A window on law reform for government lawyers

By Professor Rosalind Croucher President, Australian Law Reform Commission*, Law Society of New South Wales, Government Solicitors Conference 2012, 28 August 2012

Thank you very much for inviting me to speak today. As the head of a Government agency it is our respectful commitment to acknowledge the traditional custodians of the land, the Gadigal people of the Eora Nation, and pay my respects to their elders past and present and welcome any Indigenous attendees today.

I thought in my brief presentation today I would cover a handful of topics—

• The need for law reform
• Where law reform happens—and the value of independent Commissions
• What drives law reform
• The role of the Australian Law Reform Commission (ALRC)
• How you go about law reforming
• Constraints for law reform

The need for law reform

Common law systems and federal systems have within their very stability inherent tensions and fault lines. On the one hand, common law is very ‘clunky’. It moves slowly and eschews, at least in a formal sense, any ‘law making’ role, leaving that to the legislature. There is the occasional ‘radical’ or ‘activist’ judge—like Lord Denning, Master of the Rolls in England—but such hardy souls are outliers in what is an essentially conservative system.

Federal systems have, in addition, the fault line of jurisdictional allocation—what goes where—and the tension of state independence sitting under a mantle of federal laws.

So laws get stuck, the wheels of the common law moving slowly and not independently of ‘matters’. Legislatures get stuck—democratic parliaments may steer away from ‘hot potato’ issues; or be tied to party lines on others. And this is where some other mechanism is needed.

Where law reform happens—and the value of independent Commissions

Law reform—to get things unstuck—happens in many places. These include: joint ministerial councils; committees in both Houses of the federal Parliament; departmental and inter-departmental committees; bodies providing specialist advice—like the Administrative Review Council and the Family Law Council; Royal Commissions and other ad hoc bodies appointed to investigate matters of public concern—think, for example of the recent inquiry by former Chief of the Australian Defence Force, Mr Angus Houston, Mr Paris Aristotle, refugee counsellor and adviser, and Mr Michael L’Estrange, a former secretary of the Department of Foreign Affairs and Trade, as an ‘expert panel’ to advise on options in response to the asylum seeker issue; and the inquiry headed by Elizabeth Broderick, Sex Discrimination Commissioner, into the treatment of women in the Australian Defence Force. As well as all such bodies ‘doing law reform’, there are also law reform commissions.

Law reform commissions—really good, institutional ones—are independent bodies and able to reflect fully, consult extensively, analyse deeply, and recommend powerfully.

The creation of such bodies really got a move on in England in the 1830s. The interest in law reform at this time was generated by the writings of Jeremy Bentham, leading for example to the work of the great 19^th century Law Commissions established to enquire into major aspects of the law.^{[1]As Sir William Holdsworth remarked, ‘Bentham was the first English lawyer to think out a comprehensive set of philosophical principles upon which reforms in the law ought to be made’.[2] Lord Chancellor Henry Brougham considered that ‘the age of law reform and the age of Jeremy Bentham are one and the same’.[3] He is, in many senses, the father of modern law reform.}

The English movement rippled in waves across the Commonwealth in the first half of the 20th century, culminating in 1965 in the establishment of the Law Commission for England and Wales.^[4] However a problem with the wave of law reform bodies in Australia, prior to the 1970s, was that they were ‘Committees’—all part-time and comprising judges and other lawyers—and they were not created by legislation.^{[5] Institutional} Commissions, emulating the Law Commission for England and Wales, began with the formal establishment of the New South Wales Law Reform Commission in 1967, although not all were staffed by full-time staff, as was the New South Wales body.^{[6] The work of such bodies was rather technical and focused very much on ‘lawyer’s law’, and not involved directly in what might be described as ‘policy’ issues.[7]}

The establishment of the Australian Law Reform Commission changed all this. Commencing operations on 1 January 1975, with Justice Michael Kirby at the helm, it set upon a path of law reforming that reflected very much Kirby’s intellectual style. Professor Michael Tilbury describes it in this way:

