​​​​​​​
You are here: Skip breadcrumbAttorney-General's Department >> Publications >> Annual reports >> Annual report 2012-13 >> Program 1.1: Civil Justice and Legal Services

Program 1.1: Civil Justice and Legal Services

next page 

Major achievements

Access to justice

Review of the Legal Assistance National Partnership Agreement

The department commissioned a review of the National Partnership Agreement on Legal Assistance Services, the first comprehensive national evaluation of legal assistance services. The Agreement sets out the objectives, outcomes and outputs for Australia's legal assistance system, as agreed between the Commonwealth and the states and territories, and is the principal source of funding for legal aid commissions.

The Review will evaluate the quality, efficiency and cost-effectiveness of all four Australian Government funded legal assistance programs, namely legal aid commissions, community legal centres, Aboriginal and Torres Strait Islander legal services and Family Violence Prevention Legal Services for Indigenous Australians.

To be finalised in the second half of 2013, the Review's findings will inform future Australian Government policies aimed at improving the delivery of legal assistance services to the most vulnerable and disadvantaged members of our community. Further access to justice initiatives are included in Programs 1.3, 1.4 and 1.5.

Family law

Work continues on reviewing and improving family dispute resolution. A pilot program of coordinated family dispute resolution where there is family violence was completed and evaluated by the Australian Institute of Family Studies. The evaluation provides valuable information about the benefits and challenges of collaboration between different service providers to deliver family dispute resolution in circumstances where there is family violence.

The department is improving the interface between child protection and family law systems to enhance child protection as part of the National Child Protection and Family Law Collaboration Project. Key partners in this project include the Family Court of Australia, the Federal Circuit Court, state and territory child protection departments, state and territory justice departments and legal aid bodies. To this end, the department commissioned the report, Information Sharing in Family Law and Child Protection: Enhancing Collaboration which includes a model information-sharing agreement to facilitate information sharing between the family courts, child welfare authorities and other relevant stakeholders.

Legislative amendments were made to ensure consistency among superannuation splitting arrangements in Australian Government defined benefits schemes. The amendments introduce new scheme-specific methods and factors for determining the gross value of superannuation interests in the Judges' Pensions Act Scheme and the Governors-General Pension Scheme under the Family Law Act 1975.

Family Law TermFinder is a web-based resource providing general information for anyone who wants to enhance their understanding of the family law system. Developed by the department in conjunction with Macquarie University, the program provides Australians with accessible definitions of the most common family law and dispute resolution terms.

Marriage celebrants

The department developed a cost recovery procedure for Commonwealth-registered marriage celebrants with supporting legislation before the Parliament as at 30 June 2013. The reforms will provide improved services for Commonwealth registered marriage celebrants and enable more effective regulation of those celebrants. This will in turn support professional services for couples marrying in Australia. Improvements will include streamlined processes for enquiries, complaints handling, performance monitoring, and the assessment of applications from aspiring celebrants. Support for celebrants will be further improved through a telephone hotline, increased stakeholder engagement, a quarterly newsletter and revised guidance material.

Court reforms

A number of reforms to the Federal Magistrates Court were instigated by the department in the reporting year to reflect the court's modern role, including highlighting the valuable services it provides to regional Australians.

The name of the Federal Magistrates Court was changed to the Federal Circuit Court of Australia and the titles of the Chief Federal Magistrate and Federal Magistrate to Chief Judge and Judge. Following on from the 2012 Strategic Review of Small and Medium Agencies in the Attorney-General's Portfolio the shared administrative structure of the Family Court of Australia and the Federal Circuit Court of Australia was formalised through legislative amendments. For financial and administrative purposes, the courts will now be treated as a single entity, with a single Chief Executive Officer.

Other court-related legislative initiatives included:

  • the design of a new judicial complaints framework to ensure complaints against federal judicial officers are handled fairly and transparently while maintaining the constitutional independence of the judiciary, which commenced on 12 April 2013
  • passage through Parliament of a new legislative framework for security at federal court premises, to ensure they are safe and secure environments in which people may have their disputes heard
  • continued collaboration with the Department of Defence to establish the Military Court of Australia under Chapter III of the Constitution to provide a permanent system of military justice for Australia's Defence Forces.

