Legal Services Bill

Hon SIMON POWER (Minister of Justice) Link to this

I move, That the Legal Services Bill be now read a third time. The Legal Services Bill forms the Government’s response to Dame Margaret Bazley’s call to transform the legal aid system. These are important reforms. This bill will help restore public confidence in the legal aid system, and will lead to better service for vulnerable people who rely on the legal aid system. The bill overhauls the administration of the legal aid scheme by bringing the functions of the Legal Services Agency into the Ministry of Justice, and creating an independent statutory officer to exercise those functions that require independence. It also creates a new Legal Aid Tribunal for resolving disputes over entitlements. Dame Margaret Bazley highlighted the need for legal aid to be administered as a core part of the justice system, and I expect that these new arrangements will lead to a better alignment between the court system and the legal aid system.

The Legal Services Bill will improve the responsiveness of the system and allow for innovative service delivery by removing much of the prescription in the old Act and allowing the Secretary for Justice the flexibility to establish different legal services, and deliver services in different ways. This is consistent with the Government’s commitment to improving the quality of public services and ensuring value for money. The bill also streamlines the eligibility process for prescribed grants. This will apply to low-cost grants in a criminal jurisdiction and will reduce the compliance costs for providers, speeding up granting decisions and reducing the cost of administering the system.

The bill also clarifies funding arrangements for Waitangi Tribunal proceedings and removes the risk of overlap and duplication with funding for settlement negotiations. Importantly, the bill introduces a new quality assurance and performance management system for providers to enable the ministry to manage the quality of services provided to legally aided clients. The new quality assurance system will require providers to prove that they are up to the job before they enter the system, and regular reappraisal will then ensure they maintain high standards.

We are all well aware of the review by Dame Margaret Bazley that led to this bill being introduced. In her report, Dame Margaret called for a sea change in the way legal aid operates. When someone as experienced in providing services to the public as Dame Margaret Bazley talked about system-wide failings, a system open to abuse, and appalling behaviour, we knew we had a problem. This bill is merely the starting point, and we will closely watch the implementation of the bill and its provisions.

I again commend and thank the Justice and Electoral Committee, under the chairmanship of Chester Borrows, for the work it has done in considering the Legal Services Bill. To all those who made submissions to the select committee, I want to express my appreciation for their time and for their views. Submitters were concerned that the transfer of the legal aid system to the Ministry of Justice may reduce the level of independence in the legal aid system. We thought about this carefully in the policy design, and I am pleased that the committee agreed that the position of the Legal Services Commissioner will guarantee that independence. These important reforms will restore public confidence in the provision of effective legal aid services. I commend this bill to the House.

CHARLES CHAUVEL (Labour) Link to this

Since the Minister of Justice first mooted reform of the legal aid system, the Labour Party has supported, in principle, the need for reform. But it would have to be said that over the course of the debate on this matter, in the hearing of evidence in the Justice and Electoral Committee and with subsequent developments in respect of the Government’s criminal justice policy, the Labour Party’s concerns about the overall effect of this reform, taken with others, is leading to increasing concern, and it is now with quite a degree of reluctance that the Opposition agrees to continue to support the Legal Services Bill at its third reading.

I want to run through some of the serious concerns that we have increasingly held as the debate has gone forward. The Minister in his third reading speech just made reference to the Bazley report, the report of Dame Margaret Bazley, which kicked off this set of reforms. He said something along the lines that a public servant as experienced as Dame Margaret, someone who is as proficient as she is in looking at the best ways in which to deliver public services, should not be lightly ignored, and it is true that Dame Margaret is somebody who has given great service to New Zealand and to its Public Service. But there are major issues with the Bazley report, and those issues are ones that the House needs to take notice of, because all the reforms we are debating today proceed from that report.

The aspect that is of most concern in the Bazley report is the one that was drawn to the attention of the select committee by the New Zealand Law Society when this bill was before its members—that is, the anecdotal nature of the concerns that Dame Margaret expressed. She did so in language that I hope she has had cause to reflect on, because she looked in particular at the way in which legal services were delivered in South Auckland, and in particular at the new Manukau District Court.

I have been to that court. I have met practitioners who work there, off and on, in gruelling conditions, some on legal aid assignments and some not. Mr Assistant Speaker Robertson knows, as do other members in the House, that that is one of the more difficult courts in the country in which to practise and in which to deliver access to justice for New Zealanders. But there are practitioners who do that day in and day out. They do it unselfishly, and they do it often in the face of a system that does not seem to care very much about method or outcomes, yet their professionalism keeps that system going.

The greatest matter of regret that I have in this whole debate is that neither Dame Margaret nor the Minister has ever distanced themselves from the more extreme comments that occurred in the Bazley report about those practitioners. There may well be one or two whose work needs better quality control, but the vast majority of those lawyers work very hard to provide access to justice. It is a crying shame not only that their efforts have not been properly acknowledged by the Government but also that the Minister has not chosen to acknowledge that professionalism on a fundamental basis, because without it the entire system would grind to a halt. It is also questionable whether an entire set of reforms, such as those we are seeing in this House today, can be grounded in the Bazley report, because of the anecdotal nature of the findings, and because of some of the extreme language in that report. It is important, I think, to put on record in this speech those fundamental concerns.

