Looking back and looking forward - Law Commission turns 30
Law News was fortunate to be invited to the Law Commission’s recent symposium looking at the law reform community in the 21st century.
An impressive line-up of speakers tackled topics such as law reform from the perspectives of the executive and judiciary, accessibility of the law, the place of Te Ao Māori in law reform, and how to communicate about law reform in the age of Facebook and Instagram. With three decades having passed since the Commission’s establishment, it was an appropriate opportunity to pause and reflect on its past contributions and to consider what might be ahead.
Perspectives on law reform
New Zealand’s new Governor-General, her Excellency the Rt Hon Dame Patsy Reddy, opened the first session by looking at the role of the Governor-General in the law reform process – an “intimidating topic” for a Governor- General (at that point) only one month into her role, she quipped. The role has “real and symbolic importance” to New Zealand under our constitution, said Dame Patsy, and she values the weekly “Monday executive meeting” as important in “keeping the constitutional engine fuelled and moving smoothly” (although it is thankfully no longer governed by the infamous “one cigarette rule”).
One concern she does have, however, is a “consistent theme of lack of understanding” among the public about how New Zealand’s constitutional arrangements work. Better education and greater access to information are needed (Dame Patsy here commended Sir Geoffrey Palmer and Dr Andrew Butler for trying to engage the public in the debate with their new book A Constitution for Aotearoa NewZealand, which is available through ADLS’s bookstore – see page 12 or www.adls.org.nz for more details), and we all have a role in promoting this conversation. Foreshadowing comments made by other speakers later in the day, Dame Patsy noted the importance of harnessing new social media to engage with our current and future citizens (on that topic, check out the Governor-General’s own Facebook page!).
President of the Law Commission, the Hon Douglas White QC, agreed that the digital age can present both opportunities and difficulties for a body like the Law Commission, when some 2 million Kiwis use Facebook to communicate every day. He also noted the challenge to the Commission’s remit to ensure our laws are kept up-to-date when numbers of statutes were enacted 50-100 years ago and binding court precedents from past centuries are still floating around.
Although the Commission has started supplementing traditional methods of consultation with new technology (as discussed more below), and all New Zealand legislation is now officially available online, new questions are constantly arising. Should we also have hyperlinks in online legislation, for example to relevant court decisions? How does the law need to take account of digital issues, such as what happens to people’s online footprints after they die? “The need for the law to be kept constantly under review has never been greater,” said Mr White QC.
The next speaker, the Hon Amy Adams, commended the Law Commission for not being afraid to spearhead tough policy debates rather than simply follow the tide of popular opinion. As the Minister responsible for the Commission, Ms Adams works closely with it, and touched on a number of areas of law reform on which they have been working jointly, including privacy law and its balance with appropriate information-sharing, the draft Trusts Bill, and the overhaul of family violence law, including the introduction of a non-fatal strangulation offence as per the Commission’s recommendations.
The Hon Justice Dame Ellen France of the Supreme Court had some fascinating insights into judicial impact on law reform. Dame Ellen acknowledged that judges do contribute to law reform when their decisions have the effect of changing the law, but stressed that this aspect of judicial decision-making “has its limits”. These include the nature of the judicial process, the need for impartiality, the random nature of cases which come before the courts, limits on the information placed before the court and its inability to consult with the public in the same way a Law Commission can, and the fact that our precedent-based system only lends itself to incremental change.
Where systematic overhauls of the law are required or where there are questions of social policy, judicial involvement is necessarily lower, and Dame Ellen considers it more appropriate for the Law Commission to take the lead. “That is the democratic way of achieving comprehensive and principled reform.” Her Honour illustrated some of these challenges as they arose in the AMM case, which involved a de facto couple (as opposed to spousal) adoption. In that case, the child’s birth mother (illogically) had to be a joint party to the application of her long-term de facto partner to adopt her child, raising questions about the scope of traditional judicial constraints – whether the court can prefer wider rights-based meanings or whether the strict wording of a statute should prevail.
The relationship between courts and the Commission could be seen as “the legal equivalent of a musical mash-up” in which there are various players, but in Dame’s Ellen’s view it is a “continuing dialogue” where courts and law reform bodies draw on the work of the other. “Justice is an important business and we are all in it together,” her Honour said. Dame Ellen considers that constraints on judicial decision-making serve to highlight the benefits of systematic reform through a permanent Law Commission with its strengths of research, expertise and the ability to consult.
Access to law and law reform
Conversations around the rule of law and access to justice have echoed around the legal profession in New Zealand in recent years. Chief Parliamentary Counsel Fiona Leonard and Solicitor-General Una Jagose QC added their perspectives on law and accessibility and, in turn, access to law reform.
