An academic in law reform land—and how you, too, can play a part

Professor Rosalind Croucher, President, Australian Law Reform Commission*Monash University, Faculty of Law Research Seminar Series, 4 October 2012.


Thank you very much for inviting me to speak today. Professor Bryan Horrigan is very persuasive! But, as I am an academic through and through, it is always a pleasure to be back on campus, and in a law school, so I didn’t need much persuading! Sadly, though, I can only be here for the day, given the responsibilities I hold in my current role, as President of the Australian Law Reform Commission (ALRC). (My professorial title belongs to Macquarie University, which has kindly allowed me leave while I hold my Government commission).

Looking around the campus, with all its planting of native flora, it must look much as it did centuries ago. And as the head of a government agency, and in our commitment expressed in our Reconciliation Action Plan, I acknowledge the traditional custodians of this land, the Wiradjeri people of the Kulin nation and pay my respect to elders past and present and welcome any Indigenous attendees today.

Bryan asked me to speak to you about law reform. My brief, exactly, was to talk briefly to the law reform agenda, current referrals, upcoming ones, and how I see academics engaging with that agenda. (I can cover most of these, except upcoming referrals, as these are never talked about publicly unless the Minister or Government has said publicly that we are to get a reference of a particular kind). Bryan also allowed me a little licence, namely to weave in some aspects of my fun/fascination of legal research ideas as part of that. So let’s see how I go!

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

  • who and what drive law reform
  • the process of law reforming
  • the process of writing
  • the law reform process and you.

Who and what drive 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.

So laws may need modernising. 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.[1]

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. Law reform may therefore be driven by the fact that federal laws and the laws of the states and territories are a bit of a jumble. A federal body—like 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 were 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 catalyst for law reform is where 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.[2]

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.

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[3] 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.

The creation of institutional law reform commissions really got a move on in England in the 1830s. The law reforming initiative of this period was essentially a modernising one, generated by the writings of Jeremy Bentham. 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’.[4] Lord Chancellor Henry Brougham considered that ‘the age of law reform and the age of Jeremy Bentham are one and the same’.[5] He is, in many senses, the father of modern law reform.[6]

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.[7] But in Australia, prior to the 1970s, they were ‘Committees’—all part-time and comprising judges and other lawyers—and they were not created by legislation.[8] 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.[9] 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.[10]

The establishment of the ALRC 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.[11]

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.[12] 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 a list of ‘dos’ and ‘don’ts’ with respect to how we are to conduct ourselves. But the ‘brief’ is a very wide one.[13] 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:

(a) 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

(b) 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:

(a) the costs of getting access to, and dispensing, justice; and

(b) persons and businesses who would be affected by the recommendations (including the economic effect, for example).

The ALRC has developed a very streamlined process for conducting inquiries, reflective of Kirby’s original methodology.[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 establish an expert Advisory Committee, or ‘reference group’, to assist. Of those attending today, Associate Professor Moira Patterson assisted us with both the Privacy and Secrecy inquiries in this way and Associate Professor David Lindsay is on the Advisory Committee for the current Copyright inquiry. (Many other Monash academics have helped us in a range of capacities, particularly in consultations).

The ALRC has a major obligation of consultation—not only in the Terms of Reference for each inquiry 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 maintains an active program of consultation throughout every inquiry. The nature and extent of it 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.

The process of writing

This is where I wish to draw parallels with academic research and writing and also about how you can add value to law reform in a really meaningful, ‘impactful’ way.

Anyone involved in academic writing, whether in the university context or in government, must learn how to write. This can be quite a painful process—and the first critical message is ‘practise, practise, practise’.

I learned my craft through researching and writing in the broad general area of history and property law. My undergraduate thesis was an historical one; my doctoral research was in legal history, or more specifically testamentary freedom, as a story of conflicted and necessarily balanced ideas—the idea of family and that of property.

‘Writing 101’ in this context is learning about what to cut out—either altogether, or relegated to footnotes. Some of this is about learning when your argument or narrative needs significant pruning or telescoping. Some of it is because of the exigencies of word-lengths or publishers’ demands. But the end result is the same: a shorter, tighter document with better structured arguments. So, the second critical message is ‘edit, edit, edit’. If I were to suggest a rule of thumb here, it would be that it takes, on average, three re-writes to get it right.

