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GENERAL
COMMENTS
We
would like to begin by reiterating our support for this review.
As we discussed in our earlier submission on the first part of the
Commission’s review, Citizens Advice Bureaux receive, on average,
73,000 enquiries annually from a broad constituency of court users
relating to the full court system. We consider that the process
the Law Commission has used for this review has enabled it to canvass
a broad range of issues about the courts. We congratulate the Commission
on the second part of the review – it has proposed some useful solutions
to address the key issues.
The
key principle underlying this and our earlier submission is that
courts are critical to a strong and safe society that there must
be no barriers to any individual’s access to the courts and justice.
Therefore any and all barriers that limit peoples’ access to justice,
be it cost, language or any other factor, should be identified and
removed.
Our
submission does not provide detailed comment on the solutions outlined
in the discussion document. Rather, we primarily indicate which
of the solutions we favour. We do provide more detail in the sections
dealing with information provision, cost and processes.
VOICES
Mäori
We
endorse the various solutions outlined in the section “what we could
do”, including:
-
providing options for alternative justice (restorative justice,
community justice, marae justice)
-
allowing greater whanau support in various courts
-
recognising Maori community leaders
-
addressing shortage of Maori judicial officers
-
addressing representation of Maori throughout the court workforce
-
addressing all barriers such as cost, language, and the court
environment
- expanding
and supporting (including resourcing) the role of Maori support
services.
We
would suggest that the general courts could learn from the positive
experience of Maori Land Court, as outlined in the discussion document.
Ethnic
minorities
We
believe a balance between ‘meeting cultural needs’ and ‘equality
of law’ can be met. We suggest that the solutions outlined in the
section “what we could do” provide that balance. We support those
options, including:
-
improving information to migrants
-
introducing standards for translators
-
ensuring plain language is used (as with other submitters, we
believe that legal jargon and other legal ‘code words’ is a barrier
to many court users, even for English speakers)
-
allowing for greater involvement of families and support people
- providing
options for dispute resolution
- addressing
representation of ethnic communities throughout the court workforce
- learning
from the youth court initiatives, and extending these to the general
courts
-
training in cultural awareness for court staff, including the
judiciary.
Victims
of crime
We
acknowledge that efforts have already been introduced to provide
for victims, but agree with other submitters that more can be done.
We
endorse the various solutions outlined in the section “could we
do more”, including:
-
improved information for victims
-
training for people serving victims, and increased resources for
this
-
improved facilities for victims at court
-
allowing support people at trial
-
introducing more effective reparation mechanisms
-
providing options for restorative justice.
We
especially agree with the Public Issues Committee of the Auckland
District Law Society that, in sexual abuse trials, the judge should
initially question the complainant and defendant. Further, we endorse
the suggestion of other submitters that there be increased privacy
for victims, regardless of the nature of crime, when giving evidence.
Disabled
people
We
endorse the various solutions outlined in the section “what could
we do”, including:
-
introducing disability awareness training for court staff, lawyers
and the judiciary
-
improving information for people with disabilities
-
addressing issues around legal aid
-
improving support for people with disabilities
-
reviewing current facilities and services.
ACCESS TO COURT
Information
We
agree with the comment that a fundamental change of attitude is
needed to address issues around provision of high quality legal
information to the public. The Association has for some time been
concerned about the way that government and its agencies deal with
issues around information, and have been calling for a whole of
government information strategy to address a wide range of concerns.
We strongly endorse the comment that the starting point for change
would be to explore and define the responsibilities of government
and the possible roles of state and community agencies. We recommend
that the Law Commission make this a key recommendation for action.
Connecting
with courts
We
endorse the various solutions outlined in the section “what could
we do”, including:
• having
people inside courts to provide information, directions and support
• investigating
the role that information and communications technology, including
video links, may or may play in the New Zealand court system
• ensuring
continued equitable provision of court services.
Representation
We
consider that there are a number of useful solutions proposed in
the discussion document, and we don’t have any specific comments
to add.
Cost
The
discussion document provides a useful overview of the issues around
cost, and the barrier that this represents.
Lawyers’
fees
We
do not favour any particular solution to address lawyers’ fees.
We support the suggestion that there be compulsory cost disclosure
made on a standard form.
Court
fees
The
Association is strongly on the side of the debate that argues that
access to the courts at no direct cost to the user would ensure
equality before the law and truly universal access to justice. Court
costs are clearly a barrier to people accessing the courts, and
therefore that barrier should be removed. Indeed, in our experience
even the ‘low’ fees of the Disputes Tribunal – which should be the
most accessible court – are a deterrent for many people.
We
keenly await the second stage of the review of court fees the Department
for Courts is undertaking. However, because the department needs
to balance access to justice issues with budget constraints, we
are pessimistic about the extent that the department will address
the fundamental issues around cost as a barrier to justice. We therefore
strongly recommend that the Law Commission take a ‘first principles’
approach to this issue, and develop clear and strong proposals to
address the issue of cost.
In
regard to some of the specific solutions outlined in the discussion
document, we support:
-
broadening eligibility for legal aid (and have made a submission
to the Ministry of Justice review)
-
greater availability and use of mediation/alternative dispute
resolution
-
the establishment of a ‘public defenders’ office
-
improved information to clients about legal costs, including a
role for the commerce commission to examine lawyers fees
-
the state, as the largest purchaser of legal services, to play
a more direct role in limiting costs.
COURT PROCESSES
Criminal
Outside
the court
We
consider that out of court processes are useful, and that restorative
justice, therapeutic justice and youth drug court pilot schemes,
if they prove to be effective, should be extended into the broader
court system.
The
Criminal list
The
phased process detailed in the discussion document seems like a
useful solution. We especially like the suggestion that a charged
person be given more useful information prior to appearance and
that there be greater support provided at the court. The Wellington
Pilot outlined in the discussion document appears to be a common
sense and workable model for a phased process.
Criminal
jury trials
We
have no comment to make about criminal jury trials.
Civil
Alternative
disputes resolution
International
experience and the experience of some pilot schemes in New Zealand
highlight the advantages of Alternative Dispute Resolution (ADR)
over the adversarial process. The Association strongly supports
ADR, and would welcome greater use of ADR in our court system.
We
favour a state-funded community ADR service as outlined in the discussion
document. We suggest that mediators should have to be trained and
accredited.
We
suggest that the Law Commission recommend the government develop
an alternative dispute resolution policy, whereby state agencies
would pledge to settle cases by mediation or arbitration wherever
possible and to use the courts only as a last resort, as was done
in the United Kingdom.
Court
and case management processes
We
have no specific comments to make about case management processes.
High
volume cases
Citizens
Advice Bureaux have a lot of experience with the Disputes Tribunal.
We acknowledge that there are some issues with the tribunal, but
on balance consider it is a useful avenue to settle or resolve disputes.
We would however welcome any examination on how the tribunal could
be strengthened – either by changing it to a model similar to the
Tenancy Tribunal or some other changes.
We
agree that because the volume of debt cases is so significant in
the District Court more than just simplified rules and procedures
may be needed. We would welcome any change that implements an efficient
debt recover process that benefits the debtor as well as the creditor.
Centralising recovery or allowing for claims to be made on-line
may be useful ways to do this.
Open
justice
We
consider that the status quo should remain, especially in the Youth
and Family courts.
COURT STRUCTURE
There
are merits with each of the options outlined in the discussion document;
we do not favour any specific solution to restructure the courts,
tribunals or appeals structure.
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