One of the challenges for any Law Commission is how to measure its performance. One proxy measure, while it has limitations, is the adoption of Commission recommendations by the Government. It is difficult, if not impossible, to establish with precision the implementation rate for Commission reports. The decision whether to implement a report, in whole or in part, is a matter for the Government and Parliament, and may be influenced by a wide range of factors, including other Government priorities. It can take a long time to implement some of the Commission’s recommendations, which also makes it difficult to measure the Commission’s “success” in any given year.
Nevertheless it is possible to get a reasonable picture of the overall pattern of implementation. The late Sir Grant Hammond, a former President of the Law Commission, surveyed the take-up rate of Law Commission recommendations in 12 representative Commission’s around the Commonwealth. In his article “The Utilisation of Law Commission Reports” (2016) 24 Waikato L. Rev. 97, he cited a take-up rate of around 70 per cent across those Commissions. In New Zealand, since the adoption of mandatory Cabinet responses post-2004 by the Cabinet Manual provisions, he indicated the take-up rate has risen to nearly 80 per cent.
Law Commission reports are also frequently referred to in the courts. Since July 2012 - when the Commission began tracking references to its publications in New Zealand High Court, Court of Appeal and Supreme Court judgments - 140 different Law Commission reports have been cited in at least 516 judgements.
Justice Asher, at his final sitting in the Court of Appeal on 7 March 2019, remarked:
“When the Law Commission has been involved in statutory change, its reports are generally key documents used in discerning legislative intent. As an aside, its commentaries on the existing law are often useful resources for lawyers and Judges.”
Sir Grant’s article noted that Law Commission reports are often relied on by the court when practitioners and busy judges want to understand why the law has assumed its present shape, and in cases where the court is faced with challenges to the existing law and suggestions it should be altered in some way.
Sir Grant concluded: “Whether the ultimate merit position taken up by the Commission on any given point is accepted is, as it should be, a matter for debate in our appellate courts and the legislature. But the Commission’s viewpoint has been looked to with respect.”