Impact of budget cuts – full-time commissioners and staffing
In its Background Submission, the ALRC set out the cuts to its budget in
recent years. In addition to the government's two per cent efficiency dividend,
the ALRC has had a $0.242 million reduction in its budget in 2010-11, and
further reductions of $0.495 million per year will be made over the forward
estimates period (from 2011-12 to 2013-14). The ALRC states in its Background
Submission that the $0.495 million reduction in the budget represents a 20 per
cent reduction on 2009-10 levels.
The ALRC noted that a reduction of this magnitude is significant for a
small organisation and, as a result, the ALRC has had to reduce expenditure
significantly in a budget that has little capacity for savings:
Currently 80% of the ALRC's annual expenditure is in salaries
(60.31%) and accommodation (19.35%) with little room in the budget to make
savings. Other operational costs such as those associated with consulting,
publishing reports and other operational requirements constitute a small
proportion of the total budget (14%) so that even significant savings made in
these areas have little impact on the budget bottom line.
At the committee's first public hearing, Professor Rosalind Croucher
illustrated the impact of the budget cuts by reference to the Black Knight in Monty
Python and the Holy Grail:
After he lost one arm defending his turf he said, ''Tis but a
scratch'. After the other one was lopped off, 'Just a flesh wound'. After both
his legs departed similarly, he still managed to say, defiantly, 'The Black
Knight always triumphs'. It is ridiculous, but somehow fitting. The real
reduction in the budget — not just the efficiency dividend, I am talking about
the significant 20 per cent reduction in recent years — makes us feel like that
However, despite the difficulties in finding savings, the ALRC outlined
in its Background Submission the steps that it has taken to reduce expenditure,
delaying the appointment of full-time commissioners;
reducing the number of staff;
removing the public information and educational services program
(in particular, discontinuing the publication of the ALRC's bi-annual journal Reform);
changing the processes for the conduct of inquiries to reduce the
number of consultation publications per inquiry, making resources available
only in soft copy or on a cost recovery basis, and reducing the cost of
The impacts of these strategies were the subject of submissions and evidence
to the committee. The first two strategies mentioned above are discussed in
this chapter, while the remaining two are discussed in Chapter 5.
In addition, during the course of the inquiry, the committee was
informed that the ALRC would be moving from its current premises to
sub-licensed premises with the Australian Government Solicitor in April 2011.
That cost-saving measure is discussed in Chapter 5.
Delaying appointment of full-time commissioners
One of the key measures that the ALRC has put in place in order to save
money has been to delay the appointment of full-time commissioners. The ALRC's
Background Submission stated that since December 2009 there has only been one
full-time commissioner, the President, Professor Rosalind Croucher – as opposed
to having at least two full-time commissioners, as has been the case in the
past. The ALRC noted that this arrangement is a short-term strategy, reached
with the agreement of the Attorney-General's Department.
There are four part-time commissioners at the ALRC, who are all also
full-time judges of the Federal Court of Australia. As described in Chapter 2
of the report, full-time and part-time commissioners have 'distinct but
complementary roles', with full-time commissioners providing leadership, direction
and day-to-day management of the legal teams for inquiries; in contrast, the
principal role of part-time commissioners is advisory.
Submissions and evidence to the inquiry highlighted the important role
that full-time commissioners play in the law reform process. For example, Mr
Warwick Soden, Registrar and Chief Executive of the Federal Court, outlined the
central role of full-time commissioners in ALRC inquiries:
...There is no doubt in my mind, from my experience, that the
full-time commissioner – often an expert in law reform procedure as well as an
expert in the subject under reference – brings a rigour of process and a rigour
of thinking to the whole exercise that is, from my perspective, exponentially
greater than you see where very good work is done by others but just not at the
level that a full-time expert commissioner can bring to the process. It has
been my experience that the full-time commissioner often attacks some of the
hardest issues and the most difficult issues in a way which reflects their law
reform experience – that is, the logic of law reform, or what I call the
science of law reform – together with their...expertise in the field of law or
the area under inquiry.
Submitters and witnesses strongly advocated the need for more full-time
commissioners to be appointed to the ALRC.
For example, the New South Wales Law Reform Commission (NSW LRC) argued that
the present structure of the ALRC, with the President simultaneously managing
the organisation and leading two references inquiries, is a situation requiring
at least an additional full-time commissioner.
