Why is the Government backtracking on publishing court judgments?

There is a bill going through Parliament called the Judicature Modernisation Bill. It is a technical and reasonably innocuous reform of New Zealand’s judicial administration.

It was supported unanimously at first reading and second reading.

One of the interesting features of the Judicature Modernisation Bill was that it would require (Clause 401) final judgments to be published online of District Courts.  At present, only the judgments of the High Court, Court of Appeal and Supreme Court are published online as a matter of course – on Judicial Decisions Online.  So this reform would mean District Court judgments would now be routinely published online. This would be great as it would lead to much more open justice.

As present you have to request release of a district court judgement from the Judge and provide reasons for your request.  This is highly unsatisfactory. Courts should not be secret.

But something very unusual has just happened.

The Minister of Justice, Amy Adams, has recently published an SOP (Supplementary Order Paper), an amendment if you like, to the Bill before Parliament that completely strikes out the section requiring judgments to be published.

The explanation in the SOP says the publishing of judgments will remain at the discretion of the Judiciary – as is now the case. This is a major backdown, considering it was in the bill at first and second reading and at select committee.

Let’s be clear, if the law does not require judgments to be routinely published online, they won’t be – except for those already being published for the “Senior Courts”.

It is bad enough to remove this clause, but worse to try and do so at committee stage which means it bypasses the select committee.

I hope that Labour, Greens, NZ First, Maori Party, ACT and United Future vote against deleting Clause 401 and vote in favour of open justice. We’ve had widespread Internet for around 20 years now. Having all court judgments online is well overdue.

The original Clause 401 allowed some judgments not to be published if met certain criteria (Family Court, Youth Court, suppression) but set a presumption in favour of publication. This is the correct setting. It is sad to see the Government backtracking on this.

UPDATE: The Office of the Chief District Court Judge has helpfully pointed out that some District Court judgments are now published online at their website.  They announced last month:

A new website, www.districtcourts.govt.nz, has started publishing judicial decisions from the District Courts. The website is run from the Office of the Chief District Court Judge and marks a significant milestone in the modernisation of New Zealand’s District Courts. About 200,000 criminal, family, youth and civil matters come before the District Courts every year, where 160 judges make about 25,000 decisions, sentences or orders. 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.

It is good to see this occurring. However 4,000 out of 25,000 decisions is a small minority. Fundamentally I think the default setting should be opt out, not opt in. That is the decision should be published unless there is a strong reason not to, rather than it only get published if someone thinks it is of interest.

I still hope Clause 401 is retained. If there are worried about the capacity to cope, then one could delay the date it comes in, rather than remove the requirement.

UPDATE 2: A statement from the Minister:

“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.

 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.

 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.

 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.

 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.

 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. All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”

I think $1 million a year is not unreasonable for open justice. Also if it was such a bad idea to publish all these decisions online, why was it in the bill in the first place? Why was the cost not flagged at the select committee so MPs could consider fully whether the benefits are worth the cost.