Courts (Remote Participation) Act 2010
Version as at 2 March 2025
Courts (Remote Participation) Act 2010
Public Act |
2010 No 94 |
|
Date of assent |
6 July 2010 |
|
Commencement |
see section 2 |
Note
The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.
Note 4 at the end of this version provides a list of the amendments included in it.
This Act is administered by the Ministry of Justice.
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Courts (Remote Participation) Act 2010.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
Part 1 Preliminary provisions
3 Interpretation
In this Act, unless the context otherwise requires,—
audio link, or AL, in relation to a proceeding, means facilities that enable audio communication to take place between participants or (as the case may be) to be received by a victim or support person under section 9A when some or all of them are not physically present at the place of hearing for all or part of the proceeding
audio-visual link, or AVL, in relation to a proceeding, means facilities that enable both audio and visual communication to take place between participants or (as the case may be) to be received by a victim or support person under section 9A 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 criminal proceedings
Community Magistrate has the same meaning as in section 4 of the District Court Act 2016
court means a New Zealand court
Court of Appeal means the Court of Appeal of New Zealand constituted under Part 3 of the Senior Courts Act 2016
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
District Court includes—
(a)
the Family Court and the Youth Court; and
(b)
the 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
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 authority 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 Court, or the 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 Employment Court, the Environment Court, the Maori Appellate Court, and the Maori Land Court
offence has the meaning given in section 4 of the Victims’ Rights Act 2002
participant, in relation to a proceeding, means a person who is, in that proceeding, any of the following:
(a)
a party:
(b)
the defendant:
(c)
counsel:
(d)
a witness:
(e)
a member of the jury:
(f)
a judicial officer who is presiding over the proceeding:
(g)
a Registrar who is presiding over the proceeding:
(h)
any other person directly involved in the proceeding whom the judicial officer or Registrar 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 65 of the Senior Courts Act 2016
victim has the meaning given in section 4 of the Victims’ Rights Act 2002 (and paragraph (b)(i) and (ii) of that definition also applies for the purposes of this Act)
witness means a person who gives evidence and is able to be cross-examined in a proceeding.
Section 3 audio link or AL: inserted, on 3 September 2024, by section 4 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 3 audio-visual link or AVL: replaced, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 3 Community Magistrate: replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 3 Court of Appeal: amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
Section 3 District Court: replaced, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 3 New Zealand Court paragraph (a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 3 offence: inserted, on 3 September 2024, by section 4 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 3 Supreme Court: amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
Section 3 victim: inserted, on 3 September 2024, by section 4 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
4 Act binds the Crown
This Act binds the Crown.
Part 2 Use of audio-visual links and audio links in proceedings
Part 2 heading: amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
5 General criteria for allowing use of audio-visual links and audio links
A judicial officer or Registrar must consider the following criteria when they are making a determination under this Act whether or not to allow the use of AVL or AL for the appearance of any participant in a proceeding or for the observation of a proceeding by a victim or support person:
(a)
the nature of the proceeding:
(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—
(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.
6 Additional criteria for allowing use of audio-visual links and audio links in criminal proceedings
A judicial officer or Registrar must also consider, when they are required to determine under this Act whether or not to allow the use of AVL or AL for the appearance of any participant in a criminal proceeding or for the observation of a criminal proceeding by a victim or support person, 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 the defendant’s rights associated with the hearing, and, in particular,—
(a)
the ability of the defendant—
(i)
to comprehend the proceedings; and
(ii)
to participate effectively in the conduct of their defence; and
(iii)
to consult and instruct counsel privately; and
(iv)
to access relevant evidence; and
(v)
to examine the witnesses for the prosecution; and
(b)
the level of contact the defendant has with other participants; and
(c)
any adverse impression that may arise through the defendant or any other participant appearing, or a victim or a support person observing, by means of AVL or AL, and whether that adverse impression may be mitigated.
Section 6 heading: amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 6: amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 6(a)(ii): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 6(c): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
7 Use of audio-visual links in civil proceedings
(1)
AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.
(2)
A judicial officer or Registrar may make a determination under subsection (1)—
(a)
on their own motion; or
(b)
on the application of any participant in the proceeding.
(3)
A determination under subsection (1) must—
(a)
be made in accordance with the criteria in section 5; and
(b)
take into account whether or not the parties consent to the use of AVL for the appearance of the participant.
Section 7(2)(a): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
7A Use of audio links in civil proceedings
(1)
This section applies if—
(a)
a judicial officer or Registrar would otherwise have determined under section 7 that AVL be used for the appearance of a participant in a civil proceeding; or
(b)
the only reason that a judicial officer or Registrar would not have made such a determination is because AVL is not available.
