Legal Assistance Amendment Bill

The House is in Committee. Kia ora tātou, nō reira e te Whare, e ngā iwi, e ngā reo, e ngā hau e whā. Tēnā koutou, tēnā koutou, tēnā koutou katoa. Good afternoon, honourable members. We are in Committee—

💬 Hon Trevor Mallard: Following the standards of the Speaker.

The CHAIRPERSON (H V Ross Robertson): Well, thank you, Mr Mallard. We are in Committee for further consideration of the Legal Assistance Amendment Bill; for consideration of the State Sector and Public Finance Reform Bill, the Plumbers, Gasfitters, and Drainlayers Amendment Bill, and the Taxation (Livestock Valuation, Assets Expenditure, and Remedial Matters) Bill; for further consideration of the Airports (Cost Recovery for Processing of International Travellers) Bill; and for consideration of the Administration of Community Sentences and Orders Bill, the Reserve Bank of New Zealand (Covered Bonds) Amendment Bill, and the Medicines Amendment Bill.

Members, we move first to the Legal Assistance Amendment Bill. When the Committee was last considering this bill, we had reached Part 2. It is my understanding that the Hon Lianne Dalziel had the call, and she has 4 minutes 55 seconds remaining if she so wishes. We do certainly have a significant number of bills here to consider, Committee—

💬 Grant Robertson: I raise a point of order, Mr Chairperson. I just want to clarify whether we had begun the debate on Part 2 of the bill at the last point at which this was done, or were we just ending Part 1? I just want to get a clarification of that matter. I am just going to continue talking for a little moment longer. Yes, so were we on Part 1 or Part 2?

The CHAIRPERSON (H V Ross Robertson): We were, Mr Robertson. I have it in front of me that we have here—and I have it written down here—Part 2 read. The honourable member Lianne Dalziel was speaking at 2150 and 2155, and therefore she has 4 minutes and 55 seconds remaining if she so wishes. The question is that Part 2 stand part. I call the Hon Lianne Dalziel.

Because of the time that has elapsed since we last spoke on this bill, I am going to start again. That is actually quite useful because I cannot remember what I have already said, so it is probably a good thing to start again.

Part 2 actually deals with amendments to other Acts. Quite often when you get to the amendments to other Acts, you are really just seriously looking at amendments subsequent to what is dealt with in the substantive part of the bill that we have already addressed. However, there are a number of areas that I think it is worth traversing and that in particular relate to the Care of Children Act 2004. This is where a lot of the controversy has arisen in terms of some of the changes that have been brought into place. It is not clear in terms of the legislation exactly what all of the implications of some of these amendments might in fact be. I seem to recall from the hearings that we had at the Justice and Electoral Committee that there was a lot of discussion about whether parties would be required to reimburse the costs associated with counsel for the child. I am looking to the Opposition spokesperson on justice, Andrew Little, for some assistance here. I think that there was a lot of debate around contribution to the costs for a lawyer for the child potentially able to be ordered, which would be split between the two parents.

💬 Andrew Little: They could be different proportions.

They could be in different proportions. That was of some concern, I think, because there was certainly a fear that any payments that were required to be made in relation to the legal aid coverage or the payments for lawyer acting for child could actually make people feel quite uncomfortable about their role in the hearing itself. I must say that there is a degree of disquiet around this particular change so that each party must pay an equal share of the prescribed proportions. I know that we had a discussion on another bill, the Family Court Proceedings Reform Bill—which is perhaps not relevant to having a conversation about the Legal Assistance Amendment Bill—and there was a deep concern about it because, of course, some may qualify for legal aid and others may not. So you have got one of the parents up for a substantial proportion of the cost, and the other parent up for a funded share. That, I think, created again some sense of disquiet about whether that would make the dealings between the parties more or less comfortable—and probably more uncomfortable—as a result. So there are some significant issues in respect of that.

There are also issues around enforcement of orders to refund fees and expenses of court-appointed lawyers. There is a whole process to be gone through in the legislation to order a refund as a debt due to the Crown by that party, and being enforceable in a District Court or the High Court, as the case may require. Again, this is forcing people into a situation—well, in relation to the enforcement of a debt—of seeing themselves in a position where perhaps they are not seeing that their contribution is necessarily their legal responsibility.

