Professor Marcia Neave, Centre for Applied Philosophy and Public Ethics, University of Melbourne
11 August 2004
- Defining Terms
- Four Main Issues
- Changes in the Nature of Law Reform
- Some Basic Ethical Obligations?
- Intellectual Rigour
- Deliberative Democracy
- An Ethical Law Reform Process
- Creating opportunities for meaningful participation
- Fair processes
- Not raising false expectations
- Acknowledging disagreement
- Case Study for Deliberative Democracy – Assisted Reproduction and Adoption
How do law reformers deal with ethical issues? Here are some of the questions which the Victorian Law Reform Commission has had to deal with in its first four years:
- Should people who kill when they are in a rage be treated by the criminal law as less culpable than people who kill in cold blood?
- How should the criminal law treat a woman who kills her sleeping partner because he has abused her for many years?
- To what extent should a person’s race and culture be seen as relevant in determining whether their culpability for killing another person is reduced?
- Should gay and lesbian couples be eligible for infertility treatment to enable them to have children?
- Should a lesbian woman’s female partner be recognised by the law as a parent of a child who has been conceived with her agreement?
- Should employees have any right to privacy while they are working?
- Should employers be legally entitled to electronically monitor their employees?
All these questions arise in areas of law which have been referred to the Victorian Law Reform Commission by the Attorney-General. My purpose is not to discuss the answers to these questions, but rather to talk about the way that law reform commissions should go about their work. The main question I consider is whether there are ethical and unethical ways of going about law reform and public policy reform. I will illustrate some of the ethical dilemmas that law reform commissions face by drawing on examples from the Victorian Law Reform Commission’s references on sexual offences law and the laws regulating assisted reproduction.
My argument deals with the ethical responsibilities of bodies which have been established by parliament solely or mainly for recommending changes to areas of law or procedure in subject areas which have been referred to it by the Attorney-General.I call this ‘institutional’ law reform.These ethical obligations are not necessarily relevant to otherbodies which provide advice on policy issues or law reform to government, such asRoyal Commissions, ad hoc advisory committees of experts appointed by government, government departments and inter-departmental committees.
What do I mean by ‘law reform’? Justice Astbury, an English Judge once complained of ‘reform, reform, aren’t things bad enough all ready?’ Unfortunately the word ‘reform’ is sometimes used simply as a substitute for the word ‘change’. I would prefer to avoid Orwellian doublespeak.
When I use the word reform I mean reform in the more optimistic sense used by Professor (now Justice) Ronald Sackville, who in 1983 described law reform as a process of adapting law to meet changing social needs. The change is intended to make the content of the law or the way that the law operates in practice fairer, more accessible and better adapted to solving human problems. By using reform in this sense I do not mean to suggest there is always agreement about how this can be achieved. Often there will be dispute and argument. But I am assuming that all those involved in the dispute are intending to improve things. They are not simply trying to avoid a difficult political issue or wanting to appear to be doing something with the intention that nothing will really change. Nor are they simply engaged in trying to shore up existing sources of power.
The Concise Oxford Dictionary defines ethics as ‘the science of morals in human conduct’. I argue below that law reform commissions have some distinctive ethical obligations, which flow from the part they play in the democratic process. What are the ethical issues which arise in doing law reform and what is an ethical law reform process?
Four Main Issues
In answering this question it is necessary to consider four main issues. First, it is necessary to take account of changes in the work of law reform commissions which have occurred since the 1970s. I argue that these changes make it particularly important to develop a set of ethical principles to guide the law reform and policy making process.
Secondly, I consider the extent to which guidance about ethics is provided by legislation that establishes law reform commissions. I argue that although the legislation is usually silent on this issue, some ethical responsibilities are implicit in the creation of a separate body to undertake law reform.
Thirdly, I suggest that one of the most important functions of an institutional law reform body is to contribute to the building of deliberative democracy, through processes of open and fair community discussion. I will discuss the approach which law reform commissions in Canada, England and Australia have taken to community consultation. I argue that consultation imposes ethical responsibilities and make some suggestions about what these might be.