Accepting the need for incisive analyses of black-letter law as a starting point, Kirby found the essence of effective law reform in an understanding of the operation of black letter law in society generally. This understanding was gained and put into sharp focus not only by the experiences, concerns and views of all potential stakeholders (including, where relevant, the general public), but also by the insights of relevant disciplines other than law. Such law reform demanded a methodology that valued full and open consultation, public meetings, the harnessing of publicity, and the publication of draft papers designed to elicit full participation. This approach, ‘congenial to a country of robust and egalitarian individuals’, soon came to represent the standard operating mode of most law reform agencies in Australia.^[8]

What drives law reform?

Law reform is driven by a range of factors. The law reforming initiative of the 19th century was essentially a modernising initiative, a ‘need to adjust the institutions and the law of the state to the new conditions introduced by the industrial and the French revolutions’.^[9]

What prompts the enlisting of law reform commissions to embark upon law reform projects are usually that:

• Old laws need modernising (and the common law is too slow and clunky to fix it)—just think, ‘Bleak House’ and Jarndyce v Jarndyce, as the example of the need for such law reform. The ALRC’s Secrecy, Royal Commissions and Sedition inquiries are examples.^[10]
• Technology has proved just too fast and furious for law—common law and statute law—to cope—imagine all the challenges posed by information and medical technology. The ALRC’s Gene Patenting and Classification inquiries are examples—and even the current Copyright inquiry.^[11]
• Social attitudes have shifted significantly, particularly in the field of relationships—think of the shifts from marriage to de facto marriage to same sex relationships and all the issues that are involved there. The ALRC’s two family violence inquiries may be examples of a wider ‘socially-focused’ inquiry; similarly the current barriers to work inquiry.^[12]
• Federal laws and the laws of the states and territories are a bit of a jumble. A body like a federal body—the ALRC—is well placed to co-ordinate a national approach aimed at achieving harmonisation across the various jurisdictions. The ALRC work in the area of evidence laws is a good example. More recently, in 2010, the ALRC completed a joint inquiry with the New South Wales Law Reform Commission on family violence in the report, Family Violence—A National Legal Response (ALRC Report 114), in which we are asked to consider the interaction in practice of state and territory family violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws; plus the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context. Another big inquiry!

The process of law reforming

Most law reform bodies can’t simply make up their own mind about what to do. Most law reform bodies—the ALRC included—are dependent on ‘references’ from their respective Attorneys-General.^{[13] The ALRC works within the constraints of its Act, the Australian Law Reform Commission Act 1996 (Cth), which reconstituted the ALRC after its initial establishment in 1975. Under s 20 of the 1996 Act, the federal Attorney-General may refer a matter to the Commission, either at the Commission’s suggestion or on his or her own initiative and also direct the order in which the ALRC will consider the various ‘references’ assigned to it.}

The legislation also spells out what the ALRC is required to do and also a list of ‘dos’ and ‘don’ts’ with respect to how it is to conduct itself. But the ‘brief’ is a very wide one, as set out in s 21:

21 The Commission’s functions

1. The Commission has the following functions in relation to matters referred to it by the Attorney‑General:
   1. to review Commonwealth laws relevant to those matters for the purposes of systematically developing and reforming the law, particularly by:
      1. bringing the law into line with current conditions and ensuring that it meets current needs; and
      2. removing defects in the law; and
      3. simplifying the law; and
      4. adopting new or more effective methods for administering the law and dispensing justice; and
      5. providing improved access to justice;
   2. to consider proposals for making or consolidating Commonwealth laws about those matters;
   3. to consider proposals for the repeal of obsolete or unnecessary laws about those matters;
   4. to consider proposals for uniformity between State and Territory laws about those matters;
   5. to consider proposals for complementary Commonwealth, State and Territory laws about those matters.
2. It is a function of the Commission to report to the Attorney‑General on the results of any review or consideration it carries out under subsection (1), and to include in the report any recommendations it wants to make.

