Legal Services Bill

I wonder whether we could hear from the Minister in the chair, the Attorney-General, the Hon Chris Finlayson, on a number of matters that are of particular interest to the Opposition. As I said in my initial comments before the dinner break, to date the Opposition has chosen to offer support for the Legal Services Bill, but obviously that continued support is subject to its being satisfied about the concerns that it wishes to raise.

The first matter that I would be very interested to hear the Minister speak on is the issue of how it is intended that the Legal Services Commissioner, a role that is to be created under clause 70, is to function. That person is to be an existing employee of the Ministry of Justice, or is to be appointed as an employee of the ministry on taking office as the commissioner. The first issue is, what is the guarantee, if any, that the commissioner will not simply be a cipher for the Secretary for Justice—subject to, in particular, budgetary constraints—and will ensure that the overall aims and objectives of the legislation are met? Why should the Committee assume, given the wording of the legislation, that there is any desire on the part of the Government to see the commissioner, in particular, take care that the objects of the legislation are met? What safeguards does the Minister think are built into the legislation to ensure that the commissioner really does have regard to the purposes and the functions set out for the commissioner, particularly under clause 71?

I anticipate that if the Minister does choose to take a call and reply to the issues I am raising, he may point to clause 71(2), which describes the duty to act independently in respect of the functions set out in clause 71(1). But is that really enough of a safeguard, given the breadth of the transfer of powers that is proposed? Of course, what is happening here is that an independent body, which is at the moment a Crown entity at arm’s length from the Crown, is being taken into the Crown itself. Presumably one of the reasons for taking those powers closer to the Crown is an economic one, and I think it would be helpful if the Committee were to hear from the Minister on whether he feels that there are sufficient safeguards as to the exercise of those powers, and particularly whether they will not simply be able to be exercised at the direction or the discretion of the person who is in charge of the Ministry of Justice.

The second point relates to the ability of the commissioner to delegate powers, functions, or duties, which is set out in clause 72. Although there is a power of delegation for the commissioner, there is no guarantee that once any delegated powers are exercised they will be exercised in an independent way. Even if the guarantee of independence conferred by clause 71(2) is pointed to by the Minister, there is still the ability to delegate powers under clause 72. There is no requirement that the delegate of the commissioner should act independently. I think those are significant matters that we need to hear about from the Minister.

The next issue that the Opposition has a particular concern about relates to Subpart 2. This is the quality assurance provision in the legislation. At the moment there are a couple of important quality assurance provisions in the existing legislation. There is a public advisory committee, which, when we debate Part 4, we will see is disestablished by clause 118. There is also a review panel, which is to be disestablished by clause 128. What is proposed in place of these two means of assuring that legally aided persons receive reasonable quality, in terms of the legal services that they consume, is the regime to be set up by clauses 74 to 83. It would be helpful to hear from the Minister on what deliberations have occurred inside Cabinet when comparing the existing quality assurance provisions and assurance of public input into the system with the proposed provisions. Has there been such an exercise? Can the Committee take any guarantee from the provisions contained in the bill as to whether this regime is likely to be superior or inferior to the one that exists at the moment?

The other issues that it would be helpful to hear from the Minister about, in respect of this part, relate to Subpart 3, “Community law centres”. Clause 94 empowers the Secretary for Justice to enter into contracts with community law centres, so that they can provide services to communities on the terms of the arrangement entered into with the secretary, and then there are provisions concerning reporting and auditing. It is clear, and hopefully a matter of consensus across the Committee, that community law centres provide a very helpful and important service to the community. Again, it would be helpful to hear from the Minister in the chair as to how these provisions compare with the existing law, and in particular how the Government intends to ensure that the very good level of service provided by community law centres at the moment will continue under the regime set out in the legislation that is being considered by the Committee.

Finally, as far as the matters that I want to raise in this short call are concerned, I was interested in the Minister’s view on Subpart 5, and in particular on clause 108, which deals with the limitations in respect of the disclosure of information. There is a provision in clause 108(1) that every person should have the same privileges in relation to giving information, answering questions, and producing documents in respect of an application for legal aid for a civil matter as any witnesses have in court. Then there are provisions in the remainder of clause 108 that effectively derogate from that provision. It would be useful to hear from the Minister as to the levels of protection that are provided for people who go through the process of providing information. What protections are intended to apply to those people, and how do they compare with those in the current law? Is this Committee being asked to derogate from those protections, or does this legislation actually supplement them? I fear it is the former, and I think it would be helpful to hear some sort of assurance from the Minister on that point.

I would like to pick up on my colleague’s discussion of the review authority and the independence of the review authority, which clause 84 of the Legal Services Bill refers to. It is an important authority, in the sense that it decides on an appeal. I think it is important that we spend a little time on thinking and working through how it functions, and about the ability of the authority to deliver a competent decision that is independent both of the Minister and of the other parts of the judicial system.

Clause 84(1) establishes the review authority, and under clause 84(2) the Minister appoints one person to be the review authority. The bill, further on, states that the person is to be supported by a number of members of the Ministry of Justice. The function of the review authority is to review the decisions of the Secretary for Justice, as set out in clause 82(1). Clause 85(2) states: “The Review Authority may review a decision of the Secretary only on the application of a person in respect of whom the decision is made.” So the integrity really, depends and swings on the ability of that person to be seen both as independent and as capable and competent.

