From Public Engagement to Public
 Policy: Competing Stakeholders
   and the Path to Law Reform

    David Weisbrot, ALRC P...
‘New principle of law reform’
1970s: Prof Geoffrey Sawer’s ‘new
principle of law reform’ = systematic,
liberal, modernisat...
Institutional law reform charters
• Systematically develop and reform law, by:
  - Adapting the law to current conditions,...
LRAs Across the Commonwealth …
• England and Wales (1965),
  Scotland, N Ireland; Ireland
• Canada (most provinces)
• Cari...
The ‘post-modern’ sensibility
• questioning the ‘traditional
  certainties’, authorities and institutions
• appreciation o...
Further attributes of a 21stC LRC
   Thus, to survive and thrive, a LRC
   must now also be:
      generalist
      interd...
Beyond ‘war stories’
• 4-year review of the federal
  civil justice
  system, completed Jan 2000
• Empirical analysis of o...
Tailored consultation
• Deep commitment to public consultation =
  the essential and distinguishing feature
  – Michael Ki...
Consultation – traditional
• Active elements
  – Formal hearings
  – Produce consultation papers
  – Organise meetings wit...
‘Patented’ Law Reform Process
 Terms of reference                                   Consultations
                       C...
Final Report – ALRC 96 (2003)
• 144 recommendations –
  directed at 31 bodies,
  including the Cth Govt
• Dr Francis Colli...
Application to many contexts
• Medical/scientific      • Employment
  research                • Insurance
• Clinical genet...
Public engagement – Genetics (’01-03)
• Advisory Committee
  – clinical geneticists, researchers, bio-
    ethicists, cons...
For Your Information: Australian Privacy
      Law and Practice (3 vols, ALRC 108, 2008)
                                 ...
Public engagement – Privacy (’06-08)
• Broad-based advisory committee
   plus 3 specialist sub-committees: health, credit...
Increasing e-Consultation




           Banff Conference on Public Participation
                      31 October 2009   ...
Indigenous Advisory Committee
• ALRC’s Reconciliation Action Plan 2009
  (RAP)  establish an Indigenous Advisory
  Commit...
Dealing with stakeholders
• Managing expectations (what can the ALRC
  report cover, recommend, achieve)
• Dealing with th...
Dealing with stakeholders … 2
• population geneticists, researchers
  vs privacy advocates
• business & employer groups vs...
Some lessons: process
• consultation strategy must be carefully
  tailored to the particular issues, communities
• expensi...
Some lessons: outcomes
• important to move from monologue or dialogue to
  discussion (ie, stakeholder interaction)
• the ...
For further information
• ALRC website: all papers, reports
  available at <www.alrc.gov.au>
• Email: info@alrc.gov.au
• F...
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From Public Engagement to Public Policy: Competing Stakeholders and the Path to Law Reform

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Presentation given by the President of the Australian Law Reform Commission, David Weisbrot, at a conference on The Future Of Public Consultation, held in Banff on 31 October 2009.

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From Public Engagement to Public Policy: Competing Stakeholders and the Path to Law Reform

