Hon ANNE TOLLEY (Minister of Education) Link to this
I move, That the Legal Services Bill be now read a first time. At the appropriate time I intend to move that the Legal Services Bill be referred to the Justice and Electoral Committee, that the committee report finally to the House on or before 21 December 2010, and that the committee have authority to meet at any time while the House is sitting except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
In April 2009 the Minister of Justice announced a fundamental review of the New Zealand legal aid system, led by Dame Margaret Bazley. Dame Margaret’s report, released at the end of last year, identified failings that posed a serious risk to the future of our legal aid system, including the variable quality of legal aid services, inefficiencies created by prescriptive legislation, and serious service delivery issues. The clear message was that it was time for fundamental change.
The Government has already moved swiftly to act on Dame Margaret’s findings, and this bill forms another part of that response. The bill disestablishes the Legal Services Agency and makes the Secretary for Justice responsible for administering the legal aid system. The bill also establishes the Legal Services Commissioner as an independent statutory officer within the Ministry of Justice to ensure independent decision-making in the granting of legal aid and the managing of cases in the Public Defence Service.
This bill places legal aid where it should be: at the centre of the justice system. It will ensure that the legal aid system aligns with other Government initiatives intended to enhance access to justice and support the effective operation of the courts. The Legal Aid Review Panel, which currently reviews the decisions of the Legal Services Agency, will also be replaced by a new, improved Legal Aid Tribunal.
Dame Margaret Bazley praised the quality of many legal aid lawyers. However, she also highlighted serious concerns about the variable quality of legal aid services, and the inability of the current system to deal with poor performance and lawyers who act corruptly. A new quality assurance framework has been developed in consultation with the New Zealand Law Society to ensure that all providers have the skills to do the job assigned to them, and that complaints will be addressed. Current legal aid providers will still be able to provide legal services for a transition period after the new legislation commences. However, within that period they will need to apply for approval under the new quality system if they wish to continue to provide services. Selection committees will make recommendations to the Secretary for Justice regarding the approval of lawyers and other providers, based on criteria and regulations. A review authority appointed by the Minister of Justice will be able to consider unsuccessful applications.
The bill also establishes mechanisms to ensure the continued quality of services after providers are approved. A new Performance Review Committee will consider complaints raised against providers and, where appropriate, will recommend sanctions. The Ministry of Justice will also audit the legal aid services that have been purchased on behalf of New Zealand taxpayers. That auditing may include the disclosure to the auditor of legally privileged information, but the bill contains safeguards so that the legal aid client is not disadvantaged by the disclosure, which can be used only in relation to the audit.
Dame Margaret was also concerned that New Zealand’s prescriptive legislative regime was stifling innovation in service design and delivery. That regime contrasted starkly with the approach taken in comparable countries, such as Canada and Australia, where administering bodies are charged with identifying the best ways to provide services. Flexibility and innovation in service design and delivery are central to this bill. Unlike the current Act, the bill does not specify services that can be provided under the duty solicitors scheme and police detention legal assistance scheme. Instead, those services will operate under a general provision. This approach allows for services to be provided in the way that best meets clients’ needs, and allows services to be responsive to changes in the court system. It will not affect the ability to provide, or monitor the quality of, those services.
The Secretary for Justice also has the flexibility to contract with community law centres to ensure that consistent and high-quality community legal services are provided across the country. In addition, the bill allows for a streamlined process to assess applications for low-cost criminal cases, which will improve cumbersome and expensive administrative procedures. This will mean that lawyers can spend less time filling in forms, and more time providing legal advice.
The bill gives the Ministry of Justice the ability to ensure that providers comply with basic business practices that support the cost-effective delivery of legal aid services. I understand there are currently cases where invoices are submitted a year or more after the work has been done. These business practices are unacceptable.
Dame Margaret’s report also raised a concern about a potential overlap in the funding provided for settlement negotiation matters by the Legal Services Agency and the Office of Treaty Settlements within the Ministry of Justice. Under the bill, legal aid funding will no longer be available for settlement negotiation matters. Instead, funding will be transferred to the Office of Treaty Settlements to ensure that claimants continue to receive appropriate assistance for each step of the negotiations process.
The Legal Services Bill will provide the framework for a new, more effective legal aid system in which New Zealanders can have confidence. I commend this bill to the House.
CHARLES CHAUVEL (Labour) Link to this
I intend to move that all the words in the Minister’s referral motion appearing after the word “Committee” be deleted .
On that issue, there is simply no justification for a referral motion that was phrased in the terms the Minister of Education read out in her prepared speech. If the Minister, on behalf of the Minister of Justice, has foreshadowed that we are in for yet more meaningless urgency on bills that do not merit it, then members on this side of the House protest greatly about that. I think that other members ought to be concerned, as well, because it is an abuse of the processes of this House to deal with issues as serious as the ones we are dealing with in this session under urgency, without proper justification. Although the Minister clearly foreshadowed the use of urgency, she did not deign to tell the House why there might be the need for urgency in respect of a bill like this one, the Legal Services Bill, or in respect of other bills, for the rest of the year between now and the foreshadowed deadline for reporting back.
Paul QuinnWell, Mr Quinn has interjected with one of his learned interjections again. He says that taxpayers want us to work. Some members on this side of the House work pretty hard, I tell Mr Quinn, and we are prepared to do that without the need—
All members on this side—some members of the House and all on this side of the House—work hard. We do not need an urgency motion to tell us that that is what we should be doing. It would be helpful if members on that side actually worked out that doing the business of this House properly did not involve urgency, but involved a considered consideration of legislation. That is something they seem to have forgotten, because this Government is using urgency more often than any other Government for many, many years. It is just not justified. If we look at the programme, we see there is no justification for it. It is an outrage, especially when we should be doing our job. The taxpayer will not thank Mr Quinn if we are back in here in a year’s time amending shoddy legislation that had been rammed through this House under urgency, and—mark my words—if those members on that side of the House continue as they are, then that is what they will see.
