Legal Services Amendment Bill

Hon SIMON POWER (Minister of Justice) Link to this

Part 1 of the Legal Services Amendment Bill makes some amendments, unsurprisingly, to the principal Act, the Legal Services Act. Every grant of legal aid is subject to the condition that the aided person must make a repayment to the Legal Services Agency as calculated in accordance with those provisions and the Legal Services Regulations 2006. In Part 1, clauses 4 to 6 exempt victims of crime from the requirements of the financial eligibility test and from making repayments if they are applying for legal aid for coronial inquests or Parole Board hearings. This means that victims of crime can now apply for legal aid for coronial inquests or Parole Board hearings, irrespective of their income level.

Clause 7 enables the agency to decide not to recover legal aid debt at any time during the proceedings. This will benefit all legal aid applicants, not just victims of crime, and it will improve administrative practice. Clause 8 of the bill extends the Act’s regulation-making power to exempt a specified class or classes of person or proceeding from the application of financial eligibility criteria or repayment conditions. Among other things, regulations may be used to exempt victims of crime from financial eligibility criteria or repayment conditions in respect of proceedings other than coronial inquests or Parole Board hearings. This means that if another situation arises that is clearly not in the interests of justice but is one that has not been foreseen, the Government will be able to make changes to the Act much more rapidly. This strikes an appropriate balance between parliamentary control over the legal aid system and the Government’s ability to move quickly where the public interest requires it.

All six submissions to the Justice and Electoral Committee supported the general intent of the bill. Although many sought greater support from the legal aid system for victims in the wider justice system, the Government considers that the review of the Victims’ Rights Act and, of course, the recent legal aid review are the appropriate vehicles for considering these wider problems. Part 1 creates the incentive for the bill to address a specific problem in the Legal Services Act and provides flexibility to address future issues.

JACINDA ARDERN (Labour) Link to this

I am pleased to rise and speak as a member of the Justice and Electoral Committee, and, firstly, thank the Minister in the chair, the Hon Simon Power, for progressing what was very important Labour legislation. The Legal Services Amendment Bill was introduced in response to a particular crime that demonstrated what we would all agree—on the select committee, and probably more widely across the Chamber—was an anomaly in the law that deserved to be corrected. I am pleased that we are continuing to progress this bill.

My residual memory of the consideration of the bill and of the submissions was the heavy focus of the submitters on the view that although this was an important change, much more needed to be done in support of victims as they proceed through our criminal justice system. That was not something that the committee was in a position to progress within the scope of this bill, but it was something that we all obviously noted as a select committee. I also reflect that although this bill was a response to a quite discrete situation, there was every chance in the world that this could happen again. There were many other circumstances in which the previous Labour Government tried to be proactive in strengthening the rights of victims in our criminal justice system through legislation such as the Victims’ Rights Act, the Sentencing Act, and what was a very important fundamental shift towards highlighting and putting a preference towards reparation for victims when sentences are handed down through our courts.

But I come back to the bill. As the Minister has already pointed out, it makes three substantive changes to the Legal Services Act. The first, and probably the most important, removes the financial eligibility testing and repayment conditions for victims of crime. The next two provisions are really a safeguard to ensure that the select committee does not have to go through such a substantive and onerous legislative process again when we are facing an issue of pure and simple justice. In that regard, there are two extra changes. One is the discretion given to the Legal Services Agency to decide, at any point during the granting of legal aid process, not to recover legal aid debt. I will come back to that provision. The second change is the ability to change by regulation any future circumstances or criteria where it would again be a matter of natural justice not to recover a legal aid debt from a victim. I would not necessarily describe the select committee’s changes as substantive but I think they add clarity to what the previous Government and the current Government wished to achieve.

