©Law Society Journal (Used by permission)
By Anne Susskind
First published in Law Society Journal, Vol 49, No. 5 June 2011
Law reform is a slow, considered, perhaps lumbering creature and cannot be rushed too much if it is to maintain its integrity – a process that does not always sit well with government timetables.
The Australian Law Reform Commission is feeling the pressure, as Anne Susskind reports.
“The Australian Law Reform Commission is a bit like a torn and tatty security blanket. It has little practical function but it provides comfort to lawyers that the profession still has noble goals of law reform at heart even if they are they now more focused on turning a buck.” So said the Australian Financial Review (AFR) in a recent Friday legal section.
Despite the pasting, ALRC President Ros Croucher was as resilient as ever by the following Monday. She is, she told LSJ in a pre–arranged interview, a Pollyanna, always trying to look on the bright side.
ALRC president for the last year and a half, and a commissioner for three years previous to that, and former dean of law at Macquarie University, Croucher heads an organisation which has suffered from, in her words, “massive” funding cuts in recent years, and had an “incredibly destabilising” staff decrease.
“We have gone from 30 in 1997 to 15 today, and seven of these positions have been lost in the last two years,” she says. The situation is “perilous”, “absolutely stretched” and the ALRC is at the “finest we can go”.
But, she maintains, her “streamlined” team now is “high energy, fantastic”, and very efficient in its new, much smaller premises in the heart of the CBD, in the MLC Centre, where the ALRC is sub–leasing from the Australian Government Solicitor – an agency that has also been contracted. A big staff turnover means most of the current employees have never known the ALRC any other way, and are appreciative of the opportunities and high level exposure to all sorts of people, judges and academics included.
Quite what the government agenda is, “is anyone’s guess”. Perhaps it is bound up with a different conceptualisation of what a law reform commission should be, and might be about centralising the ALRC, “pulling it into the centre.”
But Croucher says that staying in Sydney, in the CBD, instead of moving to Canberra or another location, is part of being seen to be independent, and critical to the “leverage we can secure”.
The ALRC, Croucher says, has tremendous support from the legal profession, at every level, from a core of experts from all around the country.
Big firms offer their expensive time pro bono, as do “incredibly generous” community legal centres and their coalface workers, all of which she takes as testament to the belief that the commission is doing a good job and seen as independent of government. Its independence has been a “defining precept” since the ALRC’s establishment by then Attorney–General Lionel Murphy in 1975. There’s “confidence in the product”, and that it may generate some tangible outcome – as she believes has been shown with the recent ALRC report on family violence, which has “fed strongly into the momentum already there”. She says, too, that the Commonwealth Attorney–General, Robert McClelland, has publicly expressed his respect and support for the ALRC’s work (despite the budget cuts).
“If we ask to see someone, they say ‘yes’. In the discovery inquiry, we had a number of meetings, each of which would have been an hour and a half, and in each of those, we might have had half a dozen of the top partners in a law firm. If you costed that time, it’s massive.
“We’re taken seriously, so we get considerable pro bono contributions – the free stuff. The time, energy and thoughtfulness that the profession provides is one of the absolute gems in the whole law reform process. It adds huge value to the integrity of the process, particularly through bodies like the Law Council. The Law Society of NSW has also been an active contributor. From a small base, we’re able to generate a lot of gain.”
Part–time commissioners are all judicial officers who contribute voluntarily. While process expertise drives law reform, subject expertise, provided by advisory committees, consultants and in submissions, drives the integrity in the specific area, Croucher says. Her job, she says, is to direct the process, not determine the outcome.
The ALRC does not enter the process with a perspective: “Part–time commissioners are involved, and it is a collective process that determines the outcome. If you start by knowing the outcome you want to achieve, then that’s a very bad process.”
The AFR article also said the ALRC’s most recent reports have been “extended thickets of information dumps and are near unreadable”. Croucher bristles at this, too, and says it’s out of date.