You also have to ‘joust with demons’. I remember well a seminal moment in writing my first big thesis—my undergraduate history honours thesis. It was a biography of Sir Nicholas Throckmorton (1515–1571), a Renaissance diplomat. He served under several Tudor monarchs, was tried for treason twice—and got off both times. A remarkable fellow. There was a period in the story where a lot was happening, but it was somewhat peripheral to the narrative I was constructing as my thesis. This was the formula I devised: ‘Meanwhile in Scotland, Mary’s reign proceeded by calamities’, followed by a colon and a list of six events, each with a footnote.

There are several important ingredients in successful writing—and a successful ‘output’ (and if you have difficulty at times remembering the difference between an ‘outcome’ and an ‘output’, just remember that an output is ‘something you can drop on your foot’). First, a conceptual framework. Second, a house style. Third, a rigorous editing process. I guess you would all be nodding your head about each of these.

Conceptual framework

Bryan compiled a wonderfully witty primer on legal research, called ‘Horror’s Hints’, that he wrote while at QUT, published in 2000. Hint #2, ‘Pardon Me, Your Conceptual Framework is Showing (And check in your intellectual baggage at the desk)’ correctly begins by stating:

All pieces of legal writing have an underlying conceptual framework, whether the person realises it or not. … So, whether you articulate it or not, your writing both reflects and is shaped by some underlying theories about the nature of law and legal argument, on one hand, and how your particular area of study works, on the other.[17]

The conceptual framework of academic writing involves understanding, and interrogating, different theoretical perspectives, and anchoring the argument within an appropriately justified critical approach—what Bryan referred to as ‘justification, justification, justification’,[18] and jousting with demons is part of this. (So we now have three basic rules: ‘practise, practise, practise’; ‘edit, edit, edit’ and ‘justify, justify, justify’.)

Law reform writing, too, must ‘own’ a conceptual framework. We generally speak in terms of ‘principles’, but the idea is the same: that conclusions must be developed and tested against a conceptual framework which is explained, anchored in appropriate literature or research, and justified; and which is then used as the basis of evaluation of the ideas that eventually translate their way into recommendations for reform.

For example, the Classification inquiry identified eight guiding principles for reform, directed to providing an effective framework for the classification and regulation of media content in Australia:

  1. Australians should be able to read, hear, see and participate in media of their choice;
  2. communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;
  3. children should be protected from material likely to harm or disturb them;
  4. consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints;
  5. the classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;
  6. the classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;
  7. classification regulation should be kept to the minimum needed to achieve a clear public purpose; and
  8. classification regulation should be focused upon content rather than platform or means of delivery.

And the Age Barriers inquiry is using the following framing principles:

  • participation;
  • independence;
  • self-agency;
  • system stability;
  • system coherence; and
  • fairness.

House style

At the ALRC we do a lot of writing. As I mentioned earlier, each inquiry generally produces two consultation documents and a final report. Each is written by a team. So we have the additional challenge of joint-authored publications and maintaining the quality of the whole product.

Adopting a ‘house style’ is so much more than a Style Guide, although of course it is essential to have one of those—where the delicately nuanced differences between an ‘en-dash’, and ‘em-dash’ and a hyphen are carefully explained, and so on. Being reflective about style has parallels to thinking about conceptual frameworks. To paraphrase Horror’s Hint # 2, not only do all pieces of legal writing have an underlying conceptual framework, whether the person doing the writing realises or acknowledges it or not, all pieces of legal writing reflect a particular style. Media and journalism students learn about such things. Academic lawyers, perhaps not.

We challenge ourselves on style; and others do too. Let me give an example from the Budget hearings of the Senate Legal and Constitutional Affairs Legislation Committee on Wednesday 23 May 2012. Senator Brandis SC, the shadow Attorney-General, challenged me about the Privacy report—the report of a very large inquiry that concluded in 2008 in the large, three-volume report, For Your Information: Australian Privacy Law and Practice (2008). It was a landmark, comprehensive and impressive report. Senator Brandis commented however that, while we do ‘wonderful work of the very highest standard’ we were ‘overcapitalising’ that research.

