91
344. Mr B J Cameron, in an article in the New Zealand Law Journal in 1988,
summed up the essence of law reform in a manner that cannot be improved by
the evaluator. He said:65
Law cannot be divorced from politics. The common origin of the words politics
and policies is reflected in the reality. Worthwhile law reform is therefore
political. That does not mean it needs to be party political. Sometimes it may be,
but if this happened more than rarely with law reform commissions reports, it
would be a serious danger signal. But except for the most limited kind of
lawyers law and that is hardly the stuff of law reform these days policy issues
are involved in the proposals for legal change that law reform commissions
consider. Likewise a substantial proportion of law reform measures are likely to
arouse opposition on economic or social or moral grounds. Certainly this is true
in New Zealand.
345. Mr Cameron went on to say in that article that law reform will not succeed,
however good the machinery, unless there is a Minister well disposed towards
reform and with enough weight in Cabinet to get his or her proposals accepted.
346. The Law Commissions proposals must take their place in the legislative queue
and be assessed by the Government of the day in terms of its own priorities.
347. The Law Commission has independence. This is a valuable commodity in
carrying out its responsibilities under the Law Commission Act. By way of
example, Justice Sir Kenneth Keith told the evaluator that the Law Commission
is able to on occasion gain consensus during its consultative procedures that
could never be achieved if the Law Commission were perceived to be within the
formal Government and parliamentary system.
348. The Commissions independence is also essential to securing high quality
Commissioners and giving them standing in the policy-making community. But
the Commissioners occupy a very different position from the public servants.
While they must take into account the Minister of Justices priorities, they are
not bound by them as the public servants are.
349. However, there is a real dilemma in the independence of the Law Commission.
The Law Commission can exercise its independence, but it may not be very
effective in influencing Government to adopt its proposals. Indeed, the more
independently the Commission behaves, the less likely it is to influence the
65
Allies of a Kind : The Politics of Law Reform [1988] NZLJ 18.