Access to Justice

Rule of Law

Everyone is bound by the same law, therefore everyone is equal before the law. 

What does rule of law promote

democracy, social harmony and economic growth

In practice the rule of law does

All are equal, everyone should be able to understand, should be able to access the law, it should provide shelter and protection for the less powerful. Access to Justice is therefore key to uphold the rule of law. 

What is quote deom Lord Bingham on rule of law

“The rule of law can be imperceptibly eroded unthinkably if it not valued by society” 

Tribunals (civil)

Aim to help people decide disputes out of court. Lawyers are barred, however problem is with the potential power imbalances between e.g tenant and land lord. They do not make precedent

Litigation (civil)

Relativley rare to happen, it is where a judge or other desicion maker decides on the outcome of the case. Claims over $30,000 go to these courts

Pros of litigation (civil)

• Creates precedent and case law

• reduces power imbalances as both are equal before the law (rule of law)

• Strengthens other means of dispute resolution because the case law makes it clear which way a judge would go

Cons of Litigation (civil)

• Very expensive

• long time to prepare and even then may settle beforehand

• damages relationships

• limited range of remedies

Family Court

• Is a special kind of civil it also has some areas of criminal

• Marriage, adoption, care of children

Family court approach

• Emphashisis is on conciliation

• counseling mediation and then adjudication as a last reasort

Main take away for civil

Because of the large cost it means that people arent going to court, for example family court there is no remdys at the end $400 an hour is coming out of the family budget this is not upholding the rule of law

Employment Jurisdiction

• The aim is for a speedy and low level resoloution of disputes.

• Mediation can be done over the phone- accessible

• employment relations authority

• employment court

Cons of Employment jurisdiction 

• even though it is desgined to be quick and easy people still want a lawyer as they feel expose without one

• puts rationale people against purusing there rights 

• it stunts the development of the law because it promotes not going to court

Disputes Tribunal

• Primary tribunal

• avoids the expense of lawyers by barring them

• aims to be cheap and efficent

• begins with mediation by phone

• However alot of time people do not show up when they are being taken there, this means that in securing access to jsutice vulenerable groups need more support so that jsutice can be accessed

Negotiation

• One party against another can have representatives

• Cheap, fast and accesbike and it preserves relationships

• However the weaker party may get steam rolled and in the end filings may need to be procceded

Mediation

• Very common for dispute resoloution 

• often a brief phone call although there are in person session or zoom 

• Pros is that it is private an nothing that is said can be reapted in court 

• In the middle it can be cost efficent but it can also be expesnice- cost of mediator and time to prepared

• negative is there are no safe guards and power imbalances can continue to play out

How does having alternatives improve access to justice

Having these means that there are alternative forms that are less damaging and more easy to navigate without having to go to court. This means that everyone can have there chance at acessing law and as such uphold the rule of law. However it is hard because there are always barriers

Civil Legal Aid

• there is not much legal aid for the civil jursidiction as you have to be under a certain threshold

• This leaves us with a justice gap which means that people can not access the law because of there funds

• Alternatives to this are things such as McKenzie friends who can be a support person or non lawyer assiance

Catogreys of offence - criminal

1. Not punishable by prison

2. Max sentence 2 years

3. can electe a jury 2 + years

4. With a jury in high court

Aim of sentencing

• Hold the offender accountable for the harm they have done

• deterring the offender and other members of the community

• provide rehablitation

Juries

• Fact finder responsible for determining the relevant facts of the case

• has no role in sentencing

• everyone who is an elector between 18-65 can be a juror

• A large amount of people are summoned and then choosen lawyers can challenge them and they are not on it

Problems with juries 

• potential bias that comes with them 

• For example in sexual violence cases, where the rape has been commited by someone known to the person this myth that it is not rape then creeps in 

Defence Lawyers

Everyone has a right to a lawyer, Accessing them is there is a police list so that when you are arrested you can call someone. Public defence scheme (legal aid) in criminal cases this is given as a grant in order to uphold rule of law, or you can get a private one

Tenia Pora Case

• 17 years old and was a mongrel mob prospect

• there was a reward for giving info he was interviewed for 14 hours without a lawyer present and falsley conffessed

• Went to jail for years

• Shows how important it is to have lawyers within the system to ensure that everyone is equal and has the chance at a fair and free trial

Structural Problems

• Maori are over represented at every stage

• despite making up only 15% of the population they make up 52% of people in prison

• Reoffending rate is extremely high, around 56.5% of people will reoffend within 2 years of getting out

• Many that are in the system have been in state care had injurys or fetal alcohol syndrome

In NZ disparities occur

• Many people in the system get leaked out through warnings etc however maori do not leak out the same

• there are many places where discretion can be given in aress, charge, conviction etc

• Large problem is people come into the system and feel like they are not being heard, many can not actually remember what happened

Victims and Criminal Justice

• Historically no role at all for victims

• improvements have been made through victim support and court victim advisor

Restorative Justice Conferences

• Is the step that comes between admitting guilt and sentnecing

• offender has to have plead guilty

• both partys must agree to it

• it is the same idea as mediation in which the victim and the family can talk it out

• Healing for victims so that they can move forward

Overall on structural problems

there are major issues but NZ is taking innovative steps to improve these. By being able to do this it is improving our jsutice system and acess to jsutice as it means that those in the position are being better heard and seen and victims feel like there hardship is being acknowldeged

Youth Court 

• Deals with offending that is to serious for the community 

• Tries to move away from prison and get to the under lying issues 

• Many who are in this have low school attendance and have been victims of family violence 

Rangathi and Pacific Courts

• informed by tikanga

• allows for maori voice to be heard

• Enhances respect for the rule of law when the law is speaking the language of the people it is dealing with

• aim is to connect young offenders with there community

Alcohol and Drug Court

• Deals with people who have addiction as the driver of there actions

• the person admits to the action then goes here

• it is about humainsing the person and getting to the bottom of there offending

• imprisonment is used as a threat to stop people

• it is a life long commitment to sobrierty

Te Ao Marama 

• Main idea is to to get to the underlying cayses of the issue

• infuses tikagna into the main stream as having these rituals make people feel more grounded and takes those ideas of human connection so everyone feel seen

• Ensures that people are invovled- talking in plain language

• Having this upholds the rule of law as it ensures that everyone can acess the law

How does Te Ao Marama improve the system

• Enhances connection to local communites

• improves process for victims

• encourgaes people to be heard

Criminal Justice System overall

It has major sturcutral issues in trying to improve this diffrent types of courts are being introduced to improve this. By having this it means that people are more equal and feel heard before the law which makes accessng jsutice easier and improving the system to be more representative