Live Post on Michael Tilbury’s Public Lecture “Win-Win”

Patricia told us this morning about the LCO’s dialogue about law reform, through Wednesday’s symposium.

This is a live post on Michael Tilbury’s Public Lecture entitled “Win-Win” or “Who Will Rid Me of this Turbulent Priest?” The Relationship between Law Reform Commissions and Governments

Michael Tilbury is the Commissioner with the New South Wales Law Reform Commission.

The Chief Justice of Ontario, the Honourable Warren Winkler started by asking what he thought was the fundamental question “why do we need an independent law reform commission?” Exempting Dean Harry Arthurs from a generalization, he said that when he was in law school, changing the law was seen as judges’ work. But today the policy process did need law reform commissions. Why? Because it can challenge the status quo. The recommendations are not self-ordained. Arms-length work of LCO is essential.

Michael Tilbury started by asking “Why would Canadians want to hear about law reform from Australians?” His talk illustrated the way in which Australian bodies have found a necessary and comfortable place in the machinery of public policy development.

He talked about a speech in which Justice Michael Kirby had spoken in 1976 to the Uniform Law Conference of Canada. This referred back to 1965 English Law Commission model. It continues to inform the Australian experience – which he contrasted with the Canadian approach.

Canadian law reform has failed from a critical perspective – scholarship in Canada judges law reform differently

What is real legal reform?

Why does institutional law reform look so different in Australia?

Because of a practical engagement in the policy process. In practice law reform commissions interact all the time with government. NSW has an exclusive reference based agenda / mandate

More turbulent relationship in Canada

1991 LRCC abolished

1996 OLRC abolished

2006 – defunding of LCC

Australia now solid in its commitment to law reform

Victoria now has law reform agency on Alberta model

South Australia opposition – state legislature is the vehicle for law reform

Classical model is premised on independence from government

Advice to government on legal policy.

Common interest in how policy is formed in legal sphere

Three characteristics for successful commissions

Access to expertise

Australian Law Reform Commission 2001 – 2003 Human genetic information (like a permanent Royal Commission)

Expertise often given on a voluntary basis

Consultative process

Feature of Australian system since 1983

Kirby pointed to LRCC back in 1976

Take law beyond lawyers to go to the community

Community consultation process

Australian Law Reform Commission 2008 Consultation on Privacy

Mental illness inquiry

Have databases of community groups for consultation

Community law reform programme does primary investigation of a topic to see whether it was worthwhile for a reference

Get ideas from public, professional organizations and the antennae of research officers

Controversial nature of references

Don’t limit the work to black-letter law

Intersection of law and social policy

Three reasons why the relationship can turn sour

Poor management of policy process

Delay in process

Flawless understanding of black-letter law is needed

Time and resource intensive

Factor is always under-estimated

Mistake in referring a matter to the Commission if it already has a policy position

Duplicative work

Ideological opposition

Neo-liberal opposition

Commissions tend towards classic liberal values

South Australian opposition to leaving criminal law reform to the lawyers

Expense

Lack of productivity

Closeness to a defeated government

Government ignoring or changing the Reports

Law reform commissions have common interest in utility to government

Critical Canadian literature

Issues of social justice

Rod Macdonald – don’t prefer legislation which privileges lawyers

Importance of adequate funding for all commissions

Slaw readers can find out more about law reform in Canada here. And here courtesy of my BlackBerry is what it all looked like.

Michael Tilbury's talk