But it all really comes back to that same issue that we were debating before in the other legislation, and that is that essentially when you have got a Government that thinks that family disputes between couples are private matters, and therefore not eligible for any form of State assistance, and the only interest the Government has is in helping parents agree to the care of the children arrangements, it does seem to be a real mismatch because, of course, the whole focus is actually on reducing costs. This makes absolute sense when you tie it in with the Family Court Proceedings Reform Bill, but it does not make sense when you are looking at what might actually be in the best interests of children.

When people are facing these enormous costs, what they end up doing is entering into agreements that may in fact not be in the best interests of their child. I will give you one example that came up in one of the hearings that we had, where a couple had agreed that they were going to share care. They were going to share the day-to-day arrangements for the care of their child. As a result of them reaching this agreement, which was going to be 1 week about—so 1 week for one parent and 1 week for the other. The child—remind me again, our spokesperson on justice. I think the child was 18 months old—

💬 Andrew Little: 6 months.

6 months old. The parents thought they were doing the right thing. They—

💬 Scott Simpson: The Family Court bill.

Yes, I know. The point that I am making is that it is relevant when it comes to cost-sharing arrangements because a lot of people enter into these arrangements because of the costs associated with them. There are three sets of costs that are now in play. One is the cost of now going to a family dispute resolution, which, of course, is the other bill. The other is the cost of the child support because eligibility for child support is dependent on the number of days, or the number of hours, essentially, for the primary caregiver. That has created an incentive for people to look for ways to share the arrangements, so that basically it is like an insurance knock-for-knock arrangement, where you can cancel each other out. But then, on other occasions, they are not able to achieve that, so none of the costs that the non-custodial parent, or the one providing day-to-day care—that parent is not allowed to take into account the cost of holding an extra bedroom open, which is an issue for people, especially who are renting. They are not allowed to take into account the extra costs for food and entertainment and things like that for that time. So they continue to pay their child support every week. The point that I am making is that all of these issues come into the decision-making process, and have nothing to do with the best interests of the children.

The final one that we have decided to add to the whole mix is that you can pay for counsel for child as well. Well, we have already heard from our debate on the other legislation that there are some limitations around that. That lawyer acting for the child—in the best interests of the child—may, in fact, provide the only legal advice that anyone gets at any point in time, and it is at the point that they get to family dispute resolution. Now we are going to send them the bill as well—to both parties.

I actually think that people should take a serious, serious look at what this Parliament does from time to time. We should join the dots. We have had an issue down in Christchurch around building consents where we have got a silo mentality within the council and we have got a silo mentality outside the council in all the different Government departments. Even with the Canterbury Earthquake Recovery Authority in play there are still all these silos all doing their own thing and not joining the dots. Well, for goodness’ sake, when we are talking about the best interests of children, should we not be joining the dots? Is that not probably the most important thing that we could do for those little dots?

I think that it is irresponsible to go through a process of decision making on these separate issues in silos and not see that they have a huge impact on children. That is why the word “sustainability” went out of the title of this bill; it is now the Legal Assistance Amendment Bill. The word “sustainability” has gone because actually it is not a sustainable proposition. I know that the Government took it out because it did not really want people to focus on the fact that it was only about the money, but actually it has gone for another good reason, and that is that this is not a sustainable approach. If we really care about the best interests of children and ensure that they are at the heart of all decision making, then we would not be doing child support separately from legal assistance, and separately from Family Court proceedings. I actually know that there are a number of people who agree with that point of view. I know that there are many, actually, on the other side of the Chamber who secretly agree with that point of view too and would like to see something done about it.

The other part of this particular bill talks about the costs of court-appointed barristers or solicitors. When the court finally reaches the nightmare situation of having two self-represented litigants in front of them, who are both going hammer and tongs at each other, it finally brings in a court-appointed barrister or solicitor to help sort the mess out, which is going to happen much more often as a result of the previous legislation that we have been dealing with. We are going to end up in the situation where the parties are going to be required to pay for that barrister or solicitor as well, even though they were appointed to represent the interests of the court. I think that there has been a fundamental flaw in the thinking here. Early legal advice is what actually helps resolve disputes.

