​​​​​​​
You are here: Skip breadcrumbAttorney-General's Department >> Publications >> Annual reports >> Annual report 2009-10 >> Annual Report 2009-10 Performance Reports - Outcome 1

Annual Report 2009-10 Performance Reports - Outcome 1

Previous Page Next Page 


Chapter 6 Outcome 1 - An equitable and accessible system of federal civil justice

Overview

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, family law and related services for separated families, legal assistance, international law, information law, Indigenous justice, native title and personal property securities law.

The Department provides specialist support for the Attorney-General as First Law Officer, promotes Australian legal services internationally, drafts and publishes legislative materials, and provides advice on international law.

In working to achieve this outcome, the Department is also responsible for administering payments for the provision of legal aid, family relationships services, Indigenous law and justice programs, community legal services and financial assistance towards legal costs and related expenses. The Department works in cooperation and consultation with many other organisations. These include government agencies (Australian, State and Territory), advisory bodies, taskforces, professional associations and community interest groups.

During 2009–10, there was significant progress towards achieving Outcome 1 with the release of the Access to Justice Taskforce report A Strategic Framework for Access to Justice in the Federal Civil Justice System, the passage of the Access to Justice (Civil Litigation Reforms) Amendment Act 2009, progress towards a restructure of the federal courts system, initiatives undertaken to improve the family law’s response to family violence and child abuse, reforms to evidence laws, introduction of an industry based assessor scheme for the classification of films, and consultation on the issue of whether Australia should have an R18+ classification for computer games, which resulted in approximately 60,000 submissions.

The National Human Rights Consultation, the largest ever consultation on human rights issues in Australia, was successfully completed. Progress has been made on the development and implementation of Australia’s Human Rights Framework and the National Indigenous Law and Justice Framework. Reforms to the operation of the native title system were continued, to facilitate a more flexible and less technical approach to the resolution of claims and improved, sustainable outcomes for Indigenous communities. The National Partnership Agreement on Legal Assistance Services came into effect from 1 July 2011.

As part of supporting the Government’s commitment to a stronger Australia through a seamless national economy, the Personal Property Securities Act 2009 and the Personal Property Securities (Consequential Amendments) Act 2009received Royal Assent on 14 December 2009. The Department continued to work with States and Territories to develop referral legislation and consequential legislative amendments required to underpin the personal property securities legislative reform.

In addition, the Secretary chairs the National Legal Profession Reform Taskforce tasked by the Council of Australian Governments (COAG) with developing nationally uniform legal profession regulation. In April 2010, the taskforce presented to COAG a proposed package of reforms.

In promoting Australia’s legal services internationally, the Department worked with the International Legal Services Advisory Council (ILSAC) and other public and private sector stakeholders in implementing several initiatives that benefit Australia’s legal and related services sector in countries of priority interest, including China, India, Japan, and the United States.

The Department participated in negotiations for an Anti-Counterfeiting Trade Agreement to address commercial scale trade in counterfeit and pirated products through better global intellectual property enforcement and sought to advance discussions in the World Intellectual Property Organization on international standards to improve access to copyright materials for blind and visually impaired people.

In the areas of specialist support to the Attorney-General as First Law Officer and strengthening links across government in relation to legal services, key achievements in 2009–10 include the completion of the review of Commonwealth Legal Services Procurement (the Blunn Krieger review) focusing on procurement and informed purchasing, the commencement of a major review and rewrite of the Legal Services Directions 2005, and the appointment of a significant issues advisor within the Department to provide enhanced support to significant Commonwealth legal issues.

We anticipate that the priorities and goals to be pursued in 2010–11 will include improving cohesion of our federal civil justice system and government decision making and improving access to justice consistent with the Commonwealth’s Strategic Framework for Access to Justice; designing national and integrated systems focused on prevention and early intervention through improved access to information and better coordination; developing civil dispute legislation requiring litigants to take genuine steps to resolve disputes and in particular prior to commencing proceedings in the Federal Court; enhancing family dispute resolution by offering parties a broader range of options, conciliation and arbitration; providing services and enhance legislative framework to address the needs of victims of family violence and its impact on family breakdown; developing enhanced mechanisms to support families that break down, in particular children; putting in place practical measures to improve the clarity and accessibility of Commonwealth laws; and working to improve and modernise Commonwealth law.

The Department will progress the implementation of Australia’s Human Rights Framework, including the consolidation of Commonwealth anti-discrimination laws, education programs and the National Action Plan. Implementation of the National Partnership Agreement on Legal Assistance Services will be progressed, and a new performance management framework for Community Legal Centres will be introduced. New guidelines will be developed for the Indigenous Legal Aid and Policy Reform Program, and the regionalisation of Family Violence Prevention Legal Services program service providers will be encouraged. The consultation, development and implementation of reforms to promote leading practice in the governance of native title payments and agreement making will be progressed. An Indigenous Safe Communities Strategy will also be negotiated with the States and Territories for COAG endorsement.

The reformed personal property securities system, including a national register, is scheduled to commence in May 2011.

The three-month consultation period on proposals for a national legal profession will close on 13 August 2010. The taskforce is to report to COAG with final proposals by the end of 2010.

The Department will continue to work with ILSAC and take a coordinated public-private sector approach in advancing Australia’s legal and related services interest internationally, including promoting Australia as a centre for resolving international commercial disputes.

The Department will complete additional work requested by the Standing Committee of Attorneys-General on the issue of an R18+ classification category for computer games. Other key aspects of the National Classification Scheme will be reviewed to ensure effectiveness.

The Department will examine potential reforms to support evolving business models to increase legitimate access to copyright material over the internet and implement the Government 2.0 recommendations relating to copyright, which will result in greater community access to materials.

Performance reports for each program contributing to Outcome 1 are presented in this chapter.

Resource summary

Table 4: Resource summary, Outcome 1—An equitable and accessible system of federal civil justice

  Budget*
2009–10
$’000
(a)
Actual expenses
2009–10
$’000
(b)
Variation
$’000
(a)–(b)
Program 1.1: Access to justice and social inclusion      
Component 1.1.1 Access to justice      
Annual departmental expenses 24,504 25,479 –976
Revenue from independent resources (s31): 333 378 –45
Expenses not requiring appropriation in the Budget year 43 38 5
Administered items:      
Family Relationship Services Program 165,809 162,647 3,162
Family Court of Western Australia 14,346 14,346
Payments for services under the Family Law Act 1975 and the Child Support Scheme 1,890 1,409 481
Payments to Law Courts Limited for contributions to operating and capital expenses 34,245 34,246 –1
Payments for membership of international bodies 465 508 –43
Payments for grants to Australian organisations 1,569 1,563 6
       
Special appropriations:      
Judges’ Pensions Act 1968 32,800 27,651 5,149
Federal Magistrates Act 1999 415 –415
       
Component 1.1.2 Social inclusion      
Annual departmental expenses 27,293 29,457 –2,164
Revenue from independent resources (s31): 174 284 –110
Expenses not requiring appropriation in the Budget year 37 43 –6
Administered items:      
Payment for provision of legal aid for Indigenous Australians 55,091 55,091
Payments for provision of law and justice advocacy services for Indigenous Australians 4,402 2,440 1,962
Payments for provision of prevention, diversion, rehabilitation and restorative justice services for Indigenous Australians 12,748 12,748
Payments for provision of family violence prevention legal services for Indigenous Australians 20,149 20,143 6
Payments for Indigenous interpreter services in the Northern Territory 1,219 1,219
Payments for the provision of legal aid—Legal Aid Commissions 12,486 10,066 2,420
Payments for the provision of community legal services 30,547 30,547
Financial assistance towards legal costs and related expenses 5,579 5,579
National consultation into human rights and responsibilities 495 495
Northern Territory law and order measures 21,923 21,922 2
       
Total for Program 1.1 468,146 458,712 9,434
       
Program 1.2: Legal Services      
Component 1.2.1 Civil law      
Annual departmental expenses 14,852 16,480 –1,628
Revenue from independent resources (s31): 552 285 268
Expenses not requiring appropriation in the Budget year 15 16 –1
Administered items:      
Personal property securities—public awareness campaign 88 87 1
Clark inquiry into the case of Dr Mohamed Haneef 2 –2
       
Special appropriations:      
Law Officers Act 1964 s16(13)—former Solicitors-General 450 163 287
       
Component 1.2.2 Classification and copyright      
Annual departmental expenses 13,610 14,584 –973
Revenue from independent resources (s31): 812 1,614 –802
Expenses not requiring appropriation in the Budget year 17 18 –1
Component 1.2.3 Legislative drafting and publishing      
Annual departmental expenses 13,446 13,026 414
Revenue from independent resources (s31): 3,531 4,279 –748
Expenses not requiring appropriation in the Budget year 23 23
Administered items:      
Publications of Acts and select legislative instruments 1,495 1,500 –5
       
Component 1.2.4 International law      
Annual departmental expenses 6,759 7,265 –505
Revenue from independent resources (s31): 240 345 –105
Expenses not requiring appropriation in the Budget year 11 11
       
Component 1.2.5 Constitutional policy      
Annual departmental expenses 1,083 1,190 –106
Revenue from independent resources (s31): –3
Expenses not requiring appropriation in the Budget year 2 2
       
Total for Program 1.2 56,995 60,903 –3,908

Note:

* Full year budget, including any subsequent adjustment made to the 2009–10 Budget.

Program 1.1: Access to justice and social inclusion

Summary

The major focus in 2009–10 for Program 1.1 was access to justice and social inclusion, including:

  • implementation and promotion of the strategic framework for access to justice
  • negotiation of a national partnership with the States and Territories for legal assistance services to help Australians, including Indigenous Australians, resolve legal problems and disputes before they escalate and lead to entrenched disadvantage
    • the Australian Government provided over $20 million in one-off additional funding for legal assistance programs administered by the Department to assist with demand pressures in 2009–10, and in May 2010 the 2010–11 Budget provided a further $154 million over four years to improve access to justice in the community
  • legislation to reform the civil dispute resolution process by encouraging resolution outside of the courts, and legislation to reduce the cost and complexity of litigation
  • launch of the Access to Justice website to provide seamless access to local information about legal assistance and related services
  • development and implementation of Australia’s Human Rights Framework
  • development of the National Indigenous Law and Justice Framework, which forms a national response to the many issues that drive Indigenous disadvantage in law and justice, and
  • reforms to the operation of the native title system to facilitate a more flexible and less technical approach to resolution of claims and produce positive and sustainable outcomes for Indigenous communities.

Major achievements

Access to justice framework

In September 2009, the Access to Justice Taskforce delivered its report A Strategic Framework for Access to Justice in the Federal Civil Justice System. The report’s central recommendation was the Strategic Framework for Access to Justice to guide future decisions about the justice system. The Government adopted this recommendation in September 2009. The framework emphasises providing better and more accessible sources of information and assistance at an earlier stage to meet legal needs, better use of non-legal gateways and increased coordination. The Department undertook national consultation on the framework in October 2009, and State and Territory Attorneys-General agreed to access to justice principles in November 2009. The Department will continue using the framework to develop initiatives to improve access to justice for all Australians in consultation with stakeholders.

