OIA 86312 N Coyle docs for release tranche 3.pdf

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Excerpt from ‘Disputes Tribunals: Increasing the maximum claim level’
Of ice of the Minister of Justice
Cabinet Social Policy Commit ee
ACT
Proposal
1. I seek agreement to:
1.1. [Out of scope]
1.2. strengthen safeguards and increase transparency to maintain public confidence in
the Disputes Tribunals;
1.3. [Out of scope]
[Out of scope – paragraph 2- first sentence of paragraph 6]
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6. Therefore I also propose that:
6.1. [Out of scope]
6.2. hearings should be open to the public unless the referee is assisting the parties to
reach a mediated agreement or there are other circumstances that the referee
considers warrant privacy or reporting restrictions;
6.3. [Out of scope]
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6.4. a legislative presumption be introduced that referee decisions be published online
unless the referee considers there is good reason not to do so;
[Out of scope – paragraphs 6.5-26]
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Public hearings to increase transparency
27. I propose to make Disputes Tribunal hearings open to the public. They are currently
heard in private. Judicial proceedings must generally be conducted in open court (the
public and media must be free to attend). A court or tribunal cannot sit in private except
in a few closely defined circumstances (e.g. to protect certain vulnerable persons).
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28. However, I also wish to retain the unique features of the Disputes Tribunals as an
inexpensive, simple and fast dispute resolution mechanism. Accordingly, where the
parties resolve their dispute through mediation, that process should remain private. The
adjudication process should also remain private if there are other circumstances that the
referee considers warrant privacy and referees wil also be able to impose reporting
restrictions on the media. This balanced approach wil ensure free, open and frank
discussions can continue to take place in pursuit of early resolution of disputes. But that
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where mediation is unsuccessful, the hearing wil  be open to the public and the media
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consistent with the principle of open justice.
29. I propose:
29.1  [Out of scope]
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29.2  to introduce a legislative presumption that referees’ decision be published online
unless the referee considers there is good reason not to do so.
30. Court and tribunal decisions are generally available to the public except in a few strictly
defined circumstances. Well-reasoned decisions are integral to the parties’ sense of a
fair hearing.
[Out of scope – paragraph 31]
32. Tribunal decisions are not routinely published at present, although the Principal Disputes
Referee has published some decisions of particular note in an anonymised form. My
proposal wil  improve transparency and maintain public confidence in the Disputes
Tribunals by making the outcomes of cases more accessible while also recognising that
some decisions may not warrant or be suitable for publication. This mirrors the approach
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adopted for the publication of District Court decisions online.
[Out of scope – paragraph 33-57]
Recommendations
58. I recommend that the Cabinet Social Policy Commit ee:
[Out of scope paragraphs 1-4]
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5. agree Disputes Tribunal hearings should be open to the public, except when the referee
is mediating an agreement between the parties, or there are other circumstances that the
referee considers warrant privacy or reporting restrictions;
[Out of scope paragraph 6] THE
7. agree to introduce a legislative presumption that referees’ decisions should be published
online unless the referee considers there is good reason not to do so;
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Excerpt from ‘FILENOTE: MEETINGS WITH ANNE DARROCH, PRINCIPAL DISPUTES
REFEREE’
23 May 2014
ACT
This note records key points from Minister Borrows’ meeting with Anne Darroch, Principal
Disputes Referee (PDR), on Tuesday 20 May. Wayne Newall and I attended for the Ministry.
Stuart Beresford and Oliver Searle were also present.
[Out of scope – paragraphs 2-6]
Policy issues associated with Cabinet decisions December 2013
a) Publication of Referees’ decisions
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PDR thought it helpful to have decisions of interest as currently published, though the
process was labour intensive.  She worried that publishing all Referees’ decisions (under the
Cabinet decision) would muddy the waters for users seeking guidance on the likely
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treatment of a prospective case. Anonymisation of some decisions would also present a
challenge.
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We suggested that compliance with the eventual publication requirement need not
preclude highlighting decisions of interest, or grouping decisions (PDR had mentioned
Consumer Guarantees Act cases).  The design of a system for how decisions would be
published was some way down the track.  There may be scope for electronic processes to
ease the publication burden.
