Justice moves into the 21st century
||New Zealand has one of the best performing justice systems in the world. We consistently rank highly as one of the world’s least corrupt countries. There is minimal corruption, a strong judiciary and high public confidence in our institutions. People and businesses who invest in New Zealand value our sound legal system.
But society and technology are changing rapidly. It’s increasingly clear New Zealand’s 20th century court system must be modernised in order to deliver justice in a 21st century world.
The legislative framework setting out the structure and process of our courts is complex. Lawyers and the public find aspects of this framework difficult to navigate at times. The Judicature Act 1908 is a particularly dated statute with inherent problems – complexity, archaic provisions and contradictions.
As a result, the Government asked the Law Commission to review key parts of courts legislation with particular focus on the Judicature Act. We have adopted many of the Law Commission’s recommendations and added other changes to help modernise the judicature framework.
Accessibility to courts is a priority for this Government. Our court system is one of the last areas of the public sector still operating a paper-based model. The legislative changes will do away with paper-only requirements in courts and tribunals, allowing court documents to be filed, held and issued electronically.
Using electronic signatures to commence proceedings, electronic issuing of documents by judicial officers and submission of affidavits and other documents will also be possible.
The place of filing and place of hearing will no longer be dependent on each other, so filing can take place in any court or tribunal within the same jurisdiction.
The 59 District Courts will be unified into a single jurisdiction to improve administration and management of resources across the country.
To further increase access to the courts, the proposed changes will see a statutory presumption that audio-visual link (AVL) technology will be used in criminal procedural matters where no evidence is being called. AVL allows prisoners to appear in court without leaving prison grounds, and this amendment will maximise its use.
The big benefit of using AVL technology for the legal profession is the reduction of adjournments and delays to cases resulting from prisoners not being transported to the right court on time. Fewer delays will mean less time being wasted for both lawyers and the court, and faster outcomes for defendants and victims.
It also improves public, court and prisoner safety, reduces the risk of contraband being smuggled into prisons, and reduces disruption to a prisoner’s routine.
AVL is also being trialled in some Family Court proceedings with a view to using this technology more widely in the courts, particularly when parties and their lawyers are distant from the court.
The District Court civil jurisdiction will be increased from $200,000 to $350,000. This change provides lawyers and clients with a greater choice of forum in which to argue cases. For practitioners it provides further flexibility - as a District Court is likely to be closer to their practice and may be more familiar for some.
Other changes agreed to by the Government seek to increase transparency of judicial functioning.
The Judiciary will need to set out, among other things, the process for following up on outstanding reserved judgments. This builds on expectations of timeliness for other parts of the legal profession as well as providing support for practitioners to make enquiries on behalf of clients waiting for their case to be decided.
There will be a statutory presumption that all decisions should be published online unless the judge decides there is reason not to publish. This means better public access to the large number of District Court decisions which are not easily available at present.
Legislation will also require the Judiciary to produce guidelines on the recusal of judges from cases. I acknowledge the Judiciary for taking steps in this direction already.
This requirement will formalise the availability of this information for each court. I know that lawyers occasionally have to ask questions about perceived judicial conflicts of interest; likewise judges have not always been completely clear on what is appropriate. Clear, public guidelines should either avert this from being a problem in the first instance or assist arguments that a judge’s assignment is inappropriate.
Lastly, I would like to highlight several changes that may not appear significant for the public but will be seen as overdue by the legal profession.
The first is the creation of a specialist commercial panel of judges in the High Court. Judges will be allocated from this panel to hear commercial cases if a party seeks a commercial panel judge. The Chief High Court Judge will manage key aspects of the panel such as the selection of panel judges and allocation of cases to each judge.
Panel judges will still be expected to sit on non-commercial cases and vice versa. Only cases where a party has indicated it wants a panel judge will be specifically referred to one. This maintains the generalist jurisdiction exercised by each High Court Judge while enabling better use of existing experience and expertise.
While support for judicial specialisation is not always universal, many practitioners and commercial clients do see advantages in this, especially in the High Court. After all, lawyers themselves often have to specialise in particular areas.
The final change I draw attention to is the introduction of a single, statutory system for the court award of interest on money claims. This replaces the principal statutory expression in section 87 of the Judicature Act. Key features of the scheme are the ability to award compound interest and pegging the indicator rate to the retail six-month deposit rate. This approach will encourage the early settlement of debts and provide greater certainty when advising what payment is likely.
These changes are only a sample of those included in the Government’s judicature reforms. Overall, these and other changes aim to provide clearer lines of judicial leadership and accountability, greater transparency and effectiveness of court and judicial processes. They will ultimately enhance public trust and confidence in New Zealand’s justice system.
The Government intends introducing a Bill to implement the changes later this year.
Full details on all changes can be found on the Ministry of Justice’s website at www.justice.govt.nz.