Relationships with other law reformers — joint law reform projects

Professor Rosalind Croucher, President, Australian Law Reform Commission, addressing the Australasian Law Reform Agencies Conference (ALRAC) in Brisbane.

9 September 2010

I have been to Brisbane several times over the past two years, for consultations, conferences and the like. Each time I have been moved by the welcome to country. This morning’s welcome by Songwoman Maroochy of the Turrbal People was another fine example of a deeply moving beginning to a conference. I thank her and respond by acknowledging both the Turrbal and Yuggara peoples and their elders, past and present, the traditional custodians of this land on both sides of the beautiful river which winds its way through Brisbane. Seeing how lovely Brisbane is I must express some sympathy with the comment this morning of Neil Rees from the Victorian Law Reform Commission that he might just suggest that the VLRC move to Brisbane!

Where law reform happens

The topic of my brief presentation today is on joint law reform projects. The main illustration I will such projects is the Family Violence inquiry, which we are just finishing at the moment—a joint project with the New South Wales Law Reform Commission (NSWLRC). We are both institutional law reform agencies. But before I speak about the challenges of this project, I want to explore the idea of where law reform happens and how the idea of relationships with other law reformers can be conceived much more widely than formal joint projects like the Family Violence inquiry. The idea of ‘relationships with other law reformers’ is the theme of this session and I am using this as the invitation to conceive of the wide range of relationships that happen in the law reform space.

Law reform happens in many places. My predecessor as President of the ALRC, Emeritus Professor David Weisbrot, described the law reforming landscape in Australia as ‘a crowded field’[2], including:

• 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 (ARC) and the Corporate Law Economic Reform Project (CLERP);
• Royal Commissions and other ad hoc bodies appointed to investigate matters of public concern;
• as well as—last, but by no means least—law reform commissions.

So when we talk about relationships with other law reformers, we need to include our participation not only with other law reform bodies—independent commissions—but also all these various agencies of law reform.

To take a snapshot of engagement from the ALRC’s 2008-2009 Annual Report, the ALRC contributed to five inquiries by way of formal submission, as set out on page 27:

We do not express views ‘at large’, as the ALRC is not a lobby group. When we make submissions, we do so within the framework of a protocol, outlining when it is appropriate for the ALRC to make an external submission, including:

• the consonance of issues raised in the review or inquiry being undertaken by the external body and issues covered in current reference work or past reference work of the ALRC;
• the consonance of issues raised in the review or inquiry being undertaken by the body and the expertise and knowledge of current Commissioners and staff members; and
• the availability of, and impact upon, ALRC resources.[3]

Relationships with other law reform agencies

A relationship with another law reform agency may happen in a range of ways, and either formally, or informally.

A formal relationship may arise through Terms of Reference which are given to two, or more, commissions to undertake together—like the Family Violence inquiry. Other examples include:

• the work in the 1990s on the FOI Act, undertaken with the Administrative Review Council—Open government: a review of the federal Freedom of Information Act 1982 (ALRC 77; ARC 40, 1996);
• the Uniform Evidence project with the NSWLRC and the VLRC in 2006;
• ‘Essentially Yours’ on human genetic information in 2003—the product of a two-year inquiry by the ALRC and the Australian Health Ethics Committee (AHEC) of the NHMRC
• the ‘Seen and Heard’ project with HREOC released in 1997, concerning priority for children in the legal process;

Another example is where the ALRC participates as an observer: for example, the Family Law Council; the Uniform Succession Laws Project, led by the Queensland Law Reform Commission. I am also ex officio a member of the Administrative Review Council.

At times the ALRC is asked to provide training to other existing law reform bodies, or to advise on the establishment of them. Some examples include the training for the PNG law reform agency by Research Manager, Lani Blackman, together with David Weisbrot; the trip to Botswana by Commissioner Les McCrimmon with David Weisbrot. We also have regular visits of international law reform bodies to the ALRC—such as the Solomon Islands LRC and Samoa LRC. ALRAC itself plays a vital role in facilitating information exchange, and the building of cooperative and friendly relationships. The presentation that follows mine, by Leilani Tuala-Warren of the Samoa LRC and Laura Watts, of the British Columbia Law Institute is an excellent demonstration of a bond forged at the last ALRAC conference in Vanuatu in 2008.

