Developing the law reform response

Defining the brief

The ALRC’s work is defined by Terms of Reference from the Commonwealth Attorney-General. They provide the constraint within which any law reform project undertaken by the ALRC must operate, in addition to the direction given under the ALRC’s constituting legislation, the Australian Law Reform Commission Act 1996 (Cth). In this Inquiry the focus was on ‘limitations or barriers’ to participation in ‘the workforce or other productive work’. The ALRC was asked to identify ‘what, if any, changes could be made to relevant Commonwealth legislation and legal frameworks to remove such barriers’. A number of issues arose in defining the brief.

First, the ALRC took a wide approach to the idea of ‘limitations or barriers’. And in responding to the question of what changes could be made to remove them, the ALRC developed a set of framing principles that provided the lens for the consideration of any reform recommendations to be made.

Secondly, the Terms of Reference defined ‘older persons’ as anyone over the age of 45 years, which is consistent with the definition of ‘mature age worker’ used by the Australian Bureau of Statistics (ABS). The age cohort therefore comprised a very wide group, with varying capacities and needs stretching over several decades—raising particular challenges for the development of policy responses in this Inquiry.

Thirdly, the Terms of Reference recognised that ‘work’ is a wider concept than work in the labour market as paid work, through its inclusion of ‘other productive work’, which includes volunteer work and caring. There is a tension, however, between the concepts of ‘work’ and ‘other productive work’, where other productive work may itself act as a barrier to paid work—particularly with respect to unpaid care work. To resolve this tension, the ALRC focused on developing reform recommendations to enhance the capacity to combine paid work and caring—recognising the value of that care but also looking to enable paid workforce attachment and participation.

Fourthly, having to consider ‘legal frameworks’ in addition to laws meant that the Inquiry concerned more than just specific legislative provisions. It required consideration of things like policy and practice guides, codes of conduct, education and training about legal rights and responsibilities, and other related matters.

The law reform process

Commitment to widespread consultation is a hallmark of best practice law reform. In Law reform recommendations cannot be based upon assertion or assumption and need to be anchored in an appropriate evidence base. A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.^[6] Under the provisions of the Australian Law Reform Commission Act 1996 (Cth), 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.^[7]

The process for each law reform project may differ according to the scope of the inquiry, the range of key stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry. For each inquiry the ALRC determines a consultation strategy in response to its particular subject matter and likely stakeholder interest groups. The nature and extent of this engagement is normally determined by the subject matter of the reference—and the timeframe in which the inquiry must be completed under the Terms of Reference. While the exact procedure is tailored to suit each inquiry, the ALRC usually works within a particular framework, outlined on the ALRC’s website.^[8]

In this Inquiry two national rounds of stakeholder consultation meetings, forums and roundtables were conducted following the release of each of the consultation documents—the Issues Paper and the Discussion Paper. The ALRC also received 101 submissions from a wide range of participants.

The ALRC was assisted in this Inquiry by an Advisory Committee and two part-time Commissioners: the Hon Justice Berna Collier of the Federal Court, a standing part-time Commissioner of the ALRC; and the Hon Susan Ryan AO, Age Discrimination Commissioner, who was appointed specifically to assist the ALRC in this Inquiry. The ALRC was also assisted by a number of people as expert readers who commented on specific aspects of the Discussion Paper and Report.

Report structure

This Report is divided into eight chapters. The first two chapters introduce the Inquiry, describe the reform process and set out relevant conceptual and contextual issues. Chapter 3 concerns the keystone recommendation of a National Mature Age Workforce Participation Plan, to provide a coordinated policy response to addressing barriers to the participation of mature age persons in the Australian labour market. The ALRC suggests that the Advisory Panel on Positive Ageing, or a similar body, lead the development of this plan.

This is followed by five chapters focusing upon the specific areas identified in the Terms of Reference, as follows:

• Recruitment and Employment—Chapter 4

• Work Health Safety and Workers’ Compensation—Chapter 5

• Insurance—Chapter 6

• Social Security—Chapter 7

• Superannuation—Chapter 8

Framing principles

The Recommendations for reform were developed in the light of six interlinking principles: participation, independence, self-agency, system stability, system coherence, and fairness:

• Participation—all Australians should feel valued and have the opportunity to participate fully in the life of our society. This reflects the Australian Government’s ‘Social Inclusion Agenda’.^[9]

• Independence—older persons should have the ability to make choices about the form of participation they wish to make, including the capacity to determine when and at what pace withdrawal from paid employment takes place.^[10] It also involves the ability to make genuine choices between participation in paid work, unpaid work, or some combination of both.

• Self-agency—an individual should have the right to make decisions about matters affecting him or her. The principle of self-agency is one that underpins the idea of ‘independence’ and of ‘participation’. Like the principle of independence, self-agency also encompasses choice and the importance of being treated with dignity and respect, as reflected in the National Statement on Social Inclusion.^[11]

• System stability—laws and systems that are complex should remain stable and predictable. This is particularly relevant in areas such as superannuation. The Super System Review Panel emphasised that, because superannuation is a large and complex system, with ‘an increasingly important social and macroeconomic dimension’, rule changes ‘should be made sparingly and in a way that engenders member confidence’.^[12] Other related principles are ‘coherence’ and ‘fairness’, which may be seen as aspects of a stable system, but also go further. They concern how the system operates in terms of impact on those affected and more broadly within the Australian community.

• System coherence—systems should be consistent, simple and transparent for individuals. This was a priority identified by the review of Australia’s tax system, chaired by Dr Ken Henry AC, in its review of the retirement income system.^[13] Complexity may cause disengagement in paid work. Lack of accessible information is another aspect of system coherence and an element of complexity, leading to poor understanding of rules and entitlements.

• Fairness—national resources should be distributed fairly and responsibility should be balanced between individuals and government. Fairness can be a consequence of coherence, consistency and the stability of the relevant systems involved. A further aspect is fairness between generations—that is, ‘intergenerational equity’. Issues important to intergenerational equity include the management of public debt and the funding of pension schemes. Fairness also encompasses ensuring basic rights and freedoms are enjoyed by older persons, and that there exists equality of opportunity in participation in paid and other productive work.

These reform principles guided the development of the targeted set of recommendations addressing the Terms of Reference in this Report.