Current Projects

Items placed on the SCAG agenda require national cooperation and:

• raise an issue of national significance
• raise an issue that affects all or most jurisdictions
• require the leadership of SCAG and could not be pursued through an alternative forum
• raise an issue that affects a significant proportion of the population or if the issue affects a small proportion there should be other reasons why the issue is important, such as marginalisation of the affected group, or
• otherwise warrant the attention of SCAG for a specific and unique reason.

• To endorse the principles of accessibility, appropriateness, equity, efficiency and effectiveness
• The National Partnership Agreement in relation to legal aid funding will come into effect on 1 July 2010
• To a review of the interrelationship of the Commonwealth and State and Territory justice systems
• That the Commonwealth should request the Productivity Commission to undertake a review of the measures and indicators of efficiency and effectiveness for the civil justice system in Australia
• To develop a harmonised approach for options for greater cost recovery of justice services
• To develop options for a national approach to ensure that people have seamless access to information and services and a vehicle to get the most appropriate service
• That the Commonwealth Minister for Financial Services, Superannuation and Corporate Law will build upon the work already done by SCAG on the regulation of litigation funding by considering the extent to which litigation funders should be regulated by the Australian Securities and Investment Commission (ASIC).

Indigenous justice
Indigenous justice issues are complex and difficult to address. The statistics reveal the disproportionate involvement of Indigenous people within the justice system as victims, offenders and affected families. Indigenous justice issues were the primary focus of SCAG’s meeting on 6-7 August 2009 in Alice Springs. Ministers used the meeting as an opportunity to frame SCAG Ministers’ role in addressing Indigenous disadvantage, in particular, their responsibility for fostering safer Indigenous communities. As a result of this meeting Ministers:

• endorsed the National Indigenous Law and Justice Framework as a national policy approach in November 2009
• agreed to identify and evaluate existing programmes, so that Governments can make targeted funding decisions
• agreed to develop ‘Justice Closing the Gap targets’ with the view to including such targets in future COAG reform packages

• to significantly reduce the gap in Indigenous offending and victimisation and to accurately track and review progress with a view to reviewing the level of effort required to achieve outcomes
• to ask First Ministers to refer to COAG the possible adoption of justice specific Indigenous closing the gap targets, acknowledging that in many instances their relative occurrences are due to variable factors outside the justice system.

• pursuing opportunities for mutual recognition within the justice sector
• undertaking a cost-benefit analysis of possible reforms to harmonise registration of interests in land, and
• developing a project plan to harmonise forum non conveniens, choice of court and choice of law rules across Australia in line with international standards.

In November 2009, Ministers agreed to convene a roundtable conference comprising litigation experts and other stakeholders to be hosted by the Commonwealth to resolve outstanding policy and drafting concerns with current legislation with a view to settling a final uniform model by July 2010. In May 2010, Ministers agreed to instruct the Parliamentary Counsel's Committee to draft model proportionate liability provisions and that, when finalised, these will be released for public consultation. The model provisions are currently being finalised.

R18+ classification for computer games
On 14 December 2009, the Commonwealth Minister for Home Affairs released a discussion paper on whether an R 18+ classification for computer games should be introduced. In May 2010, Ministers considered the preliminary outcomes of the public consultation and requested further analysis of community and expert views. On 10 December 2010, Ministers considered further work done to analyse community and expert views.

Ministers considered draft new Guidelines for the Classification of Computer Games at their meeting on 4 & 5 March 2011, and also considered the proposed amendments to the National Classification Code to support the introduction of an R18+ classification for computer games. Ministers agreed to make a decision regarding the introduction of an R18+ classification at the July 2011 SCAG meeting.

