ALRAC 2016

‘Law Reform on the Smell of an Oily Rag’: The Challenge ofManaging Law Reform in Smaller Jurisdictions’

Terese Henning (Tasmania Law Reform Institute) and David Plater (South Australian Law Reform Institute)

The Institutes

The Tasmania Law Reform Institute (TLRI) was established in 2001 by agreement between the State Government, the University and the Law Society. It was the inspiration of Professor Donald Chalmers, who was Tasmania’s Law Reform Commissioner at the time. It was his vision that the traditional statute based model for law reform bodies should be replaced by a model based on agreement. This model utilizes that of the Alberta Law Reform Institute, which is the longest continuously running law reform body in Canada. The first Director of the Institute was Emeritus Professor Kate Warner who is now the Governor of Tasmania.

The TLRI has been described as Tasmania’s ‘most interesting experiment with new law reform machinery’.[1]It has been copied in both the Australian Capital Territory and South Australia.

The functions of the Institute include the review of laws with a view to their modernisation, the elimination of defects in the law, simplification and consolidation of laws, repeal of laws that are obsolete or unnecessary and the achievement of uniformity between Tasmanian and laws of other States and the Commonwealth.

The Institute’s reports and research papers are published on its website and presented to the government.

In preparing its reports the Institute undertakes widespread consultation with key stakeholders and with the community at large. Submissions it receives as a result of this consultation are incorporated into its Final Reports and inform the recommendations made in those reports.

The functions and operations of the Institute are undertaken by the Director, with assistance from the TLRI Board members, research assistants and Law Faculty staff and students.

Board members comprise representatives of the judiciary, the Bar Association, the Law Society, the Attorney-General, the community, the University Council and two co-opted members.

Similarly, the South Australian Law Reform Institute (‘SALRI’) was established in December 2010 under an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. It is based at the Adelaide Law School. The SALRI’s function is to conduct reviews or research on areas of law and legal policy specified by the Advisory Board, often following a request to inquire into a certain area of law by the Attorney General.Like the TLRI, when conducting reviews and research the SALRI focuses on:

•the modernisation of the law;

•the elimination of defects in the law; the consolidation of any laws;

•the repeal of laws that are obsolete or unnecessary; and uniformity between laws of other States and the Commonwealth.

The SALRI also provides reports to the Attorney-General or other authorities on the outcomes of reviews and/or research and makes recommendations based on those outcomes.

It’s probably not boastful to say that in its 15 years of operation, notwithstanding severe resource limitations, the TLRI has worked consistently to deliver quality research and evidence-based recommendations for law reform that have had an impact both at a state and national level. Its work has been wide ranging and taken many forms. It has:

•Published 52 Issues Papers

•Produced 44 articles in refereed journals

•Published three books

•Authored 17 chapters

•Delivered an average of two key note addresses per annum

•Delivered 24 conference papers

• Prepared eight submissions to Committees of Inquiry

•Delivered an average of six presentations per annum to community groups

•Received over 1200 representations/submissions from the the community

•Provided over 30 undergraduate students with the opportunity to undertake supervised research with the Institute

•Supervised three PhD candidates and one Masters candidate with a further three PhD candidates in progress

•Secured additional funding from direct contracts with the Government and the Tas Law Society in addition to its recurrent funding

•Contributed regularly to the ALRC Journal, Reform, and the Law Society Newsletter

•Contributed regularly to CLE programs of the Law Society

•Featured regularly in the media – radio and television commentary and op eds in newspapers

Projects have covered a broad range of areas and are by no means limited to lawyers’ law or black letter law. Controversial projects have included physical punishment of children, non- therapeutic male circumcision, same sex adoption and defences for child sex offences. Large projects have also been undertaken, including projects on a Charter of Rights for Tasmania and Sentencing. Completed law reform topics are:

•A Charter of Rights for Tasmania

•Adoption by same sex couples


•Consolidation of arrest laws in Tasmania

•Criminal liability of drivers who fall asleep causing motor vehicle crashes resulting in death or other serious injury

•Criminal liability of organisations

•Custody, arrest and police bail

•Intoxication and criminal liability

•Non-Therapeutic male circumcision

•Offending while on bail

•Physical punishment of children

•Problem trees and hedges

•Protecting the anonymity of victims of sexual crimes

•Racial vilification and racially motivated offences

•Report on the Commissions of Enquiry Act 1995



•Sexual offences against young people

•Tendency and coincidence evidence and Hoch’s case

•The establishment of a drug court pilot in Tasmania

•The law of easements in Tasmania

•Vendor disclosure

•Warnings in sexual offences cases relating to delay in complaint

And our present and projected references continue in the same vein:

•Communication assistance in the criminal justice process for people with complex communication needs;

•Consensual assault;

•Recidivist Drink-Driving;

•Guardianship Act Review;

With anticipated references including:

•Tasmanian Constitution Review;

•Property Law/Planning Law Zoning/ Stratum Title Law;

•The defence of insanity;

•Fitness to plead.

