New Zealand Law Society - Law reform and advocacy update: December 2023 onwards

Law reform and advocacy update: December 2023 onwards

The Law Society is a strong and trusted voice of the profession and advocates for access to justice and the rule of law across the motu. The law reform team shares their recent work advocating for duty lawyers and enabling access to justice for those who need it most.

Despite the election period meaning fewer bills for review and comment, the Law Society and its law reform committees have had a busy period of advocacy. Here’s what we’ve been up to recently:

Letters to incoming Ministers

The 54th New Zealand Parliament opened on 5 December 2023 and the Law Society wrote to several incoming Ministers, welcoming them to their new roles and setting out some of our key law reform priorities within their portfolios. These letters:

  • Emphasised the importance of high-quality reports and advice under section 7 of the New Zealand Bill of Rights Act 1990, and encouraged consideration of how Parliament can respond to these reports during the lawmaking process.
  • Advocated for further investment in the courts, to ensure safe and functional spaces for all court users, as well as consultation with the profession.
  • Recommended the ongoing review of the Victims of Family Violence Visa, and encouraged consideration of options for the ‘reopening’ of applications under Tier 2 of the Refugee Family Support Category.
  • Noted the need for further work on regulation of lay employment advocates, and a review of the Holidays Act 2003.
  • Advocated for a full review of the Accident Compensation Scheme, as well as interim improvements to promote access to justice.
  • Promoted the importance of following the Generic Tax Policy Process (or something similar) and good legislative process when developing tax law reform.
  • Recommended progressing the review of the Copyright Act 1994, and a full review of the impact of artificial intelligence on intellectual property rights.

The Law Society will continue to meet with Ministers, officials, and other stakeholders to progress these priorities. The Law Society’s Law Reform Committees are heavily involved in identifying these priority areas and lead the profession’s contributions on resulting reforms.

Probate delays

In 2023, lawyers raised concerns with the Law Society and its Property Law Section about delays in the processing of probate applications. These delays were causing stress for both lawyers and clients and impacting significantly on the handling of estates. Following a call for feedback from the profession, the Law Society formally raised these concerns with the Ministry of Justice and met with officials to discuss the steps that had been taken to improve process and address the backlog of applications.

Further reporting from the Ministry of Justice indicated that these process improvements had seen results; however, it was clear from the profession that this situation would persist while the threshold at which a grant of probate is required remained at $15,000. This figure has been in place for more than a decade, and with it failing to reflect today’s economic reality, more applications are having to be made.

In late February, the Law Society wrote to the Minister of Justice urging prioritisation of reform of the probate threshold. The Law Society will keep the profession updated on progress.

Duty Lawyer review

Following the announcement of a 17% increase to the duty lawyer remuneration rate in July 2023, a broad-scope review into the duty lawyer scheme began in September 2023. Duty lawyers are an essential part of a fair and robust criminal justice system. They are critical to ensuring access to justice for those defendants who first appear in court.

The Law Society is committed to working with the Ministry of Justice and the judiciary... to ensure we attract and retain duty lawyers and improve the duty lawyer service, enabling access to justice to those who need it most

The review, commissioned by the Legal Services Commissioner, is being led by an external agency with oversight by an expert advisory group comprising members of the legal profession, the Public Defence Service, the judiciary, and a manager from the District Courts. The Convenor of the Law Society’s Access to Justice Committee is on this advisory group. The Ministry of Justice will engage with duty lawyers and other key stakeholders throughout the review process.

The Law Society is committed to working with the Ministry of Justice and the judiciary to look at creative solutions to ensure we attract and retain duty lawyers and improve the duty lawyer service, enabling access to justice to those who need it most. This will be primarily driven through the review but also includes changes to the duty lawyer scheme which are now being piloted in a range of District Courts as part of the Criminal Process Improvement Programme (a judicially led justice-sector initiative to improve access to justice in the District Court by looking at best practice ways to address backlogs and ease pressure on court time).

Reports under section 27 of the Sentencing Act 2002

The Law Society’s Criminal Law and Access to Justice committees closely monitored a proposal to remove legal aid funding for reports prepared under section 27 of the Sentencing Act. These reports provide a comprehensive account of relevant personal, family, whānau, community and cultural factors, and the relationship between those factors and offending behaviours. They assist judges in determining fair, reasoned, and individualised sentences. With the removal of funding, only those defendants who can afford to privately commission the reports will benefit from such insights. Defendants receiving legal aid will be disproportionately impacted – a breach of fundamental rights.

The Law Society advocated strongly for the retention of legal aid funding, encouraging the Government to instead proceed with work already underway to review the content and use of the reports, and was disappointed the legislative amendments proceeded under urgency and without a select committee process for public submissions. The Law Society is now working with the Ministry of Justice to understand the implications for lawyers and their clients.

Courthouse facilities and health and safety

Following several serious incidents in courthouses across the country in 2023, the Law Society continues to engage regularly with the Ministry of Justice to improve health and safety for all court users.

Last year, we canvassed feedback from lawyers throughout the country about their safety concerns in the District Courts, High Courts, and the Family Courts. All feedback was provided to the Ministry of Justice, and we’ve since met regularly to work through this and identify what can be done within the constraints of both budget and building structures.

Some feedback has already been actioned, and some remains under investigation. Where possible, work has taken place to increase visibility in meeting and interview rooms. However, there are some improvements that are not possible within certain courthouses (due to their design and/or historic status), and others that cannot be accommodated within available budget.

The Law Society continues to work with the Ministry and the courts to improve the facilities available to lawyers, for example securing a Lawyers Room in the Taupo District Court and installing Law Society Wi-Fi to enable access to the Law Society library’s online resources.

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