The first change is the insertion of new clause 4A to clarify some of the other provisions in Part 1 where these changes will apply, and I will cover those very briefly for the sake of clarity. Substituted section 9(8)(b)(ii) set out in clause 5 clarifies that legal aid may be granted in civil matters where there is “a hearing of the New Zealand Parole Board (other than one in a proceeding specified in section 6(c)(i)) that concerns an offender and is a hearing at which the victim may appear as of right or with the Board’s leave;”. That provision ensures that any case where a victim has the right to be present, and chooses to exercise that right, will fall within the ambit of that clause. Again, to avoid any doubt, that change was an important but reasonably minor clarification made by the select committee. A similar amendment to section 15(6)(d)(ii) was made in clause 6 so that at “a hearing of the New Zealand Parole Board … that concerns an offender and is a hearing at which the victim may appear as of right or with the Board’s leave;” a victim is again eligible to be covered by this legislation.

I will reflect in a little more detail about the recovery of legal aid debt being able to occur at any point in a process currently undertaken. Under the existing legislation the Legal Services Agency will act to recover debt at the end of legal proceedings, but currently does not have the power to make a decision midway through that legal process. Clause 7 allows the agency to decide not to recover debt, basically at any time. I think that is important. We have seen from some of the high-profile cases that go through our court system that they have the ability to take quite some time for that full process to be carried out. If we simply allow a situation—like the situation that gave rise to this bill—to endure to the very end of the case without giving a victim certainty over whether that debt will then be recovered, that may impact on the person’s ability to participate in the justice process. It may have other unintended consequences. I think those people deserve the certainty that this bill will now give them.

Finally, I reflect on the third provision, which deals with regulations and the ability of the Minister to suggest amendment, by regulation, to incorporate additional circumstances where it would be deemed appropriate, once this bill is passed, to add additional criteria or classes of person. The bill adds important checks and balances to ensure that those powers granted to the Minister will be used in an appropriate way, but I think the power is appropriate. Some of those specific criteria are set out in clause 8 and I note that we always have the backstop check of any regulations made by the Minister by the Regulations Review Committee, which is a fine committee and is chaired very well by Charles Chauvel. He is not even noticing my flattery! I have no doubt that any regulations, or changes made under clause 8, will be under considerable, rigorous scrutiny by that select committee. All in all, this is a bill that I was pleased to consider as a member of the Justice and Electoral Committee. I think that members on both sides of the Chamber will agree that it is a necessary change, and I am pleased to see that we have appropriate provisions contained in the bill to ensure that we will not have to go through a similar process in the future.

DAVID GARRETT (ACT) Link to this

I will take an even shorter call on this bill, the Legal Services Amendment Bill. I will focus on clause 7, which talks about the ability of the Legal Services Agency to decide not to recover legal aid debt in certain circumstances.

During question time in the House a week or so ago in the previous sitting, the honourable Attorney-General acknowledged in answer to a question of mine that every dollar of criminal legal aid was one dollar less that was available for civil legal aid. The example I used in that question, just off the top of my head, was persons—and I have had clients in this position, sadly—who need to try to recover the losses they have suffered from leaky buildings. The sad reality is that the vast majority of criminal legal aid is never recovered. The write-offs that occur now, and that will occur to a greater extent under the new section 36A to be inserted in the Legal Services Act by clause 7, will apply to criminals in the most part.

I question whether we should allow people like Mr Graeme Burton—the “Mr” just slipped out there—to continue to impinge upon the limited legal aid budget for the appeal that he is planning to bring against his recent conviction for attempted murder. I am told by reliable sources that after his recent conviction for attempted murder, he said: “Christ knows why it took them so long. I would have decided it in 10 minutes.” Nevertheless, he is to appeal that conviction, and every hard-working New Zealander will be contributing to his defence. There is not a snowball’s chance in you-know-where of one dollar of that sum ever being recovered. The honourable Attorney-General noted in his answer to my question that, without the final bills even being in, Graeme Burton’s most recent defence cost $12,000 of taxpayers’ money.

I personally, and on behalf of the ACT Party, am very pleased that to some extent this bill has been overtaken by events. The whole area of legal aid, as the Minister of Justice has just announced, is subject to a review as to who provides legal aid and how it is provided and funded. But it is not uncommon for our party to be saying that a review goes nowhere near far enough. I think we need to examine the assumption we have had for 30 or 40 years that criminals should be entitled to endless legal aid.