The privacy report of a few years ago was nearly 2,700 pages long. I am not aware of anyone—academic, government body, think tank; any institution in the world—that has produced a 2,700-page document about privacy. Do you have a view, or would you entertain the view, that perhaps, if the commission, without diminution of the quality of its output, were to produce shorter and less discursive reports, it might actually be able to do more useful work because it could engage in a greater number of inquiries?[19]

We then had a bit of an interchange about the report. I said that if the scope of the inquiry, as defined by the Terms of Reference, were large, the report was also likely to be large. I noted that the earlier Privacy report, overseen by Michael Kirby as Chairman, was also large—2,000 pages.[20] Conversely, if the scope were narrower, then the report itself may be shorter, because to answer the Terms of Reference may not need 3,000 pages.

But I was also able to point to some changes in our style over the past three years. What I was talking about was a reflective analysis of our writing—rather like we all do as teachers, and as academic writers.[21] For example, we have been focusing upon exactly how we want to communicate in the light of our particular audiences—and we have several. There is the Government—policy advisers to politicians; departmental staff; and Ministers and politicians more broadly. There is the legal profession—lawyers and the Courts; community legal centres and those engaging in the arguments of law. There is the general public, who may consult our reports for answers and also seek to engage in the reform process itself by making submissions to our Issues Papers and Discussion Papers. And there is the audience of the future—law reform reports contribute to legal history in providing a distilled snapshot of the law at a particular moment in time.

The style of ALRC reports that were being written at the time I joined the Commission reflected what is described as the ‘narrative’ style. Neil James, the Executive Director of the Plain English Foundation, says of this style that it

uses the information-gathering process itself to structure a document, tracing the writer’s journey from setting the scene, deciding on methods for investigation, conducting research, summarising findings, drawing conclusions and (finally) framing recommendations.[22]

This is, as James says, a ‘logical architecture that mirrors the scientific method’[23] and is therefore often found in technical and scientific writing. It is also found in the academy—and certainly was the prevailing style in law reform writing. In such contexts it was built upon the proposition that the research itself, the evidence base, needed to be fully exposed and interrogated, as much as the conclusions themselves. Hence you might headings like the ones described by James: Background; Methods; Research; Findings; Conclusion; Recommendation. Headings in ALRC reports like ‘Introduction’, ‘Background’, ‘Submissions and consultations’, ‘ALRC views’ all mirrored this scientific style.[24]

But the narrative style can suffer the awful appellation of being ‘boring’. Today’s readers do not want to be bored. Today’s readers need to be able to know the answers in a digestible form that they can remember. A basic rule in writing is that you are communicating. Your audience(s) need to want to listen, or read your message.

Towards a new style

Concerns over not reaching our audience have led us to adopt a different way of writing, but still with an acute consciousness of the need to set out the evidence base upon which our conclusions are justified and also of the role that our reports play as contributions to legal history more broadly. It is an ongoing project.

James commends the idea of ‘telescoping’ as a more modern, user-friendly, way of writing: brining the ideas into view quickly (a double metaphor of seeing and collapsing the structure). It is, after all, all about communication. And law reform bodies have a great responsibility in being able to communicate their messages well. Great store is placed on consultation. But great store needs also to be placed on communication. The former may be done splendidly, but we let ourselves down in our collective responsibility for propelling reform, and its broad community acceptance, if we do the latter badly.

Instead of structuring according to the research process, telescoping sequences your information in descending order of value, with the key material first, followed by the details. Readers can absorb the most important content, then decide how much subsidiary information they need. Each section of the document expands in the way that a telescope does from viewing lens to a magnifying lens.[25]

This is, of course, the newspaper style of writing. There is no room for boredom here.

