Legal Services Amendment Bill (No 2)

I move, That the Legal Services Amendment Bill (No 2) be now read a first time. It is my intention that the bill be referred to the Justice and Electoral Committee for consideration, and that the committee has the authority to meet at any time while the House is sitting, except during questions for oral answer, and during any evening on a day in which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).

The Legal Services Amendment Bill (No 2) aims to ensure better access to legal representation and therefore to justice. It updates the criteria for eligibility for legal aid and introduces a new repayments and debt management regime. More people will qualify for legal aid. The costs of additional grants will be partly offset by requiring a higher proportion of legal aid recipients to repay some or all of their grant.

Reform of the legal aid scheme is overdue. The Legal Services Act 2000 sets out the framework for the existing legal aid scheme. It outlines the criteria for determining who is eligible for legal aid, and provides for the administration of the scheme by the Legal Services Agency. Eligibility for legal aid depends on a number of factors, such as the applicant’s financial circumstances. The present eligibility criteria are not inflation-proofed and have not been revised since 1987. The income limits are no longer realistic and have resulted in many lower-income working people being ineligible for legal aid, even though they cannot afford legal representation. This Government is committed to ensuring that inability to pay is not a barrier to justice. We are also committed to ensuring that public funding is used responsibly. The reforms introduced by the Legal Services Amendment Bill (No 2) effectively balance these objectives. I turn now to address the key features of the bill.

Financial eligibility thresholds will be updated. This measure will increase the pool of those eligible for legal aid from 765,000 to 1.2 million New Zealanders. Funding in Budget 2005 will enable an estimated additional 25,000 grants of aid to be made each year. The bill also builds in inflation-proofing by linking the thresholds for financial eligibility to movements in the quarterly consumer price index.

A new, simplified gross income test is established. Benefits are included in the definition of “income” to correct an anomaly whereby some beneficiaries have been granted aid when those on equivalent working incomes are not eligible. The definition of “disposable capital” makes provision for those assets that are not readily disposable, and excludes assets, such as the car, and an allowance of equity in the home. Regulations made after the bill is passed will also enable better assessment of assets held by trusts, and assets that are disposed of immediately before aid is sought.

The bill makes two minor changes to the eligible proceedings criteria. It clarifies that people outside New Zealand cannot be granted legal aid for immigration-related proceedings when people in New Zealand would be ineligible, and that legal aid is not available for commissions of inquiry.

The bill retains merit tests to ensure that aid is provided only when there are good grounds for a case to proceed. There will be a new merits test for certain Family Court and Youth Court proceedings when the existing “prospects of success” test is difficult to apply, particularly in relation to vulnerable people, such as children. The applicant will still have to show reasonable grounds for taking or defending the proceedings. The bill also clarifies the criminal legal aid merits test to ensure that those facing criminal charges have representation when it is necessary because of the seriousness of the offence or the complexity of the proceedings.

It is fair and reasonable to require those who can afford to pay to contribute to the cost of their legal aid. The current repayment scheme is complex and does not enable applicants to determine the costs that they may face. In addition, civil and criminal legal aid are treated differently, meaning that there are very few recipients of criminal legal aid who are required to make repayments.

The bill addresses those problems by introducing a new repayments regime that corrects the anomaly between criminal and civil aid recipients, and is transparent, easy to understand, and administratively simple. Under the bill, approximately 22,000 legal aid recipients will be required to repay their legal aid grant, either partially or in full. This is an increase of 14,000 in the number of recipients required to make payments under the current regime. The same proportion of repayments will apply to criminal and civil legal aid, thereby increasing the proportion of criminal aid recipients required to make repayments. Applicants will know from the outset the maximum repayment that they will face, and, with the assistance of their lawyers, they will be able to obtain an estimate of the likely total cost. The amount of repayment will be determined by regulations. Aid recipients who are successful in their proceedings and who receive funds in settlement will repay the cost of the grant of legal aid. Those who do not receive funds as a result of their proceedings will repay the lesser of the amount of repayment set by the regulations or the cost of the grant of aid. The new repayment requirements are not intended to be onerous and there will still be a group of low-income legal aid recipients—approximately 74 percent—not required to make repayments. By addressing the requirements for repayment of legal aid grants in some cases, the bill ensures that increased access to legal aid is affordable.

The bill will empower the agency to better manage and recover debt. The agency will have powers to adjust payment requirements as people’s financial circumstances change. It will be able to require repayments from the time that the aid is granted, to request financial information from debtors and seek verification of that information, to charge interest on debt if there is a default in payments, and to register a caveat against property to secure debt. It will also be able to write off debt in cases of serious hardship. There will also be changes to the offence provisions for failure to provide information and for knowingly providing false and misleading information.

These changes confirm and support the obligations of the aided person. These changes contribute to the goal of ensuring that public funding of legal aid is responsible. Access to justice is a fundamental principle. The Legal Services Amendment Bill (No 2) will help us to achieve this objective by ensuring that people are not denied legal representation through the inability to pay, and will ensure that public funding of legal aid is used responsibly. I commend the bill to the House.

