Legal Services Amendment Bill — First Reading 
Legal Services Amendment Bill — First Reading 
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Legal Services Amendment Bill 
First Reading 
Debate resumed from 1 April. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: The next call on the list is for the Labour Party should it wish to take it. 
Hon SIMON POWER (Minister of Justice) 
: 
 I raise a point of order Mr Speaker. Just as a point of clarification the stand-in senior Government whip made the comment to me that I had some time remaining. It was my understanding that my speech had concluded last evening but if it had not then I am happy to carry on speaking. That is my understanding. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: That is correct as I recall the debate. I was in the Chair last night. The Minister had concluded his speech and I then said that the question is that the motion be agreed to. The call now goes to the second on the list which is generally to the Labour Party should it wish to take the call. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I was interested in what the Minister of Justice Simon Power said; unfortunately I was not able to hear his contribution to the debate last night— 
Hon Simon Power 
: I thought the member was going to say she didn’t have a copy of the speech. 
Hon LIANNE DALZIEL 
: I did not have a pre-existing copy of the speech; that is quite true. 
I want to speak in favour of the Legal Services Amendment Bill. I believe that this is a very important amendment and probably rather timely given that the Minister has just announced a review of the legal aid system as a whole. The fact that we need to deal with this legislation highlights one of the main issues that need to be addressed—that is that in some instances financial eligibility testing and repayment conditions are utterly and completely inappropriate. The first classic example is where the victim of a crime wants to make representations at a parole hearing. The second example is in a coronial inquiry at the coroner’s hearing. I personally have experienced attending a coronial inquest with constituents and I know that it can be extremely hard for people who have been the victims of a systems failure as they were at Christchurch Public Hospital in 1995. It would be even harder if the victim of a crime had died as the result of a very serious violent offence. For people to ensure that they are properly represented in that environment from time to time they will want to call on legal representation. 
I just want to share this observation with the House. Having attended a coroner’s inquest with some constituents back in 1996—I think it was—it became very apparent to me that everybody in that room was represented legally except for the families of the people who had died. They were the only ones who had no representation; they had only me. And the only reason they had me was that I was prepared to go along and stand alongside them. In fact the coroner had to make an exception to the rules about who could ask questions so that I could ask questions on their behalf as I did not have a current practising certificate at the time; the coroner made a remarkable exception. That situation really opened up my eyes to something that is seriously wrong in our coronial system. As I say everyone else in that room was represented—the doctors were represented the nurses were represented and the Crown health enterprise was represented. 
Hon Ruth Dyson 
: Oh the bad old days! 
Hon LIANNE DALZIEL 
: Yes the bad old days. The insurance companies were all represented. At not one of the four hearings I attended on behalf of the families of people who had died at Christchurch Hospital did people actually approach the family members to say they were really sorry about what had happened. The reason they had not approached them to say they were sorry was because of the old insurance principle that one never says one is sorry when there is going to be a review of what occurred because if one says one is sorry that might somehow be an admission of liability. Members might remember that when they get into a rental car there is a little tag that tells drivers that if they are involved in an accident they must not say they are sorry. They must not admit liability or do anything that might mean the rental company has to pay money out on their behalf. 
It is fundamentally important that family members are represented at coronial inquests. I think it is vitally important that their voices are heard in that environment and that the right questions are asked. Just in the last week we again arranged for a law firm to represent a constituent at a coronial inquest. My assistant in my office in Christchurch accompanied my constituent to the coronial inquest and she informs me that if my constituent had not been represented there would have been an absolute whitewash because the entire process was around defending people against being blamed for certain actions that occurred that cost this woman her husband’s life. It is fundamentally important that people are represented in these environments especially when the other interests are represented by highly skilled counsel as they invariably are when the consequences are so great. 
I believe that adjusting the financial eligibility testing criteria for the victims of crime in a coronial setting is absolutely appropriate. I would probably want us to consider going a step further and making that service available more generally because the consequences may not be directly obvious in terms of the criminal offence; it may be in fact that a form of civil liability lies behind the series of events that occurred and it may not meet the standard of criminal offending as set out in this bill. One might be a victim of what might be described as “criminal” in a general sense but not of what is described as offending in the very explicit provisions of this legislation. That is certainly a matter that the select committee could look at while it is looking at this bill; it is very very important that people are properly represented in this sort of environment. Removing the financial eligibility testing enables the victims of crime—or essentially their families—to be represented legally in an environment where everyone else is legally represented. 