There are also specific directions as to how the ALRC must perform its functions:

24 How the Commission is to perform its functions

1. In performing its functions, the Commission must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes:
   1. do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and
   2. are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.
2. The Commission, when formulating recommendations, must have regard to the effect that the recommendations may have on:
   1. the costs of getting access to, and dispensing, justice; and
   2. persons and businesses who would be affected by the recommendations (including the economic effect, for example).

The ALRC has developed a very streamlined process of operations to discharge its statutory functions within the ethos of modern law reform bodies.^{[14]The standard pattern of work is to produce two community consultation documents—an Issues Paper and a Discussion Paper—before proceeding to a final report with recommendations for reform. Each consultation document may be downloaded without charge from the ALRC website.}

A Commissioner leads an inquiry, supported by part-time Commissioners. We also establish an expert Advisory Committee, or ‘reference group’, to assist with the conduct of ALRC inquiries. Sometimes the inquiry lends itself more to advisory panels, rather than one big group, particularly where the inquiry covers a range of rather discrete areas—as was the case in the second of the family violence inquiries: Family Violence and Commonwealth Laws (ALRC Report 117, 2011). Advisory Committees provide advice and assistance to the ALRC, particularly in helping the ALRC to identify the key issues and determine priorities, providing quality assurance in the research, writing and consultation processes, and assisting with the development of proposals and recommendations for reform as the inquiry progresses. The membership of the Advisory Committee for each Inquiry is determined according to the nature of the particular reference. At times we may need more focused assistance. Here the use of ‘expert readers’ can be enormously helpful. For example, in the National Classification Review, leading to the report, Classification—Content Regulation and Convergent Media (ALRC Report 118, 2012), we were assisted greatly by the keen eyes and sharp intellects of Peter Coroneos, former Chief Executive of the Internet Industry Association and Nick Gouliaditis, a Senior Lawyer with the Australian Government Lawyer. In the family violence inquiry we were similarly assisted by Emily Webster, a welfare rights lawyer with the Central Australian Aboriginal Legal Aid Service, who was an expert reader in relation to the income management area of our inquiry.

The ALRC also has a major obligation of consultation—not only in each Terms of Reference but also under the provisions of the Australian Law Reform Commission Act 1996 (Cth), as the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.^{[15] The ALRC has really taken consultation to heart and widespread community consultation is a genuine commitment.[16] For example, during the 2011–12 year, the ALRC undertook 157 consultations across every state and territory, and over 2,400 submissions were received, most of them in the Classification inquiry.}

In addition to receiving written submissions in response to each consultation document, the ALRC also maintains an active program of direct consultation with stakeholders and other interested parties throughout every inquiry. The nature and extent of community consultation is determined by the subject matter of the reference. While some areas are principally of interest to lawyers—like client legal privilege and discovery—other ALRC inquiries involve a significant level of interest and involvement from the general public and the media—like privacy and classification. Further, while the ALRC is based in Sydney, it is a national body and so consultations are usually conducted across Australia during each inquiry. This was especially the case in relation to the privacy inquiry, but also, for example, in the first inquiry into family violence that was conducted with the NSWLRC, where we were exploring the interaction between federal and state and territory laws.

Once the ALRC has completed its work on any inquiry, a report is presented to the Attorney-General, who must then table it in each House of Parliament ‘within 15 sitting days’ of that House after having received it.^{[17] Once tabled in Parliament, the report becomes a public document.}

ALRC reports are not self-executing documents—rather, each Inquiry provides recommendations about the best way to proceed, but implementation is a matter for others.^{[18] But we do keep watch. Each Annual Report now provides a table of ‘Implementation Status’ of all ALRC reports.}

The Privacy report was completed in 2008. It contained 295 recommendations for reform. In October 2009 the Government provided its ‘first stage’ response, addressing 197 of these recommendations, of which, 175 were accepted in whole or in part; another 20 were not accepted; and two were simply noted.

