HUMAN RIGHTS IN NEW ZEALAND 20 1 0 Speaking to the Bar Association’s AGM in September protections and may impact negatively on the right to 2009, Attorney-General Christopher Finlayson said the justice. These include, for example, restricting availability quality of the bar needed to improve. He made a number of jury trials. 52 of suggestions for reform, including improvements to preadmission professional legal education and mandatory continuing legal education, at least for those in the early years of legal practice. There was also a move to introduce a form of trial by video, in which defendants held in custody could be denied their right to be physically present at their trials. The Human Rights Commission expressed its opposition Unfortunately, what I am picking up [from to a select committee hearing, arguing that this infringed speaking with judges about any concerns they the BoRA right to be present at trial, but it was only may have] is counsel incompetence. Some during the parliamentary debates at the third reading that people contend that the overall standard of this particular proposal was effectively dropped. While the bar, and particularly the criminal bar, these proposed changes are designed to further simplify is not high enough in New Zealand and that procedures and deliver ‘justice’ to victims, 53 they also is why we have so many delays… Too many have significant implications in relation to the realisation lawyers practising at the bar are incompetent of the right to justice. or worse and there is no proper means of assessing their competence.  50 Historic claims of abuse while under the care of the State Following this speech, the New Zealand Law Society There are a significant number of claims before the courts announced restrictions on barristers practising without relating to abuse and mistreatment suffered while under supervision in their first three years following admission the care of the State. The courts have heard five cases to the bar. 51 This will go some way toward ensuring that barristers sole are given adequate supervision as they begin to practise. Excessive delays in court proceedings Section 25(b) of the BoRA provides that everyone charged with an offence has “the right to be tried without undue delay”. The current average wait for a jury trial in the High Court from committal to trial date is 305 days, and to date, all of which have failed, primarily because of technical legal defences such as a time-bar. 54 It has been suggested a number of times that the courts are not an appropriate forum for dealing with claims of historic abuse, and that the Government should consider other ways of resolving them. Dame Margaret Bazley stated in her report on the legal aid system: 55 for the District Courts 283 days. In 2008, Parliament The historic abuse claims in particular have passed the Criminal Procedure Bill, which contains a the potential to place enormous pressure on number of procedural reforms aimed in part at addressing the LSA’s [Legal Services Agency’s] granting issues of efficiency in the justice system. process and on legal aid expenditure, both However, a raft of recent criminal justice proposals have tested the strength of New Zealand’s constitutional because of the large number of claims and the high cost involved. Urgent consideration 50 Christopher Finlayson, Counsel’s Duty to Cooperate – Achieving Efficiency and Fairness in Litigation, 2009 51 New Zealand Law Society (2010), Starting Practice as Barrister. Accessible online at http://www.lawsociety.org.nz/home/for_lawyers/ regulatory/starting_practice_as_a_barrister. Under regulations expected to be promulgated by the middle of 2010, applicants must have had at least three years’ relevant legal experience in New Zealand within the last eight years before they can start practice as a barrister. 52 Section 24 of the BoRA currently provides the right to trial before a jury where a person is charged with an offence which carries a penalty of three months or more. 53 See also Ministry of Justice (2009), ‘A Focus on Victims of Crime: A Review of Victims’ Rights’ (consultation document), (Wellington: Ministry of Justice). Accessible online at http://www.justice.govt.nz/publications/global-publications/a/ a-focus-on-victims-of-crime-a-review-ofvictims-rights 54 The Commission is currently undertaking a review of New Zealand’s response to historic claims of abuse while under the care of the State. 55 See also J v CHFA CIV-2005-485-2678, 16 November 2007 99