The other concern that I think it is fair to put on record that has developed on this side of the House, as this bill has proceeded, is the way in which it meshes with other matters of criminal justice policy being advanced as part of the Minister’s reform agenda. I think we need to say that in that category lie not only the restrictions on choice as to advocate, which this bill will put into place in the legal aid system in respect of certain categories of offences, but also the “three strikes” legislation, which I note the Minister has distanced himself from, but which will have the inevitable effect of increasing traffic—for want of a better way of putting it—through the system. Combine that with restrictions on choice of advocate in the legal aid system and, inevitably, we will see a deterioration in the ability of New Zealanders, the people whom we represent in this House, to access justice.

Then there is the package of reforms currently under consideration in the Justice and Electoral Committee, the Criminal Procedure (Reform and Modernisation) Bill, where, as the Law Society has pointed out, procedural reform is being put ahead of reform of the drivers of crime or the substantive criminal statute, or even, really, the rules of evidence—an odd way to do it—and in the process we have some restrictions on the right to the presumption of innocence, restrictions on the right to trial by jury, and other major concerns being brought to the attention of the committee not only by the legal profession but by a number of people concerned about that fundamental right of access to justice.

So we have some major concerns about this bill. I do not say that all parts of the bill are bad, and I hope that members on this side of the House have been fair about its provisions as we have gone through the process of debating it. One of the very positive aspects of the legislation is the extent to which it provides some contestability in the provision of publicly funded legal services to those who cannot pay their own way. Not only will there be the continuation of a contracted legal aid provision system for some lawyers but there will be an extension of the Public Defence Service. That is an excellent system. It was introduced under the last Government, and it is being extended as a result of the bill we are debating today. The bill empowers a reasonable extension of that scheme.

Two things need to be said about the Public Defence Service. The first is that it provides some choice and contestability in the system. The Public Defence Service is a publicly funded, publicly owned entity, and it provides defence services for people who employ its services. The evaluations of the Public Defence System show that the way it provides services is very, very effective and very, very efficient. That provides good evidence that the State can deliver these sorts of services, if the services are structured properly on an appropriate basis, and if it can do so in a way that keeps a check on, or a reference to, contracted private providers. So that is a good thing. The other good thing is that there will be a third category of provider. In some places where it is just not possible to find legal aid providers on a contracted basis, then firms will be contracted to provide the service. We support that.

In summary, although the reforms are not all bad we have some major concerns about them. We have decided we will continue to vote to support the legislation, but it will be very much on the basis of waiting to see what the results are like. We are certainly not making any commitment to retain the system that will be brought into effect by this bill, because of the major concerns I have listed in this speech—in particular, the concern about the inability of people to make a choice about their representative or advocate, especially in respect of some offences when the grant of legal aid is not even untrammelled but, effectively, a loan from the State. That is a matter for real concern. If it transpires that in the implementation of this legislation, along with the other parts of the Government’s criminal justice reform agenda, the right of access to justice for New Zealanders is significantly impaired, then the watching brief that we are keeping on it will mean that when we have the next opportunity, we will make significant changes to the legislation if they are required.

CHESTER BORROWS (National—Whanganui) Link to this

Thank you, Mr Assistant Speaker, and congratulations on your appointment. This is the first time that I have been in the House to have the opportunity to say that. It is good to see you back.

I rise to speak in respect of the Legal Services Bill. I acknowledge the comments of the previous speaker, Charles Chauvel, and acknowledge that the concerns he raised are concerns that are held widely across the legal sector and that were well discussed within the Justice and Electoral Committee. I congratulate the committee members on the work they did in the consideration of this bill.

Those of us who have worked as legal aid providers and duty solicitors around our courts in New Zealand can think of times when we were taking instructions under a tree while it was raining down outside, or were leaning in the doorway of the very cramped public area outside the court, trying to deal with people and to work with them in circumstances that were trying for them, in order to access the justice they were entitled to in our free and democratic society. But we also have to take cognisance of those matters raised by Dame Margaret Bazley in her report—and I take the point made by Charles Chauvel earlier that, very much, anecdotal comments were made. To my disappointment, those comments tended to feed a healthy appetite out there in the general public, who do not normally interact with courts, or at least with criminal courts, anyway—an appetite for the belief that those within the legal fraternity were lower than the most low.

The fact is that people within the legal fraternity have to work within very tight bounds, and they frequently make a significant contribution to access to justice out of their own pockets, by way of time and services they cannot claim for under the legal aid system and they have no way of funding. I think if we looked across the rest of the economy in New Zealand and expected a similar level of altruism from the abilities of various businesses and practitioners, then we would be found wanting. The fact is that a number of areas within our current legal aid provision need to be addressed. Loopholes will be exploited. Given the way they are exploited, in the high-profile way they are exposed, it brings the legal fraternity into disrepute, albeit, as I have already said, the public really want to believe that that fraternity is already there.

