HUMANISMO

For a democratic society to function adequately the effective resolution of disputes is essential.² The effectiveness of an adjudication system depends on an individual‟s ability to access it and to be able to use it easily for dispute resolution. Access to justice is a recurring theme commented upon by academics, organisations and individuals because of its importance to the rule of law and the rights of individuals to the protection of the law.³ The precise meaning of access to justice may vary depending on the context in which it arises and the weight that different user groups give to different factors pertinent to their needs.

In the employment context, the nature and importance of work, particularly in modern society, means that people often define themselves by their employment status. Access to justice when employment security is at risk is therefore very important. Ellen Dannin suggests „work is not just a private matter‟ but it affects all areas of our lives:⁴

Our own jobs – or lack of them – give us our status, our friends, our enemies, our viewpoints, our opportunities, and our children‟s opportunities – or lack of them. Work provides structure and organizes our days, our weeks and our years… The content of the pay packet, what the job does to the human body and spirit, and the opportunities it creates or stifles – all these spill over into our environment.

2 Sir Ivor Richardson, „The Courts and Access to Justice‟ (2000) 31 Victoria University of Wellington Law Review 163: „[T]he equal protection of the law and the due process of the law underpin the resolution of disputes between citizen and citizen, and citizen and the State. That is fundamental to the functioning of democracy.‟ See also, New Zealand Human Rights Commission, Access to Justice, Paper presented to the Royal Commission on Social Policy, 25 November 1987, 1; „It is not possible to attain a fair society if the citizens of that society are denied or otherwise restricted in their ability to obtain equal access to justice.‟

3 Joanne Morris, Women‟s Access to Legal Services: Women‟s Access to Justice, He Putanga Mo Nga Wahine Ki Te Tika (1999) 1. See also, Access to the Law. A research and Discussion Paper, Department of Justice, Planning and Development Division, October 1981, Foreword; „The social health of a nation can be judged by the way it provides access to the law to enable people to exercise the rights that every citizen has.‟

4 E J Dannin, „Confronting the Employment Contracts Act‟ (1997) 28 California Western International Law Journal 1, 2.

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Losing a job may have an immediate or delayed impact, could result in a person dropping in social status and may affect the health and very existence of a person.⁵

3.2.1 D

A

J

Access to justice is defined as the provision by the State of timely, affordable, easily accessible and independent dispute resolution services, including access to appellate bodies and the provision of appropriate representation. Ideally, a justice system should be easily understood, participants should be treated fairly during a process and outcomes should be just and appropriate to the circumstances of each case. The principles required to implement this ideal are well set out by Lord Woolf in his report on access to justice.⁶ The report indicates that a civil justice system should:

(a) be just in the results it delivers;

(b) be fair in the way it treats its litigants;

(c) offer appropriate procedures at a reasonable cost;

(d) deal with cases with reasonable speed;

(e) be understandable to those who use it;

(f) be responsive to the needs of those who use it;

(g) provide as much certainty as the nature of particular cases allows; and (h) be effective: adequately resourced and organised.

A mental picture of what the ideal of access to justice would look like was provided by Joanne Morris in a study which utilises the metaphor of the justice system being like a public building to which all citizens should have access.⁷ The difficulty, according to Morris, is whether or not all citizens know where the building is and have access to it, the location of the entrance ways may not be common knowledge, and navigating the routes

5 Ibid. For further discussion on the economic context of employment, see Gordon Anderson, „The Origins and Development of the Personal Grievance Jurisdiction in New Zealand‟ (1988) 13 NZJIR 257, 258.

6 Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System (1996) 2.

7 Joanne Morris, Women‟s Access to Legal Services: Women‟s Access to Justice, He Putanga Mo Nga Wahine Ki Te Tika (1999) 1.

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through the building to the relevant rooms may be near impossible.⁸ Morris further suggests:

In terms of the metaphor, some New Zealanders cannot find or use the pathways to the public building which is the justice system. Some cannot afford the price of entry. Some find the corridors to the rooms they need to visit so cluttered as to be impassable. They are compelled to exit through the building‟s windows rather than its doors. Barriers such as these thwart the achievement of the justice system‟s purpose – to secure the protection of law and just outcomes for all.

