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Programme 1.1: Civil justice and legal services

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The objective of this programme is to contribute to Outcome 1 by protecting and promoting the rule of law and building a safe, secure and resilient Australia.

Achievements contributing to programme deliverables

Reducing Australia's regulatory burden

The department developed three legislative measures in conjunction with the Office of Parliamentary Counsel for the government's first repeal day on 26 March 2014. Firstly, 13 bulk repeal Regulations were tabled in parliament which repealed 9,878 spent and redundant legislative instruments from across government. This was the largest bulk repeal ever undertaken by the Commonwealth. Secondly, the Amending Acts 1901 to 1969 Repeal Act 2014 repealed over 1,000 amending Acts made between 1901 and 1969 across all portfolios. Thirdly, the Statute Law Revision Act (No 1) 2014 corrected technical errors in legislation and repealed spent and redundant provisions and Acts. Together, these measures have made the statute book more accurate and more efficient for businesses, community organisations and individuals to use.

The department collaborated with the Office of Parliamentary Counsel, the Office of Best Practice Regulation and the Office of Deregulation in the Department of the Prime Minister and Cabinet to develop the Guide to Managing Sunsetting of Legislative Instruments. The guide was released in 2014 and assists agencies to manage the review and sunsetting (automatic ceasing) of legislative instruments.

The department also worked with the Office of Parliamentary Counsel to develop amendments to the Personal Property Securities Act 2009 seeking to reduce the regulatory burden on small and medium hire businesses as part of the government's repeal day agenda. The Personal Property Securities Amendment (Deregulatory Measures) Bill 2014 proposes the repeal of provisions deeming short term leases of certain goods to be security interests. This will reduce the number of short-term lease arrangements that may need to be registered on the Personal Property Securities Register.

Working internationally

Successful outcome in the Whaling case

The International Court of Justice delivered its judgment in the case concerning Whaling in the Antarctic (Australia v Japan: New Zealand intervening) on Monday, 31 March 2014. The delivery of the judgment was the culmination of a four-year, whole-of-government effort led by the department. The department worked with international and local legal counsel, the Department of Foreign Affairs and Trade and the Department of the Environment to prepare and present Australia's written and oral arguments.

In the case, which was initiated by Australia in May 2010, Australia argued that Japan was in breach of various provisions of the International Convention for the Regulation of Whaling (ICRW) with respect to its whaling programme in the Southern Ocean (known as JARPA II). The court found that Japan had not acted in conformity with various obligations under the ICRW prohibiting commercial whaling, namely the moratorium on commercial whaling, the factory ship moratorium and the Southern Ocean Sanctuary. The court ordered that Japan revoke any extant authorisation, permit or licence granted in relation to JARPA II, and refrain from granting any further permits under that programme. The court also stated in its judgment that it expects Japan to take account of its reasoning and conclusions when evaluating the possibility of granting any future permits under Article VIII of the ICRW.

Conclusion of the Korea and Japan free trade agreements

Australia concluded the Japan–Australia Economic Partnership Agreement (JAEPA) on 7 April 2014 and signed the Korea–Australia Free Trade Agreement (KAFTA) on 8 April 2014, delivering on the government's commitment to expedite conclusion of these free trade agreements (FTA).

JAEPA is a comprehensive FTA with Australia's second largest trading partner and the third-biggest economy in the world. It achieves market access gains for agricultural, manufacturing and resources exports, as well as professional services. JAEPA will also promote and protect two-way investment. KAFTA is a comprehensive FTA that substantially liberalises trade with Australia's third-largest export market and fourth-largest trading partner. It includes market access gains for Australian exporters of goods, especially agricultural products, creates new market openings for Australian service providers, and will encourage further two-way investment. These FTAs will protect our competitive position in the Japanese and Korean markets and will translate into more jobs and higher economic growth for Australia.

The negotiation of FTAs is led by the Department of Foreign Affairs and Trade. However, the department has been very involved in the negotiation of JAEPA and KAFTA. The main areas of focus were provision of international trade law advice across the FTAs, together with policy input on investment, dispute settlement, intellectual property, legal services market access, national security and arts-related issues.

Private international law

The Trans-Tasman Proceedings Act 2010 came into operation on 11 October 2013. This Act streamlines the processes for managing and resolving civil and criminal proceedings, where elements of the proceedings span Australia and New Zealand. The aim of this regime is to reduce the costs associated with litigation, improve efficiency, and minimise the existing barriers to enforcing judgments and regulatory sanctions between the two countries.

Improving the effectiveness of the justice system

National roll-out of self-representation services

The department implemented a national roll-out of a self-representation service in registries of the Federal Court and Federal Circuit Court across Australia. The service provides assistance to people who are unable to otherwise afford legal representation. It offers face-to-face and telephone legal information as well as advice on how best to present cases across all Australian jurisdictions.

The service assists people to understand their rights and responsibilities in a wide range of civil law areas such as employment law, bankruptcy law and discrimination. It helps people to understand the best course of action to resolve their disputes as well as the social and financial consequences of pursuing an action through the courts. Where appropriate, the service can also help a person to secure pro bono representation in court.

