Commonwealth Law Ministers met in Sydney, Australia, on 11 to 14 July 2011. The Meeting, which was attended by Law Ministers and Attorneys-General from 44 countries, was opened by the Commonwealth Secretary-General, HE Mr Kamalesh Sharma. In surveying the many important and practical matters in the agenda before the Meeting, he spoke of access to justice for all citizens as fundamental to the work of Law Ministers and of the continuing importance of the Latimer House Principles to the Commonwealth as a whole. The Meeting elected as its chairperson the Hon Robert McClelland MP, Attorney-General of Australia, who shared the chairing of the meeting with the Hon Brendan O'Connor MP, Minister of Home Affairs and Justice of Australia.
The Meeting had as its theme 'Fostering a just and secure Commonwealth'. It addressed many of the challenging issues currently faced by Commonwealth member states in today's fast-changing social, economic and legal environment. In the discussions, there was an awareness of the special needs of small jurisdictions with limited legal resources. Ministers hoped that their decisions would enhance their already close co-operation and the work of the Commonwealth Secretariat in securing the Rule of Law to the benefit of all their citizens.
The Meeting received a comprehensive report on the legal work undertaken by the Commonwealth Secretariat, and particularly its Legal and Constitutional Affairs Division, since the last Law Ministers Meeting in 2008. Law Ministers welcomed Mr Akbar Khan, Director of the Legal and Constitutional Affairs Division since October 2009, who spoke of the highlights of the Secretariat's Rule of Law programme since 2008 and of the current moves to refocus and prioritise the work to be undertaken. Ministers noted that, despite resource constraints, the work of the Division continued to be wide-ranging and of high quality. Notwithstanding this, Ministers encouraged the efforts to sharpen the focus of the work of the Secretariat. Ministers thought that it might be desirable to identify at each triennial meeting themes around which the work of the Secretariat could be planned and organised.
Ministers recognised that the effective administration of justice required not only an independent judiciary of high competence but also an efficient court system. In many countries, the courts face a number of challenges: chronic delays, the need to reform procedural rules, the introduction of alternative dispute resolution processes and case management systems, and the deployment and effective use of modern technology. There had developed in recent years a valuable but largely unco-ordinated practice of international judicial development assistance. Ministers noted that a number of Commonwealth countries had established judicial training institutes; some of the courses provided by these institutes were already attended by judges from countries which had no equivalent resources. The Pacific Judicial Development Programme had a number of projects in 14 Pacific island countries designed to enhance the professional competence of judicial officers and the processes and systems they use. Ministers recognised the particular circumstances of small states and their special needs in the design and delivery of programmes.
a. to mandate the Commonwealth Secretariat to establish or enable the establishment of an online 'clearing house' which would co-ordinate information as to what judicial development assistance programmes had been provided by Commonwealth countries to other countries, and would receive and assess applications for judicial development assistance and notify them to those member states which might have the capacity to respond to such requests, having regard to regional considerations.
b. that the Secretariat would develop a framework which Commonwealth countries could adopt with the aim of better co-ordination and targeting of international judicial development assistance, addressing the needs of recipient countries. The framework would ensure that assistance provided was based upon consistent standards of approach, enabled programmes to draw on previous experience, avoided duplication and had a rigorous approach to evaluation.
The Meeting recalled the Commonwealth Climate Change Action Plan, endorsed by Commonwealth Heads of Government in 2007. Climate change represents a threat to human security, even to the existence of some Commonwealth member states. It threatens the progress of development by reducing access to drinking water and causing desertification, putting agriculture and direct access to means of subsistence at risk.
d. that where appropriate, co-operation between member states with regard to immigration policies may be further developed and the Commonwealth Secretariat may provide such assistance as states may require; and e. that the Commonwealth should offer assistance to small developing states in particular in raising awareness of climate change and its impact, and taking adaptation measures to lessen the inevitable impacts of climate change.
