Weisbrot, David --- "Comment" [2005] ALRCRefJl 1; (2005) 86 Australian Law Reform Commission Reform Journal 2

---

Reform Issue 86 Winter 2005

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

Comment

By Professor David Weisbrot, President, ALRC

Milestones are typically a cause for reflection and celebration. This year, the Australian Law Reform Commission (ALRC) celebrates its 30th anniversary with a gala dinner in Sydney on 9 June 2005—following a day-long symposium on ‘The Promise of Law Reform’, which brings together leading figures in law reform from Australia and overseas.¹

Institutional law reform commissions first made their appearance in the United Kingdom in 1965, and quickly spread throughout the Commonwealth to the Australian states and territories, New Zealand and the Pacific Islands; Canada; parts of Asia; the Caribbean; and Eastern and Southern Africa.

The creation of the ALRC in 1975 coincided with a larger societal change in thinking about law and law reform. Until the mid-1960s, work by state law reform committees had largely focused on aspects of ‘black letter law’, which were seen to be the province of judges and lawyers. However, the mood of the community had begun to shift in the 1960s, demanding more opportunities for direct participation in the democratic process, and greater accountability and transparency of public institutions.

Similarly, there was a growing sentiment that our laws and legal institutions should be ‘relevant’, reflecting contemporary conditions and community attitudes. This saw the federal government give the ALRC references with a strong social policy emphasis, leading to reports on: complaints against police; alcohol, drugs and driving; insolvency and bankruptcy; human tissue transplants; privacy; defamation; sentencing; insurance; child welfare; and the recognition of Aboriginal customary law.

The establishment of institutional law reform commissions in the 1960s and 1970s fits snugly within the ‘modernist’ project of that era, which featured:

• the strong faith in ‘progress’ through specialist expertise and technocratic solutions;

• the view of law as a neutral technology, providing solutions as applicable to the problems of Indigenous communities and the Third World as to those of advanced, industrialised societies; and

• the belief that government can, and should, play a central organising role in such activities.

Thus, it is no surprise that around the same time the ALRC was established, Australia also saw:

• the creation of the Human Rights and Equal Opportunity Commission (HREOC) and the Commonwealth Ombudsman’s office;

• the establishment of the Federal Court, the Family Court, and the Administrative Appeals Tribunal;

• the assumption of federal responsibility for legal aid, as well as the advent of Aboriginal legal services and the community legal centres movement; and

• the signing of the Optional Protocol to the International Court of Justice, as well as a range of major human rights and anti-discrimination treaties.

Writing at the start of the modern law reform era in 1970, Professor Geoffrey Sawer observed that this development reflected the ‘qualitatively new principle ... that the whole body of the law stood potentially in need of reform, and that there should be a standing body of appropriate professional experts to consider reforms continuously’.²

For Sawer, this ‘new principle’ of law reform should be embodied in a commission with four distinguishing characteristics: permanent; full-time; independent; and authoritative.

To this list, I would now add four more essential characteristics for a contemporary law reform commission: generalist; interdisciplinary; consultative; and implementation-minded.

To some extent, these additional attributes simply elaborate upon Sawer’s basic group. However, these additions also reflect, in substantial part, the changing political and social climate in which the law reform process operates. Under this ‘post-modern’ sensibility:

• there are doubts about the ‘traditional certainties’ and a questioning of traditional authority, including public (and legal/judicial) institutions;

• there is a greater appreciation of the complexity of social institutions and problems, including the fact that there may be intractable competing interests for which no easy compromise or consensus solution is possible;

• power is seen to be much more diffused, and not entirely invested in the formal organs of government;

• governments are not necessarily seen as central to the solution of all social problems, with a preference for private sector or community-based strategies in at least some circumstances;

• there is greater reluctance to see all disputes as ‘legal’ disputes; and

• there is an increasing clamour for mechanisms that enhance opportunities for genuine public participation in civil society and in public policy making.

As a consequence, there is greater scepticism of blockbuster legal solutions, with a preference for more textured, holistic strategies that place greater emphasis on process, education, communication, and the allocation of responsibility to a variety of stakeholders.

In an earlier era, the centrepiece of any significant law reform effort was the recommendation of a new piece of legislation or major amendments to existing law. However, modern law reform efforts are more likely to involve a mix of strategies and approaches, including legislation; new dispute resolution options; codes of practices; education and training programs; better coordination of governmental (and intergovernmental) programs, and so on.

Institutional law reform owes its existence to the modernist project of the post-World War II era, embodying the optimistic view that all challenges, including legal and social ones, could be met by the judicious application of specialist expertise and technology.

The ALRC proudly can boast of significant contributions in:

• rationalisation of the law in some key areas—such as through the development of the uniform Evidence Act;

• promoting open and accountable government—through the development of Freedom of Information laws and better archives legislation;

• modernising the law to accommodate new technology and circumstances—such as through its pioneering work on human tissue transplants, genetic privacy and discrimination, and gene patenting;

• promoting access to justice—through its work on the federal civil justice system and pro bono practice; and

• highlighting areas of human rights and social justice—such as the recognition of Aboriginal customary law, the rights of the child, gender equality, and multiculturalism.

Consequently, it can be argued that institutional law reform has provided an intelligent voice and been a positive influence on the progressive development of the law in Australia. It is less easy to argue that it has been (or could have been) successful as an agent for social transformation.

Ironically, the next 30 years should demonstrate that institutional law reform may be even better suited to the post-modern environment, given its capacity for: providing independent, contestable advice for governments; managing complex empirical and interdisciplinary research; incorporating the community desire for direct participation in decision making; and developing sophisticated (and non-legislative) strategies for dealing with issues, involving the multiplicity of stakeholders.

Endnotes

1. An edited collection of essays on this topic will later be published by The Federation Press.

2. G Sawer, ‘The Legal Theory of Law Reform’ (1970) 20 University of Toronto Law Review 183.