Legal Services Bill — In Committee Speaker Recalled In Committee 
Legal Services Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17001] 
Legal Services Bill 
In Committee 
Part 1 Preliminary provisions 
CHARLES CHAUVEL (Labour) 
: 
 I begin my contribution by using the first opportunity I have had since the Minister in the chair the Minister of Justice announced he would stand down at the next election to congratulate him in the House on his achievements in the justice portfolio and to wish him well for the future. I am sure his future will be a rosy one and I think I speak for other members on this side of the Chamber when I say that his departure will diminish the House. We will miss him I tell the Minister. 
Hon Simon Power 
: Thank you Charles. I was going to say I am here for another 8 months yet— 
CHARLES CHAUVEL 
: Notwithstanding those sentiments as the Minister has pointed out the absence I presage will not actually occur for a little while yet and we have plenty of time to debate the matters in the Minister’s portfolio. 
I understand that this debate concerns just Part 1. I will say one or two words in respect of the Legal Services Bill and in particular the preliminary provisions that are proposed to be dealt with by the legislation. The legislation as members of the Committee will know is broadly supported by the Opposition. It is accepted that there ought to be some changes to the legal aid regime and that the legal aid system ought to be updated. The Opposition thinks the legislation has been improved by the report back from the Justice and Electoral Committee and the Opposition continues to support the provisions of the legislation on a broad basis. It is quite clear that as I said some reforms were required and we see from the report back that those reforms will be somewhat improved. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
Hon DAVID PARKER (Labour) 
: 
 I understand we are on Part 1 of the Legal Services Bill which of course includes the preliminary provisions. The preliminary provisions include the interpretation clause which includes the definitions of the various proceedings to which the bill applies. 
The purpose of the bill as explained to the Justice and Electoral Committee is to rationalise the provision of legal aid particularly in respect of criminal legal aid where some problematic patterns of behaviour have developed according to the report by Dame Margaret Bazley. It was also clear from submissions to the select committee that some of the problems that were perceived in respect of criminal legal aid did not apply to family services. So one of the issues that I would not mind the Minister of Justice providing clarification on is whether the definitions of “criminal proceedings” and “civil proceedings” in clause 4 make it absolutely clear that some of the more rigorous provisions that will apply to criminal proceedings will not apply to family proceedings. 
I understood from officials that in response to submissions from family lawyers they recognise that there does need to be a choice on the part of family proceedings litigants as to their counsel whereas in respect of the criminal arena barristers and solicitors will be appointed under the legal aid rosters. I understand from the advice that was given to the select committee that the reasoning behind that is that in respect of criminal proceedings there has been a capture if you like of large parts of the market by a small number of barristers—who may not even be the best barristers—and that that has been at considerable cost to the Crown. There have been accusations that some of those lawyers have at times been conducting their proceedings in a way that has been expensive for the Crown and has resulted in some unexpectedly high incomes for some of those solicitors. None the less the same is not true in respect of family law where there is acceptance that a rostered basis or people having a legal aid lawyer allocated to them rather than their choosing their own lawyer is not appropriate. 
I say to the Minister that I suppose one of the reasons why I am interested in this issue is that it seems to me that there is something in that. In respect of family proceedings one can have a protracted custody dispute and it would be wise to have the same lawyer appearing in all parts of that protracted dispute which may go on for a couple of years. That is particularly so where children are affected. There is counsel for the child and often counsel for the child is also paid for by the Crown. I would be interested to know whether appointment of counsel for the child in respect of family proceedings will persist or whether that will be rostered as well. It is not clear to me from the interpretation clause clause 4 whether that is correct. I look forward to the Minister telling me the answer to that query. 
Another query I have is that I am not sure what is happening in respect of “proposed patient” within the meaning given to that term in section 2 of the Mental Health (Compulsory Assessment and Treatment) Act where it is proposed that people are made subject to compulsory treatment or compulsory assessment. They can actually lose their liberty for a period because of that. If that sort of thing occurs then as I understand it sometimes the Crown pays for a lawyer to represent the interests of the person who is subject to a mental incapacity. I am interested to know how that lawyer is chosen. Is that lawyer chosen on a roster basis like the one we have for criminal matters or is there some other way in which that person chooses a lawyer? Does their family choose a lawyer does the judge choose a lawyer is the doctor involved in choosing a lawyer or is it a case of just going down a list? If the last lawyer chosen was “Parker” do they go to “Power” the next in alphabetical order if the mentally incapacitated person is unlucky enough— 
Hon Simon Power 
: Oh! 
Hon DAVID PARKER 
: —to reach the “Pa’s” not the “Po’s”! Perhaps that is an issue the Minister in the chair could address. I am sure he knows the answers to those technical questions. 
The CHAIRPERSON (Hon Rick Barker) 
: I call Simon— 
SIMON BRIDGES (National—Tauranga) 
: 
 Bridges. 
The CHAIRPERSON (Hon Rick Barker) 
: Bridges; sorry. 
SIMON BRIDGES 
: Thank you Mr Chair I have been brought down to size. 
Hon Member 
: You need to get your profile up. 
SIMON BRIDGES 
: I do. I need to do more breakfast television or something. 
I will start in the same vein that Charles Chauvel did by acknowledging Simon Power who is currently the Minister in the chair in this my first speech since the announcement of his decision not to stand at the next election. Stuart Nash was in the House and still is in the House and he was telling me a little while ago that I was one of the more regular speakers in Parliament. He had some research done and found that that was the case. The reason I mention this is that I reflected on why that would be the case and it is simply for this reason: I am on the Justice and Electoral Committee. I think I am right in saying that our committee has considered about 40 percent of the legislation that has gone through this House in the last couple of years. That is obviously a real testament to the Minister of Justice and his work output. I also add that if we go through those laws the quality of them and the common sense of them which is not always something to be— 
Grant Robertson 
: Is this a job interview? 
SIMON BRIDGES 
: No it is a serious contribution I hope about a Minister who has done in 2 years the work of many more years than two. 
I want to talk about clause 3 “Purpose of Act”—funnily enough a lot members do not want to talk about it—because it seems to me that clause 3 is quite significant. It states: “The purpose of this Act is to promote access to justice …” and of course that is fundamental. I think that having access to justice is something that everyone in this Chamber would agree on. I will not talk about the bill debated earlier today in this House and some of the arguments there about access to justice but it is fundamental. Clause 3 goes on to state that the bill does that “by establishing a system that—(a) provides legal services to people of insufficient means;”. 
I have already talked about how fundamental that is for a legal aid system. The reason is perhaps quite obvious but it is worth remarking on. In a lot of family cases where legal aid is provided it is the State that is bringing the case and it is absolutely right that if people can pay for it they do so. But in criminal cases if people cannot if they do not have the means and if as is of course the case in criminal cases they may well lose their liberty the State does have a mechanism by which it can pay for and provide people with legal services. I think it is important that the purpose clause states that the State is providing legal services for people with insufficient means. The converse of that is that we do not want to provide legal services to people who have the means to pay for legal aid or lawyers. 
Clause 3 goes on to state that we are establishing a system that “(b) delivers those services in the most effective and efficient manner.” As I understand it we have not seen those words or anything quite like them in a legal services bill—or in many if any justice bills—in the past. I touched on this in the second reading debate. 
Grant Robertson 
: Quote yourself. 
SIMON BRIDGES 
: Maybe I will. I cannot quote myself word for word but I said then that some people say that it should be justice at any cost. They say that we should be spending billions and billions more and sometimes in court cases we get the feeling that that is the way things have been run. Some people believe that if another witness can tangentially touch on something that he or she may have seen or heard and it draws the case out for another day then that is fine but there needs to be some proportionality. 
Hon DAVID PARKER (Labour) 
: 
 Just following on from the issue that Simon Bridges raised I agree with Mr Bridges in respect of it. Indeed I wonder whether the preliminary provision in clause 3 which presently states: “The purpose of this Act is to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means;” might better read “provides appropriate legal services to people of insufficient means:”. I agree with Simon Bridges that we need to take care that we do not cross a line so that legal aid funding is provided to people on low incomes for things that they would not fund for themselves were they on high incomes. It is one of the tensions we have in legal aid. If legal aid is available at low or no cost to low-income people who have no realistic prospect of paying back what is in theory meant to be a loan it is effectively a grant to them for ever and there is little financial incentive on them to appropriately modify or control their own expenditure on legal fees because in the end they do not pay the bill. I think that there are a couple of areas yet to be properly controlled through the legal aid system and I would like to hear the view of the Minister in the chair the Hon Simon Power as to how this purpose together with the relevant parts of the bill achieves proper control of criminal appeals and multi-defendant drug trials. 
I will deal with the first one in respect of criminal appeals. There used to be a system in New Zealand where criminal appeals particularly to the Court of Appeal were controlled by the judges themselves. A Privy Council decision said that that was inappropriate—that the judge ought not to be the gatekeeper as well as the judge on the substantive merits of the appeal. I can understand why the Privy Council found that and it seemed a wise decision. But as a consequence the only effective stop on everyone who wanted to exercise a right of appeal in a criminal matter being paid for by the State was thrown out and we have not had a replacement gatekeeper. I absolutely believe that we should be enabling people to have fair access to legal representation in respect of their first appearance. However I am not convinced that everyone who wants to appeal if they can do so more frequently as a legally aided appellant in a criminal appeal should be funded by the State effectively at the cost of other taxpayers. There needs to be some mechanism in the system to stop what is effectively a proliferation of criminal appeals that would not happen if these people were pecunious—that is if they had the money and were themselves paying—because they would be more likely not to pursue an unmeritorious appeal. That is one issue. I think we should have the word “appropriate” in that clause because this is money that we are short of and I am not sure that this bill quite gets that right. 
The second point is in respect of multi-defendant trials. Multi-defendant trials can arise where there are complex drug crimes. There are a number of defendants and often their interests are just about identical but we can bet that if they are on legal aid they will all have a separate lawyer. If they were not on legal aid and were paying their own defence they seem remarkably to be able to agree that they should cooperate and share the expense of a lawyer. Instead of having five lawyers all being paid by the State they somehow manage to cooperate and agree between them that it would be much more sensible that they have only one. That aspect of criminal legal aid overexpenditure needs to be controlled as well. Not only does it cause a waste of costs to the State in respect of the defence legal aid costs it actually elongates the trial. Five lawyers would be jumping up to cross-examine the same witness all showing how good they are at their job. It elongates the period of time for the trial so that the trials run a lot longer and they are a lot more complex for the judge to manage. It takes a lot more time when it comes to the prosecution it takes a lot more time when it comes to the police and the other witnesses that have to appear and the whole thing becomes more complex and more expensive. 
The quality of justice cannot be divorced from its accessibility but that does not run for just the accused or the defendant. It also runs for the overall cost of the process as to whether Governments can afford to run decent judicial systems and we see this even more so in respect of civil proceedings. In respect of civil proceedings I suggest that it is important that the Attorney-General who has conduct of civil proceedings rules exerts controls because in a constitutional sense they are the Attorney-General’s rules. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 I enter this debate with some trepidation as a non-lawyer following on from Mr Parker and Mr Bridges who both obviously have extensive legal backgrounds. But I guess I can bring a slightly different perspective. 
