Legal Services Amendment Bill

Good morning. The House is resumed. We’re on the third reading of the Legal Services Amendment Bill.

Let’s be really clear here. Amending the Legal Services Act 2011 to exclude section 27 reports from the legal aid scheme doesn’t stop offenders from being able to get someone to speak directly to the court on their behalf. It doesn’t stop someone from being able to provide a written statement regarding their background. But it does stop the cottage industry that writing section 27 reports has become, costing the taxpayer millions—over $7.5 million last year, up from $40,000 in 2017—while doing nothing for the victims of crime. I commend the Legal Services Amendment Bill to the House.

Thank you, Mr Speaker, for the opportunity.

ASSISTANT SPEAKER (Greg O’Connor): A five-minute call.

LEMAUGA LYDIA SOSENE: Thank you, sir. Labour opposes this bill. We heard yesterday and last night the Minister outline—which actually wasn’t much in terms of community engagement. Māori and Pasifika communities, Māori and Pasifika whānau, Māori and Pasifika offenders are not going to get the benefit of the section 27 legal funding when it is removed by this mean-spirited Government, who does not care about victims who require support. Of course we know that.

In terms of the judicial system and the sentencing judges of the judiciary, this report is not an excuse but it helps explain some of the offenders. And we know, in Pasifika whānau, in Pasifika families, the grief when some of our young people, who have gone down the judicial system—admittedly, for some of them, it is their own choice; however, many of our Pasifika families struggle in understanding the language and the culture that the prison system has.

Another thing is that Pasifika offenders require support from their whānau. They may end up in the judicial system and have caused some grief. However, what the report does do is it provides the sentencing judge with further explanations of mitigating factors, and the reason and the cause for that. The sentencing judge will appreciate that the section 27 report that is put forward by counsel is an extra explanation.

Let’s be very clear: this is putting funding and money over people’s lives. We heard some great contributions last night in terms of the system. We also heard the angst in the community with regards to the trauma. However, I want to just add in my contribution that Māori have specific tikanga that they follow, and so do Pasifika. We have far too many young Pasifika people—once they enter the judicial system, they spend a lifetime trying to get out of it. And also, some of the offending behaviour requires a better explanation to be put forward and considered by that specific sentencing judge.

In terms of the section 27 cultural report, some of the specific offenders have ended up in the judicial system due to petty crime and just poor decision-making; however, the section 27 report that they cannot afford to pay for, or their families, to provide the extra evidence before that sentencing judge is a lever that could be considered further.

For some of the young Pasifika offenders, they have had a life of crime, and, admittedly, they have made poor decisions. But the section 27 report is for those who require the legal funding to assist that specific sentencing judge to take in those factors of poverty, of not being able to have good English, of not being able to understand the reason why they’ve ended up being incarcerated. I know section 27 will still be there. We’ve heard a number of contributions that it is still in the system and is able to be put forward to the sentencing judge. But it’s only there for those who can afford it. So, in fact, for our Māori and our Pasifika and our poorer families in this society, it is a travesty that the legal funding will not be there to help and assist these families, particularly for those offenders who have ended up in the judicial system and need that extra help.

Labour opposes this bill, Labour does not agree with what the Government members have said in this decision of theirs—$7 million, that’s what has been outlined in the numbers that we’ve received—and it is a travesty that we are unable to help these offenders, for the sentencing judge to consider further and have it explained further. Thank you.

We must acknowledge the challenges that face offenders and many young offenders especially. There is a lot of help needed for them long before they get to the space of being in a position to offend. But what the Legal Services Amendment Bill wishes to do is simply to bring back section 27 reports to what they were originally intended to do, which was to allow family members and friends, people who knew the offenders, to speak to the report and give them support. It was never envisioned for authors to be paid a whole lot of money which is raised from taxpayers—to be provided—even with no direct connection to the families or the offenders. So we commend this bill to the House.

Thank you, Mr Speaker. I rise to take a call for the third and final reading of this bill, the Legal Services Amendment Bill, this morning. I want to start by highlighting for the House that this bill is being rushed through under urgency, and that the impact of this bill is going to be severe for those who are in the justice system. Why we know this is because numerous, numerous organisations have provided comments to the media, outlining their concerns about the proposal to scrap the legal aid funding for section 27 reports. That comes from the New Zealand Law Society, the Māori Law Society, the New Zealand Bar Association, the defence lawyers, former judges, and even a Supreme Court judge.

To quote the president to the Law Society: “Access to justice will be seriously limited with the proposed defunding of cultural reports”, with one report calling it a “racial weapon”. The Law Society went on to say, “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.” The New Zealand Law Society said that “this is a significant breach of fundamental rights”. So I want to start my contribution by outlining this.

Don’t allow the Government to downplay what they claim is a small change. As I spoke in the committee of the whole House yesterday, a small change, yes, but it has profound impact on the justice system. And this Minister of Justice should hang his head in shame. The reason Government are doing it is to save money. They don’t care about access to justice. They don’t care about a fair justice system. They don’t care about the tools that we have given to judges to perform their jobs. What they care about is saving money, and I think that that is abhorrent.

