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The Tasmania Law Reform Institute (TLRI) was established in 2001 to fill the void in institutional law reform in the State created by the demise of first, the Tasmanian Law Reform Commission in 1989 and then its replacement, the Tasmanian Law Reform Commissioner in 1997. This followed the pattern in other Commonwealth countries. Independent statutory law reform agencies flourished in the 1970s and 80s in a climate of welfare liberalism but the political changes which followed in the late 80s were accompanied by a trend to restructure and downsize or even abolish independent statutory law reform agencies or to allow them to wither away. It was in this climate that the TLRI was born. It was the inspiration of Professor Donald Chalmers, who was Tasmania’s Law Reform Commissioner at the time the government allowed the legislation supporting the Law Reform Commissioner to lapse.
The institutional model Professor Chalmers proposed was based on the Alberta Law Reform Institute, an agency based not on statute but on an agreement between the government of Alberta, the Law Society and the University of Alberta and funded primarily by the government and the Law Foundation of Alberta. The Alberta Law Reform Institute is the longest continuously running law reform agency in Canada, and one of the largest and most stable. The agreement between the University of Tasmania, the government and the Law Society to establish the Tasmania Law Reform Institute, to be based in the Law Faculty at the University, was signed in July 2001. The agreement was renewed in 2005 and again in 2008. The Attorney-General has indicated that the current agreement, due to expire at the end of 2014, will be extended.
The founding agreement provides for a Director, who is to be an academic member of staff appointed by the Vice Chancellor, and five Board members, namely the Dean of the Faculty of Law and appointees of the Chief Justice, the Attorney-General, the Law Society and the University Council. There is also provision for two co-opted members. The Board has co-opted a member of the Bar Association and a non-legal community member. The Board is assisted in its work by an Executive Officer. Long-standing members of the Board include Justice Allan Blow (from 2001 until his appointment as Chief Justice in 2013); Ms Terese Henning (the Vice Chancellor’s appointee since 2001) and Professor Kate Warner (Director since 2001).
The functions of the Institute are consistent with the mandate of a traditional law reform body, namely to review an area of the law with a view to modernisation, elimination of defects, simplification or consolidation and uniformity with laws of other States and the Commonwealth. However, unlike may law reform agencies, the TLRI can select its own projects. The agreement provides that it can accept proposals from members of the community or community groups, Parliament, the judiciary and the legal profession as well as from the Attorney-General. And it can initiate its own projects. It is required to record all proposals for projects in its minutes. It is not obliged to accept any proposal including those from the Attorney-General. It manages its own release of reports and recommendations.
In its 14 years of operation, the Institute has completed 22 projects. The majority of projects undertaken have been proposed by the Attorney-General. However, proposals have been accepted from a member of the judiciary, the Children’s Commissioner, the Vice Chancellor, a Shadow Attorney-General and members of the public. Projects cover a broad range of areas and are by no means limited to lawyers’ law or black letter law. Controversial projects have included physical punishment of children, non- therapeutic male circumcision, same sex adoption and defences for child sex offences. Limited resources are a constraint on accepting a project that is too broad and resource intensive but nevertheless, large projects have been undertaken, including projects on a Charter of Rights and Sentencing.
One of the strengths of the University-based law reform model is the access it provides to resources, both library resources and personnel. Members of the Law Faculty can be co-opted to supervise projects and students are a valuable resource. Supervised research projects for students qualifying for honours have been used to kick-start work on many projects including same sex marriage, easements, bullying, rights of appeal and the scope of the defence of consent to assault. The work of a post-graduate student funded by an Australian Research Council Linkage Grant was incorporated into the Sentencing Final Report and a post-graduate student used the Children’s Commissioner’s circumcision proposal as the topic for his LLM (Master of Laws) by research. He was then employed by the Institute to draft the Final Report. The Law School also provides the Institute with access to a pool of talented research assistants, providing the State with a cost-effective model of law reform. Students benefit too by gaining valuable experience. Working on projects for the Institute provides students with the opportunity to develop research skills, and skills associated with oral presentations, media interviews and community consultation. Benefits flow to the Law Faculty in a number of ways. TLRI projects can help instil a law reform ethos into the curriculum by providing examples of current and past law reform proposals which can be used in discussion. Projects can also stimulate ideas for research grants and publications. The Institute also makes a contribution to the public profile of the University through the release and discussion of its projects in the media.
A measure of law reform agencies success is whether or not its recommendations are implemented. The TLRI has had some success in terms of the implementation of its recommendations. Recommendations in relation to same sex adoption and vendor disclosure have been adopted. Some of the 96 recommendations in the Sentencing Final Report were adopted, including the establishment of the Sentencing Advisory Council in 2010 and changes in relation to suspended sentences. Recommendations in relation to warnings in relation to delayed complaint in sexual offence cases were largely implemented in the 2010 amendments to the Evidence Act 2001 (Tas) and recommendations in relation to the defence of mistake as to age in child sex offences were partially implemented by amendments to the Criminal Code in October 2013.
The TLRI does not confine itself to measuring its success and effectiveness by implementation rates. As a law reform agency situated at a university, the stimulation of informed debate on a contentious issue is also an important goal. This is exemplified by the Institute’s project on Same Sex Marriage. The aim of this research paper was not to make recommendations but to clarify the legal arguments about the issue to improve the quality of the debate when the matter was reconsidered by the Legislative Council in October 2013. The projects proposed by the Children’s Commissioner provide two examples where the Institute’s recommendations were controversial and have not been implemented. Nevertheless the reports stimulated much debate and provided well researched evidence-based arguments for the recommendations. Nor have the Institute’s recommendations for a Charter of Rights been adopted. However, the TLRI found widespread support for a Charter and has provided a model which a future government may be minded to implement. Consistently with its position within a university, the Institute refuses to be confined to black letter law projects and working within the constraints of its resources. It engages, when appropriate, with matters of social policy, however contentious.
The TLRI has been described as Tasmania’s ‘most interesting experiment with new law reform machinery’[1]. It has been copied in both the Australian Capital Territory and South Australia. There is a strong case that it is an experiment that has provided benefits to the University of Tasmania and to the community at large. At the same time, the limits of law reform and the challenges to an effective law reform agency in the twenty first century need to be acknowledged. It can be argued that a small law reform agency such as the TLRI, without permanent full-time research staff and limited capacity to undertake large complex projects, is mere cosmetic tokenism; that it is merely a body which can provide the government with breathing space to reduce the political heat about an issue or a convenient receptacle for a controversial matter which the government wishes to pigeon hole. Its lack of resources to respond in a timely manner mean that it can be sidelined or by-passed in favour of a government’s in-house policy unit which can produce a prompt and politically palatable solution to a problem. Challenges to the work and relevance of independent law reform bodies include the rise of the public voice and new forms of communication such as Internet chat rooms, talk-back radio and constant polling. Together with the decline in the influence of experts and traditional forms of expert discourse of which the work of law reform agencies is an example, couched as it is in the method and style of rationalist legal discourse, to remain relevant, engage the public and to retain the ear of government is not an easy task. The challenge for the Institute is to continue to produce high quality work that is not merely valuable to experts in the field (such as students and academics), but to engage the public in informed debate on important legal and social issues and to provide independent advice to government which is, at least, then carefully considered.
About the author: Emeritus Professor Kate Warner, LLB (Hons), LLM (UTAS), held every position from tutor to Dean and Head of the Law School at the University of Tasmania from 1972 to 2014. She was a founding Director of the Tasmania Law Reform Institute. In December 2014 she was appointed Governor of Tasmania.
