Legal Services Amendment Bill (No 2)

Hon MARK BURTON (Minister of Justice) Link to this

I move, That the Legal Services Amendment Bill (No 2) be now read a third time. Before briefly discussing the bill I will refer to a small matter that came up during the Committee of the whole House. A possible technical issue was raised. Chris Finlayson identified some references in the bill to the Law Practitioners Act 1982 that did not take account of the Lawyers and Conveyancers Act 2006, which received the Royal assent, as he correctly pointed out, on 20 March. However, that Act does not commence until a date is set by Order in Council. I anticipate that to be at least 18 months from now. The references in the Legal Services Act 2000 to the Law Practitioners Act 1982 will be amended at a later date, to coincide with the commencement of the Lawyers and Conveyancers Act 2006. I thought it was worth clearing that up for the member.

This bill demonstrates the Government’s commitment to ensuring that an inability to afford a lawyer is not a barrier to accessing justice. The bill introduces changes that will update the financial eligibility criteria for legal aid, which have not been reviewed since 1987. These reforms are important, because access to justice is fundamental to the rule of law and therefore to the integrity of our justice system. Under regulations to be made once the bill is passed, the pool of people eligible for legal aid will increase from around 765,000 to some 1.2 million people. At the same time, the bill introduces a mechanism whereby financial eligibility thresholds will be regularly updated to ensure that they keep pace with increases in the cost of living.

The bill makes it easier for people to know whether they are financially eligible for legal aid by simplifying the income and capital criteria. A number of improvements have also been made to the merits test for both criminal and civil legal aid. The changes to the merits test provide greater guidance to both applicants for legal aid and decision makers as to whether a particular matter does qualify for aid.

These are significant improvements that will enhance the transparency and, I believe, the consistency of legal aid decision-making. The provision of State-funded legal aid involves a careful balance between ensuring access to justice and the cost-effective operation of the scheme. It is for this reason that for a number of years the legal aid scheme has required the repayment of the costs of legal aid by those who are able to do so. Under these reforms a greater proportion of aided persons will repay some or all of the costs of legal aid.

The bill introduces a more transparent repayment regime whereby aided persons are better able to assess the potential costs to them personally of legal aid, and I think that that transparency is a significant and important improvement in the scheme. This will ensure that appropriate financial incentives operate with regard to the use of legal aid. Recovering legal aid costs also expands the pool of money available, of course, for other legal aid applicants. The bill contains a range of measures designed to improve the Legal Services Agency’s ability to recover legal aid debt. The agency is now able to require a person to commence or recommence payment of a legal aid debt, for example, if the agency considers that a person’s financial position has improved to a level that allows repayment, and it uses incentives to encourage the repayment of debts, such as the ability to charge interest on debt if a person defaults.

Entitlement to legal aid is an important benefit, which significantly more New Zealanders will be entitled to access under these reforms. It is therefore important that the agency receives good-quality information on which to determine a person’s eligibility for legal aid. A number of improvements have been made in this regard. For example, an aided person or his or her lawyer must advise the agency of any increase in financial circumstances that could affect the aided person’s eligibility for legal aid. This obligation has been further clarified by the Justice and Electoral Committee. The bill now makes it clear that the obligation to inform the agency is not prevented by legal professional privilege.

Overall the bill introduces greater transparency in the form of simplified financial thresholds and clarified merits criteria. The cost-effective administration of this expanded legal aid scheme is supported by a new repayments regime and improved agency debt management tools. The regular updating of the new financial eligibility thresholds will safeguard access to justice, both now and into the future. Accordingly, I commend the bill to the House.

JUDITH COLLINS (National—Clevedon) Link to this

I rise on behalf of the National Party. We will be opposing this bill, and we do so with quite heavy hearts, because many of us here are lawyers. I would like to have my interest as a lawyer noted in this area. I am one of the lawyers in this House who has undertaken legal aid work for people—mostly in the family and employment areas and also in the civil area. Certainly, I know that there are some other members of the House who have been criminal legal aid lawyers, as well. Legal aid is one of those political hot potatoes that will never get us a vote anywhere, and I think we can all agree on that as MPs. But what we do need to know and to keep in mind is the fact that legal aid is an absolute necessity if there is ever going to be any sense of justice when someone is involved in proceedings, particularly when the other side of the proceedings is, in fact, the Crown, or, in other words, the State.

