Legal Services Bill

I will begin, following the fashion of Simon Bridges and Charles Chauvel, by acknowledging Minister Simon Power, since his announcement that he will not seek re-election. I think everyone on both sides of the Committee would agree that he is a Minister who is well respected. Even in my former trade he was a politician who was well respected, too. I wish him all the best.

In terms of his last contribution, I will touch on the affordability of providing what we are trying to achieve with the bill. We are looking at around a $405 million shortfall to give this bill teeth. Labour, while giving broad support to this bill, will be watching that very closely. Without that resource to back up what is in this bill, we will not be able to achieve it.

I think the most important part of Part 2 is clause 9(1), which basically streamlines the granting of legal aid when grants are not, or are unlikely to be, under the amount set by regulations. That will basically allow people who do not have the means to seek legal aid to be granted legal aid, which, of course, achieves the purpose of the bill.

I am the member for Mana, which is home to the Porirua District Court. It is a court where, I am proud to say, all parties try to work towards a strong, collaborative relationship and work for the community. Therefore, this bill will be acutely felt by those who work there every day, like the Whitireia Community Law Centre, and family lawyers like Peter Foster, who is based out in Raumati.

💬 Hon Tau Henare: Good on you that you found out where it was!

Ha, ha! In terms of the purpose of this bill, which is to provide legal services to people of insufficient funds, clause 9(1) in Part 2 of this bill is absolutely fundamental. For those people in my electorate who do not necessarily have sufficient means to seek legal help, whom I am very worried about, this clause will be very important, because it is one less hoop to jump through. But, as I said before when I was addressing the issue of affordability, if we do not have the resource to give to them then this bill will have no teeth. Creating fewer hoops for those people, whom I am concerned about, is very important because they are facing increasing costs.

Grant Robertson mentioned that for the people we are talking about, unfortunately, the fact that they have insufficient means is half the reason they are turning up to court. They are facing increased power prices, increased food bills, and increased petrol prices, and the cost of living is going up. So those people are finding themselves before the courts. Whether it is because of ratbag lenders, their own banks that are calling in debts, or collection agencies, some of those people are turning up to court because they have insufficient funds and insufficient means. When they get to court they will need the assistance of this legislation to make sure that they can be represented in an adequate way before a court.

As I said, clause 9(1) will take the pressure off people with insufficient means. Therefore, it achieves the bill’s purpose, which is to promote access to justice by establishing a system that provides legal services to people of insufficient means. For me, as the member for Mana, most of the people who are turning up to the Porirua District Court have insufficient means, unfortunately, so this bill is very important to them. That is why I said during the election campaign, which I was victorious in, that I would fight for them. That is why I am addressing this part of the bill to make sure that those people who are struggling to make ends meet, whose struggle is not being made any easier by this National Government, have adequate access to justice.

As David Parker pointed out before, as we address the issue of affordability one way to make sure we can make up that shortfall of about $405 million, in order to achieve the goal of this bill, is to look at one of the fish-hooks that comes about in this legislation due to the “three strikes” policy. Those who are accused of a serious crime will have no other option than to plead not guilty. Then we face the situation where we have long and protracted cases sucking on very valuable resources, which we need to make sure are going to the people who need them.

Clause 9(1) in Part 2 is the fundamental part of this bill in terms of achieving its goal. I will support any move to make sure that we can get enough resource and funding to achieve the purpose of the bill, which is to provide legal services to people of insufficient means. Unfortunately, they are coming in and out of the Porirua District Court every day.

I will follow on from my colleague Kris Faafoi. It is quite clear that Part 2 goes into significant detail on the procedure for the granting of legal aid, and on the cases to which it can be granted. Most of what is in Part 2 is of a relatively technical and non-controversial nature, but I will refer to several points. In some sense I think that a number of people perhaps do not understand that the legal aid system concerns both the potential withdrawal of legal aid and the repayment of legal aid. As my colleague David Parker said before, legal aid is generally, although not always, effectively granted as a loan. The repayment of that loan and the procedures about how that might happen are outlined in Part 2 of this bill.

In particular, there is the ability for the commissioner to withdraw legal aid from an aided person, and I think it is important that people are aware that that capacity exists. I am looking at Part 2, clause 29(a), which states that the commissioner may withdraw legal aid if “(i) the Commissioner is satisfied that the aided person has sufficient means to enable the person to obtain legal assistance and representation;”. That goes to the concerns that my colleague David Parker raised earlier about whether everybody was getting legal aid, and whether it was appropriate. As I said when I made my contribution, I slightly differ from my colleague because I think the default position we should be in is one where everybody has equitable access to justice. As Kris Faafoi just said, there are people who are struggling to make ends meet and who are having difficulty with the rising costs of living, increases in GST, and all those sorts of things. They need to know that there is a basis for them to have access to justice.

But there has to be a limit to that. I think we all respect that with the sums of money that have been discussed already—like the $400 million hole in the funding of legal aid—we obviously recognise that there are some limits to it. Clause 29 actually goes into that issue and specifically notes that the commissioner can withdraw legal aid if it is believed that the person receiving it has sufficient means to pay for assistance and representation. The commissioner can also withdraw legal aid if it is considered that “(ii) … the interests of justice no longer require that legal aid be given to the person;”. That is a weighty task, and it is important that it is undertaken sympathetically. One person’s belief about whether justice is still required can be quite different from another’s. So those are important elements within the bill.

