Legal Services Amendment Bill

We now come to new clause 3A. This is a debate on the Hon Dr Duncan Webb’s tabled amendment inserting new clause 3A, replacing the definition of “legal services”. The question is that the Hon Dr Duncan Webb’s tabled amendment, inserting new clause 3A, be agreed to.

Thank you for the opportunity to speak to this, although I will just note that I’m surprised that my commencement amendment order was ruled out. I thought I drafted that very carefully. I clearly need to lean on the Clerks a bit more!

💬 Hon Paul Goldsmith: You’ll have to work harder.

Oh, I will, Mr Goldsmith, I will. In terms of this tabled amendment, look, I just want to make sure that the Minister’s objective is achieved, because he seems to be saying, “No legal aid money for sentencing reports.” But, as I said earlier in the House, lawyers will now be completing these reports. What a professional person was doing for $1,200, probably at $80 an hour, lawyers will now start doing for—you know, legal aid rates are pretty abysmal, but for $120 an hour, because it’s part of the work of a lawyer to advocate at sentencing, to gather the evidence, and to present it in as compelling way as they can.

Now, if the Minister doesn’t want that to happen, then he’s going to need this proposed clause 3A, which says that lawyers aren’t to do that work. Now, this is really about me saying that if you’re going to do this amendment, get it right, because that’s what’s needed here.

So, ultimately, what do you want, Minister? Do you want the lawyers to do this work? Do you want them to spend hours at the highest rate doing this work, or do you want these reports not to be put before the judge for poor people at all? Because that’s certainly the narrative that I’ve heard from you. So I’d invite you to consider this amendment and respond whether your policy is achieved by lawyers doing the work rather than experts, or by the work not being done at all.

Thank you very much, Mr Chair. I’d just like an opportunity to speak to the proposed amendment, and I’d like to commend my colleague on taking some initiative to strengthen the bill—a very short bill, really. So having a clearer description of legal services and also what’s covered in there would actually make it a lot clearer for those who are able to access these services.

It’s really important that people understand what they are entitled to in terms of access to justice. I think that, on this side of the Chamber, you know, there is a real concern that there has not been adequate consideration given to the reduction of available legal services that this bill inevitably will create.

So what we really need to be clear on—and the Minister is able to speak to this—is that this bill, effectively, removes legal aid funding for a report or a statement, whether it be oral or written, for a person, and that section stops that information from being heard from not just someone who’s an expert but also potentially from family, whānau, or community, that might help that further offending.

So we really want to see a clearer definition in that space, and the proposed amendment provides some very clear language in that space that enables you to spell that out. Also it spells it out in relation to anything other than legal aid, including legal advice and representation, and that type of assistance that would enable people to be able to have some confidence when going through the judicial system that they have that expert advice and have been given a way of understanding what can be, for some, a really confusing, foreign, and quite a difficult process to go through, whether victim or offender.

So, in terms of making access to justice paramount, in terms of removing barriers to people accessing justice, I’d be really interested to hear the Minister’s views on including this new clause 3A within the Legal Services Amendment Bill.

Mr Chair, thank you. I want to just take the point a little bit further from my friends who’ve talked about the concerns they’ve got about what this will lead to. One of the concerns I raised is because I saw what happened when there were closing-down actions by this legislature of the role of various people in the Family Court. So, in that situation, what we saw when we closed down those avenues was others spring up that were way less efficient for the system. So what we ended up with was a whole lot of people told they shouldn’t have lawyers in the process and the process got clogged up by a much less focused approach

So these reports, while not necessarily your cup of tea, Minister, need to be replaced with something because of the nature of the objectives. What I am concerned about is that if this is going to happen, that there is sufficient direction in the legislation so that that happens in a way that is efficient. So what I’ve heard the Minister say outside of this Chamber, and, I think, in the Chamber in question time, “People just do oral reports.” I’d like to know from the Minister—I really would like to know—what does he think that looks like? If somebody does an oral report, does that mean they’re bringing in a professional to do it, or does it mean they’re bringing in a whānau member to do it? And how is it going to be constrained so that it’s focused in the right way, and not just become a complete mess of a long amount of time in front of a judge who’s trying to get information out of someone who may or may not be articulate or focused on the issues that the judge needs them to focus on? So I’d like to know about that—how is this practically going to work as far as the Minister’s concerned?

Has he talked to lawyers about how this will work in that area and what it will look like? And whether, in fact, there will be an issue with equity in that case—whether if you’re paying for someone who’s going to be focused in that way and know what to do, versus you’re not paying for someone and it’s a whānau member who turns out best of motives but might not have been through this process a lot of times, might not be using any kind of checklist that it may actually be an issue. So I’d like the Minister to tell me, has he talked to people about this? Because there’s no ordinary process for this legislation. Who has he talked to? How does he see the system working in replacement? Does he see the judges taking control of it; the lawyers taking control of it?

And what is the place of the oral participation? Who does he expect to participate and how does he expect to do it? And if that is a member of the public—so a whānau member, for example, or a community leader—then isn’t the cost that’s being borne by the party for that actually quite a significant cost? Does he know how much it will be in comparison to the cost being borne at the present time by the taxpayer of what has become a very standardised, focused written report? Thank you.

