Legal Services Amendment Bill (No 2)

The debate on this part includes debate on schedules 1 and 2.

I am pleased to stand in the Committee on the Legal Services Amendment Bill (No 2), but I have to reiterate that National does not support this bill in its present form. We would have wished, as part of our policy, for a more sweeping review—one that looked better at issues of eligibility for legal aid, both in criminal and civil proceedings. We do not think this bill does that. We also would have wished that a proper review and a proper approach to this matter would look at the excesses of the current system, and we do not think this bill has done that. Although the intended outcomes of the bill seem laudable enough, National believes that the bill falls short of achieving them—namely, a fairer, more credible, and more effective justice system, one that is underpinned by the rule of law and where justice services are equitable, credible, and accessible.

We believe that the bill fails, mainly on two grounds. First of all, we do not think that the rules of eligibility for legal aid in both civil and criminal proceedings are as clear as they ought to be. Of course, if the processes have no clarity, then we are looking largely at uncertainty. We believe that an effective justice system should be one that aims for certainty in its processes. This bill does not do that. Also, we think that too much discretion is left in the provisions and that, in effect, applicants for legal aid—and probably those who are considering eligibility, as well—are left in a position not much better than what happens currently. We think that the Government’s bringing in this bill and not addressing those issues has led to a bit of a waste of time. Certainty is a value that we would have looked for, but we do not think this bill achieves certainty.

The second ground on which we feel the bill fails badly is that it unfairly discriminates against lawyers who undertake legal aid work, as opposed to those who are prosecuting on behalf of the Crown. We do not think there is any proper case for that sort of discrimination. I will say more about that in a moment.

If we look at the detail of the changes in Part 1 that relate to the granting of legal aid to an applicant in respect of criminal proceedings, we will see that they are subject to an overriding consideration of “the interests of justice”. An attempt has been made to identify the relevant criteria, but those criteria are subject to an ability that the Legal Services Agency has in relation to section 8(4), inserted into the principal Act by clause 5. Section 8(4) states: “When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.”

We believe that puts in far too much discretion. The bill already sets out about three or four criteria that supposedly fall under the overriding banner of the interests of justice, requiring that the applicant be granted legal aid. Then, as I have said, section 8(4) gives too much discretion to the agency as to whether an applicant qualifies.

The provisions for the granting of legal aid in civil matters are set out in section 9, inserted into the principal Act by clause 5. Without at this point referring to those provisions, that section also allows for far too much discretion. Therefore, we do not think that this bill in any way leads to the outcome that I mentioned before, which is an effective, more credible, and more equitable justice service. We think that this bill in fact adds uncertainty, and that legal aid applicants will be no wiser at the end of the process than they are under the present legislation as to whether they are likely to be granted legal aid. So that is a big disappointment, and colleagues of mine will certainly be making some comment on that matter as we go through the Committee stage of the bill.

The second point I referred to was a provision that we believe discriminates against those undertaking legal services for applicants. There is discrimination between those who undertake that work and those who work for the prosecution.

A very senior QC, John Rowan, wrote about criminal legal aid in this month’s edition of the New Zealand Law Journal. In it he referred to something he wrote in 1993, and it is very germane to this debate in Committee tonight. He said that there are few, if any, votes for a Government in legal aid, but that the provision of proper legal advice and representation must be one of the hallmarks of a civilised society. The provision of proper legal advice and representation is critical, and this bill does not address that central issue. It deals with a number of laudable matters. It makes improvements in a number of key areas, but in the critical area of providing adequate criminal legal aid rates, it totally fails.

