President’s Overview

""It gives me great pleasure to present my first Annual Report as President of the Australian Law Reform Commission (ALRC). The past year has been one of significant change, but also one of great productivity and achievement, in fact one of the busiest for the ALRC in recent times. We have released two final Reports and a Consultation Paper; farewelled the ALRC’s longest serving President, Emeritus Professor David Weisbrot AM, and other long serving staff; welcomed a new team of highly professional legal officers; and embraced a raft of new online strategies to enhance the reach and immediacy of our work during the inquiry process.

I have come to the position of President via the legal academy, having been involved in university teaching and management since 1982, most recently as Professor and Dean of Law at Macquarie University (Nov 1999–Jan 2007), leading up to my appointment in February 2007 as Commissioner at the ALRC. My academic writing is principally in the fields of equity, trusts, property, inheritance and legal history, but my most important work has always had a law reform focus—using the lens of the past to provide understanding of the way law is and how it came to be, and to reflect lessons for the future. I loved my role as an academic and continue my academic writing when I can around the demands of the ALRC’s law reform work. I also retain my Chair in Law at Macquarie University, on leave during my appointment at the ALRC. But my present role as President of the ALRC draws upon all my skills and experiences—as teacher, facilitator, manager of a research team, leader of an organisation, writer and speaker—and with an extraordinarily talented team. I was deeply honoured to be appointed to the position in December 2009.

In October, the ALRC presented its final Report on Royal Commissions and related matters—Making Inquiries: A New Statutory Framework (Report 111, 2009), followed by the Final Report on Commonwealth Secrecy Laws—Secrecy Laws and Open Government in Australia (Report 112, 2009)—in November. The Royal Commissions Inquiry, overseen by Commissioner Professor Les McCrimmon, was completed in a nine month time frame; and the Secrecy Inquiry, which I oversaw as Commissioner, within 15 months. These are significant achievements for a small organisation—not many people realise that the ALRC has, on average, only 10 legal officers working on all our inquiries at any one time. Both Reports present significant law reform recommendations that go straight to the Government’s aspirations of more openness in government processes, increased access to justice and more cost-effective public inquiry and legal processes.

In July, the ALRC received Terms of Reference for an inquiry into Family Violence Laws, which has occupied the ALRC’s legal team fully for the last six months of this financial year. For this joint inquiry with the NSW Law Reform Commission (NSWLRC), the ALRC has worked with NSWLRC Commissioner, Emeritus Professor Hilary Astor, appointed in March, and a small team from the NSWLRC. In December, Victorian Magistrate Anne Goldsbrough was appointed as part-time ALRC Commissioner for the Family Violence Inquiry. This inquiry covers areas of family law, family violence, criminal law, sexual assault and child protection and has proved to be one of the largest and most significant in the ALRC’s recent history. The Inquiry’s Terms of Reference asked the Commissions to consider what improvements could be made to laws and legal processes to protect women and children from family violence. Such a process has required us to look at the interrelationship in practice of at least nine sets of criminal laws, eight sets of child protection laws, eight sets of family violence laws and the Family Law Act 1995, as well as evidence laws, sentencing laws and a range of other legal processes. The Time for Action report of the National Council to Reduce Violence Against Women and their Children, released in March 2009, was the impetus for this current Inquiry. It highlighted that 350,000 women experience physical violence and 125,000 women experience sexual violence each year in Australia. As well as the devastating human cost, this violence comes at an enormous economic cost, with research showing that, each year, violence against women costs the nation $13.6 billion. The importance of what this Inquiry is trying to achieve—a more integrated, seamless and accessible system of justice that will provide greater safety and protection to people dealing with family violence and sexual assault—makes it imperative that we get our proposals for reform right.

The Consultation Paper for the Family Violence Inquiry—Family Violence: Improving Legal Frameworks (Consultation Paper 1)—was released in April. Given the wideranging nature of the Terms of Reference, the Consultation Paper was a major publication, running to 1,018 pages. To facilitate stakeholder contributions in the restricted time frame for this inquiry, the Commissions released simultaneously a Consultation Paper Summary of 243 pages—another new initiative introduced this year. The production of the two documents acknowledges the different audiences to which law reform projects speak. The immediate audience is that of stakeholders and, ultimately, government, into whose hands the ALRC places the recommendations of our Reports. The other audience is that of the future—the enduring nature of law reform projects is such that the research and evidence base upon which proposals and recommendations sit must be fully explored and documented.

