Professor Rosalind Croucher AM* President, Australian Law Reform Commission, 23 October 2015, Federal Court, Sydney.
Thank you, Mr Kirby, for your wonderfully warm and vivid recollections of the early years of the ALRC.
Marking the achievements of four decades
In my role as President I stand on the shoulders of giants: particularly the six Chairmen and Presidents who have preceded me, from Michael Kirby to, most recently, David Weisbrot, the longest serving ALRC President, to date. Each has their own distinct ‘chapter’ of contributions to the ALRC’s history.
In my brief remarks I will provide some reflections on the ALRC’s first forty years. But exactly how can you capture the achievements of four decades?
Is it the 87 reports that we’ve completed? Or the fact that, as of June this year, over 86% have been substantially or partially implemented? But at anniversary moments you want to do something special—historic, even colourful.
At the 25th anniversary there was a conference, focused on the recent tabling of the landmark, Managing Justice report. The colourful part came when, with suitable pause and excellent timing, Michael Kirby donned his golden jacket.
At the 30th anniversary there was a symposium and the publication of an excellent collection of essays, The Promise of Law Reform, edited by Commissioner Brian Opeskin and David Weisbrot, with contributions from a veritable ‘who’s who’ in the law reform world. There was also a short film, ‘30 Years of Law Reform’.
So what could we do to mark the 40th? First we used our current inquiry into encroachments on traditional rights, freedoms and privileges—a singularly appropriate inquiry to be conducting in this the 800th anniversary year of the sealing of the Magna Carta—to hold a series of national symposia. Each focused on an aspect of the freedoms inquiry, but it also provided an opportunity to showcase the nature of the ALRC’s work and processes. We started in Brisbane, finishing in Sydney, with Adelaide, Perth and Melbourne in between. (I also did an ‘off Broadway’ presentation at Southern Cross University in July, the Michael Kirby Lecture, entitled ‘Re-imagining law reform’).
But we needed something additionally special—and different.
And then it came to me: mille fleurs. It was an idea borne of the imagery of medieval tapestries, a distinct feature of which are the thousands of tiny flowers and animals scattered all through the design. I imagine law reform as like those wonderful tapestries. There are so many contributions of so many people, each a flower (or animal) in the large design, integral to its overall power and beauty.
So today we reveal to the world our virtual timeline in honour of our 40th, to capture some of the mille fleurs of our history. Its beauty is that it is a living, growing thing and infinitely extendable. It includes recorded reflections and greetings—‘sound bites’—from past Commissioners and Executive Directors through the decades; photographs; documents; cartoons; short films. The ALRC’s historical archive has been brought to life—made accessible to people across Australia, indeed around the world, through the use of digital online technology.
Lowlights & highlights
Summarising some of the key points over the past forty years, I thought I would draw out some ‘lowlights’ and ‘highlights’—brushing lightly over the former, of course. The key to moments such as these is what you learn from them and also the importance of retaining a keen sense of humour.
[Image of logo, see timeline at 1996] In 1996, the ALRC was awarded the ‘Worst Logo in Law Award’ by the Law Institute Journal of Victoria. The logo had been hand-designed by the President of the ALRC, Alan Rose, himself. Refusing to let this slight go unanswered, Mr Rose replied in a letter to the editor that expensive consultants had been eschewed in favour of ‘in-house talent … unimpeded by any form of artistic training’.
The result is a logo which never fails to impress itself on those who have dealings with the Commission. I have consistently noticed a slight pause before compliments on its verve and originality are ventured … Your award, then, is just another example of the reformer’s curse— having to wait for the rest of society to catch up.
Having a sense of humour, as President, helps.
A regular challenge for government agencies is managing budget cuts.
[Photograph, see timeline at 1984] I thought I would start this example with this image, of the ALRC in 1984, at the end of its first decade. It shows the 17 Commissioners of the time.
By 2010, after at least two rounds of significant cuts in the intervening 25 years, we were hit again by another very large cut—of 20%—by the previous Government. We were now down to one full-time Commissioner and three part-time. In giving evidence to a Senate inquiry into our resources at the end of that year, I found the best way to express how it felt by drawing upon the literary canon. Specifically, Monty Python and the Holy Grail, and the tale of the Black Knight.
[Cartoon, see timeline at April 2011] It prompted a cartoon showing several people at the ALRC with limbs removed, Black Knight style. The question is put, ‘Managing to get anything done?’, with the reply, ‘Bits and pieces’.