In another report, what we saw is that, in fact, defence lawyers are saying that this will increase court sentencing times and it will undermine judges’ ability to pass fair, accurate, and humane sentences. That is what the impact of this Government’s decision to scrap the legal aid funding of section 27 reports will have.

I want to talk to the issue about this being rushed through Parliament under urgency to deliver on the Government’s 100-day commitment. Fair access to equal justice and a fairer justice system—completely pushed to the side in their determination to deliver on an election promise. In this own Government’s regulatory impact statement, it says, regarding these time frames, that the proposals in this paper have been assessed in a significantly truncated time frame, that it has had limited ability to test the assumptions underpinning the problem definition and proposed response, to investigate and understand the intended or unintended consequences, to undertake consultation with Māori and stakeholders, and to consider a broad range of options. A shortened time frame to undertake this policy analysis means that none of that has been able to be done, and the scope of options has also been significantly limited. And the conclusion of the officials is that the Government’s 100-day commitment to end taxpayer funding for section 27 reports significantly limits detailed consideration of alternative options to limit or otherwise improve section 27 reports.

Now, in the debate last night, the Hon Willie Jackson asked questions around consultation. In the departmental disclosure statement, it points out that there has been no consultation with Māori. We know from the evidence in the Government’s departmental—oh, sorry—

Hon Paul Goldsmith: It’s called an election.

Hon WILLOW-JEAN PRIME: I’ll tell you what they say about an election, Mr Goldsmith.

Hon Member: The process is called democracy.

Hon WILLOW-JEAN PRIME: If I did go to one of these reports, it says here—

Shanan Halbert: Oh, that old line: democracy. Is urgency democracy?

Hon WILLOW-JEAN PRIME: Yeah, democracy—“even where policy promises have been made during an election, the Law Society expects to see robust policy work supporting their development and consideration of alternatives, alongside consideration of the wider implications. There may be other means of addressing what appear to be largely financial concerns and concerns related to the perceived impact of these reports on sentencing outcomes.” The Law Society said an election result does not provide the robust process that they would expect to see when you are making fundamental changes to something in the justice system.

Now, to quote the Minister last night, he said, “Given the urgency with which we’ve moved on this, there has not been formal consultation with different groups—with the legal community or with iwi—but it is something that we’ve flagged very carefully and clearly in our election campaign. We said we’re going to do it, and, lo and behold, we are going to do it.” So my concern is that the Government is rushing this under urgency. They have no respect for parliamentary process. They have no respect—only in the most significant of cases. They have no respect for the parliamentary process. They have no respect for the legal profession—no respect for victims, because, in your own statement, it says you haven’t been able to consult them. You haven’t consulted Māori, who we know from the evidence are disproportionately impacted on this. The Government’s own department, Te Puni Kōkiri, said it does not support these proposals.

We had a lot of—well, could I say a lot of discussion last night and questions and answers on the committee stage of this. The Minister, basically, came back to just defending the Government’s rushing of this through in urgency to “100 days; we must complete it within the 100 days”—totally disregarding whether we’re meeting any of our international obligations. And particularly, I discussed the International Convention on the Elimination of All Forms of Racial Discrimination—no consideration for that. No consideration for Te Tiriti o Waitangi, no consideration for the unintended consequences and costs that this would impose on the justice system.

So to those that may be tuning in to this debate this morning, I would say this Government is saying that it’s tough on crime, that it’s saving money, that it’s shutting down a cottage industry, but their own analysis provided by officials in December says that this is likely to increase the costs on the justice system. We tried to explore that last night—the Minister didn’t even engage on that—to increase the cost on the justice system.

So do not buy into their argument that this is a cost-saving exercise, that this has been unfair use of taxpayer money, when the evidence and the commentary provided from the legal profession—the experts, actually, in this field: the New Zealand Law Society, Māori Law Society, Bar Association, defence lawyers, former judges, and a Supreme Court judge—all say that they have grave concerns about the impact that this Government’s rushed policy to remove funding for section 27 reports will have on access to justice and on fair and appropriate sentences. That’s what this Government is doing; that’s what they are prioritising.

This is just politicking. This is just them and their arrogance, being absolutely determined to implement something within 100 days, with not even taking it through a proper process and inviting submissions from the experts from this. No. They know best—they know best. They don’t want to hear from anybody. Apparently, the new standard is if you campaigned on it and you won the election—I was just going to say, “Stuff all the parliamentary processes, we’re just going to do it.” I do not commend this bill to the House.

I’m pretty sure many of us in the House, as we know, have studied law. When I went through the practice part of the law component, I remember our lecturer saying that when it comes to sentencing, as a lawyer, you’ve got to put together a list of mitigating factors for the judge to consider when he or she is making a determination on sentence. So I don’t think it’s such a big ask for us to say, for our lawyers, let’s get back to the basics. Let’s put together that list of mitigating factors for our magistrates, for our judges to make their decisions. What the last day of kōrero has shown me is the extent to which some people in this House will go to defend criminals. It’s been astounding. So what we say here today is we commend—I commend—this bill to the House.