Consultation lies at the heart of the ALRC’s inquiry processes, and the level of consultation that has been achieved during the Family Violence Inquiry is a credit to the organisation and reflects its commitment to engaging the community in the law reform process. Commissioner Goldsbrough, Commissioner Astor and myself, together with legal teams from both Commissions, have spent many weeks travelling nationally undertaking consultations, including trips to Perth, Darwin, Alice Springs, Adelaide, Hobart, Melbourne, Canberra, Brisbane, Mackay and to regional NSW. Many consultations have also been held in Sydney. I would like to take this opportunity to thank the many individuals and organisations that met with the Commissions as part of this process and shared with us their thoughts, their experiences and their suggestions so generously. We would not be able to be as effective in the advice that we provide to government without the support,  experience and assistance of the many people we meet with as part of the consultation process.

As well, we rely on the considered and thought-provoking submissions that we receive—for the Family Violence Inquiry alone, the ALRC received 238 submissions—and I would like to thank everyone who has taken the time to consider our proposals in all our recent and current inquiries and to make a formal submission to the ALRC.

This year the ALRC has plunged into the world of Web 2.0 communications and has used this interactive technology to encourage greater two-way communication with the public and stakeholders through online forums and blogs. The ALRC was extremely fortunate to receive a grant from the Government’s Web 2.0 Taskforce to establish an online interactive forum as part of our consultation strategy in the Family Violence Inquiry. This allowed us to strike up a strategic conversation with women’s legal services around the country who are working at the legal coal face of family violence. This conversation was invaluable as we were formulating our proposals for the Consultation Paper and helped shape our thinking and analysis. It also provided an accessible way for people working in regional and remote communities to communicate with us directly and with the immediacy that this technology allows. Another first for the ALRC this year was the establishment of the ALRC’s Indigenous Advisory Committee (IAC), one of the key initiatives identified in the ALRC’s Reconciliation Action Plan launched in April 2009. The inaugural meeting of the IAC was in August 2009 and this esteemed group of Indigenous law practitioners, academics and community leaders will assist the ALRC to build stronger relationships with Indigenous communities and organisations, and to ensure that the concerns and perspectives of Indigenous people are more effectively integrated into the federal law reform process. The IAC was able to assist us in developing the Indigenous consultation strategy to inform our consultations for the current Family Violence Inquiry; to advise on future potential inquires; and to guide us in other initiatives including the establishment of an Indigenous internship program.

This year the ALRC farewelled two ALRC Commissioners and a number of staff whom I want to acknowledge and thank personally for their  professionalism and longstanding commitment to the ALRC. When Emeritus Professor David Weisbrot AM stepped down in November after more than ten years in office, he had presided over 14 inquiries including the ground breaking report, Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003); Fighting Words: A review of sedition laws in Australia (ALRC 104, 2006); and the ALRC’s largest and most complicated inquiry into privacy laws, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008).

At the same time we also farewelled Commissioner Professor Les McCrimmon who served at the ALRC for almost five years, leading the ALRC’s landmark Privacy Inquiry as well as the Inquiry into Evidence and most recently into Royal Commissions. Senior Legal Officer Ms Kate Connors left the ALRC after 8.5 years, Executive Assistant Ms Alayne Harland after 12 years, Communications Manager Michelle Hauschild, after 12.5 years and Research Manager Jonathan Dobinson after 9 years. These long serving, highly dedicated and talented people have left their mark on all the ALRC’s activities and have contributed significantly to the high quality of the ALRC’s work. We thank them for their dedication to the ALRC, and wish them all the very best for their futures.

Sadly, this year also saw the passing of one of the ALRC’s most respected Commissioners, Ian Davis. Ian was a Commissioner of the ALRC from 2000–2004, leading reviews of maritime insurance law, the use of federal civil and administrative penalties, and the protection of classified and security information. He joined the Queensland Law Reform Commission in 2008, where he was responsible for completing the jury directions review last year and leading the jury selection review. It was a great pleasure to share in the fun of debate at the Australasian Law Reform Agencies Conference in Vanuatu in September 2008, where he and I took the affirmative of the proposition: ‘That law reform bodies are the best vehicles for law reform’. His sudden passing was a terrible shock to all of us, and on behalf of the ALRC I extend my sincerest condolences to his partner, his family and his friends. He will be greatly missed. Senior Legal Officer Isabella Cosenza has provided a very moving tribute to Ian in this Report.

The coming year promises to be a very busy one again for the ALRC, as well as one of significant change. The ALRC has received Terms of Reference for a follow-on inquiry into the impact of Commonwealth laws on those experiencing family violence and Terms of Reference for an inquiry into Discovery of Documents in Federal Courts.