Mr Quinn says that the Opposition agreed to the urgency motion. I can tell him and his colleagues that there will be no more agreement to such motions if the sort of motion we have just seen from the Minister of Education continues.
In the prepared speech that the Minister read out, she referred to the report of Dame Margaret Bazley. Some aspects of that report are worth having a good look at. It found that there were some serious problems with the current system, which was set up in 1991 by the then National Government, when Parliament passed the Legal Services Act 1991. That Act merged the civil and criminal justice legal aid schemes. Some members opposite know a lot about the detail of that matter. I look at Mr Borrows in particular, and it will be interesting to hear his contribution on the bill.
Clearly there are some problems with the current system. There are problems in defining the respective relationship between the Legal Services Agency and the Law Society. It has been suggested in the report and elsewhere that the fact that the legal profession asserts control over the legal aid system through the Law Society creates a real risk of there being no independent oversight. Even though the Legal Services Agency can, at the moment, provide some oversight, it is said that it does not have the necessary means in all cases to remove legal aid providers who are found to be performing poorly.
The other salient structural criticism in the report was some highlighting of how legislation makes the market for legal aid arguably more inefficient than it needs to be. One of the instances cited in the report was that the current law has inflexible provisions for procurement, which makes the Legal Services Agency’s processes overly bureaucratic and stops it from procuring services in the most efficient way. An example is the lack of flexibility to choose between the Public Defence Service, a community law centre, and legal aid. That ought to be an easy choice for somebody in need of legal representation. When public money is at hand, one would think there would be room for the relevant authorities to use it as efficiently as possible.
Dame Margaret’s report made a series of other recommendations, and those included raising the barriers to entry so that it was absolutely clear that lawyers working in the legal aid area were absolutely competent and equipped with the requisite integrity. That is obviously something that nobody could argue with. It has been recommended that a mechanism be put in place for the swift ejection of lawyers who do not satisfy those criteria.
There is a recommendation that there be a clarification on the regulatory side, as between the legal services, authorities, and the New Zealand Law Society, and there be an option to use publicly funded services such as the Public Defence Service, when those are the most efficient option on the table. That option is not available under the current arrangements, but it ought to be. It is good to see some of those matters picked up in the version of the bill that has been tabled for first reading.
Some important changes are intended to the administration of legal services. The administration of publicly funded services is to be transferred from the Legal Services Agency to the Ministry of Justice. Similarly the Legal Aid Review Panel will be disbanded, its function to be carried out by the Legal Aid Tribunal within the Ministry of Justice. The position of Legal Services Commissioner will be created to have an oversight of the operation of the system—an independent eye cast over the legal aid system to make it more accountable.
Labour will support this bill being referred to a select committee, because, as far as we can tell, those recommendations are good, and the bill implements some good and sound policy. But we have some concerns. I have already dealt with the first concern, which is the fact that we are dealing with this legislation under urgency, and that the Minister has clearly foreshadowed that the Government intends further unmerited urgency throughout the year.
The second concern relates to Minister Simon Power’s conduct in the wake of his receipt of Dame Margaret’s report, and some of the allegations that were made in it. I know that my colleague Lianne Dalziel dealt with this matter publicly at the time. She and I also went up to meet members of the Manukau bar, many of whom rely in large part on legal aid to provide access to justice for their clients. They are, by overwhelming majority, reputable lawyers who work hard in unforgiving situations to provide access to justice when it is needed by ordinary New Zealanders. They are to be praised for the hard work, dedication, and integrity that they exhibit.
Unfortunately there were some obviously quite inaccurate allegations in Dame Margaret’s report. She said that up to 80 percent of the bar may be abusing the legal aid system out at Manukau. Clearly that is not right. We have met many of those providers and, as I say, they are good people who deserve better than that sort of allegation. They deserved for Simon Power to have refuted that allegation, rather than simply accepting the report in the way that he did. Surely the principles of fairness would have required that.
We have some other concerns about the substance of the bill. The area of legal aid in employment disputes needs further attention. Frankly, we have some misgivings about whether the wider aims of the bill will be able to be achieved in the wider context of other legislation already passed in this Parliament and in this session. If the whole purpose of the bill is to curb the out-of-control cost of legal aid in New Zealand, as it is alleged to exist, which is particularly high in the criminal area, the Government cannot on the one hand try to achieve that and, on the other hand, pass the completely misguided “three strikes” legislation, which will work directly against that objective. Because of the higher prison sentences that judges will have no option but to bestow in criminal cases under the “three strikes” legislation, pleas of not guilty have been positively incentivised. That will inevitably lead to the prolonging of trials and will place extra cost-pressure on the justice system. If the Government had any regard for proper policies working comprehensively, let alone fairness, that issue would have been looked at, instead of using the piecemeal approach that has been adopted.
We place real value on having a well-functioning legal aid system. It is essential that everybody has proper access to justice, and that such access be one of the rights that are guaranteed by the State. We will support the bill going to a select committee, but we have the reservations that I have stated in my speech.
CHESTER BORROWS
Hon Darren HughesI will not be voting for Charles Chauvel’s amendment to the referral motion. I think it is important in discussing his amendment to remember why this House has gone into urgency on a number of occasions recently, and also to have a little bit of a look at the history. This Government has been criticised on a number of occasions for taking a long time to process legislation introduced by the previous Government, only to find that the legislation—for instance the Children, Young Persons, and their Families Amendment Bill (No. 6), which was introduced just a couple of weeks before the House rose—was never taken anywhere during the course of the last Parliament even though the preparation had been done.
We had another example of that this afternoon, when we heard the Hon George Hawkins refer to his Sale of Liquor (Objections to Applications) Amendment Bill, which is currently before the Social Services Committee. It was introduced in October 2007 but went nowhere, right through until the election in November 2008. With the support of members opposite it had been stalled, pending the process initially of the previous Government’s own bill on the sale of liquor, which, again, that Government never processed during the course of its Parliament. That bill goes hand in hand with bills on other domestic violence matters that were not progressed during the previous Parliament, either. We heard recently about the Hon Lianne Dalziel’s bill, which she spoke about and asked questions about yesterday; that bill was introduced only 2 weeks before the last election, yet somehow there is some huge criticism of this Government.
