Legal Assistance (Sustainability) Amendment Bill

I move, That the Legal Assistance (Sustainability) Amendment Bill be now read a second time. The bill amends the Legal Services Act 2011 and other Acts to ensure that legal aid remains affordable in the future and that legal aid services remain available to those who need them. The bill focuses on improving the quality, efficiency, and effectiveness of the legal aid system. The bill also continues the Government’s drive to improve the prioritisation of legal assistance provided to vulnerable people. It builds on the Legal Services Act 2011, which replaced earlier legislation governing the legal aid scheme and contained a package of changes to improve the administration of the scheme and the quality of services provided by legal aid lawyers.

Legal aid expenditure increased 55 percent between 2006-07 and 2009-10—from $111 million a year to $173 million a year—placing the legal aid budget under extreme pressure. This growth was expected to result in a $402 million gap between forecast expenditure and available funding. The Government had to act to bring this growth under control. We have done so through a package of changes to the eligibility criteria for legal aid, how legal aid services are purchased, and the payments received from legally aided persons. Some of these changes did not require legislative amendment and are already in effect. Those that require legislation are contained in the bill.

The Justice and Electoral Committee has considered the bill, and I thank the select committee and officials and commend them for their efforts. The committee has suggested by majority some sensible changes to the bill, many of which were proposed by the Government Supplementary Order Paper, 134, which was referred to the committee. The Government has adopted all the changes proposed by the committee’s majority. The committee received 25 written submissions on the bill and heard 15 oral submissions. The Government heard submitters’ concerns and provided the committee with a Supplementary Order Paper intended to respond to these concerns. The Government Supplementary Order Paper proposed substantial changes to the bill, leading the committee to invite further comment from submitters. The committee received five written submissions on the amended bill, which were generally supportive of the bill’s additional focus on outcomes for legal aid clients.

Since the bill was first read, two main factors have reduced the need for changes to eligibility criteria. The first of these is the reduction in forecast expenditure on legal aid, in part due to the non-legislative measures we have undertaken. The second is the expected impact of the Family Court Proceedings Reform Bill, which, by putting greater focus on children and vulnerable people and encouraging more people to resolve minor family and civil matters between themselves rather than through the courts, is estimated to save $41 million in legal aid costs over 4 years.

The reduced expenditure provided scope to reassess reductions in eligibility to further align with the Family Court Proceedings Reform Bill, particularly by bringing the changes to legal aid in line with its focus on protecting vulnerable people and children. The changes contained in the Government Supplementary Order Paper were the outcome of this alignment with the Family Court reforms.

The committee endorsed the Government Supplementary Order Paper and recommended, by majority, further changes. Significantly, the amended bill refocuses on outcomes for legal aid clients. The Government Supplementary Order Paper improved the bill by maintaining the existing financial means test for less serious criminal cases and retaining certainty in civil legal aid matters that will receive legal aid.

The Government Supplementary Order Paper also made changes that will increase debt repaid to the Crown from those legally aided persons who are able to afford it. The bill now extends provisions to allow interest to be charged on all finalised debt, and the use of deduction notices is streamlined to allow the use of this more efficient method of repaying debt by deducting money directly from people’s wages, benefits, or bank accounts.

Despite the gradual reduction of legal aid expenditure, legislative change is still required to bring expenditure under control. The Legal Services Act’s purpose is to promote access to justice by establishing a system that provides legal services to people of insufficient means and delivering those services in the most effective and efficient manner.

The Government has responsibilities both to provide access to justice and to use public funds responsibly. We recognise that in a time of fiscal constraint, difficult choices are required. The bill makes the savings required to ensure the ongoing viability of the legal aid scheme. It balances this by enabling funding to be prioritised to those vulnerable people who have the greater need for legal assistance. I commend this bill to the House.

Andrew Williams. Andrew Little, sorry.

Thank you, Mr Speaker.

💬 Mr DEPUTY SPEAKER: My apologies.

No offence taken. I am flattered to have been confused with such an honourable member. That speech from the Minister of Justice about the Legal Assistance (Sustainability) Amendment Bill confirms that this Government’s changes in the justice sector are about cost cutting and, far from promoting justice, are about denying access to justice.

There is a principle that lies at the heart of any justice system, and that is access—access to justice. Access to justice, if it is to be of any use at all, must be equal. There is no system of justice if it is confined to the rich and the powerful. So legal aid plays a very important role, and what any Government does in the area of legal assistance and legal aid is very important.

The State in exercising its coercive powers, whether through the police or other prosecuting agencies, or, indeed, simply through bringing people before the State-funded courts, must make sure that those who are brought before the courts have a reasonable chance of getting good representation and having their interests heard, particularly when there is a risk, or a chance, or a threat that their liberties may be denied and they may be detained. Then it is even more important that they have access to legal advice and representation.

So State assistance to low-income people, to the poor, to the impecunious—as they are often described—whether in criminal matters or whether they are parties to a civil matter, is absolutely essential. Without legal aid, without legal assistance, we have a justice system for the rich, and that will never do in a liberal democracy such as ours. The Legal Services Act 2011, which is the primary piece of legislation in this whole matter, states as its purpose “to promote access to justice” by, amongst other things, providing “legal services to people of insufficient means;”—providing legal services to people of insufficient means.

This Government has embarked on, or at least in this case it did embark on, radical change to legal aid following the Bazley report. When you talk to the legal profession, you find differing views about that report, the merits of it, the basis of it, and the evidence that was used to support the changes that were recommended in it. But there is no doubt in my mind that the Minister has confirmed it in her speech just now that the real concern is not about the quality of justice or the quality of representation; it is about the cost to the State of ensuring that that is provided.

We all understand that the State’s coffers are not bottomless, but the principle of justice and access to justice is one that must sit very high in the priorities of any Government, to support the people. We must make it a priority to make sure that people are adequately supported and therefore adequately represented.

