Australian Law Reform Commission

Transcription

The law reform commission is a burr under the saddle. It's there to create questioning and questioning not only of particular rules, but questioning of the way law is made, or the way it's not made. - If the law gets out of date, uh... and uh... not keeping in touch with the public uh... it will frustrate them And that's where law reform has to play its part its part in keeping the law in touch with the requirements of here and now. From the start I was of the view that the Commission should reach out to the general public. In part that came from my upbringing, my values, and my views as a democrat, that law was too important to leave to the lawyers. Not everybody agreed with that and indeed when we set upon the task of consulting the public through commercial radio talk back public hearings, uh... television and the like, there were critics, especially in the judiciary, and in the legal profession. The commission would bring in individuals with special experience or knowledge in the area to work with them on an ongoing basis, as well as just receiving written or oral submissions. And particularly one might choose people known to have differing views of the issues. You know, people, top professionals gave their time for nothing. You can do that, as long as people believe that something is going to come out of it. But if they think they're just spending their time ... and it'll just be another report that gathers dust on some Minister's shelf, understandably they are not interested. People will tell us things, corporations will give us secrets, individuals will give us very personal stories that they would never in a million years tell to a parliamentary inquiry or give to the government in inverted commas, uh... but they'll talk to us because we're seen to be sufficiently independent and to have our own robust culture of giving independent advice to government. We went to aboriginal communities and we sat down with Aboriginal people, literally under the palm trees, and we spoke to them. Now, at that time, that wasn't a very common thing, for judges, and officials, and poo-bahs to do. By and large, people who go into law are rather conservative people. They are people ... you might almost say they are a lot of control freaks. They like everything to be uh... very controlled, and controlled according to the rules they know, and maybe have made, so getting change is not all that easy. You've got to work in five- and 10-year timeframes in dealing with law reform, so that the impact on the average person, the citizen, the Joe in the street, is nothing like as immediate in most circumstances as it is through political processes or the influence of the media from time to time. - We call it the long lead time. From the time a Commission report is submitted and tabled to when implementation happens can be a very long time. Sometimes it happens in bits and pieces over many years. There's always a bit of a cheer down at the Commission when some part of some long-forgotten report suddenly appears on the statue book. I started as Chairman of the Law Reform Commission in the ante-room to the bankruptcy judges' chambers, and Mr Justice Reilly would walk in and out of his chambers over there in Temple Court, and look with total disdain as we struggled there to establish the ALRC. And even when we moved to 99 Elizabeth Street, they were humble and modest offices. It was thought that things would work better on one floor, when everyone was on the same floor, there'd be better interactions. We'd shrunk the total staff from, I think, a bit over 65-ish sort of number down to about half that. So it was basically a financial deal and reflected the fact that staff had halved in that period. We have better physical facilities, there's more light and air, and I'm sure it's helpful for morale. It was nice to see all the staff, probably six months after we moved, you'd see little tour groups going around with staff members giving a guided tour to their parents or spouses or siblings. We had some good times socially. I can remember we had a Christmas party out at Michael Kirby's place out at Rose Bay on a very hot December day I think Michael understood the importance of building up a corporate morale and an esprit de corp. It was a relatively small group and the idea was people should develop close bonds of friendship, which was what happened. So we had quite a lot of social events. We used to often go out to restaurants for an evening out, and that was a lot of fun, and I think it meant that everybody knew each other well, and there was a great working spirit which flowed through to the work we did. I was very impressed, loyalty of the staff and their ability to work hard. We asked a lot of them, and they gave us a lot back. Intellectually stimulating and very congenial, a collegiate atmosphere. When you get down to people like, well, both Michael Kirby and David Kelly, they gave no quarter ... and he took the reported through it up in the air and I saw all these beautiful pages of my report falling down around me, and he said "you were asked for a report on the concepts of how we tackle drinking and driving. You were not asked for a geography lesson" — which set out how they do it in Sweden, how they do it in at Canada, how they do it in South Africa. There are a couple of occasions I can remember when this meeting broke up in total chaos, and with a little bit of invective being exchanged, and George Brown, who was the first secretary of the Commission, who was a wonderful diplomat, would go and pour oil on the troubled waters and get everybody to think their positions through again. It didn't last more than a day or so, but ... yeah, we had some verbal punch-ups. [laughs.] Well, I feel like the father asked to name who his favourite child is. They are all my babies. I think they were all very significant, and I am very proud of all of them, and I'm proud of the reports that have come since. One of my favourite topics was something called "Choice of Law", but that is so obscure to the community ... I wouldn't even begin to talk about it publicly [laughing]. But it was an intellectual debate. I suppose in terms of ... uh implementation the Evidence Reference stands out. Evidence was difficult before our Uniform Evidence Act. It was difficult because it was spread all over the place. Well, I have to say I think the one on Customary Aboriginal Law is one of the best reports the Commission produced. I think that's an excellent report. Regrettably it hasn't been carried through legislatively, but I think it has influenced judges approaches to problems of sentencing Aboriginals, and I think it has also tended to inform the Native Title debate. Getting the Customary Aboriginal Laws report, well that was an important part, a mood development, but it would have been better still if a lot of those recommendations had been implemented, as perhaps one day some of them will be. Probably the one that has got somewhere further to go as well, but one that I thought was ... is the one that dealt with children and the law. The reforms that have been made in the family law procedure and other court procedures are a very very timid first step that needs to be taken. Uh... in terms of sheer intellectual fascination I guess the one we did on the protection of human genetic information, uh... because it was so outside my own (at least recent) experience. I hadn't studied science since I was a first year uni student and then I suddenly had to immerse myself in this area of the new genetics. And really, not just understand privacy and discrimination law, but understand how it applied in that specific context. I don't know how they did it, but they did it very effectively. I was very impressed with the level of expertise and detail that they were on top of in order to be able to analyse the legal questions that were involved. Determination to consult, to research, those standards have been there throughout, and it has maintained its lead in this area as a trend setter, as a very good friend to some developing law reform agencies. - Once of our problems in the law is we tend to become complacent, and the Law Reform Commission is always a challenge to reconsider what we regard as fundamental truths. The Commission of course came out of the Whitlam government's desire to reform, and it was carried through by the Fraser government, in particular Helicot, who was very keen on carrying through the process. So there was a sort of feeling that things could be done. I've worked with Labour and Liberal attorney-generals. I've worked with people from different personal backgrounds, geographic backgrounds, and I have to say all of them have been extremely honourable in respecting the independence of the Law Reform Commission. One test of the Commission doing its job is whether it has got a lively interest from the government of the day or from certain ministers, depending on what sorts of references are being run. You do have to push that boundary I think. I think basically the Commission has to be an intellectually respectable organisation. It shouldn't suggest change for the sake of change. That's a bad thing to do. On the other hand, it shouldn't be, it shouldn't resist a suggestion just because that's a conservative view. I think with law reform people think "well, is there anything left to reform?" And they think, "well why do you still need a law reform commission?" But the fact is, as we see now, in regard to Evidence and Defamation, it's a continuing process. It's the novelty that keeps you fresh. You may be working on marine insurance one day, genetics the other and national security the third. And I think that's why people find it exciting working here, it's that there's always something new, there are always new communities, new professions, new bodies of literature that you're coming across. And so, whereas the job description may be the same, your daily routine really varies fairly dramatically from one month to the next. It seems almost yesterday that I was sitting in Justice Reilly's chambers, and here it is 30 years on ... so that ... it's been a very significant 30 years. The best years lie ahead.