“YES MINISTER”

Auckland-based members of the legal profession and judiciary had the opportunity to hear from and put questions to the Minister of Justice, the Hon Amy Adams, at an ADLS breakfast at the Northern Club on Friday 18 September 2015.

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The Minister sported a white camellia in honour of Suffrage Day, and exhorted the profession to continue to think of ways to encourage talented women to continue on to senior positions in the profession. “Part-time partnership absolutely works,” she said, and encouraged the profession to “take ownership” of the issue.

Having now completed almost one year with responsibility for the Justice portfolio, the Minister treated attendees to a very insightful discussion of her experiences to date and her projects and priorities for the remainder of the parliamentary term. However, she was also made to “sing for her supper”, fielding a number of curly questions both from ADLS President Brian Keene QC and from the floor.

“I am really enjoying the opportunity to stretch the legal side of my brain again,” she said of her ministerial responsibilities, but admitted that her natural impatience to see things get done often struggles with the “glacial pace” at which things can move through the parliamentary process: “It is like going from six minute units to six month units.”

Her headline message was about “harm reduction” and an increasing drive to look at the criminal justice sector through a “societal benefit lens”. She pointed to some positive statistics and trends to date (crime at a 35 year low, more police on the streets, a new Chief Victims Advisor to give victims a voice in policy-making decisions, a 25% reduction over the last year in the age of District Court cases, increased use of ADR freeing up more court time, etc), but appreciated that “there is still a lot to improve”.

Family violence – information sharing vs privacy

Topping the Minister’s list of areas for improvement is New Zealand’s track record in the area of family violence – as a country we have the embarrassing distinction of the highest levels of intimate partner violence in the OECD.

“This is an area that is not dropping nearly enough,” said the Minister. While public place violence has dropped, figures for violence in the home remain “stubbornly and unaccountably high”, with around half of all homicides associated with domestic violence, she noted. Minister Adams says she is “absolutely convinced that we can make improvements”, but that this may involve “prodding a few sacred cows”.

One such obstacle is poor inter-agency information sharing practices. To address this, privacy law reforms may also be needed. The Minister lamented the number of times she has read coroners’ reports only to find that if someone had “joined the dots” of a family’s history, a death could have been avoided. She compared this to the recent Philip Smith case, where lack of information sharing (due to privacy concerns) partly contributed to his ability to escape the country unhindered. “In my view, safety trumps privacy,” she said. When asked whether she envisaged amendments to privacy legislation to make this clear, the Minister’s answer was a decided “yes” – “We need to send signals legislatively that we are prioritising safety.”

Another area she intends to look at is the overrepresentation of Māori in the system. While quick to point out that domestic violence “happens in every single community in New Zealand”, the Minister shared some fairly grim statistics.

While applauding the good work being done by the Rangatahi courts, community iwi justice panels and Whānau Ora programmes, she stressed the need for earlier intervention to assist the “very small number of people who make up the largest number of statistics we are concerned about”. The Minister discussed recent research which indicates that it is possible to predict at age five which children are more likely to end up on the benefit or in prison later in life (for example, by looking at factors such as whether and how many times the child has been referred to CYFS or whether they have had a parent in prison).

Early investment is also key in areas such as the rehabilitation of people with alcohol and drug dependency issues in our prisons and courts – the “catch and release, catch and release” approach to dealing with persistent substance abusers “has got to be wrong”, with the AODTC in Waitakere providing a good example of a successful alternative approach.

Solutions to these issues will not lie with the justice portfolio alone, but in better coordination between it and the health, education, child and youth welfare sectors – quite a change from the traditional public sector approach of dealing with these areas in “silos”. Paraphrasing the Hon Bill English, the Minister said “We don’t want eight white Corollas parked in the driveway of one family!”

Trust law reform

Minister Adams also sees her job as involving a “guardianship role over legal infrastructure”, and has chosen to tackle trusts as a key area to bring up to date under her present tenure. She praised the Law Commission’s recent work in this area, which prompted her to “shoot this up the queue”. “New Zealand has an incredibly high use of trusts per capita. But many trustees and settlors are actually not very clear about some of the key concepts and requirements, so we have to move cautiously”, she said.

While she does not envisage a very different approach being taken to the recommendations made by the Law Commission, some of them (for example transition and its application to existing trusts, and the proposed fixed perpetuity period of 150 years) need to be “road-tested and tyrekicked”, and to that end a trust reference group has been established, with a Bill possible in the second half of next year.

Access to justice – court fees, litigants in person and legal aid

Mr Keene QC brought the question of court fees before the Minister, as part of the “access to justice” debate which has engaged the profession of late. He noted a recent article in The Guardian (17 August 2015), which discussed the coincidence of increased employment tribunal fees with an 80% reduction in the numbers of sexual discrimination claims being brought – a trend which he suggested offered “proof that fees do matter to access to justice”.

Minister Adams agreed that court fees are relevant to access to justice and that they are “always a difficult issue”. However, she considers that court fees in New Zealand actually compare quite favourably to those in many other jurisdictions and, in any case, that they are “one of the smallest components in the cost of bringing a case to court”. Add to that the limited Justice budget and the many competing possible places where it could be allocated and the Minister has to make appropriate decisions and “trade-off calls” as to where money is best spent.

Mr Keene QC also commented on the spectacular rise in numbers of litigants appearing in person, which he suggested may mirror the fall in legal aid. He noted that new guidance from the Law Society in England appears to require opposing counsel (as part of their duty to the court) to assist litigants in person on the other side with procedural matters.

In his view, this approaches the “thin end of the wedge”, and could be difficult to reconcile with the duty to one’s own client. While he thought it more appropriate for judges to offer such hints and guidance from the bench to ensure all litigants can put their case with “equality of arms”, he wondered whether legal aid budgetary savings have in fact been “sucked up” by the amount of time and resources being spent on self-represented litigants.

Minister Adams noted that this issue is not unique to New Zealand, and that Ministry of Justice research indicates that access to legal aid is only one of the reasons why people may choose to self-represent. Work is apparently ongoing to put together a “toolkit” about how to support self-represented litigants within the system, while not putting undue burdens on opposing counsel or the bench.

A final question from the floor was a query about the timing and feasibility of a large-scale move to paperless courts. While the Minister confirmed that this was “absolutely the end goal”, she stressed the need to “think long and hard” first and ensure that standardised systems are in place, laughingly saying that she “didn’t want ‘Novocourt’ on my watch!”.

Many of these questions will require co-operation between the Ministry, the judiciary and the profession, which together need to function as a “three-legged stool”, in the Minister’s analogy – each in alignment in order to make progress.

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