I. SCOPE OF THIS REPORT

1.1 This report traces the legislative history of s10 of the Usury, Bills of Lading, and Written Memoranda Act 1902 and examines the section's current operation. The recommendations of law reform agencies in other jurisdictions with respect to provisions corresponding to s10 are considered. The report concludes with the recommendation that the section be repealed (see para 5.2).

II. THIS REFERENCE

1.2 This is the fourteenth report in the Community Law Reform Program. The Program was established by the then Attorney General, the Hon F J Walker QC MP, by letter dated 24 May 1982 addressed to the Chairman of the Commission. The letter contained the following statement:

This letter may therefore be taken as an authority to the Commission in its discretion to give preliminary consideration to proposals for law reform made to it by members of the legal profession and the community at large. The purpose of preliminary consideration will be to bring to my attention matters that warrant my making a reference to the Commission under s10 of the Law Reform Commission Act, 1967.

The background and progress of the Community Law Reform Program are described in greater detail in the Commission's Annual Reports since 1982.

1.3 This reference has its beginning in a letter dated 29 April 1986 to the Commission from Mr W W Caldwell, a Sydney barrister. Mr Caldwell pointed out various anomalies, discussed at para 3.1, in the operation of s10 and suggested this as a possible area of statutory law reform for consideration by the Commission. The Commission is particularly grateful to Mr Caldwell for his involvement and his helpful critical assessment of the issues.

1.4 A background paper was prepared by Mr Kalinga Wijeyewardene, a legal officer of the Commission, and a reference was sought by the Commission in October 1986. The reference was granted by letter dated 22 December 1986 from the then Attorney General for New South Wales, the Honourable T W Sheahan BA, LLB, MP, to inquire into and report on the following matters:

1. Whether s10 of the Usury, Bills of Lading, and Written Memoranda Act 1902 should be repealed; and
2. Any related matter.

1.5 The background paper, which recommended the repeal of s10, was submitted to a number of interested bodies. The Law Society of New South Wales, Australian Society of Accountants, Australian Bankers' Association, Permanent Building Societies Association (NSW) Ltd and the Commercial Law Association of Australia Ltd supported the repeal of the section.

1.6 The draft report was prepared by Mr Kalinga Wijeyewardene in 1987 and considered and revised by the Division in consultation with Dr John Carter, a consultant to the Division and now a part-time member of the Commission.