Legal Assistance Amendment Bill

This bill was introduced initially by the former Minister of Justice Simon Power. It would be easy to blame him for the absolute disgrace that that original legislation represented. It would be easy to blame him, but for the fact that every member of the National Party in Government and its disgraced acolytes that support it in this House voted for that bill. That bill went to the Justice and Electoral Committee and it received, first of all, the regulatory impact statement, which said that the legislation introduced by that National Government would have denied people the basic right that every individual who lives in this country should have, which is about access to justice. Legal aid is designed to ensure that those with insufficient means are not denied access to justice.

You see, it is probably pretty hard for the National Party to understand that justice is not a commodity. It is not a commodity that can be bought by those who can afford it and be denied to those who cannot afford it. But that is exactly what the Legal Assistance (Sustainability) Amendment Bill would have done. And what we have here in this legislation, the Legal Assistance Amendment Bill, is a nine-page apology from the National Government about the nature of the changes that it originally sought to make, which would have denied justice to people in this country. It would not only have denied justice to those who could not afford it and not only put at huge disadvantage one person of lesser means in a civil proceedings against somebody of greater means but it would have ended up clogging up the system and costing more, because when a person is forced to be a self-represented litigant, that requires more costs at every stage of the justice system.

What is more, the regulatory impact statement pointed out that this would put huge pressure, for example, on social agencies. It would increase the level of stress on people who were facing domestic violence, and those problems would not be resolved, because there was not a mechanism to resolve them. It said that the fundamental principle of a decent society, which is justice available to all, would be taken away.

Judith Collins, in the second reading of this bill, and Simon Power before her, said that the reason that this bill was being introduced was that the cost of legal aid had soared. The cost had gone up. It had gone up because in 2007, for the first time in 20 years, the rates of payment to legal aid providers were actually adjusted. Of course, the cost went up, but the result of this legislation, as introduced and probably as it still is amended by the committee, is that fewer and fewer providers will be willing to lose money by representing people on legal aid, and that would create a huge injustice in this country. It is not that legal aid is generous. To qualify for legal aid as a single person, you have got to earn less than $22,000 a year. That is about $425 a week. It is $10.60 an hour. Do you know what this bill and the requirements of the threshold of legal aid do? They prevent any working person earning more than the minimum wage from being eligible for legal aid.

💬 Hon David Cunliffe: That is outrageous.

That is outrageous, as my colleague has just said. It is outrageous, because the people who cannot afford the cost of legal representation are often those really hard-working people on low incomes, and they would be denied the right to get legal aid. This would be a system purely for those who were on social welfare benefits and I believe that justice should not be denied to those low-income people who cannot, even though they work hard, actually afford legal representation.

So what we saw in this bill was a measure that would make our society, growing in inequality, even less fair by denying more and more people the right to justice. You know, it is not about unaffordability at all, Minister; it is about your priorities. This Government’s priority was very clearly that it would cut tax on those on the highest income levels. So you can give the Prime Minister a six-figure tax cut a year, but you refuse to give people who cannot afford legal representation the right to have their position represented in court. And we are talking about people who are often in no situation—no situation—to be able to represent themselves. This was the bill as introduced—

💬 John Hayes: Not true.

—Mr Hayes, and you know it, and it was so appalling that even the National members on the Justice and Electoral Committee had to take a knife through most of the provisions and cut them out. I want to know in the Committee of the whole House from the Minister of Justice why it was that every one of her colleagues voted for that bill as introduced, why they did not do their homework, and why they did not give a damn about justice.

I was sitting on the plane this morning between two businessmen—nice guys, actually—but they were talking about their kids going to the school ball. They were saying it was terrible. One of them said: “You know, my daughter’s dress cost $3,000.” He said it was $3,000 for her dress for the school ball for St Cuthbert’s College. I thought to myself, and I actually pointed it out to them, that that sounded a bit strange to me, representing a low-income electorate, that here we have people who cannot afford to put shoes on their kids’ feet and that businessman was spending $3,000 on his kid’s school ball dress.

I want to say this: the bill as introduced was going to take into account in terms of asset testing things like your refrigerator and your washing machine and your vacuum cleaner. You know, it was so mean and miserable that it was going to take into account the value of your electric wheelchair if you were disabled. What a disgrace. I want to know why it was that the National caucus approved this bill and the National Cabinet put it to the House to come in. Only at the select committee deliberation did they run away with their tail between their legs and say that even a hard-hearted, cold-hearted National Government could not possibly produce the injustice that this original legislation was going to produce.

