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Chief Justice warns Attorney-General of risks to court operations

22 Mar 2024

| Author: Reweti Kohere

A “legacy of chronic underfunding” in courthouse maintenance, the threatened sustainability of the criminal and family bars, and signalled public service cuts to the courts are just three of the issues Chief Justice Dame Helen Winkelmann has raised with Attorney-General Judith Collins KC.

In an incoming (but redacted) memorandum, dated 29 November but only recently released, Chief Justice Winkelmann outlines various risks to courts’ operations, including the Ministry of Justice’s “failing and unfit-for-purpose” property portfolio.

The “legacy of chronic underfunding” of New Zealand’s courthouses means nearly half of the ministry’s 96 sites were rated “fair” to “very poor” in 2019, the chief justice said. Recent examples include flooding in the Auckland District Court, which put four courtrooms out of action, and the presence of black mould in a Hamilton courtroom, forcing its closure. Weathertightness issues have forced the wrapping of Papakura District Court in plastic for an extended period.

“Projects or planning are underway to address 10 of the 12 most critical sites, which are generally the busiest courts. If they fail, this would cause serious disruption,” Chief Justice Winkelmann said. “Most of these projects are partially unfunded, with some needing substantial further investment. Essential repair work also has a significant impact where courtrooms have to be taken out of use, increasing the shortage.”

Later in the memorandum, the chief justice said limited availability of courtrooms in the circuit courts such as Whangārei and Rotorua has affected the High Court’s ability to schedule trials. “For example, a 15-day-plus High Court criminal trial cannot be offered a trial date in Whangārei until September 2025 or in Rotorua until October 2025. This is almost 12 months later than dates in the main centres and is solely as a result of the lack of courtroom availability.”

 

Legal aid challenge

The chief justice called for “a review of the fundamentals” in light of threats to the sustainability of the criminal and family bars – a “considerable” concern to the judiciary. The retreat by medium and large law firms from providing legal aid services and the increasing number of counsel leaving the two bars, were “situations long in the making”, she said.

Judges were hearing from increasing numbers of litigants who, despite “strenuous efforts” and being eligible for legal aid, couldn’t find representation. They were also seeing the effect of “involuntary self-representation” in their courtrooms, the chief justice said. “Administrative judges receive correspondence from both counsel and those seeking aid about the inability of the system to service the need.”

In force for more than a decade, the Legal Services Act 2011 introduced a quality-assurance system for providers of legal services, changed the machinery of how legal aid is administered and removed previously mandated legal services such as the duty solicitor scheme.

The chief justice said the effect of the changes that the statute introduced, and its administration, has resulted in lawyers retreating from legal aid work – particularly so for law firms, meaning fewer lawyers have been introduced to legal aid work early in their careers. Many legal aid lawyers were also working “low bono” rates.

“It is of course accepted that there is a limit to the amount that can be spent on civil legal aid. The issue is to ensure that funds are applied, and claims are administered in a way that is efficient and equitable,” the chief justice said. “I confirm my view, expressed elsewhere, that it is time for a review of the fundamentals to refocus on equitable access to justice.”

 

Cuts and caps

As the government pursues public service budget cuts, the chief justice said she understood the courts, supported by the Ministry of Justice, weren’t exempt. Police and Corrections had been identified as providing frontline services and the courts “do of course provide essential front-line services. Fully staffed registries and judicial support are essential to the orderly and efficient conduct of court business,” Chief Justice Winkelmann said.

“I am aware the Secretary for Justice will be making representations to the Minister of Justice about this and he has my full support in that regard.” The need to review the statutory cap on the number of senior judges was also highlighted. The senior courts’ workloads have increased since the statutory cap was last lifted nearly 20 years ago, Chief Justice Winkelmann said. New Zealand’s population has increased by a quarter to just over five million and the length and complexity of court hearings have increased “very substantially”, causing “worrying levels” of judicial stress and fatigue.

The effective cap for the High Court is 40 judges; for the Court of Appeal, it’s 10. The chief justice said she had raised a review with the Secretary for Justice. “This is a matter which probably falls within the purview of both the Attorney General and Minister of Justice.”

 

Read the briefing here. ■

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