The approach to reform

1.16 Section 24(1) of the Australian Law Reform Commission Act 1996 (Cth) specifies that, in performing its functions, the ALRC must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes:

(a) do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b) are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.

1.17 Under s 24(2) of its Act, when formulating recommendations, the ALRC must have regard to the effect that the recommendations may have on:

(a) the costs of getting access to, and dispensing, justice; and

(b) persons and businesses who would be affected by the recommendations (including the economic effect, for example).

1.18 Under its Act, the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.[14]

1.19 Three principles that generally inform ALRC inquiries are: the need to ground recommendations in an evidence base; extensive community consultation; and the ability to draw upon the ALRC’s status as an independent statutory agency to bring together expert opinion on the subject matter of the review.

1.20 Law reform recommendations cannot be based upon assertion or assumption and need to be anchored in an appropriate evidence base. A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.[15]

1.21 Laura Barnett has observed that law reform commissions ‘should make efforts to ensure that the consultation process remains an open process’.[16] The ALRC is well placed to make use of informal information-gathering sessions, as well as the use of technology to better facilitate public input, due to its trusted reputation, based on a history of rigorous inquiry and statutory independence from government.

[14]Australian Law Reform Commission Act 1996 (Cth) s 38.

[15] B Opeskin, ‘Measuring Success’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2005) 202.

[16] L Barnett, ‘The Process of Law Reform: Conditions for Success’ 39 Federal Law Review 161, 175.