Of all the areas of legal aid, criminal legal aid is the one that many people in society feel is a rip-off. In one sense, they are right. It is a rip-off in that the people who actually have to undertake the work are ripped off badly by the system. Why is it important that people who are accused of being criminals—and in some cases are the most desperate criminals—are properly represented? It is a matter of access to justice. It is an issue that requires us to consider the costs to society, the costs to us as a country, and the costs to the person himself or herself when an innocent person is convicted of a crime. Those costs are huge, and that is one of the reasons that the National Party is opposed to this bill. We do not think it goes far enough.

National members do not think the bill addresses the very real issue, which is that, in both the civil and the criminal legal aid areas, lawyers are simply voting with their feet and saying they do not want to be part of the legal aid system. It has a lot to do with the bureaucracy. Having done some work in that area, I can say that the bureaucracy is huge. It has quite a lot to do with the fact that payments to the lawyers often come many, many months after the bill has been rendered. In fact, often the attitude towards the lawyers is that they are being done a favour when, actually, in many cases, the lawyers are undertaking work for well below the cost of running a business. They do so because they have a very, very real intent towards doing the best for their clients. I think that is something that is often forgotten by those who have only a very cursory experience in the matters of the law and the legal profession. It is a profession in which a lot of people give an awful lot and are just about sick of doing so.

What we do know is that this bill aims to increase the number of people who will be eligible for legal aid to some 1.2 million New Zealanders. That is a huge figure. It is about a quarter of the population. It is a very, very large figure, and someone has to pay for it. Unfortunately, in this bill, it does not seem as though there will be enough money to pay for it adequately. The top rate for Crown solicitors—those with all the power, all the expertise, and all the resources of the State behind them—is $192 per hour plus GST, and that is updated every year. I ask members to compare the rate of $192 an hour plus GST with what is currently paid and is available to our top legal aid criminal lawyers, which is $130 per hour inclusive of GST. So that is where we are starting to get down to it. It is $121 an hour.

People might think that is quite a lot of money. However, the way the criminal legal aid system works, and the way the civil legal aid system works, an hour does not necessarily mean an hour. An hour may well mean a day. I say that because particular rates are allowed for particular jobs. So, in other words, somebody in the Legal Services Agency has made a decision at some point that a particular job should take only X number of hours. But if a lawyer is acting for a client who is mentally distressed, who has been traumatised by being brutalised by family members for years—by a father or husband or whatever—sometimes it takes significantly longer to do the job and do it properly. If a lawyer is acting for someone who is having his or her very first brush with the law in a criminal matter, that person may need significantly more assistance and aid than the current legal aid requirement will allow.

I understand that in a State-paid system, a taxpayer-paid system, one cannot please everyone and cannot always have all the money that is there for paying for oneself. But, unfortunately, what does tend to happen is that any incentive or ability for the lawyer to be able to do anything to help that client is something that the lawyer must pay for. For that privilege—for helping out the client in a pro bono way for the good of the client and for the good of the justice system—the lawyer does not get treated as though he or she has done something good for the legal aid system; those lawyers are often treated as though they have done everything bad and are trying to claim for something they should not claim for. So, quite clearly, we have a situation at the moment, which the New Zealand Law Society has made very plain to this Government, where lawyers are saying: “We will not do this work anymore.” Many of them do not want the hassle and are prepared to work less for more by doing work privately. Frankly, as one of them in this House, I cannot blame them.