Some of the recommendations that were accepted have now found their way into Bill form. It’s had a couple of goes to get here. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 was introduced on 23 May this year.

The role of the ALRC at this stage includes ensuring that the Government and members of Parliament are aware of the conclusions reached and recommendations made in recent ALRC reports. However, once our recommendations have been given due consideration by Government, the ALRC does not have any ongoing advocacy role in relation to implementation.

To draw our work to the Government’s attention our policy is to make submissions, for example to parliamentary committees considering bills. We did so in relation to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 and were called to give evidence before the House of Representatives Standing Committee on Social Policy and Legal Affairs. This was on Thursday 16 August. You may recall that this was quite a busy week in Parliament, when legislation was being introduced to implement the recommendations of the expert committee chaired by former Chief of the Defence Force, Air Chief Marshal Angus Houston AC AFC (Ret’d). Committee work always has to take second place when the bells ring for Divisions in either house. So it was during our giving of evidence on the Privacy Bill. Eyes divert to the clocks when the bells ring, where there is small box on either side for a light: red for Senate; green for the Reps. At one point when I was giving evidence, with a colleague from the ALRC and a Law Council rep, the green light flashed and proceedings were suspended for a while. When things resumed there was an exchange when I was able to broaden the vocabulary of the Hansard records.

Mr NEUMANN: We apologise for the divisions—

Prof. Croucher: It is very exciting. It is a pity we cannot see on screen what is going on.

Ms ROWLAND: That is not exciting!

Mr NEUMANN: We are just sitting down one side—

Ms ROWLAND: We are sitting down.

Mr NEUMANN: talking while they count. In New Zealand, they give their vote to the chief government whip or the chief opposition whip and then they do not have to turn up. There was an issue, though, when one of the Maori politicians left the Maori Party and became an Independent and forgot to do that. He left over one particular policy issue, then he did not vote on the very bill that had caused him to leave his political party. Obviously it was on the front page of the New Zealand newspapers. It was quite extraordinary.

Prof. Croucher: Yes, I suppose ‘whoops’ is not an appropriate response!

Mr NEUMANN: So we often wonder whether we should just give our vote to the Chief Government Whip. It might be handy.

Prof. Croucher: That is not a matter on which I am commenting!^[19]

Constraints for law reform

In his essays on law reform, Justice Michael Kirby described what he called the ‘seven deadly constraints’ to law reform in Australia. They are a good summary of the things that can restrict or affect the law reform process. The first six were:

• the federal Constitution itself—this gets in the way of securing and maintaining uniform laws;
• ‘modesty of investment’ in institutional law reform, both at state and federal levels;
• the restriction of work to projects assigned by Executive Government;
• the necessities of consultation—which may be limited by ‘available funds, manpower and time’
• time limits for projects—haste, it is said, is the enemy of true law reform’;
• reports are not self-effecting.^[20]

Conclusion

What I love about law reform work by institutional law reform bodies is that it is not just about the future. Law reform publications—especially the final reports—provide an enormous contribution to legal history, through the mapping of law as at a particular moment in history. When I was working on my PhD, I found the reports of the UK Real Property Commissioners of the 1830s just the most wonderful resource.

Each law reform commission report not only reviews the past, it also maps the present. In reviewing the submissions and consultations the reports also provide a snapshot of opinion on the issues being considered—again providing a fabulous contribution to legal history, and increasingly locating that within its particular social context at a given time.

Law reform inquiries also have a far bigger role than the reports they produce. Kirby recognised this very well in saying that

the role of the ALRC in promoting community debate and professional acceptance of the needs of reform may be a more lasting and pervasive contribution to law reform in Australia than any particular project.^[21]

And so law reform work also contributes to the future in a very real way.

Finally, in the context of today’s audience, I should remind you that effective and thoughtful law reform is also dependent on involvement of people like you. Sign up to the ALRC Brief, subscribe to our e-newsletters or twitter feeds for the inquiries you want to follow. Through your department/agency get involved in consultations and writing submissions.

And, help drive law reform!