08-09 Annual Report.Indd 1 14/09/2009 2:51:08 PM Requests and Inquiries Regarding This Report Should Be Addressed To

ALRC 2008-09

R E P O R T 110 ANNUAL REPORT

08-09 Annual Report.indd 1 14/09/2009 2:51:08 PM Requests and inquiries regarding this report should be addressed to:

The Executive Director Australian Law Reform Commission GPO Box 3708 Sydney NSW 2001

Telephone: (02) 8238 6333 Fax: (02) 8238 6363 Email: [email protected]

This report is also accessible online at: www.alrc.gov.au

ISBN 978-0-9804153-8-4 Print Post Approval Number: PP255003/02228

This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Alternatively, an online request form is available at .

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08-09 Annual Report.indd 2 14/09/2009 2:51:09 PM EmeritusProfessor Prof David David Weisbrot Weisbrot AM AM President President

The Honourable Robert McClelland MP Attorney-General Parliament House Canberra ACT 2600

3 October 2009

Dear Attorney-General

On behalf of the members of the Australian Law Reform Commission, I am pleased to present the Commission’s Annual Report for the period 1 July 2008 to 30 June 2009.

This report has been prepared in accordance with the Commonwealth Authorities and Companies Act 1997 (Cth), the Commonwealth Authorities and Companies (Report of Operations) Orders 2005 and the Commonwealth Authorities and Companies Orders (Financial Statements for reporting periods ending on or after 1 July 2008).

Yours sincerely

Australian Law Reform Commission Level 25, 135 King Street Tel (+61-2) 8238 6333 Sydney NSW 2000 Fax (+61-2) 8238 6363 TTY (+61-2) 8238 6379 Postal Address: GPO Box 3708 Web www.alrc.gov.au Sydney NSW 2001 Australia Email [email protected] iii

08-09 Annual Report.indd 3 14/09/2009 2:51:09 PM Our Vision

A fair, equitable and accessible system of federal justice that contributes to a just and secure society.

Outcome Statement

The ALRC is committed to achieving its vision through informed Government decisions about the development, reform and harmonisation of Australian laws and related processes through research, analysis, reports and community consultation and education.

This Outcome Statement was developed through ‘Operation Sunlight’ and confirmed in March 2009. It forms part of the ALRC’s new Corporate Plan 2009–11 and its Portfolio Budget Statement 2009–10.

08-09 Annual Report.indd 4 14/09/2009 2:51:09 PM Contents

2 President’s Overview Appendices Corporate overview 119 A. Corporate Plan 10 ALRC Organisational 123 B. Key Supporting Policies Structure and Documents 11 Role and Functions of the ALRC 124 C. Terms of Reference 2008–09 12 Highlights of 2008–09 126 D. Advisory Committee Members Report on performance 128 E. Agency Resource Statement 14 Outcome and Outputs and Resources for Outcomes Structure 130 F. Implementation Activity 15 Outcome Report 2008–09 22 Performance Report 137 G. Implementation Status of 43 Significant Developments ALRC Reports Corporate governance 148 H. Citations of ALRC Reports in Major Court Decisions 45 Corporate Governance 151 I. Public Presentations and Framework Contributions to Newspapers 46 Statement of Governance and Journals 58 Corporate Planning 155 J. Media Releases and Briefs 59 External Scrutiny and Controls 157 K. Visitors to the ALRC 59 Human Resource Management 69 Summary of Financial Glossary and Indexes Performance 159 Glossary 70 Other Reporting Requirements 161 Index of Charts and Tables Financial statements 162 Compliance Index 75 Financial Statements 166 Alphabetical Index Special Features

105 Talk to Us 106 Reconciliation Action Plan 108 International Collaboration 114 Internship Program 117 Australian Academy of Law Annual Report 2008—09 Report Annual 1

08-09 Annual Report.indd Sec1:1 14/09/2009 2:51:10 PM President's Overview

ALRC President, Emeritus Professor David Weisbrot AM.

08-09 Annual Report.indd Sec1:2 14/09/2009 2:51:10 PM President’s Overview

It seems almost impossible to believe, but this is now the tenth—and final—Annual Report produced during my time as President of the ALRC. Since the publication of the Annual Report 2007–08 (ALRC 109, 2008), I passed the Hon Michael Kirby, the Foundation Chairman, as the longest serving head of the ALRC (in January); had my term of appointment extended again until the end of November, in order to ensure the smooth completion of the ALRC’s two current inquiries; and celebrated the 10-year milestone with a surprise anniversary dinner organised by staff in June. It has been an enormous honour and privilege to work at the ALRC with such an incredibly talented and dedicated group of people, and on such a wide array of important and challenging issues—this is certainly the best job I’ve ever had.

2008–09 has been another very busy one for the ALRC, with a focus on organisational renewal and increasing productivity. Following the release in August of the landmark Privacy Report, For Your Information: Australian Privacy Law and Practice, (ALRC 108, 2008)—which involved one of the largest national and international consultation exercises in the ALRC’s history—the ALRC was referred two new inquiries: a review of Commonwealth Secrecy Laws; and a review of the Royal Commissions Act 1902 (Cth) and related issues. Both of these major inquiries are due to be completed by the end of October 2009.

The then Opposition Australian Labor Party (ALP) went into the last federal election in November 2007 with a platform of commitment to more openness, accountability and transparency in the operation of executive government. Among other things, the ALP pledged to implement the major recommendations in the ALRC’s report on freedom of information (FOI) law and practice, Open Government (ALRC 77, 1995), as well as those in the ALRC’s review of federal sedition laws, Fighting Words (ALRC 104, 2006).

In some respects, the ALRC’s current review of secrecy laws represents one of the final pieces in the puzzle (a regime providing strong whistleblower protections would be another key piece), since over the past decade or so the ALRC has provided reports and recommendations to successive governments about improving FOI; privacy laws and practices; the protection of classified and security sensitive information; the preservation of archival resources; and client legal privilege in federal investigations.

As is so often the case with complex ALRC inquiries, the review of federal secrecy laws involves a careful balancing of legitimate, but often conflicting, public interests. In this instance, we need to provide clear and effective mechanisms to protect Commonwealth information, especially where this relates to sensitive matters of national interest, while developing laws and an underlying culture that place a premium on maintaining an open and accountable government by providing access to information wherever possible. Secrecy provisions are appropriately found in laws relating to national security and in

areas in which citizens have a right to expect that their sensitive personal information 2008—09 Report Annual 3

08-09 Annual Report.indd Sec1:3 14/09/2009 2:51:10 PM will be safeguarded from unauthorised disclosure. However, the ALRC’s ‘mapping’ of the federal statute book identified more than 500 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties. The ALRC believes that this situation is more reflective of the old culture of official secrecy than the contemporary preference for openness and disclosure.

Information handling, management and protection by the Commonwealth should be seen as part of a continuum. At the ‘open government’ end, there is information that should be disclosed as a matter of course. Most departments and agencies now maintain websites that provide an enormous amount of useful information. This is desirable in the interests of promoting open and accountable government, but it also promotes efficiency—the more information that is publicly available, the fewer requests, questions and FOI applications that departmental officers have to handle. At the opposite end, there is the information that is strictly secret and closely protected—most obviously, information relating to defence and national security. Even at this end of the spectrum, however, the system must allow for information-sharing among government agencies, and with private partners where necessary—and there may be circumstances in which even secret information should be allowed to be revealed through prescribed ‘whistleblower’ mechanisms.

In trying to nudge the system towards that open and ‘pro-disclosure culture’, the ALRC is proposing to decrease the emphasis on the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused (or was likely to be caused) to a compelling public interest, such as national security, defence, international relations, law enforcement operations, the physical safety of a person, or public health. In the recent Discussion Paper, Review of Secrecy Laws (DP 74, 2009), the ALRC has developed a proposed new ‘General Secrecy Offence’ applicable to Commonwealth officers. If agreed and implemented by government, this would substantially consolidate the scattered specific offences, based on a common set of principles, and would greatly rationalise the penalty structure. We estimate that such a move would see the repeal of roughly 20% of existing offences, on the basis that they substantially replicate the General Secrecy Offence.

The ALRC is mindful of the need to fit in with the surrounding matrix of laws on FOI, privacy and whistleblower protection—all of which are under concurrent review by government. The key focus of the ALRC’s proposed reforms is on achieving much greater clarity for the public servants (and, where appropriate, private contractors) who handle Commonwealth information. Among other things, this involves a recasting of the Australian Public Service Code of Conduct to clarify the duty owed by officers— recognising that in most instances it is preferable to deal with these matters through better education and training, improved information-handling practices, and by utilising public service disciplinary procedures, rather than by invoking the full force of the criminal law and imposing the complexity of criminal procedure. 4

08-09 Annual Report.indd Sec1:4 14/09/2009 2:51:10 PM As mentioned, the ALRC also has been asked to review the operation of the Royal Commissions Act 1902 (Cth) and related issues, and in particular to consider whether less formal alternatives to a Royal Commission may be appropriate in some circumstances.

By definition, Royal Commissions are established to inquire into matters of great public importance, and they play an important role in ensuring that systemic failures are

addressed. When there are controversial issues that cannot be handled satisfactorily Overview President's by the courts or the political process—for example, where extraordinary information- l gathering powers are required, or the public perception of an independent, non-partisan inquiry is critical—there invariably are calls for the establishment of a Royal Commission.

However, it is also the case that Royal Commissions usually prove to be very expensive. The ALRC estimates that, in today’s dollars, the Royal Commission into the Building and Construction Industry cost taxpayers more than $76m, the Royal Commission into Aboriginal Deaths in Custody cost more than $50m, and the one into the collapse of insurer HIH cost more than $45m.

Consequently, a key concern for the ALRC is whether an alternative model of executive inquiry might provide similar advantages and outcomes to Royal Commissions, in terms of respect, independence, protection of witnesses and so on, while offering less formality, more flexibility and reduced levels of public expenditure.

Royal Commission powers are another issue under the spotlight. The Royal Commissions Act 1902 (Cth) currently gives Royal Commissioners a wide range of coercive information-gathering powers. The exercise of such powers must be balanced carefully against the rights of those being investigated and those whose character and reputation may be called into question. The Act also contains a number of criminal offences that can be used (although very rarely are used in practice) to punish failures to comply with the requirements of a Royal Commission, interfering with witnesses, or interfering with the work or authority of a Royal Commission.

Community engagement lies at the heart of all ALRC processes. As expressed by Justice Michael Kirby in the formative years of the institution:

We see it as quite vital that the Commission should not become just an ‘overpowerful enclave of an elitist faceless few’. We are established to

assist the Parliament in the development of modern laws which embody the popular values of Australian society.

Or, put another way, ‘Law reform is much too important to be left to the experts’.

This emphasis on widespread public involvement in the policy-making process remains part of the ALRC’s central ethos and operations, and this year has been no different with an ambitious consultation program in both inquiries. The ALRC produced three

community consultation documents during the course of the reporting period, and 2008—09 Report Annual 5

08-09 Annual Report.indd Sec1:5 14/09/2009 2:51:10 PM conducted more than 94 consultation meetings, visiting most states and territories during this process as well as some valuable meetings in New Zealand (which recently reviewed its own Royal Commissions and official inquiries legislation).

The ALRC expanded its online communication strategies to include two interactive online forums as a way of utilising the internet to broaden its consultation processes. Online consultation was first trialled by the ALRC during the Privacy Inquiry and it is now set to become an important way in which we routinely engage more informally with the community about legal processes and law reform issues—operating as a useful supplement to the traditional methods of face-to-face meetings, conducting public forums, and calling for and receiving formal written submissions.

This year, the ALRC appointed a new Executive Director, Ms Sabina Wynn, who is renewing our corporate structures and policies, including the development of a new three-year Strategic Plan. The ALRC has a new Outcome Statement and more clearly defined programs and performance measures that will focus our energies and resources. The ALRC’s communications functions have been restructured to place greater emphasis on online communication strategies through the ALRC’s website; our employment policies and job descriptions have been updated along with a re-designed and streamlined performance appraisal system; and many of our corporate policies have been reviewed and updated, including the development of new Health and Safety Management Arrangements and a renewed focus on environmental best practice.

Another aspect of organisational renewal involved the decision to engage the organisation on a journey of reconciliation, by initiating and developing the ALRC’s inaugural Reconciliation Action Plan (RAP). Recognising the Government’s priorities to promote reconciliation with Australia’s Indigenous people and communities and to ‘close the gap’ that lies between Indigenous and non-Indigenous people in life expectancy, educational achievement and economic opportunity, the ALRC has thrown itself into the RAP process, with a high level of energy and commitment displayed by all Commissioners and staff. During his formal apology to Indigenous People in November 2008, the Prime Minister acknowledged that ‘the laws and practices of successive Parliaments and governments have inflicted profound grief, suffering and loss on these, our fellow Australians’. As the national law reform agency, the ALRC can play a key role in helping to redress this situation.

The intention of the ALRC’s RAP—which Reconciliation Australia has particularly commended and described as a best practice model for public agencies—is to ensure that Indigenous people are effectively engaged in all aspects of the work of the ALRC and in the processes of law reform, so that Australia’s laws have proper regard to Indigenous interests, protect and promote Indigenous culture, and improve social and economic outcomes for Indigenous people. The ALRC recognises that, as a first principle, our RAP needs to achieve practical outcomes, including participation by Indigenous people in all aspects of the ALRC’s work; increased consultation with 6

08-09 Annual Report.indd Sec1:6 14/09/2009 2:51:10 PM Indigenous people and communities; and recommendations for law reform that take into account Indigenous perspectives.

To help advance this process, the ALRC has provided cultural appreciation training for all staff and established an Indigenous Advisory Committee. Special and focused attention will be directed towards building relationships of trust with Indigenous peoples so that they feel encouraged to engage and contribute to law reform processes and

feel these contributions are valued and productive. The RAP is meant to be a living Overview President's document, not a historical document, and we see it as a work-in-progress—these are l the first steps, but we know there is much more to achieve.

The ALRC has worked in areas of particular importance to Indigenous peoples throughout its history, perhaps most squarely in its inquiry into Aboriginal customary law. This major project commenced in 1977, extended across nine years, involved massive research and consultation exercises, and culminated in the publication of the landmark report Recognition of Aboriginal Customary Laws (ALRC 31, 1986). Although universally regarded as a triumph of scholarship and public policy-making—and still the ‘standard reference’ for any consideration of reform in this area—the bulk of the recommendations in ALRC 31 have never been formally implemented. Nevertheless, it is possible to argue that both the inquiry processes and the final report have been highly influential in shaping further developments, by providing information and ideas, stimulating public debate and contributing to the changing social context or Zeitgeist in relation to the legal rights and interests of Indigenous Australians.

This experience also illustrates the point that formal implementation alone should never be the sole measure of the worth of a law reform report. As I noted in The Promise of Law Reform (2005), a book of essays marking the ALRC’s 30th anniversary:

A commission report should have independent and enduring value as an authoritative text on a given topic, even where the recommendations have not been acted upon by government. For example, the ALRC’s reports on admiralty, evidence, recognition of Aboriginal customary laws, sentencing, children in the legal process, marine insurance, the judicial power of the Commonwealth, the protection of human genetic information, and gene patenting, among others, serve as definitive texts in an area—sometimes the definitive text—and have proved to be of value to the courts, lawyers,

scholars and students in Australia and overseas, irrespective of the degree or timing of government implementation. Such texts also may serve to shape attitudes, values and understandings into the future, laying the groundwork for reform at a later time.

This is borne out in the current ‘Top Ten’ list of the most accessed documents on the ALRC’s website. Not surprisingly, five of the most recent reports feature prominently, with For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) a

long way in front at Number One; Privilege in Perspective: Client Legal Privilege and 2008—09 Report Annual 7

08-09 Annual Report.indd Sec1:7 14/09/2009 2:51:10 PM Federal Investigations (ALRC 107, 2008) third; Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) fourth; Uniform Evidence Law (ALRC 102, 2005) fifth; and the review of sedition offences, Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006) sixth. However, it is very gratifying to see that older reports like General Insolvency Inquiry (ALRC 45, 1988), Insurance Contracts (ALRC 20, 1982), Evidence (ALRC 26, 1985), Contempt (ALRC 35, 1987) and Choice of Law Rules (ALRC 58, 1992) are still being heavily utilised.

While the bulk of the ALRC’s energies and budget resources are devoted to the formal inquiries referred to us by the Attorney-General of the day, the ALRC has always taken seriously its responsibility to stimulate informed community debate about legal matters of public importance and to educate the community about law reform.

ALRC Commissioners continue to speak at conferences and seminars, and in 2008–09, made presentations at 27 separate functions on behalf of the ALRC. Media interest in the ALRC’s law reform work continued to increase significantly this year, with 681 articles monitored, representing an increase of 56% in 2008–09, compared with the previous year.

The ALRC also published two editions of its journal Reform on the topics of Children and Young People (Issue No 92) and on Native Title (Issue No 93)—both of which provided a range of perspectives and experiences from Australia and overseas, and fed strongly into contemporary debates on these issues.

The ALRC also runs a highly sought-after internship program for senior law students in Australia and overseas, with interns serving on Inquiry teams and providing valuable research. As part of the RAP, the ALRC is also now committed to establishing a dedicated internship program for Indigenous law students.

The ALRC is determined to continue to increase its productivity while still ensuring its processes represent international best practice. To achieve this, the ALRC shares information and ideas with other law reform and expert bodies nationally and internationally, in order to benchmark its practices and procedures. This year, Commissioners and senior staff attended the biennial Australasian Law Reform Agencies Conference (ALRAC) in Port Vila, Vanuatu, and met with about 100 law reformers from over 30 agencies from across the Commonwealth and Asia-Pacific area, to discuss a range of law reform processes and activities.

As outlined in greater detail in the Special Features section of this report, Commissioner, Professor Les McCrimmon and I provided advice and assistance (on a pro bono basis) to the Government of the Republic of Botswana in the establishment of a new law reform agency in that remarkable country. The ALRC has also provided direct training and assistance to a number of other sister agencies in our region, including those in Samoa, Papua New Guinea, and the Solomon Islands.

08-09 Annual Report.indd Sec1:8 14/09/2009 2:51:10 PM The day-to-day carriage of the work of the ALRC necessarily falls to the full-time Commissioners and staff—and I am extremely grateful for their extraordinary professionalism and prodigious work ethic. I also want to take this opportunity to thank our part-time Commissioners, who have given their time and considerable learning and experience to our current inquiries and the work of the ALRC more generally. Justices Susan Kenny, Berna Collier and Robert French continued their outstanding service to the Commission during this reporting period (although Justice French was sworn in as Chief Justice of the High Court of Australia on 1 September 2008, and consequently resigned Overview President's

on that date). l

Finally, I want to take this opportunity to acknowledge and thank the many people from other agencies, from the legal profession and other professions, from industry and commerce, from universities and from the general community, who have engaged with the ALRC in its inquiries, have written submissions, attended consultation meetings, written articles for Reform, and served on our Advisory Committees.

The work of the ALRC continues to be highly regarded and the significant implementation of the ALRC’s reports over time (Appendix F) is a testament to the contributions of so many people, ensuring that our proposals are sensible, achievable, strike the right balance between competing interests, and are broadly supported across the community to deliver benefits to the Australian community.

The year ahead promises to be another very busy one for the ALRC, with both the Secrecy and Royal Commissions Inquiries due to report at the end of October. Although formal Terms of Reference have not yet been agreed, two new inquiries have been foreshadowed in Ministerial speeches: one looking to harmonise and improve the legal framework dealing with family violence (announced by the Prime Minister in April); and the other considering the extent to which Freedom of Information law, philosophy and practices should be extended to the private sector (announced by Senator Faulkner in March). The ALRC will continue to provide the Government with high quality research and proposals so that it can make informed decisions about law reform and achieve a fairer more equitable and accessible system of federal justice for Australia.

Emeritus Professor David Weisbrot AM President Annual Report 2008—09 Report Annual 9

08-09 Annual Report.indd Sec1:9 14/09/2009 2:51:10 PM Corporate Overview

ALRC Organisational Structure

PRESIDENT Commissioners (full-time and part-time)

Executive Director

Legal Reference Teams

Corporate Support

Inquiry into Commonwealth Secrecy Laws Communications

Inquiry into the Royal Commissions Act 1902 (Cth) Research and Records and related issues

08-09 Annual Report.indd Sec1:10 14/09/2009 2:51:10 PM Role and Functions of the ALRC

The ALRC is an independent statutory authority that operates under the Australian Law Reform Commission Act 1996 (Cth) (the ALRC Act). It is responsible to Parliament through the Attorney-General. The Minister responsible for the ALRC is the Attorney- General, the Hon Robert McClelland MP.

The primary function of the ALRC, as set out in s 21 of the ALRC Act, is to report to the Attorney-General on the results of any review or consideration it carries out and to include in the report any recommendations it wants to make.

The ALRC is required to review Commonwealth laws relevant to those matters referred by the Attorney-General for the purposes of systematically developing and reforming the law particularly by:

c bringing the law into line with current conditions and ensuring that it meets current needs; c removing defects in the law; c simplifying the law; c adopting new or more effective methods for administering the law and dispensing justice; and c providing improved access to justice.

The ALRC is to consider proposals for making or consolidating Commonwealth laws, and must consider proposals for: the repeal of obsolete or unnecessary laws; uniformity between state and territory laws; and complementary Commonwealth, state and territory laws with reference to those matters referred to it.

The ALRC is required by s 24 to ensure that relevant laws, proposals and recommendations:

c do not trespass unduly on personal rights and liberties; c do not make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and c are, as far as practicable, consistent with the International Covenant on Civil and

Political Rights.

The ALRC also must have regard to any relevant international obligations, and take into account the potential impact of its recommendations on access to justice. Annual Report 2008—09 Report Annual 11

08-09 Annual Report.indd Sec1:11 14/09/2009 2:51:10 PM Highlights of 2008–09

Membership

c The ALRC farewelled part-time Commissioner Justice Robert French, following his appointment as the Chief Justice of Australia by the Federal Attorney-General on 1 September 2008. Significant Events

c On 24 July 2008, the Australian Law Reform Commission (ALRC) hosted the first Annual General Meeting and Dinner of the Australian Academy of Law.

c On 5 August 2008, the Attorney-General signed Terms of Reference for a review of Commonwealth Secrecy Laws, with a reporting date of 31 October 2009.

c The ALRC in partnership with the National Health and Medical Research Council (NHMRC) held a public meeting ‘DNA testing online: marketing hype or medical breakthrough’ at the NSW State Library on 7 August 2008.

c The Attorney-General and the Special Minister for State and Cabinet Secretary officially launched For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) on 11 August 2008 in the ALRC offices.

c On 14 January 2009, the Attorney-General signed Terms of Reference for a review of the Royal Commissions Act 1902 (Cth) and related issues, with a reporting date of 30 October 2009.

c The Attorney-General officially launched the ALRC’s 2009 Reconciliation Action Plan and Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner launched Issue 93 of the ALRC’s journal Reform; ‘Native Title’, on 8 April 2009. Publications

Corporate publications

c The Annual Report 2007–08 (ALRC 109, 2008) was tabled in the House of Representatives on 21 October 2008.

c Issue 92 of the ALRC’s journal Reform, ‘Children and Young People’, was published on 1 October 2008. 12

08-09 Annual Report.indd Sec1:12 14/09/2009 2:51:10 PM c Issue 93 of the ALRC’s journal Reform, ‘Native Title’, was published on 8 April 2009.

Privacy Inquiry

c Final Report of the Privacy Inquiry, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) was tabled in Federal Parliament, and released to the general public on 11 August 2008.

Secrecy Inquiry

c Issues Paper 34, Review of Secrecy Laws, was released on 9 December 2008.

c Issues Paper 34, Review of Secrecy Laws: Inquiry Snapshot, was released on 2 February 2009.

c ‘Talk to Us . . . about Secrecy’ online forum was launched on 2 February 2009.

c A ‘Talking Secrecy’ National Phone-in was held by ALRC staff on 11 and 12 February 2009.

c Discussion Paper 74, Review of Secrecy Laws, was released on 18 June 2009.

Royal Commissions Inquiry

c Issues Paper 35, Review of the Royal Commissions Act 1902 (Cth), was released on 6 April 2009.

c Issues Paper 35, Review of the Royal Commissions Act 1902 (Cth): Inquiry Snapshot, was released on 6 April 2009.

c ‘Talk to Us . . . about Royal Commissions’ online forum was launched on 6 April 2009. Anticipated Developments in 2009–10

New References

The ALRC has had notice of a new reference that will look into laws and legal processes concerning violence against women and their children. The ALRC anticipates receiving Terms of Reference for this inquiry in July 2009.

Senator the Hon John Faulkner, the then Special Minister for State and Cabinet Secretary and now Minister for Defence, announced that the ALRC would receive Terms of Reference for an inquiry into extending Freedom of Information Laws to

the private sector. The ALRC may receive Terms of Reference later in 2009. 2008—09 Report Annual 13

08-09 Annual Report.indd Sec1:13 14/09/2009 2:51:10 PM Report on Performance

Outcome and Outputs Structure

OUTCOME The development and reform of aspects of the laws of Australia to ensure that they are equitable, modern, fair and efficient

OUTPUT 1.1 OUTPUT 1.2 Reports and community Information and education consultation documents services to enhance community consultation and participation in the law reform process

Key Performance Indicators Key Performance Indicators

c Timely completion of references c Level of use of ALRC website within agreed parameters c Regular publication of journal c Extent to which publications are Reform received by stakeholders and stimulate public debate c Level of involvement in public discussions and debates c Distribution of community concerning law reform issues consultation documents

08-09 Annual Report.indd Sec1:14 14/09/2009 2:51:10 PM Outcome Report

The ALRC has one Outcome—the development and reform of aspects of the laws of Australia to ensure that they are equitable, modern, fair and efficient. (This Outcome was changed in March 2009 as part of Operation Sunlight.)

This Outcome reflects the ALRC’s functions as set out in the Australian Law Reform Commission Act 1996 (Cth).

The ALRC has two Outputs that deliver this Outcome:

Output 1.1 the ALRC conducts inquiries into Commonwealth laws and legal processes as referred by the Attorney-General and, as part of this process, produces reports and community consultation documents that present proposals for reform of the law;

Output 1.2 the ALRC undertakes a number of education and outreach programs that seek to educate the community about the importance of law reform.

The ALRC’s primary stakeholders are the Australian Government and Parliament. Other core stakeholders—common to most inquiries—include the judiciary, the legal profession and academics. Each inquiry will have additional stakeholders, and may include other professionals and industries, peak associations and community groups.

Output 1.1 Reports and Community Consultation Documents

The ALRC worked on two inquiries during 2008–09 as referred to it by the Attorney- General:

c the Review into Commonwealth Secrecy Laws, and c the Review into the Royal Commissions Act 1902 (Cth) and related issues.

In addition, the ALRC launched its Final Report on the Privacy Inquiry, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), on 11 August 2008, having delivered the Final Report to the Attorney-General on 30 May 2008.

Review into Commonwealth Secrecy Laws

On 5 August 2008, the ALRC received Terms of Reference from the Attorney-General to review relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality. (Terms of Reference in full are at Appendix C). Annual Report 2008—09 Report Annual 15

08-09 Annual Report.indd Sec1:15 14/09/2009 2:51:10 PM Federal legislation contains a large number of provisions that impose duties on public servants concerning information that comes to them by virtue of their office. Many of these provisions create serious criminal offences for unauthorised disclosure. Some provisions prohibit the disclosure by a public servant of any kind of information acquired in the course of his or her duties. Other provisions protect particular kinds of information including information relating to personal affairs, commercially sensitive information, and information obtained by law enforcement and other investigatory agencies. Some federal provisions also prohibit the authorised collection, possession, recording, receipt and solicitation of Commonwealth information.

The ALRC was directed to consider options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government through providing appropriate access to information.

Other matters that the ALRC was required to consider include:

c the desirability of having comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information; c the increased need to share such information within and between governments and with the private sector; c the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government; and c previous reports (including previous reports of the ALRC) that have identified the need for reform in this area.

Professor Rosalind Croucher was appointed the Commissioner in charge of the Secrecy Inquiry.

The ALRC released an Issues Paper, Review of Secrecy Laws (IP 34), in December 2008. This Issues Paper outlined the scope of the review, and sought stakeholder feedback on a number of questions. An Advisory Committee was established and a meeting held on 30 October 2008 to discuss formulation of issues to be proposed in the Issues Paper. Advisory Committees provide advice and assistance to the ALRC in identifying the key issues and provide quality assurance in the research and consultation effort. Advisory Committees also assist with the development of reform proposals and final recommendations as each inquiry progresses. (A full list of the Secrecy Advisory Committee members is at Appendix D).

The Secrecy team conducted 22 consultations both before and after the release of IP 34 in Brisbane, Canberra, Gold Coast, Sydney and Melbourne.

The ALRC conducted a ‘National Secrecy Phone-In’, on Wednesday 11 February and Thursday 12 February, targeted primarily to Commonwealth public servants, that would give individuals another way to contribute to the Inquiry. The ALRC also initiated a 16

08-09 Annual Report.indd Sec1:16 14/09/2009 2:51:10 PM The Secrecy team: Lisa Eckstein (Legal Officer), Bruce Alston (Senior Legal Officer), Carolyn Adams (Senior Legal Officer), Professor Rosalind Croucher (Commissioner), Anna Dziedzic (Legal Officer), Emeritus Professor David Weisbrot (President), Isabella Cosenza (Senior Legal Officer), Tina O’Brien (Executive/Project Assistant).

‘Talk to Us ... about Secrecy’ interactive online forum that provided another means for engaging with the Inquiry process.

After considering the 46 submissions received, the ALRC then released a more detailed

Discussion Paper, Review of Secrecy Laws (DP 74), on 18 June 2009. This Discussion on Performance Report Paper contained 65 preliminary proposals for reform. The focus of the proposals is on providing a principled basis for a revised general secrecy offence—applicable to all l current and former Commonwealth officers—complemented by criteria for reviewing the plethora of specific secrecy provisions and revised administrative procedures and practices aimed at fostering effective information handling in the public sector. Submissions addressing the proposals contained in the Discussion Paper were due on 7 August 2009.

The ALRC’s ‘mapping’ of the federal statute book identified more than 500 secrecy provisions scattered across 175 pieces of legislation. These provisions include 358 distinct secrecy offences carrying a wide variety of criminal penalties. In addition, under s 70 of the Crimes Act 1914 (Cth) a current or former Commonwealth officer who discloses information acquired by virtue of his or her position, being information which it

is his or her ‘duty’ not to disclose, is guilty of an offence punishable by imprisonment.

The ALRC’s proposals are intended to help move towards a more open and ‘pro- disclosure culture’ in government. The ALRC’s Final Report is due to the Attorney- General on 31 October 2009. Annual Report 2008—09 Report Annual 17

08-09 Annual Report.indd Sec1:17 14/09/2009 2:51:10 PM The Royal Commissions team: (back) Professor Les McCrimmon (Commissioner), Erin Mackay (Legal Officer), Catherine Kelso (Legal Officer), (front) Emeritus Professor David Weisbrot (President), Joyce Chia (Legal Officer).

Review into Royal Commission Act 1902 (Cth) and related issues

On 20 January 2009, the ALRC received Terms of Reference from the Attorney-General to review the operation and provisions of the Royal Commissions Act 1902 (Cth) and related issues. (Terms of Reference in full are at Appendix C).

Royal Commissions occupy a unique place in the Australian system of government, being the highest form of inquiry on matters of public importance. When there are controversial issues that cannot be handled satisfactorily by the courts or the political process, there are invariably calls for the establishment of a Royal Commission.

However, in recent years, some inquiries have experienced difficulties because provisions of the Royal Commissions Act are antiquated or inappropriate. These difficulties have included the power to compel the provision of information, a lack of power to investigate breaches of the Act, the adequacy of penalties for a failure to comply with the Act, and the ability of Royal Commissions to communicate information about unlawful behaviour to law enforcement bodies. Royal Commissions are also often expensive, running into the tens of millions of dollars.

