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N P U P

New South Wales Law Reform Commission

Disability and Community Services

In October 1999, reports by the Commission reviewing the Disability Services Act 1993 (NSW) and the Com­

munity Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) were tabled in the NSW parliament. Both Acts were required to be reviewed after they had been in operation for five years.

The Disability Services Act (DSA) sets out a series of objects and principles to which agencies that provide services to people with disabilities must comply in order to receive government funding. The main policy objec­tive of the Act is to ensure that people with disabilities have the same basic human rights as other members of the community. The primary object is to ‘ensure the pro­vision of services necessary to enable people with a dis­ability to achieve their maximum potential as members of the community’ (DSA section 3(a)).

It was clear from the Commission’s consultations that the Act had strong community support, that its objec­tives remained valid and that it provided an appropri­ate framework for the delivery of services to people with disabilities. However, there was also an almost unani­mous view that the lack of resources in the disability sector significantly undermined the full implementation of the legislation. Service providers, in particular, pointed out that the lack of sufficient funding made it almost impossible for the policy objectives of the Act to

be met. There was a view, however, that some amend­ments to the Act were needed which would assist in securing the needs of people with disabilities.

The report’s major recommendations were as follows.

• Re-word some of the objects, principles and applica­tions of principles, including a new object ‘to ensure that access to services is determined on a fair and equitable basis’.

• Extend the reach of section 9 of the DSA to all govern­ment departments and agencies and, after a phasing-in period, to local government authorities.

• A new two-stage transition process to replace the existing transition process, which has failed to work.

• Establish a Disability Quality Assurance Council (Dis- QAC). DisQAC would have responsibility for establish­ing and overseeing a new quality assurance scheme, overseeing the new transition process, monitoring ser­vices, and recommending to the minister what action should be taken where services fail to comply with the DSA or with the transition plans.

• A new special part in the DSA dealing with children and young people.

The Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA) established the Commu­nity Services Commission. Its functions include han­dling complaints about service delivery, monitoring ser­vices generally, undertaking reviews of persons in care and reporting on its investigations. CAMA also estab­lished a community visitors scheme and the Community Services Appeals Tribunal (now reconstituted as the Community Services Division of the Administrative Decisions Tribunal).

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The Commission’s report on CAMA strongly supported the legislation but made 65 recommendations to improve its operation. One of these recommendations was the establishment of a Parliamentary Joint Com­mittee to oversee the operation of the Community Ser­vices Commission.

Review of the Anti-Discrimination Act

The Commission’s report on its review on the Anti-Dis­crimination Act 1977 (NSW) was released in December 1999 and contains 161 recommendations for reform.

In a review extending over several years the Commis­sion critically examined the way in which the Act has been operating. In the Commission's view, the Act has been successful in bringing about significant changes to community attitudes and behaviour. However, the legis­lation must remain relevant and up-to-date. For this reason, the Commission recommended the introduction of three new grounds of discrimination: religion, politi­cal opinion and carer responsibilities (in employment). The Commission considered but rejected proposals that it should be unlawful to discriminate on the ground of a person’s accent, criminal record, geographical status or industrial activity.

The Commission also recommended reducing the num­ber of exceptions to the Act’s application, in particular the exceptions relating to small business and partner­ships of fewer than five persons, and limiting the scope of the exception for private educational authorities in the area of employment.

In the pipeline...

Over the next six months, the Commission will complete the following reports and consultation papers.

Surveillance. The report on the review of the Lis­

tening Devices Act 1994 (NSW) and the need to regulate the use of surveillance equipment in public places will be published in the early part of 20C0.

Concealment of serious offences. Section 316 of the Crimes Act 1990 (NSW) creates an offence for a person who knows or believes that a serious crime has been

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committed, and fails to inform the police without a rea­sonable excuse. The Commission plans to publish the report in early 2000.

Uniform succession laws. This is a joint project with representatives from each state and territory. It is being led by the Queensland Law Reform Commission. Reports on wills and family provision have been pre­sented to the Standing Committee of Attorneys-Gen- eral. The report on wills has been published, and a report on family provision should be published in the next six months. A consultation paper on administration of estates has just been published (NSWLRC DP 42).

Set-off. Set-off is a mechanism whereby one party can apply a debt owed to him or her by another party to dis­charge all or part of the debt that he or she owes to that party. The Commission plans to complete its report in early 2000.

Sentencing of Aboriginal offenders. This report, one of a series of reports the Commission is publishing on sentencing, should be completed by March 2000.

Civil procedure: discovery and interrogatories.The Commission has deferred work on this project while awaiting the results of work being undertaken by a number of other committees, including the Supreme Court Rules Committee.

Contempt by publication. The Commission is con­ducting a general review of the law of contempt by pub­lication. In doing so it will be considering whether a per­son who causes a trial to be aborted should have to pay the costs. In undertaking this project, the Commission will be reviewing the work done by the ALRC in the late 1980s (ALRC 35, Contempt). A discussion paper will be published early in 2000.

Third party guarantees. The Commission is prepar­ing an issues paper, which will be published in early 2000. This review will consider whether the present legal framework adequately protects the interests of personal guarantors of small business and other loans and whether there are other more practical or cost-effec­tive strategies for the provision of personal guarantees.

The Commission’s reference on third party guarantees will be enhanced by the conduct of empirical research

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undertaken with funding from the Australian Research Council’s Strategic Partnership with Industry for Research and Training (SPIRT) scheme. This research will be done in partnership with Sydney University.

