Legal Services Bill

I move, That the Legal Services Bill be now read a second time. I thank the Justice and Electoral Committee for its careful consideration of this bill. Legal aid was first provided in New Zealand in 1912. It was based on the principles that legal assistance be provided to persons of insufficient means where that was desirable in the interests of justice. These principles remain features of this legislation, but the bill fundamentally reforms the legal aid system to ensure its viability for a second century of service. The reforms respond to Dame Margaret Bazley’s review of the legal aid system in 2009. This review found that the legal aid system is facing significant challenges, which, if not addressed, could result in service delivery failure and threaten the future viability of the system. These risks include the variable quality of legal aid services, inefficiencies created by overly prescriptive legislation, and service delivery issues.

The bill includes a number of measures to improve the efficiency and the effectiveness of the legal aid system. In particular, the bill transfers the administration of the system to the Ministry of Justice and establishes an independent statutory officer to administer those functions that require independence. Importantly, the bill also introduces a new quality-assurance framework to ensure that legal aid lawyers meet appropriate standards. I am pleased that the committee has agreed with the overall policy direction and intent of the bill.

The committee received 24 submissions from lawyers, community law centres, and the general public. The majority of submitters considered that there is a need for reform, and provided suggestions as to how that could best be achieved. A provision that received a number of submissions was the disestablishment of the Legal Services Agency and the transfer of its functions to the Ministry of Justice. This proposal will ensure that the legal aid system supports the effective operation of the courts and that legal services align with other Government initiatives that enhance access to justice.

The committee carefully examined this provision and considered that the Legal Services Commissioner provides the necessary level of independence for those functions that require separation from the Government. The commissioner will be responsible for making decisions on individual applications for grants, determining the level of repayments, assigning providers to clients, and managing cases assigned to salaried lawyers such as those in the public defence service. Other functions will be administered by the Secretary for Justice, who will assume overall responsibility for establishing legal services to assist those in need. The secretary may delegate other functions to the commissioner but will retain responsibility for them.

A key change in the bill is that prescription around some of the legal services has been removed. This will allow the Secretary for Justice the flexibility to modify schemes over time to ensure that the needs of legal aid clients are met in an efficient and effective manner without being restricted by outdated criteria. The committee recommended making it clear that the secretary may undertake or fund law-related education and research. Actually, this is an important aspect of any legal aid regime. I thank the community law centres for their helpful submissions, which drew attention to that matter. Community law centres provide a valuable service for New Zealanders and will continue to play a very important role in the new regime.

A key focus in the bill is on enhancing quality in the legal aid system. Frankly, this responds to concerns about the variable quality of legal aid services and the inability of the current system to address problems with lawyers who exhibit poor practices and are failing to perform. The bill introduces a robust approval process to ensure that all legal aid providers have the skills to do the job assigned to them, with appropriate sanctions where approved providers do not meet the required standards. The committee made a number of useful recommendations to enhance the operation of the new quality assurance regime, including the processes for approving, or declining, approval to provide legal aid services. The committee also provided helpful recommendations relating to clarifying the roles of the performance review committee and review authority. In addition, the committee recommended removing the time limits on applications for judicial review of a decision by the review authority, which will allow the court to consider applications for review on the basis of merit, without having regard to a time frame. These proposals will ensure that the review process is fair as well as being cost-effective.

A key proposal in the bill is that the Legal Aid Review Panel will be replaced by a new tribunal, supported by the tribunals unit in the Ministry of Justice. The committee also made suggestions that improve the processes for reconsidering and reviewing decisions of the Legal Services Commissioner. In particular, the committee considered that it was important for the chair of the new Legal Aid Tribunal to be able to accept a late application for a review of a decision by the new Legal Services Commissioner.

The Legal Services Bill demonstrates the Government’s commitment to improving the operation of the legal aid system and the quality of services provided. Ultimately, the bill, along with many operational changes under way, will establish a system that will deliver high-quality legal services to those who need them, and, importantly, to the taxpayers who pay for them. The bill will help restore confidence in the legal aid system.

In conclusion, I thank again the Justice and Electoral Committee for its careful consideration of the bill, and the public for their submissions. I thank the people and organisations who took time to submit on this important bill. The proposed amendments represent important improvements, which will enhance public, and provider, confidence in the new legal aid regime. They will ensure that access to justice is maintained. I am confident that the changes recommended by the committee will improve the operation of this legislation. I commend this bill to the House.

I agree with much of what the Minister said in his address on the Legal Services Bill. The Labour Opposition supports this bill. It is a timely overhaul of the way in which legal aid is provided, and it will have a particular impact in respect of criminal legal aid. The inquiry by Dame Margaret Bazley did find that there was some poor practice.

In the Justice and Electoral Committee we heard from retired High Court Justice Hansen, who used to be the executive judge for the South Island. He is very experienced and has been brought in by the Government to try to oversee improvements to some of the legal aid procedures in New Zealand. One of the things that he told us related to the preferred lawyer regime that we currently have. That means that it is the right of defendants to choose who should represent them, even if that representation is being paid for by the Crown. This bill changes that practice so that for lower-level offences—those in categories 1 and 2—defendants will be, effectively, allocated a lawyer in most cases. From memory, there is discretion for the judge on occasions to override that. Mr Quinn might be able to correct me on that point if I am wrong. But I think that was to be retained, because there are some occasions where an accused has a history. He or she might have mental illness problems. There can be problems known to a previous lawyer, and that knowledge can facilitate the conduct of the person’s defence and also facilitate the administration of justice generally. So there needs to be some flexibility around that issue.

None the less, we were convinced by what we heard from officials, submitters, and Justice Hansen that, by and large, the principle that one should allocate these cases to lawyers who are on the legal aid roster—rather than letting people choose their own lawyers—is a good thing. We heard about cases where the existing rules are, effectively, being abused by a small minority of lawyers who manage to line up for most of the cases, despite, according to Justice Hansen and some of the other people, actually sometimes being the least competent of counsel. Just because those lawyers are good at running the relationship with the accused person, that does not necessarily make them good lawyers, even though they are good at convincing their accused clients that they are the person for them. We were convinced at the select committee that making that change to the existing rules was necessary.

