Finlay, Anne --- "Alrac 2002 - Expansion or Contraction" [2002] ALRCRefJl 25; (2002) 81 Australian Law Reform Commission Reform Journal 59

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Reform Issue 81 Spring 2002

This article appeared on pages 59 – 62 of the original journal.

ALRAC 2002 – expansion or contraction?

The biennial Australasian Law Reform Agencies Conference (ALRAC) was held in Darwin in June 2002. Professor Anne Finlay, Commissioner of the Australian Law Reform Commission, reports on the proceedings of the conference.

Following the precedent established at ALRAC 2000, Commonwealth and Hong Kong law reform agencies joined their Australasian counterparts at ALRAC 2002 in Darwin.

The theme of the conference, Expansion or Contraction, allowed delegates to consider the history of law reform together with the role of and influences on reform in the new century. A common theme to emerge from many parts of the Commonwealth was that law reform had been through a difficult period during the 1990s, but that in many of those jurisdictions where agencies had been abolished or had faced budget cuts, there was renewed appreciation by government of the value of independent, systematic law reform.

In some jurisdictions, law reform institutes, with links to universities and the professions and sometimes with government support, have been established to fill the void left by the loss of a standing reform agency. Institutes have been established in British Columbia and Tasmania and there are moves to found an institute in South Australia which has never had a formal law reform commission.

Many papers highlighted the distinctiveness of law reform commissions from other agencies engaged in law reform.

The founding Chairman of the Australian Law Reform Commission, the Hon Justice Michael Kirby of the High Court of Australia, addressed the conference by way of video link-up in an interview format answering questions posed by the Dean of Law at Macquarie University, Professor Ros Atherton. Justice Kirby addressed the topic, Law Reform Agencies – Do we need them?

Law reform and social policy

Social policy and law reform emerged as one of the major issues – and points of debate – during the conference. In his Keynote Address, Law Reform Issues for the 21st Century, the Hon Lord Gill, Lord Justice-Clerk of Scotland and Chairman of the Scottish Law Commission, contended that law reform agencies should confine their activities to ‘black letter law’ and that issues of law reform in contentious areas of social policy were better left to others such as politicians.

Both the President of the Australian Law Reform Commission, Professor David Weisbrot, and the Hon Justice Bruce Robertson, President of the Law Commission of New Zealand, rejected this approach. Professor Weisbrot argued that most inquiries “and certainly the most interesting ones will involve complex issues at the intersection of law and social policy”. He suggested further that “the ability (and flexibility) to assemble and manage a strong multi-disciplinary research team” was one of the qualities that could distinguish law reform commissions from other agencies or committees that might also be engaged in examining the law.

Value of standing law reform commissions

Professor Weisbrot’s paper, What is the Value of a Full Time Standing Law Reform Commission? focussed on the attributes of independence, quality scholarship, extensive public consultation, corporate memory and cost effectiveness. He noted that while law reform is now a crowded field in Australia, a development which “is not a bad thing”, the value of standing law reform commissions came from their:

• permanence;

• independence;

• authoritativeness;

• community education role;

• emphasis on public consultation;

• interdisciplinarity;

• ability to tap specialist expertise; and

• attention to implementation.

In emphasising the value of independence, Professor Weisbrot suggested, “sitting and former judges, and leading practitioners and scholars would never volunteer their services to an agency under the control of the executive”.

Justice Robertson posed the question “what makes law commissions different from other entities?” and argued that it was both their access to government and their distance from it that allowed commissions to “ask harder, deeper and more complex questions which are of central public interest”. Justice Robertson used the New Zealand Law Reform Commission’s current reference, a wholesale review of the structure of courts in that country, to highlight ways in which the project, together with the first of three papers issued on the topic, encapsulated his vision for the “singular role of law commissions”. He suggested it was the “combination of public funding and independence” that meant law reform commissions “have a particular responsibility to identify critical issues, think broadly and deeply, and involve the public in a more independent way than those who have to keep their eyes on the ballot boxes”.

Professor Ralph Simmonds, Chairman of the Law Reform Commission of Western Australia, in his paper, Modernising Reforming National Law: Back to the Future? The Case for Another Institution, noted that Western Australia had had a law reform body since 1968 with at least some full-time staff since 1972. He said that while the Commission “had a history of activity and success ... there were unmistakable signs of loss of momentum in more recent years”. In particular he suggested that in the mid 1990s “the Commission had seen a clear weakening of governmental support”. Professor Simmonds indicated that the Commission has been engaged in reform of itself and that its next step is to have non-lawyer representation on the Commission. The process has begun with the appointment of Special Commissioners for the current reference on Aboriginal Customary Law.

Professor Simmonds also put the argument for the establishment of an Australian Academy of Law modelled on the American Law Institute that would work towards ‘legal improvement’ in ways that might not translate into discrete reform proposals. (The ALRC proposed the establishment of such an Academy in ALRC Report 89, Managing Justice.)

Reconsidering some basic questions

Professor Marcia Neave, Chairperson of the new Victorian Law Reform Commission, argued that law reform agencies in the new century would need to address four important issues if they were to continue to play a significant role. In her paper, Law Reform in the Age of Managerialism, Professor Neave suggested agencies would need to:

• consider how to respond to demands for greater accountability, often reflected in numerical performance indicators poorly suited to measuring the success of law reform initiatives;

• emphasise the role which institutional law reform can play in the building of a more deliberative democracy;

• justify the preservation of the independence of institutional law reform bodies, despite the trend towards centralising power in executive government;

• respond to the influence of international instruments on the content of domestic law, a fact that could make state and even federal law reform bodies increasingly irrelevant.