The Bazley report also talked about a concern about quality, and Dame Margaret Bazley raised the question about what she described as the long-term viability, and therefore the sustainability, of the system. She claimed that there was abuse of the legal aid system. Well, I have read the report, and I fail to see what the real evidence of abuse was. But let us assume that there were some lawyers who were not up to scratch, and who were claiming legal aid for not doing a very good job.

💬 Hon Maurice Williamson: No, really?

They were very small in number—very small in number—and Mr Williamson may well have observed some himself. I do not know. There may well have been some. But let us have a look at the consequences of the administrative changes made to the legal aid system to date.

We are seeing good lawyers now refusing to do legal aid work because rates have been cut and the hours available to do particular work have been cut, and those lawyers—good lawyers, lawyers with strong track records, and I was talking to some just the other night in Auckland, former police officers turned lawyers who know criminal justice, who know the other side, and who know what good quality and adequate representation look like—can no longer make it work for them. There are a growing number of lawyers who are no longer doing legal aid, because they cannot make it work.

Who is suffering as a consequence of that? Not them, because they will find other work. They will find the fee-paying clients who will use them—well, the lawyers might have gone into family law once upon a time, but they may not even go into that when this Government has finished with that area. They will go into other areas of work. But defendants—those who have been arrested, those who are facing prosecution, and who are impecunious—are the ones who miss out. They do not get the voice in court that a proper liberal democracy requires them to get. If this bill is about making positive changes and improvements to the legal aid system, it will not do it. It simply will not do it.

Some of the more insidious changes that appeared in the original bill that came to this House in the last Parliament have been removed as a result of the work of the Justice and Electoral Committee and, indeed, of the Minister of Justice’s Supplementary Order Paper 134, but the underlying principles that have driven the change have not been removed, such as the desire to cut costs for the sake of cutting costs, not for the sake of improving representation.

There was an argument given, or a reason given, for why this bill has been so delayed, and that is that the Government can get on with its Family Court reform. That is turning into a complete shambles now, because having sort of run at Family Court reform like a bull in a china shop and having said: “We are going to make all these changes. We are going to withdraw the rights to legal representation. We are going to take independent legal representation off children.”, the Minister then said a couple of weeks ago: “Oh no, we got that wrong. We are going to have to change that.” But we still do not know what the change is. And we do not know what impact a piece of court reform, the Family Court reform, which was about reducing—at least in one part—the cost of legal aid, is going to have. We simply do not know whether there is going to be a saving in legal aid or not at all.

This bill does not change its underlying premise, which is simply about cutting cost—simply about cutting cost. There are still problems with this bill—there are still problems with this bill. The first one is that it leaves in place barriers to legal aid and legal representation when people need it most. One of the provisions that it leaves in place is that if you have already been legally aided, and you are required to repay your legal aid, and you are behind in your payments and you then face another court hearing that would otherwise entitle you to legal aid, you may not get legal aid, because you are behind in your payments for your last matter.

That is not justice. Impecunious people often find it difficult to meet their financial obligations. That is the nature of being poor. That is the nature of poverty. When it comes to the administration of justice, and when it comes to appearing before the court and facing a prosecution, we should not deprive people of proper representation because they have an outstanding obligation to the State for another matter. That is wrong. That is unjust. We are opposed to the bill for that reason.

The second problem is user fees. This bill introduces a user fee for those who are legally aided. It is absolutely bizarre. Why, when you are dealing with the poorest in our community and the most impecunious, would you, on the basis of providing State assistance, then say: “Now you are going to have to pay a fee as well.”? It may be only $50, but $50 for somebody who cannot make ends meet is $50 too much, $50 they cannot afford.

And then there is the third aspect, which is charging interest to the legally aided on amounts outstanding. Legal aid was never a banking system. It was not about an overdraft and making a loan from a bank. It was about providing assistance at a crucial time in your life, when you need it most.

The general direction this Government is taking in justice is wrong. It is about cost-cutting. The courts are in uproar because of the cuts in the courts, the Crown solicitors around the country are in uproar because their fees and their budgets are being cut, and the court staff are under stress. The Family Court staff in Auckland know that what they are operating now is a complete shambles, and they cannot make it work. Everything this Government is doing in justice is wrong and bad for people, and this is just another measure this Government is taking. We are opposed to it. It will not help people who need it most, and it will be bad for the justice system.

As chairman of the Justice and Electoral Committee it is a great pleasure for me to rise and stand in support of the second reading of this Legal Assistance (Sustainability) Amendment Bill this afternoon. In so doing I would like to congratulate the Minister of Justice, the Hon Judith Collins, on her very good introductory comments, because prudent fiscal management lies at the very core of this John Key, National - led Government. It is about ensuring that hard-earned taxpayers’ money is well spent, while at the same time making sure that the investment that is made by the Crown of taxpayer money in tight economic times extracts absolute maximum value.

Andrew Little stated—and I thought wisely so, given that he is from the Labour Party—that the State’s coffers are not bottomless, but he absolutely chose to ignore any kind of attempt at providing a solution as to how the State might fund a bottomless legal aid requirement, and especially so given our difficult financial times. Legal aid expenditure increased by a massive 55 percent between the years 2006-07 and 2009-10, and this growth, had it not been focused upon, would have resulted in a massive $402 million legal aid funding gap over 5 years. So the current legal aid system, in this form, was unsustainable, and National has taken action to bring it under control. We are committed as a Government to ensuring that the legal aid system remains affordable in the future, and that legal aid is available for those who need it most. We want to make sure that legal aid is available for those who need it, while also ensuring that it remains absolutely affordable.