The other reason this Government has taken urgency on a number of occasions over the term of this Parliament is that on a number of members’ days when members opposite have had member’s bills coming up, they have postponed them, meaning that if urgency was not called we would have “pulled the pin” at 5 o’clock and knocked off for the rest of the night, because those are the conventions of this House. If people on the opposite side of the House wanted to work as hard as they want the public to think they are working, then they would maintain the stance they took by putting in the bids they did for those member’s bills. The reason we are voting against Mr Chauvel’s amendment is that we want to see these matters progressed through the House in a timely manner, and not being held up by members opposite mucking around with the system.
Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this
I too was caught by surprise at the brevity of the contribution of the previous speaker, Chester Borrows, on the Legal Services Bill. I was looking forward to the opportunity to engage with that member in particular, because unfortunately we did not have a justice Minister to present the motion in favour of the introduction of this bill. Although we support the bill’s referral to the Justice and Electoral Committee, there are some challenging issues around this particular habit of the Government. I think this was the comment that my colleague Charles Chauvel was making. He simply made reference to the fact that this was occurring under urgency.
The point that Charles Chauvel was making was to ask why on earth the select committee has to have these obligations thrown on it to meet outside the normal sitting times for select committees, thereby missing out on opportunities to participate in debates in the House. We had the ridiculous situation recently where I was sitting on the Justice and Electoral Committee and an electoral bill was before the House. That meant that it was impossible for those who have a particular interest in speaking on the bill to do both jobs at the same time. I think that was a very reasonable point for my colleague to make. If we are going to have requirements on select committees to sit for extended hours, either during the course of the sitting of the House or on Fridays as well, then it really is helpful if members of the Opposition are consulted. The only reason that I ever get consulted on the Commerce Committee is because I am the chair of that committee and it would be rather foolish of the Government to move a motion like that without telling me about it first, although the Government did manage to tell me about it only 5 minutes before it moved the motion in support of such a referral on one occasion. But I have received undertakings that that will not happen as a matter of course.
It would be useful if we were told that this was an approach that the Government was trying to take on this particular matter. There is no need for it. The reason that there is no need for it is that, as I said, we are supporting the reference of the Legal Services Bill to the Justice and Electoral Committee. We genuinely want to engage in the process around this. I made a submission to the Bazley review on legal aid. There are not many people in this House who actually did that, but I did because I believe it is really important that we engage on something as fundamentally important as this is—that is, access to justice. It is an important component of access to justice and that is why I wanted to make a submission.
I was pleased with some elements of what Dame Margaret came up with, but I was disappointed with the allegations in relation to up to 200 lawyers in Auckland and South Auckland—it was identified that 80 percent of the people were working in the Manukau area—and I found that completely unacceptable. I have met with many of those lawyers. Charles Chauvel and I went and met with them. The people whom we talked to were not people who were afraid to raise concerns about those they felt were taking advantage of the system, but they felt that their concerns fell on deaf ears. For those deaf ears who failed to listen to them, well, the consequences are the Legal Services Bill and the disestablishment of the Legal Services Agency. I think it is really important to note, if we think about where the complaints were made, that if lawyers complained to the Legal Services Agency about the nature of concerns they have about other lawyers ripping off the system and nothing happens as a result, then this is what occurs. I believe that some of the proposals within the legislation are perfectly sensible, and, therefore, we need to take some action.
I make the point that demand for legal aid has been increasing over time. But there are two particular components of the legal aid system where we see marked increases in their requirements and they are in the criminal jurisdiction and in the Waitangi Tribunal jurisdiction. They are the two that have the most increases. I have a personal view, and I did express this in my submission to Dame Margaret, that the legal aid component of the Waitangi Tribunal work should be funded separately through Vote Justice. It should not be seen as a cost to the legal aid system because it gives an impression of a total blowout in expenditure, which is not justified when we think of what the legal aid system is there for in terms of both the criminal and the civil jurisdiction.
Hon LIANNE DALZIEL Link to this
I know that that member likes to interject really loudly from a seat that does not belong to him. I know that he has moved up close so that he can be close to me to do that. I am getting used to it, but ignoring such a loud voice is quite difficult. When I do not find it so loud, then I find it very easy to ignore everything that he says. The point I was making is that this is not something that relates to anything other than the public perception of the blowout in legal aid. A big chunk of that blowout relates to the Waitangi Tribunal’s jurisdiction and I believe that should be funded separately. It would be useful from a public perception point of view to get a clear understanding of what belongs to civil legal aid and what belongs to criminal legal aid.
There is an issue around the questions that have been raised in the regulatory impact statement. In the problem definition—
Hon LIANNE DALZIEL Link to this
I am finding it very difficult as I am constantly being harangued by the other side. Maybe I could look the other way, but I am trying to address the Speaker. The options that were put up in the regulatory impact statement relate to a universal system of public provision of legal aid services as implemented in some of the Auckland courts. What they said was that this could generate significant economies of scale and be a low-cost option. But—and here is the phrase; here is the rub—the following statement is typical. I almost thought that this was a Treasury regulatory impact statement because it sounded like Treasury words. But this comes from the Ministry of Justice, and I think our spokesperson on the State sector should be worried about this, because it states “Public provision has, however, only been tested in large communities and in criminal cases. As well, universal public provision creates a risk of an inefficient bureaucracy over time, due to the absence of any competition.” Well, I am sorry, but one can understand why I thought that came from Treasury.
The point I make is this: I went to the Croydon Family Justice Centre in London in the UK last year and one of the things that I saw was that it was—I am finding this difficult; maybe those two members who are talking might like to take over—the Croydon Family Justice Centre itself that contracted in the outside legal work to work with the families, and if the families did not like working with the particular lawyers, then those contracts came to an end. That was a much better system, I thought, of bringing the local community into the decision making on who will be getting that range of work, and it is all tied up with a properly funded legal aid system. It is the best of all worlds. There are the economies of scale that the centralised work can provide but there is also that outside expert input from the private sector from time to time, as is required.
