Published on 23 September 2011.

Speech by the Hon Michael Kirby AC CMG* at the Conference on Law Reform on Hong Kong: Does it Need Reform? The University of Hong Kong, Deparmtent of Law, 17 September 2011

Law reform in Hong Kong: context

I congratulate the University of Hong Kong on its centenary. I pay respects to the people of China on the centenary of the first Chinese Revolution, led by Sun Yat-Sen – himself an alumnus of the preceding medical college. It is a privilege to participate in this conference and to offer thoughts on the arrangements for law reform suitable to Hong Kong in the current age. An historical perspective is called for and is appropriate to the time and occasion. However, each society must create law reform institutions suitable to its needs. The insights of foreigners, however well intentioned, may or may not be relevant to local conditions. This is specially so in Hong Kong where the legal and constitutional position is unique and complex.

Soon after my appointment in 1975, to be the inaugural Chairman of the Australian Law Reform Commission (ALRC), I created a quarterly journal Reform. Virtually single-handed, I wrote every word of that journal until my retirement from the Commission in 1984. For me, it was a kind of diary or blog of my experiences and thoughts during that first decade.

In the first issue, published in January 1976, I recorded the link that the ALRC had already established with colleagues working on law reform in Hong Kong[1]:

“The five reports of the Hong Kong Law Reform Committee were recently sent to the ALRC. No report has been produced by the Committee since 1964. A law reform drafting section has been established in the Attorney-General’s Department. This is now responsible for preparing the law reform programme of Hong Kong. It does not issue publications.”

This somewhat gloomy record was brightened a little in 1980 with the following entry which was published after the 1980 Commonwealth law conference in Lagos, Nigeria, where I presented a paper on ‘Law Reform in the Commonwealth of Nations’[2]:

“Scarcely a quarter goes by now but a new Commonwealth law reform agency is established. For example, it has been announced that a new law reform commission has been established for Hong Kong. The chairman of the commission is the Attorney-General ... Mr. John Griffith QC, who was in Lagos. The first meeting ... occurred in June 1980. The first three topics referred to it for consideration are: commercial arbitration; crime: homosexuality laws and laws of evidence in civil proceedings.

It is envisaged that the commission will work principally through sub-committees to which will be co-opted suitable experts ... Considerations of proposals for reform advanced by the government or private sector will also be part of its function.”

In 1983, the succeeding Commonwealth law reform conference was held in Hong Kong. The issue of Reform recorded that a “Law Reform Forum” was being organised to coincide with that meeting[3]. A report on the meeting followed in the next issue[4]. It contained extracts from a keynote paper delivered by the Chairman of the HKLRC and Chief Justice of Hong Kong, Sir Denys Roberts. With tongue firmly planted in cheek (I hope), he is recorded as saying:

“One of the important objectives of law reform is to provide a comfortable life for substantial numbers of unemployable academics and draftsmen.”

He declared that the law reformer was a “bizarre blend of relentless enthusiasm, burning faith and detachment from reality”. The chief characteristics of a law reformer, as then seen in Hong Kong, were said to be[5]:

“Dedication, which his critics describe as pig-headedness;

Faith – on UNESCO figures about 16% of law reformers have taken their own lives having lost faith;

Insensitivity, of the kind ‘which you can observe at Protestant funerals in Dublin’; and

Patience, of exactly the same kind as enables judges to resist the temptation to deliver judgment within a reasonable time.”

In my note on the aftermath of this speech, I observed that the participants at the Hong Kong forum were seen stumbling out into the sunshine, led by “Lord Hailsham, LC, Lord Scarman and law reformers from all parts of the Commonwealth, reeling with mixed amusement and shock”. A question mark was then hanging over the future of Hong Kong, concerning the survival of the common law system and its institutions. The top priority, as declared by the Chairman of the Hong Kong Bar Association (Mr. Henry Litton QC), was to “[e]nsure ... the survival of [the] system in the event of changes in administration”. The record reveals that the then Commonwealth Secretary-General, Sir Shridath Ramphal, had urged Commonwealth lawyers to abandon smug conceits; to escape the shell; and to aspire to being more than “merely ... passive keepers of the seals”[6].

In present circumstances that inevitably turn our minds to the big picture and the historical perspective, we return to Hong Kong to reflect on what has changed and what is enduring. The University of Hong Kong, in which we gather, was built on the vision of Lord Lugard of Nigerian fame. He had a bold aspiration for it and it took as its motto Sapientia et virtus: wisdom and virtue. We would do well to adopt the same principles in considering the role and future of institutional law reform in Hong Kong.

