Your Country Needs You! The Value of Academic Research to Law Reform

Professor Rosalind Croucher, President, Australian Law Reform Commission, at Griffith University, Faculty of Law, Emerging Scholars Colloquium, 31 October 2012.

Introduction

Thank you very much for inviting me to speak today. Professor AJ Brown is very persuasive! But, as I am an academic through and through, it is always a pleasure to be back on campus, and in a law school, so I didn’t need much persuading! Sadly, though, I can only be here for the day, given the responsibilities I hold in my current role, as President of the Australian Law Reform Commission (ALRC). (My professorial title belongs to Macquarie University, which has kindly allowed me leave while I hold my government commission.)

Looking around the campus, with all its planting of native flora, it must look much as it did centuries ago. And as the head of a government agency, and in our commitment expressed in our Reconciliation Action Plan, I acknowledge the traditional custodians of this land, and pay my respect to elders past and present and welcome any Indigenous attendees today.

Professor Brown asked me to say anything that I thought fit about the importance of research for supporting quality law reform, and to encourage you to remember that submissions to public inquiries and other policy processes represent worthwhile outlets for your research. AJ also allowed me a little licence, namely to say anything I think useful and inspiring for a normal mixed bag of graduate research students (spoken in the kindest of ways). So let’s see how I go!

I thought in my brief presentation today I would focus on

• the process of writing
• the law reform process and you.

The process of writing

I am going to start with a quick quiz. (And a warning – a mixed metaphor alert. I am known for it, and prone to it, so apologies in advance!) Do you feel bogged down? Lost in a fog? Can’t see the forest for the trees? Well, I’ve got news for you: this is normal.

The process of research and writing, of the kind that all research students are engaged in, is akin to jousting with demons. There are other metaphors one might use—gazing at oceans, walking through mud. But they are about the same thing: how you work through a research process and end up with a finished product.

Here I will draw parallels between how we, at the ALRC, work through a law reform project, and academic research and writing more generally. I will also include what AJ specifically asked me to include, namely how you  can add value to law reform in a really meaningful, ‘impactful’ way.

Anyone involved in academic writing, whether in the university context or in government, must learn how to write. This can be (is) quite a painful process—and the first critical message is ‘practise, practise, practise’.

I learned my craft through researching and writing in the broad general area of history and property law. (And I am still learning!) My undergraduate thesis was an historical one; my doctoral research was in legal history, or more specifically testamentary freedom, as a story of conflicted and necessarily balanced ideas—the idea of family and that of property. The PhD took me ten years, around a full-time academic appointment and two children, among other things. I did a lot of jousting!

There are several important ingredients in successful writing—and a successful ‘output’ (and if you have difficulty at times remembering the difference between an ‘outcome’ and an ‘output’, just remember that an output is ‘something you can drop on your foot’). First, a conceptual framework. Second, a house style. Third, a rigorous editing process. I guess you would all be nodding your head about each of these.

Conceptual framework

Professor Bryan Horrigan, recently appointed Dean of Law of Monash University, compiled a wonderfully witty primer on legal research, called ‘Horror’s Hints’, that he wrote while at QUT, published in 2000. Hint #2, ‘Pardon Me, Your Conceptual Framework is Showing (And check in your intellectual baggage at the desk)’ correctly begins by stating:

All pieces of legal writing have an underlying conceptual framework, whether the person realises it or not. … So, whether you articulate it or not, your writing both reflects and is shaped by some underlying theories about the nature of law and legal argument, on one hand, and how your particular area of study works, on the other.^[1]

The conceptual framework of academic writing involves understanding, and interrogating, different theoretical perspectives, and anchoring the argument within an appropriately justified critical approach—what Horrigan referred to as ‘justification, justification, justification’;^{[2] and jousting with demons is part of this.}

Law reform writing, too, must ‘own’ a conceptual framework. We generally speak in terms of ‘principles’, but the idea is the same: that conclusions must be developed and tested against a conceptual framework which is explained, anchored in appropriate literature or research, and justified; and which is then used as the basis of evaluation of the ideas that eventually translate their way into recommendations for reform.

For example, the Classification inquiry identified eight guiding principles for reform, directed to providing an effective framework for the classification and regulation of media content in Australia:

1. Australians should be able to read, hear, see and participate in media of their choice;
2. communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;
3. children should be protected from material likely to harm or disturb them;
4. consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints;
5. the classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;
6. the classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;
7. classification regulation should be kept to the minimum needed to achieve a clear public purpose; and
8. classification regulation should be focused upon content rather than platform or means of delivery.^[3]

And the Age Barriers inquiry is using the following framing principles:

• participation;
• independence;
• self-agency;
• system stability;
• system coherence; and
• fairness.^[4]

House style

At the ALRC we do a lot of writing. Each inquiry generally produces two consultation documents, an Issues Paper and a Discussion Paper, and a final report. Each is written by a team. So we have not only the individual jousting but a collective joust in the challenges of joint-authored publications and maintaining the quality of the whole product.

