Justice Helen Winkelmann, the incoming Chief Justice, says everyone - from the powerful to the weak - deserves access to justice, and this can be compromised by high court fees, delays, and a lack of representation.
“Access to justice is the critical underpinning of the rule of law in our society: it is the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law,” she said in a statement this afternoon.
“That condition cannot exist without access to courts, and without the ability to obtain a just resolution of claims before those courts. Cost, delay and a lack of representation all can act as barriers to justice.”
Prime Minister Jacinda Ardern announced today that Winkelmann would take over from retiring Supreme Court Chief Justice Dame Sian Elias on March 13 next year.
“Her Honour is recognised by her peers and the profession for her superior intellect, her judicial instinct and experience, coupled with strong leadership, qualities that I am sure will make an outstanding Chief Justice,” Ardern said.
Winkelmann (56) has served as a judge for 14 years after being made a partner in a major commercial law firm (now DLA Piper) when she was just 25 years old.
She was appointed to the High Court in 2004, became Chief High Court Judge in 2009, and was appointed to the Court of Appeal in 2015.
Today’s announcement was a great honour with significant responsibility in an increasingly complex and diverse society, she said.
“An independent, and skilled judiciary is vital to the health of our democracy. So too a judiciary that has a good understanding of, and remains connected to, the communities which make up New Zealand.”
Her statement included the same lines about “the good, the bad, the weak, the powerful” from a speech she gave in 2014 as Chief High Court Judge, titled Access to Justice - Who Needs Lawyers?
In that provocative speech, Winkelmann talked about how high court fees and barriers to legal aid were contributing to a “growing justice gap”, which was turning the justice system into a user-pays system increasingly out of reach for the poor.
“Unless we have this access [to justice for all], we will live in a society where the strong will by any means, including violence, always win out against the weak,” she said in her speech.
She noted court fees that, in one case in the High Court, amounted to $6700 for a one-day hearing.
“Because access to justice should be available to all, and not just to those who can afford the price set upon access to the courts, only those who can afford that contribution should be required to pay.
“The fee regime should not operate to deny access to the courts.”
She also challenged the “very low” maximum income for legal aid eligibility, which was $22,366 a year at the time, and has since only increased to $23,820.
This may have led to an increase in people representing themselves, she said in her speech.
“People cannot afford legal representation because it is too expensive. As legal aid schemes become more and more constrained, both in terms of eligibility and in terms of the remuneration available to lawyers, this problem worsens.”
She offered two discussion points: the level of court fees and funding for legal aid, and for lawyers to consider different ways of doing business, including more pro bono work.
“If courts dispense justice for only the few, what does this mean for our concept that we are a nation that exists under the rule of law?”
