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Law Reform Commission Act - Law Reform Commission - Report - Report and financial statements, together with Auditor-General's Report - Year - 1983-84


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The Parliament of the Commonwealth of Australia

THE LAW REFORM COMMISSION

Annual Report

1984

Presented 16 April 1985 Ordered to be printed 23 April 1985

Parliamentary Paper No. 66/1985

Publications of the Law Reform Commission

Reports ALRC 1 Complaints Against Police, 1975 ALRC 2 Criminal Investigation, 1975 ALRC 3 Annual Report, 1975 ALRC 4 Alcohol, Drugs and Driving, 1976 ALRC 5 Annual Report, 1976 ALRC 6 Insolvency: The Regular Payment of Debts, 1977 ALRC 7 Human Tissue Transplants, 1977 ALRC 8 Annual Report, 1977 ALRC 9 Complaints Against Police (Supplementary Report), 1978 ALRC 10 Annual Report, 1978 ALRC 11 Unfair Publication: Defamation and Privacy, 1979 ALRC 12 Privacy and the Census, 1979 ALRC 13 Annual Report, 1979 ALRC 14 Lands Acquisition and Compensation, 1980 ALRC 15 Sentencing of Federal Offenders, 1980 ALRC 16 Insurance Agents and Brokers, 1980 ALRC 17 Annual Report, 1980 ALRC 18 Child Welfare. 1981

ALRC 19 Annual Report, 1981 ALRC 20 Insurance Contracts, 1982 ALRC 21 Annual Report, 1982 ALRC 22 Privacy, 1983 ALRC 23 Annual Report, 1983 ALRC 24 Foreign State Immunity, 1984

Working Papers WP 1 Complaints Against Police, 1975 WP 2 Alcohol, Dmgs and Driving, 1976 WP 3 Consumers in Debt, 1976 WP 4 Defamation, 1976 WP 5 Human Tissue Transplants, 1977 WP 6 Complaints Against Police (Supplementary Report), 1977

WP 7 Access to Courts — I Standing: Public Interest Suits, 1977 WP 8 Lands Acquisition Law: Reform Proposals, 1977

Issues Papers IP 1 Statutory Brain Death, 1977 IP 2 Insurance Contracts, 1977

IP 3 Evidence, 1980 IP 4 Reform of Contempt Law, 1984 IP 5 Service and Execution of Process, 1984

Discussion Papers DP 1 Defamation — Options for Reform, 1977 DP 2 Privacy and Publication — Proposals for Protection, 1977 DP 3 Defamation and Publication Privacy — a Draft Uniform Bill, 1977 DP 4 Access to the Courts — I Standing: Public Interest Suits, 1978 DP 5 Lands Acquisition Law: Reform Proposals, 1978 DP 6 Debt Recovery and Insolvency. 1978 DP 7 Insurance Contracts, 1978 DP 8 Privacy and the Census, 1979 DP 9 Child Welfare — Children in Trouble, 1979 DP 10 Sentencing: Reform Options, 1979 DP 11 Access to the Courts — II Class Actions, 1979 DP 12 Child Welfare: Child Abuse and Day Care, 1980 DP 13 Privacy and Intrusions, 1980 DP 14 Privacy and Personal Information, 1980 DP 15 Sentencing of Federal Offenders, 1980 DP 16 Reform of Evidence Law, 1980 DP 17 Aboriginal Customary Law — Recognition? 1980 DP 18 Aboriginal Customary Law — Marriage, Children and the Distribution of Property ,1982 DP 19 Foreign State Immunity, 1983 DP 20 Aboriginal Customary Law — The Criminal Law, Evidence and Procedure, 1984

Periodicals Reform (Quarterly)

Reference Work The Law Reform Digest, 1983

The Law Reform

Commission

Report No 25

Annual Report

1984

Australian Government Publishing Service Canberra 1985

The Law Reform Commission is established by section 5 of the Law Reform Commission Act 1973 as a permanent law reform agency of the Commonwealth and its Territories. The Chairman and first Members were appointed in 1975. Section 6 of the Law Reform Commission Act 1973 sets out the functions of the Commission:

(1) The functions of the Commission are, in pursuance of references to the Commission made by the Attorney-General, whether at the suggestion of the Commission or otherwise-fa) to review laws to which this Act applies with a view to the systematic development and reform of the law, including in particular —

(i) the modernization of the law by bringing it into accord with current conditions; (ii) the elimination of defects in the law; (iii) the simplification of the law; and (iv) the adoption of new or more effective methods for the administration of the law

and the dispensation of justice; (b) to consider proposals for the making of laws to which this Act applies; (c) to consider proposals relating to — (i) the consolidation of laws to which this Act applies; or

(ii) the repeal of laws to which this Act applies that are obsolete or unnecessary; and (d) to consider proposals for uniformity between laws of the Territories and laws of the States, and to make reports to the Attorney-General arising out of any such review or consideration and, in such reports, to make such recommendations as the Commission thinks fit.

The offices of the Commission are at 99 Elizabeth Street, Sydney, NSW, Australia (Tel (02) 231 1733) and at the Royal Insurance Building, London Circuit, Canberra City, ACT, Australia (Tel (062) 47 2166). For further information about the Commission and its work, please contact: Mr IG Cunliffe, Secretary and Director of Research at the Sydney address.

Commission Reference: ALRC 25

© Commonwealth of Australia 1984 ISSN 0312-6994

Printed by Canberra Publishing & Printing Co., Fyshwick, A.C.T.

The Hon Lionel Bowen, MP Attorney-General Parliament House Canberra, ACT 2600

Dear Attorney-General, In accordance with s 35 of the Law Reform Commission Act 1973 we have the honour to present the tenth Annual Report of the Law Reform Commission. The report relates to the period of the Commission’s work from 1 July 1983 to 30 June 1984.

MD Kirby (Chairman) MH Byers JR Crawford M Chesterman

GE Fitzgerald AD Hambly RA Hayes D St L Kelly

JMH Maxwell JA Mazza FM Neasey MC Pryles DM Ryan T Simos TH Smith AE-S Tay

The Commission

Commissioners of Law Reform — Full Time

The Hon Justice MD Kirby, CMG, BA, LL Μ, B Ec (Syd) Chairman of the Law Reform Commission Judge of the Federal Court of Australia Member of the Administrative Review Council

Member of the Australian Institute of Multicultural Affairs Member of the Australian National Commission for UNESCO Professor M Chesterman BA, LLB (Syd), LLM (Lond) Barrister-at-Law, Lincolns Inn, London

Solicitor of the Supreme Court of New South Wales Professor of Law, The University of New South Wales Professor JR Crawford, D Phil (Oxon), BA, LL B (Adel) (until 3 June 1984) Barrister and Solicitor of the High Court of Australia

Professor of Law, The University of Adelaide (Appointed a Part-time Member on 27 June 1984) Professor AD Hambly, LL B (Melb), LL M (Harv) Barrister and Solicitor of the Supreme Court of Victoria and of the Supreme Court of the

Australian Capital Territory Professor of Law, The Australian National University Member of the Family Law Council Member of the Parole Board of the Australian Capital Territory

Commissioners of Law Reform — Part-time

Sir Maurice Byers, CBE, QC Chairman of New South Wales Police Board Barrister of the Supreme Court of New South Wales The Hon Mr Justice GE Fitzgerald, LL B (Qld) Judge of the Federal Court of Australia

Deputy President of the Administrative Appeals Tribunal Associate Professor Robert Hayes, Ph D (Monash), LL B (Melb) Barrister of the Supreme Court of New South Wales Associate Professor of Law, University of New South Wales

Professor D St L Kelly, BCL (Oxon), BA, LLB, Secretary, Law Department of Victoria

The Hon Justice JMH Maxwell Judge of the Family Court of Australia Mr JA Mazza, LL B (WA) Barrister and Solicitor of the Supreme Court of Western Australia.

The Hon Mr Justice FM Neasey, LL B (Tas) Judge of the Supreme Court of Tasmania Dr MC Pryles, LL B (Melb), LL M, SJD (SMU), LL D (Melb), Acting Professor of Law, Monash University

Barrister of the Supreme Court of Victoria

vi / The Commission

Mr DM Ryan, QC, BA, LL B (Hon)(Melb) Barrister of the Supreme Court of Victoria Mr T Simos, QC, M Litt (Oxon), LL M (Harv), BA, LL B (Syd) Barrister of the Supreme Court of New South Wales Mr TH Smith, BA, LL B (Melb) Barrister of the Supreme Court of Victoria Professor AE-S Tay, Ph D (ANU) Head of the Department of Jurisprudence, The University of Sydney Barrister of Lincoln’s Inn and of the Supreme Court of New South Wales, Barrister and Solicitor of the Supreme Court of the Australian Capital Territory

Officers of the Commission

Secretary and Director of Research

IG Cunliffe, BA, LL B (ANU)

Legislative Draftsman

Stephen Mason, BA, LL B, MTCP (Syd)

The Commission wishes to acknowledge the assistance provided by Mr JQ Ewens, CMC, CBE, QC, LL B (Adel) formerly First Parliamentary Counsel of the Commonwealth of Australia and a past Member of the Commission, in settling draft legislation attached to the Commission’s reports.

Research Staff

Damien Cremean, LLB (Melb), PhD (Monash) Barrister of the Supreme Court of Victoria (to 31 December 1983) Mary Fisher, LL B (Adel) Senior Law Reform Officer Ian R Freckelton, BA, LL B (Syd) Senior Law Reform Officer Peter Hennessy, LL B (WA) BEc (ANU) Senior Law Reform Officer Stephen Odgers, BA, LL B (ANU) Senior Law Reform Officer Loretta Re, BA, LL M, Dip Ed (Melb) Senior Law Reform Officer John Schwartzkoff, BA, LL B (Syd), MA (Sussex) Senior Law Reform Officer (from September 1983) Deena Shiff, B Sc (Econ) (Lond Sch Econ), BA (Law) (Camb), Law Reform Officer William J Tearle, LL B (Syd) Senior Law Reform Officer

The Commission / vii

Peter Waters, BA, LL B (ANU) Law Reform Officer Antony D Young, BA, LL B (NSW) Senior Law Reform Officer (from October 1982)

Stephen Curran, BA (Macq), LL B (NSW), Grad Dip Int Law (ANU) Senior Law Reform Officer, (Associate to the Chairman to January 1984) Richard Phillipps, BA (Griff), LL B (NSW) Associate to the Chairman (from February 1984) Virginia Pursell, BA (NSW), Dip Lib (CCAE) Librarian

Principal Executive Officer

Barry Hunt, BA (Syd)

Administrative Officer

Maria T Mitchell, BA (Communications) (NSWIT)

Personnel and Office Services

Bruce Tidswell, (from March 1984)

Administrative and Secretarial Staff

Anna Aversa Jennifer Clark * Sue Collins (from September 1983) Di Ekin

Rae Hay Anna Hayduk * Barbara Jackson (from October 1983) Maria McDonald

Maria Raid Janelle Roberts Gail M Symes

Jacki Thomas (from October 1983)

Executive Development Scheme

Valerio Manera, B Comm (NSW) Auditor’s General Office (From May 1984)

* Part-time staff

viii / The Commission

On Exchange from Office of Parliamentary Counsel

Vince Robinson BA, LLB (ANU) (6 June to 31 August 1984)

Community Employment Program

Jenny Fitzgerald BEc (ANU), LLB (Qld) Kerry Nicol Susan Wilson

Special Youth Employment Training Scheme

Nicholas Psyhogios (Jan — May 1984) John Williamson (May — June 1984)

Temporary Research Staff

Peter Driessen BA, LLB (Macquarie) (June 1984) Alexis Hailstones B Juris, LLB (NSW) (June 1984) Barbara Hocking * BA, LLB, (Monash) LLM (Lond) (Feb — May 1984) Gillian Osborne * B Juris, LLB (NSW) (Nov 1983 — May 1984) Jan Steinle BA, LLB (ANU) (September 1983 — June 1984)

On Secondment

Max Keogh, LLB (NSW) (April — June 1984) Australian Film Commission

Community Law Reform Program

The Commission wishes to thank Mr Nicholas Seddon LLB (Melb), B Phil (Oxon) who is devoting his study leave from the Australian National University to work on the Australian Capital Territory Community Law Reform Reference. Mr Seddon is a senior lecturer in law. The period of his study leave is 1 March — 31 October 1984.

* Part-time staff

Contents

Para Page

The Commission V

Summary xii

1. The First Decade, Empiricism and Law Reform 1

Ten Years After 1 1

Empirical Research 4 2

Reform for its Own Sake 22 7

Migrant Issues 28 8

2. The Law Reform Commission of Australia 9

Functions of the Commission 29 9

Canberra Office 30 9

Composition of the Commission 31 9

Reappointments 32 10

Professor James Crawford 32 10

Associate Professor Hayes 33 10

Mr TH Smith 34 10

Prof D St L Kelly 35 10

New Appointments 36 10

Sir Maurice Byers 36 10

The Hon Justice JM Maxwell 37 10

Mr Donnell Ryan 38 10

Meetings of the Commission 39 11

Divisions of the Commission 40 12

Appointments of Past and Present Members 41 13

Remuneration 42 13

Staff Levels 43 14

Consultants 44 14

Commission Publications 47 19

Clearing House Functions for Australia 49 21

Reform 50 22

The Law Reform Digest 51 22

Law Reform Suggestions 52 22

Freedom of Information 53 22

Public Consultation 54 23

Visits 56 23

Appreciation 57 23

3. Completed Projects 24

Completed Projects 58 24

Completed References and Annual Reports 58 24

Complaints Against Police (ALRC 1 and 9) 59 28

Criminal Investigation (ALRC 2) 60 28

Alcohol Drugs and Driving (ALRC 4) 61 28

Insolvency : The Regular Payment of Debts (ALRC 6) 62 28

Human Tissue Transplants (ALRC 7) 69 29

Unfair Publication (ALRC 11) 70 30

Privacy and the Census (ALRC 12) 71 30

x / Contents

Lands Acquisition and Compensation (ALRC 14) 72 30

Sentencing of Federal Offenders (ALRC 15) 73 31

Prosecution Guidelines 74 31

Sentencing Council 75 32

Insurance Agents and Brokers (ALRC 16) 76 32

Child Welfare (ALRC 18) 77 32

Insurance Contracts (ALRC 20) 78 32

Privacy (ALRC 22) 80 33

Foreign State Immunity (ALRC 24) 83 33

Background to Report 83 33

A Changing Area of Law 84 34

Underlying Principles 85 34

Recommended Legislation 86 34

4. Current Projects 36

Current Projects 87 36

Current References 87 36

Debt Recovery and Insolvency (Insolvency Stage II) 88 37

Access to the Courts 91 38

Standing 92 38

Class Actions 93 39

Aboriginal Customary Law 94 39

Further Work 94 39

Consultation 95 39

Research and Discussion Papers 96 39

Completion of the Reference 98 40

Evidence 99 40

Sentencing (Stage II) 101 41

Admiralty Jurisdiction 102 42

Further Research 103 42

Service and Execution of Process 104 42

Research Program 104 42

The Future 105 43

Contempt 106 43

Nature of Reference 106 43

Issues Paper 107 44

Work in Progress 108 44

Future Activities 109 44

Matrimonial Property 110 45

Research Program 112 45

Empirical Research 114 45

General Insolvency Inquiry 116 46

Domestic Violence 119 46

Community Law Reform Project 124 47

ACT Consultative Committee on Criminal Law Reform 130 48

Canberra Office 132 49

Auditor General’s Report 50

Financial Statements 52

Organisation Charts 60

Contents / xi

Appendix A: Law Reform Suggestions Appendix B: Terms of Reference Index

61 67 80

Summary

The Commission is currently working on a busy program of major inquiries of considerable significance to the Australian community:

• Matrimonial Property; • Contempt; • Admiralty Jurisdiction; • Service and Execution of Process; • Evidence; • Sentencing Reform; • Aboriginal Customary Laws; • Access to the Courts: Standing and Class Actions; • Consumers in Debt; • Insolvency; • Community Law Reform.

During 1983/84 the Commission completed a report on Foreign State Immunity (ALRC24) (See para 83-86). A description of all the reports the Commission has completed, and their implementation is contained in Chapter 3.

The Commission is soon to reach its tenth anniversary. In Chapter 1 of this report the Commission’s work during its first decade is reviewed. The first chapter also discusses the Commission’s approach to empirical work.

1. The First

Decade,

Empiricism and Law Reform

Ten Years After

1. 1984 marks the end of an era for the Law Reform Commission. It commenced operation in February 1975 with the appointment of Justice MD Kirby as its Chairman. 1984 sees the close of the years of Justice Kirby’s Chairmanship. The decade has seen the Commission develop from a bold experiment to a robust and well-known institution with an established record.

2. Work done by the Commission, or in progress, covers very many important areas of law including:

• police powers in the investigation of crime, and protections to citizens; • mechanisms for the investigation of complaints against police; • the laws of evidence; • the whole question of punishment of offenders; • the particular area of the breathalyser, and alcohol, drugs and driving; • the entire area of child welfare; • human tissue transplants, including the definition of death, and the regime which should

govern the taking of body parts and of blood; • the global question of protection of privacy, against intrusions — by government, police and law enforcement officers, and so on and in relation to the collection, use and dissemination of personal information by both public and private sector record keepers; • privacy implications of the census; • defamation;

• the entire issue of insolvency, both corporate and personal; • the powers of the Federal Government to resume and acquire land, including the rules which should govern compensation, and rights of appeal etc; • the whole question of insurance, including the rules which should govern the conduct of

insurance agents and brokers; • contempt of courts and tribunals; • whether and how Australian law should accommodate and recognise Aboriginal Customary

Laws; • the respective rights of married people over property both during marriage and on its dissolution, including their rights vis a vis creditors and others; • the law’s response to the problem of domestic violence;

• Australian admiralty jurisdiction, which covers some technical aspects of resolving shipping claims; • foreign state immunity, about the immunity which foreign governments and their agencies should have from being sued in Australian courts;

• the extent to which Australia should be a single jurisdiction for the purposes of pursuing civil claims, summoning witnesses, and extraditing alleged criminals; • a general Australian Capital Territory reference on community law reform. Under this reference, the commission receives suggestions for law reform on any topic in Canberra.

The Commission has presented 14 substantive reports so far. Of these, eight have been substantially adopted by government. Of the outstanding six, four are the subject of government commitments (Criminal Investigation (ALRC2), Insolvency: The Regular Payment of Debts (ALRC6) Lands Acquisition and Compensation (ALRC14) and Child Welfare (ALRC18)). The

2 / The Law Reform Commission

Government has not yet given a response to the most recent reports, Privacy (ALRC22), and Foreign State Immunity (ALRC24).

3. Probably the most notable achievement of the past 10 years in law reform is, however, not any particular report or law, but the institutional mechanisms themselves. Institutional law reform is a comparatively recent innovation.1 The need for a body or bodies whose routine function it is to update the law is governing well the pace of change — including notably technological and sociological change. In some areas of the law — notably those covered by the Commission’s references on Criminal Investigation, Sentencing, Evidence and Privacy — the Commission has found itself making connections between new references and old. But it would be naive to think that even those areas of the law are now ‘reformed’ and can be removed from the law reform agenda for all time. Law reform is an exercise greatly influenced by its environment. The environment is dynamic, and the point will be reached where it is time to look again, and to reform

further. As well as the factors of change mentioned above, there are two more which should be acknowledged. They are related: First, laws and proposals for their reform are the product of ideas. Ideas and thinking evolve; secondly, experience teaches. It may show up shortcomings in an approach, and problems in an area which were fashionable might be found wanting in practice. The dynamic interplay of these factors is such that it should never be thought that any law reform commission report is the last word on the subject. Nevertheless it is important that the process of

updating and revamping goes on. Even the occasional wrong turn would be preferable to a stationary, decaying body of law.

Empirical Research

4. ‘Empiricism’ and ‘empirical’ are terms with a shady past. They derive from a Greek word referring to medical practices which were based solely on observation, uninformed by theory or principle — ‘quackery’, says the Shorter Oxford. In modem usage, however, empirical research is quite respectable: it is simply work that seeks to establish facts by reference to experience, observation or experiment. Today theory and empirical research are seen not in opposition to each other but rather as complementary. One of the functions of theory is to suggest hypotheses which can be examined in the light of observed facts; to the extent that the observed facts are not consistent with the relevant hypothesis, consideration is given to modifying or replacing the theory.

5. In a law reform context the label ‘empirical research’ is usually applied to fact-finding work that goes outside the areas of specifically legal skills and learning. Given the subject areas in which law reformers most commonly work, it is usually the empirical techniques of the social sciences which are most relevant. Further, in the areas of social policy that are likely to be important to law reformers, the ‘facts’ on which empirical research is asked to shed light will often be matters of belief rather than perception, matters that might be classified as ‘subjective’ rather than ‘objective’ data.

6. Empirical research in the social sciences may take many different forms. Sometimes the researcher’s approach is of a quantitative kind — that is, of a kind which seeks to deal with the subject matter in a numerical way, to measure certain things as accurately as possible. There are many situations, however, where a qualitative approach is more appropriate or useful. Often the researcher’s task in a given case is to combine qualitative and quantitative data in a sound and informative fashion. A range of specific research techniques is available.

1. See ALRC 3, Annual Report 1975.

The First Decade. Empiricism and Law Reform I 3

7. The possibilities include participant observation; detailed discussions or interviews with selected groups or categories of people; case studies of selected events or situations; systematic measurement of one kind or another (for example, of pre-hearing delays in a series of courts); deriving relevant statistics from existing collections of data (such as those maintained by the Australian Bureau of Statistics); using questionnaires to obtain novel information on particular topics.

8. The Law Reform Commission has long been conscious of the fact that many of its references raise issues which can be illuminated by appropriate empirical research. Indeed, it is difficult to think of any reference which the Commission has had, or is likely to have, which has no aspects that lend themselves to such research. References where the Commission’s program has included significant amounts of empirical work of very different kinds, include Sentencing, Insolvency and Debts, and Aboriginal Customary Laws. In the Sentencing reference, surveys of various kinds (including a questionnaire addressed to judges and magistrates throughout Australia) were carried out to document relevant facts and opinions. Both Insolvency and Debts have involved extensive survey work based on court records and returns. Aboriginal Customary Laws has involved a lengthy and carefully documented program of discussions and interviews in the field. (It will be clear from this last example that in many situations it is difficult to draw any firm line between

‘empirical research’ and ‘consultation’. We return to this point below.)

9. In 1983-84 the Commission’s program has included more empirical research than ever before. This emphasis reflects in part the nature of certain references currently before the Commission, and in part the continued growth of awareness amongst lawyers and law reformers of the important

contributions that disciplines outside the law have to make. In the year past the Commission has been able to strengthen its ability to conduct empirical work of the survey variety, and to locate and analyse statistical information held by bodies like the Australian Bureau of Statistics, by the appointment to its staff of Mr John Schwartzkoff, a lawyer who also has both academic training

and practical experience in these fields. The Commission has also been fortunate in obtaining the services of three women under the Commonwealth Employment Program. They are conducting interviews in relation to contempt and assisting with machinery aspects of the conduct of the survey work in that reference as well as matrimonial property.