I must admit I was quite shocked to find out how much some people were being paid by the State for the provision of legal aid services in relatively minor cases. I think the amounts that were being earned were sometimes more than a quarter of a million dollars per practitioner. That is a lot of taxpayer money being spent on a relatively small number of people for the provision of legal aid services. It did seem that some of the practices that had been identified by Dame Margaret Bazley, and that had been referred to by the officials and by Justice Hansen, needed to have some response made. This bill seems to be an appropriate response to those practices.

One of the other areas that we heard was a problem was that if someone is alleged to be incompetent, then effectively a complaint can be made by, or to, the Legal Services Agency, but then it gets sent to the district law society. The society does not really have control of the funding functions at the legal aid end of the equation, so there has been a disconnection between the disciplinary processes and what should be funded through legal aid. Quite often there could be poor practice of the sort whereby the Crown, in paying the bill, would say that person should not be engaged again. But under the existing rules it was very, very difficult for the Crown to actually stop paying incompetent counsel.

The remedies that were left were effectively a sledgehammer, because the Crown would just about have to go to the Law Society and say the person ought to be struck off. That could have been too great a penalty for the behaviour that was being complained about, whereas it would have been perfectly appropriate for the legal aid people to say they did not want to engage that particular counsel again. Despite the common-sense nature of that proposition, which I think I have just put, the system did not allow that to happen. The new system will now allow for a better monitoring of complaints about quality. It will allow complaints to go to the controllers of funding through the legal aid system, rather than being treated as a disciplinary matter for the Law Society to attend to through its route.

I am sorry, but I should have mentioned earlier something else in terms of the preferred lawyer scheme. We heard from Family Court lawyers that it was important that continuity be maintained, particularly in respect of issues like counsel for the child. Where there are disputes that relate to children, it is desirable that the same counsel be appointed to represent their interests. At least at the moment it is provided for in the family law area that there is still choice on the part of the person who needs a lawyer as to whom that person appoints as the lawyer, even if the lawyer is being paid through legal aid. Legal aid is, at least theoretically, a loan rather than a grant, and it is meant to be repaid over time, although obviously people who are on the lowest income generally do not end up paying much back.

I also agree with the comments made by the Minister in respect of the clarification provided in the bill that legal education is something that can be funded through the new authority. Community law centres were concerned that that was not the case. I think that at the committee too, although we agreed with that, we also had a general view that it is important that legal aid services do not cross the line from education into political polemic. I have on occasions seen legal aid centres that were set up primarily to provide legal advice primarily to people who would not be able to access a lawyer for small legal problems. Sometimes centres tend to involve themselves in political causes rather than legal causes, and that is, I think, a line that should not be crossed. Hopefully, through this legislation we will enable the funders of community law centres to appropriately fund education as well as legal advice services, whilst not crossing the line into funding political campaigns. And by that I do not mean political party campaigns; I mean campaigns for change, which I do not think are generally within the centres’ primary purpose.

In relation to another minor change that was made, the Law Society was concerned that some of the language of the bill implied that some of the work now conducted by lawyers might be carried out by non-lawyers. That was ambiguous in the legislation, so we tidied that up. Because court administration and the rights of the accused and defendants are best protected by lawyers, we wanted to make it clear that we were not trying to remove the requirement that lawyers appear for the accused.

The Regulations Review Committee had concerns about some of the exemptions to the regulations that were able to be brought about by those who would be administering the scheme. We looked at those carefully, and on reflection we thought that the powers that were being conferred were appropriate.

We heard from Justice Hansen in respect of the preferred lawyer scheme. He actually thinks that we should have a roster for even more serious cases. He thinks that the case for defendants to have a choice of lawyer in respect of category 3 and 4 criminal offences is not strong, and I think we may have to revisit that issue in the future.

Another area that I think has yet to be tidied up concerns legal aid in criminal appeals. It used to be the case in New Zealand that the gatekeeper for criminal appeals was, effectively, the Court of Appeal. But a Privy Council case decided that that was inappropriate, and that the same judges who would be considering the merits of an appeal ought not to have a hand in the decision about whether the accused is granted legal aid for the appeal. I can understand the logic behind that, but in my view someone should be a gatekeeper, and at the moment we effectively have a position where the State takes an obligation upon itself to fund virtually every appeal on a criminal matter where someone wants to appeal, without regard to the merits of the appeal. Although I think it is very important for an accused person to have access to justice and have the ability to appoint a lawyer, I am not convinced that that means the Crown should always have to fund every criminal appeal, even if it is not meritorious. I think that if there is not some sort of scrutiny of the merits of appeals, more appeals can end up being funded through a criminal aid system than would happen if people did not have legal aid.

I will take only a brief call in this second reading of the Legal Services Bill, given the fact that I think members on all sides of the House agree with this bill. As the Minister said in his address to the House, this bill really is about reframing the legal aid system—a system that this Government absolutely believes is essential to the exercise of a fair justice system within New Zealand society, but that is in need of reframing for the 21st century we are now in. So it is appropriate at the beginning of the century, as the Minister said, that we take stock and ensure that the issues that have arisen are addressed.

A number of amendments were proposed to the bill itself, coming back from the Justice and Electoral Committee, and I will not cover those now, as no doubt we will have plenty of time in the Committee stage to go through them. I just say that one of the issues that came up, and that I was pleased to hear about when we heard from Justice Hansen, concerned the practice that has let down the current system. It is the fact that—dare I say it—the lawyers who rely on the legal aid system currently for the basis, if you like, of their income, have got lazy, and there has been no process that has required them to undertake continual upskilling and education. As a consequence, that has led in some cases to a rorting of the system, and of course at the time that the report came out there was a lot of focus on the Manukau District Court.