Adopting a ‘house style’ is so much more than a citation guide, although of course it is essential to have one of those. The Australian Guide to Legal Citation, produced by Melbourne University Law Review, provides the basic rules for citing material in footnotes, but our Style Guide is much more comprehensive—where the delicately nuanced differences between an ‘en-dash’, and ‘em-dash’ and a hyphen are carefully explained, and so on. (Do you know when hyphens should be used in adjectival usage?)

Our ‘house style’ is evolving. Being reflective about style has parallels to thinking about conceptual frameworks. To paraphrase Horror’s Hint # 2, not only do all pieces of legal writing have an underlying conceptual framework, whether the person doing the writing realises or acknowledges it or not, all pieces of legal writing reflect a particular style. Media and journalism students learn about such things. Academic lawyers, perhaps not.

We challenge ourselves on style; and others do too. Let me give an example from the Budget hearings of the Senate Legal and Constitutional Affairs Legislation Committee on Wednesday 23 May 2012. Senator Brandis SC, the shadow Attorney-General, challenged me about the Privacy report—the report of a very large inquiry that concluded in 2008 in the large, three-volume report, For Your Information: Australian Privacy Law and Practice (2008). It was a landmark, comprehensive and impressive report. Senator Brandis commented however that, while the ALRC does ‘wonderful work of the very highest standard’, we were ‘overcapitalising’ that research.

The privacy report of a few years ago was nearly 2,700 pages long. I am not aware of anyone—academic, government body, think tank; any institution in the world—that has produced a 2,700-page document about privacy. Do you have a view, or would you entertain the view, that perhaps, if the commission, without diminution of the quality of its output, were to produce shorter and less discursive reports, it might actually be able to do more useful work because it could engage in a greater number of inquiries?^[5]

We then had a bit of an interchange about the report. I said that if the scope of the inquiry, as defined by the Terms of Reference, were large, the report was also likely to be large. I noted that the earlier Privacy report, overseen by Michael Kirby as Chairman, was also large—2,000 pages.^{[6] Conversely, if the scope were narrower, then the report itself may be shorter, because to answer the Terms of Reference may not need 3,000 pages.}

But I was also able to point to some changes in our style over the past three years.  What I was talking about was a reflective analysis of our writing—rather like we all do as teachers, and as academic writers.^{[7] For example, we have been focusing upon exactly 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 also seek to engage in the reform process itself by making submissions to our Issues Papers and Discussion Papers. And there is the audience of 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.^[8]

This is, as James says, a ‘logical architecture that mirrors the scientific method’^{[9] and is therefore often found in technical and scientific writing. It is also found in the academy—and certainly was the prevailing style in law reform writing. In such contexts it was built upon the proposition that the research itself, the evidence base, needed to be fully exposed and interrogated, as much as the conclusions themselves. Hence you might headings like the ones described by James: Background; Methods; Research; Findings; Conclusion; Recommendation. Headings in ALRC reports like ‘Introduction’, ‘Background’, ‘Submissions and consultations’, ‘ALRC views’ all mirrored this scientific style.[10]}

But the narrative style can suffer the awful appellation of being ‘boring’. Today’s readers do not want to be bored. Today’s readers need to be able to know the answers in a digestible form that they can remember. A basic rule in writing is that you are communicating. Your audience(s) need to want to listen, or read your message.

Concerns over not reaching our audience(c) have 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. It is an ongoing project.

James commends the idea of ‘telescoping’ as a more modern, user-friendly, way of writing: brining the ideas into view quickly (a double metaphor of seeing and collapsing the structure). It is, after all, all about communication. And 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.

Instead of structuring according to the research process, telescoping sequences your information in descending order of value, with the key material first, followed by the details. Readers can absorb the most important content, then decide how much subsidiary information they need. Each section of the document expands in the way that a telescope does from viewing lens to a magnifying lens.^[11]

This is, of course, the newspaper style of writing. There is no room for boredom here.

A standard news report has a lead paragraph that summarises the entire story, followed by the key facts of the story and their significance, and finally the supporting detail, including the background history, the quotes and the less significant facts. Newspapers know that few readers work through story after story from beginning to end. Telescoping lets them draw the information they need with maximum efficiency and interest.^[12]

What telescoping allows is reader choice. Readers can get the answer and then decide how much other information they need. So, we started to ask questions. Who was the audience? And was the audience the same for each document? Why did intermediate consultation documents need to be so long? Weren’t we, after all, speaking to those ‘in the know’—stakeholders who knew the subject area and wanted to ‘cut to the chase’ and know what ideas we wanted their opinions on. Why did we need to treat them as if we had to work through the subject from its ‘early years’ to the ‘present day’, so to speak. Just get to what we needed them to help us with—and quickly. The pressures on them were great, and growing. Cut them some slack.

