Review of Courts (Remote Participation) Act 2010

The Act requires decision-makers to consider statutory criteria when determining whether remote participation use is appropriate and in the interests of justice.

Judicial officers and Registrars must consider a general set of criteria in all cases (section 5), additional criteria in criminal cases (section 6), and a third set of criteria relating to AL in civil proceedings (section 7A).

We have identified an opportunity to streamline the current criteria and remove duplication, while ensuring decisions continue to be determined by what is in the interests of justice. We recognise that the current decision-making process is complex as it requires consideration of multiple sets of criteria. We are interested in views on whether this is causing problems in practice and whether this aligns with the operational reality of decision-making in courts.

Option 1: Replace multiple lists of criteria with a single requirement that decisions be determined by 'the interests of justice'.

This option is simpler and less prescriptive than the current decision-making framework. It would not list or prioritise any factors, giving individual decision-makers considerable discretion. “The interests of justice” is not defined but is a well-known and established legal concept.

This option would not expressly refer to relevant considerations or participant rights. However, decision-makers would still need to consider all relevant factors and make decisions consistent with rights under the New Zealand Bill of Rights Act 1990 and an Act’s purpose.

Option 2: Streamline and update the criteria that decision-makers must consider.

This approach would streamline the existing criteria from three sets to one. 

It would also update and add new criteria. The proposed new criteria recognise that increased use of remote participation will have implications for court participants, open justice, tikanga Māori and court resourcing.

Possible criteria include:

• The nature of the proceeding (this reflects the current criteria).
• The availability and quality of technology to be used (this reflects the current criteria).
• The potential impact of the use of remote participation technology on the effective maintenance of rights of parties to the proceeding, including the right of a defendant to a fair trial (this condenses current section 5(c) and section 6 into a single criterion).
• The ability to participate effectively in the proceeding, including enabling participants to be seen and/or heard and understood (this recognises that remote participation may support effective participation for some, but not all court participants).
• The views of the participant (this enhances the ‘participant’s voice’ in the decision-making process and supports informed decisions about remote participation use. This may enable victims to have a voice when they are participants in proceedings).
• The extent to which remote participation may affect tikanga Māori in court proceedings (this recognises that in some circumstances, it may be appropriate to enable or prohibit remote participation to better support tikanga Māori in court proceedings).
• The potential time- and cost-saving efficiencies that may result from the participant appearing remotely (this enables convenience and efficiency factors to form part of decisions).
• Complies with open justice (this recognises the need to consider open justice implications when making decisions).
• Whether the necessary court resources are available to facilitate remote participation (this acknowledges that facilitating remote participation and observation requires sufficient court staff and resourcing).
• Any other matter (this reflects current criteria).

This list is more streamlined than the current Act, but provides more legislative guidance about relevant considerations than Option 1.