AUSTRALIAN LAW REFORM COMMISSION THE PROMISE OF LAW REFORM EDITED BY DAVID WEISBROT AND BRIAN OPESKIN CHAPTER 30. ARE WE THERE YET? Thirty years on The establishment of the Australian Law Reform Commission (ALRC) on 1 January 1975, twenty years after the Indian Law Commission and ten years after the Law Commissions in the United Kingdom, constituted an important step for Australian law. As this book shows it is timely, and useful, to pause and reflect. To see where we have come from; where we are; and where we may possibly go. I am reasonably well placed to tackle the first two topics. I was there at the creation of the ALRC, taking up office as the first Chairman (as the office was then called in the original Act1). As a lawyer, appellate judge and citizen I have watched the progress of the Commission since I left it in 1984. I have its reports close by on my shelves and often use them in my judicial work. However, the future is another country. To answer the question "Are we there yet?", it is necessary to have a conception of where "there" is. This book gives a number of signposts. 1 Law Reform Commission Act 1973 (Cth), s 12. 2. Maddeningly, some of them appear to point in opposite directions. Such is the nature of institutional law reform. The ALRC did not arise without forebears. This was no virgin birth. It was conceived as a natural result of the process of institutional reform that had been going on in the legal systems of England and its progeny for centuries. The year 2004 was the bicentenary of the French Civil Code. The codifiers, urged on by Napoleon, conceived of the noble idea of re-expressing and simplifying the vast body of earlier law, so as to make the law more understandable and accessible to ordinary people2. The example of the French codifiers was an inspiration for Jeremy Bentham and J S Mill in England. Their writings, in turn, promoted parliamentary revision of English law. It led to a great era of codification that remains an inspiration for codifiers in all parts of the world3. In Australia, systematic law reform began in the nineteenth century in a rather modest way in the work of individual scholars like Dr Hearn, the "hopeful Hamurabi" at the Melbourne Law School4. But it was the establishment of the Law Commissions, and especially the 2 R Macdonald, "Continuity, Discontinuity, Stasis and Innovation", above 99 at 100. 3 Sir Edward Caldwell, "A Vision of Tidiness: Codes, Consolidations and Statute Law Revision", above 51 at 54. 4 M Tilbury, "A History of Law Reform in Australia", above 15 at 19. 3. English Commission under Lord Scarman, that triggered the move for substantial institutional bodies in Australia, beginning with the New South Wales Law Reform Commission in 19665. This was the point at which I became involved. It has been described as a "golden age" of law reform in Australia6. Certainly, the proliferation of federal, State and Territory institutions, and their growing spirit of cooperation and interaction, made it an exciting time - one full of optimism, idealism, hope and confidence. I can well remember the extremely modest circumstances in which the ALRC began its work. For the first weeks, it was confined to the anteroom of the judicial chambers of the Federal Judge in Bankruptcy, in Sydney. However, without exception, the initial appointees were people of great energy and dedication. We worked well as a team. We enjoyed a strong collegial spirit that is essential to an effective law reform institution7. Soon premises, a first class staff, an excellent library and challenging references from the Federal Government put the ALRC on the national radar. The process of growth, adaptation and change goes on to this day. I will always be grateful that I was privileged to be there in the exciting days when this new and bold experiment in the law was initiated. 5 Ibid, 21. 6 Id, 26. 7 K Warner, "Institutional Architecture", above 67 at 70. 4. It should not be thought that everyone, at the time, welcomed institutional law reform. Many high ups were unenthusiastic about too much change in the law. They looked with suspicion on "those who are paid to be reformers"8. I was certainly paid my judicial salary. I had not expected to be doing the work of law reform. But three elements in my life and experience gave me special enthusiasm for the new tasks. The first was the instruction I had received in my legal education from Professor Julius Stone concerning the policy choices inherent in judicial and other legal decisions. Stone had a profound influence on me and on many Australian lawyers of my generation. Secondly, my eyes had been opened to the defects of the law in operation when, as a young legal practitioner, I acted in pro bono causes for Aboriginals, conscientious objectors, anti-war demonstrators and the like. Law on the ground suddenly seemed quite different from law in the books. And thirdly, my own experience as a homosexual person taught me that law could sometimes be oppressive, unjust, cruel. Human motivation is a complex thing. Each one of us in institutional law reform in those golden days had our own reasons for involvement. For me, it was never a purely theoretical or analytical challenge. Law affected intimately the lives of people. To reform it, and 8 Sir John Young, "The Influence of Minority" (1978) 52 Law Institute Journal (Vic), 500 cited Warner above n 7, 76. 