The New South Wales Law Reform Commission was established, first by administrative act in 1966 and then by statute in 1967, as the first permanent body in Australia charged with the task of reforming the general law. The functions of the Commission are set out in section 10(1) of the Law Reform Commission Act 1967. It says the Commission is required to consider the laws of New South Wales with a view to
- eliminating defects and anachronisms,
- repealing obsolete or unnecessary enactments,
- consolidating, codifying or revising the law,
- simplifying or modernising the law,
- adopting new or more effective methods for the administration of the law, and
- systematically developing and reforming the law.
This part of the website looks at broader questions about the role of law reform commissions in the common law world. You can find out more about the processes of the New South Wales Law Reform Commission by going to the Step by step guide on this website.
Why law reform commissions are important
The creation of the Commission was part of a general movement across the common law world. As Professor Geoffrey Sawer has observed, the establishment of permanent law reform commissions in the 1960s was the logical culmination of a “qualitatively new principle ... that the whole body of the law stood potentially in need of reform, and that there should be a standing body of appropriate professional experts to consider reforms continuously”.1
The only bodies which existed before this trend were ad hoc or part-time, and few of their recommendations were adopted or implemented. Since then, however, there has been a proliferation of agencies concerned with law reform. Today, government departments, interdepartmental committees, parliamentary committees, the judiciary, Royal Commissions, public inquiries, private consultants engaged by Government and private bodies all have reform of the law as one of their objectives. Yet despite all the activity of other bodies, there is still a vital role to be played by law reform commissions. As many of the more urgent or routine tasks of simplifying and modifying the law have been taken on by other bodies, the direction of law reform commissions has changed. Law reform commissions are now more often concerned with the broader, more complex socio-legal issues which arise in contemporary society. Underlying this change in direction is a recognition that the composition and methods of bodies like the New South Wales Law Reform Commission render them better able to deal with the legal aspects of social problems than most other law reform agencies.2
The courts engage in the development of the law by adapting it to changing circumstances and, through the appellate process, by reconsidering established doctrines with a view to their modification. But courts can only do this in a piecemeal way because they have as their primary function the adjudication of individual disputes. Judicial law reform can only be systematic over a long period of time. Appeal to the highest Australian judicial authority, the High Court, is expensive and no longer available by right, so that some questions may remain permanently unresolved. Although it is now widely accepted that law reform is a legitimate function of the courts, there remain reservations, not least among the judiciary, as to whether they are the most appropriate bodies for this function. Justice Mason, former Chief Justice of the High Court of Australia, said in 1979:
The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court’s facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature.3
While Parliament is ultimately responsible for most law reform through the passage of legislation, the reforms initiated within it have diminished over the years. The ever-increasing workload of the legislature has meant that the ability of elected representatives to introduce private members’ bills and scrutinise the Government’s legislative program is often limited. Members of Parliament have a wide range of commitments, and usually the depth of specialised and up-to-date knowledge required to initiate reforms is not available or capable of being obtained within the limited time available. Australia, unlike the United Kingdom, has no tradition of significant reforms being introduced by private members’ bills. Similarly a system of parliamentary committees performing investigative and law reform functions although adopted, has had little success in Australia, the notable exceptions in this regard being the Commonwealth Senate Standing Committee on Constitutional and Legal Affairs and the Victorian Parliamentary Legal and Constitutional Committee.
Officers within government departments have the primary task of implementing Government policy and seeing to the manifold business of public administration. Many law reform tasks of both a technical and a broader social policy nature fall within their purview and are accomplished as a result of their research. However, they tend to concentrate on areas considered to have immediate political significance. Many necessary reforms which are complex and specialised, requiring long deliberation, are neglected because resources are unavailable or because they are not regarded as urgent within current political priorities. Government departments engage in consultation with interested individuals and bodies, and receive representations from the community, but their mode of operation is essentially confidential. The particular units of government departments most concerned with law reform do not have a high public profile and may have limited contact with the legal profession and judiciary, which are usually the groups most aware of aspects of the law in need of reform.
Royal Commissions and public inquiries are ad hoc bodies created to inquire into and report upon specific problems or upon their more general aspects as defined in their terms of reference. They have time limits within which they must report and so must usually limit the scope of their inquiries. Royal Commissions in particular tend to conduct their proceedings in a court-like manner. This formality can impede the collection of information. The extent to which they engage in informal consultation varies and they are often unable to undertake -extensive research outside the specific matters under investigation. As they are temporary bodies, they cannot engage in a continuous process of law reform or participate in the implementation of their recommendations.
Professional bodies, such as the Law Society and Bar Association, have a long tradition of involvement in attempts to improve the legal system. While they have shown great commitment to various law reform tasks, they are impeded by the limited resources available to them and particularly by the fact that their most valuable members for this task are already heavily committed to the practice of the law.
