Access to justice

Contents

"Access to justice has two strands – ensuring that people have access to the insitutions and procedures that will uphold and enforce their rights and ensuring that people have access to the content of the law – that they understand their rights and how to access and enforce them."

CHIEF JUSTICE HELEN WINKELMANN

Improving access to justice by improving the quality of all interactions the public have with the courts and with judicial processes is a priority for the judiciary. Information about legal rights must be accessible and easy to understand. The processes to defend and assert those rights in our courts and tribunals must be easy to use, and must enable timely and affordable justice.

This year, the final report from the Royal Commission of Inquiry into Abuse in State and Faith-based Care identified many barriers for survivors attempting to access justice through our court system. This chapter explores the access to justice imperatives and initiatives that were a focus of the judiciary in 2024, and will continue to be in the years to come.

The Royal Commission of Inquiry into Abuse in Care – An imperative to improve equitable access to justice

In July, the Royal Commission of Inquiry into Abuse in State and Faith-based Care published its final report on the abuse and neglect of children, young people and adults in the care of the State and faith-based institutions in Aotearoa New Zealand between 1950 and 1999. Whanaketia – Through pain and trauma, from darkness to light is the culmination of five years of investigations, research and public hearings, in what was New Zealand’s biggest and most complex public inquiry. It makes 138 recommendations for change.[46]

The report describes how institutions and systems, including the justice system, failed to protect the most vulnerable members of our society – children and young people. This failure was compounded by the failures over many years to acknowledge those wrongs and to assist survivors as they tried to access justice and sought compensation for the harm that was done. The barriers survivors faced to accessing justice included delay, inadequate support to navigate gruelling court processes, and the retraumatising effects of being in court in our adversarial system.

The report makes recommendations for the judiciary, in particular with regard to judicial education. See Part 1 for the judicial education programme related to the Commission’s findings.

The report endorsed Te Ao Mārama (at Recommendation 25), which aims to address several aspects present in the reports’ findings, including:

acknowledging the disproportionate representation of Māori in the justice system
providing accommodations where possible so that people can participate in proceedings that affect them and
adopting ‘solution-focused’ judging – asking “what has happened to this person to bring them to this point in their life?” and then addressing those causes.

The report adds to the increasing evidence of the association between abuse in State care, and the likelihood of ending up in one of this country’s prisons. It tells how this has disproportionately affected Māori – 42 per cent of Māori who were in State care as children ended up in prison as an adult. Judicial education relating to te reo Māori, te ao Māori and tikanga Māori is described in Part 1.

Many of the access to justice initiatives below also speak to the recommendations in the report. They are aimed at improving people’s ability to access the courts and to fully take part in their proceedings, and at providing timely and efficient justice.

Advancing accessibility in the courts for deaf and disabled people

When thinking about how to improve the accessibility of the courts and their processes, the courts must focus upon the needs of disabled people and communities. Disabled people are overrepresented in our courts. They are overrepresented as victims – disabled people suffer much higher levels of victimisation than the general population. They are overrepresented in our civil courts, and in our defendant population. Almost all people in prison (91 per cent) have a lifetime diagnosable mental illness or substance abuse disorder, often existing with other conditions such as Fetal Alcohol Spectrum Disorder and traumatic brain injuries.[47]

The work of the Royal Commission also highlighted how many of the victims of abuse were made vulnerable through disability, and faced extra barriers in seeking justice.

Fairness and justice require that our courts better support disabled and Deaf communities. Everyone appearing in court has the right to participate in proceedings that affect them, and it is the duty of judges to ensure that every person who comes before the court, in whatever capacity, is able to do that. Many people who appear in courtrooms have disabilities that may impact on their ability to participate, if their disabilities are not known, understood and accommodated.

The judiciary is working to build knowledge within the judiciary and the legal profession about the barriers that disabled people and the Deaf community experience when they try to access courts. Workstreams underway include the following:

the District Court’s Te Ao Mārama model has a strong focus on accommodating disability, and in particular neuro-disability, in the courtroom.
The judicial committee Tomo Mai [48] has established a disability working group to develop principles to guide the judiciary’s engagement on disability matters. These principles will draw on the recommendations of the 2022 United Nations report on New Zealand’s implementation of the UN Convention on the Rights of Persons with Disabilities, including the recommendation that government engage with external organisations of disabled people in finding solutions and develop meaningful partnerships to co-design, co-produce and co-evaluate processes.[49]
Kia Mana te Tangata | Judging in Context: A Handbook: This is an important resource for judges. It provides information on how to better accommodate disability and thereby support full participation for disabled people and members of the Deaf community in court proceedings. The handbook will be made available on Courts of New Zealand website, once completed.

