Legal Services Bill

I will start with Subpart 1 of Part 3 of the Legal Services Bill, which transfers the administration of publicly funded legal services from the Legal Services Agency to the Ministry of Justice and goes on to provide that the Secretary for Justice will be responsible for establishing and delivering legal services. I note that clause 68 sets out the functions of the secretary, including assessing and determining the need for legal services by people of insufficient means. Clearly, it is of concern to members on this side of the Chamber that there are reports so many people are having difficulty accessing legal aid or legal services that they have to consider representing themselves. I am concerned there is an idea that more legal aid payments are being made, which seems directly related to the increase in both summary and indictable charges rather than the misconstrued idea that lawyers have somehow been gaming the system. I welcome the presence of the Minister in the chair, Simon Power; the last time I was able to participate in the Committee stage of the bill we had another member of the executive sitting in his place, and I think some of those issues need to be the subject of reassurances.

The Secretary for Justice will have the flexibility to establish different legal services and different methods for delivering those services. The secretary will be able to determine which method of delivery is most suitable in a given situation, whether by salaried lawyers as part of a public defender service, private lawyers funded by legal aid, or services provided by community law centres. Obviously, that flexibility, if it operates well, is to be welcomed, but there are some concerns about clause 68. I would like the Minister to consider taking a call to let us know his views on whether we are giving too much power to the executive and, in particular, to the secretary. The Minister will know that that concern was raised by the Law Society in this process. I think also it would be useful to hear from the Minister how the actual need for legal services and representation will be determined by the secretary and whether the issue of how community law centres are to be resourced on an ongoing basis is going to be front and centre in the mind of the secretary when he or she takes on this function.

I am also very interested to hear the Minister’s view on why there does not appear to be any obligation to consult with anyone or any group when determining the allocation of legal services. Surely a statutory obligation of consultation, which appears to exist under the current scheme, would encourage better outcomes. I note that the departmental report, which was considered by the Justice and Electoral Committee, states that good administrative practice indicates that that consultation will occur. If that is the case it would be useful to hear from the Minister why we do not just codify the requirement so that we are assured it will occur rather than just fall by the wayside.

The other matter worth drawing to the Committee’s attention is the insertion by the select committee of new paragraph 68(fa), which states that the secretary must “undertake or fund law-related research and education;”, which was asked for by submitters to the select committee. If that is going to occur then how does it gel with the funding gap, which the Minister has pointed to real concerns about? I think the figure we heard was $400 million in years to come. The Minister is nodding his head, so obviously this matter has been thought about. We want to hear from the Minister about how we are going to reconcile what he says is a major funding gap coming up in the out-years, in particular, with the obligation that the secretary is to undertake or fund law-related research and education. On those points it would be helpful to hear the Minister’s views.

I come to the rest of Part 3. Clause 69 empowers the secretary to contract with lawyers and law firms to undertake legal aid work. Presumably that provision exists to allow for providers in remote areas where there is not a good service in a particular area of speciality to assist with those who cannot afford to pay for their own lawyer. Clause 70 establishes the office of the Legal Services Commissioner. On clause 69 and the interplay with the clauses that follow I am interested in knowing whether the Minister has considered restricting the percentage of legal aid work that a lawyer or a law firm can do instead of leaving open the position so that all of the work a contracted law firm might end up doing is legal aid, and whether he thinks that would be a desirable situation in any particular case. Obviously from the Minister’s facial expressions he has seriously considered that matter too, so it would be helpful for the Committee to hear from him on that issue.

On the issue of the Legal Services Commissioner, we have, as was said in previous contributions in the debate, a move from an independent entity into the core executive. The Legal Services Commissioner within the Ministry of Justice will be responsible for the granting of legal aid, the determination of legal aid payments, and assigning and managing legal aid lawyers. Those were all formerly functions of a Crown agency, the Legal Services Agency, which will be disestablished by clause 117. Part of the work of the commissioner will be independent, but also much of it will be carried out by the staff of the ministry under this legislation, and that will not be done independently. So I think we need to hear from the Minister what guarantees are in place for the independence of the role of the commissioner and, in particular, the staff employed by the secretary but who are under the effective management or direction of the commissioner.