But I have got to say that there are still things that are wrong with this bill, even with the changes that have been made. An application can be turned down, for example, if a person getting legal aid is in arrears. Well, the nature of poverty and the nature of being on a low income is that you live from wage packet to wage packet. If you have got a bill owing because you are paying for legal aid because it becomes a loan rather than a grant, you are not going to be able to keep that up and still meet the other costs that you are struggling to pay out when you are living on the edge. You know, ask any reasonable parent and they will say that they will put shoes on their kid’s feet and food in their stomach before they will pay the arrears in the legal aid bill. So this Government in its wisdom says that if you are falling behind in your arrears and you cannot pay them, then we will deny you further legal aid and therefore we will deny you justice. Well, they had to qualify that by saying that maybe there should be an interests of justice argument and a test there, but there is a very clear rule that should be set in this, and that is that you do not deny people legal aid if they are not paying their arrears because of the hardship they are facing. For God’s sake, the members of the National Party surely have enough humanity to see that there are situations of gross injustice that will arise from their legislation.

Then they decided that the user charge that they brought in of $100—another discredited idea that they took from the Ruth Richardson years—was not really going to work because that would be a barrier to people, so they made it $50. Well, why is $50 right if $100 was wrong? Why are they nickel-and-diming that sort of thing, when even the select committee report to the House indicates that that could still be a barrier?

And not only were they going to deny people who were in arrears of legal aid any further access but they were going to charge interest on arrears of legal aid, and that is still in the bill. Again, they have left some room for discretion, but there should be some more clear-cut test that that should not be required if hardship would result. What they have done effectively is said that even in the event of hardship—

I must say that that speech has been an interesting historical lesson from the Hon Phil Goff, who has talked an awful lot about my predecessor—and of course my predecessor is not here to defend himself. But I will take it as a compliment that Mr Goff is obviously quite pleased with some of the changes that we have brought about. I would actually like to come back to the Legal Assistance Amendment Bill and Part 1 of the bill, rather than history.

Part 1 of the bill amends the principal Act. It reclassifies certain eligible proceedings before the Parole Board as criminal matters rather than civil matters as they are now. This is a largely administrative change, but it will make it easier to obtain legal aid for these proceedings. Part 1 also tightens the criteria by which applicants can receive civil legal aid when their income and assets exceed the relevant threshold specified in regulations. This will ensure that civil legal aid is limited to those who genuinely cannot afford a lawyer. I, for one, am one of the people who look in horror as we see some of these failed finance company directors on legal aid, with all their money tied up in trusts, laughing at the taxpayer. Some members may not find that very, very sad, but I certainly do.

However, special protections have been put in place in the case of asylum proceedings, care and protection applications, and some domestic violence applications. In these cases the means test will be less stringent. When a legally aided person is in arrears on previous civil legal aid debt, Part 1 provides that the Legal Services Commissioner may refuse to grant further legal aid unless the interests of justice require otherwise. This provision balances access to justice with the responsibility of legal aid recipients to repay their debts. Criminal legal aid will not be affected and this provision will not apply to vulnerable people in certain types of proceedings.

Provision is made in Part 1 for a user charge to be payable to the legal aid provider in civil proceedings. Providers will be able to decline to provide services until the charge is paid, or to recover the charge if the services have already been provided. The user charge is a small but significant contribution from the applicant to ensure that the legal aid system remains financially viable in the long term. Again, certain proceedings involving vulnerable people will be exempt, to ensure continued access to justice. Clause 11A makes it clear that legal aid amounts payable under conditions of grant are debts due to the commissioner. This will allow the commissioner to recover debts more efficiently, including in any relevant court or tribunal if this becomes necessary. Interest will now accrue on all legal aid debt 6 months after the debt is finalised. The commissioner will have additional powers to collect legal aid debt from benefits, wages, salaries, and bank accounts by issuing deduction notices. However, for those who are unable to pay, Part 1 protects a minimum amount of earnings to ensure the debt is repaid without causing financial hardship to legal aid debtors. It also extends current provisions, allowing debt to be written off to include any interest associated with that debt.

Clause 14 creates a deputy review authority to assist the existing review authority in examining the commissioner’s decisions and appointing legal aid providers. This will assist the legal aid providers, or lawyers, by ensuring any review applications are examined and resolved promptly. Existing legislative provisions allow caveats to be lodged against property or interests owned by a legally aided person. This ensures that legal aid debts are repaid when the property or interest are disposed of, and Part 1 allows the commissioner to recover any costs, such as solicitors’ fees, incurred in lodging caveats before the commencement of these reforms. This will ensure the caveat provisions are used appropriately to secure legal aid debt owed to the taxpayer. Finally, Part 1 clarifies that the commissioner must decline claims from legal aid providers that exceed the maximum grant amount, that are not of a type approved by the commissioner, or that are excessive or inaccurate, and this will further bolster appropriate cost control in the legal aid area and will encourage quality and predictability in the system.

