normative society’ requirements as a strict necessity and refocusing on the core elements of the definition of native title;

• facilitate the drawing of inferences of fact in defined circumstances, while recognising that the extent of evidence required to establish native title is in tension with the object of the Act to recognise and protect native title;

• provide statutory reflection of the principles developed by the High Court that recognised that a native title right may be exercised for any purpose—commercial or non-commercial and to include a native title right to trade in a non-exhaustive list of native title rights and interests;

• strengthen the internal governance of the claim group by clarifying the functions, powers and duties of the applicant;

• streamline the process of removing a member of an applicant who is unable or unwilling to act;

• ensure access to justice for parties whose interests may be affected by a native title determination, while recognising the need for efficient and fair administration of justice; and

• ensure that native title claims are resolved in a fair and efficient manner.

Native title has the capacity to contribute to the improvement of the circumstances of Aboriginal and Torres Strait Islander peoples. If native title is to provide an effective platform for future development, then a prerequisite is ensuring an equitable process within the law governing connection requirements—the subject of this Inquiry.

The Report was provided to the Attorney-General at the end of April, and was tabled in Parliament on 4 June 2015. It was launched in Sydney on 29 June 2015 by ALRC President, Professor Rosalind Croucher AM, with speakers Dr Valerie Cooms, Professor Lee Godden and Senator the Hon Arthur Sinodinos AO, on behalf of the Attorney-General, Senator the Hon George Brandis QC.

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 Freedoms Inquiry). The ALRC was 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 for this Inquiry are at Appendix C.

This Inquiry is being lead by ALRC President, Professor Rosalind Croucher AM. An Advisory Committee has been formed and has met once during the reporting period, on 7 May 2015. An Issues Paper was released on 10 December 2014. During this reporting period the ALRC has received 82 submissions and has undertaken 28 consultations. The ALRC anticipates releasing an Interim Report in July 2015 and is due to report to the Attorney-General in December 2015.

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 2014–15, the ALRC conducted a total of 88 consultations around the country, with respect to the following inquiries:

• Equality, Capacity and Disability in Commonwealth Laws—8
• Native Title—52
• Freedoms Inquiry—28

National distribution of consultation meetings 2014–15

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 identified for consultation, when relevant, 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 K. A report against our Reconciliation Action Plan (RAP) is at Appendix L.

To enhance its consultation with people from diverse communities, the ALRC has produced two key documents, the Law Reform Process and Making a Submission, in 21 community languages including Auslan. These documents have also been produced in Easy English, for people with low English literacy skills. During the reporting period, there were 506 downloads of the easy English version of Making a Submission, and 490 downloads of the Law Reform Process.

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 Final Report.

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

Table 3: Distribution of ALRC publications 2014–15