Finally, I will discuss how this idea of deliberative democracy can be applied in one of the Victorian Law Reform Commission’s current projects – our reference on assisted reproduction technology and adoption. How should the Commission decide what changes should be recommended to government in an area where there is widespread social disagreement?
Changes in the Nature of Law Reform
In Australia there is a federal law reform commission, the Australian Law Reform Commission, and separate state law reform commissions in New South Wales, Queensland, and Victoria.
When law reform commissions were originally established in many Commonwealth countries their main purpose was to modernise and simplify the law. For example, the 1973 Law Reform Commission Act, which established the Australian Law Reform Commission, said that its functions were to modernise and simplify the law, to eliminate defects and to encourage the adoption of more effective methods of legal administration.
Given this conception of their role, it is not surprising that much of the early work of commissions was in relatively dry areas of technical law. Although the subjects covered may have excited lawyers, they were rarely of interest to the media or the general community. When commissions consulted on these issues they mainly talked to academic and practising lawyers and judges.
By the early 1980s, however, both the work of law reform commissions and their approach to consultation began to change. Science had moved ahead of the law in a number of areas. Governments began to ask commissions to look at legal issues which crossed the boundaries between ethics, science and law. For example, in the 1980s the use of human tissue in transplants required the creation of new laws. Also in the 1980s, the New South Wales Law Reform Commission was asked to advise the government on regulation of assisted reproduction. In the past 10 years law reform bodies have also had to consider how to deal with DNA evidence and the issue of genetic privacy, as the result of scientific advances in the area of gene technology.
The work of law reform commissions also changed because federal and state commissions began to advise governments on broad social policy issues. For example, in 1981 the New South Wales Law Reform Commission was asked to make recommendations on reform of the law relating to family and domestic relationships. The terms of reference for this inquiry were broad enough to cover same-sex families, though the Commission’s recommendations only applied to heterosexual couples. Similarly, in the early 1990s the Australian Law Reform Commission was asked to consider the reform of family property laws. The Victorian Law Reform Commission has received references on reform of sexual offences law, defences to homicide, family violence, workplace privacy, and assisted reproduction. All these references raise difficult ethical and moral issues, which require Commissioners to make value judgments about questions which are likely to be very controversial. These references require different types of research and different policy making processes to the technical legal questions which were traditionally referred to law reform bodies.
Changes in the kinds of references which commissions received required them to reconsider how they should encourage community participation and consultation. Commissions began to experiment with different ways of encouraging public responses to law reform proposals. Today it is common for governments to hold focus groups and undertake surveys of public opinion. It is often forgotten that law reform commissions were in the vanguard in developing these techniques.
Some Basic Ethical Obligations?
What ethical obligations guide law reform commissions when they are designing public consultation processes and making recommendations to government? As a lawyer my first response to this question is to look at the legislation establishing the body. The laws which establish standing law reform bodies rarely provide guidance on the ethical values which the Commission is expected to bring to the task of law reform. The English Law Commission, for example, was set up to keep under review ‘all the law’ with a view to its systematic improvement, but the criterion for judging whether or not a change was an ‘improvement’ was not clearly spelled out.
Along similar lines, the federal Attorney-General Kep Enderby’s second reading speech explaining the reason for establishing the Australian Law Reform Commission alluded to government’s responsibility to ensure the law was suitable to the needs of the time and reflected ‘current values and philosophies’, but left open what these values and philosophies might be. The Victorian Law Reform Commission Act is completely silent about the values on which its law reform proposals should be based.
The lack of legislative guidance on ethical principles provided to law reform commissions can be contrasted with the more explicit statements of values in other legislation that creates statutory bodies with more specific purposes, for example bodies with responsibility for protecting privacy or preventing discrimination. The federal Privacy Act requires the Privacy Commissioner in the exercise of his or her functions to ‘ have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information. Similarly, the State Equal Opportunity Act articulates clear objectives, including the acceptance of the principle of equality of opportunity and the elimination of discrimination and harassment.
Why does legislation establishing standing law reform bodies not include statements of ethical principles? One reason may be that it was originally assumed that the work of law reform commissions would usually involve technical legal craft, rather than making choices between competing moral principles.
