Legal Services Amendment Bill (No 2)

This is a continuation of an important debate on the Legal Services Amendment Bill (No 2). I start by observing that one of the things the Government has done, in what I regard as an overly sneaky gesture, is to issue instructions to parliamentary counsel so there are minimal parts to debate. That is a clumsy attempt to stifle debate on what is clearly important legislation.

In earlier parts of the process, National made it clear that it has been really concerned about two aspects of the bill. Although it acknowledges the importance of legal aid, and its importance in a system that must work for the provision of legal aid to both offenders and people involved in the civil process, we have nevertheless been truly concerned about two aspects of the bill. Those two aspects are related to the way the bill was drafted—first, with those discretionary aspects that make it so unclear as to eligibility for legal aid, and, second, in respect of what we think is a glaring gap in the bill related to protecting the position of lawyers who are asked to undertake legal aid work.

I am conscious, in making those last few comments, that there will be those on the other side of the House who have no sympathy for lawyers who undertake legal aid work at rates that are way below the benchmark. I remind those members opposite that legal aid rates were set in 1996. The salaries of judges have moved on in an overly dramatic way, and the salaries of other professions have moved on, so it is surprising that the salaries of lawyers remain static.

I am comforted by the presence of the Attorney-General in the Chamber. I am sure that the background Dr Cullen brings to the legal profession and the obligations he owes to advance and protect its interests will be followed through faithfully in support of what we have judged to be a gap in the legislation. Certainly, it is appropriate to welcome him back to the role of Attorney-General.

The absence in the bill of an appropriate provision to fix legal aid rates—to advance that particular cause—breaches fairness and equity. At an earlier stage, I had an opportunity to talk about one aspect that is known under the tag line of the equality of arms principle. That is all about the fact that the Crown has huge resources, in a criminal context particularly, to prosecute offenders. So it is only reasonable, in a just and fair democracy, that those who are tasked to defend people accused of crime have a similar degree of protection and resource. It is quite right to say that criminal legal aid remuneration rates are too low, to the extent that they breach that principle of equality of arms. The principle is that the defence counsel should have the opportunity to prepare and present his or her case on a footing equal to that of the prosecution.

I ask tonight why the Government did not take up the proposal that the bill should have further provisions in it related to Part 1, which we are now debating in the Committee stage, to deal with that issue of legal aid. It is scarcely satisfactory, and I ask the Minister of Justice, the Minister in the chair, who is ready, willing, and eager to take a call, why an opportunity was not taken to deal with that significant issue.

I also say that the provision of adequate representation to people accused of crime is a principle that has been recognised in New Zealand case law as an essential facet of a fair trial, and as a fundamental human right that the Government must uphold.

Last night, in the Committee stage of the bill, we had a powerful address from Mr Fairbrother that showed just what a fine criminal lawyer he is. He said, and I agree, that service to the public is the hallmark of a profession. He said, and I agree also, that it is essential for young lawyers to understand their professional responsibilities. He said, and again I agree, that young lawyers need to enter the arena, get on their feet, and argue cases rather than just push paper—as too many do in the large law firms.

But what a shame it was that that was all irrelevant to the critical issue facing the Committee last night, which was the issue of access to justice for the poor. He accused me of delivering a generalised rant, and said that I provided no evidence of the problem of the increasing disparity between the legal aid fund for criminal barristers and what Crown solicitors are paid. But I put it to the Committee that the evidence is overwhelming. Mr Fairbrother read, as indeed I did, the New Zealand Law Society submission on the topic. He read the submission of the community law centres. He read, and I pointed out to him, John Rowan’s article in this month’s New Zealand Law Journal on the issue.

Mr Fairbrother’s speech was a very impressive speech, but it was not at all persuasive. Mr Mark, on the other hand, raised a very fair question. He gave National back-benchers an elocution lesson, which was probably rude and unnecessary, but, as I said, he asked a fair question: what will the cost be of increasing criminal legal aid rates? He is entitled to an answer, and I give him an answer directly now. National says that the way to address the inadequacy of criminal legal aid rates is, first, to institute regular—that is, annual—reviews of the legal aid rates, using the methodology set out in the Crown solicitor’s regulations, and, second, to have a good look at the market-based reforms that are planned for legal aid services in England.

