Hon SIMON POWER (Minister of Justice) Link to this
I move, That the Legal Assistance (Sustainability) Amendment Bill be now read a first time. At the appropriate time I intend to move that the Legal Assistance (Sustainability) Amendment Bill be referred to the Justice and Electoral Committee for consideration.
The Legal Assistance (Sustainability) Amendment Bill marks the next step of the Government’s legal aid reform by addressing the financial sustainability of legal services paid for by the Crown and, of course, directly by the taxpayer of New Zealand. New Zealand’s current legal aid system is unsustainable and unaffordable. Legal aid expenditure increased—[Interruption]
The ASSISTANT SPEAKER (H V Ross Robertson) Link to this
Members leaving the Chamber, please do so and show some courtesy to the member who is trying to address the House.
Thank you, Mr Assistant Speaker Robertson. Legal aid expenditure increased by 55 percent between 2006-07 and 2009-10. Over the 5 years to 2014-15, this growth was expected to result in a $402 million gap between the forecast and the baseline funding. The Government had to act to bring this growth under control. In April I announced a balanced package of changes that would begin to bring legal aid expenditure under control. The package involved changes to how legal aid services are purchased, the eligibility criteria for legal aid, and payments received from legally aided persons. This bill implements those changes.
Part 1 of the bill will strengthen the legal aid eligibility test by tightening the merits tests for family cases, reducing the discretion to grant legal aid to people whose income and assets are above the financial eligibility thresholds, ensuring that people who can afford to pay for their criminal defence do so, and removing the requirement to index financial eligibility thresholds to movements in the consumer price index. The bill will increase the contributions received from legally aided people and better incentivise the repayment of legal aid by introducing a $100 user charge for most family and civil cases, and charging interest on outstanding legal aid debts. Furthermore, family and civil matters for which legal aid can be granted will be put into a schedule that can be amended by Order in Council. This will provide the Government greater flexibility to manage legal aid eligibility in the future.
Part 2 of the bill will make changes to lawyer for the child and youth advocate schemes to ensure that there is greater consistency across Government-funded legal assistance schemes. The changes include extending the quality framework for legal aid providers to child and youth advocates, and requiring parties to contribute to the costs of the lawyer for the child services. Extending the quality framework will ensure that lawyers providing lawyer for the child and youth advocate services maintain and continue to provide high-quality legal services. It will ensure consistency between the Government-funded legal aid, lawyer for the child, and youth advocate schemes. Requiring parties to contribute to the cost of lawyer for the child services will help ensure that the services continue to be available and are financially sustainable into the future. This change is expected to recover approximately $15 million of the cost of providing these services over the 4-year Budget forecast period. The bill also makes small changes to the Legal Services Act 2011 to improve its operation and address issues that have arisen during its implementation.
These changes, along with other changes that do not require legislation, will reduce forecast legal aid expenditure by $138 million over 4 years. However, they will not meet the full funding gap. The Government will consider further changes in the coming months to bridge the remaining gap.
The legal aid budget is under extreme pressure. The changes in this bill are vitally important to secure the financial sustainability of the legal aid system. They will ensure that legal aid is sustainable and will continue to be available for the people who need it most in the future. I commend this bill to the House.
CHARLES CHAUVEL (Labour) Link to this
I hope that the Minister of Justice does not have cause in the years to come, after he has left this House permanently, to regret the last paragraph of the speech he has given. He gave us an assurance that the Legal Assistance (Sustainability) Amendment Bill would not deleteriously affect those most in need of assistance from the Crown when they are accused of a crime.
I want the House to be very clear about what we will be doing today if this bill is read a first time. The bill is couched in very comforting terms. It sounds innocuous: “We are just reviewing thresholds.”, “We’re applying the civil threshold to minor criminal matters.” Nonsense. We are doing something much more Draconian than that, and I will spell out what this bill will do.
Hon Tau HenareMr Henare might like to read the Crimes Act, because when his constituents come to him in his office and say that they cannot get legal aid because the Government has removed their entitlement to it, I wonder what he will tell them.
Here are some of the offences that will now be put beyond the entitlement that people have to legal assistance. All that needs to happen is for someone to be accused of one of these offences, and there will be no entitlement to assistance if they earn more than $22,000 a year. That is National’s new definition of the rich. Most of the offences in the Summary Offences Act are covered. Crimes Act offences covered include distribution of indecent material, indecent acts in a public place, criminal nuisance, misconduct in respect of human remains, concealment of the dead body of a child, injury by unlawful act, aggravated assault, assault with intent to injure, assault on a child or by a male on a female, common assault, possession of offensive weapons or a disabling substance, unlawful use of interception devices, unlawful disclosure of private communications, and the making, possessing, and publishing of intimate video recordings. The list continues: theft of property worth under $1,000, attempted conversion of a vehicle, being in disguise or in possession of instruments for burglary, the receiving of stolen property worth under $1,000, and the making, selling, distributing, or possessing of software for committing a crime. There are many more offences under the relevant legislation.
These are serious offences, and if somebody is accused wrongly of one of these offences—and we all know that it happens—and they are earning over $22,000 a year, then they will not have anywhere to turn as of right for assistance with their defence. What will they do? They will plead guilty. They will go to jail. Innocent people, as a result of this legislation, will go to jail—as if we were not locking up enough people in this country already.
I ask Mr Henare, again, what he will say to his constituents when they come to him and say that they do not have a bean, that they are accused wrongly of a serious offence, and that they cannot get any help. That is what Parliament will be doing today if we pass this legislation. Let us not be in any mistaken frame of mind about what this proposal will mean in practice.