Sometimes people believe that legal aid is a bottomless pit to which people can simply go, on and on, as Kris Faafoi said, taking and sucking money from the taxpayer pool. In reality, in Part 2 of this bill we have a mechanism by which legal aid can be managed and controlled. I believe in fact that that provides integrity to the system. It balances my earlier contribution when I said I believed that people of insufficient means need to know they have access to justice. The balance in this clause is that if in any way those people are perhaps not legitimate in that desire or requirement, then there is a mechanism to deal with that. Clause 30 does the same thing in terms of civil matters.

I turn now to the question of community law centres. We on this side of the Chamber are particularly pleased to note that the bill starts to give some certainty about the survival and funding of community law centres. I acknowledge here Minister Power’s contribution earlier about setting the bill in the context of a wider package. There is the notion that community law centres, an expanded Public Defence Service, and the way in which we are making changes to legal aid in Part 2 will all play a part in that wider package. I think it is important that we understand that that is the breadth of the package. We on this side of the Chamber are great supporters of the Public Defence Service, which was brought in under the previous Labour Government, and we are pleased to hear that it will be expanded.

💬 Jacinda Ardern: Why not in Palmerston North?

My colleague Jacinda Ardern asks why it will not be brought in in Palmerston North. There are a number of places that it could be expanded to.

💬 Hon Simon Power: All in good time.

So that is where the Minister is going! It is important that we find this whole package coming together.

On the subject of community law centres, I think every MP, particularly an electorate MP, knows of the value of community law centres. Those of us who get a lot of cases involving issues like immigration in particular, but also more bread and butter issues about people’s tenancy rights and family and custody disputes, know the value of community law centres. We know that as MPs we can refer people to a community law centre and they can get the response they need, which is so crucial.

I will start my contribution by acknowledging the Hon Simon Power, who has worked very hard as the Minister of Justice and kept members of the Justice and Electoral Committee busy.

The National Government is committed to providing legal assistance to people who have insufficient means to pay for it. The bill principally reforms the legal aid system. Dame Margaret Bazley’s review of the legal aid system in 2009 identified inadequate processes and serious delivery issues that threaten the future viability of the system. The clear message was that it was time for fundamental changes. These changes will provide an effective legal aid system that supports the wider justice sector. The legal aid system helps to uphold the principles of, and access to, justice and equality before the law and natural justice that help to build and maintain public confidence in the legal system. The bill includes a number of measures to improve the competence of the legal aid system. The Legal Aid Review Panel will also come under review. It allows many New Zealanders to access justice, enables them to defend themselves, and upholds their basic rights. It is the cornerstone of our justice system.

Part 2 deals with who is entitled to legal aid and who is not entitled to it. For example, we do not want to encourage those people who are unlawfully in this country and who abuse the system. The commissioner may not grant legal aid to anyone who is involved in any immigration case under the Immigration Act 2009, if the person is unlawfully in New Zealand under the terms of the Act.

To date, the legal aid system is facing real challenges, in terms of both increasing expenditure and the quality of legal services funded through legal aid. The bill shows that Simon Power, Minister of Justice, has acted speedily to address the issues identified by Dame Margaret’s report. We are confident that this package of changes will help build more confidence in the public that the legal aid system will provide a quality service for those who need it, while giving taxpayers value for money.

We are debating Part 2 of the Legal Services Bill. I want to talk about clauses 6, 7, and 8, and I will go on to talk about schedule 1 if I may, because I think some of these things need to be clarified for the benefit of a lot of people. Before I start on that, I will say that Simon Bridges commented that about 40 percent of the bills going through the Committee are from the Justice and Electoral Committee. I find it quite surprising that the Minister of Justice has decided to resign. I wonder whether the reason is that he feels he is the only one in Cabinet who is doing any work. He is sick of it, and he realises that there are better options out there. The Minister of Justice is sick of carrying the National Government. He seems to be the only one with a plan; no one else on the Government side of the Chamber has a plan.

I will come back to the bill. Part 2 deals with when legal aid may be granted. I am not a lawyer, but I am aware that there are two types of cases: criminal matters and civil matters. Clause 6 deals with criminal matters. A lot of the arguments we read in the press or hear in the pub or Cosmopolitan Club are from New Zealanders who are saying “Goodness me! That guy has just been done and he is appealing under legal aid. That is just not right.” But if we look at Subpart 1 and we understand the rule of justice, we see it is a fundamental tenet of our legal system that everyone has the right to a fair trial. The point I want to make is that clause 6 sets out the proceedings for which legal aid may be granted in criminal matters. It actually lists them: “criminal proceedings in a District Court, a Youth Court, the High Court, the Court of Appeal, or the Supreme Court:”. What you have here is that—not you, Mr Chair; I know you will never need legal aid—any New Zealander who faces a criminal matter in any court has the right to have legal representation. That point underpins our whole democracy, no matter how unfair that may be.

Clause 7 talks about the proceedings for which legal aid may be granted in civil matters. People may be surprised to learn that subclause (1)(e) provides that legal aid may be granted if the commissioner considers that the case is one that requires legal representation. The requirement for that representation may be in the Māori Land Court, the Māori Appellate Court, the Employment Court, the Employment Relations Authority, or any other administrative tribunal or judicial authority.

💬 Hon David Parker: What about the Privileges Committee?

