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Australian Law Reform Commission - Reform Journal |
After two decades, where is the Australian Law Reform Commission heading? Alan Rose AO, President of the Australian Law Reform Commission, presents his views on law reform in Australia and the role of the Commission.
Over the years, the need for independent ongoing mediation and intercession in the hurly burly of law-making by the legislature, the executive and the courts has been widely recognised. There must be a safety valve: an opportunity for mature and independent reflection.
This task extends across the range of public and private law. It is important that somebody takes the time to research, consult and make proposals so that law might keep pace with social change, economic and political needs, and developments in legal policy whilst maintaining its long term architecture: the intelligibility, overall shape and internal consistency of the law. The overall objective of such mediation or intercession is to advance the interests of those who use and are affected by law - the Australian public - ensuring that government under the rule of law remains a practical reality.
At the state and at the federal level there have been law reform commissions vested with such responsibilities for the last one hundred years or so. The importance placed on their work has waxed and waned but the idea and the practice of institutional law reform has taken root.
Twenty years ago, on 1 January 1975, the Australian Law Reform Commission (ALRC) started operations in Sydney under legislation introduced by the late Lionel Murphy and assented to on 20 December 1973.
The Parliament's intentions in providing for a specific federal institution to carry out this function were, it would seem, to provide a national focus for unifying Australian private law while recognising the separate jurisdictions of the states and territories.
The functions of the ALRC are to review federal laws with a view to their systematic development and reform including in particular:
There is a continuing role to be played by the ALRC and State and Territory Commissions after twenty years, despite changes in how each of the members of the federal official law-making family' operates - this was the conclusion reached by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its Report The Challenge Continues, of May 1994.
It concluded that since the ALRC was established a great deal of law reform has been done but the need has not diminished.
The Government's Justice Statement of May 1995 endorsed the overwhelming majority of the Committee's recommendations and the thrust of its conclusions to maintain and enhance the Murphy experiment.
There have been, on the other hand, in submissions put to the Committee and on other occasions over the years some criticisms of the ALRC and the role of institutional law reform. However, this has not prevented the government and the parliament endorsing proposals to establish other specialist law reform bodies. They are:
In popular parlance much of this effort could, and from time to time is, described as law reform. However, when viewed from the perspective of the institutional law reformer - who sees law reform as a process of change which occurs after full specialist consideration and review of a significant area of law - this is a loose use of terminology.
Law reform is properly confined to proposals for change made with full knowledge of the content and taking into account the history and development of the Australian legal system, over-arching legal policies and the interaction of the collection of rules and principles in relevant subject areas of the law.
One other element is crucial - law reform proposals for change are those made after transparent and broadly based public consultation processes. Law reform does not occur by stealth. Such changes aim to enhance the cohesiveness of the law, strengthen principles and advance people's capacity to understand and feel confident that government, their business and private relationships are being carried forward in accordance with the law. Protection of individual rights is also a fundamental concern.
Institutional law reform provides a rare opportunity for individuals to communicate their desires for changes in the law to an independent body that can do something with the information. The ALRC's processes allow it to take an apolitical, detached and independent approach in evaluating and balancing the views of lobbyists and special interest groups.
Since the Teoh decision of the High Court in April 1995, the implications flowing from Australia becoming a party to various international instruments and the expectations that this raises in the Australian population, need to be taken into account. Additionally, if one considers a whole range of other important international developments - the increasing globalisation of law, business and public affairs generally, international customary law, financial transactions and product standards - Australian life is underpinned by a set of rules and factors that are not really debatable at the domestic level any more. This internationalisation must be taken into account by the ALRC when dealing with its references.
Law reform intercession is therefore broader than the development of one statute or even review of one traditional area of law. Whatever may be the focus of a particular reference, the law reformer must be cognizant of where that field of study fits within the whole fabric of the law (domestic and international) and what the applicable legal principles and policies are. They must also anticipate likely developments.
The task is also a comparative one. No longer is the development of the law confined to thinking, writing and law-making within the common law world alone. Law reform like many other disciplines has been progressively globalised, encompassing the civil law heritage and the work of international and supranational bodies. For us, the international treatment of indigenous rights and recognition of the legal systems of indigenous peoples is important.
Of importance also is a close familiarity with the way Ministers, parliamentary committees, judges, legal practitioners, various tribunals and officials draw on and assimilate into Australian law, legal practice and procedure, international developments and experience.
From these perspectives the work of the ALRC is distinctively different from what is done by the executive, the Parliament, and others in law making. It needs to complete a full analysis and synthesis, area by area of the law. The disciplines to be followed bear a close resemblance to what the offices of parliamentary counsel and legislative drafting do, but go beyond the approaches they follow in a policy and comparative law sense.