Our proposals are designed to save $138 million over 4 years. These changes will not, as the Labour Party implies, affect cases involving vulnerable parties. They will not make any changes where care and protection of children are involved or where there are serious criminal matters. The bill is designed to get parties to resolve more minor legal matters between themselves, rather than through the courts, and that is a very good premise upon which to work. And, although we make sure that legal aid is there for those who need it most, this bill strikes a very good balance between ensuring that the viability of the current legal aid scheme is continued and at the same time prioritising funding to people who have the highest need for legal help.

So what have we done so far in terms of legal aid reform? Well, this Government has started to reform legal aid to improve the quality and to reduce costs after eligibility and lawyers’ fees were expanded previously under the last Labour Government, which did so without any real regard to the cost of that scheme. We passed the Legal Services Act, which, amongst other measures, established performance standards for legal aid lawyers. We expanded the Public Defence Service to take up to half of all criminal defence cases. We made victims of serious crime eligible for legal aid for coronial inquests and parole hearings.

This Legal Assistance (Sustainability) Amendment Bill provides greater flexibility to adjust eligibility into the future and improvements in the assessment of eligibility. The reforms include a tightening of the merits test for family cases by no longer needing to take into account the interests of other vulnerable parties. The bill adjusts the special circumstances consideration in the means test for family and civil cases so that it focuses on the expensive cases. There are a raft of other measures in the bill that have been addressed and worked through by the Minister of Justice’s Supplementary Order Paper 134 and by the Justice and Electoral Committee, and I want to congratulate and thank members of the select committee for the work that they have done. This is a good bill. The Hon Judith Collins made excellent comments in her introductory remarks. I absolutely commend the bill to the House.

I too rise to speak in relation to the Legal Assistance (Sustainability) Amendment Bill. I, like my colleague Andrew Little, believe very strongly that this is certainly an improved bill from the one that was introduced, but it is not one that we can support. I refer to the comments made by the Minister of Justice. She reflected on the $41.3 million over 3 years that the Government intends to save from the cost of legal aid in care of children cases in respect of a piece of legislation, the Family Court Proceedings Reform Bill, which is still before the Justice and Electoral Committee. I just want to comment on that, because everyone has so far mentioned that particular piece of legislation and talked about the impact of those savings. But when we hear Government members talk about the savings in their fiscally responsible way they never ever talk about who will carry the cost if things do not go the way that they anticipate they will.

Let me just let the House know exactly what the Minister means when she says that there will be $41.3 million worth of savings, “Legal aid would not be available for simple track proceedings and up to and including settlement hearings in standard track proceedings. This would only apply to care of children cases. Lawyers could be engaged and privately funded. Legal aid would still be available for without notice proceedings and for standard track proceedings once they were set down for hearing.” What that means in fact is that without a claim of, essentially, abuse within the relationship or an abusive environment there is no capacity to get lawyers involved in the early part of proceedings unless you can afford to pay for it yourself. Where you already have a disproportionate relationship between two people, in terms of their capacity to afford legal assistance, that immediately puts the more vulnerable of the two on an unequal footing yet again where one party can obtain legal assistance that they can afford to pay for while the other cannot. “This option only affects those parties who, because of their low income, are eligible for legal aid. If they cannot get legal aid, they are likely to be unrepresented. But the opposing party may have a lawyer.”—this is what the regulatory impact statement sets out—“This could lead to the represented party’s view being put more strongly and create or exacerbate power imbalances between the parties. It may also lead to a perception that access to the court is the preserve of those who can afford it.”

Well, that is correct. That is absolutely spot on. They have acknowledged that that is the impact of it, but the advantage that they see is that it “manages legal aid expenditure.”, and that just does seem to be the overriding consideration. The regulatory impact statement then goes on to say that “some people may have difficulty completing the forms, proceedings may take longer and a judge may feel he or she needs to see the parties in court more often. There is likely to be greater demand for court staff and non-governmental organisations to assist people. Better information resources, clearer court processes and use of support persons (McKenzie friends) would help mitigate these disadvantages. For lawyers, legal aid work would reduce but other work would not.” I think they are missing the point. This whole figure of $41 million assumes proceedings with the mandatory family dispute resolution option, and the whole purpose of this option, as the Minister herself stood in this House just a few minutes ago and said, is about getting people to sort out their private disputes away from the court and not coming near the court, and therefore saving her budget this extraordinary amount of money.

But the judges do not agree that that is going to happen. Certainly the lawyers that we have heard at the Justice and Electoral Committee do not think that that is going to happen, as well. In fact, what they are fearful of is that the most vulnerable of individuals who come before the courts will find themselves in an even more vulnerable situation. They talked of people who cannot read—adults who cannot read; people for whom English is a second, third, or fourth language who will not have the capacity to understand necessarily what they have to include in their affidavit; people who have intellectual disabilities, who we know find themselves much more vulnerable to abusive environments than those who do not; and others with disabilities, and again we have had people give evidence in relation to that matter. We have had lawyers give us examples of cases that, I think, when we do get around to debating that bill, members of this House would be moved to hear the details of them. We have heard evidence in private that we will be able to refer to when that bill does come back to the House.

What I am concerned about is that we have already heard two speeches from the Government that reflect a mind-set that is about knowing the price of everything and the value of nothing. Of the examples that we have had given to us I will just reflect on one lawyer who gave evidence down in Christchurch, because I think it is incredibly relevant to this. She was working for a larger law firm, and of course when the legal aid changes were first mooted the entire law firm decided that it would not make itself available for legal aid cases any more. That law firm in Christchurch is not alone in terms of its pulling out of legal aid work. This particular lawyer, who presented, I think, a very compelling submission to the select committee, said that she could not desert the clients that she had. They were largely refugees, recent migrants, people with difficulty with English not being their first language, people who had some of the most vulnerable situations that they were having to confront. She said that her conscience, her ethics said to her that she could not stop providing that service to her clients, so she left the law firm and set up on her own in a difficult situation in Christchurch. This is post-earthquake. This is with all of the stuff that is going on. She set herself up in her own practice so that she could continue to provide legal aid support to that particularly vulnerable group of clients.

