Neil Sands
A review of legal aid launched almost 18 months ago has failed to deliver a fix for the ailing system, prompting a broader follow-up project looking for efficiencies across the entire justice sector, such as reducing the number of jury trials and streamlining complex case procedures, Justice Minister Paul Goldsmith said on Friday.
As revealed by LawNews last week, officials are establishing the Accessible and Affordable Justice Programme to find ways of engaging with the justice system easier and cheaper.
Goldsmith said the programme was needed because the legal aid review, which was launched in February last year and still has not been released, “didn’t come up with solutions sufficient to the challenge that we face”.
“The conclusion we came to was that the issues are much broader than just the legal aid system, they’re more systemic across the wider justice system,” he told a breakfast function in Auckland organised by The Law Association (TLANZ).
He said that over the past three years, the legal aid budget outstripped inflation by $33 million. Figures released by the Ministry of Justice put the blowout at almost 60% over the past five years, from $192.5 million to $304.7 million.
Goldsmith said it was “fundamentally unsustainable in the context of the broader budget”.
“We’ve been pouring more money into the scheme and yet it seems to be coming under more pressure at the same time… it’s not as if we’ve got access to X-billion dollars that we can just throw at the problem. We don’t.”
Jury trials on trial
Asked if he was disappointed the ministry had carried out a lengthy review, including a consultation paper and seeking feedback from the legal profession, only to decide another, more widespread review was required, Goldsmith replied:
“Of course, I would have much preferred to be able to solve all the problems last year, but it hadn’t turned out that way. That’s, the reality.”
However, the review may not have been a complete waste of time. Goldsmith said it will help inform “changes to legal aid settings to ensure funding arrangements better support timely resolution while improving outcomes”.
He did not specify what those changes might be, but a discussion paper released last year canvassed several options for reining in legal aid costs, including bulk-contracting cases to law firms, involving more junior lawyers, reducing the need for specialist reports, and simplified structures for fees and administration.
That will form one of the Accessible and Affordable Justice Programme’s three workstreams. The others relate to jury trials and complex court procedures.
Goldsmith said the proportion of trials that defendants elect to be heard by jury, rather than judge-alone, had more than doubled in the past decade, contributing to a 64% increase in the number of jury trial cases over the same period.
“They, of course, take much longer and are much more expensive in terms of legal aid,” he said.
The minister referenced moves in Britain to scrap jury trials for all but the most serious cases, The changes there will mean jury trials – first formally set out in the Magna Carta of 1215 – will still be guaranteed for offences such as rape, murder, aggravated burglary, blackmail, people trafficking, grievous bodily harm and serious drug prosecutions.
But cases attracting a likely sentence of three years or less, as well as complicated fraud/financial cases, would be heard by a judge alone.
In New Zealand, a defendant facing a potential jail term of two years or more can elect to have a jury trial.
The government launched a consultation in 2024 on whether the threshold could be lifted to three, five, or seven years, but it is yet to result in any concrete proposals.
“We’ve already sort of talked about it to some degree around the time thresholds, but I think we need a slightly more sophisticated discussion around how we can precisely engineer that, to take pressure off the number of jury trials,” Goldsmith said.
Clayton Kimpton, Samira Taghavi, Paul Goldsmith and Tony Herring
‘Dispiriting churn’
Another focus for the new programme is dealing with the increasingly complex nature of court cases, which Goldsmith said had driven the average cost per case by 42% in civil matters, 34% in family, and up to 76% in criminal.
“[It’s] the sheer volume of information and evidence that legal aid lawyers have to deal with, and the increased number of expert reports and complex forensic material that needs to be understood,” he said.
Goldsmith said inefficiencies in the way the justice system operates were also contributing to the soaring legal aid costs.
“We’re seeing… the dispiriting churn and delays and adjournments which continue to plague the system, and the inevitable costs that are associated with that. They’re not good for defendants or witnesses or participants or victims.”
Goldsmith said an increase in the use of specialised courts was also an option for dealing with the challenges facing the justice system.
Elaborating on the issue of court scheduling and case management, he said:
“As a non-lawyer looking at the system, it does surprise me how accepting the system is of people just not being ready for things and adjourning things.
“My view is that we’re dealing with a limited and very expensive public resource in terms of the whole justice system, and people don’t have an open right just to muck around with it.
“There needs to be some real discipline in place, and if people aren’t ready, there need to be consequences for that, and that’s not just on the defence side, it’s also the prosecution side and everybody else, so my message, for what it is, for what it’s worth, is that this is a limited resource, and people need to treat it accordingly.”
Goldsmith said the programme will involve a small team that will work directly with the judiciary, sector agencies, and the legal profession, including a practitioners’ advisory group made up of lawyers with strong practical knowledge of how the system operates.
He said the programme’s “broad rethink” of the justice system should be complete before next year’s Budget.
The probate process used to take weeks or months. Now it takes days. Firstly, they reviewed the procedures and criteria to ensure applications were processed more smoothly. Secondly, they recruited enough team members to ensure new applications were processed quickly. Thirdly, they implemented the new system for new applications while gradually catching up with the previous backlog.
Somehow there must be a way to improve the procedures and criteria so that fewer delays normally occur in new cases. In itself, that will not solve the problem. There need to be enough resources to maintain whatever the improved system may be. And there need to be additional, temporary resources to clear the backlog.
When ordinary proceedings take years (rather than months or weeks), of course costs increase. Evidence must be updated. Memories fade. Witnesses move. Attitudes harden. Lawyers move on.
The government needs a dedicated task force that tackles one area at a time, to improve the procedures and criteria, ensure adequate resources for the new approach, and remove the existing backlog.