Law Foundation International Research Fellowship Awards Dinner

Ladies and gentlemen, this event is the annual opportunity for the legal profession to celebrate the valuable work the foundation does as New Zealand's only funder of pure legal research, independent of commercial or political interest.

This event provides an ideal opportunity for me as Minister to share some thoughts with you - even test some ideas -on new policy directions.

But first I'd like to acknowledge some of the foundation's recent achievements.

The nature of the foundation's role means it doesn't see the limelight very often, but I know that there's an awful lot of significant work that wouldn't get done without the foundation's backing.

Most of you will be aware of the foundation's most substantial research exercise to date, the Human Genome Research Project.

This three-year, $3 million project produced several volumes of research into the complex legal issues around genetic modification, and that research is being drawn on in government and elsewhere.

The project has proven so valuable that the foundation has established a new centre within the law faculty at Otago University to continue the work in this rapidly-changing field.

This year the foundation was determined to launch another major research project that could make an equally enduring contribution to legal development. After consulting widely, it settled on the topic of regulatory reform.

The government is only too aware of the importance of good regulation. The cost of regulatory failure can be spectacular - the global financial crisis and, closer to home, the leaky buildings crisis are good examples of the consequences of poor quality or inadequate regulation.

Though we can learn lessons from overseas, New Zealand's regulatory framework has to suit our own unique circumstances. It must take account factors like our small population, our open, trade-dependent economy, and the relatively small size of most of our businesses.

That's why this $2 million project is so important: it supports the Government's immediate policy focus on regulatory reform with a deeper, more systemic examination of New Zealand's regulatory environment.

Though regulatory reform has been the foundation's big-ticket item this year, its support has made possible many other useful projects besides that.

I want to mention three.

Distinguished British legal academic Professor Graham Zellick toured New Zealand in August, providing useful insights into the work of the UK Criminal Cases Review Commission, the world's first independent body established to investigate miscarriages of justice.

Dr Nicola Taylor and her team at Otago University's Centre for Research on Children and Families completed a ground-breaking three-year study on child relocation following parental separation.

This study, which involved interviews with 144 parents and 44 children, is among the first in the world to explore family members' perspectives on these issues.

And, Dr Kirsten Hannah led a team at Auckland University of Technology that produced a valuable report on Child Witnesses in the Criminal Justice system.

This, of course, is just one of many pieces of work supported by the foundation that is very ‘live' for the Government in terms of policy consideration.

I'll return to Dr Hannah's work later when I talk about the Government's inquisitorial work programme.

Like the Law Foundation, I've had a busy few years. Since I became a Minister, I have introduced 33 bills and passed 24. My staff tell me it's not a competition, but I'm not so sure.

Tonight I'd like to set out the objectives for the Government's legislative reform in the justice portfolio, and talk about two of my priorities for next year.

Put simply, the programme for the justice portfolio has three broad objectives.

The first is to improve public safety, which we have done by clamping down on gangs and organised crime, providing on-the-spot police safety orders, and expanding the use of DNA testing.

We are also taking action to prevent crime before it occurs through our government-wide Drivers of Crime strategy.

Progress to date includes the introduction and first reading of the Alcohol Reform Bill, our Fresh Start reforms, and more intensive support for teen parents.

Our second objective is to improve the justice system for those who find themselves in it through no fault of their own, and over the past 18 months the Government has made significant progress in putting victims at the heart of the criminal justice system.

We have introduced services and grants for victims which are being funded by the $50 offender levy. And early next year we will build on this by announcing improvements to the Victims Rights Act.

Our third reform objective is to speed up and simplify the delivery of justice.

Steps we have already taken toward this objective include passing legislation that allows greater use of audio visual links in courtrooms, and introducing legislation to radically reform the provision and oversight of legal aid.

We have also implemented a new committal process which has already reduced the average time it takes to get a High Court case committed to trial - from 186 days down to 79 days.

The Criminal Procedure (Reform and Modernisation) Bill, which received its first reading today, represents our most significant progress towards speeding up and simplifying criminal procedure.

You will be familiar with the most important of the proposals in the bill, such as:

• § Requiring the defence to identify issues in dispute before trial.

• § Raising the jury trial threshold.

• § Allowing courts to proceed in absence of a defendant if the court is not satisfied the defendant has a reasonable excuse for their absence.

• § Requiring counsel to attempt to resolve cases before a hearing so unnecessary court appearances can be avoided and trial times shortened, and

• § Sanctions and rewards to encourage compliance with procedural matters.

The annual benefits of these proposals are expected to include 43,000 fewer court events, between 300 and 600 fewer cases proceed to a jury trial, shave 13 weeks of the time it takes for a jury trial to be completed, and savings of about $24.3 million over a five-year period.

As its name suggests, the bill will simplify criminal procedure and provide an enduring legislative framework that will avoid unnecessary delay and stress to victims, witnesses, defendants, jurors, and others involved in criminal procedure.

So it's fair to say we have a bit on our plate. But we can't afford to be complacent - there's more work to be done.

