Paul Galloway & Gemma Walsh
The Hon. Anthony North, Chair, Victorian Law Reform Commission
Natalie Lilford, Community Law Reform manager, Victorian Law Reform Commission
PAUL: When the Victorian Law Reform Commission was set up in 2000 it was given the power to initiate its own community law reform projects. These are distinct from the references coming from the Attorney-General, for one thing they are initiated from suggestions from the public.
GEMMA: Now public consultation is central to all the work the Commission does, and we will be discussing that later with the Commission chair, Anthony North. But community law reform projects are particularly concerned with how the law affects the daily lives of ordinary Victorians.
PAUL: Welcome to ‘Old Law, New Law’ a podcast by the Victorian Law Reform Commission. I’m Paul Galloway.
GEMMA: And I’m Gemma Walsh.
PAUL: We’ll be speaking today with Natalie Lilford, the manager of community law reform at the Commission. Natalie, thanks for coming.
NATALIE: Thank you for having me.
PAUL: To start, could you give us an overview of what we’ll be discussing? What is a community law reform project?
NATALIE: OK, well a community law reform project is a project that the Commission takes on which, as it says on the box, has to do with a law that affects the community. And as you mentioned Paul these are distinct from the major projects that we’re given by the Attorney-General. The power to take on these projects comes from the Victorian Law Reform Commission Act, so in that Act, as well as undertaking projects from the Attorney, we’re given a specific power to examine, report and make recommendations to the Attorney on anything that the Commission thinks raises relatively minor legal issues, but those that are of general community concern. So they’re different from Attorney references in that, I suppose, generally speaking they’re smaller more discrete areas of law, they might be quite well defined, that we then take on and treat much as we would a reference from the Attorney-General, so the same process that I’m sure we’ll chat about in a minute, of research, consultation, submissions and making recommendations.
PAUL: And an important aspect of that is that they emerge from suggestions from the wider community. Can anyone suggest a project?
NATALIE: Absolutely, and that’s the real beauty of this power that we have, which is quite a rare one amongst bodies of our type. Suggestions can come from individuals, but very often they come from community groups who have an interest in a particular area, and they also often come from community legal centres, because we find that community legal centres are at the forefront of issues that people are experiencing, but often they don’t have the time or resources to undertake larger reform projects like this, so they’re a rich source of eyes and ears in the community to identify projects. So yes, anyone can make a suggestion and people are experts in their day to day legal issues so we very much welcome and value suggestions from anybody.
GEMMA; So you said they can emerge from suggestions from the wider community, so what’s an example of something that somebody has suggested that became a project?
NATALIE: A really good example was the project before the one that we’ve just completed, that was a project on funeral and burial instructions. Briefly, what happened was a community member was at the centre of a family dispute, her mother-in-law had passed away, and half of the family wanted the mother to be buried in Australia, but the mother was from England, and the other half of the family wanted to fulfil what they believed to be the mother’s wishes, which was to have her cremated and her remains to be sent back to England. Essentially she was able to say that she and her family had identified an issue in the law, which was that although her mother-in-law had left clear instructions, the law didn’t require the family to follow those instructions, so that was the source of a deep conflict within the family, through their personal family conflict they were able to identify an issue, bring it to us and say “this doesn’t feel right to us”, this is something that could be the subject of more research, and looking into what the problems could be and whether there’s a solution.
GEMMA: Because we all die, so that’s not a stand alone case, that’s something that really affects lots of different people.
NATALIE: Yeah absolutely, it’s often the case with these types of projects that it’s something you haven’t necessarily turned your mind to before, not necessarily big ticket items on the front page of the newspaper every day, but they’re huge for individual community members. In this particular case it had caused a really long-standing rift for them. And as you say, getting the law of funerals and burials right is really important, because it does affect all of us, and it exemplifies the type of project we’re looking for. We know it has an impact on people day to day, but we also know that the reach is probably a lot broader than we might think at first glance.