The Meeting received a paper prepared by the Commonwealth Magistrates' and Judges' Association (CMJA) presenting the preliminary results of an examination of the position of magistrates within the Commonwealth, 'magistrate' for this purpose including all judges serving in a court which is not a court of unlimited jurisdiction in civil or criminal matters. The paper recorded concerns that in some Commonwealth jurisdictions the independence of the magistracy was without legislative protection; that appointments were made by processes which were not transparent; that in some countries magistrates' security of tenure was limited; and that adequate resources were not always made available to magistrates' courts. Ministers shared the experiences of their jurisdictions and noted the importance of issues such as those of remuneration and judicial pensions and of the accountability of magistrates.
to consider taking appropriate steps to strengthen their domestic legal frameworks and other measures for assuring the independence and integrity of their magistracy in compliance with the Commonwealth fundamental values, having due regard to the suggested Guidelines.
The Meeting received a paper prepared by the International Committee of the Red Cross (ICRC) on the international weapons related treaties adopted in recent years. These treaties prohibit or restrict the use of certain conventional weapons and seek to deal with the dangerous explosive remnants left after armed conflicts including those remaining in a number of Commonwealth countries. The Convention on the Prohibition of Anti- Personnel Mines of 1997 and the Protocol to the Conventional Weapons Convention on Explosive Remnants of War 2003 (Protocol V) have now been joined by the Convention on Cluster Munitions adopted in 2008. Negotiations are continuing at an international level on the topic of arms trade in conventional weapons. Ministers were informed of the West African (ECOWAS) Initiative on arms trade which has supported its member states on the implementation of rules relating to the trade in conventional weapons and the development of measures and processes for the control of their import and export. Ministers noted that in some jurisdictions, matters relating to conventional weapons did not fall within the province of Law Ministers.
b. that the Commonwealth Secretariat may be invited, in co-operation with the International Committee of the Red Cross (ICRC), to assist states to ratify the various weapons related treaties and to put domestic law in place to fulfil their obligations under such treaties; and c. to give legal support to enable their respective countries to participate actively in the 2012 Diplomatic Conference to negotiate a truly effective Arms Trade Treaty (ATT), that complies with International Humanitarian Law.
Ministers discussed the issue of forced or servile marriages which constituted a human rights violation that impeded individuals' most basic and fundamental rights. Many forced marriages had a transnational quality and their prevention could require active co-operation between the states concerned.
a. to reiterate their support for the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and b. to note the useful discussion of measures that member states can take to protect women against forced and servile marriage and agree to consider actions to support the rights of women in such circumstances and to share best practices between member states.
The Meeting recognised that the increasing international mobility of people, assets, goods and services means that more businesses and individuals are involved in international civil and commercial transactions. The secure planning of such transactions would be served by better mechanisms for obtaining reliable and authoritative information about the laws and practices of other legal systems. Where litigation took place, courts would be assisted by closer judicial co-operation with the courts and administrative agencies of other countries, in such matters as the service of process and obtaining evidence abroad.
Ministers judged that there could be value in a Commonwealth scheme that could usefully supplement existing international conventions including those of the Hague Conference. This would be a counterpart to the existing Harare Scheme for Mutual Assistance in Criminal Matters. It would draw on the shared legal traditions of the Commonwealth but would also reflect the development of modern information and communication technology and the agreements made in recent years between some Commonwealth member states.
to mandate the Secretariat to develop a proposed Scheme on international civil legal co-operation for consideration at the next meeting of Senior Officials.
A feature of this Meeting was a special thematic session on cybercrime introduced by presentations followed by a High Level Ministerial Panel Discussion. The starting-point was a recognition that the use of technology in the commission of crime presented significant challenges to government, law enforcement and to individuals and businesses. Much personal information was now available in the Internet, creating possibilities for identity theft and other forms of fraud. The rapid pace of technological change continually threatened to outpace efforts at regulation, and many offences had a transnational character to which the traditional territorial approach of the criminal law was ill-suited: the sharing of information between national law enforcement agencies was essential. Many countries have found it necessary to create extra-territorial offences, making certain types of conduct punishable even when committed abroad.
