New Zealand Law Commission
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
THE LAW COMMISSION is an independent advisory body, established by statute and funded by the taxpayer. Its main function is to undertake the systematic review, reform and development of the law of New Zealand.
The Law Commission’s purpose 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.
The Mäori name of the Commission, Te Aka Matua o Te Ture,1 means “the main vine of the law”. It reflects the legend of Tawhaki, who was exhorted to climb to the heavens by clinging to the main vine with roots in the earth, not to the tendrils swaying in the air. The name is apt for the Law Commission, which is committed to law aimed at progress yet grounded in principle and practical reality.
In its work as a law reform body, the Law Commission seeks to improve:
It does this by providing advice and recommendations which:
In making its recommendations, the Commission takes account of te ao Mäori (the Mäori dimension) and gives consideration to the multicultural character of New Zealand society.
Under the output class: Policy Advice, the Commission does its work through:
For reports on each of these areas of activity, see pages 7 to 18.
In February 1996, the Law Commission completed its first 10 years of work. The tenth anniversary was marked in April by a well-attended seminar on the opening day of the New Zealand Law Conference in Dunedin. Speakers were the retiring President of the Commission, Hon Justice Sir Kenneth Keith, and Dr Jocelynne Scutt, who has had a long association with law reform work in Australia. Sir Kenneth’s paper, which was in many senses a valedictory address following his departure to take up appointment as a Judge of the Court of Appeal, reflected on the Commission’s first decade. It is reproduced in this Annual Report (see Appendix A).
Sir Kenneth’s departure, and that of Hon Justice John Wallace, who had been a member of the Commission since 1989 and its Deputy President since 1991, were important events in the year under review. Appropriate tributes appear later in this report. The appointments of Her Honour Judge Margaret Lee as a new Commissioner in April, and of Hon Justice David Baragwanath as the new President from October 1996, continue the tradition of appointing outstanding individuals as members of the Commission.
It was a year of intensive activity in all Commission projects. Two major reports in the public law area were very well received, and a stream of discussion papers will follow in the first months of the coming year. The Commission’s consultation work in its succession and women’s access to justice projects continued to break new ground and produced a remarkable amount of useful and interesting information.
The Commission’s publication policy and processes were reviewed during the year. A major result was the decision to lend its publications a more distinctive identity and to create more flexible kinds of publications. The production of a quarterly newsletter, Te Aka Körero, was another significant, and widely welcomed, outcome. The aim of the newsletter (whose title is derived from the Mäori name for the Commission) is to inform a wide range of people about the Commission’s activities, as well as to foster links with its likely audiences and with those who contribute to its work.
It was also a year of new relationships, principally with the Ministry of Justice and the Department for Courts. The Commission is especially grateful to the Secretary for Justice, John Belgrave, for the support and encouragement he has shown to the Commission since he took up office.
New directions lie ahead for the Commission, and these are outlined in the strategic issues section of this report.
In the 10 years since the Law Commission began its work, the environment within which it operates has changed substantially. Most recently, the Ministry of Justice has been established to provide policy and strategic advice across the justice sector. Significant policy functions have also been assumed by the new Department for Courts. Commercial law reform functions have been transferred to the Ministry of Commerce. These developments have affected both the Commission’s role and its relationships within the justice sector.
In response, and in preparation for further change arising from the move to a proportional electoral system, there has been an extensive strategic review of the Commission’s role and operations. The review, undertaken by the Commission itself but involving wide consultation, was a major feature of the year.
The review found strong support for the continued existence of an independent, specialised law reform body within the justice sector. For the future, five principal influences on the Commission’s work were identified.
The first was the need for co-ordination of law reform activities across the justice sector. For the Law Commission, this means working closely with the Ministry of Justice and the Department for Courts, in particular, to find ways of sharing expertise and devising work programmes which are complementary and avoid unnecessary duplication of effort.
Second, governments face a broad and growing agenda of constitutional issues. The role of bodies such as the Law Commission in addressing these issues needs careful thought and development.
Third, the methods used in law reform work require constant improvement. The work must embrace a multidisciplinary perspective, and be backed up by effective consultation.
Fourth, there is the changing technological environment. We live in times when communication on a global scale is reducing the barriers between states and internationalising the conduct of business. The law itself is responding to this, and at the same time the face of legal research is changing with the growth of the Internet and the development of electronic legal databases.
