The Devolution of the Law Commission

Malignant Cancers

Democracies in the West have degenerated into soft-despotic smothering administrative regimes. The State, with the consent of the people, has expanded its tentacles into every field of human action to rule, regulate, control and administer. It has vastly overreached its God-ordained powers.

When governments play-at-being-deities bad consequences always follow. One is that the law quickly becomes an ass--a tangled web of arcane, contradictory, costly, ineffective, outmoded rules and regulations that that quickly pass their use-by date. In an attempt to deal with the inevitably asinine character of the law under soft-despotic states the device of the Law Commission was created.

The fundamental objective of a Law Commission is to "clean up" and rationalise redundant and irrelevant laws. As Wikipedia has it:

A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring. Their functions include drafting revised versions of confusing laws, preparing consolidated versions of laws, making recommendations on updating outdated laws and making recommendations on repealing obsolete or spent laws.

All well and good. But the law of bureaucracies is that they are cancerous. That is, they grow and expand to where they take charge of their host governments and begin to control government itself. Law Commissions are no exception. The latest report on alcohol in New Zealand shows that the Law Commission has grown cancerous indeed.

Formed in 1986, it now employs 32 people, with an annual budget of $4.3m. It would argue that it is under-resourced (the complaint of all cancerous bureaucracies). It has a point--after all New Zealand is sinking in an ocean of laws and regulations, growing exponentially by the year. Sir Geoffrey Palmer, President of the Law Commission lamented in 2006

Massive amounts of law are made in New Zealand every year, of which primary legislation sometimes does not produce the greatest bulk. Today, New Zealand's primary laws comprise nearly 1100 statutes; 1096 to be precise. We had only 600 principal Acts in 1978. Under the authority of today's Acts there are 4292 instruments published in the statutory regulations series. There exist also, according to the Parliamentary Counsel Office website, 273 sets of "deemed regulations"; this last number, the site warns us, may be incomplete.

How many pages of law this amounts to I cannot say because it is too big a job to count. The largest statute we have – the Income Tax Act 2004 – covers 2088 pages and takes three volumes of the 2004 statutes. There were seven volumes that year. This proliferation of forms of lawmaking poses problems in itself. But it also poses significant problems for the system of government as a whole. It makes it much more difficult ever to see the body of law as a whole.

One would have thought there is so much helpful work the Law Commission could do in recommending rationalisations and repeals of legal irrationalities, redundancies, contradictions, and blind alleys. But the Labour Government in August 2008 decided to focus the Commission's attention upon the Sale of Liquor Act. This was something the Commission ought to have tried its utmost to avoid, but under President Palmer it could not help itself. It not only welcomed the Government's stipulation, but decided to conduct a "root and branch" review of alcohol in New Zealand. President Palmer also indicated that he had a personal interest in this matter, and that he would ensure that Commission pursued its task with vigour. It turns out he was not dissembling.

Now, consider the brief that the Law Commission was given included the following in the Terms of Reference:

To consider and formulate for the consideration of Government and Parliament a revised policy framework covering the principles that should regulate the sale, supply and consumption of liquor in New Zealand having regard to present and future social conditions and needs.

Question: since when is it the statutory duty and function of the Law Commission to have regard for the "present and future social conditions and needs" of New Zealand and New Zealanders? According to the Commission's website, the objectives of the Commission are:

to improve:
• the content of the law
• the law-making process
• the administration of the law
• access to justice
• dispute resolution between individuals
• dispute resolution between individuals and the State.

It would seem to us that the Commission's role is expanding way beyond the intent of the original act setting it up. Now, we probably cannot simply blame the progressive philosophies and proclivities of President Palmer. It will also be the fault of the (then Labour) Government. But a malignant cancer upon the body politic the Law Commission has undoubtedly become.

So now New Zealand has the benefit of a 500 page monstrosity reviewing one piece of legislation--a review that has taken the Commission into issues of future public policy and social needs of New Zealand. It aspires to regulate exhaustively alcohol in every sphere of human and national life. The "scope creep" of the Commission will consign it to ineffectiveness; it has simply become one more engine for the rampant proliferation of soft-despotic laws, rules and regulations.

As one blogger put it--the nanny state has come back with a vengeance. The Law Commission has now moved from amelioration of administrative constipation to compounding the problem many times over. Under President Palmer it has become a sad case of "if you cannot beat them, join them". But, more malignantly, the Law Commission is yet another example of a cancerous bureaucracy taking over.