Third Readings

When one is an issues-based party it is very easy just to poke fun and actually criticise the roles and responsibility of governance, which is what the Government is about. We are about access to justice, but at the same time we are about responsibility in the use of public funds as well.

I take a brief call on this third reading of these bills, formerly part of the Legal Assistance Amendment Bill. What is really clear in the regulatory impact statement is that the current costs of legal aid are escalating out of control. It is clearly stated that the current growth in legal aid expenditure is not sustainable, and hence the reason for the original title was the Legal Assistance (Sustainability) Amendment Bill. It became very clear that it was not sustainable. This is not just about cutting costs. This is about making sure that the system is responsive.

The 25 submissions clearly highlighted their concerns, but at the same time those concerns were also addressed. There were concerns about the impact on access to justice, self-represented litigants and defendants, reductions in eligibility for criminal legal aid, and amending eligible proceedings by Order in Council. In response to the submissions on the legislation, the Government has approved Supplementary Order Paper 134, which removes from the legislation the clauses that submitters were most opposed to.

The Justice and Electoral Committee—and I want to commend the Minister of Justice as well—has heard the concerns, and has ensured that we have adjusted and amended the legislation so that it is looking at ensuring that access to justice is there for those who are most in need, but at the same time is being responsible in governance for the role that we have.

I do commend this legislation. It is good legislation. We have heard the submitters; we have responded. I commend this bill to the House.

The bills formerly part of the Legal Assistance Amendment Bill are really just more of the bills being brought forward to wrench cost savings out of the overall justice budget. This time it is the legal aid scheme that is to suffer. The bills affect low-income New Zealanders’ ability to have effective legal representation for a range of matters for which such aid was previously available. The result will be many more self-represented cases, more appeals, less effective justice, and, as a flow-on effect, more, not less, cost. So if cost savings were the prime motivation, then they are a false economy.

There are several specific reasons why New Zealand First must vote against the bills. Firstly, new subsection 10(3A) in clause 7(2) of the Legal Services Amendment Bill says that the Legal Services Commissioner is to refuse legal aid if the applicant is in arrears for repayment on legal aid grants. That is subject to an interests of justice test. But this is intended, really, to encourage legally aided people to recommence payments on arrears relating to the payment of previous grants. Once they begin making repayments again, they would become eligible for legal aid again. But clause 4(3) exempts only these applications—firstly, those “by a patient … under the Mental Health (Compulsory Assessment and Treatment) Act 1992”; “proceedings under the Protection of Personal and Property Rights Act 1988;”, to enable “a person to apply for a protection order under … the Domestic Violence Act 1995”, and in respect of a proceeding that is or involves “recognition of a person as a refugee or protected person”. It has been argued that all these new provisions would be unlikely to reduce significantly the number of people receiving legal aid, but I am not convinced. I think it is likely to cause injustice, even if in only a few cases, by making legal aid unavailable.

I do not trust the commissioner’s discretion, as far as the interests of justice test is concerned. By far the main reason why people fall into arrears is that they cannot afford the repayments; that is obvious. It is, therefore, unfair in those circumstances to withhold legal aid on a new application. It may easily be that the application is to get representation to defend an action against the applicant, which this section could cause to be declined as far as legal aid is concerned. It seems to me, therefore, that the amount of money this will save makes the provision nothing less than penny-pinching of the worst kind. There are other and better ways of getting repayment than this Draconian measure. Clause 11A says that the amount owing is a debt and is, therefore, collectable as such under the general law. That should be enough. In addition, clause 12A inserts a new section to enable deductions from income from social welfare benefits, from State sector employees, and from funds held by third parties such as banks. The effects of these provisions to allow denial of legal aid where there are previous legal aid debts not being repaid as required are bad effects on vulnerable people and are disproportionate to the very minor benefit claim in terms of saving money.

I remain concerned that such people would, in fact, be denied legal aid unjustly, and that the commissioner’s discretion, perhaps administered by a relatively junior officer on the commissioner’s behalf, will too often not be adequately assessed as an interests of justice case. It is difficult to see, in fact, how this provision will work properly anyway, because if the applicant is eligible for legal aid under the principal Act because they have an arguable case and reasonable prospects of success, or are obliged to defend proceedings against them, then, ipso facto, the interests of justice test must have been satisfied anyway. Thus, this section, which is aimed at disqualifying the grant, can never apply logically for interests of justice reasons, so this is legal nonsense, I think.

