New Zealand

1. GENERAL INFORMATION

1.1. Form of government

Aotearoa[1] New Zealand is a parliamentary democracy where almost all laws are national (regional laws are generally confined to local infrastructure and planning). The 120-seat parliament is elected under a Mixed Member Proportional System, dominated by two parties left and right of centre, which rely on the support of smaller parties.

New Zealand’s government system is based on the doctrine of separation of powers. Each of the three branches of government (the Legislature, the Executive, and the Judiciary), balances the other two branches.

The Treaty of Waitangi/Te Tiriti o Waitangi (1840) (The Treaty of Waitangi) is an important constitutional document that established the legal and political relationship between the Crown/colonial government and the indigenous Māori population. Although the Treaty was “intended to create unity”, different understandings of its key words, and breaches of it, have caused conflict[2]. Following pressure from Māori Members of Parliament, the Treaty of Waitangi Act 1975 was passed, which gave the Treaty statutory recognition. From the mid 1980s acts of parliament began to include references to the Treaty of Waitangi and its principles, which allowed the courts to interpret the extent to which Treaty principles are raised in any case covered by the relevant legislation[3]. All Crown entities (including government departments, state-owned enterprises, public schools and hospitals) and local authorities are required to conduct business in a manner consistent with the Crown’s obligations as a Treaty partner. This means that the needs of Māori and the inequities faced by them must be taken into account. How well this is done in practice remains a subject of significant debate.

1.2. Demographics, ethnic groups, languages and religion.

The 2018 census records New Zealand population at 4,699,755. New Zealanders identify as European (70.2%); Māori (16.5%); Pacific (8.1%); Asian (15.1%); Middle Eastern, Latin American, African (1.5%); or other (1.2%). There are three official languages: English, Māori, and New Zealand Sign Language.

The 2018 census reported that almost half of the population (48.2%) had no religion. Of those that do have a religion, there is a diverse range with 157 different religious affiliations. The top five denominations are: Anglican (6.7%); Christian (no denomination specified, 6.6%); Roman Catholic (6.3%); Presbyterian (4.7%); and Catholicism (not further defined) (3.7%).

1.3. Social and economic environment[4]

The gross domestic product (GDP) for New Zealand over the last 10 years is reported in Chart 01.  The gross national income at purchasing power parity per capita is $33,970.[5]

Chart 01. New Zealand GDP from 2010 – 2018, reported in US Dollars and NZ Dollars

In New Zealand, inequality is generally measured by the P90/10 (or P80/20) ratio. This ratio shows the difference between high household incomes (those in the 90^th percentile) and low household incomes (those in the 10^th percentile); the higher the ratio, the greater the level of inequality.[6] In 2017, household incomes (before accounting for household costs) at the 90^th percentile are around 4.06 times the level of incomes of households at the 10^th percentile; this difference is 5.68 after accounting for housing costs[7]. The Gini coefficient (despite the methodological limitations) is also calculated: reporting a score of 34.4 (before accounting for household costs). The Gini coefficient is also reported using square root equivalence scale to allow for OECD comparisons[8]. The United Nations Development Programme inequality-adjusted index reported for New Zealand in 2017 was 0.846.

Between 2016 – 2018, a New Zealander’s life expectancy at birth was 80.2 years for males and 83.6 years for females[9]. In 2017, a New Zealander’s life expectancy at birth is 80.4 years for males, 83.7 years for females, and 82 years overall[10].

The United Nations Development Programme recently reported the expected years of schooling is 18.8 years and the mean years of schooling is 12.7 years[11]. In 2019, New Zealand’s Human Development Index was 0.921, ranking New Zealand 14^th.[12]

2. LEGAL SYSTEM

2.1. Type of legal system

New Zealand is a common law jurisdiction with a Westminster-style parliamentary democracy. It has a single house of parliament and an independent judiciary. The constitution is comprised of a number of separate laws and conventions. The Treaty of Waitangi is an important constitutional document and is also incorporated by statute into certain areas of law.

2.2. Organization of the justice system

New Zealand’s justice system is unitary but with multiple levels. The highest court is the New Zealand Supreme Court, which was established in 2004 to replace the United Kingdom Privy Council as New Zealand’s final court of appeal. The other general courts, in descending order, are the Court of Appeal, High Court, and District Court. The District Court, which hears civil and criminal matters, also includes the Youth Court and Family Court. New Zealand also has three specialist courts: Employment Court, Environment Court, and Māori Land Court.

The Māori Land Court was established in 1865 to convert customary Māori land into titles that could be acquired, initially by the colonial government and later by individual settlers. Since the passing of Te Ture Whenua Māori Act 1993,[1] the Court’s role is to:

(a)Promote the retention of Māori land in the hands of its owners, whānau[2], and hapu;[3]
(b) Facilitate the occupation, development, and use of Māori land; and
(c) Ensure that decisions made about Māori land are fair and balanced taking into account the needs of all owners and their beneficiaries.

The Māori Land Court’s website contains information about the Court’s history and its present-day functions[4].

In addition to courts, New Zealand has a large number of tribunals and authorities. These are expert forums that have legislated authority to resolve a range of civil disputes, but are under the supervisory jurisdiction of the District Court or the High Court. There are a number of civil claim tribunals that provide quick and inexpensive ways to settle a dispute as they are less formal than a Court. The Disputes Tribunal, for example, can resolve small civil claims that have a value of no more than NZ$30,000.

The Waitangi Tribunal is a standing commission of inquiry. It makes recommendations on claims brought by Māori relating to legislation, policies, actions or omissions of the Crown that are alleged to breach the promises made in the Treaty of Waitangi. The role of the Tribunal is set out in section 5 of the Treaty of Waitangi Act 1975 and includes:

(a) inquiring into and making recommendations on well-founded claims;
(b) examining and reporting on proposed legislation, if it is referred to the Tribunal by the House of Representatives or a Minister of the Crown; and
(c) making recommendations or determinations about certain Crown forest land, railways land, state-owned enterprise land, and land transferred to educational institutions.

In fulfilling this role, the Waitangi Tribunal has exclusive authority to determine the meaning and effect of the Treaty. It can decide on issues raised by the differences between the Māori and English texts of the Treaty.

New Zealand has three therapeutic courts within the criminal District Court system. These therapeutic courts aim to address issues that contribute to a person’s offending, in particular alcohol and other drugs, and homelessness.

The Youth Court system also includes Rangatahi[5] and Pasifika Courts which apply the same law and procedure as any other Youth Court, but on a marae[6] or Pasifika community setting, and incorporate Māori and Pacific languages and protocols. Young people of any ethnicity may be referred to these courts if they admit to their offending, and if the victim consents.

A Rangatahi Court hearing is held on a marae, and facilitated by a Youth Court Judge together with kaumatua[7] and/or kuia[8]. Hearings begin with a pōwhiri[9], and the young person is required to learn and deliver a pepeha[10]. Kaumātua or kuia may offer advice to the young person, and some Rangatahi Courts provide access to tikanga[11] learning programmes. There are 15 Rangatahi Courts in New Zealand. Pasifika Courts operate in a similar way to the Rangatahi Courts. Pasifika Courts are held at Pasifika churches or community centres. A judge will facilitate the hearing with assistance from Pasifika elders. There are two Pasifika Courts, both in Auckland.

Chart 02. Hierarchy of New Zealand Courts and Tribunals

Māori customary law is recognised in New Zealand law provided certain criteria are met. Specifically: the custom is long standing, it is has continued without interruption since its origin, it is reasonable, it is certain in its terms, and it has not been displaced by Parliament through clear statutory wording.

2.2.1. Court workloads

In New Zealand, the District Court deals with the bulk of the cases, and sees upwards of 200,000 criminal, family, youth and civil matters every year. Most of the court’s work comprises criminal cases. Each Court reports biannually on the number of new cases in the reporting period (“new business”), the number of cases disposed during the reporting period (“disposals”) and the number of active cases ongoing at the end of the reporting period (“active cases”). See Chart 03 for the District Court statistics for the period between 1 July 2018 and 30 June 2019.

Chart 03. Court workload statistics for the District Court for the period between 1 July 2018 and 30 June 2019.

	Criminal	Family	Youth	Civil
New Business	132,705	60,985	3,653	895
Disposals	131,516	59,472	3,703	712
Active Cases	34,434	25,946	918	695

The High Court considers a much smaller number of criminal matters, but these are more serious offences. In the same reporting period, there were 164 criminal trials held, and 1241 criminal appears were filed. There are a much larger number of civil cases, however. In the same reporting period, 2,139 new civil cases were filed in the High Court, 2,285 were disposed of, and 2,845 were still active.

The two higher appellate courts understandably see a much lower volume of cases. In the same reporting period, the Court of Appeal delivered 672 judgments, and the Supreme Court delivered 16 substantive judgments and 105 judgments for leave to appeal.

There are some concerns regarding the way court workload statistics are generated in New Zealand, and whether they can in fact answer research questions that target issues relating to access to justice[12].

2.3. Structure of the legal profession

In New Zealand, all practitioners are admitted to the High Court of New Zealand as barristers and solicitors. It is not possible to be admitted only as a barrister or only as a solicitor, nor on a limited basis in order to practice in only one area of law. A lawyer may, however, choose to practice only as a barrister (i.e. as a barrister sole).

Under New Zealand’s Lawyers and Conveyancers Act 2006, only people holding current practising certificates issued by the New Zealand Law Society (NZLS) and incorporated law firms may call themselves ‘lawyer’, ‘law practitioner’, ‘barrister’, ‘solicitor’, ‘counsel’, and other terms. Most lawyers, including those who practice only as solicitors, hold certificates as ‘barristers and solicitors’. This entitles them to act as solicitors and to appear in the courts.

New Zealand’s barristers and solicitors are not permitted to practise in partnership with members of other professions. They are not permitted to practice with lawyers holding only foreign qualifications, although some New Zealand law firms are associated with foreign law firms while remaining legally independent entities.

Law firms may be either partnerships constituted by way of partnership agreement, or “incorporated law firms”, which operate as limited liability companies. Barristers may also operate under the incorporated law firm structure.

A lawyer who wishes to operate as a sole practitioner to become a partner of a law firm or a director/shareholder of an incorporated law firm must be approved by the NZLS to “practice on their own account” as a barrister and solicitor. Applicants for approval must undertake training regarding business administration and the administration of lawyers’ trust accounts, and must satisfy the NZLS that they are a fit and proper person to practice on their own account[13].

2.3.1. Number of licensed practicing lawyers

The most recent survey of the New Zealand profession revealed that there are 12,923 registered lawyers (Female = 6661; Male = 6261), with the majority practicing in multi-lawyer firms (58%). The remaining lawyers are either in sole practice (4.8%); barristers sole (9.7%); or in-house lawyers (22 percent)[14].

Although female lawyers now form the majority of the profession, few are in senior positions. For example, only 34% of partner or directors in multi-lawyer firms are female, despite the workforce in these same firms having 63% female. Similarly, 77% of Queen’s Counsel are male and 21% female[15].

The ethnicity of the legal profession is also not reflective of New Zealand society. Only 30% of the legal profession do not identify as NZ European, and only 6% identify as Māori (Māori are approximately 16% of New Zealand’s population).

2.3.2. Affordability of legal fees

In New Zealand, legal services are typically charged by the billable hour. Three surveys have attempted to quantify the average rate of the billable hour, with the best estimate sitting between $250 and $350 per hour (range = $23 – $680 per hour)[16]. The price of legal fees has a direct impact on the accessibility of justice in New Zealand. In the 2006 legal needs national study (see section 10 for discussion), lawyers’ fees were identified by respondents as a significant contributing factor as to why people with a legal problem do not approach a lawyer for help. The legal aid scheme, however, does not provide a comprehensive solution (see section 5 for discussion). Many New Zealanders remain shut out of the legal system because they are unable to afford legal fees.

2.3.3. Legal representation in court

New Zealanders are permitted to bring proceedings before the court without legal representation. In some of the Tribunals (e.g. Disputes Tribunal) parties are barred from appearing with legal representation, whereas in other tribunals such as the Human Rights Review Tribunal and Employment Relations Authority, legal representation is allowed.

Lay advocates are also allowed in some New Zealand courts (e.g. Youth Court, Employment Court) and tribunals (e.g. Human Rights Review Tribunal). Lay advocates take an advocacy role to represent – and communicate – the interests of one of the parties[17].

McKenzie friends are increasingly appearing in New Zealand courts to assist parties that appear without legal counsel (one to three cases per year between 1992 and 2012; 22 cases in 2015)[18]. The scope of the role for McKenzie friends was recently considered in the High Court decision of Craig v Slater [2017] NZHC 874, where it was held that the McKenzie friend could sit beside the party; take notes; quietly make suggestions or give advice; propose questions and submissions to the party, who might repeat them; and in rare circumstance, with leave address the court. The role of McKenzie friends, or any support person, has not been codified in New Zealand statute. There is currently debate in New Zealand about whether the role and scope of McKenzie friends should be formalised, and address problematic questions about who can be a McKenzie friend (i.e. can a practicing lawyer) and whether the service should be regulated.

2.3.4. Representation by Paralegals/Legal Executives

The term “paralegal” is not used in New Zealand. Two legal support roles which require registration do exist: licensed conveyancers and legal executives.

“Conveyancing” is described by the New Zealand Society of Conveyancers as “the legal work required to transfer the ownership of real estate from one person or entity to another, which also includes the processing of subdivisions, leases and refinancing of mortgages”[19]. The Lawyers and Conveyancers Act 2006 provides the framework for the conveyancing profession in New Zealand, including setting out the qualifications and other attributes required, and conveyancers are subject to the Act’s disciplinary regime. The New Zealand Society of Conveyancers website lists 57 “conveyancing practitioners” and six “registered conveyancers” on its website[20]. While there may be conveyancers who have not identified themselves on the society’s website, it is clear that very few individuals have chosen this area of work.

Legal executives are not qualified as lawyers, but must hold the New Zealand Diploma in Legal Executive Studies or its predecessor qualification. Legal executives are skilled in particular aspects of law, generally specialising in residential and/or commercial conveyancing, estate administration and/or planning, trust administration and/or formation, and some aspects of litigation (but they may not appear in Court).  Legal executives may be registered with the New Zealand Institute of Legal Executives (NZILE), which differentiates their qualifications and skills, and gives them the power to witness signatures in some circumstances. As employees of law firms, legal executives may be subject to the disciplinary regime under the Lawyers and Conveyancers Act 2006 (see sections 11 and 14). The NZILE website states that there are over 1100 registered legal executives in New Zealand[21].

2.4. Career of Judges

The judiciary is the third branch of Government, separate to the Legislature and the Executive. The judiciary is responsible for interpreting and applying the law set by the Legislature, and for examining the actions of the Executive through the process of judicial review. Conversely, the Executive is involved in the selection of Judges, and both the Executive and the Legislature are involved in the dismissal of Judges in the event of misconduct.

The Governor-General – on recommendation from the Attorney-General – makes the majority of judicial appointments. Candidates must have held a practising certificate as a barrister or solicitor for at least seven years. They can respond to a request for expression of interest, be nominated, or be invited to apply. To be successful, the candidate:

… must be of good character, have a sound knowledge of the law and of its practice, and have a real sense of what justice means and requires in present-day New Zealand. They must have the discipline, capacity and insight to act impartially, independently and fairly.[22]

Extensive consultation is carried out at various stages in the appointment process, but this is carried out on a confidential basis. The Attorney-General must act independently of party-political considerations.

The NZLS provided a snapshot of the judiciary in 2019[23]. In total, there were 237 permanent members of the judiciary, with 65% being male. In the Supreme Court, however, the bench consists of three women and three men. The 2013 Census data – the only publicly available data – showed that 93% of judges reported being of European ethnicity, and 10.8% reported being of Māori ethnicity. In response to requests for ethnicity data: “The office of the Chief District Court Judge stated at 1 March 2019, 19 District Court judges were Māori, 3 were Pasifika, and 2 were Indian. It noted that some judges identify with more than one ethnic group. The Māori Land Court advised that of the 11 permanent and two acting members of the Court, 11 identified with and had Māori ancestry.”[24]

A Judge’s tenure continues until either their resignation, their retirement, or their removal from office. Judicial retirement is required when a judge turns 70. After that age, a judge can return to the bench on acting warrants which are granted on two-year terms until the judge is 75 (Senior Courts Act 2016, ss 116 and 133).

2.5. Career of Prosecutors

2.5.1. Types of Prosecution Services

The Solicitor General, who is also the Chief Executive Office of the Crown Law Office, is responsible for the general oversight of the public prosecution of all criminal offences in New Zealand. In practice, prosecutors from the Criminal Team in the Crown Law Office only carry out criminal appeals in the Court of Appeal and Supreme Court. Crown Solicitors are responsible, pursuant to a Crown warrant, for prosecuting serious crime on behalf of the Crown. Crown Solicitors are lawyers in private practice firms, paid by Crown Law in respect of their Crown prosecution work. There are currently 17 Crown Solicitors warrants which are held by partners in private law firms throughout New Zealand. Crown Solicitors can delegate the legal work to other employees in their firm, who are classified as either principal, senior, intermediate, or junior prosecutors.

The Police Prosecution Service is embedded into New Zealand Police. It is responsible for carrying out criminal, traffic, youth, and coronial prosecutions (except where the proceeding becomes a Crown Prosecution). There are 212 police prosecutors who service over 60 District Courts throughout New Zealand. Prosecutors are also embedded in various Government agencies, and are responsible for carrying out prosecutions under legislation administered by the agency – this is discussed in further detail at 3.1.2.

