Courts Minister committed to a 21st century court system

The Minister for Courts and Associate Minister of Justice, Hon Chester Borrows, visited ADLS on Thursday 7th March to speak to a lively audience of around fifty lawyers about planned changes to the justice system in 2013. The Minister addressed the assembled group, which included criminal, family law and resource management practitioners, for half an hour before opening the floor for questions.

First Mr Borrows praised the audience, saying “I am grateful for your work. And I’m proud of the justice system that your work supports.” Then, in a candid speech, he went on to acknowledge that there were improvements to be made to the existing court system, outlining some of the big changes pegged for implementation in 2013.

“Change is never easy, but it has to be done” was the catch-cry, as Mr Borrows highlighted his primary goal of moving the court system into the 21st century, by making better use of technology both in the courtroom and in the procedural aspects of law, and his commitment to making changes to current practice that will enhance the user experience of all those involved.

He began by illustrating the challenges of delivering change, discussing one particular project that was mooted since he took over as Minister for Courts at the end of 2011. A proposal is underway to move the defendant’s position in the courtroom so that they no longer sit hidden away in the dock, disconnected from the process which is affecting their life and actions, and from their lawyer’s involvement on their behalf. Instead, the Minister maintained, they should be situated in front of the judge, next to counsel, in order to ensure better understanding and engagement by the defendant.

However, Mr Borrows was frustrated to note that some judges have objected to this suggestion on security grounds, and that there has also been some resistance from lawyers he has spoken to. He is pleased that various District Court judges have been more responsive, and that this move is about to be trialled at North Shore District Court.

A key message of the talk also formed an acknowledgment of previous failings in implementing change. “Change can be scary, and it should never be made uncritically. Government does not have a monopoly on good ideas, and is more than capable of coming up with bad ideas. We can, should, and must, engage in constructive debate on ideas”, he said.

He therefore sees his biggest task as formulating and implementing a court system that best suits the needs of all its users.

The Minister said that the Government’s proven success in reducing crime, which is at a 30- year low, provided the opportunity to capitalise on technology and implement significant improvements.

He began by acknowledging criticisms that have been levelled at the current court system, particularly around issues of increasing costs and lengthy delays. He noted the obligation to maintain archaic paper systems has also kept us back from moving into the electronic era which would enable the reduction of time taken to perform certain actions. “We want to get things moving”, he said. The Criminal Procedure Act 2011 enables certain changes that will see improvement over time, but “[it] will not operate in a vacuum” – while an excellent starting point for providing the platform for improvements to the criminal court system, it will take the work of the courts’ administration to manifest change.

The expansion of information technologies in court is one such advance. This will commence with the electronic filing of police charges from July this year, which will save 93,000 hours of police and court staff time per year, and result in faster and better services for court users.

Falling case volumes are providing the opportunity to improve how the District Courts are administered. To this point, the Minister acknowledged the closing and/or repurposing of nine smaller courts last year, particularly the decision to use some courts only for hearings and the consequent ability to concentrate resources on key areas of need.

He said the introduction of online application and fee payment for the Disputes Tribunal was already proving a success for users and administrators, and signalled the technological way forward in other areas.

The Minister spoke of a potential future where proceedings are conducted by web-based, online judges – for example using Skype from their chambers – so that counsel and clients don’t have to appear physically in the same room as the judge or Justice of the Peace, but could still be seen efficiently and effectively.

About all of the proposals, the Minister was clear. “These changes will only work if you are willing to engage constructively with the new system. I have no doubt that over the next few months, as we work towards these changes going live, we will at times disagree. They will be disagreements driven, on both sides, by a genuine desire to produce the best and most effective court system for New Zealand.”

The Minister acknowledged the inevitable challenge ahead in light of his experience with the operating model for Auckland Family and Civil courts last year. “The Ministry of Justice now takes the problems in the Auckland Family Courts very seriously. It has invested the time and resources to fix these problems. But I want to acknowledge that we did not appreciate the scope of the issues you were raising as quickly as we should have”, he said. He added his thanks to the private bar for their subsequent involvement: “Identifying and fixing these problems would never have been possible without the constructive way you engaged with us in finding solutions.”

During question time, various ADLS members spoke of their concerns with some of the proposals, to which Mr Borrows listened and gave frank responses. He is known to like working “on the street” rather than in the high echelons of policy, with a desire to speak frankly and be to-the-point. To this end, he said that he saw the audience as “the independent voice of law” from whom he wanted to hear suggestions and feedback, reiterating his desire for the opportunity to move forward and to have a dialogue that had been missing for some time.

A member pointed out that proposed centralisation in the family court system had proved a disaster, and the Minister accepted that this is true. There was concern expressed that with the Family Law reforms there had not appeared to be a fixed mission, nor an IT platform put in place to enable implementation of changes. Mr Borrows admitted he didn’t always hear when things weren’t working in certain areas. Another member said that practitioners want meaningful discussion at a point where decisions have yet to be made, not when it is too late. The Minister was in complete agreement that in the past decisions have been made with insufficient consultation, and that he is committed to ensuring this won’t happen in the future.

When asked where the decision-making power for each issue sits, the Minister explained that the Attorney-General deals with judges; the Minister of Justice deals with justice policy; whereas Mr Borrows’ responsibility is with procedural and operational issues, that is, the implementation of the Ministry of Justice’s policy.

In a further demonstration that he avoids taking the party line and is prepared to face the hard questions and accusations, Minister Borrows offered “If you’re not getting it, email me”. He said that collaboration is happening more now than it has in the past. When legal aid was raised as a current problem, the Minister was candid in conceding “There was damage done by the Dame Beasley report [into legal aid] that brought about sweeping changes”, and suggested they could be more creative around legal aid, and that options are being considered.

The issue of family violence courts and Rangatahi courts was also raised, and the Minister said although it doesn’t mean we won’t get there, that it is hard to get consensus on these issues.

Throughout his talk, the Minister was not afraid to answer the tough questions or disagree with the questioner’s point of view, providing for a dialogue that was considered interesting and worthwhile by those present.

The closing remarks of his speech sum up the task at hand: “Our justice system is based on enduring and important principles…Our challenge is to build a 21st century court system. A system which upholds the defining principles of the rule of law, of free and fair justice, but does so within the social context of our time.”

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