Meeting with Commonwealth Lawyers Association President, Mr Brian Speers

After attending the LAWASIA ADR Conference, Commonwealth Lawyers Association President, Mr Brian Speers, visited Canberra on 14-15 September together with former Law Council President, Ron Heinrich AM.

During his short visit, President Speers had the opportunity to meet President of the ACT Law Society and Law Council Executive Member, Ms Elizabeth Carroll; President of the ACT Bar Association, Ms Rebecca Curran; CEO of the ACT Bar Association, Ms Joanne Dean-Ritchie and Chair of the Federal Litigation and Dispute Resolution Section, Mr Peter Woulfe.

President Speers and Mr Heinrich also met with the Policy and International Divisions of the Law Council Secretariat to discuss legal policy issues of mutual interest, including the proposed First Nations Voice to Parliament, modern slavery, climate change, press freedoms, the death penalty and rule of law issues in the Pacific.

51^st United Nations Human Rights Council

On 21 September, Law Council President Tass Liveris presented a video statement during the 51^st United Nations Human Rights Council in Geneva. The statement, delivered on behalf of the Law Council of Australia and the International Bar Association’s Human Rights Institute, expressed concern regarding the escalating judicial and constitutional crisis unfolding in Kiribati.

In the past four months, the Government of Kiribati has suspended the judges of Kiribati’s High Court and Court of Appeal has disabled both superior courts of record. The Law Council is greatly concerned by the lack of transparency regarding the membership and procedure of the disciplinary tribunals established to investigate alleged judicial misconduct.

Read the full statement here.

Renewed Cultural Policy 2022

On 15 September 2022, the Law Council made a submission to the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department) in relation to the development of a new National Cultural Policy (new cultural policy).

The Law Council expressed its support for the development of a new cultural policy and sought, through its submission, to highlight the importance of intellectual property law and principles to the development of that policy. In particular, the Law Council addressed the following key pillars of the new cultural policy:

· First Nations first – The Law Council submitted that while positive developments have been made in the protection of the intellectual property of First Nations peoples, Australia still lacks a holistic approach to the protection of intellectual property of First Nations peoples. The Law Council supported the Australian Government recommitting to this important work as part of its broader policy agenda.

· The Centrality of the Artist - Intellectual property laws are key to a thriving arts and cultural sector. In its submission the Law Council highlighted the various developments in this area, such as the legislative developments in copyright law, including the Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth), the Copyright Amendment (Online Infringement) Act 2018 (Cth) and the Copyright Amendment (Service Providers) Act 2018 (Cth). The Law Council submitted there may be other areas that require intervention, for example in assisting access to justice for individual creators.

In developing this submission, the Law Council drew on contributions from the Intellectual Property Committee of the Business Law Section of the Law Council and received endorsement from its Indigenous Legal Issues Committee.

Read more.

Aboriginal and Torres Strait Islander Arts and Crafts Inquiry

The Law Council made a submission to the Productivity Commission (the Commission) on 14 September 2022, in response to a draft report on the Commission’s study of Aboriginal and Torres Strait Islander visual arts and crafts.

The Commission’s Draft Report included a recommendation that the Australian Government should develop a mandatory information standard to require the labelling of ‘inauthentic Indigenous-style products’ to indicate to consumers that they are not created by or under license from an Aboriginal and Torres Strait Islander person.

The Law Council expressed its general support for a mandatory labelling scheme for inauthentic products, noting that at a conceptual level, the scheme offers the potential to help customers distinguish between authentic and inauthentic products, while avoiding placing the burden of administering the scheme onto Aboriginal and Torres Strait Islander artists and businesses.

However, the Law Council expressed strong reservations about the model proposed by the Commission, namely:

·  that the definition of authenticity (and inauthenticity) is ambiguous in scope; and

·  these ambiguities create doubt as to the level of certainty of protection which would be provided, meaning the scheme may lead to greater disputation and compound access to justice issues.

The Law Council also submitted that while proposed scheme draws heavily upon copyright law, an encompassing cultural rights legislative scheme would need to engage with a much wider range of issues. It suggested that an inquiry with a broader remit undertaken by an entity such as the Australian Law Reform Commission may be preferable. The Law Council also emphasised that must be an inquiry that is Indigenous-led, and which engages with community from the outset so First Nations’ needs, interests, and perspectives shape the law.

In developing its submission, the Law Council drew on contributions from the Intellectual Property Committee of the Business Law Section of the Law Council and the Indigenous Legal Issues Committee.

Read more.

Stage 2 Review of the Model Defamation Provisions – Part A

On 19 September 2022, the Law Council provided a submission to Part A of the Stage 2 Review of the Model Defamation Provisions currently being undertaken by the Attorneys-General. 

Part A primarily concerns the liability of internet intermediaries for third-party content.

The amendments proposed by the Attorneys-General include, among others:

· an exemption from liability for certain digital intermediaries (such as such as caching, conduit and storage services);

· new possible court orders for preliminary discovery about posters of digital matter;

· options for a new defence for publications involving digital intermediaries (i.e. responding to the High Court’s decision in Fairfax Media Publications Pty Ltd v Dylan Voller); and

· new possible court orders to prevent or limit publication or republication of defamatory digital matter.

The Law Council is also likely to respond to Part B of this review which relates to the proposal to extend absolute privilege to publications about alleged unlawful and criminal conduct against an individual. Input is requested by 26 September 2022.

Read more.