The HKLRC remains in operation in 2011. The Secretary of Justice still refers matters to it for study, public consultation and the formulation of recommendations in a final report. Additionally, government bureaux develop proposals for reform in-house, with or without public consultation or expert input. Ad hoc bodies, mostly of officials may be created by government as it decides to develop proposals on particular topics. The final decision after every report is delivered is left to government: whether to take any proposed legislative change to the Legislative Council or not to action it. The various mechanisms operate in a way that is rather haphazard and without a clear or logical system. The processes are said to be “ill-defined, not evaluated against performance indicators or other standards”[7]. In this, the Hong Kong situation parallels that in Australia and many other Commonwealth countries. Our present task is to consider whether this somewhat disorganised way of achieving law reform is satisfactory. And, if not, whether something better and more comprehensive should be put in its place and, if so, what?

Considering Hong Kong (and for that matter Australia) as a significant economic unit, it seems certain that an efficiency audit, studying the way in which laws essential to the success of the unit and those living and working in it happen, would conclude that the present methodology is intolerable. It should be replaced by stronger, better resourced and bigger institutions; more effective inbuilt mechanisms of reform and renewal; and regular checks on the performance of those institutions to evaluate their outputs, monitor their outcomes, and adjust them when required.

Many forces are contributing to the increasing needs for law reform today. They include:

  • The many advances in technology (particularly informatics, biology, nano-technology and energy sciences) that render earlier laws obsolete or ineffective; 

  •  The changes in social attitudes and knowledge, including advancing perceptions of universal human rights that occasion different demands and expectations of law in a just society; and 

  •  In the particular case of Hong Kong, there is the need to adjust changes in the law to meet local and global expectations, whilst at the same time adapting to the rapid advances in interacting regulations operating in the Peoples Republic of China. The recent review by Hong Kong Exchanges and Clearing, operator of the securities and derivatives market, of the Code on Corporate Governance Practices 2005 and the Rules Governing the Listing of Securities produced a public consultation paper in December 2010. However, the ‘soft consultation’ in the Territory was obliged, in practice, to ‘dovetail’ with at least the main contours of the laws operating in China. This phenomenon presents, at once, a stimulus to, and check upon, reformist inclinations, simply because of the practicalities presented by the economic integration of this jurisdiction with that of the economic giant that is China[8].

When I first became involved in institutional law reform, in 1975, it was at a time described by Professor Michael Tilbury as a “golden age” of institutional law reform, at least in Australia[9]. It was 20 years after the creation of the Law Commission of India, 10 years after the establishment of the English and Scottish Commissions and a mere two centuries after the moves began in France for the codification and simplification of the civil law[10].

Lord Scarman, first chair of the English Law Commission, became a kind of evangelist for the law reform movement throughout the common law world, supported by those who did not share Lord Denning’s faith or skill to achieve reform from the judicial seat and who, in any case, felt more comfortable with reform effected by a well-advised legislature rather than by unelected judges[11]. The result was the proliferation of many law reform agencies throughout the common law world and, as well, their establishment in several civil law jurisdictions, including Indonesia, Quebec, Rwanda and Thailand.

When I surveyed the legal horizon in 2005 on the thirtieth anniversary of the ALRC, there were at least 60 bodies around the world that answered to the description of a law reform agency. Every Australian jurisdiction was served by such a body, save South Australia. And since then, that State has established a Law Reform Institute, after the model of a similar body in Tasmania created in 2001[12]. South Australia had a part-time law reform committee from 1968 to 1987, when it was abolished. Thereafter, the Attorney-General’s Department took on the general responsibility for legal review. However, the legal profession was critical of the populist tendencies of some of the legal changes in that State (such as legislation found invalid by the High Court of Australia, to ban “bikie” organisations[13]). Hence the Institute.

I suspect that Lord Scarman would view the substantially part-time Institute as a reversion to the law reform committees that preceded the creation of full-time professional law commissions in 1965: under-funded, comprised of serious but over-worked lawyers, performing their law reform tasks at the ‘fag end’ of a busy day[14]. Although some of the work of such bodies makes it into legislation, inevitably the output tends to be small. The pace is cautious. The research facilities (especially for social data) are tiny. The capacity for genuine public consultation is miniscule. And the ability to provide drafts of legislation to give effect to the reform ideas is generally non-existent. This is the danger of the model substantially utilised in Hong Kong and increasingly coming into fashion again in Australia.

So what happened to the dreams of Scarman? When and why did they go out of fashion? Will the fashion return? Should it? These are the questions I want to explore at this well timed conference on law reform.