So, we have been trying a few things.

The first step in changing style was to adopt the practice of producing a summary document to accompany each major installation of our inquiry progress. My object here was, quite simply, to meet complaints such as those reflected in Senator Brandis’s remarks as to the ‘size’ of the Privacy report. It meant that the message was being missed. The Privacy 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.

It was very obvious to me that something else was needed. The message was lost. History may well have judged us well, but if we lose our immediate audience we run the risk of being accused of irrelevance, unresponsiveness, inflexibility, and whatever other accusation that leads to a reduction in funding (‘overcapitalising the research’?).They have to satisfy one simple practical principle: that they will fit in a briefcase and be capable of being read on a 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 are likely to know anyway. They can respond online to as many, or as few, of the Questions and Proposals that they wish.

I was reassured in this approach when I went back to Michael Kirby’s collection of essays published in 1983, Reform the Law, which included his reflections on the ‘Australian style’ of law reform. He described the development of the ‘brief discussion paper’ as ‘aimed to secure the involvement of non-lawyers’:

Brevity is a discipline that does not always come easily to lawyers, including law reformers. The traditional working paper was often too long, too complex and too boring to secure the very aim in target, namely widespread consultation. For this reason, the Australian Law Reform Commission, and lately some of the State commissions in Australia, have produced, in addition to detailed papers, short discussion papers and pamphlet summaries of interim proposals. These state briefly the policy issues being posed for professional and public comment.^[13]

And where Kirby used cassette tapes to convey messages, the ALRC has adopted the use of their contemporary equivalent, ‘podcasts’.^{[14] The object is the same: effective communication and audience engagement. Kirby also recognised that ‘in promoting community debate and professional acceptance of the needs of reform’ the role of the ALRC ‘may be a more lasting and pervasive contribution to law reform in Australia than any particular project’.[15] In short, law reform inquiries have a far bigger role than the individual reports they produce.}

For the final reports the writing 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. The responsibility here, in a final report, is that the presentation of the law, in the particular slice that we are given in our Terms of Reference, is precise and anchored in excellent research.

As a legal historian, at heart, I need to feel confident that each of our reports is contributing to legal history. In my own research, I have drawn from the work of others in this domain. The great reports of the Real Property Commissioners from 1829–1830 were enormously helpful to me in my own doctoral research.^{[16] (As an aside I should mention that the catalyst towards institutional law reform work of this kind was the writings of Jeremy Bentham. As Sir William Holdsworth remarked, ‘Bentham was the first English lawyer to think out a comprehensive set of philosophical principles upon which reforms in the law ought to be made’.[17] Lord Chancellor Henry Brougham considered that ‘the age of law reform and the age of Jeremy Bentham are one and the same’.[18] He is, in many senses, the father of modern law reform.[19])}

Unlike a research degree, however, at the ALRC we do not have to present the results of a literature review in quite the same way. We do not have to prove, by footnoting, in a bibliography or otherwise, that we have read everything that has been written on a particular subject (although we usually do as part of thorough research). But we do need to be able to defend that we have provided an accurate summary of things as they are, referring to the research of others—and all their footnotes—without having to traverse every skerrick of the academic literature on our subjects ad nauseam. Our conclusions, and our exposition, have to be defensible before the court of history—and Parliament.

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, located within its particular social context at a given time.

What messages might these observations suggest about writing style for today’s audience?

First, there is great power in an abstract. It may be required by journals; but it is also a great thing to emulate as practice. Let your readers know, in a nutshell—the 100 words or so commonly allowed for an abstract—what it is that you want to say. We now use ‘Summary’ as our first heading. It does the job of an abstract. It is also an excellent discipline in writing. My colleague at Macquarie University, now Dean of the Law School, Professor Natalie Klein, was exhorted by her doctoral supervisor to write about her thesis as if she were writing three paragraphs to her ‘aunt’—a kind of generic embodiment of ‘everyman’, to make your message clear, and to ensure that you really were able to communicate your argument, your thesis, succinctly.

Second, use headings. I love headings. Not ones that are bland and boring, which convey nothing of their contents, but ones that lead you and entice you into reading. An example: in a section that might typically be headed ‘Background’, in the first chapter of the work we are doing on the Age Barriers inquiry, I opted for this: ‘The ageing population—a public policy challenge’. Question marks work a treat here—particularly in sub-headings. For example, in the chapter on superannuation, in the examination of the ‘transition to retirement rules’, we opted for: ‘Transition to Retirement rules: a workforce incentive?’ Questions lead you in. Headings that tell you something of their contents also have this effect. Not every heading is amenable to this style, but use it when you can.