I too will carry on from Simon Bridges’ audition to be the Minister of Justice which we heard just before by picking up on the purpose of the legislation in Part 1 of the Legal Services Bill. Clause 3 tells us: “The purpose of this Act is to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means;”. My colleague Mr Parker has just suggested that the word “appropriate” may need to appear in there. As he has noted not everybody making use of the legal aid system would be doing those things were they using their own means. 
I take a slightly different view not so much about whether that word should be in there but about why we have legal aid. I noted when reading through some of the material from Dame Margaret Bazley’s report that the legal aid system is perceived by many people to be second-rate. I think that that presents the balancing argument to the one that Mr Parker just gave in that we need to strengthen a system of which the users by definition are often at a financial disadvantage or are perhaps socially excluded in some way. We need a system that they have confidence in to provide them with justice. If there is a perception by many people that this system is second-rate in some way we need to strengthen the system. 
I believe that that is what this legislation does. However it is important to note that the provision of legal services to people of insufficient means is very much part of a social contract the social fabric of how we ensure that there is access to justice. By all means—and this bill does this—we need tests for people who are receiving legal aid; we need to be sure that they are genuinely of insufficient means and also that legal aid is the appropriate form of protection and advocacy for them. I note in that regard the idea in Dame Margaret Bazley’s report—and indeed Mr Power’s response to it—of extending the public defence services. Obviously it is a good example of how we are looking at more appropriate means of providing advocacy and support to people because it will not always come through the legal aid system. 
I also just note—again as someone who is not from the legal profession—that when the original report came out there was some feeling that it represented a system rotten to its core and that somehow the legal aid system was in fact a drain on taxpayers it was not providing a good service and it was full of rip-off agents. It is important to note in speaking on Part 1 of the bill that that is clearly not the case. Most legal aid lawyers are providing a good service for their clients. Perhaps the perception from some of the clients is that they are not getting that service but most legal aid lawyers are not ripping off the system. Sure there have been some and it is important to highlight that issue. But the integrity of this part of our justice system needs to be upheld. 
Obviously legislation such as this is making steps towards upholding that integrity but I would not want the public of New Zealand to be left with the impression following on from the inquiry and the Government’s response to it that the system is rotten to the core. We had some interchange in this Chamber last year between Lianne Dalziel and Simon Power around those lawyers in South Auckland for instance and whether they had been given a fair go in this process. It is important that we note tonight on the record that a large number of legal aid lawyers are doing excellent work. We hope that those who are not will be identified through some of the systems that are being put in place under this bill so they can be weeded out if they are not performing in the way that we would like them to be. 
When we look at Part 1 and the purpose clause within it it is important to note that the notion that people of insufficient means should be supported is an important one. A rise in the cost of living is going on in New Zealand at the moment where people are facing bills that they simply cannot afford just for the basics of power food and petrol. If those people were put in a position of needing legal support and if this kind of legal aid system was not around that would be injurious to justice and to the kind of society that I think most members of this Committee would want to live in. It is a plain fact that a large legal bill on top of the kinds of bills that people are facing in their everyday lives today would be a disincentive to people seeking justice. That would be wrong just as we said earlier on the question of the cost of taking people for medical attention that it would be wrong. If that cost was a disincentive that would be wrong as well. 
Hon SIMON POWER (Minister of Justice) 
: 
 I am a bit reluctant to interrupt the flow of quality contributions coming from my left but at this point— 
Hon David Parker 
: There’s no risk of that. 
Hon SIMON POWER 
: That is right: there is no risk of that. I will make a couple of introductory remarks but I will not take a large number of calls during this Committee stage because the Legal Services Bill and the process associated with it has been debated widely both publicly and within this Chamber and during the select committee process. 
I will respond to a couple of points that have been made by members of the Opposition. First the most important component of the purpose of this bill is to confirm and to guarantee access to justice for those who cannot afford to fund their own legal counsel at a time particularly in the criminal area where it is absolutely critical that good quality representation is made available to them. 
Secondly it is important to note that although Dame Margaret Bazley’s report referred to some lawyers who were perhaps below par criticisms were also made—and subsequently followed through by the Government—in respect of the performance of the Legal Services Agency so it was a two-way street in that sense. Frankly once professional services are billed and have performed to a reasonable standard those practitioners are entitled to have their fees paid in a timely and efficient manner. We have seen some big changes on the Legal Services Agency side as well as the changes that are going through under this bill in respect of good-quality representation. 
Mr Parker touched upon one or two issues relating to the potential for some further reform in these areas. He tellingly zoned in on one or two areas that the Government could look at further. I reassure my colleague on the Opposition benches that that work is well under way and that this will not be the last piece of work Parliament deals with in the legal aid area in my time. It is an interesting debate which we will continue. 
Affordability for the State which means affordability for the New Zealand taxpayer is an important part of that continuing equation. Mr Parker raised issues about for example multiple defendants and multiple legal aid lawyers and the like. Many of those issues and the question of the efficiency with which the court system deals with them—because all of those defendants are entitled to have their matters heard in a timely way; that is an important component of the New Zealand Bill of Rights Act in this sense—are largely being dealt with under the criminal procedure simplification and modernisation legislation. 
When those changes are put alongside the changes to the legal aid system contained within this legislation smart members of the Committee will begin to see a bit of a plan emerging—that is incentives across the justice system are being changed tweaked and shall we say retargeted to ensure that those most in need are getting those services. However it means that the Government will continue to look closely at the broader affordability of the legal aid system. I have said publicly that on the current track of baseline expenditure to vote legal aid if I can describe it as bluntly as that compared with the growth that is expected in this area off the back of current settings—that is to say settings that are not altered by the passage of this legislation—over the next 5-year period we are looking at a gap between those two lines of about $405 million. That gap has to be addressed. 
Some of the issues that Mr Parker raised were at the margins of this bill. None the less some that were raised will be the focus of further consideration by the Government in coming months. In fact I am hoping to make an announcement in that regard shortly. 
We will see continuing tweaking of the incentives in the legal aid system to try to muster taxpayers’ money in a way that focuses solely on the good of those who cannot afford representation through legal services of their own. Currently the system is clearly not incentivised adequately to avoid the slowing of processes the bogging down of matters and the multiple representations of issues which have to be paid for and dealt with by way of other processes in the court system. 
The previous Government through the Hon Rick Barker who was then the Minister for Courts had enough foresight to persuade the then Opposition spokesperson on justice and corrections to support the removal of depositions. I might dwell on that matter in relation to the purposes of the legal aid system for just one second. At that time I was approached by a reasonably significant group—I am not sure what the collective noun is for a group of lawyers but they were a very senior group—of criminal lawyers who told me that if I proceeded with my fountain pen on the parchment and we did away with depositions we would cause major problems for the system. That is why as the former Minister may recall we agreed firstly on a review and secondly to retain in the legislation an application to the judge to hear oral submissions in the event that matters were complex and worthy of such of an application. 
It turns out that since the removal of depositions those applications for oral evidence to be heard have occurred in 3 percent of matters brought before the courts. So people who said previously that if changes were made to the legal aid system the justice system and the way that we drove the system to ensure timely and quality representation we would undermine the fabric of the pistols at dawn mentality—which effectively is the adversarial system that we have adopted—were not right. This Parliament must have the courage to drive through changes to make sure that we test those notions in a vigorous way and this piece of work is only a small part of a broader reform that I hope will do that. 
JACINDA ARDERN (Labour) 
: 
 I would have enjoyed hearing a little more from the Minister of Justice on his plans for our justice system generally as I am pleased to hear that he is a Minister who has a vision for where he believes the justice system needs to go and has identified all the tensions that exist within the justice portfolio. 
I come at the Legal Services Bill from the perspective of not being a lawyer but I am intrigued that we are having a wider debate about what causes pressure points in our court system and about the impact of our adversarial system generally. I am sure the Minister will also recognise given that he was the individual behind the Drivers of Crime work that at the very coalface the first intervention point to peel back the pressure on our court system is to stem the flow of cases coming through our justice system. 
There are many ways we can do that but I think we only need to look as a starting point at where a lot of our young people tend to enter our justice system to see what the precursors to crime are. They have been identified both by the Opposition and by the Government. But it seems that the tricky part is to actively invest in those areas when the demands of the public are often in the much shorter-term area of heavy retributive justice imprisonment and so on. That is where the tension in the end tends to be. 
The Legal Services Bill touches on a different element of the justice system but in an interesting way. We are talking about incentives and disincentives in our system but particular legislation has been passed by this Government that will put additional pressure points on our legal aid system and I will come to those. But first I acknowledge that the Minister raised the point that this is a two-way issue. We are talking about not just the quality of our legal aid lawyers but also the relationship that they in turn have had in the past with the Legal Services Agency and will have going forward with the Secretary for Justice and the Legal Services Commissioner and I acknowledge that too. However it strikes me that we are now at a point where those relationships must be rebuilt. 
This bill represents an opportunity to move forward for both the Legal Services Agency and lawyers operating in this field. The Bar in particular has called for the opportunity to meet with the Legal Services Agency. I would be interested to hear from the Minister whether the Bar particularly in South Auckland has had that opportunity. The last time the Legal Services Agency met with us at the select committee that had not occurred. I think in terms of moving forward that would be at least a very good symbolic act. 
I will pick up on the purpose of the bill under Part 1 given that is what we are discussing in the Committee stage. I note that there are two things that stand out for me. The purpose of the bill is to promote access to justice. That is not a passive purpose. The promotion of access to justice implies that this has always been underpinned by two very important principles—that a successful justice system must have an element of accessibility and it also must demonstrate to members of the public whether or not they are using the system at any given time that they can have faith in the system that exists in New Zealand. That is where I think that really important word “promotion” sits. The second element is that the system should deliver those services in the most effective and efficient manner. 
The efficiency question is interesting. Although the Minister has talked about the $400 million funding gap that we will have to bridge I do not think he has acknowledged the perverse impact that some bills such as the “three strikes” legislation may have— 
Grant Robertson 
: He wouldn’t know anything about that. 
JACINDA ARDERN 
: I know that he is not the Minister responsible for the “three strikes” legislation and he may choose not to defend it. But because the principles of collective responsibility apply to Cabinet I am sure he would not mind addressing the Committee on whether he believes that legislation will change the incentives within our justice system. It is one thing to talk about procedural matters and depositions; it is another to talk about the overall impact that those— 
Dr PAUL HUTCHISON (National—Hunua) 
: 
 I raise a point of order Mr Chairperson. I want to bring to your attention the recurring static sounds. We heard them earlier this afternoon and they went quiet for a while. But they might be more than static. They could be electrostatic and I would hate to see colleagues from the other side of the Chamber being electrocuted unnecessarily. I just wonder whether something could be done about it. 
The CHAIRPERSON (Hon Rick Barker) 
: I thank the member for that. I have noticed that there was a bit of static in the microphones and some work has been done on the microphones during the dinner break. I am pleased that the member is not thinking about having people electrocuted—we are past that. 