I have, in fact, tabled today Supplementary Order Paper 250 in relation to this particular part of the bill, to make provision for electronic processing of applications for legal aid in criminal cases where no discretion is required. This change will allow aid to be granted automatically if the appropriate statutory criteria are met, or referred to a legal aid grants officer for further consideration if they are not met.

Grants of legal aid made under proposed new section 16A are not subject to the conditions referred to in section 18 of the Act—for example, the condition that the grant must be repaid. They will, however, be subject to a maximum grant, the level of which we notified in the Gazette. Grants made through electronic processing will otherwise be as if they were made under the standard process, and the Legal Services Commissioner will retain her or his ability to cancel or correct the grant if an error is made. This change is an administrative improvement, which will have no impact on eligibility for legal aid. It affects only internal Ministry of Justice processes. The likely impact on legally aided people and legal aid providers is that decisions are made more quickly.

Supplementary Order Paper 250 also amends Part 1 of the bill to clarify the operation of certain regulation-making powers in the Act. Currently, section 114(1)(b) provides that regulations can be made to prescribe methods for calculating maximum grants of legal aid. Following the Court of Appeal’s query around regulations, the Government believes there would be merit in further clarifying the circumstances in which Parliament intends for such regulations to be made. This Supplementary Order Paper therefore amends section 114(1) so that regulations can prescribe fees to be paid for legal aid work, the circumstances in which they would apply, and criteria that would be needed to depart from the fees. This change will allow clarification of the boundaries within which Parliament expects the commissioner to exercise his or her discretion. The Government considers this a reasonable and appropriate step, as it ensures that the commissioner retains his or her independent discretion to depart from prescribed rates where appropriate in a particular case.

The effectiveness of this provision is supported by two other changes contained in the Supplementary Order Paper. Section 99 is amended to enable the commissioner to decline any claim to the extent that it exceeds the fees set in regulations. Section 52 is amended to give applicants for legal aid the right to seek review of the commissioner’s decision to depart from or refuse to depart from fees set in regulations in their particular case. These changes combine to ensure that not only does the commissioner retain his or her discretion to depart from prescribed fees but also there are appropriate pathways for legal aid applicants to seek review of such decisions. Thank you. I believe that Part 1 is the substantial part of this bill. It is a very sensible amendment to the primary Act, and I think it is one that this Committee should support.

The original purpose of the Legal Assistance Amendment Bill, especially as set out in Part 1, was actually to wrench cost savings out of the legal aid scheme, without properly considering the effect on low-income New Zealanders’ ability to have effective legal representation. The result would have been many more self-representation cases, more appeals, less effective justice, and, as a result, in fact, more, not less, costs.

The Minister of Justice did not want to talk about history because, I think, the history of this particular bill is a little bit embarrassing for the Government. Out of necessity, the Government has rethought the amendments, and the proposed cuts, I am glad to see, have mostly been abandoned. The Minister referred us to Supplementary Order Paper 134 and the amendments that that puts alongside the bill. That Supplementary Order Paper did address many of the concerns raised in the proposals, including, first of all, removing the proposal to use Orders in Council to change proceedings for which civil legal aid is available, which was far too excessive; removing the tighter financial means test for serious criminal cases, which was another very concerning issue; and removing household goods from the calculation for eligibility for legal aid, which was a perfectly ridiculous provision. The Minister also indicated changes to be introduced in the regulations, including the reduction of the proposed user charge from $100 now to $50, which I will refer to later, and also the charging of interest, now 6 months after legal aid debt is finalised, rather than immediately.

These changes are welcome, but New Zealand First will still not be able to support the bill as a whole for three good reasons. Firstly, New Zealand First will vote against the bill with new section 10(3A), inserted by clause 7(2), in it. The Justice and Electoral Committee recommended allowing the commissioner to refuse civil legal aid if the applicant is in arrears for repayments on previous legal aid grants, but subject to an interests-of-justice test. The committee’s proposed clause would further amend the eligibility criteria for civil legal aid to encourage legally aided people to recommence payments, and, once they began making repayments, to become eligible again for legal aid. The majority said this provision would be unlikely to reduce significantly the number of people receiving legal aid, but I am not convinced of that at all, and I think it is likely to cause injustice, even if only in a few cases, by making legal aid unavailable to people. I do not particularly trust the commissioner’s discretion being exercised in this way.

