Series on the Judicature Modernisation Bill

In last week’s Law News (Issue 3, 17 February 2017), ADLS’s Civil Litigation Committee began a series looking at some of the Acts relevant to civil litigation which have been separated out from what was the Judicature Modernisation Bill and passed as separate Acts.

In Issue 3, the Committee looked at the Trans-Tasman Proceedings Act 2016. This week, the Committee considers the Electronic Courts and Tribunals Act 2016.

The Electronic Courts and Tribunals Act 2016

The Electronic Courts and Tribunals Act 2016 (the Act) enables greater use of electronic documents in proceedings, allowing people who work in New Zealand’s courts and tribunals to benefit from modern technology by being able to create, submit and receive court documents electronically (as commented by Minister for Justice, the Hon Amy Adams, in moving the third reading of the Bill

Its stated purpose is to facilitate the filing and use of “permitted documents” in New Zealand courts and tribunals and to allow existing enactments to be interpreted to enable this to occur. It is intended to cover everyday transactions within the courts and tribunals. As a consequence, “permitted documents” do not include:

  • documents that require an oath or affirmation;
  • statutory declarations;
  • testamentary instruments;
  • a power of attorney or enduring power of attorney;
  • negotiable instruments;
  • notices that are to be attached to anything or left or displayed in a place;
  • warrants or anything that authorises entry into premises or search and seizure; or
  • any of these items that is required to be served by personal service.

The Act currently does not require a person to use, provide or accept a permitted document without the person’s consent (but does not override any other Act that contains such a requirement). However, it makes provision for Regulations to be made specifying classes of persons who will be required to use, provide or accept permitted documents.

The Act sets out the manner by which permitted documents will meet certain non-electronic requirements, namely the requirement:

  • for information to be in writing, to be recorded in writing and to be given in writing;
  • to provide multiple copies of information;
  • to provide information in certain form;
  • relating to signing, witnessing and sealing;
  • to retain paper-based and electronic documents and information; and
  • to provide or produce or give access to information in a paper-based or electronic form.

In the case of the electronic signing, witnessing and sealing of permitted documents, the focus is on whether:

  • the electronic signatures and seals adequately identify the signatory or party and indicate his or her approval; and
  • it is as reliable as is appropriate given the particular purpose for which, and circumstances in which, it is required.

An electronic signature will be presumed reliable when only the signatory has control of it and where any alteration of both the signature and any information it relates to can be detected.

In all other cases, the permitted document will meet the requirement if, as relevant:

  • it is readily accessible and available for subsequent use or reference; and
  • the integrity of the underling information can be maintained reliably and, if it cannot, this is notified to the recipient.

The Act also includes rules regarding the transmission of permitted documents. Time of dispatch is when the document first enters an information system outside the control of the party sending it. Time of receipt is when the document first enters the recipient’s information system. The place of filing may be either centralised or within the court or tribunal and may be physical (e.g. delivering a disk or drive) or electronic.

The Act will come into force on 1 March 2017. It will have immediate effect on all proceedings except in the case of the continuation of a hearing already commenced and any appeal or review of a determination arising from that hearing. At the time of writing, regulations for the electronic payment of fees have yet to be finalised.

Look out for more updates on the other new Acts in forthcoming issues of Law News as well as information about CPD activity on these topics.

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