Dealing With The Gap: Part five of five on our ‘justice gap’ crisis

In 2013, Julie Macfarlane, a Canadian law professor, conducted a study into self-represented litigants. Interviewing some 280 self-represented litigants, she was struck by “how traumatised people are by the experiences they’re having, how many lives are getting wrecked, how much anger and frustration is out there.”

There’s no doubt that the symptoms of the ‘justice gap’ in New Zealand are incredibly damaging. But the gap is only getting bigger and harder to deal with.

For example, recent changes to restorative justice processes have meant that courts must adjourn all cases with an identifiable victim to assess whether restorative justice is appropriate in the circumstances. The intention is admirable – there’s great merit in extending access to restorative justice to a greater range of cases – but the process as it currently exists has been painfully under-resourced since day one, causing incredible backlogs in courts across the country.

The Minister of Justice contends that our justice system is equitable and efficient, but her statements to the media and to the legal profession are far from the reality. These are real problems and they compromise the rule of law in our country. The basic tenet of the rule of law is that the law applies equally to all. If that’s to mean anything at all, our justice system needs to be accessible to anyone.

The law can’t apply equally to all if massive barriers are being erected that prevent beneficiaries, low-income earners, and even middle-income earners from accessing it in a meaningful sense. This isn’t scaremongering. This is the plain truth of the matter.

Some have suggested we deal with this growing gap by providing self-represented litigants with information packs. Others have suggested simplifying rules of procedure to make self-representation more accessible, though Justice Helen Winkelmann notes that “It is difficult to see just how far simplification of the essential processes, such as pleading and discovery, can be taken without compromising these objectives.”

Though current pro bono options are limited, there have also been attempts to improve those initiatives across the board; Frances Joychild QC, for example, has advocated for the use of retired legal professionals or students to cover pro bono work.

But these are all stopgaps, plugs in increasingly large holes. As long as our legal system is significantly under-resourced; as long as the government keeps pursuing counterintuitive policy decisions and botching their execution; as long as we allow the creep of the philosophy that the civil, criminal and family courts are mere shop-front ‘user pays’ systems; as long as we do nothing, justice will become harder for so many people to access.

And maybe they won’t even try and self-represent. Maybe they just won’t use the courts. Maybe they just won’t get justice.

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