It proved to be a powerful metaphor when Senators recalled it to me during Senate Estimates hearings thereafter: ‘Professor Croucher, I can’t get the Black Knight out of my head!’, said the Chair.
Once again a sense of humour helped.
Since then our inquiry work has been managed through the appointment of inquiry-specific Commissioners as well as the continued appointment of excellent part-time Commissioners, many from the Federal Court.
Now to some highlights. There are so many highlights over the four decades. Here are but some.
First, there are the reports. All our inquiries are significant, and many of our Commissioners found it hard to identify the ‘stand-outs’. But some really do stand out—often including a number of reports on related themes over the years.
The inquiry into the recognition of Aboriginal Customary Laws, completed in 1986, was led by James Crawford, now a Judge of the International Court of Justice. It was a mammoth nine-year inquiry, and the ALRC’s 31st report—running to over 1,000 pages. It remains one of the most-visited reports on the ALRC website—and, since 2010 when we started counting these things, visited nearly 200,000 times. It is also the 4th most downloaded of all our reports—over 5,500 times, counting just our website alone.
Significantly, the reflections in that report were ones we returned to in the Native Title inquiry. The report, Connection to Country: Review of the Native Title Act 1993 (Cth), an inquiry led by Lee Godden, was launched on 29 June this year.
In 2005 Murray Wilcox spoke of the influence of the Customary Laws report on judges, particular in approaches to sentencing, and to native title.
This continuing interest signifies a dimension of importance of the ALRC’s work and impact, even where specific recommendations may not yet have found their way into specific legislative action.
Health and genetics
By 2004 the ALRC had completed three large inquiries dealing with issues in the forefront of science: Human Tissue Transplants in 1977; Essentially Yours: The Protection of Human Genetic Information in Australia in 2003; and Genes and Ingenuity: Gene patenting and human health in 2004—which coincided with the completion of the sequencing of the human genome.
Commissioner Anne Rees said that so much of what was said in the ‘Essentially Yours’ report ‘was prescient and holds good today’. Indeed the report was cited just earlier this month in the High Court’s decision concerning the question of whether the BRCA1 gene sequence was patentable and the ALRC’s conclusions resonated with the Court’s analysis.
Issues of family violence are now being recognised as a national emergency. And responding to it is a subject on which the ALRC has made significant contributions, most recently in our 2010 and 2011 reports.
In the 2010 inquiry the ALRC was assisted by the appointment, as part-time Commissioner, of Victorian Magistrate, Anne Goldsbrough, and by the NSW Law Reform Commissioner Hilary Astor. The analysis and discussion in both reports, have contributed significantly to the current national conversation about family violence and ways to address it, particularly through law.
Privacy has been a recurring topic for the ALRC, with 5 reports produced in 4 decades: three during Michael Kirby’s Chairmanship, and then the 2008 report, led by Les McCrimmon, which remains one of the most accessed ALRC reports.
And last year the report on Serious Invasions of Privacy in the Digital Era, led by Barbara McDonald, tackled issues such as drones, surveillance devices and revenge porn.
Another highlight over the years is the ALRC’s international outreach.
The ALRC has historically played, and continues to play, an important educative role on the processes of law reform internationally, and in particular, within our region of South East Asia—like the hands-on training provided in PNG, led by David Weisbrot, and the visits by colleagues from Samoa and the Solomon islands. We have also hosted many visits at the ALRC, like those from Vietnam, Thailand, China and Nigeria, wanting to know about our processes and practices
The ALRC’s international engagement activity provides a significant contribution to regional goodwill.
The demand and interest from developing countries for peer-to-peer support for law reform bodies, has been consistent and significant.
Hosting ALRAC 2006
In 2006 the ALRC hosted the Australasian Law Reform Agencies Conference or ‘ALRAC’. 110 delegates from 25 countries considered issues as diverse as HIV/AIDS, changes in communications technology, the aspirations of ‘Gen Y’ and the international security environment.
The Keynote address by the Hon Michael Black, then Chief Justice of the Federal Court, was on the extraordinarily prescient topic of ‘Five approaches to reforming the law: 650 years of treason and sedition’, as the ALRC was then reviewing Commonwealth sedition laws.
You may note on each slide, taken from the timeline, links which take you to the wealth of material sitting behind each frame. Including, on this one, the speech of Black and one also by Ron Sackville.
