Simon Power

25 August, 2010

Challenging Tradition

Thank you for inviting me to speak to you today. I would particularly like to thank Professor Mark Henaghan and Sir John Hansen for helping to organise this lecture.

In 2008, when I became Minister of Justice, I was told over and over again that I needed to do two things to improve our justice system.

The first was to build more court houses. The second was to appoint more judges. I was not convinced.

Frankly, these are sticking plaster solutions for serious systemic problems. They don't even begin to address fundamental questions about whether, how, and for whom our criminal justice system is working.

New Zealand's justice system does not belong to judges, or to lawyers, and it certainly doesn't belong to politicians. It belongs to the people. Yet it's clear many people don't feel particularly well served by our current system.

You can understand this sentiment when it has taken up to 17 months for a High Court case to proceed to trial, and once they get there, victims and vulnerable witnesses often feel voiceless, confused and even re-brutalised by the court process.[i]

I have made it clear previously and do so again today; that if the justice system will not reform from within, then the people, through their elected representatives, will drive that reform from the outside.

In the past, some of those with an institutional investment in the justice system have used tradition to shield calls for change.

Yes, precedent and tradition are important touchstones. But it has become increasingly clear to me that they are not enough to keep pace with New Zealanders' changing views and expectations of their justice system.

It is not my intention to criticise those who administer and work within the system, the vast majority of whom are hard-working professionals who do an excellent job, often in difficult circumstances.

I acknowledge that the Executive and the Legislature have a role to play in creating the framework for a workable, participant-friendly justice system. However, it's clear that over a period of time governments of whatever hue have not delivered on their half of the bargain. Under this Government, that is changing.

We are modernising and adapting New Zealand's justice system for the benefit of those who use it and are entitled to depend on it.

This Government is committed to preserving access to justice while helping those who administer the system to deliver it efficiently.

Our programme of reform has three broad objectives.

Our first objective was to improve public safety, which we have done by clamping down on gangs and organised crime, providing on-the-spot police safety orders and expanding the use of DNA testing.

The second is to improve the justice system for those who find themselves in it through no fault of their own.

Over the past 18 months, the Government has made significant progress towards putting victims at the heart of the criminal justice system. We have introduced a number of services and grants for victims which are being paid for by the $50 offender levy.[ii] Before the end of the year we will build on that by announcing improvements to the Victims Rights Act.

Our third reform objective is to speed up and simplify the delivery of justice.

Steps we have already taken towards achieving this include passing legislation that allows greater use of audio visual links in courtrooms and introducing legislation to radically reform the provision and oversight of legal aid. We have also implemented a new committal process which has already reduced the average time it's taking to get a High Court case committed to trial from 186 days to 79 days.[iii]

I'm pleased with progress to date, but we need to do more. I'm a firm believer in the old saying ‘justice delayed is justice denied.'

Something I'm interested in is whether judgments should be delivered within a statutory timeframe, unless a good reason for not doing so is provided to the relevant Head of Bench.[iv]

That would complement work we are doing on the Criminal Procedure Simplification Project which is well advanced. Some of the most significant proposals include:

§ Raising the jury trial threshold.

§ Requiring counsel to attempt to resolve cases prior to a hearing so unnecessary court appearances can be avoided and trial times shortened.

§ Requiring the defence to identify issues in dispute so the court can focus on those issues at trial; and

§ Ensuring that all pre-trial matters are adequately dealt with.

The judiciary and profession have made significant contributions to this work and I am grateful for their expertise and cooperation. Work is progressing well and I expect to be able to introduce a bill to Parliament before the end of the year.

So it's fair to say that we have a bit on our plate. But we can't afford to be complacent. There is more work to be done.

Today I want to outline two potential reforms I am considering - the way we treat vulnerable court participants and the vexed issue of legal aid.

I want to make it clear that the ideas I will speak about today are not yet Government policy.

I am raising them in this forum because I believe it's important that New Zealand honestly discusses the challenges our justice system is facing, particularly in relation to legal aid.

But first, to the way vulnerable court participants are treated by the adversarial system, which builds on our work improving the experience of court users there through no fault of their own.