I also have some concerns about Subpart 2 of Part 3, but I propose to leave those matters to later in the debate, if I have the opportunity to take another call, because I think it would be good to hear from the Minister on the other matters I have raised.

Following on from my colleague Charles Chauvel’s comments, I want to address the issue of community law centres just a little further. Clause 94, which sits in Part 3, says the secretary may enter into contracts with community law centres. I presume that it is through those contracts that the Crown sets out the sort of work that it is willing to fund community law centres for. The Minister in the chair, the Minister of Justice, nods. That change is a good thing. I think I have said previously in another part of this debate that we do need to take care that the primary thing that we are funding through community law centres is actually legal advice—legal advice for people who need legal advice in respect of problems that they often could not get a lawyer to be interested in, and might not be able to afford to get any legal advice on.

Community law centres provide a very, very valuable and low-cost service to our country when it comes to advice on those generally more minor issues that can be, none the less, important to the individuals involved. If issues of more significance come through a law centre’s door, and they do periodically, then the normal practice is for the law centre to say to those people that they need some really decent legal advice from a full-time lawyer, rather than a community law centre. So the matter gets referred on to a lawyer.

Where there can be a problem is when one crosses the line between what is appropriate advocacy by community law centres on matters of principle to advocacy in favour of political causes. I have, on occasions, seen that from law centres where, I think, they have been perhaps applying the money that they get from the Crown to political causes, which they, no doubt, believe very strongly in, but there is an opportunity cost in them applying their resources to those tasks. The opportunity cost is that they are actually not spending it on legal advice for the people who come into legal centres in respect of legal problems. That balance needs to be carefully preserved, and one of my reasons for that is I believe strongly in the importance of law centres and I am concerned that if we do not protect their core functions, then if we get a law centre that goes too far with political advocacy, it could annoy a future Government. I am not saying there is currently such an intention by either law centres or the Government, but one can see that a series of events could be set up that would lead to funding for law centres being reduced in a way that would be to the detriment of the people who need advice from law centres. That advice is far cheaper than any other means that we have of delivering legal advice to people in New Zealand. It is cheaper than any other form of legal service, either privately funded or through legal aid.

The other issue I would like to touch upon briefly relates to civil legal aid, because although some of the rules that are being changed in respect of the Legal Services Bill will change the way in which legal aid is granted, they do not change the efficiency of court processes. The problem that we have in New Zealand is that court processes in the civil arena have, over the years, become too complex. They have become so complex that a lot of people cannot afford to access justice any more. Whether or not they are eligible for legal aid, often legal aid is a loan to them. It has to be repaid. It is a cost to the Crown. It is effectively a loan to the individual who gets legal aid and it has to be repaid in the future.

Although legal aid is very important, and I do not decry the importance of legal aid, the more important thing, in my opinion, is that we reform our civil court processes. I was a civil litigator for many years and I saw the change in process during the couple of decades, off and on, that I was practising. I saw our civil court processes become more and more complex. I have no doubt that if we run the full gamut of a court process through all of the interlocutory that can be forced upon parties these days, whether it is applications for further and better particulars of the statement of claim, whether it is questions asked before trial, which are called interrogatories, or whether it is the proliferation of expert evidence that seems to be admitted to courts, all of these things are driving the length and cost of proceedings.

When we get an outcome from a court decision, the outcome of it these days is near perfect. Not many of them are turned over on appeal, but there is always a trade-off between perfection and cost. When the pursuit of perfection goes so far that the cost of those legal proceedings, because the processes have become so tortured and long, becomes so high that people do not go to court to settle their disputes, then there is something wrong with the court system. That is where we have got to in New Zealand.