The submission of the Federal Court of Australia expressed doubts as to
whether, without sufficient and adequately resourced full-time commissioners,
the ALRC can 'maintain the kind of consultation on which the high quality of
the published work of the ALRC depends'.
The Hon. Justice Hammond of the New Zealand Law Commission (NZLC) stated that
he did not think that an organisation with only one full-time commissioner constitutes
a law reform commission.
The committee questioned Professor Croucher on how she handles the
workload that has been placed on her:
It is impossible to be in three places at once. If you are
overseeing the inquiries as well as running the organisation, the team members
are not going to get the kind of close supervision that they were able to
secure and the leadership that they were able to have by having a dedicated
commissioner for each inquiry.
Professor Croucher outlined her view that the ALRC requires one
full-time commissioner per inquiry, in addition to the President.
The committee canvassed the opinion of witnesses as to the number of
full-time commissioners that are required at the ALRC. Mr Bill Rowlings of
Civil Liberties Australia submitted that there should be at least two full-time
Mr Edward Santow of the Public Interest Advocacy Centre (PIAC) believed that
two full-time commissioners would be the minimum number required in order to
run three concurrent inquiries. However, if the government were minded to
reduce the number of inquiries to two, then Mr Santow argued that 'you [could]
just about do it with one full-time commissioner'.
Board of Management
The Rule of Law Institute of Australia raised with the committee the
very serious concern that it has regarding the operation of the Board of
Management of the ALRC in the situation where the President is the only
The ALRC Act provides for a Board of Management (Board) for the
Commission. The function of the Board is to manage the ALRC and, in particular,
to ensure that the ALRC performs its functions effectively and economically.
The Board consists of the President, the Deputy President and other full-time
members of the ALRC.
A consequence of the President being the only full-time commissioner of the
ALRC, is that the President is the sole member of the Board.
The committee has previously pursued the issue as to whether the ALRC is
validly constituted when it has only one full-time member. The advice of the
Department in relation to this matter is that the ALRC is not 'improperly
In its submission, RoLIA provided a copy of legal advice that it has
obtained on this issue. While the legal advice concurs with the Department's
assessment that the ALRC is properly constituted when it has only one member,
the RoLIA's legal advice raised concerns about the operation of the Board:
For the Commission to have a full time Commissioner as
President, but no Deputy President and no other full time members, in my
opinion, does not result in the Commission ceasing to exist as a matter of law.
However...for the Commission to have a lone full time
Commissioner as President, but no Deputy President and no other full time
members, leaves uncertainty about whether the President acting alone,
purporting to act as a Board, can properly satisfy the requirements of sections
30 and 31 in exercising the Commission's powers and performance of its functions.
In evidence to the committee, Professor Croucher stated that an audit
committee has been established to provide quality assurance checking of the
decisions she makes when acting in her capacity as the Board. The audit
committee is comprised of Professor Croucher, the executive director of the
ALRC and one of the standing part-time commissioners.
The committee sought the Department's view on this matter during the
hearing. The Department stated that, while the situation would be unusual in
the operation of a commercial company, the ALRC is not a commercial company.
The committee notes that the structural changes put in place by the FFLA
Act mean that, after 1 July 2011, the Board of Management will cease to exist
and will be replaced by a Chief Executive Officer and an advisory board.
Impact on Senior Legal Officers
The committee notes that it is not only the President of the ALRC who
has had increased responsibilities and workload in the absence of the
appointment of more full-time commissioners. In its Background Submission, the
ALRC noted that a direct consequence in the delay in appointing full-time
commissioners has meant that the workload and level of responsibility of Senior
Legal Officers at the commission has increased significantly.
Professor Les McCrimmon, a former full-time commissioner, described displacing
the role of commissioners to Senior Legal Officers as 'unsatisfactory':
Senior Legal Officers generally have responsibility for
researching and writing significant sections of consultation documents and
reports. Their detailed and time consuming involvement in specific aspects of
an inquiry makes it difficult for them to engage in the overall strategic
research planning and management of teams that an inquiry requires. This, in
turn, has a negative impact on the quality of ALRC reports and report
Responsibility for report
The NSW LRC expressed concerns that, in the absence of other full-time
commissioners, the President is placed in a very difficult position in bearing
the ultimate responsibility for signing off on report recommendations.