10. It is important also to avoid the temptation to treat empirical research as a ritual to be gone through in a similar way in each case. The empirical work that is appropriate or necessary will vary considerably from one reference to another. It is a matter of horses for courses — of identifying, for each reference, those issues which may need to be framed and addressed from standpoints other

than those of legal principle. By way of broad generalisation we might say that significant empirical research is most likely to be called for when a reference involves large or controversial areas of public policy, or where part of the subject matter is quite novel or for some other reason poorly documented. 1 1

11. Aspects of the choices the Commission faces in relation to empirical work are illustrated by the Contempt and Matrimonial Property references, in both of which substantial amounts of empirical work are being undertaken. In the case of Contempt, little was known at the outset about the experience of the mass media with the operation of the sub judice mle about Family Court

contempt, and to a lesser extent other areas of contempt. Since there was little previous work to rely on, and since the issues raised seemed likely to be many and varied, the most appropriate approach was thought to be a program of ‘in depth’ interviews with a range of informants who between them could be expected to shed light on most aspects of the topic. Discussions were

scheduled with people working in the media, with lawyers knowledgable in this field, and with various other groups or individuals thought likely to have relevant information or opinions to express (for example, civil liberties groups, and private individuals whose court cases had been

4 / The Law Reform Commission

subjected to considerable pre-trial publicity). So far as the media were concerned, it was recognised that rather different situations might well arise in the capital cities and in country areas, and also that the experience of the print media and the electronic media might be rather different. The range of interviews was designed, among other things, to give adequate coverage to these criteria. The work program for Contempt also involves short studies of several court cases of recent years which have raised sub judice issues in a clear way. These case studies are designed to spell out in some detail, and in various situations, the practical effects of the present law. Needless to say, work of this sort does not produce information of a purely statistical kind. What it does is to provide a rich store of information both on the operation of the present law, and on the likely implications of various alternatives that might be considered by the Commission. It also serves to document the existing climate of ideas and opinion within groups which in due course are likely to be important commentators on the Commission’s Discussion Papers and Final Report; again the links between empirical research and consultation are clear although the line between them is blurred.

12. The thread that holds together the various branches of contempt law is the notion that the law must act to prevent or punish conduct which interferes to a significant extent with the due administration of justice. As with the Sentencing reference, the views and experience of judges and magistrates are thus of particular relevance and interest. In the case of judges and magistrates, the use of a formal questionnaire seemed both feasible and appropriate. After considerable discussion, the Commission determined that it would be sensible to administer somewhat different questionnaires to judges, to magistrates, and to members of tribunals and standing commissions.

Because of the special character and importance of contempt within the family law area, a further supplementary questionnaire was prepared for judges of the Family Court of Australia and the Family Court of Western Australia. This series of surveys is in progress as the present Report goes to press.

13. In the case of Matrimonial Property, it seemed to the Commission that there was no realistic way of approaching the reference at all without undertaking a substantial program of empirical work. There was no systematic information available on the way the present discretionary system works in terms of the division of assets between husband and wife or on the ways in which divorcing couples have gone about organising their property affairs since the passage of the Family Law Act in 1975. To theorise about possible changes to the system would have made little sense in the absence of such basic information. It might also be said that in a reference of this kind one of the roles of the social sciences is to set the law in a wider social context and to clarify what can and cannot realistically be achieved by legal change.

14. Records kept by the Family Court of Australia suggest that some 30% of all divorcing couples settle their property affairs through use of the procedures offered by the court. Of these, only a small proportion of couples proceed to a fully contested hearing. Of the remainder, most reach a binding agreement under section 87 of the Family Law Act, either before or after having taken part in what is known as a Regulation 96 conference with a Registrar of the court. In order to obtain an adequate picture of the cases and the parties passing through the court, it has been necessary for the Commission to undertake a comprehensive survey of contested hearings over a period of some months, together with sample surveys, over shorter periods, of Regulation 96 conferences and of agreements submitted to the court under s 87. Merely seeking information from the court files — even if the court had found this compatible with its obligations of confidentiality to its clients — would not have provided sufficiently detailed information for the Commission’s purposes. Accordingly, the Commission needed to seek the active co-operation of judges and Registrars of the court in completing questionnaire schedules for all the cases to be included in the

various surveys. This has represented a very large contribution of time and effort by the court, for which the Commission is most grateful.

The First Decade, Empiricism and Law Reform / 5

15. Because so many divorcing couples do not use the formal procedures set up under the Family Law Act for the disposition of property, still further work was required. It was necessary to try to obtain information about the assets of divorcing couples in general, about the way these were disposed of after separation, and whether existing practice created problems or inequities for particular sections of the divorcing population. Existing data collections, such as those maintained by the Australian Bureau of Statistics and the Department of Social Security, shed some light on issues such as these: work has been and will continue to be done on data obtained from these sources. However, what was really required was a large, special-purpose survey of recently divorced people. This was bound to prove a time-consuming and expensive process, and was in

fact beyond the resources of the Commission acting alone. However, in this instance the Commission was fortunate in obtaining the co-operation not only of the Family Court but also of the Institute of Family Studies. Primary responsibility for the conduct of this work lies with the

IFS, which is also funding the project at an estimated cost of $150 000. It will be one of the most elaborate pieces of empirical research yet undertaken in the context of law reform in Australia and probably the most detailed survey anywhere of these particular issues. Nearly complete at the time of preparation of this Report, the field work will have involved lengthy questionnaire interviews

with a total of some 800 recently divorced men and women throughout Victoria. Apart from its role in filling in some major knowledge gaps which would otherwise limit the Commission in its work on the Matrimonial Property reference, this wide-ranging survey will provide a bank of information which will be of great value and interest to other researchers and policy-makers, both

in Australia and overseas.

16. As the preceding paragraph implies, empirical research which might seem to be called for in a given case may nevertheless be difficult, expensive and time-consuming. Sometimes it may be impossible to obtain data in sufficient time for use in the Commission’s work on a particular reference. Sometimes the advice will be that it is impossible to supply information in the form or

with the degree of certainty that is asked (such problems may or may not be solved by redefining issues or by approaching the subject form a different direction). Sometimes costs may simply be prohibitive. None of these, of course, is a reason for ignoring the scope or need for empirical work, but such issues underline the need to make informed decisions in each case as to what is feasible and desirable. At the other end of the scale lie the risks of overlooking relevant information that is readily available, or of re-inventing the wheel as a result of unfamiliarity with work done in other fields.

17. Questions also arise as to who is to do the work. Time and cost issues aside, a law reform body may lack the skills and experience that are required for a particular piece of research. Possible options include co-operative efforts with other Government or private bodies, the use of paid consultants, and various combinations of the two. Sharing or contracting out research work may have manifest benefits in particular cases, but of course it also entails costs, particularly in terms of reduced control. The effective use of paid consultants is a delicate art, particularly in situations

where both parties to the arrangement are unfamiliar with aspects of the subject matter, and with each other. The scope for misunderstanding and mistaken assumptions is great. If the outside consultant is a commercial contractor, the question of what can be done for the available money will always loom large; where the consultant is an academic, disagreements readily arise about the

scope of the work, priorities and timing. Where work is undertaken jointly with other organisations it cannot, of course, be assumed that the legitimate self-interests of each will neatly correspond. Difficulties of these kinds, familiar in all areas of policy-making, are likely to be even more troublesome than usual when, as is certainly the case in a legal context, the client inhabits a specialist world whose language, customs and modes of thought are far removed from everyday experience.

6 / The Law Reform Commission

18. The use of consultants and ways of avoiding the pitfalls was discussed in March 1984 at a seminar between the Federal Commission and the NSW Law Reform Commission. The NSW Commission has been a pioneer amongst law reform agencies in the use of consultants in empirical work. Another warning note was sounded at that seminar by Mr Julian Disney of the NSWLRC: one can never have all the empirical information which theoretically could be collected about the likely impact of options. The demand for more information can become a crutch for congenital procrastination and a shield for the opponents of reform.

19. There is no one solution to these problems. No small organisation can carry in-house all the expertise it will need in all situations, and few individuals have highly developed skills across a range of disciplines. Attempting to turn sociologists into instant lawyers or lawyers into instant sociologists is unlikely to be rewarding. Nevertheless there are great gains to be made as workers from various backgrounds become more familiar with the language and the techniques, the strengths and the limitations of other disciplines. Lawyers working in law reform must at least become informed consumers of the work of people in other relevant areas of knowledge.

20. It should also be said that recognising the proper role of empirical research within the work of the Law Reform Commission raises issues about non-lawyer involvement in law reform. Once the empiricist’s potential contribution is recognised in a given case it is difficult, and in any case inappropriate, to try to confine him or her simply to answering the lawyer’s ready-made questions. Assumptions lying behind the questions, and assumptions about the status of the ‘facts’ being sought, may well be challenged. In any but the simplest cases, the social scientist whose assistance is sought will bring to the situation not only technical skills, but also a non-lawyer’s perceptions of relevance and priorities. Quite new lines of thought may be suggested. Given that the Commission’s work is always to a greater or lesser extent concerned with matters of social policy, all this is only to be expected. These days few lawyers would claim any monopoly of wisdom or insight on needs and possibilities for change in the law or the legal system. The Commission’s recognition that law reform requires an inter-disciplinary approach has long been evident in its practice of appointing, for each reference, consultants from a wide range of backgrounds. The time is not far off when people whose main skills are in non-legal areas will be regularly appointed as members or staff-members of this and other law reform bodies.

21. With such developments, the distinction between research and consultation — already hard to draw with any precision — will become still more blurred. Again this is as it should be. In other areas — for example, the planning and building of the physical environment — specialists in Australia and overseas have in recent years recognised that lay people, consumers, generalists and/or professionals from other disciplines, have a series of inter-related roles to play. To begin with, it is often the consumer of goods and services who has the most telling view of existing problems and of opportunities for change. Further, outsiders to specialist areas of learning frequently offer new ideas and perceptions simply because their approach is not limited by professional prejudices or preconceptions; they are thus a force for intellectual honesty. Third, outsiders and non-specialists need to be included in the planning process so that professional decision making does not take place in isolation from the climate of public and political opinion in which schemes or recommendations must ultimately survive. These understandings make it impossible to preserve any sharp distinctions between fact-finding and community involvement. The Law Reform Commission has never taken the view that law reform was a matter for lawyers alone, or that recommendations on law reform ought to be developed remote either from representatives of other disciplines, or from the general public. The growing recognition of the

significance of empirical research and the role of the social sciences, however, throws these issues into yet sharper focus.

The First Decade. Empiricism and Law Reform / 7

Reform for its own sake?

22. The Commission is occasionally accused of being unduly predisposed to recommending reform, and of favouring reform for its own sake. It is not a criticism the Commission believes is true. Reform is recommended only where the Commission believes reform is called for. It is true that in each of its substantive reports to date the Commission has recommended reform. In some cases the recommended reforms could properly be described as major. In other cases they have been more marginal. It would be surprising if the Commission reported on a major area of the law and did not recommend reforms. It would be sanguine to suggest that there are major areas of the law in which no improvement could be made. Further, it seems a fair assumption, as references are given to the Commission by Federal Attomeys-General and not generated by the Commission

itself, that when areas of the law are selected as appropriate for the Commission to review, an important criterion is often that there is perceived inadequacy in that area of the law.

23. Empirical work done by the Commission is often useful in identifying whether reform is needed or not, and the form it should take.

24. Sometimes empirical work is the only means of obtaining reliable evidence of the operation of the existing law and its effects on individuals and society. Matrimonial Property is an example. The findings of the empirical research undertaken for that reference might support the arguments of

those who favour the substantial retention of the present law, or indicate the need for change and the appropriate direction and extent of change.

25. An unusual example of empirical work undertaken in the Insurance Reference, was an analysis of the exclusion clauses in the various insurance contracts. The width and variety of these led the Commission to recommend introduction of a novel reform: standard cover.2 Enactment of the Insurance Contracts Act 1984 and the Insurance (Agents and Brokers) Act 1984 was one of the most notable achievements of the year past. This legislation substantially implements the Commission’s Report (ALRC 20): Insurance Contracts and Insurance Agents and Brokers (ALRC 16) respectively.

26. During the parliamentary debate on the Insurance Contracts Bill it was said that the Law Reform Commission did not come up with any statistics which established the need for reform.3

27. In its Insurance Reference the Commission assembled a large, representative and conscientious team of honourary consultants to assist it to secure a balanced view. Not only were there representatives from all major branches of the insurance industry, with unparalleled aggregation of experience in the actual operation of insurance in modem Australia, there were also

representatives of public agencies concerned with insurance — the Insurance Commissioner, the Life Insurance Commissioner, Treasury, the Trade Practices Commission and the Queesland Insurance Commissioner. In addition the Commission had consultants able to put forward the viewpoint of insurance consumers. Tentative views were stated in a Discussion Paper, Insurance

Contracts (ALRC DP 7). This paper was given wide publicity throughout the industry and, by way of the public media, throughout the country. It was followed by a series of public hearings and seminars organised by Australian Insurance Institutes in conjunction with the Commission. Community and industry viewpoints and all the issues raised by the paper were put to the Commission at these hearings and seminars and in written submissions. The Commission also had

the benefit of a published submission from the Australian Treasury. That submission was given the most careful consideration because of the important economic implications of changes in insurance

2. See ALRC 20, Insurance Contracts, para 81. That recommendation has been adopted in the Insurance Contracts Act 1984.

3. Commonwealth of Australia, Pari Deb (Sen) (7 May 1984) 1674.

8 / The Law Reform Commission

contracts law. Many of the proposals in the discussion paper were modified as a result of consideration of submissions from the Treasury and others. In developing its proposals the Commission had in mind the need to strike an appropriate balance between:

• the economic costs, including indirect costs, of reform of insurance law; and • the benefits — including indirect and intangible benefits, such as securing equity between insurers and insureds — that would be achieved by reform.

In balancing these, the Commission paid particular attention to the Report on the Australian Financial System (the Campbell Committee Report). The recommendations made in the Report were designed to be consistent with the approach advocated by the Campbell Committee. Many of the recommendations were designed to improve the operation of the insurance market by ensuring that necessary and adequate information was available to prospective insureds. Others were designed to provide a set of rules that were fairer in the context of modem insurance than the rules developed in an earlier and far different time.

Migrant Issues

28. The Law Reform Commission works on an agenda given to it by the Federal Government. Except in minor respects it does not set its own agenda. Issues affecting migrant groups have been touched on by the Commission in a number of its references to date. Notable examples are the right to an interpreter where a person is being questioned by law enforcement officials, and when appearing as a witness in court. The former aspect was dealt with in the Commission’s Report on Criminal Investigations (ALRC2). The latter is included in the Commission’s work on Evidence. A Research Paper has been published in the Evidence Reference which proposes that rights to an interpreter be widened. An Interim Report in the Evidence Reference is expected to be completed soon. The special problems of migrant offenders was an issue considered in the Commission’s Interim Report on Sentencing of Federal Offenders (ALRC 15) and in its Report Privacy and the Census the Commission addressed those problems encountered by persons not fluent in the English language when asked to complete census forms.4 It recommended the provision of interpreting facilities for persons in this category. An interest in migrant issues has been stimulated within the Commission. The Commission’s Chairman is a Member of the Australian Institute of Multicultural Affairs and has taken an interest in issues affecting migrants. A former Secretary of the Commission, Mr George Brouwer (now Secretary, Premier’s Department of Victoria) was Chairman of a Task Group on Migrants and the Law in 1979/80. This Task Group was instituted as part of the Government’s Ethnic Liaison Officer Scheme. It made a report covering all aspects of the legal problems faced by migrants. The Galbally Committee on Evaluation of Post Arrival Programs and Services to migrants which reported in 1982 recommended that the Law Reform Commission be given a reference to study the circumstances in which interpreters are used in Australian legal systems and to formulate principles which may provide a basis for Commonwealth legislation and a model for uniform practice throughout Australia.5 Both the previous Liberal/National Party Government and the present Labor Government have announced their acceptance of that recommendation. It is now a matter for Government actually to give a reference to the Commission.

4. ALRC 12, 49-53.

5. Council of the Australian Institute of Multicultural Affairs, Evaluation o f Post-Arrival Programs and Services, Melbourne, 1982, 333.

2. The Law Reform Commission of Australia

Functions of the Commission

29. The Commission is established under the Law Reform Commission Act 1973. Its functions are, in pursuance of references made to the Commission by the Attorney-General, whether at the suggestion of the Commission or otherwise:

• to review Commonwealth and Territory laws with a view to the systematic development and reform of the law, including, in particular -·· the modernisation of the law by bringing it into accord with current conditions; ·· the elimination of defects in the law; ·· the simplification of the law; and ·· the adoption of new or more effective methods for the administration of the law and the

dispensation of justice; • to consider proposals for the making of such laws; • to consider proposals relating to - ·· the consolidation of laws; or

■ · the repeal of Commonwealth and Territory laws that are obsolete or unnecessary; and • to consider proposals for uniformity between laws of the Territories and laws of the States.

It is required to make reports (including any recommendations it thinks fit) to the Attorney-General on such reviews or consideration. The Commission is required to perform its functions with a view to ensuring:

• that Commonwealth and Territory laws and proposals which it considers do not trespass unduly on personal rights and liberties and do not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions; and • that, as far as practicable, such laws and proposals are consistent with the Articles of the

International Covenant on Civil and Political Rights.

Canberra Office

30. The Commission has two offices. Its head office is in Sydney and it has a branch office in Canberra. The Sydney office was established in 1975. The Canberra office was opened in 1983. It is situated on the 6th floor, National Mutual Centre, Darwin Place, Canberra City. These premises

are too small and were occupied on a temporary basis. The Canberra office will be moved to the 2nd floor, Royal Insurance Building, London Circuit, Canberra City after renovations are completed, probably in February 1985. Professor David Hambly is the Commissioner in Charge of the Canberra office where work is carried out on the Reference on Matrimonial property and the

Reference on Community Law Reform in the Australian Capital Territory. There is a research staff of three. Mr Nick Seddon, a Senior Lecturer in Law at the Australian National University is devoting his study leave to working in the Canberra office on the Community Law Reform

Reference.

Composition of the Commission

31. On 30 June 1984 there were 15 members of the Commission, three of whom were full-time

10 / The Law Reform Commission

and 12 part-time. The following table sets out the composition of the Commission towards the close of the year under report.

Full-time Members Term Expires

The Honourable Justice MD Kirby CMG 3 February 1985

Professor M Chesterman 24 July 1986

Professor AD Hambly 13 June 1986

Part-time Members Sir Maurice Byers, CBE, QC 30 May 1987

Professor JR Crawford 3 June 1987

The Honourable Justice G Fitzgerald 30 June 1984

Associate Professor RA Hayes 30 May 1985

Professor D St L Kelly 30 June 1986

The Honourable Justice JM Maxwell 13 March 1987

Mr JA Mazza 22 August 1984

The Honourable Justice FM Neasey 19 October 1984

Dr MC Pryles 13 December 1985

Dr DM Ryan QC 11 April 1987

Mr T Simos QC 31 December 1986

Mr TH Smith 31 December 1986

Professor A E-S Tay 14 February 1987

Reappointments

32. Professor James Crawford returned to the University of Adelaide on 4 June 1984. His appointment as a full-time Member was due to expire on 31 December 1984. He has been re-appointed as a part-time Member of the Commission until 3 June 1987.

33. Associate Professor Robert Hayes whose appointment as a full-time Member expired on 16 March 1983 was reappointed a part-time Member on 31 May 1984. His appointment expires on 31 May 1985.

34. M r T.H. Smith whose appointment as a full-time Member expired on 31 December 1983, was appointed a part-time Member on 1 January 1984. His appointment expires on 31 December 1986.

35. Professor D. St.L. Kelly a full-time Member of the Commission from 1976 until 1980 and a part-time Member from 1980 until 1981 was re-appointed a part-time Member on 1 July 1983. His appointment expires on 30 June 1986.

New Appointments

36. Sir Maurice Byers was appointed a part-time Member of the Commission on 31 May 1984. Sir Maurice, former Solicitor General for the Commonwealth, is also Chairman of the New South Wales Police Board.

37. The Honourable Justice J.M. Maxwell was appointed a part-time Member of the Commission on 14 March 1984. She is a judge of the Family Court of Australia and is the second woman appointed to the Commission.

38. M r Donnell Michael Ryan was appointed a part-time Member of the Commission on 12

The Law Reform Commission o f Australia I I I

April 1984. Mr Ryan, a Melbourne Queen’s Counsel, was formerly a part-time Teaching Fellow in Law at Monash University and a part-time tutor at the Council of Legal Education.

Meetings of the Commission

39. Table 1 lists attendance at the meetings of the Commission held during 1983/84. The eligibility of Members to attend meetings of Divisions of the Commission depends on their membership of the relevant Division.

T a b le 1 M ee tin g s o f t h e F u ll C o m m issio n a n d D ivisions Meetings of the Full Commission = 4

Meetings of all Divisions = 41

Total Number of Meetings = 45

Full

Commission Meetings Attended

No of Division Meetings Eligible To Attend

Divisions Attended

Total

Meetings Attended

MD Kirby 4 41 29 33

M Byers — — — —

MR Chesterman 4 16 16 20

JR Crawford 4 12 12 16

GE Fitzgerald 1 17 3 4

AD Hambly 4 7 7 11

RA Hayes — 1 1 1

D St L Kelly 1 2 2 3

JMH Maxwell 1 1 1 2

JA Mazza 4 4 4 8

FM Neasey 3 19 18 21

MC Pryles 4 2 2 6

D Ryan — — — —

T Simos 3 23 22 25

TH Smith 4 24 23 27

AE-S Tay 2 10 10 12

12 / The Law Reform Commission

Divisions of the Commission

40. The following table sets out the composition of the Divisions of the Commission as at 30 June 1984 and their membership.

