Little Andrew: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeLittle Andrew: Legal Assistance Amendment Bill — In Committee[Sitting date: 11 June 2013. Volume:691;Page:10978. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour):It is hardly surprising really that we are considering a bill the Legal Assistance Amendment Bill that involves yet again another denial of due process potentially another denial of access to justice because this Government—and indeed this Minister of Justice—is establishing a very strong track record on exactly that issue. We most recently had the New Zealand Public Health and Disability Amendment Act (No 2) which was at least explicit about denying accessto the courts for a group of people who were desperately in need of it. Now we have legislation that deals with the process end of trying to get access to justice and it starts putting up the barriers and the humps to get in the way.The Minister may well consider that she has done a good job at watering down some of the worst aspects of the legislation as it was introduced but there are still barriers and there are still problems with this legislation. I think it is instructive to note that since the present legal aid regime was commenced—was put in place—the number not only of lawyers doing legal aid since the beginning of last year but also of law firms now allowing their lawyers their solicitors and their partners to do legal aid has been dropping consistently and dramatically.You hear it from lawyers too. Law partners now say that whereas once upon a time a lawyer with 2 or 3 years’ post-qualification experience could be put on to some legal aid cases—it builds up their experience gets them a bit of court access and court time—they no longer do it because with the fixed-fee regime and with the administrative process that it now entails it is getting harder and frankly less viable for law firms to do it. Lawyers particularly those practising on their own account are now saying it is just too much and they are getting out of it. It is interesting to note now that the Ministry of Justice is having to put together a programme specifically to attract senior counsel back into doing legal aid work because the present regime is not working. Well this bill is not going to help. If anything it is going to make it worse.We should not when we are thinking about those who are dependent on legal aid overlook just what sort of a barrier $50 is in terms of making an application or contributing to those initial costs or legal costs that are required. For the impecunious the destitute and the poor those who find themselves facing the full force of the police and the coercive arm of the State and having to defend themselves and most importantly their liberties against it actually having access to legal aid is very important. And if you do not have $50 you do not have $50.Whereas before a lawyer who was making the application representing their client could in reality absorb that $50 in terms of the charge they pass on to the Ministry of Justice they cannot do that under the fixed-fee regime that now applies to legal aid. Unless there is a change there—and who knows what will happen there—it is simply going to get harder for those who are dependent on legal aid to stump up that $50. They will be dependent on the generosity of legal counsel who are themselves making the applications for legal aid in order to represent that client to either pay it themselves or in effect accept even less than the specified fees regime that is in place at the moment. That is the insidious nature of just that part of this bill. That is why this bill continues to create a barrier that we can all foresee will have very real effects for those who would otherwise be dependent upon it.Then there is the arrears issue this insidious notion when you are needing legal assistance particularly if you are facing a criminal charge. We claim that in our system our constitution where the State can come after people with prosecutions and put their liberty at risk we say: “Yes you can get access to court and get your case heard.” To put in place a situation where a previous grant of legal aid may give rise to a debt that then if it is unpaid may count against a future legal aid grant goes against a fundamental constitutional principle that when the State is coming after you and putting your liberty at risk you must be allowed access to the court to be heard. And it is not only access to the court but also adequate representation—representation of a quality and nature that befits the charge that the person is facing. That particular provision innocuous as it may seem on paper and as the Minister may make it out we can foresee is going to also create a barrier to access to legal representation at a time when a personwho is dependent on legal aid is going to need it most. That is yet another reason why we will be opposing this bill.We have already seen in the consideration to date of the Family Court Proceedings Reform Bill—and it is not complete yet—just how difficult it is going to get for people in the civil jurisdiction to get access to legal aid. In that particular case it is going to get harder for parents going through a family dispute mainly a separation to get access to legal aid and certainly legal representation at a time when they most need it which is when their particular situation and the legal ramifications of it are being talked about. Also disturbingly counsel for the child are now going to find it much harder to get State support to play their important role because that role is more or less legislated out under that particular bill. It all ties in with what this bill is trying to do which is to once again minimise and reduce the cost of legal aid to the State.The Minister makes very fine statements about the importance of legal aid. Legal aid is a big cost—about 50 percent of the cost—of the Justice vote. But we have that in a civilised country like ours because it is important. It is important for people to have access to adequate representation when they are in court. When we think about legal aid it is an area in which we should proceed with caution with care and with respect for that constitutional right of people to be represented in Her Majesty’s courts. When issues of rights are being determined and when issues of liberty are at stake then there is no cost too great to ensure that a person’s rights are fully observed and respected that they can get an audience and that a judge can make a considered decision on the basis of good quality representation.There are some respects in which if we do not meet the proper cost of legal aid the proper cost of representation of people when they are before the courts that cost will be picked up elsewhere. It will be picked up as my colleague Lianne Dalziel referred to as unrepresented people making guilty pleas that with proper consideration and access to legal aid they would not otherwise make. That may have implications then for the application of other legislation like the three-strikes legislation that may see people serving extensive sentences—sentences of up to 14 years—for what might otherwise be considered to be trivial acts of street thuggery or street burglary. We take this seriously. Notwithstanding the positive changes and the general direction that this bill has taken we still see in the provisions in this part of the bill some real problems and some real concerns about access to justice and the observance of people’s rights.