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Howard's End: Courts Need Fixing Urgently

The way the law is written today, chances are that you, or somebody you know, will come before a court or will need to use the court system at least once in a lifetime. The 89-page discussion document published yesterday by the Law Commission identifies a real mess over fairness and access to justice in our courts. Maree Howard writes.

The Law Commission report says that many New Zealanders feel our court system is too slow, too expensive, hard to understand and unhelpful to those who need it most.

It says the court system does not enjoy the full support and confidence of all parts of society and that people from minority groups often do not feel confident that they understand what goes on, or that they will be understood or fairly treated.

In part the document says:

- Judges and courts are overloaded with work;

- cases take too long to come before a judge;

- the cost of court fees and employing a lawyer is a barrier - (the government recently increased the fees from $120 to $900 just to start proceedings in the High Court and from $650 to $2,200 just for setting down a hearing);

- some say legal aid is too generous while others argue it is unfairly limited to those on the lowest incomes;

- serious criminal trials have become so complex and lengthy that hardly anyone can afford their own defence;

- there are now 100 tribunals which have "mushroomed seemingly without rhyme or reason" with many vulnerable to perceptions of improper influence because they work alongside and are supported by the organisations they have to make rulings on;

No doubt about it - it's a real mess. So what to do?

The Law Commission is calling for public submissions until 12 July. Then the Commission will write a second paper suggesting options for reform and give a final report to Government with form recommendations by April next year.

But that's simply not good enough. The public needs answers and solutions with more urgency.

If the judges are over-worked and the courts system is clogged - Simple, hold night courts. The Government could announce that as soon as tomorrow.

Second, write the law so that people can understand it.

I mean, for God's-sake, one of the principles of the rule of law is that all law is firstly directed at the general public so that they may know and understand the law and be guided by the content of the rules - i.e. stability of law.

The law is not directed at authorities and bureaucrats which gives them the ability to engage in statutory gymnastics or legal anarchy with their interpretations against the public - But that's what's happening!

Furthermore, some legislation coming out of Parliament is more than 400 sections long. Then on top of that there's the sub-sections, the clauses and the sub-clauses, then the Schedules and then the Regulations.

That can be more than 1,000 pieces of law that the ordinary citizen must come to terms with, understand and obey just from one statute and there are hundreds more of them.

Worse, the legislation can be written so badly and so quickly that in many cases it does not address the issue or the mischief it is meant to, and so, then comes all the amendments.

How on earth is Joan or John public supposed to understand all that? The answer is that they can't. And so the courts remain clogged, judges are over-worked, people get angry, costs rise and so it goes on.

It needs fixing now - not in 12 months time. So don't give me reasons why it can't be fixed - give me reasons why it can.


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