The public policy process, particularly in a federal system, involves participation of a large number of public and private institutions and individuals. The process is also dynamic. In no area of public policy does the game stand still for any appreciable period of time. When the lawyer and the law reformer interested in both public and private law participate in public policy formulation they are concerned with reinforcing the basic tenet of Australian democratic government - that the people have consented to have their business conducted and ruled by law, under the Australian Constitution.
For this to remain true and for the implicit consent of the people to large scale delegation' of policy making to continue (with low levels of civil disturbance and maximum social cohesion); policy should be given formal legal shape to the maximum extent possible. Doing so gives policy transparency, publicity, availability, certainty and challengability. This concern the law has with legitimacy and due process in public policy making is long standing.
The law has also pretended to completeness and consistency. The fundamental premise of the common law has been that the law to cover any situation exists, merely waiting to be elaborated by an appropriate court.
Legal policy is an over-arching control on public policy. It has evolved over the centuries as the most effective means of maintaining social order and promoting economic progress - it is in that sense strategic. Its strategic importance is given formal recognition in Chapter III of the Australian Constitution - which provides for federal judicial power to be exercised by the High Court, the Federal Courts and other courts vested with federal jurisdiction. These provisions have been consistently interpreted by the High Court, most recently in the Brandy Case, to require a rigorous separation of judicial powers from the exercise of executive (including administrative) and legislative powers. No such separation has been found to be constitutionally required for the other two.
Legal policy encompasses the form and substance of the common law built up over nine hundred years. Additionally, because in Australia the Parliament is not supreme, there is the jurisprudence of judicial review.
Much public policy making by governments has been significantly affected by economics and the work of economists, especially at the macro level, is also strategic.
The outcome for public policy in Australia is a useful on-going tension between economic and legal policy. Areas such as taxation, industrial relations, trade practices and corporations regulation are examples of this inter-play. The welfare state in Australia is firmly constructed on a legal policy base.
The doctrine of judicial review under the Constitution enables the High Court to strike down policy making by parliaments and governments. From time to time such action does raise the chant - 'who is running the country?'.
One result of the pressure and complexity of modern government and policy tension has been a proliferation of law-making at all levels: more acts, regulations and other rules and more decisions of courts and tribunals.
If it gets out of hand, this outpouring has the tendency to lead to policy confusion, to the law becoming difficult to find and to it becoming obscure and uncertain. If such a policy and legal malaise sets in in a major area of law such as taxation, the outcome for the people can be unrest, lack of confidence and public demonstration of disaffection.
Some commentators and critics assert that the role I have described is illegitimate social engineering. Their thinking is founded on a belief that law reform is properly confined to removing obsolete and archaic language and anomalies: an approach of mere housekeeping. Many, I suspect, still accept the myth that legal decision making and policy are in separate water-tight compartments. Yet another group of critics start from the presumption that proposals for substantive and policy changes to the law should only be initiated by elected members of the Parliament through the traditional political processes.
On the whole the custodians of legal policy, the courts and Attorneys-General have had a more enlightened view by continuing to provide a flow of references to the ALRC. Of course many critics of institutional law reform and the ALRC's work are also highly critical of judicial review including by the High Court, even though this is constitutionally provided for.
| Sustainable law reform is only achieved by building consensus for change gradually, subject area by subject area. |
Some criticism is based on a firm conviction that all changes to rights and obligations should only be made after a full benefit/cost study has been carried out. The assumption of such critics is that all policy and legal changes can be quantified and meaningful estimates made. The experience of the ALRC suggests that such an analysis is practicable when second level, detailed changes are being recommended to established legal regimes. But it doubts the validity of such an approach to radical change, such as the effect on real property law after Mabo and the Native Title legislation, on the effect on human rights that a constitutional bill of rights would have or that the Teoh case has made or that a specific legislative or constitutional guarantee of equality would effect.
Of course, such radical changes do have direct and indirect financial and economic effects. The cumulative outcome may eventually require significant changes in basic economic and financial policy settings, but the changes themselves are made as on-balance judgments principally for reasons of legal principle and policy: social justice, enhancing human rights and international comity. Where economic and legal policy prescriptions conflict, giving supremacy to one over the other is primarily the outcome of subjective judgmental reasoning.