A standard news report has a lead paragraph that summarises the entire story, followed by the key facts of the story and their significance, and finally the supporting detail, including the background history, the quotes and the less significant facts. Newspapers know that few readers work through story after story from beginning to end. Telescoping lets them draw the information they need with maximum efficiency and interest.[26]

What telescoping allows is reader choice. Readers can get the answer and then decide how much other information they need. The first step in changing style was to adopt the practice of producing a summary document to accompany each major installation of our inquiry progress. My object here was, quite simply, to meet complaints such as those reflected in Senator Brandis’s remarks as to the ‘size’ of the Privacy report. It meant that the message was being missed. That report contained an excellent Executive Summary, providing the telescoped message for the entire, massive, report. But it was included as pages 103–129 of the first volume—if you found it. There was a press release—good communication practice—but there was nothing in between this one-pager and the three volume report.

It was very obvious to me that something else was needed. The message was lost. This was bad communication practice. History may well have judged us well, but if we lost our immediate audience we run the risk of being accused of irrelevance, unresponsiveness, inflexibility, and whatever other accusation that leads to a reduction in funding (‘overcapitalising the research’?).

So, we started to ask questions. Who was the audience? And was the audience the same for each document? Why did intermediate consultation documents need to be so long? Weren’t we, after all, speaking to those ‘in the know’—stakeholders who knew the subject area and wanted to ‘cut to the chase’ and know what ideas we wanted their opinions on. Why did we need to treat them as if we had to work through the subject from its ‘early years’ to the ‘present day’, so to speak. Just get to what we needed them to help us with—and quickly. The pressures on them were great, and growing. Cut them some slack.

So, we have been trying a few things.

Like the summary documents. They have to satisfy one simple practical principle: that they will fit in a briefcase and be capable of being read on a plane between Sydney and Canberra. For the intermediate processes, they can be printed off easily and our stakeholders can get into our way of thinking quickly—and respond without wasting time wading through stuff they know anyway. They can respond online to as many, or as few, of the Questions and Proposals that they wish. For the reports the issue is different. There the audience is multi-layered. For any implementation of our recommendations, policy makers need to feel reassured, and understand, that we have an appropriate evidence base to support all the propositions and ideas that we advance. We also have to meet the test of history.

As a legal historian, at heart, I need to feel confident that each of our reports is contributing to legal history. In my own research I have drawn from the work of others in this domain. The responsibility here is that the presentation of the law as it is, in the particular slice that we are given in our Terms of Reference, is precise and anchored in excellent research. Unlike a research degree, we do not have to present the results of a literature review in quite the same way. We do not have to prove, by footnoting, in a bibliography or otherwise, that we have read everything that has been written on a particular subject (although we usually do as part of thorough research). But we do need to be able to defend that we have provided an accurate summary of things as they are, referring to the research of others—and all their footnotes—without having to traverse every skerrick of the academic literature on our subjects ad nauseam. Our conclusions, and our exposition, have to be defensible before the court of history—and Parliament.

What messages might these observations suggest about writing style for today’s audience?

There is great power in an abstract. It may be required by journals. But it is also a great thing to emulate as practice. Let your readers know, in a nutshell—the 100 words or so commonly allowed for an abstract—what it is that you want to say. We now use ‘Summary’ as our first heading. It does the job of an abstract. It is also an excellent discipline in writing. My colleague at Macquarie University, now Dean of the Law School, Professor Natalie Klein, was exhorted by her doctoral supervisor to write about her thesis as if she were writing three paragraphs to her ‘aunt’—a kind of generic embodiment of ‘everyman’, to make your message clear, and to ensure that you really were able to communicate your argument, your thesis, succinctly.

Second, use headings. I love headings. Not ones that are bland and boring, which convey nothing of their contents, but ones that lead you and entice you into reading. An example: in a section that might typically be headed ‘Background’, in the first chapter of the work we are doing on the Age Barriers inquiry, I opted for this: ‘The ageing population—a public policy challenge’.

Question marks work a treat here. Particularly in sub-headings. For example, in the chapter on superannuation, in the examination of the ‘transition to retirement rules’, we opted for: ‘Transition to Retirement rules: a workforce incentive?’ Questions lead you in. Headings that tell you something of their contents also have this effect. Not every heading is amenable to this style, but use it when you can.