“There is a bit of a tension between policy–makers and law reform projects. If the outcome is a big book, the policy makers’ eyes may glaze over, so very deliberately and in response to a perception that we were just creating doorstops, I wrote a summary report for the first family violence inquiry last year. It was the bridge. Even though there was an executive summary in the front of these big reports, it was not meeting its audience, so the idea of the summary report – published separately – is that it’s something they can throw in their briefcase and read on the plane between Canberra and Sydney. It’s what they would require someone in the department to do. It’s the accessible format of the report, and the press release is the one–pager. But the full report provides the evidence base that gives integrity to the process and the product overall.”
Croucher, whose academic work was under the name Atherton, said her scholarly life before the commission could most aptly be described as that of a “legal historian”. Her doctorate from UNSW was in legal history in the areas of inheritance and property law, particularly in relation to women and children.
All her legal history work had always had, as a premise, “a pursuit of why the law is as it is, an unravelling, into the background, the story, rather forensically”.
“The work that I’m proudest of is a set of legal pieces driven by this premise. What is the rationale for the existing law? To have an intelligent assessment of the policy direction for the future, you have to understand the direction that led to the present.
“The first point in any law reform project is an understanding of the context of the law. The transition to law reform was a natural next stage to all of my research work in terms of method.”
For an institutional law reform body like the ALRC, she says, the key is the development of intellectual capital in the law reform process, a methodology which you can transpose to any subject. An inquiry into family violence, or the discovery of documents in federal courts, or classification, all used the same methodology, “tailored to fit the timeframe you’ve got”.
Time is a real problem, she says. Political timetables are often very different from those required to do the consultation necessary to get a valid outcome. Being in a hurry is not conducive to good law reform. For example, the current inquiry into classification and censorship, which reports in January next year, has “quite a few different perspectives out there” which need to be heard for its findings to have the integrity they should for government.
“It’s a hard one. The timetable is too short. When you have a project that has got, or is likely to have, wide stakeholder views, it needs time so those views can be properly heard, otherwise the outcome may be compromised. The legitimacy partly depends on the opportunity that stakeholders have had to be heard, and that takes time. It’s an ongoing tension.
“Getting into the guts of why law is why it is, and what should be the motivation for change, are deeply philosophical questions, so you see the problem in those terms, as not just an amendment to a particular section in a particular act, but rather what is the whole surrounding rationale or legal philosophy for the form in which the legislation is now – why we have legislation of this kind. The legal responses to the social issues of family violence, for example, are an articulation of a public response, in what has traditionally been a very private sphere. To have legislation in that area at all is a mark of a singular transition of the role of the public and private. Law reform seen in that way is deeply philosophical.”
Time is needed so the process itself can be properly consultative. Otherwise, the ALRC can be accused “of being down the corridor in the department or in an ivory tower like an academic”.
A marvellous space
What she likes is that her work has the intellectual integrity of an academic project but is anchored “very squarely” in an arena which can have economic and social outcomes. It is, she says, a “marvellous space” for her, using all the skill sets she’s developed: the academic, research and conceptual skills, and also her management skills, which she needs for running a government agency, as well as communication skills for interacting with the most senior people in the legal profession, the judiciary and other areas of expertise.
“You need all of that, your smarts and respectful engagement that you’ve honed in senior portfolios, plus there’s people management.”
It is perhaps like conducting a chamber orchestra, where individuals play particular instruments very well, but to get them playing together is really the challenge. Her role is a bit like the combination of the conductor and the first fiddle, says Croucher, and, speaking of music, mentions that she considered a career as a musician, playing the oboe in an orchestra full–time at one stage and studying law around her orchestral timetable.
“I fell in love with the sound of it when I was 12. I always wanted to sing, and the oboe was probably nearest to my singing voice.”
She would, however, probably have wanted to run the orchestra.
“You see things disorganised, and you want to organise them. Some people are head boy or head girl throughout their whole lives. I’m one of those, it’s a character flaw,” says Croucher, who was head girl at Ascham, a school which she says gave her confidence in her own work, and taught her to project–manage her life and to meet assignment deadlines – as well as good manners, she says.
