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Attorney-General's Department - Report - Year - 1981-82


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The Parliament of the Commonwealth o f Australia

ATTORNEY-GENERALS DEPARTM ENT

Annual Report

1981-82

Presented by Command 14 October 1982

Ordered to be printed 27 October 1982

Parliamentary Paper No. 262/1982

Attorney- General’s Department

Annual Report 1981-82

Attorney-General’s Department

Annual Report 1981-82

Australian Government Publishing Service Canberra 1982

(g Commonwealth of Australia 1982 ISSN 0158-1813

Printed by Canberra Publishing and Printing C°-

Canberra, A.C.T. September 1982

Dear Acting Attorney-General, I have pleasure in submitting the Annual Report of the Attorney-General's Department for the year 1 July 1981 to 30 June 1982.

The Hon. N. A. Brown, Q.C.,M.P. Acting Attorney-General Parliament House

Canberra, A.C.T., 2600

Yours faithfully,

(Alan R. Neaves) Secretary

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Introduction

This is the fourth annual report of the Attorney-General’s Department. It refers to the activities of the Department during the year 1 July 1981 to 30June 1982. The organisation of the Department as at 30 June 1982 is shown on the chart reproduced as Appendix 3. The Department consists of ten Divisions organised

along functional lines and a number of Branches. The changes in the organ­ isation of the Department reflect changes in administrative arrangements published in the Commonwealth of Australia Gazette dated 7 May 1982. The relevant extract from the administrative arrangements is reproduced at

Appendix 2. That extract varies from the extract published as Appendix 1 to the Annual Report 1980-81 in that the list of principal matters dealt with now includes Business practices, Bankruptcy and insolvency and Consumer affairs and the list of enactments administered by the Attorney-General now includes the whole of the Bankruptcy Act 1966, the Companies Act 1981, the Companies (Acquisition of Shares) Act 1980, the Companies (Acquisition of Shares-Fees) Act

1980, the Companies (Fees) Act 1981, the Companies (Transitional Provisions) Act 1981, the Companies (Interpretation and Miscellaneous Provisions) Act 1980, Part VI of the Complaints (Australian Federal Police) Act 1981, the Crimes (Currency) Act 1981, the Crown Debts (Priority) Act 1981, the Domicile Act 1982, the Federal Proceedings (Costs) Act 1981, the Freedom of Information Act 1982, the Human Rights Commission Act 1981, the National Companies and Securities Act 1979, the

Securities Industry Act 1980, the Securities Industry (Fees) Act 1980 and the Trade Practices Act 1974 (except to the extent administered by the Minister for Transport and Construction). At 30 June 1982 the total full-time operative staff of the Department was 2280

officers including 485 lawyers. The corresponding figures at 30 June 1981 were 2011 and 496. This report follows the format developed in previous reports of dealing with the activities of the Department on a Division by Division basis, with separate chapters to deal with other specialist activities outside the main Divisional structure. In relation to the Corporate Affairs Division and the Trade Practices and Consumer Affairs Division the report deals with activities extending over

the whole of the year although those Divisions did not fall within the Attorney- General’s responsibility until 7 May 1982 (see Chapters 3 and 9). A significant event during the year was the negotiation of the bilateral

agreement with the United States designed to ensure that antitrust enforcement by that country will take account of and have proper regard to the policies of the Australian Government. The agreement was signed in Washington on 29 June 1982 by the Attorney-General on behalf of the Australian Government (see

Chapter 2). Another significant event during the year was the enactment of the Freedom of Information Act 1982. The Department has devoted resources to activities designed to create an awareness in the public sector of what the legislation

contains and in preparing - in a wider framework of consultative groups and

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task forces established on a service-wide and inter-agency basis - for its imple­ mentation (see Chapter 5). On 10 December 1981 the Human Rights Commission Act 1981 came into effect and the Human Rights Commission, under the Chairmanship of the Honourable Justice Dame Roma Mitchell, D.B.E., commenced operation. The Commission subsumed the activities of the Human Rights Bureau which had

been established on 5 August 1980 by administrative directive of the Attorney- General (see Chapters 6 and 12). During the year the first volume of selected opinions of Attomeys-General and Solicitors-General of the Commonwealth, covering the period 1901-14 was published and was favourably received.

The ninth International Trade Law Seminar organised by the Department was held in May 1982. These seminars are designed to inform Australian businessmen and lawyers of developments in the field of international trade law. The seminar was veiy well attended and the Department has been pressed to continue such seminars on an annual basis (see Chapter 2).

Details of significant litigation in which the Commonwealth was concerned during the year are set out in Chapter 4. That chapter also contains details of litigation arising out of the Administrative Decisions (Judicial Review) Act 1977 (see Chapter 5).

The A.C.T. Legislation Branch of the Legislative Drafting Division has continued to meet the demands made upon it for the drafting of Ordinances and regulations for the Territory. The statement made in last year’s Annual Report that, in practical terms, there is no backlog of drafting work for the Territory remains true (see Chapter 7).

On 1 July 1981 the Commonwealth Legal Aid Commission was abolished and it was replaced by the Commonwealth Legal Aid Council. On 1 September 1981 the Legal Aid Commission of Victoria commenced operations taking over from the Australian Legal Aid Office Division of the Department activities previously carried on in that State (see Chapter 8). The opportunity has been taken to publish as part of this report (see Appendix 5) revised means and needs test and contributions guidelines applied by the Australian Legal Aid Office with effect from 19 August 1981.

The construction of the Robert Garran Offices on National Circuit, Barton, is proceeding. Originally designed to accommodate the Department’s Central Office and the Office of Parliamentary Counsel, recent changes in adminis­ trative arrangements will require some staff to be accommodated elsewhere when the building is occupied about mid 1983.

In October 1981 the second residential executive legal management con­ ference was held at Bowral, N.S.W. It was attended by most of the senior officers of the Central Office of the Department and a representative group from other areas. The themes chosen for the conference were the effective and intelligent application of technology and the further development of a system­ atised approach to the work of the Department (see Chapter 10).

During the year increased impetus was given to management training and to the legal professional development program. A profile and a statement of objectives of the Department were prepared (see Chapter 10 and Appendix 1). Implementation of the recommendations of the Joint Management Review of the Crown Solicitor’s Division has proceeded (see Chapter 2).

The Department’s resources were fully extended throughout the year. The problem of meeting all demands in a timely fashion adverted to in previous reports remains.

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1: Advisings Division

Functions of the Division

The Advisings Division provides legal advice to Ministers, departments and statutory bodies, and to committees and officers of the Parliament. Subjects of advice include constitutional, international, financial, electoral, environmental, broadcasting and television, shipping and Public Service law.

More particularly, its functions are:

• advising on the legal and constitutional aspects of Cabinet submissions; e advising departments and statutory bodies on the interpretation of Common­

wealth legislation and, as appropriate, territory legislation; • providing legal assistance to other depart­ ments in the development and implemen­

tation of government projects and policies; • attending conferences and committees on legal matters, including international

conferences and committees of the Par­ liament, and preparing briefs and sub­ missions; e assisting, as required, in the preparation and presentation of the Commonwealth's argument in major litigation, particularly

matters of a constitutional or internat­ ional character; e advising on, and co-ordinating proposals for, constitutional review; • undertaking legal research on matters of

interest to the Commonwealth, anno­ tating cases on the Constitution and preparing legal materials for publication;

and

» indexing and maintaining records of the opinions of the Attorney-General, the Solicitor-General and the Department, and preparing selected opinions for

publication.

Activities during 1981-82

During the year, the Advisings Division gave 818 written opinions, provided recorded oral advice in 204 matters and responded to 179 requests for research assistance. In addition, it examined and advised on numerous Cabinet submissions and provided legal advice and assistance in connection with many projects.

Some of the more important activities of the Division are described below.

Aboriginal Affairs Advice has been given in relation to questions arising in the administration of the Aboriginal Land Rights (Northern Territory) Act 1976.

The activities of the Aboriginal Development Commission have also been the subject of much legal advice. The ‘Makarrata- pro­ posals, which are still being developed, have involved the Division. Advice has also been given as to the legal position of Aboriginals

under Queensland law in relation to land.

Airlines The Division continued to provide advice in relation to the proposal for abolition of the

Australian National Airlines Commission and the establishment of a company to operate the airline services now operated by

the Commission. The Division also gave advice in relation to the changes made in the Airlines Agreement, and to the establishment

and operation of the Independent Air Fares Committee.

Annotated Australian Constitution The 1976-1979 Cumulative Supplement to The Australian Constitution Annotated (AGPS,

I

Canberra, 1980), which was published in March 1980, is being replaced in 1982 by a Supplement for the years 1976-80.

Australian Overseas Projects Corporation Advice has been given on several important questions concerning the scope of the Cor­ poration's powers.

Cabinet submissions Advice on Cabinet submissions included consideration, in respect of all submissions by any Minister (other than the Attorney- General) recommending the enactment of legislation, whether the Government’s objectives could be substantially achieved without legislation. This has substantially increased the workload for the Division.

Antarctica The Division participated in interdepart­ mental meetings on questions concerning Antarctica, including the proposed imple­ mentation of the Convention on the Con­ servation of Antarctic Marine Living Resources (signed in Canberra on 20 May

1980).

Borrowings The Division has continued to provide legal advice and assistance in relation to overseas borrowings by the Commonwealth. During the year it prepared legal opinions and settled the documentation in relation to a Euro-Yen

Bond Issue in Europe, two Public Bond Issues in Germany, two Bank Loans, two Private Placements and two Public Bond Issues in Switzerland, a Public Issue of Yen Bonds in Japan, and a Public Issue of Sterling Stock in the United Kingdom.

The Division provided advice throughout the year in relation to domestic borrowings by the Commonwealth and certain statutory authorities. This involved settling authoris­ ations and prospectuses in relation to such borrowings and advising on the interpret­ ation of relevant legislation.

Broadcasting and television The Division has continued to provide advice regarding the Broadcasting and Television Act 1942 and related legislation. It has also been consulted extensively by the Department of Communications on matters arising in rela­ tion to proposals concerning existing and new communications technology.

Citizenship and immigration Commonwealth citizenship and immigration legislation continued to be a subject of frequent advice by the Division.

Commonwealth places The operation of the Commonwealth Places (Application of Laws) Act 1970 (which applies the provisions of certain State laws as laws of the Commonwealth in places where, by reason of s. 52(i) of the Constitution, those State laws cannot apply of their own force) has been the subject of advice on a number of occasions.

Commonwealth Secretariat The Division provided legal material to the Legal Division of the Commonwealth Secre­ tariat, London and for the assistance of other member countries of the Commonwealth.

The Division continued to provide legal material to the Legal Division of the Sec­ retariat in connection with the publication of that Division’s Commonwealth Law Bulletin, a quarterly journal of legal developments in the

Commonwealth. The Division also provided the Legal Division of the Secretariat with material for that Division’s journal Common­ wealth Developments in Health Law, a new journal dealing with developments in health

law in the Commonwealth. The Division assisted the Commonwealth Secretariat in connection with a proposal by the Secretariat to establish a Commonwealth Regional Law Centre in the Southern Pacific Region to assist developing member countries | of the Commonwealth located in that Region with specific legal problems.

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Commonwealth-State consultations on treaties Legal measures to implement treaties raised a number of Commonwealth-State issues re­ quiring advice. The use of ‘federal clauses’

and 'federal statements' in relation to treaties remained an active issue throughout the year.

Constitutional Convention Assistance was provided to the Attorney- General in connection with the work of the Convention’s Standing Committee D and its subcommittees which were set up to examine

Parliamentary terms, conventions of the Constitution, jurisdictional questions and Territory representation in the Common­ wealth Parliament.

Continental shelf — application of laws The Division co-ordinated the development of proposals to apply laws relating to

customs, sales tax, quarantine and migration to installations on the continental shelf.

Electoral matters Advice has been given on various questions arising out of proposals for the amendment of electoral laws, and on the interpretation of

provisions relating to elections, including elections on Norfolk Island.

Environmental matters These matters continue to require frequent attention by the Division. Questions have arisen under the Environment Protection

(Impact of Proposals) Act 1974, the Environ­ ment Protection (Nuclear Codes) Act 1978, the National Parks and Wildlife Conservation Act 1975 and the Australian Heritage Commission

Act 1975.

External territories Laws and proposed laws of external

territories have again required consideration by the Division. The major part of this work has related to Norfolk Island.

Financial matters generally Advice was provided on numerous issues arising under the Financial Agreement, the Audit Act 1901, the Remuneration Tribunals

Act 1973, Superannuation legislation, the Defence Force Retirement Benefits legis­ lation, States Grants legislation, the Social Services Act 1947 and the Student Assistance

Act 1973, and to bodies such as the Export Development Grants Board.

Fisheries legislation The application of fisheries legislation to the 200-mile zone continued to raise a number of questions requiring legal advice, including constitutional advice on revenue-raising

measures.

Great Barrier Reef The Division provided legal advice on various matters relating to the development of the Great Barrier Reef Marine Park, and particularly in relation to the declaration of the second major section of the Marine Park (the Cairns Section) on 19 November 1981.

Health legislation The administration of the National Health Act 1953 and the Health Insurance Act 1973 and relevant regulations has led to the giving of advice on many legal issues.

Industrial relations Numerous questions as to the constitutional status of proposals for amendment of indus­ trial legislation, particularly the Conciliation and Arbitration Act 1904, have been dealt with

by the Division in the last twelve months.

Maritime boundaries Officers of the Division took part in a further round of negotiations with Indonesia. Work was also advanced on legal aspects of im­

plementing the Torres Strait Treaty and interim fisheries enforcement arrangements with Indonesia.

3

Northern Territory matters The Northern Territory (Self-Government) Act 1978 has been the subject of periodic advice throughout the year. Questions have also arisen on the application and effect of Northern Territory legislation on Common­ wealth activities in the Northern Territory.

Nuclear matters Advice was given on the development of proposals, in consultation with the*States, to provide a new legislative framework for nuclear activities in Australia. This work involved measures to give effect to Australia’s non-proliferation and safeguards oblig­ ations.

Opinions of Law Officers The Division has been engaged in the pre­ paration for publication of selected opinions of Attorneys-General and Solicitors-General of the Commonwealth. The first volume, covering the period 1901-14, was published in December 1981 and was officially ‘launched’ by the Attorney-General on 25

February 1982.

Parliamentary Committees Senior officers of the Division have given assistance to several Parliamentary Com­ mittees including:

• the Joint Parliamentary Committee on Public Accounts; and ■ • the Senate Select Committee on Par­ liament's Appropriations and Staffing.

Primary industry matters The extensive legislation relating to primary industries is a frequent subject of advice.

Within the last year questions concerning the control of meat exports, and generally as to the inspection for export purposes of primary products, have regularly arisen. Advice has also been given on legislation concerning the apple and pear, wool, wine, dried fruits and sugar industries.

Public Service matters Advice on a number of matters concerning the provisions of the Public Service Act 1922 and the Commonwealth Employees

(Redeployment and Retirement) Act 1979 was given to the Public Service Board and to statutory tribunals appointed under those Acts.

Review of Commonwealth Functions The implementation of the Commonwealth Functions (Statutes Review) Act 1981 gener­ ated a number of complex legal issues upon which advice was given throughout the year.

Shipping registration Advice was given in relation to Common­ wealth legislation providing for the regis­ tration of Australian ships to replace the procedures existing under the Merchant Shipping Act 1894 of the United Kingdom.

Tax exemptions for Australian films Advice was given to the Department of Home Affairs and Environment on the recent amendments, with respect to Australian I films, contained in Division 10BA of the Income Tax Assessment Act 1936, including

the granting of certificates by the Minister for Home Affairs and Environment under that Division.

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2: Business Affairs Division

Functions of the Division

The functions of the Business Affairs Division may be summarised as follows: (a) Administration of the following Acts: Acts Citation Act 1976

Acts Interpretation Act 1901 Administrative Changes (Consequential Provisions) Acts Amendments Incorporation Act 1905

Bills of Exchange Act 1909 Common Informers (Parliamentary Dis­ qualifications) Act 1975 Commonwealth Motor Vehicles (Liability)

Act 1959 Conciliation and Arbitration Act 1904 — sections 141A and 141B, section 168 and section 198 Copyright Act 1968 Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979

Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 Law Officers Act 1964 Law Reform Commission Act 1973 Marine Insurance Act 1909 Parliamentary Papers Act 1908

Statute Law Revision Acts Statutory Declarations Act 1959 Statutory Rules Publication Act 1903 (b) Consideration of legal and policy issues

in respect of bills of exchange, cheques and other negotiable instruments; copyright; commercial arbitration; the

interpretation of statutes; and the reports of the Law Reform Commission in regard to the reference on locus standi and class actions. (c) The consideration of legal and policy

issues arising in the formulation of any executive or legislative action considered necessary, where a foreign country, a

resident thereof or a country incorpor­ ated therein attempts to enforce laws of that country extraterritorially in such a way as to affect Australia's national interests. (d) the consideration of legal and policy

issues on trade law matters including the preparation of briefs for the arranging of Australian representation at and the responsibility for Australia's membership on: • the United Nations Commission on

International Trade Law

(UNCITRAL); • the International Institute for the Unification of Private Law

(UNIDROIT); and • the Hague Conference on Private International Law. (e) The provision of legal advice, including

assistance in the preparation of

legislation, with respect to: • banking; • bankruptcy; • company law; • foreign takeovers and foreign

investment; • foreign antitrust laws; • industrial law; • insurance;

• intellectual and industrial property; • securities law; and e trade practices and consumer

protection.

Activities during 1981—82

The Division's resources were fully extended throughout the year in fulfilling its legal policy and advisory roles in the areas men­ tioned above. The more important matters dealt with are described below.

5

Proposed Cheques Bill The preparation of drafting instructions and engaging in consultations with Parliamentary Counsel on the proposed Cheques Bill proceeded.

Enforcement of foreign antitrust laws in Australia The work of the Division in this jrea con­ tinued throughout the year. Matters dealt with included:

• Briefing of the Attorney-General in connection with a paper dealing with the extraterritorial application of United States law and foreign policy that was presented by him to the American Bar Association, New Orleans, in August

1981. The paper was contained in a press release dated 12 August 1981. • Preparation of a press release, issued on 17 August 1981, dealing with the reso­

lution of the American Bar Association calling on the United States Government to modify its approach to enforcement of extraterritorial aspects of United States laws. • Preparation of the brief dealing with

antitrust matters in connection with the Attorney-General’s meeting with British Ministers and officials in London and French Government officials in Paris in October-November 1981. The Attorney- General also held discussions with OECD officials during the visit. • Negotiations for a bilateral agreement

with the United States which would ensure that antitrust enforcement by that country would take account of and have proper regard to the policies of the Australian Government. A high level delegation of officials led by a Deputy

Secretary, Mr H.T. Bennett, and includ­ ing a senior officer of the Division, travelled to the United States in May 1982 for discussions with the United States officials relating to a possible bilateral agreement on antitrust enforcement. On 29 June 1982 the Attorney-General signed

in Washington on behalf of the Australian Government the Agreement negotiated by officials during May.

Consideration of Australia's attitude to the charges laid by Canada under the Combines Investigation Act in July 1981,

alleging that a number of Canadian companies conspired with certain com­ panies and associations in other countries to prevent, or lessen unduly, competition in the production in Canada of uranium, uranium oxide and other uranium sub­ stances.

Provision of advice in relation to the Foreign Antitrust Judgments (Restriction of Enforcement) Amendment Bill 1981, which was introduced into the Senate on

11 June 1981, and which creates a cause of action that would allow an Australian defendant in foreign antitrust proceedings to recover back against a successful plaintiff in those proceedings damages recovered against the Australian defendant by the enforcement overseas of the foreign antitrust judgment.

Consideration of the attitude the

Australian Government should take in relation to the private treble damages suit instituted in America in 1981 by the Ace Supply Line against a number of shipping lines with Australian affiliations, alleging a conspiracy to restrain or monopolise trade in the United States — Australian/ New Zealand ocean freight market. Although the Australian Government was not a party in the proceedings, the legal implications of the suit were closely monitored by the Division.

The preparation of various Diplomatic Notes to the United States Government reaffirming the desire of the Australian Government to engage in consultations concerning the investigation by the

United States Department of Justice into the alleged conspiracy to restrain or monopolise trade between the United States and Australia and New Zealand.

The preparation of briefs for Australia’s representatives at meetings of the OECD Committee of Experts on Restrictive Business Practices to ensure that inter­

national attention is given to the Aust­ ralian Government's attitude on the extraterritorial enforcement of United States antitrust laws and to present

6

Australia's contribution to the formula­ tion of a balanced report by the OECD on Obstacles and jurisdictional issues in the collection of information abroad neces­ sary for the control of restrictive business practices'.

* Briefing of the Attorney-General in connection with various addresses on the problems of extraterritoriality of antitrust laws.

Copyright Amendment Act 1980 The provisions of this Act dealing with photocopying of print material by individ­ uals, libraries, educational institutions and institutions assisting handicapped readers came into effect on 1 August 1981. Officers of

the Division have closely monitored the operation of those provisions. Meetings have been held with representatives of copyright owners, educational institutions and lib­ raries.

A general information booklet explaining the main provisions of those amendments was prepared by officers of the Division and published by the Department. The booklet

has been well received and several thousand copies have been distributed on request to teachers, lecturers, librarians and others. During the year under report, officers of

the Division have attended copyright semi­ nars and conferences in Sydney, Melbourne, Canberra, Darwin, Adelaide, Perth and Alice Springs to explain and answer questions on

the Act, and took part in a Canberra radio station talk-back program on the Act and copyright generally. During the year under report, three sets of

amendments to the Copyright Regulations to facilitate the operation of the 1980 Act were prepared on the instructions of officers of the Division, and were subsequently made.

Review of audio-visual copyright laws On 12 July 1981 the Attorney-General announced that the Department would carry out a review of the audio-visual copying

provisions of the Copyright Act 1968. Sub­ missions from interested parties were invited by 31 December 1981, and over 200 sub­ missions were received. Officers of the Div­ ision subsequently prepared a draft paper

identifying the issues raised in the sub­ missions and the Attorney-General approved its being made available to the public for

consideration and comment.

Commonwealth copyright The Attorney-General has the responsibility for the administration of Commonwealth copyright. This consists largely of adminis­ tering arrangements for the licensing of the copying, publication or other use of material in which the Commonwealth holds copy­ right. In April 1981, on the recommendation of the Committee on the Review of

Commonwealth Functions, the Government decided that the restrictions on the private publication of Commonwealth legislation be

eased. In the year under report, officers of the Division have held consultations with rep­ resentatives of private law publishers and other interested departments on the imple­ mentation of this decision, and have provided

recommendations to the Attorney-General.

Statutory licence for manufacture of records The Copyright Act 1968 contains a statutory licence which permits record manufacturers to make records of musical works without the permission of copyright owners, subject to paying a prescribed royalty. In March 1981 the Government decided in principle to abolish this licence. Officers of the Division have taken part in discussions with interested parties and the then Department of Business and Consumer Affairs on the implications of the decision.

Copyright Tribunal In August 1981 the appointments of two members of the Copyright Tribunal, Messrs D.K. Malcolm, Q.C., and R.N.J. Purvis, Q .C., were renewed.

On 4 June 1982 Part XVIII of the Statute Law (Miscellaneous Amendments) Act (No. I) 1982 came into operation. It amended Part VI of the Copyright Act 1968 to permit the

appointment of persons with specified non- legal qualifications to the Copyright

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Tribunal, and removed the limit of five on the total membership of the Tribunal.

Industrial law During the year under report, advice was given to interested departments and auth­ orities on a variety of legal issues arising in the industrial relations area. Those issues con­ cerned such matters as: • the jurisdiction of Commonwealth indus­

trial tribunals; • the operation of the Conciliation and Arbitration Act 1904; • the application of Commonwealth law in

relation to major industrial disputes; and • the development of legislative proposals to implement the Government's policies in the industrial relations area.

The Division is also responsible for dealing with applications for financial assistance in proceedings instituted under the Conciliation and Arbitration Act 1904 by organisation

members challenging the validity of organ­ isation rules, requiring the observance of organisation rules or inquiring into alleged irregularities in organisation elections.

During the year seventeen applications for assistance were received. Of these three were considered to be ineligible under the Act and eight received authorisations of assistance, while six were still under consideration at 30 June, 1982. Total payment during the year

was $106 933 in respect of seventeen appli­ cations. The Conciliation and Arbitration Amend­ ment Bill 1982, introduced into the House of

Representatives on 25 March 1982, will, if enacted, extend the scope of the Attorney- General’s power to grant financial assistance. Also, the Bill will remove the requirement of section 141A to obtain from the Federal Court a rule to show cause as a condition precedent to the grant of financial assistance, ensure that a hardship test applies in relation to all provisions allowing for the grant of financial assistance and affirmatively provide that organisations will not be entitled to financial assistance.

Parliamentary disallowance of delegated legislation The Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, which was assented to on 7

May 1982, contains provisions giving effect to most of the proposals mentioned at p. 24 of last year’s Annual Report. In particular, section 48 of the Acts Interpretation Act 1901 was amended to provide for revival of the whole or part of a repealed regulation where the repealing regulation is disallowed by a

House of the Parliament and to extend the period during which the Senate may consider a motion for disallowance of a regulation where, after notice of the motion has been given, the House of Representatives is dis­ solved. By that same Act, particular pro­ visions tor parliamentary disallowance of instruments contained in other Acts were amended to incorporate into them the same

principles as were included by the amend­ ments to section 48 of the Acts Interpretation Act 1901. Effect is being given at the drafting stage of new legislation to the remaining proposal that future provisions for the disallowance of statutory instruments will (unless there are good reasons for variation) incorporate the

relevant requirement of Part XII of the Acts Interpretation Act 1901. Preliminary consideration was given by the Division to a number of conclusions reached by the Commonwealth Conference of Dele­ gated Legislation Committees held in Can­

berra in September-October 1981. The results of that consideration were made known to the Senate Standing Committee on Regulations and Ordinances, which is deve­ loping further proposals on parliamentary scrutiny of delegated legislation for the Government’s consideration.

Parliamentary Papers Act 1908 The Division is conducting a general review of the Parliamentary Papers Act 1908 following concern that certain parliamentary practices

may result in officials, as distinct from parliamentarians, being susceptible to legal proceedings being instituted against them arising out of statements contained in papers presented to the Parliament.

Public Lending Right scheme The Department continues to play a role in this scheme, which is administered by the Department of Home Affairs and Environ­ ment. An officer of this Division is a member of the Public Lending Right Committee. The

8

scheme compensates Australian authors and publishers for sales lost through the lending of books by libraries.

Aboriginal folklore During the year under review, an officer of the Division continued to participate in the interdepartmental Working Party on the Protection of Aboriginal Folklore, which presented its final report to the Minister for

Home Affairs and Environment on 4

December 1981.