There are a number of issues that this bill addresses, and that the new system will address, and I have alluded to just one. I also acknowledge the work of the Justice and Electoral Committee. It was undertaken in a very harmonious and cordial way—as of course it always is in that select committee—under the excellent chairmanship of its chairman, Mr Chester Borrows. There were equally excellent contributions from members on all sides of the committee. We were able, I guess, to be guided by the experience of Mr Parker, who in a very humble way informed us that he was one of the architects of the very first community law centre, which I think he established in Dunedin. So we had his expertise in that area, and exposure to that, as part of the process. With those few words, I tell the House that it gives me great pleasure to support this second reading.

It is my pleasure to speak on the second reading of the Legal Services Bill. I begin by agreeing with the comment made by my colleague Paul Quinn about the way that the members of the Justice and Electoral Committee really worked together on this bill, as it does on most bills that come before it. I also express my sadness that I am no longer a member of that select committee. I really enjoyed the opportunity to be on a committee chaired by Chester Borrows, who always conducted himself with integrity, and I will miss his good grace. But I was a member of the committee when it considered the Legal Services Bill.

As has been pointed out, this bill probably would not exist in this form had Dame Margaret Bazley not completed a scathing report on the way that legal services were provided in New Zealand. I think it is important that as a Parliament we responded to that report with speed, because one of the important pillars of our justice system is that people continue to have confidence in it. In particular, when it comes to people accessing the justice system, which so often is eased by the availability of legal aid, it is important that people have confidence that they are getting a high-quality service, and that, at the same time, we are getting value for money for the taxpayer dollar.

I will touch on one particular point, first off. The committee heard very early on from the Legal Services Agency board that there were concerns amongst the legal fraternity in Manukau that the report had cast a dark shadow across all of the legal profession in that area. We need to keep in perspective that, of course, not every lawyer working in that area was rorting the system. However, Dame Margaret Bazley made the statement, and I am not sure it was backed up by evidence, that 80 percent of lawyers working in legal aid were gaming the system, and that approximately another 200, she believed, were rorting it—“gaming” being using procedural points within the court system to delay proceedings and therefore draw down further legal aid payments. Labour members called on the Minister of Justice to meet with the Bar in South Auckland in order to smooth the way forward, and, in particular, to ensure that when these changes are implemented it is done smoothly, and we do not allow a perception that all lawyers working in the legal aid system are rorting it, because that certainly is not the case.

I will touch on a couple of things that my colleague David Parker has already talked about. We are pleased to see the extension of the Public Defence Service; that was something Labour raised in 1999. Via a pilot scheme, we found we could save up to a million dollars by having salaried lawyers available as public defenders, and we could also have standardisation of high-quality defence. I am pleased that that will be rolled out in other centres. I would not mind, though, if the Government could explain something. Dame Margaret Bazley made suggestions about where the scheme should be rolled out. The Government has responded by rolling it out in only Hamilton, Wellington, and Christchurch. I believe Palmerston North has been left off the list, and I would be interested to know why that is the case.

I am also pleased that the Government and the select committee were able to work through some of the very important issues raised by the community law centres; I will come back to that. Also, I will very quickly make the point that it was frequently raised with us that when we bring in an agency that previously sat independently of the Ministry of Justice, we should ensure that the lines of reporting are transparent and have enough separation from the Secretary for Justice and the Government to allow the public to have confidence that there is good separation of powers. I think we managed to ensure that, in the end.

There is one area where I continue to have a couple of concerns. The Legal Aid Review Panel is disbanded under this bill, and the legal aid review function will be carried out by the Legal Aid Tribunal. The board that existed specifically to give the community law centres access to the Minister of Justice has also been disbanded. There was concern amongst the community law centres about their lines of communication with the Minister of Justice. We reached a middle ground, I guess. We assumed that the requirements in this bill of the Minister of Justice essentially capture a requirement to continue to liaise and communicate frequently with the community law centres. But that is not explicit in the legislation. Although we might be confident that the current Minister, Simon Power, would conduct himself in that way, because he has continually expressed his support for the centres and has demonstrated it in times of funding shortages, that conduct cannot be guaranteed when we move through Ministers of Justice. I am still of two minds about whether we have written in enough protections for the community law centres, but at this stage I am willing to proceed. There are protections in this bill; whether they go far enough will be tested. That is something I would encourage the community law centres to continue to monitor, and I encourage them to come back to Parliament if they find that that relationship is inadequate.

We have heard David Parker talk about the select committee’s discussion of the preferred lawyer issue, and I would like to put it on record again. On the face of it, removing the ability for defendants to choose who should represent them in low-level criminal cases—and I want to make that distinction; it is only in low-level criminal cases—may seem a backwards step. But it was very interesting for the select committee to hear evidence that demonstrated to us that a person having a preferred lawyer does not necessarily mean that he or she has the best lawyer available. In fact, Dame Margaret Bazley’s report demonstrated that backhanded payments were going out for referrals to particular legal aid lawyers. Often there was a cycle of those who were most frequently used becoming the preferred lawyer by default, when, in fact, they may not have been any more competent than another lawyer who was used far less often.

Also, we were satisfied that there was discretion built into the legislation, as David Parker said, to allow for continuity of lawyers in cases that involve domestic violence or children, where continuity is important, and also in cases where it may be important to make sure that defendants who have a language barrier, for instance, are appropriately paired with lawyers who can communicate with them. We felt there was enough discretion in the bill to make sure that that could still occur, and we were satisfied by that. That, coupled with the fact that there was a threshold, which meant we were talking about not serious criminal cases but lower-level cases, meant we were satisfied that removing the preferred lawyer at that level was an appropriate measure.

