Legal Services Amendment Bill (No 2)

I move, That the Legal Services Amendment Bill (No 2) be now read a second time. I would like to thank the Justice and Electoral Committee for its careful consideration of the bill. I want to note that I accept all the committee’s recommended amendments, and am confident they will enhance the overall operation of the legislation.

The Legal Services Amendment Bill (No 2) represents the second phase of this Government’s reforms of the legal aid scheme. The first phase was initiated by the Legal Services Act 2000, which established the Legal Services Agency. The agency is responsible for the efficient and cost-effective administration of the legal aid scheme. This bill updates the eligibility criteria for legal aid. It also introduces a new repayments and debt management regime.

I turn now to the changes to the bill recommended by the committee. The committee has recommended changes, first, to the criminal merits test. The test, as introduced by the bill, represents a significant improvement over the previous tests, which provided little guidance to legal aid applicants or to decision makers. The new test clarifies that the interests of justice will require a grant of aid where a person is charged with an offence for which the maximum term of imprisonment is 6 months or more. For less serious matters, the bill lists the various considerations that the agency must weigh when deciding whether it is in the interests of justice to grant legal aid. The committee recommends adding another factor to the list of relevant considerations. This allows the agency to take into account whether an applicant has any previous convictions when deciding whether the interests of justice require a grant of aid. I support this proposal, as previous convictions can be relevant to assessing the likely sentencing consequences for the applicant if convicted of a further charge.

Improvements to the civil eligibility tests, including the merits test for certain family proceedings, have been proposed by the committee. The merits test has been reformulated to ensure that it operates, in effect, as a filter whereby aid may be refused if a grant is not justified. Again, I welcome this change. It will ensure that aid is granted only in appropriate cases.

The committee has also recommended allowing 15 days for the receipt of legal aid applications, or amended applications. This will allow sufficient time for submission of valid applications that have not been received by the Legal Services Agency due to circumstances beyond the control of, or not anticipated by, either the aided person or his or her lawyer.

An improvement to the repayment provisions has also been proposed by the committee. This will ensure that successful litigants who receive proceeds from proceedings that are insufficient to cover the costs of legal aid do not end up owing larger debts than if they had not received any proceeds at all. I support this change, which will ensure that the repayments scheme operates as it was actually intended to do.

The committee has recommended two narrow exceptions to legal professional privilege, and I think there was considerable discussion of this matter in the committee. The first enables an applicant’s lawyer to provide the Legal Services Agency with information about, first, any changes of address or any increase in income or disposable capital that may affect the applicant’s eligibility for legal aid. The second exception enables an aided person’s lawyer to advise the Legal Services Agency if the aided person is trying to avoid making payments out of proceeds. These recommendations reflect the fact that legal aid professional privilege is that of the client, not of the lawyer. The new provisions, therefore, deem an aided person to have waived legal professional privilege for the purposes of those two narrow exceptions. I support those changes, which clarify the exceptions to legal professional privilege.

I also support the committee’s amendments to the merits test for the funding of private mediation. The amendments provide that the agency may fund certain forms of private mediation for civil proceedings, if satisfied that the specified criteria are met. This proposal does not affect the arrangements for criminal legal aid for legal services in respect of restorative justice conferences.

Changes have been recommended to the provisions for costs awards against legally aided persons. The committee considered that it was too limiting to allow a court to award costs only where there was misconduct by the aided person in the course of proceedings. It recommended that the current exceptional circumstances threshold be reinstated, and that the new list of relevant considerations as introduced by the bill also be retained. A provision is proposed to allow the courts to specify costs that the Legal Services Agency may consider paying where no exceptional circumstances exist to justify an award against the aided person. This reinstates a provision in the current legislation. I welcome both of those changes, which will serve, I think, to improve the manner in which the costs provisions will operate.

The committee has clarified the circumstances in which interest will be payable. If a person defaults on a debt due—such as a weekly repayment—interest will be chargeable over all debt owed by the aided person to the agency. Again, I support this change.

A new provision providing immunity to Legal Aid Review Panel members has also been recommended by the committee. The immunity will protect panel members acting in good faith from legal proceedings in relation to decisions made by the panel. I commend this change, which will support the recruitment and retention of panel members. The change has been proposed to ensure that the resources of an applicant’s spouse or partner will not be treated as those of an applicant if the parties are living apart. I consider this change to be a useful clarification of the existing provisions.

The committee has also made a recommendation that requires the agency to review from time to time its rates of payment in respect of legal services provided by listed providers on a contract for service. I have indicated that a review will be considered after the implementation of this bill. This change is consistent with that undertaking.

Finally, I thank all the members of the Justice and Electoral Committee for their valuable contribution, which has resulted, I think, in a number of useful improvements to the bill. The bill will enable significantly more New Zealanders to have access to justice. It will also enhance the transparency and consistency of decision making and improve the efficient operation of the scheme as a whole. The costs of additional grants of aid will be partly offset by requiring a higher proportion of legal aid recipients to repay some or all of the costs of their grants of legal aid. The overall effect of these reforms is to increase the pool of those eligible for legal aid from around 765,000 to 1.2 million people. I anticipate that the bill, if passed promptly by the House, will commence in around March 2007. I commend the bill to the House.

I thank Mr Assistant Speaker for the opportunity of contributing to the Legal Services Amendment Bill (No 2). I am joined by my caucus colleagues from the National Party in opposing this legislation, and in the short time that is available to me I wish to highlight why National has concerns about it. We are strongly in favour of legal aid—and I need to say that from the outset—but we have reservations about this legislation—

💬 Hon Mark Burton: You may need it one day.

As I listen to the comments across the House, I am reminded of that line that the courts, like the Ritz Hotel, are open to everyone. That, in my view, well exemplifies the problems: that the cost of legal process is high, and legal aid is a critical element in the functioning of an effective legal system.

