New Zealand Law Commission
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Hon Justice Baragwanath
THE YEAR BEGAN with Professor Richard Sutton as acting President. This followed the appointment of the Hon Sir Kenneth Keith to the Court of Appeal and the resignation of the Hon Sir John Wallace QC to attend to the heavy demands of the Electoral Commission caused by the first MMP Election. We are grateful for continuing support from all three. I took up office as President in October 1996, and in January 1997 Professor Sutton returned to the Faculty of Law at the University of Otago. Mr DF Dugdale and Ms Denese Henare ONZM (Ngati Hine, Ngapuhi) were then appointed as Commissioners. We have undertaken a fundamental reappraisal of the Law Commission and its work, which is carried out in very different conditions from those which existed at the time of its establishment.
The principles have not changed: a publicly funded, independent body taking a hard look at our laws and institutions, applying rigorous analysis and constitutional principle to reform them to meet citizens’ needs in a way that combines foresight and practicality.
But for Law Commissions here, in England, Australia, Canada and elsewhere, the focus has altered. Over the last decade the communications revolution and the collapse of communism have made globalisation a reality. Corporatisation and privatisation have shrunk the core public sector throughout much of the world, and the role of the private sector has increased. Efficiency and accountability are pre-eminent. In New Zealand, Treaty of Waitangi issues have become prominent. Economic success for some has thrown into relief the plight of others. The quest for stability that rejected the first-past-the-post system of government has not finished.
The Law Commission is nearing the end of major projects on the law of Evidence, Succession, and Women’s Access to Justice. In revising the work programme we established two principles:
1 Our work should address those issues, determined in conjunction with the Minister of Justice and Ministry officials, which are of the highest priority in improving New Zealanders’ condition through law reform.
2 We should concentrate on such of those issues as are better performed by the Law Commission than by others, while
In that way we seek to ensure that the taxpayer receives full value for each dollar spent.
The need for stability and confidence in the legal system requires continued priority for work in the area of constitutional law. The Treaty of Waitangi presents both great opportunity and challenge for the new millennium; the appointment of Commissioner Henare, and the continuing guidance of the distinguished members of our Mäori Committee, have allowed us to accept further responsibility in respect of the Treaty. The Treaty provides a vital dimension to existing projects, particularly the Women’s Access to Justice project and the Criminal Procedure work on alternatives to prosecution.
An efficient legal system is not only essential to citizens’ ability to set and achieve their own goals in a free society, but is also the lubricant of the trade which earns us revenue to fund other activity. Recognising this, we have given renewed priority to commercial law reform with Commissioner Dugdale taking prime responsibility.
We have strengthened the experience of the Commission by retaining Mr Tim Brewer ED, Crown Solicitor at New Plymouth, and Mr Paul Heath of Hamilton, as part-time consultants. (Mr Brewer was appointed a Commissioner on 3 September 1997 effective 1 October 1997.) With an outstanding research and support staff, we are well placed to deal with our considerable and stimulating task.
Our perception of what the Law Commission can contribute to the common good is shared by those with whom we work most closely. It is essential to ensure our work
To assist these processes we have exposed our proposals to public and peer examination, issuing discussion papers and accepting invitations to discuss the issues at meetings, conferences and with the media. The contibution of others by constructive criticism has both increased the quality of our work and helped us to keep it relevant. We express our gratitude for the contribution of time and effort, at the high cost of adding to an existing heavy workload, of those who have helped us.
For all of us, our time at the Commission is finite. Commissioners and staff alike are determined to use their time, and the taxpayers’ funding that pays for it, to improve the lives of all New Zealanders.
The 3-year objectives adopted in the Strategic Business Plan 1996/97 included the completion of:
Each of those targets remains within sight. The Commission has also made significant progress during the year in public law, and laid the foundations for new work in commercial law and law in respect of the Treaty of Waitangi and te ao Mäori. Details on each area of the Law Commission’s work are in the Statement of Service Performance on pages 31–37. Highlights are summarised on the following pages.
Les Atkins QC was the Commissioner responsible for Criminal Procedure. The research team was headed by senior researcher Janet Lewin (until her departure in February 1997) with support from senior researchers Philippa McDonald, Christine Hickey and Susan Potter, and researchers Ian Murray and Diana Pickard. Tim Brewer (pictured with the Criminal Procedure team) and a former Law Commissioner, Jim Cameron, acted as consultants.
Four aspects of Criminal Procedure are under consideration:
In relation to criminal evidence, the Commission published a discussion paper, The Privilege Against Self-Incrimination (NZLC PP25) in August 1996. It also completed an internal paper on identification evidence, which it circulated to a limited audience for comment. Both topics will be the subject of further publications in 1998.