As part of the Department’s focus on access to justice in 2009–10, we developed legislation to encourage early resolution of disputes and to reduce the cost and complexity of litigation. The Access to Justice (Civil Litigation Reforms) Amendment Act 2009 was passed in November 2009. The Act improves access to justice by reinforcing case management procedures in the Federal Court, establishing efficient appeals pathways, and clarifying the role of the heads of court and broadening their responsibilities to ensure effective discharge of court business. The Attorney-General introduced the Civil Dispute Resolution Bill 2010 into Parliament on 16 June 2010. The Bill improves access to justice by encouraging parties to take genuine steps to resolve disputes before starting court proceedings, thereby promoting early resolution of matters and narrowing the issues in dispute before the courts.

On 17 May 2010, the Attorney-General launched the Access to Justice website, <www.accesstojustice.gov.au>. The site provides members of the public and service providers with accessible information about the location and range of legal information and related service providers in their area. The Access to Justice Taskforce Report identified that early access to information about how to respond to legal issues is vital to improving access to justice. The website delivers on the Australian Government’s commitment to improve access to justice and social inclusion.

Dispute resolution

In May 2010, the Attorney-General announced new measures to help Australian families adjust to separation and divorce through enhanced family dispute resolution. A key element of this is extending the requirement to participate in family dispute resolution before starting legal proceedings to property and spousal maintenance matters. This would mean that court hearings would be reserved for those cases that are urgent, complex or intractable. Exceptions to family dispute resolution would apply across-the-board to ensure that children and families are safe and protected from harm.

The Department’s Alternative Dispute Resolution Policy Section provides support to the National Alternative Dispute Resolution Advisory Council (NADRAC). NADRAC is an independent body that provides policy advice to the Attorney-General on developing alternative dispute resolution, and promoting the use and raising the profile of alternative dispute resolution. In November 2009, NADRAC released its report, The Resolve to Resolve—Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, to the Attorney-General. This report looked at removing barriers to, and creating incentives for, using alternative dispute resolution in the federal civil justice system. The Department is currently working on implementing a number of NADRAC’s recommendations, including amendments to the Legal Services Directions to further encourage government agencies to improve use of alternative dispute resolution.

Family law and domestic violence

From 1 July 2009, administration of the Family Relationship Services Program was transferred to the Department of Families, Housing, Community Services and Indigenous Affairs. The Department retains policy responsibility for the Family Relationship Services Program.

In July 2009, the Attorney-General announced a range of initiatives designed to improve the family law system’s response to family violence. These included a national framework to support a minimum level of screening and assessment for family violence across the broader family law system and a pilot of legally assisted family dispute resolution in situations of family violence.

The National Council presented its report, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–21, to the Australian Government in April 2009. Since then the Department has been working closely with the Department of Families, Housing, Community Services and Indigenous Affairs, as well as the States and Territories, to develop a national plan to reduce violence against women and their children, and progress a range of initiatives announced as immediate actions by the Australian Government. This includes developing a multi-disciplinary training package to improve consistency in the handling of cases involving family violence, and to ensure professionals are properly equipped to work with families at risk. The package is complete and will be publicly released early in 2010–11.

Pilot programs between Family Relationship Centres and legal assistance services commenced in late 2009. These pilots provide support to separating families to facilitate greater collaboration between professionals in the family law system.

The Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 amended the Family Law Act 1975 to relax technical requirements for couples making binding financial agreements.

The new financial settlement regime for de facto couples, included in the Family Law  Act in 2008, was extended, by enactment of legislation in South Australia, to de facto couples in South Australia. The regime allows opposite-sex and same-sex de facto couples access to the federal family law courts on property settlement and maintenance matters upon relationship breakdown. The South Australian legislation will commence on 1 July 2010.

Family violence prevention legal services

Family Violence Prevention Legal Services (FVPLS) units provide legal assistance, referrals, counselling and other services to Indigenous Australians who experience family violence and sexual assault. Services are delivered to Indigenous people living in remote parts of Australia—northern New South Wales to the Top End to remote Northern Territory and Western Australia. The services deal with complex legal and social issues, which are often exacerbated by remoteness and isolation.

In May 2010, additional one-off funding of $0.760 million was provided to the FVPLS units to help them lodge victims’ compensation claims and increase awareness of services.

Community legal services

Community legal centres provide assistance in family law and domestic violence matters to the disadvantaged and those with special needs, in collaboration with other services including Family Relationship Centres.

On 30 June 2009, the Attorney-General announced funding of $3.6 million to pilot partnerships between Family Relationship Centres and legal assistance services. On 4 December 2009 the Attorney-General further announced the 60 successful partnerships (55 community legal centre partnerships and five legal aid commission partnerships). The trials commenced in December 2009 with an evaluation of the trials scheduled for 2010.

In January 2010, the Attorney-General announced the successful partnerships between universities and seven community legal centres to develop or expand partnerships providing clinical legal education opportunities for students of family law. Funding of $0.360 million was provided to seven community legal centres working with their university partners.

In May 2010, $1.56 million was allocated to women’s legal services and Indigenous women’s projects currently funded under the Commonwealth Community Legal Services Program to help in family violence and victims’ rights matters.

Marriage Celebrants Program

Changes to the Australian Government Marriage Celebrants Program were delivered to improve training and ongoing professional development. On 3 February 2010, a new minimum qualification for registration (the Certificate IV in Celebrancy or equivalent university qualification) came into effect. A tender to select training organisations to provide ongoing professional development for all Commonwealth-registered marriage celebrants was also completed.

During 2009–10, 2,435 new marriage celebrants were registered.

Intercountry adoption

The Department has been improving the integrity of Australia’s intercountry adoption programs by increasing our engagement and information sharing with international counterparts, developing policy to increase safeguards for Australia’s intercountry adoption programs, regularly reviewing our existing programs, and assessing potential new programs to ensure compliance with The Hague Convention on Intercountry Adoption.

Consistent with the Department’s promotion of ethical intercountry adoption, we sponsored a one-off day to discuss the abduction, sale and trafficking of children in the intercountry adoption context. This was held on the first day of the Special Commission on Intercountry Adoption in The Hague in June 2010.

The Department also drives various practical harmonisation projects to improve State and Territory delivery of intercountry adoption services, including better consistency in preparing parents for the challenges of adopting from abroad and improving the uniformity of documentation that States and Territories send to our overseas partners.

Accession to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

On 17 March 2010, Australia acceded to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded at The Hague on 15 November 1965. The Convention will streamline the process for serving court documents overseas, and help Australians enforce their legal rights in foreign jurisdictions more effectively. The Convention enters into force for Australia on 1 November 2010.

Implementation of the Trans-Tasman Treaty

The Department cooperated closely with New Zealand’s Ministry of Justice to implement the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008. Australia’s legislation to implement the treaty received Royal Assent on 15 April 2010, and companion legislation is currently before the New Zealand Parliament. The cooperative scheme established by the legislation will make trans-Tasman litigation simpler, cheaper and more efficient.

Human rights

Human Rights Framework

In April 2010, the Attorney-General released Australia’s Human Rights Framework. The Framework arose from the National Human Rights Consultation Report and contains practical measures the Australian Government will undertake to protect and promote human rights in Australia. The Framework focuses on:

  • reaffirming a commitment to our human rights obligations
  • highlighting the importance of human rights education
  • enhancing our domestic and international engagement on human rights issues
  • improving human rights protections including greater parliamentary scrutiny, and
  • achieving greater respect for human rights principles within the community.

The Department prepared the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, which the Attorney-General introduced into Parliament on 2 June 2010. The Bill establishes the Parliamentary Joint Committee on Human Rights and a requirement that statements of compatibility with human rights accompany new legislation and legislative instruments.

The Department developed the Guidelines for Australia’s Human Rights Framework—Education Grants program and has begun implementing other measures in the Framework, for which funding begins in 2010–11.

The first combined Government and Non-Government Human Rights Forum was held on 23 June 2010.

Disability standards

On 15 March 2010, the Attorney-General made the Disability (Access to Premises—Buildings) Standards 2010 (Premises Standards). The Premises Standards implement the legislative aspects of the Australian Government’s response to the recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs report, Access All Areas, which reported on draft premises standards in mid-2009 after wide public consultation.

The Premises Standards and the Australian Government response to the Committee’s report were tabled in Parliament on 15 March 2010. The Premises Standards are subject to disallowance pursuant to any motion of disallowance lodged in the Parliament within 15 sitting days. As at 30 June 2010, the 15-day period for lodging of a notice of disallowance had expired in the House of Representatives but not the Senate and no notices of motion of disallowance had been tabled.

The Premises Standards were first mooted in 2000. They are part of a wider scheme, led by the Australian Government, to provide improved, updated and, for the first time, nationally uniform rules for appropriate and dignified access to public buildings and offices for people with disability. State and Territory building laws are proposed to be aligned with the Premises Standards and those laws to commence operation on 1 May 2011.

As part of the new arrangements, regulation of disability access in public transport buildings has been included within the Premises Standards. In implementing this arrangement the Attorney-General tabled complementary amendments to the Disability Standards for Accessible Public Transport in Parliament on 15 March 2010.

The Premises Standards impose obligations on building certifiers, developers and managers to ensure compliance with those matters in the Premises Standards for which they are responsible, or will have control over.

The making of the Premises Standards is the outcome of the work of a large number of stakeholders, including people with disability, their representatives, a range of industries, the Australian Building Codes Board, key professional experts and government departments. The Department was responsible for advising the Attorney-General on the preparation of the Premises Standards and the Government’s response to the Access All Areas report. The Department has worked on these matters in collaboration with the Department of Innovation, Industry, Science and Research, which has Australian Government responsibility for building policy, and the Australian Building Codes Board.

Copies of the Premises Standards, the Explanatory Statement to the Premises Standards, the Regulation Impact Statement and related documents can be found at <http://ag.aglink.ag.gov.au>.

Optional Protocol to the United Nations Convention against Torture

On 19 May 2009, the Australian Government signed the Optional Protocol to the United Nations Convention against Torture (Optional Protocol) at United Nations (UN) Headquarters in New York. By signing the Optional Protocol, Australia is obliged, in accordance with general principles of treaty law, to refrain from acts that would defeat the object and purpose of the Optional Protocol. Australia will not be bound by the Optional Protocol obligations until it has been ratified through the usual treaty-making process, which requires preparation of a national interest analysis for tabling in Parliament and consideration by the Joint Standing Committee on Treaties.

Ratification would oblige Australia to give effect to the Optional Protocol obligations. This includes ensuring that all prisons and detention facilities are subject to the monitoring and reporting regimes under the Optional Protocol. A subcommittee of the UN Committee against Torture will conduct periodic visits to places of detention. Australia would also be required to establish an independent domestic mechanism responsible for conducting regular visits to places of detention and monitoring the treatment of persons in detention (known as the National Preventive Mechanism).

The Australian Government is working towards ratifying the Optional Protocol and the Department is currently undertaking consultation with relevant Australian Government agencies and with State and Territory governments on the necessary steps.

Sex Discrimination Act amendments

In June 2010, the Attorney-General introduced amendments to the Sex Discrimination Act 1984 in accordance with the Government’s response to the report of the Senate Standing Committee on Legal and Constitutional Affairs on the effectiveness of the Act in eliminating discrimination and promoting gender equality.

