Courts get great assistance from Law Commission reports says the Hon Sir John McGrath, recently retired Judge of the Supreme Court.
In a presentation to Commission staff, Sir John said judges never have any doubt that Law Commission reports are well researched and politically neutral.
“The discussions in Law Commission reports are influenced by trying to get the best policy.”
Sir John talked to the Commission about his career in public service and the law. He focused his advice on how lawyers might best work with ministers, parliamentarians and public servants.
His career included time as Solicitor-General from 1989 to 1999, and serving as a judge, first of the Court of Appeal and then of the Supreme Court.
Sir John noted the different public sector expectations that went with each role.
Turning to medicine for a metaphor to describe the different nature of the two roles he said that he saw his time as the Solicitor General as similar to being an operating surgeon dealing with urgent cases as they arrived, whereas his role as a judge was more akin to that of a pathologist examining old corpses. The common feature was the complexity of the legal issues being addressed and the very interesting issues involved.
Referring to the help gained from extrinsic materials in interpreting legislation, Sir John compared Commission reports favourably to statements made by ministers and members of Parliament in the House of Representatives. He noted these statements often had political goals rather than outlining the purpose of the proposed new law. They did not always help courts to ascertain the meaning of particular passages in statutes.
Sometimes the law reform proposals in the Commission’s reports will not find immediate favour with ministers or public servants, Sir John said, but eventually the recommendations may come to be better appreciated.
It is important that agencies like the Law Commission heed the political context. The Commission must provide independent but workable proposals that take account of the political environment in which governments must work.
Sir John noted that, while the Commission is a law reform agency, it differs from other public sector advisory law organisations such as Crown Law. This is because of its extra layer of independence from the government, and because the Commission’s advice focuses on developing policy rather than applying the law.