A discussion paper on Criminal Prosecution (NZLC PP28) was published in March 1997 and attracted considerable interest and support. It proposed a reform of the existing system for the prosecution of offences including the creation of a stand-alone prosecutions division within the Police; a strengthening of the role of Crown Solicitors; and the establishment of a co-ordinating unit within the Crown Law Office. The relevant agencies are now taking steps to implement these changes.
There is increasing recognition of the need for viable alternatives to standard prosecution for particular offences and offenders. This will be the subject of a major project by the Law Commission, in conjunction with other agencies including the Strategic Responses to Crime Group of the Ministry of Justice. The topic raises major and important issues in relation to the Treaty of Waitangi and responses to offending by Mäori.
A paper on the jury system will be published later in 1997. It will address the availability of jury trials; the jury selection process; the discharge of jurors; jury secrecy; the media and their influence; means of assisting jury deliberation; jury disagreement; and majority verdicts. The Commission also plans to sponsor, in conjunction with Victoria Link Ltd, empirical research into New Zealand juries.
The evidence team was led by senior researcher Elisabeth McDonald, under the overall supervision of Judge Margaret Lee, with help from senior researchers David Calder (who manages project planning), Bill Sewell and Susan Potter, and researchers Nick Russell and Karen Belt.
The evidence law reform has been a massive undertaking. Among the many important and difficult questions it raises are:
With most of these questions, there are arguments either way. Perhaps this is most graphically shown in the first of the topics listed, that of witness anonymity. At stake is the public interest in not convicting the innocent, which is at the heart of the requirement for fair trials. In a fair trial accused persons must be able to challenge their accusers, and to do that must first know who the accusers are. On the other side of the balance is the integrity of the criminal justice system itself. If those accused of criminal offending are able to intimidate potential witnesses from testifying against them, the public will lose the protection of the law and the criminal justice system will fall into disrepute. The answer requires a fine balance between two conflicting public interests. In the end, the conflict may only be capable of resolution by a decision as to which public interest should prevail.
This was a key area of research in the year under review, and was subsequently addressed in a discussion paper and a final report (see Evidence Law: Witness Anonymity, NZLC PP29 and NZLC R42, 1997), following the Court of Appeal decision in R v Hines (CA 465/96).
Other highlights for the year were the publication of The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26) and Evidence Law: Character and Credibility (NZLC PP27, 1997), each of which was well received, and the completion of our revision of the hearsay rule (which was the subject of an earlier publication).
The Law Commission acknowledges the support of those practitioners, judges, academics, interested persons, and community groups who assisted the project during the year. It is especially grateful to the project’s academic consultant, Associate Professor Richard Mahoney of the University of Otago, and the Commission’s Legislative Counsel, Garth Thornton QC.
This long running but valuable project will be completed in 1998.
The Commission’s work on public law is headed by Justice Baragwanath, with the help of Commissioner Dugdale, senior researcher Padraig McNamara, and researchers Ross Carter and Diana Pickard.
The focus was to complete reports on Crown liability and judicial immunity, the review of the Official Information Act 1982, and, in international law, the treaty-making process and the role of Parliament. Drafts prepared by Sir Kenneth Keith for consultation purposes in previous years provided the foundation for this work.
Crown Liability and Judicial Immunity: A Response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997) was published in May 1997, and addressed a substantial part of the reference given to the Law Commission to review the legal status of the Crown. The report affirmed the Court of Appeal’s decision in Baigent’s case, which held that damages could be awarded for breach of the New Zealand Bill of Rights Act 1990. It concluded that, while the Crown is liable for breaches of the Act by Ministers and government departments, public bodies performing public functions should have primary responsibility for their own breaches. It recommended legislation to enable all judges to have immunity from civil suit, and to prevent actions against the Crown for breach by judges of the Bill of Rights Act.
The report received a positive response from the Minister of Justice. Completion of the work on the Crown reference will result in two further reports: one in the forthcoming year on reducing the incidence of death and injuries from systemic accidents (a response to the Cave Creek disaster); and a later one on the Crown Proceedings Act 1950.
Work on the Official Information Act was substantially complete by the end of the year, and a report was subsequently published in October 1997: Review of the Official Information Act 1982 (NZLC R40, 1997).
The report on treaty making will also be published before the end of 1997. It will examine the stages of negotiating, accepting and implementing international treaties in light of globalisation, and the increasing amount of law being made offshore. As part of its work in this topic, the Commission made submissions to the Foreign Affairs, Defence and Trade Select Committee which was considering an inquiry into the involvement of Parliament in the treaty-making process.