One of the things that the present Government has done—and I think it has done well—is to identify two justice sector outcomes. The second of those outcomes is this: “A fairer, more credible and more effective justice system, being a system in which people’s interactions are underpinned by the rule of law and justice services are more equitable, credible and accessible.” So the issue is whether the Legal Services Amendment Bill (No 2) meets that test—the only relevant test in these two justice sector outcomes. Sadly, I think the bill does not.

What the Justice and Electoral Committee sought to do, against the background of the submissions that it heard, was to encourage Labour members to see how it might be possible—in the context of legal aid—to improve the justice system. There were two areas where we felt that the committee fell substantially short. The first was in connection with the rules as to eligibility. I believe that it is absolutely critical when someone is seeking legal aid that there are, on the face of the statute, clear messages as to whether he or she will be entitled to that legal aid. That is why National maintained, right from the very beginning, that the rules as to eligibility for legal aid in both civil and criminal proceedings are not clear and are substantially discretionary.

The second area—which other speakers from National will take up—is the need to fairly remunerate lawyers who undertake legal aid work. From a personal perspective, I believe that the provision of legal aid may well encompass a lot more than a legal aid applicant receiving legal services paid for by the State from the lawyer of his or her choice. Although National has some doubts about the success of the public defender scheme, at least it can be said that there is a system—on a wholly different basis from what I have just said—that may have some chance of working, albeit it has attracted hugely critical comment from the legal profession.

I offer the view that there are other models that should be looked at. In the past I have suggested in this debating chamber a circumstance where a group of lawyers—perhaps a group of barristers or perhaps a law firm—tendered for a chunk of legal aid work, and, in respect of awarding that chunk of work, the Legal Services Agency set some very clearly defined parameters in terms of quality, performance, and cost. We need to look at such innovative structures, because the cost of legal aid is not inconsiderable.

In recent times, the New Zealand Law Society has taken a very active look at legal aid rates, and it has done that in the context of a principle that is perhaps not well understood in this House—the principle known as equality of arms. It is the concept that the defence should be as well resourced as the Crown. These are difficult issues, of course, to attain in practice, but that should surely be objective. One of the points that the Law Society has made, I think with some strength, is to argue that Crown legal aid rates—the rates that are paid to the Crown solicitors acting under warrant from the Solicitor-General—are way out of kilter with legal aid rates paid to defending lawyers. There is little doubt about that. Whether there should be an equality in those rates is one issue, but I would say that certainly there is a case to bring those rates up.

💬 Russell Fairbrother: There is a case law on that. The case law doesn’t agree with you.

As I am sure we will hear from people like Mr Fairbrother, who is making his usual, useful contribution across the House, those legal aid rates have not gone up since 1996. That, surely, cannot be appropriate.

I have spoken about eligibility for legal aid primarily in a criminal context. I would also say that this issue of eligibility and its discretionary elements similarly affects civil legal aid. When we talk of legal aid we generally seem to talk about it in a criminal setting. The bill says that the basis of a grant for legal aid in criminal matters is subject to an overriding consideration of “the interests of justice”. An attempt has been made to identify those relevant criteria, but the problem is that the criteria are subject to the fact that, as new section 8(4), inserted by clause 5, states: “the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.” In the case of a grant for legal aid in civil matters, discretionary wording is also employed. That is why National members think entitlement for legal aid should be clear on the face of the statute—so that applicants know whether legal aid will be available to them.

In speaking against the bill I am not suggesting that there are not parts of the bill that reflect improvement. They do. There are minor aspects of the bill that are an improvement. But, overall, if we look at what I have acknowledged as the laudable justice sector outcomes of the Government, we see that the bill falls far short. It is a pity that the chairperson of the Justice and Electoral Committee, on the first bill she has had to substantially steer through the House, has not been able to secure support from National. National’s position in respect of access to justice is absolutely unequivocal. We have said on a number of occasions across the House that we despair of much that is in Labour’s policy, because it simply does not measure up to the access to justice criteria. [Interruption]

I look forward to Mr Fairbrother’s comments on the bill, because it is fair to say that he offered insights in the context of submissions on the bill, and I hope he will be brave enough to utter them in the House. But I fear he will not be brave enough to do so. I fear that this man, who has had substantial experience in the legal aid arena, will not be prepared to say to the nation and to the parliamentarians in the House what he said in the Justice and Electoral Committee about what he would like to happen. If he did, there would be unanimity across the House, because his views so accurately mirrored those of National. But that is a matter for Mr Fairbrother to decide. He can call across the House as much as he likes, but a solid and sustained contribution from him would be infinitely more welcome. That is why National opposes the bill, and when we come to office in 2008—or before, and that seems increasingly likely—there will be changes to this legislation that I know Mr Fairbrother will unequivocally support.

As the chair of the Justice and Electoral Committee, I commend the Legal Services Amendment Bill (No 2) to the House, and say what a pleasure it was to work on the bill. We received seven submissions to consider, and they were very constructive and well put together, and equally we heard four submissions, which put a very common-sense case to the committee.

The key thing about the bill is that it actually builds on the Legal Services Act of 2000, which established the Legal Services Agency. The bill ensures better access to legal representation, and therefore better access to justice. The principle of access to justice ought not to depend on a person’s ability to pay, and that is very much the view of the Government. The bill updates the criteria for eligibility for legal aid, which have not been revised since 1987. The bill also introduces a new repayments and debt - management regime, with the end result that more New Zealanders will now qualify for legal aid. The cost of the additional grants will be offset by requiring a higher proportion of legal aid recipients to repay some or all of their grant, depending on their ability to make that repayment.

