Law Council President attended the Prime Minister’s Cybersecurity Roundtable
On 27 February 2023, the Law Council President attended the Prime Minister’s Cybersecurity Roundtable, leading a session on regulatory reform and harmonisation of laws relating to cybersecurity.
The roundtable brought together leaders from the Government, and independent experts from business, industry and civil society and was a valuable opportunity to identify key areas of concern with the patchwork of legislative and regulatory norms governing cyber security issues in Australia.
The roundtable allowed for wide-ranging discussion of whole-of-government issues relating to cyber security in the lead up to the finalisation of the 2023-2030 Australian Cyber Security Strategy (the Cyber Security Strategy).
Prior to the roundtable, the Australian Cyber Security Strategy Expert Advisory Board released its discussion paper entitled 2023-2030 Australian Cyber Security Strategy (the Discussion Paper) which canvasses some of the key challenges that will be considered by the Cyber Security Strategy.
The 2023-2030 Australian Cyber Security Strategy will guide cyber security policy and initiatives under four key areas:
- a secure economy and thriving cyber ecosystem;
- a secure and resilient critical infrastructure and government sector;
- a sovereign and assured capability to counter cyber threats; and
- Australia as a trusted and influential global cyber leader, working in partnership with our neighbours to lift cyber security and build a cyber resilient region.
Notably, an area of focus in this consultation is enhancing and harmonising regulatory frameworks by making explicit the range of implicit cyber security obligations through corporations, consumer, critical infrastructure, privacy and other regulatory frameworks.
In this regard, some key challenges include:
- a fragmented approach to reforms to privacy laws, both in terms of the collection and control of personal information, and enforcement options for serious breaches;
- a network of overlapping governance requirements for managing cyber security risks, including through the Privacy Act, director’s duties, APRA prudential standards, and sector specific obligations such as those imposed on telecommunications providers and financial institutions;
- inconsistencies in how entities are required to report on cyber incidents, including in terms of time frames, materiality thresholds and types of agencies and regulators to be notified - especially in industries that are already heavily regulated; and
- an expanding list of organisations being brought into the Security of Critical Infrastructure framework, either directly or as part of a supply chain for infrastructure assets with national significance.
The Law Council’s overarching position on these challenges is that any changes should enhance proportionality, consistency, and certainty within the regulatory landscape. Disjointed and siloed reforms in response to cyber threats will not achieve this goal. The Law Council also considers that the costs and benefits of regulatory intervention be carefully considered ensuring the appropriate balance of regulatory intervention and industry-led best practice.
The Law Council will be engaging with Constituent Bodies to solicit feedback on the list of detailed questions raised in the Discussion Paper to inform its future advocacy to Government.
Inspector-General of Intelligence and Security and Other Legislation Amendments (Modernisation) Bill 2022 (Cth)
On 24 February 2023, the Law Council made a submission to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the provisions of the Inspector-General of Intelligence and Security and Other Legislation Amendments (Modernisation) Bill 2022 (Cth) (the IGIS Bill).
The IGIS Bill seeks to amend the Inspector-General of Intelligence Act 1986 (Cth) (IGIS Act) by expanding the Inspector-General of Intelligence and Security's (Inspector-General) oversight functions and powers, preventing the heads or deputy heads of intelligence agencies from being appointed to act as Inspector-General immediately after serving in their posts, and easing reporting and information sharing procedures affecting the Inspector-General.
In its submission, the Law Council indicated support for measures that ensured that heads and deputy heads of the very agencies overseen by the Inspector-General could not become the Inspector-General as soon as they left office. Support was also given to amendments to the IGIS Act to allow the Inspector-General to investigate intelligence agencies’ human rights breaches without the need for a referral from the Australian Human Rights Commission (AHRC).
To improve the IGIS Bill, the Law Council recommended, amongst other matters, that accountability and transparency processes for the appoint of the Inspector-General might be strengthened by including eligibility and selection criteria for the office in the IGIS Act and by requiring that candidates must be approved by the Parliamentary Joint Committee on Intelligence and Security.
The Law Council also suggested that, to preserve an explicit and direct institutional link between the Inspector-General and AHRC, the IGIS Bill should include a provision to allow for investigations to be conducted by the Inspector-General on the basis of referrals made by the Commission.
In keeping with its policy position on the need for the privilege against self-incrimination and legal professional privilege to be adequately protected, the Law Council also proposed, first, that clauses should be added to the IGIS Bill to require that the Inspector-General only use powers to compel individuals to incriminate themselves as a last resort and, second, that evidence derived from self-incriminatory or legally privileged material compulsorily disclosed to the Inspector-General should not be used against the compelled person.
