Access to Justice: We Need More (Than) Lawyers

Dame Helen Winkelmann, Chief Justice of New Zealand

Access to Justice: We Need More (Than) Lawyers

Address to University of Waikato / MacKenzie Elvin Law Lecture, Tauranga 24 August 2022

Tauranga Moana,

Tauranga Tangata

Mihi Mai

 

Tākitmu Waka

Mataatua Waka

Whakaatau mai

 

Ngāi Te Rangi,

Ngāti Ranginui

Ngāti Pukenga

Karanga mai

E mihi ana ki ngā mate o te wā

Ki a koutou te hunga ora; ngā māreikura, ngā manukura, ngā huia tū rae o te ture kua huihui mai, tēnei te mihi maioha ki a koutou

Tēnā koutou katoa

I am delighted to be here in Tauranga this evening and honoured to be speaking as part of this lecture series.

When I was asked to speak, it was suggested I revisit the topic of my 2014 Ethel Benjamin lecture “Access to Justice: Who Needs Lawyers?” Convention suggests revisiting things on a decimal basis – at the ten or twenty-year mark. But I agreed to the topic for several reasons. First because I believe the need to preserve social cohesion makes securing access to justice more pressing today than it was then. Secondly, because as Chief Justice I have had many opportunities to reflect upon access to justice issues within a broader framework. I would like to share these perspectives with you tonight. And finally, because recent developments give real cause for optimism that we can make progress in this area.

When I spoke in 2014, I made the case for ensuring access to justice in the civil arena in rule of law terms. I said that access to justice was the critical underpinning of the rule of law: in a society ruled by law everybody, the good, the bad, the weak, the powerful, exist under and are bound by the law. And I said that condition cannot exist without access to courts.

The focus of my 2014 address was on access to courts, and access to lawyers. I was speaking at a time when access to the courts were being framed by government in market terms. Rather than portraying them as a critical democratic institution, civil courts were depicted as a luxury service for which users should pay. I noted some of the language used at the time – people who came before the courts were referred to as ‘customers’, District Court centres were referred to as ‘franchises’ and judges and lawyers were ‘stakeholders’.¹

I spoke at a time when lawyers were framed as a barrier to, rather than enabling, access to justice, a framing which led to Family Court reforms curtailing the right to legal representation in some proceedings.² There was also at the same time a reduction in legal aid funding and an effective freeze on legal aid thresholds and rates. 

A lot has changed over the last eight years. The reforms in the Family Court which limited access to lawyers have been repealed.³ There have also been some improvements in connection with civil legal aid - a point I return to shortly.

The consumerist language in respect of the civil courts has largely disappeared. The Ministry of Justice has identified access to justice, including civil justice, as an enduring priority. This commitment has found expression in many ways, including through the Secretary for Justice joining with me in sponsoring the development of a strategy to facilitate civil access to justice – entitled Wayfaring for Justice, it reaches beyond the courts. I will return to this strategy later.

These are all important developments. But they are not what I speak of when I say that things have changed a lot since 2014. With hindsight, 2014 was a relatively benign period for the institutions that support liberal democracy throughout the world. There was a broad consensus in the West as to the political legitimacy of democracy, and by today’s standard’s little serious challenge to the legitimacy of the institutions that support it.

As Geoffrey Palmer has recently observed that benign period has come to an end. ⁴ The political legitimacy of democracy is under challenge in many places throughout the world. He quotes the 2020 report produced by the Centre for the Future of Democracy at the University of Cambridge which concluded:⁵

“We found that dissatisfaction with democracy has risen over time, and is reaching an all-time global high, in particular in developed democracies”

Associated with this dissatisfaction or driving it – the cause and effect is difficult to unravel - is the growth of populism. The characteristics of populism are an appeal to the wisdom and power of the people, and a questioning of the legitimacy of institutions by characterising them as elitist and not of the people. Populism typically presents the world as divided into good (the will of the people as expressed through populist leaders) and evil (anybody who is not entirely in agreement with the will of the people so expressed). In this black and white world, compromise is impossible.⁶

Given these characteristics, the rise of populism is often associated with the undermining of democratic institutions and perhaps even the rise of authoritarianism. Sir Geoffrey notes the very many countries in which a tendency toward authoritarianism is now discernible.⁷

Populism is not a new phenomenon. Whether we think of it as a political strategy or a political theory, it has been democracy’s persistent shadow.

