Courts (Remote Participation) Bill

Courts (Remote Participation) Bill Government Bill Explanatory note General policy statement The purpose of this Bill is to enable greater use of audio-visual links (AVL) in New Zealand courts. Current legislation limits the ability of the courts to take advantage of new technologies, including AVL. The Courts (Remote Participation) Bill is an overarching piece of legislation that applies to every enactment that is part of New Zealand law. It sets out criteria for consideration in decisions on the use of AVL: provides a presumption in favour of the use of AVL in criminal procedural matters (ie, those where no evidence is being presented), unless the judicial officer is satisfied on his or her own motion or on the objection of any party that the criteria would not be satisfied: allows for the use of AVL in criminal substantive matters (ie, those where evidence is being presented) on the application of any party or on the judicial officer s own motion where the judicial officer considers that the criteria would be satisfied: allows for the use of AVL in civil matters where the parties consent, or (where there is disagreement between the parties) on the application of any participant or on the judicial offi- 107 1

2 Courts (Remote Participation) Bill Explanatory note cer s own motion where the judicial officer considers that the criteria can be met. The ordinary rules of court procedure (with any necessary modifications) apply to any proceeding in which a participant is appearing by AVL. This legislation is one of the first steps to be taken in the reform of criminal procedure. The Bill will ensure that as AVL facilities are installed in courts, they can be used to their full potential. Future legislative and operational reforms will modernise and simplify criminal procedure to improve timeframes and promote efficiency in the courts. Clause by clause analysis Clause 1 is the Title clause. Clause 2 is the commencement clause and provides that the Bill comes into force on the day after the date on which it receives the Royal assent. Part 1 Preliminary provisions Clause 3 is the interpretation clause. Clause 4 states that the Act binds the Crown. Part 2 Use of audio-visual links in proceedings Clause 5 sets out the general criteria a judicial officer or Registrar must consider when determining whether or not to allow the use of AVL for the appearance of a participant (as defined in clause 3) in a proceeding. Clause 6 sets out criteria, in addition to the criteria in clause 5, that a judicial officer or Registrar must consider in criminal matters. Clause 7 states when AVL may be used in civil proceedings for the appearance of a participant. In brief, this is with the consent of all parties, or without their consent, if the judicial officer allows the use. Clause 8 sets out the situations in which AVL may be used for the appearance of a participant in a criminal procedural matter. In brief,

Explanatory note Courts (Remote Participation) Bill 3 a judicial officer or Registrar may require any participant to appear by the use of AVL, unless a judicial officer determines, in accordance with the criteria in clauses 5 and 6, not to allow that use. Clause 9 states that, in general, AVL must not be used for the appearance of a participant in a criminal substantive matter unless its use is allowed by a judicial officer. Clause 10 provides for variation or revocation of a determination to allow the use of AVL. Clause 11 provides that the Judge in a proceeding may direct a jury not to draw an adverse inference because of the use of AVL. Clause 12 sets out how the place of hearing is determined. Clause 13 provides that participation by the use of AVL is equivalent to appearance at the hearing. Clause 14 sets out the regime for documents and exhibits when a person appears at a proceeding by the use of AVL. Clause 15 provides for the relationship between the Bill and other enactments. Generally, unless expressly provided otherwise, appearance by the use of AVL fulfils the legal requirements for appearance. If another enactment or rule of court sets out its own regime for the use of AVL, this Bill must be read subject to that other enactment or rule of court. Clause 16 makes it clear that the usual powers of a judicial officer continue to exist in relation to proceedings in which AVL is used. Clause 17 is the regulation-making power for the Bill. Clause 18 amends the Evidence Act 2006 to clarify the relationship between its sections 103 to 106 and the provisions of this Bill. Regulatory impact statement Executive summary AVL is technology that uses audio-visual conferencing to allow a person to participate remotely in a court proceeding. Current legislation allows AVL to be used for only a small number of matters. It is proposed that new legislation be developed to authorise greater use of audio-visual links (AVL) in court proceedings.