Possibly it could be in the Privileges Committee. Mr Parker brings up a good point; I think that legal aid has been used in this area.

I turn to clause 8 and the points Mr Robertson was making about when aid can be granted. It can be granted in criminal matters when the applicant is a natural person, and that assumes that a body corporate or a company cannot apply for legal aid. It applies only to a natural person. Subclause (2) states: “When considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner—(a) must have regard to” a number of matters. Subclause (3) states: “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance, the Commissioner must … have regard to the applicant’s income and disposable capital as set out in Schedule 1.” The definition of “capital” in schedule 1 states: “capital, in relation to an applicant for legal aid, means that person’s total assets after deducting—(a) the amount of any debts secured against those assets; and (b) the amount of the actual debts of the person, other than those that are secured.” Clause 2 of schedule 1 also has a definition of “income”.

This is quite an important argument. Members may recall a very recent case where a rather wealthy gentleman who had been a director of a finance company applied for legal aid. There was a huge hue and cry, because people thought that a very wealthy man who had substantial assets was applying for legal aid. The perception is that those who apply for legal aid actually have nothing and cannot afford a lawyer. That man’s legal counsel must have looked at the definitions in the legislation, applied the test, and assumed that this incredibly wealthy man, who still lived in a big house on Remuera Road in Remuera and drove a Porsche, did not have sufficient capital and did not have a home.

I want to also address the concern we have for the rising cost of legal services, which the Minister addressed in respect of Part 1. As we heard from the previous speaker, Stuart Nash, Part 2 sets out the mechanisms to gauge when legal aid should or should not be granted.

In the Minister’s contribution on Part 1 he said that there is an expectation that costs in the legal aid system are going to increase. There are two drivers of that. If more people are getting legal aid for mainly criminal matters, which is one of the big—

💬 Hon Simon Power: No.

No more people are getting it? It has flatlined, has it?

💬 Hon Simon Power: I wouldn’t say flatlined, but it’s not the biggest area.

It is still going up. It is not going up quite as fast as the rate of crime, but it is still going up a little bit. I am sure that part of it is just the increase in some sorts of crime, particularly serious violent crime, which is on the increase and will flow through to legal aid costs. That situation is obviously of concern. The underlying way to deal with it is not through legal aid legislation but through better interventions earlier in life so as to reduce the rate of offending.

Civil legal aid is another area of concern to the Opposition, because it is plain that the cost of living is rising for most New Zealanders—not just petrol prices. I admit that petrol prices are largely beyond the control of the Government—

💬 Grant Robertson: Except for the GST.

—except for the GST increase, that is right—but in respect of most other cost increases, National does have to accept some responsibility after 2 years in Government and two Budgets.

💬 Hon Trevor Mallard: Can I put a point to the member? If they had done their public transport the way that they should have—

The CHAIRPERSON (Hon Rick Barker): We are on Part 2 of the Legal Services Bill.

The point I will come back to is that if these costs are not being met by the legal aid system, it is yet another area where costs will be transferred to New Zealanders from the State. The cost of living pressures on New Zealanders will be getting worse as a consequence of more of the total amount that is required to be spent on legal services in New Zealand being met by New Zealanders and less by the Government.

I am not, as members will have heard from earlier contributions, saying that all legal services ought to be funded by the Crown. I am not saying that, at all, but the cost of living pressures that are being borne by people, from increased electricity prices through to legal services, are something that we on this side of the Committee are concerned about.

When it comes to clauses 10 and 11, which set out when legal aid may be granted in civil matters, I would be interested to learn from the Minister whether the income thresholds will be lifted to reflect the fact that the cost of living is rising ahead of wage growth through inflationary increases.

We want to make sure that New Zealanders are in a position to effectively resolve their disputes through civil methods. One of the reasons we have courts is to stop people using uncivil methods to settle their disputes. If people do not have access to court processes, they are more likely to resort to fisticuffs or employing stand-over tactics to resolve their disputes. The importance of civil proceedings in maintaining civil society is not to be underestimated. For civil proceedings to be a real avenue for people to resolve their disputes, people have to be able to access justice, as Grant Robertson said in an earlier speech.

We are interested in the fact that wages are not rising as fast as inflation—that is, people are facing an increase in the cost of living that is not reflected by their average earnings. People who are unlucky enough to be made unemployed through redundancy—following the earthquake for a small proportion of people in Christchurch, for whom we feel very sorry, but also elsewhere in the country before the earthquake and no doubt after the earthquake from other causes—need to be able to rely upon legal aid properly covering their costs, otherwise they will not be able to access justice. Without access to justice they will suffer injustice, which is something that this Parliament ought to be concerned about. In respect of Part 2, I invite the Minister to address—

I begin by joining others in acknowledging the particular contribution that has been made by the Minister in the chair, the Hon Simon Power, to this Parliament and to previous Parliaments. It is a worthwhile contribution, always.

I had not intended to take a call on this bill, but having had a good look at Part 2 it suggests a contribution I can make. I am a person who has some significant experience of the criminal law, although I have always chosen to defend myself rather than to avail myself of legal aid. I am pretty proud of my record of acquittals, I have to say, on criminal charges, which probably exceed that of most legal aid lawyers. I want to pick up on this theme that several speakers have mentioned this evening of a universal right to access to justice. That seems to me to be pretty fundamental. What has drawn my attention is clause 8(1)(c)(ii), which provides limitations on that right to access justice. I guess we need to be pretty confident, if we are going to impose some limitations, that those are reasonably justified limitations. The Minister has talked in this debate about his intention to put incentives in place in this overall reform programme in the justice arena. I am concerned that clause 8(2) lists a series of grounds that the commissioner is required to take into account when applying clause 8(1)(c)(ii). Bearing in mind the incentives that the Minister is putting in place in the bill, it effectively invites the commissioner to use those grounds to deny legal aid.