Morris‟ acknowledgement of outcomes as an important aspect of access to justice invites discussion of the wider legal process and the consequences for users. In contrast, other definitions tend to focus largely on access to the „front door‟ only or discuss access to justice without providing a specific or wider definition.

While access to justice is not a principle enshrined in a New Zealand „constitution‟ as of distinct right, there are indirect legislative provisions referring to the issue.⁹ Many of these provisions are based on International Labour Organisation Conventions and other international documents to which New Zealand is a signatory. For example, Articles 8 and 10 of the Universal Declaration of Human Rights 1948 provide the rights of individuals to

„full equality to a fair and public hearing‟¹⁰ by an independent tribunal and „the right to an

8 Ibid 2.

9 New Zealand does not have a formal written constitution, but constitutional principles are held in various pieces of New Zealand legislation, for example the New Zealand Constitution Act 1986, and also embodied in Parliamentary Conventions. This contrasts with Canada where access to justice is entrenched in the Canadian Charter of Rights and Freedoms, s 15(1); „Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.‟

10 Universal Declaration of Human Rights 1948, art 10; „Everyone is entitled to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.‟

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effective remedy.‟¹¹ Similarly, the International Covenant on Civil and Political Rights 1976 contains several Articles addressing access to justice matters.¹²

In general terms, international conventions and treaties do not have authority in New Zealand law unless contained in domestic legislation.¹³ However, the development of New Zealand law has shown that where international instruments have been ratified by the New Zealand government the courts have interpreted domestic legislation in accordance with the principles contained in such international instruments. Even without ratification the courts have found that the rights under discussion have been so fundamental that it would be inappropriate not to interpret the law „in accordance with generally accepted international rules and in accord with New Zealand‟s international obligations.‟¹⁴

In an employment law context, International Labour Organisation Conventions contain provisions setting standards including provision for the rights of individuals where their employment has been terminated which are closely reflected in current New Zealand

11 Ibid, art 8; „Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.‟

12 International Covenant on Civil and Political Rights 1976, art 2.3(a) provides for an „effective remedy‟;

art 2.3(b) provides the right to competent judicial, administrative or legislative determination of such remedies. Art 14.1 provides: „All persons shall be equal before the courts and tribunals. In the determination of any criminal charges against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.‟

Art 26 provides: „All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.‟

13 See Ashby v Minister of Immigration [1981] 1 NZLR 222; R v Secretary of State for Employment [1997] 2 All ER 273. However, according to John Hughes, Paul Roth and Gordon Anderson (eds) Personal Grievances (2006) 3.44 „The Role of International Conventions‟, „some modification of this view has been suggested in relation to treaties establishing norms of international human rights.‟ See Tavita v Minister of Immigration [1994] 2 NZLR 257.

14 Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) [1999] 1 ERNZ 460 (CA). See, John Hughes, Paul Roth and Gordon Anderson (eds) Personal Grievances (2006) 3.44 „The Role of International Conventions.‟

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personal grievance legislative provision.¹⁵ Although ILO Convention 158 has not been ratified, the New Zealand Court of Appeal has held that „the terms of, and decisions upon, international instruments dealing with fundamental rights‟ should be referred to „when interpreting the scope of those rights under our Bill of Rights Act and other relevant legislation.‟¹⁶ This approach was supported in the Employment Court by Chief Judge Goddard in Smith v Radio i Ltd;¹⁷ where he indicated that: „The state of employment law in New Zealand is capable of being influenced by international minimum standards, the inspiration for some of which came originally from this country.‟ Various aspects of ILO Conventions are now explicitly incorporated in the Employment Relations Act 2000.¹⁸

On a wider front, the lack of an explicit constitutional basis for access to justice in New Zealand was criticised by B V Harris who believed that „the principle of equal access to justice warrants the status of a foundation constitutional principle‟, an opinion endorsed by Lord Diplock and others before him.¹⁹

15 International Labour Organisation Convention 158, Article 8: „A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.‟ Convention 158, Article 9(b) provides that the impartial body „shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice.‟

16 Eketone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783 (CA) Gault J applying Ministry of Transport v Noort [1992] 3 NZLR 260.