The Law Council is grateful to its Privileges Committee, National Criminal Law Committee and National Security Law Working Group for assistance in the preparation of the submission on the IGIS Bill.
The Parliamentary Joint Committee on Intelligence and Security is due to report on the IGIS Bill by 17 March 2023. The Law Council will monitor the Committee’s recommendations and any amendments to the IGIS Bill that follow.
Read more here.
Climate-related financial disclosure - Consultation Paper
On 2 March 2023, the Law Council made a submission to the Treasury in relation to its Climate-related financial disclosure - Consultation Paper.
It is recognised that the transition to a low-carbon economy to mitigate the impact of climate change will produce financial risks for organisations involved in producing fossil fuels or whose business models rely upon using such fossil fuels or are energy intensive. Climate-related financial disclosures are made by an organisation to demonstrate the manner in which they are identifying, measuring, addressing and incorporating climate-related financial risks, generally under the themes of governance, strategy, risk management, metrics and targets.
While in Australia these disclosures are subject to practice guidance published by the Australian Prudential Regulation Authority, increasingly, international jurisdictions are imposing schemes which regulate the making of climate-related financial disclosures. Further, an International Sustainability Standards Board (ISSB) has been established ’to develop a comprehensive global baseline of high-quality sustainability disclosure standards to meet investors’ information needs’.
In this context, the Australian Government has committed to introducing standardised, internationally aligned reporting for climate-related risk disclosures and the Treasury Consultation Paper asked a number of questions to inform the establishment of such a scheme.
The Law Council submission expressed support for the establishment of domestic regulatory scheme imposing standards on business entities in respect of climate-related financial disclosures. In circumstances in which Australian business entities are adopting an uneven approach to climate-related financial disclosures in the context of existing guidance, the Law Council expressed support for the development of an appropriate framework to promote certainty, clarity and transparency within affected entities.
The Law Council also submitted that aligning with international reporting standards (manifesting in the ISSBs) is crucial to ensure the availability of capital, finance and insurance for Australian enterprises by providing investors and other stakeholders with consistent and internationally comparable information on climate-related impacts.
The Law Council submitted that it is critical, however, that the development of a regulatory scheme is properly adapted to Australia’s unique corporate regulatory settings. It identified challenges arising, for example, in relation to:
- the reporting of forward-looking statements, in which uncertainty is inherent, given such uncertainty is not tolerated within current regulatory settings;
- present domestic requirements for continuous reporting for material changes to forward-looking statements, given material changes may commonly arise; and
- the unique exposure of company directors to personal liability should reporting standards be breached.
In addition to taking care to adapt current settings to the unique regulatory challenges arising from domestic application of the ISSB standards, the Law Council also suggested that consideration may be given to a moratorium on penalties and exposure to damages for non-compliance, by the reporting entity and its directors and officers, for an introductory period while entity conduct adapts and new norms and principles solidify.
Read more here.
Vacancies for the Chair and Members of the Independent Communications Committee
The Department of Finance is seeking expressions of interest to serve as the Chair and Members of the Independent Communications Committee (ICC). The roles are suitable for senior professionals in a range of disciplines.
The ICC provides independent review of Australian Government advertising campaigns with budgets over $250,000. The Committee reviews campaigns against a set of principles to ensure campaigns are relevant, objective, not party political and undertaken in an efficient, effective and relevant manner.
ICC members need a broad range of skills and experience. Previous members have had experience in communications, governance, business management, law, as board members and as senior public servants. Not all members need to have experience in advertising and communication roles.
The roles are part time, can be undertaken from anywhere in Australia, and the Chair and Members are paid an hourly rate for preparation and attendance at meetings.
Applications close 31 March 2023. Apply here.
L-R: Bronwyn Lincoln, Robert Johnston, Peter Woulfe, Katherine Hooper, Chelsea De Silva
Attorney-General of Australia: Hon Mark Dreyfus KC, MP
The Federal Litigation and Dispute Resolution Section successfully hosted the Commonwealth Law Conference in Melbourne
On 24 February 2023, the Law Council of Australia’s Federal Litigation and Dispute Resolution Section hosted the Commonwealth Law Conference in Melbourne. This event provided a great opportunity to gather again in person after two-years of hybrid meetings, with a significant turn out of delegates from across the country. The conference covered a broad range of topics presented by leading lawyers in federal law, in house counsel, members of the judiciary and federal tribunal members.
The Section looks forward to hosting another conference in 2024.
LCA Submissions
Recently published Law Council Submissions.
