SENATOR GARETH EVANS  SHADOW ATTORNEY-GENERAL THE SENATE EMBARGO 12 NOON  23 FEBRUARY 1983

7/83

LAW, JUSTICE AND LIBERTY FOR ALL AUSTRALIANS:

LABOR'S LAW REFORM POLICY

Shadow Attorney-General, Senator Gareth Evans, today launched

in Melbourne the ALP's Law and Justice Policy, a comprehensive

package of 40 separate commitments covering the areas of human

rights, legal aid, family law, accident compensation, freedom

of information and court structure and procedures (see

attached policy document).

This was the first in a series of three legal policy launches:

Labor's Business Regulation Policy will be launched in Canberra

tomorrow by Senator Evans and Business and Consumer Affairs

Spokesman John Brown (Lobby Restaurant 11.45) ^  and the

Constitutional Reform Policy will be launched by Senator Evans

in Melbourne on Monday next (Law Institute, 12.30).

At today's launch, which followed a meeting of Labor Attorneys-

General and Shadow Attorneys-General from around Australia (one

of a series of such meetings held regularly over the last two

years),Senator Evans was flanked by Victorian Premier and

Attorney-General John Cain, new New South Wales Attorney-General

Paul Landa, and South Australian Attorney-General Chris Sumner.

Senator Evans said that the presence of the State Attorneys-

General, and their active role in formulating many of Labor's

national policy commitments, demonstrated the commitment of an

incoming Labor Government to working in close cooperation and

consultation with the States in law reform matters.

He listed nine areas where cooperative action in the form of

joint legislation or jointly established machinery was

specifically planned: accident compensation, legal aid, human

rights and anti-discrimination laws, law reform machinery,

a uniform court system, family law, uniform laws, computerised

legal information retrieval, and residual constitutional links

with the U.K. (see Appendix to policy document).

2.

Â».

Senator Evans said that the four general themes underlying the

policy were equal access to the law, protection of fundamental

rights and liberties,  effective adjustment of the law to

social and economic change, and improved law reform machinery.

Senator Evans said that the civil liberties record of the

Fraser Government had been "an abominable mixture of

authoritarianism and lethargy".

He cited in particular the sacking of A1 Grassby as Community

Relations Commissioner,  the failure to ratify International

Human Rights treaties,  the attempt to stifle information in the

Defence Papers case,  the resurgence of film censorship activity,

and a series of "alarming" provisions in legislation relating to

atomic energy,  narcotics control,  national security and the new

Crimes Commission.

"Mr Fraser's McCarthyist kicking of the communist can has made

commitment to free speech and individual liberty a real issue

in this campaign.  Only the Labor Party has a comprehensive

set of human rights policies and the will to implement them".

Senator Evans said that the key elements of Labor's Human Rights

Policy were:

.  full and unequivocal ratification of all applicable

International Human Rights Conventions and Treaties;

.  Enactment of a national Bill of Rights;

.  Enactment at both Commonwealth and State levels of

detailed legislation for the protection of human

rights in areas of particular complexity where this

is necessary, e.g. race and sex discrimination, privacy

and police powers;  and

.  creation of a more effective national Human Rights Commission,

with the teeth and personnel not only to educate people

about human rights standards but to effectively enforce

them.

4

3.

- > >

Senator Evans said that where State laws and the machinery

for the protection and advancement of human rights were

working well,  Labor in Government would not seek to apply

Commonwealth law or machinery just for the sake of it.

"But where a State shows no willingness to behave with

decency,  dignity or restraint in human rights matters^we will

not hesitate to use all the constitutional powers at our

disposal to apply,  in the interests of all Australians,  more

civilised standards."

MELBOURNE CONTACT :  Senator Gareth Evans

(03) 62 2521

AUSTRALIAN LABOR PARTY

L A W

A N D

J U S T I C E

Policy Launched by

Senator Gareth Evans

Shadow Attorney-General

Melbourne,  23 February,  1983

AUSTRALIAN LABOR PARTY

L A W

A N D

J U S T I C E

Policy Launched by

Senator Gareth Evans

Shadow Attorney-General

M e l b o u r n e ,  23 F e b r u a r y ,  1983

AUSTRALIAN LABOR PARTY

LAW AND JUSTICL POLICY

SUMMARY OF PROPOSALS

A. EQUAL ACCESS TO THE LAW

1. Legal Aid 1

1.1 Review legal aid funding with a view to more cost- 1

effective delivery of legal aid by State Legal Aid  Commissions and the Australian Legal Aid Office, in  particular by increasing the proportion of legal aid  services provided by salaried lawyers.

1.2 Review the Federal-State legal aid machinery with a 2

view to establishing a new national Legal Aid CommÂ­ ission on a cooperative basis to coordinate the delivery of legal aid services and to ensure  .  uniformity.

1.3 Increase the funding to community legal centres.  2

1.4 Review availability of funding via interest on 2

solicitors' trust accounts.

2. Access to Courts and the Law 3

2.1 Seek to reform the law of costs so to minimise the 3

financial deterrent to the defence and assertion of legal rights.