Pigot’s case. The rule in Pigot’s case originated in 1614. It was recently stated by the Court of Appeal of New South Wales to be that ‘where a deed or other writ­ten contract is, after execution, materially altered with­out the consent of the obligor by the obligee, or by some­one else without the consent of the obligee, or by a stranger whilst it is in the obligee’s custody, the deed becomes void (or according to some, avoidable at the election of the obligor)’. The Commission’s review will determine whether the rule still has application or whether it should be abolished or restated in a more restricted way.

Review of the Property (Relationships) Act. This Act, formerly the De Facto Relationships Act 1984 (NSW) was amended in mid-1999 to apply to parties to relationships of a wider class, including same sex rela­tionships and those in ‘carer’ relationships. While the Commission’s review is a general one, particular regard will be given to the financial adjustment provisions of the Act (section 20), including whether the current leg­islation is able to take into account superannuation and entitlements.

The NSW Legislative Council’s Standing Committee on Social Issues has recently published a report on the issue of domestic relationships and it specifically raises a number of matters which it considers the Commission should consider in its review. An issues paper is planned for March 2000.

Victorian Law Reform Committee

On 14 December 1999, new members were appointed to the Victorian Parliamentary Law Reform Committee. Following the Victorian state election in September 1999, there was a long period of negotiations between the government and the opposition on the structure and composition of the parliamentary committees. The Law

Reform Committee has been reconstituted with seven members.

The Committee is proud to announce the election of its new Chairman, Mr Murray Thompson MLA and new deputy chair, Hon Dianne Haddon MLC. The other members of the Committee are: Hon David Davis MLC; Hon Peter Katsambanis MLC, Mr Telmo Languiller MLA, Mr Andrew McIntosh, MLA; and Mr Bob Sten- sholt MLA. Four of the seven members are new mem­bers of parliament and five of the seven members have legal qualifications.

The Committee completed inquiries into technology and the law and criminal liability for self-induced intoxica­tion in 1999. The Committee expects to receive terms of reference for new inquiries in the near future.

Queensland Law Reform Commission

Evidence of children

The Queensland Attorney-General has requested the Commission review the capacity of the judicial system, both in its criminal and civil aspects, to properly receive the evidence of children.

A working paper (WP 53) was released in December 1998. The broad issues considered in this paper include:

• the competency of young people to give evidence;

• the use of out-of-court statements in court;

• videotaped evidence;

• the use of closed circuit televisions and screens to help young people in the presentation of theirevidence;

• preparation of, and support for, young witnesses;

• pre-trial hearings; and

• young witnesses with disabilities.The final report is expected to be completed by mid - 2000.

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Justices of the Peace

A discussion paper (WP 54) was released in May last year examining the role of Justices of the Peace (JPs) in Queensland. Topics addressed included the appoint­ment of JPs, functions performed by them, the role of JPs in Aboriginal, Torres Strait Island and remote com­munities, and whether there is a continued need for the role of JPs.

The final report will be released early this year.

Evidence and technology

The Commission is investigating the capacity of the criminal and civil judicial systems to receive into evi­dence information stored and conveyed in electronic, magnetic or similar form.

An issues paper (WP 52) was released in September 1998.

Uniform succession laws

The Commission continues to lead and coordinate a ref­erence to develop uniform succession laws for Australia. This reference is an initiative of the Standing Commit­tee of Attorneys-General (SCAG). A national committee has been established to ensure the project maintains an Australia-wide focus.

Reports on the law of wills and on family provision were presented to SCAG in December 1997. A discussion paper Administration of Estates of Deceased Persons (MP 37) was produced in June 1999. It is anticipated that the national committee will report to SCAG in the second half of 2000.

A draft discussion paper Recognition of Interstate and Foreign Grants of Probate and Letters of Administration has been prepared for the national committee by Dr Peter Handford of the Law School, University of West­ern Australia. The discussion paper will be released in the first half of this year.

Family provision

As a result of the work undertaken by the Commission on the law of family provision as part of the uniform

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succession law reference, the Commission will present a report to the state Attorney-General on the changes that would need to be implemented in Queensland to give effect to the recommendations contained in the report to SCAG.

This report will be finalised when the drafting of model legislation is complete.

Legislative action on reports

The following recent legislation has enacted Commis­sion recommendations:

• Powers of Attorney Act 1998 (Qld) - Report 49 (June 1996): Assisted and Substituted Decisions

• Property Law Amendment Act 1999 (Qld) - Report 44 (June 1993): De Facto Relationships

• Guardianship and Administration Bill 1999 (Qld) - Report 49 (June 1996): Assisted and Substituted Deci­sions

Current publications may be accessed through the Commission’s homepage at <http://www.qlrc.qld.gov.au>

Legal, Constitutional and Administrative Review Committee,

Queensland

State Ombudsman

The Queensland Premier has responded in detail to the Committee’s recommendations in its Review of the Report of the Strategic Review of the Queensland Ombudsman (report no 14) (Editor’s note: A brief outline of the report is in the Spring 1999 Reform. Issue 75, 79).

In particular, the Premier has agreed, and initiated steps, to undertake an external management review of the Office of the Queensland Ombudsman. The review,

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which will be combined with a management review of the Office of the Information Commissioner, was expected to commence in January 2000.

The Premier has also accepted the Committee's recom­mendations for legislative amendment designed to strengthen parliament’s ties with the Queensland Ombudsman.

