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Annual Report 2006-07 Part 2 - Performance Outcomes 1

5. Outcome 1: An equitable and accessible system of federal civil justice
   • Output 1.1—Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law, and administration of related government programs
   • Output 1.2—Support for the Attorney-General as First Law Officer, advice on constitutional policy, and promotion of Australian legal services internationally
   • Output 1.3—Legal services and policy advice on information law and human rights
   • Output 1.4—Legal services and policy advice on international law
   • Output 1.5—Drafting of legislative and other instruments, maintenance of the Federal Register of Legislative Instruments, publication of legislative materials and provision of related legal services
   • Output 1.6—Legal services and policy advice on native title
   • Output 1.7—Legal services and policy advice on Indigenous law and justice and legal assistance, and the administration of related government programs

Reporting basis and approach

Performance reporting in this annual report is based on the outcomes and outputs structure framework and performance information contained in the 2006–07 Portfolio Budget Statements (PBS) and 2006–07 Portfolio Additional Estimates Statements (PAES).

The Department’s annual report has a dual role: it is a key document that is part of the Department’s accountability to Parliament and it is an informative record of our activities during the year. In this report we aim for a balance between an assessment of our progress towards achieving our outcomes and a description of the diverse activities undertaken by the Attorney-General’s Department.

In 2006 the Department undertook a review of its performance reporting framework. The outcome of this review led to a more robust framework through the development of new PBS performance indicators. These indicators form the basis of the performance reports for each output and better describe the key activities of each output.

Each output has a set of common performance indicators as well as their own specific performance indicators. The common indicators relate to parliamentary workload and the numbers of advice provided to stakeholder agencies. This new framework of performance indicators means that performance reporting in future years can be examined in context, providing meaningful comparison with the performance of previous years.

Performance report structure

At outcome level, each performance report contains:

• an overview of activities that contributed to that outcome
• a resource summary table
• a report on administered items, and
• separate reports on each of the departmental outputs contributing to the relevant outcome.

At output level, each performance report contains:

• a performance overview of how the output achieved its stated objective (and so contributed to achieving the related outcome in 2006–07)
• results of any evaluations or reviews
• purchaser–provider arrangements, where relevant
• a statement identifying contextual challenges or problems affecting progress
• an outlook statement highlighting activities or goals for the next financial year, and
• reports against the performance indicators in tabular form associated with the output as stated in the PBS.

Outcome 1

An equitable and accessible system of federal civil justice

Overview

In order to achieve Outcome 1, the Attorney-General’s Department provides a diverse range of legal services and policy advice.

The Department’s responsibilities cover courts and tribunals, alternative dispute resolution, administrative law, bankruptcy, classification, constitutional policy, human rights, evidence and procedure, personal property securities law reform, family law and related services for separated families, legal assistance, international law, information law, Indigenous justice and native title.

It provides specialist support for the Attorney-General as First Law Officer, promotes Australian legal services internationally, and drafts and publishes legislative materials.

In working to achieve this outcome, the Department is also responsible for administering payments for the provision of legal aid, Indigenous law and justice programs, community legal services, financial assistance towards legal costs and related expenses, and expenditure under the Native Title Act 1993.

The Department works in cooperation and consultation with many other organisations. These include government agencies (Commonwealth, State and Territory), advisory bodies, task forces, professional associations and community interest groups. It must also be flexible and able to adapt its operations to respond to international events or trends.

During 2006–07, we made significant and substantial progress towards achieving an equitable and accessible system of federal civil justice, with many of our contributions receiving positive comments from the Attorney-General and a variety of stakeholders. The performance reports for each output contributing to Outcome 1, presented later in this section, expand on these achievements.

Resource summary

* Full-year budget, including additional estimates.

* Full-year budget, including additional estimates.

Our People

Achieving a just and secure society

Back row, from left: Kathleen Falko, Ingrid Nemeth, Samantha Patterson, Ruvani Panagoda, Jing-ting Chan;
centre: Fung Chan, Susan Davis; front: Matt Minogue, International Family Law Branch.

A nationally consistent and strategic approach is being taken in the development of intercountry adoption programs by the International Family Law Branch as it assumes a greater role in the process, both here in Australia and overseas. The Branch took on new responsibilities with the implementation of the recommendations of the parliamentary report Overseas Adoption in Australia. This has included taking over responsibility for the management of existing adoption agreements from the States and Territories.

Matt Minogue, Assistant Secretary of the Branch, explained that successful intercountry adoption programs are underpinned by strong relationships with officials in countries that have children in need of families.

‘We have actively sought to build these relationships, both in Australia and overseas. In particular, we have met with delegations visiting Australia from China, India, Vietnam, Cambodia, Thailand and Korea. These meetings strengthen existing ties between our countries and affirm Australia’s ongoing commitment to intercountry adoption as one important way of meeting the best interests of children who need a family. Another good example was a visit to Ethiopia made with the Queensland Department of Child Safety, to discuss the operation of the adoption program.’

Principal Legal Officer Kathleen Falko, who participated in the visit to Ethiopia, outlined the practical advantages of the visit. ‘

Australia has had a bilateral agreement with Ethiopia since 1994. We had the opportunity to see first hand how the program is managed. This included visiting local orphanages and Koala House —the Australian transit facility for children. It also brought home to us the challenges facing the local husband and wife team, Ato Lakew Gebeyehu and Woz Misrak Getahun, who act as Australia’s representatives under the program.’

The African visit also included meetings with adoption officials in Nairobi. Australia does not have an adoption program with Kenya so these meetings focused on the intercountry adoption framework there and the Australian structure.

Exploring new intercountry adoption opportunities also took the Branch's officers to Vietnam. This gave them the chance to discuss safeguards necessary for any potential intercountry adoption program, and also to present Australia as a country with parents available to meet the needs of Vietnamese children.

The Branch will continue to pursue opportunities to build and strengthen relationships as part of Australia's activities to enhance opportunities for Australian families to adopt children from overseas.

Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

Summary

Continuing the implementation of reforms to the family law system, a major focus of the Civil Justice Division in 2006–07 was the introduction of compulsory family dispute resolution and the further roll-out of new Family Relationship Centres and other services. In this, it worked closely with the Department of Families, Community Services and Indigenous Affairs (FaCSIA), the Child Support Agency (CSA) and Centrelink. The International Family Law Branch was established to implement the Government’s new responsibilities in relation to intercountry adoption. We continued to work effectively with federal courts, tribunals and other stakeholders to achieve an equitable and accessible federal civil justice system.

Major achievements

For families

Family relationship services

The Division successfully completed the second year of a three-year program of reforms to the family law system. As planned, the first 15 new Family Relationship Centres opened in July 2006 and have been well received by the public. The selection process for 25 more centres was completed in the first half of 2006–07, ready for them to open on schedule on 2 July 2007. Seven new Children’s Contact Services and four Parenting Orders Program services also commenced in 2006, with the selection process for nine more Children’s Contact Services and eight more Parenting Orders Program services completed, as planned. By streamlining the selection process, we were able to provide the Attorney-General with earlier advice, enabling him to make earlier announcements than in the previous year, thus allowing providers more time to set up their services.

In July 2006, we also launched the Family Relationship Advice Line and Family Relationships Online to support the family law reforms.

Compulsory dispute resolution

A major focus of our work in 2006–07 was preparing for the introduction of the requirement from 1 July 2007 that parents wishing to take a parenting dispute to court must first try to resolve it with the help of a registered family dispute practitioner (such as a mediator). We developed an accreditation and registration process for family dispute resolution practitioners; established a web-based register of family dispute resolution providers; introduced amendments to the Family Law Regulations 1984; developed information products; consulted with the courts, service providers and stakeholders; and undertook national program of workshops and information sessions.

Connected government on family law reforms

The Division worked closely with FaCSIA to introduce new services in the family law system and to develop and improve existing services for families. This collaboration was supported by a business partnership agreement. We also worked closely with CSA, assisting separated parents through streamlined referral arrangements between the CSA and service providers. As part of a cross-government effort, we assisted FaCSIA and CSA in the implementation of the Child Support Scheme Reforms (CSSR).

Intercountry adoption

In 2006–07, the Division addressed community concerns expressed in the House of Representatives’ Standing Committee on Family and Human Services Overseas adoption in Australia report. We worked cooperatively with State and Territory central authorities on the renegotiation of the 1998 Commonwealth–State Agreement on the implementation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. We developed a strategic plan for the management and establishment of Australia’s intercountry adoption programs, agreements and arrangements and consulted nationally on the establishment of a national support group in meetings in early 2007 and invited feedback. We managed the transition of responsibility of Australia’s intercountry adoption programs from State and Territory central authorities to the Department, and established and strengthened relationships with foreign countries in relation to intercountry adoption arrangements. This was achieved through direct contact, including meetings in Australia and overseas, with officials, from South Africa, Korea, Thailand, Nepal, Kenya, Ethiopia, India, and Cambodia.

Marriage celebrants

Improved administration of the Marriage Celebrants Program was identified as a priority for 2006–07. We implemented the Government’s decision to increase the cap on the number of marriage celebrants who may be registered from 10 per cent to 20 per cent of the total number of marriage celebrants registered by the Commonwealth. During the year, 809 new marriage celebrants were registered and 15,629 enquiries responded to.

International child abduction and protection

In accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Division provided assistance to applicants to secure the prompt return of children wrongfully removed to or retained in any country party to the Convention. In 2006–07, 80 children were returned to Australia (44 following court orders and 36 voluntarily) and 57 children were returned from Australia to other countries (36 following court orders and 21 voluntarily). We continued to liaise with the Lebanese Government on an agreement that aims to promote cooperation between the two countries in cases involving the protection of the welfare of children. In 2006–07, we also developed procedures for handling possible cases under the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibilities and Measures for the Protection of Children. These include issues arising when children travel and where there are parental responsibility orders and child protection orders made under the Convention.

Asia–Pacific Regional Meeting on the Work of the Hague Conference on Private International Law

In June 2007, the Department and the Permanent Bureau of the Hague Conference on Private International Law jointly hosted an Asia–Pacific conference in Sydney on legal cooperation on service of process, taking of evidence and legalisation of foreign documents and the conventions on the protection and welfare of children, including those on child abduction, child protection and child maintenance and intercountry adoption. The meeting of 120 delegates from 23 countries stimulated interest in the various conventions and promoted international collaboration and membership of the  ague Conference. The meeting aimed to expose countries in the region to the work of the Hague Conference, many of which are not signatories to the Hague conventions and are not members of the Hague Conference.

Overseas maintenance

The Division continued to work closely with the CSA to ensure that child support liabilities and proceedings under the Family Law Act 1975 were pursued effectively and in a timely fashion. We also contributed—in collaboration with CSA—to the development of the draft Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. This included attending a meeting in May 2007 of the Special Commission on the International Recovery of Child Support and Other Forms of Family Maintenance.

Family Law Violence Strategy

Collaboration continued with the Family Court and the Federal Magistrates Court, and the States and Territories to ensure allegations of family violence and child abuse are investigated promptly and thoroughly. A report by the Australian Institute of Family Studies, Allegations of family violence and child abuse in family law children’s proceedings, was released in May 2007. Its findings will inform future policy development on the manner in which allegations of family violence and child abuse are addressed in family law proceedings.

Surrogacy

In November 2006, the Attorney-General asked the Standing Committee of Attorneys-General (SCAG) to consider the possible harmonisation of laws regulating surrogacy. SCAG agreed and a working group prepared an issues paper that was discussed at the next SCAG meeting in April 2007. The Victorian Law Reform Commission’s final report on assisted reproductive technology was tabled on 7 June 2007. It was anticipated that this report will assist in SCAG’s further consideration in 2007–08 of issues relating to surrogacy.

Family law superannuation

Amendments were made to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 consequential on the passage and commencement of the Government’s Simplified Superannuation reforms passed in the autumn 2007 parliamentary sittings. The amendments to the Family Law (Superannuation) Regulations were accompanied by other amendments, including those permitting spouses to check whether superannuation interests have been correctly valued under the Regulations by superannuation fund trustees. Consultations were held with State officials and their advisers in New South Wales and Victoria over applications made by those States under the Family Law (Superannuation) Regulations for the approval of alternative methods for valuing superannuation interests held by spouses in certain public sector superannuation schemes.

De facto financial matters

In 2006–07, the Civil Justice Division continued work on the development of a nationally consistent financial settlement regime for de facto couples on relationship breakdown. Consultation occurred with State and Territory officials, the Family Court and the Federal Magistrates Court, the Family Law Council and the legal profession about proposals to implement references of power from New South Wales, Victoria, Queensland and Tasmania, and to legislate in similar terms in the Territories on these matters. There was also consultation with Western Australian and South Australian officials on the prospect of a full reference on de facto financial matters from those States. Western Australia has given a reference on superannuation matters relating to de facto couples arising from the breakdown of their relationship. As well as achieving a coherent national scheme, full references would remove jurisdictional disputes in cross-border cases.

Family Law Amendment Bill

The Division continued to assess and develop a range of amendments to the Family Law Act, building on the significant family law reforms that commenced in 2006.

For the courts and administration of justice

Judiciary Legislation Amendment Act 2006—Non-judicial officers

To ensure the efficient and flexible operation of State courts and their valid exercise of federal jurisdiction, we developed a legislative response—in the form of an amendment in December 2006 to the Judiciary Act 1903—to rectify the problem of non-judicial officers of State courts of summary jurisdiction having purported invalidly to exercise federal jurisdiction.

Federal Court criminal jurisdiction

Divisional officers progressed work on a Bill to enable the Federal Court of Australia to exercise concurrent jurisdiction with State and Territory supreme courts to hear prosecutions on indictment of cartel offences proposed to be inserted in the Trade Practices Act 1974. The conferral of an indictable jurisdiction will represent a significant new direction for the Federal Court, but one that is entirely consistent with its role as a superior court with expertise in federal commercial matters including matters arising under the Trade Practices Act.

Judges’ pensions

The Judges’ Pensions Amendment Bill was introduced into the Parliament on 14 June 2007. The Bill amends the Judges’ Pensions Act 1968 to apply to federal judges who are subject to the superannuation surcharge the reduced rates of surcharge that applied in 2003–04 and 2004–05 and provide to those judges an option of commuting a proportion of their pension entitlements to discharge surcharge debts. The Bill was one of several measures on which the Division worked in close consultation with the federal courts to ensure an equitable and accessible system of federal civil justice.

