CHAPTER 2
The ALRC's role, structure and reputation
Australian Law Reform Commission (ALRC)
2.1
The ALRC was established in 1975. It is a statutory agency operating
under the Australian Law Reform Commission Act 1996 (ALRC Act). This
chapter provides background information in relation to the legislation
establishing the ALRC, and the ALRC's role and functions.
ALRC's role
2.2
The Attorney-General may refer a matter to the ALRC, either on the
Attorney-General's own initiative or at the ALRC's suggestion.[1]
2.3
Section 21 of the ALRC Act sets out the functions of the ALRC in respect
of matters referred to it by the Attorney-General. Those functions include:
(a)
to review Commonwealth laws relevant to those matters for the purposes
of systematically developing and reforming the law, particularly by:
(i)
bringing the law into line with current conditions and ensuring that it
meets current needs; and
(ii)
removing defects in the law; and
(iii)
simplifying the law; and
(iv)
adopting new or more effective methods for administering the law and
dispensing justice; and
(v)
providing improved access to justice;
(b)
to consider proposals for making or consolidating Commonwealth laws
about those matters;
(c)
to consider proposals for the repeal of obsolete or unnecessary laws
about those matters;
(d)
to consider proposals for uniformity between state and territory laws
about those matters; and
(e)
to consider proposals for complementary Commonwealth, state and territory
laws about those matters.
ALRC's current structure
2.4
Under the ALRC Act, the ALRC is composed of a President, a Deputy
President and at least four other members, appointed by the Governor-General.
While the President and Deputy President must be full-time members, other members
may be either full-time or part-time members. A vacancy in the membership does
not invalidate the ALRC's actions.[2]
2.5
The ALRC Act provides that members of the ALRC must meet certain
application criteria, namely the person must be:
(a)
a judge or justice of a Federal Court, or of the Supreme Court of a state
or territory; or
(b)
is, and has been for at least five years, a legal practitioner of the
High Court, or of the Supreme Court of a state or territory; or
(c)
a graduate in law of a university, with experience as a member of the
academic staff of a tertiary educational institution; or
(d)
in the Governor-General's opinion, suitable for appointment because of
the person's special qualifications, training or experience.[3]
2.6
Members may be appointed for a period not exceeding seven years, and are
eligible for reappointment.[4]
Part-time commissioners may be appointed for a period or for a specific
inquiry.[5]
President
2.7
The ALRC's Background Submission to this inquiry provided the following
summary of the President's position:
The role of the ALRC President is to take overall
responsibility for the ALRC's governance and for the strategic development of
the organisation, to facilitate the participation of part-time Commissioners,
and to assist the full-time Commissioners with high level policy formulation
and analysis involved in a particular inquiry. The ultimate responsibility for
ALRC reports and law reform recommendations is with the President. The
President is the ALRC's representative to the Parliament and to the Government,
and also the key spokesperson regarding the ALRC's work to the community, the
legal profession, to industry stakeholders and to the media.[6]
Commissioners
2.8
The ALRC currently has one full-time commissioner – the President,
Professor Rosalind Croucher – who was appointed on 14 December 2009 for a five-year
term. The office of Deputy President has been vacant for much of the last ten
years, and was last occupied from December 2005 to September 2006. There are
four part-time commissioners, all of whom are judges of the Federal Court of
Australia.[7]
2.9
In its submission, the ALRC set out the 'distinct but complementary
roles' of full-time and part-time members in terms of their contribution to
inquiries:
...the standing practice is that references are managed by
individual, full-time Commissioners as Commissioners in charge of particular
inquiries...
The role of the full-time Commissioner, in consultation with
the President, is to provide leadership, direction and day-to-day management to
a legal team for a particular inquiry and to lead the formulation of the final
recommendations made in the inquiry...
The principal role of a part-time Commissioner is an advisory
one for ALRC inquiries. These members assist the ALRC in identifying the key
issues involved in a particular inquiry, and provide advice in the research and
consultation effort, and in the process of formulating final recommendations.
