SUMMARY OF KEY THEMES
Delivering Justice for All
A vision for New Zealand courts and tribunals
SUMMARY OF KEY THEMES
ACHIEVING ACCESS (Part 1)
Submissions and consultation revealed serious concerns about the lack of user-friendly information and advice available
about the court system and legal services. This means that civil litigants and criminal defendants are more likely to
make poor choices about their situation, they may not know their rights and how to protect them, and many issues may end
up in court unnecessarily. This is costly for the court system and the individuals involved.
The Law Commission considers that:
- the state has responsibility to ensure the public has access to information and initial legal advice
- accountability for quality, coordination and delivery of information is needed
- the Ministry of Justice should take the lead in providing information about court procedures, and ensure relevant
information is available in courthouses
- a state agency should have the lead responsibility to create and maintain a national network for the provision of
initial legal advice
- the advice and representation options available to litigants and defendants should be improved, for example, there
should be an enhanced duty solicitor scheme.
The high cost of going to court was one of the most frequent themes in submissions. Many people considered costs
prohibitive. The commission recommends ways of improving the way the legal services market works by making sure
litigants have as much information about cost and options as possible to help them to make informed decisions. It also
acknowledges that costs must be contained by the introduction of simpler court processes that are easier to understand.
The commission also makes recommendations to improve access to the courts for people whose ethnic descent, culture,
gender or physical ability differs from the dominant group in society.
OUTSIDE THE COURT (Part 2)
One of the commission’s key aims during this review has been to ensure that those issues that can be resolved, often
more consensually, outside the courtroom, are indeed disposed of without the need for judicial determination. This saves
time and money for all involved.
However, the commission is also keen to ensure that when this is done, there is a principled and transparent framework
in place. The commission recommends that:
- a statutory framework should be developed to regulate infringements and to ensure proportionality of penalty
- a new formal policy caution process should replace the current police diversion scheme
- policies and regulations should be developed to ensure high standards for the operation of restorative justice under
the Sentencing Act 2002 and Victims’ Rights Act 2002.
The commission also recognises the value of mediation as a way of resolving disputes – mediation often produces
solutions that are far more agreeable to disputing parties, and can be a speedier and far more effective way of
resolving problems. But the commission is concerned about the way that the mediation market is developing in New
Zealand. The cost of some forms of mediation means that, like the general court system, it is becoming out of reach for
many New Zealanders.
The commission recommends that one organisation should coordinate existing state-managed mediation services to ensure
that they are accessible to the public and meet high standards. In addition to the subsidised or free mediation services
currently available in the Family, Environment, Employment and Tenancy jurisdictions, mediation should be available to
parties with general civil disputes below $50,000.
For cases of a value of more than $50,000 that are filed in court, there should be a presumption (from which parties can
be exempted by application) that the parties will have tried to resolve their dispute through mediation within 13 weeks
of filing.
COMMUNITY COURT (Part 4)
Most New Zealanders who have dealings with the court system are highly critical of the way the system treats them. There
is a feeling that the courts are operating for those who work in them, rather than those they serve.
The Law Commission recommends a redistribution of the work that represents the less serious and highest volume of the
District Court’s caseload. It is very clear from submissions and consultation that this is where the court system is at
its least efficient, most costly, and least effective.
Widespread feelings of alienation from the court where most New Zealanders participate in our justice system is a
serious problem. Public confidence that the system will deliver justice is vital to a stable democratic society.
A critical reason for the current deficiencies is the fact that the District Court is seriously overloaded. The breadth
of its jurisdiction and its caseload has grown beyond anything envisaged when it was set up in 1980. This has led to
pressures that mean the court is not working efficiently or effectively for normal New Zealanders.
To ensure that the highest volume of the court system’s work – the less serious matters in the District Court – receives
the attention it deserves, the commission is convinced that a new start is required. The commission does not recommend
the introduction of a new layer into the court system. Instead it suggests a reorganisation of resources, and a new
dedication to this part of the system. This ‘high volume’ work should be dealt with:
- in a specialist arena with its own culture and philosophy catering specifically for these types of cases, and the
types of people involved
- with judges specially warranted because of their skills in dealing with this type of work
- new straightforward processes tailored to these types of cases, and
- with more dedicated administrative support than is currently the case.