I will start by dealing with new section 92A, inserted by clause 33A, because the National Opposition says that that is not an adequate response to the problem. That clause provides that the Legal Services Agency “must from time to time review its rates of payment in respect of legal services …”. That will not, of itself, address what John Rowan describes in the March 2006 New Zealand Law Journal as the chronic disparity between the sums received by criminal legal aid defence lawyers and the sums received by Crown solicitors. This is not an issue about National looking out for its mates in the legal profession; this is an issue about justice for the poor. [Interruption]

The Minister in the chair, Mark Burton, laughs, but he ought to listen very carefully to this. Because of this increasing disparity, and the miserly sums that are paid, there is an exit from this type of work by experienced practitioners. The cost of this situation to the justice system is summarised in this way: because people are exiting—particularly leaders and experienced counsel—the supervision and modelling for junior counsel is simply not occurring. There is a huge pressure on the part of junior counsel to take short cuts and to not do the necessary preparation. The real costs to the justice system are seen in the expanding number of criminal appeals that increasingly involve allegations of the competence of counsel.

Finally, no doubt, criminal accused are being convicted when they should not be, or are being convicted of charges that are more serious than should be the case. These are matters that are not addressed in this legislation, and that is the primary reason why the National Party opposes this bill. In principle, the bill may have what could be called pettifogging, minor improvements, but it does not address the key legal question it should.

As the previous speaker said, there are also problems with new sections 8 and 9, inserted by clause 5. The particular complaint the National Party has is with new section 8, which outlines the circumstances when legal aid may be granted in criminal matters. One of the criteria set out is that the Legal Services Agency may grant legal aid if “it appears to the Agency that the interests of justice require that the applicant be granted legal aid.” Thereafter the section sets out a number of factors that may appear to the Legal Services Agency to constitute the interests of justice. But after providing a very lengthy list, subsection (4) is a model of vagueness, because it simply states: “When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.” In our submission, that is too vague and open-ended. Applicants for criminal legal aid should be entitled to know as early as possible what the circumstances are that justify the grant of legal aid to them. This provision is too vague and open.

Whilst we are looking at section 8, there are a couple of other points that could be made. Importantly, the majority of members on the select committee have inserted new paragraph (aa) in subsection (3). National has no real objection to that because the provision addresses a very important point; namely, whether the applicant has any previous conviction. That is important because even if a person is not going to be found guilty of an offence that may result in a term of imprisonment, the consequences of a previous conviction can be very serious indeed. A person may be denied entry to, for example, the United States, if he or she has a conviction that, although not susceptible of a period of imprisonment, is none the less serious enough to warrant the American authorities denying a visa. That is the kind of improvement that the committee made and that National is quite happy to go along with. But the overarching problems with new sections 8 and 9, inserted by clause 5, outweigh the good.

The second point, which I mentioned in the second reading, I emphasise from the point of view of those who are required to oppose cases brought by those on legal aid. It concerns clause 26, which inserts new sections 40 and 41. The reality of the matter is that it will be a very rare case indeed where circumstances are such that a legal-aided person will be liable for costs, much less that the costs of the successful opponent of the aided person will actually be borne by the Legal Services Agency. Section 41(3) refers to the factors that the agency must have regard to in determining whether to pay out to a successful opponent of a legal-aided person. From experience I can advise the Committee that it is virtually impossible to recover costs, so justice is not achieved in that regard, either.

In conclusion, National regrets that it has to oppose this legislation. It deals with a number of points. It expands the financial thresholds for legal aid eligibility but it does not address the critical question that is confronting the criminal justice system in particular at the moment, and that is the appalling rates of payment for criminal defence lawyers. These rates are turning into a real and serious barrier to justice. It is unfortunate that an enormous amount of work went into this legislation, but that the critical issues that I have endeavoured to outline in this speech have not been addressed. For those reasons, National opposes this bill.

I will make just a brief comment in response to the member who has just resumed his seat. Firstly, I acknowledge the points he made highlighting a number of reasons why he could indeed support the bill. I submit to him that he and the National Party should support the bill. Even if I accepted his arguments—which, of course, I do not in their entirety—as to the shortcomings that he proposes the legislation has, they are, none the less, alongside the things he has already explained eloquently to the Committee, good reasons to support a bill that at least, even by his own definition, advances things in the direction he would generally approve of.

