Legal Services Amendment Bill

Members, the House is in committee on the Legal Services Amendment Bill. We start with clause 1; this is the debate on the title. The question is that clause 1 stand part.

You know, it’s traditional, in amendment bills, to be a little more descriptive than the “Legal Services Amendment Bill”. In fact, I know there are a couple of Amendment Papers which suggest descriptions that might be more apposite. It may well be that simply removing funding for section 27 reports would be one of those, because, of course, that’s what it does, and it would be good just for the legislative record for that.

But if you want to have something a little more descriptive, you would say what this bill really does. Of course, it does a number of things, but one of the things it really does—and I’m hoping to have perhaps a more substantive discussion with the Minister later—is it makes sentencing harder for judges. So my tabled amendment, which is marked “B”, actually identifies that by inserting it in brackets: “this legal Act is the Legal Services (Making Sentences Harder for Judges) Amendment Act”.

I say that because these section 27 reports—and in another speech in this House, I pointed out that Justice Joe Williams of the Supreme Court said that context is essential. You can call these “cultural reports” if you like, but what they actually are is just contextual reports, placing the offending in the context of family, of community, of culture, and, importantly—and I’ll come to this a bit later—of victims. If judges don’t have that information, it makes sentencing harder. Actually, judges will still try and do their best. They will still try and glean the information that they can from wherever they can, and that’s going to be a challenge.

The regulatory impact statement points out that, in fact, the likelihood is that this bill will have the exact opposite effect of the Government’s intention, in terms of sentencing being more effective and more efficient and more cost-effective. That’s just another way this is making sentencing harder for judges.

So my suggestion is that we just call it what it is. I’m hopeful. I’m not confident, but I’m hopeful that sentences won’t inappropriately increase, but it’s hard to say what will happen. I’ll tell you what will happen is that sentences will bear less relationship with the identity of the offender and the offending, because the judges won’t know, because it’s going to be harder for them to get that information.

So this is a situation in which the title of the bill, the “Legal Services Amendment Bill”, it’s just not really good, and I’m surprised the Parliamentary Counsel Office has it there. I’m loath to criticise them, but it would be nice to have had something a little more descriptive.

Now, the Minister may want to table his own amendment, which doesn’t have quite such a pejorative suggested addition, but nevertheless gives the reader—someone flipping through the statute book, as we all do—a much better indication of exactly what’s going on. But I do think that my proposed amendment, the “Legal Services (Making Sentences Harder for Judges) Amendment Act 2024”, is an accurate description of what’s going on now.

Now, I won’t use my full time, because I’ll come back to a number of other amendments I have and questions I have for the Minister in the wider debate.

Thank you very much, Mr Chair. I’d like the opportunity of speaking in support of the tabled amendment made in the Hon Dr Duncan Webb’s name. I do agree with the honourable member that the Minister of Justice might want to consider some alternative wording, but it’s important that he responds to the premise in the proposed change, which is the fact that this bill should reflect what it does, and that is: making the work of judges more difficult when they are weighing up how to deal with someone who has offended.

I think it’s really important to note that there have been some good comments made publicly in relation to this bill making it a lot harder for judges. One, in particular, is justice advocate Sir Kim Workman. He specifies that when a judge reads the report—this is the section 27 report—that they actually realise that this person is not only an offender but a victim, and that the circumstances that they’ve been brought up in and have not been always within their control. The other aspect of it is that if you put a person in prison for an extended period of time, you can almost guarantee they will emerge as more dangerous and more of a risk to public safety than they were beforehand.

So those were the words of Sir Kim Workman, specifically in relation to what the job of a judge is and the ability of that judge to have all of the information available to them when they make that decision. The problem that we are addressing with this amendment is that if we take away some of that information that is made available to judges, then you narrow the scope of how the judge can weigh up what’s the best way to not only prevent this person from reoffending but also prevent more victims from being created within New Zealand.

So I think it’s only right that we should hear from the Minister to understand his rationale for the fact that this bill narrows the scope, narrows the availability of information that is laid before judges when they are making those very important decisions for our community.

