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Journal of South Pacific Law |
LAW REFORM IN THE SOUTH PACIFIC
PETER MACFARLANE* AND CHAITANYA LAKS*
INTRODUCTION
Modernisation of the law is a fundamental operational principle for law reform.he Pacific constitutions need to be looked at in this connection, in part to check on the pthe progressive development of particular constitutional provisions like those relating to the electorate and to human rights. The d for improved provisiovisions for the better expression and protection of human rights has been raised from time to time on a Pacific-wide basis, and will contio be raised. It is a matter thals for afor attention,tion, clearly with the most careful regard to the cultural sensitivities and traditional nature of Pacific societies, but also with regard to the fact that the Pacific is one of those few areas of the world not yet governed by an international or regional framework, instrument or arrangement on human and cultural rights. [1]
For a long time now, law reform has been one of those “catch-cries” going hand in hand with “good governance” and “transparency” and yet, apart from the work being done by the Fiji and Papua New Guinea Law Reform Commissions, there is little commitment to law reform by South Pacific states. The purof this article is e is to outline the work of law reform agencies, demonstrate how the legitimacy of law and good governance can be enhanced by having an activ reform commission and to suggest that consideration be give given to a regional, South Pacific Law Reform Commission. Law refo generally definedfined as the systemic development of the law, with a view to simplifying, modernizing and consolidating the la finding more effective methods for the administration of the law so as to improve access tess to justice.[2]
THE NEED FOR LAW REFORM COMMISSIONS
There are a number of reasons that justify the formation and work of law reform commissions. The first is these commissmmissions or agencies can assist in the removal of anachronisms, anomalies and inconsistencies in the law. This is task that the coue courts generally embrace. Although it is trat one sone sometimes sees in a judgment a reference to a need for a change in the law or a suggestion that government should correct an anomaly or inconsistencthe law, the role of the courts is not to get involved in t in the doing of law reform in any systematic way. The role of the courts is to decide cases according to existing law and this leaves little room for a decision based on what the law ought to be. Law reform is the role of governments; however the fact is that governments generally do not have the time or (in most cases) the expertise or in some cases the political will to engage in this work.
This leads us to the second reason for having law reform commissions, namely that they assist in the development of new approaches to the law in response to changing social, economic and political circumstances. Governments are often slow to respond (if they do so at all) to issues that impact directly on the social and/or cultural traditions of a people. There areotes in tackling ling unpopular social issues. In Australia this was aptly demonstrated in the last (2004) federal elections where abortion was taken off the election agenda because of its div nature so far as the publipublic is concerned and the fact that it would likely alienate a large number of voters. This is not to say that the law concerning abortion in the South Pacific is necessarily in need of reform; however it is a potent example of what we mean.
Less conrsial but but nevertheless important issues that could be the subject of inquiry by a law reform commission in the South Pacific include the assessment of damages for women in cases of wrongful death,[3] the treatment of the mentally ill, laws concerning family protection, the relationship between custom and introduced law, the taking of evidence from children especially in relation to sexual offences or offences of violence, social issues such as HIV/AIDS and how the law should respond in terms of testing, confidentiality and other health matters.[4] However if governments do not address these issues and if there is no law reform agency in place then they will likely remain un-addressed despite the paiffering, hardship and prejudice they may cause to those who may be affected.
>
Apart this, tis, the fact is that in times of rapid change, legislatures are unable to give detailed consideration to many important issues due to a lack of expertisa political timetable which does not allow for an independependent, detached and consultative approach to the issues. Law reformissions provide vide this expert and independent advice based on consultation (inclusiveness) and legal principles and can makemmendations based on best practice rather than on political expediency. This is the reason ason why law reform agencies or commissions should not be attached to State Law offices or Attorneys General offices. Their recommendations must come from an expert and independent assessment of the law based on relevant policy considerations and informed by wide consultation. Only in this way can they be of assistance to government and hold the confidence of the people.
From Alia to ZambiZambia most of the jurisdictions of the Commonwealth of Nations have established Law Reform agencies of some kind, to help lawmakers with the reformernization and simplification of the law.[5]
>The capacity of a law reform commission to engage in wide public debate and consultation is an important aspect of their work.
Law Reform Commissions have long recognized the need to conduct both wide and targeted consultation to maximize participation in law reform by members of the community.[6]
As noted by Atkinson, public consultations and meetings serve two important purposes; to provide members of the public with an opportunity to raise concerns and express their views and to enable the Commission to perform an educational role.
