by Richard Prebble

Andrew Little

Before Covid, when he was Minister of Justice, Andrew Little travelled to the United Nations and told the world: “It’s fair to say our justice system is broken”. 

But although he held spectacularly expensive hui, Little did not reform the system. 

Our courts are jammed. Last year there were 60,000 cases awaiting trial. The civil system has for years been prohibitively expensive and slow. Now the criminal system is also jammed. There is a wait of up to three years for a jury trial. 

There will be court cases today where, regardless of the verdict, the defendant will be freed. He or she will already have been in jail awaiting trial for longer than the penalty itself. 

The effects of these delays are devastating. Here is a typical case. 

A young Māori man was arrested for an offence for which he would never be sentenced to jail. He was remanded in custody for four months before being convicted, freed and ordered to attend alcohol counselling. 

He was jailed because he could not give an address for bail. 

White-collar criminals who have stolen pensioners’ life savings get bail and are then sentenced to home detention in their mansions. The homeless who have not even been sentenced get jail. 

The young man lost his job. As a remand prisoner, he was not eligible for any rehabilitation. The effect on his 3-year-old son was traumatic. 

If the injustice of that does not move you, think of the cost to the taxpayer of housing the homeless in jail. 

Fifty years ago when I was practising law, the man’s case would have been dealt with by the magistrate the day after the arrest. 

In New York, I observed the famous night court. In that city the young man’s case would have been dealt with on the same day as his arrest. He would not have spent a single night in the cells, and would have been back at work the next day. 

Not everyone caught up in the legal system is guilty. Twenty-five per cent of jury trials do not result in a conviction. But even those on bail find their life on hold, and there is no compensation for those who are found not guilty. 

We used to boast that New Zealand could hold a murder trial and the appeal before the United States could select a jury. Today, New Zealand has a higher percentage of our prison population awaiting trial than America does. 

The International Centre for Prison Studies publishes a table of the proportion of the prison population awaiting trial in every country. 

Twenty-one years ago we had 749 people in jail awaiting trial, or 13.3 per cent of the prison population. 

Today there are 3500 people in jail waiting for trial, or almost 40 per cent of our prison population. We have almost the same percentage of prisoners awaiting trial as Senegal or Guyana. With such a high percentage of remand prisoners, how can we claim to be a civilised society? 

Along with the growth in remand prisoners is the growth in the number of Ministers of Justice and associates. The ministry website lists five of them: Willie Jackson is implementing the UN Declaration on the Rights of Indigenous Peoples. Aupito Su’a William Sio is apologising for the dawn raids in the 1970s. What Kelvin Davis and Marama Davidson do in Justice is a mystery. 

What none of them is doing is fixing our broken justice system. 

Chief Justice Dame Helen Winkelmann said last year “the remand population is unacceptable, the court system is too complex and the cost of litigation is too high”. Her solution is a “special committee” to work with the Ministry of Justice. 

With the greatest respect to her Honour, we did not get our common law liberties by judges forming committees with the executive. We have our liberties because courts issued bold judgments curtailing the abuse of state power. 

Parliament has tried to ensure speedy justice. The Bill of Rights legislated that “everyone has the right to be tried without undue delay”. The judges have gutted the right to a speedy trial by ruling “undue” means “unjustified”. Lawyers can justify any outrage. 

I was one of the MPs who voted for the Bill of Rights. If we had meant “unjustified”, we would have said so. 

The courts must stop waiting for ministers to act. Justice is not a priority for a government that sets up MIQ as a lottery. 

The courts have the power to fix the justice system. Judges have inherent power to sanction parties who delay trials with meritless time-wasting applications. Judges can also dismiss prosecutions for undue delay. It is time they did. 

If our courts were to adopt the stance of the Canadian Supreme Court, that any trial delay over 18 months is undue delay, then thousands of cases would be dismissed and hundreds of remand prisoners would be freed. 

Now that would make fixing our broken justice system ministers’ top priority. 

• Richard Prebble is a former leader of the ACT Party and earlier a Labour Party cabinet minister.