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Justice Michael Adams, Chairperson, NSW Law Reform Commission
Mr Peter Hennessy, Executive Director, NSW Law Reform Commission
The short answer to the question whether there is a place for the principled study of criminal law issues by law reform commissions is an emphatic “yes”. The Australian model of law reform commissions is uniquely placed to undertake detailed, principled research into areas of law, and this includes the criminal law. They are permanent, independent organisations, able to coordinate large research projects, engage in community consultation, and write detailed, reasoned arguments for their recommendations to government.
There has been no consistent pattern of review of criminal law and procedure by Australian law reform agencies over the last 25 – 30 years. The Western Australian Law Reform Commission has recently completed a major review of criminal law and procedure in that state. The first Victorian Law Reform Commission
1did a significant amount of important criminal law work in the 1980s, and the recently re-established Commission has as one of its initial projects the law relating to sexual assault. The New South Wales Law Reform Commission has, perhaps more than any other law reform commission in Australia, done a significant number of criminal law projects, both large and small, over the last 20 years. This paper focuses primarily on the criminal law work undertaken by the New South Wales Law Reform Commission and considers the advantages of law reform agencies conducting criminal law reviews, as well as the practical and political constraints they face.
NATURE AND ROLE OF LAW REFORM COMMISSIONS
Governments began to set up law reform agencies in the 1960s and 1970s, in recognition of the need to regularly review and update the law. A more structured and principled consideration of changes to the law was required, rather than a development based on ad hoc or short-term political considerations. Law reform commissions proliferated in Commonwealth countries, based largely on the model of the Law Commission of England and Wales established in 1965. Law reform agencies based on this model have generally been set up as permanent bodies with relatively small numbers of full-time commissioners and legal research staff. They operate independently of the government of the day, and are given significant autonomy in conducting law reform projects. Many commissions work only on projects referred by the Attorney General, whereas others have the responsibility of developing their own reform program, which is then submitted to the Attorney General for approval. Some commissions operate with large numbers of part-time commissioners with expertise in the subject matters under review. Other commissions rely more on paid and unpaid consultants to undertake research and writing, either as an addition or an alternative to having permanent legal research staff.
The Australian states of New South Wales, Western Australia and Queensland have had continuously functioning law reform agencies for more than 20 years. Victoria had a very productive law reform commission until 1992, when it was abolished. It has recently been re-established. Tasmania has also recently re-established a law reform agency. The Australian Capital Territory and Northern Territory have also had part-time law reform committees operating for many years. South Australia also had such a committee until the early 1980s. In addition, the Australian Law Reform Commission, which reviews Commonwealth law, has operated since 1975.
Law reform commissions in Australia have developed expertise in undertaking large-scale research projects, often requiring detailed empirical research, and have special expertise in seeking community input into their research projects. They generally conduct community consultations by public meetings, seminars or focus groups. Such community input is important to ensure that law reform agencies’ reports reflect the diverse viewpoints in the community, as well as obtaining input from people with expertise and experience in the areas of law under review. Policy analysis and development is something that law reform commissions do very well.
STRUCTURE OF THE NSWLRC
The New South Wales Law Reform Commission commenced operation in 1966, and was given a legislative base in 1967.
2Until 1989, the Commission had a full-time Chairperson, up to three full-time Commissioners, and an additional six to eight part-time Commissioners. Since that time, the Chairperson has been part-time (either a sitting or retired Supreme Court judge), there has been one full-time Commissioner (a law professor on leave from one of the universities), and up to 18 part-time Commissioners (representing the judiciary and a cross-section of senior legal practitioners and academic lawyers). Commissioners are appointed by the Attorney General, usually for two to three years. They are generally selected for their expertise in the areas of law under review by the Commission.
The Commission usually has six to 10 active law reform projects. There are currently 18 staff, 12 of whom are lawyers.
3Staff work in small project teams, and conduct the primary research and writing of consultation papers and reports. The Chairperson of the Commission appoints a Division of the Commission (generally four to six Commissioners) to oversee each project. The Division is ultimately responsible for determining the policy direction of each project, and settling the recommendations in the final Report.
While the Commission normally has significant expertise in the area of law under review through its Commissioners and staff, there are occasions when the Commission contracts out specialised research and writing tasks. This is more likely to occur when empirical, non-legal research is required as part of a Commission project. For example, as part of a project on People with an Intellectual Disability and the Criminal Justice System, the Commission arranged for two studies to obtain data on how many people with an intellectual disability were appearing in the local courts in New South Wales.
NSWLRC: HISTORY OF CRIMINAL LAW WORK
After commencing operation in 1966, the New South Wales Law Reform Commission did no substantive criminal law or procedure work for its first 16 years. In 1982, it was given a major project to review the criminal procedure of New South Wales. Significant resources were devoted to that project between 1982 and 1987. Six major consultation papers, two final reports, and a research report of an empirical study were published.
