The Government will:
The Government is working to improve people's access to the law by making laws easier to find and understand, and by assisting in the provision of community legal education.
As modern society has become more complex, the legislation governing society also has increased in complexity. While legislation addresses complex issues, there is no reason why legislation should be incomprehensible or inaccessible.
Legislation must be readily available and readily understood if community awareness and understanding of the law is to increase. Better access to legislation is crucial for improved access to justice.
The Government already has introduced a number of measures to improve the way in which legislation is developed, and the accessibility of legislation once it is passed by Parliament. Some of these initiatives, which are detailed in this Justice Statement, are in response to recommendations made in recent independent reports, including the House of Representatives Standing Committee on Legal and Constitutional Affairs' Report, Clearer Commonwealth Law, and the Administrative Review Council's Report, Rule Making by Commonwealth Agencies. The Justice Statement will build on these initiatives.
The Government has encouraged a range of consultative processes for considering new legislation. In its program for simplifying corporations law and rewriting taxation law, the Government has adopted a process of public consultation and testing for the readability of draft legislation. This process may be a model for other law revision projects.
Consultation on proposed legislative schemes also is undertaken regularly by a number of Commonwealth Departments. For example, the Department of Human Services and Health regularly undertakes wide consultation with industry, consumer groups and the general community in the development of programs, such as aged care and child care programs. Regular community consultation also is undertaken by the Department of Immigration and Ethnic Affairs which, for example, recently established the Business Skills Advisory Panel to facilitate consultation on business visa policy. The Panel includes business community members and State and Territory government representatives. In March 1994, following extensive consultations with business and community groups, the Panel presented a report to the Government entitled Migration of Business People to Australia: Directions for Change. The Government has legislated to implement most of the recommendations contained in the Report, including the simplification of selection criteria for Business Skills visa applicants in July 1994, and the introduction of two new visa subclasses in April 1995.
The Disability Discrimination Act 1992 is a further example of the Commonwealth's consultative approach in formulating legislation. In the development of that legislation the Commonwealth distributed a number of discussion papers. Much of that material was made available in alternative formats including Braille, audio tape and versions of papers designed for people with intellectual disabilities. The Government also engaged a consultant to conduct extensive consultations with the disability community on the need for, and the possible form of, the legislation. In addition, the papers were distributed to other interested parties including State and Territory Governments, business, industry and unions and the general community. A specific paper was produced discussing the possible impact of the legislation on employers.
To allow for consideration of the detail of the legislation the Disability Discrimination Bill 1992 was introduced in May 1992 and remained open for further consultation until its passage in October of that year. The Bill also was made available in alternative formats such as Braille and audio. The passage of the Bill represented the culmination of a very extensive consultation process.
Under the Bill, the agency responsible for the particular law will be required to consult with those likely to be affected by that law, or representative bodies of those likely to be affected. This will ensure that business will have an opportunity to make submissions about the law and will be aware of proposed changes that will affect their operations. The legislation should ensure better, more acceptable and less frequently changing delegated legislation.
Parliamentary scrutiny of legislation is undertaken by a number of House of Representatives and Senate committees, such as the House of Representatives Standing Committee on Legal and Constitutional Affairs, the Senate legislation committees, the Senate Standing Committee for the Scrutiny of Bills, and the Senate Standing Committee on Regulations and Ordinances. While some Committees simply scrutinise legislation and refer any concerns back to the relevant House of Parliament, others can invite submissions and hold public hearings to determine the community's response to proposed legislation. The Committees will then report back to the relevant House on their findings.
The Government has supported the recommendations of the House of Representatives Procedure Committee's 1994 report, About Time, which has led to the establishment of the Main Committee to provide another forum for the scrutiny of primary legislation by the House of Representatives. The Government has also adopted the policy that, wherever possible, bills should be introduced in one sitting of Parliament for passage in the next sitting. The adoption of this policy maximises the opportunity for Parliament to consider legislation before it comes on for debate. The number of bills referred to committees, particularly in the House of Representatives, has increased since the adoption of that policy.
Commonwealth drafting agencies now make a concerted effort to use a `Plain English' style of drafting. This involves the use of simple language, flow charts, and readers' guides designed to make legislation easier to follow. Further improvements will be made by using Schedules and tables, rewriting drafting handbooks, training officers of Departments and Government agencies in drafting and instructing techniques, clarifying when material should be in Acts or other legislation, and testing draft legislation in appropriate cases. An improved design and layout for Commonwealth Bills and Acts will be introduced.