The bill seeks to disestablish the Legal Services Agency and to fold it back into the Ministry of Justice—as was previously done, and as it worked particularly well—and to establish a Legal Services Commissioner. It introduces a new quality assurance framework that will enhance the confidence of the public in the knowledge that those providing legal aid services, on payment from the taxpayer and on behalf of society at large, will be assessed, and will be providing good legal services for those they are working for. The bill will allow the Secretary for Justice the flexibility to establish different legal services and to deliver services in different ways. To provide new ways, and creative and innovative ways, of enhancing and facilitating access to justice is something we need to do, bearing in mind the spread and the changes we have in population bases around the country.

The bill allows for the streamlining of eligibility for low-cost criminal cases in summary jurisdictions, and it allows the Secretary for Justice to contract community law centres to provide legal services. That is something that community law offices are willing to do, and the community is willing to have community law offices provide those services for it.

Lastly, the bill replaces the Legal Aid Review Panel with the Legal Aid Tribunal, which will consider applications for the review of legal aid applications. I find this last point extremely important, bearing in mind the gatekeeper role that the Legal Services Agency has at present and how difficult it can be for providers of legal aid to access the most minimal of funds in order to assist access to justice for the people they work for, and bearing in mind that the public largely believes that those who appear before the court are already guilty and should be extended very little in terms of public time, energy, or taxpayer money.

I commend this bill to the House. I am grateful for Labour’s assurance that it will be supporting the bill at this third reading, and I commend the Minister for the job he has done in preparing the bill for consideration by Parliament. Thank you.

CARMEL SEPULONI (Labour) Link to this

Thank you, Mr Assistant Speaker Robertson. I congratulate you on your new role. I did so last night when you were in the Chairperson’s Chair, but I was told by the Minister Simon Power that I was premature in doing so, because apparently you had not been accepted in that role. I am assuming that you now have been; I hope you have been. You are looking very comfortable. It suits you well, Mr Assistant Speaker.

I am standing to discuss Labour’s views on the Legal Services Bill. I say from the start that Labour members support this bill, but we do so reluctantly. I think my colleague Charles Chauvel articulated Labour’s views really well in his speech prior to Chester Borrows’ speech. I will go over it again with regard to Labour’s thoughts on the Legal Services Bill.

We understand that the bill overhauls the legal services system. It is the legislative result of Margaret Bazley’s review of legal aid, completed last year, which found some failings in the delivery of publicly funded legal services. The bill will replace the Legal Services Act 2000.

Labour believes reforms are necessary, with an emphasis on the public defender system and community law centres, and a focus on quality assurance. However, we have concerns about this bill and the Government’s overall direction with regard to its justice policy, which seems to be inhibiting access to justice. I will talk more about that shortly.

Just to provide a bit of background, the purpose of this bill has been, from the outset, “to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means; and (b) delivers those services in the most effective and efficient manner.”

What are we concerned about? I will start with the “three strikes” bill. We are concerned that the “three strikes” legislation will place further pressure on publicly funded legal services, and will negate some of the good work that has been done in the sector. The number of defendants charged with serious crimes relying on legal aid will increase, given that they will be more likely to plead not guilty in order to avoid being locked up for a long time. Those are some of the reservations and concerns we expressed when the “three strikes” bill was going through the House.

Our reservations must be more widely shared than National wishes to admit, because that legislation should really have gone through the Justice and Electoral Committee. It should have been headed by the Minister of Justice, Simon Power. We are pretty sure that he shared our reservations with that bill. Hence, rather than going through the Justice and Electoral Committee, as it should have, the Law and Order Committee looked after it. I remember, because I was on the select committee at the time. Our concern was that, really, the police should not have responsibility for a sentencing bill. However, the Minister of Justice washed his hands of it, the Law and Order Committee was stuck with the bill, and that is where it went. We disagreed with it. There are fundamental reasons why we were concerned, and we discussed them at that time. Now our concerns about that bill have again arisen with regard to this legislation.

The concern was really that the number of defendants charged with serious crimes relying on legal aid will increase, given that they will be more likely to plead not guilty in order to avoid being locked up for a long time. That will inevitably prolong the length of trials and place extra cost pressure on the justice system. That, really, was our concern in relation to the “three strikes” legislation.

Dame Margaret Bazley’s report uncovered some serious problems with the way New Zealand’s legal aid system operates. As a result, this bill is necessary to restore taxpayer confidence in legal aid, which is, we would all agree, an indispensable part of our justice system. But the bill, unfortunately, will not achieve that restoration of confidence, as there is no statutory consultative requirement in the bill with community law centres and the rest of the legal community.

We are pleased, I have to say, that the Public Defence Service will be expanded. It is a system launched by former Minister of Justice Phil Goff in 2004. The Public Defence Service is a good way to meet the cost of rising fees charged by barristers and solicitors in private practice. It creates a system of salaried public defenders and will standardise a high quality of defence. It really is a good alternative to legal aid.

We are pleased the Government is placing greater emphasis on community law centres. There was a time—I think it was the beginning of last year—when we were concerned that their future might be at risk under this National Government, so we are pleased the Government is placing a greater emphasis on community law centres and that the Secretary for Justice will have the flexibility to utilise different means of delivering legal services. But we are disappointed that the obligations are not legislated for in this bill.

