NZLC PP52 : Seeking Solutions : Options for Change to the New Zealand Court System

Seeking solutions Options for change to the New Zealand Court System have your say Part 2 December 2002 Wellington, New Zealand This document is also available on the Internet at the Law Commission’s website: http://www.lawcom.govt.nz Preliminary Paper 52 The Law Commission Postal address: PO Box 2590, Wellington 6001 Document Exchange Number: SP 23534 Telephone: 04 473 3453, Facsimile: 04 471 0959 Email: [email protected] Internet: www.lawcom.govt.nz Preliminary Paper/Law Commission, Wellington, 2002 ISSN 0113-2245 ISBN 1-877187-94-1 This preliminary paper may be cited as: NZLC PP52 ii About the Law Commission… The Law Commission is an independent, publicly funded, central advisory body, established by statute in 1985 to promote the systematic review, reform and development of the law of New Zealand. In making its recommendations, the Commission must take into account te ao Mäori (the Mäori dimension) and give consideration to the multicultural character of New Zealand society. It must also have regard to the desirability of simplifying the expression and content of the law, as far as that is practicable. The Law Commission has up to six members who are appointed for terms of up to five years. The present Commissioners are: The Hon Justice J Bruce Robertson – President Judge Patrick Keane Professor Ngatata Love QSO JP Vivienne Ullrich QC iii iv Contents Foreword 1 Terms of reference for the review of the New Zealand court system 3 About this document 4 Glossary of terms 7 Part One: Voices 11 General Themes 12 Maori- 24 Ethnic Minorities 32 Victims of Crime 40 Disabled People 48 Part Two: Access To Court 55 Information 55 Connecting with Courts 64 Representation 73 Cost 85 Part Three: Court Processes 101 Criminal 101 Outside the Court 103 The Criminal List 114 Criminal Jury Trials 120 Civil 124 Alternative Dispute Resolution 126 Court and Case Management Processes 133 High Volume Cases 141 Open Justice 148 Part Four: Court Structure 155 General Courts 155 Specialist Courts 173 Maori- Land Court and Maori- Appellate Court 187 Tribunals 196 Appeals 207 What Do You Think? 217 Chapter Summary 217 Submissions 237 v vi Foreword: Seeking Solutions Public confidence in the courts cannot be taken for granted. The maintenance of our democratic constitutional arrangements depends, among other things, on people in all parts of society having confidence in the justice system. Courts have to work well – and be seen to work well – for our democracy to work well. The Law Commission published Striking the Balance – the first discussion document paper in this review of the courts, which the commission is carrying out at the Government’s request – to try to capture the day to day reality for all people who are involved in the court system. We were heartened by the responses. The commission has received more submissions to Striking the Balance than on any paper in the past five years, and there has been further feedback through formal and informal consultation with individuals and groups. The breadth and depth of the contributions indicated the importance people place on our court system and how well it functions. The responses do, however, demonstrate that there are serious issues for people who come into contact with the courts. This discussion document analyses these issues, and national and international issues and trends in court reform. The court system is founded on the principle that all people must be equal before the law and all must have equivalent access to the law. This exercise has proved – if proof was needed – that this is no longer the case in New Zealand. We are seeking solutions to redress this. Many of the issues are exceedingly difficult – but this is not a reason to avoid them. We identify options ranging over an array of issues. Some will be attractive to some sectors but quite unacceptable to others. None are concluded views. We are raising possible changes which might – while the fundamental core of our system is preserved or enhanced – improve the operation of the courts and make them more accessible to the entire community and not merely parts of it. We certainly do not have any monopoly on ideas as to the best changes. If we are to turn the rhetoric of universally available equal justice into reality, we have to look for better ways. It is unacceptable to say those who criticise or advocate change are just malcontents. Our research suggests that altering jurisdictional lines and changing physical processes would be the least difficult part. Much more demanding will be changing attitudes and approaches which are deeply entrenched but which unintentionally create barriers and alienate too many people. 