The ALRC was directed to consider whether there is any need to develop an alternative form or forms of Commonwealth executive inquiry, with statutory foundations, to provide more flexibility, less formality and greater cost-effectiveness than a Royal Commission (particularly whether there would be any advantage in codifying special arrangements and powers that should apply to such alternative forms of inquiry). 18

08-09 Annual Report.indd Sec1:18 14/09/2009 2:51:11 PM Other matters that the ALRC was required to consider include:

c whether there is any need to develop special arrangements and powers for inquiries involving matters of national security; c the appropriate balance between powers for persons undertaking inquiries and protections of the rights and liberties of persons interested in, or potentially affected by, inquiries; c the appropriateness of restrictions on the disclosure of information to, and use of information by, Royal Commissions and other inquiries, including restrictions contained in other legislation (but not including those arising from the operation of client legal privilege); and c suggestions for changes to the Royal Commissions Act proposed or raised by Royal Commissions.

Professor Les McCrimmon was appointed the Commissioner in charge of the Royal Commissions Inquiry. The ALRC released its Issues Paper, Review of the Royal Commissions Act (IP 35), in April 2009. An Advisory Committee was set up for the reference with its first meeting due to be held outside this reporting period in July 2009. (A full list of the Royal Commissions Advisory Committee members is at Appendix D).

The Issues Paper contained key questions for the Inquiry and sought feedback from the public. The closing date for submissions in response to IP 35 was 19 May 2009 and the ALRC received 16 submissions. on Performance Report l To date, approximately 60 consultations and roundtables have been held throughout Australia and New Zealand in Perth, Adelaide, Melbourne, Sydney, Alice Springs, Darwin and Wellington (New Zealand) with individuals, government agencies and organisations. The ALRC has talked to past Royal Commissioners, Commissioners who have conducted non-Royal Commission inquiries, judges, counsel assisting, solicitors for parties, barristers, solicitors, academics, senior public servants, witnesses who have appeared before a Royal Commission or other public inquiry, land councils and other groups representing the interests of Indigenous persons, members of the media, union representatives, civil libertarians, and key office holders such as the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman.

Royal Commission consultations by city:

Sydney 17 Canberra 8 Alice Springs 4 Darwin 4 Melbourne 7 Perth 6 Adelaide 4 Telephone conference 4 2008—09 Report Annual Wellington (New Zealand) 5 19

08-09 Annual Report.indd Sec1:19 14/09/2009 2:51:12 PM A more detailed Discussion Paper—which contains preliminary proposals for reform was released in August 2009, outside this reporting period.

The ALRC is due to provide its report to the Attorney-General of Australia by 30 October 2009.

Launch of the Privacy Final Report For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008)

The Privacy Inquiry commenced in early 2006 and the Final Report was tabled in federal Parliament on 11 August 2008. On the same day, the Report was publicly launched at the ALRC offices by Senator the Hon John Faulkner, who was then the Special Minister for State and Cabinet Secretary, and the Attorney-General, the Hon Robert McClelland MP. The three volume, 2,693 page Report is the largest ever produced by the ALRC and consists of 11 Parts, 74 Chapters and includes 295 recommendations for reform. The launch was well attended by media representatives, Advisory Committee members and others who had been involved in the Inquiry. The launch received widespread television, radio and print media coverage and the President Professor David Weisbrot and Commissioner in charge of the Privacy inquiry, Professor Les McCrimmon, conducted a large number of media interviews.

In total, the ALRC received 585 submissions as part of this Inquiry. The Privacy team engaged in the largest consultation effort ever undertaken by the ALRC, which included approximately 250 meetings with individuals, public sector agencies, private organisations, privacy and consumer groups and peak industry associations. The ALRC also held six youth workshops, three public meetings, a two-day ‘Privacy Phone-in’ and numerous roundtables with key stakeholders.

When launching the Report, Senator Faulkner indicated that the government would consider the ALRC’s recommendations in two stages:

c Stage 1 (12–18 months from 11 August 2008) One set of privacy principles Credit reporting and health regulations Education concerning new technology

c Stage 2 Removal of exemptions Data breach notifications

c Concurrent Harmonisation of Commonwealth, state and territory privacy laws Recommendations relating to the Office of the Privacy Commissioner 20

08-09 Annual Report.indd Sec1:20 14/09/2009 2:51:12 PM The ALRC has distributed 420 Parliamentary and 454 stakeholder hard copies of the Privacy Final Report with a further 120 hard copies and over 400 CD-ROM copies sold and distributed.

ALRC consultations 2008–09

In the consultation phases of each inquiry, which are usually held in the research phase before the release of a consultation document, the ALRC endeavours to schedule meetings with relevant individuals and organisations nationally.

During 2008–09, consultations were held around Australia and New Zealand as part of the Secrecy and Royal Commissions inquiries as illustrated below.

Figure 1: Number and Location of Consultations 2008–09

4 Report on Performance Report l

1 1

24 6 4 31

7 5

Annual Report 2008—09 Report Annual 21

08-09 Annual Report.indd Sec1:21 14/09/2009 2:51:12 PM Output 1.2 Information and Education Services

The ALRC promotes community awareness of its work, and of law reform in general, through various activities including the journal Reform, the Kirby Cup law reform competition, the ALRC website, media releases, and contributions to other journals.

Publication of the law reform journal Reform

The ALRC published two editions of its law reform journal, Reform, an important part of the ALRC’s community education and information effort. Reform provides quality discussion of law reform issues aimed at the legal profession, law students and policy advisers as well as the general community. It also provides updates on the work of the ALRC and an overview of current law reform projects within Australia and internationally.

The Reform Editorial Advisory Committee, which consists of academics, legal practitioners, journalists, judicial officers and education officials, meets approximately every 18 months to develop themes for upcoming issues.

Reform: Children and Young People (Issue 92, winter 2008) marked the 10th anniversary of the publication of the ALRC’s Report Seen and Heard: Priority for Children in the Legal Process (ALRC 84, 1997). Articles in this edition of Reform address over a dozen key areas for consideration including:

c the rights and life chances of Indigenous children; c the changes made to the Family Court and the family law system over the last decade—and the positive outcomes for children and young people in family dispute resolution and legal proceedings; c the changing legal framework for inter-country adoption; c the effectiveness of the legal process in protecting children and young people as consumers; c bullying and violence against young people in the workplace; and c the legal, social and ethical issues associated with genetic testing of minors.

The following authors contributed articles to the Issue:

c the Hon Justice Susan Kenny (Federal Court of Australia); c Mr Tom Calma (Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner, Australian Human Rights Commission); c Mr James McDougall (National Children’s and Youth Law Centre); c Ms Tiffany Overall (Youthlaw) and Mr Peter Henley (Mallesons Stephen Jaques);

08-09 Annual Report.indd Sec1:22 14/09/2009 2:51:12 PM c Mr Tim Goodwin (Deputy Chair of the National Indigenous Youth Movement of Australia) and Ms Adele Cox (Chairperson of National Indigenous Youth Movement of Australia); c The Hon Chief Justice Diana Bryant (Family Court of Australia); c Professor Rob White (University of Tasmania); c Ms Jenny Bargen (University of NSW); c Professor Judy Cashmore (Sydney University); c Professor Patrick Parkinson (Sydney University); c Ms Gillian Calvet (NSW Commissioner for Children and Young People); c Mr Luke Bo’sher (Chair, Australian Youth Affairs Coalition); c Mr Luke Evans (Oaktree Foundation); c Professor Margaret Otlowski (University of Tasmania); c Ms Barbara Biggins OAM and Associate Professor Elizabeth Handsley (Flinders University); c Ms Zana Bytheway and Ms Vera Smiljanic (Jobwatch Inc); c Mr Joel Ferrer (Australian Council of Trade Unions); and c Mr Houlton Faleomanu Faasau, Ms Kathleen Kohata and Ms Kate Halliday (Solomon Islands Law Reform Commission). Report on Performance Report l

Annual Report 2008—09 Report Annual 23

08-09 Annual Report.indd Sec1:23 14/09/2009 2:51:12 PM Reform 93: Native Title was published in April 2009, with 16 authors submitting their articles on topics including: a critical look at the workings of the native title system; native title litigation reform; suggestions for improving the operations of the Native Title Act, for better utilising native title agreements and royalty payments to help close the gap between Indigenous and non-Indigenous Australians, and for improving conflict management in native title disputes; implications of the UN Declaration on the Rights of Indigenous Peoples for Australian law; the impacts that an adverse native title determination can have on Indigenous claimants; and a new paradigm of Indigenous involvement in land and water management, based on respect for Indigenous people’s contemporary relationships with their country. The authors include:

c The Hon Jenny Macklin MP (Federal Member for Jagajaga and Minister for Families, Housing, Community Services and Indigenous Affairs); c Mr Tom Calma (Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner, Australian Human Rights Commission); c The Hon Chief Justice Robert French (Chief Justice of Australia); c Mr Steven Ross (Murray Lower Darling River Indigenous Nations) and Mr Neil Ward (Murray-Darling Basin Commission); c Ms Neva Collings (Environmental Defenders Office); c Dr Lisa Strelein (Australian Institute of Aboriginal and Torres Strait Islander Studies); 24

08-09 Annual Report.indd Sec1:24 14/09/2009 2:51:13 PM c Mr Vance Hughston SC (Windeyer Chambers); c Associate Professor Alex Reilly (University of Adelaide); c Mr Sean Brennan (Gilbert & Tobin Centre of Public Law, UNSW); c Ms Monica Morgan (a Yorta Yorta woman); c Emeritus Professor Garth Nettheim (UNSW); c Ms Megan Davis (Indigenous Law Centre); c Mr Tony McAvoy (Frederick Jordan Chambers); c Ms Alison Vivien (Jumbunna Indigenous House of Learning, UTS); and c Mr Graeme Neate (President, National Native Title Tribunal).

Reform Subscriber Survey

In October 2008, the ALRC conducted a readers’ survey in order to continually improve the publication Reform and to ascertain our readers’ critical opinion of the content covered, standard of articles and the current way that Reform is produced and distributed. Survey forms were sent out to subscribers and to those who receive complimentary copies of the publication.

There are currently 195 subscribers (172 nationally and 23 internationally) and 259 organisations and individuals who receive complimentary copies of the publication. Schools and universities represent the largest group of subscribers, followed by government and other agencies and then legal organisations. on Performance Report l Feedback from the survey was extremely positive with most respondents rating both the scope of articles and the level at which they are pitched as being highly appropriate. In the future the ALRC will look to develop our distribution strategies using our website more effectively as an access and promotional tool for the journal.

The ALRC continues to publish the full articles from back issues of Reform on its website. Reform Online articles are available in HTML and RTF formats. Some editions are also available in PDF.

Website

The website remains an important tool for disseminating ALRC consultation papers

and reports and providing updates on the progress of current inquiries. All ALRC publications—as well as ‘plain English’ summaries—are available online.

Consultation documents and final reports, including annual reports, are available in HTML, PDF and as an RTF download. Electronic versions of consultation papers are made publicly available immediately upon completion of the document ensuring the quickest possible release of ALRC consultation documents to our stakeholders. Annual Report 2008—09 Report Annual 25

08-09 Annual Report.indd Sec1:25 14/09/2009 2:51:13 PM As well, the website provides information on the role of the ALRC and its members; regular updates on all ALRC activities and recent law reform publications and areas of law under review (in Australia and internationally); and links and contact details for other law reform agencies.

The ALRC continues its long-standing project to convert older past reports—some of which are currently available only in ASCII (plain text) and Portable Document Format (PDF)—to the more easily accessible hypertext markup language (HTML).

The expansion of the ALRC’s online consultation methods through the introduction of two new ‘Talk to Us’ interactive websites is a significant highlight for the reporting period (Special Features, page 105) and the ALRC anticipates more developments in its online presence in the next reporting period.

Media

The ALRC issues media releases and briefing information at key stages in each inquiry. Media releases are distributed to general and specialised media outlets, as well as to individuals and organisations that have expressed a specific interest in receiving information from the ALRC. They are also available on the ALRC’s website.

In 2008–09, the ALRC distributed 15 media releases, 10 media briefing papers on the Privacy Inquiry Final Report (ALRC 108, 2008) and one media briefing paper for the release of the Discussion Paper for the Secrecy Inquiry. A full list of media releases and briefing papers is provided at Appendix J.

Contributions to external inquiries

The ALRC provides briefings to parliamentary committees, ministers, government departments, and other bodies to ensure that its reports and recommendations are well understood and taken into account in legal policy development, and that the experience and knowledge developed during references are shared for the benefit of the Australian community.

The ALRC also makes written submissions where appropriate.

The ALRC is guided by a protocol that outlines when it is appropriate for the ALRC to make an external submission. The considerations include:

c the consonance of issues raised in the review or inquiry being undertaken by the external body and issues covered in current reference work or past reference work of the ALRC; c the consonance of issues raised in the review or inquiry being undertaken by the body and the expertise and knowledge of current Commissioners and staff members; and c the availability of, and impact upon, ALRC resources. 26

08-09 Annual Report.indd Sec1:26 14/09/2009 2:51:13 PM Where appropriate, submissions are made available on the ALRC website.

During the reporting period, the ALRC made five written submissions drawing on past inquiries.

Table 1: Submissions made by the ALRC to other inquiries Agency Conducting Date of Subject Matter Related ALRC Reference Inquiry Submission

Senate Standing 28 July 2008 Inquiry into Uniform Evidence Law Committee on Legal the Evidence (ALRC 102, 2005) and Constitutional Amendment Bill Affairs 2008 (Cth)

Model Criminal Law 15 January Discussion Paper Essentially Yours: The Officers Committee 2009 on non-consensual Protection of Human of the Standing genetic testing Genetic Information Committee of in Australia (ALRC 96, Attorneys-General 2003)

Senate Standing 15 January Inquiry into Essentially Yours: The Committee on Legal 2009 the Disability Protection of Human and Constitutional Discrimination Genetic Information

Affairs and Other Human in Australia (ALRC 96, on Performance Report Rights Legislation 2003) l Amendment Bill 2008 (Cth)

Senate Standing 18 March 2009 Inquiry into gene Genes and Ingenuity: Committee on patents Gene Patenting and Community Affairs Human Health (ALRC 99, 2004)

Department of the 18 May 2009 Draft Freedom Open Government: A Prime Minister and of Information Review of the Federal Cabinet Amendment Freedom of Information (Reform) Bill Act 1982 (ALRC 77, 2009 (Cth) and 1995); Australia’s

Information Federal Record: A Commissioner Bill Review of Archives Act 2009 (Cth) 1983 (ALRC 85, 1998); For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) Annual Report 2008—09 Report Annual 27

08-09 Annual Report.indd Sec1:27 14/09/2009 2:51:13 PM Performance Report

Output 1.1 Reports and Community Consultation Documents

Table 2: Key Achievements 2008–09 Output 1.1 Target Actual Timely completion of Completion of any Achieved: references within agreed references that have a No references had a parameters reporting date within reporting date within the 2008–09 2008–09 period

Extent to which Positive critical feedback Achieved: publications are received on quality of reports and 87% implementation by stakeholders and consultation documents Media coverage increased stimulate public debate by 55.5%

Distribution of community Publication of one Achieved: consultation documents in community consultation Secrecy—Issues Paper a range of formats document per reference and Discussion Paper Royal Commissions— Issues Paper Over 1,100 consultation documents were distributed

Timely completion of references within agreed parameters

There were no references due to report in the year 2008–09.

The ALRC’s reporting dates are incorporated into the Terms of Reference as determined by the Attorney-General, and settled before the ALRC begins any research on the subject under inquiry.

The ALRC received Terms of Reference in this reporting period for two new inquiries— the review of Commonwealth Secrecy Laws and the Review of the Royal Commissions Act 1902 and related issues. Both these inquiries are due to report in the next reporting period, October 2009.

08-09 Annual Report.indd Sec1:28 14/09/2009 2:51:13 PM Extent to which publications are well received by stakeholders and stimulate public debate

The ALRC is able to gauge the positive critical feedback on the quality of its reports and consultation documents through a number of measures. In particular, the implementation of ALRC recommendations is a key measure of how well received the ALRC’s final reports have been by its key stakeholder, the Australian Government.

Percentage of reports implemented by those to whom recommendations are targeted

The ALRC has no direct role in implementing its recommendations. As there is no statutory requirement for the Australian Government to respond formally to ALRC reports, the ALRC monitors major developments in relation to issues covered in its past reports, and assesses the level of implementation that those reports have achieved. It is not uncommon for implementation to occur some years after the completion of a report.

The record of governments implementing the Commission’s recommendations over the past 33 years highlights its insight, expert analysis and practical grasp of law reform … while the Government can choose to source its advice on law reform from various quarters, the Commission has proven its capabilities and is well equipped to continue to be the foremost law reform institution. Report on Performance Report

R McClelland (Attorney-General) ‘Launch of the Australian Law Reform l Commission report For Your Information: Australian Privacy Law and Practice’, 11 August 2008

Implementation by the Australian Government is not the sole measure of the success of a report. Increasingly, the ALRC makes recommendations aimed at other bodies, including the courts, regulators, other government instrumentalities, the legal profession, educators, and other professions and industries. For example, the recommendations in Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) were directed at 31 different ‘actors’, of which the Australian Government was only one. In that report, the ALRC included for the first time an Implementation

Schedule to make clear which institution carried responsibility for implementing each recommendation—as well as to facilitate the monitoring of implementation. Monitoring implementation therefore involves consideration of the actions of all of these bodies and not merely the enactment of legislation.

The ALRC considers that a report is substantially implemented when the majority of the report’s recommendations, including key recommendations, have been implemented Annual Report 2008—09 Report Annual 29

08-09 Annual Report.indd Sec1:29 14/09/2009 2:51:13 PM by those to whom the recommendations are directed. Partial implementation refers to implementation of at least some recommendations of an ALRC report. The ALRC takes a conservative approach when considering whether a report should be characterised as having been ‘partially’ or ‘substantially’ implemented. The term proposals under consideration applies to reports that have received a positive response from those to whom the recommendations are directed, but are still awaiting implementation, and to those that have been completed within the past two years and are yet to receive a formal response.

Implementation activity undertaken in 2008–09 has led to adjustment of some of the classifications of the implementation status of reports. As at 30 June 2009:

c 60% of reports had been substantially implemented; c 27% of reports had been partially implemented; c 8% of reports without any implementation to date were currently under consideration; and c 5% of reports had not been implemented.

Chart 1 indicates the implementation status of ALRC reports as at 30 June 2009 and Appendix F provides a detailed update on action in relation to ALRC reports during 2008–09. Appendix G provides a brief overview of the implementation status of every ALRC report. The ALRC website includes a running description of all implementation activity that has occurred in relation to each report since tabling.

Chart 1: Implementation status of ALRC Reports as at 30 June 2009

08-09 Annual Report.indd Sec1:30 14/09/2009 2:51:13 PM Substantial implementation

As at 30 June 2009, the ALRC had completed 75 reference-related reports. Forty-five (60%) of those reports have been substantially implemented. During 2008–09, activity in relation to two reports moved them up to the status of substantial implementation. Both these reports had previously been classified as partially implemented.

The Evidence Amendment Act 2008 (Cth) was assented to on 1 January 2009, substantially implementing the recommendations of Uniform Evidence Law (ALRC 102, 2005). The amending Act incorporates almost all of the recommendations of Uniform Evidence Law.

In 2008–09, the ALRC reassessed the implementation status of Essentially Yours: The Protection of Human Genetic Information (ALRC 96, 2003). A number of the report’s key recommendations have been implemented, including recommendations relating to the establishment of the Human Genetics Advisory Committee, health privacy, medical genetic testing, human genetic research and databases, insurance, parentage testing, law enforcement, genetic information and sport, and the identification of deceased individuals.

…this bill [Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth)] makes changes that have been reviewed and

considered carefully, not only by the Attorney-General’s Department but by on Performance Report respected bodies that include the Productivity Commission, the Australian l Law Reform Commission and committees of this parliament.

Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2009, 1153 (R Debus—Minister for Home Affairs)

The ALRC considers that the recommendations of Essentially Yours have been substantially implemented following activity in relation to some of the report’s key recommendations in the reporting period. The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) implemented two key recommendations of Essentially Yours:

c amendment of the definition of ‘disability’ in the Disability Discrimination Act 1992 (Cth) to clarify that the legislation applies to discrimination based on genetic status (Recommendation 9–3); and c amendment of the Disability Discrimination Act to prohibit an employer from requesting or requiring information, including genetic information, from a job applicant or employee, except where the information is reasonably required for purposes that do not involve unlawful discrimination (Recommendation 31–3). Annual Report 2008—09 Report Annual 31

08-09 Annual Report.indd Sec1:31 14/09/2009 2:51:14 PM Further, in June 2009, the National Health and Medical Research Council (NHMRC) finalised the Guidelines for National Privacy Principles about Genetic Information under s 95AA of the Privacy Act. The Guidelines outline when genetic information may be used and disclosed by health professionals for the purposes of lessening or preventing a serious threat to the life, health or safety of an individual, as recommended in Essentially Yours (Recommendation 21–1).

Partial implementation

Twenty-two reports (27% of all ALRC reference-related reports) have been partially implemented. This represents two fewer reports partially implemented than at 30 June 2008. As noted above, the status of Uniform Evidence Law and Essentially Yours changed in 2008–09, from partial implementation to substantial implementation.

T The Archives Amendment Bill 2008 (the Bill) proposes changes to the Archives Act 1983 (the Act) that will implement certain recommendations of the Australian Law Reform Commission’s Report number 85, ‘Australia’s Federal Record: A Review of the Archives Act 1983’.

Commonwealth, Parliamentary Debates, Senate, 17 September 2008, 4983 (J Faulkner, Special Minister of State and Cabinet Secretary)

Two reports that had been partially implemented in previous reporting periods were further implemented in 2008–09. The Archives Amendment Act 2008 (Cth) implemented a number of the ALRC’s recommendations in Australia’s Federal Record: A Review of Archives Act 1983 (ALRC 85, 1998); and the Evidence Amendment Act 2008 (Cth) implemented a number of recommendations in Seen and heard: priority for children in the legal process (ALRC 84, 1997) that were also incorporated into the Uniform Evidence Law report.

A number of ALRC reports that have been partially implemented in previous reporting periods are also being considered for further implementation—the degree of implementation is indicated in Appendix F.

Active consideration

Six reports (8% of all ALRC reference-related reports) have not been implemented to date but are under active consideration. Although there was no change in the number of reports under consideration in 2008–09, there was significant activity in relation to a number of those reports.

08-09 Annual Report.indd Sec1:32 14/09/2009 2:51:14 PM The Commission’s Privacy Report is timely. Not only is it the Commission’s largest consultation exercise ever undertaken, but it is a classic example of the importance of the work of the Commission in developing proposals for reform of our law—including its simplification and modernisation.

R McClelland (Attorney-General) Launch of the Australian Law Reform Commission report ‘For Your Information: Australian Privacy Law and Practice’, 11 August 2008

At the launch of For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) on 11 August 2008, Senator the Hon John Faulkner announced that the Government would consider implementation of the ALRC report in two stages. See page 20.

The Government will honour its election commitment to implement the recommendations of the Australian Law Reform Commission in July 2006 on federal sedition laws.

R McClelland (Attorney-General), ‘Comprehensive Response To National Security Legislation Reviews’ (Press Release, 23 December 2008) Report on Performance Report l On 23 December 2008, the Australian Government released a formal response to Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006) supporting almost all of the report’s recommendations. The response indicated that the Australian Government will introduce legislation to implement the recommendations in 2009.

The Government proposes to release a draft bill for public comment as early as practicable in 2009 ... Proposals in that bill will in part be drawn from key recommendations of the joint Australian Law Reform Commission and Administrative Review Council 1995 Open Government Report.

Commonwealth, Parliamentary Debates, Senate, 26 November 2008, 7293 (J Faulkner, Special Minister of State and Cabinet Secretary)

In 2008–09, Open Government: A Review of the Federal Freedom of Information Act 1982 (ALRC 77, 1995) was under active consideration with the introduction of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth) Annual Report 2008—09 Report Annual 33

08-09 Annual Report.indd Sec1:33 14/09/2009 2:51:14 PM into the Australian Parliament, and the release of exposure drafts of the Information Commissioner Bill 2009 (Cth) and the Freedom of Information Amendment (Reform) Bill 2009. If passed, these bills will substantially implement the recommendations of the ALRC’s 1995 Open Government Report.

In Personal Property Securities (ALRC 64, 1993), the ALRC identified the need for a single national system to determine priorities between competing personal property security interests and to provide a means of resolving disputes between security interest holders and third parties, including a national register of personal property security interests. In June 2009, the Australian Government introduced the Personal Property Securities Bill 2009 (Cth) into the Australian Parliament which, if passed, will substantially implement the ALRC’s recommendations in the Personal Property Securities report.

Nil implementation

Four of the 75 reference-related reports completed by the ALRC (5%) have not been implemented at all, and do not appear to be under active consideration. Two of those reports cover the same topic of public interest standing (Beyond the Doorkeeper— Standing to Sue for Public Remedies (ALRC 78, 1996) and Standing in Public Interest Litigation (ALRC 27, 1985)).

Positive critical feedback on quality of reports

The ALRC continued to receive positive feedback on the quality of its work and inquiry reports during the reporting period.

ALRC reports continue to inform parliamentary debate. For example, in this reporting period, ALRC reports were referred to in debates on the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), the Archives Amendment Bill 2008 (Cth), and the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth).

ALRC reports are also cited by Australian courts and tribunals (see discussion below and Appendix H), and in numerous academic articles and other publications.

Court citations

During 2008–09, there were more than 43 references to ALRC reports in reported decisions of major courts and tribunals, including three High Court of Australia decisions, 16 Federal Court of Australia decisions, and 19 decisions of state and territory Supreme Courts or Courts of Appeal, as well as decisions of other courts and tribunals. A full list of court and tribunal citations identified by the ALRC is included in Appendix H.

08-09 Annual Report.indd Sec1:34 14/09/2009 2:51:14 PM Speaking engagements concerning current inquiries

The reaction to publications and their role in public debate is also indicated by the degree to which Commissioners and staff are invited to speak about current inquiries and consultation papers. In 2008–09:

c The President, Professor David Weisbrot, and Commissioner in charge of the Privacy Inquiry, Professor Les McCrimmon delivered a media briefing to over 50 media representatives for the launch of For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), August 2008. c Commissioner, Professor Les McCrimmon presented ‘Reform of Australian Privacy Laws—the Potential Impact on Business’ to the Australian Direct Marketing Association, August 2008. c Commissioner, Professor Les McCrimmon delivered a presentation ‘Privacy and the Public Sector: Future Developments’, to the NSW Government Solicitors Conference, September 2008. c Commissioner, Professor Les McCrimmon presented ‘Getting the Balance Right: Privacy and Freedom of Expression’ to the Judicial Conference of Australia Colloquium, October 2008. c Commissioner, Professor Les McCrimmon gave a speech ‘Final Stage of Implementation: ALRC Privacy Report’, at the 13th Annual Public Law Weekend,

October 2008. on Performance Report c Commissioner, Professor Les McCrimmon delivered a speech ‘Privacy and l Business: Challenges and Opportunities’ to the Media Communications & Technology Law Conference, November 2008. c Commissioner, Professor Rosalind Croucher gave a presentation ‘Review of Secrecy Laws: Inquiry Snapshot’, to the Secrecy Forum Commonwealth Public Servants Union, February 2009. c Commissioner, Professor Les McCrimmon delivered a presentation ‘Royal Commissions and Other Forms of Public Inquiry’ at the Australian Institute of Administrative Law, May 2009.

Speaking engagements concerning past reports

One indicator of the quality of ALRC reports and inquiry work are held is the number of

requests received by the ALRC for Commissioners and staff to speak about past ALRC reports and about law reform in general. In 2008–09:

c Commissioner, Professor Rosalind Croucher delivered a keynote speech ‘The ALRC’s Report on Client Legal Privilege: Implications for Lawyers in the Public Sector’, at the 4th Annual Public Sector In-house Counsel Conference Sydney, August 2008. Annual Report 2008—09 Report Annual 35

08-09 Annual Report.indd Sec1:35 14/09/2009 2:51:14 PM c Commissioner, Professor Les McCrimmon gave a speech ‘Reform of the Uniform Evidence Act’, for the NSW Young Lawyers Evidence Act Seminar, October 2008. c The President, Professor David Weisbrot delivered an address ‘Human Genetics: From Research Findings and Public Consultation to Policy and Law Reform’, at the Australia–New Zealand Roundtable on Genetics, November 2008. c Commissioner, Professor Les McCrimmon gave a speech ‘Justice, Law Reform and the Clinical Method’ to the 5th Global Alliance for Justice Education (GAJE) Worldwide Conference, Manila, December 2008. c Commissioner, Professor Rosalind Croucher gave a speech ‘Privilege in Perspective—the ALRC’s Report on Client Legal Privilege and Federal Investigations’ to Ethics students of Macquarie Law School, Macquarie University, March 2009. c The President, Professor David Weisbrot delivered a presentation ‘Regulation or Choice: Direct-to-Consumer DNA Testing and the Public Interest’, at the Royal College of Pathologists Australasia (RCPA) XXVth World Congress 2009, March 2009. c The President, Professor David Weisbrot delivered a presentation ‘The ALRC and the Challenges of National Law Reform’ at the Legal Studies Association Annual Conference, April 2009.

A full list of presentations made by Commissioners and staff is included in Appendix I.

Public debate

The ALRC actively promotes public debate on issues raised by its current and past inquiries, and on law reform generally. The ALRC monitors public discourse by keeping a register of media reports, journal articles, conference papers and parliamentary debates.

Media Interest

There was significant media interest and public discussion around the issues addressed as part of current and recently completed ALRC inquiries. Over half of the total media articles monitored mentioned the release of the Privacy Final Report For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008). Media coverage was national and included national television news and current affairs; metropolitan morning, drive and talkback radio; regional radio; metropolitan and regional newspapers; financial, IT, health, legal and government trade press; and online publications.

Media interest in the ALRC’s law reform work continued to increase significantly in 2008–09, with 681 articles monitored during the reporting period—compared to 438 articles monitored in 2007–08. This is a 55.5% increase in coverage in the 2008–09 period compared to the previous year. 36

08-09 Annual Report.indd Sec1:36 14/09/2009 2:51:14 PM Table 3: Media Articles 2008–09 Paper Number of media articles Privacy Final Report 363 For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) Secrecy Issues Paper 53 Review of Secrecy Laws (IP 34, 2008)

Secrecy Discussion Paper 14 Review of Secrecy Laws (DP 74, 2009)

Royal Commission Issues Paper 27 Review of the Royal Commissions Act, and the Royal Commissions Inquiry generally (IP 35, 2009).

Past reports continued to receive media attention, particularly, Essentially Yours: the Protection of Human Genetic Information in Australia (ALRC 96, 2003); and Genes and Ingenuity: Gene Patenting and Human Health (ALRC 99, 2004).

Commissioners and staff of the ALRC conducted 73 interviews in on Performance Report 2008–09 with print, radio and television and online media outlets. l

Distribution of community consultation documents

The effectiveness and positive reception of the ALRC’s consultation documents can be measured by the extent to which stakeholders request access to these documents, both in hard copy and online. Another is the willingness of stakeholder groups to make submissions and participate in consultation meetings as a result.

At the start of each new reference, with assistance from its Advisory Committee and as a result of extensive consultations, the ALRC identifies a range of stakeholders for each inquiry. These individuals and organisations are sent copies of consultation papers

immediately upon their release.

The ALRC website also allows individuals and organisations to register an interest in a particular inquiry, or to receive information via email or fax on the ALRC’s activities. People who register an interest in an inquiry automatically receive consultation papers for that reference, at no cost. Annual Report 2008—09 Report Annual 37

08-09 Annual Report.indd Sec1:37 14/09/2009 2:51:14 PM Recipients of ALRC publications are asked about their preferred format for receiving consultation papers and reports. Increasingly people are electing to receive ALRC publications via CD-ROM or online, instead of in a traditional hard copy format.

Table 4: Distribution of consultation papers 2008–09 Consultation paper Date released Hard copies CD-ROMs HTML pages PDFs distributed distributed visited requested Secrecy Issues 9 December 323 19 10,391 6,876 Paper (IP 34) 2008

Royal Commissions 6 April 2009 385 21 6,604 4,664 Issues Paper (IP 35)

Secrecy Discussion 18 June 400 19 7,818 6,338 Paper (DP 74) 2009

Total 1,108 59 24,813 17,878

The number of submissions received by the ALRC is also a measure of the public’s engagement with the work of the ALRC and the extent to which our consultation papers have been well received and have stimulated debate and discussion.