KEITH LOCKE (Green) Link to this

The Green Party at the time of the first and second readings of the Legal Services Bill voted against it, and there were good speeches illuminating why we were doing that, from Gareth Hughes and Kennedy Graham. Unfortunately, Kennedy Graham cannot be here today to present a speech on behalf of the Greens. He has been the Green member of the Justice and Electoral Committee, but like many other Christchurch MPs he is otherwise detained.

This bill has several good points, as have been outlined by previous speakers. The public defender system is a step forward, and we want that to be reinforced. But we are concerned, like the earlier Labour speakers, that to some degree this legislation has been driven by the Margaret Bazley report, which, as has been pointed out, has been highly criticised by lawyers, particularly in the Manukau area, as an unwarranted attack on them without sufficient evidence to back up the accusations of somehow wrongly benefitting from the legal aid system. The main reason why the Green Party opposed the bill at the earlier stages still applies, in that we are not sure whether disestablishing the old Legal Services Agency and putting the administration of the legal aid services under the Ministry of Justice will preserve the necessary independence that a legal services body requires. Putting in a supposedly independent statutory officer, the Legal Services Commissioner, will not necessarily solve that problem.

The report back from the select committee says: “It is important that while the Commissioner would be accountable to the Secretary for Justice, the Secretary should not be able to interfere in the Commissioner’s performance of his or her independent functions as set out in the bill.” That is all very well, but, as we have found in other areas, when an officer is reporting to someone above them in the hierarchy their responses are a bit conditioned by the responses of the higher-up officer. That issue was raised as part of the debate on the bill that merged Archives New Zealand and the National Library and put them under the Department of Internal Affairs. Even though there is an independent Chief Archivist, the Chief Archivist has to report to the head of the Department of Internal Affairs. A similar situation will constrain the real independence of the Legal Services Commissioner, particularly when monetary matters are involved, as they are with legal services and as they are in the case of the Chief Archivist and the Department of Internal Affairs. Budgets can be restricted and so on, so we do not think there is sufficient independence in the system.

The other question raised in the report back from the select committee, when talking about submissions, was the question of people being able to get a lawyer of their choice. As was pointed out in the report back, the previous board of the Legal Services Agency took away the right of defendants to choose their own lawyer in category 1 and category 2 criminal cases, which involve lower-level criminal offending. But it is difficult, in the Greens’ view, to make a distinction between lower-level offending and higher-level offending in terms of access to legal aid. One might say that the matter is not as important if the person would receive only a small punishment, so it does not matter that they cannot choose their own lawyer. But, as we know, the very first offence, even if it involves low-level criminal offending, can be very important for people. It often sets them on the road to a criminal career, repeat offending, and so on. If they had had a good lawyer at the beginning stage, it might have made a difference. People often feel a great injustice if their lawyer is not up to scratch, even in the smallest case. If they are wrongly convicted, the sense of injustice can carry over into more criminality. So that is not a good thing.

There were submissions from community law agencies for consultation to be written into the legislation, so that there was a statutory requirement for consultation by the agency. Unfortunately, the select committee decided that such a requirement should not be written into the legislation. Again, although it is good to trust that people will have the right motivation and will engage in consultation because that is the thing to do, I think it is always good to write a requirement in, because some officials and some Governments are not very keen on consultation with non-governmental organisations. We have currently a Minister of Foreign Affairs, Murray McCully, who is not very keen on consultation with non-governmental organisations in the foreign affairs and aid sector, so I think it is good to write in those kinds of provisions.

With those few comments noting, as I indicated, that the public defender system and other aspects of the bill are quite useful, I say that on balance the Green Party will stick with its position of voting against it. Thank you.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Assistant Speaker Robertson, reo Māori te kōrero. Nō reira ko tāku i te tuatahi he whaiwhai haere i ngā kōrero a ētahi ki a koe tēnā koe, hoki mai ki te Tūru o te Speaker . Ko tāku he mihi ki a koe kua eke ki tērā o ngā taumata, nō reira kia ora rawa atu.

I a mātau e titiro ana ki tēnei pire te Legal Services Bill, kāre mātau i te titiro whāiti nei, arā, ki te mā me te pango. Ko tā mātau titiro, he tirohanga whānui, kia taea ai te titiro ki te hōhonutanga o ngā take pēnei i tēnei ki mua i te aroaro o te Whare. Kei te pūtake o tā mātau titiro, o ngā whakaaro o te Pāti Māori, e pēnei ana. Mēnā āe rānei he painga tō te pūnaha ā-ture ki te hunga whakaraerae o te hapori. Ki te tika, mā te āwhina ā-kupu, mā te āwhina ā-rōia anō hoki. Nō reira, kei te whakaae atu mātau ki te whakaaro kia whakamātauria ngā rōia i mua o tā rātau noho i te rārangi rōia. He pai tērā ki tā mātau titiro, ki ō mātau whakaaro, me pērā rawa te tika o te reo Māori.

