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SocietyNovember 1, 2017

Judges have been talking about the ‘justice gap’ crisis for years. Are we beginning to listen?


Fair access to the judicial system is societal linchpin, but there’s an increasing divide between those who can afford good legal representation and those who can’t. Adam Goodall looks at how the legal profession has been trying to raise the alarm.

Back at the start of August, Chief Justice Dame Sian Elias gave a speech to the Criminal Bar Association Conference. The speech is available on the New Zealand Courts website, along with a sample of speeches that judges have given over the years. Many of them are fascinating, but I don’t blame people for not reading them: they’re loaded with footnotes, details-focused to a fault and have a dry academic tone that’d make anyone’s eyes glaze over in seconds. They’re speeches for the legal profession, a profession that’s dry and pedantic by design.

Enter Newsroom. Tim Murphy wrote a piece a couple of weeks ago about that August speech, the “little-noticed” speech that “has the country’s judges and lawyers talking”. Here’s Elias, the judiciary’s leading light, telling us straight that government policy – cost-cutting and “managerial justice” – is eroding the public’s rights to freedom from discrimination and injustice. This is unprecedented! Why is nobody talking about this?

Here’s the thing: this isn’t unprecedented. Judges have been talking about this for years. We just haven’t been listening.

Chief Justice of New Zealand, Dame Sian Elias. (Photo by Hagen Hopkins/Getty Images)

The first two terms of the National government saw a flurry of reform. The police introduced pre-charge warnings; the Legal Services Act 2011 gutted legal aid in order to cut down ‘ballooning’ costs; the Criminal Procedure Act 2011 and the Family Court Proceedings Reform Bill fundamentally altered the core processes of our criminal and family jurisdictions; and Treasury’s 2009 Long-term Fiscal Statement set up the justification for all this and more – the handy image of the justice system ‘pipeline’, with costs increasing and accountability for those costs diminishing the further down the pipe you got.

Judges had been alluding to issues with these reforms since 2012, but the first one to really stick their head above the parapet, in 2014, was Justice Helen Winkelmann. Then the Chief High Court Judge, Winkelmann delivered the prestigious Ethel Benjamin Address in Dunedin. Her speech was titled “Access to Justice – Who Needs Lawyers?”

The target of Winkelmann’s speech was a growing ‘justice gap’ in our civil jurisdiction. If that gap continued to grow, she said, it would be “not just to the detriment of the [legal] profession, but also the detriment of civil justice in our society.” Court fees were unaffordably high (a one-day hearing in the civil jurisdiction at the time came in at approximately $6,700), thresholds for legal aid were set impossibly low (a maximum gross annual income of $22,366 for single applicants) and, anecdotally at least, the number of self-represented litigants appearing in court was growing at a troubling rate.

Winkelmann was pretty clear on why she was talking about this: “What I would like to do is encourage debate about the first topic, the recasting of civil justice as a private benefit. As for the second, the growing justice gap, I aim to spark the profession to action.”

Others followed. In August 2015 the new Chief High Court Judge, Justice Geoffrey Venning, gave a speech to the New Zealand Bar Association Conference echoing his predecessor’s warnings about legal aid and the cost of justice. Later in October, Elias gave a series of speeches in the South Island about how the rule of law was being “imperceptibly eroded unthinkingly” by “the new government joined-up justice sector”. Legal aid reforms, court costs and a focus on outcomes and information-sharing had been “destructive,” she said, to access to justice and institutional fairness.

The following year, Justice Stephen Kós told the Arbitrators’ & Mediators’ Institute of New Zealand and International Academy of Mediators Conference in Queenstown (boy, why didn’t anyone cover this?) that our legal aid system was “illogical, inefficient and inhumane”. And retired Judge Ron Young gave Waikato University’s annual Harkness Henry Lecture, titled “Has New Zealand’s justice system been compromised?” He rattled off a laundry list of examples to prove his hypothesis: reduced legal aid, reduced defence access to forensic testing, pressure on defendants to ‘accept’ their guilt in order to receive pre-charge warnings or community justice panels, and the noxious influence of the Sensible Sentencing Trust.

Elias’ speech in August was no outlier. It was like all the others, a frustrated call for action. So why isn’t this stuff getting any traction?

Part of the problem is that when judges decide to talk about this crisis, a widening inequality they see the real effects of every day, they talk to the profession and they talk in language that’s only really accessible to the profession. In her Ethel Benjamin Address, Justice Winkelmann avoids talking explicitly about what other branches of the government can do to help end this nightmare. Instead, she talks about McKenzie friends, pro bono work and unbundling services. These proposals are only really meant for the profession’s consideration, and they hit their mark: for months after, there was passionate agreement in LawTalk and on the Law Society website that something had to be done. The only mainstream coverage was in Jock Anderson’s Herald column, seven months after the fact.

I’m not dragging the judges for this. They know how they’re seen. They all lived through 1999’s bizarre referendum on whether our justice system was accessible enough to victims and hard enough on violent offenders. They saw parliament lose its damn mind over Ngati Apa v Attorney-General and they’ve seen ministers proudly tell the media that sentencing decisions were “wrong”. This country is paranoid about ‘activist judges’.

Judges conduct themselves according to that paranoia. They preface submissions to select committees with the line “I do not comment on matters of government policy.” The Guidelines of Judicial Conduct recommend that they exercise care if they are commenting on government policy – “…it may be beneficial to public debate for judges to provide information relating to the administration of justice and the functions of the judiciary… [but] it is important to avoid using judicial office to promote personal views and avoid the appearance of capture by particular organisations or causes.”

The point is that when they do step into public debate, we don’t listen. Instead, we’re drip-fed stories about legal aid offices being shut down; about lawyers dropping away; about how bail reform has fuelled our soaring prison population. Outside of LawTalk and some very sparse mainstream coverage, there’s no urgency here, no connecting of the dots. Our justice system was a rotten mess in so many ways before the fifth National government got its hands on it – tends to be the case with colonial institutions forcibly imposed on indigenous communities. But what fairness it had is being stripped away like bad wallpaper. It’s incredible that it’s taken three years of speeches to get people outside the profession to notice.

But like I said, the legal profession noticed. LawTalk has been steadily churning out articles since 2011. Advocacy groups like JustSpeak and PAPA have dedicated incredible amounts of time and energy to getting people to notice this growing inequality. Firms have been experimenting with unbundling services and legal aid lawyers have created Legal Aid Providers Aotearoa in the hope that it’ll make legal aid services more accessible. That’s enough, right?

Well, not really. I’m drawn back to what Justice Winkelmann said in her Ethel Benjamin Address way back in 2014. “As for the growing justice gap, I aim to spark the profession to action.” That action has to be more than stepping up pro bono work and setting up skill-shares and 0800 numbers.

With the new government, there’s a chance that further action might actually change things. Labour and NZ First have already pledged to increase funding to Community Law Centres and incoming Minister of Justice Andrew Little has been vocal about 2011’s legal aid cuts in the past. (They do also have to get through a Minister for Police who talks about offenders like they’re villains in a cartoon, though.) But lawyers and legal professionals have to get loud. They have to agitate for the end of this pernicious, inhumane mode of managerial justice that’s taken over the system. Judges have spent years holding out the baton and the profession has to run with it, because it’s really fucking clear that no-one else will.

Adam Goodall is a freelance writer and playwright with a background in justice sector analysis and legal research.

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