This is a very constructive bill, and I am really proud to stand as the chair of the select committee to speak in favour of it. I would like to take a few minutes to acknowledge the other members of the committee—my colleagues Russell Fairbrother and Ann Hartley, and Nandor Tanczos from the Green Party, for their very constructive contributions that were helpful at all times. I also acknowledge the National Party. Although it opposes the bill, I take a bit of time to acknowledge Christopher Finlayson. He gave some really constructive and sensible advice during the select committee process, and I thank him for that. [Interruption] I say to Dr Worth that there is an irony, in that rates went down for legal aid lawyers under National—and I challenge him to justify that statement—so for him to stand in the House and suddenly become the champion of the legal profession, in wanting to ensure those lawyers are properly paid, is a bit rich.

But to return to the key point, I say this is a great bill for the Government and for New Zealand. I commend it to the House.

I thank the member for Waitakere for her kind words, and I congratulate her on the way she chaired the debates in the Justice and Electoral Committee. It was a good debate. Unfortunately, the outcome is very disappointing, and that is why the National Party opposes the second reading of the bill.

Let us go back to section 3 of the principal Act. Section 3(a) provides that one of the purposes of the Act is to promote “access to justice”—a very important phrase—“by—(a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them;”. National takes issue with the Government and the minor parties on the issue of access to justice, because the bill fails to deal with that fundamental issue, and that is why we oppose it.

Dr Worth has outlined our concerns with the criteria for the grant of civil and criminal legal aid, and I will not address that. There are two matters I wish to address, the most important one being the question of access to justice from the point of view of the proper and fair remuneration of lawyers who undertake legal aid work. The cheap shot—the easy retort—is that National is raising that question because it is concerned about the pockets of lawyers. That is not the truth, and that is not the correct position. We are concerned about ensuring—

💬 Darren Hughes: Can you believe that face?

The poor old member for Otaki—the boy wonder—has to interject all the time. If he would listen, instead of acting like a buffoon, he might actually learn something. We are not concerned with the proper remuneration of lawyers for the sake of it; we are concerned with ensuring that lawyers are properly paid so that the right lawyers undertake this important work on behalf of those who cannot afford it. The second issue I will address, if I have time, is the new provisions relating to the liability of legal aided persons for costs.

As Dr Worth said, we are concerned that the Government continually refuses to address the need to look at the remuneration of lawyers. The current legal aid rates have been the same since 1996. Let us look at the position of Crown solicitors by comparison—and I would welcome Mr Fairbrother’s response to this important issue—because under the Crown solicitors’ regulations Crown solicitors who act on behalf of the police, in prosecuting legally aided defendants, are paid much more than those lawyers who defend legal aided defendants. What is more, as Mr Fairbrother would know from his distinguished career as a criminal defence lawyer, Crown prosecutors who are working in law firms not only get paid at Crown solicitor rates but they also have the advantage of the police doing much of the preparatory work, including the briefing of key witnesses.

Let us look at a comparison between the top rate paid to Crown solicitors and the top rate paid to legal aid lawyers. The top rate for Crown solicitors is $192 per hour plus GST. That sum is reviewed on a regular basis—I understand it is done every year, when the Crown Law Office arranges for an expert accountant to review it, so the rate is updated at least every 12 months. I ask members to compare that rate of $192 an hour plus GST with the top rate for legal aid lawyers, which is $130 per hour, inclusive of GST. So that means we are dealing with an effective rate of $121 an hour.

Members should consider an incident that occurred not long ago, in which there was a 3-week criminal trial. Documents were provided to counsel for the defendant, who was on the legal aid rate, on a disk. Once the documents were transferred from the disk into folders, there were 19 folders of documents. It was a complex trial. The clerk who collated the documents was paid $151.87 per hour, which was more than was paid to counsel involved. So who contributes more to justice: is it the lawyer or is it the clerk who collates the documents? There are some real anomalies and the Government wilfully refuses to address them.

At the end of the day, who suffers? Well, ultimately, it is the poor who need access to legal services who suffer, the justice system suffers, and we all suffer. Senior lawyers are not doing as much legal aid work as they were a decade ago. That means that junior and inexperienced lawyers are starting to do the work. What does that mean? That means too many lawyers are doing work where they are simply out of their depth and, indeed, an increasing phenomenon when trials go wrong is that defendants will appeal to the Court of Appeal, and their grounds of appeal are that their lawyers were incompetent. That is happening because lawyers are out of their depth and are not doing work at the right level.

That comes back to the point of inadequacy of remuneration. Too many trials go wrong and there are too many appeals where the primary ground of appeal is trial incompetence. The appeal system becomes clogged up with needless appeals, and the criminal justice system does not function properly. So there is a false economy here on the part of the Government. It is much wiser to pay service providers more, to ensure that the work is done competently by lawyers with the requisite experience—who are sufficiently experienced to do a good job—rather than simply pay this derisory rate, which means that inexperienced lawyers get involved in those cases. In only the last few days we have seen examples of where judges have had to intervene and say that they are sorry, but the counsel appearing before them are simply not up to the mark.

It is a real problem—and it does raise New Zealand Bill of Rights Act issues. I would be grateful if my colleague Mr Fairbrother could perhaps address that issue, because there are certain fundamental rights involved, especially for persons who are charged with offences. Those persons are entitled to have the right to adequate time and facilities to prepare a defence, they have the right to instruct a lawyer, and they have the right to receive legal assistance without costs, if the interests of justice so require and the persons do not have sufficient means. Those Bill of Rights issues do need to be addressed, and I invite Mr Fairbrother to look at those very carefully.

The first female law lord, Baroness Hale, recently emphasised that democracy is founded on the principle that each individual has equal value. Treating some as automatically less valuable than others not only causes them pain and distress but it also violates their dignity as human beings. People have a fundamental right to a fair trial and to access to justice. That fundamental principle is being undermined by this Government. That is reflected in this legislation, because lawyers are not being properly remunerated, with the consequences that I have described.