In the dying days of the current session, with a Government poised to change on September 17, there is only one thing I can really agree with in what the previous speaker said. He said that access to justice is a fundamental principle. There could scarcely be any doubt about that.

Does it not highlight for us that this triumvirate of people—I call them people—who are involved in the justice portfolio in the present Government know nothing about where it is at? Three Ministers are involved in that great task, and it is a great task. The rule of law is a critical underpinning of our society. Who are those three people? They are the Minister of Justice, Phil Goff, who was a political science lecturer; Rick Barker, who was a trade union official of some standing in the community on the East Coast; and Michael Cullen, who was an economics and history teacher. Those are the people who stand before us and propound that the rule of law is important, and that access to justice is a fundamental principle. It is absolutely disgraceful, because in Parliament on the opposite side of the Chamber, where the Minister of Justice is sitting, there are lawyers of repute who are silenced. They are not prepared, apparently not able, and not supported sufficiently to make a contribution on these critical issues.

💬 Stephen Franks: Or Russell Fairbrother.

Russell Fairbrother is a criminal lawyer of substantial experience. These are matters that he would know about in the context of criminal legal aid. He has been completely muzzled. I call upon Mr Fairbrother, as he sits there in the body of the Chamber, to make some comment to Parliament, and to people who may be listening, on what he thinks about these truly important issues.

💬 Hon Phil Goff: He could say anything and it would make more sense than this member’s contribution.

The Minister in the chair, Phil Goff, is entitled to interrupt, and the public can judge whether his interruptions are worthwhile.

A line that Mr Goff has probably never heard of is: the courts are open to everyone, like the Ritz Hotel. It is a very sad statement, because what it is all about is that those who are wealthy can afford the provision of legal services, and those who are less wealthy—“underwealthy”, if that is the current expression doing the rounds in the Labour caucus—can secure legal aid, but, unfortunately, those in the middle cannot afford access to the courts. That is why National supports the reference of this bill to a select committee. But we are doing so with reservations, because part of our policy is that there should be a sweeping review carried out on issues such as the eligibility for legal aid and, also, the excesses of the current system—something that Mr Goff, Dr Cullen, and Mr Barker have done nothing to deal with. Why would they deal with it? They know nothing about it. That is the tragedy of the whole, sorry event.

National supports the Legal Services Amendment Bill (No 2) going to a select committee, with the reservation that those on the Government side of the House who speak in support of doing that really do not understand the issues.

💬 Hon Phil Goff: This member hasn’t read the bill. I can tell.

Mr Goff is interrupting to say that I know nothing about the bill.

💬 Hon Phil Goff: I’m saying that the member hasn’t read the bill, because he hasn’t referred to it in the first 5 minutes of his speech.

I hope those comments are recorded in Hansard, because I have had a substantial involvement in legal aid. I have read the bill.

I hope that the Minister has read the bill, because he will know that it touches on three really important issues. The first issue is that of eligibility. In the explanatory note the Government states that there is the prospect of wider eligibility in the bill. I tell the Minister that National hopes that will truly be the case. That is the first point about the bill. The Minister told me I had not read the bill. What a foolish comment! How would the Minister know that?

The second point is that the bill looks at the issue of merit testing, which is something that National is particularly interested in. The Minister will not know, because he does not know much about legal aid, that two standards are appropriate in the context of granting legal aid. One is for civil legal aid and one is for criminal legal aid. There is a fundamental difference, which, if he had read the bill, the Minister might have some appreciation of. We are keen to explore that issue more closely.

The third issue is the issue the Minister briefly touched on, and members of the House, who will have observed what the Minister had to say on the bill, will know that he read poorly from a close script. The third issue concerns the question of repayment of legal aid, which touches the question of whether legal aid in a particular case will be a grant or be something more in the nature of a loan. If it is to be something more in the nature of a loan, then we are talking about a debt-management regime. If the Minister had taken the trouble to find out—but I am sure he has not—he would have found that one of the Legal Services Agency’s concerns was about the issue of what is known colloquially as the legal aid charge.

Legal aid is an important element in the context of providing human and civil rights; it is all about access to justice. But there is no doubt that the present system is subject to significant rorting. If the Minister had been following what has been occurring in the media, he would have come across—but he did not choose to refer to—a number of instances where there have been significant rorts. National is on to that. We want that issue looked at closely, because substantial public funds are involved in the provision of legal aid, and it is really important that there be transparency in the system. I have to say—and I would not say it unless the Minister had interrupted with his foolish comments—that the time has come for legal aid to be looked at critically, and for the Government to become involved in providing, as it can do, lawyers of competence on its side of the House to speak about these legal aid issues.

There is also an issue of eligibility of legal aid, which I touched on briefly in response to the Minister’s comments. People cannot get legal aid for a number of things. They cannot get it for divorce, for example. They cannot get it in situations where a lawyer is needed but no court case is involved. They cannot get it where there are not good reasons for taking or defending a case, and they cannot get it to go to the disputes tribunal. They cannot get it for most immigration matters, excluding those concerning refugees. They cannot get it for court cases outside New Zealand. They cannot get it as employers nor in relation to companies or groups, except for limited cases such as class actions and Waitangi Tribunal claims. I am a bit surprised that the Minister did not find it appropriate to talk about why there is no case for looking at those issues, but I guess that ignorance was for him the watchword, and that those issues were not considered.