I will spend my final few moments reflecting on the concern brought before us by the community law centres in relation to legal education. It struck me by the end of our hearings that perhaps there was a misconception about the level of change between the current Legal Services Act and this bill. The definition of “legal services” in the Legal Services Act includes provision of legal education. This bill does that, as well, but it is slightly separated out. So I will point out, for the record, that the definition of “community legal services” in clause 4 of Part 1 states: “ ‘community legal services’ means any 1 or more of the following services that a community law centre provides … : (a) legal services: (b) law reform and advocacy work”. The clause further on defines what legal services can include. The definition of “legal services” states that “in relation to legal aid, [it] means legal advice and representation”, etc., then states in paragraph (b): “legal advice and … the provision of legal information and law-related education”. So although it is perhaps not as succinct as the current Act, there is still a connection in the definitions.

To make it even clearer, the select committee, which did hear the concerns of the community law centres, added under the functions of the Secretary for Justice in clause 68 a specific measure, paragraph (fa), which states that one of the secretary’s functions is to “undertake or fund law-related research and education;”, as well. So not only does it sit under the definition of services provided by the community law centres but we have made it a specific task of the secretary, as well.

Let me begin by reiterating, not for the first time, an appreciation of the manner in which the Justice and Electoral Committee operates under the benign and competent chairmanship of Chester Borrows. We tend to repeat this every time, and I just wonder whether Mr Borrows is starting to feel certain ennui in terms of the accolades that are being given to him every time; perhaps we can relieve him of this in the future and regard it as read each time. But I do not intend in any way to diminish the sincerity with which I say that. It is a good committee; it cooperates very well indeed. That said, I would not wish the House to wax under the misapprehension that Mr Quinn offered—that all was total harmony and sweetness and light on the Legal Services Bill. The Green Party does remain opposed to it. Although, for reasons that I will explain later, I do take personal responsibility for part of that misapprehension arising.

Let us recall, for the moment, the basic aim of the bill is to reform the legal aid system by replacing the Legal Services Act 2000, and that aim and method is based on the Bazley report, which, of course, was delivered not just by one person but by a group of people. The report recommended a variety of reforms, which can be boiled down to four principal reforms. The first is to disestablish the Legal Services Agency, transfer the administration thereof into the Ministry of Justice, and create a separate independent statutory officer. Secondly, it recommended replacing the Legal Aid Review Panel with the Legal Aid Tribunal. Thirdly, it recommended increasing the quality assurance, performance management, and application processes for the greater efficiency of justice. Its fourth and final recommendation was to clarify that legal aid can be obtained for Waitangi Tribunal proceedings.

The Greens certainly have no difficulty with the fourth point; we are in favour of that. But we did have difficulty with the other three reforms, such as the transformation of the Legal Services Agency, to be folded into the Ministry of Justice. We prefer that it remain at arm’s length from the Government to avoid any potential conflict of interest. Jacinda Ardern spoke about a certain confidence level from the public being required for that, without really offering views as to how that could be obtained. For our part, we are a little less convinced that that would be obtained automatically. So we are not convinced on the merits of that. The second reform of replacing the panel with a tribunal that would be chaired by a non-lawyer is one that we remain opposed to, notwithstanding the committee’s deliberations. We think that casts an aspersion on the legal profession that is unwarranted. The third reform deals with the zeal for administrative savings, and greater efficiency and value for public funds is a principle. But if it tarnishes the equal or greater principle of natural justice, then we have to pause. We are fearful that natural justice is being tarnished. So with due regard to the constructive discussions within the committee itself, we are not persuaded that our basic concerns have been met, and we are not alone.

I will quote simply one submission from a well-recognised legal authority in New Zealand, Tony Ellis: “The Bazley report upon which the Bill is premised is not the silver bullet many believe it to be. The report contained many unsubstantiated and unnecessary attacks on lawyers particularly on those from Manukau and Palmerston North, which were unsupported by any meaningful evidence. This exposes the legislation to what in reality is happening. There is no real effort to attack the problems within the system, just a smoke screen brought about by a desire to save money triggered by a public denunciation of lawyers’ incompetence by the Bazley report.” I know these matters are complicated, and I know there are problems within the legal aid system. But let us not engage in the misapprehension that this bill, which will no doubt become law, is the silver bullet to all of that, or that opposition to it is misguided, because it is shared by learned, legal authorities. It is not for the first time, I think, that legislation being pushed through the House by the Government, with great respect to the Minister and the chairman, is not necessarily perfect. So for our part, we feel constrained to continue to oppose it.

That said, I will say a word on the procedure with a note of personal apology. We in the Green Party had offered opposition, as I have described, and I did my best in the committee to explore those issues. It so happened that at the end of last year, at the beginning of December, on personal family reasons I was called away from the House and from Wellington. I missed to the day the draft report coming out on 2 December and the committee discussion on 9 December—the 10-day period I was away covered those dates. As a small party we were unable to have someone present at the time. I take the responsibility upon myself that I should have got word through that we continued to oppose it, which would have meant that the select committee report would have read “by majority”. But I was so preoccupied that I did not do that. I apologise to the House. I would just like it understood that the Greens continue to oppose this bill in the second reading. We look forward to further discussion, perhaps in the Committee of the whole House and in the third reading, but it would take something for us to alter our minds at this stage.

Kia ora anō tātou katoa. In talking to the Legal Services Bill, I say that the Māori Party is pretty proud of our stand in placing the constitution firmly in front of our coalition arrangement with the National Party, and hopefully standing strong in our determination to support human rights of all people by ensuring their access to justice. The call for justice, after all, was what motivated our work to reverse the previous Government’s decision not to sign up to the United Nations Declaration on the Rights of Indigenous Peoples. Access to justice, specifically through restoring access to the courts, has been pretty pivotal in our role with the Marine and Coastal Area (Takutai Moana) Bill that will be heading to the House in the next week or so.

We come to the Legal Services Bill with a view to understanding how this bill, in replacing the current Legal Services Act 2000, will improve the situation for all New Zealanders. There is no denying that reform needed to happen. Dame Margaret Bazley, as others have mentioned tonight, left no room for doubt when her review highlighted a range of deficiencies within the legal aid system. These included the variable quality of legal aid services, as well as some serious service delivery issues.

