Opeskin, Brian --- "Law Reform in a Federal System" [2001] ALRCRefJl 8; (2001) 78 Australian Law Reform Commission Reform Journal 29

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Reform Issue 78 Autumn 2001

This article appeared on pages 29– 34 & 72 of the original journal.

Law reform in a federal system

By Brian Opeskin*

In his 2000 Boyer Lectures, the Chief Justice of Australia, the Hon Murray Gleeson AC, remarked that ‘the law, like any other human creation, has defects, some of them serious. It is in constant need of improvement’.¹

The need for reform arises for many reasons. Institutions fashioned in a past age may no longer meet the demands placed on them by a growing population that functions in an increasingly globalised economy; developments in technology may generate problems that human society has not previously encountered; social attitudes and values may have changed in ways that need to be reflected in the law; and old laws may need to be refreshed to modernise their language and remove obsolete provisions.

The processes of law reform in Australia take place within the context of a federal system of government. The hallmark of a federation is that it is a ‘mode of political organization that unites smaller polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both national and sub-national political systems’.² The sharing of power, which characterises federations, does not offer a model of efficiency – it may often result in duplication of effort, conflict between competing policies and laws, and significant gaps in coverage. However, as Chief Justice Gleeson also noted, our legal culture sets store by all manner of inefficient things because there are other values that override considerations of expediency.³

Although law reform is often regarded as synonymous with legislative change, a broader understanding of the term ‘law’ helps to inform our knowledge of the mechanisms and institutions that play a part in the process of reformation. Law reform clearly encompasses reform of the statute books but also extends beyond this to other types of law. First, it extends to basic laws – the constitutions of the Commonwealth and the states. The centenary of federation, which is being celebrated this year, is a reminder of the historic processes that led to the establishment of the Commonwealth Constitution in 1901, and of the processes that have been invoked since that date to deliberate about change to the basic law. This has included a recent popular Constitutional Convention (1998), a Constitutional Commission (1988), a biennial meeting of delegates in the Australian Constitutional Convention (1973–1985), a parliamentary inquiry (1958) and a Royal Commission (1929).

A second aspect of law reform concerns changes to judge-made law. Lord Tennyson once famously described the common law as ‘That codeless myriad of precedent, That wilderness of single instances’,⁴ reflecting the decentralised law-making processes that characterise the application of known principles to new facts and the incremental development of new principles to meet novel situations. The common law is often regarded as conservative in the sense that it is a backward-looking system built on the foundation of precedent. That is true, but it does not mean that the common law is stagnant. In a well-known case Lord Denning MR once observed:

‘What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.’ ⁵

Striking an appropriate balance between tradition and change is a challenge for judges, but cases such as Mabo and Wik on the relevance of the doctrine of terra nullius to native title claims are a reminder that judges do engage in law reform, especially in the High Court, which is at the apex of the judicial system in all matters of state and federal jurisdiction.⁶

Agents of change

Law reform is a polycentric process and is effected through many different agents. Mention has already been made of the role of judges, who are appointed to courts that are organised along federal, state and territory lines, but are brought together in their law-making function through the overarching role of the High Court. Other agents of law reform are discussed below in outline, though these by no means exhaust the range of relevant institutions.

Ministerial Councils. Intergovernmental relations have bloomed since the 1950s. Ministerial Councils, and their supporting committees of government officials, now exist in every major portfolio. A compendium of Commonwealth-State Ministerial Councils currently lists 21 functional groupings. These Councils may set legal policy at the highest level through the Council of Australian Governments (COAG). Within specific portfolios, Ministerial Councils may hammer out agreements for uniform or complementary laws across Australian jurisdictions.

Internal review by government departments. Law reform is also initiated by policy-makers within government departments. For example, in the late 1990s the Competition Policy Agreement required government departments at all levels to review legislation within their portfolios to ensure compliance with national competition principles. At a state level, similar processes of review have been initiated from time to time in relation to delegated legislation, in an effort to reduce the cost to business of compliance with government regulation.⁷ Internal reviews may also be initiated in response to concerns about the operation or adequacy of existing legislation.

Advisory bodies. Advisory bodies vary widely in their degree of permanence and the subject matter of their reviews. Some are set up on an ad hoc basis and are disbanded once they have reported on the subject matter in question. Others are permanent institutions, though again they vary according to whether they review specialised areas of law (eg Family Law Council, Copyright Law Review Committee) or examine any area of law referred to them. Law reform agencies in Australia are generally of the latter type, receiving references on a wide range of areas. The references currently before the ALRC illustrate the breadth of operation – current references include marine insurance, human genetic information, civil and administrative penalties, and the exercise of federal judicial power.