The ALRC received notice of a substantial budget reduction in the coming years—as did many other Government agencies—and this will necessitate a re-thinking of our inquiry processes to use our available resources in the best ways possible, to ensure that our ability to provide timely, straightforward and sound advice to Government is not compromised. The ALRC will streamline its operations, for example by producing one consultation document, not two, where we can, and further develop online resources and communication tools. One immediate consequence of the budget reduction is that the Attorney-General has not appointed any new full-time Commissioners, preferring instead to trial the appointment of inquiry-specific part-time Commissioners who are able to bring a particular expertise to the ALRC’s current inquiry work. The appointment of Magistrate Anne Goldsbrough to the Family Violence Inquiry was a result of this new approach.

The net result of these changes over the past year has been a considerable challenge to the ALRC to shift the way we undertake our work but at the same time maintaining its quality. In this context it is instructive to reflect upon the shifts in the ALRC structure over the years, responding, for example, to things such as differences in inquiry timetables, resources and available technology. A decade ago the ALRC released the landmark report, Managing Justice—A Review of the Federal Justice System (Report 89, 2000), the first completed under Emeritus Professor Weisbrot’s tenure as President (which commenced in June 1999). The Inquiry had been initiated on 29 November 1995, with amended Terms of Reference received on 2 September 1997. It was a massive law reform undertaking with many shifts in personnel over the five-year inquiry period. It involved, in summary, the President, a Deputy President, a full-time Commissioner, three part-time Commissioners, two team leaders, two legal specialists, at least five legal officers, a number of researchers, two project assistants, 35 legal interns, two information technology staff, one typesetter, three consultants, two library staff—in addition to advisory and working groups that fill up three pages of the Report. There were six Issues Papers and six Background Papers, together with a Discussion Paper, released during the Inquiry. The thoroughness of the undertaking and the quality of the work is demonstrated by the substantial implementation of the report in the ensuing years, as noted in each of the ALRC’s Annual Reports.

Going back a further decade we find, for example, the report, Censorship Procedure (Report 55, 1991). It had a twelve-month timeframe, commencing in May 1990, with the report due on 1 June 1991. The ALRC team at that time included a President, Deputy President, Commissioner, a Director of Research, one legal officer, one legislative drafter, two library staff, one project assistant and one typesetter. There
were also twelve consultants listed as well as nominees of state and territory governments. This is another report which has been substantially implemented. ALRC teams no longer include legislative drafters, nor three full-time Commissioners.

We have one excellent librarian, who also plays a key role in research support; and one extremely capable project assistant, who manages the two inquiries that we usually have going at any one time. Where reports have tighter timelines and/or the Terms of Reference are very wide, we have to approach the task differently from the undertaking reflected in the Managing Justice report. The emphasis has been on developing a strong team of legal officers, both junior and senior, under the supervision of a Commissioner and/or the President, supported by an Advisory Committee of leading experts in the fields of the inquiries, as well as part-time Commissioners. It is a much less ‘top heavy’ structure than in earlier years. For the second half of the period covered by this Annual Report, I have been overseeing, as President and Commissioner in charge, both the Family Violence Inquiry and the Discovery Inquiry. As we encounter the challenges of new references and new approaches we have also been building a strong relationship with the Attorney-General’s Department assisted by regular meetings and open lines of communication, while maintaining the independence that our constituting Act provides.

What is a continuing theme throughout the 35-year history of the ALRC is the enduring nature of law reform. Recommendations made may take many years to implement, but their eventual introduction into law vindicates the integrity and value of the process and the vision of the Attorneys-General who gave us the Terms of Reference and those who implement the recommendations. For example, many of the recommendations that the ALRC, together with the Administrative Review Council, made fifteen years ago in the report, Open Government: a review of the Freedom of Information Act 1982 (Cth) (Report 77, 1995), have now come to fruition in the introduction of major reforms to FOI in the period covered by this Annual Report, and as anticipated in the ALRC’s Annual Report 2008–2009.

Another strategic priority for the ALRC in the next years will be to give effect to changes to our governance and operating structure in preparation to move from a Commonwealth Authorities and Companies Act 1997 (CAC Act) body to one subject to the executive management model under the Financial Management and Accountability Act 1997 (FMA Act), as required by the Attorney-General. This transition will involve the ALRC becoming a statutory agency under the Public Service Act 1999 and will involve changes to the Australian Law Reform Commission Act 1996 (ALRC Act).

Despite the challenges we face, I am certain that the ALRC will continue to provide the Government with clear, high quality, and practical research and advice as to the development, reform and harmonisation of Australian laws and related processes. It is with great energy, commitment and dedication that I take up the role of President and I look forward to ensuring that the high quality work of the ALRC continues and that the high regard in which the ALRC is held both in the local and international law reform community is maintained and strengthened.

Professor Rosalind F Croucher