Further initiatives included changes to court fees to reflect the capacity of litigants to pay as well as the resource intensive nature of some matters before the courts. These initiatives will encourage parties to litigation to narrow the issues in dispute between them and explore settlement options. The changes will provide an increase in revenue of $104.2 million over four years and allow additional funding of $38 million over four years to be provided to the courts.

Judicial appointments

The department supported a number of significant judicial appointments this year, including:

  • two High Court justices
  • a Chief Justice for the Federal Court of Australia
  • five Federal Court judges
  • eleven Family Court judges
  • four Federal Circuit Court judges.

Private international law

Work has been undertaken to modernise and streamline legal rules that apply to transnational civil proceedings through a Standing Council on Law and Justice project. Two discussion papers have been released and further work on proposed reforms is underway.

Legislative drafting and publishing

The functions of the Office of Legislative Drafting and Publishing were transferred from the department to the Office of Parliamentary Counsel from 1 October 2012. This includes the functions of drafting subordinate legislation and the maintenance of the Federal Register of Legislative Instruments.

In conjunction with the Office of Parliamentary Counsel, 1005 spent and redundant legislative instruments were identified and repealed in April 2013.

Human rights

The department furthered implementation of the Human Rights Framework, including:

  • development of the National Human Rights Action Plan which details how the commitments made during Australia's Universal Periodic Review at the United Nations will be implemented
  • improved scrutiny of Bills and disallowable instruments for compatibility with human rights
  • continuing development of a Bill to consolidate Australian Government anti-discrimination laws into a single Act
  • implementation of the Public Sector Education Program on Human Rights to improve the public service's understanding of their role in respecting, protecting and fulfilling human rights.

Australia's first National Children's Commissioner was appointed for a period of five years and will work within the Human Rights Commission as a dedicated advocate for children and young people.

The department has continued to work towards the ratification of the Optional Protocol to the Convention against Torture (OPCAT) including working with the states and territories to develop model implementing legislation. On 21 June 2012, the House of Representatives' Joint Standing Committee on Treaties reported on the OPCAT and made a number of recommendations including that binding treaty action be taken. On 1 November 2012, the Government responded, accepting the recommendations.

New protections from discrimination on the basis of sexual orientation, gender identity and intersex status were implemented. Amendments included changing the existing ground of 'marital status' to 'marital or relationship status' to provide protection from discrimination for same sex de facto couples, extending cover to Australian Government funded aged care services and updating terminology in other legislation.

The introduction of the Australian Government Guidelines on the Recognition of Sex and Gender provide a clear and consistent way for people who are intersex, transgender or gender diverse to establish or change their gender identity on personal records held by government departments and agencies.

The department worked on the Australian Government's referral of the examination of laws and legal frameworks that deny or diminish the rights of people with disabilities to make their own decisions and act on their own behalf to the Australian Law Reform Commission (ALRC). The ALRC this year finalised its report on an earlier reference on barriers to older people's participation in the workforce: Access All Ages — Older Workers and Commonwealth Laws (ALRC Report 120).

Counter-terrorism measures and international human rights

Effective counter terrorism measures and robust human rights checks and balances are complementary and mutually reinforcing features of a strong democracy. Ultimately, communities that uphold human rights and human dignity are more cohesive, and less susceptible to indoctrination by radical elements.

Our counter terrorism laws incorporate safeguards and accountability mechanisms to ensure the appropriate recognition and preservation of human rights. In addition, as part of Australia's Human Rights Framework, all new legislation (including national security and counter terrorism legislation) must be accompanied by a Statement of Compatibility with human rights. A Parliamentary Joint Committee has been created to consider the compatibility of legislation with Australia's international human rights obligations.

Review mechanisms enhance transparency, accountability and public confidence in government decision-making. There were two reviews of Australia's counter terrorism legislation in 2012–13, the Council of Australian Government's Review of Counter Terrorism Laws and the Second Annual Report of the Independent National Security Legislation Monitor (INSLM), which were tabled in Parliament on 14 May 2013.