T a ble 2 C o m po sitio n o f D ivisions o f th e C o m m issio n

Aboriginal Customary Law Commissioner-in-Charge: Members:

Professor JR Crawford Chairman Professor M Chesterman Prof A E-S Tay

Access to the Courts (Standing) Commissioner-in-Charge: Members:

Chairman Professor M Chesterman Professor JR Crawford Mr JA Mazza Mr TH Smith

Accc.r.y to the Courts (Class Actions) Commissioner-in-Charge: Members:

Professor M Chesterman Chairman Professor JR Crawford Mr JA Mazza Mr TH Smith

Admiralty Commissioner in Charge Members:

Professor JR Crawford Chairman Mr Justice FM Neasey Dr MC Pryles Mr TH Smith

Debt Recovery and Insolvency Commissioner-in-Charge: Members:

Professor D St L Kelly Chairman Professor MC Chesterman Mr Justice GE Fitzgerald

Evidence Commissioner-in-Charge: Members:

Mr TH Smith Chairman Mr Justice GE Fitzgerald Mr Justice FM Neasey Mr T Simos. QC

Foreign State Immunity Commissioner in Charge Members:

Professor JR Crawford Chairman Mr Justice GE Fitzgerald Mr T Simos, QC

The Law Reform Commission of Australia / 13

Sentencing — Stage 2 Commissioner-in-Charge: Members:

Service and Execution of Process Commissioner in Charge Members:

Matrimonial Property Commissioner in Charge Members:

Contempt Commissioner in Charge Members:

ACT Community Law Reform Commissioner-in-Charge Members:

Chairman Mr JA Mazza

Dr MC Pryles Chairman Professor JR Crawford

Prof D St L Kelly Mr JA Mazza

Professor AD Hambly Chairman Professor M Chesterman Justice JM Maxwell

Professor AE-S Tay

Professor M Chesterman Chairman Justice JM Maxwell

Mr Justice FM Neasey Mr T Simos QC Professor A E-S Tay

Professor AD Hambly Chairman Professor M Chesterman

Domestic Violence Commissioner-in-Charge Professor AD Hambly

Chairman Professor M Chesterman Justice JM Maxwell

Appointments of Past and Present Members

41. Also during the past year Commissioners of the ALRC have been appointed as follows: Justice MD Kirby CMC, Member of the International Commission of Jurists (Geneva), January 1984. Justice MR Wilcox, Judge of the Federal Court of Australia, May 1984. Former full-time

Commissioner 1976-80. Associate Professor Gordon Hawkins, Member, Board of Management, Australian Institute of Criminology, April 1984. Former Foundation part-time Commissioner 1975-82. Professor David Kelly as Secretary of the Law Department of Victoria

Remuneration

42. The Remuneration Tribunal Review published in November 1983 reported that:

14 / The Law Reform Commission

• The Chairman’s salary, paid as the holder of Federal judicial office, should be increased to $74 575, together with $4500 allowance. • Full-time Members’ salaries should be increased to $58721. However, the allowance should remain at $1750. • Part-time Members’ fees should be increased to $5684 per annum plus $240 per day from

$5450 per annum plus $230 per day.

The Commission is concerned that the salary payable to full-time Members makes it difficult to attract high quality appointees, especially from private practice where similar restraints do not operate, and has stated this in its submissions to the Remuneration Tribunal. It has also argued that members’ salaries should at least be equal to the remuneration received by members of the National Companies and Securities Commission who receive approximately $ 11 000 per annum more than the members of this Commission. The Tribunal reported after the end of the year under review. It did not take up the Commission’s submission that member’s positions should in effect be re-classified.

Staff Levels

43. The Commission has before it thirteen references from the Attorney- General. Because of the low staff ceiling it has been obliged to defer work on the Sentencing Reference. The ceiling for 1983/84 is 28 full-time and two part-time. The 1982/83 ceiling was 18 full-time and two part-time employees.

Consultants

44. Section 23 of the Law Reform Commission Act 1973 provides that the Chairman may, with the approval of the Attorney-General, appoint consultants to the Commission. The following is a list of honorary consultants who have been appointed with the approval of the Attorney-General

and who have assisted the Commission in the year past:

Consumers in Debt — Stage II Mrs F Bancroft, Corporate Lawyer, Australian Finance Conference Mr EW Bartlett, Manager, Barcoll Credit Services Mr JK Chippindall, Solicitor, Sydney Mr Colin Dawson, General Manager, Credit, Waltons Limited Mr AJ Duggan, Senior Lecturer in Law, University of Melbourne Mr G Holmes, Principal Legal Officer, Attorney-General’s Department, Canberra Mr Peter Kay, Peter Kay and Associates Mr Bruce Kercher, Macquarie University Mr John O Llewellyn, Executive Director, Australian Finance Conference Mr M Lynch, Solicitor, Redfem Legal Centre, Sydney Mr Anthony P Moore, Senior Lecturer in Law, University of Adelaide Dr TC Puckett, Department of Social Work, La Trobe University Mr P Thompson, Senior Deputy Clerk, Court of Petty Sessions, Law Courts of the ACT Mr Peter Timmins, Chief Executive Officer, Australian Federation of Credit Union Leagues

Limited Dr CG Veljanovski, Centre for Socio-Legal Studies, Oxford University Mr Brian S Walker, Supervisor, Budgeting Advisory Service, SA Department for Community

Welfare

The Law Reform Commission of Australia / 15

The Hon Mr Justice JM White, Supreme Court of South Australia Mr John E Willis, Lecturer in Legal Studies, La Trobe University

Aboriginal Customary Law Dr D Bell, Anthropologist, Research School of Social Sciences, ANU Mr Jimmy Biendurry, Commissioner, Aboriginal Development Commission Emeritus Professor RM Bemdt, Department of Anthropology, The University of Western

Australia Mr R Chisholm, Law School, University of NSW Mr K Colbung, Deputy Chairman, Australian Institute for Aboriginal Studies Dr HC Coombs, Visiting Fellow, The Australian National University Ms Pam Ditton, Lawyer, Central Australian Aboriginal Legal Aid Service Father Patrick Dodson, Central Land Council, Alice Springs Mrs Molly Dyer, Aboriginal Advancement League, Victoria The Hon Sir William Forster, Chief Justice, Supreme Court of the Northern Territory

Mr GP Galvin, Chief Stipendiary Magistrate, Darwin Assistant Commissioner A Grant, Northern Territory Police Mrs Ruby Hammond, formerly Aboriginal Legal Rights Movement, South Australia Mr N Hayes, former Field Officer, Central Australian Aboriginal Legal Aid Service, Northern

Territory Rev S Wolmby, Uniting Church Minister, Aurukun Dr J Howard SM, Magistrate, Broome, WA Ms Marcia Langton, Education Officer, Australian Institute of Aboriginal Studies

Mr Tom Lewis, Aboriginal Actor, former President, Beswick Town Council Mr JPM Long, Commissioner for Community Relations, Canberra Mr Andrew Ligertwood, Law School, University of Adelaide Associate Professor Ken Maddock, School of Behavioural Sciences, Macquarie University Ms B Naparula, Tribal Elder, Tennant Creek, Northern Territory Mr J Nayinggul, Field Officer, Bureau of the Northern Land Council, Darwin Mr John Newfong, Department of Aboriginal Affairs, Darwin Dr SS Richardson, Principal, Canberra College of Advanced Education

Mr G Robinson, Premier’s Department, Victoria Miss D Ross, Past President CWA, Member Australian Press Council Hon Mr Justice KW Ryan, Supreme Court of Queensland Dr PG Sack, Fellow, Department of Law, Research School of Social Sciences, Australian

National University Dr J von Stunner, School of Social Sciences, University of New South Wales Studies Dr P Sutton, Consultant Anthropologist, Adelaide The Hon Mr Justice John Toohey, Judge of the Federal Court of Australia, Perth Supreme

Court of the Northern Territory, formerly Aboriginal Land Commissioner Mr NA Wareham, Attorney-General’s Department, Canbena Mr J Wauchope, Regional Director, Department of Aboriginal Affairs, Brisbane Dr N Williams, Anthropologist, Australian Institute of Aboriginal Studies

Mr HF Woltring, Attorney-General’s Department, Canberra

Access to the Courts Mr A Aho, formerly of Confederation of Australian Industry, now of Queensland Confedera­ tion of Industry Mr GD Allen, Australian Industries Development Association Mr AJ Boulton, Legal Officer, ACTU Mr A Cornell, Solicitor, Messrs Blake and Riggall

16 / The Law Reform Commission

Mr A Cullen, Federal Secretary, Australian Finance Conference Ltd Mr P Gallagher, President, Board of Fire Commissioners, NSW Mr AR Godfrey-Smith. the NSW Institute of Technology Mr J Greenwell, First Assistant Secretary, Attorney-General’s Department, Canberra Professor D Harland, Professor of Law, University of Sydney Mr F Hoffman, National President, Corporation of Insurance Brokers Mr P Holt, Commissioner for Consumer Affairs, NSW Mr AG Kerr, Deputy Commonwealth Ombudsman, Canberra The Hon Mr Justice Lockhart, Federal Court of Australia Mr A Moore, Senior Lecturer in Law, University of Adelaide Mr OD Sperling, Solicitor, Messrs Higgins, Morgan & Partners, Sydney Mr MG Vernon, Chairman, Consumer Affairs Council (ACT) Dr G De Q Walker, Reader in Law, Australian National University The Hon Justice Murray Wilcox, Federal Court of Australia Professor NJ Williams, Barrister, Melbourne The Hon Justice JRT Wood, Supreme Court of NSW Mr PW Young, QC, Barrister, Sydney

Sentencing Dr AA Bartholomew, Consultant Psychiatrist, Department of Health, Victoria Dr T Beed, Director, Sample Survey Research Centre, University of Sydney Mr P Cashman, Director, Public Interest Advocacy Centre, Sydney Mr W Clifford, formerly Director, Australian Institute of Criminology The Hon Xavier Connor, QC, formerly Judge of the Federal Court of Australia and Supreme

Court of ACT Mr LB Card, formerly Director, Department of Correctional Services, South Australia Mr AR Green, formerly of Prisoners' Action Group Dr GM McGrath, University of New England Mr JG Mackay, formerly Director, Probation and Parole Service, Attorney-General’s

Department, Hobart Mr W Nicholl, Stipendiary Magistrate, Australian Capital Territory Mr T Purcell, Director, the Law Foundation of New South Wales Mr F Rinaldi, Senior Lecturer in Law, Australian National University, Canberra The Hon Mr Justice Roden, Supreme Court of New South Wales and former Member of the

Australian Capital Territory Law Reform Commission Dr AJ Sutton, Director, NSW Bureau of Crime Statics and Research, Sydney Senior Superintendent W Williams, QPM, Australian Federal Police, Canberra

Evidence Mr KV Borick, Barrister, South Australia The Hon Sir Richard Eggleston, former Chancellor, Monash University, Melbourne The Hon Mr Justice HH Glass, Court of Appeal, NSW Mr C Hermes, Chief Magistrate, Court of Petty Sessions, Canberra Mr Dyson Hey don, Barrister, Sydney Mr DA Jessop, Attorney-General’s Department, Canberra Chief Superintendent J Kelly Australian Federal Police The Hon Trevor Martin, QC, formerly a Judge of the District Court, Sydney, and Member of

the New South Wales Law Reform Commission Mr D Meagher, QC, Barrister, Victoria The Hon Mr Justice PE Nygh, Family Court of Australia The Hon Mr Justice IF Sheppard, Federal Court of Australia

The Law Reform Commission of Australia I 17

Mr D Sturgess, Barrister, Brisbane Mr C Tapper, Reader in Law, Oxford University Dr D Thomson, Department of Psychology, Monash University, Melbourne Mr Frank Vincent, QC Barrister, Melbourne Mr P Waight, Senior Lecturer in Law, Australian National University Mr M Weinberg, Senior Lecturer in Law, University of Melbourne Service and Execution o f Process

Mr DL Bailey, Solicitor, Melbourne Mr MR Goode, Senior Lecturer in Law, University of Adelaide The Hon Justice PE Nygh, Family Court of Australia, Sydney

Foreign State Immunity Mr Jeremy P Carver, Solicitor, Coward Chance, London & Singapore Mr G Dabb, Constitutional and International Branch, Attorney-General’s Department Dr DF De Stoop, Legal and Treaties Division, Department of Foreign Affairs Mr RJ Dowey, Adviser, Reserve Bank Mr T Dunne, Manager, Legal Administration, Westpac Banking Corporation Brigadier MJ Ewing, Directorate of Army Legal Services Professor D Greig, Professor of Law, Australian National University Professor DJ Johnson, Professor of International Law, Sydney University Mr G Miner, Legal Affairs Director, Qantas Mr Monroe Leigh, Solicitor, Steptoe and Johnson, Washington, DC, formerly Legal Adviser,

US State Department Mr M Pollard, Legislation and Crews Branch, Department of Transport (until 18 November 1983) Ms G Triggs, Lecturer in Law, University of Melbourne Prof JG Starke, Editor, Australian Law Journal

Admiralty Mr MR Blair, President, The Australian Shippers Council Captain KT Butterworth, Director of Naval Legal Services, RAN Mr R Cooper, Barrister, Brisbane Mr P Comford, Crown Law Office, Wellington, New Zealand

Hon Justice K Carruthers, Supreme Court of NSW Dr Damien J Cremean, Barrister, Victoria Ms MC Calder, Solicitor, Sydney Mr RD Desmond, Lawyer, Middletons, Oswald, Burt & Co, Vic Mr PG Foss, Lawyer, Stone James Jaques, WA Mr MA Hill, General Manager, Associated Marine Insurers Aust Pty Ltd Mr P Holmes, Department of Transport, Canberra Captain P Klausen, Company of Master Mariners of Aust, Sydney Mr GJ Lindell, Senior Lecturer in Law, Australian National University Mr Brian Makins, Lawyer Nominee of the Australian Chamber of Shipping Mr R Muecke, Advising Division, Attorney-General’s Department, Canberra Mr CW O ’Hare, General Council, Export Finance and Insurance Corp. Assoc Prof D Roebuck, Law School, University of Papua New Guinea Hon Justice IF Sheppard, Federal Court of Australia Mr AJ Scotford, Solicitor, Ebsworth and Ebsworth, Sydney Professor I Shearer, Professor of Law, University of NSW Contempt

Mr K Anderson, SM, Magistrates’ Courts, Sydney

18 / The Law Reform Commission

Mr Mark Armstrong, Member Aust. Broadcasting Tribunal, Sydney Mr Peter Cashman, Director, Public Interest Advocacy Centre, Sydney Professor E Campbell, Professor of Law, Monash University, Melbourne Mr A Deamer, Solicitor, John Fairfax & Sons, Sydney Mr Robyn Durie, Legal Executive, United Telecasters Ltd, Sydney Acting Senior Sergeant P Duffy, Australian Federal Police, Sydney Henry M. Di Suvero, Visting Lecturer in Law, University of NSW, Sydney Dr John Griffiths, Director of Research, Administrative Review Council, Canberra Mr AR Green, Department of Youth & Community Affairs, Sydney Dr JF Hookey, Senior Assistant Secretary, Human Rights Commission, Canberra Mr G James, QC, Barrister, Sydney Prof H Mayer, Professor of Political Theory, University of Sydney Mr Tom Molomby, Broadcast Officer, Australian Broadcasting Commission The Hon Justice TR Morling, Federal Court of Australia, Sydney Mr Daniel O ’Sullivan, Editor-in-Chief, West Australian Newspaper, Perth Mr NW Swancott, Federal Secretary, Austalian Journalists’ Association, Sydney Dr DM Thomson, Snr. Lecturer in Psychology, Monash University, Melbourne The Hon Justice Watson, Family Court of Australia, Sydney

Matrimonial Property Reference Mr RK Burr, Solicitor, Adelaide Mr AC Colson, Australian Institute of Multicultural Affairs, Melbourne Mr BH Crawford, Solicitor, Hobart Associate Professor A Dickey, Law School, University of WA Perth Ms M Edwards, Department of Education & Youth Affairs, Canberra Mr CB Fernando, Attorney-General’s Department, Canberra Mrs M Finn, Attorney-General’s Department, Canberra Dr I Hardingham, Reader-in-Law, University of Melbourne, Melbourne Mr JV Kay, Barrister, Melbourne Mr ED Lardner, Solicitor, Canberra Mr DJ Lloyd, Solicitor, Sydney Rev B Lucas, Australian Catholic Social Welfare Commission, Sydney Mr P McDonald, Deputy Director (Research), Institute of Family Studies, Melbourne Mrs M Neave, NSW Law Reform Commission, Sydney Ms E O ’Keefe, Office of the Status of Women, Department of the Prime Minister and Cabinet,

Canberra Ms C Petre, Redfem Legal Centre, Sydney Mr PI Rose, Barrister, Sydney His Honour Judge Peter Trapski, Principal, Family Court Judge, New Zealand Mr JH Wade, Faculty of Law, University of Sydney, Sydney Dr S Watson, Research School of Social Sciences, Australian National University Ms J Wilson, Solicitor, Sydney

Community Law Reform (ACT) Mr N Seddon, Senior Lecturer in Law, Australian National University The Commission records its appreciation to the consultants who freely give of their time in consulting on Commission drafts, attending meetings and otherwise making themselves available for consultation. It also records its thanks to universities, employers and organisations which, in many cases have consented to the appointment of its honorary consultants and made their time available to the Commission without charge.

The Law Reform Commission of Australia / 19

45. The Commission is also fortunate to have the assistance of several consultants who have provided specialist advice and assisted with the drafting of consultative papers, reports and draft legislation.

46. Professor JG Starke QC has assisted the Commission with its references on aboriginal customary law, privacy and foreign state immunity. Mr JQ Ewens CMG, CBE, QC, formerly First Parliamentary Counsel of the Commonwealth of Australia, has assisted the Commission in settling the draft legislation to accompany its report on privacy and is also a consultant on the Commission’s admiralty law, foreign state immunity and evidence references. Mr R Hogg, an Associate Lecturer in Law at the New South Wales Institute of Technology has assisted the Commission on its reference on access to the courts. Mr E Kyrou, an honours graduate in law, and now a practising Melbourne lawyer, has also assisted the Commission in its reference on access to the courts. Mr T Martin QC, (formerly His Honour Judge Martin) assisted the Commission in its reference on evidence as did Mr M Corrigan, an honours law graduate from Melbourne. The Commission also gratefully acknowledges the assistance provided on its reference on aboriginal customary law by Associate Professor K Maddock from Macquarie University, Dr D Bell and Dr P Sutton, Consultant Anthropologists and Dr G Von Sturmer from the Australian Institute of Aboriginal Studies.

Commission Publications

47. The Law Reform Commission Act 1973 makes provision for the Commission to furnish reports to the Attorney-General on each of its references. The Minister is then required to table such reports in Parliament. The reports can be obtained from Australian Government Publishing Service bookshops throughout Australia; a list of titles appears at the front of this report. The Commission also issues consultative papers in connection with its references; these are working

papers, issues papers, research papers and discussion papers. The papers, which normally receive the widest distribution, apart from reports, are the Commission’s discussion papers. An explanation of each category of paper follows:

Issues Papers —

Discussion Papers —

Summary Discussion Papers —

These are usually published in the early stages of a reference. They are intended to raise for consideration the principal issues that seem to present themselves. Conclusions and proposals are generally kept to a minimum. These papers are circulated to persons and organisations who are expert in the area and who are able to make suggestions to the Commission about matters arising from the terms of reference and the scope of the issues to be explored.

These generally contain the Commission’s tentative proposals or advance various options for reform. They are distributed widely to help focus public and expert debate. The function of discussion papers is frequently misunderstood. They are not draft reports. The presence of tentative proposals merely provides an indication of the Commission’s

thinking at the time of the publication of the paper. The options for reform contained in the paper assist in identifying solutions. These are then tested in subsequent public debate. The comments and submissions are considered by the Commission when preparing its final report.

In appropriate cases, a summary discussion paper will also be issued, which will generally have a wider circulation than the full paper. It indicates that persons wishing to comment can obtain a copy of the full

20 I The Law Reform Commission

Summary Issues Papers —

Working Papers —

Research Papers —

discussion paper on request. In this way, the Commission hopes to reach persons and organisations who have an interest in, or may be affected by, Commission proposals. By arrangement with the Aust­ ralian Law Journal, the Legal Service Bulletin and relevant specialized journals (e.g. The Valuer, Insurance Broker, Aboriginal Legal Bulletin etc.) general distribution of the pamphlet is achieved throughout the legal profession and other professions or industries specially affected. As a result of this distribution, many informed comments are received and suggestions and criticisms made which are of specific help to the Commission.

In appropriate cases, summary papers are also provided and given a wider circulation, in the same manner as for Summary Discussion Papers (see below) A discussion paper may or may not be supported by a detailed working paper. This will depend upon the nature of the subject matter and the requirements of the reference. Where a working paper is prepared, it will generally be available on a limited basis because of its bulk and the cost of production. Because of its detailed and technical nature, a working paper is intended for persons who have a particular expertise in the subject under consideration and who are able and willing to comment in detail.

These are prepared by individual officers based on research and/or field work undertaken by them on a particular aspect of a reference. They are in the nature of internal papers prepared by a member of the

Commission’s staff for the Commission’s consideration. Accordingly, they do not reflect the Commission’s views. They are circulated on a limited basis to persons and organisations who may wish to provide initial comment before the Commission undertakes a more detailed consideration of the issues raised and secures public comment on them. With appropriate alterations and additions, research papers often form the basis of parts of the Commission’s discussion papers and final report.

48. The following table sets out the research papers issued by the Commission in projects which are still current:

Consumers in Debt Research Paper 1 Default Summons Survey (W.J. Tearle) Evidence Research Paper 1

Research Paper 2

Research Paper 3 Research Paper 4 Research Paper 5 Research Paper 6 Research Paper 7 Research Paper 8

Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories (A. Sowden) Common Law of Evidence: Areas of Disagreement and Uncertainty (S. Odgers) Hearsay Evidence Proposal (T.H. Smith) Secondary Evidence of Documents (T.H. Smith) Competence and Compellability of Witnesses (L. Re and T.H. Smith) Sworn and Unsworn Evidence (L. Re and T.H. Smith) Relevance (S. Odgers) Manner of Giving Evidence (L. Re and T.H. Smith)

The Law Reform Commission o f Australia 121

Research Paper 9 Hearsay Law Reform: Which Approach (Mr Justice M.D. Kirby, I. Cunliffe, T.H. Smith) Research Paper 10 The Judge: Adducing Evidence and Judicial Notice (L. Re and T.H. Smith) Research Paper 11 Character and Conduct (S. Odgers) Research Paper 12 Identification Evidence (L. Re) Research Paper 13 Opinion Evidence (I. Freckleton) Research Paper 14 Aspects of Proof (M. Ball) Research Paper 15 Admissions and Confessions (S. Odgers) Research Paper 16 Privilege (I. Freckleton) Aboriginal Customary Laws

Research Paper 1 Promised Marriage in Aboriginal Society (P.K. Hennessy) Research Paper 2 The Recognition of Aboriginal Customary or Tribal Marriage: General Principles (J.K. Crawford) Research Paper 3 The Recognition of Aboriginal Tribal Marriage: Areas for Functional

Recognition (J.R. Crawford, P.K. Hennessy) Research Paper 4 Aboriginal Customary Law: Child Custody, Fostering and Adoption (J.R. Crawford, F.M. Howarth) Research Paper 5 Aboriginal Customary Law: Traditional and Modem Distributions of Property

(P.K. Hennessy)

Research Paper 6 Aboriginal Customary Law and the Substantive Criminal Law (J.R. Crawford, C.J. Kirkbright) Research Paper 6A Cases on Traditional Punishments and Sentencing (J.R. Crawford, P.K. Hennessy)

Research Paper 8 Aboriginal Customary Law: A General Regime of Recognition (J.R. Crawford) Research Paper 9 Separate Institutions and Rules for the Aboriginal People: Pluralism and Reverse Discrimination (J.R. Crawford)

Research Paper 10 Separate Institutions and Rules for Indigenous Peoples: International Prescrip­ tions and Proscriptions (J.R. Crawford) Research Paper 11/12 Aboriginal Customary Law and Community Justice Mechanisms: Indepen­ dent Forums (P.K. Hennessy)

Research Paper 13 Aboriginal Customary Law: Problems of Evidence and Procedure (P.K. Hennessy) Research Paper 14 The Proof of Aboriginal Customary Law (J.R Crawford) Research Paper 15 Aboriginal Customary Law: The Recognition of Traditional Hunting, Fishing

and Gathering Rights (M. Fisher)

Admiralty Research Paper 2 Admiralty Jurisdiction in Australia: The Courts Exercising Original and Appellate Jurisdiction (S.R. Curran) Service and Execution of Process

Research Paper 2 Commencing Process (M.C. Pryles) Research Paper 3 Tribunals (A. Young) Research Paper 4 Enforcement of Judgments (M.C. Pryles) Research Paper 5 Service of Other Process (A. Young)

Clearing House Functions for Australia

49. The Commission is continuing its functions as a clearing house of law reform information in

22 I The Law Reform Commission

Australia. The services provided include the publication of its quarterly bulletin Reform. The Law Reform Digest has also now been published. The Commission has responsibility for collecting suggestions for law reform made by persons and organisations in respect of matters within Federal responsibility.