Hon DAVID PARKER (Labour) 
: 
 It is probably a bit like being in the Libyan Parliament at the moment! It sounds like small-arms fire above us! I want to raise two issues. First of all I want to respond to something Minister Power said about the spiralling costs of legal services and legal aid. I suggest that if there is one area where it is very easy to save costs it would be to do away with the silly “three strikes” legislation. If someone is at risk of getting a “three strikes” penalty recorded against them and being locked away for ever that person has a greater incentive to defend the charge so that there is no future risk of eternal imprisonment at Her Majesty’s pleasure in one of New Zealand’s prisons. If we are really serious about wanting to stop wasting money in the legal system we should do away with the “three strikes” legislation. 
I turn to another issue which is that of community legal services. The definition in clause 4(1)(b) under the heading “community legal services” refers to law reform and advocacy work. The first community law centre in New Zealand was the Grey Lynn Neighbourhood Law Office which was formed in the 1970s. The second one was the Dunedin Community Law Centre which was a different model and proved to be the model for the rest of the community law centres. 
Paul Quinn 
: It was yours. 
Hon DAVID PARKER 
: I thank Mr Quinn. Yes I was one of those who were involved in the formation of that centre. I was not the leader but was on the committee of people who put that community law centre together in 1979. Indeed I worked in it as a volunteer off and on for a couple of decades after that but I no longer do so. 
The prime reason that community legal aid centres exist is to provide legal services to people who cannot afford or normally do not access legal services. Generally the problems that turn up at community law centres are relatively minor but none the less they are important to the people who are facing a legal problem and do not know how to negotiate their way through the system. 
Generally law students and people employed by the law centres—and and in both of those cases they are generally under the supervision of lawyers who are volunteering their time quite generously—provide legal services to help people over those small problems. The problem might be a fencing dispute or someone coming in to ask whether they need to see a lawyer in order to dissolve their marriage and they need to be pointed in the right direction. It might be something about dogs or a small criminal penalty or someone who thinks they have been unfairly charged with a traffic offence. 
All of those things are very good but there is an area where I think it is important that we do not let law centres stray too far and that relates to law reform and advocacy work. Law reform and advocacy work is appropriate but not when it crosses the line to be a political polemic. These precious funds that are being used in law centres ought to be focused primarily on the provision of legal services for the people who need to understand their way through the law not to change the law and not to advocate for political causes. I do not mind there being some part of that because in reality we should be advocating for changes in the law that come up through law centres if they have something to do with say some minor criminal procedure. They might have experience in that and they want to submit on a bill that is coming before Parliament and there is absolutely no problem with that. But beyond that I do think that we ought to limit funding. 
I know that the definition of community legal services talks of services that a community law centre provides under contract between the centre and the Secretary for Justice so I am asking for confirmation from the Minister in the chair the Minister of Justice that in the contract there are appropriate controls on non-legal advice services—that is advocacy services which can on occasion go too far in the promotion of political causes. I have seen that occur and I think one of the reasons why I oppose it is that if it becomes too prevalent I think it puts at risk the strength of the claim for appropriate levels of funding for community law centres to do what is their absolute core function and what is necessary in society. 
A lot of the sorts of problems I have mentioned are very important to the individual. Low-income people are not powerful people in society they are often not able to pay a legal fee and they would not be eligible for legal aid because the nature of the problem would not meet the legal aid thresholds. Lawyers are not interested in providing the services because the people cannot afford to pay so in the absence of a community law centre there is an unmet legal need. That is why community law centres exist. So let us make sure that law centres focus on meeting that unmet legal need rather than on crossing the line into advocacy work for political causes. Although it is rare I have seen it occur on occasions. 
DAVID SHEARER (Labour—Mt Albert) 
: 
 I am not a lawyer either but I feel compelled to say a few words. 
Hon Tau Henare 
: That’s why you’re a nice guy. 
DAVID SHEARER 
: I say thank you to Tau; that is very kind of him. I want to say a few words on the Legal Services Bill because as a number of people have said giving everybody access to the same quality of legal services and legal aid cuts to the heart of what makes us a fair and just society. That is what the purpose clause in Part 1 says. Clause 3(a) states: “provides legal services to people of insufficient means;”. That means everybody gets the same type of justice. It means that people who do not have the right sort of money can still get first-class legal representation. 
One of the key points here is not only that the current system according to the Bazley report is less cost-effective and not only that it is being rorted to some degree—and I do not want to overstate that; it was a controversy that came up over the weeks when the Bazley report came out—but also that it is important to provide people with confidence that they are receiving the same sort and quality of legal representation that they would receive if they had a lot of money and could track down the best lawyer. 
Coming back to the Bazley report it is worth mentioning in the context of why the bill is going through the House a couple of the things she brought up which cut to Part 2 and the delivery of those services in the most effective and efficient manner. The Minister of Justice mentioned that the hole or the gap in our ability to pay for our system as it stands at the moment is about $400 million. The bill will do something I believe to tighten that gap. It tests some of the old rules the old laws the old ways that the legal profession works in terms of how it is enabled and continues to work. It enables us to get the best quality and the best standards for the money we put up. 
Among the things the Bazley report focused on were complaints to the Law Society of dishonest behaviour. As I said before that issue has been talked about. Many lawyers felt aggrieved that they were being tarred by the actions of a few. The report seemed to suggest that lawyers and defendants were colluding to make sure that cases lasted as long as possible. By mutual arrangement they were able to ensure that the lawyers obtained the largest amount of fees possible for the case they were defending. 
The reason the Labour Party is supporting this bill is to make sure that one the people of New Zealand are confident that whether or not they have sufficient means whether or not they have money they are able to get the best legal defence a legal defence that is as good as what anybody else can get—that element of fairness cuts to the heart of this bill—and two that taxpayers are also confident that the people who provide representation do so in an effective and efficient manner that enables taxpayers and society more generally to know that defendants are getting fair representation. 
I have a couple of questions. Can we be sure that smaller centres will get the high-quality legal representation that people in those areas deserve and that people in Auckland Wellington Dunedin or Napier might get? 
KANWALJIT SINGH BAKSHI (National) 
: 
 I move  
That the question be now put 
. 
Part 1 agreed to. 
The CHAIRPERSON (Hon Rick Barker) 
: I have been informed that a loose cable in the server upstairs is causing the static that members have experienced today. Technical staff have tried to fix it and have made some progress but if they do more now they might make it worse. People listening to the broadcast are unaware of the problem; the broadcast going out is clear. The technical people will fix it tomorrow morning and all will be well. 
Grant Robertson 
: Will we be electrocuted? 
The CHAIRPERSON (Hon Rick Barker) 
: Members will not be electrocuted. 
Grant Robertson 
: Unnecessarily. 
The CHAIRPERSON (Hon Rick Barker) 
: Unnecessarily anyway. 
Part 2 Legal aid 
KRIS FAAFOI (Labour—Mana) 
: 
 I will begin following the fashion of Simon Bridges and Charles Chauvel by acknowledging Minister Simon Power since his announcement that he will not seek re-election. I think everyone on both sides of the Committee would agree that he is a Minister who is well respected. Even in my former trade he was a politician who was well respected too. I wish him all the best. 
In terms of his last contribution I will touch on the affordability of providing what we are trying to achieve with the bill. We are looking at around a $405 million shortfall to give this bill teeth. Labour while giving broad support to this bill will be watching that very closely. Without that resource to back up what is in this bill we will not be able to achieve it. 
I think the most important part of Part 2 is clause 9(1) which basically streamlines the granting of legal aid when grants are not or are unlikely to be under the amount set by regulations. That will basically allow people who do not have the means to seek legal aid to be granted legal aid which of course achieves the purpose of the bill. 
I am the member for Mana which is home to the Porirua District Court. It is a court where I am proud to say all parties try to work towards a strong collaborative relationship and work for the community. Therefore this bill will be acutely felt by those who work there every day like the Whitireia Community Law Centre and family lawyers like Peter Foster who is based out in Raumati. 
Hon Tau Henare 
: Good on you that you found out where it was! 
KRIS FAAFOI 
: Ha ha! In terms of the purpose of this bill which is to provide legal services to people of insufficient funds clause 9(1) in Part 2 of this bill is absolutely fundamental. For those people in my electorate who do not necessarily have sufficient means to seek legal help whom I am very worried about this clause will be very important because it is one less hoop to jump through. But as I said before when I was addressing the issue of affordability if we do not have the resource to give to them then this bill will have no teeth. Creating fewer hoops for those people whom I am concerned about is very important because they are facing increasing costs. 
Grant Robertson mentioned that for the people we are talking about unfortunately the fact that they have insufficient means is half the reason they are turning up to court. They are facing increased power prices increased food bills and increased petrol prices and the cost of living is going up. So those people are finding themselves before the courts. Whether it is because of ratbag lenders their own banks that are calling in debts or collection agencies some of those people are turning up to court because they have insufficient funds and insufficient means. When they get to court they will need the assistance of this legislation to make sure that they can be represented in an adequate way before a court. 
As I said clause 9(1) will take the pressure off people with insufficient means. Therefore it achieves the bill’s purpose which is to promote access to justice by establishing a system that provides legal services to people of insufficient means. For me as the member for Mana most of the people who are turning up to the Porirua District Court have insufficient means unfortunately so this bill is very important to them. That is why I said during the election campaign which I was victorious in that I would fight for them. That is why I am addressing this part of the bill to make sure that those people who are struggling to make ends meet whose struggle is not being made any easier by this National Government have adequate access to justice. 
As David Parker pointed out before as we address the issue of affordability one way to make sure we can make up that shortfall of about $405 million in order to achieve the goal of this bill is to look at one of the fish-hooks that comes about in this legislation due to the “three strikes” policy. Those who are accused of a serious crime will have no other option than to plead not guilty. Then we face the situation where we have long and protracted cases sucking on very valuable resources which we need to make sure are going to the people who need them. 
Clause 9(1) in Part 2 is the fundamental part of this bill in terms of achieving its goal. I will support any move to make sure that we can get enough resource and funding to achieve the purpose of the bill which is to provide legal services to people of insufficient means. Unfortunately they are coming in and out of the Porirua District Court every day. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 I will follow on from my colleague Kris Faafoi. It is quite clear that Part 2 goes into significant detail on the procedure for the granting of legal aid and on the cases to which it can be granted. Most of what is in Part 2 is of a relatively technical and non-controversial nature but I will refer to several points. In some sense I think that a number of people perhaps do not understand that the legal aid system concerns both the potential withdrawal of legal aid and the repayment of legal aid. As my colleague David Parker said before legal aid is generally although not always effectively granted as a loan. The repayment of that loan and the procedures about how that might happen are outlined in Part 2 of this bill. 
In particular there is the ability for the commissioner to withdraw legal aid from an aided person and I think it is important that people are aware that that capacity exists. I am looking at Part 2 clause 29(a) which states that the commissioner may withdraw legal aid if “(i) the Commissioner is satisfied that the aided person has sufficient means to enable the person to obtain legal assistance and representation;”. That goes to the concerns that my colleague David Parker raised earlier about whether everybody was getting legal aid and whether it was appropriate. As I said when I made my contribution I slightly differ from my colleague because I think the default position we should be in is one where everybody has equitable access to justice. As Kris Faafoi just said there are people who are struggling to make ends meet and who are having difficulty with the rising costs of living increases in GST and all those sorts of things. They need to know that there is a basis for them to have access to justice. 
