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GENERAL
COMMENTS
The
Association congratulates the Law Commission for producing a well
written and accessible review document.
Our
submission addresses key issues outlined in the review document
as they relate to the whole justice and court system and its constituents.
Our comments generally follow the format and structure outlined
in the submission document. We have not, however, addressed
every question asked in the submission document, nor have we limited
ourselves to those questions.
Our
submission begins with an overview of the Citizens Advice Bureau
service as it relates to the justice and court system. We
examine the type of enquiries bureaux receive relating to this area,
and illustrate the growth in the number of enquiries that bureaux
deal with. Our submission then makes comment on many of the
key themes in the review document; we pay particular attention to
issues around information and understanding, cost as a barrier to
justice, the promotion of alternative disputes resolution in courts,
and a new level of court.
JUSTICE
AND COURTS SYSTEM AND THE CAB SERVICE
Citizens
Advice Bureaux receive enquiries from a broad constituency of court
users, (victims of crime, witnesses, litigants and jurors) relating
to the full court system (criminal, civil, family courts and various
tribunals).
Between
1994/95 and 2000/01 total justice and court related enquiries to
Citizens Advice Bureaux increased by 60 percent. Over the
last 3 years bureaux nationally received, on average, 73,000 justice
and court related enquiries. Table 1 provides further breakdown
of these client enquiries.
Table
1: The nature of justice and courts enquiries to Citizens
Advice Bureaux, 1994-2001
| General
nature of enquiry |
1994-95
|
1997-98
|
2000-01
|
Av.
last 3 years
|
Percent
change 94/95-00/01
|
| Free
legal advice |
9,981
|
11,686
|
13,183
|
13,620
|
22.5
|
| Legal
referrals (to community law centres, etc) |
12,752
|
17,320
|
20,336
|
19,808
|
26.2
|
| Lawyers
and law society, including legal aid |
9,846
|
8,630
|
8,266
|
8,285
|
-16.0
|
| Justices
of the Peace (JPs) |
5,690
|
9,830
|
24,118
|
20,812
|
323.9
|
| Justice
system, departments of corrections and courts |
4,427
|
3,954
|
4,505
|
4,158
|
1.8
|
| Disputes
requiring mediation (primarily disputes tribunal) |
3,217
|
3,508
|
3,139
|
3,318
|
-2.4
|
| Police |
2,207
|
2,634
|
3,872
|
3,582
|
75.4
|
| Support
groups for victims of crime |
740
|
555
|
625
|
572
|
-16.0
|
| Total
justice and courts enquiries |
48,860
|
58,117
|
78,044
|
73,402
|
59.7
|
| Total
all enquiries |
493,702
|
572,202
|
580,801
|
575,799
|
17.6
|
Rates
of change of specific areas of enquiry between 1994/95 and 2000/01
varied. Total client enquiries increased 18%, while justice
and court related enquiries increased, over that period, by 60%.
Below is further detail and commentary about some of those specific
areas of enquiry:
- Free
legal advice: Seventy of the 87 bureaux provide access
to free legal advice. They either run their own legal clinics
within the bureau, or have arrangements with local lawyers who
will see clients for initial free legal advice. Free legal
advice is used for a full range of issues, including employment,
finance, debt, neighbourhood disputes, housing, consumer rights,
breakdown of relationships, traffic and immigration. The
use of free legal advice increased 23% between 1994/95 and 2000/01;
on average free legal advice is used over 250 times a week nationally.
- Legal
referrals: Further, 84 bureaux have the option to refer
clients to other legal service providers, including Community
Law Centres or lawyers. This option of referrals on legal
matters is used for over 380 enquiries a week nationally; an increase
of 26% from 1994/95 to 2000/01.
- Justices
of the Peace: The increase in Justices of the Peace
enquiries reflects the greater numbers of JPs now available through
Citizens Advice Bureaux, and the requirement for many people,
for example recent migrants, to have documentation witnessed by
a JP.
