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Annual Report 2006-07 Part 2 - Performance Outcomes 1

5. Outcome 1: An equitable and accessible system of federal civil justice
   • Output 1.1—Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law, and administration of related government programs
   • Output 1.2—Support for the Attorney-General as First Law Officer, advice on constitutional policy, and promotion of Australian legal services internationally
   • Output 1.3—Legal services and policy advice on information law and human rights
   • Output 1.4—Legal services and policy advice on international law
   • Output 1.5—Drafting of legislative and other instruments, maintenance of the Federal Register of Legislative Instruments, publication of legislative materials and provision of related legal services
   • Output 1.6—Legal services and policy advice on native title
   • Output 1.7—Legal services and policy advice on Indigenous law and justice and legal assistance, and the administration of related government programs

Reporting basis and approach

Performance reporting in this annual report is based on the outcomes and outputs structure framework and performance information contained in the 2006–07 Portfolio Budget Statements (PBS) and 2006–07 Portfolio Additional Estimates Statements (PAES).

The Department’s annual report has a dual role: it is a key document that is part of the Department’s accountability to Parliament and it is an informative record of our activities during the year. In this report we aim for a balance between an assessment of our progress towards achieving our outcomes and a description of the diverse activities undertaken by the Attorney-General’s Department.

In 2006 the Department undertook a review of its performance reporting framework. The outcome of this review led to a more robust framework through the development of new PBS performance indicators. These indicators form the basis of the performance reports for each output and better describe the key activities of each output.

Each output has a set of common performance indicators as well as their own specific performance indicators. The common indicators relate to parliamentary workload and the numbers of advice provided to stakeholder agencies. This new framework of performance indicators means that performance reporting in future years can be examined in context, providing meaningful comparison with the performance of previous years.

Performance report structure

At outcome level, each performance report contains:

• an overview of activities that contributed to that outcome
• a resource summary table
• a report on administered items, and
• separate reports on each of the departmental outputs contributing to the relevant outcome.

At output level, each performance report contains:

• a performance overview of how the output achieved its stated objective (and so contributed to achieving the related outcome in 2006–07)
• results of any evaluations or reviews
• purchaser–provider arrangements, where relevant
• a statement identifying contextual challenges or problems affecting progress
• an outlook statement highlighting activities or goals for the next financial year, and
• reports against the performance indicators in tabular form associated with the output as stated in the PBS.

Outcome 1

An equitable and accessible system of federal civil justice

Overview

In order to achieve Outcome 1, the Attorney-General’s Department provides a diverse range of legal services and policy advice.

The Department’s responsibilities cover courts and tribunals, alternative dispute resolution, administrative law, bankruptcy, classification, constitutional policy, human rights, evidence and procedure, personal property securities law reform, family law and related services for separated families, legal assistance, international law, information law, Indigenous justice and native title.

It provides specialist support for the Attorney-General as First Law Officer, promotes Australian legal services internationally, and drafts and publishes legislative materials.

In working to achieve this outcome, the Department is also responsible for administering payments for the provision of legal aid, Indigenous law and justice programs, community legal services, financial assistance towards legal costs and related expenses, and expenditure under the Native Title Act 1993.

The Department works in cooperation and consultation with many other organisations. These include government agencies (Commonwealth, State and Territory), advisory bodies, task forces, professional associations and community interest groups. It must also be flexible and able to adapt its operations to respond to international events or trends.

During 2006–07, we made significant and substantial progress towards achieving an equitable and accessible system of federal civil justice, with many of our contributions receiving positive comments from the Attorney-General and a variety of stakeholders. The performance reports for each output contributing to Outcome 1, presented later in this section, expand on these achievements.

Resource summary

* Full-year budget, including additional estimates.

* Full-year budget, including additional estimates.

Our People

Achieving a just and secure society

Back row, from left: Kathleen Falko, Ingrid Nemeth, Samantha Patterson, Ruvani Panagoda, Jing-ting Chan;
centre: Fung Chan, Susan Davis; front: Matt Minogue, International Family Law Branch.

A nationally consistent and strategic approach is being taken in the development of intercountry adoption programs by the International Family Law Branch as it assumes a greater role in the process, both here in Australia and overseas. The Branch took on new responsibilities with the implementation of the recommendations of the parliamentary report Overseas Adoption in Australia. This has included taking over responsibility for the management of existing adoption agreements from the States and Territories.

Matt Minogue, Assistant Secretary of the Branch, explained that successful intercountry adoption programs are underpinned by strong relationships with officials in countries that have children in need of families.

‘We have actively sought to build these relationships, both in Australia and overseas. In particular, we have met with delegations visiting Australia from China, India, Vietnam, Cambodia, Thailand and Korea. These meetings strengthen existing ties between our countries and affirm Australia’s ongoing commitment to intercountry adoption as one important way of meeting the best interests of children who need a family. Another good example was a visit to Ethiopia made with the Queensland Department of Child Safety, to discuss the operation of the adoption program.’

Principal Legal Officer Kathleen Falko, who participated in the visit to Ethiopia, outlined the practical advantages of the visit. ‘

Australia has had a bilateral agreement with Ethiopia since 1994. We had the opportunity to see first hand how the program is managed. This included visiting local orphanages and Koala House —the Australian transit facility for children. It also brought home to us the challenges facing the local husband and wife team, Ato Lakew Gebeyehu and Woz Misrak Getahun, who act as Australia’s representatives under the program.’

The African visit also included meetings with adoption officials in Nairobi. Australia does not have an adoption program with Kenya so these meetings focused on the intercountry adoption framework there and the Australian structure.

Exploring new intercountry adoption opportunities also took the Branch's officers to Vietnam. This gave them the chance to discuss safeguards necessary for any potential intercountry adoption program, and also to present Australia as a country with parents available to meet the needs of Vietnamese children.

The Branch will continue to pursue opportunities to build and strengthen relationships as part of Australia's activities to enhance opportunities for Australian families to adopt children from overseas.

Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

Summary

Continuing the implementation of reforms to the family law system, a major focus of the Civil Justice Division in 2006–07 was the introduction of compulsory family dispute resolution and the further roll-out of new Family Relationship Centres and other services. In this, it worked closely with the Department of Families, Community Services and Indigenous Affairs (FaCSIA), the Child Support Agency (CSA) and Centrelink. The International Family Law Branch was established to implement the Government’s new responsibilities in relation to intercountry adoption. We continued to work effectively with federal courts, tribunals and other stakeholders to achieve an equitable and accessible federal civil justice system.

Major achievements

For families

Family relationship services

The Division successfully completed the second year of a three-year program of reforms to the family law system. As planned, the first 15 new Family Relationship Centres opened in July 2006 and have been well received by the public. The selection process for 25 more centres was completed in the first half of 2006–07, ready for them to open on schedule on 2 July 2007. Seven new Children’s Contact Services and four Parenting Orders Program services also commenced in 2006, with the selection process for nine more Children’s Contact Services and eight more Parenting Orders Program services completed, as planned. By streamlining the selection process, we were able to provide the Attorney-General with earlier advice, enabling him to make earlier announcements than in the previous year, thus allowing providers more time to set up their services.

In July 2006, we also launched the Family Relationship Advice Line and Family Relationships Online to support the family law reforms.

Compulsory dispute resolution

A major focus of our work in 2006–07 was preparing for the introduction of the requirement from 1 July 2007 that parents wishing to take a parenting dispute to court must first try to resolve it with the help of a registered family dispute practitioner (such as a mediator). We developed an accreditation and registration process for family dispute resolution practitioners; established a web-based register of family dispute resolution providers; introduced amendments to the Family Law Regulations 1984; developed information products; consulted with the courts, service providers and stakeholders; and undertook national program of workshops and information sessions.