Table 5: Number of Submissions received 2008–09 Consultation paper Date released Submissions received Secrecy Issues Paper (IP 34) 9 December 2008 46

Royal Commissions Issues Paper (IP 35) 6 April 2009 16

Secrecy Discussion Paper (DP 74) 18 June 2009 Submissions due August 2009

08-09 Annual Report.indd Sec1:38 14/09/2009 2:51:14 PM Output 1.2 Information and Education Services

Table 6: Key Achievements 2008–09 Output 1.2 Target Actual Level of use of ALRC Sustained increase in Achieved: website website hits Website hits increased by 6.3%

Regular publication of Publication of two Achieved: Reform editions of Reform Reform 92, ‘Children and Young People’ published in September 2008 Reform 93, ‘Native Title’ published in April 2009 Level of involvement in Regular contributions Achieved: public discussions and to external journals, Commissioners and staff debates concerning law public speaking conducted 73 interviews in print, reform issues engagements and TV and radio; produced 7 articles institutional visits to external publications, made public addresses at 27 separate events; and hosted 19 institutional visits. on Performance Report l

Level of use of ALRC website

The ALRC recognises the importance of an effective online presence in delivering its twin objects of conducting its inquiries and educating the community about law reform.

Website hits

The ALRC website recorded a steady if modest 6.3 per cent increase in hits from 2007–08 to 2008–09, continuing a pattern set over the past few years. Graph 1 shows the number of hits on ALRC web pages from 2004–05 to the current reporting period.

Annual Report 2008—09 Report Annual 39

08-09 Annual Report.indd Sec1:39 14/09/2009 2:51:14 PM Graph 1: Number of website hits to ALRC website

2008-09

2007-08

2006-07

2005-06

2004-05

0 500,000 1,000,000 1,500,000 2,000,000 2,500,000

Distinct hosts served

The number of ‘distinct hosts served’ on the ALRC website provides an indication of the number of different users—either whole organisations with networked computers or individuals with stand-alone internet connections—visiting the ALRC website.

Over the past few years there has been little change in numbers of distinct hosts served on the ALRC website, despite the steady increase in website traffic (in terms of ‘hits’).

The ALRC will be undertaking a major re-development of its website in the coming year and it is hoped that greater interactivity and a more dynamic use of online communication strategies will increase our engagement across the community and will see an increase in the number of distinct hosts served in the next reporting period.

Graph 2: Number of distinct hosts served on ALRC website (www.alrc.gov.au)

Jan-June 09 July-Dec 08 Jan-Jun 08 July-Dec 07 Jan-June 07 July-Dec 06 Jan-June 06 July-Dec 05 Jan-June 05 July-Dec 04

0 5,000 10,000 15,000 20,000 25,000 30,000 35,000 40,000 45,000

08-09 Annual Report.indd Sec1:40 14/09/2009 2:51:14 PM The ALRC website is divided into two separate sections—pages on the ALRC website ; and a large database of publications , which is part of the Australasian Legal Information Institute (AustLII) library. The statistics referred to above represent access to .

An interesting point drawn out by website statistics for the publications side of the website is the continued popularity of several older ALRC reports, evidence that the work of the ALRC retains its value and influence well beyond the immediate publication of a final report.

Table 7 shows the 10 most accessed final reports on the ALRC website—according to requests for pages within a report.

Table 7: Top Ten ALRC Reports Accessed Online 2008–09 ALRC Report Page visits For Your Information: Review of Privacy Law and Practice 85,471 (ALRC 108, 2008)

General Insolvency Inquiry (ALRC 45, 1988) 45,123

Privilege in Perspective: Client Legal Privilege in Federal 39,059 Investigations (ALRC 107, 2007) on Performance Report l Essentially Yours: The Protection of Human Genetic 24,876 Information in Australia (ALRC 96, 2003)

Uniform Evidence Law (ALRC 102, 2005) 23,531

Insurance Contracts (ALRC 20, 1982) 20,547

Fighting Words: A Review of Sedition Laws 15,528 (ALRC 104, 2006) Managing Justice: A Review of the Federal Justice System 12,281 (ALRC 89, 2000)

Evidence (Interim) (ALRC 26, 1985) 12,268

Contempt (ALRC 35, 1987) 10,745 Annual Report 2008—09 Report Annual 41

08-09 Annual Report.indd Sec1:41 14/09/2009 2:51:14 PM Regular Publication of Reform

The ALRC met its target to publish two editions of its journal Reform: Reform 92, ‘Children and Young People’, published in September 2008; and Reform 93, ‘Native Title’, published in April 2009.

Regular contributions to external journals, public speaking engagements and institutional visits

External journals In 2008–09, the ALRC contributed 7 articles to external publications, made In 2008–09,public ALRC addresses members at 27 and separate staff published events, and seven hosted articles 19 institutionalin external journals. visits. A selected list of articles is included in Appendix H. Members and staff regularly contribute to the ALRC’s own journal, Reform.

Public speaking engagements

ALRC members and staff are frequently invited to speak at conferences and seminars in relation to the ALRC’s current or past work program, or in relation to law reform in general. In 2008–09, Commissioners and staff made presentations at 27 separate functions on behalf of the ALRC. A list of these presentations is provided in Appendix I.

Institutional visits

The ALRC regularly hosts interstate and international visitors interested in discussing general law reform issues or particular issues relating to past or current ALRC inquiries.

The ALRC hosts many visits from broad-based delegations of government officials and parliamentarians as well as visits by representatives of national and overseas law reform agencies. During 2008–09, the ALRC was pleased to welcome:

c The Hon Robert McClelland MP, Attorney-General of Australia and Senator the Hon John Faulkner, Special Minister for State and Cabinet Secretary; c 34 Fellows and Ex-Officio Members of the Australian Academy of Law; c Professor Pam Peters from Macquarie University; c Teachers and students from Dubbo Senior College; c Visitors from the Swedish Parliament—The Riksdag delegation; c Dr Rebecca Bradfield, Senior Researcher, Tasmania Law Reform Institute; c Representatives from the Women’s Lawyers Association of New South Wales Policy, Law and Media Issues sub-committee; c Representatives from the University of St Thomas, Minnesota, USA, University of Denver Sturm and University of Technology Sydney; c Ms Laura Watts, Senior Research Manager of the British Columbia Law Institute; and 42

08-09 Annual Report.indd Sec1:42 14/09/2009 2:51:14 PM c Ms Leilani Tuala-Warren, Executive Director of the Samoan Law Reform Commission. Meetings with these visitors included discussion of current and past ALRC inquiries, general law reform issues, developments in international law, operational matters, library management, legal studies syllabus and opportunities for collaboration.

A list of visitors to the ALRC during 2008–09 is included in Appendix K.

Significant Developments for the ALRC in 2009–2010

The coming year promises to be one of change for the ALRC, including the appointment of a new President and Commissioner/s. As indicated in his opening remarks to this Report, Emeritus Professor David Weisbrot will retire from the presidency of the organisation, being the longest serving president in the ALRC’s history. Commissioner, Professor Les McCrimmon’s five-year term at the ALRC will also end in November.

Since the public release of the Uhrig Review in August 2004, the ALRC has faced a possible decision to move from a Commonwealth Authorities and Companies Act agency to an Financial Management Accountability Act agency. Should this occur, the

ALRC will be required to make significant changes to its administrative and governance on Performance Report arrangements. l

The ALRC’s Union Collective Agreement expires in July 2010, and in February the ALRC will embark on a process to develop a new enterprise agreement in line with the requirements of the Fair Work Act 2009 (Cth) and associated transitional legislation. During this process the organisation will have to continue to find productivity gains recognising that in the current economic climate, funding increases are unlikely, while costs continue to rise.

These possible developments will be closely monitored to ensure that the ALRC is fully prepared to embark on any necessary change and that our core inquiry work is not adversely affected during any organisational change that may occur.

Annual Report 2008—09 Report Annual 43

08-09 Annual Report.indd Sec1:43 14/09/2009 2:51:14 PM Corporate Governance

Executive Director, Ms Sabina Wynn; Commissioner, Professor Rosalind Croucher; President, Emeritus Professor David Weisbrot AM; Commissioner, Professor Les McCrimmon.

08-09 Annual Report.indd Sec1:44 14/09/2009 2:51:14 PM Corporate Governance Framework

Australian Law Reform Commonwealth Authorities & Commission Act 1996 (Cth) Companies Act 1997 (Cth) (ALRC Act) (CAC Act) Enabling legislation Reporting and accountability legislation

Australian Law Reform Commission

CORPORATE PLAN Board of Audit 2006–08 Management Committee REPORTING OBLIGATIONS Documents the ALRC’s set out under the CAC Act goals, objectives and key priorities

Quality and quantity ROLE AND FUNCTIONS PERFORMANCE measures for set out in ALRC Act MEASUREMENT outcomes and outputs

ACCOUNTABILITY TO GOVERNMENT through CAC Act reporting requirements

Annual Report 2008—09 Report Annual 45

08-09 Annual Report.indd Sec1:45 14/09/2009 2:51:15 PM Statement of Governance

Ministerial powers

The Minister responsible for the ALRC is the Attorney-General of Australia, the Hon Robert McClelland MP.

Under s 20 of the Australian Law Reform Commission Act 1996 (the ALRC Act), the Attorney-General may refer matters to the ALRC for review. In 2008–09, two new matters were referred to the ALRC—a review into Commonwealth Secrecy laws and a review of the Royal Commissions Act 1902 (Cth) and related issues.

Under s 28 of the Commonwealth Authorities and Companies Act 1997 (Cth) (the CAC Act), the Attorney-General may advise the ALRC of a requirement to comply with a general policy of the Australian Government. During 2008–09, the ALRC was not required to comply with any additional Australian Government policies.

Members of the Commission

Table 8 lists members of the ALRC during 2008–09, and the term of each appointment. As at 30 June 2009, there were five members of the ALRC—three full-time members and two part-time members.

The ALRC Act states that the ALRC shall consist of a President, Deputy President and at least four other members (also known as Commissioners). Each member is appointed by the Governor-General on either a full-time or a part-time basis. The President and Deputy President must be full-time members. Under s 6(2) of the ALRC Act, the Commission’s functions and powers are not affected by vacancies in any position.

08-09 Annual Report.indd Sec1:46 14/09/2009 2:51:15 PM Table 8: Members 2008–09 Commissioner Term of Current Appointment

Full-time Commissioners

Emeritus Professor David Weisbrot AM 8 August 2005 to 7 August 2009, and (President) extended to 30 November 2009 BA (Hons) (Queens Coll) JD (UCLA), FAAL

Professor Les McCrimmon 4 January 2005 to 30 June 2009, and BA LLB (Alberta) LLM (Qld) extended to 30 November 2009

Professor Rosalind Croucher 5 February 2007 to 4 February 2010 BA (Hons) LLB (Syd) PhD (UNSW) AMusA (AMEB), FRSA, FACLM (Hon), FAAL, TEP

Part-time Commissioners

Justice Susan Kenny 14 May 2006 to 13 May 2009, and BA (Hons) LLB (Hons) (Melb) reappointed from 9 July 2009 to 8 July DPhil (Oxon) 2012

Justice Robert French 15 July 2006 to 14 July 2009; BSc/LLB (UWA) resigned effective from 1 September 2008 Justice Berna Collier 2 October 2007 to 1 October 2010 BA, LLB (Qld), LLM (Melb) Corporate Governance l

Annual Report 2008—09 Report Annual 47

08-09 Annual Report.indd Sec1:47 14/09/2009 2:51:15 PM Full-time members

Emeritus Professor David Professor Les Professor Rosalind Weisbrot AM. McCrimmon. Croucher. Emeritus Professor Professor McCrimmon Professor Croucher Weisbrot has held the was appointed as a full- was appointed as a position of President of time Commissioner for a full-time Commissioner the ALRC since June term of three years from for a term of three 1999. His initial three-year 4 January 2005. This term years, commencing term has been extended has been extended three on 5 February 2007 three times—in 2002, in times and he will retire to 4 February 2010. August 2005, and June from the Commission in Professor Croucher is 2009. He will retire from November 2009. Professor currently Commissioner the Commission on McCrimmon is chair of in charge of the 30 November 2009. the Audit Committee and Secrecy Inquiry. Commissioner in charge of Professor Weisbrot is the the Inquiry into the Royal Chief Executive Officer Commission Act 1902 of the ALRC. He jointly (Cth) and related issues. chairs each ALRC inquiry with the Commissioner in charge. The President has primary responsibility for liaising with the Australian Government, Parliament, stakeholders, and other law reform commissions and agencies in Australia and overseas.

08-09 Annual Report.indd Sec1:48 14/09/2009 2:51:15 PM Part-time members

Justice Susan Kenny. Justice Robert French. Justice Berna Collier. Justice Kenny was Justice French was Justice Collier was initially appointed a part- appointed to the ALRC as appointed a part- time Commissioner of a part-time Commissioner time Commissioner the ALRC on 14 May for a period of three years, for a term of three 2006. She has been commencing on 15 July years, commencing reappointed as a part- 2006. He had been a on 2 October 2007. time Commissioner from judge of the Federal Court She has been a judge 9 July 2009 to 8 July 2012. of Australia, based in of the Federal Court She is a Judge of the Perth, since November of Australia, based Federal Court of Australia, 1986. Justice French in Brisbane, since based in Melbourne. resigned from the ALRC as February 2006. During During 2008–09, Justice Commissioner when he took 2008–09, Justice Collier Kenny served on the up his appointment as Chief served on the Divisions

Divisions dealing with both Justice of the High Court of dealing with both the Corporate Governance

the Secrecy and Royal Australia on 1 September Secrecy and Royal l Commission inquiries. 2008. Commission inquiries.

Remuneration

The Commonwealth Remuneration Tribunal determines the remuneration for all ALRC

members.

Full Commission meetings

A meeting of all full-time and part-time ALRC members—known as the Full Commission—is convened twice a year. These meetings provide an opportunity to discuss the progress of current inquiries, the ALRC’s financial performance and other Annual Report 2008—09 Report Annual 49

08-09 Annual Report.indd Sec1:49 14/09/2009 2:51:16 PM Farewell to: Farewell to: The Hon Chief Justice The HonRobert Chief Shenton Justice French Robert Shenton French

The Australian Law Reform Commission (ALRC) was delighted with the appointment of one of its part-time Commissioners, the Hon Justice Robert Shenton French, as the Chief Justice of the High Court of Australia.

Chief Justice French took on the mantle of Australia’s most senior jurist on 1 September 2008, with the retirement of the Hon Chief Justice Murray Gleeson AC.

Chief Justice French had been a judge of the Federal Court of Australia, based in Perth, since 1986. He graduated from the University of Western Australia with a Bachelor of Science and Bachelor of Laws degrees. He practised for 11 years as a barrister and solicitor and then at the Western Australian Bar for three years. At the time of his appointment to the Federal Court, he was Chairman of the Town Planning Appeal Tribunal of Western Australia, a Member of the Law Reform and Legal Aid Commissions of Western Australia, and an Associate Member of the Trade Practices Commission.

Chief Justice French was the first President of the Native Title Tribunal. In 2003, he was appointed as a permanent non-resident member of the Supreme Court of Fiji and in 2004 as an Additional Judge of the Supreme Court of the Australian Capital Territory. In 2005, Chief Justice French was appointed as a Deputy President of the Australian Competition Tribunal. He is also a Foundation Fellow of the Australian Academy of Law.

Chief Justice French joined the ALRC as a part-time Commissioner on 15 July 2006, and was an integral part of the inquiries that led to the reports Privilege in Perspective: Client Legal Privilege and Federal Investigations (ALRC 107, 2007) and For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008).

On Chief Justice French’s retirement from the ALRC, President Professor David Weisbrot said, ‘Justice French is a brilliant scholar, creative thinker and outstanding judge, and was a wonderful colleague who made a very valuable contribution to the work of the ALRC. We miss him greatly at the Commission, but recognise the enormous contribution he is making—and will continue to make—to law and justice, and to the nation, in his current capacity.’ 50

08-09 Annual Report.indd Sec1:50 14/09/2009 2:51:17 PM matters of interest to Commissioners. Full Commission meetings were held in Sydney on 24 July 2008 and on 4 December 2008.

Divisions

Section 40 of the ALRC Act permits the President to constitute Divisions of the ALRC, which identify the members of the ALRC who are formally responsible for each inquiry. One full-time Commissioner generally manages each reference team, although all full- time Commissioners and the nominated part-time Commissioners normally assume collegial responsibility in relation to the findings and recommendations in all references.

Table 9 sets out the Divisions as they were constituted in 2008–09.

Table 9: Divisions of the ALRC 2008–09 Division Membership Secrecy Inquiry Professor David Weisbrot (President) Professor Rosalind Croucher † Professor Les McCrimmon Justice Susan Kenny Justice Berna Collier

Royal Commissions Inquiry Professor David Weisbrot (President) Professor Les McCrimmon † Professor Rosalind Croucher Justice Susan Kenny Justice Berna Collier

† Commissioner in charge of the reference Corporate Governance l

Board of Management

The Board of Management—a requirement under the ALRC Act—is constituted by the President and other full-time Commissioners of the ALRC. While Divisions have responsibility for legal policy decisions relating to specific references, the Board of

Management is the ALRC’s governance body, with responsibility for general oversight of ALRC operations, including budget and policies.

The dates of Board of Management meetings in 2008–09 and the attendance of Full- time Commissioners at those meetings are set out in Table 10. Annual Report 2008—09 Report Annual 51

08-09 Annual Report.indd Sec1:51 14/09/2009 2:51:17 PM Table 10: Attendance at Board of Management and Full Commission meetings in 2008–09

21 Jul 08 22 Sep 08 4 Dec 08 12 Feb 09 2 Apr 09 18 May 09

Prof Weisbrot 999999

Prof McCrimmon 999999 Prof Croucher 999999 Justice Collier 99 Justice Kenny 99

The Executive Director attends all Board of Management meetings and staff representatives attend Board of Management meetings at the open invitation of the Board. The Audit Committee is the only sub-committee of the Board of Management.

Audit Committee

In accordance with s 32 of the CAC Act, the ALRC has an Audit Committee to oversee compliance with financial and auditing obligations and to liaise with external auditors.

The role of the Audit Committee is directed towards:

c enhancing the control framework; c improving the objectivity and reliability of externally published financial information; and c assisting the Board to comply with legislative and other obligations.

The Audit Committee consists of a full-time Commissioner, the Executive Director and the Finance Manager. During 2008–09, the members of the Audit Committee were:

Commissioner: Professor Les McCrimmon

Executive Director: Ms Sabina Wynn

Finance Manager: Ms Maria Zacharia

A representative of the Australian National Audit Office (ANAO) is invited to attend meetings of the Audit Committee. The Audit Committee met twice in the reporting period, on 3 July 2008 and 16 February 2009.

08-09 Annual Report.indd Sec1:52 14/09/2009 2:51:17 PM Audit

Under s 8 of the CAC Act, the Auditor-General inspects and audits the accounts and records of the ALRC’s financial transactions and assets. The audit of the 2008–09 financial statements was performed by the ANAO.

Internal ALRC Policies

The ALRC’s Policy Manual contains the ALRC’s current policies, guidelines and procedures on a range of administrative matters. ALRC policies are regularly reviewed and revised as required. All new and revised policies are approved by the Board of Management.

The following policies were updated and revised during 2008–09:

Code of Conduct Fraud Control Policy Cabcharge and e-ticket Policy Parliamentary Pass Policy Occupational Health and Safety Policy Environmental Management Policy Personal Use of Telephone Policy Purchasing Policy and Procedures Travel Policy Promotions Policy

New Policies were developed during 2008–09 as follows: Corporate Governance l Work from Home Policy Health and Safety Management Arrangements Employment Policy

Policies that concern interaction with members of the public are published on the ALRC website. New staff members are advised of ALRC policies as part of the induction

process and all staff have access to the Policy Manual. Compliance with ALRC policies is a criterion in each employee’s annual performance appraisal.

A full list of ALRC policies is included in Appendix B. Annual Report 2008—09 Report Annual 53

08-09 Annual Report.indd Sec1:53 14/09/2009 2:51:17 PM Ethics

The ALRC fosters a culture of integrity, honesty and fairness in the workplace and actively seeks to comply with all relevant laws, regulations, codes and government standards.

The ALRC’s Code of Conduct outlines the expectations applied to staff in relation to their conduct in the performance of their job, including interactions outside and within the workplace. The ALRC’s Code and Conduct was updated in April 2009 and requires all employees to comply with certain standards when acting in the course of their employment.

The ALRC Code of Conduct requires that an employee must:

c behave honestly and with integrity in the course of their employment; c act with care and diligence in the course of their employment; c when acting in the course of their employment, treat everyone with respect and courtesy, and without harassment; c when acting in the course of their employment, comply with all applicable Australian laws; c comply with any lawful and reasonable direction given by someone employed by the ALRC who has authority to give the direction; c maintain appropriate confidentiality about dealings; c disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with their employment; c use ALRC resources in a proper manner; c not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's employment; c not make improper use of: (a) inside information; or (b) the employee's duties, status, power or authority, in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person;

c at all times behave in a way that upholds the integrity and good reputation of the ALRC; and c while on duty overseas, at all times behave in a way that upholds the good reputation of Australia.

An ALRC employee must not disclose information which he or she obtains or generates in connection with his or her employment if it is reasonably foreseeable that the 54

08-09 Annual Report.indd Sec1:54 14/09/2009 2:51:17 PM disclosure could be prejudicial to the effective working of the ALRC or the Australian Government, including the formulation or implementation of policies or programs.

An ALRC employee must not disclose information obtained or generated in connection with his or her employment if the information:

c was or is to be communicated in confidence; or c was received in confidence by the ALRC from a person or persons outside the agency.

It is an exception to this requirement where:

c the information is disclosed in the course of the ALRC employee’s duties; c the information is disclosed in accordance with an authorisation given by the ALRC President; c the disclosure is otherwise authorised by law; or c the information that is disclosed is already in the public domain as the result of a disclosure of information that is lawful.

Possible breaches of the Code of Conduct will be dealt with in accordance with clause 47 of the ALRC Union Collective Agreement 2007–2010, and under procedures established by the President which satisfy the principles of natural justice. Where misconduct is found, the President may take any combination of actions specified in the ALRC Union Collective Agreement 2007–2010, including reduction of salary, suspension or termination of employment.

Fraud Control and Risk Management

The ALRC has a commitment to fraud control and for promoting efficient, effective Corporate Governance

and ethical use of Commonwealth resources. The ALRC is satisfied that the ALRC’s l Fraud Control Plan 2008–2010—approved by the ALRC Board of Management in July 2008—complies with the Commonwealth Fraud Control Guidelines, and ensures that appropriate fraud prevention, detection, investigation and reporting procedures and processes are in place.

In accordance with s 8.14 of the Commonwealth Fraud Control Guidelines, the ALRC

collects any information relating to fraudulent matters and reports it to the Attorney- General’s Department. No fraudulent activity was detected in 2008–09. The ALRC’s Fraud Control Plan will be reviewed annually by the ALRC’s Audit Committee.

The ALRC’s risk assessment, conducted in 2008, indicated that the ALRC had adequate controls in place, with all relevant risks being classified as ‘low’ or ‘negligible’. The ALRC Fraud Control Plan recommended some minor improvements to the ALRC’s control measures in July 2008 and these have been acted on as follows: Annual Report 2008—09 Report Annual 55

08-09 Annual Report.indd Sec1:55 14/09/2009 2:51:17 PM c raising staff awareness of the Fraud Control Plan

Staff have received two email alerts regarding both the completion and endorsement of the Fraud Control Plan in August 2008 and a further notice in June 2009 reminding them to familiarise themselves with the requirements of the plan. All new ALRC employees are provided with the Fraud Control Plan as part of their induction.

c considering introduction of an internal audit program, appropriate to the size of the ALRC

The ALRC’s Audit Committee considered whether there needed to be an internal audit program, but given the small size of the ALRC the current controls were considered sufficient.

c adopting a more systematic approach to reviewing policies and procedures

The ALRC has developed a Policy Register that lists all ALRC policies, when they were created and updated and indicates when they are due for revision. This register is used to monitor policy development at the ALRC, to ascertain those policies that need updating and to put in place a schedule for this process. All ALRC policies will be reviewed by the Executive Director annually and, if necessary, updated at least every three years to ensure they:

continue to be relevant to the ALRC; are in line with the current workplace agreement and with government policy; meet community expectations; and take account of changing workplace practices and developments in technology. A recent review of this Register by the Executive Director, Ms Sabina Wynn, highlighted that the most urgent policy needing updating was the ALRC’s OH&S Policy originally approved in 1999. The new OH&S Policy and Health and Safety Management Arrangements were approved in December 2008 by the Commission. The policy review also highlighted the absence of a policy regarding working from home and a Work from Home Policy has also been developed and approved by the Commission.

c documenting recruitment procedures

An Employment Policy has been developed and approved by the Commission. The recruitment process for three new legal officers and a website manager has been documented fully.

c updating Cabcharge procedures to reflect the introduction of electronic vouchers

Cabcharge procedures have been updated to reflect the introduction of electronic vouchers approved by the Commission. 56

08-09 Annual Report.indd Sec1:56 14/09/2009 2:51:17 PM Risk Management

The ALRC has continued to assess and manage its risks through:

c appropriate levels of insurance, including cover for public liability, directors’ liability, and property loss or damage, with nature and levels of cover reviewed annually; c a positive approach to occupational health and safety, based on preventative strategies and early response to injury; c provision of training to staff to ensure that they understand their responsibilities and have the skills necessary to fulfil their responsibilities; c transparent reporting of financial management and operational matters, both internally and externally; and c administrative policies aimed at preventing fraud and managing risk.

Independent professional advice

Board of Management members have the right, with the agreement of the President, to obtain at the ALRC’s expense, independent professional advice relevant to the discharge of their responsibilities. No such advice was sought by individual members of the Board of Management during 2008–09.

Conflict of interest

Section 39 of the ALRC Act requires members to disclose any material personal interest in a matter under consideration by the Commission. There were no such disclosures in

2008–09. Corporate Governance

Full-time members of the ALRC and the Executive Director make annual declarations of l private interests, which are provided to the Attorney-General. Updated declarations of interest have been provided to the Attorney-General for 2008–09.

Director indemnity

The ALRC carries directors’ and officers’ liability insurance. Details are as follows:

Directors insured

Professor David Weisbrot—President

Professor Les McCrimmon—Commissioner

Professor Rosalind Croucher—Commissioner Annual Report 2008—09 Report Annual 57

08-09 Annual Report.indd Sec1:57 14/09/2009 2:51:17 PM Nature of liability

Damages arising as a consequence of a wrongful act of a director, including an error by omission or commission; a mistatement or misleading statement; or negligent breach of duty.

Insurance premium

$1,429.76 in 2008–09.

The ALRC has not indemnified or agreed to indemnify any current or former officer against a liability other than by coverage under the directors’ and officers’ liability insurance. Corporate Planning

As part of Operation Sunlight, the new outcome statement was confirmed for the ALRC as being:

Informed government decisions about the development, reform and harmonisation of Australian laws and related processes through research, analysis, reports and community consultation and education.

The ALRC’s Corporate Plan was revised and amended to reflect this new Outcome Statement.

The ALRC’s vision is for:

A fair, equitable and accessible system of federal justice that contributes to a just and secure society.

The ALRC has two strategic programs to achieve its Outcome—conducting inquiries into aspects of Australian law and related processes for the purpose of law reform; and community education about law reform.

The ALRC’s Corporate Plan 2009–2011 is publicly available on the ALRC website and is reproduced in Appendix A.

08-09 Annual Report.indd Sec1:58 14/09/2009 2:51:17 PM External Scrutiny and Controls

Parliamentary scrutiny

Representatives of the ALRC regularly appear at Senate Estimates Committee hearings to answer questions about the ALRC’s operations.

The ALRC President, Professor Weisbrot, was required to attend Senate Estimates Committee hearings in Canberra on 20 October 2008, 23 February 2009 and 25 May 2009.

Professor Les McCrimmon appeared at the Senate Legal and Constitutional Affairs Committee’s Hearing on 7 August 2008 to present evidence in relation to the Evidence Amendment Bill 2008.

The President, Professor David Weisbrot and Executive Director, Ms Sabina Wynn, appeared at the Public Hearings for the Inquiry into the effect of the efficiency dividend on small agencies by the Joint Committee of Public Accounts and Audit on 8 September 2008.

Court and tribunal decisions

There were no judicial decisions or decisions of administrative tribunals during 2008–09 that involved the ALRC or had a significant impact on the operations of the ALRC.

Commonwealth Ombudsman

No issues relating to the ALRC were referred to the Commonwealth Ombudsman’s Corporate Governance

office. l Human Resource Management

Staffing

Employees of the ALRC are appointed under s 43 of the ALRC Act. At the close of the reporting period, on 30 June 2009, the ALRC’s full-time equivalent staffing level was 17.71. This figure does not include Commissioners.

Since 1996, all staff appointed under s 43 have been appointed on a fixed term basis, in accordance with the ALRC Union Collective Agreement 2007–10. Annual Report 2008—09 Report Annual 59

08-09 Annual Report.indd Sec1:59 14/09/2009 2:51:17 PM Corporate Staff: (Back) Sabina Wynn (Executive Director), Michelle Hauschild (Special Projects Coordinator), Carolyn Kearney (Librarian), Greg Diggs (Payroll Officer), Esther Naulumatua (Administrative Assistant) and Jonathan Dobinson (Research Manager). (Front) Dimitra Zinonos (Finance Assistant), Trisha Manning (Office Services Coordinator), Maria Zacharia (Finance Manager) and Vicki Jackson (Communications Manager).

Table 11: Staffing profile, as at 30 June 2009 ALRC Classification Men Women Full-time Part-time Total Executive Director 11 1 (SES-equivalent)

ALRC 6 22314 ($83,029–105,179)

ALRC 5 3123 ($83,029–93,451)

ALRC 4 6516 ($46,448–76,772)

ALRC 3 11 1 ($60,605–76,772)

ALRC 2 15246 ($46,448–58,840)

ALRC 1 111 ($33,556–47,842)

Total 3 19 13 9 22 60

08-09 Annual Report.indd Sec1:60 14/09/2009 2:51:17 PM Table 12: ALRC Staff 2008–09 Corporate Support

Sabina Wynn Executive Director Full-time Maria Zacharia Finance Manager Full-time Dimitra Zinonos Finance Assistant Part-time Greg Diggs Payroll Officer Part-time Trisha Manning Office Services Coordinator Full-time Esther Naulumatua Administrative Assistant Part-time

Communications

Vicki Jackson Communications Manager Part-time Michelle Hauschild Special Projects Coordinator Part-time Becky Bowyer Communications Officer Part-time

Research and Records

Jonathan Dobinson Research Manager Full-time Carolyn Kearney Librarian Full-time

Reference Team: Secrecy

Carolyn Adams Senior Legal Officer Full-time Bruce Alston Senior Legal Officer Part-time Althea Gibson Legal Officer Part-time Lisa Eckstein Legal Officer Full-time Anna Dziedzic Legal Officer Full-time Corporate Governance Tina O’Brien Executive/Project Assistant Full-time l

Reference Team: Royal Commissions

Kate Connors (resigned 15 May 2009) Senior Legal Officer Full-time Isabella Cosenza Senior Legal Officer Full-time Erin Mackay Legal Officer Full-time Joyce Chia Legal Officer Full-time

Catherine Kelso Legal Officer Full-time Alayne Harland Executive/Project Assistant Part-time Annual Report 2008—09 Report Annual 61

08-09 Annual Report.indd Sec1:61 14/09/2009 2:51:17 PM Employment conditions

All ALRC staff members, other than the Executive Director, are covered by the ALRC Union Collective Agreement 2007–2010. This agreement provides for annual salary increases of 4.2%, as well as a range of measures intended to facilitate retention of older employees and employees with family and/or carer responsibilities. These include:

c an extension of paid maternity leave from 12 to 14 weeks; c an extension of paid parental leave from one to two weeks; c eligibility for parental leave in relation to long-term foster care placements; c introduction of paid adoption leave; and c provision for older workers to sacrifice up to 100% of salary into superannuation.