I therefore fail to see the logic of why the National Party would knock the opportunity to make some progress, by its own definition, simply because it cannot have everything it wants. I urge the member to have another think and perhaps to discuss with some of his colleagues what is an opportunity to make some progress today, and to live to fight another day on those matters that he perhaps is not satisfied with.

I acknowledge the work of the Justice and Electoral Committee in relation to the advances made to clause 5. It is a good example of a further insertion in the victims’ claims area to ensure that the principles that this legislation seeks to advance are better met. The bill is improved by the considerable work and effort that the committee has put into it.

Again, I urge the member who has just resumed his seat to have another think about supporting the bill and to look at the advantages of making this progress, and there are other matters that we may well advance elsewhere on another day.

We know that the main aim of the Legal Services Amendment Bill (No 2), which amends the Legal Services Act, is to update the financial eligibility criteria for the granting of legal aid, and to improve the repayment of legal aid and the administration of the legal aid scheme. The bill would enable about 1.2 million New Zealanders to be eligible for legal aid—an increase from some 765,000.

But the bill is not about lawyers; it is about access to justice. In the words of the New Zealand Law Society, the right to legal representation is worthless if effective representation is not available. We are nearly doubling the number of legal aid recipients, yet anecdotal evidence shows a decreasing number of lawyers—an exodus of lawyers who are willing and available to do legal aid work. Both sides of the coin must be addressed: that of the user of legal services—the client—and that of the provider of legal service—the lawyer. The bill does not do so. It seems to take as a given that there will be enough able, qualified, and willing lawyers to cope with the increased case load that would result from increasing the legal aid eligibility. But firms are declining to take on legal aid work. Fewer and fewer lawyers are willing to take on the work. That is not justice, and neither is it access to justice. Because of a shortage in the supply of qualified and experienced lawyers, a miscarriage of that justice is more than likely to occur. As an example, part of the legal aid regime requires a solicitor, in order to qualify for a particular legal aid rate and level, to have spent 3 days in a court under the supervision of another lawyer. That sounds great in terms of quality control and standards, but the fact of the matter is that for those 3 days neither of the lawyers can charge their rates at all. They simply do not get paid. It is little wonder, therefore, that lawyers are turning their backs on legal aid work, and this bill does nothing to attract them back.

We have a prima facie case—and we all know about prima facie cases—that through the bill access to justice is being threatened, not just for the criminals and the gang members but for any New Zealander who is financially eligible, including victims of domestic violence, wrongly accused victims seeking to prove their innocence, and those who may have simply made a mistake. Those people all need legal representation and they all need justice. Lawyers generally agree that they themselves feel an obligation to provide legal aid services as an integral part of the issue of access to justice.

But it is not access to justice when defendants who are defending their innocence have fewer resources, and when their legal counsel has less time to prepare the case—fewer resources at less cost—than their prosecuting counterparts. It is not access to justice when victims of domestic violence who are in desperate need of prompt, competent advice have to shop around for a lawyer who is willing to do legal aid work. It is not access to justice when clients do not have the opportunity to engage sufficiently qualified, experienced, and able counsel. Counsel of choice is an important hallmark of our legal aid scheme, as my learned colleague has already alluded to, and by not addressing the issue of legal aid providers the bill limits the choice of legal representation.

It is not access to justice when one first has to jump through the uncertainty of the eligibility rules. The Legal Services Agency has such discretion that it leads to such uncertainty. Is this the right group to determine, for example, the interests of justice? Is the Legal Services Agency the right group to determine, for example, the likelihood of sentence of imprisonment? Is the Legal Services Agency the right agency to determine whether the proceedings involve a substantial question of law? Is the Legal Services Agency the right group to determine the prospect of success in, for instance, family and domestic cases? Such uncertainty is not access to justice.