GEMMA: Lots of people must come to us with all sorts of requests, how do you navigate that and decide which one you’re going to go for?
NATALIE: It’s a really good question, and certainly something I’m juggling a lot of the time in my position. We get lots of different suggestions in lots of different areas of law. When we have a suggestion, which will come to us either by an email, or phone call, we’ve got a form on our website so that people can make suggestions, we get them in many different formats – sometimes when we’re out doing a public consultation for a different reference we might have someone come and have a chat to us about a legal issue and make a suggestion, and the process from there is what we internally call scoping, so we might do research of what the law is, we can see if there’s any media coverage of things happening recently, we might reach out to contacts in the legal sector to see if this is a known problem, and it’s also important for us to know if someone’s working on it already, perhaps there’s a review happening, the government or a different independent body, we certainly don’t want to replicate that work, we want to be fulfilling a genuine community need by taking on a project that’s not being looked at. So there are those background processes that happen. Then myself and any other researchers in the team would write a research paper, and brief the chair of the Commission, Anthony North, and in conversation with him we then take that to the Commissioners. The Commissioners steer the recommendations of the Commission, they’re essentially a board, and I would pitch two, three, four projects that we’ve researched and think they might fit our criteria, might address a genuine community need, and then the Commissioners are the ones who ultimately decide which project will go ahead.
PAUL: If we just go through the list of some of the projects that the Commission has done over the years: Assistance Animals, Photographing Tenants Possessions for Advertising, one on Birth Registration and Birth Certificates, and most recently there was one on Neighbourhood Tree Disputes. One gets from that list a general flavour of what a community law project is. What would you say are the common factors that distinguish them?
NATALIE: Really impact, the day-to-day impact on people’s lives. We talk about wanting to look at issues that might have a likely public benefit if they’re reformed, or if they’re researched. You can look at it one of two ways, one is something that might benefit a large amount of people, so for example the neighbourhood tree dispute project is a good example of that, perhaps you might say that a tree dispute with a neighbour is not a huge issue in somebody’s life, maybe not a life-defining thing, but it can have a big impact and really it impacts a lot of people across Victoria. So we would say that that’s a really valuable project for that reason. But on the other side there are projects in that list that have a really deep effect on people’s lives, but perhaps a much smaller group of people. Assistance animals would be a project that falls into that category.
PAUL: Let’s look at the process now. A project is chosen, how are the terms of reference set?
NATALIE: So the Commission sets its own terms of reference for these projects, that defines what we’re able to look at and what the scope of the project is. It’s always the case when we’re doing a law reform project like this, with really deep and good quality research, that they can be bigger and more complicated than you think they are, but in defining the initial terms of reference what we’re trying to do is emphasise the really important areas that we’ve heard from the community need to be looked at, and perhaps cutting out areas that we know will make the project too large or too complicated.
PAUL: And a team is chosen to write and research the report, where do they come from?
NATALIE: Well actually we’re lucky that the community law reform team are permanent members of staff at the Commission, so we’re able to move from project to project, and develop real expertise in speaking to the community, and developing those links, and figuring out ways to engage and to elicit these types of problems and to continue the conversation with the community, to make sure that the Commission has a good idea of what’s happening and what the up and coming problems are. That also means that in between projects me and my team can research areas in law and really keep on the front foot.
PAUL: And with the terms of reference in hand, the team gets to work.
NATALIE: Yes, so the team would set about the initial research and essentially that can be very broad ranging. We may research what happens in other Australian jurisdictions on the topic, we might look to what happens overseas, or what happens in comparable areas of law. And throughout this process we have the Commissioners, who are senior members of the legal world in different areas, who are available to us as a resource. Towards the end of the project as we are looking to set down the recommendations, we really work closely with the Commissioners to determine what those are, but during the research and writing of the report the team is fairly independent.