Electoral reform

In September 1999, the Committee reported on its inquiry into two issues of electoral reform raised in the Queensland Court of Disputed Return’s decision on the Mansfield petition. (The Mansfield decision arose out of the 1998 state election. The result in the Mansfield elec­torate was challenged in the Court of Disputed Returns, after allegations that misleading ‘second preference’ how-to-vote cards had been handed out on polling day.)

The Committee recommended that:

• how-to-vote cards should be required to bear, in suffi­ciently sized print, the name of the party (or indepen­dent candidate) on whose behalf they are distributed; and

• there should be a right of appeal from decisions of the Queensland Court of Disputed Returns on questions of law to a new ‘Appeals Division’ of that Court.

The Queensland Premier has recently stated that legis­lation will be introduced regulating how-to-vote cards along the lines suggested by the committee and enabling appeals from the Court of Disputed Returns to the Court of Appeal.

Freedom of Information

The Committee’s comprehensive review of the Freedom of Information Act 1992 (Qld) continues. To date, the committee has:

• analysed the 110 submissions it received in response to a call for public comment on the terms of reference;

• examined first-hand New Zealand’s unique approach to accessing government-held information; and

• examined other research issues pertinent to its review.

At the time of printing, the Committee was preparing a discussion paper to stimulate a second round of public input, this time on particular issues that the committee is considering making recommendations about. To this end, the discussion paper will summarise the broad positions taken in submissions received so far. It will also invite further submissions on select discussion points that have emerged and are, in the Committee’s view, worthy of further, specific, public consideration. These points will be more in the nature of broad policy or ‘design principles’ than technical matters.

Electoral reform * •

The Committee has two current inquiries regarding electoral reform.

In October 1999 the Committee resolved to undertake an inquiry into certain issues of Queensland electoral reform, most of which emanate from a memorandum from the Queensland Electoral Commissioner to the Attorney-General following the 1998 state election. Broadly, the issues the Commissioner raised relate to proposed amendments to the Electoral Act 1992 (Qld):

• resulting from the conduct of the 1998 state election;

• arising out of the recent amendments to the Common­wealth Electoral Act 1918 — by the Electoral and Refer­endum Amendment Act (No 1) 1999 (Cth) — concerning:- election funding and financial disclosure;- electoral enrolment procedures (which will require persons seeking to enrol for the first time to produce proof of identity and citizenship; and the upgrading of witness requirements for claims for enrolment); and

• enhancing the accuracy of the electoral roll.

As part of its inquiry, the Committee is also considering Queensland’s electoral roll-keeping arrangements, including whether Queensland should keep a separate state roll and mechanisms for roll-updating such as data matching and various inducements to enrol.

In December 1999, the Queensland parliament referred the Electoral Amendment Bill 1999 (a private member’s Bill) to the Committee for ‘consideration and report’. The stated objective of the Bill is to amend Queensland’s Electoral Act 1992 ‘to provide truth in political advertis­ing by preventing, as far as possible, the production and

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distribution of false or misleading political advertising material'. The Committee has previously reported on many of the matters canvassed in the Bill in its reports on truth in political advertising (report no 4) and the Mansfield decision (report no 18).

Treaty making •

The Committee is inquiring into certain proposals regarding the role of the Queensland parliaments in treaty making. These proposals emanate from a semi­nar held in June 1999 on the role of parliaments in treaty making (convened by the Joint Standing Com­mittees on Treaties of the Commonwealth Parliament in association with the Australasian Study of Parliament Group).

In particular, seminar participants proposed that state and territory parliaments might consider three specific proposals to improve parliamentary awareness of, and involvement in, treaty making and to make the treaty making process more publicly open, namely:

• arranging for information about proposed treaty actions to be tabled in that jurisdiction’s parliament as a matter of routine;

• having a dedicated parliamentary committee to review proposed treaty actions and advise on the local impact of international law making; and

• contributing to the establishment of an inter­parliamentary working group on treaties to help improve general awareness of proposed treaty actions and encourage wider parliamentary scrutiny of treaty making.

The Committee is currently calling for submissions on a position paper that it has released on the issue.

Copies of all the Committee’s reports and other publications can be obtained from the Internet at <http://www.parliament.qld.gov.au/committees/le galrev.htm> or by contacting the Committee’s sec­retariat on (07) 3406 7307.

Criminal Justice Commission, Queensland

In addition to a number of other very significant func­tions, the Criminal Justice Commission (CJC) is required by statute to monitor and evaluate the Queens­land Police Service and to conduct criminal justice research and criminal law reform. The Research and Prevention Division of the CJC devotes the majority of its research resources to Queensland Police Service monitoring and reform. The rest of the division’s research resources are directed to criminal justice trends and law reform. In recent years, there has been an emphasis on significant developments in the crimi­nal justice system and on undertaking research into sig­nificant systemic problems or issues not adequately being addressed by other agencies.

The division is currently involved in a large number of projects including: prisoner numbers; strip searching by Queensland police; a survey of defendants appearing before arrest court magistrates; and inappropriate rela­tionships between teachers and students.

Prisoner numbers

This project is directed towards the identification of the key factors underpinning the dramatic increase in pris­oner numbers in Queensland since 1993. The project has drawn together data from across the criminal jus­tice system in Queensland and provides a detailed account of the nature and extent of the changing dynamics of the criminal justice system. A final report on this project is expected to be completed early this year.

