On the ground and on tap—law reform, Australian style

Abstract

ABSTRACT Being governmental, the law reform processes of a country are closely associated with the constitutional framework of the country concerned. In the case of Australia, the framework combines English and American constitutionalism. Professor Saunders neatly describes the result as ‘hybrid, derivative but eventually Australian’. After a brief overview of sources of law reform advice in Australia, the article focuses on one part of Australian law reform processes—law reform bodies established by statute that advise in a particular area (‘specialist statutory advisors’). The main question the article poses is—like the constitutional framework, are specialist statutory advisors ‘hybrid, derivative but eventually Australian’? The research hypothesis is informed by an influential stream of Australian historical and legal thought. A number of commentators have propounded that Australian democracy is distinctive, and that Australians have time and again accepted a commanding role for government, and continue to give it great respect. It is said that Benthamite utilitarianism and legislation lie at the heart of the dominant political ideology. The article examines the Australian law reform scene in the light of these theories. The research hypothesis is that these distinctive aspects of Australian political life will manifest themselves in processes of law reform, namely specific legislative processes for facilitating law reform. The article identifies and analyses specialist law reform agencies established under statutes passed by parliaments of the Commonwealth, the States, and the Territories. This analysis is followed by an assessment of specialist advisors. They are compared with two other types of law reform bodies: Ministerial committees and generalist law reform bodies. The article concludes by reflecting on how specialist statutory advisors reflect the country’s constitutional framework. In their own way—on the ground and on tap—they too are found to be ‘hybrid, derivative but eventually Australian’.