Third, keep your sentences short. We can’t say that we’re doing this now, but we are working towards a tighter style: clear expression; shorter chapters; concrete expression. The result will be shorter reports. (If the sentences aren’t yet all following this rule, they are at least sub-divided reasonably well, and with appropriate punctuation). The central message is to communicate with your audience—and recognise that your audiences may differ for different writings.

Rigorous editing

‘Writing 101’ is learning about what to cut out—either altogether, or relegated to footnotes. Some of this is about learning when your argument or narrative needs significant pruning. Some of it is because of the exigencies of word-lengths or publishers’ demands. But the end result is the same: a shorter, tighter document with better structured arguments. In other words, ‘edit, edit, edit’. If I were to suggest a rule of thumb here, it would be that it takes, on average, three re-writes to get it right. And it applies to whatever it is you are writing: three goes to achieve a decent draft.

I remember well a seminal moment in writing my first big thesis—my history honours thesis. It was a biography of Sir Nicholas Throckmorton (1515–1571), a Renaissance diplomat. He served under several Tudor monarchs, was tried for treason twice—and got off both times. A remarkable fellow. There was a period in the story where a lot was happening, but it was somewhat peripheral to the narrative I was constructing as my thesis. This was the formula I devised: ‘Meanwhile in Scotland, Mary’s reign proceeded by calamities’, followed by a colon and a list of six events, each with a footnote.

At the ALRC we have a good process to achieve the relatively ‘seamless’ look of our co-authored reports. We are, of course, obsessed with expression, where some of the worst sins are mis-placed apostrophes (what Justice Roslyn Atkinson of the Supreme Court of Queensland describes as a ‘decorative apostrophe’). ‘Pam’ is our god—as in Pam Peters, the wise and noble author of The Cambridge Guide to Australian English Usage. (We have signed copies at the Commission!).

We buddy read. The Commissioner reviews everything—often over and over again. I read everything too.(When I mark up chapters for the legal officers I have chosen to use purple: not as aggressive as red, and not as censorious as blue, but a combination of both.) I have described our collective reading process as one of ‘smoothing’, like rough pebbles thrown into a running river, they get smoothed in the process of the tumbling current.

The process—and you

Academics play an absolutely crucial role in law reform—and in several ways. There is, of course, your writing. Academic books and journals are frequently cited throughout ALRC reports. They are a principal means for us quickly to get to grips 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. Academic writing is a crucial plank in our initial literature review of a new area.^[20]

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).^{[21] In addition we may enlist ‘expert readers’; and it is often academics we turn to to provide that assistance (as is the case in the Age Barriers inquiry). I should note here, in particular, and thank, Professor AJ Brown, a key contributor to our Secrecy inquiry,[22] and Zoe Rathus for her contributions similarly to the first of our Family Violence inquiries.[23]}

The third role is by making a submission. Submissions form an important part of the evidence base that informs the development of recommendations. Sadly, academic participation here is not particularly high. In fact it is disappointingly low. Why not get involved in this way? Submissions are cited and quoted throughout ALRC reports. And if your view is found persuasive or helpful in our thinking, then you are having real ‘impact’.

This is an important message and one that may be lost in the current climate about the ‘value’ of particular kinds of legal research. I have often heard of frustration about the way that law research is, or is not, ‘counted’ in the context of annual research reporting and in the Excellence in Research for Australia (ERA) processes. But this is altogether too narrow a focus—and one that neglects the fact that law is a professional discipline in an academic context, or vice versa, an academic discipline in aprofessional  context.

Now, let me take that back to you in your own career development. My advice is to remember that promotion is based not just on research but on a range of things, including your teaching and your community and professional engagement. In a professional discipline these are matters that you should take seriously. Writing refereed journal articles is essential in building your research profile, certainly, and they are also an excellent means of getting free feedback from experts in your areas of interest. But textbooks do have value, maybe not in the ‘research’ that is counted for ERA purposes, but they do advance your claim to excellence in teaching. And the same for writing in professional journals or mass media and in making submissions to public inquiries: they have value in advancing your claim in relation to community and professional engagement. You need to address all the criteria on such occasions and don’t neglect your responsibility in being part of a professional discipline.

So, keep your finger on the pulse of law reform. 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. This also expands your writing practice—and your audience.

For today’s audience, I wish to conclude by saying that effective and thoughtful law reform is dependent on involvement of people like you. Get involved—and help drive law reform!

And don’t worry about the demons. You will learn to be a good jouster. You will find that you can navigate across that ocean and feel proud of the journey. You will get yourself out of the mud and trudge through that marsh.

Enough!

Thanks, AJ, this was fun!