Overview of role and functions

Statutory basis

2.3 The ALRC is an independent statutory agency established in 1975^[2] and currently operates under the Australian Law Reform Commission Act 1996 (Cth) (ALRC Act).^[3] It is accountable to Parliament through the Attorney-General. The ALRC supports the Attorney-General and the Australian Government in the maintenance and enhancement of Australia’s system of law and justice by contributing to the process of law reform in Australia. The primary function of the ALRC, set out in s 21 of the ALRC Act, is to advise the Parliament and Australian Government on the systematic development and reform of areas of the law referred to the ALRC by the Attorney-General.^[4] Under the Australian Government outcomes and programs framework, the ALRC has one outcome, namely:

informed government decisions about the development, reform and harmonisation of Australian laws and related processes through research, analysis, reports and community consultation and education.^[5]

2.4 The ALRC has one program to achieve its outcome—conducting inquiries into aspects of Australian law and related processes for the purpose of law reform.^[6] The ALRC produces timely reports on its inquiries (interchangeably referred to as references), outlining its recommendations, reasoning and evidentiary basis for reform.^[7] Through the inquiry process, the ALRC undertakes extensive research and analysis and conducts widespread consultation to support its recommendations for law reform to provide the basis for informed government decisions.

The focus of inquiries

2.5 In conducting inquiries, the ALRC is required to focus on:

• bringing the law into line with current conditions and ensuring that it meets current needs;

• removing defects in the law;

• simplifying the law;

• adopting new or more effective methods for administering the law and dispensing justice; and

• providing improved access to justice.^[8]

2.6 In discharging its responsibilities under the allocated terms of reference, the ALRC is required further to consider proposals for:

• making or consolidating Commonwealth laws;

• the repeal of obsolete or unnecessary laws;

• uniformity between state and territory laws; and

• complementary Commonwealth, state and territory laws.^[9]

2.7 The ALRC is required to ensure that relevant laws, proposals and recommendations:

• do not trespass unduly on personal rights and liberties;

• do not make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

• are, as far as practicable, consistent with Australia’s relevant international obligations.^[10]

2.8 The ALRC must also take into account the potential impact of its recommendations on access to justice and—from the commencement on 1 July 2011of recent amendments to the ALRC Act—persons and businesses who would be affected by the recommendations. This includes, for example, the economic effects of recommendations.^[11] The purpose of this amendment, as expressed in the Explanatory Memorandum to the amending legislation, is to ensure that the ALRC ‘has regard to any broader implications its recommendations may have’.^[12]

Consultation

2.9 The ALRC is permitted to ‘inform itself in any way it thinks fit’ in conducting its inquiries.^[13] As part of the inquiry process, the ALRC typically produces consultation documents that present issues, ask questions and raise proposals for reform and call on the community to respond. While the nature and extent of the consultation process varies with each reference, its focus is always on those sectors of the community, profession or industry for which the reference is most relevant. ‘Hallmarks’ or distinguishing features of the ALRC’s approach to law reform, including consultative processes, are discussed separately below, as are current issues and recent trends arising in the ALRC’s performance of its functions.

Implementation

2.10 The recommendations in ALRC reports are not self-executing and their implementation is a matter of policy for government. However, the implementation by government over time of ALRC recommendations gives an indication of the ALRC’s relative success in facilitating informed government decision-making. In the 2009–10 financial year, 90% of the ALRC’s reports had been either substantially or partially implemented,^[14] making it one of the most effective and influential agents for law reform in Australia and therefore contributing significantly to the government’s law reform progress.

2.11 While the Attorney-General is required to table each ALRC report—including interim reports—within 15 sitting days of receipt,^[15] there is no statutory requirement for the Australian Government to respond formally to an ALRC report. However, the ALRC strongly supports the release of formal government responses to its reports, which appears to be a limited practice at the present time.^[16]

External pressures

2.12 As discussed further below, the ALRC’s ability to achieve its outcome and the ways in which it performs its statutory functions are influenced by a range of external factors, including:

• the government’s policy agenda and timelines, which influence the nature, scope and number of inquiries referred to the ALRC;

• resourcing levels, which determine the ALRC’s capacity to undertake inquiries; and

• the involvement of a wide range of public and private stakeholders, and the quality and timeliness of their contributions—including by way of submissions, consultations, informal contributions, participation in expert advisory committees, appointments to part-time Commissioner positions or engagement as special advisers.

Enhancing the inquiry work

2.13 In addition to its statutory functions, the ALRC utilises its standing knowledge and experience to make contributions beyond its immediate inquiry-based work to broader legal policy development, community engagement with government and the achievement of Australian Government policy priorities. These extended functions—discussed separately below—have included initiatives directed to the following:

• public outreach activities about the work of the ALRC and the law reform process generally, including education and information dissemination through participation in conferences and seminars, particularly through keynote presentations, and media engagement;

• extensive collaboration and cooperation—for example: engagement with other domestic and overseas law reform bodies to share information and benchmark ALRC practice and procedures; formal and informal meetings with domestic and foreign government agencies, ministers and parliamentarians; and making submissions to other government inquiries where appropriate to ensure that relevant ALRC reports and recommendations are understood and taken into account in legal policy development;

• monitoring the implementation of recommendations, and citation of ALRC reports in major judicial decisions, parliamentary debates, academic publications, media reportage and other publications;

• acting as a ‘clearinghouse’ for law reform information in Australia—for example, monitoring law reform efforts in all Australian states and territories and overseas jurisdictions;

• undertaking empirical research, where necessary for individual references;

• where specifically required by the terms of reference in individual inquiries, preparing draft legislation incorporating law reform recommendations.

2.14 The nature and magnitude of these extended functions have varied over time, in accordance with internal and external factors including organisational and government priorities, work flow, resourcing levels, membership and staffing.