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Australian Law Reform Commission - Reform Journal |
Reform Issue 81 Spring 2002
This article appeared on pages 1 & 87 of the original journal.
Comment
Professor David Weisbrot
Over this past two years, the ALRC has been immersed in two very different categories of law reform projects.
One sort has involved the ALRC reviewing older pieces of legislation – the Judiciary Act 1903 (Cth) and the Marine Insurance Act 1909 (Cth). The central consideration in each of those reviews (since completed) was whether the legislation – with many sections unchanged over the years – continued to be relevant to contemporary needs and circumstances. For example, the Judiciary Act initially was drafted at a time when the High Court of Australia was the only federal court, caseloads were very much smaller, and the Northern Territory and the ACT were not self-governing. The Marine Insurance Act, modelled upon the English laws of that era, was developed well before modern communications technology came into being, and well before other forms of insurance law were modernised and modified in the interests of consumers.
These inquiries required the ALRC not only to consider the particular statutory provisions still in force, but also to consider the way in which the law has been interpreted and given effect in practice, as well as the implications of any change for industry and commerce, the legal profession and the courts.
The other sort of law reform project has been the ones at the cutting edge of changing social understandings and practices, giving rise to the need for new legal frameworks. The current review of Civil and Administrative Penalties comes at a time when our regulatory systems increasingly rely upon non-criminal processes and penalties to provide the speed and flexibility needed to ensure compliance. While there is a long history of parliamentary and judicial development of criminal laws, procedures and safeguards, civil and administrative penalties have exploded on the scene in recent years. Questions the ALRC must consider in this inquiry are the importance of consistency of principle and practice across the many regulatory fields (customs, taxation, corporate regulation, environmental protection, and social security, among others), as well as the extent to which criminal safeguards (for example, the burden of proof, and rules against self-incrimination and double jeopardy) should be imported into civil jurisdiction, where the penalties may be significant.
The current joint inquiry into the Protection of Human Genetic Information – conducted in association with the Australian Health Ethics Committee of the National Health and Medical Research Council – examines the ethical, legal and social implications of the rapid advances in genetic science and technology. The central concerns of the Inquiry are to ensure that our privacy and anti-discrimination laws are up to the challenges of the ‘New Genetics’, and that our ethical standards represent world’s best practice in this area. The current and potential uses of genetic information are so vast that the inquiry ranges widely over such contexts as medical research, clinical practice, insurance, employment, genetic databases and tissue banks, immigration, parentage testing, and law enforcement uses.
Both types of project are important to an ongoing law reform program. Each has the aim of ensuring that our laws are equitable, modern, fair and efficient, whether these amount to modification of existing laws, procedures and institutions, or the development of new ones. The ALRC believes that the best way to achieve this outcome is to ensure the widest possible community engagement with each of its law reform inquiries. (The last issue of Reform detailed some of the ways in which the ALRC has encouraged public participation, including an Australia-wide series of public forums and meetings for the inquiry into the Protection of Human Genetic Information.)
It should not be too surprising to note that the cutting edge legal issues under consideration are often of similar concern to other countries. The ALRC has found it valuable to share ideas and proposals with comparable bodies and expert individuals in the United Kingdom, Canada, the United States, and a number of European countries. The ALRC specifically hosted an international conference on civil and administrative penalties with this kind of collaboration in mind. The ALRC also has visited countries in North America, Europe and Asia to develop close contacts in relation to the regulation of the use of human genetic information, and followed these up with regular electronic communications. In turn, ALRC community consultation papers and reports have been in very heavy demand overseas.
By early 2003, the ALRC will complete its current set of inquiries. Discussions are underway with the Attorney-General about potential new projects to be referred to the ALRC. Based upon experience, it can be anticipated that the ALRC’s future work program will involve a combination of review of existing laws and practices, together with a leap into new territories of legal and social policy.
One of the motivations for designating ‘elder law’ as the theme for this issue of Reform was to see if this area might throw up some issues that would serve as the basis for a future inquiry. As the various authors in this edition explain so well, the challenges of an aging population may test Australian governments, laws and institutions (social, legal and economic) every bit as much as the New Genetics.
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/2002/13.html