It goes further than the criminal side because it deals with civil matters as well, and it imposes that savage threshold of $22,000 a year in income. Again, that is the definition of rich according to Mr Power—I myself think that that is pretty rich. If Kiwis are earning $22,000 a year, they will not be eligible for legal aid in civil matters unless there are exceptional circumstances. What will happen if someone’s neighbours are sued and they do not earn very much? They will need a lawyer to help them out. If they are wrongly sued, if they are named in a civil action but they should not be a party to that civil action, they will not be able to get assistance to defend themselves. Again, that is what the effect of this legislation will be. It is unconscionable. People who through no fault of their own are caught up in civil proceedings, and who do not have enough money to defend themselves, will be in no position to avail themselves of the services of a lawyer to get them out of that position. That is not a position that this Parliament should ever countenance putting any fellow Kiwi into. It is shameful, and we should reject the propositions contained in the legislation that will advance that position.
There is another matter that I am troubled about in respect of the civil justice provisions in this legislation. It is in respect of applications for personal care, protection, or welfare issues when there is a vulnerable person like a child at risk, a person at risk of domestic violence, a mentally ill person, or a refugee. The restrictions already discussed will apply to those people, as well, when they need to seek legal aid in order to make an application in respect of their personal care, property, or welfare. Admittedly there are some hardship provisions in the legislation, but, again, let us be in no doubt about the effect of this legislation. Vulnerable people who need to instruct a lawyer in order to seek the protection of the courts—a fundamental right of anybody in New Zealand—will be prevented from doing that by this legislation.
No amount of yelling, screaming, and interjecting by Mr Henare will change that sad fact. I hope that he does not vote for this legislation, because we all know which most vulnerable New Zealanders will be adversely affected by these provisions.
If that were not enough, a user charge is contemplated in this legislation. We heard from the Minister that it would be $100. The bill provides that if people cannot pay $100, then they will be able to pay interest until such time as they can. In the calculation of people’s net value to determine their entitlement to seek legal aid from the Government, guess what will be taken into account under this bill. It is people’s personal items of clothing, their household furniture, their household appliances, and workers’ tools of trade. They will all have to be put into the mix when people fill out the form used to decide whether they are poor enough to get legal aid from the State when they have been accused of a crime and want to defend themselves, they have become party to some civil litigation and want advice on how to get out of that, or they are vulnerable people who need to seek the protection of the court. I think we should be ashamed of these provisions. Applicants will have to say what their vacuum cleaner is worth, what their couch is worth, and what their jeans and jackets are worth. This is the sort of level that we have sunk to under this Minister and this Government when it comes to something as fundamental in this country as access to justice.
Finally, there is a provision concerning family law. As members will know, when there is a relationship dispute and a child is involved, the court appoints counsel to represent the child. This bill will require the parties to family law disputes to contribute to the costs of that counsel. What if they cannot afford to do that? Does this mean that they will have to suffer substantial hardship, or, alternatively, that the child will miss out on representation, a fundamental part of the system as we know it in family law cases?
The Minister talked about a crisis in the funding of legal aid. I sat in the former Minister of Justice’s office 4 years ago when she was meeting with the president of the Law Society after the previous Government had increased the legal aid entitlements available to lawyers for the first time in 20 years. It was not a lavish increase; it was a modest one. It just about kept enough providers in the system to continue to provide the services that were required.
We can do better than this. We can do better than make savage cuts to the rates of entitlement at which people who need access to justice can, with assistance from the State, access that assistance. We can do better at recovering grants of aid by treating that aid as more of a loan than a grant. There are many, many other ways that we can be fiscally responsible while ensuring that we retain people’s access to justice as a fundamental right. I implore the House to consider those alternatives rather than to pursue this bill.
CHESTER BORROWS (National—Whanganui) Link to this
Thank you for the opportunity to speak on the Legal Assistance (Sustainability) Amendment Bill. Drawing on experience as a police prosecutor and, later on, a criminal legal aid lawyer, it is interesting to see a tension between wanting to live in a country where we supply people accused of crimes the ability to draw on legal services free of charge, so that they can make an adequate defence, and at the same time recognising that those costs come at a cost to the taxpayer, so there needs to be some control on them. Decisions that are made, from time to time, in respect of policy mean that some of those costs blow out. It is also true to say that probably no one is more unduly maligned within the criminal legal aid system than the lawyers who are prepared to work as criminal legal aid defence counsel.
It is, though, timely for the Government to take stock of where legal aid is going in this country, and to try to account for the Budget responsibilities it has. National wants to make sure that legal aid is available for those who need it, while ensuring that it remains affordable in the future. Budget 2011 included $103.5 million in short-term funding, while longer-term sustainability issues were addressed both through this bill and through a wider review of the Family Court.
The previous speaker, Charles Chauvel, made a number of very salient points in respect of the delivery of legal aid in the society in which we want to live. There is a huge disparity, for instance, between the amounts of money that are supplied for Crown legal representatives and for those who are supplied, on behalf of the taxpayer, to those accused. Both bills are met by the taxpayer, but for some reason there is a huge disparity there. That is just one of the many issues that will need to be investigated. I also accept that there are many creative ways in which we can do it. This bill seeks to do a number of those things, and I commend it to the House.
CARMEL SEPULONI (Labour) Link to this
As my colleague Charles Chauvel has said, we have concerns about the Government’s overall direction in respect of its justice policy, which inhibits access to justice and creates the potential for substantial miscarriages of justice. For that reason—and I will explain in more detail why—we will not be supporting the Legal Assistance (Sustainability) Amendment Bill.
Labour believes in an accessible justice system, and we have serious reservations about the direction of the reforms in the justice system under this Government. This bill essentially rolls back the expansion that was made under Labour in 2007, making it harder for people to access lawyers. At that time, legal aid had not been reviewed in two decades, and the then National Opposition criticised the Labour Government for not making enough legal aid available. Labour introduced a new repayment and debt management scheme, which is where the focus on sustainability should be, rather than on penalising people on low and modest incomes who genuinely need a lawyer and need to be able to access legal representation.