Australian National Commission for UNESCO In view of the relevance of copyright and related law to UNESCO's Communications

Program, an officer of the Division is a member of the Australian National

Commission for UNESCO, which advises the Government on Australia's participation in UNESCO programs.

Ninth International Trade Law Seminar This seminar, designed to inform Australian businessmen and lawyers of developments in the field of international trade law, was organised by the Division and held in May

1982. Papers and workshops at the Seminar dealt with: » Australia's trading relations with the

EEC;

• State jurisdiction over corporations; e the General Agreement on Tariffs and Trade; ® the United Nations Convention on

Contracts for the International Sale of Goods; • the United Nations Convention on the Carriage of Goods by Sea (Hamburg

Rules).

United Nations Commission on International Trade Law (UNCITRAL) The Division was responsible for the briefing of the Australian delegation to be led by the

Solicitor-General to the 15th Session of UNCITRAL and the UNCITRAL Working Group on the New International Economic Order, due to take place in July 1982. The

Division also prepared the briefing for the Australian representative to the meeting of the UNCITRAL Working Group dealing with a ‘Universal Unit of Account" in January

1982, and the meeting in February 1982 of the UNCITRAL Working Group on Internat­ ional Contract Practices, which has comm­ enced work on a model arbitration law.

Hague Conference on Private International Law The Division has been responsible for the active role which Australia is playing in the work of the Hague Conference. The confer­ ence decided at its 14th session to include in

its work program, the question of the inter­ national validity and recognition of trusts. An officer of the Division was the Australian

representative at the Special Commission meeting on the topic in June 1982, for which the briefing was also prepared by the

Division.

International Institute for the Unification of Private Law (UNIDROIT) An officer of the Division represented Australia at a meeting of the UNIDROIT Committee of Governmental Experts held in

November 1981 to discuss the Draft Con­ vention on Agency in the International Sale of Goods. This Committee agreed upon a revised draft text to be presented to a

Diplomatic Conference in 1983.

International copyright meetings An officer of the Division attended the meetings in Geneva in December 1981 of the Governing Committees of the Berne Union and of the Universal Copyright Convention, of both of which Australia is currently a member.

An officer attended a meeting of Govern­ mental experts, in Paris in June 1982, con­ vened jointly by the World Intellectual Property Organisation (WIPO) and

UNESCO, on copyright problems arising from the use of computers for access to, or creation of, works. He also attended a similar meeting in Geneva later in June 1982 on model provisions on the protection of folklore.

9

3: Corporate Affairs Division

e (b) preparations for the commencement of

Functions of the Division the companies code on 1 j uiy m 2 .

The Corporate Affairs Division, which was transferred to the Attorney-General's Depart­ ment upon the abolition of the Department of Business and Consumer Affairs on 7 May

1982, is responsible for advising the

Attorney-General on corporate affairs and bankruptcy matters. It is also responsible for the administration throughout Australia of certain statutory functions in relation to bankruptcy and for the administration of Australian Capital Territory corporate af­ fairs legislation.

Additional information and statistics on these administrative activities are contained in the annual report on the operation of the Bankruptcy Act 1966 for the year ending 30 June 1982, and in the report of the Australian

Capital Territory Corporate Affairs Com­ mission for the same period. Most of the activities referred to in the report on this Division were carried out in the Department of Business and Consumer Affairs, but because that Department has been abolished it is convenient to include a brief record of the activities here.

Activities during 1981-82

Co-operative companies and securities scheme Work continued throughout the year on the co-operative companies and securities scheme. The major activities were associated with the following: (a) the commencement of the securities

industry, share acquisition and inter­ pretation codes on 1 July 198 hand

Companies Regulations The new Companies Regulations (to come into operation on 1 July 1982) are based on the Victorian Companies Regulations 1976. A draft of the new regulations was exposed to the public for comment between 1 February and 26 February 1982. The final decision on the form and content of the regulations was made by the Ministerial Council for Com­ panies and Securities following its

consideration of all submissions received.

Companies (Fees) Regulations The Companies (Fees) Regulations establish the fees permitted to be charged under the Companies (Fees) Act 1981 for the lodging of documents with, or for the doing of certain acts by, the National Companies and Securities Commission (NCSC) under the Companies Act 1981 as in force in the Australian Capital Territory. The fees that will be applied by all other jurisdictions under their companies codes are in most cases the same as the fees in the Australian Capital Territory. The new fees are based, with modifications, on the existing fees under the Interstate Corporate Affairs Agreement.

‘Translator’ regulations The Division has also been involved throughout the year in consideration of State 'translator' regulations which effect necessary local modifications to ensure that particular amendments to Commonwealth Acts or regulations will have a meaningful

application in jurisdictions other than the Australian Capital Territory. The Victorian Parliamentary Counsel drafted the model

10

regulations on which the individual State ‘translator’ regulations were based.

Other legislative work Work is proceeding on the preparation of a Companies and Securities Legislation (Mis­ cellaneous Amendments) Bill 1983 and a similar Bill for 1984.

During the year, the Division was involved in the making of certain Australian Capital Territory Ordinances and Regulations con­ sequential upon the proposed commence­

ment of the Companies Act 1981. Work is also proceeding on possible amendments to the Australian Capital Territory Associations incorporation Ordinance.

Amendments to bankruptcy legislation Amendments to the Bankruptcy Act 1966 were effected by Part V of the Commonwealth Functions (Statutes Review) Act 1981, which came into operation on 1 February 1982. Those amendments were designed to give effect to the decision, following the

Government’s Review of Commonwealth Functions (RCF), that as much as practicable of the bankruptcy trustee work currently being performed in the Official Receivers'

offices should be handed over to the private sector. Consequential amendments to the Bankruptcy Rules were made by Statutory Rules Nos 304 and 305 of 1981.

Work on further amendments to the Bankruptcy Act 1966 is proceeding. It is intended that those amendments will have regard to:

(a) the abovementioned RCF decision; (b) public submissions which were received following the Bankruptcy Amendment Act 1980 and following the exposure, in

July 1981, of proposals for further amendments; and (c) the recommendations of the Joint Management Review of the Bankruptcy

Branch which reported in May 1981. (This review was conducted by a

departmental - Public Service Board team led by a partner in the accountancy and consultancy firm of Messrs Hunger- ford Hancock and Offner. The team’s terms of reference were designed to

produce recommendations which would improve administrative efficiency and would eliminate functions that were not cost effective. Implementation of the recommendations is proceeding.)

M inisterial Council for Companies and Securities The Ministerial Councillor Companies and Securities met on five occasions during 1981— 82.

Prior to the establishment of a permanent secretariat to service the Ministerial Council, an officer of the Division, Mr M.D. Starr (Director of the Companies Section), acted as Interim Secretary to the Council. The permanent secretariat was established in January 1982 when Ms Y. Grant was

appointed as Secretary to the Ministerial Council.

Inter-government agreements Work on the following Commonwealth-State intergovernment agreements was undertaken during the year:

(a) Administrative Remedies Agreement: On 21 April 1982, the Commonwealth and the States executed the Administra­ tive Remedies Agreement. The object­

ives of the agreement are to set out the manner in which Commonwealth and State laws relating to the review of administrative remedies and administra­ tive decisions should apply to the

Ministerial Council, the NCSC and the State corporate affairs administrations. (b) Second Amending Agreement: The Ministerial Council, on 11 June 1982,

considered the text of an agreement to amend the Formal Agreement on com­ panies and securities which was exe­ cuted by the Commonwealth and the

States on 22 December 1978 (and was subsequently amended by the First Amending Agreement on 24 February 1981).

(c) Fee Sharing Agreement: On 11 June 1982, the Ministerial Council approved the text of an agreement (known as the "Fee Sharing Agreement’) relating to the

sharing of certain companies fees between the parties to the Formal Agreement on companies and securities.

11

Administration of co-operative companies and securities legislation in the Australian Capital Territory 1 July 1981 marked the first stage of the implementation of the co-operative com­ panies and securities scheme with the commencement of the Securities Industry Act

1980 and the Companies (Acquisition of Shares) Act 1980. A substantial training program has been undertaken to prepare staff in the Australian Capital Territory Corporate Affairs Office for the changes to the companies legislation, and the new practices and procedures being developed for the co-operative scheme. The purchase of some new equipment is being arranged, and alterations to office accom­ modation have been proposed to provide better facilities and service to the public.

Advisory committees Eleven advisory committees were established by the NCSC during 1981-82 to prepare handbooks to assist in the administration of the companies code throughout Australia. Officers of the Australian Capital Territory Corporate Affairs Office are represented on all eleven committees.

A Technical Officers Committee was also formed to give detailed consideration to the draft Companies Regulations and a similar committee is planned for a review of the Securities Industry Regulations.

Investigations Inspectors from the Investigation Section of the Australian Capital Territory Corporate Affairs Office make inquiries into alleged breaches of companies and securities laws that are administered by the Australian Capital Territory Corporate Affairs Com­ mission. Where sufficient evidence is available and enforcement is warranted prosecution proceedings are undertaken.

During the year: • One hundred and twelve major cases involving more serious offences, such as fraud, fraudulent trading, insolvent

trading, making false statements, illegally offering interests and failure to keep books and records were investigated.

• The Courts imposed fines totalling

$134 790 in respect of 943 convictions in 708 minor cases. • A total of 95 liquidators’ reports under section 306 of the Companies Ordinance

1962 were considered in respect of in­ solvent companies that are unable to pay more than 50 cents in the dollar to un­ secured creditors.

Automatic data processing projects The Division was involved in five automatic data processing projects during 1981-82: • Bankruptcy Official Receiver Inform­

ation System (BORIS): BORIS is the computer system which is being intro­ duced into the Official Receivers' offices to provide accounting, management in­ formation and word processing facilities. • Bankruptcy Microfiche Register: The

Bankruptcy Branch, in conjunction with the Registrars in Bankruptcy, who are part of the Federal Courts and Tribunals Registry Branch, produces a complete register, on micro-photographic trans­ parencies, of bankruptcies, administra­ tion of estates of deceased debtors and deeds and compositions under the Bankruptcy Act 1966. • Co-operative scheme ADP facility: In

March 1980 a Working Party of Com­ monwealth and State officers prepared a Feasibility Study Report which recom­ mended the establishment of a computer system to serve the needs of the NCSC and the State and Territory corporate affairs offices. Subsequently, the Ministerial Council approved the establishment of a steering committee, under the chairman­ ship of the NCSC, to supervise the preparation of the cost-benefit studies on the recommended system. > Computerised market surveillance: In

addition to the above-mentioned studies, the NCSC has been undertaking a feas­ ibility study on a system of computerised market surveillance. Australian Capital Territory Corporate Affairs Office computer pilot study: During the year work continued on a pilot study for a computer system for the Australian Capital Territory Corporate Affairs Office.

12

4: Crown Solicitor’s Division

Functions of the Division

The function of the Crown Solicitor's Division is to provide legal services to Com­ monwealth departments and authorities, similar to those provided by solicitors in

private practice to their clients. The services provided are wider and more diverse in range than those provided by any but the largest of private firms. In this chapter, some indication

is given of the range and diversity of the work performed.

Activities during 1981-82

The statistical summary contained in the table at the end of this chapter provides an indication of the volume of work passing through the Division in the year under report.

Set out below are brief notes on some of the litigation and other work of the Division which was of public importance or which attracted public attention during the year.

Civil Litigation Reference was made in the 1980-81 report of the Department to a number of cases which were current at 30 June 1981. Progress in these cases during the year under report is outlined below.

• Wacando v. Bjelke-Peterson and others and The State of Queensland v. The Common­ wealth. On 12 November 1981 the Full Court of the High Court held that Darn-

ley Island situated in Torres Strait, formed part of the State of Queensland. • Uebergang and another v. The Australian Wheat Board and others. There have been

no further developments in this matter in 1981-82. Repatriation Commission v. Nancy Law. In this case, which involved an application

for a pension under the Repatriation Act 1920 and the interpretation and appli­ cation of the evidence provisions of that Act, the Full Court of the High Court delivered its judgment on 16 October

1981. The Full Court dismissed the appeal by the Repatriation Commission against the decision of the Full Court of the Federal Court. Evans Deakin Industries Limited v. The

Commonwealth. This matter involves a claim and counter claim for damages arising out of a contract for construction of the ship Robert Miller. An application to the Supreme Court of Queensland by

the Commonwealth for a separate trial on the issues of quantum and liability has been refused, and an appeal has been lodged against that decision. The appeal had not come on for hearing by 30 June

1982. Fulton and others, v. The Commonwealth and others. There have been no major developments in this action in the High

Court in which damages are sought for injuries allegedly sustained from exposure to chemicals during the war in Vietnam. It is understood that new solicitors are acting for the plaintiffs. Order Nisi for Prohibition against a Board

of Reference (established under the Munici­ pal Officers' (S.A.) Award 1973) and another; ex parte The Corporation of the City of Salisbury. It was argued by the

Prosecutor Corporation that a provision in a Federal industrial award for the appointment of Boards of Reference to determine disputes regarding the appro­

priate classification of particular em­ ployees was invalid since the Board was exercising the judicial power of the Commonwealth and it was not properly

13

constituted as a Court. It was also argued that the dispute in question did not have the necessary interstate character to attract federal industrial power. On 18

September 1981, the Full Court of the High Court held that the Board of

Reference was not exercising the judicial power of the Commonwealth. The Board merely stood in the shoes of the employer, whose decision it reviewed, when deter­ mining disputes regarding the classifi­ cation of employees. Furthermore, although a dispute as to the classification of a particular employee may not be inter­ state in character, if the provisions in the award establishing the Board were in settlement of an interstate dispute the Board is validly constituted. Perry and others v. Commonwealth Scientific and Industrial Research Organ­ isation. As noted in the 1980-81 report, these proceedings involved an application for injunctions to restrain CSIRO from importing, breeding or releasing insects used for the purpose of controlling the plant known as ‘Patterson’s Curse’ or ‘Salvation Jane’. The matter was set down for hearing in the Supreme Court of South Australia commencing on 31 May 1982. The parties have, however, now agreed that an independent body of experts should inquire into and assess the relative benefits and detriments of the plant.

Order Nisi for Mandamus against Aust­ ralian Telecommunications Commission and others; ex parte Australian Telephone and Phonogram Officers’ Association. In its decision given on 11 February 1982 the

High Court held that a single Com­ missioner of the Australian Conciliation and Arbitration Commission could pro­ perly regard himself as bound by the "indexation guidelines’ or ‘wage-fixing principles’ previously laid down by a Full Bench of the Commission. The Court also held that although the Commission must hear and determine particular disputes, it could formulate a principle and consist­ ently apply the principle to cases coming

before it. Gazzo v. The Comptroller of Stamps (Vic.). In its decision given on 24 December 1981 <

the High Court held that section 90 of the

Family Law Act 1975 was invalid in so far as it attempted to exempt from stamp duty imposed under a law of a State a

transfer of property made pursuant to an order of the Family Court of Australia. Such an exemption was not authorised under the powers of the Commonwealth Parliament to make laws with respect to marriage or with respect to divorce and matrimonial causes. The Commonwealth v. John Fairfax and others; The Commonwealth v. Walsh and another; The Commonwealth v. IPEC Holdings Ltd and another (the Documents Case). It was noted in the 1980-81 report that the action against the newspapers was settled on 12 June 1981. The actions against the publishers and distributors of the book Documents on Australian Defence and Foreign Policy 1968-1975 were settled on 17 July 1981 on the basis of the interim injunctions granted by Mason J being made permanent in respect of all docu­ ments referred to and contained in the book, other than two documents the copyright in which did not reside with the Commonwealth.

Mudginberri Station Pty Ltd v. The Commonwealth and others; Lord Pastoral Company Pty Ltd v. The Commonwealth and others. As noted in the 1980-81 report, in these proceedings a challenge was made to the validity of action taken by the Commonwealth in 1978 to acquire interests under certain pastoral leases in the Northern Territory. The proclam­ ation of the Lands Acquisition (Northern Territory Pastoral Leases) Act 1981, with effect from 22 October 1981, assured the Commonwealth's title to, and right to possession of, those interests. Subsequent discussions between the Commonwealth and representatives of the former lessees led to agreement on the amount of compensation to be paid by the

Commonwealth for acquisition of their interests. As a consequence of that agreement, the amount agreed upon was duly paid and the proceedings challenging the validity of the Commonwealth's action were withdrawn. Finch v. The Public Service Board and others. On 14 September 1981 Ellicott J of

the Federal Court ordered, inter alia, that the decision of a Promotions Appeal Committee allowing an appeal against the provisional promotion of the applicant be set aside. His Honour held that in the circumstances of the case the applicant had been denied natural justice. Storey v. Lane. In a decision handed down

on 4 September 1981 the Full Court of the High Court held that section 60 of the Bankruptcy Act 1966 is valid. Section 60 empowers a court having jurisdiction in

bankruptcy under the Bankruptcy Act 1966 to stay action or legal process against a debtor and to discharge him from custody. The applicant had been in prison for offences under Queensland legislation

for failure to pay wages to an employee, and had applied to the Supreme Court of Queensland for release under section 60. The m atter was removed into the High Court when the question arose as to the constitutional validity of that section. The Commonwealth v. Introvigne. This case, which concerns a claim for damages for injuries sustained in an accident in a school playground in the Australian Capital Territory, raises the question of the Commonwealth’s liability for the acts or omissions of school teachers. The

Commonwealth has appealed to the High Court from a decision of the Full Court of the Federal Court. The matter was heard

by the Full Court of the High Court on 11 March 1981. The Court reserved its decision. No decision had been given up to 30 June 1982.

The Minister for Immigration and Ethnic Affairs v. Pochi. This matter concerned the nature of the evidence upon which the Minister under the Migration Act 1958, and the Administrative Appeals Tribunal in reviewing a decision of the Minister, may decide that the deportation of an alien is ‘in the best interests of Australia’. The Administrative Appeals Tribunal

and the Full Court of the Federal Court found that, as it had not been established, on the balance of probabilities, that the conduct which was relied upon as the basis for sustaining the deportation order by the Minister had in fact occurred, the

Minister should reconsider his opinion.

The Minister sought and was granted special leave to appeal to the High Court against that decision. Subsequently, the High Court rescinded the grant of special

leave on the ground that, since the

Minister is not bound by the decision of the Administrative Appeals Tribunal (except to reconsider the deportation order), a decision by the High Court which affirmed the decision of the Tribunal could be treated by the Minister as no more than advice which he could disregard.

Actors and Announcers Equity Association of Australia and others v. Fontana Films Pty Ltd. This matter, which involved

questions regarding the validity of section 45D of the Trade Practices Act 1974 relating to secondary boycotts, was heard by the Full Court of the High Court in August 1981 and the Court’s decision was given on 11 May 1982. The Court held

that section 45D(l)(b)(i) was valid in its application to a trading corporation but that section 45D(5) and section 45D(6) in so far as they related to section 45D(5) were invalid. Groves v. The Commonwealth. The Full

Court of the High Court heard the case stated in this matter in September 1981 and judgment was delivered on 4 May 1982. The Court held that a member of

the Armed Services was entitled to maintain an action against the Common­ wealth for damages in respect of injuries resulting from the negligent acts or omissions of fellow members committed

in the performance of their duties in the course of passenger transport operations within Australia in peace time, and not involving a matter of discipline or other

matter peculiar to the Armed Services. The Court did not consider whether an action was maintainable for injuries sustained in combatant activities or in training for such activities. Control Investments and others v.

Australian Broadcasting Tribunal. This was an application to the Administrative Appeals Tribunal under section 119A of the Broadcasting and Television Act 1942. The decision under review was the refusal, on grounds of public interest, by the

15

Australian Broadcasting Tribunal to approve the acquisition by the applicants of interests in a company wholly owning the licence of ATV 10 Melbourne. The applicants also controlled the licensee of ATV 10 Sydney and a central issue in the proceedings was the extent to which common ownership of Sydney and Melbourne components of the network was consistent with the public interest. In his decision dated 17 December 1981, Morling J approved the acquisition.

Trade Practices Commission v. Allied Mills Industries Pty Ltd and others. These pro­ ceedings, in which the Trade Practices Commission instituted proceedings against five producers of glucose alleging a price-fixing arrangement contravening the Trade Practices Act 1974, were concluded in October 1981. The proceed­ ings were settled on terms that the

defendants withdrew their defences to the Commission's claims and consented to orders by the Federal Court that each defendant pay a pecuniary penalty of $50 000 and the Commission’s costs in the proceedings, and that each defendant be restrained for a period of three years from being a party to, or giving effect to, any price-fixing arrangement for glucose.

State Superannuation Board of Victoria v. Trade Practices Commission. The Board's appeal to the Full Federal Court against the decision of Brennan J that it was a ‘financial corporation' and thus subject to the provisions of the Trade Practices Act

1974 was heard in August and October 1981. On the appeal the Board raised the further argument that it was an agent or instrumentality of the Crown in right of the State of Victoria and that accordingly the Act did not apply to or bind the

Board. In its judgment handed down on 15 April 1982 dismissing the Board's appeal, the Full Court of the Federal Court held that the Board was a ‘financial corporation’ and that it was not an agent or instrumentality of the Crown in right of the State of Victoria so as to be entitled to immunity from the provisions of the Trade Practices Act 1974. On 11 June 1982 the Full Court of the High Court granted the Board special leave to appeal against

the decision of the Federal Court. The appeal had not been heard by 30 June 1982. • Bankcard Scheme — Trade Practices

Tribunal. This matter involving the arrangements between the Australian banks participating in the Bankcard scheme, came on for hearing before the Trade Practices Tribunal on 27 July 1981. On 10 August 1981 the Tribunal was informed that the banks were prepared to abandon their restrictions on merchants determining the prices they charge to cash and Bankcard customers, and their restrictions on banks participating in other charge card schemes and on other financial institutions participating in the Bankcard scheme. The Tribunal then authorised the arrangements between the banks subject to those modifications.

Other important litigation in which the Crown Solicitor has been engaged during the year under report includes: • Luigi Pochi v. The Honourable Ian

Malcolm Macphee and the Commonwealth of Australia. This matter arose out of a decision of the first-named defendant, as Minister for Immigration and Ethnic Affairs, to deport the plaintiff. The matter was heard by the Full Court of the

High Court on 11 and 12 May 1982 by way of demurrer to the statement of claim. Questions for consideration of the High Court included whether section 12 of the Migration Act 1958 empowers the

Minister to deport an alien if that alien has become absorbed into the Australian community, whether section 12 is ultra vires paragraph 5 l(xix) of the Constit­ ution and when a person ceases to be an alien. The Court reserved its decision. A decision had not been given by 30 June

1982.

► Vincenzo Barbaro v. The Commonwealth. The plaintiff in these proceedings in the Federal Court seeks to have reviewed a decision of the Minister for Immigration and Ethnic Affairs to deport him. On 16 June 1982 the Federal Court ruled that the

application by the plaintiff was compe­ tent, in that it sought to have a decision of an administrative character reviewed.

The application is to be heard on 18 October 1982.

Clyne v. Deputy Commissioner of Taxation and another. In this case the plaintiff challenged the validity of notices issued under section 218 of the Income Tax

Assessment Act 1936 and argued that a notice could not be given under that section in respect of a taxpayer whose tax is due but not payable at the date the notice was given. On appeal, the Full Court of the High Court dismissed the plaintiff’s action and held that an amount is due under section 218 once an assess­ ment issues, notwithstanding that the date for payment under the assessment

has not yet arrived.

Fountain v. Alexander. These proceedings in the Supreme Court of New South Wales, which were removed into the High Court upon application by the Attorney- General of the Commonwealth under section 40 of the Judiciary Act 1903, involved questions relating to the applic­

ation and construction of various pro­ visions of the Family Law Act 1975. The substantial issue was whether the

Supreme Court had jurisdiction to deal with an application for custody of a child of a marriage made by a stranger to the

marriage against a party to the marriage who had been granted custody of the child in proceedings under the Matrimonial Causes Act 1959. On 23 April 1982 the Full Court of the High Court held that under the relevant provisions of the Family Law Act 1975 properly construed, only the Family Court of Australia had jurisdiction to deal with the custody

application, that so construed the pro­ visions were valid and that accordingly the Supreme Court of New South Wales did not have jurisdiction to deal with the

application. Ward and Harrington v. Ward. This case raises the question whether, in circum­ stances where the Family Court of Australia has made orders relating to the care and control of a child, the Supreme Court of New South Wales has juris­ diction to hear and determine an appli­ cation by the female party to the marriage and a male applicant for (i) a declaration

under sections 10 and 19 of the Children (Equality of Status) Act, 1979 of New South Wales that the male applicant is the father of the child, and (ii) an order that

the applicants be granted custody of the child. An application by the Attorney- General of the Commonwealth under

section 40 of the Judiciary Act 1903 for an order removing the matter into the High Court was granted by the Court on 11 June 1982. The matter had not come on

for hearing by 30 June 1982. The Commonwealth v. Brazil and Brazil. In this matter proceedings have been insti­ tuted in the Supreme Court of New South

Wales for the recovery of arrears of amounts payable by way of levy under the Poultry Industry Levy Act 1965 and penalty interest. The defendants have challenged the validity of the Poultry Industry Levy

Act 1965, and the Poultry industry Assistance Act 1965, alleging that these two Acts constitute a scheme to control or to regulate the poultry industry, and that the Commonwealth has no power so to legislate. The defendants also claim that the Acts collectively constitute a scheme imposing taxation, and that they

contravene section 55 of the Constitution, and that the levies are not paid into Consolidated Revenue as required by section 81 of the Constitution. Jones and Mortimer v. Sterling. The

Attorney-General of the Commonwealth intervened in these proceedings in the Federal Court which raised the question,

amongst others, whether section 83 of the Trade Practices Act 1974 is constitution­ ally valid. It was argued that the section purported to regulate or prescribe the activities of individuals and that this was

ultra vires paragraph 51(xx) of the Constitution. On 24 June 1982 Davies J held that section 83 is not ultra vires the legislative power of the Commonwealth.

