Carrying Out a Reference
The LRC receives references from the Minister for Justice and Legal Affairs (section 5 Law Reform Commission Act). The terms of reference given by the Minister provide the basis for our work.
What this section does:
Sets out the different stages for a reference. Provides guidance on how to identify the issues, research questions and develop a consultation or issues paper Provides guidance for analysis of research and consultations in order to develop draft recommendations.
Reference Plan
When the LRC receives a reference or decides to start work on a reference the Research Manager/Executive Officer/Principal Legal Officer will work together to develop a plan for the inquiry. They will identify key resources, set up and scope projects, or sub-projects, within the inquiry, set up an advisory committee (if necessary) and liaise with the Chairman and Commissioners. Projects or tasks will be allocated to staff and monitored by the Research Manager and Executive Officer.
A staged approach to law reform
Many law reform agencies use a staged approach to conduct inquiries.
The stages often overlap and are not always distinct. For a large or complex inquiry, such as the review of the Penal Code and Criminal Procedure Code, the inquiry will have to be divided up into smaller and discrete projects and subprojects.
The decision whether to produce an Issues Paper or Consultation Paper will depend on the nature and complexity of the inquiry.
For some projects (particularly projects that are part of a larger reference such as the review of the Penal Code and Criminal Procedure Code), where there has been significant research or consultation, the consultation paper might contain more detailed research, and suggest options for reform.
Stage 1: identify the issues
At the outset it is good to check back on the purpose of the reference by considering the terms of reference and the LRC Act. The terms of reference often pose questions; or give an indication of the reason why the reference has been given to the LRC.
For example, the terms of reference for the land below high water mark and low water mark inquiry gave four specific questions that had to be answered.
For the review of the Penal Code and Criminal Procedure Code the terms of are very general, but it does have a short explanation that gives some indication of why the reference was given to the LRC.
Identify the relevant law
Identify relevant legislation and law relevant to your project. Remember relevant law might include common law, applicable international law, Constitutional provisions and case law. A table or spreadsheet is a good tool to use to identify all the relevant legislative provisions and law. You can also use the table or spreadsheet to compile comparative information, or to summarise points or issues that may need to be addressed during the law reform process.
Get familiar with how the law operates, and the policy context
You will need to identify and collect other information, including:
- relevant caselaw;
- court rules and guidelines;
- government policy;
- reports (from Parliament, NGOs, conference papers, journal articles); and
- work done by other law reform agencies.
To inform yourself generally about the area of law that your project covers you can consult:
- Halsbury’s
- textbooks
- USP lecture notes (we have a partial collection of USP notes on criminal law)
- Grey Books (for criminal law this is essential reading!)
Get an understanding of how the law is operating in practice – this will require consultation, consideration of case-law and journal articles or observation.
Requirements of the Constitution and international obligations
Depending on the project it might be necessary to do some detailed research on the Constitutional and human rights issues by considering case law in the Pacific and other relevant bodies such as the European Court of Human Rights, comments made by UN committees responsible for monitoring human rights treaties.
Consultants and experts
Information can also be specifically sought from consultants and experts. They might be commissioned to undertake specific research, or to answer a specific legal question. One way to utilise experts is to invite them to participate in consultation activities, such as workshops or forums. One example of this is the paper given by Joseph Foukona at the workshop held in February 2011 for the land below high water mark/low water mark reference.
Another way to involve experts is to form an advisory or experts group for a reference or a project. An example of this is the advisory group set up for the review of the Penal Code and Crminal Procedure Code.
Stage 2 Identify problems and possible issues that may need to be addressed –“formulate the research questions”.
Problems or questions might be set out in the terms of reference for an inquiry, or as part of the terms of reference for a project or sub-project within a larger inquiry. Identifying problems and questions helps to focus our ongoing research and consultation. Developing research questions can take place over the different stages of an inquiry, and it is essential to develop them for the Issues Paper or Consultation Paper. The identification of problems, issues and questions should start to take place as you undertake research and early consultation.
Questions are central to the consultation done by the LRC. This diagram shows the interactive relationship between the purpose of the project, frameworks (constitutional principles, international law requirements, general legal theory, social and political contexts), data collection (research, consultation and submissions) and evaluation (consulting with experts, checking that the right people were consulted, comparison to other jurisdictions or studies).
Stage 3 Consultation
Consultation is an extension of research. It is a process of collecting primary data that can help to answer our research questions. As suggested above consultation can take place at different points in the law reform process. At an early stage it can be used to help to identify issues and problems, and to formulate research questions. Later in the process it can be used to check back with stakeholders and consult on draft recommendations.
See community engagement for more information on planning and conducting consultation.
Stage 4 Analysis of the data (research and consultation)
The next step is analysis of all the information collected in order to develop recommendations in response to the terms of reference. Analysis can be challenging due to the large amount of material that is collected, and the need to determine what weight should be given to information from different sources. Analysis is a process where we: Select the information or data that is relevant to the research questions. Sort out the relevant pieces of information and organise it so it can be accessed and referred to easily. Make connections between the different pieces of information that we have collected. Draw conclusions that enable us to address the terms of reference.
Selecting and sorting the information reseach questionsterms of referencedata collection methodsevaluationlegal context and frameworks
Different strategies or tools for selecting and sorting information include creating a summary or thematic analysis of consultation notes and submissions, comparative tables and comparative analysis, case digests and case summaries or studies.
Connecting the information
Connection involves making connections between different pieces of information, or “making a story” from the different pieces of information. For example, making a connection between issues or problems raised by a consideration of the case law on a subject, the information gained from consultation and comparative information regarding reform or approaches to reform in other jurisdictions. Making the connections between the different pieces of information is important because it provides the explanatory framework for draft recommendations. For example, we can justify a recommendation by reference to those connected pieces of information.
Stage 5 Conclusion drawing
This is the process for developing recommendations. This can involve interpreting patterns emerging from the data. For a large or complex project it might be useful to first develop some guiding principles for recommendations before going on to formulate more detailed recommendations.
These processes are interactive and flexible!
Evaluation
Evaluation describes the process of checking the outcomes and conclusions of the research. This can be done in different ways: Obtain a different perspective on an issue by comparing to findings from research conducted by other agencies. This might be useful when evaluating information drawn from consultation and submissions. Take conclusions and recommendations back to stakeholders (or segment of stakeholders such as group of experts, or a reference group). Search for conflicting evidence.
Record Management
Keeping accurate electronic and paper records for an inquiry is vital.
Records include: Notes of consultations and interviews, including walk-in submissions. Notes of discussions held with stakeholders at workshops. Records of Commission meetings, advisory committee meetings.
As a general rule, notes should be taken by at least two members of staff at consultation meetings or workshops that involve a number of people. Submissions from individuals or small groups of people (usually walk in submissions) can be noted by one person. Notes must be typed up and saved in the appropriate place. If a walk in submission is taken by a legal officer who is not responsible for a project or inquiry the type written notes must be handed over to the responsible legal officer.
A database (or summary) of submissions and consultation notes must be maintained by the legal officer responsible for a project or inquiry. The database should contain basic details about each submission or consultation (date, place, participants or person/organisation making submission) as well as information about the questions or issues addressed or raised by the submission or consultation. For a large and complex inquiry the Executive Officer will monitor and manage the database.
Records of Commission meetings and advisory committee meetings will be maintained by the Executive Officer.