In a pluralist, universal franchise democracy the processes of law reform are eclectic. The bases for the judgements of law reformers in such radical situations are not those normally employed by treasury officials, accountants, engineers, physical scientists or businessmen. But they are familiar to artists, social scientists, philosophers, political scientists and legal scholars. A healthy tension has and will continue to exist between the humanities, the sciences and the dictates of economics: the high priests of each believing in their natural superiority. Each plays a vital role in informing and shaping the corpus of Australian public policy. It has been the place of financial creativity to keep pace with and accommodate, or put a brake on the emerging law reform consensus. Whether or not to make a change of a radical kind has, in my experience, depended not on accounting or mathematics, but on conscience, emotion and a feeling of what is right in the circumstances.
Sustainable law reform is only achieved by building consensus for change gradually, subject area by subject area. Trenchant criticism of the work of law reform bodies is made from time to time because of slow progress and because many of their reports are seen as gathering dust on Ministry shelves. Much of this criticism is made against unreal expectations. The maturation time for high quality law reform has much in common with that required for good red wine. One measures time in blocks of five years not five months.
Australian law has evolved, with one or two exceptions (such as the Constitution), within the constraints of the English common law tradition. Its development over the last 20 years has been more eclectic borrowing from a number of other overseas jurisdictions and a growing corpus of international uniform law. This practice, adopted now by policy and law makers at all levels, is beneficial, possibly even becoming best international practice, and ensures the Australian legal system has great vitality and is one increasingly looked to by others for useful instruction and guidance.
The continuing task for the law reformer is to try to discern the evolving shape of each of the principal areas of property law, business law, family law and domestic relationships, human rights, constitutional and administrative law, communications law, criminal law, international obligations, consumer protection, environmental protection and Aboriginal customary law.
There are a number of inherent difficulties and constraints affecting this task :
In many cases the outcome of such an approach has been too little too late. It also fails to emphasise the basic policy message that to ignore for decades what is happening with the policy and substantive content of an important area of law, such as the law of trusts, comes at substantial cost to the community. It is not a satisfactory answer to say it really is the job of the courts to keep the policy and the framework of the law under scrutiny, and that institutional law reform is an optional extra.
Much in the legal policy paradigm has changed in the last half of the twentieth century. The rate of social, economic and political change is much greater than it was in the nineteenth and earlier centuries. The law is for and affects the lives of all the Australian community - not just businesses and what was previously a much smaller middle class. No longer are notions and concepts of property alone the core of jurisprudence and legal policy. Human rights and administrative law have become the engines of legal policy growth and development.
The ALRC has pioneered a more action-oriented and community consultative approach to law reform mediation and intercession while not lessening the importance it places on sound research by specialists, academic lawyers and legal practitioners. Appropriate use also been made of the media, conferences and seminars, public addresses and publications, popular and learned, to develop the law reform agenda. The ALRC also works to anticipate law reform requirements by agenda building in preparation for periodic discussions on possible references with the Attorney-General.
However, as the Standing Committee on Legal and Constitutional Affairs concluded, there is a need for improved approaches to implementation of the ALRC's recommendations. This requires much closer consultation and involvement with relevant departments and agencies during all stages of a reference and greater investment by the Minister and agency concerned specifically in preparing for implementation.
In short from start to finish there needs to be commitment to the process and close involvement with ALRC work by the executive agency concerned. The older ALRC tactic of producing finely worked draft bills and hoping to insinuate them through the Parliament has been discredited.
The one major report which 'blots the copy book' badly is ALRC 31: The Recognition of Aboriginal Customary Laws, 1986. The Commission is taking an active interest in the Minister for Aboriginal Affairs' efforts to make progress in considering implementation of ALRC recommendations in areas such as family law, criminal law and evidence and local justice mechanisms. Significant impetus has been given to the ALRC's recommendations in the real property law area concerning hunting, fishing and gathering rights by the Mabo decision and the National and State Native Title legislation.
The reputation the ALRC has outside of government depends very much on the quality of its reports and other published papers, the consultation processes followed and dealings with individuals, organisations and interest groups in the community. The one outstandingly discordant voice the Committee heard amongst the submissions came from the Business Council of Australia who felt that the ALRC had not satisfied the onus of objective and transparent consultation and had put forward recommendations that were against the interests of the Council's constituents. This was a reaction to one or two ALRC reports only.
A persistent criticism of the ALRC which is very much tied up with the question of resources is the time taken to complete references. Realistically, there is a direct correlation between the time taken to produce a report and the effectiveness of its implementation.
The ALRC has carefully considered all of the recommendations made by the Standing Committee and indicated to the Attorney-General its wholehearted support for all but those one or two concerning internal management, implementation of which in the Commission's view would have led to a loss of staffing flexibility and increased overhead costs.
To rectify the shortcomings identified by the Standing Committee and to meet its recommendations the ALRC has changed a number of its operating arrangements, staffing profiles, and to some extent its structure. These include:
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/1995/2.html