40 years of law reform—is the flame still burning?*

* This article draws from earlier articles that appeared in the ALRC’s Annual Reports of 1975, 1999–2000, and 2004–05 and the 2015 Michael Kirby lecture by Professor Rosalind Croucher AM.

Institutional anniversaries, particularly those where significant longevity is involved, provide a time to reflect on the legacy of an organisation and to interrogate its ongoing role and significance and its ability to meet future challenges. Is the objective for which it was created still relevant or have time and circumstances changed, bringing into question whether it is still fit for purpose? Over the past 40 years, the Australian Law Reform Commission (ALRC) has been the subject of a number of reviews that have tested its role. All these reviews have reinforced the importance of the ALRC and the need for it to continue in its present independent form. At the conclusion of the most recent of these inquiries by the Senate Standing Committee on Legal and Constitutional Affairs Reference Committee in 2011, the Committee concluded that the original purpose of the ALRC is still relevant and important today and that there was strong support for an independent and well resourced law reform commission in Australia. At the same time, the Government of the day stated:

Since its establishment in 1973, the ALRC has concluded more than 100 inquiries and has made a substantial contribution to the public debate on issues as diverse as privacy, personal insolvency, the use of genetic information, admiralty law and the operation of the federal justice system. As it approaches forty years at the forefront of law reform in this country, the Government believes the ALRC is well equipped to respond to new challenges and opportunities.^[1]

Law reform agencies such as the ALRC are not, the only bodies responsible for developing and advising governments on policy. For example government departments, parliamentary committees, joint ministerial councils, other statutory agencies, private consultants, academics and others all make vital contributions. However, a number of features of the ALRC distinguish it from other agencies and demonstrate why it is a crucial contributor to the health and growth of Australian law. These features answer the question, after 40 years, why are law reform commissions still needed—they include the ALRC’s:

• independence (from Government, party politics, academic interests, special interest groups and other stakeholders);
• broad generalist legal expertise;
• authority and capacity to leverage relationships with key stakeholders;
• distinguished consultative and research strategies;
• dedicated experience in best practice law reform processes;
• engagement with the international legal community;
• contribution to regional developments in law reform;
• role in educating and engaging the Australian community in law reform; and
• contribution to other government inquiries and reports.

The ALRC was effectively established on 1 January 1975 by an act of Parliament, the Australian Law Reform Commission Act 1975 (Cth). This Act had been two years in the making, with Senator Lionel Murphy, then federal Attorney-General, introducing into Parliament the Law Reform Commission Bill on 23 October 1973. The purpose of the Bill was, he said:

… to establish a Law Reform Commission, to enable the task of law reform in Australia to be tackled on a national scale. The Government is concerned to see that the system of law under which people live is responsive to the social needs of our time. The rules which govern the relationship of persons with each other and with the Government should reflect current values and philosophies. This concern is reflected in the importance the Government attaches to law reform.^[2]

The Law Reform Commission’s statutory functions included, and still include, an obligation to consider proposals for uniformity between laws of the territories and laws of the states. Senator Murphy elaborated on this intention in his second reading speech:

The Bill is also an expression of the Government’s view that except where local circumstances justify different treatment, people wherever they live in Australia, should be subject to the same law … The Standing Committee of Attorneys-General has not been conspicuous for its success in promoting law reform on a uniform basis. While it is a very useful instrument for exchanging views between law ministers, it is clearly not equipped to deal with law reform on a comprehensive and uniform basis. This cannot be achieved unless an expert body, working full time on the task and removed from the pressures of day to day politics, is established for this purpose.^[3]

Law reform was on the agenda of many common law countries in the 1960s. Internationally there was a global recognition of the difficulties associated with the proliferation of laws and the complex problems of adjusting the law to adapt to rapid social changes. The Law Commission of England and Wales was established in 1965 and this encouraged the establishment of law reform bodies throughout the Commonwealth, including in New South Wales (1966), Queensland (1969), the Australian Capital Territory (1971), Western Australia (1972), Victoria (1973), and Tasmania (1974).

The establishment of the ALRC had bi-partisan support at its foundation, something which is still evident today. Justice Michael Kirby was appointed as the Commission’s first Chairman and his vision and approach to law reform set the ALRC’s foundations and modus operandi—still as relevant today as it was then. Justice Kirby believed that all Australians should be able to participate in the law reform process. He instituted a variety of research methodologies to encourage community consultation and input into the law reform process. Broad consultation strategies are still the hallmark of the ALRC’s best practice law reform.

Since that time the ALRC has had eight Chairs, now referred to as Presidents, has produced 86 law reform reports and has been the subject of five inquiries that have looked into the role and functions of an independent law reform body. Each of these inquiries has reaffirmed the value of a specialist independent law reform body.

As at June 2015, 86% of recommendations had been wholly or partially implemented, an outstanding measure of the quality and relevance of the ALRC’s work. However, it is not solely the implementation of many of its recommendations in which its value lies. The impact of law reform often extends further afield than the legislation it is directed at, into the legal frameworks and administrative guidelines and procedures that sit alongside and interact with the common law. As ALRC President, Professor Rosalind Croucher AM has stated:

My personal conviction, after nearly nine years at the ALRC, is that an assessment of the contribution that law reform work makes must be seen through another lens. It is like a pebble in a pond. There are ripples that run over the surface of the pond—the extending, echoing impact, long after the pebble has disappeared beneath the surface of the water. The ripples are multiple and overlapping. Here one must necessarily have a long view.^[4]

The ALRC’s publications—especially the Final Reports—provide a significant contribution to legal history, through the mapping of law at a particular moment in time. Each ALRC report not only examines the way law has been viewed in the past, but also maps its development and outlines what the present law is. In reviewing the myriad submissions received and consultations undertaken, ALRC reports also provide a snapshot of opinion on the issues being considered—again making an invaluable contribution to legal history, and increasingly locating legal reforms within a particular social context at a given time. For example, the ALRC’s inquiry into the recognition of Aboriginal customary laws, completed in 1986—almost 30 years ago—was the ALRC’s 31st report. It is the 4th most downloaded report on the ALRC’s website and, since 2010 has been visited nearly 200,000 times and downloaded over 5,500 times. This ongoing interest almost 30 years after the Report was completed signifies the enduring nature of the ALRC’s work and impact, even where specific recommendations may not have yet found their way into legislation.

