09.10.2025
Address to the 2025 Australasian Law Reform Agencies Conference (ALRAC) by the Hon Michael Kirby AC CMG, 9 October 2025
The Honourable Michael Kirby AC CMG: Inaugural Chairman of the Australian Law Reform Commission (1975-1984); Deputy President Australian Conciliation and Arbitration Commission (1975-83); Judge of the Federal Court of Australia (1983-4); President of the NSW Court of Appeal (1984-96); Justice of the High Court of Australia (1996-2009)
BEGINNINGS
A lot of things were happening in Australia and the world on 1 January 1975.
The Watergate accused were found guilty of cover up of their crimes. The Khmer Rouge commenced their campaign that would lead to their conquest of Kampuchea. And the new constitution of Sweden came into effect.
In Australia, on 10 February 1975, the Federal Attorney-General (Senator the Hon. Lionel Murphy QC) was appointed a Justice of the High Court of Australia. He replaced Sir Douglas Menzies KBE, who had died at the annual Bar Association dinner in Sydney on 29 November 1974. As Senator, Minister, and advocate, Lionel Murphy had been was a bold proponent of law reform. In 1973, he had introduced the Law Reform Commission Bill into the Federal Parliament. He said that the promotion of law reform on a comprehensive and uniform basis could only be undertaken by “an expert body, working full-time on the task and removed from the pressures of day-to-day politics”.
Lionel Murphy also advocated that “many questions of law reform must be dealt with on a national basis, unless circumstances justify different treatment of the several States.” There was a delay in the implementation of the Bill, once enacted. However, the Bill had received the unanimous support of all Parties and both Houses of the Federal Parliament. The Act commenced on 1 January 1975, just short of three quarters of century of the operation of the Federal Constitution.
As and from 4 February 1975 the foundation members of the Commission commenced office: Professor Alex Castles (University of Adelaide); Mr Gareth Evans (University of Melbourne); Associate Professor Gordon Hawkins (University of Sydney); and myself (recently appointed a Deputy President of the Conciliation and Arbitration Commission).
Upon the immediate reference to the Commission of the task of proposing new laws to provide for the handling of complaints against police and the conduct of criminal investigation by police, timed to apply to the new “Australia Police”, (later to be renamed “Australian Federal Police”), I was appointed to serve full-time as first Chairman of the Commission. I was relieved of my duties as a presidential member and Judge in the Arbitration Commission. Gareth Evans was also appointed to serve full-time. He was appointed by me to take charge of the Criminal Investigation report. In June 1975, Mr F.G. Brennan QC of the Queensland Bar was appointed another part-time member to help with the criminal investigation inquiry. At the same time, Mr John Cain, then President of the Law Institute of Victoria and later elected a member of the Victorian Parliament, was also appointed a part-time Commissioner.
This was the core of the foundation membership of the Law Reform Commission. We were a good team; and we were all proud to serve in the new institution.
At the first meeting of the new Commission, held in the Sydney offices discovered for us by Mr Kevin Crotty of the Federal Attorney-General’s Department, we got to work at 99 Elizabeth Street, Sydney. A photograph was taken of us. This is a well known image reproduced in the program of this conference. The five of us look puzzled, but comparatively benign. Of the six of us, four (Brennan, Castles, Cain and Hawkins) have since died. Only Gareth Evans and I have survived long enough to join in the celebrations of this Golden Anniversary.
The creation of the ALRC was one of several important developments in the law in Australia that occurred in 1975. On 11 June 1975, the Racial Discrimination Act came into force. On 8 July 1975 another federal statute abolished appeals from the High Court of Australia to the Judicial Commission of the Privy Council in London (with a few limited exceptions provided). The residue of such appeals, involving appeals directly from the State Supreme Courts, remained until abolished by the Australia Acts 1986. These were not just symbolic changes. They helped shift the Grundnorm of Australian law to this country, asserting and providing for our own legal system, uniquely and locally accountable only to Australians.
On 16 September 1975, Papua New Guinea was granted full independence from Australia under an autochthonous constitution, with the monarch represented at the celebrations by Prince Charles who in 2023 was to become King Charles III. He was in Port Moseby and in the presence of the Governor-General of Australia Sir John Kerr and the Prime Minister of Australia, the E.G. Whitlam QC.