I was sitting in my office listening to the debate, and I heard my good friend Mr Christopher Finlayson demonstrate that the move from skilled lawyer to cant-uttering politician can be rapid, in some cases. The law reports are redolent of Mr Finlayson’s cases of finely argued matters of law based on evidence. As I sat in my office in my jeans and open-necked shirt, ready to go home, I listened for evidence in his dissertation on the problems facing the legal aid scheme. Then he mentioned the blaming of counsel as a cause for retrial. I thought that was interesting, because recently I heard Mr Finlayson say that the Court of Appeal dealt with about 490 criminal cases a year. I thought back—I did not have time to refer to the law reports—and I could think of just one case in the last year when the decision has been overturned for that reason. There may be more but we are looking at 0.1 percent, at the most. Given that the criminal courts handle tens of thousands—perhaps hundreds of thousands—of cases a year, his argument in fact justifies the system we have at present, whereby legal aid is delivering competent counsel to accused people.

Before we take the broad brush of criticism to the bill, we must ask what the debate is about. The debate is not about the adequacy of the legal aid rates; it is about the thirst of the profession to earn a higher and higher fee, which drags up the level of legal aid remuneration. If someone tells any motor mechanic that the lawyer who acts for his or her spouse is grizzling that he or she is being paid $140 an hour and can barely afford to run the case, the motor mechanic may forget to put oil in the engine of that person’s vehicle. Quite simply, $140 an hour is a large sum to be paid. Someone might say to a Crown prosecutor that he or she does not deserve to earn more than the defence lawyer, because he or she can act for the Crown all the time on Crown solicitors’ rates. But the defence lawyer, if he or she is competent, may do a legal aid trial one week and the following month earn three times the amount by way of private instruction. The Crown prosecutor will wonder where the parity of arms is in this case, when the defence counsel appears in court and earns three times what he or she earns without having to prove a thing. Where is the parity of arms, and where is the equal basis on which the law is practised? So if one compares apples and oranges, one will get different results.

The Legal Services Amendment Bill (No 2) is about rationalising a process that has emerged. One of the first things the bill does is widen the eligibility criteria so that a greater number of people can qualify for State-funded aid. It is up to the law profession to try to determine how much public good is left in the practice of law. If the law profession departs any further from the concept of public good, then that may see the encroachment of the State into more provision of legal services, and that would be a sad thing.

In addition, my friend Mr Finlayson lamented the number of people who are now appearing in court. I thought back to the days when I started doing legal aid. Then, one was paid $13 for a plea mitigation; now it is $300. People were saying: “Why do you bother doing this? You can earn more in other areas of law.” That is so true. Back in 1978 there was a paucity of lawyers at the criminal bar, which has been a factor right through. Now, of course, the major law firms do not train their lawyers in advocacy. We have reached the stage that when someone takes an associate lawyer in a large firm head-on, and says: “We’ll go to court on this.”, that person will find that the lawyer will start to talk about a settlement, because many of those so-called senior litigators are gun-shy. The reason is that the process in their firms takes lawyers out of court. They are very good at arguing the case in telephone conferences, at writing pleadings, and at preparing briefs of evidence, but when it comes to the threat of a cross-examination, or of having their case tested in court, they talk settlement. So that is not legal aid; that is the private system failing its clients by training lawyers to earn more money rather than to provide good advocacy.

The problems that Mr Finlayson speaks about are not an indication of the failure of the Legal Services Amendment Bill (No 2); they are an indication of the abrogation of the Law Society in its public-good obligations to the public at large. No longer is it adequate for us to say that the State is not providing enough legal aid. We should be asking the law profession whether the new lawyers and conveyancers legislation will take lawyers back to the public-good element that 5 years of study warrants.

So I stand here acknowledging that although the Legal Services Amendment Bill (No 2) may not be perfect, it does provide a level of remuneration that most people in New Zealand would consider adequate for a person to earn per hour. Sure, if one wants to have a lot of secretaries, a flash office, and sweets that have the name of one’s firm on their wrapping paper, then one cannot do it on legal services rates. But if one wants to provide good honest service, this bill will do it.

