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Delivering Justice for All - Recommendations

SUMMARY OF RECOMMENDATIONS

Delivering Justice for All
A vision for New Zealand courts and tribunals

SUMMARY OF RECOMMENDATIONS

PART 1: ACHIEVING ACCESS

1.2 Legal Information

R1 A state agency should have lead responsibility for developing an integrated and coordinated legal information strategy that assists the entire community when dealing with the court system.

R2 State agencies responsible for legislation that creates public rights and duties should be required to produce, distribute, review and update information that will assist lay people to understand those rights and duties. This should be an explicit requirement when new legislation in that category is passed.

R3 Responsibilities of the lead agency or agencies in relation to legal information should include the following elements:

 advising Government in relation to an integrated legal information strategy, including specific initiatives that require new funding, (possibly by working with the Justice Sector Information Strategy project)
 maintaining an accessible database of up to date legal information prepared from a lay user’s perspective in online, written, aural or visual formats, along the lines of the online catalogue of law-related information currently being developed by the Legal Services Agency
 maintaining an accessible database of where and how to obtain up to date legal information (such as from websites, Citizens Advice Bureaux, Community Law Centres, courthouses, libraries, 0800 numbers or professional organisations), prepared from a lay user’s perspective along the lines of the online catalogue of law-related information currently being developed by the Legal Services Agency
 taking an active role in ensuring this information is available nationwide in visible community outlets including courthouses, Citizens Advice Bureaux, libraries, Community Law Centres, and other community centers
 taking an active role in promoting public awareness of the existence of the information and of information outlets in ways appropriate to different audiences (eg, posters, community radio, training information provider staff, and preparing training materials), building on initiatives the Legal Services Agency already has underway
 liaising with other government agencies, the law profession, information providers and community groups to identify where and how deficits in the provision of information occur
 taking an active role to assist other agencies and organisations with the provision of new information by identifying potential funding sources and providers, and advising on effective communication methods
 leading new initiatives to enhance the delivery of useful legal information, for example, by providing training information or by developing self-help kits for some types of case.

R4 The Ministry of Justice should take the lead in providing information about court proceedings, in leaflet and electronic form, and within the courthouse.
R5 The Ministry of Justice should pilot the use of an information service or helpdesk in courthouses, where trained staff can answer general questions about court proceedings, help people find their way, provide access to general legal information and suggest where people can obtain individual, initial legal advice.
1.3 Initial Legal Advice

R6 A state agency should have the lead responsibility to create and maintain a national network for the provision of initial legal advice.

R7 The responsibilities of the agency should include:

 advising Government in relation to an integrated initial legal advice network, including specific initiatives that require new funding
 ensuring there are options for people to obtain initial legal advice face to face or by some other method where questions can be asked and answers given, such as telephone or internet
 ensuring state-funded legal advisers are qualified and experienced in the particular legal areas where they give advice, or properly supervised by senior lawyers with those attributes
 establishing reasonable times and expectations for initial interviews with the objective of clarifying the available options and next step for the client
 working with the legal profession to explore possibilities for offering ‘unbundled’ legal services.

1.4 Representation

R8 The police should be obliged to inform people in their custody of the existence of the Police Detention Legal Aid Scheme.

R9 People charged with a criminal offence should receive a minimum standard of representation and advice about their rights and options, including:

 advice (by appointment) before the day the case is first called in court
 representation for the first call of the case
 advice and continuity of representation for any further matters arising during the administrative phase of the case including disclosure, remand, plea, status hearing and (if relevant) jury trial election and bail
 continuity of representation where a guilty plea is entered.

R10 The duty solicitor scheme should be reformed, or a new scheme developed, to ensure these minimum standards are achieved for those who would otherwise be unrepresented.

R11 Community Law Centre lawyers should be able to represent their clients, without demonstration of unmet legal needs, provided there is no double-dipping of state funding.

R12 Legislation should establish a presumptive right, within limits controlled by the presiding judge, for unrepresented litigants in court to have assistance from:

 a supporter, such as a kaumatua or elder in the litigant’s community, who could address the court on behalf of the litigant at sentencing in summary criminal cases, or within limits to be decided by the judge in other proceedings
 a ‘friend’, who may sit beside the litigant in court, take notes, make suggestions, give advice to the litigant, and propose questions and submissions which the litigant may ask or make (a McKenzie Friend).

