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Leading judge says court administration model 'outdated'

Thursday 19th September 2019

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A Court of Appeal judge has criticised how New Zealand’s courts are run, labelling the system “outdated” and proposing reform including who should have control of budgets. 

But the critique is being played down by Courts Minister Andrew Little who says he’s happy with the way things are. 

In a two-part article for the New Zealand Law Journal, Justice Forrie Miller criticised New Zealand’s current system and advocated for a partnership model, rather than a distinct judiciary and executive model as currently. 

Justice Miller is known for his administrative vigour, having designed the Christchurch earthquake list system. He points out that the Kiwi judicial system is out of step with England, Scotland, Canada and Australia which all use variants of a partnership model. 

“It has persisted with an executive model which denies the judiciary any meaningful influence over the courts budget and how it is spent, creates operational barriers to innovation and efficiency, and presents the executive with incentives to seek control of functions that are and must remain judicial in nature,” the judge says in his critique. 

Under a partnership model the Court of Appeal judge wants a separate agency within the Ministry of Justice that administers the courts budget, overseen by a board that the chief justice heads. In the 2019 budget the courts were allocated $820 million for the June 2020 fiscal year, up from $773 million a year earlier.

Justice Miller adds that modern courts, especially those in multiple locations, need skilled staff that report to heads of a bench. 

“So, for example, the Judicial Office of the Chief Justice has only a very small number of staff - currently three - working in the operations sector. The explanation is not that the ministry fails to recognise the need for management. Rather, the ministry has taken the view that the need should be met by executives who are accountable to the ministry rather than the Chief Justice.”

Justice Miller also suggests the registry - court staff - be brought under judicial control.

Speaking to BusinessDesk, Little, who is also justice minister, says there’s no major crisis at hand, so reform is not a priority for him. 

“The current system seems to work reasonably well. There’s a natural tension between the judiciary and the executive and that’s sacrosanct and needs to be kept so." 

Little said the tension between courts and the executive wouldn't go away under a partnership model, and that the secretary for justice, Andrew Kibblewhite, who was appointed this year, has regular checks and engagement over decision-making. 

“What I’m satisfied with is the efforts of the secretary of justice to get close to the judges.”

“We haven’t faced any major crisis in the set up we’ve got and I’m simply not aware of any problems. We had court staff walking off due to pay demands and that did cause disruption but we managed through that.”

Little added that court staff were already working for the judiciary despite their payslips coming from the Ministry of Justice. 

“In reality, because they are working for judges and there are requirements in there and they are making low-level quasi-judicial decisions, they are acting in the service of judges,” the minister said.


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