ALRC submission on the appointment of law commissioners to the Law Commissio n of England and Wales (1 September 2004)
1. The Australian Law Reform Commission (ALRC) makes the following submission to the Department for Constitutional Affairs in relation to its Consultation Paper 14/04 Appointment of Law Commissioners. The submission sets out the ALRC’s experience with the appointment of commissioners, and in particular part-time commissioners and non-judicial chairpersons.
Constitution of the Commission
2. The ALRC is established by the Australian Law Reform Commission Act 1996 (Cth) (ALRC Act). In relation to the appointment of commissioners, the provisions in the ALRC Act are largely the same as those in the original establishing Act, the Law Reform Commission Act 1973 (Cth) (the ALRC commenced operations in January 1975). Thus, the ALRC has had almost 30 years experience operating under the present provisions, or their equivalent.
3. Section 6(1) of the ALRC Act provides that the Commission consists of:
(a) a President; and
(b) a Deputy President; and
(c) at least 4 other members.
Section 8 provides that the President and Deputy President must be appointed as full-time members, but that other members may be appointed on either a full-time or part-time basis.
The ALRC currently operates with a full-time President, two other full-time members, and three part-time members. The pattern of a Commission consisting of 3–4 full-time members and 3–4 part-time members has been consistent since 1995, although the ALRC had as many as five full-time and 14 part-time members in the 1980s.
A Deputy President was first appointed in 1987. After some years experience with the position, the ALRC is of the view that the Deputy President should not be a mandatory position, and the Commission has operated without a Deputy President since 2001.[1] The position of Deputy President attracts a larger remuneration than other full-time Commissioners. Together with the prestige of the title, the position could be used to lure persons of particular status or experience to the Commission. However, in practice there is no particular defined role for the Deputy President beyond that of other full-time Commissioners, with both administrative and reference-related responsibilities shared by full-time Commissioners according to the Commission’s needs and the experience of the existing Commissioners. The role of the Deputy President only comes into play when the President is on leave or the position of President is vacant, and the Deputy President becomes the ‘Acting President’ with the full powers of the President. The ALRC has managed the absence of a Deputy President through the creation of an instrument signed by the Attorney-General of Australia appointing one of the full-time Commissioners as ‘Acting President’ during such periods.
Full-time and part-time members
The ALRC has used part-time members since it commenced operations in 1975. Until 1995, the number of part-time members exceeded that of full-time members. All other (state and territory) law reform commissions in Australia operate with a much higher ratio of part-time to full-time members. However, for the past ten years the ALRC has established a pattern of appointing roughly equal numbers of full-time and part-time members. The following sets out the roles the ALRC now expects its full-time and part-time members to play.
All members are appointed by the Governor-General on the advice of the Executive Government, and can be appointed for a maximum of seven years. All members are reappointable. In practice, full-time members are generally appointed for three year terms, and part-time members for one to three years. Several of the ALRC’s past and present part-time members have served a number of consecutive terms, often serving for longer cumulative periods than the full-time members.
As well as applying specialist knowledge in a particular field, full-time Commissioners (including the President) are the ‘team leaders’ on each reference. Full-time Commissioners are required to provide managerial, strategic and professional leadership of the highest order and play a direct, ‘hands-on’ role in research, writing and the management of research teams. They are expected to represent the ALRC in delivering speeches to relevant bodies on ALRC related topics, as well as leading public consultation on references. The President has a more prominent role as the public face of the Commission.
In addition to reference-related tasks, full-time Commissioners are members of the Board of Management, which makes administrative and operational decisions on behalf of the Commission. Full-time members take on a number of additional responsibilities, such as oversight of library resources, management of the ALRC journal Reform, and oversight of the ALRC’s student internship program.
Part-time members will generally continue in their other full-time employment (eg, as a judge) after appointment, providing input into ALRC work through:
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allocation to a Division of the ALRC responsible for a particular reference;
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participation in expert committees assigned in relation to each reference;
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comments on drafts and the development of proposals and recommendations;
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attending meetings of the Full Commission twice a year to receive an update on the strategic performance of the institution, and to participate in formal decision making regarding the direction of the institution; and
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other communication with the President and other full-time commissioners from time to time on any issues of interest or concern.
Part-time members are paid an annual income set by the Commonwealth Remuneration Tribunal, as well as an ‘office fee’ for attendance to ALRC business.[2] Part-time members of the federal judiciary are not paid any remuneration by the ALRC in addition to their judicial salaries (but the Commission covers the cost of travel and accommodation for meetings, as required).
The ALRC obtains many benefits from part-time member appointments. Because the work of the ALRC depends upon consultation and input from those working with the law, the appointment of part-time members enables the ALRC to gain the practical expertise and professional connections of people continuing to work within a particular environment. It also enables busy professionals to be a part of, and contribute directly, to the work of the ALRC without having to take leave from their professional commitments. This is particularly beneficial for judges, barristers and solicitors with ongoing commitments to their courts or clients. It is also a useful way to gain input from various geographical locations, as the part-time member does not need to relocate to fulfil his or her commitments to the ALRC. At present, the ALRC’s three part-time members are all Federal Court judges based in cities other than Sydney .