The National Party does oppose this bill.

I am interested in clause 33A of the bill. Clause 33A inserts new section 92A into the Legal Services Act 2000. It relates to the Legal Services Agency’s ability to review payment of legal services. The new section states: “(1) The Agency must from time to time review its rates of payment in respect of legal services provided under this Act by listed providers on a contract for services.” What does that mean? It means simply that at some unspecified point in time the agency has the ability to review the rates of payment for legal aid. This definition causes a number of problems. First, the time frame for reviews is not specified. Secondly, the quantum of any increase, or even a potential decrease, is not specified. Overall, there is a lack of detail, which will create uncertainty amongst practitioners, and there is also inconsistency with specific details given for the rights to obtain legal aid. But there are no specifics on how to pay the practitioners for the increase in services they are expected to provide.

The intention of the bill is to promote access to justice. The Hon Phil Goff described this in the first reading as: “More people will qualify for legal aid.” It is expected that as a result of the opening up of eligibility for legal aid, there will be a further 25,000 grants of legal aid per year. Those grants will be inflation-proofed by linking the thresholds for financial eligibility to movements in the consumer price index. Each year the threshold will change. If we compare that with section 92A, where we have only a vague ability to review the rates of payment, we see the first inconsistency in the bill. We are providing a specified regime for dealing with increased caseloads, but at the same time we are providing no specific regime for how to pay the providers of those services for their increased costs of providing the service. All we have is an undertaking from the Hon Mark Burton in the second reading that: “I have indicated that a review will be considered after the implementation of this bill.” That gives neither any certainty nor any consistency for legal practitioners.

The Government’s coalition partners, “Ron’s Mob”, have taken the approach that this is some kind of attempt to lobby for higher fees. The reality is that we face a segment of the profession that is in crisis. The reality is that practitioners are deliberately shying away from legal aid work because of the administration required, the low payment fees, and the lack of resourcing for their activities. That potentially affects the poor more than any others. For example, there are no practitioners willing to do family law work on legal aid between Taumarunui and Te Awamutu. The result is that that service is not provided in small towns in areas of low socio-economic demographics. Where it is provided in those areas there are real concerns over the level of service provided and the ability of the legal advice.

Some people may not see that as being a problem. One of the things I remember from working in a law firm was the case of a young man who was needlessly sent to prison. He had suffered the effects of a big night out and had committed certain acts he should not have. After a few days on remand he was brought before the judge. OK, that judge had a propensity to convict, but the young man stupidly stood in front of the judge and told the judge that he deserved a sentence of imprisonment. He got that—a sentence he should never have had to suffer and something that probably sent him down the wrong path in society. If he had been given sufficient legal advice, his life would have followed quite a different path, but, unfortunately, he was just one of the many. Some people do not know how to help themselves in those cases.

The Government has a responsibility to provide for those sorts of circumstances with sufficient legal representation. Under this bill there is an expectation for greater numbers of legal cases, but not the legislative intention to provide an adequate level of service for those concerned, and that is especially true for the youth in our community. The failure to provide adequate representation for those in need of protection, such as our youth, is contrary to the early intervention principle and is a failure for those most in need. Sure, the bill brings in a new repayment regime, but many such individuals will never be able to meet those commitments. We are also seeing trends in legal aid whereby clients are treated differently in terms of scheduling and in the quality of staff and advice provided. Combined with a Legal Services Agency that acts more like a court in determining appropriate cases, we are failing the most vulnerable in our society.

An important concept in representation is equality of arms—that both parties have a comparable level of representation. The current inequality in payments for prosecutors and defenders is that fewer people are doing legal aid work, as such work is not compulsory. That in turn limits their choice of clients. Often questions of competency arise from inappropriately paid representations, and there is the possibility of a greater risk of errors. The key concept of the bill is access to justice, but to achieve that we need an appropriate level of service from legal aid lawyers. This bill fails in providing access to appropriate levels of service.

