Te Aka Kōrero | Newsletter

Welcome to the autumn edition of Te Aka Kōrero.

Paying tribute to Sir Kenneth

Kua hinga te tōtara i te wao nui a Tane.

It is with much sadness that the Commissioners and staff of Te Aka Matua o te Ture | Law Commission learned of the passing of the Rt Hon Sir Kenneth Keith.

The Commission produced some of its most influential law reform reports during his time at the Commission, which saw improvements to the structure of the courts, the form and accessibility of legislation, arbitration, aspects of damages, property law and company law, among others. Some of those reports continue to be cited in the senior courts and legal commentary to this day.

In farewelling Sir Kenneth in 1996, the Commission noted: “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.”

Thirty years later, we echo these words. The Commission farewells a giant in the law and in law reform. Lady Jocelyn and their children and extended family are in our thoughts.

E te tōtara, e rere ā mātou kupu mihi ki a koe, haere, haere, haere atu rā.

New law reform project: automated decision-making in government

‘Automated decision-making’ refers to the use of digital technologies, including artificial intelligence, to assist decision-making processes. At present, New Zealand does not have overarching law, standards or guidance specifically addressing how government agencies should use automated decision-making in a legally compliant and consistent manner.

Our work will focus on creating a coherent legal framework to guide government agencies. A clear and consistent framework for identifying and mitigating legal risk will give agencies greater confidence to invest in, and use, automated decision-making tools, particularly those that rely on new technologies such as artificial intelligence, while ensuring decisions remain lawful, transparent and fair.

We expect to begin this project mid-2026.

Justice Select Committee Report on post-sentence orders

In our last newsletter, we shared with you that the Commission made a submission to the Justice Select Committee on reforming the law of post-sentence orders. The Committee was considering the matter following declarations of inconsistency issued by the Supreme Court in Attorney-General v Chisnall [2025] NZSC 126. The Select Committee has since issued its report.

Post-sentence orders are measures to protect the community from people who pose risks of serious sexual and violent reoffending.

There are two types of post-sentence orders — extended supervision orders (ESOs) and public protection orders (PPOs). An ESO or a PPO can be made by a court when a prisoner who committed a particularly serious offence approaches the end of their prison sentence. If the court finds that it would be too dangerous to the community to simply release the person, it can make an ESO or, if that would not be enough to protect the public, a PPO.

The Supreme Court found in Attorney-General v Chisnall [2024] NZSC 178 that substantial parts of the current post-sentence orders regime are in breach of the New Zealand Bill of Rights Act 1990. It issued a declaration of inconsistency with regard to these parts of the regime.

The Court said any less rights-intrusive regime for post-sentence detention would be based on three “core pillars”:

• “achieving public protection by the least restrictive means possible for each offender”;
• “minimising the punitive impact of the restrictions on the offender”; and
• “requiring mandatory provision of rehabilitation designed to meet the needs of the offender (including, where indicated, therapeutic treatment)”.

Our recommendations in Here ora: Preventive measures in a reformed law (NZLC R149, 2025) respond to each of the three “core pillars” identified by the Supreme Court.

To achieve public protection by the least restrictive means possible, we recommended a new test for the courts to use to decide whether to impose an order or not. We also recommended a new, more rigorous system of periodic reviews to ensure restrictions endure no longer than necessary.

To minimise the punitive impact on people subject to orders, we recommended that detention conditions should be materially different from those of prison.

And to ensure that appropriate rehabilitation is provided, we recommended that people subject to orders should have a statutory entitlement to rehabilitative treatment and reintegration support. Coordinated treatment and supervision plans should be put in place to respond to a person’s rehabilitative needs in a structured, consistent and methodical manner.

The Justice Select Committee considered how Parliament should respond to the Supreme Court’s declarations of inconsistency. We submitted to the Committee that implementing the recommendations made in our report Here ora would result in a regime that is both rights-compliant and better achieves community safety.

Surrogacy: Final Report of the Health Select Committee

In 2022, we published our report Te Kōpū Whāngai: He Arotake | Review of Surrogacy (NZLC R146, 2022), which recommended a new framework for determining legal parenthood in surrogacy arrangements as well as other improvements to law and practice.

The Government accepted the Commission’s recommendations in principle. In March, the Health Select Committee recommended the Improving Arrangements for Surrogacy Bill advance to Second Reading. The Bill substantively reflects the recommendations in our report.

We will keep you posted on the Bill’s further progression through the parliamentary process.

Assessing our impact, building momentum

As reported in a recent New Zealand Herald article (paywalled), the implementation score of our reports and advice is 71 per cent for the period of 2014/15 until 2024/25. (We explain the method for calculating the implementation rate in our Annual Report for 2024/25.)

Recently, several articles drew attention to unimplemented work of the Commission across a range of topics, including our reviews of relationship property, official information and extradition laws. The main reason  delays occur is that our recommendations for reform must compete with other government policy priorities in the context of scarce legislative time. A change in the government of the day may also delay implementation because of shifts in policy and legislative priorities.

Whether our recommendations get implemented (and to what extent) is a key measure of our impact and sits alongside other important performance measures we report on, such as our publication output and the level to which the general public and experts engage with our publications. Our work continues to be lauded and used in many sectors.

As Retired District Court Judge David Harvey comments in the Herald article, Commission reports are often “invaluable starting points for lawyers, researchers and policy makers, providing analysis around complex legal questions”.  Since the start of this year, works by the Commission have been cited in over 230 news media articles, New Zealand law journals and texts, as well as in 26 senior court judgments.

Review of the Criminal Procedure (Mentally Impaired Persons) Act 2003

We are currently undertaking preparatory research and engagement to scope this project. Once the scoping phase is completed, we will publish the terms of reference on our website.

Hara ngākau kino | Hate Crime

We are currently putting the finishing touches on our Final Report for this project. The Final Report contains our recommendations for reform. Keep an eye on your inbox for our next newsletter.

Haemata Haepapa | Directors’ duties and liabilities

We are currently researching the law and identifying issues that may require reform. We are working toward publication of an Issues Paper that will invite feedback on the issues with the current law and how they might be addressed.