Bennett David: Legal Services Amendment Bill (No 2) — In Committee 
Bennett David: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2038] 
DAVID BENNETT (National—Hamilton East) 
: 
 The National Party does oppose this bill. 
I am interested in clause 33A of the bill. Clause 33A inserts new section 92A into the Legal Services Act 2000. It relates to the Legal Services Agency’s ability to review payment of legal services. The new section states: “(1) The Agency must from time to time review its rates of payment in respect of legal services provided under this Act by listed providers on a contract for services.” What does that mean? It means simply that at some unspecified point in time the agency has the ability to review the rates of payment for legal aid. This definition causes a number of problems. First the time frame for reviews is not specified. Secondly the quantum of any increase or even a potential decrease is not specified. Overall there is a lack of detail which will create uncertainty amongst practitioners and there is also inconsistency with specific details given for the rights to obtain legal aid. But there are no specifics on how to pay the practitioners for the increase in services they are expected to provide. 
The intention of the bill is to promote access to justice. The Hon Phil Goff described this in the first reading as: “More people will qualify for legal aid.” It is expected that as a result of the opening up of eligibility for legal aid there will be a further 25000 grants of legal aid per year. Those grants will be inflation-proofed by linking the thresholds for financial eligibility to movements in the consumer price index. Each year the threshold will change. If we compare that with section 92A where we have only a vague ability to review the rates of payment we see the first inconsistency in the bill. We are providing a specified regime for dealing with increased caseloads but at the same time we are providing no specific regime for how to pay the providers of those services for their increased costs of providing the service. All we have is an undertaking from the Hon Mark Burton in the second reading that: “I have indicated that a review will be considered after the implementation of this bill.” That gives neither any certainty nor any consistency for legal practitioners. 
The Government’s coalition partners “Ron’s Mob” have taken the approach that this is some kind of attempt to lobby for higher fees. The reality is that we face a segment of the profession that is in crisis. The reality is that practitioners are deliberately shying away from legal aid work because of the administration required the low payment fees and the lack of resourcing for their activities. That potentially affects the poor more than any others. For example there are no practitioners willing to do family law work on legal aid between Taumarunui and Te Awamutu. The result is that that service is not provided in small towns in areas of low socio-economic demographics. Where it is provided in those areas there are real concerns over the level of service provided and the ability of the legal advice. 
Some people may not see that as being a problem. One of the things I remember from working in a law firm was the case of a young man who was needlessly sent to prison. He had suffered the effects of a big night out and had committed certain acts he should not have. After a few days on remand he was brought before the judge. OK that judge had a propensity to convict but the young man stupidly stood in front of the judge and told the judge that he deserved a sentence of imprisonment. He got that—a sentence he should never have had to suffer and something that probably sent him down the wrong path in society. If he had been given sufficient legal advice his life would have followed quite a different path but unfortunately he was just one of the many. Some people do not know how to help themselves in those cases. 
The Government has a responsibility to provide for those sorts of circumstances with sufficient legal representation. Under this bill there is an expectation for greater numbers of legal cases but not the legislative intention to provide an adequate level of service for those concerned and that is especially true for the youth in our community. The failure to provide adequate representation for those in need of protection such as our youth is contrary to the early intervention principle and is a failure for those most in need. Sure the bill brings in a new repayment regime but many such individuals will never be able to meet those commitments. We are also seeing trends in legal aid whereby clients are treated differently in terms of scheduling and in the quality of staff and advice provided. Combined with a Legal Services Agency that acts more like a court in determining appropriate cases we are failing the most vulnerable in our society. 
An important concept in representation is equality of arms—that both parties have a comparable level of representation. The current inequality in payments for prosecutors and defenders is that fewer people are doing legal aid work as such work is not compulsory. That in turn limits their choice of clients. Often questions of competency arise from inappropriately paid representations and there is the possibility of a greater risk of errors. The key concept of the bill is access to justice but to achieve that we need an appropriate level of service from legal aid lawyers. This bill fails in providing access to appropriate levels of service. 
The bill intends to increase access without having respective increases in the funding of the service. It sounds familiar—just like a Labour Government policy of devolving the costs of services to local government bodies. All that is provided is a time to time review process. “Time to time” is undefined and could be as long as anything—the time taken to address our roading needs the time taken to achieve the elusive tax cuts or possibly the time taken for an old sailor in New Zealand First to retire. The amount of any change is similarly vague but we are used to vague concepts of values from this Government—of carbon tax estimates and student loan scheme costings.