New intercountry adoption programme between Australia and South Africa

The department has progressed intercountry adoption reforms, as part of the Australian Government's response to the report of the Interdepartmental Committee on Intercountry Adoption. As a result of the department's work, the South Africa–Australia intercountry adoption programme was opened. The department also progressed amendments to the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998, to allow adoptions from Australia's non-Hague Convention partner countries to be treated in a manner equivalent to adoptions from partner countries. This means that families adopting through the Taiwan and South Korea programmes can have their adoptions recognised in Australia without needing to go to a state or territory court. The amendments also affect Ethiopian adoptions not yet finalised in Australia.

Legislation implementing marriage celebrant cost recovery arrangements

Legislation to implement cost recovery arrangements for the Marriage Celebrants Programme was passed by parliament on 27 March 2014 and commenced 1 July 2014. The Marriage (Celebrant Registration Charge) Act 2014 and Marriage Amendment (Celebrant Administration and Fees) Act 2014 enable the department to charge a registration fee for new celebrants and impose an annual registration charge for existing celebrants. All money collected as a result of the annual celebrant registration charge will be used to administer the programme.

Privacy

The department oversaw major reforms to enhance privacy protection for Australians. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 commenced on 12 March 2014 and created a single set of privacy principles, a more comprehensive credit reporting system and stronger enforcement powers. The reforms gave effect to recommendations from the Australian Law Reform Commission (ALRC) in its 2008 report For Your Information: Australian Privacy Law and Practice (ALRC Report 108).

Reform of the National Classification Scheme

The ALRC report on the National Classification Scheme (ALRC Report 118) included 57 recommendations for major structural reforms to the regulatory framework for classification. Commonwealth, state and territory classification ministers agreed to a first tranche of reforms based on a number of ALRC recommendations that can be implemented in the short-term. These reforms will be implemented by the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, which was passed by the House of Representatives on 25 March 2014.

In particular, the ALRC report included a recommendation for the use of classification tools to enable large volumes of content to be classified and thereby enhance the responsiveness and efficiency of the classification system. The Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill will allow classification tools to be approved by the minister. In the next reporting period, it is anticipated that the department will conduct a pilot of a global classification tool called the International Age Rating Coalition. State and territory ministers with classification responsibilities have agreed for this tool to be trialled once the legislation passes.

Legal protections against discrimination

New protections from discrimination on the basis of sexual orientation, gender identity and intersex status came into effect on 1 August 2013, through an amendment to the Sex Discrimination Act 1984. The amendments also expanded the term 'marital status' discrimination to 'marital or relationship status' discrimination to extend protections to same-sex de facto couples.

Copyright

The department played a key role in the negotiation and agreement of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled which was signed by Australia on 23 June 2014. This treaty will give the estimated 285 million people with vision impairment around the world access to more books published in accessible formats, including large print, braille or audio. Australia's signing is an important step toward realising the treaty's goals. The department will now assist government as it works towards ratification of the treaty.

Native title

The Attorney-General hosted a meeting of Commonwealth, state and territory native title ministers in Sydney on 11 October 2013. This was the first meeting of native title ministers since 2009 and laid the foundation for renewed engagement with the states and territories on significant native title policy issues. A further meeting of native title ministers was held on 15 August 2014, at which ministers discussed potential areas of reform to improve the operation of the native title system. Ministers also agreed to convene a further meeting within six months.

The status of applications and determinations in the native title system is continually examined by the department with a view to increasing the rate of claim resolution and easing system pressures. In the last decade, the number of applications has decreased by over a third. However, the number of consent determinations has continued to increase, indicating recent reforms are contributing to speedier, negotiated outcomes. For example, in the 2013–14 financial year, the Federal Court handed down 55 consent determinations, the highest number in any entire financial year-to-date. A significant emerging area of litigation involves applications for compensation by native title holders under the Native Title Act 1993 for acts that have impacted their rights and interests.

Defence Abuse Response Taskforce

The Defence Abuse Response Taskforce (the Taskforce) was established in late 2012 to assess and respond to individual cases of abuse in the Australian Defence Force that occurred prior to 11 April 2011. Although the Taskforce is administratively housed in the department, all funding for the Taskforce and its activities is provided by the Department of Defence. In 2013–14, the Taskforce achieved a number of significant milestones such as:

  • the finalisation of initial assessments for the majority of the 2,400 cases before the Taskforce
  • the engagement of a cohort of external facilitators for the Australia-wide roll-out of a restorative engagement programme
  • the finalisation of the formal tender process for the provision of the nation-wide defence abuse counselling programme
  • the continuing referral of matters to the relevant Commonwealth, state or territory police agencies for consideration and possible criminal investigation, as well as the referral of matters to the Chief of the Defence Force for possible administrative action
  • the tabling in parliament of six interim reports identifying the Taskforce's progress and statistics which may be found at the official Taskforce website (www.defenceabusetaskforce.gov.au).

