Review of Courts (Remote Participation) Act 2010
Preliminary question: Where should detailed rules be set?(Q19-21)
Click on the drop downs to read about the current law, the problem or opportunity and option(s) for change.
This section asks a key policy and design question: where should detailed rules and expectations about remote participation use be set? This includes consideration of whether rules should remain in primary legislation (an Act) or whether they could be set in Court Rules or Judicial Protocols.
Current law
The Act sets out when remote participation may, must, or must not be used. For some matters and participants, there is an initial presumption that audio-visual links (AVL) will or will not be used, and for others it is more open-ended.
Judicial officers or Registrars make decisions in individual cases but must apply a general set of statutory criteria to all decisions. A second set of additional criteria applies to criminal proceedings and a third set to audio links (AL) in civil proceedings.
Problem or opportunity
The Ministry has heard some concerns that the current Act is unnecessarily prescriptive and complicated. Setting presumptions and criteria for different matters and participants can create unnecessary complexity and make the current Act difficult to apply.
We are aware that a range of factors may require a matter to take place remotely or in-person in the courtroom. It may be difficult to provide for all situations in primary legislation.
There is an opportunity to consider where the detailed rules should be set. Options include retaining them in an Act or setting them in Court Rules or in Judicial Protocols.
Options we are considering
We want to test our understanding of the impacts, benefits, and risks associated with progressing each of the options below. All models would need to preserve rights under the New Zealand Bill of Rights Act 1990, open justice principles, and core constitutional principles of judicial independence and the separation of powers.
Option 1: Retain detailed expectations and requirements in primary legislation (an Act)
This option is the same as the current model. However, adjustments could be made to resolve known issues and ambiguities, and to strengthen expectations for use of remote participation. Retaining detailed expectations in an Act and making targeted changes to the current rules could modernise the regime, provide increased clarity and certainty for users, and support increased use.
This option would retain judicial discretion. However, prescribing when remote participation should be used in an Act would provide less flexibility. This could constrain the judiciary’s ability to make decisions in the interests of justice. Amending primary legislation is time- and resource-intensive so this option may be less “future-proofed” than the other options, meaning it is less adaptable over time to changes in practice or technology.
Option 2: Place detailed rules and expectations in Court Rules rather than an Act
Under this option, an Act would provide a legislative basis for remote participation use, and set the policy direction solely through a purpose statement and decision-making criteria. It would not set out detailed expectations about remote participation use .
Instead, an Act could include an empowering provision signalling an intention that Court Rules be developed. Court Rules are formal and binding rules about the practice and procedure of the courts. Most Court Rules are developed through a formal Rules Committee process. The Rules Committee membership includes members of the judiciary, members of the executive branch of government, and representatives from the legal profession. Court Rules are therefore developed jointly by the judiciary and the executive.
This option would recognise the judiciary’s constitutional responsibilities in relation to conducting the business of the courts. The judiciary would play a greater role in determining the appropriate circumstances, or types of court matters that are suitable for remote participation use.
Similar to primary legislation, setting detail in Court Rules provides clarity for users and supports consistency across courts. Court Rules are generally easier to amend than primary legislation, but not as easy as Judicial Protocols.
Option 3: Leave it to the Judiciary to develop and set detailed guidance and expectations through Judicial Protocols, if they wish
Like Option 2, an Act would provide a legislative basis for remote participation use and set the policy direction solely through a purpose statement and decision-making criteria. The judiciary may establish protocols about the use of remote participation.
Judicial Protocols are not legislation. They are issued by Heads of Bench in accordance with their inherent powers. The Government has no formal role in the development of protocols, but the judiciary may consult on drafts.
Like the other options, protocols would assist with consistent decision-making across the courts, and provide clarity to court users. Protocols can be kept under review by the judiciary and are quicker to amend than primary legislation or Court Rules. For example, they were used extensively during the COVID-19 pandemic to vary the usual operation of the courts.