Another reason may be that it is simply impossible for the legislation to make useful ethical statements which can apply broadly to the wide range of projects a commission is likely to be asked to consider.
Despite the absence of general ethical principles in the legislation establishing law reform bodies, I argue that there are three broad principles which should guide institutional law reform. These principles can be inferred from the conventions which have guided law reform commissions from the time they were first created. The three principles I propose are independence, intellectual honesty and rigour and community involvement.
First, the creation of a standing statutory body to provide law reform and policy advice distinguishes law reform commissions from bodies which also advise the executive, such as government departments. There would be no point in establishing a separate body if it simply replicated the work of government departments. Because commissions were created as entities separate from government, we must act independently of government.
Independence is partly a matter of legal structure. Ideally, a law reform commission should receive its funding directly from parliament, rather than have it passed on by a government department. But independence also means independence of thought. This means that the views of executive government or the concerns of the bureaucracy cannot determine our policy recommendations. We should never make a recommendation simply because this is what is wanted by the government of the day.
Law reform commissions have historically taken this obligation of independence very seriously. In Victoria, one of the reasons given for the abolition of the former law reform commission was that it was insufficiently independent of government. I do not believe that view was well-founded. Today, there seems to be considerable recognition of the value of independence. When the Attorney-General launched the Victorian Law Reform Commission he said that it was ‘independent of government to enhance the integrity of the advice provided’.
The ethical principle of independence means that commissions should leave political judgments to politicians. It is up to the government to decide whether to introduce legislation to implement a commission’s recommendations. In framing its recommendations, the commission should never limit its proposals to what is likely to be politically acceptable.
However, drawing the line between making practical recommendations which have a chance of being implemented and only making politically acceptable recommendations is not always clear. Let me give you an example. When the New South Wales Law Reform Commission considered reform of family relationships laws in the early 1980s, it decided to deal only with heterosexual relationships. This view was taken because it was felt the community would recognise that current law treated people in heterosexual de facto relationships unjustly, but was not ready to accept any changes to the laws affecting people in same-sex relationships. Was this an ethical decision or an example where the commission restricted its recommendations to what was politically acceptable? This was a matter of considerable discussion at the time.
Secondly, I believe that establishing a stand-alone body to propose law and policy changes implies an ethical obligation to ensure that recommendations are well researched, based on strong evidence and convincingly argued. Recommendations on complex issues of the kind I described at the beginning of this talk always involve value judgments. Not everyone will agree with our conclusions, but they must be able to understand why we have reached them.
A good law reform report will set out reform options which it has rejected and the reasons for doing so. Arguments for particular approaches should be dealt with carefully and respectfully, even if they are not accepted.
Law reform commissions in Australia have a good reputation for the quality of their work. Their reports are often used as accurate statements of the law by legal practitioners and legal academics. In this respect, the work of commissions is often closer to research in universities than to the policy work often done under acute time pressures in government departments.
Thirdly, I believe law reform commissions have an obligation to encourage and equip the community to become involved in debate about law and policy reform. In the 1970s this was conceived as an obligation to give the public an opportunity to comment on policy proposals. The usual law reform process was to publish an issues or option paper explaining the legal problem to be addressed and putting forward possible solutions. Submissions were invited in response to the paper and a final report was published making recommendations to government.
Today, consultation processes have become much more sophisticated. I believe we should now move away from the idea of law reform as a process which involves public consultation, to the idea of law reform as a process based on the ideal of deliberative democracy. In other words, commissions should, and to some extent have, moved away from a top-down process to a more egalitarian conception of the nature of the law reform process.
I have borrowed the term ‘deliberative democracy’ from political theory. I use it as an idea, rather than as a precisely defined term. In his book Deliberative Democracy in Australia John Uhr says ‘deliberative democracy has been defined to focus attention on the importance to effective democracy of fair and open community deliberation about the merits of competing political arguments’. The word ‘political’ is not intended to refer to party political arguments but to issues of public debate.
