Scope and staff resourcing of past inquiries

4.25 The following section summarises the scope and staff resourcing of ALRC inquiries for which the final report was completed in the calendar years 2003 to 2010. In this period, the following 11 final reports were completed:

•  Family Violence: A National Legal Response, 2010 (ALRC 114)
•  Secrecy Laws and Open Government in Australia, 2009 (ALRC 112)
•  Making Inquiries: A New Statutory Framework, 2009 (ALRC 111)
•  For Your Information: Australian Privacy Law and Practice, 2008 (ALRC 108)
•  Privilege in Perspective: Client Legal Privilege in Federal Investigations, 2007 (ALRC 107)
•  Fighting Words: A Review of Sedition Laws in Australia, 2006 (ALRC 104)
•  Same Crime, Same Time: Sentencing of Federal Offenders, 2006 (ALRC 103)
•  Uniform Evidence Law, 2005 (ALRC 102)
•  Genes and Ingenuity: Gene Patenting and Human Health, 2004 (ALRC 99)
•  Keeping Secrets: The Protection of Classified and Security Sensitive Information, 2004 (ALRC 98)
•  Essentially Yours: The Protection of Human Genetic Information in Australia, 2003 (ALRC 96).

4.26 Relevant to the assessment of adequacy is a consideration of the scope of the inquiry, its duration and the staff needed to support the completion of the inquiry.

Scope of inquiries

4.27 The scope of ALRC inquiries varies significantly. Table 1 characterises the scope of inquiries according to high, medium or low complexity. The complexity of an inquiry has been assessed in the light of the nature of the legal and policy issues under consideration; and the breadth and intensity of stakeholder interests involved.

High complexity

4.28 Five inquiries are characterised as being of high complexity. An example is the review of the Privacy Act 1988 (Cth). The Terms of Reference for this inquiry required the ALRC to review the extent to which the Privacy Act and related laws continue to provide an effective framework for the protection of privacy in Australia.

4.29 The inquiry involved, among other things, the development of recommendations to: redraft and restructure legislative privacy principles; restructure privacy regulation to follow a three-tiered approach of high-level principles of general application, regulations and industry codes, and guidance issued by the Privacy Commissioner (and other relevant regulators); adopt a common approach to privacy protection in all Australian jurisdictions; update important definitions in the Privacy Act to deal with new technologies and new methods of collecting and storing personal information; rationalising and clarifying exemptions; improve complaint handling and penalty provisions; alter the structure and role of the Office of the Privacy Commissioner; establish a new data breach notification regime; permit the implementation of a form of more comprehensive credit reporting; improve regulation of telecommunications and health information privacy; and establish a statutory cause of action for a serious invasion of privacy.

4.30 The breadth of the subject matter covered in the privacy inquiry required the ALRC to undertake the largest community consultation program in its history. The ALRC organised: over 250 face-to-face meetings with individuals, organisations and agencies; major public forums in Melbourne (focusing on consumers and privacy), Sydney (focusing on business and privacy) and Coffs Harbour (focusing on health privacy and research); six workshops for children and young people (aimed at those aged 13–25); a series of roundtables with individuals, agencies and organisations on a variety of themes including: credit reporting; telecommunications; the privacy principles; children and young people; and health and research; a highly publicised ‘National Privacy Phone-In’ on 1–2 June 2006, during which more than 1,300 members of the public contacted the ALRC to share their experiences, ideas and attitudes about privacy protection; and the establishment of a ‘Talking Privacy’ website, designed specifically to appeal to young people. The ALRC received 585 written submissions from a broad cross-section of individuals, organisations and agencies.

Medium complexity

4.31 Five inquiries are characterised as being of medium complexity. An example is the review of Commonwealth secrecy laws. The Terms of Reference for this inquiry required the ALRC to review options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government by providing appropriate access to information.

4.32 The inquiry involved, among other things, the development of recommendations to: repeal the wide catch-all provisions currently in the Crimes Act 1914 (Cth), and introduce a new general secrecy offence, limited to disclosures that harm essential public interests; establish best practice principles to guide the review, repeal and amendment of specific secrecy offences; and improve the management of government information within this framework. An integral component of the background research undertaken by the ALRC for this inquiry was a ‘mapping exercise’ to identify and analyse the multitude of secrecy provisions in Commonwealth legislation.