R13 Where lay advocates are permitted in specialist tribunals, the tribunal should be able to stipulate the level of knowledge or experience that is a prerequisite to a general right of audience.

1.5 Costs

R14 Accessibility and simplification in order to reduce costs to the public should be recognised as a priority in all law reform initiatives, including changes to court practice and new legislation.

R15 A report on the direct and indirect compliance costs to the public of new legislation should be required by Government as a matter of course.

R16 Amendments should be made to the Rules of Professional Conduct that place specific requirements on the amount of information lawyers must give. The following minimum information should be provided to clients

 At the first meeting or contact the client should be given:

- the name of the lawyer responsible for the conduct of the matter
- details of the methods of costing, billing intervals and billing arrangements (which should include itemised billing)
- information setting out the disclosure obligations of the lawyer
- a statement specifying the external and internal avenues available for complaints about lawyers’ conduct or fees.

 Before the lawyer’s services are retained by a client, or as soon as reasonably practicable afterwards, either:

- a written estimate should be given for the work, which should not be exceeded without the consent of the client (the estimate should include, so far as practicable, all likely costs involved including disbursements and court filing fees)
- if it is not practicable to give an estimate, the solicitor should either explain why and give a forecast within a possible range of estimates or give the best possible information about the cost of the next stage or stages of the matter
- alternatively, the client should be able to state their budget, which should not be exceeded without their consent
- the lawyer should be required to explain the possible outcomes of the matter and their likely effect on cost (including the amount the client would likely recover in the event of success, the likely extent of the client’s liability to pay the opponent’s costs in the event of failure).

 As the matter progresses:

- The lawyer should keep the client up to date about costs, including court fees incurred or likely to be incurred, lawyers fees, disbursements and liability for the other party’s costs. This means delivering interim bills and notifying the client in writing about any changes in circumstances that will affect costs. The extent to which this would be appropriate will depend on the level of the claim – the amount of time preparing bills should not be disproportionate nor increase cost for the client.

R17 Failure to adhere to these standards should lead to censure of the practitioner in question, and should be capable of amounting to misconduct or conduct unbecoming a barrister or solicitor.

R18 Law firms should be required to operate an internal complaints handling procedure.

R19 The Ministry of Justice website should provide, with explanatory notes, information on all the costs of going to court, including the cost recovery scales. A brochure setting out this information should be sent in response to the filing of a statement of claim and statement of defence.

R20 The New Zealand Law Society, or an independent body, should assume responsibility for providing independent comparative costs information for consumers on legal fees.

R21 The Ministry of Justice should undertake further research into alternatives to legal aid, such as contingency legal aid funds, for funding or supporting litigation.

R22 There should be ongoing evaluation of the effect of court fees on court usage.

R23 The availability of a waiver of court fees should be publicised in a way that is likely to reach unrepresented litigants.

1.6 Incorporating Diversity

R24 The Ministry of Justice should investigate:

• the designation of staff as liaison officers or facilitators to assist groups with particular access issues arising from their ethnicity, disability or any other special concerns, and to advise the court about ways to improve services for these people
• staff training to assist people with special needs for assistance with court processes.


R25 The Ministry of Justice should develop a national policy for the hiring of interpreters, including setting minimum qualifications, standards, and other requirements.

R26 In accordance with the New Zealand Disability Strategy, the Ministry of Justice should review court facilities from the perspective of all types of impairment and experience of disability, to determine specific measures that will improve access to justice for people with disabilities.

R27 The treatment of victims should be enhanced by implementation of two measures, previously recommended by the Law Commission:

 there should be discretion for all witnesses to be screened while giving evidence, or to give evidence on video, where need is established, regardless of the nature of the crime
 victims should have access to separate rooms at all courts.

R28 When implementing recommendations that will improve access and support for people coming to court, the Ministry of Justice should include consideration of the diverse needs of minority groups, including their particular concerns about:

 access to useful information
 provision for support people in court proceedings
 alternatives to mainstream criminal justice processes.

PART 2: OUTSIDE THE COURT

2.1 The Place of Alternative Criminal Justice Processes

R29 A set of guiding principles should be adopted for alternative criminal justice models operating outside the direct supervision of the court, with such legislative amendment as necessary to ensure they protect the rights and interests of victims and defendants.

2.2 Infringements and Minor Offences

R30 One statutory framework should be developed to regulate the establishment of infringement offence schemes and procedures.

