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Chapter 7 - Civil Justice and Legal Services - departmental programs

 

Civil Justice and Legal Services - departmental programs

Program 1.1

Attorney-General’s Department operating expenses – Civil Justice and Legal Services

 

Summary

The major focus in 2010–11 for Program 1.1 was access to justice and social inclusion, including:

  • implementing recommendations from the Access to Justice Taskforce report
  • building an evidence base to inform future policy and program decisions and assist in ensuring compliance with the objectives identified in the Strategic Framework for Access to Justice in the Federal Civil Justice System
  • progressing work on the Clearer Laws initiatives to develop practical measures to improve the clarity and accessibility of Commonwealth legislation
  • implementing Australia’s Human Rights Framework
  • providing advice on international human rights law and its domestic implementation to a wide range of Government agencies
  • facilitating constructive engagement by the Government with both the international and domestic human rights communities through Australia’s Universal Periodic Review before the United Nations Human Rights Council
  • participating in the development of international human rights law, including the draft Third Optional Protocol to the Convention on the Rights of the Child
  • implementing key initiatives under the National Partnership Agreement on Legal Assistance Services, focusing on developing a more strategic approach to service delivery, including an increased focus on early intervention and prevention services, and
  • providing additional funding of $7.9 million to Aboriginal and Torres Strait Islander Legal Services (ATSILS) to increase service delivery in response to rising demand. Consultation with ATSILS on new service agreements from 1 July 2011 was completed successfully.

Major achievements

Access to justice

Civil Dispute Resolution Act 2011

The Civil Dispute Resolution Act 2011 is consistent with the Federal Government’s Strategic Framework for Access to Justice in the Federal Civil Justice System and implements key recommendations from the National Alternative Dispute Resolution Advisory Council report, The resolve to resolve – embracing ADR to improve access to justice in the federal jurisdiction. The Act seeks to improve access to justice by focusing on the early resolution of disputes and encouraging parties to take ‘genuine steps’ to resolve their dispute before proceedings are commenced in the Federal Court of Australia or the Federal Magistrates Court.

Civil justice roundtable

In November 2010, Federal Civil Justice System Roundtable was convened – an opportunity for the Attorney-General and the Department to consult stakeholders about their ‘big ideas’ for future reforms in the Australian civil justice system. A wide range of stakeholders from across the federal civil justice system participated, including chief justices, representatives from the courts, academics, small business, legal advice and assistance, dispute resolution, community support services and other organisations representing people who use the justice system.

Better evidence base for the civil justice system

The Department commenced work on a long-term project to support the Strategic Framework for Access to Justice in the Federal Civil Justice System, titled Building a Stronger Civil Justice System – Data, Evaluation and Research for Evidence Based Policy and Better Programs. The project aims to foster the development of a solid evidence base to:

  • demonstrate the value that the civil justice system delivers to the Australian community, and
  • inform future civil justice policy and program reforms and enhancements in the delivery and management of services.

Stakeholder endorsement for the project was provided at a symposium convened by the Department on 16 May 2011. The Department also established a reference group of data and research experts to provide guidance on the project.

Clearer Commonwealth laws

During April and May 2011, the Department worked with the Office of Parliamentary Counsel to introduce a package of initiatives approved by the Attorney-General to improve the clarity and reduce the complexity of Commonwealth laws. This included:

  • a Quick reference guide to developing clearer laws, which provides a simple overview of key principles, tips and essential points of contact to assist departmental officers involved in developing legislation
  • a scheme which enables drafters and instructing officers to work together to reduce complexity when drafting legislation, and
  • the Clearer Laws website <http://www.ag.gov.au/LegalSystem/ReducingTheComplexityOfLegislation/Pages/default.aspx>, which is a central repository for resources, training material and key Government contacts to guide instructing officers in developing clearer laws.

The Department also progressed a number of legislative amendments to improve the accessibility of Commonwealth laws. The Statute Law Revision Bill 2011 was passed by Parliament on 3 March 2011 and the Acts Interpretation Amendment Bill 2011 was also passed by Parliament on 15 June 2011.

Journalists’ privilege

The Attorney-General supported the introduction and passage of the Evidence Amendment (Journalists’ Privilege) Bill 2010, a Private Member’s Bill introduced by Mr Andrew Wilkie MP. The Bill was passed by Parliament on 21 March 2011 and commenced on 13 April 2011. During the development of the draft Bill, the Department played a central role in ensuring that it was consistent with the Government’s objectives and existing evidence laws. The legislation is based on protections in New Zealand legislation and strengthens journalist shield laws by providing a presumption that a journalist is not required to give evidence that would disclose the identity of the source of their information.

Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010

On 25 November 2010, Parliament passed the Service and Execution of Process Amendment (Interstate Fine Enforcement) Bill 2010 in to law. This Bill implements a 2007 decision of the Standing Committee of Attorneys-General to establish a framework that facilitates the mutual recognition of court-imposed fines between States and Territories according to the laws of the jurisdiction in which the offender resides. The amendment removes from the Service and Execution of Process Act 1992 measures that provided for the enforcement of such fines by way of apprehension and imprisonment. The new framework enables the States and Territories to enforce each other’s court-imposed fines using their alternative, less punitive, sanctions.

Judicial complaints handling

The Department has developed significant reforms to introduce greater transparency and accountability in judicial complaints handling in the Federal Courts. On 18 March 2011, the Attorney-General announced reforms which include a mechanism to assist Chief Justices of the Federal  Court and the Family Court and the Chief Federal Magistrate to manage complaints about judicial officers that are referred to them. The mechanism will provide a structured system for complaints handling and provision for a head of jurisdiction to establish a committee to investigate a complaint and report in cases that warrant further inquiry.

The reforms were developed in close consultation with the Federal Courts and with the support of the Chief Justices of the Federal Court and the Family Court and the Chief Federal Magistrate.

The Attorney-General also announced the Government’s intention to re-introduce the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill into Parliament. The Bill will provide a clear, accountable and objective framework for the rare circumstance where Parliament is required to consider the removal of a judge under section 72(ii) of the Constitution.

Migration

In December 2010, the Department made an important contribution to advising the Government about potential implications for judicial review and Federal Court workload arising from the High Court’s decision in M61 & M69/2010 v Commonwealth. On 7 January 2011, the Minister for Immigration and Citizenship announced a review of judicial review processes for irregular maritime arrivals and the Government’s intention to appoint two additional federal magistrates as part of its response to the High Court’s decision.

The additional magistrates will assist the Federal Magistrates Court to manage migration cases including an anticipated increase in applications for judicial review as applications for refugee status by irregular maritime arrivals are processed. The appointment of the additional magistrates is expected to occur early next financial year. The Department continues to monitor issues arising in the context of judicial review applications by irregular maritime arrivals and the migration caseload of the Federal Courts.

