13.05.2025
Speech by ALRC President, the Hon Justice Mordy Bromberg to the Commonwealth Law Conference, Malta 2025
Wednesday, 9 April 2025
ALRC President the Hon Justice Mordy Bromberg
The Australian Law Reform Commission is the Australian government’s independent research and advisory agency on law reform. We conduct inquiries, provide reports and make recommendations for the reform of Australian laws. Our legislative charter is to review those laws referred to us by the Attorney-General, in order to systematically develop and reform the law, particularly by:
- modernising the law;
- removing defects and simplifying the law;
- adopting new or more effective methods for administering the
law; and - providing access to justice.
Over its 50 year history, the ALRC has conducted some 80 inquiries and delivered thousands of evidence-based recommendations for the improvement of Australian law and practice. The ALRC has established a well-earned reputation for excellence. Our inquiries are co-led by renowned subject-matter experts and skilled law reformers. Our staff are skilled in policy development and legislative design. Our recommendations are based on comprehensive consultations and research.
Over 85% of ALRC reports have either been substantially or partially implemented. Beyond the direct influence our recommendations have had on legislation, the ripple effect of the ALRC’s work can be extensively observed in academic and judicial consideration of the law and its need for reform.
I will say more about the work of the ALRC later. First I want to set the scene to make the proposition that I hope you will all accept. My proposition is that independent law reform agencies have an important contribution to make in helping to ensure that our laws are fit for the future. There are converts in the room I know, so my pitch is really directed to the others – perhaps those from nations who have not had the benefit of ‘institutional law reform’. That is – law reform provided by a permanent institution which is expert at law reform and which, importantly, is independent of government.
Let me begin by spelling out some fairly obvious propositions that I am sure we can all agree with.
We can all agree that good law is a critical component of every well-functioning society. Law is about regulating the behaviour of persons in a sea of competing interests and values. Law provides the infrastructure for our social and our economic interactions. It governs our existence as a society. The importance of the law to our individual wellbeing, both social and economic, and to our coherence as a society cannot be overstated.
We can also all agree that law is more likely to be good law if it is well crafted and well maintained. Modern laws that are fit for the future will be laws that are well considered. They will be laws which are based on evidence rather than mere intuition. They will be laws which are founded upon policy which is inclusive. That is, laws which are formulated with extensive input from the very persons whose behaviour the law seeks to regulate in order to get their insights on the problems that the law reform exercise must address as well as to assist in finding the solutions.
As proponents of the Rule of Law, we can also agree that for a good law to be effective it needs to be accessible. Accessible in two respects. First, the law should be simple, clear and coherent and thus able to be understood and navigated by those whom it effects. In other words, the law must be well designed. Not only well drafted using clear and concise language but, importantly, the law must be based on an underlying structure which allows every part of the legislation to cohere and operate consistently with the next. Secondly, there must be access to justice. That is, equal access to the redress or the relief that the law intends to provide.
We are also likely to agree that there are laws on our statute books that are not good laws in the sense here being discussed. Australia’s statute book is, unfortunately, replete with examples of legislative disrepair, including important statutes which provide the legal infrastructure for many of our vital industries or provide the legal framework through which critical social services are distributed. There are numerous statutes which fail to meet a basic requirement of the Rule of Law – that our laws are clear and accessible.
Australia’s statute book is also replete with examples of laws that fail to satisfy or at least fully satisfy the laws’ policy objectives. Sometimes that is caused by the faulty design of the original architect. Commonly, knee-jerk legislative amendments designed to fix potholed problems lead to inconsistencies and policy incoherence. Sometimes, the behavioural change sought to be achieved by the law is cleverly avoided. Most often, laws in need of a policy make-over simply need to be modernized so that they better align with changed circumstances brought about by the
development of new technologies or the evolution of social norms.
Lastly, a further aspect of the consensus I am sure we all share, is that bad laws – that is laws that fail to meet their policy objectives or are inaccessible because of bad design or because the relief they promise is not sufficiently accessible to all – have both a human and an economic cost.
The economic costs are undoubtedly large. Overly prescriptive and structurally incoherent lawsresult in excessive compliance costs and in unnecessary but costly disputation. More expensive than that will be the fact that ineffective laws will fail to solve the social or commercial problems they were intended to resolve.
Of course, the social cost of bad legal design and a lack of legislative maintenance is also manifested in the failure to provide access to justice and to just outcomes. There is a heavy human cost and a heavy economic cost for a society that fails to optimise justice.
Poorly designed, poorly maintained and inaccessible laws are, I think, largely a product of the failure of government to appreciate the real value of good law. A failure to properly recognise law as vital infrastructure.