As resources permit, drafters are giving advice to policy-makers at an early stage in the development of legislative policy, to ensure that the policy they develop will not require excessively complex drafting.
This project is more than just a plain English rewrite. As well as rewriting the legislation in a manner that is more easily understood, the simplification process aims to simplify and improve the law itself. Every provision is being tested for continued usefulness and relevance, as well as clarity. Presentation also is being improved dramatically.
The Attorney-General introduced the First Corporate Law Simplification Bill into the Parliament in December 1994. The Bill will improve the operation of the law in relation to proprietary companies, company registers and buy-backs of company shares. In particular, it will improve the operation of the law and reduce costs for small business. The Bill also will insert a small business guide into the Corporations Law to help the owners and managers of small companies understand their rights and obligations under the Corporations Law. To facilitate access to the guide by small business, it is envisaged that the guide will be made available as a separate publication.
The Task Force's work on its second Bill is well advanced. This Bill will be exposed for public comment in 1995. After the second Bill commences, small companies will conduct their business largely under simplified provisions of the Corporations Law. Taxation Law Rewrite
Taxation law is the most litigated area of the law in Australia. By its nature, it affects the lives of most Australians. The existing tax laws, particularly the Income Tax Assessment Act 1936, are complex and in a form not easily understood by most people.
Recognising the urgent need for reform in this area, and responding positively to a recommendation of the Joint Committee of Public Accounts, the Government has undertaken a major tax law improvement project. This $5 million project already has begun the task of simplifying the huge body of income tax law. Over the next three years, the income tax law will be rewritten in plain English, with a structure readily followed and easily adapted to future needs. Opportunities also will be taken to change rules and provisions that are out of touch with current commercial reality or add unnecessarily to compliance costs.
The Tax Law Improvement Project released its first draft Bill for public comment in September 1994. The Bill was passed by the Parliament in late March 1995. It replaces the provisions of the Income Tax Assessment Act 1936 relating to substantiation of claims for deductions and the documentation that must be retained by taxpayers. It uses clear everyday language, highlights key principles and has navigational aids to assist and guide the reader.
Building on this reform, a further draft Bill has just been released for public comment. This draft contains the structure of a complete replacement Income Tax Assessment Act with a new framework and numbering system. The draft presents very clearly the core income and deduction provisions and rewrites some provisions dealing with capital deductions. The framework shows where further rewrites will fit into the new structure. After taking account of comments received, the Bill will be introduced into the Parliament late in 1995.
To complete the new Act, two further major Bills are proposed for introduction in 1996 and 1997. Once again, there will be wide public consultation and feedback before introduction of the legislation.
The guiding principle for these reviews is that legislation should not restrict competition unless it can be demonstrated that:
The review of the Copyright Act is one further step towards the fulfilment of the Government's commitment made in the Creative Nation Cultural Policy Statement to reward creative Australians, to increase investment by copyright industries and to maintain access to copyright materials for all Australians.
The Commission is consulting widely with relevant Commonwealth and State departments and agencies, consumer representatives, community welfare organisations, and other people with a special interest in the programs concerned. To date, the Commission has published two reports on child care and aged care. The Government is considering its response to those reports. The Commission has commenced its review of the Department's disability programs with the release of its first discussion paper scheduled for June 1995.
Priorities for review and redrafting of legislation will be determined according to the significance of the legislation, the extent to which the legislation impacts on the community, and the clarity and readability of the existing provisions. Reviews will be undertaken as and when resources permit. Legislation will be redrafted by a new Law Revision Unit to be established for this purpose.
The Unit will initially review and rewrite the Acts Interpretation Act 1901 and undertake any amendments recommended by the review of the Freedom of Information Act 1982 being conducted by the Australian Law Reform Commission and the Administrative Review Council.
The current Commonwealth Acts Interpretation Act does not fulfil this role as well as it could. The current Act has:
As some of the issues involved will be of general interest, the Attorney-General's Department will shortly release a Discussion Paper on the Commonwealth Acts Interpretation Act. This Paper will provide information and raise key policy issues in relation to the Act. On the basis of responses to the Paper, the Act will be reviewed and amended.
The findings of the joint review will form the basis for any necessary drafting amendments to be undertaken by the new Law Revision Unit.