I think that members of the Government have to remember that when you start talking about big numbers like $41 million that is actually potentially taking away the capacity for vulnerable New Zealanders to access our courts. That is what the legal aid system is all about. I just want to remind people of the risks that were set out in the regulatory impact statement for this bill when it was introduced: “reductions in the price paid to lawyers could create gaps in provision, particularly in the family and civil jurisdictions where there is more choice of private work and in some smaller centres where there are already supply issues.”—we have already seen that come to pass—“The introduction of income and asset thresholds for the criminal means test will be in tension with section 24(f) of the New Zealand Bill of Rights Act, providing for the right to an affordable defence. It could also delay some court cases if judges defer proceedings because of inadequate representation. Restrictions to eligibility will disadvantage people on low incomes, who have few options to find legal services elsewhere. Generally this includes young Māori men in the criminal jurisdiction and women and children in the family jurisdiction.” And I do want members of the House to think about young Māori men in the criminal jurisdiction, and women and children in the family jurisdiction. Then it says: “Withdrawing legal aid for low income groups is likely to lead to additional costs elsewhere in the justice system.”, which is where I began. “In particular, it may increase the number of self-represented litigants, with flow on costs due to delays, additional assistance required from court staff and the judiciary, and higher numbers of appeals of decisions.” I think this is very poor legislation. It may have been improved at the select committee as a result of the Minister’s Supplementary Order Paper 134, but it is still not worthy of passage through this House.

One would be hard pressed to say it is a pleasure to speak to the Legal Assistance (Sustainability) Amendment Bill. It is more a matter of being resigned to having to speak in opposition to this raft of justice legislation that comes from this Government. Most of it is poorly thought out and it will not deliver the results or the outcomes it is intended to produce. I did not have—

💬 Hon Maurice Williamson: Say something nice.

I will say something nice, just to please Mr Williamson.

I was not sitting on the Justice and Electoral Committee for this bill. I do have to commend the select committee for this bill being significantly better, or, should I say, less bad than it was, going into the committee. I will speak in some detail of some of the clauses, or some of the provisions, that were in the original drafting that are, frankly, a disgrace, and the Minister of Justice should have been ashamed to put her name to some of those draft provisions. I will come to that in time.

One of the first things one notices, in reading the select committee report on this bill, is the intention or the proposal to change the name of the bill, from the Legal Assistance (Sustainability) Amendment Bill to the Legal Assistance Bill. I guess I would say “Good try, folks.”, but I think you cannot really deny the fact that, nevertheless, this bill is about cost-cutting.

As a student, practitioner, researcher, and teacher of resource management, I know a bit about sustainability. Often in the language of sustainability you are talking about resource allocation, and particularly the allocation of scarce resource. The scarce resource we are talking about here, under this Government, is access to justice, which is becoming increasingly scarce in this country, with the array of legislation that we are seeing put into place. Misguided policy in the Family Court proceedings is another very good example, or, rather, a very poor example, of that. So I am afraid nobody will be persuaded by the change of name or the change of some elements of the bill that this is anything but a cost-cutting exercise.

The Government does not seem to have woken up to the fact that the line-by-line budget reduction it is imposing on its Ministers—the obligation to snip away at every single line item—is actually a flawed and a doomed process. Any business owner, or any successful business owner, knows that if you try to cut every line item in your budget without thought to the consequence, without thought to the cumulative effect, then very quickly you will find yourself in a condition of failure. This bill will not reduce costs overall to the Government, to the State, or to the justice system. It will simply displace costs into other parts of that system, and on the way it will also impose significant social costs, which will be borne by some of the most vulnerable, by some of those least able to bear those costs.

That point was very well made by the District Court judges, in Wellington, who very carefully prefaced their comments, recognising that the judiciary and Parliament stand in a relationship of tension. They were not taking a political stance; simply a pragmatic one. The point they are making is that driving down access to justice for individuals, taking away the opportunity for people to get legal representation, will lead to more self-representation in the court. More self-litigants will endeavour, typically quite badly, to represent themselves in the courts because they cannot afford to pay a lawyer and legal aid will not be available to them.

What did the District Court judges in Wellington have to say about that? They said “Formal legal proceedings in which parties represent themselves often take significantly longer than they would if counsel were appointed, and require judges to take a proactive role assisting the undefended party.” They make the point that it is often necessary to appoint a friend of the court—an amicus curiae, if my Latin pronunciation stays with me—and that simply puts costs on the court’s budgets, rather than some other place. The judges go on to say: “The District Courts are concerned that any savings made by restricting access to legal aid in summary criminal matters may be offset by an increase in the number of self-represented litigants putting pressure on court time and resources.”

They go on to say that self-litigants, self-representation, also put extra load on court staff, who experience difficulty in communicating and in getting information to people who may be itinerant, who may not have a fixed address, and who may have poor literacy skills, and they are constantly having to explain matters. Instead of being able to speak in convenient legal shorthand, as they can with legal representation, they are obliged to spell it out. All this bill does, as do so many others, is displace costs in the misguided attempt to reduce them.

There were numerous submissions to this bill, as there have been for others, from the legal fraternity, from the profession, from the Law Society, from the Criminal Bar Association, from individual lawyers, and from community law centres and the like. Unfortunately, the constant refrain we hear from this Government, and, indeed, from the Minister, is that the lawyers are simply displaying self-interest. That is a very unreasonable and an unwarranted claim—that lawyers are simply self-interested. Mr Little commented on some of the conversations he has had with lawyers and legal firms. I have had very similar conversations as recently as last night with people who are saying that many legal practices now will actually not go there with legal aid cases, because they simply cannot afford to bear the loss, to bear the cost, that it imposes on them.