One of the things I think we have to consider very carefully as a Parliament is the issue of eligibility for criminal legal aid. There is no doubt about it that in a legal aid setting in a criminal context, legal aid is granted in circumstances where many would say that it should not be granted. I hope—and I trust, too—that the Justice and Electoral Committee will look at that issue when this bill is referred to it.

I think that a good thing the Government has done—well, it would not have been the Government; it would have been its policy advisers, probably—is the introduction of the new merit tests. In the case of criminal legal aid, it should not be the case that it will be a gravy train for lawyers who choose to specialise in that particular area. This is an access-to-justice issue; it is important that it be properly dealt with.

I will take a brief call on the Legal Services Amendment Bill (No 2), and start by congratulating the Minister, the Hon Phil Goff, on bringing the bill to the House. As clearly stated earlier on today, the bill will put in place a new legal aid requirement to extend eligibility for legal aid, and it will also put in place a repayment regime. I heard the previous speaker make his comments and, although I think I heard him saying that he was supporting the bill, I was not quite sure from the tone of his comments whether that, in fact, was what he believed.

Some important aspects of the bill need to be highlighted in this, the first reading, and one of those issues is that the bill aims to ensure better access to legal representation and, therefore, to justice, as this Government believes. As well, the bill is based on the principle that access to justice ought not to depend on a person’s ability to pay. It is, again, a matter of access to justice. The bill also updates the criteria for eligibility for legal aid, and introduces a new repayments and debts-management regime. Of course, more people will qualify for legal aid as a result of this bill.

A final point to be also mindful of is that the cost of additional grants will be offset by the requirement for a higher proportion of legal aid recipients to repay some or all of their legal aid grants. Those points are very important in terms of allowing all New Zealanders access to justice.

I have been listening to the debate this evening, and I will comment on a few other matters before I get stuck into this bill. First, I listened to the Minister, the Hon Phil Goff, who gave a good, workmanlike speech—read, prepared clearly by someone else, and full of the sorts of words that Labour loves, words like “empowerment”: “This bill is going to empower a better legal aid system.” The next thing I thought he was going to start to talk about was partnership between criminals and the Government.

The fact is that this Legal Services Amendment Bill (No 2) is unfortunately a bill that will not do what the Minister hopes it will do. However, National will give the bill the benefit of the doubt, and is very much supporting it going to a select committee, because legal aid needs to be looked at—not once, not twice, and not with just a little cursory look, as this bill takes, but with a really good look.

Legal aid in this country is not available to an awful lot of people it should be available to, and it is available to an awful lot of people to whom it should not be available. Legal aid in this country is not available for various reasons, and when I hear the Minister talk about access to justice—and the previous speaker from Labour also mentioned it—I know they are right, there should be access to justice. But if they cared so much about access to justice, why did they put the court fees up to the most appalling levels, so that it costs about $1,000 to get anything filed in the courts these days? Of course, they do not care about access to justice, or else they would not have made it so difficult for people who are owed money, or people who want to bring a very legitimate claim—people who are paying their own way—to actually be able to afford to file the documents, let alone do anything else.

This bill serves two purposes for the Labour Government. It lets the Government tell people that it is doing something about the legal aid system, which a lot of people think needs an awful lot done to it. The second thing it does is tell an awful lot of people that maybe they might be eligible for legal aid when, really, some of them might be but some will not, and they will be disappointed.

The system of legal aid in this country has been very much abused, and it will continue to be very much abused. That does not mean to say that we should not have it, and I am one of those people who believes that, in relation to criminal matters where a term of imprisonment is likely to come about if someone is found guilty, legal aid must be available if the person cannot afford to defend himself or herself. But I do say to the House that some people who get legal aid are drug-dealing heads of gangs. They do not have money to pay their legal fees but they do have money to buy their Mercedes or limousines. They do have money to buy, through their trust, houses and all sorts of other operations, but they do not have money to pay their own legal fees. Really, if we are to have any sort of system of legal aid that looks at issues about people who wrongly get legal aid, we should be able to look closely at what assets these people own, what they control, where they live, and the whole circumstances. There are some situations where, in fact, legal aid should not be granted but currently it is.

Legal aid is one of the areas that is very vastly abused in the Family Court system. Six percent of matters that go to the Family Court are likely to end up in a defended hearing. In my view a tremendous number of matters that are filed in the Family Court are never intended to go anywhere, other than a filing in the court. That is because so much of Family Court work that goes on is, in fact, driven by the need for legal aid fees. Speaking as a lawyer of some experience, I believe that one of the great tragedies is that we have a system in the family service whereby so many people are pushed into an adversarial situation, when all they really need to do is to sort out access and custody in relation to their children, and who takes them to sport on Saturdays. They do not need to go to court. Unfortunately, from what the Minister said, and having read the bill, I see very little in there—in fact, nothing—that will deal with those sorts of issues.