Strip searching

In early December last year, the CJC released an issues paper on the practice of strip searching detainees by Queensland police (Criminal Justice Commission Strip Searching Issues Paper December 1999).

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The practice has been the source of considerable public interest in recent months with a number of people alleg­ing to the media and to the CJC that they have been inappropriately strip searched. Although people have complained of being embarrassed and humiliated by the experience of being strip searched, police maintain that the practice is required to discover items that may be relevant to an offence and/or to ensure that people being detained are unable to harm themselves, police or other detainees.

Example: A 20-year-old man was arrested and detained at a watch house on a warrant for failure to obey a sum­mons, after behaving in a threatening manner. Although his shoes, shirt and personal property were forcibly removed he was not strip searched before being placed in a cell because of his very agitated demeanour. An officer was assigned to observe the man at all times. The man was seen cutting himself with a piece of metal. The officer was able to intervene before serious damage was done. Although it appears that there was no sug­gestion of misconduct on the part of the officers involved, the incident highlights the need to conduct strip searches, if possible, in appropriate circumstances.

People detained at watch houses for relatively short periods of time (for example, while arranging the pay­ment of outstanding fines) are not generally regarded as appropriate candidates for being strip searched. Never­theless, the CJC has received a number of complaints where short-term watch house detainees appear to have been inappropriately strip searched.

Example: A mother and daughter were pulled over on the road for a licence check and were both discovered to have outstanding warrants relating to speed camera offences. Both were taken to a watch house. The mother was able to pay her own fine by credit card and allowed to leave. The daughter had to wait some time before being able to organise the payment of her outstanding amount. She was strip searched, apparently as a rou­tine procedure for people being detained for any time at that watch house.

The CJC was of the view that the search was inappro­priate in the circumstances.

Example: A woman, eight months pregnant, was arrested for stealing and detained at a watch house on

two outstanding warrants. While a relative was organ­ising to pay the outstanding amounts the woman was strip searched by two female police officers, even though there was no suggestion that the outstanding monies would not be paid that evening. The woman was released three hours later and complained of being humiliated.

The CJC was of the opinion that the behaviour of the police officers involved was inconsiderate and that the search was inappropriate in the circumstances. The woman accepted a formal apology from the Queensland Police Service.

A final report on strip searching is expected early this year

Defendants’ survey

In May and June last year, the CJC conducted its sec­ond defendants’ survey. The first survey was conducted in 1996.

The survey is a confidential, voluntary survey of defen­dants appearing before the arrest court at seven Magis­trates Courts throughout Queensland.

The 1999 survey has indicated that since 1996 there has been a reduction in the proportion of respondents who claim police assaulted them, or spoke rudely to them. Defendants’ awareness of their rights and responsibili­ties has also increased, most probably as a result of the introduction of the Police Powers and Responsibilities Act 1997 (Qld). The CJC’s report of the 1999 survey is expected in March 2000.

Inappropriate relationships between teachers & students

This project arose out of the referral of complaints to the CJC involving allegations of inappropriate relationships between teachers and students in Queensland state schools. Many of the referrals arose from an Education Department telephone ‘hotline’ established in response to intense media coverage of a case involving allegations of inappropriate sexual relationships between a male teacher and female high school students.

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Since April 1998 (the time of the hotline) approximately 80 matters have been referred to the CJC. The CJC is undertaking the project in two parts. The first report will include:

• a descriptive analysis of the types of complaints received by the CJC;

• Education Department policies and management practices in place to prevent, and to respond to, allega­tions of such relationships; and

• proposals for reform of those policies and systems.

This report will also flag legal issues arising from the allegations.

The second report will report on the outcome of a sys­tems review of the Education Department’s current policies and management practices to determine whether the policies are sufficient to discourage inap­propriate relationships developing between teachers and students; and whether the policies provide an effec­tive response to allegations of such relationships. The first report is expected to be completed early this year, with the second report to be published in the second half of 2000.

The Law Reform Commission of

Western Australia

Criminal & civil justice system review

The Law Reform Commission of Western Australia (LRCWA) is completing publication of its collected papers on the Review of the Criminal and Civil Justice System in Western Australia as this edition of Reform goes to print. The collection includes the Commission’s final report, an executive summary, a project summary, a submissions summary, and the 1,200-page two-vol­ume set of consultation drafts and background informa­tion papers.The entire 2,000-page collection of papers produced as part of the review is presented in a five-volume boxed

set that includes two compact disks. The CDs offer access to the publications in two formats, PDF and RTF. One of the CDs is presented with the project summary while the other can be found at the back of the submis­sions summary and features more than 20 video clips, including some of actual submissions made to the LRCWA during its series of public meetings in 1998.

The final report contains a total of 447 recommenda­tions to improve the justice system in Western Aus­tralia. The recommendations focus on changes to make the system more fair and accessible while reducing delay and cutting costs.

The report contains:

• more than 100 recommendations dealing specifically with criminal matters;

• more than 60 proposals to curb delay and cut costs;

• a suggestion that those who can afford to pay more to have a court decide a civil dispute should do so;

• a proposal that businesses pay higher fees to use the courts to resolve disputes because legal costs are tax deductible;

• 80 recommendations for resolving disputes without going to trial by:- alternative dispute resolution for civil matters;- alternative criminal charge resolution with requirements for the prosecution to consult victims;

• a plan to amalgamate judicial functions of boards and tribunals;

• a pilot private courts project; and

• recommendations concerning the legal profession including:- limited contingency fee provisions;- compulsory training in ethics; and- the appointment of non-lawyers in legal regulatory bodies and the Law Reform Commission itself.