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PDR was concerned that, knowing their decisions would be published, Referees
would want greater access to legal research assistance. There was only half a person
available for this currently.
[Comment: This may be a natural reaction to greater scrutiny.  But shouldn’t Referees be
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making good decisions for their own sake?  A good, reasoned, decision is not inherently
linked to likelihood of publication. Accountability is a key part of the trade off in the Cabinet
decisions – increased jurisdiction for greater accountability, transparency (through open
hearings; publication) and safeguards for quality (requiring Referees to have legal
qualifications).  I doubt Ministers would have much sympathy for a request for greater
research assistance. The quality of decision making can be tackled through PDR’s best
practice initiatives, and wil  hopefully be bolstered by the new qualification requirements.]
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b) Open hearings
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PDR noted that Referees did not operate a two-part process. There was not a
natural break in their work that might allow for some steps in open court and others in
private. A settlement opportunity could emerge at any time.
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[Comment: Our pre-meeting discussion of this issue was inconclusive. And we’l  need to
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work harder with the PDR. She has a clear view that mediation should always occur in
private and appears yet to accept a change to open hearings.
We said our starting point was the Cabinet decision to move to open hearings.  We were
interested in exploring how to make that decision work.  We suggested that there was no
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reason, for instance, that exploration of the issues at the start of a hearing could not be open
to the public.  It was also entirely possible to reach good settlements in open court with the
public in attendance (if indeed anyone besides the parties turned up).  The Cabinet decision
would stil  allow a Referee to close the hearing if/when it seemed to the Referee a settlement
might be reached more readily in private.]
11
She acknowledged that a move to open hearings did not necessarily mean that the
public would attend.  But in some cases the parties wil  likely bring supporters to observe.  In
cases involving prominent persons there may be public or media interest.
12
Open hearings would thus present some logistical challenges:
- Some venues had only small rooms available (so if the public was to be
accommodated that would put pressure on venues)INFORMATION
- Referees are not supported by clerks and are left to manage parties themselves –
presumably they would also be asked to manage the public during open hearings
(e.g. if seeking to close the hearing and remove the public in order to mediate a
settlement)
- Which also raised a question of security
[Comment: As discussed previously, we’l  need to anticipate larger cases or those that might
attract public or media interest and schedule these in larger rooms.  The question of support
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to Referees in the management of the observing public is a legitimate one that we’l  need to
consider. Security issues are likely already to exist.  The possible presence of “supporters”
may exacerbate the security issue and we should look into that. Some changes to the Court
Security Act are being promoted through the CATES Bil , including allowing Court Security
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Of icers to use their powers at tribunal hearings held in buildings (usually courthouses)
where they are present.]
[Out of scope – paragraphs 13-16]
Postscript
17
Outside the meeting and upon parting, PDR commented to us that “you can’t have it
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all”. The publication decision wil  mean Referees want more legal research support.
[Out of scope – rest of paragraph 17]
18
We replied that Ministers may indeed want it al . And that we – the Ministry and the
PDR – wil  need to work together to find practical ways forward.
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Next Steps
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19
Policy needs to issue drafting instructions to Parliamentary Counsel so that a bil  can
be developed.  It would be good to meet with PDR again in the near future.  Her letter of 17
April remains for reply.  We could set out our ideas for taking Cabinet’s decisions forward in
a response and invite further discussion at a meeting time scheduled in the letter.
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Warren Fraser
Policy Manager, Courts and Tribunals Policy
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Excerpt from ‘Agenda: Meeting with Principal Disputes Referee, Anne Darroch, and
Referee Dr Cynthia Hawes’
12 June 2014
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[Out of scope – paragraphs 1-2a]
b) Open Hearings
- How can we best manage the occasional need for larger hearing rooms?
- What support might referees need to manage the small number of hearings that do
attract a number of supporters, or public attendance, or media profile?
Open hearings in the Tenancy Tribunal have not resulted in vastly greater public attendance
at hearings.