In terms of the Parole Board hearing I think it is absolutely vital that there is access to legal representation for those who want it. Some people prefer to speak from the heart to tell their own story and to represent themselves. Many find it incredibly empowering. To be able to express how one feels about things after having been the victim of a crime is often a very empowering process which is why I am a great proponent of what is described as restorative justice. 
Sometimes it is actually better that people front up to admit to what they have done than to continue to deny what has occurred and never ever take responsibility for what has happened. I want to tell a short story in relation to this because I think it is worthy of comment. I remember visiting Paremoremo prison a number of years ago. We were told the story of a couple of men who had been convicted of rape. They were coming to the end of their sentences and were due to return to their community. The young woman who had been raped by them approached the prison and asked to meet with them. She came from a very small town in New Zealand. In fact she told the prison manager that the town was divided: half the town believed her and half the town believed these two men. Their imminent release was causing her great consternation because that whole talk had started again and she could not face going through again what she had been through with half the town believing that she was not telling the truth. In the end the prison agreed to this meeting and she explained to the men why she wanted them to tell the truth. They actually admitted that they had raped her and were prepared to admit it publicly in the town. That moment’s meeting was far more restorative in its effect and far more empowering for the victim of the crime than those men paying their debt to society which I believe they ought to do—that was what the prison sentence was for. But the men fronting up and taking responsibility for their criminal action was the most empowering thing for the victim of the crime. 
I fully support this legislation. It is important for those who want to be legally represented that we reduce the financial eligibility criteria and also that legal aid debt is written off right from the outset so that they know they do not have to repay it. I commend this bill to this House; it will be welcomed throughout New Zealand. 
SIMON BRIDGES (National—Tauranga) 
: 
 It is good to speak after what was a thoughtful and eloquent speech if I might say so by the Hon Lianne Dalziel. Her anecdotes from the coronial inquest and parole board hearing put into a powerful story form what this Legal Services Amendment Bill is about and why this bill will be achieving some great purposes and doing a good job towards justice and access to justice in this country. This bill is about two things. Firstly it is about victims’ rights—and I will talk about that. It is about removing the eligibility testing requirements for legal aid for victims who either attend coronial inquests or parole board hearings or for the making of victims’ claims. Secondly it is about flexibility. Rather than a one-size-fits-all approach it grants the Legal Services Agency discretion to waive its right to recover legal aid debts in cases where individual circumstances mean enforcement would cause serious hardship or would be uneconomic or where it is just inequitable to enforce the debt. This bill creates the power to make regulations exempting specific classes of people or proceedings from eligibility restrictions or repayment obligations. 
It is a good bill and I want to go back to the basics in relation to legal aid. Legal aid is important in our society and in criminal law because where the State brings a case against an individual the individual must be able to defend himself or herself. It is a basic fact that he or she may not always have the wherewithal to do that. Criminal law however is not just about that basic “State versus the individual” scenario; cases of the  
Queen v Smith 
 and the  
Queen v Jones 
 reflect that basic relationship between the State that brings the charges and prosecutes and the individual who is forced to defend himself or herself. 
But importantly our criminal law system is about the redressing of criminal wrongs for victims. As we as a society have become more sophisticated and—can I say—humane we have increasingly recognised victims’ rights. We have recognised that things are not just about the State and the individual charged but that victims have an important role to play and are significant actors in the criminal justice system. Just as individuals who are up against the State—defending charges going to parole hearings and the like—have costs in the criminal case so do victims who have very real costs in advocating their position in the criminal process. Although it is basic the point I make is a pretty fundamental one: that victims deserve and have a right to financial assistance just as the accused pre-conviction and the prisoner post-conviction also have a right to legal aid in certain circumstances—certainly when they cannot afford it themselves. 
I want to dwell on the victims’ rights movement. Some time ago traditionally victims in the court process did not have any rights at all. There is still some way to go and in my view we are on a journey towards much better victims’ rights. I want to highlight some parts of the journey that I think this House has proceeded with and worked through. There is the Victims’ Rights Act 2002 by my recollection which was brought in by the previous Labour Government. It allows victims to read victim impact statements in court. I have seen that happen many times. It can be an emotional and cathartic experience for the victims and for the prisoners—that was a step forward. We have also had—much more recently under this Government—the victim compensation law. It provides for a levy and it is on its way to a select committee—I look forward to robust discussion there. 
