27.10.2015
It is an enormous privilege to present the ALRC’s Annual Report in this very significant year—2015 marks 40 years since the ALRC was established on 1 January 1975 under the chairmanship of the Hon Justice Michael Kirby AC CMG. In these four decades, the ALRC has produced 86 final reports, covering areas of law as diverse as privacy, native title, insolvency, evidence, gene patenting, sedition, royal commissions, child welfare, marine insurance, copyright, disability, secrecy and age discrimination, to name just a few of the many areas that have been the subject of our inquiries. When the ALRC was established, Michael Kirby wrote in the foreword of the ALRC’s first Annual Report, of the necessity for an organisation to be able to achieve “the systematic and consistent reform of the ‘seamless web’ of the law”, stating that the ALRC’s task is “the review, simplification and modernisation of those laws of this country which are within the competence of the Australian Parliament”. This task is still as relevant and necessary today as it remains crucial that federal laws are updated to reflect changes in Australian society and in community expectations—ensuring our laws are able to respond to current challenges and are flexible enough to cope with the future. Laws do change gradually through case law, but often the community demands that the law moves more quickly, and more assuredly.
A dedicated independent expert agency, such as the ALRC, that assists the Government to keep the laws relevant, accessible and fair, is needed now as much as it was 40 years ago.
A reflection on the role and importance of the ALRC has been included in the Special Features section of this Annual Report. Later in the year, the ALRC will mark this anniversary with the launch of an online interactive timeline that illustrates our history and showcases the eminent, talented and committed individuals who have contributed to the ALRC’s work over this time. It is indeed a formidable group. They reinforce, time and again, the importance of an independent law reform agency that can investigate an area of law free from political expectation or the values of particular interests, that is able to start a process with questions and not answers, and that draws on the wealth and diversity of experience and knowledge in the community to help inform the reform process. While law reform happens in many government departments, in other agencies and in the courts themselves, it is in the specialist law reform expertise of the ALRC—our intellectual capital in best practice law reform—that our value to the Government’s law reform agenda truly lies.
In reflecting on the work undertaken in this last year, I am again struck by the relevance and currency of the work that we do. At a time when the country is instituting one of the biggest reform agendas in recent times—the National Disability Insurance Scheme—the Report for the Disability Inquiry put forward a new paradigm for decision-making that provides a best practice model that acknowledges the will and preferences of people with disability as the foundation for making their own decisions. The recommendations in this Report provide the Commonwealth with a leadership role in re-framing supported decision-making and places Australia at the forefront of disability reform internationally.
The ALRC is uniquely experienced to undertake highly complex and contested reviews involving legal issues where there is a need to be—and to be seen to be—completely independent from government, industry and special interests. These reviews involve a need to consult widely with diverse and often opposing stakeholders, and to consider their opinions and interests carefully, so that the Government is provided with independent and frank advice. Through its widespread and thorough consultation strategies, the ALRC is able to build consensus and understanding of its proposals within the community and this assists the Government, in turn, to implement various recommendations, even in a context where change may be challenging. Our Native Title Inquiry is one such review and involved widespread community engagement with over 160 face-to-face consultations around the country, and 72 submissions received. Across the Inquiry, the ALRC had to consider reforms which would effectively recognise and protect native title rights and interests in accordance with the beneficial purposes of the Native Title Act, while having regard to the wide range of other interests in the native title system and the interaction of the Act with many other statutory frameworks. The ALRC’s consultation process was greatly strengthened by the willingness of Indigenous leaders, traditional owners and Indigenous organisations to offer insights into the native title claims process, informed by their experience in representing Aboriginal and Torres Strait Islander communities across Australia, and I want to formally thank the Indigenous community for their frank engagement with us. The ALRC also recognises the profound contribution made by judges of the High Court and Federal Court to the development of native title jurisprudence over the 20 years since the Native Title Act was enacted. I gratefully acknowledge the insights that were offered into the native title claims process by many current and former members of the Federal Court who generously gave of their time and expertise to the Inquiry. The ALRC also spoke with state and territory governments in great detail and met with representatives from industry, including the mining and minerals, fishing, farming, and pastoral industries and we greatly appreciate their substantial engagement in our processes. I also want to take this opportunity to thank Professor Lee Godden, Commissioner in charge of the Inquiry, for her dedication to this task, and for her thoughtful consideration of the many interests involved in the native title area and the important recommendations that were settled on. The Inquiry marks the first major review of the law governing ‘connection’ in native title claims since the introduction of the Native Title Act 20 years ago, and I was delighted that the Attorney-General chose to table our Native Title report in Reconciliation Week, on 4 June, the day following Mabo Day.