I think that this bill has a considerable amount of work to be done on it. I do not agree with the way the Government has tried to play around with the sitting arrangements of a select committee without consulting with the Opposition, but we will support the bill’s referral to the select committee.
GARETH HUGHES (Green) Link to this
Kia ora, Mr Assistant Speaker Roy. We acknowledge some of the concerns raised by the Labour Party, and we would also have appreciated some consultation on the select committee process, but in looking at this Legal Services Bill we believe we have considered the legislation carefully, and we do not feel confident that its provisions provide sufficient protection for those in need of legal aid from undue interference by the Government. We also do not agree with many of the findings in Dame Margaret Bazley’s report, on which this legislation is based. Therefore, we will not be voting to support this bill at its first reading, but we look forward to seeking further information during the select committee process.
The legal aid system, as described in the regulatory impact statement, is designed to assist those who cannot afford legal representation when they need it. The legal aid system helps to uphold the principles of, and access to, justice, equality before the law, and natural justice, which helps to build and maintain public confidence in the legal system. The regulatory impact statement notes that there is a clear relationship between justice sector outcomes and the provision of publicly funded legal aid services. So the provision of publicly funded legal aid is critical, and it must be undertaken with the greatest care for natural justice principles.
The Bazley review came out of concerns raised about the legal aid system, including concerns based on rising costs, problems with access, and the impact of the system on the courts. Her report notes that the Legal Services Agency was established to administer the legal aid system, to maintain a list of lawyers who could provide legally aided services, and to grant legal aid. As a Crown agent, the Legal Services Agency performs these functions at arm’s length from the Government. That is important, because it avoids any conflicts of interest that the Government may have when funding legal aid for people who are involved in litigation with the Crown, such as when the Crown is prosecuting a crime or when people are suing the Crown. We believe that this is an extremely important principle to uphold. It is not appropriate for the Crown to be the decision maker on what funding is made available to those who are litigating against the Crown.
The report notes: “The new tribunal should have an explicit requirement to have regard to both access to justice considerations and responsible expenditure of public monies. To this end, the Chair of the new tribunal should not be a lawyer.” I find it incredible that the Bazley report should recommend that the chair of any new tribunal should not be a lawyer. This highlights the entire tone of the Bazley review—that lawyers cannot be trusted with public moneys. I wonder whether John Key should perhaps be watching out for Chris Finlayson.
Reading through the legislation, it seems to me that the recommendation to deny anyone from the legal profession the chance to head the tribunal has been dropped, and that is a good thing. However, the Green Party is an evidence-based party, and we see that this legislation will scrap the current Legal Aid Review Panel. We have not seen any evidence that that panel has not been doing a good job, but some snide comments were made in the Bazley report, and—poof—the panel is gone. I understand that the staff of the Legal Services Agency will be carrying on, but it will not be the same for those at the review panel. Once this legislation is enacted, they will be gone. That topic needs to be addressed by the Minister of Justice. I ask what the Legal Aid Review Panel did wrong, and why it is going.
It is also worth noting that Ms Bazley’s report was concerned that the Legal Aid Review Panel’s funding was through the Legal Services Agency. Now, both organisations will fall under the purview of the Ministry of Justice, and I am not sure how that will assist. We already have a breach of this principle when it comes to the Treaty settlement process. That process is clearly flawed because in large part the accused party determines the funding for the aggrieved party. So it is with dismay that we see that the recommendation from the Bazley report states that because the legal aid system is essential to the operation of the justice system, it is recommended that the administration of the legal aid system and the procurement of legal aid services be centralised and kept close to the Crown.
Throughout the Bazley report, which was the catalyst for the legislation in front of us today, there is an implied suggestion that lawyers cannot be trusted with the public’s money. Should applicants be denied legal aid, they can currently apply to the Legal Aid Review Panel to look at the Legal Services Agency’s decision-making process. But Ms Bazley in her report suggests scrapping the Legal Aid Review Panel—which is what this legislation does—and replacing it with a tribunal that will work from and within the Ministry of Justice. This is what Ms Bazley stated about the prospect of a lawyer heading a tribunal that will be assessing legal aid decisions: “In reviewing decisions of the [Legal Services Agency], the new tribunal should have regard to both access to justice considerations and responsible expenditure of public monies. I am not confident that a Chair drawn from the legal profession will necessarily achieve the appropriate balance between these considerations. Therefore, I consider that the opportunity should be taken to appoint a non-lawyer as the Chair of the new tribunal.” We cannot agree to this view, and we believe that it undermines the legitimate concerns raised within the report.
We do not agree that the issues raised in the report about the operation of legal services are best remedied by bringing the agency under the purview of the Crown, and thereby breaching one of the principles of natural justice. The structural solution being proposed in the wake of the report will end the independence of the Legal Aid Services Agency, whatever its faults may be, and fold it back into the Ministry of Justice. There will be genuine accusations of political interference in the decisions to grant or to refuse legal aid applications. That will erode public confidence in the legal aid system, and it could undermine access to legal aid by members of the public who are concerned about privacy and political interference.
We are also very concerned that the principles of natural justice are being undermined in an attempt to make administrative savings. Although some of these concerns could be remedied in the select committee process—and we will welcome that discussion—we are not satisfied that this bill, as it is, promotes and protects public access to justice, builds confidence in the legal profession, or meets the precepts of natural justice. We will be opposing this bill.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this
Tēnā koe, Mr Assistant Speaker Roy. Kia ora tātou katoa e te Whare.