Ministers received a presentation on an example of successful international co-operative work to deal with an Internet-based paedophile ring. The Meeting heard of legislation, specialist agencies and awareness-raising material developed in Australia, Botswana and Canada, noting that the issues were of equal importance to developing countries. There was a sharing of the experience of many jurisdictions. Ministers noted the existence of a comprehensive international instrument, the Council of Europe's 2001 Convention on Cybercrime, the work which led to the preparation of the Commonwealth draft Model Law on Computer and Computer Related Crime in 2002, and of regional efforts in West Africa.
b. that the Commonwealth Secretariat form a multidisciplinary working group of experts to review the practical implications of cybercrime in the Commonwealth and identify the most effective means of international co-operation and enforcement, taking into account, amongst others, the Council of Europe Convention on Cybercrime, without duplicating the work of other international bodies; and c. that the Working Group collaborate with other international and regional bodies with a view to identifying best practice, educational material and training programmes for investigators, prosecutors and judicial officers.
The Harare Scheme relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth has for a quarter of a century provided a constructive and pragmatic approach to mutual co-operation between Commonwealth countries in combating transnational crime. At their Meeting in Edinburgh in 2008, Ministers asked for a comprehensive review of the Scheme in the light of the contemporary upsurge and increased sophistication of transnational criminal activity. The present Meeting received the results of this review in the form of a revised and updated Scheme including new provisions as to the interception of telecommunications and postal items; covert electronic surveillance; the use of live video links in the course of investigations and judicial procedures; and asset recovery. The revised Scheme which, like other rules and guides issued by the Commonwealth Law Ministers, provides a non-binding arrangement for the widest possible co-operation in criminal matters between Commonwealth countries is to be applied in a flexible manner in compliance with domestic law and international law. It does not preclude police-to-police co-operation.
a. to adopt the revised and updated Harare Scheme relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth; and b.
the development and delivery of capacity-building initiatives by 30 June 2013, in particular on the interception of telecommunications and asset recovery, to further enhance international co-operation within the Commonwealth; and iii the promotion of the Commonwealth Network of Contact Persons and other similar networks.
The Secretariat will report to the next Senior Officials meeting on progress in developing this body of work.
The Commonwealth Heads of Government Meeting gave the Commonwealth Secretariat an anti-corruption mandate in 2005. The majority of Commonwealth member states have become parties to the United Nations Convention against Corruption and the Secretariat, as part of its response to the mandate, prepared a Commonwealth Legislative and Technical Guide to the Convention, which was approved by Law Ministers in 2008. This Guide has been kept under review and the present Meeting received an Updated Guide, which contains up-to-date guidance, not only on legislative issues, but also on global best practice, and provides a comprehensive point of reference for member states still preparing to implement the Convention and for those seeking to review and update their legislation and practice.
b. to approve the Secretariat's programme of work in combating corruption including publication and dissemination of the Guide; and c. to approve delivery of a series of criminal justice system regional or country specific training programmes incorporating anti-corruption modules.
Ministers received a study commissioned by the Secretariat on the minimum human rights standards available to detainees at the pre-trial stage in selected countries of both the civil law and common law traditions. The study, by the British Institute of International and Comparative Law contained recommendations on applicable human rights standards and best practices.
to take note of the paper which was suitable for publication as a research paper by the British Institute of International and Comparative Law (BIICL).
Ministers recalled the Commonwealth Statement of Basic Principles of Justice for Victims of Crimes which they adopted at their Meeting in Accra in 2005. One aspect of justice for victims is their protection and support as witnesses throughout an investigation and subsequent proceedings. Witnesses who are not themselves the victims of crime may also need protection and support.
a. to approve the Best Practice Guide for the Protection of Victims/Witnesses in the Criminal Justice Process (the Guide); and b.
to assist member countries with specific training on request; and iv to facilitate pro-bono mentoring and placements to develop sustainable capacity- building in areas of victim/witness assistance and protection by 30 June 2012.
In recent years both Law Ministers Meetings and Meetings of Law Ministers and Attorneys-General of Small Commonwealth Jurisdictions have considered two related issues: that of promoting alternative sentencing and that of the overcrowding in prisons and the excessive use of pre-trial detention in many countries. At their 2008 Meeting, Law Ministers requested the Commonwealth Secretariat to work with Commonwealth member states to formulate a strategy towards reducing the overall number of prisoners held in detention. Ministers now note that the issue was considered in depth last year at the Twelfth United Nations Congress on Crime Prevention and Criminal Justice. Rather than continuing with a separate Commonwealth study, Ministers agreed to make use of the UN material.
a. to consider the material set out in Annex A to paper LMM(11)15; and b.
i expansion of the Alternative Sentencing Programme by incorporating the United Nations recommendations as topics for analysis and discussion at future regional meetings; and ii delivery of technical assistance relating to alternative sentencing/prison population reduction to individual member countries, upon request.
