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Is Justice Available To All? - Justice Robertson





The Law Commission is in the final stages of a multi-year project, reviewing the structure and operation of New Zealand’s Courts. It has been a demanding process, sometimes dispiriting, sometimes stimulating, always challenging, conscious as we had to be of the potential for this important task.

We were invited by government to undertake a review of the structure and operation of all State- supported adjudicative bodies in New Zealand, including all Courts and Tribunals except the Supreme Court. Our terms of reference were designed with the assumption that there would be a political determination about the final Court of Appeal for New Zealand, and our recommendations would be constructed around that new reality.

While the final court is a critical piece of any court structure, the most significant aspects of the exercise have little to do with the apex and much more to do with the base of our court system.

The exercise forced us first of all to consider the place of Courts within our governmental structure. The legal system is a fundamental part of any modern democracy. The Courts are properly described as the “third arm of Government”.

But that high level truism needs to be carefully unpicked and examined when embarking on a review like ours. The question needs to be asked why have Courts at all? The answer is that, in a modern democracy, it is essential that there be a State-supported adjudicative system which is available to vindicate rights and enforce responsibilities in a backstop position, the ultimate determiner of all issues of legality within our society.

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There will always be individual women and men with problems who need to enlist the assistance of the Courts, whether in contest with one another or with government itself. There will be parts of Government which need to initiate and enforce action, not least of all the Police. There will be large and small commercial entities and informal groupings of people who need determinations of rights and responsibilities.

So for the Court system to fulfil its function within the community, it must be organised so it is accessible to the vast and diverse array of potential litigants. It must have processes which ensure all litigants are able to enjoy the rights which the Courts must provide in a principled, independent and objective way.

Having recognised the need for a backstop adjudicative system in any democracy, the first requirement is that this be entirely independent, able to provide unbiased assessments without outside influence. This is the justification for the tenure of judges, for the separation of powers, for the proper resourcing of the Court system, and for the isolation of those who make decisions from any who have a particular interest in the outcome. Although these basics may not exist throughout the world, I am pleased to say that this is not perceived as a serious issue in New Zealand, although the administrative support for some tribunal functions does call for reconsideration.

I said the courts occupy a “backstop” position in our democracy. Their role is not boundless.

First, Courts, though the ultimate arbiter on all issues of legality, cannot initiate any action themselves. Courts decide cases. They resolve controversies. They can only respond to the dispute which a litigant chooses to place before them. And even once a party requests the intervention of the Court, the Court is limited by the pleadings in a civil case and the charge in a criminal case and always by the law in making an adjudication on only the facts in dispute and assessing the consequences of the application of legal principle to them. Courts are never self-starting in respect of what they adjudicate upon.

This nature of the Courts’ position as the third arm of Government is of particular importance in assessing how they must be available, responsive and sensitive to the needs and expectations of the entire community. Courts exist to respond to the society in which they operate and to be able to be accessed by all who have the need to call for their aid and intervention.

This is linked to another limitation on the role of courts. As recent decades have demonstrated, there are more and more situations where potential litigants are choosing to resolve their disputes outside the formal Court and Tribunal network. That is not to be deprecated. Some are concerned that this trend means that the Courts are not provided with the opportunity to develop the law. That is a consequence of what is occurring, but if one treats the Courts as having a backstop role, and keeps in mind the fact that they have no initiating position, then that is simply a consequence of the constitutional arrangement. In the long run it could affect the ability of the Courts to superintend all activities for legality but it would take a fundamental change to affect that trend. Many also believe that a resolution, which the parties feel they own, is healthy and to be encouraged.

Finally, before I turn to our review and some its conclusions, we need to acknowledge that few, if any, people go to Court because they particularly want to. In at least half the cases people are there because someone else has forced them into the Court, whether in the criminal sphere or the civil sphere. And even those who are initiators, most are there more often than not because there was no alternative.

While for most of us in this room Courts are familiar places, either for our work or for our study, it is important to remember that Courts are not places with which most people choose to be involved – they may be recognised as necessary, as essential for ensuring that legality in our society is maintained and legal integrity is preserved but, given the option, most people will try and avoid becoming involved with Courts at all.