The majority also said that they had carefully considered the likely effects of this provision on vulnerable people, and we are assured that domestic violence, mental health, refugee, and protection cases would be exempt from the provision, but I remain concerned that such people would in fact be denied legal aid, and, again, I do not particularly accept the assurance given. The point is this: that eligibility should not rely on the commissioner’s discretion at all in that way—simply to deny or not to deny legal aid because of a past legal aid debt, especially where domestic violence, protection cases, and suchlike are concerned.

Secondly, the bill’s original purpose for the reintroduction of a user charge remains, although it is now $50 rather than $100. Most of us know that in many cases legal aid providers simply paid that charge, as their clients could not afford it. That should not be necessary, and in my experience on the Legal Aid Review Panel for several years, I could see from reading the files that that happened in a large number of cases, so what this provision is going to achieve I do not know. At a time when more and more providers are exiting the business of providing legal aid, this seems to be self-defeating and bad public policy.

The third reason is this: the bill’s provision is that interest be charged on legal aid. The majority of the committee, in amending clause 12, said that it should be paid on all unpaid final legal aid debt to ensure that the “amount payable”, as defined in the principal Act, captures all final debt. The intention was to incentivise prompt repayment, but that, I think, is very unlikely, given the financial position of most legally aided people. So, again, we have an utterly pointless provision that is going to achieve nothing whatsoever.

I am pleased, of course, that there is an amendment to delay the imposition of interest for 6 months from the final determination of what the debt would be, but the point is that the principle itself is wrong. People who qualify for legal aid are, by definition, not easily able to afford it. Charging interest will make their position even worse. The State should get repayment for legal aid, because that is the basis of the scheme, but the State should make a contribution by bearing the interest—not the person who gets the grant. The State, of course, actually pays no interest itself; the scheme is provided from taxation. In some cases the imposition of interest will itself create hardship. We are told that there is a discretion so that the interest and, in some cases, the debt itself, can be waived, but this is likely to be too often withheld. Again, I refer to my experience on the Legal Aid Review Panel, where I read many files and cases where people complained that it had been withheld in inappropriate cases, and that was true in many cases.

This bill was badly conceived at the outset. It is nothing more, really, than another attack on the lowest-income people in the community. It is penny-pinching at the expense of an effective legal aid system. Many amendments have been needed to the bill—and these are welcome—but there are still some fundamental problems with it, especially those three that I have set out. The Government would be best to scrub this bill altogether, and, for those reasons, New Zealand First will certainly vote against it.

I would like to add weight to the comments made by my colleague Denis O’Rourke in respect of the Legal Assistance (Sustainability) Amendment Bill, as it was introduced, but now to be known as the Legal Assistance Amendment Bill. The reason that, I think, the Government has taken the word “sustainability” out of the bill’s title is, really, to take away from our reflections the legislation’s real focus, which is actually about cost cutting. To use the word “sustainability” when actually you mean “cost cutting” is, I think, unfortunate, so I certainly approve of the removal of the word “sustainability”. But I question whether it was put there in the first place for reasons that are unhelpful to a public discourse around something that perhaps is not a very popular subject, which is access to justice. Obviously there are people who are very easy targets when one is looking for cost-cutting measures, and those who face criminal charges in our courts are the very easiest of targets.

I want to remind the Committee why this legislation was introduced in the original format that it was. Again, it was not a desire to address the overall issue of sustainability; it was to look to where cuts could be made to legal aid that would be acceptable in terms of the public eye. I want to remind the Committee what one risks when one goes down this track, helpfully summarised in the original regulatory impact statement that was prepared for the original legislation. I do think it is important to place on record when we are dealing with Part 1, because this is the substantive part of the legislation, what the particular risks were that were discerned right from the outset. The first one was that “A change of purchase approach is required, but is likely to be resisted by some parts of the legal profession, particularly those who may feel that it will reduce their incomes or curb the choices they can make when managing cases. This is likely to lead to an increase in the number of legal challenges of legal aid grants, as well as public concern.”

I just want to unpack that language a little bit. What it is about is actually blaming the legal profession, who devote their lives to supporting people through the criminal courts, particularly those at the lower end of the offending range, who day in, day out, in the courts in South Auckland provide a level of service that most of the legal profession who are their colleagues do not have anything to do with and can have no understanding of. My former colleague Charles Chauvel and I both met with the South Auckland Bar, and we were incredibly impressed with the commitment and the work that people were prepared to do for clients who do not fit the normal corporate lawyer’s waiting room, shall we say.