A key recommendation from the Bazley report was that “stronger coordination between community law centres and central government” is needed to ensure community law centres are able to help the greatest number of people for the funding that is available. We have taken a particular interest in the potential of this bill to ensure much-needed services for Māori can continue to be delivered. As Dame Margaret said, “if the legal aid system fails Māori, it fails altogether.”

As electorate MPs each of us will have had experiences of clients who have alleged that their lawyers are incompetent or corrupt. We have heard too many stories of legal aid lawyers dragging the legal process on for long periods of time, indefinitely, to get repeated chances at fees. It is what Dame Margaret reported as milking the system. There are plenty of other stories of legal aid lawyers who have recommended guilty pleas rather than actively taking up the interests and rights of many of their Māori clients.

Of course, the stories of delays and deferrals are fairly legendary. We all remember the situation of 18 defendants caught in the spotlight of 15 October raids on Ruātoki. Their applications for legal aid were lodged more than 4 months before they began to be processed by the Legal Services Agency. I remember that at the time, the day that Dame Margaret Bazley’s recommendations were released, Annette Sykes shared her view on Te Karere that she approved of the changes to invest in the competency of legal aid lawyers. It was her view that too many Māori were frustrated by the poor quality of the work undertaken by those lawyers.

Dame Margaret Bazley’s report revealed that there was a small but significant group of lawyers who were abusing the system. We welcome the move in the Legal Services Bill, to the effect that lawyers will now have to sit competency tests before going on the legal aid roster. But we also hope that the brush is applied more widely, not just targeted at a particular court or a particular region, as was discussed by the member for the Green Party.

Our key focus in looking at this bill is to assess exactly how it will support the specific needs of Māori. These are all-important steps, and we hope that along the way the Minister will see fit to reinstate funding for the Māori Legal Service. We have a particular interest in the Māori Legal Service and believe that it would be an improvement to have Māori legal services under the scrutiny of Parliament. We want to see that legal aid will address the needs of peoples with insufficient means in Aotearoa.

I want to raise a particular matter around the intention of the bill, which is to clarify that legal aid is available for Waitangi Tribunal proceedings, but not negotiations with the Crown to achieve the settlement of a claim. I recall that at the end of 2009 the late Sir Atawhai Taiaroa, Sir Taihākūrei Eddie Durie, Matānuku Māhuika, and other representatives met with the Minister of Justice, Simon Power, to express concerns about the number of lawyers appearing before the Waitangi Tribunal, and the consequential loss of tribal control over their claims. It was proposed that a small group should meet with the Legal Services Agency and the Waitangi Tribunal to search for alternative proposals that would retain the benefit of legal aid but place controls on the number of lawyers, and the consequential expenditure for that.

The Ngāi Tahu Māori Law Centre brought a particular insight to the issue. It is a community law centre based in Dunedin that specialises in Māori land law. It was its view that “Moving the funding of negotiations between claimants and the Crown from the Legal Aid system to be funded solely by the Office of Treaty Settlements leaves open the potential for the funding of negotiations to be unduly influenced by those who negotiate with claimants on behalf of the Crown.” I will be interested to hear from the Minister about how the views of Māori leaders and the submission from Ngāi Tahu have been taken into account in the bill as it emerges from the select committee process. We will be interested to know what the nature of the tests will be that are put in place for Māori to apply for such funding.

I am aware that the challenge was issued by Dame Margaret Bazley that there be incentives in place to support the specific needs of Māori. Some of the comments from Annette Sykes give me reason to believe that the changes around the competency of lawyers will be positive. But there are some real concerns also around the removal of the public advisory committee, which is something that both the Ngāi Tahu Māori Law Centre and the Coalition of Community Law Centres of Aotearoa both spoke against. We want to see community input and consultation retained in the administration of legal aid, and we want to know how the Legal Services Commissioner and the new quality assurance framework will take this into account.

Let us be clear: our preference would have been to retain the Public Advisory Committee to ensure the involvement of the community. We do support disestablishing the Legal Services Agency and shifting responsibility to the Secretary for Justice, and we also support the approach of all legal aid lawyers having to demonstrate competency. But we remain concerned about the removal of a specific community input, and our vote at the final reading will be determined by discussions that we have over the successive stages to assess whether Dame Margaret’s warning has been addressed. As I said, the warning was that if the legal aid system fails Māori, the system will fail altogether. I will leave that for the consideration of the House. The Māori Party will be supporting this bill at its second reading.

The Legal Services Bill reforms the legal aid system. I say from the outset that I certainly believe that because the State is bringing charges in criminal cases, there absolutely should be legal aid for those people who cannot afford representation. A slightly different situation pertains to family law cases, where the State may not be bringing charges. There may be some slightly different considerations in those cases, but, basically, and certainly in respect of the criminal courts, I feel very strongly that legal aid is a fundamental part of our system, because without it people who do not have the means to pay for representation do not get fair trials.

It is worth saying that there are caveats around that statement. It should not be legal aid at any cost and without any reference to the kind of quality and perhaps the assurances that should be in place with regard to the counsel providing the legal aid. I say that legal aid should not be at any cost, because some lawyers will say that, actually, legal aid or court cases should be at any cost and that cost is an irrelevant factor. I do not think that as politicians in this Parliament we should say that.

The fact of the matter is that we absolutely need justice in this country and we need fair trials. Justice, and the justice system, lines up against hip ops—and I do not mean the kinds of hip hops Carmel Sepuloni would necessarily talk about; I mean hip operations—education, and our schools. Trials and trial rights are lined up with those things in the system, because there is not a bottomless pit of money. Carmel Sepuloni may think there is, but we do not think so. We have to be careful with our money.