I also wonder about what has happened about the great public defender scheme and how that will be affected by this bill. So much was made of that in the Counties-Manukau area, yet my contacts in the criminal lawyers’ association tell me—

RUSSELL FAIRBROTHER (Labour) Link to this

I listened with care to the speech from Judith Collins, and I find I have to agree with many of the points she makes, having been a lawyer who has practised in the legal aid field, in both criminal and civil law, and having a spouse who practises in the civil area. But the points she makes are really for a different debate, and the National members have fallen short in this Chamber and in the course of debating this bill by deflecting the argument away from the issues in the bill to an issue of more money for lawyers.

This bill is not about fees; it is about widening the access to justice, about widening the eligibility for legal aid, and about regaining for taxpayers some of the money spent on the large legal aid bill. And this House should debate those matters, because it has never set the level of fees—certainly not since Geoffrey Palmer came in, in 1982, and by regulation increased the amount payable in legal aid at that time. Subsequent to that, the setting of fees moved away from the House to the Legal Services Agency or its various predecessors. That was during the time of the National Government, as well. It is well to remember that eligibility for legal aid has not been widened since 1987. It was not touched by National when it was in Government. What National did, in fact, was to reduce the legal aid rate in 1996. If we reflect on that history, we see the reason for some of the mess we are left with.

The emphasis that National speakers gave, in deflecting this debate to one of fees rather than of widening the access to justice, is a sad reflection on lawyers themselves. To argue in this House that an hourly rate of $121 net, exclusive of GST, is not enough for a sole practitioner to operate on is to illustrate the avarice and grandiose attitudes that many lawyers have. I had the misfortune to be invited to speak to a lawyers’ function before Christmas last year in Auckland. I went, thinking it would be a convivial meal among legal aid lawyers. It was held at the Northern Club, with suited men offering their services to wait on tables, and it was the height of luxury. I became angry at what I saw as an abuse of the public purse by those people, who were complaining at their impecuniosity. One of my critics, who it turned out was a legal aid lawyer, happens to be the spouse of a judge, so the combined household income of that family would be close to half a million dollars. Yet his complaint was of inadequate income for the household.

The legal profession suffers from a greed attitude, and if the profession continues to deflect the arguments from access to legal aid on to the issue of fees, and forgets that it also has a public-good element, then this Government or any successive Government may be forced one day to step into the gap and take responsibility for the legal services the profession is failing to provide. No one can tell me that $130 an hour is not enough for a reasonable person to run a practice on and live off. A practice does not require buying expensive stock in trade; no hardware is required in the cupboard in order to practise law. It is a matter of intellectual property and a little knowledge of information technology. Law can be practised out of one room of a house, or a garage. Many lawyers practise law out of the back seat of their car, because it is such a fluid profession when it comes to servicing the legal aid community. So no one can stand here and tell me that $130 an hour is not enough to live off. It is not enough, though, when the profession is ratcheting out of the private industry hourly fees of $500-plus. Every lawyer wants to live like his or her peers, and as many very competent lawyers choose to practise legal aid, they look with some envy at the high rate of income that less competent lawyers drag from the private sector.

The level of remuneration is an issue for the profession to address. It is an issue as to the public good associated with practising law, and if the profession forgets its public-good obligations, then this House may have to move to replace that aspect by further legislation. I would regret that day, but while members of this House stand up here and cry “More for me! More for me!” and there are people in our community working for $12 an hour, then those members have no sympathy from me.

The instances given to this House by Judith Collins are true in one part, but not true in another. An experienced lawyer who is competent in the area can negotiate with the Legal Services Agency for a rate that is appropriate to the particular trial, and there are reports of that in the New Zealand Law Reports. For example, the lawyers of Paul Darvell negotiated fees of something like $320,000 over a long trial, but that was for both a senior and a junior lawyer. One of the lawyers rejected that, because it was not enough. So it is possible to negotiate with the Legal Services Agency for a fee above the guideline rate, and it is possible to negotiate with the agency for a longer preparation time.

