[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

APPENDIX A

The Systematic Review, Reform and Development of the Law: People, Process, Principle – and Prospect

Hon Justice Sir Kenneth Keith

Sir Kenneth Keith was a member of the Law Commission from 1986 to 1996 and President from 1991 to 1996, until his appointment as a Judge of the Court of Appeal. This paper expands slightly on a paper given at a seminar organised by the Law Commission and held in Dunedin on 9 April 1996 at the beginning of the New Zealand Law Conference.

I WELCOME THIS OPPORTUNITY to reflect on the first 10 years of the Law Commission. What does the experience of the last 10 years mean for the future role of the Law Commission and, more generally, for the review, reform and development of the law?

That very large question cannot be answered simply by looking inwards at the work of the Law Commission itself. This is a time of great change both within and outside New Zealand. In that rapidly changing – some would say revolutionary – context, one also needs to examine the roles of the other, various bodies involved in the development of the law.

My own original expectation when the Law Commission was being established, and when I was asked to be one of its original members, was that we would be doing more of the same; that is to say, more of the same that was being done by the part-time Law Reform Committees. We would of course be better supported. The law reform task would be our main commitment rather than something done on a part-time basis at the end of the day and at weekends. As well, larger topics could be taken on, examples being the early references given to the Commission on company law and court structures.

The systematic review of the law

Those expectations of more of the same, even if bigger and better, were supported by experience in law reform agencies elsewhere in the Commonwealth. But also, there was by then experience – even if not as apparent – of a systematic role for bodies concerned with the review, reform and development of the law. They could adopt an overall approach to broader issues. That wider role is indeed emphasised by the Law Commission’s statute. The very name “Law Commission” helps make the point. Sir Owen Woodhouse, the first President, was clear from the outset that we were not to be simply a “law reform” body. The Commission had a wider constitutional role. This central advisory body for the review, reform, and development of the law of New Zealand was to undertake that responsibility in a systematic way. Two specific provisions of the Act make that clear. The purpose of the Law Commission Act 1985, under s 3, is to promote the systematic review, reform and development of the law of New Zealand. The first of the principal functions of the Commission stated in s 5(1) is to take and keep under review in a systematic way the law of New Zealand.

That systematic element appears, as well, in the powers that the Commission has to initiate review and to advise others. It can also be seen in the use of the word development. That is a relatively unusual word in law reform statutes. It is interesting that it is also to be found in article 13(1)(a) of the Charter of the United Nations in the description of the role, exercised principally by the International Law Commission, of undertaking studies for the development and codification of international law.

The wider role also appears in the duty of the Commission to take into account te ao Mäori (the Mäori dimension) and to give consideration to the multi-cultural character of New Zealand society. The broader responsibility appears in addition in the double emphasis in the statute on the accessibility of the law. One function of the Commission is to advise the Minister of Justice on ways in which the law of New Zealand can be made “as understandable and accessible as is practicable” (s 5(1)(d)); and then there is an overlapping duty to “have regard to the desirability of simplifying the expression and content of the law, as far as that is practicable” (s 5(2)(b)).

Those duties in respect of accessible law are not simply concerned with plain language, although that in itself is a very important matter. They are also concerned with better policy-making – since good, accessible law can be prepared only if good process has properly identified the problems, relevant information has been gathered, and the policy has been properly worked out. As the Commission’s Annual Report 1995 indicates, there have been too many instances of failures in some or all of those respects in recent years. Too many of those with relevant responsibilities still do not know – or, if they do, they neglect – the Legislation Advisory Committee’s report, Legislative Change: Guidelines on Process and Content (rev ed, Wellington, 1991), which provides important advice on developing new laws. Even more broadly, as the current Commission project on Women’s Access to Justice: He Putanga mo Nga Wahine ki te Tika indicates, access to the law can be assessed in terms of the availability of legal advice, and of legal information, and of the monocultural and male-dominated nature of the legal system.