The second point—which I will address very briefly because my time is almost up—is to express my concern, as someone who has dealt with legal aided plaintiffs over the years, that clause 26, which deals with the liability of legal aided persons for costs, does not really address the critical issue. In effect, it is virtually impossible to obtain costs from the Legal Services Agency, even in circumstances where the conduct of the case by the legal aided plaintiff has been lamentable, to say the least.

It is no good to say that the cases can be struck out at an early stage, because no judge ever strikes out proceedings these days. People are obliged to expend huge amounts of money defending cases—often utterly misguided cases—brought by people who are receiving legal aid. Then, at the end of the day—even in the instance where the court says that if the person was not receiving legal aid the court would be prepared to award costs—the Legal Services Agency does not pay out. So clause 26 really does give me cause for concern. In the very near future I hope that a National Government will review that clause, as well. But at the end of the day, these are major questions of access to justice, and the Government is ducking them.

I rise to speak on behalf of New Zealand First in this Legal Services Amendment Bill (No 2) debate, and I just signal from the start that New Zealand First will support the second reading. We look forward with interest to the discussion during the Committee of the whole House where, no doubt, the issues that have been raised by the National Party, in particular, will be represented with Supplementary Order Papers and supporting debate.

Let me signal quite clearly right from the word go that New Zealand First can see clearly through the very thin veil of the explanation given by National Party members as to why they are opposing this bill. It is very clear to us. In the commentary on the bill, the second numbered point of the National Party minority report states: “the Government has refused to address the need to fairly remunerate lawyers who undertake legal aid work.”, and we have just heard the explanation given by Mr Finlayson, who has expressed exactly those concerns. So what does that mean? It means the National Party wants lawyers to get more money. It is as simple as that. The National Party wants to increase the amount of legal aid that is paid out to the criminal fraternity. I was hoping that the lawyer and political correctness eradicator, Dr Wayne Mapp, would take a call on this bill because, after all, it is he who will eliminate political correctness from the planet. He could start in this House right now by getting his own people to cut right to the chase and talk about what they speak of in plain terms.

The fact of the matter is that many of these lawyers are defending the criminal fraternity, and we can talk about the man who defends the Road Knights down in Christchurch and defends the highly suspect activities of a certain businessman who is opening up drug shops in Kaiopoi. Now, it is one thing to give legal aid to a person who is on his or her first offence, who is not known as a recidivist offender, and who has got into a position where he or she is facing charges and has an absolute need for a fair trial, but it is another thing to be fronting up for the twentieth or thirtieth time, backing some piece of—I am not allowed to use the word in this House—but defending some member of the criminal fraternity and helping him get off. We all know, and we do not have to talk to too many police prosecutors to find out, how this game is played. Many a Mercedes has been bought and many a house has been bought in the plush suburbs of New Zealand by very wealthy lawyers who have made their killing on the back of legal aid, defending members of the criminal fraternity who do not learn by their mistakes and who, in fact, consider court appearances as being just an occupational hazard that they must bear.

💬 Hon Harry Duynhoven: It’s a necessary part of doing business.

It is a necessary part; it is part of the risk management of doing the type of business that they do—dealing in methamphetamines, supplying marijuana to kids, and running prostitution rackets and extortion rackets. I would love to know how much money Mr Ruth down in Christchurch has had out of legal aid, defending the sort of excrement that he supports walking the streets of Christchurch—be it Road Knights, be it White Power, be it Epitaph Riders, be it Hell’s Angels, or be it whoever.

A society is judged by the way in which it treats its most vulnerable and by the quality of justice it lends to those who are brought before our courts. But we have to ask ourselves whether there is not a line where we say there is a limit, and where we say that those people are recidivist offenders who appear time and time again—and the poor, old taxpayer continues to wear the lot.

Let us not be blind to the tactics and strategies that some of those State-funded lawyers use for their clients. For instance, client Joe Bloggs from the Road Knights commits a crime for which there are dozens of witnesses and for which the evidence is clear. On the advice of his legal aid lawyer, he pleads not guilty. He tells the police and the court that he will defend the case. The police have to go through all the rigmarole of producing evidence, of disclosure, and of depositions—the whole lot—only to find that he has realised he has run the road as far as he can, and, on the advice of his lawyer, he pleads guilty and mitigating circumstances and expresses how remorseful he is for the crime he committed. We can sit down and tally up the hundreds of hours of police time and the hours taken by his lawyer on his behalf, and how quick and simple and correct the right path might have been had his lawyer simply said to him: “Look, mate, you have told me you are guilty. Let’s just get this done and dusted, take your medicine, and move on.” But, oh no, that is not now the pattern. Everybody knows how busy the courts are. Everybody knows how long cases will be delayed.

The only question New Zealand First is left with when we see statements like this—“… the Government has refused to address the need to fairly remunerate lawyers who undertake legal work.”—is that National should tell us upfront how much it wants lawyers to be paid for legal aid work. At least if we had a figure on it, if the National Party could put up a dollar rate per hour so that we could debate it, we might be able to move forward. But we cannot, because no figure has been floated. It is just: “We want more money.” Well, tell me how much more. I am involved with Māori business. We run a rather large and successful Māori agriculture-based business in the Waikato. Our yearly plans are based on business plans whereby we budget how much we are going to spend in each and every sector of the business. So I say to National members, pray tell the House how much money they want the Government to budget per annum for legal aid, and what that is based on. What is the hourly rate that National now wants all lawyers who suck off the hind teat of the taxpayer, picking up legal aid money, to earn per hour, per day, per week, per month, per year? The last time I looked I thought that about $100 million was going into their pockets.

