Speech to Law Foundation Awards Dinner
- Justice Dame Sian Elias GNZM PC QC, Administrator of the Government, Chief Justice, Patron of the Foundation
- His Excellency Sir David Gascoigne, KNZM, CBE, CStJ, Consort of Her Excellency the Governor-General
- Andrew Butler, Chair of the Foundation
- Lynda Hagen, Executive Director
- Trustee Jonathan Temm for introducing me, and the other Trustees
- President of the Court of Appeal Hon Justice Stephen Kós QC
- Chief High Court Justice Geoffrey Venning
- Law Commission President Hon Douglas White QC
- Law Society President Kathryn Beck
- Former Prime Minister Rt Hon Sir Geoffrey Palmer and Former Attorney-General Hon Margaret Wilson
- Other members of the Judiciary and the Bar
- Commissioners, Chief Executives, and public sector leaders
- Deans of law faculties and academic leaders
- Distinguished guests
I have noted all of your names and will instruct my staff that you simply must each have a one-on-one meeting with the new Minister before Christmas.
In seriousness, can I acknowledge the important and valuable work of the Foundation supporting legal research and scholarship.
The breadth of your work is truly impressive. This year alone we’ve seen publications ranging from a guide to the law for youth and adolescents; a treatise on the role of the Sovereign, Governor-General and Crown; feminist judgments in New Zealand; and reports ranging from ethics and policy in the genomic era; the pace of civil High Court cases; and environmental protections enforcement.
I have enjoyed attending Law Foundation annual dinners in the past, but I am particularly pleased to be here this year in a new capacity as Minister of Justice and Minister for Courts. Can I acknowledge the Memorandum of Understanding between the Foundation and the Ministry of Justice, which is mutually beneficial.
It is a privilege to be called upon tonight to announce the winner of this year’s Cleary Memorial Prize for the young lawyer who shows the most promise to the profession. I am looking forward to that task!
For politicians who speak at this annual event, it’s an opportunity to talk about the state of things in our legal system; although I have a vivid memory of Hon Christopher Finlayson QC last year using his speaking opportunity to give an excoriating review of Rt Hon Sir Geoffrey Palmer’s and Andrew Butler’s recent call for a written constitution.
I have no intention of engaging in that important debate tonight. I am firmly in the camp of those who believe a written constitution is vital in the 21st century, not the least for reasons of wider public access and understanding.
But it is, after all, the 150th anniversary of the publication of Walter Bagehot’s exposition of The English Constitution which, amongst other things, celebrated its unwritten nature. I suspect that was more about the fact its true nature could be hidden from the people rather than lofty notions of incremental adaptability.
Bagehot was no democrat; he was, for example, opposed to extending the franchise. And he saw the real essence of government lying with the Cabinet.
He described Cabinet as “the efficient secret of the English Constitution”. It was “the close union, the nearly complete fusion, of the executive and legislative powers.”
In his time-honoured phrase, Cabinet was “the hyphen that joins, the buckle that fastens.”
I don’t know what Bagehot would make of the genuine MMP government we have now – not much, I suspect, as he was deeply opposed to anything that looked like popular support.
An MMP government made up of parties of substance (as opposed to one large party supported by a couple of one-man bands) calls for a different way of operating, both in the Executive and in Parliament.
Parties matter in MMP government. This is good. This is the check and balance I think voters were looking for in 1993 when we opted for the new electoral system.
I believe there is more we can do to make our constitutional arrangements accessible to more citizens, but I can report the government has no specific proposals at this stage, and I will dwell on it no further.
But we definitely have some critical questions to face in the justice sector, some of which may have constitutional implications.
There are three major challenges confronting me as Minister of Justice as I start in this role: firstly, improving access to justice; secondly, a criminal justice system that is growing its prison population faster than we’ve ever known; and, thirdly, reaffirming, more by actions than legislating for it, the paramountcy of the rule of law.
Let me deal briefly with each of those challenges.
On access to justice, like many in the sector I have become increasingly concerned that a gap is opening up between those who have the means to enforce or defend their legal rights and those who don’t.
In the criminal justice sector, we already provide (at least to some) legal aid or access to a publicly-funded defence lawyer. In the civil arena we have developed, over many years, various low level and low cost (to the user) tribunals to deal with particular types of legal claims (the Disputes Tribunal, Motor Vehicle Disputes Tribunal, Real Estate Agents Tribunal, Tenancy Tribunal, Customs Appeal Authority, Student Allowance Appeal Authority, ACC appeals and reviews, et al).
Some tribunals purport to operate in a low-level informal way, but in practice require legal counsel in order to be heard effectively (the Employment Relations Authority). And in the case of ACC appeals, even at its earliest stage, it is often necessary for an appellant to bring evidence (in the nature of a specialist report) that is costly and, therefore, often prohibitive.
Legal aid rules have been tightened and we are seeing in jurisdictions like the Family Court what is starting to look like inequality in representation. It is fair to say that a significant proportion of justice correspondence to Members of Parliament relates to the Family Court, and for that reason we are committed to a review of the previous government’s recent changes to that Court.
In the ordinary courts, if a private legal claim does not have an economic value close to $100,000, then it is likely to be uneconomic to pursue it.
