The Law Society plays an important role in law reform and has a reputation for high-quality and impartial contributions to law reform, access to justice, and the rule of law. This is done on behalf of the legal profession and in the public interest – it is a core regulatory function under the Lawyers and Conveyancers Act 2006.
This work is made possible by the contributions of over 160 volunteers, who sit on 18 law reform committees covering the full spectrum of practice areas.
This year has seen our volunteers and in-house team submit on 28 Bills and 50 discussion documents. We have continued to advocate on issues relating to access to justice, including legal aid; barriers to accessing civil justice; and the effects of Covid-19 on the courts and clients in custody.
We also established the Climate Change Law Subcommittee, in response to this fast-growing area of practise and the increasing number of legislative and policy initiatives. Interest in joining was considerable: our inaugural convenor is Natasha Garvan, a partner at Bell Gully, and the subcommittee is made up of experienced practitioners with an interest and background in climate change law. Their work will begin in earnest in 2023 – we are expecting work to progress on the Climate Adaptation Act, as part of the continuing reform of New Zealand’s resource management regime.
Notable law reform this year
The law reform committees contributed to a number of significant legislative and policy reform proposals this year:
- Three Strikes Legislation Repeal Bill: The Law Society opposed introduction of the ‘Three Strikes’ regime and had long advocated for its repeal, on the basis that it fettered judicial discretion, precluded fair and proportionate sentencing, and risked breaching the New Zealand Bill of Rights Act 1990. The Law Society submitted in support of this Bill and recommended transitional arrangements for those already sentenced under the regime. In August 2022, the regime was repealed.
- Russia Sanctions Bill: Following Russia’s invasion of Ukraine in February 2022, this Bill was introduced and passed under urgency to enable sanctions to be placed on designated persons. The Public and Administrative Law Reform Committee responded at short notice to review and comment on a draft copy of the Bill.
- Fair Pay Agreements Bill: This bill seeks to introduce a framework for collective bargaining for fair pay agreements across entire industries or occupations. While commending the intention of the Bill, the Law Society has noted that this significant development in employment law will introduce a number of complex and onerous processes.
- Led by the Family Law Section, the Law Society submitted on two major bills relating to Oranga Tamariki’s primary legislation (including partial repeal of the subsequent child provisions) and its oversight regime: the Oranga Tamariki Amendment Bill and Oranga Tamariki System and Children and Young People’s Commission Bill.
“An initial increase in hourly rates (including the hearing time component of fixed fees) has been achieved, and the Law Society will continue to advocate for increased investment in the legal aid regime”
- Review of Standing Orders: This review, undertaken by the Standing Orders Committee, occurs each term of Parliament. The Law Society has contributed to the review, recommending a series of processes and ‘trigger points’ for a system of post-legislative scrutiny of legislation, particularly where bills have been passed under urgency.
- Modern slavery and worker exploitation: In June, the Ministry of Business, Innovation and Employment (MBIE) consulted on a potential legislative response to modern slavery and worker exploitation. This substantial submission – which supported the introduction of a legislative regime – necessitated the input of the Employment Law, Human Rights and Privacy Law, and Immigration and Refugee Law Committees.
- A NZ Income Insurance Scheme: In April, MBIE consulted on a proposed Income Insurance Scheme, a major policy initiative that would operate to support workers with 80 per cent of their income, where they lose employment through redundancy. This submission was a team effort, involving the Accident Compensation, Employment Law, Public and Administrative Law, and Tax Law Committees.
- Accident Compensation Law: Our Accident Compensation Committee made a submission on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill, and provided feedback on proposed changes to the Accident Compensation (Review Costs and Appeals) Regulations 2002, the Accident Insurance (Occupational Hearing Assessment Procedures) Regulations 1999 and the ACA Practice Guidelines. Committee members also worked with NZLS CLE to present the ACC – the essentials webinar for lawyers representing ACC claimants.