50. Reform . The quarterly bulletin Reform continues to be read widely both in Australia and overseas. The current circulation of the bulletin exceeds 2000 copies. The subscription readership continues to grow. The bulletin contains information on law reform developments both in Australia and overseas. It also contains details of reports completed or in preparation by Australian law reform agencies as well as agencies in a number of overseas countries. Extracts from Reform are frequently reproduced in Australian and overseas law journals. It has proved an effective and

inexpensive way of bringing to a wide audience general information about progress in law reform in Australia.

51. The Law R eform Digest. This digest was launched at the Australian Law Reform Agencies Conference in 1983. It contains a summary of law reform proposals made by law reform agencies throughout Australia, New Zealand and Papua New Guinea from 1910 to 1980. It also lists legislation which has followed the reports and current programs before the law reform agencies involved. It will be of great use in common law countries throughout the world in bringing to notice in a single, convenient volume, the proposals of the Australasian law reform agencies concerning improvement of the legal system. It should spread the influence of the reports of the

agencies and contribute to the work of law reform, particularly in developing countries. It is hoped that, within Australia, New Zealand and Papua New Guinea, it will ensure that unnecessary duplication of law reform research effort is kept to a minimum. The Digest is distributed through the AGPS.

52. Law R eform Suggestions. Following the Government’s acceptance of the recommendation by the Senate Standing Committee on Constitutional and Legal Affairs that the Commission should compile a register of law reform suggestions and report on them annually to Parliament, the Commission included in its last three annual reports a schedule of suggestions. A schedule of suggestions received since the last annual report is at Appendix A. This schedule contains suggestions for law reform which have come to the Commission’s notice in the past year. The list is not meant to be exhaustive nor does it include proposals made by other law reform agencies. Although some suggestions are not new and may have been made previously, they are included as giving an indication of concern about aspects of the law. Inclusion of a suggestion does not imply any opinion by the Commission about the merits or otherwise of the suggestion. In the year under review, the Commission received a community law reform project, which will involve it in taking some of the law reform suggestions further, by preparing short reports on selected, small, self-contained law reform suggestions.

Freedom of Information

53. The Commission has not received any formal requests for information under the Freedom of Information legislation. However the Commission receives many requests for information, especially for access to materials generated by the Commission: research papers, issues papers and so on. It is estimated that requests to the Commission for documentary information of one sort or another would number in the vicinity of 1000 a year. The Commission follows a policy of openness with the information it holds, subject to necessary qualifications where for example material was supplied in confidence or its disclosure might breach the privileges of Parliament eg an advanced draft of the Commission’s final report. The Commission is exploring ways in which material it

The Law Reform Commission of Australia / 23

holds which is specifically prepared for distribution (eg research papers) can be made more widely available to people interested in it at a cost which is not prohibitive.

Public Consultation

54. The Commission has always stressed the importance of consulting the public before formulating its final recommendations on reform of the law. Methods of public consultation used by the Commission include:

• distribution of consultative papers; • conduct of public hearings and seminars; • issue of media releases; • conduct of surveys and public opinion polls; • undertaking interviews with the press; • participating in radio and television programs; • holding discussions with parliamentary committees and individual Members of Parliament; • making addresses to professional bodies, universities, community organisations and

conferences; • holding discussions with individuals; • invitation of written submissions

55. Whilst distributing research papers is an appropriate method of obtaining information on references such as Foreign State Immunity and Evidence, other additional methods are necessary on references such as the Recognition of Aboriginal Customary Law. Members of the Division and Senior Law Reform Officers have spent a considerable amount of time discussing aspects of the

Aboriginal Customary Law Reference with aborigines in urban and remote areas and with representatives of Aboriginal organisations. Similar methods have been used in the Contempt Reference. Researchers on this reference have conducted a large number of interviews with journalists, solicitors, barristers and government lawyers to obtain first-hand information on the problems being experienced in this area.

Visits

56. The Commission is maintaining its policy of reciprocal exchange arrangements with similar organisations in Australia and overseas. It is continuing its close links with such international organisations as the Commonwealth Secretariat, the Council of Europe, the Organisation for Economic Co-operation and Development, the Federal Judicial Center and other United States

bodies relevant to law reform. The many visitors to the Commission from within Australia and overseas enable it to strengthen its contacts with organisations and persons whose work is relevant to projects before the Commission, and to law reform generally.

Appreciation

57. The Commission expresses its appreciation for the assistance provided by government departments, both Commonwealth and State, Australian embassies and high commissions and law reform bodies and universities in Australia and overseas. The Commission has also had the benefit of consultations with many distinguished judges, legal and other scholars, parliamentarians, members of the legal profession, representatives of industry and community organisations, government officers and officials of international organisations. These are greatly appreciated and assist the Commission in the effective discharge of its functions.

3. Completed Projects

Completed Projects

58. Completed References and A nnual Reports. Table 3 sets out in summary form the reports completed by the Commission and action taken in respect of those reports. Further details are set out in the paragraphs following the table.

T a ble 3 C o m ple ted R eferen ces and A n n u a l R eports

Date Consultative

Reference received papers Report Action

Criminal 15 May 1975 Working Paper No 1 ALRC 1 Complaints Complaints (Australian

Investigation Complaints Against Against Police Federal Police) Act 1981

Police tabled 7 August (Cwlth). Commenced 1 May

June 1975 1975 1982. Also reflected in

NSW in Police (Allegations of Misconduct) Act 1977 (NSW).

ALRC 2 Criminal Criminal Investigation Investigation Bill, 1981 lapsed on

tabled 8 November dissolution of Parliament 1975 for 1983 Federal Elections.

Federal Government reviewing Bill with view to its reintrod­ uction in 1984.

ALRC 3 Annual Senate Standing Report 1975 Committee on

tabled 11 November Constitutional and 1975 Legal Affairs report

Reforming the Law. Ministerial Statement May 1980. Resolution of Senate 24 September 1981. Standing Committee of Commonwealth and State Attomeys-General con­ sidering proposals for National Law Reform Advisory Council.

Alcohol, Drugs 22 January Working Paper No 2 ALRC 4 Alcohol. Motor Traffic (Alcohol

and Driving 1976 Alcohol, Drugs & Drugs & Driving & Drugs) Ordinance 1977

Driving tabled 23 September (ACT) implemented

February 1976 1976 December 1977.

ALRC 5 Annual Report 1976 tabled 11 November 1976

As ALRC 3.

Completed Projects / 25

Reference

Consumer Insolvency Stage I-

The Regular Payment of Debts

Stage II Debt-Recovery & Insolvency

Human Tissue Transplants

Complaints Against Police (Supplementary Report)

Defamation

Date Consultative

received papers Report Action

10 May 1976 Working Paper No 3 Consumers in Debt November 1976

ALRC 6 Insolvency: The Regular Payment of Debts tabled 4 November

1977

Amendments to s.149 Bankruptcy Act 1966 based in part on Commission’s recommendation. In June

1984 Federal Attorney- General announced Government’s intention to implement substance of Report, cf

Debts Repayment Act, 1978 (SA).

See Table on current references.

15 July 1976 Issues Paper No 1

Statutory Brain Death November 1976

ALRC 7 Human Tissue Transplants tabled 21 September 1977

ACT Transplantation and Anatomy Ordinance 1978 implemented December 1978.

Working Paper No 5 Human Tissue Transplants January 1977

Legislation based on Commission’s report enacted in all States

and Territories except Tasmania.

ALRC 8 Annual As ALRC 3.

Report 1977 tabled 8 November 1977

7 January 1977

Working Paper No 6 ALRC 9 Complaints As ALRC 1 Complaints Against Against Police Police (Supple­ (Supplementary mentary Report) Report)

March 1977 tabled 9 June 1978

ALRC 10 Annual As ALRC 3. Report 1978 tabled 24 November 1978

23 June 1976 Working Paper No 4 ALRC 11 Unfair Exposure draft of

Defamation Publication: Uniform Bill produced

November 1976 Defamation and Privacy by Federal Attorney- General. Issue

Discussion Paper tabled 7 June still under consider­

No 1 Defamation: Options for Reform January 1977

Discussion Paper No 2 Privacy and Publication Proposals for Protection April 1977

1979 ation by Standing

Committee of Common­ wealth and State Attomeys-General

26 / The Law Reform Commission

Reference

Privacy and the Census

Lands Acquisition

Sentencing Stage I

Date Consultative

received papers Report Action

Discussion Paper No 3 Defamation and Publication Privacy - A Draft Uniform Bill October 1977

25 May 1976 Discussion Paper No 8 Privacy and the Census May 1979

ALRC 12 Privacy and the Census tabled 15 November 1979

Government’s response to Commission recommendations indicated on 20 November 1979,

10 September 1980 and and 30 April 1981. Some proposals implemented Census and Statistics Amendment Act 1981.

ALRC 13 Annual As ALRC 3.

Report 1979 tabled 22 November 1979

7 July 1977 Working Paper No 8 ALRC 14 Lands

Lands Acquisitions Acquisition and Law Reform Proposals Compensation December 1977 tabled 22

April 1980

Discussion Paper No 5 Lands Acquisition Law - Reform Proposals January 1978

11 August Sentencing: National ALRC 15

1978 Survey o f Judges and Sentencing of

Magistrates (interim Federal Offenders report) March 1979 tabled 21 May 1980

Discussion Paper No 10 Sentencing Reform Options June 1979

Implemented in part by Lands Acquisition Act 1978 (NT) Federal Government’s intention substantially to adopt the Report, except for its recommendations on injurious affection, affection, announced September 1983

Implemented in part by Crimes Amendment Act 1982 and publication of prosecution guidelines. Federal Government has announced its intention to establish a Federal Sentencing Council as recommended in ALRC 15.

See also, Crimes Compensation Act 1982 (NT) and Criminal Injuries Compensation Ordinance 1983 (ACT)

Completed Projects / 27

Reference

Date received

Consultative papers Report Action

Insurance Contracts Stage I

9 September 1976

Issues Paper No 2 Insurance Contracts June 1977

Discussion Paper No 7 Insurance Contracts, October 1978

ALRC 16 Insurance Agents and Brokers tabled

16 September 1980

Insurance (Agents and Brokers) Act 1984 substantially implements ALRC 16.

ALRC 17 Annual Report 1980 tabled 3 December 1980

As ALRC 3.

Child Welfare 18 February 1979 Discussion Paper No 9 Child

Welfare: Children in Trouble May 1979

Discussion Paper No 12 Child Welfare: Child Abuse and Day Care May 1980

ALRC 18, Child Welfare 1981 tabled 12 November 1981

ACT House of Assembly has adopted report of a committee of the House recommending adoption of Commission scheme.

Legislation expected be introduced shortly.

ALRC 19 Annual Report 1981 tabled 12 November 1981

As ALRC 3.

Insurance Contracts Stage II

9 September 1979

Issues Paper No 22 Insurance Contracts June 1977

ALRC 20 Insurance Contracts 1982 tabled 16 December 1982

Report is substantially adopted by the Insurance Contracts Act 1984.

ALRC 21 Annual Report 1982 tabled 5 May 1983

As ALRC 3.

Privacy 9 April

1976

Discussion Paper No 13 Privacy and Intrusions Discussion Paper

No 14 Privacy and Personal Information

ALRC 22 Privacy 1983 tabled 14 December 1983

Under consideration by Government

ALRC 23 Annual Report 1983 tabled 15 December 1984

As ALRC 3

Foreign State Immunity

11 November 1982 Research Papers 1-5 Annotated Draft legislation

Discussion Paper ALRC 24 Foreign No 19 Foreign State Immunity

State Immunity December 1983

Recently tabled.

28 / The Law Reform Commission

Complaints Against Police (ALRC 1 and 9)

59. Legislation introducing substantially the scheme proposed by the Commission, came into force on 1 May 1982. The legislation provides for:

• establishment of an Internal Investigation Division within the Australian Federal Police; • the Commonwealth Ombudsman to be a neutral recipient and, in some cases, investigator of complaints with certain enhanced powers; and • establishment of a Police Disciplinary Tribunal, presided over by a member of the

Judiciary.' • vicarious liability by the Commonwealth for the conduct of police officers in the course of their duties; and • identification numbers and address of police in uniform.1 2 3

The federal Labor Government is committed to taking initiatives to establish effective uniform legislation through the Standing Committee of Attomeys-General in relation to complaints against police.

Criminal Investigation (ALRC 2)

60. The Criminal Investigation Bill 1977 was introduced into the Parliament on 24 March 1977. When the Parliament was dissolved in November 1977 the Bill lapsed. An amended Bill was re-introduced by the Attorney-General on 18 November 1981.

The 1981 Bill lapsed on the dissolution of the Parliament for the 1983 federal elections. The Attorney-General, Senator Gareth Evans, who was the principal author of ALRC 2 during the time when he was a foundation Member of this Commission, has indicated that a bill based upon the recommendations contained in ALRC 2 will be circulated in the not too distant future.

Alcohol, Drugs and Driving (ALRC 4)

61. The Motor Traffic (Alcohol and Drugs) Ordinance 1977 (ACT) No 17 of 1977, based with minor exceptions on the Commission’s fourth report, is now in force in the Australian Capital Territory. Some consideration of the operation of the Ordinance is being given by the Criminal Law Consultative Committee of the Australian Capital Territory which is convened and chaired by the Chairman of this Commission.

Insolvency: The Regular Payment of Debts (ALRC 6)

62. On 3 June 1984 the Federal Attorney-General, Senator Gareth Evans QC, announced the Government’s intention to implement the substance of the Commission’s 1977 report Insolvency : The Regular Payment o f Debts (ALRC 6). That report, details of which can be found in the Annual Report 1977\ was prepared under the leadership of Professor David St L Kelly, now Secretary of the Law Department of Victoria and Commissioner in charge of the Commission’s current work on debt recovery reform.

1. The Complaints (Australian Federal Police) Act 1981. 2. The Australian Federal Police Amendment Act 1981. 3. ALRC 8, 27-8.

Completed Projects / 29

63. Announcing the Government’s intention to prepare legislation to ’provide an alternative to bankruptcy for individuals over-committed to debt’, Senator Evans said that the Government would ‘give effect to a Regular Payment of Debts scheme for small non-business debtors proposed by the ALRC’. It is expected that two months will be allowed for public comment upon the terms of a draft Bill now being prepared.

64. Under the Commission recommendations as accepted by the Government, a small non-business debtor will be able to make a proposal to creditors for the payment of his or her debts. The scheme will apply in respect of non-business debts (other than a mortgage or real estate liability) not exceeding $30 000 in all. Key features of the new scheme include:

• the availability of relief outside bankruptcy; • the provision of various options to debtors, including an extension of time to pay, a temporary suspension of payments and a composition with creditors; • the discharge from the debts upon successful completion of the scheme by the debtor; • the provision of financial counselling facilities to assist debtors in the formulation of

proposals and in the handling of credit.

65. Senator Evans said that the proposal was one of ‘practical law reform, crying out for implementation’. He condemned the delay in implementing the proposals. He pointed out that similar debt repayment schemes were operating successfully in the United States and Canada, and had recently been proposed in the United Kingdom.

66. The proposals contained in the Commission’s report have attracted considerable support from consumer, financial counselling and welfare bodies. Early in the year under review, the Australian Federation of Consumer Organizations and the Australian Council of Social Service issued a paper

calling for the implementation of the report.4 5 The announcement by Senator Evans in June 1984 was welcomed by such groups as the Consumer Credit Legal Service in Melbourne, and the Financial Counsellors Association of Victoria.

67. Some of the basic recommendations of the Commission’s report were enacted in South Australia in the Debts Repayment Act 1978, noted in previous Annual Reports.’' That Act has not yet come into force, and no decision concerning the legislation was announced in the past year.

68. The United Kingdom Government has now announced a series of proposed changes to the law relating to corporate and personal insolvency. The proposed changes are outlined in a White Paper released after the Government had considered the recommendations contained in the Cork Committee Report.6 While there are to be a number of significant changes to bankruptcy and

insolvency law, the White Paper does not adopt the Cork Committee’s recommended system of Debts Arrangement Orders. Instead, the White Paper encourages the revival of voluntary arrangements, involving the use of a trustee and a meeting of creditors. A modified bankruptcy procedure is to apply to debtors’ petitions where the total liabilities do not exceed 15 000 pounds.7

Human Tissue Transplants (ALRC 7)

69. The ACT Transplantation and Anatomy Ordinance 1978, came into effect in December 1978. The Ordinance is based on the draft Ordinance proposed by the Commission in its report. Legislation based on the Commission’s recommendations has also been enacted in Queensland,

4. Annual Report 1983, ALRC 23, para 30. 5. Annual Report 1979, ALRC 13, 26; Annual Report 1983, ALRC 23, 29. 6. Details of the Cork Committee Report are contained in Annual Report 1983, ALRC 23, 30. 7. Department of Trade and Industry (UK), A Revised Framework fo r Insolvency Law, 1984, Cmnd 9175.

JO / The Law Reform Commission

Western Australia, Northern Territory, Victoria, South Australia and new South Wales. The report is not only important as a uniform law exercise. It also represent a successful model for the achievement of law reform in a controversial area of concern, likely to be of growing importance as developments such as in vitro fertilisation, cloning and genetic engineering are presented for legal resolution.

Unfair Publication (ALRC 11)

70. The Commission’s report was tabled on 7 June 1979. Details of the Commission’s proposals are set out in the 1979 Annual Report." A draft of a Uniform Bill, circulated after consideration of the proposals by the Standing Committee of Commonwealth and State Attorneys-General, was the subject of much vigorous debate during the year. The Standing Committee has continued to discuss the matter and at its latest meeting in Perth during May 1984 decided that a further draft Uniform Bill should be circulated. Matters to be excluded from further consideration are:

• a right of reply as a precondition to reliance on the defence of fair report; • an express provision for pretrial access to television and radio stations’ records; and • the creation of a general defence of limited privilege for media reports.

Certain other matters, including provision for criminal defamation, are to be excluded from the draft Uniform Bill, but may be the subject of individual State legislation. There is still disagreement on the form of the defence of justification, the three possibilities being:

• truth alone; • truth and public benefit; and • truth and protection for sensitive private facts.

The next meeting of the Standing Committee at Darwin in August will determine the fate of uniform law on defamation.

Privacy and the Census (ALRC 12)

71. The Commission’s report on this subject was tabled in Parliament on 15 November 1979. Details of the Commission’s proposals are set out in the Commission’s Annual Report 1980.8 9 1 0 1 1 1 2 Details of the Government’s response to some of the proposals made by the Commission are also set out in the Annual Report 1980.10 On 10 September 1980 the Treasurer made a further statement on other aspects of the Commission’s report." That statement is summarised in the Annual Report

1981.12 The Census and Statistics Amendment Act 198113 incorporates the decisions announced in the Treasurer’s statements of 20 November 1979 and 10 September 1980.

Lands Acquisition and Compensation (ALRC 14)

72. The Commission’s fourteenth report, Lands Acquisition and Compensation was tabled in Parliament on 22 April 1980. Details of the Commission’s proposals are set out in the Annual

8. ALRC 13, 27-28. 9. ALRC 17, 27-28. 10. ALRC 17, 28-29. 11. Australia, House of Representatives, Debates 10 September 1980, 1081. 12. ALRC 19, 26-27. 13. Australia, House of Representatives. Debates 30 April 1981, 1854.

Completed Projects / 31

Report 1980.'* A significant number of the Commission’s proposals have been implemented in the Northern Territory.1 4 15 1 6 1 7 1 8 This legislation was based on the proposals set out in the Commission’s discussion paper Lands Acquisition Law: Reform Proposals.'6 Many of the proposals in the discussion paper were incorporated in the Commission’s report. In a joint statement on 30 September 1983", the Attorney-General and the Minister for Administrative Services announced

the Government’s intention to introduce legislation picking up many of the recommendations made by the Commission including:

• new acquisition procedures whereby owners will be notified of their rights and be able to seek valuation and legal advice at Commonwealth expense; • review by the Administrative Appeals Tribunal of acquisition decisions and offers of compensation; • expansion of the categories of compensation for compulsory acquisition to include:

- a solace payment where the principal place of residence is acquired; - more generous compensation for disturbance; - compensation for principal private residence to be based on the cost of a replacement property where compensation is otherwise insufficient to purchase a replacement property;

- the reasonable prospects of renewal to be taken into account in assessing compensation for leasehold interests.

A Bill is likely to be introduced in the 1984 Budget Session. The Government has, for the time being, deferred a decision on recommendations of the Commission regarding compensation for injurious affection to interests in land caused by use of land vested in the Commonwealth. Further discussions on this matter are continuing with the States.

Sentencing of Federal Offenders (ALRC 15)

73. The Crimes Amendment Act 1982 introduced a number of reforms to the punishment of federal offenders, implementing some of the proposals contained in the Commission’s interim report Sentencing o f Federal Offenders. A number of further issues will be dealt with in the final report. These are outlined in Chapter 13 of the report on the Sentencing o f Federal Offenders. Details of the Commission’s proposals are set out in the Annual Report 1980.'* Proposals adopted by the legislation include:

• provision that, when a gaol term is not mandatory, a person convicted of a federal or Capital Territory offence should not be sentenced to prison unless the court is satisfied that in all the circumstances no other penalty is appropriate; • provision requiring a court to state its reasons in writing why no other sentence is

appropriate, if a prison sentence is imposed; • provision to make available for the punishment of federal offenders, alternatives to imprisonment (such as community service orders or weekend detention) available in the State in which he is convicted.

74. Prosecution Guidelines. The Commission’s interim report dealt with the ‘punishment’ of federal offenders and pointed out that such punishment could be determined or influenced by prosecution decisions. One of the important recommendations of the report was that the federal

14. ALRC 17 , 29-30. 15. Lands Acquisition Act 1978 (NT). 16. ALRC DP 5. 17. (1983) 8 Commonwealth Record 1585.

18. ALRC 17, 30-33.

32 / The Law Reform Commission

Attorney-General should issue guidelines to federal prosecutors, establishing the lawful policy to be adopted by them in exercising their discretion. It was further recommended that these guidelines should be published and be available for review and criticism.1 '' This has now been done.1 9 20 *

75. Sentencing Council. Establishment of a national sentencing council was also proposed in the Commission’s interim report. The Attorney-General has announced his intention to establish a Sentencing Council but whether this will be a Federal or Federal/State body is yet to be determined.