They are generally appointed on the basis of their recognised eminence and
expertise in their respective fields. In addition to their direct contributions,
the standing and connections of part-time Commissioners can assist the ALRC
identify and obtain access to persons and information relevant to its
inquiries.
...part-time Commissioners do not have financial or administrative
responsibilities, nor do they assume responsibility for direction of a
reference or the day-to-day management of inquiries. The time that these
members can devote to inquiry work is very limited, constrained by their
employment on a full-time basis elsewhere – for example, as judges, academics
and legal practitioners.[8]
Board of Management
2.10
The ALRC is a Commonwealth authority subject to the accountability and
governance arrangements in the Commonwealth Authorities and Companies Act
1997 (CAC Act).[9]
2.11
The ALRC Act provides for a Board of Management which must manage the
ALRC and ensure that it performs its functions effectively and economically.
The Board consists of the President, Deputy President and other full-time
members. The President is the Chief Executive Officer (CEO) and is, under the
Board, responsible for the management of the ALRC.[10]
2.12
Currently the President, being the only full-time member of the ALRC, is
the only Board member.
ALRC's structure after 1 July 2011
2.13
The Financial Framework Legislation Amendment Act 2010 (FFLA Act)
made various changes to the ALRC's structure, which will take effect from 1 July 2011.
The main purpose of the changes is to move the ALRC to governance arrangements
consistent with government policy on statutory bodies, as set out in the Governance
Arrangements for Australian Government Bodies. This policy was issued in
2005 following the Review of Corporate Governance of Statutory Authorities
and Office Holders (Uhrig Review).
2.14
The changes will move the ALRC from operating under the CAC Act to the Financial
Management and Accountability Act 1997 (FMA Act), by replacing the existing
Board of Management with an executive management model with the President as
CEO. The Attorney-General will also be able to:
-
establish, appoint members to and dissolve a management advisory
committee to advise the President on issues relevant to the proper discharge of
the ALRC's functions; and
-
give written directions to the President with respect to the
administration of the ALRC.[11]
2.15
Other changes include:
-
removing the office of Deputy President;
-
limiting the number of members of the ALRC to seven (that is, the
President and not more than six other members); and
-
allowing the Attorney-General to appoint part-time commissioners
(this is now done by the Governor-General).[12]
Conduct of inquiries and other work
2.16
The ALRC conducts extensive research and consultation to support any
recommendations that it ultimately makes. It typically produces consultation
documents as part of the inquiry process. According to submissions, thorough
consultation is a key factor in the high public standing of the ALRC's work.[13]
For example, in the privacy inquiry (reported August 2008), the ALRC produced
two issues papers, a discussion paper and a final report, received 585
submissions and held 250 face-to-face meetings.[14]
2.17
Beyond its immediate inquiry-related work, the ALRC contributes to
broader legal policy development and community engagement with government
through:
-
public outreach activities;
-
collaboration with other Australian and overseas law reform
bodies;
-
monitoring the implementation of recommendations; and
-
acting as a clearinghouse for information relating to law reform
in Australia.[15]
ALRC's reputation
2.18
The ALRC's work is widely respected and its recommendations have a high
rate of take-up by government. To 30 June 2010, the ALRC has produced 77 reference-related
reports.