(2)
The judicial officer or Registrar may determine that AL be used instead of AVL for the appearance of the participant in the civil proceeding if—
(a)
the judicial officer or Registrar considers the criteria set out in section 5 in deciding whether the use of AL is appropriate in the circumstances; and
(b)
the judicial officer or Registrar considers the potential impact of the use of AL on the ability of the parties to the proceeding—
(i)
to comprehend the proceeding; and
(ii)
to participate effectively in the proceeding; and
(iii)
to consult and instruct counsel privately; and
(iv)
to access relevant evidence; and
(v)
to examine witnesses; and
(c)
the judicial officer or Registrar determines that it is not contrary to the interests of justice to use AL instead of AVL.
(3)
However, the judicial officer or Registrar may not determine that AL be used instead of AVL for the appearance of the participant in the civil proceeding if the proceeding is the hearing of an application for which the participant must be present under—
(a)
section 121 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(b)
section 19 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(c)
section 76 of the Substance Addiction (Compulsory Assessment and Treatment) Act 2017.
Section 7A: inserted, on 3 September 2024, by section 5 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
7A Use of audio links in civil proceedings
[Repealed]Section 7A: repealed, on 20 October 2022, by section 7A(3).
8 Use of audio-visual links in criminal procedural or sentencing matters
(1)
AVL must be used for the appearance of a participant in a criminal procedural matter if AVL is available and the participant is in custody, unless a judicial officer or a Registrar determines that the use of AVL is contrary to the interests of justice.
(1A)
AVL may be used for the appearance of a participant in a criminal procedural matter—
(a)
if AVL is available; and
(b)
unless a judicial officer or a Registrar determines that the use of AVL is contrary to the interests of justice.
(2)
AVL may be used for the appearance of a participant in a sentencing matter if—
(a)
AVL is available; and
(b)
the participant is in custody; and
(c)
a judicial officer determines that the use of AVL is not contrary to the interests of justice.
(3)
Before making a determination under subsection (1), (1A), or (2), the judicial officer or Registrar (as the case may be) must take into account the criteria specified in sections 5 and 6.
(4)
To avoid doubt, a motion to determine whether AVL is contrary to the interests of justice may be made by the participant or the judicial officer or Registrar (as the case may be).
Section 8: replaced, on 1 March 2017, by section 4 of the Courts (Remote Participation) Amendment Act 2016 (2016 No 60).
Section 8 heading: amended, on 14 November 2018, by section 108(1) of the Courts Matters Act 2018 (2018 No 50).
Section 8(1A): inserted, on 14 November 2018, by section 108(2) of the Courts Matters Act 2018 (2018 No 50).
Section 8(3): amended, on 14 November 2018, by section 108(3) of the Courts Matters Act 2018 (2018 No 50).
8A Use of audio links in criminal procedural matters
(1)
(2)
A judicial officer or Registrar may determine that AL be used instead of AVL for the appearance of the participant in the criminal procedural matter if—
(a)
the judicial officer or Registrar considers the criteria set out in sections 5 and 6 in deciding whether the use of AL is appropriate in the circumstances; and
(b)
the defendant is not required to, and does not wish to, attend the hearing; and
(c)
the judicial officer or Registrar determines that it is not contrary to the interests of justice to use AL instead of AVL.
Section 8A: inserted, on 3 September 2024, by section 6 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
8A Use of audio links in criminal procedural matters
[Repealed]Section 8A: repealed, on 20 October 2022, by section 8A(3).
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 a judicial officer 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 proceeding consent to the use.
(2)
Despite subsection (1), AVL must not be used for the appearance of the defendant in a trial that determines the defendant’s guilt or innocence unless the defendant consents to that use.
Section 9(2): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
9A Use of audio-visual links and audio links by victims and support persons to observe trial and sentencing
(1)
Despite section 9, a victim of an offence and any support person of the victim are entitled to observe all or part of the trial and sentencing for the offence by the use of AVL or AL (the relevant technology) if—
(a)
the relevant technology is available; and
(b)
the victim gives the court notice that they wish to use the relevant technology; and
(c)
there is reasonable time, after the victim gives notice, for the court to make the necessary arrangements for the use of the relevant technology; and
(d)
the trial or sentencing that is to be observed is open to the public; and
(e)
the victim and any support person are otherwise entitled to be physically present.
(2)
However, subsection (1) does not apply if a judicial officer or a Registrar determines that the use of the relevant technology is contrary to the interests of justice.