Governments seem to recognise the importance of building and maintaining the physical infrastructure necessary to sustain and nurture our economic well-being. New freeways are built, and our roads are systematically maintained so that the infrastructure necessary to sustain and improve our economic wealth is and remains best practice. In that respect, we see the value of spending money upfront to properly design our infrastructure, to build it with the best available components, and to service our investment with systematic and regular maintenance. It is, as
we recognise, money well spent because the benefits of good infrastructure far outweigh its cost.
When it comes to legal infrastructure, governments often fail to appreciate the benefits of well-designed laws and the enormous economic and social cost of poor legislative design and a lack of
systematic maintenance.
If we want our laws to purr then we need to make well-designed laws with evidence-based components. Those laws will need to be maintained. A service sticker, like that found on every car windscreen, should be stamped on every enactment. We need to recognise that laws based on little more than the intuition of the politicians who made them will not take us to where justice needs to be.
Law reform has an obvious role in making our laws purr. And the proposition I would like us all to accept is that institutional law reform can make an immensely valuable contribution to ensuring that our laws are and remain fit for the future.
Institutional law reform seems to be more prevalent in the Commonwealth family of nations than it is in the rest of the world. An explosion of institutional law reform amongst many nations of the
Commonwealth occurred in the 1960s and 1970s, with the establishment of law reform agencies in England and Wales, in Scotland and in most of the states and territories of Australia, as well as at the national level with the formation of the Australian Law Reform Commission in 1975.
Of course, beyond institutional law reform there are, and for many centuries have been, other kinds of law reform. Law reform has long been undertaken by judge-made common law. However, with the advent of representative government, the judiciary has generally retreated from significant innovation in deference to the theory that lawmaking is mostly for the elected. The elected engage in law reform processes most often within government departments and through parliamentary committees. Ad hoc Royal Commissions have also been significant sources of law reform. The field is somewhat crowded.
I do not wish to contend that law reform should always be done by law reform agencies like the ALRC. But I do contend that institutional law reform is a necessary cog in the wheel. It deserves to be recognised as an essential component of a representative democracy which provides fair, accessible and relevant laws of the kind that all of its citizens are entitled to enjoy.
There is little doubt in my mind that institutional law reform is best capable of delivering reform of the highest quality. Compared to other sources of law reform, well-resourced institutional law reform usually has one or more of the following advantages:
i. its work is considered and thorough and tends not to be hurried by political imperatives, as is often the case when law reform is done within government departments or by parliamentary committees;
ii. its actors are not ad hoc. Recognising that law reform is a discipline requiring unique skill and experience, institutional law reform is able to provide career reformers working closely with
subject-matter experts;
iii. it utilises evidence gathering techniques which tend to be superior in both the scope and the quality of the evidence collected, including because consultation with stakeholders will usually be
more thorough and evidence gathering will take into account both local and international experience;
iv. law reform institutions, like the ALRC, have exceptional access to the very best specialists – judges, scholars and leading practitioners both nationally and internationally – who provide
subject-matter expertise that significantly contributes to ideas for reform and ensures the quality-control necessary for effective reform;
v. lastly and importantly, law reform institutions like the ALRC function independently of government. The advice we give is frank and fearless. It is the best advice available and not simply what the government may want to hear. When law reform is done in-house, it will often be controlled by the political imperatives of government and will sometimes be more based in intuition than
evidence.
Furthermore, lawyers are not usually trained to think outside the box and generally do not. Law reformers must. Law reform should not be confined to tinkering within the comfort zone well known to and enjoyed by the specialist legal profession in the legal field being reformed. Law reformers should come into the field with fresh eyes and throw up for consideration fresh approaches for resolving what seem to be intractable legal problems. This is a critical contribution that institutional law reformers bring to the process of law reform and is particularly important to the reform of policy.
I return then to the work of the Australian Law Reform Commission to give some examples of the contribution to good laws that institutional law reform can make.
The ALRC has assisted the reform of Australian law across a diverse range of subjects including:
- human tissue laws (1977 and 2025);
- domestic or family violence (1986 and 2010);
- family law (1987 and 2017);
- occupiers liability (1998);
- class actions (1988 and 2017);
- multiculturalism (1992);
- discrimination (1994, 2014 and 2022);
- freedom of information (1996);
- genetics and gene patenting (2003 and 2004);
- privacy law (1983, 2006 and 2013);
- sedition (2006);
- native title (2013 and 2025);
- copyright & the digital economy (2012);
- elder abuse (2016);
- corporate criminal responsibility (2019);
- financial services (2020); and
- sexual violence (2024).
The codification of the common law rules of evidence into a national uniform evidence law is a celebrated example of the ALRC’s achievements in technical or doctrinal law reform. In relation to social policy reform, the ALRC’s report on the Recognition of Aboriginal Customary Laws is often credited for laying the foundations for the recognition of native title by Australia’s common law.
[Justice Bromberg closed with unprepared remarks noting the breadth and complexity of ALRC inquiry matters over the last several years]
END