Likewise the SALRI has completed work on:

•Review of Sureties' Guarantees for Letters of Administration;

•Whether there should be a will register in South Australia;

•Modernisation of South Australian evidence law to deal with new technologies;

•Review of the form of witness oath and affirmation in South Australia;

•An investigation of the potential for a statutory cause of action for invasion of personal privacy in South Australia

•LGBTIQ: Review of Legislative or Regulatory Discrimination;

•Laws Regulating Sexual Reassignment and Registration of Sex and Gender.

The SALRI work in progress includes:

•Review of the procedures for administration of small deceased estates and minor succession law disputes in South Australia;

•Intestacy: Cutting the Cake: South Australian Rules of Intestacy;

•Effect of exceptions under the Equal Opportunity Act 1984 (SA);


•Relationship Register;

•Current Provocation law (Equality and Gender Implications)

Future projects are:

•Family Inheritance Provision;

•Entitlement and Disposal of Human Remains and Resolution of Disputes;

•Operation of common law forfeiture rule

•Police Powers.

This body of work suggests that, despite our shoe string resources, the TLRI and SALRI are not a down at heel, broken down, out dated or antiquated models, but work done is not the only indicator of success.

One measure of law reform agencies’ success is whether or not their recommendations are implemented. The TLRI has had some success in this regard:

•Recommendations in relation to same sex adoption and vendor disclosure have been adopted.

  • Some of the 96 recommendations in the Sentencing Final Report were adopted, including the establishment of the Sentencing Advisory Council in 2010.
  • Recommendations in relation to warnings in relation to delayed complaint in sexual offence cases were largely implemented in the 2010 amendments to the Evidence Act 2001 (Tas). In fact, the TLRI report informed the national debate on and review of this area of the law and the Tasmanian recommendations were adopted nationally in the Uniform Evidence Acts of NSW, Victoria, the ACT, Norfolk Island and the Northern Territory.
  • Recommendations in relation to the defence of mistake as to age in child sex offences were partially implemented by amendments to the Criminal Code in October 2013.
  • A drug court pilot was established in the Magistrates Court, in 2007, which led to the implementation of Tasmania’s Court Mandated Drug Diversion Court.
  • Recommendations in relation to the civil liability of employees dealt with in a Research Paper by the TLRI have been enacted in the Civil Liability Act 2002 (Tas) which removes the right of an employer to seek indemnity from an employee where the employer is vicariously liable for the employee’s action unless the employee is guilty of serious or willful misconduct.
  • The TLRI recommendations in relation to s 170 of the Criminal Code will be implemented by the Crimes (Miscellaneous Amendments)Bill 2016 (Tas).

The TLRI and SALRI do not confine themselves to measuring their success and effectiveness by implementation rates. As law reform agencies situated at universities, the stimulation of informed debate on important or contentious issues is also an important goal. For example, while the TLRI’s recommendations for a Charter of Rights for Tasmania have not been adopted, the TLRI found widespread support for a Charter in Tasmania and in fact received more submissions from members of the public on this reference than any other reference it has conducted, indicating that there was widespread community interest in this matter and, as it turned out widespread community support for the enactment of human rights protection in Tasmania. The Institute’s recommendations have provided a model that a future government may be minded to implement. In addition since this time this project has informed the work of the Institute itself, so that it brings a human rights lens to bear on all the work it undertakes and promulgates that approach in community engagement.

Of similar significance is the TLRI’s project on Same Sex Marriage whose aim was not to make recommendations for reform but to clarify the legal arguments about the issue to improve the quality of the debate when the matter was reconsidered by the Legislative Council in October 2013.

So theTLRI refuses to be confined to black letter law projects and engages, when appropriate, with matters of social policy. For example, in addition to the matters just mentioned, the Institute recently published a report for the Government on how the serious problem of Bullying, including cyber-bullying might be combatted. It is also undertaking research on whether a problem solving court model should be implemented in Tasmania in relation to recidivist drink-drivers and whether communication assistants should be available for those involved in the CJP with complex communication needs.