The Honourable Justice Dean Mildren of the Northern Territory Supreme Court, in his paper, Getting Justice Right, said it was a good time to reconsider some basic issues about law reform. First, while noting the arguments for commissions to work exclusively on government references, he suggested agencies should be able to work on projects which lack government support if they believe them to be worthwhile, although he cautioned against going too far because lack of visible results could affect credibility. Second, he suggested that agencies should have the power to reject a government reference if they considered it:

• likely to be too time consuming and beyond their resources;

• “plainly too controversial and political for a report to resolve”;

• likely to be “divisive within the body itself”;

• needing “an understanding of other disciplines which the body is unable to probe adequately”; or

• on analysis, does not involve law reform at all.

Justice Mildren then suggested it was “time to question whether law reform bodies should be solely the work of lawyers”. He argued for the inclusion of non-lawyers noting that law reform “should not become too focused on problems which have specific importance to lawyers”. His Honour suggested that where a problem involves an understanding of an industry, agencies should go beyond just consulting widely, and include an eminent person from that industry. On the question of whether serving judges should be involved, Justice Mildren noted their considerable involvement in most Australian agencies but, while acknowledging “the experience of the judiciary is a resource which law reform agencies should have access to”, argued that “law reform is too important for the majority of the work to be left to part-timers”. He suggested a solution might be to encourage retired judges and practitioners to take on the role.

The New South Wales Director of Public Prosecutions, Nicholas Cowdery QC, in his paper, Getting Justice Wrong, suggested that the work of a properly structured law reform agency “is inconsistent with ad hoc law reform for short term political gain” and that “long term justice comes a distant last in the political priorities”. The DPP argued that “law reform agencies are a good idea” but asked “how can they be made to work effectively and assist to prevent us from getting justice wrong?” Mr Cowdery instanced a recent NSW Law Reform Commission report on the right to silence which he said had provided “groundbreaking” but “carefully considered and explained” recommendations had been “slashed to pieces by the politicians”.

He then provided some examples of what he considered lost opportunities for beneficial reform. Mr Cowdery argued that drug law reform is “exactly the sort of issue where objective, comprehensive research and cool, deliberative consideration of all relevant factors should be allowed to lead to reasoned recommendations for legislative action”. However, he suggested that while ever a commission may act only on a government reference, this was unlikely to occur. The DPP instanced forensic science as a further area in which too little attention had been paid by lawmakers. He called for a national approach in the development of standards for forensic testing and the presentation of such evidence to the courts.

Agency reports

A feature of ALRAC conferences is the agency reports in which each of the attending agencies reports to the conference on their activities since the last conference. About 20 agencies reported on their recent activities and current enquiries.

There were reports from all Australian states and mainland territories, except South Australia, but Victoria, with two standing reform bodies, the Victorian Law Reform Commission and the Victorian Parliament Law Reform Committee, reported twice. As well as a report from the Australian Law Reform Commission, there were reports from a number of national law reform commissions including the Law Commission for England and Wales, the Scottish Law Commission, the Law Commissions of Canada and of New Zealand and commissions from Sri Lanka, Namibia, South Africa, Tonga, and Hong Kong. The Corporations and Markets Advisory Committee, an independent, standing research body that advises on reform to Australian company and financial laws, noted its activities.

This session demonstrated the variation in the activities of agencies. Some commissions work exclusively on references from the government; others include inquiries inititiated from within the commission itself. Some agencies work on a small number of matters at any one time; others have an agenda that includes consideration of reform of many areas of law.

Law reform in the Northern Territory

The conference provided an opportunity for a number of speakers from the host jurisdiction to discuss law reform and legal issues in the ‘Top End’. The Chief Executive Officer of the Northern Territory Department of Justice, Richard Coates, suggested the recent change of government in the Territory after 27 years of conservative government “provides the opportunity to engage with the community in innovative and challenging ways of ‘doing justice differently’ ”. He described the reform agenda of the new government and the ways it could “address therapeutic, restorative justice and customary law processes”.

The Honourable Justice Howard Olney of the Northern Territory Supreme Court, in his paper The Evolving Law of Indigenous Land Claims, identified “some of the highlights and the lowlights of the evolutionary process” of indigenous land rights in Australia. Justice Olney considered the developments in the 30 years since the Gove Land Rights case concluding with the view that “as some of the uncertainty associated with native title claims is removed the greater will be the prospect that claims can be settled by Indigenous Land Use Agreements without the intervention of costly and time consuming litigation”.

Tom Pauling QC, the Solicitor-General of the Northern Territory, provided a compelling illustration of the difficulties faced in reconciling customary law with white man’s law. Mr Pauling’s paper, The Sacred Dilly Bag, told the story of the deliberate damage to the sacred dilly bag of a North East Arnhem Land clan by its custodian who then fled to Darwin in fear of his life. What followed was an illustration of the failure of either side to deal effectively with the matter.

Moves to form an association

At ALRAC 2000 in Perth, there was discussion about the formation of an Association of Commonwealth Law Reform Agencies. The Perth conference voted to appoint a steering committee to progress the matter. The Darwin conference decided to continue their work. A small working group will develop proposals for consideration at a meeting associated with the next Commonwealth Law Conference, to be held in Melbourne in March 2003.