Legal Assistance Amendment Bill

I rise to take another call. It is quite clear from the Legal Assistance Amendment Bill and from the debate we have had so far on it—and by the removal already, before we even came to the Committee stage, of the word “(Sustainability)” from the bill as was originally presented to Parliament—that this is not a bill about legal assistance, at all. It has departed so vastly, so greatly, from that original objective that it cannot possibly be described as a legal assistance bill in any measure, at all.

This bill is fiscally driven. It is about this Government’s desperate bid to drive down the cost of legal aid. We know that legal aid is expensive. It comprises a significant proportion of the Ministry of Justice budget—I think about 50 percent, and that is a big chunk. But that is because legal aid plays a very important part in the life of our justice system, and I underscore “justice” because, knowing what legal costs are in this country, as they are in other developed countries, without legal aid a large number of people would be deprived of the right to access our justice system. They would be deprived of the right to representation. So when we are considering matters of legal representation and the assistance that people need to get legal representation so that they can stand up and have their views heard in court and they can defend themselves, whether it is against the power of the State or whether it is against the power of other citizens who are well funded and well founded, then we should tread very carefully and very cautiously. And we should bear in mind the fundamental principle that there is no such thing as a justice system that shuts out a significant proportion of the population.

We, as a developed country, celebrate our participation in, and our adherence to, the principle of the rule of law. I have talked about that before in this House, and it is absolutely fundamental to a developed country. In fact, one of the markers of a civilised and developed country is that we observe the principles of the rule of law, and a fundamental principle of the rule of law is that all citizens have equal access to justice, which means that they have equal access to the institutions of justice, which include our court system. So when citizens are called upon to be in court because somebody else sues them or they are in a situation where they have faced an injustice—it might be a consumer malfeasance, it might be a family matter, it might be a criminal matter, it might be a regulatory matter—and they are required to appear in court to argue their case or defend their position, then those who cannot afford legal representation must be given assistance to do that. That is a constitutional principle. It is not about private rights. It is not about the private realm. It is a constitutional matter that if people are caught up in private disputes and must call upon the justice system, or if people are called upon to answer the powerful hand of the State, then they must be afforded proper support so that they can be represented and be advocated for in court.

The legal aid system that we have at the moment already sets a very low threshold—in fact, actually a very high threshold but a low income threshold, which enables them to get access to State assistance to be represented in court—of $22,000 a year. There are a lot of people who are earning considerably more than that who would have great difficulty affording the legal fees that would be required to mount even a small or brief legal case. Even a plea in mitigation for a small criminal matter is going to cost a few hundred dollars, and if you are on $30,000, $35,000, or even $40,000 a year, an extra few hundred dollars at a point in time in your earning year is going to be a significant burden. Those people do not have access to legal assistance. If it is a serious criminal matter, they may do, but the income threshold that entitles a person to legal aid is very low.

This bill compounds that situation when it comes to civil matters. The imposition of a $50 user charge to somebody who is on $22,000 a year is a significant obstacle. That is a huge burden. That is the difference between buying some food that week, paying the power bill that month, or meeting other important costs, and not. It might be a school bill or something like that. Fifty dollars is a significant imposition on somebody on $22,000 a year, but this bill puts it on them.

This bill also potentially levies other costs. When it comes to a care of children matter, a person on legal aid may be required to meet the cost of counsel for the child, if the court appoints counsel for the child in a case in which they are involved. They may have access to time payments. There may be means for them to do that, but that will be a significant burden on them, as it would be, obviously, to somebody on much less than $22,000 a year. The bill provides for debt collection measures, which add to it, and they include attachment orders, and attachment orders to the extent of 40 percent of people’s net income—their net weekly pay. That is a huge proportion of their pay, and that is enough to tip people over into absolute, dire poverty.

This bill is not about legal assistance. This bill might be more appropriately named the “Legal Costs (Imposition of a Cost Burden on the Poor) Bill”, because that is what it will do. In a desperate bid by this Government to drive down the cost of legal aid, it has lost sight of the wood for the trees. What is an important constitutional principle that is about access to justice has got completely lost in the Government’s desperate bid to recover costs and make its books look better. Although no one would argue against proper fiscal responsibility in the management of the Government books, we cannot overlook the important principle that access to justice will be put at risk, at least for some people, as a consequence of this bill. So the title must reflect that. “Legal Assistance Amendment Bill” simply does not speak to the reality of this piece of legislation, which is the imposition of significant hardship and a much greater burden on people who are least in a position to bear that. We are opposed to it for that reason.

The title and commencement clauses debate for bills is usually an opportunity for members of Parliament to take some licence and have some fun with the titles of bills. But in this instance I am certainly not going to do that, because this is simply not a funny issue, at all, and to do that would be belittling the effect of what this bill is having on our communities. It is a serious issue.

