Weisbrot, David --- "Comment" [2009] ALRCRefJl 28; (2009) 94 Australian Law Reform Commission Reform Journal 3

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Reform Issue 94 Summer 2009

This article appears on pages 3–5 of the original journal.

Comment

By Emeritus Professor David Weisbrot AM, President ALRC

It is almost impossible to believe, but this is the 20th opening Comment for Reform that I have written. Perhaps even more impossible to believe, these will be my final comments, since I will be stepping down on 30 November 2009 after more than 10 years as President of the Australian Law Reform Commission (ALRC).

The first edition of Reform was launched in January 1976 by the then Chairman of the ALRC, Justice Michael Kirby, who said the publication was ‘designed to inform readers in an entirely informal way of the developments relevant to the reform of law in Australia’. Justice Kirby noted that:

‘To escape irrelevance law reform must go out to the society it serves. In particular it must seek the participation and interest of the profession. It is usual to say that such a news sheet as this will only be as good as its contributors. But take heart. Remember this: it is designed to be read and thrown away. In due course, if a printing facility is acquired, a proper format will be designed and glossy photographs of persons prominent in law reform may even be introduced.’

The contents of that first edition included a summary of work-in-progress at the various Australasian law reform agencies and overseas developments (similar to what is now ‘Reform Roundup’); a list of recent law reform publications and various other bits and pieces. It was 16 pages long.

Reform has grown and developed over the ensuing three decades, with the editorial quality consistently excellent, but the production standards rising dramatically during that period. It is unlikely that many readers actually treated Issue No 1 as a disposable item; certainly it is now the case that Reform sits proudly on the shelves in offices and libraries around the world.

No doubt Reform will continue to improve and evolve. Kirby’s 1976 comment hinted at the link between advances in information and communication technologies and the production and dissemination of the journal and its contents. I would be surprised if, in future years, Reform does not take advantage of the opportunities of the electronic age, and utilise to a much greater degree the distribution and interactive capabilities of the internet, the ALRC’s own increasingly sophisticated website, social networking sites, forums and blogs, and so on. At the moment, each issue of Reform is a wonderful resource—but a static resource. In future, I can easily see the major articles in Reform, written by the leading authorities in their fields (and it is rare for someone to decline an invitation to contribute) serving as a point of departure, stimulating interesting conversations, comment, criticism and debate across the community, rather than standing alone as an end in themselves.

The first edition of Reform with which I was associated focused on ‘Arrivals and Departures: Issues in Immigration Law’ (Issue 75, Spring 1999), and owed much to the insights and pre-eminent expertise in that field of my then colleague, Dr Kathryn Cronin—an ALRC Commissioner and, later, Deputy President—who is a now a leading London barrister specialising in human rights, migration and refugee claims, especially those involving children.

Since then, issues of Reform have been dedicated to such important themes as: ‘Globalisation and Law Reform’ (No 76); ‘On the Bench: Perspectives on Judging’ (No 77); ‘Federalism and Regionalism’ (No 78); ‘The Challenge of the New Genetics’ (No 79); ‘Indigenous Customary Law’ (No 80); ‘Older People and the Law’ (No 81); ‘National and International Security’ (No 82); ‘Women in the Law’ (No 83); ‘Tribunals’ (No 84); ‘Media and the Courts’ (No 85); ‘Sentencing’ (No 86); ‘Corporate Social Responsibility’ (No 87); and ‘Juries’ (No 90).

Perhaps it is only that they are among the most recent issues, and thus most fresh in my mind, but I am particularly proud of the issues on ‘Life, Law and Leisure’ (No 88, 2006); ‘Water’ (No 89, 2007); ‘Animals’ (No 91, 2008); ‘Children and Young People’ (No 92, 2008); and ‘Native Title’ (No 93, 2009).

All of these issues featured exceptionally strong content and production values, as well as provoking a great deal of discussion in the media and in the general community. For example, Dr Caroline West’s article in Reform No 88 on ‘The definition of the good life’ spawned a fascinating national discussion through the media about Australians’ attitudes to work and leisure—and in particular whether we work too many hours and in far too conventional a manner. (It probably didn’t hurt for promotional purposes that some media outlets misreported Dr West’s floated suggestion of a five-hour work day as an ALRC recommendation to Government!)

Issue 89 on ‘Water’ featured one of the most striking cover images ever used for Reform, as well as a wonderful lead article by Australian dramatist, actor, comedian and broadcaster John Doyle. Entitled ‘100 years of mad ideas: The destruction of the Murray-Darling’, this article could be taken for a brilliant piece of satire—were it not so strikingly, and tragically, accurate. The remainder of this Issue explores a range of critical concerns about water law, policy and management on the world’s driest continent.

The special edition on ‘Animals’—or more precisely animal law and welfare—also captured the public imagination, with such an unprecedented response that we abandoned our normal commercial practice and made the issue immediately available, in full, on the ALRC’s website. My own comment that animal welfare may well become ‘the next great social movement’ has been quoted very extensively in Australia and overseas—and normally with approval, although occasionally there is the strange suggestion that concern for animals must come at the expense of people and take precedence over human rights, as if humanitarianism is a zero-sum game. In this Issue, we had the enormous honour and pleasure of securing an introductory article by Professor John Coetzee, the world-renowned novelist, critic, translator and Nobel Prize winner in Literature. (This led to some lively discussion within the ALRC about which of us would be brave enough to edit the work of a Nobel Laureate. In the event, of course, there was not even a single word we considered changing.)