The analogy between defence lawyers and Crown lawyers is basically flawed. The Crown must accept every instruction that comes from the police to the Crown. A defence lawyer or any other lawyer in private practice can choose the areas in which to market his or her services. If lawyers choose to do solely legal aid work, then they do so in the knowledge that they will not have flash offices or the lifestyle of their more affluent colleagues who go into the private sector. Or defence lawyers can choose to mix legal aid with private instructions—a choice not available to Crown solicitors. To run that comparison of defence lawyers with Crown solicitors and then say Crown solicitors are backed by the resources of the State is to ignore the choice that is available and to ignore the different standards and obligations that apply. A Crown lawyer has to prove every aspect of a case; a defence lawyer has to pick one weakness and home in on that. Defence lawyers can sit tight on a long trial, make only one speech, and win a case. Those are different responsibilities—it is to compare apples with bananas rather than apples and apples.

It is time we addressed the issue of fees front on. I simply say to the Bar that unless the legal profession revisits its public-good aspects there will continue to be “more for me” debates, as we have heard in the House from the National members, and successive Governments will be left with the obligation to move further to replace the public-good aspect neglected by the profession, as reflected in the National Party’s arguments in this debate. This is a good bill, and the country will be fortunate in its passing.

RON MARK (NZ First) Link to this

I rise on behalf of New Zealand First to take a short call on the Legal Services Amendment Bill (No 2) and to express that we will be supporting the passage of this bill at the third reading. There is not a lot to be added to the debate. I think the bill has been covered quite broadly, but I will take a little time to express the views of one lawyer whose opinions we do respect here in New Zealand. In this debate, as Mr Fairbrother highlighted, National has chosen to focus to a large extent not on access or increased access to legal aid. I have to say that legislation that increases availability of legal services to something like 450,000 New Zealanders who otherwise would not have qualified has to be good legislation. At the core of the issue is the access to quality defence, quality legal advice, and quality legal support for those people who most desperately need it.

The person who wrote to me pointed out that section 24 of the New Zealand Bill of Rights Act 1990 makes it clear that “Everyone who is charged with an offence—…(f) shall have the right to receive legal assistance without cost if the interests of justice so require and that person does not have sufficient means to provide for that assistance;”. That is correct. So, on that basis, women who have been beaten up by their husbands, children who are the subjects of sexual abuse by their families, and people—young people, usually—who come up before the courts for the first time are protected by a lawyer. That is correct.

Legal aid rates were increased by the New Zealand First - National coalition Government when the Rt Hon Winston Peters was Treasurer, in 1998. But here is the rub: in 1999, once National had control of the Government benches by itself, it reduced the rates back down to the 1996 levels. That is fact. That is interesting, and the person who wrote to me pointed out he knew of no sector in the wider community that is still working today for 1996 pay rates. That is the point that many in the legal fraternity are pointing out today: the Legal Services Agency has not renegotiated those rates up.

KATE WILKINSON (National) Link to this

I will start by thanking Ron Mark for his very flattering endorsements. On behalf of National I rise to oppose the bill, for many of the reasons that my colleague Judith Collins has given, but it does go deeper than that. This bill significantly raises the financial thresholds of legal aid eligibility to such an extent that 1.2 million New Zealanders will now be eligible for legal aid—an increase of some 450,000. The importance of State-funded assistance has long been recognised in New Zealand, both from within the legal profession and from without. It is all about providing access to justice for those who are unable to afford it themselves. But access to justice under this bill is, paradoxically, the very issue being threatened. The right to legal representation is worthless if effective representation is not available.

One could even argue that this bill, by its very nature, breaches the New Zealand Bill of Rights Act, which provides for the right to counsel in the context of criminal proceedings, and to natural justice in criminal and civil proceedings. This bill actually puts such rights in jeopardy. Making more people eligible for legal aid is meaningless if there is insufficient will and ability amongst the legal profession to offer legal aid services. This bill is worthless without lawyers. But this bill is not just about lawyers; it is about access to justice. There simply must be enough lawyers willing to do legal aid work for nearly twice the number of legal aid recipients. If there are not enough lawyers for the existing 750,000 people now eligible for legal aid, then how on earth will there be enough lawyers for nearly twice that number?