I take a call just to respond to some of the points raised by the Hon Lianne Dalziel. Obviously she has, with her experience, recognised that there have been some issues that need to be addressed that have been spoken about amongst the family legal fraternity. It is important to point out that in the consideration of this Legal Assistance Amendment Bill, and further on in the implementation of it, there will be some regulations that will, for instance, prescribe the portion of lawyer-child costs that parties are required to pay as two-thirds. But by default this cost will be split in equal shares between the parties. It is also important to note that, however, the court may substitute a different share for a party if satisfied that in the circumstances of the case it would be inappropriate to require each party to pay an equal share. The substituted share may not exceed the prescribed portion, so no party may be required to pay more than two-thirds of the cost of the lawyer.

There obviously needs to be built into this some safeguards—and the safeguards are all around the paramount principle of the Care of Children Act 2004 under which most orders are made—that the welfare and best interests of the child are paramount. Therefore, any decisions about orders of costs must be taken with that principle in mind. The court may decline to make an order of costs if satisfied that it would cause serious hardship to either party or to a dependent child of the party, and the court may adjust the default equal share of costs if it is considered inappropriate.

It is also to be noted, for instance, that even as part of the Family Court review, which the previous speaker mentioned, there are a number of alterations that have been made there in respect of, for instance, allowing legal aid to be granted for counsel to be provided in the preparation of parents who will be representing themselves, because it recognised that there was “inequity of arms” if, for instance, one party with a substantial income was able to go and get coaching, if you like, from a legal counsel, and would be better prepared. So it was important, in the interests of justice, to allow that to happen under that particular bill, and I think it is important to know that legal aid is moving to recognise that there have been these issues.

My final point to make is in response to the courts’ ability to alter or to waive the imposition of the costs of counsel for the child. In the institution of fees and filing fees in the Family Court, there was a lot of noise about the fact that these had never been in place before. The point was made that waivers would be granted or would be able to be granted in circumstances. In actual fact, 70 percent of the matters appearing before the Family Court now receive a waiver. Any argument that says the Ministry of Justice would be unlikely to give waivers is actually not an issue. It has not proven to be an issue under that particular regime, and no one would expect it to be in the future.

I rise to make a further contribution on the Legal Assistance Amendment Bill, in the very important Committee stage. Having listened to the contribution of the Associate Minister of Justice, Mr Borrows, I simply reiterate the concern that the Labour Party has about the regime that is now to be set up for the recovery of a proportion of the costs associated with the appointment of counsel for the child.

I am not reassured by the Minister’s attempt at reassurance just now, and I refer him specifically to new section 131A of the Care of Children Act, inserted by clause 27, and to the definition of “serious hardship”, remembering that under the regime that the bill proposes there is, first of all, a presumption that the costs or part of the costs of counsel for the child will be levied across the parties. There is scope to have the share between the parties different across each party—I understand that. But the basis on which one party or both might not be levied at all is on the grounds of serious hardship.

Serious hardship, as defined in new section 131A(6) “(a) includes significant financial difficulties that arise because of—(i) the party’s inability to meet”—and this is the phrase I want to focus on—“minimum living expenses according to normal community standards;”. With all due respect to the Minister, that language is somewhat vague. What is a judge to make of “minimum living expenses” and what is a judge to make of “normal community standards”, understanding that that sort of language sounds like a very shifting sort of standard: the shifting sands of minimum living expenses, and the shifting sands of normal community standards?

It looks to me like this provision, in its current form, is more likely to cause more confusion and anxiety than to give any greater assurance. Perhaps the Minister could answer the question about what a judge is to make of that sort of language when it comes to this sort of cost recovery. I know it appears in the previous part of the bill, but it relates also to the other powers of attachment that will now apply when it comes to cost recovery, including for cost recovery of counsel for the child. It is also related to the part that allows not only attachment orders but that attachment orders can be up to 40 percent of the net pay of a grantee of legal aid, or of someone who has had the benefit of counsel for the child or whose child has been represented by counsel for the child. Up to 40 percent of net pay can be the subject of an attachment order to meet these costs that can now be levied.

