Law Reform and the Law Commission in New Zealand after 20 Years – We Need to Try a Little Harder

Abstract

Everywhere law reform agencies face serious challenges. Even once law reform reports are produced, the issue of how to secure governmental legislative and official attention is a significant problem. This lecture attempts to shed some light on the real nature of the underlying issue and suggests possible methods for resolution. It begins by outlining the nature of the New Zealand Law Commission, the author’s approach to law reform and background in that field. It then sets out a set of observations on post-modern philosophical approaches to the law that pose obstacles for statutes and for law reform projects. It makes suggestions how to approach the problem of the design of statute law, the presentation of it and particularly its accessibility. It considers the relationship to delegated legislation and the problems which this field poses. Finally, it examines the under-developed fields of both pre-legislative and post-legislative scrutiny of legislation.

In experiences as an academic lawyer, law practitioner, and Member of Parliament, the author has reached the conclusion that law and properly structured legal institutions are important. But post-modernism has had, and will continue to have, an important effect on our legal institutions; post-modernists tend to believe there should be as little law and legislation as possible since they are sceptical that law can achieve anything. Such a theory undermines trust in the institutions of the law, its effectiveness and its legitimacy, and replaces philosophical underpinnings with a pragmatic, short-term approach.

The lecture considers accessibility of statute law and, comparing it to the American approach, finds the New Zealand statute book both massive and unmanageable. It uses the Iowa Code as a comparative example of how New Zealand statute law could be better indexed to create adequately accessible law. At the same time attention should be given to both statutory regulations and deemed regulations, so that it is apparent what delegated legislation has been made under the authority of the primary law. Greater effort should be made regarding what is appropriate for delegated legislation. In general, more effort is required in the initial design of legislation, its architecture and relationship with established laws. Post-legislative scrutiny should also ensure that stated objectives are met and that unexpected consequences have not arisen.

Keywords: law reform, statute law, accessibility, Iowa Code, comparative law, delegated legislation, legislative design

JEL Classification: K19