Opponents argue, and have argued, that we want more money for lawyers. It is the envy-type mentality that cannot see that if it is not made worthwhile for lawyers to undertake legal aid work, then they simply will not do it. Why should they? Legal aid work is not compulsory; it is optional. Whilst lawyers do recognise a professional obligation in providing legal aid services, they are not a charity. There is a fundamental obligation on the State to provide adequate funding to ensure that access to justice is not threatened. Ethically, lawyers do not have to undertake legal aid work. Some do not, but many do, out of a sense of professional commitment.

We are aware that this bill provides that the legal aid rates may—and I emphasise “may”—be reviewed from time to time. What does that actually mean? It is uncertain and it provides no assurance whatsoever. It gives no comfort to anyone that the rates indeed will be reviewed, and reviewed in the right direction.

The Ministry of Justice, in a 1998 report on the reform of legal aid, considered the key features of an effective legal aid system to include equity, efficiency, administrative simplicity, and timeliness. None of those aspects seem to have been included in this bill. The report stated that the principle of equity has at its centre the concept of equality of arms, and identified that it was a well-established principle that applies not only to procedural matters during a trial but also in terms of the hourly rates paid to prosecution and defence counsel.

Equality of arms is an essential aspect of the right to a fair trial. In criminal proceedings, a person charged with an offence must have a reasonable opportunity to prepare and present a defence on an equal footing to that of the prosecution. It is wrong for the State to bring criminal action against its citizens, then to restrict their rights to defend themselves. Well, this bill does exactly that. It is not equality of arms and it is not access to justice when criminal legal aid lawyers, and therefore their clients, are at a significant disadvantage to their prosecuting counterparts. They have fewer resources. They do not have the resources of the police in support, prosecutors are allocated more paid hours for preparation, and the remuneration rates are less.

This is not an argument that criminal legal aid lawyers should be paid commercial rates, but there is an argument that there should not be such a significant lower differential between Crown and defence rates.

The Legal Services Agency wants to establish a pool of competent legal practitioners who can provide legal services, to ensure the availability of competent legal practitioners who can provide adequate and appropriate legal advice, and to improve the availability and quality of legal representation, advice, and information. This bill does none of that.

Anecdotally, there is a shortage of lawyers who are prepared and able to undertake legal aid work. In previous addresses, I have given examples of a survey of family law legal aid lawyers that was conducted recently. Only 10 percent of all firms in the region indicated a willingness to undertake legal aid work—that is, 30 out of 306 firms. I refer also to the firm that in no uncertain terms regretfully had to cease legal aid work for reasons of remuneration, but also, perhaps more important, because of burgeoning, burdensome bureaucratic requirements.

Only two Blenheim lawyers do legal aid work. A headline in the Marlborough Express of 14 March 2006 says “Struggle for legal aid may get worse” and the article states: “The Community Law Centre is already struggling to find Family Court legal aid lawyers and expects things to ‘quickly get worse’.” We have a problem with having sufficient lawyers to do the work, and this bill does not address it. Another article states: “Law firms refusing legal aid cases”, and that is the article that states that only two Blenheim lawyers are doing legal aid work.

Experienced lawyers are withdrawing from legal aid work. In the interests of access to justice, they need to be encouraged back to do legal aid work. Young and inexperienced practitioners no longer see legal aid work as a viable career option. They need to be encouraged. The legal aid system must have at least some inviting features to ensure that it is appropriately, adequately, and professionally resourced. We need able, experienced, and competent lawyers in order to avoid miscarriages of justice and to avoid appeals that will require even more legal aid payment and will be at more cost to the taxpayer.

This issue is not just about criminal work. Victims of domestic violence, or any clients for that matter, should not have to shop around for a lawyer who is willing to do legal aid work. Clients who are desperately in need of help and justice, clients who need quick and proper access to legal representation, and clients who need the urgent protection of our laws are the clients who are being disadvantaged, and who are not being helped by this bill. These clients are being denied their right of access to justice, simply because the supply of lawyers who are ready, willing, and able to undertake legal aid work is dwindling.

