Thursday, 23 August 2012

Supreme Court Justice Criticises Legal Aid Changes


No one has picked up on this yet. But a Justice from our highest Court has robustly criticised the Government's legal aid reforms and he suggested “re-examining how legal aid should be delivered.” Justice Tipping retired last week, and in his final sitting he delivered a speech making some major criticisms of the legal aid reforms. Effectively he says that the reforms may be inconsistent with the New Zealand Bill of Rights Act 1990: ( (s24(d) the right to adequate time and facilities to prepare a defence, and s25(h) the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both). In other words the reforms directly undermine access to justice and equality before the law. 
“My concern is that the solution those genuine problems received resembled the use of a sledgehammer to crack a nut,” he said.
The scope of legal aid and the rates of remuneration were now at a level that seriously risked compromising the delivery of justice, at least in some fields.
Sir Andrew asked whether the current legal aid system was consistent with the observance of these fundamental rights under section 24(d) and section 25(h) of the Bill of Rights, as well as whether the cuts to legal aid would actually save tax payer money.
“The irony is that the money saved by not granting legal aid is very often overtaken by corresponding, if not greater costs being incurred elsewhere. I refer to the extra work needed by the registry staff and the Judges themselves when an appellant is unrepresented. It is a false economy that we seem to be pursuing,” he said.
He also reflected on the relationship between the Ministry of Justice and the Judiciary and how it should be described as one of “mutual co-operation” rather than partnership. This separation was necessary to maintain separation and balance of powers.
“Judges are appointed to judge and Ministry staff are appointed to administer the Courts and provide the infrastructure necessary to enable the Judges to discharge their judicial responsibilities,” Sir Andrew said.
“The concept of partnership risks a failure to recognise the necessary separation of powers.
“I must say that in my time as a Judge I have noticed an increasing lack of understanding and appreciation of the role of the higher courts as the third branch of government.”

For completeness I have attached the entire speech. The remarks I refer to are made towards the end.