GEMMA: So once you’ve done that initial research, what’s the first publication that comes out to engage that community more?
NATALIE: What we do then is we take all of our research and understanding of the law and the extent of the problem and we publish a consultation paper. And the purpose of that is not only to explain to the community the area that we’re researching, but it’s also to get their views on specific questions. So for example it might be unclear how the law operates in a particular area, so for funeral and burial instructions we could say ‘Well we know what the law is, but what we want to know is what happens to you, what has been your experience. The consultation paper is a way for us to ask structured questions of the community, and get back lots of feedback and experience, to help us in formulating where we want to go with it and what kind of reform is necessary.
GEMMA: It’s really a key part of the research process.
NATALIE: Yeah it really is. And the paper that is published actually ends up being a fantastic resource on the way that the law is. A lot of the time what the community are concerned about is a lack of information and an inability sometimes to understand what the law is that governs them because sometimes it’s in many different pieces of statute and it does take a lawyer to untangle it. So even if the recommendations that we make aren’t adopted, what you end up with is this really clear well written, well researched, authoritative statement of what the law is. And for a project like neighbourhood tree disputes for example, that was one of the main concerns. People were saying ‘We don’t know what our rights are, we don’t know how to untangle these disputes with our neighbours, and if we just had an understanding of what the law is we could really do it ourselves.” And so in that project the consultation paper was a weighty tome, but it’s really useful in and of itself, as a document for the community. So I think that’s a corollary purpose that’s really valuable in the process.
GEMMA: And not just individuals in the community, but particularly for neighbourhood tree disputes I imagine, people working for councils, and also the arborists, all sorts of organisations that are dealing with that area of law.
NATALIE: Yeah and we found that that area of law and that area of life was quite fragmented, people are having an argument with their neighbour and then they speak to their arborist who’s an absolute expert in trees but not necessarily in dispute resolution, and then you’ve got mediators who are brilliant mediators but don’t necessarily know about the health of the trees, there’s a lot of different perspectives and being able to bring them into one document I hope helps people in that sector understand not just the regulation but the experience of others too.
PAUL: So there are submissions that come in via the website from the public, and then there are submissions that you actually go out and solicit, I assume, go out to interested parties and ask for their submission?
NATALIE: That’s right. So once we’ve published the consultation paper then we have what’s called a consultation period, and during that we also invite people to make written submissions and that can take lots of forms. Someone could just write a letter and say ‘Look, this has been my experience with a tree dispute for example, this is what happened’ or they might choose to go through the questions in the consultation paper that we published and give us a blow by blow answer, and all of those things are valuable. We get submissions in all shapes and sizes. Sometimes the submissions just land in the inbox because there are people who are really closely following a particular area of law. Let’s say the photographing tenants’ possessions for [advertising] purposes project. We had real estate agents and the tenants’ union and other interested parties who were following what we did, so of course they presented us with a submission. Sometimes you do have to go out and speak to community groups and educate them a little bit about what the project is, but also what the process is and encourage them to make a submission to make sure that their voice is also heard.
PAUL: I’m getting the impression of this whole system as being one set of community consultations. The project is instigated through some sort of community interest or submission, then you research and you’re asking the community and interested parties up to the consultation paper, then after the consultation paper you’re doing further community research, so it’s community research all the way through to the report, is that right?
NATALIE: That’s absolutely right. And I think the way that you describe it really recognises that, particularly the community law reform arm of the Commission, who do see the community as experts in their own lives. It’s all very well to be excellent researchers and qualified lawyers, as all the staff are here, and we’re interested in the community issues, but we don’t live the lives of all these people with different situations, so it’s really important not only to go out and ask what people’s experiences are but to test ideas as well, because something might look like it will work well on paper, and this is true for all kinds of law reform, but it may not be the case in the lived experience of somebody. So yes, it is important to continue to test throughout the process to make sure that what we do end up recommending is worthwhile.