The ALRC Act provides for the establishment of Divisions for the
purposes of a reference which must comprise at least three members. The ALRC's
Background Submission provides the following information on the role of
In addition to meetings of the full Commission, the Act
permits, but does not mandate, the establishment of Divisions for the purposes
of individual references – for example, as structures for the making of policy
decisions about recommendations. Divisions...are subject to formal quorum
requirements and deadlock resolution mechanisms for the determination of
questions arising in the course of inquiries. In practice, however, members
assume collegial responsibility for the findings and recommendations in all
...Divisions, where constituted, have responsibility for
legal policy decisions relating to specific references.
According to the NSW LRC, previously, the President and at least one
other full-time commissioner was required to sign off on recommendations of the
ALRC. A third full-time commissioner was often involved or available for
consultation on each reference. The NSW LRC's submission outlined its concerns
that presently, with no other full-time commissioners, and part-time
commissioners having an advisory role, the President is the final arbiter of
recommendations made by the commission. The NSW LRC notes that this current
practice, initially meant as a savings measure until other full-time
commissioners could be appointed, will become embodied in the ALRC's structure
with the abolition of 'Divisions' from 1 July 2011, pursuant to the FFLA Act.
The NSW LRC noted that its concerns do not reflect on the actions or
abilities of the ALRC's President or staff, but rather is a concern about
structural issues which places the President in a 'very difficult and exposed'
In this regard, the committee notes the information in the ALRC's
Background Submission in relation to the expert advisory committees for
inquiries. These committees comprise eminent persons in the relevant field of inquiry,
to assist in policy analysis and the formulation of key recommendations.
On 11 February 2011, the day of the committee's first hearing for this
inquiry, the Attorney-General, in an opinion piece in the Australian
Financial Review, announced the appointment of a second full-time
commissioner to lead the ALRC's 'Review of censorship and classification'
inquiry (Classification inquiry).
In evidence to the committee, Professor Croucher expressed a preference
for the appointment of a standing fixed-term commissioner.
Further, while Professor Croucher noted that the appointment of experts for
specific inquiries can work extremely well, there are a number of significant
caveats to this:
First, there needs to be sufficient lead-time in planning an
inquiry to be able to identify the area of expertise needed, to find someone of
sufficient standing who may be available for an inquiry and to have sufficient
flexibility in start and end dates for them to be able to direct an inquiry
from start to finish – and, if necessary, to move to Sydney. If the appointment
is to be advertised, a further period of time needs to be factored in – at
least three to six months.
Second, it is not just about expertise...Subject-specific
people have to be trained up in the law reform processes, which usually takes a
whole reference cycle at least, by which time their expertise has runout, so to
speak. What standing full-time commissioners give the ALRC is intellectual
capital in law reform and clear independence in our tasks.
The committee accepts these caveats, but also notes that it received a
creative suggestion which may address some of the concerns in relation to the
appointment of inquiry-specific full-time commissioners. Professor Bryan
Horrigan suggested the possibility of appointing an academic expert identified
by the ALRC as an inquiry-specific full-time commissioner through the
Australian Research Council grant process. The outputs associated with any
relevant inquiry would form a core part of an overall research project.
When questioned on the proposed appointment of a full-time commissioner
for the Classification inquiry, Professor Croucher stated that it was 'better
The committee received a number of submissions highlighting the
important contribution that standing full-time commissioners can make to the
ALRC over the term of their appointment. For example, PIAC stated in its
...with different commissioners for every reference, the ALRC
loses the capacity to develop expertise in the law reform process itself, and
robs the ALRC of having senior staff with the appropriate corporate memory and
experience necessary to add to the learning experience of the organisation as a
Similarly, Professor Weisbrot noted his experience with standing
It is usually the case that a new Commissioner is initially
appointed because his or her expertise closely aligns with a particular current
inquiry. However, in my experience, it is always the case that the Commissioner's
performance in the job improves measurably over time, as they gain experience
with the institutional law reform process, even if subsequent inquiries are not
in their specialist field. (In fact, it may be that moving experts out of their
comfort zone is almost as critical to this improvement as the experience gained
with the process.)
