New legislation to modernise courts may have unintended consequences

The Judicature Modernisation Bill may unintentionally compromise the public interest in the effective and expeditious disposal of litigation, the New Zealand Law Society says.

Law Society spokesperson Liesle Theron told Parliament’s Justice and Electoral Committee that clause 169 of the proposed bill, which would allow people other than a barrister or solicitor to support self-represented litigants, may undermine the safeguards put in place by the Lawyers and Conveyancers Act 2006 in relation to appearing in court as an advocate for another person.

The Law Society recommends that clause 169 be amended to specify that any person supporting a self-represented litigant does not have the right to be heard.

“The involvement of additional unregulated participants would increase the burden on the court system from unrepresented litigants,” Ms Theron says.

The Law Society suggested a number of technical changes to the bill. It also supported the Law Commission’s call for more transparent criteria for the appointment of judges.

The Law Society supports Commission recommendations requiring consultation with the legal profession and the judiciary before making judicial appointments and specifying appropriate minimum criteria for selection but without identifying specific categories of diversity.

“Stating these basic requirements explicitly would engender public confidence and transparency,” Ms Theron says.

The bill also proposes expanding the power of individual judges in the Court of Appeal, allowing two judges to determine applications for leave to appeal and to extend time.

At present, at least three judges are required to decide a matter that will determine an appeal.

The Law Society says if the judges disagree, the applicant will be denied relief. This means that one judge effectively determines the application against the applicant if there is a disagreement.

The Law Society recommends that any application which determines the proceeding or disposes of a question or an issue that is before the court in the proceeding should be heard and determined by at least two judges.

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