PAUL: Before we leave the subject of community involvement, let’s go to a discussion I had with Commission chair Anthony North about the role of community consultations in all the Commission’s projects. Thank you Tony for speaking with us. Now I said the other day to you that before I started at the Commission I held a vague idea that law reform involved lawyers talking to other lawyers, and since working here for a few months I’ve been disabused of that idea. There’s a great deal of community consultation involved in law reform, isn’t there?
ANTHONY NORTH: Thank you Paul, yes, there certainly is. You’ve hit upon what is really one of the central value-adds that the Law Reform Commission achieves. We get references from the Attorney-General, but also we can generate internally references ourselves, and that is a central function of the Law Reform Commission, to go out and talk to people who have views about the issues that we’re looking at. I say this is the most important part of the process because it brings to the issue the people who are immediately affected. It depends on the subject who we consult with, but to give you some sort of idea, where we’re dealing with a matter of criminal law or criminal law processes we would talk to judges of course, we would talk to people like the Director of Public Prosecutions, but we would also talk to groups who represent people in the system, be they prisoners or be they victims of crime, victims of violence, victims of family violence. And of course by doing that we get views which you can’t get out of books and you can’t get out of written submissions. Often it is talking directly to the people involved that gives you a real idea about what the issues are. And that is an invaluable input into the process of law reform. True it is that politicians listen to their constituents, but politicians don’t ultimately have to come out with the recommendation which is independent of government, and that’s what our Commisison does, uses this interaction with the community to come to conclusions which are independent of government but which take account of the real-life experience of the people who are affected by the law. That’s the key to community consultation. It’s hearing from our community what they experience in the law and how they think it could be improved.
PAUL: That was the Honourable Anthony North QC, chair of the Victorian Law Reform Commission, giving us in broad strokes the role of community consultation in the Commission’s inquiries. Now we’re back with Natalie Lilford, manager of community law reform at the Commission. Now Natalie, after all these stages of community consultation are complete, a report. I’m interested to know how you come to a set of recommendations, how you turn this myriad of different submissions, opinions, I mean how do you sort them out? Is that the hardest part of the process?
NATALIE: It is the hardest part, but I suppose it really is also the most important part because that’s when you’ve got people who understand the law as it’s been explained and are feeding back their experience, and that’s the kind of informed conversation that we need to be taking into account. But we read every single word that everybody submits, and we take it all really seriously, so the nuts and bolts of it, how are they sort of weighed and sorted between … we make gigantic spreadsheets, and try to separate out all the ideas and find different ways to cut through the different information. I suppose one thing to mention is, we might hear one really serious impact of a particular law on one person, and we only hear it from that one person, we’ll give that a great deal of weight because of the impact that it’s had even though we’re only hearing one voice. I think we’re really flexible in that sense and able to adjust, we don’t have KPIs or targets or a certain amount of people or a percentage of people needing to say a certain thing. You can’t please everybody, obviously, so for example in trees we heard from arborists who have a particular really strong passion for protecting the health of trees, and maintaining the urban forest and making sure that people are not only planting trees but retaining trees in their garden. At the same time we heard from councils who want to make sure that people are not at risk and people aren’t getting hurt and people don’t perceive places as being unsafe, and it’s pretty hard to reconcile those two ideas. One is more trees, and one sometimes results in fewer trees. It’s a very fine balancing act with lots of different pieces of the puzzle and I suppose that’s where we see our real expertise as being able to draw a reasonable line through the middle of some really divergent community perspectives and come up with something that is workable and will have a real benefit.
GEMMA: And as legal professionals too, you can look at all those issues and see how it would work for a community in the law.