Trade Practices Commission v. T.N.T. Management Pty Ltd and others. The Trade Practices Commission instituted proceed­ ings against nine transport companies alleging an anti-competitive arrangement not to deal through agents or brokers, contrary to the provisions of the Trade Practices Act 1974. A subpoena seeking

the production of certain documents was served on the Executive Director of an unincorporated trade association of which some of the defendants were members. On appeal from the Full Federal Court, the question whether the defendants' privilege against self-incrim­ ination extends to the subpoenaed docu­ ments was argued before the Full Court of the High Court on 20 April 1982. The High Court reserved its decision. A decision had not been given by 3Θ June

1982. Pyneboard Pty Limited v. Trade Practices Commission and another. The High Court has granted Pyneboard Pty Limited

special leave to appeal against the decision of the Full Federal Court

delivered on 24 February 1982 that a statutory demand for information and documents under section 155 of the Trade Practices Act 1974 was valid, notwith­ standing that it required the company to furnish information and produce docu­ ments which might tend to expose the company to a penalty under the Act. The High Court is expected to hear the appeal towards the end of 1982. The Commonwealth and others v. The < Hospitals Contribution Fund of Australia and others. In this matter the Common­ wealth sought declarations from the High Court that a Master of the Supreme Court of New South Wales has no jurisdiction to hear and determine a claim for Crown privilege by the Minister for Health in respect of documents subpoenaed by the Hospitals Contribution Fund of Australia in proceedings in the Supreme Court of New South Wales. The State of New South Wales demurred to the statement of claim, and the demurrer was heard by the Full Court of the High Court on 3

November 1981, with the States of ·

Victoria, Queensland and Western Australia intervening. On 11 May 1982 the High Court held that the Master had federal jurisdiction to decide whether or not the claim to privilege should be allowed. In so doing, the Court overruled earlier decisions in Kotsis v. Kotsis (re­ lating to the jurisdiction of a registrar of the Supreme Court of New South Wales) and Knight v. Knight (involving the juris­

diction of a Master of the Supreme Court of South Australia). • Koowarta v. Bjelke-Petersen and others; Queensland v. The Commonwealth. These

matters raised questions as to the validity of the Racial Discrimination Act 1975. In the first action, the plaintiff sought a declaration from the Supreme Court of Queensland that the refusal of the

Queensland Government and some of its Ministers to allow the transfer of a pastoral lease to the Aboriginal Land Fund Commission was in contravention of the provisions of the Racial Discrim­ ination Act 1975. The Queensland Government challenged the validity of various provisions of that Act. The High Court removed the matter on the

application of the Attorney-General of the Commonwealth, and Queensland then brought the second action directly challenging the validity of the Act on wider grounds. On 11 May 1982 the Full Court of the High Court held, by a

majority, that sections 9 and 12 of the Act were validly enacted, in reliance on the external affairs power in paragraph 5 l(xxix) of the Constitution. i William John OReilly (The Commissioner

of Taxation) v. The Commissioners of the State Bank of Victoria and others. This was a case stated for the opinion of the High Court on the interpretation of section 263 of the Income Tax Assessment Act 1936. This section confers on the Commissioner of Taxation the right to full and free access to all buildings, places, books, documents and other papers for any of the

purposes of the Act. The case was heard by the Full Court of the High Court on 10 and 11 March 1982. The Court reserved its decision. A decision had not been given by 30 June 1982. Muller and others v. Fencott and others. In this case the applicants instituted proceedings in the Federal Court'against two companies and three natural persons alleging false and misleading conduct in relation to a transaction involving the sale of a business and claiming, among other things, damages under section 82 of the Trade Practices Act 1974 from each respondent for an alleged breach of section 52 of the Act. In preliminary

proceedings some of the respondents challenged the jurisdiction of the Federal Court on grounds which included the ground that section 82, read with section

75B, was invalid in so far as it enabled proceedings for damages to be taken against a natural person involved in a breach of section 52. The objections to jurisdiction were heard before Toohey J,

who held that section 82 was valid in its application to natural persons. The respondents appealed to the Full Court of the Federal Court against the decision of

Toohey J and on 14 May 1982, upon application by the Attorney-General of the Commonwealth under section 40 of the Judiciary Act 1903, the High Court

ordered that the appeal be removed into the High Court. The appeal also raises the questions (i) whether the Federal Court has jurisdiction to hear and determine certain common law claims based on the

facts giving rise to the claim under section 82, and (ii) whether one of the respon­ dents in the proceedings is a trading corporation within the meaning of

paragraph 5 l(xx) of the Constitution. At 30 June 1982 the appeal had not been set down for hearing. ® Murphyores Incorporated Pty Ltd v. The Commonwealth. In this action in the High Court the plaintiff seeks declarations that it is entitled to a mining lease over an area included within the defence training area at Shoalwater Bay in Queensland, and that the Commonwealth is liable to pay damages for its refusal to grant the lease. The plaintiff's claim is based on con­

struction of a deed entered into between it and the Commonwealth in 1971. A defence to the plaintiffs statement of claim was delivered on 25 March 1982. The matter has not yet been set down for

hearing.

• Tasmanian Wilderness Society Inc., Morrisons Tourist Services Pty Ltd and Wildtrek Pty L td \. The Commonwealth and others. The plaintiffs in this action in the

High Court sought interlocutory injunct­ ions to restrain the Australian Loan Council from considering a submission by the State of Tasmania for approval for the

borrowing of funds for the purposes of the Gordon below Franklin hydro-electric

power development scheme. The plain­ tiffs submitted that the Australian Heri­ tage Commission Act 1975 and the Environment Protection (Impact of Proposals) Act 1974 implemented for Australia the provisions of the Conven­ tion for the Protection of the World Cultural and Natural Heritage which was adopted at a general conference of

UNESCO in 1972. This submission was rejected. Further submissions to the effect that the Commonwealth was bound to ensure that the Loan Council does not take any action that adversely affects the

region and that it was bound, in the circumstances, by the Environment Protection (Impact of Proposals) Act 1974 were rejected by Mason J in a judgment

delivered on 17 June 1982. His Honour held that the Loan Council is not an ‘authority of the Commonwealth" or an ‘authority of Australia’ in terms of the legislation.

Litigation arising out of the Administrative Decisions (Judicial Review) Act 1977 Mention was made in last year’s Annual Report of the fact that, in the first nine months of operation of the Act to 30 June

1981, 48 applications for review on questions of law were made in respect of administrative decisions under a wide variety of statutes. This trend has continued. In particular, a

number of matters arose in the areas indi­ cated below.

Promotions appeals • G our gaud and others v. Lawton and others. This was an application to the Federal Court made under sections 5 and 6 of the

Act to review a recommendation of the first-named respondents who constituted a selection interview panel in respect of a position in the Parliamentary Library. The panel recommended that a particular candidate be appointed as a Parliamen­ tary Officer to the position. The case was heard on 18 and 19 March 1982. In a decision handed down on 24 June 1982 the Court held that the actions of the Committee did not constitute a decision

19

or conduct engaged in for the purpose of making a decision within the meaning of those expressions in the Act. • Perri v. Rossall and others. In December

1981 the first respondents, constituting a Promotions Appeal Committee, dis­ allowed an appeal by the applicant against a provisional promotion. On 19 January 1982 the applicant commenced

proceedings under the Act to review this decision, alleging a breach of the rules of natural justice by the respondents'and an improper exercise by them of the powers conferred by the Public Service Act 1922. The matter had not come on for hearing

by the Federal Court by 30 June 1982. • Hurt v. Rossall and others. In this matter the applicant sought in the Federal Court to have reviewed a decision of a Prom­

otions Appeal Committee to allow an appeal against his provisional promotion, on the grounds of a denial of natural justice, namely that he was not shown a relevant departmental report. The matter was heard on 13 and 14 May 1982. A decision had not been given by 30 June 1982.

Migration • Haydar Haj-Ismail and Mona Ahdab Haj- Ismail v. Minister for Immigration and Ethnic Affairs. The applicants sought in

the Federal Court to have reviewed under the Act the Minister’s decisions to reject their applications for resident status and to deport them. They were successful in this application. An appeal to the Full Court of the Federal Court by the

Minister was partly successful. The applicants have applied to the High Court for special leave to appeal. The grounds of appeal as stated in the application to the Court include the question whether the

Minister is required to observe the rules of natural justice in making deportation orders. The matter had not come on for hearing by 30 June 1982.

Disciplinary proceedings and industrial matters • James Hart v. Australian Telecommunica­ tions Commission and others. This was an

application to the Federal Court to review <

the findings of a Telecom Disciplinary Appeal Board which upheld penalties imposed on the applicant for failing to obey a direction that he should maintain a standard of dress generally acceptable in the community and in the Commission. The applicant had worn a caftan to work. The Court allowed the application and quashed the penalties. An appeal by the Commission to the Full Court of the Federal Court was heard on 22 June 1982. Williamson v. Morrison and others. This was an application to the Federal Court to review a decision of a Disciplinary Appeal Board established under the Public Service Act 1922. The Board had required the applicant to elect whether he intended to call evidence before determining a submission by him that on the evidence led there was no case for him to answer. At the hearing before the Federal Court there was an issue whether the Board was entitled to require the applicant to make that election before hearing his sub­ mission. On 26 March 1982 Morling J held that it was open to the Board to decline to entertain the submission in the absence of an election by the applicant not to call evidence. Town v. Australian Telecommunications Commission and another. This was an application to review a decision made under section 5 of the Commonwealth Employees (Employment Provisions) Act

1977 to stand down the applicant in connection with industrial action at a Telex Exchange. On 27 May 1982 the Federal Court held that the stand-down notices given under the Act were valid. The applicant has appealed against the decision on this threshold question to the

Full Court of the Federal Court. Homer and others v. Dowell and others. In these proceedings 114 applicants are seeking from the Federal Court orders to

review decisions made under section 4 of the Commonwealth Employees (Employ­ ment Provisions) Act 1977 that they be suspended for engaging in industrial action in regional offices of the Depart­

ment of Social Security. The matter had not come on for hearing by 30 June 1982. Carlon and others v. Cole and others. In

20

these proceedings sixty-five applicants are seeking from the Federal Court orders to review decisions made under section 32A of the Public Service Act 1922 that the applicants not be paid salary. Section 32A empowers the Public Service Board to declare that an officer or employee is not to be paid salary where the officer or employee refuses or fails to comply with a direction with respect to the work that he is performing or is to perform. The decisions in question were made following industrial action by members of the Administrative and Clerical Officers'

Association in regional offices of the Department of Social Security. The matter had not come on for hearing by 30 June 1982.

Prosecutions The statistics of prosecutions set out in the table at the end of this chapter relate to both summary prosecutions and prosecutions on

indictment. They cover prosecutions in State courts exercising federal jurisdiction and in the courts of the Australian Capital Territory

and the Northern Territory. Among those cases were many major prosecutions for the illegal importation of drugs (heroin or cannabis), frauds on the Commonwealth and Commonwealth author­

ities, and for offences against the Fisheries Act 1952, the Trade Practices Act 1974 and the Health Insurance Act 1973, involving alleg­ ations of overservicing and overcharging by

medical practitioners. The number of prosecutions involving the importation of heroin continued to increase. A significant factor in relation to those prosecutions, particularly those referred to as a result of the activities of the Common­ wealth-State Joint Task Forces, is the length of time trials are lasting.

The committal proceedings in Sydney against twenty defendants for alleged offences of conspiracy in relation to claims for sickness benefits and invalid pensions continued during the year under report. The Crown concluded its evidence on 13 July 1981 and delivered its closing address in ten

hearing days between 23 November 1981 and 8 December 1981, inclusive. Defence closing addresses commenced on 13 April 1982 and in

the course of these during May the presiding Magistrate indicated that he would not accept the evidence of one of the witnesses for the Crown. In consequence the Magistrate, on the invitation of the Crown, discharged sixteen of the defendants. Those discharged included fifteen persons who were said to have been patient beneficiaries. Although proceedings are continuing against

four defendants, the Crown no longer maintains its allegation of a general

conspiracy. The trial of thirteen persons accused of offences under section 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 commenced in the District Court in Sydney on 4 August 1981. The jury returned a verdict on 8 October 1981 convicting one of the defendants. It was unable to agree in respect

of three of the defendants and acquitted the remainder. On 9 October 1981 the defendant who was convicted was sentenced to four years" imprisonment with a minimum term of

twelve months. No further action is to be taken against the three defendants in respect of whom the jury was unable to agree.

Other litigation Other work of a litigious character in which the Division was engaged during the year included appearances before statutory

tribunals such as the Administrative Appeals Tribunal, work in relation to taxation appeals and work in respect of the proceedings to deregister the Australian Building Construc­

tion Employees' and Builders Labourers' Federation. The deregistration proceedings were commenced in the Federal Court on 25

September 1981 when an application by the Minister for Industrial Relations and the States of Victoria and Western Australia was lodged. Subsequently the State of South Australia and the Master Builders'

Association and others joined the proceed­ ings. A defence was filed on 15 March 1982. On 27 April 1982 the State of Victoria withdrew from the proceedings. A directions

hearing is expected on 2 August 1982.

Royal Commissions Mention was made in the last Annual Report

21

of the involvement of the Division in

providing staff and arranging for the briefing of counsel to assist the Royal Commission of Inquiry into the activities of the Federated Ship Painters’ and Dockers Union. That involvement has continued during 1981-82.

In addition the Division has played a similar role in relation to the Royal

Commission into the activities of Terrence John Clark and others involving drugs, and the Royal Commission into the Australian

Meat Industry. »

The Report of the Royal Commission into the Australian Building Construction Employees’ and Builders Labourers’ Feder­ ation was furnished to the Governor-General on 27 May 1982. There has been some litigation in which the Division has been involved arising out of or relating to this Royal Commission during the year. This, is referred to below.

• Australian Building Construction

Employees’ and Builders Labourers’ Federation v. Winneke. In this matter the Federation brought proceedings to restrain the Royal Commission from proceeding with its inquiry pending determination of the deregistration proceedings mentioned earlier, on the ground that the Royal Commission was in contempt of the Full Court of the Federal Court in those proceedings. The matter

ultimately came before the High Court, which on 16 December 1981 rejected the Federation’s contention that the Royal Commission was in contempt of the Federal Court. • Viner and others v. The Australian Building

Construction Employees’ and Builders Labourers’ Federation, Gallagher and others. On 21 April 1982 the Minister for Industrial Relations and others brought

proceedings in the Federal Court for criminal contempt against the Federation and others in relation to bans placed on a

Melbourne builder, H.M. Keast and Sons Pty Ltd, by the Federation. On 18 May 1982 Keely J fined the Federation $15 000, sentenced its General Secretary,

Mr Gallagher, to two months imprison­ ment and fined another official $500. Those orders are the subject of an appeal to the Full Court of the Federal Court.

The Federation brought two separate pro­ ceedings in the Federal Court for contempt, the first on 1 October 1981 against the publishers of the Melbourne Age and Herald newspapers and the second on 27 February

1982 against the Prime Minister. It was unsuccessful in both actions.

Agreement and property matters The variety and volume of property and agreement work performed by the Division on behalf of Commonwealth departments, authorities and other bodies was significant.

Matters of national significance are usually dealt with in the Central Office, while general property work is performed in the offices of the Division located in the States and Terri­ tories. The range of work performed is illustrated by the following examples of the

more important matters dealt with: • contracts for the construction of the new Parliament House; • Commonwealth-State Scheme for Co­

operative Companies and Securities Regulation — Second Amending Agree­ ment of Principal Agreement, Adminis­ trative Remedies Agreement and Fee Sharing Agreement; • matters connected with the proposed

formation of Trans-Australia Airlines as a public company; • guarantees of borrowings by airlines for the purchase of aircraft and the taking of

mortgages over those aircraft; e preparation of the Memorandum and Articles of Association for and the incorporation of Aussat Pty Ltd, the

company formed for the purposes of the Australian Domestic Communications Satellite; • River Murray Waters Agreement between the Commonwealth, New South Wales. Victoria and South Australia; • agreement between the Commonwealth and the Northern Territory, in relation to the mining of uranium in the Northern Territory; • preparation of documents for the transfer of the Commonwealth’s interests in minerals other than uranium in the Jabiluka Project Area to the Northern Territory to enable it to control the mining of gold in that area;

22

guarantees of borrowings by independent schools and other bodies; agreement to amend the Rural Adjust­ ment Scheme Agreement with the States; agreement to amend the agreement for

Commonwealth financial assistance to New South Wales under the Urban and Regional Development (Financial Assis­ tance) Act 1974; agreements under the National Water Resources (Financial Assistance) Act 1978; agreement for funding Migrant Resource

Centres; indemnity arrangements for international art exhibitions; preparation of a standard form of

agreement with registered health benefit organisations under the Health Insurance Act 1973; preparation of standard conditions of contract for consultancy services for the Department of Transport and Construc­ tion: provision of legal advice concerning the procurement of the Tactical Fighter Aircraft replacement for the Royal Australian Air Force; advices on the enforcement of guarantees; Commonwealth-State agreements in relation to the development of the

Albury-Wodonga growth area; advice and assistance in relation to matters associated with the redevelop­ ment of Garden Island in Sydney; completion of transfer of Commonwealth

lands to the State of New South Wales for creation of the Sydney Harbour National Park; preparation of documentation and advice

to the Overseas Telecommunications Commission (Australia) in relation to utilisation of Intelsat and on international transmission of business information; preparation of documentation and advice to the Phosphate Mining Company of Christmas Island in respect of its takeover of operations from the Christmas Island

Phosphate Commission; preparation of documentation and advice to various other bodies including the

Australian Atomic Energy Commission, the Australian Honey Board, the

Committee of Inquiry into Telecomm­ unications Services in Australia (the

Davidson Committee), the Australian Telecommunications Commission and the Department of Administrative Ser­

vices Purchasing Division; • work on the transfer of the Tasmanian State Railways to the Australian National Railways Commission; • work connected with the establishment of

the Australian Maritime College and the Antarctic Division of the Department of Science and Technology in Tasmania; and • compulsory acquisition of an area of the Castray Esplanade dockside in Hobart for the purpose of a site for scientific and industrial research for the Common­ wealth Scientific and Industrial Research Organisation. An officer of the Division also again participated in negotiations led by officers of the Australian Taxation Office in relation to proposed double taxation agreements with a number of countries.

Establishment of township at Jabiru The site of the township at Jabiru is land vested in the Director of National Parks and Wildlife and leased by him until 1 July 2001 to the Jabiru Town Development Authority. Arrangements were made during the year to ensure that the records of the Registrar- General in Darwin accurately reflected this situation. Arrangements are in hand to draw sub-leases from the Authority to the

Commonwealth in respect of the various premises within the township which it will occupy.

Uranium The Division continues to be involved in the provision of legal services relating to agreements concerning uranium. Matters dealt with included those related to

borrowing from and replacement of the Commonwealth's stockpile, environmental requirements at the Koongara Uranium Project, confidentiality agreements regarding

uranium enrichment, and agreements and advice relating to the Jabiluka Uranium Project.

Aboriginal land rights Officers continue to be involved in matters

relating to Aboriginal land rights. Work has · the introduction of improved manage- again included appearing at hearings by the ment and personnel practices. Aboriginal Land Commissioner of claims by During the year under report proposals for or on behalf of Aboriginal people for land in reorganisation of the top structure of the

the Northern Territory, and the preparation Division and of the Central Office of the of Deeds of Grant to enable the granting of Division which were in accordance with the such land to Aboriginal Land Trusts. In addition, officers have been preparing for hearings under the Aboriginal Land Act 1978 (Northern Territory) into applications for the closure of the seas adjacent to Bathurst and Melville Islands and adjacent to Castlereagh Bay and Howard Island.

Officers were also involved in proceedings in the High Court in which an order nisi for mandamus was sought against the Aboriginal Land Commissioner, and an order nisi for prohibition was sought against the Minister for Aboriginal Affairs by Meneling Station

Pty Limited. Those proceedings arose out of the presentation on 22 May 1981 by the Commissioner of his Report on the Finniss River Land Claim. The Commissioner recommended the granting of certain land near the Finniss River and around the village of Batchelor south of Darwin to two Land Trusts. The proceedings raise questions as to

the operation of sections 40 and 50 of the Aboriginal Land Rights (Northern Territory) Act 1976, and the question whether a grazing licence constitutes an estate or interest in land so as to prevent the land to which it relates from being considered to be unalienated (thus depriving the Commissioner of jurisdiction to consider a claim to such land). The applic­ ations were heard by the Full Court of the

High Court on 15 and 16 June 1982. The Court reserved its decision.

Joint Management Review Last year’s Annual Report referred to a Joint Management Review of the Crown Solicitor’s Division and to major recommendations in the report by the Review Team, namely: • reorganisation of the structure of the

Division; • the introduction of computerised word and data processing facilities in all offices; and

recommendations of the Review Team were approved by the Public Service Board. Appointments were made to positions in the reorganised structures. At 30 June 1982 a proposal for reorganisation of the Deputy Crown Solicitor's Office in Brisbane, in accordance with the recommendations of the Review Team, was with the Public Service

Board for consideration. Proposals relating to other offices will be submitted to the Board during 1982-83. Tenders for the supply and installation of computerised word and data processing facilities were called in September 1981. These closed in November 1981 and were evaluated by a departmental evaluation team. At 30 June 1982 contract negotiations were in progress. It is expected that the equipment will be installed in Brisbane before the end of

1982 and in all offices before the end of 1983. As part of the emphasis upon improved management, a program of regular visits to all offices by the Divisional Manager has been instituted for the review and upgrading of practices and procedures in operation in those offices. During the course of these visits, and otherwise, action has been put in hand to implement many of the recommen­ dations made by the Review Team. The task is an ongoing one.

A seminar was held in Canberra in

November 1981 for officers of the Division involved in property and agreements matters.

Trust accounts Each Deputy Crown Solicitor is responsible for a trust account which operates along similar lines to the trust account of a solicitor in private practice. During 1981-82 receipts into and payments out of these trust accounts each totalled in excess of $64.5 million.

24

Statistics of particular classes of matters received and dealt with in the Crown Solicitor’s Division in 1981-82

T y p e o f M a t t e r

New matters received Matters completed

1980-81 1981-82 1980-81 1981-82

C l a i m s b y a n d a g a i n s t th e C o m m o n w e a l th o r

a n a u t h o r i t y o f t h e C o m m o n w e a l th (a) 11 511 1 812 10 710 9 755

P r o s e c u t i o n s (b) 48 303 41 465 48 022 41 458

C o n v e y a n c in g a n d p r o p e r t y w o r k 2 834 2 566 2 861 2 647

B a n k r u p t c y a n d c o m p a n y l iq u i d a ti o n c a s e s 1 572 1 465 1 815 2 038

D e b t r e c o v e r ie s o n b e h a lf o f th e C o m m o n w e a lth

o r a n a u t h o r i t y o f th e C o m m o n w e a l th (c) 41 853 12 630 41 061 28 812

T o t a l 106 073 65 938 104 469 84 710

(a) Pursuant to amendments to the Finance Directions and other arrangements, certain minor claims are now being settled by departments and authorities. (b) Figures for prosecutions reflect a greater concentration of activity by law enforcement agencies on major rather than minor matters. (c) During the year, pursuant to the Review of Commonwealth Functions, certain debt recovery work was relinquished by the

Division, with consequent reductions in staff.

25

5: Federal Courts, Family Law, Territories and Law Reform Division

Functions of the Division

The Division has legal policy responsibility in relation to: • legislation concerning federal and ter­ ritory courts and tribunals;

• family law, including the Family Law Act 1975, the Marriage Act 1961 and the family law legislation in the Australian Capital Territory; • administrative law, including judicial and

non-judicial review of administrative decisions; • freedom of information legislation; • appointments to Federal and Territory

Courts and Tribunals; • international legal co-operation,

including arrangements relating to inter­ national recognition and enforcement of judgments, taking of evidence abroad and service of process abroad; • administration and reform of the laws of

the Australian Capital Territory admin­ istered by the Attorney-General except those relating to criminal and commercial law; • laws concerning evidence, judicial

procedure, service and execution of process and the interpretation of statutes. The Division comprises four Branches, the Family Law Branch, the Federal Courts and Administrative Law Review Branch, the Territories Branch and the Freedom of Information Branch.

Activities during 1981-82

During the year, the Freedom of Information Act 1982 was passed and, within the Division, the Freedom of Information Branch was es­

tablished. Before the Freedom of Informa­ tion Act was passed information activities were undertaken directed to creating an awareness in the public sector of what the legislation would ultimately contain. These activities were later supplemented by others — carried out in a wider framework of consultative groups and task forces

established on a service-wide and inter­ agency basis — concerned more directly with the implementation of the legislation. The establishment of the Freedom of Information Branch enabled additional resources to be brought to bear on the accomplishment of these latter tasks.

The work of the Federal Courts and Administrative Law Review Branch in ad­ vising departments and authorities on administrative law and review aspects of new policy proposals and draft legislation took on increasing importance in the light of the functions of the Senate Committee for the Scrutiny of Bills. The remedies available under the Administrative Decisions (Judicial Review) Act 1977 are now attracting more

widespread use. The number of appeals being taken to the Administrative Appeals Tribunal, particularly in its social security jurisdiction, is also increasing.

Important amendments were made to the Administrative Appeals Tribunal Act 1975 by the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, to change the membership structure of the Tribunal and its mode of operation.

The Federal Police Disciplinary Tribunal, established by the Complaints (.Australian Federal Police) Act 1981, came into operation in 1 May 1982.

Amendments were made to the Judges' Pensions Act 1968 and the Australian Capital Territory Supreme Court Act 1933. The Foreign Judgments (Reciprocal Enforcement)

(Amendment) Ordinance 1982 (A.C.T.) was made and will come into operation on 1 July 1982, and the Domicile (Consequential

26

Amendments) Act 1982 was enacted. Amend­ ments were introduced to the Courts-Martial Appeals Act 1955. A proclamation of the precincts of the High Court was prepared.

Further consideration was given to juris­ dictional questions relating to the Federal Court of Australia. in the Family Law Branch, a considerable

amount of work was undertaken on amend­ ments to the Family Law Act 1975 flowing from the Government's response to the Report of the Joint Select Committee on the

Act and to the Marriage Act 1961 to imple­ ment the Hague Convention on Celebration and Recognition of the Validity of Marriage. Interventions in a number of court pro­ ceedings under the Family Law Act 1975 and the Judiciary Act 1903 involved significant

policy questions. In quite a few instances, the cases were removed to the High Court. The Branch continued its major role in relation to the enforcement in Australia of maintenance orders made in countries with which Australia has bilateral enforcement arrangements, and in preparation for the implementation of the United Nations Con­

vention on Recovery Abroad of Maintenance Discussions with State officers in relation to the Convention continued. In the Territories Branch, work on the

Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 was successfully concluded. This resulted in a completely revised and expanded set of procedural rules and a greatly

increased monetary jurisdiction. It is expect­ ed that the workload of the Supreme Court of the Australian Capital Territory will be

relieved to some extent by a redirection of proceedings into the Court of Petty Sessions (A.C.T.). In addition, the Territories Branch also

saw to completion amendments to a number of existing Ordinances (Court of Petty Sessions Ordinance 1930, Small Claims Ordinance 1974, Trustee Ordinance 1957, Interpretation Ordinance 1967, Juries Ordinance 1967 and Family Provision Ordinance 1969).

The Branch continued to provide represen­ tation on interdepartmental bodies concern­ ed with the co-ordination of law reform activities in the Territory.

The following paragraphs describe m more detail matters of particular interest dealt with by the Division during the year.

Creation of Freedom of Information Branch On 15 September 1981, the Public Service Board approved the creation of the Freedom of Information Branch within the Division. That Branch was given functional responsi­

bility within the Division for the implementa­ tion of the Freedom of Information Act 1982.