The Commission plans to deliver the complete collection to every major public and senior school library in West­ern Australia. It is also available on the Internet and for sale through Western Australia’s State Law Publisher. The LRCWA transferred sales of all publications to the State Law Publisher this year to increase accessibility for the public to the Commission’s work product. The

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Commission’s web-site <http://www.wa.gov.au/lrc/> now links to that of the State Law Publisher.

New references

The LRCWA anticipates two new references on topics canvassed more than a decade ago by the Australian Law Reform Commission: Aboriginal Customary Law (Project 31) and Contempt (Project 35). As these refer­ences develop, further details will be available on the LRCWA’s web-site. A more comprehensive discussion of these new projects will be published in the next issue of Reform.

Bangladesh Law Commission

Established in 1996, the Bangladesh Law Commission is comparatively young. It consists of three members who are supported by three Senior Research Officers, a Secretary and a small administrative staff. Despite the short period during which it has worked and its small size, the Commission has done considerable work in rec­ommending law reforms in Bangladesh.

In one of it first initiatives the Bangladesh Law Com­mission prepared a report on the need for revision of the Admiralty Act of 1890 and also prepared a draft Bill incorporating the suggested reforms. It is believed the proposed law will cater to the need of the latest devel­opment in mercantile marine and modern international trade and commerce by sea.

The Commission has recommended the establishment of exclusive money loan courts to deal with people who have defaulted on loans from scheduled banks. Cur­rently, sub-judges act in the place of such courts in addi­tion to their regular functions. Special procedures for the expeditious implementation of judgments from money loan courts have also been recommended by the Commission.

Recognising the importance of intellectual property law, the Commission has proposed amendments to the Copy­right Ordinance of 1962 and prepared a draft Bill. The

Bill aims to cover the latest advances in information and publication technology (computer programming, web-site, Internet, e-mail, photocopy) and to respond to international standards and requirements of the Agree­ment on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

The Commission has also proposed reforms to the Arbi­tration (Protocol and Convention) Act of 1937 and the Arbitration Act of 1940 to make provision for the imple­mentation of foreign arbitral awards in Bangladesh. The reforms would also ensure expeditious implementa­tion of the national arbitral awards as judgments of the courts. The amendments proposed by the Commission follow model laws outlined by the United Nations Com­mission on International Trade Law (UNCITRAL).

Another project undertaken by the Commission has been to assist in framing proposals to facilitate the sep­aration of the judiciary from the executive. The Com­mission has examined relevant laws and the Constitu­tion of Bangladesh to create a separate independent judiciary in place of the existing magistracy, which has both judicial and administrative power.

The Commission’s landmark legal opinion on the Indemnity Act of 1975, paved the way for the alleged killers of Bangladesh’s first President to go on trial. Sheikh Mujibar Rahman and most of his family mem­bers were killed during a military coup in 1975. The Indemnity Act of 1975, which was purported to be part of the Constitution, had indemnified the killers of the ex-President. The Commission was of the opinion that the impugned Act was not part of the Constitution and therefore could be repealed by a vote of simple majority in the parliament.

In other projects:

• The Commission has made recommendations to the government for facilitating expeditious disposal of suits in the lower courts - both civil and criminal.

• A Commission sponsored workshop has recommended the formation of a separate investigating agency for criminal cases.

• The Commission has recommended the inclusion of Section 114A in the 1872 Evidence Act, which provides that the police are responsibile for the injury or death of

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any person in police custody unless proved otherwise.

• The Commission has made recommendations and given opinions for enhancing the rights of women and children, including signing or acceding to some interna­tional instruments on these issues.

Presently the Commission is working on amending and improving the Ombudsman Act 1980, which is yet to enter into force. The Commission is also working on the reform of Hindu family laws in Bangladesh and prepar­ing a draft Hindu family Bill of reforms.

Law Reform Commission of

Hong Kong

Privacy & the media

After studying the law in relation to the protection of personal data, surveillance and the interception of com­munications, the privacy sub-committee of the Law Reform Commission of Hong Kong released a consulta­tion paper The Regulation of Media Intrusion in August last year. The purpose of the consultation paper was to examine whether there was a need to introduce legisla­tive or other measures to regulate unwarranted media intrusion.

Since any measures to protect individuals from media intrusion would impact on free speech and press free­dom, the consultation paper started by examining the relationship between the right of privacy and freedom of expression.

The sub-committee then reviewed the situation in Hong Kong and considered whether the press had unjustifi­ably intruded upon individual privacy in the exercise of press freedom. After going through scores of cases taken from the news media, the sub-committee concluded that media intrusion is a problem that needs to be addressed.

At the time the consultation paper was published, there was no press council in Hong Kong to adjudicate com­plaints from the public about press intrusion, nor were there any news ombudsmen appointed by media organ­

isations. The sub-committee was of the view that self­regulation could not provide the answer.

The sub-committee then proceeded to examine whether and to what extent the existing frameworks under the Personal Data (Privacy) Ordinance and the Broadcast­ing Authority Ordinance could be utilised to regulate media intrusion. It took the view that additional mea­sures were not required if existing avenues could be utilised to provide redress to victims of media intrusion.

