Advocacy through law reform

Moot Court Bench—Coffee Hour Seminar, Professor Rosalind Croucher AM*, President, Australian Law Reform Commission, Jackson McDonald, Perth, 29 September 2015.

Introduction

Thank you Dr David Cox, both as Chair of the Law Reform Commission of Western Australia and as a partner of Jackson McDonald, for hosting today’s seminar.

Thank you to Lorraine Finlay, Director of Mooting, Murdoch University Law School for inviting me to speak to this select group of students.

I would like to begin my contribution by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past and present, of the Whadjuk Noongar people of South West Australia and I also acknowledge any Indigenous guests in the audience today.

Lorraine suggested that I should speak particularly about advocacy through law reform. Given that your previous speakers have focused on their experiences in law as an advocate, and that my experience as a legal practitioner was only a brief window of my life, it was probably better that I take this as my brief for this afternoon! But I will give a little of my own story and it is one that took me away from practice and into an academic, then law reform, life.

My experience as a legal practitioner

Mine has been somewhat of an accidental career path. But career paths are like that—they only really make sense backwards. I had planned to be a barrister, like my father (later a judge), but by the time I was admitted as a legal practitioner I was six months pregnant. When my daughter was born I was utterly clueless—I didn’t know what to do about a baby, let alone about a career with a baby!

When my daughter was nearly one year old, I applied for a position in teaching at Macquarie University. I got it. Curiously, what secured me the teaching position, at the age of 27, was none of the things that a career path as an academic would have mapped out. Not a higher degree—I hadn’t even thought about that one yet, the PhD would come later, although I did have an Honours degree in History which evidenced research ability; but I did have teaching experience—in music. (I had been a professional musician around the edges of my law studies). I had taught a residential summer school in early music, with a group aged from 17 to 70. It was a great background for teaching distance students, who came in for weekends at a time on campus. It was quite an enlightened approach to appointments by then Profs Jack Goldring and John Peden, both sadly departed from this world.

I took to the teaching like a duck to water. I loved it. I have never lost that love of the dynamic of the classroom—and the exhilaration of speaking with students—hence I was delighted to accept the invitation to speak to you today.

So I accidentally got on another track and it opened up a whole new career path: 25 years of it. Then I had the opportunity to move into new role in early 2007 in the Australian Law Reform Commission. Since the end of 2009 I have been its President. It has been a career with only a brief moment in private practice and all mainly in the academic and government worlds.

I kept in an engaged professional loop through participating in many continuing legal education and professional development seminars for lawyers, but from the perspective of an academic interested in the practical application of law, rather than on the front line as a practitioner.

I am still envious, on one level, when I see all the barristers heading up and down King St in Sydney, towards the courts building in Queens Square, and as I pass in and out of the foyer of the Courts building (heading usually to practise with the Bar Choir). But I am very contented that my life took me on another path and, after my university ‘chapter’, my ‘advocacy’ has been as a law reformer.

So now let me turn to that. I want to describe briefly what my role is at the ARLC and then talk about the impact that law reform contributions have, and from the perspective of an institutional law reform body, once that is now celebrating its 40th anniversary. I will include a final section on writing, as this is another matter in the list of things that Lorraine Finlay tells me you are seeking to learn about in these seminars.

My role as President

As President I am the CEO of the ALRC, overseeing all aspects of its operation. I was appointed President from 14 December 2009. The decision at that time had already been made that the ALRC’s budget was to be significantly reduced in the financial year 2010–2011 and thereafter, a reduction of 20%. The other two full-time Commissioners were not renewed. I was left as the sole full-time Commissioner—and President—of the ALRC. Since then, inquiry-specific Commissioners have been appointed to lead particular inquiries, but I have led the parallel inquiry running throughout, as our normal pattern of work is to have two inquiries on the boil at any one time.

Many aspects of my role are similar to those I performed as Dean of Sydney, then Macquarie, Law Schools: budget matters, people management and development, overseeing policy, being the public face of the agency, giving presentations. In leading inquiries my role is like the leader of a research team, and co-author. However the difference from a contribution by a co-author is that the direction of the analysis and the conceptual framework in which the policy thinking sits, is all driven by the Commissioner in charge. As President I am also closely involved in the ‘second’ reference, assisting the Commissioner leading it, participating in team discussions, review-reading of all work.

Advocacy through law reform

How can a law reform commission assess the impact of our advocacy? ‘Implementation’ data, the take-up of our recommendations for reform, is one way, but it is not all about statistics. A lack of implementation, of itself, does not mean failure. Although if one were looking at numbers, ours are good: as of June 2014, over 88% of ALRC reports had been substantially or partially implemented.[1]

But the impact of our law reform work, its advocacy, must be looked at differently from raw data. Other lenses give a wider and more enduring sense of impact. In a collection of essays published in 1983, the Hon Michael Kirby AC CMG, the foundation Chairman of the ALRC, reflected 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’.[2] And in 2008, twenty-five years later, he expressed this as ‘the flame of ideas’ kept alight by permanent law reform bodies.[3]

The advocacy expressed in terms of impact stretches far beyond the reports in and of themselves.[4] Here one must necessarily have a long view. Law reform publications—especially the final reports—provide an enormous contribution to legal history, through the mapping of laws and policy opinions as at a particular moment in history.