The first piece of published work by the Commission is an interesting instance of the broader systematic role of the Commission. That is the report on Imperial Legislation in Force in New Zealand (NZLC R1, 1987). The opening paragraphs recall the obligation of the Commission to keep the law of New Zealand under review in a systematic way and to make it as accessible as is practicable. They recall as well the heritage of English law as part of the law of New Zealand. The report ranges across legislation affecting many different fields – constitutional law, habeas corpus, the boundaries of New Zealand, Privy Council appeals, property, and a miscellany of others including the law of privacy, slavery, fire prevention, set-off and guarantees. It makes the law accessible by actually gathering and printing the old statutes which the Commission thought should remain in force – the first time that had been done in an official way for over 100 years.

The nature of the task meant that an overall approach was essential, as was close attention to detail. That detail highlighted the need for further work to be done on particular topics, which provided the impetus for our subsequent projects on Property Law and Habeas Corpus. With our first report, as with all our subsequent work, the Law Commission was greatly helped by contributions supplied willingly, and in that case urgently, by members of the practising profession, academics and public servants. (Two of those who assisted later became members of the Commission!)

The next publication of the Commission, incorporating its first and second Annual Reports (1986/1987), contained a quotation from the 20th Annual Report of the Law Commission of England and Wales (HMSO, London, 1986) which emphasised the general constitutional role:

But perhaps the Law Commission’s main achievement has been to establish and maintain among informed opinion the reputation and status of an independent constitutional law reform body. This it has done by thorough research, extensive consultation, the ability to harness specialised academic and professional opinion and, notwithstanding the occasional dissenting opinion, a capacity to agree on solutions which command the widest support. (Para 1.13)

That bigger picture approach is of great value to the Commission, whether it is considering particular matters on its own agenda or giving advice to others. There is some reflection of some of the more general matters in the annual reports of the Commission. Over the years, for instance, brief comments are to be found on the costs to the economy that can be caused by bad law (and, correspondingly, the savings flowing from good law); on the poor quality of some legislation; on the choice between standards and rules in the preparation of legislation; on the importance of the facts and of good consultation; on the role of principle in developing policy; and on the growing internationalisation of much law-making.

I now take two examples of the value of the systematic approach which the Commission has developed. The first concerns a large group of interlocking matters; the second is more focused.

The organisation of public power

The larger example concerns the organisation of public power, a matter on which the Commission has undertaken a great deal of advisory work, and which has also been addressed in some of our major projects. This work relates to changes occurring both within and outside New Zealand. So far as domestic issues are concerned, members of the Commission have, for example, given advice to Ministers, and occasionally to senior officials, on the reorganisation of the departmental structure for justice, the inland revenue, tertiary education (in the Learning for Life process), agriculture, fisheries, transport, and the police; on the State Sector, State Owned Enterprises, Crown Entities and Public Finance legislation; on proposals relating to the Audit Office; on the choice of decision-making methods and institutions; on matters concerning the Treaty of Waitangi; on coercive powers; on the operation of the Bill of Rights; on the law relating to takeovers; on treaty-making, acceptance and implementation; and on the legal position of the Crown. That is by no means an exhaustive list of work concerning the organisation of public power.

Throughout that work questions arise about appropriate governmental structures, the conferral of power independently of ministers, the countervailing powers and controls of ministers, systems of responsibility and accountability, provision for appeal and review and audit, overall design issues concerned with the major features of governmental power, and aspects of the more general contexts (notably the international ones) in which these issues are to be considered.

I do not know that the Law Commission is uniquely well-placed to address those major issues. Obviously, there are many others who have substantial knowledge of them and a base on which to make proposals for review and reform. Those others include, for example, politicians, senior public servants (including those in the Ministry of Justice as well as in departments such as Treasury), academics, commentators, judges, legal practitioners, interest groups. I might add a word or two about the role of the academics, calling in aid the Chancellor’s lecture given by the President of the Czech Republic, Vaclav Havel, at Victoria University of Wellington last March. The lecture is entitled “Karl Popper’s The Open Society and its Enemies in the Contemporary Global World”, and in it the President indicates some ways in which intellectuals – and therefore academics – can make their contribution:

