Senate Committee inquiry into the ALRC

On 11 February 2011, the Legal and Constitutional Affairs Committee held a public hearing for its inquiry into the ALRC.

The Inquiry, which had been referred to the Committee on 23 November 2010, was called for largely to investigate the impact of heavy cuts to the ALRC budget over the last few years, and whether these cuts are “putting serious law reform at risk in this country” (Senator Barnett, Chair of the Senate Committee, 23 Nov 10).

The Inquiry is considering:

1. the ALRC’s role, governance arrangements and statutory responsibilities; 
2. the adequacy of ALRC staffing and resources to meet its objectives; 
3. best practice examples of like organisations interstate and overseas; 
4. the appropriate allocation of functions between the ALRC and other statutory agencies; and 
5. other related matters.

Submissions received by the Committee are published on its website.

The ALRC’s submissions are also published on this website.

At the public hearing on 11 February, the attending Senators Barnett, Crossin and Trood heard from the Federal Court of Australia, Civil Liberties Australia, the Public Interest Advocacy Centre, the Rule of Law Institute of Australia, the Federation of Community Legal Centres Victoria, Victorian Women Lawyers, the Public Interest Law Clearing House, the Attorney-General’s Department and, of course, the ALRC. Download a transcript of the hearing or read the President’s opening statement, below.

On 3 March the Committee heard from two further witnesses, Emeritus Professor David Weisbrot, past President of the ALRC, and the Hon Justice Grant Hammond, President of the New Zealand Law Reform Commission.

The reporting date is 31 March 2011.

Opening statement by Professor Rosalind Croucher, President ALRC at the public hearing on 11 February 2011

Chair, Senator Barnett, Senators.

In this opening presentation I am going to take it as given that the ALRC has a high reputation for producing high quality, well researched and well documented reports.

The vast majority of submissions, including that of the AGD and the Attorney-General, the Hon Robert McClelland MP in an article in today’s Australian Financial Review, restate the importance of an independent law reform body, with appropriate levels of funding that will continue to produce the high quality work that has characterised the ALRC for the past 35 years. (I note that this was also the main conclusion of the 1994 review of the ALRC).

Many submissions also note the very high implementation of ALRC recommendations—proof of both the relevancy of the ALRC’s proposals, and the effectiveness of the processes by which it comes to these proposals. The value of the ALRC’s research has also been noted in several submissions from academics and from the judiciary, in particular the Federal Court, who speak of the high value provided by the evidence base of the ALRC’s research and the enduring nature of the law reform reports that we produce.

I will take it as a ‘given’ that what we have done, has been done extraordinarily well.

The issue on one level is can we continue to do so, or more particularly what do we need to ensure our ability to do so into the future – to the benefit of government, to the courts, to the legal profession and to the broader community, both nationally and internationally.

The key point I would like to make is that the intellectual capital of a standing law reform commission requires a core complement of Commissioners and staff. The maintenance of that intellectual capital also generates an enormous efficiency, where the ALRC is expert at the process of law reform, and, with its reputation and the standing of its Commissioners, able to leverage enormous expertise and contributions—all honorary/pro bono—informing the work and development of recommendations for reform.

So, here’s the ‘rub’—what exactly is adequate resourcing of the ALRC? In our Background Submission we commented that ‘The idea of adequacy is a complex one, linked to desired outcomes and purposes. … The ALRC considers that the baseline for any consideration of adequacy is the production of high quality, well researched and well documented reports and the necessary staff and time to produce them.’ Today let me add that to maintain the intellectual capital in law reform is also fundamental.

We have already had to prune significantly our important educational outreach program to concentrate on our inquiry work. What really is at issue here is whether or not the ALRC’s current appropriation is adequate to allow the high quality internationally recognised best practice work that we do to continue. 

I wish to put on record that I appreciate the Attorney-General’s personal commitment to the ALRC, as evidenced for example in his launch, with the NSW Attorney General, of the Family Violence Report on 11 November last year. His article in the AFR today also testified to that commitment. I also wish to acknowledge the Attorney-General’s Department’s participation in regular information exchanges—we have gone a long way here to build respect and understanding.

But with respect to the question of whether our current appropriation is adequate, I have to say ‘no’. I kept thinking of an analogy to describe the impact of the budget cuts — described by some as ‘savings’— and the image that kept returning was that of the Black Knight in the film, Monty Python and the Holy Grail. After he lost one arm defending his turf he said ‘Tis but a scratch!’; after the other one was lopped off, ‘Just a flesh wound!’. After both his legs were also chopped off he still managed to say, defiantly, ‘The Black Knight Always triumphs!’.  Ridiculous, but fitting.  The reduction in budget to the ALRC makes us feel like that poor knight.

The ALRC, like the knight, cannot ‘triumph’—run on reputation— forever.

What then are the essential aspects of resourcing? The two issues I will focus on are:

• the need for a Commission that actually includes Commissioners of both a full time, as well as part time capacity; and
• the core complement of staff required to preserve the intellectual capital of the ALRC and to continue to deliver high quality, well researched and well documented reports.

Commissioners

The ALRC understands completely the current budget restraints, the government’s commitment to realise a budget surplus by 2012/13 and the increased pressure on this goal caused by recent events around the country. However the cuts to the ALRC, and the way they were introduced have meant that at present the ALRC is not able to afford the appointment of a second Commissioner, let alone the two Commissioners to lead the expected—and efficient—pattern of two inquiries at a time, and to provide the integrity of decision making by the Commissioners in making recommendations of each inquiry. Being able to afford Commissioners within our reduced appropriation has been set as the condition for their appointment.