17 Smith v Radio i Ltd [1995] 1 ERNZ 281.

18 Employment Relations Act 2000, s 3 gives one of the objects of the Act as promoting the observance of the principles underlying ILO Conventions 87 and 98. Employment Relations Act 2000, s 66 reflects aspects of the Smith v Radio i Ltd decision and reasoning regarding fixed term employment. See, John Hughes, Paul Roth and Gordon Anderson (eds) Personal Grievances (2006), 3.44 „The Role of International Conventions.‟

19 B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995]

NZLRev 282 (emphasis in original). See Bremer v South India Shipping Corporation Ltd (1981) AC 909, 917; Lord Diplock, „Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes… The means provided are courts of justice to which every citizen has a constitutional right of access.‟ Cited in Lord Woolf, Access to Justice:

Interim Report to the Lord Chancellor on the Civil Justice System (June 1995). See also B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995] New Zealand Law Review

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Whilst as discussed above, there is no central constitutional document which provides for access to justice in New Zealand, the topic continues to be subject to debate. In general terms, there has been an increased awareness of the principle of access to justice within the legislative framework, where varying approaches have been taken to different legal processes. For example, s 4 of the Maori Language Act 1987 permitted the use of Maori language in courts, thus improving access to justice for some Maori, and the Children, Young Persons and Their Families Act 1989 created a greater opportunity for offenders and their victims to be involved in resolving their problems.²⁰ There was also extensive discussion during the 1990s on the provision of legal aid. The reform of the Legal Services Act 1991 was undertaken in 1994, which had significant impact on the availability of legal aid assistance to parties in disputes.²¹ The importance of the availability of legal aid to facilitate access to justice is discussed in more detail in Chapter Eight.²²

The New Zealand Bill of Rights Act 1990 does not specifically contain a definition of access to justice but does provide for the prohibition of discrimination and „appear[s] to assume a right of access to the courts.‟²³ In the Bill of Rights White Paper the Justice and Law Reform Select Committee commented that unless the Bill of Rights provided for

282, 285, who argues „the primacy of the principle of equal access to justice was recognized in Magna Carta 1215: “To no one will we sell, to no one will we refuse or delay right or justice”.‟

20 B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995]

NZLRev 282, 285. Harris also cites the Resource Management Act 1991 where the legislature created statutory rights of appeal, giving statutory recognition to the principle of access to justice.

21 Review of the Legal Services Act 1991, Legal Services Board (1994).

22 See Chapter 8.2.3(a).

23 Bill of Rights Act 1990, s 21, sets out the prohibited grounds of discrimination. Discrimination in employment matters is covered in ss 22 and 23. See also B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995] NZLRev 282, 286.

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guaranteed access to the courts it would be „irrelevant to the mass of people within this society who do not enjoy the “right of access to justice” at the present time.‟²⁴

Likewise, the Human Rights Act 1993 gave access to individuals complaining about discrimination to a mediation and investigation process conducted by the Human Rights Commission.²⁵ An appeal right beyond this is available to the Complaints Review Tribunal and in some circumstances to the High Court.²⁶

Whilst individuals require access to justice to obtain and potentially enforce their legal rights, the State too has an interest in maintaining control over central functions and obligations which it is required to provide. In some circumstances the interests of the individual may be opposed to those of the State or may need to be balanced against public and fiscal interests. Harris commented that „[n]otwithstanding the attractiveness of the ideal of equal access to justice, the inevitable fiscal constraints on Government mean that it will only remain aspirational.‟²⁷

It is submitted that despite fiscal limitations, the Government is under an obligation to provide equitable access to the justice system. As Rosalie Abella J said in 1983:²⁸

24 Sir Ivor Richardson, „The Courts and Access to Justice‟ (2000) 31 Victoria University of Wellington Law Review 163, 164, citing the Justice and Law Reform Select Committee Interim Report of the Justice and Law Reform Select Committee: Inquiry into the White Paper, A Bill of Rights for New Zealand (1986).