Kia ora, I say to Mr Quinn. Tomorrow marks the occasion of 20 years since the New Zealand Bill of Rights Act landed on the New Zealand judiciary. That is important, because the New Zealand Bill of Rights Act, together with the 1993 Human Rights Act and the nation’s founding document, Te Tiriti o Waitangi, provides the framework for a strong and evolving constitutional discussion, which the Māori Party will proudly lead over the next few years. Alongside all that, of course, the Māori Party is also proud to claim responsibility for this nation’s signing up to the United Nations Declaration on the Rights of Indigenous Peoples, providing Aotearoa with a set of international benchmarks regarding indigenous people and the law. So as we come to the Legal Services Bill, the Māori Party does so looking for the same positive reform that Dame Margaret Bazley noted in her report highlighting a range of deficiencies within the legal aid system, including the poor quality of legal aid services and serious service delivery issues.
Dame Margaret made some far-reaching recommendations, including the following: ensuring aid is available equally across the country, taking into account geographical, social, cultural, and economic factors; extending social services into the courts to reduce the social deprivation of court users and their families and whānau; and creating a better focus on legal needs for Māori and Pacific peoples and on the barriers they face. Dame Margaret also made the point that if the legal aid system fails Māori, then the system fails altogether.
The stories of delays and deferrals are legendary. I note the situation of 19 people caught in the 15 October police terrorism raids on Tūhoe, whose applications for legal aid were not even looked at by the Legal Services Agency for 4 months. All Māori electorate MPs know of people who have made complaints about incompetent and corrupt lawyers dragging out the legal process to maximise their fees or recommending that their clients plead guilty because they are too lazy to do the necessary groundwork to defend their Māori clients properly. So we welcome the proposal in this bill to have lawyers sit competency tests before going on the legal aid roster.
Mind you, I note that comments about bad lawyers at the Manukau court, in particular, need to be balanced alongside the reality of the huge workload and woefully inadequate resources provided for the high numbers of defendants appearing before that court. I quote from an email we received just after the Bazley report was released: “There’s no doubt that the Manukau Court is known as one of the most difficult courts in the land to work in. This does not mean however that it attracts the worst kind of lawyer. Quite the reverse. One has to be very dedicated to work in this court. Many of our finest lawyers have worked, and continue to work, in this court—Karina Williams and Eddie Paul to name just two. I was appalled to find that some of Ms Bazley’s findings were based on ‘anecdotal evidence’. In common terms this means gossip. There is so much work in the Manukau Court that I can’t see why any lawyer would even need to be ‘gaming the system’ as she puts it. The majority of hard-working lawyers in the Manukau Court don’t need this kind of publicity.” The Māori Party also supports the right of all people to have access to justice, as proposed in this bill. Indeed, the denial of that access to justice was one of the main reasons behind Te Hīkoi Takutai Moana, the birth of the Māori Party, and the drive to repeal the Foreshore and Seabed Act 2004.
One major point of concern that I have comes from a meeting held last year when Māori tribal and legal leaders expressed their concern to the Minister of Justice about the number of lawyers appearing before the Waitangi Tribunal and the consequential loss of tribal control to lawyers acting on their behalf. It was proposed that the Legal Services Agency and the Waitangi Tribunal develop options that retain the benefit of legal aid, but place controls on the number of lawyers, the cost of lawyers, and the domination of lawyers over Māori issues. However, I note that much of that will be blocked by this bill denying legal aid to those negotiating settlements with the Crown. In our view, that simply adds another problem, rather than dealing with the original one. We do not support proposals to deny legal aid to those negotiating Treaty settlements.
My gut feeling is to not support this bill. Although it addresses general issues that impact on Māori, it does little to address the specific needs of Māori. Given the number of Māori appearing before the courts, I note that there is nothing in this bill to support the reopening of the Māori Legal Service, either. However, the Māori Party will support this bill in its first reading to allow time for groups and individuals who have a stake in this matter, including Māori legal practitioners, Māori involved in the legal aid process, people who have worked for the Māori Legal Service in the past, Māori who have been ripped off by legal aid koretake in the past, Māori involved in Treaty settlements, Māori social service providers, and others, to tell the select committee what they think of this bill and how they think it might be changed to improve services to Māori in the future. Our vote beyond the first reading will be determined by what we hear through the select committee process. Kia ora tātou katoa.
SIMON BRIDGES (National—Tauranga) Link to this
Every defendant in the summary jurisdiction and every accused in the indictable jurisdiction has the absolute right to counsel and, as I am about to discuss, the right to competent counsel who know that the system is not for them but for the players—the defendants and the victims—in the system.
Firstly, I say to Hone Harawira, who is inclined to not necessarily support the Legal Services Bill, that this bill, if it is for anyone, is for those Māori he was talking about, who at the moment, yes, do go to prison in disproportionate numbers but who have the most to gain of anyone from having competent counsel in the courts in this country. This bill is very important. As I said, everyone has a right to counsel, but they need to be competent.
I am the first to accept that the vast majority of criminal lawyers in this country are competent, but there are some—they have been referred to as car-boot lawyers and various other sorts—who are incompetent. I have seen them—
I will not name them; they may vote for me! I have seen lawyers who have had a law degree for 30 years and have not been on a refresher course with the Law Society for 30 years. There is a perception out there that criminal law is easy. Actually, it is one of the most difficult areas of law, in my opinion, to practise in. In the last couple of years this House has passed about 12 or 13 statutes that have made wide-ranging changes to the arena of criminal law. Those things need to be kept up with. They are not simple. If there is anybody who needs to be on top of his or her game in the practise of law, it is the criminal advocate who literally has a person’s life on the line. As we put up the penalties—and I think it is right to do so—with bills like our “three strikes” legislation—
—the stakes increase. David Garrett had something to do with it; I am not sure what.
The other thing that is important when we are talking about counsel is a system that is not just for their benefit but is also, as I said, for the benefit of the real players—the victims and the accused. Yes, there has been gaming of our criminal justice system. Dame Margaret Bazley talked about the delaying of pleas to maximise legal aid. Certainly, I have seen cases where guilty pleas have been put in on the morning of trial when it has been quite clear that the pleas were coming for a long time. By doing that, defence counsel is able to claim maximum preparation for the trial as well as obtain the guilty plea. There are top-up payments and retainers from clients. Despite counsel getting their legal aid, which is all they are legally entitled to, they ask for more from the client. That is a despicable practice, which Dame Margaret Bazley found evidence of.
