The Standing Committee of Attorneys-General (SCAG) held its first
meeting today since the election of the Rudd Labor Government.
Members, comprising the Commonwealth, State and Territory
Attorneys-General, the Commonwealth Minister for Home Affairs and
the Associate Justice Minister of New Zealand, held discussions on
over 30 matters of substantive legal reforms for all jurisdictions.
The Norfolk Island Minister with responsibility for police and legal
A summary of decisions is attached. Significant progress was made in
areas including reform of personal property securities law, interstate
fine enforcement, a judicial exchange program, indigenous justice,
harmonisation of criminal laws, litigation funding, victims of crime and
work towards a national register of suppression orders.
On the eve of Law Week, Members agreed that the presence of Labor
Governments in all jurisdictions is a unique opportunity in Australia’s
history to reinvigorate the legal reform process.
Members affirmed their shared commitment to work cooperatively to
secure outcomes in the national interest through harmonised or uniform
action, and drive reform in an efficient and effective way.
To facilitate this, Members agreed to undertake a comprehensive
• identify joint priority agenda items where progress can be
• examine agenda items where political impasses have limited
progress and work co-operatively to resolve outstanding issues
• identify agenda items where there is potential to draw on existing
best practice models rather than reinventing the wheel
• identify items where changed circumstances may have impacted on
• identify areas where timely reform can be achieved through
administrative action, not just legislative action.
Members agreed that these steps would be taken by their next meeting
in July 2008 and that a strategic plan would be considered focusing on
short, medium and long term outcomes and their timely implementation.
Members agreed to engage the legal profession and key stakeholders
with genuine and active consultation on reform proposals and to
convene a one-day conference during 2008 on legal harmonisation.
The Conference will actively engage a wide group of stakeholders
including the profession, industry and academics from across Australia
and New Zealand to bring fresh ideas and new perspectives on legal
Members agreed to establish a jointly funded permanent Secretariat to
support them in achieving these outcomes. A permanent, independent
SCAG Secretariat will further assist in increasing the efficiency and
SCAG Summary of Decisions - March 2008 Interstate Enforcement of Fines
Noted that at the July 2007 Standing Committee of Attorneys-General(SCAG) meeting Ministers agreed that the Commonwealth shouldamend the Service and Execution of Process Act 1992 (Cth) (SEPA) toallow the mutual recognition between States and Territories of court-imposed fines, to enable these fines to be registered for enforcement inaccordance with the laws of the State or Territory where the defendantresides;
Approved in-principle a system for the mutual recognition betweenStates and Territories of administrative fines (including enforcementorders in relation to unpaid fines) and to permit those interstate finesand orders to be enforced using local laws and enforcementmechanisms;
Approved an exception to the mutual recognition of court-imposed andadministrative fines, namely that registering a fine for interstateenforcement does not permit the enforcing jurisdiction to impose asanction of imprisonment for default;
Approved in principle the framework outlined in the Australian and NewZealand Fine Enforcement Reference Group (ANZFERG) Sub WorkingGroup submission in relation to administrative issues associated withinterstate fine enforcement, except that the sanction of imprisonmentnot be available at any time for fine enforcement. Workplace Privacy
Noted the outcome of consultation on the Workplace Privacy -Options for Reform (Consultation Paper).
Noted the options for developing a model for workplace privacyreform include:
• Developing a regime of voluntary guidelines for certain workplace
practices such as surveillance, monitoring and testing of workers
• Developing a regime of mandatory codes of practice for such
• Developing a model based on a combination of measures, including
mandatory and / or voluntary codes of practice supported bylegislation
• Developing a legislative regime to regulate workplace surveillance by
employers of workers, based on the New South Wales WorkplaceSurveillance Act 2005 (NSW WSA).