An Independent Reviewer of Adverse Security Assessments, the Hon Margaret Stone, was appointed in October 2012. Her role is to examine all materials available to ASIO for people in immigration detention who are determined to be owed protection but who are currently the subject of adverse security assessments. Ms Stone provides recommendations to the Director General of Security on whether an individual's adverse security assessment is appropriate.

International law

Maritime powers

The creation of the new Maritime Powers Act 2013 consolidates and harmonises the Australian Government's existing maritime enforcement regimes assisting Australia's authorities to enforce a diverse range of laws in relation to illegal fishing, customs and migration. This addresses the inefficiencies of the previous legislative structure in which operational agencies relied on maritime powers contained in at least 35 separate Acts.

Cluster munitions

The development of the Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 ensures that Australian law is consistent with international obligations under the Convention on Cluster Munitions. The Convention, which entered into force in Australia on 1 April 2013, prohibits the use, development, production, acquisition, retention or transfer of cluster munitions.

International litigation

The department continued its leadership role in representing the Australian Government in international litigation. Australia's case against Japan in the International Court of Justice, Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), seeks to end Japan's whaling in the Southern Ocean. Oral hearings took place in June-July 2013 at the Peace Palace in The Hague, and represent the last phase of the legal proceedings before the Court makes its decision.

In December 2011 the department assumed overall responsibility for the Australian Government's defence to legal challenges to the plain packaging of tobacco products under the Tobacco Plain Packaging Act 2011 and related legislation. The department is responsible for the conduct of the investor–state dispute brought by Philip Morris Asia, constitutional challenges, and whole-of-government coordination of the litigation. Additionally, the department is providing support to the Department of Foreign Affairs and Trade in defending challenges to plain packaging in the World Trade Organization.

The Australian Agent Bill Campbell QC (General Counsel (International Law)) opening Australia’s case before the International Court of Justice, Whaling in the Antarctic (Australia v Japan; New Zealand Intervening) 

The Australian Agent Bill Campbell QC (General Counsel (International Law)) opening Australia’s case before the International Court of Justice, Whaling in the Antarctic (Australia v Japan; New Zealand Intervening)

Personal property securities

On 30 January 2013 the department celebrated the first anniversary of the personal property securities reforms and the establishment of the Personal Property Securities Register (PPSR).The PPS reforms support businesses and consumers by establishing a national register of security interests in personal property including secured business financing and loans over motor vehicles.

The World Bank in its report, Doing Business 2013 — Smarter Regulations for Small and Medium-Size Enterprises, cited the introduction of the PPSR reforms as a key factor in Australia's improved ranking in terms of ease of doing business, moving up in the world from 15th place to 10th.

The department continues to work with key stakeholders on implementing the reforms and sharing Australia's experience with other countries.

Personal insolvency

In close consultation with the Treasury, the department has worked to improve regulatory oversight and streamline the regulatory framework for insolvency practitioners in response to the findings of the Senate Economics Reference Committee's 2010 report on the corporate insolvency industry.

Work on improving the legislative and regulatory framework for debt agreements continues, building on recent consultations.

Privacy

The department steered the development and finalisation of major reforms to enhance privacy protections for Australians. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 contains the most significant changes to Australia's privacy laws since the inception of the Privacy Act 1988 nearly 25 years ago. The reforms will commence on 12 March 2014 and will create unified privacy principles, a more comprehensive credit reporting system and stronger enforcement powers for the Australian Information Commissioner. The reforms give effect to a majority of the recommendations made by of the Australian Law Reform Commission in its 2008 report For Your Information: Australian Privacy Law and Practice (ALRC Report 108).

Freedom of information

New legislation was overseen by the department to provide exemptions for information held by departments and agencies that relates to a confidential request for the Parliamentary Budget Office. The reforms protect the confidentiality of the Parliamentary Budget Office's work and ensure its original exemption works as intended.

Two reviews of FOI were commissioned, including:

  • a review of FOI compliance by NBN Co which found NBN Co was achieving a high standard in its administration of the FOI Act and was actively assisting applicants
  • a review of the extent to which the current regulatory regime continues to provide an effective framework for access to government information which found that recent reforms are working well, although changes are needed to streamline procedures, reduce complexity and increase the capacity of the Office of the Australian Information Commissioner to manage the FOI workload.