I have seen and I am aware of defence counsel who come along ill-prepared for cases—again, they are very much in the minority—and the first they learn of a case in a jury trial, where the stakes are high, is what they pick up from Crown counsel when they open the case. That is not good enough. This bill addresses those concerns and will do something very real about it. The bill creates various new agencies and tribunals to ensure that there are higher standards. I commend this bill, at its first reading, to the House.
LYNNE PILLAY (Labour) Link to this
I start by acknowledging all the good lawyers out there who undertake legal aid and represent—
No, I do not mean Simon Bridges, whom that member has pointed out. I will return to talking about the lawyers who have contributed much to the criminal justice system. As I think Simon Bridges mentioned in one part of his speech, the lawyers causing the problems that have been identified by the review are very much in the minority. But if we look at the criminal justice system and uphold very strongly the principle of access to justice, no matter how small the minority is, we can see that very serious misdemeanours have happened.
If we look very briefly at the review, we see that one of its findings was that some 200 lawyers were seen to be rorting the system. Certainly, that matter should be of great concern not only to all members of this House but also to the people who use the system. There were top-up payments from clients over and above what the Legal Services Agency had provided. That is absolutely abhorrent. Access to legal aid is very much designed for the people who are simply not able to afford access to justice. That is the whole principle of the system, so to demand a top-up payment is totally unacceptable.
There was some concern that complaints made to the Law Society about dishonest behaviour were not acted upon, and certainly that should not have happened. Unpreparedness was also an issue. Legal aid lawyers have been turning up to represent clients and they have not been prepared. That is unacceptable. A number of other issues were identified. In particular, there was no control over the legal aid system in terms of the legal profession and, effectively, no independent oversight. That is of real concern.
I hasten to add that those concerns were in the minority, but they were still concerns. If we look at our legal aid system, we see that everyone in New Zealand wants to see the best bang for the taxpayer buck in that investment, and to have that system rorted in any way, shape, or form is not acceptable.
I note that Dame Margaret Bazley’s recommendations included raising the barrier for entry into the legal aid system. Only lawyers with competence and integrity should be able to work in legal aid. That is a given. It is really important. Where it is seen that lawyers are incompetent or dishonest, or both, and where there is concern about the work that they are doing—
—or all of the above, as the member said—there is a mechanism under this bill whereby those lawyers will be ejected from the legal aid system. They will not continue to underperform or, at worst, act dishonestly.
The bill also clarifies the roles and responsibilities of the two regulators with an interest in this area: the Legal Services Agency and the New Zealand Law Society. Publicly provided services, like the Public Defence Service, should be used where there are sufficient case volumes to make them an efficient option. This would include places like Auckland, Wellington, and Christchurch, and areas where there are particular problems with quality, such as Palmerston North. My colleague Ian Lees-Galloway, the very, very competent member for Palmerston North, has shown concern about the services in those areas, and he is very pleased that there will be a lift in the quality of the services in Palmerston North. It was also recommended that there be a streamlined eligibility assessment model for low-cost criminal cases.
All in all, very common-sense recommendations were made. If we look at the background, we see that criminal legal aid was established in 1912 and civil legal aid—
That was a nonsensical thing to say and it did distract me for a moment. Civil legal aid came into effect in 1969. That interjection could have come in now, actually—1969 would have been far more acceptable. Our current legal aid system dates from 1991, when the Legal Services Act was passed.
Certainly, Labour believes that the Legal Services Bill is very timely. It is a chance to overhaul the legal aid system. The reforms are positive, particularly the emphasis on the public defender system and also on community law centres. I will spend a little time acknowledging the tremendous work done by community law centres in our communities. Often in our select committees we have submissions from community law centres on legal aid matters and many other issues. I must say that their focus is very much on access to justice and on getting the best deal for all—the importance of the many, not just the few, having access to justice. The constructive submissions that community law centres have brought to many select committees focus not so much on feathering their own nests or on their own personal remuneration but on providing the best justice system for all.
I acknowledge the work of community law centres and, particularly, the fantastic work of the community law centre in Waitakere. My electorate office and many other west Auckland MPs’ offices often refer people to community law centres for advice. The feedback is that people receive very sound advice that enables them to go further with their concerns, or, in many cases, they receive constructive advice to the effect that they should not go further, and that prevents them from going down the line of very costly litigation. Community law centres should always be publicly funded. Labour is very, very happy about the new emphasis being placed on community law centres playing a greater part within the system.
Labour believes that the bill is necessary to restore taxpayer confidence in legal aid, which is a vital part of our justice system. Labour is not saying that this bill, in its current form, is the perfect bill. That is certainly not the case, but we believe that the bill should go to the Justice and Electoral Committee. We look forward to hearing the views of New Zealanders. I am a member of that select committee, and during that process we will hear submissions not only from community law centres and the Law Society but also from people who have been part of the legal aid system and from lay people who are not necessarily lawyers but have an interest in seeing justice served. We will be very, very pleased about that.
Labour is also pleased that the Public Defence Service will be expanded. I acknowledge Phil Goff, our leader, who as Minister of Justice at that time launched the Public Defence Service. Without further ado, I commend this bill to the House. Thank you very much.
DAVID GARRETT (ACT) Link to this
The ACT Party supports the Legal Services Bill. As members of the House will know, I always enjoy being able to agree with members on the other side of the House. I commend the previous speaker, Lynne Pillay, quite genuinely and sincerely for her speech. A great deal of what Lynne Pillay said was excellent stuff. I put on record that the ACT Party too has a commitment to the right of people to be legally represented. I see perhaps a touch of incredulity on your face, Mr Assistant Speaker Roy, that I am agreeing with Lynne Pillay, but it is true.