On the morning of 11 November 2025 the Governor-General of Australia (Sir John Kerr) handed Prime Minister Whitlam a letter notifying him of his dismissal. Malcolm Fraser was appointed Prime Minister on condition that he hold an immediate election. Many Australians remember where they were when the news of the dismissal came through. It deeply divided Australia. However, as a result of the election held on 13 December 1975, the Fraser Government was confirmed. The Coalition Parties secured 54% of the popular vote; 91 of the 127 House seats; together with 35 senate seats.
Many participants in law reform were full of gloom in December 1975. But those who were not paying regard to the indications that Attorney-General Ellicott was a strong supporter of institutional law reform. The policy platform of the Fraser Government included an item promising the referral of new laws for privacy protection to the Law Reform Commission. Moreover, Mr Fraser had a personal commitment to administrative law reform, which he would later declare to have been one of his major achievements in office: the new federal administrative law. Mr Ellicott promptly provided the Commission with a series of important and trailblazing projects. These included the reform of the law on privacy; on Aboriginal customary laws; on human tissue transplants law; on federal sentencing law reform; on insolvency and consumer debt; on insurance contracts law reform; and on compulsory acquisition reform.
Mr Ellicott’s list was a thoughtful and challenging program for the Commission. It provided it with the foundation for establishing its credentials. I pay tribute to Whitlam and Murphy. But also to Fraser and Ellicott. The Law Reform Commission cannot, of course, control the governments and personalities of the elected decisionmakers. However, the events of 1975 showed the vital importance of the Commission always preserving political neutrality, courtesy and engagement with whoever holds office (and however they secured it). This had to be done professionally and equally with the opposition and minority and also with independent Members of Parliament. The Commission, from the start, worked in a context dominated by the elected government.
DISTINCTIVE METHODOLOGY
It is tiresome for those who preceded current officeholders to endlessly adulate the way they went about things in earlier times that were necessarily, different and distinctive from what followed.
The methods which the original ALRC developed and pursued at the outset were suitable for the times in which the Commission began. This is not to say they were conventional and unchallenging. Many of the techniques that the ALRC developed at the outset, were quite different from the methods that had been followed by its progenitors in England, Scotland, New Zealand, Canada and several of the Australian states. In part, the differences pioneered by the ALRC grew out of the federal character of the Australian Commonwealth, as required by its Constitution and its history. However, some features of the methodology grew out of the controversial nature of many, even most of, the program items that had been assigned to the Commission by a supposedly conservative government. The following features must be noticed:
- Location: At the outset, a question arose as to where the Commission should be based. This remains an issue to this day. In our first discussions, I suggested it would probably be more effective if the Commission were established in Canberra, where virtually all of the federal agencies and decision-makers were by then based. I made that suggestion, although I myself lived in Sydney where my family and partner were based. The Commission discussed the issue. I raised it with the senior officers of the Attorney-General’s Department including the Secretary (Mr [later Sir] Clarrie Harders); Deputy Secretary Mr Frank Mahony; First Assistant Secretaries Trevor Bennett; Lindsay Curtis; Peter Loof; Ewart Smith. Another reasons for proposing Canberra was the presence there of the Office of Parliamentary Counsel and the precious few retired legislative draftsmen such as JQ Ewans and Noel Sexton. Whilst acknowledging some reasons for establishing the site of the Commission in Canberra. However, Mr Harder made it pretty clear that he was against that idea. He did not accept the proposition that the proximity of the Commission with the Attorney-General’s Department would help to overcome the problem, perceived from the outset, namely the tension between the role of the Minister’s permanent department and advisers and the ALRC. Sir Clarrie Harders explained that “if the Attorney-General wanted to secure advice from an enlarged group of officers based in Canberra, he would not create a Law Reform Commission. He would have enlarged his Department.
