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The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand.
Purpose
The purpose of the Law Commission is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. In developing its proposals, the Commission recognises the Treaty of Waitangi as the founding document of New Zealand, and takes account of community and international experience.
Objectives
The Commission’s objectives are to improve:
Outputs
Under the output class: Policy Advice, the Commission does its work through:
The Commission’s recommendations affect many people. In this sense, the Commission’s “customers” are:
– consider the recommendations made in the Commission’s reports, or Bills based on draft legislation recommended in the Commission’s reports, and
– draw on the Commission’s reports and other advice and consider submissions from the Legislation Advisory Committee in reviewing other aspects of the law of New Zealand.
Projects for the reform and development of the law form the greatest part of the Commission’s work. Many address topics which are complex and broad-ranging. They involve thorough research and revision of the law, often over an extended period and with wide and open consultation with all affected interests.
Projects may be taken up either at the request of the Minister of Justice or Cabinet, or on the Commission’s own initiative.
At the end of a project, the Commission reports to the Minister of Justice with its recommendations on changes to the law or its administration. Draft legislation will be included where necessary. The report is tabled in the House of Representatives, and then published.
A list of projects and their terms of reference appears at Appendix A.
Evidence Law Reform
The codification of evidence law is a complex and very substantial exercise. Since beginning work on the project in 1990, the Commission has published six preliminary papers, on the following topics:
Principles for Reform (NZLC PP13)
Codification (NZLC PP14)
Hearsay (NZLC PP15)
Expert Evidence and Opinion Evidence (NZLC PP18)
Documentary Evidence and Judicial Notice (NZLC PP22)
Privilege (NZLC PP23)
Submissions on the two most recent papers, Documentary Evidence and Privilege, were received and analysed during the year. Further consultation took place with lawyers concerning the Commission’s proposals on legal professional privilege.
Two further papers are in preparation: first, on the complex topic of evidence of character and credibility; and secondly, on the question of competence and the rules necessary to protect vulnerable witnesses when giving evidence in court.
A further evidence-related paper, on the privilege against self-incrimination, is to be published in the coming year as part of the Commission’s criminal procedure project.
Many other aspects of the law of evidence are being addressed during the project by internal research, resulting in limited circulation of papers to selected practitioners, judges, academics and government agencies. These topics include the law of identification evidence, the application of the rules of evidence in tribunal proceedings, the rules for the questioning of witnesses in court, and waiver. Substantial progress was made in advancing research and writing on these aspects of the project. It proved difficult in some instances, however, to complete the formulation of policy.
The completion of the evidence project is a priority for the Commission. The objective is to finish work on the project, and produce a final report with a draft evidence code, during the 1997/98 year. The project promises to bring about substantial improvements in dispute resolution within the courts system, with consequent cost savings to litigants and taxpayers.
Review of Criminal Procedure
The Commission’s reference from the Minister of Justice on criminal procedure requires it to review “the whole of the law governing criminal procedure”. The Commission has been working on the reference in stages.
A report was published in October 1994 on Police Questioning (NZLC R31), which proposed a three-pronged reform of the law:
The proposed reforms aim to achieve greater accessibility and clarity of the law, stated in a coherent, principled set of legislative provisions.
As with the preliminary paper which preceded it (Criminal Evidence: Police Questioning, NZLC PP21), the report has generated widespread public debate and comment within the legal profession. Several opportunities arose for the Commission to clarify its proposals, and to respond to articles and letters commenting on the report.
A report dealing with the right of silence and confessions (which were also discussed in Criminal Evidence: Police Questioning) has yet to be published. Research on a related topic, the privilege against self-incrimination, was largely completed during the year and will result in a discussion paper in 1996.
The next stage of the Commission’s review of criminal procedure encompasses the prosecution of offences and the alternatives to prosecution. Research on the prosecutions system, begun in the previous year, was completed at year’s end, and the drafting of a discussion paper containing proposals for reform was well advanced. The discussion paper will address not only the question of who is responsible for making decisions to prosecute, and what accountability there should be for decisions pertaining to prosecutions, but also the question of what other input there should be into prosecution decisions and what alternatives to formal prosecution should be considered.