Access to justice
Improving access to justice is central to the Law Society’s law reform work and is a key focus in our advocacy efforts. In 2022, both civil and criminal justice were the focus of proposals for improvement:
- Legal aid: Following on from the 2021 Access to Justice Survey, the Law Society continued to advocate for Budget 2022 to include increases to remuneration for legal aid work. An initial increase in hourly rates (including the hearing time component of fixed fees) has been achieved, and the Law Society will continue to advocate for increased investment in the legal aid regime.
- Costs for litigants-in-person: We made a submission on the Rules Committee’s second Costs for Self-Represented Litigants consultation paper, with input from the Law Society’s Professional Standards Group, the Civil Litigation & Tribunals Committee, Employment Law Committee, and the In-house Lawyers Association. Our submission included feedback on proposed daily recovery rates and the relevance of the indemnity principle to determining costs.
- Law Commission’s review of class actions: In March, the Law Society provided further feedback on the Law Commission’s project on Class Actions and Litigation Funding. The Commission has now published its final report, which recommends developing a new Class Actions Act to improve access to justice and efficiency in litigation. We now expect the Government to consider the report and respond to the Commission’s recommendations.
- Wayfinding for civil justice draft national strategy: In June, we provided initial feedback on a draft national strategy which seeks to “provide a framework to guide the journey towards improved access to justice”. We recently provided further feedback on a revised version of the draft strategy, which reflected the feedback we had provided earlier in the year.
- Digital Strategy for Courts and Tribunals: Covid-19 has accelerated learnings around the use of technology in court proceedings. In September, the judiciary consulted on a draft Digital Strategy for Courts and Tribunals, which sets out objectives and guiding principles for the use of digital technology in supporting the administration of justice. The Law Society submitted on this draft strategy and will remain involved as work to modernise court practice continues.
The Law Society’s advocacy in 2022 continued to have a strong focus on the implications of Covid-19 on court proceedings, access to clients in custody, and practitioner wellbeing. This involved regularly raising issues with the judiciary and Heads of Bench, working on the courts’ Covid-19 protocols to ensure safety and workability, and engaging with the Department of Corrections to improve contact with clients in custody. The Criminal Law Committee, Legal Services Committee, and Youth Justice Committee, alongside the Family Law Section and Property Law Section, have frequently worked within tight timeframes to ensure proceedings can, as far as possible, continue safely and with minimal delay.
“The Law Society’s advocacy in 2022 continued to have a strong focus on the implications of Covid-19 on court proceedings, access to clients in custody, and practitioner wellbeing”
As noted above, the Law Society continues to advocate strongly for evidence-based improvements to the legal aid system, including remuneration. This work will progress in 2023, as we look to ensure continued investment and improvements to administrative requirements.
The law reform committees continue to provide advice and feedback on various initiatives arising from the Criminal Practice Improvement Programme, a judicially led cross-agency programme of work aimed at devising, testing, and implementing best practice court processes.
Occasionally the Law Society intervenes as a public interest intervenor in cases raising significant public interest issues, or issues that may impact widely on the profession. Most often, the Law Society will intervene when the Court itself asks it to do so, because the Court has identified issues of considerable public importance it wishes to address. The Law Reform Committees are involved in providing advice on whether the Law Society should seek to intervene in a case and – if leave is sought to intervene and granted – they may also contribute to the Law Society’s submissions.
In 2022, the Law Society intervened in three cases:
- Hanara v the Queen: This appeal, currently awaiting judgment, centres on when a defendant in a criminal trial should be found unfit to stand trial under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Law Society’s submissions supported the court undertaking a wider inquiry when considering a defendant’s fitness, including the existence of any cultural, age-related, or other factors that may impact the defendant’s ability to effectively participate in the proceedings.
- Health New Zealand / Maaka-Wanahi v Attorney General: These ongoing proceedings were initiated by the former Waikato District Health Board, which seeks various declarations to the effect that it is not required to comply with Court orders directing a ‘health assessor’ to prepare a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
- Newton v Family Court at Auckland  NZSC 112: This intervention, led by the Family Law Section, involved issues as to the reviewability of reports from Lawyer for Child, and whether a Judge is required to obtain the views of children before ordering reports pursuant to section 133 of the Care of Children Act.