Recently David Farrar in Kiwiblog commented on the decision of the Government to step back from a provision – Clause 401 – of the Judicature Modernisation Bill requiring final decisions of the District Court to be published online. I thought I would expand on his piece.
The deleted Clause 401 reads:
(1) Every final written judgment of the court (excluding the Family Court, the Youth Court, and the Disputes Tribunal) must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.
(2) Good reason not to publish a judgment or part of it includes the following:
(a) non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:
(b)the judgment falls into a category of judgments that are of limited public value:
(c) taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.
(3) In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—
(a) a written reserved judgment; or
(b) an oral judgment transcribed by an official transcription service.
I was gratified when I saw this section was to be part of the Act. It was the culmination of a process in which I had been involved since 1996 to have the decisions of all the New Zealand Courts made available online.
The proposition is not that revolutionary. In common law countries – those that have inherited or adopted the English system of justice – the decisions of the Courts interpret and develop the law. The Internet meant that the decisions of the Courts could be released from the restrictions of paper and library shelves and be available for distribution to all. As a society that holds that ignorance of the law is no excuse it seemed perverse that there should still be obstacles to knowing what the law was.
The path to publication of the decisions of the Courts was not an easy one. I won’t traverse that story here. Suffice to say there was resistance from a number of unexpected quarters and a lack of understanding of the importance of the concept of the transparent operation of the Courts.
The decisions of the appellate Courts such as the Court of Appeal and the Supreme Court are available from the Courts of New Zealand Website as well as the clunky and difficult to navigate Judicial Decisions Online (JDO) where the decisions of the High Court may be found. Decisions are also available from the excellent if underfunded and little appreciated NZLII (New Zealand Legal Information Institute) where the search capabilities are a little easier in terms of analysing results than JDO and the databases are larger.
All that remained was for the decisions of the District Court to be made available online. Having a requirement in legislation made compliance mandatory. It was going to be a large task but there were a number of alternative ways in which it could be accomplished. But mandatory publication will now not take place.
All is not lost. The District Court recently launched its own website and selected decisions of the District Court will be made available. Upon its release
Chief District Court Judge Jan-Marie Doogue said that from now on, a Publications Unit working under an editorial board of senior judges, will select for online publication those decisions considered of high public or legal interest and which meet criteria for publication. This calendar year, the website expects to publish about 2500 decisions, rising to about 4000 next year.
That is to be applauded. But if Clause 401 had remained it would have required funding. And that seems to have been an important driver. Recently the Minister of Justice released a statement explaining why Clause 401 had been removed. I reproduce it below along with my comments and critique.
“The Justice Ministry has advised me that each year the District Court (excluding the Family Court and Youth Court) delivers 15,300 final decisions that would fall within the scope of the requirement in the Bill.
They are made up of:
* 300 written decisions (reserved judgments), mainly delivered in the civil jurisdiction; and
* 15,000 transcribed oral decisions, including civil and criminal judgments, and sentencing notes.
The District Court doesn’t publish its judgments online, because it does not have the judicial resource that senior courts have in the form of Clerks and other judicial staff.
This is the first problem. The publication of decisions should have been properly resourced from the beginning rather than be left to existing internal arrangements. That said, there is in existence a database of decisions available on the internal Court system where decisions are collected and indexed. This is done as decisions are transcribed either by the transcription service or Judges’ PAs.
The sheer volume of decisions by the District Court alone make it difficult for every decision to be published, especially due to the fact 15,000 oral decisions would need to be transcribed, checked, and for each Judge to sign off on each decision before they are published.
Believe it or not a large number of decisions are transcribed and must be signed in hard copy by Judges. Included in these are decisions declining bail and sentencing decisions. If one looks at the proposed clause 401(3) the definition of a final written judgement reduced the volume quite considerably. I recall when we were discussing the publishing criteria for judgements in the early phases of the campaign for putting decisions online the test was “a final decision of a contested issue between the parties or the sentence imposed in criminal matters.” Furthermore the provisions of Clause 401(2)(a) – (c) provided a further filter. This seems to have been overlooked.
