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Annual Report 2007-08 Output 1.3

Legal services and policy advice on information law and human rights

Summary

The Classification, Human Rights and Copyright Division coordinated the development of legislation to remove discrimination against same-sex couples and their children found in a wide range of legislative provisions in social security, superannuation, taxation, family payments and other areas. The first Bill was introduced to Parliament in May 2008.

The Division also assisted the Government in fast tracking consideration of whether Australia should ratify the United Nations Convention on the Rights of Persons with Disabilities. This included consultation with the States, Territories, other Commonwealth departments, disability organisations, business and industry groups.

The Department is working to assist the Government in considering whether to ratify other international human rights instruments (including the Optional Protocol to the Disabilities Convention and the Optional Protocol to the Convention Against Torture). The Division is providing advice to the Government on its proposal to hold a national community consultation on human rights.

The Division has developed the Australian Government Intellectual Property Manual, which will assist agencies subject to the Financial Management and Accountability Act 1997 to better manage Commonwealth intellectual property consistent with the Government’s Statement of IP Principles.

Major achievements

Same-sex equality

The Department coordinated the Government’s consideration of options to remove discrimination of same-sex couples and their children in Commonwealth laws and programs (such as superannuation, taxation, social security and workplace laws). Many of these laws were identified in the Human Rights and Equal Opportunity Commission’s report Same-Sex: Same Entitlements, released in June 2007. The Department audited all Commonwealth laws, identifying approximately 100 laws that potentially discriminate against same-sex couples and their children. In consultation with other agencies, the Department is developing legislation to remove discriminatory provisions in areas such as superannuation, taxation, social security and Medicare. The first Bill, dealing with discrimination in Commonwealth superannuation and pension schemes, was introduced to Parliament on 28 May 2008. A second Bill, dealing with the remainder of the reforms, is expected to be introduced later in 2008.

United Nations Convention on the Rights of Persons with Disabilities

The Department worked to fast-track the Government’s consideration of whether to ratify the United Nations Convention on the Rights of Persons with Disabilities. The Convention, which was signed by Australia in March 2007, aims to remove barriers faced by people with disabilities and reinforces their civil, political, social and economic rights. We consulted with other Commonwealth departments, and the States and Territories to ensure that Australia’s laws and programs were consistent with the obligations under the Convention. The Department (together with FaHCSIA) also consulted disability organisations, industry and other stakeholders on whether Australia should ratify the Convention. Following those consultations, the two departments prepared a National Interest Analysis that recommended that Australia ratify the Convention. The National Interest Analysis was tabled in Parliament on 4 June 2008 and considered by the Joint Standing Committee on Treaties at a public hearing on 16 June 2008. On 19 June 2008, the Joint Standing Committee tabled an interim report which recommended that the Government ratify the Convention. As at 30 June 2008, the Government intended to recommend that Federal Executive Council agree to the ratification of the Convention. The Government has also indicated that it will consider whether to ratify the Optional Protocol to the Convention (which would allow people who have exhausted Australian remedies to lodge a complaint with a United Nations committee, which can investigate their complaint).

National Consultation on the Protection of Rights and Responsibilities in Australia

The Division has been working on the Government’s commitment to consult the Australian community to determine how to recognise and protect human rights and responsibilities. The consultation will provide an opportunity for Australians to have their say about how rights and responsibilities should be protected and promoted. The Division has been providing initial advice to the Government on options for holding the national consultation.

Optional Protocol to the Convention Against Torture

We consulted the States and Territories and relevant Australian Government departments on whether Australia should accede to the Optional Protocol to the Convention Against Torture. The Optional Protocol establishes a subcommittee of the Committee Against Torture that can visit places of detention within a country to ensure that torture and other forms of cruel, inhuman or degrading treatment do not occur. Following the completion of consultations, the Department will provide advice to the Government on whether to accede to the Optional Protocol.

Amendments to the Classification (Publications, Films and Computer Games) Act 1995

Amendments were made to the Classification (Publications, Films and Computer Games) Act 1995 (the Act). These changes included the introduction of specific provisions relating to terrorist material and were the first part of a package of reforms designed to replace the prohibition on advertising unclassified films and computer games with a new scheme that will permit advertising, subject to conditions. In addition, legislative amendments were made to enable a new industry-based authorised assessor scheme to be introduced for films that are compilations of episodes of a television series released for sale or hire.