Connected government on family law reforms

The Division worked closely with FaCSIA to introduce new services in the family law system and to develop and improve existing services for families. This collaboration was supported by a business partnership agreement. We also worked closely with CSA, assisting separated parents through streamlined referral arrangements between the CSA and service providers. As part of a cross-government effort, we assisted FaCSIA and CSA in the implementation of the Child Support Scheme Reforms (CSSR).

Intercountry adoption

In 2006–07, the Division addressed community concerns expressed in the House of Representatives’ Standing Committee on Family and Human Services Overseas adoption in Australia report. We worked cooperatively with State and Territory central authorities on the renegotiation of the 1998 Commonwealth–State Agreement on the implementation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. We developed a strategic plan for the management and establishment of Australia’s intercountry adoption programs, agreements and arrangements and consulted nationally on the establishment of a national support group in meetings in early 2007 and invited feedback. We managed the transition of responsibility of Australia’s intercountry adoption programs from State and Territory central authorities to the Department, and established and strengthened relationships with foreign countries in relation to intercountry adoption arrangements. This was achieved through direct contact, including meetings in Australia and overseas, with officials, from South Africa, Korea, Thailand, Nepal, Kenya, Ethiopia, India, and Cambodia.

Marriage celebrants

Improved administration of the Marriage Celebrants Program was identified as a priority for 2006–07. We implemented the Government’s decision to increase the cap on the number of marriage celebrants who may be registered from 10 per cent to 20 per cent of the total number of marriage celebrants registered by the Commonwealth. During the year, 809 new marriage celebrants were registered and 15,629 enquiries responded to.

International child abduction and protection

In accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Division provided assistance to applicants to secure the prompt return of children wrongfully removed to or retained in any country party to the Convention. In 2006–07, 80 children were returned to Australia (44 following court orders and 36 voluntarily) and 57 children were returned from Australia to other countries (36 following court orders and 21 voluntarily). We continued to liaise with the Lebanese Government on an agreement that aims to promote cooperation between the two countries in cases involving the protection of the welfare of children. In 2006–07, we also developed procedures for handling possible cases under the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibilities and Measures for the Protection of Children. These include issues arising when children travel and where there are parental responsibility orders and child protection orders made under the Convention.

Asia–Pacific Regional Meeting on the Work of the Hague Conference on Private International Law

In June 2007, the Department and the Permanent Bureau of the Hague Conference on Private International Law jointly hosted an Asia–Pacific conference in Sydney on legal cooperation on service of process, taking of evidence and legalisation of foreign documents and the conventions on the protection and welfare of children, including those on child abduction, child protection and child maintenance and intercountry adoption. The meeting of 120 delegates from 23 countries stimulated interest in the various conventions and promoted international collaboration and membership of the  ague Conference. The meeting aimed to expose countries in the region to the work of the Hague Conference, many of which are not signatories to the Hague conventions and are not members of the Hague Conference.

Overseas maintenance

The Division continued to work closely with the CSA to ensure that child support liabilities and proceedings under the Family Law Act 1975 were pursued effectively and in a timely fashion. We also contributed—in collaboration with CSA—to the development of the draft Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. This included attending a meeting in May 2007 of the Special Commission on the International Recovery of Child Support and Other Forms of Family Maintenance.

Family Law Violence Strategy

Collaboration continued with the Family Court and the Federal Magistrates Court, and the States and Territories to ensure allegations of family violence and child abuse are investigated promptly and thoroughly. A report by the Australian Institute of Family Studies, Allegations of family violence and child abuse in family law children’s proceedings, was released in May 2007. Its findings will inform future policy development on the manner in which allegations of family violence and child abuse are addressed in family law proceedings.

Surrogacy

In November 2006, the Attorney-General asked the Standing Committee of Attorneys-General (SCAG) to consider the possible harmonisation of laws regulating surrogacy. SCAG agreed and a working group prepared an issues paper that was discussed at the next SCAG meeting in April 2007. The Victorian Law Reform Commission’s final report on assisted reproductive technology was tabled on 7 June 2007. It was anticipated that this report will assist in SCAG’s further consideration in 2007–08 of issues relating to surrogacy.

Family law superannuation

Amendments were made to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 consequential on the passage and commencement of the Government’s Simplified Superannuation reforms passed in the autumn 2007 parliamentary sittings. The amendments to the Family Law (Superannuation) Regulations were accompanied by other amendments, including those permitting spouses to check whether superannuation interests have been correctly valued under the Regulations by superannuation fund trustees. Consultations were held with State officials and their advisers in New South Wales and Victoria over applications made by those States under the Family Law (Superannuation) Regulations for the approval of alternative methods for valuing superannuation interests held by spouses in certain public sector superannuation schemes.

De facto financial matters

In 2006–07, the Civil Justice Division continued work on the development of a nationally consistent financial settlement regime for de facto couples on relationship breakdown. Consultation occurred with State and Territory officials, the Family Court and the Federal Magistrates Court, the Family Law Council and the legal profession about proposals to implement references of power from New South Wales, Victoria, Queensland and Tasmania, and to legislate in similar terms in the Territories on these matters. There was also consultation with Western Australian and South Australian officials on the prospect of a full reference on de facto financial matters from those States. Western Australia has given a reference on superannuation matters relating to de facto couples arising from the breakdown of their relationship. As well as achieving a coherent national scheme, full references would remove jurisdictional disputes in cross-border cases.

Family Law Amendment Bill

The Division continued to assess and develop a range of amendments to the Family Law Act, building on the significant family law reforms that commenced in 2006.

For the courts and administration of justice

Judiciary Legislation Amendment Act 2006—Non-judicial officers

To ensure the efficient and flexible operation of State courts and their valid exercise of federal jurisdiction, we developed a legislative response—in the form of an amendment in December 2006 to the Judiciary Act 1903—to rectify the problem of non-judicial officers of State courts of summary jurisdiction having purported invalidly to exercise federal jurisdiction.

Federal Court criminal jurisdiction

Divisional officers progressed work on a Bill to enable the Federal Court of Australia to exercise concurrent jurisdiction with State and Territory supreme courts to hear prosecutions on indictment of cartel offences proposed to be inserted in the Trade Practices Act 1974. The conferral of an indictable jurisdiction will represent a significant new direction for the Federal Court, but one that is entirely consistent with its role as a superior court with expertise in federal commercial matters including matters arising under the Trade Practices Act.

Judges’ pensions

The Judges’ Pensions Amendment Bill was introduced into the Parliament on 14 June 2007. The Bill amends the Judges’ Pensions Act 1968 to apply to federal judges who are subject to the superannuation surcharge the reduced rates of surcharge that applied in 2003–04 and 2004–05 and provide to those judges an option of commuting a proportion of their pension entitlements to discharge surcharge debts. The Bill was one of several measures on which the Division worked in close consultation with the federal courts to ensure an equitable and accessible system of federal civil justice.

Statute Law Revision Act

The Statute Law Revision Act 2007 received Royal Assent on 15 March 2007. The Act improves the quality and accuracy of Commonwealth legislation and facilitates the publication of consolidated versions of Acts by amending 31 Acts to correct minor technical and drafting errors, and repealing 17 obsolete Acts that have no current or future operation. The Act also removes references to the obsolete terms ‘official managers’ and ‘official management’ from Commonwealth legislation and removes gender-specific language from the Customs Act 1901.

A new privilege for journalists and their sources

The Division was responsible for developing legislation to amend the Evidence Act (the Evidence Amendment (Journalists’ Privilege) Bill 2007) to provide a new privilege to protect confidential communications between journalists and their sources. The new privilege is discretionary. It allows a court to balance the interests of justice and protection of the community with the public interest in a free press and the right to know. The legislation was modelled on a recommendation of the Australian, NSW and Victorian Law Reform Commissions in the Uniform Evidence Law report. The legislation had input from several areas of the Department and was developed in consultation with a number of key agencies including Treasury and the Australian Federal Police. We are continuing to work with the States and Territories on a number of other recommendations of that report, to finalise model provisions for consideration through SCAG.

Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement

A joint Working Group on Trans-Tasman Court Proceedings and Regulatory Enforcement released its final review report in December. The Working Group recommended a series of reforms designed to enhance cooperation between Australia and New Zealand in civil court proceedings and enable trans-Tasman disputes to be resolved more effectively and at lower cost to businesses and individuals. Officials of the Division and the New Zealand Ministry of Justice commenced preliminary work on a bilateral treaty to introduce the reforms.

Appointments to the federal courts and tribunals

We assisted the Attorney-General on the appointments of five judges to the Federal Court, three judges to the Family Court and 17 federal magistrates, all of whom took office in 2006–07. For the first time, federal magistrate appointments were made in Perth and Cairns. With the announcement of the appointment of three additional federal magistrates in June 2007, to take effect in July, the Federal Magistrates Court (comprising the Chief Federal Magistrate and 51 other federal magistrates) is now the largest of the four federal courts. We also assisted with the appointment of a new judge to the Supreme Court of Norfolk Island.

In 2006–07, the Division also assisted the Attorney-General with 15 new appointments and nine reappointments to the Administrative Appeals Tribunal, seven reappointments to the National Native Title Tribunal and the reappointment of a member of the Defence Force Discipline Appeal Tribunal for a further five years.

Evaluations/reviews

Evaluation of the Building Connections Pilot Project, March 2007

This evaluation analysed the outcomes of an educational program for separated parents, piloted by Interrelate, a provider of family relationship services. Twenty seminars were conducted for 105 participants at four regional NSW locations. The evaluation showed the program achieved positive change in focusing participants on their children’s needs rather than on the conflict between parents. In 55 per cent of cases, participants were more willing to seek help following the program. The evaluation report can be found at the Department’s web site, <www.ag.gov.au>. As a result of the positive outcomes of the pilot project, the Government announced in the 2007–08 Budget that new services using this approach would be rolled out at 28 regional locations over two years.

Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution, October 2006

Led by Dr Jennifer McIntosh, the Children beyond dispute study compared outcomes for families assisted with different approaches to mediation. It followed two groups of 70 families in Canberra, Melbourne and Adelaide. For one group of families, the child was consulted as part of the mediation process (child-inclusive mediation). For the other group, the mediation focused the parents on the needs of the children, without the children being directly involved (child focused). Both forms of mediation reduced conflict and resolved disputes in a majority of cases. Child-inclusive mediation showed better outcomes for children, better relationships between children and fathers, and agreements that are more durable. The report can be found at the Department’s web site, <www.ag.gov.au>. The research supported the need for more services that provide an opportunity for children to be involved in the process. In the 2007–08 Budget, the Government announced new services for children in regional Australia that will help meet this need.

Challenges

Family relationship services

The difficulty in attracting professionally qualified staff to smaller regional centres is a particular challenge for service providers when they seek to establish family relationship services in rural and remote locations. The mining boom in Western Australia has dramatically increased that challenge. Community based service providers have to compete with mining companies for staff and have difficulties in that state obtaining accommodation for staff and for service delivery. Even ‘fly-in, fly-out’ services are difficult to establish in the absence of short-term accommodation. In May 2007, divisional officers visited the Pilbara and the Kimberley to meet with service providers and discuss the issues they face in establishing or maintaining services in those regions. The information gained from those discussions will assist the Division in planning new services in the regions and in supporting those already there.

Intercountry adoption

Key challenges include working with all Australian jurisdictions to identify inconsistencies and harmonise adoption laws, fees and practices. A continuing challenge in the area of intercountry adoption is the process of identifying children in other countries who need Australian families, in accordance with the provisions of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. This challenge will be addressed by working to improve the operation of existing programs and exploring opportunities for the establishment of new programs. This work will be guided by the development of a strategic plan to ensure a consistent approach to the management and establishment of Australia’s intercountry adoption programs.

Outlook

Family law reform

The coming year will see the final stage of the three year roll-out of the new and expanded services under the family law reform package announced in the 2005–06 Budget. We will conduct selection processes for 25 Family Relationship Centres and 14 Children’s Contact Services. This will bring the number of Family Relationship Centres to 65.

The 2007–08 Budget measure Helping Separated Parents and their Children will provide $36.9 million over four years for two new community based services in regional Australia, an education and support program for separated parents in high conflict and a program for children affected by separation. We will begin the roll-out of those services by undertaking the selection process for organisations to provide the educational and support program in the first 14 regional locations. The selection process for a further 14 locations will be undertaken in the following year and we will also prepare for the roll-out of the new program for children.

Intercountry adoption

Over the next financial year, it is anticipated that the National Peak Overseas Adoption Support Group will be established. The group will provide a mechanism for the exchange of information between the Australian Government and the intercountry adoption community. A new web site will provide information on intercountry adoption and a strategic plan will be completed for the management and establishment of intercountry adoption programs. We aim to complete the handover of responsibility for day-to-day casework of the programs to State and Territory governments and it will encourage the harmonisation of legislation practices through a national working group.

Uniform evidence laws

In the first part of 2007–08, we anticipate developing amendments to the Evidence Act 1995 to implement a response to the joint report of the Australian, NSW and Victorian Law Reform Commissions on uniform evidence laws tabled in Parliament in February 2006. This legislation will promote harmonisation of evidence laws and follows extensive work by a joint working party of SCAG that has been advising on the recommendations of that report and developing a model uniform evidence Bill.

Our People

Achieving a just and secure society

Karl Alderson (left) and Andrew Lawrence, Office of Legal Services Coordination.

Australian government departments, agencies and leading law firms have held discussions under the auspices of the Attorney-General’s Department to explore the use of alternative dispute resolution across government.

Organised by the Department’s Office of Legal Services Coordination, (OLSC) the discussion group brought together officers from a range of departments and agencies including the Departments of Finance; Employment and Workplace Relations; Education, Science and Training; Immigration and Citizenship; and Transport and Regional Services, as well as key agencies such as the Australian Taxation Office, IP Australia, and the Administrative Appeals Tribunal.

The private profession was also represented by lawyers from a number of firms, and the President of the Australian Bar Association.

Karl Alderson, OLSC Assistant Secretary, says the discussion topic reflected the central importance of alternative dispute resolution to government lawyers, and the desire of agencies to work together to share best practice. The discussion group also provided an ideal opportunity for discussion of draft guidelines on dispute management prepared by the National Alternative Dispute Resolution Advisory Council (NADRAC).

Karl Alderson led the discussion group which included keynote speaker Justice Murray Kellam, NADRAC Chair, and Professor Michael Pryles, President of the Australian Centre for International Commercial Arbitration (ACICA).

He explained that OLSC’s involvement in promoting alternative dispute resolution follows on from action taken by the Attorney-General. ‘In mid-2005, Mr Ruddock wrote to his ministerial colleagues to draw their attention to the international commercial arbitration clause in ACICA arbitration rules and to encourage its use by Australian government departments, agencies and business in cross-border contractual documentation,’ Karl said.

‘This was one of the best attended and best received of the discussion groups we held during the year. The fact that we were able to bring numerous agency legal units together with two high profile presenters and key private practitioners was fantastic. There was extensive discussion following the presentations,’ he added.

Andrew Lawrence, legal assistant with OLSC and now on the graduate program, was responsible for the grass-roots organisation of the discussion group.

‘It was a great opportunity for me to see first-hand how productive it is for agencies and private-sector law firms to get together to discuss important issues like arbitration and in particular alternative dispute resolution,’ he said.

The OLSC discussion groups have been held for over two years and have attracted representatives from more than 30 agencies, including a range of government departments including defence, tax, immigration and the Australian Competition and Consumer Commission.