Schedule 3, to which Part 3 refers, sets out the provisions that apply to the Legal Aid Tribunal. Again, there is a question of independence and how those people may be appointed. The term of office of the tribunal is 3 years, although the bill does not give a maximum. A member of the tribunal can be reappointed—I am talking about the tribunal, not the review office. I would like to hear from the Minister about the appointment process: how that appointment process proceeds, whether we will see a maximum term of appointment, and whether in custom it is generally intended that somebody would stay on for one term of office, or perhaps for two terms. It would be interesting to hear from the Minister whether that is seen to be the case in this part of the bill.

The tribunal, again, is serviced by the Ministry of Justice. The tribunal is serviced by employees of the ministry. The liability of the tribunal is set out in clause 6 of schedule 3, which states: “The Tribunal and members, officers, or agents of the Tribunal are not under any criminal or civil liability in respect of—(a) any act done or omitted in the course of the performance or exercise, or intended performance or exercise, of any of its functions, duties, or powers under this Act; or (b) any words spoken or written at, or in connection with, any review, determination, or direction to reconsider under this Act.”

Looking at this part, I think the provisions relating to both the review authority and the tribunal are well set out. But I come back to the point raised by my colleague Charles Chauvel about the issue of independence. Obviously, the independence of this office is very much dependent on the way that the person and the tribunal are appointed and how they are able to carry out and do their job. The person who will be appointed, as I understand it, will be a lawyer of 7 years’ experience. The person will be qualified; I do not think there is any issue about that. But the continuation of service, the time for which that person will stay on the tribunal or the review authority, is an area that we would like to have some clarification on. The degree of independence, given that the person is to be appointed by the Minister, is also an issue of concern.

Thank you for the opportunity to speak to Part 3 of the Legal Services Bill. The previous two speakers focused on the review authority, which, I understand, is contained under clause 86 of the bill. I want to change the focus of the Committee to clause 79 of the bill, which establishes a safeguard for those who are applying for legal services under the bill, but first I will have to refer back to Part 1 of the bill to talk about its spirit.

The purpose of the bill, as set out in clause 3, is “to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means; and (b) delivers those services in the most effective and efficient manner.” I think members on both sides of the Chamber want to ensure that that happens. But I think we need to make sure that we do not get into a situation where the legal services offered under this bill become second rate, whether that be because of the quality of those who represent the applicants or the amount of resources that are afforded to that representation. The Hon Simon Power was in the Chamber earlier during the debate, and he mentioned that there was a shortfall of about $405 million for legal aid services over the next 5 years. That, of course, is a major concern to members on this side of the Committee, because, as I said, we do not want there to be a perception of a second-rate service when it comes to the legal aid that is offered under the bill.

We are offering broad support to the bill, but clause 79 allows the secretary to establish a performance review committee, and “The function of the committee is to assess and advise the Secretary of any matter referred to the committee by the Secretary relating to the performance of a provider.” The committee has a primary function of making sure that the applicants—those who seek legal aid—get the services that they are after. In my dealings as the MP for Mana I have seen that those who seek legal aid services—and remember we are talking about people with insufficient means to get legal services on their own, through no fault of their own—may be ignorant of the law and the processes around seeking legal aid. We need to make sure that the quality and processes that are in place when they seek legal aid are top-notch.

Going back to the performance review committee, as I said, some of the people who seek legal advice and legal aid have insufficient means. It is a very important safeguard for those people to have the ability to go to a review committee and have 3 months in which to ensure that they are heard. They can gather the information that is required over that 3-month period in order to make sure that their application or the review of their case is heard. In terms of the performance of the lawyers who offer legal aid, under the bill anyone who provides legal advice must be approved by the secretary. That is not to say that anything that lawyers offer in terms of legal aid will be adequate. So it is great that there is a safeguard mechanism within the legislation to make sure that those people who do not feel they have received adequate resources or quality legal advice from those who offered legal advice to them can go somewhere to make sure that their concerns are heard.

Mr Chairman—

The CHAIRPERSON (Lindsay Tisch): The question is that Part 3 stand part.

Mr Chairman—

The CHAIRPERSON (Lindsay Tisch): The member must go for the call straight away.

I was so busy trying to prepare my speech that I did not hear the bell ring. I appreciate very much the opportunity to speak on Part 3 of the Legal Services Bill. Before I begin, because we have come back after the adjournment I want to acknowledge—as others have acknowledged—that the country is in mourning as a result of the disaster in Christchurch. Under these circumstances it is somewhat difficult to simply get into the mode of attacking members on the other side of the Chamber. It is quite difficult to get into the mood of making significant contributions as the Opposition when we know that families in Christchurch are mourning their loved ones and the loss of their homes. So I apologise for my rather slow movement to take a call on the bill.

Nevertheless, I will make reference in Part 3, firstly, to clause 77, which states that “The Secretary may give a person approval to provide 1 or more legal aid services or specified legal services if the Secretary is satisfied that the person meets the criteria prescribed in regulations.” I recognise the basis for the bill, but to me, in so far as the wider community is concerned, this is not necessarily a priority. There are people out there who are suffering and struggling to make ends meet. It seems to me that this Government has its priority the wrong side out. Nevertheless, when we talk about acknowledging the facts that legal aid services are important and many, many people—

Progress reported.

Report adopted.

The House adjourned at 9.55 p.m.