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Australian Law Reform Commission Annual Report 2013—14Australian ALRC www.alrc.gov.au 2013–14 121 R E P O R T 125 ALRC 125 ALRC Street Address: Level 40, 19 Martin Postal Address: Place GPO Box 3708 Te l (02) 8238 6333 Sydney NSW 2000 Sydney NSW 2001 Fax (02) 8238 6363 ANNUAL REPORT ALRC 2013–14 R E P O R T 125 ANNUAL REPORT 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] Web: www.alrc.gov.au This report is also online at: www.alrc.gov.au/about/annual-reports ISBN 978-0-9924069-5-0 © Commonwealth of Australia 2014 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. Requests for further authorisation should be directed to the Australian Law Reform Commission. Printed by Ligare Pty Ltd ii Annual Report 2013–14 Professor Rosalind Croucher President Senator the Hon George Brandis QC Attorney-General Parliament House Canberra ACT 2600 30 September 2014 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 2013 to 30 June 2014. This report has been prepared in accordance with Part 8, s 57 of the Financial Management and Accountability Act 1997 (Cth) and ss 63(2) and 70(2) of the Public Service Act 1999 (Cth). Yours sincerely Australian Law Reform Commission Level 40, MLC Centre, 19 Martin Place Tel (02) 8238 6333 Sydney NSW 2000 Fax (02) 8238 6363 Postal address: GPO Box 3708 Web www.alrc.gov.au Sydney NSW 2001 Email [email protected] iii 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. iv Annual Report 2013–14 Contents President’s overview 3 Corporate governance 37 Ministerial powers 37 Corporate overview Members of the Commission 37 Snapshot of 2013–14 10 Remuneration 42 Appointments and cessations 10 Policies 42 Significant events 10 Corporate planning 43 Publications 11 Financial management and audit 43 Performance 12 Fraud control and risk management 44 ALRC organisational structure 13 Enterprise risk management 44 Role and functions of the ALRC 14 Ethics 45 Report on performance Conflict of interest 45 Indemnity 46 Outcome and program structure 16 Significant developments 2014–15 46 Outcome report 17 External scrutiny and controls 47 Program 1: Conducting inquiries into aspects of Australian laws and related Parliamentary scrutiny 47 processes for the purposes of law reform 18 Court and tribunal decisions 47 Inquiries 19 Commonwealth Ombudsman 47 Consultation meetings 23 Human resource management 47 Diversity consultation strategy 24 Staffing 47 Consultation papers and reports 24 Staff retention and turnover 48 Program 1: Key performance indicators 26 Employment conditions 49 Implementation of reports 26 Performance rewards and bonuses 50 Court citations 28 Staff development 50 Submissions 28 Study leave 52 ALRC website 29 Workplace diversity 52 Presentations and speaking Work health and safety 53 engagements 30 Summary of financial performance 54 Media mentions 30 Financial outcomes 54 Additional performance indicators 32 Other reporting requirements 54 Participation in external inquiries 32 Procurement and purchasing 54 Mentions in Parliament 32 Legal services expenditure 55 Online communications 33 Consultancies 55 Challenges for 2014–15 34 Advertising and market research 55 Management and accountability Environmental performance 56 Disability strategy 57 Corporate governance framework 36 Freedom of information 58 1 Financial statements 59 Special features Law reform process 114 Diversity 117 Agency Multicultural Plan (AMP) 117 Reconcililation Action Plan update 118 ALRC internship program 120 International outreach 123 Professional development 123 Australasian Law Reform Agencies Conference (ALRAC) 123 Appendices A. Corporate Plan 2013–2015 126 B. Key supporting policies and documents 129 C. Terms of Reference 2013–14 131 D. Advisory committee members and consultants 2013–14 143 E. Agency resource statement and resources for outcomes 2013–14 146 F. Implementation activity 2013–14 148 G. Implementation status of ALRC reports 2013–14 149 H Citations of ALRC reports in major court decisions 2013–14 163 I. Presentations and articles written for external publications 2013–14 169 J. ALRC newsroom 2013–14 173 K. Submissions made to external inquiries 2013–14 191 L: List of ALRC reports 192 M: ALRC Multicultural Plan report 2013–14 196 N: Reconciliation Action Plan 2012–14 report 207 Glossary and indexes Glossary 216 Compliance Index 219 Index 225 2 Annual Report 2013–14 President’s overview 3 ALRC President, Professor Rosalind Croucher 4 Annual Report 2013–14 It is with great pleasure that I present the ALRC’s Annual Report for 2013–14, my fifth as ALRC President. The ALRC has continued to be a highly productive and responsive law reform agency, working