4 Courts (Remote Participation) Bill Explanatory note Adequacy statement The Ministry of Justice has reviewed this regulatory impact statement and considers that it fulfils the adequacy criteria. Status quo and problem Current legislation allows AVL to be used for only a small number of matters, primarily for witness appearances, applications for leave to appeal to the Supreme Court and Court of Appeal, Associate Judge civil list proceedings in the High Court, and to facilitate the attendance of remand prisoners at hearings in the Court of Appeal. Other legislation, including section 25(e) of the New Zealand Bill of Rights Act 1990 (NZBORA), requires defendants or witnesses to be brought before a court or to be present in court. 1 Courts have previously interpreted the word present as requiring physical presence in court. 2 Analysis has identified some criminal and civil proceedings where no legislative change is required. However, with respect to the majority of criminal proceedings, legislative change is required to achieve consistency with NZBORA. Similarly, with regard to civil proceedings, legislative change is required to facilitate the use of AVL in the majority of proceedings. Costs of current arrangements Having all court participants physically present involves financial and other costs. These include costs to witnesses where they are required to appear in a court outside their area, resulting in financial and emotional stress, especially when a hearing is unexpectedly delayed: the costs of transporting prisoners, housing them at court, and providing security; the average unit cost to transport and escort a prisoner is expected to increase: expected growth in prisoners on remand, creating a flow-on in demand for court appearances and associated prisoner transports: 1 Courts have previously interpreted the word present as requiring physical presence in court (Connelly v R (1998) 15 CRNZ 662). 2 Connelly v R (1998) 15 CRNZ 662.

Explanatory note Courts (Remote Participation) Bill 5 pressure on defence counsel arising from increased numbers of people entering the system, which has the potential to have an impact on consultation and preparation time. Objectives The primary objective of this proposal is to enable the widespread use of AVL in courts and justice facilities, as facilities are installed and participants become comfortable with the technology. Alternative options Non-legislative options (such as guidelines) have not been considered, as guidelines cannot override or adequately clarify the legal status of AVL in all proceedings. Guidance on the use of AVL has already been promulgated, 3 and it is appropriate that guidance such as this clarifies operational procedures for the use of AVL. The preferred legislative approach is outlined below. Specify when AVL can (and cannot) be used This option would involve specifying the circumstances in which participants could appear via AVL. One approach would be to focus primarily on the type of participant (defendant, witness, Judge, counsel, jury) and specify when that participant could appear by AVL. New Zealand legislation already does this to some extent. 4 Another approach would be to list the particular proceedings or types of proceedings in which participants could appear by AVL and/or the proceedings for which AVL generally should not be used. This option is not preferred because distinctions between participants or types of proceedings are likely to be relatively arbitrary. Such an approach is also restrictive because it is based on the limits of current technology; it does not allow for technological advances that may make AVL acceptable for use in a wider range of proceedings in future. Specifying the particular types of proceedings in statute may be due to a desire to introduce slowly such a potentially significant change in court proceedings. This has been the approach taken in New South 3 Ministry of Justice, Guide to Court Use of Audio Visual Links (AVL), 2009. 4 The Evidence Act specifies when witnesses may give their evidence via AVL; the Judicature Act 1908 and High Court Rules specify in what circumstances Judges and Associate Judges may appear by AVL in a proceeding.

6 Courts (Remote Participation) Bill Explanatory note Wales, which has amended its legislation over time to gradually expand the use of AVL. General presumption AVL can be used This is the approach taken in Tasmania s Evidence (Audio and Audio Visual Links) Act 1999. The Act provides that a court may direct, on application or on its own motion, that any person, including a defendant, may appear before or give evidence to a court by audio-visual or audio link. This legislation is supported by guidelines, which stress that An over-riding factor is that the use of video-conferencing in any particular case must be consistent with furthering the interests of justice. A variation of this option is to have a modified general presumption that is, a presumption generally for AVL to be used but with a threshold for greater consideration before AVL is used in some situations. The modified presumption approach is the preferred option discussed below. A general presumption is not preferred as it does not provide a sufficient threshold for greater consideration of when AVL would be appropriate. Preferred option Modified presumption for the use of AVL The legislation would stipulate that AVL can be used in any proceedings, as the use of AVL will be more straightforward in some types of proceedings than in others. Therefore the legislation will create a lower hurdle for some types of matters as follows: for criminal procedural matters where no evidence is being called (such as relevant list appearances, bail, and some callovers), the legislation will provide a presumption in favour of the use of AVL, because the use of AVL is well accepted for these types of hearings and its use raises fewer concerns than for criminal substantive hearings. Criminal procedural matters represent the bulk of short, high-volume appearances and offer the opportunity for the greatest gains from the use of AVL. The legislation should therefore encourage the use of AVL for this category of hearing. Where there is an objection to the use of AVL in a procedural matter, Judges would be guided by the legislative criteria in deciding whether the presumption in favour of the AVL should be displaced:

