Legal Services Amendment Bill

Members, we now come to our final debate on clause 5. This is the debate on clause 5, amendment to Schedule 1AA of the principal Act, including the Schedule. The question is that clause 5 stand part.

This may be largely mechanical in many ways, because what it appears to do is make sure that the rush that everyone’s going to have in the next 14 days to get their legal aid applications in for these reports is managed in accordance with the rules, and that the commissioner, essentially, doesn’t turn down applications which were made in good faith, not knowing that this was in place.

As we come to the final breaths of this part of the debate, I do want to say that it’s disappointing that we didn’t really get a chance to talk about all of the different submissions that would have been made. Certainly, today I have received messages from the disabled community, including the neurodiverse community, for whom these reports are very important. And it may well be that there will be cases where people who have disabilities, including what are, in essence, invisible disabilities, will now be making applications and trying to squeeze them in to this small 14-day window to make sure that their providers can, in fact, get paid for the work that they’re going to do.

Whilst we talked about commencement, in fact, it may well be that we need a little more flexibility in this new Part 3 which is inserted into Schedule 1AA, because there is going to be a considerable bottleneck of work for the commissioner—or what, in fact, if you know how the organisation works, there’s grants officers that will, in fact, be doing this work under delegated authority.

So even though the clause applies simply before commencement, it may well be, and I wonder if the Minister would consider this, that a little more discretion is needed, because there may be people—and I’m looking at Willow-Jean Prime, who, obviously, is from Northland, where there are some more remote communities who, perhaps, the news doesn’t travel quite so fast, where there might be a sole practitioner in some of these smaller towns. Of course, we all know what it’s like to miss an email, and they may be merrily commissioning these reports or making arrangements for it, and it would be appropriate in those kinds of situations for the Legal Services Commissioner to say, “Well, look, in all of the circumstances, it doesn’t quite perhaps meet the exceptional threshold, but it’s a reasonable excuse for not quite appreciating that.” Because this is not the centrepiece of legal aid—this is off to one side. Despite the Minister’s protestations, this isn’t kind of the main grist to the mill for a legal aid lawyer. And missing an email from the Legal Services Agency with an update on these reports is quite easily missed.

So there’s a really good argument that, in fact, what we need in new Part 3 of the Schedule is to say, “The commissioner can appropriately consider an application as if this wasn’t passed where the conduct of the practitioner has been reasonable in all the circumstances.” Or perhaps where the oversight or the commissioning of this report is excusable in the circumstances. It might be that you want a higher threshold—I’d suggest against it. Exceptional circumstances is always a kind of tricky phrase. A kind of negligent but not outrageous omission would strike me as something which would be perfectly reasonable.

But, as I’ve said, I’m disappointed that we haven’t had a chance to go over some of the other people who have come to me and said, “I’d like my voice heard on this bill.” I do want to again mention the disabled community and the fact that the neurodiverse community often find themselves in the court. And we know that neurodiverse people are overrepresented in our prisons, and these reports are really important.

CHAIRPERSON (Barbara Kuriger): Dr Webb, this is simply about transition.

Yes, well, these people also will be affected by the transition.

CHAIRPERSON (Barbara Kuriger): I accept that, but please keep your message regarding them to the transition itself.

Well, thank you for your guidance, Madam Chair, but given that this has been rushed through the House without select committee process, I’m simply trying to make sure that my constituents and the constituents of all New Zealand’s voices are heard, both in respect of this new Part 3, which is important, but the transition is relevant and I suggest that a greater discretion is needed in respect of it. Thank you, Madam Chair.

Thank you very much, Madam Chair. Well, when I read this through, this clause 5 of the bill, it seemed to me that officials hadn’t been listened to right throughout the process. This was kind of like the ameliorating last hope of trying to have some kind of a transition from where these were funded through legal aid and then, suddenly, they’re not. There’s going to be a whole lot of different stages of legal process, of people undertaking work, and you’ve got a very short period of time. And I do think that this is going to cause some real hiccups in the justice system over the next couple of months, and we will see those reports, we will receive letters. I hope they take the time to write to the Minister of Justice, because just simply having—

CHAIRPERSON (Barbara Kuriger): Hon Andersen, the questions in this part are to the Minister, not to the officials, so please don’t—

Sorry. I said “to the Minister” you may want to ask it, so—the Minister may want to be very clear on the fact that if those people who have undertaken work, who have had that promise of work to be done—they will be at varying stages of that through the process. And so how that impacts upon someone who’s accused, how that impacts upon the victim, is going to be very interesting. It really concerns me that there has not been sufficient time for such a significant change to enable that transition to take place.

There is really a key part here, that there is one part in the Schedule that’s providing for the transition. It clearly states in clause 7(1) of the Schedule that “if, before commencement,—(a) the lead provider has obtained the Commissioner’s approval to incur a disbursement as part of a … legal aid;”. But if it’s not been approved or declined, a payment claim for respective legal aid services—my advice is that includes disbursement. I think in this particular area, the Minister should give consideration to a longer transitional period, because that short period of time to have that transition is insufficient for the legal profession.