The utility of institutional law reform

By the fourth quarter of the twentieth century, if not before, it had become apparent in Australia that the assumptions of the political theory on which representative democracy operated were not being borne out in practice.

The fact was, and is, that elected, democratic parliaments are not always attentive to the rights of minorities or to the multiple needs for law reform. In Australia, we do not need to present much proof of this assertion for it is evident in our history and even in contemporary instances. I refer to the denial of the native title rights of indigenous peoples until decisions of the High Court of Australia made towards the end of the century[15]; the White Australia laws that only began to change in 1966[16]; and the many legal disadvantages suffered by women[17], children[18] and homosexuals[19]. Even today in Australia, there continue to be laws disadvantageous to refugees and asylum seekers[20].

It was defects and problems of this kind that led Lord Scarman, in his Hamlyn Lectures, to propose the grafting onto our legal system of effective legal protections for fundamental human rights[21]. These ideas bore fruit in most jurisdictions of the common law, in the form of Charters or Bills of Rights[22]. However, in Australia, this has not happened. The Federal Government rejected a proposal for such a measure in 2010 and postponed its further consideration until 2014. The supposed reason was that it would be sufficient to improve present laws and procedures and to rely on parliamentary vigilance. Unsurprisingly, commentators have likened to putting the occasional poachers in charge of the game park.

Even more fundamental that the problem of protecting rights is the defect of the parliamentary system seen in its neglect of, and inattention to, small, particular, controversial or large, daunting, technical or boring tasks of law reform. These tend, all too often, to be ignored or put off to another day. All too frequently, democratically accountable legislators postpone such tasks and concentrate on popular priorities that will attract media attention and help them to win elections and win government. It was for problems of this kind that Scarman’s second idea of a permanent law reform body was advanced.

Occasionally, of course, court decisions will deliver beneficial reforms by the judicial fiction of ‘re-declaring’ the common law. Thus, in Australia, this happened with the belated recognition of native title[23]; the effective demand for legal representation of indigent accused facing serious criminal charges[24]; the discovery of a constitutional implication prohibiting unreasonable inhibitions on freedom of speech[25]; and the abolition of the immunity for non-feasance of local authorities[26].

However, the path of judicial reform is highly problematic. It depends on many chance factors. These include:

  • The presentation of a suitable case and the imagination of bold advocates; 

  •  The composition and inclinations of the appellate court constituted to hear the case; 

  •  The willingness of the judges to face down complaints and criticisms of ‘judicial activism’[27]; 

  •  The inclination of the judges to overcome suggested problems of funding and costs; and 

  •  The capacity to confine the issues for decision to manageable proportions[28].

Anyone who thinks that judges in appellate courts have a general inclination, willingness and enthusiasm to fix up all the problems of law reform that present have never participated as a judge in such courts. Although there are occasional occasions for law reform in the judicial function, they are overwhelmingly exceeded by the number, size and complexity of the tasks of law reform requiring action. The same can be said of the part-time law reform committees and institutes. They too can occasionally perform useful work. However, generally speaking, they represent cosmetic tokenism. They are not an effective institutional response to the needs of systemic ongoing reform of the law. In such matters, legislators, lawyers, the media and other citizens have to get real. A legal system that is out of date, chronically unjust and unresponsive to social and technological changes constitutes a serious inhibition for the rule of law. It extracts a price in inefficiency, community resentment and individual loss of confidence in the capacity of law making institutions to deliver rational legal outcomes. It is in such an environment that corner-cutting, evasion and even corruption breed.

The common features of the well-established law reform agencies, as envisaged by Scarman and his successors, were well described by the then President of the ALRC, Professor David Weisbrot, explaining what he saw as the “future for institutional law reform” in 2005. His description provides a check list for the essential attributes of a “modern” and even “post-modern” law reform commission.

The “modern” commission, after the Scarman model, was to be permanent[29]; authoritative[30]; full-time[31] and independent[32]. The “post-modern” law reform commission (after the ALRC model) was additionally to be generalist in its legal capacities[33]; inter-disciplinary in its composition and methodology[34]; consultative in its outreach and engagement with society and interested groups[35]; and implementation minded in its determination to be more than an academic think tank and rather to be an effective part of the machinery of legislative government[36].