Another defect in the bill is its reintroduction of a user charge for applications for legal assistance, although it is now only $50 and not $100, as originally proposed. In many cases, legal aid providers simply pay that charge, since their clients, on many occasions, simply cannot afford to do so. At a time when more and more providers are exiting the business of providing legal aid services, this seems like a self-defeating and bad public policy provision. Again, it shows penny-pinching, where the money saved by the Crown will be small, but the effect on low-income people likely to be involved will be disproportionately high.

Another reason why New Zealand First cannot support this bill is its introduction of interest to be charged on legal aid. Clause 12 requires that interest may be charged on all unpaid final legal aid debt. The intention is to incentivise prompt payment of legal aid debt, but this is very unlikely given the financial position of most legally aided people. So the real effect is just to increase the person’s debt by the addition of interest. In clause 12, new section 40(1) states as follows—and I will just find that new section in the bill. It “applies to any amount that is payable in respect of a grant of legal aid made on or after the commencement of this section”. New section 40(2) states that the person must pay interest on that amount owing, but new section 40(3), the following subsection, states that it “applies to a debt (a prior debt) that is owned by an aided person to the Commissioner in respect of grant of legal aid made before the commencement of this section”. And subsection (4) states: “The Commissioner may, by written notice, require the aided person to pay interest in respect of the prior debt”. So there is a discretion in that case regarding those prior debts. Why should this be so? It does not really make any sense to me. On what basis is such discretion to be exercised?

Parliament should avoid giving such unguided discretions. It is wrong in principle and it is not in accordance with general legal norms to impose such a provision retrospectively on prior legal aid debt. The people who signed up for legal aid did not sign up for that. They did not know that interest was going to be added later. That is wrong. The principle of charging interest at all is wrong in general. People who qualify for legal aid are, by definition, not able to afford it easily. Charging interest will make that even more difficult. The State should get repayment of legal aid, of course, but it should not be charging interest on top of that. The State actually pays no interest itself; the scheme is provided for from taxation. So the State should not be profiting from legal aid debts owed to it. In some cases, the addition of interest will itself create hardship. There is discretion to waive the interest, and the debt itself, for that matter, but this is likely to be too often withheld.

These bills were badly conceived at the outset. They are another attack on the lowest-income people in the community. They are penny-pinching at the expense of an effective legal aid system. The Government has lost its way as to what legal aid is really about. It is really about access to justice. It is really about a fair way to assist people who are unable to afford a lawyer without State assistance, or to assist people who have no choice but to defend proceedings brought against them. This bill will operate to make legal aid not available to some when it is most needed, and it will add costs and interest on legal aid debts that make them even worse. New Zealand First will certainly vote against this bill, because New Zealand First believes in fair access to justice; this Government clearly does not.

I rise to take a brief call on the third readings of the Legal Services Amendment Bill and the other bills arising from the Legal Assistance Amendment Bill. I back this legislation because it is adjusting the eligibility for legal aid to provide greater flexibility in the future, and I do not think that the Government should resile at all from the fact that this is designed to save $138 million worth of hard-working taxpayers’ money over the next 4 years. At the same time these changes are not going to affect the most vulnerable parties, including the care and protection of children and those who are involved in serious criminal matters.

This legislation is designed to get the parties to resolve more of those minor matters among themselves, rather than through the courts, while making sure that legal aid is there for those who need it most. It does strike a balance between ensuring the viability of the legal aid scheme and prioritising funding to those people who have the highest need for legal aid help. This legislation builds on what National has already done in the area of legal aid reform, which includes expanding the Public Defence Service to take up to half of all those criminal defence cases, making victims of serious crime eligible for legal aid for coronial inquests and parole hearings, and establishing performance standards for legal aid lawyers.

I would like to congratulate the Minister of Justice, who is probably the best Minister of Justice we have had in my lifetime, and the chairman of the Justice and Electoral Committee, Mr Scott Simpson from Coromandel, on shepherding this legislation through the select committee. I take pleasure in commending this legislation to the House.

It is amazing how you can misuse the English language. The word “flexibility”, which the member who has just resumed his seat, Paul Foster-Bell, used, actually translates to cutting $138 million out of ensuring access to justice for those who are least able to pay for it. He calls it flexibility.

💬 Hon Maryan Street: Orwellian.

It is. It has tones of 1984. It is Orwellian. The Legal Assistance Amendment Bill was such a bad bill that it was voted for by the National Cabinet in 2011, then supported by the National caucus and introduced to the House that year with the unanimous support of National, and it comes to the House now as the Legal Services Amendment Bill with more deletions than any bill I have seen in recent times, because the National caucus and Cabinet got it so absolutely wrong. They are prepared to be shameless, but not so shameless that they could sustain a bill that fundamentally denies the right of justice to so many New Zealanders.