The chief value of the Commission, he declared, was providing distinctive advice, with greater access to the national legal in profession and offering expertise beyond his Department. He also said that, “being based in a state capital would ensure easier access to the leaders of the legal profession who could more readily be available to support the Commission in the main cities. This was also the advice of the Foundation Secretary and Director of Research, George Brouwer. Accordingly, in the end, we settled on Sydney. It remained so until Justice Sarah Derrington (based in Brisbane) led the move of the Commission to that city; and later Justice Mordy Bromberg, resident here, who led the Commission to Melbourne. I set aside the choices of different capitals. Obviously, the focus must be on the work and availability of talent and expertise. To shift the venue of the Commission only because of the residence of the President, may need further consideration and cost benefit analysis. - Staff: The venue of the Commission in Sydney soon emerged as an advantage in recruiting highly talented professional staff. Many were lawyers who would not have been available in other cities. George Brouwer moved from the Cabinet Office in Canberra, before subsequently returning to Melbourne. The key employees, under his direction, included: Keith Johnson (Administrative Officer); Gary Mahlberg (Deputy); Rae Hay (my PA who was the fastest typist in Christendom); and Roy Jordan and Virginia Purcell (the initial Librarians). A number of highly talented officers, (Kevin O’Connor; Brian Keon Cohen [KC]; John Karkar [KC]) applied from Melbourne; but most of the staff had earlier been based in Sydney. (David Partlett; Shenagh Barnes and Bill Tearle were recruited from Sydney. Securing highly talented staff depends in part on the attractions of the challenges and the location of the institution.
- Co-operation: Although some earlier efforts had been made to create a national body that included the State and Territory law reform agencies (later extended to observer status for close neighbouring jurisdictions such as Papua New Guinea; New Zealand; Fiji) the engagement with agencies in different States and other countries waxed and waned. As was more common in 1975 than it is today, the chief initial contacts with the English and Scottish Law Commissions and later those of India and Ireland, were beneficial. They led to the exchange of reports; discussion papers, speeches on methodology; and research documents. All of this was before the development of the internet or of the free access service of AustLII (currently celebrating its 30th anniversary). Electronics made it much easier and quicker to secure materials from professional colleagues and elsewhere. Within Australia, paying attention to collegial contacts helped to forestall the risks of political hostility and envy that sometimes arise within federations. Great attention was also paid, institutionally and programmatically, engaging with legal professional bodies; universities and judicial institutions. We were soon punching above our weight.
- Part-time Commissioners and Consultants: Although the budget of the ALRC was greater at the beginning than it later became, the Commission developed economic ways to secure honorary assistance from members of the judiciary, legal institutions; expert academics; civil society; and specialised lawyers. With the approval of the Attorney-General, the Commission could recruit a large number of experts, most of whom were prepared to work without professional fees or at the cost of providing flights and other transport to meetings. Meetings and other consultations became quite intense as the publication of reports was approaching. The ALRC ultimately had little difficulty in recruiting part-time consultants to supplement the full and part-time commissioners. They did not have the responsibility of ultimate decision-making. But in our experience, there was an excitement and engagement in cooperation because of the manifest utility and practicality of our work. Serving judges and engaging with others as part-time commissioners or consultants may be a means of enhancing, in an economical and attractive way, the assembly of top experts in helping with the preparation of reports. Many judges have a professional sense of dedication. Of course, judges and other participants are often under pressure because of their core duties. However, our experience was that this was an economical and practical way to enhance our teams, devoted to preparation of reports. The advent of audio-visual links (by Zoom, Teams and otherwise) has, if anything enhanced the potential availability of expertise, where appropriate, without fee. Many judges, in particular, found this a way to move into improving the legal system, beyond individual case loads.