2.5.2. Recruitment

Permanent positions for prosecutors are publicly advertised using both general online situations vacant platforms as well as the New Zealand Government’s Jobs Online platform. Fixed-term positions for prosecutors might only be advertised internally (e.g. through the Government Legal Network).

2.5.3. Appointment Period

Prosecutors who are employed at Crown Law or other Government agencies are subject to New Zealand employment law. There is no compulsory retirement age.

Crown Solicitors are appointed by a warrant. A Crown Solicitor’s warrant is held at pleasure, and can be revoked. The Solicitor-General carries out periodic reviews to ensure high prosecutorial standards are achieved and maintained. A Crown Solicitor can also resign the warrant by Letter to the Solicitor-General. Crown Solicitors are required to give 90 days’ notice of resignation, unless exceptional circumstances apply (e.g. they are being appointed to the judiciary). In practice, there is a long tradition of the Crown Warrant being awarded to successive partners in the same firm. For example, in New Zealand’s capital city, Wellington, the Crown Warrant has been held by the same firm since 1936.

2.6. Availability of Legal Services

As in many jurisdictions, legal services are not readily available to all New Zealanders. One particular concern is the shortage of lawyers offering civil legal aid services. This is recognised across the profession, but to date, no solution has been achieved. The most significant recent recognition of this issue came from the swearing in speech of New Zealand’s new Chief Justice, the Right Honourable Dame Helen Winkelmann, on 14 March 2019:

Without knowledge of the law many do not know they have a problem with which the law can help them. The cost of legal representation is so great that it is only the well to do who can afford a lawyer to represent them in court. There are few lawyers practising civil legal aid, and fewer still in areas of need. For those who decide to go it alone and attempt to represent themselves, there is still the considerable cost barrier of court fees, and the difficulty of court procedure.

Access to affordable legal services remains a problem in New Zealand, and is addressed throughout this report.

3. PROCESS AND PROCEEDINGS: OVERVIEW 

3.1. Criminal procedure

3.1.1. Criminal investigations

The steps of investigations are set out in Chart 04 (below). The authority responsible for criminal investigations is the New Zealand Police. New Zealand is served by one national police force which has 12 districts. The Police have eight functions including law enforcement.

The New Zealand Bill of Rights Act 1990 (the NZBORA) sets out a person’s basic rights and freedoms that must be acknowledged by any person or body carrying out a public function, power, or duty. Section 22 of the NZBORA states that “everyone has the right not to be arbitrarily arrested or detained”. Although the NZBORA is not an entrenched constitutional document, other Acts cannot act contrary to a person’s rights under it. This means that police cannot detain any person if: they do not have a legislative power; it is unreasonable or unnecessary; or detention has continued for an unnecessarily long time.

The police have various powers to arrest a person. Arrest warrants may be issued by a court (e.g. for breach of bail condition or for non-appearance at a court hearing) and the police can then execute that warrant and arrest the person. However, in New Zealand, most arrests happen without a warrant. A person can be arrested if they are found committing an act that is a punishable offence (Crimes Act 1961, s 315(2)(a); Summary Offences Act 1981, s 39(2)), or the police have “good cause to suspect” that a person committed a punishable offence (Crimes Act 1961, s 315(2)(b); Summary Offences Act 1981, s 39(1)). Police officers are required to consider a wide variety of criteria in determining whether or not to arrest without warrant. “Good cause” does not need to be evidence which would be legally admissible in court; just a basis for reasonable suspicion. The police may have gained good cause to suspect from a number of sources including their own observations, statements from witnesses, admissions from the offender, examination of the scene, or forensic evidence.

Once a person is arrested, they must be informed of their rights under s 23 of the NZBORA. There is no prescribed wording, but the person must be told the reason why they are being detained, of their right to remain silent, and of their right to consult and instruct a lawyer without delay. The arrested person must then be promptly charged and either brought before a court or released (being released includes: released on police bail under s 21 of the Bail Act 2000, released with a pre-charge warning, or released without charge). The use of the word ‘prompt’ acknowledges that some time will pass between charge and court appearance, but an officer cannot delay bringing an arrested person before a judge in order to facilitate a police investigation.[1] A lawful arrest can become an unlawful arbitrary detention because of the circumstances and length of detention.

A person who has committed a punishable act may alternatively be brought before the court by way of a summons (i.e. without loss of liberty through arrest). Under this method, a summons is served on the person, which explains the nature and particulars of the charge they face. The summons will also include the date which the person must appear in court, which must be no later than two months after the summons is served (Criminal Procedure Act 2011, ss 28-30).

Section 25 of the Criminal Procedure Act 2011 sets out the procedural time limits for investigating a crime by way of setting time limits for commencing prosecutions. A charging document, which initiates criminal proceedings in court and effectively concludes the investigation, must be filed within certain time periods for different types of offences. Offences in New Zealand are classified as Category One (lower-level offending) through to Category Four (serious offending). There is no time limit for filing a charging document alleging the commission of a Category Four offence, but there are limits for the other categories, which will depend on the maximum penalty. For example, where the maximum penalty is imprisonment for three years or less, the charging document must be filed within five years after the date on which the offence was committed. Time limits may also be set by the particular statutes which govern certain offences.

Chart 04. Main steps of the criminal investigation phase

3.1.2. Criminal prosecution proceedings

The Criminal Procedure Act 2011 governs the procedure for criminal cases, which begins with the filing of a charging document with the Court. Section 15 of the Act states that “any person may commence a [criminal] proceeding” by filing a charging document in the District Court. Private prosecutions are allowed in New Zealand, but are subject to independent judicial oversight (for example, see Turner v South Taranaki District Council [2015] NZHC 1869) and in practice are rarely brought. The majority of prosecutions are initiated by the Police Prosecution Service, who will file the charging document. The Police Prosecution Service conduct the proceedings for most Category 1-3 offences and traffic offences. Crown Solicitors, who are appointed by the Governor-General, assume responsibility for more serious offences (e.g. Category 4 offences).

Quasi-criminal/regulatory offences, for example breaches of workplace safety requirements or environmental legislation, or breaches of council bylaws, may be prosecuted by in-house prosecution teams of lawyers employed by the government agencies that administer the particular legislation. Crown Solicitor’s firms or private law firms may also prosecute these matters on instructions from the relevant agencies. For example, WorkSafe New Zealand is a branch of the Ministry of Business, Innovation and Employment (MBIE), which investigates and prosecutes breaches of the Health and Safety in Employment Act 2015. Prosecutions of offences under this Act are conducted by lawyers employed by WorkSafe. On occasion where the matter is particularly complex WorkSafe may instruct a lawyer in private practice, a barrister, or a crown solicitor to act.

Prosecutors have discretion to withdraw a charging document at any time up to a finding of guilt/entry of a guilty plea. The Police Adult Diversion Scheme applies to non-serious offences where the prosecutor considers that it would be appropriate to deal with the charges without going to court. The scheme provides scope for the prosecutor to punish the offender without the offender receiving a conviction. The offender must accept full responsibility for the offence, and agree to the terms of the diversion, e.g. payment of money to a charity or to the victim to recognise property damage or emotional harm, apology to victim, attending addiction treatment or other therapeutic programmes.

Other ways of informally resolving criminal cases include a formal warning system and plea negotiations[2]. There is pressure on prosecutors to reach plea bargains as a way to avoid trial and therefore save money and suggestions that defence lawyers are incentivised by low legal aid payments to promote guilty pleas[3].

Once the defendant has been charged, they appear in District Court for the first appearance hearing. At that hearing, bail will be considered under the Bail Act 2000. For any offences where the maximum punishment is less than three years imprisonment (with some exceptions), the defendant is bailable as of right. Sections 7 and 8 of the Bail Act 2000 provides that defendants who are not bailable as of right must be released on reasonable terms and conditions, unless the court is satisfied that there is just cause for continued detention (e.g. a risk that the defendant may fail to appear in court). The court will also consider any application for name suppression. The defendant will be given information about legal aid (see section 5 of this report) and can instruct counsel if they have not already done so.

At the first appearance, “initial disclosure” is provided to the defendant by the prosecutor. “Initial disclosure” is documents that, inter alia, fairly inform the defendant of the fact on which it is alleged that an offence has been committed and the facts alleged against the defendant (Criminal Disclosure Act 2008, s 12).

Defendants may be ready to enter a plea at their second appearance, depending on whether they have had sufficient opportunity to consider initial disclosure. For certain offences, the defendant will also have to elect whether to proceed to a judge-alone trial or a jury trial.

If the defendant pleads not guilty, the case proceeds to trial. The majority of criminal trials take place in the District Court. Serious offences are transferred to the High Court. The location of the hearing is usually determined by where the charge was filed, but a hearing may be transferred to another location if necessary.

The procedure and timelines that follow the second appearance hearing will depend on the following factors: the category of offence, the court that charge will be heard in, and whether the trial will be judge-alone or a jury trial. Chart 05 from the Ministry of Justice outlines this process.

3.1.3. Absentia

Defendants are generally entitled to be present for any hearing in court that is related to the charge (Criminal Procedure Act 2011, s 117(1)). This does not have to be physical presence. There is now a presumption towards audio-visual links for all criminal procedural matters when the defendant is in custody and audio-visual links can also be used during sentencing (see s 8 Court (Remote Participation) Act 2010). New Zealand has relatively few prisons spread across its two main islands and audio-visual court appearances reduces the need for prisoner transportation.

This right to be present for proceedings is not absolute. Section 117(2) of the Criminal Procedure Act 2011 allows for the defendant to be removed from the proceedings if they are disruptive and risk prejudicing themselves to the jury. If possible, the Judge will try to facilitate involvement in the proceedings using other methods (e.g. audio-visual links). In certain proceedings, a defendant can also ask for leave from the judge to be absent (see s 117(3) of the Criminal Procedure Act 2011). When defendants are removed from the courtroom, the trial proceeds via the defendant’s legal counsel. In the very rare cases where section 117 applies to a self-represented defendant the trial carries on with amicus curiae appointed to assist the court to ensure the defendant receives a fair trial (see R v Tully, CRI-2014-009-008232, 24 February 2016 (HC)).

Chart 05. Main steps of criminal prosecution proceedings

Source: Ministry of Justice: <www.justice.govt.nz/assets/Documents/Publications/MOJ0100.3C-At-a-glance-factsheet-AUG19.pdf>

3.1.4. Consistency with the Rule of Law & Due Process

New Zealand highly values the rule of law and respects due process. The World Justice Project Rule of Law Index (2019) ranks New Zealand as number 8 (score of 0.82) out of 126 countries for adherence to the rule of law. When looking more specifically at the criminal justice system, New Zealand is ranked number 13 (score of 0.72) out of 126 countries.

New Zealand is a signatory to the International Covenant on Civil and Political Rights, and has made a commitment to uphold the Universal Declaration of Human Rights and support the efforts of the Office of the United Nations High Commissioner for Human Rights.

In the 2014 Universal Periodic Review by the UN Human Rights Council, New Zealand was praised for its human rights record and has a reputation as a comparatively fair and equal society. New Zealand was criticised, however, for the over-representation of Māori and Pasifika in the criminal justice system. It was recommended that New Zealand establish national strategies that will address structural discrimination in the justice system. New Zealand has implemented a number of actions which are addressed in the Human Rights Council’s 2019 National Report[4]. The 2019 Report recognises that while some positive initiatives have been implemented, and advances made, work to address iniquities faced by Māori and Pasifika needs to be ongoing.

3.2. Civil Procedure

3.2.1. Jurisdiction

Ordinary civil cases in New Zealand are heard in either the High Court or the District Court at first instance. The High Court’s jurisdiction is largely conferred by statute, but it also has inherent common law jurisdiction (the only New Zealand court with inherent jurisdiction). In its civil jurisdiction, the District Court may hear claims up to a value of $300,000. Disputes of less than $30,000 may be heard in the Disputes Tribunal rather than the District Court. Pursuant to section 78 of the District Court Act 2016, the District Court does not have jurisdiction to hear disputes regarding the recovery of land (with some exceptions – see s 79 District Court Act 2016), proceedings relating to Crown prerogatives, or the interpretation or validity of wills. Applications for judicial review are limited to the High Court (see s 8 of the Judicial Review Procedure Act 2016).

Specialist jurisdictions – including the Family Court, the Environment Court, and the Employment Court – hear cases concerning specific legislation, under which those courts are constituted. For example, the Environment Court is constituted under the Resource Management Amendment Act 1996, and the Employment Court and its predecessors have their foundations in the Industrial Conciliation and Arbitration Act 1894 and are now governed by the Employment Relations Act 2000.

Appeals from decisions of the District Court are heard in the High Court, and then may be appealed further to the Court of Appeal or Supreme Court. High Court appeals are heard by the Court of Appeal and the Supreme Court. An appellant must apply for leave to appeal to an appeal court of second instance.

3.2.2. Procedural rules

The High Court’s practice and procedure is regulated by the High Court Rules 2016 (the High Court Rules), pursuant to s 146 of the Senior Courts Act 2016. The High Court Rules are subject to the Senior Courts Act 2016 and the Evidence Act 2006 (and other statutes and regulations where applicable). High Court Rule 1.2 states the Rules’ objective: “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”. This, and the Court’s inherent jurisdiction, allows for flexibility of procedure where that is necessary. The District Court Rules 2014 (the District Court Rules) govern procedure for the District Court. They allow for the High Court Rules to be followed in circumstances where there is no other set procedure.

The High Court Rules and the District Court Rules, and those of the Supreme Court and Court of Appeal, are written by the Rules Committee, which is a statutory body established by s 51B of the Judicature Act 1908 (now repealed) and its replacement statute, the Senior Courts Act 2016 (see s 155 of that Act). The Rules Committee comprises the Chief Justice, the Chief High Court Judge and the Chief District Court Judge, the Attorney-General, the Solicitor-General, the Chief Executive of the Department for Courts, two High Court Judges, one District Court Judge, and two lawyers. The Committee relies heavily on input from judges, lawyers and other interested people. To discharge its rule-making functions, the Committee may also undertake consultation, publicise proposed and enacted rule changes and assist with educating about new rules.

3.2.3. Trial procedure

Civil matters are determined by the fact-finder applying the civil standard of proof where facts are proved on the balance of probabilities, i.e shown as more probable than not. The civil standard of proof is not defined in legislation. Z v Dental Complaints Assessment Committee [2008] NZSC 55 includes an analysis of the law regarding the civil standard of proof in New Zealand at [94] – [112] with the Supreme Court concluding: “there is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them” (at [112]).

Civil trials in the High Court are heard before a judge alone unless they concern defamation, false imprisonment, or malicious prosecution, in which case any party to the proceeding may require it be tried by a High Court Judge with a jury (High Court Rule 16). All matters in the District Court other than those governed by the Criminal Procedure Act 2011 are heard before a Judge alone, who determines all questions of fact and law (District Court Act 2016, s 108).

The process of a civil trial is summarized in Chart 08 (below). Civil proceedings are commenced by filing a statement of claim in the relevant registry of the Court.  The proceedings are served on the defendant, accompanied by ‘initial disclosure’, which in the civil context are the key documents the plaintiff relies on to establish their claim (initial disclosure documents are not filed in the Court). Once the defendant has filed their statement of defence, the matter is set down for an initial case management conference before a judge. Court rules set out the issues to be agreed/ordered at the conference, and it is expected that the parties will have conferred and, where possible, agreed to these issues prior to the conference. Evidence is not heard at case management conferences. The conferences are often heard by way of teleconference which can result in time and cost savings, as lawyers do not have to travel to Court. Represented litigants are not required to attend case management conferences.

If the parties can agree on issues to be determined at a case management conference, the judge may take a relatively passive role confined to formalising orders required. If the parties cannot agree on issues, the judge will hear submissions from counsel and make appropriate orders. At any case management conference the judge may give directions to secure the “just, speedy and inexpensive determination of the proceedings” (High Court Rule 7.2(3)).

Once the parties have exchanged discovery documents and any interlocutory matters have been dealt with, the matter is allocated a hearing date. If further case management conferences are required, they may be held at any time either on the judge’s initiative or on the application of one or more parties (High Court Rule 7.2).

It is common practice for evidence in civil proceedings to be given by way of written brief, which are exchanged between the parties prior to the hearing. The witness then reads their brief in Court, and is cross-examined by the other party’s lawyer. Judges may question witnesses directly. A judge may adjourn a matter for further evidence to be filed, if that becomes necessary.

3.2.4. Shortened trial procedure

The rules of procedure allow for litigants to apply for summary judgment in cases where either the defendant has no defence, or the plaintiff’s cause of action cannot succeed. Summary judgment proceedings are heard on an interlocutory basis, with evidence given by affidavit. If the application for summary judgment is unsuccessful, then the matter may be set down on the ordinary track to proceed to a full trial. Summary judgment proceedings can be dealt with more efficiently (in terms of time and money) than other proceedings.

In the District Court, civil proceedings are allocated either a “short trial”, a “simplified trial” or a “full trial” when they are filed. These trial allocations may be changed at any point. District Court Rule 10.1(3) provides that the short trial is intended for claims where the court considers that 1 or more of the following apply:

(a) the case can come to a hearing quickly;

(b) the issues are relatively uncomplicated or a modest amount is at stake;

(c) the trial time is not likely to exceed a day.

The features of a short trial are summarised in Rule 10.4, presented in Chart 06.

Chart 06. District Court Rule 10.4: Features of short trial

Pursuant to District Court Rule 10.1(4), the simplified trial is intended for claims where the court considers that 1 or more of the following apply:

(a) the duration of the hearing is not likely to exceed 3 days;

(b) there is some complexity raised by the issues;

(c) the amount of money involved is more than modest;

(d) 1 or more expert witnesses will be giving evidence.

