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.

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. ‘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
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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
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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
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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
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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
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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
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31 October 2009

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.
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9. Consultation – traditional
• Active elements
– Formal hearings
– Produce consultation papers
– Organise meetings with experts,
peak organisations, communities
• Passive elements
– Receive written submissions
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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
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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
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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)
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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
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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. 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
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16. Increasing e-Consultation
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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)
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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)
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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
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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 …
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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
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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
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