In fairness to Scarman, in his original vision he too saw how the annexure to law reform reports of draft legislation would constitute an important practical contribution to implementation. More than that, draft legislation allowed (and indeed required) the law reform commission to test broad generalities carefully by identifying the precise changes that would be necessary to give the proposals legal effect. The English Law Commission, and some others, has ordinarily annexed draft bills to their reports. These drafts have helped to secure parliamentary time and enactments. The ALRC invariably followed this course during my period as Chairman. But in recent times, funding levels and the unavailability of drafting personnel have led to abandonment of this facility. A parliamentary enquiry in 1994 recommended the provision of drafting support to the ALRC; but so far, it has not been forthcoming.

This notwithstanding, the ALRC remained, until recently, a relatively large, well-funded, productive, generalist law reform body. It received excellent and highly relevant references from successive federal governments in Australia, of differing political complexions. It enjoyed a high level of success in the implementation of its proposals. More than two thirds of its reform proposals have been implemented, one way or the other[37]. And this statistic was the more admirable because many of the ALRC’s reports were addressed to large, complex and controversial areas of federal law (Complaints against Police; Criminal Investigation; Human Tissue Transplants; Unfair Publication; Sentencing of Federal Offenders; Aboriginal Customary Laws.) In several projects, powerful and opinionated economic interests were involved (Defamation; Privacy and Insurance Contracts). In other cases powerful and conventional or traditional views widely prevailed (Foreign State Immunity; Admiralty; Contempt).

In the time immediately after I departed the ALRC, many highly controversial tasks have been completed by it. One of these, on the law relating to genetics, so impressed the lead scientist on the Human Genome Project (Dr. Francis Collins) that it caused him to declare that it was “truly phenomenal” and that it put Australia at the forefront of global responses to the legal issues raised by genomics[38].

A failure regularly to revise, modernise, re-examine and re-express the laws is not only a default in the adjustment of law to changing circumstances. It involves an acceptance that unjust and inappropriate outcomes do not matter much or must simply be tolerated because of the endemic weakness and inflexibilities of the law making system. These were the attitudes that, in earlier times, tolerated racism, apartheid, slavery and sexual oppression. They are the attitudes today that encourage tolerance of endemic poverty; widespread corruption; and irreversible damage to the biosphere. Sun Yat-Sen did not accept that change in the world was impossible. Nor did later Chinese leaders. Nor should we. Human institutions can be improved. In my own life, I have witnessed many changes in the law and social attitudes. We can give these changes a help along by adopting and sustaining improved machinery of government. Modest investments in institutional law reform represent a step in the right direction. Yet it is a step that continually runs into powerful and opinionated resistance.

A new vision of efficient law making and change

Before I turn to the sources of resistance, two other features of a rational modern law reform agency may be added to those stated by Professor Weisbrot. They are, perhaps, implied in his post-modern features of contemporary law reform. But they deserve to be identified specifically.

The first is the importance of effective use of the social sciences to ensure that law reform proposals are durable, comprehensive and likely to succeed in practice. This is the view expressed by Evert A. Lindquist and John Wanna in an essay called “Delivering Policy Reform: Making it Happen, Making it Stick” published recently in the Australia and New Zealand School of Government (ANZSOG) series by the Australian National University[39]. The authors state that:

“To achieve policy durability in the longer term might require far more research and front-end analysis, and more political and public service executive implementation during the implementation phase. In turn, this implies that we need to scan emerging challenges and ascertain how one aspect of policy reform might fit in with, or be traded off against, other government priorities. But scanning, scenario developing and selection of preferred options can take time and be administratively precarious. Policy analysts have to secure ministerial, executive and stakeholder buy-in so that the fruits of their labours are not wasted. ... Recognising the need to make policy reforms more durable often requires more thorough testing and strategising of proposed policy designs at the outset. This requires more resources, acknowledging that implementation is not simply project management, and recognising that if ex ante engagement of interests is not possible, alternative and credible ways must be found to anticipate the reactions and needs of affected interests and citizens. Many problems with policies are practically discovered in the processes of implementation rather than anticipated and averted beforehand. Where it is not possible to pre-test we might be able to devise better monitoring of the consequences of the policy in operation and make iterative changes.”

It is in the thorough processes of consultation and engagement, typically undertaken by law reform bodies, that durable solutions to problems of law are likely to emerge from social research and dialogue. This is next to impossible (except in the smallest, most technical and usually insignificant projects) conducted by part-time bodies, distracted by the primary duties of their members in their daily work.

