First, the good news.
In the area of access to justice, it turns out that New Zealand is doing very well.
In the World Justice Project’s Rule of Law Index, this country ranks sixth out of 142 countries monitored, due to New Zealand’s independent judiciary and perception that our system is free from corruption. Unlike the majority of countries, the WJP believed that the rule of law had not weakened in New Zealand.
‘‘New Zealand cannot afford to be complacent,’’ her Honour writes.
‘‘As world events show, the rule of law is a fragile thing. How judges and the courts work, and are supported in their work, is of public importance and interest.’’
Flawed as some may feel the justice system to be, and fail as it does occasionally - as all institutions do from time to time - maintaining trust in the system is vital for New Zealand to function efficiently and fairly.
We must not only do justice, and see justice done, but believe that what the courts administer is a just justice system.
As her Honour notes throughout her report, the courts system is creaking under the sheer weight of demand and expectation. It is unusual for a Chief Justice to be as pro-active as Dame Helen has been this year in highlighting the issues the sector faces, suggesting these are genuine concerns requiring the urgent attention of the government.
Some issues she raises, such as pressure on the legal aid system, are long standing. The public purse has long resisted spending on legal aid, being aware of a widespread jaundice against many recipients of it.
Such scorn is to ignore the civil litigation aspect of legal aid, and also to undervalue two essential aspects of the criminal justice system: that an accused is innocent until found otherwise, and that they are entitled to make out a defence.
The report sets out that systemic long-term underfunding of the system means that fewer lawyers - and especially fewer senior lawyers - will accept such work. Her Honour terms it a ‘‘grave shortage’’ and notes its particular effect on the criminal and family courts.
Add to that the eligibility thresholds for legal aid are, her Honour said, ‘‘set unacceptably low’’, meaning many who cannot afford a lawyer are ineligible.
The legal aid system is under review this year, but given the scrutiny the government is placing on all public expenditure there can be no guarantee of improvement in this area.
Assuming someone gains legal aid representation, the justice system then needs to find a judge to hear their case. There are statutory caps on senior judges numbers, and acting judges are increasingly being called on as case loads increase.
The report notes that the situation is more dire in lower courts: at District Court level acting judges make up 16% of the bench.
None of this helps in the timely administration of justice. The courts have a target that 90% of criminal cases be disposed of within timeliness thresholds by 2027. Although her Honour has not said so directly, one gets the sense that she suspects that will be a difficult target to hit.
Civil cases face similar delays: they are often specialised and complex. A separate commercial list is being trialled in Auckland and it will be interesting to see what effect, if any, this has.
Another concern of Dame Helen’s was court fees which, she pointedly noted, had been increased by regulation and not by the judiciary. She is on record as having previously argued that court fees were a barrier for civil litigants wanting to assert their rights, and that the courts should be accessible to all, not just to all who can afford them.
We agree this an important principle. New Zealand’s legal system and the perception of justice for all would be severely weakened if individuals or small scale community and activist groups were to be priced out of their day in court.
Overall, there is much to take comfort in from Dame Helen’s report. Those who are employed in our courts work long and hard to try to make the system operate as fairly as possible.
That said, the Chief Justice does not air the matters that she has idly. For public confidence in the judicial system to endure, her concerns must not only be noted, but also addressed.
