CLJ Essay Flashcards
Introduction
Access to justice and the rule of law have an interconnected relationship and play an essential role in our society.
In New Zealand, we do hold strengths in dealing with the barriers to these principles
Although, Res ipsa loquitur - I believe the facts speak for themselves in the sense that the barriers are definitely not overcome and there is still a lot of work to do. NZ is by no means perfect.
This essay will address the concepts of access to justice and the rule of law, the 3 barriers of cost, cultural understanding and education which we face in upholding these principles, and examples on how we are going with navigating these.
P1
ACCESS TO JUSTICE
What it is - the ability of anyone in society to seek protection and resolution, through legal processes, in times of vulnerability. Being able to get help when you need it.
RULE OF LAW
It is a constitutionally important principle that the law is for all - to restrict everyone equally, and to serve and be there for everyone equally.
- No matter age, race, gender etc.
TOGETHER:
They cannot exist without each other in the sense that, without an access to justice, the rule of law is not upheld and this is an essential principle for societal cohesion, eg; If people can not access justice and the law, they will take it into their own hands which is detrimental.
P2
COST:
The first barrier to accessing justice, therefor impairing the rule of law, is cost.
Simply, many people get into trouble with the law but cannot afford to access justice and protection.
This is the justice gap - where only the people who have enough financial resources can afford remedy while others who are less financially stable cannot.
This gap goes against the rule of law completely as it means the law is not serving everyone equally.
An example of where cost is a large barrier is through Litigation. Litigation is very expensive due to court filing fees, daily rates for hearings and legal fees.
These costs have increased over the years as well, showing there is no improvement forecastable.
Litigation does, however, have benefits like public enunciation of community values, making precedent and reducing power imbalances etc.
Although, this barrier of cost means that people cannot access this avenue of justice and these benefits.
NZ has not done nothing about this barrier. Civil legal aid has been implemented to try and combat this justice gap associated with cost in civil cases.
Civil legal aid is free to all who have been arrested and consists of a list of lawyers numbers you can call day and night for advice.
Although an issue arrises in civil legal aid lawyers being a “dying breed”.
Over the years, the amount of lawyers willing to do legal aid has decreased - mostly because the payment rates are low for having to do hard work - there is no desire to do it.
As well as this, Civil legal aid is not always free, it is a loan which you have to pay back.
In my opinion, the presence of these kinds of flaws in the ‘solution’ shows that NZ could be doing more. Before we can consider outselves as defeating the cost barrier, there should be no flow on troubles like these.
A solution could be to allocate more government funding to civil legal aid (making it more desirable for lawyers), promoting more Pro Bono work, or simplifying the eligibility criteria to get civil legal aid.
I think that, if we can look to fixing these troubles, there will be less of a justice gap and therefor the rule of law will be upheld.
P3
CULTURAL UNDERSTANDING:
Another barrier to societies access to justice, and therefor upholding the rule of law, is Cultural understanding.
Like how diversity has grown to be valued amongst soceity, it should also grow to be valued amongst the judiciary who adminsiter our justice.
In NZ we have improved in gender diversity but there is a big lack of cultural diversity amongst the Judiciary
Maori are very underepresented in our judiciary which is very concerning given the herritage and history of our country.
There are many issues, today, that revolve around tikanga and treaty obligations as well as tikanga have a place in our law so it is more important than ever to have an understandign of it.
As well as this, Maori are overepresented negatively in our criminal justice system yet there is not enough judicial diversity for the judges hearing there cases to understand them and reflect this understanding in their precedent - resulting in more Maori being put on the ‘belt’ that is dificuilt to get off.
This is a big barrier in accessing justice as it means there is less trust from Maori in the system, less culturally informed and equitable decisions.
New Zealand, once again, has not done nothing to combat this though.
We have implemented Te Ao Marama which aims to mainstram therapeutic justice and the lessons from the specialist courts.
Infuses Tikanga and Te reo Maori through its processes
Ensuring people feel like they have access to justice through talking in plain language, toning down formalities, and involving everyone like the public in the process.
Although, once again, there are some issues in this solution.
It might be no issue impleneting this new approach through younger lawyers, although, older lawyers may be more stuck in their ways and not willing to adopt the solution.
There might also be regional variation in the approaches taken.
One individual might have gotten a better experience in Auckland than another individual did in Christchurch - this produces a feeling in inequity which goes against the rule of law.
One again, the presence of these flow on challenges shows that NZ still, in my opinion, has a lot of work to do.
Some solutions could be to implement mandatory training programs for all that focuses on Maori culture - like how I am learning it throughout University currently (from a personal stance it has opened my eyes to the importance of it).
Maybe also regular consultation and collaboration with Maori leaders, iwi, and hapu could help to strengthen partnerships between the justice system and Maori communities.
P4
PERCEPTIONS OF LAWYERS:
In NZ, there are many negative steryeotypes around lawyers - espeically defence lawyers.
Often, soceity will wrongly identify the defence lawyer with their client. Being unfairly criticised.
Soceity is blind to the importance of defence lawyers - they are integratal to a functioning democratic soceity and fair justice system. They uphold the rule of law as, it is meant to serve all - innocent until proven guilty.
But, these kinds of negative perceptions create a stigma around going to these lawyers for help as well as adding pressure onto the lawyers themselves, making the profession undesireable - all of which decrease the access to justice and stop the rule of law
This stops the benefits of defence lawyers being maximised.
