Auditor-General's overview

Court workloads have increased significantly in recent years, and forecasts show that the number of cases brought before the courts will continue to grow.

The majority of cases before the courts are in the criminal summary jurisdiction handled by the District Courts. In the year to 30 June 2009, 207,623 new criminal summary cases (that is, less serious criminal cases not requiring jury trials) came before the District Courts – an increase of 29% since 2005.

If increasing court workloads are not managed well, there can be a delay in the time it takes to decide cases. That delay, and its associated uncertainty, can significantly and adversely affect people's lives.

We have audited the effectiveness and efficiency of the Ministry of Justice (the Ministry) in its work to help District Courts and the High Court deal with their increasing workloads.

It is important to understand at the outset that the work of the Ministry is bound by three main constraints.

First, the court system is not controlled by the Ministry. That is because the Ministry is part of a constitutionally separate part of government – the executive. The Ministry can provide advice on the court system as a whole, and it is responsible for the quality of administrative support provided to the judiciary. But it has very little control over individual cases. How a case is dealt with is the constitutionally prescribed role of the judicial branch of government.

Secondly, judges and court staff have only limited ability to manage the flow of cases through the courts:

• the progress of criminal and civil cases is controlled largely by the parties (such as defendants/the accused and, for civil cases, plaintiffs); and
• a case is unlikely to go ahead until all the court participants are ready to proceed, and can come together in the right order at the right time (a reasonably complex case could involve judges, lawyers, the parties, any number of experts and witnesses, and government agencies, as well as court officials).

Thirdly, efficiency is not the primary focus of the court system. In criminal cases, the focus is on the right of the accused to a fair trial. In civil cases, the focus is on the court as an impartial forum for resolving disputes.

For all those reasons and more, the Ministry's task in helping to manage court workloads is complex. It needs to balance a range of competing aims, and it needs to work collaboratively with others in the justice sector, particularly the judiciary and the legal profession. And it needs to do this in a way that does not impinge on the constitutional separation of the three branches of government.

Overall, I am pleased by what my staff found in our audit of the Ministry. The Ministry is well positioned to further develop and provide support for measures designed to deal with increasing court workloads. The Ministry's plans for helping to manage increasing court workloads involve a series of projects expected to improve the efficiency of the courts. The Ministry is also aware that more judges, courtrooms, and registry staff will probably be needed.

The Ministry works closely and well with the rest of the justice sector. All the initiatives the Ministry has under way to address court workloads involve multiple members of the sector. All the members of the justice sector with whom we spoke said that they worked regularly and closely with the Ministry on relevant projects. The Ministry cannot carry out these projects on its own, so working collaboratively with other members of the sector is critical for the projects to proceed.

Our audit reviewed the information the Ministry shares with other members of the justice sector, select committees, and Ministers, and my staff found that it aligns well with the Ministry's internal information. My staff also found that the Ministry collects an appropriate range of performance information about the courts.

Individual courts are reviewed every 24 to 30 months by the Ministry's court review team. These reviews measure and monitor the performance of individual courts, providing the Ministry and judiciary with valuable information about the performance of these courts.

There are small differences in how courts function. These differences reflect differences in judicial procedure, workloads, the physical layouts of courts, and pilot projects that are often carried out locally. I do not have any concerns about these differences, but my staff consider that there is an opportunity to improve the way that information about better practice is identified then shared with all courts.

There are no simple solutions to make the courts run more efficiently. Ultimately, the progress of any particular case is driven by the parties and the other court participants. And, as Dame Margaret Bazely noted in her recent review of Legal Aid,¹ the parties – and sometimes their lawyers – can deliberately prolong the court proceedings.

Although I am pleased with what our audit found at the Ministry, the courts are likely to remain under considerable pressure for the foreseeable future. Managing future court workloads will require the Ministry's continuing leadership of the justice sector along with significant contributions and support from all of the other court participants. Improving court efficiency, and therefore the timeliness with which people get justice, is a challenge and is the responsibility of the wider justice sector.

It is worth noting that work is under way in the sector that has the potential to help ease pressure on the courts. Major work is being done to understand the "drivers" of crime, because understanding the root causes of crime enables actions to be taken that could reduce the number of people entering the court system. Also, the justice sector pipeline model allows the financial and other consequences of specific initiatives to be measured at each stage of the justice process. This could make it possible to generate a more informed and co-ordinated justice sector response to proposed changes in the court system; for example, after the introduction of a new policy or operational strategy. In my view, work in these areas could reduce pressure on the courts and the complexity of the court system.

Our audit has shown that the Ministry is responding well to challenges. It is important that the Ministry continues to do so, while recognising that it alone cannot resolve the issue of court workloads or the efficiency of the courts.

I thank the staff of the Ministry and the many other people who provided my Office with assistance and co-operation during this audit. Although the audit was carried out before I took up the role of Controller and Auditor-General, I agree with and endorse its findings.

Lyn Provost
Controller and Auditor-General

15 December 2009

1: Ministry of Justice (2009) Transforming the Legal Aid System: Final Report and Recommendations, Wellington.