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Legal and Constitutional Affairs Legislation Committee
Australian Law Reform Commission

Australian Law Reform Commission


CHAIR: Welcome. Do you have an opening statement.

Senator BRANDIS: I would like you to tell us where the commission is at with the copyright law reform reference.

Ms Croucher : At this stage the commission has not received the terms of reference, formally. However, the terms of reference have been out to consultation. As I understand it, we anticipate receiving them very shortly.

Senator BRANDIS: You surprise me. This is no criticism of you or of the commission. This was announced by the former Attorney-General, Mr McClelland, on 25 February 2011. That is 15 months ago. Why does it take so long? Perhaps, Mr Wilkins, you could explain—or the minister possibly, although I doubt it. Why, when this was announced by Mr McClelland 15 months ago, has it taken so long even to say, 'We are not even at the stage at which the terms of reference have been finalised'?

Mr Wilkins : I do not see any problem with that. I do not understand the puzzlement. This is when it was scheduled to occur.

Senator BRANDIS: It strikes me that when Mr McClelland made this announcement in February 2011—

Mr Wilkins : He was foreshadowing it; that is true.

Senator BRANDIS: Sure, but I can tell you, Mr Wilkins, having had many discussions with various stakeholders in the intellectual property area, that there has been an expectation that this would have been underway sooner than this.

Ms Croucher : I am very happy to make a response. The work of the commission needs to be staged according to the commission's capacity. In the meantime, to have advanced discussion of terms of reference and potential areas is a very constructive thing, from the commission's point of view, to be able to stage our work. In the meantime, we have completed two other major inquiries.

Senator BRANDIS: Those being?

Ms Croucher : An inquiry into family violence and Commonwealth laws, and also the National Classification Scheme review. Both of those have been completed in that time, as well the discovery report, which was completed in March.

Senator BRANDIS: Where do we go from here? Obviously without committing yourself too definitively, can you give us some indicative timelines about the process in relation to the copyright law reference and when we can expect the terms of reference to be finalised and the review to commence?

Ms Croucher : To the extent that I can, the draft terms of reference have been open to public consultation, so there has been considerable input already.

Senator BRANDIS: Since when?

Ms Croucher : It was earlier this year. I cannot give you a pinpoint date; however, because the inquiry was anticipated and terms of reference were under consultation, I have had a team that has been doing preliminary research. We have a recently appointed commissioner to lead the inquiry.

Senator BRANDIS: That being?

Ms Croucher : Professor Jill McKeough, the Dean of Law at the University of Technology Sydney—a position from which she is on leave. The team is revved up and working already. In terms of completion, it is anticipated that the inquiry will take 18 months, which allows for considerable stakeholder input in a staged way with the release of an issues paper probably in August and a discussion paper—

Senator BRANDIS: In August of this year?

Ms Croucher : Of this year. The normal three-stage process can be undertaken to enable the fullest community and stakeholder engagement that we can manage within the terms of reference.

Senator BRANDIS: When will the terms of reference be finalised by?

Ms Croucher : That is a matter for the Attorney at this stage, but we anticipate that it will be shortly.

Senator BRANDIS: What does shortly mean? It does concern me, as the shadow attorney, that there have been some rather inexplicable delays across this portfolio—again, this is not your fault Professor Croucher—particularly since the new Attorney-General was installed at the end of last year. I am astonished to learn that draft terms of reference cannot be finalised in a matter of several months. How long does it take for draft terms of reference, which have been published to stakeholders and other interest groups, to be finalised? For example, how long has it taken with previous inquiries?

Ms Croucher : With classification, the same opportunity was taken to put the terms of reference out to consultation. This added considerable value to the commencement of the inquiry because key stakeholders were already engaged and some views were already expressed, which facilitated our preliminary work in our issues paper in classification. I anticipate that the same value will be obtained by having those terms of reference out to consultation with stakeholders' submissions available to the commission to help us inform our early work.