2.2 Reform of the law of standing to ensure effective 3

access to the courts,  especially in environment  protection and other major public interest matters.

2.3 Pursue greater simplicity and wider public avail- 4

ability of Federal laws.

3. Courts and Tribunals 5

3.1 Seek the establishment,  in cooperation with the 5

States,  of a single uniform system of courts throughout Australia.

3.2 Act to reduce the costs and the delays involved 5

in legal proceedings.

3.3 Promote the development of alternatives to courts.  6

3.4 Ensure the final abolition of appeals from State 6

courts to the Privy Council.

3.5 Widen the range of aids to statutory interpretation. 6

B. PROTECTION OF FUNDAMENTAL RIGHTS AND LIBERTIES

4. Human Rights 7

4.1 Enact a National Bill of Rights. 7

4.2 Strengthen the Racial Discrimination Act and introduce 7 a Sex Discrimination Act in conjunction with the Office of Women's Affairs.

ii

4.3 Extend the role, jurisdiction and enforcement 8

powers of the Human Rights Commission,

4.4 Review the terms of Australia's ratification 8

of the International Covenant on Civil and Political Rights.

5. Criminal Justice 9

5.1 Review the structure, functions and powers of the 9

Crimes Commission.

5.2 Enact a Federal Criminal Investigation Act to 9

clarify and codify police powers and ensure the adoption of fair procedures.

5.3 Establish a Federal Sentencing Council to promote 10

sentencing practices and penalties for Federal Â·   offenders.

5.4 Reform the law and procedure governing sentencing 10

and parole for Federal offenders

5.5 Investigate the feasibility of establishing a 11

Directorate of Public Prosecutions as a semiÂ­ independent prosecuting agency.

6 .  Security and Intelligence 12

6.1 Reform the legislation governing ASIO. 12

7. Citizen and Government: Administrative Law 13

7.1 Expand the jurisdiction of the Administrative 13

Appeals Tribunal,  the Federal Court under the  Administrative Decisions (Judicial Review) Act and the Ombudsman in accordance with recommendaÂ­ tions of the Administrative Review Council.

7.2 Rewrite the Freedom of Information Act 1982 to 13

implement fully the principles of open government.

C. RESPONDING TO SOCIAL AND ECONOMIC CHANGE

8 .  Family Law 14

8.1 Seek the reference of powers,  or a constitutional 14

amendment,  to ensure a unified family law jurisdiction in the Family Court.

8.2 Enact the Family Law Amendment Bill 1981 with certain 15  additional amendments.

8.3 Establish the Matrimonial Property Inquiry. 15

8.4 Establish a National Maintenance Collection Agency 16 to ensure the effective collection and enforcement of maintenance, consistent with Social Security  administration and policy.

8.5 Ensure adequate provision of judges and counsellors 16 in the Family Court to minimise the delays and maximise the rate of settlement of disputes without  the need for contested proceedings.

iii

8.6 Review the funding for marriage counselling  organisations to ensure that counselling continues  to be available to all those who need it.

16

8.7 Seek early implementation of the U.N.. Convention  on the Recovery Abroad of Maintenance 17

8.8 Review the laws and administrative procedures  relating to de facto relationships with a view  to ensuring consistency in approach

17

9. Accident Compensation

Progressively establish an integrated Commonwealth-  State no-fault scheme.

18

10. Uniform Law Reform 20

10.1 Seek early agreement with the States on uniform  defamation law. 20

10.2 Take initiatives to establish effective uniform  legislation in areas of national need. 21

IMPROVED LAW REFORM MACHINERY

11. The Law Reform Process 22

11.1 Establish a National Law Reform Advisory Council 22

11.2 Establish a full-time Secretariat to serve the  Standing Committee of Attorneys-General and the  National Law Reform Advisory Council.

22

11.3 Increase support for the Australian Law Reform  Commission and seek the early implementation of  its outstanding reports.

23

ÃÂ   .4 Encourage the maximum public participation in  the law reform process.  23

APPENDIX:  24

Law Reform and Intergovernmental Relations

Summary of proposals involving joint Commonwealth-State  action.

1 .

1 .  I.R'GAL AID

Legal aid is the single most critical factor in ensuring

that all Australians are able to defend or assert their

legal rightsÃ¢ÂÂ  Without legal aid, lawyers are impossibly

expensive for lower and middle income earners,  who simply

cannot afford to pursue legal remedies or exercise their

legal rights.

Labor will revitalise the legal aid system to ensure that

the maximum resources are available and that legal advice

and representation are provided by the most cost-effective

means possible.

Labor will -

1.1 Review legal aid funding with a view to more cost-effective

delivery of legal aid by State Legal Aid Commissions and

the Australian Legal Aid Office, in particular by increasing

the proportion of legal aid services provided by salaried

lawyers.

Demand for legal aid is steadily increasing,  and State

Legal Aid Commissions are having to make their means tests

even more stringent than before. The Commonwealth's

financial provision for legal aid (including the Aboriginal

Legal Aid Services) is $46.1 million;  legal aid accounts for

almost one-quarter of the whole Attorney-General's Department

Budget ($38.3 million out of $161.8 million for 1982-83).

