Weisbrot, David --- "Comment" [2005] ALRCRefJl 19; (2005) 87 Australian Law Reform Commission Reform Journal 2

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Reform Issue 87 Summer 2005/06

This article appeared on pages 2 – 3 of the original journal.

Comment

By Professor David Weisbrot, President, ALRC

Major law reform commission projects tend to be generated by one of several phenomena:

• older laws requiring modernisation (for example, the ALRC reviews of the Marine Insurance Act 1909 and the Judiciary Act 1903);

• developments in science and technology (for example, the ALRC inquiries into genetic privacy and discrimination and into gene patenting and human health); and

• changing social and political attitudes.

Modern examples of the latter phenomenon—especially in relation to shifts in social attitudes and understandings—include law reform efforts to: recognise the property, parental and other rights of de facto partners; decriminalise homosexual relations between consenting adults; provide increased protection against domestic violence; provide more information about their biological parentage to adopted children and those whose births were aided by third party donors or assisted reproduction technology.

Significant shifts in political attitudes and practices also ripple through the legal system, requiring refinements in some areas and basic rethinking in others. In the past decade, one of the most fundamental changes in the liberal democracies—especially pronounced in English-speaking countries, including Australia—has been the shift away from the comprehensive social welfare state towards a more deregulated and privatised model of governance.

Among other things, the new system features lower levels of taxation, the total or partial withdrawal of government from some fields, and a much greater emphasis on self-reliance and individual (or perhaps familial or communal) responsibility.

In Sydney, home base for the ALRC, controversy erupted this year over the use of Public-Private-Partnerships (or PPPs) for major infrastructure projects, such as new highways and tunnels. Under these PPPs, the financial risks of borrowing, building and operating are shifted from government to the private sector. There is also a perception among some policy makers that, with the incentive of profit, private enterprise is more likely to be innovative and efficient.

However, such partnerships often involve the alienation of public land for private or semi-private purposes; lower levels of accountability and transparency; and perhaps some distortion of policymaking in the public interest, where options may be implemented based on potential profitability rather than on other social imperatives (such as equitable access or environmental sustainability). Following the current controversies, there is little doubt that many issues have been raised about the intersection of social policy and commercial best practice in these projects, and thought will have to be given to improving this articulation.

Another emerging area for examination and experimentation is the concept of corporate social responsibility, or ‘CSR’—the special theme for this issue of Reform.

Given the increasing reliance on market mechanisms in liberal economies (new and old), corporations now play a key role beyond the purely commercial sphere. In part, this involves no more than good corporate citizenship: ensuring that a company operates in a legally sound manner, meeting its fiduciary obligations to shareholders, fulfilling its reporting obligations, paying its fair share of taxes, and so on.

However, as the Australian Government’s Corporations and Markets Advisory Committee has noted:

‘The success of the corporate entity as a vehicle for harnessing capital and human, physical and intellectual resources to productive ends has resulted in it becoming the predominant form of private sector business organisation and one that is frequently adopted for state-owned bodies as well.’¹

With this economic dominance has come calls for the modern corporation to take responsibility for more than the maximisation of profit by all legal means, and to embrace an ethical dimension that considers the social and environmental impact of its operations—or the so-called ‘triple bottom line’.

Within the private market for legal services, and with the added responsibilities incumbent upon professionals, lawyers and law firms also have become increasingly conscious of the need to provide pro bono legal services—whatever the level of publicly funded legal aid that is available. When former Australian Attorney-General Daryl Williams QC convened the First National Pro Bono Conference in Canberra in August 2000, it was notable that besides the evidence of significant scattered activity and the high level of good will, only a handful of the large corporate law firms could claim to host major, well-organised, pro bono programs. By the time of the second national conference in Sydney, in October 2003, it was difficult to find a large firm that did not operate a respectable pro bono program (at least).

In order to facilitate even greater pro bono efforts by the private legal profession, a National Pro Bono Resource Centre was established in 2002 with Australian Government funding. That federal funding was renewed in May 2005 for a further four years, and a funding commitment for the same period was recently announced by all of the Australian states and territories—an excellent example of a Public-Private Partnership with a social justice mission.

Finally, it is worth commenting on the cover design of this issue of Reform, which provoked some lively discussion within the ALRC. There was some concern that the image might be seen as too negative or cynical, recalling Dickensian times. However, the prevailing interpretation—and the one we hope you share—is that while the image may suggest a past age of irresponsibility, it brings to mind the possibility of something better in the future.

Endnotes

1. Corporations and Markets Advisory Committee, Corporate social responsibility (Discussion Paper, November 2005) v.