New Zealand Law Society - Serious concerns raised about constitutional law changes in Sāmoa

Serious concerns raised about constitutional law changes in Sāmoa

New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati released the following statement on 4 May:

Senior judges and lawyers in Sāmoa are concerned that significant constitutional reforms are being progressed rapidly during the current COVID-19 pandemic and without the necessary consultation. The New Zealand Law Society | Te Kāhui Ture o Aotearoa shares these concerns.

The Government of Sāmoa is advancing a suite of measures – the Constitution Amendment Bill 2020, the Land and Titles Bill 2020 and the Judicature Bill 2020 – and the bills have reached an advanced stage. It is proposed that the constitutional right of Sāmoans to seek judicial review of a decision of the Land and Titles Court in Sāmoa’s Supreme Court and Court of Appeal be removed; and that the judicial function of Sāmoa be split into two separate and potentially competing branches.

“There is understandable concern that this move is likely to adversely affect the rule of law, the position of the Chief Justice and the supervisory jurisdiction in the hierarchy of courts in Sāmoa. Senior judges in Sāmoa have expressed serious reservations about the constitutional changes, and the legislative process adopted,” New Zealand Law Society President Tiana Epati says.

The Sāmoa Law Society is concerned, and its President, Mr Leiataualesa Komisi Koria, has issued a media statement regarding the irregular process and serious constitutional implications. The Sāmoa Law Society has requested the assistance of the New Zealand Law Society.

The New Zealand Law Society is more than willing to provide assistance and to speak out in support of the Sāmoan judiciary and legal community, while acknowledging that Sāmoa is an independent sovereign country with its own legal system, customs and fa’a Sāmoa.

“Whatever policy aims need to be achieved, it is hard to understand how such constitutional changes can be justified without the explicit support of a large majority of the people of Sāmoa obtained through proper consultation. New Zealand and New Zealand lawyers have an interest in the integrity of the legal systems of our Pacific neighbours with whom we deal frequently,” Ms Epati says.

New Zealand has a long and close legal association with Sāmoa. Many of its lawyers have been educated here. Professor Colin Aikman of New Zealand was one of the most influential figures in the drafting of the Constitution that preceded Sāmoa’s independence in 1962. There were elaborate consultations over the Constitution and the process took several years.

New Zealand and Sāmoa share a similar legal heritage. We are both parliamentary democracies essentially based on the Westminster system. Many Sāmoan laws derived from New Zealand. Shared fundamental principles embedded in both legal systems are of vital importance to the preservation of freedom and good government.

“As President of the New Zealand Law Society, I speak also as a person who is of Sāmoan heritage. I came to New Zealand from Sāmoa at the age of 10. I have learned first-hand in New Zealand the importance of proper process, the rule of law, the independence of the judiciary and the availability of judicial review. These are essential elements of democratic government.”

The New Zealand Law Society has shared its concerns with New Zealand Ministry of Foreign Affairs and Trade.

Consultation begins on draft Access to Justice report

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has released a draft research report, Access to Justice – a stocktake of initiatives.

Introducing the report, Law Society President Tiana Epati notes that “assisting and promoting the reform of the law for the purpose of upholding the rule of law and the administration of justice is a key function for the Law Society and that remains unchanged”.

“This report, however, illustrates our willingness to explore these issues differently, taking a people-centred approach to better understand the issues from a consumer rather than a system perspective. We know this may challenge some conventional thinking or preconceptions of our role and I welcome that; fresh thinking can be the catalyst for innovation and new initiatives.

“Our aim is to build a picture of the range of access to justice initiatives across Aotearoa New Zealand and to engage with stakeholders to better understand that broader landscape. Alongside this, we are also building a fuller picture of international initiatives.”

Consultation on the draft report is open until 3 August. Any questions or comments can be directed to A copy of the report is available on the Law Society website.

Safeguards needed for fast-tracked COVID-19 immigration legislation

Legislation being fast-tracked through Parliament to give the Minister of Immigration extraordinary powers needs safeguards, the New Zealand Law Society | Te Kāhui Ture o Aotearoa told the Epidemic Response Committee on 7 May.

The Law Society said changes to the Immigration (COVID-19 Response) Amendment Bill were needed, particularly as the bill was being passed very quickly with little opportunity for considered scrutiny.

“The bill will give the Minister powers to make immigration decisions quickly and effectively, and the Law Society agrees that immigration legislation needs urgent amendment to respond to the COVID-19 outbreak,” Law Society spokesperson Debra Angus told the committee.

But the Law Society cautioned against granting extraordinarily broad powers to the Minister without adequate safeguards.