There is nothing in the bill, unless the Minister can point it out to us, that suggests there is any potential for alleviation—for a judge to avoid levying a party or both parties who have had the benefit of counsel for the child in their care of the children proceeding—other than the general discretion of the court on the very vague “serious hardship” condition. This still remains highly problematic for us. This does not give us any reassurance that this bill will not lead to some people facing considerable hardship and considerable debt. Once the amount is levied it will be subject to interest and it will be subject to recovery action, not the least of which would be an attachment order that could see up to 40 percent of a person’s net pay being extracted from them before their pay lands in their bank account.

That has the potential to cause significant problems for people, and to really create a great sense of fear in people who are in the position, often not by choice, where they are utilising, in this case, family proceedings where they are subject to this type of levying. That makes the legal aid scheme not a scheme of fairness, not one of ensuring access to justice, but a scheme that will become one of great fear. People will fear that they may be plunged into permanent or long-term hardship or poverty or destitution as a consequence. That is not good.

As a matter of public confidence, what we need is a legal aid scheme that does what it is intended to do. We need a scheme that provides legal assistance for those who simply do not have the means to meet the cost—one that provides legal assistance to those who are in a position where they must pay legal costs, the costs of representation and advocacy, in a situation where they would prefer not to, or in a situation that they have not necessarily chosen. These sorts of clauses are enough to suggest that a legal aid scheme that is built on these sorts of provisions will not be a legal aid scheme worthy of the name.

I call on the Minister in the chair, the Associate Minister of Justice, to give some clarity about just exactly what the Government has in mind when it comes to recovery of costs for these matters, for the lawyer for the child, under this part, and what it means in terms of the test for serious hardship for a party to be afforded their minimum living expenses, according to normal community standards. That is not meaningful to me, and any black-letter lawyer looking at that is not going to be reassured that this is going to provide any assurance at all. That remains a very important and very serious question in terms of this very important piece of legislation.

Given the changes that have already happened, there are going to be costs and expenses that lawyers are no longer going to be willing to pick up, whether it is the $50 user charge or other charges that may be imposed. Lawyers providing this sort of work under legal aid are simply not going to be able, under the current regime, to pick up those costs and they will fall on the parties. These are already impecunious parties—that is why they are seeking legal aid and apply for legal aid—and to then be subject to a further test of serious hardship does not look like good justice to me. Let us hear from the Minister on those points.

Taloha ni and tēnā koe, Mr Chair. It is a pleasure to take a call on Part 2 of the Legal Assistance Amendment Bill. This is an issue that has played quite largely in my electorate of Mana. There was a quite well-attended public meeting around the issue of access to legal aid, organised by someone who I think knows the Minister in the chair, the Associate Minister of Justice, quite well and who has, I think, lobbied him on many occasions around her concerns with many of the provisions in this bill.

Pointing directly to Part 2, I want to also head towards clause 27, I think it is, as I think my colleague Andrew Little did. This is the insertion of some new sections, sections 131A to 131C, around the advocacy for children. One submission during the select committee process that I did want to highlight was from the Children’s Commissioner, Dr Russell Wills, where he had serious concerns about where this bill was heading in terms of looking after children. In point 21 of the submission that Dr Wills made to this bill, he said: “In addition, I note that the Bill makes no reference to the best interests of the child in the explanatory note to the Bill, despite the fact that it will clearly impact upon children and young people who are involved in Family or Youth Court proceedings.” He goes on to say that “These children and young people are among the most vulnerable in our community and it is therefore imperative that their interests are given primary consideration.”

I think that is very interesting—I think that is probably one way to put it. But it is quite a damning statement from the Children’s Commissioner, the fact that this bill has not really taken the best interests of children to heart, both within the explanatory note and also within the provisions of this bill. That was in essence the substance of the meeting that was held in Porirua. There was a lot of concern from the legal community, from a lot of agencies who deal with children in this situation, about the ability to advocate properly for children in these situations where you have families who are separating, especially because there is a lot of legal assistance offered in this situation. A lot of the families that these lawyers are acting for do find themselves in serious hardship.

