Published: 20 August 2020
Te Aka Kōrero
News from Te Aka Matua o te Ture | Law Commission
Welcome to this issue of Te Aka Kōrero, it has been a while since we last connected but we are still here improving the law through independent review. Here are a few of our highlights over the past year.
Our Work Programme
In July 2019, the Minister Responsible for the Law Commission, Hon Andrew Little, requested that we commence work on two new projects – reviews of the law of succession and the law related to adults with impaired decision-making capacity. Our Review of Succession Law is well underway. The review of the law related to adults with impaired decision-making capacity is due to commence upon completion of our current work on the Use of DNA in Criminal Investigations. We are also continuing our work on Class Actions and Litigation Funding. Recently, the Minister has asked us to work on a new project reviewing the law relating to surrogacy, and this will commence later in the year.
- In May, we welcomed our new President Amokura Kawharu, formerly Associate Professor in the Faculty of Law at the University of Auckland. Read more about Amokura here.
- We acknowledge the skillful leadership of Deputy President Helen McQueen who led the Commission between July 2019 and May 2020, following the retirement of Sir Douglas White in June 2019.
- During lockdown, we farewelled retiring Commissioner Belinda Clark on 1 May 2020. We wish her well in future endeavours.
- Kate Thomson has joined us as General Manager, returning from Melbourne to take up this role.
- The Honourable Justice Sir Joe Williams, chair of the Commission’s Māori Liaison Committee, was appointed a Judge of the Supreme Court and a Knight Companion of the New Zealand Order of Merit in late 2019.
Commissioners and staff continue to contribute to the legal and academic community on our areas of study.
- Helen McQueen, Nichola Lambie and John-Luke Day presented to the annual New Zealand Law Society Family Law Conference in November 2019 about our recommendations for reform to relationship property law.
- Donna Buckingham and Kate McKenzie-Bridle presented at the Identity Conference 2019 – Identity as taonga: now and in the future on DNA and profiling.
- Helen McQueen and John-Luke Day presented aspects of our recommendations for reform to relationship property law to the Family Property class taught by Professor Bill Atkin in the Faculty of Law at Victoria University of Wellington.
- John-Luke Day published an article in the New Zealand Family Law Journal ‘Reconsidering the role of misconduct in relationship property proceedings’ — (2019) 9 NZFLJ 159.
- Nichola Lambie published an article in the New Zealand Law Journal ‘Review of the Property (Relationships) Act 1976 – (2019) NZLJ 304
What's been happening with our work?
We delivered a final report Review of the Property (Relationships) Act 1976 – Te Arotake i te Property (Relationships) Act 1976 in June 2019, which Hon Andrew Little tabled in Parliament on 23 July. The report concludes that while fundamental aspects of the law remain sound, other aspects of the law are no longer fit for purpose in 21st century Aotearoa New Zealand. The Commission proposed a package of reforms to make the law fairer for partners dividing property on separation. Helen McQueen spoke to Kathryn Ryan on RNZ’s Nine to Noon about our recommendations for reform to relationship property law.
The Government acknowledged the assessment that the Property (Relationships) Act is no longer fit for purpose and that the property division rules applying to relationships ending on death should be examined separately. The detailed recommendations will be considered when work is complete on the Commission’s review of Succession law.
In September 2019, the Government published a response to our report The Second Review of the Evidence Act. The Government accepted the overall conclusion that the Act is working well but that certain improvements are required. The response accepts eighteen of the Report’s recommendations outright with others to be further considered. In November 2019, the Sexual Violence Legislation Bill had its First Reading. The Bill implements recommendations contained in the Second Review Report and our 2015 report The Justice Response to Victims of Sexual Violence. The Justice Select Committee reported back in June this year and the Bill awaits Second Reading in the House.
MOU with Te Hunga Rōia Māori o Aotearoa
Te Hunga Rōia Māori o Aotearoa and Te Aka Matua o Te Ture | the Law Commission have developed a good relationship over recent years, and on 21 July 2020 signed a Memorandum of Understanding which sets out a framework for closer engagement. This includes the Commission providing regular updates and receiving advice on consultation with Māori with respect to its current and planned work programme, and Te Hunga Rōia Māori o Aotearoa encouraging its members to make submissions on issues that are relevant to Māori. As reflected in the MoU, the relationship between Te Hunga Rōia Māori o Aotearoa and the Commission is founded on a spirit of co-operation and mutual trust. Te Hunga Rōia Māori o Aotearoa has worked tirelessly since its inception in 1988 to represent Māori and Māori issues within the legal profession and in law reform. The Commission has a statutory obligation to take into account te ao Māori and progressing work in this area is a priority for the Commission. The MoU is an important step for the Commission towards this goal.
From left: Commissioner Donna Buckingham, Law Commission President Amokura Kawharu, THRMoA Tumuaki Wahine, Marcia Murray and THRMoA Tumuaki Tāne, Glenn Tootill
New legislation that implements our work
Since our last update, Parliament has passed several Bills implementing Law Commission recommendations.
- The Trusts Act 2019 received Royal Assent on 30 July 2019. This follows the Commission’s review of trust law between 2009 and 2013. The new Act replaces the Trustee Act 1956 and the Perpetuities Act 1964. It clarifies trust principles and obligations while allowing trust law to continue its evolution through the courts.
- The Abortion Legalisation Bill was introduced to Parliament in August 2019 in response to our Ministerial briefing paper Alternative Approaches to Abortion Law. The Commission recommended three possible models to achieve the policy goal of treating abortion as a health issue. A special Select Committee reported back in February this year and the Bill received Royal Assent on 23 March. RNZ’s The House published an episode about the Select Committee’s consideration of the Bill, noting the appearance of Commissioner Belinda Clark before the Committee.
- The Contempt of Court Act 2019 received Royal Assent on 26 August 2019. The Commission worked on reform of the law of contempt between 2013 and 2017, issuing a final report Reforming the Law of Contempt of Court: a Modern Statute – Ko te Whakahou I te Ture mō Te Whawhati Tikanga ki te Kōti: He Ture Ao Ho in June 2017. The new Act modernises and clarifies previous judge-made law to protect the justice system and a defendant’s right to a fair trial.
- Parliament passed the Legislation Act 2019 in October though it is yet to come into force. The legislation draws on work begun by the Commission in one of its earliest references: legislation and interpretation. The Commission published a report A New Interpretation Act: to Avoid “Prolixity and Tautology” in December 1990 and a further report Presentation of New Zealand Statute Law in December 2008. The new Act rewrites and replaces the Legislation Act 2012 and updates and re-enacts the Interpretation Act 1999.
- The Privacy Act 2020 received Royal Assent on 30 June 2020 with the majority of the Act taking effect from 1 December 2020. The Commission worked on the law of privacy between 2006 and 2011 and issued a review of the Privacy Act 1993 in August 2011. That report underpins the new legislation.