Part-time appointments also provide flexibility by allowing for shorter term or less intense commitments than a full-time appointment allows. Part-time appointments have also been used to keep full-time members involved in a reference following completion of full-time terms, allowing the members to return to their professional commitments but maintaining continuity and corporate memory, and retaining the expertise developed during their term at least until the end of the particular reference. Part-time appointees also can be used in blocks of time—for example, a part-time member might work with the ALRC full-time for some weeks to assist with drafting a particular paper or report, then return to the usual level of part-time commitment, without the need to alter formally the basis of appointment.
Unlike some other law reform commissions in Australia , the ALRC prefers to limit the number of part-time commissioners appointed at any one time. As the part-time members are not physically located within the ALRC offices, there is some effort (and expense) involved in keeping all part-time members appropriately briefed and abreast of developments at the ALRC in order to ensure good quality input.
Qualification of appointments
Section 7(2) of the ALRC Act provides that a person must not be appointed as President or a member unless he or she:
a) is a judge of a Federal Court, or of a Supreme Court of a State or Territory; or
b) is, and has been for at least 5 years, a legal practitioner of the High Court, or of the Supreme Court of a State or Territory; or
c) is a graduate in law of a university, and has experience as a member of the academic staff of a tertiary educational institution; or
d) is, in the Governor-General’s opinion, suitable for appointment because of the person’s special qualifications, training or experience.
Three Presidents of the ALRC have been drawn from the sitting judiciary, and one was a retired judge. However, the most recent two appointments were not judges. Mr Alan Rose AO (President from 1995–99) was, immediately preceding his appointment as President, the Secretary of the Attorney-General’s Department, and had a distinguished career in the Australian Public Service. The current President (since 1999), Professor David Weisbrot, has held various senior academic positions, as well as having been a member of the New South Wales Law Reform Commission (full-time 1990–93; part-time 1994–99) and the Law Reform Commission of Fiji, and a consultant to a number of other law reform agencies and governments.
The ALRC does not consider that its reputation or standing within the legal profession has been diminished by the fact that the President is not a judicial officer. While it could be argued that there was a need for such a requirement during the formative years of the ALRC, in order to assist with the development of appropriate contacts between the institution and the judiciary and the practising profession, there are now other means by which those contacts and the reputation of the ALRC are maintained.
The ALRC has a long-standing tradition of involving the judiciary as part-time members of the Commission. As noted above, this provides a benefit of developing contacts with the judiciary while the member remains on the bench and continues to work with his or her colleagues in the judicial environment. While this might raise concerns about conflict of interest, in practice there have been very few occasions where a judicial part-time member has had to decline or stop work on an ALRC reference due to a real or perceived conflict of interest.
The ALRC’s methods of consultation also provide the judiciary with a number of avenues for contribution to the law reform process. An Advisory Committee (or external reference group) is established for each inquiry, and will usually involve at least several members of the judiciary with expertise or a special interest in the subject matter. Confidential consultations also provide members of the judiciary with the opportunity to contribute in a one-on-one capacity. In the ALRC’s experience most judges feel confident in speaking with the ALRC in this way, knowing that their contribution will be respected and that any personal opinion will remain confidential. The ALRC also notes that its reports continue to assist the judiciary in their interpretation of the law—we know this from informal discussions with the judiciary, but also through direct citation of ALRC reports in the judgments of superior courts.
The ALRC has never experienced the appointment of a full-time judicial member at the time the President is a non-judicial member—and in fact there only has been one full-time judicial member other than as the President (in 1976–77). The primary input of the judiciary as members of the ALRC has been in a part-time capacity.
Section 7(2)(d) of the ALRC Act provides for persons from other disciplines to be appointed to the Commission. This provision has been used sparingly to appoint part-time members from non-legal disciplines (such as sociology, social sciences and history) to assist with development of reforms on suitable references (eg, children and the law, multiculturalism and the law). In recent times, it has been the ALRC’s general preference to appoint non-legal experts to our Advisory Committees, rather than as members. For example, the Advisory Committee for the Inquiry into the Protection of Human Genetic Information included research scientists, clinical geneticists, medical educators, genetic counsellors, health consumers, actuaries, insurers, an Indigenous health consultant, a medical/health journalist, and others.
[1] Section 6(2) of the ALRC Act states that the ‘performance of the Commission’s functions, and the exercise of its powers, are not affected merely because of 1 or more vacancies in its membership’.
[2] At present, part-time members are entitled to a payment of A$12,600 pa plus A$681 per day—calculated to equal the base salary of a full-time member which is A$140,590 pa. If the President is not a judge, he or she is entitled to a base salary of A$246,810 pa. Judicial appointments are entitled to retain the terms and conditions of their judicial positions.