Dispute resolution

Promotion of more strategic government dispute resolution

The Department supports the National Alternative Dispute Resolution Advisory Council (NADRAC) – an independent body responsible for providing alternative dispute resolution policy advice to the Attorney-General and promoting alternative dispute resolution. The Department organised NADRAC’s Fourth National Alternative Dispute Resolution Forum which was held at Griffith University in Brisbane on 16 and 17 July 2010. More than 130 delegates from across Australia and overseas attended the Forum, including researchers, practitioners, funding providers, representatives from courts and tribunals, and policy developers from federal, State and Territory governments. It provided an opportunity to raise the awareness of alternative dispute resolution by showcasing areas of current research and encouraging future study in the field.

In September 2010, NADRAC delivered its dispute management framework to the Attorney-General, Managing disputes in Federal Government agencies: essential elements of a dispute management plan and an accompanying toolkit for developing a dispute management plan. This framework has been widely disseminated to all Commonwealth agencies. The Department, in collaboration with NADRAC, participated in an information session on strategic dispute management on 8 June 2011 to educate Commonwealth agencies on the advantages of better dispute management and encourage more strategic dispute management plans that focus on early resolution. This initiative is consistent with the Government’s Access to Justice Framework and is an important part of its commitment to ensuring legal services expenditure is targeted and represents value for money.

Alternative dispute resolution integrity and principles reports

In February 2011, NADRAC also released a comprehensive report, Maintaining and enhancing the integrity of ADR processes: from principles to practice through people. This report canvassed how the issues of conduct obligations, confidentiality, inadmissibility and practitioner immunity affect the integrity of alternative dispute resolution processes. The Department is currently considering its recommendations.

In April 2011, NADRAC provided the Attorney-General with its National principles for resolving disputes and the Dispute resolution guide. The aim of the national principles and the guide is to promote and raise the awareness of alternative dispute resolution methods, encourage the consistent use of alternative dispute resolution terms and support best practice in alternative dispute resolution.

All of NADRAC’s publications are available at <https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx>.

Family law

The Department continues to make significant progress in implementing a family law system which will contribute to a safer society. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, which aims to combat family violence and child abuse, was introduced into the House of Representatives on 24 March 2011 and passed on 30 May 2011. If enacted, the Bill will change the definitions of ‘family violence’ and ‘abuse’ to better capture harmful behaviour, prioritise the safety of children, remove disincentives to disclosing family violence, strengthen adviser obligations, and make it easier for State and Territory child welfare authorities to participate in family law proceedings where children are at risk. The Senate Committee on Legal and Constitutional Affairs is conducting an inquiry into the Bill and is expected to report later in 2011.

In 2010–11, the Department acted swiftly to ensure greater certainty within the family law system. On 17 December 2010 the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 commenced. This Act responds to a decision by the High Court of Australia in MRR v GR [2010] HCA 4 which cast doubt on a range of parenting orders made or purportedly made under provisions inserted in the Family Law Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The Act provides parents with greater certainty about the validity of their parenting orders without removing important appeal rights. The Act also amended the Family Law Act to ensure that when dealing with agreed parenting arrangements, family courts are not required to observe the same detailed range of considerations as in disputed children’s matters.

The Department also continues to develop new approaches to family dispute resolution to help families resolve their disputes outside the courts wherever possible. A pilot of a new model of coordinated family dispute resolution has been designed for use where there is family violence. Pilots commenced from late 2010 across five sites (Brisbane, Western Sydney, Newcastle, Perth and Hobart) and are expected to conclude in April 2012. They are being independently evaluated.

During the past two years the Department has provided significant input as part of a number of
multi-nation strategies to encourage Japan to join the Hague Convention. This has included the provision of high-level advice to Australian Government representatives in Tokyo, participation in a symposium of Convention experts to share their experiences with the Japanese Government and legal fraternity in implementing the Hague Convention, and responding to a number of detailed questionnaires from the Japanese Government. In May 2011 the Japanese Government confirmed that it aims to sign the Convention by the end of the year. This decision will ensure that Australian parents will have recourse to the Department’s assistance under the Hague Convention for the return of children wrongfully removed or retained in Japan.

The Department provides support to the Family Law Council, a statutory authority established under section 115 of the Family Law Act 1975 to advise and make recommendations to the Attorney-General in areas relating to family law. During the year, the Council provided the following advice and recommendations either of its own motion or at the request of the Attorney-General:

  • 17 September 2010 – a submission commenting on NADRAC’s issues paper of July 2010 which addressed ‘confidentiality, admissibility, practitioner immunity and conduct obligations in ADR processes’
  • 12 October 2010 – a letter of advice to the Attorney-General in relation to confidentiality and inadmissibility in the Family Law Act to deal with family violence and child abuse
  • 16 December 2010 – advice to the Attorney-General on a departmental discussion paper in relation to proposed enhancements to family dispute resolution
  • 14 January 2011 – a submission to the Attorney-General that supported the policy direction of the exposure draft of the Family Law Amendment (Family Violence) Bill 2010. The Council also provided a submission to the Legal and Constitutional Affairs Legislation Committee on 27 April 2011
  • 14 March 2011 – a letter of advice to the Attorney-General in relation to a reference issued by the Attorney-General in November 2010 on international parental child abduction, and
  • 3 June 2010 – a letter of advice to the Attorney-General about the possible effect of a ruling in the matter of Rastall and Ball [2010] FMCA Fam 1290 regarding the application of section 10H and 10J of the Family Law Act. The Government is currently considering this advice in developing legislation for enhanced family dispute resolution, conciliation and arbitration for children, property and spousal maintenance matters.

The Family Violence Prevention Legal Services Program had further funding of $1.142 million approved for seven early intervention and prevention projects across Australia during the year. This funding will allow the projects to continue into 2011–12, helping to raise community awareness about family violence and promote positive strategies to help people who are exposed to such violence. The projects will work with communities and in schools to raise awareness about the issue, increase the resilience of children and others exposed to family violence and promote positive strategies to achieve change. The grants range from $45,000 to $330,000 and will assist communities in rural and remote locations.

Marriage celebrants program

The Department continued its program of reform to the Australian Government marriage celebrants program during 2010–11. A comprehensive review of existing processes was completed to identify and implement new efficiencies. Related work to redevelop the data management system underpinning the program has commenced. Other developments underway to improve the professionalism of marriage celebrants include the announcement of a reform measure in the 2010–11 Budget for the introduction of a registration fee from 1 July 2013, which will enable better regulation of celebrants registered under the program. Following a surge before the introduction of a new minimum qualification in February 2010 (Certificate IV in Celebrancy or equivalent university qualification), there has been a significant reduction in the number of new applications for registration.

During 2010–11, 538 marriage celebrant applications were processed and 242 marriage celebrants were registered. Performance reviews were completed in relation to 605 celebrants.

Intercountry adoption

The Department continues to facilitate a consistent national approach to intercountry adoption processes and service delivery in Australia. Through various domestic and international initiatives, work is being undertaken to improve the integrity of intercountry adoption programs to ensure they are ethical and viable.