Statute Law Revision Act

The Statute Law Revision Act 2007 received Royal Assent on 15 March 2007. The Act improves the quality and accuracy of Commonwealth legislation and facilitates the publication of consolidated versions of Acts by amending 31 Acts to correct minor technical and drafting errors, and repealing 17 obsolete Acts that have no current or future operation. The Act also removes references to the obsolete terms ‘official managers’ and ‘official management’ from Commonwealth legislation and removes gender-specific language from the Customs Act 1901.

A new privilege for journalists and their sources

The Division was responsible for developing legislation to amend the Evidence Act (the Evidence Amendment (Journalists’ Privilege) Bill 2007) to provide a new privilege to protect confidential communications between journalists and their sources. The new privilege is discretionary. It allows a court to balance the interests of justice and protection of the community with the public interest in a free press and the right to know. The legislation was modelled on a recommendation of the Australian, NSW and Victorian Law Reform Commissions in the Uniform Evidence Law report. The legislation had input from several areas of the Department and was developed in consultation with a number of key agencies including Treasury and the Australian Federal Police. We are continuing to work with the States and Territories on a number of other recommendations of that report, to finalise model provisions for consideration through SCAG.

Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement

A joint Working Group on Trans-Tasman Court Proceedings and Regulatory Enforcement released its final review report in December. The Working Group recommended a series of reforms designed to enhance cooperation between Australia and New Zealand in civil court proceedings and enable trans-Tasman disputes to be resolved more effectively and at lower cost to businesses and individuals. Officials of the Division and the New Zealand Ministry of Justice commenced preliminary work on a bilateral treaty to introduce the reforms.

Appointments to the federal courts and tribunals

We assisted the Attorney-General on the appointments of five judges to the Federal Court, three judges to the Family Court and 17 federal magistrates, all of whom took office in 2006–07. For the first time, federal magistrate appointments were made in Perth and Cairns. With the announcement of the appointment of three additional federal magistrates in June 2007, to take effect in July, the Federal Magistrates Court (comprising the Chief Federal Magistrate and 51 other federal magistrates) is now the largest of the four federal courts. We also assisted with the appointment of a new judge to the Supreme Court of Norfolk Island.

In 2006–07, the Division also assisted the Attorney-General with 15 new appointments and nine reappointments to the Administrative Appeals Tribunal, seven reappointments to the National Native Title Tribunal and the reappointment of a member of the Defence Force Discipline Appeal Tribunal for a further five years.

Evaluations/reviews

Evaluation of the Building Connections Pilot Project, March 2007

This evaluation analysed the outcomes of an educational program for separated parents, piloted by Interrelate, a provider of family relationship services. Twenty seminars were conducted for 105 participants at four regional NSW locations. The evaluation showed the program achieved positive change in focusing participants on their children’s needs rather than on the conflict between parents. In 55 per cent of cases, participants were more willing to seek help following the program. The evaluation report can be found at the Department’s web site, <www.ag.gov.au>. As a result of the positive outcomes of the pilot project, the Government announced in the 2007–08 Budget that new services using this approach would be rolled out at 28 regional locations over two years.

Children beyond dispute: a prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution, October 2006

Led by Dr Jennifer McIntosh, the Children beyond dispute study compared outcomes for families assisted with different approaches to mediation. It followed two groups of 70 families in Canberra, Melbourne and Adelaide. For one group of families, the child was consulted as part of the mediation process (child-inclusive mediation). For the other group, the mediation focused the parents on the needs of the children, without the children being directly involved (child focused). Both forms of mediation reduced conflict and resolved disputes in a majority of cases. Child-inclusive mediation showed better outcomes for children, better relationships between children and fathers, and agreements that are more durable. The report can be found at the Department’s web site, <www.ag.gov.au>. The research supported the need for more services that provide an opportunity for children to be involved in the process. In the 2007–08 Budget, the Government announced new services for children in regional Australia that will help meet this need.

Challenges

Family relationship services

The difficulty in attracting professionally qualified staff to smaller regional centres is a particular challenge for service providers when they seek to establish family relationship services in rural and remote locations. The mining boom in Western Australia has dramatically increased that challenge. Community based service providers have to compete with mining companies for staff and have difficulties in that state obtaining accommodation for staff and for service delivery. Even ‘fly-in, fly-out’ services are difficult to establish in the absence of short-term accommodation. In May 2007, divisional officers visited the Pilbara and the Kimberley to meet with service providers and discuss the issues they face in establishing or maintaining services in those regions. The information gained from those discussions will assist the Division in planning new services in the regions and in supporting those already there.

Intercountry adoption

Key challenges include working with all Australian jurisdictions to identify inconsistencies and harmonise adoption laws, fees and practices. A continuing challenge in the area of intercountry adoption is the process of identifying children in other countries who need Australian families, in accordance with the provisions of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. This challenge will be addressed by working to improve the operation of existing programs and exploring opportunities for the establishment of new programs. This work will be guided by the development of a strategic plan to ensure a consistent approach to the management and establishment of Australia’s intercountry adoption programs.

Outlook

Family law reform

The coming year will see the final stage of the three year roll-out of the new and expanded services under the family law reform package announced in the 2005–06 Budget. We will conduct selection processes for 25 Family Relationship Centres and 14 Children’s Contact Services. This will bring the number of Family Relationship Centres to 65.

The 2007–08 Budget measure Helping Separated Parents and their Children will provide $36.9 million over four years for two new community based services in regional Australia, an education and support program for separated parents in high conflict and a program for children affected by separation. We will begin the roll-out of those services by undertaking the selection process for organisations to provide the educational and support program in the first 14 regional locations. The selection process for a further 14 locations will be undertaken in the following year and we will also prepare for the roll-out of the new program for children.

Intercountry adoption

Over the next financial year, it is anticipated that the National Peak Overseas Adoption Support Group will be established. The group will provide a mechanism for the exchange of information between the Australian Government and the intercountry adoption community. A new web site will provide information on intercountry adoption and a strategic plan will be completed for the management and establishment of intercountry adoption programs. We aim to complete the handover of responsibility for day-to-day casework of the programs to State and Territory governments and it will encourage the harmonisation of legislation practices through a national working group.

Uniform evidence laws

In the first part of 2007–08, we anticipate developing amendments to the Evidence Act 1995 to implement a response to the joint report of the Australian, NSW and Victorian Law Reform Commissions on uniform evidence laws tabled in Parliament in February 2006. This legislation will promote harmonisation of evidence laws and follows extensive work by a joint working party of SCAG that has been advising on the recommendations of that report and developing a model uniform evidence Bill.

Our People

Achieving a just and secure society

Karl Alderson (left) and Andrew Lawrence, Office of Legal Services Coordination.

Australian government departments, agencies and leading law firms have held discussions under the auspices of the Attorney-General’s Department to explore the use of alternative dispute resolution across government.

Organised by the Department’s Office of Legal Services Coordination, (OLSC) the discussion group brought together officers from a range of departments and agencies including the Departments of Finance; Employment and Workplace Relations; Education, Science and Training; Immigration and Citizenship; and Transport and Regional Services, as well as key agencies such as the Australian Taxation Office, IP Australia, and the Administrative Appeals Tribunal.

The private profession was also represented by lawyers from a number of firms, and the President of the Australian Bar Association.

Karl Alderson, OLSC Assistant Secretary, says the discussion topic reflected the central importance of alternative dispute resolution to government lawyers, and the desire of agencies to work together to share best practice. The discussion group also provided an ideal opportunity for discussion of draft guidelines on dispute management prepared by the National Alternative Dispute Resolution Advisory Council (NADRAC).

Karl Alderson led the discussion group which included keynote speaker Justice Murray Kellam, NADRAC Chair, and Professor Michael Pryles, President of the Australian Centre for International Commercial Arbitration (ACICA).

He explained that OLSC’s involvement in promoting alternative dispute resolution follows on from action taken by the Attorney-General. ‘In mid-2005, Mr Ruddock wrote to his ministerial colleagues to draw their attention to the international commercial arbitration clause in ACICA arbitration rules and to encourage its use by Australian government departments, agencies and business in cross-border contractual documentation,’ Karl said.

‘This was one of the best attended and best received of the discussion groups we held during the year. The fact that we were able to bring numerous agency legal units together with two high profile presenters and key private practitioners was fantastic. There was extensive discussion following the presentations,’ he added.

Andrew Lawrence, legal assistant with OLSC and now on the graduate program, was responsible for the grass-roots organisation of the discussion group.

‘It was a great opportunity for me to see first-hand how productive it is for agencies and private-sector law firms to get together to discuss important issues like arbitration and in particular alternative dispute resolution,’ he said.

The OLSC discussion groups have been held for over two years and have attracted representatives from more than 30 agencies, including a range of government departments including defence, tax, immigration and the Australian Competition and Consumer Commission.

According to Karl Alderson they are a useful forum for users and purchasers of legal services across the Commonwealth to participate in robust and informative discussion.

‘They’ve also helped OLSC build active and productive relationships with key stakeholders while allowing participant agencies to share knowledge and identify opportunities to improve systems and practices for the purchase and use of legal services provided by the Australian Government,’ he added.

Performance indicators

(Quantitative and qualitative)

Output 1.1

Legal services and policy advice on family law, federal courts and tribunals, civil procedure, alternative dispute resolution, administrative law and administration of related government programs

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department's annual workload survey and are an aggregated figure over four separate one week periods - two from a parliamentary sitting week and two from non-sitting periods.

Our People

Achieving a just and secure society

Robert Patch, Personal Property Securities Division.

In May 2006, the Personal Property Securities Reform team organised a seminar in Brisbane on PPS reform for businesses, legal practitioners, public servants and academics.

At the end of his speech, the Attorney- General paid tribute to Professor David Allen, who campaigned for PPS reform for about 20 years before his death in February 2006.

‘The audience was impressed by the speech, and with the Attorney’s personal enthusiasm for PPS reform and commitment to honouring Professor Allen’s memory,’ Principal Legal Officer Robert Patch said.

There are currently more than 70 pieces of Commonwealth, State and Territory legislation dealing with PPS. Placing two large text books on the table next to two much smaller volumes, Mr Patch demonstrates the complexity of Australia’s current PPS legal framework. Recognising the need for reform, in April 2007, the Council of Australian Governments agreed in principle to establish a national system for registering PPS interests.

The Australian Government has committed more than $110 million to build the new national system, including an online register. The new law and register will allow lenders and purchasers entering into transactions involving personal property (all property other than buildings or land) to check cheaply and easily whether there is an encumbrance over the property. The register will also enable priority issues in insolvency cases to be resolved more easily.

When the reform process is complete, Australia will have a single Commonwealth Act providing a comprehensive statement of PPS law.

‘The Government has an opportunity to create the first national PPS law that transcends State borders,’ Robert said.

Output 1.2

Support for the Attorney-General as First Law Officer, advice on constitutional policy, and promotion of Australian legal services internationally

Summary

The Classification, Legal Services and Native Title Division again provided responsive, pro-active and well received services to stakeholders, including the Attorney-General and his office, other Commonwealth departments and agencies, and providers of legal services to the Government. The Division promoted frameworks for advancing a national legal profession and the harmonisation of laws throughout the jurisdictions of Australia, assisted in the management of classifications for film and publications, and promoted legal cooperation and the export of Australian legal services in the Asia–Pacific region and more broadly.

Major achievements

Achieving whole-of-government objectives in legal services

A key performance indicator was the extent to which the framework for the handling of legal matters by the Australian Government to achieve whole-of-government objectives was maintained and enhanced. As indicated in the 2005–06 annual report, the Division had anticipated working closely with other agencies in the year ahead to achieve compliance with the Legal Services Directions 2005, including reporting on compliance and publishing information about expenditure on legal services. The Directions provide a framework for the delivery of legal services to the Australian Government and its agencies. To promote this, seminars were held in 2006–07 for agencies and private legal services providers in Canberra, Sydney and Melbourne. These events improved awareness of the Directions, including its 2006 amendments, and promoted compliance to reduce the possibility of future breaches.

Note: The figures for 2005–06 breaches under investigation at year’s end differ from those reported in the 2005–06 annual report. One investigation was inadvertently omitted from the statistics in that report.

We investigated 51 possible breaches of the Legal Services Directions in 2006–07 (including 11 that arose before 1 July 2006). Those substantiated were mostly in relation to the fees paid to counsel (see Table 1).

Other breaches related to performance of tied legal work without approval, compliance with the model litigant obligation, failure to refer a decision about public interest immunity to the agency with administrative responsibility, failure to include a sanction provision in a contract for legal services, and failure to provide a certificate of compliance with the Directions for 2005–06. When we investigated breaches we engaged with the agency or law firm on obligations under the Directions, on appropriate remedies, and on steps to be taken to avoid future breaches.

a. As of 1 March 2006, the Office of Legal Services Coordination (OLSC) took on responsibility for setting all initial rates for counsel briefed by the Commonwealth.

b. In seven cases, an application received by OLSC resulted in the approval of both ongoing and one-off rates. In two cases, a rate granted by OLSC was reviewed at the applicant’s request, and the approval adjusted. These rates have been counted as only one approval.

Through the Office of Legal Services Coordination (OLSC), we considered 360 counsel fee applications in a timely and responsive manner, as required by the Directions (see Table 2). Considerable assistance was provided to departments and agencies to guide them on application of the Directions. The Office worked closely with the Department of Finance and Administration to advise the two ministers responsible for the Australian Government Solicitor (AGS) about its performance and compliance with its obligations as a body corporate under the Commonwealth Authorities and Companies Act 1997. OLSC assisted the Australian Government Solicitor to enhance its corporate reporting to ministers on its activities in support of the Attorney-General as First Law Officer, and to enable ministers to better assess this aspect of AGS operations.

The Office managed the Department’s legal services panel in its first year of operation, assisting Divisions of the Department with legal services purchasing. The Office fostered a community of practice on the use of legal services. It also continued to work closely with the Insolvency and Trustee Service of Australia (ITSA) in relation to personal insolvency policy. It assisted with legislation on matters such as superannuation and debt agreements, attended the Sixth ITSA Bankruptcy Congress, attended meetings of the Bankruptcy Reform Consultative Forum, and participated on the committee established under section 155H of the Bankruptcy Act 1966 to consider the involuntary termination of a trustee in bankruptcy.

