Chief Justice says independent judiciary under attack worldwide, rule of law in decline

Neil Sands

Chief Justice Dame Helen Winkelmann says hikes to court fees are creating a barrier for accessing justice and highlight the human cost of resource constraints facing the court system.

She also warns that New Zealand cannot not be complacent amid attacks worldwide on the independence of the judiciary, saying those involved in the justice system must strive toward the ideal of the rule of law.

“If people don’t have access to independent courts, the rule law is replaced by the rule of the strong over the economically weak and vulnerable,” she told a New Zealand Law Society breakfast in Auckland on Thursday.

Winkelmann — who said she had been reading comments this week from US Supreme Court Chief Justice John Roberts on the topic of the rule of law — painted a bleak picture of the situation for the judiciary around the globe.

“Worldwide, the rule of law is in decline.  Public confidence in institutions is eroding and, of course, that confidence is key to the rule of law,” she said. “In some countries, there are attacks on the independence of the judiciary, and that really does strike at the heart of the rule of law. It’s a worrying signal.

“It’s because access to independent courts can check the abuse of power, whether it’s economic or political power, that courts are often the target of those who resist such constraint.”

Winkelmann pointed to New Zealand’s position at sixth on the World Justice Project’s Rule of Law Index as grounds for optimism, saying “we must be doing something right”.

While the independence of New Zealand’s judiciary is not under serious or sustained attack, she said there were still “work-ons” that should be addressed.

Fee issue ‘not improved’

A major concern was access to justice, with the Chief Justice saying rising fees introduced in last year’s Budget had exacerbated an issue that had been on her radar for more than a decade.

“In 2011, I gave a speech about the substantial barrier to access to justice that court filing fees and hearing fees pose, and how it is wrong to take too far a cost-recovery model when setting court fees,” she said.

“The situation has not improved since then. Last year, the government announced substantial lifts to court fees for civil courts and tribunals. The increase has been up to 30%.”

The changes affected a range of tribunals, the civil jurisdiction of the District Court and High Court, the Court of Appeal and the Supreme Court.

They included a 10% increase for fees in the criminal jurisdiction of all courts, the Family Court, the Environment Court, the Employment Court and the Māori Land Court.

The New Zealand Law Society expressed reservations about the fee increases at the time and listed some of the major examples:

• A $330 increase to the fee for filing applications for leave to appeal to the Court of Appeal and the Supreme Court;
• A $810 increase to the fee for scheduling hearing dates in the Court of Appeal for applications and proceedings which are not interlocutory applications or applications for leave to appeal;
• A $480 increase to the fee for scheduling hearing dates for certain types of applications and proceedings in the High Court;
• A $210 increase to the fees payable for all residence-class visa appeals and deportation appeals to the Immigration and Protection Tribunal; and
• A $123 increase to the fee for filing a Notice of Claim with the Taxation Review Authority.

Human cost

Winkelmann said the cost of legal representation was another serious impediment to people’s ability to access the courts, restating her view that the legal aid system should be better funded.

“I’m pleased to see there is a first-principles review of the legal aid system. I hope that results in better funding,” she said.

Justice Minister Paul Goldsmith announced the legal aid review in February, saying the government has a duty to ensure those who cannot afford a lawyer still have access to legal advice and representation.

The review, which is expected to report later this year, comes after LawNews revealed last September that some legal aid lawyers were working for below the minimum wage or receiving no payment at all, raising fears the system was becoming untenable.

Winkelmann also cited the legal aid system as a factor in a shortage of lawyers who could handle senior-level criminal defence work, which contributes to delays in the court system.

She said a lack of adequate High Court courtrooms in some areas also aggravated delays, along with limits on the number of judges in the higher courts, which has knock-on effects through the system.

“We have a need for more judges in the District Court, High Court and Court of Appeal,” she said.  “For example, the statutory imposed limit on the number of judges that can be appointed in the senior courts – the High Court and Court of Appeal – has not been raised since 2004… Factors such as these mean that in some centres, time to trial is longer than it ought to be.

“This also means the court is seldom able to take on any criminal trials outside of the homicide trials it must hear. At present, those trials make up approximately 80% of the court’s criminal trial workload. “That has the effect, of course, of putting criminal work down onto the District Court, which is itself struggling with judicial resourcing.”

Winkelmann said such delays came at a price for people involved in the justice system.

“I acknowledge that these issues have been years in the making, but the cost of delay in addressing them is to be measured in human terms. It’s the human cost of delay for victims, the defendants and the families caught up in the system.”

Abuse survivors acknowledged

Winkelmann said barriers to justice were acute for the deaf and disabled communities, with the latter suffering higher levels of victimisation than the general population.

She said work was underway to improve the situation with a number of initiatives, including a bench book detailing how to support deaf and disabled participation in courts, which is set to be published later this year.

Winkelmann said she had also asked the Ministry of Justice to improve the online information available to those communities, which was often incomplete, out-of-date and not available in one place.

“It’s as simple as this: supporting access by members of the disabled and deaf communities should be seen as part of the core work of the courts,” she said.

Winkelmann said many of the victims of abuse in care were disabled and the Royal Commission into the issue showed what could happen to the vulnerable in the justice system.

“It describes the barriers survivors face when seeking justice, including inadequate support to navigate court processes and the re-traumatising effects of being in court in our adversarial system of justice. As Chief Justice, I acknowledge the court’s role in these systemic failures and the resulting injustice.”

 AI privacy concerns

Winkelman said systems changes, such as those being introduced as a result of work by the Rules Committee, could help improve access to justice, although it would require a change in culture for judges and the legal profession.

She said the Te Au Reka digital court system and remote participation, with appropriate safeguards, would also change the way justice is administered.

She said New Zealand was emerging as a world leader in adopting artificial intelligence (AI).

“We’re working with Singapore, England, Australia as we look at these kind of issues,” she said.  “New Zealand developed the first guidance for use of AI in courts. That was picked up and copied almost verbatim by the UK; it’s been picked up and used across Australia and in Singapore.

“We’re working with Singapore on sandpits to work out where it’s appropriate to use AI in the courts and where it’s not. The general conclusion, which is pretty obvious, is that there are privacy concerns. So as the judiciary we have to be very concerned about that.

But in courts it’s useful for tasks like plain English and summarising things… It’s not that great at research. It doesn’t generate new ideas, but it’s pretty good at summarising the ideas that are out there.”