The member talked about the valuable work of community law centres. I—and, I suspect, many other lawyers in the House—have worked at community law centres pro bono. I have never been keen on using my skills to help criminals, so one of the things I did was work in a community law centre. Those centres provide a very valuable service for those at the bottom of the heap, and frequently people who have a number of different problems, other than an inability to pay, go there. They often just need someone to listen to them. I remember a man some years back who wanted to sue Bill Birch for $25 million for some perceived slights, which, of course, was totally unrealistic. But he felt he was listened to and treated with dignity. So community law centres play a very valuable role.
It would be wrong to say that all, or even most, legal aid lawyers are at the bottom of the barrel—as Simon Bridges said, criminal law is a skilled branch of the profession—but it would be equally wrong and naive to say they are all top-notch. If we go to any district court in the country—less so in the provinces, I have to say, but any metropolitan district court—we see lawyers whose suits need a clean; whose hems are clipped up by staples; who have not seen, as Simon Bridges said, the inside of a refresher course for a very long time; and who are not up to date with the changes in the law. That is not right, primarily for the defendant; it is also not right for the taxpayer.
Here, sadly, is where I have to diverge from agreement with Ms Pillay. Unlike the Labour Party I do not agree, and ACT does not agree, that anyone is entitled to endless legal aid. We live in a society where resources are rationed to some extent. Rationing of resources frequently happens with older people. My mother died a wee while ago. She probably could have been saved with a pacemaker, but she was 90. The hospital authorities gently told her that she was not a candidate for that surgery, obviously because of her age, even if she was strong enough to have survived it. So we reluctantly accept some rationing in the health sector, as they say these days. Everything is a “sector”, is it not? But why should we not accept that there should be some rationing in legal aid?
Ms Pillay touched on civil legal aid. As a practising lawyer, it used to distress me very greatly to often meet people who had very real and genuine civil claims, but unfortunately they were middle class. They were not poor enough to get legal aid—the very small amount of civil legal aid available—and they were not wealthy enough to pursue the case themselves, even if we did the work at very discounted fees, as we often did. So a whole heap of people go with an unmet need, which is the phrase these days. I do not know why we had to invent all these phrases, but that is it. Those people had unmet needs because there simply is not the money.
Of that pool of $160 million or something allocated to legal aid every year, the vast majority of it goes to criminal legal aid. I have just addressed the Sensible Sentencing Trust annual victims’ conference. I looked around that hall, recognised many faces, and knew their stories. Many of those people have been victimised by criminals who have appeared 100 times in court, and 100 times the taxpayer has picked up the tab for their defence. Is that sensible? We tell old people like my mother that they could potentially be saved by a pacemaker, but they are 90 years old. Although they did not say it to my mother, they were essentially saying that that money could be better spent at the neonatal unit. In the ACT Party, we say that everyone is entitled to a defence once, perhaps twice, and perhaps even three times.
Indeed, I say to Ms Pillay. I would like the members on the other side of the House to tell me by interjection, if they wish, and put on the record whether Labour really believes that someone like William Bell should be entitled taxpayer-funded defence 100 times. Mr Robertson does not have to shake his head. I do not need to use his name; I could use many names that member does not know. I ask whether Labour believes that a career criminal should be entitled to endless largesse from the taxpayer. Well, the ACT Party does not. To paraphrase Lady Bracknell, just about anyone can have the misfortune of being wrongly accused once—by circumstance, by bad luck, or rarely, perhaps, by corruption. It may happen twice, but it would not happen 54 times. So it is perfectly reasonable to look at whether people should be entitled to endless legal aid.
This is a good bill. It makes good changes. But I think we need to look at the whole system, and perhaps—Ms Pillay said it as a joke—whether “three strikes” should be extended to the legal aid system. People are entitled to a full and complete defence by a qualified and competent lawyer of their choice three times. But if someone is unlucky enough to be wrongly accused four times, then perhaps that person should be on their own. Thank you.
KANWALJIT SINGH BAKSHI (National) Link to this
I will start my contribution with an old saying: “Ninety-eight percent of lawyers give the rest of them a bad name.” But the Legal Services Bill seeks to recognise the importance of preserving access to justice in spite of that 98 percent. In fact, very few lawyers sail close to the wind when representing their clients. The National Government wants to make sure that all New Zealanders have access to a high-quality legal system. The Government also wants to ensure that taxpayers’ money is well spent. The review undertaken by Dame Margaret Bazley in 2009 identified many challenges being faced by our legal aid system. That review also identifies that there are inadequate mechanisms to ensure quality and serious delivery of services.
The Legal Services Bill will provide an effective legal aid system that supports the wider justice sector. It will create a system in which taxpayers can have confidence and will also provide high-quality legal service by capable professionals. The legal aid service is very vital to our most vulnerable citizens, and the changes made will make proud the users and the providers. This bill shows that the Minister of Justice, Simon Power, has acted quickly to address the issues identified by Dame Margaret’s report. We are also confident this package of challenge will help build more public confidence that the legal aid system is providing quality service for those who need it, while giving taxpayers value for money. I support this bill on its first reading.
JACINDA ARDERN (Labour) Link to this
I am pleased to take a call on the Legal Services Bill. Thank you, Mr Assistant Speaker, for holding my place. I will reflect very quickly on some of the comments that were made by Mr Garrett. I think it is a shame in this debate that although Mr Garrett very nobly recognises points of agreement, he also recognises that we descend into some situations that, by and large, are the exception, not the norm. Within our criminal justice system we must organise a system that is still based around the ultimate principle, which I would hope he agrees with, whereby people are innocent until proven guilty. If Mr Garrett would like to present to this House a methodology where we could maintain that principle, which is the fundamental foundation of our criminal justice system, and still iron out some of the issues he raised, I would be happy to engage with him on that point. But arbitrary cut-offs, such as those that were suggested—I assume they were suggested off the cuff, granted—do not do that. I am happy to engage in that debate, but we must ultimately keep in place that fundamental principle.