But there has to be a limit to that. I think we all respect that with the sums of money that have been discussed already—like the $400 million hole in the funding of legal aid—we obviously recognise that there are some limits to it. Clause 29 actually goes into that issue and specifically notes that the commissioner can withdraw legal aid if it is believed that the person receiving it has sufficient means to pay for assistance and representation. The commissioner can also withdraw legal aid if it is considered that “(ii) … the interests of justice no longer require that legal aid be given to the person;”. That is a weighty task and it is important that it is undertaken sympathetically. One person’s belief about whether justice is still required can be quite different from another’s. So those are important elements within the bill. 
Sometimes people believe that legal aid is a bottomless pit to which people can simply go on and on as Kris Faafoi said taking and sucking money from the taxpayer pool. In reality in Part 2 of this bill we have a mechanism by which legal aid can be managed and controlled. I believe in fact that that provides integrity to the system. It balances my earlier contribution when I said I believed that people of insufficient means need to know they have access to justice. The balance in this clause is that if in any way those people are perhaps not legitimate in that desire or requirement then there is a mechanism to deal with that. Clause 30 does the same thing in terms of civil matters. 
I turn now to the question of community law centres. We on this side of the Chamber are particularly pleased to note that the bill starts to give some certainty about the survival and funding of community law centres. I acknowledge here Minister Power’s contribution earlier about setting the bill in the context of a wider package. There is the notion that community law centres an expanded Public Defence Service and the way in which we are making changes to legal aid in Part 2 will all play a part in that wider package. I think it is important that we understand that that is the breadth of the package. We on this side of the Chamber are great supporters of the Public Defence Service which was brought in under the previous Labour Government and we are pleased to hear that it will be expanded. 
Jacinda Ardern 
: Why not in Palmerston North? 
GRANT ROBERTSON 
: My colleague Jacinda Ardern asks why it will not be brought in in Palmerston North. There are a number of places that it could be expanded to. 
Hon Simon Power 
: All in good time. 
GRANT ROBERTSON 
: So that is where the Minister is going! It is important that we find this whole package coming together. 
On the subject of community law centres I think every MP particularly an electorate MP knows of the value of community law centres. Those of us who get a lot of cases involving issues like immigration in particular but also more bread and butter issues about people’s tenancy rights and family and custody disputes know the value of community law centres. We know that as MPs we can refer people to a community law centre and they can get the response they need which is so crucial. 
KANWALJIT SINGH BAKSHI (National) 
: 
 I will start my contribution by acknowledging the Hon Simon Power who has worked very hard as the Minister of Justice and kept members of the Justice and Electoral Committee busy. 
The National Government is committed to providing legal assistance to people who have insufficient means to pay for it. The bill principally reforms the legal aid system. Dame Margaret Bazley’s review of the legal aid system in 2009 identified inadequate processes and serious delivery issues that threaten the future viability of the system. The clear message was that it was time for fundamental changes. These changes will provide an effective legal aid system that supports the wider justice sector. The legal aid system helps to uphold the principles of and access to justice and equality before the law and natural justice that help to build and maintain public confidence in the legal system. The bill includes a number of measures to improve the competence of the legal aid system. The Legal Aid Review Panel will also come under review. It allows many New Zealanders to access justice enables them to defend themselves and upholds their basic rights. It is the cornerstone of our justice system. 
Part 2 deals with who is entitled to legal aid and who is not entitled to it. For example we do not want to encourage those people who are unlawfully in this country and who abuse the system. The commissioner may not grant legal aid to anyone who is involved in any immigration case under the Immigration Act 2009 if the person is unlawfully in New Zealand under the terms of the Act. 
To date the legal aid system is facing real challenges in terms of both increasing expenditure and the quality of legal services funded through legal aid. The bill shows that Simon Power Minister of Justice has acted speedily to address the issues identified by Dame Margaret’s report. We are confident that this package of changes will help build more confidence in the public that the legal aid system will provide a quality service for those who need it while giving taxpayers value for money. 
STUART NASH (Labour) 
: 
 We are debating Part 2 of the Legal Services Bill. I want to talk about clauses 6 7 and 8 and I will go on to talk about schedule 1 if I may because I think some of these things need to be clarified for the benefit of a lot of people. Before I start on that I will say that Simon Bridges commented that about 40 percent of the bills going through the Committee are from the Justice and Electoral Committee. I find it quite surprising that the Minister of Justice has decided to resign. I wonder whether the reason is that he feels he is the only one in Cabinet who is doing any work. He is sick of it and he realises that there are better options out there. The Minister of Justice is sick of carrying the National Government. He seems to be the only one with a plan; no one else on the Government side of the Chamber has a plan. 
I will come back to the bill. Part 2 deals with when legal aid may be granted. I am not a lawyer but I am aware that there are two types of cases: criminal matters and civil matters. Clause 6 deals with criminal matters. A lot of the arguments we read in the press or hear in the pub or Cosmopolitan Club are from New Zealanders who are saying “Goodness me! That guy has just been done and he is appealing under legal aid. That is just not right.” But if we look at Subpart 1 and we understand the rule of justice we see it is a fundamental tenet of our legal system that everyone has the right to a fair trial. The point I want to make is that clause 6 sets out the proceedings for which legal aid may be granted in criminal matters. It actually lists them: “criminal proceedings in a District Court a Youth Court the High Court the Court of Appeal or the Supreme Court:”. What you have here is that—not you Mr Chair; I know you will never need legal aid—any New Zealander who faces a criminal matter in any court has the right to have legal representation. That point underpins our whole democracy no matter how unfair that may be. 
Clause 7 talks about the proceedings for which legal aid may be granted in civil matters. People may be surprised to learn that subclause (1)(e) provides that legal aid may be granted if the commissioner considers that the case is one that requires legal representation. The requirement for that representation may be in the Maori Land Court the Maori Appellate Court the Employment Court the Employment Relations Authority or any other administrative tribunal or judicial authority. 
Hon David Parker 
: What about the Privileges Committee? 
STUART NASH 
: Possibly it could be in the Privileges Committee. Mr Parker brings up a good point; I think that legal aid has been used in this area. 
I turn to clause 8 and the points Mr Robertson was making about when aid can be granted. It can be granted in criminal matters when the applicant is a natural person and that assumes that a body corporate or a company cannot apply for legal aid. It applies only to a natural person. Subclause (2) states: “When considering whether the interests of justice require that the applicant be granted legal aid the Commissioner—(a) must have regard to” a number of matters. Subclause (3) states: “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance the Commissioner must … have regard to the applicant’s income and disposable capital as set out in Schedule 1.” The definition of “capital” in schedule 1 states: “capital in relation to an applicant for legal aid means that person’s total assets after deducting—(a) the amount of any debts secured against those assets; and (b) the amount of the actual debts of the person other than those that are secured.” Clause 2 of schedule 1 also has a definition of “income”. 
This is quite an important argument. Members may recall a very recent case where a rather wealthy gentleman who had been a director of a finance company applied for legal aid. There was a huge hue and cry because people thought that a very wealthy man who had substantial assets was applying for legal aid. The perception is that those who apply for legal aid actually have nothing and cannot afford a lawyer. That man’s legal counsel must have looked at the definitions in the legislation applied the test and assumed that this incredibly wealthy man who still lived in a big house on Remuera Road in Remuera and drove a Porsche did not have sufficient capital and did not have a home. 
Hon DAVID PARKER (Labour) 
: 
 I want to also address the concern we have for the rising cost of legal services which the Minister addressed in respect of Part 1. As we heard from the previous speaker Stuart Nash Part 2 sets out the mechanisms to gauge when legal aid should or should not be granted. 
In the Minister’s contribution on Part 1 he said that there is an expectation that costs in the legal aid system are going to increase. There are two drivers of that. If more people are getting legal aid for mainly criminal matters which is one of the big— 
Hon Simon Power 
: No. 
Hon DAVID PARKER 
: No more people are getting it? It has flatlined has it? 
Hon Simon Power 
: I wouldn’t say flatlined but it’s not the biggest area. 
Hon DAVID PARKER 
: It is still going up. It is not going up quite as fast as the rate of crime but it is still going up a little bit. I am sure that part of it is just the increase in some sorts of crime particularly serious violent crime which is on the increase and will flow through to legal aid costs. That situation is obviously of concern. The underlying way to deal with it is not through legal aid legislation but through better interventions earlier in life so as to reduce the rate of offending. 
Civil legal aid is another area of concern to the Opposition because it is plain that the cost of living is rising for most New Zealanders—not just petrol prices. I admit that petrol prices are largely beyond the control of the Government— 
Grant Robertson 
: Except for the GST. 
Hon DAVID PARKER 
: —except for the GST increase that is right—but in respect of most other cost increases National does have to accept some responsibility after 2 years in Government and two Budgets. 
Hon Trevor Mallard 
: Can I put a point to the member? If they had done their public transport the way that they should have— 
The CHAIRPERSON (Hon Rick Barker) 
: We are on Part 2 of the Legal Services Bill. 
Hon DAVID PARKER 
: The point I will come back to is that if these costs are not being met by the legal aid system it is yet another area where costs will be transferred to New Zealanders from the State. The cost of living pressures on New Zealanders will be getting worse as a consequence of more of the total amount that is required to be spent on legal services in New Zealand being met by New Zealanders and less by the Government. 
I am not as members will have heard from earlier contributions saying that all legal services ought to be funded by the Crown. I am not saying that at all but the cost of living pressures that are being borne by people from increased electricity prices through to legal services are something that we on this side of the Committee are concerned about. 
When it comes to clauses 10 and 11 which set out when legal aid may be granted in civil matters I would be interested to learn from the Minister whether the income thresholds will be lifted to reflect the fact that the cost of living is rising ahead of wage growth through inflationary increases. 
We want to make sure that New Zealanders are in a position to effectively resolve their disputes through civil methods. One of the reasons we have courts is to stop people using uncivil methods to settle their disputes. If people do not have access to court processes they are more likely to resort to fisticuffs or employing stand-over tactics to resolve their disputes. The importance of civil proceedings in maintaining civil society is not to be underestimated. For civil proceedings to be a real avenue for people to resolve their disputes people have to be able to access justice as Grant Robertson said in an earlier speech. 
We are interested in the fact that wages are not rising as fast as inflation—that is people are facing an increase in the cost of living that is not reflected by their average earnings. People who are unlucky enough to be made unemployed through redundancy—following the earthquake for a small proportion of people in Christchurch for whom we feel very sorry but also elsewhere in the country before the earthquake and no doubt after the earthquake from other causes—need to be able to rely upon legal aid properly covering their costs otherwise they will not be able to access justice. Without access to justice they will suffer injustice which is something that this Parliament ought to be concerned about. In respect of Part 2 I invite the Minister to address— 
KEVIN HAGUE (Green) 
: 
 I begin by joining others in acknowledging the particular contribution that has been made by the Minister in the chair the Hon Simon Power to this Parliament and to previous Parliaments. It is a worthwhile contribution always. 