In the same volume, Paul ’t Hart drew attention to the special obstacle to lasting reform that exists today – one that was predicted a century ago by the German sociologist, Max Weber. Contemporary society tends to be one in which[40]:

“Tradition, mysticism and even charisma simply do not cut it as foundational principles for state power and legitimacy. Democratic mandates today are more conditional and fleeting than ever before. We live in the age of value-for-money. In a value-for-money environment, citizens take the rule of law and the democratic authenticity of the state largely for granted. ... Instead they judge their rulers on their perceived contribution to their own prosperity and well-being. Public leadership in such a world becomes ... transactional. Citizens pay taxes, vote in legislatures and, mostly, obey the law. They are perfectly willing to do all that, so long as they feel their efforts are met by governments keeping their part of the bargain: providing safety, prosperity, care, sustainability and all the many other things they say they will. In a value-for-money society, we judge government first and foremost by its results.”

If these are truths for a society like Australia, they are probably even more applicable to China and Hong Kong. Bandaids and patchwork, including in the field of law reform, do not deserve the name of “reform”. The do not cut the ice. As Professor ‘t Hart elaborates[41]:

“While much of [our] attention is on how governments have selected, designed and implemented reforms. ... they ... require an investment in public communication: your language, your timing and your performances. A compelling narrative is essential in “selling” the reform to the mainstream of uncommitted ‘wait-and-see’ public servants and stakeholders out there to have a guiding narrative to help them literally ‘make sense’ of what is going on. This is not about spin; it is about building a public case designed to make people face the need for major change.”

The very process of institutional law reform is much more likely to perceive and understand the basic problems and obstacles, and their potential enemies, than amateuristic resort to a part-time committee model, left over from the nineteenth century. Law is a major business in a modern society. It is an essential lubricant for the just and effective administration of conflict and interaction of competing interests in society. And if you do not spend money on doing it well, with appropriate expert and public input, the failures will be measured in communal discontent and anger and resort to shortcuts that may border on illegality. Or to zones of life where the relevance of law is excluded. To some extent, the failure or inability of the courts to deliver their uncorrupted service efficiently and speedily has produced multiple varieties of alternative dispute resolution that effectively bypass the judge and substitute market power and assessments of interests for the traditional will of the courts to do justice according to law in the particular case.

If this is an additional reason for mobilising effective and well resourced law reform bodies in the business of rendering law reform a routine and efficient feature of society, there is another advantage that such bodies bring with their procedures of social science research[42], expert participation and widespread public consultation. I refer to the gathering and monitoring of allies and supporters for the product that emerges at the end of the enquiry in the form of the law reform report with recommendations. True law reforms, of any significance, frequently have significant redistributive effects. They shake up the status quo in a market, an economy or powerful institution or society. They will therefore tend to be opposed by those who benefit from, or are comfortable with, the status quo as well as by people who are deceived into thinking that they are its beneficiaries[43]. This is what happened in many projects of the ALRC which otherwise might have ended up in tears and inaction[44].

Take the major project on reform of the law of insurance contracts. The Australian Federal Parliament, from the foundation of the Commonwealth, had enjoyed large powers to enact laws on the subject. However, those powers were substantially unused. The insurance industry was almost incurably traditional and resistant to change. The precedents were mostly derived from England where the head office of the leading insurers and re-insurers had their headquarters. The landscape of federal, state and imperial law, and a wilderness of common law cases, were chaotic. Yet, by painstaking procedures of consultation and engagement with every section of the industry, the ALRC report on Insurance Contracts[45] was ultimately produced, accepted and implemented - despite rearguard resistance. The engagement of a large team of consultants from all sections of the industry ensured that their voices were listened to and considered – their expertise mobilised for improvement. The claims managers began to see that teaching personnel would be simpler if there were reform. The new provisions shifted some of the old balances between insurer and insured. But they did so justly, and not too far. When the Insurance Contracts Act 1984 (Cth) was enacted by the Australian Parliament, the courts had recourse to the ALRC report and gave the law a beneficial construction. Twenty-five years later, the English and Scottish Law Commissions used the ALRC report to advance many reforming proposals of its own[46]. And so have reformers in New Zealand[47].

It would not have been possible for that task (or many other discharged by the ALRC) to have been performed in a few months; worked up by a part-time committee of busy people; and pushed forward with minimum consultation and trivial public and stakeholder engagement. Those who hold to such views should go back and live in the nineteenth century. They have no place in the current more demanding and transparent age. And basically they have a contempt for the right of citizens, including corporate citizens, to have the most modern, well-informed, efficient system of law that the state can reasonably provide.

Effectiveness and independence in practice

It is against the background of these self-evident truths that we must address the current state of institutional law reform in Australia and Hong Kong. And measure that state against the fashions and aspirations that existed in the 1970s and 1980s and that exist now.

