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Terms of reference for the judiciary’s Legislation and Law Reform Committee

1. Role of the Legislation and Law Reform Committee

1.1. The role of the Legislation and Law Reform Committee is to identify issues of potential interest to the judiciary in relation to proposed legislation and other proposals for change to the law or to the way in which the law is implemented, including:

1.1.1. proposals for changes to the law or to the way in which it is implemented and administered developed by the Ministry of Justice, other departments, the Law Commission, and other Crown entities;

1.1.2. Bills introduced into Parliament;

1.1.3. proposals referred to the Committee by the Chief Justice or any Head of Bench for consideration and advice; and

1.1.4. suggestions from other judges about a perceived need for legislative change, or for changes to the way in which legislation is implemented.

1.2. The Committee will identify issues of potential interest to the judiciary in this field and will provide advice to the Chief Justice and Heads of Bench on whether the judiciary should express views on those issues and, if so, what those views should be and how those views should be communicated.

1.3. Where the Chief Justice decides that views should be expressed on behalf of the judiciary about an issue, the Committee will assist the Chief Justice as required in communicating with third parties about that issue.

2. Likely scope of issues of interest

2.1. The Committee will respect the convention under which the judiciary should not interfere, or be seen to seek to interfere, with executive policy-making or Parliamentary law-making.

2.2. Consistent with that convention, it is legitimate for the judiciary to communicate to relevant decision-makers its views on issues relating to proposed and existing legislation that directly affect the operation of the courts, the independence of the judiciary, the rule of law, or the administration of justice.

2.3. The judiciary’s views on such issues should be prepared and expressed on the basis that they may become publicly available.

2.4. An indicative list of the types of issues likely to warrant consideration is set out in the schedule.

3. Membership

3.1. The work of the Committee will be supervised by a Chairperson appointed by the Chief Justice.

3.2. The Committee will comprise a panel of judges with representation from each of the courts of general jurisdiction and, as the occasion arises, representatives of the specialist jurisdictions. Judges will be added to the panel where appropriate to reflect the nature of the matters coming before the Committee.

3.3. The Chairperson will maintain a list reflecting expressions of interest to contribute to the work of the Committee, and nominations for membership made with the concurrence of the Chief Justice and in consultation with the relevant Head of Bench.

4. Process

4.1. The Office of the Chief Justice will prepare a bi-monthly report (or an urgent report) that identifies Bills introduced to Parliament and other proposals for law reform in the public domain that come within the criteria identified in these Terms of Reference. Those reports will include recommendations on the proposals that it is suggested the Committee should consider more closely.

4.2. Following receipt of a report, the Chairperson will consider the recommendations made in it, and allocate responsibility to a specific member of the Committee (or to a subcommittee) for any proposal that the Chairperson considers warrants further consideration.

4.3. The member or subcommittee allocated responsibility for the proposal is encouraged to seek assistance, and any research or other support that may be needed, from the designated Judge’s Clerk (usually one of the clerks to the Chief Justice).

4.4. The member or subcommittee will prepare a brief report for consideration by the Chairperson. The report should:

4.4.1. Identify the aspects of the proposal which are of potential interest to the judiciary;
4.4.2. Summarise the substance of the views proposed to be expressed, if any;
4.4.3. either recommend referral of the proposal to the Chief Justice (with recommendations for the action to be taken in relation to the proposal), or recommend that the proposal not be referred to the Chief Justice.

4.5. If either the member or subcommittee, or the Chairperson, considers the proposal should be referred to the Chief Justice, the Chairperson will forward the report to the Chief Justice, with copies to relevant Heads of Bench, along with the Chairperson’s advice as to whether, how, when, to whom and by whom the judiciary should express its views. Options include:
• providing a submission to a select committee;
• raising the matter directly with the Attorney-General;
• raising the matter with the Secretary for Justice;
• providing comments to the relevant department or Crown entity.

4.6. The Chairperson will work with the member or subcommittee, in consultation with the Chief Justice and relevant Heads of Bench, to implement the Chief Justice’s decision on what views should be expressed, by whom, to whom, how and when.

July 2019

 

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Schedule

Indicative List of Topics  

  • Restrictions on accessing the courts, including in particular restrictions on judicial review
  • Provisions affecting access to justice including matters such as legal aid and court fees
  • Changes to any existing role, function, jurisdiction or power of all courts of general and specialised jurisdiction, including proposals for new roles, functions, jurisdiction or powers of these courts
  • Measures with implications for the inherent jurisdiction of the High Court
  • Measures affecting the scope and enforcement of the law of contempt
  • Proposals affecting the reporting of or commentary on court proceedings
  • Proposals affecting court procedure, including proposals for separate rules of procedure for a court
  • Proposals involving the disclosure of court record information
  • Proposals affecting the role and powers of court registrars
  • Creation of new offences and penalties and use of the civil jurisdiction to enforce criminal penalties
  • Creation of new powers of arrest and detention
  • Proposals affecting the law of evidence, including self-incrimination and privilege
  • Creation of new powers of investigation, including compulsory provision or sharing of information
  • Implications for the courts of changes in sentencing laws, without comment on government policy motivating proposed changes
  • Proposals involving the status and conditions of employment of judges
  • Proposals with implications for fundamental rights and freedoms or the rule of law
  • Proposals concerning cross-border legal co-operation, and in particular cross-border judicial co-operation.