Weisbrot, David --- "Comment" [1999] ALRCRefJl 18; (1999) 75 Australian Law Reform Commission Reform Journal 1

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Reform Issue 75 Spring 1999

This article appeared on pages 1 & 67 – 68 of the original journal.

Comment

When I arrived in Australia in 1979, I was greatly in awe of the quality and breadth of the work of the Australian Law Reform Commission and its then chairman, Justice Michael Kirby. So it is with more than the usual politeness that I say I am deeply honoured to have been appointed to lead the Commission into the next century.

The context of law reform in Australia has changed markedly since the establishment of the ALRC by statute in 1973. Certainly the field has become much more crowded.

The system of active and well-supported committees in both houses of federal parliament is now well-entrenched, with these committees now ranging over many of the same sorts of complex socio-legal problems that were once largely the preserve of the ALRC – how to assure privacy in the computer age, how to regulate the rapid advances in bio-medical technology, how to provide procedural fairness for persons in the armed services charged with offences, and so on.

Similarly, departmental and inter-departmental committees, task forces and working parties now routinely engage in law reform, and adopt some of the techniques pioneered by the ALRC to stimulate public debate, canvass opinions and elicit submissions. Royal Commissions and other ad hoc inquiries are also used to investigate particular matters of public concern – and to make recommendations for law reform. In recent years, with the blurring of the public-private distinction, it is increasingly common for public authorities to commission private consultants to review operations and report on means for improvement.

Within the Commonwealth Attorney-General’s portfolio alone, there are a number of bodies besides the department providing specialist advice – among them the Administrative Review Council, the Family Law Council, the Human Rights and Equal Opportunity Commission, and the Model Criminal Code Officers Committee. The Corporations Law Economic Reform Project (CLERP) and the tax law simplification project are also, effectively, specialised law reform bodies.

Writing at the dawn of the law reform era in 1970, Professor Geoffrey Sawer¹ noted that the ‘new principle’ of law reform involved a body with four attributes:

• permanent;

• full-time;

• independent; and

• authoritative.

‘Permanence’ may be somewhat less assured than it might have appeared to Sawer in 1970, when new commissions were being established, budgets were flush, and lists of exciting topics for inquiry were long. Commissions have been closed in a few jurisdictions, and others struggle to maintain viability with limited staff and financial resources. What is clear is that law reform commissions are no longer seen as compelling support by reason of their existence – they must compete for support (public, governmental, judicial and professional) and demonstrate that they are special and essential for proper public policy formation.

A critical factor in winning and maintaining that respect is a law reform commission ensuring that its scholarship is absolutely first class. Reform work should always proceed from a meticulous treatment of black letter law and a clear understanding of the surrounding process – only after which it is possible to consider intelligently the possibilities for reform, and to make recommendations which are realistic and achievable. Even if its recommendations are not taken up quickly by government, a commission report on a given topic should have independent value as an authoritative text.

It is also fundamental that a law reform commission maintains its independence. This refers to its intellectual independence – the ability to make research findings and offer recommendations without fear or favour. Without this essential quality, a commission is no different from a government department, management consultancy or professional association. Whether or not there is public confidence in the genuine independence of a law reform commission determines whether members of the public, the legal profession and others will take the time and trouble to provide evidence, make submissions, comment on drafts, respond to discussion papers, and otherwise cooperate in the law reform process.

To Sawer’s 1970 list, I would now add four more essential characteristics for a contemporary law reform commission. It must be:

• generalist;

• interdisciplinary;

• implementation-minded; and

• consultative.

I have already indicated the great proliferation and dispersal of law reform activity in Australia, most of it in the hands of ad hoc committees or specialist bodies. Thus, one of the most important contributions a standing law reform commission can now make is to remain a generalist body, endeavouring to:

• work in any area of law or procedure, when asked, and making a virtue of this dexterity;

• monitor all of the dispersed activity (and perhaps play a coordinating, or at least a clearing house, role);

• provide some coherence to the general project of law reform;

• promote harmonisation or complementarity of laws and processes, which is especially necessary in Australia’s federal system; and

• transcend categories which may be narrowed by specialist bodies – to recognise that, say, ‘family violence’ cuts across criminal law, family law, housing law, social security law, and administrative law (inter alia), and involves questions of state and federal law, and court and tribunal processes.

The complexity that all of this implies means that law reform commissions also have to see their research as having an important interdisciplinary dimension. It may be that some references will be devoted primarily to technical legal matters (or ‘lawyer’s law’), which do not go much beyond the cases and statutes. However, some, and certainly the most interesting, inquiries, will involve complex issues at the intersection of law and social policy.

Law reform commissions will not always be able to maintain all of the necessary expertise inhouse, of course, and specialist expertise can be contracted where appropriate. However, a good law reform commission should contain at least some staff members who are comfortable working with social science materials and methodologies – and certainly some who have strong empirical research skills. Policy-making in law traditionally has relied far too much on anecdote or notorious cases, and far too little on detailed and comprehensive empirical research. When such research is undertaken, it is interesting how often the received wisdom is challenged.

The extent to which a law reform commission can influence policy, and maintain public confidence and the respect of government, is substantially dependent upon its ability to craft recommendations which are practical and susceptible to ready implementation. This requires a clear sense of both the possibilities and the limitations of law reform. The current political era is one in which public sector funding is highly contested (if not in actual decline), and deregulation (usually accompanied by industry codes) and privatisation have dispersed power and responsibility.

Thus, a law reform commission must think very carefully about any recommendation that entails increased public expenditure – and, far more than was the case some years ago, must spell out very clearly the precise amounts, offsets and cost-benefit equations involved. Similarly, recommendations increasingly will be directed at entities other than government and will involve proposed actions other than enacting or amending legislation. For example, properly targeted recommendations may ask industry or professional groups to develop new or better practice standards or to mount education and training programs.

Finally, one of the key defining characteristics of a law reform commission is that it operates fully in the public domain. A commitment to undertaking extensive community consultation as an essential part of its research program is ultimately what distinguishes a law reform commission from most other bodies which have a law reform aspect to their work.

Endnotes

1. G Sawer ‘The legal theory of law reform’ (1970) 20 University of Toronto Law Review 183, at 183.