Parker David: Legal Services Bill — Second Reading 
Parker David: Legal Services Bill — Second Reading 
[Volume:670;Page:16758] 
Hon DAVID PARKER (Labour) 
: 
 I agree with much of what the Minister said in his address on the Legal Services Bill. The Labour Opposition supports this bill. It is a timely overhaul of the way in which legal aid is provided and it will have a particular impact in respect of criminal legal aid. The inquiry by Dame Margaret Bazley did find that there was some poor practice. 
In the Justice and Electoral Committee we heard from retired High Court Justice Hansen who used to be the executive judge for the South Island. He is very experienced and has been brought in by the Government to try to oversee improvements to some of the legal aid procedures in New Zealand. One of the things that he told us related to the preferred lawyer regime that we currently have. That means that it is the right of defendants to choose who should represent them even if that representation is being paid for by the Crown. This bill changes that practice so that for lower-level offences—those in categories 1 and 2—defendants will be effectively allocated a lawyer in most cases. From memory there is discretion for the judge on occasions to override that. Mr Quinn might be able to correct me on that point if I am wrong. But I think that was to be retained because there are some occasions where an accused has a history. He or she might have mental illness problems. There can be problems known to a previous lawyer and that knowledge can facilitate the conduct of the person’s defence and also facilitate the administration of justice generally. So there needs to be some flexibility around that issue. 
None the less we were convinced by what we heard from officials submitters and Justice Hansen that by and large the principle that one should allocate these cases to lawyers who are on the legal aid roster—rather than letting people choose their own lawyers—is a good thing. We heard about cases where the existing rules are effectively being abused by a small minority of lawyers who manage to line up for most of the cases despite according to Justice Hansen and some of the other people actually sometimes being the least competent of counsel. Just because those lawyers are good at running the relationship with the accused person that does not necessarily make them good lawyers even though they are good at convincing their accused clients that they are the person for them. We were convinced at the select committee that making that change to the existing rules was necessary. 
I must admit I was quite shocked to find out how much some people were being paid by the State for the provision of legal aid services in relatively minor cases. I think the amounts that were being earned were sometimes more than a quarter of a million dollars per practitioner. That is a lot of taxpayer money being spent on a relatively small number of people for the provision of legal aid services. It did seem that some of the practices that had been identified by Dame Margaret Bazley and that had been referred to by the officials and by Justice Hansen needed to have some response made. This bill seems to be an appropriate response to those practices. 
One of the other areas that we heard was a problem was that if someone is alleged to be incompetent then effectively a complaint can be made by or to the Legal Services Agency but then it gets sent to the district law society. The society does not really have control of the funding functions at the legal aid end of the equation so there has been a disconnection between the disciplinary processes and what should be funded through legal aid. Quite often there could be poor practice of the sort whereby the Crown in paying the bill would say that person should not be engaged again. But under the existing rules it was very very difficult for the Crown to actually stop paying incompetent counsel. 
The remedies that were left were effectively a sledgehammer because the Crown would just about have to go to the Law Society and say the person ought to be struck off. That could have been too great a penalty for the behaviour that was being complained about whereas it would have been perfectly appropriate for the legal aid people to say they did not want to engage that particular counsel again. Despite the common-sense nature of that proposition which I think I have just put the system did not allow that to happen. The new system will now allow for a better monitoring of complaints about quality. It will allow complaints to go to the controllers of funding through the legal aid system rather than being treated as a disciplinary matter for the Law Society to attend to through its route. 
I am sorry but I should have mentioned earlier something else in terms of the preferred lawyer scheme. We heard from Family Court lawyers that it was important that continuity be maintained particularly in respect of issues like counsel for the child. Where there are disputes that relate to children it is desirable that the same counsel be appointed to represent their interests. At least at the moment it is provided for in the family law area that there is still choice on the part of the person who needs a lawyer as to whom that person appoints as the lawyer even if the lawyer is being paid through legal aid. Legal aid is at least theoretically a loan rather than a grant and it is meant to be repaid over time although obviously people who are on the lowest income generally do not end up paying much back. 
I also agree with the comments made by the Minister in respect of the clarification provided in the bill that legal education is something that can be funded through the new authority. Community law centres were concerned that that was not the case. I think that at the committee too although we agreed with that we also had a general view that it is important that legal aid services do not cross the line from education into political polemic. I have on occasions seen legal aid centres that were set up primarily to provide legal advice primarily to people who would not be able to access a lawyer for small legal problems. Sometimes centres tend to involve themselves in political causes rather than legal causes and that is I think a line that should not be crossed. Hopefully through this legislation we will enable the funders of community law centres to appropriately fund education as well as legal advice services whilst not crossing the line into funding political campaigns. And by that I do not mean political party campaigns; I mean campaigns for change which I do not think are generally within the centres’ primary purpose. 
In relation to another minor change that was made the Law Society was concerned that some of the language of the bill implied that some of the work now conducted by lawyers might be carried out by non-lawyers. That was ambiguous in the legislation so we tidied that up. Because court administration and the rights of the accused and defendants are best protected by lawyers we wanted to make it clear that we were not trying to remove the requirement that lawyers appear for the accused. 
The Regulations Review Committee had concerns about some of the exemptions to the regulations that were able to be brought about by those who would be administering the scheme. We looked at those carefully and on reflection we thought that the powers that were being conferred were appropriate. 
We heard from Justice Hansen in respect of the preferred lawyer scheme. He actually thinks that we should have a roster for even more serious cases. He thinks that the case for defendants to have a choice of lawyer in respect of category 3 and 4 criminal offences is not strong and I think we may have to revisit that issue in the future. 
Another area that I think has yet to be tidied up concerns legal aid in criminal appeals. It used to be the case in New Zealand that the gatekeeper for criminal appeals was effectively the Court of Appeal. But a Privy Council case decided that that was inappropriate and that the same judges who would be considering the merits of an appeal ought not to have a hand in the decision about whether the accused is granted legal aid for the appeal. I can understand the logic behind that but in my view someone should be a gatekeeper and at the moment we effectively have a position where the State takes an obligation upon itself to fund virtually every appeal on a criminal matter where someone wants to appeal without regard to the merits of the appeal. Although I think it is very important for an accused person to have access to justice and have the ability to appoint a lawyer I am not convinced that that means the Crown should always have to fund every criminal appeal even if it is not meritorious. I think that if there is not some sort of scrutiny of the merits of appeals more appeals can end up being funded through a criminal aid system than would happen if people did not have legal aid.