It is possible to see, therefore, that a host of disputes such as residential construction disputes, trust issues and neighbour disputes - all reasonably costly for the average household - can go unattended because of the cost of litigation.
As a result, rights go unenforced.
Access to justice is a vital component of the rule of law. Whether it is the enforcement of private rights or the defence against state prosecution, respect for the law and good order can only be achieved when every citizen can meaningfully participate in the legal system.
In criminal legal aid, I am left wondering whether the income thresholds (which are disqualifying thresholds) are realistic given today’s incomes and inflation over time.
When it comes to prosecution of a citizen by the state, we have a duty to ensure the legal contest is a fair one. I would be concerned if non-legally aided people were forced by lack of means to enter pleas without the benefit of professional legal advice. It is not enough to rely on under-funded Community Law Centre – albeit we will be increasing those centres’ funding – so I am keen at some point to review legal aid entitlements and thresholds.
I now turn to criminal justice more broadly.
The Labour Party campaigned in this year’s election on reducing the prison muster by 30 percent by 2030.
That commitment was symbolic of our intention to do something about the rapidly rising prison population. It is as much about how it is that we are incarcerating so many people, and the length of time we are incarcerating them, as it is about what we do with the prisoners once they are under state control.
As we have taken up the mantle of government, the statistics about our prisons are sobering.
If we do nothing, and the current trend in sentencing continues, then the prison population is forecast to rise by 44 percent to over 15,000 in the next ten years alone.
Our prison population has, in fact, been rising steadily for nearly 30 years now. But the pace is increasing - by 20 percent in the past three years alone.
Spending on criminal justice in New Zealand has increased at three times the rate of economic growth in recent decades.
Our incarceration rate is now 220 prisoners for every 100,000 people, when the OECD average is 147. At the current rate of growth, our incarceration rate will be 260 per 100,000 people by 2028.
The average sentence now served is longer. This reflects changes in sentencing laws, as well as decisions about bail. It also reflects decisions about parole, and the fact that for a growing number of prisoners they cannot meet conditions for getting parole because the support needed isn’t there.
Then look at the people ending up in prison.
Nearly two thirds have literacy and numeracy levels below NCEA Level 1. More than 90 percent of youth offenders have significant learning difficulties. More than three quarters of prisoners have themselves been victims of violence. More than 60 percent of prisoners have had a mental health problem in the previous 12 months, and nearly half have an addiction problem. A significant number have recorded traumatic brain injury.
These are just the people in prison. There are many times more passing through the criminal justice system but not ending up in prison – at least not yet.
The public discourse about prisons easily focuses on the need for punishment. That conditions should be tough and unpleasant so there is a deterrent to offend.
But what is abundantly clear from the growing prison population and ever-lengthening sentences is that prison is not the deterrent that is claimed of it.
The coalition government is in the early stages of confronting this significant problem. A number of Ministers and departments are engaged in the issue.
We don’t yet have a concluded policy or a strategy to deal with it. But it is very clear to me we have to change our thinking.
It goes without saying that someone convicted of an offence should account for themselves and should face a proportional sanction. For custodial sentences, the punishment is the deprivation of liberty.
But what is the point of locking up so many people with mental trauma, addictions, head injuries, educational deficits and other problems if we do little or nothing about those problems while they are in state custody?
Equally, part of the challenge is what we do in the parts of the criminal justice system before an offender is sentenced to a term in prison.
There are good approaches being developed in some of the newer courts, such as the Rangitahi Courts, and in therapeutic courts which are still in early stages of development.
It is pretty obvious that the earlier the state can intervene effectively in the life of someone otherwise destined to commit crime, the better chance we have of steering them away from the obvious mark of system failure, prison.
I am confident you will see in this government Ministers and MPs willing to forge a new path to a more effective criminal justice system.
Our commitment to a Criminal Cases Review Commission is acknowledgement, which I know many judges share, that it’s possible for the system to get it wrong, even at the highest levels.
I want to conclude briefly with a comment about the rule of law.
I came to the view early in my parliamentary career that, contrary to my legal education and my faith in liberal democratic parliamentary politics, that Parliament is not the final bulwark against executive erosion of civil and political rights. I have seen up close how little attention is given by some lawmakers to these notions.
The Attorney-General Hon David Parker and I resolved some time ago that we are determined that ours will be a government that respects the rule of law, and will not over-reach. That is the nature of this government. And that is a safeguard now. It is no guarantee for the future.
You might begin to understand why I now give much less weight to the absolute sovereignty of Parliament, and why I believe there needs to be a stronger check and balance on it. Such as might be provided by a written constitution.
I know Walter Bagehot would be horrified.
We have big challenges ahead.
For a more progressive and human criminal justice system.
For the preservation of basic precepts of the rule of law and the protection of the citizen and citizenship.
There will be a forthright public debate, and there should be, as we seek to make changes. All sectors of the community will have to contribute to that debate.
But one sector of the community whose voice I want to hear loudly and clearly is those whose training and passion is the law; those who dedicate themselves to the scholarship of it.
That is a role many in this room can play. That is a role the Foundation must continue to play.
I look forward to that engagement.
Thank you for having me here tonight.