As it stands I believe the title of the bill is the “Legal Assistance Amendment Bill”; the word “(Sustainability)” has been struck out by the Justice and Electoral Committee. The question has to be asked—and I have commended the select committee for making such changes—as to why the select committee thought it fit to remove one word from the title, that being “Sustainability”. Wanting to be accurate, the Chair has given me the ability to borrow his dictionary. It does not exactly have the word “sustainability”, but under “sustain” one of the descriptions is “to provide for or give support to, esp. by supplying necessities:”.

Therein lies the reason why this select committee has taken out the word “Sustainability” from the title of the bill. It is because this certainly does not provide for or give support, “especially by supplying necessities”, to the legal assistance arena of our justice system. In fact, we would argue that it does exactly the opposite of that, by taking away support for, and not supplying, the necessities for legal assistance, especially for our most vulnerable families. As Andrew Little argued, we do not want to get to the stage where access to justice and the ability to go through the justice system, whether it be a civil matter or a criminal matter, is all based on how much money you have in your bank account.

We believe that the motivation for this bill is simply fiscal, and that is to cut costs. Unfortunately, one of the effects of that is, as we fear, that access to justice for many New Zealanders will be removed. So we do believe, when looking at the dictionary here, that the select committee was right to remove the word “sustainability” from the title, because this bill does not provide any support and it certainly does not provide the legal assistance arena with the necessities to do what we believe the legal assistance provisions in our justice system are there to do. We do think it does exactly the opposite.

We need to think of this from three different perspectives. One is, as I have mentioned before, the perspective of the child. There are no words in the title at the moment that I can see that point towards it being in the best interests of the child, nor in the explanatory note, and that was a point that was made by the Children’s Commissioner. I will take the liberty of taking some quotes out of his submission to the select committee. He made a number of very good points. He noted 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 went 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.”

You cannot argue with the Children’s Commissioner on that. You may think that his being the primary advocate for children in our Government set-up would mean that he is purely focused on that, but as we can see and as I have referenced before, there is no reference to children in either the explanatory note or the title.

The recommendations that the Children’s Commissioner made were, basically, not to proceed with this bill. His recommendations were “That the Bill is amended to expressly provide for the continuation of the current Court-administered selection processes;”. Also, basically, he thought that the provisions for access to justice for the best interests of the children were not in the best interests of the children.

There are other pieces of legislation that are going through this House that we also think are down to cost cutting, and one has been on the Order Paper earlier today. I do want to read a quote from Mark Henaghan from Otago University. This is going back to working in the best interests of the children. Professor Mark Henaghan expressed his feelings in a very concise quote on the removal of child advocates, and this is certainly something that is covered in this bill. He said—it is a very quick quote—“So if we take their representation out, we kind of doom them to not be heard.” In essence, if we do make the barriers much higher for families to access justice, which is what we are doing here in the Legal Assistance Amendment Bill, I think that Mr Henaghan’s quote becomes quite apt. As Mr Little said, we believe that one of the effects of this bill is there will be fewer child advocate counsels being able to be accessed by families, and we do think that is of major concern to a lot of communities.

Certainly, as I have mentioned, in my community in Porirua the legal fraternity is very worried. Family lawyers are very worried about their ability to be able to act for families that they have had a relationship with for many, many years. I think they are a bit frustrated with some of the commentary that came back in their direction when they were opposing the moves that the Government is making—that the lawyers were trying to keep the gravy train going, and that they were concerned only about the fees that could be got out of prolonging what is already in place, or taking away any legal assistance that might be open to them. There was a deep level of frustration at that, and I think that is well founded, because if you go to most communities around New Zealand and you talk to lawyers who are acting in Family Court proceedings or family proceedings, they very much have the interests of children and families at heart. I am sure some of them also need to eat, so they want to make sure that they get paid, but the insinuation that these lawyers were basically out to look after themselves was something from the Government that certainly upset them.

As I said, this is not one of those title and commencement debates where you have fun with the title of the bill or with the commencement of the bill—not that I think anyone has ever had any fun talking about the commencement of a bill. This is a serious issue. I note that the word “Sustainability” has been removed from the title. I have noted that this dictionary, which has been loaned to me momentarily, talks about sustainability being the ability “to provide for or give support to, esp. by supplying necessities:”. We do not believe that this bill does that to the legal aid framework. We believe it does the exact opposite. It is appropriate that that word “Sustainability” was removed from the title. Maybe the Government should not have put it in there in the first place, and it has been exposed for that. We do not believe that the bill does make the legal aid framework sustainable. We think it takes away the rights for many, many New Zealanders to access justice, especially for the most vulnerable. Especially on this side of the Chamber, we do not want to get to the stage where access to justice depends on whether you can afford it or not.