As long ago as the time of Cicero, some candidates for Consulship were described as populare – meaning that they appealed to the people for their votes, by decrying the self- serving elite.

A study of history shows that populism ebbs and flows. Today it is fair to say that it is at full flood in many countries.

New Zealand has stood apart from the worst of this. I believe we are lucky in our institutions. New Zealand ranks highly in rule of law measures – a fact in large part built on the integrity, standing and ability of our judiciary.⁸ But we cannot be complacent. As Cass Sunstein has said:⁹

In all democracies, however, there is a constant source of deliberative trouble: political disagreement can be heightened simply by virtue of the fact that likeminded people are talking mostly with one another. It is a simple social fact that if people tend to agree and spend some time in conversation with one another, they are most likely to end up thinking more extreme version of what they thought before. It follows that if likeminded people are talking mostly with one another, social fragmentation is highly likely. New technologies, including the Internet, increase this risk... In the worst cases, hatred and even violence are possible consequences.

One of the critical features of populism is the sense amongst those captured by its appeal that democratic institutions do not respond to their needs. This is both a cause and effect of populism.

Democratic institutions anticipate this risk by ensuring that they tend to the source of their legitimacy. The legislative branch does this by responding to the vote of the electorate. The judicial branch maintains its legitimacy through the process of fair hearing – in other words through the provision of forums in which conflicting views and claims are able to be explored in a solemn and dignified manner and resolved through the equal application of the law as evidenced in the giving of reasons. The performance of this role demonstrates in a tangible way equality before the law as an ideal to which our society adheres.

Although each society inevitably falls short of the ideal, a society whose institutions no longer work toward it, and whose people no longer believe that there is equality before the law, is a society in which social cohesion will be loosening and civil society deteriorating.

Eight years on from 2014 I therefore believe that the case for focusing upon and indeed fighting for access to justice in order to support the rule of law is more pressing than ever.

Access to justice has two strands – ensuring that people have access to the institutions and procedures that will uphold and enforce their rights and ensuring that people have access to the content of the law – that is that they understand their rights and how to access and enforce them. Tonight I address both of these but broaden my focus beyond the courts. There are two key themes I explore.

The first is that those involved in the work of administering justice in its broadest sense, must listen to the voices of those who need to access justice, or who have experience of trying to do so. This is the best source of information about how services should be structured.

This is an approach that also ensures that the institutions involved in the administration of justice remain connected to their communities.

The second theme is the need for a systemic focus upon supporting access to knowledge of rights, and duties, and to lowering the barriers to being able to enforce them. By systemic I mean across the courts, across the profession and across government. In short, that we need more than just lawyers.

My address will therefore be wide ranging, and inevitably I am afraid superficial in its treatment of some issues. It forms something of a to-do list – although some of the tasks on the list will not be, indeed cannot be, done by judges.

A good starting point is the nature of the obstacles that stand in the way of these two aspects of access I have described. We are helped in understanding these obstacles by the Access to Justice review currently being undertaken by the Rules Committee. That Committee embarked on this work in 2019. The review was initially focused on improving access to civil justice in the District Court and in the High Court through rule reform. Although the focus was at first upon rules, the consultation threw up broader issues so that, with the agreement of the Attorney-General and Minister for Justice, the review has expanded to address some questions of policy and legislative reform. The Committee is to report shortly.

The submissions the Rules Committee received are a rich source of information to assist in understanding the barriers that exist in the way of accessing courts and tribunals and the barriers in the way of obtaining information about the law.

I am very grateful to all who submitted (which included many law firms and individuals and academics) and in particular to the Community Law Centres and Citizens Advice Bureau for their submissions.

The Law Society described a justice gap which has been building for decades.¹⁰ Many submitters described the obvious barriers created by cost - the substantial costs of court fees and hearing fees, the still more substantial costs of legal representation. As Dr Bridgette Toy-Cronin has highlighted, the increase in cost of legal services has far outstripped the increase in median weekly income.¹¹

The cost of legal representation before a court or tribunal is such that civil litigation is beyond the reach of even middle-income New Zealand without the assistance of civil legal aid. I do not need to cite anything for that proposition – it follows inevitably from legal charge out rates well north of $300 per hour. Legal Aid is therefore critical. But the eligibility rates for legal aid are still, notwithstanding recent increases, set far too low – falling well short of the level of middle income.¹² Moreover, as the New Zealand Law Society documents, very few lawyers are prepared to take on work from legally aided civil clients, given very low rates combined with a very high administration load imposed by the legal aid regime.¹³

The submissions we received from Community Law Centres provide powerful insights into how courts and the profession and the law is seen by those who have pressing justice needs.