I read the other day that many criminal claimants for legal aid—I cannot quote the exact figure, but it was a significant proportion—have received criminal legal aid more than 10 times. More than 10 times they have appeared in court, on the taxpayer, with not a snowball’s chance in you-know-where of taxpayers ever getting back any of that money. Every single dollar of that money is denied to a client like mine, whom I will not name and cannot name, who is literally on the bones of his backside. He is lucky enough to have had pro bono legal assistance—I have got myself to this point, so I had better continue, I suppose—because he could not afford it. Initially it came from me, but, thankfully, it came from somebody else after I came to this place.

I think it is high time we conducted the comprehensive review that the Minister of Justice is undertaking of this whole area. Thank you.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I rise to support the further passage of the Legal Services Amendment Bill. I guess that in many respects timing is everything. I would not like to agree with anything that the previous speaker, David Garrett, said, for obvious reasons, but the timing of this bill—given the report of the legal aid review, which has recently been released—means that in actual fact we really are not doing justice to the issue. I think that this bill ought to be referred back to the Justice and Electoral Committee for consideration to make the further amendments that will obviously come from the legal aid review. Given that I know that busy Ministers are always looking for passing trains to add carriages on to, I would have thought that this was the perfect carriage to hold on to in the select committee for a wee bit longer before progressing it to this stage. So I was really disappointed to see it on the Order Paper at this stage of proceedings.

I am concerned about a couple of things with this bill. One of them is that the select committee did not address the issue that I raised in the bill’s first reading. It is all very well to look specifically at the victims of crime with respect to coronial inquests, but it actually ignores those who have no one representing them at a coroner’s hearing when the cause of death has come not from a criminal action but from an action that we might describe as criminal in a less legalistic and more pejorative sense. I am talking about what happened at Christchurch Hospital in 1996, where people died who ought not to have died at that time in their lives. The reason they died was systemic failure at Christchurch Hospital, which was identified by a group of courageous doctors who were prepared to put a document together to show the sequence of events that led to preventable deaths.

Four of those families ended up with coronial inquests into the death of their loved ones—a mother, a brother, a father, a husband. They ended up in a coronial situation where everyone in the room but the family was represented by a lawyer. Everyone else was represented by a lawyer: the doctors were represented by lawyers, the Crown health enterprise—that wonderful experiment that we had in the 1990s—was represented by a lawyer, the nurses were represented by a lawyer, and the trainee interns were represented by a lawyer. Everyone was represented by a lawyer. The only people who had no legal representation were the families. The reason they had no one to represent them was that they could not afford the cost of hiring a lawyer to represent them in their case. That meant that the one person who could not be represented was the person who had died. That is what the coroner’s hearing was all about.

I said when this bill was introduced that I felt that it was really important that it did not look just at the victims of crime, but at the broader victims in situations where there were coroners hearings and where it would be appropriate for the Legal Services Agency to say to those family members that it would allow them to access legal aid, that it would not require them to pay it back after the result of the hearing came out, and that it would not test their financial eligibility for legal aid. It is not so much the family individually that is being represented but the memory of the individual who has died. What is being sought in a coroners hearing is the truth. I heard one of the lawyers put it very well. He said it was not so much a court of inquiry; it was a court of truth. People are looking for the truth; it is not a court of blame. He was representing one of the groups that were able to have representation in that hearing. None of my constituents had anyone except me to stand up and represent them, and I was not qualified to do that for them. I have felt very passionately about this matter for a long time. I put it on the Table of the House and I asked that the select committee look at it for the purposes of this bill. I would like the Minister in the chair, the Hon Simon Power, to respond to that.