Law Revision Units have been established in the Office of Parliamentary Counsel and in the Office of Legislative Drafting in the Commonwealth Attorney-General's Department to undertake the drafting of legislation as it is reviewed.
The Legislative Instruments Bill provides a comprehensive regime for Parliamentary scrutiny of all delegated legislation. To date, only some delegated legislation has been subject to Parliamentary scrutiny. All legislative instruments will now be tabled in Parliament and, if they are not tabled, they will cease to be enforceable. They will also be subject to disallowance by the Parliament. The Bill provides for deferral of the disallowance process for up to six months, to enable defects in legislative instruments to be remedied.
One way to achieve national equity is to make legislation simpler through uniformity. In a number of key areas, the Commonwealth and the States are working together to develop laws to ensure that people will be treated equally, no matter where they live. As well as ensuring fairness and consistency, legal costs will be reduced. Furthermore, greater harmony of laws will assist in building a national market for legal services, which is integral to the reforms designed to make the practice of law more competitive and more efficient.
The Commonwealth has secured the support of all States and Territories to develop a Model Criminal Code. At the Justice Forum in August 1994, the Prime Minister made a strong commitment to implementing the Code before 2001. This was followed by a joint statement from each Premier and Chief Minister in November 1994 supporting the development of the Code.
The Commonwealth is committing more resources to ensure timely Commonwealth completion of the Model Criminal Code. The Commonwealth's commitment will provide the lead to the States and Territories to make the necessary changes to their laws to meet the agreed aim of implementing the Code by 2001.
The Model Criminal Code will simplify and improve the criminal law. It is being drafted in `plain English' style and will reduce substantially the size and complexity of our criminal statutes. It will update and improve existing laws and provide for a national approach to fighting crime by removing jurisdictional differences that can be exploited by criminals to escape justice. The Code will play its part in making the justice system more efficient.
Again, consultation with the community in the development of these laws is important. One of the great benefits of the Code is that it is being developed within an established consultative network that draws upon the views of a wide range of people and groups from all over Australia. This network has provided, and will continue to provide, quality input into the development of fairer and more effective criminal laws. Each stage of the Model Criminal Code is developed through public seminars and contact with groups that have a special interest in the topics being considered.
The Government has enacted chapters one and two of the Code, dealing with criminal responsibility. Chapters dealing with fraud and theft offences will be enacted next.
A first step has been taken in developing a uniform approach to restraining orders. Most jurisdictions have implemented a legislative scheme under which people who have obtained a restraining order from their original State or Territory are able to retain the protection of the order in a new State or Territory.
As detailed elsewhere in this Statement, magistrates' courts are now able to vary Family Court access orders to suit circumstances where violence has occurred.
The Commonwealth has taken the lead in seeking to establish uniform evidence laws. The Commonwealth Evidence Act 1995 now applies in proceedings before the federal courts and, with the agreement of the Australian Capital Territory Government, in the Territory's courts. Some parts of the Act apply in every court in Australia.
The Government expects that its Evidence Act 1995 will provide the basis for uniform modern evidence laws applying in all courts in Australia. All State and Territory Attorneys-General have given in-principle support for introducing substantially uniform evidence laws. New South Wales, which has been working with the Commonwealth on the evidence law reforms, is to introduce an Evidence Bill into its Parliament soon.
Uniformity in the rules governing such things as information disclosure in the financial sector is very important to both consumers, who will have a greater chance of understanding their rights, and to the banks, credit unions and other financial institutions who provide services across State/Territory borders.
The High Court decisions prompted renewed discussions between Commonwealth and State Attorneys-General. The Attorneys have agreed that a working group that had been considering the laws in New South Wales, involving New South Wales and the Australian Capital Territory, would be supplemented by representatives from the other jurisdictions. The New South Wales Attorney-General has requested that the State Law Reform Commission consider the implications of the recent High Court decisions in its report on defamation. The draft Bill that it produces will then form the basis for a renewed attempt to gain agreement on uniform defamation laws.
Acts of Parliament, delegated legislation and other legislation are currently accessible through the Commonwealth's computerised database known as Statute and Cases Automated Legal Enquiry (SCALE). A number of Government agencies are investigating further methods of making information available electronically. Examples of approaches being taken are the Department of Social Security's development of a computerised information network, and the Department of Veterans' Affairs' electronic provision of electronic information. A number of agencies are also investigating the development of Internet facilities.