According to Karl Alderson they are a useful forum for users and purchasers of legal services across the Commonwealth to participate in robust and informative discussion.

‘They’ve also helped OLSC build active and productive relationships with key stakeholders while allowing participant agencies to share knowledge and identify opportunities to improve systems and practices for the purchase and use of legal services provided by the Australian Government,’ he added.

Performance indicators

(Quantitative and qualitative)

Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department's annual workload survey and are an aggregated figure over four separate one week periods - two from a parliamentary sitting week and two from non-sitting periods.

Our People

Achieving a just and secure society

Robert Patch, Personal Property Securities Division.

In May 2006, the Personal Property Securities Reform team organised a seminar in Brisbane on PPS reform for businesses, legal practitioners, public servants and academics.

At the end of his speech, the Attorney- General paid tribute to Professor David Allen, who campaigned for PPS reform for about 20 years before his death in February 2006.

‘The audience was impressed by the speech, and with the Attorney’s personal enthusiasm for PPS reform and commitment to honouring Professor Allen’s memory,’ Principal Legal Officer Robert Patch said.

There are currently more than 70 pieces of Commonwealth, State and Territory legislation dealing with PPS. Placing two large text books on the table next to two much smaller volumes, Mr Patch demonstrates the complexity of Australia’s current PPS legal framework. Recognising the need for reform, in April 2007, the Council of Australian Governments agreed in principle to establish a national system for registering PPS interests.

The Australian Government has committed more than $110 million to build the new national system, including an online register. The new law and register will allow lenders and purchasers entering into transactions involving personal property (all property other than buildings or land) to check cheaply and easily whether there is an encumbrance over the property. The register will also enable priority issues in insolvency cases to be resolved more easily.

When the reform process is complete, Australia will have a single Commonwealth Act providing a comprehensive statement of PPS law.

‘The Government has an opportunity to create the first national PPS law that transcends State borders,’ Robert said.

Output 1.2

Support for the Attorney-General as First Law Officer, advice on constitutional policy, and promotion of Australian legal services internationally

Summary

The Classification, Legal Services and Native Title Division again provided responsive, pro-active and well received services to stakeholders, including the Attorney-General and his office, other Commonwealth departments and agencies, and providers of legal services to the Government. The Division promoted frameworks for advancing a national legal profession and the harmonisation of laws throughout the jurisdictions of Australia, assisted in the management of classifications for film and publications, and promoted legal cooperation and the export of Australian legal services in the Asia–Pacific region and more broadly.

Major achievements

Achieving whole-of-government objectives in legal services

A key performance indicator was the extent to which the framework for the handling of legal matters by the Australian Government to achieve whole-of-government objectives was maintained and enhanced. As indicated in the 2005–06 annual report, the Division had anticipated working closely with other agencies in the year ahead to achieve compliance with the Legal Services Directions 2005, including reporting on compliance and publishing information about expenditure on legal services. The Directions provide a framework for the delivery of legal services to the Australian Government and its agencies. To promote this, seminars were held in 2006–07 for agencies and private legal services providers in Canberra, Sydney and Melbourne. These events improved awareness of the Directions, including its 2006 amendments, and promoted compliance to reduce the possibility of future breaches.

Note: The figures for 2005–06 breaches under investigation at year’s end differ from those reported in the 2005–06 annual report. One investigation was inadvertently omitted from the statistics in that report.

We investigated 51 possible breaches of the Legal Services Directions in 2006–07 (including 11 that arose before 1 July 2006). Those substantiated were mostly in relation to the fees paid to counsel (see Table 1).

Other breaches related to performance of tied legal work without approval, compliance with the model litigant obligation, failure to refer a decision about public interest immunity to the agency with administrative responsibility, failure to include a sanction provision in a contract for legal services, and failure to provide a certificate of compliance with the Directions for 2005–06. When we investigated breaches we engaged with the agency or law firm on obligations under the Directions, on appropriate remedies, and on steps to be taken to avoid future breaches.

a. As of 1 March 2006, the Office of Legal Services Coordination (OLSC) took on responsibility for setting all initial rates for counsel briefed by the Commonwealth.

b. In seven cases, an application received by OLSC resulted in the approval of both ongoing and one-off rates. In two cases, a rate granted by OLSC was reviewed at the applicant’s request, and the approval adjusted. These rates have been counted as only one approval.

Through the Office of Legal Services Coordination (OLSC), we considered 360 counsel fee applications in a timely and responsive manner, as required by the Directions (see Table 2). Considerable assistance was provided to departments and agencies to guide them on application of the Directions. The Office worked closely with the Department of Finance and Administration to advise the two ministers responsible for the Australian Government Solicitor (AGS) about its performance and compliance with its obligations as a body corporate under the Commonwealth Authorities and Companies Act 1997. OLSC assisted the Australian Government Solicitor to enhance its corporate reporting to ministers on its activities in support of the Attorney-General as First Law Officer, and to enable ministers to better assess this aspect of AGS operations.

The Office managed the Department’s legal services panel in its first year of operation, assisting Divisions of the Department with legal services purchasing. The Office fostered a community of practice on the use of legal services. It also continued to work closely with the Insolvency and Trustee Service of Australia (ITSA) in relation to personal insolvency policy. It assisted with legislation on matters such as superannuation and debt agreements, attended the Sixth ITSA Bankruptcy Congress, attended meetings of the Bankruptcy Reform Consultative Forum, and participated on the committee established under section 155H of the Bankruptcy Act 1966 to consider the involuntary termination of a trustee in bankruptcy.

Constitutional issues in litigation and in policy development

The Constitutional Policy Unit provided assistance and advice on constitutional policy and development, litigation and public law issues of federal significance. In particular, the Unit continued to assist with advice in relation to the harmonisation of federal legal arrangements in the areas of personal property securities, the application of federal family law to the property of de facto couples, and arrangements in relation to the law of evidence. The Unit was closely involved with the Department’s contribution to the inquiry by the House of Representatives Standing Committee on Legal and Constitutional Affairs into the question of Northern Territory statehood.

In consultation with the Solicitor-General and the Australian Government Solicitor, we continued to play a central role in all questions of intervention by the Attorney-General in constitutional litigation. In terms of constitutional litigation more generally, the Unit was engaged in the preparation of the Commonwealth’s case in a wide range of significant proceedings. It was closely involved, for example, in defending the High Court challenge to the Australian Government’s workplace relations reforms. Other significant matters included the High Court proceeding in Thomas v Commonwealth, which involved the validity of provisions of the Commonwealth Criminal Code dealing with ‘control orders’, and the High Court proceeding in Roach v Electoral Commissioner regarding the validity of provisions of the Commonwealth Electoral Act 1918 precluding a prisoner from voting at federal elections.

The Constitutional Policy Unit continued to provide technical advice on issues arising from the Cole Commission of Inquiry into the UN Oil-for-Food Programme. This included responsibility for the conduct of the Commonwealth’s case in various Federal Court proceedings on legal professional privilege claims before the Commission, and assistance in relation to the enactment of the Royal Commissions Amendment Act 2006. It included assistance on the reference by the Attorney-General to the Australian Law Reform Commission in November 2006 of terms of reference for an inquiry into legal professional privilege and Commonwealth investigatory agencies, and on the broader response by the Australian Government to the recommendations made by Commissioner Cole in his 2006 report.

Harmonising laws in Australia

The Division continued to promote the harmonisation of laws in Australia—a priority of the Attorney-General—through the Standing Committee of Attorneys-General (SCAG). Proposals for this were agreed to by the States and Territories in 2006–07. We had envisaged securing agreement for a national system for the regulation of personal property securities and encouraging uniformity in evidence laws. Progress on these priorities was made in the year.

