Managing Law Reform: Applying a Best Practice Framework to Western Australia's Public Health Law Reform Efforts and Better Serving Australia's Indigenous Peoples

Abstract

This paper argues that a simple, memorable framework which codifies what Law Reform Commissions do well can significantly help those who are engaged in law reform activities, but who lack law reform expertise. Law reform has become increasingly complex both because ageing legislation needs frequent review and because new legislation seeks to address an increasing breadth of multifaceted issues. Since the late twentieth century, most Commonwealth countries have established Law Reform Commissions (LRCs) and charged them with leading reform efforts. Law reform, however, is also carried out by other actors who lack the experience and expertise of LRCs. The existing, often dated law reform literature discusses what LRCs do and what LRCs do well, but little attention has been devoted to analysing the nature of that expertise and distilling it in a way that can be used by others who lack such expertise. This paper develops a five-part framework (“the Framework”) for law reform largely based on LRCs’ work that will be useful to non-expert bodies that carry out law reform. It then tests that framework by applying it to a case study of the law reform efforts of the Western Australia’s Department of Health (“WADOH”) to reform Western Australia’s (“WA’s”) Public Health Act. This case study demonstrates that the Framework has the capacity to assist law reformers and help make their efforts more effective. This paper argues that WADOH’s reform efforts were only partially successful. An important element of reform which WADOH missed was paying attention to the ways proposed reforms addressed the health needs of Indigenous Peoples in WA. Had WADOH applied the Framework developed in this thesis, it would have understood the need to go beyond focusing on non-Indigenous interests and engage more Indigenous—as well as non-indigenous—participants in its law reform processes. It also seems likely that the limitations of WADOH’s reform proposals cannot be attributed solely to the shortcomings of the reform process; such limitations also stem from WADOH’s failure to utilise a contemporary view of public health that would have prompted it to focus more on Indigenous health issues.