2020 has been an extraordinary year and the Law Society has been heavily involved in working on the legislative response to the many challenges Covid has thrown up for the justice system, the profession and New Zealanders – in addition to our normal ‘bread and butter’ law reform and advocacy work.
This work is central to representing the profession and speaking out in the public interest on key issues such as access to justice, constitutional protections, the rule of law, operation of the justice system, and the quality of legislation.
In total, the Law Society made more than 100 submissions during the year to government departments, the Rules Committee, the senior judiciary and Parliamentary select committees, and appeared at many select committee hearings about Bills. The submissions covered virtually all areas of the law and legal practice, and express views on behalf of the profession on many significant reform proposals. The work is carried out on a voluntary basis by lawyers on the Law Society’s 16 specialist committees, Family Law and Property Law Sections, and Law Reform Committee. It is an immense collective effort on behalf of the profession and in the public interest, and is central to our engagement with the government and the judiciary.
Covid was a significant focus in the first half of the year: the Law Society and its volunteer contributors worked closely with judges and officials, particularly in the Level 4 lockdown period, on many urgent changes to court rules, legislation and justice sector operations. That work, and other significant topics on which we made submissions – and in some cases appeared before select committees and the senior Courts – included:
- Covid urgent legislative response: Submissions on a number of fast-tracked bills, including the Immigration (COVID-19 Response) Amendment Bill 2020, the COVID-19 Response (Further Management Measures) Legislation Bill and the COVID-19 Recovery (Fast-track Consenting) Bill.
Brief comments at short notice on a consultation draft COVID-19 Public Health Response Bill, and a comprehensive submission on the select committee post-enactment inquiry into operation of the COVID-19 Public Health Response Act 2020.
- Covid legality: Comments to assist Parliament’s Epidemic Response Committee scrutiny of the emergency legislation response to the Covid pandemic, and
Intervenor submissions to assist the High Court in a judicial review of the legality of the Government’s Covid lockdown restrictions.
- Legal & operational issues arising from Covid: intensive engagement with officials and other stakeholders, particularly in relation to the operation of the courts, immigration and tax.
- New Zealand’s legislative response to terrorism: Following the Christchurch mosque terrorist attacks, submissions on the first urgent firearms legislation reforms, and subsequent tranche of reforms, and comments on NZ Police consultation about the potential introduction of Firearms Prohibition Orders, and
Comments on the Terrorism Suppression Control Orders Bill regime, enabling serious restrictions to be imposed on people coming into NZ suspected of participating in terrorism-related activities overseas.
- Access to legal advice: Intervenor submissions in an appeal to the Court of Appeal re the Police Detention Legal Assistance scheme and NZBORA rights.
- Class actions and litigation funding: Intervenor submissions to assist the Supreme Court in relation to procedures for efficient and fair conduct of representative proceedings; the appeal involved issues of significant public interest, including access to justice.
- Civil access to justice: Feedback to the Rules Committee on significant proposed civil rules reforms.
- Sexual violence legislative reforms: Submissions on significant legislative reforms relating to sexual violence trials.
- NZBORA Declarations of Inconsistency: A submission supporting reforms enabling the government and Parliament to consider and respond to declarations of inconsistency made by the senior Courts, under the New Zealand Bill of Rights Act 1990 or Human Rights Act 1993.
Heading into 2021
We anticipate a busy year ahead, as the new Government progresses its legislative agenda. Government priorities already signalled include the ongoing restructure of the family justice system, reform of the criminal justice system, an ongoing focus on improving access to justice and updating a number of outdated statutes. The Law Society will continue to monitor reform proposals and contribute views on behalf of the profession.
Law Reform and Advocacy team:
- Vicky Stanbridge - Manager Law Reform
- Nilu Ariyaratne - Law Reform Advisor
- Amanda Frank - Law Reform Advisor
- Emily Sutton - Law Reform Advisor
Enhancing civil access to justice
Improving access to justice in the civil courts has been a key theme in 2020. The Law Society’s Civil Litigation & Tribunals Committee has spent a lot of time discussing reform options for the rules governing civil trial procedure and solutions to reduce barriers in the civil justice system.
