28.01.2015
Australia India Youth Dialogue, 28 January 2015, by Professor Rosalind Croucher, President, Australian Law Reform Commission*
Thank you for including me in today’s discussion on the theme of ‘Governance and Public Policy’. As the head of an independent Australian federal Government agency, this is a topic that is dear to my heart. Independence will be the central theme in my presentation today.
I am grateful to Shaun Starr, Chair of the AIYD, for the invitation. I remember Shaun well as a student of that great institution, Macquarie Law School. I am honoured to share the panel with Ms Pinky Annand, Additional Solicitor-General to India’s Supreme Court.
We were given a suggested series of dotpoints that we might like to address, including ‘the role of think-tanks and other non-government bodies in public policy development’. I would like to seize upon this in terms of the importance of a body like the Australian Law Reform Commission (ALRC)—and other institutional law reform bodies—in public policy development. We are not, strictly, ‘non-government’, but our independence places us in a position that is, I think, the target of this theme. I will include consideration of ‘the importance of engaging citizens in public policy development’, ‘innovations in public policy development’ and ‘challenges to good governance and effective public policy development’. The focus is Australian, in the sense that I will speak of my experience in law reform in Australia, but it will also draw in examples from other similar bodies across the common law world.
About the ALRC
The ALRC was established by statute in 1975.[1] I was appointed President for a term of five years from 14 December 2009 and I have just had my commission renewed til mid-December 2015. Between 1975 and now the ALRC has shrunk in size, reflecting in the main budget reductions, but also changes in the way we do things (which, themselves, are partly in response to budget cuts). Such changes do not necessarily mean that there is a lessening in standing or influence and impact, but it is something that all managers have to manage.
Just picking a date for comparison, I pulled out the Annual Report for 1985, 30 years ago. At that time the ALRC had two offices, a head office in Sydney and a branch office in Canberra. The Sydney office spanned over two floors of a building. It was headed by the President (then the Hon Xavier Connor QC, a retired justice of the Federal Court of Australia), with 28 staff and three other full-time Commissioners. The Canberra office was headed by a Commissioner with two legal officers.
In all, there were five Commissioners, including the President, 12 part-time Commissioners. Work was spread over 14 inquiries, most of which did not have specific reporting dates and some of which were in ‘abeyance’.[2] Staffing levels (apart from the Commissioners) amounted to 32 full-time and two part-time employees.
Jumping ahead another 10 years, to the Annual Report of 1995, there were four full-time Commissioners and six part-time. (Interestingly, the report drew attention to the fact that three of the Commissioners were women. Since 2012 all the full-time Commissioners of the ALRC have been women.) There were still two offices, one in Sydney and one in Canberra, and the average staffing level was 41.8.
In 2005, at the 30-year mark, there were three full-time Commissioners (including the President) and three part-time Commissioners. The average staffing level was 18.05.
Today the Commission comprises the President, one other full-time Commissioner (Professor Lee Godden), two part-time Commissioners (both Federal Court justices), and a staff of 11.1 full-time equivalents. Our normal workload expectation today is to conduct two inquiries at the time, each being led by a Commissioner, one of whom is the President. It is desirable to have a team of four legal officers on each inquiry, as a norm—plus the essential support staff. All of our inquiries have end-dates, so no work is left hanging around. They are completed in the agreed period of 12–18 months, depending upon their complexity and coverage.
So we are ‘lean and mean’ to coin a phrase, although I prefer to describe the legal teams as like elite athletes, expert and adept at the processes of law reform and able to deploy into whatever subject matter the Attorney-General of the day sends our way. If more work is required—more than two inquiries at any one time for example—then a serious conversation needs to be had about resourcing us to be able to undertake additional work. Such a conversation occurred when the previous Attorney wanted us to undertake a range of inquiries, and not in sequence extending over a number of years. Hence we were funded with an additional Commissioner and legal officers to undertake this extra work.
If I were putting my most ‘half empty’ face on, I would say that surely such a savage reduction in staffing (and budget) is an enormous ‘challenge to good governance and effective public policy development’.
But, I am not a half empty person and what I would like to talk about is how our mode of working has changed over time. We have streamlined a number of things that we do. Technology has helped considerably. And a good team works wonders.
Engaging citizens in public policy development
Extensive public involvement in law reform is crucial to the integrity of the process—t is the sine qua non accepted among institutional law reform bodies internationally. In an essay in the collection to mark the 30th anniversary of the ALRC in 2005, the Hon Justice Roslyn Atkinson AO of the Supreme Court of Queensland and Chair of the Queensland Law Reform Commission, said that
The purpose of community participation in law reform is two-fold: to gain responses and feedback; and to promote a sense of public ‘ownership’ over the process of law reform. This in turn ensures that a law reform commission’s work is intellectually rigorous and practical, having considered evidence of how the area of law in question operates in practice; gathered information from a variety of sources and perspectives; and tested proposals with interest groups and affected parties. All these factors produce a document that political decision-makers can accept as community tested, before consideration and hopefully implementation of the reform proposals.[3]
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.[4]
The ALRC has developed a very streamlined process of operations to discharge its statutory functions embodying the commitment to consultation at its heart.[5] 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.
