CHAPTER 5

Impact of budget cuts – information and education program and conduct of inquiries

Introduction

5.1        The budget cuts to the ALRC have also impacted on the organisation's ability to provide its public information and educational services program. In addition, aspects of the ALRC's inquiry process have been curtailed, particularly the ability of the ALRC to travel to undertake face-to-face consultations. These impacts are discussed in this chapter.

Discontinuation of public information and educational services program

5.2        One of the measures the ALRC has taken to reduce its expenditure has been to reduce the number of programs from two to one by removing the public information and educational services program from the ALRC's budget. In particular, the ALRC has discontinued publication of the bi-annual law journal, Reform, which had been published since 1976. The ALRC's remaining program is the conduct of inquiries.

5.3        The committee received evidence from stakeholders in relation to the impacts of this savings measure. Macquarie Law School described as 'deeply regrettable' the discontinuation of Reform:

The topically themed journal was intended to raise public awareness of contemporary law reform issues – through contributions written by leading Australian and international authorities – and provided a valuable source of information on law reform projects across Australia and internationally.

This aspect of law reform – now lost – was instrumental in placing new and emerging issues on the agenda for community discussion and prompting eventual attention by governments and others.[1]

5.4        RoLIA noted that former High Court judge, and inaugural President of the ALRC, the Hon. Justice Michael Kirby, AC CMG, has described Reform as 'vital reading for the modern lawyer'.[2] RoLIA also highlighted that Reform was an important source of revenue for the ALRC:

Reform was a subscription journal so brought the only other source of income in for the ALRC other than Government funding. Reform was the means to save money in the reserve fund and as the reserve fund is currently being spent, the ALRC is left with reduced independence from the government.[3]

5.5        At the first public hearing, Professor Croucher outlined other impacts arising from the loss of this program:

Our educational outreach program was a significant element of our work... At any request we were able to host international visitors, providing them with training on law reform. We were able to provide resources to allow our staff to travel internationally, such as when Professor Weisbrot – when he was President – and our then research manager were able to conduct training in Papua-New Guinea in law reform. Professor McCrimmon and Professor Weisbrot both went to Botswana at the invitation of the government there. We do not have the capacity to even allow the time to do those sorts of things.[4]

5.6        In terms of educational outreach, the committee also notes the submission from Macquarie Law School, which expressed concern that the student internship program at ALRC may also suffer due to the budget cuts:

The ALRC has an active internship program, which is highly competitive and has developed an excellent reputation over the last decade...Although interns work on a voluntary basis they require considerable supervision, which clearly has resource implications for the ALRC. There are limited opportunities to undertake internships in public law institutions in Australia and, given the impact of the budget cuts on staff numbers at the ALRC, we are very concerned that the already limited opportunities for students to participate in this program may face the same fate as other elements of the ALRC's public information and education services discussed above. Alternatively, student intern numbers might not diminish, but the quality and intensity of the supervision inevitably will decline in the absence of experienced legal staff. In either case, this would be a tragedy, given the importance and power of teaching students that they need not only work with the law as it is, but might actively engage with institutions and processes that analyse and critique the law as it is and develop constructive proposals for change.[5]

5.7        The submission of Victorian Women Lawyers also noted the important role that the ALRC's public education and community consultation function plays in linking the legal community with members of society who may not otherwise have the opportunity to engage in the law reform process.[6]

5.8        In his submission, Professor Weisbrot listed the abandonment of community education initiatives as one of the devastating impacts of the budget cuts. However, while acknowledging the importance of these functions, in the attachment to his submission Professor Weisbrot also advocated that law reform commissions must remain focussed on 'their main function':

Although law reform commissions must engage in a number of important ancillary activities – such as community education, conference organisation, publishing, and making submissions to other inquiries based upon previous or current research – they must remain focussed squarely upon their main function: to provide the highest quality legal and policy advice on matters referred to them, and thus to be useful to government.[7]

Changes to inquiry processes

5.9        The ALRC's Background Submission outlined a number of steps that have been taken as savings measures in the inquiry process:

• producing only one consultation paper, as opposed to the usual two (an Issues Paper and Discussion Paper), preceding a final report;
• developing online consultation strategies so as to reduce the cost of consultation travel; and
• producing the Consultation Paper for the Discovery inquiry in a soft copy online and not producing any hard copies, as well as introducing full cost recovery on final reports.