We now have this bill which is a further step in the journey towards victims’ rights. The provisions of this bill ensure that victims of crime attending Parole Board hearings or coronial inquests are not subject to financial eligibility testing. In my view that is hard to argue against. The people of Tauranga certainly would not argue against that. We heard some examples from Lianne Dalziel. Another example is the case of the mother of two boys whose father was murdered by Graeme Burton. It is my understanding that because of the financial eligibility testing she was asked to pay the money back for the legal representation she provided to her sons at the coronial inquest hearing—that is not good enough. It is another powerful example of why we as a House united have brought this bill here. 
The bill that we debated earlier today—and again with the exception of the Greens there was nearly unanimous accession—was the Parole (Extended Supervision Orders) Amendment Bill. It specifically relates to child sex offenders. Those cases clearly show again the value of this bill. When child sex offenders come up for parole the victims and their families should be able to raise their issues effectively. As Lianne Dalziel said sometimes they will want to do that in person but also through counselling should they think that appropriate. The definition of “victim” in this bill before the House makes it quite clear that primary victims and the parents of those victims—if the victims are still children—will be able to now do that without means testing. A basic but important point is that it takes away the eligibility testing for victims in two situations: post-conviction and on the death of a person. We still have financial eligibility testing in a vast majority of cases but here in relation to victims we do not add insult to injury and make them go through the means testing. In an example of parents whose son has died in a motor manslaughter case as a society I do not think that we want to add insult to injury and have them pay for their legal representation at coronial inquests. Nor do we want to see parents or victims in child sex offender cases put to expense for the parole hearings. I commend this bill to the House. I think it is another step in the journey for victims in this country. 
Hon DAVID PARKER (Labour) 
: 
 I rise to support the Legal Services Amendment Bill and to endorse the comments of earlier speakers. I do not think there is much disagreement as to the fundamental principles of this bill. This bill was developed in principle by the previous Labour-led Government it was supported by virtually every party in this House and I thank the National Government for advancing the legislation at this stage. 
I will mention just a couple of things. I too agree that particularly in respect of coronial hearings it is important that legal aid be available. I think that most members of Parliament and indeed many members of the population can see that this is just. 
I know this from my own experience. My brother-in-law was killed in a car accident. His wife—my sister—was left with two young children. The suggestion had been made before the coronial hearing that the accident was the fault of my deceased brother-in-law. That issue caused upset to his family including my sister. In order to have justice done to them they felt the need to attend the coronial hearing and put the record straight. It was only through their attendance at the coronial hearing that they were able to show that the driver of the truck in the accident had cannabis residue which had not been properly tested for by the police or the hospital authorities following the accident. That evidence left the suspicion that the accident was in fact caused by the truck driver rather than by my brother-in-law. 
That evidence would not have been able to be exposed were it not for my sister’s ability to access legal services at the coronial hearing. It so happened that because my sister is not a destitute person and because she had the advantage of my being associated with a legal firm she was able to have reasonable legal fees that were probably lower than market rates and she was able to afford to pay those. In her circumstances she was able to avail herself of legal representation and to put the record straight. But there are many people in New Zealand who cannot and that is why legal aid is necessary. 
 Indeed as in the situation of my sister even though she could afford legal representation it is quite often true—as Simon Bridges pointed out—that the fault of the State in some of these instances should be highlighted. It is proper that the State enables the victims of crime or their close family members in cases where someone has died as a consequence of crime to have access to legal representation in order for the actions of the State to be questioned. The proper questions need to be asked as to whether something should have happened differently and in order for injustices to be avoided. 
I will also say something in relation to parole hearings. We need to be a bit careful in this House that we do not create an expectation that a victim of crime can always and forever repeatedly—and at the cost of the Crown even if unreasonably—oppose parole. I am not suggesting that this bill allows that expectation but I think it is an important issue. We ought not fall into the trap of accepting the proposition that people ought never get parole that they can never be rehabilitated and that it is the right of the victim to determine that outcome. 
I do not say the bill does that and I acknowledge that victims of crime have a relevant role in parole. I am not saying they do not have a relevant role in parole but I think we need to take care that we do not create an expectation that the victim of a crime determines the outcome of the parole decision because of the terribly sad injustice that has been suffered by the victim. I am not denying that injustice; neither am I denying the effect crime has on a victim’s family. But the decision as to whether and when parole is appropriate ought not to be left only to the victim. Some victims would make a wise decision and might make the same decision as a parole hearing but some victims would not. Some victims and families of victims will never be able to accept that parole is appropriate. 
David Garrett 
: When do you think William Bell should be released? 