In Australia, despite the comparative success of the ALRC and its utility to successive governments, events have occurred in recent times that have endangered the effectiveness and capacity of that body to discharge its statutory functions as it should. In 2010-11, the Australian Government reduced the ALRC’s budget by $242,000.00 in the financial year; with an indication that in subsequent years, its budget would be reduced by $495,000.00 per year. This led the Australian Senate to refer to the Legal and Constitutional Affairs References Committee an enquiry into the ALRC, the first by the Australian Parliament since May 1994. The report of the enquiry, published in April 2011[48], reveals a rather discouraging scene in terms of the real support being provided by the executive government for the ALRC:

  • The budget cuts have had great impact on staff numbers and morale; 

  •  Effectively, the ALRC was reduced for an extended interval to a single full-time Commissioner, the President, Professor Rosalind Croucher; 

  • The ALRC was effectively obliged to terminate its then current lease of its premises in Sydney and to move to other much smaller premises available to the Attorney-General, abutting the Australian Government Solicitor’s Office and sharing some of its facilities with that body, thus weakening the symbolic appearance of institutional independence from the executive;

  • The ALRC was also to be changed from decision-making as a collegiate body, which decided financial, staffing, priority and other questions by consensus, to a new model of questionable relevance to such a small institution directed: by the President, in consultation with the Attorney-General – a kind of duumvirate;

  • Although ultimately a second full-time Commissioner was proposed, this commissioner was to be assigned and designated to a particular reference project chosen by the government and not, as heretofore, by decision of the President or the ALRC as a whole;

  • It emerged during the investigation that in 2009, the Federal Attorney-General’s Department had, without consultation, commissioned a review (“the Beale Review”) of the ALRC. That review expressed a view, without any input from the ALRC itself, that the body was an unaffordable “Rolls Royce luxury operation” and that should be wound up or rolled back into the Department. While this idea was rejected, and whilst government may of course take advice from whomever it wishes, the process was less than edifying, fair, well-informed or entirely rational;

  • Complaints about delays are endemic in law reform. But for many years, the ALRC has worked to deadlines fixed by the Attorney-General which substantially have been observed;

  • Budget cuts and changes in personnel have led to a dramatic reduction in the engagement of the ALRC with volunteers and in community outreach and educational activities;

  • Two full-time commissioners positions, at least, seem to have been lost;

  • The journal Reform which, in different formats (print and electronic) for 30 years explained the work of the ALRC, has effectively had to be abandoned and certainly in the way in which it was formerly published;

  • The ALRC’s dedicated law reform library, named after me no less, is to retreat into a shadow of its former self, rescued only at the last minute from complete disappearance;

  • All of this has happened in a time when there has been a huge increase in the personnel of the Attorney-General’s Department, effectively a doubling, ostensibly to perform duties responding to anti-terrorism legislation in the wake of 9/11;

  • The institutional memory of the methodologies of law reform have suffered a serious blow from the changes in the composition of the ALRC; the reduction in the numbers of commissioners; the loss of supporting staff; the narrowing of legal expertise; the inability to achieve outreach to stakeholders and social science research; and

  • In particular, the engagement of the ALRC with overseas law reform has, for budgetary reasons, become much narrower and more restricted – a measure of insularity has been imposed by government which, in Australia, is never a good stance.

The majority of the Senate Committee enquiring into the ALRC (comprising members of the Liberal Party of Australian in Opposition and of the Australian Greens) was critical of the steps that had been taken by the Government. They concluded with a number of recommendations designed to restore the position before the budget cuts; to require the provision of a minimum of two standing fixed term non-enquiry specific commissioners; and the assignment of two or more ongoing reform enquiries. The Committee also recommended that the public information and service programme of the ALRC be resumed immediately and that face-to-face consultation should be resumed in the place of the retreat to communication through telecommunications. The Government (Australian Labor Party) members of the Committee, whilst affirming strong support for the ALRC, suggested that the changes introduced were designed to make it “more flexible” in its membership model and more capable of discharging many short-term references.

When the ALRC model is seen in the context of the wider issues of law reform, social change and national institutional arrangements, the current picture is rather discouraging, particularly when the very modest budget of the Commission in the first place is kept in mind. One can only assume that there are interests that are not very favourable to the ALRC model. And this is despite the repeated affirmation of appreciation and the objective evidence of considerable institutional success and the criticisms that those now making decisions voiced in their predecessor’s attempts to inflict the same pain on the Commission before the electoral change.