5.10      Each of these measures is discussed below.

Producing a single consultation paper

5.11      A number of witnesses criticised the combining of the Issues Paper with the Discussion Paper. For example, Mr Edward Santow from PIAC argued that conflating these two stages of an inquiry misses out on a number of opportunities for reflection and consultation with stakeholders.[8] Mr Santow went on to note that, while prima facie it is more cost-effective to conflate those two stages, in the long run it is 'clearly' a false economy:

If you go back and look at previous discussion papers – which effectively would have become reports – there are a number of times when the ALRC has floated what at the time it believed to be a good recommendation for reform but on further analysis from stakeholders, and reflection from the ALRC itself, has realised was not the best solution to the problem it was trying to solve.[9]

5.12      Mr Benjamin Giles, Secretary and Treasurer of RoLIA, described the process as appropriate to the role of the ALRC because it is 'not a hasty approach to law reform'.[10] Mr Warwick Soden, Registrar of the Federal Court of Australia, highlighted the important role that the discussion paper played. According to Mr Soden, the discussion paper stage is the opportunity for the 'elephants in the room' to be discussed, and for urban myths to be tested and either confirmed or abolished.[11]

5.13      In contrast, the Hon. Justice Hammond, President of the NZLC, stated that it is a matter of efficiency to consolidate the preliminary work of an inquiry into a single paper.[12]

Reducing travel for consultation

5.14      The reduction in travel for consultations as a measure to reduce expenditure, and the implementation of other strategies to supplement face-to-face consultation, was the subject of significant comment by submitters and witnesses. The committee received submissions on the extensive manner of the ALRC's consultations and how this process contributes to the high-quality reports that the ALRC produces. For example, the Australian Domestic and Family Violence Clearinghouse stated that, in the course of the first Family Violence inquiry in 2010, the ALRC 'demonstrated an excellent capacity to involve and represent the positions of a wide range of stakeholders through respectful consultation'.[13]

5.15      The ALRC's Supplementary Submission stated:

Community consultation lies at the heart of the ALRC process, and the ALRC's resources must allow for continued widespread consultation around the country. Indeed many Terms of Reference issued to the ALRC include such a requirement.[14]

5.16      The NSW LRC noted that, while some stakeholders are 'comparatively easy to engage', law reform bodies must ensure that consultation engages individuals and sectors of the community who may not find it as easy to participate in law reform processes, such as rural and regional stakeholders, and Indigenous peoples.[15]

5.17      The potential impact of budget cuts on the ALRC's consultation process was a concern to some submitters. For example, PIAC argued that the budget cuts have already affected the ALRC's capacity to consult outside the 'Sydney/Melbourne/Canberra axis'.[16] Mr Edward Santow expanded on this issue at the hearing:

...from my observation, the ALRC has not travelled widely out of its Sydney-Melbourne-Canberra axis. That is something it used to do prior to the budget cuts. It consulted frequently in areas, like the Northern Territory, that are not always the subject of those kinds of consultation. It devoted significant resources, both time and energy, in doing that. When you do not do that, the problem you often encounter is that well resourced stakeholders continue to be able to fly to Sydney, where the ALRC is based, and make their views heard and less well resourced organisations or individuals find it much harder to do that or even to become aware in the first place that the ALRC is holding an inquiry.[17]

5.18      The ALRC's Supplementary Submission outlined some of the strategies used in inquiries in addition to face-to-face consultations, including online forums; online submission forms; blogs, podcasts and twitter updates.[18] The committee received some positive feedback on these strategies, in particular from the Law Council of Australia.[19] However, the ALRC stated in its Final Submission that these strategies could not replace face-to-face consultation:

While the ALRC is able to conduct many consultations via teleconference and through our online communication strategies, such as blogs and online forums, the complexity of the subject matter that is often being considered, and the nature of the stakeholders, means that these more remote consultation tools cannot always take the place of face to face consultation.[20]

5.19      In considering this issue, the committee also believes that the ALRC makes a pertinent point in highlighting that travel expenses are only two per cent of the ALRC's total expenditure. This means that even significant savings in travel have only a limited impact in the overall budget: for example, a saving of 20 per cent in travel expenses only reduces total expenditure by 0.4 per cent.[21]

Cost recovery for reports

5.20      The ALRC introduced cost recovery for the final report of the Family Violence inquiry which it completed in November 2010 (previous Family Violence inquiry). The Federation of Community Legal Centres (Victoria) raised this issue in its submission, describing as 'disappointing' the fact that bound copies of the final report of the inquiry cost $80:

We understand that this new policy of full cost recovery reflects the present under-resourcing of the ALRC. While the ALRC's reports are available for download via the internet, the resulting documents can be very unwieldy, as in the case of the Family Violence report which ran to 1,500 pages. Like many community organisations, the Federation must make strategic decisions concerning the use of its limited resources. In some instances, the practice of charging for bound ALRC reports may compromise our ability to access and utilise this material.[22]

5.21      Professor Croucher stated in evidence to the committee that the introduction of full cost recovery has drawn 'considerable complaint', but that the measure was introduced to prevent the 'absolutely unpalatable alternative' of dismissing staff.[23]

Moving from current premises

5.22      A further issue resulting from budgetary constraints is the need for the ALRC to move from its current premises. Professor David Weisbrot expressed his concern as follows:

...the ALRC will be forced to leave its purpose built premises in the Sydney CBD, despite having negotiated very favourable lease arrangements – and I understand the proposed new premises will not include any reception area, meeting rooms or library – which likely means that the ALRC's Michael Kirby Library, the major dedicated law reform library in Australia, of 35 years standing, will be eliminated...[24]

5.23      In evidence to the committee, Professor David Weisbrot informed the committee that the ALRC's lease for its current premises is an 'exceptionally good deal':

Part of it was luck: we happened to find a building where one of the law firms...was about to leave, and the owners were a bit desperate and happy to give us a deal that was below market rates. It is a much lower level of rent than, for example, what ASIC or the ACCC are paying per square foot – they are just nearby...[The ALRC's premises] are custom built premises that were very good for morale and collegiality. They provide adequate meeting rooms...to work with stakeholders through the process.[25]

5.24      Professor Weisbrot described the ALRC's upcoming change of premises as 'very penny-wise, pound-foolish'.[26]

5.25      At the first public hearing, Professor Croucher told the committee that an agreement has been finalised for the ALRC to sub-license premises from the Australian Government Solicitor (AGS) in Sydney. The agreement will allow the ALRC to reduce its rental expenditure and remain in 'the heart of [Sydney's] legal district', an important factor in leveraging the honorary contributions upon which the ALRC relies.[27] Professor Croucher also noted that the move was made in order to avoid 'an unpalatable alternative', being the reduction in staff.[28] The committee sought further details from Professor Croucher as to the nature of facilities at the ALRC's new premises:

By a strategic move with a compatible partner, like the [Australian Government Solicitor (AGS)], we can invoke the reception space that the AGS use and we are able to use their [meeting rooms] – that is part of our agreement. Obviously we have to book them all in advance, but we will be able to use those rooms. There is some ability to share the library service as well.[29]

5.26      The committee was informed that the ALRC still has commitments under its current lease until September 2012, but is endeavouring to offset those costs through subleasing its current premises:

Because we have to carry our current lease through until September 2012, we will endeavour to offset that by subleasing as project space our current premises.[30]

5.27      The committee questioned the Department about the need for the ALRC to move premises. The Secretary of the Department noted that the ALRC would be moving to premises 'that are more affordable for an organisation of the size of the commission'.[31] An officer of the Department also stated that once the ALRC has 'regularised' its accommodation, it 'will be able to afford a full-time commissioner from [its] base budget'.[32]

5.28      In response to the committee's concerns about the ALRC being required to share facilities such as a library and meeting rooms, officers of the Department informed the committee that these were matters for the President of the ALRC to negotiate independently with the AGS.[33]

5.29      During the course of the ALRC's and the Department's appearances at Additional Estimates in February 2011, the committee returned to the issue of the ALRC's rent commitments, particularly the potential for the ALRC to be in a position to have a double commitment to rent once it moves premises in April 2011. Professor Croucher indicated that the ALRC has been given a rent-free threshold until July in its new premises. However, Professor Croucher noted that in the 'worst case scenario', being that the ALRC is unable to sublease its current premises, the ALRC would be carrying both rents through the next budget year.[34] The Department was optimistic that the ALRC's current premises would be subleased:

...[the Department does] not believe that the president is necessarily expecting that the [commission] will need to pay the rent in two facilities, because they are taking steps to sublease their original premises. So, should they be successful in doing so, they will, as well as being relieved of the burden of the rent in their original premises, enjoy a number of months rent holiday from the Australian Government Solicitor in their new premises as part of the negotiations for the move.[35]