Challenges of joint law reform projects

Now I wish to consider the example of a formal collaboration, the Family Violence project with NSWLRC.

Joint law reform projects of such a kind have particular challenges. Here I will suggest just a few examples. We talked this morning about the pressure on law reform projects of, it seems, ever-decreasing time frames for inquiries.  With a joint project, each issue or challenge we have to navigate magnifies the panic factor that tight timetables can generate.

Technology

Even if you have technology, and ready internet access—which is not always the case with our South Pacific agency cousins—it doesn’t mean that everything will run smoothly.  Even between the NSWLRC and the ALRC we have had significant technology issues.  A very simple illustration is that in sending emails to the NSWLRC we could not include bullet-points, as they appeared as big blank spaces!  Coordination of style templates, importation of references stored in bibliographic databases (we use Endnote)—all this presented big challenges.  We have a whole lot of computers dotted around the ALRC offices with signs like this one: “Do NOT turn off this computer. In use by Hilary Astor” (Commissioner Hilary Astor). But remote access like this is not always effortless.  Actually, it is quite tricky. The best way through it has been by having NSWLRC staff sitting in the ALRC offices—not as remote ghosts accessing our system, but being here, with immediate access to things.

Reporting dates—what if you need an extension?

The different Attorneys-General may have different political agendas, driven by their own particular parliamentary calendars (and election cycles).  They may not each be as sympathetic as the other when it comes to requests for extensions.

What if there is disagreement?

A good example is the FOI report. It had some recommendations that were ALRC recommendations and some that were ARC recommendations on the same subject matter. The ALRC did not like conclusive certificates at all and wanted to limit them severely.  The ARC was ‘softer’ here.

Each law reform commission may have a ‘division’ that needs to approve recommendations—what if one body doesn’t like what the other body is doing? How do you factor this into a timetable? It requires more time, clearly.

Division of work? 

This can be very thorny.  The ALRC, NSWLRC and VLRC divided up the work for the Uniform Evidence project, with the Commissions together commenting on all chapters.  As the project was one that was expressed as a harmonisation project, ongoing consultative relationships were also necessary with other law reform bodies. But the resources of each body may not be available in exactly the same way.  This can put considerable pressure on joint law reform projects.

State-federal divide

The ALRC is a federal body, with a principal focus on federal law. There are limits in what we can do in terms of state and territory spheres. The ALRC’s functions are set out in the Australian Law Reform Commission Act 1996 s 21(1):

The Commission has the following functions in relation to matters referred to it by the Attorney-General:

(a)     to review Commonwealth laws relevant to those matters for the purposes of systematically developing and reforming the law, particularly by:

(i)      bringing the law into line with current conditions and ensuring that it meets current needs; and

(ii)     removing defects in the law; and

(iii)    simplifying the law; and

(iv)    adopting new or more effective methods for administering the law and dispensing justice; and

(v)     providing improved access to justice;

(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;

(e)     to consider proposals for complementary Commonwealth, State and Territory laws about those matters.

The NSWLRC’s functions are similarly set out in its constituting Act, the New South Wales Law Reform Commission Act 1966, s 10(1), which provides that:

(1) The Commission, in accordance with any reference to it made by the Minister:

         (a)     shall consider the law, enacted or promulgated by the Legislature of New South Wales or by any person under the authority of that Legislature, with a view to, or for the purpose of:

                   (i)      eliminating defects and anachronisms in the law,

                   (ii)     repealing obsolete or unnecessary enactments,

                   (iii)    consolidating, codifying or revising the law,

                   (iv)    simplifying or modernising the law by bringing it into accord with current conditions,

                   (v)     adopting new or more effective methods for the administration of the law and the dispensation of justice,

                   (vi)    systematically developing and reforming the law,

         (b)     shall consider proposals relating to matters in respect of which it is competent for the Legislature of New South Wales or any person under the authority of that Legislature to enact or promulgate laws, and

         (c)     may for the purposes of this section hold and conduct such inquiries as it thinks fit.