What I am concerned about is that some of those grounds seem to be not relevant to determining what the interests of justice might be. I will not address all of them, but if I could perhaps just draw attention to clause 8(2)(a)(i), regarding whether the applicant has any previous convictions. The commissioner is invited to take that into account in determining whether the interests of justice are served by granting legal aid in relation to some new offence. It seems to me that previous convictions cannot be relevant to whether the interests of justice are served by a person who is accused having access to legal aid—access to justice—in a given case. It seems to me that this has probably arisen because clause 8(1)(c)(ii) relates to the situation where an offence is punishable by less than 6 months’ imprisonment, and that is probably considered to be a relatively minor offence where the consequences are not so severe in the case of a conviction. However, the consequences of a conviction that carries less than 6 months’ imprisonment may in fact still be extremely severe for the person who is facing that charge. I invite the Minister to perhaps comment on how previous convictions might possibly be relevant to determining what the interests of justice are in the case of a person charged with some new offence. That is all I really had to say on this part.

I would like to talk about clause 8(3). This is in relation to when legal aid may be granted in criminal matters. It states: “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance,” we basically have to go to schedule 1. I have a couple of questions and one of them is to do with clause 4(4) of schedule 1. It states: “Where an application for legal aid for a civil matter is made by a minor aged 16 years or over, the Commissioner may treat the resources of the following persons as the resources of the applicant: (a) any person who, under any agreement or court order, is liable wholly or partially to maintain the applicant; or (b) any parent, foster parent, or step-parent with whom the applicant is living.”

I wonder whether—let me give a hypothetical example—if a university student commits an offence and goes before the courts, the parents’ income means that the student is not eligible for legal aid. I know that students do silly things sometimes. The last thing they want is their parents to know what they have done, but this may fall under this clause. We can look at the definitions in schedule 1 as to when one can and cannot have legal aid. I will go to clause 2, “Meaning of income”. It states: “(1) In relation to an applicant for legal aid, ‘income’—(a) means the person’s total gross income during the 12 months immediately before the application for legal aid,”. I am not too sure where the income level sits, but if we understand that 75 percent of New Zealanders earn under the average wage, I am assuming that probably about 75 percent of New Zealanders are eligible for legal aid because they would probably come underneath that total gross income test.

But if we go again to clause 2(1)(c) of schedule 1, it includes a benefit. If a person is on any sort of benefit, then that is included in the income test, except where the person is receiving an orphans benefit, an unsupported child’s benefit, a child disability allowance, an emergency benefit payment, or an accommodation supplement. Again, for example, I am wondering whether, if those dreadful people we have seen in Christchurch who were looting, etc. are on an emergency benefit, they will still be eligible for legal aid if they are earning above the income threshold that is set here. Those are just a couple of anomalies I would not mind having answered. Also, if one receives a special benefit or a disability allowance, that is not counted in one’s income for that year when determining whether one is eligible for legal aid.

Again under schedule 1, clause 3 talks about the meaning of disposable capital. It states: “(1) In relation to an applicant for legal aid, ‘disposable capital’ means that person’s total assets after deducting the amount of any debts secured against those assets and after deducting,—” the interest that a person has in a home, equity, and that sort of carry on. Again, I am assuming this is the test that the former company director of the failed finance company used when that person’s lawyer put forward an application for legal aid that was turned down. I suspect that if it had not been turned down there would have been such a hue and cry that there may have been revolts in the street, so that was not a bad outcome.

But another interesting thing is that in clause 4 of schedule 1, the resources of a spouse or partner—or parents of a minor, which I have talked about—are also counted in determining whether a person is eligible for legal aid. I quote: “(1) Any resources of a person’s spouse or partner must be treated as that person’s resources unless—(a) the person is living apart from his or her spouse or partner; or (b) the person and his or her spouse or partner have contrary interests in the matter …” . With regard to “spouse or partner”, I am assuming again that when we talk about a partner, we are talking about a legal definition of “partner” as in the matrimonial property Act or something, so I assume that the partners have to have been together for more than 2 years. It would be dreadful, for example, if someone had hitched up and moved in together, and then, 2 months later, after being together for 3 months, this person was up before the courts and could not get legal aid because it was determined that his or her partner earned above the income threshold. I am quite curious about the test of who a partner is. We all know what a spouse is, because that assumes marriage, but I am just a little bit unaware where the test for a partner would kick in.

I move, That the question be now put.

First of all, I will place on the record of the House—and I am sure there will also be an opportunity to do so later—my admiration for the work of the Minister of Justice across his portfolios and as a member of Parliament. I have said publicly that he is a good, honest, straightforward person to work with and someone who keeps his word when he gives it. He is sometimes slightly reluctant and will not agree to do things that we would like him to agree to do as far as both the House and his policies are concerned, but he is a person of absolute integrity and is someone who will be missed from the House. I think it is important that that is made clear.