Benefits flow to our Law Faculties in a number of ways from our work. Our projects can help instil a law reform ethos into the curriculum by providing examples of current and past law reform proposals that can be used in discussion throughout the curriculum. Students benefit too by gaining valuable experience. Working opportunity to develop research skills, and skills associated with oral presentations, media interviews and community consultation. It also has gives students’ work a potential practical value, which gives added meaning and impetus to their work.

Projects can also stimulate ideas for research grants and publications. This has been the case this year for the TLRI with research grants from the government into the establishment of a specialist court to deal with recidivist drink driving and to examine the measure that can be implemented to assist children and witnesses with cognitive impairments in testifying at trial.

Additionally via the consultations we undertake our work also enables members of the community to contribute to law reform and law reform debates. We take submissions we receive into account in writing reports and making recommendations for reform; we also report the submissions that are made to us, so that they become part of the community understanding of the different issues involved in our projects.

Functioning on a shoestring

One of the strengths of the University-based law reform model is the access it provides to resources, both library resources and personnel. Members of the Law Faculty supervise projects and students are able to contribute to the Institute’s work.

We have used supervised research projects undertaken by students qualifying for honours to kick-start work on many projects including bullying, same sex marriage, easements, rights of appeal and the scope of the defence of consent to assault.

The work of a post-graduate student funded by an Australian Research Council Linkage Grant was incorporated into the TLRI’s Final Report on Sentencing.

AUniversity of Tasmania post-graduate student used the Children’s Commissioner’s circumcision proposal as the topic for his LLM (Master of Laws) by research. He was then employed by the TLRI to draft its Final Report on this topic.

Board members have also written and supervised projects.


At the same time, the limits of law reform and the challenges to an effective law reform agency in the twenty first century need to be acknowledged. It can be argued that a small law reform agency such as the TLRI, without permanent full-time research staff and limited capacity to undertake large complex projects, is mere cosmetic tokenism; that it is merely a body which can provide the government with breathing space to reduce the political heat about an issue or a convenient receptacle for a controversial matter which the government wishes to pigeon hole.

Its lack of resources to respond in a timely manner mean that it can be sidelined or by-passed in favour of a government’s in-house policy unit, which can produce a prompt and politically palatable solution to a problem.

We also face challenges to our work fromthe decline in the influence of experts and traditional forms of expert workwhose method and style is that of rationalist legal discourse.

To remain relevant, engage the public and to retain the ear of government is not an easy task. The challenge for us is to continue to produce high quality work that is not merely valuable to experts in the field (such as students and academics), but also engages the public in informed debate on important legal and social issues and provides independent advice to government, which is, at least, then carefully considered.


One of the major problems for the TLRI has been that our base funding has not increased since 2001 when the Institute we first established. So while we are currently engaged in negotiations to increase that level of funding we are also aware and have always been aware that funding is always tricky, so we have to develop innovative and varied approaches to gain funding for projects.

To meet the parking lot/tokenism challenge the TLRI is also exploring ways to engage in bigger, more complex projects that will take our research effort to the next level.

Accordingly, for 2016 and beyond, new funding sources are being sought which will also involve the Institute in new and innovative research models and projects. Specifically the Institute is exploring the following models and projects:

  • A Memorandum of Understanding (MoU) between our Universities, Faculties and Courts to advance research projects to be undertaken for the benefit of the courts and to advance law reform. Projects undertaken under the MoUmay involve academics, undergraduate and post-graduate students. This model is based on one devised for the Law Litigation Unit at the University of Adelaide.
  • Cross-jurisdictional research with sister agencies to investigate the operation of innovative justice projects in which we have a common interest beginning with pilot projects that then provide a basis for larger, longer term projects and for example applications for ARC funding.
  • Cross discipline research with other Institutes within the University (at the University of Tasmania this research is being explored jointly by the TLRI and Tasmanian Institute of Law Enforcement Studies (over 10-12 years))suggested by the State Government to evaluate the operation of reforms that have been implemented as a result if our recommendations or that are relevant or relate to our recommendations.
  • Scholarships or stipends for PhD and Masters students may attach to this research (both dot points one and two) from within the University or from Government.
  • The development of internships involving professional secondments, perhaps initially by funding a pilot project for one intern. For the TLRI there are three new projects that provide opportunities for interns – the Constitutional Law project, the Guardianship Act project and the Strata Titles/Planning Law project.
  • Support for a TLRI Year 15 Celebration Fundraiser event to garner support from the profession for scholarship funding to support our work.
  • In the past we have applied also, of course, successfully for additional funding for specific projects from the Government (different government sources) and from the Law Society.