No doubt there will be much more heard about this over the coming weeks, when the bill comes into force, when it receives the Royal assent, when a whole lot of people figure out this has happened—because they haven’t been notified and there’s no communications provided to lawyers, to victims, to offenders. They will have to find out through simply turning up at court and finding out that this is no longer occurring. To me, that’s not fair. That’s not fair to New Zealanders who have gone into a process thinking that this was a clear pathway, and that pathway has been cut off without clear communication.

So if the Minister would like to enlighten us—and my question to him is: what communications, whether through his own office or through the Ministry of Justice, have been undertaken in order to communicate that section 27 reports will no longer be funded? Where is this, how is this being communicated to the legal fraternity, to victims, to those people who are defence lawyers, to those people who are working in the courtrooms? What is the communications plan that has been put in is under way presently—to make sure that when you stop this, when it suddenly ceases to exist in 14 days’ time from the date of Royal assent—how can we be reassured that there has been some sort of a communications effort, so that all those people affected by this law change have in fact had the opportunity to turn their minds to it and prepare?

Thank you, Madam Chair. I have a short contribution to make on what is quite a technical part of the bill; these last transitional provisions in this new schedule inserted as a result of clause 5. So my questions are to the Minister of Justice: this bill is obviously passing through under urgency and we’re early in the year, and there’s a specific drafting mechanism, which is included in new Part 3 inserted into Schedule 1AA, which bolds the year “2024”. That is only, as far as I’m aware, used in bills in the House; it’s not something that appears in legislation once it’s passed. If the Minister could enlighten us as to why it’s bolded when it’s obviously—because of the Minister’s decision—going to be passed this year? Does the Minister, in fact, think that there could be some delay at some stage or introduce further amendments?

💬 Hon Rachel Brooking: It sounds like Tim van de Molen wants a call.

It does sound like it.

Tim van de Molen: Is the member happy with the size of the font?

Yeah, it’s quite interesting Mr van de Molen seems to have quite a lot to say on this bill but hasn’t managed to take a call.

Tim van de Molen: I did.

Well, not in the hour and a half since I’ve been in the Chamber. As you’ll be aware, the relevance to the question is a job for the Chair, which we have a very competent one in place, Mr van de Molen.

Anyway, my second question, which is also on technical matter, is: in new Part 3 inserted into Schedule 1AA, in clause 7, which has two subclauses (1) and (2)—in subclause (2) of clause 7, there is a provision for, essentially, claims that have been put before the commissioner but they haven’t yet been approved or deferred or declined, so it’s only relevant for a very short period of time, as I understand it as I read it. I’m happy to be corrected by the Minister, and I hope he does have the opportunity to respond to these questions. In that small two-week period—because there is a two-week period prior to commencement but after the Act receives its Royal assent—subclause (2) of clause 7 of this provision allows the commissioner to approve and decline, which I understand. So, obviously, if the law is not yet enacted, the spending can still be approved—that’s totally logical. It can also be declined—that is within the Commissioner’s discretion. But what does happen when it’s deferred? Surely it cannot, in good faith and good conscience, be deferred, because if it is deferred and the Act does then commence during that period of deferral, then the claim would automatically not be able to be fulfilled because the law would have come into place. So why is “defer” there? And if “defer” is there, is there some requirement for that deferral to be resolved prior to the commencement of this bill? So I would like an answer for that, please, if the Minister wouldn’t mind.

Well, thank you, Madam Chair. Just in terms of the question around the use of 2024, I don’t understand the point the member is making. So perhaps—it is 2024; that is the year we’re in and so that’s the year that we’re referring to.

💬 Hon Rachel Brooking: It’s in bold.

💬 Camilla Belich: Why’s it in bold?

Why is it in bold? That is a mystery to which there is no clear answer.

In terms of the second point that the member was making, the point is that there’s two steps in the process in the 14-day period: first, the commissioner gives approval to incur a disbursement. So if that happens, then after the 14 days, when the bill comes in, the commissioner can approve, defer, or decline the payment. So the payments could continue past the 14 days if, in this period, the grant for disbursement is approved, and that is the transitional period.

The other question was raised about the communications plan. The Ministry of Justice, of course, has a very comprehensive communications plan in place that will roll out the moment this bill is passed so that lawyers are made aware—everybody’s made aware—at the earliest possibility that it has passed and that there is a 14-day period in which they can seek to have a grant for disbursement if they’re currently in the system.

I will now come to the vote on the Schedule, where there is no debate. The question is that the Schedule stand part.

Madam Speaker, the committee has considered the Legal Services Amendment Bill and reports it without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

This bill is set down for third reading immediately.

Third Reading