The examples that they gave us were of clients who could not keep appointments because they were not out of bed before 10 o’clock in the morning. They had clients who could not communicate easily in English because that was not their first language. They talked about clients who were so disoriented and confused and really excluded from wider society because of their drug and alcohol addictions and by the way that they had been disenfranchised from their communities and from their families, and, in many respects, were lost in a city that really did not feel like home. They talked about people who got themselves in trouble very early on, who did not have good lawyers representing their interests, and who ended up on a trajectory that was a never-ending trajectory to prison. They would end up taking on these cases and, as one of my colleagues mentioned, paying the $50, if there was a fee that needed to be paid from the outset, just to get them in the ball park.

The number of times that they told us about the examples of young men—in particular, Māori and Pasifika—who pleaded guilty to offences that they were not guilty of, because they did not know that there was a difference between an action and an intention and who ended up in a place where they were down this track and potentially, under the three-strike legislation, facing very, very serious charges. They talked about the commitment that they made to people whom we really would rather we did not have to deal with. The thing is that this legislation was all about making sure that those lawyers did not get to talk about how it might reduce their incomes or curb the choices they can make when managing cases. I am sorry, but the regulatory impact statement advice does not match the reality of lawyers working in South Auckland.

And then the regulatory impact statement talked about how “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.” Well, actually, that is a risk that has already been realised, and we know that. “The introduction of income and asset thresholds for the criminal means test …”—which we know has been addressed—“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.” I think we must remember these things; that the New Zealand Bill of Rights Act exists with these protections for a reason. It is about access to justice. It is about people who require adequate 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.” Then the regulatory impact statement goes on to say: “Withdrawing legal aid for low income groups is likely to lead to additional costs elsewhere in the justice system. In particular, it may increase the number of self-represented litigants,”—which we have heard are all the way through the Family Court cases—“with flow on costs due to delays, additional assistance required from court staff and the judiciary, and higher numbers of appeals of decisions.”

These were the risks. They were all calculated, they were all assessed, they were all set out in the regulatory impact statement, and the truth is that they are really important risks. There are things that we do not like to say in this country, but I am going to say one of them here and now: if you are Māori you are much more likely to be stopped and questioned; if you are Māori and you are stopped and questioned you are much more likely to be arrested; if you are Māori you are much more likely, if you are arrested, to be charged; if you are Māori you are much more likely to be charged with a much more serious offence or a higher number of offences; if you are Māori you are much more likely to be found guilty; and if you are Māori you are much more likely to end up in prison. We cannot allow that to continue to happen, and I believe that this piece of legislation is part of a package of measures that continues to perpetuate the problem that we have in this country. It does not address the problem; it only perpetuates it, and, unfortunately, it is another wasted opportunity to address the real issues that we must confront as a country if we are really to move on and to address things that are important.

I want to agree entirely with my colleague Denis O’Rourke, who talked about the fact that this bill continues to propose that an application for legal assistance may be turned down if the applicant is in arrears and repaying any part of a previous grant of aid that he or she may have received. I believe that this could be the opportunity, in the Committee stage, in the Chamber, to actually redress that problem—to actually address that problem, to fix what we have in front of us, and to make it good. That would help us to see this bill pass, but we cannot support it in the way that it is drafted.

The report back on the Legal Assistance Amendment Bill from the Justice and Electoral Committee—that is, the majority report from the Government members, predominantly—makes interesting reading. I have never read a majority report in a select committee report where the Government members on a committee have been so willing—indeed, eager—to overturn some of the original provisions of the bill as it was first drafted. To their considerable credit, they have recognised that many of the provisions in that original bill were utterly untenable. They were unacceptable to New Zealanders. The severity of what was proposed in that original drafting was a disgrace, and, as I say, it is a credit to the Government members on the select committee that they, along with the Opposition members, saw that those provisions were untenable. They were unacceptable to New Zealanders, indeed.

Unfortunately, what continues in this bill, which obviously the Greens are opposing, is the unacceptably low income thresholds for eligibility for assistance. The proposition that somebody earning the minimum wage should not be eligible for legal assistance reflects a complete lack of awareness, a disconnect between what are the lifestyles, shall we say, or the lived experience of people making such propositions and those who are actually caught up in the legal process. We know that the minimum wage is significantly less than a living wage in New Zealand. It is not sufficient for somebody to have a decent standard of life, a decent quality of living. It suggests, however, in this bill that that is sufficient for people to afford an appropriate and decent defence if they find themselves in a situation where they need legal representation.

