AUTHOR: Peter Dunne
Here is a think piece on reforming our Courts system, based on a recent address I gave to the English Speaking Union:
I want to offer a few insights about whether it is politically possible to reform the Courts system, but before doing so, let me make some more general observations about the New Zealand legal system. As I do so, I am reminded of Lord Acton’s famous dictum, “The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.”
I think the tradition of our legal system – from the signing of the Treaty of Waitangi through to the Human Rights Act, and other specific enactments – has been generally liberal. At the same time, however, this generally liberal thread to legislation and constitutional development has been matched by generally illiberal public opinion. One has only to look at the popular press over the years, or, perish the thought, be brave enough, or sufficiently mindless, to listen to talkback radio, or even worse, trawl through the blogosphere to see what I mean. Whereas the emphasis of our legal system has been on promoting and upholding the rights of citizens and minorities, the opinions expressed through these media have been unfailingly about curtailing existing rights or privileges. Why are “they” getting away with “this” (whoever they are, and whatever this is) seems to be the common refrain. This tension between a generally liberal legislative framework and illiberal public opinion has produced what might be described as a grudging approach to justice, where matters of noble principle have become secondary to the process.
With one or two notable exceptions, the great trials and court procedures of the day often seem less about seeking justice for an individual than about getting the matter resolved, and increasingly satisfying the victims. Questions of guilt or innocence are often secondary to getting on with the business, and there is an underlying feeling that “they probably did it anyway, otherwise they wouldn’t be here in the first place.”
No matter which way you look at it, the process is failing. If you subscribe to the getting on with the business approach, there are already excessive delays in getting cases to Court – especially major criminal and civil cases – and there seems to be an increasing number of basically wrong decisions being made by the Courts. And the clamour for greater recognition of victims’ rights is intensifying, alongside a growing feeling that the legal system pays too much attention to the offender, and not enough to the victim. If you are in the camp of wanting every citizen to have proper access to due process, then you will have long since come to the view that the system is failing.
So, against this backdrop of conflicting legal and societal aspirations, the question becomes, can the Courts system be reformed, and is this politically possible? The most obvious response is to focus on what I might call the Mussolini approach – getting the Courts to work more efficiently. But this may not prove to be enough to make real change. Yet it may also be all that is achievable. Complicating this question is the fact that the range of new Courts, and quasi judicial tribunals, all exercising a range of jurisdictions, has grown considerably in recent years. We now have to factor in bodies such as the Environment Court and the Family Court; judicial commissions like the Human Rights Commission, the Health and Disability Commissioner, and the Race Relations Conciliator, along with the Disputes Tribunals, the various Immigration and Resettlement Review Tribunals, the Accident Compensation Corporation Review Tribunals, and other bodies like the Child Support Administrative Reviews. And it may not be long before we have to consider a separate Maori or marae based judicial system.
So when we come to talking about reforming the Courts, what are we actually talking about? All of the above? Or just the District, High, Appeal and Supreme Courts? Successive governments have embarked upon small processes of Court reform. Often, these have been limited to building new Courtrooms, or procedural changes such as the removal of Depositions hearings during the term of the last Parliament. Occasionally, there has been talk about wider reforms. The present Minister of Justice has spoken of the lower Courts sitting in the evening – necessary, sausage-factory justice, if you like. There has also been talk of placing time limits within which major cases must come to trial, on the basis that the current often lengthy delays are a form of justice delayed being justice denied. (It is not clear, however, what the definition of a major case might be, and what the consequent process for managing those other and presumably less major cases that are bumped down the queue is to be.)
All of the above changes come under my Mussolini umbrella. But there are other changes that are worthy of consideration. The area of judicial training at all levels is an obvious one. We need judges who are well trained as to their responsibilities, and their obligations, judicial and public. The public needs to feel confident that the Judiciary not only knows the law, but is also in tune with the mood of contemporary society. There has been some progress on this front in recent years, which probably needs to be expanded.
But it immediately raises the issue of judicial accountability. To what extent do we expect judges to be accountable – and to whom? Their peers, the government, or the general public? While I would not go so far as to promote the direct election of judges, as already happens in a number of American states, as a purported way of enhancing judicial responsiveness and accountability, I do make the point that it is the extreme end of the seemingly innocuous road to greater judicial accountability, and that any journey in that direction needs to be undertaken with extreme care. The old maxim of never setting out on a journey until you know where you want to end up applies here.
The closest we seem to have come to that type of approach in New Zealand is the on-again, off-again story of the Sentencing Council. The pressure of lobby groups like Sensible Sentencing and the uproar over the 1999 Withers petition on violent offending meant the government in the early years of this century felt impelled to respond, to be seen to be “doing” something. The upshot was a raft of longer prison sentences for mainly violent offending to show how tough the government was, and how it was responding to the public’s more retributive calls. However, it was one thing to pass tough new sentences, and quite another to expect judges to always sentence at the upper end of the tariff as a consequence. Not unreasonably, the judges maintained their discretion, and so, with another election looming, the politicians felt they had to do yet more to prove their law and order credentials, hence the establishment of the Sentencing Council to help “assist” judges on sentencing matters, and presumably bring them more into line with prevailing public sentiment. Its immediate fate is unclear, with the new government committed to its abolition, which presumably is likely to occur sooner rather than later.
All this goes to highlight my original point. The grudging approach to justice I spoke of earlier, because of the imbalance between a liberal legislative environment and illiberal public opinion, places a profound constraint upon governments in reforming the Court system. Reforms that “make the trains run on time” are likely to be tolerated, while reforms that uphold the rights of citizens, which Lord Acton would have approved of, let alone extend those rights, are less likely to find public favour.
In short, therefore, as governments cannot afford to stray too far outside the tram lines of public opinion, and as touchstone issues like health and education will always the dominate the competitions for public attention and government resources, I do not hold too much hope for major Court reform in the immediate future.