The changes encourage legal aid applicants to consider whether they wish to proceed with litigation. This may dissuade people from pursuing a justified case, limiting a person’s right to access justice. The current means test will be modified in the case of offences that are not punishable by a maximum term of imprisonment above 3 years. The Minister of Justice has indicated that the threshold will apply to those earning $22,000 for a single adult, and $51,000 for an adult with two dependants—and $22,000 is not a lot of money. To deny that access to anyone who is earning $22,000 or over does not seem to anyone on this side of the House to be very just. In fact, we fear for the ability of those people to get representation for themselves in respect of the legal matters that they may be confronted with. We are concerned that this may force people into representing themselves in court, increasing the chances of miscarriages of justice. I am sure that other members in the House would agree that our general, everyday Joe Bloggs would not necessarily have the skill set to represent themselves effectively in court, if required.
The cut to legal costs by significantly expanding the Public Defence Service, at the expense of independent lawyers providing legal aid, is a concern for us. The latest review of the Public Defenders Service in England and Wales showed that the Minister’s solution to expand the Public Defence Service will cost the taxpayer considerably more than it does currently.
Mr Bridges probably does not recognise that often in these matters research is required, and we look overseas for examples. I was just citing those examples. Although Labour supports the existence of the Public Defence Service, as it was initiated under our Government, we believe that independent lawyers should provide the bulk of criminal defence work.
The lack of balance in what the Minister is proposing will lead to a lack of quality in terms of legal defence options for Kiwis facing charges. The quality of our justice service is certainly in question after 2½ years of the National Government being in charge. Furthermore, the Government’s plan for the Public Defence Service, along with the denial of those charged with category 1 or 2 offences to choose their own lawyer, restricts choice for individuals. Those who have a history, particularly in mental health issues, may be forced to have a lawyer who does not know them, the disadvantages they face, or the full state of their circumstances, and perhaps will not have enough time to investigate in order to provide a comprehensive defence.
The Minister, Simon Power, has not made available the figures for actual costs, including all administration, set-up, and expansion costs. There needs to be greater transparency to improve access to justice for all New Zealanders, and unfortunately we are not seeing that under the National Government. The Ministry of Justice asserts that criminal legal aid is the highest expenditure area, and that it is steadily increasing. However, criminal lawyers are rarely the initiators of legal actions; therefore, if there is increased use of legal aid lawyers, arguably it is also because the number of charges in summary and indictable offences has increased.
When the legal aid reforms were announced, Mr Power said: “We cannot continue to ignore the substantial cost pressures the system is facing, particularly at a time when New Zealand is being forced to borrow an average of $300 million a week.” The Government gave $2.5 billion in tax cuts to the top 10 percent of earners. I think we need to keep that in mind, in light of Simon Power’s statement. The Government gave $2.5 billion in tax cuts to the top 10 percent of earners. Meanwhile, people earning over $22,000 will now find it tougher to access legal aid, even if faced with a criminal charge.
I think we are seeing again where the Government’s priorities lie. The money could have been put in place to ensure that justice is accessible to all Kiwis—to all New Zealanders. Instead the Government now cites financial difficulty and the fact that we are currently borrowing so much money as reasons to cut access to justice for the vast majority of New Zealanders, yet the Government can still give $2.5 billion in tax cuts to the top 10 percent of earners in this country. Again, I say that that really shows what the National Government’s priorities are.
Implications for those charged and facing bail are that duty solicitors will apply for bail on behalf of a defendant only in a category 1 offence; if a defendant is waiting to get legal aid, or cannot get legal aid, then he or she may not be able to have successful bail; and innocent people may have to spend some time in jail because of the timing of the application while their access to legal aid is being examined.
The purpose of the merits test for granting family legal aid is to encourage parties to resolve more minor matters themselves. Most parenting applications already require parties to undergo counselling and mediation before there is a hearing in court. Legal representation ensures that parents are aware of all of their legal obligations. The changes to legal aid provisions to deal with the rising cost of family legal aid grants disregard the changing landscape of families in New Zealand. So we have some major concerns with the legislation that we have before us.
As I said at the beginning of my speech, Labour will be opposing this bill because of the concerns we have about the Government’s overall direction with regards to its justice policy, which really does inhibit access to justice and creates the potential for substantial miscarriages of justice. That is what we will be looking down the barrel of, going into the future, if this legislation is passed.
Overall, the bill amends the Legal Services Act 2011 and other Acts to limit the number of legal aid grants and to increase the amount legally aided people must pay. The bill also limits eligibility for legal aid, reintroduces a user charge for civil and family legal aid, and enables interest to be charged on legal aid debts. Our concern is that at a practical level, in terms of people’s real-life experiences, we will see people who earn $22,000 or over, which is really not a lot of money, losing what in this country they fundamentally have a right to, and that is justice. They will no longer be able to afford it, and there will be cases where because a person cannot afford it, that person will be forced to represent themselves in court. That in turn will increase the chance of a miscarriage of justice.
We oppose this bill, and we hope our colleagues across the House will see some sense and join us in opposing it also.
Dr KENNEDY GRAHAM (Green) Link to this
The Legal Assistance (Sustainability) Amendment Bill purports to be about sustainability. By that, the Government means financial sustainability, not the sustainability of justice. The bill seeks to amend an Act that the Government passed into law this very year. The bill is unique, in my experience in this Parliament, in containing no statement of purpose; the purpose is set out in the explanatory note and in the regulatory impact statement.
The thrust of the bill is to curtail the burgeoning cost of legal aid. The cost has grown substantially in the past 3 years, and the current level is held to be unsustainable in the long term.
