Marian Hobbs Address to 7th Annual Public Law Forum, Wellington. "The Law Commission: Development of the 2005/2006 work programme"

Madam Chair, ladies and gentlemen. I appreciate the opportunity to speak to you today, although because of your professional experience and my recent introduction to this portfolio, I am understandably nervous. I think it is particularly relevant that I talk about the Law Commission and its work programme at a conference that seeks to examine nationally significant issues; for examining such issues is a core feature of the work of the Law Commission. The challenge for any government is to ensure that the country’s legislation reflects the values and diversity of its society. This audience is as aware as anyone of the issues that this country faces, and the questions being asked in terms of various laws and arrangements. Many of you will also have much knowledge about those issues that may not get much public attention, but that are of considerable importance nonetheless. These are also the areas that the Law Commission is concerned with. However, some concerns have arisen in the past about the implementation rate of Law Commission recommendations for legislative or policy changes. This is something that I remain conscious of in my role as Minister responsible for the Law Commission, and I want to ensure that there is further movement towards meeting the objectives of the Commission.

These objectives are reflected in the legislation that established the Law Commission in 1986. The function of the Commission is to review, reform and develop the law in a systematic manner – It is able to take a considered and consultative approach to these tasks. Its systematic approach is something that can’t be consistently assured in the political arena, with a three-year cycle and a busy legislative timetable and any number of instant issues to be considered and mistakes to rectify. Nine years in Parliament have taught me that hours in the chamber are scarce. In a House weeks there are at best only 14 hours for government legislation. The work of the Law Commission is therefore essential to feed into the political process – including where topics are highly technical yet of great importance and interest to those affected, and to broader society generally.

Whether technical or not, the projects undertaken by the Commission contribute to the legal fabric of New Zealand. Including its annual reports, the Commission has issued over 80 formal reports, covering a diverse range of topics including the application of imperial laws, mental health issues, and adoption. In coming months there will be reports completed on criminal defences, legal parenthood, and customs issues. In a changing society there needs to be continual review of the laws that govern it, and new laws developed in response to new circumstances. This is where an independent law reform agency is needed to provide an overview approach to considering laws and their effects.

The role of the Law Commission is interesting in the context of central government and legislative processes. As a Crown entity the Commission is not part of the public service, and the Commissioners are not public servants advising Ministers on matters of policy and law. But the Commission nevertheless works in the public interest, and it does have an influence on Government policies and legislation. Because of this, a working relationship exists between the Executive and the Commission and the department – and all parties are interested in the work of the other.

Following the evaluation of the Law Commission, which was completed by Sir Geoffrey Palmer in 2000, some changes were made in terms of how the Commission relates to other government agencies and to the Government itself. This included the creation of a new Ministerial portfolio with responsibility for the Commission, and a new requirement for the Government to issue a response to Law Commission reports within 6 months of their being tabled in Parliament. The evaluation identified that the strike rate of Law Commission recommendations being implemented was not particularly high – in fact it was less than 50 per cent. This was a concern considering the role of the Commission, and the significance of the projects that it undertakes. My initial assessment is that projects for the Law Commission may have been suggested in an ad hoc manner, rather than related to a specific programme of work. And I also suspect that only a small group of Ministers have focused on the Law Commission, leaving areas in health, science, biotechnology, environment, education unattended. Because of the seemingly unrelated projects, the Commission reports outside the priorities of busy ministries. However, there is no denying that the work of the Law Commission over the years is reflected in the development of law in New Zealand. This includes the Interpretation Act, the Imperial Laws Application Act, and the laying of the foundations for examining the relationship with the Privy Council, which led to the establishment of the Supreme Court in 2004. But I am mindful that further improvements can be made to enhance the strike rate that the Commission achieves. This includes improving some of the broader attitudes to law reform that may in the past have contributed to the Commission facing an uphill battle to have their recommendations implemented.

When I look at proposals for the coming year’s work programme, I could well be considering projects that come under the headings of public law, commercial law, and criminal law. The challenge for the Commission and myself is to agree to a programme that will lead to the development of high quality and highly relevant reports, which consequently have a strong chance of being acted on in some way. The front end of the process is therefore of great importance – that is, how proposals are formulated, written, and assessed. This is an area that the President of the Law Commission, Justice Robertson, has himself highlighted to me as being in need of attention.

Improving the way that project proposals are formulated and assessed is therefore part of continuing efforts to enhance the contribution that the Law Commission makes to the legislative programme. The Commission has been concerned that politicians and government departments may not have a clear feel for its purpose and work, and this is reflected in some of the proposals for projects put forward each year. Perhaps there could be a mechanism, which is activated when Departments are considering difficult issues – a question is asked whether this should also be a topic for related consideration by the Law Commission. Currently as Minister for the Environment I have a major discussion document out on water. There are a number of potential legal conundrums especially around water allocation and reallocation. So, early on I should be alerting the Minister responsible for the Law Commission of the need for some reflection from this body. This year the Law Commission and I have sought to better address such concerns. When I put out a request for proposals from Ministers earlier this month, the request included a requirement for all proposals to be assessed against particular criteria. These criteria highlight the purpose and certain qualities of the Law Commission – including its ability to work on issues that span different sectors of government and society, and to engage the people involved in these sectors, as well as its independence and ability to promote informed debate.

Apart from the clearer indication as to suitable projects that is hoped will result from the use of criteria, finalising the work programme requires good communication between Ministry of Justice officials and the Commission, and between these agencies and myself. In this way a reasonable and informed agreement can be reached. Further to this, as the Palmer review recognised, while remaining independent, the Law Commission needs to work closely not only with the Government, but also with the government agencies that are responsible for particular areas of law or policy. Projects have worked well in recent years where departments have actively liaised with the Commission and assisted with obtaining and sharing information. The requirement for the Government to respond to Commission reports makes these relationships particularly important – officials can provide better advice to Ministers on recommendations when they have a good knowledge of the background that led to them. Both the Law Commission and I therefore want to encourage such liaison in the interests of quality and understanding.

With improvements made at the different stages of the process – the development of the Commission’s work programme, the involvement of government agencies in the various projects, and carefully considered government responses to recommendations – the Law Commission will undoubtedly continue to perform a key role in the development of this country’s laws. This contribution will help the Government to address significant issues that impact on New Zealanders, as well as ensuring that laws are practical, relevant, and understandable.

I look forward to the development of the coming year’s work programme, and to working with and supporting the Law Commission in its tasks of reviewing, reforming and developing the law.

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