The themes identified echo the results of various surveys and research. Both quantitative and qualitative assessments come to the same conclusion. But the qualitative results provide a narrative that tells the human cost. Those making these submissions are expert not only in the operation of the justice system, but also in the difficulties that the marginalised experience on a daily basis. For this reason, it is information we need to pay close attention to.

Porirua Kapiti Community Law Centre highlighted the cultural barriers to interacting with the Courts noting that many of its clients experience whakamā – feelings of shame, inferiority, inadequacy, embarrassment and self-doubt. The Waitemata Community Law Centre highlighted that this is particularly problematic for Māori who find the current court system alien. Given the historical impacts of colonisation their expectation is that they will not be listened to or respected in the justice system so “why bother”.

The Porirua Kapiti Community Law Centre observed that for the centre’s clients - not only those of Māori descent, but also Pasifika, migrants, refugees and others for whom English is a second language or who lack formal education, the court system is difficult to engage with. They noted:¹⁴

…[t]he eurocentrism and bureaucracy which dominates the legal sphere does not reflect New Zealand’s population. Accessing justice can therefore be an alienating experience for those whose culture(s) do not reflect the dominant values of New Zealand’s legal system.

Community Law Centres generally reminded us that many of their clients with very real civil justice needs are living with mental health problems or experience ongoing mental illness. Many who come into the court system have disabilities, but the court system makes little provision for the disabled – in the information we provide, and in the processes we use. This makes it difficult to access or participate in civil justice.

The submitters also highlighted the importance of better assistance to access courts or indeed tribunals. Lack of knowledge of these processes often leads to significant prejudice. One example is a failure to respond early enough to debt claims.

Community Law Waikato said that their clients are generally the marginalised, vulnerable, and are living on low incomes. Often they have had limited education. But they have pressing justice needs. Even the few who do manage to engage with the processes often come out the other end not understanding what has happened.

Community Law Centres, including Community Law Canterbury, emphasised the absence of accessible and comprehensible information about rights in the areas in which their client’s problems often arose – including debt arising from interactions with finance companies and door to door sellers, or from an inability to access benefit and accident compensation entitlements. Many submitters referred to the technical ‘jargon driven’ way in which information is presented in all aspects of the court process – rules, court forms, and even judgments. The use of inaccessible language makes engaging with the courts, and understanding what is required of the litigant, difficult and daunting. There was an obvious need for accessible, clear, and ‘to the point information’ to enable their clients to understand their rights and how to access them.

These submissions are all available on the Rules Committee website.¹⁵ What emerged for me when reading them is how important Community Law Centres, and Citizens Advice Bureaus are in enabling access to justice. I am humbled by the service those who volunteer or work in these centres provide. What is critical for my purposes tonight is that these submissions provide evidence of serious barriers to accessing our courts for those with the most pressing justice needs. They describe a court system which is alien to their clients, which remains Eurocentric even though we live in a country in the South Pacific, and in which communication occurs in complex and obscure language and processes.

The alienation of the vulnerable in our society risks a weakening of social cohesion, allowing populist ideas to take hold in the spaces left by the justice gap. If people do not see the courts and tribunals as institutions that will respond to them, they will look elsewhere.

The submissions present a daunting list of issues to address. The submitters describe the complex interplay between procedural and substantive law, and the vulnerabilities of many in our society which leaves them unable to seek the protection of the law. We cannot expect Community Law Centres or Citizen Advice Centres to close the justice gap, no matter how vital their work is. The Rules Committee will report shortly, but given its focus, it also can only be a part of the solution.

We have a judiciary which sees and is committed to addressing these challenges. But many of the issues that exist are beyond the power of the judiciary.

We need the Ministry of Justice working alongside us (and I am pleased to say that we have that), the profession alongside us - but we need more than the profession. The government as a whole needs to be alive to these issues.

I therefore turn to highlighting the work that is underway to address these concerns, and the work yet to be done to achieve the systemic response I believe is necessary.