As head of the Parliamentary Counsel Office (PCO), Ms Leonard is tasked with ensuring access to the laws of this country, without which, she said, the rule of law does not work – “Those governed must have access to the laws by which they are governed.” Two ongoing initiatives are vital to promoting and improving accessibility both now and in the future – the Statute Revision Programme and the Access to Subordinate Instruments Project (ASIP). Both have been the subject of past Law News articles (see for example Law News Issue 21, 1 July 2016), but a brief recap here is worthwhile.
The Statute Revision Programme is an important tool in systematically updating our statute book which, over time, can become outdated, overly-amended and less coherent. The last such overhaul took place back in 1908, tackling over 1100 statutes. Ms Leonard is confident that if it could be done then (“without computers!”), it can be done now. Although no substantive reforms are made, modern, plain language drafting techniques and more logical structuring are obvious advantages in terms of accessibility. Robust internal quality control, consultation, full Select Committee and certification processes safeguard against inadvertent changes to the effect of the law and, in any case, Ms Leonard considers that the risk of doing nothing would be significantly more detrimental. She also considers that revised bills provide a better platform than outdated statutes for the identification of areas which would benefit from future law reform.
The ASIP initiative has similar aims of improving accessibility, but in this instance as regards instruments made under delegated authority – i.e. the multiplicity of regulations, orders, notices and rules that cover all facets of New Zealand business and which are currently (apart from those drafted by the PCO) published in a variety of places. The whey protein contamination incident provided an unfortunate example of the difficulty a business would have in identifying all of the instruments with which it might need to comply – in that case, some 12,000 pages were potentially applicable. Until the PCO completes the job of pulling all such instruments together into a single, comprehensive, accessible public source, no one even knows how many of them exist, nor how many agencies are empowered to make them.
As Solicitor-General, Una Jagose QC brings different insights to the rule of law/access to law conversation. It is something we “need to keep addressing”, she said, rather than just “nibble around the edges”. The right to know what the law is – clearly, intelligibly and predictably – is a necessary precursor to the right to bring disputes under the rule of law. Like the Governor-General, Ms Jagose said that a key part of her role is helping people understand our constitutional framework so that they feel able to trust the institutions that deliver the law and wants to see basic legal information increasingly becoming part of the school curriculum. Recent answers to a social media post querying who or what the Solicitor-General was (with top marks going to “the Attorney-General’s dogsbody” and “some government dude”) are an amusing indication that some work may still need to be done!
The Solicitor-General commended senior courts’ press releases as an excellent initiative which can help the public understand important cases, and encouraged not only “plain language lawyering” but “plain language judging” too – with a need to consider all of the audiences who may read judgments, whether legally-trained or not. She also touched on the revolutions in technology increasingly impacting law and dispute resolution, including visions of artificial intelligence which can apply and deliver the law. Does this mean we should kill all the lawyers? Not in her view – we will still need lawyers and judges but innovation is necessary to provide better access to justice and we may need to learn to deliver our services in a different way.
Director of the Legal Issues Centre at the University of Otago, Dr Bridgette Toy-Cronin, responded to some of the comments about the increasing availability of information and reliance on online methods of dispute resolution and other new technologies, and reminded everyone that genuine access to law requires the assistance of individuals skilled in legal reasoning and advocacy. Although legal information is now more accessible, much of it is still only available or able to be easily interpreted by the privileged few. While access to a doctor is relatively universal and affordable (although you may Google your symptoms, you would generally then go and see a doctor for a proper diagnosis and treatment), at the moment there is no real equivalent for legal advice, apart from underresourced community law centres, lawyers willing to do pro bono work and limited legal aid, which Dr Toy-Cronin does not consider enough to translate into genuine access to law in today’s complex world. While increased access, self-help guides and the plain English movement are all important, the system is still very hard to navigate for ordinary people and Dr Toy-Cronin does not see them as a substitute for skilled, individualised advice or the type of legal reasoning in which lawyers are trained. Even online dispute resolution is not a “silver bullet” – people using it still need to be able to reduce their arguments to a legally salient issue and will need the help of people who can interpret, reason and advocate.
Te Ao Māori – “the Māori dimension”
Session Three focused on law reform through the lens of Te Ao Māori and the multi-cultural nature of New Zealand society – something that section 5(2)(a) of the Law Commission Act 1985 mandates the Commission to take into consideration in making its recommendations. Recurring points made by the speakers included concerns that the Law Commission is currently lacking a Māori Commissioner and that it could proactively initiate more proposals with an eye to Te Ao Māori, rather than waiting for references from the Minister – points which seemed to hit home with Law Commissioner the Hon Dr Wayne Mapp, who acknowledged the desirability of attracting more Māori talent to the Commission and engaging more with other Māori groups.