The ALRC has really taken consultation to heart and widespread community consultation is a genuine commitment.[6] 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 the 2013–2014 year we undertook 312 consultations and received 976 submissions.
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.
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, classification and copyright. 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 commitment to consultation and outreach remain of high order for the ALRC. But what of the impact of the budget cuts? We embarked upon a great deal of soul-searching. Reflectiveness about how and what we did was both a practical necessity in terms of budget management, but it was also a natural accompaniment of my taking on the role as CEO in late 2009.
Clearly—and ultimately—the Realpolitik is that law reform bodies have to work within the resources they are given. Responding to reduction in funding, we maintained the prioritisation of consultation but refreshed the way we communicated our work in a range of respects. New forms of social media have been our ally. And reflective practice has transformed our publication strategies.
To conclude this section I will add a further observation, based on my experience of now eight years with the ALRC. It is that the process of consultation, of engaging the public, stakeholders, and government departments and agencies, has an effect much like the dropping of a stone in a pond. There are ripples. There are ripples of conversation that affects people’s thinking. There are little triggers that fire the imagination of staff who, within a few years, may be leading the policy direction in the areas under review. In short, law reforming rubs off.
Pebbles in a pond of imagination.
Innovations in public policy development
Budget cuts can be lamented, but they can also provide an opportunity for change. I have already noted some of the changes we made. When I was given an opportunity to say something about it, during a parliamentary inquiry about our funding and resources, I did offer somewhat of the lament side of things.
In my opening statement in giving evidence to the Committee on 11 February 2011, I said:
with respect to the question of whether our current appropriation is adequate, I have to say ‘no’. I kept thinking of an analogy to describe the impact of the budget cuts—described by some as ‘savings’—and the image that kept returning was that of the Black Knight in the film, Monty Python and the Holy Grail. After he lost one arm defending his turf he said, ‘Tis but a scratch!’; after the other one was lopped off, ‘Just a flesh wound!’. After both his legs were also chopped off he still managed to say, defiantly, ‘The Black Knight Always triumphs!’. Ridiculous, but fitting. The reduction in budget to the ALRC makes us feel like that poor knight.
The ALRC, like the knight, cannot ‘triumph’—run on reputation—forever.[7]
The year 2010 was a very confronting year. We had to find savings.[8] We desperately wanted to hang onto staff—the key to maintaining the intellectual capital in law reform based on the training and experience of ALRC staff. The changes in financial structure placed significant restrictions on our ability to manage finances from year to year and meant that there was no funding to support the appointment of full-time Commissioners in addition to myself.
How did we survive? For a start, we had to move offices, but we also needed to maintain a location in the heart of the legal profession, which enabled significant pro bono engagement in our work. We needed to be in Sydney or Melbourne, and, in a physical expression of independence, not in Canberra—the seat of the federal government. Given that the ALRC had always been located in Sydney, moving to another state was not an option. The Australian Government Solicitor had undergone some contraction in staff, but had leasing commitments in Sydney—in the heart of the legal professional precinct and across the road from our previous premises. We were able to halve our floor space—and our rent—and make arrangements to share certain facilities that were of great benefit to the ALRC: reception, meeting rooms and library.
We also had to cut back some of the stuff we had. Here I come to the hard copy library, much of which we had to relinquish. While I have to confess I love my hard copy library, the gritty reality is that hard copy libraries occupy a large amount of space, and are therefore costly in this aspect alone, let alone the other costs of maintaining collections. When Kirby chaired the first of the ALRC’s big inquiries into privacy, which produced Report 22, he recognised that the implications of information technology advances were transforming the information landscape—and at an exponential rate. This has had its impact on the availability of library resources as well, opening up vast libraries through online access, far beyond the capacity to maintain in hard copy form. Moreover the ALRC’s library needs are also incredibly fluid. The library we needed for, say, our two family violence inquiries, was quite different from that required for royal commissions, classification and copyright. Gone are the days—long gone indeed—when we could retain an adequate library for such wide-ranging areas. What we need is excellent online access and capacity for interlibrary loans.
But we had to cut back, or refine, some of the things we did. Going back to that 1985 Annual Report again, I notice that at the time the ALRC produced a quarterly bulletin Reform and a Law Reform Digest, both of which are described as ‘clearing house’ functions.[9] In 1985 the circulation of Reform exceeded 2000 copies. Production continued until 2009, by which time it had ceased to be quarterly and was only produced once or twice a year. And it had become something entirely different from its original conception.
