DISSENTING REPORT BY GOVERNMENT SENATORS
Introduction
1.1
Government Senators strongly support the Australian Law Reform
Commission (ALRC) and its important work, however, Government Senators disagree
with the views of the committee majority and the recommendations in the
majority report. In particular, Government Senators believe that the majority
report does not recognise the clear advantages for the ALRC in relation to the
changes in its governance structure. These changes will introduce a more flexible
membership model which will allow the composition of the ALRC to be adapted as
circumstances require. Further, the ALRC will benefit from the appointment of
short-term commissioners, who will assist the ALRC on specific references with
their expert knowledge, experiences and advice.
1.2
In terms of the majority report's concerns about the ALRC's budgetary
situation, Government Senators note that the Australian Government is committed
to resourcing the ALRC for the long term and, further, that the Attorney-General's
Department is committed to assisting the ALRC to ensure that it is properly
resourced to carry out its functions.[1]
Government support for the ALRC
1.3
The Australian Government has put on the record its strong support and
commitment to the Australian Law Reform Commission (ALRC). As the
Attorney-General has noted:
It was a Labor government that established the ALRC and since
that time Labor attorneys have reaffirmed the party's commitment to the
[ALRC]'s important input in shaping the Australian legal landscape.[2]
1.4
The Attorney-General's Department's submission sets out the ALRC's impressive
record, and highlights the esteem in which the Australian Government holds the work
of the ALRC:
The [ALRC] 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...[T]he
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.[3]
1.5
Government Senators reiterate that the Australian Government holds the ALRC's
contributions in the highest regard and is committed to ensuring that the ALRC
remains at the forefront of modern law reform.
Changes to the ALRC's governance structure
1.6
Government Senators disagree that the amendments to the governance structure
of the ALRC, contained in the Financial Framework Legislation Amendment Act
2010 (FFLA Act), place the ALRC in an 'extremely precarious position'.
1.7
As was pointed out in the Attorney-General's Department's submission, these
reforms have been foreshadowed since the Review of Corporate Governance of
Statutory Authorities and Office Holders, which was conducted by Mr John Uhrig
AC in 2003:
The primary purpose of the amendments contained in the FFLA
Act is to move the Commission to governance arrangements consistent with
Australian Government policy on statutory bodies as set out in the Governance
Arrangements for Australian Government Bodies. These arrangements were
issued following the Review of Corporate Governance of Statutory Authorities
and Office Holders...[4]
1.8
Further, as noted by Mr Roger Wilkins AO, Secretary of the
Attorney-General's Department, the Uhrig Review reforms have bipartisan support:
The Uhrig review seems to be something that has a measure of
bipartisan support. It originated with the previous government and there was every
intention, I think, in the [D]epartment of [F]inance of gradually moving in
these areas. They moved faster in some than they had done under the previous
government and they are now implementing some of them under the current
government.[5]
1.9
The amendments in the FFLA Act will introduce a more flexible membership
structure for the ALRC, so that the composition of the ALRC can be adjusted
based on the subject matter of the inquiries referred to it. The
Attorney-General outlined the benefits to the new structure as follows:
...appointing subject matter experts to specific inquiries
will strengthen the [ALRC's] ability to undertake expert analysis, research and
consultation across the country...the amendments will enhance the [ALRC's]
ability to carry out its important functions and will ensure it remains
completely independent in fulfilling its responsibilities.[6]
1.10
The ALRC's recent Family Violence inquiry demonstrates the advantages
that these changes will bring. The Australian Government appointed magistrate Anne Goldsbrough
as a specialist commissioner for the duration of the inquiry, utilising her
expertise as a state supervising magistrate for family law. Similarly, the
ALRC's 'Discovery in civil litigation' inquiry will benefit from the knowledge
and experience of Federal Court justices Arthur Emmett and Bruce Lander, who
were appointed as commissioners for the duration of the inquiry.
1.11
The submission of the Attorney-General's Department noted that
commissioners would be 'targeted for their expert wealth of experience, to
provide advice on specific references'.[7]
1.12
Mr Wilkins also pointed out in his evidence to the committee that the
amendments in the FFLA Act would:
...introduce more flexibility into the commission structure,
taking into account the varied and often highly technical subject matters on
which it undertakes inquiries.[8]
1.13
For this reason, Government Senators disagree with Recommendation 2 of
the majority report, because we do not believe it is necessary to legislatively
mandate a minimum number of full-time commissioners. The changes in governance
structure introduced by the FFLA Act provide the ALRC with a more flexible
membership structure to enable the composition of the ALRC to be adjusted based
on the subject matter of the inquiries referred to it.
1.14
The majority report expresses concerns that the changes in the FFLA Act
will detract from the independence of the ALRC. Government Senators do not
agree, and are of the view that the changes do not detract from the ALRC's independence.