Hon DAVID PARKER 
: I do not know when William Bell should be released. I do not deny the relevance of the victims’ viewpoint in parole hearings but I do not think that just because a victim says someone should not get parole that should be the end of the matter. 
Fiscal costs to the Crown are relevant. It costs a lot of money to keep people in prison. David Garrett will be able to correct me if I am wrong but I think the current figure is about $60000 per annum per person in prison. Obviously people do not want to incur that cost unnecessarily because if $60000 was being spent on measures to prevent crime or to prevent the criminal from committing another crime then that would be a better use of money than keeping someone in jail inappropriately. In addition to that there would be injustice for the person who was kept for too long a period in prison when he or she ought not to be there. 
David Garrett 
: What’s too long for Mr Bell? 
Hon DAVID PARKER 
: Well again I tell Mr Garrett who takes the view that the victim should effectively have the say on parole that we have judges in our justice system to make those difficult decisions. We have parole hearings in which those difficult decisions have to be made balancing all the interests. One of the interests we balance is the opinion of the victim but it is not the only interest. 
I do not want this Parliament in this debate to let that issue go unreferenced because I certainly do not think that we on this side of the House see this legislation as going to that extent. We believe that there is a role for parole. Although the victims’ statements are relevant they are not determinative of the outcome of the parole hearing and we must trust due process taking into account relevant factors to make the best overall decisions. 
Finally in respect of parole we know that without parole most people in prison eventually get out with less control placed on their post-release conduct than occurs under parole conditions. Parole is used around the world as a way to reduce recidivism because the control that can be exercised through parole conditions means that fewer people reoffend than if they were left in prison until the end of their sentence and were then released without control. 
The other point I agree on is that it is becoming increasingly necessary to have representation at coronial hearings because of the increasing sophistication of the way in which we live the way in which we can bring evidence to bear to ascertain the cause of death and the prevalence of the way in which we see agencies of the State. Again I am not criticising the agencies of the State for defending their position in respect of events but if we take the case of Karl Kuchenberger— 
David Garrett 
: Get his name right. 
Hon DAVID PARKER 
: I say sorry to Mr Garrett. I apologise for that mispronunciation and I apologise to the family. If we take the case of Karl Kuchenbecker we can argue that it is correct to say that there were some very bad failures by organs of the State. Those organs of the State may have been less than quick to fess up to their mistakes in a way that would have been unfair to the deceased and to the family of the deceased. It is absolutely appropriate in that situation that the actions of the State are properly questioned by those people who are affected with legal representation that enables them to participate in the process meaningfully through their legal counsel when without legal representation their interests would be prejudiced. That is what this bill achieves. It achieves fairness for people in that situation and also fairness for the victims of crime. 
Dr KENNEDY GRAHAM (Green) 
: 
 I rise to express the Green Party’s support in general for the Legal Services Amendment Bill. The bill responds as I think we all realise to concerns raised last year about the availability of legal aid for victims of crime who need to attend certain proceedings. 
Along with my Labour colleague David Parker and others who spoke before me we are in fundamental agreement with the principles of the bill. We note the insertion of the definitions of “offender” and “victim” which is a step in the right direction. I note the proposal that the bill provide that the Legal Services Agency may at any time decide not to recover a legal aid debt on various grounds—for example if the enforcement of the bill’s recovery would cause serious hardship to the aided person if the agency considered that it would be just and equitable not to engage in that recovery and for other reasons as well. We endorse that. 
In general the Green Party sees this as far from the ideal which would be the establishment of a comprehensive compensation scheme for victims but it does take us a little closer towards that ideal. On those grounds we are happy to support the bill’s referral to the select committee. 
DAVID GARRETT (ACT) 
: 
 I rise to support the first reading of the Legal Services Amendment Bill. Members will be aware that it is not very often that an ACT MP when standing up in this House is standing up to support increased Government expenditure. But we are not the anarchists nor are we Mr Perigo’s tiny Libertarianz party. We believe that the Government does have a role to play in our society and its most important role is to ensure that New Zealanders are kept safe from thugs bullies and sex offenders. Sadly that cannot always be the case. We have criminals in New Zealand and unless human nature fundamentally changes which is unlikely we always will have. 
When those criminals commit crimes against the person by definition they leave victims. There is a role for the State in reducing the effects of criminal offending and indeed in reducing the incidence of crime itself. I make no apology—like my colleague Amy Adams when speaking on the Parole (Extended Supervision Orders) Amendment Bill—for being concerned primarily about the rights of victims and about ensuring that they go through as little further harm as possible. It is for that reason that I rise today to support this bill. 