We in the Justice and Electoral Committee heard about lawyers and counsel at category 1 and 2 level—that is low-level criminal law and criminal cases—earning several hundreds of thousands of dollars by churning through cases. Those lawyers were not doing the hard stuff. Most reasonable New Zealanders would say—and Dame Margaret Bazley essentially said so in her report—that that is not on. We accept that anyone who works hard on a per hour basis can get to a position where they earn good money, but when the rate is $400,000, $500,000, or even $600,000 to do low-level criminal cases, something seems strange. Indeed, some of the calculations we talked about in our select committee made it quite clear that the lawyers were putting through what seemed like strangely large numbers of people.

We are changing things in that regard. We are not allowing costs to spiral out of control, because, as I say, we also have to make sure we have good hospitals, strong schools, and other social goods in our society.

When looking at this issue, the other thing I will say is that it is very, very important that if the State is paying for counsel—and as I have said right from the start, it must pay when people cannot afford good counsel in court—then the counsel should actually be good. The quality of legal advice and the quality of counsel someone is getting matter, because counsel are getting very good money. Off the top of my head, I think legal aid rates are around $160 per hour.

💬 Chester Borrows: For who?

Those are the rates for senior counsel, are they not—about $160 or $165 an hour?

💬 Chester Borrows: Yes, $160 for junior counsel.

Well, I would have been senior counsel when I was doing it, but that is by the by. We want to get away from that car-boot lawyer situation. Some ethics issues are involved, so we are putting in some assurances that there will be more competency tests for counsel, which has to be a very good thing indeed.

Finally, I will say a word or two about preferred counsel. We had some discussions about this issue—and I had some concerns at the start—but I think in the end we in the select committee came up with a very good solution whereby there is not preferred counsel for the low-level cases, yet there will be for the higher-level cases. I could say a lot more about that issue, but I think we have struck a good balance—one that meets all the requirements I have already talked about.

Ultimately, we will have a system that hopefully will be less about, and less for, the lawyers, and more about the accused who are up on charges and about the victims in the community. The system is not about people earning money from the system but about those who do not want to be in the system but are. We are reforming legal aid, which is a crucial part of the justice system, in a number of good ways in the bill.

I stand, along with my colleagues, to speak in support of the Legal Services Bill. As I heard Jacinda Ardern say before me, I too am very sad to not be a member of the Justice and Electoral Committee, which is chaired by the amazing Chester Borrows over there, who is smiling proudly. It has been a hard-working committee and although we did not agree on everything—certainly in the case of the Legal Services Bill—we worked very constructively and the work of the committee has seen an improved bill come to the House today. It goes without saying that we should also acknowledge the fantastic select committee staff, who really gave, as always, very, very good support to us during the process, and we should also acknowledge the submitters, because a number of really relevant points were made during the select committee process. I will talk a little bit later about some of the changes made. But, all in all, it was a good process and I feel, along with my colleagues and, indeed, National members, that this bill is improved, that it is necessary, and that it is a very good thing when we talk about access to justice.

The purpose of the bill is to promote that access through a system that provides legal services to people of insufficient means and delivers those services in the most effective and efficient manner. I certainly hope that no one in this House would dispute that, irrespective of people’s means or circumstances, it is their fundamental right to have a fair hearing and to feel confident that justice is seen to be served.

💬 Hon Steve Chadwick: Hear, hear!

Thank you very much, I say to the junior whip. This bill overhauls the legal services system and is the result of a review that was carried out and found some failings. A number of Government members have spoken quite staunchly about some of the rorts that were going on in the system, and, indeed, that is not something that anyone in the House wants to see in any system.

But I will not talk about the rorts. Government members, who like to focus on the negative, have done that quite well. I would like to focus on all the good work that lawyers working within the legal aid system do. Although for some the reason for the choice may have been the ability to earn a tremendous amount of money, many others could be working in other areas of law and making, frankly, a lot more money, but choose to do this from a very principled position. So I want to stand in this House to acknowledge the contribution and commitment of those lawyers.

We do believe that the reforms are positive, especially the emphasis on the public defender system and community law centres. We are very pleased that there will be a focus on delivering good quality. I will give a little background on the public defence system. It was launched by our leader, Phil Goff, who was the Minister of Justice at the time, in the Manukau courts in 2004. It was part of the Labour manifesto in 1999, so it was something that Labour members saw as very dear, and we are very proud that that service was launched in 2004. Since then there have been two independent valuations of that service, and both found that it offered tremendous savings in lawyers’ costs when compared with the equivalent service from private providers—in fact, the saving was almost a million dollars over the period of the pilot. Those savings were achieved with no change of outcome for the client as measured by the conviction rate; they are, rather, delivering consistency. Most people in this House would acknowledge that employing lawyers as public defenders delivers consistency, accountability, and a high level of skill. So, as I said before, we are very pleased.

I will also take this time to acknowledge all the work that community law centres do. That is why, when people bang on about the greed associated with legal aid, I find it a little offensive, when one looks at the complete opposite.

💬 Hon Steve Chadwick: Hard work.

It is hard work. Community law centres are funded by the system, and the lawyers working in them are working for a very, very low salary, but their commitment is second to none. I know that my colleague Carmel Sepuloni, who, along with me, has had quite a bit to do with our community law centre in Waitakere, and I are really impressed—through referring clients, of course, not at first hand—with the standard, and many colleagues have said the same about community law centres in their areas. Let us just acknowledge the work that community law centres do.

One point, when we look at some of the changes canvassed, was that community law centres were concerned that there were no statutory consultation requirements within the bill. As a committee we spent quite some time discussing this, but were advised that there was no provision for the equivalent of the public advisory committee, so we did not propose an inclusion of such a committee. Although we know that consultation is very important, we noted that it has always been a very good administrative practice and we did not see that changing. But it was something that we drew attention to in our report.

There was also considerable debate around the preferred lawyer issue. A few submissions—not a great number—argued that for low levels of crime, in order to have access to justice the accused should always have the right to pick their preferred lawyer. We gave that careful consideration but did not recommend changes. For people accused of more serious crimes, of course that should be the case, but for people accused of crimes at a lower level, the committee unanimously felt confident that a good level of service would be delivered. But it certainly was considered.