4.33 The inquiry featured wide consultation, but was more limited than that involved in the privacy inquiry. The ALRC conducted 35 meetings with a number of Australian Government agencies, academics, judges and members of the legal profession and used an online forum and a national phone-in. Eighty-four written submissions were received.

Low complexity

4.34 For an ALRC inquiry, the review of sedition laws was unusually narrow in ambit. It concerned review of a small number of specific criminal offences contained in the Commonwealth Criminal Code and Crimes Act.

4.35 The ALRC developed recommendations for: reform of the existing sedition offences in s 80.2 of the Criminal Code and related matters, including recommendations for reform of the treason offences in s 80.1; and the repeal of the unlawful associations provisions contained in Part IIA of the Crimes Act.

4.36 The ALRC consulted with a wide spectrum of stakeholders, including: community groups; prosecution and law enforcement agencies; criminal defence lawyers; judges; government lawyers and officials; media organisations and peak associations; legal professional associations; human rights and civil liberties groups; and academics. The ALRC conducted 27 consultation meetings and received 126 written submissions.

Table 1—Complexity, consultations and submissions, publications and team, 2003–2010

Team

4.37 The team that undertakes an inquiry for each Terms of Reference includes a legal research team and the complementary inquiry team supporting all inquiries. In addition, there is a considerable element of honorary or pro bono contribution. While the latter involves minimal cost, it adds enormous value to the integrity and quality of the reports.

Legal research team

4.38 The table provides information as to the complement of ALRC full-time and part-time Commissioners and legal officers who were engaged to an important degree in each of the inquiries. These figures require some explanation. In the past decade the pattern has been that one full-time Commissioner has had responsibility for the inquiry and leads the research and writing team.

4.39 As discussed elsewhere in this submission, the complement of President and other Commissioners has varied over the life of the ALRC. The engagement of the President and other Commissioners on specific inquiries has varied depending on the nature of the inquiry and the number and role of other Commissioners.

4.40 At one end of a spectrum of engagement, a Commissioner may be the sole Commissioner in charge of an inquiry and intimately involved in all aspects of its conduct. At the other end of the spectrum, a Commissioner may be on the formal ‘division’ of the ALRC constituted for the purposes of a particular inquiry, but not involved in the day to day work of the inquiry.

4.41 The table assumes that the President of the ALRC has had an important role in each of the ALRC’s inquiries. The President also has duties as Chief Executive Officer of the agency and an important role in all concurrent ALRC inquiries. In some inquiries the President has taken a more active role. For example, in the gene patents inquiry, conducted from December 2002 until June 2004, the then ALRC President, Professor David Weisbrot played the leading role. In addition, two full-time ALRC Commissioners, Professors Anne Finlay and Brian Opeskin, were engaged fully in the inquiry.

4.42 The usual position over this period, however, has been for the President to oversee, and another full-time Commissioner to lead, inquiries. This was the structure of eight of the 11 inquiries featured in the table—sometimes assisted by Commissioner-level personnel from partner organisations, such as state law reform commissioners. For example, the secrecy and privacy inquiries were led by Commissioners in charge Professor Rosalind Croucher and Professor Les McCrimmon respectively, together in each case with oversight from ALRC President Professor David Weisbrot.

4.43 Since December 2009, Professor Rosalind Croucher has been the President with no other full-time Commissioners. She has had oversight, in her capacity as President, but also performed the role of Commissioner in charge of the inquiries undertaken since that time.

4.44 Commissioners are counted in the table only where they had an important day-to-day role in the conduct of an inquiry. This approach is not intended to diminish the role of other full-time and part-time Commissioners as experts and advisers, which is fundamental to the operation of the ALRC. It does, however, give an accurate indication of the staff resources available to the ALRC in undertaking the research, writing and consultation effort in an inquiry.

4.45 Where the ALRC was assisted on a day-to-day basis by ‘Commissioner level’ personnel from other law reform commissions or bodies such as the National Health and Medical Research Council (NHMRC), this is also recorded.

