A steady rhythm of bills and policy consultations has returned, following the 2023 election and first 100 days of the new Government, during which time there were few opportunities for consultation. The Law Society, assisted by its law reform committees and sections, has submitted on several high-profile bills and appeared before a number of select committees.

Criminal law reform has been a primary feature of the legislative agenda in recent months. The Law Society’s Criminal Law Committee members have given significant time and expertise to assist with the preparation of objective and reasoned submissions, in an effort to address serious concerns about this legislation. Submissions have included:

• The Gangs Legislation Amendment Bill, which proposes to introduce dispersal notices, non-consorting orders, a ban on gang patches in public, and gang membership as an aggravating factor in sentencing. The Law Society considers this Bill should not proceed, and has raised numerous concerns, including the extent to which the Bill infringes on rights protected by the New Zealand Bill of Rights Act 1990, and evidence from Australian examples suggesting such measures are ineffective.
• The Firearms Prohibitions Orders Legislation Amendment Bill. This Bill will amend the existing Firearm Prohibitions Orders (FPO) regime, extending the groups of persons to whom an FPO may be applied, and introducing broad warrantless search powers for Police to check compliance with an FPO. That search power requires only that Police suspect a person is subject to an FPO; it does not require reasonable grounds to believe that an FPO is being breached. It also permits the warrantless search of any premises where that individual is. The Law Society has recommended further evidence on the operation of the existing regime is sought before proceeding with the Bill, as it is not yet known whether FPOs have proven effective.
• A member’s bill, the Parole (Mandatory Completion of Rehabilitative Programmes) Amendment Bill. This Bill would require that individuals in a corrections facility complete rehabilitation programmes identified in their management plan before they can be considered for parole. The Law Society has recommended the Bill does not proceed, noting that, in practice, it is already the case that an offender will not be released if suitable rehabilitative programmes have not been completed. The Bill would allow no discretion for the Parole Board, and there is no obligation on the Department of Corrections to ensure the timely availability of rehabilitative programmes. The Law Society has also raised concerns about the significant power this gives Corrections staff who prepare the management plan, not all of whom are best-placed to make such decisions. There is not currently adequate access to such programmes across the prison estate, and the Bill is likely to result in extended prison sentences.

Fast-track Approvals Bill

The Law Society was also one of over 8000 submitters on the Fast-track Approvals Bill, which proposes a fast-track process for the consenting of projects of national and regional significance. In a clause-by-clause analysis, the Law Society offered recommendations to improve the clarity of drafting. However, concerns were also raised about the Bill’s disregard for good regulatory practice and inconsistency with constitutional norms. The process set out in the Bill concentrates significant power in three Ministers who, despite appointing an Expert Panel to consider the application, are not required to follow the recommendations of that panel. The process also takes precedence over existing legislative and regulatory requirements, such as those under the Resource Management Act and Conservation Act. Public consultation is not required, despite projects being, by definition, of national and regional significance. The Law Society has made recommendations to address these concerns.

"The Cost of Practice report shows that in the past three years alone, the operational costs of running a legal practice have increased by 15.3% each year"

In addition, the Law Society has submitted on a range of non-legislative consultations, including:

• A Ministry of Justice consultation on the use of legislative clauses exempting classes of information from the jurisdiction of the Official Information Act 1982.
• The Draft Voluntary Code of Conduct for Political Lobbyists, developed by the Ministry of Justice. The Law Society has noted that defining a political lobbyist as “anyone trying to influence government policy, process or law” is so broad as to potentially capture students writing to their local MP.
• A draft Biometrics Code developed by the Office of the Privacy Commissioner, which proposes new rules for agencies that collect or use biometric information for biometric processing.
• Contributing to the OECD’s fourth phase of monitoring the implementation of the OECD Anti-Bribery Convention in New Zealand.
• A draft revision of the Solicitor General’s Prosecution Guidelines.