Finally, the new political environment, arising in part from the introduction of proportional representation, will affect both the Commission’s ability as an independent body to influence the political process and the availability of parliamentary time to implement its proposals. New ways must be found of securing outcomes for the Commission’s work, whether in legislation or by other means.
During the year under review, the Commission modified the way in which it identifies and takes on work. New criteria, developed in consultation with the Minister of Justice, state that the Commission will take on new areas of project work where:
– its independence,
– its commitment to look at law in its economic, social and cultural context, and to consult widely and openly with all affected interests,
– its strengths as a research organisation and as a place of collective legal knowledge and skills, and
– its recognition of the importance of integrating legal studies with other disciplines;
New procedures for consulting with the Minister of Justice and the Ministry of Justice were also agreed during the year, for the purpose of shaping the Law Commission’s annual work programmes. Such procedures are a welcome development. They were set in place by a Memorandum of Understanding entered into by the Commission and the Minister of Justice in June 1996.
In time, these procedural developments will influence the nature of the work which the Commission undertakes. Its ability to handle major, long-term, law reform projects is and will remain one of its strengths. That work can, however, become overburdening and reduce the Commission’s ability to take on new work. The Commission has had considerable success in responding to urgent needs (as shown, for example, by its projects on Community Safety: Mental Health and Criminal Justice Issues (NZLC R30, 1994) and, in the year just ended, on Crown liability issues: see page 12). Its function of advising on aspects of the law being reviewed by other public sector agencies (see page 17) is also a significant part of its activities. But that work has sometimes been undertaken at the expense of other priorities.
Future work programmes are likely to allow more balance between short and long-term projects, improving the Commission’s ability to respond, when required, to important issues of the day. Regular consultation about work programmes will be especially valuable in this context.
The main priority in the Commission’s work over the coming three years will be to complete three large projects in accordance with the following timetable:
The completion of existing work on criminal procedure has equal priority with those projects, and the forthcoming review of the terms of the criminal procedure reference (see page 8) will also enable further planning to be done in that area.
The Commission’s three-year plan also allows for resources to be devoted to:
Outside the actual work programme, the strategic review resulted in seven major initiatives to improve the Commission’s ability to respond to its current and future working environment. Work began in the year under review to put them into effect. They are set out in Appendix B.
A strategic business plan, to be published in the first part of the 1996/97 year, contains more information about the review, its findings, and the implementation of change. The plan and its implementation will be further reviewed towards the end of the coming year.
The Commission wishes to thank all those who participated in its strategic review, and to acknowledge the help and support of its consultant, Miles Shepheard. The review was a very worthwhile and timely initiative, and the Commission now feels well placed to move into its second decade of work.
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.
Projects may be taken up either at the request of the Minister of Justice, 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 is included where necessary. The report is tabled in the House of Representatives, and then published.
One new project was taken on during the year (the development of guidelines on Mäori custom law, on behalf of the Mäori Committee), and priority was given to another (the legal status of the Crown) at the Minister’s request. A list of current projects and their terms of reference appears at Appendix C. The work programme was reviewed in 1995, and it was decided as a result to drop three old projects: tenures and estates in land, “unfair” contracts, and foreign interest immunity.
The completion of the evidence project remains a priority for the Commission. During the course of the year, a significant amount of progress was made in key areas. The Commission personnel working on the project also changed. Two new members of the research staff, Elisabeth McDonald and David Calder, were recruited specifically to complete work on the draft code and to manage the project. Judge Margaret Lee took over as convening Commissioner on the retirement of Justice Wallace.
Progress was made in reviewing submissions on the six preliminary papers already published, and completing work on the two still to come: one covering the law dealing with evidence of a witness’s character and credibility, and the other the rules governing evidence given by children or other vulnerable witnesses. They will appear in the first half of the coming year.
Work also continued on many other aspects of the project which are not intended to become formal publications. Papers on these matters will instead be circulated among smaller audiences. They include the rules governing the course of the trial, the use of prior statements in questioning a witness, the use of evidence in tribunals and other administrative bodies, and identification evidence. Because the codification covers the whole of the law of evidence, there are also many other smaller topics which must be researched before the code can be finalised.
The Commission intends to have finalised policy on the code by May 1997, and to publish its final report, with draft code, in early 1998.
In the year under review it was the Commission’s objective to complete work on two major papers under the criminal procedure reference:
This objective was substantially met and both papers will be published early in the 1996/97 year.