2.19
The majority of submissions and evidence provided to the committee
praised the work of the ALRC and the manner in which it conducts inquiries. For
example, the Law Council of Australia summarised the value of the ALRC's work:
The Law Council considers that the ALRC provides an
outstanding contribution to Federal law reform in Australia. The ALRC
consistently conducts comprehensive inquiries and produces informative, well
researched and well written reports. The ALRC's recommendations to government
are generally sound and reasonably appropriate to the issues identified by the
inquiry.[16]
2.20
Witnesses outlined to the committee the high regard in which the ALRC
inquiry process is held. For example, Mr Edward Santow, CEO of the Public Interest
Advocacy Centre (PIAC), explained to the committee:
I would say that we do not always agree with the ALRC. PIAC
is a human rights oriented organisation. We do not feel that we get an easy
ride with the ALRC. Indeed, while we agree with many of its recommendations,
there are some that we very strongly disagree with. Nevertheless, we have long
respected the integrity and processes that the ALRC carries out...[17]
2.21
Submissions also highlighted the quality of ALRC publications, noting
that they are often authoritative statements on the law in specific areas. In
particular, Professor Bryan Horrigan provided the committee with an extensively
referenced table setting out the High Court citations of ALRC publications for
the period 2007-2010.[18]
The submission of the Northern Territory Law Reform Committee (NTLRC) provided
an example of the value of the ALRC's work to that small, voluntary organisation:
...the [NTLRC] places considerable reliance upon the work
undertaken by larger, funded commissions, particularly the Australian Law
Reform Commission (ALRC). The [NTLRC] has, in the past and for the foreseeable
future, considered and adopted many recommendations contained in ALRC reports
for the benefit of the Northern Territory. These reports are extensive and well
considered, enabling the [NTLRC] to rely upon this work and apply it in the
context of the Northern Territory.
A significant example is the comprehensive ALRC Uniform
Evidence Law Report (ALRC 102, 2005), which [the NTLRC] believes will
ultimately be adopted by all States and Territories in Australia. Indeed the
Northern Territory has recently released an exposure draft Evidence (National
Uniform Legislation) Bill 2010, which is based on the model bill produced by
the Standing Committee of Attorneys-General following the tabling of ALRC 102.
It is anticipated that the Bill will be introduced into the Northern Territory
Legislative Assembly during 2011.[19]
2.22
Internationally, the ALRC is also held in high regard. The New Zealand
Law Commission (NZLC) stated in its submission that Australia is one of the
leaders in the law reform movement in the British Commonwealth and the work of
the ALRC is of admirable quality.[20]
2.23
A number of submissions also referred to the high rate of implementation
of ALRC recommendations.[21]
According to the ALRC's 2009-10 Annual Report, 90 per cent of ARLC reports
have been substantially or partially implemented.[22]
According to the ALRC, this makes the ALRC 'one of the most effective and
influential agents for law reform in Australia'.[23]
2.24
However, the work of the ALRC goes beyond its inquiry function. The ALRC
also performs important education and outreach work. As the NSW Law Reform
Commission noted in its submission, the ALRC has played an important role in
providing support for Pacific regional law reform bodies.[24]
2.25
The Attorney-General's Department submission highlighted the important
contribution of the ALRC, and noted that the ALRC has the government's support:
The Commission has conducted over 100 thoroughly researched
and comprehensive inquiries. Their highly regarded reports and recommendations
have made a large contribution to the law reform landscape to Australia. The
Department notes that the Attorney-General, the Hon Robert McClelland MP, has
stated the Government's strong support for the Commission's work and its
history of demonstrating insight, providing expert analysis and having a
practical grasp of law reform.[25]
2.26
However, the committee also received a number of submissions which were
critical of the work of the ALRC. For example, the Non-Custodial Parents Party
(NCPP) stated in its submission that it did not support the view that the ALRC
is making a positive contribution to Australian law. Citing two recent
inquiries by the ALRC, Family Violence: A National Legal Response and Secrecy
Laws and Open Government in Australia, the NCPP's submission stated that
the concerns it raised during those inquiries were 'simply noted but not acted
upon' or 'glossed over'.[26]
2.27
The committee notes these criticisms. However, the committee agrees with
the comments of Professor Rosalind Croucher, President of the ALRC, that it is
a 'given...that the ALRC has a high reputation for producing high quality, well
researched and well documented reports [and] that what [the ALRC has] done has
been done extraordinarily well'.[27]
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