Busy Week for Law Reform Commissions

I confess: I love law reform commission reports. I find they are wonderful sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded.

In the past few days, by pure coincidence, I have come across a wealth of new reports by law commissions in New Zealand, Ireland and Australia:

  • New Zealand Law Reform Commission Introductory Issues Paper on Law of Trusts : this is primarily a background paper. It traces the development of the trust from its origins in medieval England through to the present day uses of the trust both in New Zealand and internationally. It also examines the key features of the trust with a view to finding a working definition that might possibly serve as a statutory definition for a new Trustee Act or possibly a Trusts Act and takes a look at comparable overseas legislation.
  • Law Reform Commission of Ireland Report on Alternative Dispute Resolution: The Report notes that mediation and conciliation are increasingly being used to try to reach mutually acceptable settlements of civil and commercial cases. These include: big commercial and small consumer claims, employment disputes, family breakdown, medical claims and property disputes. In 2006, The Dubliners reached a mediated settlement with their record label EMI over royalty payments. Earlier this year, when U2’s bass guitarist Adam Clayton obtained a temporary High Court injunction against his former personal assistant, it was stated that her employment contract had a mediation clause, which could allow her to postpone or stop (‘stay’) any court proceedings. The report recommends that the key principles of mediation and conciliation should be set out, including: they are voluntary processes; the parties control them; confidentiality of the processes is required; and their quality must be assured by clearly stated standards. The report also calls on the Government to make an ‘ADR pledge,’ under which Government Departments and State bodies would be required to consider and attempt mediation or conciliation in appropriate cases before initiating court proceedings
  • Law Reform Commission of Ireland Report on the Consolidation and Reform of the Courts Acts: The Commission’s Report recommends that the existing Courts Acts should be consolidated into a single Courts (Consolidation and Reform) Act. The Courts Acts comprise 240 Acts in all, 146 of which precede the foundation of the State in 1922. Over 100 of these are from the 19th Century, and some even date back to the 13th Century, such as the Sheriffs Act 1215 (wow!). The Commission recommends that 192 of the 240 Acts should be repealed entirely and replaced by the draft Courts (Consolidation and Reform) Bill which the Commission is publishing with the Report. The draft Bill also implements a number of significant reforms which the Commission recommends in the Report, and these are intended to enhance the effectiveness of the administration of justice in the courts. As well as replacing almost 200 Courts Acts with a single Act and making wide-ranging reforms, the draft Courts (Consolidation and Reform) Bill would reduce down to 359 sections over 1,500 sections from the existing Courts Acts. This would make the law in this vital area for Irish society accessible, modern and with a focus on enhancing the effectiveness and efficiency of the court system.
  • Australian Law Reform Commission Consultation Paper on Discovery: [from the press release] “The 2009 Access to Justice Taskforce report—established by the Commonwealth Attorney-General’s Department, which recommended that the ALRC conduct this Inquiry—noted that the high and disproportionate cost of discovery can impose a barrier to justice in court based dispute resolution. While the truth-seeking purposes of discovery may promote fairness in litigation, the commercial realities of contemporary discovery practice and procedure may threaten the very same fairness and justice sought to be achieved. ALRC President Professor Rosalind Croucher said ‘A particular feature of contemporary litigation is the massive exponential growth and storage of documents in the electronic age. Discovery can be an important process in litigation to avoid trial by ambush, but the vast amount of electronically-stored information which litigants might be required to disclose can lead to trial by avalanche. The impact of information and communication technologies can also exacerbate the inherent tension between the party requesting discovery—seeking to ascertain facts material to the case; and the party giving discovery—bearing the burden of retrieving, reviewing and disclosing documents in response to discovery requests. The task in this Inquiry is to develop proposals and ultimately, recommendations for reform that balances these tensions fairly and practically’.”
  • Australian Law Reform Commission Final Report on Family Violence: An interesting document that examines how another federal system handles the question The main thrust is the need to end legislative and policy fragmentation of the issue because of overlapping Commonwealth, state and territorial jurisdiction. The report calls for the adoption of a common interpretative framework in relation to family violence across state and territory family violence legislation, the Family Law Act and the criminal law. This involves: establishing a shared understanding of what constitutes family violence across these legislative schemes; and of the nature, features and dynamics of family violence.

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