Tuarua, ka tino harikoa mātau mēnā i whakaae te Minita ki te whakahoki i te pūtea mō te Māori Legal Service. Ēngari, kāre tērā i eke, i eke panuku. Ka toru, ka nui te hiahia kia noho pū te komiti āwhina ā-hāpori, kia whai wāhi te hāpori ki roto i ngā whiriwhiringa. Ko te public advisory committeetērā. I a mātau e titiro ana ki ētahi atu o ngā take, kua noho āwangawanga te Pāti Māori ki te whakakorenga o taua komiti, arā, ko te public advisory committee, arā, te rōpū e āwhina ana i te Legal Services Agency mō ngā mānukanuka o te hāpori mō te āwhina ā-pūtea, āwhina ā-noho, āwhina ā-mātauranga rānei ki te hāpori, ki tētahi wāhanga rānei o te hāpori, tāku e kōrero nei; ki tētahi atu tāke rānei ka tae atu ki mua i te aroaro o te Minita i te mea, ko te iwi Māori te hunga kimi āwhina, hia āwhina ana i te nuinga o te wā.

Kua tino titiro mātau ki te pūtake o te pire me te titiro ki ngā take kua puta mai i roto i ngā kōrero kua kōrerohia nei, i te mea, te tikanga me haere ngā painga ki te iwi Māori. Hei whaiwhai haere i te kōrero a Dame Margaret Bazley e kōrerohia ake nei “if the legal aid system fails Māori, it fails altogether.”Koinā tana kōrero. Nō reira, nā ngā āwangawanga i mua mō te legal services, he pai kē atu mēnā ka taka te hunga nei ki raro i te Pāremata. He pai tonu tērā ki a mātau pēnei i tā Keith Locke e kōrero ake nei.

Engari, ko tētahi o ngā take i kōrerohia i roto i te Whare, he take nui whakaharahara ki a mātau, ko tērā e pā ana ki te wāhanga tuarima, i te whārangi tuatahi, arā, e kī ana, ko ngā rawa e hāngai tonu ana ki te whenua Māori. Me pēnei pea te whakamārama ake i roto i te kōrero a Dame Margaret Bazley, mō te legal services. Ehara i te mea i kōrerohia, ehara i te mea i puta ētahi akiakinga e hāngai tonu ana ki ngā moni o tēnā, o tēnā, otirā, te whakamātautanga o te moni me ngā kaitono, me te nui o te moni a tēnā kaitono, a tēnā kaitono.

Ko te whenua Māori he take nui i roto i te tirohanga o te Ao Māori. Me kī, e mea ana ko wai mātau a Māori nei. I roto i tētahi o ngā whakataukī e kī ana, “Nōku te whenua, nō ōku tūpuna”. Nō reira, arā noa atu ngā kōrero i roto i te pīre nei e pā ana ki tēnei mea te whenua. Nō reira, koinei i puta te mānukanuka nui, i kitea mai ai e noho he kupu i huna nei i roto i te wāhanga tuatahi o tēnei o ngā pire, arā, i te wāhanga tuarima e mea ana, ka whakaaetia kia titiro te kōmihana ki te rawa me te moni ka puta nā runga i te āhuatanga o te whenua Māori. Mēnā ka titiro ki te wāhanga tuatahi i tōna whānuitanga kei te kite atu, kei te whakaaetia kia titiro whānui ki tēnei mea o te moni, o te pūtea, o ngā rawa a tēnā, a tēnā, a tēnā; kia taea ai te whakamātautau mēnā āe rānei, kāore rānei ka taea e tētahi te utu ngā nama mō te āwhina ā-ture.

E mea ana te wāhanga tuarima o taua whārangi tuatahi mēnā ka tāpirihia mai ko te pūtea me ō pānga ki te whenua Māori, ka mutu, ka taea te whakatakoto i tērā momo whiriwhiringa i roto i ngā whakahaere o te kōti ā-whānau nei. Nō reira, he āhua uaua te whakamārama ake i tēnei i te reo Māori engari ko te tino pūtake o taku kōrero, he rerekē anō rā te titiro ki tēnei mea te whenua Māori nā runga i te mea, he tirohanga tō te Ao Pākehā, tāku e kōrero nei. Nā, ehara i te mea ka titiro a Māori nei ki tōna whenua, ko tētahi wāhi ki tēnā tangata, ko tētahi wāhi ki tērā tangata, ko tētahi wāhi ki tērā tangata, kāo. He titiro whānui. Ehara i te mea ka pērā tonu te titiro o te Ao Māori ki tōna whenua. Ehara i te mea ko te pānga ki te whenua he take ā-pūtea nei, ā-rawa, ā-whai rawa nei, kāo. He titiro ā-tikanga nei, ā, ka mutu, i ētahi wā ka puta te kōrero e kore ngā Māori e hoko i tēnei mea ko te whenua i te mea, ehara nōna tērā whenua, he whenua nō ngā mātua, nō ngā tūpuna. Ko te nuinga o ngā tāngata ka whai pānga ki roto i te whenua Māori, ehara i te mea ko te rawa te mea nui, ehara i te mea ko te moni te mea nui i te mea, kei te mōhio tonu ko ngā painga ka taka ki ngā tamariki, ki ngā mokopuna ā te wā. Ka mutu, ki te āta wetewete i ēnei take i roto i ngā kōti, he uaua. He mea nui tērā. Nō reira, ki roto i a Te Waiariki i tēnei wā e hia kē nei ngā whenua, ngā poraka whenua Māori ki roto i te rohe o Te Waiariki, o Te Tai Rāwhiti anō hoki, he moumou moni, he moumou tāima noa iho te whaiwhai haere i te hunga ka whai pānga ki tēnei mea ko te whenua. Ka mutu, e hia kē nei ngā Māori kāre i te mōhio he pānga whenua tō rātau. Kāo. Kāre rātau i te mōhio kei te noho huna ā rātau kōrero mō te whenua kei roto i te Kōti Whenua Māori. Nō reira he uaua rawa. I whakatakotohia e te Pāti Māori tēnei take ki mua i te aroaro o te Minita, ēngari, auare ake. I whakatakoto i te kōrero ki mua i ngā pāti o te Whare Pāremata, kāre i eke panuku inapō, hoi anō ehara i te mea nō te kore hiahia engari kāre i eke.