It is one of the great tragedies of New Zealand that when New Zealanders elect Labour Governments, they tend to be left-wing Labour Governments, looking for inspiration to Sweden and other parts of Scandinavia. But if they looked at their brothers and sisters in England, they would find that the Lord Chancellor and Secretary of State for Constitutional Affairs is actually coming up with proposals to reform legal aid that are market-based reforms.

I refer the Minister in the chair, Mark Burton, to the February 2006 report—and I will get him a copy; I took it off the Internet last night—of Lord Carter on legal aid procurement. Essentially, in a criminal context, what Lord Carter is recommending, and what will happen in England by 2009, is fixed pricing for all criminal legal aid work, including work provided in police stations, Magistrates’ Courts, and Crown courts. It will be a managed market, awarding contracts to efficient and good-quality suppliers that can take on more cases—either individual firms or collections of firms formed to deliver the benefits of scale.

And the third way to address the issue is by managed price competition between efficient, good-quality suppliers, with safeguards to protect standards of quality, coverage in rural areas, and diversity.

So members can see there are answers to this problem that do not necessarily result in a blow-out of legal aid rates or the legal aid budget. We have to be able to be creative, and at the same time develop a system that will achieve what National has been going on about since last night—that is, ensuring access to justice for the poor.

Mr Harawira hit the nail on the head last night when he said that he had appeared in court on a number of occasions and, after one occasion, when he had a lawyer who was not up to the mark, he had given up and represented himself. He could do that, because he is a very bright and eloquent individual. But many people are simply not able to do that. They require the services of a lawyer, and too often they get duds. That is the concern of National. It is not being addressed by the legislation, and that is why we are opposing it.

I, too, would like to refer to some of the comments made yesterday, albeit without notes, by the honourable member Ron Mark. I have to say I am in total awe of his ability to speak without notes. Last night Mr Mark seemed to be fixated on how much money lawyers want. He said if we on this side of the Chamber could let him know how much we thought lawyers doing legal aid should get, then we might get the support of New Zealand First. How much do we want to pay lawyers? What do we expect them to be paid?

I see Mr Mark is here with his notes tonight. I repeat that the Legal Services Amendment Bill (No 2) is not about lawyers; it is about access to justice. If the environment of legal aid is correctly pitched by this House, then the market will determine what the rate of legal aid remuneration should be. If the environment of legal aid is correctly pitched, the exodus of lawyers declining legal aid work may be halted. But in this bill it is not correctly pitched. When prosecuting counsel have significant advantages in terms of time, preparation, resources, and remuneration—when the prosecuting counsel are at such an advantage over the defence counsel—it is not a level playing field and it is not fair access to justice.

We seem to have a fundamental difference of opinion in this debate. We on this side of the Chamber are concerned very much with the wider and more vital issue of access to justice. Those on the other side of the Chamber seem to be talking with envy about lawyers. I suggest that the wider issue of access to justice is the far more important issue that we should be debating in this House.

A legal aid system that is financially disadvantageous to legal providers, and thereby discourages acceptance of legal aid assignments by experienced practitioners, will undermine that access to justice in two key ways. It will affect the principle of counsel of choice. Insufficient remuneration rates will hamper that choice as more and more lawyers are forced to exit from the system. It is not uncommon for eligible members of the public to have to contact several practitioners before finding one who will be available to act for them. A system that is financially disadvantageous to legal providers will encourage the likelihood of less experienced counsel undertaking legal aid work, with greater risk of errors, miscarriage of justice, and less skilled judgments, and consequently more appeals at even greater cost.