It would be nonsense to believe that all intellectuals have succumbed to utopianism or holistic engineering. A great number of intellectuals both past and present have done precisely what I think should be done: they have perceived the broader context, seen things in more global terms, recognized the mysterious nature of globality and humbly deferred to it. Their increased sense of responsibility for this world has not made such intellectuals identify with an ideology; it has made them identify with humanity, its dignity and its prospects. These intellectuals build people-to-people solidarity. They foster tolerance, struggle against evil and violence, promote human rights and argue for their indivisibility. In a word, they represent what has been called “the conscience of society”. They are not indifferent when people in an unknown country on the other side of the planet are annihilated, or when children starve there, nor are they unconcerned about global warming and whether future generations will be able to lead an endurable life. They care about the fate of virgin forests in faraway places, about whether or not humankind will soon destroy all its non-renewable resources or whether a global dictatorship of advertisement, consumerism and blood-and-thunder stories on TV will ultimately lead the human race to a state of complete idiocy. ((1995) 5 Stout Centre Review 6)

I have wondered at times whether our academic colleagues might not be more involved than they sometimes are in considering the larger social, economic, environmental and political issues.

Whether the Commission’s role is unique or not, it certainly does have a better opportunity than many organisations to contribute to identifying, debating and helping resolve those larger issues; and it does bring a particular expertise to bear, as well as certain well-developed and consistent ways of seeing the world and seeing power. A related expertise is an understanding of the importance of words, particularly when they start to take legal form or to affect legal outcomes.

A current and recent example is the misuse or at least over-use of the word devolution in relation to the position of Mäori within our constitutional system – or indeed in relation to other bodies. Is it really the case, for example, that Ngäi Tähu (or Käi Tähu) or the University of Otago should be seen essentially as communities or organisations created by the State, which then devolves authority upon them? Is it not sometimes much more appropriate to think of them as communities which organise themselves completely or largely independently of the authorities in Wellington? It may be that they will occasionally need some resources and power to be granted to them by the state institutions. But they do not on that account have to be seen as creatures of central government and Parliament, and as something to be funded entirely by those institutions. The communities and their constitutions will sometimes have existed longer than the central institutions. The university example also reminds us that many of the communities exist regardless of territorial boundaries – especially in these days of the communication revolution. This is not simply a matter of new technology: there have been some useful reminders in recent years of the political and theological doctrine of subsidiarity, of having authority at the appropriate level and in the appropriate organisational form.

That doctrine helps to remind us that when we are thinking of public power we can draw on a wide range of models. We need not be trapped by a top-down view of power, with all power coming from central government or Parliament. In drawing on those models, we should recognise the massive changes that have occurred in the world around us. Among those changes are the redistribution of a great deal of authority. A particularly striking example is the fact that nation states – of the kind that have been in existence for the last three or four centuries – have lost a great deal of authority to the international community, to private organisations within and outside their territory, and to local government organisations.

Remedies for breaches of the Bill of Rights

I now turn to a more particular example and a more orthodox kind of law reform. It relates to the thought I had back in 1986 that one of the topics which the Law Commission might well review is the law relating to Crown liability. Such work is now being done by the Commission in connection with the issues arising from Baigent’s Case [1994] 3 NZLR 667, in which the Court of Appeal held that a person subject to a breach of the New Zealand Bill of Rights Act 1990 might be entitled to a monetary remedy.

The work illustrates both the Commission’s systematic approach and its experience. In the first place, we were able to draw on extensive advisory and reference work, particularly concerning legislation which purported to protect the exercise of public power – a central feature of the Baigent litigation. For instance, in 1990 we had initiated some work on such legislation when we noticed that three interrelated Bills then in Parliament, the Occupational Health and Safety Bill, the Building Bill, and the Resource Management Bill, all dealt differently with the question of the liability of those who might act in breach of the duties imposed by those proposed measures. Some work was also done at that stage on other similar protection provisions to be found throughout the statute book. That has been massively updated, resulting in a 50-page document setting out some hundreds of statutory provisions. As well, the Commission has assisted recently with the preparation of submissions for the Legislation Advisory Committee on legislation concerning chemical weapons and submarine cables. In both the protection issue has arisen. The more comprehensive work provides a firm basis for recommending that the protections should be deleted. This illustrates a most valuable interaction of the general and the particular.

Somewhat earlier, the Commission had prepared a Final Report on National Emergencies (NZLC R22, 1991). One proposition which was adopted in that report was that an injured person should be able to seek damages when injured by unlawful action. That was however without prejudice to the question whether individuals, particularly volunteers, might themselves be protected from liability: it is possible for a protection position to have that limited effect while preserving the cause of action against the Crown or other public bodies. That report also raises the important question whether some lawful exercises of power which would cause substantial loss to individuals should carry with them a duty of compensation. Some emergency powers do so provide. The duty in that case is one arising not from fault but from community responsibility.