The Department has also played an important leadership role in the development of cooperative measures at the international level to improve procedural safeguards and protections for children. A major outcome of the June 2010 Hague Special Commission meeting on intercountry adoption was the recommendation that Australia coordinate an informal working group to develop forms of cooperation aimed at preventing and addressing specific issues of malpractice in the context of intercountry adoption.

The Department regularly meets and works in cooperation with State and Territory colleagues in various human and community service departments, and with the National Intercountry Adoption Advisory Group, to provide quality service to prospective adoptive parents and to ensure the best interests of children is always paramount.

Human rights

Human Rights Framework

The Australian Government and Non-Government Organisation Forum on Human Rights was held on 22 June 2011. This was the second combined Attorney-General and Minister for Foreign Affairs and Trade human rights forum.

The Government has been preparing a draft national action plan on human rights including a baseline study of human rights issues in Australia. Both will be released in 2011–12.

Human Rights Framework grants program

In 2010–11, 15 grants were awarded under Australia’s Human Rights Framework – Education Grants to develop and deliver human rights education programs across the community. More grants will be awarded in 2011–12.

Sex Discrimination Act amendments and a new Age Discrimination Commissioner

The Sex and Age Discrimination Legislation Amendment Act 2011, which was developed by the Department, was passed by the Australian Parliament on 24 May 2011 and commenced on 20 June 2011. It strengthens the Sex Discrimination Act 1984 by:

  • establishing breastfeeding as a separate ground of discrimination
  • providing greater protection from sexual harassment for students and workers
  • strengthening the protections from discrimination on the grounds of family responsibilities for both women and men in all areas of work, and
  • applying protections from discrimination equally to women and men.

The legislation also creates, for the first time at the federal level, a standalone position of Age Discrimination Commissioner in the Australian Human Rights Commission. The Age Discrimination Commissioner will work with stakeholders to tackle the attitudes and stereotypes that can contribute to age discrimination, particularly in the workplace, and will advocate for the rights of people who experience age discrimination.

On 1 May 2011 the operative provisions of the Disability (Access to Premises-Buildings) Standards 2010 commenced. Together with complementary amendments to State and Territory building regulations, the standards provide a consistent regime for disability access to buildings. As buildings are constructed and upgraded, the standards will improve the capacity of people with disability to carry on their life within the community.

Legal assistance

The National Partnership Agreement on Legal Assistance Services came into effect on 1 July 2010 for a period of four years. 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, 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.

Under the Agreement, the Australian Government will provide States and Territories with more than $785 million over four years to deliver Commonwealth legal aid services. This includes $92.3 million in additional legal aid funding, announced in the 2010–11 Budget

The Legal Aid Program is working to implement key initiatives under the Agreement, including working with States and Territories to establish forums to consider opportunities for better coordination and targeting of legal assistance services in each State and Territory. The Department is also working with States and Territories and legal aid commissions on reporting against the performance benchmarks established by the Agreement.

The National Legal Assistance Advisory Body was established and the inaugural meeting was held in May 2011. The Body will provide advice to the Government on the best way to deliver legal services to disadvantaged Australians and to help keep the justice system relevant to the community it serves.

In January 2011, the Australian Government provided an additional $200,000 to help ensure Queenslanders affected by the floods crisis had ready access to legal information and advice. This additional funding helped families access early and accurate information and advice and helped prevent legal problems from becoming more complicated as people start to rebuild their lives.

During the year, the Department reviewed its financial assistance programs to identify opportunities for streamlined administration and improved processing efficiencies. This included the launch of a pilot program, applying streamlining efficiencies to the administration of two schemes funding native title respondents. The process is continuing to apply the Lean Six Sigma streamlining principles to all 26 schemes administered by the Financial Assistance Section.

The Indigenous Legal Assistance and Policy Reform Program delivers culturally sensitive legal assistance and related services to Indigenous Australians so they can fully exercise their legal rights as Australian citizens. The Program helps deliver a coordinated, long-term and multi-jurisdictional approach to reduce the incidence of Indigenous Australians’ adverse contact with the justice system. Funded Aboriginal and Torres Strait Islander Legal Services (ATSILS) achieve this by working with other Indigenous and non-Indigenous service providers. In 2010–11, additional funding of $7.9 million was provided to ATSILS to meet the rising demand for its services. Consultation with ATSILS on new service agreements from 1 July 2011 was also completed successfully.

The Commonwealth Community Legal Services Program funds 139 community-based, independent and non-profit organisations (community legal centres) to provide assistance to people on low incomes and those with special needs or whose interests should be protected as a matter of public interest. Community legal centres provide assistance on legal and related matters, such as family law, domestic violence, consumer credit and tenancy. The program provides funding for generalist as well as specialist community legal services. Specialist services include those that provide assistance for particular target groups, such as women or youth and children, and services in areas of law such as environmental law and welfare rights. In the 2010–11 Budget, the program was allocated additional funding of $26.8 million over four years to help improve access to justice in the community.

Indigenous justice

Work is continuing across government to develop an Aboriginal and Torres Strait Islander Safe Communities Strategy, building on three existing national frameworks on law and justice, child protection and violence. The aim of the Strategy is to ensure Aboriginal and Torres Strait Islander individuals and families are safe in their families and communities. Actions under the strategy will be interlinked with the actions being taken by Australia’s governments – in collaboration with Aboriginal and Torres Strait Islander leaders and individuals – to realise the broader Closing the Gap agenda.

The Department has also been significantly involved in the implementation of the remote service delivery (RSD) national partnership agreement. Working in collaboration with the Office of the Coordinator General for Remote Indigenous Services, the Department has played a lead policy role in promoting safety planning processes that have community engagement as their focus. These have been employed by the Mount Isa regional operations centre as it works with communities to develop safety plans in Doomadgee and Mornington Island. A strong foundation for ongoing engagement on multiple initiatives has been established as part of this process. It is expected that this methodology will inform work in other RSD communities where community safety plans have been identified as a priority.

Native title

Legislative reforms

The Native Title Amendment Act 2009 came into force on 18 September 2009 and is designed to facilitate quicker, more flexible settlements of claims, and give the Federal Court a central role in managing native title claims. In response to the reforms, the Court developed a priority case list in July 2010, which was finalised and released on 18 October 2010, and adopted intensive case management practices. Since these initiatives were introduced, there has been a notable increase in the number of native title claims resolved through consent determination and the Court has made substantial progress in finalising cases on its priority list, providing faster and improved outcomes for Indigenous people, and certainty for other land users. During 2010–11, the Department worked closely with the Court and the National Native Title Tribunal to support and monitor implementation of the 2009 reforms.

Native title litigation

Justice Finn of the Federal Court handed down reasons for his decision in the Torres Strait regional sea claim on 2 July 2010, with final orders made on 23 August 2010. The Federal Court found largely in favour of the applicant, and recognised non-exclusive native title rights to access certain sea areas and take resources (excluding minerals and petroleum) from those areas for any purpose.

The Australian Government has appealed the finding that the native title right to take resources for commercial purposes had not been extinguished. The native title holders have cross-appealed the Court’s findings in respect of the geographic extent of native title, reciprocity-based rights, and the relationship between native title rights and certain public and customary rights. The Full Federal Court heard arguments on the appeal and cross appeal from 16 to 18 May 2011. Judgment on the appeals is yet to be delivered.

