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Australian Law Reform Commission - Reform Journal |
Reform Issue 84 Autumn 2004
This article appeared on pages 41 – 43 of the original journal.
Delivering justice for all: New Zealand courts and tribunals
By J Bruce Robertson*
In March 2004, Hon David Benson-Pope, the Minister Responsible for the Law Commission, presented to the New Zealand House of Representatives the Commission’s report Delivering Justice for All: A Vision for New Zealand Courts and Tribunals.[1] The report completes the Commission’s review of the structure and operation of courts and tribunals.[2]
The Commission initially issued a report Striking the Balance, which sought views on how the system was operating, where the shoe was pinching and what possibilities there were for change. One of the hallmarks of the exercise has been our determination to involve the entire community in the review. Although judges, lawyers and administrators who spend so much time in the justice system necessarily have very important perspectives, courts and tribunals exist for citizens generally and their reactions and assessments are vital. We were also convinced that what happens the first time a case comes to court is pivotal, and that sustained time and energy are required at the less serious levels of litigation and not just in the rarefied appeal regimes.
Following an avalanche of submissions, and after widespread consultation, the Commission published a second paper Seeking Solutions, which raised possibilities for reform and again invited response and reaction.
The final document now provides a vision for courts and tribunals in the first part of the 21st century. The heart of the message is that, although there is a good, valid and principled system in place, too many people find it inaccessible and when they get there it is seen as an alien and uncomfortable environment.
The Commission was conscious throughout the review of the importance of ensuring that there should be no diminution in fundamental principles, but was convinced that ways were needed to turn into reality the rhetoric of the courts being the third arm of government protecting all peoples in all circumstances. How do you have a system that ensures equal and consistent justice is available for all in a way they can understand and in which they can participate?
The Commission’s guiding principles
Constitutionality: The independence of the judiciary is essential so that courts can both supervise their own activities and the legality of other branches of government. This ensures that courts have the confidence and respect of all that justice is being delivered equally and fairly.
Proportionality: The use of judicial talent and procedures should bear a sensible relationship to the nature of the dispute.
Quality decision making: Judges should know the law and should be able to apply it correctly to particular cases. Courts’ decisions should be clear as to what is to be done and by whom. Decisions must be consistent and legally authoritative but responsive to the uniqueness of specific situations. This involves the qualification, training and experience of those who adjudicate, fair processes in the way cases are presented and ensuring judges have sufficient time to deliver quality decisions.
Principled appeal rights: Every person who has their rights or obligations determined by a court should have a general right of appeal on fact and law. In general, subsequent appeals should be by leave, and will often be restricted to questions of law.
Accessibility: It is essential that everyone in the country is able to use courts and tribunals to assert or defend their rights. This raises issues of adequate information and advice, cost barriers, understandable processes and cultural responsiveness.
Respect for all: When people come to court they should be treated with respect, which may mean that the court makes allowances for their particular needs—cultural or otherwise. As far as possible they should come away feeling that what happened in court has relevance for them. They should know what happened and why.
Efficiency: The resources involved in supporting the court system must be managed so as to achieve timeliness and cost-effectiveness for both the parties and the taxpayers.
We have been at pains to emphasise that we are suggesting a package of reform proposals, and warn that it would seriously distort our recommendations if instead they are treated as a smorgasbord for random picking and choosing. Much of what we propose is inter-dependent.
Core recommendations
Five matters stand out as core in our recommendations. The first of these was access and availability. We have argued the need for a governmental department, ministry or agency to take responsibility for ensuring that adequate and accessible legal information and initial advice is available in a way that can be understood. The courts must be there for all litigants including the large proportion who are unwillingly involved. They must know what their rights are, what they have to do and where they are going. We recognise that work is done in this regard, often on a voluntary basis by community organisations, but delivery is uneven and there is no ultimate responsibility to ensure that it is properly provided across the board. We also support further development or initiatives that encourage cases to be dealt with effectively outside the court system, such as police cautions and restorative justice in the criminal jurisdiction, and mediation in the civil jurisdiction.