That is on the back of tax cuts for the very same people, because National also wants to give high-paying, high-earning lawyers a big tax cut, as well. National members should tell us what the taxpayer will be expected to pay. I can see a farming man opposite shaking his head. I thought that that man, in National, would keep his mouth very, very tightly closed when it comes to shelling out money to lawyers, given the difficulty that the farming community faces when it comes up against lawyers who use the Resource Management Act to stop farming businesses from developing. Imagine that right now its current partners, the Māori Party and the Greens, want legal aid made available on a wider basis for people who challenge the Resource Management Act and resource consents, because, clearly, they cannot afford it.

So I ask National members now to tell me not only how much money they want the lawyers who are currently representing the criminal fraternity—the recidivist offenders who continue to fill our jails and who are going back there in increasing numbers—to be paid, but also how much of that legal aid money they now want to go to the Greens to help them fight resource consents against farmers and people in the agricultural industry who are simply trying to make a hard-earned living out of their lifelong and intergenerational family investment. I tell the member opposite not to shake his head at me. He knows exactly that that is the issue that National has not thought through. I simply say to National members that we will be listening during the Committee stage. We will listen intently to the debate on the Supplementary Order Papers that no doubt they will wish to put up. But I ask National to give us an hourly rate per lawyer, a daily rate, and an annual budget so that we can work with it and we might then be able to make a decision in a very informed manner.

This bill is not about lawyers. This bill is about access to justice. It increases—in fact, it nearly doubles—those eligible for legal aid to some 1.2 million New Zealanders. Yes, it increases the financial threshold for legal aid eligibility and, yes, it has some good intentions, but accessibility to justice is two-sided. It also requires that there are sufficient providers of those legal services, and it is very debatable whether there are sufficient lawyers who are prepared, and who are adequately experienced, to do that work. This is not just about the remuneration for lawyers undertaking legal aid work. This is about there being enough lawyers willing to do this legal aid work for nearly twice the number of legal aid recipients now. This is not a new problem, but it is a problem that has not been addressed in this bill, and it is a problem that certainly needs to be addressed.

We have heard it said that legal aid rates for lawyers decreased in 1996 and have not changed since. Those rates are 10 years out of date. This means that the quality of service to clients may be compromised. Clients’ access to justice may be compromised. This bill, which advocates access to justice, simply does not address one of the main barriers to such access. We have heard that in the criminal jurisdiction legal aid defence counsel are paid less than Crown prosecutors. This results in inequality—a threat to the fundamental right to a fair trial. In a criminal trial, the legal aid lawyers, who as officers of the court represent their clients to the very best of their ability, are at a significant disadvantage—and their clients are therefore at a significant disadvantage—to their prosecuting counterparts. Their resources are fewer. They do not have the resources of the police in support. In some cases more work is actually required of the defence counsel but they cannot do it. Prosecutors are allocated more paid hours for preparation. The amount of time for preparation of defence for which legal aid lawyers are paid is often unrealistically limited, and they often have to accept an unreasonably high workload in order to cover expenses.

So what does this mean? It means that fewer lawyers are taking on legal aid work. Legal aid work is not compulsory. It limits the choice of clients to a lawyer. It increases the likelihood of less experienced counsel undertaking legal aid work, with greater risk of errors and less skilled judgment. It increases the likelihood of consequent appeals at even more cost. Because legal work has become so unremunerative, many experienced practitioners are withdrawing from it.

I will give members two anecdotal examples. Firstly, in November 2005 a local law society sent out this notice to all firms: “The Family Law Committee has been advised that a number of law firms are no longer undertaking family law legal aid work due to their increased workload. We understand some firms are turning away a significant number of clients because of this. In many instances the firm cannot refer the member of the public to another law firm as they have no knowledge as to what firms do undertake legal aid work. The society would like to ascertain which firms in the region are undertaking family law legal aid work.” The response to that notice was that 30 firms out of a total of 306 firms—that is, less than 10 percent—said they still persisted with legal aid work. That is a real issue in relation to access to justice.

Secondly, I would like to quote from a letter dated 7 March 2006 from a law firm: “It is with regret that we advise that this firm will no longer undertake Legal Services work for new matters. We are prepared to continue with our existing aided clients until their matters are completed, particularly as we are aware the remaining legal aid providers in [the area] would not be able to act on many of the matters as they will be in a conflict situation. We have reached this decision for the following reasons: (1) the rate of payment is uneconomic; (2) the difficulty in getting extensions to grant for all but the most exceptional circumstances; (3) the cost of managing systems to ensure compliance with your requirements; (4) the unreasonableness of some of those requirements; (5) the lack of funding for aspects of file and case management deemed not acceptable to the Legal Services Agency; (6) the pressure from clients to provide legal services to a standard which legal services will not fund—those expectations are not usually unreasonable—and (7) to some extent there is an expectation from the Family Court for us to provide legal services to a standard not funded by the Legal Services Agency. It is with regret that we come to this decision as we as providers have strived to provide a high standard of service to clients who cannot afford to pay. However, we do not consider we should continue to provide these services at our cost or expect our paying clients to cross-subsidise the legally aided client. We are acutely aware that our actions will limit access to justice for a significant number of people in our community, particularly women with children. In the final analysis that is not our problem but one which needs political intervention to correct.”

This issue does need political intervention to address the problem, but this bill does not do that. If we are to intervene in any meaningful way to ensure due access to justice, then, among other things, the issue of legal aid rates and parity with Crown prosecuting rates must be addressed. In the submission of the New Zealand Law Society, it was noted that in some areas “applicants are having difficulty finding legal aid providers who are willing to accept domestic violence cases. Applicants seeking protection orders are reported as having to ‘shop around’ for a lawyer.” Yet is that not exactly the situation where quick, proper access to legal representation is essential? Victims of domestic violence do not have the luxury of shopping around. They have a desperate situation. They have an immediate situation—one that simply must be addressed immediately. It cannot wait for one of the few overly worked, underpaid, and perhaps under-experienced lawyers to maybe become available to do the work. This is not access to justice, this is not equitable, and neither is it credible or accessible.