Constitutional issues in litigation and in policy development

The Constitutional Policy Unit provided assistance and advice on constitutional policy and development, litigation and public law issues of federal significance. In particular, the Unit continued to assist with advice in relation to the harmonisation of federal legal arrangements in the areas of personal property securities, the application of federal family law to the property of de facto couples, and arrangements in relation to the law of evidence. The Unit was closely involved with the Department’s contribution to the inquiry by the House of Representatives Standing Committee on Legal and Constitutional Affairs into the question of Northern Territory statehood.

In consultation with the Solicitor-General and the Australian Government Solicitor, we continued to play a central role in all questions of intervention by the Attorney-General in constitutional litigation. In terms of constitutional litigation more generally, the Unit was engaged in the preparation of the Commonwealth’s case in a wide range of significant proceedings. It was closely involved, for example, in defending the High Court challenge to the Australian Government’s workplace relations reforms. Other significant matters included the High Court proceeding in Thomas v Commonwealth, which involved the validity of provisions of the Commonwealth Criminal Code dealing with ‘control orders’, and the High Court proceeding in Roach v Electoral Commissioner regarding the validity of provisions of the Commonwealth Electoral Act 1918 precluding a prisoner from voting at federal elections.

The Constitutional Policy Unit continued to provide technical advice on issues arising from the Cole Commission of Inquiry into the UN Oil-for-Food Programme. This included responsibility for the conduct of the Commonwealth’s case in various Federal Court proceedings on legal professional privilege claims before the Commission, and assistance in relation to the enactment of the Royal Commissions Amendment Act 2006. It included assistance on the reference by the Attorney-General to the Australian Law Reform Commission in November 2006 of terms of reference for an inquiry into legal professional privilege and Commonwealth investigatory agencies, and on the broader response by the Australian Government to the recommendations made by Commissioner Cole in his 2006 report.

Harmonising laws in Australia

The Division continued to promote the harmonisation of laws in Australia—a priority of the Attorney-General—through the Standing Committee of Attorneys-General (SCAG). Proposals for this were agreed to by the States and Territories in 2006–07. We had envisaged securing agreement for a national system for the regulation of personal property securities and encouraging uniformity in evidence laws. Progress on these priorities was made in the year.

We coordinated the Australian Government’s participation in SCAG and supported the Attorney-General and the Minister for Justice and Customs at the meetings. At the three meetings held in 2006–07, the Australian Government continued to pursue its objectives for appropriate, consistent and uniform legislation. We also supported the Attorney-General in hosting the SCAG meeting in Canberra in April 2007.

During the year, SCAG agreed to a large number of proposals from the Department. At the top of the list were new harmonisation initiatives including: development of reform proposals for harmonisation of statutory declarations regulation and forms; taking the steps necessary to enable Australia to accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; and preparing a discussion paper to examine the general principles relevant to the national harmonisation of limitation laws.

We supported the Attorney-General and the Government in the development of a proposal for reform through extensive consultation with stakeholders in industry, the legal profession, government and other sectors. SCAG agreed to proceed, in consultation with stakeholders, with the development of detailed proposals for the Personal Properties Securities (PPS) law reform. It developed three discussion papers on PPS reform for public comment and gained the agreement of the Council of Australian Governments (COAG). We also held a Policy Development Workshop in Sydney in July 2006 which included presentations from speakers who had experience of PPS in New Zealand and Canada.

SCAG agreed to establish a Coronial Liaison Officer network to facilitate coronial cooperation in mass disaster incidents, including agreement by State and Territory Attorneys-General to implement, in their jurisdictions, a draft model provision for one coroner to give aid to another. It also adopted a proposal from the Department to continue the Model Criminal Law Officers Committee to refine the Model Criminal Code and report to Ministers at each meeting on implementation of criminal law harmonisation projects. Finally, it agreed to consult with key stakeholders on two options for the central assessment of overseas qualified lawyers seeking admission to practise in Australia, and to adopt a number of high level principles to encourage consistency for future SCAG model legislation.

The Division worked closely with all Australian jurisdictions, the National Legal Profession Project secretariat in New South Wales and the Law Council of Australia to ensure the timely and consistent implementation by those States and Territories still to pass legislation based on the National Legal Profession Model Bill. It also finalised agreement upon the drafting of updated Model Regulations.

Most jurisdictions have now implemented the legislation. Legislation based on the National Legal Profession Model Bill was passed in the Northern Territory and commenced on 31 March 2007. The remaining jurisdictions (Western Australia, Tasmania and South Australia) were expected to follow later in 2007 or early 2008.

Film and literature classification

Classification is a cooperative scheme involving the Australian Government and all State and Territory governments. From 1 July 2006 the Division was responsible for Australian Government policy on the classification of film, literature and computer games and took a leading role in the development of classification policy nationally under the cooperative scheme.

The integration of the Office of Film and Literature Classification into the Department was achieved for 1 July 2007. There was close collaboration with the Office during the year to ensure a smooth transition of its operational, administrative and financial functions.

Major policy initiatives were advanced to improve classification for industry and consumers, and to respond to new challenges posed by changes in marketing and technology. Legislation was developed to ensure that the National Classification Scheme catered for captioning and interactive menus and that it streamlined the classification of already classified films with additional content. Legislation was developed and introduced into Parliament to respond to developments in marketing and distribution while retaining protections for consumers. New provisions were proposed to replace the prohibition on advertising unclassified films and computer games with an assessment scheme to allow advertising, subject to a range of conditions, and to introduce an authorised assessor scheme for compilations of episodes of a television series already broadcast in Australia.

A priority objective of the Attorney-General was to ensure that material advocating terrorist acts was refused classification and therefore not lawfully available in Australia. We responded efficiently and effectively on this, and negotiations on the necessary amendments to the National Classification Code and its guidelines took place with the States and Territories. Commonwealth legislation was developed and introduced into Parliament.

The Classification Policy Branch took responsibility for the Standing Committee of Attorneys-General (Censorship) Secretariat in July 2006. The Secretariat assisted the operation of the cooperative scheme by facilitating discussions between Commonwealth, State and Territory SCAG (Censorship) officials, settled papers to be presented to SCAG (Censorship) ministers, and assured the ongoing administration of the National Classification Scheme. It also provided administrative support for three meetings of Censorship officials in the year, held before the meetings of Censorship ministers.

We worked closely with the Office of Film and Literature Classification, the States and Territories, the Department of Communications, Information Technology and the Arts, and the Australian Communications Management Authority on the interaction between the classification scheme and the regulation of content on broadcast, online and other media. It also assisted the Government to make appointments to the Classification Board and Classification Review Board to ensure those boards continued to be broadly representative of the Australian community.

Legal services and cooperation

A major achievement in 2006–07 was the development and implementation of the Australia–China Legal Profession Development Program, an initiative conceived by the Department and funded through AusAID. It was introduced by the Division in collaboration with the Law Council of Australia and the All China Lawyers’ Association. The program involved 10 Chinese legal practitioners, including officials, undertaking a focused training and individual placement program in Australia over four months to provide them with experience and knowledge in specific areas of law and an understanding of the Australian legal system. This initiative was well received in China and by the Australian legal profession. We expect the Chinese lawyers, upon their return home, to make a contribution to law reform, the rule of law and the legal profession.

Another major achievement in 2006–07 was the establishment of a China Working Group on legal services to support negotiations for an Australia–China free trade agreement (FTA). The Working Group, which includes representatives from the legal profession, academia and government, provided the Australian Government negotiating team with details on market access priorities for the Australian legal profession in China. It identified options to assist Australian negotiators in proposing to their Chinese counterparts possible mechanisms through which Australian and Chinese lawyers could work together in the future.

We provided secretariat support for the International Legal Services Advisory Council (ILSAC). The Council’s main objectives are to promote the international profile of Australia’s legal services and system and to cultivate links between legal sector counterparts in Australia, the region and the world at large. The Council also supports development of Australia’s international legal education and training services, explores opportunities for enhancing Australia’s role in international commercial dispute resolution (ICDR), and improves coordination of public and private sector activities aimed at promoting the export of Australia’s international capabilities in legal and related services.

As anticipated, the Division again worked closely with the Department of Foreign Affairs and Trade (DFAT) and the legal profession in advancing Australia’s interests in legal services and legal education services in relation to free trade agreements (FTAs) being negotiated with China, Malaysia, Japan, ASEAN, Chile, and the Gulf Cooperation Council. Our input ensured that legal services were able to be progressed as a significant sub-sector of interest in each of the FTAs.

The Department was involved in matters under the existing FTAs with the United States and Singapore. On the US FTA, the Department made significant contributions to representations led by the Law Council of Australia. This led to the US Conference of Chief Justices passing a resolution encouraging all US jurisdictions to recognise a right for Australian lawyers to sit the bar examination in each of the US jurisdictions to gain admission to practise law. This was the first time the Conference had singled out a particular country for recognition in this manner. Continued support was provided to DFAT for Australia’s efforts to find a breakthrough in the World Trade Organization (WTO) negotiations and in particular for the legal services sector.

The Attorney-General led a 24-member Legal Services Mission to China that had representatives of ILSAC, law firms, law schools, commercial dispute resolution interests and the Department. The mission was highly successful in promoting the interests of Australian legal services providers and strengthened legal profession links in government and the private sector. The mission also played a role in building support in China for promoting improvements in the mobility of lawyers between the two countries through the ongoing FTA negotiations. The mission resulted in the establishment of the China Working Group mentioned above. The Department also participated in a subsequent Law Council of Australia delegation to China to build profession-to-profession linkages.

The Department contributed to the strengthening of Australia’s links with Indonesia in the law and justice area. It provided guidance and assistance in implementing a Guest-of-Government visit to Australia in October 2006 by Dr Hamid Awaluddin, the Indonesian Minister for Law and Human Rights, including facilitating a useful meeting for the minister with the president of the Law Council of Australia. It also partially funded a two month course at the International Institute for the Unification of Private Law (UNIDROIT) in Rome for an an official of the ministry.

A pilot project was finalised to improve the quality of statistics on the export of legal services. Preliminary results indicate legal services exports are more extensive than suggested in other comparable surveys. On ILSAC’s recommendation and with the Attorney-General’s support, this survey will be extended to cover exports for the 2006–07 period. The results of the pilot project and future surveys will provide a valuable tool for developing export strategies for government and the private sector.

The Department was successful in gaining further recognition of Australian law degrees and legal qualifications overseas with the objective of encouraging overseas students to study law in Australia. The recognition by India of law degrees from five law schools (Australian National University, Bond University, Griffith University, Queensland University of Technology and the University of New South Wales) is a significant result. The Council of Australian Law Deans has sought assistance in progressing the applications of a further group of law schools. In another positive development and as a direct result of ongoing representations by the Division, the Government of Brunei has implemented legislation recognising Australian legal qualifications, paving the way for students from Brunei to study law in Australia as an avenue to gain admission to practise law in Brunei.

Challenges

An ongoing challenge was the need to ensure agencies continued to understand and comply with the Legal Services Directions and that the Australian Government’s policy interests in the use of legal services were protected. A variety of outreach activities were conducted, such as seminars, discussion groups and the publication of guidance notes.

To effect timely agreement between the parties on the National Legal Profession Model Bill, it has been necessary to accept some differences in legislation from one jurisdiction to another. The challenge was to minimise the variation and press for the maintenance of national consistency, as well as to continue to press for implementation to occur in all jurisdictions.

Working towards the integration of the Office of Film and Literature Classification into the Department raised a range of challenges that were considered and addressed by close cooperation and a number of joint working groups.

Outlook

To achieve Output 1.2—support for the Attorney-General as First Law Officer, to provide advice on constitutional policy, and to promote Australian legal services across government departments, agencies and internationally—we will maintain and improve effective outreach activities to stimulate the use of legal services within the parameters of the Legal Services Directions.

We will continue to build the ‘informed purchaser’ capability across the Department, by maintaining and enhancing the community of practice group as a forum to discuss legal services purchasing issues and to share knowledge.

We will continue to work cooperatively with all jurisdictions to ensure timely implementation of the National Legal Profession Model Bill in those States that have not yet adopted it, and to ensure any avoidable differences in legislation across jurisdictions are minimised or removed.

We will continue to promote the harmonisation of laws by supporting the Attorney-General and the Department in working with the States and Territories through the Standing Committee of Attorneys-General.

From 1 July 2007, the former Office of Film and Literature Classification will be absorbed into the Classification Operations Branch of the Division. The Department will ensure that this new Branch provides effective support to the Classification Board and the Classification Review Board, and that it works closely with the Classification Policy Branch of the Division so that the Australian Government continues to take a leading role in managing Australia’s classification policy and administration as part of the National Classification Scheme. We will provide for legislation and subordinate instruments to implement a number of classification policy initiatives, and will continue to engage with governments, industry and other stakeholders.

Work is expected to intensify in 2007–08 on several free trade agreement negotiations, including with Chile, China, Japan, Malaysia and ASEAN. We will work closely with ILSAC, legal professional bodies and DFAT to seek positive outcomes for the legal and related services sector.

The Personal Properties Securities Branch became a separate Division of the Department on 16 April 2007. It will report separately for the 2007–08 annual report. The new Division will prepare exposure draft legislation for the proposed PPS reforms. It will continue to develop a single national online register for personal property securities and will work with States and Territories for an intergovernmental agreement on personal property securities reform.

Our people

Achieving a just and secure society

Kathryn Reidy, Classification Operations Branch.

In February 2006, the Attorney-General announced that the Office of Film and Literature Classification (OFLC) was to be integrated into the Attorney-General’s Department.

‘The announcement was a big surprise,’ Kathryn Reidy, Manager, Education and Communications at the OFLC said. ‘We had always worked closely with the Department on policy matters, so in many ways, the change made sense. We just hadn’t expected to actually join our colleagues as Department employees!’

The decision was in keeping with government policy to reduce the number of government agencies and to return policy functions to government departments.

The integration process, which was jointly managed by the Department and the OFLC executive, in consultation with section managers, was completed on 1 July 2007.