Noted the working group’s preferred option is a minimum model fornationally consistent workplace privacy regulation based on a
combination of measures, including mandatory and / or voluntarycodes of practice supported by legislation noting that, if a jurisdictioncurrently imposes a stricter standard (such as under the NSW WSA),then those standards are not expected to be lowered
Agreed to the working group developing a minimum model fornationally consistent workplace privacy regulation as set out in (c)above. Personal Property Securities Law Reform
Endorsed in principle the draft inter-governmental agreement onpersonal property securities and requested the Secretary to provide thedraft to COAG, noting that final endorsement from SCAG will besubject to agreement between the States, Territories and theCommonwealth on the text of the PPS Bill and the referral legislation ineach State
Requested officers to provide Ministers at the next SCAG meeting with:
(a) an overview of the consequential amendments to State and
Territory legislation that may need to be made as a consequence ofthe PPS Bill and a draft timeline for each State and Territory tomake the necessary amendments, and
(b) a report on the development of the PPS register.
Noted the steps in the development of the PPS Bill:
(a) on 22 February 2008 an initial exposure draft of the PPS Bill was
circulated to the States and Territories and the PPS ConsultativeGroup for comment
(b) following this consultation, subject to the approval of the Prime
Minister, the Commonwealth Attorney-General will publicly releasean exposure draft of the PPS Bill, and
(c) the Parliamentary Counsels’ Committee will be requested to
prepare draft referral legislation for consideration by the States andthe Commonwealth
Noted the report by Mr Laurie Glanfield AM, Director General, AttorneyGeneral’s Department of New South Wales and Mr Ian Govey, DeputySecretary,
operational and legislative issues with the Canadian PPS system andthat the issues raised in the report will inform the development of theAustralian PPS system
Noted the provisional timeline for the development of the legislativescheme
Noted that timing for PPS reform as a whole is being considered by theBusiness Regulation and Competition Working Group of COAG. Tort Law – Proportionate Liability
Noted the overview of Mr Tony Horan’s report ‘Proportionate Liability:Towards National Consistency’ and Professor Jim Davis’s report‘Proportionate Liability: Proposals to Achieve National Uniformity’; and
Requested that the Working Group develop proposals to achievegreater national consistency in proportionate liability legislation forconsideration by Ministers at the next meeting. Accession to Hague Convention on Service Abroad
Noted that, following identification of relevant Rules of Court andlegislation by jurisdictions, the Standing Committee of Attorneys-General (SCAG) Secretary requested the Council of Chief JusticesRules Harmonisation Committee to develop model Rules of Court toimplement the Hague Service Convention in Australia
Noted that once draft model Rules of Court are available, the SCAGWorking Group will consider and comment on the Committee’s draft toensure consistency with other aspects of Australia’s accession
Noted that draft guidelines are being developed by the Working Group,in consultation with key stakeholders, for the handling by State andTerritory authorities of foreign requests for service which may infringeAustralia’s sovereignty or security, and
Tasked the Working Group with preparing advice about further actionrequired
Requested the Secretary of SCAG to write to the Council of ChiefJustices
contributions to date and indicating that, if possible, SCAG Ministerswould like to see this project concluded before the next SCAG meeting. Sterilisation of Intellectually Disabled Minors
Noted that the Working Group’s further work and research since April2007 has revealed that:
The number of reported sterilisations that are now occurring inAustralia appears to be significantly less than the numberssuggested in the 1997 Human Rights and Equal OpportunityCommission (HREOC) Report on Sterilisation of Children with anIntellectual Disability that was the trigger for this item being placedon the SCAG agenda.
understanding of their legal obligations as a result of steps taken toeducate these groups following the 1997 HREOC Report .
Alternatives to surgical procedures to manage the menstruationand contraceptive needs of women are increasingly available (e.g. Depo Provera and the Mirena IUD) and seem to be successful inmost cases.
There are existing processes in place in each jurisdiction toauthorise sterilisation procedures, which appear to be workingadequately in light of recent improvements in treatment options andeducation initiatives. There would be limited benefit in developingmodel legislation.
Supported measures to continue the promotion of ongoing awarenessof the non surgical alternatives to manage the menstruation andcontraceptive
obligations of doctors and hospitals to seek Court authorisation beforeperforming these procedures; and
Agreed to review current arrangements to ensure that all tribunals orbodies with the power to make orders concerning the sterilisation ofminors with an intellectual disability are required to be satisfied that allappropriate alternatives to sterilisation have been fully explored and/ortried before such an order is made.