Essentially, if people are uneducated on the importance of defence lawyers, it will make them less comfortable in going to them for jusrtice and the lawyers themselves in joining the profession - both in fear of judgement from the community.
A key example of the harm this stigma can cause is the tragic death of Greg King - who was an amazing defence lawyer but crumbled under the pressure and burden of his career.
Unlike the barriers to justice of cost and cultural understanding, this barrier is much less emphasised and has less solutions availible.
I think this, in itself, shows that much more needs to be done and New Zealand is not performing well in navigating this barrier.
I think more education around this imbalance needs to be done to tackle this stigma - for example; utilising the power of media to educate audiences.
Conclusion
Summarise:
It is evident that cost, cultural understanding and education around defence lawyers are big barriers to the access of justice in NZ - therefor posing a big issue for upholding the rule of law.
While NZ is better than other countries in synthesising solutions for these barriers, I still believe that we are not doing enough.
I think that the presence of issues within these solutions shows that we have a lot of work to do still and we are, currently, not performing as well as we can in these areas.
The rule of law is a fundamental right, not just a privilege. I don’t think that currently this is being portrayed.
NZ needs to move forward prioritising access to justice so that the rule of law can be upheld - allowing society to be cohesive and just.
As Lord Bingham outlines, if you cannot get in the door, it is meaningless.
Overall basic plan for essay
- Intro
There are 3 main barriers (list)
Res ipsa loquitur - the facts speak for themselves that, while we have made efforts to overcome them, we are not perfect.
Throughout this essay I will…. - Access to justice + rule of law pg
Define access to justice
+ Rule of law
How they relate - 1st barrier: cost
Define it + how it effects the 2 concepts
- benefits of litigation
Eg of where this barrier is
Eg of how this barrier is being combatted
Eg of how this ‘soltuion’ has issues
Shows that we need to do more
Solutions - 2nd: Cultural understanding
Define it + how it effects
How it is in NZ
Strategy implemented to combat it
The issues in the strategy
How this shows we have more work to do
Solutions - 3rd: Education of Lawyers
Define it
How this is bad
Eg of how this has caused harm: Greg King
How there are a lack of solution
Potential solution - Conclusion
Sumarise there are barriers and they are being dealt with but not enough
Still a lot of work to do
ROL is a fundamental right not a privellage
Lord Bingham
Access to justice =
Rule of law =
Interconnected =
= What it is - the ability of anyone in society to seek protection and resolution, through legal processes, in times of vulnerability. Being able to get help when you need it.
= It is a constitutionally important principle that the law is for all - to restrict everyone equally, and to serve and be there for everyone equally.
- No matter age, race, gender etc.
= They cannot exist without each other in the sense that, without an access to justice, the rule of law is not upheld and this is an essential principle for societal cohesion, eg; If people can not access justice and the law, they will take it into their own hands which is detrimental
Why is litigation expensive + trend
Litigation is very expensive due to court filing fees, daily rates for hearings and legal fees.
Increased over the years - no foreseable imrpvoements ahead
Why is litigation beneficial
public enunciation of community values, making precedent and reducing power imbalances etc.
What has been done to help the cost barrier + define
Civil legal aid has been implemented to try and combat this justice gap associated with cost in civil cases.
Civil legal aid is free to all who have been arrested and consists of a list of lawyers numbers you can call day and night for advice.
Issue with the solution for litigation
Although an issue arrises in civil legal aid lawyers being a “dying breed”.
Over the years, the amount of lawyers willing to do legal aid has decreased - mostly because the payment rates are low for having to do hard work - there is no desire to do it.
As well as this, Civil legal aid is not always free, it is a loan which you have to pay back.
Solution for cost barrier
A solution could be to allocate more government funding to civil legal aid (making it more desirable for lawyers), promoting more Pro Bono work, or simplifying the eligibility criteria to get civil legal aid.
Why is cultural understanding important
Like how diversity has grown to be valued amongst soceity, it should also grow to be valued amongst the judiciary who adminsiter our justice.
Maori are very underepresented in our judiciary which is very concerning given the herritage and history of our country.
There are many issues, today, that revolve around tikanga and treaty obligations as well as tikanga have a place in our law so it is more important than ever to have an understandign of it.
As well as this, Maori are overepresented negatively in our criminal justice system yet there is not enough judicial diversity for the judges hearing there cases to understand them and reflect this understanding in their precedent - resulting in more Maori being put on the ‘belt’ that is dificuilt to get off.
Strategy to help overcome cultural barrier + issue inside it + solution for issue inside
We have implemented Te Ao Marama which aims to mainstram therapeutic justice and the lessons from the specialist courts.
Infuses Tikanga and Te reo Maori through its processes
Ensuring people feel like they have access to justice through talking in plain language, toning down formalities, and involving everyone like the public in the process.
It might be no issue impleneting this new approach through younger lawyers, although, older lawyers may be more stuck in their ways and not willing to adopt the solution. There might also be regional variation in the approaches taken.
One individual might have gotten a better experience in Auckland than another individual did in Christchurch - this produces a feeling in inequity which goes against the rule of law.
Some solutions could be to implement mandatory training programs for all that focuses on Maori culture - like how I am learning it throughout University currently (from a personal stance it has opened my eyes to the importance of it).
Maybe also regular consultation and collaboration with Maori leaders, iwi, and hapu could help to strengthen partnerships between the justice system and Maori communities.