We coordinated the Australian Government’s participation in SCAG and supported the Attorney-General and the Minister for Justice and Customs at the meetings. At the three meetings held in 2006–07, the Australian Government continued to pursue its objectives for appropriate, consistent and uniform legislation. We also supported the Attorney-General in hosting the SCAG meeting in Canberra in April 2007.

During the year, SCAG agreed to a large number of proposals from the Department. At the top of the list were new harmonisation initiatives including: development of reform proposals for harmonisation of statutory declarations regulation and forms; taking the steps necessary to enable Australia to accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; and preparing a discussion paper to examine the general principles relevant to the national harmonisation of limitation laws.

We supported the Attorney-General and the Government in the development of a proposal for reform through extensive consultation with stakeholders in industry, the legal profession, government and other sectors. SCAG agreed to proceed, in consultation with stakeholders, with the development of detailed proposals for the Personal Properties Securities (PPS) law reform. It developed three discussion papers on PPS reform for public comment and gained the agreement of the Council of Australian Governments (COAG). We also held a Policy Development Workshop in Sydney in July 2006 which included presentations from speakers who had experience of PPS in New Zealand and Canada.

SCAG agreed to establish a Coronial Liaison Officer network to facilitate coronial cooperation in mass disaster incidents, including agreement by State and Territory Attorneys-General to implement, in their jurisdictions, a draft model provision for one coroner to give aid to another. It also adopted a proposal from the Department to continue the Model Criminal Law Officers Committee to refine the Model Criminal Code and report to Ministers at each meeting on implementation of criminal law harmonisation projects. Finally, it agreed to consult with key stakeholders on two options for the central assessment of overseas qualified lawyers seeking admission to practise in Australia, and to adopt a number of high level principles to encourage consistency for future SCAG model legislation.

The Division worked closely with all Australian jurisdictions, the National Legal Profession Project secretariat in New South Wales and the Law Council of Australia to ensure the timely and consistent implementation by those States and Territories still to pass legislation based on the National Legal Profession Model Bill. It also finalised agreement upon the drafting of updated Model Regulations.

Most jurisdictions have now implemented the legislation. Legislation based on the National Legal Profession Model Bill was passed in the Northern Territory and commenced on 31 March 2007. The remaining jurisdictions (Western Australia, Tasmania and South Australia) were expected to follow later in 2007 or early 2008.

Film and literature classification

Classification is a cooperative scheme involving the Australian Government and all State and Territory governments. From 1 July 2006 the Division was responsible for Australian Government policy on the classification of film, literature and computer games and took a leading role in the development of classification policy nationally under the cooperative scheme.

The integration of the Office of Film and Literature Classification into the Department was achieved for 1 July 2007. There was close collaboration with the Office during the year to ensure a smooth transition of its operational, administrative and financial functions.

Major policy initiatives were advanced to improve classification for industry and consumers, and to respond to new challenges posed by changes in marketing and technology. Legislation was developed to ensure that the National Classification Scheme catered for captioning and interactive menus and that it streamlined the classification of already classified films with additional content. Legislation was developed and introduced into Parliament to respond to developments in marketing and distribution while retaining protections for consumers. New provisions were proposed to replace the prohibition on advertising unclassified films and computer games with an assessment scheme to allow advertising, subject to a range of conditions, and to introduce an authorised assessor scheme for compilations of episodes of a television series already broadcast in Australia.

A priority objective of the Attorney-General was to ensure that material advocating terrorist acts was refused classification and therefore not lawfully available in Australia. We responded efficiently and effectively on this, and negotiations on the necessary amendments to the National Classification Code and its guidelines took place with the States and Territories. Commonwealth legislation was developed and introduced into Parliament.

The Classification Policy Branch took responsibility for the Standing Committee of Attorneys-General (Censorship) Secretariat in July 2006. The Secretariat assisted the operation of the cooperative scheme by facilitating discussions between Commonwealth, State and Territory SCAG (Censorship) officials, settled papers to be presented to SCAG (Censorship) ministers, and assured the ongoing administration of the National Classification Scheme. It also provided administrative support for three meetings of Censorship officials in the year, held before the meetings of Censorship ministers.

We worked closely with the Office of Film and Literature Classification, the States and Territories, the Department of Communications, Information Technology and the Arts, and the Australian Communications Management Authority on the interaction between the classification scheme and the regulation of content on broadcast, online and other media. It also assisted the Government to make appointments to the Classification Board and Classification Review Board to ensure those boards continued to be broadly representative of the Australian community.

Legal services and cooperation

A major achievement in 2006–07 was the development and implementation of the Australia–China Legal Profession Development Program, an initiative conceived by the Department and funded through AusAID. It was introduced by the Division in collaboration with the Law Council of Australia and the All China Lawyers’ Association. The program involved 10 Chinese legal practitioners, including officials, undertaking a focused training and individual placement program in Australia over four months to provide them with experience and knowledge in specific areas of law and an understanding of the Australian legal system. This initiative was well received in China and by the Australian legal profession. We expect the Chinese lawyers, upon their return home, to make a contribution to law reform, the rule of law and the legal profession.

Another major achievement in 2006–07 was the establishment of a China Working Group on legal services to support negotiations for an Australia–China free trade agreement (FTA). The Working Group, which includes representatives from the legal profession, academia and government, provided the Australian Government negotiating team with details on market access priorities for the Australian legal profession in China. It identified options to assist Australian negotiators in proposing to their Chinese counterparts possible mechanisms through which Australian and Chinese lawyers could work together in the future.

We provided secretariat support for the International Legal Services Advisory Council (ILSAC). The Council’s main objectives are to promote the international profile of Australia’s legal services and system and to cultivate links between legal sector counterparts in Australia, the region and the world at large. The Council also supports development of Australia’s international legal education and training services, explores opportunities for enhancing Australia’s role in international commercial dispute resolution (ICDR), and improves coordination of public and private sector activities aimed at promoting the export of Australia’s international capabilities in legal and related services.

As anticipated, the Division again worked closely with the Department of Foreign Affairs and Trade (DFAT) and the legal profession in advancing Australia’s interests in legal services and legal education services in relation to free trade agreements (FTAs) being negotiated with China, Malaysia, Japan, ASEAN, Chile, and the Gulf Cooperation Council. Our input ensured that legal services were able to be progressed as a significant sub-sector of interest in each of the FTAs.

The Department was involved in matters under the existing FTAs with the United States and Singapore. On the US FTA, the Department made significant contributions to representations led by the Law Council of Australia. This led to the US Conference of Chief Justices passing a resolution encouraging all US jurisdictions to recognise a right for Australian lawyers to sit the bar examination in each of the US jurisdictions to gain admission to practise law. This was the first time the Conference had singled out a particular country for recognition in this manner. Continued support was provided to DFAT for Australia’s efforts to find a breakthrough in the World Trade Organization (WTO) negotiations and in particular for the legal services sector.

The Attorney-General led a 24-member Legal Services Mission to China that had representatives of ILSAC, law firms, law schools, commercial dispute resolution interests and the Department. The mission was highly successful in promoting the interests of Australian legal services providers and strengthened legal profession links in government and the private sector. The mission also played a role in building support in China for promoting improvements in the mobility of lawyers between the two countries through the ongoing FTA negotiations. The mission resulted in the establishment of the China Working Group mentioned above. The Department also participated in a subsequent Law Council of Australia delegation to China to build profession-to-profession linkages.

The Department contributed to the strengthening of Australia’s links with Indonesia in the law and justice area. It provided guidance and assistance in implementing a Guest-of-Government visit to Australia in October 2006 by Dr Hamid Awaluddin, the Indonesian Minister for Law and Human Rights, including facilitating a useful meeting for the minister with the president of the Law Council of Australia. It also partially funded a two month course at the International Institute for the Unification of Private Law (UNIDROIT) in Rome for an an official of the ministry.