R31 Penalties for infringement offences should be reviewed to ensure there is proportionality between the behaviour being regulated and the penalty imposed.

R32 The minor offence regime should be examined to determine whether some minor offences should be reclassified as infringement offences, or removed from the statute books altogether.

2.3 Police Warnings and Formal Cautions

R33 A new formal police caution process should replace the current police diversion process with legislative amendments to permit the changes to be implemented.


2.4 Restorative Justice

R34 Policies, including funding policies should be developed for the operation of restorative justice programmes under the Sentencing Act 2002 and Victims’ Rights Act 2002 that ensure high standards of accountability, consistency, equity and transparency.

R35 Regulations should be developed to provide for best process standards in the provision of restorative justice programmes and the monitoring and enforcement of offenders’ plans prior to sentencing.

2.6 State Mediation Services

R36 One organisation should take responsibility for coordinating all state-managed mediation services to ensure they remain accessible and meet high standards.

R37 Mediation should be available through the coordinated service for a small fee, to parties with general civil disputes under $50,000.

2.7 Court-Mandated Mediation

R38 There should be a presumption that cases filed on the standard case management track in the proposed Primary Civil Court and the High Court will go to mediation before the 13th week after filing.

R39 The judge should have discretion to excuse parties from mediation, or to allow the parties to delay mediation.

R40 A multi-disciplinary working group of mediation practitioners, lawyers, policy-makers and trainers should oversee the implementation of court-mandated mediation and advise on:

 the qualification level required for mediators to be placed on the court list
 a code of ethics and review or complaints procedure
 rules for privilege and confidentiality, mediator immunity and good faith of the parties in the mediation.

R41 Parties should be free to choose their own mediator or to use one contracted by the Ministry of Justice.

R42 Parties using a mediator contracted by the Ministry of Justice should pay an additional fee set at a level that protects access to justice, in accordance with established principles for setting civil court fees. The fee should be a percentage of the relevant setting down fee.

R43 Waivers available for court fees should also apply to mediation fees.

R44 Judges should be able to order the parties to an appeal to attend mediation prior to the hearing.


PART 3: COURT STRUCTURE

Primary Courts

R45 The following nine courts should be collectively termed the Primary Courts:

 Community Court
 Primary Civil Court
 Primary Criminal Court
 Family Court
 Youth Court
 Environment Court
 Employment Court
 Mäori Land Court
 Coroners’ Court.

R46 The judges of the Primary Courts (excluding the Coroners’ Court) should be tenured Primary Court judges warranted by the Attorney-General to sit in a particular court or courts.

R47 Each court should be headed by a Chief or Principal Judge, or Coroner, with responsibility for leadership and advocacy of the jurisdiction, judicial rostering, and oversight of law reform, emerging problems and court procedures.

R48 A Chief Primary Court Judge, together with the judicial heads of each Primary Court, should have responsibility for overseeing the Primary Courts and coordinating their respective interests through a Primary Courts Consultative Council.

Appeals

R49 The first appeal from a Primary Court should be a general appeal to the High Court, on both fact and law, as of right, with the exception of the first appeal from the Mäori Land Court, which is to the Mäori Appellate Court.

R50 Further appeal from the High Court should be on a matter of law only and should require leave of the Court of Appeal.

R51 Applications for leave to appeal should be heard by the receiving court.

R52 The High Court should have primary responsibility for maintaining consistency in the application of legal principle, supervising the operation of other courts and the exercise of administrative power – functions which derive from its role as an appellate court, and the court responsible for judicial review.

R53 The Court of Appeal should be a strong, intermediate appellate court with sufficient time to give adequate consideration to the complex and significant cases that come before it.

PART 4: THE COMMUNITY COURT

Establishing the Community Court

R54 A Community Court should be established at the same level as the other Primary Courts to deal with the high volume, less serious, criminal and civil cases currently heard in the District Court.

R55 The court should have original jurisdiction over all cases heard summarily with a possible maximum penalty of 10 years’ imprisonment, and should hear the preliminary hearings of indictable offences. The court should hear civil disputes up to a value of $50,000.

R56 The Community Court should be a specialist court with its own principles, style and processes.

R57 Principles should be developed, in consultation with community representatives, to guide the ongoing operation of the Community Court, and be included in the founding legislation.