The Department prepared the Sex Discrimination Amendment Bill 2010, which will:

  • establish breastfeeding as a separate ground of discrimination
  • extend protection from discrimination on the ground of family responsibilities to both women and men in all areas of work
  • ensure that protections from sex discrimination apply equally to men and women, and
  • provide greater protection from sexual harassment for students and workers.

The Department is considering other recommendations from the Senate Committee’s report as part of its work to consolidate anti-discrimination legislation into a single comprehensive law under Australia’s Human Rights Framework.

Legal assistance

Community legal services

The Australian Government provided $30.547 million for the Commonwealth Community Legal Services Program in 2009–10, including additional one-off funding totalling $4.402 million.

The program provided funding to 128 services across Australia under service agreements expiring on 30 June 2010. The Department held consultations on a new service agreement for community legal centres, which comes into effect from 1 July 2010.

The 2010–11 Budget included additional funding for the Commonwealth Community Legal Services Program totalling $26.8 million over four years. This will be directed to continuing community legal centre partnerships with Family Relationship Centres; continuing family law focused Clinical Legal Education projects; continuing four family law focused Duty Lawyer Services; and enhancing access to legal services for people in the community needing assistance with consumer credit matters, family violence issues, matters most affecting older people, and for those experiencing, or at risk of, homelessness.

Legal aid

During 2009–10, the Department led negotiations between the Australian Government and the States and Territories for a National Partnership Agreement on Legal Assistance Services. Implementation of the Agreement will introduce significant reforms for future delivery of services across the legal assistance sector. Following discussions at the November 2009 meeting of the Standing Committee of Attorneys-General, ministers agreed to implement the new National Partnership Agreement from July 2010.

The Agreement will promote reform in legal assistance service delivery through:

  • earlier resolution of legal problems for disadvantaged Australians that, when appropriate, avoids the need for litigation
  • more appropriate targeting of legal assistance services to people who experience, or are at risk of experiencing, social exclusion
  • increased collaboration and cooperation between legal assistance providers themselves and with other service providers to ensure clients receive ‘joined up’ service provision to address legal and other problems, and
  • a strategic national response to critical challenges and pressures affecting the legal assistance sector.

The Agreement introduces changes to Australian Government legal aid funding policy to give legal aid commissions greater flexibility in how they allocate Australian Government funds to deliver legal aid services. The changes will mean that legal aid commissions can use Australian Government legal aid funds to deliver early intervention and prevention services irrespective of whether they are Commonwealth or State law matters. Commissions will also be able to fund State child protection and family violence matters that are linked to a grant of assistance in Australian Government family law.

The Australian Government provided $186.009 million for legal aid in 2009–10, including one-off additional funding and funding provided for legal aid services related to the Northern Territory Emergency Response. Of this funding, $173.5 million was provided as Australian Government payments to the States and Territories for the provision of legal aid services through legal aid commissions for matters arising under Commonwealth laws that are now classified as National Partnership payments. This included $2.072 million provided for initiatives to improve access to services in regional Australia under the Regional Innovations Program for Legal Services in New South Wales, Queensland, Western Australia, Victoria, the Northern Territory and Tasmania. This also included $11 million in one-off additional funds, which were provided to legal aid commissions to relieve cost pressures on services in these jurisdictions affecting the provision of services to families with children.

The Legal Aid Program also reimbursed defence costs of $9.844 million incurred by legal aid commissions in expensive Commonwealth criminal cases, so that the high cost of these cases did not affect commissions’ ability to provide services in other matters, such as family law. The Northern Territory Legal Aid Commission was reimbursed $0.147 million for the cost of services relating to illegal foreign fishing matters.

Indigenous legal aid

The primary objective of the Legal Aid for Indigenous Australians program is to improve Indigenous Australians’ access to justice and provide high-quality and culturally sensitive legal aid services, so they can exercise their legal rights as Australian citizens. The program is delivered through contract for services agreements between the Australian Government and eight state/zone wide Aboriginal and Torres Strait Islander Legal Services (ATSILS).

Indigenous legal aid services provided under the program include advice, duty lawyer and casework services in criminal, family and civil law. The ATSILS deliver these services from numerous permanent locations, as well as at court circuits, bush courts and outreach locations in metropolitan, regional and remote areas throughout all States and Territories. The ATSILS also deliver services at Indigenous specific courts including Koori courts, Nunga courts, Murri courts and Aboriginal community courts.

In 2009–10 the Government provided $55.091 million through the Legal Aid for Indigenous Australians program for culturally sensitive legal aid services to Indigenous Australians. This included one-off additional funding of $2.55 million provided to help meet increased demand for Indigenous legal aid services in key pressure areas in Western Australia, the Northern Territory and New South Wales, and for expensive Indigenous cases.

Family violence prevention legal services

The Family Violence Prevention Legal Services (FVPLS) help Indigenous adults and children who are victims/survivors of family violence, including sexual assault and abuse, or who are at immediate risk of such violence. Funding is also available for early intervention and prevention projects. Such projects seek to prevent family violence and sexual assault from occurring. FVPLS is a national program delivered through a number of service providers to 31 identified high-need service areas. These cover broad geographic areas to ensure Indigenous Australians in the most remote locations have access to legal services and support to address this serious social problem.

The program objective is to work collaboratively with other service providers to deliver appropriate, accessible, equitable, efficient and effective legal assistance and related services to victims/survivors of family violence. During 2009–10 additional one-off funding of $0.760 million was provided to:

  • lodge victim’s compensation claims, including helping to pay for associated upfront costs such as medical reports
  • provide legal and related support to victims to ensure their rights are protected, and
  • increase awareness of services and related legal issues through improved resources and community legal education initiatives.

In 2009–10, the Australian Government provided a total of $20.1 million to support services under the FVPLS program.

FVPLS services deliver culturally appropriate services in a safe and sensitive environment. Services include legal advice and casework assistance; court support; counselling to victims of family violence and sexual assault; child protection and support; information, support and referral; community engagement; law reform and advocacy; and community legal education.

Native title

Legislative reforms

Reforms to the Native Title Act 1993 aimed at achieving quicker, more flexible negotiated settlements of native title claims commenced on 18 September 2009. The Native Title Amendment Act 2009 implemented a number of changes to improve the effectiveness and timeliness of native title mediation, as well as the outcomes parties can achieve under the Native Title Act. The reforms gave the Federal Court the central role in managing native title claims, including determining which body is best suited to mediate each claim. The Native Title Amendment Act also introduced new powers for the Court to encourage and facilitate more negotiated settlements, including enabling the Court to make orders on matters other than native title and to rely on a statement of facts agreed between the parties.

The Department worked with the Department of Families, Housing, Community Services and Indigenous Affairs to consult on and develop the Native Title Amendment Bill (No 2) 2009. The Bill was introduced into Parliament on 21 October 2009 and seeks to facilitate timely construction of public housing and specific public facilities on Indigenous-held land. The Senate Committee on Legal and Constitutional Affairs recommended the Bill be passed with an amendment to include provision of staff housing as part of its proposed new ‘future acts’ process. The Government accepted this recommendation.

On 14 January 2010, the Attorney-General released draft legislation detailing a proposed amendment to the Native Title Act that would allow parties to agree to disregard the historical extinguishment of native title in areas of land set aside for the purpose of preserving the natural environment, in certain circumstances. Submissions were sought on the proposal and the Government is considering these.

Resolution of native title

The Department continues to implement the Government’s policy that all parties, including the Australian Government, should take a less technical and more collaborative approach to native title. The Australian Government has sought to support alternative approaches developed by the States and Territories on a case-by-case basis.

On 30 June 2010, the Prime Minister signed a bilateral agreement with the Victorian Premier to provide a contribution towards settlement of claims to which the Australian Government is a party, under the Victorian Native Title Settlement Framework. The Victorian Framework has the potential to streamline the resolution of native title claims and provide significant long-term economic development opportunities for traditional owners and their communities. Under the framework each settlement will, through a registered Indigenous Land Use Agreement, result in the full and final resolution of relevant native title claims. The Attorney-General and the Minister for Families, Housing, Community Services and Indigenous Affairs agreed to contribute to the first two settlements under the framework. The Australian Government’s contribution will be deposited into the Victorian Traditional Owner Trust to provide for the financial viability of the relevant Indigenous corporation established under the Gunaikurnai settlement. It will provide a stable organisational platform from which to manage sustainable economic and social outcomes for members of the claim groups and their communities. The Gunaikurnai is one of the largest settlements in Victoria and will resolve half the existing native title claims in Victoria.

In November 2009, the Australian and Northern Territory governments reached an in-principle agreement with the Mirarr traditional owners to settle the Jabiru native title claim. The agreement avoided the need for a trial and, under it, Mirarr traditional ownership will be recognised by a grant of Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976, with an immediate 99-year leaseback of the Jabiru township to the Executive Director of Township Leasing. The Australian Government, Director of National Parks (Australian Government) and parties continue to progress the agreement’s implementation.

The Australian Government participated in negotiations with the Cape York Land Council and the Queensland Government to resolve native title on a regional basis in Cape York. The Kowanyama claim was the first to be progressed under this process, and on 22 October 2009 a consent determination over part of the claim area was made. The determination recognised native title rights over 2,730 square kilometres of land and waters. The parties are continuing to work constructively to settle a range of land related issues in the balance of the claim area.

Best practice guidelines for native title resolution

In August 2009, Australian Government, State and Territory native title ministers endorsed the Guidelines for Best Practice in Flexible and Sustainable Agreement Making, aimed at enabling governments to take a more proactive role in settling native title claims. The guidelines were developed by the Joint Working Group on Indigenous Land Settlements, comprising Australian, State and Territory government representatives and chaired by the Department. They provide practical guidance for governments on the behaviours, attitudes and practices that can achieve the efficient resolution of native title. Endorsement of the guidelines represents the first time governments have made a joint commitment to facilitate broader regional native title settlements, which can provide a range of practical benefits to native title groups and their communities.

Native Title Settlements Project

The Native Title Settlements Project was established in late 2009. The project is exploring opportunities for the Australian Government to encourage broader native title settlement outcomes with a view to sustainable cultural, economic, environmental and social outcomes for the Indigenous communities concerned. This includes facilitating a more coordinated Australian Government approach to settlements, through increased access to and inclusion of existing programs and resources from across portfolios.

Native Title Anthropologist Grants Program

The Department launched the Native Title Anthropologist Grants Program on 26 May 2010. The program will provide $1.4 million in grants to address the critical shortage of experienced anthropologists currently working in native title. Based on the outcomes of stakeholder consultation, the program focuses on training and development for anthropologists to smooth the transition from study to native title field work, professional development and support for anthropologists working in the native title sector, and establishing stronger links between academic and applied anthropological work.

Governance of native title agreements and sustainable benefits management

In 2009–10, the Department progressed a broad range of initiatives focused on effective long-term management of practical, sustainable and intergenerational benefits in native title agreements. This consolidates the work of the Native Title Payments Working Group convened in 2008 and the 2009–10 Terms of Reference of the Joint Working Group on Indigenous Land Settlements, endorsed by native title ministers in August 2009.