It is the authors’ view that law reform agencies contribute to the strengthening of good governance and legitimacy by engaging communities in public debate over important social, legal, economic and political concerns and by recommending to legislatures areas of law that impede good governance and/or which are inequitable, discriminatory or otherwise in need of reform.
THE EXISTENCE OF LAW REFORM COMMISSIONS IN THE SOUTH PACIFIC
In the South Pacific, law reform agencies have been established in Papua New Guinea, Samoa, Fiji, Vanuatu and the Solomon Islands.
In Vanuatu aw Commission hion has never been constituted. In Samoa a Commi was estabestablished in 2002 but has never been formalized.
InSolomon Islands tw ReforReform Commission is reported to have been inactivective since the departure of its first chairman over
five years ago.[7]
s and functions of Law Reform Commissions in the South Pacific The duties and fand functions of the Law Reform CommissionFiji,[8] Solomon Islands[9] and PapuaPapua New Guinea[10] are to take and keep under review all the laws applicable with the view to its systematic development and reform, including: • &<; t60 codefication ofon of such laws; Timarytion[11] of the Commission in Vanuatu uatu is to review the laws of Vanuatu to r to remove anachronisms and anomalies. Theission unding a
review of t of the lahe laws isws is required to reflect in its laws the law of the distinctive concepts of custom, the common and
civil law legal systems, the reconciliation where appropriate of differences in those concepts[12] and the development of new approaches to and new concepts of the law in keeping with and responsive to the changing needs of the
Vanuatu society, of groups within that society and of individual members of that society.[13] In Samoa the Law Reform Commission Act 2002[14] requires the Commission to act upon references from the Minister for Justice; to research and analyse areas of laws, recommend to
the Minister programs for the reforms of the laws, and to consult with and advise the public about its work. Structures and constitutions of Law Reform Commissions in the Pacific In Fiji, the Commission consists of a Chairman[15] who is appointed for a period not exceeding four years[16] by the President on the advice of the Prime Minister in consultation the Leader of Opposition. A person is only qualified for appointment
as a Chairman if he or she is qualified to be appointed as a Judge of the High Court of Fiji.[17] The other members of the Commission (not less than three Commissioners) are appointed for a period not exceeding three years by the
Attorney General. Tecutive Officer of the Cohe Commission is the Director who is legally qualified and is appointed by the Judicial
and Legal Serviommission.[18] In Papua New Guinea, the Law Reform Commission consists osts of seven citizens[19] who are appointed by the Minister for Justice by notice in the National Gazette. The Minister appoints one of the seven members as
the Chairman,[20] while the Deputy Chairman is elected or appointed by the members of the Commission. The tenure of office for the members is four
years[21] and they all are eligible for reappointment. A Judge[22] or a Magistrate can also be appointed to the PNG Law Reform Commission. The Executive Officer of the Commission is the Secretary[23] who is appointed by the Head of State, for a period not exceeding four years. The Law Reform Commission in Solomon Islands is constituted a Chairman[24] and four other Commissioners.[25]The Minister for Justice appoints the Commissioners for a period of four[26] years on a part-time basis while the Chairman is appointed by the Judicial and Legal Services Commission on the recommendation of
the Minister. The Chairman, whose term of office is for five years, must be a person who has been qualified to practice as a Barrister
or Solicitor in any country in the Commonwealth for over five years.[27] In appointing the Commissioners the Minister is required to appoint such persons who appear to him to have knowledge and interest
in the following areas;[28] (a) social welfare and religious affairs, (b) criminal administration, or (c) sociology, anthropology or Solomon Islands culture.
The Executive Officer of the Commission is the Secretary who is appointed by the Public Service Commission. The Commission in Samoa consists of a Law Reform Commissioner[29] who is the Chief Executive of the Commission.[30] The Law Reform Commissioner is appointed by the Executive on the advice of the Law Reform Appointment Council. The Commissioner must
be a person who holds a recognised law degree, have at least eight years experience as a barrister and Solicitor, have personal and
professional qualities for eligibility for appointment to judicial office and meets any further skill and character requirements
prescribed by the Executive Council on the advice of the Law Reform Appointment Council.[31] The Commissioner’s term is for five years[32] and before any appointment or reappointment is made the position is required to be advertised.[33] In Vanuatu, the Law Commission consists of a Chairman and four other Members who are appointed by the Minister responsible for Justice.[34] The members of the Commission must have at least one Member who is entitled to practise as a legal practitioner in Vanuatu and not
more than two members may be public officers.[35] The term of the Members of the Commission is for a period not more than three years.[36] THE POSSIBLE ESTABLISHMENT OF A SOUTH PACIFIC LAW REFORM COMMISSION There are three reasons that commend consideration of the establishment of a regional law reform agency. The first concerns financds
and resources. It isrstandable thle that without outside funding the establishment and support of the work of sgencies in each jurisdiction imposes
a difficult financial burden on governments. In ; In terms of pties, a s, a law reform commission is probably ranked at the lower
end of the scale. In times onomic pressure aure and the increasing need to deliver esse services to the people, there is little
incentive for gove governments to allocate resources to a law reform commission. It iser tothe money into snto scto schools or roads.
