Worth Richard: Legal Services Amendment Bill (No 2) — Second Reading 
Worth Richard: Legal Services Amendment Bill (No 2) — Second Reading 
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Dr RICHARD WORTH (National) 
: 
 I thank Mr Assistant Speaker for the opportunity of contributing to the Legal Services Amendment Bill (No 2). I am joined by my caucus colleagues from the National Party in opposing this legislation and in the short time that is available to me I wish to highlight why National has concerns about it. We are strongly in favour of legal aid—and I need to say that from the outset—but we have reservations about this legislation— 
Hon Mark Burton 
: You may need it one day. 
Dr RICHARD WORTH 
: As I listen to the comments across the House I am reminded of that line that the courts like the Ritz Hotel are open to everyone. That in my view well exemplifies the problems: that the cost of legal process is high and legal aid is a critical element in the functioning of an effective legal system. 
One of the things that the present Government has done—and I think it has done well—is to identify two justice sector outcomes. The second of those outcomes is this: “A fairer more credible and more effective justice system being a system in which people’s interactions are underpinned by the rule of law and justice services are more equitable credible and accessible.” So the issue is whether the Legal Services Amendment Bill (No 2) meets that test—the only relevant test in these two justice sector outcomes. Sadly I think the bill does not. 
What the Justice and Electoral Committee sought to do against the background of the submissions that it heard was to encourage Labour members to see how it might be possible—in the context of legal aid—to improve the justice system. There were two areas where we felt that the committee fell substantially short. The first was in connection with the rules as to eligibility. I believe that it is absolutely critical when someone is seeking legal aid that there are on the face of the statute clear messages as to whether he or she will be entitled to that legal aid. That is why National maintained right from the very beginning that the rules as to eligibility for legal aid in both civil and criminal proceedings are not clear and are substantially discretionary. 
The second area—which other speakers from National will take up—is the need to fairly remunerate lawyers who undertake legal aid work. From a personal perspective I believe that the provision of legal aid may well encompass a lot more than a legal aid applicant receiving legal services paid for by the State from the lawyer of his or her choice. Although National has some doubts about the success of the public defender scheme at least it can be said that there is a system—on a wholly different basis from what I have just said—that may have some chance of working albeit it has attracted hugely critical comment from the legal profession. 
I offer the view that there are other models that should be looked at. In the past I have suggested in this debating chamber a circumstance where a group of lawyers—perhaps a group of barristers or perhaps a law firm—tendered for a chunk of legal aid work and in respect of awarding that chunk of work the Legal Services Agency set some very clearly defined parameters in terms of quality performance and cost. We need to look at such innovative structures because the cost of legal aid is not inconsiderable. 
In recent times the New Zealand Law Society has taken a very active look at legal aid rates and it has done that in the context of a principle that is perhaps not well understood in this House—the principle known as equality of arms. It is the concept that the defence should be as well resourced as the Crown. These are difficult issues of course to attain in practice but that should surely be objective. One of the points that the Law Society has made I think with some strength is to argue that Crown legal aid rates—the rates that are paid to the Crown solicitors acting under warrant from the Solicitor-General—are way out of kilter with legal aid rates paid to defending lawyers. There is little doubt about that. Whether there should be an equality in those rates is one issue but I would say that certainly there is a case to bring those rates up. 
Russell Fairbrother 
: There is a case law on that. The case law doesn’t agree with you. 
Dr RICHARD WORTH 
: As I am sure we will hear from people like Mr Fairbrother who is making his usual useful contribution across the House those legal aid rates have not gone up since 1996. That surely cannot be appropriate. 
I have spoken about eligibility for legal aid primarily in a criminal context. I would also say that this issue of eligibility and its discretionary elements similarly affects civil legal aid. When we talk of legal aid we generally seem to talk about it in a criminal setting. The bill says that the basis of a grant for legal aid in criminal matters is subject to an overriding consideration of “the interests of justice”. An attempt has been made to identify those relevant criteria but the problem is that the criteria are subject to the fact that as new section 8(4) inserted by clause 5 states: “the Agency may have regard to any other circumstances that in the opinion of the Agency are relevant.” In the case of a grant for legal aid in civil matters discretionary wording is also employed. That is why National members think entitlement for legal aid should be clear on the face of the statute—so that applicants know whether legal aid will be available to them. 
In speaking against the bill I am not suggesting that there are not parts of the bill that reflect improvement. They do. There are minor aspects of the bill that are an improvement. But overall if we look at what I have acknowledged as the laudable justice sector outcomes of the Government we see that the bill falls far short. It is a pity that the chairperson of the Justice and Electoral Committee on the first bill she has had to substantially steer through the House has not been able to secure support from National. National’s position in respect of access to justice is absolutely unequivocal. We have said on a number of occasions across the House that we despair of much that is in Labour’s policy because it simply does not measure up to the access to justice criteria. [ 
Interruption 
] 
I look forward to Mr Fairbrother’s comments on the bill because it is fair to say that he offered insights in the context of submissions on the bill and I hope he will be brave enough to utter them in the House. But I fear he will not be brave enough to do so. I fear that this man who has had substantial experience in the legal aid arena will not be prepared to say to the nation and to the parliamentarians in the House what he said in the Justice and Electoral Committee about what he would like to happen. If he did there would be unanimity across the House because his views so accurately mirrored those of National. But that is a matter for Mr Fairbrother to decide. He can call across the House as much as he likes but a solid and sustained contribution from him would be infinitely more welcome. That is why National opposes the bill and when we come to office in 2008—or before and that seems increasingly likely—there will be changes to this legislation that I know Mr Fairbrother will unequivocally support.