The features of a simplified trial are set out in Rule 10.7, presented in Chart 07.

Chart 07. District Court Rule 10.7: Features of simplified trial

Chart 08. Main steps of the first instance civil trial procedure

3.2.5. Unrepresented litigants

Litigants are entitled to appear in New Zealand’s courts without representation by a lawyer. The Ministry of Justice website provides some basic information for litigants in person[5]. Where unrepresented litigants appear in civil proceedings, judges may (or may not) offer them limited assistance by explaining procedural steps, or by ignoring defects in the form of documents. At all times, a judge must be impartial, so any assistance given to a litigant in person will be limited.

3.2.6. Management of urgent matters

If a matter requires urgent determination, because, for example, there is immediate risk of dissipation or destruction of property, or damage to a person’s interests (for example imminent publication of a defamatory statement or breach of copyright) the rules of procedure allow for interlocutory injunctions to be sought (see High Court Rules 7.53-7.58 and District Court Rules 7.45-7.50). An interlocutory injunction will restrain a party from acting in a particular way (or compel a party to do something) until such time as the plaintiff’s claim can be heard and determined at a full trial. Applications for interlocutory injunctions can be made without notice (ex parte) pursuant to High Court Rule 7.23 and District Court Rule 7.16 if the applicant can show that proceeding on notice will, inter alia, cause undue delay or prejudice. High Court Rule 7.54 and District Court Rule 7.46 require an applicant for an interlocutory injunction to file a signed undertaking that the applicant will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunction.

If parties consider a civil matter requires swift disposition but the test discussed above cannot be met, they can raise this at the first case management conference. Requests to have a matter heard quickly can sometimes be accommodated if the parties are able to travel to a different Court location, or can otherwise be flexible.

Other courts may also have provisions in their relevant legislation that allow for urgent determinations. One such court where urgent matters are frequently heard is the Family Court, where orders (usually temporary or interim) can be made on a without notice basis; that is, without the other party being heard. These urgent applications should only be made in emergency situations where the applicant can show that the time needed to let the other party respond could lead to serious injury, undue hardship, a risk to personal safety (of the applicant or their child), or child being removed from New Zealand.

3.2.7. Encouraging settlement during formal proceedings

In the District Court, unless a short trial is to be held, cases must be referred to a Judicial Settlement Conference (JSC) prior to being set down for trial. The purpose of a JSC is to give the parties to the proceeding an opportunity to negotiate a settlement of the claim or any issue. A JSC is convened by a District Court Judge, and its proceedings are confidential to the parties and their legal advisers. A Judge who convenes a JSC may assist the parties in their negotiations, but that Judge must not preside at the trial (if any eventuates) unless all parties taking part in the conference consent, or the only matter for resolution at the hearing is a question of law. At least ten working days prior to the JSC, the parties must file and serve on the other parties copies of their “will say” statements which set out the evidence the parties rely on and a memorandum identifying the issues and any settlement negotiations. These documents are not admissible at any trial of the proceeding. If the Judge assisting the parties at a JSC is satisfied that the parties are unable to settle the claim or issue, the Judge must, as soon as practicable, indicate that he or she has formed that view, and adjourn the proceeding to a second case management conference.

In the High Court, JSCs are not compulsory. There is informal encouragement to settle through the use of negotiation or mediation and judge-led settlement is available in limited cases[6]. At the first case management conference the question of whether a matter is suited to private mediation will also have been discussed. High Court Rule 7.79(1) provides that a Judge may:

… at any time before the hearing of a proceeding, convene a conference of the parties in chambers for the purpose of negotiating for a settlement of the proceeding or of any issue, and may assist in those negotiations.

New Zealand also has examples of innovative procedure to both maintain a separate judicial process while facilitating settlement. This can be seen in the process developed in response to the Canterbury earthquake sequence (2010-2011), which caused significant property damage giving rise to many claims (the earthquakes also caused loss of life but claims for personal injury are barred by statute, see 3.4 below). A procedure was introduced streamline the judicial processing of these cases while creating transparency about the claims in order to facilitate settlement[7].

We are not aware of any empirical research into the fairness (or otherwise) of JSCs or other incentives to settle within the court process. JSCs are private to the parties pursuant to the provisions of the court rules. Anecdotal evidence suggests that settling matters prior to trial results in reduced costs for the parties but that power imbalances may also create unfair settlements in some circumstances.

3.2.8. Consistency with the Rule of Law

New Zealand highly values the rule of law and respects due process. The World Justice Project Rule of Law Index (2019) ranks New Zealand as number 8 (score of 0.82) out of 126 countries for adherence to the rule of law, and 11 out of 126 for civil justice.

The index scores New Zealand at 0.75 for “no unreasonable delay”.  Delay in the civil high court system has been the subject of research conducted by the University of Otago Legal Issues Centre[8]. This was the first major New Zealand study to investigate the pace of High Court civil cases and to examine if and when delays might occur. The study report concluded that while delays are a key obstacle in accessing justice, there are varied reasons as to why delays occur, and how they impact on participants in the justice system – not all delays are negative. The study also concluded that further data collection and analysis is required before reforms addressing delay can be implemented.

3.3. Alternative Dispute Resolution

New Zealand’s use of ADR is part of the wider trend in common law countries, with New Zealand following closely the developments in the United States and Australia from the 1980s onwards. The impetus for ADR was driven by the same factors in other common law countries: “Court overload, high litigation costs, social changes and subsequent challenges to traditional approaches of resolving disputes led to calls for mediation, conciliation and negotiation to supplement, and even replace, adversarial litigation”[9]. Inclusion of conciliation and mediation was mostly state-led from the 1980s with the inclusion of over 30 statutory references through the 1980s and 1990s[10]. There are now references to ADR processes across a wide range of New Zealand legislation. As commentators summarised:

The growing awareness of ADR is apparent from New Zealand’s legislative history. … By way of some examples, the Local Government Act 2002 at s 16 sets out a process for mediation if significant new activities are proposed by the regional council and agreement is not reached with the affected territorial authorities. The Weathertight Homes Resolution Services Act 2002 sets out a prescriptive process for the mediation and adjudication of claims (at ss 13 to 55). The Legislative Advisory Committee lists over 40 other examples in a range of areas including Maori fisheries, environmental law, Maori land law, family law and many others.[11]

Given the large number of government ADR schemes, there is now a Government Centre for Dispute Resolution which is tasked with developing best practice dispute resolution guidance, as well as advising on design, development or improvement of schemes.

Mediation in employment law is “quasi-mandatory” as both the Employment Relations Authority (the body that hears first instance employment disputes) and the Employment Court have a duty to direct parties to mediation (Employment Relations Act, ss 159 and 188)[12].

Parents and guardians who take disputes about children to the Family Court are expected to have attempted to resolve the dispute themselves with the help of the Family Dispute Resolution mediation process (FDR), with a hearing in front of a judge being seen as a resort only where alternative dispute resolution (ADR) is impossible (Care of Children Act 2001 s46E, Family Dispute Resolution Act 2013). This mediation service is provided by registered, private parties. If a person applies to the court regarding a dispute about children, they must usually also have attended a “Parenting Through Separation” course. The course comprises four one-hour long sessions and is provided for free by the Family Court. Until March 2014, the Family Court provided free counselling and mediation services in all cases. Those services were replaced by the FDR process, which is offered free to those whose income is below a certain threshold.

There has been some criticism of the FDR process. An independent panel was appointed to examine the 2014 family justice reforms, and the final report was published in May 2019[13]. In relation to FDR the panel found that while around 84% of completed mediations since 2014 had resolved some or all issues 40% of people had refused to engage with FDR “because they simply did not want to do FDR”[14].

New Zealand has also established specific ADR schemes for particular purposes. For example, in an effort to resolve outstanding claims arising from the Canterbury earthquake sequence, the government established the Greater Christchurch Claims Resolution Service. It provides “free facilitation and determination services and access to engineering, legal and well-being support” tailored to individual homeowner needs[15]. Homeowners can still access the courts but this service is established to settle claims without the need to resort to the courts.

Outside these contexts, ADR processes are often triggered by the inclusion of dispute resolution provisions in contracts. These often appear as tiered processes, for example direct negotiation followed by mediation followed by arbitration. Mediators and arbitrators appointed as a result of these contractual terms may be via government schemes or by private arrangement. As most ADR schemes are mediation based, there are no appeal rights (given decisions are by agreement, not adjudication).

Commercial entities contract with government agencies to provide ADR services. One example is FairWay Dispute Resolution Limited (FairWay). FairWay was initially conceived as an arm of the Accident Compensation Corporation (see section 3.4 below) before becoming an independently owned company that provides dispute resolution services across a wide range of public and private entities. FairWay’s website states that it employs over 100 staff and contracts with over 110 specialist reviewers and dispute resolution practitioners, and handles over 16,000 cases per year[16].

3.4. Simplification of law and by-passing legal processes

A major feature of the New Zealand legal system is its no-fault accident compensation scheme. Accident Compensation Corporation (ACC) provides insurance for all personal injury and came into being in 1972. Taxpayers, employers, self-employed people and motor vehicle owners to pay a levy to ACC to fund the scheme[17]. Court actions cannot be brought to recover for loss for personal injury. This removes a large portion of cases that might otherwise be litigated in New Zealand courts or subject to alternative dispute resolution. ACC is not without its critics but it is thought to be cheaper and more efficient than litigating for personal injury: “An independent evaluation by PriceWaterhouseCoopers in 2007 found that the ACC scheme achieved a level of benefits and performance comparable with Australia and other countries, at a lower cost”[18].

New Zealand also has a no-fault divorce regime. The Family Proceedings Act 1980 (which came into force in 1981) removed the requirement to prove fault before a dissolution order was issued. The requirement for a hearing in front of a judge to gain a dissolution order was removed in 1990.

Claims under $30,000 are heard in the Disputes Tribunal which has an informal procedure (Disputes Tribunal Act 1988). Tribunal referees are not required to be legally qualified (although many are) and in the first instance try to bring the parties to a mutually agreed decision (Disputes Tribunal Act, s 18). If the parties cannot agree on an outcome, the referee will make a decision. The dispute is to be determined according to the substantial merits and justice of the case and in doing so the Tribunal is to have regard to the law, but is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities (Disputes Tribunal Act, s 18).

There are very limited appeal rights from decisions of the Disputes Tribunal. There is a review process for ACC decisions but this has been the subject of criticism[19].

4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL

4.1. Statutory commitment to access to justice, equal access to court and fair trial

New Zealand does not have a written constitution that expressly provides for equal access to justice, but this right is protected by various provisions. For example, ss 25 and 27 of the NZBORA affirm that every person has the right to minimum standards of criminal procedure, which includes the right a fair hearing without delay, as well the right to natural justice, judicial review, and to take or defence civil proceedings involving the Crown. Similarly, the purpose of the courts’ procedural rules is to facilitate “the just, speedy, and inexpensive dispatch of the business” of the court as well as “the administration of justice” (Senior Courts Act 2016, s 145).

New Zealand is also a signatory to a number of international treaties that protect the right to justice and fair trial; including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the United Nations Convention on the Rights of Persons with Disabilities.

4.2. Political commitment to access to justice

There is ostensibly political will by the current Government (who has governed since 26 October 2017) to improve access to justice. For example, the Attorney-General, the Hon David Parker (who is both a political and legal officer), recently commented on his concerns in the District Court:

The civil jurisdiction of the District Court has decreased to, largely, default and summary judgments. The reasons are complex but changes to District Court rules and processes are expected to be needed to reinvigorate this important function to enable more New Zealanders to cost-effectively resolve their disputes.[1]

The Ministry of Justice Statement of Intent 2018 to 2023 sets out the strategic intentions that will enable delivery of “people-centred services to provide justice for all”[2]. There are discrete projects underway to drive access to justice policy. For example, in May 2018 the Government pledged to increase spending on Community Law Centres by $2.2 million, a 20 per cent increase, to help stabilise funding and current service levels. This was followed a year later by an announcement locking in further funding of $8.72 million over the next four years. Other access to justice related initiatives from recent Government budgets include increasing the capacity of the Human Rights Review Tribunal by appointing deputy chairpersons to hear and determine more claims, and increasing spending on Youth Court capacity in response to changes in the youth justice system which allow 17 year olds to be dealt with there, instead of in adult courts. The Attorney-General has also called on the legal profession to help improve access by increasing the quantity of pro bono legal services provided to the civil market. To incentivise pro bono legal services, a lawyer’s commitment to improving access to justice is now a criterion for being selected as a Queen’s Counsel[3].

In 2019 the Ministry of Justice hosted a three-day criminal justice summit which was attended by more than 600 people from a diverse range of backgrounds. Victims, community advocates and people who have offended participated in a conversation alongside members of the judiciary, public sector officials and Members of Parliament. The structure of the summit was focused on co-design and partnership, with those who attended expected to participate and take ownership of a proposal to reform the criminal justice system. The summit was the “start of the conversation about what New Zealanders want their criminal justice system to look like”[4]. Further consultation will be undertaken by Te Uepū Hāpai I te Ora – The Safe and Effective Justice Advisory Group, which will provide advice to the Minister of Justice about a direction for the criminal justice system[5]. In March 2020, the Ministry of Justice hosted a one day civil justice summit, inviting key stakeholders from across the system and a report from that meeting will be published later in 2020.

4.3. Government oversight of access to justice

The Ministry of Justice is the Crown’s lead agency in the justice sector. It is the only agency in New Zealand’s public sector that works across all three branches of government and it is responsible for administering the court system, the legal aid system, and the Public Defenders Service (PDS). It also collects and enforces fines and civil debts, negotiates the settlement of historical Treaty of Waitangi claims and provides policy advice on matters related to justice, the administration of the law, and Crown/Māori relations. Information about the Ministry can be found on its website at <www.justice.govt.nz/about/about-us>. The Ministry of Business, Innovation and Employment also has a justice portfolio, in that it oversees a large number of alternative dispute resolution mechanisms and is home to the Government Centre for Dispute Resolution (discussed further at 9.4).

There are various institutional practices that are designed to ensure that fundamental human rights are protected, including access to the courts. Mechanisms to review law and policy for consistency with human rights include:

(a) The Regulations Review Committee, which ensures that regulations are made lawfully;
(b) The Cabinet Office Manual, which requires any new law and policy to be assessed according to human rights;
(c) The Ministry of Justice and Crown Law Office, which have an obligation to review all draft legislation to ensure that it is consistent with the NZBORA. Section 7 of the NZBORA requires the Attorney-General to report any Bill that is inconsistent with any of the rights and freedoms contained in the Act to Parliament (this is limited to the introductory Bill, however, and not subsequent amendments).

4.4. Equal access to justice for minorities, immigrants, indigenous peoples or other groups

International bodies have criticized New Zealand’s protection of legal rights for those in marginalised groups. These groups include: disabled people; Māori and Pacific peoples; migrant communities; and children and young people. There is also concern about the disproportionate number of Māori in the prison system (see section 12.2 below).

4.5. Access to justice subject of public or scholarly debates

Access to justice is increasingly the subject of scholarly debate. The judiciary – who are frequently faced with the deficiencies in the justice system – have ignited debate through a series of confronting judicial speeches. In 2014, the then Chief High Court Judge, Justice Winkelmann, illustrated the growing justice gap in her speech titled “Access to Justice – Who Needs Lawyers?”, given at the 2014 New Zealand Law Foundation Ethel Benjamin Commemorative Address. Justice Winkelmann stated that access to civil justice is a significant challenge facing New Zealand. Reminding the profession that civil justice is a public good that is necessary uphold the rule of law, she stated that access must be prioritized and facilitated through innovative solutions[6]. Similar concerns about access to justice have since been echoed by the present Chief High Court Judge, Justice Venning[7], the Court of Appeal Justice Kós[8], and retired judge Ron Young[9].

The University of Otago Legal Issues Centre has been a leader in scholarly debate on civil access to justice[10]. The debate on civil justice has also reached the mainstream, for example a feature article in the national Sunday newspaper[11]. Access to justice in the criminal sphere is also a regular topic of debate in the media, with the national summit generating a lot of press coverage[12]. It is also the topic of scholarly debate with contributions from scholars in law, sociology, and criminology.

5. LEGAL AID SYSTEM

5.1. History of legal aid

The English procedure of in forma pauperis was introduced with colonisation in the 19^th century but this was replaced by criminal legal aid in 1912 and civil legal aid in 1969. The civil and criminal schemes were merged by the Legal Services Act 1991. This Act had a partnership model with management of the scheme kept at arm’s length so that decisions about granting legal aid were, and were seen to be, free from political influence. The seeds were sown for significant changes to criminal legal aid with the first pilot of the Public Defenders Service (PDS) in 2004.

The cost of legal aid exploded between 2004 and 2010, climbing from approximately $80 million to approximately $152 million. A major review of the legal aid system was undertaken in 2009, resulting in significant changes to the administration of the legal aid system: Margaret Bazley Transforming the Legal Aid System: Final Report and Recommendations (Ministry of Justice, November 2009 (“Bazley Report”). The report was highly critical finding that a “small but significant proportion of lawyers [were] providing very poor services” and some were corrupt. A raft of changes were recommended including greater focus on customer service, greater control of lawyer standards, establishing more public defenders offices, as well as bulk funding other practices to provide low cost services. It was also critical of the Crown entity responsible for administering legal aid, the Legal Services Agency, and recommended it become part of the Ministry of Justice. Many of these recommendations were accepted and enacted via the Legal Services Act 2011, which currently governs the legal aid scheme. The changes aimed to significantly reduce the legal aid spend by introducing fixed fees for lawyer providers, user-charges for applicants, interest on legal aid debt, and strict eligibility criteria. Cuts were also achieved through expanding PDS, which now has over 150 criminal defence lawyers working from 10 offices around New Zealand.