Ka mutu, hei kupu whakamutunga pea ki tēnei o ngā kaupapa, kāre tēnei wāhanga e paku āwhina i te iwi Māori ahakoa ko rātau te hunga e kimi āwhina ana i roto i te kōti. Ko tā mātau kē, ko te kī atu me pana atu tērā, me ūkui atu tēnei wāhanga i roto i te pire kia taea e te iwi Māori, te hunga e whai pānga ana ki te whenua Māori nei, te kimi āwhina i roto i ngā whiriwhiringa, kia taea ai e rātau te tono mō tētahi āwhina i roto i te kōti. Koinā te mea nui mēnā ka whakatāpirihia atu te whenua Māori ki te rawa kua nui ake te pūtea, ka mutu kua raruraru katoa te iwi Māori mēnā ka tono pērā rā. Kia ora tātau.

[Greetings, Mr Assistant Speaker Robertson. I am giving my address in Māori. But first, I want to add to the complimentary remarks by others before me, by welcoming you back to the Speaker’s Chair. I commend you on attaining that position. Well done.

When examining the Legal Services Bill, we did not take a narrow and simply black or white view of it. Instead, we looked at it broadly so that we could get an in-depth understanding of the issues in it, such as the ones before the House. Central to our view and the thoughts of the Māori Party were the following issues. Was the legal aid system beneficial to vulnerable members of the community, yes or no? In terms of justice, would these vulnerable ones have access to it through legal advice or representation, as well? So we agree with the view that lawyers should sit competency tests. We see that as a good thing—a correction, to our way of thinking. I have to express that properly in Māori.

Secondly, we would have been really delighted if the Minister had seen fit to reinstate funding for the Māori Legal Service. But that did not happen; it did not make it to the top. Thirdly, we dearly wanted the public advisory committee retained, to ensure community involvement in the consultations. As we examined the issues, we of the Māori Party became concerned about the abolition of the public advisory committee, which assists the Legal Services Agency that gives advice on community concerns in terms of funding, housing, or educational assistance to the community or a section of it, or any matter referred to it by the Minister or that comes before him. Māori people are the ones who seek assistance or want help most times.

We have taken particular interest in what this bill might offer in terms of addressing issues that have emerged in the speeches delivered here, because, without a doubt, any benefit should go to the Māori people. As Dame Margaret Bazley said, “if the legal aid system fails Māori, it fails altogether.” That is what she said. Given previous concerns with the Legal Services Agency, it would be a great improvement if it came under the scrutiny of Parliament. We really favour that occurring. It is quite like what the member Keith Locke said previously.

One of the issues that was debated here in the House, an issue of huge significance to us, is the one that relates to clause 5 of schedule 1, namely resources relating to Māori land. Perhaps what Dame Margaret Bazley had to say in her review of legal services explains it better. It was not as though it was discussed, that pressure was focused specifically on the money that this person or that person had, or that the disposable income or capital of this applicant or that applicant should be assessed.

Māori land is of huge significance in a Māori World view. It refers to our significance as a people. A phrase in one aphorism states “The land is mine; it is from my ancestors”. So there are many references in this bill to this thing called land. Hence it was with some concern that we discovered, tucked away within schedule 1 of this bill, the proposal in clause 5 of the schedule that allows the commissioner to look at the equity and income of Māori land. If schedule 1 is considered in its entirety, one will see that it allows a wide look at the income and assets of individuals; and the making of an assessment, yes or no, as to whether one can afford the costs involved in legal aid.