Dr KENNEDY GRAHAM Link to this
The level of legal aid expenditure, we are told, has shot up in the past 5 years. Since 2005 it has increased 13 percent per year, with a 23 percent increase in 2009—shame on National. The gap between forecast expenditure and the Budget baseline is widening—further shame on National. The bill would amend the Legal Services Act 2011 to ensure that the legal aid system remains affordable in the future—good on National—and available to those who need it.
We heard Chester Borrows mention the need to strike a balance between justice and efficiency, and that that was a difficult balance to strike. He spoke about creative ways of trying to find that balance, and then fell silent.
There are three major drivers of legal aid costs pertaining to a grant: the price, the number, and their repayment. The options for managing future expenditure were assessed by the Government in its preparation of this bill according to three criteria: cost efficiency, impact on recipients, and impact on services provided. We have gone through the bill rather hastily, since it appeared on the Order Paper only last Thursday—shame on National.
Dr KENNEDY GRAHAM Link to this
That is what I did, among other things. As we see, there are eight specific provisions, and they are as follows. Clause 5 relates to criminal matters eligible for legal aid. The effect is to bring the representation of the offender in eligible proceedings before the New Zealand Parole Board within the class of criminal matters. Clause 6 addresses the threshold of eligibility for criminal cases. It applies the means threshold that already applies to civil and family cases to cases in the criminal summary jurisdiction. In such cases, the Legal Services Commissioner must refuse to grant legal aid if the applicant’s income or disposable capital exceeds a certain threshold—and we hear it is $22,000, which is very low—with only a few exceptions.
We move to clause 7, which adjusts the special circumstances for consideration of the means test for family and civil cases. The effect of the change is to focus on expensive cases. Then we have clause 8, which pertains to vulnerable parties, and which tightens the merits tests for family cases by removing the criterion to take account of the interests of other vulnerable parties. Clause 9 ensures that eligible civil cases can be amended by Order in Council on the recommendation of the Minister, thereby diminishing the prerogative of this Parliament. Clause 10 reintroduces a user charge of $100 for family and civil cases, thereby imposing further financial strain on litigants—shame on National. Clause 19 specifies the nature of the user charges. Interest can be charged, and the clause removes inflation in the form of the Consumers Price Index as a factor in assessing eligibility levels of income and disposable capital. So the ability to keep pace with the cost of living as a factor in eligibility is removed. What dare we say? Finally, clause 20 addresses a defendant’s disposable capital that can be factored into determining eligibility for legal aid. These factors are now to include household furniture, household appliances, personal clothing, and tools of trade. So in the Government’s shameful notion of a compassionate society a defendant can literally lose the shirt off his or her back to pay for a legal defence.
In short, the bill will have the result of limiting eligibility for legal aid, limiting the number of legal aid grants, increasing the amount of legal costs eligible people must themselves pay, reintroducing the user charge for civil and family legal aid, and enabling interest to be charged on legal aid debts.
What are we to make of these changes in the name of judicial cost-cutting? For the sake of budgetary constraint, the defendant in the New Zealand judicial process will have less access to legal assistance than before. I note the conclusion in the regulatory impact statement: “The introduction of income and asset thresholds for the criminal means test will be in tension with section 24(f) of the New Zealand Bill of Rights Act, providing for the right to an affordable defence. It could also delay some court cases if judges defer proceedings because of inadequate representation.”
Apart from that judgment, the bill might be seen as also impacting on other sections of the New Zealand Bill of Rights Act. Section 23(1)(b) requires that we shall have the right to consult and instruct a lawyer without delay and be informed of that right. Section 25(a) refers to the right to a fair and public hearing by an independent and impartial court. Section 27(1) states: “Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.” Mr Bridges might do well to refresh his memory of the New Zealand Bill of Rights Act.
Dr KENNEDY GRAHAM Link to this
The member was not listening. Mr Bridges needs to listen, as well.
In the Green view, the need to cut budgetary cost does not justify the measures envisaged in this bill, which will have the effect of depriving people in tough circumstances of their traditional legal rights of access to justice. It is, in fact, no laughing matter. It is, in short, a punitive bill. We shall be opposing this bill, and, assuming it is referred to a select committee—which is not guaranteed—we shall be following it to see whether and how improvements can be made.
RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
Tēnā koe, Mr Assistant Speaker Robertson. There is a Chinese proverb that suggests that if we do not change our direction, we are likely to end up where we are headed. In the Legal Assistance (Sustainability) Amendment Bill, it is very clear that the Government is dramatically changing the policy direction, but it is unclear exactly how this will change outcomes for the people who matter most: everyday New Zealanders.
There is no question that expenditure in the current legal aid system is not sustainable. As other speakers have noted, expenditure on legal aid rose from $111 million in 2006-07 to $172 million in 2009-10, which is a massive increase of 55 percent. Ostensibly, this bill is designed to prevent such gross expenditure. It is designed to save $138 million over 4 years, but, of course, the fiscal costs are but one aspect in the debate on social justice and how it is experienced by all groups of New Zealanders.
This bill limits eligibility for legal aid, reintroduces a user charge for civil and family legal aid, and enables interest to be charged on legal aid debts. In doing so, it amends the Legal Services Act 2011 and other Acts to limit the number of legal aid grants and increase the amount legally aided people must pay. As a general principle, the Māori Party cannot support the move made in this bill to apply the guillotine to certain aspects of eligibility without bearing in mind the advice of Dame Margaret Bazley and her observations on how legal aid is used to support the claims and cases of Māori and Pasifika peoples. The Legal Services Agency report into legal aid applications reveals that a significant number of applications for legal aid were received from Māori—a total of 37,337—and also from Pasifika peoples, at over 8,000. When we compare this number with the 40,000-odd applications from Pākehā, it is evident that Māori and Pasifika families have seen much value in the support offered by legal aid. An overriding, major concern for the Māori Party in coming to this bill, then, is that Māori and Pacific peoples feature strongly amongst those most likely to experience problems that require legal assistance. Arguably, if the legal aid system fails Māori, then it fails altogether.