It is interesting that the Criminal Bar Association, in its supplementary submission, referenced the Bazley report and pointed out that it recommended that criminal lawyers operate a proper business infrastructure, that they deliver a high quality of service to their clients and to the courts, and, indeed, to the justice system, and that competency and seniority be properly remunerated. These are absolute obligations that any ethical legal firm, or any legal practitioner professing to have an ethical basis for their practice, must accept—that there is a cost to deliver these services and the bottom line is that if the legal aid provision is not sufficient to meet those costs, then there is a limit to their capacity to operate ethically and properly, and in a way that will fulfil their obligation.

As I said, there is a great deal to criticise in this bill, even now. I do have to acknowledge that there were some considerable improvements made. One of them was the so-called Henry VIII provision, which in the initial drafting would have allowed the Minister, effectively, by Order in Council to determine eligibility and to vary eligibility over time. I think the phrase was something about maintaining the viability of the whole system. Yes, it does need to be viable, but “Henry VIII” clauses are, as we know, anathema. We do not want the ability given to Ministers of any colour or of any Government to make substantive alterations to legislation. That is Parliament’s job, not a Minister’s job and not by Order in Council. The “Henry VIII” clause was refused.

I think one of the most disgraceful elements of the first draft of this bill—and, again, I give credit to the select committee for having recommended that this be taken out—is around the matter of disposable capital. In the original drafting, it was proposed that a person’s capacity to pay for their own legal representation should in part be determined by an assessment of their disposable capital, their disposable assets—such things as people’s furnishings, their clothing, their tools of trade, and assistive technologies for people with disabilities. In other words, under the original draft, before one could claim legal aid, you might have to sell your sofa and your kitchen table, your clothing, the tools that you use to make a living, and your hearing aid. What an extraordinary and a disgraceful proposition, and all credit to the select committee for having thrown that one out, and I hope we do not see anything of that ilk reappearing in any other legislation.

Similarly, with regard to the proposition that there should be changes to the appointment processes for youth advocates, the Youth Court judges came out very strongly and essentially said “This is not broken; don’t fix it.” The process works very well. The Youth Court advocates do a very good job. It is a very difficult job. They are well qualified. They meet a very high bar before they can be recognised and perform in that role. Let us not try to mend something that is not broken.

I would like to very briefly just comment, too, that a number of submitters pointed out that the overall thrust of this bill, by making access to justice less readily available to the least well-off, is actually at odds with our New Zealand Bill of Rights Act. The right to consult and instruct a lawyer is embedded. I look forward to continuing this conversation in later readings, but for now, suffice it to say, the Greens will oppose this legislation.

I rise to take a short call in support of the Legal Assistance (Sustainability) Amendment Bill. The previous speaker, David Clendon, was a bit confused. On the one hand, he commended us for the changes we have made, yet he then continued to criticise us. Having been on the Justice and Electoral Committee, I commend the Minister of Justice, having heard from the Opposition and from others, for acknowledging the need to defer this bill. The reason for that was to allow consideration of the Family Court review report to Cabinet in May 2012. This deferral was to ensure that the legal aid reforms were consistent with that review. This is what has happened, hearing what has come out of that review.

There have been nine changes to Supplementary Order Paper 134 and four recommendations from the select committee. The changes are retaining the existing appointment frameworks for lawyers; removing the proposal to use Orders in Council; removing the tighter financial means test for less serious criminal offences; removing household goods from the eligibility calculation, which Mr Clendon spoke about; reducing the proposed user charge; and charging interest 6 months after a legal aid debt is finalised instead of immediately; and new provisions provide clarification around the ability for the Legal Services Commissioner to refuse legal aid. There were four recommendations from the select committee, including giving legal aid providers reconsideration, review, and appeal rights for decisions.

We have listened, we have heard, and we are aligning this to the Family Court review, as had been petitioned by the Opposition. As a member of Justice and Electoral Committee, I am proud and confident that we have heard and we have ensured that we are meeting the needs in respect of the eligibility of those in need. I commend this bill to the House.

I am afraid I would have to say that the Legal Assistance (Sustainability) Amendment Bill as introduced was a thoughtless attack on the legal aid system in New Zealand. It was basically a quest to save money without regard for the legal aid needs of people who cannot afford to pay a lawyer. The Government was willing to do serious damage to the system. In respect of criminal legal aid, people with less serious charges to face, but still needing a defence, would have had to defend themselves, often with disastrous consequences for justice and good court procedure. The availability of aid for lawyers for the child and for youth advocates would also have been seriously reduced, and proceedings for which aid could be granted could have been removed through legislation.

Predictably, there were a large number of submissions on the bill, especially in respect of those matters. To her credit, the Minister of Justice has listened to the chorus of protest and has shown a willingness to amend the bill. In October she introduced Supplementary Order Paper 134 to undo some of the harm that the bill would have done. That Supplementary Order Paper does indeed address many of those matters. Firstly, and in particular, it does retain the existing appointment framework for lawyers for the child. [Interruption]

I raise a point of order, Mr Speaker. There seem to be a lot of interjections from one side of the House to the other.

The ASSISTANT SPEAKER (Lindsay Tisch): I am the—[Interruption] Order! I am the judge of that.

I hope that members on both sides of the House will observe the rule that if there are to be interjections, then, please, by all means, address them to me but not to each other.

That was the first issue that was addressed. I agree, in fact, that the lawyers for the child and youth advocates were indeed absolutely necessary. Those people cannot represent themselves, and the courts would be constrained in delivering justice without the assistance of lawyers. The second issue is this: the removal of the proposal to use Order in Council to alter the proceedings for legal aid eligibility. It is something that is called a “Henry VIII” clause, and it is good to see it gone.