Clause 5 of schedule 1 proposes that the income and one’s shares in Māori land be applied in the case of a proceeding in this family. This is quite difficult to explain in Māori, but the point I am trying to make is that when it comes to this thing called Māori land, there is a different view on it because the non-Māori viewpoint is quite different. That is what I am saying here. Māoridom does not view land from an individual perspective—that is, one part for that person, and one for someone else. Absolutely not. It is a broader perspective. To the Māori, it is not an individual thing. Shares in the land are not about money, assets, or having equity. Not at all. It is essentially a viewpoint based on a lore handed down—end of story. At times, statements are made that this thing, land, is never sold by Māori people, because it does not belong to them, but rather to the elders and the ancestors. Many Māori people have shares in Māori land, but assets are not the important thing here, nor the income generated, but rather the knowledge that any accrued benefits will drop down to the children and grandchildren of the future. Furthermore, unravelling issues like these in courts is quite a difficult process. It is a huge task. So the situation in the Te Waiariki electorate currently is that because there is a vast amount of Māori land, and numerous blocks, in the Bay of Plenty and East Coast regions, a lot of time and money is wasted chasing up people who have shares in this thing called land. And many Māori do not even know they have land interests—end of story. They do not know that their information about the land is tucked away in the records of the Māori Land Court. So it is difficult. The Māori Party took this matter up directly with the Minister, but to no avail. We put it before the other parties in Parliament last night, but it never reached the threshold. But it was not for want of trying that we did not get the desired outcome.

As a closing statement, perhaps, on this bill, this part of the bill will not help Māoridom, at all, not one bit, even though Māori are the very ones who are seeking assistance in the court. We advocate that this part of the bill be excluded and deleted, to enable Māori tribes and those with land interests to apply to the court for assistance. That is the important thing, provided it can be tacked on to Māori land where the equity exceeds the money in hand; otherwise Māori will be in trouble big time, through the application process. Greetings to us .]

SIMON BRIDGES (National—Tauranga) Link to this

Not yet!

Hon DAVID PARKER (Labour) Link to this

I want to speak in support of the Legal Services Bill. Before I do, I think it is good that members here are being a bit careful not to criticise all people who work on the legal aid rosters, because most people who work on the legal aid rosters do a good job and do not overcharge. None the less, Dame Margaret Bazley did find evidence of poor practice, and I must admit that I was surprised on the Justice and Electoral Committee to learn that some legal aid lawyers doing low-level criminal cases in South Auckland were earning $250,000 per annum at the cost of taxpayers. That seemed to me to be a bit excessive for low-level legal aid cases.

We heard not just in Dame Margaret Bazley’s complaints but also from retired Justice Hansen—I think he is Sir John Hansen now. He was the executive High Court judge in the South Island for a long time and a very practical man as well as a good judge. He said that one of the problems was the method of allocation of legal aid briefs. So he supported the change proposed by the Government in this legislation to the preferred lawyer rule—effectively, the choice was always given to a litigant to choose their own lawyer. There are occasions where it is important that litigants have continuity of lawyer, such as with cases involving language barriers and instances where the accused suffers underlying mental health problems and has had a history of involvement with a particular lawyer. It is helpful for everyone to have continuity, otherwise people have to go back over ground that has previously been traversed. Some of the issues relating to mental health difficulties should be brought to the court’s attention, and the administration of justice is improved through the facilitation of that by a lawyer who has previously been involved. But that does not mean to say that in all cases there should just be the automatic right to choose one’s lawyer, because we found that some of those cases had an association with the abuses of the legal aid system. So we agree that the removal of the preferred lawyer—that is, the right of people who are getting their legal expenses paid for by the Crown to choose the lawyer that they want—should not always be so for minor cases. It becomes a bit more difficult in more serious cases where someone might be at risk of losing their liberty for a longer period of time. We think it is then appropriate that the person who is accused has some control as to the lawyer who is representing their interests.

Some people say we should not have legal aid, but I disagree with that view. It is a wrong proposition, partly because the court processes are generally improved through people having legal representation. People who are of low income and who are charged with a crime often cannot afford a lawyer. If they are left without a lawyer, they suffer an outcome different from someone who can afford a lawyer. It does not seem to be a good principle of justice that there is a different outcome according to the amount of money someone has in their wallet. There are also flow-on costs to the Crown, in terms of less efficient court processes and the cost of ongoing disputes where people feel they have not had a fair trial and will be more likely to appeal and to object to the consequences. Their families will have a sense of injustice, and confidence in our criminal justice system will be undermined. So it is important that we have legal aid available.

I want to refer to a couple of other issues. Legal aid costs are significant and they are growing. What I think is wrong with the system at the moment is the “three strikes” legislation, which drives up legal aid costs. There is no doubt that if someone is facing a charge for a crime that would be one of their three strikes, then they will be more likely to defend that charge, because they do not want three strikes. They will be advised by their lawyer that the consequences of the charge are so significant that rather than plead guilty they should defend the charge. There is no doubt about that, in my view. So one area where we could be saving costs to the Crown is by doing away with the silly “three strikes” legislation.