The bill intends to increase access without having respective increases in the funding of the service. It sounds familiar—just like a Labour Government policy of devolving the costs of services to local government bodies. All that is provided is a time to time review process. “Time to time” is undefined and could be as long as anything—the time taken to address our roading needs, the time taken to achieve the elusive tax cuts, or possibly the time taken for an old sailor in New Zealand First to retire. The amount of any change is similarly vague, but we are used to vague concepts of values from this Government—of carbon tax estimates and student loan scheme costings.

I guess that speech just about sums up why we do not need to be listening to calls to pay lawyers more. If that was a speech delivered by a man who has practised law, who has to read everything out word for word, who has to pre-prepare, and who is not able to come to this Chamber, listen to a debate, formulate his own views, and articulate them clearly and succinctly without having to write one note down on a piece of paper, then we are in dire straits out there in the legal fraternity, for we do not have good quality lawyers.

Mr Chairperson, you may be noting that I am not speaking from notes. All I have in front of me is a blank page right now. Let us go one step further to take the next argument that has been touted by ex-lawyer after ex-lawyer, no doubt to be followed by ex-lawyer after ex-lawyer. The one thing they want is—

💬 David Bennett: I raise a point of order, Mr Chairperson. Is the member not supposed to address part of the legislation? We have heard nothing like that at this stage.

The CHAIRPERSON (Hon Clem Simich): Thank you. I am sure the member will come to that. He is just making a few comments. He is working his way into it.

I am simply replying—and here again, it reinforces the substandard we seem to have dropped to in the legal fraternity. If the man cannot understand the Standing Orders, which give a speaker the right of reply to comments that have been made in the previous speech, then he is a loser from day one, and will continue to be until he reads the Standing Orders.

The debate from the National Party team has been structured around fair compensation for lawyers who take up legal aid work. I repeat what I said in the report back: those members should help New Zealand First members make up their minds whether to listen to them. Those members from National should tell New Zealand First how much they want lawyers to be paid per hour, per day, per week, and per year for doing legal work so that that can be factored into the Budget, so that we can decide whether the amount can be afforded on a national scale, and so that we can put a price tag firmly on what National is saying today. I do not mind people arguing for more money for lawyers. I could listen to that all day, just as I will hear people arguing for more money for rehabilitation schemes. But pray tell me—how much more dost thou speak of? I cannot make a decision on a “gimme me more please” plea.

I simply say to the former lawyers now acting as members of Parliament, and particularly to the previous speaker, Mr Bennett, that they should come to the House prepared. They should act like good lawyers. They should represent their cases well and articulate them well. They should do so without writing notes, and—please—without reading their notes to us. If Mr Bennett wants to do that, he should table his speeches and spare us all the agony. We will read them in our own time. I ask those members who come here and support this bill to do so with good, reasoned arguments and not to ask the House to give lawyers more money until they are prepared to say how much more they want, so that we can be very clear about what they are asking for.

Although this bill is called the Legal Services Amendment Bill (No 2), it focuses on only one legal service: legal aid. National, like most Kiwis, supports the philosophy behind the bill, which is the right of all New Zealanders to have an equitable, credible, and accessible justice system. All New Zealanders should have confidence that each and every one of them will get equitable treatment in a court of law. It is not right that different people should get different results from the justice system because of their age—as Mr Bennett has told us—their sex, their colour, their knowledge of the system, or—and this is why the bill is so important—their ability to pay for representation and the quality of that representation.

The cost of going to court is a vexed issue for all who face legal proceedings, whether they are eligible for legal aid or whether they have to pay their costs themselves. In a criminal case, a person has very little choice. It is always wise to have legal representation, because there is no doubt that with a competent lawyer a better result should be expected.

💬 Ron Mark: Is this competent lawyer reading again, too?

This is not about being a competent lawyer; it is an argument for the importance of legal aid.