Advocacy

Courthouse health and safety

We continue to engage with the Ministry of Justice on issues and concerns about courthouses across the country and work underway to renovate or replace certain courthouse buildings. The Law Society regularly liaises with the Ministry of Justice about health, safety and security concerns relating to specific courts, and has recently engaged on the content of health and safety inductions. Courthouse issues can be raised with the Law Society either via your local branch, or by contacting the Law Reform and Advocacy Advisor responsible for the Courthouse Committee. Details are available on our website.

Advising primary caregiver clients facing custodial sentences

In 2023, driven by concern about the impacts of parental incarceration and the risk associated with incarceration of a sole caregiver, the judiciary established a working group alongside members of the profession and relevant government agencies.

Her Honour Justice Susan Thomas, Fiona Guy Kidd KC and Stacey Shorthall subsequently presented a webinar on the ‘Impact of Parental Incarceration on Children.’ The webinar aimed to increase lawyers’ understanding of the effects of parental incarceration, and how this can be raised throughout the process from charge through to sentencing.

To further understanding, the Department of Corrections has provided the Law Society with a copy of its practice guidance, Working with Caregivers of Dependent Children or Vulnerable Adults at the PAC Stage. This practice guidance sets out Corrections’ role in obtaining information about dependent children and providing it to the Court, and the points at which a report of concern must be made to Oranga Tamariki.

At the helpful suggestion of senior defence counsel, the Law Society has pulled together these resources to set out key points for the consideration of defence counsel, and how this might affect the advice given to clients. This information, as well as a copy of the Corrections practice guidance and a link to a recording of the webinar, can be found in the Practice Briefings section of the Law Society’s website.

Cost of Practice report released

In March, the Law Society released its report on the costs of practising law in Aotearoa New Zealand today. Undertaken with KPMG, the report outlines the operational costs and challenges associated with running a legal practice, as well as the costs and challenges specific to legal aid providers. The report is based on financial data provided by practices, across a range of practice sizes and types, for the past three years.

The report shows that in the past three years alone, the operational costs of running a legal practice have increased by 15.3% each year. The ratio of billable to non-billable hours has reduced, and practices are facing increasing insurance, technology and compliances costs, as well as facing significant challenges in attracting and retaining suitably qualified and experienced staff.

Legal aid-specific results show that administration and client needs – in conjunction with inadequate remuneration and higher overheads – are reducing the productivity of legal aid lawyers and exacerbating operational challenges. Non-legal aid providers recover 61% of their time, on average 1,031 hours per year. For legal aid providers this drops to 53.3% and 807 hours per year.

The research will be used to support the Law Society’s ongoing advocacy. Already, the Law Society has raised the legal aid findings with the Legal Services Commissioner. The report raises several areas of improvement that would be meaningful to legal aid providers, and which should be capable of progression irrespective of budgetary constraints.

The Law Society has also raised with the Ministry of Justice the evidence outlining compliance challenges. Around 14% of practices reported regulatory compliance as their primary operational challenge, with the majority of those citing AML/CFT. The impact of AML/CFT was also raised more generally by respondents throughout the survey, including when asked what could make the biggest difference to the operation of their practice. The Law Society has commenced work to advocate for changes that can maintain the integrity of the scheme while reducing the burden on practices.

The Law Society as Public Interest Intervenor

The Law Society is currently intervening in three proceedings:

• Spiga v MW, in the Employment Court. This case relates to the application of non-publication orders, where there has been a breach of settlement agreement. The Law Society is jointly intervening with the New Zealand Bar Association (NZBA), as the case is likely to address non-publication orders more broadly in the employment jurisdiction.
• Hawkins v Te Hei, in the Court of Appeal. This case concerns the award of exemplary damages, and damages for emotional harm and/or bereavement, to an immediate family member of a person who dies because of an intentional tort.
• A joint intervention with the NZBA and Law Association, in a High Court case relating to the Family Court’s power to appoint standby counsel and counsel to assist.