Senator BRANDIS: Professor Croucher, while you are answering the questions that I am about to put to you, could one of your assistants in the room please find out for me, so we do not have to have the question taken on notice, the date on which the draft terms of reference were circulated? You said it was much earlier this year, so I am assuming that that means January or February sometime.

Ms Croucher : Perhaps I can refer that question to the department for the precise timing.

Senator BRANDIS: Professor Croucher, I do not care who answers the question; I just want the answer. If that can be obtained easily by a phone call so as not to delay things, then I ask for that to be done while we progress with the matter. When the draft terms of reference were circulated, was a date given to the stakeholders by which feedback or responses were sought?

Ms Croucher : Yes, I understand—

Senator BRANDIS: What was the date?

Ms Croucher : I understand it was a date in March, but perhaps the officers in the department who are making those inquiries can confirm the precise timing, as this is a matter that does not happen within the commission itself.

Senator BRANDIS: A date in March—Mr Wilkins, can you do better than that for us, please?

Mr Wilkins : No, I cannot, because I do not have the information before me. We were told that we were going to be discussing this material this afternoon, so you will have to bear with us while we get people up here who are working on the copyright area.

Senator BRANDIS: It is only two dates that I want. I want the date on which the terms of reference were circulated and the date—

Mr Wilkins : We will get it as soon as we can.

Senator BRANDIS: Thank you so much. Since we know that the responses to the draft terms of reference were due on a date in March and it is now 23 May, can anyone explain the delay for me, please? Can you, Mr Wilkins?

Mr Wilkins : As I said, Senator, I do not have the information before me. If you will bear with me, I will get advice.

Senator BRANDIS: Okay, we will come back to that. Is there an intermediate step, Professor Croucher, between the finalisation of the terms of reference and the commencement, in a formal sense, of the inquiry?

Ms Croucher : When the terms of reference are announced publicly, we can formally commence our work. In a case such as this—and with the classification inquiry we undertook last year, reporting in February—given that the discussion of the terms of reference through public consultation is public, we can obviously begin our work if I have a team that is available to begin that work, which has been the case certainly with the copyright inquiry.

Senator BRANDIS: There is no intermediate step? Once the terms of reference are finalised, you can formally initiate the inquiry?

Ms Croucher : Yes, on the basis that I have the team available to begin that work.

Senator BRANDIS: That is a resourcing issue.

Ms Croucher : Indeed.

Senator BRANDIS: And do you have the team available? You told me you had identified a professor—

Ms Croucher : The appointment of Professor McKeough—

Senator BRANDIS: Professor McKeough, yes.

Ms Croucher : is by the Attorney, so it is not a case of my identifying or recruiting; it is a statutory appointment.

Senator BRANDIS: When was she appointed?

Ms Croucher : The appointment commenced in May, this month, just over two weeks ago.

Senator BRANDIS: How many people are on the team?

Ms Croucher : I have four legal officers who are available, plus the other staff of the commission who support each inquiry.

Senator BRANDIS: So you have Professor McKeough, who is now on the payroll, as it were, and four legal officers who have been allocated to the inquiry, plus the support staff who perform—what—a corporate services function effectively, do they?

Ms Croucher : The inquiry support team includes the website manager, who is integral to all of our work, both our inquiries and the work of the commission more generally; Ms Wynn, the executive director, who provides a key support role and is in fact leading a team to Perth in a couple of weeks for consultation; the project coordinator, who coordinates both roles; plus our librarian.

Senator BRANDIS: All right. You said 18 months from the commencement is your anticipated duration of the inquiry; is that right?

Ms Croucher : That is correct. That is the one that has been foreshadowed.

Senator BRANDIS: So we would expect, if the inquiry commences shortly, as you have told us you would like to see it do, about the end of next year?

Ms Croucher : Approximately November, I anticipate.

Senator BRANDIS: November 2013?

Ms Croucher : That is correct.

Senator BRANDIS: After the next election.

Ms Croucher : That is not a matter for me.

Senator BRANDIS: No, I am just pointing out that there will be an election before November 2013.