Now I would like to turn to our review of New Zealand’s court system. The Commission began its task by talking to those who were most closely engaged with the system, the Judges, lawyers and Court staff who have a continuing involvement in the system and its operation. Their appreciation of its workings was a necessary starting point. But we did not stop there as we were of the clear view that we needed to find out as much as we could about the experiences and the views of our entire community.

The Courts are a constitutional arrangement for the benefit of all citizens. Their perceptions, needs and expectations are critical tests of the health of the system.

Many observers of our process were sceptical, and sometimes vocally critical, of us wanting to hear the views and expectations of the broad community. Some suggested it would do nothing but provide an outlet for the malcontents and discontents. I am pleased to report that was not our experience. The overwhelming reaction was of positive goodwill coupled with the sorts of critiques which are an essential part of a determination to see something work better. We heard neither a wholesale condemnation nor a closed-eyed accolade.

Some consistent and fundamental messages came to us. The first was that currently the system and its operations were too slow, too costly, alien and alienating. We faithfully recorded what we heard. This was debunked as populist cant and it was suggested that, by providing this opportunity for people to express their views, we fell into the possibility of feeding people’s unhappiness instead of maintaining adherence to constitutional principle and the upholding of the Courts’ fundamental role.

In our judgment, responding to the views of citizens need not lead to that outcome. On the contrary, the fundamental constitutional role of the Court, and people’s responses to it, should align one with the other.

If access to the law and the protection it can provide are to be more than high-sounding rhetoric, our review had to begin with a scrupulous and uninhibited assessment of whether the commendable sentiments which all articulate are accurate reflections of everyone’s reality today. Are the Courts truly available to everybody who needs to use the opportunities which the justice network can provide? Who else could give us the evidence on which to make such an assessment than the New Zealand citizenry?

The response which came to us from all sectors was that Courts too often excluded people rather than providing an environment in which they could comfortably and naturally seek redress or assistance. It was of course axiomatic that those who are involved in the Court or Tribunal system would almost inevitably be under a degree of strain or pressure so it is never going to be a happy or desirable experience. That, however, is not a reason why people should find the involvement demeaning or so intimidating as to render them unable to participate in it fully. One might have expected this reaction from people who are less educated and less confident. But the message of alienation and discomfort came from across the board – as much from big business and corporate entities as from ordinary folk.

The identified problems can be summarised as:
a) a lack of information or understanding about what the system was, how it could be used to initiate action, and what possibilities existed when someone was drawn into it against their will,
b) the high legal costs and filing fees, and the economic consequences of the distraction from other productive activities which inevitably arise,
c) the time involved and the exhaustion of being caught in the system, and
d) people feeling as though they were not able to tell their story, to be understood or be responded to in a way which was meaningful to them.

For most of our submitters, these problems were seen as more often than not unintentional consequences of the system. We found few people who did not believe that there was goodwill and a desire to meet their needs by the system and most of those who operate it. However, there was a perception of inflexibility and an inward-looking focus which prevented the Courts from being properly responsive to the needs of those who became involved.

A significant number of those from whom we heard, stressed the fact that our adversarial system is predicated on the basis that there will be competent, professional representatives for each party, all of whom are well resourced and fully on top of the case. They tell us that this is just not the reality which means that the system operates in an uneven and unsatisfactory manner. There was an alarming assessment from too many people that “you get the justice you can pay for.”

No one realistically imagines that there is suddenly going to be a substantial increase in the $100 million which is already spent on legal aid, but there must be some changes to ensure that the lack of any (or sufficiently competent) legal representation does not distort the delivery of justice. The simplistic suggestion for levelling the playing field is that Judges could become more actively involved, but that raises the risk of compromising their independence and objectivity, which would have serious consequences.

Throughout our research and investigation, evidence of enormous information gaps has been exposed. This is easy to brush off, especially by those of us who do not need basic information to understand our courts, but I stress that a remarkable number of the issues which were brought to the Commission could be sorted out by better provision of basic information. A primary recommendation which we must make is that government, through some appropriate agency, accepts responsibility to ensure that everybody knows what is available to them in the justice system, what rights they have, how they will be expected to meet their responsibilities so they can, in fact, make use of the system in the way which is intended. Currently, although piecemeal work is undertaken, there is no ultimate responsibility for ensuring uniformity of delivery and constant standards being met. Guidance, information and leading people into and through the system must be part of government’s responsibility if “access to justice” is to have any real meaning.