Select Committee on Foreign Interference through Social Media, Department of the Senate
Review of the Inspector-General of Intelligence and Security and Other Legislation Amendments (Modernisation) Bill 2022, Parliamentary Joint Committee on Intelligence and Security
Climate-related financial disclosure, The Treasury
Scoping the establishment of a federal judicial commission, Attorney-General's Department
Access to offenders’ superannuation for victims and survivors of child sexual abuse, The Treasury
Inquiries and consultations
As of 10 March 2023
- Family Law Amendment Bill 2023, Attorney-General's Department
Token mapping, The Treasury
Targeted review of offences for human trafficking, slavery and slavery like practices in Divisions 270 and 271 of the Criminal Code, Attorney-General's Department
Sexual consent laws in Australia, Legal and Constitutional Affairs References Committee
Rationalisation of ending ASIC Instrument Measures, The Treasury
Electronic Transaction Act Consultation, Attorney-General's Department
Consumer Credit Regulations, The Treasury
Anti-avoidance provisions for credit product intervention orders, The Treasury
Migration, Pathway to Nation Building, Joint Standing Committee on Migration
Consultation on Cultural Heritage Protection Reform Options, Department of Climate Change, Energy Environment and Water
Government response to the Privacy Act Review Report, Attorney-General's Department
Register of Foreign Ownership of Australian Assets, The Treasury
Additional improvements to Corporations and Financial Services Law, The Treasury
Consultation Paper: Review into an appropriate cost model for Commonwealths anti-discrimination laws, Attorney-General's Department
Plant breeder’s rights reform, IP Australia
2023-2030 Australian Cyber Security Strategy Discussion Pape, Department of Home Affairs
News and Media
Media releases/statement:
Protecting Australians’ human rights, 8 March 2023
Key media articles:
Humans integral: 'No place in court for robot lawyers', The Australian, 07 March 2023
New voice for NSW regional women lawyers launched, Lawyers Weekly Australia, 08 March 2023
National peak body for Aboriginal-controlled community organisations urges further reforms to close the gap, National Indigenous Times, 08 March 2023
David Pocock says offshore asylum seekers ‘victims of our collective political failure’ as evacuation bill defeated, The Guardian, 08 March 2023
Youth Justice: Raising age of criminal responsibility gathers pace, Law Institute of Victoria, 09 March 2023
Upcoming Events
The Law Council of Australia’s Federal Litigation and Dispute Resolution Section will be hosting its annual Immigration Law Conference on 17-18 March 2023. The conference will be conducted over two days and will canvass current issues in Australian immigration law.
To view the program and registrate here: https://lawcouncil.asn.au/event/immigration-law-conference-2023
The Federal Litigation and Dispute Resolution Section invites you to attend a seminar held by the Alternative Dispute Resolution Committee. The event will be chaired by Mary Walker OAM, Barrister, 9 Wentworth Chambers, Sydney NSW.
The seminar is complimentary, registrations are now open and close 5pm, 19 March 2023: https://lawcouncil.asn.au/event/adr-seminar-2023
Join the International Law Section for this next edition of the 2023 Authors' Series to explore emerging themes at the intersection of the VCLT, international investment law, and ISDS in an interactive format. The program will draw upon ideas elaborated in the recently published book, The Vienna Convention on the Law of Treaties in Investor-State Disputes: History, Evolution, and Future, edited by Esmé Shirlow & Kiran Nasir Gore (Wolters Kluwer, September 2022). Chaired by Suzanne Howarth..
Registration is free, however registration is required. registrations are now open and close 6 April 2023: https://lawcouncil.asn.au/event/authors-series-the-vienna-convention-of-the-law-of-treaties-in-investor-state-disputes-history-evolution-and-future
LAWASIA and the Sabah Law Society are very pleased to invite the participation of members and legal professionals at the 12th LAWASIA Employment Law Conference, to be held in Kota Kinabalu (Sabah), Malaysia, from 8 to 10 June 2023.
Registrations are now open! Learn more and register here: https://lawasiasabah2023.com/
The 2023 National Access to Justice and Pro Bono Conference will be held in Brisbane from 21–23 June 2023.
For the first time since March 2019, members of the legal assistance sector from around the country will come together to explore the various challenges and opportunities associated with enhancing access to legal services and pro bono work.
Registrations open in the coming weeks so check back here soon for further information about the Conference: https://lawcouncil.asn.au/event/2023-national-access-to-justice-and-pro-bono-conference.
The 2023 National Access to Justice and Pro Bono Conference will be co-hosted by the Law Council of Australia, the Australian Pro Bono Centre, and the Queensland Law Society.
