Balancing the scales to make justice fair

By ANDREW LAXON

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

In an 89-page report issued today, the commission says one of the fundamental principles of New Zealand's justice system is that everyone is equal before the law.

"But it is debatable whether this principle of justice for all is always being achieved in practice."

The report says the court system does not enjoy the full support and confidence of all parts of society.

People from minority groups often do not feel confident that they understand what goes on or that they will be understood or fairly treated.

The discussion paper, called Striking the Balance, is the first stage in a three-part review, commissioned by the Government, of the structure and operation of the court system.

The public can make submissions until July 12. The commission will then write a second paper suggesting options for reform, and give a final report to the Government with firm recommendations by April next year.

The main changes suggested in today's discussion paper are:

Lawyers' fees and legal aid

The cost of employing a lawyer is a barrier for some people who want to take civil disputes to court, the report says. It notes that legal aid is available for people on low incomes in criminal and civil cases, but the system is controversial.

Some argue legal aid is unfairly limited to those on the lowest incomes, and that not enough is paid for some cases.

Others claim that legal aid is too generous, encouraging those who receive it to use tactics they would never spend their own money on, particularly in criminal cases and the Family Court.

The report suggests a range of possible answers:

Lawyers could charge lower fees.

More money could be provided for legal aid.

The income threshold to qualify for legal aid could be lowered.

The Government could employ lawyers who offer legal services directly to the public (known in the United States as "public defenders" in criminal cases).

The Government could "question" the level of lawyers' fees it is prepared to pay.

The report says significant change has already been made to the legal aid scheme through the creation of a national Legal Services Agency, which is responsible for ensuring a consistent approach across the country.

Also, the Government has said it will soon review the eligibility rules.

The report adds that serious criminal trials have become so complex and lengthy that hardly anyone can afford their own defence.

"As a result, virtually all major criminal trials necessarily involve legal aid.

"This can lead to community disquiet, especially in high-profile cases that involve horrific allegations."

It also notes controversy over the level of court fees for civil cases - which were raised by the Government last October despite an outcry from lawyers.

As a result, the cost of filing to start proceedings in the High Court has risen from $120 to $900, and the cost of setting down a hearing from $650 to $2200.

Delays in the court process

Too often, the courts seem to be run for the convenience of those who work in the system, rather than those who use it, says the report.

For example, people required to attend a court sitting are often all told to come at 10am, even though they cannot all be dealt with at that time.

"This may be administratively efficient, or at least easy, but it can be frustrating and unsatisfactory for those who have to wait."

More seriously, the report says, the longer-term debilitating effects on people waiting for court hearings and then decisions cannot be overestimated.

Long delays in criminal cases are unfair to defendants and their families, as well as victims and witnesses.

"In the Family Court, delays in dealing with fractured or dysfunctional relationships can be destructive and sometimes dangerous.

"In civil cases, being locked into an exhaustive discovery exercise can be crippling for a business trying to survive."

Many people, it notes, find the court's processes as difficult and distressing as the incident that led to the civil dispute or criminal allegation.

The report says criminal cases status hearings, which allow a judge to clarify whether a case needs to be heard, have already streamlined the system. It questions whether more cases could be dealt with out of court.

So-called "restorative justice" could lead to the dismissal of fewer serious cases if offenders agreed to make amends with their victims.

It cautions that these pre-court screening procedures must not prejudice any trial or compromise the presumption of innocence.

In civil cases, the report suggests greater use of the Employment Court's insistence on mediation and investigation first.

Both sides could be asked to start by summarising their basic position on a "without prejudice" basis for discussion with an independent person, be that a judge or other person.

The report complains that criminal and civil cases that go to trial waste too much time.

"Even the most complex commercial cases over millions of dollars can be distilled into some basic issues, but the present system seldom seems to achieve this."

Criminal cases are no better.

"In a bank robbery, lengthy evidence can be given to establish that the robbery happened when this is not in doubt and the only matter in dispute is whether the person charged was actively and knowingly involved."

The report says there are "critical and controversial" questions about the extent to which evidence should be disclosed before a court hearing.

Early disclosure means both sides know each other's strengths and weaknesses, which can speed up the case but cut across the traditional adversarial system.

"For better or worse, disclosure severely reduces the ability to produce 'rabbits out of hats'."

It says judges or registrars can speed up cases by setting deadlines, rather than leaving it to lawyers.

However, this "case management" approach has been criticised by some judges and lawyers, who believe it could make judges less impartial and force lawyers to keep reporting to the court.

New courts

A new bottom-level court may be needed to deal with smaller cases, says the report.

It says the District Court is overloaded. In a typical week, a judge hears everything from dog registration offences to a multiple rape or serious commercial dispute.

This has led to calls for a new court to deal with less-serious criminal cases and smaller civil cases, possibly involving sums of less than $50,000. It could be similar to the old Magistrates Court, which was replaced by the District Court in 1980.

The report questions why there are specialist environmental and employment courts, but complex case subjects such as intellectual property are heard in general courts.

It suggests that the Maori Land Court and Maori Appellate Court - both developed in the 19th century to deal with issues of that time - need a broader jurisdiction, and that their judges should be available for work in other courts.

The report says there are about 100 tribunals, which have "mushroomed seemingly without rhyme or reason".

Many are vulnerable to perceptions of improper influence because they work alongside and are supported by the organisations they have to make rulings on, it says.

It suggests that New Zealand consider a super-tribunal approach used in Victoria, Australia, in which a stand-alone body, headed by judges, has set high standards.

The report also suggests that all appeals could be heard by a single court of permanent judges, supplemented by a judge with specialist knowledge of that legal area. This court would operate one step below the final court of appeal - now the Privy Council and soon to become the locally based Supreme Court.

Untrained lawyers and

judicial officers

The commission says it has been argued that people should be allowed to have a lay person represent them in court. This could lead to greater choice and lower costs.

But the report says the untrained representative is less likely to understand the law and court processes. Judges may feel compelled to help the people they represent in the interests of a fair trial, but this creates the risk of an appeal.

Lay people do not have to follow the same rules as lawyers, and are not subject to disciplinary and ethical constraints.

But despite criticising the idea of untrained lawyers, the report defends the use of judicial officers (as opposed to judges) with no formal legal qualifications.

It says lay people make a considerable contribution to the justice system as justices of the peace, community magistrates who consider minor criminal matters in the District Court, Disputes Tribunal referees, Residency Tenancy Tribunal referees and coroners (although recently appointed coroners tend to have legal qualifications).

The report says decisions about which judicial officers must be legally qualified have been ad hoc.

It questions whether the amount of money at stake in a dispute is the best way to decide whether the person judging it needs legal training.

The report raises the possibility of part-time judges to encourage more women and non-Europeans into the job. But it says allowing practising lawyers to work as part-time judges could undermine public confidence in the independence of the judiciary.

Openness versus secrecy

Not everyone agrees with the practice of name suppression or the way some courts and tribunals, such as the Family Court and the Youth Court, are closed to the public and media, the report says.

It questions whether it would be better "to protect personal and intimate matters by way of orders prohibiting publication of some information rather than by excluding everybody from the courtroom".

Court locations

The report says there is no logical pattern to hearing locations.

For instance, the High Court sits in New Plymouth, Wanganui and Palmerston North, all within comfortable travelling distance of each other. But the High Court never sits in Tauranga, though there is a large volume of work there, and sessions in Timaru and Invercargill are sometimes cut short for lack of work.

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