As the 53rd Parliament closes, LawTalk recaps the Law Society’s law reform and advocacy work across this parliamentary term.
Supported by 16 committees made up of around 160 volunteers, the Law Society made over 200 formal submissions on bills, discussion documents, Law Commission reports, and other consultations. Our volunteers participated in work programmes such as the Criminal Practice Improvement Process, as well as various working groups and regular stakeholder engagements.
Access to Justice – one of the Law Society’s key priorities
In December 2020, the Law Society published its report ‘Access to Justice – a stocktake of initiatives’. This report aimed to outline access to justice initiatives across Aotearoa New Zealand and identify where the Law Society is uniquely placed to have the greatest impact on improving access to justice for all New Zealanders.
Legal aid was identified as an area requiring urgent attention. The Law Society undertook the largest ever survey of New Zealand lawyers on access to justice, seeking information on current struggles within the legal aid regime, and barriers to providing legal aid. The aim was to build an evidence base upon which the Law Society could advocate for significant improvements.
Almost 3000 lawyers responded to the Access to Justice Survey, undertaken with Kantar Public. It found:
- Half of respondents rated the legal system as poor or very poor at providing everyone in Aotearoa New Zealand with access to justice.
- Three quarters of legal aid lawyers have had to turn away people seeking legal assistance, amounting to around 20,000 people turned away.
- A quarter of legal aid providers intended to do less legal aid work – or stop altogether – over the next 12 months. The primary reason for this was inadequate remuneration.
- Eighty one per cent of lawyers had provided free legal assistance in the past 12 months, and around 60 per cent had provided services at a reduced rate.
The Law Society called for the Government to urgently invest in the remuneration of legal aid lawyers and ensure the sustainability of the legal aid regime. Budget 2022 went some way to begin addressing this, providing a 12 per cent increase to the legal aid hourly rate, as well as the fixed fees claimed for hearing and waiting time across all jurisdictions.
Remuneration and provider coverage remain an issue. The Law Society has commenced work to understand the current costs of practice for lawyers. This will assist us in continuing our evidence-based advocacy for the benefit of all legal aid providers and the wider profession.
The Law Society has long advocated for a review of the duty lawyer remuneration rate following a nearly 25-year period with no significant increase. In April 2023, President Frazer Barton wrote to the Minister of Justice conveying the Law Society’s ‘grave concern’ that duty lawyer work had become unsustainable, risking serious impacts on defendants, victims, and the criminal justice system as a whole.
Supported by 16 committees made up of around 160 volunteers, the Law Society made over 200 formal submissions on bills, discussion documents, Law Commission reports, and other consultations
In July 2023, the Law Society welcomed the news that the hourly rate for duty lawyers would increase from 1 August 2023, and that a broad-scope review of the duty lawyer service would commence the same month. The Law Society looks forward to playing a pivotal role in the review.
Access to Civil Justice
With the assistance of the Civil Litigation and Tribunals Committee, the Law Society participated in several projects to improve access to civil justice. Of note are two projects undertaken by the Rules Committee Te Komiti mō ngā Tikanga Kooti:
- The Access to Civil Justice project, which led to recommendations for policy and legislative changes as well as rule changes, to improve access to civil justice in the Disputes Tribunal, the District Court, and the High Court; and
- The Costs for Litigants-in-Person project, which revisited the rules which prevent self-represented litigants from obtaining costs awards.
The Law Society provided feedback to the Law Commission and the Ministry of Justice, on introducing a statutory framework for class actions and litigation funding. This important work will facilitate access to the courts, and improve access to civil justice for New Zealanders.
Constitutional law: developments and challenges
COVID-19 was a significant focus for the Law Society in 2020 and 2021. The Law Society worked closely with its law reform committees, judges, and officials, to provide feedback on changes to court rules, legislation, and justice sector operations. Significant work included:
- Urgent feedback on a draft of the COVID-19 Public Health Response Bill, raising concerns about the rule of law, the broad and draconian nature of the proposed offence provisions, and provisions which would unjustifiably undermine rights.
- Contributing to the Epidemic Response Committee’s scrutiny of the emergency legislation.
- Intervening in judicial review proceedings regarding the legality of the Government’s COVID-19 lockdown restrictions.
- Urgent feedback on the Immigration (COVID-19 Response) Amendment Bill, recommending changes to ensure accountability and transparency in the exercise of powers granted under the legislation.
- A submission on the COVID-19 Response (Courts Safety) Legislation Bill, raising concerns regarding the proposal to grant powers to the heads of bench to make secondary legislation.