Copyright

The Australian Law Reform Commission (ALRC) is currently examining whether existing copyright exceptions and statutory licences are adequate and appropriate in the digital environment. In addition to participating in the ALRC's inquiry, the department has reviewed key regulations, in keeping with our role of ensuring copyright law and regulation supports and promotes commercial activity, particularly in the digital environment.

To improve the regulatory environment, the department concluded a review of Schedule 3 of the Copyright (International Protection) Regulations 1969 to update the list of countries that provide 'secondary use rights' for Australian sound recordings. A review of the Electronic Transactions Regulations 2000 is also being undertaken to reduce the administrative burden on Australian business and the Australian public by reducing the exceptions to the operation of the Electronic Transactions Act 1999.

The department led Australian Government participation in negotiations for a treaty on exceptions and limitations to copyright for visually-impaired persons. The treaty was adopted by the World Intellectual Property Organization in June 2013 and addresses market failure in the production of accessible format copies and distribution of these accessible format copies across borders. It is the first treaty of its kind in the history of the multilateral copyright system. If implemented in Australia, the treaty means visually-impaired Australians will be able to access repositories of accessible formats in other countries and Australian accessible format copies will be made available overseas.

Over the last year the department facilitated discussions between business and consumer groups to identify possible industry led strategies to combat illegal downloading of copyright material.

Classification

Australia's first R18+ category for computer games and new Guidelines for the Classification of Computer Games took effect on 1 January 2013.

Commonwealth, state and territory ministers with responsibility for classification agreed in April 2013 to the first tranche of reforms arising from a number of recommendations made by the Australian Law Reform Commission's review of the National Classification Scheme. The reforms will improve the effectiveness and efficiency of the National Classification Scheme by streamlining classification requirements and assisting industry to comply with classification laws.

Ministers agreed to allow for the use of automated classification decision-making instruments (DMIs) which can process large volumes of content cheaply and quickly and may provide a long-term solution to classifying certain content such as mobile and online games. The department is working in consultation with the International App Rating Council on a prototype DMI that will be tested for use in Australia for a 12-month period.

The new Australian Classification website (www.classification.gov.au) went live in November 2012 and will host a secure 'portal' for industry to lodge applications with the Classification Board. The portal will be the basis for streamlining classification procedures for business and industry.

Classification Liaison Scheme

The Classification Liaison Scheme (CLS) is a joint state, territory and Australian Government initiative aimed at improving industry compliance with classification laws. In 2012–13, CLS staff conducted 1025 compliance checks across a range of retail premises in capital cities and regional and rural centres. In 2012–13, CLS referred 111 restricted premises and associated websites to law enforcement agencies.

Quarterly meetings have been held with CLS and the Australian Customs and Border Protection Service to facilitate information sharing in relation to importers and distributors of potentially Refused Classification material.

R18+ (Restricted) category for computer games

The R18+ category for computer games took effect on 1 January 2013. Prior to that date, Australia did not have an adult category for games. The category's introduction was agreed to by all state and territory governments and followed an extensive period of consultation with the gaming community, the general public and the computer games and retail industries. The department worked with industry, both distributers and retailers, to ensure a smooth roll-out of the new category.

As part of the process, the department developed new stand-alone classification guidelines for computer games which were agreed to by all ministers responsible for classification all over the country. These guidelines set out what content is permitted in R18+ computer games. The new guidelines altered allowable content in other categories. For example, the new guidelines are more restrictive than the previous guidelines at the MA15+ level in relation to violence and sexual content and specify extra limits on certain content at the G and PG classifications to provide greater protection for younger children who play games.

Computer games that are classified R18+ (Restricted) can only be legally sold to, or publicly demonstrated to, adults. The provisions regulating access to these games are contained in state and territory laws. The first computer game to be classified R18+ was Ninja Gaiden 3: Razor's Edge which was classified by the Classification Board on 11 January 2013.