What people remember
What is it that people remember about the ALRC and is work? Listening to the wonderful sound bites contributed by Commissioners and Executive Directors for the timeline, there are many common and recurring themes.
James Crawford and many others praise the ALRC’s ability to manage diverse stakeholder groups and to engage across the country. He provides a gorgeous cameo from the Customary Laws inquiry. It concerns Professor Alice Tay, of the University of Sydney:
Soigné was an understatement when it came to Alice. She was extremely well-groomed, and she came with me to conduct the women’s meetings in a remote part of the Northern Territory with a group of Pintabee under the roughest conditions imaginable … At the end of the day Alice, having conducted her meeting and gone lizard hunting with the women, was immaculate as ever, a remarkable achievement. I was dishevelled at the beginning of the day and must have looked unspeakable at the end of it.
Many remember the ALRC teams they worked with. ‘Esprit de corps’ is a constant in their reflections.
Elizabeth Evatt said: ‘I remember the people’ A highlight of her five-year period as President were the reports on Equality before the Law.
[Photograph, see timeline at 1993] Handwritten on the back of this photo is the caption, ‘the equality girls’. In her sound bite, Evatt says that this reference was ‘close to her heart’.
Others expressed great pride in their work: like Graeme Innes, of our recent work on Disability, Equality and Capacity in Commonwealth laws.
And after forty years we can confidently say that generations of law reformers have now been tutored in the ALRC way of doing things and share that pride in the work we have done.
Essence of law reform achievements
The flame of ideas
What then is the essence of law reform achievements? It clearly is much more than the fact of the 86 reports.
In 2008 Michael Kirby expressed the idea of the impact of ALRC work as ‘the flame of ideas’ kept alight by permanent law reform bodies and that
The flame of law reform affirms a central concept of the rule of law itself: legal renewal.
To fan the flame of ideas in the new millennium, we have embraced digital tools to keep us at the cutting edge of community engagement in participatory law reform. And we have often led the way:
We now have information about our processes in Easy English and in 21 different community languages, including Auslan.
We tweet—and now have over 10,000 twitter followers.
We blog. We crowdsource with wikis. We’re pioneers among Government agencies in using epubs. And this year we were selected as a finalist in the Excellence in eGovernment awards—not bad for a small agency!
For my own part, I feel privileged to lead such a wonderful, and enduring body. There are not many roles where you honestly can say that you love to come to work each day. This is in large measure due to the wonderful team I work with, the constantly energising interactions with people across the country, embracing so many sectors relevant for the subject of each inquiry, and also the enormously challenging, and deeply important and intellectually satisfying matters that each Attorney-General over the years has given us. Our current inquiry, on Freedoms, given to us by Attorney-General Brandis, is perhaps the widest ranging—and consequently the most challenging—we have done.
I have been the President since December 2009 and I look forward to adding my mille fleurs, to the ALRC’s continuing rich history.
Before I hand over to Mr Kirby to perform the last important element of the formal proceedings, to acknowledge the winner of the 40th anniversary student essay competition, I would like to pay a personal tribute to all ALRC staff. Tonight a particular debt of thanks is due especially to Tina O’Brien. Tina is Executive Assistant to me and ALRC Commissioners, and has assisted many of you here this evening in getting to and from ALRC meetings of various kinds, as well as arranging all the complexities of getting the ALRC teams to and from consultation meetings all around the country. Tina has also coordinated this evening’s events. Thank you Tina.
And now, Mr Kirby …
 Commonwealth of Australia, Australian Law Reform Commission, ALRC Annual Report 2014–2015, Report 128.
 Specifically, it has been visited by 85,831 unique users 194,804 times. Two chapters of the Customary Laws Report also have the highest ‘unique page views’: ‘Changing Policies Towards Aboriginal People’ (Customary Laws 1986 (128,435 upv); ‘Impacts of Settlement on Aboriginal People’ (Customary Laws 1986) (77,681 upv).
 ‘30 Years of Law Reform’.
 Earlier work: Child Welfare, ALRC 18, 1981; Domestic Violence, ALRC 30, 1986; Matrimonial Property, ALRC 39, 1987; Child Care for Kids, ALRC 70, 1994; For the Sake of the Kids: Complex Contact Cases and the Family Court, ALRC 73, 1995.
 Michael Kirby, ‘Law Reform – Past, Present and Future’, Address to the Alberta Law Reform Institute, Monday 2 June 2008, 29–30.
 See https://www.alrc.gov.au/law-reform-process.