Freedom of Information Act 1982 The Freedom of Information Bill 1981 received Royal Assent on 9 March 1982. The

Government set 1 October 1982 as the target date for bringing the Act into operation. The Bill, introduced into the Senate on 2 April 1981 and substantially amended in that chamber before being passed on 12 June

1981, was introduced into the House of Representatives on 18 August 1981. The Bill passed the House of Representatives on 24 February 1982.

Training on freedom of information legislation While the Bill was in the Parliament, the Division undertook, in conjunction with the Public Service Board, the conduct of an extensive training program. The purpose of the training was to familiarise departments and statutory authorities with the require­ ments of the freedom of information legis­ lation. Carried out in the latter half of 1981, the program consisted of fifteen one-day seminars for senior officers — covering all

States, the Australian Capital Territory and the Northern Territory — and nine four-day workshops (held in the mainland States and the Australian Capital Territory) for training officers and officers having implementation

responsibility within agencies subject to the Act. Some 1200 officers participated in these seminars and workshops. Officers of the Division also participated in

a number of "in-house’ training courses and the Division responded where possible to requests by non-government organisations for addresses or information on the freedom of information legislation.

The training program is to continue throughout the implementation stage of the Act. The Division is preparing more special-27

ised programs to be conducted in the latter half of 1982 for decision makers, specialist advisers and officers responsible for the collection of statistical information.

Regulations under the Freedom of Information Act 1982 Work on the preparation of the regulations necessary for implementation of the Act was undertaken.

Implementation of freedom of information legislation Extensive consultative arrangments designed to ensure a smooth commencement of the Act were also undertaken by the Division. Service-wide consultations were reflected primarily through the Interdepartmental

Working Party on FOI Implementation, which has responsibility for overseeing imple­ mentation of the Act, and the Inter-agency Consultative Committee, comprising a rep­ resentative cross-section of agencies, which provides comment and criticism to the Working Party. The Division also devoted considerable time and effort to the work of specialised task groups on the collection of statistics, the implications of the Act for ADP systems and the preparation of required publications.

The Division, in fulfilling its role of ad­ vising on the Act, developed a series of memoranda known as 'the FOI Memoranda' which provide a vehicle for the distribution of advice and guidance to the nearly 350 agencies which are subject to and have

responsibilities under the Act. In addition, numerous requests for oral and written advice on particular aspects of the Act as they affect individual agencies were dealt with.

Administrative Decisions (Judicial Review) Act 1977 Use of the remedies available under this Act increased during the year. One hundred and four applications were made to the Federal Court of Australia under the Act. In a

number of important decisions the Federal Court has given the Act a wide interpretation.

28

The Attorney-General intervened in one case, Finch v Goldstein and others (1981) 36 ALR 287, to make submissions relating to the application of rules of natural justice in the promotion appeal process. The Division has a continuing role in advising on questions of administrative law arising under the Act. A question of particular importance is who should be the active respondent in proceed­ ings under the Act in respect of decisions of independent tribunals.

Relatively few applications were made for statements of reasons to be furnished pursuant to section 13 of the Act. Awareness of the right to obtain reasons appears, how­ ever, to be increasing and more active use was made of this right in the later part of the year.

Some of the litigation under the Act has exposed deficiencies in the practices of departments and authorities. In the light of the decision in Finch v. Goldstein and others, the Division is assisting the Public Service Board in the development of guidelines for Promotions Appeal Committees to ensure compliance with the requirements of the Public Service Act 1922 and Regulations.

Administrative Decisions (Judicial Review) Regulations These regulations were made to extend, until 30 September 1982, the exemption under the

Administrative Decisions (Judicial Review) Act 1977 of promotion and transfer decisions in the public employment area from the obli­ gation to furnish reasons pursuant to section

13 of the Act. The regulations were dis­ allowed by the Senate on 23 March 1982. The Division, in consultation with the Public Service Board, subsequently prepared for circulation to departments and authorities a paper explaining the application of section 13 to promotion and transfer decisions in the

public employment area. The Division also assisted the Public Service Board in the preparation of amendments to the Public Service Act 1922 currently before the

Parliament which provide special arrange­ ments for the furnishing of reasons for promotion and transfer decisions. The application of section 13 is to be excluded where the special Public Service Act arrange­ ments apply.

Administrative Appeals Tribunal M ajor changes were made to the Administra­ tive Appeals Tribunal Act 1975 by the Statute Law (Miscellaneous Amendments) Act (No. 1)

1982. The changes include: • revision of the presidential member structure to distinguish between presi­ dential members who are Judges and

Deputy Presidents who are not Judges; • creation of separate office of senior

member; • provision for full-time Deputy Presidents and senior members to hold office until retiring age;

• provision for review by the Tribunal of a refusal to furnish a statement of reasons under the Act;

• amendment to enable the Attorney- General to intervene in proceedings; • amendment to enable the Tribunal to hand down decisions either orally or in

writing and to provide for written reasons to be given where requested. From 1 July 1981 the Tribunal has had jurisdiction under the Compensation (Com­ monwealth Government Employees) Act 1981. The jurisdiction of the Tribunal has been increased progressively in other areas throughout the year and it now has juris­ diction under a total of 119 enactments. New appointments to the Tribunal were made. It now has a total of thirty-nine members made up of seven presidential members, seven senior members (of whom three are full time) and twenty-five members. Further appoint­ ments are under consideration.

Senate Standing Committee for the Scrutiny of Bills During the year the Senate established a Standing Committee for the Scrutiny of Bills. The terms of reference of the Committee

require it to report to the Senate whether, amongst other things. Bills or Acts ‘make rights, liberties and obligations unduly dependent upon insufficiently defined administrative powers or non-reviewable administrative decisions'. The Committee reported on administrative law aspects of a

number of Bills and the Division prepared advice on matters in the Committee’s reports.

Federal Police Disciplinary Tribunal The Tribunal was established by the Com­ plaints (Australian Federal Police) Act 1981, which came into operation on 1 May 1982. Its

function is to hear and determine disciplinary matters relating to members of the Australian Federal Police and to inquire into and report on matters relating to members of the Australian Federal Police and to inquire into the report on matters referred by the

Minister. The first President of the Tribunal is Mr Justice Kelly, a Judge of the Supreme Court of the Australian Capital Territory and the Federal Court of Australia.

Papua New Guinea revenue judgments Following a decision of the Standing Committee of Attorneys-General that Papua

New Guinea income tax judgments should be recognised and enforced under the reciprocal enforcement of judgments legislation of the States and Territories, an Ordinance was made to amend the Foreign Judgments (Reciprocal Enforcements) Ordinance 1954 (A.C.T.) and Papua New Guinea was pro­ claimed for the purposes of that Ordinance. The amendment comes into force on 1 July

1982.

Domicile The Domicile Act 1982 and the Domicile (Consequential Amendments) Act 1982 were passed by the Commonwealth Parliament and come into operation on 1 July 1982. The

new legislation, which gives effect to decisions of the Standing Committee of Attorneys-General, makes four important

changes to the common law rules relating to domicile. These four changes are: • abolition of the rule of dependent

domicile of married women; • abolition of the rule of revival of domicile of origin; • the age of capacity to have an independent

domicile is fixed at 18 years; • new rules are provided for determining the domicile of certain children.

29

Australian Capital Territory Supreme Court Act 1933 Amendments to the Australian Capital Territory Supreme Court Act 1933 were made by the Statute Law (Miscellaneous Amend­ ments) Act 1981 and the Statute Law

(Miscellaneous Amendments) Act (No. 1) 1982. The 1981 amendments included a new provision for the Supreme Court to include, in any judgment for a pecuniary amount, an amount in respect of interest up to judgment.

The 1982 amendments changed the desig­ nation of the Chief Judge of the Supreme Court to ‘Chief Justice’. This brings the designation into line with the Supreme Courts of all the States and the Northern Territory. It was also made clear that a Judge of the Federal Court of Australia who is appointed to the Supreme Court is not entitled to double salary.

Bankruptcy jurisdiction Following amendment of the Bankruptcy Act 1966 by the Statute Law (Miscellaneous Amendments) Act (No. 2) 1981, the Federal Court of Australia now exercises bankruptcy jurisdiction in South Australia. Following

appointment of a Federal Court Judge resi­ dent in Brisbane, the Federal Court now exercises bankruptcy jurisdiction in the Southern District of the State of Queensland.

Hague Convention on Service Abroad of Judicial and Extra­ judicial Documents in Civil and Commercial Matters Work is continuing on implementation of this Convention in Australia. Amendments are being sought to regulations and rules of court and consideration is being given in the Standing Committee of Attorneys-General to the machinery required to give effect to the Convention in Australia.

effects that would otherwise arise when the United Kingdom becomes a party to the European Economic Community Conven­

tion on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters has been deferred, at the request of the United Kingdom, pending the completion by the

United Kingdom of negotiation of a similar treaty with Canada.

Jury Exemption Act 1965 Because of other pressures it has not been possible to complete a review of exemptions under the Jury Exemption Act 1965 and the Jury Exemption Regulations. It is hoped that

this project can be given priority during the coming year.

Courts-Martial Appeals Act 1955 M ajor amendments to the Act and to other defence force disciplinary matters are includ­ ed in the Defence Force Discipline Bill 1982 and the Defence Force (Miscellaneous Pro­ visions) Bill 1982. The name of the Courts- Martial Appeal Tribunal is to be changed to Defence Force Discipline Tribunal and the Tribunal is to be constituted by serving Judges. Provision is made for the Tribunal to

refer a question of law to the Federal Court. There is also provision for an appeal as of right to the Federal Court from the Tribunal on a question of law.

Precincts of the High Court During the year the Government has ap­ proved the making of a proclamation declaring an area of land adjacent to the High Court building in Canberra to be the pre­ cincts of the High Court. The Proclamation is expected to be made in July 1982. It gives the

High Court control over its precincts and the Clerk of the Court has power, on behalf of the Court, to give directions regulating the conduct of persons in the area.

Proposed bilateral treaty with the United Kingdom on enforcement of Federal Court jurisdictional issues judgments Questions of jurisdictional conflict between

Further consultations on the proposed Federal and State Courts, particularly ques- bilateral treaty to avoid the discriminatory tions arising in relation to the exclusive nature

30

of the jurisdiction of the Federal Court of Australia in certain matters arising under the Trade Practices Act 1974, continued to attract public attention and debate. These matters were given detailed consideration in the

Standing Committee of Attorneys-General. The constitutional implications of the diffi­ culties are being considered in Standing Committee D of the Constitutional Conven­

tion. The Division provided assistance on this m atter to both the Standing Committee of Attorneys-General and to a subcommittee of Standing Committee D.

Service and Execution of Process Act 1901 The Attorney-General has agreed to a refer­ ence being made to the Law Reform

Commission under the Law Reform Commis­ sion Act 1973 for the purpose of reviewing the Service and Execution of Process Act 1901. It is expected that the reference will be made

shortly.

Judges tensions Amendment Act 1981 The Act, which received Royal Assent on 27 October 1981, changed the Judges’ Pensions

Act 1968 in three basic respects: • pensions and pension entitlements pre­ viously based on Australian Industrial Court or Federal Court of Bankruptcy

salaries are now based on salaries payable to Judges of the Federal Court of

Australia; • pensions in respect of children of deceased judges, previously based wholly or in part on fixed annual amounts determined in

1968, are now a percentage of pension that would have been payable to the deceased judge; ® judges who are required to retire on

reaching mandatory retiring age before serving the ten-year qualifying period are now entitled to pro rata pensions after six years of service.

Following debate in the Parliament on the scheme of pensions for judges, the Attorney- General announced that he proposed to have an investigation made of judges' pensions

schemes, both in Australia and overseas, and to make available the result of the investi­ gation in the form of a discussion paper that

would be tabled in the Senate. Information has been sought on judges' pensions schemes in a number of other countries and a dis­ cussion paper is being prepared.

Response to Report of Parliamentary Joint Select Committee on the Family Law Act 1975 During the year under review, the Division co-ordinated the Government’s Response to the Report of the Joint Select Committee appointed to inquire into the provisions and operation of the Family Law Act 1975. The

Response, which was delivered in Parliament on 13 October 1981 by the Attorney-General, canvassed in detail the recommendations of the Report, many of which are dealt with in the Family Law Amendment Bill, and gave reasons in respect of the small number of

legislative recommendations that the Govern­ ment has decided, after due consideration, could not or should not be implemented in the Bill. The Response also detailed the admin­

istrative or non-legislative action to be taken with regard to the Report's recommendations not involving amendment of the Family Law

Act or other legislation.

Amendments to Family Law Act 1975 Legislation to amend the Family Law Act in accordance with a number of the recomm­ endations of the Parliamentary Joint Select Committee on the Family Law Act was intro­ duced into Parliament on 20 October 1981. The more significant of these amendments were mentioned in last year’s Annual Report.

On 7 March 1982 the Attorney-General announced that he would move further amendments as a result of public comment and submissions. The further amendments were made available before debate began in the Senate on the Family Law Amendment

Bill.

Artificial insemination and in vitro fertilisation During the year under review the question of

31

the status of children conceived by artificial insemination by donor and in vitro fertilis­ ation was discussed in the Standing Com­ mittee of Attorneys-General. The Division prepared papers for the Standing Committee on the legal issues involved. A draft model Bill is now before the Standing Committee.

International Convention on Child Abduction The Division continued its examination of the Hague Convention on International Child Abduction, in consultation with the States, with a view to ratification by Australia as soon as possible. The matter has been referred to the Standing Committee of Attorneys-General for consideration.

United Nations Convention on Recovery Abroad of Maintenance Regulations are being drafted to enable Aust­ ralia to accede to the United Nations

Convention on the Recovery Abroad of Maintenance, which enables a person living in one country which is a party to the

Convention to institute proceedings for the recovery of maintenance against a person living in another country which is also a party. Negotiations with the States and the Northern Territory have been initiated on the possibility of their officers performing some of the functions necessary to be performed in order for Australia to fulfil its obligations under the Convention, in order to avoid unnecessary and costly duplication.

Inquiry to investigate new laws affecting matrimonial property In its response to the Report of the Parlia­ mentary Joint Select Committee on the Family Law Act 1975, the Government stated

its intention that the question of a detailed study of a matrimonial property code, as recommended in the Report, should be the subject of an inquiry by a specialist

committee. On 13 October 1981 the Attorney-General announced in the Senate that a Committee of Inquiry would be appointed for the purpose.

32

The Committee is to consist of a full-time member with appropriate qualifications and expertise and four part-time members, and will consult with the Family Law Council.

The Committee will be required to report within two years of its establishment. Work is proceeding on the appointment of the members of the Committee, the drafting of the terms of reference for the Committee and the administrative matters involved in the establishment of the Committee. The Attorneys-General of the States have been consulted in relation to the membership of and terms of reference for the Committee.

Appointments Appointments of several welfare officers, as provided for in the Family Law Act 1975, were made during the year. Five new members were appointed to the Family Law Council by the Attorney-General to replace retiring members.

M aintenance Orders (Commonwealth Officers) Act 1966 On 20 October 1981 a Bill to amend the Maintenance Orders (Commonwealth Officers)

Act 1966 was introduced into Parliament. The Bill proposes amendments to the Act con­ sequential upon the Family Law Act 1975.

Overseas Maintenance Enforcement Negotiations with a large number of states of the United States of America were com­ menced during the year under review, with a

view to making bilateral arrangements under the Family Law Regulations for reciprocal enforcement of maintenance orders between Australia and those states. At present, California is the only state declared under the

Family Law Regulations to be a reciprocating country for this purpose. The Division con­ tinued its co-ordinating role with regard to the arrangements made between the Com­ monwealth and the States, whereby the States assist in enforcing overseas maintenance orders and are reimbursed by the Common­

wealth.

Intervention in judicial proceedings During the year the Attorney-General inter­ vened in some proceedings in which the con­ stitutional validity of the Family Law Act 1975

was called into question. Important decisions of the High Court handed down in respect of these matters include: • Gazzo v. The Comptroller of Stamps;

ex parte the Attorney-General; • Fountain v. Alexander.

These cases are referred to in Chapter 4.

Amendments to Marriage Act 1961 During the year under review, a Bill to amend the Marriage Act 1961 was prepared. The main purpose of the amending Bill is to enable Australia to ratify the Hague Con­ vention on Celebration and Recognition of the Validity of Marriages, as referred to in last year’s Annual Report.

Opas M emorial Library On 4 March 1982, the Attorney-General opened the library established at the Parra­

matta Registry of the Family Court of Australia as a memorial to the late Mr Justice Opas, a Judge of the Court.

Dual commission: appointment of Judge of Family Court of Western Australia to Family Court of Australia

On 9 February 1982, the Chairman of Judges of the Family Court of Western Australia, the Honourable Alan James Barblett, was appointed a Senior Judge of the Family Court

of Australia, thereby enabling him to part­ icipate in the appellate work of the Family Court of Australia.

Sexual reassignment During the year under review, the Standing Committee of Attorneys-General continued its consideration of the legal implications of

the sexual reassignment of transexuals. The Division prepared papers for the Standing Committee on the legal issues involved.

Family Court in the Australian Capital Territory The report of the Committee of Extension of

Jurisdiction of the Family Court in the Australian Capital Territory, referred to in last year’s Annual Report, is the subject of discussions with the Department of the Capital Territory with a view to its imple­

mentation.

Inter-departmental Co-ordinating Committee on Law Reform in the A .C .T . The Division has provided some of the de­ partmental representation on the Committee, whose participants include, besides the interested departments, the Chairman of the

Law Reform Commission and representa­ tives of the Law Society and Bar Association in the Australian Capital Territory. The Territories Branch also provided representa­

tion on the Committee's Drafting Priorities Subcommittee.

Evidence law The Division has continued to assist the Law Reform Commission with the provision of

material relevant to the Commission's reference to review the laws of evidence applicable in federal courts and the courts of the Territories. In addition, an officer of the

Division has acted as a consultant to the Commission for the purpose of this reference.

On-the-spot procedures for moving traffic offences The 1980—81 Annual Report mentioned the decision of relevant Ministers to implement

an on-the-spot infringement notice system. The scheme was not introduced during the year under review due to lack of progress on preparation of legislation.

The interest of the Division in this matter lies in the reduction of the workload of the Court of Petty Sessions which should result from introduction of the system.

33

Court of Petty Sessions (Civil Juris­ diction) Ordinance 1982 (A.C.T.)

The Annual Report 1980-81 referred to draft legislation to revise the civil jurisdiction and procedure of the Court of Petty Sessions in the Australian Capital Territory.

Extensive consultations with outside bodies interested in the legislation (including the House of Assembly (A.C.T.) through its Select Committee set up to consider the Ordinance, the judiciary in the Territory and the Territory's Law Society and Bar

Association) were undertaken and led to revision of the preliminary draft Ordinance. The Court of Petty Sessions (Civil

Jurisdiction) Ordinance 1982 was made on 25 June 1982. It contains comprehensive pro­ visions dealing with the procedure of the Court and, in this respect, will replace provisions in the Court of Petty Sessions Ordinance 1930 (A.C.T.) which have remained substantially unaltered since the Court’s inception. The revised and expanded provisions governing the Court’s procedure are especially important in view of the increase in the Court's civil jurisdiction to $ 10 000 (from $2500) made by the Ordinance. This will enable proceedings to be

brought in the Court in many cases where otherwise the proceedings would have to be brought in the Supreme Court. The increase in the monetary limit to the Court's jurisdiction will have two significant consequences. One is that the costs to the parties will be lower; the other is that the Supreme Court will be relieved of some of its workload.

The provisions of th e Court of Petty Sessions Ordinance 1930 relating to appeals to the Supreme Court and the enforcement of judgment debts will apply to judgments

obtained under the Ordinance. The latter provisions have been supplemented by provisions enabling a judgment of the Court of Petty Sessions to be enforced as a Supreme Court judgment (for which additional remedies are available) upon registration of the judgment in the Supreme Court. This is an interim measure only pending a complete review (to be undertaken as a matter of priority) of the provisions concerning appeals and the enforcement of judgment debts.

34

Small Claims Ordinance 1974 (A .C .T .) An Ordinance has been introduced to amend the Small Claims Ordinance 1974 to increase the monetary limit of the jurisdiction of the Court of Petty Sessions (A.C.T.) in small claims to $2000 (from ($1000) and to make consequential amendments to the Ordinance to coincide with the introduction of the Court of Petty Sessions (Civil Jurisdiction) Ordinance

1982. Following introduction of this amending Ordinance work is progressing on the review of the Small Claims Ordinance 1974 referred to in the Annual Report 1980-81.

Trustee Ordinance 1957 (A.C.T.) deposits with building societies The Ordinance was amended to include the

making of deposits with approved building societies authorised trustee investments. The A.C.T. Association of Permanent Building Societies was consulted on the conditions with which approved building societies will be expected to comply. Once the further step of specifying the approved building societies has been completed, the on-going task of ensuring compliance with these conditions will be carried out by the Registrar of Co­ operative Societies (A.C.T.).

Interpretation Ordinance 1967 (A .C .T .) Following the amendment of the Acts Inter­ pretation Act 1901 to provide for the courts to

have regard to the purpose of the legislation in the interpretation of Commonwealth statutes, the Interpretation Ordinance 1967 has been amended to make like provision for the interpretation of Australian Capital Territory legislation.

Family Provision Ordinance 1969 (A .C .T .) An amendment has been made to the Family Provision Ordinance 1969 to permit the

Supreme Court of the Australian Capital Territory to increase the amount payable

under an order made by it under the Ord­ inance for periodical payments out of a deceased estate to the ‘family’ of the deceased.

Juries Ordinance 1967 (A .C .T.) — challenges and oaths The amendments to the Juries Ordinance 1967 (relating to challenges for cause and jurors' oaths) referred to in the Annual Report 1980—

81 have been made.

Court of Petty Sessions Ordinance 1930 (A .C .T .) — setting aside a conviction An amendment has been made to the Court of Petty Sessions Ordinance 1930 to permit an

informant to apply to the Court to set aside a conviction entered in the absence of the defendant.

Enforcement of fines against companies An amendment has been made to the Court of Petty Sessions Ordinance 1930 (A.C.T.) pro­

viding for the reciprocal enforcement of fines and similar orders imposed on companies as between the Territory and the States.

Legal Aid Ordinance 1977 (A.C.T.) A draft Ordinance has been prepared to amend the Legal Aid Ordinance 1977 in relation to the composition of the A.C T.

Legal Aid Commission, the review of certain decisions, the Commission’s control over policy, the Commission's right to obtain information from its officers and the con­

sequences of the abolition of the

Commonwealth Legal Aid Commis­ sion and its replacement by the Common­ wealth Legal Aid Council. The draft Ordinance has been submitted to the House

of Assembly and other interested bodies for consideration and is being examined further in light of comments received.

Public Trustee for the Australian Capital Territory Work is continuing on the establishment of an

office of Public Trustee in the Australian Capital Territory. It is intended that the necessary amend­ ments will be made to the Administration and Probate Ordinance 1929 to enable the Public Trustee to take over the functions performed under that Ordinance at present by the Curator of the Estates of Deceased Persons. It is also envisaged that the Public Trustee will be empowered to perform certain functions

(pursuant to legislation replacing Parts VII and VIII of the Lunacy Act, 1898 (N.S.W.)in its application to the Territory) with regard to the property of persons which those persons are unable to do themselves by reason of

mental disability.

Protected persons and property Work is proceeding on the preparation of an Ordinance to replace Parts VII and VIII of

the Lunacy Act. 1898 (N.S.W.) in its

application to the Territory. The desirability of this being done was noted by the House of Assembly (A.C.T.) in connection with its consideration of the proposed Mental Health Ordinance (prepared by the Capital Territory

Health Commission) which will replace other parts of the Lunacy Act. The work on Parts VII and VIII is also related to work on the establishment of an Office of Public Trustee (see above).

New South Wales Acts application Work is proceeding on the preparation of Ordinances which will reproduce those New South Wales Acts that are to remain in force

in the Australian Capital Territory, but are not at present to be found reproduced as part of an Ordinance of the Territory. (The reproduced Acts will contain the necessary

adaptations for their application in the Territory and will have effect in the form in which they are reproduced.) Due to the amount of work involved, all of the Acts to remain in force will not be dealt with in a single Ordinance but some which can be prepared for reproduction without delay will be reproduced in the first Ordinance. Thereafter, work will be undertaken to complete the reproduction of the remaining

Acts in one or more further Ordinances and

35

to repeal all New South Wales Acts not reproduced in an Ordinance.

Trustee Companies Ordinance 1947 (A .C .T .) A draft of an amending Ordinance (relating to common trust funds) has been circulated to interested bodies and comments received. The draft legislation is being considered further in the light of representations received from the Trustee Companies Association of Australia and New Zealand.

Limitation of actions Work is proceeding on the preparation of an Ordinance relating to limitation of actions in the Australian Capital Territory. The pro­ posed Ordinance will replace Imperial legislation that applies in the Territory.

Notaries public A draft Ordinance to replace existing procedures for appointment of notaries

public in the Australian Capital Territory has

been prepared and is under examination.

Oaths Instructions are being prepared for an Ordinance for the Australian Capital Terri­ tory relating to oaths and affirmations. The new legislation will replace the Oaths Act,

1900 (N.S.W.) in its application to the Territory.

Wills Ordinance 1968 (A.C.T.) Drafting of amendments to the Ordinance to provide rules as to the form of testamentary dispositions in conformity with the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions has been put in train.

Legal Practitioners Ordinance 1970 (A .C .T .) The Law Society of the Australian Capital Territory has sought several changes in this Ordinance. Work is proceeding on a number of these matters in consultation with the Society.

6: Justice Division

Functions of the Division

The Justice Division is responsible for the administration and review of laws, and the formulation and implementation of legal policy and law reform proposals, relating to:

• human rights and civil liberties including discrimination, censorship, privacy, de­ famation and criminology; • criminal law (Commonwealth), including

criminal law in the Australian Capital Territory and Norfolk Island and crimes overseas; • Commonwealth prisoners, parole and remissions of sentences; • extradition; • Australian Security Intelligence Organiz­ ation; • visiting forces; and • treaties and arrangements with other countries for the extradition of offenders

and arrangements for the taking of evidence in Australian courts for the purposes of criminal proceedings in other countries.

Activities during 1981-82

Human Rights Commission On 10 December 1981 the Human Rights Commission Act 1981 came into effect pursuant to proclamation and the Human

Rights Commission established under that Act commenced operation. The Chairman of the Commission is the Honourable Justice Dame Roma Mitchell, D.B.E. The Deputy

Chairman of the Commission is Mr Peter

Bailey, O.B.E. The other members are: Professor Manuel Aroney, Professor Peter Boyce, Mrs Norma Ford, Mrs Eva Geia, Mr Christopher Gilbert and Ms Elizabeth

Hastings.

International Covenant on Civil and Political Rights Following Australia’s ratification of the International Covenant on Civil and Political

Rights on 13 August 1980, Australia has submitted, in pursuance of Article 40 of the Covenant, a report on measures adopted to give effect to the rights recognised in the Covenant. The report was submitted to the United Nations on 11 November 1981.