The resourcing of staff alone to begin publishing final judgments would result in an increase of at least 10 FTE publication staff, at approximately $1 million. This does not take into consideration other staffing increases, training, overhead costs, equipment, and increases in workload. The vast majority of these decisions are also oral, meaning transcribing services would need to be resourced and serviced.
That is probably correct if it is done internally. Given that the Courts are an arm of Government I would have thought that the obligation of making law available to the people in a free and democratic society would be something that should be provided at a reasonable cost. In the overall scheme of things $1 million is a small price to pay for transparent justice.
Considering there is essentially no precedent value (i.e. decisions do not bind the higher courts, and they are often just a straight declaration of sentence rather than reasoning) in the decisions made by the District Court, the time, effort and resource that transcribing would take would add little value to access to justice.
This is a red herring. True, the decisions of a District Court are not binding on the higher courts although they can be helpful if the issue has been considered below and needs to be critiqued on appeal or in other proceedings higher up the hierarchy. Precedent brings with it consistency, and a consistent approach has been a touchstone of our justice system. By and large, like cases should be treated alike. And so it is that the availability of District Court decisions enhances consistency. Not only do the public get a chance to see that a consistent approach has been adopted. Lawyers are able to access to database to properly advocate a position based on earlier similar outcomes thus maintaining and ensuring consistency.
I can recall that for many years counsel and law researchers have struggled with the fact that sentencing decisions of the District Court in Health and Safety prosecutions, Fisheries prosecutions and other prosecutions by Government departments have not been available so that a position may be advocated on the basis of earlier cases or clients can be advised of likely outcomes. A central database of decision would have been helpful in this regard.
Furthermore, to say that a sentencing decision is just a straight declaration of sentence rather than reasoning may happen for a run of the mill excess blood alcohol case, but the minute a judge is looking at anything more than a fine or low level community work, a complex analytical process is required involving identifying the circumstances of the offence, culpability levels, aggravating and mitigating circumstances both of the offence and the offender along with adjustments for guilty pleas, remorse and the like and stating them. All of these are very valuable in ensuring consistency of approach as appeal courts have often observed.
So to say that there is little value added to access to justice completely ignores the importance of consistency of approach in the decisions of the Courts which can be better informed by making decisions available online for the public and lawyers, rather than being closeted on an internal database.
To argue that all 15,000 final decisions should be made online simply for the sake of it would require significant funds and resources. That would mean less money for supporting victims, putting police on the beat, and keeping our communities safe.
For the reason just articulated – consistency of approach – the decisions would not be there “simply for the sake of it”
It’s worth noting that the judiciary have launched a new website (www.districtcourts.govt.nz<http://www.districtcourts.govt.nz>) which has started publishing judicial decisions from the District Courts. Criteria for publication in the criminal jurisdiction include sentencing notes and reserved decisions from judge-alone trials in cases of more serious offending, or cases where there has been discussion of high-level principles.
I have already commented on this. A commendable judge-led move but there are certain self-limiting factors imposed for the very reason the Minister identified earlier in her statement
All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”
As they should be, along with all the other decisions of the District Court.
Is there an alternative way to comply with the former Clause 401? Yes there is.
Perhaps the Minister and her Department could have considered taking the online dissemination of judgments out of the hands of her Ministry and the Judiciary and, as is done in Australia and England where decisions are automatically made available to the Australasian Legal Information Institute (AUSTLII) or the British and Irish Legal Information Institute (BAILII), direct the necessary funding and the database of decision to the New Zealand Legal Information Institute (NZLII) who have established expertise in this area. The resources that would be freed up in the Ministry could be translated into funding for NZLII to provide the service. It is not hard. It has been done elsewhere. There is no need to re-invest the wheel. I have advocated such an outcome for years. Once again, an opportunity has been lost.