Over the past 18 months, I have been asking myself why is it that the justice system is reluctant to make changes that would put anybody, other than the offender, in a better position to navigate their way through this complex web of precedents, standards of evidence, statutes, and conventions.

The irony is that over time we have been remarkably innovative and free from tradition when relaxing the laws of evidence and formal procedure to benefit offenders. The Youth Court, Family Court, and courts sitting on marae are all good examples of this.

But why not take such innovation a step further?

We have a special jurisdiction and system for offenders under 17 years of age through our Youth Court, so why not have a special approach for victims and witnesses under 17?

I simply don't buy the argument that empowering victims and witnesses necessarily has to disrupt the court's dispassionate assessment of the facts.

Our adversarial system needs to recognise that victims have a stake in the criminal justice system too.

In fact, emerging evidence indicates that the adversarial process, and in particular cross-examination, can actually undermine the quality of evidence given by vulnerable victims and witnesses.[v]

I'm very concerned about children having their evidence tested in an aggressive manner many months, or in some cases years, after an alleged offence occurred.

My thinking in this area has been shaped by AUT's Report on Child Witnesses in the Criminal Courts, and by my recent trip to Germany and Austria where I examined how their justice systems deal with vulnerable court participants.

The evidence I've seen over the past two months suggests we can improve the quality of evidence given by children if we make courts more responsive to their age, education, and circumstances.

One way we could do that is to introduce some elements of an inquisitorial system.

A quasi-inquisitorial approach could help limit a child's exposure to the courts. We could ensure that all interviewing, including cross-examination, occurs away from the courtroom through forensic experts or trained judges. All evidence should be taken as close to the time of the alleged offending as possible.

We could also introduce a presumption that at trial a child's pre-recorded interview would stand, and only in exceptional circumstances would leave be granted to allow new evidence to be introduced, and for the child to be recalled.

The other aspect of this problem that needs to be addressed is how delays in the courts are affecting children.

In 2008, child complainants under the age of 17 waited on average 15 months for their cases to be processed through the courts.[vi] That's unacceptable.

The Criminal Justice Simplification Project will help reduce some of these delays, but I'm also considering creating a legislative requirement for cases involving children to be heard within a specified timeframe.

Improving the interaction of children with the criminal justice system in this way is my first priority; but I believe such a system could eventually be adapted for use in sexual violence cases where, as in cases involving children, a power imbalance exists.

I'll now turn to the second potential reform - legal aid.

To date, our reform in this area has been focused on improving the quality of legal aid. But, we can't continue to ignore the fiscal pressures it's facing.

The reforms set in motion since Dame Margaret Bazley's report on legal aid will help manage these cost pressures, but more is needed.

Expenditure on legal aid has risen by $45.3 million in the past three years.[vii] Last year, the legal aid system cost $128.6 million.[viii] In three years' time that figure is projected to pass the $200 million mark.

Two thirds of the increase to date stems from the previous government's decision in 2007 to increase lawyer remuneration and extend eligibility for legal aid.[ix] To be blunt, these changes were completely unaffordable then and they are even more unaffordable now. By 2011/12, legal aid is expected to be $69 million over budget.[x]

To put it in perspective, plugging that hole would require wiping out an entire year's budget for family and civil legal aid, plus some.

We cannot ignore these costs. We need to look at how much state-funded legal aid we can afford, and we need to consider how we can target legal aid spending more effectively.

Other countries use spending caps, restrictions on eligibility, and fixed fees to control legal aid expenditure.[xi] I'm not ruling out any of these options. We simply cannot continue to gloss over cost pressures on our system.

I'm also not ruling out bulk funding law firms, as suggested by Dame Margaret Bazley, or expanding the Public Defence Service faster than originally outlined.

In November, I will be reporting to Cabinet on a package of options aimed at bringing the legal aid growth curve back under control while ensuring we maintain access to justice.

One area I'm particularly concerned about is legal aid costs in the family jurisdiction.

I'm concerned because over the past four years the Family Court's volume of new cases has increased by 5%, while costs overall have increased by 33%.[xii] There is little evidence to suggest that this spending has led to improved outcomes for children or parents.