We heard from the Minister of Justice earlier a proposition that this bill will somehow deter those who might be in possession of significant wealth, who might be using family trusts or some other mechanisms to disguise that wealth and thereby become eligible. I would be delighted if the Minister could point us to provisions in this bill that will remedy that situation of a person—I think she referred to a failed finance company director—still sitting on considerable personal wealth but managing to conceal that wealth. I would be delighted to have it shown to me where in this bill that situation would be remedied—where that person would be obliged to pay for their own defence, rather than be able to appeal for legal aid.

I think the low point of the original drafting was the proposition that in order to be eligible for legal aid, a person’s so-called capital goods would be valued—people’s clothing, their household goods. For me, my personal bête noire is the notion that tools of trade should have to come into that calculation. The proposition that a person should be obliged to sell their tools of trade, the means by which they earn their living, in order to become eligible for legal aid is simply a nonsense. It is abhorrent, and it is to the credit of the committee that that at least has been thrown out of this legislation.

The point is made in the Green-Labour minority report that in pursuit of the cost savings of this legal aid scheme, there is scant regard for the catastrophic effect on low-income New Zealanders and their ability to access the justice system, and the extent to which these propositions can potentially be seen to contravene the New Zealand Bill of Rights Act has already been observed and noted.

It is not only low-income people who need to have concerns about this legislation. Middle New Zealand—people who are earning what might be deemed a living income but who, for whatever reasons, are not well-to-do people. There are a significant number of middle-income New Zealanders who would struggle to afford decent representation in a court of law, and this legislation does nothing to recognise their situation. It does nothing to alleviate or in any way deal with that situation that they could find themselves in.

The proposition that a person can be denied legal assistance if they have not yet repaid obligations or debts from some former use of legal aid in itself seems not unreasonable, except that it overlooks a whole bunch of situations an individual might find themselves in where they are simply not able to afford to repay that obligation at the point at which it is made. I think some of the conditions that appear in Supplementary Order Paper 134 are interesting, particularly, for me, the proposition that a deduction from a person’s income, from their salary, wages, or whatever it might be, can occur.

The proposition is that a person is no longer entitled to legal aid at the point at which a reminder notice is sent to that person. In new section 41B(1), as proposed in Supplementary Order Paper 134, “This section”—in terms of the deduction of overdue amounts—“applies whenever the Commissioner has reminded an aided person in writing of the person’s obligation to pay an overdue amount …”. One thing we know about low-income people is that they tend to be very transient. They tend not to be in one place for very long. It is entirely reasonable to assume that people may not be aware of their obligation. Somebody who does not see a reminder notice may nevertheless suddenly discover that their income is having significant deductions taken from it.

We are told further on in the Supplementary Order Paper—new section 41H, “Protected earnings”, so-called—that 60 percent of a person’s net income may be protected. Turn that round. A person could lose 40 percent of their net income. It could be deducted in order to repay this so-called debt from some prior use of legal assistance. For a person on a low income, or even a moderate income, that could be disastrous in terms of taking away from them the ability to pay basic living costs—their rent, their power bill, their grocery bill. Deducting 40 percent of income from a low-income person, or even a moderate-income person, could just lead to the complete financial collapse of a household. Whose interests are then served when that person is no longer able to provide the basic necessities for themselves and for the household they may well be supporting? That is an extraordinarily high provision, a very high bar, to enable the commissioner to take 40 percent of a person’s net income.

I will not dwell on it here, but we have had some significant submissions to this bill, of course, in the process of the select committee hearings. The Criminal Bar Association pointed to the fact that, in its view, the bill as drafted systematically deconstructs safety nets available to those vulnerable people charged with criminal offences. It refers to the bill’s improper balance between access to justice and the cost of a legal aid system, which will be at the cost of justice in a large number of cases.

These are not trivial objections, from a group of people who are right at the sharp edge. On a day-to-day basis their members see the reality, as Ms Dalziel described, of places like the Manukau court, the west Auckland courts, and so on, where it is not a matter of wealthy people concealing their wealth. It is a situation of people completely adrift in a system of which they have very little understanding, who need representation, and who will not be able to afford it.

We know in respect of self-litigants—and again this came through in a number of the submissions—that the denial of legal aid will lead to more self-litigation, so the penny saved will result in a pound more cost further down the track. Self-litigation slows the processes of courts. Judges become, by default, purveyors of legal advice. Court staff will be obliged or asked consistently and routinely to provide legal advice, which is actually not what they are there to do. Self-litigation is recommended against at various points on the Ministry of Justice’s own website. The failures, the difficulties, and the dangers to the accused person, the costs to the courts, and the costs in terms of time to the judge and the whole judicial process are clearly out of step and have not been taken account of in this. Inevitably we will see more people try to represent themselves who do not have the skills, the information, and the wherewithal to do so. So any money saved by this quite Draconian denial of access to legal aid will very quickly be hoovered up by other costs that are imposed further down the track.