Since the Privacy Commissioner for Personal Data may issue guidelines for the observation of the Data Protec­tion Principles under the Personal Data (Privacy) Ordi­nance, the sub-committee recommended that a code of practice on the collection and use of personal data for journalistic purposes should be issued by the Commis­sioner.

The sub-committee argued that the data protection leg­islation was of limited effect in regulating media intru­sion. It pointed out that most of the cases of unwanted publicity related to personal data collected by means that complied with the Collection Limitation Principle, that is, by means which were both lawful and fair in the circumstances. It was also not a breach of the Use Lim­itation Principle for a newspaper to publish, against the wishes of the data subject, personal data collected by a journalist for journalistic purposes even though the publication amounted to an unwarranted infringement of privacy. Furthermore, the Privacy Commissioner could not be proactive in ensuring that the news media complied with the Data Protection Principles.

The sub-committee, therefore, concluded that further measures were required to give more effective protec­tion to individual privacy in the context of media intru­sion.

The focus of the sub-committee was on the print and broadcast media. Whereas the broadcasting industry is regulated by the Broadcasting Authority Ordinance, the press industry is largely unregulated. The sub-commit­tee, therefore, dealt with intrusion by broadcasters and intrusion by newspapers separately

Insofar as the Broadcasting Authority Ordinance pro­vides a readily available mechanism to regulate the activities of broadcasters, the sub-committee recom-

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mended that the Broadcasting Authority should adopt in its Codes of Practice on Programme Standards provi­sions protecting individuals from intrusion by broad­casters.

In relation to intrusion by newspapers, the sub-commit­tee recommended that an independent Press Council for the Protection of Privacy should be created. Since vol­untary self-regulation was absent or ineffective, the sub-committee argued that the council should be cre­ated by legislation. The object of the legislation would be to establish an independent self-regulatory body which was modelled on press councils in other jurisdic­tions, but with statutory powers to regulate press intru­sion.

Under the proposals, members of the Council would be appointed by an independent Appointments Commis­sion, which would, in turn, be appointed by an indepen­dent person invited by the Chief Executive of the Hong Kong Special Administrative Region. The sub-commit­tee hoped that this arrangement would keep the gov­ernment at arm’s length from the appointment process.

To command the confidence of both the press and the public and to ensure that both privacy and press free­dom would be taken into account in its adjudications, half of the members would be drawn from the public and the other half from the press. To ensure the appli­cation of the rules of natural justice, the sub-committee recommended that the Chair should be a retired judge or a senior lawyer.

The Council would be charged with the responsibility of issuing a code of conduct on privacy-related matters. It would also receive complaints about breaches of the code, initiate its own investigations, attempt concilia­tion, and rule on alleged breaches of the code.

Where the Council ruled against a newspaper, it could require the newspaper to publish an apology or correc­tion. The Council could also issue a reprimand and impose a fine in serious cases.

To ensure that offending newspapers would comply with the adjudications of the Council, newspapers that failed to publish an apology or correction required by the Council would also be liable to a fine.

In an attempt to comply with the procedural require­ments in Article 14 of the International Covenant on Civil and Political Rights, the sub-committee recom­mended that any person aggrieved by a decision of the Council might appeal to the Court of Appeal.

The text of the consultation paper on media intrusion is available on the Internet at <www.info.gov.hk- /info/media-e.htm>. Published together with the Media Intrusion Paper was the consultation paper on Civil Liability for Invasion of Privacy, which is available at <www.info.gov.hk/info/privacy-e.htm>. The consultation period of both papers ended in November last year. The sub-committee will review its proposals in the light of the responses and submit a report to the full Commis­sion in due course.

South African Law Commission

Security legislation

The South African Law Commission released its report on security legislation in December 1999. The report fol­lows an investigation into South Africa’s Interception and Monitoring Prohibition Act 127 of 1992.

The review and rationalisation of South Africa’s security legislation was undertaken to ensure that the legisla­tion is in accordance with international norms, the Con­stitution and present requirements of the country.

The main provisions of the Bill, contained in the report,

are outlined below.

• The regulation of the interception of cellular commu­

nications.

• The insertion of a definition of ‘communication’ into the Act to ensure that any conversation or communica­tion can be intercepted.

• The addition of further offences in the definition of ‘serious offence’ to fall within the ambit of the Act.

The Bill provides that communications between a legal representative and his or her client may not be inter-

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cepted or monitored, except if on reasonable grounds, the judge is satisfied that such a legal representative is involved in, or aiding or abetting a serious offence or an offence threatening the security of the Republic.

Upon application, the judge may direct further addi­tions or amendments to an existing directive, if he or she is satisfied that it is necessary.

Telecommunication services must have the capacity to be monitored. The costs of enabling a telecommunica­tion service to be monitored shall be carried by the telecommunication service provider.

A service provider will not be responsible for decrypting any encrypted communication unless the facility for encryption forms part of the service rendered by the ser­vice provider.

The South African Police Service, the South African National Defence Force, the Intelligence Agency and the Secret Service shall - at state expense - equip, operate and maintain central monitoring centres for the autho­rised monitoring of conversations or communications.

Telecommunication service providers shall ensure that proper records are kept regarding identities and addresses of customers. Providers should also require positive identification from clients when providing telecommunication services.

Telecommunication service providers shall provide such information regarding customers to the South African Police Service, the South African National Defence Force, the Intelligence Agency or the Secret Service, as may be required by an officer or member, to fulfil the functions and exercise the powers authorised by law.