There is a good little point in the bill about what we could do in relation to merit, but actually the existing system already requires there be some merit in civil legal aid cases in order for legal aid to be granted. Yet in my time on the legal services subcommittee at the Auckland District Law Society, I saw matters go through that I was somewhat uncomfortable about.

💬 Hon Phil Goff: That’s why we changed the system in 2000.

I thank the Minister. I was very, very concerned about some of them. I see instances still, and just the other day I talked to those who operate in the family law area, where so much of it is being driven by legal aid. Most family matters do not need to go anywhere near a court. In most family matters, if they have lawyers who actually understand that and want to keep their clients out of court, they will stop those things from happening. But when some Family Court lawyers get all or a majority of their income from legal aid, we are liable to get a real abuse of this system. I know that many family lawyers out there will hate the fact that I am saying this, but unfortunately it is true. We will see an awful lot of that sort of abuse, as we do now.

One of the things that has always guaranteed someone to get legal aid is to accuse the partner, or former partner, of violence. Of course, anyone who is subject to violence needs to have that matter dealt with, but it does not make it right to accuse one’s partner, or former partner, of violence in order to secure legal aid. That is another of those tragedies and travesties, because the person may well be able to get legal aid for a particular matter, and may well think they will not need to pay for this, or, if they do, they will have to pay it back later, but without interest, and they can afford it. They are told by people at particular women’s refuges, or by particular lawyers: “This is what you do …”. But the people who ultimately suffer are the children, and the person’s own self-esteem and honesty.

So legal aid is one of those thorny issues that sensible people try to deal with and think how they can ration this to the point where the people who receive legal aid grants get it, because they need it, not because they simply want it. Yet when we look at some of the decisions—no matter what it says in the rhetoric—that have come out over the years in relation to some legal aid, we have to wonder. I have looked at some and been surprised they have not been granted legal aid. Sometimes it is because the person is taking a test case, and sometimes that test case is against the Government. I am a little concerned that the requirement is always that there is a “reasonable chance of success”. Sometimes it is actually important for the law, and the development of the law, that test cases be brought. Sometimes those test cases are, by their very nature, very, very risky ventures. Just sometimes it is important that they happen; that they actually go on the public record; that they are not like the majority of civil cases these days, which simply go through mediation or adjudication and avoid the court process for various reasons—such as the costs involved, lack of privacy, and, of course, court filing fees and the time involved. That is what happens.

It is concerning that we are getting some sort of piecemeal legislation. But I am pleased we have some legislation. I hope the Minister is not planning on sending this bill off to the Government Administration Committee.

💬 Hon Phil Goff: Justice and Electoral Committee.

I think that is a good decision, and shows that the Minister is taking this issue seriously.

I take it that the Legal Services Amendment Bill embodies 6 years of work by the Government on its eligibility review. I doubt that anyone in the House would not remember the Government’s promise to all those groups of activists that supported Labour in 1999 that a review of eligibility for legal aid would be one of the first things it would do in office. In fact, a major legal aid reform had been introduced, I think by the National Party, and was carried on by Labour. That bill ground its way through the House and eventually resulted in the establishment of the Legal Services Agency.

Throughout that process the select committee dealt with submissions from people who quite rightly complained about eligibility conditions for legal aid. We heard from people who were very, very concerned that cases that should have been pursued were not pursued. We heard from environmentalists who gave examples. Community groups said there should be assistance for representation on matters affecting their community. Then, of course, people on the other side of the argument put forward examples of the worst injustices that occur in this country. Some of the worst injustices are suffered by people who are sued by legally aided plaintiffs, and those victims are absolutely driven to bankruptcy or ruin because the plaintiff does not give a toss about costs. These cases are often driven by lawyers who do give a toss about costs, and are quite comfortable on the relatively meagre but nevertheless certain payment they get from the Legal Services Agency.

Those people told us they wanted the Government’s promised eligibility review to protect them. Well, the eligibility review did not turn up. The select committee asked for it whenever we reviewed Department of Justice estimates. I asked the Legal Services Agency, when we reviewed it, how much was being paid out to the poor victims of people bringing unfounded cases; and of people with unmerited claims who were funded through their cases by the Legal Services Agency. The agency did not know. It was so rare, no one had ever heard of it. We questioned the officials and they could not think of instances where they had reimbursed some poor victim the costs of a meritless case brought and funded by the Legal Services Agency.

The Minister plainly does not give a toss about the men who have been driven to absolute distraction by the type of cases that Judith Collins spoke about, whereby false allegations of violence had been made against them, to justify an automatic grant of legal aid. The Minister does not care about that—

💬 Lianne Dalziel: False allegations of violence, Judith Collins said. Very interesting.

I said false allegations of violence—absolutely false. This bill is far from ensuring that the State is not a party to this kind of injustice.

