A leader in Australian law reform

For many lawyers, the thought of being able to infuence Australian law and policy is the reason they went to law school. Few, however, have made such a marked impact on Australian jurisprudence and policy-making as the Honourable Marcia Neave AO.

Formerly of the Supreme Court of Victoria, Justice Neave (LLB(Hons) 1966) joins MLS as the Judge in Residence for the second semester of 2016. The Judge in Residence initiative gives MLS students the opportunity to engage with some of Australia’s most influential judicial leaders and obtain insights into the working of the courts and the role of Australian judges. Her Honour comes into this role having most recently served as the Commissioner of the Victorian Royal Commission into Family Violence.

Heading the Commission was in many ways the culmination of the remarkable career of one of Australia’s top legal reformers.

Her Honour gained experience in law reform early in her career, moving from a junior academic position at MLS to the NSW Law Reform Commission in the early 1980s.

I was interested in law reform and looking for things to stretch and challenge me and I was seconded from the University of Melbourne to the NSW Law Reform Commission, I went there as their research director.

Her Honour eventually became a part-time commissioner. During this time, Justice Neave worked on crafting legislation that allowed unmarried couples to resolve property disputes, having previously completed academic work on the relevant principles arising in equity.

Justice Neave says this work was “very controversial at the time”.

There were terrible injustices. Couples had split and often the property was in the man’s name and the woman would be left with nothing. Sometimes they managed to get something under equity, but often not. The equitable principles were fairly restrictive.

The NSW Law Reform Commission made its recommendations, including empowering courts
to divide the property of de facto couples having regard to their contributions to the relationship. These recommendations were accepted and were later followed and expanded by other states to cover other relationships as well.

“That was a great project,” Justice Neave says.

After this experience, opportunities in law reform began opening up. On returning to Melbourne, her Honour was asked to head an inquiry into prostitution laws for the Victorian Government.

“In the course of doing that we interviewed a lot of sex workers and I visited a number of brothels.

“Again, I was lucky as the Victorian Government accepted the recommendations. Ultimately what was recommended became law, which was decriminalising prostitution and controlling locations of brothels.”

Another period in academia followed, this time in several of Australia’s top law schools. Then, the opportunity of a lifetime arose when then Attorney- General Rob Hulls decided to re-establish the Victorian Law Reform Commission in 2000. Justice Neave applied and was successful in becoming its full-time Commissioner, a position she held until being appointed to the Supreme Court in 2006.

The three references in which her Honour was most actively involved were defences to homicide, sexual offences, and workplace privacy and privacy in public spaces. She was also involved in the reference on family violence, which was overseen by another full-time Commissioner. The recommendations arising from each of these were substantially or completely implemented by the Victorian Parliament, a rare achievement for a law reform commission.

“It was a terrifc time. Rob Hulls was a reforming Attorney-General and was interested in bringing about change,” she says.

I had a very lucky experience – you can work on law reform for many years without any of your legal recommendations being passed.

This opportunity also allowed Justice Neave to pursue her own interests.

“The Law Reform Commission operates on references from the government, although it is an independent body, but Rob Hulls was very open to suggestions about what things needed to be looked at. And I had a list.”

For current law students, Justice Neave is optimistic about the opportunities to become involved in law reform.

“Students need to think broadly about the opportunities that law gives. There are a lot of opportunities for policy work beyond strict law reform – public policy work in governmental departments and other places.

“Students have the chance to work for private consulting bodies who do law reform, or to work in a policy section of a government department, or sometimes corporate bodies are invited to make submissions [to the Law Reform Commission].”

Opportunities are also available for graduate lawyers.

“For example, some of the firms who take young graduates get them working on pro bono matters, and some of those pro bono matters have law reform elements. Also, things like working at Community Legal Centres, which often make submissions to government.”

Her Honour sees the legal education offered by MLS as giving students a tremendous grounding in the skills and knowledge required in law reform.

I know that in some of the courses offered students are asked to think about what’s wrong with the law or how to improve the law, or they’re given empirical data about how the law is working.

Justice Neave’s influence in Australian law reform is likely to last for some time yet. Her experience also demonstrates the legal paths that are available to those interested in social justice.

“Law is a human instrument and is inevitably awed, and sometimes those flaws create injustice. What I’m interested in is how to rectify injustice, particularly for people who are powerless.

“I’m interested in what law and other social mechanisms can do to give those people a chance to have a fairer life.”