Racial discrimination The Division continues to be responsible for the administration of the Racial Discrimina­ tion Act 1975, and for policy matters

concerned with the elimination of racial discrimination in Australia. It has provided legal advice on the operation of the Act to various departments and authorities.

Australia’s third Report to the United Nations Committee on the Elimination of Racial Discrimination was considered by that Committee in March 1982. The Division

assisted in the preparation of the report. In a significant decision on the Racial Discrimination Act in May 1982 (Koowarta v. Bjelke-Petersen and others) the High Court of

Australia upheld the constitutional validity of sections 9 and 12 of the Act.

M eeting of Ministers on Human Rights The Division provides the Secretariat for the Meetings of Ministers on Human

Rights,which are attended by Common­ wealth and State Ministers responsible for

37

human rights. During the year Ministers met on three occasions and discussed human rights matters of concern to all governments.

Convention on the Elimination of A ll Forms of Discrimination against Women Following Australia’s signature of the Con­ vention in July 1980, negotiations by the Commonwealth with the States through the

Meeting of Ministers on Human Rights have been continuing with a view to early ratifi­ cation of the Convention. As well as its contributions to the work of the Meeting of Ministers, the Division provided during the year departmental representation on the committee co-ordinating formulation of the Commonwealth’s attitude towards the Convention.

Defamation laws Following the receipt in June 1979 of the Law Reform Commission's Report, Unfair Publi­ cation: Defamation and Privacy, the Attorney- General, with the concurrence of the Attorneys-General of the States and the Northern Territory, referred the matter of defamation law reform to the Standing Committee of Attorneys-General. Consider­ ation of the matter in the Standing

Committee is well advanced.

Privacy The Law Reform Commission in its report Unfair Publication: Defamation and Privacy dealt with some aspects of the reference made to it on privacy. In its report Privacy and the Census it dealt with other aspects. Within the Department, the Human Rights Branch is responsible for consideration and imple­ mentation of these reports. The Commis­ sion’s major report on the reference is expected to be completed before the end of

1982.

Refugees The Division continued to provide depart­ mental representation on the Determination of Refugee Status Committee.

Censorship In this area the Division gave legal advice on issues arising out of the administration of laws relating to the censorship of literature and films.

Ethnic Liaison Officer Scheme An officer of the Division continued to act as this Department’s Ethnic Liaison Officer under the Scheme. The work included rep­ resenting the department at meetings and co­ ordinating the implementation of those recommendations in the 1978 report Review of Post-arrival Programs and Services to Migrants (the Galbally report) for which the department is responsible.

Criminology In March 1982 the Attorney-General appointed Mr A.C.C. Menzies, O.B.E., as Chairman of the Board of Management of the Australian Institute of Criminology and Commonwealth member of the Criminology

Research Council. At the time of those appointments, Mr Menzies was First Assistant Secretary of the Division.

Criminal Investigation Bill After the Criminal Investigation Bill 1977 lapsed with the dissolution of the Parliament in November 1977, the Bill was reviewed in the light of criticisms and comments received. A revised Criminal Investigation Bill was introduced into the Senate on 18 November

1981, and debate on the Bill is expected to commence in the Budget Session of the Parliament, 1982. The Bill sets out in a clear and precise form the rights and duties of citizens and members of the Australian Federal Police in relation to the investigation of offences against laws of the Commonwealth and the Australian Capital Territory. Significant among the

reforms effected by the Bill are that a person held in custody will be given a specific right to be assisted by a lawyer; strict criteria are laid down for arrest without warrant, the taking of fingerprints and other identification

38

procedures; restrictions are placed on the questioning of Aboriginals and Torres Strait Islanders except in the presence of a

'prisoner's friend’ and on the questioning of persons not fluent in English except in the presence of an interpreter; substantial alterations are made to the system of police bail; rules are laid down for the recording and admissibility of oral confessions made to police officers; general search warrants are abolished and specific provision is made for

the granting of search warrants, detailing the situations in which searches may be con­ ducted without warrant and providing for the issue of a warrant upon request by telephone.

Since the introduction of the 1981 Bill a considerable number of submissions and comments have been received. In February 1982 a seminar on the Bill was held in

Melbourne under the auspices of the Law Council of Australia and the Australian Institute of Criminology in collaboration with the department. The seminar was opened by the then Minister for Employment

and Youth Affairs, the Honourable N.A. Brown, Q.C., M.P., on behalf of the

Attorney-General and co-chaired by the Solicitor-General, Sir Maurice Byers, C.B .E., Q.C., and the President of the Law Council, Mr D. Mackay.

Crimes Amendment Act 1982 The Crimes Amendment Act 1982 was passed by the Parliament on 25 May 1982. The Act updates and revises a number of the pro­

visions of the Crimes Act 1914 to take into account modern concepts, particularly in the area of sentencing, and to remove anomalies and defects revealed in the administration of the Act. In particular, a new section 17A

requires courts in sentencing federal and A.C.T. offenders not to impose imprison­ ment except as a last resort. The Act also makes available to courts

various non-custodial sentencing options (e.g. community service orders) available in similar circumstances under the laws of the State or Territory in which the offender is

convicted. Action is presently being taken with a view to proclamation of the commencement of the Act at an early date.

Crimes (Currency) Act 1981 This Act, which consolidates and updates the law relating to the counterfeiting of currency and certain government securities (both

domestic and foreign), was passed during the Budget Session of the Parliament, 1981. At 30 June 1982 it had not been proclaimed to

come into operation.

Criminal law reform in the Australian Capital Territory The Division was involved in a number of significant projects of criminal law reform in the Australian Capital Territory . These were:

• Rape law reform: Draft legislation to reform the substantive law of rape and certain evidentiary aspects of rape prose­ cutions is expected to be submitted to the

A.C.T. House of Assembly for considera­ tion in the near future. Generally speaking the proposed reforms are consistent with the relevant recommendations of the

Royal Commission on Human Relation­ ships. • Criminal injuries compensation: Draft legislation to establish a government-

funded criminal injuries compensation scheme for the Australian Capital Terri­ tory is at an advanced stage. • Community service orders: Some further redrafting of the legislation to provide an additional sentencing option for Judges and Magistrates in the Australian Capital Territory — that of community service orders — has proved necessary. When

this is satisfactorily completed the Bill will be forwarded to the A.C.T. House of Assembly for consideration. • A.C.T. Consultative Committee on Criminal Law: Officers of the Division

represent the Department on this Com­ mittee. It comprises members of the legal profession, academic lawyers and mem­ bers of interested government depart­

ments. Its Chairman is Mr Justice Kirby, the Chairman of the Law Reform Com­ mission. Amongst matters that are being considered by the Committee are the form of committal proceedings in the Aust­

ralian Capital Territory, costs in criminal cases and the order of closing speeches in jury trials. The Committee has also made

39

an examination of amendments to the Crimes Act, 1900 (N.S.W.) to identify those suitable for enactment in the Aust­ ralian Capital Territory. A bill making the first set of such amendments has been sent to the A.C.T. House of Assembly. A draft of the second Bill is being examined.

Conditional release of Commonwealth prisoners Recommendations are formulated * in the Division for the conditional release of Com­ monwealth prisoners by parole orders under section 5 of the Commonwealth Prisoners Act

1967, or on licences granted under either section 19 A of the Crimes Act 1914 or section 8A of the Removal of Prisoners (Territories) Act 1923. Parole and licence statistics for the year ended 1981-82 are as follows:

Parole Prisoners considered 82

Parole granted 62

Parole refused 17

Parole refused at prisoners request 3

Licences Prisoners considered 117

Granted 63

Refused 54

• Revocations The Governor-General, on the recom­ mendation of the Attorney-General, revoked two parole orders and two licences.

Parole In February 1982 the Governor-General made the Parole (Amendments) Ordinance 1982 (A.C.T.). The most important amendment effected by the Ordinance was to enlarge the membership of the Parole Board of the Australian Capital Territory from three to five to enable wider community partici­

pation in the work of the Board.

Parole Transfer Model legislation has been approved by the Standing Committee of Attorneys-General to facilitate the movement interstate of State

and Territory offenders who are released into

40

the community on parole. A draft of the relevant Ordinance for the Australian Capital Territory is being considered.

Commonwealth legislation for interstate transfer of prisoners The Standing Committee of Attorneys- General has agreed to proposals for legis­ lation for the interstate transfer of

Commonwealth, State and Northern Terri­ tory prisoners. Commonwealth legislation to give effect to the agreement is being drafted.

Defence Force Discipline Bill The Defence Force Discipline Bill was intro­ duced into Parliament in April 1982.

Child Welfare In 1981 the Law Reform Commission completed a two-year investigation into the law and practice in the Australian Capital Territory. The report has been tabled in

Parliament and an Inter-departmental Committee chaired by the Department of the Capital Territory is now considering the implementation of its recommendations. An officer of the Division is a member of the Committee.

Extradition treaties Indonesia and the Philippines have agreed to commence formal negotiations and a model treaty is being prepared by Australia as a basis for those negotiations. Agreement has been reached with the Federal Republic of Germany and Finland for the conclusion of treaties. Signature and implementation of those treaties is expected to take place this year. Agreement on the English text of a treaty with Norway has been reached. The

Norwegian language text has been received and is under examination. Agreement on the English text of a treaty with Denmark has been reached. Examination of the Danish language text was recently completed and following resolution of some minor matters it is expected that agreement will be reached shortly.

Extradition cases Statistics of extraditions during the year are as follows: • Extradition to Australia

Requests granted 4 (United Kingdom, United States of America, Hong Kong, Canada) Requests refused

1 (Sri Uanka) Still proceeding 13 (United Kingdom (2), Malaysia (3), United States of America (5), Italy (1),

Switzerland (1), India (1)) • Extradition from Australia Requests granted 3 (United Kingdom, United States of

America, Canada) Requests discontinued 1 (Hong Kong) Still proceeding

10 (Spain, Greece, Iraq, Sweden, Yugoslavia (2), United States of America, Argentina, Western Samoa, Romania)

Requests to take evidence Section 27 of the Extradition (Foreign States) Act 1966 provides that where a foreign State requests that evidence be taken in Australia for the purposes of a criminal matter pending

in a court or tribunal of that foreign State, the Attorney-General may authorise a magistrate to take the evidence. Section 33AB of the Extradition (Commonwealth Countries) Act

1966 makes similar provision for a request made by a Commonwealth country. During the year the Division assisted in the obtaining of evidence pursuant to these provisions for

use in criminal proceedings overseas in relation to three matters.

Agreements for the international transfer of prisoners Canada, Papua New Guinea and New Zealand have agreed to enter into negot­

iations for the conclusion of agreements for the transfer of prisoners. Consultation with the States and the Northern Territory has commenced with a view to settling an

Australian negotiating stance.

Agreement with Switzerland for mutual assistance in criminal matters In 1981 the Attorney-General approved the commencement of negotiations with the

Swiss for a treaty for mutual assistance in criminal matters. Following enactment of Swiss legislation later in that year, a bilateral agreement is required to complete the arrangements. Negotiations with a view to an agreement have commenced.

Standing Advisory Committee on Commonwealth-State Co-operation on Protection against Violence This Committee is especially concerned with

terrorism. The Department is represented on it by an officer who chairs a subsidiary Legislation Working Group.

Protective Security An officer of the Division chairs an Inter­ departmental Committee on departmental security procedures. The Committee has produced the Protective Security Manual, which is designed to assist departments and authorities with the drafting of instructions relating to the security of classified material. The Manual has been distributed and the Committee is monitoring the operation of the new procedures.

Royal Commissions The Justice Division is responsible for advising the Attorney-General on legal policy

issues arising in connection with current Commonwealth Royal Commissions. In the context of the Royal Commission of Inquiry into Drug Trafficking, chaired by Mr Justice

Stewart, the Division has been responsible for arrangements with New Zealand which would permit the Commission to take

evidence in that country. The necessary amendments to the Royal Commissions Act 1902 were passed during the Autumn Session of Parliament. More recently, the Division has been involved with the proposal to give

new terms of reference to the Royal

Commission to enable it to inquire into all

41

illegal activities of the Nugan Hand organ­ isation. The Division was also involved in the development of legislation (now enacted) to facilitate access by that Commission, and other relevant Royal Commissions, to information held by the Australian Taxation Office.

National Crimes Commission The Division is currently developing proposals relating to the possible establish­

ment of a National Crimes Commission to control organised crime and official

corruption.

Security Appeals Tribunal The Division continued to provide assistance to the Security Appeals Tribunal established under the Australian Security Intelligence Organization Act 1979 to review adverse or qualified assessments made by the Australian Security Intelligence Organization.

42

7: Legislative Drafting Division

Functions of the Division

The functions performed by the Legislative Drafting Division have continued unchanged during the year under review. Those func­ tions are:

• the drafting of regulations and rules under Commonwealth Acts;

• the drafting of Ordinances and Regula­ tions of the Australian Capital Territory and the external territories;

® the drafting of other instruments for execution by the Queen or the Governor- General;

• the making of arrangements for the

printing, gazettal, publishing and tabling of legislation for which the Division has drafting responsibility;

• legal editorial work in connection with the publication of the laws of the Common­ wealth and of the Territories.

Activities during 1981-82

Regulations under Commonwealth Acts During the year under review, the demand for the drafting of regulations continued at the same level as in 1980-81. The Division dealt with 476 separate sets of instructions. Of the resulting regulations, the following may be mentioned:

Australian Federal Police: The Com­ plaints (Australian Federal Police) Act 1981 came into operation on 1 May 1982. Sub­ stantial supporting regulations were

required, both under that Act and under the Australian Federal Police Act 1979.

Bankruptcy Rules: A number of amend­ ments of the Bankruptcy Rules were made as a consequence of amendments of the Bankruptcy Act 1966 made by the Com­

monwealth Functions (Statutes Review) Act 1981. The amendments are designed to achieve, as far as possible, a transfer to the private sector of the work previously done bv the Official Trustee in Bank­

ruptcy.

Commonwealth and State co-operative securities and companies scheme legis­ lation: The drafting of regulations to give effect to the co-operative scheme was

completed during the year under review. The main drafting tasks concerned the drafting of the Companies Regulations

and the Securities Industry Regulations under the direction of a Common­ wealth-State Committee.

Commonwealth Employees (Redeploy­ ment and Retirement) Regulations: Regu­ lations were drafted to provide for the payment of benefits to former Common­ wealth employees retired under the

provisions of the Commonwealth Employees (Redeployment and Retirement) Act 1979.

Defence legislation: Drafting work included work on regulations to revise the disciplinary procedures of the Air Force, to control building in the vicinity of air stations, to reorganise the Army career officer structure and chaplaincy service, and to restrict recruitment to the Defence

Force to persons having, or intending to obtain, Australian citizenship.

43

.

Environment protection legislation: Navigation Act 1912 required consequen-During the year under review the National tial amendment. Parks and Wildlife Regulations were sub­ stantially amended, principally to imple­ ment the provisions of the Kakadu National Park plan of management. Other drafting work included the

National Parks and Wildlife (Antarctic Seals) Regulations, concerned with measures for the preservation of Antarc­ tic seals under an international con­ vention, and the drafting of regulations to control exports and imports with a view to protection of wildlife.

Exports (Fish) Regulations: These Regu­ lations were amended during the year to reflect recent developments in the export trade in fish caught and landed by foreign fishing vessels and to make better pro­ vision in relation to export documen­ tation.

Industrial and intellectual property legis­ lation: Drafting tasks in this area included the drafting of regulations to replace the

existing Designs Regulations, regulations to give effect to the photocopying pro­ visions of the Copyright Act 1968, and the regulations to give effect to the provisions of the Patent Co-operation Treaty.

Ordinances and Regulations for the Australian Capital Territory The A.C.T. Legislation Branch has con­ tinued to meet the demands made upon it for the drafting of Ordinances and regulations for the Territory. The statement made in the Annual Report for 1980-81 that, in practical terms, there is no backlog of drafting work for the A.C.T. remains true.

Having completed the 1980-81 year with twenty-two matters on hand, the Branch ended the year under review with twenty-one matters on hand. This result was achieved despite an increase of 68% in the number of matters received.

The order of priority of drafting matters continues to be determined by the Inter­ departmental Co-ordinating Committee on Australian Capital Territory Law Reform. The arrangements for the fixing of priorities appear to be working satisfactorily, but further steps are being taken in an endeavour to improve even further the identification of priorities within the participating depart­ ments.

Of the legislation that has received atten­ tion during the year, the following are the more important items:

Postal Services: Regulations were drafted for the amendment of the Postal Services Regulations to cover the opening and examining of postal articles by or under the supervision of postal officers.

Quarantine legislation: Draft regulations were prepared to permit the establishment of a quarantine station in the Cocos (Keeling) Islands and to provide for the

necessary support procedures.

Shipping registration: The Shipping Registration Act 1981 came into operation on 26 January 1982 and a substantial amount of work was undertaken in pre­ paring legislation concerning the new registration arrangements provided for by the Act. In addition to the preparation of the Shipping Registration Regulations, a number of sets of regulations under the

Court of Petty Sessions (Civil Jurisdic­ tion) Ordinance 1982: A major new Ordi­ nance in relation to civil procedure of the Court of Petty Sessions. The Ordinance

replaces the existing civil procedure of the court with a new code based on the latest procedural innovations in the Australian States.

Dividing Fences Ordinance 1981: Provid­ ing a means whereby disputes regarding fencing of adjoining parcels may be resolved, and establishing the respective rights and liabilities of neighbours in relation to dividing fences.

Family Provision (Amendment) Ordinance 1981: An Ordinance to extend the jurisdiction of the Supreme Court of the Australian Capital Territory to adjust

I

provisions made by will for the main­ tenance, education or advancement in life of beneficiaries.

• Hire Purchase (Amendment) Ordinance 1981: Implements recommendations of the Consumer Affairs Council to afford greater protection to consumers entering

into hire purchase agreements.

• Long Service Leave (Building and Construction Industry) Ordinance 1981: An Ordinance to introduce a long service leave scheme conferring portable benefits

upon employees and contractors in the building and construction industry.

• Mental Health Ordinance: A good deal of work has been done in preparation of a draft Ordinance which has been referred to the House of Assembly.

• Public Assemblies Ordinance 1982: An Ordinance to provide procedures for the approval of public assemblies and the protection of such assemblies and their

participants.

During the year ninety-three Ordinances and forty-seven sets of regulations were made.

Legislation for the external territories The Division continued drafting the laws of the Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Ashmore and

Cartier Islands, Antarctic and Heard and McDonald Islands Territories. It also drafts some Bills and regulations for Norfolk Island. In the case of Norfolk Island, the most significant legislative proposals calling for drafting work during the year were the pro­

posals for a new land law based on the

Torrens system of land registration. Legis­ lation was also prepared in relation to registration and possession of firearms. In relation to Christmas Island, drafts

prepared included an Age of Majority Ordinance to establish 18 years as the age of majority in the Territory, an Apprenticeship Ordinance to establish an apprenticeship

system in the Territory, a Small Claims Ordinance to enable minor civil litigation to be dealt with expeditiously, a Flammable Liquids Ordinance to control the handling and storing of flammable liquids in the Territory, and a Medical Practitioners Ordinance to provide for registration of

medical practitioners. Further work was done also on the Protection of Waters Ordinance and the Public Holidays Ordinance, and amendments were drafted to provide for

appeals under the Industrial Relations Ordinance. Work for the Cocos (Keeling) Islands included the drafting of an Age of Majority

Ordinance, a Goods Ordinance, a Small Claims Ordinance and a Medical Practition­ ers Ordinance.

Other work of the Division During the 1981-82 year the Division was involved in the preparation of 252 instru­ ments for submission to the Federal Execu­

tive Council. The involvement of the Division in the work of the Parliamentary Counsel's Committee continued during the year. The Committee, which is a subcommittee of the

Standing Committee of Attorneys-General, has the function of preparing legislation for consideration by the Standing Committee. The Division also continues to provide

legal editorial advice and assistance in connection with the publication of Common­ wealth and Territory Laws.

45

8: Australian Legal Aid Office Division

Functions of the Division

The Australian Legal Aid Office Division has responsibility for legal policy and adminis­ tration in respect of: • the Australian Legal Aid Office; • special categories of Commonwealth legal

and financial assistance; • the Commonwealth Legal Aid Council Secretariat and Research Section; and • certain other aspects of the Department's

legal aid function, particularly in relation to international law.

Services Commission of New South Wales is operating but it has not taken over the ALAO functions. Discussions have commenced between the Commonwealth and New South Wales about the possible absorption of the ALAO in New South Wales by the Legal Services Commission.

Special categories of Commonwealth legal and financial assistance The Commonwealth continues to provide, through the Division, legal or financial assistance in relation to certain statutory and administrative schemes. The schemes are:

Australian Legal Aid Office The Australian Legal Aid Office (ALAO) was established in 1974 to provide legal advice and assistance in matters of Commonwealth law to everyone in need and, in other legal matters, to persons for whom the Common­ wealth has a special responsibility, such as: • pensioners; • Aboriginals; • servicemen, ex-servicemen and their

dependants; • newcomers to Australia; and • students. Assistance in respect of legal representation is provided subject to a means and needs test.

The ALAO continues to perform this function in respect of persons eligible for its services in New South Wales, Tasmania and the Northern Territory. In other States and the Australian Capital Territory, indepen­ dent legal aid commissions have been estab­

lished and have absorbed ALAO functions. The most recently established State comm­ ission, the Legal Aid Commission of Vic­ toria, commenced operations on 1 September

1981. At 30 June 1982 legal aid commissions had not been established in Tasmania or the Northern Territory. In New South Wales a legal aid commission known as the Legal

Statutory

• Aboriginal Land Rights (Northern Territory) Act 1976, section 54C and section 74A; • Administrative Appeals Tribunal Act 1975,

section 69; • Australian Security Intelligence Organiza­ tion Act 1979, section 72; • Racial Discrimination Act 1975, section 45; • Repatriation Act 1920, section 107VZZL;

• Trade Practices Act 1974, section 170;

• Judiciary Act 1903, section 69; and • Courts-Martial Appeals Regulations, regulation 11, made under the Courts- Martial Appeals Act 1955.

Administrative • overseas proceedings following upon removal of children from Australia; • proceedings in certain cases concerned

with protection of the environment; and • "public interest" and ‘test' cases. Guidelines for the provision of legal or financial assistance by the Commonwealth under most of these schemes have been

46

published and are available in pamphlet form from the Department. The Division also deals with applications for act of grace payments in respect of legal

proceedings both within Australia and overseas. Persons who consider they may be eligible for legal or financial assistance under any of these schemes may obtain information about eligibility, and the procedure for application,

by writing to the Department or contacting an office of the ALAO.

Commonwealth Legal Aid Council Secretariat and Research Section On 1 July 1981 the Commonwealth Legal Aid Commission Amendment Act 1981 came into force. The Act abolished the Commonwealth

Legal Aid Commission and replaced it with a Council. The Council assumed many of the functions of the Commonwealth Legal Aid Commission, including advising and making

recommendations to the Attorney-General and undertaking research into aspects of legal aid. The Council is required under the legislation to provide an annual report.

The Council does not have its own staff and a Commonwealth Legal Aid Council Secre­ tariat and Research Section was created within the Division. The principal functions of the section are to: • provide a secretariat to the Council;

» undertake research for the Department and for the Council in connection with matters relating to the provision of legal aid in Australia; • collect, analyse and publish statistics with

respect to legal aid; and • provide a collection and dissemination service in respect of legal aid materials and information.

Other functions The Division is responsible for legal policy concerning the provision by the Common­ wealth of legal aid in Australia and provides

advice concerning negotiations for accession by Australia to international arrangements relating to legal aid.

Activities during 1981-82

Australian Legal Aid Office In the States in which the ALAO continues to operate, its workload increased in the second

half of the year under review. The revision of the means and needs test (see below) resulted in a greater number of applicants being eligible for aid. In New South Wales, there was an additional increase as a result of action taken by the Legal Services Commission of that State to direct to the ALAO a large number of civil matters previously handled by the Commission. These are matters in which the applicant is a person for whom the Commonwealth has a special responsibility.

Revision of means and needs test guidelines A revision of the guidelines for the ALAO means and needs test was approved by the Government and came into operation on 19

August 1981. The effect has been to align the test to the single age pension, to add to the range of authorised deductions from gross income and to liberalise the asset guidelines. The guidelines have increased eligibility for

assistance primarily by increasing the permissable disposable income, by increasing the allowance for dependants under the asset guidelines and by making special provision for motor vehicles owned or being purchased

by applicants. The basic test for eligibility for assistance from the ALAO remains the inability of the applicant to afford the cost of representation

in a particular case. The new guidelines are set out in Appendix 5 and are available upon request.

Assistance for enforcement of custody orders In June 1982, the Attorney-General

announced that he had authorised the provision of financial assistance to meet

47

fares, accommodation and associated expenses to applicants who satisfy the means and needs test, and who have obtained an order for custody of a child and a warrant to facilitate the enforcement of that order, to enable such applicants to travel within Australia, in the company of officers of the Australian Federal Police, to enforce the order. The cost of fares for both the child and the applicant may be covered by the assis­ tance.

Special categories of legal and financial assistance During the year there was again a general increase in the volume of the Division's work and a related increase in the commitment and expenditure of funds compared with the

previous year. There was a further marked increase in the number of applications for assistance under section 69 of the Adminis­ trative Appeals Tribunal Act 1975. This occurred principally because, in November

1980, the jurisdiction of the Administrative Appeals Tribunal was extended in relation to applications for review of decisions by the Director-General of Social Security, to enable applications to be made in respect of eligi­ bility for pensions and other benefits avail­ able under the Social Services Act 1947. The jurisdiction enables review by the Tribunal of

decisions concerning assessments of the medical condition of individuals. Many applications for assistance received during the year related to eligibility for invalid pensions.

Financial assistance was provided by the Commonwealth under the various "special category' schemes for representation in a number of cases of legal significance which came before the High Court of Australia and the Federal Court of Australia during the year.

It is the current practice of the Attorney- General to encourage applicants for financial assistance under some of the schemes, par­ ticularly under the Administrative Appeals Tribunal Act, to apply initially to the ALAO, or to the legal aid commissions. Unsuccessful applicants to those bodies are entitled to apply to the Attorney-General for assistance under the relevant scheme.

Commonwealth Legal Aid Council Secretariat and Research Section During the year the Section was actively involved in nine major research projects, four ‘in-house’ and five carried out in collabora­ tion with external consultants. The Section published and distributed six reports on completed projects and seminars relating to:

• evaluating legal aid services; • alternative methods of funding; and • use of social agencies and the provision of legal services. Additionally, it produced two ongoing pub­ lications, the annual supplement to the annotated bibliography Legal Aid in Australia and the two-monthly Legal Aid Clearinghouse Bulletin.