In July 2011, Ministers made a decision in principle, to introduce an R18+ category for computer games. NSW abstained. Ministers:

• agreed to take the Guidelines for the Classification of Computer games, as amended at the meeting, to their respective Cabinets
• agreed in principle, with the exception of the NSW Attorney General who abstained, that the Commonwealth introduce the proposed amendments to the National Classification Code to support the introduction of an R18+ category
• agreed, with the exception of the NSW Attorney General who abstained, to commence drafting amendments to their enforcement legislation to reflect the introduction of an R18+ category for computer games
• agreed that it would be desirable for classifications of existing games to be reviewed in light of the new classification Guidelines.

SCAG Achievements

SCAG has developed and implemented uniform and model laws harmonising, in a number of significant areas, legislation between the Commonwealth, States and Territories. Some of SCAG’s achievements over the past decade include:

Child Protection Offender Register
Commercial arbitration
Crimes at sea
Cross vesting / corporations law
De-facto relationships referral of power
Defamation
Electronic transactions
Evidence
Interstate and international transfer of prisoners
Model Criminal Code
National Judicial College of Australia
National legal profession model laws project
Penalty regimes for disruptions at critical energy infrastructure sites
Professional standards
Proof of identity framework
Spent convictions
Succession: uniform laws
Suppression orders
Tort law reforms
Use of restricted material in research
Vexatious litigants

Child Protection Offender Register
In conjunction with the Ministerial Council for Police and Emergency Management – Police (formerly the Australasian Police Ministers’ Council) SCAG has developed the National Child Protection Register. By October 2007 legislation had commenced in all States and Territories establishing registers in their jurisdictions as part of a national approach to child protection. The general objective of the Register and its supporting legislation is to ensure that persons convicted of sex offences and other serious offences against children are able to be monitored by police once they have served their sentence.

Commercial arbitration
Existing uniform Commercial Arbitration Acts operating across Australia were developed under the auspices of SCAG. However, this legislation requires modernisation and updating. Ministers have instructed the Parliamentary Counsel’s Committee to draft a new model commercial arbitration Bill based on the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration. In May 2010, Ministers agreed to implement the model Commercial Arbitration Bill 2010.

Out of session in July 2010, Ministers agreed to conduct further consultation on section 27D of the model Commercial Arbitration Bill 2010. Consultation was undertaken during April 2011. In July 2011, Ministers noted that submissions to the consultation on section 27D of the model Commercial Arbitrationi Bill 2010 expressed different views on the formulation of the section. Ministers agreed to clarify that consent to an arbitrator resuming arbitration following mediation should be obtained after the termination of the mediation in the form contained in the NSW Commercial Arbitration Act 2010.

Crimes at sea
SCAG developed and implemented a uniform Commonwealth/State legislative scheme to deal with offences occurring offshore.

Cross vesting / corporations law
SCAG had an instrumental role in the development and implementation of the national legislative scheme (including State referral of powers) for corporations. SCAG had previously developed and implemented earlier schemes for regulation of corporations. In July 2000, at a joint meeting of SCAG and the Ministerial Council on Corporations (MINCO), the states and territories agreed to refer their constitutional powers over corporations to the Commonwealth Parliament for the purpose of a national legislative scheme – the Corporations Act 2001 (Cth). MINCO is the Ministerial Council with responsibility for the consideration of proposals for amendment of the Corporations Act and related legislation.

De-facto relationships referral of power
SCAG has developed and implemented several referrals of State power to the Commonwealth to enable the Family Law Act 1975 (Cth) to be more comprehensive in its Australia-wide operation. In November 2002 SCAG finalised a framework for the referral of power to deal with property disputes on the breakdown of de-facto relationships. All States other than Western Australia have referred their powers to the Commonwealth.

Defamation
All States and Territories have implemented the Model Defamation Bill developed by SCAG and have signed the Defamation Intergovernmental Agreement.