Our primary objective,  given budgetary constraints, will be

to make the existing legal aid dollar go further. Research

by the South Australian Legal Services Commission in 1979-80

showed that salaried lawyers can do equivalent work to private

practitioners for less than half the cost in family and civil

law matters and for less than one-third of the cost in criminal

cases. No subsequent research has seriously challenged these

conclusions,  yet in 1981-82 74% of total Commonwealth legal

aid expenditure went to private practitioners. Labor believes

that this balance must be redressed:  increasing the proportion

of legal aid services provided by salaried lawyers will enable

many more people to receive legal aid at the same level of

government funding.

2.

1.2 Review the Federal-State legal aid machinery with a view

to establishing a new national Legal Aid Commission

on a cooperative basis to coordinate the delivery of

legal aid services and ensure uniformity.

The Commonwealth Legal Aid Commission was abolished by the

Fraser Government in 1981. Labor believes that there is a need for a

joint Federal/State supervisory body to ensure that legal aid

services funded by the Commonwealth are equally available

in all parts of Australia. The cooperative companies and

securities scheme,  with the National Commission answerable

to a Ministerial Council - in this case the Standing

Committee of Attorneys-General - may provide the administrative

model. The proposed Commission would be a relatively small-scale operation but with essential functions in monitoring

the availability of legal aid State by State, ensuring the

best use of available finances,  coordinating research and

the exchange of information,  and reducing administrative

duplication between State Commissions.

1.3 Increase the funding to community legal centres.

Community legal centres,  like Fitzroy Legal Service and

Redfern Legal Centre,  are strikingly cost-effective and

uniquely accessible as a source of legal advice and

representation.  They provide free services to large

numbers of people who simply would not otherwise have

access to legal advice, yet the Commonwealth's contribution

in 1982-83 to these centres (numbering over 50 nationally)

is a mere $450,000fcompared to a total legal aid budget of

$46.1 million. Labor will seek to significantly increase

this funding.

1.4 Review availability of funding via interest on

solicitors' trust accounts.

Solicitors are currently obliged to deposit a portion of

their trust accounts in a special account managed by their

State law societies, the interest on which helps fund

legal aid. Interest is not paid, however,  on the rest

ÃÂ¿ ÃÂ solicitors' trust accounLs(which amount to many millions

of dollars. In cooperation with the States, Labor will

seek to achieve the payment of interest on these trust

accounts, and its utilisation for funding legal aid ,  law

foundations and solicitors' guarantee funds.

3.

2. ACCESS TO COURTS AND THE LAW

Improving legal aid is only one part of achieving the

objective of equal access to the law. Changes to legal

institutions and procedures are essential if rights and

remedies created by law are to be exercised.

Labor will -

2.1 .  Seek to reform the law of costs so as to minimise

the financial deterrent to the defence and assertion

of legal rights.

At present the rule that "costs follow the event" means

that most litigation carries a huge risk of potentially

crippling costs.  In the absence of unlimited financial

resources of a kind available only to corporations and

a few individuals,  prudence demands that legal action .

not be pursued unless success is almost certain. This

means that many people with good claims are simply

denied redress.  Important questions of costs also arise

in relation to administrative tribunals. Labor will

review costs rules as they operate in courts and tribunals

within the Commonwealth's jurisdiction, with a view to

ensuring that no-one is prevented from pursuing a bona

fide claim.

2.2 .  Reform of the law of standing to ensure effective

access to the Courts, especially in environment

protection and other major public interest matters.

At present,  unless a sufficient private financial interest

can be shown,  an individual has no right to bring a claim

in the public interest to restrain damage to the environment

or infringement of public rights.  Following completion

of the Australian Law Reform Commission's current reference

on the rules of standing,  Labor will develop proposals

for wider access to courts and tribunals within Commonwealth

jurisdiction to enable representative individuals and

organisations to argue cases of this kind. Labor will also

explore means of ensuring redress for multiple small

claimants in consumer,  civil rights,  discrimination, welfare,

environment and similar matters.

4.

2.3 .  Pursue greater simplicity and wider public availability

of Federal laws:

The complexity of Federal legislation means that most

members of the public are unable to understand their

rights and obligations even if they can obtain copies

of the legislation itself. Labor will explore means of

simplifying drafting techniques,  and making summaries of

the law and of legal rights under Federal law readily

available to the public.

5.

3. COURTS AND TRIBUNALS

Our court system badly needs an overhaul.  Cases take too

long to get to court,  and when they eventually get there

proceedings are protracted and costly because of limited

sitting hours and legal formalities. At the same time,

there is persistent confusion about the jurisdictional

boundaries between State Supreme Courts and the Federal

courts,  notably the Federal Court and Family Court.

Labor will -3.1 .  Seek the establishment, in cooperation with the States,

of a single uniform system of courts throughout Australia.

Labor is committed to the integration of the present

bewildering miscellany of State,  Federal and territorial

courts into a single national court system. A proposal to

enable such integration has been developed by a Standing

Committee of the Australian Constitutional Convention, with

significant Labor Party participation and support. This

proposal will be put to the Constitutional Convention

in Adelaide in April,  and appears likely to receive significant

bipartisan support.  A Labor Government would seek its

early implementation in cooperation with the States.