On 18 June 2014, the final report on abuse at HMAS Leeuwin was tabled in parliament in conjunction with the Taskforce's sixth interim report. The Taskforce continues to work towards achieving the outcomes identified in its Terms of Reference, particularly the continuation of reparation payments to complainants under the Defence Abuse Reparation Scheme.

Evaluations and reviews

Independent review of the Federal Court, Family Court and
Federal Circuit Court of Australia

In January 2014, the department engaged KPMG to conduct an independent review of the Federal Court, Family Court and Federal Circuit Court of Australia, in consultation with the courts and other key stakeholders. The Attorney-General is carefully considering the findings from the review relating to funding and performance to ensure the efficient and effective delivery of court services, so that improved access to justice is provided to families and other litigants seeking to resolve their disputes.

Review of freedom of information laws

On 2 August 2013, a report was tabled on the operation of the Freedom of Information Act 1982 (FOI Act) and the Australian Information Act 2010 by former senior public servant and diplomat, Dr Allan Hawke AC. The report considered the extent to which the current regulatory regime continues to provide an effective framework for access to government information. In making recommendations, the report focused on preserving the right of access to government information and suggested changes and adjustments to the operation of FOI exemptions, fees and charges, and coverage of specific agencies.

ALRC Inquiry into Serious Invasions of Privacy in the Digital Era

On 12 June 2013, the former Attorney-General Mark Dreyfus QC issued terms of reference to the ALRC for an inquiry into Serious Invasions of Privacy in the Digital Era. Professor Barbara McDonald was appointed to lead the inquiry. The ALRC was asked to consider innovative ways the law can redress serious invasions of privacy, taking into account issues such as freedom of expression. The ALRC released an issues paper on 8 October 2013 and a discussion paper on 31 March 2014.

ALRC Inquiry into Native Title

On 3 August 2013, the ALRC commenced an inquiry into two areas of native title law: connection requirements and any barriers to justice imposed by the authorisation and joinder provisions of the Native Title Act 1993. Professor Lee Godden was appointed to lead the inquiry. The ALRC released an issues paper on 20 March 2014, and expects to release a discussion paper in September 2014. Consultations with key native title stakeholders will continue throughout the inquiry. The commission is due to report by March 2015.

Results against key performance indicators

Table 6: Results against key performance indicators, Programme 1.1

Key performance indicators
Results
Accurate, timely and high-quality legal and policy advice

2013–14: Achieved—trend information is not available as this is a new key performance indicator set out in the Portfolio Budget Statements

The department provided legal and policy advice to support the Attorney-General as First Law Officer in consideration of legal issues in areas including constitutional law, public international law and native title.

The department finalised three terms of reference for the ALRC:

  • review of Commonwealth laws for consistency with traditional rights and privileges
  • review of the Native Title Act
  • equal recognition before the law for people with disabilities.

The department supported the Attorney-General in his consideration of reforms to section 18C of the Racial Discrimination Act 1975.

The department finalised Australia's fifth report under the Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment.

The department appeared before the UN Committee on the Rights of Persons with Disabilities to respond to questions from the committee regarding Australia's compliance with the Convention on the Rights of Persons with Disabilities.

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 implemented several measures to strengthen privacy protections.

The Guide to Managing Sunsetting of Legislative Instruments was released to assist agencies. Legislative housekeeping measures have improved the accuracy, efficiency and usability of the Commonwealth statute book.

The department supported the Australian Government in making appointments to federal courts and tribunals. During the year, five judges were appointed to the Federal Court of Australia and one judge to the Federal Circuit Court of Australia. In addition, three appointments were made to the Administrative Appeals Tribunal and two to the Defence Force Discipline Appeal Tribunal.

The department worked collaboratively with federal courts and the Administrative Appeals Tribunal on administration issues, including accommodation and financial pressures. A review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, commissioned by the department, will help to inform the Australian Government's consideration of these issues.

Effective management of civil justice and legal services programmes

2013–14: Achieved—trend information is not available as this is a new key performance indicator set out in the Portfolio Budget Statements

The department's coordination of government legal services has assisted the effective management of Australia's law and justice framework.

The department has implemented cost recovery arrangements for the Marriage Celebrants Programme starting from 1 July 2014. These measures provide marriage celebrants with access to support and guidance which will help to ensure that legally-correct services are provided to marrying couples in Australia.

The department managed funding agreements under the Commonwealth Human Rights Education Programme, and funded a broad range of legal assistance services to assist disadvantaged Australians, including Indigenous peoples. The department continues to coordinate whole-of-government activities related to Indigenous constitutional recognition

The department launched its Register of Authorised Persons for Warrants and other Functions. This is a resource designed to assist the department, the federal courts and the Administrative Appeals Tribunal to access information about federal judges and Administrative Appeals Tribunal members who are authorised to perform functions in their personal capacity. It is also a tool for law enforcement agencies to locate authorised persons by court or Administrative Appeals Tribunal registry. The register delivers efficiencies by providing a consolidated online portal with authorisation records, warrant seeking processes and referral details.

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