I had not intended to take a call on this bill but having had a good look at Part 2 it suggests a contribution I can make. I am a person who has some significant experience of the criminal law although I have always chosen to defend myself rather than to avail myself of legal aid. I am pretty proud of my record of acquittals I have to say on criminal charges which probably exceed that of most legal aid lawyers. I want to pick up on this theme that several speakers have mentioned this evening of a universal right to access to justice. That seems to me to be pretty fundamental. What has drawn my attention is clause 8(1)(c)(ii) which provides limitations on that right to access justice. I guess we need to be pretty confident if we are going to impose some limitations that those are reasonably justified limitations. The Minister has talked in this debate about his intention to put incentives in place in this overall reform programme in the justice arena. I am concerned that clause 8(2) lists a series of grounds that the commissioner is required to take into account when applying clause 8(1)(c)(ii). Bearing in mind the incentives that the Minister is putting in place in the bill it effectively invites the commissioner to use those grounds to deny legal aid. 
What I am concerned about is that some of those grounds seem to be not relevant to determining what the interests of justice might be. I will not address all of them but if I could perhaps just draw attention to clause 8(2)(a)(i) regarding whether the applicant has any previous convictions. The commissioner is invited to take that into account in determining whether the interests of justice are served by granting legal aid in relation to some new offence. It seems to me that previous convictions cannot be relevant to whether the interests of justice are served by a person who is accused having access to legal aid—access to justice—in a given case. It seems to me that this has probably arisen because clause 8(1)(c)(ii) relates to the situation where an offence is punishable by less than 6 months’ imprisonment and that is probably considered to be a relatively minor offence where the consequences are not so severe in the case of a conviction. However the consequences of a conviction that carries less than 6 months’ imprisonment may in fact still be extremely severe for the person who is facing that charge. I invite the Minister to perhaps comment on how previous convictions might possibly be relevant to determining what the interests of justice are in the case of a person charged with some new offence. That is all I really had to say on this part. 
STUART NASH (Labour) 
: 
 I would like to talk about clause 8(3). This is in relation to when legal aid may be granted in criminal matters. It states: “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance” we basically have to go to schedule 1. I have a couple of questions and one of them is to do with clause 4(4) of schedule 1. It states: “Where an application for legal aid for a civil matter is made by a minor aged 16 years or over the Commissioner may treat the resources of the following persons as the resources of the applicant: (a) any person who under any agreement or court order is liable wholly or partially to maintain the applicant; or (b) any parent foster parent or step-parent with whom the applicant is living.” 
I wonder whether—let me give a hypothetical example—if a university student commits an offence and goes before the courts the parents’ income means that the student is not eligible for legal aid. I know that students do silly things sometimes. The last thing they want is their parents to know what they have done but this may fall under this clause. We can look at the definitions in schedule 1 as to when one can and cannot have legal aid. I will go to clause 2 “Meaning of income”. It states: “(1) In relation to an applicant for legal aid ‘income’—(a) means the person’s total gross income during the 12 months immediately before the application for legal aid”. I am not too sure where the income level sits but if we understand that 75 percent of New Zealanders earn under the average wage I am assuming that probably about 75 percent of New Zealanders are eligible for legal aid because they would probably come underneath that total gross income test. 
But if we go again to clause 2(1)(c) of schedule 1 it includes a benefit. If a person is on any sort of benefit then that is included in the income test except where the person is receiving an orphans benefit an unsupported child’s benefit a child disability allowance an emergency benefit payment or an accommodation supplement. Again for example I am wondering whether if those dreadful people we have seen in Christchurch who were looting etc. are on an emergency benefit they will still be eligible for legal aid if they are earning above the income threshold that is set here. Those are just a couple of anomalies I would not mind having answered. Also if one receives a special benefit or a disability allowance that is not counted in one’s income for that year when determining whether one is eligible for legal aid. 
Again under schedule 1 clause 3 talks about the meaning of disposable capital. It states: “(1) In relation to an applicant for legal aid ‘disposable capital’ means that person’s total assets after deducting the amount of any debts secured against those assets and after deducting—” the interest that a person has in a home equity and that sort of carry on. Again I am assuming this is the test that the former company director of the failed finance company used when that person’s lawyer put forward an application for legal aid that was turned down. I suspect that if it had not been turned down there would have been such a hue and cry that there may have been revolts in the street so that was not a bad outcome. 
But another interesting thing is that in clause 4 of schedule 1 the resources of a spouse or partner—or parents of a minor which I have talked about—are also counted in determining whether a person is eligible for legal aid. I quote: “(1) Any resources of a person’s spouse or partner must be treated as that person’s resources unless—(a) the person is living apart from his or her spouse or partner; or (b) the person and his or her spouse or partner have contrary interests in the matter …” . With regard to “spouse or partner” I am assuming again that when we talk about a partner we are talking about a legal definition of “partner” as in the matrimonial property Act or something so I assume that the partners have to have been together for more than 2 years. It would be dreadful for example if someone had hitched up and moved in together and then 2 months later after being together for 3 months this person was up before the courts and could not get legal aid because it was determined that his or her partner earned above the income threshold. I am quite curious about the test of who a partner is. We all know what a spouse is because that assumes marriage but I am just a little bit unaware where the test for a partner would kick in. 
PAUL QUINN (National) 
: 
 I move  
That the question be now put 
. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 First of all I will place on the record of the House—and I am sure there will also be an opportunity to do so later—my admiration for the work of the Minister of Justice across his portfolios and as a member of Parliament. I have said publicly that he is a good honest straightforward person to work with and someone who keeps his word when he gives it. He is sometimes slightly reluctant and will not agree to do things that we would like him to agree to do as far as both the House and his policies are concerned but he is a person of absolute integrity and is someone who will be missed from the House. I think it is important that that is made clear. 
As I have said in the past I have seen people come and go across the House over a number of years. The below-average ones are numerous and this member is one who makes up for a lot of them. I think it is slightly sad that so soon after the Minister’s announcement he is caught in the chair and the person who is responsible for the fact that he is caught in the chair at the moment is sitting not more than 2 metres away from him. I think it is important that there is an understanding of how the processes of the House should work. 
It is good to have someone in the chair who understands that and who I am sure if he was responsible for some other legislation would not have got into the pickle that is resulting in the intensive discussion of a bill that I think it is fair to say we used to agree with. But now that my colleague Charles Chauvel has had a good look at this part in particular he is beginning to have some pretty serious doubts about it. As far as the general principle of the bill goes I think all of us know that there are some things to be done in the legal aid area and the bill is an attempt. I think there are a number of interesting points. 
I am not sure whether the Maori Party has been properly apprised of clause 5 of schedule 1. This clause effectively states that someone’s interests in Maori land have to be taken into account in working out whether that person can afford to pay for lawyers. Well that might be the equality of everyone before the law. But we know that the very way Maori land becomes Maori land under the Te Ture Whenua Maori Act 1993 is that it cannot be disposed of as other land can be. I think there is a fair point in there that the rent from the land the income from that land should properly be considered as an individual’s income. But I think that in considering disposable capital we should not be suggesting that Maori can dispose of Maori land. I ask Tariana Turia whether she supports the fact that Maori should have to dispose of their interests in Maori land. 
Paul Quinn 
: It doesn’t say that. 
Hon TREVOR MALLARD 
: That is exactly what the clause states. “The disposable capital of the applicant includes Maori land and any interests in Maori land unless—(a) the application is made in respect of proceedings in the Waitangi Tribunal; or”— 
Paul Quinn 
: Disposable capital does not mean that you have to dispose of it. 
Hon TREVOR MALLARD 
: But that is the very point because if one cannot dispose of it it should not be included in the definition of disposable capital. Yet the bill does include it in its definition of disposable capital. 
If Paul Quinn cannot read that provision he should get someone to read it to him—he should get someone to read it to him. If he the leading Maori in that party the leading Maori on justice issues in that party and the only Maori to get a justice bill through Parliament cannot understand that this bill requires Maori to sell their land when they cannot sell their land then that is particularly sad. I wonder what Tau Henare thinks about this issue. Has Paul Quinn discussed the issue with his colleague Tau Henare? 
It is clear that Tariana Turia does not care about Maori land being sold down the river under this clause in a way that one would expect from the Attorney-General but not from the Minister of Justice. It is also worth going back to some of the other matters. The member Tariana Turia is looking and laughing. She thinks it is funny that Maori land should be taken. 
Hon Tariana Turia 
: I raise a point of order Mr Chairperson. I think it is inappropriate for that member to lie in the Chamber. I was not smiling or laughing. The comments he made were inappropriate. 
The CHAIRPERSON (Lindsay Tisch) 
: I hear the member. The last 5 minutes have been quite robust and what a member says is not a reflection on that member I am sure. I would like the debate to continue in that vein. 
Hon TREVOR MALLARD 
: I raise a point of order Mr Chairperson. 
The CHAIRPERSON (Lindsay Tisch) 
: I am dealing with the first point. I think the point of order that the honourable member has brought up is not substantiated. Members can make comments. If the member feels that she is aggrieved by what he has said then that is a different matter but I did not take that out of the comments that were said. 
Hon TREVOR MALLARD 
: I raise a point of order Mr Chairperson. The member said I was lying in the Chamber. That accusation requires a withdrawal and an apology. That has always required a withdrawal and an apology. I have taken offence. 
The CHAIRPERSON (Lindsay Tisch) 
: I am on my feet. I am dealing with the point the member brought up. I have said it is a clean slate; we are starting again. I heard what the member said. I did not agree with what that member said. We are starting from scratch. 
Hon TREVOR MALLARD 
: I raise a point of order Mr Chairperson. I move that the Speaker be recalled to get a ruling on that matter. The reason is that it is always required when a member is accused of lying in the Chamber that it be withdrawn and apologised for. 
The CHAIRPERSON (Lindsay Tisch) 
: Speaker’s ruling 42/5 states that a member cannot say that another member is lying and I appreciate that. Speaker’s ruling 42/5 states: “A particular mode of expression that has been ruled out of order consistently has been the use of the word ‘lie’. Many other expressions can be used to say that a member is stating something that is incorrect—and that is material for debate which goes on in the Chamber every sitting day.” This is the situation: the member complained that the honourable member said that he was lying. If that is the case then I ask the member Tariana Turia to apologise for that comment. 
Hon Tariana Turia 
: I raise a point of order Mr Chairperson. 
The CHAIRPERSON (Lindsay Tisch) 
: No; I have actually asked whether the member said that that member was lying if so I ask the member to withdraw that comment. That is what I am asking. 
Hon Tariana Turia 
: I withdraw the comment. I raise a point of order Mr Chairperson. I am highly offended by the comments that that member also made that were completely untrue and I want him to apologise to me. 
The CHAIRPERSON (Lindsay Tisch) 
: There is another Speaker’s ruling 44/4 which I shall refer to. It states: “It is not the Speaker’s duty to intervene if objection is not taken to the language used by one member towards another unless the Speaker considers it is such language as requires the Chair’s immediate intervention.” This is the situation: the member has withdrawn her comment. She took exception to it— 
Hon TREVOR MALLARD 
: But I said she was smiling and laughing. One cannot take exception to that. 
The CHAIRPERSON (Lindsay Tisch) 
: The member has taken exception. Let us start from scratch shall we? Under Speaker’s ruling 44/5 I ask the member to withdraw the comment. 
Hon TREVOR MALLARD 
: I raise a point of order Mr Chairperson. We have had the back and forth on that issue. The member was smiling. The member was laughing during my speech. I drew attention to that fact— 
Hon Tariana Turia 
: No I wasn’t. 
