Borrows Chester: Legal Services Bill — Second Reading 
Borrows Chester: Legal Services Bill — Second Reading 
[Volume:670;Page:16770] 
CHESTER BORROWS (National—Whanganui) 
: 
 One of the saddest things when debating any legal aid legislation is an automatic assumption that when we are dealing with legal aid we are talking about those who defend the despicable the guilty and the least worthy of our society. The problem is that we tend to try to fix the symptoms of the situation which has led us down this path. What bothers me about the Bazley report is that it does not address the underlying cause of problems within the legal aid system which is the inequality of arms. 
Earlier we heard a speaker from the Maori Party talk about how this bill may affect Maori who are vastly overrepresented within the criminal justice system. Of course that speaker is correct. Maori who appear before the court are largely unable to afford their own representation. 
The criminal justice system—quite wrongly in my view—appears to apply legal representation completely back to front. The more serious the category of crime before the court the more money the Crown is prepared to throw at it. On one side that approach appears to be just because the penalties are more severe so the consequences of injustice are greater. However the low-level offending that appears within our summary jurisdiction is the gateway offending that leads on to further offending. The more a young person for instance appears in summary matters before the court for low-level offending the greater the risk is that they will come back. Whom do we see applied to defend low-level offenders appearing before the criminal justice system? Invariably they are staff solicitors from big firms with little practice little supervision and the least ability to apply themselves in the defence of those people appearing before the court. That is wrong. 
We never seem to apply our minds either to comparative legislation or to legislation that deals with Crown solicitors. For instance a Crown solicitor appearing before the District Court on a summary matter that is going on to a depositions hearing is allowed to have 15 hours’ work to prepare for that depositions hearing. A legal aid lawyer appearing on the same matter would get 3 hours. One has to ask why that is. A Crown solicitor can apply 8500 sworn police staff to do the inquiry legwork in the investigation of a case or to cover up the holes that he or she has found during the course of the examination of a case that he or she is about to put before a court. If defence counsel on legal aid want to make similar inquiries because of the holes that they have found they are not allowed to go and do them themselves because it creates a conflict when they want to lead that evidence in court. So they have to apply to the Legal Services Agency as it is now—under this legislation through the legal aid system through the Ministry of Justice—for a private investigator to go out ask those questions and take those statements. That huge inequality of arms has never been addressed. 
Examining the Bazley report and this legislation leads us to the reason legal aid lawyers have in the words of Margaret Bazley rorted the system or milked the system. They are trying to apply themselves to a case using the funding that they are able to get for it. They have to in some way balance the books or their budgeted time allocation which they have to make to keep their job and they cannot do it by charging legal aid. So we end up in a situation as Mr Bridges indicated earlier on where a Crown solicitor is appearing at an immediate rate of pay of maybe $150 an hour while in the same case a legal aid lawyer is getting somewhere between $95 and $110—at least they were a few years ago when I was in exactly that situation. I think that situation should be a real concern for all of us. 
At the moment all this bill addresses is the expediency with which a matter can travel through the court system and the cost to the taxpayer. They are due considerations that must be given but at the same time I am mindful of the inequities that they can lead to. I think we need to at some stage in the future address those inequities. 
The issue about preferred providers has been raised. That is the ability of someone appearing in a court case to choose their legal aid - appointed lawyer. It was interesting to note that the Law Society and the Criminal Bar Association did not come out with a position either way on the issue. That is because their own Bar is divided. There are people in receipt of legal aid cases who are making a lot of money and getting a lot of referrals and it appears on the face of it that there is no justification for that. Currently a matter is traversing through the court system where someone is seeking a judicial review but we will not comment on that particular case. Yet it is not unheard of for some people to get 500 cases assigned to them by a preferred provider in the court in South Auckland. It is very difficult to understand then how someone in the Public Defence Service who is also able under the same situation to be nominated as a preferred provider gets only about 50—that is quite a popular lawyer. So there is a real inequity. 
The criminal Bar in South Auckland was I think quite justifiably aghast at the way the Bazley report talked as though the majority of lawyers appearing as defence counsel and in receipt of legal aid assignments were rorting the system or milking the system. The Bar was very disappointed that there was no appreciation at all of the situation that its members find themselves in in respect of their inequality of arms as I have covered. 
I finish by saying that this legislation which principally folds the Legal Services Agency into the Ministry of Justice in order to gain efficiencies is good. The thrust of moving cases more quickly through the court system is also good. Maintaining a rotation service for category 1 and 2 cases before the court will work well for both sides. It will encourage more experienced and more senior counsel to be assigned lower-level cases and thus appear before the courts with their very new and still wet behind the ears colleagues. That will give the new colleagues the ability to learn from the more experienced practitioners appearing before the court and it will give the more experienced members of the Bar an ability to gauge just where the inadequacies are within the current system. I hope that over time we will see an enhanced Legal Services Agency enhanced legal aid providers and a more equitable system that serves all people appearing before the court justly and humanely and in a way that they would expect to be treated in a modern and democratic society. Thank you. 
Bill read a second time.