Third, keep your sentences short. We can’t say that we’re doing this now, but we are working towards a tighter style: clear expression; shorter chapters; concrete expression. The result will be shorter reports. (If the sentences aren’t yet all following this rule, they are at least sub-divided reasonably well with appropriate punctuation). The central message is to communicate with your audience—and recognise that your audiences may differ for different writings.

Rigorous editing

At the ALRC we have a good process to achieve the relatively ‘seamless’ look of our co-authored reports. Anyone involved in institutional law reform has an obsession with expression—where some of the worst sins are mis-placed apostrophes (what Justice Roslyn Atkinson describes as a ‘decorative apostrophe’). ‘Pam’ is our god—as in Pam Peters, the wise and noble author of The Cambridge Guide to Australian English Usage. (We have signed copies at the Commission!).

We buddy read. The Commissioner reviews everything—often over and over again. I read everything too. (When I mark up chapters for the legal officers I have chosen to use purple: not as aggressive as red, and not as censorious as blue, but a combination of both.) I have described our collective reading process as one of ‘smoothing’, like rough pebbles thrown into a running river, they get smoothed in the process of the tumbling current.

The process—and you

Academics play an absolutely crucial role in law reform and in several ways. There is, of course, your writing. Academic books and journals are frequently cited throughout ALRC reports. They are a principal means for us quickly to get to grips with the particular landscape under review and its problems. We are, after all, expert generalists. We move from one subject to the next with each inquiry: from family violence, to discovery, to classification, for instance. Academic writing is a principal plank in our initial literature review of a new area.

The second role is through consultation and serving on expert panels. For each inquiry we establish an Advisory Committee, and/or Advisory Panels, to provide expert sounding boards as we develop our ideas through the iteration of questions, proposals, then recommendations (IP, DP, Report).[27] Many Monash colleagues have helped us in this way (including Moira Patterson and David Lindsay, whom I have mentioned already).

In addition we may enlist ‘expert readers’; and it is often academics we turn to to provide that assistance (as is the case in the Age Barriers inquiry).

The third role is by making a submission. Submissions form an important part of the evidence base that informs the development of recommendations. Sadly, academic participation here is not particularly high. In fact it is disappointingly low. Why not get involved in this way? Submissions are cited and quoted throughout ALRC reports. And if your view is found persuasive or helpful in our thinking, then you are having real ‘impact’.

This is an important message and one that may be lost in the current climate about the ‘value’ of particular kinds of legal research. I have often heard of frustration about the way that law research is, or is not, ‘counted’ in the context of annual research reporting and in the Excellence in Research for Australia (ERA) processes. But this is altogether too narrow a focus—and one that neglects the fact that law is a professional discipline in an academic context, or vice versa, an academic discipline in a professional context.

Now, let me take that back to you in your own career development. My advice is to remember that promotion is based not just on research but on a range of things, including your teaching and your community and professional engagement. In a professional discipline these are matters that you should take seriously. Writing refereed journal articles is essential in building your research profile, certainly, and they are also an excellent means of getting free feedback from experts in your areas of interest. But textbooks do have value, maybe not in the ‘research’ that is counted for ERA purposes, but they do advance your claim to excellence in teaching. And the same for writing in professional journals or mass media and in making submissions to public inquiries: they have value in advancing your claim in relation to community and professional engagement. You need to address all the criteria on such occasions and don’t neglect your responsibility in being part of a professional discipline.

So, keep your finger on the pulse of law reform. Sign up to The ALRC Brief, subscribe to our e-newsletters or twitter feeds for the inquiries you want to follow. Get involved in consultations and writing submissions. This also expands your writing practice—and your audience.


What I love about law reform work by institutional law reform bodies is that it is not just about the ‘now’ and the immediate 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.[28]

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.[29]

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. Get involved—and help drive law reform!

* President, Australian Law Reform Commission.

[1] Secrecy Laws and Open Government in Australia (ALRC Report 112, 2009); Making Inquiries: A New Statutory Framework (ALRC Report 111, 2009); Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104, 2006).

