Law Society warns of challenges to the rule of law despite global ranking

Aotearoa New Zealand currently ranks sixth globally for rule of law, according to the World Justice Project’s 2024 rankings - however, those on the front lines of the legal system are seeing cracks that suggest we shouldn't get too complacent with our position.

The New Zealand Law Society Te Kāhui Ture o Aotearoa (Law Society) has released “Strengthening the rule of law in Aotearoa New Zealand”, a comprehensive report highlighting key challenges to the rule of law. The report emerged from a recognition that while the term "rule of law" often features in political discourse, many New Zealanders don't fully grasp what it means or why it matters.

The report has produced 78 specific recommendations to address what Law Society President Frazer Barton describes as "systemic challenges to the rule of law.” These include barriers to accessing justice, poor legislative and policy-making processes, threats to judicial independence, and risks emerging from the growing use of automated decision-making systems in government departments.

For Bronwyn Jones, General Manager Policy, Courts and Government at the Law Society, these issues go beyond academic concerns - they are clear signs that it is important to stay vigilant and respond to challenges as they arise.

“It’s about making sure that we’re aware of the small, incremental erosions of the rule of law on a day-to-day basis, and what would happen if we let them go,” Jones tells NZ Lawyer.

When justice is out of reach, and speed trumps scrutiny

One of the more concerning findings of the report is that access to justice is out of reach for many New Zealanders. The barriers are varied, creating what amounts to a multi-layered obstacle course for those seeking legal assistance or redress.

“Barriers can impact those who need to access justice in a number of ways,” explains Jones. “Are people able to recognise that they have a legal issue, and can they access and understand the law that applies to their circumstances? And from there, are they able to get legal help, or are there financial, cultural, or language barriers? If they are unable to pay for a lawyer, can they qualify for legal aid or receive free legal help? If they take their matter to court, will their issue be dealt with in a timely manner?”

“These are issues that require a systemic response from the current and future governments,” says Jones.

Another threat to the rule of law is the increasing tendency toward rushed policymaking and legislative processes. The report specifically highlights concerns about the increased use of urgency and Amendment Papers to limit public consultation and select committee scrutiny (including, for example, the use of urgency to pass laws that will have retrospective effect).

"These practices can undermine transparency, reduce the quality of legislation, and weaken democratic accountability," warns Law Society president Frazer Barton.

Defending judicial independence

One of the more troubling trends identified in the report is attacks on judicial independence - what Jones describes as criticisms that "go further than critiquing judgments, and when made by Ministers and members of Parliament, risk undermining the constitutional principles of comity and the separation of powers.”

Jones notes that this also appears to be a concern overseas: in the United Kingdom, for example, there are concerns that criticisms of the Supreme Court may be influencing its judges to issue decisions that are more aligned with the Government’s political preferences, leading to perceptions about the politicisation of the judiciary.

Jones says that while some of these concerns can be addressed through better education about the role of the judiciary, the rule of law ultimately requires all of us to protect judicial independence by speaking out against unfair criticisms.

“Members of the judiciary cannot defend themselves against these criticisms – this can leave a void of information about their role and function and erode public confidence in the judiciary. We think the Law Society, lawyers, the government, and other organisations have a responsibility to speak up on behalf of the judiciary.”

Looking ahead

The report's 78 recommendations to strengthen the rule of law include specific actions for the government, the Law Society, and individual lawyers. These range from increased funding for the justice system and reforms to legislative processes, to improved public legal education and stronger safeguards around automated decision-making.

Jones acknowledges the scale of the work needed to implement these recommendations.

"It's not like we can just click our fingers, and all rule of law issues are fixed and barriers to access to justice are gone,” she says. “This work will need to happen over the coming years, with ongoing support from the current and future governments. The Law Society will look to assist with this work where we can and continue to advocate for improved access to justice and better law reform processes.”

The Law Society's next steps will involve developing action plans and creating resources for both the legal profession and the public.

“We're very grateful to LexisNexis for partnering with us to launch and promote our report, including by sharing insights into the work they do to strengthen the rule of law both in New Zealand, and overseas,” says Jones. “With their assistance and support, we hope these important messages about protecting the rule of law will reach beyond the legal profession to engage all New Zealanders.”

Click here to download the Law Society's report.