Cost

The cost of accessing justice – the cost of legal representation and even the cost of filing and hearing fees - is beyond my powers as Chief Justice. As some of you may know I have been outspoken regarding the deficiencies of our present legal aid settings. In early August the government announced extra funding to raise the eligibility threshold, reduce the numbers subject to repayment obligations and increase legal aid rates for lawyers.

While I was pleased to see this, it is obvious that with only a 15% increase to eligibility thresholds, and with legal aid rates for lawyers still nowhere near Crown rates, this is not the reset the system needed. Having said that I must acknowledge that all jurisdictions struggle with the delivery of a sustainable, fair, just and accessible legal aid system. The UK House of Commons Justice Committee, acknowledging a similar reality, recently suggested the review of its legal aid framework to enable aid to be targeted to areas most in need, and best calculated to improve the effectiveness of the courts and justice system.¹⁶

I also suggest that our legal aid system needs such a review, with a similar strategic focus. The system has developed over time, often in response to various historic events. A strategic review could ensure that funding is targeted in the areas in which it is the most effective in achieving equitable access to justice. It could also untangle some of the outdated assumptions about the model of legal service that are baked into the current scheme, and which currently hinder the provision of effective and efficient services. Such a review cannot be mere tinkering at the margins and must have access to justice rather than cost management as its focus.

As much as the funding levels are an issue, so too are the administrative systems. I am told that many would rather do the work for free than subject themselves to the form filling requirements to be approved for legal aid, and then to have their invoices paid.

We can all share the blame for the administrative system we have today – the profession and the judiciary – for good reason, did not wish to bear it. But I think placing all the responsibility upon the Ministry of Justice is to ask too much of them. Without up-to-date practical experience of files, law offices, legal practice and courts, it is difficult to maintain an administrative system that is responsive and light touch. That is another area I suggest that a strategic review could address.

Supporting individual and community participation

The Community Law and Citizens Advice submissions I have outlined raise issues as to the alienating nature of court processes and the difficulty of engaging with the formal justice system.

The courts (the judiciary with the support of the Ministry of Justice – the Crown agency charged with supporting the judiciary with the operation of the courts) are developing processes and even courthouses that are more in keeping with a country in the South Pacific, founded upon Te Tiriti of Waitangi, and that reconceptualise the courthouse as community spaces. These changes are directed at reducing the alienating impact of the nineteenth century procedure and get up of our courts.

I do not for a moment suggest that we will abandon all the traditions we have inherited from England – there is value in much of that process and tradition. Rather we are allowing those processes and traditions to evolve to meet the particular needs of Aotearoa New Zealand. We are also accepting that new ways of doing things – new at least for the courts - derived from this time and place can enhance the concept of the fair hearing and the administration of justice.

Relevant to this development is Te Ao Mārama, the model of justice currently being introduced in the District Court Criminal and Family jurisdictions. Te Ao Mārama has two focuses. The first upon creating hearing environments that support engagement and comprehension for the people who are the subject of the proceeding – not just the lawyers. This objective is pursued by using plain English, through whānau and community presence and support for the parties, and by using communication assistance where appropriate.

The second aspect of Te Ao Mārama utilises the court process as an opportunity to address the conflict or the harm that underlies the court proceeding through, as appropriate, community engagement or the support of government agencies or other service providers.

Both features of Te Ao Mārama pick up judge driven innovations that have been used in pilot courts now for over a decade. Although developed in the criminal and now family jurisdictions, this model has obvious relevance to many other areas of the courts’ civil jurisdiction.

Te Ao Mārama is supported by the Ministry of Justice. I expect that these aspects of Te Ao Mārama will have their impact on civil justice beyond the area of family over time.

Understanding our communities

It is also necessary that judges, and the profession understand the communities they serve, and are adequately grounded in te reo and tikanga.

Across all courts, judges receive education in te reo, and in tikanga. They also receive education that enables them to deal with the full diversity of people who come to court and who need to be supported to full participation in the proceeding. These are educational initiatives that have now been in place for several years, and I suspect that the profession is only just beginning to catch up. But catch up they must.

Recently the Supreme Court issued a decision in a case called Deng v Zhang which addressed the importance of counsel being aware of important cultural context in civil proceedings and being prepared to assist the court with those issues - a judgment which repays reading.¹⁷ That shows how important an awareness of cultural context can be to the substantive outcome – to substantive access to justice if you will. But it fundamentally highlights how important it is for the profession to be sensitive to different cultural contexts, and perhaps to be educated in it. It was pleasing to see the New Zealand Law Society, New Zealand Bar Association and New Zealand Asian Lawyers respond so promptly to the educational imperative in that judgment.