It does not appear that responsibility for funding the proposed
appointment of a full-time commissioner for the Classification inquiry has been
settled between the ALRC and the Attorney-General's Department. In her opening
remarks to the committee, Professor Croucher indicated that the Commission did
not have the financial resources for a second full-time commissioner.
Professor Croucher stated that she has suggested to the Attorney-General that
the position should not be funded out of the ALRC's budget, but emphasised that
the appointment has only been discussed in general terms with the
The Department informed the committee that a second full-time
commissioner would cost $230,000 annually – for salary and on-costs.
The Department indicated that transitional funding will be provided to the ALRC
to cover the cost of the appointment of the second full-time commissioner until
the ALRC is in a position to take advantage of the savings from 'rationalisation
of rentals' and 'other budgetary strategies'.
The Secretary of the Department expressed confidence in the ALRC being able to
fund the position of a second full-time commissioner on its reduced budget
after this transitional period:
So while I appreciate that there has been some anxiety for
the commission as they look at this transition, I do think that their capacity
to live within their budget and to continue to have another commissioner
appointment, as has been announced today by the Attorney-General, for the
classification review is still completely manageable within their reduced
The committee also notes that correspondence between the
Attorney-General and the President of the ALRC, tabled at the Additional
Estimates hearing in February 2011 stated that the Attorney-General's
Department 'will assist with meeting the costs of this position'.
The committee notes further that during the course of giving evidence,
the Secretary of the Department expressed the opinion that there should be a minimum
of two full-time commissioners into the future because 'there will be at least
that many references coming through'.
In its submission, the Department noted that it has facilitated a number
of reforms to the ALRC's structure recently in an effort to support the
Commission in discharging its functions up to its historically high standards, despite
the pressures of the current fiscal environment. According to the Department, these
reforms have included facilitating the short-term appointment of part-time
Commissioners, targeted for their expert wealth of experience to provide advice
on specific references.
As the ALRC pointed out in its Background Submission, the description of
these positions as 'part-time' is a misnomer, as their role is principally
At the first public hearing, Professor Croucher outlined for the committee the
difficulties in quantifying the involvement of part-time commissioners in terms
of days per month:
It is a little bit difficult to pin it down like that. In
preparation for a meeting they will be reading all the material. They will be
participating in the meeting and they will provide follow-up comments – some
more than others depending on the nature of the inquiry. I have heard many times
the legal officers make the comment that the comments that part-time commissioner
Justice X made had been fantastically helpful – but it is at that very focused
time. They also get an opportunity to read the draft chapters of the
consultation documents and the reports. The ability to contribute there is also
Professor Croucher highlighted the 'extraordinarily valuable role that
part-time commissioners play'; however, the committee also notes Professor
Croucher's comments as to the limits of their involvement:
...part-time commissioners do not lead the consultations,
they do not lead the development of the research brief and they do not have
that kind of research writing and day-to-day management and leadership role.
Mr Warwick Soden, Registrar and Chief Executive Officer of the Federal
Court of Australia, explained to the committee that the Federal Court judges
working as part-time commissioners often had trouble making time in their
full-time judicial role for their commitments to the ALRC.
Mr Soden went on to explain that judges are not given time off from their
Federal Court role to perform their duties for the ALRC:
...each of the judges is responsible for managing and disposing
of all the cases allocated to them in the most efficient way that they can do
that. It is up to each judge to work out how to do that, what time it takes in
court, what time it takes out of court, what proportion of time needs to be
taken on judgments. We leave it to the judge to work out how that judge can make
time available for work related to the ALRC, and we support in principle the
time they take off, if I could describe it that way, from all that other work,
to do the work for the ALRC. But it is a matter for the judge to work out how
to do that. We support it.
The committee notes that witnesses who appeared at the hearings did not
believe that the appointment of part-time commissioners was a satisfactory
substitute for appointing full-time commissioners. For example, Mr Edward
Santow, CEO of PIAC, expressed the view that part-time commissioners could not
adequately fulfil the role played by full-time commissioners:
There have always been part-time commissioners who assist the
ALRC in its work. Often they are very eminent...The assistance they give on particular
issues is unquestionably invaluable; however, the need for a full-time
commissioner goes beyond providing assistance on particular issues. It is in
carrying out the consultative process more generally, in workshopping ideas and
in working through submissions. I fear that a part-time commissioner, or even
several part-time commissioners, would be unable to devote the time necessary
to make up for the absence of a full-time commissioner.