Thanks to progress made in other areas, the Commission was also able to prepare and circulate for comment a draft report on habeas corpus, which had been on the work programme for some time. The publication of the report is now imminent.
The Succession project team was led by Professor Sutton, until his departure, and then by Commissioner Dugdale, with assistance from senior researcher Loretta Desourdy and researchers Ross Carter and Nigel Christie.
The succession project has three main aspects:
With the exception of intestacy, the Commission is not proceeding with the review of the Administration Act 1969, which it originally planned.
In August 1996, the Commission published Succession Law: Testamentary Claims (NZLC PP24, 1996) and its companion booklet What should happen to your property when you die? (NZLC MP1, 1996). A large number of submissions were received on both papers. Major policy issues arose in respect of the ability of non-dependent adult children to claim against their parents’ estates, and the application of the law as regards de facto or same sex partners of deceased people. A final report, Succession Law: A Succession (Adjustment) Act (NZLC R39, 1997), has since been published.
Professor Tony Angelo of Victoria University, with help from Cate Alcorn, produced a paper for the Commission on the private international law aspects of the “adjustment” proposals.
Work on a discussion paper on Mäori succession laws was commenced following two series of regional and urban hui in 1995 and 1996. The paper is now being discussed with Mäori, and will be published next year.
The Law Commission’s work on wills draws substantially on the work of the Uniform Succession Laws Project in Australia. A consultation paper, Succession Law: Wills Reforms (NZLC MP2, 1996) was published in October 1996 and sent for consultation to practitioner interest groups. The Commission greatly appreciates the work that the members of these groups have given to the project. Work on a final report on wills commenced during the year and was completed with the publication of Succession Law: A Succession (Wills) Act (NZLC R41, 1997) in October 1997.
As well as working on the three main aspects identified above, the Commission reported on the question of what happens if an estate beneficiary, say under a will, has unlawfully killed the will-maker. This work was given priority in response to a request from the Minister in Charge of the Public Trust Office. The report, Succession Law: Homicidal Heirs (NZLC R38), was completed by the end of the financial year and was published in July 1997.
The Women’s Access to Justice project is led by Commissioner Joanne Morris OBE. Commissioner Henare is responsible for the Mäori dimension of the project. Senior researcher and project manager Michelle Vaughan and researchers Mäkere Papuni and Brigit Laidler made up the project team, with help from Kristina Ryan, a part-time research assistant.
Drawing on meetings and hui held around the country the Commission published five consultation papers which addressed, in context, the most urgent of the interrelated concerns raised by thousands of New Zealand women about their access to the justice system:
To date the response to the papers from government agencies, the legal profession, community groups, and individual women has been very positive. Two further papers were in preparation at year’s end, on
The Commission has now begun the task of analysing all the information gathered during the project, to develop its recommendations to the Minister of Justice. The report will address:
to promote the just treatment of women by the legal system.
The project team and the Commission suffered a very sad loss during the year with the death of Mrs Hëpora Young. Hëpora led the Mäori women’s core group (Te Röpu Uho), which planned and conducted the extensive programme of consultation with Mäori women. She was a revered source of advice and support for the project team.
Since the consultation hui were conducted, the group of Mäori women advising the project has expanded and has been guided by Ms Keri Kaa, to whom the project team, and the Commission, are particularly indebted. Before her appointment as a Commissioner, Denese Henare was a member of that advisory group, a fact which eased her transition to her present role.
The appointment of Commissioner Henare has strengthened the role of the Mäori Committee to the Law Commission. The Mäori Committee (chaired by the Rt Rev Manuhuia Bennett ONZ CMG) acts as a conduit for the Commission’s relationship with Mäori, providing wise and thoughtful advice. A new project for the forthcoming year will examine the implications of the Treaty of Waitangi in respect of the Coroners Act 1988 and the return of body parts to relatives.
The Commission is carrying out a project on Mäori custom law on behalf of the Mäori Committee, using funds provided by the New Zealand Law Foundation. It involves the preparation of an outline which will enable judges and other decision-makers to recognise concepts of Mäori custom law when, for example, a court receives expert evidence of Mäori custom or is called upon to apply custom law by statute. Drawing upon a paper by Chief Judge Durie and other academic commentary, the outline is being written by Whaimutu Dewes and Joe Williams. Philippa McDonald, a senior researcher, was responsible for managing the project during the year.
The Treaty of Waitangi touches on all the Law Commission’s work. The Commission included in its June 1997 newsletter a contribution to the public discussion concerning the nature of Mäori law. It advanced the contention that New Zealand’s legal system is “duadic”, comprising one element derived from England, and another deriving from Mäori law and custom confirmed by the Treaty of Waitangi and English law.
