Submission on

Introduction

I submit this opposition to the Regulatory Systems (Courts) Amendment Bill (Bill No. 117-1) on the grounds that several provisions:

• Restrict public access to court and judicial information, reducing transparency and public trust in the justice system.
• Grant coroners excessive discretion to close inquiries prematurely, limiting accountability for unnatural or violent deaths.
• Introduce electronic juror selection without sufficient safeguards, raising fairness and security concerns.
• Expand the powers of Family Court Associates beyond what is appropriate, reducing judicial oversight in key family law matters.
• Further limit the ability of defendants to access witness information, potentially impacting fair trial rights.

While some technical amendments in the bill are reasonable, these provisions undermine fundamental legal principles and must be removed or significantly amended.

Recommended Removals and Amendments

1. Restriction on Access to Court Information

Relevant Provisions:

• Clause 4 (New Section 236, District Court Act 2016)
• Clause 6 (New Section 173, Senior Courts Act 2016)

Issue:

• These clauses restrict access to judicial and court information, preventing public and media scrutiny of court decisions.
• The bill makes no provision for balancing transparency with privacy considerations, potentially undermining open justice.

Recommendation:

• Remove these new sections entirely and retain the existing framework.
• If any restrictions are necessary, include a provision for judicial discretion to allow access where it serves the public interest.

Supporting Legal Principle: Open justice is a fundamental principle (see R v Liddell [1995] 1 NZLR 538), and restricting access without sufficient justification undermines judicial accountability.

2. Coroners’ Power to Close Inquiries Prematurely

Relevant Provision:

• Clause 31 (New Section 65A, Coroners Act 2006)

Issue:

• This clause allows coroners to close an inquiry even if the death is unnatural or violent, provided they believe no one else was responsible and no recommendations are needed.
• This could prevent scrutiny of healthcare failures, police conduct, or systemic issues contributing to unexplained deaths.
• The public interest test is vague and subjective, leading to inconsistent decision-making.

Recommendation:

• Amend Clause 31 to require a judicial review or approval (e.g., by the Chief Coroner or a High Court Judge) before an inquiry can be closed under Section 65A.
• Require coroners to provide a publicly available justification for closing an inquiry, ensuring transparency.

Supporting Legal Principle: The principle of independent and transparent coronial investigations is recognised in M v Coroner’s Court at Auckland [2022] NZHC 2525. Closing inquiries prematurely risks failing bereaved families and the public.

3. Introduction of Electronic Juror Selection Without Oversight

Relevant Provisions:

• Clause 80 (New Rule 15A, Jury Rules 1990)
• Clause 98 (New Section 198B, Criminal Procedure Act 2011)

Issue:

• The bill allows for electronic juror selection without specifying how the process will be audited or safeguarded against bias or manipulation.
• This reduces transparency, as the public, lawyers, and defendants cannot verify the selection process.

Recommendation:

• Amend Clause 80 to require an independent review or audit mechanism for electronic jury selection.
• Require an annual report on the effectiveness and fairness of electronic selection, made available to Parliament.

Supporting Legal Principle: Jury selection must be fair, transparent, and random (see Attorney-General v Reid [2009] NZCA 396). Any electronic process must be independently verifiable.

4. Expansion of Family Court Associates' Powers

Relevant Provisions:

• Clause 10 (Amendment to Section 49C, Care of Children Act 2004)
• Clause 16 (New Section 25A, Property (Relationships) Act 1976)
• Clause 20 (New Section 79A, Protection of Personal and Property Rights Act 1988)

Issue:

• The bill allows Family Court Associates to issue final orders in parenting disputes, relationship property cases, and personal rights matters.
• There is no mention of specific training or oversight requirements, despite these being high-stakes legal decisions.

Recommendation:

• Remove Clause 10, Clause 16, and Clause 20 to retain judicial oversight over final orders in family law cases.
• If Family Court Associates are to have expanded powers, introduce clear qualification and appeal mechanisms to ensure fair decision-making.

Supporting Legal Principle: The complexity of family law requires careful judicial assessment (see S v S [2014] NZHC 693). Allowing lower-level officials to decide such matters risks unjust outcomes.

5. Further Restrictions on Witness Information in Criminal Cases

Relevant Provisions:

• Clause 94-96 (Amendments to the Criminal Disclosure Act 2008)

Issue:

• The bill further restricts defendants' access to witness information, including workplace addresses, making it harder to investigate credibility.
• This could limit fair trial rights, particularly when witnesses provide conflicting statements.

Recommendation:

• Amend these clauses to allow case-by-case judicial discretion in disclosure decisions, rather than blanket restrictions.
• Ensure any new restrictions comply with fair trial protections under the New Zealand Bill of Rights Act 1990, Section 25.

Supporting Legal Principle: Fair trial rights require defendants to have adequate information to prepare a defence (R v Hines [1997] 3 NZLR 529). Excessive restrictions could undermine the right to a fair trial.

Conclusion and Call for Action

This Bill contains several provisions that are contrary to principles of transparency, fair trial rights, and judicial accountability.

I urge the Committee to:

1. Remove or amend Clauses 4 and 6 to ensure continued public access to court records.
2. Amend Clause 31 to require judicial oversight before coroners can close inquiries.
3. Introduce safeguards for electronic jury selection (Clause 80, Clause 98).
4. Restrict the expansion of Family Court Associates' powers (Clauses 10, 16, and 20).
5. Allow fair trial discretion in witness information disclosure (Clauses 94-96).