By establishing a rel law law reform commission these costs can be shared amonber countries, in much the same way that the financial
responsibility of the University of y of the South Pacific (USP) is shared betmember nations. In this ways way all jurisdictions
get the benefits that come from an active law reform agency without having to be responsible for all the costs and overheads.[37] Indeed this is something that could be put under the umbrella of the Pacific Islands Forum as part of its (and donor nations) commitment
to good governance, law reform and support for the admration of justice. Such an appris consistent tent witt with the regional view
taken by the Forum towards economic, trade, environmental and other matters. The second reason for a regional commission is that there are only limited expertise in the region. Law reform commissions re uire
people who have expertise in law, the social sciences and economics. They also need to le to ento engage in consultation with professional
and government bodies and with the general public and have a broad understanof regional issues. By combininsting South Pach Pacific
law reform agencies (apart frrt from existing Australian and New Zealand Commissions) and by encouraging participation by those from
the USP with skills in relevant areas, it is suggested that an expert group of part time members could be assembled who could provide
independent advice as well as draft legislation for governments. The pro-active nature of such an agency in terms of community consultation
would also add a sense of community involvement in law making and law reform. The third reason for a regional agency is simply that most of the issues in need of consideration by South Pacific law reform commissions
are issues that are common across the region. Tseems little point in onen one commission looking at the relationship between custom
and introduced law when other commissions have carried out the same task.&#In much the same way, for example, the work of one agency
cncy concerning HIV/AIDS in relation to reporting and confidentiality would be of direct relevance to other regional jurisdictions.
O the strengths of the Pace Pacific lies in the capacity of member states to adopt a regional approach to issues. A legie question oion of course would be the position of the currand active) Fiji and PNG LaNG Law Reform Commissions. The view of
the writers is that the Fiji Law Reform Commission should be broadeo form the South Pacific Laic Law Reform Commission. It could,
he time being, bng, be based in Suva, with offices in each of the regional (member) jurisdictions. This is not to say that it would
always have its head office in Suva and as member countries e more committed to the shae sharing of resources, individual governments
might apply to have the head office moved to their own jurisdiction for a time. Membership would be contingent upon a government
commitment to assist in funding. It is suggested thah partiparticipating jurisdiction has one full time member but that the Commission
has power to appoint other persons as part timbers for the purposes of a particular reference. References woome to the Cohe Commisommission
via the Attorneys-General of each member country. In time the PNG Law Reform Commission might wish to merge with this wider law reform
agency. Apart fro matters mentioned above itve it is considered by the authors that a regional approach to law reform would strengthen the
region’s capacity for cooperation and uniformity of laws within the region. This is seen as prog and sand strengthening not
only economic relationships within the region but also cultural and traditional relationships. This need for a more regional ach
was reflected in a recent address by Justice H.E Tuilomuiloma Neroni Slade to the Australasian Law Reform Agencies Conference: As between island States themselves there does not appear to be any organized arrangement for regular contact among personnel or for
the exchange of information. In view of the significaw law reform activities that goes (sic) on in the region ... the observation
to be made is whether some organized system for the better spread and sharing of information among the law reform rities of the Pacific
as a as a region might be in order.[38] His Honour went on to note that there are significant activities that would be impossible for one country to manage alone and which
would need to be carried out ‘on the basis of the active partnership and collaboration that exists in the Forum structure of
the region.’[39] The authors suggest that this can best be achieved by a single South Pacific Law Reform Commission and we encourage debate of this
issue. ** ChaitLakshman is a Barrister and Solicitor of the High Court of Fiji and a Project Fellow at thet the Institute of Justice and
Applied Legal Studies (IJALS) at the University of the South Pacific. Upon completing his LLB in 1997, he briefly worked at the Fiji
Law Reform Commission. <1]
• the eliminati n ofalnom;
•#8226; ;ټ <  re60 redu of ste enactments;
• &1600;#160; & th0;maki g of new laws;
• &##160; &ـ thplithplificaifination,tion, improvement; and
•
;d midernonation of the laws.laws.