The Section organised two seminars con­ cerned with legal aid research, attended conferences and provided assistance to Commonwealth departments, legal aid commissions, community law centres, and other relevant bodies.

Convention on International Access to Justice During the year the Division continued to brief the Attorney-General in relation to Australia's possible accession to the Con­ vention on International Access to Justice, which is being considered by the Common­ wealth in consultation with the States and the

Northern Territory through the Standing Committee of Attorneys-General. The Convention provides principally for reciprocal arrangements between countries concerning the provision of legal aid. The

Division also prepared a discussion paper on the Convention for consideration by the Standing Committee.

Statistical material This is set out in seven tables at the end of this chapter. • Table 1 indicates the volume and value of

work handled by the ALAO during the year. • Table 2 provides details of expenditure by each ALAO branch office for work done

by private legal practitioners in relation to matters referred to them by the Office.

48

• Table 3 indicates the staff numbers in the ALAO Central Office and branch offices. • Table 4 sets out details of financial

assistance provided by the Common­ wealth under the ‘special category' schemes. • Table 5 provides details of the number of

referrals by the ALAO to private legal practitioners during the year and

estimates for the year 1982-83. • Table 6 gives details of duty lawyer

services provided by the ALAO. The Office provides a duty lawyer service in various courts in New South Wales and

the Northern Territory. In Tasmania ALAO lawyers are on call to the various courts situated near branch or regional offices. "Mobile lawyer" services, involving both advice and representation, are provided by the ALAO in various centres distant from ALAO branch and regional offices in New South Wales, Tasmania and the Northern Territory. • Table 7 gives a breakdown of work

handled by the ALAO showing the res­ pective numbers of "family law" and "general law' matters.

Table 1: Volume and value of business transacted by the Australian Legal Aid Office during 1981-82

Approved applicants for legal aid(a>

Number of interviews

Referred to private practitioners Number handled within ALAO Number Amount committed $

N e w S o u t h W a le s 63 982 14 955 6 415 695 4 107

V i c t o r i a 1 900 2 841 1 536 981 81

T a s m a n i a 9 723 4 197 1 4 2 6 980 1 695

N o r t h e r n T e r r i t o r y 3 198 637 308 945 678

T o t a l 78 803 22 630 9 688 601 6 561

(a) These applications emanate either from interviews at which legal aid going beyond legal advice is found to be required or from private practitioners on behalf of their clients. (b) ALAO to 31.8.81; Commission 1.9.81-30.6.81.

Table 2: Expenditure by the Australian Legal Aid Office during 1981-82 on matters referred to private practitioners

Payments to private practitioners

Number of accounts paid Amount $

N e w S o u th W a le s 13 071 5 099 752

V i c t o r i a 1'’' 4 933 2 424 395

T a s m a n i a 4 565 1 409 997

N o r t h e r n T e r r i t o r y 622 274 283

T o t a l 23 191 9 208 427

(a) More than one account may be rendered in respect of one matter. (b) ALAO to 3 1.8.81: Commission l .9.81-30.6.82.

49

Table 3: Staffing of Australian Legal Aid Office

A sa tl July 1981 As at 30 June 1982

Legal Administrative Legal Administrative

N .S .W . 50 65 50 63

V ic ."" 24 34 — —

T a s . 8 12 10 12

N .T . 8 10 6 11

C e n t r a l O ffic e 7 8 9 11

T o t a l 97 129 75 97

(a) ALAOto31.8.81;Commission 1.9.81-30.6.82.

Table 4: Financial assistance in special circumstances 1981-82

Category Received Approved Refused Commitment Expenditure

(a) lb) la $ id) $

A b o r i g i n a l L a n d R ig h ts ( N .T .) A c t 4 2 — 18 551 18 553

A d m i n is tr a t iv e A p p e a ls T r ib u n a l 278 54 13 54 953 35 05 0

T r a d e P r a c tic e s A c t 18 6 7 4 4 650 48 773

E x g r a t i a ( A u s t.) 5 1 1 3 435 3 793

E x g r a t i a ( o v e rs e a s ) 1 — — — —

O v e r s e a s c u s t o d y 15 6 1 17 786 16 292

C o u r t s - M a r t i a l a p p e a l 3 2 — 44 793 38 793

E n v ir o n m e n ta l 3 — —

E x te r n a l t e r r i t o r i e s — — — 11 715 60

P u b l i c i n te r e s t /t e s t c a s e 9 2 1 — 3 147

J u d i c i a r y A c t 2 1 1 15 000 —

R a c ia l d i s c r im i n a t i o n 3 3 — 7 800 5 041

R e p a t r i a t i o n A c t 1 — — 2 500 823

A . S . l . O . 2 2 1 2 000 —

O t h e r l — — 1 365 1 365

T h a l i d o m i d e — — — 75 75

T o ta l 345 79 25 224 623 171 768

(a) The statistics concerning applicants approved and refused during 1981-82 relate to applications made in that year and in a previous year. (b) ‘Commitment' relates to grants of assistance to the applicant made during the year on the basis of his estimated legal costs and disbursements to be met in the future. (c) ‘Expenditure' for the year 1981-82 relates to applications approved in that period or in a previous year.

50

Table 5: Referrals to private legal practitioners 1981-82

Commitments Average values

1981-82 1981-82 1982-83 1982-83 1981-82 1982-83

(estimate) (estimate) (estimate)

N u m b e r $ N u m b e r $ $ $

N e w S o u t h W a le s 14 955 6 41 5 695 17 370 7 9 0 0 200 429 460

V ic to r ia " " 2 841 1 536 981 — — 541 —

T a s m a n i a 4 197 1 4 2 6 980 4 185 1 527 525 340 365

N o r t h e r n T e r r i t o r y 637 308 945 615 3 1 0 575 485 505

T o t a l 22 63 0 9 688 601 22 170 9 828 300 1 795 1 330

(a) ALAOto31.8.81:Commission 1.9.81-30.6.82.

Table 6: Australian Legal Aid Office duty lawyer services 1981-82

Branch No. of inten’iews Court representation

N . S . W . 1 695 7 362

V ic ." " 298 355

N . T . 248 361

T o t a l 8 201 8 078

(a) ALAOto31.8.81:Commission 1.9.81-30.6.82

Table 7: Applications approved — matters referred or handled by ALAO 1981-82

Referred

Family law General law

.ALAO

Total Family law General law Total

N .S . W . 12 09 7 2 858 14 955 1 597 2 510 4 107

V ic .'" ' 1 312 1 529 2 841 28 53 81

T a s . 1 522 2 675 4 197 595 1 100 1 695

N T . 179 458 637 148 530 678

T o t a l 15 n o 7 520 22 630 2 368 4 193 6 561

(a) ALAO to 31.8.81;Commission 1.9.81-30.6.82.

51

9: Trade Practices and Consumer Affairs Division

Functions of the Division to advise on the development, implemen­ tation and review of consumer product safety and information standards under sections 62 and 63 of the Trade Practices Act;

The provisions of the Trade Practices Act 1974 are intended to encourage and promote com­ petition and efficiency in Australian trade and commerce, to strengthen the position of consumers in relation to suppliers and to

protect them against unfair practices and unsafe goods. The Division comprises three Branches, the Competition Policy Branch, the Trade Practices Operations Branch and the Consumer Policy Branch, and is responsible for advising the Minister on developments in these areas and for formulating, developing and implementing government policies on competition and consumer affairs.

The functions of the Division are:

• to review all matters relating to restrictive business practices affecting competition in the Australian economy, particularly in relation to Part IV of the Trade Practices Act 1974;

to recommend the products which should be banned as unsafe under section 62(2D) of the Trade Practices Act through investigation and information supplied from Australian sources, including State and Territory consumer affairs author­ ities, consumer groups and suppliers as well as international sources such as the OECD and the United States Consumer Product Safety Commission;

to obtain uniformity in product safety and information laws of the Commonwealth, States and Territories through the operation of the Commonwealth State Consumer Products Advisory Committee (CSCPAC);

to co-ordinate the action of the

Commonwealth, State and Territory Governments towards uniformity of packaging and labelling laws;

• to advise on petrol retail marketing

including the Petroleum Retail Marketing Franchise Act 1980 and the Petroleum Retail Marketing Sites Act 1980;

• to provide briefing and representation for international meetings and negotiations relating to competition and restrictive business practices, including the Organ­ isation for Economic Co-operation and Development (OECD) and the United Nations Conference on Trade and Devel- · opment (UNCTAD);

e to research the possible enactment of a general law relating to franchising;

• to investigate requests by primary

product marketing bodies for exemption from the Trade Practices Act;

to advise on consumer policy issues such as the operation of the consumer pro­ tection provisions of the Trade Practices Act on consents to prosecutions under the Act, and on the development of uniform State and Territory consumer legislation;

to co-ordinate the operation of a national consumer complaints statistics system; and

to provide secretariat and research services to the National Consumer Affairs Advisory Council (NCAAC), arranging meetings of Consumer Affairs Ministers

and officers, co-ordinating national- based consumer education enterprises and the Australian participation in the OECD Committee on Consumer Policy.

52

Activities during 1981-82

Competition policy During the year proposals have been deve­ loped for amendment of the petroleum retail marketing legislation, the Trade Practices Consultative Committee has been dissolved

and projects on franchising and exemptions for primary product marketing bodies from the Trade Practices Act 1974 have developed from decisions by the Government on recom­

mendations or reports by the Trade Practices Consultative Committee. In addition, there has been continuing involvement with inter­

national business practices.

Petroleum retail marketing In August 1981 the Government announced that, as a temporary measure, quotas under the Schedule to the Petroleum Retail Market­ ing Sites Act 1980 for the year commencing 19 September 1981 would be increased in order to deal with a problem in the application of the Act to multi-function sites and that that Act and the Petroleum Retail Marketing Franchise Act 1980 would be amended to clarify the application of both Acts to retail petroleum outlets.

In February 1982 the Petroleum Retail Marketing Franchise Amendment Bill 1982 and the Petroleum Retail Marketing Sites Amendment Bill 1982 were introduced in

Parliament. In addition to dealing with the problem of multi-function sites, the

opportunity was taken to make minor technical amendments to clarify the

operation of the legislation. The amendments do not reflect a change of policy.

Trade Practices Consultative Committee (TPCC) Consideration of three TPCC reports was completed and the following action is to be taken on the Committee's recommendations:

» Small business The price discrimination (section 49) and monopolisation (section 46) provisions of

the Trade Practices Act 1974 are to be retained unamended. The Trade Practices Commission inform­ ation program is supported. The Act is to be amended to make it an

offence to threaten, intimidate or cause damage to a person providing documents or furnishing information to the

Commission. The Committee’s proposed franchising legislation is to be studied further. • Primary production

The Government decided not to accept the Committee's recommendations but adopted guidelines to be used in consid­ ering primary product exemptions, the principal features of which are:

exemption must be necessary for pro­ moting stability in the production or marketing of primary products;

an exempted scheme must involve the least reduction in competition

necessary to meet those objectives; and exemptions are to operate for a maxi­ mum of five years. • Requirements contracts

No action is proposed on this report.

The TPCC, established in 1978 to advise the Minister on the practical operation of the Trade Practices Act 1974, has been dissolved. The decision was taken in the context of a

review of the operation of all advisory committees pursuant to the recommenda­ tions of the Committee of Review of

Commonwealth Functions.

Activities subsequent to TPCC reports As a result of government decisions on TPCC reports, further studies on franchising and franchising practices in Australia are being carried out, and current exemptions and

applications for exemptions from the Act by primary product marketing bodies are being considered in terms of the guidelines and any submissions that may be received from applicants and other interested parties.

Application of the Trade Practices Act 1974 to stock exchanges On 5 August 1981 the then Minister for

53

Business and Consumer Affairs announced that the Government had decided that the Trade Practices Commission would retain responsibility for the competition provisions of the Trade Practices Act 1974 in so far as they apply to stock exchanges. This decision reversed the Government’s previous preferred position that the National Companies and Securities Commission should have respon­ sibility for administering those provisions in relation to stock exchanges. The Government also announced the appointment of an Associate Member of the Trade Practices Commission with extensive knowledge of the Australian capital market to assist the Commission in its determination of an authorisation application by the Australian Associated Stock Exchanges (AASE). The

Minister subsequently directed, pursuant to section 29 of the Trade Practices Act, that the Trade Practices Commission give special consideration to certain specified matters in dealing with the AASE application. These matters were: (a) in relation to rules limiting membership

of stock exchanges, that members be competent and financially stable; (b) in relation to the charging of brokerage, that the interests of small investors be

protected; and (c) the desirability of the continued exis­ tence of stock exchanges in cities other than Sydney and Melbourne.

United Nations conference on Trade and Development (UNCTAD) In December 1980 the United Nations General Assembly adopted a Set of Equitable

Principles and Rules for the Control of Restrictive Business Practices which had been negotiated at conferences under the auspices of UNCTAD.

An officer of the Division attended the first session (in November 1981) of the Inter­ governmental Group of Experts on Restric­ tive Business Practices which was established under the Principles and Rules.

Negotiations are proceeding in the United Nations Conference on an International Code of Conduct on the Transfer of Tech­ nology, also under the auspices of UNCTAD.

An Interim Committee of the Conference was set up to consider outstanding issues

54

relating to the Code. An officer of the Division attended in March 1982, the first session of the Interim Committee, which dealt with restrictive business practices in the international transfer of technology.

Organisation for Economic Go-operation and Development (OECD) Officers of the Division have attended meetings of the OECD Committee on Restrictive Business Practices and its assoc­ iated Working Parties. Research projects currently being conducted by the Working

Parties include co-operation between count­ ries on restrictive business practices involving international trade; the application of res­ trictive business practices law to the pro­ fessions; mergers; and the collection of information abroad for the control of res­ trictive business practices.

Officers also attended meetings of the OECD Committee on Consumer Policy.

Unsafe goods The powers under section 62(2D) of the Trade Practices Act 1974 may be used to ban the sale of unsafe products where it appears that they will or may cause injury. Many products referred to the Trade Practices Operations Branch as unsafe are modified, or voluntarily withdrawn from the market, by suppliers as a result of negotiation.

During 1981-82 the following goods were banned as unsafe under that section: • children’s money boxes coated with material containing excessive levels of

lead;

• 'Little Miss Matchpack’ baby dolls which present an ingestion hazard; and • 'Pierino' baby dolls which present an ingestion hazard.

Various imported products considered to be unsafe were referred to the Australian Customs for appropriate action after invest­ igation by the Branch. These included: • certain electrically operated projectors

which constitute a fire and electrical shock hazard; • children's toys coated with toxic

materials; and

• Chinese dinnerware with excess lead in the coating material.

Commonwealth-State Consumer Products Advisory Committee The Commonwealth-State Consumer Products Advisory Committee (CSCPAC), which comprises representatives of Common­

wealth, State and Territory consumer affairs authorities, provides a national forum for consultation on the development and review of safety and information standards and similar related issues. The Standards Assoc­ iation of Australia (SAA) is represented on CSCPAC in a consultative capacity.

The 10th and 11th meetings of the

Committee took place in Canberra in Sep­ tember 1981, and in Melbourne during March 1982. At these meetings, reports on the development and review of over thirty standards were made to members. In

addition, at the 10th meeting, representatives of the Confederation of Australian Industry and the Federal Chamber of Automotive Industries were present to discuss consumer

product issues which were of concern to their organisations.

Progress in the consideration of proposed safety standards Under section 62 of the Trade Practices Act 1974 mandatory consumer product safety

standards may be declared. Previous reports on the Division's activities have referred to the attention that the

Commonwealth-State Consumer Products Advisory Committee has been giving to the development of safety standards for child related products. Two subjects that have been

receiving close attention in the past year are children's toys and babies dummies. • Children’s toys The SAA has had two parts of the recently

revised Australian Standard for the safety requirements of children's toys (AS 1647) under further review. CSCPAC has estab­ lished a working party which will advance

the consideration of a possible mandatory standard when these new requirements are published. In the interim, close attention is continuing to be given to

individual toys and similar childrens

products referred to consumer affairs authorities for alleged safety defects. Action along these lines includes the examination of the need for specific safety requirements for children's novelty money boxes. • Babies dummies

A CSCPAC working party has made an initial survey of manufacturers and suppliers of these products. Detailed discussions are to be undertaken when the analysis of the survey responses is completed. Other subjects that CSCPAC has under consideration for safety standards include children's furniture, sunglasses, motor vehicle jacks and support stands, household ladders and battery booster leads. In most cases the Division participated in SAA technical committee meetings involved in the preparation of relevant Australian

Standards. In addition, industry and

consumer groups have been approached for their views on some of these subjects.

Review of existing consumer product safety standards To maintain their viability, all the existing mandatory safety standards under the Trade Practices Act 1974 have been under review. The relevant SAA technical committees have

been considering the revision of the

Australian Standards concerned with portable fire extinguishers, motor cyclists' helmets, children's nightwear flammability, pedal bicycles and motor vehicle child restraints. As those revisions are completed consideration will be given to the adoption of

the revised standards as consumer product safety standards. CSCPAC has also during 1981-82 been

reviewing the effectiveness of the mandatory requirements to provide warning labels on children's flotation toys. In the case of children's nightwear, major

surveys were conducted on consumer under­ standing of the flammability labelling requirements with the assistance of New

South Wales and Victorian consumer affairs authorities. The results of these surveys are being studied further. On 22 January 1982 the mandatory standard for motor vehicle child restraints

55

was declared in a revised form in the

Commonwealth Gazette to include booster cushions within the group of restraints that must meet the requirements of the relevant Australian Standard (AS 1754-1975), and to exclude from the mandatory safety standard child restraints specifically designed and manufactured for use by handicapped children. Both these steps were taken after consultation with manufacturers.

Product recall codes In line with the view that industry should be encouraged to develop voluntary codes for the recall of unsafe products before mand­ atory alternatives are undertaken, the Division has been assisting industry with the development of recall procedures.

During the year discussions have been held with the Australian Federation of Consumer Organisations and industry associations, including the Confederation of Australian Industry (CAI), on general product recalls. CAI has published a recall code and has been promoting it in all States. Talks on motor vehicle recall with the Federal Chamber of Automotive Industries are proceeding with a draft recall code recently being distributed to

State and Territory Consumer Affairs Ministers. It is planned that Transport Ministers will consider this draft code at the July 1982 meeting of the Australian Trans­ port Advisory Council.

The CSCPAC Register of Alleged Hazardous Products The Register, which was established in July 1980, provides a data bank of products referred to Commonwealth, State and Territory Governments for alleged hazardous defects. During 1981-82, sixty-nine products were included in the Register. The Register now contains information on 225 products and is proving of continual benefit to the participating authorities.

Review of textile labelling requirements During 1981-82 the Division undertook a comprehensive review of current textile

56

labelling requirements in Australia. The review is in response to a direction to

CSCPAC from the Standing Committee of Consumer Affairs Ministers in May 1981. The Division's preliminary report, relating to information labelling requirements and focussing on care labelling, fibre content labelling and size labelling standards, was presented to CSCPAC in March 1982. It is expected that a final report and recommen­ dations will be delivered to the Committee of

Ministers in August 1982.

Voluntary standards and industry codes Industry self-regulation in appropriate cir­ cumstances offers an efficient alternative to government regulation and its attendant costs, provided industry can demonstrate that its programs are comprehensive and involve all industry members. The Division plays an active role in the development and implementation of these voluntary measures. Codes and standards which the Division contributed to during the year include: • 'Code of Practice for Australian Grocery

Retailers using Computerised Checkout Systems' developed by the Food Division of the Australian Retailers' Association to ensure minimum standards of price in­ formation where individual item price marking is abandoned by the application of new technology; • ‘built dates’ being openly displayed on

passenger vehicles produced by members of the Federal Chamber of Automotive Industries, which enables both car dealers and consumers to know accurately the precise date of manufacture of all cars produced from January 1982; • tar and nicotine yields of all cigarettes

being printed on cigarette packets from August 1982, along with a reduction in the permissible levels of both substances in cigarettes; • the publication of updated fuel consump­

tion data for passenger vehicles tested by their manufacturers and importers in accordance with Australian Standard 2077 — this information is published by the Department of National Development and Energy as the Fuel Economy Guide

and the current edition of this publication was issued in October 1981.

Relationship with the SAA Product standards developed through the CSCPAC forum are generally based on voluntary standards published by the

Standards Association of Australia (SAA). SAA standards are prepared by technical committees representing industry, business and consumer organisations, as well as government authorities and academic insti­ tutions.

The Division maintains a close relationship with the SAA in the development and review of consumer standards. To this end, the Division is represented on thirty-two tech­

nical committees of the SAA and attended sixteen committee meetings in 1981-82.

Packaging and labelling laws State and Territory Governments have assist­ ed the Commonwealth's drive for uniformity in packaging and labelling laws through the work of national committees in separate jurisdictions and the establishment of State

Interdepartmental Committees to review intra-state developments. During 1981-82 the Division has main­ tained liaison with several national com­ mittees and also represented the Common­ wealth on the Standing Committee on Pack­ aging (SCP), which is responsible for achieving national uniformity in weights and measures legislation.

In March 1982 the Division commenced a major review of non-uniformity in packaging and labelling. In conjunction with the National Standards Commission (NSC), the

Division conducted public workshops in Sydney and Melbourne at which industry, consumer and government proposals for greater uniformity were presented and examined. Principal proposals from those

workshops will go forward to a conference in July 1982. Concurrently, the Division is conducting a fact-finding program to as­ certain the extent of practical difficulties

being experienced by industry as a result of lack of uniformity in packaging and labelling requirements.

National Consumer Affairs Advisory Council (NCAAC) The membership of NCAAC reflects the need for balanced input from various consumer

interest groups, sectors of industry which most affect consumers, and Australia-wide representation. Membership of Council as at

30 June 1982 was: • Professor David Harland, Professor of Law, University of Sydney, (Chairman); • M r Owen Sperling, Sydney, solicitor;

• Mr Peter Dunstan, Sydney, General Manager, Information and Public Affairs, Unilever Australia Pty Ltd; • Mr Ken Stone, Melbourne, Secretary of

Victorian Trades Hall Council; • Mrs Elaine May, Perth, President of Consumers' Association of Western Australia; • M r Bill Dawson, Adelaide, Managing

Director of Myer S. A. Stores Pty Ltd; • Mr Brendan Pentony, Queanbeyan, Lecturer in Law and Chairman of AFCO; • Mrs Suzanne Russell. Melbourne. Senior

Lecturer in Home Economics; and • Mr Glenn Simpson, Acting Assistant Secretary, Consumer Policy Branch.

The work of the Council in 1981-82 involved consideration of such matters as consumer representation, product recall, voluntary codes of conduct and cost - benefit analysis of consumer protection legislation.

Consumer legislation Progress was made during the year on the development of a number of amendments to the Trade Practices Act 1974.

The Division has continued to monitor the development of State legislation dealing with consumer credit. In December 1981, the New South Wales Consumer Credit Act 1981. and

the Victorian Credit, Goods (Sales and Leases) Act 1981 and Chattel Securities Act 1981 were passed by their respective Parliaments but at 30 June 1982 had not been proclaimed to commence. Through close co-operation be­ tween New South Wales and Victoria, a very high degree of uniformity of approach has been achieved. The Division will be working to promote a similar result in the Common­ wealth, State and Territory laws relating to

57

statutory rights in consumer transactions, including those contained in the Trade Practices Act.

Insolvency As part of its examination of the Australian Law Reform Commission's Report on Insolvency — The Regular Payment of Debts, the Division arranged conferences in Sydney and Melbourne of persons involved in credit counselling and the credit-providing· indus­ try. The conferences provided an opportunity to discuss current problems encountered by consumers in the use of credit, and to improve informal arrangements between credit pro­ viders and credit counsellors for the provision of assistance to consumers in debt.

Consumer education The Division continued to provide a national co-ordinating role in consumer education and to be involved in broadly based activities that supplemented the operations of the other agencies. There was a continuing demand for the child safety booklet David and the Helping Hand, which is made available through child

safety and education units, and the pamphlet Buying Goods and Services. The Division has participated with the Trade Practices Commission and other con­ sumer affairs agencies, through Telecom, for the insertion of two pages of consumer advice in the Yellow Pages of capital city telephone directories.

National Consumer Complaints Statistics System The Division provides the overall manage­ ment of the National Consumer Complaints

Statistics System. This is a computer system provided by the Commonwealth for storing and disseminating information derived from formal complaints made by consumers to State and Territory consumer affairs bureaus and to the Trade Practices Commission.

An analysis of formal complaints for 1981-82 appears in the following tables. There has been a 5.1% fall in the number of complaints received from agencies. The

product areas attracting most complaints are motor vehicles, consumer appliances and building and construction, while the quality of a product or service is the main cause of complaints.

International exchange of information on product safety issues A close working relationship is maintained at the international level, especially with the

United States, Canada and Britain, on the exchange of information on product safety issues. During the past year, as well as attending meetings of the OECD Committee on Consumer Policy, visits were made by officers of this Division to the United States Consumer Product Safety Commission, the Canadian Department of Consumer and Corporate Affairs and the United Kingdom

Department of Trade. An informal notification scheme operates between member countries of the OECD so that each country is aware of any potentially hazardous products which may become available. The Division continued to notify the OECD of goods banned from sale in Australia during the year, and distributes notifications received from the OECD to State and Territory consumer affairs authorities.

58

Consumer complaints

Complaints by major product or service categories, Australia

Product or service

Year Ended 30 June 1981

No. %

30 June 1982

No. %

P u r c h a s e o f u s e d m o t o r v e h ic le s 7 200 9 .9 6 635 9 .6

M o t o r v e h ic le s r e p a i r s a n d s e rv ic in g 4 396 6.1 3 236 4 .7

P u r c h a s e o f n e w m o t o r v e h ic le s 2 302 3.2 2 191 3 .2

O t h e r m o t o r v e h ic le p r o d u c ts 3 80 2 5 .2 3 336 4 .9

E le c t r i c a l g o o d s — p u r c h a s e a n d r e p a ir 8 154 11.2 7 43 2 10.8

H o m e c o n s t r u c t i o n , e x te n s io n , r e n o v a t io n 6 940 9 .6 6 0 6 1 8.7

O t h e r h o m e im p r o v e m e n ts 4 025 5.5 4 0 7 5 6 .0

E n t e r t a i n m e n t , tr a v e l, r e c r e a tio n 4 220 5.8 3 742 5 .4

R e a l e s t a t e , a c c o m m o d a ti o n 4 005 5.5 5 4 8 0 8 .0

F u r n i t u r e , f u r n is h in g s 4 692 6.5 4 4 7 3 6 .6

I n s u r a n c e 3 256 4.5 3 369 4 .8

F i n a n c e a n d o t h e r c r e d it se rv ic e s 1 760 2.4 1457 2 .2

C l o t h i n g , f o o t w e a r , d r a p e r y 3 776 5.2 3 582 5.2

P r o f e s s io n a l se rv ic e s 1 6 5 8 2.3 1442 1.9

S e m i- p r o f e s s io n a l a n d o t h e r se rv ic e s 6 4 5 7 8.9 5 837 8 .6

F o o d , b e v e r a g e s , t o b a c c o 1 2 7 0 1.8 1007 1.5

M i s c e ll a n e o u s p r o d u c ts 4 626 6 .4 5 452 7.9

T o t a l 72 539 68 807

Reasons for complaint, Australia

Year ended 30 June 1981 30 June 1982

Reason No. % No. %

U n s a t i s f a c t o r y q u a li t y o f p r o d u c t o r se rv ice 37 696 46.1 33 685 43.1

U n f a i r o r u n f u lf ille d c o n tr a c ts 16 386 20.1 18 657 2 3 .8

G u a r a n t e e s a n d w a r r a n tie s n o t h o n o u r e d 5 425 6.6 5 104 6.5

M i s l e a d i n g a d v e r tis in g ( λ m n ) 2 801 3.6

M i s l e a d i n g r e p r e s e n t a t i o n s

■ j 4 929 O . U j 1 512 1.9

E x c e s s iv e p ric e s /c h a r g e s 5 856 7.2 4 726 6 .0

U n f a i r c r e d i t p r a c tic e s 4 304 5.3 4 0 0 1 5.1

U n f a i r s a le s m e t h o d s 3 597 4 .4 4 4 6 1 5.7

O f f e r s o f R e d re s s 2 990 3.7 2 754 3.5

U n s a t i s f a c t o r y p a c k a g in g , la b e llin g 521 0 .6 545 0 .7

T o t a l '" ' 81 704 78 246

(a) Each complaint may he given two reason categories and totals exceed product!service totals.

