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Kirby, Michael --- "The Law Reform Commission and the Essence of Australia" [2000] ALRCRefJl 32; (2000) 77 Australian Law Reform Commission Reform Journal 60


Reform Issue 77 Spring 2000

This article appeared on pages 60 – 61 of the original journal.

The Law Reform Commission and the essence of Australia

By Justice Michael Kirby*

The Australian Law Reform Commission is 25 years old. In its first quarter century it has chalked up many notable achievements. Major federal laws (and some state laws too) have been adopted based on its enquiries and reports. As well, the reports have influenced the decisions of courts and administrative practices. Most importantly, from the start, the Commission has lifted the profile of law reform in Australia. It no longer belongs to back-room committees of judges and lawyers. Now ordinary citizens are involved in the development of all proposals.

The Commission began in an unconventional way. In 1974 I had just been appointed a judge of the Arbitration Commission. I was in charge of the industrial relations of the maritime industry of the nation. In the crevices of my mind I could see the ships flashing their signals one to the other on the dark seas: ‘Winston’s back!’

I walked into an elevator in Temple Court, Sydney, in December 1974. Who should follow but Lionel Murphy, Federal Attorney-General. ‘Come up and have a glass of champagne,’ Lionel demanded. ‘You’re just the person I’m looking for. I want you to be chairman of the Law Reform Commission.’ I blinked. My reactions were those of a typical lawyer. ‘Law reform. Law reform! Aren’t things bad enough as they are?’ But Lionel was persistent. I could not keep up with his capacity for champagne. He lifted his glass in a seventh toast. Unsteadily I lifted mine. Down the hatch. I thought: ‘Better send a wire to the fleet, ‘Winston’s had it. He’s gone.’’

Although I naturally like to portray those earliest days as a solo recital, the fact is that we were a sextet. Gareth Evans, later Foreign Minister; Gerard Brennan QC, later Chief Justice of Australia; John Cain, later Victorian Premier; Alex Castles, doyen of Australian legal history; and Gordon Hawkins, renowned criminologist. It was a powerful team from the start. One by one others came and departed. Each one added to the Commission’s unique harmony.

The methodology of the ALRC was distinctively Australian. Our approach of public hearings and use of the media was congenial to a country of robust and egalitarian individualists.

Whose legal problems did the ALRC address? On the symbolic eve of Corroboree 2000, I would mention first Aboriginal Australians and Torres Strait Islanders, too often the victims of the inequality of the law as it works in practice; women; the young and the aged; the humble citizen overborne by big and powerful government; the insolvent and those who cannot cope with the credit economy; consumers; victims of domestic violence; people dislocated by marriage breakdowns and property disputes; an accused criminal suspect facing the mighty power of the state; a brave citizen who makes a complaint against police; prisoners; members of our multicultural society not fluent in English — in short, the people who otherwise often lose out in the law. They were all a major focus of the ALRC’s early endeavours. Justice for them was an important motivation of the Commission. To some extent the big end of town and the big battalions could look after themselves. But in the process of legal change, the poor and the powerless are often disadvantaged. Now they had an institutional voice in the ALRC.

I wish, in those far-off days, that the humours of the time, and greater courage on my own part, might have led me to do more for another minority taught by the centuries to hide itself — homosexuals and others disadvantaged by the law because of sexuality. The ALRC has never been required by the Attorney-General to enquire into the many legal disadvantages suffered by gays and lesbians. Instead, the passion that taught me to understand disadvantage, discrimination, denigration, humiliation and oppression by law was channelled, with the ALRC, into different causes: causes of injustice, discrimination and disadvantage equally urgent, equally important. If you taste the cup of discrimination in life, the dregs are bitter. But they give you a special strength to make sure, when you can, that others do not suffer wrongs through law. More powerfully than Lionel Murphy’s champagne, they teach you that the good old days in the law were not so good after all. That equal justice under law is an aspiration yet to be realised in Australia. That regular law reform is vital to a civilised society. That the Australian Law Reform Commission’s mission, and that of the other law reform institutions in Australia and far beyond, is a noble one. It is one which strengthens and deepens the rule of law itself. It helps parliaments to bring equal justice under law to all people.

The ALRC is now an established part of our nation’s institutional furniture. In 25 years it has achieved much. But more important than congratulations is this abiding message: Law is sometimes unjust and often unattainable for the ordinary Australian. The business of law reform is to help law-makers balance the scales for all Australians — our community — without discrimination. This is a message that is still important for Australians to hear. This is a message that goes beyond mateship, ANZAC, snipped tall poppies and claimed egalitarianism. It goes to the very essence of what it should be to be Australian.

*The Hon Justice Michael Kirby AC CMG of the High Court was the ALRC’s first Chairman. This is an extract from an address, given at the ALRC’s 25th Anniversary Dinner, Sydney, 19 May 2000.


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