Insurance Agents and Brokers (ALRC 16)

76. The Commission’s report was tabled in Parliament on 11 September 1980. Details of the Commission’s recommendations are set out in the Commission’s Annual Report 1980.2' In December 1983 an Insurance (Agents and Brokers) Bill was introduced. Following extensive comments from, and discussion by the Government with, the States and Territories and industry and consumer groups, the revised Insurance (Agents and Brokers) Bill 1984 was introduced on 10 May 1984. The 1984 Bill contained a number of amendments to the 1983 measure, but still largely reflected the recommendations made by the Commission in its report. The Commissioner in charge of the Commission’s Insurance reference, Professor David Kelly, now the head of the Victorian Department of Law, was engaged by the Federal Treasury as a consultant on the Bill, and was closely involved in the redrafting of the 1983 Bill. The 1984 Bill was assented to on 25 June 1984, although some of its provisions are not yet proclaimed.

Child Welfare (ALRC 18)

77. The Commission’s report was tabled in Parliament on 12 November 1981. Details of the Commission’s recommendations are set out in the Commission’s Annual Report 1981 r 1 In November 1983 the Australian Capital Territory House of Assembly adopted a report from the Standing Committee on Health Housing and Welfare favouring the implementation of the substance of the scheme recommended in the Commission’s report. It is now expected that reform legislation based on the report will be introduced soon.

Insurance Contracts (ALRC 20)

78. The Commission’s report was tabled in Parliament on 16 December 1982. Details of the Commission’s recommendations are set out in the Commission’s Annual Report 1982.23 The report should be read in conjunction with the Commission’s earlier report Insurance Agents and Brokers (ALRC 16) referred to above. The Insurance Contracts Act 1984 substantially implements the Commission’s recommendations. The Act received Royal Assent on 25 June 1984. It is not yet in operation pending proclamation of regulations, including regulations dealing with the novel proposal of standard cover for certain classes of insurance. The Commissioner in charge of the Insurance reference, Professor David Kelly, and the Commission’s Legislative Draftsman, Mr

19. See ALRC 15, para 67-71. 20. The Prosecution Policy o f the Commonwealth was tabled in the House of Representatives on 9 December 1982 and is available from the Australian Government Publishing Service. 21. ALRC 17, 33-34. 22. ALRC 19, 29-30. 23. ALRC 21, 34-37.

Completed Projects / 33

Stephen Mason, are both working with the Attorney-General’s Department, at its request, settling the detailed regulations necessary to implement standard cover. Professor Kelly is now head of the Victorian Department of Law.

79. Proposals for complementary legislation to extend the Commission’s proposals, as appropriate, to State insurance have been raised in the Standing Committee of Attorneys-General.

Privacy (ALRC 22)

80. The Commission’s report was tabled in Parliament on 14 December 1983. Details of the Commission’s recommendations are set out in the Commission’s Annual Report 1983.24 2 5 Consideration of the recommendations has been taking place between the Departments and interested groups likely to be affected. The Commission has had continued involvement in this consultative process. A task force within the Attorney-General’s Department has been established to co-ordinate consideration of the proposals. It is to be hoped that progress on the enactement of laws reflecting the Commission’s proposals will be swift.

81. One area of the Commission’s study which has attracted attention are the privacy issues related to Electronic Funds Transfer (EFT) systems. The Westpac Bank has introduced an EFT system in petrol stations and supermarkets nation-wide and proposals for similar systems have been

made by other banks. Critical issues of information privacy arise in relation to such systems, including:

• rights of access to, and challenge and correction of, information; and • the use and disclosure of information derived from consumer use of the EFT system.

On the latter point, consumer groups have expressed fears that profiling of the purchasing habits of consumers may occur without their consent, or without even their knowledge. The Attorney- General has acknowledged the need to adopt appropriate measures, including legislation, to deal with the privacy and other issues concerning EFT. The recent Martin Review of the Australian

Financial System, however, suggests that legislation is unnecessary and that at present a committee to monitor developments should be sufficient.

82. Either a Bill or a Parliamentary Statement on implementation of ALRC 22 is expected in the 1984 Budget Session. Privacy has also been placed on the agenda of the Standing Committee of Attomeys-General.

Foreign State Immunity (ALRC 24)

83. Background to Report. The Report arises from a Reference given to the Commission in November 1982. The Commission’s earlier work on the Reference was described in the Commission’s Annual Report 19833s Since that time the Commission’s research staff (Commissioner in Charge, Professor James Crawford, and Mr SR Curran, Chairman’s Associate,

subsequently appointed a Senior Law Reform Officer) produced a number of consultative papers, which formed the basis for meetings with consultants and other interested persons and bodies. These papers were:

RP 3: Basic Principles of Foreign State Immunity: An Assessment o f the

Need fo r Australian Legislation (July 1983) (JR Crawford)

24. ALRC 23, 34-37. 25. ALRC 23, 45-6.

34 / The Law Reform Commission

Draft Legislation: DP 19:

RP 5:

RP 4: The Content o f Australian Legislation on Immunity from Jurisdiction

(August 1983) (SR Curran) Enforcement o f Judgments Against Foreign States (November 1983) (JR Crawford & SR Curran) Foreign State Immunity (December 1983) Annotated Draft Australian Legislation on Foreign State Immunity

(December 1983)

In particular ALRC DP 19 and the Draft Legislation were widely distributed. Altogether, 40 submissions were received from persons within and outside Australia. The Trade Law Committee of the Law Council of Australia made helpful comments on the draft legislation in its revised form. The Australian Branch of the International Law Association established a sub-committee on the topic, consisting of the Hon Mr Justice PE Nygh and Mr D Flint, which contributed in a most helpful way to the Commission’s work.

84. A Changing Area o f Law. Since the early nineteenth century it has been recognised that foreign states and their agencies are entitled to some immunity from the jurisdiction of courts of other countries. At a time when the amount of international trade and of other international contact, and the level of foreign state involvement in that trade and contact, were much less than they are today, foreign states tended to be granted absolute or at least general immunity from jurisdiction. But recent developments, both in judicial decisions and in legislation, have progressively reduced the scope of foreign state immunity, bringing it more into line with modem conditions and needs. In Australia, foreign state immunity is still governed by the common law, but there have been few cases. The Report examines the present Australian law and the overseas developments, as a background to determining what the law should be.

85. Underlying Principles. These are good arguments both for extending a degree of immunity to foreign states before Australian courts, and for limiting the scope of that immunity. The considerations supporting local jurisdiction (or immunity from it) reflect a variety of rules, principles and policies: on the one hand, the forum’s nexus with the dispute, its interest in applying its own mle, the likelihood that the dispute will be susceptible to local judicial determination, the principle of consent, and forum conveniens·, on the other hand, notions of comity and reciprocity, respect for other sovereignties and for established principles of international law (such as the immunity of foreign public ships) and an assessment of the risk to foreign relations of excessive claims to jurisdiction. Although these arguments support an approach based on restrictive immunity, in the Commission’s view they do not point to a single distinction between immune and non-immune cases as appropriate or necessary, whether it is a distinction between ‘private’ and

‘public’ law, or between ‘commercial’ and ‘governmental’ transactions. Common law courts have been developing such a distinction, but their approach has a number of difficulties. The Commission’s preferred approach is to deal with the various categories or classes of cases that can arise and to fashion specific rules for each category, taking into account the reasons for according immunity or for asserting jurisdiction in that specific context.

86. Recom m ended Legislation. The Report recommends the enactment by the Commonwealth Parliament of a Foreign States Immunities Act, in the form set out in the first Schedule. The conclusions accords with the balance of opinion expressed to the Commission that legislation is desirable. In the interests of avoiding possible foreign relations problems, Australia should articulate to foreign states more precise rules governing their liability to the jurisdiction of Australian courts. The Commonwealth should express its willingness to reconsider the legislation if a generally acceptable convention emerges from the work of the International Law Commission. However, it is desirable to legislate now, on the basis that adjustments can be made later to reflect any eventual international consensus. Features of the proposed legislation:

Completed Projects / 35

• a reasonably expansive definition of ‘foreign state’, on the ground that the substantive provisions of the legislation provide a sufficiently broad basis for asserting jurisdiction over foreign states; • detailed provision for submissions to the jurisdiction by foreign states, including

submissions by agreement in advance; • specific provision for the jurisdiction of Australian courts over - commercial transactions - contracts of employment

- industrial and intellectual property - arbitrations (both supervisory jurisdiction and the enforcement of awards) - membership of local corporations and associations - cases of local personal injury and damage to property - disputes over local immovable property, and certain other property disputes - taxes - bills of exchange, and - admiralty actions in rem\

• provision for remedies against foreign states in cases where they are not immune from local jurisdiction, and in particular for execution against foreign state commercial property as defined; • provision for service on foreign states as agreed, or through the Department of Foreign

Affairs; and • limited provision for the immunity of foreign heads of state in their private capacity.

The legislation does not override specific immunities conferred on foreign states under other legislation (e.g. the Diplomatic Privileges and Immunities Act 1967 (Cth)), and does not apply to criminal proceedings. Provision is made for the alteration of immunities by regulation or a basis of reciprocity (where Australia is not accorded similar immunities by the foreign state), or to comply

with treaty arrangements to which Australia is a party.

4. Current Projects

Current Projects

87. C urrent References. The following table sets out in summary form details of the Commission’s current references. Additional details about these references are set out in paragraphs 88 to 118 below. The terms of reference at present before the Commission are set out at the end of this report in Appendix B.

T a ble 4 C u rren t R eferen ces

Dale Consultative Expected date

Reference received papers of completion

Insolvency 10 May 1976 Discussion Paper 1985

Stage 2- No 6 Debt Recovery

Consumer Debt and Insolvency

Recovery and Insolvency

July 1978

Access to the 1 February 1977 Discussion Paper- Report on Standing:

Courts No 4 Access to the 1985

(Standing to Courts - I Standing: Report on Class

Sue and Class Public interest Actions: 1985

Actions) Suits — November 1977

Working Paper No 7 Access to Courts — / Standing Public Interest Suits November 1977

Discussion Paper No 11 Access to — Courts II Class Actions

June 1979

Aboriginal 9 February 1977 Discussion Paper 1985

Customary Laws No 17 Aboriginal

Customary Law-Recognition November 1980 Discussion Paper No 18 Aboriginal Customary Law — Marriage, Children and the Distribution of Property August 1982

Research Papers (see list, para 86)

Sentencing 11 August 1978 Sentencing National Interim Report

Stage 2 Survey of Judges and delivered 1980.

Magistrates To be completed 1986.

March 1979

Current Projects / 37

Date Consultative Expected date

Reference received papers o f completion

Discussion Paper No 10 Sentencing Reform Options — June 1979

ALRC 15 Sentencing o f Federal Offenders (Interim) tabled 21 May 1980 Research Papers (see list, para 81)

Evidence 18 July 1979 Discussion Paper Interim Report

No 16 to be presented 1

Reform of Evidence Law 1980 October 1980 Issues Paper No 3

Reform o f Evidence Law October 1980 Research Papers (see list, para 96)

To be completed

Admiralty 23 November 1982 1985

Service and 29 November 1982 Issues Paper No 5, 1985

Execution of Service and Execution

Civil and o f Process March Γ984

Criminal Research Papers

Process (see list, para 51)

Contempt of 7 April 1983 Issues Paper No 4 Late 1985

Court Reform of Contempt

Law January 1984

Matrimonial Property

14 June 1983 Late 1985

Insolvency Stage 3 — Bank­ ruptcy and Corporate Insolvency

20 November 1983 1986

Debt Recovery and Insolvency (Insolvency Stage II)

88. The Commission has been working on the reform of the debt recovery procedures available through the courts, with particular reference to the Australian Capital Territory. This project marks the second stage of the Commission’s work on consumer insolvency, and it follows the completion of the report, Insolvency: The Regular Payment o f Debts (ALRC 6).' The Commission’s tentative views for the reform of the law in this area were contained in the Discussion Paper Debt Recovery and Insolvency (DP 6, 1978). In addition to the tentative proposals advanced in the Discussion

Paper, the Commission is also considering an alternative proposal, details of which were discussed 1

1. See Completed Projects, above para 62-68.

38 / The Law Reform Commission

with Consultants and circulated to interested individuals and organisations towards the end of the year under review. The main differences between the alternative proposal and the approach adopted in the Discussion Paper are:

• Under the alternative proposal, the creditor would initially direct the enforcement procedures by choosing between the available enforcement avenues, but the initiative might be taken from him at any stage by the debtor applying for another form of order or a stay of execution on the grounds of hardship. • The alternative proposal abandons both the mandatory examination and the formal entry of

judgment. Instead, administrative procedures would lead to a judgment being deemed to have been entered in the absence of a defence. Such a ‘deemed judgment’ could be stayed or set aside for appropriate reasons.

The Commission is now considering the advice it has received regarding the relative merits of the proposals under consideration. Substantial progress has, meanwhile, been made on the preparation of the draft final report. This work is being led by Professor David St L Kelly, a part-time member of the Commission, with the assistance of Mr William J Tearle, Senior Law Reform Officer. The Commission expects that the final report will be completed early in 1985.

89. A significant development at State level during the year was the passage in Victoria of the Judgment Debt Recovery Act 1984. This legislation repealed those provisions of the Imprisonment of Fraudulent Debtors Act 1958 (Vic) under which debtors who defaulted in maintaining instalment payments as ordered were liable to be imprisoned without further inquiry. In place of the former procedure, the new legislation introduced a system of enforcing judgment debts by means of instalment orders. Greater use is to be made of oral examination of judgment debtors. The reforms brought about by the Judgment Debt Recovery Act 1984 are consistent with the approach tentatively adopted by the Commission in its Discussion Paper, Debt Recovery and Insolvency.

90. The Federal Attorney-General has now given the' Commission a major new reference on insolvency generally. The project covers all aspects of bankruptcy and insolvency, and applies both to individuals and to bodies corporate. It is discussed below.2

Access to the Courts

91. The Commission will be publishing two reports on this Reference, dealing separately with standing and class actions.

Standing

92. The Commission’s Report is near completion. It will examine the law relating to standing of persons to sue in federal and other courts while exercising federal jurisdiction under any law of a Territory. Broadly, the major recommendations of the Commission’s Report will concern:

• The proposed standing test to apply in: ·· actions in which a prerogative writ, an injunction, a declaration or like relief is sought; ·· most constitutional litigation; ·· actions to enforce statutory duties or to restrain a breach of statute; ·· actions to restrain a public nuisance;

2. Para 116-118.

Current Projects / 39

• the Attorney-General’s powers to intervene; • the right of interested persons to intervene; • relator actions, including the Attorney-General’s liability for costs in relation actions; • the crime and tort of maintenance;

• capacity of convicted persons to sue; • private prosecutions.

Class Actions

93. On the completion of the Standing Report, energy will be devoted to preparing the Report on Class Actions, so as to complete the whole reference on Access to the Courts. Final consultations will be held on the proposals set out in the earlier Discussion Paper on Class Actions and recent developments will be taken into consideration. The Commissioner in charge of this part of the reference is now Professor Michael Chesterman.

Aboriginal Customary Law

94. Further W ork. This reference, given in 1977, requires the Commission to enquire into the question whether it would be desirable to recognise Aboriginal customary law, and related questions. Recognition may take different forms, may be complete or partial, geographically confined to Aborigines living in tribal areas only, or not so confined, and so on. Earlier work on the Reference, including field trips, is noted in earlier Annual Reports.3 The Commission has

actively continued its program of research and consultation on the Reference.

95. Consultation. The program of regional consultants meetings initiated in 1982 was continued with meetings in Melbourne (November 1983) and Sydney (February 1984). Further discussions and consultation were held on an informal basis with consultants, relevant State, Territory and Commonwealth Government personnel, and representatives from Aboriginal organisations

including in particular the National Aboriginal Conference. Professor Crawford, the Commissioner in charge of the Reference, presented papers on aspects of the Commission’s work at Conferences in Vancouver in August 1983 and Canberra in November 1983. The Vancouver Conference was organised by the Commission on Folk Law and Legal Pluralism. At a session devoted to the ALRC’s work, papers were also given by Mr Rob Riley, Professor B Sansom and Ms P Baines, Dr R Tonkinson and Dr D Bell. Professor Crawford also held discussions on the Reference with officials from Canadian Government Departments and with Canadian Inuit and Indian organisations in Ottawa in September 1983.

96. Research and Discussion Papers. In addition to the twelve papers referred to in previous Annual Reports 4 the research staff has produced two further papers on issues relating to the reference. These are:

RP 11/12: Aboriginal Customary Law and Local Justice Mechanisms: Principles, Options and Proposals This Paper sets out examples of unofficial dispute resolution mechanisms currently operating in Aboriginal communities, and describes the two official justice mechanisms

operating (ie in Queensland and Western Australia). It also considers the experience of a number of overseas countries, in particular the United States, Canada and Papua New

3. ALRC 10, 38-40; ALRC 13, 36-37; ALRC 17, 39-41; ALRC 21, 42-44; ALRC 23, 41-43. 4. ALRC 21, 43; ALRC 23, 41.

40 / The Law Reform Commission

Guinea. Finally it sets out a range of models of justice mechanisms which might be adopted by and for Aboriginal communities. These range from according Aboriginal communities a degree of autonomy in relation to law and order either generally or in particular fields through to increasing interraction with the general legal system (eg Aboriginal assessors or other administrative or procedural changes).

RP 15: Aboriginal Customary Law: The Recognition o f Traditional Hunting, Fishing and Gathering Rights This Paper describes briefly traditionally hunting, fishing and gathering practices in Australia, inquires whether these practices may in some way be recognised at common law, and describes in detail the extent to which Federal, State and Territory legislation supports or restricts these practices. In conclusion it sets out the principles which should guide reforms designed to recognise or accommodate Aboriginal hunting, fishing and gathering practices. In doing so there is a need to achieve a balance between acknowledging the legitimate rights and interests of Aboriginal people, especially in remote areas, and other interests such as conservation and the management of natural resources.

97. In addition a further discussion paper5 was produced in April 1984. This Paper summarises the tentative conclusions in the research papers on these topics.

98. Completion o f the Reference. Drafting of the Final Report on the Reference is well advanced, and it is anticipated that the Commission will report on this reference by late 1984. The process of consultation with the Commission’s consultants, with interested organisations and individuals, and in particular with Aboriginal people and their organisations, will continue until the completion of the Report.

Evidence

99. Earlier work on this reference is summarised in previous Annual Reports.6 During the year 1983-1984 the following research papers were published:

RP 10: Admissions (S Odgers). This paper examines the law relating to evidence of admissions by parties, in both civil and criminal cases. After considering previous attempts at reform in Australia and overseas, and noting arguments advanced with respect to major iossues of debate (admissibility of admissions in criminal cases, independent verification of such admissions, the right to silence), it advances proposals for reform. In particular, the research paper proposed that a clear distinction be made between reliability and public interest concerns in relation to admissions in criminal cases.

RP 16: Privilege (I Freckelton and TH Smith). This paper deals with the right of a person to withhold or to insist on the withholding from a court of information which might assist it in its fact-finding process. Thus, the paper addresses: • the need for and status of the traditional categories of privilege, including those

protecting the confidentiality of communications between: ·· legal adviser and client; ·· doctor and patient; ·· priest and penitent; and ·· married couples.

5. (ALRC DP 20, ‘Aboriginal Customary Law — The Criminal Law, Evidence and Procedure1). 6. ALRC 17, 43; ALRC 19, 40; ALRC 21, 45; ALRC 23, 43^t5.

Current Projects / 41

• the different versions under common law and statute of the privilege against self-incrimination and their appropriateness in the 1980’s; and • the changing nature of Crown privilege and its transition into the more flexible concept of public interest privilege.

Proposals are advanced in each of these areas. These papers conclude the research paper programme.

100. Regular consultants meetings have been held to consider all research papers. These meetings have involved members of the evidence division of the Commission and the team of consultants which includes judges, law teachers, experienced trial barristers, police and psychological experts, to consider the research papers and their proposals. Work is in hand in the preparation of an interim report. It will report on the results of the Commission’s review of the law and canvass a number of issues including whether there should be a uniform comprehensive Act for

federal and Territory courts and the need for reform. It will include a draft Evidence Act which will be developed from the proposals contained in the research paper series and will also contain alternative proposals. It is intended that there will be extensive public consultation on the issues

raised in the interim report and on the draft legislation.

Sentencing (Stage II)

101. In the sentencing reference, the Commission is collaborating with the Australian Institute of Criminology. The Commission’s interim report Sentencing o f Federal Offenders was tabled in Parliament on 21 May 1980. Details of the interim report are set out in the 1980 Annual Report.1 Before proceeding to the preparation of its final report, the Commission intends to hold public hearings consult widely and arrange seminars and detailed discussions, particularly with State colleagues, on the issues raised in the interim report. The Commission will resume work on the

Sentencing reference in July 1984. Mr George Zdenkowski of the University of New South Wales takes up appointment as a full-time member of the Commission from that time. It is expected that the final report will deal with a number of questions not covered in the interim report. These are set

out in Chapter 13 of the interim report and include:

• a draft Bill for a Commonwealth Sentencing Statute; • correctional facilities for the Australian Capital Territory; • non-custodial options for the Australian Capital Territory; • plea bargaining;

• judicial review of prosecution decisions; • fines and means inquiry; • deportation; • restitution and compensation orders; • criminal bankruptcy; • pecuniary penalties payable to the Commonwealth; • non-custodial sentences such as work release, day training centres, disqualification,

confiscation and forfeiture, periodic detention, half-way houses, publicity of convictions; • pardons; • special offender groups such as migrant offenders, white collar offenders, mentally ill offenders, women offenders, Aboriginal offenders, children and young persons, military,

drug and dangerous offenders; • rights of prosecutors to address the court on sentence; 7

7. ALRC 17, 30-33.

42 / The Law Reform Commission

• pre-sentence reports; • final report on the survey of judicial officers.

Admiralty Jurisdiction

102. During the year 1983-1984 the following research paper was produced:

RP 2: Admiralty Jurisdiction in Australia: The Courts Exercising Original and Appellate Jurisdiction in Australia (S Curran). This paper convasses the possible ways in which admiralty matters might be allocated among courts. The major conclusions reached include:

• concurrent jurisdiction in all admiralty matters should be conferred on the Federal Court and State and Territory Supreme Courts; • jurisdiction over admiralty actions brought in personam should also be conferred on all courts in Australia possessing general civil jurisdiction subject to the ordinary limits of

those courts on size of claim, venue etc; • jurisdiction over admiralty actions brought in rem should also be conferred on intermediate level courts (District Courts, County Court) in those parts of Australia in which they exist subject to their ordinary limits on size of claim etc; • admiralty appeals should be heard by the Full Court of the Federal Court where, under

the ordinary rules of the system to which the originating court belongs, they would be heard by a full court. Where appeals are ordinarily heard by a single judge (i.e. from lower courts, registrars etc) they should continue to be heard by that judge.