The ALRC’s ongoing impact is also evidenced by the use made of its reports by the judicial and legal profession in a myriad of judgements around the country. Michael Kirby observed in a contribution he wrote for the 30th anniversary of the ALRC:

It is beyond question that courts and academic institutions are increasingly turning to law reform reports as a significant, intensive and accurate source of legal authority, principle and policy. In this way, even if unimplemented by the Parliament, a law reform report can influence the development of the law by the courts, and also by officials and other agencies.

In support of such observations, the Federal Court wrote in its submission to the Senate Standing Committee on Legal and Constitutional Affairs References Committee’s 2011 Inquiry into the ALRC:

The Court benefits greatly from the ALRC’s reports, research and analysis of complex areas of law within federal jurisdiction … More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented … In this way, the ALRC’s reports have assisted the Court in the tasks of ascertaining the law, interpreting statute and developing the common law.

Building relationships and engaging with the community is another way in which the work of the ALRC makes an impact beyond its legislative one. Productive and dynamic relationships with stakeholders across the spectrum of interests in any inquiry fosters an engagement with the issues raised and the recommendations generated throughout the inquiry. Discussing the policy implications of various proposals and recommendations involves stakeholders in a meaningful process of analysis and exchange that can often have reform consequences of its own beyond the legislative process.

The ALRC has historically played, and continues to play, an important educative role on the processes of law reform internationally, and in particular, within our region of South East Asia. An independent process of law reform is part of an independent justice system, which in turn contributes to the development of an open and democratic society. In its educative and support role, the ALRC carries a message of civil justice and democracy on behalf of the Australian Government, and does much to advance Australia’s standing within our region and more broadly by building cooperative relationships with our legal counterparts and sharing information and experiences. Since December 2009, the ALRC has provided professional development to a number of law reform agencies throughout the region including training in Papua New Guinea and Botswana, and has hosted Legal Officers from the Samoa and Solomon Island Law Reform Commissions to undertake intensive law reform internships. In the last two years alone, the ALRC met with delegations from China, Korea, Kenya, Vietnam, Malaysia, Uganda, Indonesia, Nigeria, Malawi and Papua New Guinea to discuss various issues of law reform and the democratic process. These delegations provide a further opportunity for Australia’s independent system of law to be more deeply understood by our neighbours.

One of the aspects of the ALRC that is central to its ongoing legitimacy and survival as an independent and effective law reform body is that it is a generalist body with its intellectual capital and specialisation being the process of law reform itself. This means that the ALRC is not allied, or seen to be allied, with particular views on any given subject nor with specialist interests, and helps maintain the intellectual independence that is fundamental to its process. It means that the ALRC continues to be able to undertake inquiries across the vast range of matters embraced by Commonwealth laws, and to lead projects that involve the complex federal interactions of Commonwealth and state and territory laws. The types of law reform reviews that the ALRC is uniquely experienced to undertake include those where there are complex legal issues involved and 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. The subject matter of the ALRC’s recent inquiries provides excellent examples of this. Looking at how to enhance the equality of people with disability in Commonwealth laws while the NDIS is being implemented, considering whether the promise of Native Title has been realised 20 years after the landmark Mabo High Court decision, or addressing serious invasions of privacy in the age of the internet are all highly complex and challenging areas of great concern to the community that require careful and in-depth consideration. 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.

ALRC President, Professor Rosalind Croucher AM stated in the presentation of last year’s Annual Report:

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 not answers, and that draws on the wealth and diversity of experience and knowledge in the community to help inform the reform process, cannot be overestimated. 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 and its ability to provide high level legal policy advice at arm’s length from government, that our value truly lies.

It remains as crucial in 2015 as it was in 1975 that federal laws are updated to reflect changes in Australian society and in community expectations. Many of the ALRC’s inquiries are about ensuring our laws are able to both 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, to accommodate changes in the environment, particularly in the digital era. A dedicated expert agency, such as the ALRC, that assists the Government to keep the laws relevant, accessible and fair is needed now, more than ever before. Undertaking the in-depth research and analysis, and finding possible legal solutions is the value-add that the ALRC provides to Government decision-making. In this way, the ALRC contributes to the Government’s agenda for a fair and accessible system of Commonwealth law.

In a collection of essays published in 1983, Michael Kirby reflected that ‘the role of the ALRC in promoting community debate and professional acceptance of the needs of reform may be a more lasting and pervasive contribution to law reform in Australia than any particular project’. And in 2008, 25 years later, he expressed this as ‘the flame of ideas’ kept alight by permanent law reform bodies, ‘The flame of law reform affirms a central concept of the rule of law itself: legal renewal.’

In its 40th year, the ALRC has as important a role now as it had at its foundation. It has earned the respect in which it is held, both nationally and internationally. The ALRC has a high reputation to maintain and must continue to demonstrate the value that it provides to the Australian Government and community.