During financial year 2018/19, the Ministry of Justice undertook a review of legal aid policy settings. The feedback was critical about the low rates of provider remuneration, low eligibility thresholds for civil and family legal aid, and the administrative burden on legal aid providers. No extra budget was allocated to address these issues and therefore no changes have been made.

Legal aid remains an important mechanism for providing access to the courts. However, the limits in its scope for civil and family (strict income thresholds and merits assessments for cases) mean that it provides limited support in achieving access to justice and equal access to court. As in other jurisdictions that have seen significant cuts to legal aid budgets, those who cannot afford private legal services but who are not eligible for legal aid are the largest part of the population[1].

5.2. Legislative framework for legal aid

The provision of legal aid is governed by the Legal Services Act 2011. Section 3 of that Act states that its purpose is to “establish a system to provide legal services to people of insufficient means [and to] deliver them in the most effective and efficient manner”.

Legal aid is considered the main mechanism for achieving access to justice, equal access to court and fair trial in criminal cases. The right to legal aid for criminal offences (where it is “in the interests of justice”) is protected by s 24(f) of the NZBORA which states:

Everyone who is charged with an offence shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.

There is no equivalent right for cases that do not involve a criminal offence. Civil legal aid is available in certain limited circumstances which we discuss below. There is income and asset testing as well as assessments of the merits of the case. Civil legal aid is not seen as a primary mechanism for achieving access to justice and equal access to the court in the civil system. Instead the primary mechanism has been self-representation. Lawyers are barred, except from some limited circumstances, from representing litigants in the Disputes Tribunal (for small claims) and the Tenancy Tribunal (for all residential tenancy cases). Lawyers are also barred from representing litigants in some parts of the Family Court process. Alternative dispute resolution via mediation and negotiation is also strongly encouraged (see section 3.3 above).

Section 18(2) of the Legal Services Act 2011 provides that every grant of legal aid is made subject to a condition that the aided person must make repayments. The amount to be repaid is set by the commissioner, and in some cases may be zero. In practice, civil legal aid is considered to be a loan, rather than a grant, as repayment of some or all of the grant will be sought in almost all cases.

5.3. Institutional framework for legal aid

The Ministry of Justice now administers all aspects of legal aid in New Zealand. Most legal aid operates by providing funding on a case-by-case basis to registered lawyer-providers. The provision of criminal legal aid is, however, divided between funding of cases undertaken by legal aid registered criminal lawyers and funding to PDS. PDS is administered by the Ministry of Justice but operates largely independently from the Ministry, although is entirely funded by them, its website is hosted on <www.justice.govt.nz> and its lawyers are employees of the Ministry.

The Ministry of Justice also provides funding to the network of Community Law Centres throughout New Zealand. These Centres are independent entities that each have different funding models and provide different types of advice and advocacy services (for further discussion see 9.3.2 below). The Ministry funding is a core part of most Community Law Centre budgets.

5.4. Legal aid budget

Legal aid is a separate component of the annual Ministry of Justice budget. There are budget lines for the PDS and for legal aid, as well as for provision of funds to the Community Law Centres. The PDS budget for 2019 was NZ$35 million. The budget for funding of legal aid and Community Law was a combined NZ$205 million (approximately NZ$191 million for legal aid). There was also a budget of $31 million for administration of legal aid. The majority of the funding comes from the government, with some funding listed as being provided by “other”, which includes legal aid application fees charged to those seeking civil legal aid[2].

Legal aid expenditure on private legal aid providers peaked in 2009-10, declined through to 2013 and has risen steadily in the last five years (although still not to the level of the 2009-10 peak). The decline in funding post-2009 was driven by falling numbers of criminal legal aid grants (due to falling prosecutions), changes to the Family Court barring lawyers from appearing (number of family legal aid grants has fallen from 25,091 in 2010 to 17,788 in 2018), expansion of the PDS, and “changes to payment frameworks and new operational policies and procedures”[3].

5.5. Legal aid providers

Providers have to be an admitted lawyer in good standing and must prove they are a fit and proper person to provide legal aid. Providers are individually certified in specific listed areas of work (e.g. criminal, family, mental health) and must demonstrate their competence in the area for which they are certified. They are also certified by reference to the level of complexity of case they can undertake and the level of court that they may appear in. There has been a marked decline in the number of registered providers of legal aid since changes from the Bazley Report were implemented (for example, the number of civil providers halved). Reasons for this decline include low payment rates and the administrative burdens, both to register as a provider and to organise grants of legal aid and recoup payments.
Providers are paid in accordance with schedules which have fixed or hourly rates, depending on the work performed. The rates are much lower than those charged in the private market ($100-150/hour compared to fees two to three times more that in the private market). These rates have been criticized as being unsustainably low and the reason that many providers have not registered as legal aid providers. They also encourage lawyers to encourage quick resolution (even if that is not in the interests of the client) and also mean “inexperienced lawyers with insufficient time are trying cases”[4].

Providers performing legal aid work as independent practitioners have a high level of independence from the state. Criminal barristers have critiqued PDS as lacking independence from the Government (they are employees of the Ministry of Justice) and damaging the strength of the independent criminal defence bar[5].

5.6. Quality assurance

There is a strong legal aid quality assurance programme, possibly to the point of being over-zealous and creating burdens that have seriously limited the number of providers available to the public. Quality assurance includes initial approval for providers (outlined above), ongoing monitoring via an audit programme and complaints process, performance management, and requirements for re-approval.

Through a regular audit process, lawyers receive an audit rating, measured on a scale from one to five, with one being excellent and five being very poor. All New Zealand lawyers, including legal aid providers, are required to undertake continuing professional development as a condition of maintaining a practicing certificate.

Clients who are dissatisfied with the performance of their legal aid lawyer can use the complaints procedure. This is administered by the Ministry of Justice overseen by the Team Leader, Legal Aid Provider Services. Clients of the PDS service can also complain to the PDS. All clients can raise concerns about their lawyer with the NZLS’ complaints service, regardless of fee arrangement or who the lawyer is employed by.

5.7. Criminal legal aid

5.7.1. Scope of criminal legal aid

Criminal legal aid is available to people who are charged with, or convicted of, a criminal offence, and who cannot afford to pay for a lawyer to represent them in court (see Legal Services Act 2011, s 8, and NZBORA, s 24(f)). Criminal legal aid is available across the lifespan of a criminal matter – from arrest (irrespective of whether or not the person is remanded in custody) through to the trial, any appeals and parole hearings (Legal Services Act 2011, s 6). Criminal legal aid is not available for victims of crime. There is also no statutory requirement for witness costs (e.g. for travelling to court) to be met by criminal legal aid, but in practice this was regularly done by way of a pre-approved disbursement. The legal aid policy was revised in July 2019, and witness costs will now only be met in exceptional circumstances, with the amounts payable governed by the Witnesses and Interpreters Fees Regulations 1974.

5.7.2. Eligibility criteria for criminal legal aid

Applicants do not have to be a New Zealand citizen or to be living in New Zealand permanently to be eligible for criminal legal aid. Eligibility is determined by the applicant’s financial circumstances, as well as by the seriousness of the offence, and whether it is in the interests of justice (Legal Services Act 2011, s 8).

Pursuant to s 8(1)(b) of the Legal Services Act 2011 criminal legal aid will only be granted if the applicant has insufficient financial means to fund their own legal counsel. To determine the applicant’s financial circumstances, both gross income and disposable capital (e.g. equity in own home, value of main car) will be assessed; this may also include an assessment of a spouse or partner’s financial circumstances.

If the applicant does not have sufficient financial means to fund their own legal counsel, criminal legal aid will be available when the offence is punishable by a maximum term of imprisonment of six months of more (Legal Services Act 2011, s 8(1)(c)(a)). If the offence does not meet that criteria, legal aid can still be available if it is in the interests of justice to do so (Legal Services Act 2011, s 8(1)(c)(a)). There are a range of factors that can be considered under the ‘interests of justice’ test set out in s 8(2) of the Act including: previous convictions, likelihood of imprisonment, the complexity of the matter, ability of the applicant to understand the proceedings and present his or her own case. The numbers of grants of criminal legal aid per year from 2009-2018 are shown in Chart 09.

Some applicants will have to repay some, or all, of their legal aid grant. When the grant is awarded, the applicant will also be notified if it is repayable, and whether interim repayments will be required. The factors considered when assessing the repayable amount are: income and capital, relationship status, dependants, and cost of the legal services provided. The grant can also be subject to a charge over the applicant’s property (e.g. their house or car), which can be recovered on sale. In some circumstances applicants can later request that repayment not be enforced (e.g. on the grounds that repayment would cause serious hardship to the aided person). Sections 18, 20 and 21 of the Legal Services Act 2011 apply here.

5.7.3. Process for obtaining criminal legal aid

A person can apply for criminal legal aid after they have been charged with an offence. The process is usually initiated through a duty lawyer who gives advice when the person first appears in court, or by a legal aid lawyer. The application is decided by the Legal Services Commissioner (or their delegated authority). If the Commissioner awards the grant, pursuant to s 10 of the Legal Services Act 2011 they must specify the conditions attached to the grant and the lead provider (the legal aid lawyer in charge of the file). The Commissioner may specify a maximum grant.

Defendants who are charged with offences where the maximum prison term is between six months and 10 years, will be automatically assigned a legal aid lawyer. Defendants facing more serious charges (a maximum sentence of more than ten years) can choose their own lawyer, provided the lawyer is an approved legal aid provider, and has capacity to carry out the work. If the defendant is not satisfied with their assigned legal counsel, a new lawyer can be assigned provided there are good reasons for doing so. If the defendant opts to represent themselves, the Court may choose to appoint standby counsel, to assist the defendant, whose fees will be met by the state. The role of standby counsel (and the distinction between that role and that of amicus curiae) in the New Zealand court system is discussed by the Court of Appeal in Fahey v R [2018] 2 NZLR 392 at [79] – [84].

Chart 09. Total number of individuals charged with a criminal offence in a calendar year and grants of criminal legal aid[6]

5.8. Civil legal aid

5.8.1. Scope of civil legal aid

As with criminal legal aid, civil legal aid is granted pursuant to the Legal Services Act. It is available for civil proceedings in the District and High Court, in the Court of Appeal and Supreme Court, and for some proceedings in the Family Court. Upon approval of the Legal Services Commissioner legal aid will be granted for proceedings in other courts (for example the Māori Land Court, the Employment Court, and the Environment Court); administrative tribunals or authorities (for example the Tenancy Tribunal, the Immigration and Protection Authority, and the Waitangi Tribunal); for proceedings before the Parole Board; and for coroner’s inquests.

“Legal services” that may be provided pursuant to a grant of civil legal aid are defined in section 4 of the Legal Services Act 2011 and include:

(a)legal advice and representation; and
(b) assistance with resolving disputes other than by legal proceedings; and
(c) assistance with taking steps that are preliminary to any proceedings; and
(d) assistance with taking steps that are incidental to any proceedings; and
(e) assistance in arriving at or giving effect to any out-of-court settlement that avoids or brings to an end any proceedings.

“Legal services” may include representation before ADR fora if the dispute or problem is a “civil proceeding” for which aid may be granted. Section 4 of the Legal Services Act 2011 defines the term “civil proceedings” by reference to particular statutes under which proceedings are brought, but does not define the word “proceeding”. While ordinary use of the term “proceeding” might suggest that an application for legal aid will only be granted once documents have been filed in Court, the scope of the Act gives the word a wider meaning. If no proceedings have been filed, drafted or contemplated, but legal services are required, then aid may be granted if there is an eligible proceeding under s 7 of the Act, and the application meets the financial and merits test, which we discuss below. For legal aid to be granted, there must be a matter in dispute which can only be resolved using the “legal services” defined in s 4 of the Act. If the matter cannot be resolved, then there must be a real likelihood that it would be heard in one of the eligible fora. Evidence of relevant correspondence and previous attempts to settle or a written explanation will be required to satisfy this requirement.

Applicants for almost all civil proceedings must pay a “user charge” of $50 to their lawyer, and a lawyer may decline to act until the user charge is paid (Legal Services Act 2011, s 18A). The rationale for requiring this payment from the client is that it encourages people to resolve their disputes out of court. This $50 is the only sum a lawyer may receive from a client in respect of a matter for which legal aid is granted. Lawyers who are found to have asked for additional payments are likely to face disciplinary action.

Civil legal aid grants come with repayment conditions. The amount which must be repaid and the time for repayment will depend on the circumstances of the particular applicant. If an applicant obtains an award of money through litigation, then this will be applied to satisfy the legal aid debt. Applicants who have not repaid previous legal aid grants may find that further applications are declined. As we said above, the Legal Services Agency will commonly place a charge over real property owned by an applicant, which can be removed on repayment.

5.8.2. Eligibility criteria for civil legal aid

Like criminal legal aid, in no situation is civil legal aid an absolute right. However, civil legal aid is not provided for under the NZBORA, whereas the NZBORA does protect the right to free counsel in criminal cases. Civil legal aid is only available to natural persons who are financially eligible, and who have reasonable grounds to either take or defend proceedings, or be a party to them (Legal Services Act 2011, s 10). In some circumstances, legal aid may be granted to trustees or corporations which are concerned in a proceeding in a representative, fiduciary, or official capacity (Legal Services Act 2011, s 10(1)(b)). Applicants do not have to be resident in New Zealand, but legal aid will not be granted if a matter can be disposed of in an overseas jurisdiction. Individuals who are unlawfully in New Zealand will not ordinarily be entitled to legal aid, even for matters concerning their immigration status.
An applicant for a grant of legal aid must satisfy financial eligibility criteria, and show that the proceedings are of ‘sufficient merit’. We now discuss those tests. Legal aid will be refused if the applicant’s income or disposable capital exceeds the relevant maximum levels proscribed by regulations made pursuant to the Act. These levels are assessed by taking into account:

(a) The applicants’ gross annual income;
(b) The applicants’ disposable capital; and
(c) The applicant’s family size and composition (including the number of dependent children and whether or not they have a spouse or partner)

If either of the relevant annual income or disposable capital thresholds has been exceeded, legal aid will be refused unless there are special circumstances. These are described in s 10(2) of the Legal Services Act 2011 as:

(a) the likely cost of the proceedings such as the average cost of similar cases if privately funded and the applicant’s disposable income; and
(b) the applicant’s ability to fund the proceedings if aid is not granted.

For example, an applicant may be granted legal aid if they own a home but their annual gross income falls within the eligibility threshold and they have evidence that they cannot obtain a bank loan, or that they cannot afford to pay for their own legal services. For certain specified applications, s 10(2)(a) of the Legal Services Act 2011 provides that only one of the s 10(2) circumstances need be satisfied. These applications concern proceedings regarding compulsory assessment and treatment (for mental health and/or intellectual disability), family violence, child wellbeing, and refugee and protected person status.

Civil legal aid will be refused pursuant to s 10(3) of the Legal Services Act 2011 if the applicant cannot show that they have reasonable grounds for taking or defending the proceedings, or being a party to the proceedings. The applicant must have a significant personal interest in the outcome which justifies pursuing the matter, or the proceedings must involve family violence or mental health. If there are other factors (e.g. the applicant has made several unsuccessful previous applications) then legal aid may also not be available. Whether or not the applicant’s case is in the public interest may also be taken into account when considering an application for legal aid.

If the application is for a Waitangi Tribunal matter, ss 47 to 50 of the Legal Services Act 2011 apply. The legal aid provider who submits the application must show that the applicant is Māori and that the claim in question is or will be submitted for the benefit of a group of Māori of which the applicant is a member. Waitangi Tribunal legal aid applications have a different set of financial assessment criteria (see s 48) and must be referred to the Waitangi Tribunal by the Legal Aid Commissioner (s 49).

Many stakeholders within the justice system are concerned about the legal aid income thresholds, and how they prevent equitable access to justice. A person working full time and earning the minimum wage in New Zealand receives an annual income that puts them over the legal aid income threshold. This means that many of the ‘working poor’ in New Zealand are not entitled to civil legal aid. The threshold requirements and the cost of obtaining private legal services in New Zealand are considered to be a major contributor to the justice gap. Persons and organisations that have expressed concern about this issue include senior members of the judiciary, the New Zealand Bar Association[7] and academics[8].

5.8.3. Process for obtaining civil legal aid

A person seeking civil legal aid needs to see a lawyer before applying. The lawyer will assist the applicant with completing a form which is in two parts: a section setting out the applicant’s financial and family circumstances (which must be filed with verifying documentation, for example bank statements and pay slips); and a section completed by the lawyer, which addresses the sufficient merit test, and sets out the level of funding sought. Only lawyers who are approved civil legal aid providers may complete the form. A legally aided person can nominate a preferred lawyer, but their lawyer must have been approved by the Legal Services Agency to undertake the particular services required.

The Ministry of Justice provides information on its website to help people find a lawyer, including directing them to its online “Find a Legal Aid Lawyer/Provider” tool, which allows people to search for legal aid lawyers by name, firm, location, or the type of law provided. A prospective client would then need to contact each lawyer in the area to see if the lawyer will take the case. Finding a legal aid lawyer can be a challenge for some applicants due to a shortage of approved providers. For example, in Dunedin, a city of 120,000, a 2017 audit of legal aid providers found that only 18 lawyers were registered to take on civil legal aid work[9].  As we said above, there has been a marked decline in the number of civil legal aid providers. If a person is eligible for civil legal aid and there is no provider in their district, an out of town lawyer will be assigned and the Legal Services Agency will meet the lawyer’s travel costs.

