Nash Stuart: Legal Services Bill — In Committee Speaker Recalled In Committee 
Nash Stuart: Legal Services Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17016] 
STUART NASH (Labour) 
: 
 I would like to talk about clause 8(3). This is in relation to when legal aid may be granted in criminal matters. It states: “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance” we basically have to go to schedule 1. I have a couple of questions and one of them is to do with clause 4(4) of schedule 1. It states: “Where an application for legal aid for a civil matter is made by a minor aged 16 years or over the Commissioner may treat the resources of the following persons as the resources of the applicant: (a) any person who under any agreement or court order is liable wholly or partially to maintain the applicant; or (b) any parent foster parent or step-parent with whom the applicant is living.” 
I wonder whether—let me give a hypothetical example—if a university student commits an offence and goes before the courts the parents’ income means that the student is not eligible for legal aid. I know that students do silly things sometimes. The last thing they want is their parents to know what they have done but this may fall under this clause. We can look at the definitions in schedule 1 as to when one can and cannot have legal aid. I will go to clause 2 “Meaning of income”. It states: “(1) In relation to an applicant for legal aid ‘income’—(a) means the person’s total gross income during the 12 months immediately before the application for legal aid”. I am not too sure where the income level sits but if we understand that 75 percent of New Zealanders earn under the average wage I am assuming that probably about 75 percent of New Zealanders are eligible for legal aid because they would probably come underneath that total gross income test. 
But if we go again to clause 2(1)(c) of schedule 1 it includes a benefit. If a person is on any sort of benefit then that is included in the income test except where the person is receiving an orphans benefit an unsupported child’s benefit a child disability allowance an emergency benefit payment or an accommodation supplement. Again for example I am wondering whether if those dreadful people we have seen in Christchurch who were looting etc. are on an emergency benefit they will still be eligible for legal aid if they are earning above the income threshold that is set here. Those are just a couple of anomalies I would not mind having answered. Also if one receives a special benefit or a disability allowance that is not counted in one’s income for that year when determining whether one is eligible for legal aid. 
Again under schedule 1 clause 3 talks about the meaning of disposable capital. It states: “(1) In relation to an applicant for legal aid ‘disposable capital’ means that person’s total assets after deducting the amount of any debts secured against those assets and after deducting—” the interest that a person has in a home equity and that sort of carry on. Again I am assuming this is the test that the former company director of the failed finance company used when that person’s lawyer put forward an application for legal aid that was turned down. I suspect that if it had not been turned down there would have been such a hue and cry that there may have been revolts in the street so that was not a bad outcome. 
But another interesting thing is that in clause 4 of schedule 1 the resources of a spouse or partner—or parents of a minor which I have talked about—are also counted in determining whether a person is eligible for legal aid. I quote: “(1) Any resources of a person’s spouse or partner must be treated as that person’s resources unless—(a) the person is living apart from his or her spouse or partner; or (b) the person and his or her spouse or partner have contrary interests in the matter …” . With regard to “spouse or partner” I am assuming again that when we talk about a partner we are talking about a legal definition of “partner” as in the matrimonial property Act or something so I assume that the partners have to have been together for more than 2 years. It would be dreadful for example if someone had hitched up and moved in together and then 2 months later after being together for 3 months this person was up before the courts and could not get legal aid because it was determined that his or her partner earned above the income threshold. I am quite curious about the test of who a partner is. We all know what a spouse is because that assumes marriage but I am just a little bit unaware where the test for a partner would kick in.