Partnerships in Law Reform—Contributions to Policy and Building Impact

Research Partnership Roundtable, Corrs Chambers Westgarth Offices, Brisbane, 1 June 2016, Professor Rosalind Croucher AM* President, Australian Law Reform Commission

Introduction

Thank you very much for inviting me here today. When Amanda Alford wrote to me to invite me to speak, how could I resist? Given that I know Amanda well, I knew it would be: well planned, well organised, and brilliantly conceived—and of course with excellent participants! (Dropping ‘perfect person to deliver the keynote presentation’ into her invitation didn’t hurt, either!)

And the timing is pretty special. We are in the middle of Reconciliation Week in Australia, bookended by two key moments in our legal history and our relationship, in law, with Australia’s Indigenous peoples. Last Friday, 27 May, was the anniversary of the 1967 Referendum that asked whether Aboriginal and Torres Strait Islander (ATSI) peoples should be included in the census and whether to give the Australian Government power to make laws for ATSI peoples; and 3 June, two days hence, is Mabo Day, commemorating the day in 1992 when the High Court of Australia held that Indigenous peoples’ claims to land were not extinguished on the assertion of British sovereignty—overturning the legal fiction of ‘terra nullius’ in Australia. And so it is especially significant for me, as the Head of an Australian Government agency, and in the spirit of our Reconciliation Action Plan, to begin my presentation by acknowledging the traditional custodians of this land, and to pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the Turrbul People. I also extend my respect to all Aboriginal and Torres Strait Islander participants here today.

Amanda gave me a brief, focusing, among other things, on the contributions that both academics and community legal centres make to law reform, public policy and services.

Before I embark upon that let me acknowledge the contributions of the University of Queensland and also Corrs Chambers Westgarth. Their involvement in today’s meeting reflects the idea of ‘partnership’ that is captured in the title of this roundtable.

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

• who and what drives law reform
• the process of law reforming
• the law reform process and you
• law reform contributions and impact.

Who and what drives 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—the ALRC—is well placed to co-ordinate a national approach aimed at achieving harmonisation across the various jurisdictions. The ALRC work in the area of evidence laws is a good example. More recently, in 2010, the ALRC completed a joint inquiry with the New South Wales Law Reform Commission on family violence in the report, Family Violence—A National Legal Response (ALRC Report 114), in which we are asked to consider the interaction in practice of state and territory family violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws; plus the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context. Another big inquiry!

Technology has proved just too fast and furious for law—common law and statute law—to cope—imagine all the challenges posed by the rapid evolution of information and medical technology. The ALRC’s Gene Patenting and Media Classification inquiries are examples—as was the 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 Family Law Council; Royal Commissions and other ad hoc bodies appointed to investigate matters of public concern—think, for example of the Victorian Royal Commission into Family Violence; and the inquiry headed by Elizabeth Broderick, when Sex Discrimination Commissioner, into the treatment of women in the Australian Defence Force. As well as all such bodies ‘doing law reform’, there are also law reform commissions.

Law reform commissions—really good, institutional ones—are independent bodies and able to reflect fully, consult extensively, analyse deeply, and recommend powerfully. A key part of what makes the inquiry process so credible, and gives bodies like the ALRC such a high reputation, is the process of community involvement.

The process of law reforming

The ALRC has developed a very streamlined process for conducting inquiries.[3] 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 a team of legal officers, currently we have 6 full time legal officers, so we are a very small but highly focused team!

The ALRC also has a major obligation of consultation—not only in each set of Terms of Reference, but also under the provisions of the Australian Law Reform Commission Act 1996 (Cth), as the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.[4] The ALRC has really taken consultation to heart and widespread community consultation is a genuine commitment.[5] For example, during the 2014–15 year, in the Native Title inquiry we undertook 162 consultations and received 72 submissions; in the Disability inquiry, 90 consultations and 118 submissions, and for the Freedoms inquiry, 82 submissions and 38 consultations. The Family Violence inquiry is an illustration of national consultations, which involved considerable involvement of CLCs.

The process—and you

Academics and community legal centres play an absolutely crucial role in law reform; and in several ways.

Let’s begin by looking at academics; and there are a number of different ways that academics contribute to law reform. First, academic books and journals are frequently cited throughout ALRC reports. They are a principal means for us to get to grips quickly 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—and, now, elder abuse. Academic writing is a principal plank in our initial literature review of a new area.