5. thus to make it better, it was essential to consult the "usual suspects" - judges, legal practitioners, public officials and institutions. But it was also important to consult ordinary people. They would offer perspectives that would refine and strengthen our proposals. Moreover, the very process of consultation would build a momentum that would protect the ALRC against the risks of bureaucratic and political indifference when the reports were finally written and tabled in the Parliament. Consultation Probably the most original "value added" of the ALRC - and its chief contribution to the law reform technique in the years after its establishment - was its emphasis on public consultation. Apart from everything else, because of my own life's experience, I was curious to hear from other people, living and working in Australia, about aspects of the law that they perceived as seriously unjust. If I could have such experiences, surely others could do so in those areas of the law that affected them. If others with power, including legal power, were blind to the injustice of the law they administered as if affected me, perhaps there were areas of the law of which I was ignorant, or to which I was indifferent, that could be revealed in the voices of ordinary citizens, to help me and other law reformers to remove affronts to justice that had lasted too long. In the result, this happened. 6. In the ALRC report on Criminal Investigation9, our public hearings heard the voices of Aboriginals, ethnic minorities, women, people in remote parts of the country, police and criminal accused and others describing the unjust operation of the law in ways that were eye- opening. They definitely affected the ALRC recommendations and the methodology that spread to all of its projects. It is true that the early references to the ALRC (and references in the same decades to other Australian law reform agencies) concerned social justice topics that were susceptible to lay community input10. On the other hand, an investigation of aspects of the operation of the Judiciary Act 1903 (Cth) is not likely to promote, or need, the same number of community submissions as an inquiry into the law governing complaints against police11 or human genetic data12. So much is obvious13. 9 ALRC 2, (Interim) 1975. 10 M Neave, "Law Reform and Social Justice", above 371 at 382. 11 ALRC 1, 1975. See also Complaints Against Police (Supplementary Report), 1978 (ALRC 9). 12 Essentially Yours: The Protection of Human Genetic Information in Australia, 2003 (ALRC 96). See also Genes and Ingenuity: Gene Patenting and Human Health, 2004 (ALRC 99). 13 I Davis, "Targeted Consultations", above 161 at 161; A Rees, "Strategic and Project Planning", above 131 at 137.. 7. In tasks of a highly technical legal operation, well targeted consultations addressed to experts who have studied and reflected on the operation of the law will sometimes be more useful than public comments. Nevertheless, the general commitment to involving ordinary citizens - and to consulting far and wide and beyond judges, lawyers and public institutions - undoubtedly played a significant role in the life of the ALRC and other Australian agencies that copied its techniques. The process of widespread consultation was a reminder to the expert participants in the ALRC of the need to step beyond an elitist and purely lawyerly approach to law reform14. Sometimes it added perspectives that the experts had missed it or identified sensitivities that need to be addressed. Occasionally it repaired the imbalances between the well organised lobby groups and the interests of ordinary people15. It provided a forum to test expert ideas in civil society and to question intelligent laymen about their views and experience. Above all, it was a new scene: judges, lawyers and professors asking those affected about the law and how it could be made better. The ALRC technique symbolised its commitment to a non-elitist approach to law reform. It gave the agency a high public profile that 14 Macdonald, above n 2, 101; N des Rosier, "Leadership and Ideas: Law Reform in a Federation", above 247 at 252.