Robertson Grant: Legal Services Bill — In Committee Speaker Recalled In Committee 
Robertson Grant: Legal Services Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17023] 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 I will go back to clause 8 and there is a particular part of clause 8 that I want to refer to in order to help out Mr Quinn which is clause 8(3): “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance the Commissioner must except as provided under section 9(1) 
have regard to the applicant’s income and disposable capital as set out in Schedule 1.” Mr Nash did an excellent job earlier on of working through some of the issues within schedule 1—for instance the resources of a spouse or partner. 
Clause 5 of schedule 1 is about resources relating to Maori land. The clause describes an applicant as a person applying for legal aid and how resources relating to Maori land will be brought into account: “The income of the applicant includes any rent derived from Maori land or interests in Maori land.” As Mr Mallard pointed out earlier on it is perhaps fair enough to look at rent derived from Maori land as being part of income derived and as something legitimate to be tested against to determine whether one has sufficient means or meets the insufficient means test. 
Hon Trevor Mallard 
: But if it’s put in a trust then it doesn’t count. If it’s Maori land then it does. 
GRANT ROBERTSON 
: That is right. Then we go on to clause 5(3)—this is the point—which states: “The disposable capital of the applicant includes Maori land and any interests in Maori land unless the application is made in respect of proceedings in the Waitangi Tribunal;”. That is the point. Now Mr Quinn tells us that that disposable capital is not disposable. Why then is the capital being described in the schedule as disposable capital if it is not disposable capital? That problem has been raised by members on this side of the Committee. Mr Quinn has gone very quiet now but the fact of the matter is that clause 5 of schedule 1 actually needs some explanation. Otherwise we are left with the situation of capital that Mr Quinn has told us is not disposable being considered disposable. That is part of schedule 1. I just wanted to help Mr Quinn with that explanation so he understands the issue being raised by members on this side of the Committee. 
But I will go back—and it is the nature of these kinds of discussions—to something Kevin Hague said. He raised with us earlier the question of what under clause 8(2) will be considered by the commissioner when he or she is obliged to consider whether the interests of justice merit someone getting legal aid. Kevin Hague raised some very interesting points as he worked though clause 8(2) around some of the issues that are supposedly part of the question of whether justice requires a person to receive legal aid. 
In my earlier contributions I mentioned that there was obviously a balance within legal aid. The most important principle is that people with insufficient means have access to justice and I discussed that issue in my first contribution. But there is a balance as to how we define that access and how we make sure that it involves a manageable amount of resources for the taxpayer and that legal aid is given to those who genuinely need it—and I talked about the test around withdrawal. But I think the question Mr Hague raised is very significant. For instance what is the relationship of “whether the applicant has any previous conviction;”—clause 8(2)(a)(i)—to whether the interests of justice are being served? That is a very legitimate question. In most cases—in jury trials for instance—juries are not made aware of previous convictions so why are we now using previous convictions as a determinant of whether a person receives legal aid? 
Those are important questions and it would have been good to hear from the Minister about how these provisions have come about. They may well have come over from previous legislation. I am not necessarily arguing that these provisions have been introduced brand new by this Government but they do raise the important question of the balance of access to justice for those with insufficient means with the ability of the taxpayer to be able to provide the resources that are needed. Obviously there do need to be tests but the tests under clause 8(2) require a bit more analysis and a bit more explanation because they start to provide limits. 
In relation to the issue of balance not only do we have in this bill the ability for legal aid to be withdrawn—which I mentioned in an earlier contribution—but we have the counterfactual to that which is that there are now provisions namely clause 51(7) that allow applicants to apply to the Legal Services Commissioner for review of a decision. An important part of the process is review of decisions and making sure that we have that balance.