A pilot project was finalised to improve the quality of statistics on the export of legal services. Preliminary results indicate legal services exports are more extensive than suggested in other comparable surveys. On ILSAC’s recommendation and with the Attorney-General’s support, this survey will be extended to cover exports for the 2006–07 period. The results of the pilot project and future surveys will provide a valuable tool for developing export strategies for government and the private sector.

The Department was successful in gaining further recognition of Australian law degrees and legal qualifications overseas with the objective of encouraging overseas students to study law in Australia. The recognition by India of law degrees from five law schools (Australian National University, Bond University, Griffith University, Queensland University of Technology and the University of New South Wales) is a significant result. The Council of Australian Law Deans has sought assistance in progressing the applications of a further group of law schools. In another positive development and as a direct result of ongoing representations by the Division, the Government of Brunei has implemented legislation recognising Australian legal qualifications, paving the way for students from Brunei to study law in Australia as an avenue to gain admission to practise law in Brunei.

Challenges

An ongoing challenge was the need to ensure agencies continued to understand and comply with the Legal Services Directions and that the Australian Government’s policy interests in the use of legal services were protected. A variety of outreach activities were conducted, such as seminars, discussion groups and the publication of guidance notes.

To effect timely agreement between the parties on the National Legal Profession Model Bill, it has been necessary to accept some differences in legislation from one jurisdiction to another. The challenge was to minimise the variation and press for the maintenance of national consistency, as well as to continue to press for implementation to occur in all jurisdictions.

Working towards the integration of the Office of Film and Literature Classification into the Department raised a range of challenges that were considered and addressed by close cooperation and a number of joint working groups.

Outlook

To achieve Output 1.2—support for the Attorney-General as First Law Officer, to provide advice on constitutional policy, and to promote Australian legal services across government departments, agencies and internationally—we will maintain and improve effective outreach activities to stimulate the use of legal services within the parameters of the Legal Services Directions.

We will continue to build the ‘informed purchaser’ capability across the Department, by maintaining and enhancing the community of practice group as a forum to discuss legal services purchasing issues and to share knowledge.

We will continue to work cooperatively with all jurisdictions to ensure timely implementation of the National Legal Profession Model Bill in those States that have not yet adopted it, and to ensure any avoidable differences in legislation across jurisdictions are minimised or removed.

We will continue to promote the harmonisation of laws by supporting the Attorney-General and the Department in working with the States and Territories through the Standing Committee of Attorneys-General.

From 1 July 2007, the former Office of Film and Literature Classification will be absorbed into the Classification Operations Branch of the Division. The Department will ensure that this new Branch provides effective support to the Classification Board and the Classification Review Board, and that it works closely with the Classification Policy Branch of the Division so that the Australian Government continues to take a leading role in managing Australia’s classification policy and administration as part of the National Classification Scheme. We will provide for legislation and subordinate instruments to implement a number of classification policy initiatives, and will continue to engage with governments, industry and other stakeholders.

Work is expected to intensify in 2007–08 on several free trade agreement negotiations, including with Chile, China, Japan, Malaysia and ASEAN. We will work closely with ILSAC, legal professional bodies and DFAT to seek positive outcomes for the legal and related services sector.

The Personal Properties Securities Branch became a separate Division of the Department on 16 April 2007. It will report separately for the 2007–08 annual report. The new Division will prepare exposure draft legislation for the proposed PPS reforms. It will continue to develop a single national online register for personal property securities and will work with States and Territories for an intergovernmental agreement on personal property securities reform.

Our people

Achieving a just and secure society

Kathryn Reidy, Classification Operations Branch.

In February 2006, the Attorney-General announced that the Office of Film and Literature Classification (OFLC) was to be integrated into the Attorney-General’s Department.

‘The announcement was a big surprise,’ Kathryn Reidy, Manager, Education and Communications at the OFLC said. ‘We had always worked closely with the Department on policy matters, so in many ways, the change made sense. We just hadn’t expected to actually join our colleagues as Department employees!’

The decision was in keeping with government policy to reduce the number of government agencies and to return policy functions to government departments.

The integration process, which was jointly managed by the Department and the OFLC executive, in consultation with section managers, was completed on 1 July 2007.

A major task, it involved moving the OFLC’s policy and administrative functions that had been managed by the Sydney office into the Classification, Legal Services and Native Title Division.

The policy function moved to Canberra to become the Classification Policy Branch and the administrative functions remained in Sydney as the Classification Operations Branch to provide secretariat support for the Classification Board and the Classification Review Board.

Canberra and Sydney-based staff worked together to create a new web site, <www.classification.gov.au> that provides information to the film, computer games and publications industries about applications for classifications. They also developed classification policy pages on the <www.ag.gov.au> web site.

‘From my perspective as a manager, it’s exciting to be part of a larger agency. We still get to do the classification work we love, but we also have new opportunities,’ Kathryn said. ‘Most importantly, we now have a vision of our future as part of the Department.’

Performance indicators

(Quantitative and qualitative)

Output 1.2

Support for the Attorney-General as First Law Officer,
advice on constitutional policy, and promotion of Australian legal services internationally

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department’s annual workload survey and are an aggregated figure over four separate one week periods—two from a parliamentary sitting week and two from non-sitting periods. This figure is the total for the Classification, Legal Services and Native Title Division.

Our People

Achieving a just and secure society

Elena Down, Disability Discrimination, Human Rights Branch.

When Australia’s Ambassador to the United Nations in New York signed the Convention on the Rights of Persons with Disabilities in March 2007, it was the culmination of five years of dedicated work by officers from the Attorney- General’s Department.

The Convention is the first major human rights treaty of the 21st century and the first of its kind specifically dedicated to protecting people with disabilities.

For Elena Down, a Senior Legal Officer in the Human Rights Branch, the Convention was of personal significance. In the past, Elena has volunteered in developing countries, working with deaf people.

‘While I was volunteering, I discovered how important it is to help people with disabilities to broaden their horizons, challenge their conceptions of what they can do and empower them to shape their lives,’ Elena said.

‘The Convention is about providing frameworks to enable people with a disability to pursue these goals.’

While developing the Convention and during the processes leading to signature, the team developed close partnerships with colleagues in the Department of Families, Community Services and Indigenous Affairs and the Department of Foreign Affairs and Trade, with officials on delegations from other countries, and with Australian non-government organisations.

Matt Minogue, Assistant Secretary, Human Rights Branch, who led three Australian delegations, noted how important developing relationships with stakeholders was to the Branch.

‘I know that our team, led by Kerri-Ann Smith, Principal Legal Officer, was very conscious that our policy work needed to be shaped by the real experiences of people living with a disability.’

‘In partnership with local NGOs, nationwide consultations were undertaken with the disability sector. This meant that our delegations to the United Nations were better informed and could credibly represent the needs of people with a disability,’ he said.

Australian delegations attended all eight United Nations Ad Hoc Committee sessions to consider the Convention. The delegations included Government and NGO delegates, including people with disabilities.

‘I was honoured to be part of the Australian delegation and contribute to the finalisation of the Convention text,’ delegate Kelisiana Thynne from the Office of International Law said.

‘It was a privilege to work alongside experienced professionals who brought a personal perspective about the challenges of living with a disability.’

Matt Minogue noted that it was not uncommon for other delegations to seek the views of Australia, and that the high level of cooperation between Australia’s Government and non-government delegates impressed many of the other delegations.

Although the Convention has been signed, there is still more work ahead for staff from the Human Rights Branch and the Office of International Law, as they assist the Government consider the ratification process.

‘It has been an honour to work with such a great team of people on this project,’ Elena said.