A major task, it involved moving the OFLC’s policy and administrative functions that had been managed by the Sydney office into the Classification, Legal Services and Native Title Division.

The policy function moved to Canberra to become the Classification Policy Branch and the administrative functions remained in Sydney as the Classification Operations Branch to provide secretariat support for the Classification Board and the Classification Review Board.

Canberra and Sydney-based staff worked together to create a new web site, <www.classification.gov.au> that provides information to the film, computer games and publications industries about applications for classifications. They also developed classification policy pages on the <www.ag.gov.au> web site.

‘From my perspective as a manager, it’s exciting to be part of a larger agency. We still get to do the classification work we love, but we also have new opportunities,’ Kathryn said. ‘Most importantly, we now have a vision of our future as part of the Department.’

Performance indicators

(Quantitative and qualitative)

Output 1.2

Support for the Attorney-General as First Law Officer,
advice on constitutional policy, and promotion of Australian legal services internationally

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department’s annual workload survey and are an aggregated figure over four separate one week periods—two from a parliamentary sitting week and two from non-sitting periods. This figure is the total for the Classification, Legal Services and Native Title Division.

Our People

Achieving a just and secure society

Elena Down, Disability Discrimination, Human Rights Branch.

When Australia’s Ambassador to the United Nations in New York signed the Convention on the Rights of Persons with Disabilities in March 2007, it was the culmination of five years of dedicated work by officers from the Attorney- General’s Department.

The Convention is the first major human rights treaty of the 21st century and the first of its kind specifically dedicated to protecting people with disabilities.

For Elena Down, a Senior Legal Officer in the Human Rights Branch, the Convention was of personal significance. In the past, Elena has volunteered in developing countries, working with deaf people.

‘While I was volunteering, I discovered how important it is to help people with disabilities to broaden their horizons, challenge their conceptions of what they can do and empower them to shape their lives,’ Elena said.

‘The Convention is about providing frameworks to enable people with a disability to pursue these goals.’

While developing the Convention and during the processes leading to signature, the team developed close partnerships with colleagues in the Department of Families, Community Services and Indigenous Affairs and the Department of Foreign Affairs and Trade, with officials on delegations from other countries, and with Australian non-government organisations.

Matt Minogue, Assistant Secretary, Human Rights Branch, who led three Australian delegations, noted how important developing relationships with stakeholders was to the Branch.

‘I know that our team, led by Kerri-Ann Smith, Principal Legal Officer, was very conscious that our policy work needed to be shaped by the real experiences of people living with a disability.’

‘In partnership with local NGOs, nationwide consultations were undertaken with the disability sector. This meant that our delegations to the United Nations were better informed and could credibly represent the needs of people with a disability,’ he said.

Australian delegations attended all eight United Nations Ad Hoc Committee sessions to consider the Convention. The delegations included Government and NGO delegates, including people with disabilities.

‘I was honoured to be part of the Australian delegation and contribute to the finalisation of the Convention text,’ delegate Kelisiana Thynne from the Office of International Law said.

‘It was a privilege to work alongside experienced professionals who brought a personal perspective about the challenges of living with a disability.’

Matt Minogue noted that it was not uncommon for other delegations to seek the views of Australia, and that the high level of cooperation between Australia’s Government and non-government delegates impressed many of the other delegations.

Although the Convention has been signed, there is still more work ahead for staff from the Human Rights Branch and the Office of International Law, as they assist the Government consider the ratification process.

‘It has been an honour to work with such a great team of people on this project,’ Elena said.

Output 1.3

Legal services and policy advice on information law and human rights

Summary

Output 1.3 is the responsibility of the Information Law and Human Rights Division. Advice provided under this output covered privacy, freedom of information, parliamentary privilege, defamation, electronic commerce, copyright, and domestic human rights policy and obligations. Major work undertaken in the year included major amendments to copyright law to keep pace with technological change, as well as changes to privacy laws to enable information exchange in the event of an emergency or disaster. The year also saw Australia sign the UN Convention on the Rights of Persons with Disabilities and accede to the Internet treaties of the World Intellectual Property Organization. The Division also completed the update of the guidelines on the operation of the Freedom of Information Act 1982. There was extensive consultation and collaboration with other departments on a large number of matters, including the Department of Human Services Access Card, with very positive feedback given by other government agencies on the Department’s input.

Major achievements

Information law

Amendments to the Privacy Act

In its 2005–06 annual report, the Department indicated that the Government planned to introduce amendments to the Privacy Act 1988 in 2006–07 to improve information exchange in an emergency or disaster situation. The result was the Privacy Legislation Amendment (Emergencies and Disasters) Act 2006, which came into effect on 6 December. The Act amended the Privacy Act to provide a clearer and more certain framework for the collection, use and disclosure of personal information about people involved in an emergency or disaster. The amendments put beyond doubt that the Privacy Act allows the exchange of essential information in an emergency.

The Privacy Legislation Amendment Act 2006 came into effect on 4 September 2006. It amends the National Health Act 1953 and the Privacy Act to deal with the collection and handling of sensitive genetic health information.

Core stakeholders in government, the private sector (in particular the travel industry and banks) and major non-government organisations involved in disaster response were consulted in the development of the amending legislation. The result reflected broad agreement among these stakeholders.

Freedom of information

The Department reported in 2005–06 that it would continue with the project of progressively updating guidelines on the operation of the Freedom of Information Act 1982. This was completed in 2006–07, and the new guidelines were published on the Department’s web site. The new guidelines start from the premise that FOI officers are reasonably familiar with the Act; the guidelines thus offer practical guidance in plain English and avoid the detailed legal interpretation of the superseded memorandums. However, because the exemptions in the Act have been subject to extensive legal argument in the Administrative Appeals Tribunal and the Courts, the guide addresses these with the necessary legal detail.

APEC

The Division is also responsible for international privacy and electronic commerce issues, participates in the APEC Data Privacy Sub-Group, for which it provides the Chair. Major highlights for this year were the successful completion of two seminars and productive Sub-Group meetings, as measured by progress in the development of a system for cross-border privacy rules and agreement on forward work agenda for 2008.

Access card

In 2006–07, the Department actively contributed to legal and policy working groups established by the Department of Human Services (DHS) to develop the access card legislation. The Department received positive feedback from DHS on an ‘excellent working relationship’ over the card with the Information Law and Human Rights Division, the Criminal Justice Division (particularly the Criminal Law Branch and the Identity Security Branch) and the administrative law advisers within the Civil Justice Division. This feedback is recorded in the Performance indicators at the end of this report section.

Other privacy issues

The Department worked with the Department of Employment and Workplace Relations (DEWR) on workplace privacy issues, including whether there was a need for further measures to enhance the privacy of employee records. A working party of the Standing Committee of Attorneys-General (SCAG) considered options for improving the consistency of privacy regulation including issues of workplace privacy. The working party prepared a discussion paper outlining potential options for workplace privacy regulation. This paper was circulated to key employer and employee organisations and other key stakeholders. In order to ensure consistency between the SCAG review of workplace privacy and the Australian Law Reform Commission (ALRC) privacy review, the ALRC was consulted on the SCAG discussion paper.

The Department also continued to participate in the National Code of Practice for CCTV Systems working group to monitor application of the code and examine legal and procedural issues that require further consideration. The Division also participates in the Organisation for Economic Cooperation and Development (OECD) Working Party on Information Security and Privacy.

Copyright

Copyright Amendment Act 2006

The pace of technological change continued to be a challenge for copyright law and policy. The ease with which people can infringe copyright in the online environment required consideration at many levels in order to develop appropriate responses. The findings of a number of reviews informed the Government and led to the Copyright Amendment Act 2006. The Act includes a range of significant reforms to strengthen copyright owners’ rights and provide more certainty for users in the digital environment. Consumers can now copy some copyright material, such as music, into other formats in some circumstances without breaching the law. Innovative exceptions allow for the use of copyright material for socially useful purposes, such as use by educational institutions, libraries and people with disability. The laws also ensure that copyright owners can better protect their legitimate rights and make their material securely available online in new and different ways, through the use of technological protection measures. New enforcement measures, including on-the-spot fines and proceeds of crime remedies, target copyright piracy at all levels.

The amendments implemented government decisions arising from several copyright law reviews finalised in 2005–06, obligations under the Australia–US Free Trade Agreement, and other policy initiatives. The Act was the result of effective consultation with copyright stakeholders, other government departments, and scrutiny by two parliamentary committees.

The Copyright Amendment Act also amended the jurisdiction of the Copyright Tribunal of Australia to expand the range of issues that can be referred to the Tribunal. The Tribunal now has broad jurisdiction over all voluntary licences that are offered by a collecting society and the Tribunal may have regard to guidelines on licences that will be issued by the Australian Competition and Consumer Commission The Tribunal is also able to refer the parties to any proceeding before it to alternative dispute resolution.

Intellectual property

In January 2007, IP Australia and the Department sponsored the APEC IP Trading Ideas Symposium on the future of intellectual property (IP) in the Asia–Pacific. This successful event drew together influential IP managers, practitioners and policy makers from across the globe and featured speakers from the leading and emerging IP offices in the APEC region and beyond, and the World Intellectual Property Organization.

In a fitting celebration of World Intellectual Property Day on 26 April 2007, Australia deposited its instruments of accession to the World Intellectual Property Organization (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty. These treaties represent an important advance in improving copyright standards to meet the challenges posed by the digital environment. Both treaties will come into force for Australia on 26 July 2007.

In September 2006, a delegation from the National Copyright Administration of China met with the Attorney-General, relevant government agencies, copyright collecting societies, copyright industry groups, and publishers.

Connected government

The Copyright Law Branch continued to work closely with relevant operational service and policy agencies—including IP Australia, the Australian Federal Police, Australian Customs, the Department of Foreign Affairs and Trade, the Commonwealth Director of Public Prosecutions, and the Australian Crime Commission—on the Interdepartmental Committee (IDC) on IP Enforcement. The IDC developed a range of recommendations for the Government to consider to address counterfeiting and piracy at a domestic level.

On 11 May 2007, the Attorney-General announced a policy for management of IP by Australian Government agencies. The Statement of IP Principles applies to all government agencies covered by the Financial Management and Accountability Act 1997. Agencies are required to comply with its requirements by 1 July 2008.

Screenrights and the Australian Government (represented by the Department) agreed in 2006–07 to provide equitable remuneration to copyright holders represented by Screenrights for copies of audiovisual material made for the services of the Commonwealth. Screenrights is a declared collecting society for the use of audio-visual material under section 182C of the Copyright Act 1968. Its members include filmmakers, writers, broadcasters, distributors and other copyright owners. There was extensive consultation with departments and agencies on the terms of the agreement.

In collaboration with the Department of Foreign Affairs and Trade (DFAT), the Copyright Law Branch made a very strong contribution to negotiations on intellectual property provisions in the ASEAN, China and Malaysia free trade agreements. DFAT’s satisfaction with advice provided on a range of technical IP issues is noted in the Perfomance indicators table below. The Office of Trade Negotiations in DFAT recorded its particular satisfaction with the legal and policy advice provided on the implementation of technological protections measures in relation to the Australia–US Free Trade Agreement and on intellectual property issues in general.

Copyright administration

Managing Australian Government copyright in published text-based materials, the Commonwealth Copyright Administration (CCA) responded to about 1,800 written requests and inquiries to reproduce copyright material in 2006–07. Sixty-three per cent of requests were answered in one day, and 80 per cent within one week. The CCA also responded to several hundred inquiries from other government agencies concerning issues related to copyright management.

Human rights

For people with disability

On 30 March 2007, Australia—represented by His Excellency, the Hon. Robert Hill, Ambassador and Permanent Representative to the United Nations—participated in a formal ceremony at the UN headquarters to sign the UN Convention on the Rights of Persons with Disabilities. This followed the adoption of the text of the Convention by the UN General Assembly in December 2006, the culmination of a five year process of consultation and negotiation by an ad hoc Committee established by the UN. Australian delegations attended all eight sessions of the ad hoc Committee from 2002 to 2006 and made significant contributions to the final text. The Convention marks a number of milestones: it is the first major human rights treaty of the 21st century; it is the first international treaty to focus specifically on the rights of people with disability; and it will help protect the rights of 650 million people with disability worldwide. The States and Territories were consulted on the text and their feedback and input influenced Australia’s negotiating position on the text. States and Territories will continue to play an ongoing role in contributing to processes that assist the Australian Government’s consideration of ratification of the Convention.

A Commonwealth, State and Territory interjurisdictional working group was formed in 2006–07 to discuss Disability Standards and the implementation of the Productivity Commission’s review of the Disability Discrimination Act 1992. The Department hosted a working group meeting in Canberra with State and Territory representatives on 25 September 2006.

There were also developments on a nationally consistent approach to authorising the sterilisation of minors with a decision making disability. In 2003, the Standing Committee of Attorneys-General (SCAG) agreed there should be a nationally consistent approach on authorisation procedures for lawful sterilisation of minors with a decision making disability. A State and Territory working group was established to work on this issue. The Australian Government has observer status. The Department represented the Australian Government on the working group and coordinated input from other Australian Government agencies. During this reporting period, the working group released an issues paper for consultation with selected stakeholders, along with draft model provisions that could be adopted by each State and Territory. Feedback from stakeholders was considered, and no policy decisions were taken in 2006–07.

Ratification of the Optional Protocol to the Convention on the Rights of the Child

Australia ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography on 8 January 2007. The Optional Protocol entered into force for Australia on 8 February 2007. It was developed to protect children from the worst forms of commercial exploitation. The protocol requires countries to criminalise serious violations of children’s rights. These violations include the transfer of organs from children for profit, child prostitution and child pornography, and the sale of a child for sexual exploitation and forced labour.

Attorney-General’s NGO Forum on Domestic Human Rights

The 15th Non-Governmental Organisation (NGO) Forum on Domestic Human Rights on 15 June 2007 was an important opportunity for these organisations to have direct dialogue with the Attorney-General and the Department on domestic human rights issues. A review was conducted of forum membership to ensure an even mix of NGOs were invited. The criteria for membership included that the organisation has ‘peak’ or ‘national’ status and works primarily to enhance the protection of human rights in Australia. Participants at the 2007 forum generally gave a positive evaluation of the event.