However, for DT cases with media profile, or where parties wish to bring supporters, we
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have to consider practical issues like the size and availability of hearing rooms that can
accommodate public attendance.
Media requests or inquiries wil  help with advance notice.  On the day, once a room is full,
it’s full…just like any other public gallery at court.
The scheduling process can help.  There may be a small scheduling delay in finding an
appropriate room where we know more space is required.  (A bit like multi-party hearings
now?)
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Managing public attendance might require guidance available at hearing – i.e. attendance
at an open hearing is to witness and observe; not to participate.
Security?  Wil  likely be managed on a risk assessment, as required basis.
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PDR suggested that a clerk or court taker could help a referee to manage “profile” cases.
Budget constraints wil  make that difficult to accommodate.
• Publication of Referees' decisions
- What issues wil  we need to consider in devising a system for publication of referees’
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decisions?
- Does publication make a case for greater availability of legal research assistance to
referees?
How does the current publication of decisions of interest work?  Who publishes?  Who
anonymises?
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Publishing a volume of cases – 16,000-20,000 – wil  be difficult. The development of
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electronic ways of working could help.
When should decisions be anonymised?
What good reasons might exist for not publishing some decisions?
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Publication of decisions opens referees up to greater accountability.  But there is nothing
inherent in publishing that should influence the quality of a referee’s decision.  Requiring
legal qualifications is designed to assist quality decision making.
[The fundamental underpinning of the Open Justice principle is that judicial proceedings
must be conducted in open court (the public and media must be free to attend) and a court
cannot sit in private, except for in a few closely defined circumstances (for example, to
protect certain persons or if there are nationals security concerns).  Likewise, the court
record should be available for public viewing; again, except for in a few strictly defined
circumstances.
The principle of open justice is important to:
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• deter inappropriate behaviour on the part of courts (and to encourage them to act fairly
and independently);
• maintain public confidence in the administration of justice (reducing the risk that
members of the public wil  be motivated to take justice into their own hands); and
• promote the accountability of the parties and deter inappropriate behaviour by
participants in the process.]
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1982
Excerpt from ‘Meeting regarding proposed Disputes Tribunals reforms’
Held on Thursday 12 June 2014 at the Justice Centre, Room 3.14
Attendees
ACT
- Anne Darroch (Principal Disputes Referee)
- Cynthia Hawes (Referee and Associate Professor of Law at Canterbury University)
- Sarah Turner (General Manager, Courts and Justice Services Policy)
- Warren Fraser (Manager, Courts and Tribunals Policy
- Wayne Newall (Acting National Manager, Specialist Courts, Special Jurisdictions)
- Emily Owen (Manager, Operations Support, Special Jurisdictions)
- Angela Holmes (Senior Policy Advisor, Courts and Tribunals Policy)
- Paul McGregor (Policy Advisor, Courts and Tribunals Policy)
[Out of scope – paragraphs 1-17]
Logistical issues related to open hearings and increased jurisdiction
18. The discussion focussed on the practical problems that may arise from Cabinet’s
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December 2013 decisions.  Anne felt more court staff would be required to
accommodate these changes and that they would substantially change the nature of
the DT from a tribunal to a court.
Action points:
- Policy to begin drafting bil
- Anne and Cynthia wil  need to give their concerns at the select commit ee stage
Publication of referee’s decisions  OFFICIAL
19. Warren confirmed previous discussion with Anne:
• A selection of ‘useful’ decisions would stil  be able to be published
• Publication requirement would not come into play for perhaps another 24 months
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• Publication requirement could ‘piggy back’ on whatever system or process is put in
place for District Court decisions.
• Anonymisation would not be required (unless the referee felt it necessary) because
the hearings would no longer be held in private.
20. Anne and Cynthia aired their concerns, which included:
• Referees would be slower to deliver decisions because they would feel their decision
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might be critiqued by academics, law practitioners etc
• Parties may start bringing a number of decisions with them to hearings, which
wouldn’t be useful.
• Most matters before the DT were of very low public interest. Recording them for all
to see might put people off using the DT.  Or it might allow curious parties (such as
neighbours) to find out private information (such as financial dif iculty) about
individuals.
