Access to Justice in New Zealand Advancing what’s possible Barbara Relph* The last 12-18 months have undoubtedly been challenging for people around the world. The impact of the pandemic has been profound and far reaching, impacting national economies, as well as our ability to work and socialise. LexisNexis has studied the correlation between the rule of law and economic growth and stability.1 A reliable justice system provides necessary protections and upholds the rights of individuals and businesses, ensuring investor confidence and driving opportunities for economic prosperity. Access to the institutions of justice is fundamental to the rule of law. In these unusual times, movement is restricted, and we are forced to rely on online communications and access to products and services.2 We are fortunate that much of the information we need is freely available. But not everyone has the same resources to access these services and to understand how they can best suit their needs. They need an intermediary to help them to understand their situation and to best present their case. There are numerous lenses through which to view the impacts of COVID-19 on the rule of law, each raising interesting questions that could be discussed at length. Has the imposition of discretionary powers by Governments over their citizens been carried out in a just way? Is restricting the human right to freedom of movement justifiable in the name of public health? How has the right to work been affected? Should people who refuse vaccination be entitled to access public places and put others at risk?
The first access point is legal aid. It is no secret to anyone that civil legal aid has been hit hard ever since the Bazley report. Reforms that were intended to promote efficiency instead drove practitioners away from the provision of legal aid services. The rates for both criminal and civil legal aid providers do not encourage participation in the scheme, especially with the uncertainty around recovery for aspects of file management. And critically, the threshold below which people qualify for legal aid is completely out of touch with reality. The result is that only a small percentage of applicants qualify, and a large proportion of cases simply cannot be heard because of cost. The second access point is improving pro bono initiatives. While there is no requirement for lawyers to carry out pro bono work, there is pressure – an expectation, if you will – that they do so. There are community-based pro bono initiatives improving access to justice but up to now, there has been a lack of co-ordination between the providers. The recent introduction of te Ara Ture - a pro bono legal service connecting volunteer lawyers to people who need legal help - is a massive step forward for the community. But this has some way to go. But most importantly, pro bono work should never be viewed as a substitute for a functioning legal aid system.
Inadequate access to justice threatens the rule of law in legal systems not just in New Zealand but around the world. Alongside a broad and far-reaching global campaign, improving access to justice across Aotearoa is an initiative LexisNexis has chosen to focus on this year. While a significant amount of work is performed by hundreds of professionals in the legal industry every year, the gap in access to justice in the country is widening, affecting many layers of the community.
The third access point is court procedures that affect the cost and speed of resolving litigation and affect access for lay litigants. The Rules Committee recognised that any meaningful response to the matters raised during the initial consultation process required proposals for reform going beyond rulesmaking and extending to proposals for the amendment of primary legislation. In May 2021 the committee produced a consultation paper4 that recommended, inter alia, significant changes to the Disputes Tribunal’s jurisdiction, introducing Deputy Judges/Recorders to the District Court and greater judicial intervention, together with a streamlined disclosure process, at the High Court level.
Extensive research has assessed the weaknesses of the justice system, with the objective of improving the experiences and outcomes for victims and reforming the rules governing civil trial procedures. In its 2018 report3, the New Zealand Bar Association, identified four points at which access to justice could be improved.
Finally, there are inherent limitations in the current structuring of fees. “Low bono” or a discounted fee structure, billing on a contingency basis, or unbundling legal services are all mechanisms which would improve access to justice for clients unable to fund their cases. However, there are some real barriers to change in this area, including both regulatory and liability issues.
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SEPTEMBER 2021
