2015–16 has been another significant year for the ALRC. We released our 87th report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, the report for the Freedoms Inquiry, and received Terms of Reference for a new inquiry into protecting the rights of older Australians from abuse.
We also celebrated 40 years of best-practice law reform at an event in Sydney at the Federal Court, attended by a wonderful array of eminent and esteemed past and current Commissioners, staff and ALRC friends. At that event, we heard reflections on the achievements of the Commission and its outstanding body of work from our foundation Chair, the Hon Michael Kirby AC CMG; from the Chief Justice, the Hon Robert French AC, a former ALRC part-time Commissioner; and from our Attorney-General, Senator the Hon George Brandis QC. Chief Justice French reflected on the importance to the democratic process of a well-resourced and independent law reform body, stating that the value of the Commission ‘lies in its contribution to the democratic function of law-making in our society and the understanding of the law by practitioners, academics and the courts’. I also reflected on how we could best capture the rich and important contributions made by so many people to the ALRC’s body of work. In response, I launched the ALRC’s online archive which captures many of the stories, reflections and contributions of our alumni. This archive is available to explore freely on the ALRC website and it represents a significant ‘unlocking’ of the ALRC’s history and celebration of the lively and outstanding contributions to law reform made by so many over the past four decades. I encourage you to visit it at www.alrc.gov.au/40-years-law-reform.
The ALRC is singularly positioned 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 require in-depth consultation with diverse and often opposing stakeholders to consider their opinions and interests carefully, so that the Government is provided with independent and frank advice that has thoroughly canvassed many opinions and options. Indeed, I consider that the value of a standing law reform commission is demonstrated time and time again as we take on inquiries where the subject matter has the potential to divide the community. The value that the ALRC brings is the ability to undertake an independent process of consultation and research that starts with questions, not answers, and is able to involve the participation of stakeholders across the broadest spectrum of interests.
During 2015–16, the ALRC undertook 53 consultations in Melbourne, Brisbane, Canberra, Perth, Adelaide and Sydney, and received 75 submissions. We also organised a number of public symposiums around the country to discuss different aspects of the Freedoms Inquiry that were attended by over 800 people. These discussions were extremely valuable and helped to spread the word about the Inquiry and to encourage community engagement. As part of the consultation effort we have also produced information on the Elder Abuse Inquiry in 20 community languages which will be distributed throughout the community via various ethnic media outlets and community organisations. In this way we are hoping to encourage people from diverse communities to tell us of their particular experiences of elder abuse.
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. At our 40th anniversary event, Attorney-General Senator Brandis stated, ‘That is why we have bodies like the Australian Law Reform Commission, to participate in the dialogue, to identify and hold up to intellectually tight critical scrutiny, the legislative work of the parliaments and the enactments introduced by governments. We do not shy away from that. While not always agreeing with the conclusions, we welcome that as being the essence of a healthy, open, liberal, parliamentary democracy.’
One such challenging project was the wide-ranging and complex Freedoms Inquiry on which the ALRC spent most of the past year. Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, the Final Report in the Freedoms Inquiry, was tabled in Parliament on 2 March 2016. In the Report, the ALRC discusses the source and rationale of the important rights and freedoms outlined in the Terms of Reference and provides an extensive survey of current Commonwealth laws that may limit them. Highly controversial areas that we traversed in this Inquiry included national security laws, migration laws, and anti-discrimination laws along with a host of others. The ALRC identified a range of Commonwealth laws that may warrant further consideration or review, providing a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified. Additionally, the Report provides a thorough analysis of how laws are scrutinised by government agencies, parliamentary committees and others for compatibility with rights, and examines possible justifications for statutory restrictions of common law rights and freedoms. It discusses how laws that limit traditional rights and freedoms might be critically tested and justified, for example by using a proportionality test. The ALRC argues that rights are rarely absolute, but must be balanced with other rights and with the public interest when these interests conflict. Emeritus Professor Suri Ratnapala of the University of Queensland was appointed a part-time Commissioner for the Freedoms Inquiry in July 2015, and provided his considerable experience and expertise to the process and I want to take this opportunity to sincerely thank him for his contribution. A more fulsome summary of this Report and the Inquiry can be found in Appendix C of this Annual Report.
In February 2016, the ALRC received the Terms of Reference for the Elder Abuse Inquiry. I am pleased that this inquiry will build on several others conducted by the ALRC in recent years—including our two Family Violence Inquiries, the Age Barriers to Work Inquiry and our Disability Inquiry. The relationships that we have built over these inquiries with various stakeholders and the conceptual understanding of many of the common issues that have arisen in each inquiry will greatly help the ALRC in realising the potential of law reform in this area. The Elder Abuse Inquiry will involve another deeply reflective and respectful process and I am confident that the ALRC will make a significant contribution in this crucial field. As Australia’s population ages, the size of the problem is set to increase and we must ensure our laws and legal frameworks are able to offer adequate safeguards and protections to all Australians as they age. The ALRC released an Issues Paper—to coincide with Elder Abuse Awareness Day on 15 June—containing 50 questions on which we called for submissions. The next stage of the Inquiry will see us working towards a Discussion Paper by the end of the year and a Final Report in May 2017.