The bill makes it harder for someone who has been hounded by legally aided actions. There used to be something called “maintenance”. It used to be a tort. Someone who pursued, promoted, or continued proceedings, when the real party to it would have stopped, was found liable in maintenance and could be made to pay all the costs that the poor victim of those proceedings had suffered. There was another one called “champerty”, which was where someone took over proceedings and pursued them when otherwise they would have died. We now have a State that is cold-bloodedly fostering and paying for proceedings that, by any ordinary, rational calculation, would have died—and the State is immune.

When we look at the provisions dealing with costs we see that clause 26 replaces the existing section 40 with a new section 40. The existing section 40 at least leaves some faint hope that a person who is hounded by a legally aided plaintiff can go to the Legal Services Agency and say: “If I had not been facing a legally aided plaintiff, the court would have done justice by awarding costs to me. They are not permitted to award full costs, so please refund the difference.” What we now have from Mr Goff—this champion of justice—is the new section 40(2) in clause 26, which states: “No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there is misconduct by the aided person in the course of proceeding.”

Misconduct! Well, the courts consider that a pretty high standard to pass. So the normal rule of British justice, and of New Zealand justice, that the costs follow the result—in other words, if people win their case, the loser should reimburse them all the costs they have been put to, or at least a part of them, because they were facing an unjustified claim—is out the door for the vast majority of civil proceedings in New Zealand courts. Mr Goff is now saying that no full order for costs may be made against an aided person. In other words, the State will involve itself, the State will sponsor unjustified proceedings, and the State will then tell the court that it may not order costs unless there has been actual misconduct.

That is a high standard. It is failure to comply with the rules, deceitful or misleading behaviour, unreasonable pursuit of one or more issues, or an unreasonable refusal to negotiate. Those are matters that are more than just “You were wrong and your lawyer should have told you that you were wrong.” The court is going to have to find actual misconduct before it can order costs, and, when it does, it can order only a very limited amount. The poor victim who has won his or her court case, then has to go to the Legal Services Agency and ask for the difference. Bear it in mind that if the person does not get any costs awarded, he or she cannot do that. For the vast bulk of cases where there is no misconduct, the poor victim of the failed proceedings just wears whatever he or she has been driven to. I ask the Minister to explain that. Is that just? What is that doing to the rule of law in this country? What is that doing to the enormous number of people who are confronted by plaintiffs who do not care whether they have a meritorious case, or plaintiffs who may not have even wanted to take proceedings, but have been persuaded by their lawyers to promote them? That is Dickensian; that is the modern Jarndyce v Jarndyce.

Before I finish, I want to mention one other thing. This bill maintains the patronising race discrimination that has always been evident in the legal aid system. We have all heard about Donna Hall’s little windfalls—the wife of one of Her Majesty’s judges, who has made a very fine living out of Waitangi Tribunal cases. That is despite the fact that this bill, for most New Zealanders, says that the only people who can benefit from legal aid are individuals—not corporates, not trusts, just individuals. There is an exception. New section 15(5) in clause 9 expressly states that the provisions that relate to one’s means—one’s disposable income and capital—cutely, do not apply to applications for legal aid under section 42 in respect of certain proceedings before the Waitangi Tribunal. In other words, the parties that want legal aid for Waitangi claims do not have to show they are needy. They do not have to show that the proceedings would not be brought but for that help. Every other New Zealander, no matter how meritorious his or her claim, no matter how badly he or she has been wronged, will be refused legal aid if his or her financial circumstances are not shown.

But we find that in relation to Māori claimants—and this is patronising; it is treating Māori as if they cannot cope—the agency is not able to apply the rule that disqualifies, in new section 9(4)(a) in clause 5, if: “the Agency is unable to obtain full information concerning the applicant’s financial affairs because of the default or failure of the applicant:”. In other words, Māori claimants on legal aid can simply say: “I haven’t got books. I don’t believe in keeping books.”—as Donna Awatere Huata did not—“I want legal aid and you can’t even require me to show what my means are.” This is a disgrace in a justice Minister’s bill. This alone should have the National Party saying: “We won’t vote for this kind of nonsense.”, and the New Zealand First Party, which at last will make a majority in the next Parliament that says: “Enough of race discrimination in our law.”

I begin by thanking Mr Franks for reminding us of the Government’s promise of an eligibility review. I remember those days. I remember when Mr Franks and I, and a few other members, sat on the Justice and Electoral Committee. In some ways, I think the only thing that kept us going was the promise of an eligibility review. We sat through long, tedious hours while we gutted and rewrote the Legal Services Bill, which had been introduced by National and transmogrified by Labour. The only thing that kept us going was the promise that one day we would be able to do the really exciting work of considering changes to eligibility.

It is a wee bit of an anticlimax to be dealing with this bill today. There was real interest among the select committee members in addressing those issues—both stopping the abuse of legal aid, which we all acknowledge does happen, and, also, expanding the provision of legal aid into socially and ecologically useful areas, which is the issue I was more interested in. For example, we could expand it to include community and environmental legal aid where there is a clear public interest but little private interest. We see numerous examples around this country every week where the only thing standing between an ecologically sensitive area and a rampant developer is an impoverished hapū or community group. So extending the provision of legal aid into those areas is something the Greens very strongly support. It is part of Green policy, but, unfortunately, this bill does not address it, at all.