Uhr says the concept of deliberative democracy is a way of qualifying the idea that law and policy are, and should be, based solely on preferences of the majority, with few protections for the rights of the minorities. Deliberative democracy is interested in the ways in which minority groups, or those who normally take no part in discussion about policy making, could be assisted to participate more actively in public policy processes.
The theoretical discussion of deliberative democracy generally focuses on parliament and the executive arm of government. Obviously, applying it to the area of law reform requires some modification. My argument is that institutional law reform commissions can play an important role in supporting a civil society based on a notion of community discussion and debate. When a law reform commission makes recommendations, it is the executive government which will decide whether to introduce legislation implementing those recommendations, and the parliament which will decide whether to pass that law. But a law reform commission based on the notion of deliberative democracy will be committed to giving individuals who are affected by it an opportunity to take part in discussions about the way the law should be changed.
There are many practical reasons for seeking the views of those who will be affected by proposed legal changes. Public consultation can serve a number of purposes. It can contribute to wider public understanding about the need for change. By providing information about the present law it can build the capacity of groups in the community to campaign for change.
It can identify practical problems with the law or administrative processes which might not otherwise have been recognised. People whose lives have been affected by the law are likely to see it very differently from lawyers and judges. They will often be able to identify problems which are invisible to those who are more familiar with legal processes and the workings of courts. This came home to me starkly in our recent project on sexual offences law. Generally speaking, the criminal barristers we spoke to seemed to believe that the present law works well. By contrast, people who had given evidence in a sexual assault case regarded the experience as almost as traumatic as the original assault.
Consultation and debate can also assist in generating options for reform or help in identifying the advantages and disadvantages of options which are being considered. It may result in experimentation within particular bodies to address problems which have been identified, even before a law reform commission makes formal recommendations for change. For example, the Director of Public Prosecutions has already made some changes as the result of problems identified in the course of our sexual offences project.
However, my support for a deliberative approach to law reform is not based simply on the practical benefits of public consultation. In my view, encouraging public debate on complex public policy questions, such as eligibility for access to infertility treatment, has two other important purposes.
The first purpose is to give people whose views have typically been suppressed or ignored an opportunity to be treated with dignity and to have their concerns taken seriously. Law reform commissions should make special efforts to engage with groups which have historically faced barriers to participation in civil society. These may be barriers based on gender, disability, language and culture, as well as barriers created by historical injustice.
Let me use an example from our project on sexual offences laws. We know there is a high rate of sexual offences and family violence in Aboriginal communities. We also know that Aboriginal women are reluctant to report these offences to the police and even more reluctant to give evidence in court. The oppression and injustice experienced by Aboriginal people has contributed to these problems. For this reason, the commission has made considerable effort to engage Aboriginal people in our consultations and to learn about the reality of their experiences with police and courts. Our consultations told us Aboriginal people were not terribly interested in some of the technical questions we were considering, but were very keen to think about ways of reducing sexual assault and helping those who are the victims of it.
The second purpose of debate is to build public trust and confidence in policy making processes. Recent research shows there has been a decline in public trust in many Western societies. Robert Putnam’s book Disaffected Democracies – What’s Troubling the Trilateral Countries argues that there has been a decline in citizen’s confidence across the Western world. Surveys show that confidence in politicians and parliament has fallen and there is a weakening attachment to the major political parties. Cynicism about governmental institutions damages the fabric of civil society and contributes to a feeling of social and political powerlessness.
A law reform commission which consults widely with individuals and interest groups, and which makes special efforts to talk to people whose voices may otherwise be silenced, could contribute to the building of civil society. Institutional law reform bodies need to spend as much time thinking about how to engage the community and groups within it in informed debate, as about the content of the final recommendations which they make to government. The consultation process can prepare the way for necessary change.
The law reform approach which I favour addresses disengagement and public distrust by putting community discussion and debate at the centre of policy making. It is based on the idea that all groups in the community have the right to engage in debate and have their concerns taken seriously. A process based on the principle of deliberative democracy may be valuable, even if its main outcome is to expose areas of disagreement. Encouraging public debate on controversial legal and moral issues helps to build public trust in government and the institutions of democracy.