R58 The principles should reflect the need for each Community Court to be accessible and responsive to its community, to deal effectively with criminal behaviour, to provide early clarification of issues and understandable processes for those with cases in the Community Court and to be a portal for general information and advice for all court jurisdictions. The court and its community

The court and its community

R59 A national advisory group with community representatives should be established to advise on the development and implementation of the Community Court concept.

R60 The Ministry of Justice should seek advice from Mäori leadership as to how appropriate Mäori representation should be achieved at a strategic level.

R61 Each Community Court should have a Community Court Consultation Group, with a membership that represents the community where it is situated.

R62 Each Community Court should employ one or more Community Liaison Officers with responsibility for maintaining a two-way dialogue with the community and court users.

R63 Each Community Court Consultation Group must include representatives of local iwi and hapü.

R64 Judges and staff should work with the Community Court Consultation Group in an ongoing relationship, to enhance the effectiveness of the court’s processes and practice for persons who attend the court who are Mäori; or from ethnic and cultural minority and disability groups.

R65 One of the Community Liaison Officer’s core functions should be to establish formal and enduring relationships with local marae, runanga and urban entities.

4.2 Criminal Processes in the Community Court

R66 Current work to reform and streamline the criminal list process should be given high priority.

R67 The responsibility for scheduling cases set down for hearing in the criminal list court should lie solely with the court registry.

R68 The police should vary the dates on which defendants released on bail or summons following arrest are required to make their first appearance in court in order to maintain an even volume of court appearances, when this is possible.

R69 The requirement for police to swear informations laid in court should be abolished, and informations should be able to be transferred electronically to courts by police.

R70 A court officer should be responsible for the court record, which should be read and signed by the judge at the end of each appearance.

4.3 Civil Processes in the Community Court

R71 There should be simple, understandable and widely available information about the Community Court and its processes.

Claims under $50,000

R72 Civil processes in the Community Court should be simplified to ensure that they facilitate access to justice and are proportional to the amount in dispute.

R73 A simplified, two-stage process should be implemented for civil claims under $50,000 with the following features:

 proceedings should be started by filing a pre-printed ‘claim form’, a list of up to five documents and a list of up to five witnesses
 notice served on the defendant should include an information pack and a pre-printed ‘defence form’
 the defence form must be filed and served within 21 days
 the pre-printed forms should be signed by the parties as a statement of truth
 a ‘case assessment conference’ should take place within 30 days of the filing of the defence
 if parties do not settle at the conference, the judge should complete a ‘directions summary’ form, for the trial
 the trial should take place within 90 days and should be heard by a different judge
 at the trial the judge should have the power to ask questions and to seek and receive such evidence as they see fit.

R74 Parties to proceedings in the Community Court should not have a right to general discovery.


R75 Cases should be able to be transferred to the proposed Primary Civil Court, either on application to a judge warranted to sit in that court, or by order of a Community Court judge.

Claims to recover civil debt

R76 The summary judgment procedure should not be available for claims under $50,000 heard in the Community Court.

R77 Default judgment should be able to be entered within 21 days of service on the defendant on any claim for a specified amount of money.

4.4 Disputes Tribunal and Tenancy Tribunal

R78 The Disputes Tribunal and Tenancy Tribunal should operate as the Disputes and Tenancy Divisions of the Community Court.

R79 All proceedings in the Disputes Tribunal should be recorded so that a transcript is available if a complaint is made or an appeal is sought.

4.5 Community Justice Officers

R80 A single judicial officer, known as a Community Justice Officer should exercise the current jurisdictions of the Community Magistrate, Justice of the Peace (in the exercise of their judicial functions), Disputes Tribunal Referee and Tenancy Adjudicator.

R81 Each Community Justice Officer should be warranted to sit in one or more of these jurisdictions, depending on their skills and experience.

R82 The summary criminal jurisdiction of Community Justice Officers should be the same as that currently exercised by Community Magistrates.

R83 The qualification for Community Justice Officers should be either:

 experience in practice as a barrister or solicitor or overseas equivalent, or
 capability, by reason of special knowledge or experience, of performing and exercising the duties, functions, and powers of one or more of the Community Justice Officer jurisdictions.

R84 Community Justice Officers should be appointed for a fixed term of five years, with the option of reappointment, but not beyond the age limit that applies to permanent judicial officers.