Output 1.3

Legal services and policy advice on information law and human rights

Summary

Output 1.3 is the responsibility of the Information Law and Human Rights Division. Advice provided under this output covered privacy, freedom of information, parliamentary privilege, defamation, electronic commerce, copyright, and domestic human rights policy and obligations. Major work undertaken in the year included major amendments to copyright law to keep pace with technological change, as well as changes to privacy laws to enable information exchange in the event of an emergency or disaster. The year also saw Australia sign the UN Convention on the Rights of Persons with Disabilities and accede to the Internet treaties of the World Intellectual Property Organization. The Division also completed the update of the guidelines on the operation of the Freedom of Information Act 1982. There was extensive consultation and collaboration with other departments on a large number of matters, including the Department of Human Services Access Card, with very positive feedback given by other government agencies on the Department’s input.

Major achievements

Information law

Amendments to the Privacy Act

In its 2005–06 annual report, the Department indicated that the Government planned to introduce amendments to the Privacy Act 1988 in 2006–07 to improve information exchange in an emergency or disaster situation. The result was the Privacy Legislation Amendment (Emergencies and Disasters) Act 2006, which came into effect on 6 December. The Act amended the Privacy Act to provide a clearer and more certain framework for the collection, use and disclosure of personal information about people involved in an emergency or disaster. The amendments put beyond doubt that the Privacy Act allows the exchange of essential information in an emergency.

The Privacy Legislation Amendment Act 2006 came into effect on 4 September 2006. It amends the National Health Act 1953 and the Privacy Act to deal with the collection and handling of sensitive genetic health information.

Core stakeholders in government, the private sector (in particular the travel industry and banks) and major non-government organisations involved in disaster response were consulted in the development of the amending legislation. The result reflected broad agreement among these stakeholders.

Freedom of information

The Department reported in 2005–06 that it would continue with the project of progressively updating guidelines on the operation of the Freedom of Information Act 1982. This was completed in 2006–07, and the new guidelines were published on the Department’s web site. The new guidelines start from the premise that FOI officers are reasonably familiar with the Act; the guidelines thus offer practical guidance in plain English and avoid the detailed legal interpretation of the superseded memorandums. However, because the exemptions in the Act have been subject to extensive legal argument in the Administrative Appeals Tribunal and the Courts, the guide addresses these with the necessary legal detail.

APEC

The Division is also responsible for international privacy and electronic commerce issues, participates in the APEC Data Privacy Sub-Group, for which it provides the Chair. Major highlights for this year were the successful completion of two seminars and productive Sub-Group meetings, as measured by progress in the development of a system for cross-border privacy rules and agreement on forward work agenda for 2008.

Access card

In 2006–07, the Department actively contributed to legal and policy working groups established by the Department of Human Services (DHS) to develop the access card legislation. The Department received positive feedback from DHS on an ‘excellent working relationship’ over the card with the Information Law and Human Rights Division, the Criminal Justice Division (particularly the Criminal Law Branch and the Identity Security Branch) and the administrative law advisers within the Civil Justice Division. This feedback is recorded in the Performance indicators at the end of this report section.

Other privacy issues

The Department worked with the Department of Employment and Workplace Relations (DEWR) on workplace privacy issues, including whether there was a need for further measures to enhance the privacy of employee records. A working party of the Standing Committee of Attorneys-General (SCAG) considered options for improving the consistency of privacy regulation including issues of workplace privacy. The working party prepared a discussion paper outlining potential options for workplace privacy regulation. This paper was circulated to key employer and employee organisations and other key stakeholders. In order to ensure consistency between the SCAG review of workplace privacy and the Australian Law Reform Commission (ALRC) privacy review, the ALRC was consulted on the SCAG discussion paper.

The Department also continued to participate in the National Code of Practice for CCTV Systems working group to monitor application of the code and examine legal and procedural issues that require further consideration. The Division also participates in the Organisation for Economic Cooperation and Development (OECD) Working Party on Information Security and Privacy.

Copyright

Copyright Amendment Act 2006

The pace of technological change continued to be a challenge for copyright law and policy. The ease with which people can infringe copyright in the online environment required consideration at many levels in order to develop appropriate responses. The findings of a number of reviews informed the Government and led to the Copyright Amendment Act 2006. The Act includes a range of significant reforms to strengthen copyright owners’ rights and provide more certainty for users in the digital environment. Consumers can now copy some copyright material, such as music, into other formats in some circumstances without breaching the law. Innovative exceptions allow for the use of copyright material for socially useful purposes, such as use by educational institutions, libraries and people with disability. The laws also ensure that copyright owners can better protect their legitimate rights and make their material securely available online in new and different ways, through the use of technological protection measures. New enforcement measures, including on-the-spot fines and proceeds of crime remedies, target copyright piracy at all levels.

The amendments implemented government decisions arising from several copyright law reviews finalised in 2005–06, obligations under the Australia–US Free Trade Agreement, and other policy initiatives. The Act was the result of effective consultation with copyright stakeholders, other government departments, and scrutiny by two parliamentary committees.

The Copyright Amendment Act also amended the jurisdiction of the Copyright Tribunal of Australia to expand the range of issues that can be referred to the Tribunal. The Tribunal now has broad jurisdiction over all voluntary licences that are offered by a collecting society and the Tribunal may have regard to guidelines on licences that will be issued by the Australian Competition and Consumer Commission The Tribunal is also able to refer the parties to any proceeding before it to alternative dispute resolution.

Intellectual property

In January 2007, IP Australia and the Department sponsored the APEC IP Trading Ideas Symposium on the future of intellectual property (IP) in the Asia–Pacific. This successful event drew together influential IP managers, practitioners and policy makers from across the globe and featured speakers from the leading and emerging IP offices in the APEC region and beyond, and the World Intellectual Property Organization.

In a fitting celebration of World Intellectual Property Day on 26 April 2007, Australia deposited its instruments of accession to the World Intellectual Property Organization (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty. These treaties represent an important advance in improving copyright standards to meet the challenges posed by the digital environment. Both treaties will come into force for Australia on 26 July 2007.

In September 2006, a delegation from the National Copyright Administration of China met with the Attorney-General, relevant government agencies, copyright collecting societies, copyright industry groups, and publishers.

Connected government

The Copyright Law Branch continued to work closely with relevant operational service and policy agencies—including IP Australia, the Australian Federal Police, Australian Customs, the Department of Foreign Affairs and Trade, the Commonwealth Director of Public Prosecutions, and the Australian Crime Commission—on the Interdepartmental Committee (IDC) on IP Enforcement. The IDC developed a range of recommendations for the Government to consider to address counterfeiting and piracy at a domestic level.

On 11 May 2007, the Attorney-General announced a policy for management of IP by Australian Government agencies. The Statement of IP Principles applies to all government agencies covered by the Financial Management and Accountability Act 1997. Agencies are required to comply with its requirements by 1 July 2008.

Screenrights and the Australian Government (represented by the Department) agreed in 2006–07 to provide equitable remuneration to copyright holders represented by Screenrights for copies of audiovisual material made for the services of the Commonwealth. Screenrights is a declared collecting society for the use of audio-visual material under section 182C of the Copyright Act 1968. Its members include filmmakers, writers, broadcasters, distributors and other copyright owners. There was extensive consultation with departments and agencies on the terms of the agreement.

In collaboration with the Department of Foreign Affairs and Trade (DFAT), the Copyright Law Branch made a very strong contribution to negotiations on intellectual property provisions in the ASEAN, China and Malaysia free trade agreements. DFAT’s satisfaction with advice provided on a range of technical IP issues is noted in the Perfomance indicators table below. The Office of Trade Negotiations in DFAT recorded its particular satisfaction with the legal and policy advice provided on the implementation of technological protections measures in relation to the Australia–US Free Trade Agreement and on intellectual property issues in general.

Copyright administration

Managing Australian Government copyright in published text-based materials, the Commonwealth Copyright Administration (CCA) responded to about 1,800 written requests and inquiries to reproduce copyright material in 2006–07. Sixty-three per cent of requests were answered in one day, and 80 per cent within one week. The CCA also responded to several hundred inquiries from other government agencies concerning issues related to copyright management.