As well as the individual costs of those who wish to use the system, there are the not insubstantial costs of maintaining the system itself. Some have expressed understandable apprehension that if accessibility is improved, demand will be increased and there will be a need for even more resources. If that turns out to be the case, we do not resile from our conclusions that steps must be taken to improve access to justice.

The Commission is not persuaded that, at the bottom line of the balance sheet, the changes we will propose will necessarily cost more. At the moment much time and effort is taken up in Courts and Tribunals with processes which do not actively assist in the efficient sorting out of a controversy. We are satisfied there is an over-arching need for greater sifting and more focus in everything that occurs, and that this will aid individuals involved and the efficiency of the system as a whole.

There are areas in which steps of this sort have been taken. The case management system in civil cases in both the High Court and District Court is an example. About that, however, there is a degree of disquiet as to whether the system has become an end in itself rather than a means of getting the earliest and best disposal of a controversy, which is the ultimate aim of every litigant.

If all litigants were forced at an early stage to confront their opposition, to determine the nature of their dispute, to refine the actual areas in controversy, then the need for processes which do not assist that early resolution could be avoided. Everybody appears to agree that it is desirable for people to resolve matters for themselves. Even if they cannot get ultimate resolution, it is better if they can narrow the issues in dispute and therefore maintain control and ownership in the eventual outcomes.

This “sifting” process is more difficult in the criminal area because of the onus of proof, the standard of proof, and important constitutional safeguards,. The work which is being done on the status hearing procedure and preliminary conferences before criminal trials may, however, provide advances which do not distort the fundamentals.

The area of the Courts’ work where there is most strain on and dissatisfaction from all participants, from Judge to clerk to defendant, is the high-volume, less serious civil and criminal cases. This is not because of a lack of commitment by Judges, counsel or staff but a consequence of the intolerable demands of the numbers involved and a lack of proper resourcing in this arena. In our view this must be remedied.

There was a time when family matters and cases involving children and teenagers were in similar orphan categories. The creation of the Family Court in the early 1980’s and the Youth Court at the end of that decade have delivered new approaches. We now find committed, involved, determined Judges and practitioners who ensure that requisite professionalism and sensitivity are maintained.

We are of the clear view that there needs to be a separate and dedicated “Community Court” to deal with summary criminal cases and civil disputes involving less than $50,000.

There is no need for such change for jury trials, now almost entirely in the District Court, which are receiving sufficient attention although there are some backlogs which need addressing.

The high-volume matters are where most people have a connection with the system (and in fact the only place where most people have a connection with the system). They are simply not receiving the attention they deserve. For instance, although we have the Residential Tenancies Tribunal and the Disputes Tribunal with special areas of responsibility, civil cases involving less than $50,000 are generally not worth litigating because the cost involved is greater than the ultimate return. But $50,000 is a huge sum for most New Zealand citizens. Something is wrong when the court system is, in practice, not available to assist in these instances.

What we must create is an environment in which the less serious criminal cases and civil cases involving amounts which in absolute terms may not be great, but which in terms of those who are affected by them can be totally destructive of their future lives, get a proper and proportionate response.

In the criminal area we cannot avoid the fact that the bulk of the defendants are people who are not of European extraction. What happens now is not responsive to either the tangata whenua or the large Pacific Island or Asian populations who are involved. In our view there need to be Community Courts which have meaningful ties to their actual community areas so that the Courts, while independent and applying the same law to all, are a living response to the sector of the society which they exist to serve.

Turning to matters more rarefied and structural, at the heart of our constitutional arrangements is the High Court (the Court of inherent jurisdiction), the Court which has the responsibility for supervision and the maintenance of legality and standards. Arranged around it there should be an arc of primary Courts, all at an equivalent level and all of which are subject to appeal to, and judicial review by, the High Court.