Alternatives to prosecution will be taken further in a discussion paper on diversion, for which preliminary research was completed during the year. The diversion project will consider the criteria for diversion, the forms diversion might take, diversion policies, and who should have power to issue directions or guidelines.
The Commission also intends to undertake a project looking at aspects of the jury system. Trial by jury is a subject of mounting public debate. Preliminary research has been aimed at identifying which aspects of the system require urgent examination.
In this and other aspects of its criminal procedure work, the Commission aims to co-operate with the several other government agencies with responsibilities in the criminal justice area. Such co-operation will be increasingly important as the new Ministry of Justice and the Department for Courts develop their roles.
Law of Succession
Following extensive discussion and consultation in the first part of 1994, the Commission was able to define its objectives for the succession project and to make substantial progress in researching and developing policy options for reform.
The project has three main aspects:
Important issues of social and legal policy are raised by all three areas. The research phases of the project have resulted in 16 internal research papers and a further 10 papers developed for the project by external consultants.
In the coming year the project will publish a discussion paper on testamentary claims, following which the law of wills and the law of intestacy will be addressed.
Of special concern is the law of succession as it applies to Maori families. This is an area of intense interest to Maori, and laws affecting succession to Maori property should recognise that the fundamental principles of tikanga apply amongst Maori people. The Commission has engaged Professor Pat Hohepa and Dr David Williams as consultants to advise on this aspect of the project and will, in the coming year, be consulting with Maori at regional and national levels.
The Commission aims to have the succession project substantially completed in 1996.
Community Safety
The Commission published its report Community Safety: Mental Health and Criminal Justice Issues (NZLC R30) in August 1994. It had earlier made submissions to the Social Services Select Committee on the Mental Health (Compulsory Assessment and Treatment) Amendment Bill, which had been introduced to Parliament shortly after the Commission’s community safety reference was received from the Ministers of Justice and Health.
The publication of the Commission’s report was followed by two seminars, held in Auckland and Wellington during September, and a further submission to the Select Committee in November 1994. The seminars in large part confirmed the direction taken by the Commission in its report: that a new detention regime for dangerous offenders, separate from the existing criminal justice and mental health systems, was not necessary and that, for this reason, the Amendment Bill ought not to proceed. The Commission reiterated, in its further submission to the Select Committee, its view that improvements in mental health services required appropriate resources, staffing, training, and implementation, rather than legislative change.
The Amendment Bill remained before the Select Committee at the end of the year under review.
Women’s Access to Justice: He Putanga Mo Nga Wahine Ki Te Tika
From the concept outline which was developed in the first part of 1994, and following extensive preliminary consultation with women throughout New Zealand, the Women’s Access to Justice project formally became part of the Commission’s programme in May 1995.
The strategy of consulting extensively during the formative stages of the project was both innovative and remarkably successful. The consultations shaped the terms of reference and prioritised the areas for research. Many meetings were held, with high attendance and substantial interest from women of all backgrounds. Major themes emerging from the consultations were access to legal advice, the difficulty of accessing legal information, and the monocultural and male-dominated nature of the legal system.
The first stage of the project itself, following the adoption of its terms of reference, will involve further gathering of submissions and consultation with Maori and non-Maori women.
The Commission has appointed Mrs Hepora Young (Te Arawa, Waitangi Tribunal Member and historian) to lead Te Roopu Uho, a group appointed to assist the Commission to plan its consultation strategy with Maori. Members of the group are Ria Earp (Te Ohu Whakatupu, Ministry of Women’s Affairs), Ripeka Evans (Te Mangai Paho), Charmaine Ross (Wellington Community Law Centre), Ina Edwardson (Maori Women’s Welfare League) and Philippa McDonald, a senior legal research officer at the Commission.
Extensive preliminary work has also been undertaken to give the project a multicultural dimension.
The Commission intends to report to the Minister of Justice by the end of 1997 with recommendations for:
which will promote the just treatment of women by the legal system.