on five inquiries in areas of key concern to the community at this time: Copyright, Disability, Native Title, Privacy and Traditional Rights, Freedoms and Privileges, or what we have called the ‘Freedoms Inquiry’. The importance of an independent law reform agency that can investigate an area of law free from political expectation or the values of particular interests, that is able to start a process with questions not answers, and that draws on the wealth and diversity of experience and knowledge in the community to help inform the reform process, cannot be overestimated. While law reform happens in many government departments, in other agencies and in the courts themselves, it is in the specialist law reform expertise of the ALRC and its ability to provide high level legal policy advice at arm’s length from government, that our value truly lies. The types of law reform reviews that the ALRC is uniquely experienced to undertake include those where there are complex legal issues involved and a need to be—and to be seen to be—completely independent from government, industry and special interests. These reviews involve a need to consult widely with diverse and often opposing stakeholders, and to consider their opinions and interests carefully, so that the Government is provided with independent and frank advice. The subject matter of our current inquiries provides excellent examples of this. Looking at how to enhance the equality of people with disability in Commonwealth laws while the NDIS is being implemented, considering whether the promise of Native Title has been realised 20 years after the landmark Mabo High Court decision, or addressing serious invasions of privacy in the age of the internet are all highly complex and challenging areas of great concern to the community, that require careful and in-depth consideration. Through its widespread and thorough consultation strategies, the ALRC is able to build consensus and understanding of its proposals within the community and this assists the government in turn to implement various recommendations, even in a context where change may be challenging. The community’s faith and trust in the independence of the legal system is bolstered by this independence and it is this, together with the high regard in which the ALRC’s work is held, that has meant we have again been able to leverage relationships with key stakeholders who have continued to contribute to our various inquiries in a most generous manner. I would like to take this opportunity formally to acknowledge and thank the many people from the legal profession, academia, industry, the non-government sector, government departments and agencies and from the community—our stakeholders—for their contribution to our inquiries, through consultations, through our Advisory Committees and Expert Panels and by taking the time to give us their submissions. The quality of the work of the ALRC is a testament to this contribution and helps to ensure that our proposals are sensible and achievable, and that they strike the right balance between competing interests and perspectives to deliver realisable reform to the Australian community. At the end of November we delivered our Report for the Copyright Inquiry, Copyright and the Digital Economy (ALRC Report 122, 2014). This inquiry was one in which our stakeholders were extremely divided, and I want to thank Professor Jill McKeough, Commissioner in charge of the Inquiry, for her dedication to this task and congratulate her on this highly complex, comprehensive and rigorous Report. Reforming copyright law posed a number of important challenges. While the law must be relevant to a complex and changing digital environment, it must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should also be President's overview 5 flexible and not inhibit innovation. Reforms must also not lose sight of the fundamental objectives of copyright law—to stimulate creation and learning by increasing the incentives to create and distribute copyright material. In recommending the introduction of fair use, the ALRC presented a more flexible and adaptive copyright framework. The introduction of fair use would mean Australian copyright law could be applied to new technologies and new commercial and consumer practices, without constant recourse to legislative change. Fair use would promote innovation and enable a market-based response to the demands of the digital age while also enhancing access to cultural material, without undermining incentives to create. The ALRC undertook widespread consultation in this inquiry, conducting 109 face to face consultations and receiving 1,009 public submissions.