Future acts and agreement making

The Department provided legal and policy advice on a range of Australian Government projects during the year, including the negotiation of an Indigenous Land Use Agreement as part of Australia’s international bid to host the Square Kilometre Array Project, the proposed Liquid Natural Gas Hub in the Kimberley region of Western Australia and the Carbon Pollution Reduction Scheme. The Department also continued 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.

Native Title Anthropologist Grants Program

The Department announced the Native Title Anthropologist Grants Program on 28 May 2010. The Program will provide $1.4 million in grants over the first three years through annual funding rounds. It seeks to attract a new generation of junior anthropologists to native title work and encourage senior anthropologists to remain within the system. The successful recipients in the 2010–11 funding round were the Australian National University School of Archaeology and Anthropology, and ANU Enterprise. Applications opened for the 2011–12 funding round on 24 February 2011 and recipients were announced on 3 June 2011 at the Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS) National Native Title Conference. Successful recipients for the second round of funding in 2011–12 are the Australian National University School of Archaeology and Anthropology, The Cairns Institute, The University of Adelaide (two projects) and the University of Sydney.

Governance of native title agreements and sustainable benefits management

In July 2010, the Attorney-General and the Minister for Families, Housing, Community Service and Indigenous Affairs, Jenny Macklin MP, released the discussion paper Leading practice agreements: maximising outcomes from native title benefits. The paper canvassed potential reforms that would go towards improving native title agreements and the governance of native title payments. The paper formed the Government’s initial response to the governance workshop convened by the Joint Working Group on Indigenous Land Settlements in April 2010, and also complemented the Native title, Indigenous economic development and tax consultation paper, released in May 2010 by the Assistant Treasurer (re-released in October). The Department, the Department of Families, Housing, Community Service and Indigenous Affairs and the Treasury held consultations on both papers in capital cities in July and November 2010, and received a number of written submissions on each. The Government is now considering these.

Indigenous economic development

The Department is actively engaged in policy development initiatives to enable Indigenous Australians to leverage economic development opportunities from their native title rights and interests, including in remote communities, by removing barriers to economic growth in regional areas. Native title settlement agreements can also contribute to improvements in Indigenous economic participation by building the economic base (for example through employment provision and expanding the Indigenous estate) and facilitating economic opportunities (for example through training, employment and business development opportunities for native title holders and their communities).

The Department has contributed to the Government’s Indigenous Economic Development Strategy (IEDS). IEDS features native title, and the potential for native title, to contribute to Indigenous community development, as a significant mechanism for enhancing economic development in Indigenous communities.

Native title system coordination and consultation

The Department continued to liaise regularly and strengthen relationships with stakeholders to maintain an equitable and just native title system. This was achieved by providing policy advice, coordination and secretariat support to diverse forums, ranging from whole-of-government committees on Indigenous affairs, to cross-jurisdictional and system-wide working groups.

In 2010–11, the Department supported two meetings of the Joint Working Group on Indigenous Land Settlements by facilitating engagement with State and Territory counterparts, one meeting of the Native Title Consultative Forum (a peak group of government, industry and Indigenous representatives) and two meetings of the Native Title Coordination Committee, which is made up of Commonwealth agencies with responsibilities for native title.

The Department also supported and participated in a number of forums to increase stakeholder dialogue, research and professional development within the native title system. For example, the Department provided financial assistance to and participated in the annual AIATSIS National Native Title Conference in June 2011 and engaged with Indigenous stakeholders through presentations to Native Title Representative Body forums and through regular meetings with the National Native Title Council.

Federal courts and tribunals

Legislative developments

The Department has continued to work collaboratively with the Department of Defence to establish a permanent solution for the military justice system. The Military Court of Australia Bill 2010 lapsed due to the 2010 election and the Government has announced its intention to reintroduce the Bill.

The Department has also continued work with Federal Courts and key stakeholders on improving the Federal Court system and access to justice for litigants. The Access to Justice (Family Court Restructure) Bill lapsed in 2010 due to the 2010 election and the Government intends to also reintroduce this Bill.

Court fees

The Department has implemented changes to fees in the Federal Courts and the Administrative Appeals Tribunal to offset a $154 million funding injection into legal assistance programs over four years. Court fees have a range of functions, including recovering costs and sending appropriate price signals to potential litigants to ensure that parties consider all appropriate options to resolve disputes. Encouraging litigants to consider alternatives to litigation is consistent with the Government’s Strategic Framework for Access to Justice in the Federal Civil Justice System.

Fee increases, including new tiered hearing fees in the Federal Court and new fees for consent order applications, were implemented on 1 July 2010. Further changes commenced on 1 November 2010 to replace certain fee exemptions and fee waivers with reduced fees where payment of the full fee would cause financial hardship. Courts also have the power to defer fees in an emergency or where it is warranted as a result of the person’s financial circumstances, and to waive fees in subsequent proceedings where a disadvantaged person may need to commence or respond to multiple proceedings in a short period of time.

Family law fee validation

The Department has been involved in the family law fee validation aspect of the Trans-Tasman Proceedings Amendment and Other Measures Bill, which was introduced in 2011. The Bill contains technical measures to retrospectively validate fees charged for de facto financial proceedings under the Family Law Act 1975 in the Family Court of Australia, and certain State and Territory courts. The measures in the Bill correct an anomaly in the application of the fee provisions of the Family Law Regulations 1984 and ensure that the fees applying to de facto financial proceedings are the same as those applying to matrimonial financial proceedings and parenting matters in the relevant period.

Funding for National Judicial College of Australia

In 2010–11, the Attorney-General provided $125,000 to continue the National Judicial College of Australia’s Indigenous Cultural Awareness Training program for judicial officers, as well as $8000 towards producing a DVD for use at the 2011 Judicial Leadership Program.

Appointments

In 2010–11, the Attorney–General and the Australian Government appointed two judges to the Federal Court of Australia, two to the Family Court of Australia and one federal magistrate to the Federal Magistrates Court. In addition, one existing Federal Court judge was also appointed as an additional judge to the Supreme Court of the ACT.

There were 33 appointments to the Administrative Appeals Tribunal in 2010 (15 judicial members and 11 members). Philip Kellow was appointed as the new Registrar on 8 July 2010.

Case work

The Department has been responsible for instructing counsel on behalf of the Commonwealth in proceedings before the County Court of Victoria in Geelong. The plaintiffs’ proceedings involved issues of standing and Federal Court jurisdiction. The Court entered judgment for the Commonwealth against the plaintiffs, with the plaintiffs ordered to pay the Commonwealth’s costs.

Administrative law

Two Commonwealth Administrative Justice Forums were held during the year to bring decision making agencies together to share information, discuss issues of common concern and help find solutions.

