Bennett David: Legal Services Amendment Bill (No 2) — Third Reading 
Bennett David: Legal Services Amendment Bill (No 2) — Third Reading 
[Volume:630;Page:2384] 
DAVID BENNETT (National—Hamilton East) 
: 
 The National Party opposes this bill for very good reasons. The whole concept of legal aid is based on providing a fair level of representation for those in need of legal assistance. The most vulnerable in our society need a standard of representation to enable them to defend themselves. That is National’s concern about this legislation. The bill does not address the fundamental concept of ensuring adequate representation. The bill fails to provide an adequate method and process for the calculation of legal aid to reflect the costs of providing such services. 
The bill extends the eligibility of legal aid and allows a further 25000 grants of legal aid per year. The thresholds will be regularly updated by linkage to the consumer price index. But there is no such regular update for the cost of the provision of the legal aid services. There needs to be a similarity between the eligibility for and also the payment of legal aid services. The legal aid segment of the legal profession is in crisis. The Government should be addressing the provision of legal aid services not just the criteria for accessing those services. 
One may ask: “What then is the problem?”. Well it is a matter of: “If you pay peanuts you get monkeys.” For a number of years under this Government legal aid lawyers have not had an increase in their legal aid fees. Add to that the high cost of administration of legal aid cases and there is then no incentive for lawyers to undertake this work. The result is situations such as we heard in this House of defendants preferring to go it alone rather than take on the risk of counsel they do not trust. This is compounding the problem as even the most needy are having to defend themselves. So we get a situation where vulnerable clients are getting insufficient representation. 
Some say that it is an issue for the profession and that the profession should have the ability to set the fees. If that is the case why was that not put in the legislation? We do not see in the bill that the profession has the ability to set the fees. It is simply not good enough to increase the eligibility without at the same time dealing with the provision of those services. 
We welcome any moves at a select committee to deal with this issue. So it is appropriate that Ron Mark has approached that issue and said the opportunity is there in the future. We encourage him to continue with that process. 
A novel approach suggested in this House was to make it a requirement for lawyers to serve as legal aid counsel at some point in their career. Although at first glance this may seem appropriate it has a number of problems. First most people in the law have no intention of undertaking and will never undertake court work. In fact it is possible to go through law school without even doing courses such as evidence. This reflects the fact that the law is becoming a generic degree and also that most of the work is actually in commercial conveyancing and specialist fields. A mandatory requirement could add to the injustices as untrained and uninterested lawyers may be required to represent clients. 
Secondly any attempt at specifications will be flouted. Lawyers traditionally will find ways around any rule. They will find ways and means to make themselves unavailable and even if they are made to do the work they will not represent the client with the conviction the client would require. 
Thirdly as a matter of fairness and equity lawyers cannot be expected to provide a public service requirement that is not required in other professions. Do we require accountants to do community group audit work each week for free? Do we require engineers to work for Transit one day a week at reduced rates? No we do not. We do not expect these things so why should we expect them from lawyers? 
Effectively we would be requiring a bonding regime for lawyers. Typically bonding regimes are suggested for expensive qualifications such as medicine or where there is a shortage of qualified persons such as in the teaching profession. None of these fundamental drivers apply to the law. Legal qualifications can be a relatively inexpensive form of university degree. Also we tend not to have a problem of not enough people wanting to become lawyers in New Zealand. Therefore it would be inappropriate to place a bonding regime on lawyers. 
The arguments of avoiding a culture of imprisonment advocated in this House are actually compromised by this legislation. Without a system providing for effective representation the likelihood of conviction and imprisonment is increased. Therefore an effective resourcing of the legal aid practitioners would be in the Maori Party’s best interest as it would provide for the effective defence of those requiring such systems. 
The reality is that legal services are like any other commercial service—one gets what one pays for. There is no inherent obligation on lawyers to be treated differently from any other profession and this Parliament cannot engage in such an unfair requirement. What it does show however is that if people want a certain level of legal service then they need to pay what the market demands for those services. The reality is that the Government is underfunding those legal services and this bill does nothing to rectify that situation. It is only through providing a realistic level of funding and a process to keep up with the increased costs of providing that service that true representation will be attained. With true representation those in most need will be given the protection the legal aid system is required to provide them with.