Agreed to remove this item from the agenda. Surrogacy
Agreed to develop a unified framework for the legal recognition ofparentage achieved by surrogacy arrangements, based on the followingprinciples:
• The rationale for the legislation is to ensure the best interests of the
child are the paramount consideration in recognising surrogacyarrangements
• The model regime should aim to minimise scope for dispute between
the surrogate mother and the intended parents.
• The model should aim for minimal intervention in people’s lives.
Agreed in principle that a unified framework should contain thefollowing key features:
• commercial surrogacy will remain illegal
• non-commercial surrogacy arrangements will be lawful but agreements
• informed consent of all parties is essential
• court orders will be available recognising the intended parents as the
requirements and is in the best interests of the child.
Approved the release of a consultation paper for public consultation.
Requested officers to seek agreement and approval to the aboverecommendations from AHMC and CSMC before conducting theconsultation, and to report back to each Ministerial Council with finalrecommendations following consultation. Harmonisation
(a) Noted the report by Mr Glanfield and Mr Govey following theirattendance at the September 2007 Uniform Law Conference ofCanada,
(b) Agreed that the Secretary to SCAG convene a one day Conferencein 2008 to enhance input into SCAG’s harmonisation work by engaginga wider group of academics, private practitioners and governmentlawyers, with details to be settled amongst officers, and
(c) Requested officers to continue to monitor the work of the UniformLaw
Commissioners on Uniform State Laws and the Mexican Conference ofCommissioners on Uniform State Laws.
Noted that the Commonwealth House of Representatives StandingCommittee on Legal and Constitutional Affairs’ report Older people andthe law was tabled on 20 September 2007, and that the AustralianGovernment is considering its response to the report including thoserecommendations relating to raising matters at SCAG. National Electronic Conveyancing System
Noted that COAG has agreed to the development of a nationalelectronic
Competition Working Group implementation plan);
Noted the need for a national system to eliminate the costs andcomplexities of dealing with eight different systems;
Requested the Secretary of SCAG to write to Minister Tanner andMinister Emerson as co-chairs of the COAG working group responsiblefor this reform, advising of SCAG’s willingness to assist with thenational
development of any necessary model legislation for the settlementsystem and any national corporate entity that may be necessary for theproject;
Judges Exchange Program
Approved in-principle the development of an exchange betweenjudicial officers of interested State and Territory courts and membersof interested administrative appeals tribunals, subject to thedevelopment of a proper legislative, administrative and financialframework;
Noted that they would leave the door open to participation by NewZealand, if New Zealand courts are interested; and
Agreed to examine the legislative framework in their jurisdictions inorder to facilitate the exchange program and report back out ofsession on any legislative changes that may be required. Trustee Companies
Noted that COAG has agreed that the Commonwealth assumeresponsibility
Regulation and Competition Working Group implementation plan)
Requested the SCAG Secretary write to Minister Tanner and MinisterEmerson as co-chairs of the working group responsible for this reformoffering SCAG’s assistance in the legal and technical aspects includingany proposed referral of powers. SCAG Secretariat – Review and Funding
Noted a report that reviews the operation of the SCAG Secretariat
Agreed to endorse the establishment of a jointly funded independentpermanent SCAG Secretariat (consisting of a SCAG Executive Officer,Project
jurisdiction of the SCAG Secretary and operating on behalf of alljurisdictions) as outlined in the review paper and unanimouslyendorsed by the National Justice CEOs. Jury Selection – NSW LRC Report
the New South Wales Law Reform Commission has released its Report117: Jury selection,
the NSW Attorney General’s Department is currently undertakingconsultation on the report, and
the NSW Attorney General has written to the Commonwealth Ministerfor Home Affairs about the interaction of Commonwealth and Statelaws in relation to jury service. Indigenous Justice a. National Indigenous Law and Justice Framework
Agreed that the Indigenous Justice agenda item be focused onproviding leadership on priority Indigenous justice issues, and
Agreed to progress the Indigenous Justice agenda item by advancing anational Indigenous law and justice framework, including agreedtargeted projects, through a working group. b. Customary Law In Bail And Sentencing & Bail Provisions And Enforcement
Ministers requested officers organise an information session on customarylaw for a future SCAG meeting. c. Indigenous Justice Clearinghouse – Review
Noted the Review of the Indigenous Justice Clearinghouse website andthat the National Justice CEOs have agreed to further develop theClearinghouse and share the cost of the Clearinghouse ($113,620 peryear) for the next two years.