JEANETTE FITZSIMONS (Co-Leader—Green) Link to this

The Greens are supporting this bill. The key feature of the bill is the widening of eligibility criteria for legal aid. Some 400,000 additional people will become eligible for legal aid. Income thresholds for legal aid have not changed since 1969, resulting in ever-increasing numbers of lower-income New Zealanders becoming ineligible for legal assistance.

For many, access to justice has become dependent on the ability to pay. The bill raises income thresholds and allows them to be set by Order in Council, rather than by a lengthy process through Parliament. However, the increases in eligibility do not go far enough. The passage of this legislation opened up the potential to increase collective eligibility for legal aid, expanding the coverage into socially and ecologically useful areas. More often than not, the only thing standing between an ecologically sensitive area and a wealthy developer is an impoverished hapū or community group. The need for environmental legal aid remains unanswered by this bill.

The Greens were very proud to have got the legal assistance fund through the Ministry for the Environment in 2000, but it is a tiny amount of money—well under $1 million for all for the year. There is a cap of $30,000 per case, which does not go very far and is available only for cases in front of the Environment Court. It was a good start, but we need to go further and we need to integrate environmental legal aid with criminal justice system legal aid.

The way legal aid is to be administered under this bill will make the abuse of the service more difficult, due to a better assessment of assets. People will be less able to hide their assets in order to qualify for legal aid. The Greens support the debt management provisions that the new legislation introduces. Where a debt exists there should be effective mechanisms to recover it. But debt recovery should not be the main thrust of the legislation. Legal aid should not become just a legal loan. We are talking here about the poorest people in New Zealand, who are dependent on legal aid.

The Greens also support the funding set aside for private mediation and restorative justice initiatives. It is obvious New Zealand is facing a crisis in our corrections system, and the current punitive system is simply not working, especially for Māori. Mediation and restorative justice are two initiatives that the Greens see as a positive political development. The Greens are also supportive of the changes to the interests of justice consideration, by the additional consideration of previous convictions. This is a significant reform in the interests of first-time offenders, especially young people, as it supports the principle of early prevention. It is very important for youths to avoid a first conviction, because it can lead to what Kevin Campbell has called a “spiral of offences and convictions”.

Although we wish that in some respects the bill went further, we are supporting its passage through the House.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

There is an expression in Te Ao Māori: “Me he maonga āwhā”, which describes a lull in the storm, like a sudden pause in a furious debate. This bill returns to the storm of debate that has been in somewhat full lull since the torrid tirades that took place in this Chamber last night to justify locking up 12-year-old children in jail. The bill before the House last night promoted a view that the best solution for social dysfunction is punishment and seclusion from society. The bill before the House this afternoon is simply a variation on the same theme—another promo for prison.

The Māori Party continues to oppose this bill, because although it is branded in such a way as to address the issue of access to justice, it instead perpetuates the ridiculous “lock ’em up” thinking that has led to the spiralling arrest, conviction, and imprisonment rates that bring international shame to this land. With this bill for criminal legal aid, a new test will be introduced that places emphasis on likelihood of imprisonment. The bill as reported back from the Justice and Electoral Committee declared that when considering whether to grant an applicant legal aid, the agency must have regard to whether the applicant has any previous conviction, whether the applicant has been charged with, or convicted of, an offence punishable by imprisonment, and whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment.

As Mr Harawira asked during the second reading debate, is it right that the Legal Services Agency usurps the role of judge and jury? What cultural values will be called into play? Our key concern with this bill, as with the bills in this suite of law and order legislation, is that it reinforces and endorses an approach that focuses on imprisonment rather than on restoration and healing. Instead of putting up only one system, perhaps it is time for the administration of legal aid to represent other forms of litigation. I talked last night about my experiences with restorative justice approaches. The success of restorative justice is dependent on the ability to produce a climate of reconciliation and healing, together with the acceptance of responsibility that a wrong has been done and needs to be set right. It is also dependent on a demonstrated and genuine attitude of commitment from all parties present, as well as on regular monitoring. These are strategies that can work—strategies that do other than increase the incarceration data. If imprisonment is the only answer, we are forever on a downward path of punishment.

