There is no single procedure the Law Reform Commission uses in undertaking law reform projects. However, the Commission usually works within a particular framework when it develops recommendations for reform. The exact procedure needs to be tailored to suit each topic. Each new project is called a "reference".
Here is an outline of the typical approach the Law Reform Commission takes to a reference:
Starting the law reform process
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The Attorney General writes to the Commission asking it to inquire into and report on the need for reform of the law on a particular topic. This written request is called the "Terms of Reference".
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References are given for various reasons, including:
- the Government is concerned about the subject matter,
- recent events or legal cases have highlighted a problem with the law ,
- scientific or technological development have made it necessary to overhaul the law or think about creating new laws.
Sometimes the Law Reform Commission will suggest a topic for a reference based on its research or comments from the public.
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The Chairperson appoints Commissioners to take responsibility for the reference and the Executive Director allocates research staff. Sometimes the Commission will engage consultants (lawyers and other experts) to assist with the refrence. The group of Commissioners appointed by the Chairperson is referred to as a "Division".
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Working out the issues and problems and involving the community
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A research and publication plan is prepared setting out the timeframes for the review and the methods for public consultations.
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The Division and research staff will undertake some preliminary research into the reference and publicise in the community that the review is taking place. Preliminary consultations will be carried out.
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The preliminary research and consultation phase includes:
- consulting people and organisations with a special interest in the reference,
- publicising the inquiry in the media, and
- identifying defects in the law, and existing proposals for reform, finding relevant law in other States or overseas.
Consultation Papers
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The Commission prepares one or more Consultation Papers and/or a Research Report about the reference explaining all the issues and suggestions for reform. The public is invited to write submissions to the Commission.
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Issuing publications is the major method by which the Commission seeks to involve the public in the process of law reform. These papers discuss the issues and options for reform and seek comments on proposals for change. The number and content of such publications depends on the needs of each reference.
Consultation papers take a preliminary look at issues and principles which could guide proposals for reform and may sometimes be quite detailed with explanations of the legal problems, discussions of options for reform, and tentative proposals.
Research reports contain results of research conducted or commissioned by the Law Reform Commission. These provide objective evidence useful for understanding the problems or evaluating solutions.
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The Commission publicises the release of any Consultation Papers and/or Research Reports in the media and elsewhere to make sure that the community is aware of the reference and can comment.
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Copies of publications are distributed widely to lawyers, academics, organisations, individuals and the media. They are also made available on the Commission’s website. Click here to see the current publications of the Law Reform Commission. Publications (excluding Reports) are free during a reference's consultation period. Sometimes more than 1,000 copies of a paper will be sent out.
The Law Reform Commission tries to publicise its references as much as possible. Media releases are issued, and copies of all papers are made available. Commissioners and staff appear on radio and television, give interviews to journalists and write articles about the work of the Law Reform Commission.
Getting input and ideas from the community
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The Commission receives and analyses submissions.
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Any contribution to a reference is called a submission. Anyone is welcome to make a submission. Submissions can contain comments on matters raised in an issues or discussion paper, or can discuss anything relevant to the topic under review.
Usually submissions are written. There is no set form and a simple letter will do. It can be oral, such as a phone call, private discussion or speaking at a public hearing. The Law Reform Commission tries to make it easy for members of the public to contribute to reform of the law.
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The Commission conducts public consultations.
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Public consultation is a distinctive feature of a law reform commission's methodology. Some examples of consultation methods used in recent years include:
- a phone-in on people's experiences of the way anti-discrimination laws work in New South Wales;
- public meetings held around New South Wales to find out how people have been affected by adoption information access laws;
- a phone-in for people to discuss problems which arise with neighbouring landowners;
- meetings for people with an intellectual disability to tell in their own words their experiences of the criminal justice system and ideas for change;
- public opinion surveys conducted by independent social researchers on the impact of adoption information laws; and
- participation in talk-back radio interviews.
The Commission is not bound to accept the views presented in public consultation. Naturally there are many differing, often conflicting, views advanced. However, the Commission considers all opinions before recommendations are settled.
The Commission released (in February 2000) an evaluation of its consultation processes in the review of the Disability Services Act 1993 (NSW) and the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW). A copy of the Evaluation of the NSW Law Reform Commission's consultation processes in the review of the DSA and CAMA (February 2000) may be viewed on this website.
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The Commission undertakes further research and analysis of the issues, which includes looking at similar laws inter-State and overseas.
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The Division considers submissions received from the public and research done by staff and consultants. They determine what the recommendations for reform will be. If they do not all agree, the report will include dissenting recommendations and reasons.
Reporting recommendations
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After completion of its research and public consultations, the Commission releases a Report that contains the Commission's recommendations for reform.
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The Commission's report to the Attorney General contains all the recommendations for reform and explains the Commission's reasons for making them. If appropriate, a report contains draft legislation which the Government can adopt if it accepts the recommendations.
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The Attorney General tables the Report in parliament.
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There is no guarantee that the Government will accept the Commission's advice and implement the recommendations in a report. Some reports are implemented several years after they have been completed.
Other catalysts for change
A major function of Parliament is to introduce new legislation or amend existing statutes. It happens so often that lawyers have trouble keeping up with changes to the law. Where do these changes come from? As well as law reform commissions, there are many other organisations which put forward proposals for law reform.
Government policies
Every government Minister has the job of introducing legislation about matters that fall within his or her portfolio. Members have responsibility for implementing their party's political platform. This type of legislation is generally prepared by the relevant government department.
Parliamentary committees
Every parliament has several committees where members of parliament from all parties investigate matters and make suggestions for changes to the law. A report that has support from all sides of politics will often be implemented readily. Any member of parliament is entitled to introduce a private member's bill.
Ad hoc committees
A Minister can appoint an ad hoc committee of experts to investigate a particular matter and advise on how the law in that area should be reformed. Such committees use many of the techniques of a law reform commission to consult with the community on what the law should be, but have only a limited responsibility. Royal Commissions often recommend reform of the law in their reports.
Permanent advisory bodies
There are a number of bodies established by governments which have an ongoing responsibility to monitor the operation of, and propose reform to the law in, a particular area. In the federal sphere these include the Australian Institute of Criminology, the Family Law Council, the Administrative Review Council, the Copyright Law Review Committee, and the Companies and Securities Advisory Committee. In New South Wales there are the Bureau of Crime Statistics and Research, the Anti-Discrimination Board and the Youth Advisory Council.
Independent authorities
Some independent bodies have the responsibility of investigating the activities of private citizens and government officials which can also advise the Government about law reform. The Independent Commission Against Corruption in New South Wales, the federal National Crime Authority, and in Queensland the Criminal Justice Commission all regularly advise their Governments on how the law could be improved as a result of their investigations.
Professional associations
The Law Society of New South Wales and the Bar Association represent the majority of lawyers in New South Wales. These professional associations regularly suggest amendments to the laws in New South Wales, both in relation to their profession and more generally.