As I said before, these are improvements to the provision of legal services in this country and it is very good to have a meeting of minds on those issues. It is certainly very good to have a report that comes back to the House on which all members agree. We can compare it—which is what I think is so strange—with that ridiculous “three strikes” legislation, which does nothing for justice in this country but is actually a justice cost. It is really quite ridiculous that Parliament’s time has been wasted and that taxpayers’ money has been wasted on ridiculous legislation like that, which does nothing to address crime in New Zealand. Rather, it is a deal with the ACT Party to make its members feel in some way relevant to this Parliament. I think it is a pretty sad day when legislation is passed for that reason.

Having said that, this bill is good. It will improve legal services and that is a good thing. We certainly see the public sector being decimated by cuts, but at least this is something positive that is happening for the delivery of justice. Thank you very much.

It is my privilege to speak in the second reading of the Legal Services Bill. The National Government intends to make sure that all New Zealanders have access to a high-quality legal system. The Government also wants to ensure that taxpayers’ money is well spent. The review undertaken by Dame Margaret Bazley in 2009 identified many challenges faced by our legal aid system, and also inadequate processes to ensure quality. Dame Margaret’s report identified failings that posed a serious risk to the future of our legal aid system, including the variable quality of legal aid services, inefficiencies created by prospective legislation, and serious service delivery issues.

The clear message was that it was time for fundamental changes. The trouble these days is that offenders know their rights better than their mistakes. The Justice and Electoral Committee recommended many changes to be considered, after considering submissions. One of the changes recommended by the committee that I think is very important is that the secretary is required to cancel the approval of a provider who has been convicted of an offence punishable by imprisonment. This would not only align the provision with provisions in the Lawyers and Conveyancers Act 2006, but would also ensure that providers are held to appropriate professional standards and would protect the reputation of the profession.

Another important change was the recommendation to amend clause 77 by inserting new subclause 3A, which would require the Secretary for Justice to provide a reason for declining or giving approval for a provider to provide legal aid or specified legal service. That will make the secretary accountable for his or her decisions. The legislation also creates a system in which taxpayers can have confidence, and will also provide high-quality legal service by capable professionals.

The legal aid service is vital to our most vulnerable citizens. The changes made will make the users as well as the providers proud. To date, the legal aid system is facing real challenges, both in terms of increasing expenditure, and the quality of legal services funded through legal aid. Last year there were 85,156 legal aid grants, costing taxpayers $131 million. The legal services bill shows that the Hon Simon Power, the Minister of Justice, has acted speedily to address the issues identified in Dame Margaret’s report.

I also acknowledge the hard work of the Justice and Electoral Committee under the chairmanship of Chester Borrows, which made those recommendations to be considered, as well as the staff. We are confident that this package of changes will help build more public confidence that the legal aid system will provide quality services for those who need it, while giving taxpayers value for money. I support this bill at its second reading.

It is always nice to stand and speak on a bill that we agree on in the House. It is my preference to speak on bills that we agree on. I thank Mr Bakshi for his contribution and also my colleagues who have contributed to this bill. I am new to the Justice and Electoral Committee, so I have taken advice from my colleagues who have been members of it. I will speak on some of the issues they have raised. I listened intently to Simon Bridges’ contribution earlier, as I always listen intently to whatever Simon Bridges has to say. I noticed that he mentioned the hip-hop tour that happened under the previous Labour Government. I really do not know what that has to do with anything. I point out the fact that, yes, the hip-hop tour occurred under a Labour Government and, yes, we support every form of performing arts and every form of the arts.

I also point out that the Prime Minister took a hip-hop group on a tour of the Pacific. So I thought that I would coin a new term—because there is a certain word starting with “h” that we cannot use—called “hiphopcrisy”. Perhaps that was what Simon Bridges was demonstrating earlier with his comments. I still do not understand how he was relating that to the bill, but that is OK—I will continue on.

This bill overhauls the legal services system. It is the legislative result of Dame Margaret Bazley’s review of legal aid, which was completed last year. The report found serious failings in the delivery of publicly funded legal services. This bill will replace the Legal Services Act 2000. As I said, Labour supports this bill. Labour believes the reforms are positive, especially the emphasis on the public defender system and the community law centres. We are very pleased that there will be a focus on quality assurance. However, we are concerned that the “three strikes” policy will place further pressure on publicly funded legal services and will negate some of the good work that has been done.

Dame Margaret Bazley’s report uncovered some serious problems with how New Zealand’s legal aid system operates. We agree on all sides of the House that that is the case. As a result, this bill is necessary to restore taxpayer confidence in legal aid, which is an indispensible part of our justice system. We are very pleased that the Public Defence Service will be expanded—a system launched by a former Minister of Justice, Phil Goff, in 2004. The Public Defence Service is a good way to meet the rising costs of fees charged by barristers and solicitors in private practice. It creates a system of salaried public defenders and it will standardise a high quality of defence. It is a good alternative to legal aid.

We are pleased that the Government is placing greater emphasis on community law centres, as my colleague Lynne Pillay spoke about earlier, and that the Secretary for Justice will have the flexibility to utilise different means of delivering legal services. Unfortunately, though, we fear that those vital reforms will be undermined by the Government’s ridiculous “three strikes” policy. As I mentioned earlier, the reforms in this bill aim to curb the out-of-control costs of legal aid—criminal legal aid, in particular—yet the “three strikes” policy will incentivise not-guilty pleas. That will prolong the length of trials and place extra cost pressure on the justice system.

💬 Hon Dr Wayne Mapp: Stop reading your research notes.

That is what we are concerned about, I say to Mr Mapp. I do not know what he is mumbling about, but I am sure that it is not important, at all.