- Justice
and courts: The statistics do not include enquiries involving
many specialist courts and tribunals, including the Family Court,
Youth Court, Employment Court, Environment Court, Social Security
Appeals Authority, Tenancy Tribunal, Motor Vehicle Disputes Tribunal,
etc. The Association would be happy to provide more information
about enquiries relating to these courts and tribunals if the
Commission wishes.
- Disputes
requiring mediation: Further, many enquiries involving
the Disputes Tribunal fall within our various consumer-related
categories, which is a major area of work for all bureaux (e.g.
in 2000/01 bureaux dealt with over 70,000 consumer-related enquiries,
many of which involve information relating to the Disputes Tribunal).
Again, the Association would be happy to provide more information
about these enquiries.
Bureaux
deal with a wide range of enquiries from the broad justice and court
constituency, from assisting people to complete forms through to
advice on custody and access disputes. These cases below illustrate
the diversity of the more than 1,700 justice and court related client
enquiries bureaux deal with on a weekly basis.
An
elderly client did not realise a letter she had received was a
jury summons. She wanted to know how to be excused from
jury service because of a disability (she was blind).
A
client had been arrested for drug possession. It was her
first offence and wanted advice on what to do.
A
young client had been arrested and was to appear in court.
He alleged that the arresting officer had assaulted him, and wanted
advice on whether he could raise that in court or make a complaint.
A
client brought court papers into the bureau seeking explanation
of some legal terms and court procedures.
The
Association suggests that our client statistics and anecdotal case
studies provide valuable evidence of the changing and increasing
needs relating to justice and courts in the community. This
evidence points to an increase in the need for free or low-cost
and accessible legal advice, and fundamental issues around peoples'
access to justice. The Association shares concerns of the
community and of justice sector commentators*
about the current court system, and we would welcome options that
address these concerns. *[For example the op-eds:
"Despair and misery in our courts", Catriona MacLennan, New Zealand
Herald 17 May 2002; "Are district courts doing too much?", Judge
Patrick Keane, The Dominion, 26 June 2002; "Settling disputes
out of court", Vivienne Ullrich QC, The Dominion, 27 June
2002, and; "Maori and the court system", Ngatata Love, The Dominion,
28 June 2002]
ACCESS
TO THE COURTS
There
is a large body of evidence revealing issues and problems around
access to justice for some groups. For example:
- For
small civil claims in the District Court, women, Maori, Pacific
people, beneficiaries and small businesses were identified as
having particular barriers, such as insufficient time and resources
to pursue matters. [CRESA,
July 1996, Access to Civil Disputes Resolution in the District
Court]
- The
Law Commission has also identified a number of barriers to women's
access to justice. [New Zealand Law Commission,
Women's Access to Justice project: He Putanga Mo Nga Wahine
ki te Tika]
- Court
fees, even "low" fees in the Disputes Tribunal, represent a major
barrier for many people accessing justice.
It
is the Association's view that it is critical to a strong and safe
society that there 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.
Information
and Understanding
Bureaux'
experience suggests that there is a lack of appropriate information
for justice and court constituents, and a general lack of understanding
about the court system, the processes within, the range of services
available in the court (e.g. interpreting, special waiting areas
for witnesses or victims), and support for people seeking justice
(e.g. legal aid, fee waivers, etc).
Court
users are provided with a number of sources of information, including
from the courts, organisations such as Citizens Advice Bureaux,
Victim Support, Community Law Centres, the Law Society, Legal Services
Agency, and a range of government departments and agencies (e.g.
Ministry for the Environment, Department of Child, Youth and Family
Services). In our experience, the provision of information
in itself is not meeting the needs of court users.
For
example, court users use the Citizens Advice Bureau service for
assistance with 'interpreting' court papers, terminology and procedures,
completing forms and to seek clarity or confirmation about advice
or information they have already been given. In addition,
as our statistics above clearly demonstrate, many users seek free
and accessible legal advice.