The focus of this work is firstly upon ensuring that courts remain connected to their communities and are able to meet the community’s justice needs. And secondly, on ensuring that people see and feel that the justice administered by the courts is accessible to them. This work is critical to ensuring access to the courts in the sense I have described – the ability to bring proceedings and the ability to fully participate in them. It is critical work to ensure the courts are not, and are not seen to be, an elite serving only the interest of a part of society.

Access to justice beyond the courts - tribunals and dispute resolution

Just as in my 2014 speech, to this point my focus has been upon access to courts. But in our society the reality is that most access to civil rights occurs in tribunals or through other statutory based dispute resolution processes.

Aside from relieving the court system of what would otherwise be a crushing workload, these bodies and processes are typically set up to allow resolution of proper entitlements and disputes using more informal processes than is possible in the court system. Tribunals can and often do use inquisitorial processes. Statutory review processes often use alternative dispute resolution.

Given the volume of civil disputes and entitlements resolved through these means we are wrong to keep our focus solely upon the courts and lawyers when we think of access to justice issues. Barriers to access to justice can arise just as surely when these processes are not understood or are difficult to engage with.

I offer an example of the system responding to this challenge. In July of 2015 the Accident Compensation System was about to undergo statutory reform of dispute resolution processes – replacing appeals to the District Court, with a specialist tribunal. But that proposed reform was put on hold when the then Ministers of Accident Compensation and of Justice received a report from Acclaim Otago (Inc).¹⁸

Acclaim is a support group for injured New Zealanders and their families which advocates for systemic change to improve the lives of injured people. With the help of funding and support from the Law Foundation and the University of Otago Faculty of Law Legal Issues Centre Acclaim described the barriers that some people face when challenging ACC decisions. The report was based upon a wide-ranging review of case law and case studies but drew upon the report writers’ extensive experience in the field. It provided a detailed account of the process by showing how obstacle strewn and distressing engagement with the dispute resolution processes was for those who wished to challenge ACC decisions.

The report’s conclusions were compelling, reflecting the authors’ expertise in the system they criticised, and detailed knowledge of the difficulties faced by those who had to interact with it.

The legislative reforms proposed at that time did not go ahead. Instead the relevant Ministers committed to consulting with injured people to understand their experience of the system. Following an independent review which confirmed most of Acclaim’s criticisms, ACC and MBIE have worked to address those obstacles.

They have invested in providing better and more accessible information, in the creation of alternative dispute resolution pathways and in a free Navigation service providing support capable of advocating for claimants’ interests and assisting them to raise disputes or complaints where appropriate.

This is an example of engagement and responsiveness – a redesign informed by the unique insights provided by Acclaim. In a more recent report Warren Forster, one of the authors of the original Acclaim report, observed the significance and early promise of this work in transforming the way people experience disputes with ACC. ¹⁹

Several things can be taken from this example. First, it demonstrates how effective it can be when the system listens to and engages with the voices of those who must use it – and to link back to my earlier discussion of populism, how this can provide an opportunity for people to be engaged with their institutions.

Secondly it highlights how vital it is to have organisations or advocacy groups with the knowledge and expertise to collect and channel those voices and so enable this engagement. Those who operate the system, as experts in it, struggle to understand what it is like for the novice to engage with it. Feedback such as ACC received from Acclaim, and such as the Rules Committee received from Community Law Centres, is to be treasured.

Thirdly, which is perhaps a digression – the Acclaim report and the more recent report by Mr Forster demonstrate how important funding for this research has been.

And finally, this a useful example for me to springboard to my next point, how effective, and indeed vital, a focus on access to justice within government departments is.

Access to Justice – A Whole of Government Focus?

Traditionally it is judges, lawyers and the Ministry of Justice who are the advocates for, and guardians of access to justice. I believe that access to justice is a concern with which all government agencies should actively engage. Most rights and obligations are sourced from statute and accessed through government departments. There is a compelling case for making access to justice a structural focus for all government departments. Access to the benefits of English citizenship guaranteed to Māori under Te Tiriti included the benefit of the law. Moreover, as I have set out above, access to justice is vital to social cohesion, and as study after study has recorded and observed, to the economic growth and prosperity of a nation.²⁰ Attending to access to justice is a democratic imperative.