During 2015–16, the ALRC worked on only one inquiry rather than the usual practice of working on two inquiries concurrently. This change to our anticipated work plan was necessitated by a significant reduction in our budget as a MYEFO efficiency savings measure. The ALRC managed this reduction by requesting that the Attorney-General not appoint a second Commissioner and agree to our only undertaking the one inquiry. That the inquiry is one about protecting the rights of older persons against abuse is fortuitous. Not only is it an inquiry that benefits by having the whole ALRC involved in it, but I am also well placed to lead it, both from my own research background and also having led three other relevant ALRC inquires—the inquiry into Reducing Violence against Women and their Children (Family Violence Inquiry), the review into Commonwealth Legal Barriers to Older Persons Participating in the Workforce or other Productive Work (Age Barriers Inquiry) and the review of Equal Recognition Before the Law and Legal Capacity for People with Disability (Disability Inquiry).
This decision has, however, had an impact on some performance targets, which were calibrated on the basis of working on two inquiries. This is not the usual modus operandi for the ALRC and I look forward to again having at least two full-time Commissioners working on two inquiries.
The quality of the ALRC’s work is much enhanced by the generous contribution of our two standing part-time Commissioners, the Hon Justice John Middleton and the Hon Justice Nye Perram. I thank them for their support and participation in our inquiries. Justice Perram also chairs the ALRC Audit Committee. In addition, I want to warmly thank the members of our Advisory Committees who freely give their time and expertise, providing quality assurance and guidance as we grapple with the issues in each inquiry. I record my thanks to those Committee members who participated in the Freedoms Inquiry and those who are now engaged on the Elder Abuse Inquiry. I would also like 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 ALRC’s work 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 more recommendations from Family Violence: A National Legal Response (ALRC Report 114), Classification—Content Regulation and Convergent Media (ALRC Report 118) and Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120). There has also been new implementation of our report on Disability. A full report on implementation can be found at Appendix D.
There have been at least 56 mentions of ALRC reports in the judgments of federal, state and territory courts. In his speech at the 40 year anniversary of the ALRC Chief Justice French said, ‘Speaking of value, I would like to acknowledge the value to the profession, the Academy and the courts of the very large deposit of published works by the Commission since its establishment in 1975 is in the form of Issues Papers, Discussion Papers and Final Reports. Each of them offers a comprehensive overview of the relevant area of the law as at the date of publication. That overview enhances public understanding of the scope and purpose of laws made in the implementation of the report. Even when a report has not been implemented, its discussion of the relevant area of the law has always been a valuable resource.’ 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.
I would also like to thank the staff of the ALRC 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. In particular I would like to congratulate two loyal and extremely effective individuals who this year marked 20 years working with the ALRC—Principal Legal Officer Bruce Alston and Finance Manager Maria Zacharia. Bruce has made a remarkable contribution to law reform over that time working on 14 inquiries.
As the ALRC is reliant on referrals from the Attorney-General, what the year ahead holds for the ALRC is in the hands of the Government and the areas of law the Government may wish us to interrogate. Over its 40 year history the ALRC has undertaken a very wide sweep of work. Sometimes the inquiries involve black letter law projects, focusing on specific legal doctrines: for example, the Inquiries into Legal Professional Privilege and Discovery of Documents in Federal Courts. Sometimes the prompt is about laws that need modernising—the Secrecy, Royal Commissions and Sedition Inquiries are examples. Other inquiries arise because of difficulties within a federal system; and a federal body—the ALRC—is well placed to coordinate a national approach aimed at achieving harmonisation across the various jurisdictions. The ALRC work in the area of evidence laws, conducted with the Victorian Law Reform Commission and the New South Wales Law Reform Commission, is a good example. In 2010, the ALRC completed a joint inquiry with the New South Wales Law Reform Commission on family violence which considered the interaction in practice of state and territory family violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws; plus the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context.
Technology is another big trigger for law reform. Developments have often proved too fast and furious for law—common law and statute law—to respond. The challenges posed by the rapid evolution of information and media technology triggered the ALRC’s Gene Patenting, Media Classification and Copyright Inquiries. Technology has also enhanced the possibility for the invasion of people’s privacy and this led to the 2013 Inquiry into Serious Invasions of Privacy in the Digital Era. Our most recent inquiry, the Freedoms Inquiry, canvassed a very broad conceptual and philosophical landscape of traditional rights, freedoms and privileges and interrogated where these ‘rights’ come from and how are they are protected and justified. Whatever the impetus for an inquiry, and no matter what its scope, the ALRC will always begin unencumbered by any attachment to a particular view or agenda, and be able to offer frank and independent advice to the Government. It is in this regard that the real value of an independent law reform commission lies: able to reflect fully, consult extensively, analyse deeply, and recommend powerfully.
Professor Rosalind Croucher AM