Hon TREVOR MALLARD 
: It is a matter of fact. The member might not have been laughing or smiling at me but she was laughing and smiling. 
The CHAIRPERSON (Lindsay Tisch) 
: It is not a matter of personal reflection whether someone was smiling or laughing or whatever. This is getting out of hand. Let us leave it at that. 
Hon TREVOR MALLARD 
: I will repeat the comments that I made. I find it appalling that the Maori Party is supporting legislation whereby the asset of Maori land which is non-disposable is taken into account when making a decision about the assets of Maori who are charged before the court as if that land was disposable. As I said earlier I think it is fair enough that the rent the income Maori get from Maori land should count as far as their income is concerned but to pretend that that land can be disposed of in those circumstances is wrong. I think it is shocking that Tariana Turia is sitting there while this legislation is going through. It has been pointed out to her but she is not on her feet defending the principle of the inalienability of Maori land. We thought that that was the case. Most New Zealanders think it is the case. We think that under the Te Ture Whenua Maori Act 1993 it should be the case. So why is it that during the debate on this legislation the member is sitting there and letting those assets be taken into account as if they were alienable even though they are not? 
Paul Quinn 
: It does not. 
Hon TREVOR MALLARD 
: That is exactly what it does. As I said to that member before he should get someone to read the bill to him. He could get Mr Finlayson to explain it to him. We know he is not the sharpest pencil in the box but if he takes his time and works through it slowly even Simon Bridges I think within an hour or two could get him to understand. Within an hour or two Simon Bridges could explain it to him. 
I will go back to the question of trusts and money held in trusts. I seek an assurance from the Minister in the chair the Attorney-General that money held in trust funds is taken into account when considering schedule 1 of this bill within the meaning of disposable capital. If someone has a sole interest in a trust or has a sole beneficial interest in a trust I want an assurance that that trust is taken into account when the Crown is working out whether it is disposable capital. 
There is a well-publicised case in the court currently which I am sure the Attorney-General is well familiar with. I am not asking him to go into the details of that case but the principles are pretty well established. There is no doubt in the case that the individuals have large trust funds. They have a large amount of money tied up within trusts but they are still making applications for legal aid on the basis that they do not have that money. That is wrong; it is a rort. A lot of New Zealanders pay good taxes and they should not pay for those multimillionaires who have their money cut away within trust systems. New Zealand taxpayers should not pay for those people to get legal aid when there is a pile of Kiwis who are not getting the legal aid they should be getting and when the criteria are far too tough. 
It might even be that some of us if we knew that this area was being cleaned up and tidied would support and be happy enough to see a flattening off in the legal aid budget. But again I say that some changes being made in this bill are useful. 
I also ask the question about the 6 months’ imprisonment. There is some sort of assumption in the bill about going to prison for a crime that merits less than 6 months imprisonment—or in fact about not going to prison. There is a judgment made about the likelihood of imprisonment which is quite a hard one to make. There are cases where at the beginning of the case it seemed unlikely that even if defendants are charged with an offence that earns under 6 months’ imprisonment—and this is very very substantial; this part is the core of the bill and I think that a number of us want to make at least four contributions—and are likely to lose their liberty through not being properly represented even though the charges are such— 
JOHN HAYES (National—Wairarapa) 
: 
 I move  
That the question be now put 
. 
CHRIS HIPKINS (Labour—Rimutaka) 
: 
 I am very happy to take a call on Part 2 of the Legal Services Bill. The points that I will raise relate primarily to coverage under the legal aid system particularly with regard to clause 7 in Part 2 which relates to proceedings for which legal aid may be granted in the case of civil matters. One of the issues that I will raise with regard to this bill and with regard to what I believe is a growing inequity in the system is that ACC cases are not covered by the legal aid system according to the clauses in this bill up to the point at which they reach the District Court. 
We are seeing within the accident compensation system a dramatic increase in the number of ACC cases being declined and therefore a dramatic increase in the number of cases going to a disputes review. When people have had their accident compensation claim rejected and their cases go to an ACC disputes review the amount of legal assistance available is limited to something like $700 or $800. It is probably significantly less than what they would get if they were entitled to legal aid for that particular process. Through the ACC disputes process we are seeing that the Accident Compensation Corporation certainly has access to a lot of highly paid high-quality legal assistance but those who are seeking review and seeking some redress if they believe they have been treated unfairly do not have that same access to legal support. 
My question is that if the accident compensation system is to become a much more litigious system which seems to be happening under the tenure of this National Government then why should somebody taking a review proceedings through the ACC system not be able to obtain legal counsel and legal assistance? This is a very real issue. For example the number of surgery claims for accident compensation that were rejected doubled from 2008 to 2009. In other words under the National Government the number of people who have applied for elective surgery through ACC and who have been turned down has doubled. What has that resulted in? It has resulted in the number of reviews—in other words the number of people who have been saying that because their case has been rejected by ACC they want it reviewed by going to ACC’s Dispute Resolution Service—almost doubling during the tenure of the National Government as well. The number of decisions being overturned through that process has increased by about 400. We are seeing that ACC’s more instant reaction quite often is to decline a case on the basis that someone can then take a review. 
Basically the corporation is pushing people down a much more legal route in order to get their accident compensation entitlements. In relation to this bill and the coverage of the legal aid system if the Government is to take a much stricter approach towards ACC claimants it raises the question of why those claimants should not be able to get quality information and quality advice on their entitlements. Everybody pays into the accident compensation scheme; everybody gives up something in order to be covered by accident compensation. What do they give up? They give up their ability to sue in the case of accidents. They cannot sue in the case of accidents. But we are seeing that the corporation is basically clamping down and is not giving people the things they are entitled to under the scheme. If people are not getting what they are entitled to then I ask why they should not be able to get legal advice to make sure their entitlements are being upheld. They are paying for it and they are giving up their right under the common law to sue in order to be part of the ACC scheme. With the increasing number of complaints about the corporation and the increasing number of reviews there is a legitimate question to be asked about whether legal aid should be extended to those people. 
I will move on next to talk about proceedings before the Tenancy Tribunal which are covered under this Legal Services Bill; I think that that is incredibly important. One of the issues we are seeing with State housing under the tenure of the National Government is that it is basically moving away from being a housing provider of last resort to one where the Government will use the legal processes available to it in order to evict tenants. In my electorate we have an example at the moment where the Housing New Zealand Corporation is using a 90-day eviction notice to remove some people from the neighbourhood of Pomare because it cannot actually make a case before the Tenancy Tribunal to remove them. The Government is basically using the 90-day notice period which cannot be appealed through the Tenancy Tribunal to evict people. That is a small example of where we are seeing the Housing New Zealand Corporation using many more legal proceedings against its tenants. Therefore I think it is really important that those tenants have full access to the Tenancy Tribunal’s services. I do not believe that the Housing New Zealand Corporation is upholding its part of the bargain with regard to providing quality tenancies for State house tenants. For example it is not living up to its maintenance criteria as it should do and tenants should therefore be able to take relevant action where they need to do so. 
Those are the points I had with regard to coverage. I will also pick up the points raised earlier with regard to the financial criteria that are used to determine whether somebody is eligible for legal aid and the asset tests that they are subjected to. The principle behind this should be that in order for a certain asset to be considered under the financial test the person has to have reasonable access to that resource. The principle is that the State should not be providing legal assistance to somebody who has the financial means to provide it for themselves. If that is the principle then I fail to see why Maori land which is shared and cannot be disposed of can possibly come within that financial test. It is not as though the person who will potentially be declined legal aid will turn round and say that he or she needs money for a lawyer and will therefore hock it off. That person simply could not do it. Therefore to allow for the situation where someone could be denied legal aid because of some interest in Maori land that he or she cannot sell and cannot dispose of simply means that person will be declined legal aid when otherwise he or she would get it. That is an unjust outcome and it is blatantly unfair. 
I am looking forward to the contributions from the Maori Party—from Tariana Turia the co-leader of the Maori Party who has been conferring I think with the Associate Minister of Maori Affairs about this matter for the last 10 minutes or so. I am assuming that they are working out what they will do about it and that in a few moments one of them will stand up and tell us what they are going to do about it because it is blatantly unfair. I think that if Maori Party members claim to be the representatives of Maori interests in this Parliament—and I do not believe they are—then this is something they should have a view on. I look forward— 
John Hayes 
: So who is—Hone? Metiria Turei? 
CHRIS HIPKINS 
: Hone Harawira might well come to the Chamber later on and have a go on it. I would quite like to hear what he has to say on that matter and I think he may well take a call on that. I would like to hear what Simon Bridges has to say on that matter. I would like to hear what Paul Quinn has to say on that matter so rather— 
Hon Trevor Mallard 
: No don’t go that far. 
CHRIS HIPKINS 
: I would even go that far. I would quite like to hear whether Paul Quinn has a view on whether Maori land should be taken into account when somebody is being denied access to legal aid. 
Hon Trevor Mallard 
: It’s part of the definition of disposable assets. 
CHRIS HIPKINS 
: Yes it is part of the definition of “disposable capital”. I think Paul Quinn should have a view on that. 
Paul Quinn 
: It has to be disposable to be disposable. 
CHRIS HIPKINS 
: That is exactly the point. I note for the benefit of people who are listening at home or watching on TV that Paul Quinn says that it has to be disposable to be disposable. That is what he has been yelling at us yet the bill does not actually cover that. The bill as it is being passed means that it will be considered. I think that Simon Bridges should have a chat to Paul Quinn to stop him making a bit of a fool of himself and read the bill slowly to him. Perhaps then he might— 
Paul Quinn 
: You’re the fool. 
The CHAIRPERSON (Lindsay Tisch) 
: I am not the fool in this. The member cannot use the word “you”. 
CHRIS HIPKINS 
: Thank you very much Mr Chair. By and large clause 2 tidies up access to legal aid. I think that is really important particularly in the current context when people are out there battling away and struggling to find money for the basics. I think it is important that when they find themselves involved in any kind of legal proceeding they should have financial assistance to do so. If they cannot afford to pay the power bill and to put food on the table for their families—which increasing numbers of people are finding under the National Government—then they certainly will not find the money to fund a legal proceeding. Making sure that we have a legal aid system that provides for those people is very important. This bill tidies up the legal aid system and addresses many of those concerns. 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I move  
That the question be now put 
. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 I will go back to clause 8 and there is a particular part of clause 8 that I want to refer to in order to help out Mr Quinn which is clause 8(3): “When determining whether an applicant has sufficient means to enable him or her to obtain legal assistance the Commissioner must except as provided under section 9(1) 
have regard to the applicant’s income and disposable capital as set out in Schedule 1.” Mr Nash did an excellent job earlier on of working through some of the issues within schedule 1—for instance the resources of a spouse or partner. 
Clause 5 of schedule 1 is about resources relating to Maori land. The clause describes an applicant as a person applying for legal aid and how resources relating to Maori land will be brought into account: “The income of the applicant includes any rent derived from Maori land or interests in Maori land.” As Mr Mallard pointed out earlier on it is perhaps fair enough to look at rent derived from Maori land as being part of income derived and as something legitimate to be tested against to determine whether one has sufficient means or meets the insufficient means test. 
Hon Trevor Mallard 
: But if it’s put in a trust then it doesn’t count. If it’s Maori land then it does. 