In line with Australian Government policy, these and other enhancements in conditions are offset by a range of measures to increase productivity, including :

c production of a wider range of consultation documents for ALRC inquiries, using the skills of existing legal, communications and administrative staff; c a higher degree of collaboration with other law reform bodies, with a view to sharing workload on inquiries with related subject matter; c increased use of the website to support consultation processes; c involvement of in-house staff in a broader range of consultation activities to reduce the need for external consultants; c use of telephone conferencing in place of interstate travel, where appropriate; c a longer duration for the Agreement—3.5 years—to reduce the regularity of the renegotiation process which can have a significant impact on productivity in a small agency like the ALRC; c changes to the performance appraisal system, to place a greater emphasis on one-off bonuses rather than increases in base salary; c removal of entitlements to automatic re-appointment, which existed in specified circumstances in the previous agreement.

Performance rewards and bonuses

The ALRC Union Collective Agreement 2007–2010 includes a salary scale, with each pay point in the scale representing a 3% increase in salary. The performance appraisal provisions of the Agreement allow for good performance to be rewarded through a mixture of movement up the salary scale and one-off bonuses, as summarised below.

08-09 Annual Report.indd Sec1:62 14/09/2009 2:51:17 PM Performance Rating Outcome Exceptional performance 2 pay point increase

Performance between strong 1 pay point increase plus and exceptional bonus of up to 2% of salary

Strong performance 1 pay point increase

Performance between adequate Bonus of up to 2% of salary and strong Adequate performance No salary advancement

When an employee reaches the maximum pay point for his or her position, the President has the discretion of granting a bonus of up to 3% of annual salary based on a performance appraisal. During 2008–09, ten employees were awarded a performance bonus, amounting to a total bonus payment for the year of $16,384.

Details of total remuneration expenditure in 2008–09 are provided in the financial statements.

The ALRC Union Collective Agreement is due to be renegotiated by 1 July 2010.

Staff development

The performance appraisal process is the main mechanism for determining professional development needs of employees but the ALRC also considers requests for education and training as they arise. The ALRC budgets for professional development within each

work unit and at a whole-of-organisation level. Where appropriate, the ALRC organises Corporate Governance tailored training for groups of employees with similar needs. l

In 2008–09, the ALRC provided all staff training in relation to occupational health and safety, cross cultural communication and legal staff with training in writing styles for good legal writing. In addition the ALRC supported professional development of a number of staff to attend training in grammar and writing skills, management for new managers, TRIM administration and file management, new payroll and office tax procedures and salary packaging with regards to the National Employment Standards.

Study assistance in the form of discretionary leave or reduction of work hours is available to staff undertaking tertiary studies at undergraduate and postgraduate levels. Two employees sought and obtained approval for paid study leave in 2008–09. Annual Report 2008—09 Report Annual 63

08-09 Annual Report.indd Sec1:63 14/09/2009 2:51:17 PM Equal employment opportunity (EEO)

The ALRC is committed to equal opportunity in employment (EEO). EEO principles are applied in recruitment practices, and by providing equality of opportunity for training and development for all employees.

The ALRC has an EEO Policy and Reasonable Adjustment Guidelines. The EEO Policy is a statement of the ALRC’s commitment to the goals of equal opportunity and affirmative action in employment, and aims to provide a work environment for staff, contractors and interns that fosters fairness, equity and respect for social and cultural diversity, and that is free from unlawful discrimination, harassment or vilification. The EEO Policy also sets out procedures to ensure concerns and complaints are dealt with in a prompt and appropriate manner.

The Reasonable Adjustment Guidelines are designed to assist in fulfilling the ALRC’s legal and organisational responsibilities for providing a workplace that allows employees, contractors and interns with a disability to compete for vacancies and pursue careers as effectively as people who do not have a disability. The Guidelines require management to consider whether it is necessary and reasonable to make an adjustment to remove a barrier to enable a person with a disability to achieve equal opportunity, equal participation or equal performance at work.

The ALRC invites all new staff to participate in a voluntary EEO survey that allows the organisation to track the number of staff who are from groups or communities that are specifically identified in the EEO Policy. All information collected through the survey is treated as confidential and is used only for reporting in a de-identified manner.

As at 30 June 2009, 19 of the ALRC’s 22 staff were female. There were five new appointments made during 2008–09 and five of these new appointments fell within categories recognised in the EEO policy (Aboriginal and Torres Strait Islander people, people with a disability, people from a non-English speaking background, and women). A breakdown of staff by gender and classification is provided in Table 11.

Work/Life Balance

The ALRC is strongly committed to providing a work environment that recognises the need for a work/life balance and that enables its staff to be employed, as far as possible, in a way that is consistent with family and other personal responsibilities.

The ALRC Union Collective Agreement 2007–2010 contains a number of conditions that are intended to ensure work/life balance practices. These include:

c formal flextime arrangements for most categories of employees and a discretionary time-in-lieu system for senior staff;

08-09 Annual Report.indd Sec1:64 14/09/2009 2:51:18 PM c the ability to ‘purchase’ additional annual leave; c flexibility in the use of personal leave to care for family members; c generous maternity, adoption and parental leave provisions; and c provision to work from home in particular circumstances.

In 2008–09, six members of staff were permitted to work part-time in order to meet family or personal commitments and/or to facilitate their return to work from maternity leave.

The ALRC has developed a Working From Home Policy that sets out the management arrangements for staff working from home and also ensures that good OH&S practices are in place.

Occupational Health & Safety (OH&S)

The ALRC recognises its responsibility to provide a healthy and safe workplace for employees and to provide employees with workplace-based, easily accessible information on health and safety matters.

In 2008–09 the ALRC developed its new Health and Safety Management Arrangements (HSMAs) and updated its Occupational Health and Safety Policy in consultation with the ALRC Occupational Health and Safety Consultative Committee (OH&SCC) and the ALRC staff. The ALRC is committed to providing and maintaining the highest degree of health, safety and welfare of all employees by aiming to prevent all injury and illness potentially caused by working conditions.

Occupational health and safety is overseen by the OH&SCC, comprised of the Executive Director Ms Sabina Wynn, Senior Legal Officer Ms Kate Connors (staff Corporate Governance union representative until May 2009), Senior Legal Officer Carolyn Adams (staff union

representative from June 2009), Office Services Coordinator Ms Trisha Manning (safety l officer), Payroll Officer Mr Greg Diggs and Executive/Project Assistant Mrs Alayne Harland.

During 2008–09 the ALRC’s OH&SCC met three times; on 21 August 2008; 5 November 2008; and 30 April 2009. As a result of these meetings, the ALRC conducted an office safety audit to identify any potential hazards and to recommend strategies to minimise these hazards. In addition, an all-staff OH&S survey was conducted that raised some minor concerns about after hours office security. As a result, a protocol for accessing the office after hours and on weekends was issued, and staff were notified of the contact details of after hours building security.

All staff participated in OH&S training and workstation assessments. As a result of these assessments a number of recommendations were made for each staff member, including purchasing new ergo-dynamic chairs, document holders, foot rests, and Annual Report 2008—09 Report Annual 65

08-09 Annual Report.indd Sec1:65 14/09/2009 2:51:18 PM hands-free telephone headsets for some staff. The ALRC makes every effort to ensure that staff have the equipment that they require to fulfil the requirements of their job without risk to their health.

New staff are provided with information on occupational health and safety as part of the induction process. As a workplace health initiative under the Certified Agreement, the ALRC provides free and voluntary influenza vaccinations to staff in autumn each year. In 2008–09, 14 staff took advantage of a free vaccination.

The OH&SCC was required to formulate an influenza pandemic plan to respond to the H1N1 Pandemic. This pandemic plan sets out the processes and procedures for managing any notifications of H1N1 amongst ALRC staff and for ensuring business continuity in the event of significant business disruption due to the pandemic. The ALRC has not reported any cases of H1N1 virus during 2008-09 and there was no disruption to business operations during the reporting period.

Michael Kirby Library

The ALRC’s Michael Kirby Library contributes to the ALRC’s objective—informed government decisions about the development, reform and harmonisation of Australian laws and related processes—through the provision of information, materials and reference services.

During 2008–09, the library continued to support the work of the staff of the ALRC through organisation and delivery of journal subscriptions, monograph purchases, online databases, inter-library loans and reference services. This includes continuous evaluation of new and existing subscriptions and services in order to meet the changing needs of ALRC staff working on new and continuing inquiries. In 2008–09, the library

Librarian, Ms Carolyn Kearney in the Michael Kirby Library 66

08-09 Annual Report.indd Sec1:66 14/09/2009 2:51:18 PM increased its online subscriptions—especially in the packaged online journals area—a move which increases productivity and allows for cancellation of individual print subscriptions, achieving greater economic efficiencies.

The collection of the Michael Kirby Library is housed at the ALRC and consists of approximately 300 journals and 4,000 monographs, plus subscriptions to online services, journal indexes and reference materials.

The Library also has a presence within the various networks of law libraries in Australia and New Zealand. These networks are invaluable for sharing expensive resources and providing a voice for libraries in the wider community.

The Library is supported by library management software that has been adapted for the ALRC’s needs. This software tracks expenditure and provides a user-friendly interface for Commissioners, staff and interns seeking access to resources.

The Library is the ALRC’s gateway for locating updated news and legal materials worldwide that are relevant to the ALRC’s current research. The Librarian is responsible for locating online current awareness services and disseminating relevant electronic information to staff; and for creating and maintaining the ALRC intranet, which is a key research tool for legal staff. As well as links to general legal resources and the library catalogue, in 2008–09 the intranet resources for the Secrecy Inquiry and Royal Commissions Inquiry were updated.

Purchasing

Purchasing within the ALRC is guided by the Purchasing Policy and Procedures, which are consistent with the Commonwealth Procurement Guidelines (January 2005). As an

agency expending public money, the ALRC must be accountable for its resources and Corporate Governance expenditure. The Government requires the ALRC to promote the proper use of resources within the framework of policies that the Government has set for itself and its agencies. l These policies aim to achieve efficient, effective and ethical procurement outcomes with a focus on value for money and provide guidelines as to how these outcomes may be realised when undertaking procurement.

The ALRC’s Procurement and Purchasing Policy was updated in May 2009 and sets ‘value for money’ as the core principle in procurement decisions. ‘Value for money’

is determined with reference to efficiency, effectiveness, accountability, transparency, ethics, Australian Government policies and environmental considerations. In a procurement process this principle requires a comparative analysis of all relevant costs and benefits of each proposal throughout the whole procurement cycle (whole-of-life costing) making decisions in an accountable and transparent manner.

The ALRC’s Procurement and Purchasing Policy recognises that ‘value for money’

also involves adopting processes that reflect the scale and risk profile of a particular 2008—09 Report Annual 67

08-09 Annual Report.indd Sec1:67 14/09/2009 2:51:18 PM procurement and that simple procurements should be undertaken using simple processes.

Risk management is built into the ALRC’s procurement processes and the extent of risk management required will vary from following routine procurement processes, to a significant undertaking involving the highest level of planning, analysis and documentation.

Where the Government establishes a coordinated procurement contract for a particular property or service, the ALRC will use the government contract established for that property or service, unless an exemption has been provided.

The ALRC has an Environmental Management Policy that commits the ALRC to consider the environmental impact of any purchases and to seek to minimise the ecological footprint of the ALRC’s activities. Reference to this policy is made whenever the ALRC seeks to purchase major office equipment, office supplies, printing and publishing services, and other consumables and services that might impact on the environment in a negative way.

The ALRC publishes an Annual Procurement Plan on the Austender website. The ALRC did not instigate any ‘covered procurements’, within the meaning of the Commonwealth Procurement Guidelines, during 2008–09. Consequently, the mandatory procurement procedures did not apply to any procurements.

Consultancies

The ALRC did not employ any consultants during 2008-09. Some services that cannot be provided within the ALRC’s existing staff resources— including web-hosting and IT services—are accounted for in the expenditure budget of the ALRC. However, these service providers do not constitute ‘consultancies’ as the services they provide do not involve the development of an intellectual output that assists with agency decision- making, nor do they produce an output that reflects the independent views of the service provider.

Advertising and Market Research

As required under Section 311A of the Commonwealth Electoral Act 1918, the ALRC reports that, during 2008-09, it did not undertake any advertising or market research with advertising agencies, market research organisations, polling organisations, direct mail organisations, and media advertising organisations.

08-09 Annual Report.indd Sec1:68 14/09/2009 2:51:18 PM Summary of Financial Performance

Financial Outcomes

Operating Outcome

The 2008-09 financial statements show an operating surplus of $0.057m. Factors that contributed to the operating surplus in this financial year are a requirement in the Finance Ministers Orders 2008–09 to calculate provisions for long service leave according to a lower than anticipated bond rate, and lower than anticipated costs for publications due to no final reports being required in the reporting period.

Operating Revenue

The ALRC’s operating revenue of $3.490m comprised revenue from government of $3.360m, revenue from sale of goods (publications) of $0.030m, interest of $0.085m and other revenue $0.015m.

Operating Expenses

Total operating expenses of $3.433 were $0.310m less than in 2007–08.

Total payments to employees decreased from $2.501m to $2.330m primarily due to an decrease in the expenditure on leave and other entitlements.

The ALRC’s depreciation and amortisation expense declined by $0.024m.

Equity

The ALRC’s total equity increased by $0.063m primarily due to the operating surplus. Corporate Governance Total assets l The ALRC’s total assets decreased by $0.023m.

Total liabilities

The ALRC’s total liabilities decreased by $0.085m.

Cash flow statement

Overall, there was an increase in the ALRC’s cash balance by $0.050m. Annual Report 2008—09 Report Annual 69

08-09 Annual Report.indd Sec1:69 14/09/2009 2:51:18 PM Other Reporting Requirements

Ecologically sustainable development (ESD)

As required under s 516A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the ALRC is required to report the environmental performance of the organisation and the organisation’s contribution to Ecologically Sustainable Development (ESD).

The ALRC has considered whether any of its activities have significant ESD implications in accordance with the ESD Reporting Guidelines (June 2003) and has determined that in 2008–09, none of the ALRC’s activities or appropriations were relevant to ESD.

Environmental Management System (EMS)

The ALRC reviewed its Environmental Management System during 2008–09 to ensure its continued relevance and effectiveness. The ALRC is committed to environmental best practice in office management and general operations. Through a process of continual improvement the ALRC will develop and maintain efficient and effective environmental office practices and will comply with relevant government policy and environmental legislation.

The ALRC’s EMS commits the organisation to minimise its ecological footprint by:

c incorporating environmental management considerations into core business and management practices including the organisation of the ALRC’s two core programs, conducting inquiries and delivering education programs; c considering environmental impacts of all purchases made and ensuring that, wherever possible, options chosen include recyclable products, minimum packaging and minimum toxic chemicals; c creating a culture where sustainable environmental management is considered an integral element of all ALRC activities and providing information to staff as to the recycling system and to maximising energy efficiency; c setting measurable environmental targets as part of a continual improvement process; c regularly monitoring environmental performance and providing reports to the ALRC Board of Management and to Government, as required; and c reviewing this Policy at least every two years to ensure it is relevant and delivering desired outcomes.

In minimising our environmental impact, the ALRC will consider the following:

c options for travel during the consultation process, using telephone conferencing when appropriate instead of air travel, purchasing carbon offsets when travelling 70

08-09 Annual Report.indd Sec1:70 14/09/2009 2:51:18 PM by air, using public transport when appropriate, and sharing vehicles as far as possible; c developing a protocol for filing electronically, rather than in hard copy, to reduce the amount of paper used throughout the office; c printing double-sided for internal documents whenever possible; c using paper that is recycled and/or has an environmental sustainability rating in all ALRC publications, and including the cost of this practice in our budgets; c encouraging the use of online business (e-payments) to reduce reliance on paper products; c developing an option for submitting to ALRC inquiries online that will reduce paper usage and photocopying; c investigating the publication of Reform journal online in place of producing a hard copy publication; c purchasing ‘fair trade’ consumables, if available; c ensuring all office lights are switched off by the last person to leave the office; c ensure printers, fax machines and computers are turned off overnight and on weekends and holidays rather than being left on stand-by; c encouraging all staff to use the building recycling system for green waste and for mixed recyclables; c asking ALRC Commissioners and staff who are eligible for a vehicle as part of their remuneration to treat fuel efficiency and carbon emissions as significant factors when choosing a vehicle; c ensuring that the air conditioning in the boardroom is not switched on unless it is needed and is not left running after meetings;

c encouraging staff to use window blinds to regulate the temperature of their Corporate Governance offices to reduce the use of the air conditioning system, particularly during l summer months; and c considering the amount of packaging when purchasing goods for the office.

The ALRC’s Executive Officer is the EMS officer, whose role is to ensure ongoing monitoring and continuous improvement of environmental performance. The EMS officer is responsible for developing and implementing the EMS, including the review of the

established objectives and targets.

The ALRC monitors energy use and takes steps to reduce consumption where possible. In 2008–09 electricity consumption increased by 0.39%.

Freedom of information statement

The ALRC follows a policy of openness with the information it holds (set out in the ALRC Access to Reference Material Policy), subject to necessary qualifications where, for 2008—09 Report Annual example, material is supplied in confidence or its disclosure might breach the privileges 71

08-09 Annual Report.indd Sec1:71 14/09/2009 2:51:18 PM of Parliament. A large number of requests for information are satisfied by material provided on the ALRC’s website.

In 2008–09, the ALRC received one formal application for information under the Freedom of Information Act 1982 (Cth) (the FOI Act). The application related to research and community consultation reports, and drafts of an issues paper, for the suspended ALRC Freedom of Information Inquiry, and any correspondence with the federal Government regarding the decision to suspend the Inquiry. The ALRC did not create any research, community consultation reports, or drafts of an issues paper for the Freedom of Information Inquiry. As these documents do not exist, the ALRC technically refused access to these documents under s 24A(b)(ii) of the FOI Act. In response to the request for any correspondence with the federal Government regarding the decision to suspend the Inquiry, the ALRC supplied a copy of a letter from the Attorney-General to the President of the ALRC.

Section 8 of the FOI Act requires the ALRC to publish certain information in its Annual Report. Information about the ALRC’s organisation, functions, decision-making powers and about public participation in the work of the ALRC is contained in this Annual Report. The other information required by the FOI Act is set out below.

The FOI Act requires the publication of a statement of the categories of documents held by the ALRC. The ALRC holds the following categories of documents:

c correspondence and working papers, including formal submissions, notes of meetings and transcripts of public hearings relating to the ALRC’s references and relating to the reform of the law in general; c databases used by staff for the purposes of communicating with persons and organisations connected with the ALRC and the conduct of its references or general operations; and c correspondence and working papers relating to the administration of the ALRC, including personnel and financial papers.

The following categories of documents are available for purchase by the public from the ALRC:

c ALRC Reports, including Annual Reports (also freely available for download from the ALRC website); c community education and consultation documents relating to past references, including Background Papers, Issues Papers, and Discussion Papers (also freely available for download from the ALRC website); and c issues of Reform, the ALRC’s bi-annual journal (some articles are available for free download from the ALRC website).

The following categories of documents are available upon request (without the need for a formal application under the FOI Act): 72

08-09 Annual Report.indd Sec1:72 14/09/2009 2:51:18 PM c community education and consultation documents relating to current references, including any relevant Background Papers, Issues Papers, Discussion Papers and final Reports; and c submissions to ALRC inquiries that have not been marked confidential by the submitter (although these are not available until the relevant Report has been completed and tabled in Parliament).

Commonwealth Disability Strategy

The ALRC has a broad commitment to the inclusion of, and participation by, people with disabilities. Reporting on compliance with the Commonwealth Disability Strategy continues to provide the ALRC with the impetus to improve its policy, procedures and approach to working and communicating with people with a disability.

Table 13: Commonwealth Disability Strategy Goal Achievement Revised Goal for 2009–10 Continue to provide advice Goal achieved. No change to on availability of alternative The ALRC makes all new publications goal. formats, as publications available in HTML, RTF and PDF are released. formats. Consultation papers printed in the reporting period contained advice about the availability of alternative formats. This information is also published on the ALRC’s website.

Implement This is an ongoing goal. No change to Corporate Governance

Communications The ALRC’s Communications with goal. l with People with a People with a Disability Procedures Disability Procedures as provide guidance for ALRC staff on consultations are arranged how to consider the needs of people in association with ALRC with a disability when organising inquiries. consultation meetings. The procedures discuss facilities

to assist people with hearing impairments and people with a disability who speak a language other than English. Relevant staff take these procedures into account when organising consultations. Annual Report 2008—09 Report Annual 73

08-09 Annual Report.indd Sec1:73 14/09/2009 2:51:18 PM Table 13: Commonwealth Disability Strategy Goal Achievement Revised Goal for 2009–10 Identify issues of relevance This is an ongoing goal. No change to to people with a disability goal. for each reference, and consult with appropriate disability groups on those issues.

Provide HTML versions of This is an ongoing project. No change to all past reports, currently During 2008–09 the ALRC completed goal. available only in PDF and HTML versions of three past reports. ASCII.

Monitor ALRC website to This is an ongoing goal. No change to ensure it remains compliant ALRC staff monitor current goal. with relevant standards for developments in relation to access by people with a accessibility by people with a disability. disability.

Consider the principles of This is an ongoing goal. No change to the Disability Discrimination The ALRC considers that its policies, goal. Act 1992 (Cth) and procedures and practices are incorporate them into any consistent with the principles of the new or revised employment Act. and staff development policies, practices and procedures.

Ensure all key ALRC All recent ALRC reports and No change to documents are available in consultation papers—including Annual goal. HTML or RTF format on the Reports—are available on the ALRC ALRC website. website in HTML format. Key documents such as the Corporate Plan 2009–11, the Organisational Chart, relevant ALRC policies, information on the internship program and information on the general work program of the ALRC, are available on the website in accessible formats.

08-09 Annual Report.indd Sec1:74 14/09/2009 2:51:18 PM 08-09 AnnualReport.indd Sec1:75 FinancialStatements McCrimmon (Commissioner), and Ms Sabina Wynn (ExecutiveDirector). McCrimmon (Commissioner),andMsSabinaWynn The ALRCAuditCommittee:MsMariaZacharia(FinanceManager),ProfessorLes 14/09/2009 2:51:18PM 75 Annual Report 2008—09 Financial Statements 76

08-09 Annual Report.indd Sec1:76 14/09/2009 2:51:19 PM 08-09 AnnualReport.indd Sec1:77 14/09/2009 2:51:19PM 77 Annual Report 2008—09 Financial Statements 78

08-09 Annual Report.indd Sec1:78 14/09/2009 2:51:20 PM 08-09 AnnualReport.indd Sec1:79 GAINS Total revenue Revenue INCOME Total For theyearended30June2009 INCOME STATEMENT SURPLUS (DEFICIT) OA NOE3,490,177 EXPENSES TOTAL INCOME TOTAL EXPENSE Other revenue Interest Sale ofgoodsandrenderingservices Sale ofassets Revenue fromGovernment Write-down andimpairementofassets Finance costs Depreciation andamortisation Suppliers Employee benefits g ains The abovestatementshouldbereadinconjunctionwiththeaccompanyingnotes S AUSTRALIAN LAWREFORMCOMMISSIO Notes 3D 3A 4D 4A 3C 3B 4B 4C 3E 4E N 3,488,813 3,360,000 3,432,712 1,023,404 2,329,838 13,445 85,131 30,237 57,465 32,646 41,982 1,364 1,364 4,842 2009 $ 3,532,229 3,382,000 3,742,757 3,532,229 1,171,257 2,500,938 (210,528) 130,679 19,166 65,720 4,842 2008 384 $ - - - 14/09/2009 2:51:20PM 79 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION

BALANCE SHEET as at 30 June 2009 Notes 2009 2008 $$ ASSETS Financial Assets Cash and cash equivalents 5A,14A,14D 1,638,943 1,589,114 Trade and other receivables 5B,14A,14D 16,982 36,958 Total financial assets 1,655,925 1,626,072

Non-Financial Assets Land and buildings 6A 20,485 26,787 Infrastructure, plant & equipment 6B 205,359 240,027 Other non-financial assets 6D 73,519 84,848 Total non-financial assets 299,363 351,662

TOTAL ASSETS 1,955,288 1,977,734 LIABILITIES Payables Suppliers 7A 54,543 114,997 Other payables 7B 169 378 Total payables 54,712 115,375

Provisions Employee provisions 8A 639,377 668,639 Other provisions 8B 95,712 90,870 Total provisions 735,089 759,509

TOTAL LIABILITIES 789,801 874,884 NET ASSETS 1,165,487 1,102,850

EQUITY Reserves 61,464 61,464 Retained surplus 1,104,023 1,041,386

TOTAL EQUITY 1,165,487 1,102,850

Current assets 1,729,444 1,710,920 Non-current assets 225,844 266,814 Current liabilities 667,765 760,251 Non-current liabilities 122,036 114,633

The above statement should be read in conjunction with the accompanying notes 80

08-09 Annual Report.indd Sec1:80 14/09/2009 2:51:20 PM 08-09 AnnualReport.indd Sec1:81 f CASH FLOWSTATEMENT Cash received OPERATING ACTIVITIES Cash Used Total cashreceived Total cashused Cash andcashequivalentsattheendofreportingperiod Cash atthebeginningofreportingperiod Net cashfromoperatingactivities Net increase/(decrease)incashheld Net cash(usedby)investingactivities Total cashused Cash used or theyearended30June2009 Net GSTreceived Other Interest Goods andservices Receipts fromGovernment Employees Suppliers Purchase ofproperty,plantandequipment The abovestatementshouldbereadinconjunctionwiththeaccompanyingnotes AUSTRALIAN LAWREFORMCOMMISSIO Notes 5A N 9 (2,359,099) (1,060,687) (3,419,786) 3,503,265 3,360,000 1,638,943 1,589,114 (33,650) (33,650) (33,650) 13,088 14,809 85,131 30,237 83,479 49,829 2009 $ (2,359,172) (1,157,019) (3,516,191) 3,553,627 3,382,000 1,589,114 1,672,552 (120,874) (120,874) (120,874) (83,438) 130,679 21,398 19,166 37,436 2008 384 $ 14/09/2009 2:51:21PM 81 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION

STATEMENT OF CHANGES IN EQUITY for the year ended 30 June 2009

Asset Revaluation Retained Earnings Reserve Total Equity 2009 2008 2009 2008 2009 2008 $ $ $ $ $ $ Opening balance Balance carried forward from previous period 1,041,386 1,249,081 61,464 61,464 1,102,850 1,310,545 Adjustment for error 5,172 2,833 - - 5,172 2,883 Adjustment for changes in Accounting policies ------Adjusted opening balance 1,046,558 1,251,914 - - 1,108,022 1,313,378

Income and expense recognised directly in equity (each item) ------Income and expense recognised directly in equity (each item) ------Subtotal income and expenses recognised directly in equity ------Surplus (Deficit) for the period 57,465 (210,528) - - 57,465 (210,528) Total income and expenses 57,465 (210,528) - - 57,465 (210,528)

Closing balance as at 30 June 1,104,023 1,041,386 61,464 61,464 1,165,487 1,102,850

The above statement should be read in conjunction with the accompanying notes 82

08-09 Annual Report.indd Sec1:82 14/09/2009 2:51:21 PM 08-09 AnnualReport.indd Sec1:83 Nature oflease/ NB: Net Commitmentsbymaturity Commitments receivable Total Operatin 1. Operatingleasesincludedareeffectivelynon-cancellableandcomprise: Net commitmentsb Total othercommitments Operatin Operating leases Other commitments Total commitmentsreceivable GST recoverableoncommitments Commitments receivable as at30June2009 SCHEDULE OFCOMMITMENTS L B There arenoknowncontingenciesasat30June2009. As at30June2009 SCHEDULE OFCONTINGENCIES are subjecttoanannualincreaseofapproximately4%. a 10yearleaseagreement(throughuntil30September2012).Leasepayments movements intheConsumerPriceIndex.TheCommissionhasenteredinto Lease paymentsaresubjecttoannualincreasesinaccordancewithupwards B eases y y Maturit T Over fiveyears From onetofiveyears One yearorless Commitments areGSTinclusivewhererelevant. y p f e or o g leasecommitments y ff ice accommodation. AUSTRALIAN LAWREFORMCOMMISSIO g Leasecommitments 1 g eneral descriptionofleasin The aboveschedulesshouldbereadinconjunctionwiththeaccompanyingnotes y t y pe g arran 2,097,740 2,307,514 1,629,185 2,307,514 2,307,514 2,097,740 (209,774) 678,329 209,774 209,774 2009 g ement $ - N 2,525,288 2,777,817 2,166,144 2,777,818 2,777,818 2,525,289 (252,529) 611,673 252,529 252,529 2008 $ - 14/09/2009 2:51:21PM 83 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

Note Description

1 Summary of Significant Accounting Policies 2 Events after the Balance Sheet Date 3 Income 4 Expenses 5 Financial Assets 6 Non-Financial Assets 7 Payables 8 Provisions 9 Cash Flow Reconciliation 10 Members' Remuneration 11 Related Party Disclosures 12 Executive Remuneration 13 Remuneration of Auditors 14 Financial Instruments 15 Reporting of Outcomes

08-09 Annual Report.indd Sec1:84 14/09/2009 2:51:21 PM 08-09 AnnualReport.indd Sec1:85 The FinancialStatementsandnoteshavebeenpreparedinaccordancewith: 1.1 Note 1: have nomaterialimpactonfuturereportingperiods. the AustralianAccountingStandardsBoard.Itisassessedthatadoptingthese pronouncements,wheneffective,will New standards,amendmentstoandinterpretationsthatareapplicable tofutureperiodshavebeenissuedby Adoption ofNewAustralianAccountingStandardRequirements 1.3 1.2 The financialreportispresentedinAustraliandollarsandvaluesareroundedtothenearestdollar. results orthefinancialposition. except forcertainassetsatfairvalue.Exceptwherestated,noallowanceismadetheeffectofchangingpriceson The financialreporthasbeenpreparedonanaccrualbasisandisinaccordancewiththehistoricalcostconvention, Government policyandoncontinuingappropriationsbyParliamentfortheCommission'sadministrationprograms. The continuedexistenceoftheCommissioninitspresentformandwithprogramsisdependenton Companies Act1997 The financialstatementsandnotesarerequiredbyclause1(b)ofSchedule1tothe Future AustralianAccountingStandardRequirements applicable tothecurrentperiodareassessedhaveamaterialfinancialaffect ontheCommission. standards, amendmentstostandardsandinterpretationsissuedbytheAustralian AccountingStandardsBoardthatare No accountingstandardhasbeenadoptedearlierthantheapplicationdate asstatedinthestandard.Nonewaccounting adjustment tocarryingamountsofassetsandliabilitieswithinthenextaccountingperiod. No accountingassumptionsorestimateshavebeenidentifiedthatasignificantriskofcausingmaterial be reliablymeasured. the IncomeStatementwhenandonlyfloworconsumptionlossofeconomicbenefitshasoccurredcan Unless alternativetreatmentisspecificallyrequiredbyanaccountingstandard,incomeandexpensesarerecognisedin under agreementsequallyproportionatelyunperformedarenotrecognisedunlessrequiredbyanAccountingStandard. Commission andtheamountsofassetsorliabilitiescanbereliablymeasured.However,arising recognised intheBalanceSheet,whenandonlywhen,itisprobablethatfutureeconomicbenefitswillflowto Unless alternativetreatmentisspecificallyrequiredbyanaccountingstandardortheFMOs,assetsandliabilitiesare . . New AccountingStandards Significant AccountingJudgementsandEstimates (AASB) thatapplyforthereportingperiod. Australian AccountingStandardsandInterpretationsissuedbytheBoard Statements forreportingperiodsendedonorafter01July2008)) Finance Minister'sOrders(orFMOs,beingthe Basis ofPreparationtheFinancialReport Summary ofSignificantAccountingPolicies and areageneralpurposefinancialreport. NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 Commonwealth AuthoritiesandCompaniesOrders(Financial ; and Commonwealth Authoritiesand 14/09/2009 2:51:21PM 85 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

1.4 Revenue

Revenue from sale of goods is recognised when:

. The risks and rewards of ownership have been transferred to the buyer; . The seller retains no managerial involvement nor effective control over the goods; . The revenue and transaction costs incurred can be reliably measured; and . It is probable that the economic benefits associated with the transaction will flow to the entity. Revenue from rendering of services is recognised by reference to the stage of completion of contracts at the reporting date. The revenue is recognised when: . The amount of revenue, stage of completion and transaction costs incurred can be reliably measured; and . The probable economic benefits with the transaction will flow to the entity. The stage of completion of contracts at the reporting date is determined by reference to the proportion that costs incurred to date bear to the estimated total costs of the transaction. Receivables for goods and services, which have 30 day terms, are recognised at the nominal amounts due less any impairement allowance account. Collectability of debts is reviewed at balance date. Allowances are made when collectability of the debt is no longer probable. Interest revenue is recognised on receipt using the effective interest method as set out in AASB 139 Financial Instruments: Recognition and Measurement .

