The Birth and Rebirth of Law Reform Agencies

1. The Birth and Rebirth of Law Reform Agencies Professor Neil Rees Chairperson, Victorian Law Reform Commission Australasian Law Reform Agencies Conference Vanuatu, 10-12 September 2008

2. Introduction • Institutional law reform is ‘a rational solution to a central dilemma of law itself – how to maintain the order and predictability in the law whilst making sure that it constantly evolves, changes and adapts to new times’ (Justice Michael Kirby). • The paper charts the rise and fall of institutional law reform in the Commonwealth. • Central focus on institutional law reform in Victoria. • It concludes with 6 ‘lessons’ that may be learnt from the cycles of institutional law reform.

3. Brief historical overview The birth of law reform agencies • First permanent part-time law reform agency established in England in 1930. • First permanent Australian bodies established in the 1940s. • These bodies were unique; they were established not for a limited time or a limited purpose but because ‘the whole body of the law stood potentially in need of reform’.

4. Brief historical overview • 1965 – Law Commission of England and Wales, Scotland established • Establishment of UK commissions increased pressure in Australia for similar bodies; first modern law reform commission established in 1966 in NSW. • Other states and territories followed: Qld 1968; ACT 1971; WA 1972; Tas 1974; Vic 1974. • 1975 – first Australian national law reform agency (ALRC) with Justice Michael Kirby as leader.

5. Brief historical overview • Law reform trend spread throughout the Commonwealth • Most provinces in Canada had established standing law reform bodies by the mid 1970s, national law reform body established in 1970 • Pacific countries (Fiji, Solomon Islands, Papua New Guinea) created law reform agencies in the late 1970s • New Zealand Law Commission in 1985 • Many Asian, African and Caribbean Commonwealth countries established law reform agencies at this time.

6. Victorian history • Victoria’s history of law reform agencies: • Statutory office of Law Reform Commissioner created in 1974. • Law Reform Commission of Victoria established in 1984. • Law Reform Commission of Victoria abolished by Kennett Liberal government in 1992. • Victorian Law Reform Commission established by Bracks Labor Government in 2000.

7. Victorian history • Two reasons were given for the abolition of the Law Reform Commission in 1992: • Lack of independence • Expense • The current commission (the VLRC) closely resembles the former commission in its structure, powers and functions. • Parliament repealed the Act which repealed the Act that governed the former commission.

8. Six lessons learnt • Local conditions are always of fundamental importance • Personality differences • Symbolic gesture • Government support for institutional law reform waxes and wanes over time • Reform fatigue; range of references needed • Law reform commissions must be, and must be seen to be, independent

9. Six lessons learnt • Law reform commissions must resist the temptation to be didactic • Style is important; can alienate when the issues are controversial • Law reform commissions must be consultative and garner support for their views • Involvement • Ownership • Law reform commissions must be useful and flexible • Tasks evolve over time • Recent Victorian example (abortion law reform)

10. Conclusions • For those interested in survival, new governments, new ideologies, new competitors and failure to evolve are danger signs. • But…in times of great change, when the significance of the common law diminishes, law reform commissions provide governments with a means of developing new laws that are principled, considered and enduring.