3.2 .  Act to reduce the costs and delays involved in legal proceedings:

Delays in cases coming to trial are unacceptable in most

jurisdictions,  particularly in the case of serious criminal

offences where unconvicted persons routinely spend many

months in gaol before trial. The Australian Institute

of Judicial Administration and the Victoriant  N.S.W. & S.A.

Governments are all engaged in programs to investigate

solutions to court delays. Labor will pursue early and

uniform implementation of their findings in courts within

the Commonwealth jurisdiction. Particular consideration will be given

to the need for more judges,  longer sitting hours,

shorter vacations and streamlined court procedures.  The

legal profession,  too,  must be encouraged to promote speedy

justice and to exercise restraint in raising fees.

6.

3.3 Â·  Promote the development of alternatives to courts.

A salutary development in recent years has been the

emergence of a whole variety of grievance-remedying

mechanisms as alternatives to the courts.  Small claims

tribunals,  Ombudsmen,  social security and town planning

tribunals,  anti-discrimination agencies and, most

recently, community justice centres have all done much

to simplify and speed up the legal process.  Labor

will seek to ensure that wherever possible, claims are

determined in forums such as these which are informal,

accessible and cheap.  A major task will be to publicise

their existence and to maximise their availability at times

and places convenient to the public.

3.4 .  Ensure the final abolition of appeals from State courts

to the Privy Council.

Labor has long been committed to making the High Court the

final court of appeal in all matters.  Appeals from the

High Court to the Privy Council were abolished by the

Whitlam Government in 1975, and State governments agreed in

1982 to abolish appeals from State courts. Labor will seek

the early implementation of uniform legislation to complete

this process.

3.5 .  Widen the range of aids to statutory interpretation.

The question of what materials should be available to the

courts and the public in interpreting statutes is the

subject of continuing debate. Committee reports, explanatory

memoranda and second reading speeches can all be of assistance

in appropriate cases in ascertaining the purpose of statutory proÂ­

visions. Labor will seek to formally widen the range of aids that may be

employed in interpretation of Conmonwealth statutes, at the same time

ensuring that they are equally available to all who need

them.

7.

4. HUMAN RIGHTS

The protection of basic human rights and political liberties

throughout Australia is a fundamental objective of the Labor

Party. What is needed is a government which will ensure real

protection,  through determined legislative and administrative

action, of the rights of individuals and groups.

Labor will -4.1 .  Enact a national Bill of Rights.

Labor will give priority to the enactment of a judicially

enforceable national Bill of Rights,  initially in legislative

form but ultimately as part of the Constitution itself. The

primary role of such a Bill of Rights would be to set a general

standard against which legislative enactments and executive

behaviour,  both at Commonwealth and State levels,  could be

tested and,  if found wanting,  modified or overturned.

The Bill should also,  if drafted in succinct and accessible

terms,  play a significant educative role in alerting the

community to the nature and importance of those civil and

political rights which have been traditionally regarded as

crucial in civilised societies.

4.2 .  Strengthen the Racial Discrimination Actt

and introduce a Sex Discrimination Bill in conjunctiÃÂ¿n

with the Office of Women's Affairs.

The Racial Discrimination Act has suffered progressive

emasculation since its introduction by the Whitlam Government

in 1975, most recently with the demise of the separate Office

of Community Relations. The legislation has made a significant

difference to the climate of race relations in Australia but

it has weaknesses which can and must be remedied. Senator Ryan's

Sex Discrimination Bill has been debated in the Senate and will

also be implemented as a matter of priority. No Federal measure

in this area will in any way infringe upon those constructive

developments which have been taking place in N.S.W., Victoria,

and South Australia in the field of anti-discrimination law.

8.

4.3 .  Extend the role, jurisdiction and enforcement powers

of the Human Rights Commission.

The Human Rights Commission established by the Fraser Government

has been largely window-dressing,  a substitute for

effective human rights action. Labor will thoroughly

review the legislation governing the Commission with a

view to extending its jurisdiction,  in particular over

the States;  strengthening its powers to gather evidence,

compel conciliation and initiate litigation; and rationalÂ­

ising its relationship to Employment Discrimination

Committees and State anti-discrimination agencies.

4.4 .  Review the terms of Australia's ratification of the

International Covenant on Civil and Political Rights.

Australia's ratification of the Covenant in August 1980

was made subject to a. series of reservations and declarations

which severely weakened the force of the Covenant in Australia.

In particular,  the Covenant has no application at all to the

conduct of State governments.  Labor will urgently review

those terms with a view to an unqualified ratification.

Labor will also review progress on the signature and

ratification of other international human rights treaties

and act to secure accession as soon as possible.

9..

5. CRIMINAL JUSTICE

Labor is committed to the protection of individual rights

and liberties in areas of police investigation and the

criminal process.  At the same time,  Labor recognises

the vital importance of adequate investigative and

inquisitorial powers to eradicate crime.

