The Law Commission is about to embark on a two-year investigation into our courts including how user-friendly they are.
But some years ago the Commission criticised Parliament's law-making processes, so perhaps it's time to again focus on
the law-makers not the law-breakers. Maree Howard writes.
Our courts are called courts of law, not courts of justice. In New Zealand, our adversarial system means that justice is
not synonymous with the law. Justice delayed is justice denied.
The Law Commission reported some years ago that too much legislation is wrongly focused and fails to address the issue
it is meant to; some legislation is unnecessary; much is hastily introduced, with fundamental issues still to be
addressed when bills go before select-committees; some is not in accord with accepted constitutional principles; and
much is simply inaccessible or hard to understand.
These are fundamental flaws rather than matters of mere presentation. They reflect the quality of advice that flows from
departments, on which much law is based and, more seriously, the absence of coherent policy guidelines within which
individual pieces of legislation play a part.
In these circumstances the public perception, at least, is that Parliament is paralysed and unable to tackle weightier
issues that the Government would presumably want to if its numbers were more comfortable. It might reasonably be thought
that Parliament would give deeper consideration to the legislation it does pass. That it would give more time to
fine-tuning, tidying-up, the messy legislation on the books. But amendment is simply piled on to amendment to the stage
that the law of this country is becoming unworkable.
Is it any wonder then, that each day thousands of New Zealanders must face an expensive judicial process in an often
over-burdened, yet unresponsive, court system.
For example, there is currently a backlog of 3,000 cases in the Environment Court alone. And in almost every other court
people often have to wait many months for their case to be heard.
Why? Are we such a nation of law-breakers that we need to be under the influence of thousands of laws and regulations
just to be a legitimate member of civil society?
Or are our laws written so badly, that people have to resort to the courts for an interpretation and a ruling when an
"authority" oversteps the mark or infringes on our basic democratic rights or obligations? The latter seems to be the
The Government has put on hold a proposal to increase court fees by more than 400%, but it is still under review. If
people can't even afford the court fees when coupled with the costs of lawyers fees, then the basic right to speedily
access independent judicial adjudication is denied.
Worse, if court fees rise and people can't afford a lawyer or get legal aid, then the courts can expect to see many New
Zealanders representing themselves in person which will create all sorts of problems.
Not the least being that an adversarial courts system is based on having two equally matched sides able to prepare and
present their respective cases with skill and in full.
I favour the inquisitorial system where seeking truth and justice is fundamental and the norm. The adversarial system of
litigation does not allow that because it is simply the best argument presented on the day which wins - truth and
justice can, and often does, fade into oblivion.
Bentham said: " Now and then, it is true, one error may be driven out, for a time, by an opposite error: one piece of
nonsense by another piece of nonsense: but for barring the door effectually and for ever against all error and all
nonsense, there is nothing like the simple truth."
The breakdown and pressures in our courts system has now reached the stage where judges are publicly criticising lawyers
and lawyers are publicly criticising judges. An investigation by the Law Commission into the operations of the courts
system will not solve that.
No, there is a pressure build-up in the courts which is now exploding because laws are poorly drafted, many are
unnecessary, and too many authorities now overstep the mark, are plainly wrong, or take powers unto themselves to which
they are not entitled. If that's wrong, them why are the courts so clogged?
To clear the backlog of cases and relieve some of the pressure and uncertainty for people it is time for night courts.
It happens overseas, so why not here?
And there also needs to be an extensive education programme for local and central government public servants and the
public so that those responsible for enforcing the law know their limitations prescribed in the law and the public
might, at last, understand the law.
Most politicians are well aware of the need for Parliament to become more disciplined and effective when drafting law.
They must also show they are prepared to tackle the solutions. And it's not just through a Law Commission investigation.