TE KOMITI MAORI
He Komiti tenei i whiriwhiria hei hoa korero mo te Aka Matua o Te Ture mo nga take Maori, e pa ana ki nga ture o te motu.
Ko Te Aka Matua te tahi o nga ropu hanga ture mo te Kawanatanga.
I mua he ropu Pakeha anake tenei hunga a i roto i nga marama ka huri nei ka whaka nohoia a Denese Henare, he mokopuna na Tau Henare tuatahi, hei mema mo tenei Komihana; hei kanohi hei reo hoki mo taua te Iwi Maori a ko tetahi o nga mahi ano mo te Komiti Maori he awhina, he awhi i a Denese i roto i ana mahi, ana tautohe me ana tohutohu i te Komihana mo nga tikanga o te Ao Maori.
I roto i nga marama ka huri ka mawehe atu a Hepora Young i te Ao turoa. A kei te mau mahara tonu ki taua rangatira me nga mahi i waihotia e ia i roto i tenei ropu nui whakahara na reira e kui moe mai ra.
The Law Commission’s discussions with the Securities Commission and the Ministries of Commerce and Justice have identified three areas of commercial law reform, with a view to commencing work in the 1997/98 year. The work will be led by Commissioner Dugdale, with help from consultant Paul Heath, senior researchers Loretta Desourdy and David Calder, and researchers Ross Carter and Nick Russell.
First, the Commission is to consider the reform of four aspects of the law of insurance:
Secondly, the Commission was invited by the Securities Commission to embark on a project relating to the marketing of undivided interests in land. This project, which has the additional support of the Ministry of Commerce, will examine the grey area between securities law and land law in such contexts as retirement villages, timeshares, and other interests in land that involve pooling and management arrangements.
Thirdly, the Commission investigated the possibility of a project in international trade law. The particular focus will be on electronic commerce as it affects the international supply of goods and services. Work in this area remains at an early stage.
In April 1989, the Commission published A Personal Property Securities Act for New Zealand (NZLC R9, 1989). The report received widespread support, but the reforms recommended were not included in the company law reform package of the early 1990s. It was hoped that the PPSA statute would replace the provisions in the Companies (Registration of Charges) Act 1993 which were due to expire on 30 June 1997, but those provisions remain in force.
Some progress has, however, been made. In July 1996, the Ministry of Commerce circulated a paper which set out its preliminary thinking on personal property securities law reform. Policy proposals for a PPSA statute were in preparation by the Ministry by the end of the financial year. The Commission commented on the policy paper and will play a significant advisory role in the completion of the reform.
Besides its own projects, the Law Commission gives advice to Ministers, select committees, and government departments and agencies on a wide range of matters connected with the reform and development of the law. Its statutory independence makes it well placed to provide detached advice. Legislative proposals from departments may also impact significantly on areas of law which are under review by the Commission.
The Commission also provides research support to the Legislation Advisory Committee (LAC) in discharging its function of reviewing legislation and advising select committees on matters of legislative policy. Following the retirement of Dr Mervyn Probine CB as LAC Chairperson in August 1996, an extra responsibility fell on the Commission’s research staff pending the appointment of a replacement. The Commission values its involvement with the LAC, which complements its own advisory work.
A further dimension of the Commission’s advisory work is the assistance it gives to Ministers, officials and select committees on the implementation of its own law reform proposals. The Legal Services Group of the Ministry of Justice is responsible for implementation but there is no systematic means of progressing recommendations through to the point of their introduction as Bills. The Commission is giving priority to addressing this deficiency, and expects progress to be made in the forthcoming year.
Details of all advisory work (including work in connection with the LAC and in respect of past reports of the Commission) are in appendix A. The work was co-ordinated by senior researchers Louise Delany (before she departed in August 1996) and Padraig McNamara.
This year the Commission again budgeted to operate at a deficit, funding the shortfall in income from its reserves. It also applied its reserves to a capital replacement programme in respect of its computer systems.
The financial statements are set out on pages 20–29.
Some key changes were identified in the Strategic Business Plan 1996/97. Major achievements during the year included:
These changes have improved the efficiency of our project planning and reporting; enabled better use to be made of the available research resources (in both traditional and electronic form); and improved the number, timeliness and quality of our publications.
The redesign of the Commission’s publications was completed early in the financial year. Te Aka Körero, the quarterly newsletter launched at the same time, has now run to seven issues and is central to the Commission’s communications strategy. The next publications project, due for launch in the 1997/98 year, is to establish a direct presence on the Internet. In anticipation, a number of previous reports and discussion papers have been reconverted to a suitable electronic form.