103. Further Research. It is proposed to produce three further research papers. One, RP 1, is almost complete: it covers the scope of the Constitutional powers enabling the Federal Government to deal with admiralty matters, the subject matter which should fall within a modem admiralty jurisdiction, and the way in which that jurisdiction should be exercised, including the possible right

to arrest ‘sister-ships’. The researching and writing of this paper has proven considerably more difficult than anticipated. The basic theory underpinning the concept of a maritime lien and the right of action in rem has never been settled. The introduction of the right of ‘sister-ship’ arrest in England and some other common law jurisdictions has both accentuated this and thrown up fresh problems in ways that are not immediately apparent. It may be that many of these problems are better left to be resolved by judicial decisions. But informed decisions on this option can only be made when the problems are clearly exposed and possible legislative solutions articulated. In the third research paper it is proposed to deal with practice and procedure. The final papers planned will cover criminal jurisdiction in admiralty and prize law and procedure. The matters covered in these papers are less urgent than the questions surrounding admiralty jurisdiction in civil matters. Prize law only becomes relevant in time of war. Issues of criminal jurisdiction in Admiralty are complex and technical, but primarily the need here is to repeal continuing Imperial enactments and to ensure that related anomalies and gaps are dealt with. Accordingly it is proposed to issue a summary discussion paper covering only the civil aspects, that is the matters covered in the first three research papers.

Service and Execution of Process

104. Research Program. During the year a number of research papers have been issued to review the operation of the Service and Execution of Process Act 1901 (Cth) seeking to elicit comments from judges, practitioners and other interested parties in this very practical and important area.

Current Projects / 43

RP 1: Constitutional Considerations. (Dr M Pryles). This paper examines issues relating to the legislative competence of Parliament to enact new laws, in particular to extend the provisions of the Act to include the process and orders of tribunals, for example Small Claims Tribunals.8 RP 2: Commencing Process. (Dr M Pryles). The paper reviews the extensive case law dealing

with service in the States and Territories of commencing process in civil actions issued in another part of Australia. Proposals are advanced:

Service: Uninhibited service of process should be retained and procedural formalities minimised.

Subsequent proceedings: Proceedings subsequent to service should be permitted as if service was effected inside the jurisdiction of issue of the writ. Leave to proceed should not be required.

Objections to venue: Provision should be made for defendants to challenge the choice of venue by plaintiffs. At this stage plaintiffs will be required to prove a sufficient nexus between the forum chosen and the parties or the cause of action.

RP 3: Tribunals. (A Young). The characteristics, powers and functions of a variety of tribunals, particularly Small Claims Tribunals and Residential Tenancies Tribunals, are examined. Arguments relating to the question whether such tribunals should be enabled to have their process served and orders enforced in other jurisdictions are discussed. Proposals are made

for the insertion of a new part in the Act dealing with interstate service of process related to proceedings in such tribunals.

RP 4: Enforcement o f Judgments. (Dr M Pryles). The present scheme of the Act has worked reasonably well, but proposals are made to simplify certain procedural requirements and to clarify certain rules of law, for example in relation to the application of common law rules regarding enforcement of foreign judgments. Proposals are also made to simplify matters of

proof required when a party claims costs and interest on money judgments.

In addition an issues paper (ALRC IP 5, ‘Service and Execution of Process’, March 1984) poses a number of matters of practice and principle upon which the Commission seeks comment.

105. The Future. Two further research papers are to be issued, dealing with service of other process — criminal process, subpoenas etc — and with execution of warrants. It is expected that these will be completed by mid/late 1984. After consultations a draft Bill will be circulated with comprehensive explanatory notes detailing the reasons for the position adopted. After further consultations and submissions on this draft the final report will be prepared.

Contempt

106. Nature o f Reference. This reference, which was given to the Commission in April 1983, requires the Commission to report on the law of Contempt in its application to Federal and Territorial Courts, State Courts exercising Federal jurisdiction, and Federal Tribunals and Commissions. In formulating recommendations, the Commission is required to have regard to the

need to ensure that judicial proceedings are conducted in an orderly fashion and that courts, tribunals and their officers are not unjustifiably brought into disrepute; to the requirement in Article 19 of the International Covenant on Civil and Political Rights to the effect that everyone shall have the right to freedom of expression; and to the requirement in Article 14 of the same Covenant to the effect that everyone shall, in the determination of any judicial proceedings, be entitled to a fair

8. See ALRC 23, para 79-80.

44 / The Law Reform Commission

trial. The law of contempt is principally concerned with regulating (a) conduct within court rooms; (b) the protection of due processes of trial from activities (notably the publication of prejudicial material in the media) which might endanger them; (c) the types of criticism that can be properly levelled at judges and courts; and (d) the enforcement of court orders when there is a refusal to obey. Similar issues arise in relation to tribunals and commissions. The reference accordingly calls upon the Commission to examine a number of situations where fundamental social values are at stake, and are at times in conflict with each other. These values include the right to a fair trial before an impartial court, the right of free speech and the need to maintain the authority of the judiciary both within and outside the courtroom.

107. Issues Paper. In January 1984, the Commission published an Issues Paper entitled Reform of Contempt Law. It was distributed in a full version (42 pages) and a summary version (8 pages) and received wide media coverage. Its contents include an outline of present day contempt law, a discussion of the more controversial problems to be resolved in making recommendations regarding reform, and a list of specific questions to which individuals and organisations preparing submissions are invited to pay attention. About 60 written submissions have been received by the Commission in response to the Issues Paper.

108. W ork in Progress. For the purposes of legal research, the topic of contempt has been divided into seven sub-topics. Research Papers on two of these, relating respectively to the control of courtroom behaviour and the regulation of public criticism of judges, are well advanced. The preparation of two more, relating to the control of publicity for court cases and the special problems posed by disobedience to Family Court orders, is taking place alongside a substantial program of interviews, conducted chiefly by two persons employed by the Commission under the Community Employment Program. A concurrent study of a few selected cases — some of them well known, such as the Chamberlain case — in which media publicity may have had an impact on the ultimate verdict is also being carried. The findings derived from this empirical research will be

incorporated in the Research Papers to which they particularly relate. The Commission is also distributing detailed questionnaires on the law of contempt amongst judges, magistrates and members of tribunals. The coded responses from these will be incorporated into the Research Papers. The Commission’s consultative program also includes participating in a number of seminars and conferences, notably conferences on contempt held by the Media Law Association of Australasia and the Australian Communications Law Association and a session on Family Law contempt at the Family Court Judges’ Conference.

109. Future Activities. The Commissioner, Professor Michael Chesterman, will attend a meeting of the International Bar Association, to be held in Vienna in September. He will speak at a one day session devoted to contempt. The material accumulated at the Conference and during visits planned to other countries (notably England) will assist the Commission in obtaining a comparative perspective on the topic of contempt. It is expected that a discussion paper, or a series of short discussion papers, will be published early in 1985. The paper or papers, embodying the Commission’s provisional proposals on contempt law, will be widely distributed and a period of some months will be allowed for interested individuals and groups within the community to communicate their reactions to the proposals. During this period, the Commission will also hold public meetings and will endeavour to solicit public opinion in other ways, notably through inserting questions in a public opinion poll. It is felt that a substantial period should be allowed for feedback following publication of the Commission’s provisional proposals, as contempt law raises many issues of a highly controversial nature. During late 1984 and early 1985, the program of Research Papers should also be completed. The final Report on the reference is scheduled for the later part of 1985.

Current Projects / 45

Matrimonial Property

110. This reference, received in June 1984, requires the Commission to report on ‘whether any changes should be made to the law relating to the rights of the parties to a marriage in respect of property acquired by either or both of them, whether before, during or after their marriage, including their rights during, and upon the dissolution of, the marriage’. In particular, the Commission must consider whether a system prescribing fixed shares of some or all of the spouses’ property should be introduced and if so, the extent to which the shares could be varied by agreement or by a court.

111. The Commissioner in charge is Professor David Hambly. Work on the reference is centred in the Commission’s new Canberra office, which opened in August 1983. Mr P Waters and Ms D Shiff were appointed to the Canberra office as Law Reform Officers in early 1984 to work principally on this reference.

112. Research program. Changes in attitudes to marriage and family life have produced a world-wide upheaval in family law, and there have been widespread reforms in matrimonial property law in western countries. From a comparative study, a range of models for a law of matrimonial property emerges. There is no ideal system; each has strengths and weaknesses. A choice for Australia requires an identification of the values that it is sought to express in the

regulation of the economic aspect of marriage and a consideration of the constraints imposed by Commonwealth legislative power; the law of maintenance, succession to property on death, taxation and social security; and the general law affecting property and commercial dealings between married people and third parties.

113. Work has proceeded on marshalling the immense volume of legislation, case law and research in Australia and overseas. A distillation of this material will soon be published in an extensive Issues Paper. A series of working papers is being prepared to assist the Commission in narrowing the range of models which should be examined in detail for comparison with the present

law.

114. Empirical research There is no objective evidence about the merit of the present law and aspects of its operation. Opinions vary widely. Before the Commission can support to draw conclusions, reliable evidence must be sought about the operation of the present law and its social and economic effects. A program of empirical research, in which Mr J Schwartzkoff, a Senior Law Reform Officer has a major role, has been undertaken. It involves two elaborate projects. One is a

survey or property proceedings in all registries of the Family Court of Australia and the Family Court of Western Australia. Information is being collected from large samples of contested hearings, applications for approval of agreements under s 87 of the Family Law Act, and conferences conducted by Registrars under regulation 96 of the Family Law Regulations. This has

involved a substantial commitment of the time of Judges and Registrars and other officers of the Family Court. The Commission expects to complete a report on the survy before the end of 1984. The other project, which has been planned in a co-operative arrangement between the Commission, the Institute of Family Studies and the Family court of Australia, is a study of the

experience and attitudes of a structured sample of about 900 divorced men and women. The people in the sample group, who accepted an invitation from the Chief Judge of the Family Court to participate, are being interviewed about their financial and property arrangements during the former marriage; the arrangements made immediately after separation; their current economic circumstances; their negotiations on property and financial matters and their experience of the legal

process, and their attitudes to some policy issues that underlie the Commission’s inquiry. The Institute of Family Studies is funding the project and is primarily responsible for conducting it. The Institute hopes to provide a report to the Commission by the end of 1984.

46 / The Law Reform Commission

115. These projects are unique in design and scope. They are also expensive and ambitious, particularly because of the time constraints imposed by the reference. They could not have been attempted without the co-operation of the Family Court and the Institute of Family Studies, and the generous contribution of expertise, resources and information from the Court and the Institute is gratefully acknowledged. Beyond the immediate purposes of the reference, the findings should be of value to the Court and the Institute in performing their functions, and to the formation of policy on Australian family law and its administration.

General Insolvency Inquiry

116. On 20 November 1983 the Federal Attorney-General gave the Commission a major new reference on the law and practice of insolvency. The new reference is to relate to all insolvents — individual and corporate. The new inquiry is the first major review of bankruptcy law in Australia since the report of the Clyne Committee in 1965. It will be the first thorough review of the insolvency aspects of company law.

117. The new reference represents the third stage in the Commission’s work on the problems of indebtedness. In an earlier report, Insolvency: The Regular Payment o f Debts\ the Commission suggested that a reference be given to it on the wider aspects of bankruptcy. The Commission then said that it was time for a full revision of the Bankruptcy Act 1966, the philosophy and provisions of which go back to English law of the 19th and early 20th century. The reference directs attention to overseas developments in insolvency the most important of which is the English Cork Committee (Insolvency Law Review Committee) Report published in June 1982 after five years of

inquiry and investigations. That has been followed by a White Paper ‘A Revised Framework for Insolvency Law’ which outlines proposals for an Insolvency Bill. There have been major studies undertaken recently on the subject of insolvency in the United States and Canada. Some of the considerations which led the Commission to recommend in the earlier report alteration to the discharge and contribution rules as they affect non-business debtors are equally applicable to business bankrupts. The Commission suggested that a major inquiry into bankruptcy and insolvency laws would cover (amongst other things):

• business and non-business debtors; • exemptions, especially the bankrupt’s interest in the matrimonial home; • a simplified administration of the estates of deceased insolvents; and • a declaration of insolvency for non-business bankrupts.

118. Having regard to the current workload of the Commission, the Attorney-General left it to the Commission to decide when work on the new reference should commence. Accordingly, the Commission is giving priority to the completion of its current work on debt recovery reform"1, while preparations are being made for substantial work to commence on the insolvency inquiry as soon as possible. During the course of the inquiry, the Commission will be consulting with State and Territory Governments, the Companies and Securities Law Review Committee, the National Companies and Securities Commission, and other interested individuals and organisations.

Domestic Violence

119. This reference, which arose out of the Community Law Reform Project (see below), was

9. See para 62-68 above. 10. See para 88-90 above.

Current Projects / 47

received in June 1984 and requires the Commission to review and report on the laws in force in the Australian Capital Territory with respect to domestic violence and any related matters.

120. The Commission has consulted widely within the A.C.T. with representatives of both governmental and voluntary welfare organizations, the Capital Territory Health Commission, church groups, women’s refuges, the Family Court counselling service, doctors, lawyers, community workers and the police. The Australian Institute of Criminology in conjunction with the Canberra Women’s Shopfront will be conducting a phone-in to gauge the extent of the problem of family violence in the A.C.T. The Commission is also consulting the Family Law Council.

121. The enquiry will benefit from the experience of other States, particularly New South Wales and South Australia, which (along with Queensland and Western Australia) have passed legislation specifically aimed at providing better protection to the victims of domestic violence.

122. The Commission recognizes that the law plays only a part in confronting the problem of domestic violence and the enquiry will be directed to non-legal matters such as prevention, catering for the victims’ welfare and providing counselling and therapy programmes for offenders.

123. A discussion paper is in preparation and will be completed by mid-September. After extensive consultation both within the ACT and in other States, a final report will be prepared in early 1985.

Community Law Reform Project

124. The community law reform project, announced in 1983, was established by a reference on 21 February 1984 for the Community Law Reform Program for the Australian Capital Territory. Under this reference, the Commission can, under paragraph 4, report to the Attorney-General on suggestions made by members of the public which disclose the desirability of an amendment or amendments to a law of the ACT without extensive investigation. The reference, in paragraph 3, also caters for matters which require extensive investigation. In such cases, the Commission can report to the Attorney-General and recommend that a specific reference be made.

125. Over fifty suggestions for reform of ACT laws have been received from members of the public. Many of these relate to matters which are already being considered by the Department of Territories and Local Government or by the Attorney-General ’s Department.

126. One reference, on domestic violence in the ACT has been received from the Attorney-General under paragraph 3. Work started on this in June and should be completed by the end of 1984.

127. Under paragraph 4 of the reference on ACT community law reform program, consultative papers have been prepared on the following topics:

• Contributory negligence in breach of statutory duty and fatal accident cases; • Funeral benefits in fatal accident cases; • Limitation period in fatal accident cases; and • Loss of consortium.

128. Much of the work in the community law reform program is ‘hidden’ because it consists of liaising with government departments and making suggestions for reform in wider enquiries already being conducted by those departments. Examples are:

• Provision of recess cover under the Workman’s Compensation Ordinance 1951. This, in

48 / The Law Reform Commission

turn, generated a similar suggestion from the Chairman in relation to the Compensation (Commonwealth Government Employees) Act 1971 (Cth). • Notice provisions under s 11A of the City Area Leases Ordinance 1936. A more general reform of s 11A had already been proposed in an Administrative Review Council report.

The Law Reform Commission’s suggestion deals with an issue which was not addressed in that report. • Suggestion, through the Criminal Law Consultative Committee, to the Department of Territories and Local Government that anomalies be removed in the granting of special

licences under the Motor Traffic Ordinance 1936 and the Motor Traffic (Alcohol and Drugs) Ordinance 1977. • Suggestion to the Registrar of the Supreme Court of the ACT that there is a gap in the rules dealing with the transfer of civil proceedings from the Court of Petty Sessions to the

Supreme Court.

129. Much time is spent in consulting with government departments to ascertain whether a particular suggestion made by a member of the public is being investigated by the relevant department. In this way, a close working relationship has been established between the Law Reform Commission and the Department of Territories and Local Government and the Attorney-General’s Department. In addition, the Commission is represented on the Criminal Law Consultative Committee, the ACT Law Society’s Law Reform and Review Committee and on the Interdepartmental Co-ordinating Committee on the Law Reform in the ACT.

ACT Consultative Committee on Criminal Law Reform

130. The Annual Report 1981 described arrangements which exist in the Australian Capital Territory for institutional law reform." It reported the work of the ACT Consultative Committee on Criminal Law Reform. That Committee, convened and chaired by the chairman of this Commission, has continued to work actively through the past year. During the year it has met on fourteen occasions. The Committee reports to the Standing Interdepartmental Committee on Law Reform for the ACT. Copies of its reports are sent to the Minister for the Territories and Local Government and the Attorney-General, each of whom has responsibility for law reform in the ACT. Issues which have been dealt with by the Committee during the past year have included:

• theft • summary offences • the law on child destruction • penalties • a ‘slip rule

• aspects of the jurisdiction of the Court of Petty Sessions • introduction of on-the-spot traffic fines and points system • criminal appeal rights to the ACT Supreme Court • costs in criminal matters • sexual offences, including evidentiary aspects

The Committee continues to represent a practical and effective contribution to the improvement of criminal law and procedure in the ACT.

131. The Committee has published its first periodic report, covering the period April 1980—-31 December 1983. In future it is intended that the Committee should report annually. Copies of the

11. ALRC 19, 5-6.

Current Projects / 49

first report are available from the Law Reform Commission, which published it. The report records that about a quarter of the 40 recommendations made to the end of 1983 had been included in the draft legislation or instmctions for draft legislation. Subjects upon which the Committee has made recommendations include:

• the abolition of the distinction between felonies and misdemeanours; • permitting courts to back-date sentences; • permitting courts to take other offences into account in sentencing; • increased penalties where offender is armed; • provision regarding trans border crimes; • wider rights to costs in criminal cases successfully defended; • permitting judge to aquit in certain circumstances; • permitting the accused the right of last address to the jury; • simplification of committal proceedings; • simplification of procedure for taking pleas of guilty at committal stage; • provisions relating to protection of the process of selecting juries in criminal trials; • review of defects revealed in breathalyzer legislation.

Canberra Office

132. In August 1983 the Australian Law Reform Commission opened a branch office in Canberra for the first time. Until that office was opened the sole office of the Commission had been in Sydney. The ACT office is established under the leadership of Professor David Hambly, a full time Member of the Law Reform Commission. Most of Professor Hambly’s work is devoted to the Federal project on matrimonial property law reform. However a part of his time is to be devoted to ACT law reform. At its twenty-fifth meeting on 21 July 1983 the Consultative Committee passed a resolution in which it noted Professor Hambly’s appointment and the establishment of the Law

Reform Commission’s office in the ACT. It called to attention the inadequate resources both of the ACT branch of the Law Reform Commission and the Consultative Committee. It commended to the Attorney-General the consideration of the appointment of a further full time Commissioner of the Commission to take up duties as soon as possible in the ACT with a view to the active development of a significant program of criminal law reform for the ACT in consultation with

members of the Consultative Committee. It was further agreed that the resolution should be drawn to the notice of the Attorney-General and other relevant Ministers in order that Ministers should understand that it was not possible for the work of criminal law reform on the ACT to be done effectively without the leadership of a full time Commissioner with appropriate research facilities.

In particular, the Committee was conscious of the need, where issues of significant controversy were raised or likely to be raised by criminal law reform, to consult the community of the ACT. The Law Reform Commission itself has been careful, from the outset of its operations, to ensure widespread community discussion on matters of law reform. Within its present operations and

resources, the Committee cannot effectively engage in community consultation. This limits the kinds of projects the Committee can tackle. Within those limits, the Committee believes that there are useful tasks to be performed — but necessarily of a limited character.

50 / The Law Reform Commission

The Honourable the Attorney-General Parliament House CANBERRA ACT 2600

Dear Minister,

LAW REFORM COMMISSION FINANCIAL STATEMENTS 1983-84

Pursuant to sub-section 35(2) of the Law Reform Commission Act 1973 the Commission has submitted for audit report its financial statements for the year ended 30 June 1984, comprising— • a Statement of Activity • a Statement of Capital Accumulation

• a Statement of Assets and Liabilities • Trust Moneys — Statement of Receipts and Payments • a Statement of Sources and Applications of Funds • Notes to and forming part of the Financial Statements for the year ended 30 June 1984.

The statements, which have been prepared in accordance with the policies outlined in Note 1 to the statements, are in the form approved by the Minister for Finance pursuant to sub-section 35(1) of the Act. A copy of the statements is attached for your information.

In accordance with sub-section 35(2) of the Act, I now report that the financial statements are in agreement with the accounts and records of the Commission and, in my opinion— • the statements are based on proper accounts and records; and • the receipt and expenditure of moneys, and the acquisition and disposal of assets, by the

Commission during the year have been in accordance with the Act.

Your faithfully,

P.L. Lidbetter First Assistant Auditor-General

Addendum / 51

ADDENDUM

Completion of this Annual Report was considerably delayed by new financial and accounting requirements imposed on the Commission and other Commonwealth Statutory Authorities in 1983/84 and for following years.

The Commission put considerable effort into producing financial statements that complied with the new Guidelines for the Form and Standard of Financial Statements of Commonwealth Undertakings. Guidance was taken from the relevant Australian Accounting Standards and the Department of Finance was consulted.

The Financial Statements were presented to the Auditor General’s Office in October 1984. Because of that Office’s lack of resources, the complexity of the statements and apparent anomalies within the statements the Auditor General’s Office recommended that the Commission seek an extension of the time for the furnishing of this Annual Report. An extension of three months was sought on the basis that this would provide ample time for the Auditor General’s certificate to be obtained. The Attorney General approved this extension for the period 1 January

1985 to 31 March 1985 under Section 34(c)(6) of the Acts Interpretation Act.

The Auditor General’s Office experienced considerable difficulties processing the statements because of their lack of resources and a final set of statements was settled on 8 March 1985. The Commission is grateful to the Auditor General’s Office for the great amount of help it has volunteered in assisting the Commission to devise procedures and systems complying with the complex requirements of the new Guidelines. The new standards, as interpreted by the

Auditor-General, require many innovations in the Commission’s accounting system. The follow­ ing are examples:

• a depreciation account for Commission assets must now be created and maintained; • the accounting system, which was formerly a cash-based system must be expanded to provide more detailed information on such items as salaries and allowances and administra­ tive expenses and receipts;

• a system to calculate and record the Commission’s accrued liabilities must be created and maintained; • an expanded ledger system is now required; and • higher levels of recording and control over the Commission’s assets are now required.

Changing the Commission’s records and accounts to comply with these new requirements has taken a great amount of time. The new accounting systems will demand more of the Commission’s resources which are already spread thinly. Until these new requirements were introduced, the Commission’s accounting and financial systems have been administered by two officers within the Commission’s administration, and in fact represent only about 30% of their total duties (ie in total 60% of one officer’s time). The new requirements have meant that considerably more resources are needed and will continue to be needed. At least one more position within the Commission’s administration will need to be created. The requirements also suggest the need for the Commission to adopt a computerised financial and accounting system in place of the manual system which has

served it very efficiently up till now. It is unfortunate that the Commission is forced to seek more staff and such equipment in a financial environment in which fewer, rather than more resources, seems to be the order of the day. The Commission’s concern about the new requirements and standards is increased by its belief that the new standards and requirements are more appropriate

for governmental trading operations than for an organisation such as the Commission. It is hoped that due allowance will be made for the costs of the new system and requirements when the Commission’s budget is being set, in the same way as allowance has been made for departments and authorities (not including the Law Reform Commission, which in practice is little affected by

them) which have felt the impact of freedom of information and other aspects of the ‘new administrative law’.

