Speech to the Criminal Bar Association

Justice

Kia ora koutou

Firstly, thank you to the President of the Criminal Bar Association, Fiona Guy Kidd QC, for her invitation to attend the annual conference this weekend albeit unfortunately she is unable to attend, I’m grateful to the warm welcome both Chris Wilkinson-Smith (Vice-President, Whanganui) and Adam Simperingham (Vice-President, Gisborne) have extended throughout the course of the day.

The Chief Justice made mention to the drivers of crime today: poverty, lack of secure housing, lack of secure income. I concur with that sentiment, and while some of those issues are within a broader government ambit to effect change, it is true that once within the system, my role is to ensure the system is just that, a connected and joined up system; your role is to ensure that access to justice is accorded to any person without fear or favour.

Since taking over as Justice Minister I’ve been travelling the country getting to grips with the justice system - all sides of it too. I’ve been talking to lawyers and judges, passionate NGOs and iwi representatives striving to effect change for their communities, and meeting some of the great court staff working on the front line. I’ve been learning more about the challenges around delays and for victims of crime. And as discussed today, I’ve had the opportunity to hear where some of the really crunchy issues land, where the rubber hits the road.

I’ll turn briefly now to some of the issues raised, and I want to thank members for their contributions both those that presented, and the insightful questions and contributions from the audience.

Justice Thomas made the comment today which I wish to reiterate, “we know you’re all working incredibly hard and under pressure”. I would also like to acknowledge the role that all of the lawyers sitting in this room play in ensuring the justice system operates fairly and fearlessly.

It can be a tough, lonely job in ‘normal’ times.  It has been particularly tough job over the last few years. The pandemic has turned longstanding systems on their head.

Even as we’ve seen COVID-19 restrictions ease in the last eight months, in some ways we’ve entered the most unpredictable time with the compounding effects of omicron, the winter cold and flu season and two and a half years of constant change and uncertainty. So I want to acknowledge the commitment and resolve of all of you in this room who have kept the system going. 

Justice Cooper remarked on the impacts of the Bazley report, and briefly I note it was that report which destroyed the prospect of a bunch of my generation’s aspirations who were eager to pursue a career in criminal law at the time, however the pathway for many of us (remembering that PDS had only just been established), meant the entire practice and fee structure for criminal law, and particularly criminal defence was upended overnight.

So, turning to the issue of legal aid. It's fair to say I heard representations on this issue throughout the course of the day, and of course since well prior to my time as taking the Justice warrant. Tiana Epati highlighted this morning that as a consequence of a strong campaign, the Parliament and the public heard very strongly from the profession that the legal aid system wasn't working.

Budget 2022 contained an investment of over $148.7 million across four years to strengthen the legal aid system and ensure continued access to justice for New Zealanders who cannot afford legal advice.

In short, the changes mean an extra 93,000 more people will be eligible for legal aid from January 2023. That’s 93,000 more people who will get legal help that they desperately need.

I heard the question in the audience today – where exactly will that money go. So here you go:

  • $65.9m to increase provider hourly rates – it’s a 12% one off payment which commenced on 1 July.
  • $50.9m will go into increasing income thresholds in January 2023 by 15% and then 1.9% p/a thereafter (noting this is a budget for over four years, and means these uplifts are hard wired in)
  • $26.4m is going to increase debt repayment thresholds by 16.5% - this is a critical aspect for increasing access to justice to those that need it the most.
  • $2.1m to remove interest on debt from January 2023
  • $1.29m will remove the $50 user charge

Ministry officials will help monitor the effect the changes have once they have been implemented. This will include provider monitoring, to see if the remuneration increases is having an impact upon the number of providers retained and the volume of legal aid cases they take. In addition, the Ministry of Justice will also be starting engagement with the profession on provider coverage – we heard from the Chief Justice and Tiana that provider coverage is an area that requires further inquisition – a point I also raised through the estimates hearings on Budget 22 at select committee.

I’ve also heard clearly that there is discontent with the fixed fee regime, and I have also heard the plea for an independent review into legal aid – this is something I’ve sought advice on as a consequence of the representations made this morning so I thank you for that.

If I can first address the issues of court delays, and I know Fiona was on RNZ this week talking about this important issue.

Court delays are not new, and they have definitely been exacerbated by COVID, with thousands of court events not able to take place since the pandemic began.

The Ministry, judiciary and the legal profession have worked together to ensure the Courts adapted through each COVID-19 wave, which have enabled more court events to proceed and more cases to be resolved.

For example, in the District Court, during the first COVID-19 Alert Level 4 period only 32 percent of normal court events were able to be completed.

During the Delta Alert Level 4 period this increased to 40 percent, and during the Omicron red setting this increased to above 90 percent.

This, of course, is little consolation to victims, defendants and lawyers affected by delays in getting to trial. As you all know only too well, the effects of delays are very real.

It means it is stressful for lawyers who feel pressure to get cases to trial, and for victims and defendants who have their lives on hold as they wait for their day in court.

The Government is committed to improving access to justice. It's one of our primary objectives.

There is considerable effort being invested into reducing court delays on a number of fronts.

The Government has responded to the pressures the courts have been under, as a result of COVID-19, by funding just over $74 million from recent Budgets to provide additional judicial resources.

Meanwhile, work with the judiciary, legal profession, court staff and scheduling teams is ongoing to ensure cases are progressed.

The Criminal Process Improvement Programme – or CPIP – is a judicially-led cross-agency programme aimed at reducing unnecessary adjournments and delay.

The CPIP objectives are to:

  • reduce the average time (days) to disposal
  • reduce the number of events that do not proceed on the day
  • reduce the average number of events for a case from start to end, and
  • reduce the number of days the accused spends in custody waiting for an outcome.

We also know that late guilty pleas in the District Court are affecting the performance of our courts.

Each year, guilty pleas have been coming later and later in the process, leading to an increasing workload in courts, and causing further delays, rising legal aid costs and a higher remand prison population.

Last year (2021) the Ministry of Justice asked front line practitioners what was driving later guilty pleas.

This work showed there were multiple and overlapping reasons for late guilty pleas, including late disclosure of evidence, a lack of early engagement between prosecutors and defence counsel, and few incentives for the defendant to plead guilty earlier (I’ll turn to the repeal of 3 strikes shortly).

The Chief Justice spoke about Te Ao Mārama this morning, but I want to circle back as well. The judicially-led Te Ao Mārama initiative was first announced in 2020 by Chief District Court Judge Heemi Taumaunu in response to long-standing calls for transformative change to Aotearoa’s justice system.

Te Ao Mārama has real potential to improve the experience everyone in the justice system in tangible ways.

For the District Court it means “enlightened justice for all” where judges adopt best practices predominantly used in the District Court’s specialist courts and a solution-focused judging approach for all New Zealanders.

It’s about reaching into communities, because we know that those communities often have the best solutions for victims, for those who are offending, and for catching behaviours early.

So it’s about removing barriers and leaning into communities to provide solutions.

The Government is also progressing the repeal the three strikes legislation – I’d like to thank the Criminal Bar Association for their submissions and I drew heavily on them in Parliament earlier this week for the Committee of the Whole stage. Third reading for this repeal bill is expected to be early next week.

So that’s just a quick overview of the work we have underway – we know there’s a lot to do but know we wouldn’t be able to do it without the support of organisations like the Criminal Bar Association so thank you for your support and I also want to acknowledge the work the Association does in promoting and supporting the practice of criminal law in New Zealand.

I look forward to a close ongoing relationship in coming years.