As I have said in the past, I have seen people come and go across the House over a number of years. The below-average ones are numerous and this member is one who makes up for a lot of them. I think it is slightly sad that so soon after the Minister’s announcement he is caught in the chair, and the person who is responsible for the fact that he is caught in the chair at the moment is sitting not more than 2 metres away from him. I think it is important that there is an understanding of how the processes of the House should work.

It is good to have someone in the chair who understands that and who, I am sure, if he was responsible for some other legislation, would not have got into the pickle that is resulting in the intensive discussion of a bill that, I think it is fair to say, we used to agree with. But now that my colleague Charles Chauvel has had a good look at this part, in particular, he is beginning to have some pretty serious doubts about it. As far as the general principle of the bill goes, I think all of us know that there are some things to be done in the legal aid area, and the bill is an attempt. I think there are a number of interesting points.

I am not sure whether the Māori Party has been properly apprised of clause 5 of schedule 1. This clause effectively states that someone’s interests in Māori land have to be taken into account in working out whether that person can afford to pay for lawyers. Well, that might be the equality of everyone before the law. But we know that the very way Māori land becomes Māori land under the Te Ture Whenua Maori Act 1993 is that it cannot be disposed of as other land can be. I think there is a fair point in there that the rent from the land, the income from that land, should properly be considered as an individual’s income. But I think that, in considering disposable capital, we should not be suggesting that Māori can dispose of Māori land. I ask Tariana Turia whether she supports the fact that Māori should have to dispose of their interests in Māori land.

💬 Paul Quinn: It doesn’t say that.

That is exactly what the clause states. “The disposable capital of the applicant includes Māori land and any interests in Māori land unless—(a) the application is made in respect of proceedings in the Waitangi Tribunal; or”—

💬 Paul Quinn: Disposable capital does not mean that you have to dispose of it.

But that is the very point, because if one cannot dispose of it, it should not be included in the definition of disposable capital. Yet the bill does include it in its definition of disposable capital.

If Paul Quinn cannot read that provision, he should get someone to read it to him—he should get someone to read it to him. If he, the leading Māori in that party, the leading Māori on justice issues in that party, and the only Māori to get a justice bill through Parliament, cannot understand that this bill requires Māori to sell their land when they cannot sell their land, then that is particularly sad. I wonder what Tau Henare thinks about this issue. Has Paul Quinn discussed the issue with his colleague Tau Henare?

It is clear that Tariana Turia does not care about Māori land being sold down the river under this clause in a way that one would expect from the Attorney-General but not from the Minister of Justice. It is also worth going back to some of the other matters. The member Tariana Turia is looking and laughing. She thinks it is funny that Māori land should be taken.

💬 Hon Tariana Turia: I raise a point of order, Mr Chairperson. I think it is inappropriate for that member to lie in the Chamber. I was not smiling or laughing. The comments he made were inappropriate.

The CHAIRPERSON (Lindsay Tisch): I hear the member. The last 5 minutes have been quite robust, and what a member says is not a reflection on that member, I am sure. I would like the debate to continue in that vein.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): I am dealing with the first point. I think the point of order that the honourable member has brought up is not substantiated. Members can make comments. If the member feels that she is aggrieved by what he has said then that is a different matter, but I did not take that out of the comments that were said.

I raise a point of order, Mr Chairperson. The member said I was lying in the Chamber. That accusation requires a withdrawal and an apology. That has always required a withdrawal and an apology. I have taken offence.

The CHAIRPERSON (Lindsay Tisch): I am on my feet. I am dealing with the point the member brought up. I have said it is a clean slate; we are starting again. I heard what the member said. I did not agree with what that member said. We are starting from scratch.

I raise a point of order, Mr Chairperson. I move that the Speaker be recalled to get a ruling on that matter. The reason is that it is always required when a member is accused of lying in the Chamber that it be withdrawn and apologised for.

The CHAIRPERSON (Lindsay Tisch): Speaker’s ruling 42/5 states that a member cannot say that another member is lying, and I appreciate that. Speaker’s ruling 42/5 states: “A particular mode of expression that has been ruled out of order consistently has been the use of the word ‘lie’. Many other expressions can be used to say that a member is stating something that is incorrect—and that is material for debate, which goes on in the Chamber every sitting day.” This is the situation: the member complained that the honourable member said that he was lying. If that is the case then I ask the member Tariana Turia to apologise for that comment.

💬 Hon Tariana Turia: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): No; I have actually asked whether the member said that that member was lying, if so, I ask the member to withdraw that comment. That is what I am asking.

💬 Hon Tariana Turia: I withdraw the comment. I raise a point of order, Mr Chairperson. I am highly offended by the comments that that member also made that were completely untrue, and I want him to apologise to me.

The CHAIRPERSON (Lindsay Tisch): There is another Speaker’s ruling 44/4, which I shall refer to. It states: “It is not the Speaker’s duty to intervene if objection is not taken to the language used by one member towards another, unless the Speaker considers it is such language as requires the Chair’s immediate intervention.” This is the situation: the member has withdrawn her comment. She took exception to it—

But I said she was smiling and laughing. One cannot take exception to that.

The CHAIRPERSON (Lindsay Tisch): The member has taken exception. Let us start from scratch, shall we? Under Speaker’s ruling 44/5 I ask the member to withdraw the comment.

I raise a point of order, Mr Chairperson. We have had the back and forth on that issue. The member was smiling. The member was laughing during my speech. I drew attention to that fact—

💬 Hon Tariana Turia: No, I wasn’t.