In April 2010, the Department organised a governance workshop on sustainable benefits management in native title agreements on behalf of the Joint Working Group, which attracted a broad cross-section of native title stakeholders. Dr Mary Edmunds, a prominent anthropologist and accredited mediator, facilitated the workshop. It generated robust discussion and valuable proposals for governments to consider in supporting Indigenous communities to achieve effective governance and sustainable economic outcomes.

On 3 June 2010, the Attorney-General and the Minister for Families, Housing, Community Services and Indigenous Affairs announced that the Government would consult on a package of reforms to promote leading practice in the governance of native title payments and in agreement-making. This includes a new independent statutory function to provide oversight of agreements and a range of governance and tax related initiatives.

Litigation

The Full Federal Court handed down its decision in the Bardi Jawi native title appeal on 18 March 2010, largely finding in favour of the native title appellants. A determination giving effect to the reasons for decision is yet to be made.

Hearings in the Torres Strait Regional Sea Claim concluded in July 2009. During the year, parties to the appeal, including the Australian Government, provided further written submissions on various issues at the Court’s invitation. Justice Finn has reserved judgment until 2 July 2010.

The Australian Government also made submissions in the Antakirinja Matu-Yankunytjatjara proceedings in respect of the operation of s 66B of the Native Title Act. Decision on that issue has been reserved.

Indigenous Land Use Agreement negotiations

The Department provided legal and policy advice on a range of Australian Government projects. This included the successful negotiation of an Indigenous Land Use Agreement in November 2009 to secure tenure for the Murchison Radio Astronomy Observatory site in Western Australia, as part of Australia’s international bid to host the Square Kilometre Array Project.

We continue to work with the Department of Defence on various projects, including negotiations for the expansion of the Cultana Training Area in South Australia and the Delamere Range Facility in the Northern Territory.

Law and justice for Indigenous Australians

The Department has worked to improve law and justice outcomes for Indigenous Australians through a number of strategic intergovernmental policy arrangements.

We led development of the National Indigenous Law and Justice Framework, which was agreed by all Australian governments in November 2009. The Framework provides a national approach to responding to the over-representation of Aboriginal and Torres Strait Islander people in all areas of the criminal justice system and is the first national policy statement in this area. The Framework is not a prescriptive document; rather it identifies key strategies and actions that governments or service providers can apply in the local or regional context, depending on the situation. The Framework is available on the Standing Committee of Attorneys-General website at <www.scag.gov.au> and the Departmental website at <http://ag.aglink.ag.gov.au>.

On 6 November 2009 the Australian Government hosted the Indigenous Community Safety Roundtable, bringing together Attorneys-General, police and Indigenous affairs ministers, police commissioners and Indigenous delegates. Ministers agreed on the importance of building relationships of trust and respect between Indigenous communities and the police, sharing information between police and other key welfare agencies, and providing access to sustained and responsive services for victims of family violence and sexual assault. Detailed proposals have been developed for ministers to consider.

The Department, through the Standing Committee of Attorneys-General, in conjunction with the Council of Australian Governments (COAG) Working Group on Indigenous Reform, is developing an Aboriginal and Torres Strait Islander Safe Communities Strategy as a schedule to the National Indigenous Reform Agreement—Closing the Gap—for COAG consideration. The Standing Committee of Attorneys-Generals is also developing an Indigenous justice target to measure reform in this area.

The 2008–09 Annual Report identified establishing an expert advisory body to advise government on Indigenous law and justice matters as a deliverable. While consultations were undertaken on the role of such a body, and nominations sought, the Government decided not to proceed with its establishment because of potential duplication with the work of the newly established National Congress of Australia’s First Peoples.

The Department’s Law and Justice Advocacy Development program aims to support Indigenous Australians in developing policy and law reform projects and delivering community legal education and information. In 2009–10 the Australian Government provided $2.44 million to the areas of justice advocacy, law reform, community legal education and research activities.

The Department has worked to improve law and justice outcomes for Indigenous Australians through a number of strategic intergovernmental policy arrangements, in particular the National Indigenous Law and Justice Framework, agreed by all governments in November 2009, and through the Indigenous Community Safety Roundtable, held in November 2009.

The Department continues to fund night patrol services for 80 communities in the Northern Territory under the Closing the Gap National Partnership. These services help people at risk of either causing or becoming the victims of harm, generally transporting people to a ‘safe’ place where their immediate needs can be addressed, and referring them to other services for ongoing assistance.

The Indigenous Justice Program, formerly the Prevention, Diversion, Rehabilitation and Restorative Justice Program, funds a range of initiatives to reduce the number of Indigenous Australians coming into adverse contact with the criminal justice system. Projects funded under this program focus on young Indigenous offenders and youth at risk, projects for prisoners to reduce reoffending and facilitate successful reintegration into the community, and initiatives under the interagency Petrol Sniffing Strategy.

Federal courts and tribunals

The Department has been working on the restructure of the federal courts system and military justice reform.

The Department developed the Access to Justice (Family Court Restructure and Other Measures Bill), introduced into Parliament on 24 June 2010. The restructured Family Court will be the single court dealing with family law matters. Federal Magistrates currently exercising family law jurisdiction in the Federal Magistrates Court will be offered commissions to the General Division of the Court. Existing Family Court judges will be assigned to the Appellate and Superior Division of the Court. The Federal Magistrates Court will continue to hear general federal law matters.

The Department also developed the Military Court of Australia Bill 2010, introduced in to Parliament on 24 June 2010, to establish a new federal court, the Military Court of Australia, under Chapter III of the Australian Constitution. The new court will have jurisdiction to try service offences and will replace the interim measures put in place following the High Court’s August 2009 decision in Lane v Morrison, which invalidated the Australian Military Court established by the previous Government. The Federal Court will administer the Military Court, which will consist of separate upper and lower Divisions, comprising judicial officers at the level of Federal Court judge and Federal Magistrate respectively.

The Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 and the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 came into law during the reporting period. These Acts streamlined procedures to improve the efficient operation of federal courts and reduce the cost and complexity of litigation.

In May 2010, the Government published its policy, ‘Judicial Appointments: Ensuring a Strong and Independent Judiciary Through a Transparent Process’, to educate the public about how appointments are made to federal courts.

In 2009–10, the Attorney-General and the Australian Government appointed the new Chief Justice of the Federal Court, five judges to the Federal Court, five judges to the Family Court, one judge to the Family Court of Western Australia and three federal magistrates to the Federal Magistrates Court.

Administrative law

On 29 June 2010, the Department held the inaugural Australian Administrative Justice Forum, which was attended by a range of Commonwealth Officials. The forum provided an overview of the Australian Government’s administrative justice policy and promoted higher-quality decision-making by providing agencies with an opportunity to discuss current issues in administrative decision-making and review. The forum will facilitate development of the Australian administrative justice system guides. Targeted towards decision- and policy-makers and largely drawn from the work of the Administrative Review Council, the guides aim to provide a high-level, accessible resource, which set out an overview of the current federal administrative justice system.

Purchaser/provider arrangements

The Department is no longer responsible for purchasing call centre services from Centrelink for the Family Relationship Advice Line. Administration of the Advice Line transferred to the Department of Families, Housing, Community Services and Indigenous Affairs on 1 July 2009. The Department retains policy responsibility for the Advice Line.

Evaluations/reviews

Community Legal Centre Family Law Duty Lawyer Service pilots

In February–March 2010, the Department reviewed the Community Legal Centre Family Law Duty Lawyer Service pilots. The review included on-site observations and considered feedback from relevant court registries and legal aid commission based duty lawyer services.

The review found that the service is successfully helping clients where legal aid duty lawyer services are experiencing a conflict of interest, and is providing both parties to a family law action with appropriate access to legal assistance. It found that the services were helping vulnerable clients with multiple family law issues resolve those issues without recourse to further litigation.

The findings of the review were reported to participating community legal centres, and funding to continue the pilots was provided in the 2010–11 Federal Budget.

Strategic Framework for Access to Justice in the Federal Civil Justice System

The Access to Justice Taskforce delivered its report A Strategic Framework for Access to Justice in the Federal Civil Justice System in September 2009. The taskforce was established to review the federal civil justice system and develop a more strategic approach to access to justice. The Australian Government adopted the taskforce’s central recommendations in September 2009, and released the report for public consultation in October 2009 with a view to identifying priority areas for action.

Evaluation of 2006 family law reforms

In 2006 the Department, in partnership with the Department of Families, Housing, Community Services and Indigenous Affairs, commissioned the Australian Institute of Family Studies to evaluate the impact of the 2006 reforms over three years. The evaluation collected data from 28,000 people involved in the family law system, and analysed administrative data and court files. The evaluation found that the changes had a positive effect in some areas and that the family law system is working well for most families. However, a significant proportion of families who actively engage in the family law system have complex needs and may be affected by family violence, child abuse, mental health problems and substance misuse. The Attorney-General released the evaluation report in January 2010. Additional research into the implications of the 2006 family law reforms on parenting arrangements and on the impact of family violence was also commissioned. Both research reports are available at <http://ag.aglink.ag.gov.au>.

Family Courts Violence Review

In July 2009 the Attorney-General commissioned former judge of the Family Court, Professor Richard Chisholm AM, to review the appropriateness of the legislation, p

ractices and procedures relating to matters before the federal family courts where issues of family violence arise. His final report was forwarded to the Attorney-General, the Chief Justice of the Family Court of Australia and the Chief Federal Magistrate, as per the terms of reference, on 4 December 2009. The Attorney-General released the report in January 2010.

Family Law Council Family Violence Inquiry

In December 2009, the Family Law Council presented the Attorney-General with the report Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues. The report considers family violence in the context of its visibility in the Australian family law system. It acknowledges the compounding effect of mental health problems and alcohol and substance abuse as well as Indigenous and cultural considerations.

Outlook as at 30 June 2010

On 3 March 2010 the Attorney-General approved the integration of the Law and Justice Advocacy Development program and the Legal Aid for Indigenous Australians program to form the Indigenous Legal Aid and Policy Reform program. New guidelines for the program were developed for 2010–11 and administrative arrangements under the program will take effect from 1 July 2010.

In 2010–11, the Department will provide advice to the Attorney-General on the future funding and service delivery arrangements for Indigenous legal aid services following expiration of the current service delivery arrangements on 30 June 2011.

A priority for the Family Violence Prevention Legal Services is to encourage service providers to regionalise service delivery, where appropriate. The model brings different services and units within the auspices of one organisation in each State or Territory thereby:

  • producing economies of scale
  • providing opportunities to build capacity for staff and for the organisation
  • providing a greater sharing of intellectual property
  • increasing the organisation’s strengths, and
  • providing a more effective voice at regional and national levels.

Positive aspects of regionalisation have been demonstrated and the Department supports broader adoption of the model.

The Community Legal Services Program is introducing a new performance management framework when new service agreements commence on 1 July 2010. The framework will help enhance the program’s client focus.

The work of the Legal Aid Program will focus on implementing the National Partnership Agreement for Legal Assistance Services, including support for the jurisdictional forums to be established under the agreement and working with legal aid commissions on reporting against the performance benchmarks established by the agreement.