1 We have not lost sight of the fundamental tenet that the courts are an important part of our constitutional arrangements. Alterations can be made only after careful consideration. But if we are to acknowledge the dissatisfaction of many people in this country we must be prepared to hear everyone and treat their perspectives seriously. New Zealand prides itself on being a leader of social reform. But when it comes to justice and its application through the courts we appear to be lagging behind countries we compare with such as the UK, Australia and Canada. Their recent experiences could assist us. In the end we must have solutions that are of and for New Zealanders. Just as our law is better for being tested and tempered by society, so too will be any review of our courts where those laws are applied. The Law Commission urges readers to respond. J Bruce Robertson President Law Commission 2 Terms of Reference The Law Commission will consider and report upon the structure of all state-based adjudicative bodies for New Zealand (apart from the Court of Appeal and Privy Council or institutions in substitution therefore) including: (a) The volume and nature of work requiring attention (b) The appropriate form, nature, and operation of the Courts and Tribunals required to meet all current needs and expectations. (c) The original jurisdiction of the District and High Courts and associated Tribunals. (d) The appellate relationship between the District and High Courts, including the form of the appellate regime for appeals from specialist Courts and tribunals, particularly the Family Court and the Environment Court. (e) The interrelationship of the Employment Court, the Mäori Land Court and the Mäori Appellate Court, with the District Court and the High Court. (f) The relationship between the District Court and the High Court and administrative tribunals and other quasi-judicial bodies with regard to both appeal and review. (g) The role and function of Masters and Registrars within the total Court structure. (h) The overall structure of how less serious criminal and civil matters may be dealt with in the District Courts. (i) The rights of appeal from the District Court and the High Court to whatever appellate structure exists above them. The Commission will have particular regard to its statutory obligations to take account of te ao Mäori (The Mäori dimension) and the multi-cultural character of New Zealand society in this exercise. May 2001 3 About this document Seeking Solutions is the second discussion document in a three-stage review of the New Zealand court system by the Law Commission. This document is in five parts: Voices summarises the most common and strongly held views that people voiced about the court system and the suggestions they made to improve it in the submissions and consultation meetings that followed the May 2002 release of Striking the Balance. Following the summary of general themes are four chapters presenting the views of four groups of New Zealanders who have particular perspectives on the system: Mäori, people belonging to ethnic minorities, victims and people with disabilities. Access to courts discusses the four main problem areas for most people who use the courts. The first of these is the lack of available, and suitable, legal and court-related information to help people make informed choices about their rights and duties. When it comes to connecting with courts, questions about the best compromise between bricks and mortar and information technologies are considered. The system assumes that people coming before the courts will be represented by qualified, capable lawyers when, in reality, increasing numbers of people are without representation. Finally, more and more New Zealanders consider the cost of court action so high as to put access to courts beyond their reach. Processes discusses criminal and civil justice processes and seeks ways to make the court system more efficient while ensuring that processes are proportionate to the issues, and the rights of all parties are safeguarded. The criminal justice section starts with discussion of the ways the state deals with offenders outside the court such as the police discretion to warn, caution or divert, restorative processes, and minor and infringement offences. The criminal list chapter considers ways of making the list court a more understandable, less alienating place whilst retaining its efficiency. The next chapter considers ways of reducing delays by the pre-trial management of jury trials. The civil justice section also starts with discussion of ways cases can be resolved out of court, by greater use of alternative dispute resolution. The next chapter examines whether the current use of court rules and case management to supervise civil cases can be reformed to bring greater efficiency and fairness to the system and reduce cost. The last chapter looks at the processes for high volume cases – debt and small claims – that make up the large majority of the District Court caseload, and whether these might be streamlined. The final chapter discusses open justice in both criminal and civil courts, in particular the public’s access to court hearings and to the records of court hearings, as well as what can be published about hearings.

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