Parliamentary committees. Once legislation is proposed, internal review within the parliamentary committee system may also have a significant bearing on both the general direction of law reform and the details of implementation. For example, reviews by the Senate Legal and Constitutional References Committee or the Scrutiny of Bills Committee can often identify potential difficulties with draft legislation, such as an unjustified infringement of individual rights and freedoms. Problems identified in this way may result in changes to legislation and therefore have a very immediate impact on the content of the law.

The federal problem

Although law reform agencies in Australia are advisory bodies, their raison d’être is to promote law reform through implementation of their recommendations. This will usually involve legislative action by way of enactment of a new statute or amendment to an existing one. While these democratic processes are entirely proper, the need for legislation underscores two major hurdles in achieving Australia-wide reform. The first is that state laws are essentially territorial in character. Each state constitution grants to its parliament power to make laws ‘for the peace, welfare and good government’ of that state.⁸ Although it is permissible for state laws to have a legal operation beyond the territorial boundaries of the state, unless there is some nexus between the law and the state the law cannot fit the description of one ‘for the peace order and good government’ of that state. The consequence of this is that, for most practical purposes, the implementation of a reform recommended by a state law reform agency can travel no further than the boundaries of that state.

The second problem occurs at the federal level because the Commonwealth parliament is one of limited powers – it can only make laws with respect to the heads of power enumerated in the Constitution.⁹ Reform of other subject areas may in fact be desirable from a policy perspective but if those subject areas fall outside the ambit of federal power, the implementation of those reforms lies with the states. On the other hand, if a recommendation does fall within the ambit of federal power, there is no territorial impediment to giving such a law Australia-wide effect.¹⁰ The Constitution proclaims that ‘all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth notwithstanding anything in the laws of any State’.¹¹

The combination of state laws that are limited in territorial scope and federal laws that are limited in subject matter has created the practical necessity for the harmonisation of laws in many situations. This is not true in every case – some local reforms may be well tailored to meet local problems. As Justice Brandeis of the United States Supreme Court remarked, ‘It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’¹² However, in many cases the recommendations of a law reform agency in one jurisdiction are at least worthy of consideration in another jurisdiction. This leads to the question: how well-suited are Australian law reform agencies to meet the challenges of harmonisation of law reform?

In an interesting analysis of the impact of provincial law reform agencies in Canada during the 1970s, Thomas Mapp concluded that the benign efforts of provincial law reform agencies had led to a severe erosion of uniformity within Canada.¹³ The author put this down to two factors: these agencies controlled the lion’s share of the resources available for provincial law reform in Canada (in contrast to the poorly funded Uniform Law Conference of Canada), and with rare exceptions the provincial law reform agencies had made no serious attempts to organise their resources to produce uniform acts. Although documenting some degree of loose cooperation between agencies, the author could find no instances in which agencies coordinated their efforts to produce a joint report recommending an Act that could serve as the model for a uniform Act.

No equivalent study has been made of Australian law reform agencies, but there are reasons to think that they would fare considerably better than their Canadian counterparts of a previous generation. It is worth noting that some Acts establishing law reform agencies in Australia acknowledge the importance of harmonisation in the work of the agency. The Act establishing the ALRC lists among its functions the consideration of proposals for (a) uniformity between state and territory law and (b) complementarity of Commonwealth, state and territory laws.¹⁴ In a similar vein the functions of the Tasmanian Law Reform Commissioner include consideration of proposals relating to ‘uniformity between laws of the State and laws of other States and the Commonwealth’.¹⁵

The way in which the ALRC goes about achieving uniformity or complementarity differs according to the context in which the question is raised. For example, in its 1992 report Choice of Law (ALRC 58), the Commission recommended the enactment of choice of law rules for all courts exercising federal jurisdiction, whether those courts be federal or state. This was to be supplemented by uniform state laws, which would provide identical choice of law rules for state courts when exercising state jurisdiction. By contrast, the Commission’s reports on evidence in 1985 and 1987 recommended comprehensive legislation on evidence for all federal and territory courts.¹⁶ If Australia-wide uniformity were to be achieved, this would be done by each state enacting a law in identical terms for all evidential matters arising in their courts, regardless of whether the matter was one of state or federal jurisdiction. While the means of achieving the goal of Australia-wide uniformity differed, both reports relied on some form of complementary state legislation.