It is a positive innovation that MBIE has now established a Government Centre for Dispute Resolution Principles. The purpose of this Centre is to provide principles and information to assist government departments to design dispute resolution processes. The information it provides is a fascinating read. I would like to see a similar agency supporting access to justice across government which would focus on both of the aspects of access to justice I mentioned earlier – access to knowledge of the law, and access to the means to enforce those rights.

A government-wide focus of this nature could be transformative in terms of access to justice, and toward building a more just and equal society.

There are two obvious areas for it to focus upon. First the content of legislation. When we create legislation to protect the rights of tenants, employees, the injured etc, we do so because as a society we wish those rights to be protected. When drafting critical “rights heavy” relationships – legislation such as the Residential Tenancies Act, Employment Relations Act, Accident Compensation Act, an early focus upon how ordinary people will be able to understand those rights seems sensible. It would be valuable for such legislation to be written for those who use it. Each of these pieces of legislation is complex – with lawyers and judges working hard to construe them. Some of this complexity is surely avoidable.

Great strides would be made toward access to justice were legislation designed to facilitate not only comprehension but also enforcement of statutory rights. How rights and obligations are described and enforced impacts directly upon how easily understood and how easily enforced they are. Expressing rights in complex or vague terms sets up the likelihood of dispute. Rights which are only enforceable through the courts will be out of reach for many. And many more may not even be aware of their rights.

I am not sure if a legislative design principle is currently used which focuses upon how statutory rights will be understood and enforced by lay (non-legal) people of limited means – if it is not, it should be. Certainly, there have been similar recommendations made in the past, including in a 2008 Law Commission report which called for accessible legislation built on principles of availability, navigability and clarity for users.²¹ To this list should be added enforceability.

The lessons which have obviously been learnt from ACC will be useful here. In his book “Making Laws That Work” Justice David Goddard gives other examples of simplified low-cost mechanisms that allow people to challenge determinations, but which do not remove the right ultimately to resort to the courts.²²

Another critical area of focus must be on providing easy access to information about rights and dispute resolution pathways. Community Law and Citizens Advice have led the way in this in Aotearoa. Several government departments and agencies now also make considerable and commendable efforts to provide on-line legal information. But this is information typically provides only a part of the information needed to navigate through to resolution of the issue – understandable given the very many different factual and procedural permutations the information needs to cater for. In 2020 David Turner and Bridgette Toy-Cronin released a report “On-Line Legal Information Self-Help In Aotearoa: An Agenda for Action” which identified this difficulty with existing resources and emphasised the need, drawing on lessons from other jurisdictions, to take a whole of jurisdiction approach. They concluded that a strategy of cooperation and user engagement is necessary to achieve this, and that this cooperation would require the coming together of people from across the judiciary, legal profession and community.²³

I suggest however that real progress will not be made until government agencies are also engaged in this work, because it is that engagement that will create the opportunity for simplification of both process and information and to the design of user focused legislation.

Hope for the future

And so onto my last point tonight. There are signs that institutions and systems are responding to the calls for better access to justice. There are many green shoots in this area. Access to justice is now a focus within the profession.

The New Zealand Law Society recently led a large-scale review in the area, which provided vital data, including information that helped inform the recent legal aid funding shifts.²⁴

The measure of what legal excellence is, as expressed through the criteria for appointment as Queen’s Counsel, has been amended to include the work the lawyer does to facilitate access to justice. The 2021 establishment of Te Ara Ture, the pro bono clearing house, launched as a subsidiary of Community Law Centre Aotearoa brings together a database of lawyers willing to offer pro bono service. This important initiative is funded by the Ministry of Justice.

So too is the “Wayfinding for Civil Justice” strategy I mentioned at the outset. The draft strategy, which is currently out for consultation proposes the establishment, or alternatively the strengthening, of an existing body, to coordinate reporting of access to justice initiatives and the sharing of information.²⁵

The draft strategy document states that Wayfinding will be successful if everyone is aware of each other’s efforts and all the efforts are contributing to meeting the strategy’s goals. The goals are stated to be:

1. Increase community access to legal information and self-help tools
2. Increase the availability of affordable legal services, and increased lawyers’ knowledge and understanding of communities and their needs. 
3. Increase the availability of information about the range of dispute resolution mechanisms that are available and ensure equitable access to the courts.
4. Finally, increase knowledge of how the system is currently operating and evaluate and monitor innovation and change.