Unfortunately, that is a phenomenon we have seen all too much of recently. In the Government’s absolute determination to get this elusive Budget surplus it is looking for line-by-line cost reductions without looking at the bigger picture. When the big picture is the justice sector, that is untenable. It is not just a matter of financial impropriety. This is talking about absolute basic rights, basic access to the justice system. We ought not to be denying our citizens that.

It is hardly surprising, really, that we are considering a bill, the Legal Assistance Amendment Bill, that involves yet again another denial of due process, potentially another denial of access to justice, because this Government—and, indeed, this Minister of Justice—is establishing a very strong track record on exactly that issue. We most recently had the New Zealand Public Health and Disability Amendment Act (No 2), which was at least explicit about denying access to the courts for a group of people who were desperately in need of it. Now we have legislation that deals with the process end of trying to get access to justice, and it starts putting up the barriers and the humps to get in the way.

The Minister may well consider that she has done a good job at watering down some of the worst aspects of the legislation as it was introduced, but there are still barriers and there are still problems with this legislation. I think it is instructive to note that since the present legal aid regime was commenced—was put in place—the number not only of lawyers doing legal aid since the beginning of last year but also of law firms now allowing their lawyers, their solicitors, and their partners to do legal aid has been dropping consistently and dramatically.

You hear it from lawyers too. Law partners now say that whereas once upon a time a lawyer with 2 or 3 years’ post-qualification experience could be put on to some legal aid cases—it builds up their experience, gets them a bit of court access and court time—they no longer do it, because with the fixed-fee regime and with the administrative process that it now entails it is getting harder and, frankly, less viable for law firms to do it. Lawyers, particularly those practising on their own account, are now saying it is just too much, and they are getting out of it. It is interesting to note now that the Ministry of Justice is having to put together a programme specifically to attract senior counsel back into doing legal aid work because the present regime is not working. Well, this bill is not going to help. If anything, it is going to make it worse.

We should not, when we are thinking about those who are dependent on legal aid, overlook just what sort of a barrier $50 is in terms of making an application or contributing to those initial costs or legal costs that are required. For the impecunious, the destitute, and the poor, those who find themselves facing the full force of the police and the coercive arm of the State and having to defend themselves and most importantly their liberties against it, actually having access to legal aid is very important. And if you do not have $50, you do not have $50.

Whereas before, a lawyer who was making the application representing their client could in reality absorb that $50 in terms of the charge they pass on to the Ministry of Justice, they cannot do that under the fixed-fee regime that now applies to legal aid. Unless there is a change there—and who knows what will happen there—it is simply going to get harder for those who are dependent on legal aid to stump up that $50. They will be dependent on the generosity of legal counsel, who are themselves making the applications for legal aid in order to represent that client, to either pay it themselves or in effect accept even less than the specified fees regime that is in place at the moment. That is the insidious nature of just that part of this bill. That is why this bill continues to create a barrier that we can all foresee will have very real effects for those who would otherwise be dependent upon it.

Then there is the arrears issue, this insidious notion when you are needing legal assistance, particularly if you are facing a criminal charge. We claim that in our system, our constitution, where the State can come after people with prosecutions and put their liberty at risk, we say: “Yes, you can get access to court and get your case heard.” To put in place a situation where a previous grant of legal aid may give rise to a debt that then, if it is unpaid, may count against a future legal aid grant goes against a fundamental constitutional principle that when the State is coming after you and putting your liberty at risk, you must be allowed access to the court to be heard. And it is not only access to the court, but also adequate representation—representation of a quality and nature that befits the charge that the person is facing. That particular provision, innocuous as it may seem on paper and as the Minister may make it out, we can foresee is going to also create a barrier to access to legal representation at a time when a person who is dependent on legal aid is going to need it most. That is yet another reason why we will be opposing this bill.

We have already seen in the consideration to date of the Family Court Proceedings Reform Bill—and it is not complete yet—just how difficult it is going to get for people in the civil jurisdiction to get access to legal aid. In that particular case, it is going to get harder for parents going through a family dispute, mainly a separation, to get access to legal aid, and certainly legal representation, at a time when they most need it, which is when their particular situation and the legal ramifications of it are being talked about. Also, disturbingly, counsel for the child are now going to find it much harder to get State support to play their important role, because that role is more or less legislated out under that particular bill. It all ties in with what this bill is trying to do, which is to once again minimise and reduce the cost of legal aid to the State.