A good example is the inquiry undertaken by the ALRC into the recognition of Aboriginal Customary Laws, completed in 1986—almost 30 years ago.[5] That was a mammoth nine-year inquiry, the ALRC’s 31st report—running to over 1,000 pages. It remains one of the most-visited reports on the ALRC website—and, since 2010 when we started counting these things, visited nearly 200,000 times.[6] It is also the 4th most downloaded of all our reports—over 5,500 times, counting just our website alone.

This kind of interest, and especially in work such as the Customary Laws report, continuing now almost 30 years after the report was completed, signifies a dimension of importance of the ALRC’s work and impact, even where specific recommendations may not yet find their way into specific legislative action. And, significantly, the reflections in that report were ones we returned to in the Native Title inquiry. The report, Connection to Country: Review of the Native Title Act 1993 (Cth), was launched on 29 June this year.

The authoritative character of the analysis in each report means that, as Kirby observed on the 30th anniversary of the ALRC,

courts and academic institutions are increasingly turning to law reform reports as a significant, intensive and accurate source of legal authority, principle and policy. In this way, even if unimplemented by the Parliament, a law reform report can influence the development of the law by the courts, and also by officials and other agencies.[7]

As the Federal Court observed in a submission to an inquiry into the ALRC in 2010:

The Court benefits greatly from the ALRC’s reports, research and analysis of complex areas of law within federal jurisdiction. … More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented. … In this way, the ALRC’s reports have assisted the Court in the tasks of ascertaining the law, interpreting statute and developing the common law.[8]

A recent example from Western Australia brought this home to me. It was the decision of Justice Mitchell in Wilson v Ferguson [2015] WASC 15. The case is a classic example of what has become known—sadly—as ‘revenge porn’, where private and sometimes explicit photographs and videos taken in the course of a romantic relationship are posted publicly on the internet after the relationship has broken down. The aggrieved party brought an action for breach of confidence seeking an injunction and ‘damages’. (Mitchell J took issue with the last aspect of the pleadings—as he should—and read it as a claim for equitable compensation). The plaintiff succeeded: an injunction was granted; equitable compensation of just under $50,000 and costs were awarded. Notably, the compensation was expressed to be ‘for the damage she has sustained in the form of significant embarrassment, anxiety and distress’.

In the ALRC’s report, Serious Invasions of Privacy in the Digital Era (Report 123, June 2014), a chapter was dedicated to the equitable action for breach of confidence and we recommended as follows:

Recommendation 13–1   If a statutory cause of action for serious invasion of privacy is not enacted, appropriate federal, state, and territory legislation should be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress.

Given the nature of the law reform brief, which was, among other things, to design a statutory cause of action for serious invasions of privacy, we went with a legislative recommendation, but recognised the clear trajectory of the common law in that direction.

In reading Mitchell J’s decision I was greatly heartened as the learned judge’s conclusions were entirely consistent with the analysis in the ALRC’s report. Indeed, I wrote to him to this effect, to which he responded: ‘I was aware of the ALRC report and found that it provided invaluable background reading when I was preparing my reasons for decision—a well researched and insightful analysis of the issues.’ It is a good illustration of the impact of our work.

As Kirby remarked, ‘The process of implementation, like the ways of God, can be mysterious and unexpected’.[9]

The law reform process itself also has both an immediate, and a long-lasting impact. The success of the consultation process is that it is personal. Commissioners personally lead the consultations with a wide range of stakeholders in each inquiry. Respectful relationships are established and built through the 12 months or so of an inquiry, and often continuing from inquiry to inquiry.

Building relationships is one way in which the reputation for independence is nurtured and protected. You have to have the confidence of stakeholders that their opinions carry weight, that they will be listened to and evaluated respectfully—with the outcomes not determined in advance. Respectful relationships with government and stakeholders across the spectrum of interests in any inquiry enables the impact of an inquiry to continue over the years.[10]

I like the notion of keeping the flame of ideas alight.  It is a good metaphor for law reform advocacy.

Research and writing

At the ALRC we describe ourselves as ‘generalists’. This serves our independence as we are not as allied to any particular viewpoint or vested interest. But it means that when we are given a particular brief in our Terms of Reference, we have to get across a new area very quickly, at least in a general way. Then we draw in our expertise through the appointment of an Advisory Committee, the appointment of specialist Commissioners, and our consultative process. It is particularly through the latter that we learn the things that are not written in books. It is a process that works and has been proven now for the four decades of the ALRC’s work.

With respect to writing, I want to leave you with a few short observations.

First, write to your audience. Writing is about communication and so the essence of good writing is good communication. The way you write needs to reflect the audience to whom you write.

Second, is the ‘three drafts rule’. That is, as a general rule of thumb, it takes three drafts to get a piece of writing into a half-way decent shape. Build that into your expectations and planning.

Third, is the value of other eyes. We use a buddy-reading system at the ALRC, as well as the reading by Commissioners and experts. Getting other people to read your work helps improve it. I particularly value reading by those unfamiliar with the subject area.  Familiarity may lead someone to fill in the gaps.  The unfamiliar person will identify gaps, weakness in argument, and problems in the structure and sequencing of ideas.

And I will end with a simple message: prolixity is not a virtue.