Easton, Michael --- "Law Reform and the New A-G: the Hon Daryl Wiliams QC AM MP" [1996] ALRCRefJl 9; (1996) 69 Australian Law Reform Commission Reform Journal 25

---

ALRC Reform 69

LAW REFORM AND THE NEW A-G
the hon daryl williams qc am mp

Daryl Williams was appointed Attorney-General and Justice Minister shortly after the Coalition came into power on March 2 1996. Although relatively new to politics, having entered parliament in 1993 in the Western Australian seat of Tangney, he has had a long and distinguished career in law and law reform.

A commercial barrister for 18 years, he was a member of the Law Reform Commission of Western Australia from 1982-86 and was Chairman from 1984-85. He has also been President of the Law Council of Australia in 1986-87 and was awarded an Order of Australia in 1989 for services to the law. He was involved in the 1994 House of Representatives Standing Committee on Legal and Constitutional Affairs review of the ALRC.

Recently Daryl Williams talked with Reform editor Michael Easton.

The quietly spoken Mr Williams currently has a lot on his plate. Appointed both Attorney-General and Justice Minister after the March 2 federal election, he has already outlined an ambitious law reform program.

He gained national prominence after brokering agreement between all the States and Territories for tough uniform gun laws after the Port Arthur shootings. He has also indicated that he intends to set up a mechanism to involve federal and state parliaments in the international treaty making process, make substantial changes to the organisation of the Family Court, give priority to recognition of Aboriginal customary law and look at improving bankruptcy laws, especially for small businesses.

Major changes to Commonwealth tribunals and the Federal Court are also planned. Following the High Court's decision in Brandy, much of the dispute determining work previously done by the Native Title Tribunal and the Human Rights and Equal Opportunities Commission is to be funnelled back into the Federal Court. The jurisdiction of the Industrial Relations Court is also to be transferred back to the Federal Court. The creation of an intermediate Federal Court - a federal magistracy - is also under consideration.

All this suggests that Daryl Williams is a long-term law reformer who plans to make the most of the opportunities afforded to him in his current position. I asked him what it was like to move from someone who could only suggest proposals for reform to someone in government who can implement them directly:

Well, there were frustrations involved in being a member of a law reform commission because you can do what you want in the best interests of everyone and suddenly find that the Attorney-General comes back and tells you; 'sorry it's not on'. The political reality might involve something quirky that you, from your vantage point, would regard as not of great significance.

But being in government and dealing with political reality you're faced with the other side of the same issue. You've got to deal with people in the community and being in government doesn't mean that you can impose your will on the community, being in government doesn't mean that you can impose your will on people in parliament - you've still got very carefully developed processes to go through to gain approval for whatever it is you want to reform.

I think that what you have to do is to be patient. Reform of the law is a slow process. Many interest groups have now developed mechanisms for having their point of view heard. We don't have equivalent mechanisms for giving appropriate weight to the views put by other people. The opportunity must be there for everybody to have a point of view and giving that takes time. Then getting it right, which is what I see as a function of law reform commissions like the ALRC, is also something that will take a while.

Daryl Williams' political career does not seem to have diminished his loyalty to traditional legal values. Since his appointment he has spoken in favour of the Queens' Counsel system, defended the competitiveness of the legal profession from the grumblings of economists and has even mooted the possibility of a body to defend judges from unfair criticism. He also has strong views on the need for independently-minded law reform commissions:

Some of the most spectacular failures I've seen in law reform commission reporting have been where the commission has responded to political pressure, or has responded to a dominant person or view. They've bent over too much to respond to what was thought to be government policy.

I'm not saying that the law reform process in these cases lacked integrity but it gave undue weight, I think, to what was perceived to be government policy. The other situation was where, for example, a commissioner-in-charge has come into a project with a committed personal view and has, unfortunately, succeeded in imposing that view on the others involved and the report has come into a crashing fall.

It is important that the commission bring an independent objective mind. If the commission or individual commissioners involved are seen to have a political agenda or a personal objective during a project then I think the credibility of the report is likely to be finished and the prospect of it being implemented are diminished greatly.

He sees access to justice as an issue of particular concern, and places special importance on rethinking some aspects of the adversarial system of justice (a current ALRC reference):

I think as a matter of policy we do have to turn less to adversarial procedures for resolution of disputes within the community and more to other non-adversarial methods like conciliation or mediation or even arbitration. We have to try and take the confrontation out of it.

In addition, I think, we have to recognise that the highly refined system we have developed for the criminal trial and for the trial of a civil action provide the best possible means of achieving a fair and just result. But they are also probably one of the most expensive ways of resolving a dispute. I think we have to train the community to accept that in some situations they don't need a gold plated solution, they can make do with one made out of sackcloth.

It seems that Daryl Williams is set on significantly reshaping Australia's legal system. However his ambitions may be tempered by the sweeping cut-backs in Government expenditure that will apply across all departments. I asked him what this climate of financial austerity means for the ALRC:

In the political spectrum there has always been a point of view that law reform commissions are a luxury. I think that view has usually been held by people who don't know what the function of a law reform commission is. There is particular pressure where economic restraint is essential in the national interest and unfortunately I expect that the ALRC and other commissions are going to be feeling that pressure in the next two or three years.

I do, however, see a continuing need for bodies devoted to law reform. There are many bodies which are engaging in law reform in a whole variety of different ways but the ALRC, I believe, has carved out a particular role for itself.

---