Legal Services (Distribution of Special Fund) Amendment Bill

Members, we come now to our final debate. This is the debate on the amendment to section 94, “Secretary may enter into contracts with community law centres”. The scope of this bill is very narrow and is focused on the entering into of contracts with community law centres. Therefore, I’m ruling Vanushi Walters’ amendment for the secretary to consider the need for culturally appropriate services when contracting for community legal services, while within the scope of the bill, should be debated within this clause for debate, because it is better considered as a new subsection (2) to section 94.

Thank you, Mr Chair. I’ve been looking forward to debating clause 4 and speaking to my amendments. We will turn to the first one. I made the point in the last clause that my sense was that, actually, the amendments made things less clear, rather than clarifying, so hopefully these amendments will be received well by the Minister for the Environment. The first one is in clause 4, to replace new section 94(1)(a) with “(a) purchase community legal services and/or”. The current clause has “(a) purchase community legal services:”—little colon—

Hon Dr Duncan Webb: Should that be a semicolon?

VANUSHI WALTERS: Ha, ha! And then it’s got paragraph (b). What that might mean in practice is that, for contracts to comply with the Act, there would need to be two separate contracts, depending on whether community legal services were being contracted for or whether services to fund, facilitate, or otherwise support the provision of community legal services was being accommodated for.

If the argument is that this is about contracts for a community law centre on the ground and what we’re wanting to do is cover some of their background support costs, etc., then I think what we absolutely would need—for clarity’s sake, given that is what this bill is claiming to do—is to just adopt that little “and/or” to make sure we are clarifying this and make sure we don’t need to come back and use another urgency session to add “and/or” maybe in a couple of weeks’ time. This is getting so comical that I really couldn’t put it past this Government to do something like that. Please, to the Minister, would she please consider doing that? I believe that that was a recommendation from the Law Society—another very capable group of lawyers. They saw that the intention was for this bill to bring about a whole lot of clarity, and they’ve helped us out with that suggestion. I’ve put it in an amendment, and I think that that would be prudent for the Minister to accept.

Now, the only reason why you would leave it as-is is if the intention was not to cover that gap of community law centres on the ground, but the intention was to ensure that support services of a different kind were being covered and that those support services exist in a different contract. What I’m thinking, essentially, is a body like Community Law Centres Aotearoa, for example, who may or may not be engaged in direct legal services but who certainly coordinate and provide support and ensure that there’s coordination between the different community law centres—if the intent was to cover those in separate contracts, then I can absolutely see that you would want to keep them separate. But, from what the Minister has said thus far and from what I’ve seen in the papers, that’s not the intent. The intent is to cover community law centre contracts on the ground. This is centres like YouthLaw; this is centres like Māngere. Māngere, interestingly, has a lot of history as one of the earliest community law centres as well. I understand David Lange was quite involved. He was the MP for Māngere at the time and was very involved in the setting up of that community law centre. I don’t think they could have imagined the impact and the coordination that community law centres now have across the country.

Initially, when they were set up, it wasn’t a Government initiative to set up community law centres across the country in a kind of fair and equitable way. They arose because individual advocates were advocating for those centres from the ground up. Contracts were quite different. Again, the way they started, a lot of it was direct legal services - heavy, and then that administration across community law centres really grew in the background.

I’ve only managed to just speak to my first amendment and I have two more. As you’ve indicated, the third has been more suitable to address in this clause, so I really would like to continue and I will be seeking the call to do that.

Also on Māngere, I would also say that Judge Becroft, our former Children’s Commissioner, was highly involved not only in setting up Māngere but actually also in setting up YouthLaw. If you look at the history of community law centres, you’ll find that there’s a string of similar people who set up those first initial community law centres who then went on to seed other community law centres as well, and Judge Becroft is one of those people who, of course, along with Robert Ludbrook, then set up YouthLaw. I knew Robert very well and had the sad—Robert passed not long ago. Well, it’s probably last year now, but I attended his funeral. It was extraordinary the reach that he had in terms of community law, but also into other parts of the voluntary legal advice sector. There were older members of the Black Panthers there as well, who talked about how Robert had been pivotal in terms of providing advice to them.