NATALIE: Hopefully so, but as I said before, without being on the ground in a particular area you don’t necessarily know, so it’s humbling to recognise that the community are the experts even though we can see the law and see what on paper looks like a really good law, sometime you need to take a step back and recognise that you’re not the expert. So I suppose an example of that is the birth registration project, which broadly was about making sure that people have access to birth registration and are able to get a birth certificate, the reason for that being that there are a lot of consequences down the track if you don’t have a birth certificate. It can really hinder you in your adult life in being able to access Medicare, education, insurance, lots of things that can make your life easier. And I think if you look at the law on paper, it looks like a really good quality law, that works well, but when we spoke to people and when we heard from Births, Deaths and Marriages, for example, we were able to understand that there were real financial barriers and procedural barriers for people to even go through the process of registering a birth. So it’s a bit of a reality check sometimes.
PAUL: So you have a report that emerges and it has recommendations, who makes the final decision on recommendations?
NATALIE: All the Law Reform Commission’s reports are the work of the Commissioners, so at the end of the day it’s for the Commissioners to sign off on the recommendations. Certainly the team by that stage have become the subject matter experts, so it’s for us to brief the Commissioners and make sure they’re fully across the ins and outs, and what’s been said in the submissions and what the community is saying to us. The recommendations are made by the Commissioners and they have the final say.
PAUL: The report is eventually produced, published, and passed on to the Attorney-General. What is the Attorney-General bound to do with that report – anything?
NATALIE: So the Attorney-General receives the report and we would provide a briefing, briefing papers, whatever the office requires, and then usually the Attorney will table our community law reform reports in Parliament, which is really fantastic, because there is no requirement for the Attorney to table them, that’s required for the references that come from the Attorney, and that reflects I suppose the independence of our office, and also the transparency of the process, but that’s also usually adhered to with the community law reform projects which is fantastic. The Commission, we don’t have a say on what happens to those recommendations once we’ve handed over the report, we’re not an advocacy body and obviously we hope that the government takes on our reports and thinks that they have fantastically well-researched and thought through recommendations, but certainly we don’t have a role in implementation. That’s up to the government to decide what they want to do with the recommendations that we’ve made, and then up to Parliament to legislate changes.
GEMMA: But it is really good when they’re tabled because that means that they’re there, they’re on the record, and future parliaments can refer to them when these issues arise again.
NATALIE: Absolutely, and as we said before they’re just a good quality insight into what community opinion is, or ideas are, on a particular topic and what the experience is, so even if it’s not implemented in whole, if it’s just implemented in part, or if it’s not implemented for a long time, and down the track someone picks it up, we hope that it’s been drafted in such a way and researched in such a way that it’s still a useful tool for the community.
PAUL: So the question is, what has been the impact of these projects on the law? What changes have been made?
NATALIE: Look there has been a number of changes that have happened after we’ve done these projects. Sometimes they’ve happened in the context of a broader review to government, who’ve been able to go back and look at what we’ve done in the space, some of those community voices, so an example of that would be birth registration and birth certificates, after our project that was really looking at the impact on the Aboriginal community. Births Deaths and Marriages in implementing their new system were able to see what the community had said in our project and redesigning the birth registration system. Also with assistance animals, the kind of discrete project that we did about the regulation of assistance animals and the law protecting people who use assistance animals, and then later on when Victoria did a major review of its equal opportunity laws, again the recommendations of the Commission in that community law reform project were taken up to be fed into that review. So sometimes it’s a roundabout thing, sometimes they’re not implemented directly by the government, they’re able to feed into other projects that are happening and we definitely consider that a success too.
PAUL: Thank you Natalie for explaining community law reform. I would also like to thank the Honourable Anthony North QC, Chair of the Victorian Law Reform Commission. That’s all the time we have on this edition of ‘Old Law, New Law’, but if you want to know more about community law reform projects, or indeed any of the Commission’s work, head to our website www.lawreform.vic.gov.au and you can also follow us on social media, Facebook and Twitter.
GEMMA: And that’s also where you go if you have a suggestion for a community law reform project. Follow the links to the criteria and fill out the online form. And who knows your suggestion may lead to improvement in the law.
PAUL: Thank you for listening.