The Department will progress implementation of initiatives under Australia’s Human Rights Framework. Key projects will include consolidation of Commonwealth anti-discrimination laws, human rights education for public sector officers and through the community education grants program, and the Human Rights National Action Plan. Exposure draft legislation for consolidated anti-discrimination laws will be developed before legislation is introduced in 2011. A human rights toolkit containing information on human rights obligations and guidance to policy and legislation officers and administrative decision-makers will be developed in 2010.

The Department will deliver seminars and workshops to Australian Government departments to coincide with commencement of measures under the Human Rights (Parliamentary Scrutiny) Bill 2010 and Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 currently before Parliament. Measures will include establishment of the Parliamentary Joint Committee on Human Rights and requirements for new legislation to have statements of compatibility. The Department will consult across Australian Government departments, relevant State and Territory agencies and non-government organisations to develop the new Human Rights National Action Plan.

On 3 June 2010 the Attorney-General and the Minister for Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) announced that the Government would consult on a possible package of reforms to promote leading practice in the governance of native title payments and agreement-making. Together with FaHCSIA, the Department will consult and develop policy on the proposed reforms. Initiatives will include an independent function to review agreements, a range of related governance measures, (including some of the recommendations made at the Governance Workshop recently conducted by the Joint Working Group on Indigenous Land Settlements), and complementary measures to streamline future legislative processes. The Department will also seek to clarify the meaning of ‘in good faith’ under the right to negotiate provisions.

The Department will continue implementing the Government’s policy of a less technical approach to resolving native title, by reconsidering when and how the Australian Government acts as a party to native title matters. It is intended that the Australian Government’s participation will more closely focus on claims and issues of broader strategic significance to the Australian Government and native title system as a whole. The Australian Government will also continue to negotiate several significant Indigenous land use agreements.

The Department will continue promoting the Strategic Framework for Access to Justice to provide a basis for future decisions on reform of the justice system, to promote access to justice and help overcome social exclusion.

Key priorities for 2010–11 for Program 1.1 will include:

  • implementing a range of initiatives to promote access to justice
  • strengthening mechanisms to resolve disputes outside the courts
  • working with States and Territories to:
  • ensure seamless access to legal information and services
  • further harmonise and improve evidence laws, and
  • working with other government agencies to reduce complexity in Australian Government legislation.

Michelle Lee. Access to Justice Division 

Michelle Lee, Access to Justice Division

Our people

Establishing an independent military court

a permanent solution to military justice

The establishment of a Military Court of Australia will ensure that serious service offences are tried by an independent and impartial court, constituted in accordance with Chapter III of the Constitution, according to Michelle Lee, a Legal Officer in the Department’s Federal Courts Branch.

‘Independence from the military chain of command, ready public accessibility and a requirement for decision makers to publish reasons for their decisions will benefit service personnel and their families,’ Michelle said.

‘It will also enhance the transparency of the military justice process and provide greater certainty that discipline is being maintained in an impartial and fair manner.’

The move to establish a new court has followed the High Court of Australia’s August 2009 decision that the Australian Military Court was invalid on the grounds it purported to exercise the judicial power of the Commonwealth and was not constituted in accordance with Chapter III of the Constitution.

As an interim measure, the system of courts martial and Defence Force magistrates, which existed before the establishment of the Australian Military Court, was reintroduced. However, the Minister for Defence has since announced that a permanent solution to military justice would involve a move to a Chapter III court.

The Department’s Restructure Implementation Team is consequently working closely with the Department of Defence to develop and implement this decision.

‘It is personally satisfying that the work I do, including consulting with stakeholders, drafting ministerial documents and providing instructions to legislative drafters, has a broad public interest, is contributing to improving the military justice system and has an impact on the future shape of the federal court system,’ Michelle said.

A Bill establishing the Military Court of Australia was introduced in Parliament in June 2010. The Military Court of Australia is expected to be fully operational by October 2011.


Performance results

Table 5: Performance results, Program 1.1: Access to justice and social inclusion

Key performance indicators Results
Extent to which Australians have been able to put forward their views on human rights Achieved

The National Human Rights Consultation allowed Australians to put forward their views on human rights. Australians continue to bring their views to government after completion of the consultation. Australia’s Human Rights Framework provides further consultation on human rights during implementation of its measures.
Increase in the rate of resolution of native title claims Ongoing

The Native Title Amendment Act 2009 provided the Federal Court with the central role in managing native title claims. The Court has now set targets for resolution of claims that it and parties will work together to realise.

The Department’s Native Title Settlements Project has helped progress resolution of a number of claims to which the Commonwealth is a party.
Enhanced confidence in and satisfaction with (measured as a ratio of complaints/satisfaction/volume):  
  • administration of the marriage celebrants program
Satisfaction ratio: Achieved

3,002 marriage celebrant applications were processed and 2,435 marriage celebrants were registered.
  • administration of child abduction cases
Satisfaction ratio: Achieved

191 child abduction matters were handled in accordance with the Family Law (Child Abduction Convention) Regulations 1986.
  • administration of other private international law matters
Satisfaction ratio: Achieved

The Department handled 166 matters in accordance with international arrangements, including 100 new matters (41 evidence and 59 service matters) and 66 progressed files (34 evidence and 32 service matters). In addition, 393 private international law enquiries were dealt with.
  • administration and operation of Indigenous legal services, community legal services and legal aid programs
Satisfaction ratio: Achieved.

The Department administered these programs efficiently and effectively and no significant concerns were raised with the Department about its performance. It ensured that service providers and other stakeholders had opportunities to provide input about administration of the programs (e.g. through regular meetings with service providers and/or their representatives, and seeking regular feedback from providers as to the Department’s performance).
Expert advisory body on Indigenous justice matters meets regularly and provides advice to government and other relevant forums Not progressed

The advisory body was not established, as it would have duplicated the work of the new National Congress of Australia’s First Peoples.
Extent to which appropriate legal assistance services are available and accessible to Australians who are highly disadvantaged or at increased risk of disadvantage, including people living in regional, rural and remote Australia Substantially Achieved

Direct legal assistance totalling $5.531 million was provided under the Department’s 26 financial assistance schemes.

State and Territory legal aid commissions continued to provide legal education, information, advice, minor assistance, family dispute resolution and grants of legal aid in Commonwealth law matters to disadvantaged and vulnerable Australians. Funding was also provided to commissions through the Regional Innovations Program for Legal Services to improve services in regional Australia.

Community Legal Centres have continued to provide legal assistance and advice to disadvantaged Australians on a wide range of issues.

Family Violence Prevention Legal Services and Indigenous Legal Aid services provided culturally appropriate legal assistance for Indigenous Australians, particularly those who live in regional, rural and remote Australia.
Ministers are satisfied that the program objectives are appropriate, specific and measurable and that there are robust indicators to provide effective scrutiny of trends in progress towards objectives Achieved

Ministers approved all relevant program objectives.

Table 6: 1.1.1 Access to justice

Administered Items Results
Family Relationships Services Program Achieved

Services provided by community-based organisations funded under the program.
  2008–09 2009–10
Number of clients 120,722* registered clients plus 81,878 calls answered by the Advice Line, 3,969 telephone dispute resolution clients and 154,158 contacts with Family Relationship Centres. 165,195* registered clients plus 79,745 calls answered by the Advice Line, 20,832 telephone dispute resolution clients and 192,006 contacts with Family Relationship Centres.
Budget price: $165.809 million Actual price: $162.647 million
Family Court of Western Australia Achieved

The Government contributes to the operating expenses of the Family Court of Western Australia to ensure access to the court in family law and child support matters.

In 2009–10, the Government provided a one-off payment of $0.304 million for work performed by WA Magistrates and FCWA circuits conducted in regional areas.
Budget price: $14.346 million Actual price: $14.346 million
Payments for services under the Family Law Act 1975 and the Child Support Scheme legislation Achieved

In accordance with individual agreements with the States, the Australian Government promotes an accessible system of federal civil justice by providing funds for services under the Family Law Act 1975 and Commonwealth child support legislation by State courts of summary jurisdiction.
Budget price: $1.890 million Actual price: $1.409 million
Payments to Law Courts Limited for contributions to operating and capital expenses Achieved

The Department pays 47.5% of the operating expenses of the Law Courts building in Sydney.
Budget price: $34.245 million Actual price: $34.246 million
Payments for grants to Australian organisations Achieved

Payments made to 16 organisations for 20 projects.
Budget price: $1.569 million Actual price: $1.563 million
Payments for membership of international bodies Achieved

Funds provided in accordance with approved arrangements.
Budget price: $0.465 million Actual price: $0.508 million
Special appropriations Results
Judges’ Pensions Act 1968 Achieved

Until 1 January 2010, the Department administered the Judges’ Pensions Act 1968. This Act provides for payment of pensions to former judges and some former statutory office holders. All payments have been made in accordance with advice provided, entitlements and agreed arrangements.

Responsibility for the scheme transferred to the Department of Finance and Deregulation on 1 January 2010.
Budget price: $32.800 million Actual price: $27.651 million

* Telephone and walk-in contacts with Family Relationship Centres. A proportion of these contacts may become registered clients.

Table 7: 1.1.2 Social inclusion

Administered Items Results
Payments for provision of legal aid for Indigenous Australians Achieved

In 2009–10 one-off additional funding of $2.55 million was provided, not all of which was directed through legal services contracts.
Budget price: $55.091 million Actual price: $55.091 million
Payments for provision of law and justice advocacy services for Indigenous Australians Achieved

Payments were made through program funding agreements for 2009–10. This program funded 10 advocacy, law reform, community legal education and research projects.
Budget price: $4.402 million Actual price: $2.440 million
Payments for provision of prevention, diversion, rehabilitation and restorative justice services for Indigenous Australians Achieved

Funds were provided through standard funding agreements for 70 projects across four sub-outputs: youth projects, prisoner support and rehabilitation, restorative justice, and community patrols.
Budget price: $12.748 million Actual price: $12.748 million
Payments for provision of family violence prevention legal services for Indigenous Australians Achieved

Payments were made through funding agreements with approved service providers. The program funded a number of organisation that delivered services to 31 sites in rural and remote locations across Australia.
Budget price: $20.149 million Actual price: $20.143 million
Payments for Indigenous interpreter services in the Northern Territory Achieved

Funding provided for interpreter services to Indigenous Australians in the Northern Territory under a three-year memorandum of understanding.
Budget price: $1.219 million Actual price: $1.219 million
Payment for provision of legal aid—legal aid commissions Achieved

Funding was provided from the Expensive Commonwealth Criminal Cases Fund and the Illegal Foreign Fishing Fund for 17 claims from legal aid commissions for reimbursement of costs incurred during expensive matters.
Budget price: $12.486 million Actual price: $10.066 million
Payments for provision of community legal services Achieved

Payments made in accordance with the terms and conditions of the service agreement.
Budget price: $30.547 million Actual price: $30.547 million
Financial assistance towards legal costs and related expenses Achieved

The Department received 512 applications for grants of financial assistance, and processed 516 applications. At 30 June 2010, 67 applications were on hand. The Department received 1,287 claims for payment under grants of assistance, and processed 1,418 payments. At 30 June 2010, 88 claims for payment were on hand. No decisions were subject to judicial review or review by the Ombudsman, indicating a high level of consistency and adherence to administrative law requirements.
Budget price: $5.579 million Actual price: $5.579 million
National consultation on human rights and responsibilities Achieved

The National Human Rights Consultation reported to Government in September 2009. The Government released Australia’s Human Rights Framework on 21 April 2010.
Budget price: $0.495 million Actual price: $0.495 million
Northern Territory Law and Order measures Achieved

Funding provided for night patrol services and additional legal and interpreter services.
Budget price: $21.923 million Actual price: $21.922 million
National specific purpose payments Results
Legal aid1 Achieved

Payments were made under Commonwealth legal aid arrangements to support provision of assistance in Commonwealth law matters by legal aid commissions in all States and Territories. Payments included one-off additional funding of $11 million.