Just as Andrew Little did, I want to point to, I think new section 131A(6), inserted by clause 27 of this bill, and ask whether the Minister in the chair could try to clarify for us the definition of “serious hardship” as it is in the bill as it stands at the moment. As it stands, section 131A(6) says that “serious hardship” in relation to a party or a dependent child of that party: “(a) includes significant financial difficulties that arise because of—(i) the party’s inability to meet minimum living expenses according to normal community standards;”.

For any judge to try to make sense of that, I think, would be difficult. If that judge were to be sitting in the Porirua District Court, that would be difficult because I would say that most of the families appearing there would meet that test and would therefore be able to get some kind of compensation or get legal assistance, but some others may not, depending on where they were at the time or which court they were being seen in. Could I ask the Minister in the chair whether he could clarify that for us; that request comes from me and also from Andrew Little.

I did want to make the point, just before my 5 minutes is up, that we do not believe that the best interests of the children are at heart here. We can look at the change in the title—and we will get plenty of opportunity to debate that. It was originally the Legal Assistance (Sustainability) Amendment Bill; the title has been changed. But we believe that the real driver of this bill is in its original title, and that is to make, in the eyes of the Government, legal assistance much more sustainable, which in “real speak” is to cut costs to the detriment of justice and access to justice and, unfortunately, in this case to the detriment of the ability of families to get access to justice for their children in these situations.

That was certainly made clear by the Children’s Commissioner, and I just want to read that quote once more to make the point. In that submission the Children’s Commissioner said that “the Bill makes no reference to the best interests of the child in the explanatory note to the Bill, despite the fact that it will clearly impact upon children and young people who are involved in Family or Youth Court ...”. That also goes back to the access to justice issue, which I know we have already debated in Part 1, but this is very much related to it, around the fee that some families would have to pay to access legal aid. I understand, and I may stand corrected, that it was originally $100, but I think the select committee process has brought it down to a fee of $50. But I know, certainly from the people in my area, that they have been saying that if they have someone who comes along, arrives at their reception area, whom they have dealt with in the past—they have a history, they have a relationship with that family—they are very reluctant to turn them away just because they cannot afford to perhaps pay $100, as it originally was, or $50 as it stands now. So what they will do is more than likely accept the case because they know that the family does have a very important case to be heard and, as I said, there may be children involved.

There are three options that could potentially happen in that situation. The provider will simply just pay that fee itself and wear the costs; all the clients will end up wearing the costs over that financial period or that financial year, if they just aggregate all those fees; or, in the end, the legal provider will just end up slapping another $50, or what could have been potentially $100, on the bill that the Crown gets. We do not think that is necessarily the cleverest situation to be in, especially when it is asking a lot of legal firms, many of which are considering getting out of the legal aid arena, to wear the additional costs of getting over the first hurdle for many of these families in order for them to access legal aid.

So that was one of the concerns that were certainly raised in the Justice and Electoral Committee by a number of submitters and, again, it was raised by one very strident legal provider in my area, who, again, knows the Minister in the chair quite well, and who, I am sure, has had a conversation with him about it.

We are concerned around the ability of this bill to look after the best needs of the children—that has been made pretty clear in the quote from the Children’s Commissioner that I have used twice—and the ability of families to access legal aid in that situation in order to get the best advocacy for children. Then, on the other side of things, we are also very concerned about the access and, I guess, some of the barriers that have been put up under this bill to access to justice for a lot of families.

Just before I finish off, I want also to commend the select committee. As I have said in a previous contribution on this bill, I think the committee has taken what was an awful bill and made it just bad, which is an improvement, because I think the committee has taken into consideration some of the submissions that it heard through the process. I guess members on this side of the Chamber have tried to make some changes, and there has been some movement from the Government to support changes around, first of all, reducing the fee from $100 to $50. That is an improvement, but it is still, we think, a hindrance to access to justice. I do not want to be too harsh on that select committee, because it has made some changes that make the bill better, but we still do not think it is a very good bill in terms of making the legal aid arena more efficient and, I guess, a little bit more sustainable, and also in terms of balancing that up against access to justice and fairness, especially for those vulnerable families.

I will leave it there, and hopefully the Minister in the chair can answer some of those questions, especially around section 131A, in clause 27, in terms of serious hardship—if he could try to explain to the Committee what the spirit of that clause means, where it says “the party’s inability to meet minimum living expenses according to normal community standards;”. If the Minister in the chair could elaborate on that for us, it would be quite useful for this side of the Chamber.