The ALRC has also been undertaking a wide ranging inquiry to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges and to determine whether any encroachment is appropriately justified. The Terms of Reference for this Inquiry ask us to consider at least 19 such rights, freedoms and privileges with specific attention to the areas of commercial and corporate regulation; environmental regulation; and workplace relations. Developing an appropriate methodology for approaching such a broad inquiry has been challenging, however the ALRC has risen to this task and following the release of an Issues Paper in December 2014, will release an Interim Report in July with a Final Report due at the end of 2015.
Many thanks must go to the members of our Advisory Committees whose generous contribution provides quality assurance and guidance as we grapple with the issues in each inquiry.
I would also like to take this opportunity formally to acknowledge and thank the many people from the legal profession, academia, industry, the non-government sector, government departments and agencies and from the community—our stakeholders—for their contribution to our inquiries, through consultations and by taking the time to give us their submissions. The quality of the work of the ALRC is a testament to this contribution and helps to ensure that our proposals are sensible and achievable, and that they strike the right balance between competing interests and perspectives to deliver realisable reform to the Australian community.
During this past year there has been further important implementation of our proposed reforms from several recent inquiries, including recommendations from our two Family Violence Inquiries, our Classification Inquiry and our Age Barriers Inquiry. A full report on implementation can be found at Appendix F.
During the year there were close to 80 mentions of ALRC reports in the judgments of federal, state and territory courts. Citations illustrate how, as well as assisting in the interpretation of legislative provisions that have resulted from ALRC reports, our reports are regularly used as authority for basic legal and policy propositions—that is, they provide judges with an invaluable starting point, which they recognise as having a respectable evidence base. I call this the ripple effect of our work. And it’s not just a ripple, as our reports have a longevity of life and impact. I had occasion at the launch of the Native Title Report, at the end of June, to note that the ALRC Report 31, The Recognition of Aboriginal Customary Laws which was published in 1986 after an almost nine year inquiry, is still the second most widely visited of our reports, after the 2008 Privacy Report, and has been visited by 85,831 unique users 194,804 times since our new website was launched in July 2010. Indeed, since then, the most visited single chapter of any publication on our website is from that Report—Chapter Three, ‘Aboriginal Societies: The Experience of Contact’. It’s been visited by 206,654 unique visitors 396,176 times. And in terms of people actually downloading the entire report as a PDF, The Recognition of Aboriginal Customary Laws is the 4th most downloaded—5,526 times. These figures only represent people who have visited or downloaded the report via the ALRC website—it does not include access via other websites such as AustLII. And similar results are achieved for many of our older reports, including the benchmark 2008 Privacy Report and the ground-breaking 2004 Genes and Gene Patenting Report. These reports, and the careful analysis and thinking that inform them, provide a valuable resource for many years.
I would finally like to thank the staff of the ALRC, a highly productive and hardworking team, who have continued to work tirelessly to meet our strict deadlines while maintaining the high quality analysis and argument that is a hallmark of ALRC consultation papers and reports. I especially wanted to acknowledge the Native Title legal team for the thoughtful and incisive work they produced during that Inquiry, and our part-time Commissioners, the Hon Justice Nye Perram and the Hon Justice John Middleton for their continuing contributions to the ALRC.
In the year ahead, the ALRC will provide the Final Report for the Freedoms Inquiry. As the ALRC is only able to work on such inquiries as are referred to us by the Attorney-General and the timeframe to complete its reports is stipulated in the Terms of Reference, what the next year holds for the ALRC is therefore in the hands of the Government. Whatever that work may be, the ALRC will continue to deliver high quality best practice law reform that results in realistic and achievable recommendations to the Parliament of Australia.