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21. Warren agreed these were legitimate concerns.  However, Cabinet had weighed up
these concerns and made its call on where the balance should lie.
22. Warren noted that the Ministry needed to draft a bil  and that the place for Anne and
Cynthia to raise these concerns was at the select committee stage.
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23. Warren also noted that he had slowed up the drafting of the bil  to allow these
discussions to happen at this early stage, in case the bil  was passed with these
changes in it.
Action points:
- Policy to begin drafting bil
- Anne and Cynthia wil  need to give their concerns at the select commit ee stage
[Out of scope – paragraphs 24-25]
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Excerpt from ‘Additional Proposals for the Courts and Tribunals Enhanced Services
Bill’
10 April 2015
ACT
Action Sought
Timeframe/Deadline
Decide which additional proposals if any should be included in the  At your convenience
Courts and Tribunals Enhanced Services Bil  (CATES)
[Out of scope – remainder of page 1]
Additional Proposals for the Courts and Tribunals Enhanced Services Bil
Purpose
[Out of scope – paragraph 1]
2.
The paper also provides a fuller explanation of the rationale for proposing that Cabinet
should rescind two earlier decisions requiring open Disputes Tribunals hearings and
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the publication of Disputes Tribunals decisions.
[Out of scope – paragraphs 3-7]
Rationale for rescinding Disputes Tribunals decisions
8.
The decisions to open Disputes Tribunals hearings to the public and to publish
Disputes Tribunal decisions were part of a suite of changes to increase transparency
across courts and tribunals. Following further consideration and discussion with key
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stakeholders, we now recommend the rescinding of these decisions on the grounds
that they are not appropriate for the Disputes Tribunals and could fundamentally alter
their unique nature.  The Disputes Tribunals were established to provide a simple,
inexpensive and informal dispute resolution forum that did not operate like a court.
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These characteristics could be muted if the tribunals were to operate more like courts
with open hearings and published decisions. If you agree, the draft Cabinet paper wil
also ask Cabinet to rescind these decisions.
[Out of scope – paragraphs 9-20]
B)
Rationale for rescinding Disputes Tribunals Cabinet decisions
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21.
You asked for a fuller explanation of the rationale for the proposal to ask Cabinet to
rescind the earlier decisions to open Disputes Tribunals hearings to the public and to
publish most Disputes Tribunal decisions.
22.
These decisions were part of a suite of changes to increase transparency across courts
and tribunals.  Following further consideration and discussion with key stakeholders,
including Principal Disputes Referee Anne Darroch, we now recommend the
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rescinding of these decisions on the grounds that  they are not appropriate for the  1982
Disputes Tribunals and could fundamentally alter their unique nature.
23.
The Disputes Tribunals were established to provide a simple, inexpensive and informal
dispute resolution forum that does not operate like a court. These characteristics could
be muted if the tribunals were to operate more like courts with open hearings and
published decisions. The loss of privacy could dissuade some potential claimants from
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using the Tribunals.
24.
Referees seek to settle disputes through mediation and if this is not possible, they
decide matters on their merits rather than points of law. Private hearings facilitate this
process.  Parties might not be as wil ing to compromise when their supporters are
present.
25.
The publication of decisions was intended to be implemented in conjunction with the
development of electronic courts.  The Ministry considers that the benefits of manual
publication would not outweigh the significant costs.  These decisions do not set
precedents and most relate to private matters of little interest to the general public.
26.
At present, the Principal Disputes Referee periodically publishes a small number of
decisions of particular note in an anonymised form.  These are organised into
categories to allow potential users to easily identify relevant cases.  This practice wil
continue.
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[Out of scope – paragraphs 27-28]
Recommendations
29.