As noted in the President’s report, close contact with related organisations is critical to the success of an organisation like the Law Commission. Regular contact was maintained with the Ministry of Justice and other government departments and organisations. Commissioners Atkins and Morris were members of Focus Groups established by the Ministry of Justice.
Participation in Ministerial and other consultative committees enables us to extend the Law Commission’s contributions in a variety of ways. Justice Baragwanath was a member of the Courts Consultative Committee. Professor Sutton’s membership of the Copyright Consultative Committee enabled the Commission to monitor and contribute to developments in intellectual property. Commissioner Atkins represented the Commission on the Criminal Practice Committee. The Commission also participated in a committee established by the Principal Family Court Judge to monitor international family law issues.
Judicial contacts were maintained through these bodies and by the presence of both a High Court Judge and a District Court Judge on the Commission itself. Justice Baragwanath continued to sit as a judge in Auckland at regular intervals. Commissioner Morris was a member of the Judicial Working Group on Gender Equity and its Seminar Planning Group, and contributed to the 2-day seminar on gender issues attended by nearly all of New Zealand’s judges. Her paper incorporated material provided in the Women’s Access to Justice project by New Zealand women about their experiences in court as lawyers, parties and witnesses.
Regular meetings were held during the year with the New Zealand Law Society and a number of its committees.
Contacts with overseas law reform agencies were also maintained during the year and are thought to be of considerable value. In August 1996 the Law Commission’s Director, Robert Buchanan, represented the Commission at the triennial meeting of Commonwealth Law Reform Agencies in Vancouver, presenting a paper “Law Reform and Social Enquiry” at the opening working session.
In April 1997, Justice Baragwanath chaired a meeting of the Aviation Study Group, of which he is a member, at Linacre College, Oxford relating to safety and in particular, systemic accidents. He also provided advice to the APEC Aviation Safety Group on systemic safety. Also in April Justice Baragwanath delivered a paper, “The Treaty and the Constitution”, in a New Zealand Law Society seminar series and another, “The Future of Administrative Law”, to an AIC conference. He chaired sessions in the Legal Research Foundation seminar series on the Official Information Act, and another at Victoria University of Wellington on the Treaty of Waitangi, on which he also commented at the Pipitea Marae series.
Professor Sutton attended a number of meetings called by the Ministry of Commerce on forthcoming conferences of the World Intellectual Property Organisation (WIPO). After leaving the Commission he remained involved in the University of Waikato’s project examining the development of bicultural jurisprudence.
Commissioner Morris has some continuing responsibilities to the Waitangi Tribunal, of which she was a member until 1996.
Commissioner Dugdale continues as a contributor to Gault on Commercial Law (Brooker’s, Wellington).
Commissioner Henare is a director of the Transitional Health Authority and a member of the Northern Regional Health Committee. She also continues her legal practice in Auckland.
Commissioners and staff participated in the activities of a number of other organisations, including the Institutes of Public Law and Dispute Resolution at Victoria University, the Law and Economics Association of New Zealand (LEANZ), the International Law Association, and the New Zealand Association for Comparative Law.
Elisabeth McDonald, Research and Policy Manager of the evidence project, travelled to Fiji in June 1997 to assist in the process of criminal evidence reform. Her travel and accommodation expenses were sponsored by the Pacific Regional Human Rights Education Resource Team, a project seeking to enhance the legal and social status of women in the Pacific.
Michelle Vaughan, a senior researcher, was invited by the Legal Services Board to join an advisory committee for research into contributions and changes under the Legal Services Act 1991.
Philippa McDonald, a senior researcher, is also a member of the Complaints Review Tribunal.
The Commission farewelled Professor Richard Sutton at the end of his term on the Commission in January. Professor Sutton was appointed as a Commissioner in 1991, and served as Deputy President (and briefly as the acting President) from the middle of 1996. He has made a major contribution not only to the work of the Law Commission but also as a law reformer over a period of many years. As one of New Zealand’s leading academic lawyers the Commission benefited hugely from his presence.
Four members of the research staff, Louise Delany, Bill Sewell, Janet Lewin, and Ian Murray, left the Commission during the year under review. Each made a valuable and distinctive contribution to the Commission and its work. Their contributions are acknowledged with thanks.
John Lett, Finance and Administration Manager since 1991, left the Commission in May 1997. We also lost the services of two of our secretaries, Alison Johnston and Jacqui Kellett, during the year. The Commission acknowledges their contributions and those of the other secretarial, support, and library staff. From June 1997 the Corporate Services Manager has been Mr Bala Benjamin.
A full list of members and staff appears at appendix B.