- Public Hearings: Although enquiries on controversial legal issues have long existed, such as the Wolfenden Royal Commission on Prostitution and Homosexuality, institutional law reform had not, generally, in the past, involved public hearings to supplement the advice of experts. To some extent, this was because of a perceived lack of marginal utility in opening up consultation to interested bodies and the general public. However, from the start, the ALRC approached consultation from a different standpoint. Some issues, of their nature, demanded public consultation (such as Aboriginal customary laws; privacy; and insurance contracts). Other issues would be more appropriately dealt with by inviting consultation and extending invitations specifically to nominated witnesses. Typically the consultation would gather useful facts and opinions, beyond those provide by expert reports. Of course, in some cases the submissions did not demonstrate marginal utility. However, one of the most important outcomes of public hearings was that they enhanced the profile of the work of the ALRC. Inferentially, they increased public awareness of the importance of law reform. They also raised political expectations that results in the form of legal change would follow from the process. Occasionally, politicians and sometimes even Attorneys-General, exhibited hostility to the process of public hearings. They did not like to be pressured by questions emanating in consequence of reports on such testimony. Departmental officials warned them against the publicity that might occasion political pressure or embarrassment. Senator Peter Durack, the Attorney-General after Bob Ellicott, was heard to say, when assigning to the ALRC its reference on Foreign State Immunity: “Now let us see if Kirby can secure publicity about that one.” However, the Commissioner in charge was a brilliant and creative lawyer, James Crawford (later a Judge of the International Court of Justice, before his untimely recent death). He had no difficulty in gathering public and expert opinions that showed the human face of immunity previously locked away in law courts and law reports. In my experience, departmental officials of a later age did not have the broad approach and empathy for law reform that Sir Clarrie Harders effortlessly exhibited. The reduction in the number and sensitivity of references and the diminution of funding for infrastructure and personnel needs to be overcome. Consultation should not be confined only to lawyers or other experts.
- Draft Legislation: The English and Scottish Law Reform Commissions, in the 1970s and 1980s, ordinarily attached to their draft report a model statute. If enacted by Parliament, this would give effect to the policy decisions recommended by the Commission. From the start, we faced two basic problems in copying that policy, compelling though it was. The first was a degree of professional opposition amongst parliamentary counsel concerning their ascendency and defence of their primacy and drafting style. The greatest problem, however, was the difficulty in recruiting a highly talented lawyer who could translate recommendations stated in prose into draft legislation. We had an early breakthrough in the recruitment of John Q Ewens, long-time First Parliamentary Counsel. He came to our rescue in the drafting of the proposed legislation on insurance contracts; privacy protection; and other topics. Noel Sexton and Keith Mason, brought talents derived from training and experience to bear on many of the early reports of the Commission. With disappointment, but understanding, the ALRC’s recent reports have not included draft legislation. I remember the supreme utility of converting vaguely expressed proposals into draft laws, where every sentence could be measured. If a report with recommendations, expressed in general language, has to compete with the urgent demands of a Minister for the use of parliamentary counsel’s time, the Commission will always come off second best. If the Commission could convert its proposals into draft legislation, its output and speed of implementation would be immediately enhanced. In part this is an issue of allocating public resources. But, in part it concerns the technique of law reform itself. It needs priority attention as an integral component of federal law making.
- Parliamentary champions: In the early days of the ALRC we enjoyed the support of local champions on competing sides of politics. The vigilant voice of Alan Missen (Liberal Senator from Victoria) proved a loyal champion in many of the projects in the early days of the Commission. When the Hawke Government was elected, the incoming Attorney-General was Gareth Evans. He was a powerful champion for the implementation of Commission reports. Immediately on his appointment, he telephoned me to ask what reports were ready for implementation, pending the drafting of Bills for the Government’s own proposals. At once, I nominated the report on insurance contracts and privacy protection. Although he later moved from the Attorney-General’s portfolio, he never lost his interest in, and passion for, the ALRC. With politicians in government and in opposition, the ALRC needs to develop appropriate processes of consultation and information. It needs to engage in proper ways with media, including social media. It needs to spread knowledge about its work. When a proposal is drafted, or when a report is tabled, that needs to be considered for implementation. The regular distribution of the Commission’s newsletter “Reform” now looks in retrospect to be somewhat amateuristic, certainly compared to the media of today. However, it is not enough to do good works. It is essential to spread the word to parliamentarians, officials, politicians, the general media and interested citizens and groups. “Reform” used the methodology of the 1980s. That methodology should be adapted and developed for the output of the current age. Spending on such information may be cost effective.
- Decline, Fall and Revival?: It is perhaps natural that, in these remarks, I should lay emphasis upon the earliest days of the ALRC. Although those days were 50 years ago, they remain vivid in memory. They established a methodology that was, measured in turn by reverence to the size and importance of the project and the numbers of proposals implemented, was They led to a series of brilliant reports.