The
Association considers that there is a legitimate demand for court
staff to offer greater and improved information services to court
users. We accept that court staff cannot be expected to provide
legal advice, however, being able to offer clear and accurate advice
on procedural matters is essential. During our internal
consultation on this review document, a number of bureaux reported
that in some cases court staff seemed to have the time only to give
directions, and were unable or unwilling to provide information
when asked. There was also comment made that some court staff
overlooked or did not appreciate that most court users do not confront
courts regularly, that it is a new experience, and that they require
the most rudimentary information and guidance.
Courts
should be the main source of court-related information. While
this will require greater resourcing in courts and improved training
of court staff (and, where appropriate, volunteer support people),
it will have positive impacts on the overall operation of the court.
We
also recognise that there needs to be provision of alternate information
and advice services for those people who are unable or unwilling
to use the court service. This alternate role is filled by
a range of agencies that offer services where there is a need.
For example, migrant and ethnic community organisations develop
a number of services to meet their communities' needs. These
alternate services should be recognised and resourced or assisted.
The Citizens Advice Bureau service provides a useful example of
a well utilised alternate service.
In
courts where workload is a major issue, Citizens Advice Bureaux
report that court staff refer court users to them, because court
staff are unable or unwilling to meet the needs of court users.
These referrals often occur without the court first discussing it
with the local bureau. While the bureau would usually be able
to assist the court user, by providing information, free legal advice
or referral to accessible legal advice, we believe that these situations
could be improved through more effective working relationships between
the court and the local bureau. The Association recommends
that court registrars meet with the local bureau to identify and
discuss the range of services that the bureau is able to provide.
Finally,
along with many in the community, the Association considers that
greater support and information must be given to victims of crime.
We acknowledge that issues relating to victims' rights have been
and are being addressed through things such as the establishment
of victims' advisers in courts, the development of the Department's
Service Charter, and the introduction of the Victims Rights Bill.
However, some bureaux have reported cases where victims have been
treated poorly in the court, and where they have felt removed from
the justice process. The Association calls on the Department
to closely monitor, and improve where necessary, services and support
that it provides to victims.
Geographical
Access
The
Association was pleased that the proposal to restructure and close
a number of courts did not proceed. We have for some time
been concerned about the general withdrawal of government services
from provincial and rural areas, and we felt that the closure of
courts would have represented a major barrier to peoples' access
to justice.
It
would be sensible, if a new level in the court system was introduced
as mooted in the review document, to broaden the number of venues
where appropriate cases could be heard, i.e. cases heard by community
magistrates, small civil claims, etc.
Costs
[The
Association has previously made comment about costs as a barrier
to peoples' accessing justice. We refer the Commission in
particular to our submission to The Department for Courts on the
Equitable fees in civil
courts discussion document, December 2000]
The
Association considers that cost is the major barrier to peoples'
access to justice. Clearly cost is a barrier, especially in
a society where some people struggle to buy decent food, afford
adequate housing, pay electricity bills and access good healthcare.
Our
client enquiry statistics demonstrate the increased demand for free
legal advice: since 1994 client enquiries involving free legal advice
within bureaux increased 23%, and enquiries referred to other free
legal providers (i.e. community law centres) increased 26%.
During the same period enquiries involving legal aid and duty solicitors
declined by 16%.
There
are a number of factors related to costs as a barrier to justice.
Those include, but are not limited to, fees, the accessibility of
legal aid and free legal advice, and the cost of legal representation.
Fees
The
experience of bureaux suggests that any fee deters people on low
or modest incomes from accessing the court system or seeking justice.
For example, Disputes Tribunal fees are a significant disincentive
for many in society to use the service. This was clearly demonstrated
in 1998 when the fee was increased, which had a marked impact of
the number of cases taken*. The Association
considers that the barrier that fees present can have wider impacts
and implications for public policy than simply for the individual
seeking to take a case. *[Department for Courts,
27 November 1999, Briefing Paper for the Incoming Government]
Take
the Disputes Tribunal fees as an example. The "low value"
claims which CAB clients seek to make often relate to faulty goods
or poor services - items for which people, particularly on low income,
can ill afford to pay twice. However, if they feel unable
to risk any more money by taking a claim to the Tribunal, the deterrent
effect achieved by the threat of litigation, against, for example,
provision of poor quality goods or services, will be severely reduced,
cultivating a cowboy culture rather than stamping it out.