Instead, these changes provide more flexibility, and allow the ALRC to adapt as
circumstances require and to remain completely independent in fulfilling its
responsibilities. The revised Explanatory Memorandum explicitly states that the
Attorney-General's written directions to the President are limited to
administrative matters only, and will not affect the independence of the ALRC
in undertaking inquiries.[9]
This point was emphasised by Mr Wilkins at the committee's first public hearing:
The government does have a continuing commitment to the
independence and efficacy of the [ALRC]...I wish to stress that none of the
structural changes go to the independence of the commission.[10]
Impact of budget cuts on the ALRC
1.15
In terms of the impact of budget cuts on the ALRC, Government Senators
note the Attorney-General's Department's evidence about the context in which
the budgetary reductions were introduced:
The reductions in the commission's budget were made at a
time...when $3.5 billion of savings were being found from across government,
occasioned by, as we all know, the global financial crisis. The savings from
the 2009 Mid-Year Economic and Fiscal Outlook are a key component of the
government’s commitment to returning the budget to surplus at the earliest possible
responsible time and, once the budget returns to surplus, maintaining spending
restraint to support long-term stability.[11]
1.16
Further, Government Senators believe that the majority report does not
give adequate consideration to the submission of the Attorney-General's Department
in relation to the adequacy of the ALRC's budget:
The Government considers the [ALRC]'s resources are adequate
to discharge its functions... It is a matter for the [ALRC] to determine how to
use its budget. The [ALRC] has identified a range of efficiencies. The
Department is available to assist the [ALRC] where requested and is committed
to maintaining a close working relationship with the [ALRC] to ensure that
feedback about resourcing is appropriately considered.[12]
1.17
Government Senators agree with the Attorney-General's Department that
professional public servants need to manage within their budget.[13]
In this context, Government Senators also note that the ALRC is an independent
body and the chief executive has to make his or her own decisions about how
resources are utilised within the budget allocation.[14]
1.18
Government Senators also emphasise the point that the Attorney-General's
Department has engaged in ongoing discussions with the ALRC to assist it as it
moves through this transition phase:
The department is working with the commission as it moves
towards this new way of doing business, and the department is confident that
this transition will position the ALRC to maintain the high standards of
research and analysis for which it is acclaimed as well as serving the government
in the best way that it can.[15]
1.19
Further, the Attorney-General's Department assured the committee that it
'remains committed to maintaining frequent and meaningful contact with the
[ALRC]'.[16]
1.20
In relation to Recommendation 3, the Australian Government has already
announced that it will appoint a full-time commissioner for the ALRC's review
of censorship and classification. Further, the government will assist the ALRC
with the costs of this appointment. The Australian Government expects to
announce the appointment of a full-time commissioner for that inquiry shortly.
1.21
In terms of the concerns expressed in the majority report regarding the
ALRC's relocation to new premises, Government Senators note the
Attorney-General's Department's evidence which sets out the benefits of this
move:
...the [ALRC] was paying in the vicinity of $600,000 a year
in rent, which seemed to us to be an area where there was capacity for
considerable savings to be made. I am pleased to say that the Law Reform
Commission has recently negotiated arrangements to move to premises that are
about half that price, which then makes it much more commensurate with the kind
of size and budget of the commission as a whole. So nearly $300,000 worth of
savings are being achieved as a result of a move to premises that are somewhat
more in keeping with the normal space utilisation for public service officers.[17]
1.22 Government Senators note that as part of a move to
working more efficiently, the Issues and Discussion Papers for ALRC inquiries
have been consolidated. To this end, Government Senators note the evidence of
the President of the New Zealand Law Commission, that that organisation had
consolidated all its preliminary research into a single paper as a matter of
efficiency:
...you have two or three chapters on the background, the
present law, and what you want to end up with is what really has to be answered
here. Then of course you consult and there is a separate final report.[18]
1.22
Further, Government Senators consider that the budget cuts also provide
opportunities for the ALRC to explore other ways of conducting inquiries by,
for instance, using new media to facilitate consultation on inquiries. The Law
Council of Australia indicated its support for these types of changes:
The Law Council is supportive of the multiple mediums through
which the ALRC has sought feedback in its consultations and encourages the
ongoing use of such technology in future inquiries.
Forums like [podcasts, e-newsletters, twitter contributions
and updates, RSS feeds and on line forums] make it easy for the Law Council and
its Sections and Committees to stay up-to-date with all relevant developments
relating to the inquiry and to exchange ideas with other organisations and
individuals and make contributions to complement the more conventional written
submissions.[19]
1.23
Finally, the Attorney-General's Department advised the committee that
the Australian Government is of the view that the resources of the ALRC are
adequate for it to discharge its functions:
The [ALRC]'s functions and ongoing financial stability within
its budget can be achieved in a number of ways. Shorter, more focused
references and alternative staffing models are two examples of different
approaches. It is a matter for the [ALRC] to determine how to use its budget.
The [ALRC] has identified a range of efficiencies. The Department is available
to assist the [ALRC] where requested and is committed to maintaining a close
working relationship with the [ALRC] to ensure that feedback about resourcing
is appropriately considered.[20]
Conclusion
1.24
Government Senators consider that the Australian Government strongly
supports the work of the ALRC. As Mr Wilkins stated at the first public hearing:
The government regards the work of the [ALRC] as important to
a vibrant and sustainable legal system...[T]he [ALRC] is highly regarded for
the way it goes about its work, including the quality of its research and its
emphasis on consultation.[21]
1.25
The changes to the ALRC's structure introduced by the FFLA Act will
improve the ALRC's flexibility to respond to circumstances as required, and
will enhance the ALRC's ability to undertake expert analysis through access to
subject-matter expert commissioners for specific inquiries. Government Senators
also believe that the ALRC is adequately resourced to undertake its important
functions, particularly in light of the Attorney-General Department's ongoing
commitment to assist the ALRC and ensure that it is adequately resourced.
Senator
Trish Crossin Senator
Mark Furner
Deputy Chair
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