This work is to be delivered by 30 June 2013. The Secretariat is to report on progress at the next meeting of Senior Officials.
At their Meeting in Edinburgh in 2008, Law Ministers considered prosecution disclosure obligations and mandated the Commonwealth Secretariat to undertake a comparative study of the approach to prosecution disclosure in criminal proceedings in Commonwealth member states, paying attention also to other critical considerations, such as witness protection, defence disclosure and the wider public interest. The Secretariat was to identify international best practices; to develop model legislative provisions and detailed guidance addressing the issue of disclosure, particularly in relation to unused material; and to conduct related training programmes. Ministers received a Model Criminal Disclosure Act and related Model Prosecution Disclosure Guidelines produced in fulfilment of that mandate.
b. to encourage member countries to draw on the model disclosure legislation and guidelines to the extent that it assists each member country in addressing these issues; and c.
assistance to member countries with specific training requests; and iii the facilitation of pro-bono mentoring and placements to develop sustainable capacity-building in prosecution disclosure and related areas.
The Meeting welcomed HE Judge Sang-Hyun Song, President of the International Criminal Court, and witnessed the signing by the President and the Commonwealth Secretary-General of a Memorandum of Understanding on Co-operation between the Commonwealth Secretariat and the International Criminal Court. The Secretary-General recalled that Commonwealth Heads of Government are committed to end impunity for perpetrators of genocide, crimes against humanity and war crimes and attach importance to building national capacity through the implementation of the Rome Statute of the International Criminal Court. President Song spoke of his pleasure at signing a historic Memorandum of Understanding and of being able to do so in the presence of Law Ministers from all parts of the world. Both the Commonwealth and the International Criminal Court were of global significance in upholding the Rule of Law, and the President noted with pleasure that over half the Commonwealth member states had already become parties to the Rome Statute.
The Meeting recognised that for a state to become a party was but the first step and that implementing legislation covering a range of matters (which would vary from state to state) was required. In 2004 a Commonwealth Model Law on the implementation of the Rome Statute was adopted. Revision of the Model Law has become appropriate to take account of developments following the Kampala Review Conference held in June 2010 and to reflect the various amendments made to the Rome Statute. Ministers received a revised draft Model Law.
c. to request the Commonwealth Secretariat to carry out further work with a view to consideration of the inclusion of provisions relating to the crime of aggression within the model law in due course; and d. to request the Commonwealth Secretariat alone or in partnership with other relevant organisations to undertake pan-Commonwealth and regional activities aimed at promoting the revised model law for adoption by member countries, together with the provision of expert technical assistance, as required, in respect of the ratification and implementation of the Rome Statute.
At many of their Meetings, including that in Edinburgh in 2008, Law Ministers have examined the difficulties facing their legislative drafting offices. They are acutely aware that the difficulties in the recruitment and retention of drafters remain major impediments to the realisation of policy objectives in many Commonwealth states. External expertise could prove valuable, but effective drafting required a full understanding of the legal context in a particular jurisdiction and of the policies underlying legislative proposals. At their present Meeting, Ministers addressed practical issues around financial and technical resources.
a. to give explicit support to Secretariat initiatives aimed at identifying extra-budgetary resources for drafting.
d. the Secretariat should continue to encourage drafting offices in regions to form networks for sharing ideas and proposals on funding. The Secretariat may then be in a position to co-ordinate a 'network of networks' whose combined input will be more persuasive to donors seeking maximum breadth and depth in their assistance; and e. recalling that previous Law Ministers Meetings have recognised that recruitment and retention of drafters remain a concern, putting in place measures to retain drafters including through the creation and maintenance of well-structured drafting offices and through the provision of training the trainers courses in order to promote sustainability in the drafting field.
c. the implementation of the legislation management system as a pilot project in the legislative drafting offices in some selected Commonwealth jurisdictions; and d. the setting up of an Advisory Group drawn from experts including those in the Commonwealth Association of Legislative Counsel to assist in the development of software.
