ADDRESS TO THE
NEW ZEALAND CENTRE FOR PUBLIC LAW
FIRST ANNUAL CONFERENCE: COURTS
AT VICTORIA UNIVERSITY OF WELLINGTON
NOVEMBER 2003
by
HON JUSTICE J BRUCE ROBERTSON
PRESIDENT
NEW ZEALAND LAW COMMISSION
IS JUSTICE AVAILABLE TO ALL?
DELIVERING ON A PROMISE
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.
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.
ENDS