The ALRC typically has two inquiries in progress at any one time and, with staggered timetables, completes 1–2 inquiries in a year. The process for each inquiry may differ according to the scope of inquiry, the range of stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry by the Attorney-General. While the exact procedure needs to be tailored to suit each inquiry, the ALRC usually works to a process that has been tested over 35 years of law reform.
Terms of Reference
The Australian Government identifies an area of Commonwealth law that needs to be updated, improved or developed for various reasons including:
- there is community concern about a particular issue that needs to be addressed through the process of law reform;
- recent events or legal cases have highlighted a deficiency with the law;
- scientific or technological developments have made it necessary to update the law or create new laws.
The Attorney-General may then refer an inquiry (also known as a reference) to the ALRC into the area of law needing reform. This written request is called the ‘Terms of Reference’ (TOR). The TOR set out the subject matter of an inquiry, provide background to the referral and will often ask the ALRC to consult with various stakeholders. The TOR always stipulate when the ALRC must provide its report to the Attorney-General. The first stage of any inquiry involves the ALRC examining the TOR and scoping the inquiry—determining what falls inside and outside the TOR.
The ALRC conducts many consultations around the country with inquiry stakeholders including: government departments, judges and magistrates, other legal professionals, industry groups, non government organisations, special interest groups, academics and other members of the community. Essentially, the ALRC seeks to consult with people who have expertise and experience in the laws under review, as well as people likely to be affected by the laws in question.
Once an inquiry is underway, the ALRC usually forms an advisory committee or panel of experts. Members of these committees are selected because of the expertise of each committee member in a particular area relevant to the area of law under review. An advisory committee will not necessarily include representatives from each stakeholder group, as these may be consulted separately. The advisory committee has particular value in helping the ALRC to identify the key issues, as well as in providing quality assurance in the research and consultation processes. Advisory committees usually meet at least twice during an inquiry, before the publication of a consultation document and report.
The number of consultation documents produced during an inquiry varies according to the needs of the inquiry and its timeframe, but usually consists of an issues paper and a discussion paper. Sometimes, if the timeframe is quite short, the ALRC will only produce one consultation document and then the report.
An issues paper is usually the first official publication of an inquiry. It provides a preliminary look at issues surrounding the inquiry and often suggests principles which could guide proposals for reform. It poses questions regarding the subject area and seeks advice from the community about the issues that need to be considered as the inquiry progresses, as well as informing the community about the range of issues already identified. The issues paper invites feedback in the form of submissions.
The ALRC makes a formal call for submissions whenever it releases an issues paper or discussion paper. Through the submissions it receives, the ALRC can gauge what people think about current laws, how they should be changed and can test its proposals for reform with stakeholders prior to finalising them. Submissions can contain comments on matters raised in an issues or discussion paper, or might discuss anything relevant to the topic under review.
Naturally there are many different views advanced through submissions, and the evaluation of submissions is not like a ballot. The ALRC considers the opinions and arguments expressed in submissions together with other forms of consultation and in-depth research. When writing a report, the ALRC selects quotes from submissions that are expressive of different views and which illustrate the scope of stakeholder perspectives.
The ALRC publishes public submissions on its website as soon as practicable.
Discussion papers are typically much more detailed documents than issues papers. They provide a detailed account of ALRC research, including a summary of the various consultations and submissions undertaken and received, and set out draft proposals for reform. Following the release of a discussion paper the ALRC will call for further submissions and undertake additional consultation.
Recommendations in the report describe the key reforms that the ALRC considers should be made either to laws or legal processes. In formulating recommendations, the ALRC draws not only on submissions, but also on its face to face consultations, academic and industry research, international research and models, and its considerable experience in law reform.
During the process of formulating recommendations, the ALRC has regard to any policy aims expressed in the Terms of Reference and the principles for reform identified for each particular inquiry. The ALRC is also directed by its Act, the Australian Law Reform Commission Act 1996, to ensure its recommendations remove defects in the law, simplify the law, update it and provide improved access to justice, amongst other things. Coming to a final recommendation is, therefore, a process where many different inputs are balanced to achieve desirable policy outcomes.
Each inquiry culminates in a report that makes specific recommendations for changes to the law or legal processes. It also describes in detail the ALRC’s research and explains how the ALRC has arrived at its recommendations for reform, the evidence base for the recommendations.
The Attorney-General is required to table the report in Parliament within 15 sitting days of receiving it, after which it can be made available to the public.
The Australian Government decides whether to implement the recommendations, in whole or in part. There is no set timeframe in which the Government is required to respond, and some reports are implemented several years after they have been completed. Implementation of ALRC recommendations is tracked and recorded each year in the ALRC Annual Report. See Appendix G.