from public engagement to public policy: competing stakeholders and the path to law reform

From Public Engagement to Public

Policy: Competing Stakeholders

and the Path to Law Reform

David Weisbrot, ALRC President

Banff Conference – 31 Oct 2009

Banff Conference on Public Participation

31 October 2009

‘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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31 October 2009

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

3


31 October 2009

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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31 October 2009

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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31 October 2009

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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31 October 2009

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

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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Consultation – traditional

• Active elements

– Formal hearings

– Produce consultation papers

– Organise meetings with experts,

peak organisations, communities

• Passive elements

– Receive written submissions


31 October 20099


31 October 2009

‘Patented’ Law Reform Process

Terms of reference

Research

Advisory Committee Further research

Issues Paper

Consultations

Discussion Paper

Submissions

Consultations

Final Report

Submissions

Further research

Consultations

Final Report tabled in

Parliament

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31 October 2009

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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31 October 2009

Application to many contexts

• Medical/scientific research

• Clinical genetics

• Systemic health care issues

• Human genetic databases, tissue banks, registers

• Employment

• Insurance

• DNA Forensics

• Kinship and Identity (immigration, parentage, ethnicity/Aboriginality)

• Other right, services (eg education, aged care, sports)

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31 October 2009

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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For Your Information: Australian Privacy

Law and Practice (3 vols, ALRC 108, 2008)

Gov’t recently responded to the first tranche – 197/295 Recommendations –

accepting 90%

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

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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 submissionsBanff Conference on Public Participation

31 October 200915

Increasing e-Consultation


31 October 200916

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)


31 October 200917

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)


31 October 200918

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


31 October 200919

Some lessons: process

• consultation strategy must be carefully

tailored to the particular issues, communities

• expensive

• time-consuming

• exhausting

• repetitive

• ‘pure research’ is easier

BUT …


31 October 200920

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


31 October 200921

Banff Conference on Public Participation 31

October 2009

For further information

• ALRC website: all papers, reports

available at <www.alrc.gov.au>

• Email: [email protected]

• Fax: (+61-2) 8238 6363

• Post: GPO Box 3708

Sydney NSW 2001

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