The Committee prepared the Law Society’s submission to the Rules Committee regarding reform options to improve access to justice by reducing the cost of bringing civil matters to court. The Law Society supports changes that require early, substantive and flexible case management, minimising the procedural steps required to resolve disputes fairly and effectively. The Law Society also supports modernising the rules by embracing technology, for example by further enabling remote participation in hearings.
The Committee also provided extensive feedback to the Rules Committee on proposed changes to the costs rules, which currently prevent successful self-represented litigants from being awarded costs.
Another significant development was the Supreme Court appeal in Southern Response v Ross, concerning the principles that apply in deciding whether class actions should proceed on an ‘opt-in’ or ‘opt-out’ basis. The Law Society was invited to intervene as a neutral party, on issues of significant public interest regarding the procedures for efficient and fair conduct of representative proceedings and access to justice. While comprehensive legislation is the preferred solution, the Law Society submitted that the senior courts are institutionally capable of addressing procedural questions arising from opt-out orders.
The criminal justice system – responding to the Covid pandemic
Monitoring the impact of Covid on the criminal justice system was a priority for the Law Society’s Criminal Law Committee in 2020. Adjusting to more remote ways of providing legal advice and appearing in court quickly became the norm for most criminal lawyers.
Led by the Chief Justice, the courts had to quickly adapt to ensure that as an essential service, they remained operational. From early March, the courts engaged extensively with the Law Society and others to plan for and effectively conduct court business. It took a collaborative effort from all participants to keep the wheels of justice turning. The health and safety of all court users was prioritised while ensuring that operational changes upheld the rule of law and fundamental rights.
The committee provided feedback on a wide range of issues including the use of remote technology, health and safety measures, court protocols, and problems lawyers encountered on a daily basis during lockdown.
The committee also closely monitored lawyers’ access to clients in custody, which saw significant variations throughout the country. The Law Society appreciated the opportunity to raise concerns directly with Corrections to ensure access was facilitated via alternative means.
Looking ahead to 2021, there will be opportunities to consider what we learnt during the pandemic and apply that to criminal practice. Access to justice will remain a paramount consideration: as the Chief Justice has said, innovations to facilitate better access and improve administrative efficiency will not overturn the fundamental premise that in New Zealand justice is administered kanohi ki te kanohi (face to face).
Covid – the tax response
Assisting with the development of urgent tax law changes to respond to Covid was a key focus for the Law Society’s Tax Law Committee in 2020. Tax practitioners on the committee worked alongside Inland Revenue and other stakeholders to help navigate the Covid crisis.
The committee considered, usually at very short notice, a wide range of new tax issues affecting New Zealand individuals and businesses, as well as previous issues brought to the fore by the pandemic, including:
- Business debt hibernation
- Small business cashflow loan scheme
- Loss carry back scheme
- The Commissioner’s care and management and statutory variation powers
- Reimbursing employees for work from home costs
The rule of law and legislation
The Law Society’s remit is to uphold the rule of law and to support clear, workable and accessible legislation. As recently observed by Law Society President Tiana Epati “responding to the [Covid] crisis requires a commitment to the fundamental values that underpin our legal system”(Lawtalk 939, May 2020, p14). Public scrutiny and input into the law-making process and the maintenance of the rule of law are critical considerations, and never more so than in a crisis.
Broadly speaking, the committee is concerned that tax legislation is being drafted at pace. Currently we see a vast amount of legislation produced each year by a very small team which gets insufficient scrutiny, so there is a lack of opportunity for considered review and comment. We acknowledge the need for a reasonably speedy legislative process, but the appropriate quality checks and independent scrutiny need to be built into the system. In our view there is also a need for greater separation and independence of the tax legislation drafters, and a more disciplined and principled drafting process – including reducing the current over-reliance on supplementary piecemeal amendments and secondary legislation.
The committee and the Law Society will continue to engage with officials on key tax issues in the next phase of the Covid response.