Heads of bench and the Ministry of Justice this week updated the profession on efforts to mitigate some of the “generational damage” that structural issues are inflicting on New Zealand’s justice system. There are some reasons for “cautious optimism”, participants heard on a webinar on Tuesday hosted by the New Zealand Law Society.
Chief Justice Dame Helen Winkelmann was joined by Chief High Court Judge Susan Thomas, Justice David Goddard, Acting Chief District Court Judge Ida Malosi and Secretary for Justice Andrew Kibblewhite.
Lawyers were told the judiciary’s flagship digitisation project, Te Au Reka, had passed an important milestone: the ministry and the judiciary have this week signed up to the first phase of the design and build using Microsoft-based systems.
The initial rollout of the digital case management system should be live in the Family Court within three years, Justice Goddard said, with the second and third phases, covering the District Court, senior courts and some specialist courts taking five years.
“I’m an impatient person, I’d like to see it happen a lot faster. But the most important thing is it’s a generational opportunity to get it right and that’s what we need to do, with lots of consultation with the profession and other users,” he said. Described by the Court of Appeal judge as one of four high-priority initiatives identified in the courts’ digital strategy.
Te Au Reka would sit alongside improvements to remote hearing technology, fit-for-purpose physical infrastructure for digital working, and high-quality training and support. The judiciary expects progress will be made on all four during the next five years. Te Au Reka will be the most significant, however, as it will facilitate more meaningful participation and interaction, make the courts more effective and efficient, and could improve access to justice if done well, Justice Goddard said. “It’s change that’s long overdue, change that’s happened in courts overseas, with our court system playing catch-up after more than two decades, really, of treading water.”
The digital strategy was just one of several system-wide initiatives being progressed to address what Chief Justice Winkelmann described as “structural” issues. The past three years had been an “extraordinarily challenging time” for the profession, the judiciary and the ministry, she said. The pressures that were coming to bear on lawyers are unprecedented. “Wherever you look in the justice system, there’s stress.”
The covid catchup was one explanation, as were the chronic underfunding of, and administration issues with, legal aid. “I have no doubt this generational issue has caused generational damage to the structure of the profession,” Chief Justice Winkelmann said. As the stream of legal aid practitioners is drying up, fewer have been left to carry the burden. This was a “vicious cycle”, Chief Justice Winkelmann said, resulting in burnout and increased barriers to accessing justice.
Some reasons for cautious optimism existed though, she said. A judicial working group, made up of Justice Sally Fitzgerald and Judges Russell Collins and Peter Callinicos, was developing a framework of principles to guide the use of remote participation in proceedings.
The group would then consider, alongside the Department of Corrections and New Zealand Police, how best to operationalise it because the upsides of remote participation couldn’t “obscure” the imperative for just outcomes and procedural fairness, the chief justice said. Judges’ bench books, an electronic resource that compiled current case law and statute, legal commentary and practice directions, were another initiative.
While work was continuing toward publishing some of the specialist books, Chief Justice Winkelmann intended the full criminal jury trial book would be made publicly available in 2024, representing a step forward in making the judiciary’s processes more transparent, she said.
In response to leaders of the profession recently alerting the bench of wellbeing concerns among lawyers, Justice Thomas and Chief District Court Judge Heemi Taumaunu shared concerns with their judges. Practitioners have reported that they are operating under immense workload pressures, as well as feeling increasingly stressed and overwhelmed – all of which are jeopardising their ability to serve their clients.
Justice Thomas, who attended a series of meetings with counsel throughout the country, said it was crucial the line of communication between judges and the profession remained open as “understanding one another’s perspectives is really essential”
Criminal jury trial numbers have returned to pre-covid levels, participants heard, although cases are taking much longer to resolve. The mix of work has changed with homicides and large, multi-defendant drug cases increasing in number. Trial dates are typically being set 14 months after first appearances.
The recently-released criminal disclosure practice note, designed to avoid the stress that late disclosures cause, was an important initiative, as was a new civil case management system in which a greater number of cases will be assigned to High Court judges for more intensive case management. Justice Thomas said: “The court cannot control the volume of its work, but what it can and must do is manage its work as effectively as possible to reduce unproductive time and effort for everybody.”
Te Ao Mārama
Judge Malosi said Chief Judge Taumaunu had asked his executive and liaison judges to arrange meetings with the profession to better understand their concerns and work through local solutions. While not all their responses have yet been received, the discussions were reportedly “very constructive”. Judge Malosi encouraged the profession to keep raising issues with the judiciary. “The District Court sees this as an ongoing conversation and is very committed to remaining engaged in it.”
Practitioners are concerned about what skills they will need to work within Te Ao Mārama, the District Court’s landmark initiative to incorporate the hallmarks of specialist and therapeutic courts into its mainstream criminal and family work. Te Ao Mārama is fundamentally about “timely justice”, Judge Malosi said, which would require change “and new skills for everyone”. The court aimed to share more resources with the profession; a best practice framework would be developed over the next three years.
The judge acknowledged the court’s backlog has progressively worsened since at least 2015. While 2023 felt “as though, maybe, the backlogs would get the better of us”, Judge Malosi said recent reviews of rostering and scheduling had created more cautious optimism that the court could start to reduce the build-up. Early results from a new priority-based approach implemented in the Auckland region have been promising: between 1 May and 20 August, the criminal backlog has been reduced by 550 cases, the judge said. “All our efforts to address that backlog need to take into account and address the fact that there is a human toll on both sides of this complex equation.”
On safety and security in court, Kibblewhite acknowledged that lawyers were feeling “a more pervasive anxiety” in light of Isaac Aydon’s brutal assault on family lawyer Brintyn Smith in the Whangārei District Court earlier this year. Aydon was sentenced to two years, seven months’ imprisonment. Safety was “an absolute priority”, he said. The ministry now employed more than 340 court security officers, up from 50 in 2009, with more material increases having been made in the last four years.
The ministry had also invested in a training facility in the Hutt Valley. More emphasis could be placed on courthouse inductions for counsel “so that everyone is fully aware of where the jury alarms are, how to engage them, how to engage with security”.
The state of New Zealand’s courthouses, some of which were in a “sorry state”, was another concern. Kibblewhite said nearly a third of the ministry’s building portfolio had been assessed in 2019 as in a poor or very poor condition. “At the risk of starting to be repetitive”, underinvestment had also been made in this space over several decades. However, more investment had flown into buildings in the past three years than had been seen in a generation.
New builds were underway in Tauranga and Whanganui, land has been purchased for new courthouses in Waitakere, Papakura and Rotorua, capacity upgrades were set to start at the Manukau District Court and Cabinet had recently agreed to spend $150m on seismic strengthening a raft of courts, including the High Court at Wellington.
Kibblewhite said: “There’s a long list of projects – I won’t name any more of them – but I would just hopefully leave participants on this call with a more optimistic frame.” ■