Once the form is completed, the lawyer sends it to the relevant office of the Legal Services Agency. Application forms that have not been completed in the “prescribed manner” will be returned to the applicant or to their lawyer for completion and/or for additional information. Grants staff employed by the Legal Services Agency process applications, and are supported by a team of “specialist advisers” – lawyers who are employed by the Legal Services Agency.

5.8.4. Reconsiderations and reviews of legal aid decisions

Legal aid applicants who are “aggrieved” with a decision that affects them have the right to apply for a reconsideration of a legal aid grant. This process is set out in s 51 of the Legal Services Act 2011 and is the same for both criminal and civil legal aid. An application for a reconsideration must be brought within 20 working days of the original decision and is made by submitting a form to the legal aid office that dealt with the original decision. Applicants are entitled to submit additional information with their reconsideration application and are advised that the person who reconsiders the decision will not be the person who made the original decision.

If a person is unsatisfied with the reconsideration decision, s 52 of the Legal Services Act 2011 gives them the right to apply for review. Applications for review must be brought within 20 working days of the decision. Reviewable decisions are specified in s 52(2) of the Act and may be brought on the grounds that the legal aid decision was manifestly unreasonable or wrong in law. A decision is manifestly unreasonable if it is shown “clearly and unmistakably” that the Agency’s decision “went beyond what was reasonable or was irrational or logically flawed” (Legal Services Agency v Fainu [2002] 17 PRNZ 433). A decision is wrong in law if: it derives from an inaccurate application or interpretation of a statute; is wrong in principle; a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter; the decision depends on findings that are unsupported by the evidence (Legal Services Agency v Fainu [2002] 17 PRNZ 433). Applications for review are heard by the Legal Aid Tribunal established under subpart 8 of the Legal Services Act 2011. Tribunal members must be lawyers who have not been employed by the Legal Services Agency, a board of the Legal Services Agency, or by the Ministry of Justice within the previous five years. A Tribunal chair cannot be a legal aid provider while he or she holds that office. Decisions of the Tribunal may be appealed to the High Court (or further) on questions of law (Legal Services Act 2011, ss 59-61).

Chart 10. Total legal aid expenditure, by legal aid type, 2010/2011 – 2019/2020 [10]

Legal aid type	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020	% change between 2018/2019 and 2019/2020
Criminal	–	55.951.571	44.982.944	47.614.216	58.044.885	62.076.572	68.794.351	81.093.364	96.498.233	108.143.935	+12%
Family	–	53.235.967	41.955.068	43.058.752	41.781.972	43.479.034	42.400.602	45.152.410	46.809.111	48.678.167	+4%
Civil	–	6.167.221	6.168.984	6.356.325	5.404.373	6.186.983	5.599.516	5.748.427	6.088.199	6.474.832	+6%
Waitangi Tribunal	–	12.642.289	9.161.990	12.503.122	13.879.009	13.663.534	15.487.388	15.871.030	16.409.801	15.181.263	-7%
Total	–	127.997.048	102.268.986	109.532.415	119.110.239	125.406.122	132.281.857	147.865.231	165.805.345	178.478.198	+8%

Chart 11. Number of legal aid grants, by legal aid type, 2010/2011 – 2019/2020

Legal aid type	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020	% change between 2018/2019 and 2019/2020
Criminal	56.118	51.719	49.990	47.923	50.145	54.621	56.057	57.488	58.104	57.116	-2%
Family	24.587	23.472	22.806	21.419	18.155	18.364	17.897	17.885	17.485	18.126	+4%
Civil	2.014	1.700	2.078	1.412	976	1.032	1.021	1.227	1.171	1.163	-1%
Waitangi Tribunal	112	95	113	65	63	129	152	206	296	161	-46%
Total	82.831	76.986	74.987	70.819	69.339	74.146	75.127	76.806	77.056	76.566	-1%

Chart 12. Number of civil legal aid grants, by gender of applicant, 2010/2011 – 2019/2020

	Number of family legal aid grants
Gender	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
Female	13.965	13.300	12.855	12.171	10.438	10.930	10.654	9.628	7.284	7.119
Male	7.855	7.621	7.604	7.302	6.716	6.942	6.686	6.400	5.215	5.064
Other	0	0	0	0	0	0	1	0	0	3
Unknown	2.767	2.551	2.347	1.946	1.001	492	556	1.857	4.986	5.940
Total	24.587	23.472	22.806	21.419	18.155	18.364	17.897	17.885	17.485	18.126
	Number of civil legal aid grants
Gender	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
Female	638	448	505	431	355	299	288	350	256	245
Male	1.308	1.197	1.522	956	612	718	710	838	692	620
Other	0	0	0	0	0	0	0	0	0	0
Unknown	68	55	51	25	9	15	23	39	223	298
Total	2.014	1.700	2.078	1.412	976	1.032	1.021	1.227	1.171	1.163
	Number of Waitangi Tribunal legal aid grants
Gender	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
Female	39	35	36	24	22	53	70	99	159	89
Male	73	59	73	38	40	73	80	107	127	57
Other	0	0	0	1	0	0	0	0	0	0
Unknown	0	1	4	2	1	3	2	0	10	15
Total	112	95	113	65	63	129	152	206	296	161

Chart 13. Number of civil legal aid grants, by ethnicity of applicant, 2010/2011 – 2019/2020

	Number of family legal aid grants
Ethnicity	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
NZ European or Pakeha	10.095	9.521	9.043	8.438	7.068	7.491	7.056	5.051	2.727	2.534
NZ Māori	4.903	4.611	4.584	4.343	3.947	4.104	3.998	2.990	1.744	1.773
Cook Island Māori	253	220	234	242	183	177	183	131	78	64
Samoan	510	466	460	442	352	376	371	305	171	138
Other Pacific Islander	1	0	0	0	1	0	2	1	1	0
Other	3.053	2.925	3.063	2.952	2.876	2.925	2.781	1.906	1.012	870
Unknown	5.772	5.729	5.422	5.002	3.728	3.291	3.506	7.501	11.752	12.747
Total	24.587	23.472	22.806	21.419	18.155	18.364	17.897	17.885	17.485	18.126
	Number of civil legal aid grants
Ethnicity	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
NZ European or Pakeha	817	619	695	514	348	304	280	272	98	119
NZ Māori	319	273	368	249	140	164	157	203	122	76
Cook Island Māori	11	14	28	8	5	6	10	10	6	2
Samoan	36	36	50	18	16	18	13	10	3	9
Other Pacific Islander	0	0	0	0	0	0	0	0	0	0
Other	497	442	539	420	364	362	396	308	141	65
Unknown	334	316	398	203	103	178	165	424	801	892
Total	2.014	1.700	2.078	1.412	976	1.032	1.021	1.227	1.171	1.163
	Number of Waitangi Tribunal legal aid grants
Ethnicity	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
NZ European or Pakeha	0	0	1	0	2	2	1	0	0	0
NZ Māori	85	59	51	21	25	54	59	94	123	54
Cook Island Māori	0	0	0	0	0	0	0	0	0	0
Samoan	0	0	0	0	0	0	0	0	0	0
Other Pacific Islander	0	0	0	0	0	0	0	0	0	0
Other	0	3	2	2	0	1	1	0	2	5
Unknown	27	33	59	42	36	72	91	112	171	102
Total	112	95	113	65	63	129	152	206	296	161

Chart 14. Number of civil legal aid grants, by age of applicant, 2010/2011 – 2019/2020

	Number of family legal aid grants
Age group (years)	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
10 to 18	495	513	436	393	325	335	315	278	255	227
19 to 29	8.563	8.422	8.128	7.679	6.243	6.383	5.873	5.849	5.416	5.481
30 to 39	7.669	6.950	6.695	6.221	5.084	5.243	5.294	5.438	5.385	5.769
40 to 49	4.882	4.664	4.478	4.205	3.636	3.443	3.357	3.290	3.312	3.333
50 to 64	2.292	2.302	2.422	2.281	2.174	2.257	2.304	2.286	2.361	2.477
65 and over	583	573	610	613	648	631	695	713	709	807
Unknown	103	48	37	27	45	72	59	31	47	32
Total	24.587	23.472	22.806	21.419	18.155	18.364	17.897	17.885	17.485	18.126
	Number of civil legal aid grants
Age group (years)	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
10 to 18	14	12	7	13	9	4	6	11	11	5
19 to 29	366	387	451	274	168	154	204	214	197	200
30 to 39	434	425	491	278	213	219	265	312	339	299
40 to 49	589	449	541	401	251	282	236	327	262	288
50 to 64	496	333	476	360	280	299	267	301	279	302
65 and over	101	86	108	84	53	72	42	60	83	67
Unknown	14	8	4	2	2	2	1	2	0	2
Total	2.014	1.700	2.078	1.412	976	1.032	1.021	1.227	1.171	1.163
	Number of Waitangi Tribunal legal aid grants
Age group (years)	2010/2011	2011/2012	2012/2013	2013/2014	2014/2015	2015/2016	2016/2017	2017/2018	2018/2019	2019/2020
10 to 18	0	0	0	0	0	0	0	0	0	0
19 to 29	4	0	3	2	0	0	0	2	1	2
30 to 39	5	7	1	2	0	3	4	6	8	4
40 to 49	14	14	11	5	5	5	18	18	14	12
50 to 64	65	36	46	35	24	49	69	97	144	70
65 and over	23	36	48	20	33	67	58	82	127	73
Unknown	1	2	4	1	1	5	3	1	2	0
Total	112	95	113	65	63	129	152	206	296	161

5.9. Holistic legal services

New Zealand has not been the site of developments in holistic legal services thus far. There is very little discussion about providing legal services outside the traditional models of service delivery. There is a movement towards focussing on dispute prevention. For example, the Government Centre for Dispute Resolution (housed in the MBIE) has a particular focus on dispute prevention which may shift focus onto holistic legal services in the future.

6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY

6.1. Overview of judicial costs for litigants

In this section, we discuss two types of costs litigants incur in bringing or defending a proceeding. First, court fees, which are the fees that litigants are required to pay to the Ministry of Justice in order for their civil cases to proceed through the courts. Second, costs, which is a regime that governs the payment of costs to a successful party by the unsuccessful party on disposal of civil proceedings.

6.1.1. Court fees

Litigants are required to pay a range of fees throughout a proceeding, from filing fees through to hearing fees and to enforcement. The fees payable are set out in regulations relevant to the particular jurisdiction, for example; the High Court Fees Regulations 2013, the Family Court Fees Regulations 2009, and the Court of Appeal Fees Regulations 2001. The Ministry of Justice publishes explanations for the public about court fees and links to the relevant courts and tribunals so that litigants can understand what is required[1].

Plaintiffs are ordinarily required to pay a fee to the Ministry of Justice when commencing proceedings. Defendants are also ordinarily required to pay a fee when they file their statement of defence or response document. Proceedings are not accepted for filing by the Court unless the required fee is paid. Other than hearing fees and fees involved with searching and copying documents where a per day/item methodology is applied, court fees are simply set by relevant regulations.

Tribunals may also require the payment of filing fees. For example, a claimant in the Disputes Tribunal is required to pay a filing fee of $45 for a claim worth $2000 or less. The maximum filing fee in the Disputes Tribunal is $180, for claims of $5000 or more.

As proceedings progress, parties may be required to pay additional fees. For example, if interlocutory applications are filed, the filing party pays a filing fee, and the other party or parties pay when they file their response. Plaintiffs that are participating JSCs must also pay a fee.

The plaintiff is required to pay a scheduling fee and a hearing fee for a matter to proceed to trial. For ordinary proceedings in the High Court the scheduling fee is $1600 and hearing fees are $1600 for each half day (or part of a half day after the first half day) (see items 17(d) and 20 in the Schedule to the High Court Fees Regulations 2013). The scheduling fee must be paid no later than 15 days after all parties are notified of the hearing date (High Court Fees Regulations 2013, r 9(2)) and the hearing fee must be paid within 30 and 45 days of the hearing date (High Court Fees Regulations, r 9(3)). If matters settle before trial, or the hearing is shorter than anticipated, the hearing fee (or balance of the hearing fee) is refunded. If the hearing fee is not paid by the specified time, the registrar may vacate the allocated hearing date. This does not necessarily mean that proceedings are at an end but the late-paying party must apply for a new hearing date. The same applies for JSCs. In the District Court the time frames are the same. The hearing fee and setting down fee are $900.

Interestingly, the fee for a JSC in the District Court (where JSCs are strongly recommended) is higher than in the High Court. Similar provisions regarding hearing fees also apply in other courts but not necessarily in tribunals.

6.1.2. Costs

The issue of costs as between parties to litigation is set out in statute, and is frequently the subject of argument before the Courts. A great deal has been written about costs. In this section, we discuss the main principles relating to costs for litigation in the High Court, which generally apply across New Zealand’s other courts.

The prima facie position regarding litigation is that the successful party is entitled to costs, paid by the unsuccessful party. Costs are set at the discretion of the Court (see High Court Rule 14.1), but the judge will refer to the following principles set out in High Court Rule 14.2:

(a) The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;
(b) An award of costs should reflect the complexity and significance of the proceeding;
(c) Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application;
(d) An appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application;
(e) What is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs;
(f) An award of costs should not exceed the costs incurred by the party claiming costs; and
(g) So far as possible the determination of costs should be predictable and expeditious.

In ordinary cases, the “appropriate daily recovery rate” referred to in High Court Rule 14.2(c) is calculated by reference to the formula a x b where a is the amount per day that can be claimed in legal fees and b is the amount of time that can be claimed for each step taken in the proceedings. a is given a number category (1, 2, or 3) based on the categorisation of complexity of the proceedings and the degree of experience required of the lawyers involved (High Court Rule 14.3). Each category is then allocated a dollar value set by the relevant court rules (High Court Rule 14.6). Most lawyers and litigants in New Zealand are of the view that this daily recovery rate is less than two-thirds of what is spent by many parties to litigation (despite the intention of Rule 14.2(d)).

The Court may depart from the prima facie position and order:

(a) That costs lie where they fall between the parties. This is often the case where both parties have enjoyed a degree of success in the proceedings.
(b) That the paying party must pay increased costs (High Court Rule 14.6(3))
(c) That the paying party must pay indemnity costs, that is, the full costs incurred by the other party (High Court Rule 14.6(4))
(d) That the amount of costs calculated by the schedule be reduced (High Court Rule 14.7)

While increased costs and indemnity costs may flow following an assessment of the parties’ behaviour, they may also be provided for in contract.

Costs are not awarded against a party who is funded by legal aid. When filing an appeal, parties must clarify in the notice of appeal whether they are in receipt of legal aid. If a legally aided party is successful in the proceedings, the award of costs is paid to the Ministry of Justice. This may decrease the amount that the legally aided party has to repay, depending on their legal aid contract.

Successful parties are also allowed to claim “disbursements”. These encompass the court fees that they have already paid, as well as costs such as counsel’s travel, photocopying and postage, and any experts’ fees. Disbursements must be approved by the Court.

Orders to pay costs and disbursements are enforceable in the same manner as any other order from the Court.

6.2. Exemption from judicial costs

6.2.1. Court fees

Litigants are entitled to seek exemption from liability to pay court fees. We discuss the High Court Fees Regulations 2013 here to provide examples which are linked to statutory provisions, but note that the provisions in the regulations for the District Court, the Court of Appeal, and the Supreme Court are virtually identical. Under reg 18, a registrar of the High Court is given the power to waive a fee required in connection with a proceeding if satisfied either that the applicant is unable to pay the fee, or that the proceeding concerns a matter of genuine public importance and is unlikely to be commenced or continued unless the fee is paid. The applicant is exempt from making payments until their application is determined. The criteria under which the registrar may be satisfied that payment cannot be made is set out in reg 19:

(a) The person has been granted legal aid for the matter for which the fee is payable; or
(b) The person is dependent on social welfare, superannuation, or a veteran’s pension; or
(c) The person would otherwise suffer undue financial hardship if he or she paid the fee.

The Supreme Court has held that “undue” financial hardship means “excessive”, and granted a waiver where the applicant could prove that they were already in a precarious financial position and would go further into debt to pay the filing fee (Jaffari v Grabowski [2014] NZSC 150 at [7]). This is a more generous interpretation than that given by the Court of Appeal in Boswell v Millar [2013] NZCA 219, where the Court held that the burden of the applicant’s legal debts were “an ordinary consequence” of her decision to sue the respondent.
Regulation 20 defines the criteria for determining “genuine public importance” as follows:

(a) The proceeding will determine a question of law that is of significant interest to the public or to a substantial section of the public;
(b) The proceeding raises issues of significant interest to the public or to a substantial section of the public and has been commenced by an organisation that is “expressly or by necessary implication required to promote matters in the public interest”.

There is little in the case law in relation to waiver applications in either the High Court, the Court of Appeal, or the Supreme Court to offer guidance as to the “genuine public importance” test.

A person seeking a waiver must make a formal application to the registrar of the relevant Court. A registrar is a statutory appointment given specific powers, including considering fee waiver applications. The applicant must use the fee waiver form that is available via the Ministry of Justice website. If the applicant is in receipt of legal aid or social welfare they must provide proof of this. If they are not in recipient of legal aid or social welfare but are otherwise claiming undue financial hardship, or claiming the proceedings are in the general public interest, then the applicant must provide details by way of a statutory declaration (a written declaration given on oath).

If an application for waiver is declined by the registrar, the applicant has 20 working days to apply for review of that decision (see Senior Courts Act 2016, s160). Again, the Ministry of Justice website provides forms for the applicant to complete. The review will be considered by a judge of the relevant court. A litigant unsatisfied with a Judge’s decision may further appeal that decision, but would need to seek additional fee waivers in the relevant higher courts.

