Special features of law reform commissions
The “new principle” of law reform described by Professor Sawer has resulted in the adoption by the Australian states and territories and the Commonwealth of a model for law reform agencies with four distinguishing characteristics. Law reform commissions are:
- permanent;
- full-time;
- independent; and
- authoritative.
In addition, law reform commissions have adopted distinctive research methods involving wide consultation and social research. The success of these methods in determining the state of social practices and attitudes towards particular laws under review depends largely upon the four characteristics mentioned above. Their benefits are clear from close examination of each.
That law reform commissions are permanent bodies, generally constituted by statute, means that they are capable of building up expertise concerning the various processes and methods involved in reforming the law. Permanence also means that they can keep the law constantly under review, with a view to its systematic development - one of the tasks assigned by statute to this Commission.4 Professor David Walker concluded in a review of the work of the Scottish Law Commission:
There is little doubt that it is better to have a permanent body concerned with law reform and revision than leaving it to occasional Royal Commissions, Departmental Committees or other rather haphazard investigations. It is only a permanent body which can undertake the long-term detailed investigations which are necessary before any changes in a substantial and complicated area of law, such as succession, diligence [enforcement of debts] or evidence can be settled and put into proper form for enactment.5
The general public are also more likely to become aware of a continuing body and thus participate in the law reform process by making suggestions for reform and by contributing to a commission’s investigations through submissions and surveys.
Law reform is a full-time job, as the failure of part-time reform bodies over nearly a century in New South Wales has shown. The process of research, consultation and policy analysis leading to the production of a final report demands that all the energies of Commissioners in charge of references are devoted to the task in hand. As Professor K C T Sutton, who served for a time with this Commission, has argued:
The truth is that law reform, if it is to be done properly, is a slow, complex, and time-consuming business, involving major research to ascertain what the existing law is, what are its defects, what has been done to correct those defects in other jurisdictions, and stemming from that, what tentative solutions can be suggested to meet these deficiencies, followed by consultation with professional bodies and other interested groups, and finally, the framing and submission of concrete proposals for reform. This sort of thing cannot be done adequately or within reasonable time limits by members serving part-time who come to the task “at the fag end of the day” or at week-ends.6
The independence of law reform commissions is perhaps their most distinctive feature. They stand apart from the interests and motivations of political parties, the bureaucracy and private groups. They are not regarded by the public with as much suspicion as government departments. This public perception of neutrality assists commissions in their functions, which are essentially public. Commissioners, being appointed to statutory offices for particular periods, can be removed only for certain specified reasons. Hence, like the judiciary, they are free to make their deliberations without the fear of dismissal or interference by the government of the day. Of course, law reform commissions do not have complete autonomy since they are usually, as is the case with the New South Wales Law Reform Commission, only able to investigate topics referred to them by the Attorney General. Commission reports also depend upon the priorities and policies of government for implementation either by statute or by administrative action. It is the government which sets the level of funding and provides resources, especially staff, to enable commissions to operate effectively (or alternatively, to preclude them from operating effectively). The government also has the power to appoint commissioners (or to refrain from making appointments) and therefore to determine the composition of a commission over a period of time.
There is a certain dialectic between the effectiveness of commissions, in terms of implemented reports, and their independence. On the one hand, if commissions make recommendations which are politically, socially or economically unrealistic, they run the risk of appearing irrelevant and a waste of public funds. But if commissions only recommend changes which are certain to find favour with the government of the day, or seek only references which are uncontentious, their independence and usefulness will soon be questioned publicly. This aspect of independence, the conflict between principle and pragmatism, is very different from the question of direct government interference.7 It was once thought that law reform commissions would be able to perform their tasks without having regard to matters of policy and to engage in work of a purely legal nature.8 However, it has since been accepted that there really is no aspect of law reform worthy of consideration by a law reform commission which is strictly policy-free. As Lord Scarman, first Chairman of the English Law Commission, has said:
There is no cosy little world of lawyers’ law in which learned men may frolic without raising socially controversial issues ... I challenge anyone to identify an issue of law reform so technical that it raises no social, political or economic issue. If there is any such thing, I doubt if it would be worth doing anything about it.9
Most of the areas which law reform commissions examine have not previously been the subject of detailed policy formulation by government. Through the activity of producing comprehensive and well-argued reports containing detailed recommendations based on the reasoned assessment of alternative views, a law reform commission performs the functions of a standing advisory committee, one whose independence of thought makes it particularly valuable.
The authority of law reform commissions is a vital aspect of their effective operation. It is a combination of public standing, credibility with government, reputation and legal stature. The knowledge that their views are highly regarded by government assists commissions in obtaining the co-operation of government departments, private bodies and individuals. Although this Commission has wide powers to compel the appearance of persons and the production of documents, it has never been necessary to use them. Instead, it is our experience that most people are pleased to have the opportunity to contribute to our projects. The high standing of law reform commissions also attracts expert professionals to work with them as commissioners, consultants and staff.
The publications produced by this Commission have been accorded high standing. They are regularly used by courts, universities and practitioners as authoritative statements of the law and of the social problems sought to be remedied. The passage of the Interpretation Act 1987 has extended this reliance by providing that reports of the Commission may be used in the construction of statutes whose meaning is unclear.10 Those responsible for the implementation of the Commission’s work are assured that every effort is made by the Commission to secure the accuracy and cogency of its reports.
The high quality of work produced by the New South Wales Law Reform Commission and its enviable record of implementation demonstrate that it has continued to perform the functions entrusted to it over 30 years ago. In the words of William H Hurlburt QC, who has comprehensively examined the work of law reform commissions throughout Great Britain, Canada and Australia:
... there still remains a place for separate law reform machinery activated by concerns which are different from those of the executive government of the day and which are also different from the concerns of government departments and agencies. That place includes the technical law, areas of social policy not fully occupied by existing government machinery, and areas of social policy in which the expertise and independence of the separate law reform machinery are useful to government. Failing separate law reform machinery, the necessary work of law reform is likely to be neglected and the law will become less and less suitable to changed conditions and values of society.11
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