Secondly, we accepted the advice from all quarters that the District Court had become submerged in an intolerable volume and raft of work and that there was a need to carve off the less serious civil and criminal work. Although many submissions suggested this should be done by introducing a Magistracy (which has not existed in New Zealand since 1980 when the former Magistracy was converted into the District Court) we were not persuaded that is the best approach. We were adamant the work at this level is every bit as important as litigation about more dollars or where there is the potential for longer terms of imprisonment. It is different work but not less important. Drawing on the models of the Family Court and the Youth Court, which have developed during the past two decades, we consider there is an urgent need to create a Community Court, which would be dedicated to this less serious work but operating at the same level as—and not subservient to—other courts of original jurisdiction. The Community Court should employ processes that are tailored to the work heard there: simpler civil processes should be proportionate to the scale of the disputes and encourage early resolution; criminal procedures should ensure that everything that can be resolved outside the courtroom is dealt with in that way.
The judges must be as well qualified as other judges hearing matters at first instance. They need special skills and abilities to deal with these cases effectively and efficiently. Many who appear will be unrepresented and appeals will seldom occur so the skill, care and experience of those who preside is critical. It is work of the utmost importance to the litigants and ultimately to the entire community. This is the only place where most citizens will ever encounter the courts in operation.
Thirdly, we advocate an arc of Primary Courts where cases begin. New Zealand has some unusual historical anomalies. The Employment Court is at level between the High Court and the District Court. Some have argued that the Environment Court, presently at the level of the District Court, should be given a higher status. On balance we recommended that all primary courts should be at the same level. Hierarchies are of more importance to people in the system than those outside, and the overwhelming need is to have courts available to deal sensibly and effectively with all the particular aspects which require attention. All of these Primary Courts should be subject to appeal to the High Court and judicial review in that Court. We realise some will find this unsettling if not threatening, but we are convinced that a uniform and principled response to all aspects of the work is essential.
We were not attracted to the idea of collapsing the work of the High Court into that of other Primary Courts as has been recommended in the past. The High Court has a pivotal constitutional role that should not be minimised. To ensure its viability as an institution it needs to have a sufficient core of original litigation alongside its important appellate and review functions. The High Court should therefore continue to hear, at first instance, the most serious crimes and major civil cases. We also recommended that all appeals from all Primary Courts should, in the first instance, go to the High Court. The current situation where jury trials heard in the District Court go directly to the Court of Appeal has overburdened that Court and has no current principled rationale.
Finally, we have recommended a new umbrella tribunal framework with judicial leadership into which the bulk of the hundred tribunals operating in New Zealand would fall. As time goes on there will have to be an assessment of the need for each of the tribunals; whether its work could be properly dealt with in the general courts or in another tribunal; whether there could be a degree of shared membership; and the development of rigorous, sensitive and appropriate procedures. But from the beginning all tribunals would be supported by an independent administrative body.
The Commission awaits with interest the reactions of government and those who would be affected by our suggestions. We believe that with focus and discipline our courts can be available to all without a significant increase in overall resourcing. What can be disposed of early should be dealt with expeditiously and time and sophisticated processes reserved for matters that in truth require to be fully litigated. Going to court is unlikely to ever be a happy or welcome activity for litigants but it need not be so alien and exhausting that its value is robbed. We are sure that fundamental requirements of independent and objective adjudication with an opportunity for all to be heard and reasoned judgments provided can exist in a less intimidating and simpler environment.
* The Hon Justice J Bruce Robertson is the President of the New Zealand Law Commission.
Endnotes
{1} The report is available on the website of the Law Reform Commission of New Zealand <www.lawcom.govt.nz>.
{2} The terms of reference specifically excluded the ultimate appellate Court. When we received the reference in 2001, it was anticipated that there would be an early decision on whether or not New Zealand continued to maintain its links with the Privy Council. As it transpired, this was not resolved until late in 2003. Although it was a matter that was capable of separate consideration, it had consequences for the form and structure of the rest of the system.
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URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/2004/10.html