The history of the structure, composition and work of the Commission over its first 25 years reveals a certain ebb and flow. The fact that references have been issued at irregular intervals, combined with the appointment of Commissioners for the purpose of working on particular references, has meant that the Commission has experienced a number of rebirths. The consequent sporadic publication of reports has sometimes given the deceptive impression that the Commission has proceeded by way of lethargy punctuated by periods of enormous productivity. But this has not been the reality. Instead, the Commission has continued its initial tendency to complete its work in a series of varied programs.
Throughout its existence, the Commission has enjoyed strong bipartisan support in Parliament. This is evident in the Parliamentary debates on legislation to implement recommendations of the Commission and during the passage of legislation affecting the Commission. A former Attorney General, the Honourable John Dowd QC, who was, in 1984, a member of the Opposition in Parliament, made the following comment during the second reading debate on the Law Reform Commission (Amendment) Bill and the Defamation (Law Reform Commission) Amendment Bill:
The first thing that the Opposition wishes to place on record is that those who have carried out the duties of law reform commissioners in this State - and I do not just say it as a matter of form, but out of admiration, and irrespective of whether one agrees with all of their reports - have done so in an exemplary fashion. We have been extraordinarily fortunate with the talented people who have been available for the Law Reform Commission in New South Wales. The quality of the reports has been exceptional. The Commission has given a lead to other States and to other countries.21
Despite these kind words, the Commission’s most difficult years were to follow. In the period between mid-1988 and mid-1990, the Commission’s budget was drastically reduced; new references failed to materialise; no appointments of full-time Commissioners were made; and staff levels and morale dropped. The common wisdom in the legal profession was that these steps were a prelude to the closure of the Commission, or at least the end of the Commission as a full-time agency. These developments occurred without any explanation or debate in Parliament or the media, and the reasons are still unclear. No adverse comments about the quality or relevance of the Commission’s work appeared, nor could it be argued that the state of the legal system in New South Wales was so sublime that it required no further review or reform.
In 1987, the Public Service Board conducted an “efficiency audit” of the Commission. This was part of an audit program designed by the Board to include every New South Wales public authority over a number of years. The management audit team consisted of two officers of the Public Service Board, Mr B McCarthy and Ms M Duckett, and the Commission’s then Research Director, Mr W J Tearle. In December 1987, a report on the Audit was presented by the Public Service Board to the Premier and to the Attorney General. It was noted in the 1988 Annual Report that:
The Commission records that it has not been asked to implement any changes or to take any other other steps which might have been based on that audit.22
Indeed, the audit generally was full of praise for the quality of the Commission’s work and its record for implementation of recommendations, and concluded that the efficiency of the Commission would be enhanced by additional funding, permitting an increase in the number of full-time Commissioners and the purchase of computer equipment.
In February 1988, the Commission was relocated at the instigation of the Attorney General’s Department from its premises in the Goodsell Building, Chifley Square, to offices on Level 12, ADC House, 189 Kent Street, Sydney. The then Attorney General, the Honourable John Dowd QC, performed the opening ceremony, stating his strong support for the work of the Commission and recognising its achievements over the years.
The relocation to the northern (The Rocks) edge of the Central Business District created some short term difficulties for the Commission, particularly that of access to the major law libraries in the city.
The relocation contained some hidden and unintended blessings. The physical separation from the offices of the Attorney General’s Department in the Goodsell Building served to emphasise the independence of the Commission from ministerial control, which is one of its main attributes. The problem of access to law libraries was overcome by new on-line computer linkages which permit searching of legal and other databases in Australia and overseas, while the Commission was able to maintain its own research collection under the direction of a full-time librarian, Ms Beverley Caska.
For some years, the normal complement of full-time members of the Commission was five. However, the vacancy caused by the resignation in August 1985 of Miss Deidre O’Connor (to take up a position as head of the Australian Broadcasting Tribunal) was not filled, and the position of full-time Commissioner in charge of the Community Law Reform Program was not filled after the appointment of Ms Helen Gamble as Chairman in May 1987. Thus, on 30 June 1987 the Commission was down to three full-time members and nine part-time members.
