9
implementation in every law commission state.9 The issue is how to secure
governmental legislative and official attention once law reform reports are
produced. Justice Kirby has said: Nowhere has this issue been tackled
institutionally and effectively. He points out that all too often law reform
proposals go to the bottom of the ministerial and legislative pile, where they
secure less attention than the political ideas and personality and party schemes
that dominate contemporary politics. His conclusion makes sombre reading:10
In terms of this logjam in our institutions, we are certainly not there. In my
view, we are not even on the way to there. We are no closer to there than we
were 30 years ago when I began my work with law reform agencies. No one is
there. There seems to be an illusion. Sometimes we think we see it. Thus, law
reformers cultivate officials and look for the triggers of activation that will gain
an advocate in Cabinet who will initiate official consideration and action on a law
reform report. But it seems amazing that our constitutional government should be
so dependent on chance factors of that kind. If it could be explained by
controversy and difficulty, the impediment would be more understandable and
tolerable.
The First Priority
22
It is for these reasons that on becoming President of the New Zealand Law
Commission my first priority was to make representations to the Government
about projects completed by the Commission but upon which no governmental
decision had been taken. In my view the 2005 election has produced a political
situation ideal for law reform. The Government is in its third term and the
legislation relating to most of its big ticket political programme has been dealt
with.
23
I went through the Commissions reports that hadnt been dealt with. In particular
I was struck by the Rt Hon Justice Blanchards report produced, when he was a
Law Commissioner in 1994, on Property Law Reform. That was a reform that
will make the law a lot cleaner, more certain and modern. Yet nothing had been
done with it. It had not been rejected, it just had not been considered. This is not
9
Justice David Baragwanath The Role of the New Zealand Law Commission (New Zealand Centre
for Public Law, Occasional Paper 2, Wellington, 2001) 7.
10
Michael Kirby Are We There Yet? in Brian Opeskin and David Weisbrot above n 2, 433, 445.