Ms Croucher : The commission's work with our current inquiries occupies us well to that time—November.

Senator BRANDIS: Does that include or exclude the report-writing time?

Ms Croucher : The reporting date is anticipated as being the end of November, so that is the entire process.

Senator BRANDIS: I see. All right. Professor, can I ask you a broader question about the approach of the Australian Law Reform Commission. As in all things that the government does, outcomes are at least in part a function of resources. It has seemed to me for quite a long time now that, although the Australian Law Reform Commission does wonderful work of the very highest standard, it does, if I may say so, somewhat overcapitalise its research. Let me give you an example of what I mean. The privacy report of a few years ago was nearly 2,700 pages long. I am not aware of anyone—academic, government body, think tank; any institution in the world—that has produced a 2,700-page document about privacy. Do you have a view, or would you entertain the view, that perhaps, if the commission, without diminution of the quality of its output, were to produce shorter and less discursive reports, it might actually be able to do more useful work because it could engage in a greater number of inquiries?

Ms Croucher : I thank you for your question. There are a number of elements in that that I would like to answer. Firstly, I thank you for the acknowledgement that the work we do is wonderful. Secondly, the privacy report, while a very large report, addressed a very wide area of law which required a thoroughness which is the standard that we maintain in our work as being important. However, Senator—

Senator BRANDIS: Well, I do not know. Warren and Brandeis wrote an article in the Harvard Law Review in the 1890s and it was only 14 pages long, and it is the best thing ever written about privacy.

Ms Croucher : Senator, if the quality of work were to be judged by the number of pages greater or less, I do not think that is the right benchmark to adopt.

Senator BRANDIS: No, that is true.

Ms Croucher : If I can also point to the earlier privacy report of the Australian Law Reform Commission, over 20 years prior to the one to which you refer, at that time it was 2,000 pages long. When work on privacy is undertaken, because of the broad nature of the terms of reference—which is another matter to which I can refer—the response for that kind of subject may require a lengthy report.

However, in terms of your question to me about the commission's work, we have done some considerable reflection on the way we communicate our work. So our reports have been shorter, but that is partly a reflection of the scoping of the terms of reference. If the terms of reference are scoped to a narrower focus, then the report itself can be a shorter report, because qualitatively, to answer the terms of reference, you may not need 3,000 pages to achieve it.

The other thing that we have been doing is a significant reflection on our style of reporting, moving from the more laboured form of scientific reports, which was the vogue in report writing of perhaps previous eras. The style in which we write is a much more focused style. By doing that we have achieved a certain streamlining of the volume of the writing, not the research but the way in which it is communicated. The other thing we have been doing in all our recent reports since I have been president is accompanying the reports with a summary report, which is a very short document which provides an overview of the policy framework, the key principles upon which the recommendations are based and the recommendations themselves, to provide an effective, quick communication of our work. So I think measuring in terms of pages is perhaps not the right point to put.

Senator BRANDIS: It is not a pure science; I understand that, Professor Croucher. There is an element of how long is a piece of string in this discussion and I accept that. That having been said, for the ALRC to decide that the best way to address privacy issues in Australia and the most efficient use of its resources is to produce a document that is not only a very long report—even by the ALRC's standards—but in fact the longest document ever written about privacy as far as I can determine by any institution, agency, individual, university or think tank in any country in the world ever seems to me to be overcapitalising the research.

Ms Croucher : If that were a comment on the quality I might take it on, but I do not think it is.

Senator BRANDIS: You have got to be an outcomes focused agency—all agencies have to be—and I just do not think that you can deny that there is a relationship between the amount of research work and sheer volume that goes into the production of a report and the law reform task which you are commissioned to perform. My adjuration to you is to consider whether or not a more concise and focused style of report writing might be a more efficient use of your resources.

Ms Croucher : Thank you for your comment, Senator. I think that if you did a close analysis of our reports since the privacy report you might say that we have been doing exactly as you have observed.