When I was Chairman of the ALRC, I was strongly advised by the then Secretary of the Attorney-General’s Department (Mr. [later Sir] Clarrie Harders) to guard the independence of the ALRC with all my power. And not to get too close to the Department or its officers. But to safeguard that distance so that the advice given would be special, different and more engaged with stakeholders and external experts not so readily available within or to the public service. This conception appears not now to be in fashion as may be seen in the close physical proximities secured on the change of premises effectively imposed on of the ALRC in Sydney. Further, the model of corporate governance now required is a very different one to the collegiate, professional model that was in force in my time. I hope that Hong Kong law reformers will look at these developments and remember the wise advice of Clarrie Harders. He was a very insightful and experienced public servant. And essentially he was teaching me the lesson of product differentiation in a specialised market.

The loss of a real capacity to engage with the social sciences and to participate in public dialogue is also a serious departure from the innovations which the ALRC itself pioneered in the field of law reform. True, many lay participants cannot give input of detailed legal advice of real utility to a law reform agency. However, quite often lay submissions were a useful check. Occasionally, by individual stories, they gave perspectives and insights that might otherwise have been neglected. In any case, the process of consultation (which would necessarily be physically much simpler in Hong Kong than in Australia) raises expectations of reform. It stimulates participation by powerful interests. It encourages input from specialist consultants, academics, industry and experts. And it brings out the champions who can ultimately help ensure that distracted, hard working ministers and officials give attention to the often unsexy problems of law reform that are otherwise prone to be neglected.

Timeliness can undoubtedly be a problem in institutional law reform. For law reformers, the perfect is often the enemy of the good. I have to concede that in some of the earlier ALRC projects, drift sometimes occurred. It was this that led to the imposition of Attorney-General deadlines. And these were generally observed by the ARLC. By the same token, if the work of institutional law reform is to be deserving of that name, it must strike a compromise between academic perfection and practical utility. It must undertake more than a formalistic, verbal and minimalist project of review. It must engage in a close examination of the way the applicable and proposed law actually works in practice. Only this is likely to reveal the real defects and imperfections of the law.

In that kind of disclosure, the voice of stakeholders and of ordinary citizens can be useful. Listening to those voices is right in principle. Modern governance cannot be a conspiracy of the powerful with the law makers. Law reform is part and parcel of the modern conception of transparent governance: accountable to the governed. Which is what the founders of the Australian Commonwealth aspired to. And what Sun Yat-Sen sought to secure in the place of the Empire.

Conclusion: reviving the cycle

A survey of law reform in the English-speaking world must go back at least to Jeremy Bentham and the moves in Britain, early in the nineteenth century, to follow the French codifiers and to bring more logic, modernity, accessibility and justice to the English law. The intermittent efforts of codification and modernisation in the nineteenth century ultimately gave way, in the twentieth century, to looking to the concept of permanent, well resourced institutions for reform, modernise and simply the law. This idea is undoubtedly a good one. The execution of the idea, it is true, sometimes falls short of the aspiration, as all human institutions do. But, in terms of per capita expenditure in the essential functions of reviewing and updating the legal system, the investment has been paltry and the returns substantial. Yet, even now, it has powerful antagonists and sceptics. Territorialism is never entirely absent from the thinking of many who wield power, including legal power.

Neither the judiciary nor the bureaucracy, unaided, can deliver the range of law reforms that are necessary to effective modern government. In principle, it is desirable that reform of any magnitude should be provided by the legislature. It can do so under the scrutiny of citizens. This is usually preferable to the judiciary, doing its best in a particular case. Law reform bodies can play a useful efficiency role in society. To regard law reform agencies as a “Rolls Royce luxury operation” is, frankly, laughable. There is something out of joint in many contemporaneous governmental responses to the needs of law reform. Responding to those needs is a manifest obligation of modern government. So that is why law reformers and their supporters must find legal champions who match words of praise with effective ongoing institutional support.

The true defence against terrorism, disaffection, communal riots and social disharmony in a modern state includes efficient machinery to review, modernise and simplify the law where it is out of touch with those whom the law serves. This is not a Rolls Royce operation. It is a Volkswagen project. However, it still needs fuel and occasional care and constant maintenance by those with the power to provide this.

We must hope that fashion in law reform, like hair styles, dress lengths and fashions in popular music, operates in cycles. The happening of this conference may be an indication that the cycle will ascend once again. Anyone taking an historical view of the law and its institutional needs to serve a modern community will hope and ensure that it is so.

 


* Honorary Professor, University of Hong Kong; Inaugural Chairman, Australian Law Reform Commission (1975-84); President, New South Wales Court of Appeal (1984-96); Justice of the High Court of Australia (1996-2009); Member, Eminent Persons Group on the Future of the Commonwealth of Nations (2010-11).