I am acutely aware of the wisdom gained in the report Transforming the Legal Aid System by Dame Margaret Bazley. In this report, she identified that Māori and Pacific peoples appear to face barriers in accessing legal aid, in addition to the barriers faced by other eligible people. She also recommended that the legal aid system needs to focus on the legal needs of Māori and Pacific peoples and the barriers they face in accessing legal aid, with a view to enhancing their access over time.
I return to the proverb I referred to earlier: if we do not change our direction, we are likely to end up where we are headed. Is the direction we seek to reduce the numbers of Maori and Pasifika peoples eligible for justice? Or is it about the creation of a fairer and more just legal system that would respond equally well to the needs of Māori and Pasifika New Zealanders as it does to any other group of New Zealanders? If the latter direction is what we seek for ourselves, then, surely, instead of restricting eligibility criteria and limiting eligibility to only that referred to in accordance with new schedule 1A, we might be looking more broadly at what is preventing Māori and Pasifika peoples from benefiting from due access to justice. Specific concerns we might then turn our attention to would be the barriers Māori and Pasifika peoples face, including a narrower merits test for family cases. We might focus on the reintroduction of the $100 user charge for certain cases and whether this will in practice act as a barrier to all groups being able to access legal aid fairly.
As a former lawyer, I am, of course, aware that Māori are overrepresented as legal aid users, but I am just as aware that far too many of our whānau are limited by affordability issues. So although the suggestion to require parties to contribute to the cost of lawyer for the child services to encourage the early settlement of cases might look good on paper, it will not be easily enacted in a way that makes sense for whānau.
It is somewhat ironic that in a bill supposedly promoting justice—and, therefore, access to justice—measures are being introduced that could actually be counter-productive. I refer to the introduction of compulsory repayment orders and the proposal to charge interest on all debts, which in effect will mean that many of our families will go further into debt.
The Māori Party recognises that there are some useful parts of the bill, which we support. In particular, we support the opportunity for certain recipients of grants to be exempt from the requirement to pay a user charge. The exempted recipients are certain claimants to the Waitangi Tribunal, parties to proceedings under the Children, Young Persons, and Their Families Act 1989, applicants for protection orders or orders relating to property of the Domestic Violence Act 1995, patients or proposed patients in proceedings under the Mental Health (Compulsory Assessment and Treatment) Act 1992, care recipients in proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, victims in respect of inquests or hearings before the Parole Board, and applicants for recognition as a refugee or a protected person.
We support this list of exemptions of what might be more commonly referred to as cases involving vulnerable parties. The nature of cases referred to—including mental health matters, the care and protection of children, and domestic violence—are legal aid areas that Māori tend to be overrepresented in, so we welcome the opportunity for their needs to be considered. However, as a general focus, our commitment as the Māori Party is to support the human rights of all people by ensuring their access to justice. We cannot be confident that this bill achieves that.
We promote restorative justice systems where victims are empowered and where community involvement in the justice process is enhanced. We do not consider that the Legal Assistance (Sustainability) Amendment Bill enables these goals to be realised. As such, at this first reading we will be voting against the bill.
SIMON BRIDGES (National—Tauranga) Link to this
The Legal Assistance (Sustainability) Amendment Bill is a very good illustration of what was wrong with Labour in Government and what is right with National in Government. We see in this bill a Labour Government that wanted and paid for champagne while living on a beer income, that took legal aid costs in this country up 55 percent since 2006, and that left us with a funding gap in this country, if we do not do anything, of $402 million over 5 years. That is many schools, hospitals, and other social services that this country needs. So I say shame on Labour.
National has an approach to make this sustainable, so that the people in need who need legal aid in this country get what they need and we make the legal aid system sustainable for the long term. As we have done in other areas like accident compensation, as we are doing in the early childhood education sector, and as we are doing in welfare, we are making sure that these important social services are sustainable for the long-term betterment of New Zealanders.
We are responsible in this Government. We are not trying to have champagne while living on a beer income; we are trying to cut our cloth to suit the circumstances of this country. In this bill, as I say, we have an illustration of a National Government that is making very good stewardship of what it has, as opposed to a Labour Government that increased all the costs without any clue as to how to pay for them. I commend this bill to the House.
CAROL BEAUMONT (Labour) Link to this
I join colleagues in rising to speak against the Legal Assistance (Sustainability) Amendment Bill. I will comment on some of the points made by the previous speaker, Simon Bridges. Given the level of Government debt that National inherited when it came into power—that is, zero Government debt—I think that for him to say that the previous Labour Government had a champagne lifestyle is somewhat ironic. Particularly ironic are his comments about having to make important services sustainable because of tough economic times, when the Government has cut taxes for the wealthy, which has led to blowing-out debt problems in this country. I honestly think it is absolutely extraordinary that that speaker can get up and make those sorts of comments without flinching.
Labour members oppose this bill. We have concerns about the Government’s overall direction in the justice area. We believe that this bill will inhibit access to justice—that is a very real risk with very significant consequences—and that it has the potential for substantial miscarriages of justice. My colleagues Carmel Sepuloni and Charles Chauvel have outlined that very carefully, as has the Green speaker Kennedy Graham. This Government has one response to issues. That response makes it look like it is reacting to particular problems, but it is actually not about substance; it is all about image. Instead of dealing with the reason why legal costs may be increasing, which is probably that more people are being charged with crimes—and I ask what is underlying that—this Government says that costs are blowing out. It needs to be seen to be doing something, so it will cut access to legal services. Well, that is just unbelievable.