[*] Peter MacFarlane is an Associate Professor in the School of Law at the University of the South Pacific. Prior to takp this appointpointment
he spent two years as full time Law Reform Commissioner for the State of Queensland. This article rittele he wahe was adjunct Professor
in the School of Foreign Service at Georgetown Univerniversity, Washington DC.
[2] See the Law Reform Commission Act 1972 (WA) s 11(4) and the Australian Law Reform Commission Act 1996 (Cth) s 21(1(a)(v).
[3] Currently, at common law, the likelihood of the women remarrying is a matter to be taken into account when assessing her damages for the wrongful death of her husband. Some have argued that this is harsh and unfair. See for example ueensland land Law Reform Commission Report: ‘Damages in an action for a wrongful death: The effect of entering or of the prospect of ente entering into, a financially supportive cohabitation relationship, and the effect of the likelihood of divorce or separation on the assessment of damages in a wrongful death claim’; Number 57 (2003).
[4] Some of these areas are already under consideration or form part of the Fiji Law Reform Commission’s 2005 work program.
[5] Justice Michael Kirby, in Australian Law Reform Commission, The Law Reform Digest (1983) vii.
[6] Roslyn Atkinson, ‘Law Reform and Accessibility’ (2004) The Commonwealth Lawyer 13(2) 29.
[7] Justice H.E Tuiloma Neroni Slade, above n 3.
[8] Section 5 Fiji Law Reform Commi Aion Act [Cap 26].
[9] Section 5 Lawrm Commission Act [Cap 15] (Solomon Islands).
sup>[10] Section 9 Laorm Csion sion Act 19ct 1975 (Papua New GuineGuinea).[11] Section 7160; Law Commission Act
[12] Section 7(b) – ommission sion Act [Cap 115] (Vanuatu).
[13] Section 7(c) Law Commission Act [Cap 115] (Vanuatu).
[14] Section Law Reform Commission Act 2002 (Samoa).
[1up>[15] Section 3(2)(a) Fiji Law Reform Commission Act [Cap 26].
[16] Section 3(3)(b) Fiji Law Reform Commission Act [Cap 26].
[17] Section 3(3)(a) Fiji Law Reform Commission Act [Cap 26].
[18] Section 3(7)(a) Fiji Law Reform Commission Act [Cap 26].
[19] Section 3(2) Law Reform Commission Act 1975 (Papua New Guinea).
[20] Section 7(2) Law Reform Commission Act 1975 (Papua New Guinea).
[21] Section 5(1) Law Reform Commission Act 1975 (Papua New Guinea).
[22] Section 6 Law Reform Commission Act 1975 (Papua New Guinea).
[23] Section 15(1) Law Reform Commission Act 1975 (Papua New Guinea).
[24] Section 3(2)(a) Law Reform Commission Act [Cap 15] (Solomon Islands).
[25] Section 3(2)(b) Law Reform Commission Act [Cap 15] (Solomon Islands).
[26] Section 4(2) Law Reform Commission Act [Cap 15] (Solomon Islands).
[27] Section 3(4) Law Reform Commission Act [Cap 15] (Solomon Islands).
[28] Section 3(3) Law Reform Commission Act [Cap 15] (Solomon Islands).
[29] Section 10(1) Law Reform Commission Act 20i>(Samoa)amoa).
[30] Section 10(2) Law Reform Commission Act 2002 (Samoa).
[31] Section 11(2) Law Reform Commi Act 2002 (Samoa)amoa).
[32] Section) Law Reform Commission Act 2002 Samoa)amoa).
[33] Section 11(3 11(3) Law Reform Commission Act (Samoap.
[sup>[34] Section 3(1) Law Commission Act [Cap 115] (Vanuatu).
[35] Section 3(3)aw Commission Act [Cap 115] (Vanuatu).
[36] Section 3(2) Law Comm Commission Act [Cap 115] (Vanuatu).
[37] In his address to the Australasian Law Reform Agencies Conference in Wellington, New Zealand in April 2004 (see n 3) Justice Tuiloma Neroni Slade noted that the law reform commission envisaged for Samoa would amount to almost two-thirds of the total budget for the Office of the Attorney General.
[38] Justice Tuiloma Neroni Slade, above n 3.
[39] Ibid.
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