Again, I say to Mr Garrett that arbitrary cut-offs do not work. I will expand on that when it comes to the principle of “three strikes and you’re out”, because, again, that is probably the ultimate demonstration of arbitrary cut-offs that remove the very important principle of judicial discretion, which is a key part of our criminal justice system. I will come back to that, but first I will address the substantive matters in this bill. It overhauls the legal services system in New Zealand as it has sat in its current form since about 1991. Those who have been listening to this debate will know that the set of changes we are examining in the House today were a consequence of a review that was carried out by Dame Margaret Bazley. I think the reason that the review became so controversial was that she pointed out the failings in our publicly funded legal services system. Some quite wide-ranging accusations were made, and some of the actors and rogues in the system were a key part of her review. I think she brought that issue to the fore.
It is right that the review was done, but I would be loath for anyone to assume that all of our publicly funded legal services are characterised by some of the individuals that Dame Margaret Bazley highlighted. In Manukau in particular, we have seen some incredibly good individuals working in that area have their reputations smeared by the very blanket accusations that were made. I think it is important that ultimately we ensure that public confidence is retained in our system. That perhaps would have been restored had Simon Power as the Minister of Justice spoken to the Bar in that area, but, unfortunately, he did not.
At the Justice and Electoral Committee we questioned the chair of the Legal Services Agency as to whether he spoke to the Bar in Manukau, and he had not at that time either. I would like to highlight that Lianne Dalziel and Charles Chauvel did make that effort, but the Bar itself was seeking action by the Minister himself or by the agency rather than just the Opposition, who took a key interest in the area. Although it is important that we act in an expedient way on the recommendations made by Dame Margaret Bazley, it is also important that we get it right, because this is an incredibly important arm of our justice system.
What are the objectives when examining this legislation? The Government has pointed some of them out. One of them is managing rising costs, and that is absolutely understandable. We are looking at a legal aid system that is costing about $130 million per year, but most of the increases we have seen have been in the criminal justice area. Some particularly large and high-profile cases have sucked up a considerable amount of that. Also, there have been claims to the Waitangi Tribunal. That is one element that the Government is interested in tackling, but in my mind ultimately it is secondary to some of the much more important principles of ensuring ongoing accessing to justice and upholding the quality—this was pointed out by my colleague in the Māori Party—of the services that the public access via legal aid. Public confidence in that service is incredibly important.
Labour will, though, support this bill’s referral to the Justice and Electoral Committee. There are elements in it that we absolutely support but we do have concerns as well, and I want to talk about both those areas. We are pleased that the Public Defence Service will be expanded. That was something that was launched by the justice Minister at that time in 2004, who, obviously, was Phil Goff. The Public Defence Service demonstrated that we could have a system of salaried public defenders that would standardise a high quality of defence and iron out some of those issues that come with a fee basis, and it was a good alternative to legal aid. My reading of what has happened in the transition with the recommendations from Dame Margaret Bazley and what has come through from the Government is that there are a couple of areas that may not have been covered by the extension of the Public Defence Service. I would be interested in Government members clarifying this for me, but I understand that the Minister of Justice announced back in April that we would see the service extended to Hamilton, Wellington, and Christchurch.
Also, I think Dame Margaret Bazley made a recommendation about Palmerston North. I am not sure whether the Government picked up that recommendation, but I am happy to hear whether that is the case. Obviously, she would have seen some reason for that, and I would be interested to see where the Government disagrees with her in that regard. I want to highlight that we are seeing another announcement about the extension of the Public Defence Service back in April—and here we are again, talking it up.
Perhaps we will see the Public Defence Service re-emerge as a Christmas gift, given that this Government is such a fan of re-announcements.
I also want to touch briefly on the fact that the Government is placing greater emphasis on the use of community law centres. I absolutely endorse that, but again I flag my concern that it is one thing to acknowledge the good work community law centres do but it is another to demonstrate to them that they will have ongoing, sustained funding. The Minister of Justice has continually given us that assurance, but as far as I am aware, they are still ultimately, in the funding framework they are under, at the mercy of the Lawyers and Conveyancers Special Fund. Because it is based on an allocation of interest being divvied—I think it is a 60/40 split—between a bank and the community law centres, it is not sustainable and consistent. The amount of time and energy that the network of community law centres has wasted on worry about the source of their funding is, I think, unnecessary. If we are going to acknowledge the good work they do, we should give them greater certainty in the way they are funded.
I want to touch briefly on another of our concerns. Lianne Dalziel has already pointed out that it is one thing to say we want to cut down on the cost of legal aid; it is another to try to incentivise within our criminal justice system the constant use of not guilty pleas. Mr Garrett has to acknowledge that that is perhaps an unintended consequence of his legislation but a consequence none the less—we have actually incentivised not guilty pleas. That will mean that we are likely to see an increase in legal aid. Does Mr Garrett perhaps propose that if a person ends up being on their third strike, they then do not get any more legal aid?
A party vote was called for on the question,
That the Legal Services Bill be now read a first time.
Ayes 112
- New Zealand National 58
- New Zealand Labour 42
- ACT New Zealand 5
- Māori Party 5
- Progressive 1
- United Future 1
Noes 9
Bill read a first time.
Hon ANNE TOLLEY (Minister of Education) Link to this
I move, That the Legal Services Bill be considered by the Justice and Electoral Committee , that the committee report finally to the House on or before 21 December 2010, and that the committee have authority to meet at any time while the House is sitting (except during oral questions), and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
The ASSISTANT SPEAKER (Eric Roy) Link to this
The House has received an amendment to the Minister’s referral notice, in the name of Charles Chauvel. I will put the question on the amendment first.
A party vote was called for on the question,
That all the words after “Justice and Electoral Committee” be omitted.
Ayes 52
Noes 69
Amendment not agreed to.
A party vote was called for on the question,
That the Legal Services Bill be considered by the Justice and Electoral Committee, that the committee report finally to the House on or before 21 December 2010, and that the committee have authority to meet at any time while the House is sitting (except during oral questions), and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
Ayes 69
Noes 52
Motion agreed to.