Joanne Morris (the Commissioner responsible for the project) is also a member of the Judicial Working Group on Gender Equity, chaired by the Chief Justice and Justice Silvia Cartwright. The Group intends to develop an education programme for judges to improve their understanding of gender issues. The Commission is assisting the Group with the first stage of its project, which involves the collation and research of New Zealand material.
Apportionment of Civil Liability
In 1992 the Commission published a discussion paper (NZLC PP19 – Apportionment of Civil Liability) which recommended the retention of joint and several liability for loss or damage caused by the acts or omissions of two or more persons.
This issue impacts substantially on the question of the liability of auditors and others for acts or omissions in their professional capacity. Reforms proposed in Australia have favoured a proportionate liability rule, and this has been the preference of professional bodies in New Zealand.
During the year, the Commission re-examined its 1992 proposals in light of the Australian developments, and with the benefit of an economic analysis of the proportionate liability rule. By year’s end, it was engaged in further discussion with the New Zealand Society of Accountants and the New Zealand Law Society about the proposals.
The Commission does not at this stage intend to publish a formal report on this project because of the broader context in which it now sits. It is, however, keeping the Minister of Justice informed of the options for reform.
Official Information Act 1982
The Commission was unable to bring its draft report on the Official Information Act to completion during the year, in part because of other priorities and also because of changes in the political environment in the lead-up to proportional representation. Those changes have particular implications for the Act’s provisions on the disclosure of information relating to the policy process (one of the issues needing to be addressed under the Minister’s reference).
Legislation
The Commission has both a standing reference from the Minister of Justice and a statutory duty to advise on ways of making the law of New Zealand as understandable and accessible as is practicable. The attainment of this goal will result in significant long-term savings in costs for everyone concerned with making, administering or applying the law.
Work on developing a Legislation Manual was given priority this year. Substantial progress was made towards completion of the parts of the Manual dealing with the structure of legislation and matters of style. Other parts of the Manual, which will deal with the development of legislation and with matters relating to recurring policy and drafting questions, are also in preparation but will be published at a later stage.
The completion of the Manual was held up by a combination of insufficient resources in the Commission and delays in obtaining feedback on draft material circulated for comment. The first instalment should be published in the coming year.
International Obligations
The focus of the international obligations project is to promote awareness of, and compliance with, New Zealand’s international obligations, as well as to understand and, as appropriate, to promote the internationalisation of the law itself.
The Commission has been working on a guide to international law and the making and operation of New Zealand law, which includes reference to materials and sources of help to lawmakers in finding, interpreting, and understanding our international obligations. During the year, with the help of many government bodies whose work is affected by New Zealand’s international obligations, progress was made to the point where a draft of the Guide was circulated to interested persons for comment. The final version will be published in the coming year.
A paper on the making, acceptance and implementation of treaties was also drafted and circulated to interested persons for comment.
The Commission continued its association with the Pacific Economic Co-operation Council (PECC) and had a large involvement in organising a conference on harmonising international law, in conjunction with PECC and other bodies. The conference was held in Auckland in July 1995.
Other projects
The Commission currently has more projects on its programme than it has resources to devote to them. Regrettably, several projects of lower priority received little attention during the past year. The Commission intends a full review of its programme in the coming year as part of a wide-ranging strategic review (see “Future Outlook”, page 17).
A possible project
A possible project referred to in last year’s Annual Report concerned the law permitting creditors to set aside fraudulent conveyances (at present contained in section 60 of the Property Law Act 1952). Comment received on a Commission paper outlining the advantages and disadvantages of reforming this area of the law led the Commission to decide not to undertake a project at this stage.
Implementation of the proposals made by the Commission cannot ever be guaranteed. Follow-up activity, aimed at explaining, gathering support for, and influencing the implementation of, proposals is therefore an important and legitimate endeavour.
Most reports of the Law Commission recommend legislative change to one degree or another. Progress was made on implementing three Commission reports during the year:
The Sale of Goods (United Nations Convention) Act 1994, which brings the United Nations Convention on Contracts for the International Sale of Goods into New Zealand law (see NZLC R23, 1992), received the Royal assent. (The Act came into force by Order in Council on 1 October 1995.)