Negotiations with States and Territories for the National Partnership Agreement on Legal Assistance Services were successfully concluded to enable the agreement to commence on 1 July 2010.
Actual price: $173.523 million Actual price: $173.523 million

Note:

1Appropriation held and payments made by the Department of the Treasury as National Partnership Payments.


Benjamin Shaw and Stephen Fox, Social Inclusion Division 

Benjamin Shaw and Stephen Fox,
Social Inclusion Division

Our people

Improving access to premises for people with disability

removing an unnecessary barrier to social inclusion

New standards to operate across the Australian Government, States and Territories will provide greater dignity to people with disability who access public buildings, and help the building industry meet its accessibility obligations.

The Disability (Access to Premises—Buildings) Standards 2010 (Premises Standards), announced by the Government in March 2010, provide minimum national standards for accessibility to ensure dignified access to—and use of—public buildings for people with disability.

As Benjamin Shaw, a Legal Officer with the Human Rights Branch, explains, ‘The standards will enhance the rights of people with disability and deliver greater regulatory certainty for the building industry regarding compliance with the Disability Discrimination Act 1992’.

The Premises Standards are a strategic reform, setting out key measures that will work in tandem with the certification mechanisms operating at the State and Territory level, to provide consistency in building regulation.

Stephen Fox, a Principal Legal Officer with the Human Rights Branch, oversaw completion of the policy and supporting documents for the standards. This was a difficult process, involving a mix of technical standards with general regulation and concepts. It also had to amalgamate private voluntary standards, State and Territory building regulations, and the views and interests of a diverse range of stakeholders.

‘We were able to overcome inevitable differences of opinion on details, and it has been enormously encouraging to find a strong general consensus in favour of the standards and their aims,’ Stephen said.

‘The Premises Standards will bring major changes to the physical environment as well as attitudes, making disability accessibility an accepted part of the built environment and removing an unnecessary barrier to social inclusion.’

Subject to them being disallowed, the Premises Standards are set to commence on 1 May 2011. Work is continuing to ensure the standards are implemented within State and Territory building regulation before commencement.


Program 1.2: Legal services

Summary

In 2009–10, the Department contributed to delivery of Program 1.2 Legal Services by:

  • supporting the Australian Government’s commitment to a stronger Australia through a seamless national economy, particularly by acting on the Council of Australian Governments’ priorities to progress national legal profession reforms
  • conducting broad consultation on whether an R18+ rating for computer games should be introduced
  • actively contributing to discussions on copyright issues in international forums, including trade agreements and treaty negotiations
  • providing valuable information, through the Classification Board, to the public in choosing what material they wish to view
  • participating in, and implementing global initiatives supporting beneficial outcomes for the Australian community
  • representing Australia in a wide range of negotiations on treaties and other legal instruments, including amendments to the Rome Statute of the International Criminal Court
  • promoting Australia’s interests through providing advice on international law and implementing international law in Australian domestic law, which contributed not only to achieving the desired outcomes for the Department but also those of other Australian Government departments, and
  • providing assistance and advice on constitutional policy and development, litigation and public law issues of federal significance.

Major achievements

Personal property securities

The Department continued progressing reform of personal property securities. Work included extensive consultation with stakeholders on the legislative and information and communications technology frameworks for the reform, support for Senate committee inquiries into proposed personal property securities legislation, and development of a single, national, online personal property securities register.

The Department developed and supported passage of the Personal Property Securities Act 2009, Personal Property Securities (Consequential Amendments) Act 2009 and the Personal Property Securities (Corporations and Other Amendments) Act 2010. These Acts represent the national legislative framework for secured lending involving personal property and are the result of extensive stakeholder consultation and parliamentary review. The Department also released an exposure draft of the proposed Personal Property Securities Regulation, for public comment, on 9 April 2010.

The personal property securities legislative framework provides for a registrar of personal property securities to develop and maintain a personal property securities register. The register will provide notice of security interests in personal property to parties interested in purchasing or lending against that property. The new arrangements will apply throughout Australia, replacing the overlapping and inconsistent regulation and registers currently operating in the Australian Government, and the States and Territories. The new arrangements will be less complex than those current and will reduce transaction and compliance costs for all parties involved in personal property securities transactions.

The Department supported the States and Territories in developing consequential legislation required to give effect to personal property securities reform. Most jurisdictions passed or made significant progress in developing consequential legislation.

Significant progress was made in designing and building the new personal property securities register. The Department worked closely with its systems integrator, Fujitsu Australia Limited, and stakeholders in the banking, finance and information broking industries to develop the register.

In October 2009 the Attorney-General decided that responsibility for the new personal property securities register would be assumed by Insolvency and Trustee Service Australia when the register commences operation, and that policy responsibility for the personal property securities legislative framework would remain with the Department. The Department has worked closely with Insolvency and Trustee Service Australia to ensure the smooth transition of operational responsibility for the register.

Personal insolvency

The Bankruptcy Legislation Amendment Bill 2009 was passed on 24 June 2010. The amendments will give debtors in financial distress a more realistic opportunity to get advice and consider all available options before declaring bankruptcy. The Department consulted widely in developing the Bill and the Senate Standing Committee on Legal and Constitutional Affairs recommended that the Bill be passed. The Department, in consultation with Insolvency and Trustee Service Australia, also completed a biennial review of Insolvency and Trustee Service Australia’s fees and charges.

Regulation of the legal profession

The National Legal Profession Reform Taskforce, headed by Secretary Roger Wilkins AO, delivered a draft Legal Profession National Law, National Rules and accompanying package, within the COAG deadline, for a three-month consultation with stakeholders, including consumers. The consultation period ends on 13 August 2010. COAG asked the taskforce to report to it by the end of the year with a finalised National Law, National Rules and accompanying package.

In preparing the proposed Law and Rules, the taskforce aimed to achieve:

  • uniformity of laws dealing with the legal profession across Australia
  • enhanced and consistent consumer protection
  • a lower regulatory burden on the profession through simpler, shorter laws and a principle-based approach, and
  • efficient and effective national regulation.

Copyright

The Department implemented a recommendation of Sir Peter Gershon’s Review of the Australian Government Use of Information and Technology relating to ownership of intellectual property under information and communication technology contracts. As a result of the Department’s review, Australian Government agencies will need to alter the default position in information and communication technology contracts so the supplier, rather than the Australian Government, retains intellectual property ownership.

The Standing Committee of Attorneys-General finalised and approved the Model Electronic Transactions Amendment Bill 2010 in May 2010. The legislation aims to implement the UN Convention on the Use of Electronic Communications in International Contracts 2005, which will increase certainty for international trade and encourage further growth of electronic commerce.

The Government’s response to the Government 2.0 Taskforce’s report Engage: Getting on with Government 2.0 will affect the way Australian Government agencies license their copyright material. The Department is amending the Intellectual Property Principles for Australian Government Agencies, the associated intellectual property manual, and developing guidelines to help agencies determine when and how to make open content licensing decisions.

The Department continues to provide copyright expertise and participate in Australia’s Free Trade Agreement and Anti-Counterfeiting Trade Agreement negotiations. We are also actively contributing to international discussions to improve levels of access to copyright materials for the blind and visually impaired.

The Department actively participated in Asia–Pacific Economic Cooperation (APEC) through the Intellectual Property Experts Group meetings and in various seminars, and contributed to copyright-related capacity building activities with the World Intellectual Property Organization.

In 2009–10, the Commonwealth Copyright Administration responded to 2,629 written requests to reproduce Australian Government copyright material.

Classification

The Classification Operations Branch provides a range of industry training programs, and industry sectors continue to enrol in classification training programs to facilitate access to the various assessor schemes. To further promote a common understanding of classification standards, training was also provided to officers from Australian Government, State and Territory law enforcement agencies, the Australian Customs and Border Protection Service and the Australian Communications and Media Authority.

The Classification Liaison Scheme is a joint State, Territory and Australian government initiative aimed at improving industry compliance with classification laws. In 2009–10 Classification Liaison Scheme staff conducted 895 compliance checks across a range of restricted and non-restricted premises in capital cities, and regional and rural centres.

A review of classification fees began in 2008–09 and proposed fees were released for industry and stakeholder consultation in 2009–10. New fees are set to be introduced in 2010–11.

R18+ rating for computer games discussion paper and consultations

The Department released a discussion paper in December 2009 on whether an R18+ classification for computer games should be introduced. The consultation attracted approximately 60,000 submissions. A status report on the consultations was released in May 2010.

The Department is developing options for further analysis of community and expert views to aid discussions. Ministers agreed to further discuss the issue at a future Standing Committee of Attorneys-General meeting.

Customs regulations

Penalties for importing and exporting objectionable material have been increased. Under the Customs Act 1901 fines of up to $110,000 apply to non-commercial quantities of objectionable goods imported for personal use or that are exported. Following amendments to the Customs Regulations 1926 in December 2009, there is now an additional penalty of imprisonment of up to five years for import or export of a commercial quantity of objectionable goods and for import of objectionable goods for a commercial purpose.

Compliance and enforcement

The Compliance and Enforcement Working Party is chaired by the Australian Government and includes representatives from States and Territories and the Classification Liaison Scheme. It has met several times and identified a number of issues to improve compliance and enforcement of classification laws.

The first Classification Enforcement Contacts Forum, held in Sydney, discussed ways of improving compliance with classification laws. It is anticipated that regular meetings of this forum will achieve a greater focus on compliance with classification laws so Australians are not unwillingly exposed to confronting or offensive material in the marketplace. All State and Territory jurisdictions were represented together with the Australian Customs Service and the Australian Communications and Media Authority. Positive, broad ranging discussions were held and a number of initiatives from this forum will be implemented in 2010–11.

International law

The Department has provided advice to advance Australian Government initiatives with an international law element. We have advised the Government on:

  • Australia’s overseas deployments to Afghanistan, Solomon Islands and Timor-Leste, including rules of engagement, status of forces, immunities and other operational issues
  • implementation of sanctions, including sanctions against Iran and North Korea
  • maritime security, including people smuggling
  • climate change
  • law of the sea issues, including those concerning fisheries and petroleum
  • the national broadband network, and
  • air services agreements.