It is a matter of fact. The member might not have been laughing or smiling at me, but she was laughing and smiling.

The CHAIRPERSON (Lindsay Tisch): It is not a matter of personal reflection whether someone was smiling or laughing, or whatever. This is getting out of hand. Let us leave it at that.

I will repeat the comments that I made. I find it appalling that the Māori Party is supporting legislation whereby the asset of Māori land, which is non-disposable, is taken into account when making a decision about the assets of Māori who are charged before the court, as if that land was disposable. As I said earlier, I think it is fair enough that the rent, the income, Māori get from Māori land should count as far as their income is concerned, but to pretend that that land can be disposed of in those circumstances is wrong. I think it is shocking that Tariana Turia is sitting there while this legislation is going through. It has been pointed out to her, but she is not on her feet defending the principle of the inalienability of Māori land. We thought that that was the case. Most New Zealanders think it is the case. We think that under the Te Ture Whenua Maori Act 1993 it should be the case. So why is it that during the debate on this legislation the member is sitting there and letting those assets be taken into account, as if they were alienable, even though they are not?

💬 Paul Quinn: It does not.

That is exactly what it does. As I said to that member before, he should get someone to read the bill to him. He could get Mr Finlayson to explain it to him. We know he is not the sharpest pencil in the box, but if he takes his time and works through it slowly, even Simon Bridges, I think, within an hour or two could get him to understand. Within an hour or two Simon Bridges could explain it to him.

I will go back to the question of trusts and money held in trusts. I seek an assurance from the Minister in the chair, the Attorney-General, that money held in trust funds is taken into account when considering schedule 1 of this bill, within the meaning of disposable capital. If someone has a sole interest in a trust or has a sole beneficial interest in a trust, I want an assurance that that trust is taken into account when the Crown is working out whether it is disposable capital.

There is a well-publicised case in the court currently, which I am sure the Attorney-General is well familiar with. I am not asking him to go into the details of that case, but the principles are pretty well established. There is no doubt in the case that the individuals have large trust funds. They have a large amount of money tied up within trusts, but they are still making applications for legal aid on the basis that they do not have that money. That is wrong; it is a rort. A lot of New Zealanders pay good taxes, and they should not pay for those multimillionaires who have their money cut away within trust systems. New Zealand taxpayers should not pay for those people to get legal aid when there is a pile of Kiwis who are not getting the legal aid they should be getting, and when the criteria are far too tough.

It might even be that some of us, if we knew that this area was being cleaned up and tidied, would support, and be happy enough to see, a flattening off in the legal aid budget. But, again, I say that some changes being made in this bill are useful.

I also ask the question about the 6 months’ imprisonment. There is some sort of assumption in the bill about going to prison for a crime that merits less than 6 months imprisonment—or, in fact, about not going to prison. There is a judgment made about the likelihood of imprisonment, which is quite a hard one to make. There are cases where at the beginning of the case it seemed unlikely that even if defendants are charged with an offence that earns under 6 months’ imprisonment—and this is very, very substantial; this part is the core of the bill and I think that a number of us want to make at least four contributions—and are likely to lose their liberty through not being properly represented, even though the charges are such—

I move, That the question be now put.

I am very happy to take a call on Part 2 of the Legal Services Bill. The points that I will raise relate primarily to coverage under the legal aid system, particularly with regard to clause 7 in Part 2, which relates to proceedings for which legal aid may be granted in the case of civil matters. One of the issues that I will raise with regard to this bill, and with regard to what I believe is a growing inequity in the system, is that ACC cases are not covered by the legal aid system, according to the clauses in this bill, up to the point at which they reach the District Court.

We are seeing within the accident compensation system a dramatic increase in the number of ACC cases being declined and, therefore, a dramatic increase in the number of cases going to a disputes review. When people have had their accident compensation claim rejected and their cases go to an ACC disputes review, the amount of legal assistance available is limited to something like $700 or $800. It is probably significantly less than what they would get if they were entitled to legal aid for that particular process. Through the ACC disputes process we are seeing that the Accident Compensation Corporation certainly has access to a lot of highly paid, high-quality legal assistance, but those who are seeking review, and seeking some redress if they believe they have been treated unfairly, do not have that same access to legal support.

My question is that if the accident compensation system is to become a much more litigious system, which seems to be happening under the tenure of this National Government, then why should somebody taking a review proceedings through the ACC system not be able to obtain legal counsel and legal assistance? This is a very real issue. For example, the number of surgery claims for accident compensation that were rejected doubled from 2008 to 2009. In other words, under the National Government, the number of people who have applied for elective surgery through ACC and who have been turned down has doubled. What has that resulted in? It has resulted in the number of reviews—in other words, the number of people who have been saying that because their case has been rejected by ACC, they want it reviewed by going to ACC’s Dispute Resolution Service—almost doubling during the tenure of the National Government, as well. The number of decisions being overturned through that process has increased by about 400. We are seeing that ACC’s more instant reaction, quite often, is to decline a case on the basis that someone can then take a review.