At the time of my departure from the ALRC for the Court of Appeal in 1984, one of the most outstanding projects was nearing its conclusion. In May 1984 an interim report was being produced that would later become the Uniform Evidence Act. As a daily companion to thousands of lawyers, practising throughout Australia, that project was compiled under the supervision of Commissioner Tim Smith. It was one of the biggest and most challenging of the ALRC projects. Tim Smith, with the support of a magnificent team, including Stephen Odgers, brought the project to completion. They provided a consensus report already in force in a majority of the jurisdictions of Australia. After leaving the ALRC, Tim Smith became a greatly respected Judge. His widow, Angela Smith, joins this celebration. Her presence reminds us of the spouses and partners of the Commissioners. They joined the research and administrative staff for regular social events. These included Emad’s Lebanese restaurant beloved of the younger participants. They also included the annual Christmas party at my home at Rose Bay, in Sydney. Observing the social conventions of that time my already long-term partner, Johan van Vloten, was never present. This was the reality of the operation of the law that was brought home to me every day of my service in the ALRC. Legislative reform in New South Wales was finally adopted in 1984. Perhaps it was a well-timed but unconscious tribute to the law reform struggle on so many fronts, to make the Australia a better and a kinder place.
When I departed the ALRC in 1984, Justice Murray Wilcox of the Federal Court of Australia, was a full-time Commissioner engaged on the Lands Acquisition Act reference. He had been appointed to the Federal Court in May 1984. He served additionally as Acting Full-Time Chairman for 9 months. He was succeeded as Full time President in May 1985 by Hon. Xavier Connor QC. He completed his term in December 1987. He complained to Government about the insufficiency of resources. This notwithstanding, 14 reports were finalised and tabled during the years that Justice Wilcox and Xavier Connor were leading the ALRC.
Justice Elizabeth Evatt succeeded Xavier Connor. She was appointed in January 1988, after Xavier Connor’s departure. She had served in England with Sir Leslie Scarman’s Law Commission. She had acquired great judicial skills. She led the ALRC program in five areas of law: family law; business law, access to justice; government law; and law in Australian Capital Territory. Throughout her time, the Commission continued to use the participatory approach. Evidencing a view different from that expressed in the earliest days by Sir Clarrie Harders, the Attorney-General’s Department by this time began flexing its muscles. It secured the appointment of one of its senior officers, Mr John Greenwell as Deputy President. Later it procured the appointment of another senior officer, of the Department, Alan Rose, was appointed President (as the top job had by this time been renamed). He was appointed on 11 May 1994. An officer who had began an association with the Commission as a researcher, Ms Sue Tongue filled in the period between Justice Evatt’s departure and Mr Rose’s appointment.
An explanation for the delay in the completion of some reports can in part be found in the varying special talents of commissioners and their available staff. However, most important was the reduction in numbers of distinguished Australian lawyers who were appointed ALRC commissioners. The fall in the number of reports over time captured the attention of successive governments; and the Parliament. It was a clear outcome of the decline in funding of the ALRC.
I will not review the history of the Commission since my departure and that of my immediate successors. The Business Council of Australia was a regular critic, notwithstanding the efficiency dividend that the Commission earned by several reports relevant to business, such as the reports on lands acquisition law; insurance contracts law; privacy law; and the Uniform Evidence Act. However, more to the point, in my view, was the diminution of attention in the Executive Government and the Parliament for the Commission and its role. Reduction in funding and diminution of appointments has an unpleasant tendency, unless reversed, to be quickly converted into an institutional decline.
A number of inquiries were initiated, over the years, to review the work of the Commission. The largest of these was undertaken in May 1994 by the House of Representatives Standing Committee on Legal and Constitutional Affairs. The report of that Commission was delivered to the Parliament in May 1994. The committee was chaired by Mr Daryl Melham MP, with Mr Alan Cadman MP as Deputy Chairman. It contained several past or future Attorneys-General, including the Hon. Michael Duffy MP; and Mr Daryl Williams AM QC.
