18
commissions only looking at black letter law. I have elsewhere suggested that while
that is an interesting position to advocate, no-one has ever satisfactorily defined what is
black letter. Things which seem most formal and arid can still have social and
economic consequences. Those who are closest to the use and operation of a part of the
law are not the only people who have a constructive slant or a rational view upon it.
Reform should not be left in total capture by the insiders.
I have a personal predilection that the operation needs to be totally open. No surprises
and a complete sharing of information throughout the reference. I dont know what life
is like in other capitals around the world, but I have to say that Wellington, New
Zealand, finds that a somewhat extraordinary concept to cope with. Public servants
particularly (and if I am being honest I would have to say Judges also) often seem to
have difficulty in engaging in open-ended dialogues. They are very keen to learn what
you are thinking in advance, but less keen to place their own cards on the table.
Those who are employed to service and advise politicians may be, or feel, constrained.
When I look back to my early days as a practitioner, close to the chest is how we ran
litigation in Courts. Many of the most skilled advocates were those who kept the
greatest number of rabbits in hats with which they could surprise and steal a march.
I suggest in both areas times have changed and that the best outcomes will flow from
totally open and unrestrained sharing of ideas and possibilities as work in progress.
In the Courts in my country, through case management and better planning, litigation by
ambush has gone but the influence of that former approach I still see as being alive and
well. If in seeking to simplify and improve and rationalise the law, there should be no
hidden agenda. A Law Commission simply wants to identify the best outcome. I can
see no reason to hold anything back. I encourage my fellow Commissioners and
research staff to share ideas with all who have something to contribute throughout our
processes. We need to tell people that what we are discussing is work in progress and