This idea of providing free legal services sprung out of lawyers just kind of doing it. Then the architecture came up in response to grassroots contracts that were negotiated with then the Legal Service Agency. You can see how administration was really at the back of everyone’s minds. Again, I think if we’re going to get it right this time in terms of those support services, let’s do it right. I do hope the Minister agrees with that first proposal. Moving to the second proposal.

CHAIRPERSON (Greg O’Connor): And probably the third one in this.

VANUSHI WALTERS: Moving to the second one, which is also on clause 4, this one is to replace new section 94(1)(b) with language that says, “fund matters that enable, facilitate, and otherwise support the provision of community legal services”. This one was a suggestion directly from Community Law, because they didn’t believe that the language the Government had adopted was clear. Again, this is just comical.

Again, you’ve got a proposal from—sorry, it was a proposal from the Parliamentary Counsel Office in response to what Community Law had said at the Justice Committee. You’ve got a proposal directly from the entity who you’re trying to help out, you’re trying to clarify the scope of their role, and they’ve gone, “Here’s what we’d like you to say.” You have Parliamentary Counsel Office who draft the language for that. It seems a little odd to me that we wouldn’t then include it within the bill. Again, I would say we don’t want to be here, back in urgency, doing this again for clarity’s sake.

The last amendment tabled is what I had proposed would be a new clause 5, but on the instructions of the Chair, I understand that it would be more suited to be included as part of clause 4. I’m happy for that to be the case. That is to insert a new section that “the Secretary must consider culturally appropriate services when contracting for community legal services.” It further says that “when exercising the power under section 94(1), the Secretary must consider the need for community legal services that are culturally appropriate for all parts of New Zealand society, including kaupapa Māori services.” Community Law has, since I was there, before I was there, and post, had kaupapa Māori community legal services with increasing growth. This is just an ask that we embed that within the statute to recognise that it is incredibly important that that’s explicitly there.

Many years ago, community law centres were told by the former National Government that there would be potentially many fewer community law centres. It created this sense of competition for contracts, which I think really disadvantaged the sector. Eventually, we moved past that and there was a lot more cooperation, in my view, under a Labour Government. But, again, I think, when you have statutory direction about what is protected and what the expectations are, then it makes for a sector who can cooperate and plan together much more effectively. Thank you.

I note and acknowledge the suggested proposed amendments from the member. I can clarify for the member that the current drafting denotes that contracts can be made for either or both of the purposes stated in the new section 94(1)(a) and (b). The proposed amendments from the member aren’t necessary. Thank you.

Thank you, Mr Chair. I have, actually, a really quite important question, and then I have a request. The question I have is: has the Minister or her officials turned their mind to the validity of pre-existing contracts? Now, I have an tabled amendment—which I think is on the Table; certainly, it’s been delivered to the Clerks—which proposes, in clause 4, adding the following new subsection which would say: “all contracts entered into by the secretary to fund, facilitate, and in other ways support the provision of legal services are valid regardless of when they were entered into and, in particular, whether or not they were entered into prior to section 94(1)(b) coming into force”.

If this is a tidy-up, which you’re saying it is, and there are contracts out there—because the problem is, as I understand it, and I was talking to my colleague Camilla Belich about this a moment ago, “legal services” is defined in the Act, and it’s defined, arguably, relatively narrowly. There’s an assumption, if you use the word “legal services” when you’re talking about contracting, that you’re using the defined term. There are exceptions to that, but that’s the general interpretive approach. If you’ve done that and you’ve entered into these contracts and the money’s been spent on support services and professional development and all these other things, then there’s a question about whether the money was actually spent in breach of the contracts, because they were for legal services. That’s the first thing, and I’d really appreciate if the Minister could let us know—perhaps take some advice and say, “No, there is no problem”, or “There is a problem, but we don’t care about it”, or “There is a problem and we can expect another bill to fix that very shortly.”