At present there are huge financial disincentives for lawyers to undertake legal aid work. There are also huge bureaucratic disincentives for lawyers to undertake legal aid work. The bill is deficient in that area. For example, the bureaucratic disincentives include a multiplicity of forms prescribed by the Legal Services Agency that correspond to each stage and each type of proceeding. Lawyers normally fill out those forms on behalf of their clients—a task that is both time-consuming and largely unpaid. Legal aid grants unduly restrict the hours allowed for in each step of the proceedings. Preparation time is limited, yet it is significantly shorter for the accused than it is for the prosecuting counsels. Disbursements relating to a legal aid matter must be paid for by the lawyer in advance, then claimed back after the matter is disposed of. Why should the lawyer have to cover those disbursements in advance? A complicated, comprehensive scheme for prior approval of estimates, examination of invoices, and auditing of completed work also adds to the bureaucracy that is imposed by the bill.

All of those additional regimes create greater compliance costs for legal aid providers and are further disincentives to undertake legal aid work.

Because I am sure the debate on Part 1 is coming to a close, given the amount of repetition we are hearing, a brief wrapping-up statement from me is perhaps appropriate.

Notwithstanding the numerous speeches we have heard from members opposite, what they all amount to is that, overall, they think the bill contains a number of useful and positive measures dealing with the redesign of the financial eligibility criteria, and a range of other details.

The one thing we have heard members opposite tell us repeatedly, ad nauseam, that they are unhappy with is the $165 an hour maximum rate. I draw that to the attention of Opposition members because—as Mr Mark invited them to do last night—if we are to have any useful debate on that point, they should at least introduce into the debate their alternative rate, so that we can understand what the consequences would be of what they are saying. Otherwise, it is pointless rhetoric.

I invite Dr Worth to look back at what the National Government did when it was given the opportunity. In 1998 it put the rates up and in 1999 it put them back down to where they had been. So when that member comes here and sheds crocodile tears about the rates, it is a bit difficult to take.

I simply say that this bill will progress. The question is whether members opposite will join us in advancing worthwhile, positive legislation, and accept that there will be further opportunities to discuss the issue of rates of reimbursement. I suggest to them that it would be far more useful to get on with this and enact the legislation. I am happy to engage with them later about the issue.

💬 Dr Wayne Mapp: What does later mean?

Once we have this legislation in place and bedded in, we can look at its implications and consequences. Then it will be appropriate to review a range of matters to do with the legislation, including reimbursement and hourly rates.

I rise to address the issues the Minister has just talked about that were raised last night. I will preface my remarks by drawing some analogies. For a medical specialist the hourly rate for working in a public hospital is lower than the hourly rate for working in a private hospital. For instance, in Taranaki it would take 55 minutes to get a knee replacement in a private hospital and 1½ hours in a public hospital, because the hourly rate in a public hospital is lower. An accountant who gives budget advice or a psychologist who sees Accident Compensation Corporation clients does so for reasons other than money—to meet a social need—and has to make a judgment sooner or later as to how much time to allocate to doing such work at a lower rate.

The fact that a lawyer may make such a judgment does not mean he or she is as tight as a snapper’s arse or is only self-interested. That seems a reasonably fair point to make. Talking about lawyers’ wages or hourly rates is a bit like talking about the same thing with regard to MPs—one does not talk about it, because everyone has already made an assessment. Sooner or later people engaged in activities such as legal aid work need to balance their needs and the needs of the community they serve. I wonder how keen this Government would be—or any Government would be, for that matter—to allow children in low-decile schools to be taught by teachers who are paid about a third less than we pay teachers in high-decile schools. That is the sort of argument we get into.

Let us look at the Crown Solicitors Regulations 1994 and make a few comparisons. For instance, the Minister keeps quoting an hourly rate for legal aid of $165. I must tell the Minister that that figure relates to what a Queen’s Counsel receives for doing a murder trial.

A question was raised last night by our good friend “Mini-Me”, or whatever his latest nickname is. I have done my best to do some research and give him the answers. Let us just wander through that. As a brand new, wet-behind-the-ears junior legal aid counsel I got $95 an hour—or my firm was paid $95 an hour and I got $20 an hour. In fact during the 2½ years I worked as a lawyer I was never paid what I was paid as a cop, and I have to say that I worked a damn sight harder as a lawyer. So the top hourly rate on legal aid is $165 an hour. The top rate for a Crown solicitor is $216 an hour.