The second question is the question of the legal aid review and the report that has come out. As the Minister is aware—he mentioned it in the House when he launched the review a few weeks ago—I intended to make a submission on the legal aid review. I made that submission. I went into some detail. I recognise that there are limitations on an Opposition member, who has to do all the background work and who has no officials to call upon in that regard. But I put a bit of effort into it because the concern I had about the legal aid review was that it was not going to take advantage of the two very important structures that I thought we had put in place over not one but several Governments: the Public Defence Service, as far as criminal legal aid went; and, from the civil perspective, the community law centres and the hub that they could provide for communities all around New Zealand. For a lot of people it is the access to the upfront advice that they need to get things on track.

It is also about the big guy against the little guy. The little guy often does not get the chance to have his case heard. In many respects when a number of little guys have been hit by the big guy—and members can look at the finance company failures if they want to look at an example of that—we ask how we can provide support for people who should not be subject to individual means-testing to take on a company. So I put together a submission that I thought was pretty broadly on track with how it could resolve these issues. Fortunately, I felt that I had been listened to. Although I did not have a direct input with the reviewers, I felt that I had been listened to and that the report itself reflected that.

But what has undermined the report has been the insistence that we have a much larger scale of fraudulent behaviour within our legal profession than I think can be warranted by way of statement. I think it is really important that the air is cleared in that regard. Margaret Bazley unfortunately stated in her report that up to 80 percent of the lawyers in one District Court’s jurisdiction—up to 80 percent—have been involved in unacceptable practices. I think that statement cannot stand. No evidence in the report backs it up. It is unfortunate that it has been said, because it undermines the quality of the recommendations that I would like to see supported.

I think this is an important opportunity for the Minister to take the time to address some of those concerns in the context of this bill. We always wish that we had time on our side, but in this particular case I think we could take a little bit more time. The Legal Services Amendment Bill could be an ideal opportunity for us to gain some very quick amendments that could be made. I would hate to end up with what will inevitably be an Erebus report - style approach as to whether people can be found guilty of things they have not been charged with. That will undermine the credibility of the report. I would rather see the Legal Services Amendment Bill as an opportunity to tidy up some of the elements of the legal services provisions that we agree on, on both sides of the Chamber, and move on, to the benefit of all concerned. I would like to hear the Minister respond to those two particular points.

Hon SIMON POWER (Minister of Justice) Link to this

I am happy to respond to at least two of a number of the issues that have been raised by the member, who rightly states that she has not only made a submission but followed up with me on some of the issues that have been raised in the report, amongst other things, in very recent correspondence relating to work that is ongoing in the criminal justice area. In respect of two or three items that the previous Government placed on the table as needing to be remedied as a matter of specific and very narrow amendment, I think it is important that we do deal with these issues quickly. I note that the party opposite has agreed to support the legislation.

I am reluctant to halt the progress of this bill while much broader work is being undertaken about the Legal Services Agency and other matters relating to legal aid. Part of that is because of the very matters the member has raised, which are primarily about the Public Defence Service and the use of community law centres. I think I am right in saying, but I stand to be corrected, that in recent correspondence the member indicated that she was quite pleased with where the report went on those issues. I do think there is broader work to be done, but I do not think that this bill would be the appropriate vehicle to deal with such structural work, as opposed to two or three quite narrow points relating to eligibility, and to representation at coronial hearings and Parole Board hearings.

I am aware of just how big a task we have ahead of us in respect of some of those recommendations. I note that the member has been actively involved not just in making a submission but also in offering to have discussions with the Government about how that restructuring and realignment would look, particularly with her interest in the area of the Public Defence Service and community law centres. I welcome that, and I will be having those discussions with the member prior to Christmas.

Hon DAVID PARKER (Labour) Link to this

I rise to take a call in support of the Legal Services Amendment Bill. I would like to address two points. The first relates to coronial hearings. I think it is very wise that we extend the provision of legal aid in some situations to coronial hearings. As we saw in the case that led to this particular provision, which was the murder of Karl Kuchenbecker by Graeme Burton, the family of Karl Kuchenbecker desired to have representation at the coronial hearing. Of course, they were up against the very well-funded actions of the State, which was able to appear, through the police and the Department of Corrections, at that hearing with legal representation.

