Burton Mark: Legal Services Amendment Bill (No 2) — Second Reading 
Burton Mark: Legal Services Amendment Bill (No 2) — Second Reading 
[Volume:629;Page:1742] 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Legal Services Amendment Bill (No 2) be now read a second time 
. I would like to thank the Justice and Electoral Committee for its careful consideration of the bill. I want to note that I accept all the committee’s recommended amendments and am confident they will enhance the overall operation of the legislation. 
The Legal Services Amendment Bill (No 2) represents the second phase of this Government’s reforms of the legal aid scheme. The first phase was initiated by the Legal Services Act 2000 which established the Legal Services Agency. The agency is responsible for the efficient and cost-effective administration of the legal aid scheme. This bill updates the eligibility criteria for legal aid. It also introduces a new repayments and debt management regime. 
I turn now to the changes to the bill recommended by the committee. The committee has recommended changes first to the criminal merits test. The test as introduced by the bill represents a significant improvement over the previous tests which provided little guidance to legal aid applicants or to decision makers. The new test clarifies that the interests of justice will require a grant of aid where a person is charged with an offence for which the maximum term of imprisonment is 6 months or more. For less serious matters the bill lists the various considerations that the agency must weigh when deciding whether it is in the interests of justice to grant legal aid. The committee recommends adding another factor to the list of relevant considerations. This allows the agency to take into account whether an applicant has any previous convictions when deciding whether the interests of justice require a grant of aid. I support this proposal as previous convictions can be relevant to assessing the likely sentencing consequences for the applicant if convicted of a further charge. 
Improvements to the civil eligibility tests including the merits test for certain family proceedings have been proposed by the committee. The merits test has been reformulated to ensure that it operates in effect as a filter whereby aid may be refused if a grant is not justified. Again I welcome this change. It will ensure that aid is granted only in appropriate cases. 
The committee has also recommended allowing 15 days for the receipt of legal aid applications or amended applications. This will allow sufficient time for submission of valid applications that have not been received by the Legal Services Agency due to circumstances beyond the control of or not anticipated by either the aided person or his or her lawyer. 
An improvement to the repayment provisions has also been proposed by the committee. This will ensure that successful litigants who receive proceeds from proceedings that are insufficient to cover the costs of legal aid do not end up owing larger debts than if they had not received any proceeds at all. I support this change which will ensure that the repayments scheme operates as it was actually intended to do. 
The committee has recommended two narrow exceptions to legal professional privilege and I think there was considerable discussion of this matter in the committee. The first enables an applicant’s lawyer to provide the Legal Services Agency with information about first any changes of address or any increase in income or disposable capital that may affect the applicant’s eligibility for legal aid. The second exception enables an aided person’s lawyer to advise the Legal Services Agency if the aided person is trying to avoid making payments out of proceeds. These recommendations reflect the fact that legal aid professional privilege is that of the client not of the lawyer. The new provisions therefore deem an aided person to have waived legal professional privilege for the purposes of those two narrow exceptions. I support those changes which clarify the exceptions to legal professional privilege. 
I also support the committee’s amendments to the merits test for the funding of private mediation. The amendments provide that the agency may fund certain forms of private mediation for civil proceedings if satisfied that the specified criteria are met. This proposal does not affect the arrangements for criminal legal aid for legal services in respect of restorative justice conferences. 
Changes have been recommended to the provisions for costs awards against legally aided persons. The committee considered that it was too limiting to allow a court to award costs only where there was misconduct by the aided person in the course of proceedings. It recommended that the current exceptional circumstances threshold be reinstated and that the new list of relevant considerations as introduced by the bill also be retained. A provision is proposed to allow the courts to specify costs that the Legal Services Agency may consider paying where no exceptional circumstances exist to justify an award against the aided person. This reinstates a provision in the current legislation. I welcome both of those changes which will serve I think to improve the manner in which the costs provisions will operate. 
 The committee has clarified the circumstances in which interest will be payable. If a person defaults on a debt due—such as a weekly repayment—interest will be chargeable over all debt owed by the aided person to the agency. Again I support this change. 
A new provision providing immunity to Legal Aid Review Panel members has also been recommended by the committee. The immunity will protect panel members acting in good faith from legal proceedings in relation to decisions made by the panel. I commend this change which will support the recruitment and retention of panel members. The change has been proposed to ensure that the resources of an applicant’s spouse or partner will not be treated as those of an applicant if the parties are living apart. I consider this change to be a useful clarification of the existing provisions. 
The committee has also made a recommendation that requires the agency to review from time to time its rates of payment in respect of legal services provided by listed providers on a contract for service. I have indicated that a review will be considered after the implementation of this bill. This change is consistent with that undertaking. 
Finally I thank all the members of the Justice and Electoral Committee for their valuable contribution which has resulted I think in a number of useful improvements to the bill. The bill will enable significantly more New Zealanders to have access to justice. It will also enhance the transparency and consistency of decision making and improve the efficient operation of the scheme as a whole. The costs of additional grants of aid will be partly offset by requiring a higher proportion of legal aid recipients to repay some or all of the costs of their grants of legal aid. The overall effect of these reforms is to increase the pool of those eligible for legal aid from around 765000 to 1.2 million people. I anticipate that the bill if passed promptly by the House will commence in around March 2007. I commend the bill to the House.