Explanatory note Courts (Remote Participation) Bill 7 for criminal substantive matters where evidence is being called (such as defended hearings and jury trials), there would be no presumption in favour of the use of AVL. Instead, any party would be able to apply to the court to use AVL, and the court would determine the application based on the statutory criteria: civil matters do not present the same human rights concerns as criminal matters. The test for using AVL can correspondingly be less rigorous. Accordingly, the legislation would provide that AVL can be used in civil proceedings whenever the parties consent. The legislation would also allow a court to order the use of AVL in civil proceedings where the parties do not consent, provided that the use of AVL accords with the principles of natural justice. This would ensure that where there is a power imbalance between civil parties, one party cannot not unreasonably withhold consent to use AVL (eg, to put the other side to unnecessary expense). 5 Decisions on the use of AVL would be guided by criteria outlined in legislation. The critical question for the court would be whether the use of AVL in the particular circumstances of the case is able to ensure the protection of the rights of a defendant to be present at trial and to present a defence. Legislative approaches Australian jurisdictions indicate 2 possible drafting approaches: amendments to existing legislation or stand-alone legislation. Preferred option: overarching statute to apply across New Zealand legislation One overarching statute would set out the presumption above, with considerations to guide the appropriate use of AVL, which would apply to every enactment that is part of New Zealand law. Such an approach provides a clear legal basis for the use of AVL. It also provides a foundation for the required cultural change, moving away from the historic notion that physical presence is necessary for ef- 5 In civil matters, costs are borne by the parties to the dispute.

8 Courts (Remote Participation) Bill Explanatory note fective participation, to acceptance that AVL can achieve this just as well (and in some cases better). Alternative option: amend existing legislation The range of statutes that use varying terminology concerning participants in proceedings could be amended to clarify whether participants could appear by AVL (or other appropriate technology) and in what circumstances. This would involve a range of legislation, requiring review of and amendment to a large number of statutes, regulations, and rules. Cost-benefit analysis There are no specific costs associated with this legislation. However, investment in AVL facilities will avoid future costs for government. Having legislation in place to enable greater use of AVL means that the cost savings and benefits of any future investment in AVL will be realised as further AVL facilities are installed. Benefits to which a specific monetary value cannot be assigned are also significant, and include reductions in costs for participants in the court process: improved efficiency for justice sector agencies: improved safety and security: increased access to justice: improved quality of evidence. Impact on other legislation This legislation is intended to be an overarching piece of enabling legislation that will apply to every enactment that is part of New Zealand law. Requirements in other enactments that defendants be brought before or appear before a court will be satisfied if they appear via AVL in accordance with this legislation. The Evidence Act 2006 (sections 173 to 180) and the High Court Rules have provisions on the use of video links between Australia and New Zealand. It is not intended that new legislation alter or cut across what is already a comprehensive regime governing the use of AVL in trans-tasman proceedings.

Explanatory note Courts (Remote Participation) Bill 9 Section 26IB of the Judicature Act 1908 outlines the circumstances in which AVL may be used for Judge and Associate Judge work. This section is likely to be repealed. It is unlikely that this new legislation will significantly amend provisions in other legislation (eg, the High Court Rules, Disputes Tribunals Act 1988, Corrections Act 2004) that specifically deal with AVL or enable AVL to be used in specific circumstances, though this will be determined through the drafting process. Implementation and review A new Bill enabling the use of AVL will be drafted and ready for introduction in November 2009 (subject to the Government s legislative priorities). AVL usage will be monitored over the 4 years after implementation. Formal evaluation of the legislation is not planned at this stage. Consultation In November 2008, the Ministry of Justice released a discussion document entitled Audio Links and Audio Visual Links in Proceedings for targeted consultation. The Department of Corrections has signalled its support for measures that would reduce prisoner transport requirements. Representatives of the judiciary have also expressed support for the proposals but emphasised that they see AVL being used predominantly in the procedural elements of courtroom proceedings and less so for the substantive components of proceedings (ie, where evidence is being physically presented). The Ministry of Justice has consulted on this paper with The Treasury, Department of Corrections, New Zealand Police, Crown Law, Parliamentary Counsel Office, Legal Services Agency, Te Puni Kōkiri, Ministry of Foreign Affairs and Trade, Ministry of Social Development, and Ministry of Women s Affairs. The Department of Prime Minister and Cabinet has been kept informed.

