ALRC Program for the Future of Law Reform - 2020-2025
Monday 8 June 2020 @ 9.48 a.m. | Corporate & Regulatory | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research
The Australian Law Reform Commission (ALRC) has developed a program to look at the most pressing areas for law reform in Australia today and in 2019 it undertook research and broad public consultation to address the question. On 2 December 2019, the ALRC released a final report setting out suggestions for "an ambitious agenda for law reform over the next five years [2020-2025]. The report was launched by the President of the ALRC, the Honourable Justice Sarah Derrington, and the inaugural Chairman of the ALRC, the Honourable Michael Kirby AC CMG.
The process of preparing the report, according to Justice Derrington, involved extensive research and consultation with the ALRC having:
- released two preliminary research papers,
- held six public seminars and webinars around Australia,
- conducted an online survey and received over 400 responses,
- involved law students from two universities in research, and
- held a number of consultations with stakeholders including government departments.
Areas of Law Reform
Five areas of law are suggested for review by the ALRC and according to an ALRC Media Release, if accepted by the Attorney-General (Cth) "the report could map out the work of the ALRC over the next five years". The five areas of law reform identified are:
Principle-based regulation of financial services: A future ALRC law reform inquiry could consider whether reforms to the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), and any other relevant Commonwealth law should be made. Reforms would be aimed at simplification and rationalisation of the regulation of financial services, consistent with recommendations of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Hayne Royal Commission) [see recommendations 7.3 and 7.4].
The Hayne Royal Commission identified an urgent need to, simplify the law in order to regulate more effectively the financial services industry, legislation needs to ". . . identify more clearly the principles underlying specific provisions, to ensure the intent of the law can be understood and followed". The ALRC considers an inquiry could make a significant contribution by demonstrating how in practice this could be achieved. Such an inquiry is also seen as building on the ALRC’s current inquiry into Corporate Crime. The ALRC has suggested a time-frame of 36 months, with potential for interim reports on discrete aspects of the topic.
Automated decision making and administrative law: Automated decision making is increasingly common in our society and this includes government departments, see for example; the issues around the "Robo Debt" program. Algorithms and AI may present opportunities for increased efficiency and accurate decision making, but they have also been the subject of controversy.
An ALRC inquiry could examine whether the law could better safeguard "fair and transparent outcomes" and consider whether reforms are necessary to ensure that the automated decisions made by government agencies are fair, transparent, accountable, and timely. The ALRC has suggested a 24 month time-frame for this inquiry.
Defamation laws: This area of law has struggled to come to terms with modern developments in media and communications technology, and an ongoing debate has also developed regarding the appropriate balance between freedom of expression and the protection of reputation. A recent development has been the involvement of federal courts in defamation disputes which have traditionally been considered to be the work of state courts. The ALRC views an independent federal defamation inquiry as an opportunity to build on the work of other reviews conducted at state level.
A future ALRC law reform inquiry, according to the ALRC, could examine whether reforms to the Model Defamation Provisions and any other Commonwealth laws should be made in order to "modernise, rationalise, and enhance the law of defamation and its practical application". The ALRC has also suggested a 24 month time-frame for this inquiry.
Press freedom and protection of public sector whistleblowers: This according to the ALRC has recently been a "hotly debated" topic and an ALRC inquiry, according to the ALRC, could examine whether any changes to the law may be required to appropriately protect press freedom, and whether changes are needed to make laws protecting public sector whistleblowers clearer and more effective. A future inquiry could consider whether reforms to Commonwealth laws should be made in order to appropriately protect public interest journalistic activity, and to protect whistleblowers in the public service. A 24 month time-frame is also suggested for this inquiry.
Legal structures for social enterprises: Social enterprises are considered to be organisations that seek to make money, but that have also committed to social or environmental goals and objectives. There is a view that existing legal structures fail to reflect the needs of social enterprises. A future ALRC inquiry could examine whether new corporate structures should be introduced and whether reforms should be made to the Corporations Act 2001 (Cth), the Australian Charities and Not-for-profits Commission Act 2012 (Cth), and any other relevant Commonwealth laws so as to provide for the establishment of an appropriate corporate structure for social enterprises. The ALRC has suggested a 12 month time-frame for an inquiry into this topic.
Additional Topics
In Chapter 3 the ALRC has indicated another eight law reform topics the ALRC considers to be significant, but which have not been included in the suggested program of work. The ALRC says in the report that it "invites the Government to consider the topics in this chapter [3] as potential alternative topics to those suggested" The additional topics are:
- the establishment of a standing body to oversee ongoing reform of the Australian Constitution;
- coherent, effective, aligned, streamlined, and clear laws for environmental protection;
- simplifying and enhancing the operation of migration legislation;
- drafting statutes to enhance the coherence, readability, and use of the law, especially in light of the anticipated transition to digital legislation;
- the rights of creditors of an insolvent trustee, particularly when trust assets may be insufficient to meet creditors’ claims;
- uniformity between state and territory surrogacy laws;
- regulation of debt management services, ‘buy now pay later’ services, or services targeting people at risk of financial hardship; and
- human tissue laws that can accommodate emerging technologies, are nationally consistent, and do not operate as barriers to organ and tissue donation.
Comments
An ALRC Media Release quotes the President of the ALRC, the Honourable Justice Sarah Derrington, as saying at the Reports launch:
Justice Derrington further noted that:
According to the Media Release by the ALRC, the report highlights that the best inquiry topics are those that "play to the particular strengths of the ALRC, including independence from government, impartiality, legal expertise, and a transparent consultative process".
Continuing the Program with Webinars
On 19 May 2020 the ALRC announced that it would in July and August 2020, host a Future of Law Reform Webinar Series to continue the discussion. The webinars
would involve expert panels that included judges, legal scholars and industry leaders
in a series of online conversations to unpack some of the key areas identified by
the ALRC, including: defamation, automated decision making, social enterprises and
press freedom.
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