It is not simply the minority report in the report back of the original bill that condemns it; it is the majority commentary from the Justice and Electoral Committee that constitutes in this report back a nine-page apology for getting it absolutely wrong. Let me give you an example. This is on tightening the means test for people defending themselves against criminal charges. The majority of the committee said that this “would restrict access to justice too severely and could breach a person’s right to a fair trial,”. How much more basic a breach of fundamental human rights could that admission actually own up to? The bill, which is designed to save money, taking it out of the hides of those least able to look after themselves, constituted a fundamental breach of justice, and the member who just resumed his seat described that as flexibility. On and on it goes.

You know, the original bill was even going to means test people under the Protection of Personal and Property Rights Act. Do you know whom that means? It means mentally disabled people who have no ability to look after their own rights. Of course, when the submitters came to the select committee, the National Party members bowed their heads in shame and knew that they had to cut that out of the bill.

You know what else the bill was going to do? It was going to set up a means test on disposable capital. Does the member Mr Foster-Bell know what that involved? It was going to means test things like the family refrigerator and washing machine. It was going to means test the basic tools of trade of people who relied on those tools to go out and work. Most shameful, if you were in a wheelchair, the bill was going to means test the value of the wheelchair. That is how miserable this Government was. Why did every member of that National caucus come into this Chamber and vote for legislation that looked like that? No concept of social justice. No concept of the understanding that the decency of any society is based on whether you accord those people the right to justice.

You know, National also had an approval framework that it was going to change for court-appointed lawyers representing children, and it was going to charge foster parents for parenting orders that they had to get from court. The select committee, to be fair to the select committee, said that it could find no justification at all for changing a framework that was working well. I want to ask the Minister of Justice why it was that her Cabinet got it so wrong that it recommended things that the select committee, including her own backbenchers on that committee, threw out. How did it get it so wrong? Why was it so mean-minded that it was going to take it out of the hides of people not capable of protecting themselves?

You know what else the report back says? It says that this bill would increase the number of self-represented litigants. Well, as Lianne Dalziel said, that meant actually having no representation at all. People who do not understand the principles of justice, who do not understand the court procedures, were going to be denied the right to proper legal advice so that they understood what the principles of justice required, and understood the procedures that they were going through in court. In the end, does that save money? No, it costs money because it takes extra court time because the judge has to go through at each step and tell the person who is supposedly representing themselves what the court requires of those people.

One of the other things in the original bill, and National has not even changed this, is that if you had previous legal aid debts that you were not able to meet, you were going to be denied legal aid. If a person was sitting on their hands and sitting on their bank account and simply refusing to pay the debts, fair enough. But I guarantee to this House that most of the people who had legal aid debts had those debts because they did not have the means to pay that money back. Any decent parent, when it came to choosing between putting shoes on the feet of their kids and clothes on their back or repaying a legal aid bill, would put the priority on their own kids. So here we have this Government saying: “You are already so poor and downtrodden that you cannot repay the bill. Now we will deny you legal aid because you are not able to afford to repay the bill. And, what is more, we will charge you interest on the arrears.”

You know, I think I can understand why a Cabinet of 20 people, each on at least a quarter of a million dollars a year, has so lost touch with the situation of the average working New Zealander that it cannot understand that a low-income New Zealander cannot afford the thousands of dollars or the tens of thousands of dollars that legal bills require. I want to remind Mrs Collins and her Cabinet colleagues of what the regulatory impact statement on the original bill says about legal aid. This is what it says: “The purpose of the legal aid scheme is to provide access to justice by providing legal services to people of insufficient means.” The situation with legal aid is not that generous. I think the means test for a single person is $21,000. That is below the minimum wage. So a single person on a minimum wage cannot get access to assistance under this legislation. If you have got family dependants, it is a little bit more generous, as the threshold is about $51,000.

The regulatory impact analysis goes on to say this about legal aid: “It contributes to fairer outcomes by ensuring that parties with unequal financial resources have equal access to justice.” You know, at the moment, the justice system too often works only in the interests of the wealthy. The wealthy person who can afford to go out and pay the QC will get off the charges, sometimes without regard to the merit of their case. The low-income person will not be able to afford anyone to represent them at all unless they are so ground down that they are right at the bottom of the heap. How, Mr Foster-Bell, can that mean access to justice? How can that mean fairness in the system? Why is it fair that the wealthy person can escape charges or the wealthy person can push down the person whom they may be up against in court who does not have resources and does not even have representation? That is fundamentally unfair. It is fundamentally wrong. That is why this party is opposing this legislation.