Amendments were also made to the Act as part of the NTER. Part 10 of the Act was introduced to ban the possession and control of prohibited material in prescribed areas and ban the supply of prohibited material in and to those areas.

The new Classification (Waiver of Fees) Principles 2008 commenced on 8 May 2008. The Principles were drafted in consultation with the State and Territory censorship ministers, the Director of the Classification Board and the Convenor of the Classification Review Board.

Copyright law and intellectual property

The Division continued to work with relevant operational and policy agencies to develop a whole-of-government approach to policies and strategies for enforcing intellectual property rights. The Department chairs the Interdepartmental Committee on Intellectual Property Enforcement, which includes representatives from IP Australia, the Australian Federal Police, the Australian Customs Service, DFAT, the Commonwealth Director of Public Prosecutions, The Treasury, and the Department of Health and Ageing. The Department also hosted an intellectual property enforcement workshop in August 2007. It was an important opportunity for law enforcement and the IP industries to discuss ways to effectively enforce IP. The draft copyright infringement notice scheme guidelines were also released.

We continued to provide copyright expertise in Australia’s FTA negotiations with the People’s Republic of China, Malaysia, the Gulf Cooperation Council, Japan, Chile, ASEAN and New Zealand. Additionally, we provided expertise and led the negotiations of the proposed plurilateral anti-counterfeiting trade agreement.

The Division participated in the APEC Intellectual Property Experts Group meetings in 2007–08 and provided regular contributions to initiatives on copyright-related capacity building and public education initiatives.

On 26 July 2007, the World Intellectual Property Organization Copyright Treaty and the Performance and Phonograms Treaty came into force in Australia. The treaties protect copyright in the online environment.

The Intellectual Property Principles for Australian Government Agencies (Statement of IP Principles) and the Australian Government Intellectual Property Manual have addressed recommendations of the Australian National Audit Office, the Joint Committee of Public Accounts and Audit, and the Copyright Law Review Committee. The reports produced by each of those bodies recommended that a whole-of-government approach be developed to manage Commonwealth intellectual property. The IP Manual, which has now been finalised, is being used by agencies in their implementation of the Statement of IP Principles.

In 2007–08, the Commonwealth Copyright Administration (CCA) responded to approximately 1,905 written inquiries and requests about the reproduction of Commonwealth copyright material. The CCA also handled 720 phone calls from the public and government agencies on the use of Commonwealth copyright material and on issues concerning copyright management.

The Division reviewed two exceptions to the law on private copying of films and photographs. The requirement for this review was set out in the Copyright Amendment Act 2006 and related to ss 47J and 110AA, which permit photographs and films to be copied for personal use, under strict conditions. A primary purpose of the review was to examine whether the conditions could be broadened. The Attorney-General asked the Department to carry out the review and in January 2008 the Department published an issues paper requesting public submissions. The report of the review was provided to the Attorney-General on 31 March and was tabled in Parliament on 18 June. Its key recommendations were that no changes be made to ss 47J and 110AA at this time, but that relevant market developments be monitored.

Outlook

The Division will finalise legislation to remove laws that discriminate against same-sex couples and their children. We will also assist the Government in conducting a national community consultation on human rights and responsibilities. The Division will provide advice on whether the Government should accede to a range of international human rights instruments. The Division will also provide advice to the Government on how to improve the effectiveness and operation of disability discrimination laws and standards.

The ongoing challenge in the area of classification policy is ensuring that laws, policies and practices remain relevant in the face of rapid technological change. Technological developments in how media is delivered, for example at the cinema, online or over a mobile phone, pose unique challenges for the National Classification Scheme.

At their March 2008 meeting, censorship ministers agreed to consult broadly to seek community views on whether an R 18 classification should be introduced for computer games in Australia. A discussion paper is being developed and will be released for public consultation in August 2008.

The Division will assist in the appointment of members to the Classification Board, the Classification Review Board and a Convenor of the Classification Review Board.

The Division will remain engaged with international developments in the World Intellectual Property Organization, the World Trade Organization, APEC and in plurilateral and FTA negotiations on new standards and enforcement of intellectual property.

Outcomes of the Government’s Innovation Review and COAG’s competition agenda will influence copyright developments in the year ahead.