The tighter financial means test for less serious criminal cases has also been removed. I approve of that and also some common-sense stuff like removing household goods from the calculation of eligibility for legal aid, which is just that—a good, common-sense deletion.

The Minister of Justice has indicated changes to be introduced in regulations. New Zealand First approves of the reduction of the user charge from $100 to $50. We think that is fair and sensible. Also, we are glad to see the provision that says that interest will not be charged for the first 6 months on legal aid debts. We do think, however, that it would be better still if no interest was charged on legal aid debts.

The Supplementary Order Paper also introduced several new propositions, including increased ability to refuse to grant civil or family legal aid in certain circumstances. That is still being worked through, through the Family Court Proceedings Reform Bill, and again there are many protests, so we will wait and see how that turns out. The point is that it is another attack on the accessibility of people to lawyers, to legal representation, in this country.

I did want to comment on the provision that requires an applicant in arrears for repayments on previous legal aid debts to be subject to a test under which they could have legal aid for a proceeding removed. The point about that is that that is not a fair and proper legal aid system. That provision should have been removed altogether. If there is any concern about people not paying their legal aid bills—[Interruption]

The ASSISTANT SPEAKER (Lindsay Tisch): Order! I am sorry to interrupt the member, but there can be no reference to the public in the gallery.

If there is any genuine concern about people not paying their legal aid debts, then that can be addressed better in other ways, not by removing legal aid altogether. That is not consistent with the purposes of the Act, and that provision should have been removed altogether. The members opposite may laugh about that, but, in fact, there are people out there who will not laugh when they are denied legal representation by a provision that is completely against the purposes of the Act.

Another issue is this: charging interest on legal aid debt. I am glad that the Justice and Electoral Committee recommended what I asked it to do, which is to delay the imposition of interest for 6 months. It would have been better, however, if interest on legal aid debt was removed altogether. Clause 12 of the bill as introduced requires a payment of interest from the beginning. The delay of 6 months is a good provision, but better still would be no interest on legal aid at all. The reason for that is simply that too many people—too many low-income people—will be affected by that provision. It does not provide any real encouragement for those people to repay their debts sooner. In fact, many may give up. An interest-free provision, I believe, is a proper Government contribution to legal aid in this country, and interest should not be required at all.

I also approve, however, of the reimbursement of costs for lodging a caveat over property to secure legal aid debts. That is already done, in fact, as a condition of the grant. However, it is perfectly proper, I think, for the new legislation here to put that into law to regularise that. Concerning additional eligibility for legal aid, New Zealand First disagrees with allowing the commissioner to refuse legal aid, as I have said, if there are arrears. We think that is very unfair.

Overall, we think that Supplementary Order Paper 134 amends this bill to improve it very significantly, but in the end it has not done enough to address some of the problems, especially those that I have mentioned. So, taken together with the availability of legal assistance, which is already not easy to get in this country, and the proposals for the Family Court legislation that are going through at the moment, the problems with this bill mean that New Zealand First cannot support it. The bill’s genesis was penny-pinching. There have been some good amendments now proposed, but none of them go far enough to make this good law or a bill that we could support.

I am delighted to speak to the second reading of the Legal Assistance (Sustainability) Amendment Bill. This bill makes changes to how Crown-funded legal services are funded and includes legal aid, providing a lawyer for a child, and youth advocate services. This bill was deferred to allow consideration by Cabinet. Subsequently, in October last year, the Government Supplementary Order Paper 134 proposed substantial changes to the bill as reported back from the Justice and Electoral Committee. Those changes have been adopted and there will be an opportunity in the Committee of the whole House to discuss those changes. I commend this bill to the House.

You know, I was curious at the level of interjection from the National benches before. They were all baying while my colleague Denis O’Rourke from New Zealand First was on his feet. You would think that if the National Government wanted to say something on this bill, the Legal Assistance (Sustainability) Amendment Bill, which is so embarrassing to it, so replete with U-turns and back-downs, that it would have taken a full 10-minute call. But not one—not one—National member of Parliament fronted up to this House to take a full call to explain themselves to New Zealand and explain why they could have got it so wrong in bringing in the Legal Assistance (Sustainability) Amendment Bill. Maurice Williamson, who is a liberal in the National Party, must have been intensely embarrassed that his then Minister of Justice, Simon Power, brought a piece of legislation into this House—supported and endorsed by every member of the National Cabinet and every member of the National caucus—a piece of legislation so utterly wrong, so utterly prejudiced, and so utterly extreme and mean-spirited that the Justice and Electoral Committee had to come back with its tail between its legs and bring back a bill that is scarcely recognisable.

But I have got to say this: I congratulate the select committee. Select committees should have the guts to look at the legislation introduced by Ministers who have not done their homework and throw it out on its ear if it is totally inappropriate, and this legislation was totally inappropriate. You know, what we have got here in this report back is a 12-page apology by the select committee, including members of the National Party and its allies, saying “We got it wrong.”, and even then it has not taken it far enough.

You know, what I really object to in this legislation is that it undermines a core principle that goes to the heart of the justice system, and that core principle is this: justice is available for all, not simply according to your ability to pay for it. What this legislation would have done, in order to save money, was deny people who could not afford justice the ability to access legal representation in court, and that means injustices almost certainly happen. It means that people who could not afford to be represented would have represented themselves, and you know the old saying in law is that the person who makes himself a representative in court has a fool for a representative. But it is not only the injustice that that would have done; it would also have taken longer in court. It would have taken more of the court’s time and, therefore, it would have been more expensive.