The Administrative Law Policy Guide was developed and published. It responds to agency feedback from the Commonwealth Administrative Justice Forums. The Guide summarises the key features an administrative decision making framework should include and cites useful Administrative Review Council documents. The Guide is expected to have a flow-on effect to primary decision making, because enhanced decision making frameworks support improvements to the quality of primary decisions.

The Department also provides secretariat support for the Administrative Review Council. The Council is currently examining the federal system for judicial review of administrative action with a view to reporting to the Attorney-General by the end of 2011 on possible future directions. This inquiry is being conducted by the Council of its own motion in accordance with its statutory functions under section 51 of the Administrative Appeals Tribunal Act 1975.

Personal property securities

The Department made significant progress on the reform of personal property securities (PPS) and PPS legislation and Regulations were finalised during the year. The Personal Property Securities (Corporations and Other Amendments) Act 2011 was passed in June 2011, which was the final piece of Commonwealth legislation necessary to support the new national PPS system. The Department continued to work with the States and Territories in developing consequential legislation, with most passing the legislation required to give effect to PPS reform.

In February 2011, a significant milestone was achieved towards developing a single, national, online PPS register with the release of a ‘discovery environment’. This website provides stakeholders direct access to the new register as it is being developed to allow business and process planning. More than 170 account customers and business-to-government clients have started transacting with the discovery environment since it was made available. The discovery environment has three official planned releases before the production release, and each new release will increase the functionality available. The discovery environment has enabled stakeholders to familiarise themselves with the register before it goes live and increased the register’s robustness and acceptance.

The Department continued to work closely with stakeholders in the banking, finance and information broking industries to help develop their systems, internal processes and planning in preparation for the start of the PPS system.

A national education roadshow was undertaken targeting small to medium businesses and regional Australia. The objectives of this initiative were to engage with stakeholders, provide relevant tailored information, raise awareness of the reform, ensure stakeholders were ready and encourage use of the new PPS register. More than 75 locations were visited and more than 1500 people were reached from a variety of industry sectors. The roadshow was a precursor to a national public awareness campaign to be delivered in 2011–12 and will include radio, online and print advertising to support the start of PPS reform.

The Department has continued working with the Insolvency and Trustee Service Australia and key stakeholders to ensure a seamless transition of operational responsibility for the register.

Personal insolvency

The Attorney-General and the Parliamentary Secretary to the Treasurer jointly released an options paper on 2 June 2011 seeking views about improving the regulation of both the corporate and personal insolvency professions.

The release of this paper followed a report by the Senate Economics References Committee on 14 September 2010 into ‘the role of liquidators and administrators, their fees and their practices, and the involvement and activities of the Australian Securities and Investments Commission, prior to and following the collapse of a business’. The inquiry was established in response to concerns raised about the effectiveness and timeliness of the operation of the regulatory regime for corporate insolvency.

The paper canvasses reforms with a view to addressing possible misconduct in the insolvency profession, improving value for money for creditors and debtors as well as enhancing public confidence in the insolvency system. Its focus is that the framework for insolvency practitioners:

  • promotes a high level of professionalism and competence by practitioners
  • promotes market competition on price and quality
  • promotes increased efficiency in insolvency administration, and
  • enhances communication and transparency between stakeholders.

Submissions have been sought on the proposals and the Government will consider these for expected introduction of amending legislation in Autumn 2012.

Regulation of the legal profession

The National Legal Profession Reform Taskforce lodged its final proposed Legal Profession National Law, national rules and accompanying package with the Council of Australian Governments in 2010–11. This package has been revised in a number of key areas to reflect stakeholder submissions received during a public consultation period. It was published shortly after being lodged.

The final package 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 principles-based approach, and
  • efficient and effective national regulation.

At its meeting on 13 February 2011, the Council of Australian Governments supported the reforms and, with the exception of Western Australia and South Australia, agreed in principle to settle reforms to legal profession regulation by the end of May 2011. In accordance with this decision, the Attorney-General oversaw the final revision of the legislative package and the lodgement of a final suite of reforms which meet the Council of Australian Governments’ objectives and which will satisfy the majority of stakeholders.

With a host jurisdiction to be selected in early 2011–12, the reform will move to the participating States and Territories. It is expected that the enacting legislation will begin passing through jurisdictional parliaments by the end of 2011.

Copyright

The Electronic Transactions Amendment Bill 2011 was passed by the Parliament on 10 May 2011 and received Royal Assent on 25 May 2011. The new Act implements the model amendment provisions developed and approved by the Standing Committee of Attorneys-General. The amendments update the Electronic Transactions Act 1999 to ensure Australia’s electronic transactions laws keep pace with technological change and international standards. They will also align Australia’s uniform Electronic Transactions Acts with the United Nations Convention on the use of Electronic Communications in International Contracts 2005. Once the amendments have been enacted in all jurisdictions, the Government will move to accede to the United Nations Convention.

Negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) concluded with the final text being agreed by all parties on 3 December 2010. ACTA is the first plurilateral agreement that establishes a new standard of intellectual property enforcement to combat the high levels of commercial scale trade in counterfeit and pirated goods worldwide. It will lead to better protection from pirating and counterfeiting for industries that rely on intellectual property rights, as well as for creators and consumers.

As a result of the Government’s responses to the Gershon information and communications technology review, the Department revised the Statement of IP Principles to include Principle 8(a), which altered the default position in information and communication technology contracts so the supplier, rather than the Australian Government, retains intellectual property ownership. The new Principle also includes a list of exceptions where it is in the public interest for the Commonwealth to own intellectual property in the software. It came into effect from 1 October 2010.

The Department continues to participate in international negotiations in the World Intellectual Property Organisation (WIPO), particularly with respect to providing appropriate protection for traditional knowledge and traditional cultural expressions, and improving access to copyright materials for those with a visual impairment. A draft treaty on protection for audiovisual performers was finalised with Australia’s support and will be considered by a WIPO Diplomatic Conference in 2012.

Classification

On 7 June 2011, the Department held the Classification Enforcement Contacts Forum. State and Territory law enforcement representatives, the Australian Communications and Media Authority and the Australian Customs and Border Protection Service discussed enforcement activities and challenges in relation to classification laws. The Australian Law Reform Commission, which is conducting a review of the National Classification Scheme, also attended.

The Classification Liaison Scheme is a joint State, Territory and Federal Government initiative aimed at improving industry compliance with classification laws. In 2010–11 Classification Liaison Scheme staff conducted 917 compliance checks across a range of retail premises in capital cities and regional and rural centres. Where possible breaches of classification laws were identified, companies were given information about how to comply, while serious breaches were referred to the relevant law enforcement agency. More than 115,000 brochures about classification requirements were distributed to retailers across Australia.