[1] “Overseas Developments” [1976] Reform 8 at 10.

[2] “Well Met In Lagos” [1980] Reform 109 at 111.

[3] “Uniform Law – At Last” [1983] Reform 142 at 143.

[4] “Legislative Logorrhea” [1984] Reform 19.

[5]Ibid, 19.

[6]Loc cit.

[7] Hong Kong University, Centre for Comparative and Public Law, advertisement for the conference.

[8] Phil Taylor, “One Country, Two Systems: Hong Kong’s Proposed Changes to Corporate Governance Rules and How They Fit with the Approach in Mainland China”, International Bar Association, Global Insight, London, April 2011, 43.

[9] Michael Tilbury, “A History of Law Reform in Australia”, cited M.D. Kirby, “Are We There Yet?” in B. Opeskin and D. Weisbrot, The Promise of Law Reform (Federation Press, 2005) Chapter 30.

[10]Ibid.

[11] M.D. Kirby, “Law Reform, Human Rights and Modern Governance: Australia’s Debt to Lord Scarman” (2006) 80 ALJ 299.

[12] K. Toole, “Law Reform Institute for South Australia” (2011) 36 Alternative Law Journal 67 at 68.

[13]South Australia v Totani (2011) 85 ALJR 19.

[14] Australian Law Reform Commission, Annual Report 1975 (ALRC 3), 6 [14].

[15]Mabo v Queensland [No.2] (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1.

[16] See e.g. O’Keefe v Calwell (1949) 77 CLR 261.

[17] See e.g. Garcia v National Australia Bank (1998) 194 CLR 395.

[18]Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365.

[19] Until the laws began to change, commencing with South Australia in 1974 and concluding with Tasmania in 1998. See e.g. Croome v Tasmania (1998) 191 CLR 119.

[20] See e.g. Al-Kateb v Godwin (2004) 219 CLR 562; cf Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

[21] L. Scarman, English Law: The New Dimension (Hamlyn Lectures, 26th Series, Stevens & Sons, London, 1974), 16-18.

[22] See e.g. New Zealand Bill of Rights Act 1990 (NZ); Human Rights Act 1998 (UK).

[23]Mabo, above n15.

[24]Dietrich v The Queen (1992) 163 CLR 500.

[25]Lange v Australian Broadcasting Corporation (1997) 214 CLR 1.

[26]Brodie v Singleton Shire Council (2001) 206 CLR 512.

[27] M.D. Kirby, Judicial Activism (Hamlyn Lectures, 55th Series) Sweet & Maxwell Ltd, London, 2004.

[28] See e.g. State Government Insurance Commission v Trigwell (1979) 142 CLR 617, per Mason J.

[29] D. Weisbrot, “The Future of Institutional Law Reform” in B. Opeskin and D. Weisbrot, The Promise of Law Reform (Federation Press, 2005), 16.

[30]Ibid, 17.

[31]Ibid, 18.

[32]Ibid, 19.

[33]Ibid, 23.

[34]Ibid, 24.

[35]Ibid, 25.

[36]Ibid, 29.

[37] Australian Parliament, The Senate, Legal & Constitutional Affairs References Committee, Enquiry into the Australian Law Reform Commission (April 2011). The ALRC, at 3.30, stated that it had an implementation rate of over 90% in respect of its recommendations.

[38] Dr. Collins quoted in Don Chalmers, “Science, Medicine and Law in the Work of the Australian Law Reform Commission” in Opeskin and Weisbrot, The Promise of Law Reform (above).

[39] In E.A. Lindquist, S. Vincent and J. Wanna, Delivering Policy Reform, Anchoring Significant Reforms in Turbulent Times, (ANU E Press, 2011) 1 at 10.

[40] Paul ‘t Hart, “Epilogue: Rules for Reformers” in Lindquist et al, above n39, 201 at 201-2.

[41] ‘t Hart, ibid, 206 (emphasis added).

[42] See e.g. R. Sackville, “The Role of Law Reform Agencies in Australia” (1985) 59 ALJ 151 at 1 57.

[43]Ibid, 204-5.

[44]Ibid, 205.

[45] Australian Law Reform Commission, Insurance Contracts (ALRC 20, 1980).

[46] The story is told in M.D. Kirby, “Australian Insurance Contract Law: Local Report with Global Relevance” (2011) 4 Journal of Business Law 309 at 323ff.

[47]Ibid, 325.

[48] Australian Parliament, Senate, Legal & Constitutional Affairs References Committee (above n37).