I would like to follow on from that excellent contribution from my colleague Kris Faafoi, where he basically ended with reference to the original name of the bill, the Legal Assistance (Sustainability) Amendment Bill. Of course, the word “Sustainability” has been removed. I too agree with him that “Sustainability” should have been removed from the bill and probably should not have been in there in the first place, although it was there for a particular reason, and that was that it was a cue for explaining what the Government was actually trying to do, which was to cut costs—cut the costs of legal aid.

Of course, when one cuts costs in one area, there is something else that always happens somewhere else. And is it not unusual that, normally speaking, in a regulatory impact statement you cannot find where that blowout is going to occur, because it looks only at the short-term impact and the impact on the particular budget, and it is not looking in the long term. But, actually, in this regulatory impact statement they have done an excellent job, and I want to congratulate those who put it together, unfortunately without the benefit of wide public input, because of time pressures and the budget-sensitive nature of the issues under consideration. We were told that the select committee process would, of course, substitute for the public input. I actually do not think we do justice to the need for public input on matters as important as this by saying that the select committee process will do. You can put in a written submission and then turn up and have your time in front of the committee for 5 or 10 minutes as an individual. I think that that is a bit of a problem.

I will quote from an individual’s submission because I want people to know that this is not about what lawyers think or about what people who work within the system necessarily think. It is the very direct and real impact that makes this bill not sustainable. That is why the word “Sustainability” has appropriately been withdrawn. But let me just read out the number of risks that were discerned. One was that a change of purchase approach is required but is likely to be resisted by some parts of the legal profession. Well, that has happened. There are people who have pulled out of legal aid all around the country. In fact, we heard evidence from one person down in Christchurch who had actually left her firm and set up her own practice so that she could continue to offer a degree of legal aid work to her client base, which was largely made up of refugees and migrants. I say good on her. She was extraordinary.

The regulatory impact statement states: “Reductions in the price paid to lawyers could create gaps in provision, particularly in the family and civil jurisdictions …”, which is exactly what has happened, particularly in smaller centres; “The introduction of income and asset thresholds for the criminal means test will be in tension with section 24(f) of the New Zealand Bill of Rights Act”, and that was something raised by this individual submission that I am going to refer to; and “It could also delay some court cases if judges defer proceedings because of inadequate representation. Restrictions to eligibility will disadvantage people on low incomes, who have few options to find legal services elsewhere. Generally this includes young Māori men in the criminal jurisdiction and women and children in the family jurisdiction.” I went through the list of the sequence of events that actually discriminates—not deliberately, but in fact discriminates—against Māori, and that is why we have a higher proportion of Māori in our prisons. It starts right from when they get stopped in the street, all the way through the process. They are much more likely to end up in jail for longer.

The final risk, which was the interesting one because it is raised in another submission that I want to refer to, is that “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, with flow on costs dues to delays, additional assistance required from court staff and the judiciary, and higher numbers of appeals of decisions.”

This refers me to Anita Cochrane from Auckland, who has made this submission, saying that she believes it to be “a travesty and makes a mockery of the New Zealand Bill of Rights Act …”. I congratulate her on being so forthright in her presentation to us. What she was saying was that section 24(f) of the Act makes it absolutely clear that people “shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance;”. She talks about not having the right to get a fair hearing if you cannot afford to pay for a lawyer, and I think that that is a statement that is well made.

What she went on to do was to speak of her own experience, and she did not talk about the particular matter that took her to court, but it was a case that took her “1 year and 5 court attendances, 4 of which were all remanded by the prosecution due to some reason”—for example, the documents were not there, it lost some evidence, or there was another important case going on. She says: “It was only on the 5th attendance and the 5th attempt by the prosecution to remand the case yet again, that I demanded that the case go to court or they withdraw their charges.” Each time, she had to pay her lawyer $2,000 to appear. She makes the point that she earned $51,000, owns a car worth $2,000, could not afford to own her own house, and had no capital or other assets. “The opposition”—meaning the prosecution—“then tried to bully me into pleading guilty. I had to weigh up the cost of trying to find more money as I had paid out so much and still had not even seen a judge or the possibility of the end of the case. So what did I do? I was forced to agree to a $500 fine and pay court costs. It was cheaper than trying to find more money for the Lawyer, yet, the prosecution had lost the evidence!”.

This was in 2010, under the current arrangements. She asks: “Has anyone looked at how much a person earning $22000 a year actually is in real terms? After tax, a person earning $22000 takes home $330 a week. The cheapest rent for 1 bedroom in Auckland is approx $200 a week. That [leaves] $130 for food, transport, medical, and possibly child care. They could possibly have 1 dependent. What portion of New Zealand earners are in that area? Those people working in the fast food business, waitress staff and the likes. Students working part time, shelf packers … The low income earners.” Then she went on to talk about her daughter falling into that bracket but owning a car—again, that being her only asset. “The changes to the current bill,”—she says—“will require 90% of the population to pay for their own defence. From the person packing shelves right up to the company directors and owners. The 10% of the population who can get legal aid are the Zero to $21000 a year earners. These are people that are unemployed, or on sick benefits, maternity benefits or other benefits or those that fall into this criteria, … who take home $315 a week after tax.