The ALRC's Background Submission outlined that another of the savings
measures it has taken is to reduce its complement of staff by not refilling
positions as they have become vacant. The following positions have not been
refilled: Legal Officer, Research Manager, Executive/Project Assistant,
Communications Manager and Publications Coordinator. The submission notes that
the duties of these positions have been allocated to remaining staff within the
organisation, and, as a result, the workload of all staff has significantly
The ALRC's submission outlines how staffing levels (full-time
equivalents (FTE), excluding statutory members) have decreased over the last
decade. In the financial year 2010–11 to date, the ALRC has had 16.2 FTE staff,
a figure which has decreased from 25 in 2000–01.
The ALRC estimates that it will continue with 16.2 FTE staff for the financial years 2011-12 to 2013-14.
At the hearing, Professor Croucher outlined for the committee her
preferred staffing levels. These staffing levels are based on the ALRC having
two concurrent inquiries (a so-called 'two inquiry model'):
The core complement, in my view, is one commissioner per
inquiry, in addition to the president, and eight to 10 legal officers at
different classification levels. The number allocated to each inquiry would
obviously depend on the complexity of the inquiry...Obviously the president
needs a certain flexibility in being able to bring on people short term on
contract as needs be for inquiries, but that is on top of what I have identified
as the core complement. In addition,...an inquiry team needs more than solely
legal officers. We need people to facilitate the administration of the inquiry,
to coordinate the publishing process and to manage the web interface – which is
increasingly important in our community engagement work – and the research
needs. Therefore the commissioner also needs an inquiry support team as an
integral part of the inquiry process.
In its Supplementary Submission, the ALRC submitted that a team of five
people is the 'absolute minimum' which would be required for the complementary
inquiry team. This should consist of an executive director; an information
manager; a website manager (handling online submissions, consultations,
discussion forums, inquiry blogs and newsletters); an inquiry coordinator; and
The ALRC has three ongoing inquiries listed on its website – 'Family
Violence and Commonwealth Laws'; 'Discovery of documents in Federal Courts'
(Discovery inquiry) and the Classification inquiry. The ALRC's current inquiry
'Family Violence and Commonwealth Laws' follows on from an earlier ALRC inquiry
into Family Violence which was finalised in November 2010. The Discovery
inquiry was due to report on 31 March 2011, and the committee understands that
this report has been forwarded to the Attorney-General. On 24 March 2011, the
ALRC received the Terms of Reference for the Classification inquiry. Professor
Croucher told the committee that, based on the current level of staffing, once
the Terms of Reference were provided for the Classification inquiry, the ALRC
could not commence work on that inquiry until the Discovery inquiry has
Professor Croucher noted that, on a previous occasion, the Department had also
assisted in providing a senior officer to commence work on the Discovery
inquiry while other staff were fully engaged in finishing another inquiry.
In its Supplementary Submission, the ALRC reiterated the point that
there is no further capacity for it to reduce staff and maintain its current
By far the biggest expense to the Commission is its inquiry
staff, and we rely on this staff to undertake the current workload and to meet
our deadlines. The ALRC has no further capacity to reduce expenditure if it is
to be able to discharge its current workload.
Mr Edward Santow from PIAC expressed concern that further reductions in
staff will compromise the independence of the ALRC:
...the ALRC will inevitably be more reliant on analyses from
stakeholders and especially, perhaps, well-funded stakeholders, because it
lacks the resources to do them internally.
The committee sought the view of the Department on staffing levels
within the ALRC. The Secretary of the Department informed the committee that
staffing levels in the ALRC have 'remained relatively constant':
Their staff complement or staff ratios have remained
relatively constant, actually. The staffing levels since 2004-05 have fallen
from, basically, a full-time equivalent of 18.05 to 16.2, which is not huge. Compared
with what has happened in the Attorney-General's Department over the last
little while, or Customs or any of those sorts of agencies, this is not a
massive decline in terms of the staffing complement. So I would have thought
that, if a person could manage within that envelope, a professional public
servant would be expected to manage their functions within that type of
The committee also questioned the Department on the observation contained
in the RoLIA submission that, while the ALRC has been losing staff, there has
been an increase in staff in the Department, from 760 to 1550, over the period
The Department indicated that its staffing levels increased as it took on new
I am sure you would be aware that most of that succeeded the
events of September 11, after which the department took on significant new
responsibilities for national security. These matters were of significant
concern to the previous government and continue to be for this government. Those
new functions for, first, national security and then later for emergency
management naturally came with resources.