People with little money to spare will become even more of a target
for dubious sales practices and rip-offs.
The
Association recommended to the Department for Courts that Disputes
Tribunal fees be abolished because of the barrier they impose (noting
that a strong argument could be made for all court fees to be scrapped
in the interest of justice).
Benefit
advocates have also expressed concern about fees, particularly for
beneficiaries wanting to appeal Social Security Appeals Authority
decisions - such appeals potentially have major public policy implications,
as they might highlight discrepancies between welfare policy and
Ministry of Social Development practice.
While
new legislation, in the form of the Court Fees (Waiver) Bill, makes
provision for some jurisdiction's fees to be waived or refunded
if either payment of the fee would cause undue financial hardship,
or the proceeding concerns matters of genuine public interest and
would not proceed if the fee was required, the Association considers
that these provisions could be broadened to include the automatic
waiving of a fee, for example, for people receiving a benefit and
taking a Social Security Appeals Authority appeal to the High Court.
Legal
aid, community law centres, duty solicitors
For
people on low incomes access to justice is improved through the
provision of legal aid, community law centres and duty solicitors.
However, the Association would like to see further work done to
find ways these services could be made more widely available, especially
to those on modest incomes, who in our experience face major barriers
to accessing justice.
We
feel that legal aid is not adequate, and that its criteria places
legal aid out of the reach of people on modest incomes. We
feel the criteria could be broadened to make legal aid more accessible.
Further,
community law centres have restrictions on those they are able to
provide free legal advice and representation to. We are concerned
that some members of the Justice and Electoral Select Committee
suggested that community law centres charge a fee for their service*.
Any move towards this would further limit those who could access
the centres' services. We feel that community law centres
should receive increased resources to enable them to broaden their
geographic coverage and extend their current services to more people.
*[Justice and Electoral Select Committee, 2000/01
Financial review of the Legal Services Agency]
The
Association is attracted by the option mentioned in the review document
for the state to employ lawyers who offer legal services directly
to the public, and we would be keen to see further detail about
this.
Cost
of legal representation
A key
area of complaint relating to enquiries we receive about lawyers
relate to fees and costs. Bureaux deal with cases where the
clients have not been aware of the full costs of legal action, not
all of the costs have been documented, costs have escalated, a lawyer
hasn't advised the point where costs outweigh benefits of any action,
and so on. In addition, clients have not been aware of ability
to complain about lawyers' costs. One typical case is cited
below.
The
client was given a written quote of $5,000 from her lawyer.
The final bill, however, come to $14,000. The client said
that there was no indication during the case that the costs were
going beyond the original quote. The New Zealand Law Society
could not hear the complaint because the complaint was made after
6 months.
The
Association would be keen to see further detail about options to
reduce the cost of legal representation.
INSIDE
THE COURTS
Openness
The
Association is comfortable with the level of openness currently
observed by courts, particularly in cases where children need to
be protected, people are bringing a complaint in sexual cases, and
in cases heard by the Family and Youth courts.
Formality
The
Association generally accepts that the formality and seriousness
of courts is necessary. However, there are areas where courts
could be less formal or where they could be made more appropriate
and relevant to their constituents.
The
balance between formality and 'informality' (i.e. culturally accessible,
less impenetrable language, comprehensible) should be measured by
whether any barriers to justice are created. Any barriers,
be they cultural alienation or physical layout, should be identified
and removed. It is likely that a process to identify and remove
these barriers would take into account the nature of the court or
the case.
Judges
and Judicial Officers
The
Association considers that it is desirable that the judiciary reflect
the make-up of our society, and that effort should be put into ensuring
this occurs overtime, while ensuring that those efforts do not undermine
public confidence in the judiciary.
