Collins Judith: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeCollins Judith: Legal Assistance Amendment Bill — In Committee[Sitting date: 11 June 2013. Volume:691;Page:10971. Text is incorporated into the Bound Volume.]Hon JUDITH COLLINS (Minister of Justice):I must say that that speech has been an interesting historical lesson from the Hon Phil Goff who has talked an awful lot about my predecessor—and of course my predecessor is not here to defend himself. But I will take it as a compliment that Mr Goff is obviously quite pleased with some of the changes that we have brought about. I would actually like to come back to the Legal Assistance Amendment Bill and Part 1 of the bill rather than history.Part 1 of the bill amends the principal Act. It reclassifies certain eligible proceedings before the Parole Board as criminal matters rather than civil matters as they are now. This is a largely administrative change but it will make it easier to obtain legal aid for these proceedings. Part 1 also tightens the criteria by which applicants can receive civil legal aid when their income and assets exceed the relevant threshold specified in regulations. This will ensure that civil legal aid is limited to those who genuinely cannot afford a lawyer. I for one am one of the people who look in horror as we see some of these failed finance company directors on legal aid with all their money tied up in trusts laughing at the taxpayer. Some members may not find that very very sad but I certainly do.However special protections have been put in place in the case of asylum proceedings care and protection applications and some domestic violence applications. In these cases the means test will be less stringent. When a legally aided person is in arrears on previous civil legal aid debt Part 1 provides that the Legal Services Commissioner may refuse to grant further legal aid unless the interests of justice require otherwise. This provision balances access to justice with the responsibility of legal aidrecipients to repay their debts. Criminal legal aid will not be affected and this provision will not apply to vulnerable people in certain types of proceedings.Provision is made in Part 1 for a user charge to be payable to the legal aid provider in civil proceedings. Providers will be able to decline to provide services until the charge is paid or to recover the charge if the services have already been provided. The user charge is a small but significant contribution from the applicant to ensure that the legal aid system remains financially viable in the long term. Again certain proceedings involving vulnerable people will be exempt to ensure continued access to justice. Clause 11A makes it clear that legal aid amounts payable under conditions of grant are debts due to the commissioner. This will allow the commissioner to recover debts more efficiently including in any relevant court or tribunal if this becomes necessary. Interest will now accrue on all legal aid debt 6 months after the debt is finalised. The commissioner will have additional powers to collect legal aid debt from benefits wages salaries and bank accounts by issuing deduction notices. However for those who are unable to pay Part 1 protects a minimum amount of earnings to ensure the debt is repaid without causing financial hardship to legal aid debtors. It also extends current provisions allowing debt to be written off to include any interest associated with that debt.Clause 14 creates a deputy review authority to assist the existing review authority in examining the commissioner’s decisions and appointing legal aid providers. This will assist the legal aid providers or lawyers by ensuring any review applications are examined and resolved promptly. Existing legislative provisions allow caveats to be lodged against property or interests owned by a legally aided person. This ensures that legal aid debts are repaid when the property or interest are disposed of and Part 1 allows the commissioner to recover any costs such as solicitors’ fees incurred in lodging caveats before the commencement of these reforms. This will ensure the caveat provisions are used appropriately to secure legal aid debt owed to the taxpayer. Finally Part 1 clarifies that the commissioner must decline claims from legal aid providers that exceed the maximum grant amount that are not of a type approved by the commissioner or that are excessive or inaccurate and this will further bolster appropriate cost control in the legal aid area and will encourage quality and predictability in the system.I have in fact tabled today Supplementary Order Paper 250 in relation to this particular part of the bill to make provision for electronic processing of applications for legal aid in criminal cases where no discretion is required. This change will allow aid to be granted automatically if the appropriate statutory criteria are met or referred to a legal aid grants officer for further consideration if they are not met.Grants of legal aid made under proposed new section 16A are not subject to the conditions referred to in section 18 of the Act—for example the condition that the grant must be repaid. They will however be subject to a maximum grant the level of which we notified in theGazette . Grants made through electronic processing will otherwise be as if they were made under the standard process and the Legal Services Commissioner will retain her or his ability to cancel or correct the grant if an error is made. This change is an administrative improvement which will have no impact on eligibility for legal aid. It affects only internal Ministry of Justice processes. The likely impact on legally aided people and legal aid providers is that decisions are made more quickly.Supplementary Order Paper 250 also amends Part 1 of the bill to clarify the operation of certain regulation-making powers in the Act. Currently section 114(1)(b) provides that regulations can be made to prescribe methods for calculating maximum grants of legal aid. Following the Court of Appeal’s query around regulations the Government believes there would be merit in further clarifying the circumstances in whichParliament intends for such regulations to be made. This Supplementary Order Paper therefore amends section 114(1) so that regulations can prescribe fees to be paid for legal aid work the circumstances in which they would apply and criteria that would be needed to depart from the fees. This change will allow clarification of the boundaries within which Parliament expects the commissioner to exercise his or her discretion. The Government considers this a reasonable and appropriate step as it ensures that the commissioner retains his or her independent discretion to depart from prescribed rates where appropriate in a particular case.The effectiveness of this provision is supported by two other changes contained in the Supplementary Order Paper. Section 99 is amended to enable the commissioner to decline any claim to the extent that it exceeds the fees set in regulations. Section 52 is amended to give applicants for legal aid the right to seek review of the commissioner’s decision to depart from or refuse to depart from fees set in regulations in their particular case. These changes combine to ensure that not only does the commissioner retain his or her discretion to depart from prescribed fees but also there are appropriate pathways for legal aid applicants to seek review of such decisions. Thank you. I believe that Part 1 is the substantial part of this bill. It is a very sensible amendment to the primary Act and I think it is one that this Committee should support.