R85 A common rate should be paid to Community Justice Officers, set at a level that fairly reflects the importance of their judicial role and the significant volumes of civil and criminal cases they handle.

R86 Community Justice Officers should be able to be appointed to sit on a part-time basis.


PART 5: PRIMARY COURTS

5.1 Primary Criminal Court and Criminal Processes

Primary Criminal Court

R87 The Primary Criminal Court should sit as a separate court within the Primary Court structure, headed by a Principal Judge, and with judges warranted for that jurisdiction.

Allocating work between the Primary Criminal Court and the High Court

R88 The middle band of criminal offences should be abolished.

R89 The High Court should retain exclusive criminal jurisdiction for a defined group of offences. All other cases not in the jurisdiction of the Community Court should be heard in the Primary Criminal Court.

R90 The defined list of offences heard in the High Court should be based on the seriousness and complexity of offending. Legislation should be introduced after consultation with the judiciary, the police and the legal profession.

R91 There should be a means of transferring cases from the Primary Criminal Court to the High Court in exceptional circumstances, based on extraordinary matters at issue in the particular case.Criminal jury trials.

Criminal jury trials

R92 The threshold for an accused’s right to elect a jury trial should be limited to offences regarded as ‘serious’ by today’s standards.

R93 New Zealand should adopt the standard in the Canadian Charter of Rights and Freedoms 1982, and provide a right to trial by jury for cases with a maximum penalty of five years’ or more imprisonment.

R94 The prosecution as well as the accused should be able to apply for trial by a judge without a jury for offences with a maximum penalty of less than 14 years’ imprisonment, where the case is likely to exceed four weeks or 20 sitting days.

Reforms in progress

R95 There should be urgent implementation of the legislative reforms relating to criminal jury trials, currently planned to be introduced to Parliament in 2004, which aim to:

 enable juries to be more representative and competent
 allow majority verdicts of 11 jurors
 minimise the use of preliminary hearings at which witnesses give oral evidence
 standardise prosecution disclosure and provide for some defence disclosure.

5.2 Primary Civil Court and Civil Processes

Primary Civil Court

R96 A Primary Civil Court should sit as a separate court, forming part of the Primary Court structure, headed by a Principal Judge. The work of the court should be undertaken by Primary Court judges warranted to hear civil cases.

R97 The upper limit of the Primary Civil Court’s jurisdiction should be $500,000.

R98 The Primary Civil Court and High Court should share jurisdiction concurrently for cases up to $500,000.

R99 The provisions for transfer of cases between the Primary Civil Court and the High Court should remain unchanged.

Case management in the Primary Civil Court and High Court

R100 A suitably constituted body should undertake a project to redraft the rules of court, with the following aims:

 clarity and simplicity of language
 proportionality of procedure
 enhancing access to justice for all citizens.

R101 Seminars or other training should be offered on a regular basis for judges, managers, court staff and the profession, to enhance the effectiveness of case management.

R102 The case management rules for the High Court, as contained in the High Court Rules, and recently amended by the High Court Amendment Rules 2003, should be adopted in the Primary Civil Court, and in the interim, in the District Court for cases over $50,000.

R103 Case management conferences should also be used to explore possibilities for settling the dispute.

R104 A second case management conference should take place as a matter of course in Primary Civil Court and High Court standard track cases when no attempt to mediate a solution has been made.

R105 Unless the judge deems it unnecessary, parties should be required to attend the second case management conference if they have not been to mediation.

R106 If the parties mutually agree, and the judge consents, they should be able to tailor a regime responsive to the needs of their case instead of following the standard case management track. This regime should be subject to court management.


Other civil process issues in the Primary Civil Court and High Court

R107 The Rules Committee should give urgent consideration to the introduction of a ‘wasted costs’ rule.

R108 The rules relating to offers should be extended to include offers before cases are commenced.

R109 The consequences of failing to accept an offer where the other party (the offeror) does better than the terms of the offer should be set out explicitly in the rules, including the possibility of full indemnity costs, but leaving the court discretion to avoid any injustice that might result.

R110 We restate the recommendations made in our 2002 report on General Discovery and seek their early implementation.

5.3 Family Court and Youth Court

R111 The Family Court and Youth Court should sit as separate courts, forming two distinct parts of the Primary Court structure, each headed by a Principal Judge. Work in each court should be done by warranted judges.