Not
only Winners and Losers, and Improving Processes
Resolution,
mediation and restorative justice are far more attractive models
than our current adversarial model. As the review document
discusses, the "win-win" model, where a solution is sought that
is acceptable to both parties, is in use in a number of court and
tribunal jurisdictions. The Association would be very keen
to see detailed options about how dispute resolution and restorative
justice models could be implemented more broadly in other court
jurisdictions.
Citizens
Advice Bureaux have a great deal of experience with the Disputes
Tribunal model. While there are problems with aspects of this
(including cost, timing, resourcing and enforcement), it is a very
useful process. Indeed, evidence has shown that the process
is as important as the outcome. For example, a review of the
Disputes Tribunal found that the majority of its users were happy
with their experience of it and valued its process.*
There was a sense of justice being done when they either 'won' their
case or it was mediated. Even when users considered the decision
was wrong, the process was regarded as fair. Most said they
could not have sorted out their dispute in any other way and indicated
that they would use the tribunals again if needed. These findings
were further supported in a 1997 Department for Courts' research
project on the Disputes Tribunal.**
*[Ministry of Consumer Affairs, 1994, Review of the operations of
the Disputes Tribunals from a consumer perspective; **CRESA, 1997,
Disputes Tribunal research project, prepared for the Department
for Courts]
Workloads
in the general courts
Provided
that the pilot schemes are proven to be effective and valuable,
the Association considers that introducing "community magistrates"
into the court system would be a useful way to improve the justice
system.
The
cases that magistrates hear do not need to be decided exclusively
by the dollar-value of the case involved; importance, complexity
and substance of the case could also be factors.
SUMMARY
AND RECOMMENDATIONS
The
Association welcomes the review into the New Zealand court system.
The Association considers that access to justice is the fundamental
determinant underpinning whether and how the courts could be restructured.
For the next stage of this review, the Commission should identify
any barriers to peoples' access to justice, and then develop options
to remove those barriers.
The
Association made comment on key aspects of the review document.
A summary of our comments is provided below. We believe that
these are priority areas for any restructuring of the New Zealand
court system.
Information
and Understanding
Bureaux'
experience suggests that there is a lack of appropriate information
and support for court constituents. The Association considers
that courts and court staff should be the main source of court-related
information, and that resources must be directed into improving
information and service delivery by courts and court staff.
In
addition, alternate sources of information and support services
should be recognised. For example, in the case of the Citizens
Advice Bureau service, prior to court staff referring court users
to local bureaux we recommend that court registrars meet with those
bureaux to identify and discuss the range of services that the bureau
is able to provide.
Specific
to information and services to victims of crime, the Association
considers that greater support and information must be given to
these court constituents. The Association recommends that
the Department for Courts closely monitor, and where necessary improve,
services and support that it provides to victims.
Costs
The
Association considers that cost is a clear barrier to peoples' access
to justice.
Bureaux
experience suggests that any court fee deters people on low or modest
incomes from accessing the court system or seeking justice.
The Association has previously recommended to the Department for
Courts that Disputes Tribunal fees be abolished because of the barrier
they impose. We also note the concern expressed by benefit
advocates in relation to filing fees for Social Security Appeals
Authority appeals being taken to the High Court. The Association
believes that more could be done in the area of reducing and waiving
court and tribunal fees.
We
would like to see further work done on making legal aid, community
law centres and duty solicitors more widely available, especially
to those on low and modest incomes. The Commission could investigate:
-
broadening criteria of legal aid, and
-
increasing resources to community law centres to enable them to
broaden their geographical coverage and extend their current services
to more people.
Inside
the Courts
The
Association is comfortable with the level of openness currently
observed by courts.
The
Association considers that it is desirable that the judiciary reflect
the make-up of our society.
The
Association considers that dispute resolution and restorative justice
are more attractive models than our current adversarial model.
We would like to see detailed options about how these models could
be implemented more broadly in court jurisdictions.
Dependent
upon a positive evaluation of the pilot scheme, the Association
considers that it would be useful to introduce "community magistrates"
into the court system.
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