Well, I thank the two members for their suggestions about names for this legislation. The Government has named it the “Legal Services Amendment Bill” because it amends the Legal Services Act, and we think that’s appropriate.

I invite the Minister to perhaps use his creative instincts—I know that he holds a related portfolio. I know there’s another tabled amendment in the name of my friend Ginny Andersen, because this tabled amendment actually also goes to the heart of the purpose of this bill. This is about legal aid, and legal aid is for poor people, and this is removing access to funding for reports from poor people. So rich people can have them because they can pay; poor people can’t. Now, that sentence is perhaps a bit lengthy. I think no good drafter would be quite that verbose, so that’s why the proposal in this tabled amendment “A” is to call the Act the “Legal Services (Removing Access to Reports for Poor People) Amendment Act 2024”.

In a nutshell, that’s what this Minister is doing. I’ll be quite frank, I find it a repugnant thing to do. But let’s call it what it is. People who can’t pay for these don’t get them but people who can do. “Access” is a good word to use here because it ties in with the concept of access to justice, a concept that doesn’t seem to be one with which this particular Minister of Justice is particularly familiar with.

The suggestion that this isn’t about access to justice because it’s an evidential report of some sort makes no sense. This is as much a legal service as anything else, and so let’s just call it out. This amendment bill removes access to these important sentencing reports for poor people. So, Minister, I would challenge you. Unless you can be a little bit more poetic in there perhaps, let’s call it what it is: stuff the poor people; they can’t have these reports. This bill should be called the “Removing Access to Reports for Poor People Amendment Bill”.

Thank you, Mr Chair. I want to take a call in support of the tabled amendment to the title of this bill. I was going to suggest that it be the “Non-legal Services Amendment Bill” because, by taking away access to section 27 cultural reports, there is a large group within our society who are not going to be able to access section 27 cultural reports.

I want to support and endorse the comments of my colleague who has spoken previously to me because, as I highlighted in my contributions in the earlier readings of this legislation, I pointed to the fact that affordability is a particular issue for many in the justice system. I pointed to the fact that who will this disproportionately impact, and what we know from the regulatory impact statement and what we know from commentary regarding this is that this will disproportionately impact Māori, who are, sadly, disproportionately represented in the criminal justice system.

To support that, I want to refer to an article where the Law Society said that the withdrawal of funding “will significantly limit access to justice”. So I’m speaking to my point that this might be the “Non-legal Services”—the Minister is just yawning there. I’m sorry if I’m boring you, but this is important for us to discuss and debate this afternoon. What I was saying was that the New Zealand Law Society Te Kāhui Ture o Aotearoa said that the withdrawal of funding “will significantly limit access to justice. … With funding for these reports removed, the only way a person facing sentencing will be able to access them is by paying privately. Those who can afford this would then have a greater level of representation in the Court than those receiving Legal Aid. That is a significant breach of fundamental rights.”

So I support the tabled amendment—sorry, if the honourable member can just point me to; oh, there it is—where the proposal is that it be called the “Legal Services (Removing Access to the Reports for Poor People) Amendment Bill”. Can the Minister please speak to the points that we have raised about how he believes that this change will not impact on those who cannot afford to pay for section 27 reports?

Thank you, Mr Chair. I thought I’d better take a call on this amendment, given it’s in my name. I’d just like the record to reflect also that we really didn’t get any answers back from the Minister in relation to our first suggestion to the fact that giving judges less information—I still think it’s an important point if this bill is proceeding through all stages under urgency and there’s no opportunity for members of the public to be able to submit, I think the very least the Minister could potentially do is to have a go at answering some of the questions that we’re putting forward, or at least explaining as to why these ideas aren’t being taken up. It’s pretty tough for members of the public to watch legislation being made at pace without any open, democratic access to submit or have a view put forward on these ideas. So, from this side of the House, we would heartily encourage the Minister to engage on these questions, because the general public do want to have some answers because it directly affects them.