New Zealanders believe that it would be a miscarriage of justice if a person were unable to be represented in court simply because he or she could not afford a lawyer. A civil case is somewhat different. In civil cases complainants have more choice about whether it is worth going to court. They need to weigh up whether the result is worth the cost. Many people say that going to court, however right a case may appear, is a lose-lose situation simply because of the stress and the expense. Many people choose to settle out of court simply because the cost of going to court is not worth even a successful result. People who are not eligible for legal aid make those decisions every day, and they often decide that their day in court is not worth the expense. That cost-benefit analysis is a valid way of dealing with civil issues.

Getting legal aid should not encourage or promote litigation; nor should it lead to court proceedings continuing indefinitely simply because the State is paying the costs. We have seen situations where legal aid has paid for appeal after appeal on often quite spurious grounds. Although it is estimated that this bill will increase the percentage of legal aid recipients who are required to make repayments from 14 percent of those receiving support to 26 percent, it will still mean that nearly three-quarters of the people who get legal aid will repay nothing. Legal aid in those cases should perhaps be called a legal grant.

But the main reason National does not support this bill is that it does not address the issue of remuneration for lawyers and how they undertake legal aid work. The bill revises the terms of eligibility for legal aid and makes rules about merit testing and debt management, so the mechanisms for providing representation are dealt with, but the bill does nothing to guarantee the quality of that representation. This issue was brought up time and time again in the Justice and Electoral Committee.

If we are to provide a legal aid system where everyone has a chance of receiving equitable treatment in a court of law, we must be able to ensure that a competent lawyer will take the case. Right now, that outcome must be debatable. With legal aid payments set at the 1996 remuneration level, individual lawyers and whole practices are turning down that type of work. It is rare to see senior lawyers in court doing legal aid work, which means that younger and less experienced new lawyers are left to carry the responsibility.

A lack of involvement in the legal aid scheme by experienced and skilled lawyers destroys any chance of the equity of justice that is the whole purpose of legal aid and of this bill. So National opposes this bill, because if we cannot guarantee the quality of legal representation, how can we deliver equitable, credible, and accessible justice?

I just want to recap what we have heard from both sides of the Committee, Mr Chairperson, because I sense a degree of repetition in the debate that I am sure will lead you to the inevitable conclusion shortly. We have heard about the content of the bill, and almost universally from members—including the National members—we have heard nothing but acceptance, praise, or agreement that for the main part the things this bill does around the redesign of financial eligibility, changes to the proceedings that are eligible for legal aid, the redesign of the payments scheme, and so on are all good and all positive.

The one outstanding matter that seems to stand in the way of the National Party supporting the bill is the remuneration rate. I again urge our colleagues on that side of the Committee to consider that if there are so many things right with the legislation, and that the one thing—

Hon Georgina te Heuheu: Who said that?

Each member that has stood up. With respect, I have heard a number of the member’s colleagues acknowledge there are a number of meritorious aspects to this legislation, but they take exception to the fact that $165 an hour is not adequate remuneration. That is the top rate. I am minded, as I look around the House at the expressions of some surprise, that that is the top rate—$165 an hour.

I simply want to say to the member—and I acknowledge our New Zealand First colleague Ron Mark has raised a very important point—that if members opposite genuinely want to engage in debate around the issue of the top rate of $165 an hour being inadequate, they should say how much would be adequate, and what the budgetary implications of paying that rate would be. That would then be lined up against all of the other issues those members raised as their priorities. The reality is that those costs have to be stood alongside every other matter that members opposite—and, certainly, members in the Government—have to determine as matters of financial priority on a daily basis.

So if members opposite are not willing to support legislation, which, by their own admission, has a great deal of merit, because of the single matter of remuneration, I would simply invite them to at least front up to the House with some clear numbers as to how much they would be willing to pay and to let us know what other policies that payment would be instead of, for that is the choice of any responsible political party that would be Government. How much would those members pay, and instead of what?