“The Minister will have absolute discretion to issue ‘special directions’ which potentially could affect many thousands of people and will also be able to vary sections of the Immigration Act that would otherwise apply. These are extraordinary powers and need to be very carefully scrutinised,” Ms Angus said.

The Law Society told the committee it would be preferable for the new powers to be exercised through regulations or Orders in Council, which is a more considered process that can still be responsive and flexible in times of emergency.

The Law Society also recommended other changes to the bill to ensure the new immigration powers can be exercised in the public interest, but not at the expense of the rights held by migrants, refugees and visa applicants.

“A purpose statement could be added, to ensure the welfare of migrants, refugees and visa applicants is considered when the Minister exercises these broad powers. Alternatively, there could be a requirement that the Minister must be satisfied that special directions are not detrimental to migrants, refugees and visa applicants,” Law Society spokesperson Mark Williams told the committee.

Law Society Library returns to normal

The move to Level 1 on 9 June meant access to the Law Society Library returned to pre-COVID-19 conditions. Access to the Auckland and Canterbury libraries is now at any time by swipecard, while the Wellington library has after-hours access by swipecard and with the doors unlocked from 8:30am to 5pm, Monday to Friday. The Library was able to re-open to lawyers under Level 2, with restricted hours and no after-hours access.

COVID-19 debt and insolvency legislation needs more work, says Law Society

Legislation being fast-tracked through Parliament to respond to looming debt and insolvency problems needed refinement and to be supported by comprehensive practical guidance, particularly for the small-to-medium businesses that make up the bulk of New Zealand’s business activity, the New Zealand Law Society | Te Kāhui Ture o Aotearoa told the Epidemic Response Committee on 8 May.

The Law Society pointed to a number of concerns with the Business Debt Hibernation scheme and proposed “safe harbours” relating to directors’ duties in the COVID-19 Response (Further Management Measures) Legislation Bill, particularly as the bill was being passed very quickly with only minimal opportunity for input from stakeholders.

“We are concerned the complexity of the proposed BDH scheme will mean it is effectively out of reach for the SME community and so will not meet the desired policy goals. A solution may be for a shorter and simpler (and so faster) process, aimed specifically at smaller entities, to be formulated. In any event, guidance on the BDH scheme should be provided to assist smaller entities to navigate the scheme,” Law Society spokesperson Charlotte McLoughlin told the committee.

The Law Society pointed to other concerns, including directors’ ability to ‘confidently comply’ with the BDH scheme, given the need for directors to make statutory declarations about matters that are inherently uncertain, when such declarations may not be necessary in any event.

“If directors are not able to comply confidently, the uptake of the scheme will be limited,” Ms McLoughlin said.

The Law Society suggested a range of changes to the bill to improve the effectiveness of the proposed ‘safe harbours’, including clearer drafting of the safe harbour to section 135 (reckless trading), to better align the conditions of the safe harbour with the substance of the underlying duty, and adding a statement of the statutory purpose of the regime.

“This would help directors to understand, clearly and with confidence, their obligations and what protection they have during the next 18 months,” Ms McLoughlin said.

Practical problems with audio links

The Law Society also commented on other parts of the bill, including the proposal to allow the use of audio links to conduct hearings in Corrections disciplinary and criminal court proceedings. The Law Society supported measures to address current constraints on remote access to hearings, but told the committee there were significant concerns about the precedent of allowing “audio only” hearings, even on an emergency basis. The Law Society believed these amendments should be deleted from the bill.

Appearing in a Corrections disciplinary proceeding or sentencing hearing only via audio link did not amount to real and effective participation by the prisoner/defendant, the Law Society said. Efficiency, or the fact that an audiovisual link is difficult to arrange at present, should not trump defendants’ right to effectively participate in proceedings that may impact on their liberty.

“The real purpose of disciplinary and sentencing hearings is to formally address conduct and encourage behaviour change, and this is at risk of being severely undermined if people do not feel engaged in the process,” Law Society spokesperson Chris Macklin told the committee.

The Law Society has also pointed to significant practical problems with conducting hearings via audio link, given current resource constraints in the justice sector. If the audio link provisions are retained for the duration of the pandemic period, the Law Society recommends the Bill be amended to require the prisoner/defendant’s consent to the use of audio links for hearings.

This was the Law Society’s second appearance before the Epidemic Response Committee. The submissions on the Immigration (COVID-19 Response) Amendment Bill and COVID-19 Response (Further Management Measures) Legislation Bill are available on the Law Reform section of the Law Society website.

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