I just want to address three points that have been raised by the previous two speakers, and put their minds at rest in respect of those issues. In respect of clause 27, the point was made that the Children’s Commissioner had made a submission that the best interests of children were not mentioned in the Legal Assistance Amendment Bill. The fact is that clause 27 amends the Care of Children Act 2004, and the paramount principle of that Act is what is in the best interests of the child. When a decision is being made by a judge under these clauses that go to amend the Care of Children Act 2004, he must consider what is in the best interests of the child. So just because it is not mentioned in this bill, it does not take anything away from the fact that when the Care of Children Act is amended by this bill, the judge will have to make those considerations.

Another question that was raised by the earlier speaker Mr Little was around how the costs of child contributions were going to be recovered by the court. I had, I think, quite extensively covered that in my previous speech, which said that the regulations that will accompany the bill make provision for the judge to be able to recover no more than two-thirds of the cost of counsel for the child. The judge can apportion that, by default, fifty-fifty, but has the opportunity to move that or to remove it completely if he believes that there is hardship or that it is not in the best interests of the child to try to recover those costs.

So then the question was around what “serious hardship” means and, as this is not defined within the bill, how a court could possibly understand what “serious hardship” means. The term “serious hardship” is a term that is used in other legislation, and so is interpreted now by judges in the course of their deliberations in respect of these other Acts. Two examples are the Income Tax Act and the Tax Administration Act. This term has been defined by case law—by the common law—so judges seeking to interpret the term “serious hardship” have precedents that they can fall back on.

I guess it is important to note in global comments in respect of this particular bill that the cost of legal aid had blown out by 55 percent over a 4-year period. That is something that any Government has to address. The previous Government, which had the means and the resources to be able to do more in this area, did a couple of unusual things. One of them was that it spent more money in this area by widening the boundaries for which legal aid could be granted. But what it did not do at all was take up the legal aid rates that legal aid lawyers were paid. So what we found when we came into Government was that there were a number of firms providing legal aid that were getting out, as the previous member indicated. They were getting out because those levels of remuneration were not there.

To be fair, that member’s Government did nothing about it in the 9 years that it was there. I accept that what the National Government has done now is to restrict access to legal aid in some areas, but at the same time it has extended it in others. Where an initial premise of restriction or constraint has been promoted in the bill and there have been submissions made against those constraints, we have responded by way of folding those back. The previous speaker mentioned that too, in respect of the filing fee moving from $100 back to $50.

I can understand that there will be members of the Committee who will not be voting for this legislation. I understand that. I hope they do reconsider that if that is their current standpoint, bearing in mind that even they accept—in rather derisory terms—that some improvements have been made. I believe that it is a bill that will ensure ongoing sustainability of legal aid. I do not expect that in a sector that is bound up in convention and tradition we are going to have huge accolades for changing anything until those changes have been proved to be worth their salt. Thank you.

I want to pick up on a couple of points that the Minister in the chair, Chester Borrows, has just made. He repeats the justification for a bill that in the end could not be justified. That is why, when we look at Part 2 of the Legal Assistance Amendment Bill, as in Part 1, page after page of the bill is struck out. Even “(Sustainability)” in the title is struck out. Can I suggest that the reason that the word “sustainability” has been struck out is that in relation to what the National Government was proposing in terms of fairness, in terms of decency, and in terms of having a justice system that actually deserves that title, there was not anything that was sustainable in the original bill, if you judge it on the basis of those particular principles.

The Minister talks about the blowout, as he terms it, in legal aid. What the Minister does not tell the Committee is that before legal aid was increased under the last Government, it had been static for 20 years. Legal aid had not been increased in 20 years, and, of course, it was going to cost more when you decided that, actually, if the principle of legal aid—affording justice to all—is to be realised, then you cannot make the threshold for being eligible for legal aid as low as it is. The threshold, it will surprise listeners to hear, for a single person getting legal aid is an income of $22,000 a year. That is less than what you get on the minimum wage. So, effectively, what we had, and what this Government was seeking to worsen, was a situation where if you are at the lowest level of income in society, if you are on a benefit, you could get legal aid, but if you are out there working, working every hour that you are able to, to try to get things together for your family, you would be rendered ineligible for legal aid because the threshold was—[Interruption]—“you” meaning the person who is receiving it, Mr Chairman—that they were not so poverty-stricken that they would get it.