Given that our core program is to conduct inquiries, we could no longer sustain a team of staff dedicated to publishing the journal. Instead, we refocused Reform into a publication that is true to its original conception as the first Chairman, the Hon Michael Kirby AC CMG saw it: to explain the work of the ALRC.[10] As an e-publication its outreach is also much more effective. For example, at the last issue of Reform, there were 118 subscribers. At the date of writing, we have 1,024 subscribers to the ALRC Brief. We also produce specific e-newsletters for each inquiry, as part of our stakeholder engagement strategy.
When Kirby was Chairman, he used cassette tapes to convey messages. We now use their contemporary equivalent, ‘podcasts’.[11] The object is the same: effective communication and audience engagement. In this we also include conferences and symposia and writing activities of various kinds–journals, newsletters, and social media. Our Annual Reports track contributions of these kinds. While principally resting on the experience and willingness of Commissioners, it is also a deliberate opportunity to ‘talent shop’ legal officers of the ALRC as part of their own career development.
Reflectiveness also led us to review our writing: to focus upon 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 there is 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.[12]
But the narrative style can be somewhat laboured–and today’s readers need to be able to know the answers in a digestible form that they can remember. This has 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. 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.
The first step in changing style was my introduction of producing a summary document to accompany our reports. My object here was, quite simply, to meet complaints such as those reflected in remarks as to the ‘size’ of the Privacy report—a three volume magnum opus of nearly 3,000 pages. 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.
The message was lost. So, we started to ask questions. Who was the audience? And was the audience the same for each document? 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 the 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. For the report 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.
But the final reports have become much tighter.
A final word: Independence
With independence as the guiding mantra, the relationship with government is necessarily a sensitive one for law reform bodies. Regular communication is sensible. This is a different concept entirely from taking direction, which is anathema to independence.
In framing the idea of independence in a recent collection of essays on law reform, Emeritus Professor Martin Partington, former Law Commissioner and Special Consultant to the Law Commission of England and Wales, affirmed that ‘it does not mean that law reform bodies should work in isolation from government’.[13] Maintaining an appropriate communication loop is part of what Patricia Hughes, Executive Director of the Law Commission of Ontario, describes as being ‘nimble’:
Ministers change, governments change, members of the agency’s governing board will change, new staff will join, and other actors will undertake work in the same area as a law reform project. All of these can affect the progress of projects or require a shift in focus. The trick for law reform commissions is to maintain consistency while continuing to distinguish itself, to maintain ongoing relationships, even while it develops new ones, orienting new members to the commission’s methods, yet benefitting from the new ideas they may bring.[14]
Hughes identifies the relationship with government as ‘the most significant’ one for law commissions.[15] It is crucial to a commission’s success ‘and very likely to its existence’. She describes the struggle ‘to maintain independence while responding to government expectations’. This is compounded in the context of implementation as, by the time a report is released, ‘the government’s agenda and even the government itself may have changed’. Hughes stresses the importance of communication:
the agency does well to maintain an ongoing relationship, discussing its research agenda, being aware of the government’s own initiatives (to the extent it can) and otherwise maintaining regular contact. Knowing what the government is doing or planning and how it affects the commission’s work (the direction of a project, for example) is at least helpful. There is no magic solution other than ongoing dialogue and ensuring that the commission does not exist in isolation, that it has ‘friends’ who support it and will speak for it.[16]
Why is independence so important? It is absolutely essential to the conception of modern law reform agencies. It is also the key to the value that such agencies can add to government and, in doing so, to the stability of law and the rule of law in the common law world. It was with considerable relief that we read the conclusion of the Department of Finance Inquiry:
this agency is a generalist law reform adviser that, over the years, has been given references covering areas of the law that are the concern of many portfolios. While there are some other law reform/advisory agencies (such as the Companies and Markets Advisory Committee and the Administrative Review Council), these work within recognised and specialised disciplines and have no necessary synergy with the broader and more general functions of the ALRC. This means that there is no other body with which its functions have any particular synergy and with which it would be sensibly merged. On these bases, the Review supports the continued existence of … the ALRC in [its] present separate form …[17]
Like the Law Commission of England and Wales, and about a year later, ‘we survived the summer with our existence and purpose intact and the value of our independence re-affirmed by Government’.[18]
My personal conviction is that an assessment of the contribution that law reform work makes must necessarily have a long view. It must be seen in the light of legal history. This is what makes its work different—and distinctly so—from work conducted within a department. There the outcome is, or is most likely to be, known and the department’s task is to implement and defend the outcome. For a law reform agency, the outcome should never be known till the process has been worked through. We start with questions, and end up with answers. The process is everything and the outcome should be the result of a good process.
