QUT Digital Repository: http://eprints.qut.edu.au/ White, Benjamin P. (2005) Consultation, commissions and context : a comparative study of the Law Commission and the Australian Law Reform Commission. PhD thesis, University of Oxford. © Copyright 2005 [please consult the author] CONSULTATION, COMMISSIONS AND CONTEXT: A COMPARATIVE STUDY OF THE LAW COMMISSION AND THE AUSTRALIAN LAW REFORM COMMISSION BEN WHITE TITLE: CONSULTATION, COMMISSIONS AND CONTEXT: A COMPARATIVE STUDY OF THE LAW COMMISSION AND THE AUSTRALIAN LAW REFORM COMMISSION NAME: BEN WHITE COLLEGE: UNIVERSITY COLLEGE DEGREE: DPHIL IN LAW SUBMITTED: HILARY 2004 ABSTRACT This thesis compares the consultation conducted by the Law Commission (‘LC’) and the Australian Law Reform Commission (‘ALRC’). Its first goal is to describe the process in detail, which begins with the purposes of consultation. Next, the process of consultation is described with a discussion of each of the techniques employed by the Commissions. Although there is much overlap in how the LC and the ALRC consult, they do approach the exercise differently and these differences are discussed. The description of the Commissions’ consultation concludes by examining its impact. A second goal is to compare the two Commissions’ approach to consultation and this comparison is aided by the development of two models: the English Commission’s expert model of consultation and the Australian Commission’s more inclusive model. Underpinning the comparison between the two Commissions and these different models is the intended target of the consultation exercise. It is argued that the LC’s decisions are motivated by the goal of securing expertise, more than is the case at the ALRC. By contrast, the Australian Commission is influenced more than is its English counterpart by a desire to include as many consultees as possible. An important part of this comparative study is to explain why the two Commissions consult differently. The most significant reasons are the history of two Commissions, especially the role of the founding Chairmen, and the types of projects that the Commissions undertake. A third goal, albeit only a tentative one, is to suggest ways in which the Commissions could improve their consultation. These comments are scattered throughout the thesis, but one theme that emerged was that there seems to be insufficient thought given to a number of important stages in the consultation process. - ii - TABLE OF CONTENTS TABLE OF CONTENTS v CHAPTER 1: INTRODUCTION 1 1. Why the Law Commission, the Australian Law Reform Commission and Consultation? 1 2. Literature Review 5 2.1 Three Categories of Literature 5 2.1.1 Calls for a Commission 6 2.1.2 Introducing the Commissions 8 2.1.3 Critiquing the Commissions 11 2.2 Two Important Works 20 2.3 Reflections on the Literature 26 3. Goals and Arrangement of Thesis 31 CHAPTER 2: THE COMMISSIONS IN CONTEXT 34 1. Introduction 34 2. Establishing the Commissions 34 3. Functions 36 4. Source of Projects 38 5. Composition 40 5.1 Structure 40 5.2 Commissioners 43 5.3 Staff 45 6. Constitutional Role 46 7. Other Features 47 8. Context 49 9. Conclusion 53 CHAPTER 3: METHODOLOGY AND TERMINOLOGY 54 1. Terminology 54 1.1 Consultation 54 1.2 Types of Consultation 58 1.3 Models of Consultation 60 2. Preliminary Comments on Method 63 2.1 Empirical Qualitative Research 63 2.2 A Comparative Study 64 2.3 Values in Consultation 65 2.4 General Limits 68 3. Access 71 4. The Interviews 72 4.1 The Sample 72 - v - 4.1.1 Sampling Strategies 72 4.1.2 Representativeness of the Sample 76 4.2 The Interviews 82 4.2.1 Administration 82 4.2.2 Format of Interview 85 4.2.3 Assessing the Interviewees 89 5. The Analysis 93 5.1 The First Phase 93 5.1.1 Transcribing 93 5.1.2 Coding 94 5.1.3 Summarising 96 5.2 The Second Phase 97 5.2.1 Rationale for Second Phase 97 5.2.2 Selection of Interviewees 98 5.2.3 Transcribing, Coding and Summarising 99 5.3 The Master Summaries 100 5.4 Periodic Reflection 102 6. Other Empirical Research 104 6.1 Documents 104 6.2 Meetings 105 7. Testing Validity with Interviewees 107 7.1 The Draft Thesis 107 7.2 Ongoing Correspondence 112 8. Ethical Considerations 113 CHAPTER 4: INFLUENCES ON THE CONDUCT OF CONSULTATION 115 1. Introduction 115 2. Contrasting Influences 116 2.1 History 116 2.2 Project Topics 120 2.3 Generalist Commissions 128 2.4 The Constitutions 130 2.5 Society and Geography 132 2.6 Conclusion 133 3. Similar Influences 134 3.1 Composition of Commissions 134 3.2 Other Influences 139 4. Relationship with Government 141 4.1 Introduction 141 4.2 Influences on Relationship 142 4.2.1 Constitutional Role 142 4.2.2 Other Factors 147 4.3 The Actual Relationship 150 4.4 Encouraging Government to Consult 157 5. Conclusion 158 - vi - CHAPTER 5: THE PURPOSES OF