Revenue from Government Funding received or receivable from agencies (appropriated to the agency as a CAC Act body item for payment to the Commission) is recognised as Revenue from Government unless it is in the nature of an equity injection.

1.5 Gains

Sale of Assets Gains from disposal of non-current assets is recognised when control of the asset has passed to the buyer.

1.6 Employee Benefits

Liabilities for services rendered by employees are recognised at the reporting date to the extent that they have not been settled. Liabilities for ‘short-term employee benefits’ (as defined in AASB 119) and termination benefits due within twelve months of balance date are measured at their nominal amounts.

The nominal amount is calculated with regard to the rates expected to be paid on settlement of the liability. All other employee benefit liabilities are measured at the present value of the estimated future cash outflows to be made in respect of services provided by employees up to the reporting date.

08-09 Annual Report.indd Sec1:86 14/09/2009 2:51:22 PM 08-09 AnnualReport.indd Sec1:87 been invoiced). settled. Liabilitiesarerecognisedtotheextentthatgoodsorserviceshave beenreceived(andirrespectiveofhaving Trade creditorsandaccrualsarerecognisedattheirnominalamounts,being theamountsatwhichliabilitieswillbe Financial liabilitiesarerecognisedandderecognisedupontradedate. FinancialLiabilities 1.9 Cash 1.8 from theleasedassets. Operating leasepaymentsareexpensedonastraight-linebasiswhichisrepresentativeofthepatternbenefitsderived Leases 1.7 are permittedtocontinuetheirmembershipofthoseschemes. Employees whowereappointedpriorto1July1997,andhavemaintainedtheirmembershipofthePSSorCSS, 1990 Since 1July1997,theCommissionhasnotbeenanapprovedauthorityforpurposesof promotion andinflation. the FMOs.Theestimateofpresentvalueliabilitytakesintoaccountattritionratesandpayincreasesthrough estimate ofthepresentvalueemployeeentitlementsisbasedonAustralianGovernmentshorthandmethodasper The liabilityforlongserviceleavehasbeendeterminedbyreferencetotheworkofanactuaryasat30June2009. the leaveislikelytobetakenduringserviceratherthanpaidoutontermination. the timeleaveistaken,includingCommission'semployersuperannuationcontributionratestoextentthat The leaveliabilitiesarecalculatedonthebasisofemployees’remunerationatestimatedsalaryratesthatapplied Commission isestimatedtobelessthantheannualentitlementforsickleave. made forsickleaveasallisnon-vestingandtheaveragetakeninfutureyearsbyemployeesof The liabilityforemployeebenefitsincludesprovisionannualleaveandlongserviceleave.Nohasbeen Leave value. Cashisrecognisedatitsnominalamount. 3 monthsorlessthatarereadilyconvertibletoknownamountsofcashandsubjectinsignificantriskchangesin Cash andcashequivalentsincludenotescoinsheldanydepositsinbankaccountswithanoriginalmaturityof fortnight oftheyear. The liabilityforsuperannuationrecognisedasat30June2009representsoutstandingcontributionsthefinal employee's annualsalary. superannuation contribution,theCommissionmakesamatchingcontributionuptomaximumof3% (Supervision) Act1993 employee attherateof9%salary,providedthatnominatedfundisregulatedby For employeesnotcoveredbytheabove,Commissioncontributestosuperannuationfundnominated as anadministereditem. by theAustralianGovernmentinduecourse.TheliabilityisreportedDepartmentofFinanceandDeregulation The liabilityfordefinedbenefitsisrecognisedinthefinancialstatementsofAustrtalianGovernmentandsettled Superannuation (Cth) andthereforeemployeesappointedonorafterthatdatearenoteligibleformembershipofthePSS. (Cth).Inaddition,inthecaseofanemployeewhoelectstomakeadditionalpersonal NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 Superannuation Industry Superannuation Act 14/09/2009 2:51:22PM 87 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION

NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS

FOR YEAR ENDED 30 JUNE 2009

Supplier and other payables Supplier and other payables are recognised at their nominal amounts. Liabilities are recognised to the extent that the goods and services have been received ( and irrespective of having been invoiced).

1.10 Financial Assets The Australian Law Reform Commission classifies its financial assets as loans and receivables. The classification depends on the nature and purpose of the financial assets and is determined at the time of initial recognition. Financial assets are recognised and derecognised upon trade date. Impairment of Financial Assets Financial assets are assessed for impairment at each balance date.

1.11 Acquisition of Assets Assets are recorded at cost on acquisition except as stated below. The cost of acquisition includes the fair value of assets transferred in exchange and liabilities undertaken. Financial assets are initially measured at their fair value plus transaction costs where appropriate.

1.12 Property (Land and Buildings), Infrastructure, Plant and Equipment

Asset Recognition Threshold

Purchases of property, plant and equipment are recognised initially at cost in the Balance Sheet, except for purchases costing less than $1,000, which are expensed in the year of acquisition (other than where they form part of a group of similar items which are significant in total). The $1,000 threshold was selected because it facilitates efficient asset management and recording without greatly affecting asset values recognised.

The initial cost of an asset includes an estimate of the cost of dismantling and removing the item and restoring the site on which it is located. This is particularly relevant to makegood provisions in property leases taken up by the Commission where there exists an obligation to restore the property to its original condition. These costs are included in the value of the Commission's leasehold improvements with a corresponding provision for the makegood recognised.

Land, buildings, infrastructure, plant and equipment are carried at fair value, being revalued with sufficient frequency such that the carrying amount of each asset is not materially different, at reporting date, from its fair value. Valuations undertaken in each year are as at 30 June.

Revaluations Fair values for each class of assets are determined as shown belowbelow..

Asset Class Fair value measured at:

Leasehold Depreciated replacement cost Improvements

Infrastructure, Plant & Market price

Equipment 88

08-09 Annual Report.indd Sec1:88 14/09/2009 2:51:22 PM 08-09 AnnualReport.indd Sec1:89 Revenues, expensesandassetsarerecognisedasnetGSTexcept: Tax The CommissionisexemptfromallformsoftaxationexceptFringeBenefits Tax(FBT)andtheGoodsServices if theCommissionweredeprivedofasset,itsvalueinuseistakentobedepreciatedreplacementcost. an assetisnotprimarilydependentontheasset'sabilitytogeneratefuturecashflows,andwouldbereplaced the presentvalueoffuturecashflowsexpectedtobederivedfromasset.Whereeconomicbenefit The recoverableamountofanassetisthehigheritsfairvaluelesscoststosellandinuse.Valueuse amount. amount isestimatedandanimpairmentadjustmentmadeiftheasset'srecoverablelessthanitscarrying All assetswereassessedforimpairmentat30June2009.Whereindicationsofexist,theasset'srecoverable applying toeachclassofdepreciableassetarebasedonthefollowingusefullives. adjustments arerecognisedinthecurrent,orcurrentandfuturereportingperiods,asappropriate.Depreciationrates Depreciation rates(usefullives),residualvaluesandmethodsarereviewedateachreportingdatenecessary balance date. lives totheCommissionusing,inallcases,straight-linemethodofdepreciation.Usefularereviewedateach Depreciable property,plantandequipmentarewrittenofftotheirestimatedresidualvaluesoveruseful the assetrestatedtorevaluedamount. Any accumulateddepreciationasattherevaluationdateiseliminatedagainstgrosscarryingamountofassetand increment forthatclass. recognised directlythroughtheIncomeStatementexcepttoextentthattheyreverseapreviousrevaluation that waspreviouslyrecognisedthroughtheIncomeStatement.Revaluationdecrementsforaclassofassetsare of assetrevaluationreserveexcepttotheextentthatitreversesapreviousdecrementsameclass Revaluation adjustmentsaremadeonaclassbasis.Anyrevaluationincrementiscreditedtoequityundertheheading independent valuationsdependsuponthevolatilityofmovementsinmarketvaluesforrelevantassets. carrying amountsofassetsdonotmateriallydifferfromassets'fairvaluesasatthereportingdate.Theregularity depreciation andaccumulatedimpairmentlosses.Valuationsareconductedwithsufficientfrequencytoensurethatthe Following initialrecognitionatcost,propertyplantandequipmentarecarriedfairvaluelesssubsequentaccumulated .3Taxation 1.13 Depreciation Leasehold improvements Impairment Plant andEquipment . . ( GST where theamountofGSTincurredisnotrecoverablefromAustralian TaxationOffice;and for receivablesandpayables. ) . NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 Lease term 3-10 years 2009 Lease term 3-10 years 2008 14/09/2009 2:51:22PM 89 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

Note 2: Events after the Balance Sheet Date

The Commission is not aware of any significant events that have occurred since balance date which warrant disclosure in these statements.

2009 2008 Note 3: Income $$

Revenue

Note 3A. Revenues from Government

Attorney General Department CAC Act body payment item 3,360,000 3,382,000 Total revenue from government 3,360,000 3,382,000

Note 3B. Sale of Goods and Rendering of Services

Provision of goods-external parties 30,237 19,166 Total sales of goods and rendering of services 30,237 19,166

Note 3C. Interest

Deposits 85,131 130,679 Total interest 85,131 130,679

Note 3D. Other Revenue

Academy Law Symposium 12,832 - Other revenue 613 384 Total other revenue 13,445 384

Gains Note 3E. Sale of Assets

Infrastructure, plant and equipment Proceeds from sale 1,364 - Carrying value of assets sold - - Net gain from sale of assets 1,364 -

08-09 Annual Report.indd Sec1:90 14/09/2009 2:51:22 PM 08-09 AnnualReport.indd Sec1:91 Total write-downandimpairmentofassets Depreciation: Operating leaserentals-externalparties Provision ofgoods-externalparties Superannuatio Wages andsalaries Impairmentofproperty,plantandequipment Asset write-downsandimpairmentsfrom: Unwinding ofdiscoun Note 4D.FinanceCosts Total depreciationandamortisation Total depreciation Note 4B.Suppliers Total employeeexpenses Leave andotherentitlements Note 4C.DepreciationandAmortisation Total supplierexpenses Workers compensationpremiums Note 4E.Write-DownandImpairmentofAssets Total financecosts Note 4A.Emplo Expenses Note 4: Buildings Infrastructure, plantandequipment Minimum leasepayment Defined benefitplans Defined contributionplans n y ee Benefits t NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS s AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 2,075,175 2,329,838 1,023,404 429,935 138,309116,047 582,072 32,646 32,646 41,98241,982 35,680 11,397 6,302 4,842 4,842 2009 307 $ 2,167,942 2,500,938 1,171,257 610,552 163,746 547,319 65,72065,720 59,418 86,142 83,108 13,386 6,302 4,842 4,842 2008 $ - - 14/09/2009 2:51:23PM 91 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION

NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS

FOR YEAR ENDED 30 JUNE 2009

2009 2008 $ $ Note 5: Financial Assets

Note 5A. Cash and cash equivalents

Cash on hand or on deposit 1,638,943 1,589,114 Total cash and cash equivalents 1,638,943 1,589,114

Note 5B.Trade and other receivables

Goods and services- related entities -- Goods and services- external entities 3,725 15,182 Total receivable for goods and services 3,725 15,182 GST receivable from the Australian Taxation Office 13,257 21,776

Total trade and other receivables (gross) 16,982 36,958

All receivables are current assets.

All receivables are with entities external to the entity. Credit terms are net 30 days (2008: 30 days).

Receivables are aged as follows: Not overdue 16,982 32,480 Overdue by: - less than 30 days - - - 30 to 60 days - - - 61 to 90 days - - - more than 90 days - 4,478

Total receivables (net) 16,982 36,958

Note 6: Non-Financial Assets

Note 6A. Land & buildings

Leasehold improvements

- Fair value 63,030 63,030 - Accumulated amortisation (42,545) (36,243) 20,485 26,787

Total leasehold improvements 20,485 26,787 Total land & buildings (non-current) 20,485 26,787 No indicators of impairment were found for land and buildings.

08-09 Annual Report.indd Sec1:92 14/09/2009 2:51:23 PM 08-09 AnnualReport.indd Sec1:93 Accumulateddepreciation Grosscarryingvalue(atfairvalue) Infrastructure, plantandequipment: Note 6B.Infrastructure,PlantandEquipment Accumulated depreciation/amortisation Gross bookvalue As at1July2008 Note 6C.AnalysisofProperty,PlantandEquipment Note 1. All revaluationsareconductedinaccordancewiththerevaluationpolicystatedat Total infrastructure,plantandequipment(non-current) Total infrastructure,plantandequipment Depreciation/ amortisationexpense bypurchase Additions Netbookvalue1July2008 Disposals Accumulated depreciation/amortisation Gross bookvalue Net bookvalueasof30June2009representedby: Net bookvalue30June2009 The Commissiondoesnotholdassetsunderconstructionorfinanceleases. TABLE A-Reconciliationoftheopeningandclosingbalancesproperty,plantequipment(2008-09) NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 adadBidnsInfrastructurePlant Land andBuildings (36,243) (42,545) (6,302) 63,030 26,787 63,030 20,485 20,485 $$$ - & Equipment (352,164) (316,484) (352,164) (35,680) (32,646) 557,523 556,519 205,359 205,359 240,035 557,523 205,359 205,359 33,650 2009 $ (316,484) (352,727) (394,709) 619,549 266,822 620,553 225,844 225,844 (41,982) (32,646) 556,511 240,027 240,027 33,650 Total 2008 $ 14/09/2009 2:51:23PM 93 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

Note 6C. Analysis of Property, Plant and Equipment (cont.)

TABLE A - Reconciliation of the opening and closing balances of property, plant and equipment 2007-08

Land and Buildings Infrastructure Plant & Equipment Total $$$ As at 1 July 2007 Gross book value 63,030 435,637 498,667 Accumulated depreciation/amortisation (29,941) (257,066) (287,007) Net book value 1 July 2007 33,089 178,571 211,660 Additions by purchase - 120,874 120,874 Depreciation/ amortisation expense (6,302) (59,418) (65,720) Net book value 30 Jnue 2008 26,787 240,027 266,814

Net book value as of 30 June 2008 represented by: Gross book value 63,030 556,511 619,541 Accumulated depreciation/amortisation (36,243) (316,484) (352,727) 26,787 240,027 266,814

The Commission does not hold assets under construction or finance leases. 2009 2008 $ $ Note 6D. Other Non-Financial Assets Prepayments 73,519 84,848 Total other non-financial assets 73,519 84,848

All other non-financial assets are current assets.

08-09 Annual Report.indd Sec1:94 14/09/2009 2:51:23 PM 08-09 AnnualReport.indd Sec1:95 Note 7B.Pa Settlement isusuallymadenet30days. All supplierpayablesarecurrentliabilities. $23,763). reporting dateare2009:$610,230(2008:$644,876),inexcessofoneyear$29,147 reporting date.Employeeprovisionsexpectedtobesettledintwelvemonthsfromthe above classificationdoesnotrepresenttheamountexpectedtobesettledwithinoneyearof unconditional rightofdeferraloneyear,henceinthecaseemployeeprovisions The classificationofcurrentprovisionsincludesamountsforwhichthereisnotan Total employeeprovisions Non-current Current Employee provisionsarerepresentedby: Note 7A.Suppliers o-urn - - Total emplo Superannuation Leave Salaries andwages Total otherpa GST payabletoATO Total supplierpa Non-current Current Supplier payables Total supplierpayables Trade creditors Note 7:Pa Note 8A.Emplo Note 8:Provisions y y ables y ee provisions ables y ables y y ables ee Provisions NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 639,377 639,377 610,230 593,859 29,147 40,638 54,543 54,543 54,543 54,543 4,880 2009 169 169 $ 114,997 668,639 668,639 644,876 619,099 114,997 114,997 114,997 23,763 46,793 2,747 2008 378 378 $ 14/09/2009 2:51:24PM 95 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

2009 2008 Note 8B: Other Provisions $ $

Restoration obligations 95,712 90,870 Total other provisions 95,712 90,870

Other provisions are reprented by: Current -- Non-current 95,712 90,870 Total other provisions 95,712 90,870

All other provisions are non-current liabilities. Provision for Provision for restoration restoration $ Carrying amount 1 July 90,870 86,028 Additional provisions made - - Amounts used - - Unwinding of discount or change in discount rate 4,842 4,842 Closing balance 2009 95,712 90,870

The Commission has an agreement for leasing its premises which has provisions requiring the Commission to restore the premises to their original condition at the conclusion of the lease. The Commission has made a provision to reflect the present value of this obligation.

08-09 Annual Report.indd Sec1:96 14/09/2009 2:51:24 PM 08-09 AnnualReport.indd Sec1:97 Note 10:Members'Remuneration Operating resul Difference Balance Sheet Cash FlowStatement Report cashandequivalentsasper: to CashFlowStatement N R Note 9:CashFlowReconciliation Net writedownofnon-financialassets Depreciation /amortisation Gain ondisposalofassets $195,000-209,999 $345,000-359,999 $250,000-264,999 $230,000-244,999 disclosed inNote11. The threemembersincludedinthisNotearethefull-time are shownbelowintherelevantremunerationbands. The numberofmemberstheCommissionincludedinthesefigures from operatingactivities: Reconciliation ofoperatingresulttonetcash by themembersofCommission. Total Remunerationreceivedordueandreceivable Total numberofmemberstheCommission $390,000-404,999 $360,000-374,999 $ 80,000-94,999 Increase/(decrease) inemployeeprovisions Increase/(decrease) inotherprovisions (Increase)/decrease insuppliers Increase/(decrease) inGSTpayable Increase/(decrease) inprepayments Increase/(decrease) inreceivables et cash econc ili f at rom operatin i on o t f cas h an g activities d cas NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS h equ AUSTRALIAN LAW REFORMCOMMISSION i va l ents asper FOR YEARENDED30JUNE2009 B a l ance Sh eet 1,638,943 1,638,943 Number (85,813) 887,418 (1,364) 83,479 57,465 32,646 41,982 11,329 11,457 2,625 4,842 8,310 2009 2009 $ $ 1 1 3 1 - - - - - 1,589,114 1,589,114 (210,528) (13,555) Number 144,134 831,019 65,720 41,848 37,436 4,842 4,975 2008 2008 $ $ 2 3 1 ------14/09/2009 2:51:24PM 97 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

Note 11: Related Party Disclosures Members of the Commission during the year were:

Full-time members Professor David Weisbrot (from 07/06/99) Professor Les McCrimmon (from 04/01/05) Professor Rosalind Croucher (from 05/02/07)

Part-time members Justice Susan Kenny (from 15/05/06 -14/5/09) Justice Robert French (from 15/07/06 - 1/9/08) Justice Berna Collier (from 02/10/07)

The aggregate remuneration of members is disclosed in Note 10.

In accordance with the Australian Law Reform Commission Act 1996 , only members who do not hold a judicial office are to be paid such remuneration as the Remuneration Tribunal determines.

Note 12: Executive Remuneration

2009 2008 The number of senior executives who received or were due to receive total remuneration of $130,000 or more: Number Number

$160,000 - $174,999 1 1 Total 1 1 The aggregate amount of total remuneration of executives shown above. 169,690 174,953

The aggregate amount of separation and redundancy/termination benefit payments during the year to executives shown above. Nil Nil

Note 13: Remuneration of Auditors

The fair value of the services provided was: Australian National Audit Office 19,500 18,000

No other services were provided by the Auditor-General.

08-09 Annual Report.indd Sec1:98 14/09/2009 2:51:24 PM 08-09 AnnualReport.indd Sec1:99 Note 14C.Netincomeandexpensefromfinancialliabilities Net gain/(loss)fromfinancialassets Interest revenue(seenote3C) Loans andreceivables Note 14:FinancialInstruments There isnoincomeorexpensefromfinancialliabilitiesatamortisedcostintheyearending30June2009. Financial liabilities Trade creditors Other financialliabilities Financial Liabilities Cashonhandordeposit Loans andreceivables: Financial Assets Net gain/(loss)loansandreceivables Note 14A Other payables Tradeandotherreceivable Note 14B Carrying amountoffinancialliabilities Carrying amountoffinancialassets . NetincomeandexpensefromFinancialAssets . CategoriesofFinancialInstruments NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION FOR YEARENDED30JUNE2009 1,655,925 1,638,943 85,131 85,131 85,131 54,543 16,982 54,712 2009 169 $ 1,626,072 1,589,114 130,679 130,679 130,679 114,997 115,375 36,958 2008 378 $ 14/09/2009 2:51:24PM 99 Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR YEAR ENDED 30 JUNE 2009

Note 14D. Fair Values of Financial Instruments 2009 2008

Carrying Carrying amount Fair value amount Fair value $$$$

Financial Assets

Cash at bank 1,638,943 1,638,943 1,589,114 1,589,114 Receivables for goods and services (net) 16,982 16,982 36,958 36,958

Total 1,655,925 1,655,925 1,626,072 1,626,072

Financial Liabilities

Trade creditors 54,543 54,543 114,997 114,997 Other payables 169 169 378 378 Total 54,712 54,712 115,375 115,375

Financial assets

The net fair values of cash, deposits on call and receivables approximate their carrying amounts.

Financial liabilities The net fair value for trade creditors all of which are short-term in nature is approximated by the carrying amounts.

Note 14 E. Credit Risk

The Commission's maximum exposures to credit risk at reporting date in relation to each class of recognised financial assets is the carrying amount of those assets as indicated in the Balance Sheet. The Commission has no significant exposures to any concentrations of credit risk.

100

08-09 Annual Report.indd Sec1:100 14/09/2009 2:51:25 PM 08-09 AnnualReport.indd Sec1:101 consultation andparticipationinthelawreformprocess. Output 1.2:Informationandeducationservicestoenhancecommunity Output 1.1:Reportsandcommunityconsultationdocuments. ensure thattheyareequitable,modern,fairandefficient. Outcome : Government andParliamentonmattersreferredtoitbytheAttorney-General. authority whoseprimaryfunctionistoprovidepolicyadvicetheFederal The Commissionoperatespredominantlyinoneindustry,beingastatutory Note 14F.Liquidityrisk The Commissionisstructuredtomeet Note 15A.OutcomesoftheCommission Note 15:ReportingofOutcomes Interest RateRisk Note 14G.MarketRisk The CommissionisnotexposedtoInterestRate Risk'. Risk' or'OtherPrice Commission tocertainmarketrisks.Theisnotexposed'Currency The Commissionholdsbasicfinancialinstrumentsthatdonotexposethe place toensurethereareappropriateresourcesmeetitsfinancialobligations. unlikely duetoCACActpaymentsandinternalpoliciesproceduresputin in meetingitsobligationsassociatedwithfinanciallibailities.Thisishighly liquidity riskisbasedonthenotionthatCommissionwillencounterdifficulty The Commission'sfinancialliabilitiesaresupplierpayables.exposureto The developmentandreformofaspectsthelawsAustraliato NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION one outcomeand FOR YEARENDED30JUNE2009 Risk. two outputs: 14/09/2009 2:51:25PM 101

Annual Report 2008—09 Financial Statements AUSTRALIAN LAW REFORM COMMISSION

NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS

FOR YEAR ENDED 30 JUNE 2009

Note 15B: Net Cost of Outcome Delivery

Outcome 1 Total 2009 2008 2009 2008 $ $ $ $ Departmental expenses 3,432,712 3,742,757 3,432,712 3,742,757 Total expenses 3,432,712 3,742,757 3,432,712 3,742,757 Costs recovered from provision of goods and services to the non-government sector Departmental expenses - --- Total costs recovered - --- Other external revenues Departmental Sale of goods and services – 30,237 19,166 30,237 19,166 to related entities Interest 85,131 130,679 85,131 130,679 Gain from disposal of assets 1,364 - 1,364 - Other 13,445 384 13,445 384 Total Departmental 130,177 150,229 130,177 150,229 Total other external revenues 130,177 150,229 130,177 150,229 Net cost/(contribution) of 3,302,535 3,592,528 3,302,535 3,592,528 outcome

Note 15C. Major Classes of Departmental Revenues and Expenses by Output Groups and Outputs

All the Commission's revenues, expenses, assets and liabilities are attributable to two outputs. The Commission varied its output structure from one to two outputs in 2002-03 to better reflect the nature of outputs produced.

Outcome Outcome Total Output Output Output Output 1.1 1.2 1.1 1.2 2009 2009 2008 2008 2009 2008 $ $ $ $ $ $ Departmental expenses: Employees 2,232,370 97,468 2,410,717 90,221 2,329,838 2,500,938 Suppliers 954,502 68,902 1,070,945 100,312 1,023,404 1,171,257 Depreciation and amortisation 41,982 - 65,720 - 41,982 65,720 Finance Costs 4,842 - 4,842 - 4,842 4,842 Write-down and impairment of assets 32,646 - - - 32,646 - Total departmental expenses 3,266,342 166,370 3,552,224 190,533 3,432,712 3,742,757 Funded by: Revenues from Government 3,193,630 166,370 3,191,467 190,533 3,360,000 3,382,000 Sale of goods and services 21,968 8,269 9,122 10,044 30,237 19,166 Interest 85,131 - 130,679 - 85,131 130,679 Gain from disposal of assets 1,364 - - - 1,364 - Other 13,445 384 13,445 384 Total departmental revenues 3,315,538 174,639 3,323,465 171,865 3,490,177 3,532,229

The Commission's outcomes and outputs are described in Note 15A. 102

08-09 Annual Report.indd Sec1:102 14/09/2009 2:51:25 PM 08-09 AnnualReport.indd Sec1:103 Note 15D.MajorClassesofDepartmentalAssetsandLiabilitiesbyOutcomes Assets and liabilities that can not be reliably attributed to outputs and outcomes. outcomes. and outputs to attributed reliably not be can that liabilities and Assets oa eatetllaiiis 789,801 Total departmental liabilities Other Provisions Employee Provisions payables Other Suppliers Departmental Liabilities Total departmental assets Other Non-FinancialAssets Equipment Infrastructure,Plant and Land and Buildings receivables other and Trade Cashand cashequivalents Departmental assets: NOTES TO AND FORMINGPART OFTHEFINANCIAL STATEMENTS AUSTRALIAN LAW REFORMCOMMISSION

Outcome 1,955,288 1,638,943 639,377 205,359 95,712 54,543 73,519 20,485 16,982

2009 FOR YEARENDED30JUNE2009 169 $ 1,977,734 1,589,114 668,639 240,027 874,884 114,997 90,870 84,848 26,787 36,958 2008 378 $ Total 1,955,288 1,638,943 639,377 205,359 789,801 95,712 73,519 20,485 16,982 54,543 2009 169 $ 1,977,734 1,589,114 668,639 240,027 874,884 114,997 90,870 84,848 26,787 36,958 2008 378 $

14/09/2009 2:51:25PM 103

Annual Report 2008—09 Financial Statements Special Features

Talk to Us . . . 105 Reconciliation Action Plan 106 International Collaboration 108 Internship Program 114 Australian Academy of Law 117

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08-09 Annual Report.indd Sec1:104 14/09/2009 2:51:25 PM Consistent with the federal Government’s e-Government strategies, the ALRC has expanded its use of online technologies as a consultation tool, with the creation of a new interactive website that hosts online discussion forums with regards to ALRC current references.

The ‘Talk to Us’ website has been created in a bulletin board format to solicit responses to key questions for the ALRC’s reviews into Commonwealth secrecy laws and the Royal Commissions Act 1902 (Cth) and related issues.

To contribute to its key performance indicator of achieving broad-based community involvement in law reform, the ALRC strives to adopt wide-ranging consultation methods. The ALRC has long recognised the importance of the internet in publicising and seeking public input into its inquiries and distributing its publications. The ALRC’s website already provides free access to all ALRC publications; easy-to-read summaries of current and past inquiries; information on ALRC activities; online comments forms and information on how to contribute formally to ALRC inquiries.

The ‘Talk to Us’ online forums take this engagement a step further, providing an easy and accessible vehicle for the public to help shape the law reform to Us . Talk process, by allowing people to post their comments about specific questions in a moderated online discussion.

‘Talk to Us … about Secrecy’ was launched on 2 February 2009, to coincide with a two-day ‘National Secrecy Phone-In’ conducted on 11 and 12 February. The ‘Talk to Us … about Royal Commissions’ website followed on 6 April 2009, in conjunction with the release of that Inquiry’s Issues Paper. The forums feature prominently on the main ALRC website and have been promoted in the media and to key stakeholder groups.

The ALRC has developed a series of protocols—for users of the website; for staff moderating online posts; and for feeding online discussions into the formal consultation process. While activity on both sites has been modest in the early stages, initial feedback from site users has been extremely positive.

The ALRC anticipates the use of online discussion forums will increasingly provide opportunities to enhance more traditional consultation mechanisms. The current ‘Talk to Us’ forums will be updated as the inquiries progress, and it is anticipated that new forums will be created to complement future ALRC activities. Annual Report 2008—09 Report Annual 105

08-09 Annual Report.indd Sec1:105 14/09/2009 2:51:25 PM The ALRC’s Reconciliation Action Plan: Practical Steps Towards Reconciliation

The development and launch of the ALRC’s inaugural Reconciliation Action Plan (RAP) this year represents a significant development for the organisation. The ALRC’s RAP documents its vision for reconciliation and outlines the strategies that the ALRC will adopt to contribute to and promote reconciliation between Indigenous and non-Indigenous Australians.

The ALRC shares the Australian Government’s commitment to ‘closing the gap that lies between us in life expectancy, educational achievement and economic opportunity’ and its recognition that the laws and policies of successive Parliaments and governments ‘have inflicted profound grief, suffering and loss on these our fellow Australians’ (K Rudd MP Apology to Australia’s Indigenous Peoples, 13 February 2008).

Accordingly, Australia’s laws must have proper regard to Indigenous interests, protect and promote Indigenous culture and improve social and economic outcomes for Indigenous people. As the national law reform body, the ALRC is uniquely placed to capitalise on the opportunity to contribute to social justice, equity and inclusion in Australia. Through its RAP, the ALRC has committed itself to a series of practical initiatives to ensure that Indigenous people are effectively engaged in the processes of law reform.

One of the major initiatives of the RAP is the establishment of an Indigenous Advisory Committee to advise on all aspects of the ALRC’s work, including the identification of potential future references for law reform that are of specific interest or importance to Indigenous people, and broadening the ALRC’s engagement with, and participation by, Indigenous communities in the ALRC’s consultation processes. The ALRC is also creating a dedicated Indigenous Law Student Internship program, to be launched in the next reporting period. A full list of the Indigenous Advisory Committee Members is at Appendix D.

The ALRC’s Reconciliation Action Plan was developed with input from across the organisation. Initially the ALRC met with a number of Indigenous people to discuss the formulation of a RAP and possible initiatives specific to the role and functions of the ALRC. The ALRC now has a RAP Working Group with representation from across the organisation. 106

08-09 Annual Report.indd Sec1:106 14/09/2009 2:51:26 PM As part of the process of reconciliation, all ALRC staff attended a two-day Aboriginal Cultural Appreciation program delivered by Tranby Aboriginal College in February 2009. During this training a ‘Welcome to Country’ protocol for the ALRC was developed along with other initiatives that are now part of the RAP. Reconciliation Australia also had input into the formulation of the RAP.

More than 70 guests attended the launch of the ALRC’s RAP—which was combined with the release of a special edition of the ALRC’s journal, Reform, focusing on native title—at Tranby Aboriginal College in Sydney on 8 April 2009. Following the Welcome to Country by Mr Michael West from the Metropolitan Aboriginal Land Council, and an introduction by the Executive Director of Tranby Aboriginal College, Mr Lindon Coombes, speeches were presented by ALRC President, Professor David Weisbrot; the Attorney-General, the Hon Robert McClelland MP—the Minister responsible for Native Title—who formally launched the RAP; and Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma, who launched the ALRC’s journal Reform. The launch proceedings were wrapped up by a performance from Indigenous artist and musician, Ms Emma Donovan.