An Ethical Law Reform Process
I have argued that processes for public participation in the law reform process should reflect the ideal of deliberative democracy. In other words, the role of a standing law reform body is not simply to consult on its proposals for reform but to create the conditions for the public to participate in debate on public policy issues referred to the commission.
What ethical obligations flow from this view of a law reform commission’s role? I argue that there are four main requirements.
- Creating opportunities for meaningful participation.
- Fair processes.
- Avoiding raising expectations which cannot be met.
- Acknowledging disagreement and explaining reasons for dissent.
Creating Opportunities for Meaningful Participation
The first ethical obligation is to create the conditions in which there can be a fair and relatively equal exchange of views. Often the Commission is the main source of legal expertise on the matter which is being discussed. This creates an imbalance of power between the Commission and those who may lack information or have little experience in putting forward their views.
In discussions involving groups with very different perspectives there is also a danger that members of social groups which lack detailed knowledge, or are inexperienced in expressing their views, will be silenced by more powerful and experienced participants. Think for example of the difficulties of conducting a conversation about changes to sexual offences laws between women complainants who have gone through a sexual assault trial and lawyers who commonly represent men accused of sexual offences.
I believe commissions have an ethical obligation to assist groups which are lacking in power to participate effectively in the discussion. The typical law reform paper is a large and authoritative legal tome, which will probably be read by only a few people. This way of communicating is unlikely to help people in minority groups to express their concerns. Commissions need to provide information in more accessible ways to people who are likely to be affected by the proposed changes.
Recently, the Victorian Law Reform Commission has experimented with a format in which a small group is brought together to discuss a hypothetical, which is designed to expose a policy dilemma. Our assisted reproduction reference brought people together to discuss case studies which were intended to reveal inconsistencies in the current eligibility requirements for treatment. While this approach needs fine tuning it seems to me a good way of informing people about complex issues. After we held the forum a number of people said to me that they now understood the problems we were trying to address much more clearly. In some areas, for example our project on family violence, we have produced short papers written in non-technical language, which non-government organisations can use to obtain the views of their clients.
We also need to think of other ways of assisting groups which lack social power to become more involved in public policy making. For example, a law reform commission might decide to work with indigenous organisations to develop their understanding of and ability to participate in discussions on the law reform issues which are likely to affect them in the future.
The second ethical obligation is to ensure that the processes used themselves reflect the values of deliberative democracy. One problem is that it is ultimately the commission itself which will make recommendations to government, rather than groups which are called together to consider reform proposals. There is a danger that the commission will be seen as simply going through the motions of consultation. This problem can be addressed to some extent by making the purposes of consultation clear and by establishing clear ground rules under which the discussion will occur. Processes should require participants to agree to treat each other with respect, even when they have strong differences of opinion.
Commissions also need to think about the degree of formality which should apply to the discussion and whether it should occur in public, along the lines of a submission to a parliamentary committee, or in private meetings. My personal inclination is to use relatively informal processes. We sometimes hold discussions on the basis of an agreement that peoples’ individual views will not be reported. While this process may encourage people to express their views more frankly and may be less daunting to people who are not used to participating in public debate, it may also be seen as inconsistent with the democracy part of ‘deliberative democracy’. Perhaps the answer is to give people the opportunity to express their views in a number of different ways.
Not Raising False Expectations
The third ethical obligation is to avoid raising false expectations about the benefits of participating in the law reform process. We are frequently approached by people who have experienced various forms of injustice. We do not provide people with legal advice on particular cases and we need to make it clear that changes we propose may not assist them. In effect, we are asking them to participate altruistically to assist others. This needs to be made completely clear.
Sometimes individual stories are the most effective way of changing popular opinion. When journalists write up our proposals they often want us to produce a victim who personifies a particular legal problem, but I believe commissions need to be careful about responding to this demand. While personal stories can provide insight into defects in the law, in my view it is preferable to base public policy on the systemic effects of particular stories than on the problems of individuals. The consequences for individuals in being exposed to media scrutiny are unpredictable.
