Weisbrot, David --- "Comment" [2000] ALRCRefJl 1; (2000) 76 Australian Law Reform Commission Reform Journal 1

---

Reform Issue 76 Autumn 2000

This article appeared on pages 1 & 98 of the original journal.

Comment

Long before 'globalisation’, ‘benchmarking’, and ‘world’s best practice’ became household words, law reform commissions instinctively understood that a comparative approach to legal research and policy formation was essential.

The starting point for work on any inquiry is to inform the international network of law reform agencies of the new reference, and to consult the international literature – both primary materials, such as cases and statutes, and secondary literature, such as books, articles in scholarly journals, and official reports.

A good law reformer appreciates the historical and contingent nature of existing laws and processes, and thus the value in looking at and learning from what has worked well elsewhere – and, at least as importantly, what has failed. A good comparative lawyer also appreciates the complex and delicate operation of justice systems, and is wary of urging the transplantation of bits of one system into the body of another, without a careful assessment of the ramifications and prospects for success in this new environment.

The federal nature of law and politics in Australia is often seen as a frustration for reformers, since achieving a basic harmony of laws and procedures requires extensive and continuing negotiation. However, the positive side of federalism is that it encourages experimentation and innovation, and provides a ready source of comparative ideas and information in roughly similar circumstances. Within the broader Commonwealth of Nations, there is also an excellent opportunity to compare experience with a multitude of countries that share a common legal heritage. It would be the rare law reform commission report that did not contain a large number of references to overseas experience and literature.

The new information and communications technology greatly enhances the ability of law reformers to undertake comparative work efficiently and effectively. Where it once took many months for letters and parcels of books and materials to travel internationally, it now takes a few moments through the use of e-mail. The Internet puts whole law libraries easily within reach.

Working from home on a chapter of the Commission’s recent report Managing justice: a review of the civil justice system (ALRC 89), I realised that I simultaneously had open before me, with little difficulty, materials from the homepages of the ALRC, the Law Council of Australia, the Federal Court of Australia, the University of the South Pacific, the Lord Chancellor’s Advisory Committee on Legal Education, the South Dakota Judicial Commission, and the World Bank.

The Commission is delighted to serve the flow of information in the other direction through our own upgraded web-site <http://www.alrc.gov.au> . In 1999, we had more than 106,000 successful requests for pages, or about 300 per day. In months in which the Commission had released a new document, we received about 15,000 requests.

The personal touch is also important – this year, the ALRC will host four law reform officers from Singapore and Malawi, providing an important opportunity for the exchange of ideas, experiences and techniques.

The attachment of officers from Singapore is in preparation for the establishment in April of the first free-standing Law Reform Commission in that Republic. It is interesting to note that the Canadian Law Reform Commission, which had been abolished as a cost-cutting measure, was re-established in 1997 (as a ‘Law Commission’), and the new government in Victoria has announced its intention to re-establish the (likewise abolished) Law Reform Commission in that state very soon.

In another important area of public policymaking the Australian government recently flagged its intention to establish ‘a high-powered Australian Strategic Policy Institute to provide it with independent, contestable advice on defence and national security policy’ (Australian Financial Review, 23 February 2000, 4). The ALRC welcomes this move – there is little doubt that the development of public policy is greatly assisted by the activities of an independent, expert body charged with stimulating and opening up debate on matters of national importance.