The Commission’s proposals for the reform of the law on arbitration (NZLC R20, 1991) were the subject of extensive ongoing activity. (This led to the introduction of the Arbitration Bill on 20 September 1995.)
The proposal that the aspects of the law on damages known as the rule in Bain v Fothergill and the rule in Joyner v Weeks be abolished (NZLC R19, 1991) was addressed by the Law Reform (Miscellaneous Provisions) Bill (No 3), introduced in September 1994. The provision abolishing the rule in Bain v Fothergill was enacted as the Property Law Amendment Act 1994. The rule in Joyner v Weeks was, however, reformulated by the Court of Appeal in Maori Trustee v Rogross Farms Ltd [1994] 3 NZLR 410, in a way which achieved the substance of the Commission’s proposal. On the Commission’s further recommendation, the legislative abolition of this rule did not proceed.
In the general sense, the Commission is disappointed at the slow rate at which its proposals are being introduced into the House as Bills. So far as it is aware, all but one of its reports have broad support and are not the subject of any political disagreement. The exception is the report on Police Questioning, NZLC R31.
Reports awaiting implementation are as follows:
Limitation Defences in Civil Proceedings (NZLC R6, 1988): one area of difficulty was addressed in the Building Act 1991, but problems which the Commission’s proposals would have resolved continue to arise and to cause unnecessary litigation.
A New Interpretation Act (NZLC R17, 1990): enactment of this legislation would help to make the law more accessible; the justice policy issued by the National Party before the 1993 election included a new Acts Interpretation Act.
Contract Statutes Review (NZLC R25 1993): useful detailed improvements to the statutory aspects of the law of contract, which would be of benefit to the commercial sector.
Aspects of Damages: The Award of Interest on Money Claims (NZLC R28, 1994): a more efficient, clearer and principled set of rules which would contribute in a major way to the resolution of commercial disputes.
A New Property Law Act (NZLC R29, 1994): a substantial rewriting of law of great practical importance, to make it more accessible and wider in its coverage, and to modify unsatisfactory parts of it.
Police Questioning (NZLC R31, 1994): see the summary under the heading of “Review of Criminal Procedure”, at page 4.
Furthermore, the Commission is aware that three other reports are the subject of current consideration. They are:
A Personal Property Securities Act for New Zealand (NZLC R8, 1989): by the Ministry of Commerce.
Criminal Procedure: Part One – Disclosure and Committal (NZLC R14, 1990): by the Criminal Practice Committee.
The Format of Legislation (NZLC R27, 1993): by a committee convened by Chief Parliamentary Counsel following a positive report by the Justice and Law Reform Select Committee (see 1994 Annual Report of the Commission, page 17) and at the request of the Standing Orders Committee. The Committee met only twice during the year, on 3 and 21 November.
In all cases the Commission has undertaken extensive research and consulted widely. That consultation involves much time and effort volunteered by many able and willing people in the professions and in the wider community. The process confirms, in each case, that the proposals relate to areas of the law which are broadly considered to require reform. People who have responded in this way frequently express disappointment that the work to which they have contributed has not resulted in change.
Implementation of most of the reports listed above would be consistent with the Government’s current strategic result areas for the public sector, in particular by reducing the costs and legal uncertainties of commercial activities, and making the law more accessible, and hence contributing to fair and efficient conduct of business.
The Law Commission’s advisory work now accounts for 15 percent of the direct output hours worked by Commissioners and researchers. (The other direct outputs are project work, follow-up, and work for the Legislation Advisory Committee.) Over the past year the work continued to grow in volume and variety.
Some of the advisory work is connected with work on current projects, or with work on which the Commission has expertise by reason of its earlier reports. In other cases, it reflects increasing awareness that the Commission is a source of objective advice based on a wide view of the law and its administration. Advice is frequently sought by Ministers, officials and public sector agencies on whether their proposals accord with general legal principle and mesh well with the law as a whole.
