Standing Council of Attorneys-General communiqué

The Standing Council of Attorneys-General (SCAG) was held on 9 December 2022 by videoconference. The meeting was chaired by the Hon Mark Dreyfus KC MP, Commonwealth Attorney‑General. All jurisdictions were represented by Ministers or Senior Officials.

Enduring powers of Attorney

Participants noted the progress in developing proposals for Enduring Powers of Attorney law reform and alternative models for a National Register of Enduring Powers of Attorney. Participants agreed to consider further information on these proposals prior to public consultation in 2023.

Improving indigenous justice outcomes

Participants noted the Australian Government’s First Nations Justice commitments aimed at Closing the Gap and improving the lives of Indigenous Australians, including $81.5 million in new funding for community-led justice reinvestment projects and a national independent justice reinvestment unit. Turning the tide on First Nations incarceration rates requires Commonwealth, state and territory governments to work in partnership with First Nations people and organisations. In recognition of this, participants noted the importance of all levels of government collaborating and partnering with First Nations people to enable the successful and holistic implementation of justice reinvestment in communities across Australia, and of continued discussions between jurisdictions to progress this important work.

Participants agreed to release a draft report on the Age of Criminal Responsibility, which was originally prepared for the then Council of Attorneys-General (CAG) but was never agreed by all jurisdictions at officer level nor provided to CAG for consideration. The 2020 Draft Report gave detailed consideration to the existing legal and policy framework and the reforms that could be considered to raise the age of criminal responsibility. However, the Working Group identified the need for further work to occur regarding the need for adequate supports and services for children who exhibit offending behaviour. This is the current focus of the reconvened Age of Criminal Responsibility Working Group, which is now co-chaired by Western Australia and the Commonwealth.

Participants noted that, since that time, in November 2021, State Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements.

Participants also noted that, in November 2022, the Northern Territory passed legislative reforms to raise the minimum age of criminal responsibility to 12, and in September 2022 the Australian Capital Territory committed to raising the minimum age of criminal responsibility to 14.

[email protected]

The implementation of the [email protected] Report has been a focus of all jurisdictions, in recognition that sexual harassment is unacceptable in any context. The Standing Council of Attorneys-General continues to provide an important forum to ensure that the legal frameworks operating across all jurisdictions effectively prevents and responds to workplace sexual harassment.

Participants:

  • noted jurisdictions’ updates in relation to the implementation of the [email protected] Report, including their response to recommendation 26 (alignment of sexual harassment and sex discrimination laws) and recommendation 39 (protections for victims of sexual harassment as witnesses in civil proceedings).
  • agreed that officials will continue to work together to discuss progress and share analysis, research, findings and experiences to inform the consideration of recommendation 26 of the [email protected] Report.
  • agreed that a final report be provided to the Standing Council of Attorneys-General on the implementation of recommendation 26 of the [email protected] Report by mid‑2023.
  • endorsed a Working Group Report to the Standing Council of Attorneys-General on recommendation 39, regarding the extent to which current procedural protections in civil proceedings extend to victims of sexual harassment, with an executive summary of the report to be published.
  • agreed to prioritise consideration of legislative amendments in line with the procedural protections identified in the text of recommendation 39 and the Working Group Report, with officials to provide an update on their progress by the end of 2023.
  • agreed to consider, either collectively or individually, other areas for future action to improve procedural protections for alleged victims of sexual harassment who are witnesses in civil proceedings, including by:
    • conducting further research to further understand the need for amendments to broader witness protections in civil proceedings for victims of sexual violence, or vulnerable/special witnesses beyond those who have experienced sexual harassment, and
    • improving justice sector guidance on protections available to victims of sexual harassment.

Forced Marriage

Participants agreed to tackle the issue of forced marriage through a coordinated national response under the Standing Council of Attorneys-General, including by developing a model to enhance civil protections and remedies for individuals in, or at risk of, forced marriage.

Harmonisation of journalist shield laws

Participants noted Recommendation 15 of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) report into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. Recommendation 15 of the PJCIS report asks the Australian Government to promote discussions around the harmonisation of state and territory laws that protect journalists’ confidential sources (‘shield laws’), the scope of those protections, and the public interest considerations that may warrant those protections being cast aside. The PJCIS report also asks the Australian Government to ensure any reforms reflect the shifting digital media landscape.