Labor will -

5.1 . Review the structure, functions and powers of the

Crimes Commission.

Labor supports the concept of a Crimes Commission with

sufficient powers to continue and widen the vital

investigative work commenced by the Costigan Commission,

in the areas of organised crime,  official corruption

and tax evasion.

The legislation passed by the Federal Parliament in

late 1982, ultimately against Labor opposition, does

not sufficiently limit the jurisdiction of the

Commission, nor provide adequate safeguards for

individuals. This will be a subject for early consultation

with State Attorneys-General with a view to establishing

a truly effective and acceptable national Commission.

5.2 .  Enact a Federal Criminal Investigation Act to clarify

and codify police powers and ensure the adoption of

fair procedures.

The Australian Law Reform Commission in 1975 recommended

a legislative code specifying rights and duties, at the

Federal level, in relation to arrest, bail, interrogation,

search and seizure, identification procedures, electronic

surveillance and the use of criminal intelligence records.

The Criminal Investigation Bill 1981, which would have

partly implemented those recommendations,was not debated

at all during 1982. That Bill will be immediately reviewed

and revised with a view to its early reintroduction.

10.

5.3 .  Establish a Federal Sentencing Council to promote uniform

sentencing practices and penalties for Federal offenders:

Labor will establish a Federal Sentencing Council,  as

recommended by the Australian Law Reform Commission in

its 1980 Interim Report on the Sentencing of Federal

Offenders. The functions of the Sentencing Council

wild include the following:

.. review of present sentencing practices concerning

Federal offences and offenders;

.. the development of publicly available sentencing

guidelines to promote uniform treatment of Federal

offenders;

.. the review of existing statutory penalties provided

in Commonwealth law concerning Federal offences;

.. the monitoring of minimum standards for the treatment

of Federal prisoners in State and Territory institutions

and otherwise.

In formulating general sentencing policies and practices

for the Federal criminal justice system, the Sentencing

Council would, over a period of time, almost certainly

have an impact upon State and Territorial sentencing

practices. It is anticipated that State and Territorial

authorities will in due course wish to become involved in

the Council,  which would lead ultimately to greater

uniformity in sentencing at all court levels.

5.4 .  Reform the law and procedure governing sentencing and parole

Labor will implement the other reforms recommended by the

ALRC regarding the law and procedure of sentencing and parole.

Specific objectives include:

(i) the maximum use of non-custodial sentencing options;

(ii) standardisation of non-parole periods and remissions; and

(iii) reform of the Federal parole system, with a view to

its ultimate abolition and replacement by a more

rational,  uniform, determinate and fair system for

the release of Federal offenders.

11.

5.5 Investigate the feasibility of establishing a Directorate

of Public Prosecutions as a semi-independent prosecuting

agency.

Labor will investigate the feasibility of separating the

two basic functions of the Crown Solciitor's Division,

those of general Commonwealth solicitor and prosecuting

body, and establishing a separate prosecuting authority

along the lines of the U.K. Director of Public Prosecutions.

We believe there are significant benefits in having a serais Ã¢ÂÂ

independent agency of this kind, with primary responsibility

for instituting prosecutions but ultimately answerable to

the Attorney-General.  The Victorian Government has recently

established a Directorate of Public Prosecutions on this

model.

12.

6 .  SECURITY AND INTELLIGENCE

6.1 .  Reform the legislation governing ASIG.

Labor is committed to a full revision of the 1979

ASIO legislation to precisely define and limit the

jurisdiction of the Organisation,  and to ensure maximum

public and private accountability consistent with full

recognition of democratic rights and liberties. Labor

will implement a five-part system of public accountability  involving -

.. complete accountability of ASIO to its Minister,

except that the Minister should have no access to

the content of individual files;

.. complete information and access for appropriate

senior members of the Opposition;

.. regular judicial audits with access to and scrutiny

of individual files as well as general operations;

.. complete financial accounting to the Auditor-General ;  and

.. reasonably detailed Annual Reports to the Parliament

on the nature and extent of ASIO activities.

Following the decision of the High Court in the Scientology

case,  it is evident that there needs to be a better

mechanism for ensuring effective redress for individuals

claiming to be prejudiced by ASIO activities outside its

charter or operating guidelines. We will review the existing

law with a view to significantly expanding the jurisdiction

of the Security Appeals Tribunal in this respect.

.  .  13 .

7. THE CITIZEN AND GOVERNMENT: ADMINISTRATIVE LAW

Administrative law has been undergoing a continuing process

of reform since the early 1970s.  But significant further

reforms are necessary if individual rights - particularly the

right to seek review of decisions made by government - are to

be firmly established and if government is to be truly accountÂ­

able to the Australian people. The reforms needed are two-fold:

to expand access to the formal review mechanisms,  by making

whole new areas of decision-making subject to review,  and

to make the statutory procedures work in a way that is both

meaningful and accessible to ordinary men and women on the

receiving end of departmental decisions.

Labor's purpose is not so much to encourage a review of every

single decision, but rather to ensure a sufficient level of

review to keep decision-makers up to the mark.