59

10: Management and Special Services Division

Functions of the Division

The primary function of the Management and Special Services Division is to provide the Department and statutory authorities within the Attorney-General’s portfolio with man­ agement and related services and associated policy advice. In addition, the Division has responsibility for certain ‘special services’, such as censorship.

The Division also assists the Secretary in his management of a number of branches outside the main structure of the Department where the head of the branch is responsible to the Secretary directly or through a branch head in the Division. Branches responsible directly to the Secretary include most of the Court and tribunal registries and the

Commonwealth Reporting Service. For those branches the Division makes available routine essential services, specialised assist­ ance and policy resources as required. Branches that report to a branch head in the Division are the Australian Capital Territory Lower Courts Branch and the Curator of Estates of Deceased Persons.

In the discharge of its functions, the Division: • furnishes advice and assistance on

personnel, financial, administrative and general management policies and prac­ tices; • provides administrative support services

to the Department, federal and territory Courts and tribunals and to statutory authorities for which the Attorney- General has responsibility; • issues information to the press and the

public concerning policy initiatives of the Attorney-General and the Department, prepares announcements of appoint­ ments made by the Attorney-General and answers inquiries from the public;

• provides library services; • developes and maintains automatic data processing systems and provides office machines;

• arranges for the provision of court and office accommodation; » prepares financial estimates, co-ordinates budgetary control and provides related

information to appropriate Parliamen­ tary Committees; • provides policy advice on and negotiates in respect of fees to be charged for services

provided by the Department; > administers certain provisions of the Family Law Act 1975 and the Marriage Act 1961; • administers Commonwealth censorship

legislation; i administers the office of the Curator of Estates of Deceased Persons in the Australian Capital Territory;

recommends the appointment of Justices of the Peace in the Australian Capital Territory and Commissioners for Declar­ ations throughout the Commonwealth; • services the Parole Board of the

Australian Capital Territory and makes recommendations concerning applic­ ations for the remission of fines; and • provides administrative support to the

Lower Courts of the Australian Capital Territory. The Division has staff in each State and Territory.

Activities during 1981-82

Automatic data processing in the Department The major operational computer applications in the Department in 1981-82 were the

60

SCALE legal information retrieval system and the computer-assisted transcription system for court reporting. A number of minor systems serving particular functional

areas of the Department also continued in operation.

Legal information retrieval The Department’s legal information retrieval system SCALE continued to be expanded during the year. The 1981 Commonwealth

Acts were added and 1982 Acts are currently being added to the data base. New legislative data bases were introduced during the year

including consolidated Commonwealth Acts, Commonwealth Statutory Rules and Regul­ ations of the Australian Capital Territory. These are all expected to have further

material added during the 1982-83 financial year. A specialised data base containing the

reprints of the Income Tax Assessment Act 1936 as at 31 December 1979, 1980 and 1981 was developed during the year, as was a data base containing decisions of the Adminis­ trative Appeals Tribunal. Expansion of the data base containing reasons for judgment of the High Court continued. The High Court data base currently contains 2967 cases covering the years 1933 to 1980. This data

base will continue to be developed this financial year. During the year over 120 legal officers and librarians were trained in the use of SCALE, giving a total of more than 330 officers who

have now passed through the SCALE training program. Access to SCALE was extended to the Deputy Crown Solicitor's Offices in Sydney, Melbourne and Adelaide,

as well as the Law Courts Library, Sydney. A review of the Department’s Litigation Support System was carried out during the year. The system is designed to provide

assistance in the conducting of a major court case and the review found that the computer system has proven to be particularly bene­ ficial, providing considerable savings in time

and counsel fees. During the year the Department continued its participation in discussions with the States and representatives of the legal profession about the future development of computer­

ised legal information retrieval in Australia.

Legislation consolidation The computer system to produce consolid­ ated legislation by semi-automatic incorpor­ ation of amending legislation continued to be developed during the year. The system design

and broad program design stages are now complete and approximately half of the programing work for the system was com­ pleted during the year.

It is proposed to implement phase 1 of the system during the 1982-83 financial year.

Computer-assisted transcription (CAT) A number of modifications to improve the operational procedures of the pilot CAT system were introduced into the Melbourne office of the Commonwealth Reporting

Service during the year. These changes resulted in a dramatic improvement in reporter efficiency, and made the system significantly more cost effective that the existing manual methods.

Steps are currently under way to extend the CAT system to Sydney and Canberra and to expand the existing Melbourne installation. These extensions will be completed during the

1982-83 financial year.

Computer resources In October 1981 tenders were called for the acquisition of a central computer for the Department. Installation of equipment by the successful tenderer is expected in 1982. The computer will support the Department's existing systems and the proposed Registry and Legislation Consolidation systems.

Crown Solicitor’s Division During 1981-82 the ADP Branch assisted in the evaluation of tenders for word and data processing facilities for all offices of the

Division. Installation is expected to be carried out progressively from late in 1982.

Family Court Registry study The ADP Branch has, during 1981-82, participated in a study of the Family Court Registry. A report on the study findings is

expected in 1982.

61

Recruitment The Committee continued to oversight the

The Public Service Board has delegated to work placement program for newly recruited departments the responsibility for the direct Degal Officers, the Legal Professional recruitment of base level staff. This has meant Development Program, the preparation of a major change in the work emphasis and * ork for participants in the Law

considerably more freedom in selecting base Council of Australia Attorney-General s ■ level staff including Legal Officers. Involve- Department Exchange Scheme and the Public ment with campus interviews continues to be Service Board s Interchange program, and |

high. Strict controls continue on the filling of P acern,ent ? departmental officers either positions and the consideration of surplus returning to duty after extended leave or staff for vacant positions is becoming more recluestmg rotation to another area of work, frequent. j

M anpower Advisory Committee This Committee, which is chaired by a Deputy Secretary, was established in December 1979 to advise the Secretary about legal staff planning matters. The Committee’s responsibilities include: • statistical information concerning staff,

e.g. age composition, work experience and career preferences; • future staffing needs and forecasting likely staff losses and expansion of

functions and workloads; • ensuring that the Department has suitably qualified and experienced staff to meet identified needs; this objective is to be

reached through both careful recruitment and the development of existing staff. The Committee was recently enlarged and restructured to reflect the greater variety of matters coming before it.

The major matters dealt with by the Committee during 1981-82 were: • the holding of a second Executive

Management Conference for the top managers in the Department; • consideration of proposed standardis­ ation of qualifications prescriptions for

the legal officer group and related desig­ nations; • oversighting the preparation of state­ ments of objectives for each Division, and

the Department as a whole; • preparation of issues papers for Senior Officers Meetings on the topics of departmental objectives and staff devel­

opment/appraisal; and • investigation into the appropriateness of various professional training courses.

M anagement training and development The second Executive Management Confer­ ence was held at Bowral in October 1981. The themes chosen for the Conference were the effective and intelligent application of tech­

nology and the further development of a systematised approach to the work of the Department. These themes were seen as a natural development from the first Executive Management Conference held in 1980. They were intended to deepen each participant's understanding of his role as an executive manager in the Department, and to enhance the ‘corporate’ management of the

Department. During the course of 1981-82 the Training Unit contributed substantially to the increas­ ed impetus in management training. The Senior Management Seminar program com­ menced in 1980 was completed as well as a seminar for senior staff on communication. Courses on supervision, selection inter­ viewing, induction, office skills, interviewee skills and counselling and communication were conducted for a wide range of staff.

The Training Unit continued to be involved in the Legal Professional Development Program. It provided administrative support for the conduct of three legal symposia, ‘Developments in Commonwealth Criminal

Law Policy’, The Reach of the Common­ wealth’s Incidental Legislative Powers: Gazzo’s Case' and ‘Property and Agreements'. The review of the Studies Assistance Scheme led to a decrease in the numbers of staff attending part-time tertiary study. On the other hand there was a marked increase in the numbers of staff attending various external courses, workshops and seminars

62

conducted by other organisations including the Public Service Board, and professional organisations. Officers of the Department were selected to

participate in a variety of developmental courses or schemes during 1981-82. These included the Advanced Management Program of the Australian Administrative

Staff College, the Personnel Management Scheme and the Exchange Scheme conducted by the Department and the Law Council of Australia. In addition one officer was awarded a post-graduate scholarship to study at the University of Virginia.

Industrial Relations The Attorney-General was a respondent to an appeal by staff associations against a decision by the Public Service Arbitrator concerning hours of duty at the Australian Institute of Criminology. A Full Bench of the Australian Conciliation and Arbitration Commission disallowed the appeal. Officers of the

Management and Special Services Division provided substantial input into the briefing of counsel representing the Attorney-General. The Attorney-General was also respondent to proceedings before the Public Service Arbitrator which related to salary claims by the Australian Government Lawyers Assoc­ iation, and which required specialised input by officers of the Division to briefing of the

Public Service Board. The Division has also been the central contact point for advice to the Attorney- General, officers of the Department and statutory authorities within the Minister’s portfolio on procedures for handling indus­ trial disputes and on Government policy in such events. Discussions were also held with staff associations on particular members'

problems and they are continuing to be consulted on the planning for the Robert Garran Offices.

Planning Officers of the Division were involved in the planning for: • the establishment of the Office of the

Public Trustee; • the implementation of the freedom of information legislation;

• the review of the Federal Courts, Family Law, Territories and Law Reform Division; • the review of the Institute of Criminology;

• the proposed Inquiry into Matrimonial Property Regime; • the establishment of the Australian

Federal Police Disciplinary Tribunal; and • the transfer of selected functions from the abolished Department of Business and Consumer Affairs.

M anagement improvement activities Officers of the Division were engaged in reviews of systems and procedures designed to improve management and performance within the Department and associated bodies.

M ajor projects were: • implementation of the Staff Utilisation Review in the Family Court of Australia, including a review of systems and pro­

cedures; • continuation of systems and procedures reviews and reviews of word processing facilities in the Department, Court

Registries, and statutory authorities responsible to the Attorney-General; • continued implementation of the recom­ mendations of the Joint Management

Review in the Crown Solicitor's Division; • examination of record holdings, particu­ larly those held in the Establishments and

Planning Branch, with a view to reducing the volume of records held by the use of microfiche.

Court Buildings Planning for new Commonwealth Courts buildings in Brisbane and Perth is continuing on the basis that these proposals will now be submitted for Cabinet consideration during

1983. A submission outlining the overall law courts construction strategy is expected to be considered by Cabinet during 1982 so that forward planning for major projects may

proceed with some degree of certainty. The Townsville Family Court project is expected to be completed by mid July 1982 and should be operational shortly thereafter.

Additional facilities have been provided for the Family Court in Adelaide and Brisbane. A contract was let in December 1981 for the construction of a new courts building in

63

Hobart. Most of the foundation and base­ ment construction is now complete. The building is scheduled for completion in 1984. Refurbishing of 451 Little Bourke Street, Melbourne, to provide improved accommo­ dation for the Federal Court was completed in June 1982. The Court is in the process of occupying the building.

A program to refurbish 450 Little Bourke Street, Melbourne (the old High Court Building), to provide the balance of Federal Court and Tribunals accommodation requir­ ed in Melbourne is well under way. It is expected that a contract for the building work will be let towards the end of this year.

Office accommodation The construction of the Robert Garran Offices on National Circuit, Barton, is proceeding on schedule despite some early industrial relations difficulties. Originally designed to accommodate the Department’s Central Office and the Office of Parliament­ ary Counsel, recent changes in administrative arrangements may require some staff to be outposted when the building is occupied about mid 1983.

The Australian Government Lawyers Association submitted a plaint to the Deputy Public Service Arbitrator regarding the poor standard of the Deputy Crown Solicitor’s Office accommodation in Brisbane. Follow­ ing several hearings and protracted negotia­ tions between this Department, AGLA, the Department of Administrative Services and the Department of Housing and Construc­ tion, a decision was reached to refurbish the existing Deputy Crown Solicitor’s Office accommodation at 294 Adelaide Street. Offices will be provided for all legal officers together with an adequate level of sound attenuation. A contract has been let and the work is expected to be completed during November 1982.

Two floors of the AMP Building in Canberra were fitted out to provide accom­ modation for the Human Rights Commis­ sion. The work was carried out in two stages to minimise disturbance to the Commission.

Purchasing The Departmental Tender Board was res­

ponsible during the year for approval of purchases totalling $218 478. Purchases approved included sound recording systems, word processors, remote dictation units and library books.

Interpreters An officer of this Division, together with an officer of the Justice Division, represented the Department at meetings of the Galbally 14 Committee and assisted in the implementa­ tion of recommendations of the Galbally Report on the post-arrival treatment of migrants.

In co-operation with the Department of Aboriginal Affairs, arrangements were made to provide a speaker, Mr A. Hogan, on the problems of interpreting in the courts for the third biennial convention of the Australian Stipendiary Magistrates Association. The convention was held in Canberra in June

1982.

Financial contributions provided through the Department Financial contributions provided through the Department during 1981-82 included: • a payment of $28 000 to the Australian

Crime Prevention Council; • a contribution of $56 819 to the Berne Union for the Protection of Copyright; • a contribution of $25 648 to the Hague

Conference on Private International Law; and • a contribution of $13 432 to the Inter­ national Institute for the Unification of

Private Law (UNIDROIT).

Internal Audit Despite a large staff turnover in the Internal Audit Section in Central Office, the 1981-82 audit program was substantially achieved

both in Canberra and in the States. The program of systems-based audits introduced in 1980-81 also progressed satisfactorily during the year. Misappropriations of funds

in the Family Court, Adelaide, and the Deputy Crown Solicitor's Office, Hobart, were investigated. There will be a significant increase in the

workload of the Internal Audit Section as a

64

result of the extra functions added to the Attorney-General’s portfolio by the Admin­ istrative Arrangements order of 7 May 1982. Officers of the Department were saddened

by the untimely death in December 1981 of the head of the Internal Audit Section, Mr Hugh Wilson, while on duty in Adelaide.

Receipts and expenditure A full account of the Department’s receipts and expenditure is contained in the Statement of Receipts and Expenditure prepared by the Minister for Finance. In 1981-82 the total departmental revenue was $9 224 699. In that period, expenditure of moneys appropriated under the heading 'Attorney-General’s Department’ totalled $145 008 685.

Legal aid functions — administrative aspects Officers of this Division have continued to be involved in the planning, negotiation and implementation of the transfer of functions of the Australian Legal Aid Office to State and Territory Commissions.

Officers continue to liaise with established Commissions on estimates, expenditure and statistics. The Commonwealth contribution for legal aid in all States and Territories during 1981— 82 was $17 091 200.

The Department is involved in the pro­ vision of grants to voluntary legal aid bodies. Grants totalling $400 000 were made in 1981­ 82 to organisations in New South Wales,

Victoria, Queensland and South Australia.

State Offices In all States and the Northern Territory there are Management Services Branches provid­ ing management and related services to departmental elements and statutory authori­ ties within the Attorney-General’s portfolio,

including members of the judiciary. A significant change during the year has been the transfer of some functions and staff from the Management Services Branches to

the offices of the Deputy Crown Solicitors. This was one of the recommendations of a Joint Management Review of the Crown

Solicitor's Division and is designed to improve the administrative capacity of the Deputy Crown Solicitors' offices. Each year the Branch heads meet to discuss

their operations with central office manage­ ment and to keep abreast of developments affecting them. Among topics at this year’s meeting were the implementation of the

freedom of information legislation and the transfer to the Department of some functions from the former Department of Business and Consumer Affairs. This transfer will mean a

substantial increase in the workload of the Management Services Branches.

Information and Public Relations The Information and Public Relations unit continued to provide information about the activities of the Department and of the Attorney-General, and to answer inquiries from the public and the press.

Two volumes of Press Releases by the Attorney-General" and a consolidated and cross-indexed record of the public statements and speeches by the Attorney-General were

published and distributed to law libraries, law societies and universities. As part of the year’s projects, the unit

provided a journalist to work with a special team monitoring activities associated with the Commonwealth Heads of Government Meet­ ing in Melbourne.

The unit supplied journalistic assistance to the Human Rights Commission as well as press liaison at the Fifth South Pacific Judicial Conference at the High Court of

Australia. It also produced a set of pamphlets con­ taining speeches by the Attorney-General on important subjects dealing with the interpre­ tation of Commonwealth laws, as well as

Australia’s position on the extraterritorial operation of United States antitrust laws.

Libraries The Department has libraries in each State, the Australian Capital Territory and the Northern Territory to provide legal resource

material for use by members of the judiciary and departmental officers and to provide a reference and research service. Details of new

65

acquisitions and an abstracting service of legal journals are provided to departmental officers in a fortnightly publication called AGIS (Attorney-General’s Information Service).

The Central Office Library now has on-line access to various overseas and local data bases which contain a considerable amount of legal and related information. It is also a member of the nationally controlled on-line cataloguing system, the Australian Biblio­ graphic Network (ABN). It is envisaged that as ABN develops it will provide the vehicle for the creation of a union catalogue of all the material held by Central Office and the

Branch Libraries. Most of the departmental and court lib­ raries give limited access to the public and legal profession.

Security Reviews of personal and physical security requirements in Commonwealth Courts and buildings occupied by the Department have been maintained during the year.

Emphasis once again has been on the Family Court of Australia. Officers of the Management and Special Services Division have been constantly involved in this area, and are proceeding with the collection of data involving court-related incidents and the implementation of protective security procedures.

Legislation publication During the yer.r, annual volumes of

Commonwealth Acts, Statutory Rules and Australian Capital Territory Ordinances and Regulations for 1980 were published. It is expected that the volumes for 1981 will be published early in 1982-83.

Also during the year pamphlet reprints of 128 Acts and 109 Statutory Rules were published. The Statutory Rules Tables booklet in force on 31 December 1978 was published during the year, and it is expected that the Tables booklets of Commonwealth Acts 1901—78 and the Australian Capital Territory Laws

1911—78 will be published early in 1982—83. Action to produce Tables booklets to 31 December 1981 is proceeding.

Censorship In 1981-82, 231 books were released and 811 were prohibited; 2326 magazines were re­ leased and 1488 prohibited.

Of the 35 mm feature films examined by the Film Censorship Board in 1981-82, 63 films were classified as G (for general exhibition), 131 as NRC (not recommended for children under 12 years), 257 as M (for mature audiences over the age of 15 years) and 177 as R (restricted: persons between 2 and 18 years not admitted). A further 68 were released subject to special conditions. Registration was refused for 41 films.

Of the 16 mm commercial films examined in the same period, 85 were classified as G, 45 as NRC, 53 as M,46 as R and 57 were released subject to special conditions. Registration was refused for 22 films.

The Cinematograph Films Board of Review considered 17 appeals and upheld 7.

Marriage counselling and pre-marital education The Division examines and assesses the counselling activity and the organisational and financial structure of organisations which seek approval as marriage counselling organisations and makes recommendations to the Attorney-General. There are 22 approved marriage counselling organisations which receive financial assistance as deter­ mined by the Attorney-General. No new approvals were given during the year. For the

1981-82 year the Attorney-General author­ ised grants totalling $2.95 million to the approved marriage counselling organis­ ations.

The work of approved organisations, including their use of public funds, is con­ tinually monitored. Organisations are also provided with technical advice to assist them in improving and developing their marriage counselling services. For these reasons the Psychology Section of the Division inspected counselling centres in Queensland, the

Northern Territory, New South Wales, Victoria, South Australia and the Australian Capital Territory. It upgraded the computer­ ised procedures for collection of statistical information relating to the activities of

66

Divisional officers participated in, and pre­ sented papers to, workshops and conferences on marriage counselling, pre-marital edu­ cation and family therapy and management.

Information obtained from approved organisations shows that, in 1980-81, coun­ selling was offered at 161 centres throughout Australia. The organisations undertook

119 989 interviews (6.7% increase over the previous year) to deal with 30971 marriage counselling cases (5% increase over the previous year). Counsellors rated a satis­ factory outcome for clients in 72% of the cases. Clients who completed counselling rated a satisfactory outcome in 80% of the cases. Most cases come for counselling on the initiative of a marriage partner. Correspond­

ing information for 1981-82 is not yet available. In 1981-82, the Attorney-General autho­ rised grants totalling $50 000 to 14 organ­

isations providing programs of pre-marital education.

M arriage celebrants The Division is responsible for administra­ tion of the provisions of the Marriage Act 1961 relating to the authorisation of marriage celebrants.

A religious organisation may seek to be declared a recognised denomination under section 26 of the Act. A recognised denomi­ nation may deal directly with the State authorities for registration of its ministers as marriage celebrants. A minister of a religious organisation which is not a recognised denomination may apply for authorisation as a celebrant under sub-section 39(2) of the Act. In 1981-82, there were 56 authorisations of this kind.

Additionally, 30 other persons were appointed civil marriage celebrants under sub-section 39(2).

Remission of fines The Division assists with the preparation of recommendations to the Governor-General, through the Attorney-General, on applica­

tions for remissions of fines imposed under

federal laws and territory laws. In 1981-82, 133 such applications were dealt with.

Justices of the Peace and Commissioners for Declarations In 1981-82, 105 applications for appointment as a Justice of the Peace of the Australian Capital Territory were received; 13 appoint­ ments were made and 6 appointments were terminated.

During the year, 178 Commissioners for Declarations were appointed under the Statu­ tory Declarations Act 1959 and 134 appoint­ ments were revoked.

Curator of Estates of Deceased Persons in the Australian Capital Territory The Curator administers estates of deceased persons (there being no Public Trustee in the Australian Capital Territory). The total value of the estates administration of which was completed during the year was $3 million, as compared with $1.2 million in 1980-81. Currently, 385 estates with an estimated value of $1.3 million are being administered.

There is no charge where estates admin­ istered by the Curator do not realise more than $30 000. On estates in excess of this sum a commission of 5% is charged on the value of the assets administered.

Overseas maintenance orders The Division is responsible under the Family Law Regulations for the transfer of mainten­ ance orders to and from reciprocating over­

seas countries. In 1981-82, 353 orders were received and passed on to the appropriate Courts for registration.

Convention services The Family Law Regulations provide for the Secretary to the Department to transmit family law documents overseas for service in countries that are parties to the International Convention relating to Legal Proceedings in Civil and Commercial Matters. In 1981-82,

35 documents were transmitted overseas for service in Convention countries.

67

Court of Petty Sessions, Australian Capital Territory The following table details the various matters commenced in the Court of Petty

Sessions during the year:

Type of matter 1980-81 1981-82

N o n - c iv il 24 193 26 375

C iv il 7 199 6 2 1 3

S m a ll c la im s 8 509 7 9 1 4

C h i l d w e lfa re 2 6031 3 4 0 0

F a m ily law 648 624

W o r k m e n 's c o m p e n s a ti o n 83 113

C o r o n i a l 64 76

T o t a l 4 3 299 4 4 7 1 5

Autopsies are performed at the Forensic Medicine Centre, Kingston, on behalf of the Coroner by staff of the Capital Territory- Health Commission. The Commission has responsibility for the maintenance of the Centre but it is proposing transfer of this responsibility to the Attorney-General's Department. Discussions are being held with representatives of the Commission and other interested organisations.

The Attorney-General approved a contri­ bution of $20 000 to the Australian Stipen­ diary Magistrates Association’s third biennial convention which was held in Canberra in June 1982. Court and departmental staff

assisted in the organisation and running of the convention.

68

11: Commonwealth Reporting Service

Functions

The Commonwealth Reporting Service (CRS) is responsible for reporting proceed­ ings of federal courts and tribunals and government inquiries.

Activities during 1981-82

Reporting services During the year, standing approval for CRS services was given to the following additional bodies: • Petroleum Products Pricing Authority; • Pharmaceutical Benefits Remuneration

Tribunal; • Remuneration Tribunal; ® Security Appeals Tribunal; • Supreme Court of Christmas Island; and e Supreme Court of Cocos (Keeling)

Islands. Approval was given to reporting pro­ ceedings of the following public inquiries: • Inquiry into Medical Fees;

® Royal Commission of Inquiry into Drug Trafficking; e Royal Commission into Australian Meat Industry;

e Board of Accident Inquiry into Accident to Beech Super King Air Aircraft

VH-AAV at Sydney on 21 February 1980; • Court of Marine Inquiry into the ground­ ing of MV Poolta off Breaksea Spit. Queensland, on 14 March 1981; o Australia Post Inquiry;

® Telecommunications Inquiry;

• Independent Air Fares Committee (Cost Allocation Reviews for Ansett and TAA); and • Review of Customs Administration and

Procedures. In addition, the provision by CRS of a simultaneous verbatim transcript, for immediate world-wide distribution, of Media Centre press conferences by Heads of Government and delegations attending the Commonwealth Heads of Government

Meeting (CHOGM) in Melbourne, and the weekend Retreat in Canberra, proved to be an operational and professional challenge and an outstanding feature of the year's activities for CRS.

During 1981-82 the average number of sittings reported daily by CRS was 77. compared with an average of 71 in the year 1980-81.