But there is often a difference in the way that academics write from what I might describe as a bureaucrat perspective. The bureaucrat wants quick answers. The academic may discuss problem and possibilities, within particular theoretical perspectives, but not necessarily leading to, say, ‘the answer is X’. This can be frustrating for the bureaucrat. But from our perspective, as law reformers, the path to finding ‘the answer’ is informed by that academic discussion, leaving it to us to suggest what that answer might be (‘the X factor’).

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). To illustrate, in the Age Barriers inquiry (that Amanda was involved in) the Advisory Committee included five academics of the eight Committee members:

• Emeritus Professor Terry Carney AO, Faculty of Law, University of Sydney
• Emeritus Professor Ron McCallum AO, Faculty of Law, University of Sydney
• Therese MacDermott, Macquarie Law School, Macquarie University, Sydney
• Scientia Professor John Piggott, Australian School of Business, University of New South Wales
• Professor Philip Taylor, Director, Research and Graduate Studies, Monash University, Melbourne

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

Another role is by making a submission. Submissions form an important part of the evidence base that informs the development of recommendations. But, I have to say, academic participation here is not particularly high. In fact it is disappointingly low.

When it comes to community legal centres, the participation is a very active and very valuable one. This is especially the case in the inquiries that I might broadly describe as social justice ones: like family violence, age barriers and disability. It will certainly be the case in the current inquiry into elder abuse. But community legal centre involvement is not confined to such inquiries. I remember in both the legal professional privilege and discovery inquiries, for example, that CLCs had a distinct voice to contribute. What you get, above all, is front line experience. Where the CLC has a particular focus, as in the women’s legal services and domestic violence services, we get access to a set of frontline case studies that can prove of great value in testing ideas for reform and then we can use the CLCs as a sounding board in relation to mooted solutions. In the family violence inquiry we set up an online forum specifically for women’s legal services to talk with us over a period of three months about a number of different questions, issues and solutions in relation to family violence. These frontline observations fed directly into our thinking and reform proposals.

I still quote two distinct contributions from the Family Violence inquiry. They are etched in my consciousness. One was the simple plea in a submission:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers.[6]

The second was a comment by Penny Taylor, a solicitor with the Top End Women’s Legal Service, during a consultation in Darwin, that ‘you can have the perfect law, but …’.[7] 

I appreciate how constrained CLCs may be in terms of resources, which can have an impact on the ability to participate in policy and advocacy work, but I have to say that from my experience in receiving and reviewing submissions made from the CLC point of view, their submissions have been an invaluable resource.

To conclude this section I will add a further observation, based on my experience of now over nine years with the ALRC. It is that the process of consultation, of engaging the public, stakeholders, community organisations 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 affect 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.[8]

Law reform contributions and impact

Addressing the academics now, I want to say, why not get involved in active contributions to law reform, and particularly through making submissions? Submissions are cited and quoted throughout ALRC reports. If your view is found persuasive or helpful in our thinking, then you are having a real impact. Impact is now a word that has been given new focus by the Australian Research Council with a definition of ‘research impact’ developed by a working group. It is worth reflecting upon in the context of today’s seminar. 

I am pleased to see it. It was only a few years ago that I wrote in lament about how the impact message of contributions to law reform was being missed in measures of ‘valuing’ legal research.[9] It was a time of frustration about the way that law research is, or is not, ‘counted’; the ranking of journals—now abandoned by the ARC, but still playing a kind of underground role in informing research performance assessments I fear; and so on. Then I advised aspiring academics to remember that promotion is based not just on research but on a range of things, including teaching and community and professional engagement. These are matters that, in a professional discipline, I consider should be taken seriously. Yes, writing refereed journal articles is essential in building an academic research profile, but textbooks do have value, maybe not in the ‘research’ that is counted for ERA purposes, but they do advance the claim to excellence in teaching. The same goes for writing in professional journals or mass media—and in making submissions to public inquiries: they have value in advancing an academic’s claim in relation to community and professional engagement. 

But now there is a place to argue the case for impact. The ARC has published the ‘Research Impact Principles and Framework’.[10]

For a start, research impact is defined, as:

… the demonstrable contribution that research makes to the economy, society, culture, national security, public policy or services, health, the environment, or quality of life, beyond contributions to academia.

The key words here concern the ‘demonstrable contribution’ to ‘public policy or services’ ‘beyond contributions to academia’—just to single out some.