Labor will -7.1 .  Expand the jurisdiction of the Administrative Appeals Tribunal,

the Federal Court under the Administrative Decisions (Judicial

Review ) Act^and the Ombudsman in accordance with

recommendations of the Administrative Review Council,

Labor is concerned to ensure that public administration and

decision-making do not grind to a halt through excessively

complex and cumbersome review procedures, but we believe

nevertheless,  that the Administrative Review Council has

established to date an excellent record of sound advice on

necessary reforms to legislation and procedures, and we will

be closely guided by the ARC'S recommendations in continuing to

improve the system of administrative law, and in continuing to expand the  range of decisions which are effectively reviewable.

7.2 .  Rewrite the Freedom of Information Act 1982 to implement

fully the principles of open government.

The Senate Standing Committee on Constitutional and Legal

Affairs made over 100 recommendations regarding the

proposed Freedom of Information legislation. The Attorney-

General accepted only a few of them; some others were forced

on him in the Senate. Labor will implement fully the

outstanding recommendations of the Committee to ensure

that freedom of information operates in practice as well

as in name.

14.

8 .  FAMILY LAW

Family law directly affects more Australians - both adults

and children - than any other single area of law. The

Joint Select Committee on the Family Law Act recommended

in 1980 a series of important reforms relating to Family

Court jurisdiction and administration, children's welfare

and financial and property proceedings. Yet the present

Government has allowed these and other vital reform

proposals to languish for years on end. It is vital that

the Family Law Act be subject to constant review and updating

to ensure that it keeps pace with complex and changing social

conditions and attitudes.

Family law reform will be a top priority under a Labor

Government.  Labor will proceed at the earliest opportunity

with the following measures:

8 .1 Seek the reference of powers, or a constitutional amendment,

to ensure a unified family law jurisdiction in the Family Court.

Unless the necessary legislative powers are referred by the

States, or the Constitution changed,  the jurisdiction of

the Family Court over custody and property will always

remain controversial in the difficult marginal cases.

Labor will pursue in the first instance the question of

a reference of powers,  although the complete failure of

the non-Labor States to cooperate in this area over the past

six years makes unanimous State agreement unlikely. Failing

a successful reference, Labor will seek an amendment to

ensure that the Family Court has clear jurisdiction over -

(a) all custody, access and guardianship matters

relating to children;  and

(b) all issues relating to property rights and

obligations arising out of the marital

relationship.

15 .

8.2 .  Enact the Family Law Amendment Bill 1981 with certain

additional amendments:

The Family Law Amendment Bill was introduced in the

Senate on 20 October 1981 and has had a mere three hours

debate since then. The Bill will be treated as priority

legislation under Labor. It will be reintroduced at the

earliest opportunity with the addition of certain amendÂ­

ments foreshadowed by Senators Evans and Missen. The Bill

will implement the following changes:

.. the jurisdiction of the Family Court over children

and property is widened;

.. proceedings in the Family Court will be open to the

public,  unless the judge orders

otherwise;

.. reports of proceedings in the Family Court may be

published provided that individuals are not identified;

.  .  there will be no obligation on parties or their

lawyers to attend where a dissolution is undefended;

.. any wishes expressed by children are to be taken

into account,  except in cases where wishes have

been expressed under duress;

.. in making decisions on custody and access the Court

will have regard to a list of prescribed criteria

relevant to the welfare of the child;

.. the Family Court will be able to take superannuation

benefits into account in making property orders;

.. property orders will be capable of variation when

circumstances change.

8.3 .  Establish the Matrimonial Property Inquiry.

The Joint Select Committee recommended the establishment

of an Inquiry to examine matrimonial property law. The

Attorney-General announced in October 1981 that such

an Inquiry would be established: 16 months later it has

still not come into being.  Matrimonial property is one  of the most difficult and,  with custody and access,  one

of the most important areas of family law. Labor will

immediately establish the Inquiry,  announce its terms of

reference and set a time limit within which the Inquiry

must report.

16:

8.4 .  Establish a National Maintenance Collection Agency to

ensure the effective collection and enforcement of

maintenance,_jconsistent with Social Security administration

and policy.

In all States except Western Australia and South Australia,

maintenance collection and enforcement procedures are

cumbersome,  slow and ineffective against respondents

determined to resist the obligation to pay maintenance.

Allied to this administrative question is the legal

obligation,  now reimposed by Senators Durack and Chaney,

that proceedings for maintenance must be taken before

a spouse is eligible for a single parent's benefit. The

case for a national agency seems unanswerable but much

remains to be done to work out appropriate machinery,  and

in particular the inter-relationship with Social Security.

We will refer the question of the administrative structure

and operating guidelines of the national agency to the

Family Law Council for early report.

8.5 .  Ensure adequate provision of judges and counsellors at

the Family Court to minimise the delays and maximise

the rate of settlement of disputes without the need for

contested proceedings.

Labor welcomes the current trend at the Family Court

towards pre-court counselling, with the emphasis on

conciliation rather than adversary proceedings. In order

that this trend may continue, it is vital that there be

adequate numbers of court counsellors and deputy registrars

to conduct the conciliation and pre-trial proceedings.

