3.1. The Law Reform Process

The Australian Government identifies an area of Commonwealth law that needs to be updated, improved or developed for various reasons i.e. public concern

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The ALRC (Australian Law Reform Commission) conducts research with ‘stakeholders’

(these may include government departments, courts, legal professionals, industry groups, non-government organisations, special interest groups etc.)

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An Issues Paper and/or Discussion Paper is made

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The ALRC makes a formal call for submissions whenever it releases an Issues Paper or Discussion Paper

(Through the submissions it receives, the ALRC can gauge what people think about current laws, how they should be changed and can test its proposals for reform)

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Each inquiry culminates in the production of a Final Report. The Final Report must be delivered to the Attorney-General by the date specified in the Terms of Reference. The recommendations in the Final Report describe the key reforms that the ALRC considers should be made either to laws or legal processes

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The Attorney-General is required to table the Final Report in Parliament within 15 sitting days of receiving it, after which it can be made available to the public

 

—  The Australian Government decides whether to implement the recommendations, in whole or in part

—  No set time frame in which the Government is required to respond

—  Implementation of ALRC recommendations is tracked and recorded each year in the ALRC’s Annual Report

 

What are the implications of law reform?[1]

Law reform seeks to:

-       simplify and modernise the law;

-       improve access to justice;

-       remove obsolete or unnecessary laws;

-       eliminate defects in the law;

-       suggest new or more effective methods for administering the law and dispensing justice;

-       ensure harmonisation of Commonwealth, state and territory laws where possible;

-       monitor overseas legal systems to ensure Australia compares favourably with international best practice;

-       alter out-dated or misguided societal values on a bureaucratic level.

 

Law Reform Commissions[2]

Law reform is a collaborative process.  Law Reform Commissions conduct intensive research in order to identify key societal issues or possible areas for reform. This research relies heavily on academic literature and empirical studies. Commissions engage with stakeholders and industry experts through extensive consultation. Commissions then discuss their preliminary ideas for reform in consultation papers or question papers.[3] 

Anyone can make a submission to the ALRC on a reference. Any public contribution to an inquiry is called a submission and is crucial in assisting the ALRC to develop its proposals for law reform. Submissions are addressed to ‘Response to a Discussion Paper’. There is no set format for submissions; they may be online or written. For each inquiry, once a consultation paper has been released, the ALRC develops an online submission form designed to help stakeholders address the specific questions or topics.[4]

When attempting to engage in policy development or reform and improve the legal system as an individual or as part of a lobby group, keep in mind:

-       being informed about the issue is crucial; the most effective submissions are well researched;

-       qualitative research and statistical evidence are particularly persuasive;

-       drafting is a crucial process for accuracy and comprehensiveness;

-       structuring the submission with headings and subheadings will ensure it is easy to follow;

-       gaining the support of, or teaming up with, appropriate influential entities can strengthen your position;

-       suggesting change is necessary is not always sufficient, providing realistic possibilities for reform is more effective;

-       the proposal may not necessarily be welcomed by all members of the public, therefore persistence and passion are key if you believe your proposed reform will be of great benefit.[5]

 

The Australian Law Reform Commission (‘ALRC’)

Established in 1975, the ALRC is a permanent, independent federal statutory corporation, operating under the Australian Law Reform Commission Act 1996 (Cth). The ALRC conducts inquiries - known as references - into areas of law reform at the request of the Attorney-General of Australia.

While accountable to the federal Parliament for its budget and activities, the ALRC is not under the control of government, giving it the intellectual independence and ability to make research findings and recommendations without fear or favour.

Although ALRC recommendations inform government decisions on law reform, they do not automatically become law. However, the ALRC has a strong record of its advice being followed. Nearly 80 per cent of the ALRC's reports have been either substantially or partially implemented - making it one of the most influential agents for legal reform in Australia[6].

The ALRC's focus is on federal laws and legal processes. The ALRC must always ensure that the laws it reviews are consistent with Australia's international obligations to uphold the civil liberties and human rights of its people.

 

State & Territory Law Reform Commissions[7]

Law reform commissions also operate within each state and territory. These commissions review the laws applicable to their respective jurisdictions and seek to meet the specific needs of the people residing in that state or territory. These organisations are also independent statutory bodies.

State based law reform commissions provide legal policy advice to Government on issues that are referred to the commission by the Attorney General (called “references”).  They prepare reports which comprehensively analyse the issues identified in the reference and make recommendations to Government for legislative reform. State law reform commissions also receive, analyse and present submissions from stakeholders and interested members of the public. A project is completed when a final report  is tabled in Parliament and made public on their website.

Case study: Shopfront Youth Legal Centre

Shop Front Youth Legal Centre is a legal service provider for people aged 25 years and under who are homeless or disadvantaged. The community legal centre is also involved in making submissions to government and parliamentary enquiries in an effort to improve laws and policies, particularly those affecting the youth or disadvantaged.[8]

An example of a submission collated by The Shop Front Youth Legal Centre in January 2014 can be viewed at the following website… http://www.theshopfront.org/documents/Parole_-_submission_on_QP_6.pdf. This particular submission was prepared in response to a discussion paper on parole, more specifically, Question Paper 6: Parole for young offenders. Each question is responded to in a clear and succinct manner, with realistic suggestions made for appropriate reform. The authors of this paper have sought to emphasise how the juvenile justice system recognises that young offenders are not “little adults”. Rather that they require different treatment, as made clear in our international obligations under the United Nations Convention on the Rights of the Child and the Beijing Rules.[9]