Participants agreed to work together to consider ways to harmonise shield laws, or bring greater consistency to, shield laws.

Independent review of the National Legal Assistance Partnership (2020-25)

Participants agreed that the terms of reference (ToR) for the independent review of the National Legal Assistance Partnership 2020-25 (NLAP) be based on the minimum requirements of the NLAP, as specified in clause 82, and enhanced by specific areas of focus.

Participants:

  • agreed that the terms of reference (ToR) for the independent review of the National Legal Assistance Partnership 2020-25 (NLAP) be developed based on the minimum requirements in the NLAP (clause 82) with specific areas of focus around:
    • quantum, allocation (including distribution channel/mechanism) and prioritisation of funding that includes all Commonwealth funded legal assistance programs; and
    • the current reporting framework, including alternative approaches to measure NLAP outcomes.
  • agreed that, while the review will consider all legal assistance programs funded by the Australian Government including those outside of the NLAP, individual evaluations of specific service models will be outside the scope of the review.
  • noted that final arrangements of the review including ToR will be agreed by February 2023 at SCAG in or out of session, to enable the review to commence April 2023 and be finalised by December 2023.
  • noted that costs will be shared between the Commonwealth, States and Territories as per the NLAP (clause 87).

Optional Protocol to the Convention Against Torture (OPCAT)

Participants agreed to provide costings to the Commonwealth about anticipated funding required to set up a fully operational National Preventive Mechanism (NPM).

Participants continued to discuss work necessary to achieve full implementation of OPCAT.

National co-ordinated legislative prohibitions on ‘Spit Hoods’

Participants:

  • noted that Non-Government Organisations (NGOs) continue to express concerns about the ongoing use in some cases of spit hoods on both adults and children in detention. While spit hoods are used to protect police, corrections and other workers from acquiring a communicable disease or otherwise being harmed by being spat on or bitten by a detainee, the use of spit hoods can cause significant harm and distress to the wearer.
  • agreed to discuss, including with their Ministerial counterparts with relevant portfolio responsibilities, the issue of residual use of spit hoods.

Stage 2 Review of the model defamation provisions

On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions. This is subject to final agreement in the first half of 2023.

Participants noted the significant work that has been undertaken by the interjurisdictional Defamation Law Working Party, led by NSW, since the exposure draft Part A Model Defamation Amendment Provisions were released in August 2022 for public consultation. A large stakeholder roundtable was held in September and 36 written submissions were received. Careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements to the Part A amendments. The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries.

The amendments include:

  • Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results
  • A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B)
  • A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online
  • A requirement that courts consider balancing factors when making preliminary discovery orders
  • Updates to the mandatory requirements for an offer to make amends for online publications

Participants agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 for defamation law and report back to the Defamation Law Working Party in the first half of 2023.

Participants noted an update on Part B of the Stage 2 Review, led by Victoria, which considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies.

Participants noted that consultation on the Part B reforms was finalised in October 2022 and that stakeholder feedback is informing final policy recommendations and amendments to the Model Defamation Provisions. This will enable consideration and agreement of the final Part B amendments in 2023.

Participants agreed in principle that there should be a review of the Stage 1 and Stage 2 amendments to the Model Defamation Provisions beginning no later than 3 years after the commencement of the Stage 2 amendments (for both Part A and B) in all states and territories.

Access scheme for digital records after death or incapacity

Participants:

  • Agreed to provide drafting instructions to the Parliamentary Counsel’s Committee (PCC) for the development of uniform model legislation for a national access scheme for digital records after death or incapacity.
  • Noted that officials will work with PCC to prepare draft model laws for public consultation in 2023.

Strengthening Criminal Justice Responses to Sexual Assault Update

Participants reaffirmed their commitment to improving the experiences and outcomes for victim and survivors of sexual assault in the criminal justice system. This will continue to be a priority for participants over the coming year, and over the course of the Work Plan to Strengthen Criminal Justice Reponses to Sexual Assault 2022-2027.

The NSW Attorney General provided an update on the NSW Child Sexual Offences Evidence Program.

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