CONSULTATION 162 1. Introduction 162 2. Clarity of Purpose 163 3. The Purposes 169 3.1 Better Reports 169 3.2 Reception of Reports 172 3.3 Principled Purposes 177 3.4 Promoting the Commission 179 4. Conclusion 180 CHAPTER 6: THE PROCESS OF CONSULTATION 191 1. Introduction 191 2. Overview 191 3. Tailoring Consultation 195 4. Project Launch 198 5. Lists of Consultees 199 5.1 General Lists 199 5.2 Project Specific Lists 202 5.2.1 Compiling the List 202 5.2.2 Membership of List 206 6. Reaching Additional Consultees 215 7. Consultants 221 8. Introductory Letter 228 9. Early Informal Consultation 228 10. Publications 230 10.1 Types of Publications 230 10.2 Format of Publications 234 10.3 Distribution of Publications 238 11. Travelling Consultations 245 11.1 Public Hearings 246 11.2 Other Travelling Consultations 254 12. Other Formal Consultation 256 13. General Informal Consultation 258 14. Empirical Research 263 15. Processing Consultation Results 265 16. Contact with Consultation 270 17. Who is Consulted 273 17.1 General Consultees 273 17.2 Consultation with Government 278 17.3 Evaluation of Consultees 280 18. Reflecting on Consultation 284 19. Conclusion 285 - vii - CHAPTER 7: THE IMPACT OF CONSULTATION 292 1. Introduction 292 2. The Impact of Consultation 293 2.1 Better Reports 294 2.2 Reception of Reports 300 2.3 Principled Impacts 308 2.4 Promoting the Commission 310 2.5 General Evaluation of Consultation 310 3. Persuasiveness of Consultation 313 3.1 Approach to Consultation 314 3.2 Persuasive Arguments 317 3.3 Identity 318 3.4 Numerical Support 320 3.5 Other Factors 325 4. Factors Other Than Consultation 326 5. Conclusion 331 CHAPTER 8: OTHER CONSULTATION ISSUES 339 1. Introduction 339 2. Project Selection 339 2.1 Reference Projects 340 2.2 Programmes of Law Reform 346 2.3 Other Sources 351 3. Post Report ‘Consultation’ 354 4. Conclusion 361 CHAPTER 9: CONCLUSION 364 1. Two Models of Consultation 365 2. Comparative Analysis 370 3. Consultation in Context 374 4. Improving Consultation 379 APPENDICES: BIBLIOGRAPHY AND TABLES 386 1. Bibliography 386 1.1 Books, Articles and Reports Cited 386 1.2 Cases Cited 400 1.3 Legislation Cited 400 1.4 Commission Reports Cited 401 1.4.1 LC Reports 401 1.4.2 ALRC Reports 403 1.4.3 Other Commission Reports 405 1.5 Other Sources Cited 405 2. Complete List of Reports from 1990 to Present 407 2.1 LC Reports 407 2.2 ALRC Reports 411 - viii - 3. Tables 414 3.1 Tables of Interviewees 414 3.1.1 Table 2: LC Interviewees 414 3.1.2 Table 3: ALRC Interviewees 417 3.1.3 Table 4: Other Interviewees 420 3.2 Tables of Internal Documents Analysed 421 3.2.1 LC Documents 421 3.2.2 ALRC Documents 423 - ix - - x - CHAPTER 1: INTRODUCTION 1. WHY THE LAW COMMISSION, THE AUSTRALIAN LAW REFORM COMMISSION AND CONSULTATION? The Law Commission (the ‘LC’) and the Australian Law Reform Commission (the ‘ALRC’) make recommendations to their respective Governments about the reform of particular areas of the law. Once an area is identified as appropriate for the Commissions to consider, the LC and the ALRC rigorously investigate and then publish a report with recommendations as to how any problems can be remedied. One of the important components of this investigation is a consultation exercise where interested parties are invited to give their views on the area of law being considered. This thesis explores and compares how this consultation process occurs at the LC and the ALRC. Investigating the consultation conducted by these Commissions is an important and worthwhile exercise. Both Commissions are relatively influential bodies. Although concerns are expressed sometimes about the slow rate of implementation of their recommendations, the LC and the ALRC have produced many reports that have prompted changes to the law. According to the Commissions’ Annual Reports, the most recent figures indicate that over two-thirds of LC and ALRC reports have had been implemented or at least - 1 - CHAPTER 1: INTRODUCTION partially implemented.1 Some of this legislative success has also been in important areas. Probably the best example of this is the LC’s significant contribution to English family law. But the number of reports implemented is not the only measure of the Commissions’ influence.2 As permanent bodies charged with keeping the law up to date, they have increased the profile of the law and its reform. Lawyers, and indeed some ordinary citizens, now have a greater awareness of the particular legal issues that the Commissions have investigated. Further, it was suggested by some of those interviewed for this thesis that the role of law in society and the means by which it can be changed is also more widely known.3 In addition, the LC and the ALRC have made a contribution to the law as an academic discipline.