(3)
Before making a determination under subsection (2), the judicial officer or Registrar (as the case may be) must take into account the criteria specified in sections 5 and 6.
Section 9A: inserted, on 2 March 2025, by section 7 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
10 Judicial officer or Registrar may vary or revoke determination
(1)
A judicial officer may at any time vary or revoke a determination to allow the use of AVL or AL for the appearance of a participant, or a determination in relation to the use of AVL or AL for observation by a victim or support person, if the judicial officer considers that any reason for the determination, with respect to the criteria in section 5, or sections 5 and 6 (as the case may be), no longer applies.
(2)
A Registrar may at any time vary or revoke their determination, or the determination of another Registrar, to allow the use of AVL or AL for the appearance of a participant, or in relation to the use of AVL or AL for observation by a victim or support person, if the Registrar considers that any reason for the determination, with respect to the criteria in section 5, or sections 5 and 6, as the case may be, no longer applies.
11 Judicial officer or Registrar may make direction
A judicial officer or Registrar who makes a determination under this Act in relation to the use of AVL or AL for the appearance of a participant in a proceeding, or for the observation of a proceeding by a victim or support person, may make a direction in accordance with that determination.
Section 11: amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
12 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 to the proceeding because of the use of AVL or AL in the proceeding.
Section 12: amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
13 Determining place of hearing
The place of hearing of any proceeding in which 1 or more of the participants appear by the use of AVL or AL—
(a)
is the place that the relevant judicial officer determines as appropriate in the circumstances; or
(b)
is, in the case where the participants consent to having a Registrar make the decision, the place that the relevant Registrar determines as appropriate in the circumstances.
14 Attendance at hearing
(1)
A participant, victim, or support person who appears at or observes a proceeding, or part of a proceeding, by the use of AVL or AL under this Act is regarded as being 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, victim, or support person is in New Zealand.
15 Documents and other exhibits when person appears at proceeding by use of AVL or AL
A document may be put to or by a person appearing at a proceeding by the use of AVL or AL, or another exhibit may be shown to or by that person,—
(a)
by transmitting the document or other exhibit electronically; or
(b)
by use of AVL; or
(c)
by any other manner that the judicial officer or Registrar thinks fit.
16 Relationship with other enactments
(1)
The appearance by a participant at a proceeding by the use of AVL or AL to the extent that is authorised by this Act fulfils the corresponding legal requirements in relation to their appearance in person at the proceeding under every enactment and rule of court, unless that other enactment or rule of court expressly provides otherwise.
(2)
If an enactment or rule of court provides for the appearance by a participant at a proceeding, or the observation of a proceeding by a victim or support person, by the use of AVL, AL, or video link in a court proceeding, then this Act must be read subject to that enactment or rule of court.
17 AVL or AL does not affect exercise of judicial officer’s powers
To avoid doubt, a judicial officer or Registrar presiding in a proceeding in which AVL or AL is used has all the powers that they would have if the participant, victim, or support person appeared in person.
18 Regulations
(1)
The Governor-General may, on the recommendation of the 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 or AL:
(b)
prescribing any method or technology of AVL or AL as one which is suitable for use as AVL or AL 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 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
(b)
may consult with other Ministers as the Minister considers appropriate.
(3)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 18(1)(a): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 18(1)(b): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 18(2)(b): amended, on 3 September 2024, by section 8 of the Courts (Remote Participation) Amendment Act 2024 (2024 No 33).
Section 18(3): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
19 Amendment to Evidence Act 2006
(1)
This section amends the Evidence Act 2006.
(2)
The following section is inserted after section 102:
102A Relationship of Courts (Remote Participation) Act 2010 to sections 103 to 106
Nothing in the Courts (Remote Participation) Act 2010 affects or limits the ability of—
(a)
a party to apply under section 103(1) for evidence to be given in an alternative way; or
(b)
a Judge to make directions under that subsection.
Notes
1 General
This is a consolidation of the Courts (Remote Participation) Act 2010 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
2 Legal status
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.
3 Editorial and format changes
The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.
4 Amendments incorporated in this consolidation
Courts (Remote Participation) Amendment Act 2024 (2024 No 33): Part 1
Secondary Legislation Act 2021 (2021 No 7): section 3
Courts Matters Act 2018 (2018 No 50): Part 4 subpart 3
Courts (Remote Participation) Amendment Act 2016 (2016 No 60)
District Court Act 2016 (2016 No 49): section 261
Senior Courts Act 2016 (2016 No 48): section 183(b)
Courts (Remote Participation) Act 2010 (2010 No 94): sections 7A(3), 8A(3)