The law reform process

Building an evidence base

1.50 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.[82] 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.[83]

1.51 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 an established framework, outlined on the ALRC’s website.[84]

Community consultation

1.52 A multi-pronged strategy of seeking community comments was used. Two consultation documents were released to facilitate focused consultations in a staged way throughout the Inquiry. After an initial period of research and consultation, an Issues Paper was released on 1 May 2012, Grey Areas: Age Barriers to Work in Commonwealth Laws (ALRC IP 41, 2012). The Issues Paper set out the proposed framing principles for the Inquiry and raised a range of questions in relation to barriers to mature age workforce participation in each of the areas of law under review. On 2 October 2012, the ALRC released the Discussion Paper, Grey Areas: Age Barriers to Work in Commonwealth Laws (ALRC DP 78, 2012), accompanied by a Discussion Paper Summary, putting forward 36 proposals and 15 questions to assist the ALRC to develop its recommendations for reform.

1.53 Two national rounds of stakeholder consultation meetings, forums and roundtables were also conducted following the release of each of the consultation documents. In addition, the ALRC developed consultation strategies for engaging with Indigenous peoples, those from culturally and linguistically diverse backgrounds, people with disability and people who identify themselves as lesbian, gay, transgender or intersex.

1.54 The Terms of Reference for this Inquiry directed the ALRC to ‘identify and consult with relevant stakeholders including relevant Government departments and agencies, the Australian Human Rights Commission, the Consultative Forum on Mature Age Participation, and key non-government stakeholders and peak employer and employee bodies’. The individuals, Departments, agencies and the many bodies consulted in the Inquiry are included at the end of this Report.

1.55 The ALRC received 101 submissions, a full list of which is included at the end of this Report. Submissions were received from a wide range of people and agencies, including: bodies representing older Australians; individuals; academics; lawyers; unions; employer organisations; employment agencies; community legal centres; law societies and representative groups; state and federal government agencies; and peak bodies in the fields of recruitment, superannuation and insurance.

1.56 The ALRC acknowledges the contribution of all those who participated in the Inquiry consultation rounds and the considerable amount of work involved in preparing submissions. This can have a significant impact in organisations with limited resources. It is the invaluable work of participants that enriches the whole consultative process and the ALRC records its deep appreciation for this contribution.

Appointed experts

1.57 In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of Advisory Committees, panels, roundtables and the appointment by the Attorney-General of part-time Commissioners. The Advisory Committee for this Inquiry had eight members, listed at the end of this Report. Two meetings were held in Sydney on 9 August and 6 December 2012; the first to consider draft proposals and the second, draft recommendations for reform.

1.58 In this Inquiry the ALRC was able to call upon the expertise and experience of 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 particular aspects of the Discussion Paper and Report. They are included in the list of participants in this Inquiry.

1.59 While the ultimate responsibility in each inquiry remains with the Commissioners of the ALRC, the establishment of a panel of experts as an Advisory Committee, Panel or Roundtable and the enlisting of expert readers are invaluable aspects of ALRC inquiries—assisting in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform proposals. The ALRC acknowledges the considerable contribution made by the Advisory Committee and the expert readers in this Inquiry and expresses its gratitude to them for voluntarily providing their time and expertise.


1.60 Once tabled in the Australian Parliament, this Report becomes a public document.[85] ALRC reports are not self-executing documents. The ALRC is an advisory body and provides recommendations about the best way to proceed—but implementation is a matter for others. However, the ALRC has a strong track record of having its advice followed. The Annual Report 2011–2012 records that 59% of ALRC reports are substantially implemented and 30% are partially implemented, representing an overall implementation rate of 89%.[86]

[82] B Opeskin, ‘Measuring Success’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2005), 202.

[83]Australian Law Reform Commission Act 1996 (Cth) s 38.

[84] <> at 21 March 2013.

[85] The Attorney-General is required to table the report within 15 sitting days of receiving it: Australian Law Reform Commission Act 1996 (Cth) s 23.

[86] Australian Law Reform Commission, Annual Report 2011–2012 (ALRC Report 119), 30 and see Appendix F.