Where is the fairness in saying, only 10% of the people are entitled to assisted legal representation?”. She made the point that actually in the Crimes Act—she quotes the Crimes Act—“ ‘The fact that an offender is ignorant of the law is not an excuse for any offence committed by him’ The reality is that many people are ignorant of the law.” She says: “There are so many laws. The people trust Parliament with the making of the laws to protect them, [not] to disadvantage them so they can represent themselves in court or plead guilty due to ignorance of the law.” That is the problem: she pleaded guilty due to ignorance of the law. She was not guilty of the offence; she would have got off if she had been able to defend herself, but the system failed her. The system let her down.

That is what my major concern is, and that is exactly what the concern was when it was expressed in the regulatory impact statement. Be careful what you wish for. Be careful what you do. The regulatory impact statement states: “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, with flow on costs due to delays, additional assistance required from court staff and the judiciary, and higher numbers of appeals of decisions.” And the one they missed out? Pleading guilty to a crime you did not commit. And that is going to happen time and time and time again, because it is much cheaper to plead guilty and end up with a conviction—$500 and court costs—despite the fact that the prosecution has lost the evidence. I wanted to mention a real case, a real submission in front of our Justice and Electoral Committee, because I think it makes it real for this Committee.

I rise to take a call on the Legal Assistance Amendment Bill, especially in regards to its title clause. I actually do agree with the Hon Lianne Dalziel. I think that hearing those real cases of real people and real places and the impact that they have is important because when we are doing this, we take those into consideration with the regulatory impact statement. The member Kris Faafoi talked about the word “sustainability”. If the member would actually read the bill, he would see that the intent talks about the importance that legal assistance be affordable into the future and available to those who need it most. I think that really is our concern.

When we look at the ongoing, growing costs that there are, we know that, for instance, the honourable member Lianne Dalziel and former member of Parliament Charles Chauvel petitioned the Minister of Justice to consider pausing the progress of the Legal Assistance Amendment Bill so that we could take into account the review that was taking place in the Ministry of Justice in regards to the Family Court. It is acknowledged that that time was taken, the Family Court review was then conducted and completed, and then, therefore, the Legal Assistance Amendment Bill was taken into consideration with that. So it is important to be able to see that the fact is that when we talk about electorates, our communities that we are talking about—

💬 Tim Macindoe: I raise a point of order, Mr Chairperson. I am sorry to interrupt my colleague, but ever since he started speaking, the level of interjection, particularly from Mr Cunliffe, has been unreasonable, and I would ask you—

The CHAIRPERSON (Lindsay Tisch): I am the judge of that.

It very much was the concern of the Justice and Electoral Committee when we heard the submissions to ensure that legal aid was available, but, most important, not just for now but into the future as well. Sustainability was absolutely important to us. We realise the importance of that at the moment. The budget for 2011 included $103.5 million in short-term funding, while longer-term sustainability issues were addressed through both this bill and the wider review of the Family Court, which would include $138 million over 4 years.

We know that adjusting the eligibility for legal aid was important, and it does make it sustainable in this. The reforms include tightening the merits test by no longer needing to take into account the interests of other vulnerable parties, and adjusting the special circumstances consideration in the means test for family and civil cases so that it focuses on expensive cases. We know—and I know Mr Faafoi knows in his community in the electorate of Mana, and even the legal fraternity there talks about it—that in the number of cases and for the number of our people who needed legal aid and should have accessed legal aid, this bill will not remove it from them. In fact, if anything, it will make it easier and more accessible, and if he reads the details, he will see that. He will see that. What is important is that—

💬 Hon David Cunliffe: I raise a point of order, Mr Chairperson. I believe that under the Standing Orders governing misrepresentation, the member has misrepresented the Government’s position—

The CHAIRPERSON (Lindsay Tisch): No, sit down. Look, that is not a point of order; those are debating points.

Thank you, Mr Chair, for your wise counsel. We know that adjusting eligibility for legal aid is important. The reforms include removing the requirement to index means thresholds to movements in the Consumers Price Index, and simplifying the administration of funding of legal aid for offenders for Parole Board appearances so that all such cases are classified as criminal legal aid. This bill increases payments by legally aided people. This change encourages people to actually take consideration of whether they need legal aid or not, and to think about whether they wish to proceed with litigation, and it provides incentives for repayment of legal aid.

We believe that the changes that are being made through this legislation, in consideration of the wider context of the Family Court review and the Family Court Proceedings Reform Bill, not only are sustainable for the future but also make legal aid accessible to our communities of need and to our vulnerable communities. I commend this clause.