5.4 Environment Court

R112 The Environment Court should sit as a separate court as part of the Primary Court structure, headed by a Principal Judge. Work in the court should continue to be done by warranted judges.

R113 There should be a general right of appeal – on matters of fact as well as law – from decisions of the Environment Court to the High Court. A further appeal should lie to the Court of Appeal with the leave of that court.

5.5 Employment Court

R114 The Employment Court should remain a specialist court.

R115 The Employment Court should sit as a separate court as part of the Primary Court structure, headed by a Chief Judge. Work in the court should continue to be done by warranted judges.

R116 There should be a right of general appeal from the Employment Court to the High Court, on matters of fact and law. There should be a further appeal to the Court of Appeal with leave, on matters of law only, and to the Supreme Court as at present.

R117 Applications for judicial review of decisions of the Employment Court should be heard in the High Court, rather than the Court of Appeal.


5.6 Mäori Land Court and Mäori Appellate Court

Jurisdiction and structure

R118 The jurisdiction of the Mäori Land Court should be increased to include all disputes involving communal Mäori assets.

R119 The Mäori Land Court should be a separate court within the Primary Court structure, headed by its own Chief Judge, and with judges warranted for that jurisdiction.

R120 Mäori Land Court judges should be able to appoint pü-wananga (experts in tikanga Mäori and whakapapa) and others with relevant skills to assist, as full members of the court, in particular cases.

Appeal rights

R121 The Mäori Appellate Court should be the forum for deciding any disputed issue of tikanga in all court litigation.

R122 Appeals from an opinion of the Mäori Appellate Court on tikanga should be capable of challenge only in the Supreme Court, and if leave to appeal is granted. This recommendation is not supported by Law Commissioners Ngatata Love and Frances Joychild, who consider decisions of the Mäori Appellate Court on matters of tikanga should be final.

R123 The present right of appeal from the Mäori Land Court to the Mäori Appellate Court should be retained.

R124 All determinations of the Mäori Appellate Court, other than on tikanga, should be subject to an appeal to the High Court, rather than the Court of Appeal and should continue to be subject to judicial review. This recommendation is not supported by Law Commissioners Ngatata Love and Frances Joychild, who consider there should be only a right of appeal on a question of law to the Supreme Court from the Mäori Appellate Court, although judicial review should remain in the High Court.

5.7 Coroners’ Court

R125 The coronial jurisdiction should be exercised through a Coroners’ Court, forming part of the Primary Court structure and headed by a Chief Coroner.

R126 There should be a general right of appeal to the High Court from a coroner’s findings.

PART 6: HIGH COURT, COURT OF APPEAL AND SUPREME COURT

6.1 The High Court

Criminal jurisdiction (these recommendations are made and discussed in Part 5.1)

R88 The middle band of criminal offences should be abolished.

R89 The High Court should retain exclusive criminal jurisdiction for a defined group of offences. All other cases not in the jurisdiction of the Community Court should be heard in the Primary Criminal Court.

R90 The defined list of offences heard in the High Court should be based on the seriousness and complexity of offending. Legislation should be introduced after consultation with the judiciary, the police and the legal profession.

R91 There should be a means of transferring cases from the Primary Criminal Court to the High Court in exceptional circumstances, based on extraordinary matters at issue in the particular case.

Civil jurisdiction

R127 The High Court should retain exclusive or predominant jurisdiction in the following areas: civil cases over $500,000, judicial review, arbitration, trusts and administration, admiralty, intellectual property, insolvency and probate.

R128 Panels of judges should be established in the High Court to allow a degree of specialisation at both first instance and on appeal, without detracting from the generalist nature of the High Court as a whole.

R129 The Commercial List should be discontinued and commercial cases managed within the general civil system. Complex cases should be assigned to a judge and managed on an individual listing basis.

R130 A small group of appropriately skilled, tenured Primary Court judges should be warranted to exercise the Office of Master of the High Court, as well as being warranted to hear cases in the Primary Civil Court

Supervisory jurisdiction: appeal and review (recommendations 49 and 52 are made and discussed in Part 3)

R49 The first appeal from a Primary Court should be a general appeal to the High Court, on both fact and law, as of right, with the exception of the first appeal from the Mäori Land Court, which is to the Mäori Appellate Court.

R52 The High Court should have primary responsibility for maintaining consistency in the application of legal principle, supervising the operation of other courts and the exercise of administrative power – functions which derive from its role as an appellate court, and the court responsible for judicial review.

