Access to Justice in an Age of Austerity

The motif of the present is that we are living in difficult fiscal times. Without getting into the debate as to whether this is accurate or is an ideologically-driven contention designed to secure a so-called smaller state, it is nevertheless worthwhile to explore what in the legal system is in the nice-to-have basket rather than the must-have basket. This was the aim behind a conference held on 11 March 2013, hosted by the Legal Research Foundation and the New Zealand Centre for Human Rights Law, Policy and Practice, which is based at the University of Auckland’s Faculty of Law.

Attendees, who included practitioners, policy makers and academics, were presented with a series of papers designed to explore the interplay between fiscal efficiency and the need to secure access to justice. The starting point was a discussion by Professor Paul Rishworth of the rights-based framework to which New Zealand subscribes through the New Zealand Bill of Rights Act – a “badge of civilisation” as Lord Cooke called it. As Professor Rishworth noted, the right to a fair trial is clearly an absolute one and so a moral imperative: but that does not say much about how it is to be achieved. In short, there might be different approaches that met the necessary standard for securing a just outcome and also a fair process.

Where the question of resourcing becomes particularly relevant to the area of access to justice in practice is in two areas, one of which is the provision of legal aid and the other of which is the judicial process. These topics were the focus of an understated but powerful presentation by Maria Kazmierow, a well-known practitioner in the family courts, “the court for ordinary New Zealanders”, as she described it. Her focus was on the changes that have occurred recently and those that are proposed, including: court closures; the problems that arose from the centralisation of court files in Auckland (including delays in serving protective orders); and suggested fees for making use of court services - all of which have a chilling effect on access to justice. More worryingly, proposals to require court hearings without lawyers will mean that there is no legal aid for assistance before a hearing, but a party who can afford it will be able to involve a lawyer in drafting relevant documents and providing coaching. This, Kazmierow noted, will systematically discriminate between spouses who have unequal access to funds, and will require people to represent themselves in matters where emotions may be high and objectivity of the sort that can be provided by a lawyer is essential.

The conference then turned to criminal justice issues. Professor Rishworth had introduced the issue of legal aid provision and the potential remedies for its inadequacy in a criminal context. Rodney Harrison QC expressed several concerns about recent developments, his theme being the view of Judge Learned Hand that the rationing of justice posed a real danger to democracy. The central problem, he noted, was that the reductions in legal aid funding – which followed a failure to increase rates in accordance with inflation for many years – simply meant that many good lawyers were no longer willing to be involved. He was followed by Mark Ierace SC, the Senior Public Defender for New South Wales, who outlined the longestablished regime of the Public Defender in NSW, its role in law reform and training for the profession, and in being available to offer advice to the independent bar. But, he added, it was his position that the Public Defender should not be expanded in such a way as to put at risk the independent bar.

The afternoon sessions of the Conference turned to two discrete areas. The first, the issue of access to justice by those subject to coercion under mental health legislation, was addressed by Judge Phil Recordon. His Honour’s long career as a District Inspector and a District Court Judge, whose roster includes a significant number of mental health applications, meant that he was ideally placed to outline and comment on the issue in the context of a vulnerable group of people. This was followed by Royden Hindle, until recently Chairperson of the Human Rights Review Tribunal, who provided a thoughtful account of modifications that could be made to the HRRT to improve its efficacy as a core component of the protection of access to justice in relation to arguments of discrimination.

A number of commentators were involved in the Conference. These included Brendan Horsley, Director of the Public Defence Service in New Zealand, who provided a brief commentary on both papers, emphasising a concern that steps needed to be taken to ensure the quality of criminal defence advocates; and Rosslyn Noonan, formerly the Chief Human Rights Commissioner and now a Research Fellow at the New Zealand Centre for Human Rights Law, Policy and Practice. The Conference finished with a panel discussion, including questions and contributions from the floor.

The central message from the speakers was that access to justice is a constitutional fundament and so not one that can be compromised by claimed resource constraints; and that changes to processes, which governments can quite properly introduce, should be tested against this standard.

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