...I think that the comparisons neglected to take into
account that the commission has continued to have one function throughout that
time, which is to do two references a year, whereas we have had significant new
functions for which we have been resourced.
High turnover of legal officers
In relation to both the commissioner position and legal officer
positions, Professor Croucher highlighted the advantages of maintaining the
'intellectual capital' of the ALRC:
The key point I would like to make is that the intellectual
capital of a standing law reform commission requires a core complement of both
commissioners and staff. The maintenance of that intellectual capital also
generates an enormous efficiency, where the ALRC is expert at the process of
law reform and, with its reputation and the standing of its commissioners, it
is able to leverage enormous expertise and contributions – all honorary – informing
the work and development of the recommendations for reform.
To this end, in addition to the issues raised in relation to the need
for more full-time standing commissioners to be appointed, concerns were raised
during the inquiry about the high turnover of legal officers at the commission.
Professor Croucher told the committee that only one legal officer
remains from the complement of 10 legal officers who were working for the
commission in December 2009.
In its Supplementary Submission, the ALRC explained the impact of this turnover
on the organisation:
There has been a significant turnover of ALRC legal staff in
the past year, and the additional workload placed on staff, as resources have
decreased, may have affected morale. Of course, staff turnover always occurs
for a number of reasons, and the ALRC's complement of legal officers remains of
an extremely high professional standard. Staff turnover nevertheless has an
impact on the efficiency of the ALRC as new staff have to be trained in the law
reform process...[I]n order to attract and retain staff who are skilled and
experienced in the law reform process, the ALRC must have adequate resources so
that appropriate and competitive salaries and benefits can be offered. The
continuing quality of ALRC reports is dependent on access to these highly talented
and committed law reformers.
Professor Croucher informed the committee that the ALRC has invested
resources in providing an induction program to try and capture some corporate
memory and provide new legal officers with a 'solid grounding in the processes
of law reform'. However, Professor Croucher noted that, in her experience, it
takes at least one reference cycle to 'really get the hang of what really works
in a law reform process'.
The committee questioned Professor Croucher as to the reasons for the
high turnover of staff. Professor Croucher provided the following explanation:
I will put the reasons in a bunch, if I may. The cuts in the
budget and the way they were introduced and the lack of appointment of
additional commissioners once we completed the [initial] family violence
inquiry were destabilising factors in terms of staff. A number of staff at that
point had opportunities that they took. They were for them good opportunities
and for many a solid promotion, based on the experience that they had acquired
at the ALRC. There are a lot of factors that feed into it. I must say that the
workload last year was extraordinarily heavy in order to complete the [family
violence] report...So it is a combination of destabilising and looking for
opportunities, perhaps as a result of that destabilising, and the additional
burden certainly played very heavily at least in one case.
The committee also heard evidence from Professor David Weisbrot, the
immediate past President of the ALRC, who stated:
...it has hurt me deeply that in just over a year, in the
year and a bit since I left, there has been more than 100 per cent turnover of
Professor Weisbrot highlighted the fact that only one legal officer
remains at the ALRC with more than one year's experience, with the result that there
has been an almost complete loss of institutional memory and experience.
Further, Professor Weisbrot described as a 'double whammy' the combination
of short-term commissioner appointments and the high turnover of legal staff at
Now we have a very junior and inexperienced staff at the
ALRC. I think that is a double whammy. Who there is going to say to the
commissioner, 'You know, we had that kind of problem three references back, and
this is how we handled it,' or, 'Two references back, this organisation was
especially useful to us and this one wasn't so good; they just gave us the
The committee sought the Department's view on the high turnover of staff
at the ALRC. The Secretary of the Department stated that he did not know why
there was a 90 per cent turnover of staff at the ALRC, but it was a matter for
the CEO of the organisation. However, the Secretary did note that there is 'nothing
about [the ALRC's] budget that requires a 90 per cent turnover'.
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