Is Ron Mark not a clever boy, then? He can stand up there without any notes, with just a blank page in front of him, and he can make a great speech—according to him. What a clever boy, is he not?

💬 Hon Member: Put him in your pocket and take him home.

No, thank you; I have better choices. I would suggest to Ron Mark that he remember his first year in this place and his first few speeches in the House. The people who he is ridiculing here tonight—

💬 Ron Mark: They are lawyers.

It does not matter in the least whether one was a lawyer, teacher, or farmer before coming here. Standing and making speeches in the House is not necessarily the same for a lawyer as making a speech out there in the forum he or she is used to. Anyway, is he not a clever boy? He should be a little bit generous and realise that some members in here are still finding their feet. He used to do that when he was here in his first year. He used to have notes, too—we all did. There is no shame in standing there and having notes. He should not put an argument down just because a member cannot do it from a blank piece of paper. We are not all clever like Ron Mark, but of course, he is feeling extra clever, because he has latched himself on to the Government. That member probably does not even like the Government, but for whatever reasons his party has, this time around, latched itself on.

I come back to the bill though. Labour likes to suggest and likes to pretend that it is a party for the poor, the disadvantaged, the low-income person, and all of those things. We know that it is not. In terms of access to justice it proved itself not to be the party for disadvantaged and low-income people when it put court fees up by a huge amount 3 years ago. Which people most suffer from that? It is the ordinary man and woman in the street. Ordinary New Zealanders are the ones who feel the brunt of those high court fees today. It is a little bit rich when Labour members want to turn this debate—their Committee stage contributions—into a debate about National looking after its rich friends. They should get over it; they should get rid of that envy. It is no sin to be well off. Actually, a lot of people work hard to be well off. So let us not focus National arguments on that issue, because that is not that issue at all.

I worry that if senior experienced defence lawyers are leaving that work to more junior people—which they are entitled to do—then who will suffer the most from that? It is probably the relatives of Ron Mark, myself, Hone Harawira, Pita Paraone, and other Māori in this House. It is probably our relatives who suffer most if legal aid work is not properly compensated for. I see Russell Fairbrother nodding. He knows that, because a large part of his defence representation was of low-income and disadvantaged people. So he knows very well who is likely to be affected first by those changes that do not adequately take into account the fact that poor people are entitled to access to justice.

Part of that access to justice is the role of the legal profession. Steve Chadwick knows that very well. She knows how hard her husband, John Chadwick, has worked in the years he has been in the law profession, representing those on low income, the disadvantaged—all the underdogs. I am sure that she knows very well how much of a burden that has been to her family, because it ain’t no Christmas party. It is all very well for one of the members on the other side to suggest that lawyers in private practice can make up for what they are missing out on with legal aid work by, basically, charging high fees for other things. That does not apply to a lot of defence lawyers who take on that work—it does not apply in the least. If one is a lawyer whose practice is largely Māori based and criminal work, one never makes up for it. Believe me, one never makes up for it.

So I say to those members on the other side who like to pass off National members’ arguments on the grounds that we are looking after our rich friends, we are not. I certainly am not.

I first of all would like to congratulate Mr Fairbrother on all the work that I have heard he has done in terms of legal aid for a lot of people who really cannot afford decent lawyers, and I also congratulate others who have been involved in that kind of work. I congratulate them all because it is not easy work.

I myself have been up to court on many, many occasions, and only once when I was a teenager did I use a lawyer. Every time after that I defended myself.

💬 Pita Paraone: Did you get legal aid?

I defended myself. The reason why I defended myself, even though I am not a lawyer, is because I could not trust the quality of the legal aid lawyers available. So I defended myself.

Progress to be reported presently.

House resumed.

The Chairperson reported the Taxation (Depreciation, Payment Dates Alignment, FBT, and Miscellaneous Provisions) Bill with amendment, and reported progress on the Legal Services Amendment Bill (No 2).

Report adopted.