The report’s first recommendation was that the Federal Government should recognise that there is a continuing need for a Commission to carry out law reform functions. It recommended a process of consultation by relevant departments with the Commission. It also proposed that, “all government departments should make provision, by appropriate means, for the processing of Commission recommendations”. Put broadly, the Parliamentary Inquiry represented a qualified endorsement of the Commission. But, actions speak louder than words. In an article that I wrote in 2017, published in the Australian Law Journal (Vol 91 p841), I demonstrated by graphs and tables the significant and still then continuing decline in the number of Commissioners appointed; the provision of positive departmental attention to Commission reports; and the devotion of adequate funding to the ALRC. These Indicia are incorporated in the Appendix. Graphs can also speak louder than words.
In my remarks in the article, I cautioned against oversimplistic measurement of the success of reports. For example, Attorney-General Ellicott’s reference on Aboriginal customary laws did not result in comprehensive legislation. But it also was written by one of the Commissions most distinguished jurists, James Crawford AC, later a Judge of the International Court of Justice. There is little doubt that the ALRC report on Aboriginal Customary law (which receives the most visits of any report on the ALRC website) had an impact on the Zeitgeist, or spirit of the times, that followed in the Mabo, Wik and other cases. Law reform sometimes moves in mysterious ways.
To blame the ALRC for the non-implementation of it reports (where that has occurred) probably, at least in part, places blame in the wrong place. The reason for inactivity (or even a refusal to consider law reform reports) will often lie with the legislature itself or with government departments and agencies. Arbitrary, unreasoned power is inconsistent with the rule of law. However, that is the reality that now sometimes applies to the pleas for law reform in Australia. We do not have a national Human Rights Charter. Still less do we have many constitutional principles that could occasionally result in judicial relief. If management experts were to assess the Australian system of government as it presently operates, they would be rightly critical about inadequate attention to areas of law reform especially if there are powerful sectional interests; political apathy; the distraction of more popular issues; or indifference about the problems concerning minorities, our democratic system will not infrequently fail to yield reform outcomes. Governments and Parliaments after all, can usually divert the explanation, and the blame, to another branch of government or the costs, other priorities, or disagreement with the law reformers, viewed as “out of touch” with powerful interests that can catch the ear of government.
Indifference to many aspects of law reform is, sadly, a major impediment to action. The exceptionally high rate of imprisonment of young First Nations’ people is Australia’s prisons (said to be amongst the highest rates of imprisonment in the whole world) was reported upon by the ALRC. Yet effective action has not yet been forthcoming. As I wrote in 2017 “The hostile forces should once again be overcome. Optimism and idealism about law reform should be reinstated. Tinkering, minimisation and inertia are unacceptable. The rule of law needs, and the people of Australia, deserve better.”
I congratulate the President and his very small team, devoted to the reform of federal law in Australia. I congratulate all those, who in the past, have laboured on law reform in a systematic, consultative and multi-disciplinary way. There have been grand projects. They show what can be done. There have been novel methodologies. They show how to enhance the prospects of success. But in the end, if the Commission is to survive a further 50 years, it will need more champions in Parliament, like Bob Ellicott and Gareth Evans. It will need more understanding of the priorities and the pains of inattention to law reform. It will need impatience with bureaucrats who, unlike Sir Clarrie Harders, are devoted to protecting their patch and not to ensuring a better system of government for the people.
Back in 1975, if I had been told that I would be speaking at the 50th anniversary of the ALRC in 2025, I would have predicted the arrival of a golden age, integral to our governance. This is not a golden age. At best it is copper, or even possibly tin. I hope and expect to be around, and still restless in 10 years’ time: for the 60th anniversary. It will be the Diamond Jubilee of the Commission. It sounds like a milestone truly worth waiting for. I hope that the ALRC will be strong, brilliant and enduring as a diamond, appreciated for its long lasting, effective and precious contributions to our Commonwealth.
We who have laboured in institutional law reform should not only blame others for their disappointments. We, who are or have been, members of the Commission, should honour and celebrate our successes. We should share some of the blame for delay and inaction, ourselves. We should face squarely the reality of democratic, social and economic forces that decide the agenda of actual law-making in Australia. We should be realistic in our expectations. And we all should strive to earn the diamonds that will be ours, in the decade ahead.