Last year, work commenced on a new project concerning juries in criminal proceedings. In part, the timing of the project was in response to mounting public debate about aspects of the jury system. In November 1995 an issues paper was sent to many individuals, groups and organisations. Many submissions were received, as a result of which the project is addressing the following issues of importance:
The Commission will publish a discussion paper by December 1996, to be followed later by a final report.
Work on diversion and alternatives to prosecution had a lower priority during the year, although some progress was made. It will have high priority in the coming year. The Commission also intends to publish its final report on the right of silence and confessions (which was one of the topics addressed in the 1992 discussion paper Criminal Evidence: Police Questioning (NZLC PP22)).
The terms of the criminal procedure reference date from 1989. With the agreement of the Minister of Justice, they are now under review. By January 1997, the Commission will have consulted with other government agencies in the criminal justice area, and completed a revision of the terms of reference. The review will take account of current priorities in criminal procedure as well as the interests of all agencies, including the Commission, which are working in the area.
The Commission’s work on the succession project ranged over the three main aspects of the project:
During the year a preliminary paper on testamentary claims was written, which draws on the consultation and research papers completed in previous years. (The paper, which includes draft legislative proposals, was published in August 1996, together with a shorter companion document which has the aim of reaching a larger audience.)
It has become apparent that the issues relating to a dead person’s general property are quite different from those which relate to property handed down from ancestors. This is particularly so for Mäori. As signalled in the Commission’s last annual report, the project consulted widely with Mäori during the year at both national and regional levels. Two series of regional and urban hui were held, the first in December 1995 and the latter in May and June of 1996. A total of 14 venues were visited in order to ascertain the views of Mäori on issues of succession which are of concern to them. A number of other consultation sessions were held with individuals, Mäori organisations and groups.
The Commission was ably assisted in this exercise by its consultants on this aspect of the project, Professor Pat Hohepa, Dr David V Williams and Mrs Waerete Norman, and by the hui organiser, Ms Marina Sciascia. Proposals for reform in areas of concern will be discussed further in the coming year, and a preliminary paper will be issued which reflects the views expressed at the hui and puts forward proposals which are consistent with current trends in Mäori thinking on this subject.
Treaty of Waitangi considerations apply especially strongly to this part of the reference, and the Commission is proceeding with care.
Research was also carried out on the law of wills. After some preliminary consultation is completed, a paper will be distributed in the coming year. The project will draw substantially on the Uniform Succession Laws Project in Australia, and Professor Richard Sutton (the Commissioner responsible for the project) attended two meetings of the Australian Project group during the year. The Commission recognises the value of having similar provisions in both countries, to deal with the formal validity of wills and technical matters relating to their interpretation and effect. It is working with Australian law reform commissions and other reform agencies to that end.
A paper on aspects of the New Zealand conflict of laws rules which affect matters of succession was prepared by Professor Tony Angelo as a consultant to the Commission. This work will also be developed into a paper for distribution during the coming year.
Work also commenced on intestacy with the aim of producing a discussion paper next year.
The Commission aims to have the succession project completed during the 1997/98 financial year. It envisages legislative proposals which might be enacted either separately or as part of a general statute dealing with the whole of the law of succession.
The main focus of the project this year was on consultation with New Zealand women, the legal profession and government agencies. A vital component of the consultation programme was a nationwide series of meetings with Mäori women, which was near completion on 30 June 1996. The Commission expresses its gratitude to Te Puni Kokiri/Ministry of Mäori Development for its help in arranging those meetings.
To complement the face-to-face consultation, the Commission launched a call for public submissions on 1 October 1995 and established a freephone for telephoned submissions. By year’s end over 390 submissions had been received, one third of them from lawyers.
From the wealth of information gathered during consultation, the project’s major research areas have been identified as:
Research had begun in all but the last of these areas by year’s end, and consultation papers and issues papers on a number of topics within each area were nearing completion.
As noted in last year’s report, Joanne Morris (the Commissioner responsible for the project) is also a member of the Judicial Working Group on Gender Equity. This year she joined its Seminar Planning Group, which is devising the programme for a May 1997 gender equity seminar for New Zealand judges. The Commission has been providing information relevant to both Groups’ tasks.
The focus of the international obligations project is to promote awareness of, and compliance with, New Zealand’s international obligations, and to advance internationalisation of law itself.