Thank you, Mr. Chair. Look, this is clause 4 of the bill, which is the substantial piece in relation to changing the legislation. So it will be worthwhile just outlining what the Government is seeking to achieve. So the broad issue, if I could cast people’s minds to a website that is a company led by Harry Tam, a former gang-member, which is touting for business in these cultural reports and saying, “Come to us, get a cultural report.”, and, “We’ve managed to get discounts off sentences of up to 35 percent.”—I think was the figure that they referred to. That sort of touting for business for these reports was something that has led over the last six years to a very steady and substantial increase in the outlays for these reports: starting off about 40,000 in 2017 and stepping up to a million and then to 2 million and then to 3 million, and by the time we got to 7.5 million last year and the graph was going up like that [gestures a steep incline]. So the trajectory was clear: if we didn’t do something about it, we’d be heading for 10 million and then 15 million as the industry, the cottage industry, developed.

A member asked me who had we talked—well, one of the people that I talked about was the previous Minister of Justice, Kiri Allan, who accepted that there was a problem with this cottage industry developing and that we’d have to do something about it. Now, in the previous Labour Government, that would have meant not doing very much, and maybe getting a report and thinking about it, and in 10 years’ time maybe considering it. This Government is much more focused and determined to deliver change in a timely fashion, and so we indicated through the campaign that we were going to change that for two reasons. One, because we were concerned about the continued growth of money being spent on these reports, and given that there are many other opportunities for the background of offenders to be considered in such as pre-sentencing reports and many other factors that have been around for a long time; and secondly, we’re also concerned about the broader context of very significant discounts being given to sentences over the year.

Now, of course everybody in this Chamber will recognise that we should take into account the background of an offender and the challenges that they’ve had in their upbringing. There’s obviously a very strong connection between a deprived background—being a ward of the State, for example, coming from a gang family, and many, many other elements that are very much to be considered in the understanding of and the sentencing of prisoners. But, of course, at the same time, no society can function effectively if people aren’t held personally responsible for their actions, and, in particular, for serious crimes. So there is always an interplay between a background understanding and characteristics of an offender, and also the reality that no society can function if people aren’t held responsible for criminal acts. So that balance between the extent of discounts being offered in this category is an area that we as a Government are concerned about, and there will be further legislation down the line restricting the ability of judges to have a combined total set of discounts more than 40 percent—and that’s for future legislation. But the purpose of this legislation is to deal with that rapidly increasing amount of money being spent on what has been described on both sides of the House over the past as a cottage industry. And that is what we’re trying to achieve.

Point of order. Mr Chair, just for clarity: the Minister suggests we were looking at clause 4, I had understood we were looking at—supposed to have been—new clause 3A.

CHAIRPERSON (Teanau Tuiono): That’s correct. This is the debate on your tabled amendment inserting new clause 3A.

Thank you. That was really for clarity. That is my point of order.

Minister, I have a question, and the question is: how many reports did Harry Tam provide under this legislation?

While I believe that my colleague is probably wanting to have a backwards and forwards with the Minister, which is the purpose of these committee stages—

CHAIRPERSON (Teanau Tuiono): Do you want to do that?

Well, I can answer the question only to say, I don’t have that figure right in front of me at the moment. There were some and there is an amount of money that’s been referred to in the past. The website, in particular, that I was referring to said that they’ve conducted “many, many” reports.

In respect of that, I would challenge the Minister, because either he has not got good advice on the floor of the Chamber, or his written parliamentary answers perhaps need revisiting. Because I asked him that exact question and it was framed as “Please identify the names of the providers and the amounts that were provided to them in the preceding 12 months”, and his response was, “We do not keep figures of who gets this money in what amount. All we know about”—all he knows about—“is the amount, the global amount given for these reports across the Legal Aid Budget.”

So, Minister, I would ask you to either revisit that and be clear to the committee, because I put it to you that you have no idea how many reports Harry Tam has provided or how much. And it’s just your reckon, and it’s the kind of laziness with the facts, especially around these important reports that the National Party uses to attack other good practitioners who do prepare these reports, and you slew them by calling them a cottage industry on the back of someone who you don’t know has provided a single report; all you know is that he’s touting for business. So I would put it to you that you either revisit your written answer or you clarify on the floor of this Chamber that you don’t know.

Thank you, Mr Chair. I was listening to the Minister’s answers and I have some further questions for the Minister, particularly regarding this. We heard this cottage industry. We heard about some of the report writers that the Minister named and is taking particular exception to. He talked about some of the effects of the reports that have been written and the effect of that on sentences given, and questioning, you know, whether that was appropriate, and also hinting that they intend to bring in further legislation around that.

My question to the Minister is: did he give any real consideration to other options in the regulatory impact statement provided by officials that could have addressed some of those concerns that the Minister had without just wholesale removing—completely scrapping—the report funding for section 27 reports? Because to quote one of these articles, “To scrap the report funding completely is a retrograde step and if the information that was usually in those reports is presented to the courts, it would blow out sentencing times and judge times.” The options I refer to are: did he consider imposing a cap on the amount of legal aid funding available for section 27 reports? And option four: did he consider introducing an accreditation system for section 27 report writers? Also, did he consider option five: amend the Sentencing Act 2002 to introduce a threshold for provision of section 27 reports based on the seriousness of the offence?

CHAIRPERSON (Teanau Tuiono): Can I bring the member back to proposed new clause 3A.

Yes, and I am asking the Minister questions based on the answers that he gave to an earlier contribution. It just raises further questions for me because what the Minister was, I believe, using to justify what they are doing, and opposing the suggested amendment, in fact speaks to some of the options that were put in the paper. So my question is: did he give those options? He talked about cottage industry. He talked about Harry Tam. He talked about the quality of the reports. He talked about the outcomes on the sentences. I’m asking the Minister: did he give due consideration to any of the other options? And can he tell us why he thought none of those were relevant to the issues that he was raising?

I move, That debate on this question now close.

The question is that the Hon Duncan Webb’s tabled amendment, inserting new clause 3A, be agreed to.