Mr Russell Scott, who had been Deputy Chairman of the Commission since May 1982, resigned from the Commission on 17 June 1988. Mr Scott was Commissioner-in-Charge of the Artificial Conception reference and played an important part in the Commission’s pioneering work in this area. The Deputy Chairman’s position was not filled until the appointment of Justice Hal Sperling in 1996. Following Mr Scott’s departure, on 30 June 1988 the Commission comprised two full-time members and 13 part-time members.
The year ending 30 June 1989 has been memorialised as “an extremely difficult one”,23 with good reason. After more than a decade of modestly rising and stable budgets, the allocation for 1988-89 was severely reduced from $1.12 million to $777,000. This represented a reduction in monetary terms of 31 per cent, and an even greater reduction in real terms. The main effect of the budget cut was on the staffing of the Commission, with the amount allocated for the employment of permanent staff reduced by $271,000 (from $809,000) and the amount allocated for the employment of consultants reduced by $53,000 (from $115,000).
Ms Helen Gamble resigned as Chairman effective from 6 January 1989, to take up the Foundation Chair of Legal Studies at the University of Wollongong. Despite substantial notice of her resignation, the Attorney General’s Department did not advertise the position of Chairman until late December 1988. When it became apparent that an appointment would not be imminent, Mr Keith Mason QC, the Solicitor General of New South Wales and a former Chairman of the Commission (1985-1987), agreed to serve as Chairman on a part-time, caretaker basis. The term of Mr Paul Byrne, Commissioner in charge of the Criminal Procedure reference and the only other full-time member of the Commission, expired on 31 December 1988 and Mr Byrne returned to the criminal Bar.
As a result of these departures and the failure to appoint new members, the Commission comprised 11 part-time members on 30 June 1989, including a part-time Chairman. This was the first time in the Commission’s history that there were no full-time members, challenging the very basis of the Commission as a full-time, permanent law reform agency. No new references came from the Attorney General. Several Commission Reports which were presented to the Attorney were considerably delayed in being tabled in Parliament. The budget cuts, the absence of full-time Commissioners and the failure to secure a new work program had a very negative impact on the Commission’s morale, leading to a high degree of staff turnover and a reduction in numbers.
The difficult circumstances continued into the next year. The budget for 1989-1990 contained a further 17 per cent reduction in monetary terms, meaning that the Commission’s budget allocation had been almost halved over the two years. No provision was made in the Commission’s budget for a full-time Chairman or for any other full-time Commissioners. In order to operate within budget, the Commission did not fill a number of staff positions which had become vacant during the year through resignation. In addition, the terms of most of the Commission’s part-time members expired on 30 September 1989, and it was decided not to seek their re-appointment until the Commission’s future had been clarified. No new references were received from the Attorney General for the second consecutive year, the last new reference being Alternative Dispute Resolution on 20 January 1988.
These facts increased speculation that the Commission would be shut down just short of its 25th year. However, there were also positive developments which indicated otherwise: the appointments of the Honourable R M Hope AC CMG QC as part-time Chairman of the Commission for two years from 5 February 1990 and Mr Peter Hennessy as Executive Director for three years from April 1990. Justice Hope was a retired Justice of the New South Wales Court of Appeal, who continued to serve on that Court from time to time as an Acting Justice as well as serving as the head of the Heritage Commission and the Chancellor of Wollongong University, among other responsibilities. Mr Hennessy joined the Commission from the Australian Law Reform Commission, where he was Principal Legal Officer. It was also indicated to the Commission that its budget allocation would not suffer a further substantial reduction in the following year.
The Commission’s budget did indeed stabilise, and one full-time Commissioner’s position was filled with the appointment on 1 August 1990 (for three years) of Professor David Weisbrot, then of the University of New South Wales School of Law. This ended a period of 19 months without a full-time Commissioner.