There are other systems that Aotearoa could turn to for precedent. For over 1,000 years Māori have had their own criminal justice system—a system based on social responsibilities that link people to the wider community. At the heart of the system was the recognition that everybody had a responsibility to the wider community. Important too was the belief that all people have a tapu that is not to be abused by others. The Pacific practice of ifoga is similar to marae justice. The offender and whānau take responsibility for the crime and work to find a point of reconciliation in order to restore the mana of the victim and his or her whānau. Another example is that of the Navaho Indian tribe, who have their own police force, courts, and prisons. Jurisdiction is shared with the State, but the philosophy and the procedure are Navaho. Over the Tasman, Aboriginal courts and circle sentencing courts are being trialled, with the broad aims of reducing Aboriginal overrepresentation in prisons, reducing the incidence of failure to appear in court, and reducing the rates at which court orders are breached.

How do we today put a stop to the criminal overrepresentation of Māori in the justice sector? Perhaps part of the answer lies in alternative models to seek restorative justice. The Māori Party has promoted the idea of a cross-party review of prisons and justice, and we will join with Nandor Tanczos and others to begin this process. The Māori Party has always believed in the power of the collective, and, indeed, has called for cross-party collaboration on issues such as the methamphetamine, or P, problem, peak oil, and addressing family violence. Indeed, we issued our own challenge on 15 February 2006 about developing long-term community involvement in addressing offending. As I said on that day, the solution to our overcrowded prisons and our excessively high per capita prison population lies within the community and not in bricks and mortar. We have to return to our communities—the very essence of our society—for both the short-term solutions to prison overcrowding and the long-term solutions to decrease the incidence of crime in Aotearoa. That is the big picture.

I noted the release slipped out by Damien O’Connor yesterday that stated he welcomed the review into the regional prison development costs at the Spring Hill and Milburn prisons. Applying scrutiny to this project is commendable—indeed, it is about time—but how much better it would have been to review the whole system once and for all. Just over a month ago the Salvation Army called on politicians to show what it called “ethical courage” and sign up to a multiparty accord that would stop the issue of crime and punishment being a political football.

In its report on prisons and reoffending, the Salvation Army made a number of recommendations, including the development of a multiparty agreement to deal with issues of crime and punishment in a non-partisan way. Major Campbell Roberts, director of the Salvation Army’s social policy and parliamentary unit, commented: “Getting tough on crime, longer and longer sentences might sound good but in fact they are ‘do nothing’ choices.”

Major Roberts challenges this House with his statement: “Emotions will always play a part in any discussion of crime and punishment, but our politicians should be leading us beyond rhetoric, not encouraging it. Let us have reasoned, researched debate about positive ideas. If we don’t then as a society we are doomed to spending more and more money on failed holding tanks. Prisons don’t make us safer, they just make us poorer in every way. It is time for some principled, courageous leadership to turn prisons around.” Now is the time to lead beyond rhetoric and to snap out of the mindset that prison programmes actually combat crime. Finally, I am a firm believer in the view: “E kore tana pūweru e mākū i te pata ua!”. In other words, a storm, a shower of rain, does not need to drench the spirit.

So although we oppose this bill, I want to leave the House with three ideas to consider. The first is that I am aware that the Legal Services Agency has introduced an annual survey of the supply, distribution, and assignment to legal aid providers. The Māori Party believes this will be a valuable monitoring tool for all parties as to the progress we can achieve in turning round the disproportionately high imprisonment rates. The real measurement of success in this new policy will be not in how many legal aid grants are given out or in how much funding legal aid providers receive; it will be in the downward trends—how many people are prevented from imprisonment, how many offenders are inspired not to reoffend, and how many families are saved from the impact of crime. The second good idea would be to vote down Ron Mark’s bill to build a prison for 12-year-olds. Finally, the Māori Party joins with the Green Party and the Salvation Army to call, again, for a cross-party accord on reducing crime.

