Legal Services Bill

It is my pleasure to speak on the final stages of the Legal Services Bill. Although I am no longer a member of the Justice and Electoral Committee, I was a part of the deliberations and public hearings on this bill, and I want to reflect on some of the most important points that I think we need to get on record as members of the select committee going forward.

Charles Chauvel and other members of the Labour Opposition have quite articulately laid out our support but also our reservations about general direction when it comes to our justice system. The two most important principles for me in considering this bill were confidence in our criminal justice system and the issue of accessibility. For me, those are the most important elements of the legal services structure within New Zealand—particularly access to justice, which would be prohibited due to monetary reasons for many people if it was not for our legal services in New Zealand. That was prime in my mind in considering this bill.

When I reflect on Dame Margaret Bazley’s review of legal aid and the fact that the passing of this bill will draw a line in the sand for legal aid going forward, I think there is still some work to be done by the Minister in restoring and improving relationships between the Ministry of Justice, the Government, and the Bar, and particularly the Manukau Bar. It was pointed out very early on that because of some of the anecdotal references made in Dame Margaret Bazley’s report and some of the unsubstantiated claims that cast aspersions across the whole sector, there is a need to rebuild some of those relationships. I hope that the Minister of Justice focuses on doing that for the very reason that we need to restore confidence in our system in order for it to continue to be successful and to support the people who need it most.

I move on to the more substantial parts of the bill, and I will touch on the most important changes. Some were structural; for instance, the bill transfers the administration of publicly funded legal services from the Legal Services Agency as a separate entity and moves them into the Ministry of Justice. It was important to the select committee that we made sure there was enough transparency, enough distinction, between the way that the Minister and the ministry conducted themselves and the ability of that entity to continue to operate in a pseudo-independent way.

One of the things I am still disappointed with is that I do not feel the reporting requirements are perhaps as independent as they could be—for instance, almost all of the reporting comes through the Secretary for Justice to the Minister of Justice. I would have liked to see the new legal services entity and the legal aid commissioner having the ability to report directly to Parliament at their discretion without necessarily being directed by what the Minister of Justice or the Secretary for Justice wished them to report on. We debated that matter at the Justice and Electoral Committee, but in the end I fell down on the side of having perhaps a slightly more conservative line of reporting.

The second important area is the quality assurance framework that is being put in place, which will include a new accreditation system for legal aid lawyers. Again, for me, it is incredibly important in order to restore confidence in legal aid lawyers, not all of whom should live under the cloud of providing a poor service because, of course, not all of them do. Having this framework is an important part of restoring faith in the system, and I think it goes some way to addressing some of the issues Keith Locke has raised. I want to highlight the fact that the select committee had brought before it the point that not only is an accreditation system important but it is also important that lawyers working within the legal aid service do not feel they are being treated unfairly by those who administer the service. If a complaint is made against them, for instance, being able to deal with it in a transparent way also remains important.

I come back to the issue of the preferred lawyer. The Green Party has objected to it, and I think it is important to put on record in this third reading the debate that was had at the select committee. “Preferred lawyer” does not necessarily mean “best lawyer”. I think it is really important to highlight that. At the beginning of the debate, it seemed to me to be unfair to remove a person’s ability to choose his or her own lawyer, but it was brought to our attention that when we are talking about some of the less serious criminal cases—category 1 and category 2 offences—often the person who has been charged is not necessarily making a choice based on the credentials of the lawyer but on those whom they are referred to or those who tend to do the most legal aid cases. It does not mean that those lawyers are the best. It does not mean that the charged person is getting the best-quality service. In fact, in some cases those who are picking up a large range of the less serious criminal cases are some of the poorer lawyers—poorer in terms of quality—working in the field. It really dispelled some of the myths that might be attached to the use of the word “preferred”.

In the end I was comfortable that we were probably striking a better balance by ensuring there is a spread of lawyers dealing with category 1 and category 2 offences, in conjunction with the fact that we will have a quality assurance framework to make sure that everyone working within our legal aid service is a quality lawyer. Also, we have left in the legislation the discretion to allow a person who has used a particular lawyer in the past to use that same lawyer again. If someone has, for instance, specific language issues, or a sensitive case such as a domestic violence case or a Family Court case, and they have used a particular lawyer in the past, they are able to use that same lawyer again. Those protections exist, and it means that we are able to bypass the general rule of thumb, which will now mean that, generally, “preferred lawyer” will no longer exist for category 1 and category 2 offences, and I am now comfortable with that.

I move on to the issue of the public advisory committee, which is something that has been raised in the third reading speeches. I state for the record that I am not entirely convinced we have enough assurances that there will be a good line of communication—which was provided by a public advisory committee—between, for instance, community law centres and the Minister. Although I absolutely believe that Simon Power has proven, through the way in which he has dealt with community law centres in the past, that he does see the importance of these centres in our system, I am not convinced that that will always be the case. In fact, it has been brought into more stark contrast by the fact that Simon Power is leaving the Government. So we are faced with the imminent prospect of having someone potentially less empathetic to the very good work that these community law centres do. I highlight that we need to keep an eye on the lines of communication between the community law centres and Ministers.

On the issue of public education, I say that I am glad we have managed to clarify that it is not something that has been omitted from this bill. It has just been set out differently across two clauses. It is particularly important for groups like Youth Law, who play an incredibly important education and advocacy role, and, through this legislation, will continue to do that.

I have one final point. It is a shame that in an attempt to try to bring greater efficiency to our legal aid system whilst ensuring confidence and accessibility, the Government has undermined all of that work by having a ridiculous piece of legislation like the “three strikes” legislation. It is a case of one step forward and about five steps back.

I note that the “three strikes” legislation has nothing to do with the Legal Services Bill. Jacinda Ardern was outside the Standing Orders and Speakers’ Rulings by referring to it, given that third readings are about summing up the process and focusing on the principles of the bill, as Jacinda will see on page 117 of Speakers’ Rulings.

I will start my contribution to this debate by joining my colleague Kanwaljit Bakshi in acknowledging the new senior Labour whip. I congratulate Mr Barker, although I hope he is not quite as successful as Kanwaljit was proposing. I have noticed that Mr Robertson has been appointed Assistant Speaker only temporarily until the end of this week, and I look forward to Mr Barker resuming the Chair next week, given the contribution and leadership he shows in the House, which I enjoy.

💬 Simon Bridges: What was all that about?

Do not worry; Rick and I work out in the gym. I join the other speakers on the bill who have already alluded to the origins of the bill, which came out of the Dame Margaret Bazley review. Although structural and substantive changes are proposed in the bill, I will focus principally in this contribution on the strategic intent of the bill, rather than on its structural issues.

The starting point is that we must recognise that at some stage in any organisation or process, complacency becomes embedded, and the systems used and the focus shown are not in keeping with the service that is needed and demanded. As a consequence, the bill is very timely in order to update the processes.

I am pleased to join most of the speakers who have contributed to the debate. I agree with Jacinda Ardern’s contribution, particularly in terms of preferred lawyers. She covered her points very well. There was also a very good contribution from David Parker—

💬 Simon Bridges: What about mine?

—and from Simon and Kanwaljit. They were all excellent contributions. There is really nothing further I can add. I, along with my colleagues, have great pleasure in endorsing the bill.