New Zealand Law Society - Sir Geoffrey Palmer Interview

Sir Geoffrey Palmer Interview

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Sir Geoffrey Palmer is “delighted” to have been President of the Law Commission, he says on the eve of stepping down.

That is especially the case “since I designed the original statute (establishing the Commission) and got it passed”.

For that reason, he has felt a “peculiar satisfaction” being the Commission’s President, a role he has filled for the last five years.

“I've had a wonderful time here. I've absolutely loved it. But I think it’s time for me to go,” Sir Geoffrey says.

The reason for that is that he considers much of New Zealand’s commercial law needs “a lot of attention and I wasn't the person to do that.”

His particular expertise is public law, and the Commission has made some significant achievements in public as well as criminal law under his leadership. Commercial law is not his area of expertise and was a major reason that he told the Minister of Justice in February 2010 that he had decided not to seek a further term as President.

The economic recession, Sir Geoffrey says, demonstrated some “fairly big holes” - for example in what happened to the finance companies and with the public money in relation to the finance companies.

“I think there were some regulatory holes and gaps of some importance that need to be filled if you're going to encourage investor confidence and I think that's a really vital role (for the Commission).”

There are some “enormous questions” about policy in that area – about who should be liable for what in relation to securities legislation, for example. “They are difficult and complex issues”.

When asked what were the highlights and key achievements of his five years as Law Commission President, Sir Geoffrey immediately began speaking about initiatives to get “traction” from the government on the Commission’s reports.

“When I took the Commission over it had been going 20 years and it had some conspicuous successes in that time.

“In the year 2000 I reviewed it for the government so I'd had the opportunity to study the Law Commission pretty closely and particularly its relationship with the executive government.

“The problem that I found in that review and the problem that was existing when I came here was that a lot of the reports were not being actioned by the Parliament.

They were being neglected.

“They were not actually being dealt with.

“The prime example of that was a very important report on the Property Law Act prepared by Peter Blanchard when he was a Commissioner here that had simply not been considered.

“I persuaded the Government to engage in a programme of reviewing the old Law Commission reports with a view to actioning them.”

The result of that initiative was that about 10 existing reports were actioned.

“And I think that was a very good thing. The Property Law Act was enacted and several others (including the) Wills Act and the Arbitration Amendment Act.

“Now the next thing that I did that was important was to change the procedure by which the government considered Law Commission reports so that the problem would not recur and I think we successfully did that.”

The Prime Minister had a function at the Commission’s offices and announced the new procedures.

There is now a Cabinet Office circular that does two things.

It sets out how references are to be given to the Commission. And it also sets out with some particularity what the government must do.

They cannot ignore a Law Commission report. They must respond to it.

One of the major reasons the Commission was not getting any traction on its reports was that it did not have sufficient engagement with government to have any influence.

“I think we fixed that, and we've done it without compromising our independence. That, I think was important,” Sir Geoffrey says.

Another initiative was suggesting that the relationship of the Legislation Advisory Committee and the Law Commission be closer.

Discussions were held with the Treasury, the Solicitor-General, the Department of the Prime Minister and Cabinet, and the Ministry of Justice on what might be done to improve the design of legislation.

That culminated in a cabinet paper to set up the Legislation Design Committee, chaired by the Law Commission President, to consider issues of legislative architecture at an early stage to avoid problems with legislation after it had been drafted.

“There was one other big thing and that is the work programme,” Sir Geoffrey says.

During his time at the Commission, it has had a “big and very significant” work programme. That includes work on the law related to privacy, with the Commission producing a number of volumes, “and the last one is just about finished”.

It is recommending that the tort of privacy should be continued but New Zealand needs a new surveillance statute that takes account of what people can do using new technologies.

Sir Geoffrey went on to list some of the work the Commission has done.

A complete “redoing” of the Land Transport Act, which he described as “very significant” was one project.

Another was the Commission’s work on search and surveillance.

One major project, which took the Commission 22 years, was its work on the limitation statute. This, Sir Geoffrey says, was a very “technical and difficult” but a very important piece of the law.

“We got a big reference to reform the sale of liquor. That was a big, big, important project and it took over two years.”

It involved 50 public meetings, and over 3,000 submissions were considered. It is, Sir Geoffrey says, “an important subject with a lot of social significance.”

Another important piece of work was on the Misuse of Drugs Act. The 1975 act is “old and out of date” and in need of review. “The final report will come early next year.”

The government at the moment was considering another report on war pensions. The war pensions system had been neglected since about the mid 1950s.

“We've got a massive project on at the moment relating to criminal procedure. We're doing reform of the whole law of criminal procedure with the Ministry of Justice. The legislation on that should be seen this year.”

The Commission has also undertaken a big project on the presentation of statute law. “That's been taken up and we have a bill in the Parliament,” Sir Geoffrey notes.

The Commission has advised on the Civil Procedure Act, leading to the Governor-General Act, reconstituting the pay and conditions for the office.

“We've got a final report to do on that which deals with MPs and their expense and Ministers and their expenses, which is not perhaps without controversy.

“I think that as you can see from the current work programme there's plenty on it.”

Despite having completed some “significant and important” projects, there have been “one or two” that haven’t succeeded. One example Sir Geoffrey quoted was the Waka Umanga project, which proposed law for Maori governance.

One thing that didn’t get picked up, either, was “the need for an index to the New Zealand statute book - a need which I believe still exists.”

Not only has Sir Geoffrey obviously enjoyed his five years as Law Commission President, he has also learned much, including things that help make the Commission very effective.

“I guess what I've learnt in five years is first of all there's no good in the Law Commission reaching such lofty heights of detachment that no one takes any notice of what it does and there's a risk of that sort.

“And I think the other thing is that you have to interact with the government on a fairly continuing basis to have any realistic appreciation of the problems of administration that they face with new legislation or new ideas or new policies.

“I guess I will also say that we're very fortunate here in having a very high calibre commissioners. We are able to get the best lawyers to take these positions and that certainly assists our output.”

After he steps down, the first thing Sir Geoffrey will be doing is completing an assignment as chair of an enquiry into the Gaza blockade for the United Nations.

He was in New York working on this for two months a little while ago and will return for three months immediately he finishes at the Commission.

“And that's a fairly formidable undertaking,” he says. “After that I will come back to New Zealand and write my memoirs.”

This was published in LawTalk 762, 15 November 2010.

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