6.2.2. Overall: do costs and fees promote or limit access to justice?

The cost of litigation, and the impact of costs orders on parties, is considered to be a major issue concerning access to civil justice in New Zealand. Commenting recently to the NZLS, the chair of the society’s Civil Litigation and Tribunals Committee noted that costs can easily overrun the amount sought in a case[2]. The cost of court fees is a significant barrier which introduces a “user pays” mentality into a system that should be regarded as a public good[3]. The much larger cost, however, is the fees charged by lawyers and attention is also being focused on how these can be lowered[4].

6.3. Mechanisms to reduce costs by variations to courts and procedures

It is well recognised in New Zealand that one way to minimise costs to litigants is to streamline procedure or develop procedure that avoids legal costs. As already discussed in this report, the New Zealand system has a variety of mechanisms to reduce cost. The Tribunals, designed to lower cost, are discussed in section 3.4. Tribunals have lower filing fees and because lawyers are barred, they are also structured to eliminate, or at least significantly reduce, the cost of legal assistance. Variations in filing fees are discussed in section 6.1.1. Court procedures such as summary judgment and the District Court short trial (section 3.2.4) have been introduced with the intention to streamline proceedings and to lower costs. ADR (both private and state-provided) is offered as a mechanism to avoid or minimise the cost of legal proceedings (see section 3.3).

On 17 December 2019 the Rules Committee announced a “wide reaching” review of the High Court Rules and the District Court Rules. On its website the Committee describes the review’s overall goal:

… to improve access to justice in New Zealand by reducing how much it costs to bring a civil matter to court. The Committee wants to better enable judges, and encourage lawyers, to honour their responsibility to ensure that the costs of each case are as low as can be while ensuring that justice is done.[5]

Submissions on the proposed reforms are being sought from the legal profession and from the wider public during 2020.

7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS

7.1. Diffuse interests

Proceedings in New Zealand may be brought by organisations, statutory bodies or government departments on behalf of indeterminate groups of people in order to protect diffuse interests. We give some examples:

(a) Powelliphanta Augustus Inc v Solid Energy New Zealand Ltd (High Court, Christchurch, 9/7/2007, CIV-2006-409-2993, Panckhurst J) was concerned with an application for judicial review brought against Solid Energy, a state owned enterprise, by a “public interest body concerned with the wellbeing of [native] snails relocated in the context of Solid Energy’s mining operation” (at [2]).
(b) Stop the Stadium Inc v The Dunedin City Council (High Court, Dunedin, 24/4/2009, CIV 2009-412-337, Chisholm J) was an unsuccessful application for judicial review brought by a ratepayer’s organisation challenging a council’s decision to enter into a construction contract for a new stadium. The organisation was concerned about the impact the project would have on rates.
(c) Falun Dafa Association of New Zealand Inc v Auckland Children’s Christmas Trust Board [8 HRNZ 680] was an application for judicial review of the defendant’s decision to decline permission for it to participate in the annual Auckland Christmas parade.

As we discuss above (see 3.1.2), local authorities can bring prosecutions against individuals and/or companies that breach environmental regulations, planning regulations, or regulations concerning food safety, dog owners, and similar. There are other entities established by the government, but independent from it, who can bring cases that concern their area of responsibility. For example, the Commerce Commission (an independent Crown entity charged with enforcing laws in relation to competition, fair trade and consumer credit contracts) can bring proceedings against companies that engage in price fixing, or in misleading or deceptive trade practices, and WorkSafe (an arm of the Ministry of Business, Innovation and Employment) is tasked with regulating and enforcing New Zealand’s health and safety legislation.

The specific court procedures that apply for litigation concerning diffuse interests will vary depending on the nature of the remedy that is sought. Some cases are quasi-criminal, for example prosecutions brought by local authorities under the Resource Management Act 1991. Other cases are heard in the civil jurisdiction, for example, applications for judicial review.

7.2. Collective rights

7.2.1. Civil procedure mechanisms

The rules of civil procedure provide various methods under which parties with similar interests may join or merge proceedings (see High Court Rules, subpart 3). For example, proceedings may include more than one plaintiff where two or more parties seek the same relief. Plaintiffs may be represented by the same lawyer, or each may have their own representation (this may depend on whether or not conflicts may arise). A party who becomes aware of litigation that might affect their interests may apply to be joined to civil proceedings as a plaintiff or third party.

Two or more proceedings may be consolidated (tried at the same time or one immediately after the other) where the Court is satisfied that some common question of law or fact arises in all of the proceedings, or the rights to relief claimed in the proceedings arise out of the same event or transaction. In such a situation the Court may also order that any of the proceedings be stayed until after the determination of another.

7.2.2. Legal personhood

In 2014, New Zealand let the world in recognising the legal personhood of Te Urewera Ranges, the ewe whenua (place of origin and return), and homeland of the Tūhoe people (Te Urewera Act 2014, s 3(5)).  In 2017, Parliament passed Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (Te Awa Tupua Act) to recognise the special relationship between the Whanganui River and iwi of that area. Section 14 of the Te Awa Tupua Act confers legal personality on the Whanganui River/Te Awa Tupua, “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” (s 12).  The effect of Te Urewera Act and Te Awa Tupua Act means decisions that affect Te Urewera or Te Awa Tupua must recognise their legal status and their health and well-being. This mechanism is another way of protecting collective rights of iwi, but to date no litigation has been commenced under either of the Acts.

7.3. Class actions

While not particularly common in New Zealand, class action lawsuits have been identified as an “increasingly strong access to justice route” by the NZLS[1]. A leading New Zealand commentator on class actions describes them as:

A legal procedure which enables a number of persons with similar claims (or parts of claims) against the same defendant to be determined in one suit. In a class action, one or more persons (the ‘representative plaintiff(s)’) may sue on his, her or their own behalf and on behalf of a number of other persons (‘the class’) where the class claims a remedy for the same or a similar alleged wrong as the representative plaintiff (‘common issues’). Usually, only the representative plaintiff is a party to the action. The class members are not generally identified as individual parties to the litigation but merely described. The class members are bound by the outcome of the litigation on the common issues, whether favourable or adverse to the class, although they do not for the most part, take any active part in that litigation.[2]

Class actions in New Zealand have proceeded only on an opt-in basis (all members of the defined plaintiff class must positively decide to opt-in to the proceedings). This is different to most comparable jurisdictions, where class actions are “almost invariably brought on an opt-out basis”[3].

While the Rules Committee worked on a proposed draft Class Actions Bill in 2008 and recommended amendments to the High Court Rules, there are presently no detailed statutory provisions with regard to class actions.  The Law Commission announced a review in 2017, but got no further than releasing draft terms of reference. In 2019 the Commission dusted off its review and announced that a report on the law relating to class actions and litigation funding in New Zealand and what law reform is desirable will be completed by the end of 2021[4].

While there are no detailed statutory provisions, High Court Rule 4.24 does allow class actions to proceed in New Zealand. The Rule states:

One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—

(a) with the consent of the other persons who have the same interest; or

(b) as directed by the court on an application made by a party or intending party to the proceeding.

Nikki Chamberlain’s paper records that until 1 March 2018, 36 class actions had been filed in the High Court in New Zealand. Before the 1980s there were just three class actions, then the 1980s brought in four. By the 1990s that figure had doubled to eight and by the first decade of the 2000s, it was 13. Between 2010 and 2018 there have been eight.

In September 2019, the Court of Appeal handed down its decision in Ross v Southern Response Earthquake Services Limited, a claim brought by a group of Canterbury homeowners against Southern Response, a Government-owned company formed to handle certain claims arising out of the Christchurch earthquakes. The Court of Appeal determined that it is not “necessary or appropriate” to wait for detailed legislation about class actions to be enacted before the Courts can order cases to proceed on an opt-out basis, as the courts “have the necessary powers to manage the procedural issues that will arise in the context of opt-out [class actions]” (see [111]). At paragraph 98 of the decision, the Court states that an opt-out approach is “likely to significantly enhance access to justice.” As at March 2020, the law on opting-out class actions in New Zealand remains unsettled, Southern Response having appealed to the Supreme Court.

7.3.1. Policies that encourage counsel to litigate group claims

As we discussed above, legal aid is only granted to individuals, so incorporated societies or other entities that are seeking to protect group interests (such as an environmental protection group) are unable to obtain legal aid. Māori groups involved in Waitangi Tribunal claims may be eligible for grants of legal aid (see section 5.8.2).

The Ministry for the Environment operates an Environmental Legal Assistance Fund for not for profit groups “advocating for matters of environmental public interest”. This funding is intended to enable groups to “participate more effectively and efficiently in resource management processes at the Environment Court, higher courts, or board of enquiry”. The fund has a total annual budget of $600,000 and the maximum grant available is $50,000 per group per application for any one case. Funding criteria is set out in some detail on the Ministry’s website[5].

New Zealand does not have a tradition of “public interest law firms”, although there may be some lawyers or law firms who have a particular interest in public interest work. These firms may offer reduced fees or pro bono work for some causes but there is no existing data on this.

8. PROFESSIONAL LEGAL ETHICS

8.1. Self-regulation

The regulatory regime in New Zealand is commonly described as “co-regulatory”. The legal profession is regulated by the Lawyers and Conveyancers Act 2006. The Act requires there be a set of professional conduct and client care rules (Client Care Rules). The profession writes the Client Care Rules but they are subject to Ministerial approval. When deciding whether to approve the Client Care Rules, the Minister must consider a number of factors including “the fundamental obligations of the practitioners”, “the principle that it may be necessary or expedient to impose duties or restrictions on practitioners in order to protect the interests of consumers” and New Zealand’s international obligations (Lawyers and Conveyancers Act 2006, s 101). Lawyers can be disciplined for breaches of the Client Care Rules. The disciplinary mechanism is set out in the Act and comprises of a range of bodies: Lawyers Standards Committees (made up of lawyers and at least one lay member), the Legal Complaints Review Officer (must be a non-lawyer but may be a former lawyer), and the Lawyers and Conveyancers Disciplinary Tribunal (administered by the Ministry of Justice)[1]. A theme from recent lawyer disciplinary cases is a growing awareness of the link mental health and addiction has with misconduct, and the need for those matters to be considered[2].

8.2. Legal ethics courses at law schools

To qualify for admission to practice, one of the requirements is that a candidate must have completed “a course in legal ethics taught at a Law School University in New Zealand” (Professional Examinations in Law Regulations 2008, reg 3). The Council for Legal Education sets the prescription for the course, requiring the following components: “An introduction to ethical analysis including an examination of various theories of ethics; the applicability of ethical analysis to legal practice; the principles of ethical conduct and the role and responsibilities of lawyers; the wider responsibilities of lawyers in the community” (Schedule 3, Professional Examinations in Law Regulations 2008). The extent to which legal ethics permeates any other courses in the law degree depends upon individual teachers.

We are not aware that any law schools require law students to make any kind of pledge to uphold legal and social values either upon entry to, or graduation from, law school. This likely reflects the fact that the law degree is considered a general degree and many graduates do not seek admission to practice.

Graduates who do seek admission must complete the Professionals course, which is offered by two private providers. Candidates must be deemed competent in ethics to pass the Professionals course. The teaching of ethics is this course is generally integrated into practical problems. For example, a candidate might be required to write a memorandum to a partner in a mock property transaction, and one of the requirements to pass would be to identify ethical issues such as a conflict of interest and advise on how to address the problem.

While there is a requirement that lawyers complete continuing professional development, there is no requirement that this include a component in legal ethics. Lawyers are required to self-identify their learning needs and then develop a learning plan that meets these needs[3].

8.3. Lawyers’ admission ceremony and oath

Lawyers are admitted in a ceremony in the High Court and take the following oath in accordance with s 52 of the Lawyers and Conveyancers Act 2006: “I, AB, swear that I will truly and honestly conduct myself in the practice of a barrister and solicitor according to the best of my knowledge and ability.” At the end of the ceremony the Judge reads out the candidates’ names and states that they are “duly qualified and of good character and a fit and proper person to be admitted as a barrister and solicitor of this Court”. Rule 2 of the Client Care Rules state that “A lawyer is obliged to uphold the rule of law and to facilitate the administration of justice” and their overriding duty is as an “officer of the court”.

There is no equivalent to a legal Hippocratic oath and we have no basis for suggesting whether or not lawyers in New Zealand would support adopting one, as there are no opinion surveys or other consultation available. Similarly, it is unknown whether there would be an appetite for a global or regional code to govern lawyers’ conduct. If such an amendment was adopted, it would require legislative change.

8.4. Pro bono activities

The Client Care Rules do not include any requirement for carrying out pro bono work. A recent report found resistance in the profession to the idea of mandatory pro bono[4]. An aspirational target of 35 hours per year has been mooted by the President of the NZLS. Presently, most lawyers’ contributions would fall well short of that target as a report found 26.99% of lawyers are doing no pro bono and 58.6% are doing some pro bono, but less than 35 hours per year[5].

8.5. Lawyers participation in legislative activities

Lawyers are actively involved in lobbying for changes to substantive law and resisting changes that would harm the public. The NZLS has 16 law reform committees that make submissions on law reform[6]. While not all lawyers regard involvement in such efforts to be an ethical duty, there are many who do.

8.6. Promising initiatives and innovations strengthening professional identity and ethics

In October 2019 the NZLS announced it will carry out an independent strategic review of its structure and function which will include a review of the Lawyers and Conveyancers Act 2006. This review will be a long-term endeavour expected to take three to five years at a minimum.  Any recommendation for legislative change will need to go through the normal process involving the Ministry of Justice and seeking approval from the Minister of Justice. This decision to conduct an independent review reflects the constraints the current Act places on the NZLS’s ability to be transparent about its complaints process, and to deal with a broad range of unacceptable behaviour, including complaints of sexual harassment and bullying within the profession. The Act also continues a ‘dual’ model for the NZLS, regulating lawyers and providing membership services for them, and the review recognises that it is time to reflect on whether this is the optimal model. The review is expected to draw on local and international experiences to consider possible future models for the provision and regulation of legal services in New Zealand, as well as the best model to provide membership services to practising lawyers. The catalyst for this review was the findings from the NZLS’s working group and its survey (both set up in 2018) which identified widespread bullying and sexual harassment in the legal profession[7].

9. TECHNOLOGY INNOVATION AND ACCESS TO JUSTICE

9.1. Access to technology

Access to technology in New Zealand is generally high, but it is not universal. Surveys carried out since 2012 estimate that access to the internet ranges from 91-93%. This includes access to household internet connections (­≈ 80%) and reliable mobile internet connections (≈ 3.85 million) (InternetNZ, 2017).

Broadband access had reached 79 per cent of New Zealanders by November 2019, according to a November 2019 announcement by the Minister of Broadcasting, Communications and Digital Media[1]. The Government aims to reach 87% broadband coverage by 2025. A Rural Broadband initiative by the government-owned Crown Infrastructure Partners, aims to improve access in rural areas[2].

Mobile and smart phone use is also high. Statistics New Zealand reports that New Zealand had 3.8 million mobile phones with active internet connections at 30 June 2017. This was up 11 percent from the same time in 2016[3]. A 2019 report drawing on ‘Google Consumer Barometer Data’ estimated that 81 per cent of New Zealanders have a smartphone[4].

Digital exclusion persists in some communities despite the broad coverage. New Zealand’s 2018 census said that 211,000 households (13%) do not have internet access at home. These groups include seniors, people with disabilities, people living in rural communities, families with children in low socio-economic communities, migrants and refugees, and offenders and ex-offenders. Māori and Pasifika have also been identified as being more likely to be digitally excluded than the general population[5]. A 2018 report delved into these numbers further based on interviews with communities experiencing digital exclusion[6]. The report noted that digital exclusion disproportionately affects people already experiencing social exclusion, for example loss of online contact can cause people to lose contact with welfare providers and be cut off from financial entitlements. Barriers to digital access included cost (subscriptions and devices), physical accessibility (including the need for adapted devices), skills, motivation and trust.

To improve digital inclusion, the New Zealand Government introduced a Digital Inclusion Blueprint in March 2019. This blueprint sets out the vision for a digitally included New Zealand and the steps required to ensure that digital transformation does not exclude any sectors of society. Digital inclusion is defined as “having convenient access to, and the ability to confidently use, the internet through devices such as computers, smartphones and tablets”[7]. Central government sees its role in realising this vision in four parts: (1) leading future directions; (2) connecting people, funders, and initiatives; (3) providing support to those working to address digital inclusion; and (4) delivering services.

9.2. Technology in the delivery of non-legal public services

Digital services in New Zealand’s public sector are increasing, creating a generally positive environment for digital innovation in the public sector. People can perform many administrative tasks online, for example tax filing, company filing, and passport applications. Justice-related areas such as those related to tenancy and employment issues have dedicated government websites with resources and links to sources of help.

Significant digital achievements are described at the Government’s <www.digital.govt.nz> website. Recent successes include multi-agency collaborations such as SmartStart, a consolidated digital service to guide individuals through the steps involved in pregnancy and early childhood[8], and the world’s first fully online passport renewal service[9]. There have also been facilitative initiatives such as appointing a Government Chief Privacy Officer to help government agencies manage privacy and security more effectively.

New Zealand’s health sector has its own digital health strategy[10]. Developments from a patient point of view include increasing use of patient portals through which patients can access their health information and interact with their general practice. As of September 2019, 898,132 people in New Zealand were using patient portals offered by 653 general practices. Of these 118 practices offer open clinical notes, 30 can offer video conference consults, and 310 offer access to laboratory results[11]. There is also a well-used national 24/7 health line, which acts as a triage service and enables people to speak to a nurse over the phone.