Neither is it related solely to lawyers; it is about the clients, the domestic clients—not just the gang members, not just the criminal clients, but the domestic clients who are desperately in need of some help through the justice system. This bill does not provide that help or that accessibility to justice.

I think it is probably fair to say that, on the whole, lawyers feel an obligation to provide legal aided services as part and parcel of that important issue of access to justice, and that if there is a guaranteed supply of legal aid work, then a lower rate of remuneration may be expected. But it is not justice if one side is given more public money and resources, to fund the prosecution, than the defendant is allocated to defend him or herself. This bill is imbalanced. It is flawed. National opposes this bill.

For years Māori have had to go to court without decent legal representation, and often without legal aid. The Legal Services Amendment Bill (No 2) says it will change that by making it possible for another 435,000 people to get legal aid, many of whom undoubtedly will be Māori. The Government is to be commended for its efforts in this regard. The tragedy, of course, is how many Māori actually wind up in court in the first place.

We already know that Māori get arrested, prosecuted, convicted, and jailed at much higher rates than non-Māori, confirming last week’s report on human rights practices in New Zealand, which noted a continuing pattern of disproportionate numbers of Māori on unemployment and welfare rolls, in prison, among school drop-outs, and in infant mortality statistics. In the same week the Ministry of Justice also released its prison forecast, which projected that by 2010 Māori will be the most imprisoned people per capita in the world. That was said by our own Ministry of Justice. It is a statistic that bears repeating: by 2010 Māori will be the most imprisoned people per capita in the whole world. So yes, like it or not, the way things are going Māori will certainly need legal aid like never before.

So when the Māori Party looks at this Legal Services Amendment Bill (No 2), we ask how this bill will change things for Māori. In terms of the select committee process, sad to say, only seven submissions were received, only four were heard, and the whole thing was over in less than a day. That is hardly a good look for a Government promoting access to justice.

The changes in this bill are intended to increase the number of legal aid grants and the number of people who can get legal aid, and thereby give people far better access to justice than before. That principle is important, because the Māori Party does not share the view of other parties in this House that stupidly think that filling up the jails is the measure of the success of our justice system. It is our deepest wish to reduce the number of Māori who are arrested, convicted, and imprisoned. We want to enhance the mana of all people by promoting a system based more on justice that heals than justice that hammers. Sure, punishment is part of justice—no question—but what is the value of a system that punishes but does not change the offender, except to make him worse? What is the point of a system that actually encourages offenders to be more devious, more brutal, and less caring the next time they offend? Folks, it is not about getting even; it is about getting justice. It is about whānau—the whānau of the victim and the whānau of the offender. Punishing one without properly addressing the other serves no one. It is about taking the next generations into account.

But every time I think of that statistic—that by 2010 Māori will be the most imprisoned people in the world—I know that this bill will not make any real change at all. Mr Assistant Speaker, the Māori Party supports any genuine attempt to help people get access to justice, but this bill is really just tweaking a system that is intrinsically unsound. It would be great if we could say that this bill could turn round that damning statistic about Māori being the most imprisoned people in the world by 2010, but I suspect that you, me, and everyone else in this House knows that it ain’t going to happen.

Improving the administration and management of legal aid is a step in the right direction, but even with the best intentions the lawyers one gets when on legal aid are mainly just the legal bunnies, the new lawyers, and their enthusiasm does not compensate for their lack of experience. Experienced lawyers refuse legal aid cases because there is not any money in it, which means that defendants on legal aid get less value than people with a bucket load of money, and how surprising is that? Every Māori in this House has whānau who have been to court with lawyers whose aim seems to be to get their legal aid cases out of the way as soon as they can, often by persuading their clients to plead guilty. I know people who have pleaded guilty because they did not know they could get legal aid in the first place. I also know people who have pleaded guilty because their legal aid lawyers told them it was the best thing to do.

How do I know this? Because I have been to court many, many times myself, and I have seen the poor, the Māori, and their Pacific cousins being treated like scum by those who have been charged with trying to help them. I have seen people look despairingly at their lawyers prattling on in the courtroom, hoping they will talk to them, will simply acknowledge them, and I have seen those lawyers simply drone on as if their clients were not even in the room. I have seen people with the desperate look of the innocent turn their heads to the floor when they finally realised that their legal aid lawyers were more interested in their own performance than in the plight of their clients. I have seen people lose their freedom because their bumbling and often uncaring legal aid lawyers were just too bloody lazy to do their job properly.

The ASSISTANT SPEAKER (H V Ross Robertson): That is unparliamentary language.

I withdraw and apologise. Our criminal law is based on the private property values of British and Western history. The bill even suggests that the definition of an applicant’s income is subject to the resources of a spouse or a partner, or of parents, and resources relating to Māori land. The Māori Party rejects absolutely the notion that land handed down through collective whakapapa should be divided for consideration of an individual’s income. It is a racist notion that all decent citizens should be appalled at.

I also see that the bill aims to determine legal aid based on the likelihood of somebody going to jail. That has to be a little suspect. Does it mean that the Legal Services Agency will be taking over the role of judge and jury and making its decisions before someone even enters a plea? Or is it some screwy notion to deny legal aid to people who may not go to jail—as if that can be determined before pleas are entered?

I also note that surveys will be used to monitor progress in the legal aid system. That is all right, but the real measure is not in the administration and management of the system but in reducing reoffending and improving the situation for those who need it most.