What this Government seems to be saying in this part of the bill, and in the bill as a whole, is that if you are absolutely poverty-stricken, then you might get some assistance, but the Government ignores the fact that a great many people—ordinary, hard-working New Zealanders trying to get justice through the system—will get no assistance, because the threshold levels are so low. You will be denied the right to justice. And there are tens of thousands of New Zealanders who come into that category. So when the Minister talks about, as he did, a blowout of legal aid, what he was effectively talking about was an extension of legal aid so that people who could not reasonably be expected to pay for the cost of justice themselves would not be denied justice.

One of the basic principles by which you judge any society is that access to justice should not be based on the amount of money you earn. What this section of the bill shows more than anything is that Ministers on more than a quarter of a million dollars a year do not understand what it is like for people on $30,000, $40,000, or $50,000 a year, when they are confronted with the huge cost of legal bills. They cannot afford it, they do not get represented, and justice does not get done. Surely—surely—there would be bipartisan agreement in this House that a priority must be that nobody is denied justice by virtue of their inability to pay, but the tragic reality of the system in New Zealand, worsened by this bill, is that, time and again, people are denied access to justice. Justice is for the rich. Justice is for those who can afford the Queen’s Counsel—and those who can afford the Queen’s Counsel end up getting away with things that they probably should not—and those people at the bottom who are struggling to see justice done are denied justice by this Government. I refuse to believe that this is about the fact that the Government cannot afford to pay for it. The Government could afford to give John Key a couple of hundred thousand dollars a year in tax cuts. Surely, it can afford to ensure justice for people. In this clause of the bill, surely it can afford to give justice to the child who might otherwise be unrepresented—the child, the most vulnerable person in the system. If there is a need for counsel for the child, that means that their life has been pretty miserable, they have had a hard go of it, and they do deserve justice. But this bill constantly, in every clause that was put into it by Simon Power, denies people justice.

If you look at the report back and the summary from the Justice and Electoral Committee, you will see how appallingly bad this legislation was when it was introduced. It was so appallingly bad that a new Minister of Justice coming in could not sustain it, particularly not one with leadership ambitions, and trying to take away the flinty-faced image that she had. She realised that this was poison to her, and particularly poison to her when justice to children is being denied. But the Minister has not realised that very effectively, because this is the second bill that we have had in the Chamber this afternoon that has sought to take away the rights of representation that children can have. I think that that is an absolute disgrace. This legislation has been gutted of about maybe 70 percent of the appalling—appalling—original clauses that it had in it. What I am saying to members today is that the remaining 30 percent is not worth the paper that it is printed on, either.

When you look at it, there are so many extra procedural things that the court will have to go through that this will not be saving money; this will be costing money. This becomes a bureaucratic nightmare when you work out what the interests of justice involve and where there is serious hardship, all for the saving of $50 as a fee on legal aid or for trying, under Part 2, to force the parents to pay the cost of counsel for the child. There will be battles between the parents, who may be at odds with each other. In the end, for the sake of saving a little bit of cash up front, there will be huge administrative costs, and the child runs the risk of not seeing justice done in his or her case.

The regulatory impact analysis of this bill, applying to Part 2, says that “The purpose of the legal aid scheme is to provide access to justice by providing legal services to people of insufficient means. It contributes to fairer outcomes by ensuring that parties with unequal financial resources have equal access to justice. Consequently, legal aid helps underpin confidence in the justice system.” That is the Government’s own regulatory impact statement. I want the new Minister in the chair, the Minister for the Environment, to explain how in any way Part 2 of this bill—or, for that matter, Part 1—meets the objectives set out in the regulatory impact statement. How is it that this bill helps provide access to justice? The whole purpose of this bill is to deny access to justice. It is to deny access to justice, to save money. There are many areas where the Government could save money without denying access to justice, and particularly without the punitive areas that are involved with changes to the Care of Children Act that are made in Part 2 of this bill. The Minister of Justice, under the pressure of submissions that were made to the Justice and Electoral Committee, has tried to make this bill acceptable. She has taken out some of the worst features of it, but she has, equally, left features that render this bill unacceptable to our side of the Chamber.