The first annual symposium on Crown copyright will be held in the year ahead to allow Australian jurisdictions to share information on current management practices for Crown copyright.

Performance indicators
Quantitative and qualitative

Output 1.3

Legal services and policy advice on information law and human rights

Activity

Performance indicator

Result

Providing policy advice on human rights, discrimination law, privacy, freedom of information, parliamentary privilege, defamation, copyright (domestic and international), and electronic commerce law issues Quantity   2006–07 2007–08
Submissions to ministers 224 172
Cabinet submissions 3 1
Ministerial correspondence* 1,441 1,563
Responses to questions on notice 5 19
Briefs 179 236
Speeches 18 10
Quality Advice to ministers provided within agreed timeframes Achieved

Periodic feedback indicates satisfaction with the timeliness of responses.
Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

Periodic feedback indicates ministers are satisfied with the advice received.
Advice provided to other agencies, including advising on the interpretation and implementation of domestic legislation Quantity   2006–07 2007–08
Items of legal/policy/operational advice 151 107
Quality Advice provided within agreed timelines Achieved

Agency feedback generally indicates a high level of satisfaction with the timeliness of responses.
  Quality Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Stakeholders indicated they are highly satisfied with the level of service provided.

A key stakeholder, DFAT, commented: ‘On specific subject areas under negotiation, task forces have appreciated the solid contributions made by the Attorney-General’s Department’s Copyright Law Branch’.

Referring to advice on human rights issues DFAT said: ‘Human Rights Branch responds quickly, professionally and thoroughly to requests for input or feedback.’

Another stakeholder, DBCDE, noted: ‘Advice was timely and generally appropriate to portfolio responsibilities’, when referring to policy advice about censorship, classification of content and implementation of the Communications Legislation Amendment (Content Services) Act 2007.

FaHCSIA indicated its satisfaction with the advice given on the racial discrimination aspects of the NTER.
Developing international instruments and engagement in international dialogue, in particular through involvement in negotiations in international forums Quantity   2006–07 2007–08

Number of meetings and negotiations attended, including consultations with Australian Government agencies:

– Negotiations 16 30
– Consultations (approximate number) 70 12
Scrutiny of Bills and assistance to other agencies Quantity   2006–07 2007–08
Bills scrutinised 235 40
Quality Response to agencies within agreed time frame Achieved

Agency feedback generally indicates a high level of satisfaction with the timeliness of responses.

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

† Briefs include papers on current issues, possible parliamentary questions (new and updated) and meeting briefs.

‡ The number of advices provided by output have been derived from the Department’s annual workload survey and represent a snapshot obtained by aggregating data from four separate one-week periods—two from parliamentary sitting periods and two from non-sitting periods.


Our people

Removing discrimination against same-sex couples

Peter Thomson (left) and John Southwell, Classification, Human Rights and Copyright Division.

Peter Thomson (left) and John Southwell,
Classification, Human Rights and
Copyright Division.

Taking on the role of coordinating key policy reform which affects many Australians is no job for the faint-hearted. Just ask the Human Rights Branch.

Peter Thomson and John Southwell are part of a small team called the Age and Sex Discrimination Section. Along with other members of the team they coordinated the implementation of the Government’s legislation that removes discrimination against same-sex couples in areas of tax, superannuation, social security, health, aged care, veterans’ entitlements, workers compensation, employment entitlements and other areas of Commonwealth administration.

They both share a keen interest in human rights and social justice issues. So in undertaking this policy reform, they are deft hands for the job.

Pursuing this reform agenda since the November 2007 election has demanded extensive consultation with almost every government department and many people within the Attorney-General’s Department. The team coordinated a whole of government audit of Commonwealth legislation to identify discriminatory terms, developed two Bills to amend Commonwealth Acts, and coordinated
the associated budget measures for
the reforms.

John, Senior Legal Officer, explained that this project has been both challenging and rewarding in allowing them to provide advice to Government on the removal of differential treatment of a group which has been discriminated against in Commonwealth laws and programs.

‘The measures contribute a great deal to the Department’s mission to achieve a just and secure society, as well provide policy advice to the Government on human rights issues,’ John said.

Peter, Principal Legal Officer, said the changes also build on the work undertaken by the Human Rights and Equal Opportunity Commission as part of its national inquiry and report into discrimination against people in same-sex relationships in the area of financial and work-related benefits, and entitlements under Commonwealth laws.