Basically, the corporation is pushing people down a much more legal route in order to get their accident compensation entitlements. In relation to this bill and the coverage of the legal aid system, if the Government is to take a much stricter approach towards ACC claimants, it raises the question of why those claimants should not be able to get quality information and quality advice on their entitlements. Everybody pays into the accident compensation scheme; everybody gives up something in order to be covered by accident compensation. What do they give up? They give up their ability to sue in the case of accidents. They cannot sue in the case of accidents. But we are seeing that the corporation is basically clamping down and is not giving people the things they are entitled to under the scheme. If people are not getting what they are entitled to, then I ask why they should not be able to get legal advice to make sure their entitlements are being upheld. They are paying for it, and they are giving up their right under the common law to sue, in order to be part of the ACC scheme. With the increasing number of complaints about the corporation and the increasing number of reviews, there is a legitimate question to be asked about whether legal aid should be extended to those people.

I will move on next to talk about proceedings before the Tenancy Tribunal, which are covered under this Legal Services Bill; I think that that is incredibly important. One of the issues we are seeing with State housing under the tenure of the National Government is that it is basically moving away from being a housing provider of last resort to one where the Government will use the legal processes available to it in order to evict tenants. In my electorate we have an example at the moment where the Housing New Zealand Corporation is using a 90-day eviction notice to remove some people from the neighbourhood of Pōmare because it cannot actually make a case before the Tenancy Tribunal to remove them. The Government is basically using the 90-day notice period, which cannot be appealed through the Tenancy Tribunal, to evict people. That is a small example of where we are seeing the Housing New Zealand Corporation using many more legal proceedings against its tenants. Therefore, I think it is really important that those tenants have full access to the Tenancy Tribunal’s services. I do not believe that the Housing New Zealand Corporation is upholding its part of the bargain with regard to providing quality tenancies for State house tenants. For example, it is not living up to its maintenance criteria as it should do, and tenants should therefore be able to take relevant action where they need to do so.

Those are the points I had with regard to coverage. I will also pick up the points raised earlier with regard to the financial criteria that are used to determine whether somebody is eligible for legal aid, and the asset tests that they are subjected to. The principle behind this should be that in order for a certain asset to be considered under the financial test, the person has to have reasonable access to that resource. The principle is that the State should not be providing legal assistance to somebody who has the financial means to provide it for themselves. If that is the principle, then I fail to see why Māori land, which is shared and cannot be disposed of, can possibly come within that financial test. It is not as though the person who will potentially be declined legal aid will turn round and say that he or she needs money for a lawyer and will, therefore, hock it off. That person simply could not do it. Therefore, to allow for the situation where someone could be denied legal aid because of some interest in Māori land that he or she cannot sell and cannot dispose of simply means that person will be declined legal aid when otherwise he or she would get it. That is an unjust outcome, and it is blatantly unfair.

I am looking forward to the contributions from the Māori Party—from Tariana Turia, the co-leader of the Māori Party, who has been conferring, I think, with the Associate Minister of Māori Affairs about this matter for the last 10 minutes or so. I am assuming that they are working out what they will do about it, and that in a few moments one of them will stand up and tell us what they are going to do about it, because it is blatantly unfair. I think that if Māori Party members claim to be the representatives of Māori interests in this Parliament—and I do not believe they are—then this is something they should have a view on. I look forward—

💬 John Hayes: So who is—Hone? Metiria Turei?

Hone Harawira might well come to the Chamber later on and have a go on it. I would quite like to hear what he has to say on that matter, and I think he may well take a call on that. I would like to hear what Simon Bridges has to say on that matter. I would like to hear what Paul Quinn has to say on that matter, so rather—

💬 Hon Trevor Mallard: No, don’t go that far.

I would even go that far. I would quite like to hear whether Paul Quinn has a view on whether Māori land should be taken into account when somebody is being denied access to legal aid.

💬 Hon Trevor Mallard: It’s part of the definition of disposable assets.

Yes, it is part of the definition of “disposable capital”. I think Paul Quinn should have a view on that.

💬 Paul Quinn: It has to be disposable to be disposable.

That is exactly the point. I note for the benefit of people who are listening at home or watching on TV that Paul Quinn says that it has to be disposable to be disposable. That is what he has been yelling at us, yet the bill does not actually cover that. The bill as it is being passed means that it will be considered. I think that Simon Bridges should have a chat to Paul Quinn to stop him making a bit of a fool of himself, and read the bill slowly to him. Perhaps then he might—

💬 Paul Quinn: You’re the fool.

The CHAIRPERSON (Lindsay Tisch): I am not the fool in this. The member cannot use the word “you”.

Thank you very much, Mr Chair. By and large, clause 2 tidies up access to legal aid. I think that is really important, particularly in the current context, when people are out there battling away and struggling to find money for the basics. I think it is important that when they find themselves involved in any kind of legal proceeding, they should have financial assistance to do so. If they cannot afford to pay the power bill and to put food on the table for their families—which increasing numbers of people are finding under the National Government—then they certainly will not find the money to fund a legal proceeding. Making sure that we have a legal aid system that provides for those people is very important. This bill tidies up the legal aid system and addresses many of those concerns.

I move, That the question be now put.

I will go back to clause 8, and there is a particular part of clause 8 that I want to refer to in order to help out Mr Quinn, which is clause 8(3): “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance, the Commissioner must, except as provided under section 9(1), have regard to the applicant’s income and disposable capital as set out in Schedule 1.” Mr Nash did an excellent job earlier on of working through some of the issues within schedule 1—for instance, the resources of a spouse or partner.

