Professor Neil Rees Chairperson, Victorian Law Reform Commission

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

• Victorias 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.
• Butin 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.