International law

The Department has provided advice to advance Government initiatives with an international law element, including:

  • Australia’s overseas deployments to Afghanistan, Solomon Islands and Timor-Leste, including rules of engagement, status of forces, immunities and other operational issues
  • implementing sanctions, including those against Iran
  • maritime security, including people smuggling
  • climate change
  • law of the sea issues, including those concerning fisheries and petroleum
  • implementing measures to improve environmental protection for Antarctica
  • privileges and immunities of foreign States
  • the National Broadband Network
  • air services agreements, and
  • Australia’s human rights obligations under international law.
Law of the sea and international environmental law

The Department participated in a range of international negotiations, including the development of a protocol to the Convention on Biological Diversity to provide access and benefit sharing arrangements regarding genetic resources, development of a legal regime to regulate ocean fertilisation activities, negotiations to increase the limits of liability for pollution incidents from shipping, negotiations within the International Whaling Commission and the development of several regional fisheries agreements.

The Department also drafted Australia’s submission to the International Tribunal for the Law of the Sea in connection with a request from the International Seabed Authority for advice on the extent of a sponsoring State’s liability for seabed mining beyond national jurisdiction.

International security law

The Department participated in, and provided legal advice to, the Australian delegation to the Review Conference of the Rome Statute of the International Criminal Court held between May and June in 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.

The Department led development of the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. This Bill will ensure that Australian domestic law is consistent with the Convention on Cluster Munitions and gives effect to the Convention’s requirement for States parties to impose penal sanctions for conduct prohibited by the Convention.

The Department also led negotiation for amendments to key aviation security conventions, including the adoption of new counter-terrorism offences, and acted as Special Rapporteur during the negotiations.

International trade law

Legal and international legal policy advice was provided on various free trade agreements under negotiation. In particular, the Department worked closely with the Department of Foreign Affairs and Trade in negotiating the Trans-Pacific Partnership Agreement with eight other countries, as well as free trade agreements with China, Japan, Korea and Malaysia. Advice was provided on a range of chapters of these agreements, including those on investment, intellectual property, services, and institutional and process arrangements.

The Department also worked with the Solicitor-General and the Department of Foreign Affairs and Trade in presenting Australia’s case to the Appellate Body of the World Trade Organization in the Australia – measures affecting the importation of apples from New Zealand matter.

International human rights law

Australia completed its first Universal Periodic Review (UPR) in 2011. The Review is set up by the United Nations Human Rights Council to monitor compliance with international human rights obligations. It aims to improve human rights in all countries and address human rights violations wherever they occur.

The Department coordinated Australia’s involvement in the Review process throughout 2010–11, which included preparing and submitting Australia’s National Report for the Universal Periodic Review to the United Nations on 18 October 2010, Australia’s appearance at the 10th Universal Periodic Review Session of the United Nations Human Rights Council in Geneva on 27 January 2011, consulting within Government, with States and Territories, and other stakeholders on the Review recommendations, and preparing Australia’s response to the recommendations, which was lodged on 27 May 2011 and formally adopted by the Human Rights Council on 8 June 2011 in Geneva. Australia accepted, in full or in part, almost 95 per cent of the 145 recommendations.

International litigation

The Department leads Australia’s anti-whaling case in the International Court of Justice, which seeks to bring an end to Japan’s whaling in the Southern Ocean. In May 2011, the Department filed Australia’s written submissions in the case. These set out the comprehensive legal arguments and detailed evidence to support these.

Legal services

The Department promotes and reports on compliance with the Legal Services Directions 2005, which provide a framework for delivering high quality legal services to the Australian Government and its agencies. The focus has been to ensure significant legal issues to the interests of the Commonwealth as a whole rather than just one agency.

To achieve this, the Department continues to progress reforms to the Commonwealth’s legal services procurement arrangements based on the recommendations of the Report of the review of Commonwealth legal services procurement by Mr Anthony Blunn AO and Ms Sibylle Krieger. As a follow-up, Lateral Economics was engaged in December 2010 to examine options to reform the procurement of legal services and how these might impact upon the functioning of these services. The Lateral Economics report, Learning from experience: purchasing legal services, was publicly released on 21 February 2011 and its recommendations are being considered.

The Attorney-General’s Significant Issues Coordination Committee was established in August 2010.

Compliance with the Legal Services Directions 2005

In 2009–10, the Attorney-General’s Department received notification of 43 possible breaches of the Legal Services Directions.  Those substantiated were mainly related to failure to provide a certificate of compliance within 60 days of the end of the financial year, failure to report legal services expenditure within 60 days of the end of the financial year, and failure to consult appropriately with other agencies (see Table 6).

In 2010–11, the Attorney-General’s Department received notification of 40 possible breaches of the Legal Services Directions. Those substantiated were mainly related to failure to provide a certificate of compliance within 60 days of the end of the financial year and failure to report legal services expenditure within 60 days of the end of the financial year (see Table 6).

Table 6: Investigation of possible breaches of the Legal Service Directions, 2009–10 to 2010–11

Year
Matters carried
forward
Established
breaches
Examined and found not to
involve breaches
Matters still under
investigation at year end
2009–10 16 24 30 5
2010–11 5 18 10 17
International promotion of Australian legal services

The Department is working with the International Legal Services Advisory Council (ILSAC) to implement legal cooperation initiatives and advance the interests of legal services, and legal education and training services, internationally. Some of the year’s significant achievements included:

  • implementing four law events at the Shanghai World Expo from 15 to 17 July 2010 in collaboration with the Department of Foreign Affairs and Trade, Austrade, the Law Council of Australia, the Council of Australian Law Deans and the Australian Centre for International Commercial Arbitration
  • working with the Department of Foreign Affairs and Trade to develop the Asia-Pacific Economic Cooperation (APEC) legal services website <www.legalservices.apec.org> which provides information on the requirements and procedures for practising foreign law across APEC economies
  • working with admitting authorities to improve the system for admission of overseas qualified lawyers in Australia, and
  • undertaking ILSAC’s third biennial international legal services statistics survey. In addition to providing detailed information on trends and key export markets, the survey estimated Australia’s total international legal services earnings at $709 million in 2008–09.

Legislative drafting and publishing

The Office of Legislative Drafting and Publishing has two main functions, one of which is drafting legislation other than Bills. In 2010–11, a team of 23 expert legislative drafters sent client agencies final drafts of 489 legislative and other instruments. The Office:

  • drafts all Regulations, Proclamations and Rules of Court
  • undertakes a range of other drafting projects for the Australian Government and, on occasion, for other governments as part of Australia’s international aid program
  • provides value for money for these other drafting jobs – rates are competitive with those charged by similar legal services providers, and
  • delivers a range of training to the Department’s staff as part of a commitment to professional development and to agency instructors.

The Office also publishes all Australian Government legislation, particularly through the ComLaw website at <http://www.comlaw.gov.au>.

Public use of ComLaw continues to increase, with about 7.5 million users visiting the site in 2010–11. Behind the scenes, a team of 50 registration staff, legislative editors, compilers and other staff continued to:

  • work with the Executive Council Secretariat and more than 70 separate agencies to register legislative instruments and other documents in accordance with the Legislative Instruments Act 2003
  • provide a central tabling and disallowance monitoring service, delivering an estimated 250,000 pages of material to the Parliament for scrutiny
  • track and publish the detail of relationships between Bills, Acts, legislative instruments and other important legislative material
  • prepare compilations of Acts and key legislative instruments as amended or otherwise changed, including some modified Western Australian laws that apply in the Indian Ocean Territories, and
  • publish legal notices in the Government Notices, Periodic and Special Gazettes on behalf of a wide range of public sector and other organisations.