International visits

The Department was involved in a number of international human rights dialogues, programs and forums in 2006–07, as set out below.

Australia–Vietnam Human Rights Dialogue

The fifth dialogue was held from 16 to 18 April 2007 in Hanoi, Vietnam. Australia’s delegation included senior officials from DFAT, the Australian Agency for International Development (AusAID) and the Department, as well as the President of the Human Rights and Equal Opportunity Commission (HREOC). Vietnam was represented by senior officials of various government agencies. Discussions covered key issues such as religious freedom, the freedoms of expression and association, the death penalty, legal and judicial reforms and gender equality. The first year of implementation of the Vietnam Human Rights Technical Cooperation Program (administered by HREOC) was discussed in positive terms and agreement was reached on exploring new activities.

Australia–China Human Rights Dialogue

The 10th Australia–China Human Rights Dialogue was held on 25 July 2006 in Canberra. The Australian delegation, which included senior officials from the Department, raised a range of ongoing human rights concerns, including freedom of the press, religious freedom, the treatment of political activists and Falun Gong practitioners, and Tibet. The dialogue was also an opportunity for the two sides to agree on activities to be conducted in 2006–07 under the Human Rights Technical Cooperation Program administered by the Human Rights and Equal Opportunity Commission.

Australia–Laos Human Rights Dialogue

The inaugural Australia–Laos Human Rights Dialogue was held in Laos from 2 to 5 October 2006. Discussions covered the role of the legal sector in protecting human rights, women’s and children’s rights, and ethnic and religious diversity. The Australian delegation, comprising senior officials from the Attorney-General’s Department, DFAT, and HREOC, raised the Government’s concerns on some particular human rights issues and cases, and shared experiences with the Laotian delegation on issues of mutual interest. The dialogue included discussion of Laos’s Legal Sector Master Plan, which outlines legal reforms to assist Laos to become a ‘rule of law’ state by 2020. As part of the dialogue program, the Australian delegation was granted the first international access to a Vientiane detention facility under the current regime, and was able to tour various areas of the facility. The delegations discussed the possibility of future bilateral technical cooperation and further dialogues.

Muslim Community Reference Group

Following the Prime Minister’s summit with Muslim community leaders in August 2005, a National Action Plan to Build on Social Cohesion, Harmony and Security was developed with the assistance of the Muslim Community Reference Group. During the reporting period, the Department participated in the Improving Crisis Management Subgroup until its conclusion, as well as the interdepartmental committee responsible for implementation of the National Action Plan. Emergency Management Australia (EMA) and the Protective Security Coordination Centre (PSCC) were also involved in these initiatives, as mentioned in Outputs 2.3 and 2.4 respectively.

Education Standards promotion

The Department, together with the Department of Education, Science and Training, promoted public awareness of the Disability Standards for Education 2005. Copies of the Standards and accompanying Guidance Notes, together with a foreword by the Attorney-General and the Minister for Education, Science and Training, were sent to all Australian educational institutions, to peak disability groups and to State and Territory education departments.

Challenges

Information law

In January 2006, the Attorney-General gave a wide ranging reference to the Australian Law Reform Commission (ALRC) to consider the extent to which the Privacy Act and related laws continue to provide an effective framework for the protection of privacy in Australia. The Department has provided information and advice to the ALRC on its issues papers in October and December 2006 and also for the ALRC’s discussion paper scheduled to be released later in 2007. The ALRC is due to report to the Government by 31 March 2008.

Copyright

The ongoing challenge in the area of copyright is ensuring that the laws, policies and practices remain relevant in the face of emerging technologies. In particular, the growth of the Internet, digital works and online business models creates challenges in ensuring the protection of copyright in the digital environment.

Recent studies by international industry and non-industry bodies indicate increasing links between piracy and counterfeiting and organised crime networks. This poses a further challenge, that of developing appropriate and effective whole-of-government responses to IP crime, as well as responses that are consistent with those of Australia’s trading partners.

Another ongoing challenge in copyright enforcement is fostering cooperation between law enforcement bodies, government policy agencies and copyright industries. This includes ensuring adequate consultation on legislative reviews, and policy initiatives, as well as intelligence sharing and cooperation to achieve practical outcomes.

Human rights

The development of Disability Standards for Access to Premises continued throughout the year. Following the provision to the Government of further information from the Australian Building Codes Board on its proposal for technical provisions to form the basis of changes to the Building Code of Australia, the Department continues to meet regularly with the Department of Industry, Tourism and Resources to progress issues.

Outlook

Information law

In the year ahead, the Division will continue to provide information and advice to the Australian Law Reform Commission’s discussion paper on the review of privacy and will examine the recommendations of the final report when it is released in March 2008. It will provide further advice and continue to work with the Department of Human Services as the access card initiative is progressed towards implementation.

Copyright

A review will be conducted in 2007–08 of the format-shifting copyright exception for films and photographs to consider whether it be extended to audiovisual material in digital form such as DVDs. This review is to be completed by March. There will also be a review of the amendments to the Copyright Act 1968 made by Schedule 4 of the Copyright Amendment (Parallel Importation) Act 2003. The review is required by section 15 of that Act and will be completed during 2007–08. A third development for the year ahead is the finalisation of changes to the Indigenous Communal Moral Rights Bill for introduction into Parliament.

Human rights

The Department will assist the Government in its consideration of ratification of the UN Convention on the Rights of Persons with Disabilities. This will include a comprehensive review of Commonwealth, State and Territory legislation. It will also involve the preparation of a National Interest Analysis which will examine the foreseeable economic, environmental, social and cultural effects of the Convention.

Assistance will be provided to the Government in its consideration of the report of HREOC’s inquiry into discrimination against same-sex couples in the area of financial and work-related entitlements. The report was tabled by the Attorney-General on 21 June 2007.

The Department will examine the outcome of the five year review of the Disability Standards for Accessible Public Transport 2002 and consider any recommendations made by that review. We will continue to work with the aviation and air transport sector to resolve policy issues affecting people with disability in relation to air travel. It will also seek legislative priority to progress the Government’s response to the Productivity Commission’s review of the Disability Discrimination Act, which will require legislative amendment in 2007–08.

Performance indicators
(Quantitative and qualitative)

Output 1.3

Legal services and policy advice on information law and human rights

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department’s annual workload survey and are an aggregated figure over four separate one week periods—two from a parliamentary sitting week and two from non-sitting periods.

Our People

Achieving a just and secure society

Sarona Rimoni, Office of Legislative Drafting and Publishing.

Legislative drafter Sarona Rimoni has big plans for change when she returns home to Samoa after taking part in the Legislative Drafting Pairing Program. Sarona has spent 10 weeks in the Office of Legislative Drafting and Publishing (OLDP) within the Attorney-General’s Department.

The 30-year-old Senior State Solicitor of the Samoan Attorney General’s Office describes it as an ‘eye-opening’ experience that has taught her about drafting legislative instruments as well as office administrative procedures.

‘The continuing legal education sessions and the one-on-one sessions with senior drafters have been invaluable and so have the lunchtime drafters’ meetings.’

Training with the Senate, the Department of the Prime Minister and Cabinet and the Australian Government Solicitor was also arranged for Sarona Rimoni.

‘I will be putting these skills to use when I return to the Office of the Attorney General in Samoa. I have so many ideas about how our office systems back home can be improved based on what I’ve learnt from my experience with OLDP.’

There are also plans for two Attorney- General’s Department employees, Patrick Dodgson and Paul Seymour, to visit Samoa to give on-the-ground help with drafting and computer technology.

Sarona Rimoni’s training is part of the Department’s Pacific Legal Knowledge Program, which is run by the Anti-Money Laundering Assistance Team (AMLAT) and Pacific Unit. The program is aimed at improving international legal cooperation and legislative drafting in the Pacific. The AMLAT and Pacific Unit in collaboration with OLDP developed the Legislative Drafting Pairing Program, in which Sarona is the first participant.

OLDP has been providing long distance assistance for a decade but understands this doesn’t fill all the gaps and so has embarked on placements for trainee drafters.

In July 2006, the Department also hosted 24 legal officers from 12 Pacific Island nations to a week-long legislative drafting workshop as part of its Pacific Legal Knowledge Program.

And in the following June, Patrick Dodgson joined drafters from 11 other Pacific countries in Port Vila, Vanuatu for the first Pacific Islands Drafters Forum on Legislative Drafting. Sponsored by the Commonwealth Secretariat, it drew together lawyers from nine forum island countries plus New Zealand and Australia to promote the development of sustainable governance infrastructure in the region.

Senior drafter with OLDP Marjorie Todd is another officer working on the Department’s capacity building programs, which recognise that having enough high quality legislative drafters is one of the most pressing legal needs in the region. She’s been involved in a scoping process in Indonesia identifying projects that would benefit from OLDP assistance.

As Katalaina Sapolu, spokesperson from the Commonwealth Secretariat, explains, such support for the development of the legislative drafting capacity within the government sector is essential.

‘Good governance and the rule of law are the foundation stones of modern, successful societies and preparing better legislation is part of good governance.’

Output 1.4

Legal services and policy advice on international law

Summary

The Office of International Law provided legal services and advice on international law that contributed to the welfare of, and promoted the interests of, the Australian community directly and through the implementation of international law in Australian domestic law. We provided legal advice on the broad spectrum of international law issues and represented Australia in the negotiation of a wide range of treaties and other legal instruments. The advice we provided during the year contributed not only to achieving the desired outcomes for the Department but also to achieving those of other departments.

Major achievements

General international law and advisings

The Office of International Law provided advice on government initiatives with an international law element. These included advice on Australia’s overseas deployments (rules of engagement, status of forces, immunities and other operational law issues), border control, fisheries, international environmental law, anti-terrorism issues, treaties concerning extradition and mutual assistance, air services agreements, matters related to outer space, nuclear issues, statelessness, tax treaties, import risk analyses, amendments to the Copyright Act 1968 (particularly those concerning technological protection measures) and constitutional advice on the application of the external affairs power.

The Attorney-General’s Department leads the Australian delegation to the Commission on the Limits of the Continental Shelf, which is considering Australia’s submission supporting its sovereign rights over an additional 3.4 million square kilometres of continental shelf. Australia made its final presentation to the Commission in March 2007 and we are now awaiting recommendations of the Commission. We also assisted in bringing into force the Agreement relating to the Unitisation of the Sunrise and Troubador Fields and the Treaty on Certain Maritime Arrangements in the Timor Sea, which will provide a firm foundation for the exploration of petroleum resources in the Timor Sea.

International trade law

We worked closely with other areas of the Attorney-General’s Department and the Department of Foreign Affairs and Trade in the negotiation of free trade agreements. Apart from the subject areas that are the responsibility of this Department such as copyright, e-commerce and legal services, we have provided advice in the areas of investment, dispute resolution and general framework issues. Over the past year, negotiations have continued with China and Malaysia and, in conjunction with New Zealand, the Association of Southeast Asian Nations (ASEAN). The first round of negotiations was held with Japan.

We have also worked closely with DFAT in advancing Australia’s interests in the conduct of World Trade Organization (WTO) dispute settlement. We provided assistance in the settling of a quarantine dispute taken by the European Community against Australia and in the preparation of a number of submissions by Australia in WTO cases in which Australia is a third party. These have included the United States—Cotton, Turkey—Rice, China—Auto Parts, Chile—Price Brand, US—Boeing, EC—Airbus, and Brazil—Tyres.

Together with the Law Council of Australia, we convened the 2007 International Trade Law Symposium. We have also led the investment protection negotiations with the Russian Federation.

During the course of the year, the Trade Measures Review Officer (TMRO) has received 10 applications for review of decisions on the application of dumping or countervailing duties. In all cases, the TMRO has satisfied the statutory deadlines identified in the Customs Act 1901.

International security

Ms Julie Atwell, a Principal Legal Officer in the Office of International Law, was appointed as Special Rapporteur by the International Civil Aviation Organization (ICAO) to assist in the development of an international instrument to cover emerging threats to civil aviation, including the use of an aircraft as a weapon. The draft amendments to relevant conventions and the accompanying paper were to be considered by an ICAO conference in July 2007.

The Office of International Law also participated in the nuclear safeguards negotiations with both China and the Russian Federation. Advice has been provided also on the international legal aspects of the Proliferation Security Initiative (PSI). This has included participation in a number of international desktop counter-proliferation exercises and operational experts meetings.

Human rights

Australia’s next report under the Convention on the Rights of the Child is due on 15 January 2008 and a draft report has been circulated to government stakeholders for comment. Australia’s report under the International Covenant on Civil and Political Rights (ICCPR), while overdue, has been prepared in the form of an expanded core document in accordance with the Harmonised Guidelines issued by the United Nations for the preparation of reports to UN bodies. It will be tabled in the Parliament and lodged with the United Nations early in the new financial year. Also, preparations are in train for Australia’s appearance before the committee established under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in November 2007.

During the year, Australia received four individual communications under the ICCPR, two under the CAT and one under the Convention on the Elimination of All Forms of Racial Discrimination. The Human Rights Committee, which monitors implementation of the ICCPR, adopted views on seven communications relating to Australia. Of those seven, three were ruled inadmissible, no violation was found in relation to one, and the Committee concluded that there were violations in relation to three others. Of those three, two were immigration matters and one involved freedom of speech. The Government has responded to all three adverse views. We also participated in the negotiation of the UN Convention on the Rights of Persons with Disabilities, which was adopted on 30 March 2007.

Challenges

International law has an ever-increasing role both in relation to Australia’s interactions with other countries and in relation to domestic activities.

New issues requiring both international legal and policy advice frequently arise and there is a need to meet the demand for that advice while also maintaining progress in longer term projects.

Outlook

There will be a continued demand for international law advice across a wide spectrum of government activity.

This advice will be provided in conjunction with fellow providers, such as the Legal Office in DFAT and the Australian Government Solicitor, and in cooperation with our stakeholders.

Areas likely to receive high priority include ongoing advice and assistance on Australia’s deployments overseas, timely and accurate advice on issues of international law, the negotiation of free trade agreements, the prosecution of WTO litigation, challenges to Australia’s security, protection of Australia’s borders and maritime zones, and implementation of human rights.