We were able to supplement the research into New Zealand law by drawing on foreign research. In part we knew of this from our library holdings and contacts with other law reform bodies, particularly the work of the Ontario Law Reform Commission and the related excellent work of Professor Peter Hogg. We also commissioned a most valuable academic paper on the experience elsewhere. That experience indicated that some of the predictions being made of the effect of Baigent’s Case were grossly overstated.

That indication, or perhaps tentative conclusion, was also supported by the facts, so far as they exist, in New Zealand. We examined the material to hand of the, as yet, very limited practical impact of Baigent’s Case. That emphasis on the facts – an insistence evident from the beginning of the work of the Commission – is highlighted very nicely by a book prepared as a consequence of research undertaken for the work of the American Law Institute on product liability: Exploring The Domain of Accident Law: taking the facts seriously (Oxford University Press, New York, 1996). Its sub-title helps make the point I wish to emphasise. The authors, including Professor Michael Trebilcock, come to what they refer to as “a bleak judgment about the tort system as a compensatory mechanism” (436) for personal injury. Tort law, they say, should be abandoned for that purpose. They would radically restrict tort liability and look to other sanctions for enforcement.

Finally, the draft paper draws on relevant principles, including the principles bearing on judicial immunity. The Commission is at the same time considering the issues arising from the Court of Appeal decision in Harvey v Derrick [1995] 1 NZLR 314, in which the Court of Appeal held that in certain circumstances proceedings can be brought against individual District Court judges. That search for principle had regard not just to the long-established proposition that where there is a right there should be a remedy, but also to relevant international obligations, and in particular to the recent report of the Human Rights Committee (elected under the International Covenant on Civil and Political Rights) on New Zealand’s compliance with the Covenant. Although the Committee knew about Baigent’s Case, it proposed that there should be an explicit remedy for breach of the Covenant and the Bill of Rights.

As a result of this systematic approach, we were able, first, to better state the issues in this case by taking a wider view, and, secondly, to propose, in a tentative way, some possible answers to the significant questions. The draft papers begin with the proposition that legislation conferring public powers might sometimes – for reasons of community responsibility – provide for compensation which is not necessarily fault-based. I have already mentioned the example of emergency legislation.

Secondly, the draft paper recommends that public power (for instance of search and seizure or arrest) should be conferred in appropriate terms; and that there should not be an immediate rush to support those powers with protective provisions. For at least a century, some state officials have had powers alone without protection. Their experience suggests that the double drafting to be found in many statutes is not necessary. Certainly, it is difficult to reconcile many of the protection provisions with principle. That is not however to deny the value, in some circumstances, of providing for protection of the individual actor, particularly those who are volunteers, so long as the person who has been injured by an unlawful act is still entitled to appropriate relief. There are other particular areas in which protection provisions can also be justified.

Thirdly, any liability should in general match the responsibility or the powers of the person who is to be held liable. There are real difficulties with some of the wider propositions that have been read into the judgments in Baigent’s Case about the Crown having a role of general guarantor under the Bill of Rights.

Finally, the Commission draws on its understanding of why it is that people comply with the law. That is greatly assisted by much research and writing, including that mentioned earlier of Michael Trebilcock and his colleagues. They are very careful to test the theories against the facts. That scholarship reminds us of the proposition by Karl Llewellyn to the effect that morals without technique is a mess, but technique without morals is a menace.

My final thought is to suggest that to carry out the tasks of the kind that I have mentioned, relating to both the general view of power and the more particular issue of monetary remedies for breaches of the Bill of Rights, as well as to the vast range of other matters on the Commission’s agenda, the Commission needs to rely on a very good mixture of people, process, and principle – both internally and externally. It is also important that the Commission, but also others, look to a fourth factor, the product. That is partly manifest in specific legislative measures and administrative changes. But it is to be seen even more in discovering different ways of understanding the law in its social, economic and political contexts, both within New Zealand and outside. This makes the systematic constitutional role of the Law Commission, which I have emphasised, all the more necessary in these changing times.