The ALRC’s RAP has since been highlighted by Reconciliation Australia as their

‘RAP of the month’ on its website in April/May 2009. RAP

The ALRC RAP Working Group is committed to monitoring the ALRC’s achievements against the goals of the RAP and to evaluating and updating the RAP annually to ensure the ALRC’s commitment to reconciliation is ongoing and constantly developing to achieve successful and positive outcomes.

The ALRC’s Reconciliation Action Plan is available on the ALRC website.

Aboriginal and Torres Strait Islander Indigenous artist and musician, 2008—09 Report Annual Social Justice Commissioner, Mr Tom Ms Emma Donovan. Calma. 107

08-09 Annual Report.indd Sec1:107 14/09/2009 2:51:26 PM International Collaboration

The ALRC’s recommendations must represent best practice and the ALRC continues to engage with other law reform and expert bodies nationally and internationally to share information and ideas and to benchmark ALRC practices and procedures.

The ALRC also takes responsibility—particularly in our region of Asia and the South Pacific—to assist law reform bodies in developing their own practices and procedures as well as in offering training to legal officers and staff in the processes of law reform.

ALRAC

The Australasian Law Reform Agencies Conference (ALRAC) is a regular event on the law reform calendar that provides valuable connections and networks, as well as a program targeted to improving the business of law reform across Asia and the Pacific.

The following members and staff of the ALRC attended the 2008 ALRAC in Port Vila, Vanuatu on the 10–12 September; President, Professor David Weisbrot; Commissioner, Professor Rosalind Croucher; Senior Legal Officer, Ms Isabella Cosenza; Research Manager, Mr Jonathan Dobinson; and Executive Director, Ms Sabina Wynn. More than 80 people attended the conference, including a large contingent from the Asia Pacific region with delegates from Solomon Islands, Vanuatu, Papua New Guinea, Nauru, Kiribati, Fiji, Tonga and Samoa. Other international delegates came from South Africa, Scotland, New Zealand, Canada and the UK. Australia was represented by delegates from the ALRC and law reform agencies of NSW, Victoria, Queensland, WA, NT and Tasmania.

The two-day conference featured a full program with key themes emerging including: the mechanisms and the role of constitutional change; the role and interaction of customary laws and civil laws; the relationship between individual human rights, community and customary rights and obligations; the importance of community participation in law reform; and how to facilitate collaboration between law reform bodies, particularly between the developed and developing countries.

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08-09 Annual Report.indd Sec1:108 14/09/2009 2:51:26 PM The ALRC was an active participant in the conference, with the President delivering an address on regional cooperation with emphasis on the ALRC’s relationship with PNG. He also made a speech at the official conference dinner. Professor Croucher and Mr Dobinson also addressed the conference, while Ms Wynn facilitated a meeting of executive officers, to look at ways of collaborating more effectively across the sector.

Dancers welcome delegates to ALRAC 2008. International collaboration

British Columbia Law Institute

On 25 March 2009, the ALRC hosted an all-day meeting in its Sydney offices with Ms Laura Watts, a staff lawyer with the British Columbia Law Institute (BCLI). Ms Watts met with Commissioners and senior staff of the ALRC to exchange information about the workings of the ALRC and BCLI, and to discuss possible new initiatives to enhance communication between international law reform bodies.

Projects under discussion included the development of a ‘list serve’ for sharing corporate information; the development of a law reform searchable publication database; and the development of a secure website, which could pool information and resources for law reform agencies—an initiative that would also benefit agencies in developing countries. Annual Report 2008—09 Report Annual 109

08-09 Annual Report.indd Sec1:109 14/09/2009 2:51:26 PM Samoa Law Reform Commission

In May 2009, the ALRC held four days of training sessions for Ms Leilani Tuala- Warren, Executive Director of the Samoa Law Reform Commission.

Ms Tuala-Warren spent time observing the work of the ALRC. She was given an overview of operations at the ALRC, as well as detailed briefings on the roles of Commissioners; the Executive Director; the Research Unit; and consultation and communication strategies. ALRC Commissioners and staff were briefed on the work of the Samoa Law Reform Commission and the ALRC facilitated visits for Ms Tuala-Warren to the NSW Law Reform Commission and the Australian Human Rights Commission for briefings on their activities.

ALRC Executive Director, Ms Sabina Wynn with Ms Leilani Tuala-Warren, Executive Director, Samoa Law Reform Commission.

ALRC assists Republic of Botswana to establish a new Law Reform Agency

A significant highlight of the current reporting period was an invitation extended to the ALRC by the Government of Botswana to assist in the establishment of a law reform commission in that country.

The Republic of Botswana is one of the real success stories in modern Africa, with a thriving democratic process, a healthy civil society, a solid economy 110

08-09 Annual Report.indd Sec1:110 14/09/2009 2:51:27 PM (based on diamonds and tourism) and a strong commitment to good government and anti-corruption. According to the World Bank, Botswana is the highest rated country in Africa in risk management terms for foreign investment.

In 2008, the Botswana Economic Advisory Council (BEAC) produced the Botswana Economic Efficiency Report, which strongly recommended the establishment of an institutional law reform commission to provide for the systematic review and reform of the country’s laws, including those regulating the domestic economy, foreign investment and international trade—many of which date back to the colonial era, and few of which meet international best practice standards.

The Botswana Government—with strong support from the President and the Attorney-General—quickly accepted this recommendation in principle, and commenced a process of planning and consultation. After looking around the world for a suitable law reform body to serve as Technical Adviser for this project, the Australian Law Reform Commission was approached. The ALRC agreed to provide this service (on a strictly pro bono basis), working in association with a distinguished local lawyer, Dr Baathlodi (‘Bucs’) Molatlhegi.

According to the Attorney General, the Hon Dr Athaliah Molokomme MP, the

ALRC was chosen for this purpose because of its outstanding international International Collaboration

reputation, as well as its training and support for other law reform bodies in the developing world, such as those in Papua New Guinea, the Solomon Islands, l Samoa, Malawi, South Africa, Kenya, Tanzania and Lesotho.

Although most of the research, writing and editing of the consultancy report to Government has been handled from Botswana, with the ALRC providing substantive and editorial input, ALRC President Professor David Weisbrot and Commissioner Professor Les McCrimmon visited Botswana between 16–30 January 2009, for an extensive round of meetings, briefings and consultations with key stakeholders. In these meetings, the views of stakeholders towards a range of important issues were canvassed, including: the preferred model, structure and location of the law reform commission; reporting lines; budget, staffing and IT requirements; the relationship with other

bodies, including the Attorney-General’s Chambers and the Parliamentary Law Reform Committee; and the initiation of law reform projects (especially whether these could be self-generated or should require written terms of reference from the Attorney-General).

Those consulted included, among others: the Office of the President; the Council of Chiefs; the Attorney-General’s Chambers; the Ministry of Finance; the Parliamentary Law Reform Committee; the High Court, the Customary Court Annual Report 2008—09 Report Annual 111

08-09 Annual Report.indd Sec1:111 14/09/2009 2:51:27 PM and the Customary Court of Appeal; the senior officers of a large number of Government departments and agencies, including those involved in economic and social development, labour and home affairs; the Directorate on Corruption and Economic Crime; the Botswana Federation of Trade Unions; the Law Reform Committee of the Botswana Law Society; the University of Botswana Law Faculty; the Botswana Centre for Human Rights (‘Ditshwanelo’); the Botswana Congress of NGOs; the leading NGO working in the HIV-AIDS area (‘Bonela’); regulatory authorities (such as the Botswana Telecommunications Authority); the Media Institute of Southern Africa (involving journalists from all of the major print and broadcast media); the Botswana International Finances Services Centre; Botswana Export Development & Investment Authority; the Botswana Police Service; and the Botswana Confederation of Commerce, Industry and Manpower.

Although they were involved in the sensitive regional negotiations at that time over power-sharing in neighbouring Zimbabwe, Professors Weisbrot and McCrimmon also had the very great privilege of meeting on several occasions with the Attorney-General, the Hon Dr Athaliah Molokomme MP, as well as one meeting with the Minister for Defence, Justice and Security, the Hon Dikgakgamatso Seretse MP.

Professor Les McCrimmon, the Hon Dr Athaliah Molokomme MP and Emeritus Professor David Weisbrot.

The tenor of the consultations was remarkably similar, whether the stakeholders were from the public sector or the private sector, legal or non-legal. Concerns 112

08-09 Annual Report.indd Sec1:112 14/09/2009 2:51:27 PM were generally expressed that law reform in Botswana currently takes much too long, if it happens at all, and tends to be reactive to specific events or judicial decisions, rather than based on systematic, high level research and community consultation.

There was a high level of consensus that the new Botswana law reform agency should be full-time, independent (intellectually, but accountable for use of public funds), and resourced sufficiently well to attract and retain excellent staff. Indeed, the level of interest, goodwill and enthusiasm for the establishment of a new, permanent law reform body in Botswana is so strong that its main challenges may be to handle the initial volume of work and to manage the high expectations.

More detailed planning and budgeting is currently underway, with an expectation that the new Botswana Law Reform Commission will be established later in 2009. International Collaboration

Emeritus Professor David Weisbrot, Acting President Kgosi DK II (Donald) Mosielele, Professor Les McCrimmon and Kgosi Baleseng J Baleseng (BB) of the Botswana Customary Court of Appeal. Annual Report 2008—09 Report Annual 113

08-09 Annual Report.indd Sec1:113 14/09/2009 2:51:27 PM ALRC Internship Program

The reputation of the ALRC’s internship program continues to grow both locally and overseas. There was very strong competition for the 15 internship places offered in 2008–09. The successful candidates were of a very high calibre, providing invaluable input into the ALRC’s inquiries and other areas of the ALRC’s work.

The internship program is an important part of the ALRC’s community education program. An internship at the ALRC provides an opportunity for students to increase their awareness of law reform issues and improve their research and writing skills, while contributing to an ALRC inquiry. Interns join a team for one of the ALRC’s current inquiries and are supervised by a legal officer.

In 2008–09, our interns were also involved in a range of other ALRC work areas. Interns provided articles and book reviews for inclusion in the ALRC’s journal Reform, assisted in the development of online forums for ALRC inquiries, attended consultation meetings with inquiry stakeholders and public meetings.

Three applicants from overseas universities received placements, including Ms Isley Markman from the Harvard Law School, United States, who worked full- time for four weeks in January 2009 as part of the Harvard Clinical Placement Program. Ms Markman contributed to the ALRC’s Secrecy Inquiry, undertaking some important comparative work on information laws in the United States and Australia.

Mr Peter Fox, from the University of Maryland in the United States, and Ms Smriti Sriram from Durham University in the United Kingdom, were also offered placements as part of the winter intake of interns. Mr Fox completed his internship under the ongoing intern partnership arrangements the ALRC has established with the University of Maryland Law School. He worked on various aspects of native title, which was incorporated into the ALRC’s journal Reform: Native Title (Issue 93, 2009). Ms Sriram worked on comparative aspects of secrecy provisions—focusing on UK and Sweden—for the Secrecy Inquiry.

The 12 other students who completed internships at the ALRC came from the: University of Adelaide; University of Queensland; the University of Wollongong; University of New South Wales; University of Sydney; and University of Technology, Sydney.

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08-09 Annual Report.indd Sec1:114 14/09/2009 2:51:27 PM Ms Isley Markman, Harvard University.

I think this will be an influential experience for me, as it will inform my career aspirations and ultimate choices in law and public policy. The ALRC has set a very high standard regarding the type of work environment I hope to enjoy in my own career.

Peter Fox—University of Maryland ALRC Internship Program

Mr Christopher Beshara, University of Sydney. Annual Report 2008—09 Report Annual 115

08-09 Annual Report.indd Sec1:115 14/09/2009 2:51:27 PM Figure 2: ALRC Interns 2008–09 Christopher Beshara University of Sydney Marissa Chorn University of NSW Peter Fox University of Maryland (US) Stephanie Fusco University of Wollongong Isley Markman Harvard University (US) Katy McGree University of Queensland Larisa Michalko University of Sydney Tracy Nau University of NSW Erin Pynor University of Adelaide Katie Schafer University of Technology, Sydney Smriti Sriram Durham University (UK) Yi-Shun Teoh University of Sydney Aileen Tse University of NSW Rebecca Zaman University of NSW

The internship program will be expanded in the next reporting period to include a targeted Indigenous internship stream as part of the ALRC’s RAP.

I gained a fantastic insight into the public policy processes involved in conducting inquiries, and was able to perform some really interesting research as a member of a professional and friendly team who are passionate about their work. It was a highly worthwhile experience that I would recommend to anyone who is curious about or has an interest in public policy.

Tracy Nau—University of NSW

2008–09 Kirby Cup Law Reform Competition

Since 2006, the ALRC has coordinated the Kirby Cup Law Reform Competition for law students, with the Australian Law Students Association (ALSA). The 2008 competition was held at the University of Tasmania as part of the annual ALSA Conference, and reported on in the ALRC’s Annual Report for 2007–08. The 2009 competition was held in July in Brisbane, just outside the current reporting period, and will be reported on in next year’s Annual Report.

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08-09 Annual Report.indd Sec1:116 14/09/2009 2:51:28 PM Australian Academy of Law

The ALRC hosted the Australian Academy of Law (AAL) first Annual General meeting on 24 July 2008. The meeting was attended by 34 Fellows and Ex Officio Members. The AAL is a broadly-based and permanent body, comprising individuals of exceptional distinction from all parts of the legal community. It was launched in 2007 following a recommendation by the ALRC in its landmark report Managing Justice: a review of the federal civil justice system (ALRC 89, 2000).

Managing Justice traced the rapid growth, diversification and fragmentation of the Australian legal profession, and the serious challenges these present to the maintenance of a coherent professional identity and traditional collegiate approaches. The AAL brings together the different strands of the legal profession—the judiciary, legal practitioners and legal academics—united in promoting high standards of learning and conduct and encouraging appropriate collegiality across the profession.

The ALRC assisted with the initial work of establishing the AAL, including developing a website and providing administrative support. An AAL secretariat has now been established and those functions are no longer being managed by the ALRC. Two current Members of the ALRC— Professor David Weisbrot and Professor Rosalind Croucher—are Foundation

Fellows of the AAL. Australian Academy of Law

The Annual General Meeting was followed by a one-day Symposium, held on 25 July 2008, and hosted by Mallesons Stephen Jaques. Highlights of the Symposium were an address by the Foundation Patron, the Hon Chief Justice Murray Gleeson AC, who spoke on ‘Reflections on a life in the law’; and the keynote address by NSW Legal Services Commissioner, Mr Steve Mark, entitled ‘Re-imagining lawyering—whither the profession’.

Annual Report 2008—09 Report Annual

The Hon Chief Justice Murray Gleeson AC. 117

08-09 Annual Report.indd Sec1:117 14/09/2009 2:51:28 PM Appendices

A: Corporate Plan 2009–2011 119 B: Key Supporting Policies and Documents 123 C: Terms of Reference 2008–09 124 D: Advisory Committee Members and Consultants 126 E: Agency Resource Statement and Resource for Outcomes 128 F: Implementation Activity 2008–09 130 G: Implementation Status of ALRC Reports 137 H: Citations of ALRC Reports in Major Court Decisions 148 I: Public Presentations and Contributions to 151 Newspapers and Journals J: Media Releases and Briefing Papers 155 K: Visitors to the ALRC during 2008–09 157

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08-09 Annual Report.indd Sec1:118 14/09/2009 2:51:28 PM Appendix A

Corporate Plan 2009–2011

Our Vision

A fair, equitable and accessible system of federal justice that contributes to a just and secure society.

Outcome Statement

Informed Government decisions about the development, reform and harmonisation of Australian laws and related processes through research, analysis, reports and community consultation and education.

Our Strategies

The ALRC has two strategic programs to achieve its outcome—conducting inquiries into aspects of Australian law and related processes for the purpose of law reform; and community education about law reform.

Program 1 Conducting inquiries into aspects of Australian law and related processes for the purpose of law reform

The inquiry process allows the ALRC to provide the Government with the research and analysis that underpins the recommendations for law reform and provides the basis for informed Government decisions to improve Australia’s legal framework.

ALRC recommendations must represent international best practice. The ALRC will continue to engage with other law reform and expert bodies nationally and internationally to share information and ideas and to benchmark ALRC practices and procedures. Program 2 Community education about law reform

Educational outreach programs ensure the participation of legal, expert and stakeholder communities in the process of law reform and that the views and concerns of these communities are considered in formulating ALRC recommendations. This engagement is essential to ensure proposed reforms are relevant and achievable and will be effective for their intended purpose. Our Deliverables Program 1 Conducting inquiries

The ALRC will:

conduct inquiries at the request of the Attorney-General, expected to include Annual Report 2008—09 Report Annual at least two inquiries at any one time; 119

08-09 Annual Report.indd Sec1:119 14/09/2009 2:51:28 PM research and analyse—to the highest professional standards—the legal, social and economic issues raised by each inquiry and ensure all these aspects are taken into account in formulating recommendations to Government; deliver a final report to the Government for each inquiry—within the Government’s timeframe for reporting—that provides recommendations for reform; distribute high quality interim community consultation papers for each inquiry; deliver presentations and information sessions, as appropriate, on each inquiry; constitute an expert Advisory Committee for each inquiry; consult nationally with stakeholders, interested experts, and all relevant sectors of the community; advise the Attorney-General on priorities for law reform in Australia through regular briefings on law reform issues suitable for referral; continually improve community awareness of current inquiries by developing and implementing communication strategies for each inquiry using a range of communication tools, including the ALRC website and online strategies, contributions to external journals, printed material, and the mass media; consult internationally with law reform and other expert bodies and establish bilateral collaborative arrangements with national and overseas law reform bodies to facilitate the exchange of information on law reform; and participate in relevant regional and international organisations, including the Commonwealth Association of Law Reform Agencies and the Australasian Law Reform Agencies Conference, to ensure best practice.

Program 2 Community education about law reform

The ALRC will:

publish the ALRC’s journal, Reform, exploring topical and important areas of law reform; provide internship opportunities to law students from around Australia, expanding this program to include a targeted Indigenous internship stream; foster law reform debate and discussion through the annual Kirby Cup law reform debating competition; expand its educational processes to include online discussion forums and other means of encouraging relevant community participation in the ALRC’s activities; present at public conferences, seminars and parliamentary inquiries ensuring that the work of the ALRC is publically debated and discussed and contributes to the community’s knowledge about the Government’s law reform agenda;

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08-09 Annual Report.indd Sec1:120 14/09/2009 2:51:28 PM continually improve access to information on the ALRC’s work by providing information on the Commission’s findings and recommendations to Government, the legal profession, business leaders and relevant community bodies; maintain an up-to-date, accessible and informative website that provides increased access to ALRC publications and activities.

Our Key Performance Indicators Program 1 Conducting inquiries

There are two Key Performance Indicators (KPIs) for the ALRC by which it will measure the success of Program 1 in delivering its objective, as follows:

1. The level of implementation that ALRC reports achieve over time.

The ALRC sets a KPI that over 80% of reports are implemented by Government and other bodies, either substantially or partially.

2. The number of citations or references to ALRC reports and recommendations in parliamentary debates, court and tribunal case reports, academic and other publications, and in the media.

The implementation by Government over time of ALRC recommendations gives an indication of the ALRC’s relative success in facilitating informed decision making by Government. It is recognised that ALRC reports and recommendations are not self-executing. There is no statutory requirement for the Australian Government to respond formally to an ALRC report within a certain timeframe, nor is there a specified timeframe for implementation of recommendations. This can result in delay between the presentation of a final report to Government and the adoption of recommendations and their translation into legislation or other procedures. Therefore, implementation over time is a better measure of the ALRC’s success in achieving its desired outcome. Having the ALRC’s recommendations discussed on many levels Appendix A

in government and in the relevant community also provides an indication of the

relevance of the ALRC’s work to fostering discourse that leads to informed l decision making. Program 2 Community education about law reform

There are six KPIs for the ALRC by which it will measure the success of Program 2 in delivering its objective, as follows:

1. Readership of the Reform journal and other ALRC publications remains high, as evidenced by the number of journals and consultation papers distributed and accessed.

2. The applications received from law students from around Australia to

participate in the internship program. 2008—09 Report Annual 121

08-09 Annual Report.indd Sec1:121 14/09/2009 2:51:28 PM 3. The level of interest in the Kirby Cup law reform debating competition.

4. The ALRC is asked to present papers and findings at public events including law reform conferences and seminars, and is asked to contribute articles and papers about areas of law reform that are the subject of its inquiries.

5. ALRC reports and recommendations are discussed and referred to in a wide range of media.

6. The number of visits to the ALRC’s website and its online discussion forums continue to show a high level of activity and engagement in all aspects of the ALRC’s activities.

These KPIs measure the public’s engagement with the ALRC’s work and its relevance to current discourse recognising that informed government decision making about law reform benefits from informed community debate and discussion of the issues and processes involved.

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08-09 Annual Report.indd Sec1:122 14/09/2009 2:51:28 PM Appendix B

Key Supporting Policies and Documents

Information about the Australian Law Reform Commission’s functions, objectives, policies and activities can be found in the following documents.

Legislation Information Management Policies

Australian Law Reform Commission Access to Reference Material Policy* Act 1996 (Cth) Internet and Email Policy Commonwealth Authorities and Records Management Policy Companies Act 1997 (Cth) Library Collection Policy Temporary Reference Collection Policy Portfolio Budget Statements Interns Policies Portfolio Budget Statements 2008–09, Attorney-General’s Portfolio Intern Placement Policy* School Student and Legal Practice Work Strategic and Operational Plans Experience Policy* ALRC Strategic Plan 2009–2011* Media and Publications Policies

Finance Policies Approval for Use of ALRC Copyright Parliamentary Security Pass Policy Policy* Cabcharge Use Policy Communications with People with a Environmental Management Policy* Disability Policy* Personal Use of Telephones Policy Communications with People with a Travel Policy Disability Procedures Purchasing Policy and Procedures Media Liaison Policy Fraud Policy Statement* Privacy Policy*

Fraud Control Plan Publications Distribution Policy* Appendix B

Depreciation of Works of Art Policy

Reconciliation Action Plan. l

Human Resources Policies The Australian Law Reform Commission Code of Conduct Reconciliation Action Plan 2009*

Equal Employment Opportunity Policy Welcome to Country and Acknowledgment Leave Applications Policy of Country Protocols Occupational Health & Safety Policy Performance Appraisal System Policy and Guidelines Promotions Policy Reasonable Adjustment Guidelines Work From Home Policy *Available on the ALRC website. 2008—09 Report Annual 123

08-09 Annual Report.indd Sec1:123 14/09/2009 2:51:28 PM Appendix C

Terms of Reference 2008–09

REVIEW OF SECRECY LAWS

I, ROBERT McCLELLAND, Attorney-General of Australia, having regard to:

c the desirability of having comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information;

c the increased need to share such information within and between governments and with the private sector;

c the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government; and

c previous reports (including previous reports of the Commission) that have identified the need for reform in this area

REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government through providing appropriate access to information.

1. In carrying out its review, the Commission will consider:

(a) relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality;

(b) whether there is a need to consolidate and modernise relevant provisions currently in the Crimes Act 1914 and other Commonwealth legislation for inclusion in the Criminal Code;

(c) the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle-blowing, and data-matching;

(d) whether there should be different considerations for secrecy laws relating to the protection of national security and other sensitive Commonwealth information; and any related matter.

2. In carrying out its review, the Commission is to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies. 124

08-09 Annual Report.indd Sec1:124 14/09/2009 2:51:29 PM 3. The Commission will provide its final report to me by 31 October 2009.

Dated: 5 August 2008 Robert McClelland Attorney-General

REVIEW OF THE ROYAL COMMISSIONS ACT 1902 AND RELATED ISSUES

I, ROBERT McCLELLAND, Attorney-General of the Commonwealth of Australia, having regard to the need to ensure that the executive government has available to it forms of inquiry on matters of public importance which are effective and efficient in the context of contemporary requirements, refer to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, the operation and provisions of the Royal Commissions Act 1902 (the Act) and the question whether an alternative form or forms of Commonwealth executive inquiry should be established by statute.

1. In carrying out its review, the Commission is to consider:

(a) whether there is any need to develop an alternative form or forms of Commonwealth executive inquiry, with statutory foundations, to provide more flexibility, less formality and greater cost-effectiveness than a Royal Commission (particularly whether there would be any advantage in codifying special arrangements and powers that should apply to such alternative forms of inquiry);

(b) whether there is any need to develop special arrangements and powers for inquiries involving matters of national security;

(c) the appropriate balances between powers for persons undertaking inquiries and protections of the rights and liberties of persons interested in, or potentially affected by, inquiries;

(d) the appropriateness of restrictions on the disclosure of information to, and use of information by, Royal Commissions and other inquiries, including restrictions Appendix C

contained in other legislation (but not including those arising from the operation of l client legal privilege); and

(e) suggestions for changes to the Act proposed or raised by Royal Commissions.

2. In carrying out its review, the Commission will identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies.

3. The Commission will provide its final report to me by 30 October 2009.

Dated: 14 January 2009 Robert McClelland Attorney-General Annual Report 2008—09 Report Annual 125

08-09 Annual Report.indd Sec1:125 14/09/2009 2:51:29 PM Appendix D

Advisory Committee Members and Consultants

Secrecy Inquiry Advisory Committee Members

Ms Lynelle Briggs, Australian Public Service Commissioner

Mr Ian Carnell, Inspector-General of Intelligence and Security

Mr Chris Craigie SC, Commonwealth Director of Public Prosecutions

Professor Robin Creyke, College of Law, Australian National University

Mr Simon Daley, Australian Government Solicitor

Mr Chris Erskine SC, Blackburn Chambers

Justice Paul Finn, Federal Court of Australia

Mr Kevin Fitzpatrick, Chief Tax Counsel, Australian Taxation Office

Mr Stephen Gageler SC, Solicitor-General of Australia

Mr John McGinness, Director, National Judicial College of Australia

Professor John McMillan, Commonwealth Ombudsman

Mr Andrew Metcalfe, Secretary, Department of Immigration and Citizenship

Associate Professor Moira Patterson, Law Faculty, Monash University

Mr Peter Timmins, Timmins Consulting

Ms Annette Willing, Australian Government, Attorney-General’s Department

Royal Commissions Inquiry Advisory Committee Members

Ms Sheila Butler, former Secretary to several recent Commonwealth public inquiries

Emeritus Professor Enid Campbell AC OBE, former Dean, Faculty of Law and Sir Isaac Isaacs Professor of Law, Monash University

The Hon Stephen Charles QC, former judge of the Victorian Court of Appeal

The Hon Terence Cole AO RDF QC, former judge of the New South Wales Court of Appeal

126

08-09 Annual Report.indd Sec1:126 14/09/2009 2:51:29 PM Mr Simon Daley, Australian Government Solicitor

Ms Megan Davis, Director, Indigenous Law Centre, University of New South Wales

The Hon Tony Fitzgerald AC QC, former judge of the New South Wales Court of Appeal

Dr Scott Prasser, Senior Lecturer in Management, Faculty of Business, University of the Sunshine Coast

Acting Justice Ronald Sackville AO QC, New South Wales Court of Appeal

Mr Michael Sexton SC, New South Wales Solicitor-General

Ms Iris Stevens, former judge of the District Court of South Australia

Dr Kristin van Barneveld, Director, Policy and Research, Community and Public Sector Union

Mr Bret Walker SC, Barrister, St James Hall

The Hon Hal Wootten AC QC, former judge of the New South Wales Supreme Court and Foundation Dean of Law, University of New South Wales

Mr George Zdenkowski, Visiting Professor of Law at the University of Tasmania, and former New South Wales Magistrate

Indigenous Advisory Committee

Mr Maurice Shipp, Indigenous Childrens’ Strategic Policy Aboriginal and Torres Strait Islander Unit Office for Children, Youth and Family Support

Professor Larissa Behrendt, Jumbunna Indigenous House of Learning

Ms Neva Collings, Environmental Defender’s Office Appendix D

Ms Megan Davis, Director, Indigenous Law Centre, University of New South Wales l

Mr Warren Mundine, NSW Native Titles Services

Mr Darryl French, Tranby Aboriginal College

Mr Steven Ross, Murray Lower Darling River Indigenous Nations

Ms Terri Janke, Terri Janke & Associates

Mr Lincoln Crowley, NSW Indigenous Barristers Strategy Working Party Annual Report 2008—09 Report Annual 127

08-09 Annual Report.indd Sec1:127 14/09/2009 2:51:29 PM Appendix E

Agency Resource Statement and Resources for Outcomes

1.Agency Resource Statement 2008-09

Actual Payments Balance Available Made Remaining Appropriations for 2008-09 2008-09 $'000 (a) (b) (a-b) Ordinary Annual Services1 Departmental appropriation Prior year departmental appropriation Departmental appropriation 3,360 3,433 Revenues from other independent sources 130 Total 3,490 3,433 57

Administered expenses

Payments to CAC Act Bodies Total 3,490 3,433 Total ordinary annual services 3,490 3,433

Total Resourcing and Payments 3,490 3,433

1 Appropriation Bill (No.1) 2008-09 and Appropriation Bill (No.3) 2008-09

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08-09 Annual Report.indd Sec1:128 14/09/2009 2:51:29 PM 2. Resources for Outcomes 2008–09

Outcome 1: The development and reform of aspects of the laws of Australia to ensure that they are equitable, modern, fair and efficient. Budget* Actual expenses Variation 2008-09 2008-09 $'000 $'000 $'000 (a) (b) (a)-(b) Output Group 1.1 Output 1.1: Reports and community consultation documents

Departmental outputs 3,178 3,194 - 16 Revenues from other sources 140 122 18 Subtotal for Output Group 1.1 3,318 3,316 2

Output Group 1.2 Output 1.2: Information and education services to enhance community consultation and participation in the law reform process

Departmental outputs 182 166 16 Appendix E

Revenues from other sources 20 8 12

Subtotal for Output Group 1.2 202 174 28 l Total resources for Outcome 1 3,520 3,490 20 Average staffing level (number) 17 22 (5)

* Full-year budget, including any subsequent adjustment made to the 2008–09 Budget Annual Report 2008—09 Report Annual 129

08-09 Annual Report.indd Sec1:129 14/09/2009 2:51:29 PM Appendix F

Implementation Activity 2008–09

The following provides an overview of activity in relation to ALRC reports during 2008–09.

ALRC 108—For Your Information: Australian Privacy Law and Practice

For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) was tabled in the Australian Parliament on 11 August 2008. On the same day, the Report was publicly launched at the ALRC offices by Senator the Hon John Faulkner, Special Minister for State and Cabinet Secretary, and the Attorney-General, the Hon Robert McClelland MP.

When launching the Report, Senator Faulkner indicated that the Government would consider the ALRC’s recommendations in two stages. Stage 1 (to be completed in the 12–18 months following tabling) will include consideration of the ALRC recommendations relating to a single set of privacy principles, credit reporting and health regulations, and education concerning new technology. Stage 2 will consider the ALRC’s recommendations for removal of exemptions and data breach notification. The Government will consider harmonisation of Commonwealth, state and territory privacy laws, and the ALRC recommendations relating to the Office of the Privacy Commissioner concurrently. The Australian Government has commenced consultation on Stage 1 of the implementation of For Your Information.

ALRC 104—Fighting Words: A Review of Sedition Laws in Australia

The Australian Government response to Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006) on 23 December 2008 supported almost all of the report’s recommendations. The response indicated that the Australian Government will introduce legislation to implement the recommendations in 2009.

On 23 June 2009, the Anti-Terrorism Laws Reform Bill 2009 (Cth)—a private Senator’s Bill sponsored by Senator Scott Ludlum—was introduced into the Australian Parliament. The Bill proposes to repeal s 80.2 of the Criminal Code Act 1995 (Cth), which provides for the offence of sedition.