We will support the bill because we think it does a number of useful things. It extends eligibility. It raises the income threshold, which is something we strongly support. A number of people who are not wealthy by any stretch of the imagination have been excluded from eligibility for legal aid because of those unadjusted thresholds. The provision to allow those thresholds now to be set by Order in Council is something that we think is eminently sensible. It is crazy that legislation has to be brought to this House every time members want to adjust those thresholds, so we support that change.

The Greens support the ability for better assessment of assets—for example, those held in trust, or those disposed of quickly just prior to an assessment. It is distasteful to all people, and it is distasteful to justice, to see people getting legal aid when they have significant hidden assets. The cases that caused the most offence to people, as Mr Franks said, were those where people got significant support from legal aid when it was plain to see they had assets stashed away where they could not be got at. So we support that.

We support the debt management provisions. We think that where a debt exists there should be effective mechanisms to recover it. That makes absolute sense. But we also like the fact that the bill clarifies that those debts can be written off where they are causing undue hardship. But alongside our support for the clearer debt management provisions, we are concerned that there is an increasing focus on getting repayments of legal aid. We have to remember that it is the poorest people whose access to justice is reliant on legal aid. We think it shows a kind of mean-spiritedness to have too much focus on repayment, when that is not really where the concern is.

As well as the funding for private mediation, which is also something the Greens support, I note that the new section 23A(2), proposed to be inserted in the Legal Services Act by clause 13, is somewhat restrictive. It states: “(2) This section applies to an aided person who seeks funding for private mediation as part of an existing grant of legal aid.”, so it is very restrictive. I am not sure that those restrictions should be there, and that is something we will look at in the select committee.

But, as I say, we are disappointed with the bill. It is an anticlimax. One of the key areas that we would like to see provision made for is community and environmental legal aid, and that is something that Mr Goff had indicated would be included in an eligibility review.

💬 Dr Richard Worth: He promised it.

Mr Worth says that he promised it. I cannot remember whether that is exactly true, but it may well be. It was certainly my understanding that it would be in there, but it is not, and that is unfortunate.

Of course, provision was made for some environmental legal aid—a very limited amount of money—to be granted through the Ministry for the Environment, but that is not really the place to put it. It should be administered through the Legal Services Agency. That is where the proper administration can take place and that is where the criteria can be properly applied. I am not sure whether the Ministry for the Environment is particularly well-equipped to do the kinds of evaluations that are standard practice for the agency, so that aid should be provided through the agency as part of the legal aid scheme.

The other thing that I will touch on is that we would like to see greater provision of restorative justice in particular. I was in Christchurch recently talking to the community restorative justice group there, which was very concerned because it had had numerous requests to do restorative justice procedures. The procedures would have been extremely helpful, first of all, for the victims, and that has to be the No. 1 priority; they would have been enormously helpful for the victims. They would also have been helpful to offenders in the sense of their establishing remorse, and in developing processes for those people to move away from a life of crime. That is the kind of situation where restorative justice is the perfect solution. It does not work in all cases, but there are situations that are calling out for the provision of restorative justice, and it is unable to take place, simply because of the victim’s inability to access it. That is a real tragedy. I think that is the kind of area that legal aid could quite usefully be extended into. Again, those people are some of the most vulnerable people, some of the poorest people, and some of the people most in need of that support, as victims. That is something we think the select committee should also look at.

So the Greens support this bill. We support it going to a select committee, and we look forward to addressing a number of those issues there.

I confess from the outset that I am not a lawyer, so I have had no specific dealings with legal aid and I certainly have not applied for legal aid. So I have sat and listened with quite some interest to the debate on this bill thus far. I was intrigued by what the Minister said. He stated quite categorically that more people will require legal aid. That is borne out by the explanatory note to the bill, which states: “The changes introduced in this Bill are estimated to make legal aid available to 1.2 million New Zealanders (up from 765,000).” That is a very, very significant increase. I then listened with interest as other members spoke, and I was particularly intrigued by Judith Collins.

💬 Dr Richard Worth: A very intriguing woman!

She is a very intriguing woman when it comes to the law. I am not being critical of Judith Collins; I listened with interest, from a layman’s perspective. I just want to put on record what I understood her to say. She said that legal aid is not available to a lot of people in this country to whom it should be available. She then went on to say that it is available to a lot of people to whom it should not be available. Further, she said that legal aid in this country has been very much abused, and that drug dealers and gang leaders can, in certain circumstances, receive legal aid. That is a very damning statement of the situation in this country—very damning, indeed.

I think it was Judith Collins who also made the comment that legal aid is vastly abused in the Family Court system. I thought: “My goodness! Can anybody tell us anything worse than that?”. I am not disputing what Judith Collins said, at all. To me, she comes across as being a very competent lawyer, and I do not doubt that she knows what she is talking about. But then Stephen Franks took a call and made a great play in terms of the new section 40, “Liability of aided persons for costs”, which is proposed to be inserted into the Legal Services Act by clause 26 of the bill.