Lianne Dalziel has previously expressed concern that many allegations in Dame Margaret’s report were unsubstantiated, and she called on Simon Power to meet with members of the Manukau Bar who claim their reputations have been unfairly hurt by the report. We have some concerns about legal aid and employment disputes. The current system disadvantages union members, because they pay $300 to $500 per year for their membership, which includes an insurance fee to cover the cost of representation for personal grievance claims. However, non-union members have to contribute only $50, placing them at an advantage. Some of the changes that I think are important to mention are that the administration of legal services is overhauled, as suggested by Dame Margaret’s report; the bill transfers the administration of publicly funded legal services from the Legal Services Agency to the Ministry of Justice; the position of Legal Services Commissioner is created; the Legal Aid Review Panel will be disbanded, and the legal aid review function will now be carried out by—

Sitting suspended from 6 p.m. to 7.30 p.m.

One of the saddest things when debating any legal aid legislation is an automatic assumption that when we are dealing with legal aid we are talking about those who defend the despicable, the guilty, and the least worthy of our society. The problem is that we tend to try to fix the symptoms of the situation, which has led us down this path. What bothers me about the Bazley report is that it does not address the underlying cause of problems within the legal aid system, which is the inequality of arms.

Earlier we heard a speaker from the Māori Party talk about how this bill may affect Māori, who are vastly overrepresented within the criminal justice system. Of course, that speaker is correct. Māori who appear before the court are largely unable to afford their own representation.

The criminal justice system—quite wrongly, in my view—appears to apply legal representation completely back to front. The more serious the category of crime before the court, the more money the Crown is prepared to throw at it. On one side, that approach appears to be just, because the penalties are more severe, so the consequences of injustice are greater. However, the low-level offending that appears within our summary jurisdiction is the gateway offending that leads on to further offending. The more a young person, for instance, appears in summary matters before the court for low-level offending, the greater the risk is that they will come back. Whom do we see applied to defend low-level offenders appearing before the criminal justice system? Invariably they are staff solicitors from big firms with little practice, little supervision, and the least ability to apply themselves in the defence of those people appearing before the court. That is wrong.

We never seem to apply our minds, either, to comparative legislation, or to legislation that deals with Crown solicitors. For instance, a Crown solicitor appearing before the District Court on a summary matter that is going on to a depositions hearing is allowed to have 15 hours’ work to prepare for that depositions hearing. A legal aid lawyer appearing on the same matter would get 3 hours. One has to ask why that is. A Crown solicitor can apply 8,500 sworn police staff to do the inquiry legwork in the investigation of a case, or to cover up the holes that he or she has found during the course of the examination of a case that he or she is about to put before a court. If defence counsel on legal aid want to make similar inquiries because of the holes that they have found, they are not allowed to go and do them themselves, because it creates a conflict when they want to lead that evidence in court. So they have to apply to the Legal Services Agency, as it is now—under this legislation, through the legal aid system, through the Ministry of Justice—for a private investigator to go out, ask those questions, and take those statements. That huge inequality of arms has never been addressed.

Examining the Bazley report and this legislation leads us to the reason legal aid lawyers have, in the words of Margaret Bazley, rorted the system, or milked the system. They are trying to apply themselves to a case using the funding that they are able to get for it. They have to in some way balance the books or their budgeted time allocation, which they have to make to keep their job, and they cannot do it by charging legal aid. So we end up in a situation, as Mr Bridges indicated earlier on, where a Crown solicitor is appearing at an immediate rate of pay of maybe $150 an hour, while in the same case a legal aid lawyer is getting somewhere between $95 and $110—at least, they were a few years ago when I was in exactly that situation. I think that situation should be a real concern for all of us.

At the moment all this bill addresses is the expediency with which a matter can travel through the court system, and the cost to the taxpayer. They are due considerations that must be given, but at the same time I am mindful of the inequities that they can lead to. I think we need to at some stage in the future address those inequities.

The issue about preferred providers has been raised. That is, the ability of someone appearing in a court case to choose their legal aid - appointed lawyer. It was interesting to note that the Law Society and the Criminal Bar Association did not come out with a position either way on the issue. That is because their own Bar is divided. There are people in receipt of legal aid cases who are making a lot of money and getting a lot of referrals, and it appears on the face of it that there is no justification for that. Currently a matter is traversing through the court system where someone is seeking a judicial review, but we will not comment on that particular case. Yet it is not unheard of for some people to get 500 cases assigned to them by a preferred provider in the court in South Auckland. It is very difficult to understand, then, how someone in the Public Defence Service who is also able under the same situation to be nominated as a preferred provider gets only about 50—that is quite a popular lawyer. So there is a real inequity.

The criminal Bar in South Auckland was, I think, quite justifiably aghast at the way the Bazley report talked as though the majority of lawyers appearing as defence counsel and in receipt of legal aid assignments were rorting the system or milking the system. The Bar was very disappointed that there was no appreciation, at all, of the situation that its members find themselves in, in respect of their inequality of arms, as I have covered.

I finish by saying that this legislation, which principally folds the Legal Services Agency into the Ministry of Justice in order to gain efficiencies, is good. The thrust of moving cases more quickly through the court system is also good. Maintaining a rotation service for category 1 and 2 cases before the court will work well for both sides. It will encourage more experienced and more senior counsel to be assigned lower-level cases and thus appear before the courts with their very new and still wet behind the ears colleagues. That will give the new colleagues the ability to learn from the more experienced practitioners appearing before the court, and it will give the more experienced members of the Bar an ability to gauge just where the inadequacies are within the current system. I hope that over time we will see an enhanced Legal Services Agency, enhanced legal aid providers, and a more equitable system that serves all people appearing before the court justly and humanely, and in a way that they would expect to be treated in a modern and democratic society. Thank you.

Bill read a second time.

I raise a point of order, Mr Speaker. Can I change my vote on the previous bill, please?

The ASSISTANT SPEAKER (Hon Rick Barker): There was no vote. We had a vote, but no division was called for.

Can I call for a division?

The ASSISTANT SPEAKER (Hon Rick Barker): You are seeking leave for there to be a party vote?

Yes.

The ASSISTANT SPEAKER (Hon Rick Barker): Leave is sought for there to be a party vote on the Legal Services Bill. Is there any objection? There is objection.