4.46 The figures for Commissioners and staff engaged on each inquiry are approximate and take into account individuals’ other responsibilities and personnel changes during the duration of a reference. For example, while three Senior Legal Officers and seven Legal Officers worked on the uniform evidence law review, at any one time about two Senior Legal Officers and three Legal Officers were engaged. The table therefore provides a practical insight into the core writing team for any inquiry.

4.47 The average complement of legal officers engaged in each ALRC inquiry is five, comprised of two Senior Legal Officers and three Legal Officers—the designation of staff under the ALRC’s Enterprise Agreement.

4.48 The desirable complement of legal officers varies depending on other resources available to the ALRC in a particular inquiry. For example, in the family violence inquiry, research, consultation and writing was contributed by the NSWLRC Commissioner (appointed in March 2010) and one legal officer; and, in the human genetic information inquiry, by members and staff of the Australian Health Ethics Committee of the NHMRC.

4.49 The important role of personnel who directly support and complement the inquiry-related roles of legal officers, including those managing research and information resources and online consultation is considered below.

Complementary Inquiry team

4.50 Supporting the work of the inquiry writing teams is a team of complementary staff, including the Executive Director, Project Coordinators, Website Manager, Librarian, Research Manager, and finance team.

Honorary contribution

4.51 Under this heading the ALRC notes that for each inquiry there is great value in the contributions of advisory committees, part-time Commissioners, and those consulted throughout an inquiry, as noted in the second part of this background submission. Details of such contributions are listed for each inquiry in the Final Reports.

4.52 The ALRC also has an active internship program. Entry into the program is highly competitive and interns on a voluntary basis. Interns require considerable supervision, which in itself has resourcing implications, but their contribution to the research effort in inquiries is noteworthy. This participation is recognised through listing of interns in the list of participants in inquiries.

Duration of inquiries

4.53 Table 2 sets out the duration of inquiries, as measured from the date of the Terms of Reference to the date the final report was delivered to the Attorney-General. This duration ranges from 5 months to two years and four months. The table includes inquiries reporting between 2003 and 2010.

Table 2—Duration of inquiries 2003–2010

4.54 The duration of inquiries is largely a result of the reporting period specified in the Terms of Reference. This specified duration depends on a range of factors, not all of which are transparent to the ALRC. These include perceptions of the scope of the proposed inquiry, the ALRC’s existing inquiries, and the desirability of receiving the final report in time to inform other law reform or policy processes, such as those undertaken by the Standing Committee of Attorneys-General.

4.55 Measuring the duration of an inquiry from the date of Terms of Reference can be misleading. For example, while the duration of the recent family violence inquiry was 15 months, it was not until several months after the Terms of Reference were issued that a full complement of ALRC staff could be dedicated to the inquiry (as existing inquiries had to be finalised) and the assistance of the part-time Commissioner and the NSWLRC commenced. On the other hand, the ALRC sometimes has advance notice of expected Terms of Reference and is able to commence initial research even before the formal document is issued.

4.56 The ALRC undertakes every reasonable endeavour to report within the specified period. It is not uncommon, however, for extensions to be sought from the Attorney-General—in particular, where the reporting period provides insufficient time for stakeholder groups to make submissions. In addition, there are times that, even where there is consultation about a proposed duration for an inquiry, and the ALRC provides advice about an appropriate timeframe to undertake the project, the reporting date does not reflect such advice, and terms of reference may issue with a shorter timeframe than advised.

4.57 There is a clear relationship between the scope of ALRC inquiries and the duration of inquiries. For example, the sedition review was conducted in five months and the privacy review in two years and four months, including an extension of two months on the original reporting date.

4.58 The duration of most inquiries of medium complexity is between one year and eighteen months (the average duration of the 11 inquiries analysed in the table is 16 months). Inquiries of such duration include the reviews on secrecy, privilege, gene patents and security sensitive information.

4.59 The duration of an inquiry may be affected by the number of consultation documents produced. For example, the Family Violence inquiry was effectively completed within 10 months, due to staff being committed to completing two other inquiries (Secrecy and Royal Commissions), and the successful completion in the shorter timeframe was achieved through only producing one—albeit major—consultation document.