The working group responsible for the creation of the strategy has provided a model of cross-sector thinking and leadership. Through information sharing, the strategy aims to make the significant efforts of individuals and organisations more effective by creating the opportunity to learn from each other, and by creating opportunities for coordination.

Conclusion

To conclude. Although there are challenges to improving access to justice, we must rise to meet them. Doing so is a democratic imperative. Improving access to justice has never been more pressing than it is today given the need to maintain social cohesion in the face of rising populism throughout parts of the Western world.

There is much to be done. Judges, and lawyers have their role to play in this work. But more than lawyers are needed if we are to make meaningful progress. A structural focus on access to justice across government, across the judiciary and across the profession is required. And as we do this important work, we must continue to listen to the voices of the community. We must listen to the community if we are to meet the needs of those we serve.

 

Footnotes

¹   Helen Winkelmann "Access to Justice – Who Needs Lawyers?" (2014) 13 Otago LR 229 at 232.

²   Winkelmann, above n 1, at 236. See also Mark Henaghan and Meghan Nicholson “Family Law” (2014) 2 New Zealand Law Review 321 at 350.

³   Family Court (Supporting Families in Court) Legislation Act 2020.

⁴   Sir Geoffrey Palmer “Rethinking Public Law in a Time of Democratic Decline” (2021) 52 VUWLR 413 at 415.

⁵   At 415.

⁶   Cas Mudde “The Popular Zeitgeist” (2004) 39 Government and Opposition 541 at 543.

⁷    At 415.

⁸    For example, Transparency International regularly ranks New Zealand one of the least corrupt nations in the world ranking as the least corrupt nation in six of the last eight rankings.

⁹    Cass Sunstein Designing Democracy What Constitutions Do (Oxford University Press, New York, 2001) at 240.

¹⁰  New Zealand Law Society “Submission to the Rules Committee on Initial Consultation Paper: Improving Access to Justice” (25 August 2020) at 2.

¹¹  Bridgette Toy-Cronin "Explaining and Changing the Price of Litigation Services" (2019) New Zealand Law Journal 310.

¹²  The current income threshold for eligibility for a single person with no dependents is $23,820, which is just over half the salary of a full-time worker on minimum wage. This is set to rise by 15% in January 2023 but will still be well below full-time minimum wage

¹³  Access to Justice Research 2021 (New Zealand Law Society, October 2021) at 6.

¹⁴  Porirua Kapiti Community Law Centre “Submission to Rules Committee on Improving access to Civil Justice”

at 3.

¹⁵  See Courts of New Zealand Improving Access to Civil Justice https://www.courtsofnz.govt.nz/about-the- judiciary/rules-committee/access-to-civil-justice-consultation/.

¹⁶  See The Future of Legal Aid (UK House of Commons Justice Committee, November 2021).

¹⁷  Deng v Zheng [2022] NZSC 76.

¹⁸  Acclaim Otago (Inc) Understanding the Problem: An analysis of ACC appeals processes to identify barriers to access to justice for injured New Zealanders (July 2015).

¹⁹  Warren Forster Removing Disabling Experiences: a vision for the future of our people (The Law Foundation New Zealand, April 2022).

²⁰  See for example Access to Justice and the COVID-19 Pandemic: Compendium of Country Practices (OECD, September 2020; Rule of Law, Economic Growth and Prosperity (Report of the Rule of Law Working Group Sponsored by the Americas Society and Council of the Americas, July 2007). See also United Nationas and the Rule of Law “Access to Justice” https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of- law-institutions/access-to-justice/.

²¹  Law Commission Presentation of New Zealand Statute Law (NZLC R104, 2008)

²²  David Goddard Making Laws that Work: How Laws Fail and How We Can Do Better” (Hart Publishing, Oxford, United Kingdom, 2022).

²³  David Turner and Bridgette Toy-Cronin “Online Legal Information Self-Help in Aotearoa: An agenda for action” (2020).

²⁴  Access to Justice Research 2021 (New Zealand Law Society, October 2021).

²⁵  Wayfinding for Civil Justice: Strategy Consultation Document (Ministry of Justice).