Te Aka Kōrero
News from Te Aka Matua o te Ture | Law Commission

Welcome

Welcome to this December 2022 issue of Te Aka Kōrero. Season's greetings from the Commissioners and staff at Te Aka Matua o te Tura | Law Commission.

Highlights

It's been another busy six-month period for the Law Commission. A few of our highlights include the following:

• The Commission published a preliminary issues paper and began its publication process for its review of the law relating to adult decision-making capacity.
• The Commission published a study paper on the legal framework for emergencies.
• The Commission published terms of reference for two reviews: its review of preventive detention and post-sentence orders, and its third review of the Evidence Act 2006.
• The Commission received a new reference from the Minister of Justice.

Project updates

He Arotake i te Ture mō ngā Huarahi Whakatau a ngā Pakeke | Review of Adult Decision-making Capacity Law

In this project, the Commission is undertaking a review of laws relating to adult decision-making capacity.

In November, we published a preliminary issues paper and opened our public consultation. The focus of this paper, and consultation, is on people’s experiences with current law and practice. We also want to know what people think about the big issues and the principles that should inform our review.

The issues paper can be found on our project website: https://huarahi-whakatau.lawcom.govt.nz or capacity.lawcom.govt.nz. There, you can also find a short summary of the issues paper, including in te reo Māori and a range of alternative formats. You can also make a submission online, or find out other ways to make a submission (including by text).

The website also has a short animated video introducing the project, as well as a recording of the first of our webinars which provides a longer overview. These can also be accessed on YouTube by searching for “NZ Law Commission”.

Submissions are due by 5pm 3 March 2023.

We will publish a more detailed issues paper, which includes some options for reform, and have a second round of public consultation, later in 2023.

We intend to provide our final report to the Minister of Justice by 30 June 2024.

The Legal Framework for Emergencies in Aotearoa New Zealand

In April 2021, the Commission engaged Professor Janet McLean KC FRSNZ to write a study paper on the legal framework for emergencies. The study paper was commissioned against the background of the COVID-19 pandemic and associated measures. It presented an opportunity for the Commission to revisit its 1991 Final Report on Emergencies and reflect on the changing nature of threats that may require an emergency response and the country’s legal readiness for future emergencies.

The Commission published the Study Paper in November 2022. The Study Paper provides a wide-ranging review of the legal framework for emergencies. It is written in three parts addressing changes to Aotearoa New Zealand’s background constitutional norms since the 1991 report, the general principles that should apply to emergency legislation identified by the Regulations Review Committee, and the existing standing legal regime for emergencies.

Professor McLean concluded that the present moment (in the immediate wake of the COVID-19 emergency response) may be the “golden hour” for a thoroughgoing review Aotearoa New Zealand’s legal framework for emergencies in order to prepare “the legal powers and constraints necessary for the next pandemic”.

The report made a number of detailed recommendations, which are listed in a news item published on the Commission’s website (as well as in the paper itself).

Hapori Whānui me te Tangata Mōrea Nui: he Arotake o te Mauhere Ārai hē me ngā Ōta nō Muri Whakawhiu | Public Safety and Serious Offenders: a Review of Preventive Detention and Post-Sentence Orders

In July 2022, the Commission published terms of reference for its review of preventive detention and post-sentence orders. In this review, we are examining the laws aimed at protecting the public from offenders who pose significant risks by providing for preventive detention, extended supervision orders and public protection orders.

We aim to publish an issues paper and hold a public consultation process for this review during the course of 2023, and to report to the Minister responsible for the Law Commission by the end of 2024.

You can view the terms of reference and sign up for updates on the project from the Commission’s website.

Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act

The Commission published terms of reference for its third and final operational review of the Evidence Act in September 2022. The review will examine the operation of the provisions of the Evidence Act in civil and criminal proceedings, with a particular focus on the operation of the Act since the Commission’s second review. We will consider whether repeal or amendment of any provisions of the Act are necessary or desirable.

You can read more about the project and sign up for updates on the Commission’s website.

The Commission will publish an issues paper for public consultation in mid-2023 and must report to the Minister by February 2024.

Tikanga Māori

The Commission is making significant progress towards its study paper on tikanga Māori which it plans to publish in July 2023.

The study paper will examine tikanga Māori and its place in Aotearoa New Zealand’s legal landscape. For more information you can visit the project page on the Commission’s website.

Government Response to R147 Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa | Class Actions and Litigation Funding

The Commission published its final report, Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa | Class Actions and Litigation Funding in June 2022. The Government’s response to the report was presented to Parliament on 30 November 2022. The Government acknowledged the substantial work that went into the report and expressed appreciation for the detailed recommendations. It accepted, in principle, that the recommended statutory regime for class actions, underpinned by a Class Actions Act, will provide clarity and could enhance access to justice, and that the recommended court oversight of litigation funding agreements in class actions should aid in ensuring the terms of agreements are fair and reasonable.

The Government said it intends to begin policy work to advance the report’s recommendations in 2023. It also said due to the technical nature of the issues and the need for legislative reform to give effect to the recommendations, advancing the reforms will take some time and will need to be balanced against other Government priorities.

Te Kōpū Whāngai: He Arotake | Review of Surrogacy

The Commission published its final report, Te Kōpū Whāngai: He Arotake | Review of Surrogacy, in May 2022. The Commission’s recommendations are now being considered by the Health Committee as part of its consideration of the Improving Arrangements for Surrogacy Bill, a member’s bill that was introduced in Parliament in September 2021. The Committee will report back on the Bill by 3 March 2023.

New Projects

On 18 November 2022, the Minister responsible for the Law Commission, Hon Kiri Allan, referred the following issues to the Commission to review:

• Protections in the Human Rights Act 1993 for transgender people, non-binary people and people with diverse sex characteristics;
• Legal responses to hate-motivated offending (which is sometimes called "hate crime");
• Legal responses to speech that expresses hostility towards, or contempt for, people who share a common characteristic (which is sometimes called "hate speech").

Based on its current resources, the Commission has decided it will be most efficient to examine the legal issues involved in this reference in two phases. In phase one (which Commission will commerce on 16 January 2023) the Commission will examine the protections in the Human Rights Act for transgender people, non-binary people and people with diverse sex characteristics. This phase one project will not examine hate speech or hate crime. If you would like to know more about this project on Sex, Gender and Discrimination, you can visit the project webpage.

In phase two, the Commission will examine Legal Responses to Hate (including hate speech and hate crime). The start date for phase two will depend on resources becoming available. You can subscribe for updates on this phase two project (including the likely start date once it is known) on the project webpage.