R131 Appeals from Primary Criminal Court jury trials should go to a bench of three High Court judges in the High Court, with the potential for further appeal to the Court of Appeal with leave.

R132 Appeals from the Community Court should go to one High Court judge.

R133 Subject to specific exceptions, there should be a presumption that two High Court judges will hear all other appeals, including appeals from the tribunal structure.

6.2 Court of Appeal

R134 The Court of Appeal should no longer hear:

 appeals from jury trials in the proposed Primary Criminal Court
 appeals from the Employment Court or applications for judicial review of Employment Court decisions
 appeals from the Mäori Appellate Court.

R135 The Court of Appeal should always include one High Court judge on secondment. The secondment should be for a sufficient period to make it meaningful and useful for both courts, perhaps three or four months at a time.

PART 7: TRIBUNALS

7.1 A Coherent Framework for Tribunals

Unified tribunal framework

R136 Most of New Zealand’s tribunals should be integrated within a unified tribunal framework. Rationalisation of tribunals, their membership and processes should occur incrementally.

R137 The following bodies should be excluded from the new structure: the Waitangi Tribunal, the Securities Commission, the Commerce Commission, the Takeovers Panel, the Abortion Supervisory Committee, the Privacy Commissioner, the Employment Relations Authority, the Mental Health Review Tribunal, the New Zealand Parole Board, the Disputes Tribunal and the Tenancy Tribunal.

R138 Future tribunals should be established only in accordance with principle and in conformity with fixed guidelines. Unless exceptional circumstances exist, new tribunals should be integrated into the unified structure.

Judicial leadership

R139 The unified tribunal structure should have a President, who is a Primary Civil Court judge, together with two legally qualified deputies.

R140 Legislation should vest the President with the role of recommending to Government how particular tribunals can be merged, grouped or rationalised within the tribunal structure.

R141 The structure should build up a core of experienced tribunal members, who should sit in more than one of the constituent tribunals. The other members of tribunals should be people with particular skills and expertise in the specific areas.


A neutral administrative base

R142 To ensure independence exists and is seen to exist, the Ministry of Justice should administer all the tribunals in the unified structure.

7.2 Appeal Rights

R143 Appeals from tribunals within the unified framework should be to an appellate panel, made up of the President or Deputy President, a member of the tribunal in question, and a member from another tribunal.

R144 Appeals should be on matters of fact and/or law, depending on the primary statute which creates the particular tribunal.

R145 Any further appeal should be by leave to a full bench of the High Court, on a matter of law only.

PART 8: OPEN JUSTICE

8.1 The Principle of Open Justice

Family Court

R146 Family proceedings that are currently closed to the general public should remain closed.

R147 The court should have discretion to permit the attendance at family proceedings of support persons requested by a party.

R148 Accredited news media representatives should be permitted to attend family proceedings.

R149 There should be no restrictions on the reporting of family proceedings (other than those involving children or domestic violence) unless the court orders otherwise.

R150 In cases involving children or domestic violence, the media reporting of proceedings should be permitted, but details that would identify those involved in the proceedings must not be published unless the leave of the court is obtained.

R151 If leave of the court is sought, the court should not require a draft of the news report to be submitted for approval as a condition of leave to publish identifying details being granted.

Youth Court

R152 Proceedings in the Youth Court should remain closed to the general public.

R153 Accredited news media should be allowed to report on Youth Court proceedings and judgments so long as all identifying information is removed.

R154 The Youth Court should not require a draft of the news report to be submitted for approval prior to publication.

Name suppression in criminal cases

R155 Publication of identifying details of a person charged with an offence before they appear in court should be prohibited unless the person consents.

R156 After a person is charged, there should be a general presumption that publication of their name or identifying particulars should be prohibited until the substance of the case is gone into by the court. Exceptions should be made in certain circumstances.

R157 Where a request for name suppression of a victim in criminal proceedings is made, that request should be granted unless it would not be in the interests of justice to do so.

Civil cases

R158 Where practicable, the public should have access to routine civil procedural matters that are currently heard ‘in chambers’.

R159 The proceedings of the Disputes Tribunal should be conducted in public, with discretion for the referee to restrict access or reporting only when the public interest requires it.

Note taking in court

R160 The public should be able to take notes in a courtroom, subject to the general right of any judge to control conduct in their court.

ENDS

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