The Department also participated in a range of international negotiations, including protocols containing new aviation anti-terrorism offences, the protocol to amend the Hazardous and Noxious Substances Convention, negotiation with the European Space Agency on a new space vehicle tracking agreement, amendments to the Rome Statute of the International Criminal Court, negotiations within the International Whaling Commission and several regional fisheries and management organisation agreements.

The Parliament passed amendments to the Foreign States Immunities Act 1985, which came into force in September 2009. These amendments confer immunity on foreign emergency personnel from the civil jurisdiction of Australian courts with respect to actions taken in the course of their duties when assisting in Australia.

International security law

The Department continued to participate in, and provide legal advice on, the Proliferation Security Initiative, including attending meetings of operational experts and participating in outreach activities. For example, a presentation on the Proliferation Security Initiative and International Law was made to the Observer Program for Exercise Deep Sabre II held in Singapore in October 2009.

The Department also participated in, and provided legal advice to, the Australian delegation to the Review Conference of the Rome Statute of the International Criminal Court held in May–June 2010. The conference adopted amendments to define the crime of aggression under the Statute, as well as adding three new war crimes to the jurisdiction of the court relating to poison weapons, asphyxiating poisons and other gases, and expanding bullets.

International trade law

The Department worked closely with the Department of Foreign Affairs and Trade in negotiating free trade agreements, including with China, the Gulf Cooperation Council, Japan, Korea, Malaysia, the ‘PACER Plus’ Agreement with the Pacific Island Forum countries, the Trans-Pacific Partnership Agreement and an investment protocol with New Zealand.

There were also significant developments in the field of international arbitration. The International Arbitration Amendment Act 2010 was passed in June 2010. This legislation represents international best practice and provides a solid foundation for promoting the conduct of international arbitration in Australia.

A new international disputes centre was established. The new centre in Sydney was established in partnership with the New South Wales Government, the Australian Commercial Disputes Centre and the Australian Centre for International Commercial Arbitration.

On 7 May 2010 the Standing Committee of Attorneys-General also agreed to implement new model State and Territory commercial arbitration legislation, which will complement the June amendments to Commonwealth legislation, and implement the UN Commission on International Trade Law (UNCITRAL) Model Law on Arbitration. The Department also leads the Australian delegation to UNCITRAL, which adopted the revised UNCITRAL Arbitration Rules in 2010.

The Trade Measures Review Officer reviewed anti-dumping decisions concerning geosynthetic clay liners and linear low-density polyethylene.

International human rights law

The Parliament passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2009, which commenced in April 2010. The Act creates a specific offence of torture in Commonwealth law to fulfil more clearly and explicitly Australia’s obligations under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Act also extends application of the prohibition on the death penalty to State laws, to ensure it cannot be introduced anywhere in Australia. This ensures Australia’s ongoing compliance with the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

The Department conducted an initial public consultation in April 2010 on Australia’s National Report for the UN Human Rights Council’s Universal Periodic Review mechanism. Australia is due to be reviewed under the Universal Periodic Review in January 2011. On 28 June 2010 the Department released Australia’s initial report under the UN Convention on the Rights of Persons with Disabilities for public consultation.

During 2009–10 Australia received nine new individual communications under the International Covenant on Civil and Political Rights and three under the Convention Against Torture. The UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, issued views on three communications involving Australia. The Committee advised Australia that it had discontinued consideration of four individual communications involving Australia, and the author withdrew one additional communication. Australia also received one request from the Committee on the Elimination of Racial Discrimination under its urgent action procedure.

International litigation

The Department has been involved in a range of litigation involving international law.

On 31 May 2010, Australia commenced proceedings against Japan in the International Court of Justice challenging the legality of Japan’s program of ‘scientific’ whaling in the Southern Ocean. The Attorney-General’s Department has primary responsibility for conducting this litigation.

Australia filed two amicus briefs with Courts in the United States. The first was a joint brief with the United Kingdom in the case of Sarei v Rio Tinto in the United States Ninth Circuit Court of Appeals. The brief set out the position of both governments that international law does not permit the United States Courts to exercise extraterritorial civil jurisdiction to adjudicate claims that have little connection to the United States. The case is likely to be heard in late 2010.

In the second case, Australia lodged an amicus brief with the United States Supreme Court. The appeal to the Supreme Court raised significant legal and regulatory issues of concern to Australia about the extraterritorial reach of United States law in relation to securities claims. In a significant judgment, the Supreme Court dismissed the appeal on 24 June 2010. The judgment was consistent with the position Australian took in its amicus brief.

We continue to work closely with the Department of Foreign Affairs and Trade in conducting World Trade Organization litigation. Two Counsel from the Department participated in the World Trade Organization Dispute Panel hearing in early July 2010 defending the case New Zealand brought against Australia over the importation of apples. The public release of the report of the Dispute Panel is expected early in 2010–11.

The Department also provided input into Australia’s submissions to World Trade Organization cases in which Australia is a third party, including:

  • China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio Visual Entertainment Products (Appeal), and
  • United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China.

Legal services

The Department works to ensure Australian Government agencies receive consistent and well-coordinated legal services of a high standard that uphold the public interest and are sensitive to their context of Australian Government interests, which are broader than those of any one agency. The Department also promotes and reports on compliance with the Legal Services Directions 2005, which provide a framework for delivery of legal services to the Australian Government and its agencies.

The Department has begun a major review and rewrite of the Legal Services Directions, taking into account the recommendations of the 2009 NADRAC report The Resolve to Resolve: Embracing ADR to improve access to justice and the report by Mr Anthony Blunn AO and Ms Sybille Krieger on Australian Government legal services procurement. The end of 2009–10 marks the second reporting period since the Attorney-General amended the Legal Services Directions to require Australian Government agencies to report on legal services expenditure in a template approved by the Department. This provides the Department and the Attorney-General with more comparable and consistent data for implementing evidence-based reform of efficient and effective use of legal services by the Australian Government.

The report of the review of Commonwealth Legal Services Procurement by Mr Anthony Blunn AO and Ms Sibyelle Krieger was commissioned in March 2009 and publicly released on 8 January 2010. The report found that the current system of agencies individually tendering for legal services is very costly to both the Australian Government and external services providers. The report recommended that the system be reviewed with a view to introducing a coordinated procurement process. The recommendations of the report are under consideration.

We have improved our involvement in significant legal issues affecting the Australian Government, including creating a single liaison point for agencies with the appointment of the Significant Issues Special Advisor.

We continue to provide training and information sessions on the Legal Services Directions to Australian Government departments, agencies and law firms. In 2009–10, the Department delivered 11 presentations and question-and-answer sessions to stakeholders and contributed to several sessions that were managed internally by agencies. In April 2010, the Department re-issued guidance notes on The Administrative Appeals Tribunal Act 1975; Obligation to Assist the Tribunal; Reporting on significant issues; and Appointment to accept service under s63 of the Judiciary Act 1903 (Cth), to provide further support to departments and agencies in applying the Legal Services Directions in a consistent and appropriate manner.

The Department has helped officials from two additional firms be appointed by the Attorney-General, under s63 of the Judiciary Act 1903, to receive service on behalf of the Australian Government. Information on the Department’s website confirms that documents can now be served on the Australian Government through officials of the Australian Government Solicitor, Blake Dawson, DLA Phillips Fox and Norton Rose.

International promotion of Australian legal services

The Department continues to work with the International Legal Services Advisory Council to implement legal cooperation initiatives and advance the interests of the legal services and legal education and training services internationally. Some of the year’s significant achievements included:

  • successfully implementing the fourth Australia–China Legal Profession Development Program with 10 Chinese legal practitioners undertaking training and work placements across Australia from February to June 2010
  • conducting a Legal Services Initiative workshop in Singapore on 30–31 July 2009, bringing together representatives from APEC economies to analyse approaches to foreign lawyer regulation and drafting of best practice guidelines for consideration by APEC Members
  • undertaking the Strengthening Australia–Japan Legal Infrastructure project to increase the professional mobility of lawyers between the two countries; this project directly resulted in the opening of the only current Australian law firm office in Tokyo
  • providing support and advice to the Department of Foreign Affairs and Trade on legal services market access interests in free trade negotiations
  • working with admitting authorities to improve the system for admission of overseas qualified lawyers in Australia
  • supporting efforts to increase market access in the United States, including implementing a visit by the International Legal Services Advisory Council Chairman to California and Washington DC in May 2010, and
  • together with the Law Council of Australia, implementing a visit by the Bar Council of India to advance the recognition of Australian law degrees and advance the two-way professional mobility of lawyers.

Legislative drafting and publishing services

The Office of Legislative Drafting and Publishing has two main functions, one being the drafting of legislation other than Bills or Acts. In 2009–10, our team of approximately 25 expert drafters sent client agencies final drafts of 691 legislative and other instruments. We continued to:

  • draft all Regulations, Proclamations and Rules of Court
  • undertake a range of other drafting jobs for the Australian Government and for other governments targeted for international aid
  • provide value for money in this latter work—our rates are based on actual costs and are competitive with those charged by similar legal services providers, and
  • deliver a range of related training, including to agency instructors and to our own staff as part of our commitment to their continuing legal education.

The Office also publishes all Australian Government legislation on the ComLaw website at <http://www.comlaw.gov.au>. Public usage of ComLaw continues to increase; more than seven million users visited the site in 2009–10. Behind the scenes, our team of 50 legislative editors and support staff continued to:

  • work with the Executive Council Secretariat and more than 70 separate agencies and to register required documents in accordance with the Legislative Instruments Act 2003
  • provide a central tabling and disallowance monitoring service, delivering an estimated 300,000 pages of material to the Parliament for scrutiny
  • track and publish the detail of relationships between Bills, Acts and other important legislative material
  • prepare compilations of key legislation as amended or otherwise changed, including some modified Western Australian laws that apply in the Indian Ocean Territories
  • publish legal notices in the Government Notices, Periodic and Special Gazette on behalf of a wide range of public sector and other organisations, and
  • manage eight different revenue streams and employ flexible staffing practices, including home-based work, to manage seasonal peaks in workload.

Milestones in 2009–10 included:

  • a major overhaul of the fees we charge agencies—before this, registering a one-page instrument cost the same as an 800-page instrument despite the difference in workload
  • compilation of the Offshore Petroleum and Greenhouse Gas Storage Act 2006, a particularly complex task which involved over 350 individual and 2,000 bulk changes
  • establishment of a joint taskforce with the Civil Aviation Safety Authority and the relevant policy department to develop a new regulatory framework for civil aviation, and
  • commencement of new provisions of the Acts Publication Act 1905, as a result of which we expect to start publishing Acts online in authoritative form from 2010–11.

Work to build a faster and smarter version of ComLaw continued during 2009–10, and a new version of ComLaw will go live in 2010–11.

Constitutional and key public law

The Department provides assistance and advice on constitutional policy and development, litigation and public law issues of national significance. In particular, we continued providing advice about harmonisation of federal legal arrangements in the areas of personal property securities, consumer credit, business names, and registration of health professionals.

The Department remained pivotal in all questions of intervention by the Attorney-General in constitutional litigation. We prepared the Commonwealth’s case in a wide range of significant proceedings, for example the ICM Agriculture v Commonwealth and Arnold v Minister Administering the Water Management Act 2000 challenges to water licensing arrangements in the High Court. Other significant matters included the International Finance Trust Company v NSW Crime Commission challenge to New South Wales criminal assets recovery legislation, the Clarke v Commissioner of Taxation challenge to the Australian Government superannuation surcharge in its application to a South Australian parliamentarian, and Queen v RK which considered the effect of the constitutional trial by jury protection.