Someone told me, and I have not had the opportunity to check this yet, that in the High Court last year some 350 civil judgments only were delivered. In the whole of New Zealand there were only 350 judgments in such cases. I think that is an indictment on our legal system. A hell of a lot more than 350 disputes should have had the benefit of being litigated in court. Despite the fact that the number of judgments is down, the length of law reports is the same. When we read a judgment now that comes out of the High Court, most of them look like they are auditioning to write a new academic treatise on one subject or another. They have become, in my opinion, too often too academic and are becoming a little bit rarefied. I yearn for the day when we have judges who are a bit more robust—

💬 Hon Simon Power: Denning.

Yes, Lord Justice Denning, or judges like Justice Holland or retired Justice Hansen who keep control of their courts, have a good sense of fairness, give the parties a hearing, then deliver a judgment. We now virtually have no judgments delivered orally in New Zealand. It is very rare for an oral judgment to be delivered. Everyone goes away and they prepare a written judgment. Often that involves time from the judge and also clerks of judges, who assist, but in both cases it causes delay. Again, I am not sure whether judges are fearful that they are going to be overturned on appeal if they do not turn over every stone that has been pointed at by one of the parties in the litigation, but for these reasons our civil processes have become so expensive that they are not being used. That means that our court system is not serving the function that it is meant to, which is to provide people with a non-violent way of resolving their disputes.

The quality of justice cannot be divorced from its accessibility. Accessibility is largely a function of cost, and cost is not cured just through legal aid. We must minimise these costs. We should have legal aid in appropriate cases, but we must simplify these processes. So I would be interested to hear from the Minister of Justice his views on that. I know that the court rules are actually the Attorney-General’s rules. The Attorney-General sets the rules, and I think that it is time for the Attorney-General to take some control of those rules and to improve court processes so that the amount that people have to get, be it from a loan by way of legal aid or through their own means, is not disproportionate to the amounts of money that are at issue.

In response to the Hon David Parker’s comments on the Legal Services Bill, perhaps I could make three or four quick remarks. The first is that the need to expedite these matters before the courts and to ensure that that process does not divorce itself from quality representation and quality arguments is critical to a range of things the Government is undertaking across the justice area at present. I can tell him that if he holds his breath for long enough, help is on the way in the jurisdiction. We are dealing with the criminal area; the family area is next on my radar. We have been doing some things on the simplification of the court processes themselves. Of course, it was his Government that had the foresight to legislate for the removal of depositions, and this Government that instigated it. We are making progress.

To the matters contained in Part 3 of the Legal Services Bill, and in particular on community law centres, I share the member’s view that it is the role of community law centres to provide legal services to clients who cannot afford to seek that advice by way of payment directly from a law firm. Of course it might not be the case in the member’s part of the world, but many of these community law centres actually employ full-time lawyers. So the ability to simply hive people off to another firm is not always the case with some of these bigger community law centres around the country.

One of the things we are working hard towards is consistency of advice across those community law centres, sound governance arrangements across those community law centres, and relevance to a particular community to make sure that the skill set is correct. Those three categories of compliance have had diverse contributors to them—if I can put it that way—over the course of the last while. But I can assure members of the Committee that this Government and I are committed to the continuation of community law centres and the quality service they provide.

I have a couple of quick responses to some of the comments raised by Charles Chauvel. Firstly, on the statutory obligation to consult, I briefly advise the member that the consultation provisions in the Legal Services Act 2000, frankly, were used to stall and slow down legal aid reform during previous times. It made the development of the public defenders’ service much slower and far more expensive than it should have been. My experience has been that having a codification of statutory consultation actually invites that type of process to occur where differing benefits accrue. So on that basis I have no doubt that consultation will occur where appropriate. In respect of legal research and education, as I am sure the member knows, the secretary may undertake or fund law-related research and education rather than must. Law-related research and education is a traditional yet very small part of this particular vote and of the legal aid scheme.