The work of the community court will constitute the major part of all primary court work and will be carried out in what
are currently District Courts. In that sense the change is slight. But a new focus will see significant change for
people coming to court - in terms of support, availability of information and ability to deal with their cases
effectively.
There is increasing recognition overseas that local courts have a legitimate role in understanding the particular
tensions that contribute to criminality or disputes in their locality, and responding appropriately to them. The
Community Court would be the gateway for the local community to the justice system. The commission recommends that
community representatives should be consulted about the way their local court works and that the court should be
responsive to the issues of concern of its particular population mix.
Without a significant change in structure, culture and process, the commission does not consider public trust and
confidence in the District Court can be maintained. Simply adding more resources to the District Court will not suffice.
The strong recommendation of the commission is that the bold step of establishing a distinct Community Court is needed
to significantly improve the experience of all who, by choice or because they are forced there, go to court.
PRIMARY COURTS (Parts 3 and 5)
Submissions and the commission’s research identified a number of problems in the present court structure, in particular:
- the very high volumes and wide range of work to be dealt with by the District Court, which can result in delay, mean
judges may not have sufficient time for cases that need it, and can create unnecessary stress and anxiety for those
using the courts at this level
- a lack of understanding of the supervisory function of the High Court
- inconsistency and confusion in appeal rights and pathways.
The commission has concluded that a coherent and principled framework is needed for the court system, which harnesses
our existing resources to deliver justice more consistently throughout the country.
The Law Commission proposes a structure in which there are nine “Primary Courts”, being the courts whose principal
function is to conduct the first formal hearing of a case and make a decision. The new structure departs from the
generalist District Court model.
The core role of the High Court should be to review for legality the exercise of all authority whether by primary courts
or the executive.
The commission recommends that the Primary Criminal Court should hear most criminal jury trials apart from the most
serious, for example, murder. The mechanism (called middle banding) whereby cases are transferred between the District
Court and High Court at present should be discontinued.
The Primary Civil Court should have jurisdiction for cases up to $500,000. This is higher than the level in the present
District Court, and would mean that parties could decide that a dispute between $200,000 and $500,000 was heard in one
of 64 locations countrywide, instead of just the 17 High Court locations at present. Judges should be warranted to sit
in the court, and the court should be led by a Principal Judge. This would ensure greater focus on this area of work.
The Environment, Employment and Mäori Land Courts should remain specialist courts but their appeal routes should change.
Appeals from the Environment and Employment Courts should be directly to the High Court on matters of fact and law.
Cases progressing through these courts should not escape the critical review for legality and supervision of the High
Court.
All appeals from the Mäori Land Court should go to the Mäori Appellate Court, but decisions from that court should also
be subject to the review of the High Court.
The Family and Youth Courts would become ‘courts’, and not divisions of the District Court as they are now.
There should also be a Coroners’ Court, with a Chief Coroner, through which the coroner’s jurisdiction should be
exercised. Appeals from coroner’s decisions should also lie to the High Court.
HIGH COURT AND COURT OF APPEAL (Part 6)
The Law Commission has made proposals to confirm the key supervisory role of the High Court in New Zealand’s court
system.
The High Court hears appeals and applications for judicial review of decisions of most other courts. The commission
recommends that appeals from all Primary Courts should go to the High Court, on issues of both fact and law (except the
Mäori Land Court, which should in the first instance go to the Mäori Appellate Court).
The High Court should also continue to have original jurisdiction in important criminal and civil cases.
One of the issues raised in the review was the need for some increased specialisation in the way civil cases are heard
in the High Court in the interests of efficiency and quality of decision-making. The commission’s aim has been to
increase the opportunities for specialisation in the High Court without threatening the flexibility or integrity of the
court.