Financial Statements

LAW REFORM COMMISSION

STATEMENT OF ACTIVITY For the year ended 30 June 1984

Note 1983/84

$

REVENUE Parliamentary appropriations 1 849 400

Other revenue 2 11 596

Commonwealth community employment program 7 27 456

Less Funds transferred to Statement of Capital Accumulation for capital items 3 75 695

Operating revenue 1 812 757

LESS EXPENDITURE Salaries and allowances 4 1 073 731

Employer’s superannuation contribution 5 66 590

Consultant’s fees 7 347

Travelling and subsistence 14 130 260

Rental of premises 195 109

Printing and office requisites 143 359

Telephone and postage 69 680

Library books and subscriptions 6 44 285

Incidentals and other expenditure 140 619

Commonwealth community employment program 7 27 456

Operating expenditure 1 898 436

DEFICIENCY OF OPERATING REVENUE OVER OPERATING EXPENDITURE (85 679)

LESS PROVISIONS AND OTHER UNFUNDED CHARGES Long service leave 8 51 006

Recreation leave 9 24 538

Depreciation 10 23 985

DEFICIT BEFORE ABNORMAL ITEMS

LESS ABNORMAL ITEMS

(185 208)

Depreciation previous years 10 44 349

Expensing of asset items previous years 1 65 626

Provision of long service leave previous years 8 16 855

Provision for recreation leave previous years 69 161

Expensing of library book acquisitions previous years 1,6 236 689

NET DEFICIT TRANSFERRED TO STATEMENT OF CAPITAL ACCUMULATION (617 888)

The accompanying Notes form an integral part of these Statements.

Financial Statements I 53

LAW REFORM COMMISSION

STATEMENT OF CAPITAL ACCUMULATION for the year ended 30 June 1984

Note 1983/84

$

BALANCE FROM PREVIOUS FINANCIAL YEAR 524 908

ADD: TRANSFERRED FROM STATEMENT OF ACTIVITY Funds for capital items 3

Net deficit for year

75 695 (617 888)

BALANCE TRANSFERRED TO STATEMENT OF ASSETS AND LIABILITIES (17 285)

The accompanying Notes form an integral part of these Statements.

54 / The Law Reform Commission

LAW REFORM COMMISSION

STATEMENT OF ASSETS AND LIABILITIES as at 30 June 1984

Note 1983/84

$

CAPITAL ACCUMULATION

Balance transferred from Statement of Capital Accumulation (17 285)

This is represented by:

ASSETS Current Assets Cash on hand and at bank 38 719

Prepaid payee deductions 11 1 595

Non Current Assets 13

Word processing equipment 91 083

Office equipment 35 469

Office furniture 16 286

TOTAL ASSETS 183 152

LIABILITIES

Current Liabilities Accruals 8 560

Accounts payable 12 19 335

Provision for recreation leave 9 93 699

Unexpended advance Commonwealth community employment program 7 10 982

Non Current Liabilities Provision for long service leave 8 67 861

TOTAL LIABILITIES 200 437

NET ASSETS (17 285)

The accompanying Notes form an integral part of these Statements.

Financial Statements / 55

LAW REFORM COMMISSION

STATEMENT OF SOURCES AND APPLICATIONS OF FUNDS for the year ended 30 June 1984

SOURCES OF FUNDS FUNDS FROM RECURRENT OPERATIONS Net deficit from Statement of Activity

Add funds transferred to Statement of Capital accumulation from Statement of Activity

Add Non Fund Items Provision for long service leave Provision for recreation leave Provision for depreciation

Decrease in Non Current Assets Expensing of library book acquisitions previous years Expensing of asset items previous years

Decrease in Current Assets Cash on hand and at bank

Increase in Current Liabilities Accruals Unexpended advance Commonwealth community employment program

APPLICATIONS OF FUNDS Increase in Current Assets Prepayments

Decrease in Current Liabilities Accounts payable Increase in Non Current Assets Office equipment

Office furniture Word processing equipment

$

(617 888)

75 695

(542 193)

67 861 93 699 68 334 329 894

236 689 65 626 302 315

(9 984)

55 190

8 560

10 982 19 542

64 748

1 595

10 878

11 726 16 425 24 124 52 275

64 748

The accompanying Notes form an integral part of these Statements.

56 / The Lent· Reform Commission

LAW REFORM COMMISSION

TRUST MONEYS STATEMENT OF RECEIPTS AND PAYMENTS for the year ended 30 June 1984.

The Commission did not receive any trust moneys in 1983/84.

The accompanying Notes form an integral part of these Statements

Financial Statements / 57

LAW REFORM COMMISSION NOTES TO AND FORMING PART OF THE FINANCIAL STATEMENTS FOR THE YEAR ENDED 30 JUNE 1984.

1. Statement of Accounting Policies In previous years the Commission’s financial statements were prepared on a cash basis. However, from 1983/84 the financial statements are prepared on an accrual basis, in accordance with the guidelines issued by the Department of Finance. No comparative figures for 1982/83 are provided because of this basic change in accounting policy.

The Commission’s financial statements have been prepared on a historical cost basis and are in accordance with the applicable accounting standards issued by the Australian Accounting bodies. Prior to the 1983/84 financial year all assets purchased were capitalised. From 1983/84 library books and assets valued at or less than $200 are expensed. To take account of this change in policy expenditure capitalised in prior periods has been expensed and brought to account as abnormal items in the Statement of Activity.

2. Other Revenue The major components of this item are moneys received for subscription to the Commission’s quarterly journal and the reimbursement of expenditure incurred in the previous year in relation to employment schemes.

3. Funds transferred to Statement of Capital Accumulation for Capital Items. This items consists of

$

• Office equipment 28 070

• Office furniture 16 425

• Word processing equipment 31 200

$75 695

4. Salaries and Allowances The salary and allowances paid to the Chairman are paid from a special appropriation under the control of the Attorney-General’s Department. These payments are not included in the financial statements of the Commission. The amounts shown represent the salary and allowances paid to all members and employees

of the Commission. The amount detailed below for employer contribution for long service leave for full-time members represents the amount payable to various Australian universities in respect of full-time members of the Commission who are on secondment from a university to the Commission. The

Commission is liable in these cases to pay the employer contributions for long service leave as it occurs. Below is the detailed account.

1983/84 $

• Salaries and allowances paid to employees 772 165

• Salaries and allowances paid to full-time members 208 379

• Salaries and allowances paid to part-time members 81 763

• Employer contributions to long service leave for full-time members 3 735

• Salary accruals 7 689

1 073 731

5. Employer’s Superannuation Contribution The Commission is an approved authority for the purposes of the Superannuation Act 1976 of the Commonwealth. Accordingly it is required to meet the employer’s share of the cost of benefits payable pursuant to the Act to eligible members and employees. In addition the Commission is required to meet

the employer’s share of the cost of benefits payable to members of the various university superannuation funds for those members of the Commission who have been seconded to work full-time as Commission members. The Commission discharges this liability by the periodic payment to both the Commonwealth and relevant university of amounts expressed as a percentage of the salaries of eligible members and employees, estimated by the Commonwealth and the university to be sufficient to meet the Commission’s

58 / The Law Reform Commission

share of the full accruing cost of both pensions granted on retirement or death of such members and employees and any subsequent pension increase. The Commission pays the employer contribution to the Commonwealth Superannuation fund and the relevant university superannuation fund on behalf of its members and employees. The rate of contributions to the Commonwealth is an interim rate pending the outcome of a review being undertaken by the Australian Government Actuary. The accounts do not reflect the possibility that the Commission may have some additional liability in respect of its contributions to the Commonwealth as the extent of the additional liability (if any) has not been determined. Below is the detailed account.

Employer’s Superannuation Contribution 1983/84

$

• Commonwealth fund 43 943

• University funds 22 215

• Accruals 432

66 590

6. Library Books and Subscriptions During the year ended 30 June 1984 the Commission changed its method of accounting for library books and subscriptions. Such expenditure has now not been capitalized and is included as an expense in the Statement of Activity. Expenditure in previous years which was capitalized as ‘library books at cost’ to 30 June 1983 has been charged against as an abnormal item in the Statement of Activity.

7. Commonwealth Community Employment Program Represents the expenditure incurred by the Commission’s approved the Commonwealth Community Employment Program. The costs of the program are borne by the Department of Employment and Industrial Relations and funds are advanced directly to the Commission by that Department. Below is the detailed account

Commonwealth Community Employment Program 1983/84

$ $

• Advance Received 38 438

Expenditure • Salaries 17 234

• Accrual (salaries) 439

• Administrative Expenses 9 783 27 456

• Unexpended Advance 10 982

8. Provision for Long Service Leave Represents the Commission’s estimated liability as at 30 June 1984 for the long service leave entitlements of its members and employees occurring between 1 July 1983 and 30 June 1984. The estimate is based on a qualifying period of ten years. Eligible employee service, including previous eligible service with Commonwealth or State governments or statutory authorities, is accrued from the commencement of the eleventh year of such eligible service. Payments of long service leave are funded by Parliamentary

Appropriation on an as required basis and are included as expenditure under the item ‘Salaries and allowances’ in the Statement of Activity. The Commission is currently considering its policy on the accrual of a liability in respect of long service leave and if considered necessary the effects of that change will be reflected in the 1984/85 accounts. The total liability is considered to be non current as it is not expected to be payable in the following year. Significant variations in this item may occur from year to year as Commission members and employees transfer between Commonwealth Public Service employ­ ment and Commission employment.

$

• Total amount owing in long service leave as at 1/7/1984 67 861

• Less balance owing as at 30/6/1983 16 855

• Long Service Leave accrued in 1983/84 51 006

Financial Statement / 59

9. Provision for Recreation Leave This provision is based on the value of actual entitlements at balance date and includes a leave loading component. Payments of annual leave are funded by Parliamentary Appropriation on an as required basis and are included as expenditure under the item ‘Salaries and allowances’ in the Statement of Activity.

The total provision has been shown as a current liability in the Statement of Assets and Liabilities as it is expected that this amount will be payable in the following year.

10. Depreciation Depreciation of non-current assets has been included in the financial statements for the first time for the current year. Therefore, previous year’s depreciation has been brought to account as an abnormal item in the Statement of Activity. Depreciation is calculated on the estimated life of assets on a straight-line basis

and commences on the first day of the month following the acquisition of a depreciable asset. The principal accrual rates of depreciation in use are:

• Furniture and Fittings 20%

• Office Machines and Word Processing Equipment 10%

11. Prepaid Payee Deductions Represents an amount remitted to the Commissioner of Taxation on behalf of Commission employees in respect of July 1984 income tax instalments.

12. Accounts Payable, Contractual Liabilities and Commitments Outstanding accounts and commitments as at 30 June were as follows:

$

• Unpaid Accounts 19 335

• Contractual Liabilities and Commitments 387 431

406 766

13. Non Current Assets Non current assets as at 30 June are reported at cost less depreciation:

Original Accumulated Written Down

Cost Depreciation Value

$ $ $

• Word processing equipment 129 137 38 054 91 083

• Office furniture 25 901 9 615 16 286

• Office equipment 56 134 20 665 35 469

211 172 68 334 142 838

14. Travelling and Subsistence This item does not include the travel undertaken by the Chairman on behalf of other organisations which is subsequently reimbursed to the Commission.

CERTIFICATE In our opinion, the accompanying Statement of Activity, Statement of Capital Accumulation, Statement of Assets and Liabilities, Statement of Sources and Applications of Funds and Statement of Trust Moneys have been property drawn up so as to show fairly the transactions of the Law Reform Commission for the year ended 30 June 1984 and the state of its affairs as at that date.

CHAIRMAN PRINCIPAL EXECUTIVE OFFICER

Organisation Chart o v e r v ie w o f o r g a n is a t io n

(as at 30 June 1984)

(CLASS ACTIONS & STANDING) DIVISIONS

iLBOURNE) >M RYAN, QC

Admiralty,

Court, Admit

evidence, rorcign state Immunity, Contempt of Court

Commissioner in Charge of Division on Expungement Member o f Division on Sentencing

AU RICE BYERS,

ncing. Contempt, Insolvency

Contempt

Courts, Admiralty

Commissioner in Charge of

Division on Admiralty

Standing

and Insolvency

(Standing and Class Actions) Sentencing, Service and

Matrimonial Proper Community Law Ref

Contempt

Courts, Service and Execution

Commissioner in Charge of

Commissioner in Charge of

Appendix A LAW REFORM SUGGESTIONS

This schedule contains some of the suggestions for law reform which have come to the Commission’s notice in the past year. The schedule is not meant to be exhaustive nor does it include proposals made by other law reform agencies. Although some suggestions are not new and may have been made previously, they are included because they give an indication of concern about aspects of the law. Inclusion of a suggestion does not imply any opinion by the Commission about the merits or otherwise of the suggestion. A number of the suggestions are taken from letters received by the Commission and written in relation to its community law reform program. The community law reform program is described at page 41.

Adoption

Provision should be made for persons who were adopted to obtain information concerning their birth.

Joyce Heazlewood, letter 16/4/84.

Alcohol

Need to amend defective provisions of the Liquor Ordinance (ACT) relating to the sale of liquor to persons under 18.

Justice Gallop, Supreme Court of the ACT, unreported judgment (Canberra Times, 4/4/84).

Business

Need to repeal the plethora of regulatory laws controlling business activities, particularly in view of their constraining influence upon increased economic activity.

Sir Arvi Parbo, address to The Australian Society of Corporate Treasurers (Victoria), 4/10/83.

Charity

Need to make provision that a charity intending to become involved in litigation should first obtain the fiat of the Attorney-General.

Robin Jones, letter 4/5/84.

Consumer Protection

Alleged dumping of end of shelflife food in ACT. John Drabble 15/3/84 in person.

Contract

Need to amend the law which at present provides that if A contracts with B for valuable

62 / The Law Reform Commission

consideration that B will transfer an asset to C, C is not entitled to enforce B’s obligations. Justice Rogers, Home Insurance Company v lpec Holdings Limited (unreported, 25/11/83).

Courts

Greater use should be made of written submission so as to speed up the court process and allow for more prompt judgments to be made.

Geoff Hunt, letter 26/4/84.

Criminal Law

Need for review of laws permitting money lenders to charge for return of stolen goods upon which they have lent money.

Neville Thomas, letter 20/2/84.

Suggestion that an additional category of verdict be introduced in cases concerning death, viz ‘not proven’, particularly where there is no motive, no body and no weapon.

N Mossberg, letter 5/4/84.

Need to review the law relating to suicide, euthanasia and related issues.

Letter from Humanist Society of Canberra 9/4/84.

The need to decriminalise prostitution.

Letter from Ray & Margaret Holland 5/12/84.

Criminal Law

Need for an approach to sentencing which punishes crimes endangering members of society more severely than ‘victimless’ crimes.

Stephen McLoughlin, letter 8/3/84.

Inappropriateness of punishments handed out in magistrates’ courts.

Letter JHD Daly 17/1/84.

Education

Possible need for amendment to Commonwealth Teaching Service Act 1972 to clarify powers of delegation by the Chief Education Officer of the relevant Teaching Authority.

Justice Neaves, Excell v Harris (unreported 18/10/83).

Estates and Wills

Need for provisions to reduce conflicts between executors of estates.

Robyn Kitching, letter 6/3/84.

That executors of an estate should be duty bound to inform beneficiaries of their rights under a will.

Appendix A: Law Reform Suggestions / 63

That the spouse of a deceased person should automatically receive a share of the estate. Ethel King, letter 26/4/84.

Evidence

Need to review procedures to permit controlled use of hypnosis in a court where there are grounds for so doing.

B Cudal, letter 9/3/84.

Suggest need for review of provisions such as s 10 of Crimes Act 1914 and s 264 of Income Tax Assessment Act in view of the affirmation of legal privilege in pre-trial situations.

Chief Justice Sir Harry Gibbs, Baker v Campbell (1983) 49 ALR 385, 397-8.

Need for there to be independent review of potentially controversial forensic evidence. Suggestion that a split appellate court decision should result in acquittal or re-trial, as itself being evidence of doubt in conviction.

Rev Winston D O ’Reilly, letter 3/3/84.

Expungement of Criminal Records

Need for clearance of records of convictions for minor criminal offences.

Letter from ‘A mother’ 9/2/83.

Family Law

Need to return to system relying upon ‘ fault’ in dealing with the distribution of property and the custody of children consequent upon divorce.

RC Wyatt, letter 2/4/84.

Problems in obtaining maintenance for ex-nuptial children.

Letter Susan Judge 14/6/83.

Firearms

Need for gun control in the ACT.

Letter M Mckay 6/5/83.

Industrial Law — Redundancy

Need for the legislative protection of jobs, concentrating on a right of review of an employer’s determination that the employee is redundant — a ‘requirement of good cause’ arising from the failure of established contract law adequately to account for considerations of equity and welfare of all involved, particularly the wider non-economic costs of job termination.

64 / The Law Reform Commission

Information

The need to review the whole issue of the law’s treatment of information, including copyright, sales tax, theft and intellectual property.

Graham Greenleaf, President of NSW Society for Computers and the Law, address to the Society, 4 April 1984.

Interpreters

The Commonwealth Attorney-General should make reference to the Australian Law Reform Commission to initiate a study into the circumstances in which interpreters are used in Australian legal systems, and to formulate principles which may provide a basis for Commonwealth legislation and a model for uniform practice throughout Australia.

Council of the Australian Institute of Multicultural Affairs.

Justices of the Peace

That identification be issued to all Justices of the Peace, including a numbered stamp, which should be used when the person is to authenticate something in that capacity. That a ‘Guide to Justices of the Peace’ be issued to all Justices, and regularly updated, informing them of their duties and responsibilities.

Geoff Goodfellow, letter 9/5/84.

Local Government

Local councils should be required to publish a list of complaints remaining unresolved twelve months after their making.

Frances M Durdin, letter 27/4/84.

Minors

Need to reform the law on consent of minors to medical procedures.

Letters from Family Planning Association and Stephen Walmsley, April 1984.

Real Property

Need to overcome various problems in connection with caveats, the Moneylenders Ordinance and the rule against perpetuities.

Letter MP Cummins 26/3/84.

Need to remove problems with the commorientes provisions of the Conveyancing Act 1898 (NSW) Charles Rowland 13/3/84 in person.

Appendix A: Law Reform Suggestions / 65

Various suggestions including the need to review the Landlord and Tenant Ordinance 1949, and the need to establish a legal basis to welfare rights in the ACT.

Woden Community Centre letter 20/2/84.

Need to reform enforcement of purpose clauses in residential leases in the ACT.

Letter Ed Wensing 14/2/84.

Religion

Need to review laws to ensure that religious beliefs are not offended, e.g. where taking interest upon bank deposits would offend against principles of Islamic beliefs.

Yahya Omar Malek, letter 3/2/84.

Sale of Goods

There is a need to clarify whether the sale of computer software by itself constitutes the sale of goods with the terms of the Trade Practices Act 1974 (Cth).

Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd (1983) 50 ALR 684.

Sexual Offences

Need for pre-trial diversion procedures in the case of sexual offences involving young children. Paul Kaufman, letter 7/3/84.

Need for changes in procedures and handling of incest cases so as to provide a more sympathetic and less intimidating situation for the ‘victims’ of incest.

Action for Children, letter 30/3/84.

Solicitors

That there should be some limitation upon the length of time allowed to solicitors to claim payment for work done.

Geoff Holt, letter 26/4/84.

Taxation

Need to reform taxation laws regarding community welfare groups.

Tax Concessions Handbook, South Australian Council of Social Service (1984), 12.

Suggested need to provide for greater accountability by tax agents and consultants to their clients. Charles Bush, letter 2/1/84.

Need to provide for judicial review of a s 218 notice demanding payment of tax.

Neville A Stacey, letter 15/2/84.

66 / The Law Reform Commission

Need for taxation exemption for community welfare organisations.

Ms Trish MacDonald personal communication.

Transport

Need for a uniform set of State laws to cover carriers’ liability.

Australian Road Transport Federation, submission to National Road Freight Inquiry (Australian Financial Review, 10/2/84, 9).

Need to remove special speed limits for helmetless motor cyclists.

Letter Lyall Crawford 23/5/84.

Appendix B

TERMS OF REFERENCE

CONSUMERS IN DEBT

I, ROBERT JAMES ELLICOTT, Attorney-General, HAVING REGARD TO -(a) the function of the Law Reform Commission, in pursuance of references to the Commission made by the Attorney-General, of reviewing laws to which the Law Reform Commission Act 1973 applies, namely-

(i) laws made by, or by the authority of, the Parliament, including laws of the Territories so made; and (ii) any other laws, includings laws of the Territories, that the Parliament has power to amend or repeal; and (b) the desirability of avoiding injustice to and oppression of debtors and of facilitating the

collection of debts, HEREBY REFER the following matters to the Law Reform Commission, as provided by the Law Reform Commission Act 1973, TO REPORT UPON-

(1) whether the Bankruptcy Act in its application to small or consumer debtors makes adequate provision to enable such debtors to discharge or compromise their debts from their present or future assets or earnings; (2) if the answer to (1) is no. whether any and what measures could be adopted by way of

legislation to achieve that objective; and (3) what measures could be adopted by way of legislation to provide financial counselling facilities to small or consumer debtors.

IN MAKING ITS REPORT the Commission will have regard to­ la) the community’s interest in the financial rehabilitation of small but honest debtors, and the need to ensure that creditors have an effective means of enforcing the payment of debts due to them; and (b) the function of the Commission in accordance with section 6(1) of the Law Reform

Commission Act to consider proposals for uniformity between laws of the Territories and laws of the States.

DATED this tenth day of May 1976

RJ Ell icon QC Attorney-General

68 / The Law Reform Commission

ACCESS TO THE COURTS

I, ROBERT JAMES ELLICOTT, Attorney-General, HAVING REGARD TO-(a) the function of the Law Reform Commission, in pursuance of references to the Commission made by the Attorney-General, of reviewing laws to which the Law Reform Commission Act 1973 applies, namely-

(i) laws made by, or by the authority of, the Parliament, including laws of the Territories so made; and (ii) any other laws, includings laws of the Territories, that the Parliament has power to amend or repeal, with a view to the systematic development and reform of the law, including, in particular-(i) the modernisation of the law by bringing it into accord with current conditions; (ii) the simplification of the law; and (iii) the adoption of new or more effective methods for the administration of the law and

the dispensation of justice; (b) the provisions of section 7 of the said Act which provide that, in the performance of its functions, the Commission shall review such laws with a view to ensuring that such laws do not unduly make the rights and liberties of citizens dependent upon administrative

rather than judicial decisions; and (c) criticism of the restrictions in the present law upon the capacity and right of persons to be heard in courts and proposals which have been made relating to class actions, HEREBY REFER to the Law Reform Commission, as provided by the Law Reform Commission Act 1973, for REVIEW of the laws to which the said Act applies relating to­

la) the standing of persons to sue in Federal and other courts whilst exercising federal jurisdiction or in courts exercising jurisdiction under any law of any Territory; and (b) class actions in such courts, AND TO REPORT UPON-

(a) the adequacy thereof; (b) any desirable changes to the existing law in relation thereto but having regard to any constitutional limitations on Commonwealth power; and (c) any related matter.