Law reform inquiries also have a far bigger role than the reports they produce. 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. As the Federal Court of Australia submitted to the parliamentary inquiry into the ALRC (the one that prompted my ‘Black Knight’ remarks), ‘the ALRC is critically important to the development of legal policy in Australia’.[19] In this way, law reform work contributes to the future in a very real way.
But there is a shadow. Bodies like the ALRC have to be constantly vigilant against the threat of extinction. There is a danger of disappearance, either in law or in fact, that is always a shadow on the horizon for institutional law reform bodies. The Law Reform Commission of Canada, for example, was established as a federal body, like the ALRC, in 1971. It was disbanded in 1993, and its successor, the Law Commission of Canada, although created by statute in 1997, did not have its funding renewed in 2006.[20]
Just last year, in 2014, the National Commission of Audit, announced by the now Treasurer, included in its report a list of ‘Principal bodies for rationalisation’–a word that sends shivers down the spine of law reformers world-wide. The list included bodies that were to be abolished, those to be merged and those that were to be consolidated into departments.[21] The ALRC appeared in that last category. I truly hope that it is not a case of
Plus ça change, plus c’est la même chose.
But for today it is about conversation and a dialogue on our experiences and our aspirations about good governance and public policy. This is a continuing and important conversation.
I will conclude with the final remarks that Lord Justice Munby, then Chairman of the Law Commission of England and Wales, offered in his Denning lecture, as they resonate in my own experiences of the past five years.
Some of what I have said may have sounded rather downbeat, even depressing. These things need to be said, if only so that Government may hear them. But I should not want you to go away downhearted on our behalf. The Law Commission has never been in finer shape. The morale and enthusiasm of our staff ride high. It is a privilege indeed to lead so dedicated and committed a team. We have survived the storm. The future holds great promise.[22]
That is the ‘half-full’ ending. And it is one that I will carry through 2015 as my final year as President of the body I have had the privilege to lead since December 2009. It is one that will be the hallmark of our 40th anniversary celebrations.
* Rosalind Croucher is also Professor of Law, Macquarie University. Some of the themes discussed in this presentation are considered more fully in the review essay, ‘Defending Independence’, (2014) 34 Legal Studies 515-535.
[1] The present legislation is the Australian Law Reform Commission Act 1996 (Cth).
[2] Annual Report 1985, [45].
[3] R Atkinson, ‘Law Reform and Community Participation’, The Promise of Law Reform (Federation Press, 2005), 160–174, 166.
[4] Australian Law Reform Commission Act 1996 (Cth) s 38.
[5] See a summary at: <https://www.alrc.gov.au/law-reform-process> accessed 28 January 2015.
[6] B Opeskin, ‘Engaging the Public: Community Participation in the Genetic Information Inquiry’ (2002) 80 Reform 53.
[7] The opening remarks are included in the transcript of the hearing on 11 February 2011 and on the ALRC website: <https://www.alrc.gov.au/publications/alrc-brief-february-2011/senate-committee-inquiry-alrc> accessed 28 January 2015.
[8] And in the ‘we’ I include myself and the Executive Director of the ALRC, Ms Sabina Wynn.
[9] Annual Report, 1985, [54]–[57].
[10] Reforming Law Reform—Perspectives on Law Reform Process in Hong Kong and Beyond (Hong Kong University Press, 2014), 37.
[11] Such as the podcast on 24 November 2013 by Graeme Innes AM, part-time Commissioner and myself, on the recommendations made in the Final Report, Equality, Capacity and Disability in Commonwealth Laws: <https://www.alrc.gov.au/news-media/podcast-disability-fr> accessed 28 January 2015..
[12] N James, Writing at Work: How to write clearly, effectively and professionally (2007), 52.
[13] Reforming Law Reform, above n 10, 84.
[14] Reforming Law Reform, above n 10, 103.
[15] Ibid, 107.
[16] Ibid, 107.
[17] Available at <http://www.finance.gov.au/wp-content/uploads/2019/08/strategic_review_ag.pdf> (accessed 28 January 2015).
[18] Remarks by Lord Justice Munby, then Chairman of the Law Commission of England and Wales, ‘Shaping the law—the Law Commission at the crossroads’, the Denning Lecture for 2011 (29 November 2011), 6.
[19] Available at <https://www.alrc.gov.au/publications/alrc-brief-february-2011/senate-committee-inquiry-alrc> accessed 28 January 2015.
[20] Reforming Law Reform, above n 10, 92.
[21] National Commission of Audit, Towards Responsible Government. The Report of the National Commission of Audit—Phase One (2014), Annexure C. The report is at <http://www.ncoa.gov.au/report/phase-one/index.html> accessed 28 January 2015.
[22] Ibid, 19–20.