How do these fit together in a joint project? Having a quick look at the Terms of Reference for the Family Violence inquiry, you can see that we had quite a challenge in this regard. We were asked to look at (1) the interaction in practice of family violence/child protection/criminal/Family laws; and (2) the impact on victims of inconsistent interpretation or application of laws in cases of sexual assault. So, the inquiry engages with Commonwealth laws, as well as state and territory laws on many levels. As noted in the constituting provisions above, the ALRC—as a Commonwealth body—is principally concerned with Commonwealth laws or matters of uniformity and complementarity of Commonwealth laws with state and territory laws; and the NSWLRC—as a state body—is principally concerned with NSW laws. In this Inquiry, however, both bodies, acting together, have been asked to go further in their respective functions. What we are looking at are intersections and interactions between and among the following:

• state and territory family violence laws with the Family Law Act;
• state and territory child protection laws with the Family Law Act;
• state and territory family violence laws with relevant Commonwealth, state and territory criminal laws;
• state and territory child protection laws with relevant Commonwealth, state and territory criminal laws.

There are further areas of interaction that the Commissions consider lie within the first Term of Reference, in particular, the interaction of state and territory family violence laws and child protection laws. We also have to look at sexual assault in the family violence context. So we were both pushing outside our functions, but with the imprimatur of the Standing Committee of Attorneys-General, we have the legitimacy of looking nationally and into all states and territories. Such support is essential to projects like this.

Our approach

How did we go about it? The ALRC and NSWLRC divided up the work for the final report, so that the NSWLRC had primary responsibility for the part of child protection intersections with the other designated laws. We were also able to divide up for the purposes of consultations, particularly during the very busy consultation period in May. We also recognised the importance of national coverage for this inquiry—particularly reaching into the Northern Territory and Western Australia for a number of meetings with a range of Indigenous stakeholders. The ALRC went to WA and NT, while the NSWLRC was able to undertake a round of concentrated consultations in regional NSW. Our part-time Commissioner, Magistrate Anne Goldsbrough of the Victorian Magistrates’ Court also organised a judicial roundtable in Melbourne, and she and George Zdenkowski—a special adviser to the ALRC throughout the inquiry—conducted a round of meetings in Hobart.

Crowded field

Another challenge, and probably peculiar to this particular inquiry, was the fact that it was a rather crowded field.  We had been given instructions not to duplicate several other related projects, but even as we got underway several others were either commissioned or coming to an end, reporting during the inquiry.  This was a further issue in the context of a tight timetable.  If we are not to duplicate, we need to know the reach of that other work—but some of this was only published at the end of January.

The keys to joint law reform projects

If I were to do a checklist of essential qualities for a smooth partnership and successful project, my list would definitely include the following:

• goodwill and trust—this is where the kind of respectful and warm relationships we build through ALRAC meetings are so important
• patience—ah yes, lots of that!
• sense of humour—lots of that too!
• pragmatism and flexibility—as timetables constantly need revising in light of the many exigencies that arise, such as illness in small agencies when the intense periods hit winter
• one step at a time—probably a reflection of most of the dotpoints already (and a good lesson my mother taught me)
• project management—keeping an eye to the deadline, but also conscious of the need to revise timetables particularly as the capacity of team members inevitably varies
• optimism—probably the quality that is most important of all

With a good measure of all these qualities the result will be smooth, rewarding and successful. One way of thinking about this is captured in the final two slides that accompany this presentation. Imagine a child’s swimming party—lots of arms and legs and much thrashing in the water. It was an image that came to mind when thinking of all the activity in the ‘family violence space’ at the moment. When I shared this observation with Professor Hilary Astor, late last year, she expressed the aspiration that we should end up as Olympic-level synchronised swimmers. It is an excellent aspiration for joint law reform projects as well. And it is a nice image with which to end this presentation.