IN MAKING ITS REPORT the Commission will also have regard to its function in accordance with section 6(1 )(d) of the said Act to consider and present proposals for uniformity between laws of the Territories and laws of the States with a view to such proposals being considered by the States.

DATED this first day of February 1977

RJ Ellicott QC A ttorney-General

Appendix B: Terms of Reference / 69

ABORIGINAL CUSTOMARY LAWS

I, ROBERT JAMES ELLICOTT, Attorney-General, HAVING REGARD TO-(a) the function of -the Law Reform Commission, in pursuance of references to the Commission made by the Attorney-General, of reviewing laws to which the Law Reform Commission Act 1973 applies, of considering proposals for the making of laws to which

that Act applies and of considering proposals for uniformity between laws of the Territories and laws of the States; (b) the special interest of the Commonwealth in the welfare of the Aboriginal people of Australia; (c) the need to ensure that every Aborigine enjoys basic human rights; (d) the right of Aborigines to retain their racial identity and traditional life style or, where they

so desire, to adopt partially or wholly a European life style; (e) the difficulties that have at times emerged in the application of the existing criminal justice system to members of the Aboriginal race; and (f) the need to ensure equitable, humane and fair treatment under the criminal justice system

to all members of the Australian community.

HEREBY REFER the following matter to the Law Reform Commission, as provided by the Law Reform Commission Act, TO INQUIRE INTO AND REPORT UPON whether it would be desirable to apply either in whole or in part Aboriginal customary law to Aborigines, either generally or in particular areas or to those

living in tribal conditions only and, in particular: (a) whether, and in what manner, existing courts dealing with criminal charges against Aborigines should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines; (b) to what extent Aboriginal communities should have the power to apply their customary

law and practices in the punishment and rehabilitation of Aborigines; and (c) any other related matter.

IN MAKING ITS INQUIRY AND REPORT the Commission will give special regard to the need to ensure that no person should be subject to any treatment, conduct or punishment which is cruel or inhumane.

DATED this ninth day of February 1977

RJ Ellicott QC Attorney-General

70 / The Law Reform Commission

SENTENCING

I, PETER DREW DURACK, Attorney-General, HAVING REGARD T 0 -(a) the function of the Law Reform Commission, in pursuance of references to the Commission made by the Attorney-General, of reviewing Commonwealth and Territorial laws to which the Law Reform Commission Act 1973 applies; (b) the costs and other unsatisfactory characteristics of punishment by imprisonment; (c) the desirability of ensuring that offenders against a law of the Commonwealth are treated

as uniformly as possible throughout the Commonwealth in respect of the sentences imposed on them; (d) the need for a revision of laws of the Commonwealth and the Australian Capital Territory, with particular reference to the questions-

(i) whether principles and guidelines for the imposition of sentences of imprisonment should be formulated; and (ii) whether existing laws providing alternatives to imprisonment are adequate; (e) the conclusions of the Fifth United Nations Congress on the Prevention of Crime and the

Treatment of Offenders concerning the use of imprisonment, as set out in the report of the United Nations Secretariat in relation to the Congress (E.76.IV.2); and (f) the matters to be considered at the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders to be held in Australia in 1980, with particular

reference to the agenda topic relating to the de-institutionalisation of corrections, HEREBY REFER the following matter to the Law Reform Commission, as provided by the Law Reform Commission Act, 1973, FOR REVIEW AND REPORT ON the laws of the Commonwealth and the Australian Capital Territory relating to the imposition of punishment for offences and any related matters.

IN ITS REVIEW AND REPORT the Commission-(1) shall collaborate with the Australian Institute of Criminology; (2) shall have particular regard to-(a) the formulation of principles and guidelines for the imposition of a sentence of

imprisonment; (b) the question whether legislation should be introduced to provide that no person is to be sentenced to imprisonment unless the court is of the opinion that, having regard to all the circumstances of the case, no other sentence is appropriate; (c) the adequacy of existing laws providing alternatives to sentences of imprisonment; (d) the need for new laws providing alternatives to sentences of imprisonment, with

particular reference to restitution orders, compensation orders, community service orders and similar orders; (e) the need for greater uniformity in sentencing, with particular reference to laws with respect to the grading of offences and orders and with respect to processes designed to

structure discretion in sentencing by means of the establishment of guideline sentences and the use of a sentencing council, institute or commission for this purpose; (f) the laws that would be required to give effect to the recommendations of the Commission; (g) the provisions of Section 7 of the Law Reform Commission Act providing that, in the

performance of its functions, the Commission shall review laws to which the Act applies, and consider proposals, with a view to ensuring-(i) that such laws and proposals do not trespass unduly on personal rights and

Appendix B: Terms of Reference / 71

liberties and do not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions; and (ii) that, as far as practicable, such laws and proposals are consistent with the Articles of the International Covenant on Civil and Political Rights; and (h) its function in accordance with Section 6(1) of the Act to consider proposals for

uniformity between laws of the Territories and laws of the States; (3) shall-(a) consider the question whether, in the determination of the punishment for an offence, an emphasis should be placed on-

(i) the state of mind of the offender in the commission of the offence; or (ii) the personal characteristics of the offender and the need for treatment; and (b) take into account the interests of the public and the victims of crime.

THE COMMISSION IS REQUIRED to submit by 1 June 1979 an Interim Report on the subject matter of the reference dealing in particular with those aspects of the reference that are relevant to expediting and maximising de-institutionalisation of punishment.

DATED this eleventh day of August 1978

Peter Durack Attorney-General

72 / The Law Reform Commission

EVIDENCE

I, PETER DREW DURACK, Attorney-General of the Commonwealth of Australia, HAVING REGARD TO -(a) the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs, made in its Report on the Reference: The Evidence (Australian Capital Territory)

Bill 1972 that: (i) a comprehensive review of the law of evidence be undertaken by the Law Reform Commission with a view to producing a code of evidence appropriate to the present day; and (ii) a Uniform Evidence Act be drafted:

— to apply the same law of evidence to A.C.T. and to the external Territories; — as far as is appropriate, to apply the same law of evidence in all Commonwealth courts and tribunals; and — to include the matters now covered in the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901; and (b) the need for modernisation of the law of evidence used in Federal Courts, the Courts of the

Australian Capital Territory and the external Territories and Federal and Territory tribunals by bringing it into accord with current conditions and anticipated requirements; HEREBY REFER to the Law Reform Commission as provided by the Law Reform Commission Act 1973 TO REVIEW the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:

(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those Courts; and (b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.

IN MAKING ITS INQUIRY AND REPORT the Commission will have regard to its functions in accordance with sub-section 6(1) of the Act to consider proposals for uniformity between laws of the Territories and laws of the States.

Peter Durack Attorney-General

DATED this eighteenth day of July 1979

Appendix B: Terms of Reference / 73

SERVICE AND EXECUTION OF PROCESS

I, NEIL ANTHONY BROWN, Acting Attorney-General of the Commonwealth of Australia, HAVING REGARD TO the functions of the Law Reform Commission HEREBY REFER the following matter to the Law Reform Commission TO INQUIRE INTO AND REPORT UPON the adequacy of the law relating to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States and Territories having

regard to the constitutional powers of the Commonwealth with particular reference to, but not confined to, the following matters— (a) increases in the movement of persons and goods between States and Territories; (b) improvement in the facilities available to parties and witnesses for travel between different

parts of Australia; (c) the development of an Australia-wide commercial community; (d) the desirability of facilitating service and execution on an Australia-wide basis of legal process and judgments in litigation dealing with matters requiring service and execution in

more than one State and Territory; (e) the implications for the service and execution of process and judgments of the conferral of jurisdiction on State and Territory courts in matters requiring service and execution in more than on State or Territory; (f) developments in the types and structures of courts and tribunals; (g) developments in the procedures of courts and tribunals including the creation of informal

procedures for minor civil disputes and minor criminal offences; and (h) developments in legal co-operation in matters relating to the service and execution of process and judgments, but excluding matters relating to the enforcement of fines.

DATED this twenty ninth day of November 1982

N A Brown

Minister of State for Communications acting for and on behalf of the Attorney-General 29 November 1982

74 / The Law Reform Commission

ADMIRALTY

I, NEIL ANTHONY BROWN, the Minister of State for Communications, acting for an on behalf of the Attorney-General of the Commonwealth of Australia, HAVING REGARD TO THE FOLLOWING — (a) that the Admiralty jurisdiction in Australia is at present still exercised pursuant to the

United Kingdom Colonial Courts of Admiralty Act, 1890; (b) that the Constitution enables the Commonwealth Parliament to make laws conferring jurisdiction on the High Court and other federal courts in matter of Admiralty and maritime jurisdiction, and to make laws investing any court of a State or Territory with such

jurisdiction; and (c) that other countries, including Canada and New Zealand, to which the Colonial Courts of Admiralty Act, 1890 previously applied, have enacted their own Admiralty legislation in a revised and updated form; HEREBY REFER to the Law Reform Commission, for INQUIRY, REVIEW and REPORT thereon to the Attorney-General, all aspects of the Admiralty jurisdiction in Australia, and REQUESTS the Law Reform Commission, in considering this reference, (a) to have regard to the Report of the Joint Committee of the Law Council of Australia and The Maritime Law Association of Australia and New Zealand dated 22 April 1982 on Admiralty Jurisdiction in Australia, and (b) to take note of the draft Admiralty Jurisdiction Bill set out as Appendix ‘A’ to that Report, and, in particular, to

(i) make recommendations on the provisions to be included in an Australian Admiralty Act; (ii) consider whether any, and if so what, consequential amendments should be made to other Commonwealth legislation, including the Navigation Act 1912; (iii) formulate draft Rules of Court for possible application by courts upon which Admiralty

jurisdiction may be conferred by the Admiralty Act as recommended by the Commission; (iv) consider whether Australia should enact its own law of Prize and, if so, formulate recommendations for such a law; and (v) to formulate a draft Explanatory Memorandum that could be used as an aid in the

interpretation of any Bill for an Act to give effect to recommendations by the Commission pursuant to these Terms of Reference.

NA Brown

Minister of State for Communications acting for and on behalf of the Attorney-General 23 November 1982

Appendix B: Terms of Reference / 75

CONTEMPT

I, GARETH JOHN EVANS, Attorney-General of Australia, HAVING REGARD TO — (a) the existing law of contempt; (b) the provisions of Article 19 of the International Covenant on Civil and Political Rights, that everyone shall have the right to freedom of expression;

(c) the provisions of Article 14 of the International Covenant on Civil and Political Rights, that everyone shall, in the determination of any judicial proceedings, be entitled to a fair trail; (d) the need to ensure that judicial proceedings are conducted in an orderly fashion; and (e) the need to ensure that courts, tribunals and their officers are not unjustifiably brought into

disrepute.

In pursuance of section 6 of the Law Refrom Commission Act 1973, HEREBY REFER to the Law Reform Commission the following matters for report — (a) whether the law and procedures relating to contempt of court applied by Federal Courts and courts of the Territories, and by State courts in relation to the exercise of Federal

jurisdiction, are adequate and appropriate; (b) whether the laws of procedures relating to contempt of Tribunals and Commissions created by or under laws of the Commonwealth are adequate and appropriate; (c) the appropriate legislative means of reforming those laws and procedures, having regard to

any constitutional limitations on Commonwealth power; and (e) any related matter.

DATED 7 April 1983

Gareth Evans Atiorney-General

76 / The Law Reform Commission

MATRIMONIAL PROPERTY

I, GARETH JOHN EVANS, Attorney-General of Australia, HAVING REGARD TO — (a) the desirability of treating the parties to a marriage fairly and equitably; and (b) the Report of the Joint Select Committee on the Family Law Act, tabled in Parliament on 28 August 1980, which recommended that a full study be carried out by the Law Reform

Commission of the legal implications of the introduction in Australia of ‘a full matrimonial property regime’,

In pursuance of section 6 of the Law Refrom Commission Act 1973, HEREBY REFER to the Law Reform Commission the following matters for report — (a) whether any changes should be made to the law relating to the rights of the parties to a marriage in respect of property acquired by either or both of them, whether before, during

or after their marriage, including their rights during, and upon the dissolution of, the marriage, and in particular — (i) whether the parties to a marriage should be entitled to a fixed proportion of some or all of that property;

(ii) if so, whether any variation of that entitlement is appropriate, and the criteria by which such variations can be ascertained; (iii) the extent, if any, to which the parties to the marriage should be able to vary that entitlement by agreement; and (iv) the extent, if any, to which a court should be entitled to vary that entitlement, taking

into account individual circumstances; (b) the appropriate legislative means of reforming that law; and (c) any related matter.

IN PERFORMING its functions in relation to this Reference, the Commission shall — (i) consult the Family Law Council, the Institute of Family Studies, the States, the Northern Territory, and Norfolk Island and such other persons and bodies as it thinks appropriate; (ii) consider and report on Australian community attitudes; and (iii) consider and report on the relevant law of any other country.

THE COMMISSION IS REQUIRED to report not later than 31 December 1985.

DATED 16 June 1983

Gareth Evans Attorney-General

Appendix B: Terms of Reference / 77

COMMUNITY LAW REFORM PROGRAM FOR THE AUSTRALIAN CAPITAL TERRITORY

I, GARETH EVANS, Attorney-General of Australia, HAVING REGARD TO (a) the functions of the Law Reform Commission (the Commission) under the Law Reform Commission Act 1973 (the Act); (b) the provision made in section 6 of the Act for the Commission to suggest to the

Attorney-General matters to be referred to the Commission; and (c) the desirability of involving the community of the Australian Capital Territory in the reform of the laws of that Territory, HEREBY REFER to the Commission the following program, to be known as the Australian Capital Territory Community Law Reform Program:

1. The Commission is to call for suggestions from members of the public as to laws of the Territory that should be reviewed and for proposals for their reform; 2. The Commission is to consider such suggestions and report on them to the Attorney- General;

3. Where it appears to the Commission that a suggestion relates to a matter on which it is desirable for the Attorney-General to issue to the Commission a specific reference under the Act the Commission is to include in its report a recommendation to that effect; 4. Where it appears to the Commission that a suggestion discloses the desirability of an

amendment or amendments to a law of the Territory and a conclusion to that effect is possible without an extensive investigation, the Commission is to report to the Attorney-General to that effect indicating the nature of the amendment or amendments it considers desirable.

DATED this 21st day of February 1984.

Gareth Evans Attorney-General

78 / The Law Reform Commission

GENERAL INSOLVENCY INQUIRY

I, GARETH EVANS, Attorney-General of Australia, HAVING REGARD TO: (a) the Report of the Law Reform Commission (No 6) entitled ‘Insolvency: The Regular Payment of Debts’ in which it was suggested that a general reference be given to the Commission on insolvency; and (b) the desirability of examining all aspects of the law and practice relating to insolvency, in pursuance of section 6 of the Law Reform Commission Act 1973, HEREBY REFER to the Law Reform Commission —

the law and practice relating to the insolvency of both individuals and bodies corporate, in particular — (i) the provisions of the Bankruptcy Act 1966, in its application to both business and non-business debtors; (ii) Parts VIII, X, XII of the Companies Act 1981 so far as they are related to or are

concerned with the insolvency of companies; (iii) any related matter. IN PERFORMING its functions in relation to this Reference, the Commission shall: (a) consult the States and the Northern Territory, the National Companies and Securities

Commission, the Companies and Securities Law Review Committee and such other persons and bodies as it thinks appropriate; (b) have regard to (i) overseas developments in bankruptcy and company law and practice, including in

particular the recommendations contained in the report of the United Kingdom Insolvency Law Review Committee; and (ii) the agreement made on 22 December 1978 between the Commonwealth and the States for establishing and implementing a co-operative scheme for the administration

of laws relating to companies and to the securities industry (which agreement forms the Schedule to the National Companies and Securities Commission Act 1979).

DATED this twentieth day of November 1983

Gareth Evans Attorney-General

Appendix B: Terms of Reference / 79

AUSTRALIAN CAPITAL TERRITORY — DOMESTIC VIOLENCE

I, GARETH EVANS, Attorney-General of Australia, HAVING REGARD TO — (a) the Community Law Reform Program for the Australian Capital Territory; and (b) the need to make adequate provision for the prevention of domestic violence, that is violence done or threatened to be done to a person who is married to, or living as husband

and wife with althought not legally married to, the person who does or threatens to do the violence, in pursuance of section 6 of the Law Reform Commission Act 1973, HEREBY REFER to the Law Reform Commission, at its suggestion as part of the Community Law Reform Program, the following matters for review and report:

(a) the laws in force in the Australian Capital Territory with respect to domestic violence and matters arising from domestic violence; and (b) any related matters.

IN PERFORMING its functions in relation to this Reference, the Commission shall -(a) consult the Australian Institute of Criminology, the Family Law Council and such other persons and bodies as it thinks appropriate; and (b) take into account any other laws or proposals for laws that are or may be relevant.

DATED this 29th day of May 1984.

Gareth Evans Attorney-General

Index

ALRC 11, see Unfair Publications ALRC 12, see Privacy and the Census ALRC 14, see Lands Acquisition and Compensation ALRC 15, see Sentencing of Federal Offenders ALRC 16, see Insurance Contracts ALRC 18, see Child Welfare ALRC 2, see Criminal Investigation ALRC 20, see Insurance Contracts ALRC 4, see Alcohol, Drugs and Driving ALRC 6, see Consumer Insolvency ALRC 7, see Human Tissue Transplants ALRC 9, see Complaints Against Police ALRC 22, see Privacy Aboriginal Customary Laws

current project, 94-98, Table 4 research and discussion papers, 48, 96-97 Access to the Courts current project, 91, Table 4 Admiralty Jurisdiction, 102-103, Table 4 Adoption — law reform suggestions, see Appendix A Alcohol, Drugs and Driving Report (ALRC 4) Table 3,

61

Alcohol — law reform suggestions, see Appendix A Appointments, see Law Reform Commission, the Australian Australian Capital Territory

Canberra Office 132 Community Law Reform 124-129 Consultative Committee on Criminal Law Reform, 130-1 Domestic Violence 119-123 Business — law reform suggestions, see Appendix A Census, see Privacy and the Census Charity — law reform suggestions, see Appendix A Child Welfare Report (ALRC 15) Table 3 Class Actions, see Access to the Courts Commissioners, see Law Reform Commission, the

Australian Community Law Reform Project, 124-129 Compensation and Lands Acquisition see Lands Acquisition and Compensation Complaints Against Police Report (ALRC 1 and 9)

Table 3, 59 Completed Projects, 58-83 Consortium, loss of, 127 Consumer Insolvency

Stage I — The Regular Payment of Debts Report (ALRC 6) 62-68, Table 3 Stage II — Debt Recovery and Insolvency, 88-90, Table 4 Consultants, 44 Contempt

current project, 11-12, 106-109, Table 4 Contract — law reform suggestions, see Appendix A Contributory Negligence, 127 Courts — law reform suggestions, see Appendix A Criminal Investigation Report (ALRC 2) 60, Table 3 Criminal law — law reform suggestions, see Appendix

A

Criminal law Reform see A.C.T. Consultative Committee on Criminal Law Reform

Current Projects, 87-132 Debt Recovery and Insolvency, see Consumer Insolvency Defamation, see Unfair Publications (ALRC 11) 70 Discussion papers, see publications of the Commission Domestic Violence, 119-123, 126 Education — law reform suggestions, see Appendix A Empirical research, 4-27, 108. 114-115 Estates and Wills — law reform suggestions, see

Appendix A Evidence current project, 99-100, Table 4 research papers, 30, 69 Evidence — law reform suggestions, see Appendix A Family law — law reform suggestions, see Appendix A Firearms — law reform suggestions, see Appendix A Foreign State Immunity Report (ALRC 24) 83-86,

Table 3 Freedom of information, 53 Functions, see Law Reform Commission, the Australian Funeral benefits, 127 General Insolvency, 116-118, Table 4 Human Tissue Transplants Report (ALRC 7) 69,

Table 3 Implementation, 2, 58-86 Industrial law and Redundancy — law reform

suggestions, see Appendix A Information — law reform suggestions, see Appendix A Insolvency, see Consumer Insolvency, General Insolvency Institute of Family Studies, 15 Insurance Contracts

Stage I — Insurance Agents and Brokers Report (ALRC 16) 25-27, 76, Table 3 Stage II — Insurance Contracts Report (ALRC 20) 25-27, 78, Table 3 Interpreters — right to, 28 Interpreters — law reform suggestions, see Appendix A Justices of the Peace — law reform suggestions, see

Appendix A Lands Acquisition and Compensation Report (ALRC 14) 49, Table 3 Law Reform Commission, the Australian

consultants, 44-46 criticism of, 22 divisions. Table 2 empirical research, 4— 27, 108, 114-115 freedom of information, 53 functions, 29, 49 history, 1-3 meetings, Table 1 members, 31 new appointments, 36-38 non-lawyers, 19-21 public consultation, 27,54-55 publications, see Publications of the Commission reappointments, 33-35 remuneration of members, 42 staff levels, 43

References are to paragraph numbers in this report

Index / 81

Law Reform Digest, 51, Law Reform Suggestions, 52, Appendix A Limitation of actions, 127 Local Government — law reform suggestions, see

Appendix A Matrimonial Property current project, 13-15, 110-115, Table 4 Members, see Law Reform Commission, the Australian Migrant Issues, 28 Minors — law reform suggestions, see Appendix A Non-lawyers and law reform, 19-21 Papers, see publications of the Commission Privacy

Report (ALRC 22) 80-82, Table 3 and defamation, see Unfair Publication and the Census Report (ALRC 12) 71, Table 3 Public Consultation, 54-55 Publications o f the Commission, 47-51

reports list, 58-86 and inside front cover discussion papers list, inside front cover research papers list, 48 working papers list, inside front cover

see also under title to each reference Real property — law reform suggestions, see Appendix A References

current program, see Current Projects terms of reference, see Appendix B

Reform, 50 Religion — law reform suggestions, see Appendix A Reports, see publications of the Commission and title to each reference

Research papers, see publications of the Commission Sale of Goods — law reform suggestions, see Appendix A Sentencing — law reform suggestions, see Appendix A Sentencing of Federal Offenders

Stage I Report (ALRC 15) 73-75, Table 3 Stage 11, 101, Table 4 Service and Execution of Process current project, 104-105, Table 4 Sexual offences — law reform suggestions, see

Appendix A Solicitors — law reform suggestions, see Appendix A Staff, see Law Reform Commission, the Australian Standing to Sue, see Access to the Courts Suggestions for Law Reform, 52, Appendix A Taxation — law reform suggestions, see Appendix A Terms of Reference, see Appendix B Transport — law reform suggestions — see Appendix A

Unfair Publication Report (ALRC 11) 70, Table 3 Visits, 56 Working papers, see publications of the Commission

References are to paragraph numbers in this report