In contrast to the founding legislation of the ALRC and the Tasmanian Law Reform Commissioner, other Acts establishing law reform agencies contain no express mention of the function of harmonisation or unification of law and might, in that respect, be enhanced. However, it is clear that the general functions of law reform entrusted to these organisations are in no way antithetical to coordinated strategies. In practice, as the following section shows, Australian agencies have used this flexibility to develop strategies for coordinating the law reform process in some instances.

Coordinating strategies for law reform agencies

Effective law reform in a federal system requires effective strategies for coordinating the efforts of the various agents engaged in the process. A failure to coordinate may generate many of the problems identified above, including duplication of effort, ineffective reform due to gaps in the legislative framework, or conflict between contradictory reforms.

One type of coordination occurs between agencies within the federal level of government. For example, from time to time the ALRC has undertaken joint projects with other federal agencies. At the moment the ALRC is engaged in a joint project with the Australian Health Ethics Committee (AHEC) on legal and ethical issues relating to the use of human genetic information (see ‘Genetic information – privacy and discrimination’, p 39). In the past, joint projects have been undertaken with the Human Rights and Equal Opportunity Commission, the Companies and Securities Advisory Committee, and the Administrative Review Council (ARC). These joint arrangements are enhanced by institutional links such as the ALRC’s membership of the ARC and its observer status with the Family Law Council.

Coordinating strategies such as these appear to be sensible arrangements but they have no obvious federal implications. In each case the reporting bodies must tender their advice to the same federal minister, or at the least to different ministers within the same government. It is a very different situation when one speaks of coordination between law reform agencies accountable to different governments. In those situations one is faced with differing political priorities, differing resources to undertake research and consultation, and differing legal capacities to effect reform. Nonetheless there have been some important attempts at coordination. The following sections examine joint projects, sequential projects and information sharing, as examples of these coordinating strategies.

Joint projects. Joint projects between law reform agencies have been undertaken infrequently in the past, and rarely between federal and state agencies. An example of a joint project was the work done in 1992 by the ALRC in conjunction with the New South Wales Law Reform Commission (NSWLRC), the Victorian Law Reform Commission (VLRC) and the Queensland Law Reform Commission (QLRC) on personal property securities. This resulted in a joint discussion paper¹⁷ but agreement on the policy to be pursued could not be reached before the ALRC was required to report in May 1993.

In 1991 another joint project was commenced in relation to uniform succession laws for Australia. The project was approved initially by the Standing Committee of Attorneys-General (SCAG), and in 1992 the QLRC took over coordination of the project at the request of the Queensland Attorney-General. In its early years, every Australian jurisdiction and New Zealand was represented on a national committee. Victoria, Western Australia and New Zealand no longer play an active role in relation to the reference. The national committee has reported to SCAG on the law of wills and has produced two discussion papers on other topics, but by any reasonable standard the rate of progress on this reference must be regarded as slow.

These experiences illustrate some of the difficulties of conducting joint law reform projects within a federal system. Effective collaboration requires the broad policy and work program to be settled jointly by the participating organisations, which may prove difficult due to disparities in approaches and methodologies. Government priorities may change mid-stream, which presents particular difficulties for research projects that span several years. To take an extreme example, during the currency of the reference on personal property securities the VLRC was actually abolished, though it has recently been resurrected. Budget and staffing vary enormously between agencies, with the practical result that research and administrative infrastructure may have to be provided principally by one agency. And some agencies, such as the ALRC, may be excluded from effective participation in a project because the polity to which they are responsible lacks power to implement any resulting recommendations.