Final Sitting 
The Right Honourable Justice Andrew Tipping 
Friday 17 August 2012 
I thought I would do two things on this occasion. First I will highlight some of the major developments in the content of the law during my 50 years as a law student, practitioner and Judge. Secondly, I will offer some reflections on issues which are important as the legal system and its administration moves forward into the future. 
As regards the substance of the law, there is much that could be said, but I will mention developments in four areas only: tort, contract, equity and statute law. This will necessarily be a brief and highly selective survey. 
Hedley Byrne v Heller was decided in 1963 while I was a law student. I can well remember the stir, almost excitement, that it caused. The decision came 30 years after Donoghue v Stevenson. Among other things it made a breach in the physical harm/economic loss barrier and signalled the further developments 
made by the House of Lords in Anns which did not last in England but have lasted in New Zealand. Whatever you may think of the modern law of negligence in New Zealand, we have at least steered a fairly consistent path over the last 40 years. That path has, in analytical terms, been based largely on Anns case. England itself and Australia have not been so consistent. Canada has steered substantially the same path as us. 
In the field of contract, the greatest development in the past 50 years can be found in the passing of the four key contract statutes which have dealt individually with illegality, mistake, remedies and privity. From those pieces of legislation has emerged a body of caselaw in each field that is based on sound principles and has, by and large, provided a satisfactory blend of predictability and flexibility. In the contractual area there has also developed in my legal lifetime a curiously convoluted and diverse jurisprudence in relation to contract interpretation. Not only the Judges but also academic writers have spent much time and energy on 
a subject that one would have thought, conceptually at least, would have become settled well before now. 
In short and simple terms someone interpreting a contract is looking to identify by objective means the shared subjective intent of the parties. If we could all agree that anything relevant to that inquiry should be regarded as admissible, whether it be pre or post contract, that would help put a rather tiresome issue to bed. 
In the field of equity, a significant development has been the rise of the impact and importance of the concept of fiduciary duty, together with the development of remedies for breach. We now have at least the makings of a reasonably stable body of authority in this field. But, as in so many areas of the law, there is a clamour from some quarters for greater predictability of outcome. Experience suggests, however, that while a measure of predictability is desirable for the application of any legal principle, it is unwise and seldom conducive to the ends of justice to strive too hard for certainty of outcome when framing a principle. The 
more is this so in relation to fiduciary duty when we remember that equity developed as an antidote to the rigidity of the common law. 
All we can hope to achieve in any field is an appropriate balance of two inherently inconsistent bedfellows: predictability and flexibility. When, in the interests of certainty, we prefer a firm clear rule with little flexibility, such as exists in relation to forfeiture of deposits, we must bear with fortitude the howls of protest that come from the tree-hugging members of the legal community. When we prefer a more flexible approach we must endure with similar fortitude the protests that will inevitably come from those who prefer their legal weetbix to have the consistency of concrete. 
And so to my fourth head: statute law. A much higher proportion of civil litigation is now concerned with statutory interpretation. That brings to mind two recent statutes which were very long in gestation but seem to have turned out successfully. The first is the Evidence Act which came into force in 2006. I must 
say I was nervous that the codification of the whole of the law of evidence would be productive of much litigation. There has of course been litigation but overall my anxiety was misplaced. The Act has worked well. 
My second example is the recent Limitation Act. We have not yet had much exposure to this legislation but it too seems destined to be successful and to represent a much needed modernisation and clarification of what for litigators can often be an important area. 
The Courts are now generally dealing with much more complex issues in the process of statutory interpretation than was the case in my earlier days in the law. The rise in complex regulatory control mechanisms over various fields of activity has brought with it concepts not immediately familiar to legal minds. A concomitant has been the rise of expert witnesses and wonderful new concepts such as hot tubbing. I am pleased to say that, at least at the moment, it does not 
seem that the Judge has to get into the hot tub with the experts. This would make one’s eyes water in more ways than one. 
In comparative terms New Zealand jurisprudence has done well in keeping pace with the demands of the modern world. We lead the way in some areas; we follow in others. Our small size encourages us to look elsewhere for ideas and solutions. We can take advantage of the greater experience of other comparable countries while tailoring solutions to fit best with the tenets and aspirations of New Zealand society. 
I move now from the substance of the law to my other topics. I will address them in ascending order of significance. When I was sworn in nearly 26 years ago I forecast that we were on the verge of a technological revolution as far reaching in its impact as the industrial revolution had been two centuries earlier. And so it has proved. The benefits that have come with these developments in technology have been immense. But with those benefits have come issues. Why, for 
example, should it take 15 minutes and the pressing of an ever increasing sequence of buttons before one can speak to another human being, let alone someone who is actually able to assist, without more button pushing. Does this represent increased efficiency? We are now slaves to the vagaries of our computers and other devices. We are captive to their eccentricities. I know the Ministry of Justice is working hard on its computer system. It is not very efficient to have time to make and drink a cup of coffee between switching on and being ready to go in the morning. It is hardly efficient to wait for up to 30 seconds before the reply command is actioned. Think of the number of 30 seconds throughout the Ministry of Justice. Of recent times one of the most frequent correspondents on my judicial email has been someone in the IT Department who writes to say that an aspect of the system has gone down yet again. That is enough of these irritating facets of modern life. 