Senator BRANDIS: That is good. Coming back to the copyright reference—and perhaps it is convenient that the terms of reference are not finalised, because we had the iiNet case decision—will the copyright reference address the issues raised by the court in the iiNet case?

Ms Croucher : The precise scope of the terms of reference may or may not go in that direction. That is a matter upon which we will wait to receive the final terms of reference.

Senator BRANDIS: We are going around in circles, are we not? You have said that the terms of reference are up for negotiation. We have had this important intellectual property case handed down by the High Court recently. Since the terms of reference are still open, is there any reason why they would not take into account the consequences of the iiNet case?

Ms Croucher : As such a significant decision will obviously form the breadth of the research in undertaking such an important inquiry, precisely whether the matter raised in that case is one that forms part of a package of recommendations will depend on the final scope of the terms of reference.

Senator BRANDIS: Indeed but, given, as you say, it is one of the most important intellectual property cases in this country for several years, is there any reason why a review of copyright law—the terms of reference of which are currently being settled—would not deal with it?

Ms Croucher : It may well, Senator.

Senator BRANDIS: What is your view?

Ms Croucher : I do not have a view at this stage. When one undertakes an inquiry into a broad area of law such as copyright—and it is one I welcome—clearly we have to undertake a broad research base in order to get the focus in our own development of thinking over the course of the inquiry. In any inquiry obviously we start with questions—we never start with answers—and such an important matter before the High Court would clearly be one that we would look at. But whether it is one upon which recommendations will flow clearly must reflect the precise terms of reference that we receive.

Senator BRANDIS: I think we are going around in circles, with respect, Professor Croucher. Mr Wilkins, after the iiNet decision was handed down, the Attorney-General was reported, through a spokeswoman, as saying that the government would examine the decision and encourage the parties to work together and that the Attorney-General's Department would continue to facilitate these discussions. I assume that has been happening.

Mr Wilkins : That is right.

Senator BRANDIS: Should, in your view, a review of copyright law by the ALRC specifically address issues raised by the decision?

Mr Wilkins : I do not think at the moment that it should.

Senator BRANDIS: Tell me why.

Mr Wilkins : Because we are still having reasonably fruitful discussions between the parties and, if a position can be arrived at that sorts out some of these issues through an industry based solution that is acceptable from a consumer protection point of view as well, why would one hold that up for several months for the ALRC to review it if you can actually sort it out now?

Senator BRANDIS: That is a fair point you make. If I may tell you, the industry stakeholders with whom I deal on a frequent basis speak very well of the consultation process that you superintend and speak well of you personally in that role. But, given that we are having this once-in-a-generation review of copyright law and these issues have been presented by the courts, there seems to be a natural synergy between the two things.

Mr Wilkins : There is an argument that it should include this. It may well be that we attempt to come to a landing and, if that is not possible, the Attorney might then expand the terms of reference or change the terms of reference. But the terms of reference, as Professor Croucher said, work best when they are tailored to a fairly specific question, and this will be talking specifically about some of the particular issues in the Copyright Act rather than the Copyright Act at large. So I think it is a bit premature to call on that point yet—that is all. We might see if we can arrive at an arrangement and, if not, it might be something that is better dealt with through the ALRC process. That is a view. Incidentally, did you want those dates?

Senator BRANDIS: Yes, please.

Mr Wilkins : I will get David Fredericks to answer.

Mr Fredericks : The dates are as follows. On 29 March the draft terms of reference were publicly circulated, on 27 April the public consultation period closed and on 10 May the terms of reference were submitted to the Attorney-General.

Senator BRANDIS: Do they have to go to cabinet, or can the Attorney-General simply approve them by ministerial decision?

Mr Wilkins : I think that is a matter of convention. Some terms of reference would go to cabinet, some might not and some might be consulted on.

Senator BRANDIS: What about these ones, though? I don't want to muck around with this.

Mr Wilkins : I would assume there would be some ministers in the cabinet who should be consulted on the terms of reference, clearly.

CHAIR: We have no more questions for you. Thank you for your time today.