It is not uncommon for coronial hearings to consider how the State has handled events, and criticisms of the State can sometimes properly be made for its failure to comply with its own intended processes. The murder of Karl Kuchenbecker by Graeme Burton is one example of that. It became clear through that coronial hearing that mistakes had been made by the police and the Department of Corrections, the effect of which was that Graeme Burton was still out on parole from earlier offences. He might not have been on parole—I might be wrong there; he might have been in breach of probation.

JOHN BOSCAWEN (ACT) Link to this

I do not intend to speak for a long period of time, but I want to make some follow-up comments to the comments made by my colleague David Garrett. It was very sad, to be honest, that no sooner had David Garrett made his comments and sat down, he was followed by the Hon Lianne Dalziel, and if I heard the Hon Lianne Dalziel correctly, she said words to the effect that she could not possibly agree with anything Mr Garrett had said.

I guess the point Mr Garrett was trying to make was that the Government has a fixed budget for legal aid, that the first charge on that budget is for criminal legal aid, and that what is left over is for civil cases. What Mr Garrett was saying was that the more we spend on criminal aid, the less there is for civil cases. What made Lianne Dalziel’s comments surprising to me was that she then went on to talk about the coroner’s inquiry into deaths at Christchurch Hospital in 1996. Clearly, as a Christchurch MP she is aware of the parties involved. She would be intimately aware of the distress that was caused to the families of the victims. She talked about the legal resources—the legal aid—that was available to the hospital, the legal aid that was available to the doctors and to the registrars. The point I took from Lianne Dalziel’s speech is that the only parties that were not represented by lawyers were the families of the victims. Am I correct? Lianne Dalziel is acknowledging that the point she was trying to make is that the only parties not represented by lawyers at that coronial inquiry were the relatives of the victims. The point Mr Garrett was trying to make is that it is those very people, those very ordinary citizens, who have a need for legal assistance and cannot get it under the current arrangements. They cannot get it, because the more money that is spent on criminal legal aid the less money there is available for civil legal aid.

I thought Mr Garrett’s points were very well made, and it was disappointing to hear them so ridiculed and dismissed by Lianne Dalziel when she rose to speak. She is clearly concerned that the people who most need legal representation cannot get it when they need it. Had legal assistance been available to the families of the victims, they may have had better representation at those coronial inquiries.

CHARLES CHAUVEL (Labour) Link to this

I want to take a call to follow up on what was said by my friend and colleague Lianne Dalziel in her earlier contribution on the Legal Services Amendment Bill. Although the Minister of Justice took a call in response to what she said, it was only a partial response. I see that the Attorney-General is now the Minister in the chair, and he might be interested in these comments. I see that he is taking a keen interest in what I have to say, which is always gratifying.

The opportunity this legislation presents is that it comes to the House a week after we received the Bazley report into the legal aid service. As Lianne Dalziel said, it presents a golden opportunity for the Government to stay its hand in implementing the reforms that are contained in this bill and allows for the opportunity to send the bill back to a select committee to have the legislation embrace those parts of the Bazley recommendations that the Government decides to proceed with. They are recommendations that in broad thrust are supported by members on this side of the House, so it seems to me that the Government has an opportunity to progress quite an important aspect of reform, as far as legal aid and general legal services are concerned, without undue delay. I urge the ministry to consider this opportunity and to not just dismiss it out of hand.

The other opportunity that I think debating the legislation tonight affords the House is another one that I hope the Attorney-General will appreciate. I think the lawyers in the Chamber—Amy Adams, Simon Power, and others who might be present—will remember the important case law about commissions of inquiry. Under our system, commissions of inquiry are not designed to find fault with individuals. They are not criminal processes. If this country did not learn that lesson from the Erebus tragedy, it should have learnt it from earlier cases that I know the Minister in the chair will recall. I think the authority is Cock v Attorney-General, as opposed to Clough v Leahy, the contrary New South Wales authority. It says that when we have a commission of inquiry, it is not there to find fault with identifiable individuals.