9.3. Technology in the practice of law

9.3.1. Law firms

Adoption of technology seems to be gathering momentum among New Zealand law firms, with some pockets of innovation and new products entering the market. However the authors are not aware of any specific research quantifying legal practitioners use of technology for business purposes. Productivity tools (e.g. Microsoft Office packages, file and time management, document preparation) are commonplace in most legal offices, and some larger law firms run sophisticated bespoke file management and trust accounting systems. Some legal practices have used technology for service innovation. A network called Legal Tech NZ has been set up to facilitate the development and adoption of legal technology in New Zealand[12]. There is an annual LawFest event which showcases new technology for legal practice. This includes technology to support new forms of service delivery to clients as well as technology for managing client matters or collaborating with other professionals. Information about the extent to which law firms are investing in such newly available products is not available.

9.3.2. Community providers

New Zealand has two key providers of legal services or legal information to low income clients: Community Law Aotearoa and Citizens Advice Bureau. Community Law Aotearoa is an umbrella organisation for local Community Law centres throughout New Zealand, which focuses on in-person clinics but also provides online information. Citizen’s Advice Bureau is a national network with in-person drop in centres and a strong online presence. It specialises in general rather than legal advice but much of its advice necessarily involves legal content. Both organisations are under significant resource pressure, which makes innovation and adoption of technology difficult.

Citizen’s Advice Bureau has a national knowledge management system/intranet, which is the main source of information used by its volunteer advisers. It recently launched an improved website featuring a question and answer style information service that draws on the intranet knowledge base. The website includes an online chat service[13]. In 2019 the website and intranet were shortlisted for two Designers Institute of NZ “Best Design Awards”: the Public Good Award and the User Experience Award.

Community Law publishes its comprehensive Community Law Manual as both a hardcopy book and a free online resource[14]. Community Law’s YouthLaw section, which provides free legal services to young people, takes enquiries via email and phone.

Community Law Wellington has established a separate non-profit company, Citizen AI, a charitable company that researches, develops, and promotes artificial intelligence systems for public benefit[15]. Citizen AI has developed chat bots to provide legal information. “Rentbot” provides legal information for tenancy issues while “Workbot” is under development to provide legal information for employment issues. The bots do not offer legal advice, which can only be offered by a practising lawyer.

New Zealand does not have a technology-based referral system for legal and pro bono services, or digital assistance for self-represented litigants (apart from basic online information about using courts and tribunals). The Ministry of Justice website has a basic online service to help individuals find legal aid lawyers.

Some advocacy and community action groups use social media and online petition platforms to campaign and enlist public support for causes, particularly to rally support for emerging issues. Examples include the platform operated by ActionStation Aotearoa (<www.ouractionstation.org.nz/>) and local use of the global platform (<www.change.org>). New Zealand’s Parliament also operates an online platform on which any New Zealander can host a petition to the House of Representatives.

9.4. Online dispute resolution

New Zealand is increasingly introducing elements of online dispute resolution. The Government has set up the Government Centre for Dispute Resolution (GCDR) to provide cross-government leadership to sectors that develop dispute resolution schemes. The GCDR intends to use data analytics and experience to promote best practice dispute resolution.

We are now beginning to see elements of online dispute resolution emerging in New Zealand Tribunals. An example is the Tenancy Tribunal, which is responsible for resolving disputes between tenants and landlords. As of November 2018, the three tiers that we expect in an online court were operational – or at least provided for – in the Tenancy Tribunal. The Tribunal had introduced a front-end online portal for filing an application, which applicants are strongly encouraged to use instead of the paper forms. The parties are then automatically referred to a mediation service (parties must opt out, not in), which is facilitated by the Tenancy Mediator and usually occurs over the telephone. If the parties cannot resolve the dispute, they proceed to the Tenancy Tribunal. While currently this is a physical space it need not be as reforms in 2018 state:

The hearing of a matter of any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Tenancy Adjudicator conducting the hearing considers it appropriate and the necessary facilities are available. (Section 96(3A) of the Residential Tenancies Act 1986 (inserted via sweeping reforms created by the Tribunals Powers and Procedures Legislation Act 2018))

Similar amendments are beginning to emerge in the Disputes Tribunal, which is responsible for the resolution of small claims up to the value of $30,000. Again, applicants can choose to file their dispute using the online form, rather than the paper-based form.

Another example is FairWay, which has partnered with Tyler Technologies to deliver Modria online dispute resolution software in New Zealand. FairWay’s team assists organisations with the design and implementation of “customised automated online resolution pathways” through which the Modria platform triages and channels disputes. FairWay also provides mediators, arbitrators and adjudicators for “disputes that require an independent intervention”[16].

Despite a focus on online dispute resolution and courts in the jurisdictions we usually look towards – such as England, Australia, and Canada – there has been limited discussion in New Zealand. The Ministry of Justice frequently speak to the “five-year modernisation roadmap”, which includes a technology overhaul but this has not included an overt discussion of an online court.

9.5. Information and assistance

Assistance for court and tribunal users is generally confined to traditional means; innovation is limited to websites that provide information about each step in the process and contact numbers for general enquiries. There are some small innovations such as a Ministry of Justice text message reminder service to remind people of their court dates. Notably, on each court and tribunal webpage there is a “related links” section, which directs the user to the Community Law Centre or Citizens Advice Bureau. This encourages those who are navigating the process without the help of a lawyer to seek substantive help from these external providers, as opposed to the tribunals themselves.

The courts and tribunals provide some assistance to people with accessibility needs. For example, an independent interpreter will be provided, free of charge, if required. In the Disputes Tribunal, an applicant can appear with a lawyer (which is usually not allowed) if the applicant has a disability that makes communication difficult, or there is some other good reason. Similar assistance is made available in the Courts. For example, if a person needs to speak with registry staff at the counter but cannot communicate in English, a telephone-based interpreter can be made available. A case can be heard in an accessible court room if a person has a mobility problem and court documents can be provided in Braille for people with vision impairment. The Superdiversity Institute of Law, Policy and Business released a report in 2019 which looks at the “unique issues and challenges faced by courts, judges, lawyers, prosecutors and interpreter to ensure equal access to justice for culturally, ethnically and linguistically diverse parties in the courts”. The study focusses on Chinese litigants and defendants in particular[17].

As New Zealand increases its use of online dispute resolution, it will need to consider the accessibility of online systems. Such consideration could draw on the digital inclusion blueprint mentioned earlier in this section[18].

9.6. Successful use of technology to provide legal services in innovative ways

Few New Zealand law firms have ‘broken the mould’ to deliver legal services in innovative ways. Firms have adopted technology primarily for productivity improvements, such as electronic discovery software and contract reviewing software, and sophisticated time recording and document storage systems. The absence of innovation may be particularly felt by the ‘person in the street’ who cannot afford traditional legal services or who finds the traditional means of obtaining legal services daunting.

While some firms are attempting to innovate and find solutions to these issues, no profession-wide trend has emerged.  Examples can be found of firms adopting software and technology to enable them to service clients remotely, for example rural clients or vulnerable clients. One such firm, Portia[19] has direct audio-visual links to a women’s refuges. Other firms are developing and marketing their own automated services and using them to service clients or to sell solutions to other law businesses. An example is Legal Beagle, which allows users to create personalised legal documents for business and family issues through an automated question and answer-based programme called Automio[20].

New Zealand has seen the arrival of websites that help people with routine court matters, such as applications for a limited driving licence following a driving conviction and loss of licence. While these services are relatively affordable and accessible, they are problematic in that they are unregulated and often anonymous, which leaves users without recourse if something goes wrong. These websites may be harbingers of more unregulated technological services filling the vacuum left by an under-innovative profession. New Zealand’s regulatory framework may be unprepared to oversee such services from a quality and accountability perspective.

While examples of innovation and entrepreneurialism remain the exception in New Zealand’s legal profession, the conditions for improvement are positive. The profession can draw on New Zealand’s strong and innovative digital economy, which has grown many successful service and digital businesses in other sectors. The tools and skills are available; what is needed is the motivation to improve services to those who find it difficult to access legal services in their traditional form.

10. UNMET LEGAL NEEDS 

10.1. Nation-wide unmet needs studies

In 2006, the Legal Services Agency conducted a nationwide survey on access to legal services and the extent of unmet legal need[1]. A random sample of 7,200 New Zealanders, aged 15 years and over, were interviewed via a telephone survey. The findings revealed that approximately 29% of New Zealanders had experienced at least one problem, which might have required legal services to resolve, in the preceding 12 months. Consumer disputes were the most commonly raised as a problem (10% of the population), with disputes involving money and debt also being identified as a serious problem (8% of the population). Other problems included: welfare benefits (7%), housing and land (6%), family/relationships (5%), employment (5%); or other (6%). Almost a quarter of the population with problems (23%) experienced two problems in the preceding 12 months, with a further 17% of people experiencing three of more problems. The authors of the report estimated that in the proceeding 12 months, 900,000 New Zealanders had experienced a total of approximately 1.8 million problems that could require legal services to resolve.

Almost half of the respondents with problems (48%) said that they either had, or intended to, seek help of advice for their most serious problem. On average, respondents accessed 2.5 different sources of help to resolve their problems, which most commonly included: Family and friends (34% of respondents seeking helping); doctor or health professionals (23% of respondents seeking helping); and private lawyer (23% of respondents seeking helping). The not-for-profit agencies were also often approached (Community Law Centre: 11%; Citizens Advice Bureau: 16%).

Over half of the respondents did not, or do not intend to, seek help for their problem (52%). The biggest barrier to accessing help was that the respondent would prefer to deal with it themselves. Other reasons included: the problem did, or the respondent was optimistic it would, resolve itself; the problem was not perceived to be serious enough; family disputes should be kept private; induced health-related problems; loss of confidence; loss of income. Notably, over a quarter of people with problems (27%) reported that cost concerns prevented them from approaching a lawyer or to see whether they could get legal aid.

In 2018, New Zealand undertook a second survey of legal needs, both among the general population as well as a targeted survey with low income households (< $34,000/per year for individuals or < $72,000/year for individuals supporting one or more financial dependents). This survey remains embargoed for reasons that are not clear. In any case, due to the methodology, these surveys are not directly comparable. For example, the sample size in the 2018 survey was very small, so raises concerns about the generalisability of the findings. Further, the 2006 survey asked respondents about problems in the previous 12 months; whereas, the 2018 survey asked respondents about problems in the previous 24 months. We therefore cannot say anything definitive about whether New Zealanders’ legal needs have increased or decreased across that time span.

10.2. Areas where rules of state not enforced

There are no areas of New Zealand where the laws are not, or are prevented from being, enforced.

11. PUBLIC LEGAL EDUCATION

11.1. Public legal education providers

Public legal education in New Zealand is provided by NGOs, the public sector, and assorted groups such as unions, advocacy networks and law student groups. Compared to prevalent public health or safety education programmes. There is very little in the way of public legal education campaigns. For these actively looking for information, there is a considerable amount of free online legal information on government and community organisation websites which is generally good qualify, albeit basic. There is a need to improve access to legal education, particularly for groups such as those with low levels of literacy and those whose first language is not English.

11.1.1. Non-Government Organisations

NGOs providing legal education include Community Law Centres (see sections 5.3 and 9.3.2 for detail) which provide resources for people to run their own education sessions. Some CLCs provide education for their local communities and some have a specialist focus and provide legal education to targeted group. Youthlaw Aotearoa provides free education sessions to groups of children and young people or those working with them. The topics are those relevant to youth, for example: sex and consent, cyberbullying, rights with police. The Māori Law Centres provide workshops on various issues for Māori, particularly in relation to Māori land law. Youthlaw and the Māori Law Centres also provide advice and advocacy.

There are also some law student groups who work with Community Law Centres to provide legal education for the general public. For example, students from the University of Otago Faculty of Law run public talks about the law at a local city library as part of Community Law Otago’s legal education programme, and run a weekly local radio show which is also podcasted covering topics like tenancy issues, employment rights and consumer law.

11.1.2. Public sector provision of legal information

The government ministries run their own websites which have legal information relating to their portfolio area. For example, there are government-run webpages covering areas such as tenancy rights, consumer rights, employment rights, access to tribunals, and appeals. The websites focus on written descriptions but some include videos, webinars, template forms and letters. For some areas of legal information there are free helplines available for telephone advice, for example tenancy law and immigration.

11.2. Legal education in the school system

At primary school, legal issues are not part of the compulsory curriculum but are an optional part of the social studies curriculum and may be covered briefly in some classes. The secondary school qualifications framework includes legal studies but few students take the subject. This is likely because legal studies is not a core paper for the purposes of university entrance and while it can count towards university entrance in limited circumstances, it is not an ‘approved’ subject. In 2018, only 500 of the 140,000 students sitting secondary qualifications took legal studies.

There is current debate on the need to include some type of civics education in the high school curriculum as lack of awareness of the legal system is recognised as a barrier to access to justice. Implementing an increase in uptake would not be straightforward, however. Legal Studies falls outside the suite of compulsory subjects that schools are required to offer, and can be taught only where schools employ suitably qualified or interested teachers, and where there is sufficient demand. It is highly unlikely that legal studies would form part of the compulsory high school curriculum under the current system. Other means of including some form of civics education would also need structural change to the current system.

11.3. Likelihood that a non-legally trained member of the public could adequately read and comprehend New Zealand laws

The Parliamentary Counsel Office aspires for legislation to be in plain language[1]. The Office aims to make New Zealand’s legislation more accessible to all (especially online), improve the legal effectiveness of that legislation, and make plain language the standard for how the whole office communicates.

New Zealanders who have had the benefit of a secondary education would be able to understand the surface level meaning of recent legislation, because it is drafted in plain language, and most government departments disseminate plain language information about commonly applied laws under their purview. This would help many people understand straight forward legal issues, if still liable to misdirection when navigating a statute. However, significant pockets of low literacy exist in New Zealand and even laws in plain language can be hard for an untrained person to interpret accurately. Vulnerable groups who are unrepresented and need supported access, may not be able to read and comprehend New Zealand’s laws.

According to the OECD Survey of Adult Skills (PIAAC), adults in New Zealand score above the OECD average in literacy[2]. However, a significant proportion do not currently have good literacy. 11.8% of adults in New Zealand attain only Level 1 or below in literacy proficiency (a smaller proportion than the average of 18.9% of adults across OECD countries). At Level 1 in literacy, adults can read brief texts on familiar topics and locate a single piece of specific information identical in form to information in the question or directive. The differences in skills proficiency related to age, gender, education and social background are less pronounced in New Zealand than in other countries. However, sharp ethnic differences, particularly for Māori and Pacific peoples, exist in New Zealand.

Despite efforts to provide plain language legislation and information, it is likely that significant groups will insufficiently comprehend the laws applicable to their problems and disputes.

11.4. State public information/awareness campaigns on the right to legal aid

Information about legal aid is available online, for example at the Ministry of Justice website and community information websites, as well as at community centres and locations where people might need legal aid. Determining whether you qualify for legal aid using this information is very difficult, particularly for civil legal aid, and assistance from a lawyer would normally be needed. There are no campaigns to raise awareness of entitlement to legal aid.

11.5. General public awareness of legal aid and other legal support services

There is no research available on levels of awareness. Anecdotally, people are aware that legal aid exists but believe it gives greater coverage than it actually offers. There is also limited awareness that obtaining civil legal aid services is difficult in practice. For example, the information about legal aid on the Ministry of Justice website explains the law and availability of legal aid but not the practical difficulties of obtaining legal aid that we discussed above. Research by the University of Otago Legal Issues Centre has found difficulties with obtaining civil legal aid that are probably not well understood, particularly the increasingly low numbers of lawyers providing civil legal aid[3].

12. GLOBAL EFFORTS ON ACCESS TO JUSTICE

New Zealand does not have any significant global or regional access to justice efforts focused within its jurisdiction.

12.1. Non-governmental organizations on Access to Justice in New Zealand

International NGOs, for example, Amnesty International, may campaign on justice-related issues from time to time. We are not aware of any current, significant, NGO collaborations on access to justice issues.

12.2. Steps being taken to articulate and elaborate Sustainable Development Goal 16.3 in New Zealand

In 2019 New Zealand published its first Voluntary National Review of the UN’s Sustainable Development Goals (SDGs). The review of SDG 16 – Peace, Justice and Strong Institutions, notes:

Transparency International has ranked New Zealand as one of the least corrupt and most trustworthy countries in the world. We are well aligned on participatory and representative decision making, legal identity and ensuring public access to information, and have policies and practical actions in these areas[1].

The review also recognises significant challenges to fulfilling the vison encapsulated in SDG 16, including that Māori and Pacific peoples have experienced longstanding disparities in the area of justice. Other groups facing “discrimination and other challenges” include the LGBTIQ+ community, new migrants to New Zealand, and New Zealanders with disabilities[2]. Significant specific challenges are New Zealand’s high reported rates of family and sexual violence, which are among the highest in the developed world, and the over-representation of Māori in New Zealand’s prison population[3]. The review records that New Zealand’s SDG 16 initiatives are focused on the wellbeing of children and whānau and are “dedicated to a long term and systematic approach to end family violence and sexual violence”[4].

The review recognises that improving access to justice is a “key challenge” facing New Zealand’s justice system and notes that “some New Zealanders are less likely [than others] to seek help when they have a problem that would benefit from legal services”[5]. The review refers to the New Zealand Government’s 2018 review of the legal aid system which included examining the income thresholds for eligibility and the need to repay legal aid.