Levels of service Following consideration of the need for the conservation of resources used for the pro­ vision of reporting and transcription services, in October 1981 the Government decided that the Attorney-General be authorised to pursue with current approved tribunals a selective transcript policy (whereby proceedings are reported but transcribed only when essen­ tial), the elimination of material to be included in transcript and the cessation of coverage of certain types of hearings. As a result of that direction, discussions have been held and are continuing between the Chief

Reporter and courts and tribunals serviced by CRS. Generally, tribunals have accepted the need for restraint, and procedures are being devised to identify areas where reporting or transcription services can be deleted or diminished. In 1981-82, CRS recorded

860 000 pages (a growth of 2.6% over 1980— 81) and, of those, 523 000 pages (61%) were transcribed. As the level of involvement and

69

activity of CRS in reporting and transcribing proceedings of tribunals has become relativ­ ely static in the past three years, the number and ratio of pages reported and transcribed in the year 1981-82 can be used as a basis for assessing trends in future years.

The Government also decided that the Attorney-General should be authorised to determine on behalf of Government those reporting applications that justify verbatim reporting and transcription, and that all departments, authorities and 4 tribunals seeking to use resources other than CRS be directed to seek the approval of the Attorney- General. As a result, several bodies have been given approval for verbatim reporting and transcription at various levels, using internal or private contractor resources. Those approval procedures will continue to be implemented.

Technical aids Computer-assisted transcription of reporter machine shorthand continues to be success­ ful, and improved techniques and procedures have resulted in an efficient and effective utilisation of the system at Melbourne. A unit is being installed in the Sydney office of CRS and a number of staff in New South Wales

have been undergoing training to improve their basic skills. On acquisition of the equipment they will commence computer training and preparation.

CRS is investigating the feasibility of transcribing reporter dictation and audio recordings by the use of word processors, which would permit computer-based and interstate-integrated transcript production, management, distribution, accounting, local and archival storage and retrieval; and enable CRS to provide to clients, such as Royal Commissions and government-appointed inquiries, a transcript data and indexing computer base service; and facilitate the

permanent retention of transcripts by Australian Archives.

Training The recruitment and training of casual transcription typists, in which category CRS employs about 220 staff, has been restruc­ tured to comply with the standards of entry and formal training applying to permanent staff. That policy, coupled with the use of the professional skills of experienced reporters in a quality control transcript reading role, is producing a higher standard of transcribing ability.

During the year CRS has continued its emphasis on developing the professional skills of reporting and transcription staff, with the construction and implementation by CRS of internal courses of instruction in basic

English (covering spelling, grammar and punctuation), typing skills, audio recording monitoring procedures, internal induction, shorthand speed development and effective transcript dictation, including dictation remote from but direct to transcription centres.

As part of that module, CRS Brisbane office designed and produced (with technical and editing assistance from the Educational Research and Development Unit of the Queensland Institute of Technology and the Audio-visual Department of Mt Gravatt College of Advanced Education) a thirty- minute videotape and model transcript of simulated court proceedings, related partic­ ularly to CRS audio recording and trans­ cribing procedures and standards. The expertise developed in that exercise will be

used to produce other films to train CRS staff in various components of their activities. CRS has continued to send staff to courses provided by the Attorney-General's Depart­ ment, the Public Service Board Training Centres, the Department of Employment and Industrial Relations and the Department of Immigration and Ethnic Affairs.

Involvement and liaison with educational institutions has continued and CRS has participated in careers advisory exhibitions. The videotape of simulated court proceedings will be used whenever possible in educational institution activities.

70

12: Human Rights Bureau

Functions

The Bureau was established on 5 August 1980 by administrative directive from the Attor­ ney-General. It operated within the Attorney- General’s Department until 10 December

1981, when it was subsumed within the Human Rights Commission established under the Human Rights Commission Act 1981. Briefly the Bureau had three essential tasks:

(1) at the request of the Attorney-General, to inquire into and to report to him on whether human rights as defined in the International Covenant on Civil and

Political Rights (ICCPR) were being in­ fringed by any action or procedure under Commonwealth law, or whether

specified Commonwealth law was in­ consistent with the Covenant;

(2) with the approval of the

Attorney-General, to promote discuss­ ion and understanding of human rights issues in Australia; and

(3) to maintain liaison with the States on human rights matters and, in particular, to service the Meeting of Ministers on Human Rights and co-ordinate the pre­

paration of the report required by Article 40 of the ICCPR (the ‘Article 40 Report').

Activities

inquiry and report The Attorney-General referred two com­

plaints to the Bureau. The first complaint originated with the Gay Rights Lobby in New South Wales and alleged that the Law Reform (Sexual Behaviour) Ordinance 1976 (A.C.T.) was in breach of Article 26 of the ICCPR. The complaint was referred to the Bureau by the

Attorney-General on 22 December 1980 and absorbed considerable staff time in research and consultations, and in developing methods for handling complaints of sub­ stance. The final report, which was submitted to the Attorney-General on 5 August 1981, found that the provisions of the Ordinance and associated legislation were not inconsis­ tent with Article 26 of the ICCPR. This finding was conveyed by tne Attorney-

General to the Gay Rights Lobby on 25 Nov­ ember 1981 together with a copy of the Bureau's report. The Gay Rights Lobby agreed that the report could be made

available to interested persons on request. The second complaint was referred to the Bureau on 16 July 1981. Itoriginated with the Church of Scientology Inc. and alleged that the proscription of the words ‘Scientology" and ‘Dianetics’ as company names in the

Australian Capital Territory breached the ICCPR. The Bureau, which submitted its report to the Attorney-General on 24 November 1981, found that the proscription

of the word ‘Scientology" was inconsistent with the provisions of Article 18 of the ICCPR. It recommends that the proscription

(of both the words "Scientology" and ‘Dianetics’) should be removed. On 30 November 1981 the Minister for Business and Consumer Affairs took action to remove the

proscription.

Promotion On 24-25 June 1981 the Bureau, in co­ operation with the Commonwealth Public Service Board, held a seminar for thirty Commonwealth Second Division officers on

the subject "Human Rights Legislation and

71

Machinery and their Implications for the Australian Public Service’. Guest speakers included several senior officers of Common­ wealth departments, the head of a non­ government organisation and a senior officer of a State government department. The pro­ ceedings of the seminar were published in

November and are available from the Aust­ ralian Government Publishing Service bookshops.

Liaison with the States As required by its Directive, the Bureau serviced the Meeting of Ministers on Human Rights (the Meeting of Ministers on Human Rights comprises the Ministers (currently the Attorney-General) from each State, the Northern Territory and the Commonwealth having responsibility for human rights matters).

The servicing involved both arranging the Meeting of Ministers, usually in association with the Standing Committee of Attorneys- General, and the preparation of papers for consideration at the Meetings. It also in­ volved preparing material for, and acting as chairman of, the meetings of Commonwealth and State human rights officers. All this was done in consultation with the Human Rights

Branch and other parts of the Attorney- General's Department, and with other Commonwealth departments and agencies as required, e.g. the Office of Women’s Affairs in the Department of Home Affairs and

Environment on the Women’s Discrimin­ ation Convention. The Bureau’s most time-consuming tasks in servicing the Meeting of Ministers related to

preparation of drafts of Australia’s Article 40 Report under the ICCPR, and of material relating to ratification of the International Convention on the Elimination of All Forms of Discrimination against Women.

As required by the ICCPR, the Article 40 report was submitted to the Secretary- General of the United Nations for trans­ mission to the Human Rights Committee, on

13 November 1981, twelve months after the Covenant came into force in Australia. The Bureau also assisted, in consultation with the Department and the Office of Women’s Affairs, in preparing material for Ministers’ consideration relating to the Commonwealth’s Proposal that Australia ratify the International Convention on the Elimination of All Forms of Discrimination against Women. The Convention was signed by Australia in Copenhagen in July 1980.

Human Rights Commission One of the purposes of establishing the Bureau was to provide a unit within the Department that would assist in carrying forward the Government’s policies in the

human rights field pending establishment of the Human Rights Commission. The Bureau spent considerable time in making prepar­ ations for the appointment and establishment of the Commission. This included adminis­ trative matters such as identifying accomm­ odation and preparing staff proposals and assistance with policy matters such as the appointment of members of the Commission and preparations for the inauguration of the Commission.

72

13: Washington Representative

As in previous years the departmental officer holding the Office of Counsellor (Attorney-General’s Department) at the Australian Embassy in Washington (who is also accredited to the Canadian Government

at Ottawa) has fulfilled a necessary and active role. During the year 1981-82 the officer performed the following broad functions: * the provision of legal advice and other

legal services to the Government in connection with matters of concern arising in North America; • the provision of legal representation in

Australian delegations to conferences; ® maintaining liaison with legal authorities in the United States and Canada and

reporting to the Government on legal developments in those countries of relevance to Australia. The officer also provided services of a legal nature to other Commonwealth bodies such as the Law Reform Commission and the Trade Practices Commission.

A major proportion of the Washington representative's time during the year was devoted to issues relating to United States antitrust laws, in particular to matters

relating to the extraterritorial reach of United States antitrust laws. Matters that warrant special mention again are the Pacific Shipping Investigation by the United States Depart­ ment of Justice, and negotiations for a bilateral agreement with the United States on antitrust enforcement.

The representative was also concerned with issues of extraterritorial application of other United States laws arising in the context of litigation. These concerned, first, the crash of a Nomad aircraft in Indonesia, and secondly, the mining of bauxite in Western Australia.

The officer led the Australian delegation which presented Australia’s third report to the United Nations Committee on the Elimination of Racial Discrimination, and took part in a working group on international

negotiable instruments which met in January 1982. He also provided assistance with the procurement of military equipment from the United States.

On two occasions the officer attended meetings of an OECD Working Party of the Committee on Restrictive Business Practices and presented Australia's viewpoint on those

issues.

73

14: Standing Committee of Attorneys-General The Committee held regular meetings in July and November 1981 and in February 1982. As at 30 June 1982 there were forty-eight items on the agenda.

The major work undertaken by Standing Committee during the year was the^develop- ment of proposals for uniform defamation laws following reports on this subject by the Law Reform Commission and the Law Reform Commission of Western Australia. Substantial progress has been made with agreement on most of the major issues which

would form the basis of a uniform defamation law, including such aspects as available remedies for defamation, defences and limit­ ation periods for bringing suits.

In recent times both Federal and State Courts have drawn attention to the diffi­ culties for litigants arising out of jurisdic­ tional limitations of courts. The Standing Committee considered a number of options designed to minimise the occasions on which one court could not determine all aspects of a dispute. The Commonwealth now has the matter under consideration and will take into account the views expressed by State Attorneys-General.

The tentative proposals developed by the Standing Committee for legislation relating to commercial arbitration were the basis of a Bill introduced into the Victorian Parliament on 9 December 1981 for the purposes of eliciting public comment on the proposals by 30 June 1982.

Standing Committee agreed to legislation which would allow prisoners serving a sentence in one State to serve the remainder of their sentence in their home State. The legislation would also provide for prisoners in one State to be returned to their home State to stand trial for other offences.

Standing Committee requested officials to examine the criminal law and property law to see whether any special problems existed in those areas for the intellectually handi­ capped, and to report back to them.

Ministers continued their consideration of the development of a computer-based legal

74

information retrieval system with a view to evolving a national system. Late in 1981 the Victorian and New South Wales Govern­ ments invited and received proposals for systems in their respective States as the first steps in the development of the national system.

Standing Committee recognised the diffi­ culties created by claims of extraterritorial jurisdiction under overseas domestic antitrust laws, and agreed to enact State legislation

underpinning the Commonwealth Foreign Antitrust Judgments (Restriction of Enforce­ ment) Act 1979 to prevent the enforcement of objectionable foreign antitrust judgments in the event of a successful constitutional challenge to the Commonwealth Act. It was also agreed that State and Territory legis­ lation providing for the recognition and enforcement of foreign judgments should provide that a defendant shall not be taken to have submitted to the jurisdiction of the foreign court if the State or Territory Court is satisfied that the defendant took no part in the proceedings in the foreign court other than to contend that that court did not have juris­ diction in the proceedings or that, having jurisdiction, it should not exercise that jurisdiction on consideration of comity.

Consideration was also given to the following matters some of which have been mentioned in previous reports: • artificial insemination; • problems arising out of a person’s sexual

reassignment; • provisions concerning the liability for, and the payment of compensation for, damage arising out of nuclear activities; • the implications of the ratification by

Australia of: (i) the Covenant on the Civil Aspects of International Child Abduction; (ii) the Convention on International

Access to Justice; and (iii) the United Nations Convention on Contracts for the International Sale of Goods.

15: Advisory Committee on the Development of Legal Computer Systems

The Advisory Committee met on three reports to the Standing Committee of occasions during the year and furnished two Attorneys-General.

75

16: Co-operation with the Law Council of Australia

Consultations During the year 1981-82, formal, consulta­ tions on matters of common interest were held between the Department and the Law Council of Australia on 2 December 1981.

Informal discussions on a number of topics also occurred from time to time during the year at functions which officers of the

Department and officials of the Law Council attended.

Law Council Exchange Scheme The successful operation of this scheme con­ tinued in the period covered by this Report. During this period the exchange referred

to in last year's Report involving an officer from the Advisings Division of the Depart­ ment and a solicitor from a Sydney firm

of solicitors was completed. A further exchange took place in 1981-82 whereby an officer of the Federal Courts and Tribunals

Registry in Melbourne went to work as Administrative Officer in the office of the Law Council of Australia. During the year, arrangements were also made for a member of the staff of the Department of Accounting and Finance of Monash University to work for a period of approximately six months, commencing in July 1982, in the Business Affairs Division and the Corporate Affairs Division of the Department's Central Office, and in the National Companies and Securities Commission. Arrangement were also made for an exchange during 1982-83 between an officer of the Department and a firm of solicitors in Perth.

76

Appendix 1

Profile and Objectives of the Attorney-General’s Department

Profile The Attorney-General is the Common­ wealth’s Law Minister and chief Law Officer. The Attorney-General’s Department is his

staff and constitutes the largest law office in Australia. But this staff, which comprises approxi­ mately 2255 persons throughout the Com­ monwealth, performs many functions in addition to providing legal services to the Commonwealth Government and Common­ wealth departments and authorities.

The Department was established at Federation in 1901 and has functioned continuously since then as one of the key Departments of State of the Commonwealth of Australia.

The Department functions within the system of responsible government and parliamentary democracy established by and under the Constitution. This system is not static and encompasses not only established

principles such as the rule of law but also new developments of which the principles of administrative review and freedom of infor­

mation are the most recent.

Objectives The objectives of the Department are: • to provide timely and effective assistance to the Minister in the discharge of his

responsibilities as Commonwealth Attor­ ney-General; • to provide sound, constructive and timely legal advice and services to the Common­

wealth Government and departments,

and also to Commonwealth authorities that depend upon the Department for legal advice and services; • to conduct litigation on behalf of the

Commonwealth and Commonwealth authorities efficiently and effectively, with full regard to the public interest and the requirements of law and justice; • to administer laws and programs and to

manage administrative and specialist functions coming within the Attorney- General’s own Ministerial responsibilities in an efficient and effective way and so as to advance their objects or purposes, with full regard to the needs and welfare of the ‘clients' those laws, programs and functions are intended to serve; • to review and develop laws, policies and

programs on such matters so as to

overcome any defects and so as to respond to new developments and aspirations and changing circumstances; • to provide timely, efficient and effective support services for all matters coming within the responsibilities of the

Attorney-General and the Department: • to carry out all tasks at the highest levels of professional competence and to dis­ charge the management responsibilities

involved in accordance with sound and up-to-date management techniques; and • to be a responsible public employer, just and fair in its dealings with staff, with good staff relations and concerned with providing the opportunity for all to have satisfying work.

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Appendix 2

Administrative Arrangements Order—Extract

( C o m m o n w e a lth o f A u stra lia G a z e tte N o . S 9 1 , 7 M a y 1 9 8 2 )

T he Attorney-General's Department

Principal matters dealt with Law and justice H um an rights Civil liberties Legal drafting Bills of exchange and promissory

notes M arriage Divorce and matrimonial causes and, in relation thereto, parental

rights, and the custody and guardianship of infants Recognition throughout the Com­ monwealth of the laws, the

public Acts and records, and the judicial proceedings of the States Service and execution throughout the Commonwealth of the civil

and criminal process and the judgments of the courts of the States Censorship

Legal aid, including the provision of legal services through the Australian Legal Aid Office Copyrights

Business practices Bankruptcy and insolvency C onsum er affairs

Enactments administered by Minister Acts Citation Act 1976 Acts Interpretation Act 1901 Administrative Appeals Tribunal Act 1975

Administrative Changes (Consequential Provisions) Acts Administrative Decisions (Judicial Review) Act 1977 Amendments Incorporation Act 1905 Arbitration (Foreign Awards and Agreements) Act 1974 Australian Capital Territory Evidence (Temporary Provisions) Act 1971

Australian Capital Territory Supreme Court Act 1933 Australian Security Intelligence Organization Act 1979 Bankruptcy Act 1966 Bills o f Exchange Act 1909 Bounties Procedure Act 1907 Civil Aviation (Offenders on International Aircraft) Act 1970 Coastal Waters (Northern Territory Powers) Act 1980 Coastal Waters (Northern Territory Title) Act 1980 Coastal Waters (State Powers) Act 1980 Coastal Waters (State Title) Act 1980 Common Informers (Parliamentary Disqualifications) Act 1975 Commonwealth Legal Aid Act 1977 Commonwealth Motor Vehicles (Liability) Act 1959 Commonwealth Places (Applications of Laws) Act 1970 Commonwealth Prisoners Act 1967 Companies Act 1981 Companies (Acquisition of Shares) Act 1980 Companies (Acquisition of Shares-Fees) Act 1980 Companies (Fees) Act 1981 Companies (Transitional Provisions) Act 1981 Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 Complaints (Australian Federal Police) Act 1981, Part VI Conciliation and Arbitration Act 1904, sections 98 to 103B inclusive, Part VII (in

so far as it relates to the functions of the Australian Industrial Court and the Federal Court of Australia); sections 141A and 141B, section 168; and section 198 (in so far as it relates to prescribing the practice and procedure, fees to be charged, and matters with respect to costs and expenses, the taxation of costs and expenses, and the review of any such taxation, in proceedings before those Courts or prescribing matters for the purposes of Part VII, in so far as it relates to the functions of those Courts) Copyright Act 1968 Courts-Martial Appeals Act 1955 Crimes Act 1914 Crimes (Aircraft) Act 1963 Crimes at Sea Act 1979 Crimes (Biological Weapons) Act 1976 Crimes (Currency) Act 1981 Crimes (Foreign Incursions and Recruitment) Act 1978 Crimes (Hijacking of Aircraft) Act 1972 Crimes (Internationally Protected Persons) Act 1976 Crimes (Overseas) Act 1964

78

Crimes (Protection of Aircraft) Act 1973 Criminology Research Act 1971 Crown Debts (Priority) Act 1981 Customs Act 1901, section 50, in so far as it relates to the making of regulations

making provisions in the nature of censorship of imported goods (including printed matter and films) Death Penalty Abolition Act 1973 Defence (Re-establishment) Act 1965, Part III; and section 59 so far as it relates to Part III Defence (Transitional Provisions) Act 1946, and Defence Transition (Residual Provisions) Act 1952, in relation to National Security (Supplementary) Regulation 100 Defence (Visiting Forces) Act 1963, Part II Domicile Act 1982 Environment Protection (Northern Territory Supreme Court) Act 1978 Evidence Act 1905 Extradition (Commonwealth Countries) Act 1966 Extradition (Foreign States) Act 1966 Family Law Act 1975 Federal Court of Australia Act 1976 Federal Court of Australia (Consequential Provisions) Act 1976 Federal Proceedings (Costs) Act 1981 Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 Freedom of Information Act 1982 Geneva Conventions Act 1957, other than Part IV Genocide Convention Act 1949 High Court Justices (Long Leave Payments) Act 1979 High Court of Australia Act 1979 Human Rights Commission Act 1981 Interim Forces Benefits Act 1947, section 8 Judges (Long Leave Payments) Act 1979 Judges' Pensions Act 1968 Judicial Appointment (Western Samoa) Act 1980 Judiciary Act 1903 Judiciary (Diplomatic Representation) Act 1977 Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 Jury Exemption Act 1965 Law Courts (Sydney) Act 1977 Law Officers Act 1964 Law Reform Commission Act 1973 Maintenance Orders (Commonwealth Officers) Act 1966 Marine Insurance Act 1909 Marriage Act 1961 Matrimonial Causes Acts National Companies and Securities Act 1979 Nauru (High Court Appeals) Act 1976 Ordinances and Regulations (Notification) Acts Parliamentary Counsel Act 1970 Parliamentary Papers Act 1908 Privy Council (Appeals from the High Court) Act 1975 Privy Council (Limitation of Appeals) Act 1968 Public Order (Protection of Persons and Property) Act 1971 Racial Discrimination Act 1975 Re-establishment and Employment Act 1945, Part IX; Division 1 Part XI in so

far as it extends Part IX; and Part XII to the extent to which it applies or may be applied in relation to the foregoing Removal of Prisoners (Australian Capital Territory) Act 1968 Removal of Prisoners (Territories) Act 1923, in so far as it relates to the release of prisoners and criminal lunatics removed from the Northern Territory of Australia Secret Commissions Act 1905 Securities Industry Act 1980

The Attorney-General’s Department — continued

79

The Attorney-General’s Department — continued

Securities Industry (Fees) Act 1980 Service and Execution of Process Act 1901 State and Territorial Laws and Records Recognition Act 1901 Statute o f Westminster Adoption Act 1942

Statute Law Revision Acts Statutory Declarations Act 1959 Statutory Rules Publication Act 1903 Telecommunications (Interception) Act 1979 Trade Practices Act 1974, except to the extent administered by the Minister

for Transport and Construction Trading with the Enemy Act 1939, except in so far as it relates to the control of enemy property

80

Secretary

Corporate Affairs Division

Washington Represen­ tative

Deputy Secretary

Deputy Secretary

Crown Solicitor

Deputy Secretary

Family Court Registry

Administrative Review Council Secretariat

Administrative Appeals Tribunal Principal

Registry

F ederal Court and Tribunals

Registry

Supreme Court A.C.T. Registry

Security Appeals Tribunal Principal

Registry

Advisings Division

Crown Solicitor's Division

Business Affairs Division

Commonwealth Reporting Service

Justice Division

Australian Legal Aid Office Division

Legislative Drafting Division

Management and Special Services Division

Trade Practices and Consumer Affairs Division

Federal Courts Family Law Territories and

Law Reform Division

Appendix 3 Organisation chart of Attorney-General’s Department at 30 June 1982

Appendix 5

M cans and needs test and contributions guidelines applied by the Australian Legal Aid Office

The Government has approved the revision of the guidelines for the Australian Legal Aid Office means and needs test. The effect is to align the means and needs test to the single age pension, to update the list of authorised deductions from gross income and to liber­

alise the asset guidelines. The new guidelines will increase eligibility for assistance primarily by increasing the permissible disposable income, by increasing the dependant’s allowance in the asset guide­ lines and by making special provision for m otor vehicles.

Guidelines The means and needs test for eligibility for assistance from the Australian Legal Aid Office is the inability of the applicant to afford the cost of representation in the particular case. The guidelines are intended to provide a general standard for measuring ‘inability’ but they are to be applied with discretion in the

individual case. Where proceedings are costly, there will be a greater need to keep in mind the basic test. Approval of assistance is

to be reconsidered where there is a change in financial circumstances. An applicant comes within the guidelines if neither his disposable weekly income nor his

assets exceed the amounts in the following paragraphs.

Disposable weekly income The income guidelines are: • Applicant without dependant—$67* per week

• For one dependant — add $15 per week • For each additional dependant — add $ 10 per week. • this figure will be increased twice yearly commensurate

with any increase in the base amount payable to an individual for the age pension. (At 30 June 1982 this figure was $74 per week.)

The disposable weekly income of the applicant is calculated by deducting from gross weekly income the following items, calculated on a weekly basis:

1. income tax; 2. superannuation contributions; 3. one-half of any board paid by applicant: 4. rent or mortgage payments for dwelling

house in which applicant resides; 5. house and contents insurance premiums; 6. municipal rates and water rates for dwelling house in which applicant

resides;

7. maintenance payments to spouse and children of applicant; 8. payments under hire purchase agree­ ments and credit sales contracts for

household goods and furniture used by applicant in his home; 9. payments under loan agreements with credit unions, banks, building societies

or other financial institutions where the moneys borowed have been used for the purchase of household goods and furni­

ture used by the applicant in his home; 10. health insurance payments to registered health insurance organisations not in excess of weekly contributions under

Medibank Private combined basic hospital and basic medical tables;

83

11. child-minding fees paid to enable a parent to earn a livelihood; 12. payments under hire purchase agree­ ments, credit sales, contracts or loan

agreements, for any motor vehicle necessary for the domestic or employ­ ment purposes of an applicant, unless its value is unusually high; and 13. payments pursuant to garnishee or like

orders in respect of items 1 to 12 above. Family allowances are not to be taken into account in determining the eligibility of persons seeking legal aid from the Office.

Assets The asset guidelines are; (a) Estimated cost of proceedings less that $300 — $500

For each dependant — add $500 (b) Estimated cost $300 or more — $1000 For each dependant — add $500 Assets include money that is immediately available such as bank, building society and credit union deposits, or that can readily be obtained, for example by loan or by selling a marketable asset or converting negotiable securities such as shares and debentures. Assets do not include wearing apparel, tools of trade, household furniture or interest in a dwelling house in which the applicant resides unless the value is unusually high. Any motor vehicle necessary for the domestic or employ­ ment purposes of an applicant should be dis­ regarded as an asset unless its value is unusually high.

In the case of a married applicant, the combined incomes and assets of both husband and wife are to be taken into

account, provided that they are living together. Ordinarily, couples living together in a de facto relationship will be regarded as husband and wife.

Guidelines for dissolution proceedings Aid will not be granted in dissolution of marriage unless circumstances exist which, in the opinion of the Australian Legal Aid

Office, render it imperative that the marriage be dissolved and the applicant is in a position of special hardship.

Contributions A minimum contribution of $20 will be im­ posed in all cases as a matter of course unless the applicant can demonstrate that this would impose a real financial hardship. A contri­ bution in excess of $20 will be required in appropriate cases when the applicant is able to afford it.

A contribution may be imposed or in­ creased having regard to the outcome of the proceedings. A person who could not orig­ inally afford to bring proceedings may well be in a different position after settlement of a dispute relating to property or a claim for damages.

The contribution is to be paid by the legally ii assisted person to the private practitioner at the time he is taking instructions and, in any event, no later than at the time the case is set down for hearing. Contributions are to be paid in a lump sum or, at most, by two

payments and retained by the private practi­ tioner as part of his fee.

Merits The question to be answered is whether it is reasonable in all the circumstances to grant aid, regard being had to all relevant matters

including: (a) the nature and extent of any benefit that may accrue to the applicant from the provision of the assistance or of any

detriment that the applicant may suffer if the assistance is not provided; and (b) in the case of assistance in relation to a proceeding — the likelihood of the pro­

ceeding terminating in a manner favourable to the applicant.

Date of operation All decisions made on and after 19 August 1981 concerning the provision of legal aid are to accord with these guidelines.

84