Hon Simon Power Courts (Remote Participation) Bill Government Bill Contents Page 1 Title 2 2 Commencement 2 Part 1 Preliminary provisions 3 Interpretation 2 4 Act binds the Crown 4 Part 2 Use of audio-visual links in proceedings 5 General criteria for allowing use of audio-visual links 4 6 Additional criteria for allowing use of audio-visual links 4 in criminal proceedings 7 Use of audio-visual links in civil proceedings 5 8 Use of audio-visual links in criminal procedural matters 5 9 Use of audio-visual links in criminal substantive matters 5 10 Judicial officer or Registrar may vary or revoke 6 determination 11 Direction to jury 6 12 Determining place of hearing 6 13 Attendance at hearing 6 14 Documents and other exhibits when person appears at 7 proceeding by use of AVL 15 Relationship with other enactments 7 16 AVL does not affect exercise of judicial officer s powers 7 17 Regulations 7 107 1 1

cl 1 Courts (Remote Participation) Bill 18 Amendment to Evidence Act 2006 8 102A Relationship of Courts (Remote Participation) Act 2009 to sections 103 to 106 8 The Parliament of New Zealand enacts as follows: 1 Title This Act is the Courts (Remote Participation) Act 2009. 2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent. 5 Part 1 Preliminary provisions 3 Interpretation In this Act, unless the context otherwise requires, audio-visual link, or AVL, in relation to a participant s ap- 10 pearance at any proceeding, means facilities that enable both audio and visual communication between participants, when some or all of them are not physically present at the place of hearing for all or part of the proceeding civil proceedings means any proceedings in a court, other than 15 criminal proceedings Community Magistrate has the same meaning as in section 2(1) of the District Courts Act 1947 court means a New Zealand court Court of Appeal means the Court of Appeal of New Zealand 20 constituted under Part 2 of the Judicature Act 1908 criminal procedural matter means any matter, in a criminal proceeding, in respect of which no evidence is to be called criminal substantive matter means any matter, in a criminal proceeding, in respect of which evidence is to be called 25 District Court includes (a) a Family Court and a Youth Court; and 2

Courts (Remote Participation) Bill Part 1 cl 3 (b) a District Court sitting in its admiralty jurisdiction High Court includes the High Court sitting in its admiralty jurisdiction, or sitting as a permanent Prize Court under the jurisdiction conferred by section 8 of the Admiralty Act 1973 Judge means a Judge of any court 5 judicial officer means a Judge, a Community Magistrate, or a Justice Justice has the same meaning as in section 2 of the Justices of the Peace Act 1957 Minister means the Minister of the Crown who, under the au- 10 thority of a warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act New Zealand court means (a) the Supreme Court, the Court of Appeal, the High 15 Court, or a District Court; or (b) any of the following specialist courts: the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, the Court Martial Appeal Court constituted by the Court Martial Appeals Act 1953, the 20 Employment Court, the Environment Court, the Maori Appellate Court, and the Maori Land Court participant, in relation to a proceeding, means a person who is, in that proceeding, any of the following: (a) a party: 25 (b) the defendant: (c) counsel: (d) a witness: (e) a member of the jury: (f) a judicial officer who is presiding over the proceedings: 30 (g) any other person directly involved in the proceeding whom the judicial officer considers appropriate proceeding means any proceeding in a New Zealand court Registrar includes a Deputy Registrar Supreme Court has the same meaning as in section 4 of the 35 Supreme Court Act 2003 witness means a person who gives evidence and is able to be cross-examined in a proceeding. 3

Part 1 cl 4 Courts (Remote Participation) Bill 4 Act binds the Crown This Act binds the Crown. Part 2 Use of audio-visual links in proceedings 5 General criteria for allowing use of audio-visual links 5 A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding: (a) the nature of the proceeding: 10 (b) the availability and quality of the technology that is to be used: (c) the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including 15 (i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and (ii) the level of contact with other participants: (d) any other relevant matters. 20 6 Additional criteria for allowing use of audio-visual links in criminal proceedings A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the appearance of any participant 25 in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular, (a) the ability of the defendant 30 (i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult and instruct counsel privately; and (iv) to access relevant evidence; and 35 (v) to examine the witnesses for the prosecution; and 4

Courts (Remote Participation) Bill Part 2 cl 9 (b) (c) the level of contact the defendant has with other participants; and any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be miti- 5 gated. 7 Use of audio-visual links in civil proceedings (1) AVL may be used in any civil proceeding for the appearance of any participant if all the parties to the proceeding consent to its use. 10 (2) AVL may also be used in a civil proceeding for the appearance of a participant without the consent of all the parties if the judicial officer in the proceeding determines, in accordance with the criteria in section 5, to allow its use for the appearance of that participant in the proceeding. 15 (3) A determination under subsection (2) may be made by the judicial officer on his or her own motion or on the application of any participant in the proceeding. 8 Use of audio-visual links in criminal procedural matters (1) A judicial officer or Registrar may require any participant in a 20 criminal procedural matter to use AVL for his or her appearance. (2) A judicial officer may determine not to allow the use of AVL for the appearance of a participant in a criminal procedural matter, despite a previous requirement under subsection (1) 25 made by a Registrar or a judicial officer. (3) A determination under subsection (1) or (2) may be made on the objection of any party to the proceeding or on the motion of the judicial officer. (4) Any determination made under this section must be made in 30 accordance with the criteria in sections 5 and 6. 9 Use of audio-visual links in criminal substantive matters (1) AVL must not be used in any criminal substantive matter for the appearance of a participant unless the judicial officer in the 5