The Commission aims to provide high quality, timely and relevant advice on each matter it becomes involved in. It expects its work to contribute, in the broader sense, to good lawmaking, and to improve knowledge and understanding by officials about the importance of constitutional and public law principles in legislation.
Eighty-seven new requests for advice were received by the Commission during the year. Many, such as the Commission’s participation in the review of the Department of Justice, involved substantial amounts of work. Twenty-five matters remained ongoing or incomplete by year’s end. A list of examples of work undertaken appears at Appendix B.
The Commission’s contribution to the work of the Legislation Advisory Committee takes two forms: first, through Sir Kenneth Keith’s participation as a member of the Committee; and secondly, through research and secretarial resources made available to the Committee for the preparation of submissions on Bills.
The Commission also provides office space and facilities for the Chairperson of the Committee, Dr Mervyn Probine.
As with its advisory work, the Commission’s objective in contributing to the Committee is to help ensure that each item of legislation introduced to the House gives effect to the policy of the legislation, consistent with general principle.
During the year under review, the Committee made submissions on 30 Bills: see Appendix C.
The Commission has a statutory obligation, in making its recommendations, to take into account te ao Maori (the Maori dimension). In giving effect to this objective, the Commission recognises the Treaty of Waitangi as the founding document of New Zealand.
Last year, the Commission reported the establishment of a Maori Committee with terms of reference directed at advising the Commission on consultation with Maori, assisting it to identify law reform and development projects of interest or concern to Maori, and advising of the priority for projects and processes for their development.
The original members of the Committee were Bishop Manuhuia Bennett, Judge Michael Brown, Professor Mason Durie, and Mrs Whetu Wereta. During the year, Chief Maori Land Court Judge Edward Durie and Mrs Hepora Young generously agreed to join as additional members.
The Committee acts as a conduit for the Commission’s relationship with Maori. It does not purport to speak for Maori. Its advice on how the Commission should consult with Maori has been invaluable, and significant progress was made during the year in establishing structures and processes within Commission projects which will enable proper consultation to take place.
Te ao Maori is of particular importance to the Commission’s current work on criminal procedure, succession and women’s access to justice. The terms of reference of the projects on criminal procedure and women’s access to justice both refer expressly to the Treaty of Waitangi (see Appendix A).
The Maori Committee also began to give active consideration to possible law reform and development projects which would be of particular interest or benefit to Maori. One such possibility was a project to develop a continuing and contemporary jurisprudential framework of Maori custom law. The need was identified in terms of:
thereby increasing understanding of Maori concepts and values among members of the wider Maori and Pakeha communities.
With the support of the Commission, the Maori Committee decided to promote a research project encompassing these objectives. It was agreed that, because it would involve primary research rather than secondary or applied research, the work could not be undertaken as part of the Commission’s programme. Other resources would be required, and these were the subject of ongoing consideration by the Committee by year’s end.
Such a project, if it can be initiated, would be of substantial value to the development of New Zealand jurisprudence.
The Commission continues in its search for a bicultural framework for its own operations. Again with the Maori Committee’s help, it has implemented internal policies directed at this need. Any measures will, however, be of limited value as long as the Commission continues to have no Maori members and only a small number of Maori staff.
These issues will receive a heavy emphasis in the Commission’s strategic planning over the course of the coming year.
Legislative Issues
The Commission has serious concerns about the quality of some legislation. Much of the advice which it gives to departments and other agencies relates to the formulation of legislative proposals. The legislation itself is then observed at the select committee stage. Six issues recur.
First, inadequate problem definition. Framing the problem too narrowly or too broadly, or wrongly identifying it, results in policies and legislation which are inappropriate and ineffective.
Secondly, an assumption that legislation is needed when it may not be. This may be the result of inadequate and delayed legal advice.
Thirdly, a failure of the legislation to give effect to the intended policy. This is often a reflection of the first problem and the next.