Performance indicators

(Quantitative and qualitative)

Output 1.4

Legal services and policy advice on international law

Our People

Achieving a just and secure society

Left to right: Mark Jennings, Camille Goodman and Jasmine Tsen, Office of International Law.

Navigating differences in international time zones meant a day at the office could end with midnight teleconference hook-ups for lawyers from the Department’s Office of International Law as they raced against time to meet a tight court deadline in the United States.

OIL Senior Counsel Mark Jennings was responsible for coordinating the Australian end of a joint amicus curiae (friend of the court) brief that involved him in roundthe- clock consultations with his colleagues Jasmine Tsen and Camille Goodman, Department of Foreign Affairs and Trade lawyers, the Australian missions in London and Washington, the British Foreign and Commonwealth Office and the Washington law firm Baker & Miller.

The case involved a class action in the United States brought by Papua New Guinea nationals seeking damages for acts allegedly committed by Rio Tinto during the Bougainville conflict. It was taken under the 1789 US Alien Tort Claims Act.

‘This Act has been interpreted as allowing Federal Courts in the United States to exercise jurisdiction over civil claims brought by non-US residents in respect of matters arising wholly outside the United States,’ Mark explained.

‘That means an action brought under the Act might have little, if any, connection to the United States. The Australian Government has been concerned about this broad, extraterritorial application of the Act with its potential to intrude on the sovereignty of other nations and to impact on their nationals.’

The Papua New Guinea plaintiffs’ claims were dismissed by the trial judge in the United States District Court. However, an appeal by the plaintiffs was upheld in the 9th Circuit Court of Appeals. In May 2007, Rio Tinto filed a petition seeking to have the appeal reheard. Soon after, Australia joined with the United Kingdom to launch a joint amicus brief in support of the rehearing.

Working to a tight deadline, the multinational team lodged the brief on 24 May. The 9th Circuit Court of Appeals has since ruled that it will rehear the appeal.

Output 1.5

Drafting of legislative and other instruments, maintenance of the Federal Register of Legislative Instruments, publication of legislative materials and provision of related legal services

Summary

The Department’s Office of Legislative Drafting and Publishing drafted the large volume of regulations required by the Government’s program, as well as a substantial volume of other instruments. It made considerable progress in 2006–07 on the capture and publishing of up-to-date Commonwealth legislation on the ComLaw web site. Advances were made in the management and registration of legislative instruments and compilations of legislative instruments on the new Federal Register of Legislative Instruments (FRLI), which is published on the ComLaw web site. We also arranged commercial printing and publishing of Commonwealth legislative materials at reasonable cost to the public, and produced and distributed the Government Notices series of the Commonwealth of Australia Gazette. These activities made a significant contribution to ensuring an equitable and accessible system of federal civil justice. Addressing the issue of its comparatively high proportion of inexperienced drafters, highlighted as a challenge in 2005–06, the Office introduced improved training packages for new staff and also increased its provision of training and drafting services to other countries in the region.

Major achievements

ComLaw and the Federal Register of Legislative Instruments

Continuing to bed down the ComLaw system, we made improvements to the new ComLaw web site (including FRLI) and managed the back-capture of existing legislative instruments. We monitored public feedback on the site, and made further enhancements to assist users of legislation. FRLI provides the public with quick and easy access to legislative instruments and related material through the Internet. All Commonwealth rule-making agencies are required to lodge new legislative instruments for registration as soon as practicable after making them, and to lodge for registration all existing instruments by the end of 2007.

We have worked with other agencies to ensure they fulfil their registration and back-capture obligations. We also further developed the IT system that manages lodgment and registration and provides the ComLaw web site. ComLaw is progressively replacing SCALEplus, although that web site still holds a large number of historical Acts and other instruments that have yet to be transferred to ComLaw.

Connected government

We introduced detailed training packages for client agencies to develop a more productive relationship by increasing clients’ awareness of the drafting process. Demand for our drafting and advising services remained high in 2006–07 (see Table 3). Traditional non-billable work included drafting Regulations and court rules, published in the Select Legislative Instruments series. We regularly received positive comments from clients about the quality of our legislative drafting services. The drafting workload saw a significant number of instruments for the Attorney-General’s portfolio. They included legislative instruments and administrative instruments such as appointments, delegations, authorisations and agreements. Other agencies with a high demand for instruments included the Department of Agriculture, Fisheries and Forestry, the Civil Aviation Safety Authority, the Department of Employment and Workplace Relations, the Family Court of Australia, the Federal Court of Australia, the Department of Health and Ageing, the Department of Immigration and Citizenship, the Treasury and the Department of Transport and Regional Services.

Drafting for 728 instruments (8,747 pages) was completed during 2006–07, as well as drafting on a significant number of matters that were discontinued or not completed during the period. Major projects included Regulations supporting workplace relations reforms, occupational health and safety reforms, and changes to superannuation and civil aviation safety rules, as well as Regulations dealing with new migration procedures. Court rules were required for bankruptcy reform, Regulations and rules were drafted for the Australia – New Zealand Therapeutic Products Authority, and fishery management plans were drafted.

Regional work

We provided services to other countries in the region on several occasions during the year. These included a high-level visit to Indonesia to provide assistance on drafting and related matters; drafting legislation for the government of Timor-Leste; giving drafting advice to countries in the Pacific region; and developing a possible ongoing program of assistance in legislative drafting for South Pacific drafters.

Challenges

An ongoing challenge, in common with all Australian drafting offices, is the retention and training of staff. We have introduced improved training packages for new staff to enhance their drafting skills.

As noted above, our resources are also being called on for more assistance to the Asian and South Pacific regions, which will require creative planning and solutions.

Another important challenge is continuing the program of improvements and enhancements to the new ComLaw web site (including FRLI) and managing the back-capture of existing legislative instruments.

The Legislative Instruments Act requires that a review of the Act be conducted in 2008. The arrangements for the review must be completed by March 2008.

Outlook

We will continue to bed down the ComLaw system, monitor public feedback on the web site, and make further improvements and enhancements to assist users of legislation. We expect to increase our involvement in providing training and drafting services to other countries in the region.

Performance indicators

(Quantitative and qualitative)

Output 1.5

Drafting of legislative and other instruments, maintenance of the Federal Register of Legislative Instruments, publication of legislative materials and provision of related legal services

Our People

Achieving a just and secure society

Left to right: Bronwyn Leslie, Frances Brown, Jamie Lowe, Trevor Given,Tracy Brennan and Kieran Murphy, AusCheck.

Whenever members of the AusCheck legal team catch a plane, they pay close attention to the ground staff working on the tarmac, the security staff inside the airport and the onboard flight crew.

The team pays attention to airport workers because since January 2006, they have been developing the legal framework to support AusCheck, a new Division in the Attorney-General’s Department. AusCheck is responsible for coordinating background checks on applicants for Aviation Security Identity Cards (ASICs) and Maritime Security Identification Cards (MSICs). These cards are mandatory for anyone working in the secure areas of air and sea ports.

‘While developing the framework, the whole team was acutely aware of the intrusiveness of background checking,’ AusCheck’s Policy and Legal Director Frances Brown said. ‘But then we started noticing how many people actually have access to airport security areas, we realised how important AusCheck’s background checking responsibilities are.’

Background checking involves obtaining information from a number of government agencies, including CrimTrac, ASIO, the Australian Federal Police, and (when required) the Department of Immigration and Citizenship.

To better protect the people working in air and sea ports needing background checks, the team invited an independent privacy specialist to assess AusCheck’s proposed legislative framework and business processes.

‘The privacy specialist brought home the effect that AusCheck’s work will have on the everyday lives of people employed in the aviation and maritime industries,’ Frances said. ‘The specialist showed us how we could structure the legislative framework to better protect people needing background checks, including by providing them with information in clear, accessible language.’

In addition to conducting background checks, AusCheck will also be responsible for maintaining a database of all ASIC and MSIC applicants and cardholders. This will allow immediate verification of whether a card was issued to the person presenting it and whether that card is valid. It will also be used in responding to a national security incident involving aviation or maritime facilities.

The legal team worked alongside a team of IT specialists responsible for creating the new AusCheck IT system.

‘In similar projects, either the legal framework or the IT system has come first,’ Frances explained. ‘Creating both at the same time was challenging as the legal and IT frameworks had to complement each other. It also had to mesh with the existing ASIC and MSIC schemes run by the Department of Transport and Regional Services.’

‘Thanks to lots of goodwill and a clear understanding of our goals, we were able to overcome the obstacles of having two teams that spoke different technical languages.’

AusCheck commenced operations in September 2007.

Output 1.6

Legal services and policy advice on native title

Summary

The Department in 2006–07 continued encouraging all parties in the native title system to work towards increasing and improving the resolution of native title issues. The Native Title Unit in the Classification, Legal Services and Native Title Division—which has responsibility for this output—did this through progressing a package of reforms to the native title system, providing advice and education about native title, and participating in the resolution of native title claims.

The Australian Government made significant changes to the Native Title Act 1993. It was also party to two significant consent determinations, in March and May 2007. We successfully managed consultations and information sharing, and effectively provided legal and policy advice to the Government, other departments and agencies. Through this output, we contributed to the overall outcome of ensuring an equitable and accessible system of federal civil justice.

Major achievements

Native title determination applications

The Government seeks to resolve matters through mediation before the National Native Title Tribunal where possible. Where mediation is successful, the Government seeks to secure a consent determination that is certain, transparent, consistent with the common law and in compliance with the requirements of the Native Title Act. This helps promote fair, effective and enduring outcomes for the native title system.

Determinations

During the year, the Government was a party to two consent determinations, Gunditjmara in Victoria, and Ngarla in Western Australia.

The Gunditjmara consent determination resulted in the second formal recognition of native title in Victoria. Under the determination, non-exclusive native title rights were recognised over more than 1,300 square kilometres of Crown land in the Western District of Victoria, extending 100 metres beyond the low-water mark into the sea. Justice North of the Federal Court made the Gunditjmara consent determination at a ceremonial on-country hearing in Mt Eccles National Park on 30 March 2007.

The Ngarla consent determination resulted in the determination of native title in the Pilbara region of Western Australia. It recognised non-exclusive native title rights over land to the east of Port Hedland and non-exclusive rights over the intertidal zone of the adjoining sea. The Ngarla claim was determined by consent at a ceremonial on-country hearing of the Federal Court near the De Grey River on 30 May 2007.

With the assistance of the Australian Government Solicitor, we worked closely with the claimants, the Victorian and Western Australian governments and other respondent parties to secure resolution of these two claims. The Australian Government’s consideration of the Gunditjmara and Ngarla claims was assisted by the provision of position papers by the Victorian and Western Australian governments respectively. The papers outlined the reasons the State governments were satisfied the requirements of the Native Title Act 1993 had been met. The Government continues to encourage transparent practices in the resolution of native title issues, and the production of position papers can be an effective means of promoting transparency.

Unresolved claims

We also continued working to resolve a number of claims, including the Kuuku Ya’u, Thalanyji, Dambimangari and Uunguu claims and the Torres Strait Regional Sea Claim. The Government also participated in a number of Full Federal Court appeals, including Yulara, Bardi and Jawi, Rubibi, and the appeal in the metropolitan Perth portion of the Single Noongar claim. Following the intervention of the Attorney-General, the Australian Government was involved in the appeal of the Larrakia native title claim, and was involved in the Northern Land Council’s application for special leave to appeal to the High Court in this matter. The Larrakia, Rubibi and Single Noongar claims are over metropolitan areas. Decisions in these matters may bring greater clarity and certainty to the native title system and assist parties to negotiate settlements in other matters.

Court decisions

A number of Federal Court and Full Federal Court decisions were handed down in 2006–07. In the Single Noongar claim, the decision of Justice Wilcox of the Federal Court on 19 September 2006 held that native title may exist in metropolitan Perth. On 5 February 2007, Justice Lindgren dismissed the Wongatha claim and seven other claims, to the extent that they overlapped with the Wongatha claim area, concluding that the claimants were not properly authorised in accordance with the Native Title Act 1993. The Blue Mud Bay (No 2) appeal decision was handed down on 2 March 2007, finding that exclusive native title rights did not exist over the intertidal zone. Non-native title aspects of that decision have been appealed to the High Court, with special leave being granted on 21 June 2007. The Ngarluma Yindjibarndi appeal was also determined by the Full Federal Court on 7 June 2007, holding among other things that there can be more than one Prescribed Body Corporate holding native title over an area.

Reforms to the native title system

The Government announced a package of reforms in September 2005 to improve the performance of all elements of the native title system. Since this announcement, we have overseen the development of a coordinated package of measures, in consultation with relevant stakeholders, to meet the Government’s objective of achieving better outcomes for all parties in the native title system without undermining existing native title rights.

Over the year, we have progressed each of these measures. In particular, the Native Title Amendment Act 2007, which came into effect on 15 April 2007, and the Native Title Amendment (Technical Amendments) Act 2007, which was passed by Parliament on 20 June 2007 and most of which will come into effect on 1 September 2007, will together implement the key legislative components of the reform package. The reforms comprise six elements:

1. A review of the institutional framework for resolving claims (the Claims Resolution Review)

The independent review of the claims resolution process, conducted by Mr Graham Hiley QC and Dr Ken Levy, considered ways to improve the efficiency and effectiveness of the claims resolution process and ways in which the National Native Title Tribunal and the Federal Court could work more effectively in managing and resolving native title claims.

On 31 March 2006, the consultants provided their report to the Attorney-General, who released the report, along with the Australian Government’s response, on 21 August 2006. The Native Title Amendment Act 2007 implemented most of the recommendations of the Claims Resolution Review that were accepted by government and required legislative amendments to the Native Title Act 1993.

We also progressed other non-legislative measures that were recommended in the Claims Resolution Review and accepted by the Government. For example, we are developing guidelines for the behaviour of parties in mediation in the National Native Title Tribunal. The content of the guidelines will be settled after consultation with stakeholders.

2. Measures to improve the effectiveness of Native Title Representative Bodies (NTRBs)

Native Title Representative Bodies provide assistance to native title holders and claimants. The Native Title Amendment Act and the Native Title Amendment (Technical Amendments) Act implement measures to enhance NTRB effectiveness and ensure that NTRBs operate in a responsive and accountable manner. The Department of Families, Community Services and Indigenous Affairs (FaCSIA) is primarily responsible for NTRBs and will be complementing these legislative measures with significant capacity-building activity funded under its NTRB capacity-building program. This program includes specialist training in governance, administrative law and contract management.

