Author: Justin Pen, University of Sydney

The Australian Law Reform Commission’s (ALRC) commitment to the modernisation, simplification and improvement of the law has acted as its North Star, guiding the Commission through four decades of regime change.[1] Over this period, 88 per cent of the ALRC’s reports have been implemented, in full or in part.[2] This impressive legacy and influence is due, inter alia, to its uniquely autonomous relationship with government.  This essay explores the role an independent ALRC plays in enlivening democratic deliberation and participation. It argues an independent ALRC, free from political influence or partisan ideology, is primed to (1) collect the frank and forthright views of the community and (2) undertake empirical, evidence-based research – and ultimately drive inclusive and sustainable legal change.

I. ‘Deliberative democracy’ – an opportunity for sustainable law reform

From its outset, the ALRC has reached out to both sides of parliament to “fulfil its mandate and not simply to become another academic or research institution”.[3] Although it reports to the Attorney-General, once an inquiry has been assigned to the ALRC the government has no capacity to direct the Commission on its performance, functions, findings or recommendations.[4] Accordingly, this empowers the ALRC to foster deliberative democracy and improve the ongoing dialogue “between government and its constituents” concerning the economic, social and political challenges of the day.[5] Given the increasingly fragile state of public trust in the government’s ability to consult and engage with the public,[6] there is a clear and pressing need for intermediaries such as the ALRC.

However, the need for an independent ALRC transcends political scepticism. There are real material conditions that demand critical examination. On its face, the ALRC’s recent inquiries appear wholly disparate;[7] but the golden thread that unites them is the search for legal justice amid colossal social, economic and technological change. Such a task would be ill-suited to a strictly judicial or departmental law reform body. The former does not possess the broad experiential base required for serious reform work; the latter lacks the necessary objectivity to provide fair and impartial scholarship. With this in mind, how does the ALRC harness its independence to deliver participatory and impartial outcomes for the nation?

II. Active listening: public consultation and hearing the unheard

An independent ALRC enables community members to “speak frankly (and sometimes confidentially)” on issues that affect them, strengthening the efficacy and probity of the Commission’s findings.[8] Acknowledging its limitations as a “body composed exclusively of lawyers”, the ALRC consulted extensively with Aboriginal communities, individuals and advocacy bodies and anthropologists, sociologists and historians during its 1977 inquiry into Aboriginal customary law.[9] This action culminated in an historic report arising from nine years of grassroots consultations,[10] and has been credited with enlivening public and judicial opinion,[11] prior to the landmark judgment in Mabo v Queensland [No 2].[12]

Importantly, this interdisciplinary approach is not confined to the annals of history. A 2015 study found that public submissions comprised nearly half of all citations, used in the ALRC’s final reports from 1992 to 2002.[13] During its recent inquiry into federal disability laws the ALRC received over 150 submissions from health experts, welfare groups and representative bodies,[14] addressing concerns over the Commission’s overreliance on lawyers.[15] As part of its 2011 report on family violence, the ALRC developed specialist consultation strategies to better engage with people from marginalised backgrounds, empowering them to provide candid and sensitive information.[16] The ALRC’s independence ensures that frank and forthright perspectives can be gathered, regardless of the impact of those currently in office.

The sum of these case studies reflect the assertion that “law reform commissions are often better equipped… to undertake the networking and community capacity building” and “create a climate of constructive change”.[17] Ultimately, wide consultation provides individuals with greater ownership over changes to the law that affects them and accelerates parliamentary action and attitudinal change.[18]

III. Cutting through the fog: evidence, experts and empirical research

An independent ALRC is also able to “ask harder, deeper and more complex questions” due to its binary relationship with power – its simultaneous access to, and distance from, government.[19] In practice, this has been meted out by the ALRC’s longstanding commitment to the ‘empirical’ approach to law reform (spearheaded by the inclusion of criminologist Dr Gordon Hawkins in the Commission’s inaugural membership), which operates in tandem to its broader consultative functions.[20] The viability of this approach is rooted in the ALRC’s distance from government and its ability to “resist political partisanship and private interests”.[21] Its independence has enabled the ALRC to forge a plurality of relationships with “diverse and opposing stakeholders”[22] and collaborate with “sitting and former judges, and leading practitioners and scholars.”[23] This unparalleled access would not be possible if the Commission was under the control of the executive.[24]

The ALRC’s evidence-driven methodology was evinced in its 1975 investigation into police complaints and investigation, wherein Commissioners accompanied police and travelled to remote areas to observe law enforcement first-hand.[25] Dutiful frontline research was also fundamental to the ALRC’s landmark inquiry into the federal civil justice system,[26] which boasted “the largest and most comprehensive empirical study of case files and case cost information”.[27] The politicised character of these inquiries – their subjects being the police and the civil court system – further highlights the need for an independent body, capable of acting without fear or favour. Further, the Commission’s empirical approach salves the English philosophical tradition’s “attraction to verbalism and linguistic analysis”[28] and allows the ALRC to generate sustainable, practicable solutions to systemic legal issues.[29]

Parting words: democratic, empirical and consultative

In a 2006 speech at the Flinders University School of Law, former President of the ALRC Professor David Weisbrot AM remarked that independent law reform commissions were “more consonant with democratic theory and the separation of powers” and better-suited to “empirical study [and] public consultation”.[30] The ALRC’s last 40 years of law reform verifies this claim. Through its independence, the Commission has improved democratic discourse, listened to (and amplified) marginalised voices and undertaken impartial, empirical research – the result of which has been colossal legal change.