It is recommended that you:
[Out of scope – paragraphs 29.1-29.5]
6. Agree that the Cabinet paper include a proposal to rescind the Disputes Tribunals
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decisions requiring open hearings and publication of most decisions on the
grounds that this could fundamentally alter the unique nature of the tribunals by
making them too much like courts;
[Out of scope – paragraph 29.7]
THE
[Out of scope – appendices 1-3]
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1982
Excerpt from ‘Cabinet Minute of Decision’
SOC-16-MIN-0066
Cabinet Social Policy Committee
ACT
Modernising the Courts and Tribunals System
Portfolio
Courts
On 1 June 2016, the Cabinet Social Policy Committee:
1. noted that the following amendments wil modernise the way the courts and tribunals
system operates;
[Out of scope – paragraphs 2-6]
7. noted that in December 2013, Cabinet agreed to amend the Disputes Tribunals Act
1988 to:
7.1. require Disputes Tribunal hearings to be open to the public, except when the
referee is mediating an agreement between the parties, or there are other
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circumstances that the referee considers warrant privacy or reporting
restrictions;
7.2. introduce a legislative presumption that referees’ decisions should be published
online unless the referee considers there is good reason not to do so;
[CAB Min (13) 43/13]
8. agreed that the approach in paragraph 7 above is not appropriate for the Disputes
Tribunals and could fundamentally alter their unique nature;
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9. agreed to recommend that Cabinet rescind the decision referred to in paragraph 7;
[Out of scope – paragraphs 10-24]
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1982
Excerpt from ‘Modernising the Courts and Tribunals System’
Proposal
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1. I seek approval for legislative amendments to modernise the way the courts and
tribunals system operates.
[Out of scope – paragraphs 2-27]
Rescinding Cabinet decisions relating to the Disputes Tribunals
28  I propose to rescind Cabinet’s decisions to:
28.1.  require Disputes Tribunal hearings to be open to the public, except when the
referee is mediating an agreement between the parties, or there are other
circumstances that the referee considers warrant privacy or reporting
restrictions;
28.2.  introduce  a  legislative  presumption  that  referees’  decisions  should  be
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published online unless the referee considers there is good reason not to do
so [CAB Min (13) 43/13].
29  Following further consideration and discussion with key stakeholders, I have
concluded that this approach is not appropriate for the Disputes Tribunals and could
fundamentally alter their unique nature.
30  Disputes Tribunals provide a simple, inexpensive and informal dispute resolution
forum. Referees seek to settle disputes through mediation and if this is not possible,
they decide matters on their merits rather than points of law. Private hearings
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facilitate this process. Similarly, the loss of privacy associated with the publication of
most decisions could dissuade some people from using the tribunals. The Principal
Disputes Referee periodically publishes a small number of decisions of particular
note in an anonymised form on the internet. This makes important decisions
accessible to the public.  THE
31  Cabinet has agreed to rescind the equivalent decisions requiring publication of
judicial decisions online through a Supplementary Order Paper (SOP) to the
Judicature Modernisation Bil .
[Out of scope – paragraphs 32-77.6]
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7  note Cabinet agreed to amend the Disputes Tribunals Act 1988 to:
7.1  require Disputes Tribunal hearings to be open to the public, except when the referee
is mediating an agreement between the parties, or there are other circumstances
that the referee considers warrant privacy or reporting restrictions;
[Out of scope – paragraphs 77.7.2-77.26]
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1982
Excerpt from ‘Cabinet Minute of Decision’
CAB-16-MIN-0250.01
Modernising the Courts and Tribunals System
ACT
Portfolio
Courts
On 7 June 2016, following reference from the Cabinet Social Policy Committee (SOC),
Cabinet:
1. noted that the following amendments wil modernise the way the courts and tribunals
system operates;
[Out of scope – paragraphs 2-6]
7. noted that in December 2013, Cabinet agreed to amend the Disputes Tribunals Act
1988 to:
7.1
require Disputes Tribunal hearings to be open to the public, except when the
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referee is mediating an agreement between the parties, or there are other
circumstances that the referee considers warrant privacy or reporting
restrictions;
7.2
introduce a legislative presumption that referees’ decisions should be
published online unless the referee considers there is good reason not to do
so;
[CAB Min (13) 43/13]
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8. agreed that the approach in paragraph 7 above is not appropriate for the Disputes
Tribunals and could fundamentally alter their unique nature;
9. rescinded the decisions referred to in paragraph 7;
THE
[Out of scope – paragraphs 10-25]
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