3. Measures to improve the effective functioning of Prescribed Bodies Corporate (PBCs)

We participated in an interagency steering committee that examined the current structures and processes of PBCs. The committee was tasked with identifying the basic function and resource needs of PBCs, and how those needs can be aligned with existing funding sources, and assessing the appropriateness of the existing statutory governance model for PBCs. The steering committee made 15 recommendations, all of which were accepted by government. Some of the recommendations were implemented or partially implemented through amendments made by the Native Title Amendment Act and the Native Title Amendment (Technical Amendments) Act. Other changes will be made through amending the Native Title (Prescribed Bodies Corporate) Regulations 1999 and administratively. Responsibility for the implementation of the recommendations made by the steering committee falls predominantly within the responsibilities of FaCSIA.

4. Technical amendments to the Native Title Act, primarily aimed at improving existing processes for native title litigation and negotiation

The Native Title Amendment (Technical Amendments) Act contains provisions that will clarify or improve provisions of the Native Title Act, while other provisions in the Act will reform existing procedures.

5. Changes to the existing arrangements for the provision of financial assistance to non-government respondents in native title claims

The revised Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act commenced operation on 1 January 2007. The Guidelines were revised to encourage agreement making, rather than litigation, to resolve native title issues. The Native Title Amendment Act allows for assistance to be provided in a wider range of circumstances for work in relation to the right-to-negotiate process. The implementation of this reform is the responsibility of the Indigenous Justice and Legal Assistance Division of this Department (see pages 118–35).

6. Measures to promote and encourage more transparency and communication between all parties in native title claims

This element acknowledges, in particular, the role that can be played by State and Territory governments in seeking to resolve native title issues and seeks to promote recognition by all parties of the value of transparency in obtaining timely and enduring outcomes. The Native Title Ministers’ Meetings, held in September 2005 and December 2006, have sought to promote more transparency and communication between all parties involved in native title claims. This aspect of the reforms will be ongoing.

Native title system coordination

The Native Title Unit manages a range of consultation and coordination mechanisms within the native title system. It also contributes to the development of government policy on a range of broader Indigenous issues including economic development and land tenure reform.

Native Title Ministers’ Meeting

The Attorney-General convened a meeting of Native Title Ministers in Canberra on 15 December 2006. States and Territory governments are key stakeholders in the native title system. All jurisdictions agreed to the meeting following the success of the inaugural meeting on 16 September 2005. The Native Title Unit provided secretariat support and convened meetings of officers from all jurisdictions to prepare for the Ministers’ meeting.

Ministers agreed to continue working together to secure better outcomes from the system. A key outcome of the meeting was the opportunity for the States and Territories to engage with the Australian Government about the Government’s proposed reforms to the native title system. In particular, discussion extended to the opportunities for governments to assist to progress claims more expeditiously through the system, including through more transparent practices.

Native title system coordination and consultation

The Native Title Unit provides the secretariat for, and chairs the meetings of, the Native Title Consultative Forum—one of the primary means by which the Government engages with stakeholders in the native title system. Representation includes the Federal Court, the National Native Title Tribunal, FaCSIA, the Indigenous Justice and Legal Assistance Division within the Department (which administers funding arrangements for respondents such as pastoralists, fishers and local government to appear in native title proceedings and negotiations), State and Territory governments, Native Title Representative Bodies, the Human Rights and Equal Opportunity Commission, and representatives from pastoral, fishing, mining and petroleum industries.

The Native Title Consultative Forum provides an opportunity for consultation and information sharing on native title issues. It is an important forum for disseminating information about the Government’s native title reforms program. The views of stakeholders also inform advice to government.

The Native Title Unit also provides the secretariat for, and chairs the meetings of, the Native Title Coordination Committee In addition to representatives of this Department, this committee consists of representatives from FaCSIA, the Federal Court and the NNTT. The committee monitors the performance of the native title system and advises government on improving its operation.

Economic development

The Native Title Unit has a continuing role in contributing to the whole-of-government approach to supporting and advancing economic development for Indigenous Australians.

Land tenure reform

The Native Title Unit has continued to work with FaCSIA and Indigenous Business Australia in progressing negotiations with State governments seeking the reform of Indigenous land tenure to enable Indigenous Australians to own their own homes on individually held title on Indigenous land.

Future acts

Future acts are acts that affect native title. The Division continued to provide legal policy advice to the Attorney-General on a range of native title matters including Indigenous Land Use Agreements. The number of registered agreements continued to increase, with 31 registered during the year and with 280 on the register as at 30 June 2007.

Advice was provided to departments regarding the native title implications of proposed legislative reforms including amendments to the Commonwealth Radioactive Waste Management Act 2005, the Torres Strait Fisheries Act 1984 and the proposed Water Bill.

Advice was also provided to assist departments and agencies to progress projects in a way that complies with the Native Title Act. This included advice on establishing facilities for the destruction of illegal fishing boats, on preliminary work for the proposed Square Kilometre Array Radio Telescope project and on the proposed expansion of the Department of Defence’s Cultana Training Area.

To assist in the early identification of proposals that might impact upon native title, the Native Title Unit participated in a number of inter-departmental committees, including committees with responsibilities for marine bioregional planning and the Uranium Industry Framework.

We continued to engage with Australian Government departments and agencies to increase awareness of the Australian Government’s obligations under the Native Title Act, including holding regular liaison meetings with Defence and presenting seminars aimed at educating officials about native title.

Evaluations/reviews

The Senate Standing Committee on Legal and Constitutional Affairs conducted inquiries into the two Native Title Bills, and reported, during the period. The Government adopted some of the recommendations from each report.

Challenges

The principal challenge in native title claims continues to be the time taken to reach effective and enduring resolutions of claims, of which there are currently just under 600. A further challenge for the Government is ensuring that the hearing of claims brings certainty and finality. This issue was highlighted by the dismissal of the Wongatha native title claim in February without a determination in respect of native title. The Wongatha claim is a significant claim in Western Australia that has been extensively litigated. There were 99 hearing days, and overall legal expenses are estimated to be in the millions of dollars. Although the claimants’ application was dismissed, the Government is pursuing finality in this matter through its non-claimant application.

There has been considerable appeal activity, in some cases reflecting perceptions of uncertainty in native title law, which has the potential to slow down the resolution of claims while they await decisions of higher courts.

The 2007 amendments to the Native Title Act will not resolve all the challenges in the native title system, where the behaviour of the parties is a key determinant of how matters progress. We will need to continue ongoing and effective dialogue and consultation, particularly with States and Territories, and with other stakeholders.

Maintaining ongoing agency awareness of the Native Title Act, so that agencies contact us early for advice, remains a challenge, particularly with turnover of staff in agencies, and we are looking at material we can provide to agencies to foster this awareness, as well as the manner in which we provide training.

Outlook

The Government continues to pursue further certainty in native title law by its participation in claims at first instance and on appeal. The Government will seek resolution of native title claims by agreement, where possible, and pursue practical ways to reduce uncertainty in the system, demonstrated by the maintenance of its non-claimant application in the Wongatha case.

We will continue to work on implementing the Government’s package of reforms to the native title system. A key priority is to continue encouraging all stakeholders to take advantage of the opportunities presented by the reforms to facilitate the expedited and effective resolution of claims, where possible by agreement.

We will continue to monitor the native title system, engage with government and non-government stakeholders and engage in policy development to identify measures to facilitate economic development and increased utilisation of land by Indigenous Australians.

During 2007–08, the NTCC, with secretariat support furnished by the Native Title Unit, will review funding for the native title system. Additional funding for the system of $72.9 million, over four years, lapses during 2008–09.

We will continue to provide advice and guidance to Australian Government departments and agencies to assist them to meet their obligations under the Native Title Act.

Performance indicators

(Quantitative and qualitative)

Output 1.6

Legal services and policy advice on native title

* The numbers of advice provided by output have been derived from the Department’s annual workload survey and are an aggregated figure over four separate one week periods—two from a parliamentary sitting weeks and two from non-sitting periods. This number is the total for the Classification, Legal Services and Native Title Division.

Our People

Achieving a just and secure society

Caroline Fritsch, Indigenous Law and Justice Branch.

The Victorian and Federal governments, community groups, schools, police, sporting organisations, Sunraysia TAFE College and La Trobe University have joined forces in Mildura in north-west Victoria to give Indigenous children new hope.

The Hope, Opportunity, Purpose and Education Shared Responsibility Agreement (HOPE SRA) was created when the local community and schools decided they wanted to improve social and economic outcomes for Indigenous children.

The Attorney-General’s Department became involved when Caroline Fritsch, an out-posted officer with the Indigenous Law and Justice Branch, was approached by Mildura Primary School on behalf of the community to help design a project to reduce anti-social behaviour among Indigenous children.

Through multi-agency collaboration, it aims to support students and their families break the cycle of intergenerational disadvantage fuelled by poverty, unemployment, relationship breakdowns, substance abuse, domestic violence and poor education levels.

‘Mildura was recently classified as being the sixth poorest postcode in Australia. The HOPE SRA targets children and families from the Ambleside Indigenous community—being characterised by low income, high unemployment, criminal activity, community disharmony, large numbers of child protection notifications, and poor access to services,’ Caroline explained.

‘There’s genuine community concern that unless efforts are made to reduce anti-social behaviour among children, that the next generation will perpetuate the cycle of disadvantage affecting the Ambleside community,’ she said.

The HOPE/SRA program aims to effect this change through sporting activities and connecting families with service provider networks.

Output 1.7

Legal services and policy advice on Indigenous law and justice and legal assistance, and the administration of related government programs

Summary

Supporting the provision of adequate legal assistance in remote and regional areas was a challenge in 2006–07 for the Indigenous Justice and Legal Assistance Division, which has responsibility for this output. Within the Division, the Indigenous Law and Justice Branch provides policy advice on Indigenous law and justice issues as well as developing, implementing and delivering programs for law and justice services for Indigenous Australians. The Legal Assistance Branch is responsible for the development, implementation and administration of Australian Government policy on legal aid, including management of the Legal Aid Program, the Commonwealth Community Legal Services program and statutory and non-statutory financial assistance schemes.

In 2006–07 we achieved our goal of increasing the number of Family Violence Prevention Legal Services (FVPLS) units from 26 to 31, providing additional specialist service for Indigenous Australians who are victims, or are at risk of family violence and/or sexual assault. Contracted service providers under the Indigenous Legal Aid Program were reviewed and assessed through formal reporting tools. We participated in mediation proceedings in the United Kingdom, which resulted in the return of the remains of 17 deceased Indigenous Australians, in accordance with the wishes of their community in Tasmania. New activities were introduced in the prevention, diversion, rehabilitation and restorative justice area. Funding was provided for a Brisbane pilot of the successful court support network operating in Victoria to assist family law litigants. Community legal centres had their IT systems upgraded and were given funding for various IT and training initiatives. There were five reviews and evaluations of programs under this output. Work will commence in 2007–08 on the renegotiation of legal aid agreements with legal aid commissions to replace the current four year agreements, which are due to expire in December 2008.

Major achievements

Family violence prevention

The increase in the number of FVPLS units from 26 to 31 improved access to legal services in remote and rural communities in New South Wales, South Australia, the Northern Territory and Western Australia. The new FVPLS units are located in Broome, Port Lincoln, Broken Hill and Tennant Creek local government areas and Albany, covering the south-west region of Western Australia (see Figure 3).

The Division faced the challenge of finding suitable, well functioning organisations to provide support for the five new units. A call for applications through an open and competitive procurement process invited organisations to deliver services on behalf of the Department. Emphasis was placed on prevention, raising community awareness, and capacity building for individuals and communities. We restructured the FVPLS section to provide greater support to the units and governing bodies so that they could develop the necessary skills, and to ensure they were sustainable. This ensured the units had a better understanding of the Government’s requirements of them as service providers, as well as financial management, accountability and governance requirements.

Indigenous legal aid

Contracted service providers for the Indigenous Legal Aid Program are required to provide a range of reports to the Department to enable it to monitor their performance and accountability (see Figure 4). In 2006–07 the Department worked with these providers to improve their compliance with reporting timeframes. The quality of service delivery was assessed through client satisfaction surveys and service standard audit reports. All contracts expire on 30 June 2008.

Under the program $1.1 million was allocated to pilot the Expensive Indigenous Criminal Case Fund scheme from February to June 2007. The scheme addressed the resource demands placed on Indigenous legal aid service providers when managing expensive cases.

In 2006 the British Natural History Museum agreed to return the remains of 17 deceased Indigenous Tasmanians from its collection to the Tasmanian Aboriginal Centre, appointed as administrator of the remains by the Tasmanian Supreme Court. The Centre was granted an injunction by the United Kingdom High Court to prevent the museum undertaking any invasive testing on the remains prior to their return and applied to the Department under its Indigenous Test Case Guidelines for funding for litigation. The Australian Government intervened in the High Court proceedings in support of the Centre’s position that the remains should be returned in accordance with their wishes.

The Tasmanian Aboriginal Centre and the museum agreed to mediation and Sir Laurence Street AC, KCMG, QC, a former Chief Justice of New South Wales, and Lord Woolf, a former Chief Justice of England and Wales, were engaged as co-mediators. The Australian Government participated in the mediation in London in order to assist the parties in resolving the issues. The mediation was successful and the remains were repatriated to the community in Tasmania in May 2007. An officer from the Division represented the Australian Government in the proceedings.

Figure 3: Indigenous justice legal services across Australia at 30 June 2007

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Figure 4: Legal aid services across Australia at 30 June 2007

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Indigenous solutions and service delivery

Annual program funding agreements for the Prevention, Diversion, Rehabilitation and Restorative Justice Program were negotiated and implemented in 2006–07. This was accomplished within the whole-of-government Indigenous service delivery framework, in the timeframes agreed between participating Australian Government agencies. The majority of prevention, diversion, rehabilitation and restorative justice program service providers complied with the reporting requirements and timeframes set out in the program funding agreements.