Section 40(2) states: “No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there is misconduct by the aided person in the course of the proceeding.” That provision simply says to me that somebody can go along, get legal aid—never mind whether that person is telling the truth to get it—go forever—

💬 Stephen Franks: And appeal

—and appeal, and get away with virtually pushing the other person, metaphorically speaking, into the ground, and that other party has no chance of a claim against that person or the State. In other words, the State, in these circumstances, could be underwriting crooks. I notice that the honourable member is nodding.

💬 Stephen Franks: Win by exhaustion—merits don’t matter.

And the State is funding it. This is terrible—absolutely disgraceful! I do not doubt those members. They are competent lawyers who have been in practice for many, many years. I am just a simple sailor, and I am quite horrified to learn what I am hearing now. So from that perspective, New Zealand First supports this bill going to select committee because we want the whole lot tidied up and addressed.

Further, I think it was Stephen Franks who said that false allegations of violence have been made in order to receive legal aid. The Government members are looking at me with blank faces, but I ask whether that is true.

💬 Hon Phil Goff: It’s a criminal offence to make a false allegation.

But has that been happening?

💬 Hon Phil Goff: In this bill, costs will be awarded against the person who does that.

Could the Minister tell me which clause that provision is in because, as I have said, I am a simple sailor. I have read the bill but, in this context, I do not know or understand the actual current law in terms of legal aid. It seems to me that it is better than a Lotto ticket.

💬 Hon Rick Barker: The member’s all at sea.

The member is not all at sea. The member who said that should take note that there is one member in this House who is taking a legitimate concern about where taxpayers’ money is going.

💬 Hon Rick Barker: Then that’s all right. We’re not all washed up. Mr Goff can fix it.

Well, I hope that he will. He is a Minister who is willing to help. I hope his intentions with regard to this bill are sincere and genuine.

💬 Hon Phil Goff: Absolutely!

“Absolutely”, he says.

💬 Hon Phil Goff: You can take my word for it.

PETER BROWN:Well, I will not take it too far, but never mind. Maybe members are having an unofficial question time now, Mr Assistant Speaker, so I hope you are understanding about the questions that are flying across from one side of the Chamber to the other. But as I make the rounds on behalf of New Zealand First—and I know that this is true of my colleagues—we are asked how much taxpayers have paid in terms of legal aid towards Zaoui’s case.

We have been told—I think from answers to questions in the House—that it is something like $2 million.

💬 Ron Mark: It’s up from that now.

Is it something like that? What is it—$1.5 million, $3 million?

💬 Hon Phil Goff: I think it’s about $300,000.

Oh!

💬 Ron Mark: Rubbish! We’ve had that in questions already.

We have had questions about that.

💬 Hon Phil Goff: So far, grants to Mr Zaoui are $375,248.86.

Is that legal aid—$370,000? That is 10 times the average wage.

💬 Hon Phil Goff: It’s only a tenth of what the member estimates.

No, we have been told the total cost. I was going to say that the majority of the total cost was going to be—

💬 Hon Phil Goff: The member asked and I responded.

I thank the Minister for that. That is reassuring. I have read this bill, and I ask whether it excludes or includes a person who may fly into this country, tear up his or her documents—whatever they are—put them down the toilet, and come into the country with nothing. Will that person get legal aid? Subsection (4) of section 9, “When legal aid may be granted: civil matters”, inserted by clause 5, states that the agency may also refuse legal aid to an applicant in any of the following circumstances: “(c) the applicant is not resident in New Zealand”—that sounds pretty good—“and the Agency considers that the proceedings might reasonably be brought in a jurisdiction other than New Zealand:”. I cannot see that occurring anywhere else. If the person has come in, torn up his or her documents, put them down the aircraft loo, and is now standing in front of an immigration person in New Zealand, I cannot see that that would be applicable. So it seems to me that we are not closing a door on anybody who wants to abuse the system.

💬 Ron Mark: They’re all Labour voters.

They are all Labour voters. Nevertheless, the legal aid system is so much in need of repair that we need a bill to address the flaws. If this bill is the best we have, then New Zealand First says that, with reservation, we will support it to the select committee. But New Zealand First will take a very keen interest in this bill, and we hope to tidy it up.

💬 Lianne Dalziel: Who’s on the select committee?

My colleague Dail Jones will be on the select committee. The member cringes; I can see it on her face. That horrifies her. That is good news.

💬 Lianne Dalziel: I’m delighted.

That was not the expression that came through on the member’s face. The fact that the member is worried that Dail Jones will be there delights me. We will be taking a keen interest in this bill, and we will be fixing it. Members have heard the old saying: “Can we fix it?”. Yes, New Zealand First can. We will be doing that.

I am pleased to take a call on the Legal Services Amendment Bill (No 2). As my colleagues have indicated, National will support this bill going to the select committee, largely because we realise that this area has been in need of a bit of an overhaul for some time. I think that the current Minister, Phil Goff, when he was campaigning to get into Government, used to promise to address this area quite quickly. I guess that 6 years is quick enough for him—but I would not have thought it was.