In relation to clause 27 of the bill, the Minister previously in the chair, the Minister for Courts, said the paramount principle of the Care of the Children Act was the best interests of the child, and that because that was in the principal Act it did not need to be included in Part 2 of this bill. That is not a very good reason. It is abundantly apparent that when you are charging for counsel for the child and putting in obstacles in the way done by this bill and the previous bill that the Parliament has just considered, the Family Court Proceedings Reform Bill, you are not acting in the best interests—

The CHAIRPERSON (H V Ross Robertson): Order!

“You” meaning the generic “you”, Mr Chairman. I am sure that you would want to see the best interests of the child protected in this bill. You are a very good Chair and member of the Parliament. We are interested in upholding what every New Zealander believes should be upheld: that the interests of the child should be paramount. Why is it that this bill is so miserable—

It is always very interesting to follow the Hon Phil Goff, and particularly one of his vein-popping, angry presentations. That was, I think, probably an indication that he has been following Australian politics very closely this week. One of my colleagues was unkind enough to think that maybe a new name for him might be “Phil Rudd”, but probably I should refer to him always by his true and proper name, which is the honourable member for Mt Roskill.

Speaking in the Committee stage on Part 2 of this Legal Assistance Amendment Bill, there are several point that I would like to make. Part 2 is the part that makes amendments to other Acts—notably, amendments to the Accident Compensation Act 2001 and the Care of Children Act 2004. Clause 26 relates to the costs of court-appointed counsel: “the court may, if it thinks it is appropriate, order a party to the proceedings to refund to the Crown an amount the court specifies in respect of any fees and expenses that relate to” the appointment of counsel. During the select committee stage, the Justice and Electoral Committee considered this point carefully. It is appropriate that I just mention the good work of the committee. These were issues that were in some cases quite technical, quite complicated, and committee members addressed themselves to them with full keenness, vigour, and attention to that detail.

The clause that I was referring to goes on to say that “no order under section 131A may be made against—(a) the Crown, … (b) a person in whose custody the child concerned has been placed [following] an order made under the Children, Young Persons, and Their Families Act 1989.” Proposed new sections 131A through to 131C have been inserted into the bill. Proposed new section 131A allows for an order requiring refund of payments in respect of a lawyer acting for the child. Proposed new section 131A(2) says that each party must pay an equal share of the prescribed proportion, and that such an order may be declined to be made by the court against a party if the court is satisfied that the order would cause serious hardship to the party or serious hardship to the dependent child of the party. The court would need to be satisfied that, in its view of the circumstances of the case, including the conduct of any party—that is important, the conduct of any party—it would be inappropriate to require the amount payable in accordance with the court’s view.

The test for serious hardship is important and one that I know the courts already take seriously, and it is well considered in other legislation. Kris Faafoi, in his contribution to this debate a few minutes ago, spoke about this. Serious hardship includes significant financial difficulties that arise for a variety of reasons. Those reasons can include such matters as the party’s inability to meet minimum living expenses according to what is known as normal community standards. Also relevant for consideration in a determination of serious hardship will be the cost of medical treatment for an illness or injury of the party or a dependent child of the party, and I think that is right and appropriate. Serious illness suffered by the party or by a dependent child of the party is also to be considered in the measure of what serious hardship is, and I am pleased to see that the cost of education for a dependent child is another relevant factor the court would take into consideration in determining serious hardship.

The clause goes on to exclude some factors that are not to be included in the definition of serious hardship. Again, I think the legislation will address those matters appropriately. For instance, social activities and the entertainment of the party or the dependent child are not to be considered. The party’s inability to merely fund or afford goods or services that are expensive or of a higher quality or standard than the normal community standard of goods and services is also excluded from the consideration in terms of the definition of serious hardship.

As I said, the committee has dealt very carefully with these sections. They are complicated. They are worthy of the careful consideration of this Committee. I am very grateful for the work done by all members of the select committee.