Key achievements in 2010–11 included:

  • finalising major new civil aviation maintenance Regulations, and preparing further draft Regulations for public comment, through a joint taskforce with the Civil Aviation Safety Authority and the relevant policy department
  • drafting important legislative instruments in major areas of law reform, including national consumer credit protection, national business names registration, offshore petroleum, and greenhouse gas reform
  • releasing a faster and smarter version of ComLaw in January 2011, the culmination of three years of work by staff and in-house IT developers
  • publishing more than 260 Acts in authoritative form in line with new provisions of the Acts Publication Act 1905
  • tabling the first list of legislative instruments due to sunset under Part 6 of the Legislative Instruments Act, and
  • working on more than 23,000 ComLaw records to make the holdings of Commonwealth legislation more complete, searchable, and compliant with new accessibility standards.

Work on ComLaw features and content will continue in 2011–12, with key priorities being to make ComLaw more complete and more useful for those who need print copies of legislation or who are responsible for legislative instruments that may be sun setting.

Constitutional and key public law

The Department provided assistance and advice on constitutional policy and development, litigation and public law issues of federal significance. In particular, advice was provided on harmonisation of federal legal arrangements in the areas of vocational education and training, business names, personal property securities and consumer credit.

The Department remained pivotal in all questions of intervention by the Attorney-General in constitutional litigation. Staff prepared the Commonwealth’s case in a wide range of significant proceedings including, for example, the Dickson v R and Momcilovic v R challenges, which involved considering the relationship between Commonwealth and State criminal laws, and the Rowe v Electoral Commissioner challenge to electoral enrolment cut-off periods in the High Court. Other matters included the South Australia v Totani challenge to South Australian organised crime legislation and the Hogan v Hinch challenge to the Serious Sex Offenders Monitoring Act 2005 (Vic).

Microeconomic reform

The Department convened the Standing Committee of Attorneys-General Harmonisation Forum 2011 on 27 May, which was attended by several ministers, lawyers, business people, academics and senior officials from Australian jurisdictions. The Forum discussed several possible microeconomic reforms for the justice sector that could be advanced. The Standing Council on Law and Justice will consider the outcomes early in 2011–12 as part of its forward work plan on microeconomic reform.

Purchaser/provider arrangements

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

In 2010–11, the Boards received 6718 applications and made 6635 decisions. The estimated revenue for 2010–11 was $7.118 million with actual revenue of $6.151 million for the period.

The Australian Communications and Media Authority may apply to the 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 actions each financial year if the request relates to enforcing a law that complements the Classification (Publications, Films and Computer Games) Act 1995.

Evaluations/reviews

Review of the National Classification Scheme

The Senate Legal and Constitutional Affairs Committee conducted an inquiry into the classification of media content in Australia. The report, Review of the National Classification Scheme: achieving the right balance, was tabled on 23 June 2011. The Government is considering its response to the report’s recommendations.

Office of Legislative Drafting and Publishing

In 2010–11, Ms Rayne de Gruchy AM PSM reviewed the Office of Legislative Drafting and Publishing (OLDP) and found it was performing its core functions well. Ms de Gruchy recommended a closer relationship with the Office of Parliamentary Counsel (OPC), a separate statutory agency within the Attorney-General’s portfolio that drafts all government Bills. Implementation of the review recommendations is proceeding in consultation with OPC.

OLDP activities funded under the Pacific Public Sector Linkages Program were the subject of a separate review by Elliott Street Consulting Pty Ltd, which found that the Office provided high quality training to drafters from Pacific countries. The review recommendations are currently under consideration by AusAID, the agency which administers this funding program.

Outlook at 30 June 2011

The Department continues to implement initiatives under Australia’s Human Rights Framework released by the Attorney-General in April 2010. The Department is developing an education and training program for the Commonwealth public sector to raise awareness and understanding of Australia’s international human rights obligations.

Work on consolidating Commonwealth anti-discrimination laws is progressing, with exposure draft legislation to be released for consultation with stakeholders.

Further, the Department continues to provide legal advice on the domestic implementation of international human rights law. This work is expected to increase as a new scheme contained in the Human Rights (Parliamentary Scrutiny) Bills, currently before Parliament, commences.

The Department will continue to work on a new national action plan on human rights including producing a baseline study on human rights issues in Australia. In 2011–12, it will bring together a non-government organisation forum on human rights to be hosted by the Attorney-General and the Minister for Foreign Affairs.

Following the High Court’s consideration of the Australian Federation Against Copyright Theft’s application for special leave to appeal the Full Federal Court decision in Roadshow Films Pty Ltd v iiNet Limited, the Department will consider the broader policy implications for copyright, its illegal use, and the digital economy. The Government will consider a number of options if its preference for an industry-based solution is not achieved.

The Government will also provide the Australian Law Reform Commission with a reference on copyright in late 2011. The terms of reference may include examining the law in the context of the online environment and whether the correct balance exists between rights holders and the broader community.

In the year ahead, the Department will scope proposed reforms to clarify and update commercial contract law in consultation with other departments and stakeholders. It will also continue working with the Treasury on aligning personal and corporate insolvency laws and improving the effectiveness of the law that applied to debt agreements.

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

The Attorney-General has asked the Department and International Legal Services Advisory Council to produce a study identifying the key international markets for the Australian legal and related services sector.

The Department will continue to pursue reform in relation to the provision of legal services to the Government, particularly in progressing proposed reforms to the Commonwealth’s legal services procurement arrangements in light of the recommendations of the Report of the review of Commonwealth legal services procurement by Mr Anthony Blunn AO and Ms Sibylle Krieger.

The work of the Legal Aid Program will focus on working with States and Territories to implement key initiatives under the National Partnership Agreement on Legal Assistance Services and supporting the work of the National Legal Assistance Advisory Body. Key measures under the Agreement include jurisdictional forums to improve coordination and targeting of services between legal assistance service providers, and information and referral strategies to ensure comprehensive access to information and seamless referral.

New funding arrangements for the Indigenous Legal Assistance and Policy Reform Program have been negotiated and will come into effect on 1 July 2011. The last of the recommendations from the 2008 Office of Evaluation and Audit evaluation of relevant Indigenous programs will be implemented through the new arrangements. The changes provide Aboriginal and Torres Strait Islander Legal Services with more flexibility to define service delivery plans, goals and measures. Accountability measures will also be linked to risk, and the overall quality of the services will be enhanced through the implementation of a quality framework.

The Department will continue implementing the Government’s policy of a less technical and more flexible approach to resolving native title by reconsidering when and how the Government acts as a party to native title matters. The Government will continue to focus its involvement on resolving claims and issues of greater significance to the Government and the native title system as a whole, to maximise outcomes for all native title parties and provide faster resolution of native title claims.