Of course, one of the major areas of contention—and indeed one of the birthrights of the Māori Party—the Foreshore and Seabed Act, actually denies Māori access to legal aid. The bill does nothing to change that. The Foreshore and Seabed Act is actually a criminal denial of the rights of a major sector of our community. No other group in our nation—not the unions, not the employers, not our Asian cousins, not our Pacific relations, and certainly not our Pākehā whanaunga—except Māori is denied access to legal aid. I repeat: no other group in our nation except Māori is denied access to legal aid. How can we in the House—we who represent what is supposed to be an enlightened and educated society, and we who talk about fairness and justice for all—even contemplate an environment where major sectors are denied their rights that generations fought for over so many centuries? Indeed, how can we accept such an abuse of our people’s human rights and move by so glibly?

Those are critical issues that the House must address at this level and at every other level in society. Our courts are monocultural, and their language and procedures deny Māori access to justice. If we are serious about real access, then one of the key issues we need to address is that of cultural bias. In 1988 Moana Jackson of the Wellington Māori Legal Service reported that Māori cultural values were not reflected in criminal law. That was confirmed when in 1992 Gina Rudland, the President of the Māori Law Society, told the Minister of Justice that what was needed was a parallel system that allowed justice to be achieved for Māori by Māori. In 1993 Aroha Terry suggested marae trials for child abuse offending. All of those examples suggest that we should explore different justice systems and genuinely take up the idea of Māori practices. Let us face it, we can hardly do any worse than what we have got now.

For more than 1,000 years Māori have had their own justice system—one based on concepts of tapu and noa. It recognises people’s responsibility to the wider community, and the community’s responsibility for its members. The Pacific practice of ifoga is similar to Māori justice. The Navajo people of Great Turtle Island have their own justice system based on Navajo philosophy and procedure, and shared with the State. Over the Tasman, Aboriginal courts and systems are being used to reduce their arrest, conviction, and prison statistics. Indigenous people may not have all the answers, but current systems are obviously not working—not for indigenous people nor for society at large.

The bill is a stopgap—an admirable stopgap, but a stopgap nonetheless. The Māori Party opposes the bill because, although it purports to address the issue of access to justice, it accepts the ridiculous “jail ‘em at all costs” thinking that has led to the spiralling arrest, conviction, and imprisonment rates that have overrun our system; because it does not address the very real need to reduce the reasons behind the fundamental problems in our society; and because it deals with individual rights while continuing to deny Māori their collective whānau, hapū, and iwi rights—and, in fact, their human right—to the same measure of justice enjoyed by all other citizens in Aotearoa.

I raise a point of order, Mr Speaker. I waited until the honourable member Hone Harawira had finished his speech, but I just need clarification from you as to the rules of the House. I know that there have been some rule changes in the House, but to allow a member simply to stand up and read his speech directly off a laptop, without delivering it from the heart, from the shoulder, as David Lange would have—is that within the Standing Orders today?

The ASSISTANT SPEAKER (H V Ross Robertson): The member will be seated. There is a new procedure with the use of laptops.

I thank you for that. That is all I needed; I did not need to be chastised by you.

I am pleased to rise to speak to the Legal Services Amendment Bill (No 2) after Mr Hone Harawira from the Māori Party. Although the Green Party takes a different approach from that of the Māori Party to the bill—in that we are supporting its passage through the House—Mr Harawira raised a number of issues that are profoundly important, and that we need to take very seriously in the House. He raised a number of points around the very high proportion of Māori who are in prison. He alluded to the racism that is inherent in our justice system, whereby the police are much more likely to take notice of young Māori males than of others and to stop them, question them, and search them. If there is any evidence of wrongdoing, young Māori males are much more likely than others to be charged and, if convicted, they are then likely to receive a more serious punishment. That pattern runs all the way through the justice system. Mr Harawira was right in saying that the bill does not address that issue in any way.

Neither does the bill address a dysfunctional approach to justice issues that sees the answer to reducing crime as simply locking people in jail, without regard to what we do while they are in there—without regard to any attempts to rehabilitate them—or, more significantly, without regard to the need to invest in our young people, in the early intervention measures that will keep people from committing crime in the first place. I note that the member comes from Northland, where the Government has just spent some $150 million on building a new prison, at the same time as it is closing local schools.

So one has to ask what kind of justice we are really talking about. I have invited the justice spokespeople of all the political parties to meet to discuss the call from the Salvation Army for a cross-party accord on justice, because it is time we started to move beyond the sloganeering and the rhetoric, to look at the evidence about what works. It is time we stopped treating justice and crime as political footballs. We all owe that to people, because I think we all have a very genuine concern to reduce crime, and to reduce the number of victims and victimisation.

The bill does not do any of those things, but, nevertheless, I think it is worth supporting because it does do a number of useful things. The bill is important, and legal aid is important, because it means that when people do go to court, we are able to do whatever we can to ensure they receive proper, professional, and competent representation, so that they actually have a fair chance. The court is a place where people feel alienated. It is not just Māori who are alienated but also Pākehā. Anyone who goes into the court system and who is not legally trained is likely to be alienated by the process. It is like walking into a play and being the only person who does not know the script. People do get walked over by the system in that context.

I agree with what Mr Harawira said. I have seen duty solicitors whose advice to their clients is to plead guilty regardless of whether they did the crime, because the police are presenting evidence. Even when there is a very credible case to be made for the person’s innocence, it is just simply easier to plead guilty and get it over with. Of course, the other issue is that when people go to court, if they are working they have to take time off work and they do not want their boss or their colleagues to know that they are in court. The whole thing is something that people want to get out of the way, and it is easier to plead guilty than not guilty, particularly to minor offences. So ensuring that people who are charged with offences have good representation is important. I was pleased to hear some of the comments from the Legal Services Agency about some of the measures they are trying to introduce in order to provide better representation at the first stage, when people come into court. They gave that advice to our committee during the review.