There are other alternatives, and I want to touch on some of those, but first and foremost I say that all members in this House should all be concerned about accessible justice systems. Every citizen of this country has the right to fair legal representation in order to defend themselves, to ensure that they are not unjustly convicted or unjustly imprisoned. That should be something that each and every member of this House is committed to. Concerns about tensions with the New Zealand Bill of Rights Act, which Kennedy Graham outlined, are very serious matters that, again, every member of this House should be worried about.
Essentially, the Legal Assistance (Sustainability) Amendment Bill will introduce higher levels of means testing and limit what can be covered by legal services. If the bill passes its first reading—and a number of parties are saying they will vote against it—it will go to the Justice and Electoral Committee, which I am on. I, along with my colleagues, will certainly be scrutinising the bill very carefully and encouraging people to make submissions on it, because there are some very serious risks with it.
When Labour was in power it introduced a new repayment and debt management scheme, which is where the focus on sustainability for legal aid should be. The focus should be on making sure that we can manage repayment and debt management so that it is sustainable, rather than penalising low and modest-income people who genuinely need a lawyer, in order that people can access legal representation. It is a fundamental part of our justice system that people have the right to representation.
I want to talk about the Public Defence Service as well, because that was initiated under Labour and has been used by the Minister of Justice to justify some of the changes here. We are very concerned that this has been done in a way that is not transparent, not evidence-based, and not looking at the real costs. At the heart of the so-called reform that we are talking about here is the proposal to ramp up the Public Defence Service to take up over 50 percent of criminal legal aid cases in Auckland, Hamilton, and Wellington, and later extending to Tauranga, Hastings, Dunedin, and Christchurch.
As I said, that scheme was initiated by Labour, so it is not that we do not support the Public Defence Service. We believe in a balanced system, and that must continue to include access to legal aid and legal assistance from private lawyers, as well as the Public Defence Service. It needs to have those checks and balances in the system. We are concerned that the Public Defence Service has been looked at as a cheaper system that will be a way of managing costs, but, in fact, nothing could be further from the truth.
Looking at the figures from the Legal Services Agency annual review it seems that, in fact, the average cost of a case under the Public Defence Service was $1,612, whereas the average legal aid bill per case from a private practice lawyer over the same period was $1,343. In other words, the Public Defence Service cost $269 more per case than a private sector lawyer. Labour members support funding the Public Defence Service, as well as resourcing private sector lawyers and bodies like community law centres adequately. If the right balance is struck between each of these, they can provide a useful check against each other in terms of cost and quality. We need to ensure that everybody, irrespective of their income, has access to fair representation—good-quality legal representation—to ensure that they are not unjustly prosecuted, unjustly convicted, or unjustly imprisoned. So it is really important to get this right.
There was reference earlier to England and Wales, and one of the members opposite scoffed at that and said: “Well, we’re in New Zealand.”, but evidence-based lawmaking warrants us looking at what is happening in similar jurisdictions with similar services. The latest review of the Public Defender Service in England and Wales shows that Minister Power’s solution of a vastly expanded Public Defence Service will cost the taxpayer considerably more than it does currently. There needs to be proper transparency around the costs of the Public Defence Service, which is what we are seeing muddled here.
I also agreed with Charles Chauvel when he said that the provisions in the bill are being presented using very comforting terms such as “maintaining access to service” and “balance” and all of that, and I have heard them from members opposite. Charles Chauvel listed a number of very serious offences that would be beyond assistance for offenders earning more than $22,000. Nobody in this House could argue that that is a substantial income. That is an absolutely pitiful level of income and it would be very difficult for someone earning that to afford legal assistance. Some of the examples he gave were various assault cases, offensive weapons cases, and concealing dead babies—very serious offences.
He also talked about—and I thought this was really important to repeat—this bill potentially seeing children missing out on representation, because it requires the parents in those cases to contribute to the cost of independent legal representation for children. We all know, sadly, that in many cases when children get in the middle of legal disputes adults are not doing the best thing for children. For Labour, children are at the centre of what we are doing. We must get it right for our children, and that includes ensuring that all children have independent legal representation, irrespective of the income of their parents.
Other things in this bill that worry me are the ability to further change and restrict by regulation—that is outlined in the provision about placing additional civil matters on the schedule—and the removal of the requirement to index means thresholds so that over time they will become even lower, if you like.
Labour members believe in justice and opportunity for all. We think it is important to get a balanced package, whereas this bill is a short-term response. It is the Government being seen to be doing something, in the same way that it has reacted to things like industry training. The Government is being seen to do something, rather than dealing with the real issues. That was also the case with loan sharks. Again, 3 months out from the election, the Government suddenly needs to be seen to be doing something. It is a short-term response by the Government, having done nothing of substance.
I think there are some very serious matters here. Again, I repeat the concern about tensions with the New Zealand Bill of Rights Act, and I would say that the consequences are important. I acknowledge Rahui Katene for raising the issue about potential consequences for Māori of this legislation going wrong and limiting people’s right to justice. I recently visited Arohata Women’s Prison and was absolutely appalled and shocked to find out that 84 percent of the women in the prison are Māori. There is something wrong in our justice system, and making it hard for people to get good representation will make that worse. We need to be serious about dealing with the causes of crime and with issues like poverty, jobs, and training. Thank you.