Which brings me to two of my priorities for the Justice portfolio in 2011.

They are inquisitorial law reform - an issue that the Law Foundation has been looking at - and reform of the Family Court.

First, our work on inquisitorial work.

Reports of child victims and witnesses being cross-examined in an aggressive manner months after the alleged offending occurs really concern me.

It's about time we acknowledged that the adversarial process often undermines the quality of evidence given by vulnerable victims and witnesses.

My thinking in this area has been shaped by AUT's Report on Child Witnesses in the Criminal Courts, and by my recent trip to Germany and Austria where I examined how their justice systems deal with vulnerable participants.

I'm fast coming to the conclusion that we can improve the quality of evidence given by children if we make our courts more responsive to their age, education, and circumstances.

One way we could do that is to introduce some elements of an inquisitorial system.

A quasi-inquisitorial approach could help limit a child's exposure to the courts. We could ensure that all interviewing, including cross-examination, occurs away from the courtroom through forensic experts or trained judges. All evidence should be taken as close as possible to the time of the alleged offending.

We could also introduce a presumption that a child's pre-recorded interview would stand at trial, and only in exceptional circumstances would leave be granted to allow the child to be recalled and new evidence introduced.

The other aspect that needs to be addressed is how delays in the courts are affecting children.

In 2008, child complainants under the age of 17 waited for an average of 15 months for their cases to be processed through the courts. That is not acceptable to me.

The Criminal Procedure Bill will help reduce some of these delays, but I'm also considering creating a legislative requirement for cases involving children to be heard within a specified timeframe.

As a first step to all of this, I've asked Ministry of Justice officials to report to me with an issues paper on child victims and witnesses by early next year.

They will also be working on completing national best-practice guidelines for child witnesses by April next year.

Improving the interaction of children with the criminal justice system in this way is my first priority, but I believe such a system could eventually be adapted for use in sexual violence cases where, as in cases involving children, a power imbalance exists.

To this end, I am looking forward to receiving the report by Law Foundation grant recipients Professor Jeremy Finn, Professor Elisabeth McDonald, and Dr Yvette Tinsley on improvements that could be made to criminal procedure in sexual offending cases. 

I turn now to reform of the Family Court.

One of the reasons I'm focusing on the Family Court is because over the past four years its volume of new cases has increased by 5% but costs overall have increased by 33%.

That's a big dispartity. What's more, there is little evidence to suggest that the increase in spending has led to improved outcomes for either children or parents.

Furthermore, over the past four years spending on family legal aid has increased by 51% to $38.9 million.

And based on current estimates, family legal aid expenditure will increase by a further 59% over the next four years. That means that by 2014 it will cost us $61 million.

These forecasts force us to ask fundamental - but difficult - questions about family legal aid.

Questions such as:

• Where do the roles of the state and the private citizen begin and end?

• To what extent should the courts intervene to help solve the many interconnected problems facing dysfunctional families?

• What additional support services should be funded, and which of these should be overseen and funded by the Justice and Courts sector?

• Is our system geared to ensure disputes are dealt with as painlessly as possible?

We have to ask whether the system is really incentivised to put children first and the argument second, or the other way around.

Unnecessarily drawing out the court process is in no one's best interests. It places added stress on children and parents who are already dealing with difficult personal circumstances. It also places an unnecessary burden on the taxpayer.

Some recent changes, such as the Early Intervention Programme, have improved the processing of care-of-children applications and have reduced delays. But we need to create greater incentives to divert cases away from the court and ensure that state funding for family legal aid is not actually promoting litigation.

I would like to make it very clear that where children have been harmed or are at risk of being harmed, the State will continue to provide legal means to secure protection.

This Government has put a lot of work into the protection of children and vulnerable parties and I will not undo that.

But legal aid was never intended to prolong family disputes. That's why I have asked officials to look at whether we can use the legal aid system to encourage earlier and more enduring resolutions in care-of-children and property cases.

This would, in turn, relieve other cost pressures on the system, such as court-ordered professional services.

Over the past few months I have talked to a number of judges, practitioners, and court staff about these issues, and I must say their suggestions have been hugely helpful in informing my work in this complex area.

Flowing from those conversations have come ideas such as:

• Using duty solicitors in the Family Court to ensure those arriving in court get timely legal advice.

• Restricting legal aid funding for Care of Children Act disputes to just mediation and one final order which would cover all care-of-child issues.

• An expanded role for Community Law Centres as a first port of call for advice on family issues.

• Greater use of cost orders to deter vexatious litigants.

• A new merits test for family legal aid to ensure that legal aid gets to those who need it most and where a judicial process is appropriate.

• Bringing lawyer-for-the-child under the umbrella of legal aid to ensure it is better targeted.

These are all ideas I intend to develop over the course of 2011.

Many of you have considerable expertise in some of these matters, and as such I am keen to hear your views and ideas for reform.

I encourage you to get in touch with me over the next few months.

Finally, I would like to congratulate all those who made the shortlist for tonight's awards. I look forward to hearing more about the short-listed candidates' prospective projects later in the evening.