Activity in this area has centred on the completion and publication of a report entitled A New Zealand Guide to International Law and its Sources (NZLC R34). The report sets out the principles of international law from a New Zealand perspective, and assists with finding, interpreting and understanding international law. It provides both an outline of the law of treaties and practical information on the sources of international law.
The report will be a useful resource for lawyers, public servants, and the business community for many years to come.
The Commission is committed to continuing its work in the area of international obligations and intends to develop as a report a paper (which it circulated in draft form in June 1995) on the making, acceptance and implementation of treaties. The paper recommends greater transparency in New Zealand’s international legal processes. Work on developing it will begin in the first half of the coming year.
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. Meeting this goal will result in significant long-term savings in costs for everyone concerned with making, administering or applying the law.
In last year’s report, the Commission was critical of the quality of some legislation. Its report entitled Legislation Manual: Structure and Style (NZLC R35), published in May 1996, makes one contribution to addressing those concerns. The report comprises two parts of a proposed four-part set of guidelines for legislative drafters and their instructing officials, which have the aim of promoting more consistent and effective legislation in New Zealand. The part concerned with structure explains the function and arrangement of the principal components of an Act, such as sections and schedules. The part relating to style gives advice on matters such as the use of plain language, gender-neutral expression, and Mäori, as well as details like headings and punctuation.
The remaining parts of the manual will deal with the process of developing legislation and with recurring policy and drafting questions. Work on these has proceeded at a slower pace, one reason being the uncertainty about the impact of New Zealand’s new electoral system. Resources will be allocated to this work in early 1997, and the Commission will thus be able to maintain the momentum gained by the issue of the first two parts.
During the year, the Commission also continued its activity in the field of plain legal language. In October 1995 Bill Sewell, a member of the research staff, visited several organisations and individuals in Australia engaged in promoting plain language drafting. In April 1996 he was a commentator for a session on plain language (sponsored by the Commission) at the New Zealand Law Conference in Dunedin. In the same month, Dr Robyn Penman, Executive Director of the Communication Research Institute of Australia, visited the Commission and led a stimulating seminar on access to the law from a communication perspective.
The 1989 reference on the Crown asks the Commission to examine aspects of the legal position of the Crown, including but not limited to
and to make recommendations accordingly.
Aspects of the reference have been taken up in other projects (see, for example, A New Interpretation Act (NZLC R17, 1990), Chapter IV), and in the Commission’s advisory work. Two particular aspects arose for urgent consideration in the year under review.
First, in September 1995 the Commission was asked by the Minister of Justice to give priority to work on civil liability of the Crown and to address the specific question of what, if any, legislative response should be made to the decisions in Baigent’s Case  3 NZLR 667 and an associated case. In those decisions the Court of Appeal held that a person alleging a breach of rights stated in the New Zealand Bill of Rights Act 1990 might be entitled to monetary compensation for that breach. The Commission included in its examination of the matter the case of Harvey v Derrick  1 NZLR 314 in which it was held (again by the Court of Appeal) that, notwithstanding the general immunity of District Court Judges from suit, proceedings could be brought against a Judge by a person who had been wrongly imprisoned for non-payment of fines. Legislation was before Parliament which would have reversed the effect of that decision, and its consideration was deferred pending the Commission’s examination of the issues.
The Commission consulted extensively about the impact of these decisions and prepared a draft report, as requested, by March 1996. With the Minister’s agreement, that document was itself then circulated for comment. The matter remained under consideration at year’s end, and is scheduled for completion by the end of August 1996.
The second aspect concerned the criminal liability of the Crown and its officers and agents. It arose from the Report of the Commission of Inquiry into the Collapse of a Viewing Platform at Cave Creek near Punakaiki on the West Coast (1995 AJHR H2), which recommended that the exemptions of the Crown from criminal liability under the Building Act 1991 and the Health and Safety in Employment Act 1992 should be removed. As part of the Government’s response to the report, the Attorney-General asked the Commission to formulate (in consultation with interested government agencies) draft legislation designed to give effect to those recommendations.
The Commission advised the Attorney-General that a comprehensive approach to reform, as proposed in its 1990 Interpretation Act report, was preferable. This would involve reversing the general presumption against Crown liability (including criminal liability) under statute. The Commission’s consultation confirmed the widespread support for this reform, subject to clarification of who should be named as the nominal defendant on behalf of the Crown. The matter is now under consideration by the Government.