ALRC 103—Same Crime, Same Time: Sentencing of Federal Offenders

At a Federal Criminal Justice Forum in Canberra on 28–29 September 2008, the Minister for Home Affairs, the Hon Bob Debus MP, noted that some of the main priorities for action that emerged from the Forum included:

c implementation of Same Crime, Same Time: The Sentencing of Federal Offenders (ALRC 103, 2006). The Minister added that the report is now being actively considered; 130

08-09 Annual Report.indd Sec1:130 14/09/2009 2:51:29 PM c providing more diversionary options for sentencing judges and magistrates (which is considered in Same Crime, Same Time); and c establishment of a Federal Parole Board (Recommendation 23–1).

ALRC 102—Uniform Evidence Law

The Evidence Amendment Act 2008 (Cth) was assented to on 4 December 2008, substantially implementing the recommendations of Uniform Evidence Law (ALRC 102, 2005). The amending Act incorporates almost all of the recommendations of Uniform Evidence Law, except for the recommendations in relation to a general confidential relationships privilege. The Government has indicated that it will address these issues at the time it responds to the ALRC’s report, Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC 107, 2007).

One of the primary objectives of the review of the Uniform Evidence Act scheme was to further the harmonisation of the laws of evidence throughout Australia. On 15 September 2008, the Evidence Act 2008 (Vic) received assent. The Act is based on the provisions of the Model Uniform Evidence Bill which incorporated most of the recommendations of the Uniform Evidence Law report. The bulk of the provisions are due to commence on 1 January 2010 if not proclaimed earlier.

The Statutes Amendment (Evidence and Procedure) Act 2008 (SA) amends the Evidence Act 1929 (SA) in relation to the way evidence is taken in sexual offence proceedings, and from other vulnerable witnesses, including children. Some of the amendments are consistent with recommendations in Uniform Evidence Law, for example, the adoption of a provision similar to s 275A of the Criminal Procedure Act 1986 (NSW) that sets out a comprehensive and detailed list of inappropriate questions a court must disallow in civil and criminal matters (Recommendation 5–2).

ALRC 99—Genes and Ingenuity: Gene Patenting and Human Health

The ALRC is still awaiting the Government response to Genes and Ingenuity: Gene

Patenting and Human Health (ALRC 99, 2004). Appendix F

In March 2009, the ALRC made a submission to the Senate Standing Committee l on Community Affairs Inquiry into Gene Patents, which is primarily looking at the patentability of gene sequences—a much more narrow area than that considered in Genes and Ingenuity. The ALRC drew on its experience from the ALRC inquiry into the

intellectual property aspects of genetic material and technologies, which culminated in the release of the Genes and Ingenuity report. The Committee is due to report by December 2009.

In Genes and Ingenuity, the ALRC recommended an amendment to the Patents Act 1990 (Cth) to establish an exemption from patent infringement for acts done to study or experiment on the subject matter of a patented invention; for example, to investigate

its properties or improve upon it (Recommendation 13–1). In March 2009, IP Australia 2008—09 Report Annual 131

08-09 Annual Report.indd Sec1:131 14/09/2009 2:51:29 PM released a consultation document Exemptions to Patent Infringement, which sets out a proposal for an experimental use exemption under the Patents Act that is consistent with the ALRC recommendation.

In March 2009, IP Australia also released Getting the Balance Right: Toward a Stronger and More Efficient IP Rights System. This consultation paper proposes a number of amendments to the Patents Act, including two amendments that were recommended in the Genes and Ingenuity report:

c an amendment to include usefulness among the grounds considered during examination and re-examination and clarify that the requirement for usefulness is only satisfied if the patent specification discloses a specific, substantial and credible use for the invention (Recommendation 6–3); and c an amendment to clarify that ‘balance of probabilities’ is the standard of proof applied to all requirements during examination, re-examination and opposition proceedings (Recommendation 6–3 and 8–3)

It is expected that drafting instructions based on the proposals in the two IP Australia consultation documents will be completed by the end of 2009, with legislation expected to be introduced in the Australian Parliament in 2010.

ALRC 96—Essentially Yours: The Protection of Human Genetic Information in Australia

The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) received Royal Assent on 8 July 2009 (entry in force 5 August 2009) implementing two key recommendations of Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003):

In Essentially Yours, the ALRC also recommended amending the Privacy Act to permit a health professional to disclose genetic information about his or her patient to a genetic relative of that patient where the disclosure is necessary to lessen or prevent a serious threat to an individual’s life, health or safety, even where the threat is not imminent (Recommendation 21–1). In June 2009, after extensive consultation, the National Health and Medical Research Council (NHMRC) finalised the Guidelines for National Privacy Principles about Genetic Information under s 95AA of the Privacy Act. The Guidelines outline the circumstances in which genetic information may be used and disclosed for 132

08-09 Annual Report.indd Sec1:132 14/09/2009 2:51:29 PM the purposes of lessening or preventing a serious threat to the life, health or safety of an individual.

On 7 November 2008, the Minister for Home Affairs, the Hon Bob Debus MP, released for public consultation a Model Criminal Law Officers Committee of the Standing Committee of Attorneys-General Discussion Paper entitled Non-Consensual Genetic Testing. The Discussion Paper draws heavily on the ALRC’s thinking and discussion contained in Essentially Yours. The Discussion Paper proposes three draft model offences for consideration: an offence of obtaining bodily material for genetic testing; an offence of the use of bodily material for genetic testing; and an offence of the disclosure or use of results from genetic testing. Each of these offences has been developed along the lines of Recommendation 12–1 of Essentially Yours.

ALRC 89—Managing Justice: A Review of the Federal Civil Justice System

On 3 December 2008, the Australian Government introduced the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth). The Bill will amend the Federal Court of Australia Act 1976 (Cth) to allow the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. This will be useful in many cases, including where technical expertise is required. In Managing Justice: A Review of the Federal Civil Justice System (ALRC 89, 2000), the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).

ALRC 85— Australia’s Federal Record: A Review of Archives Act 1983

The Archives Amendment Act 2008 (Cth) implements a number of the ALRC’s recommendations in Australia’s Federal Record: A Review of Archives Act 1983 (ALRC 85, 1998), including:

c the insertion of an objects clause (Recommendation 1) (although not in the same terms as the ALRC recommendation);

c amendment of the definition of ‘record’ to include ‘recorded information in any Appendix F form’ (to include electronic formats) (Recommendation 24); l c confirmation that the NAA is an ‘executive agency’ rather than an agency that sits within a Department. The ALRC recommended that the NAA should be an independent statutory corporation (Recommendation 8);

c amendments that introduce the concept of ‘in the care of Archives’. Central to the concept is the recognition that NAA will not always be the best repository for particular resources. A number of recommendations in Australia’s Federal Record supported a similar regime. For example, Recommendation 87 states that Archives legislation should permit the NAA to authorise a Commonwealth institution, a non-Commonwealth institution or an individual to have custody of records of archival value subject to appropriate conditions. Annual Report 2008—09 Report Annual 133

08-09 Annual Report.indd Sec1:133 14/09/2009 2:51:29 PM ALRC 84—Seen and Heard: Priority for Children in the Legal Process

The Evidence Amendment Act 2008 (Cth) implements a number of recommendations in Seen and Heard: Priority for Children in the Legal Process (ALRC 84, 1997) that were incorporated into the Uniform Evidence Law report. These include:

c a new test for determining the competence of a witness to give sworn and unsworn evidence that focuses on the capacity of an individual to understand a question and to give an answer to a question that can be understood (Seen and Heard, Recommendation 98); c a prohibition on general warnings about the unreliability of children’s evidence, instead permitting a warning to be given only upon request of a party and where the court is satisfied that there are circumstances particular to that child (other than the child’s age) that affect the reliability of the child’s evidence (Seen and Heard, Recommendation 100); and c confirmation that the court may seek expert opinion evidence to assist it to determine if a witness is competent to give evidence (Seen and Heard, Recommendation 101). In 2009, the Australian Government released Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020. A number of the outcomes outlined in the Framework reflect recommendations in Seen and Heard, including:

c exploring the potential role for a National Children’s Commissioner (Recommendation 3); c national standards and monitoring of the out-of-home care system (Recommendations 161–162); and c improvement in data collection (Recommendation 166).

ALRC 80—Legal Risk in International Transactions

In Legal Risk in International Transactions (ALRC 80, 1996), the ALRC recommended that Australia accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (the Convention) (Recommendation 9). The Convention makes serving documents in foreign countries quicker and cheaper by enabling them to be provided to a designated central authority in participating countries. On 25 June 2009, the Convention was tabled in the Australian Parliament, together with National Interest Analysis proposing that Australia become a party to the Convention. Tabling in the Australian Parliament represents the first step in the formal process for Australia’s accession to the Convention.

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08-09 Annual Report.indd Sec1:134 14/09/2009 2:51:29 PM ALRC 77—Open Government: A Review of the Federal Freedom of Information Act 1982

On 26 November 2008, the Australian Government introduced the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth). The Bill repeals the power to issue conclusive certificates in the Freedom of Information Act 1982 (Cth) (FOI Act) for all exemption provisions. While the ALRC did not recommend the removal of all powers to issue conclusive certificates in Open Government: A Review of the Federal Freedom of Information Act 1982 (ALRC 77, 1995), it did recommend that provision for a conclusive certificate in ss 33A (Documents affecting relations with States) and 36 (Internal working documents) of the FOI Act should be removed (see Recommendations 45 and 53A).

On 24 March 2009, the Australian Government released exposure drafts of two Bills that propose a significant overhaul of the Freedom of Information Act 1982 (Cth) (FOI Act). Many of the provisions of the Information Commissioner Bill 2009 (Cth) and the Freedom of Information Amendment (Reform) Bill 2009 implement the ALRC recommendations in Open Government:

c the insertion of a new objects clause that explains clearly the underlying rationale for the FOI Act and its significance for the proper working of representative democracy (recommendations 1–5); c the establishment of a dedicated Freedom of Information Commissioner (recommendations 18–27); c the extension of the FOI Act to contracted service providers and subcontractors delivering services for and on behalf of the Commonwealth (recommendations 99–102); c the amendment of the Cabinet documents exemption to ensure that it only covers documents at the core of the Cabinet process (recommendations 46–48). c the amendment of the internal working documents exemption to relate to

deliberative processes (recommendations 51–52); and Appendix F c the repeal of exemptions for Executive Council documents, documents arising l out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations (Recommendations 50, 57, 72).

In May 2009, the ALRC made a submission to the Department of Prime Minister and

Cabinet, expressing strong support for the two Bills and noting that they substantially implement the ALRC’s Open Government recommendations. The ALRC did, however, note that the Bills do not implement a number of ALRC recommendations (including recommendations relating to time limits, fees, and the application of the Act to parliamentary departments and agencies listed in Schedule 2 of the FOI Act); as well as a number of recommendations relating to the FOI Act made in Australia’s Federal Record: A Review of Archives Act 1983 (ALRC 85, 1998). Annual Report 2008—09 Report Annual 135

08-09 Annual Report.indd Sec1:135 14/09/2009 2:51:29 PM ALRC 64—Personal Property Securities

In June 2009, the Australian Government introduced the Personal Property Securities Bill 2009 (Cth) into the Australian Parliament. The Bill proposes a single national law governing security interests in personal property. The Bill would also address the creation and extinguishment of security interests in personal property and set out rules for determining priority among competing interests in personal property, and establish a single national online register of personal property securities (the PPS Register).

ALRC 37—Spent Convictions

On 8 November 2008, Attorney-General of South Australia—the Hon Michael Atkinson MP—announced that the Commonwealth and State Attorneys General have agreed to release a model Bill and discussion paper detailing options for national laws to spend minor criminal convictions. The ALRC recommended a nationally consistent spent convictions scheme in Spent Convictions (ALRC 37, 1987).

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Implementation Status of ALRC Reports

Tabling Degree of Report Title Implementation brief date implementation ALRC 108 For Your 11 Aug UNDER Information: 2008 CONSIDERATION Australian Privacy (See Appendix F) Law and Practice

ALRC 107 Privilege in 13 Feb UNDER Perspective 2008 CONSIDERATION

ALRC 104 Fighting Words: A 13 Sep UNDER Review of Sedition 2006 CONSIDERATION Laws in Australia (See Appendix F)

ALRC 103 Same Crime, 22 Jun UNDER Same Time: 2006 CONSIDERATION Sentencing of (See Appendix F) Federal Offenders

ALRC 102 Uniform Evidence 8 Feb Evidence Amendment Act 2008 SUBSTANTIAL Law 2006 (Cth); Evidence Amendment (See Appendix F) Act 2007 (NSW); Evidence Act 2008 (Vic); Statutes Amendment (Evidence and Procedure) Act 2008 (SA); Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)

ALRC 99 Genes and 31 Aug House of Representatives PARTIAL. Appendix G Ingenuity: Gene 2004 Standing Committee on Legal FURTHER l Patenting and and Constitutional Affairs, PROPOSALS Human Health Review of Technological UNDER Protection Measures Exceptions CONSIDERATION (2006) (See Appendix F)

ALRC 98 Keeping Secrets: 23 Jun National Security Information SUBSTANTIAL The Protection 2004 Amendment Act 2005 (Cth); of Classified and National Security Information Security Sensitive (Criminal Procedure) Act 2004 Information (Cth) Annual Report 2008—09 Report Annual 137

08-09 Annual Report.indd Sec1:137 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 96 Essentially Yours: 29 May Disability Discrimination and SUBSTANTIAL The Protection of 2003 Other Human Rights Legislation (See Appendix F) Human Genetic Amendment Act 2009 (Cth) Information in [amendment of definition of Australia ‘disability’ to include ‘genetic predisposition to disability’, prohibition on employer requesting certain information from employee]; Section 95AA Guidelines For National Privacy Principles About Genetic Information; National Pathology Accreditation Advisory Council, Classification of Human Genetic Testing 2007 Edition (2007); National Statement on Ethical Conduct in Human Research (2007); Privacy Legislation Amendment Act 2006 (Cth); Human Genetics Advisory Committee established (2006); IFSA Standards Genetic Information and Family Medical History (2005); Family Law Regulations 2004 (Cth) [parentage testing forms]; Crimes Legislation Enhancement Act 2003 (Cth) [inter- jurisdictional sharing of DNA information with participating jurisdictions] ALRC 95 Principled 19 Mar A Guide To Framing PARTIAL. Regulation: 2003 Commonwealth Offences, Civil FURTHER Federal Civil & Penalties And Enforcement PROPOSALS Administrative Powers (2004) UNDER Penalties in CONSIDERATION Australia

ALRC 92 The Judicial 2 Oct Family Law Amendment Act PARTIAL. Power of the 2001 2005 (Cth) [appeals from Family FURTHER Commonwealth: Court]; High Court Rules 2004 PROPOSALS A Review of the [special leave applications]; UNDER Judiciary Act 1903 Jurisdiction of Courts Legislation CONSIDERATION Amendment Act 2002 (Cth) [appellate jurisdiction of Federal Court]; Supreme Court Amendment Act 2001 (ACT) [ACT Court of Appeal] 138

08-09 Annual Report.indd Sec1:138 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 91 Review of the 22 May Financial Services Reform PARTIAL. Marine Insurance 2001 (Consequential Provisions) Act FURTHER Act 1909 2001 (Cth) [Repeal s 59, 60 of PROPOSALS MIA Act] UNDER CONSIDERATION

ALRC 89 Managing Justice: 17 Feb Australian Academy of SUBSTANTIAL A Review of the 2000 Law established (2005); (See Appendix F) Federal Civil Administrative Appeals Tribunal Justice System Amendment Act 2005 (Cth); Family Law Rules 2004 (Cth); Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) [allows a single judge to dismiss an appeal for want of prosecution or failure to comply with a direction of the Court]; National Pro Bono Resource Centre established (2002); Council of Australian Tribunals established (2002); National Judicial College established (2002); Launch of Australian Law Online (2001); FLC review of social science literature proposal (2001); AUTC law discipline review (2001–02); changes to case management in Family Court of Australia and the Federal Court of Australia; Family Law Amendment Act 2000 (Cth) [arbitration of family law property matters] Appendix G

l ALRC 87 Confiscation that 15 Jun Proceeds of Crime Act 2002 SUBSTANTIAL Counts: A Review 1999 (Cth) of the Proceeds of Crime Act 1987

ALRC 85 Australia’s Federal 2 Jul Archives Amendment Act 2008 PARTIAL Record: A Review 1998 (Cth) [objects clause, definition (See Appendix F) of Archives Act of ‘record’, NAA as executive 1983 agency]; Census Information Legislation Amendment Act 2000 (Cth); E-Permanence Strategy Annual Report 2008—09 Report Annual 139

08-09 Annual Report.indd Sec1:139 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 84 Seen and Heard: 19 Nov Evidence Amendment Act 2008 PARTIAL. Priority for 1997 (Cth); Measures to Combat FURTHER Children in the Serious and Organised Crime PROPOSALS Legal Process Act 2001 (Cth) [examination UNDER & cross-examination of child CONSIDERATION witnesses]; NSW Law Society (See Appendix F) Representation Principles for Children’s Lawyers (2000); increase of age of criminal responsibility to 10—Children and Young People Act 1999 (ACT); Justice Act 1997 (Tas)

ALRC 82 Integrity: But Not 10 Dec Law Enforcement Integrity SUBSTANTIAL by Trust Alone 1996 Commissioner Act 2006 (Cth); Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth)

ALRC 80 Legal Risk in 8 Oct Cross Border Insolvency PARTIAL International 1996 Act 2008 (Cth); Electronic (See Appendix F) Transactions Transactions Act 2000 (Cth)— complementary legislation in all states and territories.

ALRC 79 Making Rights 10 Oct Disability Services Amendment PARTIAL Count: Services 1996 (Improved Quality Assurance) for People with a Act 2002 (Cth) Disability

ALRC 78 Beyond the Door 30 May NIL Keeper: Standing 1996 to Sue for Public Remedies

ALRC 77 Open 24 Jan Freedom of Information UNDER Government: A 1996 (Removal of Conclusive CONSIDERATION Review of the Certificates and Other (See Appendix F) Federal Freedom Measures) Bill 2008 (Cth); of Information Act Exposure Draft of Information 1982 Commissioner Bill 2009 (Cth); Exposure Draft of Freedom of Information Amendment (Reform) Bill 2009 (Cth)

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08-09 Annual Report.indd Sec1:140 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 75 Costs Shifting— 25 Oct Migration Litigation Reform Act PARTIAL. Who Pays for 1995 2005 (Cth) FURTHER Litigation PROPOSALS UNDER CONSIDERATION ALRC 74 Designs 31 Aug Designs Act 2003 (Cth) SUBSTANTIAL 1995 ALRC 73 For the Sake of 20 Jun Family Law Reform Act 1995 SUBSTANTIAL the Kids: Complex 1995 (Cth) Contact Cases and the Family Court

ALRC 72 The Coming 8 Mar Aged Care Act 1997 (Cth) SUBSTANTIAL of Age: New 1995 Aged Care Legislation for the Commonwealth

ALRC 70 Child Care for 8 Nov Child Care Legislation PARTIAL Kids 1994 Amendment Act 1998 (Cth) [confidentiality]; Child Care Legislation Amendment Act 1998 (Cth) [sanctions for breach]

ALRC 69 Equality Before Sex Discrimination Amendment SUBSTANTIAL the Law: Act 1995 (Cth); Family Law Reform Act 1995 (Cth); Part I: Justice for 25 Jul Domestic Violence Act 1995 Women 1994 (Norfolk Is) Appendix G

Part II: Women’s 21 Dec l Equality 1994

ALRC 68 Compliance 29 Jun Trade Practices Amendment (No PARTIAL with the Trade 1994 1) Act 2001 (Cth)

Practices Act 1974

ALRC 67 Equality Before 3 Mar see ALRC 69 SUBSTANTIAL (Interim) the Law: Women’s 1994 Access to the Legal System

ALRC 65 Collective 30 Sep Managed Investments Act 1998 SUBSTANTIAL

Investments: 1993 (Cth) 2008—09 Report Annual Other People’s Money 141

08-09 Annual Report.indd Sec1:141 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 64 Personal Property 27 May Personal Property Securities Bill UNDER Securities 1993 2009 (Cth) CONSIDERATION (See Appendix F) ALRC 63 Children’s 26 May Evidence (Closed-Circuit SUBSTANTIAL Evidence: Closed 1993 Television) (Amendment) Act Circuit TV 1994 (ACT); Crimes Amendment (Children’s Evidence) Act 1996 (NSW)

ALRC 61 Administrative 9 Sep NIL Penalties in 1992 Customs and Excise

ALRC 60 Customs and 7 May Customs Amendment Act (No1) PARTIAL Excise 1992 1997 (Cth); Customs Excise and Bounty Amendment Act 1995 (Cth)

ALRC 59 Collective 28 Apr Superannuation Industry SUBSTANTIAL Investments: 1992 (Supervision) Act 1993 (Cth); Superannuation Superannuation Resolution of Complaints Act 1993 (Cth)

ALRC 58 Choice of Law 28 May Choice of Law (Limitation PARTIAL 1992 Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1993 (Vic); Choice of Law (Limitation Periods) Act 1994 (WA); Choice of Law (Limitation Periods) Act 1994 (NT)

ALRC 57 Multiculturalism 28 Apr Evidence Act 1995 (Cth); SUBSTANTIAL and the Law 1992 Evidence Act 1995 (NSW); Racial Hatred Act 1995 (Cth); Family Law Reform Act 1995 (Cth); Crimes and Other Legislation Amendment Act 1994 (Cth) See also: Consumer Credit Code; Insurance Council of Australia, Insurance Code of Practice

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08-09 Annual Report.indd Sec1:142 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 55 Censorship 11 Sep Classification (Publications, SUBSTANTIAL Procedure 1991 Films and Computer Games) Act 1995 (Cth)—complementary legislation in each state and territory

ALRC 52 Guardianship and 20 Dec Guardianship and Management SUBSTANTIAL Management of 1989 of Property Act 1991 (ACT) Property

ALRC 51 Product Liability 15 Aug Alternative option implemented NIL 1989 by Trade Practices Amendment Act 1992 (Cth)

ALRC 50 Community 21 Nov National Health and Medical PARTIAL Law Reform for 1989 Research Council Guidelines on the ACT: 4th the provision of information to Report—Informed patients Decision-Making in Medical Procedures

ALRC 48 Criminal Admiralty 27 Nov Crimes Legislation Amendment SUBSTANTIAL Jurisdiction and 1990 Act 1992 (Cth); Crimes (Ships Prize and Platforms) Act 1992 (Cth); Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth)

ALRC 47 Community Law 6 Apr Powers of Attorney (Amendment) SUBSTANTIAL Reform for the 1989 Act 1989 (ACT); Property Law ACT: 3rd Report— Amendment Act 1990 (Qld) Enduring Powers Appendix G

of Attorney l

ALRC 46 Grouped 13 Dec Federal Court (Amendment) Act SUBSTANTIAL Proceedings in 1988 1991 (Cth) [did not adopt costs the Federal Court recommendations]

ALRC 45 General 13 Dec Bankruptcy Legislation SUBSTANTIAL Insolvency Inquiry 1988 Amendment Act 1996 (Cth); Insolvency (Tax Priorities) Legislation Amendment Act 1993 (Cth); Corporate Law Reform Act 1992 (Cth) Annual Report 2008—09 Report Annual 143

08-09 Annual Report.indd Sec1:143 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 44 Sentencing 25 Aug Crimes Legislation Act (No 2) PARTIAL 1988 1993 (ACT); Periodic Detention Act 1995 (ACT); Crimes Legislation Amendment Act (No 2) 1989 (Cth)

ALRC 43 The 24 Mar Interim report—see ALRC 44 PARTIAL (Interim) Commonwealth 1988 Prisoners Act

ALRC 42 Occupiers’ 13 Apr Law Reform (Miscellaneous SUBSTANTIAL Liability 1988 Provisions) (Amendment) Act 1991 (ACT)

ALRC 40 Service and 9 Dec Service and Execution of SUBSTANTIAL Execution of 1987 Process Act 1992 (Cth); Service Process and Execution of Process Act 1991 (Cth)

ALRC 39 Matrimonial 16 Sep Family Law Reform Act 1995 SUBSTANTIAL Property 1987 (Cth)

ALRC 38 Evidence 5 Jun Evidence Act 1995 (Cth); SUBSTANTIAL 1987 Evidence Act 1995 (NSW)

ALRC 37 Spent Convictions 3 Jun Crimes Legislation Amendment SUBSTANTIAL 1987 Act 1989 (Cth); Human Rights and Equal Opportunity Commission Regulations (Cth)

ALRC 36 Debt Recovery 21 Oct Bankruptcy Legislation SUBSTANTIAL and Insolvency 1987 Amendment Act 1996 (Cth); Magistrates Court (Enforcement of Judgments) Act 1994 (ACT); Insolvency (Tax Priorities) Legislation Amendment Act 1993 (Cth)

ALRC 35 Contempt 3 Jun Family Law Amendment Act PARTIAL 1987 1989 (Cth)

ALRC 33 Civil Admiralty 2 Dec Admiralty Act 1988 (Cth) SUBSTANTIAL Jurisdiction 1986

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08-09 Annual Report.indd Sec1:144 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 32 Community 23 Oct Law Reform (Miscellaneous SUBSTANTIAL Law Reform for 1986 Provisions) (Amendment) Act the ACT: 2nd (No 2) 1991 (ACT) Report—Loss of Consortium and Compensation for Loss of Capacity to do Housework

ALRC 31 The Recognition 12 Jun Crimes and Other Legislation PARTIAL of Aboriginal 1986 Amendment Act 1994 (Cth) Customary Laws [Investigation Procedures]; Evidence Act 1995 (Cth) [Interpreters and interrogation]; Safety and Rehabilitation and Compensation Act 1988 (Cth) s 4 [Customary marriage recognition]; Adoption legislation in NSW, NT, SA, Vic; De Facto Relationships Act 1984 (NSW); Administration and Probate Act 1979 (NT); Family Provision Act 1970 (NT); Child Placement Principle–see child welfare laws in each state and territory; Native Title Act 1993 (Cth) [fishing, hunting, and gathering rights]

ALRC 30 Domestic Violence 20 Mar Domestic Violence Amendment SUBSTANTIAL 1986 Act 1991 (ACT); Domestic Violence Act 1986 (ACT) Appendix G

ALRC 28 Community Law 29 Nov Law Reform (Miscellaneous SUBSTANTIAL l Reform for the 1985 Provisions) (Amendment) Act ACT: 1st Report— 1991 (ACT); Compensation Contributory (Fatal Injuries) (Amendment) Act

Negligence in 1991 (ACT) Fatal Accident Cases and Breach of Statutory Duty Cases and Funeral Costs in Fatal Accident Cases Annual Report 2008—09 Report Annual 145

08-09 Annual Report.indd Sec1:145 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 27 Standing in Public 29 Nov See ALRC 78 NIL Interest Litigation 1985

ALRC 26 Evidence 21 Aug See ALRC 38 SUBSTANTIAL (Interim) 1985

ALRC 24 Foreign State 10 Oct Foreign States Immunities Act SUBSTANTIAL Immunity 1984 1985 (Cth)

ALRC 22 Privacy 14 Dec Privacy Act 1988 (Cth); SUBSTANTIAL 1983 Telecommunications (Interception) Amendment Act 1987 (Cth)

ALRC 20 Insurance 16 Dec Insurance Contracts Act 1984 SUBSTANTIAL Contracts 1982 (Cth)

ALRC 18 Child Welfare 12 Nov Children’s Services Act 1988 SUBSTANTIAL 1981 (ACT)

ALRC 16 Insurance Agents 11 Sep Insurance (Agents and Brokers) SUBSTANTIAL and Brokers 1980 Act 1984 (Cth)

ALRC 15 Sentencing of 21 May Crimes Amendment Act 1982 PARTIAL (Interim) Federal Offenders 1980 (Cth); Crimes Compensation Act 1982 (NT); Criminal Injuries Compensation Act 1983 (ACT); Crimes Legislation Amendment Act (No 2) 1989 (Cth)

ALRC 14 Lands 22 Apr Lands Acquisition Act 1989 SUBSTANTIAL Acquisition and 1980 (Cth); Lands Acquisition Act Compensation 1978 (NT)

ALRC 12 Privacy and the 15 Nov Census and Statistics SUBSTANTIAL Census 1979 Amendment Act 1981 (Cth)

ALRC 11 Unfair Publication: 7 Jun NIL Defamation and 1979 Privacy

ALRC 9 Complaints 9 Jun See ALRC 1 SUBSTANTIAL against Police 1978 (Supplementary Report)

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08-09 Annual Report.indd Sec1:146 14/09/2009 2:51:29 PM Tabling Degree of Report Title Implementation brief date implementation ALRC 7 Human Tissue 21 Sep Transplantation and Anatomy Act SUBSTANTIAL Transplants 1977 1978 (ACT) [legislation based on the report has been enacted in all states and territories]

ALRC 6 Insolvency: The 4 Nov Bankruptcy Amendment SUBSTANTIAL Regular Payment 1977 Act 1996 (Cth); Bankruptcy of Debts Amendment Act 1980 (Cth)

ALRC 4 Alcohol, Drugs 23 Sep Motor Traffic (Alcohol and SUBSTANTIAL and Driving 1976 Drugs) Act 1977 (ACT)

ALRC 2 Criminal 8 Nov Defence Force (Discipline) SUBSTANTIAL Investigation 1975 Act 1984 (Cth); Crimes (Investigation of Commonwealth Offences) Act 1991 (Cth); Crimes Amendment (Forensic Procedures) Act 1998 (Cth). See also Police Administration Act 1978 (NT)

ALRC 1 Complaints 7 Aug Complaints (Australian Federal SUBSTANTIAL against Police 1975 Police) Act 1981 (Cth). See also Police (Allegations of Misconduct) Act 1977 (NSW); Police Administration Act 1979 (NT) Appendix G

Annual Report 2008—09 Report Annual 147

08-09 Annual Report.indd Sec1:147 14/09/2009 2:51:29 PM Appendix H

Citations of ALRC reports in major court decisions

For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) Giller v Procopets (2008) 40 Fam LR 378 (Supreme Court of Victoria—Court of Appeal)

Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC 107, 2009) AWB Limited v Australian Securities and Investments Commission [2008] FCA 1877 (Federal Court of Australia)

Uniform Evidence Law (ALRC 102, 2005) Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 (Federal Court of Australia) Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157 (Full Court of the Federal Court of Australia) Thomas v State of New South Wales [2008] NSWCA 316 (Supreme Court of NSW—Court of Appeal)

Managing Justice: A Review of Federal Civil Justice System (ALRC 89, 2000) R v Fisher [2009] VSCA 100 (Supreme Court of Victoria—Court of Appeal)

Open Government: A Review of the Federal Freedom of Information Act 1982 (ALRC 77, 1995) Fisse and Department of Treasury (2008) 101 ALD 424 (Administrative Appeals Tribunal)

Designs (ALRC 74, 1995) Deckers Outdoor Corporation Inc v Farley (No 2) [2009] FCA 256 (Federal Court of Australia) LED Technologies Pty Ltd v Elecspess Pty Ltd (2008) 80 IPR 85 (Federal Court of Australia) Review Australia Pty Ltd v New Cover Group Pty Ltd (2008) 79 IPR 236 (Federal Court of Australia) Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (2008) 173 FCR 450 (Federal Court of Australia) Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 (Full Court of the Federal Court of Australia)

Equality Before the Law: Justice for Women (ALRC 69, 1994) Giller v Procopets (2008) 40 Fam LR 378 (Supreme Court of Victoria—Court of Appeal) 148

08-09 Annual Report.indd Sec1:148 14/09/2009 2:51:29 PM Collective Investments: Other People’s Money (ALRC 65, 1993) Brookfield Multiplex Limited v International Litigation Funding Partners Pty Ltd (No 3) (2009) 256 ALR 427 (Federal Court of Australia)

Film and Literature Censorship Procedure (ALRC 55, 1991) Vokalek v Commonwealth of Australia (2008) 101 SASR 588 (Supreme Court of South Australia)

Criminal Admiralty Jurisdiction and Prize (ALRC 48, 1990) R v Tang (2008) 249 ALR 200 (High Court of Australia)

General Insolvency Inquiry (ALRC 45, 1988) Flynn v Theobald [2008] WASC 263 (Supreme Court of Western Australia) The Bell Group Ltd (in liquidation) v Westpac Banking Corporation (No 9) (2008) 70 ACSR 1 (Supreme Court of Western Australia)

Sentencing (ALRC 44, 1988) Kelly v Saadat-Talab (2008) 251 ALR 398 (Supreme Court of NSW—Court of Appeal) Jones v Police [2009] SASC 137 (Supreme Court of South Australia)

Evidence (ALRC 38, 1987) Repatriation Commission v Goulding (2008) 173 FCR 546 (Federal Court of Australia) Re Anders & Anders (No 2) (2008) 220 FLR 318 (Federal Magistrates Court of Australia, Family Law) Thomas v State of New South Wales [2008] NSWCA 316 (Supreme Court of NSW—Court of Appeal) Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (Supreme Court of New Zealand)

Contempt (ALRC 35, 1987) Appendix H

Hearne v Street (2008) 235 CLR 125 (High Court of Australia) l Kendling v Kendling [2008] FamCAFC 154 (Full Court of the Family Court of Australia)

Civil Admiralty Jurisdiction (ALRC 33, 1986) Beluga Shipping GmbH & Co v Headway Shipping Ltd (No 2) (2008) 251 ALR 620 (Federal Court of Australia) Rail Equipment Leasing Pty Ltd v CV Scheepvaartonderneming Emmagracht [2008] NSWSC 850 (Supreme Court of NSW) Annual Report 2008—09 Report Annual 149

08-09 Annual Report.indd Sec1:149 14/09/2009 2:51:30 PM Evidence (Interim) (ALRC 26, 1985) Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157 (Full Court of the Federal Court of Australia) Forbes Engineering (Asia) Pty Limited v Forbes (No 4) [2009] FCA 675 (Federal Court of Australia) Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 (Federal Court of Australia) Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 (Federal Court of Australia) R v BDX [2009] VSCA (Supreme Court of Victoria—Court of Appeal) Martin v State of Tasmania [2008] TASSC 66 (Supreme Court of Tasmania) State of Tasmania v Howlett [2008] TASSC 38 (Supreme Court of Tasmania) Spalding v Radio Canberra Pty Ltd (2009) 166 ACTR 14 (Supreme Court of the ACT) R v D (2008) 220 FLR 169 (Supreme Court of the ACT) Bain v The Queen [2009] NZSC 16 (Supreme Court of New Zealand)

Foreign State Immunity (ALRC 24, 1984) Thor Shipping A/S v The Ship “Al Duhail” (2008) 173 FCR 524 (Federal Court of Australia)

Insurance Contracts (ALRC 20, 1982) CGU Insurance Limited v Porthouse (2008) 235 CLR 103 (High Court of Australia) Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pty Ltd (2009) 253 ALR 364 (Supreme Court of Western Australia—Court of Appeal) Martin John Green (in his capacity as liquidator of Arimco Mining Pty Limited (in liquidation)) v CGU Insurance Limited & Ors (2008) 67 ACSR 398 (Supreme Court of NSW)

Insolvency: The Regular Payment of debts (ALRC 6, 1977) Chint Australasia Pty Limited v Cosmoluce Pty Limited [2008] NSWSC 1054 (Supreme Court of NSW)

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Public Presentations and Contributions to Newspapers and Journals

Public Presentations 2008–09

29 Jul 2008 Professor Rosalind Croucher gave a presentation to the Forbes Society, Legal History Discussion Group, An Impetuous Law Reform— Torrens and the Torrens System, in Sydney.