Part 2 cl 10 Courts (Remote Participation) Bill proceeding determines to allow its use for the appearance of that participant in the proceeding (a) in accordance with the criteria in sections 5 and 6; and (b) taking into account whether the parties to the proceed- 5 ing consent to the use. (2) A determination under subsection (1) may be made by the judicial officer on his or her own motion or on the application of a party to the proceeding. 10 Judicial officer or Registrar may vary or revoke 10 determination (1) A judicial officer may at any time vary or revoke a determination to allow the use of AVL for the appearance of a participant if the judicial officer considers that any reason for the determination, with respect to the criteria in section 5, or sec- 15 tions 5 and 6 (as the case may be), no longer applies. (2) A Registrar may at any time vary or revoke his or her determination, or the determination of another Registrar, to allow the use of AVL for the appearance of a participant if the Registrar considers that any reason for the determination, with respect 20 to the criteria in section 5, or sections 5 and 6, as the case may be, no longer applies. 11 Direction to jury In a proceeding tried with a jury, the Judge may direct the jury that it must not draw any adverse inference against any party 25 to the proceeding because of the use of AVL in the proceeding. 12 Determining place of hearing The place of hearing of any proceeding in which 1 or more of the participants appears by the use of AVL is the same as if none of the participants in that proceeding were to appear by 30 the use of AVL. 13 Attendance at hearing (1) A participant who appears at a proceeding, or part of a proceeding, by the use of AVL under this Act is regarded as being 6

Courts (Remote Participation) Bill Part 2 cl 17 present in the place of hearing at the proceeding, or that part of the proceeding, for the duration of that use. (2) Subsection (1) applies whether or not the participant is in New Zealand. 14 Documents and other exhibits when person appears at 5 proceeding by use of AVL A document may be put to or by a person appearing at a proceeding by the use of AVL, or another exhibit may be shown to or by that person, (a) by transmitting the document or other exhibit electron- 10 ically; or (b) by use of AVL; or (c) by any other manner that the judicial officer thinks fit. 15 Relationship with other enactments (1) The appearance by a participant at a proceeding by the use 15 of AVL to the extent that is authorised by this Act fulfils the corresponding legal requirements in relation to his or her appearance in person at the proceeding under every enactment and rule of court, unless that other enactment or rule of court expressly provides otherwise. 20 (2) If an enactment or rule of court provides for the appearance by a participant at a proceeding by the use of AVL or video link in a court proceeding, then this Act must be read subject to that enactment or rule of court. 16 AVL does not affect exercise of judicial officer s powers 25 To avoid doubt, a judicial officer presiding in a proceeding in which AVL is used has all the powers that he or she would have if the participant appeared in person. 17 Regulations (1) The Governor-General may, on the recommendation of the 30 Minister, by Order in Council, make regulations (a) prescribing the procedure to be followed, the type of equipment to be used, and the arrangements to be made where a person is to appear by the use of AVL: 7

Part 2 cl 18 Courts (Remote Participation) Bill (b) prescribing any method or technology of AVL as one which is suitable for use as AVL under this Act: (c) prescribing forms for the purposes of this Act: (d) providing for any other matters contemplated by this Act, necessary for its administration, or necessary for 5 giving it full effect. (2) Before making a recommendation under subsection (1)(b), the Minister (a) must be satisfied that the method or technology is appropriate for use in proceedings; and 10 (b) may consult with other Ministers as he or she considers appropriate. 18 Amendment to Evidence Act 2006 (1) This section amends the Evidence Act 2006. (2) The following section is inserted after section 102: 15 102A Relationship of Courts (Remote Participation) Act 2009 to sections 103 to 106 Evidence given by audio-visual link under the provisions of the Courts (Remote Participation) Act 2009 is not, for the purposes of sections 103 to 106, evidence given in an alternative 20 way. 12 Wellington, New Zealand: Published under the authority of the New Zealand Government 2009 8