Let us look at other provisions lawyers are given, too—for instance, the preparation time for sentencing. A senior counsel, who might be earning anywhere between $130 and $160 an hour, gets, say, $450 for preparing a sentencing, but a Crown solicitor gets 7 hours’ preparation time. The legal aid counsel gets 3 hours’ preparation time, but the Crown solicitor gets 7 hours. We should not forget that the Crown solicitor has the police officer who prepared the file handing it to him or her on a plate, and the Crown solicitor prepares the sentencing notes from that. The question was asked last night and I am trying my best to address it, so I hope members will give me a little bit of indulgence.

The next point, though, is that the legal aid solicitor gets, say, $450 for a sentencing. What does the Crown solicitor get? The Crown solicitor gets $1,512, because he gets extra time. Let us have a look at travelling time—this is interesting. A legal aid solicitor gets half the hourly rate or pretty much a flat $70 an hour for travel, if travel time is granted. But travel time is not granted, for instance, if the legal aid solicitor is working in a court that is away from his or her own patch.

I have just come off the phone after talking to a bloke who happens to work in Wanganui. He has been asked by the Bar in Auckland to look after a particularly difficult murder trial. He will fly to Auckland and he will get a rental car, but none of that will be paid for by the Legal Services Agency, and his rate will be $165 an hour. He will not have his air fares paid or any travel time paid, because he is working out of his own patch. But, for instance, if he was a Crown counsel and it was decided that he would go and move out of his patch, all his expenses would be paid for, including his accommodation, his vehicle travel, and his air travel.

💬 Dr Richard Worth: What does the Minister say to that?

I am answering some of the questions that the Minister asked last night.

I move, That the question be now put.

This bill extends the criteria for people who can apply for legal aid, but at the same time it does not adequately provide for an enhanced funding regime for legal practitioners. That is the problem National has seen in this bill, because there is a crisis for legal aid practitioners. They are suffering from having low payment rates and high administration costs. The implication of this lower standard and lower level of representation falls on our most vulnerable people.

New Zealand First has argued two things. First, that National should specify the amount. That is simply not good law. The law needs to be flexible to recognise changes in the future. The answer is that we review the process, and the legislation should contain a process. Secondly, New Zealand First members say that National is trying to feather the nests of rich lawyers. That argument fails, on two counts. First, wealthy lawyers will not even do this work, because legal aid returns are insufficient. Second, historic cases set a precedent.

The biggest historical case involved a member of this House, and he is the Rt Hon Winston Peters. One of the greatest legal expenses ever paid by this Government to an individual was to the leader of New Zealand First. That is true. It was also for the benefit of Mr Mark and his party; they are still here in the Chamber because of the money the Government paid for legal services. Do members know what it was called? It was called the wine-box inquiry. Members remember the wine-box inquiry—it was money paid to New Zealand First to keep its members in this Chamber. The Press in 1999 stated that $1.45 million was paid, and $1.44 million of that was paid in legal fees to Mr Mark’s leader. Mr Peters was reported as saying it was a good investment.

I find it extremely rich and unconscionable for members of New Zealand First to deride National’s arguments. National has stood and argued for the interests of justice and that there needs to be a funded legal aid system. It is really rich and unconscionable for the likes of Mr Mark to argue against the availability of competitive legal services, when his very position in Parliament is based on having Government funding for New Zealand First legal fees. It is rich and unconscionable for Mr Mark to argue against ordinary New Zealanders getting the level of representation that he enjoyed to keep him in this Parliament. It is rich and unconscionable for Mr Mark to make disparaging comments about National’s intentions when he himself was the beneficiary of Government money that keeps him in the Chamber. At the time of the wine-box inquiry Mr Mark and other members of New Zealand First were willing to put out their hands and take the best legal advice available. They were afraid to fight a case under-resourced; they wanted everything they could get.

