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Improving access to justice key challenge for minister

13 December 2017

Improving access to justice is one of three major challenges confronting Andrew Little as Minister of Justice as he starts in the role, he says.

In a speech to the Law Foundation Awards Dinner in Wellington on 7 December 2017, Mr Little said the other two challenges were a criminal justice system that is growing its prison population faster than ever known, and reaffirming, "more by actions than legislating for it", the rule of law.

"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."

Legal aid rules have been tightened, he said, "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, Mr Little said. 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.

Legal aid

Mr Little said with criminal legal aid, he was left wondering whether the income 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 Centres - albeit we will be increasing those centres' funding - so I am keen at some point to review legal aid entitlements and thresholds."

Criminal justice

The Labour Party campaigned in this year's election on reducing the prison muster by 30% by 2030, he said.

"If we do nothing, and the current trend in sentencing continues, then the prison population is forecast to rise by 44% to over 15,000 in the next ten years alone.

"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."

Mr Little said it went without saying that someone convicted of an offence should account for themselves and should face a proportional sanction. For custodial sentences, the punishment was 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 were good approaches being developed in some of the newer courts, such as the Rangitahi Courts, and in therapeutic courts which were still in early stages of development.

Mr Little said he was confident that the government's Ministers and MPs were willing to forge a new path to a more effective criminal justice system.

"Our commitment to a Criminal Cases Review Commission is acknowledged, which I know many judges share, that it's possible for the system to get it wrong, even at the highest levels."

Rule of law

In closing, Mr Little focused his comments on 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."

Last updated on the 13th December 2017