High Court Judge and Chair of the Law Commission’s Māori Liaison Committee, the Hon Justice Joe Williams, explained Te Ao Māori as “the Māori narrative that sits as a distinct skin over our islands – it is hard to pin down but we know it when we see it”. It is “not exclusively Māori”, but rather “a Māori state of mind” which “touches all of us as New Zealanders”. Justice Williams sees the Commission’s own motto “Te Aka Matua o te ture – the parent vine of the law” as an apt analogy for its ability to selfinitiate reviews and deliberately choose which “vines” or areas of law are ripe for reform, as compared to judges who have to work with what is put in front of them. As part of this, the Commission is also tasked with “keeping the big picture in mind” and, as his Honour said, you cannot talk about that big picture without Te Ao Māori – “Not just because the Act says so but because you just can’t.” Although Māori are disproportionately affected by our justice system and Te Ao Māori is supposed to inform of the Commission’s recommendations (“not just the obvious ones”), Justice Williams considers more could be being done.
His Honour would like to see the Commission’s 2001 Study Paper on “Māori Custom and Values in New Zealand Law” (SP9) being further built upon and considers that things have suffered from the lack of a Māori Commissioner, for example during discussions about burial and cremation, surveillance, search and seizure and trusts – “The Commission did its best work when there was an advocate at the table who was either Māori or naturally inquisitive about pluralism” – and encouraged the Commission not to simply “box-tick” but to seek to grapple with Te Ao Māori with the same “sense of excitement that we are all in this together” that it had in the Commission’s early days.
Associate Professor Claire Charters of the University of Auckland’s Faculty of Law brought another point of view, questioning the legitimacy of the New Zealand state itself given the unlikelihood that Māori could be seen as having consented under the Treaty of Waitangi to their own legal system and traditions being subordinated. For example, while European/ colonial legal systems and theories tend to focus on the individual, from the perspective of tikanga, it is the collective which is the most relevant entity. Māori claims cannot be explained adequately by the more European concept of a breach of human (and usually, individual) rights, but are rather seen as a “breach of Māori birth rights”, which are collective. Professor Charters argued that the legitimacy of our law remains questionable until there is constitutional change to better recognise tikanga Māori. Rather than implying/incorporating the Treaty into a written constitution, the design of any constitution should be informed by tikanga and to reflect in its foundation the coming together of the two legal traditions.
Professor Charters noted an international resurgence in the idea that systems should reflect indigenous values. Canadian experiences with areas of shared jurisdiction show that world does not collapse when power and authority are shared with indigenous peoples, and that all legal systems can improve when they draw on other traditions. Climate change and regulation of the environment would be an area here where Māori would have much to offer. “We need to be inspired and creative. The legitimacy of our legal system depends on it,” she concluded.
“Really looking forward”
The final session of the day looked at how the Law Commission could better engage with the public in today’s fast-changing social and technological conditions, including with those who will be the future citizens of our country. Law Commission Senior Legal & Policy Adviser, Kate Salmond, noted the importance of law reformers knowing and engaging with those really affected by law reform proposals. With a projected population of 5.5 million people in 2038 (the second highest growth rate in the OECD), there are more people than ever living here, with different perspectives arising from an ageing demographic, changing ethnic breakdowns, increasing net migration and increasingly dynamic world/religious views. Any “one size fits most” model of consultation is thus in need of an upgrade.
Ms Salmond’s colleague, Paul Comrie-Thomson, looked at some of the creative methods of consultation the Commission is trialling as additions to the standard issues papers and calls for submissions. Online town hall meetings and blogs have seen a decent level of engagement, and a roadshow of public meetings around New Zealand to discuss the review of burial and cremation stimulated discussions that written responses would not have achieved. It should not be forgotten that the next generation can have valuable and unique insights on the law. For example, as part of discussions about raising the age for the sale and supply of liquor from 18 to 21, 11- and 12-year-olds submitted that having a “warm-up” at 18 may be effective in preventing people from going too crazy at 21, showing a certain sophistication in reasoning.
Additionally, the advent of social media and a decline in “push” communications (such as TV, radio and post) and a rise in “pull” communications (where people select and retrieve information specific to them, in the way they want to view it, at their leisure, such as e-books, specialist news apps, etc.) have dramatically changed the way we impart and take in information. People now expect information to be statistically supported, enticing and well-packaged, using visual summaries as well as text. Law reform bodies accordingly need to be flexible in order to best leverage these trends and to hook in a wider audience. Appropriately-targeted consultation through an array of different and creative means will be the way of the future forward.
The symposium was a successful event, with a diverse group of 170 people from around New Zealand attending. The manner in which that audience engaged with the symposium’s high-quality speakers showed there is a significant community of people keen to participate in law reform.