11 Aug 2008 The President delivered a media briefing presentation to 50 media representatives for the launch of For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), in Sydney.

11 Aug 2008 Professor Les McCrimmon delivered a media briefing presentation to 50 media representatives for the launch of For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), in Sydney.

25 Aug 2008 Professor Rosalind Croucher delivered a keynote speech The ALRC’s Report on Client Legal Privilege: Implications for Lawyers in the Public Sector, at the 4th Annual Public Sector In-house Counsel Conference, in Sydney.

26 Aug 2008 Professor Rosalind Croucher gave a speech Carthago Delenda Est! Sir Robert Richard Torrens and his attack on the evils of conveyancing and dependent land titles—a reflection on the occasion of the sesquicentenary of the introduction of his great law-reforming initiative, at the Alex Castles Memorial Legal History Lecture, Flinders University Law School, in Adelaide.

29 Aug 2008 Professor Les McCrimmon gave a presentation Reform of Australian

Privacy Laws—the Potential Impact on Business, to the Australian Appendix I Direct Marketing Association Privacy Breakfast, in Sydney. l

16 Sep 2008 Professor Les McCrimmon delivered a presentation Privacy and the Public Sector: Future Developments, to the NSW Government Solicitors Conference, in Sydney.

7 Oct 2008 Professor Rosalind Croucher gave a speech Law Reform, Capacity and Statutory Wills: How to Get Inside the Testator’s Head, at the Australian College of Legal Medicine Symposium, in Melbourne.

9 Oct 2008 Professor Rosalind Croucher gave a speech To do “As he lists”—the Leitmotif of Liberty in Succession Law, at the Macquarie Law Seminar Series—Limiting Leviathan: Law and Liberty, in Sydney. Annual Report 2008—09 Report Annual 151

08-09 Annual Report.indd Sec1:151 14/09/2009 2:51:30 PM 12 Oct 2008 Professor Les McCrimmon gave a presentation Getting the Balance Right: Privacy and Freedom of Expression, to the Judicial Conference of Australia Colloquium 2008, in Surfers Paradise.

18 Oct 2008 Professor Les McCrimmon gave a speech Reform of the Uniform Evidence Act, for the NSW Young Lawyers Evidence Act Seminar, in Sydney.

31 Oct 2008 Professor Les McCrimmon gave a speech Final Stage of Implementation: ALRC Privacy Report, at the 13th Annual Public Law Weekend, in Canberra.

6 Nov 2008 Professor Rosalind Croucher gave a presentation 150 Years of Torrens—Too Much, Too Soon, Too Little, Too Late?, to the Forbes Society Lecture 2008, in Sydney.

27 Nov 2008 Professor Les McCrimmon delivered a speech Privacy and Business: Challenges and Opportunities, to the Media Communications & Technology Law Conference, in Sydney.

28 Nov 2008 The President delivered an address on Human Genetics: From Research Findings and Public Consultation to Policy and Law Reform, at the Australia-New Zealand Roundtable on Genetics, in Melbourne.

11 Dec 2008 The President delivered a speech Developments in Children’s Law since the Release of ‘Seen and Heard’, at the National Children’s Youth and Law Centre Christmas Party, in Sydney.

13 Dec 2008 Professor Les McCrimmon gave a speech Justice, Law Reform and the Clinical Method, to the 5th Global Alliance for Justice Education (GAJE) Worldwide Conference, in Manila.

3 Feb 2009 Professor Rosalind Croucher gave a presentation Review of Secrecy Laws: Inquiry Snapshot, to the Secrecy Forum Commonwealth Public Servants Union, in Canberra.

20 Feb 2009 Professor Rosalind Croucher gave a speech How Free is Free? Testamentary Freedom and the Battle between ‘Family’ and ‘Property’, to the TC Beirne School of Law Research Seminar Series, in Brisbane.

15 Mar 2009 The President delivered a presentation Regulation or Choice: Direct- to-Consumer DNA Testing and the Public Interest, at the Royal College of Pathologists Australasia (RCPA) XXVth World Congress 2009, in Sydney.

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08-09 Annual Report.indd Sec1:152 14/09/2009 2:51:30 PM 25 Mar 2009 Professor Rosalind Croucher gave a speech Privilege in Perspective— the ALRC’s Report on Client Legal Privilege and Federal Investigations to ethics students of Macquarie Law School, Macquarie University, in Sydney.

3 Apr 2009 The President delivered a presentation The ALRC and the Challenges of National Law Reform at the Legal Studies Association Annual Conference, in Sydney.

8 Apr 2009 The President gave a speech at the launch of the ALRC’s journal, Reform 93: ‘Native Title and the ALRC’s Reconciliation Action Plan 2009’, at Tranby Aboriginal Training College, in Sydney.

18 Apr 2009 Professor Rosalind Croucher gave a welcome and overview speech at the Australasian Property Law Teachers’ Conference 2009, in Sydney.

22 Apr 2009 Professor Rosalind Croucher gave a speech, Quirks and Curios— Light-hearted Reflections on Classic Moments in Succession Law, at the Society of Trust and Estate Practitioners, in Sydney.

5 May 2009 The President was a panellist for the Voiceless Animal Law Lecture Series, at the Law School, University of Sydney, in Sydney.

15 May 2009 Professor Les McCrimmon delivered a presentation Royal Commissions and Other Forms of Public Inquiry at the Australian Institute of Administrative Law, in Canberra.

26 Jun 2009 Professor Les McCrimmon delivered a presentation Reform, Regulation and Risk: the internationalism of legislation and legal policy, at the Bond University 20th Anniversary Symposium, Gold Coast, Queensland.

Contributions to newspapers and journals by ALRC Commissioners and staff 2008–09 Appendix I

c Professor David Weisbrot, President, ‘Comment’, Reform 92, August 2008. l c Michael Evry, ALRC Intern, ‘Public interest balancing act’, Law Institute Journal (Victoria), August 2008.

c Althea Gibson, Legal Officer, ‘The business of privacy: extending the scope of the Privacy Act 1988 (Cth) in the private sector’, Tasmanian Law Letter, September 2008. c Erin Mackay, Legal Officer, ‘Watching Big Brother: accommodating developing technology in a privacy regulatory framework’ Law Institute Journal (Victoria), October 2008. c Kate Connors, Senior Legal Officer, ‘A need to know basis? Introduction of a data

breach notification scheme in Australia’ Privacy Law Bulletin, July/August 2008. 2008—09 Report Annual 153

08-09 Annual Report.indd Sec1:153 14/09/2009 2:51:30 PM c Althea Gibson, Legal Officer, ‘Safe surfing: children, young people and online privacy’, Law Institute Journal (Victoria), December 2008. c Professor Rosalind Croucher, Commissioner, ‘National Phone-in on Commonwealth Secrecy Laws’, PS News, February 2009. c Kathryn McGree, ALRC Intern ‘Talking Secrecy’, Law Institute Journal (Victoria), March 2009. c Professor David Weisbrot, President, ‘Comment’, Reform 93, April 2009. c Professor Les McCrimmon, Commissioner, ‘For Your Information: Australian Privacy Law and Practice’, Reform 93, April 2009. c Isabella Cosenza, Senior Legal Officer, ‘Balancing secrecy and openness: plugging leaks and allowing flows’, Reform 93, April 2009. c Carolyn Adams, Senior Legal Officer, ‘From Star Chamber to Open Government’, Tasmanian Law Letter, April 2009. c Professor Rosalind Croucher, Commissioner, ‘Client Legal Privilege and Federal Investigations—Principled Proposals’ in Attorney and Client—Obligations and Privileges, Amicus Books, 2009

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08-09 Annual Report.indd Sec1:154 14/09/2009 2:51:30 PM Appendix J

Media Releases and Briefing Papers 2008–09

Media Releases

c The deferment of the FOI Inquiry by the Federal Government (‘ALRC’s FOI Inquiry deferred pending Government reforms’, 22 July 2008); c Appointment of ALRC’s part-time Commissioner, Justice Robert French, as Chief Justice to the High Court of Australia (‘ALRC Congratulates Justice French on Appointment as Chief Justice of Australia’, 30 July 2008); c The Australian Law Reform Commission (ALRC) and the National Health and Medical Research Council (NHMRC) debate on the issue of DNA testing online at a free public meeting in Sydney (‘DNA testing online: marketing hype or medical breakthrough?’, 4 August 2008); c New Terms of Reference for the ALRC to review secrecy provisions in federal legislation (‘ALRC to tackle government secrecy laws’, 5 August 2008); c For Your Information: Australian Privacy Law and Practice, (ALRC 108, 2008). (‘Australia must rewrite privacy laws for the Information Age’, 11 August 2008); c Reform 92, ‘Children and Young People (‘ALRC revisits the legal rights of children and young people in Australia’, 1 October 2008); c Issues Paper 34, Review of Secrecy Laws (‘ALRC: do we need secrecy laws in an open society?’ 9 December 2008); c The Federal Government’s positive response to the ALRC’s report Fighting Words: A Review of Sedition Laws in Australia, (ALRC 104, 2006) (‘Government to implement ALRC's Sedition Report’, 23 December 2008); c New Terms of Reference for the ALRC to review the Royal Commissions Act 1902 (Cth) (‘ALRC to consider flexibility, formality and cost of Royal Commissions’, 21 January 2009); Appendix J

c ALRC’s former Chairman, Michael Kirby’s retirement from High Court (‘ALRC l expresses deep gratitude to Justice Michael Kirby for service to law reform’, 3 February 2009);

c ALRC’s National Secrecy Phone-in and blog (‘National Phone-in and blog on Commonwealth Secrecy Laws’, 9 February 2009); c 2009 Kirby Cup Competition (‘Kirby Cup Law Reform Competition—Call for Entries’, 24 March’); c Issues Paper 35, Review of Royal Commissions (‘Cost, formality of Royal Commissions queried in ALRC Review’, 6 April 2009); c Reform 93, ‘Native Title’ (‘New Visions for Native Title and Reconciliation’, 8 April,

2009); 2008—09 Report Annual 155

08-09 Annual Report.indd Sec1:155 14/09/2009 2:51:30 PM c Discussion Paper 74, Review of Secrecy laws (‘ALRC proposals to wind back federal secrecy laws’, 18 June 2009).

Briefing Papers

c ALRC 108—For Your Information: Australian Privacy Law and Practice (11 August 2008): Simplifying and harmonising privacy law and practice Technology-neutral privacy principles should govern rapidly developing ICT New cross-border privacy laws—greater certainty for all Australians Rationalisation and clarification of exemptions to the Privacy Act Improved complaint handling and enforcement Introducing a mandatory data breach notification scheme Reform of the credit reporting system Protecting Health Information in the Digital Age Children, young people and privacy A statutory clause of action for serious invasions of privacy: getting the balance right.

c Review of Secrecy Laws: Discussion Paper 74 (18 June 2009).

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Visitors to the ALRC during 2008–09.

Table 14: Visitors to the ALRC Date Visitor 24 July 2008 The ALRC hosted the first Annual General Meeting for the Australian Academy of Law, 34 Fellows and Ex officio’s members attended. 7 August 2008 The ALRC hosted an all staff training on good writing by Pam Peters, Macquarie University.

11 August 2008 The ALRC hosted an all staff meeting to meet the Hon Robert McClelland MP, Attorney-General of Australia.

11 August 2008 The ALRC hosted the launch of the Privacy Final Report For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008), with guest speakers the Hon Robert McClelland MP, Attorney-General of Australia and Senator the Hon John Faulkner, Special Minister for State and Cabinet Secretary. One hundred guests attended.

4-5 September 2008 The ALRC hosted an all staff Occupational Health and Safety seminar with Balmain Rehabilitation Services. 8 September 2008 The ALRC hosted the Swedish Parliament—the Riksdag delegation: Ms Inger Rene, Deputy Chairperson; Ms Ewa Finne, Moderate Party; Mr Johan Lofstrand, Social Democratic Party; Ms Yvonne Anderson, Christian Democratic; Mr Anti Avsan, Moderate Party; Mr Egon Frid, Left Party; Mr Ameer Sachet, Social Democratic Party; Mr Lars Tysklind, Liberal Party; Ms Maria Jakobsson, Centre Party; Ms Monica Hall,

Senior Committee Secretary; Mr Bengt Billquist, Committee Appendix K Secretary; and Ms Kamilla Lindstrom, Counsellor, Embassy of Sweden to discuss general law reform issues. l

15 October 2008 The ALRC hosted two teachers and 14 Year 12 students from Dubbo Senior College to discuss the roles and functions for

the ALRC and about how the ALRC could engage with young people more effectively.

30 October 2008 The ALRC hosted the 1st Secrecy Advisory Committee meeting.

18 November 2008 The ALRC hosted a meeting with Mr Phillip Dunkelberger, President & CEO PGP Corporation (USA); Mr Jamie Brown, Sales Manager, PGP Corporation (USA) and Mr Linisei

Mohenoa, Business Development Manager, in Technology 2008—09 Report Annual Distribution Pty Ltd to discuss key questions around strategy for enterprise encryption and data breach notification. 157

08-09 Annual Report.indd Sec1:157 14/09/2009 2:51:30 PM Table 14: Visitors to the ALRC 21 November 2008 The ALRC hosted an all day training program for Dr Rebecca Bradfield, Senior Researcher, Tasmania Law Reform Institute about the roles, functions and processes of the ALRC.

4 December 2008 The ALRC hosted the Full Commission Meeting with part-time Commissioners Justice Susan Kenny and Justice Berna Collier by telephone conference.

4 December 2008 The ALRC hosted the End of Year and Retirement Celebrations for the Hon Justice Michael Kirby AC CMG and 125 guests.

17 December 2008 Professor Rosalind Croucher hosted the Women’s Lawyers Association of New South Wales Policy Law and Media Issues sub-committee meeting. 7 January 2009 The ALRC hosted and presented an overview of the ALRC work and current references for Professor Michael Garrison, Professor Richard Kunkel and 26 students from Opus College of Law, University of St Thomas, Minnesota, USA.

21 January 2009 The ALRC hosted a meeting with Mr Michael Massey, College of Law, University of Denver Sturm; Professor Jill McKeough, Dean; Emeritus Professor David Barker, Former Dean; Susan Carr Gregg Director (Courses); Bronwyn Oliffe Associate Dean (Teaching and Learning), University of Technology Law; and Ms Marissa Chorn and Ms Erin Pynor, ALRC Interns, to discuss the continuing curriculum changes made in Australian law schools, the Managing Justice Report and its references to legal education. 19 March 2009 The ALRC hosted the 2nd Secrecy Advisory Committee meeting. 23 March 2009 The ALRC hosted Commissioners and legal staff training with Westlaw. 25 March 2009 The ALRC held an all day meeting with Senior Research Manager Ms Laura Watts, British Columbia Law Institute (BCLI), to discuss communication strategies, information technology, the current work programs of the BCLI and the ALRC, and opportunities for greater collaboration.

18-20 May 2009 The ALRC held three days of training sessions for Ms Leilani Tuala-Warren, Executive Director from the Samoa Law Reform Commission.

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08-09 Annual Report.indd Sec1:158 14/09/2009 2:51:30 PM Glossary

AAL Australian Academy of Law ACT Australian Capital Territory AC Companion of the Order of Australia Award AGD Attorney-General’s Department ALP Australian Labor party ALRAC Australasian Law Reform Agencies Conference ALRC Australian Law Reform Commission ALRC Act Australian Law Reform Commission Act 1996 (Cth) ALSA Australian Law Students’ Association AM Member of the Order of Australia Award ANAO Australian National Audit Office ASCII American Standard Code for Information Interchange. ASCII is a standard document coding system that can be opened by any computer. ASCII files have no formatting and provide people with a print disability with access to published information via computer AustLII Australian Legal Information Institute AWAs Australian Workplace Agreements AUTC Australian Universities Teaching Committee BEAC Botswana Economic Advisory Council Glossary and Indexes BCLI British Columbia Law Institute CAC Act Commonwealth Authorities and Companies Act 1997 CALRAs Commonwealth Association of Law Reform Agencies Crimes Act Crimes Act 1914 (Cth) DP Discussion Paper published by the ALRC as part of their inquiry process. A Discussion Paper usually contains draft proposals and seeks feedback from communities and stakeholders EEO Equal Employment Opportunity EEO Policy ALRC’s Equal Employment Opportunity Policy

EMS Environmental Management System EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cth) ESD Ecologically Sustainable Development FOI Freedom of Information FOI Act Freedom of Information Act 1982 (Cth) GAJE Global Alliance for Justice Education GST Goods and Services Tax Annual Report 2008—09 Report Annual 159

08-09 Annual Report.indd Sec1:159 14/09/2009 2:51:30 PM H1N1 Human Swine Influenza outbreak in 2009 pandemic HSMAS Health and Safety Management Arrangements HTML HyperText Markup Language. The coded format used to create documents on the World Wide Web and control how web pages appear IP Issue Papers released by the ALRC as part of the inquiry process. Issues Papers assist the research phase of an inquiry IP Australia Intellectual Property Australia Kirby Cup The Kirby Cup Law Reform Competition is designed to encourage law students to participate in the process of law reform and is held each year as part of the annual ALSA conference. KPI Key Performance Indicators OAM Medal of the Order of Australia Award OECD Organisation for Economic Cooperation and Development OH&S Occupational health and safety OH&SCC Occupational Health and Safety Consultative Committee MIA Act Marine Insurance Act 1909 (Cth) MP Member of Parliament NAA National Archives of Australia NHMRC National Health and Medical Research Council NGO Non-governmental Organisation PAES Portfolio Additional Estimates Statements PBS Portfolio Budget Statement PDF Portable Document Format. PDF documents require (free) Adobe Acrobat Reader software. Some PDF documents create access difficulties for some users PNG Papua New Guinea Privacy Act Privacy Act 1988 (Cth) RAP Reconciliation Action Plan RCPA Royal College of Pathologists Australia Reform Journal of the ALRC, published twice a year, in summer and winter Royal The ALRC’s current review of the operation and provisions of the Royal Commissions Commissions Act 1902 (Cth) and related issues. Inquiry RTF Rich Text Format. RTF files are ASCII files with additional commands for formatting. Secrecy The ALRC’s current review of relevant laws and practices that relate Inquiry to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality. 160 SES Senior Executive Service

08-09 Annual Report.indd Sec1:160 14/09/2009 2:51:30 PM Index of Charts, Graphs, Figures and Tables

Charts

Chart 1: Implementation Status of ALRC Reports as at 30 June 2009 30

Graphs

Graph 1: Number of website hits 40 Graph 2: Number of distinct hosts served 40

Figures

Figure 1: Number and Location of Consultations 2008–09 21 Figure 2: ALRC Interns 2008–09 116

Tables

Table 1: Submissions made by the ALRC 27 Table 2: Key Achievements for Output 1.1 2008–09 28 Table 3: Media Articles 2008–09 37 Table 4: Distribution of Consultation Papers 2008–09 38 Table 5: Number of Submissions received 2008–09 38 Table 6: Key Achievements for Output 1.2 2008–09 39 Table 7: Top Ten ALRC reports accesses online 2008–09 41 Table 8: Members 2008–09 47 Table 9: Divisions of the ALRC 2008–09 51 Table 10: Attendance at Board of Management and Full Commission 52 Meetings in 2008–09 Table 11: Staffing Profile, as at 30 June 2009 60 Table 12: ALRC Staff 2008–09 61 Table 13: Commonwealth Disability Strategy 73 Table 14: Visitors to the ALRC 157 Index of Charts, Graphs, Figures and Tables Index of Charts, Graphs, Figures

Annual Report 2008—09 Report Annual 161

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The ALRC Annual Report is prepared in accordance with the requirements for Annual Reports approved by the Joint Committee of Public Accounts and Audit under subsections 63(2) and 70(2) of the Public Service Act 1999 (Cth).

Description Requirement Page Ref Letter of transmittal Mandatory iii Table of contents Mandatory 1 Alphabetical index Mandatory 166 Compliance index Mandatory 162 Glossary Mandatory 159 Contact officer(s) Mandatory ii Internet home page address and Mandatory ii Internet address for report Overview Review by departmental secretary— Mandatory 2 Overview of President Summary of significant issues and Suggested 12 developments Overview of department’s Suggested 14 performance and financial results Outlook for following year Suggested 43 Significant issues and Portfolio Not Applicable developments— portfolio departments— suggested Overview description Mandatory 11 Role and functions Mandatory 11 Organisational structure Mandatory 10 Outcome and output structure Mandatory 14 Where outcome and output structures Mandatory No difference differ from PBS format, details of variation and reasons for change Portfolio structure Portfolio Not Applicable departments— mandatory Report on Review of performance during Mandatory 15 Performance the year in relation to outputs and contribution to outcomes Actual performance in relation to Mandatory 28 performance targets set out in PBS/ PAES 162

08-09 Annual Report.indd Sec1:162 14/09/2009 2:51:30 PM Description Requirement Page Ref Performance of purchaser/ provider If applicable, Not applicable arrangements mandatory Where performance targets differ Mandatory No difference from the PBS/ PAES, details of both former and new targets, and reasons for the change Narrative discussion and analysis of Mandatory 28 performance Trend information Suggested Not applicable Factors, events or trends influencing Suggested Not applicable departmental performance Significant changes in nature of Suggested None principal functions/ services anticipated Performance against service If applicable, No service charter customer service standards, mandatory charter complaints data, and the department’s response to complaints Social justice and equity impacts Suggested 54 Discussion and analysis of the Mandatory 69 department’s financial performance Discussion of any significant changes Suggested No significant from the prior year or from budget. changes Agency resource statement and Mandatory 128 summary resource tables by outcomes Developments since the end of the If applicable, Nothing to financial year that have affected mandatory report or may significantly affect the department’s operations or financial results in future

Corporate Statement of the main corporate Mandatory 46 Compliance Index

Governance governance practices in place l

Names of the senior executive and Suggested 47 their responsibilities Senior management committees and Suggested 51 their roles Corporate and operational planning Suggested 58 and associated performance reporting and review Annual Report 2008—09 Report Annual 163

08-09 Annual Report.indd Sec1:163 14/09/2009 2:51:30 PM Description Requirement Page Ref Approach adopted to identifying Suggested 55–57 areas of significant financial or operational risk and arrangements in place to manage risks Agency heads are required to certify Mandatory 55 that their agency complies with the Commonwealth Fraud Control Guidelines. Policy and practices on the Suggested 54 establishment and maintenance of appropriate ethical standards How nature and amount of Suggested — remuneration for SES officers is determined External Scrutiny Significant developments in external Mandatory No scrutiny developments Judicial decisions and decisions of Mandatory No decisions administrative tribunals Reports by the Auditor-General, Mandatory No reports a Parliamentary Committee or the Commonwealth Ombudsman Management Assessment of effectiveness in Mandatory 59 of Human managing and developing human Resources resources to achieve departmental objectives Workforce planning, staff turnover Suggested — and retention Impact and features of collective Suggested 62 agreements, determinations, common law contracts and AWAs Training and development undertaken Suggested 63 and its impact Occupational health and safety Suggested 65 performance Productivity gains Suggested 62 Statistics on staffing Mandatory 59–60 Collective agreements, Mandatory 62 determinations, common law contracts and AWAs Performance pay Mandatory 62 164

08-09 Annual Report.indd Sec1:164 14/09/2009 2:51:30 PM Description Requirement Page Ref Assets Assessment of effectiveness of If applicable, Not applicable management assets management mandatory Purchasing Assessment of purchasing against Mandatory No purchasing core policies and principles to report Consultants The number of new consultancy Mandatory 68 services contracts let during the year; the total actual expenditure on all new consultancy contracts let during the year (inclusive of GST); the number of ongoing consultancy contracts that were active in the reporting year; and the total actual expenditure in the reporting year on the ongoing consultancy contracts (inclusive of GST). Australian Absence of provisions in contracts Mandatory None to report National Audit allowing access by the Auditor- Office Access General Clauses Exempt Contracts exempt from the AusTender Mandatory 67–68 contracts Commonwealth Report on performance in Mandatory 73 Disability implementing the Commonwealth Strategy Disability Strategy Financial Financial Statements Mandatory 75 Statements Other Occupational health and safety Mandatory 65 Information (section 74 of the Occupational Health and Safety Act 1991 (Cth)) Freedom of Information (subsection Mandatory 72 8(1) of the Freedom of Information Act 1982 (Cth)) Compliance Index

Advertising and Market Research Mandatory 68 l (Section 311A of the Commonwealth Electoral Act 1918 (Cth)) Ecologically sustainable development Mandatory 70 and environmental performance (Section 516A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth))

Other Grant programs Mandatory Not applicable 2008—09 Report Annual Correction of material errors in If applicable, None to report previous annual report mandatory 165

08-09 Annual Report.indd Sec1:165 14/09/2009 2:51:30 PM Alphabetical Index E Ecologically sustainable development, 70 Employment conditions, 62 Environmental Management System, 70–71 A Equal employment opportunity, 63–64 Advisory Committees, 126–127 Ethics, 54–55 ALRC Act, 11, 45, 46, 51, 57, 59, 159 External scrutiny and controls, 59 Attorney-General, 11, 12, 20, 29, 33, 42, 46, 107, 124, 125, 130, 157 F Attorney-General’s Department (AGD), 55 Family Violence Inquiry, 9, 13 Audit Committee, 45, 48, 52, 55, 56 Financial performance summary, 69 Audit Report, 76–77 Financial statements, 75–103 Australasian Law Reform Agencies Conference Fraud control, 55–57 (ALRAC), 8, 108 Freedom of information statement, 72–73 Australian Academy of Law (AAL), 12, 42, 50, French, Justice Robert, 47, 49, 50 117 Full Commission meetings, 49, 52 Australian Law Students Association (ALSA) see Functions , 11 also Kirby Cup Law Reform Competition, 116

B G Glossary, 159–160 Board of Management, 45, 51–53, 55, 57, 70 Botswana Law Reform Agency, 110–113 British Columbia Law Institute, 109 H Highlights , 12–13 C Home page see Website Human Resource Management, 59 CAC Act, 45–46, 52–53, 85, 90, 101, 128 Certified Agreement see also Collective Agreement, 65 I Collective Agreement, 43, 55, 59, 62, 63, 64 Implementation of reports, 28, 29–34, 130–147 Collier, Justice Berna, 47, 49, 51, 52, 98 Indemnities and insurance, 57–58 Commonwealth Association of Law Reform Indigenous Advisory Committee, 7, 106, 127 Agencies (CALRAs), 120 Internship program, 114–116 Compliance Index, 162 Conflict of Interest, 57 Consultancies, 68 J Consultation, 6, 7, 14, 15, 16, 19, 20, 21, 28, Journal and newspaper articles, 42, 151–154 35, 37, 38 Judicial & tribunal decisions, 59 Consultation documents, 5, 14, 15, 25, 28, 29, 37, 72, 129 Contributions to external inquiries, 26 K Corporate Plan, 58, 119–120 Kenny, Justice Susan, 22, 47, 49, 51, 52, 98 Croucher, Prof Rosalind, 35–36, 47–48, 51–52, Kirby Cup Law Reform Competition, 116 57, 98, 108, 117, 151–154 Cultural appreciation, 7, 107 M D McCrimmon, Prof Les, 35–36, 43, 47–48, 51–52, 57, 59, 98, 111–113, 151–154 Disability strategy Media, 26, 28, 36–37, 155–156 Divisions of the ALRC Members, 46–49 Michael Kirby Library, 66–67 166

08-09 Annual Report.indd Sec1:166 14/09/2009 2:51:30 PM O W Occupational health and safety, 65–66 Website, 25–26, 39–41 Ombudsman, see External scrutiny Weisbrot, Prof David, iii, 2–9, 35–36, 43, 47–48, Operation Sunlight, iv, 15, 58 51–52, 57, 59, 98, 111–113, 151–154 Organisational structure, 10 Outcome, iv, 14, 15, 101–103, 119, 128–129 Outputs, 11, 15–43, 102, 129

Parliamentary inquiries see External scrutiny Policy Manual, 53, 123 Privacy Inquiry, ALRC 108, 15, 20–21, 26, 130 Publications, 12–13, 38, 41, 69 Public debate, 29–38 Purchasing Policy, 67

R Reconciliation Action Plan, 106–107 Reform (ALRC journal), 12–13, 22–25, 39, 42, 107 Reporting dates, 12, 28, 69 Risk management, 55–57 Royal Commissions, 3, 5–6, 12–13, 15, 18–20, 28, 37–38, 46, 51, 61, 105, 125–127, 155

S Samoa Law Reform Commission, 110 Secrecy Inquiry, 3, 12–13, 15–17, 21, 28, 37–38, 46, 51, 61, 105, 124–126, 155–156 Senate Estimates Committee, 59 Speeches, 35–36, 42, 151–153 Staff, 59–66, 129 Stakeholders, 15, 28, 37 Statement of Governance, 46–58 Submissions to ALRC, 17, 19, 20, 38

T Talk to Us, 17, 26, 105 Terms of reference, 124–125 Transmittal letter, iii

U Uhrig Review, 43

V Vision statement, iv, 58, 119 Visitors to the ALRC , 39, 42–43, 157–158, Annual Report 2008—09 Report Annual 167

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