To the point of my proposed amendment, which is that this Act replace clause 1 with “This Act is the Legal Services (Removing Access to Reports for Poor People) Amendment Act 2024”. This goes to the point that if you want one of these section 27 reports going forward after this legislation has passed, then you have to pay for it. So it is a fiscal barrier to people accessing justice. If there are key factors that need to be brought to the judge’s attention, the most effective way of doing this is through those section 27 reports. And by putting a fiscal barrier in here and requiring anybody who wishes to have one of these to go and privately fund them, that is not fair. It is not fair to New Zealanders, and it is not fair in order for the full ability to understand how this person’s rehabilitation—understand how this person can stop offending, that is prevented from even happening because if they are unable to pay for this, then they are, effectively, being denied justice. As a Government, to deny people access to justice is pretty fundamental. So I believe that the Minister does need to explain why he is placing a fiscal barrier to those New Zealanders who are unable to pay for these reports, and therefore preventing them from receiving fair access to justice.

I think it’s also important to note the implications of this bill for certain demographics within New Zealand. As we do know, there is a disproportionate representation of Māori within the criminal justice system. These reports do provide a real opportunity for people to be able to have a range of factors brought to the courtroom and brought in front of the judge, and you are disproportionately affecting one demographic within New Zealand, and that is also unfair. We know for a fact that it is already difficult for Māori to access justice—we have many reports demonstrating that. And it is my view that this piece of legislation adds to that weight against iwi Māori and weighs against their ability to access justice and get fairness in front of our courts.

I understand that there’s some political posturing going on in terms of saying you’re going to be able to save taxpayers a bunch of money, but, at the same time, if you’re chucking up their petrol taxes a whole heap, why don’t you just give Māori fair access to justice?

Ms Andersen, narrower, please.

Members are raising the policy issues of this bill, and I’m very happy, and the Government is very happy, to debate the policy merits of this bill, which will be appropriate in the clause 4 debate that we have.

What we’re doing at the moment, for those tuning in to listen to Parliament, is simply a very brief debate on the title of the bill. The title that the Government has given the bill is the “Legal Services Amendment Bill”, and that is because it is a bill that amends the Legal Services Act, and that makes perfectly good sense. We can use up an hour or two of time coming up with silly names on the other side of things, but if we want to debate the substance of the bill, we can move to clause 4, and I’m very happy to answer any questions on the bill at that point.

But, in terms of the title, we’ve got an obvious title. It says what it does, and I don’t think I need to engage in a long exercise of creativity, such as Duncan Webb suggests.

Well, before we do move on—I mean, it was a little dismissive of the Minister, which is disappointing. But in terms of the tabled amendment by the Hon Ginny Andersen, I do want to make it clear—and, look, it’s kind of circular: “This amends the Legal Services Act so let’s call it the Legal Services Amendment Bill.” It’s still not descriptive. We know that there’s many amendments to that Act, and they’re indistinguishable from each other. But this is about poor people, because this is about payment for reports, and these reports cost between about $1,800 and $2,500 each. As I said in an earlier debate—

💬 Joseph Mooney: Used to be 800 bucks—they’ve gone up a bit.

As I said in an earlier debate, your children are fine if they get into a bit strife because you can, no doubt, afford on your MP salary—as can I—these reports. But here, this is saying what it really is: this is saying that poor people don’t get access to justice and they don’t have access to these reports, because whether it’s $800 or $1,800 or $2,200, that’s too much for a lot of people out there who are on very low incomes indeed. So I’m pressing on this one because I think it’s a really important point. I do want to put on record that these reports, you know, they’re not $10,000 reports—they’re not some forensic scientist’s report; they’re a report about family context, victim context, cultural context. They have been recognised as really useful and they’ve been recognised not as making for lower sentences, but making for better sentences—these are sentences that are a better match for the offender, for the whānau, for the offending, and for the community. So let’s call it what it is: it’s the “No Access for Reports for Poor People Bill”.

I move, That debate on this question now close.

The Hon Ginny Andersen’s tabled amendment to clause 1 is ruled out of order as not being a serious amendment.

The Hon Dr Duncan Webb’s tabled amendment to clause 1 is ruled out of order as not being a serious amendment.