GRANT ROBERTSON 
: That is right. Then we go on to clause 5(3)—this is the point—which states: “The disposable capital of the applicant includes Maori land and any interests in Maori land unless the application is made in respect of proceedings in the Waitangi Tribunal;”. That is the point. Now Mr Quinn tells us that that disposable capital is not disposable. Why then is the capital being described in the schedule as disposable capital if it is not disposable capital? That problem has been raised by members on this side of the Committee. Mr Quinn has gone very quiet now but the fact of the matter is that clause 5 of schedule 1 actually needs some explanation. Otherwise we are left with the situation of capital that Mr Quinn has told us is not disposable being considered disposable. That is part of schedule 1. I just wanted to help Mr Quinn with that explanation so he understands the issue being raised by members on this side of the Committee. 
But I will go back—and it is the nature of these kinds of discussions—to something Kevin Hague said. He raised with us earlier the question of what under clause 8(2) will be considered by the commissioner when he or she is obliged to consider whether the interests of justice merit someone getting legal aid. Kevin Hague raised some very interesting points as he worked though clause 8(2) around some of the issues that are supposedly part of the question of whether justice requires a person to receive legal aid. 
In my earlier contributions I mentioned that there was obviously a balance within legal aid. The most important principle is that people with insufficient means have access to justice and I discussed that issue in my first contribution. But there is a balance as to how we define that access and how we make sure that it involves a manageable amount of resources for the taxpayer and that legal aid is given to those who genuinely need it—and I talked about the test around withdrawal. But I think the question Mr Hague raised is very significant. For instance what is the relationship of “whether the applicant has any previous conviction;”—clause 8(2)(a)(i)—to whether the interests of justice are being served? That is a very legitimate question. In most cases—in jury trials for instance—juries are not made aware of previous convictions so why are we now using previous convictions as a determinant of whether a person receives legal aid? 
Those are important questions and it would have been good to hear from the Minister about how these provisions have come about. They may well have come over from previous legislation. I am not necessarily arguing that these provisions have been introduced brand new by this Government but they do raise the important question of the balance of access to justice for those with insufficient means with the ability of the taxpayer to be able to provide the resources that are needed. Obviously there do need to be tests but the tests under clause 8(2) require a bit more analysis and a bit more explanation because they start to provide limits. 
In relation to the issue of balance not only do we have in this bill the ability for legal aid to be withdrawn—which I mentioned in an earlier contribution—but we have the counterfactual to that which is that there are now provisions namely clause 51(7) that allow applicants to apply to the Legal Services Commissioner for review of a decision. An important part of the process is review of decisions and making sure that we have that balance. 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I wonder whether I could help Mr Robertson who has just resumed his seat. He made a contribution that was not complicated by any merit. Let us read clause 5 of schedule 1. The member carefully went through clause 5 and he noted paragraph (a) of subclause (3) but he omitted to refer to paragraph (b) of subclause (3) which states: “in the circumstances of the case the Commissioner considers that it would be inequitable to include all or part of the land or interest.” The point is I note for Mr Robertson’s benefit that the provision is of long standing. It was in the Legal Services Act 1991. It was also in the 2000 reform when he was running around after Helen on the ninth floor. 
Grant Robertson 
: I was in New York. 
Hon CHRISTOPHER FINLAYSON 
: Oh the member was in New York then; sorry. The fact of the matter is— 
Chris Tremain 
: He gets around. 
Hon CHRISTOPHER FINLAYSON 
: He does get around I must say; I am proud of that. But the provision was contained in the Legal Services Act 2000 so as I said the member made an unmeritorious point. The safeguards are there to ensure that no injustice is done to Maori. 
PAUL QUINN (National) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Lindsay Tisch) 
: The question is— 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. My point of order goes to the simple question of the ordering of calls. You have had a call from the Government and always the normal thing is then to look to the Opposition. 
The CHAIRPERSON (Lindsay Tisch) 
: I did indicate before that I would take one more call. When I asked the member behind you Grant Robertson to take a call I said I would take one more call and then the Minister said he would like to respond to some of the questions. A member has now moved the closure motion and I intend to put— 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. The precedents on this are absolutely clear. If there is a debate from the Minister there has always been on every single occasion that I have been here the opportunity to respond. Calls alternate across the Chamber. 
The CHAIRPERSON (Lindsay Tisch) 
: I hear what the member says. It is a matter for the discretion of the Chair. I have chosen to accept the closure. I indicated when the previous member spoke that I would be taking one more call which was Grant Robertson’s. The Minister then responded to some of the questions that had been asked and I have accepted the closure motion moved by Paul Quinn. 
CHARLES CHAUVEL (Labour) 
: 
 In respect of that ruling I wonder whether it would be appropriate for the Committee to seek further assistance. I move  
That the Speaker be recalled to rule on the allocation of calls and the acceptance of a closure motion.  
As my colleague Mr Mallard has said it is the usual practice of the Committee when the Minister in the chair has taken a call to invite responses. 
Motion agreed to. 
House resumed. 
Speaker Recalled 
The CHAIRPERSON (Lindsay Tisch) 
: Mr Speaker you have been recalled by the Labour Opposition on the basis that I prematurely accepted a closure motion when the previous speaker before accepting the closure motion was the Minister in the chair. I had indicated prior to the Minister speaking that I would take one more call which had gone to a Labour member. This debate has gone on for 1 hour and 15 minutes and there have been 12 Opposition calls and one Government call. I believe that accepting the closure motion is the prerogative of the Chair and I acted accordingly having first indicated that I would take one more call which was given to Labour at the time. Then the Minister responded to some of the questions that previous Opposition speakers had brought up. I believe that accepting the closure motion was within the Chair’s discretion and I acted accordingly. 
CHARLES CHAUVEL (Labour) 
: 
 I thank the Chairman for his very fair summary of the matters relating to the motion that led to your recall Mr Speaker. The reason for seeking a definitive ruling from the Speaker on this matter was as a result of the circumstances of the debate when as the Chairman has said he indicated that there would be one call remaining. But after that call the Minister in the chair chose to take a further call in reply and it was clear from the matters that were raised in the Minister’s reply that new matters were raised in respect of which members on this side of the Chamber wished to deal by way of further reply. The Chair failed in my submission to give the Opposition the entitlement to take a call in response to the new matters raised by the Minister and indeed there was not even a reference by the Chair to the Opposition attempts to seek a call. There was simply a nod to the Government member who sought the closure motion. So in my submission it would be certainly consistent with precedent and normal good practice on behalf of the Committee of the whole House if in the circumstances that I have described a right of reply were acknowledged to the matters raised in the Minister’s address. 
CHRIS TREMAIN (Senior Whip—National) 
: 
 Members on the other side of the House have failed to raise any particular Standing Order or Speaker’s ruling to refer to as a precedent for what in my opinion is an unnecessary recalling of the Speaker. I believe that the Chair at the time had indicated quite clearly how he would proceed with the process and then proceeded to use his discretion which he quite rightly has in this process. I ask that you rule on this matter Mr Speaker. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 There are a couple of matters. Without wanting to be too critical of the Chair today I make as a first submission the fact of a Chairman saying he is prejudiced about a further contribution from a Labour member—as he did before that member gave that contribution—because the Chair is required to consider a closure on its merits and based on the contribution that had come from the previous speaker. To indicate that effectively no matter what is said the Chair will hear only one more contribution in my submission is not appropriate because the relevance of what is said by the member and the matters that are brought up by the member who is to speak are matters that should be considered. In indicating that only one more contribution would be taken the Chair might have thought that he was being generous in giving Labour another call but I think it indicates a prejudging of a matter that was not yet before members. 
The point I would like to make is that although there is no doubt that the Chair can call anyone he wants when he is in the Chair—when we are not in a set-piece ordered debate where the order from the Business Committee has been set—it has been a very longstanding practice that in the Committee of the whole House where members are calling from alternate sides of the Chamber the practice is to alternate calls. I can accept that the Chairman has the right not to do that; he can call anyone he likes. But the custom and practice of the Committee has been to alternate calls and certainly I do not think that in the time I have been in the House I have ever seen a movement while four or five Opposition members have been going for the call going straight from a Minister in the chair—who made a controversial comment and one that a number of members opposite thought contained an error—to someone who was a designated hitter if you like as far as the closure motion was concerned. 
So there are a couple of matters for consideration. I restate them from my perspective: the first is whether in fact there should be an indication of prejudice on the part of the Chairman about the number of further calls which means effectively that he is not prepared to take into account what has been said by members; and secondly whether the normal custom and practice of the Committee of alternating calls should be breached in this particular way. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: It is unusual I know but as a number of comments have been made about the Chair I wonder whether the Chair himself would like to make any further comments. 
The CHAIRPERSON (Lindsay Tisch) 
: I do not believe that by indicating to the Opposition that I would accept one more call was prejudicing what might be said at a later date. As I indicated earlier there were 12 calls by Opposition members and one Government call. The debate had gone for well over an hour. I believe that I acted with discretion that to seek a closure motion following the Minister was right and proper and that I acted accordingly. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 The thing I am now getting really anxious about is the indication from the Chairman that he sought a closure motion. The Chairman should never seek—[ 
Interruption 
] I am sorry; I think that is what the Chairman said. What did the Chairman say? 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: We are not having a debate. 
Hon TREVOR MALLARD 
: I do not want to debate but that is what I thought the Chairman said—that he had sought a closure motion. That of course would be very wrong. 
The CHAIRPERSON (Lindsay Tisch) 
: I did not seek a closure motion. Government members moved closure motions on many occasions and I did not accept them. Mr Quinn moved a closure motion. I looked at Mr Quinn and I accepted his closure motion. That was when the honourable member first raised a point of order and subsequently there was a motion by Charles Chauvel to recall the Speaker. I did not seek a closure motion. It is not my role to seek a closure motion. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I apologise to the Chairperson. I thought he said something that he obviously did not say. I apologise because I think I reflected on his integrity and that would be wrong. I hope the Chairperson knows that we think he is a person of the utmost integrity. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Thank you. I hoped that was what the member was thinking because I certainly did not hear the Chairperson say he had sought a closure motion. That was not what I heard him say. I am pleased that we have clarified that. 
I start by saying it is entirely usual for the debate to flow backwards and forwards and for calls to be taken from one side and the other. That is a longstanding practice. However having said that I say the rules are very clear. The question of who gets the next call is at the sole discretion of the Chairperson—no one else. It is not a matter on which any correspondence can be entered into. It is at the Chairperson’s sole discretion and that must always remain the case. The second point is that if members go through the Standing Orders and the Speakers’ rulings they will see that overwhelmingly previous Speakers have ruled that the Chairperson is the sole judge on whether a motion of closure ought to be put to the Committee. 
Hon Trevor Mallard 
: I am not arguing about that. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Well I just want to make sure that that is at the Chairperson’s sole discretion. No Speaker has overruled a Chairperson on that issue and this Speaker is not doing so. I make it clear that that is the Chairperson’s decision. It has also been the case that the Chairperson is the person who listens to the ebb and flow of the debate and is the person best placed to see whether the Committee is of a mind to accept a closure motion. A closure is not the Chairperson’s decision; it is the Committee’s decision. We all know that although those may be the rules the reality is usually somewhat different. If a closure motion is not accepted we know the consequences that flow from that as well so it is unlikely that a Government will vote against its own closure motion. I accept that. I say to members that as far as the Speaker is concerned the decision to put a closure motion to the Committee is the Chairperson’s and the Chairperson’s alone and I accept the judgment of the Chairperson in this particular case. 