- Meetings with the judiciary and officials regarding court operations, providing feedback on COVID-19 court protocols in each of the jurisdictions, and access to clients in the Corrections system.
The Public and Administrative Law Committee and Rule of Law Committee also contributed to the Law Society’s submissions on:
- The Water Services Entities Bill, and the inclusion of an entrenchment clause by Supplementary Order Paper at Committee of the Whole House stage. The Law Society objected to the lack of public consultation and cross-party dialogue afforded to a significant constitutional action. The clause was ultimately removed.
- Following Cyclone Gabrielle in 2023, the Severe Weather Emergency Response Bill, which raised rule of law concerns around the extensive use of Orders in Council, and the severely truncated select committee process.
- The 2023 Review of Standing Orders, in which the Law Society advocated strongly for Parliament to undertake post-legislative scrutiny of legislation, in particular where urgency is employed or the select committee process is otherwise truncated.
- The draft recommendations of the Independent Electoral Review, including those relating to the design of electoral law, the use of entrenchment provisions, and emergency powers.
Criminal and Youth Justice
This term, the Criminal Law Committee, Human Rights and Privacy Law Committee, and Youth Justice Committee, contributed to a wide range of consultations, including:
- Following ongoing support for its repeal, the Law Society welcomed the Three Strikes Legislation Repeal Bill and advocated for Parliament to address the circumstances of those already sentenced under the Three Strikes Regime.
- The Counter-terrorism Legislation Bill, introduced in response to the findings of the Royal Commission of Inquiry into the terrorist attack on Christchurch Mosques.
- Te Arotake Tuatoru I te Evidence Act 2006, the Law Commission’s third Review of the Evidence Act.
- The Law Commission’s Hapori whānui me te tangata mōrea nui: he arotake o te mauhere ārai hē me ngā ōta nō muri whakawhiu, Public safety and serious offenders: a review of preventive detention and post-sentence orders.
- Advocating for the repeal of schedule 1A of the Oranga Tamariki Act 1989, which requires the automatic transfer of young people charged with certain offences to the adult jurisdiction. The Law Society also appeared before the Justice Select Committee during its inquiry into youth offending.
Other significant law reform this term
- The Natural and Built Environments Bill and Spatial Planning Bill – the Environment Law Committee, Climate Change Law Committee, and Property Law Section contributed to one of the largest submissions ever made by the Law Society– over 90 pages long.
- The Tax Law Committee responded to a consistent stream of consultation, including significant matters such as the introduction of further information-gathering powers under section 17GB of the Tax Administration Act, and the Taxation Principles Reporting Bill, both of which raised concerns around the rule of law and the integrity of the tax system.
- The Ministry of Justice’s statutory review of the AML/CFT regime. The Law Society, with contributions from lawyers and firms, advocated for a focus on risk-based application of the statutory timeframe, and consideration of the reasonableness of the compliance burden.
- Under urgent timeframes, the Law Society provided feedback on a draft version of the Russia Sanctions Bill.
- Following feedback from the profession and our volunteers, the Law Society continues to advocate strongly for focus on the wellbeing of the profession. The judiciary has been receptive to these concerns and has written to judges across the motu seeking their assistance and acknowledgement.
- The Immigration and Refugee Law Committee provided feedback to the Refugee Status Unit on introducing a Practice Note and improving the processes for claiming refugee status. This feedback was well-received, and the Practice Note is now operational.
- The Accident Compensation Law Committee successfully advocated for a legislative fix to ensure claimants who receive backdated lump-sum payments from ACC are not disadvantaged by the tax treatment of entitlements which were not paid at the time at the time of eligibility.
Family Law Reform
The Family Law Section has led the Law Society’s response to a number of major family law reforms this Parliamentary term, including:
- Alongside the Property Law Section, the Law Commission’s Review of Succession Law.
- Te Kōpū Whāngai: He Arotake, the Law Commission’s review of surrogacy law in Aotearoa New Zealand, and the Improving Arrangements for Surrogacy Bill.
- The Ministry of Justice’s review of options for reform of adoption law.
- Family Court (Supporting Children in Court) Legislation Bill.
- The Family Court (Family Court Associates) Amendment Bill, which created the new Family Court Associate role, a judicial officer who will take on some work currently undertaken by judges. The Family Law Section also provided substantial feedback on proposed changes to the Family Court Rules, which are necessary to enable the Family Court Associate role.
- Oversight of Oranga Tamariki System and Children and Youth People’s Commission Bill.
- Alongside the Health Law Committee, the Law Commission’s first Issues Paper on He Arotake i te Ture mō ngā Huarahi Whakatau a ngā Pakeke, the Review of Adult Decision-Making Capacity Law.