If a judge considers any case to be sufficiently urgent, the procedure set out in the Act may be dispensed with and the matter may be dealt with in such manner and subject to such conditions as the judge may deem fit. In appropriate cases, this could include the granting of an oral directive followed up by written application incor­porating the terms of the directive within one week. Where an oral directive is issued, the judge must reduce it to writing within two days.

The use of any information obtained through the appli­cation of the Act, or any similar Act in another country, as evidence in any prosecution is subject to the decision of a Director of Public Prosecutions or an Investigating Director.

Information regarding the commission of any criminal offence, obtained by means of any interception or moni­toring in terms of the Act, or any similar Act in another country, may be admissible as evidence in criminal pro­ceedings.

Other projects * *

Draft reports on juvenile justice and the review of the law of insolvency were expected to be considered by the Commission in February.

Two discussion papers have already been approved for publication by the Commission and will be published early this year. They are:

• Simplification of the criminal procedure: The right of the Attorney-General to appeal on questions of fact.

* The application of the Bill of Rights to the criminal law, the law of criminal procedure and sentencing.

Publications of the South African Law Commis­sion are available on the Commission’s web-site at <http://www.law.wits.ac.za/salc/salc.html>.

Law Commission of Canada

The Law Commission of Canada divides its research agenda into four themes - governance relationships, economic relationships, personal relationships and social relationships.

One area of research within the social relationships theme examines the capacity of the justice system to express and reinforce shared values and to rebuild frag­ile communities. The Commission’s project on transfor­mative justice explores some of the dynamics of conflict and how we might imagine a response to conflict that

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resonates with Canadians’ expectations of a justice sys­tem.

The Commission’s research on transformative justice confronts us with the complex question of how to respond to conflict. Conflict is an elemental feature of society because it engages us in defining and responding to right and wrong. So much of our lives is bounded by situations of conflict that we are often unaware of how events and practices come to be defined as conflict. For this reason the implications of the strategies we use to respond to conflict often pass unnoticed.

While some conflicts can cause deep and long-lasting physical and emotional harm, conflict is not just a neg­ative feature of social life. Conflict can have many posi­tive features. Conflict teaches us right from wrong and fosters moral growth and development. On a societal level, conflicts help establish what is and is not accept­able behaviour. Conflicts allow us to examine, reaffirm or revise standards of behaviour against competing interests.

Conflict thus presents a challenge and an opportunity for a society. The goal of social policy cannot be simply to eliminate conflict - an impossible task. It is, rather, to capitalise on the transformative potential of conflict, to use conflict as a springboard for moving towards a more just society.

Conflict and our response to it are directly connected to our individual and social conceptions of what justice requires. Our sense of justice and injustice is aroused when we face situations of conflict. Our sense of justice is affirmed when we are able to resolve conflict to our satisfaction.

The Canadian public seems to be losing confidence in the capability of the justice system to respond to its needs and expectations. Civil courts are inaccessible to increasing numbers of people. But beyond the issue of accessibility, Canadians’experience of justice in the civil courts has come to be characterised by disenchantment and a sense of disenfranchisement. The situation is mir­rored in the criminal justice system. Victims and offend­ers are detached from the criminal process. Police, courts and corrections professionals recognise that they are reaching the limits of the current system’s capacity to respond effectively to crime. Both the general public

and professionals are concerned that current policy and practices leave much to be desired. Both are searching for new methods to resolve conflicts.

Restorative justice begins from the premise that the most effective response to conflict is to repair the harm done by the wrongful act. Material and symbolic repa­rations begin the process of restoration, but restoration means more than receiving compensation. For those harmed, restoration means repairing the actual damage caused by wrongdoing and restoring their sense of con­trol over their lives. For wrongdoers, restoration involves accepting responsibility for their actions by repairing any harm that they caused and dealing with the issues that contributed to the wrongdoing. For the community, restoration means denouncing wrongdoers’ behaviour and assisting victims and offenders in their process of restoration.

Most restorative justice programs rest on the following three principles.

• Crime is a violation of a relationship among victims, offenders and the community.

• Responses to crime should encourage the active involvement of victim, offender and community.

• A consensus approach to justice is the most effective response to crime.

Wherever possible, restorative justice programs bring wrongdoers, those who have suffered harm and commu­nity members together to work through the aftermath of a crime in a manner that reflects and responds to the needs of all parties.

Many issues must be confronted before the full potential of restorative justice can be realised. These include, coming to terms with where and how coercion surfaces in a restorative justice program, the responsiveness of restorative justice to the needs of victims, the role of the community, and how restorative justice coincides with broader shifts in public administration.

Notwithstanding these concerns, restorative justice can also help the law build a framework for handling other kinds of conflict. Many of the concerns expressed by vic­tims and offenders about the criminal justice process have parallels in the civil justice system. Non-criminal

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dispute resolution in the courts is costly and time con­suming. Injured parties have little control over the process and often find it incomprehensible. Issues are framed in legal language rather than in terms of how they are experienced by the parties involved. Judicial remedies are not always consistent with how the parties to the conflict would have resolved the issue if they had been given the opportunity.

Transformative justice is a way of handling conflict that recognises and responds to the variety of harms caused by conflict and capitalises on the opportunities offered by conflict by bringing individuals together in a process that encourages healing and growth.

