A PREVIOUS LEXICON COLUMN discussed the nature and process of law reform in common law jurisdictions and in the People’s Republic of China (see China Business Law Journal, volume 12, issue 2: Law reform). As noted in that column, most jurisdictions have specialist bodies that undertake the functions and responsibilities of law reform.
When law reform is undertaken by a permanent law reform body or institution, it is often referred to as “institutional law reform”.
As an example of institutional law reform, this column discusses the history of the Australian Law Reform Commission (ALRC), which celebrates its 50th anniversary this year. It outlines the purpose of law reform undertaken by bodies such as the ALRC (the “why” of institutional law reform), the different functions that the commission performs (the “what” of institutional law reform), and the way in which the commission performs those functions (the “how” of institutional law reform).
History of the ALRC
In 1971, Justice Anthony Mason of the High Court of Australia, who subsequently became the chief justice of Australia, proposed the establishment of an independent national law commission. This proposal was realised with the establishment in 1975 of the ALRC – then known as the Law Reform Commission – under its inaugural chairman, Michael Kirby, who subsequently became a judge of Australia’s highest court, the High Court of Australia. The name of the commission was changed from the Law Reform Commission to the Australian Law Reform Commission in 1996.
A key reason for the establishment of the ALRC was the desirability of a national law reform body that could achieve consistency of law reform and promote uniformity of laws across the jurisdictions in Australia.
These aspirations are reflected in section 21 of the legislation governing the ALRC – the Australian Law Reform Commission Act (ALRC Act) – which sets out the functions of the commission. A key function is “to review Commonwealth laws … for the purposes of systematically developing and reforming the law”.
This function is to be achieved in various ways, including “bringing the law into line with current conditions and ensuring that it meets current needs”, and “providing improved access to justice”.
Since its establishment in 1975, the ALRC’s history and fortunes have been intertwined with, and influenced by, its presidents and commissioners. The president is required to be appointed on a full-time basis. Commissioners may be appointed either on a part-time or full-time basis. Some commissioners are appointed for a term to assist with the inquiries that the ALRC undertakes during their term. Other commissioners are appointed to assist with a specific inquiry.
Many presidents and commissioners have been prominent judges, academics and practitioners. It is significant to note that three of the chief judges of Australia spent time with the ALRC prior to their appointments.
In its 50-year history, the ALRC has conducted close to 100 inquiries and delivered thousands of evidence-based recommendations for the improvement of Australian law and practice. It has established a well-earned reputation for excellence: its inquiries are co-led by renowned subject matter experts and skilled law reformers; its staff are skilled in legal policy development and legislative design; and its recommendations are based on comprehensive consultations and research.
The ‘why’
As noted in the above-mentioned previous column, many reasons can be identified to justify law reform, including the need to update existing laws and to introduce new laws to accommodate the ever changing nature of society and human behaviour.
In common law jurisdictions, law reform can be undertaken by a wide range of bodies, including government departments and royal commissions (for a discussion about royal commissions, see CBLJ, volume 10, issue 5: Commissions of inquiry). Given the different ways in which law reform can be undertaken, it can sometimes be challenging to identify the justification for undertaking law reform through an independent, professional law reform body such as the ALRC.
Supporters of institutional law reform bodies such as the commission have referred to it as the ideal model for law reform, and have argued that law reform is likely to be most effective when it is undertaken by a permanent body with a team of full-time commissioners and research staff. Two characteristics of institutional law reform that are often identified as key features are permanence and independence.
The nature of the ALRC as a permanent law reform body enables it to appoint and develop staff who have chosen the discipline of law reform as their career, and whose expertise extends beyond the technical legal expertise of subject matter experts.
Independence brings many benefits. First, the status of the ALRC as a body that is operationally independent of the government encourages stakeholders to share information, including sensitive information that they would not otherwise be comfortable disclosing. Second, its independent status allows it to make recommendations “without fear or favour”.
The commission’s ability to operate without fear or favour is of critical importance in enabling it to make recommendations that are based on the best advice and evidence available, irrespective of the reception that its recommendations might receive from the government.
Third, independence enables the ALRC to access expertise and to appoint experts, including as commissioners and members of advisory committees, who might not otherwise be willing to provide their expertise.
The ‘what’
The ALRC considers matters that are referred to it by the Commonwealth attorney-general pursuant to terms of reference. Unlike law reform bodies in other common law jurisdictions, such as the Law Commission of England and Wales, the ALRC does not have a statutory mandate to undertake an inquiry on its own initiative. The ALRC Act recognises, however, that the attorney-general may refer a matter at the commission’s suggestion.
The types of inquiry undertaken by the ALRC can be categorised in different ways and range from technical law reform projects to what are often described as “social law reform” projects, namely, projects involving reform to the laws that relate to social or social justice issues.
The ‘how’
Section 24 of the ALRC Act makes provision for how the commission is required to perform its functions. Included in this section is the requirement for the ALRC to ensure that the recommendations that it makes “do not trespass unduly on personal rights and liberties” and “are, as far as practicable, consistent with Australia’s international obligations”.
Although identifying the factors that the ALRC must take into account in performing its functions, including the effect of its recommendations, this provision does not identify the practical methods or steps by which the commission should perform its functions. Three elements, however, are core in any inquiry: consultation, research and writing. Each of these elements is an inseparable part of the law reform process.
In relation to consultation, the ALRC has been aware since its establishment of the critical importance of consulting with those who are affected by the law and any proposed reforms. In relation to research, it is arguably in its capacity to undertake rigorous, scholarly and independent research that the ALRC distinguishes itself from many other law reform processes.
In relation to writing, the publications of the ALRC – including its interim reports and final reports – are widely regarded as containing the best statement or source of the current law on a complex issue and are often cited by judges, academics and policy makers.
The future
As the current ALRC president, Justice Bromberg, has observed, institutional law reform bodies have an important contribution to make in helping to ensure that laws are fit for the future. Most people would agree that good law is a critical component of every well-functioning society. The importance of the law to our individual well-being, both social and economic, and to our coherence as a society cannot be overstated.
The author previously spent three-and-a-half years at the ALRC, where he was special counsel and acting general counsel. This column is based on an article written by the current ALRC president, Justice Bromberg, and the author to celebrate the 50th anniversary of the ALRC, titled ‘Fulfilling the Promise – 50 Years of the Australian Law Reform Commission’.
Andrew Godwin previously practised as a foreign lawyer in Shanghai (1996 – 2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law. Andrew is currently Joint Associate Director of the Corporate Law and Financial Regulation Research Programme at the Melbourne Centre for Commercial Law and Honorary Associate Director (Commercial law) of the Asian Law Centre. Andrew has acted as a consultant to a broad range of organisations, regulators and governments in Australia and abroad. He served as Special Counsel and Acting General Counsel of the Australian Law Reform Commission between 2020 and 2024.