[2] Genes and Ingenuity: Gene Patenting and Human Health (ALRC Report 99, 2004); Classification—Content Regulation and Convergent Media (ALRC Report 118, 2012); and see <> for details about the Copyright Inquiry.

[3] I note that Associate Professor Matthew Groves is a member of the ARC. I am an ex officio member.

[4] Holdsworth, History of English Law, vol xiii, 42.

[5] Brougham, Speeches, ii, 287, cited by Holdsworth, ibid, 42.

[6] I have a framed picture of Jeremy in my office. He was a great reform champion. One aspect of this was his views in relation to anatomy. The improvement of medical studies needed bodies—and not just those of executed criminals or those ‘resurrected’ by the notorious Resurrection Men of the early 18th century, of which Charles Dickens wrote. Bentham was an advocate of the donation of bodies. Including his own. He left his body to his friend, Dr Southwood Smith, to be dissected as part of a public anatomy lecture—to which invitations were issued. Afterward, the skeleton and head were preserved, the skeleton was padded and Bentham’s clothes added. He is displayed in a wooden cabinet at University College London as his own ‘Auto-icon’. For the 100th and 150th anniversaries of the college, Jeremy was brought to the meeting of the College Council, where he was listed as ‘present but not voting’. Bentham’s head was mummified as part of the auto-icon, but it was not very well done. The head also became the target of student pranks, being ‘nicked’ from time to time. So a wax head was put in its place, with the original stored in a vault. If you can’t pay him a visit in person, at least have a look at the 360° rotatable auto-icon can be seen at: <>.

[7] The history of the various bodies is outlined in MD Kirby, ‘Reforming the Law’, Law-making in Australia, A E-S Tay and E Kamenka (eds) (1980), 39, 43-44.

[8] M Tilbury, ‘A History of Law Reform in Australia’, in The Promise of Law Reform, B Opeskin and D Weisbrot (eds) (2005), ch 1, 6.

[9] Ibid, 12. See further: JM Bennett, ‘Historical trends in Australian Law Reform’ (1969–70) 9 West Aust L Rev 1.

[10] Tilbury, 13.

[11] Ibid, 14–15.

[12] Holdsworth, History of English Law, vol xiii, 41.

[13] As set out in s 21, including (a) to review Commonwealth laws relevant to those matters for the purposes of systematically developing and reforming the law; (b) to consider proposals for making or consolidating Commonwealth laws about those matters; (c) to consider proposals for the repeal of obsolete or unnecessary laws about those matters; (d) to consider proposals for uniformity between State and Territory laws about those matters; and (e) to consider proposals for complementary Commonwealth, State and Territory laws about those matters.

[14] See a summary at: <>.

[15] Australian Law Reform Commission Act 1996 (Cth) s 38.

[16] B Opeskin, ‘Engaging the Public: Community Participation in the Genetic Information Inquiry’ (2002) 80 Reform 53.

[17] Horror’s Hints, 3.

[18] Horror’s Hints, Hint # 10, 17.

[19] Senate Legal and Constitutional Affairs Legislation Committee, Estimates, Hansard, 23 May 2012, 47.

[20] ALRC Report 22, was tabled in December 1983: <>.

[21] Here I should pay particular tribute to Senior Legal Officer, Jared Boorer, who has been instrumental in leading this process within the ALRC.

[22] N James, Writing at Work: How to write clearly, effectively and professionally (2007), 52.

[23] Ibid.

[24] I should say, however, that not all headings were like this, but there were enough of them to be indicative of a style that needed a re-think. And the conclusion was always saved in reserve till the end.

[25] Ibid, 53.

[26] Ibid.

[27] 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.

[28] The work of the Real Property Commissioners was a monumental contribution to law reform. The Commissioners were appointed in 1829 and produced four reports (1829, 1830, 1832 and 1833). The work of the Commissioners is summarised in AWB Simpson, A History of the Land Law, 2nd ed, Oxford 1986, ch xi, ‘The Nineteenth Century Movement for Reform’.

[29] Ibid.