Labor will institute an immediate survey of current staffing

requirements to ensure this.

8.6 Â·  Review the funding for marriage counselling organisations

to ensure that counselling continues to be available to

all those who need i t :

The counselling services provided by approved organisations

under the Family Law Act are of invaluable assistance to

many Australians in preparing for marriage,  coping with

marital difficulties and adjusting to divorce. It is

important that these services be more accessible, both

geographically and financially, and that there be wider

community awareness of their availability and utility.

I V .

8.7 .  Seek early implementation of the U.N. Convention on the

Recovery Abroad of Maintenance.

In March 1977, interdepartmental consultations were

completed to enable performance of Australia's

obligations under this Convention. Six years later,  the

implementation of the Convention is no closer to fruition.

This is a specialised area of law with important conÂ­

sequences for those seeking to recover maintenance from

abroad.  Labor will seek its immediate implementation.

8.8 .  Review the laws and administrative procedures relating

to de facto relationships with a view to ensuring

consistency in approach.

The N.S.W. Law Reform Commission is currently engaged

in a review of the law relating to de facto relationships.

A Federal Labor Government will liaise closely with the

N.S.W. Commission to ensure that in the Federal sphere the

treatment of de facto relationships is consistent in all

areas of law and,  wherever appropriate,is equated with the

treatment of married persons.

18 Â·

9. ACCIDENT COMPENSATION

The present accident compensation system involves a

scandalous waste of human and financial resources.

There have been some statutory advances in the areas of

motor accident and workers compensation but the overwhelming

majority of compensation claims rely on the common law

system which is complicated,  slow, capricious and wildly

expensive.  The "fault" requirement at common law means

that a great many badly injured people get nothing at all,

while the "lump sum" approach to court awards means that a

great many who do are either under or over-compensated.

Labor is committed to major reform of accident compensation

law but on the basis of Commonwealth-State cooperation

rather than unilateral Commonwealth action of the kind

recommended by the Woodhouse Committee. It seems apparent

that the common law fault principle cannot be eliminated

in all fields overnight. Accordingly, Labor will adopt a

step-by-step approach in which the three major problem

areas - motor accidents,  industrial accidents, and

"other accidents" (including criminal,  sporting and

domestic injuries) - are tackled successively rather than

all at once.

Labor’s ultimate objective is to have an integrated

Commonwealth-State nationwide scheme which ensures speedy

compensation at reasonable levels for all persons injured

in any kind of accident.

The N.S.W. Law Reform Commission's Report on Accident

Compensation,  soon to be completed, will be a crucial

element in the formulation of a national model. There

has already been close consultation between a Labor Task

Force on Accident Compensation and the N.S.W. enquiry.

As presently contemplated the proposed Commonwealth-State  model will involve successive adoption of the following steps

i) no-fault motor accident compensation scheme to

be introduced,  accompanied by abolition of common

law claims arising from such accidents;

19.

ii) increase workers compensation benefits under

existing statutory system to match bench-mark

set by motor accident scheme;

iii) extend workers compensation to 24-hour-a-day

cover for earners,  with abolition of common

law claims;

iv) 24-hour-a-day cover for non-earner non-road

accident victims.

20Â·

10. UNIFORM LAW REFORM

In a number of areas governed by State law, equity and

efficiency demand that these laws be uniform around

Australia. United States and Canadian Federal experience

would suggest that the areas of law most appropriate for

uniform legislation,  and where uniformity is most likely

to be achieved, are as follows:

i) legislation to facilitate the flow of commercial

transactions across State lines;

ii) legislation to avoid conflicts of laws applicable

to particular transactions;

iii) legislation to provide reciprocity as to rights

and remedies between States and their residents;  and

iv) certain areas without interstate implications, but

involving the codification of the common law, the

modernisation of antiquated concepts or the meetingof

emergent needs.

Uniformity of laws in Australia has chiefly been the

responsibility of the Standing Committee of Attorneys-General

but apart from a handful of matters - including adoption,

business names and hire purchase - there has been only limited

progress towards uniformity. Labor will, through close

intergovernmental cooperation, pursue uniform law reform

in a number of important areas.

In particular, Labor will -

10.1 .  Seek early agreement with the States on uniform

defamation law.

The Australian Law Reform Commission in 1979 proposed

a model law on defamation and other aspects of unfair

publication. The Commission's recommendations have

languished in the Standing Committee of Attorneys-

General since 1979, with only partial agreement being

achieved.  Labor,  both Federally and at State level,

is committed to the speedy implementation of the ALRC

model.  This will ensure a proper balance between the

right to freedom of expression and the right of a

person to protection against unjustifiable attacks on

reputation. We will consider implementation of the

ALRC proposals in relation to the electronic media -

which are within the Commonwealth's Constitutional

21 Â·

jurisdiction - in the event that significant progress

towards uniform law is not made.

10.2 .  Take initiatives to establish effective uniform

legislation in areas of national neec.

