Chris Penk
Wellington, August 17, 2022
It is no secret that New Zealand’s court system is broken. The extraordinary delays to justice that confront New Zealanders today are like never before.
Justice needs to be delivered in a timely fashion to limit the amount of stress for victims, their families and everyone involved. Whilst I accept that delays have occurred under both colours of government, I do want to point out that the current delays have been exacerbated by the government’s response to Covid-19.
Cost-neutral systems
Given the huge debt racked up by the current government, we need policy ideas which improve systems yet are cost-neutral – or even save money. Because technology is vastly under-utilised in New Zealand courts, it should be possible to improve systems and save money.
Some aspects of court processes cannot be easily changed (e.g., in-person criminal trials) and hence we should preserve the resource-intensive court system for situations where private justice is not realistic, i.e., criminal cases and civil cases that are demonstrably unable to be resolved without recourse to the court. This philosophy applies both to (a) methods involving private adjudication (i.e., mediation and arbitration under the heading of alternative dispute resolution); and (b) the Disputes Tribunal, which will have an expanded jurisdiction to reduce further the burden on courts proper.
Some ideas that I have been considering to address the court crisis include:
Civil court is the last resort: Civil courts will only hear cases where the party filing proceedings is able to demonstrate they have already made all reasonable efforts in good faith to resolve the matter. Judges may order cases to mediation. Costs awarded against a party in civil litigation may include the reasonable costs of the court, as a further mechanism to encourage settlements outside of court trial processes.
Alternative Dispute Resolution (ADR): All courtrooms will be made available for hosting ADR sessions, i.e., mediation and arbitration, whenever the court is not in session (including on weeknights and weekend days).
Disputes Tribunal:
The Disputes Tribunal’s jurisdiction dollar limit will be removed entirely, where parties agree prior to the hearing; and $50,000, where parties do not agree to the proceedings (NB: currently $30,000). Debt recovery matters will be heard by the Disputes Tribunal (NB: currently disallowed). Orders by the Tribunal not followed will constitute contempt of court.
AVL maximised: Use of audio-visual links will be maximised between the court and remand custody (including police stations), as well as other prisons.
Open Justice: National will create a presumption that court judgments, including sentencing notes, are made publicly available. These must be made available online promptly after being issued by the court, except where there is a good reason to limit public access to specific judgments (such as protecting the privacy of victims). This is not currently the case. Open justice demands that the public have the ability to scrutinise judicial decisions. Where there are good reasons to limit public access to specific judgements, redaction should be used where possible (rather than judgments being withheld altogether) so that the principle of open justice is preserved to the maximum extent possible.
I will keep calling on the government to take action to fix our broken court system and propose these ideas so that we can deliver justice for New Zealanders.
Chris Penk is elected Member of Parliament from Kaipara Ki Mahurangi and the National Party Spokesperson for Courts. He is also the Senior Whip and Shadow Attorney-General and Associate Spokesperson for Justice.