The Legal Services Amendment Bill seems to make three key changes. Firstly it will allow the Governor-General by Order in Council to make regulations to exempt particular classes of persons or proceedings from financial eligibility testing or repayment or both. Secondly it will enable the Legal Services Agency to write off legal aid debt when the individual circumstances of the persons who have received legal aid make it inequitable for the agency to seek recovery. Thirdly and lastly it will ensure that victims of crime who attend a Parole Board hearing or coronial inquest are not subject to financial eligibility testing. 
I am very happy to be on the same side here as the Hon Lianne Dalziel who spoke earlier about representation at a coronial hearing. I had the dubious pleasure of attending a recent Parole Board hearing on behalf of some victims—family members whose loved one had been murdered in a most gruesome and horrible manner more than 10 years ago. Every year that family because of the law in place at the time have to appear before the Parole Board—or they feel they have to; there is no legal obligation on them to do so—to keep the memory of their loved one alive and to keep reminding members of the Parole Board of just what they have lost. I will not provide any more details about the person or the family for obvious reasons. 
Those people having been appearing before the Parole Board for some years are now unable to represent themselves. If I was not in the Chamber I would use a colloquial expression which I am sure members can guess to describe their situation. They are so affected by having that experience every year that when I met them I was appalled. They were shaking. They were in a terrible terrible state so they had asked that they have legal representation. They had asked that I come up and advocate for them before the Parole Board. I was there pro bono for the victims and because of my own association with the Sensible Sentencing Trust. I suppose that technically the family were not my clients as I was not being paid as was the case with the Hon Lianne Dalziel’s clients. 
Other victims in the community who are unaware of the various support agencies or organisations available are not able to access legal representation at no cost. Those people have every right to legal representation. All members of this House should make an effort at some point to meet a family who have suffered a homicide particularly gruesome homicides that have left dependants behind. If they did it might give them a bit of the perspective they now lack. 
It is estimated that $20 million a month is claimed in insurance for the costs of crime and that is only for people who are lucky enough to have insurance—people like us in this House: generally educated middle-class people who are all insured. But what about the people who are not insured—the very poorest in society whom the members on the Opposition side of the House claim to have the most concern about and to represent? They are the ones who can least afford the debilitating costs of crime and they certainly cannot afford to pay for lawyers to represent them at Parole Board hearings. The members opposite seem not to grasp that the victims are primarily their former constituents. They are the poor people and the people living in South Auckland; they are not middle-class white guys like me by and large. The costs for those people of replacing their stolen television set fixing their broken window or reseeding their torn-up lawn because some hoon decided to do a doughnut on it are significant one-off or ongoing costs for those people. 
But financial costs are really the least of the costs faced by people. When the crime is physical the psychological scars—as I have recounted to the House regarding my own clients recently—are there for life. I do not think the people I met and represented will ever get over the crime. They have certainly made every effort to—they have had counselling; they have taken advantage of whatever is available—but they will never get over it. Up to now those people have had to apply for and in some cases be declined legal aid for representation. That is the kind of situation that this bill addresses. 
In closing I will say a couple of words regarding the comments on parole of one of the previous speakers David Parker. It is correct that under our present system the ultimate arbiter of whether a person is released is not the victim. Let me personalise the situation and talk about whether Mr William Bell or Mr Graeme Burton should be released. I hear that Mr Burton has just had another go at killing someone today so he will be charged with another attempted murder. He will keep on doing it because what does he have to lose? He is a psychotic but an intelligent psychotic and he will keep on doing it. I make no apology for saying that that man should never ever see the light of day except in a box. Members on the other side of the House say that we need to reserve judgment on the matter; I am sorry but I do not agree. 
That is our present system and it is correct to say that the victim is not the ultimate arbiter of whether a person is released from prison; it is the Parole Board. But under the Sentencing and Parole Reform Bill presently before the Law and Order Committee the elements contributed to the bill by both National and ACT will take away that discretion in certain circumstances. The National parts of the bill provide for life without parole for our worst murderers like Mr Burton and Mr Bell; they will not be eligible for parole. I support that view wholeheartedly. The “three strikers”—the people who persist in committing serious violent offences and who have served at least two lengthy prison sentences and then committed similar offences—will go away for 25 years to life with no parole. I will be very glad to see that happening. In closing I say that we fully support this bill. 
Debate interrupted.