The Commission intends to publish a report, in the coming year, which will address both the civil and criminal aspects of Crown liability.
Other priorities in the public law area, and changes to Commission membership in April 1996, meant that, in the year under review, no progress was made in completing the report on aspects of the Official Information Act. A lack of resources will prevent the project having priority until the second quarter of 1996/97.
Work began during the year on the preparation of an outline of Mäori law concepts for use by judges, lawyers and others. For more detail on this project, see page 19.
The Commission has continued to monitor developments in this area, having advised the Minister of Justice last year about the options for reform. Some further discussion took place this year with the New Zealand Law Society and the New Zealand Society of Accountants about their preference for a system of proportionate liability. The Government is still awaiting progress in Australia before committing itself to a course of action. Shortly after the end of the reporting year, the Commission received Draft Model Provisions to Implement the Recommendations of the Co-Inquiry into the Law of Joint and Several Liability (1996) from the New South Wales Attorney-General’s office. The Commission will consider these and offer comment on them to the authors of the draft.
No work was possible this year on habeas corpus or remedies for wrongs to goods. Both projects were, however, retained on the Commission’s programme when it was reviewed in 1995 (see Appendix B). They will be taken up as resources allow.
Progress was made on implementing three Law Commission reports during the year:
A number of other reports have been the subject of consideration:
No progress was made on implementing the following reports:
The Commission continues to be concerned at the slow rate at which its proposals are being introduced into the House of Representatives as Bills. It acknowledges the support of the Minister of Justice for a greater rate of implementation, and recognises the pressures on parliamentary time which make this difficult to achieve. As noted in last year’s report, implementation of most of the Commission’s proposals 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. All of the reports were the subject of careful consideration and broad consultation. Their implementation would have widespread support.
It remains to be seen how the rate of implementation will be affected by the change to proportional representation in Parliament. The Commission is convinced of the potential for a greater output of non-contentious law reform legislation in the new environment. That will, however, require the commitment of all parties represented in the House as well as of the Government itself. The Commission intends to raise these issues further in the coming year with the Minister of Justice and interested groups.
The statutory independence of the Law Commission ensures that it can be seen as an objective source of advice on a wide range of legislative and policy proposals. The range of issues on which advice is given reflects the diversity of expertise of Commissioners and researchers.
In its advisory work, the Commission draws on constitutional and public law principles as well as its knowledge of international law, the operation of state agencies, the business sector, and courts structure. The Commission contributes to the quality of government processes and, in particular, aims to improve legislation and law reform.
Promoting a high standard in legislation is achieved by examining the soundness of policy proposals, reviewing consistency with legal principle and relevant statutes, and checking for compliance with relevant instruments in international law. The Commission is concerned to ensure that new legislative initiatives reflect relevant recommendations made in Commission reports. It also comments on the organisation, formatting, and drafting of proposed legislation.
One important category of advice relates to constitutional matters. In the year under review, advice was given on proportional representation and issues relating to Privy Council appeals. The Commission also undertakes a number of advisory tasks on a regular or ongoing basis through its membership of various organisations and contributions to law journals.
Twenty-seven new requests for advice were received during the year. The largest category comprised requests for comments on proposed and existing legislation; for example, concerning accident compensation and commercial law. Comments were also requested on several proposals at the formative policy stage, such as the Department for Courts’ proposal to appoint lay magistrates.
In addition to new requests for advice, the Commission continued work on 24 advisory tasks initiated in the previous year. Examples of new requests and of work continued from the previous year are listed in Appendix D.
The Law Commission and the Legislation Advisory Committee have overlapping responsibilities in promoting the quality of legislation. The terms of reference of the Legislation Advisory Committee enable it to scrutinise each Bill introduced into Parliament. The Committee considers issues of public law principle raised by new Bills, the extent to which the Bill’s policy is implemented by the Bill (as far as that policy is understood), as well as issues relating to official information and accessibility.
The Commission provides research, drafting and secretarial resources to the Committee for the preparation of submissions on Bills. Sir Kenneth Keith was a member of the Committee until his appointment to the Court of Appeal. The Commission also provides office space and facilities for the Chairperson of the Committee, Dr Mervyn Probine (who retired in August 1996).
During the year under review, the Committee made submissions on 28 Bills: see Appendix E.