5.30      In contrast, the committee notes Professor Weisbrot's less optimistic assessment of the ALRC's chances of being able to sublet its current premises:

I think the subletting will be problematic, because another entity coming in will not have much security of tenure. They will not want to invest much money in refitting, so they would have to be able to use the exact space for their exact purposes without much change. Whether they can do that or not, I have no idea. I think it is risky, and it is one of those things where I wonder: 'Why do that now? Why put the commission in a position where it may lose hundreds of thousands of dollars 18 months before the very good lease expires?'[36]

Other matters

5.31      The Terms of Reference for this inquiry provided the opportunity for comment on 'other related matters'. The committee received evidence on a number of issues in this regard which are covered briefly in this section of the report, including:

• government responses to, and implementation of, the ALRC's reports;
• the setting of the ALRC's work program; and
• time frames for the ALRC to report on references.

5.32      This section of the report also covers the Term of Reference in relation to the appropriate allocation of functions between the ALRC and other statutory agencies.

Government responses to ALRC reports

5.33      As noted in Chapter 3, the implementation rate of ALRC reports is very high. However, there is no formal process in place for the government to respond to ALRC reports. This issue was commented on by a number of submissions. For example, in its submission, RoLIA advocated for greater transparency in government consideration of ALRC reports 'in order to avoid the wastage of [scarce] law reform resources'.[37] The Law Council of Australia's submission highlighted the need for timely responses to ALRC reports:

The ability of the ALRC's reports and recommendations to effect legislative change and address weaknesses or deficiencies in the law is dependent upon those reports and recommendations being considered and acted upon by the Commonwealth Government in a timely fashion.[38]

5.34      The Law Council of Australia's submission suggested amending the ALRC Act to provide a statutory timeframe for government responses.[39] The committee notes that the Secretary of the Department stated that he did not have a view on the tabling in Parliament of government responses to ALRC reports within a certain timeframe. However, the Secretary warned that such requirements may become 'just sort of bureaucratic form':

All you will do is force in some cases the government to respond arbitrarily or in a pre-emptory fashion to something that requires more consideration.[40]

5.35      Other jurisdictions have mechanisms which provide for government responses to law reform reports. RoLIA's submission explained that new legislation in the United Kingdom requires the government to table in parliament each year a document outlining its response to proposals of the Law Commission of England and Wales.[41]

5.36      New Zealand also has a formal process, published in a Cabinet Office Circular, which sets out the government's obligations to respond to the reports of the New Zealand Law Commission (NZLC). At the second public hearing, the President of the NZLC explained the process to the committee:

...if the government accept our recommendations, they get straight on with the bill. [The NZLC] may be asked to attend a select committee to enlarge on matters. If [the government] do not accept our recommendations or most of them, then...the minister has to, within 120 days, file in the house a reason why they are not accepting them.[42]

5.37      Professor Bryan Horrigan suggested changing the current ALRC process to accommodate an implementation report:

...the ALRC's standard practice of producing three major outputs per referral could be modified and enhanced to accommodate a consultation document, final report, and implementation report (with accompanying draft legislation for public comment)...with the latter report being produced in conjunction with other relevant governmental participants.[43]

5.38      The ALRC's Background Submission indicated that it strongly supports the release of government responses to its reports.[44]

Process for setting the work program

5.39      The ALRC can only undertake inquiries that are referred by the Attorney-General, either at the suggestion of the ALRC or at the Attorney-General's own initiative.[45]

5.40      The committee was given a number of examples of how the work programs for law reform agencies in other jurisdictions are established. For example, the Law Commission of England and Wales does not receive specific references, but instead prepares a program of work which is put to the Lord Chancellor for agreement.[46]

5.41      The NZLC has the power to self-initiate references. However, the NZLC's submission noted that the volume of government referrals in recent years has meant that the NZLC has not carried out any self-initiated inquiries.[47] Civil Liberties Australia indicated its support for the ALRC to have the power to self-initiate references.[48]

5.42      The Victorian Law Reform Commission (VLRC) also has the power to 'review issues of general community concern'. Ms Ursula Noye, of the Public Interest Law Clearing House, explained to the committee how this referral power works in practice:

...individuals and organisations and lawyers may suggest issues to the VLRC for review. The VLRC staff and, ultimately, its commissioners consider the issues and refer them as appropriate for review by the VLRC. Since 2006, the VLRC has received 100 suggestions for law reform from the community and, of those suggestions, it has initiated four reviews. Of the reviews so far published, all have been partially or fully implemented in Victorian law and policy.