You know, the problem with National members is that they regard justice as a commodity that can be bought and sold, rather than as a right—the right of every New Zealander, regardless of their financial means, to be fairly represented in court, to have the right to defend themselves, to have the right to protect themselves against civil action, and to have the right to ensure that their side of the argument is heard in any criminal matter. That is a fundamental principle. It is not something that should be traded off. Yet this legislation contained at its heart a willingness by a National Government—and, to his eternal shame, Simon Power—to say that people will be denied justice because they cannot afford to pay for it. Legal aid is not freely provided in this country. You have got to be on a pretty low income before you are even eligible for it. I think the income threshold for people who are single is $22,000. You know, that is barely the minimum wage. Yet the people who most need that support would have been denied it under this bill, and this bill is just an accumulation of U-turns and apologies for what the National Government got so wrong.

You know, the title of the bill gave it away. It was the Legal Assistance (Sustainability) Amendment Bill, and one of the recommendations of the select committee is to remove the word “(Sustainability)”, because “sustainable” actually meant cost-cutting, but it was cost-cutting on the basis of denying legal aid to those on low incomes, without the means to have proper representation. You know, what I really object to is that this was a Government that, when it introduced this legislation, had just finished giving the biggest tax cuts in history to the people on the highest incomes in our country. So it is not—

💬 Jacqui Dean: Oh, not true.

It is not rubbish, at all—not rubbish, at all. They were people like the Prime Minister. He gave himself literally more than a six-figure tax cut while the Government was cutting the eligibility of people who could barely rub two coins together in order to be properly represented within the legal system. Where is the justice in that? It is not socially just, it is not morally right, and in the end, even for this miserable National Government, it was unsustainable and it has had to back down. It has had to come into the House with its tail between its legs and say: “This cannot be sustained.”

I am really concerned about a number of things that were in this bill. For example, it said that an applicant could be refused legal aid if the applicant was in arrears for repayment. I am not justifying people not paying the debts they owe, but I am saying that there are many, many reasons why a person might not be able to afford to repay the legal aid debt that they have incurred. It may be misfortune. It may be that they are on a low income. It may be that they think putting shoes on their kids’ feet and food in their mouths is a little bit more important than repaying the bill that they owe to the legal aid authority. But what this bill would have done was say: “OK, you’ve got arrears. Therefore, you get no assistance.” So a person who, for whatever reason, has arrears would have been denied the fundamental foundation of justice, which is legal representation in court. I ask any one of the members on the National Party benches to justify how that was right. Finally—finally—with pressure from the Opposition parties, National has come back and it has put in an interests of justice test. Well, I want to ask Jacqui Dean why that was not there in the first place. Why was that not there in the first place? It is absolutely fundamental. Then it has made a half-hearted change. It was going to have a user-pays charge of $100 and, in its real sense of generosity, it has now cut that to $50. If $100 was wrong, why is $50 right, when we know that even a small fee can be sufficient to discourage people from seeking legal representation and incurring other costs in court?

But there are other things that were particularly bad, and I think that clause 20 was something that I cannot understand—I cannot understand why members of the National caucus approved this when Simon Power brought it to them. Not one of them—not one of them—has got to their feet and tried to justify this. When you were determining whether a person could be granted legal aid, you would set a threshold that would take into account the clothes that they wore, the furniture, the second-hand furniture, that they would have, and the appliances—the washing machine and the fridge—and it would take into account the tools of trade, the very tools of trade that they required to earn a living. These things were all to be used against somebody on the basis of their ability to get legal aid. How mean, how miserable, how unsustainable is that?

Well, actually, it is not the worst thing. The worst thing they were going to do is that they were going to take into account the technology that disabled people were using to give them the ability fundamentally to function in life. So if you had an electric wheelchair, that would be taken into account as an asset and as an excuse and a reason to deny people legal aid. Maurice Williamson, why did you support a piece of legislation that came into the House that contained provisions like that? They bow their heads in shame, and so they should because this was an appalling piece of legislation, partially repaired by what the select committee was able to do, and congratulations to the Opposition members who sat on that committee and fought the Government and embarrassed the National members into joining with them and saying that these changes are fundamentally necessary.

But the point remains that this was a piece of legislation that was ill-thought-out, ill-conceived, and mean-minded. It should never have seen the light of day, let alone be introduced as a piece of legislation before this House. It has been partly repaired, but the underlying sentiments are still there and this Labour Party will oppose this legislation. I now invite the next National member to get to his or her feet and try to justify—

Sorry to interrupt the honourable member.

That was the Phil Goff angry speech, which is a little bit different from, but very similar to, the Phil Goff angry speech. So that is speech No. 5, I think, in the repertoire of angry speeches from Phil Goff. It also illustrates—[Interruption] It is a formula. It also illustrates the attitude of the Labour-Green Opposition, in that it closes its eyes and it hopes that what it spends will not make too much of an impact on the economy.

But that is an approach not taken by this National Government, and that is why this bill is called the Legal Assistance (Sustainability) Amendment Bill. That is exactly the reason this bill has been brought to the House. We are determined to make legal aid and court services sustainable into the future. National is committed to ensuring that the legal aid system remains affordable in the future and available to those people who need it most. I commend the bill to the House.

I understand the next call is a split call—5 minutes. Kris Faafoi.

That was call No. 5 from the National side of the House today. I think that speech by Jacqui Dean can be best summed up as another nothing speech from that side of the House. There was nothing to justify the miserly, miserable implications that are held in this bill, the Legal Assistance (Sustainability) Amendment Bill. There were five speeches, and nothing from that side of the House to justify what is being done in this bill.