Noted that the National Justice CEOs have agreed to review theClearinghouse after a further two years of development
Agreed to promote the Indigenous Justice Clearinghouse andencourage contributions to the website
d. Indigenous Justice Forum Report
Ministers noted the report on the National Indigenous Justice Forum onCultural Healing in Criminal Justice Service Delivery held in Brisbane inNovember 2007. Model Criminal Code a. Identity Crime Model Offences
Ministers approved for public release the report on identity crime produced bythe Model Criminal Law Officers’ Committee (MCLOC). b. MCLOC Implementation Report
(a) Noted the Model Criminal Code implementation report
(b) Noted the priorities identified by COAG on 5 April 2002, and
(c) Agreed that a review paper would be prepared examining the
Uniform Spent Convictions
Noted that work is continuing on the draft model Spent Convictions Bill;
Will approve, out of session, the publication of an agreed draft Bill, forconsultation purposes,
Asked officers to report back to the July meeting on the results ofconsultation. Litigation Funding
1. Noted that the working group is developing a draft regulation impact
statement outlining strategies for the regulation of litigation funding:
2. Noted that the draft regulation impact statement will not recommend a
preferred option or bind Ministers to take any action,
3. Agreed that officers use the draft regulation impact statement, when in a
form agreed by the working group, and approved by the CommonwealthOffice of Best Practice Regulation (OBPR) and Ministers, to consult withindustry stakeholders and interested parties, and
4. Requested that officers, on the basis of their consultations, finalise the
regulation impact statement and develop a recommendation on thepreferred
General Business a. Victims of Crime
Ministers agreed that an officers working group should report back toMinisters on a comparison of victims rights schemes in jurisdictions,considering best practice approaches including a national approach to victimscompensation. b. Harmonisation of anti-discrimination laws
Ministers agreed that interested jurisdictions will examine options forharmonising Commonwealth, State and Territory anti-discrimination laws, andthat a working group be established to develop options for Ministers’consideration. c. National Directory of Alcohol and Drug Treatment Services
Ministers agreed that the SCAG Secretary write to the CommonwealthMinister for Health and Ageing, the Hon Nicola Roxon MP, requesting thatSCAG be provided with advice on the National Directory of Alcohol and Drug
Treatment Services project once completed by the Department of Health andAgeing. d. Legal aid funding
Ministers agreed that the Commonwealth will bring forward a paper on legalaid to the next meeting. e. Suppression orders
Ministers asked their officers to look at the current use of suppression orders,including exploring the possibility of harmonisation and/or developing anational system for recording active suppression orders. f. Trans-Tasman court proceedings and regulatory enforcement
State and Territory Ministers agreed to actively participate in consultation onthe draft treaty on trans-Tasman legal cooperation. g. Disabilities Convention
Ministers noted that the Commonwealth is undertaking consultations withStates and Territories on Australia’s ratification of the UN Convention on theRights of Persons with Disabilities. h. National Legal Profession Model Laws
Ministers noted the implementation status of the National Legal ProfessionModel Laws. i. Forensic Pathologists
Ministers agreed that the Forensic Pathologists agenda item be returned tothe Main Agenda for discussion at the next SCAG meeting. j. Missing Persons
Ministers noted the recent release of the Missing Persons in Australia Report,and that the report identified that legislation relating to the management of thefinancial and property affairs of a missing person benefits the families ofmissing persons.
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