The commission recommends that the High Court institute a ‘panel’ system, which would allow judges to nominate areas of
particular interest to them while still remaining available for all work within the court’s civil and criminal
jurisidiction and in judicial review. Establishing panels in taxation, intellectual property, competition and admiralty
law is an appropriate start, and panels could also be established to reflect the specialist Primary Courts. This panel
model would also allow for an element of specialisation in the High Court when it is hearing appeals, while maintaining
the advantages of a generalist court.
At present the Court of Appeal is heavily overloaded. The commission recommends changes to reduce the workload of the
Court of Appeal and ensure that judges have adequate opportunity for proper consideration of the cases that come before
it. In particular, the commission recommends that a bench of three judges in the High Court should hear appeals from
criminal jury trials in the District Court rather than these going directly to the Court of Appeal.
The establishment of the Supreme Court was not intended to supplant the role of the Court of Appeal. A strong,
intermediate appellate court at this level is essential for the health of the court system. In practical terms the Court
of Appeal will continue to be New Zealand’s principal appellate court, and for most cases it will in effect be the final
appellate court.
TRIBUNALS (Part 7)
New Zealand has a wide range of tribunals, some of which are well known, with experienced members and well established
procedures. Others sit infrequently and are not always well supported. Many were set up in response to specific needs,
and lack any coherent framework or settled pattern. Some tribunals are housed and resourced by government departments,
which are directly affected by their decisions. This can throw their neutrality and independence (or at least the
perception of this) into question.
The Law Commission recommends that most of New Zealand’s tribunals should be integrated within a unified tribunal
framework. A Primary Court judge should head the framework, and have responsibility for the rationalisation of tribunals
over time.
This recommendation should allow tribunals to be obviously accessible, allow members to be better resourced, trained and
more widely used in a range of compatible jurisdictions, allow needless differences of process and structure to be
eliminated, and secure greater efficiencies and economies of scale.
It is proposed that the following tribunals be excluded from the new framework: the Waitangi Tribunal, the Securities
Commission, the Commerce Commission, the Takeovers Panel, the Abortion Supervisory Committee, the Privacy Commissioner,
the Employment Relations Authority, the Mental Health Review Tribunal, the New Zealand Parole Board, the Disputes
Tribunal and the Tenancy Tribunal.
The commission also recommends that whenever there is a call for a new tribunal, a principled analysis should be
undertaken to determine if the matter can in fact be dealt with by the courts, or by an existing tribunal. If a new
tribunal is truly needed, it should be included within the unified framework, unless there are very good reasons to
exclude it and have it free-standing.
OPEN JUSTICE (Part 8)
As part of its review of the court system, the Law Commission considered the principle of open justice. Open processes
are central to maintaining public confidence in the administration of justice and ensuring the accountability of judges.
However there are some instances where limiting the openness of the court is justified, including:
- protection of the vulnerable
- administration of justice (such as the need to ensure a fair trial)
- commercial secrecy
- overriding privacy interests
The Law Commission concluded that although most exceptions to the openness principle in New Zealand are justified, some
significant changes should be made.
The commission recommends, amongst other things, that:
- Proceedings in the Family Court that are currently closed, should remain closed to the general public, but accredited
news media representatives should be able to attend all proceedings and report on proceedings (other than those
involving children or domestic violence) unless the court orders otherwise. In cases involving children or domestic
violence, the media must not report details that would identify those involved, unless leave of the court is obtained.
- Proceedings in the Youth Court should remain closed to the general public, but accredited news media should be able to
report on proceedings without the court’s approval so long as identifying information is removed.
- The Family and Youth Courts should not require a draft of the news report to be submitted for approval.
- Publication of identifying details of a person charged with an offence before they appear in court should be
prohibited unless the person consents.
- After a person is charged with an offence, there should be a general presumption that publication of their name or
identifying particulars should be restrained until the substance of the case is gone into in court. This would usually
be when a guilty plea is entered; or, in serious cases at deposition hearings and in summary cases at the defended
hearing.
ENDS