In 2006–07 the Department allocated funds to 25 new Shared Responsibility Agreements (SRAs) through the Prevention, Diversion, Rehabilitation and Restorative Justice Program. Total funding committed was $1,446,488. The communities that entered into SRAs with the Department primarily developed youth related projects with an emphasis on prevention and restorative justice initiatives. For example, the Hope, Opportunity, Purpose and Education Shared Responsibility Agreement (HOPE SRA) developed activities to re-engage young people at risk of coming into contact with the criminal justice system through participating in activities, including the creation of individual aspirational plans.

Indigenous policy

A number of initiatives flowed from the intergovernmental Summit on Violence and Child Abuse in Indigenous Communities, held at the end of the previous reporting period on 26 June 2006. The Council of Australian Governments (COAG) agreed to progress changes to ensure that customary law, or cultural practice, does not excuse or lessen the seriousness of criminal behaviour. Victims and witnesses, particularly those in remote communities, were to be adequately protected and $4.23 million was provided for community legal education to help Indigenous people understand their legal and human rights and responsibilities. Another $500,000 was provided for the National Judicial College of Australia to deliver cultural awareness training to assist judges and magistrates to better understand Indigenous issues on sentencing, customary law and bail provisions.

Legal aid

The provision of family dispute resolution services by legal aid commissions increased by more than 9 per cent in 2006–07. Changes to the Commonwealth legal aid guidelines were agreed, with legal aid commissions to enable grants of assistance to be provided to separated families appealing child support decisions to the Social Security Appeals Tribunal. The Australian Government allocated additional funding of $5.2 million over four years in the 2007–08 Budget to enable these services to be provided. The new Legal Aid Reporting Initiative System became fully operational, enabling more efficient monitoring and evaluation of legal aid commission reports.

In 2006–07 $2.5 million was reimbursed to legal aid commissions from the Expensive Commonwealth Criminal Cases Fund. Legal aid commissions may apply for reimbursement from this fund for costs (usually over $40,000) incurred in major criminal prosecutions, for example on drug importation, national security, sexual slavery and people smuggling. The fund ensures that the commissions’ service capacity for other matters such as family law is not eroded by the high cost of criminal prosecutions. The Australian Government provided an additional $6.2 million over four years in the 2007–08 Budget for the fund.

An amendment to the Commonwealth Legal Aid Guidelines, relating to matters of national security, took effect on 4 July 2006. This amendment followed consultation with State and Territory legal aid commissions and brings legal aid requirements for matters involving national security information, into line with the National Security Information (Criminal and Civil Proceedings) Act 2004.

Community legal services

Community legal centres are community based, independent non-profit organisations that provide a range of assistance on legal and related matters to people on low incomes and those with special needs. Their services are complementary to those provided by legal aid commissions and the private legal profession. The Community Legal Services Section administers the Commonwealth Community Legal Services Program (CCLSP), the largest single source of funding for community legal centres in Australia. Most States also provide funding for community legal centres.

During the reporting period, the Department progressed initiatives aimed at improving the operation of the CCLSP. The Review of the NSW Community Legal Centres Funding Program, commissioned in 2004 by the Commonwealth and NSW Attorneys-General, was completed and released on 15 February 2007.

The Department rolled out an additional one-off $1 million in funds for training programs and IT improvements for the community legal services sector, including computer hardware upgrades, improved arrangements for IT support, trialing of low cost telecommunications technology, development of training materials for volunteers and management committee members, and updated legal library resources. These initiatives are aimed at easing centres’ operational burdens to maximise service delivery. In December 2006, the Department also completed a highly successful rollout of a new version of the Community Legal Services Information System. This system collects data about centres’ service provision and expenditure of CCLSP funds. The new version implemented a new feature which allows online upgrades reducing disruption to users as further upgrades or enhancements are made. Funding was also provided to the National Association of Community Legal Centres to deliver training on the new version of the system.

On 1 July 2006 we assumed administrative responsibility for the payment of interpreting services for the CCLSP funded community legal centres. Previously, this was administered by the then Department of Immigration and Multicultural Affairs (now the Department of Immigration and Citizenship). Maintaining access to translating and interpreting services ensured centres were able to service clients who are not fluent in spoken English.

We also administer funding for the National Pro Bono Resource Centre (NPBRC), and the Victorian Court Network (VCN). The NPBRC encourages and supports pro bono work in the legal profession by providing information and resources and assisting in the coordination of services. The VCN is a volunteer staffed, non-legal court support service operating throughout courts in Victoria, providing information, advice and referral services to people attending court. The Department funds the provision of these services at the Melbourne and Dandenong Registries of the Family Court of Australia and the Federal Magistrates Court. Community legal centres, and organisations like the NPBRC and the VCN, play a key role in helping to make the justice system more accessible.

During the reporting period, funding was provided to the VCN for a pilot court network program at the Brisbane registry of the Family and Federal Magistrates Courts. The objective is to trial the existing model of volunteer assistance being used in Victoria. The pilot will run until June 2008 and will include an evaluation of the effectiveness of the services provided.

Financial Assistance Scheme

We have progressed implementation of the recommendations from the Australian National Audit Office’s report in relation to the Native Title Respondent Funding Scheme. Stages 1 and 2 of enhancements to the Data and Workflow of Grants System (electronic database) have been implemented, enabling greater efficiencies in the administration of the program. Revised guidelines for the Scheme commenced on 1 January 2007. The revision of the Native Title Respondent Funding Scheme Guidelines was part of the broad package of reforms of the native title system implemented by the Government. In particular, the Guidelines have strengthened the focus on resolving native title claims through agreement making in preference to litigation.

The Department of the Treasury invited the Department to be on the Taxation Test Case Funding Review Panel. The relevant officers have contributed financial assistance expertise in assessing taxation test case funding applications.

Tables 4 and 5 give an overview of the workflow of the section.

Purchaser–provider arrangements

Funding for the provision of legal aid services under the Commonwealth legal aid program was distributed to legal aid commissions under the legal aid agreements. Performance has met the criteria specified under the performance indicators as described under the 2006–07 Portfolio Budget Statements.

Community legal centres continued their operations under three year service agreements, which will expire on 30 June 2008. All targets specified in the Portfolio Budget Statements 2006–07 have been met.

The Australian Government also has an agreement in place for the provision of State Program Manager services from the legal aid commissions in New South Wales, Victoria, Queensland, Western Australia and Tasmania, and from the Attorney-General’s Department in South Australia, to assist in the day-to-day management of the CCLSP in each State under a cooperative working relationship. The current agreement is for three years and expires on 30 June 2008. The Department liaised with State Program Managers regularly, through phone contact, regular meetings and specific purpose meetings, and collaborated with them on operational issues that arise nationally or within each State.

The National Pro Bono Resource Centre continued operations under a four year agreement due to expire on 30 June 2009. During the reporting period, the centre conducted a number of activities, including a National Conference on Access to Justice and Pro Bono in August 2006, and the launch of a National Pro Bono Aspirational Target, under which participating lawyers aspire to doing 35 hours of pro bono legal work a year. More information on the centre’s activities is available on its website www.nationalprobono.org.au.

The Department successfully negotiated agreements to contribute funding to the Victorian Court Network for continued operations in the Federal Magistrates and Family Courts in Victoria under a two year agreement expiring on 30 June 2008, and for the pilot in the Brisbane registry of the Family and Federal Magistrates Courts under an agreement also expiring on 30 June 2008. From 1 July 2006 to 31 March 2007, the Victorian Court Network provided 2,288 services to users of the Family and Federal Magistrates Courts in Victoria. From December 2006 to March 2007, the Brisbane pilot program provided 926 services to court users.

Two consultancies were undertaken during the reporting period. These were: (1) Malcolm Pascoe for the development of a new funding model for the Commonwealth Community Legal Services Program; and (2) Enmark Business Advisors for financial management services to assist a centre in their financial management practices. Both were in progress at the end of the reporting period.

Evaluations and reviews

Indigenous solutions and service delivery

The Department’s Prevention, Diversion, Rehabilitation and Restorative Justice Program underwent a performance audit as a part of the Office of Evaluation and Audit’s 2006–07 program. The Indigenous Law and Justice Branch was awaiting the draft performance audit report as at 30 June 2007.

Review of remuneration for private legal practitioners providing legal aid services in Commonwealth family law matters

Work commenced on a review by the Department, in consultation with National Legal Aid and the Law Council of Australia, of legal aid commission remuneration arrangements for private legal practitioners providing legal aid services in family law matters. This followed a study of private practitioner participation in the legal aid market in Australia.

National evaluation of family dispute resolution services in legal aid commissions

The Department went to open tender seeking a consultant to undertake a national evaluation of family dispute resolution services in legal aid commissions. This evaluation will be undertaken during the 2007–08 financial year.

Review of NSW community legal centres

A review of the Community Legal Services Program in New South Wales was commissioned in 2004 by the Commonwealth and NSW Attorneys-General. The review was conducted by a steering committee of representatives from the Australian Government, the NSW Government, the NSW community legal services sector, the NSW Council of Social Services, and the Law Society of New South Wales, with assistance from the consulting firm, Westwood Spice. The review was completed and a report released on 15 February 2007. The review found that the program in New South Wales was sound, well conceived and well administered. The final report made 62 recommendations on a range of issues affecting the program. New South Wales officials and stakeholders have begun implementing some recommendations, but are waiting on the outcomes of the review of the Commonwealth Community Legal Services Program currently under way before proceeding further with implementation. The NSW review will provide a valuable source of information for the Review.

Review of the Commonwealth Community Legal Services Program

This review was being finalised at the end of the reporting period. Input was sought from the State Program Managers, the States and Territories and from the National Association of Community Legal Centres, the national peak body for the community legal services sector.

Evaluation of the Brisbane pilot court network

As part of the funding agreement for the pilot, it was agreed that an evaluation would be conducted, comprising initial benchmarking and an evaluation of the pilot’s impact midway through its term. The evaluation was still under way at 30 June 2007.

Challenges

Family violence prevention

Finding appropriate staff such as sexual assault counsellors and solicitors in remote and rural Australia has limited the effectiveness of services in some areas. The shortage was addressed through a national recruitment drive for service providers.

Governance issues in funded corporations led to challenges in service delivery in some communities. This was addressed through governance training for incorporated units and planning for an external review of units and service delivery in the 2007–08 financial year.

Indigenous legal aid

The high level of client demand on legal service providers under the Legal Aid for Indigenous Australians program was an ongoing issue in 2006–07. The Department provided additional funding to service providers to help address the impact of significant one-off costs on general service delivery. Assistance included funding for capital costs and the establishment of a pilot Expensive Indigenous Criminal Cases fund.

Legal aid

Following research indicating that private practitioners were withdrawing from the legal aid market, largely for reasons associated with remuneration and administrative processes, the Department consulted with legal aid commissions and the Law Council of Australia on options to address these issues. To cope with the impact of the decline in participation of private practitioners on legal aid services in regional Australia, the Australian Government provided an additional $8.3 million over four years in the 2007–08 Budget for the Regional Innovations Program for Legal Services.

Community legal centres

A challenge facing some organisations in the sector is to maintain viability in the face of rising operational costs. Increases in rent and salary expectations make it difficult for community legal centres to continue full-time operation, particularly in rural and remote areas. In particular, some centres are struggling to attract and retain suitably qualified legal professional staff. Strategies for dealing with this were being pursued through collaborative efforts between stakeholders in the sector, and were also being investigated in the course of the review of the CCLSP. The review will consider ways in which program management and administration can be simplified.

We will continue to monitor stakeholder response to the revised Native Title Respondent Funding Scheme Guidelines and the impact of the requirements of the revised Guidelines on overall workflow. Training and development of legal officers will continue to ensure consistency of decision making under the various schemes of financial assistance administered by the Division.

Outlook

A priority for the Division will be the implementation of measures under the Northern Territory Emergency Response to protect Indigenous children, including expanding night patrol services, additional funding for the Aboriginal Interpreter Service and increased legal assistance through funded legal service providers in the Northern Territory.

Family violence prevention

The community legal education initiative will be implemented in the 2007–08 financial year to provide Indigenous people, particularly women and children, with an understanding of their legal and human rights, and responsibilities.

Indigenous legal aid

A key objective for 2007–08 will be to settle three year service provider contracts under the Legal Aid for Indigenous Australians Program for 2008–11. This process will involve consultation with current service providers and other stakeholders and a review of the funding allocation model. The Department’s capacity to monitor the performance of contracted organisations in 2007–08 will be enhanced through the use of a new data collection system for the program, the Indicator Reporting Information System.

Indigenous policy

In the year ahead the Department plans to release the consultative draft of the National Indigenous Law and Justice Strategy to all stakeholders and to implement the framework. It will also support the work of the National Aboriginal Justice Advisory Committee.

Indigenous solutions and service delivery

There will be continued involvement in the rollout of the Petrol Sniffing Strategy, expanded to areas of the East Kimberley in Western Australia. There will be participation in the Community Development Employment Project changes in building an Indigenous workforce in government service delivery areas. The Department has received $8.6 million over four years, with the initiative to commence 1 July 2007, creating 117 jobs in night patrol services.

Legal aid

Work will commence during 2007–08 on the renegotiation of legal aid agreements with the legal aid commissions to replace the current four year agreements, which are scheduled to expire in December 2008.

Community legal centres

We will work towards completion of the CCLSP review. It hopes to address challenges facing the CCLSP within the context of completing, and where approved, implementing the recommendations of the review. Current service agreements with centres are due to expire in June 2008, so new agreements will be negotiated. These new agreements will take into consideration the conclusions of the CCLSP review.

Financial assistance

There will be development and standardisation of guidelines for all non-native title schemes as part of ongoing internal monitoring of the operation of all financial assistance schemes.

Performance indicators

(Quantitative and qualitative)

Output 1.7

Legal services and policy advice on Indigenous law and justice and legal assistance, and the administration of related government programs

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

** The numbers of advice provided by output have been derived from the Department’s annual workload survey and are an aggregated figure over four separate one-week periods—two from a parliamentary sitting week and two from non‑sitting periods.

Performance information for Outcome 1 administered items

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Date Created: Thursday, 11 October 2007
Last Modified: Tuesday, 19 July 2011
Authorised By: Branch Head, Strategic Communication Branch
Maintainer: Strategic Communication Branch