  1. 1. From Public Engagement to Public Policy: Competing Stakeholders and the Path to Law Reform David Weisbrot, ALRC President Banff Conference – 31 Oct 2009
  2. 2. ‘New principle of law reform’ 1970s: Prof Geoffrey Sawer’s ‘new principle of law reform’ = systematic, liberal, modernisation of law, using technocratic bodies, with 4 key attributes: permanent full-time independent, and authoritative Banff Conference on Public Participation 31 October 2009 2
  3. 3. Institutional law reform charters • Systematically develop and reform law, by: - Adapting the law to current conditions, needs - Removing defects, and obsolete or unnecessary laws - Simplifying the law - Adopting new or more effective methods of administering the law and dispensing justice - Improving access to justice - Consolidating, harmonising laws • While having regard to: - Personal rights and liberties, the ICCPR, Australia’s international obligations - The costs of gaining access to, and dispensing, justice Banff Conference on Public Participation 31 October 2009 3
  4. 4. LRAs Across the Commonwealth … • England and Wales (1965), Scotland, N Ireland; Ireland • Canada (most provinces) • Caribbean: Jamaica, T&T • Asia: India, Pakistan, Sri Lanka, Hong Kong • Africa: South Africa, Namibia, Malawi, Lesotho, Kenya, Uganda, Tanzania (Botswana planning for 2009) • Pacific: A&NZ, plus PNG, Samoa Solomon Islands Banff Conference on Public Participation 4 31 October 2009
  5. 5. The ‘post-modern’ sensibility • questioning the ‘traditional certainties’, authorities and institutions • appreciation of the complexity of social institutions/problems, and of competing interests • power much more diffused, and not entirely invested in the formal organs of government • not all issues and disputes are ‘legal’ • increasing desire for direct participation in civil society and in public policy-making Banff Conference on Public Participation 31 October 2009 5
  6. 6. Further attributes of a 21stC LRC Thus, to survive and thrive, a LRC must now also be: generalist interdisciplinary and empirical consultative and implementation-minded Banff Conference on Public Participation 31 October 2009 6
  7. 7. Beyond ‘war stories’ • 4-year review of the federal civil justice system, completed Jan 2000 • Empirical analysis of over 4000 case files + follow-up interviews with lawyers and parties • 400 written submissions • 800pp, 144 reform recommendations • Largely positive Government response in 2004 Banff Conference on Public Participation 7 31 October 2009
  8. 8. Tailored consultation • Deep commitment to public consultation = the essential and distinguishing feature – Michael Kirby: ‘law reform is much too important to be left to the experts’ • Challenge in designing effective consultation • Properly done, it confers benefits: – for those consulted; – for the process/quality of law reform; and – enhanced effectiveness and acceptability of the law once reformed. Banff Conference on Public Participation 31 October 2009 8
  9. 9. Consultation – traditional • Active elements – Formal hearings – Produce consultation papers – Organise meetings with experts, peak organisations, communities • Passive elements – Receive written submissions Banff Conference on Public Participation 31 October 2009 9
  10. 10. ‘Patented’ Law Reform Process Terms of reference Consultations Consultations Research Submissions Submissions Advisory Committee Further research Further research Final Report Consultations Discussion Paper Issues Paper Final Report tabled in Parliament Banff Conference on Public Participation 10 31 October 2009
  11. 11. Final Report – ALRC 96 (2003) • 144 recommendations – directed at 31 bodies, including the Cth Govt • Dr Francis Collins: ‘a truly phenomenal job … placing Australia ahead of what the rest of the world is doing’. • Whole-of-Government response on 9 Dec 05 accepts almost all of the recommendations Banff Conference on Public Participation 11 31 October 2009
  12. 12. Application to many contexts • Medical/scientific • Employment research • Insurance • Clinical genetics • DNA Forensics • Systemic health • Kinship and Identity (immigration, parenta care issues ge, ethnicity/ • Human genetic Aboriginality) databases, tissue • Other right, services banks, registers (eg education, aged care, sports) Banff Conference on Public Participation 12 31 October 2009
  13. 13. Public engagement – Genetics (’01-03) • Advisory Committee – clinical geneticists, researchers, bio- ethicists, consumers, lawyers, judges, public health administrators, insurers, actuaries, privacy and discrimination commissioners, forensic scientists • Consultation documents – IP, DP, but also: postcards, brochures, website, • 15 public forums held around Australia • c250 targeted meetings • c400 written submissions Banff Conference on Public Participation 31 October 2009 13
  14. 14. For Your Information: Australian Privacy Law and Practice (3 vols, ALRC 108, 2008) Part A - Introduction Part B - Developing Technology Part C - Inconsistency, Fragmentation Part D - The Privacy Principles Part E - Exemptions Part F - Office of the Privacy Commissioner Part G - Credit Reporting Part H - Health and Research Part I - Children, Young People and Adults Requiring Assistance Part J - Telecommunications Part K - Protecting Personal Privacy Gov’t recently responded to the first tranche – 197/295 Recommendations – accepting 90% 14
  15. 15. Public engagement – Privacy (’06-08) • Broad-based advisory committee  plus 3 specialist sub-committees: health, credit reporting and emerging technologies • 3 major consultation papers, but also – shorter, more accessible summary docs – National Privacy Hotline (phone, web) – specially designed consultations for kids – ‘Talking Privacy’ website for kids … • 250 meetings, roundtables and workshops  beyond dialogue to stakeholder interaction • 600 written submissions Banff Conference on Public Participation 31 October 2009 15
  16. 16. Increasing e-Consultation Banff Conference on Public Participation 31 October 2009 16
  17. 17. Indigenous Advisory Committee • ALRC’s Reconciliation Action Plan 2009 (RAP)  establish an Indigenous Advisory Committee to advise on: – potential subject matter for future ALRC inquiries – strategies, protocols for better consultation with Indigenous communities, organisations – (twinning, recruiting, internships &c) Banff Conference on Public Participation 31 October 2009 17
  18. 18. Dealing with stakeholders • Managing expectations (what can the ALRC report cover, recommend, achieve) • Dealing with the language of ‘rights’ – when interests (predictably) compete and collide across the spectrum of activities considered • Peak associations • Campaigns • Personal/family stories • Love/hate and the media (love the ABC, hate Fox) Banff Conference on Public Participation 31 October 2009 18
  19. 19. Dealing with stakeholders … 2 • population geneticists, researchers vs privacy advocates • business & employer groups vs trade unions • transnational business vs privacy advocates • custodial mothers vs ‘father’s groups’ • lenders vs consumer advocates • law enforcement authorities vs civil libertarians Banff Conference on Public Participation 31 October 2009 19
  20. 20. Some lessons: process • consultation strategy must be carefully tailored to the particular issues, communities • expensive • time-consuming • exhausting • repetitive • ‘pure research’ is easier BUT … Banff Conference on Public Participation 31 October 2009 20
  21. 21. Some lessons: outcomes • important to move from monologue or dialogue to discussion (ie, stakeholder interaction) • the language of (absolute) rights is very unhelpful • specific case studies, stories  valuable in identifying common ground, ‘common sense’ • feeling genuinely ‘listened to’ is critical for subsequent legitimacy – whatever the final call • definitely produces better policy formulation, especially at the practical level (cf high order) – which is where almost all interactions occur Banff Conference on Public Participation 31 October 2009 21
  22. 22. For further information • ALRC website: all papers, reports available at <www.alrc.gov.au> • Email: info@alrc.gov.au • Fax: (+61-2) 8238 6363 • Post: GPO Box 3708 Sydney NSW 2001 Banff Conference on Public Participation 31 October 2009 22

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