And I'm concerned because the 2007 eligibility changes put family legal aid on a completely unsustainable spending track.

Over the past four years spending has increased by 51% to $38.9 million.[xiii] Based on current estimates, family legal aid expenditure will increase by a further 59% over the next four years. By 2014 it will cost us $61.2 million.

These forecasts force us to ask fundamental - and difficult - questions about family legal aid. Questions such as:

• Where do the roles of the state and the private citizen begin and end?

• To what extent should the state intervene to help solve the many interconnected problems facing dysfunctional families?

• What additional support services should be funded, and which of these should be overseen and funded by the Justice and Courts sector?

• Is our system geared to ensure disputes are dealt with as painlessly as possible?

The most significant driver of legal aid costs in the family jurisdiction is care-of-children legal aid grants.[xiv]

These are becoming more legally complex, taking longer to resolve, and are one of the most likely types of cases to require a substantive hearing.

While I accept that care-of-children applications are rarely straightforward, and arise from difficult and sometimes unforeseen circumstances, I question whether it is generally in a child's or a family's best interests for disputes to routinely progress to a court hearing.

I'm concerned that our current system may actually be working against the speedy resolution of family disputes. When litigation is readily available as a fall-back option, there is less motivation to resolve matters at the earliest opportunity, especially where there is access to legal aid.

We have to ask whether the system is really incentivised to put children first and the argument second, or the other way around.

Family matters are essentially private. The state's role should be concentrated on helping families resolve their disputes in a fair and enduring manner that will limit further stress.

Unnecessarily drawing out the court process is in no one's best interests. It places added stress on children and parents who are already dealing with difficult personal circumstances. It also places an unnecessary burden on the taxpayer.

Some recent changes like the ‘Early Intervention Programme' have improved the processing of care-of-children applications and have reduced delays.

But we need to create greater incentives to divert cases away from the court and ensure that state funding for family legal aid is not tacitly promoting litigation.

I would like to make it very clear that where children have been harmed or are at risk of being harmed, the state will provide legal means to secure protection. There is no question of that. Likewise, where one party is more vulnerable, the state has a role in redressing that power imbalance.

This Government has put a lot of work into the protection of children and vulnerable parties and I will not undo it. But legal aid was never intended to prolong family disputes.

That's why I have asked officials to look at whether we can use the legal aid system to incentivise earlier and more enduring resolutions in care-of-children and property cases. This would, in turn, relieve other cost pressures on the system, such as court-ordered professional services.

As well as considering sensible changes to legal aid in certain care-of-children and property disputes, we will look at ways to make smarter use of counselling and mediation.

Other things I'm considering as part of my report to Cabinet are:

• Using duty solicitors in the Family Court to ensure that those arriving in court get timely legal advice.

• An expanded role for Community Law Centres as a first port of call for advice on family issues.

• Greater use of cost orders to deter vexatious litigants.

• A new merits test for family legal aid to ensure that legal aid gets to those who need it most and where a judicial process is appropriate.

• Bringing lawyer-for-the-child under the umbrella of legal aid to ensure it is better targeted.

I said in my introduction that I do not want this speech to be read as criticism of the judges, lawyers, and court staff who administer our justice system. I'm grateful for their work and broadly believe our system is fair and equitable.

But as Minister of Justice it's my job to ask the hard questions about whether our current system is serving the public.

We have to strive for better. And we will.

ENDS

[i] The median age for jury trials in the High Court is 17 months. Based on figures provided by the Ministry of Justice.

[ii] More information is available at: http://www.beehive.govt.nz/speech/launch+victims+crime+initiatives

[iii] The average time to committal for trial in the High Court Jury jurisdiction in the 2008/09 financial year was 186 days (under the depositions process). In the current financial year to date, this has decreased to 79 days. The average time to committal for trial in the District Court jury jurisdiction in the 2008/09 financial year was 100 days. In the current financial year to date, this has decreased to 60 days. Based on figures provided by the Ministry of Justice.