We support this legislation because it increases the eligibility to legal aid—it is estimated that an extra 400,000 people will become eligible for legal aid—but we were disappointed that it did not increase collective eligibility. The Greens were instrumental in getting environmental legal aid provided, because we are aware of community groups all over the country that, out of a public interest, take on powerful business interests, with no resources. So environmental legal aid is available through the Ministry for the Environment, and it is a shame that collective eligibility was not part of this review. Nevertheless, a significant number of people—more people—will now have access to legal aid.

Since we are discussing the Justice and Electoral Committee’s report, it is worth drawing the attention of both members and the public to a number of issues, one of which concerns the eligibility criteria. Mr Harawira raised the point that one of the factors to be considered is the likelihood of someone going to jail. Let me be clear: the intention was not to prejudge the outcome of a case, but to say that if someone was being prosecuted for an offence for which, if found guilty, he or she was likely to go to jail, then the seriousness of the effect of that outcome should be considered when the decision was made about whether to grant legal aid.

One of the issues I raised in the committee was that people who had no previous convictions, and who had been charged with a fairly minor offence for which they were unlikely to go to jail, had to date not been eligible for legal aid. The argument was that those people were likely to receive only a fine or perhaps a bit of community service, the effects of which were not significant. However, the point I would like to make is that one’s first conviction is always significant. The first conviction a person receives will always have a disproportionate impact, because of its effect on his or her employment prospects, travel prospects, and the like. So a first conviction is always a serious—

💬 Brian Connell: Speak for yourself.

I tell Mr Connell that I have no convictions. Neither have I been subject to serious fraud investigation. I am talking out of a genuine interest for the well-being of ordinary New Zealanders, many of whom have gone to court but have not had legal representation—they have not been eligible for legal aid because of the point I have just raised. The advice they have sometimes had from duty solicitors was lacking, so they have pleaded guilty for the reasons I outlined previously. So I am very pleased that it was, I think, a unanimous decision of the committee to make the question of whether the applicant has had any previous convictions one of the issues the Legal Services Agency must take into account when deciding whether to grant legal aid.

One of the other issues we grappled with a lot was that of legal privilege. The bill as drafted required a lawyer who may have been providing legal aid to notify the agency about any changes to the income and disposable capital of the person who was being legally aided. But the bill stated that it removed legal privilege, and the select committee was very concerned about the idea that legislation like this might remove legal privilege. Legal privilege is an ancient right, and something that is a pretty significant cornerstone—well, perhaps not a cornerstone, but a significant block—of the justice system. So we looked at how we could amend that provision, and we came up with a proposal by Mr Finlayson, I think—

💬 Christopher Finlayson: Yes.

NANDOR TANCZOS:—a very good and sensible proposal that when people apply for legal aid, they themselves waive legal privilege. That, of course, is their right, and it overcame the danger that we were, by legislation, impinging on the confidentiality that lawyers owe to their clients.

The other issue that other members have raised is that of the pay rates, and that is important. I am not sure I agree with Mr Harawira that all legal aid lawyers are “legal bunnies”. I know that Mr Fairbrother has done a lot of legal aid work in the past, and I think he is a very experienced and competent lawyer. In fact, although there is a concern at the disincentive for lawyers to take legal aid cases because of the poor pay rates, I think that many legal aid lawyers are very good. They are people who do the work because of their real commitment to justice, and they continue to do it despite the very low rates of pay. Nevertheless, if we do not address that issue we will run into serious problems, which is why we have recommended that there be a regular review of the pay rates.

In the very short time available to me before this matter goes to the vote, I want to touch on a couple of matters briefly. First of all, legal aid is not just for the benefit of the client; it is also for the benefit of the court. I was fortunate enough to train under some very skilled lawyers, and judges welcomed those skilled lawyers in court because they cut down the sitting time by their ability to manage a case very well. So the purpose of lawyers in court is not just to defend or advocate the interests of a client but also to serve their obligation to the court, to see that the court’s business is disposed of efficiently, promptly, and as honestly as is possible. That is an argument often forgotten, but it is one that should be remembered.

Secondly, I want to address the issue of legal aid rates. Members have heard some fatuous comments from the National side, from people I otherwise respect considerably, and the fallacy of their comments is shown when they refer to the disparity of rates between Crown counsel and defence lawyers. Yet the same legal aid scheme allows for equality of rates between plaintiffs and defendants. The reason we have a different regime for criminal legal aid is as articulated in a series of cases in the High Court, where the quantum of legal aid has been argued and sufficiently answered. In short, there are two reasons: first, a Crown warrant obliges the Crown solicitor to accept every instruction from the Crown or from the police to prosecute a case. So, inherently, the Crown warrant is limited to income to that of scale. However, a defence lawyer is free to accept instructions from whomsoever. Accordingly, the decision made by a lawyer whether to accept legal aid is often for ethical reasons or for social responsibility reasons, and is not entirely monetary.

The other argument—which was touched on in perhaps a flamboyant way by Mr Mark—is that the issue is not really about legal aid rates being too low, but about the expectation of the legal fraternity to earn too much money from what is really a social good in the profession. Lawyers are getting to the stage where their incomes are unwarrantedly high for much of the work done. Sure, there are cases that carry an enormous responsibility and warrant a good fee—as there are in civil law, in conveyancing, and in other areas of law. But too often lawyers assume that because they have a ticket to practise, they also have a ticket to automatic wealth. That is not the case, and that wealth should not be gained from the public purse. So I agree with some of the comments made by Mr Mark, although not his character assassination of David Ruth, a very competent lawyer in Christchurch who serves the law very, very well, and who limits his income by his decision to practise, for the social good, on legal aid.

It is an honour to follow Hone Harawira in his speech. He makes a sound argument for reading from a computer, given the quality of his speech compared to those of some others who did not avail themselves of the current asset, which may well have enhanced their contribution to this debate. I support this bill.