The other thing the regulatory impact statement says is that “legal aid helps underpin confidence in the justice system.” Well, this legislation undermines confidence in the justice system because it puts cost cutting ahead of the interests of justice. You know, it is not simply that the Government cannot afford it. The Government can afford to give tax cuts to the most wealthy. John Key, the Prime Minister, had several hundred thousand dollars a year in tax cuts, but that is on the backs of the people who lose access to legal aid, who cannot afford to be represented in court. I ask this Government where its priorities lie. I ask this Government where its sense of justice is. This legislation lacks it.

Can I just say that that was such a wonderfully impassioned kōrero. It is so fabulous that nobody was here to listen to it. So let us get back to reality now.

I want to congratulate the Hon Judith Collins, Minister of Justice, on bringing this legislation to the House. The John Key - led National Government is committed to ensuring the legal aid system remains affordable in the future and that legal aid is available for those who need it most. The current legal aid system is unsustainable. Let us get past all the rhetoric and get to the facts—it is unsustainable. Legal aid expenditure increased by 55 percent between 2006-2007 and 2009-2010.

Let us get back to reality, and let us look at it logically. This growth would have resulted in a $402 million gap in legal aid funding over 5 years. So this Government has taken action to bring this under control. The legislation provides greater flexibility to adjust eligibility in the future and for improvements in the assessment of eligibility. The reforms include tightening the merits tests for family cases by no longer needing to take into account the interests of other vulnerable parties. I commend this legislation to the House. Kia ora.

I understand the next call is a split call. Sue Moroney—5 minutes.

I would like to say that it would be a pleasure to stand and speak on the legislation that was the Legal Assistance Amendment Bill, but I am afraid in this case it is not, because it is legislation that actually restricts the access to justice. The speaker who just resumed her seat, Claudette Hauiti—you know, I was really looking forward to the sort of difference that she might make to the kaupapa and the rhetoric coming from the National Party, but, unfortunately, all she has done is taken it in hook, line, and sinker. There she is saying that it is a good thing; that it is actually a good thing in her view that National is curtailing people’s access to actually ensure that they have got the resources to have a fair go.

That is what this legislation is about. It is about, as Labour believes, everyone’s right to have a fair go in our justice system. Is that not what the justice system is supposed to be all about? It is supposed to be about ensuring fair outcomes and that everyone has a fair go. Yet at the outset what this legislation is doing is curtailing, particularly for low-income people, the ability to actually have that fair go right from the word go. In particular, it has implications for women, because women are more frequently in that low-income area, and they do—[Interruption]

I know that Judith Collins and Hekia Parata do not think it is an important issue that we actually analyse these pieces of legislation from the perspective of what the impact is on women. I know that their party now does not even require some independent analysis of the gender impact of any piece of legislation, because it has—get this—“mainstreamed” gender analysis in the National Party. What that means is that the same ministry officials who came up with this legislation are the ones who get to analyse what the impact is on a gender basis. So the National Party has done away with the Ministry of Women’s Affairs having a role and having independent scrutiny over all of these pieces of legislation to say how they impact on women.

It is no surprise from the National Party that it actually does not care. It actually does not care about what the impact is on women and, in this instance, with this legislation, on children as well. The advice that it got from its own officials was that this bill does have a disproportionate effect—and a badly disproportionate effect—on women and children, particularly as they try to actually ensure that they get a fair go through the Family Court services. That is an area where many women come into contact with the justice system, and it is probably for them the first time that they are given cause to think about that very important issue of actually getting a fair go.

Getting a fair go means having equal access to representation, and having equal access to knowledge and information. That is where this legislation does not give them a fair go, because it actually limits the number of people who can get access to legal aid to ensure that they have got access to representation, access to information, and access to advice. That is a cornerstone of our justice system—or, at least, it once was. It once was a cornerstone of our justice system, until the National Party decided that cost-cutting was superior to actually having access to justice as a cornerstone of our justice system.

So it is with a heavy heart that I speak in opposition—in strong opposition—to this legislation, because, in the Labour Party, equality of access to justice is a fundamental principle. It is one that will not be supported by this legislation, and therefore we cannot and will not support this legislation.

I agree with all of those who have spoken before in opposition to this legislation arising from the Legal Assistance Amendment Bill, which is just, frankly, mean-minded. It is just another set of provisions that will suck money out of the pockets of the poorest New Zealanders for no benefit to anyone, and it will not even make significant savings. I would like to check with the Hon Phil Goff that he said that there was, what, $138 million in savings being made?

💬 Hon Phil Goff: That’s right.

