Weisbrot, David --- "Comment" [2000] ALRCRefJl 19; (2000) 77 Australian Law Reform Commission Reform Journal 1

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Reform Issue 77 Spring 2000

This article appeared on pages 1 & 88 of the original journal.

Comment

The Commission has been delighted to host regular visits from overseas delegations seeking to learn more about the law reform process and the Australian legal system generally. Recent visits have included a large group of Swedish parliamentarians, and some senior lawyers from Indonesia.

Apart from the pleasure of exchanging ideas and experiences with colleagues from other countries, the need to explain the role and value of a law reform commission clearly and concisely – to people who don’t have direct knowledge or expectations of this type of institution – and to answer some hard questions, has the added benefit of periodically forcing us to think again about what we do and why.

A common question is how a law reform commission differs from a government department in its handling of issues. The short answer is that a law reform commission: (a) operates almost entirely in the public domain, with a premium placed upon public consultation, (b) in areas that require a substantial research effort, and (c) where the government of the day has not already determined the policy outcomes.

Looking back over the 25 year history of the Australian Law Reform Commission (ALRC), it is possible to characterise references as broadly falling into three different types of projects. The first category includes those inquiries that may be said to involve issues of ‘technical’ or ‘black letter’ law. In these, interest and submissions come primarily from specialist legal and industry groups, and media coverage is limited – although the ultimate consequences of reform may have wider social effects.

Examples of this sort of inquiry include the current reviews of the Marine Insurance Act 1909 (Cth) and the Judiciary Act 1903 (Cth), as well as previous references on choice of law rules, archives, admiralty law, evidence, customs and excise, foreign state immunity, and the service and execution of process. Recommendations for reform in these areas generally involve proposals for the enactment or amendment of legislation or rules and regulations.

The second category contains those inquiries that are focused more on legal and justice policy than on the technical aspects of law. Examples include the Commission’s current work on civil and administrative penalties; the recently completed reviews of the federal civil justice system (see the Managing Justice report, ALRC 89) and the Proceeds of Crime Act 1987 (Cth); as well as previous references on sentencing, privacy, freedom of information, collective investments (eg superannuation), criminal investigation, standing in public interest litigation, product liability, informed decision making in medical procedures, domestic violence, and debt recovery and insolvency. These projects generally attract a wider audience and media coverage, and reform recommendations tend to involve changes to public policy and processes, as well as to legal instruments.

The third category contains those projects that are broadly ‘socio-legal’ in nature. Although there may be complex issues of law involved, the essence of reform turns on reconciling competing social and/or economic interests, or seeking to redress historical disadvantage or grievances, or modernising the law to catch up with changing social attitudes or structures (nationally or internationally), or with new technology. Examples include the Commission’s work on children and the legal process, multiculturalism and the law, recognition of Aboriginal customary laws, gender equality before the law, guardianship and management of property, and human tissue transplants.

Inquiries in these ‘cutting edge’ areas tend to excite by far the most interest from the general public and the media. Because the issues spill out beyond the confines of the formal legal system, recommendations for reform also tend to be broad ranging, often going beyond legislative activity to include government action, inter-departmental coordination and protocols, educational initiatives, research programs, and so on.

Following a recent announcement by the federal Attorney-General and the Minister for Health, the ALRC and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC) will soon commence work jointly on a fascinating project looking at some of the ethical and legal implications arising from genetic testing and the collection and use of human genetic samples and information.

Among other things, there are important issues of privacy and anti-discrimination to be considered in relation to employment; health, including medical research, pharmaceuticals and health administration; insurance and superannuation; and law enforcement. Although the terms of reference have not quite been finalised at the time of writing, judging from the number of inquiries from individuals, interest groups, and journalists, public interest in this inquiry will be very strong.