The law reform process

1.51     The scope of each ALRC inquiry is defined by the Terms of Reference. The recommendations for reform must sit within this scope and need to be built on an appropriate conceptual framework and evidence base.

1.52     A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.^[9] Pursuant to s 38 of the Australian Law Reform Commission Act 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.

1.53     The process for each law reform project may differ according to the scope of the inquiry, the range of stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry, as set out in the Terms of Reference. For each inquiry the ALRC determines a consultation strategy in response to its particular subject matter and likely stakeholder interest groups. While the exact procedure is tailored to suit each inquiry, the ALRC usually works within an established framework, outlined on the ALRC’s website.

Community consultation

1.54     Following ALRC established practice, two consultation documents were released to facilitate focused consultations in a staged way throughout the Inquiry: an Issues Paper, Elder Abuse (IP 47), was released on 15 June 2016, to coincide with World Elder Abuse Awareness Day; and a Discussion Paper, Elder Abuse (DP 83), on 12 December 2016. Both consultation documents can be downloaded free of charge from the ALRC website, and hardcopies were provided if requested.

1.55     National stakeholder consultations were conducted following the release of each of the consultation documents amounting to 117 consultations. The list of those consulted is included as Appendix 3 to this Report.

1.56     The ALRC received 458 submissions,^[10] from a wide range of people and organisations, including: individuals in their private capacity; academics; lawyers; law societies and representative groups; community legal centres; advocacy groups; peak bodies; and state and federal government agencies. Submissions from advocacy groups and community legal centres included many case studies, drawn from their experiences on the frontline, working with people who had been subjected to abuse. Such examples are included as illustrative case studies throughout this Report. The ALRC recognises that, particularly in small community-based organisations with limited resources, such involvement can have a significant impact and we thank all stakeholders for the important contribution they have made to our evidence base.

1.57     Special mention must be made of the many submissions from individuals, who generously shared with the ALRC personal stories of heartache and frustration, of families torn apart by elder abuse and who live with the painful knowledge that their loved ones suffered at the end of their lives. One individual referred to their submission as an ‘introduction to a nightmare’; another said, ‘I am a broken person’. These stories present a devastating picture of ongoing grief, loss, anger and powerlessness. The ALRC is indebted to the many individuals who made the dynamics and experiences of elder abuse painfully clear to us and so powerfully put the need for action, for something to be done.

1.58     The ALRC acknowledges the contribution of all those who have participated in the Inquiry. It is invaluable to the work of the ALRC and greatly enriches the law reform process. The ALRC records its deep appreciation to all stakeholders for this contribution.

Appointed experts

1.59     In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also received by the ALRC from members of its Advisory Committee and part-time Commissioners. The Advisory Committee for this Inquiry comprised seven members, who provided crucial input in relation to the consultative documents and final Report. Advisory Committee members also contributed to this Report by way of critical reading in the final stages. The ALRC was also able to call upon the expertise and experience, as part-time Commissioners, of the Hon Justice John Middleton and the Hon Nye Perram of the Federal Court of Australia. In addition, significant input was provided by a number of expert readers who commented on certain chapters of the Report. Their names appear in the list of participants for this Inquiry.

1.60     While the ultimate responsibility in each inquiry remains with the Commissioners of the ALRC, the establishment of a panel of experts as an Advisory Committee, and the enlisting of other expert readers, are invaluable aspects of ALRC inquiry processes—assisting in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform recommendations. The ALRC acknowledges the considerable contribution made by the Advisory Committee, the part-time Commissioners and the expert readers and expresses its gratitude to them for voluntarily providing their time and expertise.

Implementation

1.61     Once tabled in the Australian Parliament, the Report becomes a public document.^[11] ALRC reports are not self-executing documents. The ALRC is an advisory body and provides recommendations about the best way to proceed—but implementation is a matter for others. However, the ALRC has a strong track record of having its advice followed. The Annual Report 2015–16 records that 60% of ALRC reports are substantially implemented and 26% are partially implemented, representing an overall implementation rate of 86%.^[12]

1.62     Quite apart from such statistics, an assessment of the contribution that law reform work makes must have a long view. Law reform inquiries have a far bigger impact than just the implementation of recommendations, some of which may occur shortly after a report is released, some many years later. But whether or not recommendations are implemented, ALRC reports provide enormous value. Each ALRC report provides not only a mapping of law as at a particular moment in time, but in reviewing the submissions and consultations, the reports also give a snapshot of opinion on the issues being considered—providing a considerable contribution to legal history and a rich resource for policy makers, locating the issues within their particular social and legal contexts at a given time.

1.63     In making a submission to the Senate Standing Committee on Legal and Constitutional Affairs, when the Committee conducted an inquiry into the ALRC over the summer of 2010–2011,^[13] the Federal Court of Australia said that the Court benefits greatly from ALRC reports:

More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented.^[14]