The Law Commission’s Mäori Committee was established to assist the Commission in the development of a bicultural framework for the law of New Zealand. The Committee acts as a conduit for the Commission’s relationship with Mäori, but does not purport to speak for Mäori. Under its terms of reference, the Committee:
The Committee meets regularly, and members have also made themselves available individually to help in particular areas of the Commission’s work. The members of the Committee are Bishop Manuhuia Bennett, Judge Michael Brown, Chief Mäori Land Court Judge Edward Durie, Professor Mason Durie, Denese Henare, Archie Taiaroa, Whëtu Weretä, and Hëpora Young.
Ki a koutou o te Komiti Mäori o Te Aka Matua o te Ture, arä, ngä mema pükenga, ngä kaipupuri o ngä toi Mäori, e äwhina nei i a mätou, tënei te tuku kupu whakamihi atu nei mö a koutou äwhinatanga maha. Tënä koutou.
In 1995, as part of the Government’s consultation about the proposed abolition of appeals to the Privy Council, the Cabinet asked the Mäori Committee to comment on a report prepared by the Solicitor-General on the various options for abolition. Following a meeting between the Committee, the Solicitor-General and the Secretary for Justice, the Committee prepared a response in the form of a discussion paper. It urged further debate before legislation designed to abolish Privy Council appeals was introduced.
The Committee’s view was that abolishing appeals to the Privy Council could not be considered in isolation from other constitutional issues raised by Mäori. Those issues are, the paper said, primarily tied to the status of Mäori under the Treaty of Waitangi and the status of the Treaty within the constitutional fabric of New Zealand.
The Commission itself, after considering the paper, advised the Government that, in the face of such a strong and reasoned Mäori view, there were difficulties and even danger in the Government proceeding with abolition without further assessment of the Committee’s contentions and related consultation with Mäori.
Legislation bringing about the abolition was introduced to the House in June 1996, but there will be an opportunity for further public debate at the select committee stage.
In 1994 the Chief Judge of the Mäori Land Court, with the support of the Waitangi Tribunal, asked the Commission to help with carrying out a study of Mäori custom law. The Chief Judge was concerned that statute law increasingly called for Mäori concepts to be interpreted and applied, and that there was little reliable written material available and accessible to help the courts and others.
The Commission discussed the proposal with the Mäori Committee. The Committee supported the idea and agreed to sponsor a project, with the Law Commission providing project management and some research assistance. Initially a project was planned to look at the jurisprudence of Mäori custom law over a period of several years. Funding was not immediately available for a project of this size, but a similar project is now being undertaken at the University of Waikato with input from the Commission.
In the meantime the Mäori Committee, assisted by the Commission, is concentrating on preparing and publishing a brief outline of concepts of Mäori custom law for use by judges and others. The outline will be helpful where, for example, a court receives expert evidence of Mäori custom, or is called upon to apply custom law by statute or in the exercise of its general jurisdiction. Funding for the project is being provided by the New Zealand Law Foundation, with the Law Commission providing administrative and some research support.
The outline will draw on observations and knowledge acquired by the Chief Judge during many years on the bench of the Mäori Land Court and as Chair of the Waitangi Tribunal. Four academic commentators are providing commentary from a political science, anthropological, historical and philosophical perspective respectively. Two Mäori lawyers have been engaged to draft the outline itself.
The published material will be a starting-point for thinking and debate, not a definitive description of Mäori custom law, and will contain a select bibliography of sources of further information.
A point of dialogue with the Mäori Committee is the Law Commission’s role in debates about the place of the Treaty of Waitangi. The Commission considers that the appointment of Mäori to the Commission is a prerequisite to a greater contribution to those debates, as well as to its ability to take account of te ao Mäori in its project work. With the Committee’s support, the Commission hopes that progress can be made on the appointment of Mäori to the Commission in the coming year.
The Law Commission is able to extend its contribution to the development of law and policy through a wide range of other activities involving Commissioners and staff.
The Commission has had a central role in the Law and Economics Association of New Zealand since it was formed in 1994. It has hosted a number of LEANZ seminars, and in December 1995 it jointly sponsored, with the Association, a seminar presented by Professor Richard A Epstein entitled “The Use and Disclosure of Information”. Professor Sutton served as the Association’s President in 1995/96, and Penny Webb-Smart, a Commission researcher, was a member of the Association’s Committee. Commission staff also provided administrative support to the Association.
