Is it time for a regulatory-specific Court in New Zealand?

Compliance, Monitoring and Enforcement (CME) is an essential function of local government.  Councils all over Aotearoa do their best, with limited resources, to bring to account those who adversely effect the environment, build shoddy homes, own dangerous dogs, as well as a raft of other offences.

But while regulatory prosecutions are seemingly on the rise, so is the time it is taking to conclude them.  Justice delayed is justice denied and everyone involved in the system is ultimately affected.

The District Court is where most people will first experience our justice system.  It is ‘step one’ on the criminal justice ladder so to speak.

District Courts are incredibly busy places.  On any given day, the Court will be dealing with everything from drink driving and family violence, to jury trials and money claims up to a not insignificant $300,000.

The District Court’s jurisdiction is overwhelmingly broad, and the staff and Judges do a phenomenal job at keeping the wheels turning, despite significant pressures.

The impact of Covid-19 (as well as the recent flood events for Auckland) has further squeezed the Court’s precious resources and it is completely understandable that cases involving people in custody, or where serious violence has occurred, will take precedence over a Health Act prosecution for instance.

Acting for councils all over New Zealand provides a pretty good snapshot of how council cases flow through our national system.  Again, everyone is doing the best they can but it is impossible to ignore the increasing delays.

Dog Control cases for example are really important.  Parliament expects councils, via CME, to keep communities safe.  However these charges are often category 1 and fineable only.  Despite the relatively low-level of the offending, these prosecutions are highly charged for everyone involved (destruction of the dog being a key reason for that).  Unfortunately, these cases are often taking more than a year to reach a conclusion.

Victims, defendants and witnesses can’t understand why things are taking as long as they are and unfortunately sometimes take their frustrations out on the Council, rather than the system itself.

Rice Speir has acted for councils in cases that have seen several Judge-Alone-Trial (JAT) dates come and go without much explanation.  In our experience, the Council and its witnesses, and defendants, are ready to proceed, but there simply isn’t enough Court or judicial resource available to hear the cases.

Questions can begin to arise about the public interest in continuing a category 1 prosecution that has been through multiple JAT dates.  It isn’t difficult to sympathise with a victim or a witness who doesn’t want to take time off work to come to Court again and again.

It isn’t just the larger centres that are facing this issue.  The regions are just as impacted in our experience.  Many smaller District Courts don’t have judges sitting every day and when a Judge is in town, her or his list often gets jammed with so many trials that there is no realistic prospect of hearing half of them.

Councils of course aren’t the only regulator facing this dilemma.  There are a variety of regulatory prosecutions grinding their way through the District Court at any one time, from Worksafe to IRD, MPI to MSD, all of which are putting pressure on an already burdened system.

Some councils have come up with innovative strategies for dealing with lower-level offending, including formal warnings and even a diversion scheme (more on that fantastic development in a future article hopefully).  However, some cases need to be prosecuted and now some councils are asking what’s the point?

Is a regulatory judge(s), physically sitting in the Environment Court, the solution?

The solution might be to separate CME or regulatory cases from the day-to-day criminal ones.  District Court Judges, sitting in the Environment Court, are already hearing Building Act cases for instance, so (resource permitting) why couldn’t this concept be extended?

Wouldn’t it be less of a stretch for a Judge to go between two regulatory cases, than to expect him or her to jump from a Male Assaults Female trial in the morning to a Building Act one in the afternoon?

The same goes for defence lawyers.  Duty solicitors and category 1 defence lawyers often don’t have the depth of knowledge needed to advise clients on regulatory charges, leading to unnecessary adjournments and arguments.

In our view a Judge, or Judges, with an interest in regulatory offending (i.e. any charge that is brought by an agency that is not the New Zealand Police), could do justice to these types of offences.  In a similar vein, we already have various Tribunals determining disciplinary hearings in specialist areas.

The regulatory Judge(s) could sit in Auckland, Hamilton, Wellington or Christchurch (or actually anywhere with an internet connection) and case manage all regulatory charges remotely.  They could be physically situated alongside the Environment Court Judges, space permitting.

Early procedural appearances could be dealt with via videoconference to reduce the need for judges, lawyers, and defendants to travel.  In fact, most appearances, perhaps except for sentencing and trials, could be handled remotely to speed things along.

What underpins all regulatory offences is criminal procedure.  To use an analogy, regulators are just playing different games on the same field.

While environmental offending couldn’t be more different than dog control as an example, both prosecutions start with the Solicitor-General’s Prosecution Guidelines and a charging document.  They are both subject to the Criminal Procedure Act, the rules of evidence and the Sentencing Act.

Giving regulatory cases a dedicated space would lead to efficiencies and ultimately better access to justice, which is a good thing for CME practitioners and the communities they serve.  Judges sitting in criminal lists would probably be happy to see regulatory cases find another home too.  It is a win-win.

Everyone involved in the Court system is doing their best and resourcing is always going to be an issue.  But it’s probably time to look at the resourcing issue differently.

Might a dedicated Judge or Judges be the answer?  Tell us what you think.

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