In the non-government sector, Transparency International New Zealand (TINZ) is monitoring New Zealand’s response and progress to the SDGs[6]. TINZ records “much discussion but little tangible action in relation to understanding the SDGs and how they apply to New Zealand.  TINZ’s main focus is SDG 16.5 (Integrity: Substantially reduce corruption and bribery in all their forms), not 16.3 (Access to Justice). We are not aware of any groups specifically monitoring progress on 16.3.

13. CONCLUSION

Access to justice does not generally feature as a policy priority in mainstream discourse, but it has been a significant focus of the legal community and of the sectors of the government directly involved in administering justice. As a small, unitary democracy, New Zealand is able to be flexible and creative in responding to access to justice problems. The Rangatahi (Māori youth court) and the Canterbury Earthquake list, are examples of such innovative and responsive approaches. New Zealand has also been world-leading in the granting of legal personhood to natural features, which is a promising means of more broadly conceiving access to justice.

The flexible and creative approaches to problem solving can, however, also result in policies and initiatives that sacrifice core principles such as access to the courts and open justice. This has been a feature of both the civil and criminal system. In civil justice the removal of rights to counsel and the emphasis on mediation and other confidential dispute resolution, while the subject of only limited empirical study, is thought to act against the interests of the less powerful. Within the criminal justice system, informal means to resolving cases and low legal aid payments are thought to be incentivising guilty pleas, rather than protecting the right to trial and the presumption of innocence.

There are also significant structural problems that affect access to justice. Social inequality and discrimination against Māori and Pasifika are reflected in high incarceration rates for these groups. Underfunding and cumbersome administration of legal aid, along with high prices in the legal services market, have meant that a significant portion of the population do not have access to legal assistance.

The emphasis on access to justice as a guiding principle in systemic reform is, however, a reason for optimism. The summits held, in 2019 on criminal access to justice and in 2020 on civil access to justice, show a genuine commitment on the part of government to address concerns. Similarly, the current consultation on procedural reform in the civil system, which is guided by access to justice concerns, demonstrates the importance being placed on access to justice. While there is much room for improvement, there is also a growing understanding and interest in the importance of ensuring all New Zealanders can access justice.

BIBLIOGRAPHY

[1] Aotearoa is the Māori name for New Zealand and is often used in conjunction to with “New Zealand” as a name for the country.

[2]  See: <www.teara.govt.nz/en/treaty-of-waitangi/page-7>

[3] See: <www.teara.govt.nz/en/treaty-of-waitangi/page-7>

[4] It is of note that a number of the requested indicators (income inequality, life expectancy) will be reported differently from 2019. New Zealand is developing well-being indicators to track New Zealand’s progress. This set of indicators will build on international best practice and be tailored to New Zealand, and will go beyond economic measures, such as GDP, to include wellbeing and sustainable development. For more information, see Ngā Tūtohu Aotearoa – Indicators Aotearoa New Zealand at <www.stats.govt.nz/tereo/topics/well-being>.

[5] All dollar values in this report are in NZD unless otherwise stated.

[6] For example, a P80/20 of 3.0 indicates that the incomes of individuals in households at the top of the 80^th percentile are three times higher than for those at the top of the 20^th percentile.

[7] Bryan Perry “Household incomes in New Zealand: Trends in indicators of inequality and hardship 1982 to 2017” Ministry of Social Development, October 2018.

[8] Bryan Perry “Household incomes in New Zealand: Trends in indicators of inequality and hardship 1982 to 2017” Ministry of Social Development, October 2018, p 94.

[9] Statistics New Zealand.

[10] United Nations Development Programme.

[11] See: <www.hdr.undp.org/en/countries/profiles/NZL>

[12] See: <www.hdr.undp.org/en/countries/profiles/NZL>

[13] This translates as “The Māori Land Law Act 1993” (Whenua = “land” and Ture = “law” – see John C Moorfield, Te Aka Online Māori Dictionary <www.maoridictionary.co.nz>.

[14] Extended family, family group … the primary economic unit of traditional Māori society (Te Aka Online Māori Dictionary).

[15] Kinship group, clan, tribe, subtribe – section of a large kinship group and the primary political unit in traditional Māori society. It consisted of a number of whānau sharing descent from a common ancestor (Te Aka Online Māori Dictionary).

[16] See: <www.maorilandcourt.govt.nz>

[17] Youth (Te Aka Online Māori Dictionary).

[18] Traditional meeting house/gathering place.

[19] Male elder (Te Aka Online Māori Dictionary).

[20] Female elder (Te Aka Online Māori Dictionary).

[21] Welcome ceremony (Te Aka Online Māori Dictionary).

[22] Reciting one’s lineage.

[23] Customary (Te Aka Online Māori Dictionary).

[24] For example, see: Bridgette Toy-Cronin et al “Wheels of Justice: Understanding the Pace of Civil High Court Cases” (2017) University of Otago Legal Issues Centre, where concerns about the validity of the Ministry data was raised.

[25] See s 30 of the Lawyers and Conveyancers Act 2006 and its supporting regulations.

[26] Geoff Adlam, “Diversity in the New Zealand Legal Profession: at a Glance”, LawTalk, September 2019, pp 61-68.

[27] Geoff Adlam, “Diversity in the New Zealand Legal Profession: at a Glance”, LawTalk, September 2019, pp 61-68.

[28] For further details, see: University of Otago Legal Issues Centre “Accessing Legal Services: The Price of Litigation Services”, pp 12-14.

[29] See: Judge Andrew Becroft, “The Rise and Rise of Lay Advocates in Aotearoa New Zealand” Conference Presentation to the National Youth Advocates/Lay Advocates Conference, 13-14 July 2015.

[30] See: Tracey Cormack “McKenzie friends: There’s more of them, but what do they actually do?” LawTalk 923, 9 November 2018.

[31] Available at: <www.nzsconveyancing.co.nz>

[32] See: <www.nzsconveyancing.co.nz>

[33] See: <www.nzile.org.nz>

[34] Available at: <www.courtsofnz.govt.nz/about-the-judiciary/role-judges/appointments>

[35] Geoff Adlam “New Zealand’s Judiciary at 14 March 2019” LawTalk 927, 5 April 2019.

[36] Geoff Adlam “New Zealand’s Judiciary at 14 March 2019” LawTalk 927, 5 April 2019.

[37] R v Te Kira [1993] 3 NZLR 257 (CA), the defendant was detained for about four hours, during which time he could have been taken before court. He was not taken before the court because the police were pursuing inquiries to establish whether he could be charged with a more serious offence arising out of the situation that had resulted in his arrest. This was held to be in breach of s 23(3) of the NZBORA.

[38] For critiques on these processes, see: Sian Elias Fairness in Criminal Justice: Golden Threads and Pragmatic Patches (Cambridge University Press, Cambridge, 2018) chapter 3.

[39] Ronald Young “Has the New Zealand criminal justice system been compromised?” (2016) 24 Waikato Law Review 1.

[40] See: <www.mfat.govt.nz/assets/Uploads/New-Zealand-Third-National-UPR-Report-as-submitted-to-UN.pdf>

[41] See: <www.justice.govt.nz/courts/going-to-court/without-a-lawyer>

[42] Courts of New Zealand, Judicial Settlement Conferences: The High Court Guidelines, April 2012.

[43] For more detail see: Nina Khouri “Civil justice responses to natural disaster New Zealand’s Christchurch High Court earthquake list” (2017) 36(3) Civil Justice Quarterly 316.

[44] Toy-Cronin, B., Irvine, B., Stewart, K., & Henaghan, M. (2017), The Wheels of Justice: Understanding the Pace of Civil High Court Cases (Project Report).

[45] Grant Morris and Annabel Shaw Mediation in New Zealand (Thomson Reuters, Wellington, 2018), p. 42.

[46] Claire Baylis “Reviewing Statutory Models of Mediation/Conciliation in New Zealand: Three Conclusions” (1999) 30 Victoria University of Wellington Law Review 279.

[47] Rachael Schmidt-McCleave and Julia Caldwell “ADR clauses and the courts” (2013) November New Zealand Law Journal 384.

[48] Grant Morris and Annabel Shaw Mediation in New Zealand (Thomson Reuters, Wellington, 2018, p 194.

[49] Ministry of Justice, Te Korowai Ture ā-Whānau: The final report of the Independent Panel examining the 2014 family justice reforms, May 2019.

[50] See paras 197 and 199 of the report.

[51] See: <www.gccrs.govt.nz>

[52] See: <www.fairwayresolution.com>

[53] For an explanation of the scheme see: <www.acc.co.nz>

[54] Hazel Armstrong, ‘Workplace safety and accident compensation – Accident compensation’, Te Ara – the Encyclopedia of New Zealand, <www.TeAra.govt.nz>

[55] See: Forster, W., Barraclough, T. and Mijatov, T. (22 May 2017) Solving the Problem: Causation, transparency and access to justice in New Zealand’s personal injury system.

[56] Hon David Parker, “Chief District Court Judge appointed” Press Release, 25 September 2019.

[57] Available at: <www.justice.govt.nz/assets/Documents/Publications/Ministry-of-Justice-statement-of-intent-2018-to-2023.pdf> at p. 5.

[58] Jenni McManus “Attorney-General calls for more pro bono work” ADLS, 13 September 2019.

[59] Available at: <www.justice.govt.nz/assets/Documents/Publications/hapaitia-summit-playback.pdf>

[60] See: <www.safeandeffectivejustice.govt.nz>

[61] Justice Helen Winkelmann, Chief High Court Judge “Access to Justice – Who Needs Lawyers?” Ethel Benjamin Address, Dunedin, 7 November 2014.

[62] Justice Geoffrey Venning “Access to Justice – A Constant Quest” Address to the NZBA Conference, Napier, 7 August 2015.

[63] Justice Stephen Kós “Civil Justice: Haves, Have-nots and What to Do about Them” Address to the Arbitrators’ and Mediators’ Institute of New Zealand and International Academy of Mediators Conference, Queenstown, March 2016.

[64] Sir Ron Young “Has New Zealand’s Justice System Been Compromised” 25th Annual Harkness Henry Lecture, Waikato University, 7 September 2016.

[65] See: <www.otago.ac.nz/legal-issues/publications/index.html>

[66] See: <www.stuff.co.nz/business/119196703/no-silver-bullet-for-fairer-access-to-civil-justice-says-chief-justice>

[67] See, for example: <www.newsroom.co.nz/2018/08/21/202148/much-talk-some-action-at-justice-summits-first-day> and <www.thespinoff.co.nz/atea/29-08-2018/the-criminal-justice-summit-a-talk-fest-where-maori-men-went-unheard/>

[68] Kayla Stewart and Bridgette Toy-Cronin, “The New Zealand Legal Services Mapping Project: Finding Free and Low-Cost Legal Services Pilot Report” (University of Otago Legal Issues Centre, 2018).

[69] Wellbeing Budget, New Zealand Government, 2019.

[70] See: <www.justice.govt.nz/assets/Documents/Publications/Legal-Aid-Forecast-Oct2015final.pdf>

[71] Ronald Young “Has the New Zealand criminal justice system been compromised?” (2016) 24 Waikato Law Review 1.

[72] See: Deborah Morris “Public defenders or private: battle lines are drawn”, 18 June 2011, <http://www.stuff.co.nz/national/5160855/Public-defenders-or-private-battle-lines-are-drawn>. See also Sian Elias “Fairness in Criminal Justice: Golden Threads and Pragmatic Patches” (Cambridge University Press, Cambridge, 2018), chapter 3.

[73] This graph depicts a proxy measure of how many criminal cases are funded using the legal aid scheme. The Ministry of Justice data for individuals charged with an offence only counts a person once per calendar year. This therefore might underestimate the number of individuals charged within a calendar year. For example, a person might have been charged for disorderly conduct and then burglary across two separate incidents in 2018. The data will only count this person once in 2018, and for the most serious offence of burglary. Further, individuals might apply for a legal aid grant to bring an appeal or parole hearing. This data is not reported in a way that enables us to tease out what step in the legal process the grant is available for. We therefore cannot directly compare the number of grants awarded against the people charged with an offence.

[74] New Zealand Bar Association Working Group on Access to Justice Access to Justice: Āhei ki te Ture (New Zealand Bar Association, 2018).

[75] Kayla Stewart and Bridgette Toy-Cronin “The New Zealand Legal Services Mapping Project: Finding Free and Low-Cost Legal Services Pilot Report” (University of Otago Legal Issues Centre, 2018).

[76] Kayla Stewart and Bridgette Toy-Cronin “The New Zealand Legal Services Mapping Project: Finding Free and Low-Cost Legal Services Pilot Report” (University of Otago Legal Issues Centre, 2018), at 13.

[77] The information in the tables on these pages is from the Ministry of Justice <www.justice.govt.nz/justice-sector-policy/research-data/justice-statistics/data-tables> Data on the number of applications/approvals, and the income level of applicants for legal aid, is not available.

[78] See: <www.justice.govt.nz/courts/going-to-court/court-fees>

[79] “Taking a case of a value less than $50,000 might not be worth it” <www.lawsociety.org.nz/news-and-communications/latest-news/news/costs-in-civil-cases-what-happened-in-taylor-v-roper>

[80] Justice Helen Winkelmann, Chief High Court Judge “Access to Justice – Who Needs Lawyers?” Ethel Benjamin Address, Dunedin, 7 November 2014.

[81] Toy-Cronin, B. (2019). Explaining and changing the price of litigation services. New Zealand Law Journal, 9, 310-319.

[82] Available at: <www.courtsofnz.govt.nz/about-the-judiciary/rules-committee/access-to-civil-justice-consultation>

[83] See: <www.lawsociety.org.nz/practice-resources/the-business-of-law/access-to-justice/litigation-funding-and-class-actions>

[84] Nikki Chamberlain “Class Actions in New Zealand: An Empirical Study” 24(2) NZBLQ 132-165.

[85] Ross v Southern Response Earthquake Services Limited [2019] NZCA 431 at [55].

[86] See: <www.lawcom.govt.nz/our-projects/class-actions-and-litigation-funding>

[87] See: <www.mfe.govt.nz/more/funding/environmental-legal-assistance-fund>

[88] For a comprehensive review of the New Zealand regime see: Selene Mize “New Zealand: Finding the Balance between Self-Regulation and Government Oversight” in A Boon (ed) International Perspectives on the Regulation of Lawyers (2017).

[89] Kate Diesfeld and Marta Rychert, “What disciplinary decisions reveal about practitioners’ health” Auckland District Law Society News, 7 December 2018.

[90] Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education—Continuing Professional Development) Rules 2013, r 5.

[91] Stewart, K., Toy-Cronin, B., & Choe, L. (2020). New Zealand lawyers, Pro Bono, and Access to Justice (Civil Justice Insight Series).

[92] Stewart et al, New Zealand lawyers, Pro Bono, and Access to Justice, at 13-14.

[93] See: <www.lawsociety.org.nz/law-society-services/law-reform>

[94] Report of the New Zealand Law Society Working Group November 2018 < www.lawsociety.org.nz/__data/assets/pdf_file/0007/129922/Report-of-the-NZLS-Working-Group-December-2018.pdf>

[95] See: <www.beehive.govt.nz/release/nz-top-10-connected-nation-stage-one-ultra-fast-broadband-roll-out-completed>

[96] See: <www.crowninfrastructure.govt.nz/rural>

[97] See: < www.archive.stats.govt.nz>

[98] See: <www.nzdmi.co.nz/blog/new-zealand-mobile-trends>

[99] ‘Digital New Zealanders: The Pulse of our Nation’, Digital Inclusion Research Group, 2017.

[100] Out of the Maze: building digitally inclusive communities, Vodafone New Zealand Foundation and InternetNZ <report.digitaldivides.nz>

[101] Te Tari Taiwhenua Department of Internal Affairs “The Digital Inclusion Blueprint: Te Mahere mō te Whakaurunga Matihiko” 2019, p 7.

[102] See: <www.smartstart.services.govt.nz>

[103] See: <www.passports.govt.nz>

[104] See: <www.health.govt.nz/our-work/digital-health>

[105] See: <www.health.govt.nz/our-work/digital-health/other-digital-health-initiatives/patient-portals>

[106] See: <www.legaltech.org.nz>

[107] See: <www.cab.org.nz>

[108] See: <www.communitylaw.org.nz/legal-information>

[109] See: <www.citizenai.nz>

[110] For more information, see FairWay’s website < www.fairwayresolution.com/our-services/online-dispute-resolution> and section 3.3 above.

[111] See: <www.superdiversity.org/research-reports/reports/culturally-ethnically-and-linguistically-diverse-parties-in-the-courts/>

[112] Te Tari Taiwhenua Department of Internal Affairs “The Digital Inclusion Blueprint: Te Mahere mō te Whakaurunga Matihiko” 2019.

[113] See: <www.portia.law>

[114] See: <www.legalbeagle.co.nz>

[115] Ignite Research Report on the 2006 National Survey of Unmet Legal Needs and Access to Services, Wellington, 2006.

[116] See <www.pco.govt.nz>

[117]  See: <www.oecd.org/skills/piaac/publications/countryspecificmaterial/#d.en.489838>

[118] Kayla Stewart and Bridgette Toy-Cronin “The New Zealand Legal Services Mapping Project: Finding Free and Low-Cost Legal Services Pilot Report” (University of Otago Legal Issues Centre, 2018).

[119] New Zealand Voluntary National Review 2019, page 109 <www.sustainabledevelopment.un.org/content/documents/23333New_Zealand_Voluntary_National_Review_2019_Final.pdf>

[120] Op. cit., p 109.

[121] Op. cit., p 109.

[122] Op. cit., p 109.

[123] Op. cit., p 111.

[124] See: <www.transparency.org.nz/nz-report-sustainable-development-goals>