Fourthly, premature introduction of legislation. This is a growing problem, in the Commission’s view. It leaves large and complex issues to be grappled with by select committees. Resolving those issues takes time and resources which are more profitably used at the drafting and policy development stages. Underprepared legislation also compromises the public submissions process, especially when the need for further development is acknowledged at the time of its introduction.
Fifthly, a failure to comply with accepted constitutional principle. One example is the use of open-textured drafting. This could be a legitimate choice (for example, to leave the development of the law in certain areas to the courts), but there must as well be proper and comprehensive policy development before the legislation is introduced.
Sixthly, a failure to draft law which is as understandable and accessible as possible. Improvements can be observed, but much legislation could be written more plainly, with major advantages to those affected by it.
The Commission welcomes comment on how the quality of lawmaking processes might be improved. Its Legislation Manual, when published, should provide guidance in problem areas. Even in draft, the document is having a useful impact.
Unplanned Absences by Commissioners
In July 1994, Sir Kenneth Keith and Justice Wallace were invited by the Minister of Justice to assist with the review of the Department of Justice: Sir Kenneth in relation to the Department’s policy advice functions (now the responsibility of the Ministry of Justice) and Justice Wallace in relation to the review of court services (which resulted in the establishment of the Department for Courts). Their responsibilities were very time-consuming.
The President and members of the Commission have a range of other official duties. For example, Sir Kenneth Keith continued as a member and Vice-President of the International Humanitarian Fact-Finding Commission, which was established under the First Additional Protocol to the Geneva Conventions for the Protection of War Victims. Justice Wallace divided his time between the Law Commission and his duties as President of the Electoral Commission. He also continued as a member of the Courts Consultative Committee, creating a valuable link with the Law Commission. Joanne Morris sat on the Waitangi Tribunal and also (until 1994) as a member of the Broadcasting Standards Authority.
These types of activities are very beneficial to the Commission. At the same time, unscheduled and prolonged absences from the Commission are disruptive. Regular Commissioner input is essential to enable projects to be managed efficiently, and Commissioner unavailability over long periods of time is both frustrating to research staff and a significant cause of delay.
Other activities
Members and staff of the Commission participated during the year in many other activities which encouraged understanding of the law, its accessibility, and the resolution of disputes. Particular encouragement was given to the activities of the Law and Economics Association of New Zealand, of which Professor Richard Sutton became President in June 1995. Considerable effort was also devoted to the development of mediation as a method of resolving disputes, notably by means of a national seminar held in late 1994 which discussed the possibility of a national strategy on mediation.
The membership of the Commission remained unchanged during the year under review.
In December 1994, Alison Quentin-Baxter QSO retired after eight years as the Commission’s Director. As the first holder of that office, she made huge contributions to the methods, philosophy and spirit of the Commission. Alison Quentin-Baxter drew most generously on her high personal and professional qualities and wide and wise experience as a lawyer, especially in the public sector, in New Zealand, the Pacific and more widely. She moved on to further challenges (most immediately with the reviews of the New Zealand honours system and the Constitution of Fiji) with the best wishes of her friends and colleagues in the Commission.
The Commission’s new Director, from February 1995, is Robert Buchanan, formerly Director of Legal Affairs at the New Zealand Law Society.
Four members of the research staff, Phil Shattky, Penelope Stevenson, Hamish Dempster and Sachin Zodgekar, left the Commission during the year. Two long-serving members of the administrative staff, Lynette Bridgeman (secretary) and Glenys Bunkall (receptionist) also left during the year, as did Rachael Brown, a part-time filing and library clerk.
The Commission acknowledges the distinctive contribution made by each of the departing staff members to its work.
A list of the current members and staff of the Commission appears at Appendix D.
The Commission will face a number of major changes in its working environment in the coming years. These changes are in:
In May 1995 the Commission decided to embark on a comprehensive strategic review of its aims, objectives, work programme, and working methods. It engaged a consultant, Mr Miles Shepheard of Shepheard Associates Ltd, to advise and assist in the review. By year’s end the preliminary stages of the process had been completed, and the Commission has the objective of completing a strategic business plan, together with a revised work programme, by October 1995.
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