Civil justice – Access to justice initiatives underway in 2024

The access to justice advisory group
The Access to Justice Advisory Group was established in 2020 to advise the Courts Strategic Partnership Group (CSPG) in its work to improve access to justice, and to drive forward an access to justice work programme focused on civil justice. Civil proceedings are those that focus on enforcing people’s rights outside of the criminal justice system.

The group has been responsible for delivering the Access to Justice Legal Needs Survey and the Wayfinding for Civil Justice stakeholder strategy.

Understanding the extent of the problem – Access to Justice Legal Needs Survey
The results of the Access to Justice Legal Needs Survey were published in October. These identified that one third of the people surveyed had experienced a civil justice issue in the preceding year. The survey also found that certain groups of people are more likely to experience civil justice issues than others, including disabled people, LGBT+ people, single parents, and Māori, and that 40 per cent of small businesses experience at least one issue or dispute in any given year, with the most common being consumer debt or late payments, and customer complaints.

The Access to Justice Advisory Group commissioned the nationwide survey to gather data about people’s experiences with civil justice issues and how they seek (or do not seek) resolution of those issues. The survey was developed in conjunction with the Ministry of Business, Innovation and Employment and the Ministry of Justice.[50]

The survey results and subsequent analysis will inform future work to improve access to civil justice.

Wayfinding for Civil Justice
The Wayfinding for Civil Justice strategy was launched in late 2023 and encourages a unified and coordinated approach to the design and planning of initiatives to improve access to civil justice. It provides a set of guiding lights or principles and waypoints or goals. The outcomes it seeks are:

Legal assistance is accessible, appropriate and integrated.
Providers of legal assistance understand and serve the needs of their communities.
Dispute resolution – from initiation to enforcement – is accessible and equitable.
There is knowledge about the system and progress towards these goals can be monitored, evaluated and improved.

Wayfinding for Civil Justice is available in both te reo Māori and English.[51]

As part of implementation, the working group recommended establishing a National Civil Justice Observatory to ensure the Wayfinding for Civil Justice strategy is useful in practice. The Observatory would be responsible for coordinating reporting of initiatives, sharing information between stakeholders, and maintaining momentum for the strategy.

In 2024, funding was secured from the Borrin Foundation to launch a pilot of the Observatory for a period of one year. The Wayfinding Observatory pilot is expected to be launched in early 2025.

The working group was greatly assisted by feedback from civil justice stakeholders.

Court fees as a barrier to seeking justice
Fees were increased in the civil jurisdiction of the District and High Court, Court of Appeal, Supreme Court, and a range of ministry- administered tribunals from 1 July, as were fees and costs related to the collection and enforcement of fines. The court fees are set by regulations, not by the judiciary.

The impact that these increased fees will have on access to justice is a significant concern for Heads of Bench.

The Chief Justice has previously highlighted the barrier that court fees create for people attempting to assert or defend their rights in our civil courts. She has said that it is inappropriate to apply a cost recovery model to the courts – that is, to set court fees at a level to recoup the cost to the Ministry of Justice of running the courts – and that court fees contribute to civil justice being unaffordable for some people.[52]

Rules Committee’s recommendations to improve access to civil justice – An update

Access to civil justice

Rules Committee’s recommendations to improve access to civil justice – An update
The Rules Committee, in its report entitled Improving Access to Civil Justice, issued in November 2022,[53] proposed substantial changes to the civil justice framework aimed at simplifying court procedures so that disputes can be resolved more quickly and efficiently. An update is provided here on some of the Committee’s recommendations.

Expanding the role of the Disputes Tribunal
The Disputes Tribunal is a relatively quick and inexpensive way for people to settle civil disputes without incurring expensive legal fees. The Rules Committee recommended extending its jurisdiction to address claims up to $70,000 as of right or $100,000 with consent so that more people could benefit from the Tribunal. In December the government introduced legislation to raise the jurisdiction for the Disputes Tribunal from $30,000 to $60,000.