I have often reflected on the best way for Judges and those who administer the court system to interact. It is sometimes said that the judiciary and the Ministry of 
Justice are partners in a joint endeavour. I do not regard that description as helpful. The relationship should certainly be one of mutual cooperation. But it should not be characterised as one of partnership. Judges are appointed to judge and Ministry staff are appointed to administer the Courts and provide the infrastructure necessary to enable the Judges to discharge their judicial responsibilities. 
The concept of partnership risks a failure to recognise the necessary separation of powers. It encourages administrators to dabble in judging and Judges to dabble in administration. We cannot have those advising the executive dabbling in judging by suggesting how Judges should do their jobs and examining the quality of their output, for example by saying that if there was more predictability in the law there would be less need for people to resort to the Courts and money would thus be saved. If it is desirable to have more predictability in a certain area of law, that is something for Parliament to address. 
I must say that in my time as a Judge I have noticed an increasing lack of understanding and appreciation of the role of the higher courts as the third branch of government. This can be an insidious thing with a series of little steps, seemingly innocent in themselves, leading to a substantial impact on the separation and balance of powers. I have a feeling that in some quarters the judiciary are seen by the executive and its officials as simply another section of the Ministry of Justice to be managed, like the IT section and the human resources section. The Judges and the profession must be vigilant to arrest and reverse this unconstitutional tendency. 
As a further point I doubt we should employ scarce judicial resources as much as we do in settlement conferences and seemingly endless callovers and case management sessions. The Judges have been obliged, with greater or lesser enthusiasm, to adopt this kind of role by default. Ideally, suitably qualified people, who would not need to possess all the attributes necessary for a Judge or an Associate Judge, should be available within the Registries to manage, to 
the extent truly necessary, the flow and progression of litigation. No doubt I will be thought very old fashioned in expressing these views. But I have been concerned throughout the last 25 years that we have not got the balance right. Efficiency is obviously a desirable feature of any judicial system. But we must not allow the need for efficiency, and indeed the need for fiscal restraint, blind us to the fact that a judicial system is ultimately about doing justice. Doing justice under the rule of law is such a fundamental underpinning of our whole society that we should always be prepared to invest enough money and resources in the judicial system to do the job properly. Efficiency and economy are not inimical to that goal. 
That leads me to my final topic: legal aid. There is no doubt that there were some features of the legal aid system in New Zealand that needed the recent attention given to this subject. My concern is that the solution those genuine problems received resembled the use of a sledgehammer to crack a nut. The scope of legal aid and the rates of remuneration are now, according to the 
information I have received, at a level that seriously risks compromising the delivery of justice, at least in some fields. Is the Bill of Rights to be viewed simply as formulaic window-dressing? For example, s 24(d) gives everyone charged with an offence the right to adequate facilities to prepare a defence. By necessary extension that must encompass adequate facilities to prepare a plea in mitigation. 
I question whether our current legal aid system is consistent with the observance of these fundamental rights. In similar vein s 25(h) gives convicted persons the right to appeal against conviction, sentence or both. At least at the level of indictable crime, where the appeal lies to the Court of Appeal, it is difficult to see how that right can effectively be exercised without legal representation. The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation. The irony is that the money saved by not granting legal aid is very often overtaken by corresponding, if not greater costs being incurred elsewhere. I refer to the extra work needed by the registry staff 
and the Judges themselves when an appellant is unrepresented. It is a false economy that we seem to be pursuing. 
If legal aid is granted, counsel’s ethical duties to the Court should in most cases lead to the isolation of such points as can responsibly be argued. This results in a great deal of saving of time and cost in the processing, hearing and determination of appeals. If counsel do not perform their role responsibly, it should not be beyond the scope of the legal aid authorities to take appropriate action. In respect of legal aid and access to justice generally I notice that the Chief Justice of Canada has very recently expressed similar concerns at a meeting of the Canadian Bar Association. It seems to be an issue that is causing difficulties in most modern democracies. I suggest we should lead the way by re-examining how legal aid should be delivered. What we need is a proper recognition of the fundamental rights and values that are at stake. We can do this without sacrificing the need for efficiency and economy. 
And so it is time for me to take my leave. I thank all my judicial colleagues over the years for their friendship and support. I thank my associates Barbara, Margaret and Veronica for their wonderful service and support and for cheerfully putting up with my idiosyncrasies. I thank the profession for their courtesies to me as a Judge and the camaraderie we had as practitioners together. I thank in particular my good friend and colleague Sir Peter Blanchard with whom I have served for nigh on 15 years, first in the Court of Appeal and then in this Court. It has been a wonderfully stimulating and satisfying professional relationship. And above all I thank my family who have been of immeasurable support over the years. I am delighted that my mother and all my three children could all be present today and all my seven grandchildren. Sadly, Jandy was taken from us a couple of years ago. Her love and encouragement was immense over more than 40 years. And more recently Mary Jo has brought a wonderful new light into my life. 
In closing I will borrow the lovely words of John Milton, in his elegy to his drowned friend Edward King, written under the poetic title of Lycidas: 
At last he rose, and twitched his mantle blue 
Tomorrow to fresh woods and pastures new. 

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