5These papers covered a broad range of subject matters, including unsworn statements of accused persons, the jury in a criminal trial, the procedure from charge to trial, and police powers of arrest and detention.
6Since that time, the Commission has received references from the Attorney on the following subjects:
Some of these reviews were relatively small projects (eg, those relating to a single section of the
Crimes Act). However, each of them raised important policy issues, and the Attorney General at the time considered that referral to the Law Reform Commission ensured they were carefully examined and there was appropriate consultation with the community about them.
ADVANTAGES OF LAW REFORM COMMISSIONS AS REVIEWERS OF THE CRIMINAL LAW
There are several reasons why law reform commissions are particularly well-placed to undertake criminal law reform. First, law reform commissions are renowned for their research and analytical abilities. Nearly all law reform projects involve the task of ascertaining what is the current law, what is its purpose, and what are the fundamental principles and policies underlying it. A standard law reform commission methodology is to undertake research into the history of a particular law. Tracing the legislative or common law development of an area of law is usually a very enlightening process, since laws emerge from, and develop within, particular social and political contexts which may, or may not, continue to be relevant. This can, of course, take considerable time. The end result is that commissions are better informed to make judgements about the need for change, the appropriate policy to guide such change, and the legislative form to achieve it.
There are a number of other factors that support the argument for a role for law reform commissions in principle in criminal law reform. The first is what might be called an economic one. If a law reform commission is already in existence, there is already dedicated funding (in most cases, government funding) for the operation of the commission. There is already a group of commissioners and legal staff to undertake the task. Additional resources can be provided by the government if it is considered that additional commissioners, staff or consultants with specific criminal law expertise should be appointed to work on such a project.
Removal from political pressures
Another advantage that a law reform commission has in undertaking reviews of the criminal law is that they are one step removed from the day to day political pressures that a government faces. They have statutory independence, and can spend time researching and consulting on appropriate policies and principles which a government, taking account of political considerations, may be unable to do. Law reform commissions have the luxury, as it were, of being able to take the “high moral ground”. It can be an advantage to a law reform commission that it is not ultimately responsible for the implementation of its recommendations. This frees the commission to develop what it considers the most principled solution to a problem. On the other hand, the government is ultimately responsible for implementation, and may decide that a law reform report is not politically acceptable to implement.
As noted earlier in this paper, the New South Wales Law Reform Commission has done many criminal law projects over the last 15 years. These have included both large and small projects. The project on criminal procedure was a large one which extended over several years, but it was never completed. After several years of work, the then Attorney General requested in 1989 that a report on one aspect of the project be completed (Police Powers of Arrest and Detention After Arrest) and that, if further work was to be undertaken, new terms of reference should be formulated. This occurred at a time when the very existence of the Law Reform Commission was a matter of public debate in New South Wales, and it brought into sharp focus the issue of the Law Reform Commission undertaking very long-term projects extending over several years. Such tensions tend not to arise with smaller, short-term projects, as they are generally easy for governments to implement, and hence claim the political kudos. But, there are clearly advantages in undertaking comprehensive reviews of the criminal law from time to time, rather than proceeding in an ad hoc and piecemeal fashion. This is both a better way for the law to develop and a more efficient use of limited resources.
FACTORS WORKING AGAINST THE PRINCIPLED DEVELOPMENT OF THE CRIMINAL LAW
There are significant political constraints to the principled development or review of the criminal law. In Australia, as in many other countries, “law and order” political campaigns by both sides of politics have become the norm over the last 10 years. Governments feel pressure to promote a “quick fix” or a simplistic solution to what may be a complex and difficult issue. It has become common, at least in New South Wales, for new offences to be created for conduct which is already caught by an existing offence,
9or significantly increasing penalties for particular types of offences in order to promote an image of being “tough on crime”. In this political environment, governments can often be reluctant to refer criminal law reform projects to law reform commissions.
Related to this political context is the fact that to do detailed research and consultation properly can take considerable time. The time taken to undertake a major project does not always fit the government’s political agenda, the parliamentary timetable, nor the four-year election cycle (in New South Wales). Most politicians see themselves as having a finite time in parliament or as a minister. Most attorneys general, and indeed the governments which they represent, want to be recognised and acknowledged for particular achievements. Long-term law reform projects do not fit neatly into this political context and can mitigate against the referral of comprehensive law reform projects to law reform commissions.
A further political risk for a government referring a criminal law matter to a law reform commission is that they have no control over the recommendations that the law reform commission makes, although, of course, they do control implementation. But a law reform commission report, especially if it deals with a controversial subject-matter, may prove difficult for the government to ignore. It has been said that law reform commissions are often given projects from the government’s “too-hard basket”. Ordering a legislative review can be a way of deferring a politically sensitive issue for a number of years. This may mean that a law reform commission report is produced when the political context has changed, or the political pressure has subsided. However, ultimately, there will be a report by the law reform commission which the government will have to deal with in some way.