If the system is to deliver justice, then the available Courts and Tribunals must provide adequate and accessible cover in all areas in which adjudication will be required. A starting point has been Courts of general jurisdiction, but over a substantial period of time specialist jurisdictions have been carved off. Whether some of these would arise if one was starting from a totally fresh-fields approach is problematic, but we have not been persuaded that the disruption and dislocation in collapsing any of them back into the general Courts would provide sufficient benefit to justify such intervention.

It has been suggested that there are some new areas in which Courts of specialist jurisdiction might be created. We are not persuaded that the case has been made for that to occur, but having recognised the existence of, and the value in, specialist Courts it is essential that they do not become isolated from the mainstream so that a degree of in-house comfort leads to any compromise on fundamental principle. For that reason it is essential that the role of the High Court (as the body charged with the maintenance of standards, the supervision of operation and the upholding of legality) is part of a total structure which influences all that happens in other primary Courts.

In our existing arrangements there are some anomalous positions which have been developed and which, in our judgment, need to be altered so as to preserve that essential balance and interdependence throughout the system.

Finally, it is essential that every potential litigant knows how to use the system and how to respond if they are taken into its operation by someone else. There is no point in having a framework, however commendable in its shape and operation, if those who need to use it do not know how to or cannot fully exploit the potential to deliver the justice which it can provide.

There are now many anomalies. The current arrangement with the Employment Court is unsustainable. We are not satisfied that the Environment Court needs to be at some different level. Similarly it can be argued that the important work that is undertaken in the Maori Land Court (and where we would see the jurisdiction extended to include all communally owned assets and not just land) should be subject to the supervisory jurisdiction of the High Court.

It was a temporary expedient that appeals from District Court jury trials went to the Court of Appeal. There is no justification for that to continue. All cases should be subject to a touchstone of general principle through the High Court and its operation.

The nature of the appeal is of course important. In our view it should be a general appeal, such as is the nature of appeals presently between the District Court and the High Court or between the High Court and the Court of Appeal. That is not a hearing de novo, it is a carefully constructed arrangement which recognises the advantages that there have been in the primary Court, and particularly recognises the specialist nature of many of these primary jurisdictions and the deference which should therefore be paid to their assessments.

A further issue which arises is whether that should be an appeal to one Judge or more than one Judge. We consider that, from the Community Court, proportionality would suggest that the appeal should be to only one Judge in the High Court. In respect of criminal jury trials from the District Court, it is appropriate that they should be to a Bench of three as is the present arrangement when the matter goes to the Court of Appeal (normally a divisional Court which is made up of two High Court Judges in any event).

In respect of the rest of the primary Courts, presumptively we would take the view that the appeal should be to a full Bench, i.e. two or more Judges, with an ability to determine that in a given case the matter can appropriately be dealt with by only one Judge. Despite the vigorous and consistent opposition which is expressed by High Court Judges to any form of specialisation, everyone else involved or interested has advocated the need to better capture the skills, experience, and expertise of individual High Court Judges. The generalist nature of that Court is a strength and to be fostered, but there are competing interests and values which we are satisfied require greater weight.

Another area which requires change is the Tribunals system. This is an important part though often neglected of the State’s adjudicative process. At the moment our arrangements are haphazard and the processes do not have the uniformity and independence which are essential.

As has been successfully achieved in other parts of the world (particularly in some of the Australian States), we consider that there should be an umbrella organisation which has strong judicial leadership and which provides the hosting and administrative arrangement for all Tribunals. We would see a shell being created, the Judicial leadership appointed and then, as new members are required for all the Tribunals which would be hosted within this arrangement, steps could be taken to rationalise membership so as to capture experience and expertise and at the same time to have more standard, uniform and principled processes. This is a means by which individual expertise and experience can be married with the maintenance of principle and proper processes.

Finally, I return to the base of our court structure’s pyramid. It is there that our citizens encounter the courts, and there that people are experiencing a system which is slow, confusing, expensive, and alienating. That was the powerful and consistent message the Law Commission has received from citizens. We can do better and we must, to honour that core principle of access to justice for all citizens equally. Structures throughout the framework must equally be responsive to that fundamental precept, even when it involves some challenge to existing comfort zones.


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