National certainly understands the need for provisions that make sure that those who deserve to be legally aided in respect of their court actions are so aided. There need to be some clear rules that set out eligibility for legal aid, and also some very robust provisions for the repayment of legal aid where that is proper. Overall, we should ensure that people who deserve legal aid receive it but, on the other hand, we should ensure that people who, for a variety of reasons, ought not to have legal aid, do not receive it.

The explanatory note puts much emphasis on the issue of access to justice being the underlying theme for proper legal aid provisions. In a way, National certainly agrees with that. In our democracy, none of us would want to think that when people had a legitimate claim or case to bring, they would be debarred from doing so because they had no means.

It seems a little ironic that this Minister and other speakers, including Mita Ririnui, have come to the House tonight to promote access to justice, when quite early in Labour’s stewardship of the Government coffers it lifted court fees and put access to justice out of the reach of a whole lot of New Zealanders. In doing that, one clearly has to look at provisions for legal aid. I think that under the current Minister, access to justice has been an ambivalent sort of thing.

💬 Hon Phil Goff: What does the member mean by that?

It has been said that the raising of court fees—sometimes by hundreds and thousands of dollars—has had a severe impact on the ability of New Zealanders to access justice in the courts. In terms of the bill before us, however, National sees the point of raising income thresholds. On the face of it, given that these provisions have not been updated since 1987, it is understandable that there has probably been a reduction in eligibility. It seems sensible that this bill at least acknowledges that.

The explanatory note states: “The changes introduced … are estimated to make legal aid available to 1.2 million New Zealanders (up from 765,000). In 2003/04 there were 60,277 legal aid grants … this is estimated to increase to 85,000 grants.” That is all good and well, as long as the eligibility rules are clear, can be applied consistently, and will ensure that those who can meet their own legal costs certainly do meet them. This should not be a sort of pre-election thing that supposedly shows the Government cares about access to justice when in reality, maybe, the provisions of the bill do not make it any clearer as to who should and should not get legal aid.

The issue of repayments is another underlying theme. Yes, we ought to make legal aid available when it is meritorious that we do so but, by the same token, those who have been granted legal aid should engage in some form of repayment, where they are able to, as well. That is important. We should not just give and make payment available. Claimants have to realise—particularly if they are successful—that at some stage the taxpayer is entitled to some form of reimbursement. As with the eligibility criteria, there must be some clarity and robustness around the area of repayment, as well.

I want to make a comment in support of my colleague Judith Collins, who, like Richard Worth, has been in practice more recently than some of us. I agree with the previous speaker from New Zealand First who raised the issue—as Judith Collins did—of where drug leaders and gang leaders are able to prove some sort of eligibility for legal aid. Yet, as a lot of us know, often there are times when those same people have assets that, quite frankly, should make them ineligible. That shows a slackness in the rules that clearly needs to be tightened up.

I hope that when the select committee examines the bill it makes sure that that sort of situation is not allowed to continue. But I guess we have also seen some corporate types in the past who have become eligible for legal aid. We thought that those people were running huge corporate empires in our community, yet, when they were before the courts, suddenly they were eligible for legal aid. That does not seem to be right, either.

💬 Hon Phil Goff: Usually only after they have gone bankrupt.

Exactly! The reality is, though, that the rules need to be tightened. The rules need to make sure that only those who should have legal aid receive it, and that those who ought not to receive it do not. That, of course, raises the issue of abuse of legal aid, which we have all seen over the years. Obviously, it has raised the need for a revamp of the rules relating to legal aid, which makes it proper for this Parliament to send the issue to a select committee.

I was interested when Nandor Tanczos reminded us—and he is probably the right one to do so, as he has been on the Justice and Electoral Committee—of the Government’s eligibility review, which now seems to be in the long lost, distant past. So I think the best thing that could be said for that review is that at last, 6 years later, we now see something before the House that supposedly embodies some of the thinking that was in the review. But given that this Minister has spoken loud and long on the abuses inherent in the legal aid system and also on the need to ensure proper entitlement for a long time, I guess we can be thankful that this bill is now before us.

As I have said, National supports this bill’s referral to a select committee. Our members on the select committee will be looking at the provisions very closely because the matters raised by speakers in the House tonight are serious matters. A lot of money is spent in this area and, equally, there is a lot of abuse. That must be weeded out. The rules must be clear. They must set out very clearly who is eligible. Proper provision must be made to ensure that people who have assets hidden away should not be able to avail themselves of taxpayers’ funds to fight their cases—they should do it themselves—and there must be proper rules for repayment.

Bill read a first time.

I move, That the Legal Services Amendment Bill (No 2) be referred to the Justice and Electoral Committee for consideration, and that the committee have the authority to meet at any while the House is sitting, except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191, and 194(1)(b) and (c).

💬 Stephen Franks: I raise a point of order, Mr Speaker. Were the conditions suspending the Standing Orders notified to the House at the beginning of this debate?

Yes, I can confirm that. If the member was here he would know it.