All law reform projects, whether they focus on the criminal law or not, have to be funded. The larger and more complex the review, the greater the resources required, and the longer the time needed to complete it. A long-term commitment to providing resources for such a review is needed.
In addition, there is significant competition for the limited resources that are available for law reform work. Law reform commissions are not the only government agencies that are involved in law reform work. Most government departments today have legal branches that conduct some law reform work. In New South Wales, the Attorney General’s Department has a small, specialist unit, the Criminal Law Review Division, which works only on criminal law matters. Other law reform work, or at least recommendations for law reform, may also flow from judicial inquiries or royal commissions.
10Special ad hoc committees, set up to look at a particular aspect of the criminal law, are also used regularly in New South Wales,
11and other Australian states and territories.
12Other inter-government committees may be set up as a result of the work of the Standing Committee of Attorneys General (SCAG). The Model Criminal Code Project is perhaps the best-known example of this.
13Universities and specialist research centres in universities also are involved in law reform research (eg, the Crime Research Centre at the University of Western Australia, and the Institute of Criminology at the University of Sydney).
Another factor to consider in the competition for resources is that work on the criminal law has to be considered alongside law reform in other areas of law. It can often be a difficult policy question as to whether reform of the criminal law should take precedence over the need to review other areas of existing law, or considering whether new laws need to be put in place to take account of changing or emerging technologies.
While it cannot be the primary test for the success or effectiveness of a law reform commission, implementation is a factor that cannot be ignored. Commissions operate within a political context where governments are, for the most part, keen to implement their reports. A project is not referred to a law reform commission unless the government sees merit in devoting resources to a review. If a commission regularly produces reports that governments decline to implement, then this will clearly have an impact on the type of work referred to the commission, and indeed may ultimately raise questions of the purpose and utility of a commission.
Over the 35 years that the New South Wales Law Reform Commission has operated, it has maintained an implementation rate in the range of 60 - 70%. The Commission would of course like to have a higher implementation rate, but accepts that the political reality is that some reports will not be implemented. Behind the implementation of each report, whether the time is short or long, there is always a political context to explain the implementation decision. Set out below are some examples of implementation of New South Wales Law Reform Commission reports during the 1990s, to give some idea of the potential time-lines.
o People With an Intellectual Disability and the Criminal Justice System (LRC 80, 1996)o Review of Section 409B of the
Crimes Act 1900 (LRC 87, 1998)o Review of Section 316 of the
Crimes Act 1900 (LRC 93, 1999)o Sentencing of Aboriginal Offenders (LRC 96, 2000)
Legislative implementation of reports is not the only measure of success of a law reform commission. Indeed, determining whether a report has been fully or only partially implemented can be a very complex task. Furthermore, not all reports require legislation as a means of implementation. Some reports can be successful if they raise community awareness about a particular problem, influence social policy development, or bring about changes to administrative procedures. Such achievements are often intangible and therefore difficult to measure. Some reports have great longevity, and come to be regarded as the definitive work on an area of law. They can become standard texts for law students, and are regularly referred to in judgments in higher courts.
Law reform commissions in Australia do have the capacity to undertake principled study of the criminal law. They have the advantage of being already in existence, with regular funding, and have developed expertise in undertaking large-scale research projects. They also have a sufficiently flexible structure to allow for the appointment of additional commissioners, consultants or temporary legal research staff with the required criminal law experience.
But law reform agencies (as with any other government-funded – or partly-funded body) do operate within a political context. To be successful, they must produce high quality work that is relevant to the community in which they operate. They also need the support and confidence of the government (particularly the attorney general) which ultimately determines the scope of the work that law reform agencies undertake.
Abolished in 1992, but resurrected with new format and legislation in 2001.
Reform Commission Act 1967 (NSW).
Several staff work on a part-time basis.
Details are set out in the Appendix.
Full details are set out in the Appendix.
A further report flowing from this earlier work was published in 1991 to finalise earlier work done on police powers of detention and investigation after arrest (NSWLRC Report 66).
The work of this Committee is being dealt with in a paper to this conference by Mr Matthew Goode. See further
Details about all of these projects are set out in an Appendix to this paper.
Crimes (Home Invasion) Amendment Act 1994,
Crimes Amendment (Diminished Responsibility) Act 1997.
For example, Royal Commission into Aboriginal Deaths in Custody, Canberra, ACT, 1991; Royal Commission into the NSW Police Service, Sydney, NSW, 1997.
Review of Domestic Violence Legislation (1999); Review of the Arnott’s Biscuits Extortion Case (1999).
Review of Commonwealth Criminal Law, Canberra, ACT, 1991.
The Model Criminal Code Project was initiated by the Standing Committee of Attorneys-General in June 1990. The project is overseen by the Model Criminal Code Officers Committee (MCCOC), which has representatives from each Australian jurisdiction. The Committee has followed the same methodology of most Australian law reform commissions of publishing discussion papers, seeking submissions, and then producing a final report on each area of criminal law. This project is still ongoing.
For example, human reproductive and gene modification technology.