Included in the material on the ARC website is also a ‘Research Impact Pathway Table’, including:

• Inputs
• Activities—including community and stakeholder engagement
• Outputs—including publications; policy briefings and media
• Outcomes—including implementation of programs and policy; citations; and integration into policy
• Benefits

I have included the elements in this pathway that have the greatest resonance for the themes of today’s discussion. The pathway provides the way to articulate contributions to CLCs’ policy and advocacy work and to law reform—acknowledging that both may be intertwined. The kinds of things I have been speaking about, (maybe even ‘banging on’ about), to encourage faith in the true value of what legal academics do, have now been calibrated within the research excellence framework of the Australian Research Council. This is a moment of celebration! But now it is vital that the legal academy makes these connections and that individual academics, supported by their enlightened senior research position holders (usually of the hyphenated variety), work on pressing this new framework into service in the context of law reform. In the ‘Impact Measurement Principles’, the ARC advocates respect for the diversity in research disciplines and encourages a consultative approach in regard to implementing impact reporting. I see the time as ripe for making the case for impact within this new framework and incorporating the language and structure of the research impact pathway into writing things like the ‘impact statement’ in a grant application.

Let’s take an example from the ALRC Freedoms inquiry, completed in December 2015. As part of the national consultative process for this inquiry the ALRC conducted a series of symposia focused on aspects of the inquiry around the country in each capital city. In Perth, in September, the symposium was on ‘Freedom’s Limits: Speech, Association and Movement in the Australian Legal System’. Lorraine Finlay, a Lecturer at Murdoch University, made a presentation focused on s 18C of the Racial Discrimination Act 1975 (Cth), a section which has become rather controversial since the decision in Eatock v Bolt.[11] Lorraine’s work was being developed in a co-authored publication with two other Murdoch colleagues that is about to be released: No Offence Intended: Why 18C is Wrong, by Connor Court publishing. On the Research Impact Pathway, Lorraine’s presentation may be considered as ‘community and stakeholder engagement’ under ‘activities’. The ALRC website publication of her presentation and the subsequent book are ‘outputs’.[12] Now for the next step. Lorraine’s analysis of the potential constitutional challenges to s 18C informed the analysis of the ALRC in the very important chapter on Freedom of Speech, chapter 4. Lorraine’s presentation was cited and integrated into policy—both in the ‘outcomes’ list. The ALRC’s conclusion was that s 18C, and the part of the Act in which it is located, would benefit from more thorough review in relation to freedom of speech.

So, there is value, there is impact, in law reform involvement. Keep your finger on the pulse of law reform projects. 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.

Here CLCs play a fundamentally important role. They need help. Academic partnerships with CLCs can provide an opportunity to channel good ideas and to use frontline case studies as examples to advocate the need for change and to road test ideas for solutions—adding the ‘X factor’ to academic work.

The benefits? Demonstrable contributions to public policy beyond contributions to academia.

Final words

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. Similarly with ALRC reports—and it is something I appreciate deeply.

Each ALRC 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. This is a very academic aspect of our work. It also valued highly. I note here the remarks of the Federal Court in its submission to a 2010 inquiry by the Senate Legal and Constitutional Affairs References Committee into role and funding of the ALRC:

The Court benefits greatly from the ALRC’s reports, research and analysis of complex areas of law within federal jurisdiction. … More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented. For example, the ALRC’s reports on evidence, admiralty and insurance have been critical in assisting the Court’s own appreciation and development of the law in these areas. In this way, the ALRC’s reports have assisted the Court in the tasks of ascertaining the law, interpreting statute and developing the common law … It is only because the scholarship embodied in the ALRC’s reports has been first class that they have been of assistance to the judiciary. … In this way the ALRC’s published work contributes to the high quality of judicial decision-making in this Court.[13]

The Government response to the Committee’s report also added lustre to such comments in stating that it

has repeatedly put on record its strong support for the work of the Australian Law Reform Commission (ALRC) and agrees with the Senate Committee’s assessment that the ALRC’s work is widely respected. Since its establishment in 1973, the ALRC has concluded more than 100 inquiries and has made a substantial contribution to the public debate on issues as diverse as privacy, personal insolvency, the use of genetic information, admiralty law and the operation of the federal justice system.[14]

These are excellent observations about ‘impact’.

When I was introducing each of the national symposiums for the freedoms inquiry I concluded by referring to something that the Hon Michael Kirby AC CMG, the foundation Chairman of the ALRC, said in 2008, about the role of permanent law reform bodies in keeping ‘the flame of ideas’ alight.[15] I saw the symposiums as helping to fan those flames. Today we are doing a bit more fanning and tossing the embers in different directions.

Effective and thoughtful law reform is dependent on partnerships. It is dependent on the involvement of people like you. The ARC has now given added legitimacy to what we have known for ages: that there is real value in contributing to the processes of legal policy change. This is a significant new day.