Improving the institutional capabilities of the District Court
The Committee recommended the establishment of a civil division of the District Court, the appointment of a Principal Civil Division Judge, increasing the civil expertise of the registry, and the use of part time deputy judges/recorders appointed from the profession to improve the District Court’s civil jurisdiction. These steps require legislative action if the recommendations are to be furthered.

Reforming the regime for determining civil disputes in the High Court to make them more effective and proportionate
This year the Committee’s work was focused on finalising the new High Court Rules to reform the procedures in the High Court. The changes will require a culture change to the way litigation is managed. They emphasise the need for proportionality between the matters at issue in a proceeding, and the way the case is managed through the courts. They include a greater emphasis on identifying key issues earlier.

The new Rules take effect on 1 January 2026. A joint seminar with the Law Society will be delivered to inform and educate the profession on the upcoming changes.

Essential to access to justice: the legal profession and legal aid

Lawyers play a vital role in the functioning of our courts. They enable people to understand their rights, and to understand what is taking place in the courtroom. They also enable the courts’ business to be dealt with efficiently.

Inability to access legal representation is a barrier to accessing justice. It is therefore of concern to the judiciary that the legal profession is reporting that it is under significant stress.

Also concerning is that in some regions there are succession issues, with senior practitioners not being replaced as they retire from practice.

There are a number of factors contributing to this stress. Some of these are described elsewhere in the report, such as the rising number of security incidents in courts (Part 2), the increasing complexity and length of criminal and civil hearings (Part 2), and the complex needs of the people coming before the courts (Part 2).

Those who undertake legal aid work face particular challenges. Long-term underfunding of legal aid has resulted in a reducing pool of legal professionals prepared to take on work at legal aid rates. This affects all court work, but has particularly affected the criminal defence bar, where there is now a grave shortage of senior practitioners available for more complex and serious cases. This means that those who remain have unacceptably high workloads. The same is true for family lawyers. Added to that is the stressful nature of much of the work of criminal and family lawyers.

The Chief Justice has expressed her concerns about the legal aid system. She has said that it does not adequately serve the people in our court system who need legal representation, or the lawyers undertaking the work. For those who require legal representation, the eligibility thresholds are set unacceptably low, meaning that many people who cannot afford to pay for legal advice are still not eligible for legal aid. For the lawyers willing to do legal aid work, she has pointed to the inadequacy of pay rates, and the cumbersome administrative burden that the current system places on people.

She looks forward to the Ministry of Justice’s triennial review of the Legal Aid system, which will take place in 2025.

The judiciary regularly meets with the legal profession in a variety of forums to identify barriers to their work in the courts. These forums include:

The Criminal Practice Committee, chaired by the Chief Justice and made up of judges, representatives of justice sector agencies, and members of the legal profession (see Appendix 2).
Local executive judges hold stakeholder meetings in courthouses with members of the local criminal bar, Police, Crown solicitors, and Department of Corrections staff, among others.
Chief Judges of the High and District Courts meet regularly with legal professional groups, the Police Prosecution Service, Crown Law and the Department of Corrections to address operational issues that are hindering the prompt disposal of cases.

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Next section: Planning for the future

Footnotes

[46] Whanaketia – Through pain and trauma, from darkness to light and its recommendations can be found at https://www.abuseincare.org.nz/reports/whanaketia.

[47] Ian Lambie “What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand” (Office of the Prime Minister’s Chief Science Advisor | Kaitohutohu Mātanga Pūtaiao Matua ki te Pirimia, 29 January 2020) at [4] and [15].

[48] Tomo Mai is the Judicial Diversity Committee – see Appendix 2.

[49] Committee on the Rights of Persons with Disabilities Concluding observations on the combined second and third periodic reports of New Zealand UN Doc CRPD/C/NZL/CO/2-3 (26 September 2022) at [23(a)].

[50] The survey reports can be found at: https://www.justice.govt.nz/justice-sector-policy/key-initiatives/access-to-civil-justice/

[51] Wayfinding for Civil Justice – Imagining a better way of working together to improve access to civil justice in Aotearoa New Zealand (2022)

[52] Winkelmann J, Ethel Benjamin Address Access to Justice “Who needs lawyers?”, 2014: https://www.courtsofnz.govt.nz/publications/speeches-and-papers

[53] Improving Access to Civil Justice can be found here: https://www.courtsofnz.govt.nz/about-the-judiciary/rules-committee