In Committee 
Debate resumed. 
Part 2 Legal aid  
(continued) 
A party vote was called for on the question  
That the question be now put. 
Ayes 67 
New Zealand National 57; ACT New Zealand 5; Maori Party 4; United Future 1. 
Noes 51 
New Zealand Labour 42; Green Party 9. 
Motion agreed to. 
Part 2 agreed to. 
Part 3 Administration of legal services system 
CHARLES CHAUVEL (Labour) 
: 
 I wonder whether we could hear from the Minister in the chair the Attorney-General the Hon Chris Finlayson on a number of matters that are of particular interest to the Opposition. As I said in my initial comments before the dinner break to date the Opposition has chosen to offer support for the Legal Services Bill but obviously that continued support is subject to its being satisfied about the concerns that it wishes to raise. 
The first matter that I would be very interested to hear the Minister speak on is the issue of how it is intended that the Legal Services Commissioner a role that is to be created under clause 70 is to function. That person is to be an existing employee of the Ministry of Justice or is to be appointed as an employee of the ministry on taking office as the commissioner. The first issue is what is the guarantee if any that the commissioner will not simply be a cipher for the Secretary for Justice—subject to in particular budgetary constraints—and will ensure that the overall aims and objectives of the legislation are met? Why should the Committee assume given the wording of the legislation that there is any desire on the part of the Government to see the commissioner in particular take care that the objects of the legislation are met? What safeguards does the Minister think are built into the legislation to ensure that the commissioner really does have regard to the purposes and the functions set out for the commissioner particularly under clause 71? 
I anticipate that if the Minister does choose to take a call and reply to the issues I am raising he may point to clause 71(2) which describes the duty to act independently in respect of the functions set out in clause 71(1). But is that really enough of a safeguard given the breadth of the transfer of powers that is proposed? Of course what is happening here is that an independent body which is at the moment a Crown entity at arm’s length from the Crown is being taken into the Crown itself. Presumably one of the reasons for taking those powers closer to the Crown is an economic one and I think it would be helpful if the Committee were to hear from the Minister on whether he feels that there are sufficient safeguards as to the exercise of those powers and particularly whether they will not simply be able to be exercised at the direction or the discretion of the person who is in charge of the Ministry of Justice. 
The second point relates to the ability of the commissioner to delegate powers functions or duties which is set out in clause 72. Although there is a power of delegation for the commissioner there is no guarantee that once any delegated powers are exercised they will be exercised in an independent way. Even if the guarantee of independence conferred by clause 71(2) is pointed to by the Minister there is still the ability to delegate powers under clause 72. There is no requirement that the delegate of the commissioner should act independently. I think those are significant matters that we need to hear about from the Minister. 
The next issue that the Opposition has a particular concern about relates to Subpart 2. This is the quality assurance provision in the legislation. At the moment there are a couple of important quality assurance provisions in the existing legislation. There is a public advisory committee which when we debate Part 4 we will see is disestablished by clause 118. There is also a review panel which is to be disestablished by clause 128. What is proposed in place of these two means of assuring that legally aided persons receive reasonable quality in terms of the legal services that they consume is the regime to be set up by clauses 74 to 83. It would be helpful to hear from the Minister on what deliberations have occurred inside Cabinet when comparing the existing quality assurance provisions and assurance of public input into the system with the proposed provisions. Has there been such an exercise? Can the Committee take any guarantee from the provisions contained in the bill as to whether this regime is likely to be superior or inferior to the one that exists at the moment? 
The other issues that it would be helpful to hear from the Minister about in respect of this part relate to Subpart 3 “Community law centres”. Clause 94 empowers the Secretary for Justice to enter into contracts with community law centres so that they can provide services to communities on the terms of the arrangement entered into with the secretary and then there are provisions concerning reporting and auditing. It is clear and hopefully a matter of consensus across the Committee that community law centres provide a very helpful and important service to the community. Again it would be helpful to hear from the Minister in the chair as to how these provisions compare with the existing law and in particular how the Government intends to ensure that the very good level of service provided by community law centres at the moment will continue under the regime set out in the legislation that is being considered by the Committee. 
Finally as far as the matters that I want to raise in this short call are concerned I was interested in the Minister’s view on Subpart 5 and in particular on clause 108 which deals with the limitations in respect of the disclosure of information. There is a provision in clause 108(1) that every person should have the same privileges in relation to giving information answering questions and producing documents in respect of an application for legal aid for a civil matter as any witnesses have in court. Then there are provisions in the remainder of clause 108 that effectively derogate from that provision. It would be useful to hear from the Minister as to the levels of protection that are provided for people who go through the process of providing information. What protections are intended to apply to those people and how do they compare with those in the current law? Is this Committee being asked to derogate from those protections or does this legislation actually supplement them? I fear it is the former and I think it would be helpful to hear some sort of assurance from the Minister on that point. 
DAVID SHEARER (Labour—Mt Albert) 
: 
 I would like to pick up on my colleague’s discussion of the review authority and the independence of the review authority which clause 84 of the Legal Services Bill refers to. It is an important authority in the sense that it decides on an appeal. I think it is important that we spend a little time on thinking and working through how it functions and about the ability of the authority to deliver a competent decision that is independent both of the Minister and of the other parts of the judicial system. 
Clause 84(1) establishes the review authority and under clause 84(2) the Minister appoints one person to be the review authority. The bill further on states that the person is to be supported by a number of members of the Ministry of Justice. The function of the review authority is to review the decisions of the Secretary for Justice as set out in clause 82(1). Clause 85(2) states: “The Review Authority may review a decision of the Secretary only on the application of a person in respect of whom the decision is made.” So the integrity really depends and swings on the ability of that person to be seen both as independent and as capable and competent. 
Schedule 3 to which Part 3 refers sets out the provisions that apply to the Legal Aid Tribunal. Again there is a question of independence and how those people may be appointed. The term of office of the tribunal is 3 years although the bill does not give a maximum. A member of the tribunal can be reappointed—I am talking about the tribunal not the review office. I would like to hear from the Minister about the appointment process: how that appointment process proceeds whether we will see a maximum term of appointment and whether in custom it is generally intended that somebody would stay on for one term of office or perhaps for two terms. It would be interesting to hear from the Minister whether that is seen to be the case in this part of the bill. 
The tribunal again is serviced by the Ministry of Justice. The tribunal is serviced by employees of the ministry. The liability of the tribunal is set out in clause 6 of schedule 3 which states: “The Tribunal and members officers or agents of the Tribunal are not under any criminal or civil liability in respect of—(a) any act done or omitted in the course of the performance or exercise or intended performance or exercise of any of its functions duties or powers under this Act; or (b) any words spoken or written at or in connection with any review determination or direction to reconsider under this Act.” 
Looking at this part I think the provisions relating to both the review authority and the tribunal are well set out. But I come back to the point raised by my colleague Charles Chauvel about the issue of independence. Obviously the independence of this office is very much dependent on the way that the person and the tribunal are appointed and how they are able to carry out and do their job. The person who will be appointed as I understand it will be a lawyer of 7 years’ experience. The person will be qualified; I do not think there is any issue about that. But the continuation of service the time for which that person will stay on the tribunal or the review authority is an area that we would like to have some clarification on. The degree of independence given that the person is to be appointed by the Minister is also an issue of concern. 
KRIS FAAFOI (Labour—Mana) 
: 
 Thank you for the opportunity to speak to Part 3 of the Legal Services Bill. The previous two speakers focused on the review authority which I understand is contained under clause 86 of the bill. I want to change the focus of the Committee to clause 79 of the bill which establishes a safeguard for those who are applying for legal services under the bill but first I will have to refer back to Part 1 of the bill to talk about its spirit. 
The purpose of the bill as set out in clause 3 is “to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means; and (b) delivers those services in the most effective and efficient manner.” I think members on both sides of the Chamber want to ensure that that happens. But I think we need to make sure that we do not get into a situation where the legal services offered under this bill become second rate whether that be because of the quality of those who represent the applicants or the amount of resources that are afforded to that representation. The Hon Simon Power was in the Chamber earlier during the debate and he mentioned that there was a shortfall of about $405 million for legal aid services over the next 5 years. That of course is a major concern to members on this side of the Committee because as I said we do not want there to be a perception of a second-rate service when it comes to the legal aid that is offered under the bill. 
We are offering broad support to the bill but clause 79 allows the secretary to establish a performance review committee and “The function of the committee is to assess and advise the Secretary of any matter referred to the committee by the Secretary relating to the performance of a provider.” The committee has a primary function of making sure that the applicants—those who seek legal aid—get the services that they are after. In my dealings as the MP for Mana I have seen that those who seek legal aid services—and remember we are talking about people with insufficient means to get legal services on their own through no fault of their own—may be ignorant of the law and the processes around seeking legal aid. We need to make sure that the quality and processes that are in place when they seek legal aid are top-notch. 
Going back to the performance review committee as I said some of the people who seek legal advice and legal aid have insufficient means. It is a very important safeguard for those people to have the ability to go to a review committee and have 3 months in which to ensure that they are heard. They can gather the information that is required over that 3-month period in order to make sure that their application or the review of their case is heard. In terms of the performance of the lawyers who offer legal aid under the bill anyone who provides legal advice must be approved by the secretary. That is not to say that anything that lawyers offer in terms of legal aid will be adequate. So it is great that there is a safeguard mechanism within the legislation to make sure that those people who do not feel they have received adequate resources or quality legal advice from those who offered legal advice to them can go somewhere to make sure that their concerns are heard. 
SU’A WILLIAM SIO (Labour—Mangere) 
: 
 Mr Chairman— 
The CHAIRPERSON (Lindsay Tisch) 
: The question is that Part 3 stand part. 
SU’A WILLIAM SIO 
: Mr Chairman— 
The CHAIRPERSON (Lindsay Tisch) 
: The member must go for the call straight away. 
SU’A WILLIAM SIO 
: I was so busy trying to prepare my speech that I did not hear the bell ring. I appreciate very much the opportunity to speak on Part 3 of the Legal Services Bill. Before I begin because we have come back after the adjournment I want to acknowledge—as others have acknowledged—that the country is in mourning as a result of the disaster in Christchurch. Under these circumstances it is somewhat difficult to simply get into the mode of attacking members on the other side of the Chamber. It is quite difficult to get into the mood of making significant contributions as the Opposition when we know that families in Christchurch are mourning their loved ones and the loss of their homes. So I apologise for my rather slow movement to take a call on the bill. 
Nevertheless I will make reference in Part 3 firstly to clause 77 which states that “The Secretary may give a person approval to provide 1 or more legal aid services or specified legal services if the Secretary is satisfied that the person meets the criteria prescribed in regulations.” I recognise the basis for the bill but to me in so far as the wider community is concerned this is not necessarily a priority. There are people out there who are suffering and struggling to make ends meet. It seems to me that this Government has its priority the wrong side out. Nevertheless when we talk about acknowledging the facts that legal aid services are important and many many people— 
Progress reported. 
Report adopted.