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AUSTRALIA. ADVANTAGES OF LAW REFORM COMMISSIONS AS REVIEWERS OF THE CRIMINAL LAW

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Research capacity

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.
 

Economic factors

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.

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