In collaboration with other Government departments, and State and Territory Governments, the Department will focus on finalising the Aboriginal and Torres Strait Islander Safe Communities Strategy. The Department will also take a leading role in cross-agency work to prepare a response to the House of Representatives Standing Committee on the Aboriginal and Torres Strait Islander Affairs’ Doing Time – Time for Doing report into Indigenous youth and the criminal justice system, which was released in June.

In March 2011 the Australian Law Reform Commission commenced a review of the National Classification Scheme on the request of the Attorney-General. An issues paper was released on
20 May 2011 seeking submissions on the review’s terms of reference. The Commission is expected to report by 30 January 2012.

For 2011–12, key priorities for Program 1.1 include:

  • implementing a range of initiatives to promote access to justice
  • promoting measures to encourage early government dispute resolution, and
  • strengthening measures to reduce complexity in Commonwealth legislation.

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

 


Our people

Engaging with the international community on human rights

Translating international commitments to tangible actions

Australia recently completed its first Universal Periodic Review, a process set up by the United Nations Human Rights Council to monitor compliance with international human rights obligations. Each country undergoes a peer review process once every four years, submits a National Report, participates in an interactive dialogue in Geneva, and receives a set of recommendations.

‘The review process was an important opportunity to demonstrate the Australian Government’s commitment to engage with the international community on human rights,’ says Rowan McRae, a Senior Legal Officer in the Department’s International Human Rights Law Section.

‘But equally important was the chance it offered for constructive consultation with Australia’s domestic human rights community.

‘The biggest challenge in coordinating Australia’s review was ensuring adequate consultation with a broad range of stakeholders including other Australian Government departments, State and Territory governments, the Australian Human Rights Commission and non-government organisations.

‘It was a real highlight when our consultative approach was commended by many delegations from other countries at our interactive dialogue in Geneva.’

Australia received 145 recommendations from 53 countries covering issues such as the rights of asylum-seekers and Indigenous people. On 8 June 2011, Australia responded, agreeing to accept – or accept-in-part – 137 recommendations. This is a particularly high acceptance rate.

‘Our engagement with the review process doesn’t end with the submission of our response to the recommendations,’ says Rowan. ‘The response signals the beginning of a new phase of implementation through Australia’s new National Human Rights Actions Plan.

‘One of our biggest challenges is connecting up Australia’s international and domestic human rights processes. The Plan will provide a way for the international review to dovetail into a domestic policy process, translating international commitments into tangible actions.’


 

Performance results

Table 7: Performance results, Program 1.1

Key performance indicators Results
Implementation of recommendations from the Access to Justice Taskforce report Substantially achieved
Comment: The Government has adopted the Strategic Framework
for Access to Justice, which was the central recommendation
of the Access to Justice Taskforce report. Many of the report’s recommendations have already been or are being implemented, and implementation of other recommendations remains under consideration.
Improved access to justice Substantially achieved
Comment: The Government’s Strategic Framework for Access to Justice guides civil justice reforms to improve access to justice for all Australians. The Department continues to promote application of the principles and methodologies in the Framework, and implementation of the Access to Justice Taskforce report’s recommendations is ongoing. The Department has initiated a new project to build an evidence base to inform future policy and program decisions and assist in ensuring compliance with the objectives identified in the Framework.
The human rights of Australians at risk of social exclusion are protected and promoted and they have ready access to appropriate legal assistance services Partially achieved

Comment: The Australian Human Rights Framework – particularly measures in the Human Rights (Parliamentary Scrutiny) Bills – the consolidation project, and human rights education program, will help recognise the human rights of Australians.
A reduction in the complexity of laws Substantially achieved
Comment: The Government has developed a package of practical measures to improve the clarity and accessibility of Commonwealth laws, including a Quick reference guide to developing clearer laws, a scheme to address issues of complexity in draft legislation, and a Clearer Laws website. Amendments to the Acts Interpretation Act 1901, which will improve the accessibility and readability of Commonwealth laws, have also been passed by Parliament.

The National Legal Profession Reform Taskforce reported as required by the Council of Australian Governments with final legislation.

The personal property securities legislation and Regulations were finalised during the year.
Improved family and community safety for Indigenous Australians Partially achieved
Comment: Community and family safety for Indigenous Australians remains an area of considerable concern, however identifiable progress has been achieved in a number of areas including:
  • employing 12 community engagement officers in the Northern Territory
  • managing night patrols to 80 Northern Territory communities
  • providing $200,000 to support development of community safety plans in Doomadgee and Mornington Island, Queensland
  • funding initiatives designed to reduce re-offending under the Indigenous Law and Justice program, and
  • developing an Aboriginal and Torres Strait Islander Safe Communities Strategy.
Contribution to effective micro-economic reform Partially achieved
Comment: The Department continues to scope new opportunities for microeconomic reform in the law and justice sector, including through the Standing Council on Law and Justice and, at the Commonwealth level, in the area of contract law.

The National Legal Profession Reform Taskforce reported as required by the Council of Australian Governments with final legislation.

The Council also agreed to defer commencement of the reformed personal property securities regime to October 2011.
Clarity and certainty of advice on international law and legislation implementing international law Achieved
Comment: During the year, clear and constructive advice on international law and its domestic implementation was provided to a wide range of Government departments in the course of developing policy and legislation.

Australia also helped draft the new Third Optional Protocol to the Convention on the Rights of the Child.

The Department has played a prominent role in arguing for appropriate limits on extraterritorial application of US securities laws through an amicus brief to the US Supreme Court in the case of Morrision v National Australia Bank and in making a submission to the US Securities and Exchange Commission study on the extraterritorial reach of actions under US securities laws.

 


Our people

Improving access to justice through clearer legislation

reduce the complexity of legislation

The Access to Justice Taskforce report, A Strategic Framework for Access to Justice in the Federal Civil Justice System, identified a need for laws to be clearer, more accessible and easier to understand. The Clearer Commonwealth Laws initiative was initiated to address this.

‘Clearly written laws are easier to administer for the Government and easier for individuals to comply with,’ says Romina Clements, acting Senior Legal Officer in the Access to Justice Division.

‘The task of interpreting legislation can be daunting and complicated for those who aren’t lawyers, so it’s good to see a whole-of-government move to reduce the complexity of legislation.’

A steering committee, comprising representatives from the Attorney-General’s Department, Office of Parliamentary Counsel, the Department of the Prime Minister and Cabinet, and the Department of Finance and Deregulation, was established to work on improving the clarity of laws. The committee developed an action plan outlining five key principles for developing clearer laws and identifying measures to reduce complexity during the legislative development process.

Two outcomes from the initiative are the Clearer Laws website and the Quick reference guide to developing clearer laws. These two initiatives provide departmental officers involved in developing legislation with useful information such as the five key principles, links to training material and key Government contacts.

‘As someone who has developed legislation, I appreciate the value of having tools such as the Guide and website,’ says Romina.

‘Not only is the Department responsible for ensuring that these initiatives are effectively implemented across Government, but we have to set an example in the way that we develop legislation.’