A large part of the impetus to set up a full-time body concerned with law reform came from the example of Great Britain. A campaign for law reform led by Lord Gardiner was adopted as a policy of the Labour Party in the 1964 British general elections, and legislation creating separate Law Commissions for England and Scotland was presented to Parliament in January 1965. By July 1965, within a month of its official establishment, the English Law Commission had presented its first program of subjects which it recommended - for examination.⁷ No doubt spurred by the British example, the then Leader of the Opposition in New South Wales, Mr Askin, included a proposal for “a full-time law reform commission consisting of a barrister or retired judge, a solicitor and an academic lawyer” in his policy speech for the May 1965 State elections.⁸ Following the victory of the Liberal-Country Party coalition, the Government announced the establishment of the Commission “as an important step towards ensuring the preservation of basic human rights and freedoms”.⁹ The new Attorney General, Mr Kenneth McCaw, was particularly supportive of the proposed Commission, whose establishment he regarded as “long overdue”.¹⁰ So urgent did he consider the task of law reform that he sought and obtained the approval of Cabinet for the establishment of the Commission by administrative action, rather than wait for legislation to be prepared. However, he believed that the Commission needed to be given a statutory foundation to ensure its independence and permanence so that it could “go on working in the public interest to keep the laws as much as possible in conformity with the social conscience of the community”.¹¹

The Commission began work in January 1966 with its offices located in Macquarie Street opposite Parliament House. The first Chairman was Justice J K Manning of the Supreme Court, while Mr R D Conacher (a barrister) was Deputy Chairman. Professor Benjafield (on secondment from the University of Sydney for two years) and Mr H M Scott (a recently retired Deputy Crown Solicitor) were appointed full-time Commissioners. It was anticipated that Justice Manning would occasionally sit on the bench, although the other Commissioners were expected to work exclusively on Commission business and were given an additional emolument in exchange for surrendering their rights to practice.¹² A former Prothonotary of the Supreme Court, Mr R E Walker, was appointed Executive Member and was in charge of research and administration.

[For more material on the inauguration of the Commission, please follow this link.]

A bill to constitute the Commission as a statutory authority was introduced into the Legislative Assembly by Mr McCaw in December 1966 but lapsed when it failed to reach the Upper House during the parliamentary session. Re-introducing the bill in August 1967, the Attorney General commented on its objects in the following terms:

To give the Commission permanence is one of the reasons for the measure. The bill will give it authority and prestige and usefulness, and help it to achieve and maintain the respect of the community - not merely the community of today but also the community of tomorrow - which it has served in the realm of law reform. The bill will set up, free of ministerial domination, an autonomous law reform commission that will act only on reference by the Minister. Reports will be made to the Minister and the Minister will be held responsible on the floor of Parliament for their tabling or the failure to table them.¹³

The Law Reform Commission Act 1967 received the Royal Assent on 25 September 1967. It was modelled on the Law Commissions Act 1965 (UK) which had established the English and Scottish Law Commissions. Unlike the British model, though, the Chairman was required to be an active or retired judge of the Supreme Court, while the positions of Commissioners and Executive Member were constituted under terms usual for holders of statutory offices in New South Wales. The incumbent occupiers of these positions were specifically re-appointed by a schedule to the Act. The Commission was given the normal powers of a Royal Commission (with the exception of the power to compel a witness to answer self-incriminating questions) and its inquiries were protected from actions for defamation. The powers and functions of the Commission could be delegated to any commissioner; there was no requirement that all members participate in an inquiry. The functions of the Commission under s10(1) were similar in effect, though not in form, to those of the British Law Commissions, although the scope of its work is potentially wider under para (b) which enables it to consider proposals in any area for which the New South Wales Parliament is competent to legislate. In exercising these functions, however, the Commission is dependent upon a reference from the responsible minister, the Attorney General. The Commission may act only upon receiving such references and may report only in relation to them. In this respect, its legislation gives the Commission a close relationship with the Attorney General, while guaranteeing its independence in the conduct of its inquiries and the formulation of recommendations. This has meant that the Commission has tended to enjoy a high level of access to and consultation with the minister, thus enabling implementation of the majority of its recommendations.