Finally, while the viewpoints of all those who participate in a deliberative process should be taken seriously, the commission’s goal should not be to achieve a compromise by papering over the cracks between opposing views. Treating people with dignity involves accepting that there will often be disagreement. A law reform commission has an obligation to identify differences of view and report them fairly. It also has an obligation to provide transparent reasons for reaching a particular conclusion. While some groups may not get the answers they want, they ought to at least be able to say that the process was fair and that their views were reported fairly.
A Case Study for Deliberative Democracy Approach – Assisted Reproduction and Adoption
Let me conclude with an example based on what may prove to be the commission’s most controversial reference: access to assisted reproduction technology and adoption. The Commission has published a consultation paper on the current law which exposes some serious anomalies. At present, a single woman or a woman in a lesbian relationship is eligible for infertility treatment if she has a medical condition which prevents her from conceiving. If the only reason she cannot conceive is that she does not want to have intercourse with a man, she is not entitled to seek artificial insemination in a licensed clinic, though she can inseminate herself with sperm donated by a friend. Ironically, this means that a single woman of 45 is probably eligible for treatment because her age makes her infertile, but a 35-year-old woman would not be eligible for treatment.
The commission has been asked to advise the government on whether eligibility requirements should be changed. It is clear there is widespread disagreement on this issue. Some in the community believe only married couples should be entitled to treatment. This position is not legally tenable because it conflicts with the federal sex discrimination legislation. However, there may be other ways in which access to treatment could be limited. Others in the community believe that assisted reproduction should be treated in the same way as other medical procedures. Anyone who needs medical treatment to conceive should be entitled to receive it. We have received over 200 written submissions, from people who feel very strongly about these issues.
It is the commission, a body of 9 distinguished people with expertise in law and social policy, who will have to decide what to recommend. Our terms of reference require us to have particular regard to the rights and best interests of children and to the provisions of international conventions to which Australia is a signatory.
The recommendations we ultimately make cannot be based on logic alone. We certainly cannot proceed by counting up the submissions and making recommendations based on the majority view. Our processes are intended to inform the community and groups within it about the social policy issues on which we will advise government, to encourage everyone with an interest to participate in the debate and to foster discussion between those with different views.
In the end, each law reform commissioner will have to apply their own ethical values in deciding what to recommend, though these values will inevitably be constrained by the debate which occurs before recommendations are made and the values which other commissioners inject into that debate.
Whatever our final report says, it is inevitable that our recommendations will be criticised. Unfortunately, individuals and sometimes political parties who do not agree with particular law reform recommendations attack the integrity of commissioners.
While it is important that our processes are respected and seen to be fair, the fact that not everyone will agree with our recommendations is irrelevant. Unlike politicians, we do not measure our success through approval ratings. The task of a law reform commission is not to convince everyone that our answers are correct, but to ensure that the law reform process reflects the ethical principles of independence, intellectual rigour and deliberative democracy. Such an approach will build public trust in the integrity and accountability of institutional law reform bodies like the Victorian Law Reform Commission.
Equal Opportunity Act 1995 (Vic)
Law Commissions Act 1965b (UK) s 3(1)
Law Reform Commission Act 1973 (Cth)
Privacy Act 1988 (Cth)
Victorian Law Reform Commission Act 2000 (Vic)
Commonwealth, Parliamentary Debates, House of Representatives, 11 December 1973 (Attorney-General Kep Enderby)
Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2000, 1321 (Attorney-General Rob Hulls)
Justice Astbury, cited in Thomas R Phillips, ‘Comment’ (1998) 61 Law and Contemporary Problems 127, 128
Robert D Putnam & Susan J Pharr (eds), Disaffected Democracies – What’s Troubling the Trilateral Countries (Princeton: Princeton University Press, 2000)
John Uhr, Deliberative Democracy in Australia: the Changing Place of Parliament (Melbourne: Cambridge University Press, 1998)
Ronald Sackville, ‘Law Reform – Limitations and Possibilities’ in A R Blackshield (ed), Legal Change: Essays in Honour of Julius Stone (Butterworths: Sydney, 1983), 223–240
Spencer Zifcak ‘From Administrative Reform to Democratic Reformation: Accountability in a Post–Managerial Era’, (Seminario Internacional A Reforma Gerencia do Estado, Brasilia, 17–18 November 1998)