Over the course of the next year, the Commission will put this belief to the test. The Commission has initiated a project to fund case studies of innovative conflict res­olution strategies in non-criminal law domains such as environmental law, family law, bankruptcy law, con­sumer law and landlord-tenant law. Taking a cue from restorative justice, the Commission’s research agenda will examine the extent to which a transformative approach to dispute resolution is capable of changing the relationships between parties to the conflict. The power of restorative justice is the ability to use conflict to encourage growth and development. The same poten­tial exists in conflict in non-criminal domains. A trans­formative approach to conflict resolution would encour­age accommodative relationships between groups with competing interests. The conflict situation would be transformed from one in which groups are in competi­tion with one another to one in which groups recognise their mutual interests in arriving at workable solutions.

People encounter conflict - both criminal and non-crim­inal - because of the inter-connectedness of their lives. In some sense then, there is an inevitability to conflict. How we respond to conflict is a choice that we make. The Law Commission of Canada believes that restora­tive justice and transformative justice present new pos­sibilities for responding to conflict in a positive and con­structive manner by using conflict to encourage the development of strong and respectful relationships.

The Commission encourages members of the interna­tional law reform community to explore this possibility with us.

The discussion paper From Restorative Justice to Transformative Justice is available at <http://www.lcc.gc.ca>. Readers are invited to respond to the discussion points contained in the document.

Alberta Law Reform Institute

The Institute will have a minor rush of publications during the first quarter of 2000. A consultation memo­randum, Wills: Non-Compliance With Formalities, has been posted on the Institute’s web-site. Alberta, unlike many other jurisdictions, does not have a substantial compliance or harmless error provision in relation to wills. The question is whether Alberta should have such a provision and what form it should take.

A final report and an Annotated Code on Powers and Procedures for Administrative Tribunals in Alberta were being completed at the time of publication. The report recommends the repeal and replacement of the Administrative Procedures Act, and includes an Anno­tated Model Code from which tribunals can draw their powers and procedures.

Our final report on Cost of Credit will explain the devel­opment of the cost of credit disclosure provisions that the Institute initiated, guided through the Uniform Law Conference of Canada, and made available to the Work­ing Group of the Consumer Measures Sector of the Agreement on Internal Trade. The legislation came into effect on 1 September 1999 and can be found in Part 9 of the Fair Trading Act.

Another final document responds to the request by the Minister of Justice to review issues that had been raised with respect to occupiers’ liability for non-commercial recreational use of land. Other jurisdictions have spe­cific statutes dealing with this kind of activity. Our report will set out some of the choices that are available to the government, and the policy implications flowing from those choices.

The final element in our publication inventory will he a consultation memorandum on the subject of class

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actions. The memorandum will set out the basic ques­tion of whether new legislated class proceedings provi­sions are needed to replace the existing, and somewhat antiquated, provisions of Rule 42 of the Rules of Court. If such provisions are needed, a further question will be asked to determine whether the provision should follow the model set out in the Uniform Law Conference of Canada Class Proceedings Act.

Organisational review * •

The Institute is also in the final stages of a major organ­isational review, which commenced in the northern autumn of 1998. The review was centred around three major topic areas:

• Relevance. How does the Institute choose its projects and why? What influences do the public or other groups have on this choice? Are the choices correct and defensi­ble?

• Responsiveness. Can the Institute respond in appro­priate time frames? Can it meet its own internally set time frames and deadlines?

• Product. Do the Institute’s reports and recommenda­tions meet the deliverables expected of the organisa­tion? Does the process allow for flexibility in adapting the end product to the needs of Albertans?

The methodology for the review took place in three stages. Between October 1998 and March 1999 exten­sive internal and external interviews and information gathering took place. On the basis of this, our consul­tants prepared a descriptive situational analysis. From February to March 1999, staff and counsel conducted a review of operations, procedures, goals, and skill sets necessary to achieve those ends, and produced a state­ment of the ideal roles that staff and counsel might play in Institute operations. From September to October, the board conducted a review of its own roles and operations and reviewed proposals from the staff retreat. A number of changes in both procedure and approach have been approved and are currently being implemented. Janu­ary 2000 was a major implementation date.

Perhaps the most interesting of the changes relates to the project selection process and the two approved pilot projects, relating to class proceedings and to authorised trustee investments.

This pilot process depends on an active gathering — from as broad a community as possible — of all of the potential topics that could be turned into projects. Once that list is refined to a manageable number, a descrip­tion of the topic, the issues and some of the conse­quences is distributed to groups within the community who may have an opinion on the issue, or who may be affected by potential proposals. At this stage, the ques­tion is not what should be the solution, but whether ‘the community’ feels there is an issue that needs to be addressed. If there is clear support for addressing the issue, then a business plan is developed, setting out the resources, methodology, time lines, and the expectations of the participants. The business plan becomes an inte­gral part of the eventual approval of the project by the board, if that occurs. The pilot project should demon­strate whether the potential benefits of the improved process can be realised. The potential benefits include:

• greater ‘community’ commitment to the project, which should pay dividends at the implementation stage;

• greater ‘community’ involvement, which should improve the information and data that a project has to deal with; and

• a more defensible basis for prioritising the topics that the board eventually chooses and to which the board dedicates further Institute resources.

The Institute is sure it is not alone in carrying out this kind of organisational review, and many of the issues are shared by other law reform agencies. The meeting of law reform agencies, being hosted by the Law Reform Commission of Western Australia in March, will be an important forum for sharing both issues and informa­tion.

Alberta Law Reform Institute publications are available online at <http://www.law.ualberta.ca/alri>

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