DAVID BENNETT (National—Hamilton East) Link to this

The National Party opposes this bill, for very good reasons. The whole concept of legal aid is based on providing a fair level of representation for those in need of legal assistance. The most vulnerable in our society need a standard of representation to enable them to defend themselves. That is National’s concern about this legislation. The bill does not address the fundamental concept of ensuring adequate representation. The bill fails to provide an adequate method and process for the calculation of legal aid to reflect the costs of providing such services.

The bill extends the eligibility of legal aid and allows a further 25,000 grants of legal aid per year. The thresholds will be regularly updated by linkage to the consumer price index. But there is no such regular update for the cost of the provision of the legal aid services. There needs to be a similarity between the eligibility for, and also the payment of, legal aid services. The legal aid segment of the legal profession is in crisis. The Government should be addressing the provision of legal aid services, not just the criteria for accessing those services.

One may ask: “What then is the problem?”. Well, it is a matter of: “If you pay peanuts, you get monkeys.” For a number of years under this Government, legal aid lawyers have not had an increase in their legal aid fees. Add to that the high cost of administration of legal aid cases, and there is then no incentive for lawyers to undertake this work. The result is situations such as we heard in this House of defendants preferring to go it alone rather than take on the risk of counsel they do not trust. This is compounding the problem, as even the most needy are having to defend themselves. So we get a situation where vulnerable clients are getting insufficient representation.

Some say that it is an issue for the profession and that the profession should have the ability to set the fees. If that is the case, why was that not put in the legislation? We do not see in the bill that the profession has the ability to set the fees. It is simply not good enough to increase the eligibility without at the same time dealing with the provision of those services.

We welcome any moves at a select committee to deal with this issue. So it is appropriate that Ron Mark has approached that issue and said the opportunity is there in the future. We encourage him to continue with that process.

A novel approach suggested in this House was to make it a requirement for lawyers to serve as legal aid counsel at some point in their career. Although at first glance this may seem appropriate, it has a number of problems. First, most people in the law have no intention of undertaking, and will never undertake, court work. In fact, it is possible to go through law school without even doing courses such as evidence. This reflects the fact that the law is becoming a generic degree, and also that most of the work is actually in commercial, conveyancing, and specialist fields. A mandatory requirement could add to the injustices, as untrained and uninterested lawyers may be required to represent clients.

Secondly, any attempt at specifications will be flouted. Lawyers, traditionally, will find ways around any rule. They will find ways and means to make themselves unavailable, and even if they are made to do the work, they will not represent the client with the conviction the client would require.

Thirdly, as a matter of fairness and equity, lawyers cannot be expected to provide a public service requirement that is not required in other professions. Do we require accountants to do community group audit work each week for free? Do we require engineers to work for Transit one day a week at reduced rates? No, we do not. We do not expect these things, so why should we expect them from lawyers?

Effectively, we would be requiring a bonding regime for lawyers. Typically, bonding regimes are suggested for expensive qualifications, such as medicine, or where there is a shortage of qualified persons, such as in the teaching profession. None of these fundamental drivers apply to the law. Legal qualifications can be a relatively inexpensive form of university degree. Also, we tend not to have a problem of not enough people wanting to become lawyers in New Zealand. Therefore, it would be inappropriate to place a bonding regime on lawyers.

The arguments of avoiding a culture of imprisonment, advocated in this House, are actually compromised by this legislation. Without a system providing for effective representation, the likelihood of conviction and imprisonment is increased. Therefore, an effective resourcing of the legal aid practitioners would be in the Māori Party’s best interest, as it would provide for the effective defence of those requiring such systems.

The reality is that legal services are like any other commercial service—one gets what one pays for. There is no inherent obligation on lawyers to be treated differently from any other profession, and this Parliament cannot engage in such an unfair requirement. What it does show, however, is that if people want a certain level of legal service, then they need to pay what the market demands for those services. The reality is that the Government is underfunding those legal services, and this bill does nothing to rectify that situation. It is only through providing a realistic level of funding, and a process to keep up with the increased costs of providing that service, that true representation will be attained. With true representation, those in most need will be given the protection the legal aid system is required to provide them with.