...It truly reflects representative government creating a more participatory and just society where those who may not normally have a say in law reform can do so.[49]

5.43      To this end, the committee notes that the ALRC in its Supplementary Submission addressed the value of a community referral power:

...the ALRC considers that one of the factors contributing to the high rate of implementation of its recommendations is the fact that the ALRC only works on issues that are of high relevance to the government, and for which there is an appetite for parliamentary reform.[50]

Timeframes for inquiries

5.44      The short timeframes for ALRC inquiries were highlighted as problematic in some submissions. For example, the NSW LRC noted that the timeframe for the ALRC's reporting on references is frequently of short duration:

Prompt responses to law reform questions may be important – law reform may lose its immediacy and relevance if a relatively speedy response cannot be secured. However, thorough, independent research that includes consultation in meaningful ways with stakeholders and produces sound recommendations cannot be carried out speedily without resources...[51]

5.45      The ALRC's Supplementary Submission refers to the fact that the time taken by the ALRC to complete inquiries is dictated by the Attorney-General in the Terms of Reference, at the time each inquiry is referred. Over the past ten years, only two ALRC reports have taken over two years to complete (both of which were highly complex inquiries). All other inquiries during that time have taken less than 18 months to complete.[52]

5.46      The Department's submission contended that one of the ways that the ALRC's functions and 'ongoing financial stability within its budget' can be achieved is through shorter, more focused references.[53]

5.47      The ALRC's submission responded to this suggestion by noting that there is scope for shorter, more focused inquiries in some circumstances. However, the ALRC did not advocate focusing only on shorter, less complex inquiries as a way of solving its current resourcing deficit, because this would be a waste of the ALRC's intellectual capital and knowledge. Further, the ALRC went on to state that an organisation with its capacity and experience to deal with complex legal issues must not lose that ability.[54]

Allocation of functions between ALRC and other statutory agencies

5.48      The committee also received a number of submissions which addressed the inquiry's Term of Reference in relation to the appropriate allocation of functions between the ALRC and other statutory agencies.

5.49      Mr Bruce Arnold, a Law Lecturer at the University of Canberra, submitted as follows:

...it is appropriate that the Commonwealth maintains a 'distributed' law reform regime that features activities by Senate Committees, by the ALRC, by sector-specific bodies (such as the Productivity Commission, the Australian Institute of Criminology and Australian Institute of Family Studies) and by ad-hoc inquiries. However, the existence of [different] Commonwealth research bodies and of state/territory entities such as the NSW Bureau of Crime Statistics & Research should not be regarded as an excuse for the ongoing erosion of the ALRC.[55]

5.50      The Office of the Australian Information Commissioner (OAIC) submitted that, in its view, the allocation of functions between the ALRC and the OAIC is 'appropriate, effective, and essential to the work of the OAIC'. The OAIC's submission noted that a number of the ALRC's inquiries are directly relevant to the role and function of the OAIC.[56]

5.51      The Public Interest Law Clearing House's submission compared the role of the ALRC with the Australian Human Rights Commission:

While PILCH supports and recognises that the impact of Commonwealth laws upon human rights is a relevant and important consideration for the ALRC in the performance of its functions, it is not the ALRC's main function.

The primary function of the [Australian] Human Rights Commission is to meet its responsibilities under federal anti-discrimination and human rights laws. In addition to investigating and conciliating complaints under these laws, the [Australian] Human Rights Commission holds public inquiries, develops education programs, provides independent legal advice to courts and makes submissions to governments on law and policy development and reform...PILCH considers that the functions and funding of the ALRC and the [Australian] Human Rights Commission reflect their sufficiently discrete and complementary roles and functions.[57]

5.52      The ALRC's Supplementary Submission noted that there are key differentials that distinguish the ALRC from other agencies and organisations responsible for developing legal policy, including:

• the ALRC's independence;
• broad generalist legal expertise;
• authority and capacity to leverage relationships with key stakeholders;
• distinguished consultative and research strategies;
• dedicated experience in best practice law reform processes; and
• engagement with the international legal community.[58]

5.53      Further, the ALRC's Supplementary Submission stated that the functions of the ALRC, as set out in the ALRC Act, are not being duplicated by other statutory agencies, and remain best delivered by an independent, properly resourced and constituted law reform body.[59]

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