22 May 2018

Family First NZ is questioning why the government is pushing the Law Commission to consider abortion laws over far weightier issues of property relationships, trust law reforms and the use of DNA in criminal investigations.

“The review of the abortion laws by the Law Commission and the very quick time allowed by the government to report back means that other issues – some which have greater importance and affect far more people – are being deferred. But a Law Commission member said in a recent media interview that the reviews that the Law Commission do best are where they consider them at length. Yet the consideration of abortion laws was referred by the Minister at the end of February and is due back “within eight months”,” says Bob McCoskrie, National Director of Family First NZ.

In response to a written question by National, the Law Commission has admitted making adjustments to its work programme:

“The Law Commission will defer completion of its final report on the review of the Property (Relationships) Act 1976 from November 2018 to April 2019, and completion of its final report on the review of the Criminal Investigations (Bodily Samples) Act 1995 from December 2018 to June 2019. Preliminary work on the Law Commission reference on Class Actions and litigation funding is underway with a final completion date not yet set. The reference on Trust law reforms – Stage 2: statutory and corporate trustees, has not yet commenced and will be put on hold for the time being.”

The Review of the Property (Relationships) Act 1976 examining a review of law due to “increasing diversity in relationships and families” was due to be reported back on in November 2018 after being referred to the Law Commission by the Minister in December 2015 (an original consideration time of 3 years). This has now been deferred another six months to make way for the abortion law review. In 2016, the Commission found nearly half the children born in New Zealand were to parents neither married nor in a civil union, and that a third of all marriages are remarriages. Therefore, these laws affect hundreds of thousands of families and people.

The Use of DNA in Criminal Investigations project is to determine whether the current legislation is fit for purpose and keeping pace with developments in forensic science, international best practice and public attitudes. The review will consider whether human rights and tikanga Māori are being appropriately recognised. The Law Commission admits that “the forensic analysis of DNA is a powerful tool in solving crime. However, the use of DNA in criminal investigations also raises important legal and ethical issues.” This has now been pushed aside and delayed a further six months.

The New Zealand Law Society proposed that the Commission should review the law relating to class actions but this is not being treated as a priority, and the Law of Trusts review appears to stalled since its inception in 2010.

“There is also concerns about the directive given to the Law Commission by the Minister of Justice. In effect, what the government has given the Law Commission is not a request for a review and direction, but rather a specific direction on how to treat a social issue in law i.e. from both a health and criminal aspect to just a health aspect.”

“It is not a question of ‘may’ or ‘could’, but a directive with a specific outcome – “to align with a health outcome”. While the Law Commission has been asked to consult with the general public – albeit in a very limited time frame - there is no requirement on the Law Commission to have to take into account the wide range of issues raised on such a hugely controversial issue. There is no allowance for the possibility that the Law Commission may actually believe that the current law is the best available.”

“Therefore, the Government is not actually asking the Law Commission for a review. It’s an agenda (or pre-determined outcome) that the Law Commission must adhere to. This has the potential to create legal and ethical problems and ambiguities in the law.”

“It seems fairly obvious that the Law Commission is being used as a smoke-screen for an agenda being rushed through by a government. The Law Commission deserves more respect.”

ENDS

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