Words from James Crawford, Commissioner from January 1982 – December 1990, on the occasion of the ALRC's 40th anniversary.

Transcript

I’m James Crawford, now an Australian judge sitting in the Hague. I was a member of the Australian Law Reform Commission for most of the 1980s, first full-time and subsequently part-time. During that time I worked under the presidencies of Michael Kirby, Murray Wilcox and Xavier Connor and, very briefly, Elizabeth Evatt. They all brought their own distinctively individual styles to the presidency.

I worked on three references as Commissioner-in-charge:  Aboriginal Customary Laws, Admiralty, and Foreign State Immunity. Two of them gave rise to legislation which is still in force and which can normally be regarded as having been successful. The most important, however, on Aboriginal Customary Laws, did not. I suppose, in a sense, that was inevitable, given the difficulty of the subject matter and the problems about state and federal competence in relation to Aboriginal affairs.

What were the achievements of the ALRC during that time? The law reform agency when it is initially set up has, you might think, a comparatively easier task. There is an agenda of obvious things to be done which would be done probably in any event eventually, which can be done better and perhaps more speedily under the auspices of a commission such as the ALRC. That happened under what you might call the first generation of law reformers under Michael Kirby’s leadership, including Gareth Evans for a while, David Kelly and others. When I came along, some one or two references had languished. Standing in the Public Interest was one, Aboriginal Customary Law was another. But work was getting under way on new important references, in particular Evidence. So the Commission had already a track record, but it had some difficulties in completing some of its work. I think that during the decade the work was in fact completed and produced reports of the Commission’s traditional high quality. Furthermore, in a number of ways the Commission got involved in questions of implementation or administration, as distinct from general principle. For example, the Customs reference was a useful exercise. It is important that law reform agencies have a broad range and are not too narrowly confined to what may be described as the obvious black letter tasks that are candidates for law reform on any view. I think therefore the decade under the leadership of these successive presidents was important in consolidating the work of the Commission, establishing that the Commission was capable of working on a broad range of subjects, subjects with direct interest to the Commonwealth as a government, for example Customs, subjects of major interest for general law reform, such as Evidence, and also subjects of particular interest for the consumer, such as the Insurance work David Kelly did.

Commissioner James Crawford sitting on the ground under a tree, on consultation with Pintabee men in the Northern Territory.

Aboriginal Customary Laws didn’t really fit into any of these categories, but we did manage to generate through the consultants we retained (they were unpaid consultants, of course) through the community consultations we had and through the publications we produced, a genuine debate on issues which may now seem somewhat dated, but nonetheless was genuine debate that contributed, I hope, to an understanding of the questions.

I have vivid memories of the consultation process. To give you a vignette, Professor Alice Tay was one of the members of the division on Aboriginal Customary Laws. She was a Singapore Chinese Professor of Jurisprudence at Sydney. Soigné was an understatement when it came to Alice. She was extremely well-groomed, and she came with me to conduct the women’s meetings in a remote part of the Northern Territory with a group of Pintubi under the roughest conditions imaginable. We had a rough flight in a small plane during which she was airsick, we had a rough drive 20km on unmade roads to get to the meeting. It was a very hot day. I, for one, had to sit in the sun because all the shade was taken by the consultees, very sensibly, and I developed heat stroke as a result. At the end of the day Alice, having conducted her meeting and gone lizard hunting with the women, was immaculate as ever, a remarkable achievement. I was dishevelled at the beginning of the day and must have looked unspeakable at the end of it.

Law reform is a very important process. It is important that there is access to genuine debate about what law reforms should be made, a debate that is not confined to administrators and politicians, though it is politicians with the advice of administrators who have to make the decisions as to what to recommend to Parliament. The range of options needs to be broad enough to cover things that people have thought about, good ideas that won’t necessarily hit the political agenda. I think the Commission has proved itself over time capable of doing this, and has added to what I would call the lustre of Australian parliamentary record of law reform and law administration. So the work of those early years was of considerable importance, and it continues. I look forward to the next 40 years of the Australian Law Reform Commission, though I won’t see it all myself, just as much as I’ve appreciated the products of the first 40 years.

Photo: Dr James Crawford, with Pintubi men.

 

Published on 13 March 2015. Last modified on 16 February 2016.