25 Under s 5(g) Human Rights Act 1993 the Human Rights Commission also had the authority to investigate matters without an individual complaint: „The functions of the Commission shall be – (g) to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that human rights are, or may be, infringed thereby.‟

26 Human Rights Act 1993, s 83.

27 B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995]

NZLR 282, 309.

28 Justice Rosalie Abella, 1983, cited in Joanne Morris, Women‟s Access to Legal Services: Women‟s Access to Justice, He Putanga Mo Nga Wahine Ki Te Tika (1999) 1, 107.

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Anyone…who needs legal services should have access to them, regardless of financial, communication, or physical barriers. To deny access to legal services is to deny at the outset access to the law. To deny access to the law is to deny justice, and to deny justice to some is to threaten the integrity of all.

Failure to provide access to the judicial process not only prevents differences from being resolved but it may also cause people to „unnecessarily suffer continuing injury, losses and disadvantage, or arbitrarily be denied a remedy for past injuries, losses and disadvantage‟.²⁹ However, in a paper prepared by the New Zealand Human Rights Commission in 1987, the Commission states that although legal remedies were in theory available to all, there were often practical difficulties placed in the way of those who most needed assistance.³⁰

Access to any dispute resolution process should be complete. This should include access to any appellate court to rectify any errors in the law made by the lower court, to ensure any legal interpretation is correct³¹ and that any compensation awarded is adequate in the circumstances.³² Access at appellate level is particularly affected by legal funding issues, including legal aid remuneration levels.³³ A survey of legal practitioners in 1997 showed that there was marked dissatisfaction with legal aid rates for senior practitioners and with

29 B V Harris, „Equal Access to Justice: A Constitutional Principle in Need of a Higher Profile‟ [1995]

NZLR 282, 284.

30 New Zealand Human Rights Commission, Access to Justice, Paper presented to the Royal Commission on Social Policy, 25 November 1987, 11.

31 Sir Ivor Richardson argues that „access‟ is usually seen as access to the lower courts, but the „ability to access appellate courts may be equally important… an appeal court is able to correct errors made in the lower courts. This function is directly concerned with doing justice to litigants as it ensures that the determination of their rights in the court below was made upon a correct understanding of the law.‟ Appellate courts also fulfil an important function in the development of the law. See Sir Ivor Richardson, „The Courts and Access to Justice‟ (2000) 31 Victoria University of Wellington Law Review 163, 164.

32 Although the level of compensation does not directly affect access to justice it could act as a disincentive to parties who may have legitimate grounds for a personal grievance if levels are too low or the potential of costs awarded against the party would negate the compensation award.

33 Gabrielle Maxwell, Paula Shepherd and Alison Morris, Legal Aid Remuneration: Practitioners‟ Views, A Report to the Legal Services Board, Institute of Criminology (August 1997) 5.

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guideline fees for appeals and preparation time.³⁴ This could have resulted in a disincentive for senior practitioners to act in legal aid cases and reduced the likelihood of taking cases to appeal.

Complete access also means access to representation to ensure guidance through what may be a complex legal process. Sir Ivor Richardson identified that access to justice was not restricted to accessing the courts but included having assistance to find your way through the court system.³⁵ Access to the court represents only the first stage in accessing justice. A person will also need assistance to present their case in the most effective manner and put

Complete access also means access to representation to ensure guidance through what may be a complex legal process. Sir Ivor Richardson identified that access to justice was not restricted to accessing the courts but included having assistance to find your way through the court system.³⁵ Access to the court represents only the first stage in accessing justice. A person will also need assistance to present their case in the most effective manner and put