[iv] Outstanding reserved decisions on substantive applications as at 30 June 2010 for District Court
Substantive Applications
Weeks / 0-5 / 6-10 / 10-15 / 16-20 / 21-25 / 26+
DC Civil / 13 / 4 / 4 / 1 / 0 / 2
DC Family / 50 / 20 / 12 / 15 / 5 / 10
The above table outlines the age of current outstanding reserved judgments as at 30 June 2010.

Please note

• the figures are only for decisions which have been reserved on individual applications (not cases), and does not take into account any decisions which were given on the day of the hearing

• the figures relating to High Court Civil, High Court Civil appeals and High Court Criminal appeals have not been included in this table as further work is required on the figures.

[v] Child Witnesses in the Criminal Courts: A Review of Practice and Implications for Policy Institute of Public Policy, Auckland University of Technology 2010, 173.

[vi] Child Witnesses in the Criminal Courts: A Review of Practice and Implications for Policy Institute of Public Policy, Auckland University of Technology 2010, 5.

[vii] Expenditure on legal aid has risen by $45.3 million in the past three years. This refers to the change in net expenditure between 2005/06 and 2008/09. (Net expenditure is the total expenditure on legal aid minus the repayments received in that year). Based on figures provided by the Legal Services Agency. Figures are reported on a cash rather than accrual basis.

[viii] Last year, the legal aid system cost $128.6 million. In three year's time that figure is projected to pass the $200 million mark. The figures referred to are the gross expenditure on legal aid, excluding the cost of the duty solicitor scheme and the Police Detention Scheme, comparing 2008/09 with 2013/14. The 2008/09 figure is from the LSA, and the 2013/14 figure is from the most recent Justice Sector forecast, provided by the Ministry of Justice. All figures are reported on a cash rather than accrual basis.

[ix] Two thirds of this increase to date stems from the previous Government's decision in 2007 to increase lawyer remuneration and extend eligibility for legal aid. $21.672 million was appropriated for the "Legal Aid Eligibility Review" (implemented in March 2007), and a further $9.9 million was appropriated for "Legal Aid Provider Remuneration" from 1 July 2008. In total, these two decisions cost $31.6 million, or slightly over two-thirds of the increase between 2005/06 and 2008/09 discussed above. Based on figures provided by the Ministry of Justice.

[x] By 2011/12, legal aid is expected to be $69 million over budget. The legal aid baseline is as advised by the Ministry of Justice Chief Financial Officer and reflected in the Crown Accounts. The forecast expenditure is from the most recently completed Justice Sector forecast, provided by Sector Strategy in the Ministry of Justice.
$000, GST excl / 2009/10 / 2010/11 / 2011/12 / 2012/13 / 2013/14
Legal Aid Baseline / 150,866 / 132,393 / 105,937 / 105,823 / 105,823
Forecast expenditure (incl recoveries) / 144,077 / 161,070 / 174,926 / 188,475 / 201,868
The difference between forecast expenditure and the appropriated baseline is $69 million in 2011/12.

[xi] Other countries use spending caps, restrictions on eligibility, and fixed fees to control legal aid expenditure. Australia and England & Wales both operate within a fixed annual budget. Legal aid commissions in Australia, particularly, must manage expenditure according to the money available in any given year (for instance, an availability of funding test is a part of the eligibility criteria in New South Wales). Canada and Australia have both made eligibility restrictions within the family/civil jurisdiction in order to manage expenditure, focusing their resources on criminal legal aid. Fixed fees are widely used internationally. Australia, England & Wales, the Netherlands, and Scotland all use fixed fees as one part of managing expenditure.

[xii] Over the past four years the Family Court's volume of new cases has increased by 5%, while costs overall have increased by 33%.[xii] The information relating to the increase in the volume of new cases is based on figures provided by the Ministry of Justice. The Vote Courts appropriation for Family Court costs has increased by 33% from 2006/2007 to 2009/2010.

[xiii] Over the past four years spending has increased by 31% to $38.9 million. Based on figures from the Legal Services Agency and the Ministry of Justice.

[xiv] The most significant driver of legal aid costs in the family jurisdiction is care-of-children legal aid grants. Based on figures from the Legal Services Agency.

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