Sequential projects. The difficulties inherent in joint projects can sometimes lead to other methods of avoiding duplication of law reform effort. This can occur where one agency produces a report, which is then considered by another agency before legislative action in that other jurisdiction. Social scientists call this process ‘modelling’ since it involves a practice by which one actor observes, interprets and copies the action of another. The attraction of modelling has been described by Professor Braithwaite in the following terms:

‘Pre-packaged models have enormous appeal to actors in both legislative and executive branches of the state for a simple reason. They have limited time and energy and a limitless range of issues on which they would like to be seen to be making progress. ... Hence, when someone can deliver to them a pre-packaged model that is good enough, it is often an efficient use of their time to buy it instead of initiating a search for the best solution.’¹⁸

The history of law reform in Australia reveals several examples of this process. A good instance is the ALRC’s report, Evidence (ALRC 38), which was tabled in federal parliament in 1987. That report recommended a single comprehensive evidence law to apply to federal courts wherever they sat in Australia and was implemented by enactment of the Evidence Act 1995 (Cth). The ALRC clearly considered it desirable that other jurisdictions adopt the same law of evidence in respect of proceedings brought within state courts. In June 1988 the NSWLRC published a report recommending that the bulk of the ALRC’s report be adopted in New South Wales. That report took the form of a commentary on the ALRC’s proposals, with the NSWLRC stating that in light of ‘the lengthy and detailed consideration given by the ALRC to its final recommendations, we are of the view that it is both unnecessary and unwise to repeat the investigation and consultation undertaken and to restate the detailed reasons for adopting particular proposals’.¹⁹ A New South Wales Evidence Act followed in 1995. In 1999, the Law Reform Commission of Western Australia (LRCWA) also recommended the substantial adoption of the ALRC’s recommendations as enacted in the Evidence Act 1995 (Cth).²⁰

Sharing information. Sharing information about current projects, recent recommendations, and the implementation of past reports also serves a worthwhile function in coordinating the efforts of law reform agencies within the federation. Currently, this is achieved in two main ways.²¹ First, the ALRC acts as a clearinghouse for law reform information in Australia, as well as within parts of the international community. Twice a year this journal, Reform, gives details from many agencies of publications, work in progress and implementation. It also includes a subject-by-subject list of agencies undertaking work in particular areas of law. During the 26 years of the ALRC’s existence there have been many changes to the status of law reform commissions in the states and territories and the ALRC has provided a continuous focus for law reform during this time. Second, the Australasian Law Reform Agencies Conference (ALRAC) is held every two years to exchange information about specific references and, more generally, about the process of law reform. The 20th conference is to be held in Darwin in 2002.

*Brian Opeskin is a Commissioner with the Australian Law Reform Commission.

Endnotes

1. AM Gleeson Boyer Lectures 2000: The Rule of Law and the Constitution ABC Books Sydney 2000, 4.

2. DJ Elazar American Federalism: A View from the States (3rd ed) Harper & Row Publishers New York 1984, 2.

3. AM Gleeson Boyer Lectures 2000: The Rule of Law and the Constitution ABC Books Sydney 2000, 10.

4. Lord Tennyson Aylmer’s Field (1864).

5. Packer v Packer [1954] P 15, 22.

6. Mabo v Queensland [No 2] (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1.

7. See eg Regulation Review Act 1987 (NSW), Subordinate Legislation Act 1989 (NSW).

8. See eg Constitution Act 1902 (NSW), s 5.

9. Principally in s51 of the Constitution.

10. Indeed, the external affairs power in s 51(xxix) of the Constitution supports federal laws with respect to persons, matters or things beyond the territorial limits of Australia. See Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183.

11. Covering clause 5 Commonwealth of Australia Constitution Act 1900 (Imp).

12. New State Ice Co v Liebmann 285 US 262, 311 (1932).

13. TW Mapp ‘Law Reform in Canada: The Impact of the Provincial Law Reform Agencies on Uniformity’ (1982) 7 Dalhousie Law Journal 277.

14. Australian Law Reform Commission Act 1996 (Cth), s 21(d), (e). The original legislation did likewise: see Law Reform Commission Act 1973 (Cth), s 6(1)(d).

15. Law Reform Commissioner Act 1988 (Tas), s 7(1)(c).

16. Australian Law Reform Commission Evidence (Interim) ALRC Sydney 1985 (ALRC 26); Australian Law Reform Commission Evidence ALRC Sydney 1987 (ALRC 38).

17. ALRC DP 52; NSWLRC DP 28 (1992). The VLRC and the QLRC jointly published a separate discussion paper.

18. JBraithwaite ‘A Sociology of Modelling and the Politics of Empowerment’ (1994) 45 British Journal of Sociology 445, 462.

19. NSWLRC Evidence Report 56 (1988), 5.

20. LRCWA Review of the Civil and Criminal Justice System (1999), 169–175.

21. Previously the ALRC produced the Law Reform Digest, summarising the law reform proposals made by law reform agencies throughout Australia, New Zealand and Papua New Guinea from 1910 to 1985.