The CHAIRPERSON (Ann Hartley): Order! The member needs to come back to the bill.

OK. Under section 92 we are arguing that there is not the level of representation, because legal aid is not being funded. Why then is it good enough for New Zealand First members, but not for ordinary New Zealanders, to have an adequate level of representation? That is the key. Why is it good enough for them but not for ordinary New Zealanders who could be going to jail to get that adequate level of representation? That shows the double standard of that party—a party that takes with one hand and is not willing to give to the ordinary people. Those are the people that we are here to represent. We should be delivering for them, not just keeping people in Parliament through legal costs.

I move, That the question be now put.

Interesting. It is an interesting notion that this Committee should consider paying lawyers—

💬 Dr Richard Worth: I raise a point of order, Madam Chairperson. You would know that points of order should be put tersely. They do not start with “interesting” pause “interesting”. It is for the member, if he has a point of order, to raise the point of order.

The CHAIRPERSON (Ann Hartley): Mr Mark has the call.

Even more interesting is that that is the quality of legal representation the National Party is defending—a man who is so out in fairyland that he does not even know where the debate is, and cannot tell that the member on his feet is not raising a point of order but has actually been awarded the call, and that man stands up and dares to ask the nation to pay him $400 an hour to do legal aid work. At least that was the figure put up by his colleague Chester Borrows. That man wants to be paid more for legal aid services, for the quality of his representation, and he cannot even keep track of where the heck the debate is in the Committee. What sort of a legal representative would he be for the fine men and women of the Road Knights gang when they seek representation for their criminal activities?

The claims that David Bennett has just made in this Chamber border on contempt and defamation, and contain so much in the way of inaccuracies that I am sure of one thing: New Zealand First will go through his words in Hansard with a fine-tooth comb, and I have no doubt that if he dares to say those things outside this Chamber he will be seeking legal aid to defend himself against defamation. But, of course, that is the whole trick. What he would do is defend himself and hopefully get paid more than just his MP’s salary, in which he has just had a massive increase—because, not being satisfied with that huge leap in his income, he now stands in this House and bays for more money for his professional services. We have seen an example of those services tonight, and they can only be described, in the most charitable terms, as somewhat lacking. I have sat in the House and listened to the debate go far off the mark—

💬 David Bennett: I raise a point of order, Madam Chairperson. It took Ron Mark about a minute tonight to utter more than the word “interesting”, which is quite unusual for someone of his oratory ability. That just shows that he was stunned. So comments like he is making now are inconsistent with the approach he is taking.

The CHAIRPERSON (Ann Hartley): That is not a point of order.

Again I ask: how deep does one have to dig the hole to prove to the nation, on air, how lacking one is in skills and ability to articulate one’s case and to justify what one seeks? If anything convinces me that there is a need to look at this issue a little more closely—and I do note that this bill extends the amount of legal aid, or the opportunity for legal aid—it is that we are talking about 1.2 million people being eligible for legal aid. That is an increase of about 450,000 or 500,000 people. If we now add on top of the current legal aid bill the cost brought about by another 400,000 people being eligible for legal aid, and if we then compound on top of that the increases in fees that the honourable Chester Borrows is suggesting—$400 an hour—I come back to the same question. What cost this policy, and how can one afford such a huge increase in the budget whilst one is, at the same time, espousing the need for tax breaks?

Why should we expect the average New Zealander—the hard-working businessman or woman—who is out there grafting, to pay these fees for the Road Knights, the Epitaph Riders, the Mongrel Mob, or the Hells Angels, who have been plaguing the streets of Wanganui and every other city peddling their evil through methamphetamine? Now, learned scholars and competent lawyers such as the honourable Mr Finlayson here would probably have a good argument. It would be based on equality of justice for all, no matter how big a scumbag that person is. Those arguments I can listen to. But the plain baying for money with incoherent arguments that simply do not, actually, flatter the person who makes the argument bear no weight for New Zealand First. I would much rather hear from National: how much money and over what period. Then we could get to the chase.

I move, That the question be now put.