And here I am not talking about part-time Commissioners, but full-time Commissioners, preferably appointed as standing, fixed-term Commissioners.

Let me explain:

The Background Submission makes quite clear the difference between part-time Commissioners and full-time Commissioners. The contribution of part-time Commissioners, while essential to the overall quality and reputation of the ALRC’s work and ability to leverage further community input, does not go to the production of the reports and the consultation processes that underpin them. Part-time Commissioners play an invaluable advisory role—but it is only that, or rarely more so. I am not suggesting that we do not need them—we do—they are invaluable and we appreciate their contribution enormously—but they are no substitute for full-time Commissioners nor for the legal officers who undertake the bulk of the research and writing and conduct the consultations.

What about more limited appointments, of experts for example, brought in for specific inquiries? This sounds attractive—and can work extremely well—but there are significant caveats that need to be noted.

First, there needs to be sufficient lead time in planning an inquiry to be able to identify the area of expertise needed, find someone of sufficient standing who may be available for the inquiry and with sufficient flexibility with respect to start and end dates to be able to direct an inquiry from start to finish, and, if necessary, to move to Sydney.  If the appointment is to be advertised, a further period of time needs to be factored in—of at least 3–6 months.

Second, if it’s just about expertise, then the ALRC has an established and tried and tested way of bringing in the expertise needed for each inquiry—through our advisory committees and consultative processes – through which we leverage a considerable pro bono contribution to our work.  This moderates any particular ‘barrow’ a subject specific person might bring to lead an inquiry.  And subject specific people have to be trained up in the law reform process, which usually takes a whole reference cycle, by which time their expertise has run out, so to speak.  What standing full-time commissioners give us is the intellectual capital in law reform and clear independence in our task.

The core complement of staff

The ability to attract, retain and nurture a core complement of staff is critical for the maintenance of the intellectual capital of the organisation.

I draw upon my own experience as a Commissioner at the ALRC for the past four years and have overseen, as Commissioner in charge,7 inquiries during that time:  Client Legal Privilege, FOI (until it was withdrawn), Secrecy, FOI (Private) (that was proposed but never eventuated), Family Violence, Commonwealth laws and family violence, and Discovery. Based on this experience, coupled with an analysis of our previous resourcing and staff complements as summarised in part in our background submission, I will indicate what an appropriate core complement of staff should be. Any additional work or demands for a particular inquiry on top of this should be negotiated to provide additional resourcing to achieve the particular goals of such inquiries.

The core:

One Commissioner per Inquiry, 8–10 legal officers at different classification levels—the number allocated to each depends on the complexity of the inquiry. I note that this model is remarkably similar to that identified in the 1994 report.

There should also be retained the ability of the President to appoint fixed term appointments of legal staff should the nature and complexity of one particular inquiry require either additional legal researchers or the employment of people with specific expertise.

In addition, as explained in our background submission, an Inquiry team needs more than solely legal officers. We need people to facilitate the administration of the inquiry, to coordinate the publishing process, to manage the web interface and the research needs. Therefore the Commission also needs an inquiry support team as an integral part of the Inquiry process.

Our team right now is the barest it has been.

We are now at the point of viability—like the Black Knight. (Saying ‘I will bite your legs off’—his final retort—doesn’t take you far on the road to law reform.)

What do we need?

We need the cuts restored. We cannot offer positions in any way comparable to levels in the AGD, for example. Many submissions have noted that the ALRC’s appropriation has remained relatively static, while costs such as staff wages and rents have increased annually by 4%, and other expenses have increased as per the CPI. This in effect means that the ALRC’s budget has decreased in real terms. The ability of the ALRC to continue to employ the high calibre of legal officers to the complement described is also a resourcing issue. So we are not just talking numbers of staff, but also the need to ensure we can offer competitive salaries.

To be able to respond and deliver recommendations in the government’s contemporary law reform agenda it is essential that we are able to maintain a complement of highly qualified and experienced commissioners and legal researchers who are always ready to pick up and run with an inquiry. This ability comes with experience, people who know the processes of law reform, who have skills in using these processes and in analysing laws and their effects, and who can then develop law reform proposals that will deliver a principled policy outcome. Constantly engaging new people in the process means having to train them up in these processes and that in itself takes time—it is also vastly inefficient. This is true of both legal staff and Commissioners. Maintaining a long term complement of staff is a minimum resourcing requirement for best practice, responsive law reform, saving time and therefore, dollars in the longer term.

Concluding comments

As the Attorney-General noted in his comment today in the AFR, independent advice from the ALRC will remain critical in helping the government achieve its reform objectives.

Bravo!

 But more is needed—to preserve and foster the investment of governments since 1975 in the intellectual capital of an independent law reform body that is the ALRC—to retain the ability to add value not only to the government’s law reform agenda but to community understanding and participation and to international goodwill.

‘Tis but a scratch’? I don’t think so. From a relatively small base we can achieve much, but law reform of the calibre that is expected cannot just be carried out ‘in a phone box’, to quote a previous comment in this place, unless that phone box, to use an acronym, is a TARDIS. But that is stretching the analogies too far.

Thank you, Senators. I look forward to your questions.