Purchaser/provider arrangements

The Department provides operational and financial support for the Classification Board and Classification Review Board. The Classification Board operates on a cost recovery basis, the Classification Review Board on a partial recovery basis.

In 2009–10, the Boards received 7,311 applications and made 7,186 decisions. The estimated revenue for 2009–10 was $8.177 million with actual revenue of $7.095 million for the period.

The Australian Communications and Media Authority may apply to the Classification Board for classification of content under the Broadcasting Services Act 1992. Australian Government agencies and authorities are not liable to pay classification fees. Each State and Territory enforcement agency is provided with up to 100 free classification decisions each calendar year if the request relates to enforcement of a law of the State or Territory that complements the Classification (Publications, Films and Computer Games) Act 1995.

Evaluations/reviews

Review of classification fees

The current classification fee structure was implemented on 1 December 2005. In accordance with government requirements to review cost-recovery arrangements at least every five years, the Department is conducting its cyclical review of classification fees.

The review is being conducted in-house and is managed by a steering committee.

A key purpose of the periodic review of fees is to update cost structures and data to reflect market changes, changes to demand, technological advances and costs associated with providing classification services.

The current fee review uses an activity-based costing methodology similar to that used in the 2005 review conducted by the Office of Film and Literature Classification, which has been adjusted to account for the different cost structures that apply within the Attorney-General’s Department and general increases in both labour and supplier costs.

An independent third party, ASCENT Governance Pty Ltd, completed a quality assurance check and, in their opinion, the methodology used complies with the requirements of the Commonwealth Cost Recovery Guidelines and the cost outcomes are reasonable.

The quantum of the majority of proposed fees has changed. Most have increased (or are new fees) but some have decreased (or remain unchanged). At the time of reporting the Department is reviewing submissions made in response to the proposed fees before recommending final fees to the Minister for Home Affairs for approval.

The Department will prepare a comprehensive Cost Recovery Impact Statement, which details the methodology and the derivation of fees for each product group including the underlying assumptions. The statement will also summarise the outcomes of consultation on the proposed fees. Once the new fees are implemented, the statement will be published on the Classification website.

Outlook as at 30 June 2010

The new fees arising from the Classification Fee Review will be implemented in 2010–11. The Department also expects to upgrade the cinema facilities used by the Classification Boards, incorporating a digital cinema solution for viewing both 2D and 3D material. A significant investment in development of a new customised business software system, known as COBRA, has also been realised. This will ensure that the Department has a stable information technology system, which is necessary to maintain high-levels of classification client service. Phase 1 of the system was implemented in 2009 and work on Phase 2 of the system is continuing for implementation in 2010–11.

Matters concerning developing and implementing international law will continue to occupy the Department. Work is proceeding on comprehensive maritime powers legislation as well as legislation to implement the Convention on Cluster Munitions. Australia will also be presenting its report under the UN Human Rights Council’s Universal Periodic Review mechanism with Australia due to be reviewed under that mechanism in January 2011.

The Department will provide ongoing advice and assistance on Australia’s deployments overseas as well as continuing to negotiate Free Trade Agreements and other agreements of benefit to Australia. It will also continue to work on the World Trade Organization case bought by New Zealand against Australia relating to importation of apples. The Department will carry out significant work to support the legal action Australia has commenced against Japan in the International Court of Justice challenging the legality of Japan’s program of ‘scientific’ whaling in the Southern Ocean.

We will continue to prepare the Commonwealth’s case across significant new and ongoing proceedings, and will remain supportive in the delivery of policy and litigation advice on public and federal law issues.


Andrew Walter and Stephen Bouwhuis, Office of International Law 

Andrew Walter and Stephen Bouwhuis,
Office of International Law

Our people

Instigating maritime law reform

enabling maritime enforcement officers to act with confidence

The complexity of maritime law will be significantly reduced under a single Act that consolidates the enforcement powers contained currently in at least 35 separate pieces of federal legislation.

The Attorney-General and the Minister for Home Affairs announced the development of the Maritime Powers Bill on 15 September 2009. The Bill will provide a unified and comprehensive suite of powers that will be available to enforce a diverse range of Australia’s laws, including illegal foreign fishing, customs, quarantine and drug trafficking.

The decision to develop the Bill followed the Maritime Enforcement Law Review, which found that the proliferation of enforcement provisions led to operational, legal and policy problems. It recommended that development of a single maritime enforcement Act would overcome many of the most serious shortcomings in the legal framework underpinning maritime enforcement.

Completed in August 2009, the review was managed by Principal Legal Officer Andrew Walter and Legal Officer Stephanie Ierino, with assistance from other International Law and Trade Branch staff.

Andrew explained that the review took a whole-of-government approach to examining enforcement laws, and used the information gathered to recommend ways to reduce legislative complexity.

‘Probably the biggest challenge was bringing together the views of the stakeholders involved, who had very different roles and perspectives about maritime enforcement,’ he said.

‘We consulted 23 agencies during the review, and the 35 Acts we considered were managed in 11 different portfolios.

‘A comprehensive new Act will represent a major innovation in coordinating Australian maritime enforcement activities and provide greater operational certainty and consistency for agencies in conducting these activities,’ Andrew explained.

‘Creating a single maritime enforcement law will help maritime enforcement officers act with confidence in the potentially dangerous maritime environment.’


Performance results

Table 8: Performance results, Program 1.2: Legal Services

Key performance indicators Results
Information about personal property interests is easier to access and use as measured by use of the proposed national personal property securities register Not Achieved

COAG agreed in July 2009 that the new PPS Register commence operation in May 2011.
The number of pieces of State, Territory and Commonwealth legislation dealing specifically with personal property securities is reduced Partially Achieved

The new PPS legislative framework will commence operation in May 2011.
Legal profession law and regulation are simplified Partially Achieved

The National Legal Profession Reform Taskforce reported as required by COAG with draft legislation. COAG has given the taskforce until the end of 2010 to produce revised legislation, following a three-month consultation period.
The Australian legal framework underpinning copyright policies is accepted and supported Substantially Achieved

Administration of the law in this area involves maintaining a balance between copyright owners and users of copyright material. The Department has maintained ongoing dialogue with stakeholders on particular issues and assessed the consequences of key court decisions.
The level of reported copyright piracy is reduced Achieved

Monitoring of industry statistics and engagement with industry and law enforcement agencies indicates that rates of copyright piracy in Australia have not increased. International rankings suggest that, in comparison to its regional trading partners, Australia is performing well in reducing copyright piracy.

The Department continues to participate in the Intellectual Property Enforcement Consultative Group, which is chaired by the Australian Federal Police and facilitates information exchange between government agencies, law enforcement and industry.
Classification decisions reflect broad community standards, as measured by community feedback and level of complaints on classification results Substantially Achieved

1,080 decision complaints about 122 titles were received in 2009–10; 6,476 classification decisions were made in 2009–10.
International law is reflected and implemented in Australian law and practice Achieved

Significant achievements were made in:

  • negotiating new international rules, including amendments to the Rome Statute of the International Criminal Court, and
  • implementing international law in Australia, including enactment of a law abolishing the death penalty and introducing a Commonwealth offence of torture, as well as amendments to laws concerning conduct of international arbitration.
Australia’s interests are benefitted through prosecuting and defending international litigation Achieved

The Department continues to provide assistance in defence of the World Trade Organization case brought by New Zealand against Australia concerning importation of apples. Australia commenced proceedings against Japan in the International Court of Justice challenging the validity of Japan’s program of ‘scientific’ whaling in the Southern Ocean. Australia filed two amicus briefs in United States Courts concerning inappropriate exercise of extraterritorial jurisdiction.
No Commonwealth delegated legislation drafted by the Office of Legislative Drafting and Publishing (OLDP) is declared invalid by courts Achieved

No legislation drafted by OLDP was declared invalid by courts in 2009–10.
No published legislation requires rectification Substantially Achieved

Since 1 January 2005 when we started publishing legislation in authoritative form online, we have received fewer than 30 requests to rectify legislation as made. Legislation subject to frequent and/or complex amendment is more likely to generate a request. Many requests do not in fact require a rectification but all are investigated thoroughly.
Ministers are satisfied that the program objectives are appropriate, specific and measurable and that there are robust indicators to provide effective scrutiny of trends in progress towards objectives Achieved

Table 9: 1.2.1 Civil law

Administered Items Results
Personal Property Securities—public awareness campaign Partially Achieved

Preparations for the PPS public awareness campaign commenced in 2009–10. The campaign will be executed in 2010–11 following COAG’s decision that the new PPS system will commence operation in May 2011.
Budget price: $0.088 million Actual price: $0.087 million
Clark inquiry into the case of Dr Mohamed Haneef Achieved
Budget price: Nil Actual price: $0.002 million
Special appropriations Results
Law Officers Act 1964 s 16(13)—former Solicitors-General Achieved

All pensions were transferred to the Department of Finance and Deregulation on 1 January 2010.
Budget price: $0.450 million Actual price: $0.163 million

Table 10: 1.2.3 Legislative drafting and publishing

Administered Items Results
Publication of Acts and select legislative instruments Achieved

In 2009–10 we continued to print and distribute official print copies of selected legislative material including all new Acts and select legislative instruments to various bodies within Australia and overseas.
Budget price: $1.495 million Actual price: $1.500 million

Joshua Klose, Civil Law Division 

Joshua Klose, Civil Law Division

Our people

Consulting the community on an R18+ classification for computer games

the project facilitates informed decision-making

Australians are passionate about computer games, making almost 60,000 submissions to the Attorney-General’s Department in response to a December 2009 discussion paper, Should the Australian National Classification Scheme include an R18+ classification category for computer games?

This was the largest response to a consultation conducted by the Department. Over 98 per cent of stakeholders and members of the public who considered and responded to the paper supported the introduction of an R18+ classification.

Joshua Klose, a graduate who worked with the Classification Policy Section during February–May, helped process the submissions.

‘The primary challenge we faced was processing the large number of submissions in a timely and accurate manner.

‘Even though we had invited use of templates for submissions, the task of processing was complicated by the diverse formats in which they were received. For example, while some were sent by email, many were hardcopy, handwritten responses. This made computer-automated processing difficult.’

With a background in IT, Joshua was quickly called upon to help develop technical solutions to process this volume of submissions. One of the solutions he devised involved creating computer programs to automatically process email submissions and add them into the Department’s electronic document management system.

In May 2010, a status report on the consultation was presented to the Standing Committee of Attorneys-General—this was a rewarding milestone for Joshua and his colleagues.

‘By efficiently providing ministers with a summary of community and stakeholder views, the project facilitates an informed decision-making process,’ Joshua explained.

‘It has been a highlight to be involved in a project that many Australians feel passionately about. And it was important to ensure community sentiment was properly canvassed.’

The Classification Policy Section is preparing a final report for the Standing Committee to consider at its next meeting.

Previous Page Next Page