Process of reform

1.38 It is standard operating procedure for the ALRC to establish a broad based expert Advisory Committee to assist with the development of its inquiries. In this Inquiry, the Advisory Committee includes members of the judiciary, practitioners from government and the private profession, and academics.[26]

1.39 The Advisory Committee met on three occasions: on 16 September 2004 before the publication of IP 28, on 26 May 2005 before the publication of DP 69, and on 10 November 2005 before the publication of this Report. The Committee has particular value in helping to identify the key issues for inquiry, as well as in providing quality assurance in the research and consultation effort. The Advisory Committee has assisted with the development of the recommendations contained in this Report.

1.40 However, ultimate responsibility for the recommendations in this Report remains with the Commissioners of the ALRC, the NSWLRC and the VLRC. The Commissions held a workshop in October 2005 to discuss and finalise the recommendations in this Report. Representatives of the TLRI, NTLRC and the LRCWA also participated in the workshop.

Community consultation

1.41 Under the terms of its constituting 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.[27] One of the most important features of ALRC inquiries is the commitment to widespread community consultation.[28] This is similarly the case with the NSWLRC and the VLRC.

1.42 The nature and extent of this engagement is normally determined by the subject matter of the reference. Areas that are seen to be narrow and technical tend to be of interest mainly to experts. Some ALRC referencessuch as those relating to children and the law, ‘Aboriginal customary law’, multiculturalism and the law, and the protection of human genetic informationinvolve a significant level of interest and involvement from the general public and the media. This Inquiry falls somewhere in between. While most of the issues addressed are of interest primarily to legal practitioners, the judiciary and legal academics, some issues, such as the cross-examination of vulnerable witnesses, professional confidential relationship privilege, sexual assault communications privilege and jury warnings, elicited interest from a wider section of the community.

1.43 Consultations prior to the publication of IP 28 in December 2004 included public forums and ‘round table’ discussions with legal practitioners, judicial officers and legal academics. The ALRC provided details of, and invited participation in, the Inquiry to courts and legal professional bodies throughout Australia. Some 15 meetings were held prior to the publication of IP 28. These included consultations with members of the judiciary in a range of jurisdictions. In addition, the ALRC had the benefit of submissions from the New South Wales judiciary responding to an invitation from the NSWLRC.

1.44 From January to April 2005, consultations on the issues raised in IP 28 were conducted in every state, the Australian Capital Territory and the Northern Territory. Judicial officers from every jurisdiction, including some members of the High Court, participated. In New South Wales and Victoria, consultations, public forums, and round table discussions were held with judicial officers from the Local, District/County and Supreme Courts. Legal practitioners from both branches of the profession, and their representative organisations, were also consulted, as were academics with an expertise in evidence law. Consultations were also held with organisations involved with specific client groups, for example the Legal Aid Office (ACT) and the Northern Territory Aboriginal Interpreter Service. Further, over 50 submissions addressing issues raised in IP 28 were received.

1.45 From July to October 2005, consultations on the proposals and questions set out in DP 69 were held in five states,[29] the Australian Capital Territory and the Northern Territory. In addition to stakeholders such as the legal profession, legal academics and the judiciary, other individuals and organisations, such as Aboriginal Land Councils, victim support groups and sexual assault counsellors, were also consulted. The VLRC organised four roundtables to discuss the major issues raised in DP 69 and also held meetings with judicial officers and other evidence law experts.

1.46 To promote the harmonisation of the laws of evidence throughout Australia, as mandated in the ALRC’s Terms of Reference, the ALRC met on two occasions with the Attorney-General of Queensland, and representatives of the Northern Territory Department of Justice, the Western Australian Department of Justice and the South Australian Attorney-General’s Department.

1.47 A list of those consulted during the course of this Inquiry appears in Appendix 3.

[26] The members of the Advisory Committee are listed in the front of this Report.

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

[28] See B Opeskin, ‘Engaging the Public: Community Participation in the Genetic Information Inquiry’ (2002) 80 Reform 53.

[29] It was determined that the consultations held in Tasmania in March 2005 were sufficient for the purposes of the Inquiry.