The New Zealand Law Conference is a significant triennial event in the legal world. In 1996 the Conference was held in Dunedin, and the Commission made a substantial contribution by sponsoring a session on plain legal language (see page 12 above) and providing a number of speakers, commentators, and session chairpersons.
The important contribution of Sir Kenneth Keith to the development of international law is well known. He continued during the year 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. In September 1995 he was a member of the New Zealand team which presented the case against French nuclear testing at the World Court.
Also on the international scene, the New Zealand Law Commission has played a major role in successive biennial conferences of Australasian law reform agencies. The 1995 Conference, hosted by the Queensland Law Reform Commission in Brisbane, was attended by two Commissioners (both of whom presented papers) and the Director.
As a result of contacts established in Brisbane, the Commission made arrangements for Ms Florence Fenton, the Director of the Fiji Law Reform Commission, to visit New Zealand in May 1996. She was able to observe the work of the Commission and contribute significantly to a number of its activities.
The Commission has valued its links with a number of committees and other bodies involved in legal development in New Zealand. They include the Courts Consultative Committee (of which Justice Wallace is a member), the Criminal Practice Committee (on which the Commission is now represented by Les Atkins QC), the Copyright Consultative Committee (of which Professor Sutton is a member), and the Judicial Working Group on Gender Equity (of which Joanne Morris is a member). In response to generous invitations by the Secretary for Justice, several Commissioners joined policy focus groups established by the Ministry to assist in the development of its work programmes.
During the year, Joanne Morris continued as a member of the Waitangi Tribunal and Justice Wallace as President of the Electoral Commission. A senior researcher, Philippa McDonald, is also a member of the Complaints Review Tribunal.
The appointment of Sir Kenneth Keith as a Judge of the Court of Appeal from April 1996 brought to an end a decade of service as a member and (since 1991) the President of the Commission.
Sir Kenneth has made a massive contribution over many years as an academic, a law reformer, an adviser on a wide range of constitutional and public law issues, and as an internationally recognised jurist. In his time at the Law Commission, he was able to contribute to all its work, as well as lead a number of major law reform projects.
His enthusiasm for law reform, and his great encouragement of those working with him, were important factors in the development of the Commission, and his presence will be sorely missed.
In June 1996, the Deputy President, Justice Wallace, also found it necessary to resign from the Law Commission, to concentrate on his concurrent role as President of the Electoral Commission.
When he was appointed to the Law Commission in 1989, Justice Wallace brought with him, along with many other talents, considerable experience in law reform. In all his work, and especially in the daunting project of reviewing and codifying the entire law of evidence, he set new standards in quality and meticulous research. His wise counsel within the Commission, and his tireless advocacy of the Commission’s conclusions when they came to be presented to Government, were of enormous value.
The loss, in such a short time, of these influential legal figures cannot but have a deep impact on the Commission’s work. The Commission records with gratitude the extent and distinction of their service.
Two new appointments to the Commission have been widely welcomed. The first was that of Judge Margaret Lee, who was appointed a member for a three-year term beginning in April 1996. Having sat as a District Court Judge since 1987, she brings her experience not only to the Commission’s evidence reference (which it will be her task to complete) but also to the work of the Commission generally.
In June 1996, the Minister of Justice announced the appointment of Hon Justice David Baragwanath as the Commission’s new President to succeed Sir Kenneth Keith. Justice Baragwanath has been a Judge of the High Court since 1995, and before that was one of New Zealand’s leading barristers, with a wide range of experience in civil litigation and, more recently, Treaty of Waitangi matters. His immense knowledge and experience will greatly benefit the Commission, and his three-year term, which begins in October 1996, is eagerly awaited.
Five members of the research staff, Paul McKnight, James Mullineux, Vanessa Inskeep, Penny Webb-Smart and Diane Stephenson, left the Commission during the year. The Commission acknowledges the substantial contribution made by each of them to its work. Other departures during the year included Jocelyn Ferguson, who was assistant librarian for a number of years, and Fiona MacDonald, a member of the secretarial staff. Their contribution is also acknowledged.
A list of the current members and staff of the Commission appears at Appendix F. A number of temporary staff, including vacation workers and staff assisting in the organisation of project consultation, were also engaged during the year. The Commission expresses its gratitude to all its staff for their hard work and for helping to make the Commission a stimulating and supportive work place.