SCALE terminals and printers are placed in all Commonwealth Government Bookshops across the country where citizens can search the database free of charge and print legislation or parts of legislation at a minimal cost.
The Government is also considering the possibility of extending low-cost access to all legislative materials through community services such as regional libraries and schools and through the use of diskettes, CD-Roms or other means.
Regular consultation with community groups, legal professionals and educational institutions will ensure that access to SCALE information is provided in a manner that meets community needs.
Under the present system, much delegated legislation is not required to be published. Those pieces of delegated legislation that must be published often are difficult to find. Accordingly, rules established by delegated legislation are not easily accessible to the people they affect and are sometimes referred to as `bottom drawer' legislation.
The Legislative Instruments Bill 1994 provides for the establishment of an electronic register for all delegated legislation. The Bill will ensure that all delegated legislation, relating to a broad range of matters from the regulation of nursing homes to prohibitions on imports into Australia, will be readily available and accessible to the public. This legislation will, if passed by the Parliament, commence on 1 January 1996.
To be enforceable under this new scheme, every piece of delegated legislation, including any made before the scheme commences, will need to be registered in a computerised Federal Register of Legislative Instruments. Pre-existing delegated legislation will cease to be enforceable if it is not registered.
By 1 March 1998, all delegated legislation will, for the first time, be available in one accessible location, the Federal Register of Legislative Instruments.There will be widely available access to the Register. People will be able to search the Register and obtain copies of registered instruments through terminals at Commonwealth Government Bookshops and, eventually, through libraries and other public access points. This will be a vast improvement on current access through Gazettes.
The Network will carry information on Department of Social Security services and payments, and other government services, as well as local community information. It also will allow public access to an electronic communication system, to enable individuals and groups to communicate, share information and ideas, and establish links. Access to the Network will be via personal computer and modem.
A number of public access points will be set up in the research locations. These will be placed in community and government outlets, such as libraries and community centres.
The Community Information Network has the potential to provide the community with ready access to a wide range of Federal Government legislation and associated guidelines, including access to regular updates. These can be provided electronically, in a form and style aimed at improving public understanding and access to all aspects of the law.The publicly accessible electronic mail and newsgroup facilities of the Network have the capacity to provide the community with the means to provide Government agencies with feedback on the law, both its content and practice. These and other aspects of the Network will be tested and evaluated over the course of the next twelve months.
As the Commission approached its twentieth year, the Government thought it appropriate to reflect on the role and structure of the Commission, particularly since a number of other bodies with some law reform functions have been established over the years since the Commission began operation. In 1993-94, the House of Representatives Standing Committee on Legal and Constitutional Affairs undertook an inquiry into the role and function of the Law Reform Commission and the relationship between the Commission and other bodies with a law reform or similar function.
The Committee's report, Law Reform - The Challenge Continues, which was released in May 1994, acknowledged the Commission's important contribution to Australian law and unanimously recommended that the Commission should continue. The Government welcomes the Committee's findings and firmly supports the continued work of the Commission, which provides valuable advice to Government and the Parliament on law reform.
The Government will introduce new legislation to improve the structure and functions of the Australian Law Reform Commission in line with recom-mendations made by the House of Representatives Standing Committee on Legal and Constitutional Affairs.The new legislation, which will be redrafted in modern accessible style, will enable the Commission to be given references to consider proposals for complementary Commonwealth and State/Territory legislation. It will require the Commission to have regard to relevant international obligations and to take into account any implications of its recommendations on lowering the cost of justice.
The Committee also considered the relationship between the Commission and other State and Commonwealth law reform agencies such as the Family Law Council and the Administrative Review Council and recommended that inquiries be jointly conducted between these agencies where appropriate. This recommendation is already being implemented; for example, the Law Reform Commission and the Administrative Review Council have recently cooperated in a review of funding programs administered by the Department of Human Services and Health and are currently conducting a joint inquiry into the Freedom of Information Act.
The Government has developed a number of initiatives to inform the community about the law in key areas. The Justice Statement provides for broad education campaigns to complement existing initiatives. These campaigns will ensure that people know how to access relevant information.
