Law reform process
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The process for each law reform project may differ according to the scope of inquiry, the range of key stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry. While the exact procedure needs to be tailored to suit each topic, the ALRC usually works within a particular framework when it develops recommendations for reform. The ALRC typically has two inquiries in progress at any one time, and, with staggered timetables, completes 1-2 inquiries in a year.
Terms of Reference
The Australian Government identifies an area of Commonwealth law that needs to be updated, improved or developed for various reasons including:
- there is community concern about a particular issue that needs to be addressed through the process of law reform
- recent events or legal cases have highlighted a deficiency with the law
- scientific or technological developments have made it necessary to update the law or create new laws.
The Attorney-General may then refer an inquiry (also known as a reference) to the ALRC into the area of law the Attorney-General has identified as needing reform. This written request is called the "Terms of Reference" (TOR).
The TOR set out the subject matter of an inquiry and define its goals. The first stage of the inquiry for the ALRC is to examine the TOR and decide the scope of the inquiry—what falls inside and outside its boundaries.
The TOR for each ALRC inquiry are published on this website and at the beginning of every Consultation Document and Final Report, all of which are found in the Publications section.
The ALRC conducts research and consultations with stakeholders. Inquiry stakeholders may include: government departments, courts, legal professionals, industry groups, non government organisations, special interest groups, academics and other members of the community. Essentially, the ALRC seeks to consult with people who have expertise and experience in the laws under review, as well as people likely to be affected by the laws in question.
Once a project is underway, the ALRC usually forms an advisory committee or panel of experts.
Members of these committees are selected because of the expertise of each committee member in a particular area relevant to the area of law under consideration. An advisory committee will not necessarily include representatives from each stakeholder group, as these may be consulted separately.
An advisory committee has particular value in helping the ALRC identify key issues, and in providing quality assurance in the research and consultation processes. Advisory committees usually meet at least twice during an inquiry, before the publication of a consultation document and final report. Committees may give advice on questions, proposals and recommendations, however advisory committees do not make recommendations in any ALRC inquiry. Final recommendations are made by the ALRC, according to the process established under the governing legislation.
Producing publications is a key way the ALRC involves the community in the process of law reform. The number of consultation documents produced during an inquiry varies according to the needs of the inquiry and its timeframe, but usually consists of an Issues Paper, Discussion Paper and Final Report. Sometimes, if the timeframe is quite short, the ALRC will only produce one consultation document—a Consultation Paper—and then the Final Report.
An Issues Paper is usually the first official publication of an inquiry. It provides a preliminary look at issues surrounding the inquiry and often suggests or outlines principles which could guide proposals for reform. It serves to educate the community about the range of issues under consideration, and invites feedback in the form of submissions.
A full list of the Commission's Issues Papers is available on this website.
The ALRC makes a formal call for submissions whenever it releases an Issues Paper or Discussion Paper. Through the submissions it receives, the ALRC can gauge what people think about current laws, how they should be changed and can test its proposals for reform with stakeholders prior to finalising them.
Submissions can contain comments on matters raised in an Issues or Discussion Paper, or might discuss anything relevant to the topic under review. Anyone is welcome to make a submission.
The Commission accepts submissions in several ways—either in hard copies that can be faxed, posted or emailed to the ALRC or via an online submission form—to allow as many people as possible to participate in law reform. They can be on behalf of individuals or groups.
Naturally there are many different views advanced through submissions, and the evaluation of submissions is not like a ballot. The ALRC considers the opinions and arguments expressed in submissions together with other forms of consultation and in-depth research.
When writing a report, the ALRC selects quotes from submissions that are expressive of different views and which illustrate the scope of stakeholder perspectives.
The ALRC publishes public submissions on its website as soon as practicable.
Find out more about how the ALRC uses and provides access to submissions.
Discussion Papers are typically much more detailed documents than Issues Papers. They provide a detailed account of ALRC research to that point, including a summary of the various consultations and submissions undertaken and received, and set out draft proposals for reform. Following the release of a Discussion Paper the ALRC will call for further submissions and undertake additional consultation.
A full list of the Commission's Discussion Papers is available on this website.
The recommendations in the Final Report describe the key reforms that the ALRC considers should be made either to laws or legal processes.
In formulating recommendations, the ALRC draws not only on submissions, but also face to face consultations, academic and industry research, international research and models, and its considerable experience in law reform.
During the process of formulating recommendations, the ALRC has regard to any policy aims expressed in the Terms of Reference and the principles for reform identified for each particular inquiry, against which possible recommendations are assessed.
The ALRC is also directed by its Act, the Australian Law Reform Commission Act 1996 (Cth), to ensure its recommendations remove defects in the law, simplify the law, update it and provide improved access to justice, amongst other things.
Coming to a final recommendation is, therefore, a process where many different inputs are balanced to achieve desirable policy outcomes.
Each inquiry culminates in a Final Report, which must be delivered to the Attorney-General by the date specified in the Terms of Reference.
The Final Report makes specific recommendations for changes to the law or legal processes. It also describes in detail the ALRC’s research and explains how the ALRC has arrived at its recommendations for reform.
The ALRC also produces a Summary Report to accompany the Final Report. It provides an accessible reference to the final recommendations and the key elements of reform.
The Final Report is under embargo until it is tabled in Parliament. After tabling, it is made publicly available.
ALRC Final Reports are available on this website. Reports are produced in html and PDF and those published since 2012 are also available as ebooks, free to access and download. The ALRC produces a small number of bound copies of its Final Reports and they are available for purchase from the ALRC. ALRC Reports can also be accessed through the national libraries network.
The Attorney-General is required to table the Final Report in Parliament within 15 sitting days of receiving it, after which it can be made available to the public.
The Australian Government decides whether to implement the recommendations, in whole or in part. There is no set time frame in which the Government is required to respond, and some reports are implemented several years after they have been completed. Implementation of ALRC recommendations is tracked and recorded each year in the ALRC’s Annual Report.