The Minister makes very fine statements about the importance of legal aid. Legal aid is a big cost—about 50 percent of the cost—of the Justice vote. But we have that in a civilised country like ours because it is important. It is important for people to have access to adequate representation when they are in court. When we think about legal aid, it is an area in which we should proceed with caution, with care, and with respect for that constitutional right of people to be represented in Her Majesty’s courts. When issues of rights are being determined and when issues of liberty are at stake, then there is no cost too great to ensure that a person’s rights are fully observed and respected, that they can get an audience, and that a judge can make a considered decision on the basis of good quality representation.

There are some respects in which if we do not meet the proper cost of legal aid, the proper cost of representation of people when they are before the courts, that cost will be picked up elsewhere. It will be picked up, as my colleague Lianne Dalziel referred to, as unrepresented people making guilty pleas that, with proper consideration and access to legal aid, they would not otherwise make. That may have implications then for the application of other legislation, like the three-strikes legislation, that may see people serving extensive sentences—sentences of up to 14 years—for what might otherwise be considered to be trivial acts of street thuggery or street burglary. We take this seriously. Notwithstanding the positive changes and the general direction that this bill has taken, we still see in the provisions in this part of the bill some real problems and some real concerns about access to justice and the observance of people’s rights.

I move, That the question be now put.

It is a privilege to rise to speak on the Legal Assistance Amendment Bill. I have listened to all of the contributions made so far on this bill, and I have to say that there have been some extremely interesting and very thoughtful contributions made by all of the speakers tonight on what was the Legal Assistance (Sustainability) Amendment Bill, which is, as others have noted, now being renamed the Legal Assistance Amendment Bill.

I guess I will start by saying that, despite changes—and a number of people have commented that, if you like, this is being clawed back to something a little better—it still does not mean that this is a bill we can support. Labour does oppose this bill. We oppose it because its net effect is still a denial of access to justice. As others have put more eloquently than I will be able to, I am sure, representation is fundamental to access to justice in our system. Having access to legal representation is vital. So many people are not able to represent themselves and are, for a range of reasons, perhaps even unaware of their own rights. So having decent representation is fundamental, especially when the consequences are potentially very significant. Whether they be financial penalties or loss of liberty, the fact of the matter is that people can suffer very severe consequences, and they have the right to have access to justice and decent representation.

We oppose this bill because it still places a number of limitations on New Zealanders’ rights to access to justice. It is part of a concern that we have about the general direction of the Government in relation to the justice system. In relation to the bill, as originally introduced, certainly the contributions from a variety of people on it have been very interesting in realising the full extent of what was proposed and how serious those changes were. My colleague the Hon Lianne Dalziel does make the comment that the Minister of Justice, rather than members of the Justice and Electoral Committee from the other side of the Chamber, was probably most likely to be responsible for the improvements that were made. There is a significant number—pages, in fact—of changes made under Supplementary Order Paper 134. But despite that—despite that—there are still a number of significant areas that we are concerned about, and if we were to sum them up, they are in four main areas.

Firstly, the application for legal assistance may be turned down if the applicant is in arrears for repaying any part of a previous grant of aid that he or she may have received. I think it is important that we look at this in the context that New Zealanders are currently living in, which is that it is extremely difficult for many New Zealanders to make ends meet, that, actually, the budget does not stack up for people, with the income they have and the expenses they have, and that, frankly, it is quite likely that people will be in situations of not being able to repay arrears because they are trying to live. If you talk to budgeting services, they will tell you just how hard people are struggling. That is the first of the four main concerns. Also still of concern are, secondly, the reintroduction of a user charge, although the figure has now been reduced; thirdly, the provision that interest is to be charged on arrears of legal aid; and, fourthly, the provisions having retrospective effect. Those are the four main areas that we are concerned about.

I would just like to say that the Minister talked about, and somebody else has mentioned, people being concerned about seeing white-collar criminals—you know, the finance company rip-off merchants—using legal aid, but the fact of the matter is that it is not they who, overwhelmingly, use the legal aid system.

I want to also refer to the regulatory impact statement. The Hon Lianne Dalziel referred to it earlier, but I want to particularly talk about how it is not white-collar criminals—it is not middle-aged white men—who are going to be hurt by restrictions and the denial of access to justice. Let me just reread those two sentences: “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.” So even with the changes, it will still disadvantage those people.

I move, That the question be now put.