The department has supported the category's introduction by offering information sessions for relevant industry assessors, other government agencies such as the Australian Customs and Border Protection Service and the Australian Communications and Media Authority. We prepared training information for retail staff, developed in-store and online point of sale information for consumers and provided regular information bulletins. Officers of the Classification Liaison Scheme overseen by the department have inspected retail premises and provided support to retailers.

Australian Government legal services

A new compliance framework and related guidance material to assist departments to comply with the Legal Services Directions were released by the department. A key focus of the compliance framework is on proactive compliance activities that support understanding and application of the directions and activities providing the greatest overall benefit (including reducing legal risk) to the Australian Government and the public interest.

In 2012–13, the department received 93 notifications of possible non-compliance with the Legal Services Directions. There were 14 substantiated instances of non-compliance which related to the way in which Counsel were engaged (6), failure to adhere to 'tied work' obligations (3), failure to act as a model litigant (2), failure to engage a legal service provider appointed to the Legal services Multi Use List (2), and failure to consult with relevant policy developments and share legal advice (1). In addition, 22 agencies failed to properly meet their reporting obligations under the Directions.

Table 2.7: Summary of compliance notifications
Year
Matters carried forward
New matters
Reviewed and no further action taken
Examined and found non compliant
Examined and found compliant
Matters still under review at year end
2009–10
16
43
-
24
30
6*
2010–11*
6
38
-
17
8
16
2011–12
16
94
-
42
18
50
2012–13
50
93
84
14
33
12


* NB: These figures supersede the figures appearing in the 2010–11 Annual Report.

The department continued to support information sharing and the professionalisation of Australian Government legal services through forums such as the General Counsel Working Group, the Commonwealth Legal Practice Managers Forum and the Government Legal Network which was launched in February 2013.

The department has continued to implement reforms to the framework for Commonwealth purchasing of legal services. Following a transition period of 12 months, from 1 June 2013, all agencies subject to the Financial Management and Accountability Act 1997, and bodies subject to the Commonwealth Authorities and Companies Act 1997, with some exceptions, were required to obtain their external legal services from a provider appointed to the Legal Services Multi Use List (LSMUL). The LSMUL provides an important portal for sharing information across all government departments and agencies. A post implementation review of the LSMUL commenced in June 2013, with a focus on continuous improvement of the purchasing framework. As at 30 June 2013, 106 firms were qualified to provide services to the Australian Government and were on the LSMUL.

International legal services

Work is continuing, in consultation with the legal profession, the Department of Foreign Affairs and Trade and the International Legal Services Advisory Council (ILSAC), to improve access for Australian legal services providers to key international markets.

Regulation of the legal profession

The department continued to work with states and territories in relation to the introduction of a national scheme for regulating the legal profession in Australia.

Evaluations and reviews

Australian National Audit Office

The department has engaged with the Australian National Audit Office which is conducting an audit on Agency Management of Arrangements to Meet Australia's Treaties Obligations, due to be completed in 2013–14.

Review of Family Law Pathways Networks

The department commissioned Encompass Family and Community to conduct an independent review of the Family Law Pathways Networks. The Report concluded that the Networks have positive impacts on professionals, and flow-on benefits for families. Changes have been made to the Family Law Pathways Networks program guidelines in line with the recommendations and feedback received as part of the review.

Purchaser/provider arrangements

The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) manages contractual arrangements with organisations funded to provide family law services under the Family Support Program. This arrangement is delivered under a Memorandum of Understanding between FaHCSIA and the department.

Performance results

Table 2.8: Performance results, Program 1.1
Key performance indicators
Results
Improved access to justice
Achieved

Access to justice was improved through numerous programs administered or delivered by the department including:
  • Redevelopment of the access to justice website which will help people to resolve their disputes before they escalate
  • Indigenous justice and legal assistance programs which provide access to legal services for Indigenous and disadvantaged people
  • Family relationship services which provide a range of support services for separating families
  • Establishment of a Royal Commission into Institutional Responses to Child Sexual Abuse.
See also performance indicators from Programs 1.3, 1.4 and 1.5.
The human rights of individuals to whom Australia has obligations are protected and promoted
Achieved

Changes to legislative scrutiny encourage early and ongoing consideration of Australia's human rights obligations in the development of policy and legislation.