Human rights

For people with disability

On 30 March 2007, Australia—represented by His Excellency, the Hon. Robert Hill, Ambassador and Permanent Representative to the United Nations—participated in a formal ceremony at the UN headquarters to sign the UN Convention on the Rights of Persons with Disabilities. This followed the adoption of the text of the Convention by the UN General Assembly in December 2006, the culmination of a five year process of consultation and negotiation by an ad hoc Committee established by the UN. Australian delegations attended all eight sessions of the ad hoc Committee from 2002 to 2006 and made significant contributions to the final text. The Convention marks a number of milestones: it is the first major human rights treaty of the 21st century; it is the first international treaty to focus specifically on the rights of people with disability; and it will help protect the rights of 650 million people with disability worldwide. The States and Territories were consulted on the text and their feedback and input influenced Australia’s negotiating position on the text. States and Territories will continue to play an ongoing role in contributing to processes that assist the Australian Government’s consideration of ratification of the Convention.

A Commonwealth, State and Territory interjurisdictional working group was formed in 2006–07 to discuss Disability Standards and the implementation of the Productivity Commission’s review of the Disability Discrimination Act 1992. The Department hosted a working group meeting in Canberra with State and Territory representatives on 25 September 2006.

There were also developments on a nationally consistent approach to authorising the sterilisation of minors with a decision making disability. In 2003, the Standing Committee of Attorneys-General (SCAG) agreed there should be a nationally consistent approach on authorisation procedures for lawful sterilisation of minors with a decision making disability. A State and Territory working group was established to work on this issue. The Australian Government has observer status. The Department represented the Australian Government on the working group and coordinated input from other Australian Government agencies. During this reporting period, the working group released an issues paper for consultation with selected stakeholders, along with draft model provisions that could be adopted by each State and Territory. Feedback from stakeholders was considered, and no policy decisions were taken in 2006–07.

Ratification of the Optional Protocol to the Convention on the Rights of the Child

Australia ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography on 8 January 2007. The Optional Protocol entered into force for Australia on 8 February 2007. It was developed to protect children from the worst forms of commercial exploitation. The protocol requires countries to criminalise serious violations of children’s rights. These violations include the transfer of organs from children for profit, child prostitution and child pornography, and the sale of a child for sexual exploitation and forced labour.

Attorney-General’s NGO Forum on Domestic Human Rights

The 15th Non-Governmental Organisation (NGO) Forum on Domestic Human Rights on 15 June 2007 was an important opportunity for these organisations to have direct dialogue with the Attorney-General and the Department on domestic human rights issues. A review was conducted of forum membership to ensure an even mix of NGOs were invited. The criteria for membership included that the organisation has ‘peak’ or ‘national’ status and works primarily to enhance the protection of human rights in Australia. Participants at the 2007 forum generally gave a positive evaluation of the event.

International visits

The Department was involved in a number of international human rights dialogues, programs and forums in 2006–07, as set out below.

Australia–Vietnam Human Rights Dialogue

The fifth dialogue was held from 16 to 18 April 2007 in Hanoi, Vietnam. Australia’s delegation included senior officials from DFAT, the Australian Agency for International Development (AusAID) and the Department, as well as the President of the Human Rights and Equal Opportunity Commission (HREOC). Vietnam was represented by senior officials of various government agencies. Discussions covered key issues such as religious freedom, the freedoms of expression and association, the death penalty, legal and judicial reforms and gender equality. The first year of implementation of the Vietnam Human Rights Technical Cooperation Program (administered by HREOC) was discussed in positive terms and agreement was reached on exploring new activities.

Australia–China Human Rights Dialogue

The 10th Australia–China Human Rights Dialogue was held on 25 July 2006 in Canberra. The Australian delegation, which included senior officials from the Department, raised a range of ongoing human rights concerns, including freedom of the press, religious freedom, the treatment of political activists and Falun Gong practitioners, and Tibet. The dialogue was also an opportunity for the two sides to agree on activities to be conducted in 2006–07 under the Human Rights Technical Cooperation Program administered by the Human Rights and Equal Opportunity Commission.

Australia–Laos Human Rights Dialogue

The inaugural Australia–Laos Human Rights Dialogue was held in Laos from 2 to 5 October 2006. Discussions covered the role of the legal sector in protecting human rights, women’s and children’s rights, and ethnic and religious diversity. The Australian delegation, comprising senior officials from the Attorney-General’s Department, DFAT, and HREOC, raised the Government’s concerns on some particular human rights issues and cases, and shared experiences with the Laotian delegation on issues of mutual interest. The dialogue included discussion of Laos’s Legal Sector Master Plan, which outlines legal reforms to assist Laos to become a ‘rule of law’ state by 2020. As part of the dialogue program, the Australian delegation was granted the first international access to a Vientiane detention facility under the current regime, and was able to tour various areas of the facility. The delegations discussed the possibility of future bilateral technical cooperation and further dialogues.

Muslim Community Reference Group

Following the Prime Minister’s summit with Muslim community leaders in August 2005, a National Action Plan to Build on Social Cohesion, Harmony and Security was developed with the assistance of the Muslim Community Reference Group. During the reporting period, the Department participated in the Improving Crisis Management Subgroup until its conclusion, as well as the interdepartmental committee responsible for implementation of the National Action Plan. Emergency Management Australia (EMA) and the Protective Security Coordination Centre (PSCC) were also involved in these initiatives, as mentioned in Outputs 2.3 and 2.4 respectively.

Education Standards promotion

The Department, together with the Department of Education, Science and Training, promoted public awareness of the Disability Standards for Education 2005. Copies of the Standards and accompanying Guidance Notes, together with a foreword by the Attorney-General and the Minister for Education, Science and Training, were sent to all Australian educational institutions, to peak disability groups and to State and Territory education departments.

Challenges

Information law

In January 2006, the Attorney-General gave a wide ranging reference to the Australian Law Reform Commission (ALRC) to consider the extent to which the Privacy Act and related laws continue to provide an effective framework for the protection of privacy in Australia. The Department has provided information and advice to the ALRC on its issues papers in October and December 2006 and also for the ALRC’s discussion paper scheduled to be released later in 2007. The ALRC is due to report to the Government by 31 March 2008.

Copyright

The ongoing challenge in the area of copyright is ensuring that the laws, policies and practices remain relevant in the face of emerging technologies. In particular, the growth of the Internet, digital works and online business models creates challenges in ensuring the protection of copyright in the digital environment.

Recent studies by international industry and non-industry bodies indicate increasing links between piracy and counterfeiting and organised crime networks. This poses a further challenge, that of developing appropriate and effective whole-of-government responses to IP crime, as well as responses that are consistent with those of Australia’s trading partners.

Another ongoing challenge in copyright enforcement is fostering cooperation between law enforcement bodies, government policy agencies and copyright industries. This includes ensuring adequate consultation on legislative reviews, and policy initiatives, as well as intelligence sharing and cooperation to achieve practical outcomes.

Human rights

The development of Disability Standards for Access to Premises continued throughout the year. Following the provision to the Government of further information from the Australian Building Codes Board on its proposal for technical provisions to form the basis of changes to the Building Code of Australia, the Department continues to meet regularly with the Department of Industry, Tourism and Resources to progress issues.

Outlook

Information law

In the year ahead, the Division will continue to provide information and advice to the Australian Law Reform Commission’s discussion paper on the review of privacy and will examine the recommendations of the final report when it is released in March 2008. It will provide further advice and continue to work with the Department of Human Services as the access card initiative is progressed towards implementation.

Copyright

A review will be conducted in 2007–08 of the format-shifting copyright exception for films and photographs to consider whether it be extended to audiovisual mate