I recall a meeting in mid-January 2012 when my former colleague Charles Chauvel, the justice spokesman, and I attended a meeting with a local Porirua lawyer. That lawyer was up in arms about what was being proposed by this National Government in this bill. If I can sum it up—basically, after about an hour’s meeting with this lawyer, a long-serving lawyer in Porirua, she was very frustrated by, and in horror at, what this Government was proposing with this bill—one of her final comments to us, to me and to Charles Chauvel, was: “Where else do they go? If they can’t come to us and get legal aid, where else do they go?”. Basically, of those people whom that law firm represents, there were quite few legal aid cases. When that lawyer, a senior partner in the firm, said to us: “Where else do they go?”, the answer was pretty simple. They have nowhere to go. They could not represent themselves in court. Mr Goff has already spoken about that. These people do not have the ability to go to court and represent themselves. That is why they relied on the services and the help of legal aid, to go to that law firm and try to get some equal access to justice so that regardless of how much money they had in their bank account, or whatever their worldly possessions were, they could have a fair crack at justice. Well, the fear from that lawyer, back in January 2012, was that those people had nowhere else to go. I am pretty sure if we gave her a call right now, she would still say the same.

In an unfortunate volley of interjections, a Minister in the House, the Hon Maurice Williamson, said: “Speak from the heart—speak from the heart.” Where is the heart, from the National Government in this bill for vulnerable Kiwis who no longer have access to justice because of what this Government is proposing in this bill? Where is the heart in this bill from the National Party, from this Government, for Kiwis who now will have a much, much higher hurdle to jump to have fair and equal access to justice? Mr Goff and Mr Little, and I am sure Lianne Dalziel who spoke earlier, spoke about the fee that is being charged to people to access legal aid. These are people who probably do not have enough money, and that is why they are applying for legal aid. This Government is asking them to pay a $50 fee. I understand, through the Justice and Electoral Committee process, that the members on that select committee heard from a number of submitters who basically said: “Yes, we will represent them, but we will probably just wear the cost ourselves.” So those law firms are going to incorporate the cost of that access fee into the cost of representing those people, if they were to get legal aid. So in the end they are saying that if you charge this fee, the Crown is going to be paying anyway. Introducing that fee is in no way going to help those people, and those practices that are offering legal aid, to give fair and equal access to justice.

I want to reiterate what Mr Goff said. This bill is ill-informed, ill-advised, and was rushed. You do have to commend the select committee that saw this bill through. I think there has been quite a diplomatic way in which it has been described. I think they took an awful bill, made some improvements, and now it is just bad—now it is just bad. They have taken what was completely and utterly reprehensible, and now it is just a bad bill. That is why we on this side of the House cannot support the bill. It goes against what is fundamental to this side of the House, and fundamentally goes against the principles of fair and equal access to justice. I know that Mr Simpson said in his speech that this move has been made by the Government so that it could have prudent fiscal management. It has not got the balance right between prudent fiscal management and the principle of justice and equal access to justice.

I too just want to stand in opposition to this bill, the Legal Assistance (Sustainability) Amendment Bill. I support the comments that have been made by Opposition parties today opposing this legislation. It does really make you wonder just how much money the National Government wants to suck out of the poor. How much does it really want to keep sucking out of the services to those who have the least, so that it can keep shovelling it, in great bucketloads, to those who have the most? That is what this bill does, along with a whole range of other National Party policies. It is just shovelling money into the coffers of the wealthy, and taking it from those who need it most. This is just one more example of that policy, of that unfairness, of that meanness—that meanness—from this Government.

I heard some of the Government spokespeople speaking about this bill. Yes, it is true, and I agree with others, that they have taken a financial approach to this, as opposed to one of access to justice. It does interfere with a major part—in fact, a core part—of the social contract that New Zealanders, that the community, that citizens have with the State. I was a bit disturbed to hear one National MP—I do not know who it was or which of them it was—talking about how hard-earned taxpayer dollars are well spent. Their concern was that hard-earned taxpayer dollars are well spent. We have also heard tonight exactly what that means when it comes to denying justice to those who are entitled to it. What it means is shifting the cost—shifting the cost so that it does not turn up on the Government books in this form; it simply turns up on the Government books in other forms.

What are those other forms? I will tell you. Those other forms will be the costs to women who are trying to be safe from domestic violence instances, for example, where they are not in a position to declare that in the Family Court. The Family Court legislation changes that are coming will actually undermine their ability to be safe. They will not be in a position to declare it, so therefore they will not be able to get access to legal aid in order to support their claims. What will happen to them? We know what happens to them. We see the statistics of domestic violence in this country every day. That is where some of the costs will be borne—on the bodies of women and children who will bear the bruises because they are unable to escape dangerous situations, because this Government is taking away from them the ability to escape from those situations. They will not have the legal representation they need to be able to get away from those kinds of situations and to protect themselves in the process. That is where some of the costs will be borne.

There will be other costs borne in other places. You know, there is a cost that is going to be borne in the jails. We are going to see the costs reflected in corrections. It costs more than $90,000 a year to keep a person in jail. I was talking to lawyers about this bill when it first came to the House. I was talking to one lawyer who has a range of clients. They are difficult clients, they are often in trouble with the law, they have very few resources, and they have very poor education. It is very difficult. She works with them in order to try to build up their skills so that they are less likely to get into legal trouble, but they need her and her representation in court. If they do not get it—because they will not after this legislation passes—what will happen to them? They will not be trying to get on to courses, they will not be trying to help manage their families, and they will not be out there trying to get work. They will be in jail, because they will not have had the representation that protects them and tries to move them away from a life of crime to a more sustainable and a more socially useful lifestyle.

Just that little bit of extra support that those families and those people could use by getting legal aid to have decent legal representation is simply going to cost the taxpayer in hundreds of thousands, millions and millions, of dollars in corrections costs. That is what we are going to see happen. So this is not really about saving money; this is about just being mean. And it is no surprise to me at all that National would bring to the House legislation like this, which is nothing but mean to the poor. Thank you.

The question was put that the amendments recommended by the Justice and Electoral Committee by majority be agreed to.