Clendon David: Legal Assistance (Sustainability) Amendment Bill — Second ReadingText is incorporated into the Bound VolumeClendon David: Legal Assistance (Sustainability) Amendment Bill — Second Reading[Sitting date: 16 April 2013. Volume:689;Page:9382. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green): One would be hard pressed to say it is a pleasure to speak to the Legal Assistance (Sustainability) Amendment Bill. It is more a matter of being resigned to having to speak in opposition to this raft of justice legislation that comes from this Government. Most of it is poorly thought out and it will not deliver the results or the outcomes it is intended to produce. I did not have—Hon Maurice Williamson: Say something nice.DAVID CLENDON: I will say something nice just to please Mr Williamson.I was not sitting on the Justice and Electoral Committee for this bill. I do have to commend the select committee for this bill being significantly better or should I say less bad than it was going into the committee. I will speak in some detail of some of the clauses or some of the provisions that were in the original drafting that are frankly adisgrace and the Minister of Justice should have been ashamed to put her name to some of those draft provisions. I will come to that in time.One of the first things one notices in reading the select committee report on this bill is the intention or the proposal to change the name of the bill from the Legal Assistance (Sustainability) Amendment Bill to the Legal Assistance Bill. I guess I would say “Good try folks.” but I think you cannot really deny the fact that nevertheless this bill is about cost-cutting.As a student practitioner researcher and teacher of resource management I know a bit about sustainability. Often in the language of sustainability you are talking about resource allocation and particularly the allocation of scarce resource. The scarce resource we are talking about here under this Government is access to justice which is becoming increasingly scarce in this country with the array of legislation that we are seeing put into place. Misguided policy in the Family Court proceedings is another very good example or rather a very poor example of that. So I am afraid nobody will be persuaded by the change of name or the change of some elements of the bill that this is anything but a cost-cutting exercise.The Government does not seem to have woken up to the fact that the line-by-line budget reduction it is imposing on its Ministers—the obligation to snip away at every single line item—is actually a flawed and a doomed process. Any business owner or any successful business owner knows that if you try to cut every line item in your budget without thought to the consequence without thought to the cumulative effect then very quickly you will find yourself in a condition of failure. This bill will not reduce costs overall to the Government to the State or to the justice system. It will simply displace costs into other parts of that system and on the way it will also impose significant social costs which will be borne by some of the most vulnerable by some of those least able to bear those costs.That point was very well made by the District Court judges in Wellington who very carefully prefaced their comments recognising that the judiciary and Parliament stand in a relationship of tension. They were not taking a political stance; simply a pragmatic one. The point they are making is that driving down access to justice for individuals taking away the opportunity for people to get legal representation will lead to more self-representation in the court. More self-litigants will endeavour typically quite badly to represent themselves in the courts because they cannot afford to pay a lawyer and legal aid will not be available to them.What did the District Court judges in Wellington have to say about that? They said “Formal legal proceedings in which parties represent themselves often take significantly longer than they would if counsel were appointed and require judges to take a proactive role assisting the undefended party.” They make the point that it is often necessary to appoint a friend of the court—an amicus curiae if my Latin pronunciation stays with me—and that simply puts costs on the court’s budgets rather than some other place. The judges go on to say: “The District Courts are concerned that any savings made by restricting access to legal aid in summary criminal matters may be offset by an increase in the number of self-represented litigants putting pressure on court time and resources.”They go on to say that self-litigants self-representation also put extra load on court staff who experience difficulty in communicating and in getting information to people who may be itinerant who may not have a fixed address and who may have poor literacy skills and they are constantly having to explain matters. Instead of being able to speak in convenient legal shorthand as they can with legal representation they are obliged to spell it out. All this bill does as do so many others is displace costs in the misguided attempt to reduce them.There were numerous submissions to this bill as there have been for others from the legal fraternity from the profession from the Law Society from the Criminal Bar Association from individual lawyers and from community law centres and the like. Unfortunately the constant refrain we hear from this Government and indeed from the Minister is that the lawyers are simply displaying self-interest. That is a very unreasonable and an unwarranted claim—that lawyers are simply self-interested. Mr Little commented on some of the conversations he has had with lawyers and legal firms. I have had very similar conversations as recently as last night with people who are saying that many legal practices now will actually not go there with legal aid cases because they simply cannot afford to bear the loss to bear the cost that it imposes on them.It is interesting that the Criminal Bar Association in its supplementary submission referenced the Bazley report and pointed out that it recommended that criminal lawyers operate a proper business infrastructure that they deliver a high quality of service to their clients and to the courts and indeed to the justice system and that competency and seniority be properly remunerated. These are absolute obligations that any ethical legal firm or any legal practitioner professing to have an ethical basis for their practice must accept—that there is a cost to deliver these services and the bottom line is that if the legal aid provision is not sufficient to meet those costs then there is a limit to their capacity to operate ethically and properly and in a way that will fulfil their obligation.As I said there is a great deal to criticise in this bill even now. I do have to acknowledge that there were some considerable improvements made. One of them was the so-called Henry VIII provision which in the initial drafting would have allowed the Minister effectively by Order in Council to determine eligibility and to vary eligibility over time. I think the phrase was something about maintaining the viability of the whole system. Yes it does need to be viable but “Henry VIII” clauses are as we know anathema. We do not want the ability given to Ministers of any colour or of any Government to make substantive alterations to legislation. That is Parliament’s job not a Minister’s job and not by Order in Council. The “Henry VIII” clause was refused.I think one of the most disgraceful elements of the first draft of this bill—and again I give credit to the select committee for having recommended that this be taken out—is around the matter of disposable capital. In the original drafting it was proposed that a person’s capacity to pay for their own legal representation should in part be determined by an assessment of their disposable capital their disposable assets—such things as people’s furnishings their clothing their tools of trade and assistive technologies for people with disabilities. In other words under the original draft before one could claim legal aid you might have to sell your sofa and your kitchen table your clothing the tools that you use to make a living and your hearing aid. What an extraordinary and a disgraceful proposition and all credit to the select committee for having thrown that one out and I hope we do not see anything of that ilk reappearing in any other legislation.Similarly with regard to the proposition that there should be changes to the appointment processes for youth advocates the Youth Court judges came out very strongly and essentially said “This is not broken; don’t fix it.” The process works very well. The Youth Court advocates do a very good job. It is a very difficult job. They are well qualified. They meet a very high bar before they can be recognised and perform in that role. Let us not try to mend something that is not broken.I would like to very briefly just comment too that a number of submitters pointed out that the overall thrust of this bill by making access to justice less readily available to the least well-off is actually at odds with our New Zealand Bill of Rights Act. The right to consult and instruct a lawyer is embedded. I look forward to continuing thisconversation in later readings but for now suffice it to say the Greens will oppose this legislation.