One of the problems that exists with the Bazley report is the findings Dame Margaret made about lawyers practising out at the Manukau District Court. They are lawyers who work hard in what are probably some of the most difficult conditions in the New Zealand legal system. They have been described as car-boot lawyers and it has been said that 80 percent of them could be gaming the system. It does them a disservice to describe them in pejorative terms and to say that if anything were to be done about them, they would just take vigorous legal action so there would be no point.

I urge the Minister to use this opportunity—the earliest opportunity the Government has had—to reply to those allegations, to dissociate the Government from them, and to restate the position that these people are deserving of respect from the House because they are an integral and important part of the provision of justice in one of the hardest legal markets that exists in New Zealand. It would be a real shame if the Government did not use this opportunity. It is the earliest opportunity since the presentation of the Bazley report, which dealt with matters that are intimately connected with this bill, as my colleague pointed out. It is an opportunity to make a definite statement—which I hope that we will hear from the Minister in the chair, the Hon Simon Power—that these lawyers are well respected, that the Government does not associate itself with the pejorative comments that were made about them, and that Dame Margaret had no evidential basis on which to make those comments. They should be rejected.

SIMON BRIDGES (National—Tauranga) Link to this

I move, That the question be now put.

JACINDA ARDERN (Labour) Link to this

Thank you, Mr Chairman, for the opportunity to speak very briefly on this part of the bill. I reflect again that the bill we have been discussing this evening is narrowly defined. I think that my colleague Lianne Dalziel has covered some of the areas where we would have hoped to have had a greater discussion with the Minister of Justice over the other areas that perhaps could have been picked up by this bill.

I think it is important when we are considering the overall coverage of the Legal Services Amendment Bill that we consider other issues raised not only within the select committee but also during the more general discussion in the Committee of the whole House about the place of victims in our criminal justice system. There has been the very difficult discussion about victims, when they are part of our criminal justice process. We need to find the balance between ensuring that they are empowered enough and are given support by the State to have their say—whether that includes legal support through all steps of the process—and the very difficult consideration of making sure that when that happens, all sides are able to have access to legal support during the consideration of a criminal justice case. That also means managing the expectations of victims who are involved in the proceedings. No one in this Chamber would argue against that being a very difficult balance to reach, because we are dealing with weighty, emotive issues when we consider victims’ rights, but I think that a very pertinent point was raised by my colleagues.

After listening to the discussion here this evening, I will raise the additional point that other areas of our law are outside the scope of the Legal Services Amendment Bill, and I think that additional consideration should be given by the Minister and the Government as to whether in future we will further the other opportunities that we have to enhance the role of victims in our existing criminal justice proceedings.

Within the context of this bill, I think it is useful to cross-reference to the Children, Young Persons, and Their Families Amendment Bill (No 6), which still sits on the Order Paper. It talks about the role of the victim in youth justice proceedings. That is an area where the Government would do well to consider again whether in our restorative justice processes, within family group conference processes, there is a place for greater guidance around the role of victims in those proceedings. That matter was consulted on previously by the previous Government and it is, I think, a non-contentious issue. The bill continues to sit on the Order Paper. I would urge the Government, given that we are debating the role of victims in our justice system this evening, to consider whether that bill should be progressed now that this one has been dealt with by the Government.

There is also the matter of the existing legislation we have in place that gives guidance to Government departments and to those who are working at the coal-face of our criminal justice system on how to deal with victims who are coming through our criminal justice system. It is one thing for this House to lay down its expectations, be it through the Victims’ Rights Act or the charter that followed, but it is another thing to ensure that those expectations are being adhered to, to the level that we in this House would expect. I know that many members of this House will probably have heard, in their time as members of Parliament serving the community, of examples where victims, particularly those who may be giving evidence in court proceedings, have not had the support that we in this House would expect them to have. They may not have had a lay advocate or a lay support person. They might not have had explained to them the process they are about to go through. They may have been mistreated or cross-examined beyond what we would consider to be reasonable. I think it is important that beyond just laying down the framework for our expectations, we also ensure that those expectations are being adhered to on a day-to-day basis within our criminal justice system. I think we would be wise to consider that within the context of this bill.