The second question is this—because you’ve got Community Law Centres of Aotearoa saying that, in fact, this bill’s not necessary on their reading of the law; you’ve got the New Zealand Law Society saying, as I understand it, pretty much the same thing, and they’re happy to provide the illegal reasoning; but you’ve got a bit of a black box when it comes to Crown Law advice. We’re all scratching our heads thinking, “Well, they’re seeing something we can’t see.” For something as innocuous as whether this amendment in clause 4 is needed, it will be really useful to provide the Crown Law advice. For something like this, it’s not top secret; it’s not some big issue. It’s just, “Well, we’ve got to this position for the following reasons.” It would be really nice to see that—because, although I accept that my feeble mind isn’t up to the might of Crown Law, some of my colleagues are pretty clever, and I respect the Law Society and Community Law Centres of Aotearoa to get it right. At the moment, Crown Law’s the outlier here. It’d be great to see their advice.

That’s two questions. Certainly, the first one is important: do existing contracts breach this legislation; and, if so, what’s being done about it? The second is: can we have a squiz—a bit of a gander—at the Crown Law advice?

To answer Dr Webb’s questions from his multichoice that he gave me, there is no problem; the contracts remain valid. To your second question, no.

Thank you, Mr Chair. I want to seek the Minister’s guidance or support on one of my amendments to the bill. This is an amendment that is dated 4.36.01.

Essentially, the current wording of section 94(1)(b), inserted by clause 4 of the bill, states: “fund, facilitate, and otherwise support the provision of community legal services.” As some of the other members have mentioned, how it interacts with what is now section 94(1)(a), inserted by clause 4 of the bill, is it has a lot of comparables. My amendment over here clarifies—and this is, again, a recommendation by a submitter and particularly by the Community Law Centre Aotearoa, who deal with this every day, and they are one half of this contractual agreement—that rather than saying “fund, facilitate, and otherwise support the provision of community legal services”, it’s better to say the words: “fund functions that enable, facilitate, or support the provision of community legal services”.

I think the idea that the function aspect of this particular section is incredibly important. Otherwise what you are seeing is that the Secretary for Justice, in fact, then is logged into a contractual obligation to not just fund but also facilitate and support provisions of community legal services. I don’t know if it’s the intention of the Secretary to also facilitate such provisions. Again, when we are looking at something like this, we’ve got three consecutive verbs with a very nice use of an Oxford comma, but, again, I don’t think that is the intention of this bill. My recommendation is to clarify that the secretary is only funding the function, and the facilitation of the support of the provision of the community legal service remains with Community Law Centre Aotearoa. I want to seek the Minister’s guidance on whether she will support my amendment.

Thank you, Mr Chair. Just a short call from me, really, in response to some of the comments that the Minister has made in response to Dr Duncan Webb’s issue that he raised. The Minister—and you can correct me if this is incorrect—seemed to say that there’s no problem with the contracts and that they remain in place. If that is the case, then what is the purpose of this bill? As I understand it, the entire purpose of this bill is to secure the contractual arrangements moving forward. Dr Duncan Webb’s question was: if that’s correct, then surely we should ensure that the previous spending on contracts is also not going to be affected by the fact that this change allegedly needs to be made?

I think it’s made in good faith; it’s a helpful suggestion. If there is genuinely an issue with previous funding, then something should be done to ensure that that funding isn’t challenged or that the contractual arrangements that happened in the past were made in a way that was consistent with the law. If it wasn’t, then that’s problematic, and if what the Minister said is correct, then why are we making this change?

I move, That debate on this question now close.

Vanushi Walters’ tabled amendment to clause 4 amending paragraph (a) is out of order as not offering a serious alternative form of words.

Vanushi Walters’ tabled amendment to clause 4 amending paragraph (b) is out of order as not offering a serious alternative form of words.

Dr Lawrence Xu-Nan’s tabled amendment to clause 4 amending paragraph (b) of section 94(1) is out of order as not offering a serious alternative form of words.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4 inserting new subsection (1A) be agreed to.

The question is that Vanushi Walters’ tabled amendment regarding the need for culturally appropriate services be agreed to.

Madam Speaker, the committee has considered the Legal Services (Distribution of Special Fund) 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