Clause 5 of schedule 1 is about resources relating to Māori land. The clause describes an applicant as a person applying for legal aid and how resources relating to Māori land will be brought into account: “The income of the applicant includes any rent derived from Māori land or interests in Māori land.” As Mr Mallard pointed out earlier on, it is perhaps fair enough to look at rent derived from Māori land as being part of income derived and as something legitimate to be tested against to determine whether one has sufficient means or meets the insufficient means test.

💬 Hon Trevor Mallard: But if it’s put in a trust, then it doesn’t count. If it’s Māori land then it does.

That is right. Then we go on to clause 5(3)—this is the point—which states: “The disposable capital of the applicant includes Māori land and any interests in Māori land unless the application is made in respect of proceedings in the Waitangi Tribunal;”. That is the point. Now Mr Quinn tells us that that disposable capital is not disposable. Why then is the capital being described in the schedule as disposable capital if it is not disposable capital? That problem has been raised by members on this side of the Committee. Mr Quinn has gone very quiet now, but the fact of the matter is that clause 5 of schedule 1 actually needs some explanation. Otherwise, we are left with the situation of capital that Mr Quinn has told us is not disposable being considered disposable. That is part of schedule 1. I just wanted to help Mr Quinn with that explanation so he understands the issue being raised by members on this side of the Committee.

But I will go back—and it is the nature of these kinds of discussions—to something Kevin Hague said. He raised with us earlier the question of what, under clause 8(2), will be considered by the commissioner when he or she is obliged to consider whether the interests of justice merit someone getting legal aid. Kevin Hague raised some very interesting points as he worked though clause 8(2) around some of the issues that are supposedly part of the question of whether justice requires a person to receive legal aid.

In my earlier contributions I mentioned that there was obviously a balance within legal aid. The most important principle is that people with insufficient means have access to justice, and I discussed that issue in my first contribution. But there is a balance as to how we define that access and how we make sure that it involves a manageable amount of resources for the taxpayer and that legal aid is given to those who genuinely need it—and I talked about the test around withdrawal. But I think the question Mr Hague raised is very significant. For instance, what is the relationship of “whether the applicant has any previous conviction;”—clause 8(2)(a)(i)—to whether the interests of justice are being served? That is a very legitimate question. In most cases—in jury trials, for instance—juries are not made aware of previous convictions, so why are we now using previous convictions as a determinant of whether a person receives legal aid?

Those are important questions, and it would have been good to hear from the Minister about how these provisions have come about. They may well have come over from previous legislation. I am not necessarily arguing that these provisions have been introduced brand new by this Government, but they do raise the important question of the balance of access to justice for those with insufficient means with the ability of the taxpayer to be able to provide the resources that are needed. Obviously, there do need to be tests, but the tests under clause 8(2) require a bit more analysis and a bit more explanation, because they start to provide limits.

In relation to the issue of balance, not only do we have in this bill the ability for legal aid to be withdrawn—which I mentioned in an earlier contribution—but we have the counterfactual to that, which is that there are now provisions, namely clause 51(7), that allow applicants to apply to the Legal Services Commissioner for review of a decision. An important part of the process is review of decisions and making sure that we have that balance.

I wonder whether I could help Mr Robertson, who has just resumed his seat. He made a contribution that was not complicated by any merit. Let us read clause 5 of schedule 1. The member carefully went through clause 5, and he noted paragraph (a) of subclause (3), but he omitted to refer to paragraph (b) of subclause (3), which states: “in the circumstances of the case, the Commissioner considers that it would be inequitable to include all or part of the land or interest.” The point is, I note for Mr Robertson’s benefit, that the provision is of long standing. It was in the Legal Services Act 1991. It was also in the 2000 reform, when he was running around after Helen on the ninth floor.

💬 Grant Robertson: I was in New York.

Oh, the member was in New York then; sorry. The fact of the matter is—

💬 Chris Tremain: He gets around.

He does get around, I must say; I am proud of that. But the provision was contained in the Legal Services Act 2000, so, as I said, the member made an unmeritorious point. The safeguards are there to ensure that no injustice is done to Māori.

I move, That the question be now put.

The CHAIRPERSON (Lindsay Tisch): The question is—

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. My point of order goes to the simple question of the ordering of calls. You have had a call from the Government, and always the normal thing is then to look to the Opposition.

The CHAIRPERSON (Lindsay Tisch): I did indicate before that I would take one more call. When I asked the member behind you, Grant Robertson, to take a call I said I would take one more call, and then the Minister said he would like to respond to some of the questions. A member has now moved the closure motion, and I intend to put—

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. The precedents on this are absolutely clear. If there is a debate from the Minister, there has always been, on every single occasion that I have been here, the opportunity to respond. Calls alternate across the Chamber.

The CHAIRPERSON (Lindsay Tisch): I hear what the member says. It is a matter for the discretion of the Chair. I have chosen to accept the closure. I indicated when the previous member spoke that I would be taking one more call, which was Grant Robertson’s. The Minister then responded to some of the questions that had been asked, and I have accepted the closure motion moved by Paul Quinn.

In respect of that ruling, I wonder whether it would be appropriate for the Committee to seek further assistance. I move, That the Speaker be recalled to rule on the allocation of calls and the acceptance of a closure motion. As my colleague Mr Mallard has said, it is the usual practice of the Committee, when the Minister in the chair has taken a call, to invite responses.

Motion agreed to.

House resumed.

Speaker Recalled