From Public Engagement to Public Policy: Competing Stakeholders and the Path to Law Reform
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Transcript of 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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Banff Conference on Public Participation
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
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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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
Banff Conference on Public Participation
31 October 20099
Banff Conference on Public Participation
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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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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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Banff Conference on Public Participation
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
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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)
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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)
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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
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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 …
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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
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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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