She also likes the intellectual engagement with words, and music might not have fully satisfied that. So now she sings in the Bar Choir, which is great fun, and allows her to connect all that musical experience with understanding the “instrument in my body”.
The Bar Choir suits her, because it’s loose – if you’re there, you’re there; if not, you’re not. It’s a fluctuating group of lawyers who often were instrumentalists who are too busy to fit in other musical commitments.
Current ALRC inquiries are into the National Classification Review Scheme, and family violence and Commonwealth laws. Discovery of documents in federal courts was finished at the end of March, and will be tabled soon. Copyright, which the Attorney–General has flagged, would be next, Croucher said.
Good projects for the ALRC to manage are those where the laws are archaic, such as sedition, or where there is a need to harmonise laws nationally, and where thorough consultation by an independent body is required.
Projects referred to the ALRC have to be amenable to its nature, she says, and the nature of law reform.
Sometimes she is asked why not “hot potato” topics like climate change, or refugees?
Climate change, she says, is not a good one for a federal law reform body because most of the law in there is about planning, which is actually state–based and local, and can even be municipal.
“Climate change is a big issue, but in terms of law reform, it’s actually not a federal law reform project. Something like migration is … We’re doing some work on that, and employment, in our second, follow–on inquiry on family violence, which is family violence and Commonwealth laws. Migration is one of a subset of issues.
“If someone comes here on a spousal visa and there’s violence and they want to leave that partner, there’s a sense of ‘What about their visa’? Are they going to lose that visa, is their visa dependent on their partner who’s a violent partner and are they going to have to go ‘home’?”
Topics where government has a particular outcome in mind are also clearly not good for the ALRC. “Very political topics, where the government wants to drive a particular outcome, are not topics for the law reform process. The government needs to be able to trust us to determine the outcome, based on our processes.”
On FOI, when the “plug was pulled” with the change of government, Senator John Faulkner, who was in charge of the area, had already signalled implementing a raft of changes (which the ALRC and the Administrative Review Council had recommended 15 years earlier), so the project had been overtaken.
“It was sensible to say we’ll maybe come back to FOI in five or six years to review what’s going on, and do another project – ironically the project we got was secrecy laws (completed in 2009).
“It was one we’d suggested in a previous report because there were secrecy provisions all over the Commonwealth statute books, and inconsistencies. It was a good law reform project, because there were 500–odd secrecy provisions, two thirds of which imposed criminal penalties.”
The good ones are those where it is clear that there will be a quite a few stakeholder views: “We get submissions from lots of government departments, they want reform, but they might want different reforms. People say things to us, even from within government, that they may not be able to say if it were a government process. If their department was leading the process, it’s a process toward a determined outcome, the policy is determined.
“It’s a fairly mannered thing, but independence is the key, an independence of process and also the fact that we are not working to a determined outcome. While you may want to go further, and are perhaps very touched by all the stories about family violence, you have to retain a dispassionate perspective to ensure focusing on the brief under terms of reference. The terms of reference determine what we can and cannot do.”
And sometimes, she says, the problems are at the service end, and no law reform brief can tackle those.
Born: Arncliffe, Sydney
Education: Ascham School, University of Sydney, University of NSW
Academic qualifications: BA(Hons), LLB, PhD, AMusA, FRSA, FACLM(Hon), FAAL, TEP
1982 – 1999: legal academic at University of Sydney and University of NSW
1998 – 2005: Vice President (Western Pacific), International Academy of Estate and Trust Law
1999 – 2007: Dean of Law, Macquarie University
2002: Chair, Council of Australian Law Deans
2004: Chair, Scientific Committee, World Congress of Medical Law
2004: Honorary Fellow, Australian College of Legal Medicine
2007: Foundation Fellow, Australian Academy of Law
2007 – 2009: Commissioner, Australian Law Reform Commission
2008: elected to the Society of Trusts and Estates Practitioners
2009 – present: President, Australian Law Reform Commission (on leave from chair in Law at Macquarie University while at ALRC).