The Commonwealth, in cooperation with legal aid commissions and community legal centres, has established a computer register of community legal education initiatives. The Register contains information about community legal education products and programs produced by legal aid commissions, community legal centres, courts and tribunals, government departments and other providers of legal services. The Register is on computer disks that can be accessed with personal computers. It is available for a small fee to all legal service providers throughout Australia, whether government or non-government. Copies of the Register can be obtained through the Commonwealth Attorney-General's Department. Legal aid commissions, most State Libraries, and a number of community legal centres can access the Register.
The development of the Register is one of a number of projects that the Commonwealth has undertaken with legal service providers to improve the coordination of community legal education.
The work of community legal centres on community legal education includes:
The additional funds will enable the development of community education resources for many Australians whose needs are not currently being met by the legal system.
The Prime Minister established the Civics Expert Group in June 1994 to provide the Government with a strategic plan for a non-partisan program of public education and information on the Australian system of Government, the Australian Constitution, Australian citizenship and other civics issues.
The Expert Group consulted widely with education authorities, political parties and other expert and interested bodies of individuals in the field, such as the Constitutional Centenary Foundation.
The Expert Group's report, Whereas the People..., was released in December 1994. It described an urgent need for improved knowledge of civics and citizenship in the community, based on an extensive national survey. The Group recommended a range of measures spanning all formal education sectors and the broader community.
The Commonwealth will commit more than $22 million over four years to the development of high quality teaching resources in the education system to ensure that civics education, including education about our legal system, is entrenched as a fundamental and effective part of the curriculum in Australian schools and other learning institutions.As part of a wider effort to improve community understanding of civics and citizenship matters, the Expert Group recommended a community education initiative involving the development and distribution of resource materials by community groups. The Government supports this proposal and will ensure that balanced, accessible and accurate information is available to those in the community who are interested in improving their understanding of Australia's system of government and its operations, but who are not involved in formal education. The level of community interest in these matters is expected to be high in the lead-up to the Centenary of Federation.
As a component of the civics education, the Government will provide $2.3 million to make information available for the broader community, including for people who have completed their formal education but who would like to know more about their system of government and citizenship issues. This information will be distributed by community groups.The Prime Minister has written to the States, Territories and the Australian Local Government Association commending the Expert Group's report to them. The Commonwealth Government looks forward to receiving their cooperation in this important initiative.
The Government is committed to undertaking broad community education programs to ensure that there is the maximum possible understanding of the reforms in this Statement and the availability of Government services generally. To ensure that this information is widely accessible, pamphlets on access to justice will also be produced in a range of community languages for people of non-English-speaking backgrounds as part of its translating and interpreter services.
There will be an extensive process of community education to inform the public of important reforms to the Family Law Act.
As detailed elsewhere in this Statement, legal aid commissions are to receive extra funds to increase their advice services. The Commissions will be required to promote the availability of these services.
The Australian Taxation Office has a scheme known as `Tax Help' that works with relevant community organisations to ensure that taxpayers, particularly elderly people, Aboriginal and Torres Strait Islander people, people of non-English-speaking backgrounds and people with disabilities, are given assistance to fill out their tax returns and understand their tax obligations. A similar scheme is planned for the Child Support Agency.
Two major initiatives, aimed at explaining peoples' legal rights and obligations, are the development of the Taxpayer's Charter and the Child Support Agency Charter. Together with improved education programs, these will enhance public knowledge of, and access to, the taxation and child support systems.
Other avenues used for extensive public education are publications on various areas of tax and child support, tax rulings that explain interpretation of legislation, public seminars and an inquiries service. The Taxation Office is also developing plans to make information, such as taxation rulings, available electronically to tax agents who already lodge electronic tax returns.
These initiatives have been designed to increase public awareness of the laws that govern us and ensure that people have an understanding of their rights and responsibilities under the law. Access to the law in this way will reduce dependence on lawyers and the courts and better equip people to understand and resolve problems or disputes.
 Child Care for Kids, Report No 70 (Interim), Australian Law Reform Commission, 1994
 The Coming of Age, Report No 72, Australian Law Reform Commission, 1995
 The Legislative Instruments Bill is discussed in detail later in this chapter.
 Norfolk Island has not done so. Western Australia is in the process of implementing legislation.
 These reforms are detailed in `Families'.
 Theophanous v Herald and Weekly Times Ltd and Stephens v West Australian Newspapers Ltd
 See `Legal Aid'
 More detail on these reforms is provided in the chapter on `Families'.
 See `Legal Aid'