Electronic transactions
The Commonwealth’s Electronic Transactions Act 1999 (ETA) gives effect to the United Nations Commission on International Trade Law Model Law on Electronic Commerce (1996). The ETA provides that transactions taking place under a law of the Commonwealth will not be invalid simply because they are completed electronically. To achieve national uniformity, between 2000 and 2003, all States and Territories passed uniform Electronic Transactions Acts developed through SCAG. The UN Convention on the Use of Electronic Communications in International Contracts was adopted by the UN General Assembly in November 2005. In November 2008, Ministers released a discussion paper on proposed amendments to the Electronic Transactions Model Laws to implement obligations under the 2005 Convention. Following completion of the consultation process, Ministers issued drafting instructions to the Parliamentary Counsel’s Committee for a model Bill in line with the proposals contained in the discussion paper.

In May 2010, Ministers agreed to enact the Model Electronic Transactions Amendment Bill 2010 to implement the United Nations Convention on the Use of Electronic Communications in International Contracts 2005.

Evidence
In July 2007 SCAG considered and endorsed a Model Uniform Evidence Bill, which is based on the Uniform Evidence Act 1995 (NSW) and Uniform Evidence Act 1995 (Cth) with amendments as recommended by the Australian Law Reform Commission in its report Uniform Evidence Law (ALRC 102). The Model Uniform Evidence Bill has been introduced in four jurisdictions (the Commonwealth, NSW, Tasmania and Victoria).

The SCAG Evidence Working Group worked on a second phase of evidence reforms, and with the assistance of the Parliamentary Counsel’s Committee, developed model provisions for the inclusion of: mutual recognition of self incrimination certificates issued under sections 128 or 128A; the definition of unavailability of persons; and amendments to the Professional Confidential Relationship Privilege to address journalist shield issues. In May 2010, Ministers agreed to the inclusion of these model provisions in the Model Evidence Bill (2nd Tranche Amendment 2010 and Professional Confidential Relationship Privilege Bill 2010). Ministers also agreed on seven principles that will be applied as the minimum standard for protection of sexual assault counselling communications in Australia, if jurisdictions legislate to restrict the disclosure of sexual assault counselling communications in criminal trials.

Ministers noted that jurisdictions may choose to enact further improvements to vulnerable witness protections taking into account the approach to court procedures in each jurisdiction. SCAG has now considered all of the key recommendations arising from the Australian, NSW and Victorian Law Reform Commissions' 2005 report on Uniform Evidence Law.

Interstate and international transfer of prisoners
SCAG developed and implemented the original legislation dealing with interstate transfer of prisoners and approved the draft model Prisoners (Interstate Transfer) Amendment Bill 2004 to improve that scheme. SCAG also coordinated the introduction and implementation of a national scheme for the international transfer of prisoners.

Model Criminal Code
SCAG has developed (and continues to develop) a model criminal code. This model has been used as the basis for the Commonwealth criminal code and has been implemented to varying extents in the States. The Model Criminal Code covers areas such as theft, fraud, bribery and related offences; property damage and computer offences; offences against the person – non fatal offences, sexual offences; serious drug offences; public order offences – contamination of goods offence; crimes against humanity – sex slavery offences; and bushfire offences. The Model Criminal Law Officers' Committee (MCLOC) has discussed a broad range of amendments to these provisions since it was established. The Commonwealth Criminal Code has utilised and implemented much of the MCLOC work. Some achievements include the development of:

• model Forensic Procedures legislation;
• provisions on female genital mutilation; and
• model Mental Impairment legislation.

• the law of wills (1997 and 2006) – this dealt with the formalities of making wills;
• family provisions (1997 and 2004) – this dealt with the issues arising when a deceased person has not made adequate provision for family members and certain other classes of persons;
• intestacy (2007) – this dealt with issues arising when a deceased person has not made a will; and
• the administration of estates of deceased persons (2009).

• Evidence by interstate and international video links
• Parentage presumptions
• Amendments to contributory negligence and breach of contract
• Portability of restraining orders
• Interchange of judges
• National Coronial database
• Sea Carriage Documents