KANWALJIT SINGH BAKSHI (National) Link to this
The purpose of the Legal Assistance (Sustainability) Amendment Bill is to amend the Legal Services Act 2011 and other Acts. The bill makes changes to the provision of legal aid services by the Crown, including aid and lawyer for the child and youth advocate services. The legal aid system helps to uphold the principles of, and access to, justice. It helps to uphold equality before the law and natural justice, which helps to build and maintain public confidence in the legal system. This Government, led by the Rt Hon John Key, is committed to ensuring that the legal aid system remains affordable in the future, and that legal aid is available to those who need it, and to the victims of crime and domestic violence. The current system is unsustainable. The cost has increased by 55 percent since 2006. If no action is taken now, then the gap in legal aid funding will grow to $402 million in the next 5 years. It gives me pleasure to commend this bill to the House on its first reading, and I look forward to working on it in the select committee.
LYNNE PILLAY (Labour) Link to this
It will come as no surprise that, along with my colleagues, I too oppose the Legal Services (Sustainability) Amendment Bill. I acknowledge the sterling speeches made by members on this side of the House and also the contribution from the Green Party. It is really sad that a former speaker—and I am not attacking him because I know he was speaking from speech notes—used the term “sustainable”. That seems to be the chant and the cry from National. We know that the definition of sustainable, which is not the definition we would find in the dictionary, in terms of this Government, is just clearly about cuts. Why would I say that? Let me tell you why, Mr Assistant Speaker Roy—well, not just you but I want the whole House to know why I would say that “sustainable” means cuts.
Thank you very much. Paul Quinn is all ears, and usually is when I am speaking. That is very good; he shows respect, so that is really good. When do we hear the term “sustainable” from the Government? We hear it when it is justifying its cuts to ACC. When we see its cuts to ACC, it says that the current form of ACC and services that it provides are simply not sustainable. So what did the Government do? It ruthlessly cut the services to ACC, whether it is relating to victims of sexual abuse, the most vulnerable people, whether it is getting people back to work, whether it is assisting people in terms of avoiding injuries—all of those things were cut because they were unsustainable.
When again do we see the cuts? We see the cuts to KiwiSaver, because it is no longer sustainable. We see the early childhood education cuts. The building blocks for our children’s future have been cut. Why was the Government not just honest, by saying: “We don’t want to put our money in this particular area. We just want to give it in tax cuts to the wealthy.”? No, Government speakers used that term again: “It is not sustainable.”
I acknowledge that Simon Power will be leaving Parliament and I would have thought that his swansong, his final action before he leaves, would have been something really progressive; that it would have been something members on this side of the House would celebrate. We know that Simon Power is certainly by no means amongst the worst on the Government benches. In fact, I would go so far as to say in this House that he would be up there amongst the best of what some would say are a motley lot, but certainly I know that others on the Government side would not say that. He is certainly not someone whom we would expect to use the term “sustainable” to cover what are actually cuts.
When we talk about cuts in terms of legal assistance, it is really serious. All the cuts in the name of sustainability that I spoke about before were serious and have a very dramatic effect on people, whether it is children’s ability to have access to quality early childhood education, whether it is about people’s ability to save, or whether it is about people having their rights and entitlements as were originally designed under ACC. All of those things are really important. But what we are talking about in this case, in the name of sustainability, is cutting access to justice. That is at the very heart of our democracy. If we ask any New Zealander what they hold very dear, it is the ability for anyone, of no matter what means, to have access to justice. Unfortunately, this bill takes New Zealand backwards in that regard.
We note that there is more expectation of community law centres. I acknowledge, as I have many times in this House, the work that community law centres do throughout this country. I do not think anybody would argue, and I do not think there would be any dissent, about the work they do. We see a Minister who wants a greater role for community law centres, but it just cannot happen if those law centres do not get the resources they need to handle more work. We already have the Minister on record, telling community law centres that there will be no more money. We see community law centres—such as the one that I know of in Waitakere, and I know it is the case in most places throughout New Zealand—that operate on the sniff of an oily rag. They provide a fantastic service. This Government is saying that yes, they are doing a great job and it wants them to do more, but, by the way, there is no more funding. So that will not work, either.
Whilst we are talking about this, I see Chris Finlayson in the House and I know he will not be surprised if I relate a couple of things. The Domestic Violence Reform Bill, which was introduced under Labour, is still languishing on the Order Paper, very near the bottom, and I think that is a severe disservice. That is another area where the Minister has let us down. That bill is still on the Order Paper, and instead we have seen some measures that certainly improve conditions for victims of domestic violence, but they have been introduced in a piecemeal way that do not complement each other and do not give complete protection. So that is another area that we are very disappointed in.
I refer to the Sentencing Council. Members on this side of the House know that if under Labour there had been a Sentencing Council, as Labour was very keen to have and as was recommended by the Law Commission, then we would have enhanced sentencing processes in this country and that would be a very good thing. But instead, no, this Government, instead of working on improving the justice system, has rolled back the expansions that Labour did in 2007, making it harder now for people to access lawyers. I remember that when Labour was in Government, we were criticised by National because we were not making enough legal aid available. It seems pretty bizarre that following that, National gets into Government and in the name of sustainability introduces a new repayment and debt management scheme that penalises low and modest income people, in terms of accessing legal aid. How is it that a single person who earns $22,000 a year or an adult on $51,000 a year with two dependants will not, under this regime, have access to legal aid? That is appalling; that is absolutely appalling. There were high-income earners who received $22,000 in tax cuts a few months ago, yet this Government—
David BennettIt is not rubbish. This Government is now saying that $22,000 is ample money for somebody and that they do not need access to any legal assistance. I think that is very, very unfortunate.
I want to talk about the public defence scheme, because, as members of this House will be aware, Labour initiated that trial—initially in Auckland—and we support the concept. But there is a lack of balance in what this Minister is proposing. We are concerned that by cutting access in the name of sustainability to people and then putting more resource into the public defence scheme, which Labour does support, there is going to be an imbalance there. We are hearing information from countries—quite recently there were some reports in terms of England and Wales—that a vastly expanded public defence scheme will cost the taxpayer considerably more than it does currently. What worries me is that if that is the case, then what else is this Government going to do? It has already considerably lowered the threshold for people’s access to legal aid. My concern is that this is going to deprive New Zealanders of their access to justice in this country and that is not a good thing. Thank you.