That is right. So that is about the same amount of money that this Government has spent on selling Mighty River Power, and also about the same amount of money that it has now set aside for the bailout of Solid Energy. This Government has got the money to make sure that every New Zealander who is entitled to it gets access to the justice that they deserve. The Government just chooses not to give it to them. It just chooses to make sure that those who are the wealthiest get access to the public’s resources, and it will do everything it can to suck the money for that out of the pockets of the poor. This legislation comes hard on the heels of the Family Court Proceedings Reform Bill, which, as we also saw, was a deliberate cost-cutting measure—not saving huge amounts of money in the scheme of things, but certainly making it much, much more difficult for the most vulnerable, including women and their children, to access the justice and the protections that they deserve.

The legislation also comes just over a month, I think, after the Minister of Justice had to withdraw her appeal against a Court of Appeal decision on previous legal aid decisions that this Government had made—legal aid decisions that were declared, in part, to be unlawful. I refer to the criminal fixed fee and complex cases policy, where, actually, the Criminal Bar Association took the Government and this Minister to court and was found to be right—that part of that process was, indeed, unfair. The original legal aid changes to the fixed fee and complex cases policy were also designed as a deliberate attempt to suck some money back into the Government coffers so that it could spend it on wasteful produce like the sale of our State assets, of which another one is due to happen soon—more spending on that, like bailing out Solid Energy, and like the billion-dollar motorway madness that this Government is undertaking.

Where does all that money come from? Bit by bit, the Government is sucking it out of the poor. What does it mean? It means that those who have the very least are the ones who are paying the very most. If you just look at the changes that the Justice and Electoral Committee has made or at the provisions of the bill, there are three areas I would refer to. One is that those who are in arrears—those who have received legal aid at some point but who are in arrears—are subject to a potential declining of any further application for legal aid. I mean, that is not going to save the Government hundreds and hundreds of millions of dollars, but it is going to mean that those people will not get access to justice. It will mean that they are much more likely to suffer from unsafe convictions. It means that they are much more likely to get prison time, for example, that they should not be receiving. It means that the number of the currently 20,000 children of prisoners will significantly increase as more and more families find themselves subject to legal processes that they cannot defend themselves against, unable to get decent legal representation because of these cuts, and find themselves subject to unsafe and unfair convictions.

There is interest to be charged. Where does this Government come from when it thinks that the best thing to do with a family or person who is living in poverty is to charge them more money? If someone has no money, this Government seems to think that it will just keep on squeezing them and squeezing them dry with ridiculous provisions like charging interest, where clearly there are cases where these people do not have the money to pay. What is the point of that?

💬 Richard Prosser: Beatings will continue until morale improves.

The beatings will continue until morale improves—that is right. Then, of course, you have the $50 fee. The select committee has brought that fee down, and for that we are very grateful, but by putting a financial barrier right at the very start of the process, you knock out those who simply cannot afford it. The whole point of the legal aid system is to provide access to justice for those who cannot afford it. So why use this legislation simply to put in place more financial barriers to those who have the least resources?

I can hear the Minister of Justice over there, sighing like a—I do not know; like something.

💬 Sue Moroney: A panda.

Maybe that is right. She is just sighing away there, but that is because she is not one of those who will be subject to this legislation—

I am sorry to interrupt the honourable member. Her time has expired. [Interruption]

I raise a point of order, Mr Speaker. I take personal offence at Judith Collins calling me stupid—[Interruption]

The ASSISTANT SPEAKER (Lindsay Tisch): Order! There is a point of order before the House.

—across the House and I would ask that she be made to withdraw and apologise for that comment. [Interruption]

The ASSISTANT SPEAKER (Lindsay Tisch): Order! There is a point of order, and the Minister interrupted during a point of order. I ask the Minister just to withdraw the comment.

💬 Hon Judith Collins: Oh yes, I withdraw the comment.

This debate has concluded. We have dealt with six bills as one question. I can put the six bills as one question or they can be put individually.

💬 Hon Member: One question.

The ASSISTANT SPEAKER (Lindsay Tisch): I will put them as one question. The question is that the motion be agreed to. Those that are of that opinion will say Aye, to the contrary No. The Ayes have it.

Bills read a third time.

I raise a point of order, Mr Speaker. My apologies—I appreciate that I have obviously got this wrong. I understood that you were calling for a vote as to whether or not the votes should be held as one, not the vote itself. Was I wrong in that?

No, I certainly did not do that. I said that we had six bills and I would put them as one question or individually, and did parties wish to take them individually. No party said they wanted to take them individually, so I put the question. I put the vote to the House and it was voted on accordingly. No one called for a party vote on that, and that is why the Clerk has just read the third readings. The matter is now finished.