Bibliography

Articles / Books / Reports

Andrew Markus, ‘Trust in the Australian Political System’ (Speech delivered at the Senate Occasional Lecture Series at Parliament House, Canberra, 11 April 2014) <http://www.aph.gov.au/senate/~/~/link.aspx?_id=1713CA0133C845D8B54945046F5C7B8B&_z=z >.

Anne Findlay, ‘The role of the Australian Law Reform Commission’ (2004) 16(2) Legaldate 1-4.

Anne Findlay, ‘ALRAC 2002 – Expansion or contraction’ (2002) 81 Australian Law Reform Journal 60.

Australian Law Reform Commission, Copyright and the Digital Economy, Report No 122 (2014).

Australian Law Reform Commission, Criminal investigation, Report No 2 (1975).

Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014).

Australian Law Reform Commission, Family Violence and Commonwealth Laws – Improving Legal Frameworks, Report No 117 (2012).

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2002).

Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper 82 (2014).

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No 123 (2014).

Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Issues Paper 46 (2014).

Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986).

Brian Opeskin, ‘Engaging the public – community participation in the genetic information inquiry’ (2002) 80 Reform 54.

David Weisbrot, ‘The historical necessity of law reform’ (2006) 9 Flinders Journal of Law Reform 2.

Justice Michael Kirby, ‘Are We There Yet?’, in Opeskin and Weisbrot (eds), The Promise of Law Reform (Federation Press, 2005) 433

Justice Michael Kirby, ‘Ten Requirements for Successful Law Reform’ (2009) 11 Flinders Journal of Law Reform 77.

Justice Michael Kirby, ‘The ALRC – A Winning Formula’ (2003) 82 Reform 58.

Kieran Tranter, ‘Citation practices of the Australian Law Reform Commission in final reports 1992–2012’ 38(1) University of New South Wales Law Journal 350.

Peter North, ‘Is law reform too important to be left to lawyers?’ (1985) 5 Legal Studies 119.

Professor Marcia Neave, ‘Law Reform in the 21st Century – Some Challenges for the Future’ (11 October 2014) < http://www.lawreform.vic.gov.au/publications-and-media/speeches/law-reform-21st-century-%E2%80%93-some-challenges-future >.

Professor Marcia Neave, ‘Making l law reform work: the promise and limits of law reform’ (2007) 17 James Cook Law Review 12.

Cases

Mabo v Queensland [No 2] (1992) 175 CLR 1.

Legislation

Australian Law Reform Commission Act 1996 (Cth).

Law Reform Commission Act 1973 (Cth).

 

[1] Law Reform Commission Act 1973 (Cth) s 6; Australian Law Reform Commission Act 1996 (Cth) s 21.

[2] Australian Law Reform Commission, Annual Report 2013-2014, Report No 125 (2014), 27.

[3] Justice Michael Kirby, ‘The ALRC – A Winning Formula’ (2003) 82 Reform 58.

[4] Anne Findlay, ‘The role of the Australian Law Reform Commission’ (2004) 16(2) Legaldate 1.

[5] Professor Marcia Neave, ‘Law Reform in the 21st Century – Some Challenges for the Future’ (11 October 2014) < http://www.lawreform.vic.gov.au/publications-and-media/speeches/law-reform-21st-century-%E2%80%93-some-challenges-future >.

[6] Andrew Markus, ‘Trust in the Australian Political System’ (Speech delivered at the Senate Occasional Lecture Series at Parliament House, Canberra, 11 April 2014) <http://www.aph.gov.au/senate/~/~/link.aspx?_id=1713CA0133C845D8B54945046F5C7B8B&_z=z >.

[7] For example, see: Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Issues Paper 46 (2014); Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper 82 (2014); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014); Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No 123 (2014); Australian Law Reform Commission, Copyright and the Digital Economy, Report No 122 (2014).

[8] Brian Opeskin, ‘Engaging the public – community participation in the genetic information inquiry’ (2002) 80 Reform 54.

[9] Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Chapter 2.

[10] Australian Law Reform Commission, above n 9.

[11] Justice Michael Kirby, ‘Are We There Yet?’, in Opeskin and Weisbrot (eds), The Promise of Law Reform (Federation Press, 2005) 433, 439-440.

[12] Mabo v Queensland [No 2] (1992) 175 CLR 1.

[13] Kieran Tranter, ‘Citation practices of the Australian Law Reform Commission in final reports 1992–2012’ 38(1) University of New South Wales Law Journal 350.

[14] Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 31.

[15] Peter North, ‘Is law reform too important to be left to lawyers?’ (1985) 5 Legal Studies 119.

[16] Australian Law Reform Commission, Family Violence and Commonwealth Laws – Improving Legal Frameworks, Report No 117 (2012) 56

[17] Professor Marcia Neave, above n 5.

[18] Justice Michael Kirby, above n 3, 60. 

[19] Anne Findlay, above n 4.

[20] Kieran Tranter, above n 16, 324.

[21] Professor Marcia Neave, ‘Making l law reform work: the promise and limits of law reform’ (2007) 17 James Cook Law Review 12.

[22] Australian Law Reform Commission, above n 2, 5.

[23] Anne Findlay, ‘ALRAC 2002 – Expansion or contraction’ (2002) 81 Australian Law Reform Journal 60.

[24] Ibid.

[25] Australian Law Reform Commission, Criminal investigation, Report No 2 (1975).

[26] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2002).

[27] Ibid 7.

[28] Justice Michael Kirby, ‘Ten Requirements for Successful Law Reform’ (2009) 11 Flinders Journal of Law Reform 77, 84.

[29] Ibid 95.

[30] David Weisbrot, ‘The historical necessity of law reform’ (2006) 9 Flinders Journal of Law Reform 2, 143.

Published on 6 July 2015. Last modified on 1 October 2015.