Protection of the rights of people who are intersex, transgender and gender diverse was enhanced by the Australian Government Guidelines on the Recognition of Sex and Gender which will be implemented over the next three years.

Legislative protection from discrimination on the basis of sexual orientation or gender identity was improved.

The negotiation of a treaty on copyright exceptions will support improved international access to copyright works by the visually impaired.

Reforms to the Privacy Act and work on mandatory data breach notification scheme will enhance privacy protections in Australia.

 

Those individuals at greatest risk of social exclusion have access to appropriate legal assistance services
Achieved

Data reported by legal aid commissions for the first six months of 2012–13 indicates an increase in the number of these services being provided with a 14.25% increase in preventative services (excluding web hits) and a 30.56% increase in early intervention services from the corresponding six months of the previous year.

In 2012–13, community legal centres have provided more than 242,244 advices, closed more than 48,000 cases and delivered more than 3,400 community legal education sessions.

Grants made to Aboriginal and Torres Strait Islander legal services have helped improve access to legal assistance for Indigenous Australians. The Memorandum of Understanding with the Torres Strait Regional Authority has increased services to the Torres Strait.

Family relationship services provide 11 different service types throughout Australia, to assist Australian families during and after separation and divorce.

See also major achievements and performance indicators for Programs 1.3, 1.4 and 1.5.
Improved family and community safety for indigenous Australians
Substantially achieved

Community and family safety for Indigenous Australians remains an area of considerable concern. The department continues to work to improve family and community safety through a range of initiatives including community night patrols, Family Violence Prevention Legal Services, funding support for Community Engagement Police Officers and the Indigenous Justice Program.

See also performance indicators for Program 1.5.
A reduction in complexity of laws
Substantially achieved

Over 1000 spent and redundant legislative instruments were repealed.

The consolidation of the Office of Parliamentary Counsel and the Office of Legislative Drafting and Publishing supports a consistent approach to the drafting of all Commonwealth legislation, with an emphasis on simplicity.
Contribution to effective microeconomic reform
Achieved

Changes to the regulatory framework for insolvency will ease the compliance burden on practitioners.

Reforms will streamline administration for businesses seeking classification of products.

The ongoing review of the Electronic Transactions Act 1999 to make it easier to transact electronically with government reducing the administrative burden on business and the public.

Progression of major reforms to Australia's legal rules and principles governing transnational legal transactions and disputes continues.

Privacy reforms support business use of personal information while maintaining effective and appropriate privacy protections.
Clarity and certainty of advice on international law and legislation implementing Australia's obligations under international law
Achieved

Accurate and effective legal advice regarding Australia's international obligations and their domestic implementation was provided, assisting in policy development across government and enhancing the implementation of Australia's obligations under international law, including in the conduct of significant international litigations.

Strengthening the rule of law in the Asia–Pacific region

The department and portfolio agencies work closely with our neighbours in the Asia–Pacific region to strengthen the rule of law, combat transnational crime and build more sustainable regional security. This includes work in the Pacific and in Papua New Guinea to build institutional capability to support policing, improve community safety and encourage non-violent dispute resolution; and work in Asia and the Pacific to combat transnational crime.

Our work promotes more effective governance in partner countries through improved law and justice capacity. We support countries to identify and close loopholes, use laws to fight domestic crime, shut down avenues for irregular migration, and fight people smuggling, human trafficking, terrorism, money laundering and other transnational crime.

A key component of this work is depriving criminals of profits and capital for new enterprises. This is done at all stages of the process, by identifying areas for improvement in systems to track and trace illicit funds, providing assistance to implement those systems, and through improved extradition and mutual legal assistance capability and support to confiscate criminal proceeds.

Building effective governance in partner countries is vital to overcoming poverty — the aim of Australia's aid program. This is because criminal activity and corruption thwart development. United Nations Reports note that from 2000 to 2009, developing countries lost US$8.44 trillion to illicit finance flows. This amount is equivalent to 10 times more than the foreign aid those countries received.

This work is central to our mission to achieve a just and secure society. A just society is only possible when underpinned by security, resilience and the rule of law. In a globalised world with the free flow of people, capital, goods and information, we must work with other countries to achieve this aim.

next page