Areas where uniformity will be encouraged,  through the

Standing Committee of Attorneys-General and the National

Law Reform Advisory Council, include:

.. consumer protection;

.. road and industrial safety;

.  .  crimes compensation;

.. criminal investigation;

.. complaints against police;

.. sentencing and parole;

.. transfer of prisoners;

.  .  privacy;

.. deceptive electoral advertising.

22Â·

11. THE LAW REFORM PROCESS

The processes of changing the law must be streamlined. There

is still a vast amount of outdated,  unwieldy,  incomprehensible

or objectionable law on the books.  We already have a number

of high-quality law reform commissions in Australia:  what is

needed is to establish processes to convert their research,

wide community consultation and reform recommendations into

real and visible changes in the law.

Labor will -

11.1 .  Establish a National Law Reform Advisory Council.

There are eight major law reform commissions in the

Commonwealth,  the States and the Territories,  in

addition to numerous other working parties and

committees of review.  The law reform agencies meet

occasionally in conference but there is no official

coordination of law reform on a national basis.  The

National Law Reform Advisory Council will comprise

representatives from law reform agencies and from both

Government and Opposition in the Commonwealth and each

State and Territory. Its brief will be to coordinate

national and uniform law reform developments,  as has been

done for many years by the Uniform Law Commissioners in the

U.S. and Canada.

11.2 .  Establish _a_ full-time Secretariat to serve the Standing

Commit.tee of Attorneys-General and the National Law

Reform Advisory Council.

The Standing Committee of Attorneys-General meets

infrequently and has no permanent Secretariat of its

own.  Little wonder that it has become more a graveyard

for law reform proposals than a vehicle for their

implementation.  Labor will establish a full-time

Secretariat to serve it and the Advisory Council to

ensure that between meetings there is continuing work

on the preparation and implementation of proposals for

law reform.

23.

11.3

11.4

Increase support for the Australian Law Reform

Commission and seek the early implementation of

its outstanding reports:

The budget for the ALRC in 1982-83 is $1.29 million.

This is simply inadequate. The Commission has made

clear that some of its important references - in

particular the Sentencing reference - are simply lying

idle for want of resources.  Labor will remedy this

situation by an immediate increase in funding. Early

attention will also be given to those ALRC reports

which have not yet been implemented viz:  Criminal

Investigation (ALRC 2), Insolvency (ALRC 6 ), Unfair

Publication (ALRC 11), Lands Acquisition and Compensation

(ALRC 14), Sentencing (ALRC 15), Insurance Agents and

Brokers (ALRC 16), Child Welfare (ALRC 18) and Insurance

Contracts (ALRC 20).

Encourage the maximum public participation in the law

reform process:

Public interest and participation in the law reform

process has increased steadily in the last decade.

Formal consultation processes conducted by law reform

commissions have involved increasing numbers of

individuals and groups.  Labor supports maximum public

involvement of this kind.  The Australian Law Reform

Commission will be asked to develop further its practice

of compiling a register of law reform suggestions, and,

on the model of the New South Wales Law Reform Commission's

community law reform project,  to seek and process law

reform suggestions and proposals from members of the

public and the legal profession.

24.

APPENDIX

LAW REFORM AND INTERGOVERNMENTAL RELATIONS

While most of the items in the Law and Justice policy will be the  subject of discussion with the States,  some will involve more  explicit and detailed consultation and co-operation to achieve the  specified objectives. Areas of this kind are:

(a) Accident Compensation.  Proposed Commonwealth/State  co-operative approach to achieve uniform reform on  step-by-step model (para 9).

(b) Legal Aid.  With the objective of uniformity in  availability of legal aid,  establish as a joint  Commonwealth/State body a National Legal Aid  Commission (para 1.2).

(c) Human Rights and Anti-Discrimination Laws.  In coÂ­ operation with the States,  develop an integrated and  rationalised system of human rights legislation and  enforcement machinery (paras 4.2-4.3).

(d) Law Reform Machinery.  To co-ordinate the work of  individual State Governments and law reform commissions  in achieving law reform, establish a National Law Reform  Advisory Council and a full-time Secretariat to serve

the Standing Committee of Attorneys-General and the  Advisory Council (paras 11.1-11.2).

(e) Uniform Court System.  In co-operation with the States,  establish a uniform system of courts in  substitution for existing divided Commonwealth and State  jurisdictions (para 3.1).

(f) Family Law.  In order to achieve a unified family law  jurisdiction in the Family Court, seek the agreement  of all States to refer the necessary powers to the  Commonwealth (para 8.1).

(g) Uniform Laws.  Seek early agreement on model laws or  means of achieving uniformity in areas of national need,  including defamation law (paras 10.1-10.2).

In addition

Bring to early fruition matters already the subject of Commonwealth/  State policy agreement, including:

.  Computerised Legal Information Retrieval.  To ensure compatibility of computerised legal information retrieval  systems, pursue vigorously Commonwealth/State uniformity  in selection of systems and granting of copyright waivers.

Ã¢ÂÂ¢  Residual Constitutional Links With the U K .  With the active participation of the States, implement as soon  as possible the decisions of the 1982 Premiers' Conference  to abolish residual links, including appeals to the Privy  Council (para 3.4).