In Reform No 92, the ALRC took the opportunity to reflect on what had happened—and even more significantly, what had not happened—in the decade following the release of the report Seen and Heard: priority for children in the legal process (ALRC 84, 1997), which considered Australia’s obligations as a party to the International Convention on the Rights of the Child. The Issue contained a star-studded list of authors, including the Chief Justice of the Family Court of Australia, the Hon Diana Bryant, Federal Court Justice Susan Kenny, NSW Commissioner for Children and Young People Gillian Calvert, juvenile justice experts Rob White and Jenny Bargen, and the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma.

However, most of the extensive media reaction was prompted by the sobering assessment provided by the National Children’s & Youth Law Centre’s James McDougall, Tiffany Overall and Peter Henley, whose review of the past decade indicated a disappointing lack of progress in many areas. For example, the ALRC’s recommendation to establish a dedicated Children’s Commissioner had been taken up in some states and territories, but not at the federal level. More worrying, the review found that: (a) only 5–10% of court case charges of child sexual assault are finalised, with only half of those resulting in conviction; and (b) the number of children Australia-wide in need of protection more than tripled over the decade, from almost 92,000 to more than 309,000. Hopefully, Reform No 92 served to rekindle the public debate about children in the legal system in such a way as to preclude another decade of inaction—there is no doubt that child protection and juvenile justice are areas in critical need of better policy, practice and resourcing.

Reform No 93, published earlier this year, focused on ‘Native Title’—the vexed, complicated and controversial system through which Indigenous Australians can approach the courts to reclaim title to their customary lands and waters. This volume is certainly the most artistically accomplished of the nearly 100 editions of the journal to date, with a strikingly brilliant cover and interior graphic design work provided by David Williams and his team at Gilimbaa. Neither is the artwork let down by the editorial content. The Issue contained a majority of Indigenous authors, providing special expertise on the difficult legal, social, economic and environmental issues involved, as well as personal insights and passion. For example, it is impossible to read Monica Morgan’s article ‘What has native title done for me lately?’ without feeling the frustration, sorrow and pain that comes with losing a native title claim in the courts, after already having lost your country through colonial appropriation.

Two other articles on native title prompted a great deal of media coverage and public debate. Tom Calma’s scene-setting introductory piece frankly described the ‘failing framework’ of the current native title system, notwithstanding the ‘good intentions’. The article by the Chief Justice of the High Court of Australia (and former ALRC Commissioner), the Hon Robert French, also candidly acknowledges the legal and practical difficulties facing Indigenous parties to a native title claim, and offers ‘some modest proposals for improvement’—including, controversially, the possibility of reversing the burden of proof in such cases.

This edition of Reform, No 94 ‘Housing’, focuses on one of the most pressing issues facing the nation today, the ability to provide adequate housing for all Australians. Federal Government initiatives in this area are outlined by the responsible Minister, the Hon Tanya Plibersek MP. Australian Human Rights Commission President, the Hon Catherine Branson, and her colleague Dr Cassandra Goldie assess the human rights implications of the national housing strategy, while Adam Farrar (NSW Federation of Housing Associations) considers the ramifications of a policy shift to community housing options. Various aspects of homelessness are debated by Robin Banks (Public Interest Advocacy Centre) and Chris Hartley (Homeless Persons’ Legal Service), Karen Wilcox and Ludo McFerran (Australian Domestic and Family Violence Clearinghouse), and Rebecca Reynolds (Twenty10). Respected Aboriginal community leader Tom Slockee provides a personal perspective on Indigenous housing, drawing on his lengthy experience in this field. Chris Lamont (Housing Industry Association) discusses housing affordability, while Ian Winter (Australian Housing and Urban Research Institute) calls for more informed and constructive debate around the social objectives of land use planning. Other articles discuss reforms required in the areas of tenancy rights (Deborah Pippen, Tenants’ Union ACT); and housing for the elderly (Susannah Sage Jacobson, Public Interest Law Clearing House of Victoria). The final article on this subject, by academic Graeme Wiffen, discusses the tensions that often arise in practice between providing housing and preserving heritage.

I want to take this last opportunity to acknowledge and thank the many Commissioners and staff of the ALRC who have contributed to Reform during the past decade, especially those involved in the less glamorous but no less important aspects of production, such as identifying and liaising with authors, editing copy and proofreading (and proofreading and proofreading some more). Finally, enormous thanks must go to the legion of people—from Australia and overseas; from other parts of government; from the judiciary, the legal profession and other professions; from industry and commerce; and from the universities, schools and the general community—who have written articles for Reform, or suggested themes, or maintained a subscription, or otherwise engaged with the ALRC in its inquiry work and community education efforts.

I began my Comment piece 20 editions ago, in Reform No 75 (Spring 1999), by remarking that:

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.

I am no less in awe of the institution a decade later, and can now appreciate even more the depth of the honour and the degree of trust.