Law Ministers at the Edinburgh Meeting in 2008 requested work on the modalities for civil society engagement with them in view of the Commonwealth's commitment to the involvement of civil society organisations (CSOs) in key deliberative processes such as Ministerial and Heads of Government Meetings. It was necessary at the same time to respect the need for confidentiality and protect Law Ministers from inappropriate and untimely lobbying. A set of proposed modalities was before the present Meeting.
a. that the growing influence of civil society in Commonwealth processes should be recognised without diminishing the relevance of intergovernmental processes. Indeed the relevance of the Commonwealth may be enhanced through constructive engagement with relevant CSOs.
b. that constructive engagement of civil society can strengthen intergovernmental deliberations by informing them, sensitising them to public opinion and grassroots realities and increasing public understanding of their decisions; and c. that in the circumstances Senior Officials are tasked to develop proposals to enhance and achieve a more constructive engagement with CSOs for further consideration by Ministers within the next 12 months so that the modalities can be agreed by the next meeting of Senior Officials.
Ministers recalled their discussion at their Meeting in Edinburgh in 2008 on how the Commonwealth Secretariat could refocus and redefine its Rule of Law programme in order to ensure that it remained relevant, co-ordinated and effective in the delivery of assistance to member states. They received the report of an Expert Group which had met in March 2011 under the chairmanship of the Hon Michael Kirby AC CMG of Australia to formulate recommendations.
e. that mandates involving the development of a scheme or model legislation necessarily involve capacity-building to support and facilitate its implementation.
g. that as new mandates are given, the implications for work on existing mandates should be highlighted by the Secretariat; and h. to give continued support to the Latimer House Principles, and encourage Commonwealth Heads of Government to give better effect to them.
The Meeting received a presentation by Lord Justice Thorpe, Head of International Family Justice for England and Wales, on extending the 1980 Hague Child Abduction Convention throughout the Commonwealth. He urged accession to the Convention and emphasised the need for Commonwealth member states to support the work of the Hague Conference in the field of family law, including its network of specialist judges and the Malta Process which sought to build links between states with Islamic law and other states. Ministers took note of the presentation.
Ministers received and took note of a number of reports.
e. on the activities of the Commonwealth Secretariat in the field of maritime boundaries and related Law of the Sea matters; and f.
the Commonwealth Legal Education Association (CLEA); and the Commonwealth Association of Legislative Counsel (CALC).
Ministers took part in a Forum on Women as Agents of Change held in Government House and hosted by the Governor of New South Wales, HE Professor Marie Bashir AC CVO. Law Ministers welcomed the presentation by the Hon Catherine Branson QC - President of the Australian Human Rights Commission. The participation of the Commonwealth Deputy Secretary-General was particularly welcomed as underscoring the mainstreaming of this issue in the work of the Secretariat.
In his remarks in opening the Meeting, the Commonwealth Secretary-General referred to a parallel event held in association with the Law Ministers Meeting, the Pacific Young Lawyers Forum, which had met on 10 July 2011. The Forum provided an opportunity for discussion of the ways in which the Commonwealth could assist young lawyers in Pacific countries with small legal professions. There was emphasis on the importance of supporting young lawyers' careers and providing guidance on professional conduct to address the ethical dilemmas sometimes faced by them in the course of their work. The Commonwealth's commitment to youth development led to support for the promotion of mentoring and continuing legal education as well as pro bono activities in law schools and among lawyers in Member States. There was recognition of the key role of young lawyers in providing access to justice to the poor and vulnerable. The Forum saw the inauguration of the South Pacific Lawyers Association (SPLA).
The Meeting considered a suggestion that there should be one or more organising themes for each Law Ministers Meeting which would produce a more focused agenda, while leaving room in the agenda for topical items. It was for further consideration whether the timing and frequency of Senior Officials meetings should be reviewed, but it was already clear there was a need for such a meeting in 2012 to review current work.
The meeting accepted a generous offer of Botswana to host the next Law Ministers Meeting in 2014.