PAUL QUINN (National) Link to this
There is much on the Legal Assistance (Sustainability) Amendment Bill that I could talk about, but I will take just a short call because, as Opposition members have alluded to, this is a starting point. From here the bill will go to the select committee, and at the select committee we will listen with intensity to any issues that are raised, and consider those in our deliberations, which I am sure will improve this bill.
With those few words, I say that I look forward to receiving this bill before the Justice and Electoral Committee—a very hard-working select committee where the work never stops and the candle never goes out. Thank you.
Hon STEVE CHADWICK (Labour) Link to this
I will take a slightly longer call than Paul Quinn on the Legal Assistance (Sustainability) Amendment Bill, because I think that member summed it up, really, when he said that the select committee will consider this bill at great depth. I am proud to be part of a party that opposes this bill. I think this bill is simply dreadful. I say too that I am sure that in Cabinet there have been vociferous debates about the great reformer of the legal and justice sector, Simon Power, who, until this bill and another one that is now languishing well down on the Order Paper, tended to get most of the reform agenda in law probably pretty well on the button. But we on this side of the House are really opposed to this bill. The reason why is that it inhibits access to justice and then creates an incredible potential for substantial miscarriages of justice.
I know that the Attorney-General, who is very focused on proper access to law and due process, is probably very disheartened by this bill slipping in before the election. He knows, with his great criminal law mind, that lawyers around the country are saying of the great crusader for, and reformist of, legal justice that he has gone too far—that he has gone too far with this bill. It will impose substantial miscarriages of justice, and I am really worried about that. Justice must not be denied to those who are going through the court process. I think even calling this bill the Legal Assistance (Sustainability) Amendment Bill is absolutely a crock. This bill is about capping access to justice and capping access to legal aid because of the cost implications for this Government. It is not about sustainable funding. If it was about sustainable funding, it would have put a focus on the front end. Those who go before the courts need advice on debt management and how to actually manage their finances, rather than to have their access to justice capped.
One of the aspects of this bill that I feel most incensed about is the means test, which will be modified in the case of offences that are not punishable by a maximum imprisonment term of 3 years. The Minister has indicated that this threshold will apply to those people who earn $22,000 a year. Wow! Are people who earn $22,000 a year really going to be the bar, so that people earning above that level can no longer have access to legal aid? That will rule out many people in the communities in which I live and work who find that through access to legal aid they are encouraged to pursue their right to a robust justice appraisal of their case. It is ridiculous to say this means test will encourage legal aid applicants to consider whether they wish to proceed with litigation. For goodness’ sake! People who earn $22,000 a year want to prove that they are not guilty. They cannot afford to engage a lawyer, so they go first to the community law centre. They go there first and say: “What do I do? I have got a charge. I can’t defend myself. I don’t have the means to speak for myself and defend myself, though many do. I must have legal aid to help me.” To put that bar at $22,000 a year for a single adult is offensive, and to put it at $51,000 a year for an adult with two dependants is absolutely outrageous.
The bill talks about affordability, and I understand what National is really saying: that people should do more for less, and that legal aid is a “nice-to-have”, not a “right-to-have”. Justice needs to be seen to be done, and to say that there could be a user-pays element in terms of justice provision is offensive. This is as offensive as user-pays was in the decade when National brought it in for the health system. Now it has a user-pays philosophy for access to justice, and on this side of the House we find that to be absolutely offensive.
I also say that the cut to legal costs by significantly expanding the Public Defence Service at the cost of independent lawyers is a concern. It has pressed a button right around the country. When we go around meeting lawyers, they say that this service is offensive to trained, professional lawyers who are not rorting the system. They can see that a public defender service is a way of saving money. Already we have the example that when such a service was reviewed in Wales and England, the review showed that it actually cost the taxpayer more. So when is the National Government going to look at what are effective justice measures? What are cost-effective justice measures? They are about paying for experienced lawyers who know how to work the system for their client so that justice can be seen to be done. They are usually the most experienced lawyers in the country, not junior lawyers who are learning through taking legal aid cases.
I find this bill absolutely offensive. Family court lawyers are going to find it is offensive. The Government’s introduction of this bill 12 weeks before an election, in the hope that it can just slip it in on the Order Paper and get it off to a select committee so that its members can go out there and say “We members of the National Government are doing great things about reforming the criminal justice process in New Zealand.”, is an embarrassment. It is an embarrassment of riches for us in the Opposition to now go around the legal fraternity and say “Have a look at this bill. See what they are proposing now.” Lawyers are already offended. They are already offended by the Criminal Procedure (Reform and Modernisation) Bill, which I see is another bill of the great reformer, Simon Power, that has slipped down to No. 18 on the Order Paper. Why is it at No. 18? Because National cannot get the numbers needed to get that bill through the House. It does not have the support of the Māori Party, the Greens, or Labour, and National knows that. It has lost on that one, and it will lose on this one.
This is another offensive bill. It is not a little bill; it actually has huge implications for access to justice principles in this country, which we in Labour hold dear. We will be making sure, through our networks of lawyers around the country, that they know about the provisions proposed in this bill. As Mr Quinn said, yes, it will go to the select committee, and I think the Government members will be astonished at the reasonable and outraged response they will get on this bill. Thank you.
A party vote was called for on the question,
That the Legal Assistance (Sustainability) Amendment Bill be now read a first time.
Ayes 62
Noes 58
- New Zealand Labour 42
- Green Party 9
- Māori Party 4
- United Future 1
- Progressive 1
- Independent 1 (Carter C)
Bill read a first time.