Another area is that the Crown, through the police, needs to exert some control on how complex it makes some of these trials. The prosecution controls how long some cases are, to a certain extent, just as the defence does. The increasing complexity of all trials, be they civil or criminal, needs to be addressed, because the quality of justice has not changed much. There are no more or fewer people getting off charges when they really are guilty and ought to be convicted, or being convicted when they are innocent. That sort of thing has not changed over time, yet trials are becoming longer and longer and therefore more and more costly. Every additional technical step the prosecution takes has to be matched by a technical and costly act in defence on behalf of the accused, which is at the cost of legal aid if the person on trial is in receipt of legal aid, and at the cost of people’s pockets if the person on trial is not in receipt of legal aid. There is a need for rigour. How do we impose that rigour? Well, it requires a change of practice within the ministries. It is not so much a matter of law; it requires a change in practice. It also, in my opinion, requires judges to control their courts and to say that there is an interest in justice in the expeditious conduct of proceedings. I said yesterday, and I still believe, that the quality of justice cannot be divorced from its accessibility. If there is a fantastic but inaccessible justice system that no one can afford to access, it is not serving the overall interests of society in just resolution of disputes in terms of someone being convicted of a crime or not convicted, or in terms of the resolution of a civil dispute. We have to control the cost of justice. There needs to be rigour within prosecution.

One also needs rigour in the courts. Judges must control their courts. I saw a change during my period in practice when judges moved from being pretty strict, growly, generally old men on the bench. But, my goodness, they had a sense of fairness and they controlled their courts. If a judge saw a lawyer taking too long, trying to delay something coming on for trial, making it too complex, or asking too many preliminary or interlocutory matters prior to trial, they stood on it and stopped it. It is their right to and their duty to, if they are going to cause the efficient administration of justice. I think our justice system has gone back in that regard, and we need to get back some of that rigour. We see the increasing length of judgments. We have only about 350 decided civil matters in the High Courts in the whole of New Zealand between all of the judges. About 350 civil judgments between all of those judges in the whole of New Zealand were defended issues. Not enough matters are coming to trial, because the cost of trials has become too high. The bill covers civil as well as criminal jurisdictions. Legal aid is but one part of what we need for a cost-effective, fair, and just system. We must control the length and cost of processes, despite the fact that we have only 350 judgments in the High Court, I was told. We should look at the length of law reports. They are just as long as they were when we had far, far more decisions coming out of the High Court. The length of every judgment has increased. Too many of the reports read like books or, in my opinion, like academic treatises. It is important that we have the occasional academic look at a point of law, but that is not true of most cases. Most cases can be decided relatively simply on their facts without embarking on some jurisprudential consideration of the finer points of the law. We need more practicality at that end of the justice system, as well.

The Legal Services Bill, in so far as it changes the rules for preferred counsel, is a valid attempt to control expense, but we ought not to pretend that it is actually the fundamental driver of cost. The fundamental drivers of cost—whether they be in legal aid cases or non - legal aid cases—need to be controlled. The High Court Rules and the District Court civil rules need to be changed. They are too complex. We do not have enough oral judgments being delivered. That is another step that could be improved through better judicial practice.

KANWALJIT SINGH BAKSHI (National) Link to this

Before I start my contribution I thank the Hon Rick Barker for his role as Assistant Speaker and I wish him good luck as Labour’s senior whip.

I am privileged to stand in the third reading of the Legal Services Bill. Legal aid was first provided in New Zealand in 1912, to ensure that people of insufficient means were represented fairly. The National Government intends 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 bill will replace the current Legal Services Act 2000. The review undertaken in 2009 by Dame Margaret Bazley identified that the legal aid system was open to abuse. The review also identified that there were inadequate processes to ensure quality and serious delivery of issues. Last year there were 85,156 legal aid grants, costing taxpayers $131 million. The clear message was that it was time for fundamental changes. The trouble these days is that offenders know their rights better than they know their mistakes. The Justice and Electoral Committee received 24 submissions from lawyers, community law centres, and the general public. They all acknowledged the need for reform and recommended many changes to be considered.

The bill will provide an effective legal aid system that supports the wider justice sector. 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 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. It will also provide high-quality legal services by capable lawyers.

The focus of the bill is the reform of the legal service agencies. It transfers accountability for the administration of legal aid to the Secretary for Justice. It creates an independent statutory office that will have an obligation to grant legal aid and ensure the independence of public defence lawyers.

One of the changes recommended by the select committee that I think is very important is that the Secretary for Justice is required to cancel the approval of any provider who was convicted of an offence that is punishable by imprisonment. That will not only align the provision with the provisions of the Lawyers and Conveyancers Act 2006 but will also ensure that providers are held to appropriate professional standards, and will protect the reputation of the profession.

Another important change recommended by the select committee is to amend clause 77 by inserting new subclause (3A). This clause requires the Secretary for Justice to provide a reason for declining or giving approval for a provider to provide legal aid or specified legal services. That will make the secretary accountable for his or her decisions. It will create a system in which taxpayers can have confidence and it will provide high-quality legal services by capable professionals.

Legal aid services are vital to our most vulnerable citizens, and the changes made in the bill will make proud the users and the providers of legal aid. We are also confident that the package of changes 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 their money.

The bill shows that the Hon Simon Power, the Minister of Justice, has acted speedily to address the issues identified by Dame Margaret’s review. We are confident this package of changes will help build more public confidence in the legal aid system and provide quality service. I support the bill on its third reading.